a subscribing witness thereto, the affidavit of a witness who subsequently attested it was held not sufficient.*

In the same State it has been decided, that a sale of an intestate's real estate to pay debts, by virtue of a surrogate's order under a statute declaring that in such cases a guardian shall be appointed for infant heirs, is void unless such guardian be appointed. The statute is imperative, and leaves nothing to the discretion of the surrogate. Public policy demands that the safeguard which the legislature has provided for the protection of the helpless, against negligence, oppression, and fraud, should be maintained. On the same ground, the Supreme Court of the United States has decided that executors and administrators, in making sale of property, must comply strictly with the requisites of all statutory provisions on the subject; and that unless every essential direction of the law is complied with, those whose interests are affected are not affected by the sale, unless, from a long acquiescence, a foundation is laid for a fair and reasonable presump.. tion that the requisites of the law have been complied with. So, where an Alabama statute declared that it should not be lawful for an executor to dispose of the estate of the decedent at private sale, such a sale was held absolutely void.‡

So, too, in Michigan it has been held, that when a court exercises a special jurisdiction under a statute, the mode of proceeding must be strictly pursued; thus, where a statute requires that before a writ of attach

* Hollenback vs. Fleming, 6 Hill, 303.

† Per Gardiner, J., in Schneider vs. McFarland, 2 Coms. 459. See also on this subject M'Pherson 28. Cunliff, 11 Serg. and Rawle, 429, and Grignon's Lessee us. Astor, 2 Howard's (U. S.) R. 319.

Ventress et al. vs. Smith, 10 Peters, 161.

ment shall issue, an affidavit of indebtedness, shall be made and annexed to it, it was held that a writ issued without any affidavit, but to which an affidavit made ten days afterwards was annexed before actual service, was irregular and void.* So again in New York, in a proceeding by an insolvent debtor for a discharge, where the petition set forth that the petitioners had given a bond pursuant to the tenth section of the act on the subject, and the tenth section made mention of two bonds, only one of which gave the officer jurisdiction; it was held that jurisdiction was not acquired, and the proceedings were reversed on certiorari.†

On the other hand, it has been frequently decided that where a court once obtains jurisdiction, its proceedings cannot be collaterally impeached, although they appear to have been irregular and contrary to law. The distinction appears to be, and it is one which distinguishes this class of cases from the administrative proceedings which we shall consider under the next branch of our subject, that in regard to summary judicial proceedings, it is indispensable that all the statutory directions in regard to the steps required to give the officer jurisdiction, whether over the person or over the subject-matter as the case may be, must be strictly observed, otherwise the whole proceedings are void, coram non judice; and the objection may be taken wherever they are set up and relied on; but if jurisdiction be once acquired, then any subsequent errors or irregularities committed by the officer are

* Buckley vs. Lowry, 2 Mich., 419.

The People ex rel. Comter vs. Reed, 5 Denio, 554.

Voorhees vs. Bank of U. S., 10 Peters, 449. Grignon's Lessee vs. Astor, 2 Howard's (U. S.) R. 319.

treated like other judicial errors, and can only be corrected in the particular matter, on appeal to the proper tribunal. In regard to administrative proceedings, on the other hand, no judicial discretion or authority is recognized: they are treated as ministerial throughout; and any departure from the directions of the statute is fatal, whether the objection be taken directly, or indirectly in any collateral matter. In regard to summary judicial proceedings, the line which divides the steps necessary to give jurisdiction from those subsequent is often very difficult to define with precision, and depends on the nature of the proceedings and the language of the statute.

