dissenting. The court does not find as matter of fact that the plaintiff did not, in July, 1866, select Hudson, in this state, as bis residence, and intend from that time to reside there. He swears positively that he did. Of his competency as a witness upon this point there is no doubt; and although a party might be so contradicted by circumstantial evidence as to warrant a court in disbelieving his statement in regard, to his intention, yet there are no such circumstances presented here. It is true that he went away immediately. But his absence was of no different character or extent than was natural in view of his business; and Ms subsequent conduct in perfecting his arrangements for residence here, and entering upon investment and improvement, fully confirm his direct evidence as to his intent, and show that his absence, after first selecting his new residence, was temporary, and furnishes no ground for assuming his intention to have been at all different from what he states. This being so, I cannot assent to the conclusion of law at which the court has arrived. The legal rule of their decision, as I understand it, is, that although a man may actually be present in this state, and may select a place as a residence, and intend from that time to reside there, yet if he goes away upon business, although intending to return, he cannot be held to be a resident of this state, unless he leaves behind him here such external evidences and indications of residence as would at all times enable the court to find the fact independent of his testimony. I do not think there is any other case that establishes such a rule. On the contrary, the authorities seem to be uniform to the effect that personal presence in a place, coupled with an actual intent to reside there from that time, constitutes .such place a residence. And no mere temporary absence from that residence, so long as the party really regards and considers it his residence, deprives it of that character. In Hulett's Adm'rs v. Hulett, 37 Vt. 581, this subject was very fully considered. The court says: “In *611determining the character of a person’s residence in a particular place, and with what intent such residence began, its duration is a most important element, and has always been so considered in all the cases upon this subject. One may take up his residence in a place, and have a fixed residence or domicil while he remains, though it be but for a very short period of time, even for a single day. On the other hand, one may remain for a long time in a place without having it become his domicil, and be all the while a mere temporary sojourner. But where one’s stay in a place is short, and then he returns to his former home, it affords some presumption that he went there for a temporary purpose, with no intent to remain; while, if his stay or residence is protracted and long continued, it furnishes a corresponding presumption that he designed to remain from the beginning. Other facts and evidence may overcome the presumption in either case, and show that the short stay was of a legally permanent character, and that the longer one was but a mere absence from home, working no legal change of residence.”
In this case the subsequent facts are entirely satisfactory to give to the plaintiff’s short stay, in July, the “legally permanent character” of a residence, and to show that his absence, immediately succeeding that time, was temporary, and worked no change of such residence.
In Massachusetts, under a statute which required every person to be taxed in the town where he was an inhabitant on the first of May, it was held that a party, who on that day was out of the state journeying to a new residence- in Pennsylvania, to which state he had not yet arrived, was not taxable, being no longer an inhabitant. Golton v. Inhabitants of Longmeadow, 12 Allen, 598.
In Bulkley v. Inhabitants of Williamstown, 3 Gray, 493, the court states the rule as follows: “The general rule, and for practical purposes a fixed rule, is, that a man must have a habitation somewhere. He can have *612but one; and, therefore, in order to lose one, be must acquire another. This is the test, the practical test, and it is hardly necessary to say how important it is to have a practical rule and a general rule. One of the fixed rules on the subject is this: that a purpose to change, unaccompanied by actual removal or change of residence, does not constitute a. change of domicil. The fact and the intent must concur. He must remove without the intention of going back. The question here is, whether he can abandon one without acquiring another, and we think it has always been held that he cannot. If he goes into another state, and returns for his family, his personal pores ence there, concurring with the intent, may fix his domicil there. But if he has not previously removed to the other state, he has not acquired a domicil there, or lost one here.”
Putting the doctrine of these two cases together, it would follow that in the first one the court must have regarded the plaintiff as a resident of Pennsylvania on the first of May, although he had not yet arrived there at all, upon the ground that he had abandoned his old residence with the intention of residing there. In the latter case, they expressly say that the personal presence of a man in another state, concurring with the intention to reside there, may fix his domicil there, although he returned for his family.
But our court says, that a man’s personal presence here, concurring with an intention to reside here, does not fix his residence here, unless he establishes such external indications of that intention as would, from the inception of his residence, be continuously sufficient to establish the fact to the satisfaction of a court, independently of his own testimony. I cannot think such a rule would be held in any other action than one.for a divorce; and I'do not feel at liberty, because the action is of that character, to introduce any new elements into the law of residence.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.