Fulham v. Howe

60 Vt. 351 | Vt. | 1888

The opinion of the court was delivered by

Veazey, J.

The exceptions are numbered in the bill of exceptions, and are taken up and numbered in the same order in this opinion.

I. If there was any error in excluding the testimony of Harpin, it is not available to the plaintiff by reason of the verdict for the defendant. Frary v. Gusha, 59 Vt. 257.

II. Public Acts, No. 3, of 1884, entitled, “ An act relating to the grand list,” provides, section 3, that the number of inhabitants of a town or city, for the purposes of this act, shall be deemed to be the number of inhabitants as returned by the United States census last completed before the making of the list.

The population of Ludlow in 1880 was a material fact to be proved. We hold that the printed Compendium of the 10th-Census was legal evidence for this purpose. The book was compiled pursuant to an Act of Congress, and was printed at the government printing office at Washington. In Watkins v. Holman, 16 Wheat. 25 (Bk. 41 1. ed.), it was hold that a volume of state papers showing the report of certain commissioners under an Act of Congress confirming the title in question, was admissible in evidence. It was put on the same ground as Journals of Congress and of state legislatures, and reports sanctioned and published by authority. As to the volume there in question the court said : “ Now this original report, duly authenticated by the'Treasury Department, to which it was made, would be evidence, and it is evidence in the published volume. The very highest authenticity attaches to these state papers published under the sanction of Congress.” To same effect is Bryan v. Forsyth, 19 How. 334, and other cases.

III. The listers of the toAvn assessed the plaintiff $15,000, under the authority of Act No. 2, sec. 17, of 1882, which contains this clause, viz. : “ And if the sum obtained by doubling is, in the opinion of the listers, less than the amount of the taxable property of such person or corporation, they shall further assess such person or corporation for a sum which will, in their judgment, make up such amount.”

The testimony of Mayo was offered for the purpose of attacking the judgment of the listers in making that assessment, the claim now being that the listers had no evidence upon which to base a judgment. The plaintiff admits, and even claims, that the listers acted judicially, and does not deny but that they were acting within the scope of their authority, but insists upon the right to upset their judicial act in this collateral suit.

We think this claim is against the settled rules of law. A judgment can be impeached only by a proper proceeding bearing directly upon the judgment itself to vacate and set it aside. Porter v. Gile, 47 Vt. 620.

When it is admitted, as it seems to us it must be under the terms of this statute, that the listers act judicially in making such further assessment, then the ordinary rules as to judgments must follow. Fuller v. Gould, 20 Vt. 643. But the aggrieved party in a case like this is not without remedy. Tie has notice of the assessment, and may appear before the listers to have his list corrected — section 21; and may appeal from their decision to the board of civil authority, and there be heard and have further corrections made — section 22. But there is no further statutory provision for relief. Resort to the common law courts can be had only according to the rules of law that pertain to the practice of those courts.

We hold that, the ruling of the court excluding the testimony of Mayo was correct.

IV. The inventory of the plaintiff, and his affidavit which he used before the listers, were properly rejected on the ground that declarations of a party in his own favor are not admissible except as a part of the res gestas.

V. A person’s intention as to where he will have his legal residence has important bearing in determining its location. But his intention as to whether he would engage in business in a particular place would not tend to show what his intention was as to making that the place of his legal residence. This is the only ground ríow claimed for showing what the plaintiff’s intention was in respect to engaging in business in Ludlow. We think it was properly excluded. It was an attempt to show what his intention was in a material respect, by offering to show what it was in an immaterial respect.

VI. Under point six the bill of exceptions is so meagre that a discussion of the ruling could not be of any value in another trial. It is obvious that the admissibility of testimony of the character offered would depend largely upon circumstances. It cannot be said that it would be inadmissible in every case. In this case it was admitted but its bearing restricted. There is not enough detailed to show that the restriction was not warranted.

VII. The plaintiff’s offer to show that he registered and voted in New York in the fall of 1886, standing alone,, should have been rejected; but the offer following in the clause in parenthesis, if proved, would have made the fact of registering and voting admissible, and so we think the offer as a whole as it stands in the exceptions was improperly rejected. Mitchell v. United States, 21 Wall. 350. This is so plain that it hardly warrants discussion, and indeed it is not denied by defendant’s counsel. Their claim is that no such offer was made, and they urge the right to refer to the reporter’s minutes in support of their claim. The exceptions-say : "The reporter’s minutes as to what the plaintiff testified to having been done by him in New York in the matter of registering, voting and paying taxes may be referred to, and said minutes are to control when they conflict with what is said in the exceptions.” It will be noted that this reference is to the testimony of the plaintiff, not to the plaintiff’s offer of evidence. The testimony throws no light whatever on the point. Indeed, his testimony was excluded. We are therefore obliged to take the bill of exceptions as it stands on this point, although we are apprehensive that by inadvertence it may not present the question just as it came up in the court below.

VIII. Under point eight we think the ruling excluding the testimony offered was correct. The offer was to show that the plaintiff took measures sufficient, as he supposed, to have his name put oh the New York City Directory for 1886, and what means he . employed to that end. It seems he did not succeed, and all that he did was long after April 1st. It is not claimed that his right to have his name inserted in a subsequent directory depended on his legal domicile in April previous.

IX. It was held in Hurlbut v. Green, 42 Vt. 316, where the general question on trial was the same as in this case, that ¿it was competent for the defendant collector to show that the plaintiff was not taxed in the town where he claimed his domicile was on April 1st. Phout, J., there says : “ Proof that the plaintiff had given in a list in Danville would have been admissible in support of his claim, and so would the circumstance, so to call it, that he did not, as affording an inference that it was unfounded, and that he so regarded it.”

In Hulett v. Hulett, 37 Vt. 581, the issue was as to the domicile of the defendant. He claimed it was in Hampton, New York, and was allowed to testify that he never paid taxes any where but in Plampton. This was treated in argument and by the court as evidence that he paid taxes there, and was held admissible, witl out showing what the law of that state was on the subject of taxation, and on the ground that it had a tendency to show that the defendant considered that place to be bis legal residence. The court said : “ If the law of New York was such, or this property was of such character, or so situated, as to make that fact of no importance, it should have been shown by the plaintiff as an answer to this evidence.”

In Mitchell v. United States, 21 Wall. 350, in his enumeration of the circumstances relied upon to establish an animus manendi, Justice SwayNE mentions the payment of personal taxes. . This plaintiff had been a resident of New York and exercised the rights of a citizen there for many years, and was claiming that he had made no change in his legal residence, and that his stay in Vermont was for temporary purposes only.

While the laws of states vary in the detail as to taxation, I have never heard of one where total exemption prevailed. The existence of such a haven of relief and joy could hardly, fail to be a matter of universal knowledge. Owing to the universality of taxes we think the same rule should obtain where the domicile is claimed to have been on a given day in another state, as well as where it was claimed in another town in this State. Moreover, the explanation of the non-payment of taxes in New York would be more likely to be within the knowledge of the plaintiff than of the defendant. We think there was no error in the ruling under exception nine.

X. There is not enough stated under exception ten to show error in the ruling. If an offer had been made to show why the plaintiff had not continued to pay taxes in New York for the purposes of meeting testimony that he had ceased paying there, it would have presented a different question. But the question which was objected to, standing alone, was apparently immaterial.

Several exceptions were taken to the refusal to charge the jury as requested, and to the charge as given, but it is not deemed best to pass upon them, as they are not likely to arise in another trial, and do not involve propositions of general application.

Judgment reversed and cause remanded.