Kilburn v. Bennett

Wilde, J.

The principal question submitted in this case is, whether the evidence, offered by the defendant at the trial, was rightly rejected. In order to establish the fact that the defendant was not an inhabitant of the town of Groton on the 1st of May 1839, the year when the tax demanded was assessed, he proved that on the 27th of April of that year he went to Tyngsborough, to the house of Z. Bennett, his brother, where he remained some days after the 1st of May ; and for the purpose of showing with wr.at intent he removed to Tyngsborougb, he offered to prove that about three weeks before his removal, he told S. Shattuck, in whose house he resided, that he should .eave Groton before the 1st of May, and move with his family to Tyngsborougb, to reside with his brother, and make his house a home until he went to Illinois. The court held that this, being the mere declaration of the defendant, was not competent evidence in his favor, and it was rejected. The general rule undoubtedly is, that a party cannot give in evidence his own declarations in his favor, unless they accompany some act, and are a part of the res gesta. But it appears to us that the declarations offered to be proved are within the qualification of the rule. They were made in the ordinary course of business, and in relation to the defendant’s removal ; and they were made to the owner of the house in which he was at the time residing. This giving notice of his intended removal is to be considered an act, which he might prove in any case in which it became material ; and if so, all that he said, explanatory of his intention in relation to his removal, seems to us to be admissible in evidence.

This opinion fully coincides with the decision in the case of Thorndike v. City of Boston, 1 Met. 242. In that case, it was held that a letter from the plaintiff to his agent, written after he had left Boston, but before he had any knowledge of a tax having been assessed upon him — in which he expressed his intention not to return to Boston — was admissible. So his declarations, made about the time of his departure from Boston, expressing the same intention, were admitted without exception. That case we think was decided on correct principles, and is decisive of the present question.

Another exception was taken to the ruling of the court, upon which it is proper to express an opinion, although on a new trial it may not be of much importance. The court ruled, and so instructed the jury, that as it was admitted that before the tax was assessed, the defendant was an inhabitant of Groton, .the burden of proof was on him to prove that he had, before the 1st of May, changed his domicil. This ruling and instruction were clearly right; because the defendant, having once acquired a domicil, it must continue until it is abandoned. It was not incumbent on the plaintiff to prove that the defendant was in Groton on the 1st of May, for if he had left before, animo reserlendi, he would still have been liable«to taxation.

New trial granted.