text:
    Wertz versus Blair County.
    1. The relations of a pauper mentioned in the 28th sect, of Act of June 13th 1836, are compellable under the Act of April 15th 1857, to maintain him with or without an order of relief having been obtained.
    2. The jurisdiction to compel the payment is in the Quarter Sessions.
    3. It is the duty of the officers of the poor to provide for insane poor to be repaid by the specified relations.
    4. A poor district having paid the expenses of maintaining a pauper in the state lunatic asylum, may recover the amount from the specified relations ; the proceeding to recover must be in the Quarter Sessions.
    5. The expenses of insane paupers committed to the State Lunatic Asylum are payable by the district to which the paupers are chargeable.
    May 17th 1870.
    Before Thompson, O. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Blair county: No. 39, to May Term 1870.
    This was an action of assumpsit by the county of Blair against Jacob Wertz, commenced March 8th 1865. The action was brought to recover the amount paid by the plaintiff to the State Lunatic Asylum for the support of John Wertz, son of the defendant and an insane pauper, who was of full age, and who, upon an indictment against him for breach of the peace, had been found by the jury to be insane and by order of the Court of Quarter Sessions had been sent to the State Lunatic Asylum.
    On the trial before Taylor, P. J., it was proved that the defendant was of sufficient ability to maintain his son. The son had not been formally declared a pauper, he was married, and there was evidence that he worked as a laborer. The court charged: “ There being in this case no question of fact in dispute, the court, reserving for further consideration on a motion for a new trial, the legal question whether the defendant, upon the facts disclosed and undisputed, is liable in this action to the plaintiff, directs the jury to find for the plaintiff.”
    The verdict was for the plaintiff for $897.08.
    The court afterwards refused a new trial and directed judgment to be entered on the verdict.
    The plaintiff took a writ of error and assigned for error the charge of the court.

      J. Banks and Scott, for plaintiff in error.
    The liability of a father to maintain a child ceases whén the child comes of age, unless the child has become chargeable as a pauper : 2 Kent’s Com. 198, 199; Mills v. Wyman, 3 Pick. R. 207; Boyd v. Sappington, 4 Watts 247. The remedy is not by a common-law action: Acts of April 14th 1845, sect. 10; Pamph. L. 441; Purd. 676, pl. 7; March 31st 1860, sect. 66-70; Pamph. L. 445; Purd. 262, pl. 66-70; Lower Augusta Township v. Northumberland Co., 1 Wright 146; Act of June 13th 1836, sect. 28; Pamph. L. 545; Purd. 799, pl. 33; Nippenose v. Jersey Shore, 12 Wright 402; Sugar Loaf v. Schuylkill Co., 8 Id. 481; Schuylkill Co. v. Montour, Id, 484; Acts of April 8th 1861; Pamph. L. 248; Purd. 677, pl. 17 et seq., April 15th 1857, Pamph. L. 191.

      J. F. Freuauff and S. S. Blair,

    for defendant in error, referred to the same acts: Lower Augusta v. Northumberland Co.; Nippenose v. Jersey Shore, supra; Erisman v. Directors of Lancaster Co., 11 Wright 509; 4 Stephens on Laws of England 283.
   The opinion of the court was delivered, July 7th 1870, by

Read, J.

The present system of poor laws in England, practically originated in the statute of 43 Elizabeth, c. 2, which, in its 7th section enacted: “ That the father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame and impotent person, or other poor person not able to work, being of sufficient ability, shall at their own charges, relieve and maintain every such poor person, in that manner, and according to that rate, as by the justices of the peace of that county, where such sufficient person, dwell, or the greater number of them, at their general quarter sessions, shall be assessed, upon pain that every one of them shall forfeit twenty shillings for every month which they shall fail therein.”

“ The parish,” says Serjeant Stephen, in his Commentaries, vol. 3, p. 174, “ however, will be immediately exonerated from the burthen, if the pauper has any relation competent and by law compellable to maintain him.” “They are liable to maintain him at such rate as shall be assessed, by the order of the justices at their general quarter or petty sessions, on refusal to obey such order, the sums so assessed are recoverable (with penalties), by a summary proceeding before two justices of the peace, and may be levied, by distress and sale of the goods and chattels of the offender, in default of which he may be committed to prison.”

