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nent as to exclude the existence of an intention to make a domicil else-
where, as well as of an intention to return to H.

It being admitted that the defendant had gone to S to reside either tempo-
rarily or permanently, the question became wholly one of intent: was
it her intent to change her domicil from H f

To prove the character of her residence in 8 the defendant offered a witness
who testified that the defendant lived in the house of the witness in


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JANUARY, 1890. 269

City of Hartford v. Champion.

that place '' just as the rest of her familj did." On cross^xaroination
she was aslced whether she did not sometimes get her dinners at a res-
taurant. Held admissible, both for the purpose of finding what the
witness meant by the defendant's living at her house just as the rest of
her family did, and as bearing on the claim of the defendant that she
"WtLS making 8 her home.
The defendant produced receipts showing settlements for her board while
staying in 8j which were drawn by her, but did not show the sums
paid, and on cross-examination was asked why the receipts did not
state the amounts paid. Held admissible, as tending to show that the
receipts were intended to be deceptive and that she did not stay in j8 so
much time as she claimed.
A witness for the defendant testified as to her residence in 8 and as to how
often and under what circumstances he had seen her there. Held that
on cross-examination he might be asked about his observation of a per-

^ son who lived in the next house, to test his memory and his habit of

The defendant having neglected to return a sworn list of her taxable pro-
perty in Hf the assessors were by law authorized to make a list for her.
The list made by them contained the following item— '* Insurance
stocks, 181,763." Held not to be insufficient by reason of its not spec-
ifying the different insurance stocks.
A statute passed in 1883 provided that ten per cent might be added by the
assessors to the lists made by them for persons neglecting to make and
return a sworn list, and for the second year's neglect twenty percent,
and thirty per cent for the third year. This statute was repealed in
1885, and the addition to be made to the lists in such cases limited to

I ten per cent. Held not to affect additions of twenty and thirty per

' cent made by the assessors to lists in 1883 and 1884, for the taxes upon

which suit was brought after the repeal of the statute.
It is the duty of the court to give the jury such instructions as are correct

I in law, adapted to the issue, and sufficient for their guidance in the

case before them. If this is done it is immaterial that the instructions

I asked for are not given.

[Argued NoYember 13th— decided December 30th 1889.]

Action to recover taxes claimed to be due to the plaintiff
city f i-oni the defendant ; brought to the Superior Court in
Hartford County, and tried to the jury before F. B. HoUU J^
Verdict for the plaintiff, and appeal by the defendant for
error in the rulings and charge of the judge and in the omis-
sion to charge as requested. The case is fully stated in the

A. P. Hyde and 0. H. Briscoe^ with whom was J. P. -4n-
drews, for the appellant.


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270 JANUARY, 1890.

City of Hartford v. Champion.

W. F. ffenney, with whom was J. H. Brocklesby^ for the

Andrews, C. J, The defendant is an elderly lady of
large wealth and never married. She had lived in the city*
of Hartford quite, a number of years prior to 1882 with an
only brother, an old man, a bachelor, in feeble health, and
who appears to have been her only near relative living.
During these years she paid taxes in Hartford. In the year
1882 she did not return any list of her taxable property to
the assessors, and thereupon the assessors filled out a list for
her, putting therein all the property they had reason to be-
lieve was owned by her liable to taxation at its actual valu-
ation, and adding thereto ten per cent of such valuation. In
the year 1883, upon a like omission by her to return a list,
the assessors again filled out a list for her and added thereto
twenty per cent ; and again in 1884, and added thirty per
cent; and again in 1886. Taxes were laid on these several
assessments, to recover which this suit was brought, pur-
suant to section 3901 of the General Statutes. The case
was tried to a jury and the plaintiff had a verdict. The de-
fendant has appealed.

For the purpose of proving the tax assessed and laid for
the year 1884, the plaintiff offered the list for that year made
out by the assessors as follows :

" Taxable list of Julia Champion of Hartford for 1884 :

Insurance stocks $81,768.

30 per cent additional for neglecting to make
out sworn list 124,528,"

To this the defendant objected, because the insurance
stocks named in the list were not itemized so as to indicate
the various companies in which they were held, and because
the statute authorizing the addition of thirty per cent was
repealed. The court overruled the objections and admitted
the list.

