The proprie.

Absent....WASHINGTON, J.

ERROR to the Circuit Court for the district of

tors of build- Columbia, sitting at Alexandria.

ings in Alexandria, insured

by the society,

The Mutual Assurance Society against fire, &c. was were bound by incorporated by an act of the legislature of Virginia in

the act of as

sembly of Vir- 1795,

ginia passed in 1805, and the

subsequent

According to the original plan of the institution the regulations of houses in the towns and country were blended together the society, to in one general mass, and were mutually pledged to each tional premi- other, to make good the losses which might be respecum upon the tively sustained by fire.

pay an addi

increased rate

of hazard aecording to the new regula

In January, 1805, the legislature of Virginia, at the tions of 1805. request of the society, passed a law changing the original plan of the institution, by separating the town buildings from those in the country, and making the town buildings liable only for town losses, and the country buildings for country losses. This law directed that there should be a re-valuation of the buildings which had been previously insured; and authorized the society, as in the first instance, to fix the rates of hazard, and make such by-laws, rules and regulations as they might think proper.

The society was authorized to recover its debts by motion, in a summary manner.

Under the act of 1805 the society made a new tariff of rates of hazard.

The houses of the Defendants were re-valued under the act. The re-valuation was less than the original valuation; but the rate of hazard, or in other words, the premium for the insurance, was increased under the new regulation.

v.

LER.

By the third section of a by-law of the society made MUTUAL in January, 1805, under the authority of their original assu. so'Y, act of incorporation and of the act of 1805, it is enacted, "that if the re-valuation of any building shall prove it KORN & "to be of less value than that at which it was insured, WISEMII,"there shall be no demand against the society of resti"tution of any part of the premium which may have ❝been paid, and the proprietor of such building shall "pay the additional premium (if the materials of which "his building be erected, or its contiguity require it) "which according to the new rates of hazard ought to be "paid."

In July, 1805, the Defendants, Korn and Wisemiller, agreeably to a form prescribed by the society, made a declaration, under their hands and seals, as follows: "We do hereby declare and affirm, that we hold the "abovementioned buildings, with the land on which they stand, in fee simple, and that they are not, nor "shall be insured elsewhere, and that we will abide, ob"serve and adhere to the constitution, rules and regu❝lations, which are already established, or may here"after be established by a majority of the insured, pre❝sent in person or by representatives, or by the ma"jority of the property insured, represented either by "the persons themselves, or their proxy duly autho❝rized, or their deputy, as established by law, at any "general meeting to be held by the said assurance so"ciety; or which are or hereafter may be established "by the president and directors of the society."

To this declaration were annexed a plat, description and new valuation of the buildings insured.

The buildings had been originally insured by the Defendants in the year 1796.

The sum now claimed of the Defendants was for the additional premium arising out of the increased rates of hazard according to the new regulations, made in January, 1805.

SWANN, for the Plaintiffs in error.

This case differs from that of Atkinson, (ante. vol. 6, p. 202) which was for an additional premium occasion;

MUTUAL ed by the increased valuation of the building-this is for ASSU.SO'Y. the additional premium upon the new rates of hazard.

V.

LER.

KORN & In the former case between these same parties (ante WISEMIL- vol. 6, p. 192) it was decided by this Court that the proprietors of houses in Alexandria, still continued inembers of the society, notwithstanding their separation from the state of Virginia, and were bound by all the by-laws and regulations of the society.

The only remaining question is whether the Defendants are liable for the new rates of premium. It was just that the old members and the new should stand on the same ground and pay the same rates of premium where the risk was the same. This point has never been disputed in Virginia.

C. LEE, contra.

The former case has settled the point that the Defendants are bound by their original contract in 1796. The legislature had no right to alter or vacate that contract. There was nothing unjust or hard in the case. The additional premium ought to be confined to cases of excess upon re-valuation.

SWANN, in reply.

