
    *The Mayor and Commonalty of Alexandria v. Chapman.
    Friday, November 3d, 1809.
    I. Local Assessments — Paving Streets — Recovery by Motion. — Under the act of 1796, c. 31, authorizing the Mayor and Commonalty of Alexandria to-recover by motion the amount of moneys assessed for paving the streets, a judgment, (in terms) “and also for the taxes of the town,” cannot be sustained: notwithstanding, from the account exhibited, it appear that such judgment was actually intended to be for no more than the sum due for such assessments.
    a. Same — Same—Same — Defences. — The defendant having proved, in opposition to such motion, that he had personal property in Alexandria of greater value than the amount of assessment; quaere, is he bound, moreover, to prove that the Serjeant of the town had knowledge of such property, and that a distress could have been levied upon it.
    3. Judgment — Recovery by ¡lotion — Private Act of Assembly . — Quaere, where a j udgment is obtained by motion in a summary way, under a private act of Assembly, is it necessary, in stating the evidence in a bill of exceptions or case agreed, to mention that such act was read, or given in evidence, to the Court?
    4. Same — Same—Same.—Also, Quaere, where an act of Assembly authorizes a judgment by motion in a summary way in the Court of the County where the defendant resides, is it necessary, if no objection to the jurisdiction appear in the record, that it should have been stated therein that the defendant was actually a resident of the County, to the Court of which the motion was made?
    The appellants, upon motion, at the Fauquier County Court, in March, 1802, recovered a judgment against the appellee for 601. 17s. Od. 1-2. “being the amount of assessments imposed on the defendant’s propertj' in the town of Alexandria, for paving the streets of said town, and for the town tax on said property, for the years 1799, 1800, and 1801,” with costs. A bill of exceptions was filed, stating that “on the trial of this motion the defendant offered in evidence, from the testimony of one witness, that there was property in the town of Alexandria, consisting of four slaves, three of whom were hired by the year, and one other who was permitted to hire himself; that the said slaves were at the time of the taxes becoming due, and from that time to the present have been, resident in Alexandria, and in the power of the Ser-jeant of said town; but it was not proved that it was known to the Serjeant of Alexandria that the said property was there, upon which a distress could be levied, upon the terms before stated, three of the said ne-groes being under hire, and another of them at liberty to hire himself; that the plaintiffs on their part produced an account (inserted in heec verba) with an admission in writing by the defendant’s counsel that the same was supported by. proper evidence; which was all the evidence offered upon the trial, (the notice being confessed.”) The account, under a marginal date of
    ‘1798,” contained charges for paving, amounting to 601. 17s. Od. 1-2. and under marginal dates of ‘ ‘1799, 1800 and 1801” charges for taxes on property amounting to 61. Os. Od. which sum of 61. Os. Od. was ■deducted from the aggregate at the foot thereof, so as to leave a Balance of 601. 17s. Od. 1-2. for which the judgment was rendered.
    Upon an appeal to the District Court held at Haymarket, this judgment was reversed, and the motion of the plaintiffs overruled; whereupon they appealed to this Court.
    Williams, for the appellants.
    Botts, for the appellee.
    In support of the judgment of the Countj' ■Court, it was argued that, if the defendant thought proper to object to the sufficiency of the evidence he should have demurred, instead of taking a bill of exceptions;  that the evidence was certainly legal, and the Court had a right to judge of its weight. But, if the County Court erred, the judgment of the District Court was also erroneous, because they should have given such judgment as the County Court ought to have -rendered.
    On the other side it was said, that a demurrer to evidence would have been strange in a case not before a Jury, but the Court, which had complete jurisdiction as to the law and the facts.
    The act of 1796, c. 31, on which this motion was made, was a private act: and it should have appeared on the record, that it was given in evidence by reading it to the Court,  That act, too, being in derogation of the common law, is to be construed strictly. It was sufficient, that the defendant had property within the town of Alexandria, to take the case out of the act: it was not necessary that the remedy, without motion, should be complete. The legislature probably had in view this particular species of property.
    ':;Tn reply, it was urged that the rule relative to private acts of parliament in England do not apply in this country. There, private acts are not printed with the public statutes; but here all the acts are printed and distributed in the same way. It was therefore unnecessary to produce it, for the magistrates might have acted on it from their own knowledge.
    The motion was justified by the spirit and meaning of the act; for, although the slaves were in Alexandria, there was no proof that the Serjeant knew they were there.
    Botts also raised an objection to a variance between the judgment and a notice, a ■copy of which appeared in the record; contending that confession of notice amounts only to an acknowledgment that the notice, exhibited, was served on the party, not to an acknowledgment of its correctness: otherwise it would be a notice at large. But Williams insisted that confession of notice waived all objections, and rendered it unnecessary for the Court to look at it.
    Tuesday, November 7. The Judges, ROANE and TUCKER, (EEEMING having been prevented by indisposition from sitting in this cause,) pronounced their opinions.
    
