
    Kinney v. Beverley.
    April, 1808.
    Forfeiture of Land — Non-Payment of Taxes — Statutory Requirements— Lands were not lia ule to forfeiture
       for non-payment of taxes, under the act of December 27, 1790, unless they had been assessed and listed by the commissioners of the revenue, returned to the auditor of public accompts by the sheriff or collector, and advertised by the treasurer, as directed by the 4th section of the same act, incorporated into the 34th section of the act of December 13,1792.
    Venire Facias De Novo — When Not Granted. — A venire facias de novo ought not to be granted, (at a term subsequent to that, at which a special verdict was rendered,) on the ground of an affidavit of a witness, who had been examined before the Jury, stating that they had not found certain facts con-formably to the testimony which he gave, or that their verdict was in other respects contrary to evidence.
    Same — New Trial — Difference between. — Note several diversities between a venire facias de novo and a new trial.
    Ejectment— Objection to Title Deeds. — In ejectment, the Jury having found 20 years possession in the plaintiff, an objection to one of his title deeds that it was not indented, and expressed no consideration, is not sufficient to prevent a judgment in his favour.
    This was an action of ejectment brought by Beverley, in the District Court of Staun-ton, for certain lots in the town of Staun-ton in the county of Augusta; in which there was a special verdict finding the following facts:
    *1. A patent to William Beverley, John Randolph, and others, dated September 6th, 1736, for 118,491 acres of land, comprehending the lots in question.
    2. A deed-poll from John Randolph and others, patentees as aforesaid, dated September 16th, 1736, whereby they released to William Beverley, and his heirs forever, all their right, title, and claim, which they then had, or by any means might have in the before mentioned tract of land; in which deed no consideration whatsoever is mentioned; '*but it was recorded in the General Court the 15th of October, 1736.
    3. That the original patentees were seised and possessed as the law directs; and that William Beverley was also seised and possessed as the law directs; and being so seised, died in 1756, having first made his will, &c.
    4. That Robert Beverley in the will mentioned, and who was the lessor of the plaintiff, was the only son and heir at law of William Beverley; and that on the death of his father, he was seised and possessed of the lands in the declaration mentioned as the law directs.
    5. That the lessor of the plaintiff, before the year 1782, appointed Thomas Lewis his agent to superintend the estate in the lands called Beverley Manor; (the first mentioned tract of land;) that the commissioner of the taxes in 1782 called upon Lewis to return an account of the lands and lots in Augusta county, to which the lessor of the plaintiff had title, in order that they might be assessed and taxed, and that the said agent refused to return the lots in the declaration mentioned.
    6. That no taxes ever were paid for the lands and lots in the declaration mentioned since the year 1780.
    7. That Jacob Kinney, pursuant to an act of Assembly in such case made and provided, did, on the 19th day of June, 1794, make three locations on the said lands and lots; each of which commenced in these words; “June 19th, 1794. Located for Jacob Kinnej' by virtue of part of a land-office treasury warrant, JSTo. 17, dated June 11th, 1794, issued to Archibald Stuart, under the Sth section of the Sth chapter of the acts of 1790, and the land law of the 17th of December, 1792, which warrant is assigned to the said Kinney,” &c.
    8. That grants regularly and duly issued to the said Jacob Kinney for the lands and lots in the declaration mentioned; and that he was seised and possessed thereof as the law directs.
    *9. That the lots are within the limits of the town of Staunton.
    10. That the commissioner or commissioners of the land tax in the County of Augusta did not value the said lands.
    11. That no account was ever returned of them by the said commissioner or commissioners to the proper officer for collecting taxes for the County aforesaid.
    12. That other lands of the lessor of the plaintiff in the County of Augusta were returned by the commissioners of the said County for taxation, and that the taxes thereon bad been duly paid by Archibald •Stuart from the year 1789 to the riresent time, and that it was known to the collectors of the taxes, from time to time, that Stuart did and would pay the taxes of the lessor of the plaintiff.
    This special verdict was found April 3d, 1798; and the cause was continued on the docket until April 10th, 1802, above four years; — when the Court gave judgment for the plaintiff. A bill of exceptions was then offered to the opinion of the Court, founded upon two affidavits made the same day; stating that, on the “trial of the cause,” (that is, as it must be understood, on the argument of the special verdict,) the defendant moved the Court to set aside the special verdict, and award a venire facias de novo; alleging that the fact respecting the said Beverley’s agent’s failing to return his lands in Augusta County to the commissioner, was not found agreeably to the evidence before the Jury when the special verdict was rendered, as would appear by the affidavits of Joseph Bell, and of the said Kinney himself; as also for the additional reasons stated in the last mentioned affidavit. The substance of the said affidavits need not be more fully stated, as they seem not to have influenced the decision of this Court, to which Kinney appealed.
    The preliminary question in this case (for which see 1 H. and M. p. 531,) having been settled, the cause was argued on the merits, at great length, by the Attorney-General and x'Randolph for the appellant, and Wickham for the appellee, at November term, 1807; and afterwards at March term, 1808, by the same counsel for the appellant, and by Williams for the appellee.
    On behalf of the appellant it was contended,
    1. That a venire facias de novo ought to be awarded, because the facts stated in the special verdict were not such as were given in evidence, according to the affidavit of Joseph Bell. The Jury omitted the important fact that Beverley was a non-resident of the County in which the lands lie. It was important to shew this, in order to account for the application to his agent; and to shew that that application was sufficient to charge him, for that fact not appearing in the verdict, it might be argued that application should have been made to Beverley in person. Another reason for a venire de novo was that the Jury had not expressly found that Kinney’s warrant issued on payment of the consideration of one dollar per acre, required by law. This indeed might be presumed from their finding that he made his locations pursuant to the act of Assembly; but, if this was not sufficiently explicit, there ought to be a venire de novo.
    2. That Kinney had legally acquired title to the land which had been forfeited for non-payment of taxes. By the 35th sect, of the act of December 13th, 1792,  which section was nearly a transcript of the 5th sect, of the act of 3790, c. 5.  The failure to pay the tax for the space of three years was a sufficient cause of forfeiture, and any person might acquire a title to the land so forfeited in the manner prescribed by the law establishing the land-office. The circumstance that the lands were not listed made no difference; for Beverley’s agent refused to list them; and to exempt them from forfeiture would be to permit a man to avail himself of his own wrong. Besides, there is no exception in the law in favour of lands not listed. Indeed, the act of December 19th, 1794, sect. 3,  declares that no lands shall be deemed to have been forfeited for non-payment of taxes, unless the returns and notices required by law have been made and given ; but this is only a legislative ^exposition of the meaning of the act of 1790. The Legislature cannot pass a declaratory act to explain an act of Assembly, so as to have a retrospective operation; for it is the province of the Judiciary only to expound the laws. The act of 1790 had been in force three years and a half before Kinney’s locations, which were made in June, 1794. The act of December, 1794, could not take away his vested right.
    Although the act of December 13th, 1792, was suspended in its operation until the 1st of October, 1793,  yet that of 1790, of which it was a transcript, continued in force; for the doctrine is settled in the case of Harrison v. Allen,  that a subsequent law repeating a former law is to be considered as a continued stream of legislation, and that, such subsequent law being suspended, the former continues in force.
    Under the words of the act of 1790, no judicial process is necessary to vest the forfeiture. If such process had been intended, the Legislature would have specified it: but the law is express that the land is forfeited, and liable to location as other vacant lands which certainly may be located without any judicial inquiry. The act of 1785, c. 83, 
      which is copied from magna charta, and declares that no freeman shall be deprived of his freehold, “but by lawful judgement of his peers, or by the laws of the land, ” could not preclude the' Legislature from passing an act having the effect now contended for; that act being no part of the constitution or bill of rights, and not more obligatory than dny other act of Assembly : and even according to that act, a freehold may be taken away by the “laws of the land.” Coke, in his readings on magna charta,  says, that these words signify “process or due course of law but, surely an act of Assembly legally passed may have the same effect. Where a man fails to pay his taxes, his personal estate, it is admitted on all hands, is liable to be taken and sold without process. Why not also his land, where the law says so? If the proceedings are irregular, he may bring a suit to recover it, and have all the benefit of a trial by *Jury. Actions to try the validity of sheriff’s sales are frequent. Under the act of 1781,  and that of 1787, c. 42,  the practice always was to sell lands for non-payment of taxes without the interposition of a judicial inquiry: the sheriff was the sole judge, at the time, whether the land was liable to be sold or not; but if he acted improper, suit might afterwards be brought. No passage in our constitution applies to this subject; neither is its spirit opposed to the Legislature’s dispensing with Jury-trials in certain cases: for it does not establish that mode of trial universally, but only says that, ‘in controversies respecting property, and in suits between man and man, the ancient trial by Jury is preferable to any other, and ought to be held sacred.”
    3. That no estate passed by the release from Randolph and others to William Beverley, the deed being not indented as required by the act of 1710, c. 13, sect. 1, which was repeated in the Revisal of 1733, p. 257, and in that of 1748, c. 1, sect. 1,  and no consideration being mentioned. This case is not like that of Currie v. Donald ; for there the deed began “This indenture,” &c. It may be said that no good reason can be given for requiring indenting; but still it is law. The want of consideration is an objection equally strong; for neither a feoffment nor a release enures otherwise than to the use of the feoffer or releasor, unless it be made on sufficient consideration.
    On the part of the appellee, in opposition to the 1st point, it was said that a venire de novo is one thing, and a new trial another; that the former is granted only where there is some defect in the proceedings, or some omission in the finding of the Jury which renders it impossible for the Court to render judgment; but a new trial is granted where the verdict is contrary to evidence. Let it be admitted that Kinney, in this case, intended to move for a new trial, it is a question worthy of consideration whether a motion for a new trial can be made at a subsequent term, it being very inconvenient to allow such a. practice. If the *motion, however, had been regularly made, the Court ought not to have granted it, unless from the whole evidence, it would have been necessary to the justice of the case. The single affidavit of Bell could not enable the succeeding Court to judge of this; and in fact, all that was actually proved by that affidavit was found by the Jury.
    In opposition to the 2d point, it was contended that the lands were not liable to forfeiture for non-paj'ment of taxes unless regularly listed, the taxes demanded by the officer, and payment refused. It should have appeared that the directions of the 4th sect, of the act of 1790, before referred to,  which required a list of the insolvents with the amount of the tax due from them respectively to be furnished by the Clerk of the Court to the collector of the tax, &c. had been complied with.
    The law is that the forfeiture shall take place, in case the tax be not paid. What tax? Surely that which has been duly assessed and imposed. But when the lands have not been listed, no tax has been assessed and imposed upon them. Let it be supposed that a descent was cast on a person not knowing it, or that a person should own so much land, as not to know his lands to be forfeited when no demand of the tax was made. Such a case might easily happen, and the owner of the land might not know to whom or what he was to pay. It could not be the intention of the law that, under such circumstances, he should lose his land. Besides, the owner was not required by the law at that time to return a list of his lands, but only of his personal property,  It was the duty of the assessors to have gone on the land and valued it.
    