The 7th section of the statute of Elizabeth was substantially re-enacted in this state, in the 29th section of the Act of 9th March 1771, 1 Smith 344, the penalty being raised to forty shillings. In the Act incorporating the Guardians of the Poor for the City and Districts, passed 29th March 1803, in its 29th section, which is framed from the above section, the word “ grandchildren” is introduced among those compellable to maintain their poor relations, and the penalty is increased to seven dollars for every month. The revisers, in speaking of what is now the 28th section of the Act of the 13th June 1836, say, it “is derived from the 29th section of the Act of 1771. We have added ‘ grandchildren’ to the enumeration of persons under legal obligation to relieve and maintain poor relations; conceiving that as grandparents were already bound to support grandchildren, the obligation ought to be reciprocal.”

By the 28th section of the Act of 1836, Pamph. L. 547, “ the fathers and grandfathers, and the mothers and grandmothers, and the children and grandchildren of every poor person not able to work, shall at their own charge, being of sufficient ability, relieve and maintain such poor person at such rate as the Courts of Quarter Sessions of the county where such poor person resides shall order and direct, on pain of forfeiting a sum not exceeding twenty dollars for every month they shall fail therein, which shall be levied, by the process of the said courts, and applied to the relief and maintenance of such poor person:” Seibert’s Appeal, 7 Harris 56.

By the Act of the 15th April 1857, Pamph. L. 191, the Courts of Quarter Sessions of the several counties of this Commonwealth have power to hear, determine and make orders and decrees, in all cases arising under the 28th section of the Act of 13th June 1836, either upon the petition of the overseórs of the poor, or of any other person or persons having an interest in the support of such poor person or persons, and either with or /without an order of relief having been first obtained.

There can, therefore, be no doubt that the relations of a pauper mentioned in the 28th section of the Poor Law, if competent and of sufficient ability, are compellable to maintain him, and that the jurisdiction in relation to it is vested in the Court of Quarter Sessions, whose power is limited to twenty dollars per month.

The insane poor, a class “ afflicted with the most pauperizing of all diseases,” always have been within all the provisions of the poor laws. It is the duty of the overseers to provide such insane persons with the necessary means of existence, to be repaid by the specified,relations if of sufficient ability. By the Act of 1st April 1848, Pamph. L. 828, the overseers of the poor i'n Blair county are abolished, and the whole county is made one poor district, and governed by three directors, who are a body corporate, by the name of The Directors of the Poor and of the House of Employment for the County of Blair. I

In the act incorporating the “ Pennsylvania State Lunatic Hospital,” it is provided that “indigent persons and paupers shall he charged for medical attendance, board-and nursing, while residents in the hospital, no more than the actual costs.”

From all its provisions, it is the evident intention of this law that the expenses of insane paupers shall be paid by the poor districts to which they are chargeable. The only difference being that the maintenance is paid to the hospital, instead-of being paid within the limits of the poor district.

This act has been the subject of several judicial decisions. In The Township of Franklin v. The Pennsylvania State Lunatic Hospital, 6 Casey 522, it was held, where the Court of Quarter Sessions directs an insane person to be committed to the Pennsylvania State Lunatic Hospital, as unsafe to be at large, the overseers of the proper township are liable for the maintenance of such lunatic; and if the lunatic has relatives who by law are bound for his support, the local authorities must look to them for reimbursement. This case is distinctly affirmed in Shenango Township v. Wayne Township, 10 Casey 184; and in Lower Augusta Township v. Northumberland County, 1 Wright 143, the doctrine in 6 Casey is distinctly repeated.

It is clear, therefore, the poor district so paying, has direct recourse to the relatives bound to maintain the. pauper. John Wertz, Jr., was an insane pauper, committed to the State Lunatic Hospital, by the Quarter Sessions of Blair county, as unsafe to be at large, at the expense of the county of Blair, who have paid for his maintenance at the hospital, and now seek to recover the amount from his father, who is of sufficient ability to maintain his insane pauper son.

There can be no doubt of his ultimate liability, hut the question before us is, whether this is the proper form of proceeding. We think not. The proceeding should be in the Court of Quarter Sessions, which by the Acts of 1836 and 1867, have ample powers to make the proper orders and decrees, and to enforce them.

As the father must be ultimately liable, it is certainly a case for settlement without further litigation.

