HASZAtt.i)'S (iAZl'2'l’l't:., MAY 24.

A “H. ad.’ ,. sharia deed 3. 5 yet, mm- re uired to be given the execution of men one in this and every other British_Colo- ny, any 'udicisl decision therefore relatingto their val dity or to. the forms which are cusp- tial to the perfecting such conveyances oug t to be thoroughly ki_io_wn. N9 5P°l°S¥ ‘P “l']'° trust required for giving theyudglnenﬁ 0 3 0 Supreme Court in Dec 4!. X90. "-‘- 13°33’! ‘W-v which will in future constitute a leading case in the subject of selling lands by the a‘he_ri under writs ofcxecutiou. Many P90 1° _"”“8}“° that a Slieriﬂi-1 deed gives an indo easihle title ofitsclf, but this is a mistake, from the case now reported it will be seen. that unless the she;-ill‘ follows out the requisites of the statute his deed is worthless. The judgment is well worth the perusal of all our readers to whom the purchasing of land is an object. A verdict had been given for the Lessee of the l_’laintili' and it rule nisi to set aside the \'el'(IlCi.l|n enter judgment of nonsiiit had been obtained it was after having the rule argued atgi-cat length that the judgment was given.

1N THE SUPREME COURT.

Easter Term, A. .‘l_l-.-1353- Doe «I. Janus Yea, vs. Silas Bells and others.

Judgment of the Court delivered by Mr. Jus- tics Peters. ,

This -was an action of ejectment brought to recover ilands sold by the Sheriff‘, under 11 Vic., cup. 7, for non payment of land tax. And two questions were rs‘

so every divine, the

terms of the power mu plied with."

meat to particular persons to take awaya man's estate against his will, therefore it must be strictly pursued.

’l‘ho impression has we believe been, that the ‘provisions respecting notices in statutes empowering Sherilis to sell lands, are not di- rectory but impcratlive. and which spams recog- nized b the Le is uture as y 7 V. 4.c.-l, the onuii of proviiig want ofnotice is thrown on the party impeaching the Sheritfs deed; and‘ that'tlie same strictncss of proof wﬂs deeiiie-2 necessar undersimilar Actsin New runswic appears yfrorn the judgment of Parker J. in Linton vs. Wilson 1 Kers. Rep. 243, who in spcpking 0fl1H'l,eACt similarfto our Act of? 4, c. ,sa s,“" necessit o rovin certain. cts which tyhe law had nlll.d0y|'(3q[illSit0 gto a Sheriii‘s sale was the mis_chiet'. to be remedied, and what did this arise from? The diliiciilty of "::’°";:38.."'”" :3“ :::::""a"=' °' rt. P°.*:.°'; wo sac. iimayeoua whether the rule laid down by Lord lllansiield 159 - _ _ in Rex. cs. Lonsdalc, vis : that unless the thin

