We infer from the exceptions that the defendant, at the trial, admitted the arrest and imprisonment of the plaintiff, and relied, in his defence, solely upon the tax warrant issued by him and the other assessors. The ruling, therefore, that the burden was on the defendant, to show the legality of that warrant, was right, according to the established rule of evidence in such cases. Every imprisonment of a man is primd facie a trespass ; and in an action to recover damages therefor, if the imprisonment is proved or admitted, the burden of justifying it is on the defendant. Cowp. 478, 479; Holroyd v. Doncaster, 11 Moore, 440, and 3 Bing. 492. Nothing to the contrary is advanced in Gage v. Currier & others, 4 Pick. 402, cited by the defendant’s counsel. That was an action of trespass, like this, against assessors. The defendants pleaded the general issue and also a special justification in bar; and the plaintiff, at the trial, seems to have given evidence that he was not a member of the parish in which he was taxed, before the defendants introduced evidence that he was. The judge, who gave the opinion of the court, said, “ the plaintiff, to support his action, must maintain ” the proposition, “ that the assessment against him was illegal.” No question was there raised concerning the burden of proof, nor did the judge make the remark with any reference to that question. The plaintiff did maintain that proposi tion, by proving, under the general issue, that his body or his goods had been seized for nonpayment of a parish tax, and by the defendants’ failure to support their plea in justification. The burden of proving that plea, which was traversed, was clearly on them.
At common law, the matter of defence, relied on in the present case, could not have been given in evidence under the general issue, but must have been pleaded specially in bar; and the subsequent nleadings would have terminated in an *421issue on the question, whether the school district had a legal existence; the very question that has been tried upon the general issue and .the defendant’s specification. The legal existence of the district would have been affirmed by the defendant, and the burden of proving the affirmative would have been on him. And the statute, which prohibits special pleas in bar, and authorizes the giving in evidence of all matters under the general issue, has not altered the rules of evidence, as to the burden of proof, on the trial of that issue.
The burden that was on the defendant was not shifted by the evidence which he introduced respecting the contents of a lost record book, and the existence of a school district de facto. Tf the jury, on all the evidence, were not reasonably satisfied that the whole town had been districted territorially, it was their duty to return a verdict for the plaintiff. Powers v. Russell, 13 Pick. 69; Brown v. King, 5 Met. 181; Delano v Bartlett, 6 Cush. 364. For, unless the whole town had been so districted, the tax, for nonpayment of which the plaintiff was arrested, was unwarranted and illegal; as was held, when this case was formerly before the court, (4 Cush. 487,) and as has been decided in other cases. Withington v. Eveleth, 7 Pick. 106; Perry v. Inhabitants of Dover, 12 Pick. 206; Fry v. School District in Athol, 4 Cush. 250.
Exceptions overruled.