      
      Tbe principal case was followed in Mayor & Commonalty of Alexandria v. Hunter, 2 Munf. 228.
      See monographic note on “Municipal Corporations” appended to Danville v. Pace, 25 G-ratt. 1.
    
    
      
       1 Wash.. 362, Wroe v. Washington & others.
    
    
      
       1 Morg. Essays, 55, 58.
    
    
      
      <c) Rev. Code, vol. 1, p. 112, sect. 30.
    
   JUDGE TUCKER.

By an act of Assembly passed in the year 1796,c. 31. the Mayor and Commonalty of the town of Alexandria are authorized to recover of any person holding lands within the limits of the said town, and who have no other property therein on which the taxes or assessments imposed on such property for paving the streets therein can be levied, the amount of such taxes or assessments by motion in the Court of the County or Corporation, where such persons reside. Under this act a motion was made in the Court of Eauquier County, against the appellee, George Chapman, “for a judgment against him for the sum of 661. 17s. being the amount of the assessment imposed on his property in the town of Alexandria, for paving the streets of the said *'town, and for the town tax on his said property for the years 1799, 1800, and 1801, notice whereof was proved by oath.”

The Court rendered a judgment against the defendant for 601. 17s. being the amount of assessments imposed “on the defendant’s property in the town of Alexandria, for paving the streets in the said town, and for the town tax on said property for the years 1799, 1800, and 1801 with costs.” The District Court reversed the judgment and the Mayor, &z. appealed.

There can be no doubt, I think, that this judgment of the County Court was erroneous ; because the act above mentioned does not authorize a judgment against a person having property in the town of Alexandria, and residing out of its jurisdiction, for any tax, or assessment whatsoever, except for paving the streets. Upon this ground, therefore, I think the judgment of the District Court must be affirmed, so far as relates to the reversal of that of the County Court.

The defence set up was, that Chapman had four slaves in Alexandria, three of which were hired by the year, (not specifying to whom,) and the fourth was permitted to hire himself, and that those slaves, at the time of the taxes becoming due, and from that time to the present, were resident in the town of Alexandria, and in the power of the Ser-jeant of the said town; but it was not proved that it was known to him that they were there.

With respect to this point, it is generally true, that, where any person wishes - to avail himself of any special act of the legislature, in his favour, he must shew his case to be completely within the provisions of the act; but in this case, the defence set up is of such a nature as might well have been unknown to the plaintiffs, and perhaps the facts thus alleged in the defence, might have been carefully concealed by the defendant’s own conduct, with a view to protect his negroes from being distrained for his taxes. I am inclined to think, that, under such circumstances, the plaintiffs ougnt not to be barred of this remedy, without actual notice of the residence *of the negroes in Alexandria, being proved; or such circumstances of notoriety appearing as might create a presumption that the fact of their residence might have been known to the plaintiffs.

To the bill of exceptions an account stated is annexed, in which there are charges to the amount of 601. 17s. for what X presume must be deemed paving the streets; which is admitted by Chapman’s attorney to have been supported by proper vouchers. A separate charge for the town tax amounts to 61. and that sum appears to have been deducted from the whole account which was 661. 17s. as in the notice mentioned. Although I have little doubt that the manner of entering up the judgment, viz. for the town tax as well as the tax for paving the streets, was the blunder of the Clerk, since the judgment is rendered for the precise sum demanded for paving the streets, yet I presume we must take the judgment as we find it; and, in its present form, it is clearly erroneous. But I think sufficient appears from the bill of exceptions to enable us to correct it in this particular, and enter it for paving the streets only; which is all the law allows.

