The opinion of the Court was afterwards drawn up by
Tenney J.— This action is brought to recover remuneration for expenses incurred in the support of the wife and children of one Butler, who is alleged to have his settlement in Greene.
The verdict was for the plaintiffs, on the ground, that Butler had acquired a settlement in Greene by a continued residence therein for five years, commencing in February or March, 1830, and ending March, 1835. Evidence was adduced by the defendants tending to show an interruption of this supposed continued residence from the last of May or first of June to the first of July, 1831, and evidence of a counter character, particularly from the pauper himself, was introduced by the plaintiffs. It was not in controversy, that the pauper was absent from Greene at the time referred to, but whether with an intention of abandoning that town as his home, was the point in issue.
Domicil depends on residence and intention. Both are necessary to constitute it; and when it is once fixed, it is to continue, until a serious and deliberate determination to reside elsewhere, is actually carried into effect. Absences of longer or shorter duration from one’s usual home, often occur, and the domicil remains unchanged.
Residence and change of place are facts which are obvious, and cannot be mistaken; but in fixing a domicil, they are un*362important, unless accompanied by the intention of remaining, or of removing not to return, which are more uncertain, and often to be found in a variety of circumstances having a nearer or more remote bearing upon the question.
An individual under excitement, and the dominion of angry feelings may express a full determination to leave his residence and the town in which it is situated, and a temporary absence may thereupon follow, and still his domicil may not be changed thereby. Those knowing his temper and habits may be thoroughly satisfied, that his intention was not such as he declared. Early attachments to a place of residence, connexions of blood or affinity, ties growing out of the acquaintances formed in youth, often bind one to a particular spot, and induce him there to pass his moments of leisure, especially when he has no family located in another place. And these are circumstances material in determining the intention of the individual thus influenced, when he may move from one place to another. The character of his home, his mode of life, his habits and his disposition, may be important aids in coming to a result on the question of intention. The removal accompanied with the declaration of a resolution to abandon his residence, of a person possessing known decision of character, firmness of purpose, not subject to sudden excitement, generally believed to carry into effect his expressed intentions, would and ought to make an impression on the mind different from similar declarations and acts of one of an opposite character. We think the instructions to the jury were correct.
It is insisted that the testimony of Dillingham, of the offer of the pauper to hire with him in May or June, 1831, in Turner, was improperly excluded. It is settled, that when one is doing a certain act, declarations of his motives and intentions at the time are admissible. It is part of the res gestae. At the time the individual is actually leaving the place where he has resided, when he cannot foresee the consequences of a declaration of his intention, and there is no apparent inducement to speak falsely, such declarations are a part of his acts, and are important evidence. But when he is doing no act, *363in itself indicative of a change of place, for one purpose or another, we are not aware that the verbal expression of his intention can be received. The cases show that such testimony is proper only as accompanying the act, which act is material to the issue, and without the act it is not evidence.
We are unable to see how this evidence could have aided the jury, if allowed to be laid before them. It seems to us irrelevant. Tho Court are to judge of the relevancy, and the jury of the effect of evidence. A person may be absent weeks, months and years and his domicil remain unaffected, and no tie which binds him to his home in the least degree weakened. That this pauper was absent between May and July, 1831, was not disputed; but the question was, as to the intention which he entertained in his absence, on the subject of leaving his former home; and his offer to hire in Turner we think would not tend to settle that question.
Neither do we see that the testimony offered and rejected conflicts at all with the statement made by the pauper. From the report of the evidence he said nothing of that offer, and on that ground the ruling is not subject to objection.
Judgment on the verdict.