Judgment reversed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Elliott versus The Lycoming County Mutual Insurance Co.
    1. A fire policy contained: “It is agreed, That the aggregate amount insured in this and other companies, on the above-mentioned property, shall not exceed two-thirds of the estimated cash value.” Held, that the estimated value was that at the time of insurance.
    2. The value of buildings was estimated when insured at $1950, and the amount insured $1300; additions were made; the agent of the company certified that he had examined and the addition did not increase the risk. $1000 more was then insured in another company; the buildings were burned. At the time of the fire the value of the buildings was $4200. Held, that the first policy was forfeited for over insurance.
    3. If a company after notice of over insurance make and collect assessments, they treat the contract as still subsisting and are estopped from setting up a forfeiture.
    4. An over insurance was made and afterwards an assessment was made; the treasurer discovering the error, notified the local agent not to collect it; the agent forgetting his instructions demanded it, but recollecting them, did not collect it. Held, not to be a waiver by the company.
    5. Under these facts, waiver was for the court.
    6. A judge is n.ot bound to submit a mere spark of evidence ; there must be enough to raise a reasonable question for decision.
    7. An insurance was on a house and stable in one policy ; an over insurance was made on the house; both were burned; the company tendered payment for the loss on the stable. Held, not to be an affirmance of the contract, so as to estop them from setting up a forfeiture as to the house.
    8. Payment of money into court when the declaration is on a special contract, admits the contract so as to supersede the necessity of proving it.
    9. Payment of money into court is the acknowledgment of the right of action to the amount brought in, but not beyond that.
    10. Such payment waives no defen'ce, although the defence be to the whole.
    11. After such payment the case goes on substantially as if the money had not been paid in; the defendant may take a defence which goes to the whole cause of action.
    May 17th. 1870.
    Before Thompson, C. J., Eead, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Blair county: No. 11, to May Term 1869.
    This was an action of covenant on a policy of insurance, to 'July Term 1866, by Elisha Elliott against the Lycoming Mutual Insurance Company.
    The case was tried May 6th 1866, before Taylor, P. J.
    The plaintiff gave in evidence policy No. 80,156, dated July 11th 1864, from the defendants to the plaintiff for insurance on his buildings in Altoona, as follows, viz.:—

      “A two~story frame dwelling-house in Altoona, Blair co. $1150
    Also, a stable, in rear of house .... 150
    (Known as the “ Dougherty House.”) . . $1300
    Estimated cash value, $1950.”
    One of the stipulations in the policy wras: “ It is also agreed, that the aggregate amount insured in this and other companies, on the above-mentioned property, shall not exceed two-thirds of the estimated cash value.”
    He gave evidence that he had made considerable repairs and additions to the house which were completed in 1865, and that the value of property generally had increased very much since the insurance had been effected: also, the certificate of A. McCormick, the agent of the defendants, dated June 22d 1865, viz.:—
    “ I do certify, that I have seen the alterations made by Elisha Elliott to the hotel known as the ‘ Dougherty House,’ and would say that the risk of the said house is not greater than it was before the alterations were made.”
    On the 2d of March 1866, the plaintiff made an additional insurance for $1000 on the hotel, in The North American Insurance Company.
    The buildings were destroyed by fire on the 14th of March 1866 and due notice was given to the company. There was evidence that at the time of the fire the hotel was worth $4200. The plaintiff gave evidence that an assessment was made on him for the property, on the 18th of January 1865 for $585: and another assessment made May 7th 1866 — after the fire — Lor $780; the duplicate of the assessment was forwarded May 8th by mail to W. H. Whitall, the agent of the company.
    The defendants gave evidence by Whitall, that he had been directed by the company by a letter (which was read), received on the 9th or 10th of May, not to collect the las& assessment, as the executive committee of the company were deliberating and might decide to resist the plaintiff’s claim.
    On cross-examination he said that inadvertently, notwithstanding his instructions, he had called on the plaintiff for the assessment: “ I made the remark that the assessment had been made by the company. Mr. Elliott put his hand into his pocket, remarking that he did not think he ought to pay that assessment. I discovered on opening my book a memorandum I made on the margin of the assessment duplicate that called to my mind at once the instructions I had received from the treasurer. I made some remark and left as quick as possible. I never told him the amount of the assessment, and made no formal demand, further than to re-f mark that an assessment had been made.” They gave evidence to show that this assessment was made by the treasurer in mistake, and their agent was informed immediately. Witness also testified that in June 1866 he tendered the plaintiff $39.50. They gave in evidence the plaintiff’s application for insurance, in which appears “ estimated value $1950.”
    Plaintiff in rebuttal gave evidence that the damage to the stable was from $40 to $70.
    The defendants on the trial tendered $39.50 and that sum was -paid into court.
    Judge Taylor charged the jury:— * * * [“ But it is expressly the estimated value set down in the policy by the parties at the time of the insurance, which determines this question. The stipulation relates expressly to 4 the estimated cash value’ in the policy. And the estimated cash value in the policy is $1950. It is agreed that the aggregate amount insured by this and other companies shall not exceed two-thirds of the estimated cash value, referring expressly to the value 'which the parties fixed by their estimate and set upon it, in their policy of insurance; and a careful examination of the cases upon this subject shows that any additional insurance which raised the amount beyond the sum so fixed by the parties, is an over-insurance. * * * In view of the stipulation, there can be no recovery in the policy unless the company waived it. It is of no consequence that the property afterwards became more valuable.] It may be that if Mr. Elliott had gone to this company for additional insurance, when he effected the second insurance in the other company, he might have obtained another policy, and that no difficulty of this kind would or could have arisen. But it is sufficient to say that it is the contract of the parties as they made- it with which we have to deal.
    “Was there a waiver of the over-insurance? * * * It is well settled, that this stipulation, introduced for the security of the company, may be waived by the company, either directly or expressly, or by act^*which imply it, or amount to an estoppel, and preclude them from asserting the over-insurance in answer to a claim upon the policy. ' Is there evidence here to be submitted from which you may infer or find a waiver ? * * *
    “We have no hesitation in saying that if a single assessment had been collected from Mr. Elliott, with a knowledge on the part of the company of the over-insurance at the time, it would be a waiver. But they did not exact anything from him [and it seems to us quite clear that when the only evidence relied upon here to show a waiver, is the fact that an assessment was made by mistake when the company were at the time contemplating resistance to this claim, and which was not collected, or paid by him, and when nothing was done tending in any way to mislead or injure him, it is not sufficient; and we are of opinion that this does not amount to a waiver, and that we should not, upon this evidence, submit it to you as a question of fact. The conclusion, therefore, is, and we so instruct you, that the plaintiff cannot recover on this policy for the amount insured upon the house.]
    “ There is a further claim for the partial loss of the stable, not covered by the second policy. There is no over-insurance as to that alleged. What was considered the correct item of this loss— $39.50 — is shown to have been tendered to the plaintiff, and has been brought into court. No objection is made to that item, and there is no controversy respecting it, except as to the amount of it. If the amount brought into court was tendered to the plaintiff’ before this action was brought, and covers the whole loss or damage to the stable, the plaintiff is not entitled to recover anything here; for he ought to have accepted it, and still may take it out of court: but if the sum tendered fall short of the just and correct amount, as you assess and find the damages from the evidence, then you should find for the plaintiff such sum as you deem just and right. * * * •
    “ The counsel of the plaintiff here makes the point, and asks us to instruct you that £ the tender of the money for the admitted loss to the stable, is a recognition' of the validity of the policy, and, therefore, the plaintiff is entitled to recover the whole of it;’ which instruction we refuse to give you.”
    The verdict was for the plaintiff for $60.83.
    The plaintiff took a writ of error and assigned for error the parts of the charge in.brackets.

