Whitney v. Inhabitants of Sherborn , 94 Mass. 111 ( 1866 )

Bigelow, C. J.

The first instruction asked for by the counsel for the defendants embodied a correct statement of the rule of law applicable to one aspect of the facts proved at the trial. The omission to give it was error, because it left the jury without any rule for their guidance in case they found the facts to be as stated. But this was not the only eiror. The jury were misdirected by the instruction that, in order to find the plaintiff’s residence to be in Sherborn, they must be satisfied that on May 1st 1862 he was residing there “ with the purpose of making it his permanent home and residence, and of not returning to Ashland.” The proper instruction would have been, that if the plaintiff was residing in Sherborn on May 1st 1862, with an intention to remain there for an indefinite period of time, and without a fixed purpose to return to Ashland as soon as his work in Sherborn was completed, or if the latter purpose was uncertain or doubtful, then his legal domicil would be in Sherborn. The plaintiff must have a domicil somewhere. It could not be in Ashland, if he had gone to reside elsewhere having no intention to return to his old home, or if his purpose was unformed or indeterminate, either as to the length of his residence in Sherborn, or as to his eventual return to Ashland. If such was the state of the case, there could be no concurrence of fact and intent, which would be necessary in order to create a legal domicil in the latter place. Mead v. Boxborough, 11 Cush. 362. Holmes v. Greene, 7 Gray, 299. Carnoe v. Freetown, 9 Gray, 357. Exceptions sustained.