Early v. Doe. 16 H. presumed that the legislator, in making this statute, did not mean to use it in the same way. Twelve successive weeks is as definite a designation of time, according to our division of it, as can be made. When we say that any thing may be done in twelve weeks, or that it shall not be done for twelve weeks, after the happening of a fact which is to precede it, we mean that it may be done in twelve weeks or eighty-four days, or as the case may be, that it shall not be done before. The notice for sale, in this instance, was the fact which was to precede the time for sale, and that is neither qualified nor in any way lessened by the words "once a week," which precede in this statute those which follow them, "for at least twelve successive weeks." We think that the court did not err in refusing to give to the jury the instruction which was asked by the defendant upon the trial of this case. The construction of the statute will be recognized to be in harmony with that policy of the law which experience has established to protect the ownerships of property from devestiture by statutory sales, where there has not been a substantial compliance with the law, by which a public officer is empowered to sell it. Property is liable to be sold on account of an undischarged obligation of the owner of it to the public or to his creditors. But it can only be done in either case where there has been a substantial compliance with the prerequisites of the sale, as those are fixed by law. Any assumption by the officer appointed to make the sale, or disregard of them, the law discountenances. He may not do any thing of himself, and must do all as he is directed by the law under which he acts. He may not, by any misconstruction of it, anticipate the time for sale within which the owner of the property may prevent a sale of it, by paying the demand against him, and the expenses which may have been incurred from his not having done so before. This the law always presumes that the owner may do, until a sale has been made. He may arrest the uplifted hammer of the ⚫ auctioneer when the cry for sale is made, if it be done [* 618] before a bona fide bid has been made. The authority of the officer to sell is, as it was in this case, "unless the taxes be previously paid to the collector, with such expenses as may have accrued at the time of payment." There is a difference, it is true, in the strictness required in a tax sale, and that of a sale made under judgment and execution, but in both, the same rule applies as to the full notice of time which the law requires to be given for the sale. "In deciding upon tax land titles great strictness has always been observed. The collector's proceedings are closely scanned. The purchaser is bound to inquire whether he has done so or not. He buys at his Early v. Doe. 16 H. peril, and cannot sustain his title without showing the authority of the collector and the regularity of his proceedings." This court said, in Williams v. Peyton, 4 Wheat. 77, that the anthority given to a collector to sell land for the non-payment of the direct tax, "is a naked power not coupled with an interest." In all such cases the law requires that every prerequisite to the exercise of that power must precede its exercise, that the agent must pursue the power or his act will not be sustained by it. Again, in Ronkendorff's case, 4 Pet. 349, this court repeated that in an ex parte proceeding, as a sale of lands for taxes, under a special authority, great strictness is required. An individual cannot be devested of his property against his consent, until every substantial requisite of the law has been complied with. The proof of the regularity of the collector's proceedings devolves upon the person who claims under the collector's sale. At an earlier day, the court decided, in Stead's Executors v. Course, 4 Cranch, 403. A collector selling lands for taxes, must act in conformity with the law from which his power is derived; and the purchaser is bound to inquire whether he has so acted. It is incumbent upon the vendee to prove the authority to sell. See also McClung v. Ross, 5 Wheat. 116; Thatcher v. Powell, 6 Wheat. 119. The decisions made by this court are full as to the circumstances under which tax titles may be set aside. We recommend also the perusal of the case of Lyon et al. v. Hunt et al. in 11 Alabama Reports, 295, cited by the counsel for the defendant in error; and to all of the cases cited in the opinion of Chief Justice Collier. It is not necessary for us to extend this opinion further in citing cases upon tax sales. So far as we know, the law upon the subject is the same throughout the United States, and where differences exist they have occurred from a different phraseology in statutes, and not from any discordance in the views of judges in respect to the common law to be applied in tax sales. # See 4 Cranch, 403; 9 ibid. 64; 1 Scam. 335; 1 Bibb, [* 619 ] 295; 5 Mass. 403; 4 Dev. & Bat. 363; 3 Ohio, 232; 2 ibid. 378; 3 Yeates, 284; 2 ibid. 100; 13 Sergeant & Rawle, 208; 4 Dev. & Bat. 386; 5 Wheat. 116; 6 ibid. 119; 1 Yeates, 300; 3 Monroe, 271; 1 Tyler's Rep. 305; 14 Mass. 177; 8 Wheat. 681; 15 Mass. 144; 1 Greenleaf's Rep. 339; Taylor's North Carolina Rep. 480; 3 Hawks's Rep. 283; 1 Gilm. 26; 10 Wend. 346; 18 Johns. 441; 5 Alabama, 433. I have not the reports of the supreme court of Georgia at hand, to cite from them any cases of tax sales, if any have been decided by it, but I know that the decis ions of the courts in that State are the same as those stated in this opinion and in the cases cited. We affirm the judgment of the circuit court. Deshler v. Dodge. 16 H. CRUZ CERVANTES, Appellant, v. THE UNITED STATES. 