      D. J. Neff and L. W. Nall, for plaintiff in error,
    cited Coursin v. The Penna. Ins. Co., 10 Wright 323; The Cumberland Mut. Prot. Co. v. Mitchell, 12 Wright 374; Lycoming County Mutual Insurance Company v. Schollenberger, 8 Id. 259; Same v. Stocklomn, 3 Grant’s Cases 207.

      S. M. Woodeodc and Scott, for defendants in error,
    cited Mitchell v. Lycoming Ins. Co., 1 P. F. Smith 402; Ins. Co. v. Stockbower, 2 Casey 199; Cooper v. Farmers’ Mutual Ins. Co., 14 Wright 299; Angeli Ins. 253 and note; Ogden v. Ash, 1 Dallas 164.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

It was decided in The Insurance Company v. Stockbower, 2 Casey 199, that when a policy of insurance provides ££ that the aggregate amount insured in this and other comT panies, on the above-mentioned property, shall not exceed two-thirds of the estimated cash value,” any further insurance being in violation of the agreement renders the policy void. To the same effect is Mitchell v. The Lycoming Mutual Insurance Company, 1 P. E. Smith 402. The question raised upon this record is, what is meant by the estimated cash value ? Is it the estimated cash value at the time of the insurance as settled'by the parties and named in the policy, or the actual cash value at the time a second or further insurance is effected ? There is no serious difficulty in resolving this question. The policy upon which this suit was brought after the stating the amounts insured on the properties described, adds “Estimated cash value 1950 dollars.” When' therefore the same instrument in a subsequent part speaks of the estimated cash value it must be held in all fairness to refer to the sum before named as much so as if it had been expressed. Nor can it alter the contract that the insured afterwards made improvements, which greatly augmented the actual cash value, and that the company had notice of these alterations and endorsed a certificate that the risk was not thereby increased. The contract still remained unchanged. The estimated cash value by which the insured agreed to be governed in procuring other insurances was still the same. Both parties must agree to another estimate; and if the estimate named in the policy was not the criterion, then there was none. There is no authority at law or in equity to reform the contract by substituting “actual” for “estimated.” The estimate was one in which the company had concurred, and by which they were therefore bound. They did not concur in any other estimate, which the insured might put upon it, or which a jury might subsequently agree upon. The plaintiff, before obtaining an additional insurance, ought to have procured the estimated cash value in the policy to be changed and made to conform to the actual augmented value in consequence of his improvements. It is unfortunate that he neglected to take this simple precaution, but having failed to do so, it is not in the power of chancellor or jury to help him.