    The title, too, of the act of 1790, is “an act to amend the act entitled an act to remedy abuses in the manner of selling lands for the payment of public taxes.” This shews that the Legislature had in contemplation only lands which were liable to be sold for taxes, which lands not listed were not. But in any event, to subject the land to forfeiture, the tax should have become due after the act of 1790 went into effect, and have continued unpaid three years. Now, that act commenced in force in January, 1791; the tax of *1791 became due the 31st of December, 1791, and was not payable into the treasury until the 1st of October, 1792. Three years’ taxes were therefore not due and unpaid before October, 1794. Yet Kinney made his locations in June, 1794; several months too soon. Besides, the 5th section of the land-office law provides that no warrant shall issue for forfeited lands unless the person applying for the same shall pay in consideration thereof at the rate of one hundred dollars for every hundred acres. Kinney ought to shew (what does not appear in the special verdict) that he complied with this law. It is not sufficient for him to shew a patent. He must shew that all his previous proceedings were regular. If his had been an original patent, this would not have been necessary; but when he claims on the ground of a forfeiture against another preexisting patent, the case is otherwise.
    The act of 1790 could not vest the forfeiture without an inquest of office. There should have been at least an inquest of instruction to shew that the Commonwealth had the right. Before the revolution there were two offices, one of entitling, the other of instruction, without one of which the Commonwealth could obtain no title to lands which had once been patented. The Legislature could not have intended a forfeiture without office found, because the party might have applied at the Auditor’s office and paid the taxes if they had been listed; and, if not listed, might have inquired of the proper officer whether he had an3' land-tax against him, and been told there was none.
    In answer to the third point, it was urged that the objections to the deed of release were of no consequence, since the Jury had found more than twenty years’ possession in William and Robert Beverley, which, of itself, is sufficient to maintain an ejectment.
    Curia advisare vult.
    