1st- . I3 ll cmmnded “Pi "'9 Pl“-mil“ 3"" to be done is of the essence of the rovisiog 50'1"‘! i° Pm“ ‘ll-"ll “W "°i_'°°' °f °“'l° ""‘l“‘,'°d is directory, is not equally applicable to all con- by the Act Md bee“ d“l.Y SW9“ by the Sh°"'E- veyances made under the directions of statutes 24- Th“ ii “PP°‘“'°“l "mi "‘° “ml ""9 3°‘ whether the party making them has (as in the described at the sale by motes and b°““d3 5' case of Insolvent assignees) the legal estate or direeted by the 'i'_t|i sec. of “I9 40% acts as the dense of a statutable power. In For the l’lainti_li‘ it was ‘contended _that the p0,u.ce ,.,_ north, 2 A_ and E, 95,T,,,,nton P’°Vi‘l°“ ""P°°t'"8 "°l"’°" m°§'°lY,d""’°i° 3 says, " ’l‘lie distinction between directory and audithut if 1103: “'0 W30‘ 0!‘ ']°i‘°° '5 ¢‘"f9d J imperative statutes has been long known. an the 924 580-. Md ill“ 0"“ lf 1‘ ""9 “°‘,"\ “)9 early instance in which it was taken was Rex absence of any evidence to the contrary 1} “'1” vs. S arrow, 2 Strange, I understand the dis- b°dP"°5“'3|°¢lo ‘EN "'9 Sh"'E “ted “Sh”! tglnction to be that a clause is zitircctpay where an rave us no ice. t e revisions contain more ma er 0 ircc ion ‘ lnkﬂex. v. Lonldllﬁ. 1 Bill" 448-_ L.0?d_M'-0"“ andpnothing more, but not so where they are 5014 I019. “ i-5°“ 15 “ _l‘“°‘"1 d"‘"'°l*°“ b°' followed by such words as are used here‘, yiz : tween circumstances which are of the essence am; my thing done contrary to such revisions Of“ thins i"~“l“l"°d t9 1” d°"° F’! “'1 A¢i‘°f shall be null and void to all inten s.” T Parliament and °lW|°5 m°“!7 d“'°°i°'y""1h° legal estate in this wasin the trustees, but the precise time in man cases is not of the es- lgnguge of the Judge seems to apply to all lento. While "0 011° 0"?’ ‘h°“8l,‘f till“ “'0 Wm‘ cases where negative _words are not used, and her ofoverseers _was director} Dwarris in his treatise on statutes seems to In Doc d. Philips, v. Evans. 1 C. and M_ 456, pug bog}, 01".“ of ca... on the ggmg foogmg, the Insolvent Act 1 Geo. 4. 0- 119, I. 7, du'0ci- And in Dec d. Roberta es. Mcysten, 110cm. ad that.ths _iieralassigi_iee_should sell any real [,,,w_ mp, 505 (17 Jar; Dig. 39) where an-in~. estate of the insolvent within _tW0 _l||°'“h' “"93 closure Act directed that the award should the assignment by public auction, in such inan- [,3 mm]. within 6 yang, gn nmml made after ner and at such place as the major art of the “M; gm, V" [,3]; good, C.-"well J, gayg, creditor! oftho m99lV9[|t Wh°_lh°“ '_'3°_ml’_l¢ "'1‘his statute is-not like the case of an ordi- togetllef 00 “I 3°‘-'90 "' ‘"'l"°8 P“!’1'9l¥'d-In nar submission toasbitration with a proviso the London Gazette. s_h9uld. under ll“, be? 0|’ that the awards shall beuiade within ii certain, their hands approve; in MI f|_¢¢_|0|1 0‘ 91°09'39"‘ t-me. The Act directsrcertain land to be ‘in- on a conveyance item In ll!!! 89. m3d°“""“ u used and certain persons are to ‘be appointed years after the niﬂlgnmenﬁg 3 3°‘ P“’°f°£| uomrnissionsrs to-make allotments; then-she compliance with_ the revisions of the Act the clan” fo|]owg enacllngrllnt an gum-d-. l _ no ice and meeting 0 creditors. 8&0-. 30 dF)'9 made within a certain time, I think this clause, be ore the sale, the provisions were held merely is di,.ec.0,,y '°n_‘y.n V 9 d3¥°°l°'Y “ml ii” Q “nay ‘''°°'"°d' 1” “mt It is however unnecessary to' decide the pain case tlipiessencc of he Flltlllllg to be dpneplzas the in the raven‘ cue’ “'3 V3,, think we want I310 '10 °°"V‘‘-.V‘"3°° ° ?.P‘°P°’ -7’ ° "7 notice cured b the 2..d see. which enacts “Win”? “.°‘i"“ Md '“°°“"5' "°’*'° °“'7 °° “' “fl at no dinissioii 'of any direction contained N1 1"“ii,°"‘ it '“."'.‘ h°""°' be r°m”k?d"‘iii' this Act relative to notices or lorms of pro- ‘M ‘M leg“ °°l'".’t° m that en” 3"“ .'°"°d in cecding previous to any sale shall extend to “W “-‘ml-‘§"°° by '“'“‘° °f ll” ‘”'.3"m°"t {mm render such sale invalid, but the person guilty the insolvent, and the ussi cc did not thcrc- of “ch qm-union 0,. neglect 31,311 b, liable to f°1'° °°“V°Y ‘"'d°" “ "“"'“”b ° i3°“'°" . punishment therefor and shall answer the. In Perry vs. Bowes Ventri 300 and Elliot or. party injured, &c_n “_ was argued by the D335! 12! M°d' R°i" 3' “ °°'° from C°m"' Dfs. Counsel that this does not extend to a sioiicrs of‘_n Bankrupt was held no_t-to pass the one where no notice of mp, hm} ;,c,,,, given, bstate until the enrollme_nt'_ required by the In" on, ,0 case. of depwﬁw ,,0m,,' 1,“, 3“, statute, because the ‘ommissioners had not_the . < ‘ - '°s“...'"" 2. '°*:°:*.:°:‘.:,.. :::..cz°.': tes tue.an mus c with all the circumstances required._snd this distinction is alluded to in d. Phillips, vs. Evans, where on the Counsel observing that sheenrollment in these cases did not go to the essence of the thing, Bailey B., observed " that was a statntable conveyance not allowed by the Common law; the whole estate is here vested in the assignee: heis nota mere conduit pipe;" ‘gnd’ again, “ this is not the mere _exercise of a power; the exercise of a power is where I have a right to appoint over your property. if! have the legal estate l do not exercise a owcr." in Rex. at. llesliugﬁeld, 2 M. and ‘. 561 and Nanny vs. Gore. 3,l1\l. andxlf. 3?,

