Pittsfield v. Barnstead

| N.H. | Jun 15, 1860

Nesmith, J.^*

1. If the assessments upon the selectmen’s books were in proper form, we need not inquire whether the defendants can now insist upon the exception to the refusal of the court to order a nonsuit. Quimby v. Melvin, 37 N. H. 207; Oakes v. Thornton, 28 N. H. 47. We think the defendants’ motion was properly overruled.

By the act of 1796, if Theodore Willey resided in Barnstead, was taxed for his poll for the term of seven years, and paid all taxes legally assessed on his poll and estate during that term, he gained a settlement there. Laws of 1815, 363. The selectmen were required to make assessments of taxes, and to record them in their book, which was to be the property of the town, and open to any of the inhabitants of the town. Statute of 1791; Statute Laws of 1805, pp. 213, 214. The book, therefore, seems competent to show the assessment. If the records in it are to be held to be the assessments — Perkins v. Langmaid, 36 N. H. 507 — it would seem, then, that there could not be any better proof of such assessments than the assessments themselves. Bucksport v. Spofford, 3 Fairf. 489. In any event, the book furnishes primd facie evidence of the assessment, and that is sufficient. Blake v. Sturtevant, 12 N. H. 567. ¥e need not examine the merits of the case Wakefield v. Alton, 3 N. H. 378, where it is held that such books are not conclusive evidence of the assessment, but are open to correction, until left for record with the town-clerk. This question does not arise here.

2. But there is no record of these assessments in the town-clerk’s office. It has been held in Massachusetts, under a statute requiring the assessors to file the invoice in their own or in the town-clerk’s office, that, as between the assessors and the taxqeayers, a tax was illegal, if the invoice were not so filed. Thayer v. Stevens, 1 Pick. 482; Thurston v. Little, 3 Mass. 432. A sale of land for nonresident taxes has been held invalid in this State, unless the invoices and assessment were left with the town-clerk for record. Cardigan v. Page, 6 N. H. 192. In these cases much stress is laid on the necessity of such deposit or record, in order that those taxed may inspect the invoice. That reason does not exist in this case, for this was a resident tax, and by statute the selectmen’s books were open to the inspection of the inhabitants of the town. Statutes of 1805, 214. Without inquiring whether such an objection is open to the town that has received the taxes, or how far those cases are distinguishable from the present, it would be sufficient to hold that the clause in the act of 1791 was merely directory as to resident taxes, and that the validity of their assessment was not affected by non-compliance witb tbe statutory direction. A similar clause in tbe Revised Statutes, providing that tbe invoice and assessment shall be left witb tbe town-clerk for record before July 1st, was held directory only; at least, as to all such taxes as were collectable before that date. Scammon v. Scammon, 28 N. H. 431. Tbe act of 1791 merely required that such invoice and assessment, or copies of them, should be left seasonably witb tbe town-clerk for record. Statutes of 1805, 214. Tbe selectmen were to make and commit lists of their assessments to tbe collectors, witb warrants ; and tbe collectors were seasonably to collect such taxes. There seems to have been nothing in tbe statutes then in force that required such record in tbe town-clerk’s office before tbe committal of tbe lists to tbe collectors, and, so far as tbe taxes of residents, at least, are concerned, tbe reasoning in Scammon v. Scammon is applicable.

But even if such record or deposits were essential, as tbe transaction was an ancient one, tbe ‘jury might have presumed a compliance witb tbe law. Blossom v. Cannon, 14 Mass. 178" court="Mass." date_filed="1817-06-15" href="https://app.midpage.ai/document/president-of-hallowell--augusta-bank-v-hamlin-6404581?utm_source=webapp" opinion_id="6404581">14 Mass. 178; Freeman v. Thayer, 33 Me. 84. They might have found, upon tbe evidence, tbe former existence, and tbe loss of tbe record, or that copies from tbe record bad been duly left with tbe town-clerk; New-Boston v. Dunbarton, 15 N. H. 205; 1 Gr. Ev. 509; Downing v. Pickering, 15 N. H. 349; Dillingham v. Snow, 5 Mass. 547" court="Mass." date_filed="1809-10-15" href="https://app.midpage.ai/document/dillingham-v-snow-6403454?utm_source=webapp" opinion_id="6403454">5 Mass. 547; Stockbridge v. West-Stockbridge, 12 Mass. 400; and tbe books would have been competent on this question. Bow v. Allenstown, 34 N. H. 369; Boston v. Weymouth, 4 Cush. 538. They were tbe property of tbe defendants, kept by their agents, tbe selectmen, and seem to have come from their custody ; and whether open to tbe public inspection or not, were competent evidence against tbe defendants. Currier v. Boston and, Maine Railroad, 21 N. H. 223. If, then, these books showed tbe assessment in proper form, for seven successive years, of a tax upon Theodore Willey for his poll, that was competent evidence, upon which the jury might have found that he was so taxed for that term of time. As more than twenty years had elapsed since the taxation, the jury might have presumed the taxes paid. Andover v. Merrimack County, 37 N. H. 441; Grantham v. Canaan, 38 N. H. 269. If, then, these books contained the assessment of taxes for seven years successively against Willey, for his poll and estate, the motion for a nonsuit for this reason was properly overruled.

