City of Boston v. Inhabitants of Weymouth , 58 Mass. 538 ( 1849 )

Dewey, J.

It is agreed that the settlement of Nathaniel Pittee, the ancestor of the paupers in question, was formerly in Weymouth, and that this must fix their settlement, unless the ancestor afterwards acquired a new settlement in the town of Hingham. A previous settlement in Weymouth being admitted, the burden is on the defendants to show a change of settlement.

The settlement in Hingham is attempted to be established under the twelfth mode provided in the statute of 1793, c. 34, § 2, by residing in a town ten years consecutively, and paying all state, county and town taxes assessed therein on the party for any five years during that time. The defendants attempt to show the payment of such taxes annually from the year 1794 to the year 1798 inclusive. But the question of payment arises more particularly as to the tax of 1798. The defendants exhibit an original document, purporting to be an assessment of taxes for that year upon Nathaniel Pittee of $4-03, which makes a prima facie case of an- assessment of such a tax. The next inquiry is, has the tax thus assessed been paid ? Does the production of the assessment of the tax of 1798, and a similar assessment for several previous years, furnish competent evidence of the payment of such tax ? It is argued, on behalf of the defendants, that this must be so held; otherwise such payments never could be established, where the transactions were ancient. If this were so, it would by no means follow, that we should sanction the sufficiency of such evidence, to sustain the burden of showing a tax not only duly assessed but also duly paid. But we think, that where the original tax bill can be produced and shown to have been in the hands of a collector, some further additional facts are usually apparent upon the face of the bill, in the nature of memoranda or signs, in dicating the payment of such as are actually paid. We are not prepared to say, that the mere production of an assessment roll, or tax bill, although purporting to have been made more than fifty years since, unaccompanied with any proof beyond the mere assessment, raises any presumption of the, payment of the tax of any particular individual whose name is borne on that roll. It is true, that the great majority of persons pay the taxes assessed upon them; but there are at all times, and upon every assessment roll, the names of persons who do not pay the taxes assessed to them, by reason of poverty, or for some other cause. This would be quite too loose and unsatisfactory a species of evidence to rely upon to establish the fact of actual payment, which is required here.

But the present case does not demand of us any expression of opinion upon this isolated fact of a tax upon Nathaniel Pittee, inasmuch as the plaintiffs have introduced evidence tending to show that the tax of 1798 was not in fact paid. This leads us to the question raised by the defendants as to the competency of the particular species of evidence offered by the plaintiffs upon that point.

1. As to the book purporting to be the selectmen’s book, was this competent evidence ? Upon inspecting this book, it purports to be “ the selectmen’s book of accounts with the treasury of the town of Hingham.” The selectmen were the agents of the town in keeping their accounts with their treasurer. The proposed evidence is an entry upon this book crediting the town treasurer, “ by an order in favor of Moses Whiton, collector, for discount of Nathaniel Pittee’s taxes for 1798, $3-03.” This evidence was, in our opinion, competent. It would be so, as containing an entry on the books of the town, adverse to the interest of the town, as this credit to their treasurer would be. This being also an ancient transaction, and the book being duly shown to have come from the custody of the town by their agents, the selectmen, who also acted in the capacity of assessors in the year this entry was made, the entry is evidence proper to be considered in the case. This evidence tends to show, that the selectmen, acting as assessors, had abated in part the tax assessed upon Nathaniel Pittee for the year 1798, and that the same was not paid by him, or by any one on his behalf. The assessment roll contains on its face marks and erasures confirmatory of and tending to establish the fact, that this tax was not paid. Of the whole amount of $4-03, it thus appears that $3-03 was abated. This leaves $1, which is supposed to be the amount of a dog tax, assessed upon such of the inhabitants as were owners of dogs, under the provisions of the statute of 1797, c. 53, but which was repealed by the statute of 1798, c. 54. The statute authorizing the tax on dogs was in force on the 1st of May, 1798, when this tax was assessed. But such dog tax, if assessed upon Nathaniel Pittee, in May, 1798, and subsequently paid by him, could not have any effect in establishing his settlement in Hingham By the sixth section of the act of 1797, c. 53, it is in direct terms provided, that such assessment of a dog tax, and the payment thereof, by the person thus assessed, shall not affect the settlement of such person, as a pauper. The abatement of all but the dog tax in 1798, and the omission to tax Pittee after 1798, tend to show, that the tax of 1798 was not paid, and satisfactorily rebut any presumption which might be supposed to arise from the mere proof of an assessment of a tax, if such assessment would authorize any such presumption of payment of a tax. The real question however is as to the result of all the evidence upon this point of the payment of the tax of 1798, remembering that the defendants have the burden of proof. Looting at all the evidence, and drawing all proper inferences therefrom, in our opinion, the evidence is insufficient to establish the payment of the tax of 1798, by Nathaniel Pittee. Such being the case, the defendants fail to show a settlement of the pauper in Hingham. The result is, therefore, that judgment must be entered for the nlaintiffs.