hich arose under l-in lish Inc osure cts. tie _ , goniniissioners acted iigndor a statatable power (0 PMS “'0 ""9 *0 “)0 P“Y'°l"|s°P. Wiihigr 55;“ and‘ the Proyiiliipps of tpio Act with respect to ;'l:1':d¢l‘l“:l|:l;<:_|';’l;°Di3“ni(lll:‘(’)l “‘::‘: l¥hie:l°th;°':m? not 0” W“ I“ mpem '0' ' l‘cll uncertain how is ‘it ossihlc to sav

In tho mm of ml“ 4?‘ land b L Shertlﬂcl iliiill: thelaiid described in the dedidis afterwards Chancellor Kent says, the doc connccc _ _d _ I _ “Orland sold and with the sale operates b way of execution of given WM “I0 I ﬁnilfl“ ll’l“‘°5 d .b d in’ no a statutablc power," Kent Com. 43l,and I1 “W39 n0‘. ‘P00 "0 4" ‘’3‘“'‘ ° ‘ the “me d,,°t,.i,,o, viz; elm: the she;-ill‘ lugs no deed never having been sold, cannot pass by

Act, irnetice df 20 days previous to the rule would be defective. if the section would care sash a notice, so it would a notice of one day, and if so, why not entire want of notice.

As to the 2d oint,the7th sec. enacts, “ That the Sheriﬂ or oroner before roceeding to sell‘ such lands shall ascertain and at the sale pub- licly declare the males and bounds tlierergf, as_ r- ticularly as the same can or may be descri ed, and shall iaake and execute to such purchaser a conveyance thereof." It was urged that this provision was directory also. but till! d06°|'ib- ing at the sale, the land he is selling. is clearly of the essence of the thing, the Sherilfis direc- ted to do, via: to sell the land, and it is the deed as connected with the sale which operates

_ _ _ ‘ the power out at the sale, how could wi I be void, if notice be not given accordingly, or any bidder know, whether the buildin