It is stoutly maintained, however, that there was evidence of a waiver, which ought to have been submitted to the jury. Undoubtedly, if the company, after notice or knowledge of the over-insurance, treated the contract as subsisting by making and collecting assessments under it upon the assured, they could not afterwards set up its forfeiture. It would be an estoppel which is the true ground upon which the doctrine of waiver in such cases rests: Insurance Company v. Slockbower, 2 Casey 199. But what was the evidence ? The witness called by the plaintiff to prove the assessment, produced a letter addressed to the agent to whom the duplicate was addressed, instructing him not to collect it. The agent testified that he did make the demand, but on turning to the duplicate he noticed a memorandum made by himself that he was instructed not to collect that sum, and left immediately. The assessment was not paid. It would have been error under these circumstances to have submitted the question to the jury. It'is not every mere spark of evidence which a judge is bound so to submit. There' must be enough to raise a reasonable question for decision.

Nor can it be pretended that the tender and payment into court of a sum of money as the loss on the stable was an affirmance of the entire contract. The stable was not included in the second policy of insurance effected with the North American Insurance Company. It could not therefore be said to have been over-insured. It may be that the defendants could have treated the entire contract as void and resisted a recovery for any part. Payment of money into court, when the declaration is on a special contract, admits a contract indeed so as to supersede the necessity of proving it at the trial: 1 Tidd’s Practice 625. It is an acknowledgment of the right of action to the amount of the sum brought in; but beyond the amount of that sum it is no acknowledgment of the right whatever: Id. 624. It waives the benefit of no defence, even though such defence be to the whole. It seems therefore that after payment of money into court there may be a nonsuit, a judgment as in case of a nonsuit, a demurrer to evidence or a plea puis darrien continuance, in short that the cause goes on substantially in the same manner as if the money had not been paid in at all; in other words the defendant is not precluded, by it from taking a defence which goes to the whole cause of action. - Judgment affirmed.


author: Agnew, J.

text:
    Funk versus Smith.
    1. Land was sold by tbe sheriff there being no special terms of sale; the purchaser failed to comply; it was again sold for a less sum; the Statute of Limitations began to run from the failure to comply and not from the second sale.
    2. The legal inference of a promise to pay was from the bid, the failure to pay was the breach, from which the cause of action arose, and the difference between the sales was evidence as to the measure of damages.
    3. This was not the result of an alternative contract to pay damages in lieu of the bid, but an election of the sheriff to put up the property again and to sue for damages.

      4. The postponement to the second sale is the act of the sheriff or the party who directs him, for which the bidder-is not responsible.
    5. Campbell v. Boggs, 12 Wright 524, approved and applied.
    May 17th 1870.
    Before Thompson, C. J., Bead, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Blair county: No. 84, to May Term 1869.
    . This was an action of assumpsit by James Funk, late sheriff of Blair county, against George W. Smith to recover the difference between the amount bid by the defendant at a sheriff’s sale for property which he refused to accept, and the sum for which the same property was subsequently sold. The defendant pleaded the Statute of Limitations. The property was first sold to Seth R. McCune, the agent of the defendant, on the 24th of January 1860, for $800. It was afterwards sold on the 20th of July 1861 by the same sheriff on another execution for $580. This suit was brought June 6th 1866. These facts having been given in evidence, it was agreed that they should be considered as if found by a special verdict.
    The court entered judgment for the defendant; this was the only error assigned by the plaintiff who removed the case to the Supreme Court.

      T. Banks and S. S. Blair, for plaintiffs in error,
    cited Holdship v. Doran, 2 Penna. R. 15; Gaskell v. Morris, 7 W. & S. 32; Wright’s Appeal, 1 Casey 373; Evans v. Lee, 11 Harris 88; Overton v. Tracey, 14 S. & R. 328; Leinhart v. Forringer, 1 Penna. R. 493; Hill v. Meyers, 10 Wright 16; Rice v. Hosmer, 12 Mass. R. 127.

