Lebanon v. Plainfield , 40 N.H. 291 ( 1860 )

Bellows, J.

The book is admitted to be a book of records, although imperfect, belonging to the town of Plainfield, containing miscellaneous papers relating to town affairs. Among others it contained various records of tax lists between 1774 and 1799, which were bound in the volume without regard to the order of dates; and this contained all the records that could be found of any invoice or taxation prior to 1798. No objection seems to have been made to the book on the ground that it was not a record or proof of what it contained, so far as the fact so proved was admissible; and, if there had been such objection, it would not probably have availed the defendant, as it is admitted that they were records, although imperfect, and nothing is stated, we think, that authorizes the court to exclude them from the jury, as not competent to be considered. As to the weight to be given to them, that is for the jury to determine.

To prove a settlement of the pauper in Plainfield, by a residence, taxation for his poll, and payment of all taxes on his poll and estate for seven years in succession, the plaintiff town relies upon the years 1797 to 1803 inclusive ; and the records show such residence and taxation for the years 1798 to 1803 inclusive, and for what property the pauper was so taxed, and it was agreed that he paid those taxes. For the seventh year the plaintiff relies upon the year 1797, but as to that the records do not show a taxation, unless an undated list is found to be the list for that year.

The point, then, is, was the pauper taxed in 1797 ? For most of the time for many years prior to 1798 the record of taxes is wholly wanting. But the plaintiff was permitted to show, by the imperfect records produced, a taxation of the pauper in 1774, 1775, 1776, 1786 and 1787, and also that he was taxed for his poll, alone, one other year, the date of which did not appear. This was admitted, subject to exception, and the question is, whether it was rightly admitted. In deciding a question of this sort, the judge who tries the cause will properly, in the exercise of his discretion as to the materiality of evidence offered, take into consideration the remoteness of the time when the matters in question occurred, and, in the absence of regular record evidence, and of the testimony of living witnesses, he may properly admit evidence that, in respect to recent transactions, might- well be regarded as too remote to be material. And such, we apprehend, is the course of all courts of justice, taking care to exclude such matters of doubtful materiality as are calculated to mislead the jury.

In this case the records not showing explicitly that the pauper was taxed in 1797, and the loss of the records of that year being admitted, unless the undated list be for that year, the plaintiff is obliged to resort to secondary evidence. As bearing upon this point, then, would it have been competent to show that for many years immediately preceding 1797, without interruption, as well as for many years next following that date, he was taxed for his poll ? We think it would be, for it would tend to show that he was a resident of the town in 1797, was known to the assessors, and in a situation to be taxed. If portions of the records were missing, but it appeared that he was taxed in all those years when they were preserved, the legal tendency of the evidence would be the same, though the weight would be diminished. Again, upon the question whether the undated list was that of 1797 ; to show that the lists of all the other years were there, would be well nigh conclusive in the minds of a jury, and of course to show that most of the others were preserved, as, for example, all but two or four, would be matter proper for the consideration of the jury, diminishing in weight as the number of the missing years increased, but still having a legitimate bearing, more or less remote.

Then, as to the instructions of the court that they might consider whether or not the undated list was that of 1797, we think there was no error. The jury might well consider and weigh the circumstances disclosed bearing on this point — such .as the position of the list in the book; its internal evidence arising from a comparison of the invoice with those of other years; the number of other years that were missing, and the facts bearing directly on the point whether the pauper was or was not actually taxed that year.

It is true that this evidence may have been very remote, and so remote that the judge might properly have rejected it upon that ground ; but of that the judge who tried the cause can alone decide, he having before him the means of estimating its bearing in connection with the other evidence in the cause. Had the records not been offered, would it not have been a legitimate argument that there was no proof of residence or taxation at all prior to 1798 ? We think it would have been, and, under some circumstances, must have been effective; and, to meet this, the records were admissible.

The objection here is not that there was no evidence on which the jury could find a taxation in 1797; nor is there any objection to the instructions of the court on that point, and therefore it must be presumed that they were correct. It is not to be assumed that such a point was made, or that all the evidence bearing upon it was reported, but it is simply a question whether there was error or not in admitting this evidence.

The admission of the record of the “ county rate list,” with the other records, is, for the reasons we have suggested, no cause for setting aside the verdict; and, whether material or not, the court cannot see that the defendant was likely to be prejudiced.

The proof adduced from these records of the raising of money by Plainfield in the year 1797, was competent for the purpose of showing that there was occasion to make an assessment; and so in relation to the county tax of that year.

The exceptions are, therefore, overruled, and there must be Judgment upon the verdict.