1821.

Thatcher

V.

Powell.

peace, for 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 himself, 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 thirteenth 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 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, the "Court shall enter up judg

ment 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 recognised 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 judgment itself, or in the previous proceedings.

In this case no such report appears to have been

1821.

Thatcher

V.

Powell.

1821.

Thatcher

V.

Powell.

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 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 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' Lessee v. Washburn & Russell, reported in 5 Haywood, 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.

1821.

Thatcher

V..

Powell.

1821.

Randolph

V.

Barbour.

Feb. 12th.

(PRACTICE.)

RANDOLPH et al. v. BARBOUR et al.

An equity suit, where an appeal has been taken from the Circuit Court to this Court, but not prosecuted, will be dismissed upon producing a certificate from the Court below, that the appeal has been taken and not prosecuted.

Mr. 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.

The COURT, stated that the case was within the spirit of the 20th 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."

a Vide new rule of Court of the present term. Ante, Rule XXXII.