author: Agneav, J. —

text:
    Lenhart et al. versus Ream.
    1. Land was conveyed in 1846, the grantor being then eighteen years old; in ejectment by the grantor there was evidence that the defendants and those under whom they claimed had held possession under the grant for more than twenty-one years and for more than ten years after the grantor arrived at age. Held, that this was evidence for the jury that the defendants had a title under the Statute of Limitations.
    2. Improving the land by the defendants was evidence on the question of the character of their possession.
    3. Henry v. Carson, 9 P. P. Smith 297; Urban v. Grimes, 2 Grant 96,.fol-lowed.
    May 13th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Somerset county: No. 42, to May Term 1873.
    This was an action of ejectment brought November 30th 1868, by Jacob Ream against A. J. Lenhart, Huldah Lenhart, John Brooks and Philip Phillippi, for one undivided ninth part of 377 acres of land in Somerset county.
    The land was originally owned by John Ream, who in 1829 conveyed it to nine grandchildren, of whom the plaintiff was one.
    The plaintiff on the trial- before Hall, P. J., September 15th 1871, gave evidence by Samuel W. Ream the father that the plaintiff was born December 20th 1827, that plaintiff had “ left this county before he was of age and has never lived here since.”
    The plaintiff here rested.
    The defendants then gave in evidence a deed for the land in dispute, dated February 26th 1846 and recorded August 31st 1846, from the plaintiff and others to Otho Ream and Henry Ream; also deed from Otho Ream to Henry Ream, dated June 9th 1848, and recorded June 26th, for grantor’s interest in the same land; also patent to Henry Ream dated April 10th 1849 ; also deed of assignment for benefit of creditors for land in dispute, Henry Ream to H. L. Holbrook, dated March 18th and recorded March 19th 1852. They gave evidence of conveyance, the deed being mislaid, of the same land, Holbrook to Frederick Blubaugh ; deed Blubaugh to William Lenhart for the same land, dated July 13th 1855 : the defendants hold under Lenhart. They gave in evidence, the auditor’s report distributing the estate of Henry Ream in the hands of his assignee, confirmed January 8th 1855, by which it appeared that there were awarded out of Henry Ream’s estate to Jacob Ream, $172.12. They gave evidence that W. Lenhart had taken possession of the land seventeeen years previously, and Blubaugh and Henry Ream had been in possession before him.
    The defendants offered to prove that Wm. Lenhart and other defendants made valuable improvements upon the land, Avhereby it became largely enhanced in value upon the faith of a title on its face good, and that the plaintiff for a long period of years remained silent as to his claim when he should have made it knoAvn.
    The offer was rejected and a bill of exceptions sealed.
    The charge of the court was:—
    “ The court is requested to charge the jury : That Jacob Ream having executed and delivered a deed good on its face, which within the recording period was placed on record, and the title having passed from Henry Ream for full consideration to innocent purchasers for value, the verdict must be for the defendants.
    “ Negatived, and the jury instructed that under all the evidence in the case, the verdict should be for the plaintiff.”
    The jury found a verdict for the plaintiff.
    The defendants took a Avrit of error and assigned for error, the rejection of their offer of evidence and the charge of the court.

      A. J. Ooffroth (with whom Avere Baer $ Baer), for plaintiffs in error,
    cited Plumer v. Robertson, 6 S. & R. 184; Clark v. Hackthorn, 3 Yeates 269.

      A. J. Oolborn (with whom Aras Kimmel) for defendants in error,
    cited Schrader v. Decker, 9 Barr 16; Urban v. Grimes, 2 Grant 96; Drake v. Ramsay, 5 Hammond 251; Cressinger v. Welch, 15 Ohio Rep. 183.
   The opinion of the court was delivered, July 2d 1873, by

Agneav, J. —

The court below erred in taking this case from the a. There was evidence of actual possession on part of the deants of more than twenty-one years under color of title. This ought to have gone to the jury, Avith a proper instruction. Jacob Ream’s deed to his brothers Otho and Henry bears date the 20th of February 1846, and AYas recorded August 31st 1846. Shortly aftenvards, and before he Ayas of age, he left the state and went to Illinois, returning only temporarily once or tAvice. The title of Otho and Henry Ream vested finally in William Lenhart, under whom the defendants below held. There Avas evidence tending to shoAV that the possession of the land accompanied and was held under the deed from its date until this suit was brought, ayMcIi Ayas on the 30th of November 1868, a period of more than twenty-one years.

Jacob Ream was born on tbe 20th December 1827, and therefore became of age on the 20th December 1848. Consequently the ten years given to minors after arrival at full age had no place in the count of time, the twenty-one years from the original entry under the deed having overrun that period. This point was decided in Henry v. Carson, 9 P. F. Smith 297, in a well-considered and carefully-written opinion by our brother Williams. The twenty-one years from the time of the original entry having expired previous to the bringing of the suit, the question of possession ought to have been submitted to the jury under the Statute of Limitations. Otherwise we cannot say that the learned judge committed any error.

On the question of ratification the ease seems to be governed by Urban v. Grimes, 2 Grant 96. So far as the offer to prove what improvements had been made by Lenhart related to the question of ratification, we cannot say its rejection was error, for the defendants had given no evidence of ratification by Jacob Ream. But so far as the improvements bear on the character of the possession of the defendants, it would be proper to receive the evidence on the next trial.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Sharswood, J. —

license: Public Domain

text:
    Somerset and Stoystown Road.
    1. The repeal of statutes by implication is not favored.
    2. If there be two affirmative statutes on the same subject, there must be a clear inconsistency or repugnancy, that the later one may repeal the former.
    3. A subsequent affirmative-statute is a repeal of a former as to the same matter, if it introduces a new rule and is intended as a substitute for the former.
    4. The Acts of April 3d 1851 and April 22d 1856, in boroughs to which they apply, supersede and repeal so much of the General Road Law of June 13th 1836, as they supply.
    5. By streets and alleys ‘‘therein/’ under sect. 1 of Act of 1856, is meant such as begin and end in a borough, and within its limits, not public roads.
    6. The borough law as to streets, &c., does not apply to public roads through a borough of which only a part is within the borough limits.
    7. The Borough Acts of 1851 and 1856, in relation to roads, construed in connection with the General Road Law of 1836.
    May 13th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Certiorari to the Court of Quarter Sessions of Somerset county: No. 70, to May Term 1873.
    In the matter of a public road from Somerset to Stoystown.
    On the 19th of February 1872, a petition was presented to the Court of Quarter Sessions of Somerset county, setting forth “that a road from Somerset borough to the borough of Stoystown was laid out on the-day of-- 1798, and ordered to be opened -feet wide, and that part of said road from the north-west corner of the lot of George W. Pile, in Somerset borough, to the south-west corner of the lot of Henry E. Knepper, in Somerset township, is found to be too narrow to accommodate the public;” and praying the court to appoint three persons to widen and straighten the same, &c.
    Viewers were appointed, who reported in favor of widening and straightening the road. The report was confirmed nisi May 7th 1872, and court fixed the width of the road at thirty-six feet.
    The Court of Quarter Sessions, on February 6th 1852, “decreed that the borough of Somerset be subject to the restrictions, and possess the powers and privileges conferred by the Act of Assembly, entitled ‘An Act regulating Boroughs,’ approved 8d April 1851. And it is further ordered and decreed that the provisions of the former charter of the said borough shall be and they are hereby annulled by this decree, so far as they are in conflict with the Act of Assembly aforesaid.”
    The portion of the road west of the Stoystown bridge is within the corporate limits of the borough of Somerset, and the portion east of said bridge is in Somerset township.
    IT. J. Pickings filed exceptions, to wit:—
    1. The Court of Quarter Sessions has no jurisdiction in the matter.
    2. That portion of the road within the borough is regulated by the Burgess and Council.
    On the 25th of November 1872, the court confirmed the report, holding that the Court of Quarter Sessions had jurisdiction in the 'premises.
    Pickings removed the record to the Supreme Court by certiorari, and assigned for error that the court erred in deciding “ that’ the Court of Quarter Sessions has jurisdiction under the Act of 13th June 1836, to lay out a public road, and under the Act of 8th May 1850, to widen a public road within the limits of a borough; and in confirming the report.”

      A. H. Goffroth, for certiorari,
    referred to Act of April 3d 1851, § 1; Pamph. L. 320; 1 Br. Purd. 167, pl. 15; Street in Allegheny, 5 Casey 391; Road in Milton, 4 Wright 300.

