imprisonment of the body of the delinquent; the notice of sale is extremely short; and it would seem upon principle that greater strictness ought to be required than in ordinary cases. Who did the estate of Mrs. Hammond belong to? Did she die testate or intestate? If the former, who were the devisees? It might be that she made a will and devised her property to executors or trustees to sell, for the benefit of some third person. In the warrant in question, no one is designated as her legal representative. By the very terms of the law and warrant, the tax is a charge upon the person as well as the property of the owner. In the event that no goods or land could have been found, whose body would be liable to seizure under such a warrant? Is the officer at his peril to seize and imprison the right person, under such a vague designation? The same reasons assigned by the court for dispensing with technicality in the form of this warrant, may be applied with equal force to every other proceeding in the enforcement of the revenue laws of every State. It is said that strictness, in this class of cases, is "wholesome discipline;" but the rule laid down in Kingman v. Glover, is a bounty upon ignorance, a license to depart from the requirements of the law, and converts every tax collector into a petty legislator — arming him with a dispensing power in cases where it is inconvenient for him to follow the letter of the law. It will not be pretended that even an ordinary execution against "the estate of Mrs. Hammond" could be sustained for an instant. Yet a more lax rule is applied to a warrant to collect a tax, affecting not only the property, but the personal liberty of the delinquent. These reasons detract greatly from the authority of Kingman v. Glover, and sustain the opinion of the dissentient judges in that case. It has already been shown, that the deed is not evidence of the authority of the officer to sell, and that the onus probandi rests upon the party alleging the existence of the authority.L

1 Chapters 2 and 3; vide also, Doe ex dem. Morris v. Himelick, 4 Blackford, 471, note; s. c. 4 Blackford, 494.

CHAPTER XIV.

OF THE DISTINCTION BETWEEN CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENTS.

COURTS do not sit for the purpose of granting favors to parties, but to administer justice to them, according to the law of the land. While this general principle is universally conceded, it has been held that many requirements of a law may be regarded as directory.1 Lord Mansfield remarks, " that there is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory." 992 No case, however, attempts to point out what that distinction is, so as to establish a general rule of construction which can be relied on, except in relation to the time within which an act may be done. In such cases, the general rule undoubtedly is, that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as a directory requirement, unless the nature of the act to be performed, or the language used by the legislature, show that the designation of the time was intended as a limitation

1 Mussey v. White, 3 Greenleaf, 290; State Bank v. Buckmaster, Breese, 133; Vance v. Schuyler, 1 Gilman, 160; Day v. Graham, 1 Gilman, 435; Taylor v. Brown, 5 Cranch, 234; Craig v. Bradford, 3 Wheaton, 594; Stringer v. Young, 3 Peters, 320; United States v. Kirkpatrick, 9 Wheaton, 720; United States v. Vanzandt, 11 Wheaton, 184; Striker v. Kelly, 7 Hill, 9; Allen v. Parish, 3 Ohio, 187; Lawrence v. Speed, 2 Bibb, 401; Hayden v. Dunlap, 3 Bibb, 216; Bealls v. Guernsey, 8 Johnson, 52; Wiggin v. Mayor of New York, 9 Paige, 16; State v. Click, 2 Alabama, 26; Hooker v. Young, 5 Cowen, 269; Marchant v. Langworthy, 6 Hill,

21 Burr. 647.

upon the power of the officer. Where there is nothing in the nature of the power conferred, or in the manner of giving it, which justifies the inference that the time was mentioned as a limitation, it may be exercised after the day fixed. By a directory statute, it is not to be understood that no duty is imposed to do the act at the time specified, in the absence of a satisfactory reason for not then doing it, but simply that the act is valid if done afterwards; while a peremptory law requires the act to be done at the time specified, and at no other. This mode of getting rid of a statutory provision by calling it directory, is not only unsatisfactory, on account of the vagueness of the rule itself, but it is the exercise of a dispensing power by the courts, which approaches so near legislative discretion that it ought to be resorted to with reluctance, and only in extraordinary cases, where great public mischief will otherwise ensue, or important private interests demand the application of the rule. There is no more propriety in dispensing with one positive requirement than another; a whole statute may be thus disposed of when in the way of the caprice or will of a judge. It is usually much easier to do the act than hunt up reasons for its omission. Besides, it vests a discretionary power in the ministerial officers of the law, which is dangerous to private rights; and the public inconvenience occasioned by a want of uniformity in the mode of exercising a power, is a strong reason for bridling this discretion. It is dangerous to attempt to be wiser than the law, and when its requirements are plain and positive, the courts are not called upon to give reasons why it was enacted.3