The ground of the first objection is fully removed by the
luling of the court in the case of Citi/ of Hartford v. Cham-
pion^ 54 Conn., 436. The assessoi-s performed their duty


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JANUARY, 1890. 271

City of Hartford v. Champion.

and made the addition prior to the Slst day of December,
1884. At that time the addition was lawful. The repeal-
ing statute invoked by the defendant was not passed until
March, 1885, and did not take effect till the first day of July
of that y^ar. It had no retroactive effect. There was no
error in the ruling.

The main contention before the jury was, whether or not
the defendant, on the first day of October in the years 1882,
1883, 1884 and 1885, resided in the city of Hartford, so as
to be liable to pay taxes there. The defendant claimed that
in the spring of 1882 she removed from Hartford with the
intention of not returning to reside there, and took up her
residence in the city of Springfield, Massachusetts, where
she continued to reside in boarding houses until the spring
of 1883, when she removed to Suffield, Connecticut, where
she has ever since resided. It appeared in the evidence
that the defendant had passed some portions of her time
during these years in Springfield and in SufBeld, and that
she had bought a house in the latter town. The plaintiff
claimed that these absences from Hartford were not had
with a bond fide intention on the part of the defendant to
change her residence; but that whatever absences from
Hartford on her part were proved, were merely temporaiy
absences, arranged for the purpose of creating the appear-
ance of a residence elsewhere which did not in fact exist,
and giving color to her claim that she had ceased to reside
in Hartford. Many witnesses were examined by both sides
as to the fact of these absences, the circumstances attend-
ing them, and the length of her stay ; and also as to the
length of her abiding in Hartford and the circumstances of
it, the character of her residence there, and generally as to
her habits and mode of life and her family relations and

Among other witnesses the defendant called Mrs. Porter
King, who testified that the defendant had lived at her
house in Springfield just the same as the rest of her, (the
witness's,) family. On cross-examination counsel for the
plaintiff asked this witness if she knew where the defend-


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272 JANUARY, 1890.

City of Hartford v. Champion.

ant got her meals while she was staying at the witnesses
house, and if she did not sometimes get her dinners at the
depot restaurant. To these inquiries the defendant's coun-
sel objected, but the court overruled the objection and
admitted them. We think these questions clearly admis-
sible. It certainly was proper to find out what the witness
meant when she stated that the defendant had lived at her
house just the same as the rest of her family. The defend-
ant claimed to be residing in Springfield, making it her
home there at the boarding house of Mrs. King. The fact
of getting dinners or other meals at the depot restaurant
would, if proved, have a very significant bearing on the
correctness of that claim. A person temporarily in Spring-
field would be very likely to get a meal at the depot restau-
rant, while a person residing there and having a home at a
boarding house would not be likely to do so.

In her own testimony in chief the defendant exhibited
and testified concerning certain receipts for her board and
room while she was in Springfield. On cross-examination
she was asked : — " Will you tell me why the amounts that
were paid do not appear in any of these receipts?" and
various other questions of like nature ; to all of which coun-
sel for the defendant objected, but the court admitted them.
There was no error in this. The plaintiff claimed that
these receipts had been prepared by the defendant to make
it appear that she had boarded in Springfield much longer
than was the real fact. They had the right to show this if
they could.

The defendant, in connection with her testimony in chief,
introduced notices which she had received while in Spring-
field from certain insurance companies in Hartford, to the
effect that a non-resident tax had been deducted before
transmitting to her the dividends on her stocks. She was
asked on cross-examination if she had not received similar
notices from Massachusetts companies. She answered tlat
she did not think she ever had. The defendant's counsel
objected to this question for the reason that it assumed a fact
which had not been proved ; that is, that the law in


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JANUARY, 1890. 273

City of Hartford v. Champion.

chusetts in this respect was like the law of Connecticut.
The court admitted the question. We are not able to see
how the defendant was hai-med by this question in any
aspect of it. If the law of Massachusetts is the same as
the law of Connecticut, theh the fact that she had received
no such notice from Massachusetts corporations would tend
to support her claim that she resided in that state. If the
law in that state is different from ours, as the defendant
claims, then, as she answered that she had not received any
such notice, she was not harmed. There was no fact from
which any such inference could be made either way.

