
    The Inhabitants of Southampton versus The Inhabitants of Easthampton.
    Tlie assessment of half a poll tax upon an individual, it seems, is illegal.
    Where a town voted in March to raise a sum of money for highways, and in Aprli the selectmen, being also assessors, handed to each surveyor of highways a paper directing him to repair certain highways and apportioning a certain sum upon individuals within his district, according to the valuation of the preceding year, and stating the rates at which labor upon the highway should be estimated, and individuals worked upon the highways without reference to the sums against their names respectively, the surveyor keeping an account of the work performed, it was held, that this was not a legal assessment of a highway tax ; so that labor performed by an individual to the amount of the sum set against his name, would have no effect towards giving him a settlement.
    Assumpsit to recover a sum of money expended by ihe plaintiffs in the support'of Noah Kentfield, a pauper.
    It was agreed that before 1810 the pauper had his settle ment in Easthampton, and that he had since resided ten years in Southampton, and the question was, whether he had paid “ all State, county, town or district taxes duly assessed on his poll or estate, for any five years ” within that time, so as to have gained a settlement in Southampton according to the twelfth mode in St. 1793, c. 34.
    Kentfield paid the taxes in Southampton for the years 1812, 1813, 1814 and 1815 ; but in 1815 his tax was for only half a poll.
    It appeared by the records of Southampton, that in March, 1816, the town voted to raise 300 dollars for the support of highways. In April following, Sheldon, Strong and Lyman, being selectmen and assessors, put into the hands of A. Searl, who was one of the surveyors of highways, a paper signed by them as selectmen, and directed to Searl, which was as follows : — “ Tax $ 23-87. Sir, You will repair the road from &c. Terms of labor, till October, 75 cents, in October 58, after that 41.
    
      Arunah Searl - - $1,17
    (The paper has a credit to Searl of $7,22.)
    Azariah Gladden ----- ,15
    Credit, Oct. by half day’s work - ,29
    Thomas Gladden ----- ,31
    Noah Kentfield, - - - ,17
    Credit, June, by part of half day - ,17.”
    The paper contained several other names, the total of the sums annexed to them amounting to $23.87. It was admitted that the credit to Kentfield was given correctly.
    It was agreed, if paroi evidence to this purpose was admis sible, that according to the usual course of proceeding adopted by Southampton, the sum of money voted at their annual March meeting for the support of highways was soon afterward apportioned by the selectmen, who were also assessors, according to the next preceding valuation, among such of the inhabitants as were supposed to be liable to be taxed, though not with any great care that the apportionment should be entirely accurate ; that papers similar to the one before described were by them put into the hands of the different surveyors, containing the names of the inhabitants supposed to be taxable within their respective districts, and the sum so apportioned to each of them ; that each person named therein worked upon the highways or not, as he pleased, and subject to the discretion of the surveyor, without much regard to the amount of his apportionment, the surveyors keeping an account of the work performed ; and that at about the close of the year a tax-bill was made out, including therein all sums of money raised by the town, as well for the support of highways as for other purposes ; when those persons who had thus labored upon the highways, or had other claims against the town, were allowed for their work and other claims in a geneial credit bill. The paper first mentioned was such an apportionment of the sum so voted for highways in 1816, and the general credit bill for 1816, bearing date March 10, 1817, contains the name of Kentfield, with an allowance of 17 cents. But neither did the general tax-bill of 1816, bearing the same date with the geneeral credit bill last mentioned and embracing all the moneys voted by the town in 1816, whether for highways or other purposes, contain any tax against Kentfield, nor was his name on the valuation of that year.
    " It was further agreed, that the collector of taxes for 1816, m the settlement of his tax-bill, had the benefit of all allowanees on the general credit bill for that year, and that the sum of 17 cents allowed to Kentfield was thus received by the collector from the town ; that he supposed he had paid it over to Kentfield, but not finding it receipted on the bill, he had recently, and since the present question has been raised, but without the knowledge or direction of the agents of the town, paid over the sum to Kentfield, with annual interest.
    The defendants were to be defaulted or the plaintiffs to be come nonsuit, according to the opinion of the Court.
    
