1853. STAPLETON. residence conveys the idea of home. He adds: “The The QUEEN fact of sleeping at a place, indeed, by no means constitutes a residence-though, on the other hand, it may not be necessary for the purpose of constituting a residence in any place to sleep there at all. If a man's family are living in a borough, and he is absent for six months, but with the intention of returning, he will be still considered as residing there." [Erle J. That was not intended as a general definition of residence. I doubt if you will find such a definition anywhere; but I am sure you will not find it given by me; for it has been a desideratum to me for many years; and I never could find or frame a definition satisfactory to my mind]. Under any circumstances, the intention to return must be nearly decisive; Regina v. Tacolnestone (a). Much importance was also attributed to the intention to return in Regina v. Halifax (b). [Lord Campbell C. J. An order of removal breaks the residence because it takes away the right to return; in Regina v. Tacolnestone (a) there was the intention and the right to return. In Regina v. Halifax (b) there was the intention without the right. In the present case the pauper could not return during his hiring without a breach of contract.] Pashley (with whom was A. M. Skinner), contrà. The facts here shew that the pauper had no intention to return to Stapleton, unless he was turned away. The desire to return at some indefinite period cannot make a man resident. The argument for the other side would be as good at the end of fifty years' absence as at the end of an absence of four years and four months. (He was then stopped by the Court.) (a) 12 Q. B. 157. (b) 12 Q. B. 111. Lord CAMPBELL C. J. I am of opinion that the pauper was not irremoveable. I do not think that we are precluded from entering into the question by any finding of the Sessions. They have found the facts, and on those facts have come to the conclusion that Robert Fletcher had resided in Stapleton for the five years: but it is a conclusion of law; and we are to say whether on those facts he had, within the meaning of this Act, resided there for five years next before the application for the warrant, which was within five years of his return from Clifton. Then I should be glad to be able to lay down a general definition of residence, applicable to all cases: but I hazard none. I have never heard one of general application. I cannot adopt those suggested by the counsel for the respondents. They liken residence to domicile, and say that the domicile of Fletcher was in Stapleton whilst he was bodily in Clifton. But residence and domicile are not the same thing. A man may be resident in one country and domiciled in another: that is fixed principle of international law recognized in all countries. Neither can the intention to return be decisive upon the question. See what absurdities it would lead to, if we were to say that an intention to return at any remote period rendered a permanent absence not a change of residence. We may suppose the case of a man hired to go to Australia, there to serve as a shepherd for a long term of years, and who does, according to his contract, go there and live there, but bonâ fide means to return to his former habitation in this country when the term for which he is hired shall have expired, say twelve years hence. Could it be said that during these twelve years he was resident at that former habiE. & B. VOL. I. 3 E 1853. The QUEEN V. STAPLETON. 1853. The QUEEN V. STAPLETON. tation, when in fact he was all the time on the other side of the globe? I can go no further in giving a definition than is necessary for the decision of this case. I think, when a man is absent for a temporary purpose, with an intention to return when that temporary purpose is served, as, for instance, when he is absent for a week's work in another parish, meaning to come back at the end of the week, it is no break in his residence. The phrase "temporary purpose" is not very definite; still I think it may in each case be known whether the purpose was temporary or not. Here the pauper was hired elsewhere (it is not stated for what period); and he did not intend to return when a temporary purpose was served, but to remain so long as his engagement continued. It is found in terms that he resided in Clifton, and properly so found; for he could not have left it without a breach of contract. And I beg that it may be understood that I attach great weight to the fact that his duty, in conformity with his hiring, required him to remain in Clifton, so that, whilst the hiring continued, he could not return to Stapleton without a breach of contract. The word "residence" in one statute may have a different meaning from what it bears under another. On the facts of this case, more especially the contract which made it not lawful for Fletcher to return, and the intention not to return so long as he could continue in his situation, I think that he was not resident in Stapleton, within the meaning of the word as used in stat. 9 & 10 Vict. c. 66. s. 1. ERLE J. (a). We are called upon to say what constitutes a break in the five years' residence which would (a) Wightman J. was absent. render a pauper irremoveable. The word residence has idea with reference to which the word was used was the But I CROMPTON J. It is clear that the pauper did not personally reside in Stapleton during the period when he dwelt at Clifton. The question therefore comes to be, whether, in construction of law, he resided there. The Sessions have in different parts of the case found that he was residing in both parishes at the same time; and he had in fact two dwelling places, one in each parish. Whenever such is the case, I think 1853. V. the question will always be, Which of the two dwelling The QUEEN places is the permanent residence? I do not think that STAPLETON. any more definite guide can be given than by the use of the words permanent and temporary. An absence for a mere temporary purpose with an intention to return will be no break in the residence. But an intention to return. at a remote period, after a permanent absence, is not sufficient to prevent the absence from being a break. When the animus revertendi merely means that, though the absent person has what amounts to a residence elsewhere, it is his intention to return when that residence is at an end, I think that the animus revertendi cannot be said to make his absence temporary and not permanent. Order of sessions quashed. Saturday, April 23d. Mandamus to a line, autho- time limited The QUEEN against The GREAT WESTERN RAIL- Ex parte FISHER. MANDAMUS. The writ recited the provisions of "The Wilts, Somerset and Weymouth Railway Act, 1845" (8 & 9 Vict. c. liii.) (a), of “The Wilts, Somerset and for the exercise of the compulsory powers for acquiring had expired. The writ contained a suggestion that the defendants had given notices, and made contracts, by virtue of which they were either actually in possession of, or entitled to acquire the fee simple in possession of, all the lands required for the purpose of constructing" the line. Return: That the defendants were not nor are "either actually in possession, or entitled to acquire the fee simple or possession, of all the land required for the purpose of constructing" the line. Held: that the return was bad in substance, as, consistently with its truth, the defendants might have it in their power to purchase the part of which they were not possessed: and therefore that the return did not shew inability. (a) Local and personal, public. Royal Assent 30 June 1845. |