1 People v. Allen, 6 Wendell, 486; Pond v. Negus, 3 Massachusetts, 230; St. Louis County v. Sparks, 10 Missouri, 117; Walker v. Chapman, 17 Alabama,126; Webster v. French, 12 Illinois, 302; Marsh v. Chesnut, 14 Illinois, 223; Billings v. Detten, 15 Illinois, 218; Thames Manufacturing Co. v. Lathrop, 7 Connecticut, 550; People v. Peck, 11 Wendell, 604; Ex parte Heath & Roome, 3 Hill, 42;. People v. Holley, 12 Wendell, 480; Colt v. Eves, 12 Connecticut, 243, 255; Mead v. Gale, 2 Denio, 232; Rex v. Sparrow, Strange, 1123; Rex v. Leicester, 7 Barnewall & Creswell, 6.

2 Vide ante, 55, 61.

Dillingham v. Snow, 5 Massachusetts, 557; Reeds v. Morton, 9 Missouri, 878.

The remarks of Judge Pope, in Mayhew v. Davis,1 are worthy of a place in this connection. In commenting upon the requirements of one of the revenue laws of Illinois, he proceeds to say: "But it is said that some of the requirements of the legislature are only directory, and may be dispensed with. Upon this it may be remarked, that a judge should rarely if ever take upon himself to say that what the legislature have required is unnecessary. He may not see the necessity of it, still it is not safe to assume that the legislature did not have a reason for it; perhaps it only aimed at uniformity. In that case, the judge cannot interfere to defeat that object, however puerile it may appear. It is admitted there are cases where the requirements may be deemed directory. But it may be safely affirmed, that it can never be where the act, or the omission of it, can by any possibility work advantage or injury, however slight, to any one affected by it. In such case it can never be omitted."

What requisitions are to be deemed conditions precedent, and what may be treated as directory, must depend upon a sound construction of the nature and objects of each regulation.2 No general rule can be laid down for the government of every possible case which may arise. The peculiar phraseology of each statute, the course of legislation upon the particular subject-matter, the local policy intended to be advanced, must all be duly considered. The application of this doctrine to tax laws is denied by many of the cases. It is said, that to

sustain a tax sale where the officer has failed to conform to the requirements of the statute, "is to transfer the legislative power to the sheriff, and so allow him to sell land for taxes, not in the manner prescribed by the written law, but according to his private notions of what is right, and would place at his discretion the property of every citizen of the State." 4

14 McLean, 213.

2 Hayes v. Hanson, 12 New Hampshire, 284.

8 Monk v. Jenkins, 2 Hill, Ch. 12.

Register v. Bryan, 2 Hawks, 17.

In Culver v. Hayden,1 the court say: "Where property is affected, or the title to be devested, by the provisions of a special statute, the requirements of the act must be strictly followed. The performance of these acts is the condition on which the property is to be devested; and it is not for the court to inquire whether the provisions of the statute are reasonable, whether a compliance with them may not be dispensed with without injury to the owner of the estate, but whether they have been made, and if so, they must be literally pursued."

And in McDonough v. Gravier,2 the court say: "Toullier, in his commentaries on the civil law of France, in treating of the nullities of contracts, divides the subject into, 1. Acts done contrary to law; and, 2. Omissions to pursue the formalities required by its provisions. This latter branch is subdivided into substantial and accidental formalities. When the formality prescribed is founded on natural equity, it is said to be substantial, and its omission carries with it nullity of the act. In our opinion it is of the essence of justice and natural equity, that when a forced sale of property is made under statutes, all formalities, which have the semblance of benefit to the owner, should be strictly complied with." This principle is maintained by the New York authorities.3

The case of Torrey v. Millbury, indorsed by Sibley v. Smith, lays down the following rules, relative to the construction of this class of statutes: "In considering the various statutes regulating the assessment of taxes, and the measures preliminary thereto, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax, and which are directory, merely, and do not constitute conditions. One rule is very plain and well settled, that all those measures which are intended for the security of the citizen, for insuring

11 Vermont, 359.

29 Louisiana, 546.

3 Sharp v. Johnson, 4 Hill, 99; Corwin v. Merritt, 3 Barbour, 343; Atkins v. Kinnan, 20 Wendell, 249; ante, pp. 61, 64.

21 Pickering, 64.

5 2 Gibbs, 498, 499.