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establish permanent residence and domicil are ambiguous and uncertain, in the absence of any settled abode, and when the real intention of the party cannot be ascertained, that the question becomes difficult. It may then require an examination into the motives of the man, his habits and character, his domestic, social, political, and business relations, for a series of years; and the answer will depend in the end upon the weight of evidence in favor of one of two or more places. It is evident that, with the increasing number of those who live each year in different places, the increased facilities for travel, and the great temptation to escape taxation by a change of domicil, cases of the latter description are becoming more common. . . It is evident that the choice of the tax-payer, as between two places of residence, is an element to be considered in determining which is the real domicil; but a choice in favor of one place will not be permitted to control a preponderance of evidence in favor of another. place of domicil, upon which so many important municipal obligations and privileges depend, is not left by the law to the choice of the citizen, except only as such choice may give character to existing relations and accompanying acts of residence which are not in conflict with it. As between different places, it may depend on a mass of evidence, which will generally include as one of its items the declared intention and choice of the party himself. The weight to be given to that intention, however honest, will depend largely upon the condition of all the evidence. If the evidence be equivocal and uncertain, then the choice may be sufficient to turn the scale; if the weight of it be one way, then an opposite intention or wish will be of little or no avail. Holmes v. Greene, 7 Gray, 299. The

The

true rule was plainly recognized in Chenery v. Waltham, 8 Cush. 327. The judge was there asked by the plaintiff, who sought to recover back a tax paid to the defendant, to rule that if the true dividing line between two towns passed through an integral portion of the dwelling-house occupied by him and his family, then he had a right to elect in which town he would be assessed on his personal property and be come a citizen. This was refused, and it was ruled that if the house was so divided by the line as to leave that portion of it in which the occupant mainly and substantially performed those acts and offices which characterized his home (such as sleeping, eating, sitting, and receiving visitors), in one town, then the occupant would be a citizen of that town, and no right of election would exist; and that if the house was so divided by the line as to render it im possible to determine in which town the occupant mainly and substantially performed the acts and offices before referred to, then the occupant would have a right of election, and his election would be binding on both towns. The rule thus laid down was declared by the full court to be sufficiently favorable to the plaintiff, on the question of his right to elect. In the law of domicil, it is settled that a person can have but one domicil at the same time for the same purpose; that domicil, once acquired, remains until a new one is acquired; and that a new one is acquired only by a clear and honest purpose to change, which is carried into actual execution. Applying these maxims to the facts, in all disputed cases, it is the duty of the court to submit each case to the jury with instructions adapted to its peculiar aspects." See also Weld v. Boston, 126 Mass. 166, where a similar election was made without avail.

house is first regarded, in contradistinction to any place of business, trade, or occupation. If he has more than one dwelling-house, that in which he sleeps or passes his nights, if it can be distinguished, will govern. And we think it settled by authority, that if the dwelling-house is partly in one place and partly in another, the occupant must be deemed to dwell in that town in which he habitually sleeps, if it can be ascertained. Lord Coke, in 2 Inst. 120, comments upon the statute of Marlbridge respecting courts leet, in which it says that none shall be bound to appear, nisi in balivis ubi fuerunt conversantes; which he translates, but in the bailiwicks, where they be dwelling.' His lordship's comment is this: "If a man have a house within two leets, he shall be taken to be conversant where his bed is, for in that part of the house he is most conversant, and here conversant shall be taken to be most conversant.' This passage, at first blush, might seem to imply that the entire house was within two leets. But no man can be of two leets. 2 Doug. 538; 2 Hawk. P. C. c. 10, § 12. Indeed, the whole passage, taken together, obviously means, a house partly within one leet and partly within another; otherwise, the bed would be within the two leets, as well as the house. It is then an authority directly in point to show that if a man has a dwelling-house situated partly within one jurisdiction and partly in another, to one of which the occupant owes personal service as an inhabitant, he shall be deemed an inhabitant within that jurisdiction within the limits of which he usually sleeps. The same principle seems to have been recognized in other cases, mostly cases of settle ment depending on domicil. Rex v. St. Olaves, 1 Str. 51; Colechurch v. Radcliffe, 1 Str. 60; Rex v. Brighton, 5 T. R. 188; Rex v. Ringwood, 1 Maule & Selw. 381. I am aware that the same

difficulty may arise, as before suggested, which is, that the occupant may not always, or principally, sleep in one part of his house; or if he sleeps in one room habitually, the dividing line of the towns may pass through the room or even across his bed. This, however, is a question of fact depending upon the proofs. When such a case occurs, it may be attended by some other circumstance, decisive of the question. If the two principles stated are well established, and we think they are, they are, in our opinion, sufficient to determine the present case. It becomes, therefore, necessary to see what were the facts of this case, and the instructions in point of law upon which it was left to the jury. The plaintiffs contended that two monuments pointed out by them were true and genuine monuments of the Colony line, and if so, a straight line drawn from one to the other, would leave the house in North Bridgewater; and the jury were instructed, if they so found, to return a verdict for the plaintiffs. But the jury stated, on their return, that on this point they did not agree, and therefore that part of the instruction may be considered as out of the case. It is therefore to be taken, that in point of fact the line ran through the house, leaving a small part in Randolph and a large part in North Bridgewater. In reference to this, the jury were instructed that if that line would leave a habita ble part of the house in Randolph, the verdict should be for the defendants; otherwise, for the plaintiffs. The jury were also directed to find, specially, whether the beds of the family in which they slept, and the chimney and fireplace, were or were not in North Bridgewater. The jury found a verdict for the plaintiffs, which in effect determined, in point of fact, that the line did run through the house, leaving a small part in Randolph; that the beds and fireplaces of the house were on the

