Goodright v. Probst , 1 Yeates 300 ( 1793 )

Per Curiam.

It is indispensibly necessary for the defendant not only to shew the warrant from the lieutenant, or sublieutenant to the constable to levy the fine, or account for the loss thereof; but also to shew the call of the militia by the president or vice-president in council; the notification of the classes to march by written notices to be left at their usual places of abode, specifying the time and place of rendezvous, and that the lieutenant or sub-lieutenant will hold an appeal at the time and place therein appointed, and all the other steps preliminary to the sale as required by law. Where a special authority is delegated by law, to particular persons, to take away a man’s property and estate against his will, there it must be strictly pursued, and must appear to have been so pursued. Cowp. 29. The same doctrine was laid down at Chester, October assizes last, in the case of Marshall’s lessee v. Ford, upon a sale by a sheriff in pursuance of a precept issued by the trustee of the loan office, to sell certain mortgaged premises. And it is obvious, that such summary proceedings as the present under a special authority, cannot be too minutely or closely investigated; because otherwise the landed property of every citizen of the state would be-held by a very precarious tenure.

Mr. Woods, pro quer. Mr. J. Ross, pro def.

The jury found a verdict for the plaintiff, without withdrawing from the bar.