39 Me. 333 | Me. | 1855
— It is admitted that the pauper whose settlement is controverted, had a derivative settlement in Brighton. The defence was, that by a residence in- Cornville, during a period of five consecutive years, he had gained a settlement in that town, in his own right. The contested point at the trial, was whether he had resided in Cornville during that time, intending to make that place his home, or had simply been, absent from Brighton, seeking temporary employment, animo revertendi.
The pauper, while in Cornville, had resided in the family of one Barker, who was called as a witness, and when upon the stand, the counsel for the plaintiffs put to him the following interrogatory; "At anytime when Berry (the pauper) went away from your house, what did he say ?”
This question was objected to by the counsel for the defendants; but the Court allowed the plaintiffs to inquire of the witness what Berry said, while in the act of going from witness’ house, touching his intentions in going, as part of the res gestee.
By this interrogatory, the declarations of the pauper were called for, at any time, when he was going from the house of
In the case at bar we are satisfied, as well from the argument of counsel, as from the answer of the witness, that the interrogatory was understood to apply only to occasions when the pauper loft the house of the witness to go to Brighton.
With this modification, it is contended that the question is still too general and uncertain; and that the declaration of the pauper can only be given in explanation of the act of going to Brighton, at a time when he was actually changing his residence, or moving, from one town to the other.
To make the declarations of a party who is competent to bo a witness, admissible as “verbal acts,” those declarations must accompany, and be explanatory of, some act which of
In Gorham v. Canton, 5 Maine, 266, it became important to determine where one Enoch Waite had his domicil. He appears to have been a man of migratory habits, who had lived in the family of Doct. Holland, in Canton. The plaintiffs were permitted to prove that Waite, when on one of his perigrinations and when in the town of Falmouth, declared he was going home, to Doct. Holland’s. This evidence was objected to, but the full Court decided that it was properly admitted as part of the res gestee. WestoN, C. J., in delivering the opinion of the Court, says, “ had the pauper declared that he was going to consult Dr. Holland, as a physician ; to adjust accounts between them; to procure the clothes he had left at his house, or for any special purpose, proof of such declarations would have been admissible. Such declarations show the intention with which the act was done.”
In Baring v. Calais, 11 Maine, 463, the defendants offei’-ed to prove certain declarations of the pauper, while at Baring, touching his intentions as to residence. These declarations were excluded by the Judge who presided at the trial, and for that cause a new trial was granted by the full Court.
The rule of law is too well established on this subject to require illustration by the citation of authorities.
In the case at bar, the original home of the pauper was
The act itself being pertinent and proper to be proved, tho force and effect to be given to it would depend upon the intent with which it was performed. As one legitimate mode of ascertaining that intention, resort is bad to the declarations of the party, made at the time, and in explanation thereof. We think the answer of the witness was properly admitted. Exceptions overruled.