Mayor of Alexandria v. Hunter

2 Va. 228

Opinion

Judge Cabell.

The evidence contained in the bill exceP^ons proves, incontestably, that the county court gave iudvment, not only for the amount of taxes or as-J . - r , sessments 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.

(a) 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(b) 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 be affirmed.

Judges Roane and Fleming assented; and the judgment of the district court was unanimously affirmed.

4 H & M. 270.

Sess.Acts, c‘ 3U