      
       By an act passed the 27th of December, 1790, (Sessions acts of 1790, c. 5, sect 1, p. 5, and Rev. Code, v. 2, Appendix No. ix, p. 106,) all laws directing lands to be sold for the payment of taxes were repealedby the 5th section of the same act it was declared, that in case the tax on any tract of land should not be paid for the space of three years, the right to such land should be forfeited and vested in the Commonwealth; and any person might acquire title thereto in the same manner as for waste and unappropriated lands on the eastern waters, (see Sessions acts of 1785, c. 42, p. 32. and Rev. Code, vol. 2, Appendix No. x, p. 146.) This section, as well as the 2d, 3d, and 4th, were incorporated in the revisal of 1792, (Rev. Code, vol. 1, c. 83, sect. 34, 35, p. 133, 134,) with this difference; that instead of acquiring titles to lands thus forfeited, in the same manner as for lands on the eastern waters, that is, by paying at the rate of 251. per hundred acres, they were to be acquired in the manner prescribed by the general law, establishlngithe land-office, which acquired the payment of one dollar per acre for forfeited lands. By an act of 1794, (c. 21, sect. 3, p. 15, of Sessions acts; and Rev. Code, vol. 2, Appendix No. ix, p. 125,) there was a legislative exposition of the 34th section of the act in the revisal of 1792, (which indeed contained the matter of the 2d, 3d, and 4th sections of the act of 1790, above referred to,) by which it was declared that no lands shall be deemed to have been forfeited nor shall they be forfeited for the non-payment of taxes, unless the returns and notices prescribed by the said 34th section shall have been, or shall be made and given. By an act of 1795, (Rev. Code, vol. 1, c. 187. sect. 9, p. 345,) instead of a consideration of one dollar an acre to be paid for lands forfeited for the non-payment of taxes, as prescribed by the 5th sect, of the act of 1792, (Rev. Code, vol. 1, c. 86, p. 142,) a person might obtain a warrant for locating them by paying the price at which they stand charged on the commissioners’ books. By an act of 1802, (Rev. Code, vol. 2, c. 20, p. 23,) it is declared, that when the taxes on any tract or survey of land shall have remained unpaid for the space of two years, such land shall be forfeited to the Commonwealth, and title thereto may be acquired as for waste and unappropriated land, (that is, by paying the consideration of two dollars per hundred acres. Rev. Code, vol. 1, c. 86, sect. 5, p. 142,) and not as for forfeited land. But this act never went into operation; for, before the expiration of the time when entries could lawfully be made under it, another act passed, suspending its operation till the first day of March, 1807, (see Rev. Code, vol. 2. c. 79, p. 106.) and, finally, at the session of 1806, (Rev. Code, vol. 2, c. 109, p. 136,) another actpassed declaring that lands thus forfeited should not be liable to location, but might be redeemed by the former owner at any time within three years after the forfeiture shall have accrued, by paying the taxes thereon, and 25 per cent, per annum interest, if redeemed within the first year; 50 per cent, if within the second; and 100 per cent, if within the third. — Note in Original Edition.
    
    
      
       Rev. Code, vol. 1, c. 83, sect. 85. p. 134.
    
    
      
       Rev. Code, vol. 2, Appendix No. ix, p. 107.
    
    
      
      
         See Sessions Acts, 1794, c. 31, Rev. Code, vol. 3, Appendix No. ix, p. 125.
    
    
      
       See Rev. Code. vol. 1, p. 293. c. 150, sect. 1.
    
    
      
       3 Call, 289.
    
    
      
       See Rev. Code, vol. 1, c. 15, p. 18.
    
    
      
       2 Inst. p. 50.
    
    
      
       Ch. Revisal, p. 153.
    
    
      
       Rev. Code, vol. 2, Appendix No. ix, p. 95.
    
    
      
       See ed. of 1690, p. 143.
    
    
      
      
        2 Wash. 58.
    
    
      
       Rev. Code. vol. 3, Appendix No. ix, p. 107.
    
    
      
       See Ch. Revisal, p. 59, 60.153,178. and the act of January 31st, 1804, Rev. Code, vol. 3, p. 68, 69, by which for the first time the owners of lands were required to list them.
    
    
      
       See the act for equalizing- the land tax, Ch. Revisal, p. 177, and Rev. Code, vol. 1, p. 437.
    
    
      
       Rev. Code, vol. 1, c. 86, p. 142.
    
   327 ^Monday, April 25. The Judges delivered their opinions.

