Fulham v. Howe

• Citation: 14 A. 652,60 Vt. 351
• Parties: VOLNEY S. FULHAM v. LESTER C. HOWE
• Decision Date: 10 July 1888
• Court: Vermont Supreme Court

14 A. 652

60 Vt. 351

VOLNEY S. FULHAM v. LESTER C. HOWE

Supreme Court of Vermont

July 10, 1888

FEBRUARY TERM, 1888 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

REPLEVIN. Plea, general issue, with notice that defendant would justify under a tax-bill and warrant directed to him as collector of taxes of the town of Ludlow. Trial by jury, December Term, 1887, ROYCE, Ch. J., presiding. Verdict for the defendant.

Judgment reversed and cause remanded.

W. E. Johnson and V. S. Fulham for the plaintiff.

Present: ROSS, VEAZEY, TAFT and TYLER, JJ.

OPINION

VEAZEY

The exceptions are numbered in the bill of exceptions, and are taken up and numbered in the same order in this opinion.

I. If there was any error in excluding the testimony of Harpin, it is not available to the plaintiff by reason of the verdict for the defendant. Frary v. Gusha, 59 Vt. 257.

II. Public Acts, No. 3, of 1884, entitled, "An act relating to the grand list," provides, section 3, that the number of inhabitants of a town or city, for the purposes of this act, shall be deemed to be the number of inhabitants as returned by the United States census last completed before the making of the list.

The population of Ludlow in 1880 was a material fact to be proved. We hold that the printed Compendium of the 10th Census was legal evidence for this purpose. The book was compiled pursuant to an Act of Congress, and was printed at the government printing office at Washington. In Watkins v. Holman, 41 U.S. 25 (Bk. 41 1. ed.), it was held that a volume of state papers showing the report of certain commissioners under an Act of Congress confirming the title in question, was admissible in evidence. It was put on the same ground as Journals of Congress and of state legislatures, and reports sanctioned and published by authority. As to the volume there in question the court said: "Now this original report, duly authenticated by the Treasury Department, to which it was made, would be evidence, and it is evidence in the published volume. The very highest authenticity attaches to these state papers published under the sanction of Congress." To same effect is Bryan v. Forsyth, 19 HOW 334, and other cases.

III. The listers of the town assessed the plaintiff $ 15,000, under the authority of Act No. 2, sec. 17, of 1882, which contains this clause, viz.: "And if the sum obtained by doubling is, in the opinion of the listers, less than the amount of the taxable property of such person or corporation, they shall further assess such person or corporation for a sum which will, in their judgment, make up such amount."

The testimony of Mayo was offered for the purpose of attacking the judgment of the listers in making that assessment, the claim now being that the listers had no evidence upon which to base a judgment. The plaintiff admits, and even claims, that the listers acted judicially, and does not deny but that they were acting within the scope of their authority, but insists upon the right to upset their judicial act in this collateral suit.

We think this claim is against the settled rules of law. A judgment can be impeached only by a proper proceeding bearing directly upon the judgment itself to vacate and set it aside. Porter v. Gile, 47 Vt. 620.

When it is admitted, as it seems to us it must be under the terms of this statute, that the listers act judicially in making such further assessment, then the ordinary rules as to judgments must follow. Fuller v. Gould, 20 Vt. 643. But the aggrieved party in a case like this is not without remedy. He has notice of the assessment, and may appear before the listers to have his list corrected--section 21; and may appeal from their decision to the board of civil authority, and there be heard and have further corrections made--section 22. But there is no further statutory provision for relief. Resort to the common law courts can be had only according to the rules of law that pertain to the practice of those courts.

We hold that the ruling of the court excluding the testimony of Mayo was correct.

IV. The inventory of the plaintiff, and his affidavit which he used before the listers, were properly rejected on the ground that declarations of a party in his own favor are not admissible except as a part of the res gestae.

V. A person's intention as to where he will have his legal residence has important bearing in determining its location. But his intention as to whether he would engage in business in a particular place would not tend to show what his intention was as to making that the place of his legal residence. This is the only ground now claimed for showing what the plaintiff's intention was in respect to engaging in business in Ludlow. We think it was properly excluded. It was an attempt to show what his intention was in a material respect, by offering to show what it was in an immaterial respect.

VI. Under point six the bill of exceptions is so meagre that a discussion of the ruling could not be of any value in another trial. It is obvious that the admissibility of testimony of the character offered would depend largely upon circumstances. It cannot be said that it would be inadmissible in every case. In this case it was admitted but its bearing restricted. There is not enough detailed to show that the restriction was not warranted.

VII. The plaintiff's offer to show that he registered and voted in New York in the fall of 1886, standing alone, should have been rejected; but the offer following in the clause in parenthesis, if proved, would have made the fact of registering and voting admissible, and so we think the offer as a whole as it stands in the exceptions was improperly rejected. Mitchell v. United States, 21 Wall. 350. This is so plain that it hardly warrants discussion, and indeed...