
    The Inhabitants of Charlemont versus The Inhabitants of Conway.
    Whether a town can at any time set up their own illegal proceedings, or those of their officers, in the assessment of a tax, after the tax has been paid, to defeat a settlement gained thereby, quare, But where so long a time had elapsed since the payment of the tax, that no claim for reimbursement could be sustained, it was held that they could not.
    Where the assessors assessed more than five per cent over and above the sum committed to them to assess, it was held, that the tax was not duly assessed within the meaning of St, 1793, c, 34, relative to gaining a settlement.
    Assumpsit to recover the amount of expenses incurred by the plaintiffs for the support of Dorothy Marsh, a pauper. The only question made at the trial, which was in the Common Pleas before Williams J., was whether the pauper had a legal settlement in the town of Conway.
    The pauper was the daughter of Abner Marsh, and derived her settlement from him. Abner, with his family, removed to Conway in March, 1797, and continued to reside there until August, 1823.
    He was taxed in Conway, for State, county and town taxes, five years during that period, namely, in 1797, 1798, 1800, 1802, and 1803, and he duly paid all his taxes for those years, except his State and county taxes for 1798, which have never been paid, though the collector demanded and endeavoured to collect the same. In assessing the State and county taxes for 1798, which were assessed separately from the town taxes, the assessors added to the sum to be assessed, a sum exceeding five per cent upon the amount thereof, and assessed the whole accordingly. The plaintiffs contended that this tax was not duly assessed, but was illegally assessed, and was therefore void ; and the judge being of this opinion, decided accordingly.
    The defendants then offered to prove that Marsh assented to the assessment, and had refused to pay the taxes solely on account of his poverty ; but the judge ruled that such supposed assent, if proved, would be immaterial, and refused to submit that question to the jury.
    The defendants then offered to show that all the State, county and town taxes above mentioned were also illegal, and therefore void; but the judge ruled, that the defendants, after having assessed and collected the taxes and received the benefit of them, and after an acquiescence in them by all parties for so long a time, could not be permitted to prove their illegality for the purpose of relieving themselves from their liability in this suit, and the evidence was accordingly rejected.
    The jury found a verdict for the plaintiffs, and the defendants filed exceptions to the opinions and directions of the judge.
    
      Sept. 23d.
    
      Billings and J. IV. Clark, for the defendants.
    Though the taxes of 1798 were illegal, they were duly assessed so far as regards the settlement of Abner Marsh. A tax may be illegal in many respects, and yet not be void. Dillingham v. Snow, 5 Mass. R. 558; Colman v. Anderson, 10 Mass. R. 105. The assessment in question was only a voidable act; of which the defendants and Marsh might have taken advantage, but the plaintiffs cannot, they being strangers. Bac. Abr. Void &c. F; Green v. Kemp, 13 Mass. R. 515; St. Nicholas v. St. Peter's, 2 Str. 1066. Any tax which is not so void as that an officer collecting it would not be protected, and which is assessed in due form, is “ duly assessed " within the meaning of St. 1793, c. 34, respecting paupers. Here the collector might have enforced payment of the State and county taxes, without being liable to an action.
    If the plaintiffs can take advantage of illegal proceedings in regard to the State and county taxes, the defendants likewise may avail themselves of any illegality as to the taxes which were paid. It is a mistake to suppose that the town assess the taxes ; it is the assessors. Their being elected by the town does not make them the agents of the town, any more than the appointment of a judicial officer by the governor makes him the agent of the governor.
    
      Bates and Maxwell, contra,
    
    insisted that the State and county taxes of 1798, were illegally assessed ; Libby v. Burnham, 15 Mass. R. 144; and therefore were not duly assessed, within the meaning of the statute of 1793. Marsh was under no obligation to pay them, and the non-payment of an illegal tax is not to prevent him from gaining a settlement. It is said that the plaintiffs are strangers and therefore cannot make the ob ection ; but their rights are derived through Abner Marsh, who was a party. These two towns are by operation of law made parties.
    The defendants then say that the taxes paid were illegal. There are two answers to this ; first, if they-could show that fact, it would not avail them, because it appears that Marsh was taxable and able to pay the taxes ; so that whether he were oi were not. taxed, would be immaterial; Wrentham v. Attleborough, 5 Mass. R. 433; Reading v. Tewksbury, 2 Pick. 535. But, secondly, the defendants shall not be allowed to take advantage of their own wrong. They made the assessment, and have received the benefit of the taxes.
    
      Billings, in reply,
    said that an omission to tax a person liable to be taxed, if not done fraudulently with a view to prevent his acquiring a settlement, would not operate against the town
    
      April term 1830
    
   Parker C. J.

drew up the opinion of the Court. A majority of the Court are of opinion, that the judgment of the Court of Common Pleas ought to be affirmed.

The case is brought within the provision of St. 1793, c. 34, which constitutes a residence of ten years, with a payment of all taxes which shall be duly assessed any five years within that time, a habitancy or settlement. The town tax for the year 179S was paid by the pauper’s father. The State and county taxes of that year were not ; but they W'ere not duly assessed, the assessors having exceeded their authority in adding to the sum required by the legislature more than five per cent. All the taxes which were duly assessed for the five years had been paid.

But the defendants proposed to prove that there was some illegality in all the taxes which had been paid, so as to avoid the effect of such payment in fixing the settlement. This was rejected by the Court of Common Pleas and we think rightly. It is near thirty years since the last of these taxes was assessed and paid. There has been no call for reimbursement, and none could be sustained at this period. It would be altogether unjust to allow the defendants, after having enjoyed the benefit of those taxes, which must have been intended to be properly granted and duly assessed, to set up the fault of the town or its officers, in avoidance of the legal settlement established thereby-

The situation of the plaintiff and defendant towns is different in this respect. The plaintiffs call for reimbursement of expenses incurred in the support of a pauper, whose father had lived in the defendant town twenty-five years, and who had paid taxes therein five years within that period. They are met by the objection, that a portion of the tax for one of those years had not been paid. This is answered by showing, that this portion the father of the pauper was never obliged to pay, it not being duly assessed. It is replied that the other taxes were either illegal or not duly assessed. To this it is a sufficient answer, that they were paid and had gone into the several treasuries, and could not be reclaimed ; which is quite equivalent to their having been duly paid, in regard to the object and purpose of the legislature in making this a ground of settlement.

It may be doubted, whether a town can, at any time, set up its own illegal proceedings in regard to taxes, or the misconduct of its officers, after the taxes have been paid, to defeat the settlement gained thereby. But after such a lapse of time as shuts out all claim for reimbursement, we think it clear they cannot.

Judgment of Court of Common Pleas affirmed. 
      
       See Southampton v. Easthampton, ante. 383
     