As to the objection that the act of Assembly ought to have been set forth as a part of the evidence before the Court; and •that the word all, at the end of the bill of exceptions, excludes the presumption that the Court had it before them, I am not fond of indulging such exception. It might have been given in evidence, or it might have been shewn to the Court as the ground of jurisdiction. If an exception was meant to be taken on that ground, I think the defendant should have pleaded to the jurisdiction. He confessed the notice, without doing so, and I think he ought to be held to his implied admission.

Upon the whole, as I am clearly of opinion the judgment of the County Court, in the form in which it appears, is erroneous, and, as there is a difference of opinion on the other points, I am satisfied with affirming the judgment of the District Court, reversing that of the County Court.

* JUDGE ROANE).

It is unnecessary to decide the question whether the Act of 1796 should of necessity have been given in evidence on the trial. Whatever my impressions may be on this point, as derived from the English doctrine, from the provision of our statute in relation to giving private acts in evidence, and from the practice of this country in relation to the findings in special verdicts, the question is important, and may possibly be influenced by some circumstances in this country not existing in England. I will therefore leave it entirely open, and have really no conclusive opinion upon it.

As for the act of 1796, it only warrants a judgment for the amount of moneys due for paving the streets, and then only when the person moved against hath no property other than real within the limits of the town of Alexandria, on which the amount of the assessment can be levied. Besides, a judgment under the act can only be rendered by the Court of the County where the defendant resides. On all these important grounds the judgment before us seems defective. Por, 1st. The judgment is not only for such assessment, but also “for the taxes of the town.” When I see that the amount of the judgment rendered is short of that stated in the notice, by exactly the amount of the items for “town taxes” mentioned in the account exhibited at the trial, it is highly probable that those items were disallowed, and judgment in fact rendered only for the money due for paving; but, on the other hand, this may not have been the case ; and as the judgment itself says otherwise, I do not hold myself at liberty to conclude that the judgment in this particular is unobjectionable.

As to the 2d ground, it does not appear to us that the case has happened which-would authorize a procedure under the act. On the contrary, the defendant proved that he had other propertyresiding within the town, and, as I understand it, of value sufficient to satisfy the sum due for paving: as to its being necessary for the defendant to give notice to the Serjeant of the existence of this last fact, the law does *not require it, and I shall not add to or alter the law to favour this summary proceeding.

As to the 3d point, there is only one Court in the Commonwealth which is authorized to give a judgment under the Act, and that is the Court of the County in which the defendant resides. It ought to appear to us, by stating or shewing the fact of the residence, that the Court which rendered the judgment had cognisance of the case. I can presume nothing to support a summary judgment.

These ideas have resulted, as well from my own deliberate judgment in the case, as from the spirit of decisions in this Court in relation to summary proceedings. I shall not quote those decisions very particularly, but refer generally, (as at present recollected,) to the cases of Asberry and Calloway, Anderson v. Bernard, Martin v. Beverly, and Stuart v. Hamilton.

On the whole, my opinion is to affirm the judgment of the District Court, reversing that of the County Court of Pauquier.

Williams moved that the judgment of affirmance should be rendered without prejudice. He was apprehensive the affirmance-of that judgment (which was “that the-plaintiffs take nothing by their motion”)' would be a perpetual bar.

JUDGE TUCKER was opposed to making any special entry. If this judgment should be pleaded in bar, a replication, shewing that the original judgment of Pauquier was. reversed, would certainly be sufficient to prevent the bar.

JUDGE ROANE said it was usual, in reversing judgments, to assign reasons, but not in affirming. He could see no necessity for changing the rule in this case; nor could he apprehend the consequences stated by Mr. Williams. This Court cannot be presumed to know any thing of the state of accounts, but to have decided upon the matters of law, as *the District Court did. He should regret that a construction should be put upon the judgment of this Court which would prevent the Mayor, &c. of Alexandria, from endeavouring to get their money by pursuing a proper course. But he could not think that would be the case. Besides, he presumed, the case would be reported, and the opinions of the Judges upon this point stated. 
      
       1 Wash. 72.
     
      
       rbid. 186.
     
      
       Call’s MS. Spring term, 1805.
     
      
      
        2 Hen. & Munf. 48.
     