#### * 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 any five years 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 *393been 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.

Sew all, 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 ol twenty-one years in a town or district for the space of -ten years, *togethei*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, all that is necessary to be *394decided. The period of uninterrupted residence, when his hom< Iras 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 punc iliously observed.

*Defendants defaulted*

*395ADDITIONAL 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. *Weave,*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 afterw ards 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. *Middleborougk,*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, *qucere.*It certainly cannot, after the remedy to recover the tax is barred by lapse of time. *—Charlemont*vs. *Conwav.*8 *Pick*408. —F. H.]

(1)

5 *Mass. Rep.*430, *Wrentham*vs. *Attleborough.*