
    
      John Culver vs. William Hayden.
    
    Where private property is diverted or affected by the operation of a special act of the Legislature, the requisitions of the act must be strictly pursued.
    This was an action of ejectment for lot number twenty one, in Albany, and was tried in the County Court October term, 1827¿' on the general issue, Royce J. presiding. On trial, the plaintiff offered in evidence a deed from John SJcmner, collector, to him-self, dated January 17,1825, and with said deed, and in support of tho same, he also offered in evidence the act of the legislature. passed the — day of-- 1821, granting a tax of three cents per acre on the town of Albany, for the purpose of making and repairing roads, and building bridges in said town — ^-the record of the proceedings and judgment ofOrleansCountyCourt,allowing the accounts of the committee appointed to superintend the expenditure of said tax, and a copy of the records, relating to the vendue sales of the said John Skinner, as collector of said tax. The defendant objected to said deed, and the accompanying evidence^ aforesaid, and insisted that the)*- did not show a title in the plaintiff. 1. Because the deed aforesaid did not describe the lot in question, as belonging to any original proprietor’s right. 2. Because the place where ,the legislature held their session, at the time of granting, said tax, is omitted in the collector’s advertisement. 3. Because no rate bill, or list of delinquent lands, appears to have been furnished by the committee to the collector till the day of sale; and because the same was signed by two of the committee- only. 4. ■ Because the place where one of the newspapers^the Rutland Here'll) was printed,does not appear by the record of the collector’s advertisement. But the court admitted said deed, with the accompanying evidence aforesaid, as establishing a title in the plaintiff, and directed a verdict for the plaintiff. To all which the defendant excepted, and a bill of exceptions was allowed, and the case now came before the court for a hearing on said exceptions.
    ; Mr. Mattocks for the defendant. 1. The place of the session of the legislature, when the tax was assessed, does not appear in’ the collector’s advertisement: the form and the enacting part of the 5 th section of the act of 2d November, 1796, (p. 662.) expressly requires this; and the positive requirement of such a statute may not be dispensed with. — 1 Cowp. 29, Rose vs. CroJce: — ■ 1 Bur. 377. — 4: Bur. 2244. — 3 Johns. C. 108, Gilbert vs. Columbia Turnpike Company.
    
    ■ 2. The place of.holding the parliament,at which a statute was made, is material at common law, and a misrecital is fatal, even after verdict. — 1 Ld. Ray. 211,343, Burt vs. Bothwell: — which shews that this requirement of our legislature was not accidental, nor unmeaning; but that they chose to give a technical form,and enacted that it should be followed.
    .3. No rate-bill, or list of delinquent lands, was furnished by the committee to the collector, until the day before sale. By the Stir section, if any proprietor or land holder, does not pay in labor or money to the committee within the time by them advertised, it is the duty of the collector “ to advertise such delinquencies.” How can he do this, or know bn'what lands to receive the tax, without it rate-b,ill ? It is said to have been decided that a rate-bill is ¡necessary, ’ ■
    4.“Tb advertise such delinquencies,” would seem to be to name the delinquent-owners ¿Hands"; which was not not done,but only calling generally on those that had not paid, leaving the owners to find, out ,as, they may, as to what land they are delinquent; whereas, 'if ibe owners of lands were -named or described, the owner would be able to detect the error of his agent, and yet save Ms lands. But it an ay be said ¿the form given dispenses with this.Then let the form be complied with. This strengthens the first objection 5 here was neither the form nor substance of the two requirements.
    5. The place where one of the newspapers was printed was «iot recorded by the town clerk. This also is a positive requirement of the law. — Statute 11 JYov. 1807, s. 3, p. 667.
    6. Only two of the committee acted or signed the advertisement. it does not appear that all of the committee ever metí If they had,it might have been good on general principles (though doubtful, as this was a ministerial act.J Yet even where the trust is public, all must assemble to make the acts of the majority binding. 1 B.if P. 229, Gridley vs. Parker, and the authorities there citedv to wit, 3 T. R. 592, Rex vs. Beeston. — 6 T.R.368,Withnéll vs. Gartham. Further, by the ^th section of the act JYo. l,p. 664, power is given to any two of the comniittee to lay out roads m unorganized towns, and to any one to superintend the labor; and this tends to restrain, or rather shew, that the other powers were not intended to be given to less than the whole.
    7. The land was sold by lots, not by proprietors’ names. It should have been both. This is believed to have been the general practice-
    
      Mr. Young, for plaintiff. 1. Defendant objects to Culver’s deed, because “ it does not describe the lot of land in question, ■“ as belonging to any original proprietor’s right.” It is not necessary; in as much as both plaintiff and defendant claim the same lot, under the same division. — 1 Chip. R. 396. Bush vs. Whitney. — 1 Aik. R. 16, Mitchiel & Turner vs. Stevens.
    2d. exception — “Because the place where the legislature held their session at the time of granting said tax,is omitted in the collect- or’s advertisement.” The place of holding the session, became wholly nugatory and surplusage, after a permanent seat of the legislature was established by law3 as all persons were then bound -to know the place. There could he noplace hut Montpelier. The year in which the tax was granted gave all the information that could be necessary. And inasmuch as the reason had ceased for inserting the place of session, the Jaw had ceased also. -
    