      R. A. McMurtrie, for defendant in error.

      Gaskell v. Morris, supra ; Addison on Contr. 1205, 1206; Downey v. Garard, 12 Harris 54; Miller v. Wilson, Id. 121; Derrickson v. Cady, 7 Barr 32; Steele v. Steele, 1 Casey 154.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

The defendant, by his agent, Seth R. McCune, became the purchaser of certain premises at a sheriff’s sale made on the 24th of January 1860, for $800; and failing to pay his bid, the premises were resold on the 20th of July 1861, to H. Crumbacker for $580. This suit was brought on the 6th day of June 1866, to recover the difference between the bids, and was decided against the plaintiff upon the plea of the Statute of Limitations. This is assigned as error. The force and effect of the plea of the statute will be seen by considering the contract on which the action is founded. The defendant merely bid the sum of $800 for the premises knocked off to him at the sheriff’s sale. There were no special terms of sale to vary the legal inference drawn from the bid, to wit, a promise to pay the sum of $800 as the price of the property sold. The failure to pay this sum is evidently the breach of the contract from which a cause of action arose to the sheriff to enable him to recover the price hid or damages for its non-payment. The contract itself had but a single stem, and that grew directly up from the bid. There was no secondary promise branching off from this stem, to pay the difference in price between this bid and another bid afterward to be made. That is but the law’s mode of measuring the damages when the sheriff, not choosing to recover the bid itself, puts up the property for sale a second time. It is not the result of an alternative contract to pay damages in lieu of the bid, but of the election of the sheriff to put up the property again, and to sue for the damages resulting from non-payment of the hid. But as the failure to pay the bid is the only breach such a single promise is susceptible of, the right of action then arose, and cannot be postponed by the sheriff to any future period he may choose to designate. The statute begins to run at the time of the breach, and cannot be stopped except by mutual consent. The postponement of the second sale after the breach of the contract by non-payment, is solely the act of the officer or of the party who directs him, for which the original bidder is in no way responsible. Could it be done without the consent of the bidder, it would be in effect to start a new period for the running of the breach, or to treat the contract as having a double obligation. But, as remarked in Miller v. Wilson, 12 Harris 120, using the language of Chief Justice Best, “ the thing has but one neck, and that is cut off by the defendant, and it would be mischievous to drive the plaintiff to a second, third or fourth action as the successive consequences of the wrong may arise. It is not true even as a general rule that courts will not anticipate a loss in future.” Much harder would it be for the defendant if the successive consequences would suspend the running of the statute. It would not be a statute of repose, but a wakeful watch to keep the defendant ever in suspense. In the present case, if the property were put up a third, fourth or fifth time at long intervals, and a failure to pay the bid each time, it would be difficult to settle the time of the running of the statute; yet it is clear as a fact, the first bidder’s breach of his contract is not shifted by all these subsequent .occurrences. There are analogies illustrating the principle that the statute runs from the time of actual breach of the promise, when it is single in its form; unless in cases of pure trusts, or where the breach has been concealed by the defendant. Thus in Campbell v. Boggs, 12 Wright 524, in the case of the collection of money by an attorney in fact, it was held that the statute runs from the time of the failure to pay over the money, and not from the time of notice to the principal of its receipt, unless there have been a fraudulent concealment by the attorney. Woodward, J., remarked: “ For on what is the action founded, but the breach of the implied contract ? And when is the contract broken ? Manifestly when the money is not paid over within a reasonable time after it is received. Then at that point the cause of action accrues, not years afterward, when the client, with a lack of diligence for which he alone is responsible, discovers that it is in the hands of his counsel. Actions on the case for consequential damages are not to be brought till the damages are developed, but actions for breach of contract do not wait on the consequences, but attach at the breach. The measure of damages in these actions may be less affected by consequences resulting from the breach, but they do not give the right of action. That arises the instant the contract is broken.” This language might well be written for the present case. See also Downey v. Garard, 12 Harris 52, in which a similar rule is adopted.

Judgment affirmed.


