in the report and judgment, but consist simply of a copy of the order of the court, duly certified under the seal of the court.

Since, however, the passage of the act of March 6, 1843, which restored the old law of 1839, the list of lands, and the order of the court thereon, are essential to the validity of the precept. The copy of the order of sale was intended to notify the sheriff that the court had entered a judgment for the sale of the lands reported, while the copy of the collector's report was designed to apprise him what land he should sell.1 The form of the precept under this ruling, will be found in Atkins v. Hinman.2

In Manly v. Gibson, it was held, that where the list of lands embraced in the collector's report was delivered to the sheriff, with the order of the court thereon, duly authenticated, the precept was sufficient, though the formal parts of the collector's report were omitted. Those omissions and informalities in the judgment which do not render it void, will not invalidate the precept, because the latter is a mere copy of the former; nor will a clerical mistake in the recital of the time. when the collector made his report, render the precept void. And it has also been decided, that the precept is not a "writ or process," within the meaning of the constitution, which requires all process, &c., to run in the name of the "People of the State of Illinois." A material variance between the precept and judgment upon which it is based, is fatal to its validity. Thus in Pitkin v. Yaw, where the judgment was for 99 cents, and the precept recited a judgment for $1.25, it was held to be a material, and therefore a fatal, variance. The precept described a judgment more than one-fourth larger than the one actually rendered. Trifling variances may be disregarded,

6

1 Job v. Tebbetts, 5 Gilman, 382.

2 2 Gilman, 444, 445.

3 14 Illinois, 137.

4 Chesnut v. Marsh, 12 Illinois, 173; Atkins v. Hinman, 2 Gilman, 451.

6 Chesnut v. Marsh, 12 Illinois, 173.

• Curry v. Hinman, 11 Illinois, 420; Scarritt v. Chapman, 11 Illinois, 443. 7 13 Illinois, 251.

but one which destroys the legal identity of the proceedings cannot be sustained.

Sixth. In the construction of this statute it is held, not only that the judgment and precept are essential to the validity of a sale for taxes, but that the burden of proving their existence rests upon the purchaser, or those claiming under him; the court holding the analogy between these and ordinary sheriff's sales, complete in this respect.1

Seventh. The deed must substantially conform to the requisitions of the forty-second section of the statute, wherein the form is set forth. It must recite the judgment, precept, sale, and expiration of the time of redemption. If any material variances exist between the facts and the recitals in the deed, or if it substantially departs from the statute form, it will be treated as void, and cannot be read in evidence. The statute 'expressly declares that "deeds executed by the sheriff, as aforesaid, shall be" prima facie evidence of some, and conclusive evidence of other facts, particularly enumerated in section fortythree. It surely was never intended to give to the deed a conclusive effect against the rights of a third person, when the officer contemns the very authority under which he acts, and disregards the plain requirements of the law which is his only guide in the execution of the deed. In Pitkin v. Yaw,2 where the judgment was against eight lots, and the deed recited a judgment against and a sale of two only, the variance was held fatal, and the deed inadmissible in evidence.

Eighth. The party claiming title under the tax sale, makes out a prima facie case, by producing, 1. The judgment of a court of competent jurisdiction; 2. A valid precept issued thereon; and, 3. A sheriff's deed made in conformity with the law. The presumption then arises, that all of the requisitions of the law have been complied with by all of the officers who had any thing to do with the proceedings, and the onus probandi

1 Hinman v. Pope, 1 Gilman, 131; Atkins v. Hinman, 2 Gilman, 437; Spellman v. Curtenius, 12 Illinois, 409; Pitkin v. Yaw, 13 Illinois, 251.