      A. J. Golborn, contrá.
   The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

The repeal of statutes by implication is certainly not favored. Where there are two affirmative statutes on the same subject, there must be a clear inconsistency or repugnancy between them in order that the later one shall produce this result: Street v. The Commonwealth, 6 W. & S. 209; Bank v. The Commonwealth, 10 Barr 448; Brown v. The County Commissioners, 9 Harris 37; Opdyke’s Appeal, 13 Wright 373. Yet a subsequent affirmative statute is a repeal by implication of a former one made concerning the same matter, if it introduces a new rule upon the subject and is evidently intended as a substitute for the former law : Johnston’s Estate, 9 Casey 511. Before the Act of April 3d 1851, Pamph. L. 320 — the General Borough Law— many special charters to particular boroughs vested them with powers to lay out and open roads, streets and alleys within their limits, but unless Avhere exclusive language was used, as in' the case of The Road in the Borough of Easton, 3 Rawle 195, they were always held not to repeal the General Road Law: Road in Moyamensing, 4 S. & R. 106; Road in Mercer, 14 Id. 447; The Newville Road Case, 8 Watts 172; Sharett’s Road, 8 Barr 89. The Act of 1851 provided that the boroughs should have power “ to survéy, lay out, enact and ordain such roads, streets, lanes, alleys, courts and common seAvers as they may deem necessary, and to provide for, enact and ordain the widening and straightening, of the same.” It enacted also “that like proceedings shall be had for the opening, widening and straightening of the roads, streets, lanes, courts and alleys laid out and ordained in accordance Avith the provisions of this act, as are provided for the laying out and opening of public roads within this Commonwealth,” and “ that such streets, lanes and alleys shall not be opened for public use until the damages shall be liquidated; and upon any amounts due or to become due by borough corporations for the purposes aforesaid, interest shall be allowed and paid from the date of the adjudication of said damages;” and further, “that all damages assessed beyond the value of the land thus appropriated to public use shall be paid by the corporation, and the jury shall separately assess the same.” The Act of April 22d 1856, Pamph. L. 525, entitled “A Supplement to the Act regulating Boroughs,” provides “that Avhenever the burgesses and town council of any borough shall open or be about to open any streets or alleys therein or to Aviden and pxtend the same,” they may apply by petition to the Court of Quarter Sessions, who shall appoint seven disinterested freeholders of such borough as viewers, who shall proceed to assess the damages to all persons injured, and shall also make assessments for contribution upon all properties benefited. It must be admitted that the differences in the proceeding thus provided for and that under the General Road Law of 1836 are very important, and it can scarcely be supposed to have been within the intention of the legislature that any person, by applying for a vieAV of a road or street within a borough, can have it opened and laid out by an order of the court Avithout the action of the borough authorities, and thereby throw the damages upon the county treasury, without any contributory assessments upon the properties benefited. It may be therefore, and there is great reason to hold, that as to streets and alleys within the limits of the borough, to which the Acts of 1851 and 1856 are confined, the provisions of these acts supersede and repeal so much of the General Road Law as they supply. But by streets and alleys “therein” — that is, within the borough limits — must necessarily be meant such as begin and end therein, and not such public roads as are or may be opened through the borough, of Avhich a part only is Avithin the borough limits. ■ As to such roads there is nothing in either of these acts to repeal the general law or repugnant to it. Most of the boroughs have had their beginnings by a few houses built along some public road, and not unfrequently Avhere two roads cross each other. In laying out and opening such a road between distant termini, though it may be laid out through a borough, or in widening and straightening one already laid out and opened, to require that as to the part within the borough ono proceeding shall be followed, and as to so much as lies without, another and different proceeding, would be to introduce unnecessary complication. Besides, a public road laid out and opened by order of the court under the General Road LaAV must be presumed necessary for the accommodation of the public at large, and not of the inhabitants of the borough only; yet if the construction now contended for prevail, such a road under the Acts of 1851 and 1856 could not be laid out through a borough Avithout the concurrence of the borough authorities. In the case presented to us upon this record it appears that a road Avas laid out by public authority, in the year 1798, from Somerset borough to the borough of Stoystown, and the petition, upon Avhich the proceedings below were founded, represented that part of said road, from a point in Somerset borough to a point in Somerset township, was too narrow to accommodate the public, and prayed for the appointment of vieAvers to widen and straighten the same. This was not, then, the case of a street or alley in the borough of Somerset. One of its termini is beyond the limits of the borough. We are of opinion with the learned judge below that the Court of Quarter Sessions had jurisdiction on the petition, and that the proceedings Avere warranted by the Acts of Assembly.

Proceedings affirmed.

Mbrcur, J., dissented.


author: Agkew, J. —

text:
    Leidig versus Bucher et al.

    1. In an action for tort against two or more, separate acts not committed with a common purpose or design, and without concert, will not authorize a joint recovery.
    2. If it he proved that only one was concerned the plaintiff may recover against him as if he only had been sued.
    3. In an action against four for libel, a point was, “ It is not necessary to sustain the action to prove a joint engagement in making and publishing the libel; all that is required is to (prove) that each or any of defendants is guilty, and the jury can give a verdict against all or any one of the defendants, or separate verdicts against any two or more of them/’ The court denied the point, adding, li you may find against one of the defendants, but cannot find separate damages against both.” Held to be correct.
    4. Defendants who have not conspired together or joined in committing the wrong should not be joined in the same action.
    5. Bard v. Yohn, 2 Casey 482, followed. Weakly v. Foyer, 3 Watts 460, distinguished.
    May 28th 1873.
    Before Rea», C. J., Agnew, Sharswood, Williams and Merour, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 41, to May Term 1873.
    This was an action on the case for libel, brought November 27th 1869, by John B. Leidig against D. F. Carmony, David H. Kimmel, William P, Eckels and Robert A. Bucher.
    The declaration was that D. F. Carmony, D. H. Kimmel, W. P. Eckels and R. A. Bucher were summoned to answer J. B. Leidig, and the plaintiff complained that whereas he was always held in good repute, &c., and the defendants well knowing the premises but contriving and intending to injure, &c., the plaintiff, “ conspired, combined and confederated together to spread false, malicious and slanderous libels of and concerning the plaintiff, to wit, that he had been guilty of taking property belonging, &c., feloniously and surreptitiously, and in pursuance of said combination and conspiracy the defendants” procured large printed handbills charging him with la-rceny, to be put .up conspicuously in divers places in the county of Cumberland, &c., by means of which the plaintiff lost the good-will and esteem of his fellow-citizens and to his damage, &c.
    Additional accounts were afterwards filed.
    1. Averred that the defendants, intending to harass, &c., the plaintiff and “ bring him into public disgrace and ridicule, composed, printed and published * * * the following handbill,” — setting out the handbill at large.
    2. Averred that the defendants, intending to harass, &c., the-plaintiff “ circulated and distributed the said printed handbills * * * and secretly, clandestinely and maliciously procured them to be printed and publicly exhibited,” &c., without setting out the handbills.

      3. Averred that the said defendants with like intent “ conspired, confederated and combined together to traduce, &c., the said plaintiff, * * * and in pursuance of this combination and conspiracy the defendants composed and published certain other wicked handbills,” &c., setting them out at large.
    4. Averred that “in pursuance of the said combination and conspiracy,” defendants circulated the said handbills amongst plaintiff’s acquaintances.
    5. Averred that the defendants “ secretly and clandestinely” procured said handbills and “ posted them conspicuously in divers public places,” &c.
    Neither of these two counts set out the handbills.
    The defendants pleaded “Not Guilty” and also put in a plea of justification.
    The cause was tried March 5th 1872, before Junkin, P. J.
    Both parties gave a great deal of evidence to support their respective parts of the issue.
    A large number of bills of exceptions to evidence were sealed during the trial; and each party submitted a number of points.
    The only point considered in the opinion of the Supreme Court was the plaintiff’s ninth point, which was as follows:—
    In an action for a libel against two or more individuals it is not necessary, in order to sustain the action, to prove a joint engagement in the making and publishing of the libel. All that is required is to show to the satisfaction of the jury that each or any one of the defendants is guilty of the offence charged, and the jury can bring in a verdict against all or any one of the defendants, or separate verdicts against any two or more of them.
    To this the court said: “We answer that this proposition is neither law nor reason, except this, that you may find against one of defendants, but cannot find separate damages against both.”
    The verdict was for the defendants.
    On a writ of error by the plaintiff, this answer was, amongst ¡others, assigned for error.

      0. IS. Maglaughlin and J. Hays (with whom was M. 0. Herman), for plaintiff in error. —
    The conspiracy is nothing so far as sustaining the action goes, the foundation is the damage to plaintiff: Hutchins v. Hutchins, 7 Hill 104; Jones v. Baker, 7 Cowen 445; Parker v. Huntingdon, 2 Gray 124; Laverty v. Vanarsdale, 15 P. F. Smith 507; Weakly v. Royer, 3 Watts 462; Chambers v. Lapsley, 7 Barr 24.

      A. B. Sharpe and W. H. Miller (with whom was F. IS. Beltzhoover), for defendants in error. —
    In an action in tort against two jointly the jury cannot assess several damages: Hill v. Goodchild, 5 Burrows 2792; Rodney v. Strode, Carth. 20; 3 Starkie on Evidence 1442; Crane v. Hummerstone, Cro. James 118; Jenkins Cent. 310, pl. 10; Mitchell v. Millbank, 6 T. R. 199; Sedley v. Sutherland, 3 Espinasse 202; Brown v. Oliver, 4 Id. 158; Onslow v. Orchard, 1 Strange 422; Lowfield v. Bancroft, 2 Id. 910; Nicoll v. Glennie, 1 Maule & Selwyn 588. The sum of the authorities is: that where there are separate and distinct wrongs done by two or more persons and no connection shown between the parties, the actions must be separate; and where a joint action is brought against several, a joint act must be proved; and if plaintiff failed in this and proves separate acts he must enter a nolle prosequi against all but one.
   The opinion of the court was delivered, July 2d 1873, by

