Inhab'ts of Richmond v. Inhab'ts of Thomaston , 38 Me. 232 ( 1854 )

Rice, J.

— One material question in issue between the parties was, whether the paupers removed from Thomaston to Camden in the winter, or spring of 1847. To prove such removal, the defendants proposed to introduce certain declarations of Lombard, made at the time he was about departing from Thomaston, on a voyage to sea, in the fall of' 1846.

Declarations are often admitted in evidence, for the purpose of explaining the nature of a transaction which is then the subject oí inquiry. Where it is necessary to inquire into a particular act, or the intention with which a person performs an act, proof of what the person' said at the time of doing it, is .admissible in evidence for the purpose of showing its true character. 1 Phil. Ev. 231.

The declarations of a trader, at the time of his departure from his house, or the realm, or of his absenting himself, are properly admissible in evidence as showing his intention, when the question is, whether he has committed an act of bankruptcy. 2 Phil. Ev. 329.

For the purpose of proving an assignment to have been made with the design of defrauding creditors, the declarations of the party, at the time of his signing and executing the instrument, are admissible in evidence as a part of the transaction, against the plaintiff claiming under him. 2 Phil. Bv. 385.

The principal points of .attention are, whether the circumstances and declarations offered in proof, were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character. 1 Greenl. Ev. § 108.

Declarations to become part of the res gesta, must have been made at the time of the act done, which they are supposed to characterize; and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one transaction. Per Hosmer, C. J., in Enos v. Patten, 3 Conn. 250. And the act performed, which may be thus explained, must be connected with, and constitute a part of the subject matter to be determined.

Thus, in the case of Thorndike v. Boston, 1 Met. 242, the question to be determined was, where was the plaintiff’s place of residence. Upon that point his declarations made about the time of his departure from Boston, and while he was making preparations to go to Edinburg, as to his intentions, were held admissible.

So too, in the case of Gorham v. Canton, 5 Maine, 266, the declarations of the pauper, when setting out on a journey from one town to the other, were held admissible, to show the intention of the pauper.

The -paupers in the case at bar, were married, but in indigent circumstances, having no habitation of their own. The husband was a common mariner; the wife a servant, living out in families, as a domestic. In the fall of 1846, the husband shipped as a seaman, on a voyage to New Orleans. His wife was then at service in a family in Thomas-ton. About the time of his departure on this voyage, he made declarations as to his future hopes and intentions, as to business and residence. Those declarations were in part admitted, and excluded in part, at the trial. Exceptions are taken that all were not admitted.

The fact sought to be proved was, that the paupers moved from Thomaston to Camden. The primary question, then is, was the pauper moving, or doing any act with reference to moving from Thomaston, at the time he made the declarations testified to by the witness Wormwell ? Most clearly not. He was then in the pursuit of his ordinary business, just starting on a voyage to sea, on which he was to be employed for several months. He was not then in the act of changing his residence; was not on his- way to Camden, nor to any other place in search of a residence or home. He was doing no act in connection with a change of residence. His whole conversation had reference to his future expectations and intentions, after he should have completed the voyage upon which he was then entering.

Such being the situation of the pauper at the time of making the declarations testified to, if the Judge erred it was in admitting any part of the conversation.

It is objected that certain facts stated by the witness Wormwell, were excluded improperly. We think it is apparent that the statements by the witness, that Lombard had “made arrangements for his wife to go to Camden,’' &c. were a mere narrative of what Lombard had communicated to him, and not facts within the personal knowledge of the witness, and were therefore properly excluded.

The payment of the bill of Doct. Libby, by the town, extinguished any legal interest which he had in the event of the suit, and he was, after such payment, properly admitted.

Exceptions overruled.

Shepley, C. J., and Appleton and Cutting, J. J., concured.