Hurlbut v. Green

The opinion of the court was delivered by Prout, J. On the trial of this case, the defendant offered to prove that the plaintiff returned no list in the town of Danville in 1866, and was not taxed in that town. This evidence, on the plaintiff’s objection, was excluded. The question upon which the parties were at issue is one of domicil, or whether on'the 1st of April, 1866, the plaintiff was an inhabitant of Waterford for purposes of taxation, or whether at that time he was an inhabitant of Danville. This question involves not only the fact of an actual residence of the party, but the intent with which it began and was continued, As remarked [319] in the opinion delivered in Hulett, admr., v. Hulett, 37 Vt., 581, “ one may take up his residence in a place, and have a fixed residence or domicil while he remains, though it be for a very short period of time,” while on the other hand it may be continued for a long time without becoming his fixed place of abode. It depends upon the intent and purpose with which the residence was taken up or continued. This is to be ascertained by the duration of the residence, by what the party said, by his conduct, and by facts and circumstances which tend to disclose or show how he regarded it; and under some circumstances, by what he omits or neglects to do. In this case, we cannot presume that the plaintiff abandoned his domicil, and took up a temporary residence in Danville, for the purpose of evading the payment of his just and proportionate share of taxes, which is a common duty and burden resting upon all, and hence the requirement that all taxable inhabitants shall give in all their lists. The plaintiff’s acts and conduct are to be considered in the light of, and as affected by, this requirement. Then again the case presents this feature On the trial the plaintiff claimed that Waterford illegally assessed him, because his residence was in Danville; and in support of this claim he introduced evidence tending to show that he left his former place of residence permanently, intending to make his home elsewhere, and moved to Danville with his wife and a portion of his effects. This claim of residence in Danville, and the facts, are to be considered in connection and as involved in the issue. Consequently, any evidence that had a tendency to show the falsity of either was admissible. 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. This view is not at all in conflict with the decision made in this case, and reported in the 41 Vt., 490. The case as then sent up presented only a question of onus of proof, but is now before us on a question of admissibility of evidence. The comments of the Chief Justice, supposed to bear on the present question, were directed to the point as to the legal right of the town to tax the plaintiff, which we then thought and now think entirely sound, [320] As to the defendant’s request, be was not entitled to the instruction claimed by it. In the opinion alluded to, this is expressly held. On the question of notice, the ruling of the county court was erroneous. The absolute refusal of the plaintiff to pay the tax when required, justified the defendant in proceeding to collect it, as held in Downer v. Woodbury, 19 Vt., 329, and in Wheelock v. Archer et al., 26 Vt., 380. But this error was not injurious to the defendant, as the jury found, by special verdict, that the defendant failed to establish the fact that the plaintiff’s domicil was in Waterford. Judgment of the county court reversed and case remanded.