required the same to be put up at an upset price of two shillings and sixpence per acre, according to the number of acres necessary to cover the amount to be made, &c. Section 5 authorized the sheriff to put up any part of the lot liable to be sold for such arrears, &c., as in his discretion he may think best for the interest of the proprietor. This act was also repealed by the 13 & 14 Vic. ch, 66. The statute 3 Vic. ch. 46, sec. 6, contained additional provisions respecting the subsequent sale where the land did not bring the upset price on the first occasion. The 13 & 14 Vic. ch. 66 saved the acts repealed so far as the same might affect any rates or taxes that had accrued, &c. Referring to Doe dem. Bell v. Orr (H. T. 7 Wm. IV.), Doe dem. Bell v. Reamer (3 U. C. Q. B., O. S. 47), Stafford v. Williams (4 U. C. Q. B. 488), Doe Upper v. Edwards (5 U. C. Q. B. R. 594), Perry v. Powell (8 U. C. Q. B. R. 251), Doe dem. McGill v. Langton (9 U. C. Q. B. R. 91), Doe dem. Stata v. Smith (ib. 658), Jones v. Cayley (11 U. C. Q. B. R. 282) Peck v. Munro (4 U. C. C. P. R. 363), I think the power of sale imparted by the statutes not well executed, and the sale invalid. The 59 Geo. III. ch. 7 and 6 Geo. IV. ch. 7 have not been followed in other material points, exclusive of mere omissions of directions contained in the last act relative to notices or forms of proceeding. It is not enough that the plaintiffs' land was in arrear for taxes to some amount, and that a less amount than that for which it was sold might have been realized from it. The owner would by law be entitled to redeem it on payment of the arrears, &c., to which it was legally liable; but a portion being sold for the arrears due on that and the adjacent half lot, which had been separately granted and returned, was an excess of authority, and exposed the owner to the burthen of paying rates to which his land was not liable to relieve it from that to which it was liable. Surely this lot could not have been sold for all the arrears in the concession or township, and the owner be told it was liable to some arrears and that would sustain the whole sale. It could not require as much land to realize the sum really due upon it as was sold to raise double the amount, An undivided moiety was unnecessarily sold, and there is no means of separating the part that might have been legally disposed of from the residue unnecessarily sold. The whole being sold without any means of dividing or apportioning the land so sold, it appears to follow that being in part at least illegal, and that part not being separable, the whole sale is void. MCLEAN, J.-The east and west halves of lot number one, 2nd concession, were granted by the Crown to, and have always been owned since by, different parties. They were severally described in the Surveyor General's schedule, and an account opened against each for assessments by the Treasurer of the Home District. Being in arrear, as it is alleged, for eight years, a warrant was issued by the clerk of the peace of the Home District by order of the magistrates in general Quarter Sessions to levy the amount of taxes in arrear, and in that warrant lots numbers one and two in the 2nd concession, 400 acres, are included as being together in arrear to the amount of £6 10s. At the sale, however, the whole of lot number one was put up as being in arrear £3 58. for taxes and 7d. 68. for sheriff's fees, and the plaintiffs became the purchasers of the twenty-five acres in question. The taxes on the west half of No. 1 have been levied by the sale of a portion of the east half, though each half of the lot was liable only for its own specific amount of tax. The sale, under such circumstances, was not only irregular, but void. We cannot hold that the sale of part of the east half was valid because taxes were payable on that half lot, inasmuch as we cannot separate one portion of the twenty-five acres sold from the other, and say what portion shall be retained for the taxes due and what shall be given up as improperly sold for the taxes due on the west half of the lot. The same point was involved to some extent in the case of Peck v. Munro, recently decided in this court, where a piece of land was improperly sold for the taxes due on another tract, with which it was wholly unconnected. In that case the party holding under the purchaser was in possession and had made improvements, but the proprietor was held entitled to recover against him. In this case the purchasers are trying to recover possession, but must fail precisely on the same grounds as influenced the decision in that case. Under these circumstances, I think the nonsuit was right, and that the rule must be discharged. RICHARDS, J., concurred. EASTER TERM, 18 VIC. Present-HON. J. B. MACAULAY, C. J. HON. W. B. RICHARDS. WILLIAM LEDLEY PERRIN V. ÅLEXANDER HAMILTON, Commission of bankruptcy-Debt proveable under. Debt on bond made by the defendant and one W., as sureties for one Shaw, conditioned, that if said Shaw should not, from time to time, &c., well and truly pay unto the plaintiff each and every of ten promissory notes, on the respective days on which the same became due and payable, according to the tenor and effect of the said promissory notes respectively, then if the defendant and said W., or either of them, should well and truly, absolutely and at all events, pay or cause to be paid unto the plaintiff each and every of the said ten promissory notes, on the respective days on which the same became payable, then, &c.; otherwise, &c.; assigning breaches as to the last six of the said promissory notes. Plea, that Shaw did not pay the first and second of the said ten promissory notes when the same became due and payable, according to the tenor and effect thereof, and that thereupon the bond became forfeited; and