Vermont Bar Journal, Vol. 40, No. 2 Spring 2014, Vol. 40, No. 1 | Page 12

Ruminations: The Legal History of Jamaica, Vermont

tlement decisions.
No doubt the question of residence,
of domicil, is very much controlled by
the status of the mind of the dweller, or inhabitant. But domicil is not a
thing resting wholly in intention. If it
were so, most Americans would be
without any fixed domicil. Many of us
have, perhaps, high hopes of a happier home, and comfort and plenty in
some far off region, where all the necessaries of life grow spontaneously, almost, and where neither idleness, vice
or dissipation, will cheat us of comfort
and plenty. But all this effects no present change of domicil;—that is still the
home, whether the removal is intended in twenty-nine days, or as many
weeks, or years. In either case, it may
never come.29
How long Clayton was in Londonderry was
not important, according to Judge Redfield.
We all understand, that such persons
are away from home, that they expect
soon to return, or at some time. But in
the present case it would seem the pauper never had resided upon the land,
for which he had bargained; he had permanently and voluntarily abandoned his
former home, without any animus revertendi. But, so far as the mind was concerned, he was looking forward, instead
of back; his home in Jamaica, during this
interval, was not a remembrance, but a
hope, a desire. The mind may prolong
a residence; but it will hardly anticipate
one, as is claimed here.30
Townshend would pay Jamaica for Clayton’s care.
Wilmington overseers obtained an order
of removal for Mary Emily Davidson to Jamaica, where she had settled. In an 1870
appeal, Jamaica argued she was married to
a Wilmington man, or “under coverture,”
at the time the order was granted by two
county justices of the peace.31 Wilmington
countered that George, her husband, had
abandoned her and fled the state for parts
unknown. The law at the time provided, “a
married woman shall always have the settlement of her husband if he have any within this state; otherwise her own at the time
of marriage, if she had any, shall not be lost
or suspended by the marriage.” Mary was
returned to Jamaica, as she was its pauper.

Road Cases
Other than paupers, towns were most
likely to end up in lawsuits in the nineteenth
century because of roads and bridges. Jamaica fought with its neighbors over a

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THE VERMONT BAR JOURNAL • SPRING 2013

bridge and roads for more than forty years.
A defective bridge caused plaintiffs’
stage coach and horses to fall through, resulting in the death of a chestnut mare, for
which the owners of the stage line sought
recovery from the town.32 In its defense, Jamaica argued that the town had no notice
of the defect, and so no duty to repair it.
The town also claimed that plaintiffs were
liable for the loss of the mare, because they
kept the horse in service despite the fact
that it was ailing before coming to Jamaica, having driven her seventeen miles from
Townshend to Brattleboro and back, over
two days, rather than allowing the animal
time to recover from its illness. Plaintiffs responded that “it was thought prudent to
exercise her to restore her appetite.” The
case was entitled Bardwell and Huntington v. Jamaica (1843). The jury awarded
plaintiffs their claimed damages, and the
town appealed. The Supreme Court affirmed the decision, holding Jamaica liable
even if the town had no notice of any defect, as no statute required it.33
The most often-quoted case involving
Jamaica was Hyde v. Jamaica (1855). An
accident occurred on the road from North
Wardsboro to West Townshend, in Jamaica, in April of 1850. This is now partly Route
100 and Route 30, major state roads, but in
1850 it was only a town highway. The road
was out of repair, on account of the construction of the railroad in 1849 and 1851,
as was the bridge over the Branch. Several times since 1831 when the bridge had
been lost or repaired, travelers had used
the historic fordway above the bridge to
cross the stream. Snow felled the bridge
in March of 1850, and travelers began using the fordway. The next month Dr. Dana
Hyde drowned, after losing control of his
buggy over the fordway.34
The doctor’s heirs sued to recover damages for his death. The trial judge rendered
judgment for the heirs at $2,000, and Jamaica appealed. Reversing the judgment,
the Supreme Court, in the voice of Judge
Milo Bennett, held that the judgment below should be reversed, on the grounds
that the fordway was not part of the town
highway.
This fordway had not, I think, become a
part of the highwa H