We think this case ought to have gone to the jury. There was some evidence that the taxes were paid; indeed, we think, had the jury found, under the evidence, that they were paid, we could not say that they found contrary to evidence or without evidence. The witness swears he had always included this note in his tax-returns, and that he had given it in every year. Why, as he was one of the partners, may not this have been the truth of the case ? Perhaps he was the active partner, and it may have been he that always made the return and paid the tax. Perjury ought not to be inferred. The witness *626swears, very positively, that he did give in and pay the tax. What reason is there for saying he did not ? If the jury believe the testimony, there ought to have been a verdict instead of a non-suit.

It is for the jury, and not the Court, to pass upon the proof of the payment of taxes. Here was some proof, and we think the Court erred in dismissing the case.

Judgment reversed.