Nelson King, a witness in behalf of the defendant, testi-
fied as to her residence in Suffield, and as to how often and
under what circumstances he had seen her there. He was
asked on cross-examination respecting a Mr. Burbank, who
lived in the house next to the one owned by the defendant.
We think these questions were proper to test the memory of
the witness, and to test his habits of observation as well as
his accuracy.

During the trial counsel for the defendant presented to
the court two series of requests for instructions to the jury.
These, while not precisely alike, cover the same ground.
The coui-t apparently regarded them as interchangeable. In
his charge the judge read to the jury the first request of the
first series, and instructed them that it was the law. In re-
spect to the other he said : " I think in looking over these
requests and comparing them with what I have intended to
say to the jury, that it is not necessary for me to read them,
as I have said, not so much questioning the law as because
I believe I have covered the subjects embraced in them al-
ready." The court did not specifically refer to the second
series of requests at all. In her reasons of appeal the de-
fendant says : " The court erred in not charging the jury as
requested by the defendant as follows:" and then recites
the second series of requests at length, six in number. An-
other reason of appeal is " that the court erred in charging
as follows:" and then recites two printed pages from the
charge, taken not consecutively but from different parts of
Vol. Lvni. — 18


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274 JANUARY, 1890.

City of Hartford v. Champion.

it. The plaintiff's counsel strenuously urge that these rea-
sons of appeal ought not to be considered by this court for
the reason that they are not within the rule which requires
that a special assignment of each particular error shall be
made. Whatever force there is in this claim, and there is
certainly some, we have not thought it sufiBcient to require
us to disregard these reasons of appeal. In tlieir brief the
defendant's counsel substantially bring these two assign-
ments together and point out the particular error of which
they complain to be, that from the omission to charge as re-
quested and from the charge actually given the jury were
led to understand that the defendant would continue to be
a resident in Hartford till she had established such a perma-
nent home^ either in Springfield or SufBeld, as excluded the
possibility of a future change.

The general question for the jury was, whether or not the
defendaut had changed her domicil from Hartford to Spring-
field or to SuflSeld. She claimed to have removed from
Hartford to Springfield in the spring of 1882, to have lived
there about a year, and then to have removed to Suffield,
where she had ever since resided. It was admitted that she
had passed some portion of the time during each of these
years in Springfield and in SuflBeld; so that the general
question of domicil was narrowed to one of intent. With
what intent did the defendant go from Hai-tford to Spring-
field and remain there for such time as she did? Was it
with such an intent as would effect a change of her domicil
from Hartford? The case turned upon the answer that the
jury should give to the question. Many witnesses were ex-
amined. The plaintiff on the one hand claimed to have
proved that the defendant went to Springfield and to Suffield
without any real bond fide intent to change her residence at
all; that she was in those places for temporary purposes
merely, and not for the purpose of making her domicil there,
but with the intent on her part all the time to return to
Hartford. On the other hand the defendant claimed to have
proved that she did intend to remove from Hartford, and


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JANUARY, 1890. 275

City of Hartford v. Champion.

did intend to make her domicil in Springfield and in Suffield,
and that she did not intend to return to Hartford.

