
    *Mayor and Commonalty of Alexandria v. Hunter.
    
    Thursday, April 18th, 1811.
    a. fluniclpal Taxes — Recovery by notion — Statute.— Under the act of 1796, c. 31, the mayor and commonalty of Alexandria are not authorized to recover by motion money due for the town taxes; but only for “paving the streets.”
    2. Same — Same—Notice—What it Must State. — In such case, the notice must state the true amount of the assessments for paying the streets, due from the defendant; for if the sum in proof be different from that in the notice, the court will not give judgment for the sum actually due.
    3. Judgment by notion — What Plaintiff Must Prove.— Where an act of assembly authorizes a judgment, by motion in a summary way, in the court of the county where the defendant resides, the plaintiff is bound to prove the defendant’s residence, though no objection be made on his part; for the court will presume nothing in favour of a summary motion.
    In this case a judgment of the county court of Fairfax, in favour of the mayor and commonalty of Alexandria, upon a motion in a summary way, against John Chapman Hunter, was reversed by the district court held at Hay-Market, and the motion dismissed with costs.
    The judgment (which corresponded with the notice) was for 731. 19s. 3d. “being the amount of the assessment imposed on the property of the aforesaid John C. Hunter, in Alexandria, for paving the streets of the said town.”
    A bill of exceptions was filed in the county court, setting forth all the evidence exhibited ; from which it appeared that the sum assessed on the property of the defendant for paving the streets was only 701. 19s. 3d, the farther sum of 31. being charged against him for “tax on his ground.”
    No exception was taken to the jurisdiction of the court; neither did it appear in evidence that the defendant resided out of the county of Fairfax.
    
      
       Appellate Practice — Record —Evidence.-In chancery cases, the evidence is generally in the form of depositions, and is necessarily a part of the record. In all but chancery cases, the evidence is generally made apart of the record by bill of exceptions to the judgment of the court, the evidence at large, and not the facts proved in the opinion of the inferior court, being set out in the bill. Pryor v. Kuhn, 12 Gratt. 622, citing the principal case.
      See fnrther, monographic note on “Bills of Exceptions” appended to Stoneman v. Com., 25 Gratt. 887; monographic note on “Appeal and Error” appended to Hill y. Salem, etc.. Turnpike Co., 1 Rob. 263.
    
   Thursday, April 18th. The judges pronounced their opinions.

JUDGE CABETE.

The evidence contained in the bill of exceptions proves, in-contestibly, that the county court gave judgment, not only for the amount of taxes or assessments for paving the streets, but also for the common town tax ; and, in this view of the subject, this case comes completely within the principle decreed in the case of The Mayor and Commonalty of Alexandria v. *Chapman. But there are two other additional grounds on which I think the judgment of the county court should be reversed ; 1st. The act of assembly gives the right to this summary remedy only in the county where the defendant resides. But it is neither stated nor proved that the defendant resided in the county of Fairfax, where this motion was made. The plaintiffs, therefore, have not shown themselves entitled to the benefit of the act, and this court cannot presume it for them ; 2d. The evidence of the plaintiffs did not entitle them to recover under the notice they had given. The act of assembly requires that the defendant shall have notice, not only of the motion intended to be made, but also of the “amount of the taxes or assessments due from him,” which, in my opinion, prevents the proof or recovery of any sum different from that stated in the notice. The judgment of the district court, therefore, reversing that of the county court, should he affirmed.

JUDGES ROANE and EEEMING assented ; and the judgment of the district court was unanimously affirmed. 
      
       4 H. & M. 270.
     
      
       Sess. Acts. 1796, c. 31.
     