Thorndike v. City of Boston , 42 Mass. 242 ( 1840 )

Shaw, C. J.

The object of the present action is to recover back a sum paid by the plaintiff to the city, for a tax upon his poll and personal property, as an inhabitant and resident of the city, in May, 1837, and which he insists was wrongfully assessed upon him, because he had then ceased to be an inhabitant of the city.

The questions of residence, inhabitancy or domicil, — for although not in all respects precisely the same, they are nearly so, and depend upon much the same evidence, — are attended with more difficulty than almost any other which are presented for adjudication. No exact definition can be given of domicil; it depends upon no one fact or combination of circumstances, but from the whole taken together it must be determined in each particular case. It is a maxim, that every man must have a domicil somewhere ; and also that he can have but one. Of course it follows, that his existing domicil continues until he acquires another ; and vice versa, by acquiring a new domicil, he relinquishes his former one. From this view it is manifest that very slight circumstances must often decide the question. It depends upon the preponderance of the evidence in favor of two o) more places ; and it may often occur, that the evidence of facts tending to establish the domicil in one place, would be entirely conclusive, were it not for the existence of facts and circumstances of a still more conclusive and decisive character, which fix it, beyond question, in another. So on the contrary, very slight circumstances may fix one’s domicil, if not controlled by more conclusive facts fixing it in another place. If a seaman, without family or property, sails from the place of his nativity, which may be considered his domicil of origin, although he may return only at long intervals, or even be absent many years, yet if he does not by some actual residence or other means acquire a domicil elsewhere, he retains his domicil of origin.

The jury in the present case found a verdict for the plaintiff, thereby affirming the position that he was not an inhabitant of Boston, liable to be taxed, in May, 1837; and the defendants have moved for a new trial on several legal grounds.

The first question is, whether the instructions of the court to the jury were correct. There was evidence tending to show, that when the plaintiff removed with his family to Edinburgh, in 1836, he did it with the intention of fixing his residence permanently in Scotland ; and also, that if he should return to the United States, he should not return to Boston, but settle in New York or Baltimore. In reference to this evidence, the jury were instructed, that if they were satisfied that the plaintiff went abroad, not for the mere purpose of travelling, or for any particular object, intending to return when that was accomplished, but with the intention of remaining abroad for an indefinite length of time, or with the intention of not returning to Boston to live, in the event of his return to the United States, then he ceased to be an inhabitant of Boston, liable to taxation.

We think this direction, in connexion with the subject matter to which it applied, was correct. The actual change of one’s residence, with his family, and the taking up of a residence elsewhere, without any intention of returning, is one of the strong indications of change of domicil, and, unless controlled by other circumstances, is decisive. It was for the jury to determine whether there were any circumstances sufficient to control such conclusion. If the plaintiff had left Boston and actually taken up a residence, with his family, in Scotland, without any intention of returning, thereby assuming that country as his definite abode and place of residence until some new intention had been formed or resolution taken, he had ceased to be an inhabitant of Boston, liable to taxation for his personal property.

The next question is upon the admission of several letters of tire plaintiff. They were offered on the ground that they were declarations of the plaintiff, accompanied with his acts of removal from Boston to Edinburgh, addressed to his agent in the ordinary course of his business, and were, therefore, as res gesta good evidence of his intentions connected with those acts. The court are of opinion that the letter of October 27th, 1837, was admissible on this ground. The taxes are assessed as of 1st May; but it is well known that the assessment is made in the course of the summer, and the tax bills issued in September. There is no proof from the tenor of the letter or other evidence, that at that time the plaintiff knew that the tax had been assessed upon him. It was written, therefore, before any controversy, and before he had any interest to make evidence for himself on this subject. Doe v. Arkwright, 5 Car. & P. 575. The admissibility of the later letters is much more questionable. The admission of declarations, either written or verbal, in connexion with acts done, and giving a character to such acts, depends much on circumstances, and upon the nearness or distance of the time of the declarations made to the act done. The most common instances arise in cases where certain acts, done with certain intentions, constitute acts of bankruptcy, and the intention is the main queston ; declarations of the bankrupt, verbal or written, at a near time of the act done, are admissible. Marsh v. Meager, 1 Stark. R. 353. But in this case, the letters were written after the suit brought, and we are strongly inclined to the.opinion that they were not admissible. Then an important question arises, whether on that ground a new trial ought to be granted.

