Poland, J.
The only importance of the fact whether William Annis the grandfather of the pauper was married to Nancy Woodward, is the effect which was produced by his having a lawful wife remaining in Peacham, after he was arrested and committed to the jail in Chelsea, upon the question of his residence, home, or domicil, during that time.
We regard it as now well settled that evidence of reputation and cohabitation is competent to prove a marriage, whenever the question arises in any civil action, except in actions for criminal conversation. The evidence introduced being legally admissible as tending to establish a marriage, and the court below having found the fact of a marriage from it, that fact must be allowed to have its proper effect upon the question of the husband’s domicil.
The turning question in the case is, whether the said William Annis acquired a settlement in the town of Peacham by residing in that town one full year, in the years 1816 and 1817. He went into that town to reside in the spring of 1816, married a wife there, became a housekeeper there, and so remained up to January, 1817, when he was arrested on a charge of larceny and, in default of furnishing bail for his appearance at the then next term of the court in Orange county, was committed to jail in Chelsea, where he remained until the June term 1817, when he was tried and convicted of the alleged larceny, and sent to the state prison for the term of seven years. After he was so committed to jail his wife returned to the house of her father in Peacham and there remained until her death in the summer of 1818. It is very clear that Annis, after he was so committed to jail in Chelsea, could not in any fair or legal sense be said to have any residence or domicil in that town, because his stay there was by force of legal constraint and compulsion, and not by reason of any will or choice of his own. In all such cases, even where the imprisonment is upon civil process for the non-payment of a debt (when such imprisonment was allowed) it was always held that the person imprisoned had no residence, but, however long such imprisonment might last, continued to be legally a transient person. This was carried so far in one case that when a debtor confined in jail for debt gave a jail bond, which entitled [113]*113him to the limits of the prison, and then hired a house within the limits and removed his family to it, and there lived with them for a continuous period of more than seven years, it was held that thereby he gained no settlement in the town, and that upon becoming chargeable he was properly treated as a transient person. Woodstock v. Hartland, 21 Vt. 563, Can it be fairly and legally said that Annis’ residence continued in the town of Peacham, after he was thus committed to jail, and that his absence was of that temporary character that did not change or put an end to his residence ? The year from the commencement of his residence in Peacham would expire at some time previous to the term of the court at which Annis was tried, and while he was detained in jail, merely because he could not. or would not, furnish sureties for his appearance. Whether he had at the end of that year gained a settlement in Peacham depended upon what had already transpired and could not be affected at all by the result of his trial afterwards, or on the consequences of his conviction. So far as his settlement in Peacham was concerned, it was all the same whether he was convicted and sent to the state prison, or whether he was acquitted and set at liberty at the ensuing June term. It is not in terms found in the report of the case from the county court, that during this period Annis intended to return to Peacham as his home, whenever he could regain his liberty. It is found, that he was at the time of his arrest living as a housekeeper with his family in Peacham, intending to continue a permanent residence there, and that but for his arrest he would have continued an actual residence there. When committed to jail he left his home, his family and his effects in Peacham. From this finding as to the previous intent and the circumstances and condition of his family, and the absence of any evidence or circumstance tending to show a change of intent as to residence, we think the only legitimate inference is that during this period, he intended when his term of imprisonment should be ended, by an acquittal or otherwise, to return to his home and family in Peacham. It is said however, that after he was committed to jail, his wife left the home he had provided and returned to her father’s, and that therefore his residence and home was then broken up and ended. But this fact does not appear to us to be [114]*114entitled to any particular weight in establishing that he did not intend to return to the town of Peacham to reside, and to live with his wife. It does not appear that her return to her father’s was intended by her as any abandonment of her husband, nor does it evince any intention on her part not to again live and cohabit with him if he returned. It is very probable that her return was. occasioned by necessity. It is not stated but that Annis owned the abode where he lived, but the history of the case makes it probable he did not; but still there is no statement or inference that he had not some right to reside in it, and to return to it, if he could, and chose to do so. If then, while Annis was thus in Chelsea jail, he was there merely as a transient person, and had a house and family in Peacham, to which he intended to return, why did not his residence constructively continue there up to the end of the year? It has been established by numberless decisions, that a man’s residence may continue in one town for almost any period of time, while he may in fact be absent for some temporary purpose of business or pleasure, or be detained by sickness or other cause. Upon what principle does this case differ from that class, and why is it different from what it would have been if Annis, instead of being committed to jail, had that same day broken his leg in Chelsea, and been detained thereby in that town, until the expiration of the year ? The plaintiff’s answer is, that he was confined in jail upon a criminal charge, and therefore, though all the usual elements of a constructive residence continued in Peacham, his legal residence there ceased. It is to be borne in mind, that until after the expiration of the year, it was not made legally certain that he had been guilty of any offence, and no consequences of a conviction, whatever they might be, had then attached. He was not in jail under any sentence or judgment, and he had as much the legal right, and the legal power, to leave his prison and return to his home, as a prisoner in jail for a debt. Pecuniary inability might prevent either from doing so. We are not satisfied that imprisonment upon a criminal accusation merely, in one town has not the effect to make a break in the residence of a man who has at the time a home and a family in another town, to which he intends to return when he regains his liberty. Sup[115]*115pose the law had then required, as now, a continuous residence of seven years to give a settlement, and Annis had been acquitted, or discharged without a trial, and returned to Peacham and remained till seven years expired from his first removal there, is it doubtful whether he would thereby gain a settlement. We think not. Several English cases have been cited as to the effect of an imprisonment in making a break in a settlement. But the English cases can have very little influence here, for their recent settlement act, 9 and 10 Vict. C. 66, sec.
