« EelmineJätka »
with sales and account current as soon as possible, to enable him to settle with those gentlemen here.”
After the receipt of these letters, the Defendant on the 5th June, 1807, sold one hundred bags of the cotton on account of Wiliam Potts, and Co. at 17d. sterling per pound, and immediately advised them thereof.
The Defendants afterwards, that is on the 31st December, 1807, had th remaining one hundred bags of cotton, valued at 1id. sterang per pound, at which price they took it to themsilves, and carried the amount to the credit of William Potts, and Co. and on the 1st March foilowing, sold them at a higher price. The Plaintiff thinking the Defendant, guilty of a breach of orders, brought this action to recover damage, and on the preceding evidence, the Circuit Court was of opinion that he could not separately maintain an action against them, on which a verdict and judgment passed against him.
Although the purchase of this cotton was on the joint account of the Plaintiff, and of William Potts and Co. yet as, in its shipment to the Defendants, their distinct interests were not only disclosed, but as separate and variant instructions were given as to the disposal of it, and as, under these directions, the Defendants acted throughout the whole of their agency in this business, it is not easy to perceive on what ground they now allege that they can be liable only in a joint action in the names of the present Plaintiff, and of William Potts and Co. By their own conduct they have precluded themselves from every objection of this nature, for they have contracted, as to the one half of this property, with the Plaintiff, and as to the other moiety, with William Potts and Co. and it will be seen by a recurrence to the testimony, not only that their engagements with these parties are distinct, but of different kinds. In selling the proportion of W. Potts and Co. they had a discretion, but over the other they had no right to sell for less than cost and charges. This Court therefore is of opinion that the action was well brought, and that the judgment of the Circuit Court was erroneous and must be reversed.
ERROR to the Circuit Court for the district of A purchaser
of real estate Columbia, sitting at Alexandria..
is not personal. This was a motion in the Court below for judgment, ly liable for arand execution against Preston, (under the 11th section assessed before of the act of congress of 25th of February, 1804, 66. to his purchase. amend the charter of Alexandria," vol. 7, p. 48) for taxes due to the corporation for the years 1804, 5 and 6, on a lot of ground in Alexandria, which Preston purchased of Scott in the year 1807, after the taxes were due. The assessors' books were returned on the 1st of May in every year to the office of the clerk of the common council, where they remained subject to public inspection.
The Court below, being of opinion that the summary remedy by motion, judgment, and execution, was given only against the person who was proprietor at the time of the assessment of the taxes, dismissed the motion ; and the common council brought their writ of error.
The 11th section of the act to amend the charter of Alexandria is as follows:
“ Be it further enacted, That whenever taxes upon “ real property, or other claims charged upon real pro“perty within the town, shall be due and owing to the “common council, and the proprietor shall fail to dis“ charge the same, the said common council, after “ giving the party reasonable notice when he resides in s town; sixty days notice when he resides out of the s town and in the United States; and after six months
publication in the newspapers when he resides out of " the United States; shall be empowered to recover the 66 said taxes or debts, by motion in the Court of Alex6 andria; and, provided it shall appear to the satisfac
COMMON « tion of the Court that such taxes or claims are justly COUNCIL “due, judgment shall be granted and an execution shall OF ALEX- “ issue thereupon, with the costs of suit, against the
“goods and chattels of the defaulter, if any can be found
“ within the town; if not, that the whole property, upon PRESTON. " which the tax or claim is due, shall, by order of the
“ Court, be leased out at public auction for the shortest 6 term of years that may be offered, on condition that “ the lessee pay the arrearages, and also the future “ taxes accruing during the term, and be at liberty to “ remove all his improvements at the expiration of the « lease; provided always that the common council may “ prosecute any other remedy, by action, for the re“covery of the said taxes and claims which is now poso sessed or allowed.”
E. I. LEE, for the Plaintiff in error.
The question arising upon this case is, whether the proprietor, for the time being, of a lot in Alexandria, is personally liable to a judgment and execution for arrearages of taxes assessed upon the lot before he became the proprietor thereof.
