After advisement, the opinion of the Court was drawn up by
Weston C. J.One point taken is, that the jury not being agreed that the pauper had a residence in Wilton, on the 21st of March, 1821, without which the defence necessarily fails, the verdict for the plaintiffs is justified, whatever may have been the legal character of the instructions of the Judge. We do not so under*481stand the law. If a plaintiff lias made out a prima facie case, and the jury find, that the matter set up in defence has not been proved, it is a verdict for the plaintiff. But if they are not agreed, whether the defence is proved or not, the case is ■ not disposed of. It remains therefore to bo determined, whether the instructions of the Judge are warranted by law.
It appears, that when the father of the pauper, in 1818, removed from Falmouth to Wilton, the pauper accompanied him, aud established liis domicil in the latter town. Subsequently he removed with bis family to Vermont, where it is to be understood he established a new domicil. But this he soon after abandoned, and returned to Wilton. If ho did so, with a view to take up his residence-for an indefinite period, he might acquire in that town a new home, although his rights there were less strong than the instructions required. If he and his family were received as inmates by his father, so long as it might prove convenient and agreeable to the latter, or until the son could be otherwise accommodated, his home would be at his father’s, while that arrangement continued, although the father had a right to require his removal from his residence at pleasure, with which the right of the pauper subsequently to abide there, is necessarily inconsistent. Nor was it essential, that the pauper should have the power to exclude all others, who might presume to resort to the same residence, without right. That would be an invasion of the rights of the father.
We are not aware, that such a control over an adopted residence is essential to the establishment of a domicil. It is not unusual for persons, with or without families, removing into a town, to be received at board, as the inmates of other families, and there to remain for years, although their right to do so, depends upon the pleasure of the owner or occupant of the house, where they are thus received. And yet in such, cases, if they have abandoned their former homes, with the intention to abide for an indefinite period in the town, to which they have removed, we doubt not they there acquire a new domicil, aud that the place where they lodge is for the time being their home, however precarious may be the tenure, by which they hold it. Nor does such domicil at all depend, upon the length of time, in which it is in fact continued. Inducements may arise for frequent changes, which may be yield*482ed to by persons oí a certain temper and habits ; and yet such persons may have a domicil, although it may not be so easily susceptible of proof. Greene v. Windham, 13 Maine R. 225.
In our judgment, therefore, if the pauper had abandoned his domicil in Vermont, and had removed with his family to Wilton, with an intention there to abide for .an indefinite period, and was there in fact abiding, with such intention, on the twenty-first of March, 1821, his home was there, although his right to continue in the house depended on the will of the owner.
Exceptions sustained.