JUDGE TUCKER

having stated the case, as above, proceeded as follows. As to the first point made by the counsel for the appellant, they endeavoured to confound a venire de novo, and a motion for a new trial; but they are very different things: they agree, indeed, in some things, but differ in many. They agree in this — that a venire de novo must be awarded in both cases, and that the Court may, or may not, grant either of them. But they differ, first in this that, a venire facias de novo is the ancient proceeding of the common law; a new trial is only a new invention, introduced on account of the severity of the judgment in attaint, to avoid which it was thought better to proceed in a milder way; and so new trials were introduced. They likewise differ in this respect, that new trials are generally granted where a general verdict is found; a venire facias de novo upon a special verdict. But the most material difference between them is this; that a venire facias de novo, must be granted upon matter apparent upon the record ; but a new trial may be granted upon things out of it, if the record be ever so right; if the verdict appear io be contrary to the evidence given at the trial; or if it appear that the Judge has given wro'ng directions. In either of these cases, a new trial will be granted: but it is otherwise as to a venire facias de novo, which can only be granted in one or the other of these cases. 1st. If it appear, upon the face of the verdict, that the verdict is so imperfect, that no judgment can be given upon it. 2d. Where it appears that the Jury ought to have found other facts differently, Now, in this case, the motion for a venire facias de novo was not founded upon matter apparent upon the record, but upon matter suggested by the affidavits presented to the Court four years after the trial. The defendant must have had a great reliance on his own memory, to impeach the verdict, at that distance of time, on the ground that it did not state a *pai"ticular fact, as it was proved by a particular witness, and that witness must also have had great confidence in his own accuracy and recollection, at the time of delivering his testimony, to have been positive that he related every circumstance respecting an ancient transaction, which he might, after such a lapse of time, be called upon again to state. If, then, the motion was. intended as a motion for a new trial, I think the Court decided right in refusing to grant it. If, indeed, upon examining this verdict, it should appear to be so imperfect as that no judgment can be pronounced upon it, there must be a venire facias de novo. But, if enough appears upon the face of it, either to shew that the plaintiff hath no' right to recover, or that the defendant hath no title to retain his possession, the neglect of the parties to produce evidence of other facts, however important, or of the Jury to find those facts, will afford no reason for a venire facias de novo. I shall therefore proceed to examine the second point.

2. Were those lands liable to be located by the defendant, and a patent obtained for them, upon the facts found by this verdict?

This is a question of such general importance to the whole community, that it cannot receive a more deliberate and full discussion than it is entitled to. In as much as the whole landed property in the Commonwealth may be subjected to forfeiture by the mere neglect of ministerial officers employed in ascertaining and collecting the Commonwealth’s taxes, unless this Court shall make such an interpretation of the laws as may obviate the danger.

I shall briefly remark that, under the first acts which passed for establishing a permanent revenue, in case payment of the taxes were not made on or before the first day of June annually, the sheriff was au-thorised to distrain the lands or slaves, goods or chattels, which might be found upon the lands, and in the possession of the person indebted or failing, notwithstanding such lands, slaves, goods or chattels, should be comprised in any deed of ^mortgage: and, if the owner should not pay the taxes within five days, the sheriff might sell the same, “or so much thereof,” as would be sufficient to discharge the taxes for ready money: but, if the same should not sell, in the opinion of the sheriff, for three-fourths of the value, then it should be sold on one month’s credit, giving six days notice of the time and place of sale, by advertising the same at the church, or other public places in the parish; with a proviso, that, where the sheriff should seize any lands, he should sell the smallest number of acres that the lowest bidder would pay the taxes for: and the proprietor, or his agent might appoint what part of the tract should be sold; and, in case of failure on his part, the sheriff was to sell that part which, in his opinion, could do least injury or prejudice to the tract; and, where other sufficient distress could be had, no distress should be made of the lands. And, in case of unreasonable seizures, the party was entitled to his action, and to full costs, in case of recovering any damages. A subsequent act entitled “An act to remedy abuses in the manner of selling lands for payment of public taxes,” declares that such sales shall be made on the premises, and any sale made otherwise shall be void; that no sale of lands shall be made if other sufficient property can be found in the County; that, before any sale shall take place, notice thereof shall be given, at least eight weeks, in the Gazette of the public printer, and be advertised at the Court-house of the County on the first day of two several Courts, and proclamation made at the door of the Courthouse between 12 o’clock, and 4, of those days; that the sale be conducted by the high sheriff in person; and that he shall give notice to the commissioner of the land-tax, at least thirty days before the sale, to attend the same; and, if the lands should not yield one half the value thereof, (regard being had to the estimate thereof in the equalizer’s books,) the commissioner was directed to bid for them on behalf of the public, with a power of redemption to the proprietor. And all sales, where the sheriff, or any deputy ^sheriff, or any person in trust for them, or either of them, should be the last bidder, should be considered as held in trust for the payment of the taxes, and might be redeemed by the proprietor by payment of the taxes, charges of sale, and interest at the rate of six per cent, and ten per cent, damages. Then came the act of 1790, c. S, by which so much of every act as directs the sale of any lands for the tax thereon was repealed, and the sheriffs who had failed in compelling their collections were directed to conform to the regulations prescribed by that act. Before noticing its provisions, it may be proper to state some other directions contained in antecedent acts.

By the act for equalizing the land-tax and that for amending the acts for establishing a permanent revenue, commissioners were to be appointed in every County, whose duty it was to value all the several lands in their respective Counties, and to, make a list thereof in a book, in which the names of the owners, the number of lots, (if in a town,) and the yearly value thereof, the quantity of other lands, the value thereof per acre, and the amount of the tax thereon, were to be inserted- — and all alienations, or alterations, from time to time noticed therein. Each commissioner was to retain one of these lists in his own possession, so long- as he should continue in office: and was to furnish the sheriff with a copy thereof, on or before the last day of May, annually; by which the sheriff should proceed to collect from every person, therein named, the sum charged in the said ¡book, and no more. So that the commissioner’s book certified by the clerk of the county, according to the directions of the act, was to be the guide of the sheriff in collecting the taxes: and, without it, no collection could be made; which circumstance is recognized by the legislature in the Sessions Acts of 1792, c. 27, in which it is recited, that ‘ ‘ whereas no commissioners had been appointed in several Counties, and from the neglect of commissioners in returning a list of the taxable property in several other Counties, by reason whereof no collections of the public taxes have been or could be made,” &c. The act of 1786, *c. 6, made it the duty of the commissioners, also, to furnish the Clerk of the County, and the Solicitor or Auditor with copies of the same book of the land-tax; to be subject at all times to the inspection of all persons. And that deposited in the Auditor’s office was to be admitted as evidence in the General Court, for the amount of the taxes charged to the sheriff.