Agkew, J. —

But one assignment of error in this case requires notice, the answer of the court to the plaintiff’s ninth point. The court was asked to instruct the jury, that in order to sustain an action for libel it is not necessary to prove a joint engagement in making and publishing it; that all that is required is to know that each or any one of the defendants is guilty, and the jury can bring in a verdict against all or any one, or separate verdicts against any two or more of them. The court negatived this point, but said the jury might find a verdict against one of the defendants, but not separate damages against both. The easiest disposition of this assignment of error would be to say that the court having informed the jury they could find against either one of the. defendants, and they having returned a verdict in favor of both, no injury was done even if there was error in the answer; for the verdict proves that neither was guilty. But as the question involved is not clear according to English authorities, it is proper we should dispose of it for ourselves. And we think it is substantially settled on authority in this state. In Bard & Wenrich v. Yohn, 2 Casey 482, it was held that a proof of separate acts not committed with a common design or for a common purpose, and without concert, will not authorize a joint recovery. “ To entitle a plaintiff to a verdict against several defendants as joint trespassers, it must appear that they acted in concert in committing the trespass complained of.” And in Little Schuylkill Nav. Co. v. Richards, 7 P. F. Smith 142, it was held, that when several coal operators, separately and without concert of action, cast their coal dirt into the Little Schuylkill, at their respective mines, and this dirt lodged in the dam of the plaintiff, filling it by accumulation, these operators were not jointly liable for the tort, nor was each liable beyond his own deposit in the stream. The same principle is asserted by the present Chief Justice in Laverty v. Vanarsdale, 15 P. F. Smith 509. Quoting the language of another case, he says, “Where the action is brought against two or more as concerned in the wrong done, it is necessary, in order to recover against all of them, to prove combination or a joint act of all. For this purpose it may be important to establish the allegation of a conspiracy. But, if it turn out on trial that only one was concerned, the plaintiff may still recover the same as if each one had been sued alone.” This is substantially the instruction of the court below in this case. It is also the doctrine of Weakly v. Royer, 8 Watts 460 (a case relied on by the plaintiff in error, and cited in Bard & Wenrich v. Yohn, supra, as sustaining the ruling in that case). The plaintiff in error relies, however, on that part of the opinion in Weakly v. Royer in which Judge Kennedy expresses his own judgment, that after a plaintiff, either in trespass or trover, has been permitted, without objection, to give evidence of several trespasses or conversions, the jury, if satisfied on the evidence, may, and indeed should, give a verdict when not dispensed with by the plaintiff’s election, finding the defendants severally guilty, and assessing the damages severally according to the evidence, leaving it to the plaintiff to make his election as to the one against whom he will take judgment, and at the same time entering a nolle prosequi as to the others. But this is not what the plaintiff’s point called for as the instructions to be given. What Judge Kennedy said, and what he undoubtedly meant, was, that when a jury is in possession of the evidence of separate trespasses or wrongful acts, sufficient to support a finding against two or more separately, the jury may, and should, rid themselves of embarrassment as to their finding, by returning separate verdicts against each, leaving it to the plaintiff, by his election, to cure the error of the joinder, in taking judgment against one. His remarks a.re expressly coupled with the qualification, that the evidence of several trespasses had been permitted to be given without objection. In such a case the plaintiff would be entitled to a several judgment against one as if he had been sued separately, but the jury having equal, or perhaps sufficient evidence against two or more, could not elect for the plaintiff, and therefore might relieve themselves by a finding against each. This is very different, however, from an express instruction to the jury, such as the point calls for, that it is not necessary, in order to sustain the action, to prove a joint engagement to make or publish the libel, and that all that is required is, to show to the satisfaction of the jury, that each or any one of the defendants is guilty of the offence charged, and the jury can bring in a verdict against all or any one, or separate verdicts against two or more of them. It is evident such an instruction would authorize a joint verdict against all, or more than one, without evidence of concert or of a joint act by them. In fact it asks the court to say, that without evidence of combination or joint action the jury may return a joint verdict, or several verdicts to suit themselves. Clearly this is not the law, in this state at least. But there may be cases where, from a conflict of testimony, or want of credibility in some of the witnesses, or where no objection to the evidence has been made, a jury may be in possession of the evidence and yet unable to find concert or joint action, and then they may disembarrasss themselves by verdicts against two or more severally. In such cases the error would be cured by the plaintiff immediately electing the defendant against whom judgment shall be entered, and entering a nolle prosequi as to the others; this is all that is decided in Chambers v. Lapsley, 7 Barr 24. But the fact that several judgments cannot be entered in the same action, is proof that the separate verdicts cannot stand, and the error is only cured by the plaintiff’s election to proceed against one only, as he might have done originally. As a matter of principle it is not proper to join defendants in the same action who have not conspired together or joined in committing the wrong complained of. Their degrees of guilt are rarely the same. One should not suffer from the prejudice existing against the other, nor should the damages against him be aggravated by the odium attaching to the worse conduct of the others, and neither should bear the increased accumulation of costs, caused by the testimony brought against all. As a matter of plain justice, where there is no concert or, joint action, each should respond for his own wrong only. Finding no error in the record, the judgment is affirmed.


author: Williams, J. —

text:
    Hamilton’s Estate. Bradish’s Appeal.
    1. A testator made a will dated November 20th_1871; he made another dated January 13th 1873 ; he made a ■“ codicil to my last will and testament,” dated “ this — day of January 1873.” . By the codicil, after referring to the law relating to bequests to charities, he provided, “ Now I declare said will of 20th November 1871 to be-my last will should I die before the 1st of March 1873, otherwise the will of 13th January 1873 shall be my last will.” He died on the 23d of January 1873. Held, that paper of November 1871 was his will. «-
    2. The paper of January 13th 1873 was not his will, the contingency on which it was to become so never having happened; and it did not therefore revoke the will of 1871.
    3. The codicil and the will of 1873 are to be construed as one instrument.
    4. The will of 1871 spoke from its date, and the charitable bequests were not avoided under the Act of April 26th 1855.
    May 14th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the decree of the Orphans’ Court of Cumberland county : No. 93, to May Term 1873,
    The proceeding in this case arose under the wills and codicil of James Hamilton, deceased.
    By his will called “A.” dated November 20th 1871 ,amongst numerous legacies, he bequeathed and directed as follows, viz.:—

      “ I direct and authorize my executors hereinafter named or a majority of them, or the survivor of them, to sell to the highest and best bidder the three-story brick dwelling-house and store-room now occupied by Mr. Charles Ogilby, and also the two-story br’ck tenement part of which is rented to Mr. James Eakins, with the outbuildings, yards, gardens, as is now included in the lease, to said Charles Ogilby and said James Eakins, together with so much of the corner lot at the intersection of Pitt and High street, numbered eighty-five on the plot of the borough of Carlisle, county of Cumberland, as is occupied at the present time by the aforesaid Charles Ogilby and James Eakins, under the leases given them, with all the buildings and appertenances, thereon situate, and to make and execute deed to the purchaser or purchasers thereof as fully as I might or could do, and on such terms as my said executors or a majority of them may think best, and the proceeds of said sale shall be invested in government bonds to be deposited in the bank or loaned on mortgage, and paid over to the .trustees of the Second Presbyterian Church whenever the principal and interest shall be sufficient to pay off the whole balance of indebtedness of said corporation, with any other benefactions or contributions of others for the new church and lecture-room now in process of building.”
    Of this will he appointed Joseph A. Stuart and Abram Bosler executors.
    By his will called “B.” dated January 13th 1873, he directed as follows :—
    “ 4. I authorize my executors hereinafter named or the survivor of them, to sell to the highest and best bidder all that property comprising the dwelling-house, store-room (a 'three-story brick building,) and the two-story brick building adjoining, at the corner of Pitt and High streets, in the borough of Carlisle, together with the yards, garden and lot of ground, as now leased and occupied by Mr. Charles Ogilby and James Eakins, under the leases given them, and so much of said corner lot number eighty-five as is designated in said leases and occupancy, together with the appertenances thereto belonging; and I authorize my said executors or the survivor to make and execute deed or deeds to the purchaser or purchasers as fully as I might or could do, and out of the proceeds I direct my executors to pay off any indebtedness of the Second Presbyterian Church, Carlisle, Penna., on the building recently erected for worship on their lot, and the balance of the purchase-money shall be invested on mortgage or other securities, as the Orphans’ Court of Cumberland county may direct, and the interest applied annually to rent any vacant pews in such church edifice — viz.: Second Presbyterian Church, Carlisle, as it will pay for one-half of said pews to be appropriated to accommodate strangers, and the other half for such members of the church as do. not feel able to rent a whole pew for their families.”

      Of this will he appointed Joseph Stuart and Abram Bosler executors.
    By both wills he made Robert 0. Bradish the residuary legatee.
    He also made a codicil, part of which is as follows.: * * *
    “ 5. I direct that six hundred and twenty-five dollars, which I have loaned to the “ Fidelity Trust -and Deposit Company,” of Philadelphia, remain at 4 per cent, as at present, and the interest shall bo received by the session of the Second Presbyterian Church, Carlisle, every two years, and request them to appoint some one who shall be allowed, for his trouble whatever said session may think right, to have the Hamilton enclosure repainted, the tombstones cleaned, and the weeds'removed.
    “ 6. Whereas, There is an Act of Assembly, rendering void all eleemosynary bequests and devises if not executed a certain number of days before the decease of the testator; and, whereas, I executed a will dated the twentieth day of November, A. d. 1871. Now, I, James Hamilton, the testator, declare said will of 20th November, 1871, marked ‘ A,’ to be my last will and testament, should I die before the 1st day of March 1873; otherwise the will of 13th of January 1873 shall be and is hereby declared to be my last will. Witness my hand and seal this-day of January 1873. Jambs Hamilton, [seal.]”
    Mr. Hamilton died January 23d 1873.
    The wills and codicil were admitted to probate by the register on the 29th of January 1873, and letters testamentary granted to Joseph A. Stuart and Abram Bosler.
    On the 15th of April 1873, the Second Presbyterian Church in the borough of Carlisle petitioned the Orphans’ Court of Cumberland county, setting out the provisions of the wills, and also the codicil.
    The petition represented as follows:—
    “ It is believed that the property on the corner of Pitt and High streets in Carlisle, directed by the said James Hamilton to be sold, can be sold for a sum fully sufficient, and perhaps more than sufficient,-fully to pay and discharge all the remaining indebtedness of your petitioner; but the said Joseph A. Stuart and Abram Bosler have neglected to sell said property or to take any measures to carry out the directions of the said James Hamilton regarding the same.
    “ Your petitioner therefore prays that a citation may be issued, to the said executors directed, commanding them to show cause-, if any they have, why your Honorable Court should not make- an order 'and decree requiring them to make sale of the property aforesaid, in accordance with the' directions of the said James Hamilton, deceased, and for such other and further relief as. to your honors may seem meet.”

      The executors filed an answer on the 26th of April 1873, setting out the wills, &c., and further that:—
    “ Your respondents are advised that, under the will dated the 20th of November 1871, marked A., and the codicil of the-day of January 1873, in which testator declared said will of 20th November 1871, marked A., to be his last will and testament, should he die before the first day of March 1873, their authority to sell the lots, houses and buildings mentioned in said petition may be doubtful, and they are unwilling to proceed to sell the same without the direction and authority of this Honorable Court. And your respondents would further represent that the aforesaid Robert C. Bradish, son of Col. Jos.Braclish, may be interested as residuary legatee and devisee in the question presented to the court under the aforesaid will; that said Robert 0. Bradish is a minor and has no guardian to take charge of his estate, and that he resides in England.
    “ They therefore pray your honors to make such order in the premises that the interest of the said Robert C. Bradish may be represented in court, before any order or decree touching the premises be made.”
    Joseph Bradish was appointed guardian ad litem of Robert C. Bradish, and Hugh Stuart was appointed guardian of his estate.
    On the 10th of May 1873, the court (Junkin, P. J.) decreed that the “ executors of James Hamilton, deceased, proceed in due time to sell the real estate mentioned in the seventeenth clause of the will of said testator, dated November 20th 1871, in accordance with the directions contained in said clause.”
    The executors, &c., of James Hamilton, and the guardians of Robert C. Bradish, appealed to the Supreme Court, and assigned the decree for error.