'. 9 .3 . M _dl diilt

impossi lo so to render the plain words of the -

the owner if present and

case that the sagacity of man can improvements were selling or not! Tie for- st be com- mer under the impression,

that his buildings and improvements were safe, might allow the

In Rex. vs. Croke, Cewp. 26, where a statute '“'_“d '° b° k."°°l‘°d d‘’‘"‘ F‘ 3 "nil" 9"” “nd gmpowaped c°mm;,.;o,,,," to take “mg (0,, afterwards (if the description giveafit the sale Road and it was amongst other things objected °_"“l‘l 5° M “ii d°l_lBl'l»€d from) a_slight varia- tliat the required preliminary notices had not 31"“ in “'9 flW_d 0i 4| 000330 .01‘ d1|‘“"C° mllim been given’ Lord Mansﬁeld Buy‘, it TM, is 5 include buildings. and . improvements worth special authority delegated by Act of Parlia- b““d'°d" “nd ‘Yl"“'h '5 ‘" r"°‘ “'1'-“Edi” l““'°

can the case in the mascot instance. the plaintiﬁ having _‘hought the land for £4, and now claiming the Dots. mill and improvements which must be worth a very much larger sum. It is further argued, that even if the see. is imperative the maxim oinm'ari'I¢_¢ssc ada applies, an that it must be resumed that the sale waspropcrly conducte . In Wins. vs. the East India Comp. 3 East 199 Lord Ellcnborough says " that the rule of law is, that where any act is required to be done on the one part, so that the party neglecting it would be guilty of a criminal neglect ol7duty,.in not liaviug-done it. the law presumes the atliriuative and throws the hurthen of proving the contrary, that is in such case.cl' roving a negative on the other side.” In oe Nanny vs. Gore, 2 M. and ‘W. 322 tho,notice’s' under the insolvent Acts were presumed. ‘So n- Doe d. Milburii 0:. gear 3 B. and C. 393 the notices under the -Insolvent Act were presunied—So iu Mannie the Eastern Counties ilailway,12, M. an . ‘-‘ 7 (8 Jar. dig. 45) where an Inclosure Actauthcrizcd the Commissioners to step up

5 la

stdp ed without the order of‘ two Justices of the genes, it was held that the award and re- cital of the order was suliicient prime aria cvidencethat the road was stopped by order of the Justices. Mr. Starkie, p. 935, lays down the rule, “ that u on proof of title every thin which is collatcrallto the title will be intende without proof. for although the law requires xactness iii the derivation of the title, yet where that has once been proved, all collateral circumstances will be presumed in favor-of the ‘ )1

n Fenwick vs. ‘Floyd cited 'l.‘in_gl Adams Feet. 301 (N. 1.) iris said .in an action of Ehiectmeat by the purchaser under a 5_heriii"s sale against a debtor who refuses to give_up th'e possession of the land. it‘ is incambentcm the

laintilf to produce the judgment and the Ft.

‘a. and to prove t 3 sale, which may be done. either by the deed .rom the Sheriifor a return of,tlse;li‘i. Fa. they are, sullicient to entitle him go recover.”

It would be attended with the greatest incon- veuicpcD.,ii«it were necessaryin order to make ‘out 'a"title to lands utider- ii Sh'eri‘ll"s deed, to provdtliat hll collateral ‘ matters rcqvslrcdby the Act respecting -the sale hhd ‘ been complied with; t such 1. title would not raiily be always doubtful. vonldv gbmomch more -iBi:eou,ro~;: it_ 595,0 r, si_iyco,_ it! ,it mi tpot g Ito‘ ovewhat tliegbegili declared a ea 12 months ago; it I i it'he ve_ to‘ rove, what was tic aréd or ‘done It'd hale which l's1d"take'ii place" 18 01"30 year! ago'.‘v" It appears to us, -that iivall conside-

iu' ‘entities of .this-kindiwliare tbe:aetion

9."

