Beacher v. Bray ( 1792 )

The plaintiff claimed these cattle upon the ground, that when the defendant took and sold them, there was nothing due for taxes, but that they had all been paid by a piece of land which the defendant had levied upon, and advertised to be sold as the law directs; but on the day of sale the defendant was so unwell that he could not attend the vendue, he wrote a letter and thereby adjourned the vendue to a future day, and then attended and sold said land to one Pardey.

The question of law upon which this case turned was — "Whether this was a valid sale, and whether the collector had right thus to adjourn, the vendue.

The jury found a verdict for the plaintiff, from which the court dissented, and gave their opinion upon the question of law. The authority of the collector is "by statute, and that authority must he pursued.

The statute is — That the collector shall distrain goods and chattels if to he had, hut if no goods or chattels can be found, or shall he tendered, he shall attach the real estate of such person, if to he found within his precincts, etc.

That when real estate shall he taken as aforesaid, the officer taking the same shall proceed to sell and dispose thereof at public auction, sufficient for payment of such taxes charged against the owner, and to satisfy the legal cost and fees. Provided nevertheless, that the time and place of sale for payment of such taxes shall he advertised by the collector, three weeks in some public newspaper in this state, at least six weeks before such sale.

Here it is expressly required that the time and place of sale should be advertised three weeks in some public newspaper in this state, at least, six weeks before such sale; and the collector cannot by letter or otherwise alter the time and place thus advertised and fixed; nor will the law validate a sale made at any other time or place. This may appear to be an inconvenience, but the law has made no provision to remedy it. Had the collector attended and opened the vendue, and no bidders appeared, he might doubtless have adjourned, but that was not the case.

Dyer and Wolcott, JJ., were of a different opinion. The jury adhered to their verdict.