Inhab. of Baring v. Inhab. of Calais , 11 Me. 463 ( 1834 )

Mellen C. J.

delivered the opinion of the Court.

For reasons best known to the parties, or to their counsel, neither party was disposed to call the pauper upon the stand as a witness, though he was present in court during the trial. The counsel for Calais, offered to give in evidence certain declarations made by him at different times and on different occasions, within the period of five years, during which it was alleged by the plaintiffs he had resided and had his home in Calais. On objection being made to the admission of proof of these declarations, they were excluded, as not falling within the decisions in similar cases; because, in those cases where they had been admitted, the pamper or other person whose declarations had been admitted, was dead. The question before us is, whether the decease in the one case, or the Ufe in the other, of the pauper, has any legal influence in the decision of the question respecting the competency of such declarations as evidence. The counsel for the defendants has contended. that the pauper has an interest in obtaining a settlement in Calais, and that the declarations he made were against his intert est, and so on that ground were admissible ; and he cited Hatch v. Dennis, 1 Fairf. 244.

The answer to this is that, the pauper certainly has no pecu? niary interest, whatever his wishes may be. He is clearly an adr missible witness, and either party may call him. In one view of the subject, his declarations are not so good as his testimony; the declarations were made by him when he was not on oath, and so were not the best evidence in the power of the party to produce. They are not like the declarations of the assignee of a bond in an action upon the bond, or of a deputy sheriff for whose misfeasance or neglect an action is brought against the sheriff: for in both those cases the person’s declarations are against his interest; and neither of them can he admitted as a witness. If the declarations of the pauper in the case under consideration are legally admissible, it must be on some other principle : that is, because they are to he regarded as facts and parts of the res gestee. If they are so to be regarded, then the person who testifies that he heard the declarations made by the pauper, is as good a witness to prove them so made, as the pauper, for reasons which will appear on further examination of the subject. The question of domicil depends upon residence and intention. The former is capable of clear and certain proof; the latter is to be known or inferred from the language or conduct of the person whose domi-cil we are endeavoring to ascertain. In most cases the question is of easy solution, and indeed admits of no doubt; as where he is the head of a family residing with them as a stated house keeper ; but when a man or a woman is an insulated being, without any family or settled place of abode, and beside, is destitute of property, except clothing, the question of domicil becomes one of no little difficulty. The case before us íurnishes a distinct illustration of the truth of the above remarks; for in such a case only, would such expressions as those of the pauper mentioned in the report of the Judge, he deemed of any importance. Ifl. the case of Gorham v. Canton, cited in the argument, the pauper was of this equivocal character, and the declarations made by him while residing in Canton, he being dead at the time of trial, .were admitted as unguarded disclosures of his intentions, and for .that reason, forming in part the character of his residence in that ,-town. Starlcie, vol. -1, page 48, observes that, “ when the nature ,of a particular fact is questioned, a contemporary declaration by the party who does the act, is evidence to explain it. Where, for instance, in cases of bankruptcy, the question is, with what intent the party absented hirnself from his house, his declaration with the fact of departure, is evidence to explain that intention.” In Lord George Gordon’s case it was held that the cry of the mob might be received in evidence as part of the transaction. 21 Howell’s St. Tr. 542. Starkie, page 4S, further observes, that •in such cases ct the declaration does not depend so much on the credit due to the party who makes it, as to its connection with the circumstances. In the instance of the bankrupt, the declaration which he makes at the time of leaving his house, of his intention •in so doing, is not founded upon his character for veracity, but on the presumption arising from experience, that where a man does an act, his cotemporary declaration accords with his real intention : its connection with the act gives the declaration greater •importance than that which is due to a mere assertion of a fact by a stranger, or a declaration by the party himself at another •time. Such evidence does not rest upon the credit due to the declarant, but might be admissible, even although the declarant in ordinary cases would not be believed upon his oath.’’ This species of evidence is admitted as part of the res gestee on the presumption that it elucidates the facts with which the declarations are connected, having been made without premeditation or artifice, and without a view to the consequences ,* as such, they are considered as better evidence to prove the object for which -they are admitted in evidence: for he who makes such declara-tionsj without any reference to consequences, if he were a competent witness, would frequently be under a temptation to give a false coloring to the circumstance when its tendency was known. •“ Besides,” says Starlcie, “ since in this case the effect of the ..evidence is independent of the credit due to the party himself, it could be of no use to confirm his credit by examination upon oath, and his declaration as a mere fact, is as capable of being proved by another witness as any other fact is.” These seem to be the general principles of law touching the point under' consideration. Most of the declarations of the pauper which were excluded by the Judge presiding at the trial, were evidently made w ithout any reference to consequences, and must be presumed to have been expressive of his intentions on the subject of his residence and the character of it at the several times when those declarations were made. According to the principles above stated, we are of opinion that the proof of those' declarations which was offered and excluded, should have been received and submitted to the consideration of the jury. Whether they would have been considered as of any importance by them, is not a subject for the decision of the Court.

Verdict set aside and a new trial granted.