3. To rebut the evidence of Theodore Willey’s poverty and inability to pay taxes during this period, introduced by the defendants, the evidence submitted by the plaintiff, tending to show that he, Willey, had money and other property during this time, was properly admitted. Wiggin v. Plummer, 31 N. H. 268.

4. That part of Nancy Willey’s deposition, cited in this case, was properly rejected by the court. It was immaterial to the issue, and, besides, it was objectionable, as introducing mere hearsay.

5. The fact that Chandler Willey, having no settlement, except by derivation from Theodore Willey, was supported by the defendants, was competent. Hopkinton v. Springfield, 12 N. H. 329; Harpswell v. Phippsburgh, 29 Me. 317" court="Me." date_filed="1849-04-15" href="https://app.midpage.ai/document/walker-v-protection-ins-4928387?utm_source=webapp" opinion_id="4928387">29 Me. 317. As such evidence is received, because it is in the nature of an admission of the party sought to be charged, it is immaterial to whom it was made. No attempt is here made to charge the support of a pauper not having a settlement in Barnstead upon that town, but the plaintiffs are simply endeavoring to show that the pauper had a settlement there; and upon that question the admission of the defendants is competent, under the circumstances of this case. For this reason the cases, Peru v. Turner, 1 Fairf. 189; Peterborough v. Lancaster, 14 N. H. 390, are not in point. There are other cases where similar facts have been offered as an estoppel, and have been held not to be such. These are not in point, for the question in such cases was not whether such facts were evidence, but whether they were conclusive evidence.

6. The instructions as to the alleged mutilation of the books, which appear to have come from the defendants’ custody, were sufficiently favorable to the, defendants, especially when taken in connection with the other evidence tending to show a settlement in Barnstead. 1 Phill. Ev. 447; Hargood v. Wright, Cowp. 86; Broom’s Leg. Max. 726; 1 Kent Com. 157; 1 Gr. Ev. 87, 196; 1 Stark. Ev. 563. Some of the authorities make a distinction between the effect of the destruction of evidence and the mere non-production of it. Cross v. Bell, 34 N. H. 86, and authorities supra. But upon the instructions given, taken in connection with the other evidence, it is unnecessary to consider that question, as, in any view, the defendants were not prejudiced by the directions of the court.

Upon the questions arising as to the alleged mutilation of the books, it was proper for the jury to consider their whole appearance, and, among other things, any evidence they presented of a fraudulent alteration. Knight v. Heath, 23 N. H. 413, 414.

7. The objection, made to the statement of Hollins, that Merrill promised to pay the claim of Loudon in two weeks, would, no doubt, have been well taken, had that agreement been introduced for the purpose of showing, or had it been relied upon by the plaintiffs as tending to show, any contact by which the town of Barnstead was bound or became liable to pay the claim in question; but the witness had made certain statements in regard to the books of Barnstead, and it would seem that the plaintiffs relied upon these statements as tending to show that Theodore "Willey had a settlement in Barnstead, or at least that the witness came to that conclusion from examining their books. The defendants then inquired if that claim was ever sued, and the witness answered, No, and there the matter was left, from which the defendants might perhaps reasonably assume, and. would probably assume, that the witness could have come to no such conclusions in regard to the liability of Barnstead, from an examination of their books. But to show how this fact was, and that it was merely to show the reason why no suit was brought upon this claim by Loudon after they had taken pains to investigate the case, the witness stated, upon inquiry, this arrangement with Merrill at the muster, and thus the witness, as the agent of Loudon, relying upon that agreement, took no measures to collect the claim; that the claim was not paid, and that ninety days had expired in which notice must be given. This simply explains why no suit was brought upon their claim by Lou-don ; and as the case' finds that this was the only purpose for which the evidence was introduced, we see no reason why it was not properly admitted for that purpose, as explanatory of a fact, drawn out on cross-examination of the witness Hollins.

8. The instructions as to the payment of taxes were sufficiently favorable to the defendants. Had there been no evidence upon this point, the jury, after such a lapse of time since their assessment, might have presumed them paid. They were in fact directed, that as evidence had been introduced by both parties upon this subject, they were to find according to the preponderance of the evidence, and of this the defendants have no reason to complain.

9. The questions l’aised by the exception to the jurors from Grilmanton, who served on the panel that tried this cause, were considered and settled in Bodge v. Boss, 39 N. H. 406. As the venires and return showed the facts, it was too late to take this objection after verdict.

There must, therefore, be

Judgment on the verdict.

* Bellows, J., having heen of counsel, did not sit.