Inhabitants of Westbrook v. Inhabitants of Bowdoinham , 7 Me. 363 ( 1831 )

The defendants also moved for a new trial, on the ground of newly discovered evidence, not necessary here to be stated.

Mellen C. J.

delivered the opinion of the Court at the ensuing July term in Waldo.

The jury by their verdict have decided that the pauper gained a settlement in Bowdoinham, in virtue of the statute of 1821, ch. 122, by his dwelling and having his home in that town on that day ; and under the instructions given them they have also decided that he had never lost that settlement and gained one in Westbrook by five years continued residence therein, as was contended at the trial. It was urged, that as it appeared that the pauper had been assessed in Westbrook for five successive years after the year 1821, that town was estopped to deny that he was, during all that time, one of its inhabitants ; but we think the Judge very properly overruled that objection ; because, as the assessment of taxes has relation to the first day of May annually, and to facts as they then existed, such assessment was not inconsistent with his having, between the first day of May in one year, and the first day oí May in the next year, changed his habitancy and home, and become and continued an inhabitant of another town, eleven months of the intervening year. So that the only question arising on the report, is whether the pauper did, during the five years before-mentioned, dissolve his connexion with the town of Westbrook, remove from, and abandon it, with an intention never to return to it. The evidence to prove the fact, and the intention, was submitted to the jury, under the instruction of the Judge that if they believed there had been such removal, with such intention, it terminated his habitancy there; and that he did not again become an inhabitant of Westbrook, until his return to it, eight or nine months after he had left it. We are not dissatisfied with this instruction. Without repeating the facts stated in the report in relation to this point, we are of opinion that the motion for a new trial, founded on those facts and instructions is not sustained. See Catlin v. Gladding, 4 Mason, 308.

As to the motion at common law, on account of newly discovered evidence, we cannot discern its merits ; a part of it is merely cumulative ; and comes from a quarter where it might have been found before; it is merely to throw doubts in the way, as to the pauper’s intentions in removing. And in respect to the exparte affidavit of the pauper touching the question of intention, we can place no reliance upon it. He was a witness on the trial, and was carefully cross-examined, and testified explicitly, as slated in the report. We are all of opinion that there ought to be

Judgment on the verdict.