City of Bangor v. Inhabitants of Brewer , 47 Me. 97 ( 1860 )

The opinion of the Court was drawn up by

Mat, J:

Assumpsit for supplies furnished by the plaintiffs to one Ephraim W. Howe and family. There was testimony tending to show that said Howe had resided in the defendant town for five years together, without having received, directly or indirectly, any support or supplies as a pauper during that period. It also appeared that, during these five years, the .pauper went with his family into the town of Orrington and worked there for one Brastow, building a wharf, some four or five months, leaving a part of his household furniture in Brewer, to which place he intended to return.

During this temporary sojourn in Orrington, the pauper made declarations tending to show.an intention of removing at some subsequent time, from that place to the town of Erankfort, and of making his permanent residence there. These declarations were offered in evidence by the plaintiffs, and, though objected to by the defendants, were admitted. It further appeared that the pauper did not, in fact, remove to Erankfort, but shortly afterwards returned to his residence in Brewer.

In view of these facts, the presiding Judge instructed the jury, in substance, that if the pauper formed the purpose while in Orrington, of moving to Erankfort, though he did not carry that purpose into effect by such removal, but remained in Orrington after such intention, for a longer or shorter time, the continuity of residence for five years would be thereby broken up.

We think this instruction cannot be sustained; and that the declarations of the pauper, avowing his purpose of a subsequent removal from Orrington to Frankfort, not having been made upon the eve of, or in connection with any such act, were inadmissible. If an intention existed of removing to Frankfort, it was never executed. The first question is, whether the instructions were correct. No question is now better settled, than that, in order to break up an existing residence, such as the statute requires, there must be an act of removal from the place where it exists, accompanied by an intention of the pauper to remain permanently at the place of removal or at some other place, or, at least, the pauper must be without any present intention of returning to the place from which he removed; — and such intention must be simultaneous with the act of removal, or in some way connected with an actual residence in another place. Warren v. Thomaston, 43 Maine, 406. An unexecuted intention of the pauper, while in Orrington, to take up a permanent residence in Frankfort, unaccompanied with any act, can legally have no more effect upon the pauper’s statute residence in Brewer, than if the same intention had been formed by the pauper while residing personally with his family in Brewer, and never executed. The instruction upon this point was therefore erroneous. It is unnecessary to" consider any other.

In regard to the declarations of the pauper, they were clearly inadmissible, except so far as they might tend to contradict the pauper as a witness in other respects. At the time they were made, the statute residence of the pauper, necessary to gain a settlement in this mode, was running on, and the personal presence of himself and family was in Orrington, they being there only for a temporary purpose; and the declarations related to an act subsequently to be performed in Frankfort, but never, in fact, performed. They were therefore wholly disconnected with any act, and were not any part of any res gestee. The authorities cited in defence, and many more that might be cited, show that declarations thus disconnected with the performance of any positive act are inadmissible. We see no contradiction between these declarations and any material statement of his npon the stand.

If the pauper, while residing in Orrington, had made declarations expressive of an intention of his permanent residence there, it may be that such declarations would be admissible, as being connected with, and explanatory of, his actual residence then in that town; but of this we give no opinion, a.s it is not this case. Exceptions sustained.

Tenney, C. J., Rice and Cutting, JJ., concurred. Kent, J., concurred ‘ in sustaining the exceptions on the point that the evidence in question was inadmissible.