Marlborough v. Sisson

23 Conn. 401 | Conn. | 1855

Storrs, J.

1. We are of opinion that the bills of Foot were admissible for the purpose for which they were received on the trial. Those bills, having been found deposited among the important papers and files of the town of Marlborough, and purporting on their face to be for small supplies of food and fuel sold at various times by Foot to the town, conduced to prove, not only that they were received by the town, although they were unaccompanied with any other evidence that they were paid for by the town or furnished by Foot, or that they were in his handwriting; but also, from the character and quantities of the articles, that they were furnished from time to time by the town for the support of some of its paupers. And as the name of the person for whom the articles were furnished was not mentioned in the bills, they were also admissible for the purpose of rebutting the- evidence of the plaintiff’, by which it was claimed to have been proved, that during the time to which said bills related, the town was in the practice of entering the names of all paupers for whom it furnished support on its books or papers. This evidence having been admitted only for these purposes, a new trial should not be granted on this ground.

2. The remaining question respects the admissibility of the lists of the town of Weybridge. It is the prevailing opinion of the court that those lists were, in connexion with the facts offered to be proved by the plaintiff,' admissible for the purpose of shewing that Ingraham had been charged with the taxes of that town during the two years while he resided there, and that he therefore acquired a settlement therein. Those facts were, that after those lists were made, they were, in conformity with the laws of Vermont, duly returned; that taxes were granted and assessed thereon by the town during those years, and warrants for their collection duly issued to the collectors of those taxes; that Ingraham, upon a demand of payment thereof made by the collector, paid said taxes to him without protest or dissent, that the collector paid the taxes so collected into the treasury of the town, and that the town has ever since returned the same without objection or demand of repayment by Ingraham. The defendants objected to the introduction of these lists, on the ground that they did not contain a particular enumeration of the polls and taxable estate of the inhabitants of the town, as was required by the laws of Vermont, and that therefore Ingraham could not be deemed to have been charged with the taxes imposed on them.

We have no doubt that the want of such a particular enumeration was a defect in these lists which would have justified Ingraham in refusing to pay those taxes, or entitled him to recover back the amount of them, if they had been collected of him against his consent. But it does not hence follow that a payment of them by him voluntarily, and with a knowledgé of such defect, would not amount to a waiver of the defect, which would preclude him afterwards from disputing the validity of the lists. A list may be so defective in substance, either for want of jurisdiction in the listers, or on account of some substantial departure, in the mode of making it, from that prescribed by law, that it would be absolutely void, and consequently furnish no foundation for a tax laid upon it. In such case the list would be a nullity, and the defect therefore could not be waived. Or, on the other hand, there may be, in the form of a list, such an unsubstantial or unimportant deviation from the mode prescribed, that the defect would be deemed immaterial, in which case the defect would not invalidate the list, nor would it be voidable. It would produce intolerable mischief and inconvenience, if every merely literal or trifling mistake in the form of a list should be held to render it absolutely void to all intents and purposes, and the rights of those affected by the proceeding requires no such rigid and narrow rule. There is, also, ,in our opinion, a class of cases falling within neither of these, descriptions, where the defect in the list does not render it .absolutely void, and yet is not of an immaterial character, and where the person against whom it is made out may, at his option, avoid the tax laid on it, or waive the defect: and in the case of such a waiver he can not afterwards take advantage of the defect. It is not easy, nor do we deem it, in this case, necessary, to lay down, in terms, a rule by which it can, in all cases, be determined whether the defect is of such a kind that it renders the list void or only voidable. In the lists now in question, we are of opinion that the defect is of the latter description. The requirement, that the lists should contain a particular enumeration of polls and rateable estate, was introduced for the sole benefit of the owner of such estate. It was introduced as a check against the exercise of arbitrary power by the listers, and to enable the owner to take the necessary steps for a correction of the list, if it is erroneous. He only is interested in the fulfillment of that requirement, and if he is satisfied, there is no good reason why others should interpose to object to this list, for a want of this formality. As to him the maxim, Quilibek potest renunciare juri pro se introducto, would seem clearly to apply. To treat a list defective only in this particular as absolutely void, and therefore a nullity to all intents, when the owner of the property embraced in it is willing to forego this formal objection to it and to consider it as valid, is not required by any principle of policy or justice, nor, as we think, by any rule of law. The plaintiff offered to prove, in connexion with these lists, that Ingraham having knowledge of this informality in them, voluntarily paid to the collector the taxes assessed upon them, that the collector paid them into the treasury of the town of Weybridge, and that that town has ever since retained them without any claim or objection on the part of Ingraham. On these facts we are of opinion that he should be held to have been charged with the payment of those taxes, that they should be deemed to have been legally assessed, and that he thereby became a settled inhabitant of that town. Our decision in this case at the last term is not applicable to the question now before us. The only point then decided, was that, as all the requisites necessary to a legal assessment of taxes exist of record, they can be proved originally only by the records of the town as the best evidence, and therefore that the parol evidence which had been received in the first instance for the purpose of proving the assessment, was inadmissible. Nor do any of the other authorities cited by the defendants, conflict with the view which we have taken of this case. Those cases were decided on the ground that the listers had exceeded then jurisdiction, or that there was such an irregularity or defect in their proceedings that they were absolutely void, or that there was no legal payment of the tax.

A new trial, therefore, is advised.

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

A new trial granted.