      Bales and .Dewey, for the plaintiffs.
    The assessment of half of a poll tax in 1815 was illegal and void.
    
      Sept 21st
    
    The paper made out in April, 1816, was not a highway tax, and the work on the highway was not performed in reference to it as a tax. A voluntary payment of a sum not regularly taxed does not come within the statute of 1793, c. 34.
    But if it was a tax, as it was founded on the valuation of the preceding year, it is void considered as a tax for 1816. Nason v. Whitney, 1 Pick. 140. Being however voted and assessed before May, 1816, it was a tax for the year 1815.
    
      Strong and Forbes, for the defendants.
    A highway tax is not paid like other taxes; it is paid in labor. St. 1786, e. 81, § 3 ; St. 1796, c. 58, § 4. As the sum of 300 dollars was voted in 1816, it must be considered as a tax for that year. The St. 1786, c. 81, is silent as to the valuation upon which a highway tax is to be assessed. Towns may raise money for repairs of highways, at any meeting regularly warned, and the assessment here had reference correctly to the valuation of 1815.
    But the St. 1793, c. 34, in saying “ taxes duly assessed,” does not mean legally, but fitly assessed ; the propriety or fitness of which is recognised by the person against whom the tax is intended to be enforced. Here the fitness has been acquiesced in by the pauper, and the tax was paid by him.
    Besides, it is against public policy to allow towns to avail themselves of the fraud or incapacity of their officers. It was the intention of the assessors to make a regular highway tax, and they considered that it would be the same thing if they in-eluded the bill of expenses in the general tax-bill, instead of having a separate column for a highway tax; whereby they made the general tax illegal. It is not competent to the plaintiffs to say they made an assessment in 1817 embracing this highway tax as well as other town charges. If a man were assessed higher in the assessment of 1817, than in the paper given to the surveyor, he would be denied the privilege of paying his highway tax in labor.
    The plaintiffs had evidence of the pauper’s ability to pay the highway tax, for he actually paid it; and to omit his name in the tax-bill made out in 1817, was a legal fraud, which will not avail the plaintiffs. Wrentham v. Attleborough, 5 Mass. R. 430.
    
      Sept. 24th.
    
   Per Curiam.

The tax for 1815 is objected to, because it was only upon half a poll. It is said there cannot be a poll tax for less than a poll; and this seems to be reasonable, but as it is obvious that what is called an assessment in 1816 was illegal, it is not necessary to determine that point. The word tax in' the paper delivered to the surveyor is the only thing in it which would lead one to suspect it was meant for a tax. It was not founded on a valuation of 1816, and cannot be a legal tax for that year. It is said, however, that the plaintiffs are not to be permitted to show its illegality, as it was the act of their own officers. We need not decide that question, as we are satisfied this was not intended to be an assessment of a tax. It was merely an apportionment of a sum on individuals in the surveyor’s district according to the taxes of a former year, and they performed labor without reference to the sums set against their names, and had credit for it, and it was afterwards carried into the general credit bill with other claims against the town, and was allowed to the collector in the settlement of his tax-bill. The town never had the benefit of it. The pauper therefore has gained no settlement in Southampton by the payment of taxes.

The defendants say however, that as the pauper paid 17 cents, it was evidence of his ability to pay. But if he was liable at all, he should have been assessed for all the other taxes of 1816. And it is contended that the omission to tax him "was fraudulent in law. But as he was able the year before to pay only half "of a poll tax, there seems to be but a slight foundation for that suggestion. If there were a question of fraud, it should be tried by the jury ; but under the circumstances of the case we think there is no ground for a new trial. 
      
       See Waldron v Lee, 5 Pick. 323; Granger v. Parsons, 2 Pick. 3ÍÍ3.
     