      M. O. Herman and J. H Graham, for appellants. —
    A codicil is a republication of the will to which it is attached: Alsop’s Appeal, 9 Barr 381; Flintham v. Bradford, 10 Id. 82; Neff’s Appeal, 12 Wright 509. A subsequent will repeals a prior one, although there bo no revoking clause: Rudy v. Ulrich, 19 P. F. Smith 177.

      Henderson Hays, for appellees. —
    Where tnere are two wills, in some respects inconsistent, the latter revokes the former only so far as they are inconsistent with each other, unless there is an express clause of revocation: Price v. Maxwell, 4 Casey 23; Jones v. Murphy, 8 W. & S. 275; Catto v. Gilbert, 9 Moore P. C. C. 131; Freeman v. Freeman, 5 DeG., M. & G. 704; Harwood v. Goodright, Cowper 87; Duppa v. Mayo, 1 Saund. 276, f. note 4 on p. 278 h; Flintham v. Bradford, 10 Barr 82. To constitute a valid revocation the revoking act must be done animo revoeandi:
      Boudinot et al. v. Bradford, 2 Yeates 170; Lawson v. Morrison, 2 Dall. 287; Burns v. Burns, 4 S. & R. 295; Irish v. Smith, 8 Id. 580. A codicil is part of a will: Lovelass on Wills 371; Ram on Wills 263. A codicil or will may depend on a contingency: Parson v. Lanoe, 1 Ves. Sr. 190; Sinclair v. Hone, 6 Ves. Jr. 608; Dougherty v. Dougherty, 4 Metc. 25; In re Winn, 7 Jurist N. S. 764; Roberts v. Roberts, 8 Id. 220; Todd’s Will, 2 W. & S. 145. Cancelling a will brings a prior will not destroyed into operation: Goodright v. Glasier, 4 Burrows 2514; Harwood v. Goodright, Cowper 87.
   The opinion of the couit was delivered July 2d 1873, by

Williams, J. —

It is clear that the testamentary paper of January 13th 1873, admitted to probate by the register, cannot, be regarded as the will of James Hamilton. It is not his will, for the contingency upon which it was to take effect never happened: Todd’s Will, 2 W. & S. 145. It was a provisional will, and was only to become operative if he did not die before the 1st of March 1873; if he did, it was to have no force or effect. He died on the 23d of January 1873, and therefore, by the express provisions of the codicil to which it is subject, it did not take effect as his will. If, then, it never had any force or validity as a will, did it revoke the will of the 20th November 1871, which was also admitted to probate by the register ? It did not revoke it in express terms, for it contains no revoking clause. It did not revoke it by implication, for the contingency upon which it was to take effect never happened. If it did not take effect as a will, it did not take effect at all, and was as powerless to revoke the prior will as if it had never been made. But if it had contained a revoking clause, it does not follow that it would have repealed the former will. The fair construction in such case would be that the clause was intended only to operate if the paper took effect as a will; but if not, then it was to have no effect: Rudy v. Ulrich, 19 P. F. Smith 177. If at the time the testator executed the paper of the 13th of January 1873, he did not intend that it should be his will if he died before the 1st of March, then it is clear that it did not revoke the will of the 20th of November 1871. The codicil shows that he did not intend that it should be bis will if he died before that time. It is true that the codicil has no other date than that of the month and year; but, in the absence of all evidence as to the precise time of its execution, the presumption is that it was executed at the same time with the paper of which it was intended to be part. But whether it was executed at that time or on a subsequent day, its effect on the paper is the same. It is an addition or supplement to it, and the whole must be construed together as one instrument. Thus construed, can there be a doubt that the will of the 13th of January 1873 was intended to be provisional, and that it was not to take effect if the testator died before the 1st of March following ? The fallacy of the appellants’ argument lies in the assumption that the will of the 20th of November 1871 was revoked ipso facto by the execution of the will of the 13th of January 1873. But it was not revoked unless the testator intended to revoke it, and in the face of the declaration in the codicil no inference that he intended to revoke it can possibly arise. There is no pretence that the codicil was intended as an addition or supplement to the prior will. It was manifestly intended to be a part of the latter will, and the sole purpose of its sixth item was to convert what would otherwise have been an absolute, into a conditional will. It changed the character of the instrument and prevented it from operating as a revocation of the former will. What rule or policy of law, then, prevents us from giving to it the effect which the testator intended that it should have ? Why should it be so construed as to defeat the end for which it was designed ? Whether the testator’s gifts of charity stand or fall, it is clear that the will of the 20th of November 1871 must be regarded as his will. If not, then he left no will; but so to hold would shock all sense of right and justice. From what time, then, does it speak ? It was never republished, for it was never revoked; and, therefore, it speaks from its date. And, if so, its bequests of charity are not avoided by the statute of 26th April 1855, which forbids such gifts within one month of the testator’s decease. The decree of the Orphans’ Court must, therefore, be affirmed.

Decree affirmed, at the costs of the appellants to be paid out of estate of the testator.


author: Agnew, J. —

text:
    Glatfelter versus The Commonwealth.
    1. The relief fund established by Act of April 8th 1862 has no connection with the “ military fund.”
    2. A settlement of the accounts of a county treasurer of the “military fund ” by the county auditors, not appealed from, is conclusive on the Commonwealth.
    3. The 49th section of Act of April 15th 1834, authorizing county auditors to audit, &c., the accounts of county treasurers, for money received for Commonwealth, is in force.
    4. Note c, 1 Bright. Purd., p. 300, stating that the 49th sect, of Act of 1834 is repealed, is erroneous.
    5. The Acts of Assembly on the jurisdiction of county auditors over the accounts as to the “military fund,” construed.
    May 19th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercür, JJ.
    Error to the Court of Common Pleas of 2, to May Term 1873. Dauphin county: No.

      This was an appeal, filed November 4th 1871, by John Glatfelter, treasurer of the county of York,, from a settlement by the accounting officers of the Commonwealth, made September 14th 1871.
    The accounts were as follows, viz : — - “ John Glatfelter, (late) treasurer York county, in account with
    the Commonwealth of Pennsylvania, Dr.

    Militia Tax.
    To amount of said tax for the year 1869, as per state-
    ment of' Kell, herewith filed, . . . $2218.00
    Deduct sundry credits, . . 1090.46
    Due Commonwealth, . . > . $1127.54
    Accrued interest, .... 112.77
    Due Commonwealth, . . . $1240.31”
    “ John Glatfelter, (late) treasurer York county, in account with the Commonwealth of Pennsylvania, Dr.

    Militia Tax.
    To amount of said tax for the year 1868, as per statement herewith filed, .... $2233.50
    Deduct sundry credits, . . . 1188.83
    Due Commonwealth, . . . $1044.67
    To amount due Commonwealth for the year 1869, $1240.31
    Militia tax, as above, . . . 1044.67
    Accrued interest, . . • . . 167.15
    Due Commonwealth, . . . $2452.13”
    On his appeal, Glatfelter filed, seven “ specifications of objections;” none are necessary to notice but the following:— '
    2. Because the said appellant settled his accounts annually as treasurer of the county of York, for the years 1868 and 1869, with the auditor-general, and holds his acquittances in full for the balance due the Commonwealth on said settlements.
    3. Because the appellant is entitled to a credit of $721.65 in the year 1868, and $528 for the year 1869, for money paid to assessors of the county of York, for their services in making rolls, giving notice, &c., which moneys were paid on orders issued by the commissioners of said county for that purpose, and allowed by the auditors of the county of York, instead of the sum of $134.01 in the year 1868, and $133.08 in the year 1869, allowed in the settlement from which this appeal is taken.
    4. Because the said appellant is not allowed a credit of $400 in the year 1868 and $400 in the year 1869 for money paid by him to the commissioners of the county of York, for their services in making enrolments required by law in regard to said military fund, and allowed by the auditors of York county in the adjustment of his accounts.
    The appeal ivas tried April 29th 1872, before Pearson, P. J.
    The Commonwealth gave evidence of the amount of militia tax paid to Glatfelter, as shown by his books as county treasurer in his own writing, for the years 1868 and 1869, being the same as those charged to him in the settlement by the Commonwealth’s officers.
    The Commonwealth further (under objection by the defendant and exception) gave in evidence the settlement from which the appeal was taken, and proved that no charge for military tax had been made against Glatfelter prior to that settlement.
    The defendant testified that the military tax had been paid out by him in accordance with the county auditor’s report, and that he had paid the balance in his hands to his successor as county treasurer. He also testified specifically as to the items of credit in his account.
    The settlements of Glatfelter’s accounts with the Commonwealth, by the accounting officers, on May 24th 1869, and May 16th 1870, were also given in evidence; these settlements showed that Glatfelter had paid in full all that appeared to be due by them; neither settlement contained any charge against him for military tax.
    The following certificate was also given in evidence:—
    “ We, the auditors of York county, respectfully report, that we have carefully examined and audited the military tax accounts of John Glatfelter, treasurer of said county, and after deducting all his credits, we find a balance in his hands, and due the county, of one hundred and forty-five dollars and ninety-seven cents, which is submitted.
    “ In witness whereof, we hereunto set our hands and seals, this 12th day of June 1869.”
    Also a similar certificate dated February 8th 1870, finding a balance due by Glatfelter to “the Commonwealth of $275.38.”
    Both auditors’ reports were approved by the Court of Common Pleas of York county.
    The defendant offered'to prove that the commissioners of York county in 1861 made an appropriation of $10,000 for the relief of the families of volunteers, and that the treasurer of that fund disbursed it for relief purposes until 1867, when he paid $857.26, the balance remaining in his hands, to the county commissioners.