Such being the preliminary steps required by law, the act of 1790, o. S, substituted the following provisions in lieu of those for which the sale of lands for payment of taxes had been formerly authorised:

1. That each sheriff shall, at the time he returns a list of other insolvents, return also a list of the lands within his County, or corporation, where he cannot find effects within the same, belonging to the owner or tenant, sufficient to satisfy and pay the tax. And, if the Court shall be satisfied of the truth thereof, they shall admit the sheriff to make oath thereto, and direct the same to be certified to the Auditor of public accounts, together with the names of the owners of each tract, and the place of their abode, where the Court can obtain such information.

2. The Auditor shall credit the same in account for the land-tax with the sheriff— and, where it shall appear to the Auditor, from the certificates of the County Courts, or from any other information, that any person chargeable with the land-tax resides, or hath slaves, or personal property, in some other County, he shall certify the amount of his land-tax to the sheriff of the County where he resides, or hath slaves, or other property, and debit such sheriff with the amount, who may make distress for the same, and shall be accountable therefor, as for other taxes of his County.

3. A list of these insolvents, with the amount of their taxes, respectively, shall be furnished by the clerk of the Court to the collector of the tax for the succeeding year, and he shall also transmit a copy thereof to the Auditor, who *shall debit the collector therewith; and he shall distrain and account for the same, as for other taxes.

4. In case the said taxes cannot be collected the succeeding year, the like return upon oath, shall be made, as before prescribed; “and, thereupon, the treasurer shall cause to be inserted in the Virginia Gazette, for three weeks successively, the names of such delinquents, with the quantity of land, the situation thereof, and the taxes due thereon.” Then follows this important clause:

5. That in case the tax on any tract of land shall not be paid for the space of three years, the right to such lands shall be lost, forfeited, and vested in the Commonwealth : and it shall be lawful for any person to acquire a title to any lands so forfeited, in the manner prescribed for acquiring titles to waste and unappropriated lands on the eastern waters, by an act entitled, “An act to dispose of the waste and unappropriated lands in the Commonwealth of Virginia, on the eastern waters, with a saving in favour of the rights of infants, femes-covert, and persons non compos mentis, who are allowed three years to save the same from forfeiture, after such disability is removed.” This act hath been consolidated, with that which respects the duty of the commissioners of the land-tax, and the powers and duties of the sheriffs and collectors, in the general law of 1792, Rev. Co. c. 83.

I shall consider this clause of the act first; and my first inquiry, respecting its operation and construction, will be, when, and in what manner, lands, upon which taxes have not been paid for the space of three years, shall be lost by the owner, and vested in the Commonwealth.

By the 20th article of the Constitution of Virginia, all escheats, penalties and forfeitures, heretofore going to the king, shall go to the Commonwealth, save only such as the Legislature may abolish, or otherwise provide for.

At the period of the revolution, the crown was entitled to a quit-rent of two shillings for every hundred acres of land granted by it, which was reserved by the express *terms of the patent; and, if this quit-rent was not paid, for three years together, the act of Assembly declared, that the patentee should not only lose the land, but also all benefit of the rights upon which he obtained his patent. But no patent could be granted by reason of such forfeiture, until judgment and certificate thereof obtained from the General Court, in the manner prescribed by the act. These quit-rents were abolished by the act of May, 1779, c. 13, so that there no longer remains any cause of forfeiture of lands in Virginia, by reason of any condition in the patent or grant thereof. And, by a subsequent act, forfeitures of lands, for treason and other otiences, were wholly abolished. So that no forfeiture of lands in this Commonwealth can take place, but in consequence of the positive provisions contained in some public statute; except in the case of aliens purchasing lands therein.

I have always considered that, from the period of our revolution, the Commonwealth succeeded to the political character of the king, in all cases whatsoever; and that its rights, privileges, and remedies, were to be, in general, ascertained by the standard of the common law, as it respected the political character of the king, where the same were not controuled, or enlarged, by the express terms of the constitution, or the clear and definite provisions of some statute of the Commonwealth. On this ground I have held, that the Commonwealth (like the king in his political character) could neither take, nor grant any thing but by matter of record, The reason given by the latter is, “that it is part of the liberties of England, and greatly for the safety of the subject, that the king may not enter or seize any man’s possessions, upon bare surmises, without the intervention of a Jury.” This reason is equally applicable to our government as to a monarchy; or rather, in a government founded upon the principles of liberty, the reason is stronger than in any other. There is one exception, however, to this rule in England; it being particularly enacted, by the statute of 33 H. VIII. c. 20, that, *in case of attainder for high treason, the king shall have the forfeiture, instantly, without any inquest of office. The period when this statute was made was under a blood-thirsty tyrant, whose Parliaments were but abject registers of his arbitrary edicts. Nevertheless, in the construction of this very statute, it hath been held, that if one be attainted of high treason, all his lands, by virtue of that statute, are presently in the king, that is, the estate in the lands is in the king, without office found: but, it doth not appear to the Court of Exchequer of what lands the person attainted was seised, at the time of his attainder, or after ; and, therefore, there goes a commission from the Exchequer, under the seal of that Court, to make such inquiry; and this is called an office of instruction; and this is a sufficient record to instruct the king of the certainty of the land, by which it may be put in charge, And, before that statute, it was held, that, if a man was at-tainted of high treason by act of parliament, and it was thereby enacted, that he should forfeit all his lands, yet that that was not sufficient to vest any freehold in deed or in law, in the king, until an office found; for the words “shall forfeit” were only sufficient to vest a right, or title in the king, And the same doctrine is recognized by the unanimous opinion of the Court, 3 Co. 10, Dowtie’s case. And, in both these cases, the authority of Brooke, tit. Office, 17, was relied on, to this effect. Where a man is attainted by Parliament, and thereby it is ordained, “that all his lands shall be forfeited, and it is not said, they shall be in the king without office, there they shall not be in the seisin of the king, to grant over, without office, for it does not appear of record, what lands they are.” So, in the present case, although the taxes be not paid on certain lands, the property of A. in the County of B. for the space of three years, whereby the right to those lands is forfeited to the Commonwealth, yet, until an office be found, or some other legal proceeding had, (if any such can be pointed out,) to shew the certainty of the land, the seisin ^'thereof is not in the Commonwealth to grant over; and, without such seisin, any grant thereof would be void by the common law; for the ■Commonwealth having but a right, and not a seisin, cannot make a grant of lands, as was adjudged in Dowtie’s case, 3 Co. 10. And this construction of the act is confirmed in my opinion, by the remarks of Sir Edward Coke upon that clause of the statute of Westm. 1, c. 31, which relates to tolls, by which it is declared, that if excessive toll be taken in any city, &c. the king shall seize the franchise of the fair or market, until it be redeemed by the owner. ‘‘But,” says Lord Coke, “this is intended upon an office found; for, in statutes, incidents are ever supplied by intendment.”

