Robbins v. Inhabitants of Townsend , 37 Mass. 345 ( 1838 )

Dewey J.

delivered the opinion of the Court. This action is upon St. 1834, c. 151, § 10 ; and to entitle the plaintiff to recover the sum demanded, it is incumbent on him to show, that he held the official character under which he claims to act, and that .the persons for whose support he demands compensation, had their legal settlement in Townsend.

It was admitted, that the persons supported had their legal settlement in Townsend, unless they had through William Searles, in the manner hereafter stated, acquired a settlement in Boston. The defendants claim to establish the set tlement of Searles in Boston by the twelfth mode provided in St. 1793, c. 34, § 2, being that of a residence for ten years, and payment of taxes for five of the ten years.

To prove the payment of taxes for five years, the defendants offered William Searles, whose testimony was objected to, on the ground, that it was incumbent on the defendants to show by the records of the city treasurer, the assessment of the taxes, and the payments made thereon, before they could resort to parol testimony for this purpose ; and the judge so ruled, but held also that the defendants would not be concluded by the city records, and that they might show, by parol evidence, that there was a mistake or omission in them.

This ruling seems, to us to have been correct. It was an essential part of the defendants’ case, to show an assessment of the taxes, and that could only be proved by the city tax-books or duly authenticated copies of them. It was in the discretion of the judge presiding at the trial, to prescribe the order in the introduction of the proof requisite to maintain the defence ; and in the exercise of that discretion he might properly require the evidence of an assessment of the taxes to precede the proposed parol testimony.

The defendants having proved an annual assessment of taxes on William Searles, from the year 1821 to the year 1831, and actual payment of the same entered upon the tax-books for the years 1821, 1822, 1823 and 1825, and having offered evidence tending to show his ability to pay the tax of 1824, requested the judge to instruct the jury, that a presumption arose from the payment of the tax of 1825, that the tax of 1824 had also been paid ; but the judge instructed the jury, that no such legal presumption existed in the case, but that it was a question of presumption arising upon the evidence, and if upon the whole evidence they believed that the tax for 1824 had been paid, they should find for the defendants.

The counsel for the defendants insists that the present case is analogous to that of landlord and tenant, where evidence by a receipt of payment of a subsequent quarter’s rent is considered prima facie evidence of payment of all former quarters. But we think it materially differs in the circumstances connected with it, and that if any presumption arose in the case, 't was one of fact to be found by the jury, and not one of law, to be declared by the court.

It is also objected, that the ruling of the judge was erroneous in refusing to instruct the jury, that if the city of Boston might by reasonable diligence have collected the tax of 1824 of Searles, they should find a verdict for the defendants. The ground of the objection is, that if the tax remained uncollected through the remissness of the officers of the city, the inhabitants of the city ought not to be relieved from the maintenance of Searles, as they would thus be benefited by reason of neglect of duty in their own agents.

The case of Wrentham v. Attleborough, 5 Mass. R. 4 33, cited by the counsel for the defendants, contains dicta strongly countenancing the doctrine, that an omission to tax for one oi more years an individual liable to be assessed, when that omission arose from inadvertence or negligence on the part of the assessors, could not avail the town whose officers had been thus remiss, and defeat the gaining a legal settlement under the provisions of this clause of the statute. No such adjudication has, however, taken place, nor was it necessary to decide that question in the case then under consideration. That, the residence of an individual in a town for ten years, and having taxable property five of those years, does not in all cases subject the town omitting to assess a tax, to the same liabilities in regard to a settlement, as would have been incurred by the actual assessment and collection of a tax, would seem to be properly inferred from the ruling of the Court in the case of Reading v. Tewksbury, 2 Pick. 535.

But the question now presented, is not as to the effect of an omission to assess a tax, but of negligence in the collection of a tax properly assessed. We think that the mere neglect to enforce the collection of a tax, which might by diligence have been collected, cannot have the same operation upon the question of the settlement of the person taxed, as the actual payment prescribed by the statute.

As to all the questions which have been raised upon the point of the settlement of William Searles, the Court are of opinion, that the instructions to the jury were correct, and that the verdict ought not to be disturbed.

In reference to another and distinct ground of defence, that of the appointment of the plaintiff as master of the bouse of correction, the evidence offered was clearly incompetent to establish that fact. The certificate of the city clerk read in evidence, was a certificate of a fact, and not a certified copy of the records. Upon that point the recent case of Oakes v. Hill, 14 Pick. 442, is decisive. The principle was settled in that case, that a clerk of a religious or municipal corporation may make copies of his records, and his certificate will be evidence of their verity ; but a clerk of such a corporation will not be allowed to certify facts, and his certificate is not to be received as evidence of such facts. To avoid any possible injustice to the rights of the defendants, in considering this point, the Court have assumed the ruling of the judge to have been of the import claimed by the defendants, although we apprehend, that there was some misapprehension at the trial as to the question intended to be raised. In the manner in which it is now presented in the argument and considered by the Court, the evidence was incompetent and ought not to have been admitted, and for this cause, a new trial must be granted. But there having been a full and legal trial on the merits as to the other parts of the case, and the question of the appointment of the plaintiff as master of the house of correction being entirely disconnected with the other questions raised, and one which in no way could have had any influence upon the finding of the jury upon those questions, the new trial is limited to this particular point. In cases like the present, substantial justice may be done without disturbing the verdict generally, by submitting to a new jury the question, in reference to which, evidence was erroneously admitted. Such a course has been sanctioned by this Court, in the cases of Winn v. Columbian Insurance Co. 12 Pick. 287, Sprague v. Bailey, decided at October term 1837, in Middlesex, and in several other cases within the recollection of the Court.

New trial ordered.