Parsons against Allison, 5 Watts 72

Per Curiam. A collector’s warrant, unlike a fieri facias which binds the goods from its delivery — formerly from the teste — has not the common law'incident of lien. Annually to tie up the chattels of a country while the taxes are in a course of collection, would be an insufferable annoyance; and before the legal existence of it can be admitted, something very explicit ought to appear in the laws supposed to inflict it. To enforce payment, however, no more is given to the oificer than a power to distrain, which implies not the existence of a lien before distress made.

As betwixt landlord and tenant, it required a statute to render a removal of the goods, effectual to evade the right of distress; and even then, an exception is made in favour of purchasers, without notice. The very point before us, however, was determined in 1832, at Sunbury, in Fitzsimmons’ administrators v. Kontz & Hummel, a case not reported. Judgment reversed, and judgment now rendered for the defendants below. The ease referred to, differing somewhat in its circumstances, is here inserted.— Reporter. John Baskin and John App, administrators of David Fitzsimmons, deceased, v.

Christian Kontz and Benjamin Hummel. Amicable action, in which the following facts are submitted to the court in the nature of a special verdict. David Fitzsimmons died in December 1831. The taxes on his real and personal estate remained unpaid for the years 1830 anfl 1831.

Christian Kontz was appointed collector of county tax for the year 1831, for Penn’s township, whore Fitzsimmons resided, and received his duplicate in the month of May 1831, in which duplicate David Fitzsimmons was taxed 28 dollars 19 cents, and also a warrant to the said Christian Kontz, to collect the said taxes (pro vt warrant.) That the said Christian Kontz demanded the said sum of 28 dollars 19 cents, county tax, according to law, which was not paid. • Plaintiffs are administrators of the said Daniel Fitzsimmons, and filed their inventory of his personal estate the 1st day of January 1832.

Afterwards, on the 21st day of January 1832, the said Christian Kontz distrained an ark, being part of the estate of said deceased in the plaintiffs’ hands and included in their inventory for the county tax aforesaid, and has sold the same in pursuance of said distress, for the sum of 41 dollars, which money still remains in the bands of said Kontz.

Benjamin Hummel was in like manner appointed collector of county tax for the same township, for the year 1830, and the duplicate was delivered to him in 1830, in which David Fitzsimmons was taxed 13 dollars 89 cents, or thereabouts, and a warrant for the collection of the said tax. That the said Benjamin Hummel demanded the tax aforesaid of the said David Fitzsimmons, according to law, which was not paid on the 21st day of January 1832; the said Benjamin Hummel distrained the ark aforesaid, for the said tax of 1830,13 dollars 89 cents, subject to the distress of Kontz for the tax of 1831.

If the court should be of opinion that the distress, both of Kontz and Hummel, is illegal, then it is agreed that judgment be entered for plaintiffs for 41 dollars. If the court should be of opinion that the distress of both is legal, then judgment for defendants generally. If either distress is legal, judgment to be entered accordingly. Upon this special verdict the court below rendered a judgment for the defendants. Merrill, for plaintiffs in error. Bellas, for defendants in error. The judgment was reversed and a venire facias de novo awarded on the ground that the collector’s warrant was no lien.