      This was objected'to by the Commonwealth, rejected by the court and a bill of exceptions sealed.
    The Commonwealth under objection by defendant and exception proved that there was a military organization in York county in 1866, which was in force in 1868 and 1869.
    The defendant submitted the following points, both which were denied :—
    3. The accounts of county treasurers, of moneys received for the use of the Commonwealth, must be settled by the county auditors, and not by the auditor-general. The Commonwealth having proved, in this case, that the accounts of the defendant, as treasurer of York county, were settled by the county auditors, and not appealed from, such settlements are conclusive.
    4. Under the 5th section of the Act of 7th of April 1870, the state has no interest in the military fund, and the auditor-general no jurisdiction over the settlement thereof; the verdict in this case must, therefore, be for the defendant.
    “ The court, after stating the facts in the case and referring to the auditing of the accounts by the county auditors, said:—
    Taking it for granted that they were audited, yet we are of the opinion and so instruct you that the county auditors have nothing to do with the military accounts, they are out of their jurisdiction, are not to be settled by them but by a military board or the state officers. The auditors might as well undertake to settle the accounts of the Bank of York County as those military claims. When the auditors make a settlement of a matter within their jurisdiction and regularly file the same according to law, it is conclusive on the state and all parties, unless appealed from. What was actually embraced in this settlement we do not know, not having read the papers, but we instruct you that so far as it embraces these military claims it was void and heyond their jurisdiction ; it might as well have been made by a board of township auditors. The orders drawn on the treasurer by the county commissioners to pay out of this fund are also void, as the militia law provides for the money being drawn by the orders of a military board, and not by the county commissioners. The accounts of the treasurer are also to be settled by the same tribunal when there is one. If there is none, then, as we conceive, it must be done by the state accounting department, or the money remain in the hands of the treasurer undrawn and the accounts unsettled. It is proved by the defendant that he paid no part of this fund to the families of volunteers. There were none to whom it could have been paid at that time. * * *
    “We come now to the only point of any legal difficulty in the ease — had the state officers jurisdiction over this account, and the legal authority to make a settlement? They are clearly authorized by the Act of 1871 to settle the accounts of all persons indebted to the state, and holding money to which she is entitled. This is a point not raised in the specifications, but it presents itself directly to our consideration. By the 5th section of the Act of April 7th 1870, Pamph. L. 63, the county treasurers are required to hold the military fund and disburse the same according to the direction of the 99th section of the Act of 1864, but in any county where there is no military organization the money is to be paid at the end of each year to the school boards of the respective districts, in proportion to the number of taxable inhabitants therein. As we understand the law and the facts there was a volunteer military organization in York county during the whole term of this treasurer, and such organization still continues. It is in proof by General Russell, the adjutant-general, that there were four uniformed volunteer military companies in York county, regularly organized as companies, all of which had drawn arms from the state, and which were entitled to receive certain sums to reimburse the expense of uniforms and their annual outlay for various purposes, designated in the military laws, though there was no brigade organization. As we construe the law this fund cannot go to the school board in any county where there is a military organization entitled to any part thereof. Any one of these companies constituted a military organization. Therefore the school boards could not claim the money. By the Act of 21st April 1858, Pamph. L. 425, and other parts of the same and subsequent laws, this fund is to be paid out for the benefit of the uniformed militia of the county, to be drawn from the treasury by the officers of the brigade, and whatever is not wanted for that purpose is to go into the state treasury for the use of the general military fund. By the 99$i section of the Act of May 4th 1864, the brigade officers constitute a board, with power to audit and adjust all claims on the brigade fund, for expenses, &c., and draw their order on the treasurer for the amount. When no such board exists, it is very possible that the organized companies may find a difficulty in drawing their money for want of the proper orders, though we are inclined to believe that they can draw out of the state treasury — they are clearly entitled to receive it under the law.' There being no other tribunal lawfully entitled to settle the account of the county treasurer, and all surplus being due to the Commonwealth for military purposes, the settlement must be made by the accounting department. It is pretty difficult to determine, under the numerous and complex militia laws, what are or are not in force; but so far as we have seen, this part of the Act of 1858, which gives the surplus to the state treasury, has not been repealed. We are, therefore, of the opinion that the auditor-general and state treasurer can lawfully settle this account, and the general outlines of the settlement made by them are correct. Some of the details must be corrected in the manner indicated, such as the allowance of the sum paid to the succeeding treasurer.”
    The verdict was for the Commonwealth for $2268.85.

      The defendant took a writ of error and assigned for error the rejection of his offer of evidence, — the denial of his points and the charge of the court.

      J. Gribson and L. W. Sail (with whom was J. W■ Bittinger), for plaintiff in error;
    as to the conclusiveness on the Commonwealth of the settlement by the county auditors, cited Act of April 15th 1834, sect. 49, Pamph. L. 546, which provides that they shall audit, &c., the accounts of the county treasurer, receiving money for the Oommonwealth. Sect. 56 of same act gives an appeal by the Commonwealth within four months, and by the county and treasurer within sixty days, after which time if there be no appeal the settlement is conclusive: Commonwealth v. Lamb, 3 W. & S. 435; Northumberland Co. v. Bloom, Id. 542; Blackmore v. County of Allegheny, 1 P. F. Smith 160; Elder v. Juniata Co., 5 Id. 485.
    The Oommonwealth had no interest in the fund. Sect. 3, pl. 8, Act of April 21st 1858, Pamph. L. 425, is repealed: Acts of April 8th 1862, Pamph. L. 314 ; May 15th 1861, sect. 14, Pamph. L. 754; May 4th 1864, sects. 95, 96, Pamph. L. 239-240; April 7th 1870, sect. 5, Pamph L. 62.

      J.- Kell and W. Mo Veagh (with whom were L. B. CHlhert, Dep. Atty.-G-enl., and Bimmiek, Atty.-Grenl.) for Commonwealth. —
    Sect. 49 of Act of 1834 is repealed by sect. 1 of Act of March 15th 1847, Pamph. L. 355. The “ military fund” is exclusively for military expenses, and is not to be paid out by county treasurers, but by a board of officers, and the balance is to be paid into the" state treasury; Act of April 21st 1858, sufra. A military board, consisting of the officers of the brigade, is authorized to audit the military fund : Act of May 4th 1864, supra, sect. 99.
   The opinion of the court was delivered, July 2d 1873, by

Agnew, J. —

The subject of this controversy is the military fund paid into the hands of the defendant as treasurer of York county for the years 1868 and 1869. If the county auditors had authority to settle the treasurer’s account for this fund, it is conceded, the case is at an end, no appeal having been taken by the Oommonwealth from the settlement of the auditors. This, therefore, is the question to be determined. To prevent confusion, it is proper to say at once that the relief fund established by the Act of 1862 has no connection with the military fund. The relief fund account was by that act to be settled by the county auditors, but the settlement of the account for the military fund depends on other laws.

Before examining the legislation specifically applicable to the military fund, it is proper to notice the general jurisdiction of the county auditors over the accounts of the treasurer for funds collected for the Commonwealth. By the 48th section of the Act of 15th April 1884, the accounts of the county treasurer are to be settled by the county auditors, the balance stated, and a report made thereof to the Court of Common Pleas: Pamph. L. (1834) 545; 1 Brightly Purd. 300, pi. 10. The 49th section makes it the duty of the auditors, also', to audit, settle and adjust the accounts of the treasurer of the county with the state treasury, and make a separate report thereof to the court: Pamph. L. (1834) 546. This coincides with the provision in the 38th section, p. 543, making it the duty of the county- treasurer to keep separate accounts of all moneys received by him on behalf of the Commonwealth, from the various sources named in the section, one of which is “ exempt fines.” Mr. Brightly, in note o to page 300, vol. 1, Dig., says the 49th section is repealed by the Act of 15th March 1847, § 1. Hence he has omitted the 49th section from his Digest. This is an error, the repeal being partial and relating only to those officers named in the Act of 21st May 1846, § 10, to which the Act of 1847 is a supplement: Dig. 2d vol., p. 1392, pi. 208. The county treasurer is not one of them. The pamphlet laws clearly evince this, and an inquiry at the auditor-general’s office resulted in a statement of the fact that the accounts of the county treasurers in the several counties are settled as before the passage of the Act of 1847; and this agrees with my own knowledge. The county auditors, therefore, have jurisdiction of the account of the military fund, unless by special legislation that fund is an exception. But it is not, as an examination of the laws on the subject conclusively shows.

The act to revise the militia system and to provide for the training of such as shall be uniformed, passed the 17th of April 1849, repealed all former laws and supplements to laws on the subject of the militia, except those parts relating to the adjutant-general, to contested elections, courts-martial, and calling the militia into the actual service of the United States: Pamph. L. (1849) 670, § 21. This act, therefore, furnishes a beginning to the inquiry as to the military fund. Under this law, after the enrolment, all ununiformed persons between 21 and 45 years of age are subjected to a payment of fifty cents, which the 8th section, p. 666 — 67, required the county commissioners “ to add to the amount of the state tax of each delinquent, to be collected with the same under the same authority, and in all respects as authorized in the case of the collection of county taxes.”

