Marlborough v. Sisson

23 Conn. 44 | Conn. | 1854

Ellsworth, J.

The defendants ask a new trial, because, first, there was no evidence of the existence of a tax, legally imposed upon' the pauper, and secondly, the court mistook the law in its instructions to the jury.

Samuel Ingraham, the pauper, was born in that part of Colchester which is now Marlborough, and is therefore settled in Marlborough, unless he has since acquired a’settlement elsewhere; which the plaintiffs insist is the fact. The burden of proof is, therefore, on them. This supposed new settlement is said to be gained in Weybridge, in Vermont, which settlement, according to our decisions, would be of .the same effect as if acquired in a town in this state. X^ey say he removed to Weybridge many years since, and there lived and paid taxes, long enough to acquire a settlement, under the laws of Vermont. By that law, “ any person who shall inhabit in any town or place within the state, and shall, for himself or on his account, have executed any public office, &c., or shall have been charged with, and paid, his or her share of the public rates or taxes of such town or pláce, for the space of two years, shall acquire a settlement in such town or place.” On the trial, the necessary residence was proved, and not denied, and the question about the public rates or taxes was, whether the supposed rates or taxes were imposed according to law ; it being obvious, that if they were not, this requisition of the law had not been complied with, and the settlement not gained. We think the objection taken to the evidence which was received, and hence to the character of the tax and the collection of the money, as a legal tax, is well taken, and must prevail. It appears, from the statute above recited, that public taxes are laid in Vermont, much as they are laid in Connecticut. Lists are annually made and returned to the towns and general assembly, accompanied with a certificate, that the oath prescribed by law was duly taken by the list-makers. On these lists taxes are laid, by the inhabitants or communities, from time to time, as is required and voted, followed by warrants for their collection.

Now all these requisites are necessary and indispensable, for a legal tax, and they all necessarily exist- of record, and of course can be proved by the record, as the -best evidence. Secondary evidence, in this case, is not admissible in the first instance. The absence of the best and appropriate evidence creates a suspicion that the tax was not well laid, or is otherwise objectionable, or such evidence would have been forthcoming. The court received the secondary evidence, without a proper foundation being first laid for dispensing with the better and higher evidence. Herein there is error, and a new trial must be allowed.

We think that there is no error in the charge which the court gave to the jury. The request of the defendants, for particular instructions to the jury, must be taken- as one and entire. If the whole is not correct, the judge need not regard it, at all, for it is not his duty to dissect it, and select what is right and reject what is wrong. He may, if he please, pursue a different course, and comply with the request in part, and this is the course the judge pursued, in this instance. He might have been entirely silent, but he was not silent, and we need only enquire if what he did tell the jury was correct; and we think it was. He would have been wrong, had he told them, they might presume every fact necessary to find the present settlement of the pauper in Marlborough, for this is the substance of the claim. There could be ho such legal presumption, but, as matter of fact, the jury might draw such a conclusion as they pleased.

A question of estoppel was made. The plaintiffs claimed, that the question is virtually the same against the defendants as if Weybridge was the defendant in this suit, because, it is said, Weybridge could not set up, that their taxes and their collectors -and warrants were not good and effectual, since they raised, from the collectors, the moneys, and have continued to enjoy them. How this would be, if Weybridge was now sued for the support of the pauper, we have no occasion to enquire; but, as to these defendants, we think there is no force in the argument, for there is no privity, between them and Weybridge, to sustain the claim, and therefore they are not estopped by those acts, but may rightfully insist, that all the material facts in the declaration shall be proved and established by common law evidence.

We advise a new trial.

In this opinion the other judges concurred, except Storrs, J., who was disqualified.

New trial to be granted.