Inhabitants of Richmond v. Inhabitants of Vassalborough , 5 Me. 396 ( 1828 )

Mellen C. J.

delivered the opinion of the Court.

The jury having, upon a consideration of all the evidence, return-ad a verdict, against the defendants, judgment is to be entered thereon, if the instructions given to ;them were correct, and if those which were requested were improperly withheld. With respect to the instructions given, we perceive no incorrectness. Tt certainly does not require argument or authorities to shew that the character of the residence and home in a particular town, under the statute of March 21, 1821, depends in no degree on the question whether such residence or home was on land, and in a house by permission of th« owner; the lawfulness of the possession in such cases is not contemplated by the statute. Nor do we perceive that in the present case the circumstance can have any effect directly or indirectly on the question of domicil; for Burgis himself, if conusant of the nature of his wife’s entry into and occupation of the house in Vassalborough, which she found empty, does not appear to have authorised or consented to it. Neither does the criminality of the wife in the instance mentioned, alter the case. The court do not look to the virtues or vices of a. pauper, or of his wife, in ascertaining the place of his legal settlement. Besides, in respect to the question of intention, her crime could have had no effect, inasmuch as the husband had no knowledge of it until their reconciliation in April 1821.

In regard to the inquiry, whether the requested instructions were properly withheld, we would observe that the answer must depend on several facts which we shall notice, and on the principles applicable to them. In the first place,we are perfectly satisfied, that from the time Burgis moved into Vassalborough in the fall of 1819, to the time he went to Gardiner, early in the autumn of the next year, he resided and had his home in Vos--salborough. The case discloses all those facts necessary to establish this position beyond all doubt. We are equally clear that the temporary residencé of the wife in China, and change of the place of her residence in Vassalborough, both having been her acts merely, without any authority or consent of Burgis, had no effect upon his rights and liabilities as an inhabitant of Vassalborough. Such a power as this does not belong to a wife; and public policy and the nature of the marriage contract, do not admit of it. The residence •and home of Burgis, in the town of Vassalborough, not having been changed or lost by any act of his wife, our next inquiry is, whether the same consequences were occasioned by the acts of Burgis himself, and that by means of those acts, he acquired a settlement in Gardiner, by residing and having his home in that town on the day the statute was passed. The case of Knox v. Waldoborough, 3. Greenl. 455. shews that a residence of a man, even out of the United States, does not change his domicil, where he leaves a home and family in a town in this State, for the purpose of business, or seeking employment. In the case before us, Burgis left his wife and children at his home in Vassalborough, when he went to Gardiner in the fall of 1819. His object in going was two-fold : viz. partly to seek more profitable employment, and partly on account of his being dissatisfied with the conduct of his wife. He did not abandon his family; he furnished them small supplies on two or three occasions, while residing ip Gardiner ; and the case finds that he had formed no absolute resolution never to return and live with his family. His resolution on this subject, when he went to Gardiner, was only conditional, depending on his wife’s conduct; and while thus continuing conditional, a reconciliation took place, and, in consequence, he immediately sent to Vassalhorough, and moved his children and furniture to Gardiner. All this took place in April. From these facts, it appears that he never absolutely deserted his wife and children, nor ever absolutely resolved so to do; and never having done either, what circumstance is there' in this case, which operated to change his home from Vassalborovgh to Gardiner, till the actual change of it in April, by removing his children and furniture to Gar-diner, where he and his wife then were ? We do not perceive any. The facts of the case are certainly singular, but the legal principles which must decide the cause, are simple and well settled. In numerous cases arising under the statute of 1821, the question of dom-icil has depended on intention; for instance, as in Knox v. Waldoborough. So in the present case. This intention is to be ascertained, in many instances, from various and equivocal facts, which of course are always proper subjects for the consideration of a jury, and from which they may infer what such intention was. All the evidence in the case before us, was submitted to the jury, that they might draw their own conclusions as to the question of intention. Only a portion of the evidence is distinctly reported, because the points reserved had relation merely to the refusal of the judge to give specific instructions, when requested, as to one particular principle ; and to the instructions which he did give respecting two other particulars, having nothing to do with the subject of intention. The jury have pronounced their opinion, as to the intentions of Burgis in going to and remaining at Gardiner. It remains for us to consider whether the requested instructions were properly or improperly withheld. The judge was requested to instruct the jury, “ that the reconciliation of the pauper and his wife in April 1821, could have no retrospective operation as to the question of domicil, but that they must regard his intention as it existed on the 21st of March, 1821, exclusively of all consideration of that fact.” Ther e is no doubt but that the jury were to regard the intention as it then existed; but in order to ascertain •what it then was, they might look to facts which took place after that time, in connection with those before. This is allowable, not to change the chaiacter or effect of antecedent facts, but for the purpose of learning distinctly what those facts were. Suppose we were this day trying a cause before the jury, and the question was, whether a pauper, when he left the town where he resided in 1820, left it with the intention of returning to his family, or of abandoning them and his - home. Surely it would be proper to prove to the jury that the man had never returned or taken any care of his family ; and the jury might properly consider these subsequent facts as aiding them in ascertaining what his intention was in the year 1820, when he left his Home and family. So in the present case, the jury were authorised to consider the fact of reconciliation in April, in connection with the previous conduct of Burgis, his conditional resolutions, the continuance of his wife and children in' Vassalborough, and his small supplies furnished to them, to enable them the better to decide the question of intention and of domicil. This question they have decided, on the evidence before them, and we perceive no sufficient reason for granting a new trial. Judgment on the verdict.-