The 10th section then provides for the duties of the county treasurer. Thus this military fund is assimilated directly to other state and county.funds in its collection and custody, and there being no other provision in the Act of 1849 as to the settlement of the county treasurer, it must be audited and settled in the same manner as they are. This point is settled by the next act, a supplement to the Act of 1849, passed April 30th 1853 (Pamph. L. 654). The 10th section expressly enacts that it shall be the duty of the county treasurer to prepare annually a statement of the receipts and expenditures of the military fund of the said county, setting forth the amount received from each collector separately, and the amounts paid each person to whom money shall be due, which statement, after being examined and passed by the county auditors, shall be published as other accounts of the treasurer, and the expense paid out of the military fund. The 2d and 3d sections, referring to payments to the treasurer, also bear on the question. The Act of 1853 seems not to have been brought to the attention of the learned judge in the court below, as I do not find it in either paper-book. And indeed the Act'of 1849 appears not to be noticed. The Act of April 21st 1858 (Pamph. L. 421) is the next law, and is important in its bearing. It is a general revision of the militia laws, but is without a repealing clause. The same general system is re-enacted for the enrolment of the militia through the instrumentality of the assessors and commissioners, and for the collection of the commutation-tax of fifty cents for every person enrolled and liable to its payment, and for the collection of fines and penalties. This tax is to - be collected at the same time and in the same manner as taxes are collected in each county, under warrants issued by the commissioners. It is made thé duty of the county treasurers to procure suitable books in which shall be entered an account of all moneys received in pursuance of the act, and which shall be called the Military Fund of the county, and of payments out of the fund. The treasurer shall also report to the adjutant-general, at the close of each year, the amount of moneys received as commutation and fines, and paid out, and the balance on hand.

Thus, throughout the act, the county treasurer is made the custodian of the military fund, as he is of other funds of the state and county, while the law is silent as to the settlement of his account. There being no repealing clause, and no .substitute, his account is necessarily to be audited and settled under former laws. But as the court below was evidently misled by certain provisions of the Act of 1858, it is proper to notice them. The judge held, that the treasurer’s account was not to be settled before the county auditors, but by a military board. This was a misapprehension of the 10th section. It provides for the creation of a board of officers, whose duty it is made to “ audit all just claims on the military fund of such brigade for contingent expenses and for the per-diem pay of all officers, musicians and privates, for service and duty performed in and for said brigade.” The evident purpose of this board is to adjust and allow the just claims upon the military fund before payment shall be made by the treasurer, for the section immediately proceeds to add: “ and shall make their-order on the proper county treasurer, which shall require him to pay such order out of any money in his hands belonging to the military fund of the brigade.” The meaning is made still more obvious by the 8th clause of the 3d section (p. 425), which says: “ and no moneys shall be paid from such fund (military) by the county or city treasurer but upon orders of a board of officers, as provided in this act (section 10th), countersigned, &c., &c.; and the said board shall settle their accounts with the county or city officers.”

Thus even the accounts of the board of officers are to be settled before the county auditors. They bear the same relation to the military fund that the commissioners bear to the county funds, in determining the just claims upon it and settling their accounts, like the commissioners for its proper administration. This is the'check provided by the law against the allowance of unjust claims upon the military fund, and for a periodical settlement therefor. Thus the account of the county treasurer, who can pay only on the orders of the board of officers, must necessarily be audited and settled afterwards, and of course according to prior laws, for no substitute is provided in this law.

Next we find the last proviso in the 28th section of the Act of 15th May 1861 (Pamph. L. 757), suspending, during the existence of the war, any payment for military parades to volunteers not in actual service, and directing the military tax to be collected and paid into the treasury of the Commonwealth to meet the expenses of the militia mustered into actual service. That this was but a different appropriation, and did not change the mode of collecting and accounting for the military tax, is made obvious by the Acts of 4th March 1862 (Pamph. L. 76), and 8th April 1862 (Pamph. L. 314). The latter made a new appropriation of the tax to the relief fund, and the several county treasurers were authorized and required to pay the same on orders of the commissioners for that purpose. The receipt and disbursement of the military fund remaining thus with the county treasurer, his account remained to be settled as before, for no change in this respect was made. In the year 1864 the militia system again underwent a general revision in the Act of 4th May (Pamph. L. 221). Under this act each county having the minimum number of enrolled militia constituted a brigade, and the treasurer of each city and county was expressly required to receive and disburse all moneys arising from the act payable into the brigade fund ; and this fund was further increased by numerous fines and penalties: vide §§ 71-73, 76, 78, 79, 80, 87, 88, 89. This act provides no mode of auditing or settling the accounts of the treasurers, and the repealing clause is only of inconsistent acts. Thus again the law left the account of the treasurer to be settled as provided for in prior laws. The 99th section, p. 240, also pn.vides for the creation of a military board, who shall have power to aiidit and adjust all claims upon the brigade fund for expenses accruing under the provisions of this act, and shall make their order on the treasurer for the payment thereof.” This is a repetition of the provision in the Act of 1858, requiring a military board for the adjustment of claims on the military fund before they shall be paid by the treasurer, and therefore leaves him as before to settle his account of disbursements before the county auditors according to law. This is the last law, for the Act of 1870 passed as a supplement to it, was after Mr. Glatfelter had gone out of office, and has no bearing on the case. It may be remarked upon it, however, that it is pari materia and repeats the duties of the county treasurers under the 99th section of the Act of 1864. Thus a review of the legislation of the state proves conclusively that neither the Act of 1834, conferring general jurisdiction upon the county auditors to settle the accounts of county treasurers with the state treasury, nor the special Act of 1853, expressly conferring it over the military fund, has been repealed. In all the revisions of the militia laws the county treasurers being made custodians and disbursers of the military fund, just as in the case of other public moneys coming into their hands, it is evident the legislature did not consider it wise or necessary to change the mode of auditing and settling their accounts. A new system would not only complicate settlements, but might lead to entangling questions. The accounts of the plaintiff in error for 1868 and 1869 having been examined and passed by the county auditors, it is not in the power of the auditor-general to resettle them. According to numerous cases, the settlement of the auditors is final and conclusive, unless appealed from under the 56th section of the Act of 1834 (Pamph. L. 547), which includes the Commonwealth by name; the 57th section also allowing the Commonwealth four months after the filing of the report for an appeal, while it allows the officer but sixty days.

Judgment reversed, and a venire facias de novo awarded.


text:
    Commonwealth versus Pittsburg, Fort Wayne and Chicago Railway Co.
    1. A profit upon the capital or investment of a corporation, either made or passed to the stockholders without declaration of a dividend, or a dividend declared, becomes the measure of the state tax on dividends.
    2. If a dividend be declared, the stock is taxable on the basis of the declaration ; and the company is estopped by the declaration whether the dividend be earned or not.
    3. A nominal or arithmetical increase of shares without transferring to the stockholders anything out of the treasury or property of the corporation, is not a dividend or profit, either made or declared.
    4. A railroad company leased its road to another corporation for nine hundred and ninety-nine years, at 12 per cent, per annum on its capital; the first company increased the number of its shares 71 per cent, (the par value of both the original and increased shares being $50), on which the stockholders were to receive 7 per cent, dividend, being the same amount they would have received on the original number of shares at 12 per cent. Held, that this increase was not subject to state taxation as a dividend or profits.
    5. Acts of 29th April 1844 and May 1st 1868, as to taxation of corporation stock, construed.
    6. Atlantic and Ohio Telegraph Co. v. Commonwealth, 16 P. F. Smith 57; Citizens’ Passenger Railway Co. v. Philadelphia, 13 Wright'251; Commonwealth v. Cleveland, Painesville and Ashtabula Railroad, 5 Casey 370; Le-high Crane Iron Co. v. Commonwealth, 5 P. F. Smith 448, remarked on.
    May 19th 1873.
    Before Read, 0. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Dawpliin county: Of May Term 1873, No. 32. -
    This proceeding was by appeal filed December 28th 1870, by The Pittsburg, Fort Wayne and Chicago Railroad Company from the settlement made against them October 26th 1870 by the accounting officers of the Commonwealth.
    The settlement was for tax on capital stock and dividends claimed by the Commonwealth to he due from the company up to July 12th 1870. The amount found by the settlement to be due to the Commonwealth was $48,546.14.
    On the 23d of March 1870, J. P. Farley, the auditor of the company, furnished to the auditor-general, under date of March 23d 1870, “ The following statement, showing the date, amount and rate per cent, of each dividend declared, and the amount of capital paid in at the time the respective dividends were made, during the year ending December 31st 1869:—

    In the settlement the accounting officers of the Commonwealth treated the difference between $11,497,500, the original capital stock and $19,665,000, “the guarantied stock” as a dividend of profits of 71 per cent, on the original stock and taxed the company accordingly ; the correctness of this the company denied.
    The question was raised by the following circumstances :
    On the 7th of June 1869, the company leased their road to the Pennsylvania Railroad Company for 999 years at a clear annual rent of 12 per cent, per annum upon the capital, which was then $11,497,500. On the 7th of June, the Pittsburg, Fort Wayne and Chicago Railroad Company determined to issue 171 shares for each 100 shares of the stock then held by the stockholders, and to pay on the new stock a 7 per cent, dividend instead of 12 per cent, upon the original capital. The amount which each stock-' holder would receive on his increased number of shares after the conversion would be the same as that received by him before; the profits to be divided before and after the conversion, were the same, viz.: $1,380,000, being the rent at the rate of 12 per cent, on the capital stock, paid by the Pennsylvania Railroad Company. The ease was tried November 26th 1872, before Pearson, P. J. The Commonwealth gave in evidence the return made by the company as given above and the settlement.
    Also the following letter:
    “Pittsburg, Fort Wayne and Chicago Railway, (Pennsylvania Railroad Co., lessee,)
    Office of the auditor, Pittsburg, March 30th 1870. Hon. J. F. Hartranet, Auditor-General,
    Harrisburg, Pa. :
    Dear Sir : — Yours of the 24th inst. received, in reference to report of dividend on capital stock for the year 1869.
    In answer to your question as to increase of capital since June 30th 1869, I enclose you a copy of circular to stockholders and lease to the Pennsylvania Railroad- Company, in which, by referring to pages 11 and 12, you will find a full and satisfactory explanation of the increase of capital. Also enclosed you will find circular referred to in my letter of the 23d inst.
    Yours, truly,
    J. P. Farley, Auditor.”
    The Commonwealth then gave in evidence the circular to the stockholders, as to the lease to the Pennsylvania Railroad Company, viz.:—
    “ Pittsburg, Fort Wayne and Chicago Railway Company, 1 Office of the Secretary, Pittsburg, June 30th 1870. j
    At the adjourned annual meeting of the stockholders of this company, held in the city of Pittsburg, Penna., on the 24th day of June, A. D. 1869, the following'resolution was adopted, viz.:—