text:
    The Pennsylvania Canal Co. versus Bentley.
    1. In an action for negligence if the plaintiff makes out a primft facie case, the burden is on the defendant to disprove care and thus establish negligence in the plaintiff.
    2. If the plaintiff's own case disclose contributory negligence he cannot recover.
    3. It is negligence in a traveller crossing a railroad, not to stop and look up and down, because he is bound to presume that a train may be approaching.
    4. Where a duty is defined a failure to perform it is negligence and may be so declared by the court.
    5. Where the measure of duty is not unvarying and a higher degree is demanded in some circumstances than in others, a jury alone can determine what is negligence and whether it has been proved.
    6. McCully v. Clarke, 4 Wright 406, adopted.
    May 18th 1870.
    Before Thompson, O. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Juniata county: No, 48, to May Term 1870.
    On the 17th of November 1868, Ambrose H. Bentley brought an action on the case against the Pennsylvania Canal Company, for negligence in permitting the tow-path of their canal to be in so bad condition that a mule of plaintiff drawing a canal-boat was killed.
    The case was tried before Graham, P. J., December 7th 1869. The plaintiff’s evidence was, that in the summer of 1868, he was going westward on the canal with an empty boat; he had to his boat two teams of two mules each; the leading team was ten or twelve feet before the hind team in which was a blind mule; near the aqueduct over Delaware run there was a hole in the tow-path; the railing on the wall along it was off; the leading team passed safely around the hole, without afterwards stopping; the tow-line attached to the leading team rubbed against the hind mule’s leg; the leading mule in the hind team passed the hole; the hindmost mule broke into the hole, pitched forward against the leading mule, both fell- over the wall, and the leading mule was killed. The plaintiff gave evidence also of the dangerous character of the place, of the care he took to avoid the danger, &c.
    The defendants gave evidence for the purpose of showing negligence on the part of the plaintiff; amongst other evidence, that a blind mule was not suitable to use for towing a canal-boat; that the leading team should have stopped after passing the hole till the hind team had come up; that other teams had passed the hole in safety.
    The plaintiff submitted three points and the defendants ten.
    The 2d, 3d, 5th and 10th points of the defendants, with their answers, were as follows:—
    2. Before the jury can find a verdict for the plaintiff he must show that his employees used that degree of care and prudence necessary to have prevented the injury, and he must show affirmatively that no negligence on the part of his employees contributed to the injury.
    Answer: “ This is not the law. If the defendant alleges negligence on the part of plaintiff or his employees, he must prove it. The plaintiff to recover must show negligence on part of defendant; and if to avoid the consequences of such negligence, defendant alleges the plaintiff was negligent, he must prove it.”
    3. If the jury believe that plaintiff’s employees used a blind mule in the towing of his boat, the plaintiff must show his employees exercised more than ordinary care and caution in passing or attempting to pass the opening in the tow-path, otherwise he cannot recover.
    Answer: “ If the plaintiff used a blind mule in towing his boat, the law would require him to use proper and ordinary care under the circumstances, to wit, that one of his mules was blind; and if he failed to use such care as was prudent and necessary, considering that he had a blind mule in his team, then he cannot recover, if the blindness of the mule contributed to the accident and loss sustained.”
    5. If the jury believe from the evidence that plaintiff’s employees might have avoided the injury by stopping one of his teams passing off the aqueduct bridge, and he failed to do so, and thus contributed to the injury, he cannot recover.
    Answer: “If the jury believe from the evidence on this subject, that the plaintiff’s employees were guilty of negligence in not stopping one of his teams passing off the aqueduct bridge, and thus contributed to the injury, the plaintiff cannot recover. By ordinary care, you will understand such as a sensible man, a prudent and cautious man, would exercise in the transaction of his own business.”
    10. The verdict ought to be for the defendant.
    Answer: In answer to this point the court submitted to the jury the question whether the plaintiff was entitled to recover under the evidence or not.
    The verdict was for the plaintiff for $ 160.
    The defendants removed the case to the Supreme Court, and assigned for error the answers to their points.

      E. D. Parker, for plaintiffs in error.
    A plaintiff claiming damages for negligence must make out a ease resulting exclusively from the defendant’s negligence: Waters v. Wing, 9 P. F. Smith 212; Catawissa Railroad Company v. Armstrong, 13 Wright 186; Railroad v. Norton, 12 Harris 465; Heil v. Glanding, 6 Wright 493. The judge should have charged that blindness in the mule contributed to the loss unless ordinary care under the circumstances had been exercised: Pennsylvania Railroad v. Zebe, 9 Casey 318 ; Railroad Company v. Heileman, 13 Wright 60 ; Morrison v. Davis & Co., 8 Harris 177; Huyett v. Philadelphia & Reading Railroad, 11 Id. 374; Philadelphia & Reading Railroad v. Spearen, 11 Wright 305. The case should have not been submitted to the jury. There was no dispute as to the facts under which the accident occurred : Pennsylvania Railroad Company v. Barnett, 9 P. F. Smith 264; McCully v. Clark, 4 Wright 406; Pennsylvania Railroad Company v. Henderson, 7 Wright 449; Railroad Company v. Aspell, 11 Harris 147.

      E. S. Doty, for defendant in error,
    cited Beatty v. Gilmore, 4 Harris 463; Erie v. Schwingle, 10 Harris 384; Pittsburg v. Grier, 10 Id. 54; Waters v. Wing, supra.