Statutes authorizing summary administrative proceedings affecting rights of property.-Where summary proceedings are authorized by statute the effect of which is to divest or affect rights of property, the rule holds good that they are to be strictly construed. The power conferred must be executed precisely as it is given, and any departure will vitiate the whole proceeding. It is, indeed, a general rule that all statutes conferring special ministerial authority by which any man's estate may be affected, must be strictly pursued. So, where certain loan commissioners are authorized on the default of payment of moneys loaned by them, to sell the premises mortgaged to secure the debt, a sale by one only is void. So again, where a statute in New York authorized loan commissioners in default of payment to advertise and sell on a certain day (the first Tuesday of February), and if not sold or struck off, and the bid not paid, then, to enter and to lease till the third Tuesday of September following, and then

+ Powell vs. Tuttle, 3 Comst. 396; Olmsted vs. Elder, 1 Seld. 144.

to sell again,-it was held that the lands being struck off on the first day and the bid not paid, it was not competent for the commissioners to re-sell them on the same day to another person, but that they were bound to wait till the second day named in the statute; and where the sale was directed to be for cash, it was held that the commissioners could not sell on credit.*

In this country, there is a large and important class of cases falling under this branch of our subject, where ministerial officers, either the direct agents of the state, or of corporations clothed with certain attributes of local sovereignty, are authorized to sell the property of private individuals for non-payment of taxes, or charges imposed on them. The proceedings contemplated by these enactments are generally directed to be taken without giving the party alleged to be in default any opportunity of defence; and their validity has been denied, on the ground of their being in conflict, as it has been urged, with the constitutional provision which, in most if not all the States, guarantees to every citizen the protection of "the law of the land." This objection has been, however, overruled, and the

* Sherwood vs. Reade, 7 Hill, 431; overruling the decision of Mr. Chancellor Walworth in same case, 8 Paige, 633.

We may here notice some general rules as to powers. As a general thing, in the exercise of an authority whether ministerial or judicial, all the persons to whom it is committed must confer and act together. Downing 08. Rugar, 21 Wend. 178.

So the concurrence of four justices is necessary to execute a valid warrant appointing overseers of the poor. King vs. Forrest, 3 D. and E. 38; King vs. Inhabs. of Haverstall Redware, ibid. 380.

An authority to do acts merely ministerial, as filling up an advertisement of sale, may be delegated; or when one overseer of the poor in the name and behalf of two, applies for process. Downing vs. Rugar, 21 Wend. 178; but not so when any discretion is to be executed; Powell vs. Tuttle, 3 Comst. 396.

power has been sustained on grounds of immemorial usage and state necessity. But while asserting the power, it has, in all cases, been held that it must be strictly pursued, and that its exercise will be vigilantly watched.* So, the Supreme Court of the United States has said, in regard to the sale of lands for taxes, that every prerequisite to the exercise of the power should precede it; that the party who sets up a title under such a sale, must furnish the evidence necessary to support it; and that the marshal's deed is not even prima facie evidence that the prerequisites required by law have been complied with. + A statute authority, by which a man may be deprived of his estate, must be strictly pursued. Thus, where by the law of Tennessee it is made essential to the validity of a sale of land for taxes, that the sheriff should make a certain return and certain publications, it was held by the Supreme Court of the United States that those steps must be strictly taken, and that they must also appear on the face of the record. And as they did not, the sale was held absolutely void. So, where an Arkansas statute provides that before a sheriff can assess land for taxes, he shall file an affidavit by a certain day, and the assessment by a certain other day, non-compliance with these requisitions has been held by the Supreme Court of the United States, to make the assessment, and of course the sale for taxes, invalid, and the deed void. §

* State vs. Allen, 2 McCord, 55.

Harris vs. Wood, 6 Monroe, 643. Willard vs. Wetherbee, 4 N. H. R., 118. See other cases cited in Blackwell on Tax Titles, p. 38 et seq.

Williams vs. Peyton's Lessee, 4 Wheat., 77. See also, S. P., M'Clung vs. Ross, 5 Wheat., 116.

Thatcher vs. Powell, 6 Wheat., 119. See also Jackson vs. Esty, 7° Wend., 148.

§ Parker et al. vs. Overman, 18 Howard, 187.