      Resolved, That inasmuch as in and by the provisions of the lease of the railway of this company to the Pennsylvania Railroad Company, after satisfying the liabilities of the company for interest and sinking funds, a perpetual dividend fund is provided, adequate to pay twelve per cent, upon the existing stock of this company, free and clear of all taxes, which may operate as a deduction from said dividends, it is expedient that a guarantied stock entitled to dividends at the rate of seven per cent, per annum, payable quarterly in such form and with such guaranties as the board of directors may prescribe, and of such aggregate amount as the annual rental of one million three hundred and eighty thousand dollars shall suffice to pay dividends upon, at the aforesaid rate of seven per cent, per annum, shall be created, and the same shall be in substitution of the now existing stock, in such manner and on such terms as the board of directors may provide; and that the board of directors, and such committee or officers as they may designate, are hereby vested with all powers which the stockholders can confer, and which may be necessary or proper to carry this substitution into complete effect.”
    Then followed a resolution constituting an executive committee, with the powers of the board of directors.
    “Pittsburg, Fort Wayne and Chicago Railway Oo., 7 Office of the Secretary, Pittsburg, June 30th 1870. j
    ‘ In pursuance of the foregoing, the executive committee ordered that there should be issued to the stockholders new certificates, to be called ‘ guarantied dividend stock,’ in exchange for the old cer.tificates, at the rate of one hundred and seventy-one shares of new stock for each one hundred shares of old.
    “ The president was directed to prepare new certificates of stock in accordance with this plan, and cause the same to be issued to' the shareholders on their surrender of the old certificates.
    “ The stockholders have surrendered, with the exception of a small amount, all the old certificates and taken new in exchange.”
    The Commonwealth offered in evidence a pamphlet signed “ Samuel J. Tilden, trustee,” which was the circular referred to in Mr. Farley’s letter of March 30 th 1870, being “A Circular to the Stockholders and Bondholders of the Pittsburg, Fort Wayne and Chicago Railway Company.”
    The parts to which Mr. Farley refers the auditor-general, on pp. 11 and 12, were read; the remainder was rejected and a bill of exceptions sealed for the Commonwealth; Judge Pearson saying
    “The parts read are proper as referred to by an accredited officer of the company in answer to the letter of the auditor-general. That does not make the residue, signed by Mr. Tilden as trustee, without proof that he was such, and in that capacity authorized to make admissions. The reference to certain pages as containing facts will not amount to admissions by the officer that all contained in the pamphlet is correct, but merely that such is the case with the pages referred to.” Pamphlet rejected.
    The paragraphs of circular read to the jury were :—
    “ The stockholders become entitled to the benefit of a fund adequate to give them twelve per cent, on the present amount of stock, free and clear of all taxes, whether federal or state, which are collected in any manner through the corporation, and are guarantied perpetually in the enjoyment of that fund.
    “ In this connection, it is proper to advert to the proposal to convert the present stock, which would be entitled to dividends of twelve per cent., free of deductions for taxes, into a new stock, which would be entitled to dividends of Seven per cent., quarterly, free of such deductions.
    “ That measure is, in this instance, totally clear from every question of personal interest or public policy, except whether it will be advantageous to the stockholders. The annual sum, receivable in quarterly instalments, is the same in either case; and the security to which that annual sum furnishes the income, is perpetual.

      “ The proposed new capitalization has no element in common with what is sometimes called the watering of stocks. It involves none of the expectation of equal dividends on increased issues, which lends attraction, sometimes illusory, to such financial expedients. It does not capitalize temporary prosperity, favorable seasons or abundant harvests, or speculative anticipations of the future, or the sanguineness of human hopes. It capitalizes only a fixed and perpetual money income, better secured than almost any first-mortgage bond.”
    The paragraphs excluded were:—
    “ In the mean time, the policy of the company has been to strengthen itself by re-investing its surplus earnings in the improvement of its line, and enlarging its capacity, both as to the amount and the economy of its business.
    H® * if® *

      “ But' in fact the nominal par of the stock is far below the amount of actual money invested, and far below the actual cost to the proprietors.
    ifc ifc ‡ í{< ^ *
    “ During that four years, about three and three-quarter millions of dollars of net earnings were re-invested in improving and equipping the line, and all of it was invested economically and productively. In all, nearly seven millions of net earnings have been thus re-invested, without counting interest thereon, and.without adding a dollar to the stock or bonds of the company; and detailed statements of the nature of the investments have been annually made; and the property which has been added remains visibly to attest the wisdom and prudence of the policy.
    ifc # ífc H®- * H® H®

      “ The real estate of the company at Chicago, Allegheny City and Pittsburg, is represented on the books at not more than from one-third to one-half its original cost, not more than a tenth of its present value.
    >}i * ‡ ❖
    “ If stock had been issued for the money which has been invested, but not represented, and for dividends thereon, at the rate of seven per cent., or if stock had been issued for dividends withheld, the present amount of the stock would have been doubled. If ten per cent., instead of seven, had been adopted as the proper rate of remuneration, and stock issued accordingly, the present amount of the stock would have been much more than doubled.
    ij< * * ‡ i¡< ífc
    “ A seven per cent, stock, on which dividends would be guarantied by net earnings of five times their annual amount, may be considered a more certain and reliable security than almost any first-mortgage bond of the best class, while it has many peculiar advantages for the investor.”
    In his charge to the jury, Judge Pearson, after stating.the facts, said, amongst other things: * * * “ The rental to be paid to the company remained the same, $1,380,000 ; the amount of the money to be annually received by the stockholder the same, but he had an increased number of shares on which he was paid seven per cent, out of the same fund, instead of the twelve per cent, guarantied by the arrangement with the Pennsylvania Railroad Company. The question presented for our consideration is, is that a stock dividend ? It is an increase in the number of shares to be held by each stockholder, but they are of precisely the same value, and dividing to the holder a like sum of money. He receives no more money on his 171 shares than he was entitled under the lease to have on the 100. There cannot be any increase until after the expiration of the lease. The rent remains the same. The shares are subdivided for the convenience of the holder, not to increase their value or add to their income. We are unable to see any distinction between this case and that of 1000 shares-of stock, each entitled to one hundred dollars a share, and the same stock increased to 2000 shares, each entitled to fifty dollars. * * *
    “ We should say here as on several other occasions, that the state cannot be cut out of her taxes by any changes of stock or species of legerdemain; but it is the same to her whether she recover at the rate of one half-mill on each one per cent, of dividends made and declared, computing the same on stock dividing at 12 per cent., or on 7-12th more shares of stock declaring dividends at seven per cent.; the amount of money and tax are identical. The net earning received by each individual is the same. The intention of the state is to tax substantial dividends, net earnings — not a shadow <_r myth. By whatever name the department pleases to call it, it is plain to be seen that there is neither a stock or cash dividend here; it is a mere sub-division of the stock at a less rate of interest. There is but one difficulty in the case, and out of that this litigation has arisen. In making his report to the Auditor-General, J. P. Farley, the auditor of this company, in his item of Sept. 30th 1869, sets it down as “guarantied stock” $19,665,000, which looks as if the stock was so increased from $11,497,500 to the holders; and if it so stood unexplained it should be conclusive against the company. The same report, however, clearly, shows that it was done in the manner already indicated. We must take all of the report together; it was all given in evidence by the Commonwealth, as also that part of the pamphlet referred to in the auditor’s letter read, as marked on pages II and 12. Taking all of the facts into consideration, as proved by the plaintiff, they establish the case as stated in our charge. * * * We are of the opinion that the whole tax so charged is illegal. The company was lawfully taxed according to the settlement attached to the appeal, which is perhaps the most full and correct, with a tax of 1J mills on $16,524.51, amounting to $24.78, which is not paid, and for which you will render a verdict, with interest thereon at the rate of 12 per cent, per annum, after sixty days from the date of the settlement, amounting to $31.32. .
    The verdict was for the Commonwealth for $31.32.
    The Commonwealth took out a writ of error and assigned for error the rejection of the whole offer of evidence, and the charge of the court.

      L. D. Gilbert, Deputy Attorney-General, and Wayne Mg Veagh (with whom was DimmicJc, Attorney-General), for Commonwealth, plaintiff in error. —
    In assessing tax there is no difference between dividends actually paid to the stockholders and profits added to the stock : Commonwealth v. C. P. & A. R. R. Co., 5 Casey 373; Commonwealth v. Crane Iron Co., 5 P. F. Smith 448. The Commonwealth has nothing to do with the agreement of lease with the Pennsylvania Railroad Company: Commonwealth v. A. & O. Telegraph Co., 16 P. F. Smith 57.

      J. W. Simonton and Blade, for defendants in error.
   The opinion of the court was delivered, July 2d 1873, by

Agnew, J. —

The whole question in this case depends on the fact wnether the increase in the stock 'of this company was a stock dividend. If it was, it must be conceded that this increase is the subject of the tax of one-half mill for every one per cent, of dividend, under the fourth section of the Act of May 1st 1868: 2 Brightly’s Digest 1382, pi. 157. A stock dividend is a thing well understood, and has been passed upon by this court in several instances. In the Commonwealth v. Clevel., Paines. & Ash. R. R. Co., 5 Casey 370, it was said that “in assessing the tax, no difference can be made between the dividends actually paid to the stockholders, and stock dividends, which are profits added to the stock of each corporator.” Nor is it necessary that the corporation should formally declare the dividend payable in stock. This was determined in the Lehigh Crane Iron Co. v. Commonwealth, 5 P. F. Smith 448. There a company with a capital of $100,000, from time to time increased its capital from its earnings until its stock reached to $900,000, and we held that the increase having resulted from earnings, was liable to the half mill tax. It was a dividend made though not so declared. We said then that the earnings of the original capital belonged to the owners of the stock, in proportion to their shares. So long as they remained in the profit and loss account, there was no division, express or implied, but when added to the capital and made a basis of dividends to the stockholders, they then reaped the actual benefit of the earnings of their stock.

