V.

ALEXANDER the sense in which the legislature employed doubtful MAYOR, &c. Phrases previously used, that sense is to be adopted in construing those phrases. Consequently, if a subsequent act on the same subject affords complete demonstration of the legislative sense of its own language, the rule which has been stated, requiring that the subsequent should be incorporated into the foregoing act, is a direction to courts in expounding the provisions of the law.

The act of the 16th of December, 1796, contains this clause: "It shall and may be lawful for the mayor and commonalty of the town of Alexandria to recover, of and from all and every person or persons holding land within the limits of the said town, and who have no other property within the said town 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 person or persons reside."

This clause most obviously contemplates a full right to assess taxes on property lying within the town and belonging to non-residents; for it gives a right to recover such assessment in the court of any county or corporation in which the owner of such property may reside. It is either a legislative exposition of a power formerly granted, or the grant of a new power.

If the words of the enacting clause could admit of doubt, the proviso would remove that doubt. It is that the clause which has been recited should not "be so construed as to empower the court to give judgment against any person or persons, residing out of the limits of the corporation of Alexandria, and owning ground therein, having no house on it, where the service, to compensate which the tax or assessment has been or may be imposed, has been or may be performed before the last day of February, 1797; but for the collection of such tax the same means may be used which would have been lawful before the passage of this act."

V.

This proviso shows, as clearly as words can show, ALEXANDER the sense of the legislature in favour of taxing the MAYOR, &c. land of non-residents.

The same act appears to the court to remove any doubt, which might otherwise exist, respecting the second branch of this question.

Upon a critical examination of the act of the 13th of December, 1796, the court would feel much difficulty in declaring that it comprehended in the corporation of Alexandria only that ground which was actually divided into half-acre lots, and the court would be the less inclined to take this distinction, because no inducement for making it is to be found in the nature of the thing, or could have existed with the legislature.

The preamble states the lots, represented as contiguous to the town of Alexandria, to have been laid off by the proprietors, in lots of half an acre each, within certain limits which are described by the law. The enacting clause drops the quantity of which a lot is to consist, and declares that every lot, or part of a lot, within the limits described, which had been or should be improved, should be made part of the town of Alexandria. The act of 1798 annexes to the town all the unimproved lots within those limits. The case finds that the property on which the tax for which the judgment is rendered was imposed, is within those limits, and was laid off as part of the town in squares of two acres, but these squares were not actually subdivided into halfacre lots.

The term half-acre used in the preamble of the act of 1796 is a description of a circumstance probably contained in the representation on which the law was founded. But it is impossible to consider that part of the representation as material to the law. If the squares were regularly laid out, the subdivisions of those squares were unimportant, for that subdivision would always depend on the caprice of purchasers and sellers. Lots and parts of lots might

Vol V.

B

V.

MAYOR, &C.

ALEXANDER be separated, or annexed to each other, at will. The enacting clause, therefore, of the first act, comprehends every lot, or part of a lot, within the described limits, which had been or should be improved; and the enacting clause of the act of 1798 comprehends every lot within those limits. That a square comprehended in those limits, laid off as part of the town, and containing precisely four half-acre lots, should be considered as excluded from the town, and not liable to taxation for the improvement of the streets, for the single reason that the proprietor had not marked thereon the lines of subdivision, would not be readily conceded.

But if a doubt respecting the sense of the legislature could otherwise be entertained, that doubt is removed by the act of the 16th of December, 1796, already recited, which particularly respects the power of taxation, and gives the remedy by motion.

That act drops the term "lot," and uses the term "land." It authorizes the corporation to recover by motion against any person "holding land within the limits of the town" "the taxes or assessments

แ

imposed thereon." The proviso, which has been also recited, uses the term ground," and considers very person owning ground within those limits as liable to be taxed. The 3d section of the same act declares, "that when the proprietor of any lot of ground within the said town shall fail to fill up any pond of water, or remove any nuisance," as directed by the corporation, the mayor and commonalty may exercise corporate powers in the case. If the squaresin question do not consist of lots, because the subdivisions have not been actually marked, yet they consist of land, they consist of ground, and being within the limits of the town, they are, in the opinion of the court, within the corporation, and subject to taxation.

But the remedy in the actual case is not by motion. The act affording this remedy gives it only in a specified case. It is given only in the case of “ a person or persons holding land within the limits of

V

the said town, and who have no other property with- ALEXANDER in the said town." This is not, as has been said, a MAYOR, &c. direction to the officer of the corporation, but is a description of the precise case in which alone the remedy by motion is allowed. It being found that Charles Alexander had property in the town from which the officer could have levied the tax assessed on him, a motion for that tax was not sustainable. If the corporation did not choose to risk levying the tax by seizure, they might have instituted a suit to determine their right.

This court is unanimously of opinion, that the circuit court erred in giving judgment for the plaintiff on motion, and therefore directs that the said judgment be reversed and annulled.

HENDERSON v. MOQRE

ERROR to the circuit court of the district of The refusal t Columbia.

the court be

low to grant a new trial is not

error.

action of debt upon H condi

500 dollars, ev

smaller sum

an ac

On the plea of payment to an action of debt upon upon the plea a bond, for 500 dollars, dated in 1781, the defend- of payment to ant offered evidence to prove that in the year 1797 an the plaintiff acknowledged that he had received of bond the money of the defendant to the amount of about tioned to pay 1,000 dollars, of one Willoughby Tibbs, out of the idence may be amount of a decree which the defendant had ob- received of the tained against him for 3,000 dollars, and that the payment of money which he so received was in full of all his with claims against the defendant, the plaintiff having by the plaintif knowledgment paid for the defendant several sums of money. There that it was in was no settlement made, nor any receipt given. full of all de"Whereupon the plaintiff prayed the court to in- from such evistruct the jury, that if from the evidence they should dence, if un. be satisfied that the bond had not been fully paid the jury may off, no declaration of the plaintiff's that his claims and ought to infer payment against the defendant were all satisfied' would be a of the whole. bar to his recovery in this action; which instruction

mands; and

contradicted,

V.

MOORE.

HENDERSON the court refused to give as prayed, but directed the jury that if they should be satisfied by the evidence, that the defendant, in the year 1797, paid the plaintiff a sum of money less than the amount mentioned in the condition of the bond, which the plaintiff at that time acknowledged to be in full satisfaction of all his claims against the defendant, such payment and such acknowledgment, are competent evidence upon the plea of payment, and that the jury may and ought to presume therefrom that the whole sum mentioned in the condition of the said bond has been paid to the plaintiff, unless such presumption be repelled by other evidence in the cause; to which refusal and instruction the plaintiff excepted."

The verdict being for the defendant, his counsel moved the court for a new trial, and grounded his motion upon sundry affidavits tending to prove that the whole amount of the bond remained due to the plaintiff, and that he was surprised by unexpected testimony at the trial. But the court refused to grant a new trial.

Two crrors were assigned.

1. That the court below refused a new trial.

2. That the court ought to have given the instruction to the jury as prayed by the plaintiff; and ought not to have given the direction which they did.

MARSHALL, Ch. J. said that this court had decided at the last term, that a refusal by the court below to grant a new trial was not error.

The case being submitted upon the other point, without argument,

MARSHALL, Ch. J. delivered the opinion of the

eourt,

That there was no error in the opinion of the court below. A part of the money due on the bond