The act of congress gives a remedy, by motion, judgment and execution, against the proprietor who shall fail to discharge the taxes. Preston was the proprietor at the time of the demand of payment, and has failed to pay. He is therefore within the express letter of the law. “ The defaulter” also is the person who has failed to pay on demand; the person who was liable to pay when the demand was made upon him. Every proprietor of the land is liable for its taxes so long as he is proprietor. The claims, according to the words of the act, are charged upon the real property. They accompany the land into whose hands soever it may pass. The law was intended to give a remedy against any proprietor of the land. The taxes are placed on the same fonting as other charges which are liens on the land. It is not a case of greater hardship than that of other liens on real estate. Caveat emptor is the rule where he has the means of knowledge. Here the assessors' books were always accessible. The purchaser is bound to take notice of the non-payment of the taxes. He purchases at his peril.
The statute uses the definite article, “ THE proprietor." OF ALEXThe question is, which proprietor? Scott or Preston ? ANDRIA We say it means him who was proprietor when the tax was laid, and in whose name the land was assessed, and PRESTON. who was unquestionably liable in the first instance. He was “the proprietor,” “the defaulter" contemplated by the legislature. If he was liable, did his liability cease when he sold the land? or is he still liable?. There is nothing in the law to justify an idea that the legislature contemplated a succession of proprietors who should be successively liable; a succession of debtors; nor that they should be all liable at once; nor that the corporation should have its choice out of the several successive proprietors. It suggests the idea of one proprietor only, and of one debtor, or defaulter only; and if but one, it can be no other than him who was confessedly liable; him who was proprietor at the time of the assessment. The tax is a lien on the lot so far as to authorize the Court to direct it to be leased out to any one who will pay the taxes, in case the goods and chattels of the debtor cannot be found.
The books of the assessor and collector are not matter of record. The purchaser has no right to inspect them. The tax is a secret lien.
February 19th.... The Court affirmed the judgment, without assigning their reasens.
ERROR to the Circuit Court for the district of When a cargo Maryland in an action upon a policy of insurance, dated is insured by on the 18th of May, 1810, on the cargo of the brigo cies, in some of Elizabeth from St. Petersburgh or Cronstadt to Phila- which the rate delphia, against all risks, for 6,000 dollars, « valuing fixdd at which
PLEA the invoice ruble at 46 cents.” . The invoice amounted to SANTS 95,565 71 rubles, equal, at 46 cents per ruble, to
V. $ 43,960 23. MARY'T. INS. CO. Before this policy was made the Plaintiff had effected
eight other policies in Philadelphia to the amount of the prime cost 36,900 dollars. In the first seven of these policies there of the cargo shall be valu.
was rio valuation of the ruble ; but in the eighth it was eil; in ascer- valued at 40 cents. The Defendants, at the time of extaining the, a ecuting this policy, had no knowledge of those affected interest of the in Philadelphia. insured, upon settlement of those policies
The vessel and cargo were captured by a Danish in which the vessel and condemned. The Plaintiff abandoned in due rate of ex: time. change is fixed, the whole cargo is to be
The underwriters at Philadelphia paid. But on setvalued at that rate of ex tlement of the seven first policies, in which the value of change, with- the ruble was not fixed; and which insured 29,900 dolthe rate of ex. lars, the underwriters, in order to ascertain whether the change by Plaintiff's interest in the cargo amounted to the sum inwhich the va- sured by those policies, viz. : 29,900 dollars, insisted been ascertain- upon fixing the value of the ruble at thirty-three and a ed in the other third cents. policies.
On settlement of the eighth policy, which valued the ruble at forty cents, and which insured 7,000 dollars, the calculation (in order to ascertain whether the Plaintiff had still a sufficient interest left to entitle him to receive the 7,000 dollars insured by that policy) was made by converting the whole amount of the invoice into dollars at 40 cents per ruble, and deducting therefrom the 29,900 dollars received upon the seven preceding policies. By this mode of calculation it appears (according to the statement in the bill of exceptions which, however, does not seem to be accurate) that after the Plaintiff had received the 29,900 dollars insured by the seven first policies, and the $7,000 insured by the eighth policy, his remaining interest to be covered by the ninth policy, was only 1,481 71 rubles, equal, at 46 cents per ruble, to 682 dollars, 58 cents.
But if, on settlement of this last policy, the plaintiff is entitled to have the value of his interest in the cargo ascertained by converting the whole amount of the in.