It is confessedly difficult to define domicil. In this case
it is not necessary to attempt it. Prof. Wharton says,
(Conflict of Laws, § 21 :) " Domicil is a residence acquired
as a final home. To constitute it there must be — (1) resi-
dence, actual or inchoate ; (2) the non-existence of any in-
tention to make a domicil elsewhere." This is a sufficiently
accurate definition for the purposes of this case. It corre-
sponds essentially with the definition given by other writers,
and in numerous decisions of this and other coui*ts. Judge
Story, (Conflict of Laws, § 41,) says : " Two things then
must concur to constitute domicil ; first, residence, and sec-
ondly, the intention of making it the home of the party.* * *
It is the fact coupled with the intention of remaining there."
In Salem v. Lyme^ 29 Conn., 79, Judge Hinman in the opin-
ion says : ^' But domicil is but the established, fixed, perma-
nent, and may therefore be said to be the ordinary, dwelling
place or place of residence of a party, as distinguished from
his temporary and transient though actual place of resi-
dence." And on page 80, he adds: "When a domicil is
once acquired by a residence for an indefinite time, with an
intention to continue the residence indefinitely, the statute
applies." Easterly v. Goodwin^ 86 Conn., 286 ; First Nat.
Bank v. Barlow^ id., 357 ; Clinton v. Westbrook^ 38 id., 12 ;
Thayer v. Boston^ 124 Mass., 145. See also Jacob's Law of
Domicil, §§ 72, 160, 161, 159, where a great many cases are
cited. Also Haldane v. Eckfordy L. R., 8 Equity, 631 ; Brur
nel V. Brunei, 12 id., 298 ; Douglas v. Douglas^ id., 617.

When once it is ascertained what is necessary to constitute
one's domicil in any place, it is easy to point out what must
be done in order to effect a change of that person's domicil
to another place. All the conditions which are required to
constitute the domicil in the given place must be transferred
to the new place. When this is done the domicil is changed ;
and until this is done the domicil is not changed. The old
one is not abandoned, the new one is not acquired. This, of
course, excludes the existence of an intention to return to


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276 JANUARY, 1890.

City of Hartford v. Champion.

the former place ; for the existence of an intention to return
is inconsistent with the idea that the former home is aban-
doned. Clinton v. Westbrook^ 38 Conn., 12 ; Sean v. Boston^
1 Met., 250 ; Greene v. Windham^ 13 Maine, 225 ; WUbraham
V. Ludlow^ 99 Mass., 678. It was essential to the defend-
ant's case that she should prove a residence in Springfield
or in Suffield so permanent as to exclude the existence of an
intention to make a domicil elsewhere, and so permanent as
to exclude an existing intention to return to Hartford. If
she had not done this she had not shown any domicil in
either of those towns. If she had not done this she had not
shown any abandonment of her domicil in Hartford, and her
stay in Springfield or in Suffield was but a mere temporary
sojourn there, and not a domicil at all.

In every case it is the duty of the court to give the jury
such instructions as are correct in law, as are adapted to the
issue, and as are sufficient for their guidance in the case be-
fore them. If this is done it is immaterial that the instruc-
tions asked for are not given. In the present case, upon the
evidence and the claims of the parties, it was incumbent on
the trial judge to instruct the jury as to what constituted
domicil; what it was when contrasted with a temporary
place of abode; what it was necessary for the defendant to
prove in order to show an abandonment by her of her old
domicil in Hartford ; and what to show that she had acquired
a new one in Springfield or in Suffield. Upon a careful
reading of the whole charge we think this was done fairly,
fully, and according to law.

Portions of the charge are complained of by the defendant
for the reason, as she says, that the jury were led therefrom
to believe that a domicil could not be acquired bv her in
Springfield or in Suffield unless she showed that she had no
intention of ever removing from the place. We think this
objection is without foundation. The language used was
applicable to the conflicting claims made in the case ; on the
one side a residence claimed to be permanent enough to be
a domicil, and on the other side a residence said to be so
temporary as not to constitute one. It was the duty of the


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JANUARY, 1890. 277

Town of Canton v. Town of Burlington.

court to point out the distinction between these claims ; and
we see nothing in what was said in the portions objected to,
when read in connection with the whole charge, calculated
to mislead the ju^3^
There is no error in the judgment appealed from.

In this opinion the other judges concurred.

The Town of Canton v%. The Town of Burlington.

Hartford Dist, Oct T., 1889. Andrews, C. J., Cabpbnteb, Pabdeb,
Looins and Seyhoub, Js.

