This case depends upon the principles of law stated in the foregoing case of Otis v. Boston; and we have only to inquire, as before, into the facts which tend to determine whether Mr. Cabot was an inhabitant of Boston on the 1st May, 1850.
In looking at the evidence, it seems to us clear that, for more than twenty years prior to 1850, Mr. Cabot was an inhabitant of Brookline. All the indicia concur in this conclusion. He passed at least half of the year there; he claimed, and was allowed, political and municipal privileges there; it was manifestly his intent and purpose to fix his abode there and we think he was rightfully taxed in that town. Bid he *54change it in 1850? We have often had occasion to say indeed we said it in the preceding case, that bodily presence alone, on the 1st of May, though it is a circumstance, is not decisive.
Had the circumstances been reversed, — had Mr. Cabot been taxed in Brookline, and he had resisted the payment of the tax on the ground that he had changed his domicil from Brookline to'Boston, and so was not taxable in Brook-line,— it could not have been an available plea. The preceding case, we think, would be an authority to show that he had not. He manifested, by every act and declaration, his intent to continue his domicil in Brookline, and was only prevented from actually carrying it into effect by removal, by overpowering necessity. He had removed a portion of his furniture; he had engaged a person to take charge of his house, during his absence in summer; he made a formal declaration in writing, by a letter to the assessors of Brook-line, that he did not intend to change his domicil; and he executed his purpose of removal as soon as the impediment was removed.
The court are therefore of opinion that he was not an inhabitant of Boston on the 1st May, 1850, within the meaning of the statute, and that he is entitled to recover back the tax then assessed on him, and paid under protest.
Judgment for the plaintiff.