Many reasons, in support of this opinion, may be drawn, X conceive, from the act itself. All the description which it requires is, the name of the owner, the quantity of land, the tate per acre, and the amount of the tax thereon: its situation, boundaries, and every other circumstance relating to it, or to the title to it, are subjects foreign to the purposes of collecting the taxes thereon, though indispensably necessary to be k$iown, in order to a grant thereof. This, it may be supposed, may be supplied by the location and survey. Now, let it be granted, that a man hath two tracts, of 500 acres each, in a particular County, upon one of which he hath paid the tax, and hath failed to do it upon the other. Shall anj' person presume to enter upon whichsoever of them he pleases to make his location? And, without something more than the act requires, I cannot see how the Commonwealth could ascertain the particular tract that may be forfeited. The conclusion which irresistibly presses itself upon my judgment, is, that, previous to any grant, or location thereof, there must be some further inquiry made; and, as at present advised, that this must be done, either by an inquest of office, or some other mode to be provided by the Legislature, whereby the certainty of the lands may be shewn, and the seisin, as well as the right vested in the Commonwealth.

*A further reason in support of this opinion arises from that principle of moral justice, recognized by Magna Charta in England, and by the statute of our own Commonwealth, (which is a transcript from the former,) whereby it is declared, that no citizen shall be disseised of his freehold, or be condemned, but by lawful judgment of his peers, or by the laws of the land; the meaning and intention of which certainly is, that no man shall be deprived of his property, without being first heard in his ■own defence, In the case before us, the plaintiff has been disseised of his lands, and they have been granted over to a third person, without an3' notice or warning whatsoever.

But, if no such previous inquiry be nec-essary, hath the defendant shewn that all that was necessary to be done, on the part ■of the Commonwealth, hath been done; so as to preclude the owner of the lands from objecting that the non-payment of the taxes on these lots is not imputable to himself, "but to the ministers and officers of the Commonwealth?

By the 32d section of the present law, if payment be not made by any person chargeable with the land-tax, the sheriff may dis-train the slaves, goods and chattels which may be found thereon. Ought it not to be shewn, that no distress, sufficient to pay the taxes, could be found- on the premises? Ought it not to be shewn, that the owner had nothing upon which the distress could be levied in the county; since the power of distraining for the tax is not limited to the lands themselves, but may be exercised upon any property in possession of the delinquent, by the same section?

Ought it not to have been shewn, that there were commissioners of the tax appointed in the County of Augusta, or perhaps in the town of Staunton, within the limits of which the verdict finds that the lots are? (and, although it is not found that Staun-ton is a corporation, (as is the fact,) that circumstance might furnish ground for a venire facias de novo, but could not otherwise affect the case, X conceive;) *and that they made a list of the lands, and delivered a cop3' of it to the sheriff, (or sergeant of the town,) as his guide in the collection of the taxes; and that this was done, from year to year, as the law requires, for three years successively? And if, in fact, no commissioners were appointed, or, if they neglected to return a list of the taxable property in the county (or town) pursuant to the act, have we not the authority of the Legislature itself, declared in 1792, that no collection could be made in consequence of such omission?

Those parts of the special verdict which relate to Mr. Bell’s acting as a commissioner in 1782, and his application to Mr. Lewis as the agent of Beverley, have nothing to do. with this case. They relate to a period, when no forfeiture could be incurred of the lands themselves, without an actual seizure thereof, by the sheriff, by way of distress. The present defendant claims under a forfeiture of the whole lands, incurred by mere delinquency, without seizure. I, therefore, throw them entirely out of the case.

Again: Are all the directions of the act of 1790, which are consolidated in the act of 1792, to be wholly disregarded? If so, hew is the fact of delinquency, on the part of the owner of the lands, by non-payment of the taxes, to appear? Eor, by that act, it will be observed, the sheriff is directed to return a list of the lands within his County, (where he cannot find effects within the same, belonging to the owner or tenant thereof, sufficient to satisfy the tax,) to his County Court; and, if the Court shall be satisfied of the truth thereof, they shall admit him to make oath thereto. This shews that the Legislature does not repose implicit confidence, in the diligence, or fidelity of the sheriff; since, without some such, precaution as the law requires, he might find a double motive for neglecting to collect the tax; for in case a forfeiture of the lands could be incurred by the mere non-payment of the taxes, he would be the first person informed of it, and might be the first to locate, and *obtain a grant for the lands, thus forfeited, through his own neglect or worse conduct. The only fact, found in the special verdict, serving as a foundation for a grant of these lots to the defendant, is, that no taxes ever were paid for the lands and lots in the declaration mentioned, since the year 1780. On the other hand, it is expressly found, that the commissioner or commissioners of the land-tax in the County of Augusta, did not value the said lands; and that no account was ever returned of them, by the said commissioner or commissioners, to the proper officer for collecting the laxes for the County aforesaid. This alone is sufficient to defeat the defendant’s right, to locate the lands, or to obtain a patent for them; because, without such valuation, and return thereof, to the collector of the taxes, no collection could have been made, as emphatically expressed by the legislature, in the act of the same session before referred to.

