Lyman v. Fiske

delivered the opinion of the Court. The liability of the plaintiff to be taxed in the town of Waltham, depends wholly upon the question, whether he was an inhabitant of that town, at the time the taxes were levied, in May, 1832.

In some' respects, perhaps, there is a distinction between habitancy and domicil, as pointed out and explained in the case of Harvard College v. Gore, 5 Pick. 377, the former being held to include citizenship and municipal relations. But this distinction is believed to be of no importance in the present case ; because all the facts and circumstances, which would tend to fix the domicil, would alike tend to establish the habitancy.

It is difficult to give an exact definition of habitancy. In general terms, one may be designated as an inhabitant of that place, which constitutes the principal seat of his residence, of his business, pursuits, connexions, attachments, and of his political and municipal relations. It is manifest, therefore, that it embraces the fact of residence at a place, with the intent to regard it and make it his home. The act and intent must concur and the intent may be inferred from declarations and conduct. It is often a question of great difculty, depending upon minute and complicated circumstances, leaving the question in so much doubt, that a slight circumstance may turn the balance. In such a case, the mere declaration of the party, made in good faith, of his election to make the one place rather than the other, his home, would be sufficient to turn the scale. But it is a question of fact *235lor the jury, to be determined from all the circumstances of the case. So it was left in the case of Makepeace v. Lee, cited by the Chief Justice, in 5 Pick. 378. The election of a man to pay taxes in one town rather than another, may be a good motive and a justifiable reason for changing his habitancy ; and if such election is followed up by corresponding acts, by which he ceases to be an inhabitant of the one, and becomes an inhabitant of the other, his object may be legally accomplished. But such an election to be taxed in one town rather than another, is only one circumstance, bearing upon the question of actual habitancy, and to be taken in connexion with the other circumstances, to determine the principal fact. But the Court are of opinion, that the effect of the instruction of the court on the trial of this cause, was to withdraw all the evidence from the consideration of the jury, except the election of the plaintiff to be taxed in Boston, that this direction was not correct, and that the question whether the plaintiff was an inhabitant of Waltham, should have been left to the jury, upon all the facts and circumstances of the case.

New trial granted.