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Poland, J.
The only importance of the fact whether William Annis the grandfather of the pauper was married to Nancy Woodward, is the effect which was produced by his having a lawful wife remaining in Peacham, after he was arrested and committed to the jail in Chelsea, upon the question of his residence, home, or domicil, during that time.
We regard it as now well settled that evidence of reputation and cohabitation is competent to prove a marriage, whenever the question arises in any civil action, except in actions for criminal conversation. The evidence introduced being legally admissible as tending to establish a marriage, and the court below having found the fact of a marriage from it, that fact must be allowed to have its proper effect upon the question of the husband’s domicil.
The turning question in the case is, whether the said William Annis acquired a settlement in the town of Peacham by residing in that town one full year, in the years 1816 and 1817. He went into that town to reside in the spring of 1816, married a wife there, became a housekeeper there, and so remained up to January, 1817, when he was arrested on a charge of larceny and, in default of furnishing bail for his appearance at the then next term of the court in Orange county, was committed to jail in Chelsea, where he remained until the June term 1817, when he was tried and convicted of the alleged larceny, and sent to the state prison for the term of seven years. After he was so committed to jail his wife returned to the house of her father in Peacham and there remained until her death in the summer of 1818. It is very clear that Annis, after he was so committed to jail in Chelsea, could not in any fair or legal sense be said to have any residence or domicil in that town, because his stay there was by force of legal constraint and compulsion, and not by reason of any will or choice of his own. In all such cases, even where the imprisonment is upon civil process for the non-payment of a debt (when such imprisonment was allowed) it was always held that the person imprisoned had no residence, but, however long such imprisonment might last, continued to be legally a transient person. This was carried so far in one case that when a debtor confined in jail for debt gave a jail bond, which entitled [113]*113him to the limits of the prison, and then hired a house within the limits and removed his family to it, and there lived with them for a continuous period of more than seven years, it was held that thereby he gained no settlement in the town, and that upon becoming chargeable he was properly treated as a transient person. Woodstock v. Hartland, 21 Vt. 563, Can it be fairly and legally said that Annis’ residence continued in the town of Peacham, after he was thus committed to jail, and that his absence was of that temporary character that did not change or put an end to his residence ? The year from the commencement of his residence in Peacham would expire at some time previous to the term of the court at which Annis was tried, and while he was detained in jail, merely because he could not. or would not, furnish sureties for his appearance. Whether he had at the end of that year gained a settlement in Peacham depended upon what had already transpired and could not be affected at all by the result of his trial afterwards, or on the consequences of his conviction. So far as his settlement in Peacham was concerned, it was all the same whether he was convicted and sent to the state prison, or whether he was acquitted and set at liberty at the ensuing June term. It is not in terms found in the report of the case from the county court, that during this period Annis intended to return to Peacham as his home, whenever he could regain his liberty. It is found, that he was at the time of his arrest living as a housekeeper with his family in Peacham, intending to continue a permanent residence there, and that but for his arrest he would have continued an actual residence there. When committed to jail he left his home, his family and his effects in Peacham. From this finding as to the previous intent and the circumstances and condition of his family, and the absence of any evidence or circumstance tending to show a change of intent as to residence, we think the only legitimate inference is that during this period, he intended when his term of imprisonment should be ended, by an acquittal or otherwise, to return to his home and family in Peacham. It is said however, that after he was committed to jail, his wife left the home he had provided and returned to her father’s, and that therefore his residence and home was then broken up and ended. But this fact does not appear to us to be [114]*114entitled to any particular weight in establishing that he did not intend to return to the town of Peacham to reside, and to live with his wife. It does not appear that her return to her father’s was intended by her as any abandonment of her husband, nor does