But, were it otherwise, the defendant hath not pursued the proper course in making his locations. They bear date the 19th June, 1794, and, consequently, ought to have been founded upon the laws then in force and existence: but they are expressly alleged to be made by virtue of a land-office treasury warrant, dated June 11th, 1794, issued to A. Stuart, und?r the Sth section of the Sth chapter of the acts of 1790, and the land law of the 17th of December, 1792. Now the act of 1790, c. 5, was repealed by the act of 1792, c. 83, ed. 1794. Consequently no location could be made, nor any land-office treasury warrant issued, in pursuance of that act, in June, 1794. If it be objected, that the provisions contained in the two laws are precisely the same, and therefore the misrecital of the statute is of no importance, a twofold answer may be given. First, that such misrecital, made on the suggestion of the party, would be fatal in a patent or grant from the Commonwealth, Secondly, that the act of 1790, c. 5, sect. S, declares, that a title “to lands forfeited for non-payment of taxes, may be acquired in the manner prescribed by “An *act to dispose of the waste and unappropriated lands in the Commonwealth of Virginia, on the eastern waters ;” that is to say, by paying the consideration of twenty-five pounds for every hundred acres, and so, in proportion, for a greater or smaller quantity: whereas the land-law, passed in 1792, expressly declares, that no warrant shall issue, to be located on any lands which may vest in the Commonwealth on account of the non-payment of the taxes thereon, unless the person applying for the same shall pay, in consideration thereof, one hundred dollars for every hundred acres; and, for the better direction of the surveyors, the register shall express in the warrant what sum was paid therefor. Now no sum is expressed to have been paid: but the warrant referring to the former act, which fixed the price at 251. per 100 acres, creates a violent presumption that no more was paid, although 301. was the consideration required by the law then in force: the Commonwealth was therefore deceived in its grant of this warrant, which thereby was utterly void; as it would have been in the case of the king, 2 Bl. Com. 348, or, if not void for that cause, it was void for the uncertainty as to the sum actually paid.

The defendant’s patent appears to me to be liable to the same objection of uncertainty, and insufficiency, from the omission to recite the manner by which the Commonwealth had become entitled to these lands, which it is now found were patented seventy years ago, and have been held by the plaintiff, and those under whom he claims, upwards of half a century. There is not so much as a surmise of the person to whom they were formerly granted, nor of the manner by which the Commonwealth became seised of them again, and entitled to make a grant thereof. The suggestion of forfeiture for non-payment of taxes, if such a suggestion can be inferred from the reference to the land-office treasury warrant, referred to but not recited in the preamble of the patent, is the suggestion of the patentee, and not of the Commonwealth, and therefore is to be taken *'most strongly against the party making it; and, since it contains no manner of certainty, as to any of those particulars which were necessary to be known, in order to a proper and effectual grant thereof from the Commonwealth, the patent itself appears to me to be absolutely void, for this reason, also. For these lands having been once granted by the crown, by patent, (which is a, record of a high nature,) the cancelling, avoidance, or forfeiture of that grant, ought to appear in any subsequent grant thereof by the Commonwealth. For the first patent, is conclusive evidence of a title against the Commonwealth, until such avoidance or forfeiture be shewn; and, when shewn, it ought to appear upon the face of the second patent, that it might not be presumed that the Commonwealth was ignorant of the first grant, and so deceived in its grant to the defendant. As, if the king made a lease for years, or for life, and afterwards granted the land to another in fee or in tail, without reciting the lease, the last grant is void. So, here, the crown having granted these lands to Beverley, and the Commonwealth (without noticing that grant, and without mentioning for what cause the lands were revested in the Commonwealth) having undertaken to grant the same lands to the defendant, and no title in the Commonwealth appearing, or being shewn by the patent, the patent is void for that cause.

But it may be objected, as the patent mentions, that by virtue of such a land-office treasury warrant as that here spoken of, the lands were granted, it shall be presumed they were forfeited for non-payment of taxes; and the rather, because the Jury have found that the grants regularly and duly issued to the defendant. To this I answer, that this is a conclusion in law, which the Jury have undertaken to make, and not matter of fact, if, by these words, they mean to say more than this, that the patent issued from the proper office, and with the usual solemnities. But, they having found the patent in hasc verba, the Court will decide, whether it be a regular and proper patent; or not.

*But, it may be objected, that the patent having issued with the usual solemnities, the Commonwealth’s officer shall be presumed to have acted regularly in issuing it. But no such presumption is ever made in favour of a ministerial officer, where recourse can be had to the authority under which he has acted, and to the thing itself, that is done; for that would be to substitute confidence in the officer, for the due performance of his duty. Now, when omissions or misrecitals appear in a patent, there is no room left for presumption. Besides, there is one particular in which the Commonwealth’s grants differ from many of the king’s grants. The latter were often made, “ex mero motu et certa scientia,” of the crown; in which cases they were always construed more liberally in favour of the subject. But the Commonwealth’s grants of lands are invariably founded upon the suggestion of the party praying the patent; and, therefore, are always to be taken most strongly against him.

There is yet another objection to this patent, which I cannot pass over: it is not in the form prescribed by the 42d section of the land-law; nor does it mention the sum paid into the treasury, as that form requires. And I hold that, where a statute prescribes a particular form to be observed in any case, that form must be strictly pursued. How such a deviation from it has crept into the present patents, I have not thought it necessary to inquire.

3. As to the third point — that the release from Sir John Randolph and the other original patentees to Beverley, being made without any consideration, and not being indented, nothing passed thereby, I think it unnecessary to be considered, as it is expressly found that William Beverley died seised in 17S6, and that Robert, his son, entered and was seised from that period, until the time that Kinney obtained his patent in 1795; a period long enough to establish the right of possession in Beverley, and consequently to enable him to recover in this ejectment.

*Much as I have said in this case, which, from its general importance, I considered as entitled to the most mature deliberation, I have omitted many things, upon the second point, which have occurred to me in support of the opinion I have given upon it. And, upon the whole of this case, (in whatever view considered,) I am of opinion, that the judgment of the District Court ought to be affirmed.

JUDGE ROANE.