The act of assembly of 1805 was passed at the request of the society, of which the Defendants were members, and bound by the acts of the majority.

March 3d....JOHNSON, J. delivered the opinion of the Court as follows:

In the case decided between Atkinson and these Plaintiffs, February term, 1810, the question arose on the construction of the 7th section of the act of 1805, and the additional premium in that case was imposed upon a re-valuation without relation to a change in the rates of premium, but resulting from the increased valuation.

In this case the sum demanded arises from the changes made in the rates of premium, arising from a

v.

LER.

variation of risk; to equalize which the 8th article of MUTUAL the present rules of the society requires an additional per assu. so'y. centage to be paid by the present members of the company, in conformity to what is to be imposed upon sub- KORN & sequent applicants for insurance. And it is contended WISEMILthat the contract being complete between the parties, the insurers cannot add to the consideration to be paid for insurance. In general this doctrine is unquestionably correct, but peculiar circumstances except this from ordinary cases. This subject was considered in the quoted case decided between these same parties in February, 1810. It is there laid down, and on reflection we are confirmed in the opinion, that in the capacity of an individual of the body corporate the Defendants are bound by the by-laws of the society as far as is consistent with the nature of its institution.

This case is within the 4th section of the 8th article of those by-laws, and therefore the judgment below ought to have been for the Plaintiffs.

tion, if the

ERROR to the Circuit Court for the district of Upon a sale of Columbia, in a special action on the case, by the Plain- land at auctiffs in error, against the Defendant in error, for not pay- terms be that ing the purchase money for a house sold by the Plain- the purchaser tiffs to the Defendant, at public auction.

shall within 30 days, give his notes with

to comply

The premises were publicly advertised, and set up at two good indorsers, and if auction by a licensed auctioneer. On the day of sale, he shall fail certain written articles, purporting to exhibit the terms, within the 30 were read aloud by the auctioneer in the presence and days, then the hearing of the Defendant and others assembled upon and to a that occasion, and the paper was also handed round count of the and read by those present. Of those articles, three first purcha ser, the ven only require notice. dor cannot

land to be re

WEBSTER

Art. 1st, declares that the highest bidder shall be the & FORD purchaser.

0. HOBAN.

Art. 3d, requires that the purchaser should secure the purchase money, with interest included, by his promaintain an missory notes, with two approved indorsers, payable in the vendee for six and twelve months.

action against

a breach of the contract,

until a re-sale

shall have as

Art. 5th, declares that the purchaser shall be allowed "thirty days to comply with the 3d article, at which certained the time, (in case of compliance,) he shall receive a good "and complete title to the property. On failing to com"ply within the 30 days, the property then to be re"sold on account of the first purchaser."

deficit, altho' the vendee should instruct an attorney to draw a deed, and insert his name

The premises were struck off to the Defendant, as as purchaser. the highest bidder, at the price of 4,000 dollars; whereupon the auctioneer, in the presence of the Defendant, signed a certificate, at the foot of the articles of sale, declaring him to be the purchaser at that price.

An attorney was employed to draw a deed of bargain and sale, and received instructions for that purpose, both from the Plaintiffs and Defendant; the draft of the deed, with blanks for the date and the name of the grantee, was presented to the Defendant, and left with him for inspection; after examining it, he returned it to the attorney, requesting him to insert his, the Defendants, name in the proper blanks, which he accordingly did. This draught of the deed recited the title of the Plaintiffs, and that the Defendant, being the highest bidder, had purchased the premises at the sum of 4,000 dollars, which he had secured to be paid to the Plaintiff's,, according to the terms of sale.

The breach of the agreement alleged in the declaration, was, that the Defendant had failed to give his promissory notes within the 30 days, or at any time afterwards.

The Court below decided that the Plaintiffs could maintain no action upon the contract, without first resorting to a re-sale and ascertaining the deficit.

JONES, for the Plaintiffs in error, contended,

1. That the remedy by a re-sale, was cumulative,