dissented, and gave the following opinion:—
The town of Kenduskeag, composed of part of Levant and part of G-lenburn, was incorporated in 1852.
It is admitted, that Raymond, the pauper, had his legal settlement in Levant, and that before its division he had removed to Ripley, where he has ever since continued to reside.
It is first to be ascertained from the evidence, in what part of Levant was his “last dwelling place.” As to this there is much conflicting testimony. Raymond and Ms wife concur in fixing, it in that portion of the defendant town which now constitutes part of Kenduskeag. In a question of this description, reliance may reasonably be placed on the accuracy of their recollection. They would naturally recollect their outgoings and incomings, for to them they were matters of interest — to others of indifference. Their testimony receives corroboration from other witnesses. Upon a comparison of all the evidence, I regard it as satisfactorily established, that the “last dwelling place” of the pauper in Levant, was in that part of the town which subsequently, by incorporation, became a part of Kenduskeag.
The pauper having his “last dwelling place” in that part of Kenduskeag, which was severed from Levant, and being absent therefrom at the time of the incorporation of the new town, and having acquired no legal settlement since, it remains to ascertain whether such settlement was continued in Levant, or by the incorporation of Kenduskeag became fixed therein.
The settlement of the pauper depends upon the question, whether or not a “division” of Levant took place, when a part of its territory was, with a part of that of G-lenburn, incorporated into the new town of Kenduskeag. That Levant was thereby shorn of its population, wealth and territory, is unquestioned. Was it thereby divided? Was its unity severed into parts ? If so, does not such severance constitute “division?” If it does not, what does? And when is a town divided ?
The rights of the parties depend upon the construction to *317be given to the fourth mode of gaining a settlement, under R. S., c. 32, § 1, which is in these words: — “Upon the division of any town, any person having a legal settlement therein, but being absent at the time of such division, and not having gained a settlement elsewhere, shall have his legal settlement in that town wherein his last dwelling place shall happen to fall, upon such division. When any new town shall be incorporated, composed of a part of one or more old incorporated towns, every person legally settled in any town of which such new town is wholly or partly so composed, or who has begun to acquire a settlement therein, and who shall actually dwell and have his home within the hounds of such new town at the time of its incorporation, shall have the same rights in such new town in relation to settlement, whether incipient or absolute, as he would otherwise have had in the old town where he dwelt.”
It is as obvious as it can be made to appear by the force of language, that “division” and “incorporation” are indissolubly connected together as part of one and the same transaction.
Towns are not divided by one act, and the parts thus obtained incorporated by another. Whenever a new town is formed from a “part of one or more old incorporated towns,” there must necessarily be a division as well as incorporation. The severance by which the part or parts arc obtained constitutes a division. The incorporation of the new town from the parts thus obtained, includes the idea of a division, without which there would be no parts to be incorporated.
If, “upon the division of any town,” a new town “should be incorporated composed of a part of one” old incorporated town, this would be regarded as a division. It would be a division and incorporation together. If a new town should be “incorporated composed of a part of one or more old incorporated towns,” it is difficult to perceive how the parts of old incorporated towns, thus fused by a new incorporation, can have been severed from the old towns, except by division. The parts of old towns formed into a new one, are not annexed, for there is no' existent corporation to which they are added by annexation.
*318It was held in Barnstead v. Alton, 32 N. H., 245, upon a careful examination of all the authorities, that a town was divided, whenever any portion of it was separated from the rest, whether the severed portion was incorporated in a new town or annexed to an old one.
The fourth mode in its very terms is but one mode. It embraces those absent from the parts of the town divided and those resident in the new town incorporated. It thus makes provisions for all contingencies which may arise. It imposes upon each part of the town the burthen of those, who, having a settlement, may be absent at the division, as well as those who may be residents at the incorporation. The liabilities of the old and new town are to be determined upon the same principles. The last dwelling place of the individual absent, and the actual residence of the individual dwelling and having his home, govern and control.
On any other construction, every town, a part of which may have been incorporated with a part of some other into a new town, will be compelled to bear the burthen of those, who, having a settlement, may be absent from its remaining territory as well as those absent from the part incorporated in the new town. In other words, the town would lose its territory and wealth, and retain all the paupers, who, being absent, would have acquired a settlement upon its lost territory. This would be manifestly unjust.
It has been settled by a series of decisions that the annexation of a part of one town to another, is not to be regarded as a division of the former town, within the meaning of the fourth mode of gaining a settlement, to which reference has been had. To this extent the authorities go and no further. Hallowell v. Bowdoinham, 1 Greenl. 129; New Portland v. Rumford, 13 Maine, 299; New Portland v. New Vineyard, 16 Maine, 371.
The incorporation of a new town from a “ part of one or more old incorporated towns,” is not a case of annexation, nor is it to be regarded as such. When parts of two old incorporated towns are formed into a new corporation, the old towns are divided within the meaning of the statute. Levant *319having been divided, the legal consequences of a division must follow. Lexington v. Burlington, 19 Pick. 426.
The parts of Levant and Gílenburn, “ together with all the persons having a legal settlement therein,” are incorporated in the new town. In reference to similar language, Whitman, C. J., in Belgrade v. Dearborn, 21 Maine, 337, uses the following language: — “The meaning of the words might, perhaps, be satisfied by restricting them to such persons as had a legal settlement in Dearborn, and were, at the time of the annexation, resident on the parts annexed. But it must be regarded as more consonant to the intention of the Legislature, indicated by prior enactments, in pari materia, to suppose they intended to include here, by the words used, all who had acquired their settlement in the territory annexed to the other towns, although removed therefrom at the time of annexation. And moreover it is provided in the Act concerning paupers, that upon the division of towns, those having a legal settlement therein, and who were absent therefrom at the time of such division, shall have their settlements in such town as the part they dwelt upon shall have fallen into.” According to principles upon which the decision in Belgrade v. Dearborn rests, the town of Levant cannot be held to support the pauper Baymond.
In Livermore v. Phillips, 35 Maine, 184, Shepley, C. J., says, “ it is doubtful whether the definition of the phrase used in the statute, ‘ upon the division of any town,’ intimated in the case of Hallowell v. Bowdoinham, will prove to be entirely satisfactory.” In Hallowell v. Bowdoinham, it was hold that a division must produce two or more towns composed of the original territory. But the effect of an incorporation of a new town “ composed of a part of one or more old incorporated towns,” was not before the Court in that, nor in the other cases which determined the effect of annexation.
The construction here given must be regarded as the determination of a question now first argued and presented distinctly for consideration.
It is insisted, that the clause in the Act incorporating Ken*320duskeag, Stat. 1852, o. 485, § 5, which provides that it “ shall not be holden for any liabilities of said town of Levant,” exempts the former from the support of the pauper and imposes the burden upon the latter. But such is not its meaning. The section in which these words are found, relates to the funds and personal property of the towns, and to other debts and liabilities. It contains no allusion to the subject of settlement, or to the future support of paupers. Though Raymond was then a pauper, he might not so continue. The language refers equally to present debts and personal liabilities ; not to debts which at some future time might be contracted, or to liabilities which might thereafter arise. It imposed upon Levant its then existing debts and liabilities. The claim sought to be recovered, was not a liability then existing, nor one that it could be foreknown would ever exist. It was neither within the letter nor the spirit of the Act.
The settlement of the pauper not being in Levant, the action is not, in my opinion, maintainable.