BILLERICA vs. CHELMSFORD.

*THE INHABITANTS OF BILLERICA versus THE INHABITANTS OF CHELMSFord.

A pauper, who resided in a town from 1793 to 1805 inclusive, (except that he left the town in the autumn of 1795, without an intention of returning, and was absent about three months,) and paid a poll tax for the years 1794 to 1797 inclusive, and also for the years 1803 and 1805, was holden not to have acquired a settlement in such town.

ASSUMPSIT for the support of one Jotham Farmer, a pauper, alleged by the plaintiffs to have had his settlement in Chelmsford. The action was submitted to the decision of the Court upon the following facts stated and agreed by the parties:

The said Farmer was born in Chelmsford, and at the time when the supplies were furnished by the plaintiffs had, and still has, his legal settlement in Chelmsford, unless he has acquired a settlement in Billerica,

In the year 1793, he came from Chelmsford to Billerica, where he resided until the autumn of the year 1795, when he removed, with his family and effects, to Chelmsford, (in which place his father then lived,) not expecting or intending ever again to return to reside in Billerica. After living about three months in Chelmsford, he again removed, with his family, to Billerica, where he has ever since resided.

He was taxed for his poll, and paid the tax, in the years 1794, 1795, 1796, 1797, 1803, and 1805, except that in 1805 a part of his tax was abated.

If, from the foregoing facts, the Court should be of opinion that the pauper had not acquired a settlement in Billerica, the defendants agreed to be defaulted, and that judgment should be rendered against them for the sum demanded by the plaintiffs, with costs; otherwise the plaintiffs agreed to become nonsuit, and that the defendants should have judgment for their costs.

Stearns, for the defendants. The twelfth mode of acquiring a settlement, prescribed by the statute of 1793, c. 34, § 2, is the residence of a citizen of full age, in any town or district within the commonwealth, for the space of ten years together, and paying all state, county, and town or district taxes, duly assessed on his poll or estate for within said time. The pauper, [*395] in* this case, had generally his residence in Billerica for ten years, and he paid taxes for five of them. His temporary absence for three months cannot affect his settlement, nor his intending that his absence should be permanent. Had he

five any

years

BILLERICA vs. CHELMSFord.

been uninterruptedly in Billerica, with a continual intention of returning in a short time to Chelmsford, he would still have acquired a settlement. The actual residence for ten years, with the payment of taxes, is the thing required. The pauper was taxed in Billerica for the years 1795 and 1796, during a small part of which he was absent at Chelmsford. It is material to observe that the residence on the 1st of May in each year fixes the citizenship for the year. His having paid the taxes for those years should estop the plaintiffs to deny his residence there during that time. Suppose he had left the town for one or two days only, with an intention never to return, would he lose his settlement by this? Some line must be drawn; and since the statute speaks of years only, perhaps more than half a year's absence should be required to break the continuity.

Locke for the plaintiffs.

SEWALL, J., delivered the opinion of the Court.

If a residence or home, uninterruptedly occupied through one continued term of ten years, is required in the provision of the statute relied on for the defendants in this case, then a question to be determined is, whether the other requisite, of a payment of taxes, is established by the facts agreed, or not.

The provision of the statute, which is the twelfth mode of gaining a legal settlement, requires the residence of a citizen of the age of twenty-one years in a town or district for the space of ten years, together with the payment of taxes for any five years within said

time.

It is impossible to doubt of the construction. The words are very explicit. A residence of ten years together, and a payment of taxes in any five years of the term, are required. The continuance is essential of the whole term required: the years are to be ten together, or uninterruptedly; and a different construction is excluded by the provision respecting taxes.

* Where the change of place had been for the short [*396 ] term of three months in a period of ten years, it might

be a question of fact, and the result of evidence, whether this was a change of the party's home and domicile, or merely an occasional absence from his home. But this question does not arise in this case, where the parties agree, in point of fact, that the pauper had changed his home, and that his return to Billerica was an accidental event, not at all connected with his removal from thence, in the intentions of the pauper. The period when he resided ten years together in Billerica commenced after his return. But whether, in that period of residence, he is proved to have paid taxes there, is, in this view of the case. al' that is necessary to be

BILLERICA vs. CHELMSFORD.

decided. The period of uninterrupted residence, when his home has been altogether at Billerica, commenced in the latter part of 1795, or the beginning of 1796.

The assessment for 1795 was before the removal of the pauper to Chelmsford, according to the usual time of assessing taxes; and then five years' taxes, within the term of ten years together, are not proved to have been paid by the pauper

The partial abatement of the tax in 1805 would, of itself, make no difference; because the settlement does not depend upon the quantum of tax paid, or the species of tax; but upon the assessment and payment of some tax, for the poll or the estate. The expression in the statute, "all taxes duly assessed," is not to be construed to mean all that may be claimed by any assessment; but all that shall be insisted on as duly assessed. An abatement supposes the assessment not duly made. If the tax be wholly abated, it is as if no assessment had been made; and if the tax be partially abated, and the residue paid, then all that was duly assessed has been paid. So, too, when the abatement has been a contrivance, to prevent the effect of this provision of the statute, in fraudem legis, in the abatement of an inconsiderable county tax, the Court have gone so far as to consider the tax assessed and paid for all the purposes of this provision of the statute. (1)

*397]

*But in the case at bar there is no suggestion of any fact or circumstance from which a suspicion of that kind could arise. For five years, between 1797 and 1803, there was no assessment, or none that was insisted on; and none since 1805. This is a case, therefore, where, although the residence has not been questioned, no removal has been attempted; yet the party has been regarded and treated as a poor man, of no competent ability to be received as an inhabitant; taking the fact to have been that the tax of 1795 had been assessed before the removal to Chelmsford.