By section third of the act of 1878, (now section 8311 of Gen. Statutes,) all
persona needing relief, who have no settlement in any town in this
state, are state paupers, and shall he provided for hy the state comp-
troller for six months after they come into this state; and by section
twenty-first of the statute, shall, after the period of six months provid-
ed for iu the act, be sent back to the town where tliey resided when
they applied |or relief, and such town shall be chargeable for their sup-
port until they shall have gained a settlement in some other town ; pro-
vided such paupers shall have had a residence of six months or more in
8«ich town when they applied for relief. By the decision in Marlbor-
ovgh V. Chatham, 50 Conn., 554, the six months during which the
l>«iuper was entitled to help from the state were held to be the first six
xrmonths of his pauperism and not of his residence in the state. An act
S>^A8ed in 1885 provided that they should be the first six months of his
^^'^^^idence. In a suit by the plaintiff town against the defendant town
^or supplies furnished to a pauper claimed to be chargeable to the de-
^^ndant, the plaintiff offered evidence tending to prove that the pauper,
'^viio had no settlement in any town, but had lived more than six months
^^^ the defendant town, became needy in 1884, and was for a year or
^**::fc.ore thereafter supported by that town at the house of a friend within
'^'^>.« plaintiff town, under an arrangement made by the selectmen of the
^^^sfendant town, and that in 1888, the pauper needing further aid, which
^-^^« selectmen of the defendant town refused to furnish, the plaintiff
''-O'wn, in which he had continued to reside, furnished him aid. The
X>l^intiff was nonsuited by the court. Held, in setting aside the non-

^^**^t the pauper was a state pauper.

"^^■^t his status was fixed by the statute in force when he first applied
^o*- relief, and was not affected by the act of 1885.


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278 JANUARY, 1890.

Town of Canton o. Town of Burlington.

S. That the defendant town would, upon the facts claimed, be chargeable
with his support.

A nonsuit should not be granted where a plaintiff has introduced substan-
tial evidence in support of his claim, and where the law applicable to
the facts as claimed and supported by such evidence, is favorable to the

[Argued November 12th— decided December Idth, 1889.]

Action to recover for supplies furnished to a pauper
claimed to be chargeable to the defendant town ; brought,
by appeal from the judgment of a justice of the peace, to the
Court of Common Pleas of Hartford County. The defendant
demurred to a portion of the second count of the complaint,
and the demurrer was sustained. A general denial was then
filed to the rest of the complaint, and the case was tried to
the court before White^ J. After the plaintiff had intro-
duced its evidence and rested, the defendant moved for a
nonsuit, which was granted. A motion to set aside the
nonsuit having been denied, the plaintiff appealed to this
court. The case is sufficiently stated in the opinion.

0. JET. Briscoe and J. P. Andrews^ for the appellant.
Jl J". Jennings^ for the appellee.

Seymour, J. This is an appeal from the judgment of the
Court of Common Pleas in Hartford County in a suit brought
to recover for the care and support of Francis Naylan, a

In that court the defendant demurred to certain paragraphs
of the complaint, and the court sustained the demurrer.
The plaintiff then introduced its testimony, which is set out
in the record, and rested its case. Thereupon the defendant
moved for judgment as in case of nonsuit; which motion
was allowed, and the subsequent motion of the plaintiff to
set aside the judgment of nonsuit was overruled.

In the argument before this court counsel addressed them-
selves mainly to the questions relating to the nonsuit, and,
inasmuch as the decision of those will simplify the discussion
of the other questions, we will dispose of them first.


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JANUARY, 1890. 279

Town of Canton c. Town of Burlington.

By our statute a court may grant motions for judgment
as in case of nonsuit if, in its opinion, the plaintiff shall
have failed to make out a primd facie case. Gen. Statutes,
§ 1109. In Nduffatuck JR. E. Co. v. Waterhury Button Co.^
24 Conn., 468, the court, in sustaining a judgment of non-
suit, said : — " If all the facts claimed to be proved by the
evidence of the plaintiff cannot, if time, make 2i primd facie
case for him, it would be worse than idle to proceed further
with the trial. * * * If the court comes to a wrong decision
there may be an appeal to the Supreme Court to con*ect the
error, and beyond this there is no relief- known to the law.
The statute, as well as the common law, requires the plaint-
iff to introduge evidence which fairly tends to establish a
primd facie case in his favor."

In Booth V. Sart^ 43 Conn., 480, the court says : — " It is
manifest that the plaintiff testified to facts sufficient, if un-

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 25 of 60)