it evince any intention on her part not to again live and cohabit with him if he returned. It is very probable that her return was. occasioned by necessity. It is not stated but that Annis owned the abode where he lived, but the history of the case makes it probable he did not; but still there is no statement or inference that he had not some right to reside in it, and to return to it, if he could, and chose to do so. If then, while Annis was thus in Chelsea jail, he was there merely as a transient person, and had a house and family in Peacham, to which he intended to return, why did not his residence constructively continue there up to the end of the year? It has been established by numberless decisions, that a man’s residence may continue in one town for almost any period of time, while he may in fact be absent for some temporary purpose of business or pleasure, or be detained by sickness or other cause. Upon what principle does this case differ from that class, and why is it different from what it would have been if Annis, instead of being committed to jail, had that same day broken his leg in Chelsea, and been detained thereby in that town, until the expiration of the year ? The plaintiff’s answer is, that he was confined in jail upon a criminal charge, and therefore, though all the usual elements of a constructive residence continued in Peacham, his legal residence there ceased. It is to be borne in mind, that until after the expiration of the year, it was not made legally certain that he had been guilty of any offence, and no consequences of a conviction, whatever they might be, had then attached. He was not in jail under any sentence or judgment, and he had as much the legal right, and the legal power, to leave his prison and return to his home, as a prisoner in jail for a debt. Pecuniary inability might prevent either from doing so. We are not satisfied that imprisonment upon a criminal accusation merely, in one town has not the effect to make a break in the residence of a man who has at the time a home and a family in another town, to which he intends to return when he regains his liberty. Sup[115]*115pose the law had then required, as now, a continuous residence of seven years to give a settlement, and Annis had been acquitted, or discharged without a trial, and returned to Peacham and remained till seven years expired from his first removal there, is it doubtful whether he would thereby gain a settlement. We think not. Several English cases have been cited as to the effect of an imprisonment in making a break in a settlement. But the English cases can have very little influence here, for their recent settlement act, 9 and 10 Vict. C. 66, sec. 1, expressly provides that “ the time during which such person shall be a prisoner in a prison, &c., shall be for all purposes excluded from the computation of time, &c.,” which by that act is five years, and it has been held that this language includes all lawful imprisonments in any prison,without distinction, whether for felony, misdemeanor, or debts. Regina v. Hartfield, 9 Law and Eq., 309.
The case of Reading v. Westport, 19 Conn. 561, is also relied on by the plaintiff, in which case it was decided that an imprisonment in the state prison for two years under a conviction for bigamy did interrupt a residence in a town where the man had formerly lived, and to which he returned after serving out his sentence. It deserves to be mentioned however, that it does not appear from that case that the pauper had any home or family in ■such town, or had any intention to return to it during the term of his imprisonment. But the decision is not placed at all on the want of such facts, but wholly on the effect of the absence under the imprisonment.
It does not become necessary in the present case to determine the effect of an imprisonment in the state prison under a conviction for a crime, and a sentence of imprisonment for a term of years. There are manifest grounds to distinguish such a case from the present. In such case it is wholly beyond the power of such person to return to his home if he have such intention, and perhaps it would not be improper to say that he has voluntarily put it out of his power.
Again there may be legal force in the suggestion made in one of the English cases cited, that a conviction for a felony and sentence of transportation, made the convict civiliter mortuus, and that thereby he forfeited all his civil rights, and was not regarded [116]*116as having a civil existence during the continuance of such sentence. We are not prepared to say that such might not. here be. the legal consequence of a conviction for a felony and imprisonment in the state prison under sentence therefor.
But in our judgment the imprisonment of Annis, before his trial, did not prevent the continuation of his constructive residence in Peacham where his family and home were, and that he gained a settlement in that town, and thereby lost his settlement in the town of Vershire.
The judgment is therefore affirmed.