The clause under which the locations in question were made, was first introduced into our laws in the year 1790. It is contained in an act to amend the act passed in 1787, intituled, “An act to remedy abuses in the manner of selling lands for the payment of public taxes.” Both the acts of 1787, and that of 1790, relate entirely to lands duly listed and assessed by the commissioners. The act of' 1790, in particular, in the sections immediately ’ preceding the one in question, makes-certain provisions in relation to the taxes due on such lands. The terms “the tax,” mentioned in the fifth section, have before-several times occurred in the preceding sections, and there plainly related only to lands-which stood taxed upon the commissioners’ books; and it is a sound rule of construction, that the same phrase occurring in different parts of the same act, shall generally be understood in the same sense. This construction loses none of its force when we consider the case as upon the 35th section of the act of 1792, which agrees verbatim as to the points in question, with the clause in the act of 1790. It not only follows immediately after a section relating only to assessed lands, but is also contained in the act for ascertaining taxable property, &c. whereby it is made the duty of the County commissioners to list and assess all lands within their several Counties. It has been said,- that the omission to return lands to the commissioners is an offence of a higher grade, than the omission to pay the tax: while this might be safely admitted, yet, in the case of an highly *penal act, we cannot extend the construction thereof beyond the actual case which is provided for. By the act of the 26th of December, 1792, it will be seen that the neglect of the commissioners in returning a list of taxable property was taken up by the Legislature, and provided for. This subject was, therefore, before the Legislature at the same time with the act immediately in question ; and, although, in fact, the latter act passed a few days before the former, this Court will judicially know, that that may have been merely accidental; and that in this session of re-visal, the whole subject of our laws was depending at the same time before the Legislature. On what other ground than this, did it happen, that the commissioners’ act of this session now in question, which passed on the thirteenth of December, 1792,. referred in the 35th section thereof, to the land-law of the same session, by its title, which did not pass until the seventeenth day of the same month? This whole subject then was depending at the same time before the legislature; and therefore, as another act related to this subject, the 35th section now in question did not mean to extend to this case of an omission to give in land for assessment. Even after-wards, when it was found that this evil required legislative interposition, it was only done by extending the powers of the commissioners, and enabling them to ascertain and value lands, not given in, by the best lights in their power, ,

My opinion, therefore, is, that the legislative construction upon this subject, manifested in their declaratory act of 1794, is the true construction of the act now in question; and that no lands are forfeited under the same, unless they have been assessed and returned pursuant to law. It is here to be remarked, that the annual tax-laws impose a tax, per centum, on lands, “for every hundred dollars value, agreeable to the equalizing lawand that, in relation to lands charged on the commissioners’ books, it is *easy for the owners thereof to know the amount of, and to pay their respective taxes, which is not the case in relation to lands which have not been assessed.

On the merits of this case, therefore, the decision is right, and no occasion exists for a venire de novo. I should give the same opinion that I now do, if Beverley, the ap-pellee, were found to have resided in Augusta.

I do not meddle with the other points in the case, except to say, that I cannot for a moment doubt the power of the legislature to pass the law in question ; nor can I think that, under the influence of that power, and the actual provisions contained in that law, there is any pretence lo say, that locations under the act must be preceded by inquisitions of office. Such a construction would defeat the great end and object of our acts, in this particular; would greatly affect our revenue; and can only gain colour by giving to the principles of the common law, in respect of inquisitions, (as applying to ordinary cases,) a supremacy over the positive acts of our Legislature.

While, therefore, I feel myself bound to differ in opinion from the Judge who has immediately preceded me in respect to some of the positions taken by him, (which, however, I do not hold it necessary to enter particularly into at present,) I concur with him, for the reasons I have just stated, that the judgment should be affirmed.

JUDGE) FLEMING.

I concur in opinion, that the judgment of the District Court ought to be affirmed, on the ground that the lands in question, not having been listed, nor entered in the commissioners’ books; and return thereof by the sheriff or collector of the tax, and notice by the treasurer, as prescribed by the 34th sect, of the act of 1792, intituled, “An act prescribing the mode of ascertaining the taxable property within this Commonwealth, and of collecting the public revenue,” not having been made or given, those lands never became forfeited to the Commonwealth, and therefore were not subject to the location of the appellant.

Judgment affirmed. 
      
       1 Wilson, 68, 56.
     
      
       D. y. 1781, c. 40, and Oct. 1783, c. 8.
     
      
       1787, c. 42.
     
      
       Oct. 1782, c. 19.
     
      
       1786, c. 6.
     
      
      See Rev. Code, vol. 1, p. 454, Appendix, c. 6, sect. 3.
     
      
       Sessions Acts, 1785, c. 42.
     
      
       Vide Tuclrer’s Black, 288, note 13.
     
      
       L. V. 1748, c. 1, s. 29, 30.
     
      
       Edit, of 1794, c. 74, s. 31.
     
      
       Plowd. 213, 484; FincR, 82; 3 Bl. Com. 259.
     
      
       5 Co. 52, Page’s case.
     
      
       Plowd. 486, Nichol’s case.
     
      
       3 Inst. 231.
     
      
       3 Inst. 19, 50.
     
      
       C. 27, Sessions Acts, Rev. Code, 1 vol. p. 454.
     
      
       Ed. 1794, c. 83, s. 34.
     
      
       Sessions Acts, 1792, c. 27, s. 3.
     
      
       Dyer, 77, Ibid. 195, 10. Go. Rep. 110.
     
      
       1785, c. 42.
     
      
       Ed. 1794, c. 83, sect. 5.
     
      
       1 Go. 45.
     
      
       Sessions Acts of 1790, c. 5, sect. 5, and Revised Code, vol. 2, Appendix, No. lx. c. 17, p. 106.
     
      
       Rev. Code, vol. 2, Appendix, No. ix. c. 9, p. 95.
     
      
       See Sessions Acts of 1794, c. 21, p. 15, and Rev. Code, vol. 2, Appendix, No. lx, c. 34, p. 125.
     
      
       Rev. Code, vol. 1, c. 83, p. 134.
     
      
       Sessions Acts of 1792, c. 27, sect. 3, and Revised Code, vol. 1, Appendix, p. 454.
     
      
       P. 128, of Rev. Code, vol. 1.
     
      
       Acts of 1795, c. 5, p. 12, and Rev. Code, vol. 1, c. 185, p. 342.
     
      
       See also the act of Jan. 31st, 1804, Rev. Code, vol. 2, p. 68, 69.
     