North Bridgewater side of the line, and that there was not a habitable part of the house in Randolph. What was the legal effect of this instruction to the jury? To understand it we must consider what was the issue. The burden of proof was upon the plaintiff's to prove that Hill had his settlement in North Bridgewater. But proving that he had a dwelling-house standing partly in North Bridgewater and partly in Randolph would leave it wholly doubt ful whether he had his domicil in the one or the other, provided that the line passed the house in such a direction as that either would have been sufficient for the purpose of a habitation; because it would still be doubtful whether he dwelt upon one or the other side of that line. But if the line ran in such a direction as to leave so small a portion on one side, that it could not constitute a human habitation, then the position of the dwelling determined the domicil. In any other sense, we see not how the correctness of the instruction could be maintained. If the term, 'habitable part of the house,' was intended to mean a portion of the house capable of being used with the other part, for purposes of habitation, and the whole constituting together a place of habitation, then every part of the house capable of being used, would be a habitable part. The instruction was, that if a habitable part was in Randolph, the occupant did not acquire a domicil in North Bridgewater; it would be equally true in law, that if a habitable part was in North Bridgewater, he did not acquire a domicil in Randolph. If the term 'habitable,' then, were used in the restricted sense, capable of being used as a part, and not as the whole of a human habitation, the instruction would amount to this, that living ten years in a dwelling-house divided by an imaginary line into parts, both of which are useful and capable of being used as parts of a dwelling-house, the occupant

would acquire no domicil. But this is utterly inconsistent with the principles of domicil. By leaving his domicil in Abington, and living in the house in question, Hill necessarily lost his domicil in Abington, and necessarily acquired one by living in that house; and this must be in either Randolph or Bridgewater, and not in both. It may be impossible from lapse of time, and want of evidence, to prove in which, and therefore the plaintiffs, whose case depends on proving affirmatively that it was in North Bridgewater, may fail; nevertheless it is equally true, in itself, that he did acquire a domicil in one, and could not acquire one in both of those towns. Suppose the proof were still more deficient; suppose it were proved beyond doubt, that Hill lived in a house, situated on a cleared lot of an acre, through which the town line were proved to run, but it were left uncertain in the proof, on which part of the lot the house was situated. It would be true that he lost his domicil in Abington, and acquired one in Randolph or North Bridgewater; but it being entirely uncertain which, the plaintiffs would fail of proving it in North Bridgewater, and therefore could not sustain their action. So if the line ran through a house in such a manner that either side might afford a habitation, then dwelling in that house would not of itself prove in which town he acquired his domicil, though he must have acquired it in one or the other. In this sense we understand the instruction to the jury, and in this sense we think it was strictly correct. If they should find that the line so ran through the house as to leave a part capable, of itself, of constituting a habitation in Randolph, then dwelling in that house, though partly in North Bridgewater, did not necessarily prove a domicil in North Bridgewater. Under this instruction the jury found a verdict for the plaintiffs, and we think it is evi

dent from this verdict that they understood the instruction as we understand it. The jury find that one corner of the house, to the extent of two feet and one inch, was in Randolph, but that no habitable part of the house was in Randolph; not, as we think, no part capable of being used with the rest of the house, for the purpose of habitation, but no part capable, of itself, of constituting a habitation; from which they draw the proper inference that the habitation and domicil, and consequently the settlement, was in North Bridgewater. And if we look at the fact, specially found by the jury, we are satisfied that they draw the right conclusion, and could come to no other. If the line had divided the house more equally, we think, on the authorities, that if it could be ascertained where the occupant habitually slept, this would be a preponderating circumstance, and, in the absence of other proof, decisive. Here it is found that all the beds, the chimney, and fireplace were within the North Bridgewater side of the line, and that only a small portion of the house, and that not a side but a corner, was within the Randolph side, and that so small as to be obviously incapable of constituting a habitation by itself. We think, therefore, that the instruction was right, and the verdict conformable to the evidence."

In Chenery v. Waltham, the plaintiff requested the trial judge to instruct the jury" that if the true dividing line between the two towns passed through an integral portion of the dwellinghouse occupied by Phelps and his family, then he had a right to elect in which town he would be assessed on his personal property and become a citizen." This he refused to do, but did instruct them "that if the house was so divided by the line as to leave that portion of it in which the occu

pant mainly and substantially performed those acts and offices which characterized his home (such as sleeping, eating, sitting, and receiving visitors), in one town, then that the occupant would be a citizen of that town, and that no right of election would exist; and that if the house was so divided by the line as to render it impossible to determine in which town the occupant mainly and substantially performed the acts and offices before referred to, then the occupant would have a right of election in which town he would be a citizen; that his election would be binding on both towns; and that the jury, in passing on the question of fact, must take into consideration the uses of the different rooms in the house, and of the different parts of the several rooms." Upon verdict for the defendant the Supreme Court overruled the exception of the plaintiffs, saying: "The other ruling of the court was surely sufficiently favorable to the plaintiff. It might, perhaps, be difficult to maintain the entire accuracy of the ruling in regard to the right of a party to elect where he would be assessed, in the general and unqualified terms in which it is stated; but if there be any error it is in favor of the plaintiffs, and is one to which they cannot except."

3 Judkins v. Reed, 48 Me. 386, --a tax case in which it was decided that, when the dividing line of two districts passes through the dwelling-house of a person, his residence will be held to be in that town in which the most necessary and indispensable part of his house is situated, especially if the outbuildings and other conveniences are in that town.

Follweiler v. Lutz, 112 Pa. St. 107. This case was peculiar. The house, which was used as a tavern, lay upon the line of S. and L. counties; according to the testimony most favor