
    [Pittsburg,
    September, 1823.]
    STOKELY against BONER.
    IN ERROR.
    There is no personal liability for taxes due on unseated lands.
    
      Query, how far lands are to be considered as unseated lands, from which profits were once drawn, but have been afterwards abandoned for a long time by the • owner.
    If a tax be assessed on seated land in the name of the owner, and the name of the tenant given as matter of description, and in the duplicate, the name of the tenant be omitted, the variance is immaterial.
    On a writ of error to the Court of Common Pleas of-county, the bill of exceptions and charge of the court below, were returned to this court without the evidence in the cause, and it appeared that this suit was originally brought before a justice of the peace by Barnet Boner, the plaintiff below, against Thomas Stokely, defendant below, to recover the amount of taxes due by Stokely, in the township of Donegal, during the time Boner was collector. The case,being brought by appeal into the Court of Common Pleas, a verdict and judgment were there rendered for the plaintiff.
    The claim to sue in the present form was founded on the act of assembly, passed the 2d Jlpril, 1821, which provides, that when a collector has failed to collect the tax due on his duplicate, within the time prescribed by law, he may, in his own name, sue for and recover it, notwithstanding the time, fixed for such collection has expired. ' ' '
    The facts of the case, so far as they appeared in the charge, were as follows. ' By the duplicate for the year 1820, it appeared, that Stokely was charged 17 dollars 53 cents, as the aggregate of his taxes. It was admitted that Boner was collector for Donegal township, in that year. Proof was given, that Stokely admitted before the magistrate, that the taxes had not been collected by Boner within the time prescribed, and that they remained unpaid at the time of trial. . The assessment list contained the name of Thomas Stokeley, in its alphabetical order, charged with different parcels of land, and several persons were named as tenants: and it was proved that in-1820, several persons lived as tenants on parts of the land taxed, and had property sufficient to pay the taxes. The duplicate annexed to the warrant named Stohely alone as charged with the whole, without reference to the tenants or suggestion of any apportionment of the taxes.
    The following errors assigned in this court state those points in the charge which were noticed in this court.
    1. The court told the jury, that as the duplicate annexed to the warrant named Stohely as charged with the whole, without reference to the tenants, or' suggesting any apportionment, that this was legal, if Stohely returned the property as his own, notwithstanding it appeared in evidence by the assessment and otherwise, that the greater part of the lands were actually occupied by tenants in the year 1820.
    2. The court instructed the jury, that the assessment may be either in the name of the owner or occupier; and, that if the assessment were made in the name of Stohely, and the names of the several tenants given as matter of description, the duplicate corresponded with it, and was sufficient.
    3. They stated to the jury, that the tax was a personal charge;" that the owner .or landlord is the real debtor, liable to be proceeded against, in the ordinary mode, and that the act of 1804 merely created an additional remedy, when the absence of the owner precluded the possibility of proceeding in the ordinary mode against him.
    4. They charged, that if neither the landlord’s goods nor his body could be found, that then the collector might call upon the tenants, and recover from them.
    5. They charged, the jury, that the act of 1821, enabled the collector to recover at any indefinite period, and that it would be extremely unjust for the collector to recover from the tenant after he had left the land and that this ground of defence was insufficient, and the plaintiff ought to recover.
    6. Because the judge stated to the jury in the absence of all proof, c< if from this proof, sufficient presumption arises to satisfy you that the previous requisites were observed, and demand made" according to the law, your verdict ought to be for the plaintiff.”
    7. The court stated to the jury, that the same principles applied to the lands upon which there were no tenants.
    
    8. ^ecause the judge did not state to the jury the law in relation to the 3d, 4th, 5th, 6th, and 7th questions or points, submitted té the court, and upon which he was requested by defendant’s counsel so to do.
   The opinion of the court, (Tilghman, C. J. being absent,) was delivered by

Gibson, J.

There is nothing in the 1st, 2d, 3d, 4th, 5th, or 6th errors. In the duplicate annexed to a collector’s warrant, the landlord may be charged with the whole tax, without reference to tenants, or a suggestion of an apportionment among them. The assessment may be either in the name of the owner or the tenant; and if it be in the name of the owner, with the name of the tenant given as matter of description, and the tax be charged in the duplicate against the owner, leaving out the name of the tenant, the variance will be immaterial. Where the tax is assessed in the name of the owner, the tenant is made liable to pay it, and his liability is in addition to that of the owner, as it existed previously to the act of 1804, so that the collector may proceed against either or both, till the amount due is collected. By the act of 1821, there was no point of limitation to the remedy given to the collector, who might have proceeded at any time after the expiration of the authority contained in his warrant, but by the act of the 18th March, 1822, this provision is repealed, and the warrant itself is continued in force for three years.

•But the court after an accurate exposition of the law with respect to taxes due for seated lands, stated that the same principles are applicable to lands on which there are no tenants; and that where the proper preliminary steps have been taken, the amount may be recovered from the owners without proceeding in the mode prescribed by the act directing the sale of unseated land. Whether any of the lands in this case were in fact unseated, does not appear,as the evidence has not been brought up with the record; and without a consideration of the facts the meaning of the court in this part of the course must necessarily be ambiguous. My impression is that the direction given was, that there is a personal liability for taxes even' where they are due for unseated lands: which is undoubtedly not law. In such case the tax is laid specifically on the thing and not on the person of the owner. This was incidentally decided i n Burd v. Ramsey, 9 Serg. & Rawle, 109, for reasons which it is unnecessary to repeat. As the cause will go back on this ground, the misapprehension of the court if it shall appear to have laboured under one, will not prejudice the plaintiff below; for if it appear that the lands were seated, he will be entitled to recover. The precise meaning of the term “unseated,” as applicable to land, has not been fixed. With respect to one case which may be put, and which is the one that most usually presents itself, there can be no doubt. Where a family has not resided on the land, or profits have never been received from it, it will undoubtedly be considered as unseated: such is the situation of that species of property in the northern and western counties, which is called wild land. .On the other hand, where profits continue to be drawn from the land, although no family reside on it, it can with no propriety be said to be unseated. There may be cases, however, where profits have for a time been drawn from the soil, but the land for its barrenness or some other cause, has for a long time been abandoned, or suffered to lie waste; and whether the owner might in such case abandon it to a sale for the taxes, or whether he would continue personally liable, is a question with respect to which, I am not prepared to give an opinion. I incline to think the practice has been to look to the person of the owner.

Several points were submitted to the judge who tried the cause, for his direction to the jury, and error has been assigned for the want of the instruction desired. On examining the charge, it appears that a proper direction was given on all of them which were material to the issue; and this assignment of error, therefore, is not sustained.

Judgment reversed and a venire de novo awarded.  