On the question, what is the true capital of a company as the basis of dividends, a converse of the last ease is that of the Citizens’ Passenger Railway Co. v. The City of Philadelphia, 13 Wright 251. The authorized capital of that company, on which it declared its dividend, was $500,000, but its actual capital paid in was but $192,750, and the question was whether the tax should be estimated on the authorized or on the paid-up capital. The estimate on the nominal capital drew the dividend below six per cent., the charter limit, and hence the controversy. This court, by Thompson, J., held that the paid-up stock, not the nominal amount, was the true basis of taxation, and on that the dividend exceeded six per cent. The obvious reason is that the earning or profits of the stockholders on their actual investment, is the real ground on which the tax is laid. This purpose is manifested by the letter of the act as well as its spirit. The fourth section of the Act of May 1st 1868, is in these words: “The capital stock of all companies whatever, incorporated, &c., shall be subject to and pay into the treasury of the Commonwealth, annually, at the rate of one-half mill for each one per cent, of dividend made or declared by such company.” A dividend is not capital, but the product of capital, and this product it is which the law by its own terms makes both the criterion and the measure of the taxation of the capital. Thus, if a profit upon the actual capital or investment be either made or passed over to the stockholders without a declaration of dividend, or if a dividend be declared to them, the sum so made or so declared becomes the measure of the tax. If it be made and added to the investment of the shareholders in the form of new capital, though not declared as a dividend, still it must be taken and deemed to-be a dividend of the earnings of their original capital, and the new stock is called a stock dividend. This is tne point decided in the Lehigh Crane Iron Works’ case, supra. On the other hand, if a dividend be declared and set apart to the shareholders, the stock is taxable on the basis of this declaration, of which it makes return by law to the auditor-general. The company is estopped by its declaration and report, whether the dividend be earned or not. Atlantic and Ohio Telegraph Company v. Commonwealth, 16 P. F. Smith 57. The late chief justice said, in the last case, the only question was whether the court below erred in regarding the returns as the true evidence of what dividends' were declared as the basis of the auditor-general’s settlement. He remarked, “ She (the Commonwealth) is dealing with her own corporation, and acting solely on the evidence of its doings in regard to the subject of its liability to taxes, viz.: dividends made or declared. This is shown by its proper officer, the treasurer, in his return to the auditor-general; and the basis of that taxation is the dividends declared and paid.” And again, “ By whomsoever the stock is held, the measure of the tax is upon the dividends declared, and no such thing as partial dividends is ever to be presumed. When a dividend is declared (he continues) that gives the measure and furnishes the rule for the tax.” This ruling derives greater force from the language of the original Act' of 29th April 1844, the prototype of- the Act of 1859, from which the fourth section of the Act of May 1st 1868, was taken. The Act of 1844 was that the amount of the tax chargeable oh the capital stock,'on which a dividend or profit of six per cent, per annum or more shall be made and declared, shall be at the rate of one-half mill on each one per cent, of such dividend or profit. This “profit” was the legislative synonym of the dividend which should measure the tax. In the case of the Phoenix Iron Co. v. Commonwealth, 9 P. F. Smith 104, the legislation on the subject of the tax on the capital stock is traced, and the difference is shown between the state tax on dividends specifically and on the capital stock as measured by the dividends. .In .that case the difference between the Acts of 1844 and 1859, was pointed out, which is that instead of a valuation of the stock, as per Act of 1844, when the dividend fell below six per cent., the Act of 1859 required payment of the tax at the rate of half a mill for each one per cent, of dividend made or declared, and provided for the valuation of the stock according to the Act of 1844, only when the corporation failed to make or declare any dividend. But when dividends are made or declared, they still continue to be the criterion and the measure of the tax. In this aspect, therefore, the law is still the same as under the Act of 1844, which expressly denominates the dividend as profit.

These two eases, the Lehigh Crane Iron Works and the Atlantic and Ohio Telegraph Company, have, therefore, settled the interpretation of the fourth section of the Act of May 1st 1888, according to its letter and its spirit, and they now furnish the rule for taxation. This is, that when a corporation has actually made dividends from its profits or property without formally declaring them, by adding them to the stock of the shareholders, or where it has declared dividends and returned them, whether earned or not, the sum thus added to the stock of the shareholders, or the sum thus declared and set apart to him, becomes the measure of the tax, the legislative intent being to make the profit transferred by the corporation to its shareholders from its treasury or property the measure of the taxation of its capital. Hence, it is clear that a mere nominal or arithmetical increase of the shares, without a transfer to the shareholders of anything out of the treasury or property of the corporation, is not a dividend or profit either made or declared. It is a mere change in the form of the capital or investment — a transmutation of one form into another. A dividend ex vi termini is a product of the stock, it is the legislative synonym of profit, not the capital which made it. But capital, no matter what new form it may take, either by the increase or diminution of the number or nominal amount of its shares, so long as no new product is added to it from the treasury or property of the corporation, is still the same capital in substance and effect. Nor does the fact that its new form gives to the stock a greater commercial value, constitute it a dividend of any profit or property of the company. It resembles anon-negotiable note converted by consent of parties into a negotiable form. No new sum passes from the debtor to the creditor, the debt is the same, but the new form has given to the instrument a new commercial value in the hands of the creditor. The mere watering of stock, therefore, which has only subdivided existing shares and has transferred nothing from the treasury or property of the corporation to the pocket of the stockholder, is not a dividend either made or declared, within the letter or spirit of the act, and furnishes no basis for additional taxation upon the corporation. It must be remembered that the question before us concerns only the corporation. If the new form of the stock makes the shareholder amenable to additional taxation for more stock, as he was under the Act of 1844, and still is to a certain extent, that is his concern, and he must pay any new burthen the increase in his stock may impose upon him. But the legislature having made the corporation amenable to taxation only according to the dividends it declares, or the product of its capital actually invested in its shareholders in the form of new stock, the state can impose under the Act of 1st May 1868, no additional burthen founded only on a mutation in the form of its capital. This being the true interpretation of the fourth section of that act, which is almost a literal transcript of the Act of 1859, the solution of the present case is free from diificulty. The resolution of the stockholders under which the change in the form of the stock took place, recites : That under the lease of the railway, to the Pennsylvania Railroad Company, a perpetual dividend fund is provided equal to pay twelve per cent, on the existing stock of the company, and that it is expedient that a guarantied stock entitled to dividends, at the rate of seven per cent, should be created in substitution of the now existing stock. Authority is then conferred on the directors to carry out this purpose. In pursuance of this authority, it was ordered that “ there should be issued to the stockholders new certificates tó be called ‘guarantied dividend stock,’ in exchange for the old certificates, at the rate of 171 shares of new stock for each 100 shares of the old.” This was but a change in the form of the stock, the new certificate representing precisely the same stock covered by the old certificate, altered only by a numerical subdivision of shares, which made 100 by the former computation to stand as 171 by the latter. Nothing new in the shape of profit or property, so far as it appears from the evidence, passed from the company to the stockholders. The existing shares summed up a capital of $11,497,700, on which twelve per cent, would yield a dividend of $1,379,724. The new or guarantied stock, at the rate of increase, gives a capital of $19,665,000, on which seven per cent, gives a dividend of $1,376,550, a shade less than the old form yielded. A further calculation shows also that the increased number of shares in the newform counterbalances the decreased per centage in the dividend, and that the Commonwealth loses nothing in her tax.

Thus standing on the report of the company, which according to the case of the Atlantic and Ohio Telegraph Company, must be taken to be true, in the absence of other evidence, no dividend or profit was made to the stockholders, and consequently the increase in the number of the shares was not a stock dividend and not a basis of taxation.

But had the rejected evidence been admitted, a new aspect might have been given to the ease. A grave question would then have arisen, whether the increase of the stock was not an increment, arising from an actual appreciation of the entire property of the corporation, which is sought to transfer to its stockholders, under color of a mere transmutation in the form of stock. If this were the case, it cannot be doubted that the value thus transferred in the form of stock, would constitute a stock dividend, and be the measure of the tax. The rejection of the evidence becomes, therefore, an important assignment of error. It involves a nice discrimination, and yet we think the court was right in its ruling. The document offered was not issued by the company, but was framed and circulated by the trustee in the mortgage given to secure the bond creditors of the company. As a document its assertions wore not binding on the company without evidence of their previous authority or subsequent adoption. There was no evidence of either, excepting what shall be found in the letter of Mr. Earley, the auditor of the company, to the auditor-general, in response to an inquiry of the latter. There was no evidence of Mr. Earley’s authority to represent the company in this matter, or that the duties of an auditor of the companies extend to this business. Ilis authority, therefore, can only be an implication, and the extent of it cannot exceed the terms of the letter itself. Then, assuming an implication of authority to Mr. Earley, the document to which he refers, he adopted only to the extent of those parts to which he refers the auditor-general, as explanatory of the action of the railroad company. Beyond these parts of the document, there is no evidence of adoption by the company, actual or inferential. To infer that the statements of a trustee for a different purpose, with no evidence of his authority to make them, outside of the portions adopted by another person without evidence of his authority to adopt the entire document, are binding on the company, and would stretch the doctrine of presumptions beyond the boundaries of safety. Such a presumption would leave the company at the mercy, whim, caprice or prejudice of a jury. It was in the power of the Commonwealth or her officers, had they made the effort, to supply the evidence of authority, if it existed, or the evidence of the facts themselves recited in the circular. In regard to the facts, the causes of the Commonwealth must be tried according to the same rules of evidence which apply to other suitors, she must supply the evidence of them, and if by loss or a want of evidence she fails, the misfortune or the fault is her own. The absence of evidence cannot be supplied by presumptions at war with justice as well as with the ordinary rules of evidence. The error of the argument which, without evidence, demands a presumption of a dividend of profits from a mere increase of capital, will be treated of in an opinion to be read in the case of the Erie and Pittsburg Railroad Company v. Commonwealth. There being no evidence on the trial that there was a dividend either made or declared by the company, there was nothing to be submitted to the jury.

Judgment affirmed.