
    William Gray versus John Kettell and Others.
    By the general tax act, the owners of such goods, &c., as were sold, used, or improved in towns other than those where the owners dwelt, were to be taxed in such towns, and not where the owners dwelt. One was owner of stores in another town than that wherein he dwelt, in which was deposited a large quantity of personal property imported by him from foreign parts ; and he kept an agent there, to take care of, to exhibit, and to deliver them to the purchasers, when sold by the owner, but not to sell them. Such owner was holden liable to be taxed therefor in the town where such stores were situated.
    [* 161] * This was an action of trespass, brought against the defendants for illegally assessing the plaintiff, whereby his property was seized, &c., and it was submitted to the decision of the Court, upon the following facts stated and agreed by the parties.
    The defendants were assessors for the town of Charlestown, duly chosen and sworn for the year 1813. On the first day of September in that, year, they assessed a State, county, and town tax upon the inhabitants of Charlestown, and others liable, &c. The plaintiff, on the first day of May in that year, was, and ever since has been, an inhabitant of the .own of Boston, and was engaged in trade and merchandise in that town. On the day last mentioned, and ever since, he was owner of a wharf and stores, in which was deposited a large quantity of personal property, imported directly from foreign parts ; and he constantly kept an agent at said stores, to take care of the property contained therein, to exhibit the same, when required, to persons desirous of negotiating with the plaintiff respecting it, and, when sold by the plaintiff, to deliver the same to the purchasers thereof; but the said agent was expressly forbidden by'the plaintiff to sell or merchandise the said property ; and he never did sell nor offered to sell the same, or any part thereof. It had heretofore been usual for the plaintiff to lade and unlade and to fit his vessels at the said wharf; but none were fitted at said Charlestown during the said year, owing to the state of the country. The plaintiff kept a store in Boston, and was assessed by the assessors of that town for all his personal property, as well in said town as elsewhere.
    The defendants seized, and sold at auction, the property of the plaintiff, as set forth in his declaration ; and, if the plaintiff was liable to be assessed in Charlestown, for personal property so situated, it was agreed that the forms of assessment, notice, levy, seizing, and sale, were in conformity to law.
    * If the Court should be of opinion that the plaintiff [* 162] was liable to be assessed, and to pay said tax upon his personal property, he was to become nonsuit; otherwise, the defendants were to be defaulted, and judgment be rendered for the plaintiff, for the value of the property, as alleged in the plaintiff’s declaration, with interest and costs.
    
      J. T. Austin, for the plaintiff.
    
      Ward, for the defendants.
   Parker, C. J.,

delivered the opinion of the Court.

By the fifth section of the tax act, for the year 1813, it is enacted, that, “ for such goods, wares, and merchandise, or other stock in trade, ships, and vessels, as are sold, used, or improved in the towns, districts, or plantations other than where the owners thereof may dwell, such owners shall be respectively taxed therefor in such town, district, or plantation, or other place, and not where they dwell or have their home.”

The property, for which the plaintiff in this action was assessed by the defendants, being of the description mentioned.in said act, and being within the limits of the town of Charlestown ; the only question, which can arise on the facts agreed in this case, is, whether that property was “ sold, used, or improved ” in Charlestown, within the meaning of the statute. And we are clearly of opinion that it was. It was there kept for sale and exhibited to purchasers ; and, although the bargain must be made with the plaintiff personally, yet the delivery, which is the completion of the sale, must necessarily take place in Charlestown.

The control which the plaintiff retained over his agent was undoubtedly designed for the convenience and safety of the plaintiff, with regard to price and credit. But the sale must be considered as made where the goods were stored, as much as if the plaintiff should, by letter, agree to sell goods at Portland or Salem, and direct his agents to deliver them to the purchaser.

Perhaps the general object of this provision bv the legislature is not so well attained in this particular case, as it [*163] * would be in the common case of a merchant, living in the country, but doing his business in some sea-port town ; for, from the proximity of Charlestown to Boston, the assessors of the latter place might as well understand the value of the property to be taxed, as the assessors of Charlestown. But, as the provision is general, we are not at liberty to exempt from the application of it particular cases, which might not have been foreseen by the legislature, as proper for that body to have excepted from the rule adopted for the public convenience.

The circumstances of the stores, &c., being owned and not hired by the plaintiff can avail nothing in his favor ; for the owning a store in the town where a man transacts his business, other than the town in which be dwells, is even a stronger indication of his doing business in such town than a hiring would be ; and the fact of hiring is mentioned in the act in no other view than as a circumstance from which the actual transacting of business in a town where one does not dwell may be inferred.

The cases of Little vs. Greenleaf & al., and The Salem Iron Factory Company vs. Danvers, were .decided upon principles adopted by us in this case.

According to the agreement of the parties, the plaintiff must be called.

Plaintiff nonsuit. 
      
       See Sup to Rev. Stat. (1839), c. 139, § 1. — Ed.]
     
      
       Delivery is not necessary in order to perfect the sale and vest the title in the yen dee. 1 Chitty, Plead., 5th ed., 381.—2 Chitty, 56. — Brown on Sales, p. 40.— Com. Dig., Bargain & Sale, A.; Biens, D. E.; Agreement, B. — 3 Shep. Touchstone, 222, 6 E. 26. — Dyer, 30. a. - Noy. Max. 42.— 7 East, 571
     
      
       7 Mass. Rep. 236.
     
      
       10 Mass. Rep. 514.
     