~'<‘

1"‘ E . °f I] brought recently after the sa,le..os wlici-e,the~

purchaser is in possession. and tliere.ure‘no circumstances to rebut the presumption, the maxim omnia rile one arm applies. In the resent case, the 1$Iaiatitf's titler was’-derived ‘roar’-_.the judgment, -Fi._- Fa.-and sale which lastbeing proved by the deeds, the mode of conducting it and the particular circumstances attending it (however necessary to its validity) were merely collateral matters, which under , he authorities r_cl'errei.l to,\i'ould be presumed to ave been rightly .(l0'I'|9.‘ But this is merely a resuni tion, and where, as in this case, the mstte‘r' s essential, negative evidence may con- tradict it by showing positively that the thing lllll was notidosie, br.ciscu.uistaaces~may raise a contrary presumption, and there throw the onus of proving that it was rightly done, back on the party in whose favor the pre- sumption would otherwise have been made. Thus in Rex cs. Haslingiield, 2 M. and S. 501 where an Inclesure Act ve Commissioners wer to set out boundaries of Parishes and ascertain the parochial locality of roads giving certain relimiiiary notices to the Parishes interested), it being shown that the Parish of Iiaslinghcld had continued to repair for 16 or 17 years, was held to do away with the pre- sumption, that all had been rightly performed and to raise a presumption that the notices had not been given according to the Act, be- cause if that were so, llaslingﬁeld ought not to have continued to repair , so in the King vs. inhabitants ofwastbrook 4 B. and (J. 73.), the description of the boundaries inserted by in- closure Commissioners in the Newspapers, dif- fering froin the description in the award prove

; ,1 gl l 1; the deed. The provisions of the 11th sec. :3il‘,i::.’.hl)¢i‘)‘ iii! Igngplhhdf dnlosii elsmdf (which was not adverted. to in the_argument) ] hold interests in land under a ‘i. Fa. also show, that this revision was intended to

“”d H“ ,, Jane. 6Jm-.302, be imperative. Byt at sect. the Sherili in se- mi‘; diialaggfy tloi the riilc which prevails in the lrciin ib°‘<ll"||"ilU ‘if “ d°f""l‘°"" “ma '9 b° execyution of powers contained in lndeutarcs sold.E rsquiredtchpve rtLgadrdfto‘ttl;c bllﬁliflllllgz

‘ d ' t as e an r w ii would “mm m“ where “ ‘hum ‘km! a tlQItm£!:0'l.il,niai'nCl1e‘i'0 i.s suﬁcient land remain-

that they had not followed the requisites of the Act and therefore had not pursued their power and consequently the award was hel void. In the present case, the Plaintilfcallcd the Deput Sherill to royc that he sold the land con- veyed y the (lee ; in one rt_ol'his tes'timon he states, that he sold the i entical piece_oflan mentioned in the deed, but in another part he »’..,tl|0-_k)cQllt] was t, and it is

