34 Me. 310 | Me. | 1850
The declarations of a party to a transaction, made at the time of the acts done, and expressive of their character, motive or object, are regarded as “verbal acts, indicating a present purpose and intention,” and are therefore admitted in proof, like any other material facts. They are a part of the res gestee. 1 Greenl. Ev. § 108; Gorham v. Canton, 5 Greenl. 266; Baring v. Calais, 2 Fairf. 463. But declarations cannot with propriety be received as evidence, unless the act which the declarations accompany, has itself a material bearing upon the issue presented; for the act is
The defendants did not deny the settlement of the pauper in their town, derived from her father, who resided there at the time of the Act of incorporation. The ground taken in defence was, that the pauper moved into the town of Corinth, after she became twenty-one years of age, and lived there for the space of five years together. This proposition of the defendants they were required to sustain by proof, or fail in the defence. It was' necessary, that it should appear, that she resided there during that period, with the intention of malting that place her home. When she was in the act of coming into the town of Corinth, from another town, where she had been residing, the design of making it her home, or as a place, where she proposed to remain temporarily, for a certain specific purpose only, might be known in some measure by the declaration of her object, accompanying the act. The act itself might be precisely the same in one case as in the other. After she was found in the town of Corinth, working in different places therein, or in neighboring towns, the acts of passing from one house to another, in the prosecution of her ordinary business, were not evidence to show that she had come into that town from some other; that act had already transpired, and her subsequent declarations could not add force or give character to a transaction, which was before complete. They were not a part of the res gestee ; were not acts, in the least indicative of a design at that time to change her residence from one town to another, or as going into the town of Corinth as the place of her home. Such declarations could have no greater effect, than those made, when she might be passing to and from church or public meetings, or in going from one part to the other of the house or appendages, where she was at the time boarding. The act itself not being one expressive in the least, of an intention of living in one town rather than another, but only indicating to what place in the town she "might be going, either as her per
The defendants insist, that the instruction to the jury “ that in order for them to find, that Clarissa, [the pauper,] had gained a settlement in Corinth by five years residence, they must be satisfied, that she had voluntarily, and by mutual consent of her parents and herself made herself a member of her father’s family,” was erroneous. The legal correctness of instructions must be determined in some measure by the propositions of fact attempted to be supported by the evidence at the'trial. From the case before us, it appears that the defendants did not undertake to prove that the pauper moved into the town of Corinth with the design of making the town as such her home for an indefinite period of time. If such had been their attempt, and proof had been introduced, for that purpose, it might not have been material that the place of her residence should have been one, where she had a legal right to remain, by being the owner of the house, or by a mutual understanding between the owner thereof and her, that she should occupy it. But the case finds, that the plaintiffs introduced evidence to prove, and the defendants to disprove, that in June, 1839, she being then of age, the pauper moved into Corinth with the intention thenceforward to make her home at her father’s house in that town. Her object, as proposed to be proved, was to find a home in the family of her father; the fact that his house was in the town of Corinth, had no influence upon her mind, in forming - the design to live with him. She is not represented as having a wish to malee any other place in that town her residence; or to remain there for any other purpose than to be an inmate in his own family. Consequently in order to constitute a settlement in the town by a residence of five years together, it must appear that she had her home at her father’s house. What was necessary to make his house her home ? Home, when restricted to the house of a person’s residence, must be the place where he has the design and the right for the time
Exceptions are taken to the instructions, “ that the same kind of residence, which would be necessary to fix the pauper’s settlement in Corinth, would make her subject to be affected by supplies furnished to her father.” If the pauper’s residence was in her father’s family, and in common with the other members of it, in the sense which has been considered necessary to constitute it her home, the destitution of her father, which made it proper that he should be relieved by the town, would apply to her, and the supplies must be treated as furnished to both. If the supplies were furnished on the application of the father, and she being in his family by her own wish and his consent, partook of them, they were indirectly furnished for her relief. Supplies obtained on the request of her father, of which she partook, when she was compelled to be in his family against her wishes, and when she could have lived elsewhere, if left unrestrained, could not make her a pauper; neither would she be considered as having relief from the town, if she took, against the consent of her father, the supplies which were furnished on his application and exclusively for his relief.
The instructions, which were first requested, and given with the qualification of the Judge, were substantially a repetition of the general instruction, which had been previously given, and without the qualification would have been incorrect.
The second instruction requested was properly withheld, it being upon a subject, which was wholly for the consideration of the jury. In the opinion of a majority of the Court, the
Exceptions must be overruled.
