Cole v. Inhabitants of Cheshire , 67 Mass. 441 ( 1854 )

Thomas, J.

This is an action of contract to recover money paid the defendants for taxes, which the plaintiff says were illegally assessed, and which he paid under protest.

The question really at issue between the parties' and upon which the case was determined was one of domicil, whether the plaintiff on the first day of May 1851 was an inhabitant of Cheshire, and so liable to taxation in that town. He had been an inhabitant of Cheshire to April 27th 1851, and that domicil continued till he had acquired a new one. He averred that he had acquired such new domicil in Lanesborough. To establish this, he offered evidence to prove, first, a residence de facto in Lanesborough on the first of May 1851, and secondly, that he was there with the intent of making it his" home or place of abode.

It was not difficult to prove that he was in Lanesborough before the first of May, that he came there with his horse and trunks, and made a contract for board and lodging. But the effect of these acts depended upon the intent and purpose with which they were done. If that intent and purpose were to work on the farm of Chase during the summer and autumn, and return to his father’s house and home the ensuing winter, the facts proved would avail the plaintiff nothing. Qualified by such intent and purpose, they were perfectly consistent with the intention of retaining his domicil in Cheshire; they would not only fail to show a change of domicil, but they would exclude the conclusion. The plaintiff must prove that he left Cheshire with the intent of abandoning his old domicil and of acquiring a new one. That intent is manifested by what he does, and by what he says when doing, and sometimes as significantly by what he omits to do or to say.

The plaintiff undertook to show, that before he actually went to Lanesborough to reside, he had the purpose of leaving Cheshire, and that he had a negotiation with Chase, with the view of going to live with him, and which finally resulted in his so doing. In this negotiation he stated that it was his purpose not to live with his father after his time was out in April. This negotiation, with the declaration of purpose and intent, which not so much accompanied, as made part of it, was a fact competent to be proved. Whether the negotiation was successful, whether it ripened into a contract or not, might affect the weight, but not the competency of the evidence. Such declarations are, within the strictest rule, part of the res gestee, qualifying and giving character to the principal thing done.

The sum of the whole matter simply is, that, to prove his intent to leave his old domicil, the plaintiff offered and was permitted to show that he had been in negotiation for a new one, with the avowed purpose of abandoning the old. It is open, ot course, to the defendants, to show that the whole thing is collusive and a sham ; but if real and in good faith, it furnishes the kind of evidence of which the case is, in its nature, susceptible, and which, uncontrolled, is satisfactory.

It was competent for the plaintiff, with a view to show that the purpose he had formed of abandoning his domicil in Cheshire had been carried into effect, to prove that his domicil still continued in Lanesborough, and to exclude ahy inference that he had gone there for a temporary object, and with the intent to return after that object should have been attained. To this end he might show that he was a highway surveyor in Lanesborough, or had engaged in any pursuit or calling indicating the design and purpose of making Lanesborough a place of permanent residence.

The only serious difficulty presented by the bill of exceptions grows out of the admission of the testimony of Luther H. Brown. It is important to observe in what way the question of its admission arose. The plaintiff offered to prove by Brown, who was one of the assessors of Cheshire in 1851, that in April of that year the plaintiff gave Brown notice that he was going to remove from Cheshire before the first of May. Upon objection made by the defendants, the evidence was rejected, inadvertently, perhaps, after the decision of this court in Kilburn v. Bennett, 3 Met. 199. Upon cross examination of the witness by the defendants, he was permitted to testify, not that the plaintiff did or did not give him such notice, but that he, the witness, did not, in a certain interview with the plaintiff, acknowledge that the plaintiff had given him notice that he was going to remove from Cheshire to Lanesborough. After a witness had been excluded from testifying to a fact, to permit him to testify what he had or had not said about the fact in the country, was certainly erroneous. The evidence was inadmissible, and was calculated to injure the plaintiff’s cause. To meet it, the plaintiff offered and was permitted to show that Brown was mistaken, in this statement, and that he did acknowledge, in the interview with the plaintiff, that the plaintiff had given him notice that he was going to move or change his residence from Cheshire to Lanesborough.

If this is all irregular, we do not see that the defendants have any just ground of complaint. They offered evidence to show, that one of the assessors did not make a certain declaration in the country. The plaintiff was permitted to offer evidence that he did. We are not to presume that the statement by the witnesses, that Brown had made such acknowledgment, was used as independent proof of the fact of such notice; and the result only is that evidence was inadvertently admitted, upon both sides, upon a matter unimportant and immaterial to the issue, We cannot disturb the verdict on this ground. The one error neutralizes the other. Exceptions overruled,.