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Thatcher v. Powell. 6 W.

further instructed the jury, that the said record, or any thing therein contained, was not sufficient in law to authorize the sale of the lands made by the said sheriff Saunders, nor the deed aforesaid made to the said Vance by the said John Cocke, the said successor of the said Saunders, and that the said sale and deed did not in law vest any title to said lands in the said Samuel Vance.

To this instruction of the court, the counsel for the defendants excepted. In consequence of this instruction, the jury found a verdict for the plaintiffs, and a judgment was accordingly rendered in their favor. The cause was then brought by writ of error to this court.

The objections made on the record to the title papers of the plaintiff, so far as respects their registration, have not been pressed in this court, and do not appear to be sustainable. The plaintiffs in error rely principally on the deed made by John Cocke, the sheriff of Montgomery county, on the 14th of April, 1808, and insist that the instruction given by the circuit court to the jury, on this point, is erroneous.

The validity of this deed depends on the act passed by the legislature of the State of Tennessee, on the 25th of October, 1797, respecting the collection of taxes. The 3d section of that act directs the court of each county, at its session, in the month of January, in each year, to appoint a justice of the * peace, for [*124] each captain's district in the county, to receive lists of the taxable property, for the then present year.”

The 5th section makes it the duty of the sheriff to discover, and report in writing, to the clerk of the court, such taxable property as may not have been returned within the time limited by law.

The 6th section directs non-residents to return to the court an inventory of their taxable property.

The 9th section enacts, that if any non-resident “shall fail, by him self, his agent, or attorney, to return his, her, or their taxable property, as by the act directed, the property of such person, so failing, shall be liable, and stand bound to pay a fine of fifty dollars, and a double tax, to be collected and paid, as by this act directed, and the justice shall report the said property to the best of his knowledge and information as aforesaid.”

The 13th section directs the sheriff, in the event of the non-payment of taxes by a specified time,“ to levy the same by distress and sale of the goods and chattels of every person so neglecting.”

And the 14th section directs the sheriff, in case there shall not be any goods and chattels on which distress may be made, to report the same to the court of the county, whose duty it is “forthwith to direct Thatcher v. Powell. 6 W.

the clerk to make out a certificate of the lands and tenements liable for payment of the said taxes, together with the amount of taxes and charges due thereon.” This is to be published, and if no person

shall pay the taxes and other charges, within thirty days, [* 125 ) the court shall enter up * judgment for the amount of taxes

due," &c., for which execution shall issue, 'under which execution the land may be sold and conveyed by the sheriff.

That no individual or public officer can sell and convey a good title to the land of another, unless authorized so to do by express law, is one of those self-evident propositions to which the mind assents without hesitation; and that the person invested with such a power must pursue with precision the course prescribed by law, or his act is invalid, is a principle which has been repeatedly recognized in this court. The validity of the sale and deed made by the sheriff of Montgomery county will then depend on the regularity of the order under which the sale was made, and on the question whether that order, if erroneous, will still support the sale which has been made in pursuance of it.

Previous to an order for the sale of lands for the non-payment of taxes, the sheriff is ordered to levy them by distress and sale of the goods and chattels of the delinquent; and if there be no such goods and chattels, he is to report the same to the court, as the foundation of any proceeding against the lands. By this act no jurisdiction is given to the court over the lands of a person who has failed to pay his taxes, until the sheriff shall report that there are no goods and chattels out of which the taxes may be made.

This being an important fact, on which the jurisdiction of the court depends, it ought, we think, to appear on record, either in the judg

ment itself, or in the previous proceedings. [ * 126 ] In this case no such report appears to have been * made.

Could it even be contended that this report might be presumed, the answer is, that the terms of the order exclude such a presumption. It would appear that the report of the magistrate, that the land in question had not been listed, was made in July, 1801, and that the court immediately made that order which the law directs to be made on the sheriff's report, that there are no goods and chattels; and this order refers not to any report of the sheriff, not to any deficiency of goods and chattels, but to the report of the justice of peace, that the lands have not been listed.

This is not the only defect which appears in these proceedings. Previous to an order for a sale of land, and subsequent to the report of the sheriff, certain publications are to be made in the manner and form prescribed by the act. These publications are indispensable Randolph v. Barbour. 6 W. preliminaries to the order of sale. They do not appear to have been made. The judgment against the land was given at January term, 1802, on motion, without its appearing, by recital or otherwise, that the requisites of the law, in this respect, had been complied with, and that the tax still remained unpaid. We think this ought to have appeared in the record.

The argument is, that the judgment for these errors in the proceedings of the county court may be voidable, but is not void ; that until it be reversed, it is capable of supporting those subsequent proceedings which were founded on it.

* We think otherwise. In summary proceedings, where [ * 127 ] a court exercises an extraordinary power, under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially which give jurisdiction, ought to appear, in order to show that its proceedings are coram judice. Without this act of assembly the order for sale would have been totally void. This act gives the power only on a report to be made by the sheriff. This report gives the court jurisdiction; and without it the court is as powerless as if the act had never passed.

