Alfred Clark vs. Daniel Tucker, 6 Vt. 181

The opinion of the court was pronounced b’y Mattocks, J. — There were sundry objections taken in the county court to the- validity of the proceedings in relation to the vendue under which the defendant claimed. But as there, is one objection that we deem fatal-to the regularity of the vendue, it is not necessary to give an opinion upon the other points raised.

No. 3 of the acts relating to particular land taxes, Sec. 3, after directing the collector, among other things, to present to the town clerk the newspapers in which the advertisements were published, says “ that the clerk shall record the advertisements at length, and the title, the volume and number, and the date of the papers in which they were inserted, and the place whq^e suc^ PaPei‘ was printed.” Under this clause, it has been common for the clerks to record the advertisements, by copying each one, stating what the number, date, and place of printing the paper was, and then to add that the above advertisement was inserted in such and such other papers, and numbers, describing them, and naming the places where printed.

This mode not having been decided irregular, and now assuming that such a recording would be valid, yet we find in this case, that the clerk, after recording the advertisement of the committee at length,, which is dated 3d March, 1829, and certifying that it was inserted in the Vermont American, then goes on to say, “ also the above advertisement, dated March 10th, 1829, was inserted in the Rutland Herald,” &c. and the same repeated and applied to the Vermont Republican. The advertisement recorded, therefore, is dated the 3d, and the one referred to and called the same, is dated the 10th March.

Supposing the advertisements themselves- to be valid, though of different dates, yet there is a repugnance in the recorded advertisement and the one referred to-; and they cannot be one advertisement, as the date is an essential part •, and in any writing declared upon, this would be a fatal variance.

There was evidently two advertisements, or the certificate o,f the town clerk was false, one dated the 3d, and the other the 10th, and the first only was recorded ; and if there were two deeds of like tenor, but of different dates, the first being duly recorded, and the clerk should certify that the second was like it, except the date, it would be no recording of the last. The collector has therefore most evidently omitted to cause the advertisements to be recorded as the statute directs: and this being an essential part of Ms duty, which is omitted, the vendue sale was not valid.

The judgment of the county court is reversed.