a road with a proviso that no road should be 3

hp did not declare the ‘noise metes and bound: 0 _the land he was sel mg. _or.give such a cer- tilinl and rticulsr d_es4_.-nption of them as lwou chaos is it_to be distinguislied from other ands y which it was surrounded. We do not Il_9|n 10 say that it is necesss that the pro- cise courses and distances shou d ‘be declared, lb“ '"_Wld_ be one proper way ofdoing it, but if the bheriifdeclared that the land was bound. ed by certain known bounds, such for instance as bound by such a road or river in the front. on the one side by the land of A. and on the other by the land of B, and in the rear by some other known and ascertained boundary, we think that would be suliicieut, even perhaps though the exact quantity was know, but when he merely declares the locality. or that it is part_ofsueh a piece or trsetof land without particularly describing what part, which. up. pears to have been what was really dorm here, that is clearly insuﬂieient, both under this sec- tion Of the Act and also we think under the law as itstood. before, of which this section seems to us only an allirinance. Thus in Funny as dam. Masters or. Durant, 1 B. and Aid. -10, when the Sheriffs; return to an _Elegit statedtliat he had delivered an equal moiety ofa horse, the return was held void for I105 Uﬁiilng Out the moiety b metes and bounds. lira note toTil. Adams Eject.’ 301," it is said “ a Sherili's return to a Fi : Fa : which states a levy on part of a tract called, lie, is void for uncertainty cannot be set a by matter dc/mrs the return and sale under it resses no title. But a levy on a tractcalled, c., i : Fa : a ainst a person who was seized of a part 'of.suc tract.and a sale under it will pass his interest to the purchaser." , « it was urged by the plairrtilfs Counsel that this defect was also cured by it 22. sec.. but that see. only applies to proceedings previous to the sale, and can have no cifcct on wha should be done at the sale, if it did, it \V0lIl enable the Slieriﬂ to evade the requisites of the 7th see. and open ii door to all ‘the evils and nnyust practices which existed under the all made of selling. and which the 7th see. was intended to prevent. , We have considered this matter at greater length than was necessary for the decision the case imincdiatcly in hand, but from the ﬁequeiicy of these siiles ‘and the increasing number of titles depending upon them, it seeracd to us expedient that the construction of ‘the Act, the duty of the Sherilf in conducting than_i_, and the general principles of the law of agi one»: up licable to thaimshould bacon,- sidere _soniew at at large. , _ he ;Rala must be absolute.

alloiis-—-is the residence not merely of the body, but oftlic heart; it isa place for the affections to unfold amidevelope themselves; for children to‘ love, ‘a learn, and’ lay in ; for husband ‘and wife to 101 smilin ly ‘together and r'iia‘ke life in blessing." ‘The, bf all ambition sho‘iild‘,b,e to‘b_e‘,_lia py‘di li’din'c;if we are iipt ia

caiiiiotbe‘ha " '

Pill’ ‘ppy elsew ere. I,_ . , best proof oft . virtues ofa family circle to seen happy ﬁreside. v .

“ Ilv wifelis very attentive to the pigs,” said a gentleiiiaii the other "day, in the resence ‘ of ‘several’ ladies. -“That ac- counts for her attachment to you,” re‘- sponded one of the "fair dainsels. The gentleman suddenly ‘recollected having some business out of doors to_ trpinsactf WHAT is it you must keep, after you have given it. to another .'I——Your word. Wiiv is a lady en aged in netting like a ship, _in full 93. l‘1—-Because site is making so many‘ knots per hour.

A win, boosting of his temperate habits said, he never saw a glass of wine with- out his mouth watering.

A DECEPTIVE 'I‘itimi.—“Paddy, honey, will ye buy my watch ?” “What’s the price ?” “Tin shillings and a. mutcliin oftlie cratiir.” “Is the watch a decent one '2” “Sure, and I've had it twenty years, and it iicvcr yet dcsuvcd me.” "Well, licrc-.’s your tin, and ll0\V tell me, does it go well .7” “it goes faster than any watch in Coiiiiauglil, Minister, Ulster, or Lciiistcr, not barriii’ 1)iibliii.” “ Bad luck to yo, Mike, ilicii you have taken me in ! l)idii’t you say, it iiivir desuvod you?” “Sure and l did—iior did it— for I m'i:er depiudcd on it.”

“ Dick, how is it you, are always pos- scsscd of such astore of fun’! Where do you get it?" “I mziniifactiirc it.’ I can make it out of" nothing; for instance

wer to sell and convey land requires notice mg wraihhthe 1”,‘ ma “Fences. Now“,

,§,"§‘,:.‘,‘i".:' ¢';’l'li..'i:“i;i3"a'.'.iii.i,'°-3n"i..slii3ia.:he precise ads" on not news and peiatdd

poiute _ou_ __ quite clear from A the whole ofnliis, evidence that

[could make fun ofyou, but for friend.- 'stitp.’s -sake”. '

-ii