In construing the acts of the legislature of a State, the decisions of the state tribunals have always governed this court. In Tennessee, the question arising in this cause, after considerable discussion, seems to have been finally settled on principles which are thought entirely correct. The case of Francis's Lessee v. Washburn and Russell, reported in 5 Hayward, 294, is this very case, and was decided as this case was decided in the circuit court. On the authority of that case, and on principle, the court is of opinion, that there is no error in the judgment of the circuit court.

Judgment affirmed. 12 W. 153 ; 6 P. 291; 4 H. 37; 9 H. 248; 16 H. 610.

RANDOLPH et al. v. BARBOUR et al.

6 W. 128. An equity suit, where an appcal has been taken from the circuit court to this court, but not prosecuted, will be dismissed upon producing a certificate from the court below to that effect.

B. Hardin, for the respondents, moved to docket and dismiss the appeal in this case, which was a suit in chancery, commenced in the circuit court of Kentucky, and a decree entered, from which an appeal was taken, but not prosecuted. He produced a certificate from the clerk of the court below to that effect.

Mayhew v. Thatcher. 6 W. The Court stated that the case was within the spirit of the twentieth rule of court, although that rule applied, in terms, only to writs of error.

Motion granted.

ORDER. A certificate from the clerk of the circuit court for the district of Kentucky, stating that an appeal had been taken in this case, in May term, 1819, from the decree of the said circuit court, having been produced and filed, and it appearing that the record in said cause has not been filed; on motion of Mr. Hardin, of counsel for the respondents, it is ordered that the said appeal be and the same is hereby dismissed.'

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As by the laws of Louisiana, questions of fact in civil cases are tried by the court, unless

either of the parties demands a jury, in an action of debt on a judgment, the interest on the original judgment may be computed and make part of the judgment in Louisiana, without a writ of inquiry and the intervention of a jury. The record of a judgment in one State is conclusive evidence in another, although it appears that the suit in which it was rendered was commenced by an attachment of property, the defendant having afterwards appeared and taken defence. Error to the district court of the United States for Louisiana.

This was an action of debt commenced by the defendants in error against the plaintiff in error, in the district court of Louisiana, upon a judgment obtained in the circuit court of Massachusetts. The original suit, in which the judgment was obtained, was commenced by a process of foreign attachment, according to the local laws of Massachusetts; but the defendant, Mayhew, subsequently appeared and took defence. The cause was referred to arbitrators, and judg. ment rendered upon their report against the defendant, Mayhew, for the sum of $4,788.57 debt, and $284.33 costs. The defendants in error having declared upon this judgment against the plaintiff in the district court of Louisiana, the plaintiff in error pleaded nil debet, to which plea there was a general demurrer, and judgment being ren

dered thereon for the defendants in error, for the sum of 1 * 130 ] * $5,072.90 debt, with interest thereon, &c., and the cause

was brought before this court.

C. J. Ingersoll, for the plaintiff in error.

Vide Rule No. 43, (January term, 1835.)

Farmers and Mechanics' Bank of Pennsylvania v. Smith. 6 W. Hopkinson and Mills, for the defendants in error.

MARSHALL, C. J., delivered the opinion of the court, that as by the local laws and practice of Louisiana, questions of fact in civil cases were tried by the court, unless either of the parties demanded a jury, the interest upon the original judgment in Massachusetts might be computed, and make a part of the judgment in Louisiana, without a writ of inquiry and the intervention of a jury. And that although the original suit was commenced by an attachment, yet that the defendant, Mayhew, had personal notice of the suit, and afterwards appeared and took defence, so that, even supposing there was any objection to the proceeding by attachment, it was cured by the appearance of the defendant, and his litigating the suit.

Judgment affirmed.

FarmeRS AND MECHANICS' BANK OF PENNSYLVANIA v. Smith.

6 W, 131. An act of a state legislature which discharges a debtor from all liability for debts contracted

previous to his discharge, on his surrendering his property for the benefit of his creditors, is a law impairing the obligation of a contract previously made, within the meaning of the constitution of the United States, so far as it attempts to discharge the contract; and it makes no difference, in such a case, that the suit was brought in a state court of the State, of which both the parties were citizens, where the contract was made, and the discharge obtained, and where they continued to reside until the suit was brought.

Error to the supreme court of the State of Pennsylvania.

This was an action of assumpsit, brought by the plaintiffs in error, in the supreme court of the commonwealth of Pennsylvania. The defendant pleaded a discharge under an insolvent law of the State of Pennsylvania, passed after the contract declared on was made. * The plea also averred, that the cause of action [ * 133 ] arose in the city and county of Philadelphia, from contracts made within the same, and that the plaintiffs and defendants were, at the time the said contracts were made, and at the time the causes of action accrued, and at the time the said act passed, citizens of the State of Pennsylvania, and still continued to be citizens thereof. To this plea there was a demurrer; and judgment being rendered thereon for the defendant, the cause was brought by writ of error to this court.

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