      3d, exception — “Because no rate-bill or list of delinquent lands appears to have been furnished by the committee to the collector,till the day of sale; and because it was signed by two of the committee only.” The law is entirely silent on the subject. There does not appear to be an intimation in the law that a tax-bill shall be furnished to the collector at all. If the law had made it necessary,the law would probably have given some direction, as to the iorm thereof; and also whether it should be signed,andby whom. But even though the presumption should be raised that such ought to have been the case —that it would at least have been a formal mode of proceeding; yet,even this idea of formality would not raise a presumption that it should be furnished before the day of sale; or that it should be signed by more than two of the committee, or by any of them. This pretended requisite,not being contained in the law, does not of necessity become a part of the record; and its existence, (if necessary) might be proved by parol — which parol evidence was offered by plaintiff — but adjudged unnecessary by the court. It would surely be hard to make void the law, or to inflict penalties by virtue of a law, for supposed omissions, or nonfea-sances, that were neither prohibited or enjoined by the law.— Much more so, to take away the rights of persons for the mere fancied omissions of the officers acting under the law.
    4ht exception — “That the place where the Rutland Herald,[one of the newspapers,) was printed does not appear by the record of the collector’s advertisement.” There can be no more force in this exception than in the second,viz .* the place of the sitting 'of the Legislature. There could be no reason for inserting the place where the Rutland Herald was printed — therefore, there could be no law for it. The place where said paper is printed, is- contained in the name or title of the paper .itself — but that is not the case with many other papers. There is, therefore, a sufficient directory to the paper ; and as to the other part of the index, or direction, viz : the date, volume, fee. it was as necessary in that paper, as in others, and is of course inserted in the record of the town clerk. Therefore, if we undertake to account it a defect — it is one whereby no possible evil could accrue, any more than from that contained in the, 2d exception. The statute, p.667 is, that the cleric (town clerk) shall record the advertisements, the title, volume, num-her, date, and place where printed. Now we contend this has been done to every intent of the statute. No particular words are required by the statute to be made use of. If the clerk had said “at Rutland” a question might have arisen whether it wa3 the town or county of Rutland. I know it would be possible to mark iniquity so strictly that no flesh could stand. For if the town, county, and state, had been named in the record, a question might have arisen, whether in the East or West village.— And surely, the particular village would have been the place where the paper was printed. I had supposed the fulfilment of a law, so far as to prevent all possible evil,whether direct or consequential (except from one’s own seeking or imagination) to be sufficient.
   Turner J.

delivered the opinion of the court. This is an action of Ejectment brought for lot number 21,in the town of Albany. The plaintiff claims under title acquired under a vendue deed, executed by John Skinner, collector of a land tax granted by the legislature, on the town oí Alb any,at their session in 1821. The execution of the deed, and defendant’s possession of the land,is admitted. Tothe validity of the deed, the defendantmade four objections, which are a part of the bill of exceptions. Two of the objections! the court consider to be fatal, and therefore deem any notice of the others unnecessary.

1. The deed is objected to because the place where the legislature held their session at the time when the tax was granted, was omitted in the collector’s Advertisement; and 2d. because the place where one of the newspapers, (the Rutland Herald,) was printed, did not appear in the town clerk’s record of the advertisement.

The act granting the tax in question, (see pamphlet of the laws of 1821 p. 152,; after enacting that a tax of three cents per acre shall be laid on all lands in the town of Albany, (certain lands being excepted,) and appointing a committee under whose direction it is to be expended, and a collector to collect it — provides,that “said committee and collector are to govern themselves in collecting and expending said tax, in conformity to the laws of this state, in such Cases made and provided.” The law here' referred to, is the act for the regulatidtf pf particular land taxes. — (Statute, page 662.) By this general act, prescribing the duties of the collector in case of delinquency in the proprietors of lands* subject to such tax, it is made his duty to advertize such delinquencies in certain papers. & form for the advertisement is> prescribed as follows i “Whereas, the legislature of Vermont,a£ their session at- — • in the year —*—*■ assessed a tax,” Sic .-and the statute goes on to enact that “the blanks in the form of the advertisement' herein before directed, shall he filled with the place of the séssion of the legislature when the tax was assessed.”

Young, for plaintiff.

Mattocks, for defendant.

And afterwards, p. 667, When the collector has completed bis-sale,he is required to make a return of his proceedings,to be recorded in the proper office for recording deeds of lands in said township — and the town clerk is required to record the advertisements at length, and the title, the volume, the number and the' date of the papers in which they wen inserted — -and the placet where suck paper Was printed„

That the collector should have followed the form, and thei clerk made the statement of the place where the paper was printed a part of the record, are positive requirements of the statute i and a compliance with these requisitions must be regarded as á condition precedent to the conveyance of a good tide, by the ven„, due deed. Where property is aíiected, or the title to it divested, by the provisions of a special act of the legislature, the requirements of the act must be strictly followed. 1 Burr. 377—4 Burr, 2244.—1 Cow. 29.—In the present case, the operation of the special statute was to divest the defendant of his property, on his failure to perform á duty created by the statute, and on the performance of certain acts prescribed to tlfe officers required to collect the tax and record the proceedings. The performance of these acts is the condition on which the property was divested f and it is not for tire court to enquire whether the provisions of the statute were reasonable, whether a compliance with them might not be 'dispensed with, without injury to the defendant — hut’ whether they, have been made ; and if so, they must be literally pursued, New trial granted.  