Inhabitants of Searsmont v. Inhabitants of Lincolnville , 83 Me. 75 ( 1890 )

Virgin, J.

Assumpsit founded on B. S., c. 24, § 35, for pauper supplies, furnished on March 21, 1889, to a man and his family whose settlement was alleged to be in Lincolnville.

Having admitted that the pauper had a settlement in their town in 1862, when he became twenty-one years of age, the law imposed upon the defendants the burden of satisfying the jury that thereafter he acquired a new settlement in Searsmont by having his home therein for "five successive years without receiving supplies as a pauper,” and that any absences therefrom during the five years were of such a character as not to interrupt his residence. Ripley v. Hebron, 60 Maine, 379.

This burden the defendants claim to have sustained,— and the jury have so found, — by testimony tending to show that he acquired such a settlement by having his home therein between the years 1868,— when his former wife was divorced from him,— and 1879, the date of his second marriage. Among other witnesses introduced for that purpose, the pauper himself testifies in the most unqualified manner that he worked several seasons at a Mr. Clark’s in Searsmont during these years, and had his washing and mending done there while working at other places; that he always went there when returning from his various vocations of fishing, coasting, pressing hay and threshing; that he considered Clark’s house his home, and he had no other,

On the contrary, Mr. and Mrs. Clark testify that they did not recollect that the pauper ever left any clothing at their house or the house of their father when away, or that any washing or mending was done there for him when not at work there, or that he came there when returning from his business at other places. Mr. Clark, who had charge of his father’s place after 1864, testified also that the pauper worked for him the whole or parts of the seasons of 1868, 1874, 1878 and 1879 ; that the pauper never asked consent to make his (Clark’s) house his home; that he never gave his consent to do so ; and that never to his knowledge did the pauper ever have a home there except when there at work.

There was also testimony that the pauper worked several falls and winters at pressing hay for a Mr. Frohawk in Searsmont.

On the principal issue of fact the testimony was conflicting. The jury who saw and heard the witnesses, without any suggestion of Mas or prejudice, found by their verdict that the pauper did acquire a settlement in Searsmont; and while by reading the testimony we might and probably should come to a different conclusion, still we have not the facilities which a jury of the vicinity had for arriving at the truth. And as there is ample testimony if true to sustain the verdict, we think the motion must he overruled.

The charge was very full and explicit upon the law and the only exception taken and now relied upon is to the following extract therefrom : " A man may claim to have, and have his residence in a town, if he does not break the criminal law, and no man can shut him out of that town or deprive him of that residence if he has that intention, although there is not a roof in that town that he has a right to lie under and call his own. He may sleep out doors if he desires.”

Had this been all that the charge of the presiding justice contained, upon the subject of residence, the plaintiffs’ complaint that the jury were misled might have some foundation. But the copy of the whole charge which was expressly made a part of the bill of .exceptions, shows that the charge was very full on this subject, and the portion excepted to is a single sentence selected from it. After explaining to the jury the distinction between a fixed and jiermanent residence and that of a temporary character, and that one may have a home in a town although he has no particular house there as the place of his particular abode, he made the remark to which exception is taken as an illustration simply of an extreme case. And then after declaring that the want of a house or shelter is a circumstance affecting the question whether he really has a residence in a town or not he then called the attention of the jury directly to the issue as follows : " When a person’s residence in a town depends wholly upon his having a home in a particular house or with a particular family, he must have a right to dwell there with such family for such a period of time as he sees fit to be there. It may be based upon the permission of the owner granted by direct promise to allow him to stay, or by implication growing out of the situation of the parties, as where one labors for another,” &c. And the presiding judge also called the attention of the jury to the testimony of the witnesses upon the one side and the other upon this point.

Motion and exceptions overruled.

Peters, C. J., Walton, Libbey, Haskell and Whitehouse, JJ., concurred.