On the 13th day of April, 1852, the easterly part of the town of Brewer was incorporated into a new town by the name of Holden; and, upon the facts stated in the case, it is very clear, that the pauper, whose settlement is in controversy, had, at and before the time of this division, acquired a legal settlement in Brewer, by more than five years continued residence in that part of the town which still remains Brewer. The Act incorporating Holden contains no provisions with reference to the settlement or support of the paupers then upon the town of Brewer, or for the adjustment of any questions relating to such settlement. Holden v. Brewer, 38 Maine, 472. In this particular the rights of the old and new town are left to depend wholly upon the general law.
The pauper, for whose support this action is brought, at the time of the division, and for several years before, was, and had been supported by the town of Brewer at their poor house on the town farm, which upon the division fell into the territory which became and now is the town of Holden. The pauper having gained a settlement in the town of Brewer before its division, will retain such settlement until a new one is acquired.
It may be well first to inquire whether, under the circumstances of this case, the pauper gained a new settlement in Holden, by reason of the Act incorporating that town, under any of the provisions of the general pauper law then in force. If he did, the plaintiff cannot recover. Such settlement can have been gained only under that provision of the Revised Statutes, which is contained in the latter clause of the fourth mode in § 1, c. 32, by which it is provided, that “when any new town shall be incorporated, composed of a part of one or more old incorporated towns, every person legally settled *549in 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 bounds 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.” Under this provision all those persons, who at the time of the division actually dwelt and had their homes in that part of the old town which became incorporated into the new, and who had their legal settlement in the old town, as it existed before its division, acquired a new settlement in the new town; whilst all other persons continued to have their settlement in the old town. The question of settlement in the new town depends, therefore, upon the fact of an actual home, and not upon a temporary residence within its limits at the time of its incorporation.
In the case now under consideration, Day, the pauper, appears to have had his last voluntary home at Austin’s, in that part of Brower now Eddington, unless his residence at the poor house in Holden, where he was supported at the time of the incorporation of that town, can properly be regarded, within the meaning of the provision of the statute just cited, as his actual home. His residence there at the poor house, we think, cannot properly be regarded as possessing the characteristics of a statute home. It is true, that he seems to have had no right or inducement to return to his former residence. His home there was broken up, and ceased, by the refusal of Austin to keep him any longer. He was a single man, and without any means or property for his support, having, so far as the case discloses, no earthly object to attach him any more to one place than to another. His residence at the poor house was a matter of necessity. He must be regarded as being there neither animo manendi, nor animo revertendi. He was subject to removal at any time, not at his own will, but at the option and discretion of others. The *550town, or its overseers of the poor, might remove him at pleasure. His supplies were all furnished by the town. We are of opinion that such a residence does not constitute a home, within the meaning of the statute. An opposite construction of the statute would fix the settlement of all the paupers who happened to be residing at the common poor house at the time of the division of any town, upon that town in which the poor house might happen to be, whilst the construction which is adopted, leaves them to fall into the old or new town, as their actual homes at the time of the division, if they have any, may require. Such a construction is more equitable and humane.
It is said that such a construction of the statute is in conflict with the case of Mount Desert v. Seaville, 20 Maine, 341. But that case, though somewhat similar, is not like the present. There, the paupers did not reside, as such, in the new incorporated town, at the time of the division of the town of Mount Desert. It is true they had acquired a settlement in the old town, by residing many years in that part of it which was afterwards incorporated into the town of Seaville. If the paupers had acquired their settlement in that part of Mount Desert which remained, after the incorporation of Seaville, and had been at the time of such incorporation, resident as paupers for the mere purpose of support within the new town, then the case would have been like the present.
The question, whether the home which the paupers in that case had, prior to their falling into distress, some eleven years before, and which, by the division of Mount Desert, fell into the new town of Seaville, continued to exist at the time of its incorporation, does not seem to have been very fully considered by the Court. It was sufficient, that such home did not exist at the time of the incorporation, to prevent the paupers from gaining a new settlement thereby in the new town of Seaville. The question, whether such a residence as the paupers had in that part of Mt. Desert which remained, would constitute a home within the meaning of the statute, was not *551discussed at all. So far from it, the opinion in that case distinctly asserts that it is not material under what circumstances they resided there. It is true, the Court must have found, under the circumstances of that case, that the paupers did not actually dwell and have their homes in the town of Seaville, at the time of its incorporation; but they may have done so, because they were satisfied that their old homes had been broken up and discontinued in that case as in this, rather than because the paupers had established a new one in that territory which remained as Mt. Desert. That case, therefore, can properly be regarded as going no further than to decide, that a settlement, acquired in any town prior to its division, adheres to the old town, unless the facts existing at the time of the division are such as to transfer such settlement to the newly incorporated town; and that the facts necessary to transfer such settlement, did not exist in that particular case.
In the present case, it appears that the pauper, after his removal from Austin’s, had no home remaining where it was before he fell into distress and went to the poor house; such home having, as we have seen, been broken up and lost. But Ms settlement was in the plaintiff town at the time of its division; and, in our judgment, he did not, by reason of his removal and residence at the poor house, there dwell and have Ms home in that part of said town which was incorporated into Holden, in any such sense as to gain a new settlement in that town for that reason. His settlement, therefore, remained in Brewer, and was there March 16, 1855, when that portion of the town in which lie gained his settlement was annexed by an Act of the Legislature to the defendant town.
It does not appear, from any facts in the case, that the pauper, at the time of the annexation of a part of the town of Brewer to Eddington, actually dwelt and had Ms homo, in any sense, upon that part of the town of Brewer which was so annexed. His home, then, had ceased to exist, when lie went to the poor house in 1845. It does not appear that he ever returned to reside there afterwards even as a pauper. Under *552sucb circumstances, bis settlement still remained in the town of Brewer. Starks v. New Sharon, 39 Maine, 368.
Plaintiffs nonsuit.
Tenney, C. J., and Hathaway, J., concurred in the result. Goodenow, J., concurred.