Hurlburt v. Green

The opinion of the court was delivered by PieRPOint, C. J. The decision of the county court as to the rule of damages was clearly correct. The plaintiff having procured the horse to be bid off at the auction sale for himself, and having appropriated him to his own use, is entitled to recover only what he was compelled to pay for him, as that is the extent of the injury he has sustained in consequence of the act of the defendant. The plaintiff requested the court to instruct the jury, “ that the-burden of proof was on the defendant to prove that the plaintiff’s residence was in the town of Waterford on the first day of April, 1866', and that it made no difference whether in point of fact the plaintiff was listed in any other town or not; that the defendant must show, by a fair balance of testimony, that the plaintiff’s residence was in the town of Waterford, on the first day of April, 1866, or the defendant could not recover.” “ The court instructed the jury that the burden of proof was on the defendant to show that the plaintiff was legally listed in the town of Waterford for the year of 1866, but qualified the rule as applied to the facts of this case, by telling the jury that, if they were unable to find a balance of proof either way, and should find the testimony equally balanced as to whether the plaintiff’s principal habitation was in the town of Waterford or Danville, then they should give their intendment in favor of the defendant,, and bring in a verdict for the defendant, because it not appearing that the plaintiff was listed in the town of Danville, or returned any list anywhere, it is the policy of the law that every man shall pay a tax somewhere; that the acts and evidence that indicate the domicile may be equivocal and conflicting, so that if they indicate two places equally as the domicile, then in said case, if the plaintiff had given in his list in one town and not the other, that choice would control; but as he did not, the jury should in [495] such case presume in favor of the town where he was in fact put in the list.” Upon the trial the defendant put in evidence of all the facts necessary to justify his taking the horse of the plaintiff, except evidence of the plaintiff’s residence in Waterford on the first of April, 1866, and his liability to be listed there. On this point the defendant claimed that the plaintiff was a resident of Waterford. The plaintiff claimed that he was a resident of Danville, and not of Waterford. The burden of proof, it is conceded, is upon the • defendant. The case standing thus, it will hardly be claimed, that the fact that the plaintiff was listed in Waterford, and the absence of all proof as to whether he was listed in Danville or not, would warrant the jury in presuming that the plaintiff’s residence was in Waterford, and that he was properly listed there. That would be changing the burden of proof from the defendant-to the plaintiff. ! After the testimony on both sides is all in, it is supposed that the evidence on each side is exactly balanced by that of the other. It must be kept in mind that the issue is as to the plaintiff’s residence in Waterford, and this the defendant must establish by a fair balance of testimony to entitle him to a verdict. When he has put. in his evidence, the plaintiff puts in evidence that exactly balances or neutralizes it, so that there is no preponderance in favor of the defense; the defendant has failed to establish the necessary fact by a fair balance of proof, and must fail upon the testimony. The parties in fact stand just as they stood before the evidence was introduced, each upon his own claim, each has put in evidence in support of it, and the other has neutralized it, so that upon the evidence the jury are unable to find any fact. In this contingency the court tell the jury in substance that, as every inhabitant of the state is bound to pay a tax somewhere, and as it does not appear that the plaintiff had been listed in Danville or anywhere else, and as he had been listed in Waterford, they should presume that he was liable to be listed in Waterford, and bring in a verdict in favor of the defendant. This, we think, was error. It is in fact changing the burden of proof and making the question turn upon the fact of whether the plaintiff had been listed [496] elsewhere, and not upon the fact of whether he was rightfully listed in Waterford. The fact that a man has not been listed in a town where he ought to be, furnishes no reason for listing him in a town where he ought not to be, neither does any presumption ai'ise therefrom in favor of the latter town. The town that sets a man in the grand list and proceeds to tax him, takes upon itself the burden and responsibility of showing that he was a resident of the town and liable to be set in the list, if the right is questioned. If the plaintiff had given in his list in Danville or any other town, it would have been a circumstance tending to show where ho considered his residence to be, but it would not be conclusive ; .he might still be a resident, and liable to be listed, as such, in another ; but his omission to give in his list anywhere, can give no additional right to any town to list him. We think the plaintiff was entitled to a charge substantially as he requested. Judgment of the county court reversed and case remanded.