It has sometimes been said by judges of English courts, that an application for a new trial, being to the discretion of the court they will not grant it, if on the whole the court can see that justice has been done. Doe v. Tyler, 6 Bing. 561. Horford v. Wilson, 1 Taunt. 12. There seem, however, to be obvious difficulties in placing the matter upon this ground. It is not always easy for the court to distinguish between the force and effect of the competent and incompetent evidence, and to say with certainty, that the latter has had no influence in deciding that justice has been done, and that the evidence, independently of the incompetent evidence admitted, is sufficient to warrant the verdict. But there is an objection deeper and more formidable in point of principle than this ; it arises from that fundamental rule in the conduct of jury trials, that it is as much the province of the jury to ascertain the truth of facts upon competent evidence, as it is the province of the court to decide upon the competency 'of evidence, and generally upon the rules of law by which a jury are to be governed. This consideration, taken in connexion with the difficulty of ascertaining upon a mass of evidence, some of which is incompetent, how great an effect is to be attributed to the incompetent evidence, renders it difficult to say, that the incompetent evidence was not the turning weight in the scale which caused the verdict.

It is, however, manifest in many cases, and it must be obvious to those who are conversant with the conduct of jury trials, that after a long trial, embracing a great variety of evidence, the admission or rejection of a particular piece of evidence is wholly immaterial. It not unfrequently occurs, that in the early stage of a cause, evidence is admitted which ought to have been rejected, or rejected, which ought, to have been admitted; and afterwards, in the further progress of the trial, other evidence, unobjectionable, is offered, which renders the evidence before admitted or rejected wholly immaterial. It may either prove the same fact by evidence wholly unobjectionable, or by placing the cause in another aspect, show it to be wholly immaterial. In such a case, it wrould seem to be inconsistent with the great purposes of jury trial — the discovery of truth and the attainment of justice — to adopt and apply an inflexible rule, that such a verdict must be set aside and a new tria1 ordered, especiallv when it appears upon the whole evidence that another verdict, upon the same evidence, rejecting the incompetent evidence which had been admitted, or adding the competent evidence which had been rejected, must be the same as it is, or be plainly wrong.

But we think there is one rule upon this subject which may be safely adopted, and which is perfectly consistent with the principle which assigns the duty of finding facts upon evidence to the jury, and that of pronouncing the law to the court. By the modern practice, courts are constantly called upon, upon motions for new trials, to consider the weight and sufficiency of evidence ; and though they do not pronounce a judgment upon their view of the evidence, except when it is specially referred to them, yet they do and must so far decide upon the weight of evidence as to determine whether a verdict shall stand or be set aside, as against the weight of evidence ; by which the same evidence is referred to another jury. The grounds upon which this power is exercised have been too often explained to require repetition.

Taking this principle as a guide, we think the rule may be thus stated : where evidence has been improperly received or rejected, and the verdict is found against the party taking the exception, and a motion for a new trial is made on that ground, such motion will not be granted, if the court can see plainly from the whole evidence, that independently of the evidence received or rejected, the evidence in support of the verdict so decidedly preponderates, that a verdict the other way would be set aside as against evidence. Such a rule, we think, will tend to save unnecessary expense of litigation, to subserve the purposes of justice, and will not be inconsistent with strict legal principle. Such also, we think, is the rule recently adopted in the courts of common law, limiting the broader construction formerly put upon the powers of the court in this respect. Rutzen v. Farr, 4 Adolph. & Ellis, 56. Wright v. Tatham, 7 Adolph. & Ellis, 330. Crease v. Barrett, 1 Crompt. Mees. & Rosc. 919. S. C 5 Tyrw. 458.

The only remaining question is, whether the evidence in the present case, independently of the plaintiff’s letters, written after he had knowledge that a tax had been assessed upon him, was so conclusive, that a verdict against him could not have been retained by the defendants.

(The chief justice here recapitulated the evidence, as stated in the report thereof by the judge who tried the case.)

Guiding ourselves by the rules which have been applied to motions for new trials, the court are of opinion, that a verdict against the plaintiff, upon this evidence, finding that he had not changed his residence and ceased to be an inhabitant of Boston, at the time this tax was assessed, would have been so manifestly against the evidence, that on a motion for a new trial, it could not have been supported.

Judgment on the verdict.