1. By the Rev. Sts. c. 45, § 3, it is provided that “ every legal settlement shall continue till it shall be lost or defeated by acquiring a new one within this state ; and upon acquiring such new settlement all former settlements shall be defeated and lost.” The defendants in the present case, admitting that the pauper had a settlement through her husband originally in the town of Wilbraham, undertook to prove that he had acquired a new settlement in Chicopee in the twelfth mode prescribed by the Rev. Sts. c. 45, § 1, by a continuous residence in that town for ten years, and the payment of all taxes assessed on his poll or estate for five years within that time. This defence was in the nature of an avoidance of the case on which the plaintiffs relied to maintain their action. The defendants did not seek to meet and disprove the proposition of fact set up by the plaintiffs. The original settlement of the pauper’s husband in Wilbraham was not denied; but the defendants sought to avoid its legal effect by alleging and proving the new and distinct fact, that the pauper had gained a new settlement in Chicopee, and thereby the original settlement in Wilbraham was “ lost or defeated.” In the strict and technical sense therefore, the burden of proof was on the defendants to establish satisfactorily that the husband of the pauper had acquired a new settlement in the manner alleged by them. Attleborough v. Middleborough, 10 Pick. 378. Oakham v. Button, 13 Met. 192. They had assumed the affirmative of this issue, and the duty of maintaining it by evidence rested on them throughout the trial.
2. But the instructions of the court, as to the proof necessary to show a continuous residence in the town of Chicopee within the meaning of the statute, prescribed too stringent a rule for the practical guidance of the jury in determining the question before them. Evidence of a temporary absence for a brief period, followed by a return to Chicopee, would not necessarily prove a change of domicil, or break the continuity of residence, so as to prevent the acquisition of a settlement there, although there was no proof of a fixed, affirmative and definite purpose to return, at the time the husband of the pauper left the town, *590or during his absence therefrom. A person cannot be said to lose his domicil or residence by leaving it with an uncertain, indefinite, half formed purpose to take up his residence elsewhere. It would be more correct to say, that he would not lose his residence until he had gone to a new one, with a fixed purpose to remain there and not to return to his former home. Until his purpose to remain had become fixed, he could not be said to have abandoned his former residence. Bulkley v. Williamstown, 3 Gray, 493. It was said in an early case, that the domicil of a party may be considered as remaining in a place when he returns to it after a temporary absence, too short to enable him to gain a residence elsewhere; because, in such case, it may be reasonably supposed that he absented himself with the intention of returning. Chelsea v. Malden, 4 Mass. 134. The error in the instructions in this case consisted in assuming that the mere absence of the party from the town in the year 1834 broke the continuity of his residence, unless the defendants could show affirmatively that he then had a fixed and definite purpose to return at all events to Chicopee as his home. Such temporary absence was only one fact bearing on the question of domicil or residence, and the jury would not be warranted in drawing from it the inference that the party thereby changed his home. The proper mode would have been, to have laid down the rule of law concerning the elements necessary to constitute a change of residence or domicil, and left it to the jury to determine, on all the facts in the case, whether such change had been made or not. Exceptions sustained.