
    The Inhabitants of Attleborough versus The Inhabitants of Middleborough.
    On the question between two towns, whether a pauper has acquired a settlement in one of them by a residence there of ten years and payment of all taxes for any five years within that period, the fact that a highway tax assessed on him one year was. not included in his tax bill of the ensuing year, raises a presumption that it was paid; but this presumption may be rebutted by evidence to the contrary.
    The burden of proof as to the fact of payment of such highway tax, is upon the party alleging that a settlement was acquired in the mode above mentioned.
    Assumpsit for expenses incurred by the plaintiffs in relieving and supporting Luther Eaton, a pauper.
    At the trial, before Morton J., the settlement of the pauper was admitted to have been originally in Middleborough ; but the defendants undertook to prove that he had acquired a settlement in Attleborough by virtue of a residence there during the term of ten years, and the payment of all taxes assessed upon him for five years of that period.
    It was admitted that the State, county and town taxes assessed upon Eaton for the year 1824, (one of the five years,) were paid ; and it was proved that a highway tax was assessed upon him in that year.
    The bill committed to the surveyor was produced, upon which there appeared no evidence of the payment of this tax ; and the surveyor testified that it was never paid to him.
    The defendants proved that the amount of this tax was not put into the next assessment for the town tax ; and they thereupon contended that the burden of proof was upon the plaintiffs to show that the tax was not paid.
    The jury were instructed, that as the amount of the highway tax was not carried to the next year’s assessment, the legal presumption was that it was paid ; but that this presumption might be repelled by evidence ; that they would consider the evidence in relation to this point, and if the defendants had failed, upon the whole, to satisfy them beyond a reasonable doubt that the tax was paid, they must find for .the plaintiffs.
    The verdict was for the plaintiffs. If the above direction to the jury was incorrect, a new trial was to be granted.
    
      Oct. 29th.
    
    
      Warren and Stevens, for the defendants.
    
      W. Baylies and Cobb, for the plaintiffs.
    
      Oct. 30 th
    
   Shaw C. J.

delivered the opinion of the Court. It was

admitted in this case, that the pauper once had his settlement in the defendant town, which of course continued unless he acquired a new one.

The defendants undertook to show that he had acquired a settlement in Attleborough by the twelfth mode in St. 1793, c. 34, § 2. To acquire a settlement in this way, he must have resided in the town ten years, and have paid all the State, county and town taxes assessed on his poll or estate ior any five years.within that term.

The single question in the present case was, whether the pauper had actually paid the highway tax assessed upon him in 1824, it being very clear, that nothing short of an actutl payment of the tax would be a compliance with the statute, and give the pauper a settlement. This was a question of fact for the jury.

The statute of 1786, c. 81, § 3, provides that a surveyor of highways shall make a return of those who have not worked out or otherwise paid their highway tax, and the assessors shall include it in their tax-bill of the ensuing year. The defendants contended, that as the tax upon the pauper was not included in the tax of the ensuing year, the presumption was that it was paid.

The judge who tried the cause instructed the jury, that this circumstance did raise a presumption of payment, but that it might be repelled by other proof, and he left it with .the other evidence to the jury, who found a verdict for the plaintiffs.

The plaintiffs now contend that this instruction was wrong, and that the instruction ought to have been, that the presumption was conclusive. But the Court are clearly of opinion that the instruction was right. There was nothing in the statute, and certainly nothing in the circumstances of the case, to render this presumption conclusive. It was evidence to be weighed and considered by the jury, and they might well consider it as fully counterbalanced by the express negative testimony of the surveyor. The jury were also rightly instructed, that the burden of proof was on the defendants, and that if they doubted of the truth of the fact relied on, to wit, the payment of the tax, the verdict must be for the plaintiffs.

Judgment on the verdict.  