2 13 Illinois, 251.

is thrown upon the party contesting the validity of the tax title.1

Ninth. Section forty-three declares, that "no person shall be permitted to question the title acquired by a sheriff's deed, without first showing that he or she, or the person under whom he or she claims title, had title to the land at the time of the sale, or that the title was obtained from the United States or this State after the sale, and that all taxes due upon the land have been paid by such person, or the person under whom he claims title as aforesaid." In construing this section, it has been decided substantially, 1. That any one may attack the validity of the judgment, precept and deed, without putting himself "in position," as it is called. 2. But if, after the person claiming under the tax title, has made out a prima facie case by showing a valid judgment, precept and deed, the adverse. party desires to question the prima facie title thus established, he must prove title to the land at the time of the sale, and the payment of taxes as required by this section.2 Proof that the party contesting the tax sale was in possession, claiming title to the land at the time of the sale, is sufficient evidence of title within the meaning of this statute.3 And if it appears that no taxes are due to the State upon the land, this satisfies the other requirement of the statute, although the taxes were not paid by the party who desires to contest the validity of the tax title.1

Tenth. Where the party resisting the validity of the tax sale has thus put himself "in position," he may defeat the sale by establishing these defences: 1. That the land was not subject to taxation at the date of the sale; 5 2. That the taxes, for

1 Manly v. Gibson, 14 Illinois, 136; Lusk v. Harber, 3 Gilman, 158; Hinman v. Pope, 1 Gilman, 131; Atkins v. Hinman, 2 Gilman, 437.

2 Hinman v. Pope, 1 Gilman, 138; Bestor v. Powell, 2 Gilman, 119; Atkins v. Hinman, 2 Gilman, 453, 454; Lusk v. Harber, 3 Gilman, 158; Curry v. Hinman, 11 Illinois, 420; Spellman v. Curtenius, 12 Illinois, 409; Hope v. Sawyer, 14 Illinois,

254.

3 Lusk v. Harber, 3 Gilman, 158; Curry v. Hinman, 11 Illinois, 420.

* Curry v. Hinman, 11 Illinois, 420; Hope v. Sawyer, 14 Illinois, 254. 5 Sec. 43.

which the land was sold, had been paid; 3. That the land was not listed and assessed in the time and manner required by law; 2 4. That the sale had been redeemed from; 5. That the sale was made on a day different from that designated in the notice, or the law; and, 6. The party may go behind the judgment and show that any of the material prerequisites of the law have not been complied with. There are, doubtless, other defences which may be successfully made to a tax sale under this statute, but no decisions have settled them, and it is unnecessary to anticipate the action of the courts. It is proper to add in conclusion, that the laws of Illinois, now in force, are substantially like the act of 1839, and their construction is governed by the same principles laid down in this chapter.

1 Sec. 43; Curry v. Hinman, 11 Illinois, 420.

2 Marsh v. Chesnut, 14 Illinois, 223; Billings v. Detten, 15 Illinois, 218.

Sec. 43; Chapin v. Curtenius, 15 Illinois, 432.

Hope v. Sawyer, 14 Illinois, 224; Polk v. Hill, 15 Illinois, 130.

Lusk v. Harber, 3 Gilman, 161, 162.

CHAPTER XII.

OF THE ADVERTISEMENT OF THE TIME AND PLACE OF SALE.

THE maxim is familiar, "That notice is of the essence of things required to be done."1 And it is a fundamental rule, that in all judicial, or quasi judicial proceedings, affecting the rights of the citizen, he shall have notice and an opportunity of a hearing before the rendition of any judgment, decree, or order against him. In other words, he must be warned, and have his day in court. And in the application of this rule, it is immaterial whether the tribunal exercising authority over his rights proceeds regularly or summarily according to the due course and process of the common law- or in pursuance of a general or special statute. It would be a violation of one of the first principles of justice and judicial proceedings, to try, and decide upon, the rights of an individual, civilly or crimi nally, without notice, and consequently an opportunity of defending himself.

So strict is the rule, that where a proceeding of a judicial nature is authorized, and the statute is silent as to notice, the adjudication will be void unless notice is given to the party in interest.2 Where the proceeding is before a special tribunal, exercising a summary authority, contrary to the course of proceeding in the common-law courts, the evidence that due no

1 1 Burr, 447; 3 Denio, 595.

2 Chase v. Hathaway, 14 Massachusetts, 222; Eddy v. People, 15 Illinois, 386; Holliday v. Swailes, 1 Scammon, 515; Shumway v. Shumway, 2 Vermont, 339; Smith v. Burlingame, 4 Mason, 121; Corliss v. Corliss, 8 Vermont, 389; Kinderhook v. Claw, 15 Johnson, 537; Brown v. Wheeler, 3 Alabama, 287; State Bank v. Marsh, 2 English, 390; Owners v, Mayor of Albany, 15 Wendell, 374.