16 H. 619. The record of the district court for the northern district of California, in a proceeding to confirm a Mexican title, did not show that the land lay in that district. The case was remanded. APPEAL from the district court of the United States for the northern district of California. Wm. Carey Jones, for the appellant. Cushing, (attorney-general,) contrà. * M'LEAN, J., delivered the following opinion of the court. [ *621 ] It does not appear, from the proceedings before the district court, that the land claimed is within the northern judicial district of California. This is necessary to give that court jurisdiction. It can exercise no power over any claim, where the land lies in the southern judicial district of the same State. This court has often held, unless the jurisdiction of the circuit or district court appear in the record, the judgment of such court may be reversed on a writ of error. It is therefore important, that, in dealing with land titles, the jurisdiction of the inferior court should appear in the proceeding. From a map of the State of California, recently published, it appears the land claimed in this case lies in the southern district, and if so, no jurisdiction attached to the court where the proceeding was instituted. For the purpose of correcting the proceeding in this respect, the decision of the district court is reversed, and the cause is remanded to that court with leave to amend the proceeding in regard to the jurisdiction of the district court, and to any other matter of form or substance which may be necessary. JOHN C. DESHLER V. GEORGE C. DODGE. 16 H. 622. To support an action of replevin to recover bank bills, it is not necessary to show that the plaintiffs assignor could have sued, though the title to the bills was conveyed to the plain. tiff after they were taken and while they were detained by the defendant. The 11th section of the judiciary act of 1789, (1 Stats. at Large, 78.) does not apply to an action to recover the note itself, but to an action to recover its contents Deshler v. Dodge. 16 H. THE case is stated in the opinion of the court. Stanberry, for the plaintiff. Spalding and Pugh, contrà. {* 630 ] NELSON, J., delivered the opinion of the court. This is a writ of error to the circuit court of the United States for the district of Ohio. The suit below was an action of replevin to recover the possession of a quantity of bank-bills, in the hands of the defendant, upon banks in the city of Cleveland, amounting in the whole to the sum of $38,592, and the title to which was derived by an assignment from the banks to the plaintiff. The declaration is in the usual form for wrongfully and unjustly detaining the possession of the property, the plaintiff averring that he is a citizen and resident of the State of New York; and the defendant a citizen and resident of the State of Ohio. To this declaration, the defendant plead to the jurisdiction of the court, setting up that the defendant was acting treasurer of the county of Cuyahoga, Ohio, and had distrained the bills in question belonging to the banks to satisfy the taxes and penalties duly imposed upon them; and that after the said bills had been thus distrained and in his possession, the said banks being incorporated companies by the laws of the State of Ohio, and doing business in the city of Cleveland, sold, assigned, and transferred the same to the plaintiff; and that all the right and title to the said bills belonging to him is derived from the aforesaid assignment; wherefore the defendant says, the supposed causes of action are not within the jurisdiction of the court, and prays judgment if it will take further cognizance of the suit. To this plea the plaintiff demurred, and the defendant joined in demurrer, upon which judgment in the court below was given for the defendant. The only question presented in the case by either of the parties is, whether or not the court below had jurisdiction of the case within the true meaning of the 11th section of the judiciary act of 1789, the material part of which is as follows: "Nor shall any [* 631 ] *district or circuit court have cognizance of any suit to recover the contents of any promissory note, or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange." It is admitted the assignors in this case could not have maintained the suit Deshler v. Dodge. 16 H. in the federal courts. We are of opinion that this clause of the stat ute has no application to the case of a suit by the assignee of a chose in action to recover possession of the thing in specie, or damages for its wrongful caption or detention; and that it applies only to cases in which the suit is brought to recover the contents, or to enforce the contract contained in the instrument assigned. In the case of a tortious taking, or wrongful detention of a chose in action against the right or title of the assignee, the injury is one to the right of property in the thing, and it is therefore unimportant as it respects the derivation of the title; it is sufficient if it belongs to the party bringing the suit at the time of the injury. The distinction, as it respects the application of the 11th section of the judiciary act to a suit concerning a chose in action, is this — where the suit is brought to enforce the contract, the assignee is disabled unless it might have been brought in the court, if no assignment had been made; but, if brought for a tortious taking or wrongful detention of the chattel, then the remedy accrues to the person who has the right of property or of possession at the time, the same as in case of a like wrong in respect to any other sort of personal chattel. The principle governing the case will be found in cases that have frequently been before us arising out of the assignment of mortgages, where it has been held, if the suit is brought to recover the possession of the mortgaged premises, the assignee may bring the suit in the federal courts, if a citizen of a State other than that of the tenant in possession, whether the mortgagee could have maintained it or not, within this section; but, if brought to enforce the payment or collection of the debt by sale of the premises or by a decree against the mortgagor, then the assignee is disabled, unless the like suit could have been maintained by the mortgagee. 7 How. 198. This distinction is stated by Mr. Justice Grier, in the case of Sheldon et al. v. Sill, 8 How. 441. The learned justice, in delivering the opinion of the court in that case, observed, "that the term chose in action is one of comprehensive import. It includes the infinite variety of contracts, covenants, and promises, which confers on one party the right to recover a personal chattel, or sum of money from another, by action." This paragraph has been relied on to sustain [* 632 ] the plea in question; but other portions of this opinion will show, that the phrase "right to recover a personal chattel," was not meant a recovery in specie, or damages for a tortious injury to the same, but a remedy on the contract for the breach of it, whether the contract was for the payment of money, or the delivery of a personal chattel. Indeed, upon a close examination, this is the fair import of |