proceeding must be strictly pursued, or the whole transaction. will be void. In all cases where the party whose rights are to be affected has no actual notice and cannot be heard in support of his rights, it is no more than reasonable and proper that a strict compliance with the requirements of the law under which the proceeding is conducted shall be regarded as essentially necessary to the divestiture of his title.1 Under constitutional governments, the citizen can only be deprived of his property by a judicial decision, upon sufficient notice and reasonable time and opportunity being afforded to be fully heard in his defense. In all departures from the policy of this general rule and policy, the Courts have been rigid in demanding a strict compliance with the requirements of the statutes authorizing the proceeding; and hence, it results that title to property can be divested, under pound laws, only by strict compliance with the laws.2 § 248. The title acquired at a pound sale depends entirely upon the rigid adherence, by the officer, to the provisions of the law under which the animal has been taken and the sale been made.3 1 Rex v. Cooke, 1 Cowper, 26. "Where by statute a special authority is delegated to particular persons, affecting the property of individuals, it must be strictly pursued, and appear to be so on the face of their proceedings." This rule, declared more than a century ago-1774-has been generally recognized in the Courts of America as well as those of England. 2 Coffin v. Fields, 7 Cush. 358. "It is well settled that a party who justifies the taking of another's property under legal authority or process, must show that he has acted in strict conformity with the requirements of the law; otherwise, he will be considered a tresspasser ab initio, and liable to an action of trespass at common law." Purrington v. Loring, 7 Mass. 388; Gilmore v. Holt, 4 Pick. 263; Adams r. Adams, 13 Pick. 387; Smith v. Gates, 21 Pick. 55; Clark v. Lewis, 34 Ill. 417; Merritt v. O'Neal, 13 Johns. 477; Colden v. Eldred, 15 Johns. 220. 3 Clark v. Lewis, 34 Ill. 421. "Under this ordinance, the pound-master could have no authority to act, unless the animal was running at large. If it was not running at large when taken up, he became a trespasser. Were he to impound an animal not subject to such a proceeding, the act being unauthorized and illegal, a purchaser, at his sale, would acquire no title to the property. Having no right to sell, he could confer no title to the purchaser." The mere fact that he is such officer does not constitute a justification for seizing or selling property, but the authority to do so must be shown. It is true that, in Pickard v. Howe, 12 Metc. 198, it was held that "a notice, given by a field driver to the owner of the cattle, that they are going at large Purchasers at pound sales must be prepared to submit to the same rule as the officer who takes the animal. The mere fact that the pound-master, or other officer empowered to make such sales, has sold the animals, is not even prima facie evidence that his proceedings have been regular in taking the animals, giving requisite notice, and making the sale; and the purchaser is therefore subjected to the inconvenience of being always prepared to show strict compliance with the provisions of the statute by the officer who has made the sale. on the public highway, is prima facie evidence that they were so at large, and puts on the owner the burden of proving the contrary"; but the further reasoning in the later case above cited, Clark v. Lewis, comparing the purchaser of animals at a pound sale with him who buys property at a sale by the sheriff, under execution, appears difficult to avoid. The sheriff's sale must be sustained by the judgment, execution, and due proceedings thereunder. Conceding, however, that the service of the notice upon the owner of the cattle does throw upon the owner the burden of proof to negative the assumption that the animals were liable to seizure, still the purchaser must be prepared to sustain the prima facie case made by the service of the notice, and, at all events, he must be prepared to make the same defense as the officer by showing strict compliance with the requirements of the law. |