The positive rule enacted is a line of discrimination, by which questions of this kind are to be decided. And we must not render the rule uncertain, the line variable and shifting, if I may so express it, by yielding to arguments of expediency, or by reasoning upon the general purposes of the discrimination. The purpose of the legislature, which is fully expressed, and is suited to the occasion, is a line of discrimination, arbitrarily assumed, indeed, but to be punctiliously observed.

Defendants defaulted

(1) 5 Mass. Rep. 430, Wrentham vs. Attleborough.

BILLERICA vs. CHELMSFORD.

ADDITIONAL NOTE.

[See Southborough vs. Marlborough, 24 Pick. 166. — Randolph vs. Easton, 23 Pick. 242. Monson vs. Chester, 22 Pick. 385. Robbins vs. Townsend, 20 Pick. 394. Lexington vs. Burlington, 19 Pick. 426.-Jefferson vs. Washington, 1 Apple. 293.Phillips vs. Kingfield, 1 Apple. 375.- Henniker vs. Weare, 9 N. H. 573.

To gain a settlement by payment of taxes, the party must pay all the taxes duly assessed upon him for the period specified. Payment of a part, and a discharge from the rest by vote of the town, are not sufficient. Shrewsbury vs. Salem, 19 Pick. 389. Nor is a settlement gained by being taxed for five years, if during that time the party has left the town with the intent never to return; though he changed his intention, and did return within the same year. Westbrook vs. Bowdoinham, 7 Greenl. 367.

The assessment of taxes for five successive years upon one afterwards a pauper, does not estop the town, in a question of settlement, from showing that during part of that period his domicile was elsewhere. - Ibid.

A person does not gain a settlement by residing in a town ten years together, and paying taxes there for any five of those years, if within that time he is committed to jail, and, while there, demands and receives relief as a pauper from the jailer. — East, &c., vs. Sudbury, 12 Pick. 1.

Upon such question of settlement, payment of the highway tax for one year will be presumed, from its not being included in the tax-bill for the next; but the presumption may be rebutted. Attleborough vs. Middleborough, 10 Pick. 378.

The burden of proof of such payment is on the party which alleges a settlement derived therefrom. — Ibid.

Whether the town, charged by this means, can at any time avoid its liability by showing that the tax was illegally assessed, quære. It certainly cannot, after the remedy to recover the tax is barred by lapse of time. -Charlemont vs. Conway, 8 Pick 408.-F. H.]

DANIEL HAYDEN AND ANOTHER versus THE MIDDLESEX TURNPIKE CORPORATION.

An aggregate corporation may be liable in an action of assumpsit; the evidence in support of which action may be some express stipulation made by the agent or directors of the corporation; or the duty may arise on some act or request of such agency, within their authority, where no express stipulation is to be proved.

THE declaration was in case, and consisted of three counts : 1. Indebitatus assumpsit on an account annexed for labor, &c., in making the said turnpike. 2. Quantum meruit for the same labor, &c. 3. A special count, stating, in substance, that, by an act or law passed on the 23d of June, 1806, by which the route and course of the said turnpike is altered, it is, among other things, enacted and provided "that the aforesaid corporation shall pay for all labor which has been performed, and all damages which have been sustained, before the passing of the said act, in the town of Chelmsford, by order of the directors of the said corporation, in making the road according

HAYDEN & AL. vs. MIDDLESEX TURNPIKE CORPORATION.

to the route or directions pointed out in the act, to which the act before mentioned is in addition." And whereas the [*398] said Hayden * & Read, by order of the said directors, before the passing of the said act, had done certain labor and sustained damages, other than those in the said account annexed, but similar thereto, in making the said road according to the said route or directions, the said corporation, by force of the statute aforesaid, became liable, and, in consideration thereof, at Chelmsford aforesaid, on the same 23d day of June aforesaid, promised the said Hayden & Read to pay them for the said labor, &c., so much money as they reasonably deserved to have therefor. And the said Hayden & Read aver that they reasonably deserved to have for the said labor, &c., the sum of 102 dollars, of which the said corporation thereafterwards on the same day had notice; yet though requested, &c.

The action was tried upon the general issue at the sittings here after the last November term, before Parker, J., and a verdict taken for the plaintiffs, for the just amount of their claim, subject to the opinion of the Court, whether the evidence in the case rendered the corporation liable in this action.

The labor, services, and articles furnished were all on account of work done upon a part of the turnpike which the directors had agreed to make, and which had been put under the direction of General Bridge, one of the directors. Hayden, one of the plaintiffs, employed the men, and paid them out of the store of Hayden & Read, the two plaintiffs. General Bridge was frequently present, knew the work was going on, and from time to time gave directions as to the manner of executing it. Others of the directors were frequently present; and O. Holden, one of their number, testified that he supposed the work was going on by order of the directors.

By the fourth article of the by-laws of the corporation, it is provided that "the directors shall have power to do whatever the corporation may lawfully do, which they may think will be for the benefit of the corporation."

On the 29th of November, 1805, the directors "voted [*399] * that General Bridge be a committee to stake out the road from Biscuit Bridge to Chelmsford meeting-house, according to the location of this evening; and if he shall find a deviation necessary, of more than the width of the road from a straight line, he shall previously give notice of it to the directors in their meeting." "Also, that he be authorized to contract for making any part of said road, as soon as he shall meet with contractors for the same; one third part to be paid in shares." On the 26th