Coit et al.

V.

Sheldon.

officer; and after a recurrence to the 11th section of the "act relating to gaols and gaolers, and for the relief of persons imprisoned therein," the first excep- Vermont Stat. tion in error was abandoned:

On the second exception, the counsel for the plaintiffs contended, that it was apparent by the officer's return on the original writ, that no notice of the suit had been given to two of the then defendants. The return simply states, that the sheriff had taken Job Boynton for bail for the appearances of the other two defendants.

Sed per Curiam. The Court have inspected the record. We find that the suit on the bail-bond brought by Samuel B. Sheldon as assignee of the sheriff against the present plaintiffs in error, was entered at the September term of Chittenden County Court, 1800, when all the defendants, now plaintiffs in error, appeared by their attorney Elnathan Keyes, an enrolled attorney of the Court. The cause was continued under a rule entered by agreement of parties, that judgment should be entered by default at the February term, 1801.

After an appearance and imparlance, all defects in personal service are waived.

Plaintiff's counsel.

With submission, we conceive, that the appearance of Mr. Keyes, who was merely the attorney of Chamberlain, ought not to operate against the other defendants, who had no notice of the suit.

vol. 2. p. 284.

Coit et al.

V.

Sheldon.

Per Curiam. The record is express. Mr. Keyes appeared as the attorney of all the then defendants, and entered into a rule for an imparlance; and it is of an attorney probable that the defendants' waiver of their plea in appears on the record, the abatement for want of sufficient service, was the quid

When the name

Court will not

suffer the re- pro quo for the consent of Sheldon to the conti

cord to be con

troverted. If a nuance.

party has been

injured by the

But be this as it may, the record must not be conappearance of troverted. The plaintiffs in error, it appears by it, tained, he may have had their day in Court in the original suit.

counsel not re

have his re

medy.

If the fact be, that Mr. Keyes appeared for them without being engaged, which is not readily presumable in an officer of this Court, especially a gentleman of Mr. Keyes' character, Pomroy and Coit have their action for the injury, and they must resort to it. They cannot have relief in the present suit. The defendant in error must not suffer by their laches, or the misconduct of their attorney of record.

Let judgment be entered, that the Court have inspected the record, and find that there is no error therein; that the judgment of the County Court is affirmed, and that the defendant in error have his

costs.

W. C. Harrington and John Fay, for plaintiffs.
for defendant.

DOE, ex dem. SAMUEL MIX,
against

JOEL WHITLOCK, Tenant.

EJECTMENT to recover possession of sixty.

four acres of land in the township and island of South Hero in Lake Champlain, being Lot No. 75.

Doe

V.

Whitlock.

To render valid under the act

a sale of land

for raising 30,000 dollars, passed Novem

Common rule entered, and general issue to the ber 3d, 1791, an

Jury.

Plaintiff read the charter of South Hero, signed by the Governor of the State, dated 27th October, 1779, in which James Hopkins appears to be an original grantee, and then stated that the land demanded was severed to the right of Hopkins, and that his title accrued by the sale of the land at public vendue for the non-payment of a tax under the act" for the purpose of raising thirty thousand dollars," passed November 3, 1791.

He then read the warrant of the State Treasurer, directing the first constable of South Hero to collect one halfpenny on each acre of land in said town, dated 2d October, 1792.

He then exhibited a paper purporting to be the assessment of the tax by the selectmen on the lands in the town, dated 1st February, 1793.

Defendant's counsel objected to this paper being read to the Jury, and took two exceptions:

First. That the assessment does not appear to have been returned to the Treasurer of the State.

attested copy of the rate-bill or general list made by the selectmen and

delivered to the

constable of any incorporated

town, must be

shewn to have

been deposited

surer of the State, by the

with the Trea

1st November, 1793.

Doe

V.

Whitlock.

Secondly. That the assessment is not made agree ably to the statute, in that the lots, ranges, &c. are not particularly specified; but the lands are described generally, as being holden by the original proprietors.

Per Curiam. The paper cannot be admitted in evidence. When a title to real estate is defeated by operation of law, the statute must be strictly pursued.

The object of the act in directing that the return of the assessment by the selectmen should be made to the Treasurer, is important and obvious. It is to give notice to non-resident owners of the precise amount of the demand which is made upon their lands for the purposes of government, in order that they might not be divested of their lands through mistake or ignorance. Perhaps no government has been more careful in this respect than that of Vermont. The whole tenor of this act exhibits a marked attention to rights of the land owners.

It levies a tax of one halfpenny per acre on all the lands in the State for a great and beneficial purpose, no less than to raise the sum to be paid to the State of New-York, agreed upon by the several State commissioners for the final adjustment of certain controversies which had unhappily arisen between this and that highly respectable State. The act passed November 3d, 1791, but the tax was to be collected and paid into the treasury by the 1st day of January, 1794. The State Treasurer is directed between the 1st of October and the 1st of November, 1792, to issue his warrant to the first constable of each or

ganized town in the State to collect the tax in their towns respectively. Upon the receipt of the warrant the constable is to give notice to the selectmen of the town, who, before the 1st of March, 1793, are to make out and deliver to the constable a rate-bill containing a list of all the lands in such town held in severalty, and the number of acres contained in each lot, and the range in which it lies, or the division to which it was drawn or pitched, and the tax to be paid on the same; and if there be undivided land in such town, the selectmen shall, under their oath of office, make an estimate of the quantity of the land so undivided, to the best of their judgment, which, together with the other lands in said town, they shall form into one general list, and return an attested copy thereof, on or before the 1st of November, 1793, to the Treasurer of the State; and if the tax should not be paid by the 1st September, 1793, the collector was to proceed to advertise in all the public newspapers in the State, six weeks successively, the sum assessed to each person, the place where the same would be received, and, in case of delinquency, the place where and the time when the same would be sold; and in twenty days after such publication, the collector on non-payment might proceed to vend the land.

The return was to be made to the Treasurer's office, not merely as a direction to that officer in his duty, but the Treasurer's office was to serve as a public place of deposit for the assessments. That before the publication in the newspapers, the selectmen's return of the assessment might be resorted to by the land owners to learn the amount of their several taxes; and it might at all times serve as a check

Doe

V.

Whitlock.