that afterwards, and while the said notes remained due and unpaid, to wit, on, &c., the said Shaw became bankrupt; and that afterwards, and while the said notes remained due and unpaid, and after the said writing obligatory had become forfeited, the defendant became bankrupt, &c., and that the said debt accrued due and was payable before the defendant became bankrupt. On demurrer to this plea, on the grounds that the notes which became duo after the bankruptcy of the defendant were not proveable under the commission against the defendant under the statute; that the liability of the defendant under the bond was not embraced in the statute, and was not discharged thereby; and that as to the notes which fell due after the bankruptcy of the defendant, the bond at the time of the bankruptcy was not forfeited: Held, that the bond being forfeited before the defendant's bankruptcy, therefore the penalty became a debt, which the plaintiff might have applied to have retained in the hands of the defendant's assignee till the contingency happened, and then have proved, and that the defendant was discharged, and the plea consequently good. RICHARDS, J., dissentiente. DEBT, on the joint and several bond of the defendant and one James Wilson to the plaintiff, in the penal sum of one H VOL. V. thousand six hundred and eighty pounds, dated the 14th of April, 1846. Writ issued 30th of August, 1854; declaration, 12th of September, 1854. After reciting that one Samuel Shaw had made his ten promissory notes, bearing equal date with the said writing obligatory; and that the defendant and the said Wilson had agreed, jointly and severally, to guarantee the due and faithful payment, according to the tenor and effect thereof respectively, and that five of the said promissory notes were made payable to the plaintiff or order at the Branch Bank of Montreal, Toronto, at one, two, three, four and five years after date; and that other five of the said promissory notes were stock notes, made payable to the plaintiff in good merchantable axes at the market price, but not to exceed three pounds fifteen shillings per box, payable at the establishment of Messieurs William Ledley Perrin and Company, at Toronto, at one, two, three, four and five years after date; and that the defendant and said Wilson had agreed to become, and by the said writing obligatory did become jointly and severally sureties for the due payment as well of the said five negotiable promissory notes therein and herein before firstly mentioned, as of the said five stock notes therein and herein before lastly mentioned, according to the tenor and effect of the said ten notes respectively, such payment being intended by the defendant and said Wilson to be secured by them absolutely and at all events: it was conditioned, that if the said Samuel Shaw, his executors, &c., should not from time to time, &c., well and truly pay or cause to be paid unto the plaintiff, his executors, &c., each and every of the said ten promissory notes, on the respective days on which the same became payable, according to the tenor and effect of each of the said ten notes respectively; then, if the defendant and said Wilson, or either of them, their or either of their heirs, executors or administrators, should well and truly, absolutely and at all events, pay or cause to be paid unto the defendant, his heirs, &c., each and every of the said ten notes, on the respective days on which the same respectively became due and payable, according to the tenor and effect thereof, then the said writing obligatory should be void, &c.; otherwise, &c. The declaration then assigns for breaches, that on the 17th of April, 1849, a large sum of money-to wit, the sum of one hundred and eighteen pounds-secured by the promissory note for that sum in the said writing obligatory mentioned, became and was due, and owing, and payable from the said Shaw to the plaintiff, but that neither the said Shaw, although afterwards thereunto duly requested, nor the said Wilson, nor the said defendant, who afterwards had due notice of the default of the said Shaw, paid the same or any part thereof to the plaintiff; and the same is and remains in arrear and unpaid, contrary to the tenor and effect of the said writing obligatory. The declaration then assigns five other breaches as to the remaining notes, payable in axes and money, and concludesby means of which said several breaches the said writing obligatory became forfeited, and an action hath accrued to the plaintiff to demand, &c. ; yet, &c. The bond being set out on oyer in the same terms as in the declaration, the defendant pleaded, first, that the said Shaw did not pay the said promissory notes firstly and secondly in the recital of the said writing obligatory mentioned, when the same became due and payable, according to the tenor and effect thereof, and that thereupon the said writing obligatory became and was forfeited; and the defendant further saith that afterwards, and while the said promissory notes remained due and unpaid-to wit, on the 1st of June, 1848-the said Shaw became a bankrupt, within the true intent and meaning of the statutes then in force concerning bankrupts, and that afterwards, and while the said promissory notes remained due and unpaid, and after the said writing obligatory had become forfeited, and before suit-to wit, on the 24th of June, 1848the defendant became a bankrupt, within the true intent and meaning of the statutes then in force concerning bankrupts, and that the said debt accrued due and was payable, and the causes of action in respect thereof accrued to the plaintiff, before the defendant became a bankrupt-concluding to the country. Demurrer to plea, on the grounds, first, that the promissory notes in the said writing obligatory mentioned, which became |