   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

This controversy is about a mule. Some great principles are supposed to be involved which it is necessary that the court of the last resort should settle. We often hear this alleged in cases in which it must be evident that the expenses will exceed the amount in dispute, or at least one would think the play not to be worth the candle. This ardent attachment to principle seems to be a marked characteristic of the people and bar of this state, and would be highly laudable if it were not accompanied with some counterbalancing public evils; such as the great increase of the business of this court and the harassing of suitors. There were no less than thirteen points presented in writing to the court below, and the learned judge was required to navigate through all the shoals and narrows of negligence and evidence of negligence; of contributory negligence and the onus probandi. He did so, however, with remarkable prudence and skill; and the printed argument of the plaintiffs in error has failed to convince us that he was guilty of a single error.

The first error assigned is in the answer to the defendants’ second point, that it was incumbent on the plaintiff to show affirmatively that no negligence on the part of his employees contributed to the injury. This the court denied to be law. The plaintiff relies on Waters v. Wing, 9 P. F. Smith 213; hut that case is against him. The court there expressly say that if the plaintiff makes out a primfi facie case, the burden is on the defendants to disprove care and thus establish negligence on the part of the plaintiff. It is undoubtedly true that when the plaintiff’s own evidence discloses contributory negligence he cannot recover. But this is not peculiar to this class of cases, but extends to all. For if in an action on a book account the plaintiff’s own evidence shows that it had been paid, he must fail. But that does not establish that the onus of proving affirmatively that it has not been paid is on him.

The second error assigned is in the answer to the defendants’ third point, that the fact that the plaintiff had a blind mule in his team made it incumbent on him to use more than ordinary care. The judge very correctly answered to this that if he failed to use such care as was prudent and necessary,-considering that he had a blind mule in his team, then he cannot recover, if the blindness of the mule contributed to the accident and loss sustained. Surely if the blindness did not contribute to the accident, it was no element whatever in the ease. The question so far as this point was concerned could not have been more fairly and accurately submitted to the jury.

The third error is assigned to the answer to the defendant’s fifth point, which was that “if the jury believe from the evidence that plaintiff’s employees might have avoided the injury by stopping one of his teams passing off the aqueduct bridge, and he failed to do so and thus contributed to the injury, he cannot recover.” The answer was : “ If the jury believe from the evidence on this subject that the plaintiff’s employees were guilty of negligence in not stopping one of his teams passing off the aqueduct bridge, and thus contributed to the injury, the plaintiff cannot recover.” The contention is that this was negligence per se, not mere evidence of negligence. It is negligence for a traveller crossing a railroad track not to stop and look up and down, because he is bound to presume that a train may be approaching: The North Pennsylvania Railroad Company v. Heileman, 13 Wright 60. But surely no man is bound to presume that there is a hole in the middle of the highvpay, and if no warning of such a thing be given, to stop and go ahead and examine. Whether it was negligence in this case depended upon the circumstances; the knowledge of the existence of the hole by the plaintiff’s employees, and the amount of care actually exercised. It is very notorious that with all the precaution a man can exert a dumb and obstinate animal like a mule is often unmanageable. It is very easy to say after an accident has happened that if this or that thing had been done it might have been avoided. It must of necessity be a question of fact.

The fourth assignment of error is that the judge submitted the case to the jury. It is said that the facts were not disputed, and that upon the undisputed facts negligence was a question of law. There is no such principle except where a man violates a plain legal duty. “ There are, it is true,” said Mr. Justice Strong, “some cases in which a court can determine that omissions constitute negligence. They are those in which the precise measure of duty is determinate, the same under all circumstances. When the duty is defined a failure to perform it is of course negligence, and may be so declared by the court. But where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proved:” McCully v. Clarke, 4 Wright 406.

Judgment affirmed.


text:
    The West Branch Insurance Co. versus Macklin.
    1. By the charter of a mutual insurance company, it was provided that the premium-notes should be paid as the corporation should direct; that every member should pay for losses and expenses in proportion to the amount of his note; and in an action to recover assessments, the certificate of the secretary specifying the amount, &o., should be primft facie evidence of the amount due, &e. Held, that a statement of the condition of the company in 1863 was not evidence to rebut the correctness of an assessment in 1865.
    2. An assessment made by the directors after an assignment by the company for the benefit of creditors was valid.
    March 18th 1870.
    Before Thompson, O. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Mifflin county: No. 105, to May Term 1870.
    This was an action by The West Branch Insurance Company, to the use of their assignees for the benefit of creditors, against William Macklin. The suit was instituted before a justice of the peace for the recovery of assessments made on two notes given, for the premium on two different policies of insurance, issued by the plaintiffs to the defendant. The case was removed into the Court of Common Pleas by appeal. The paper-books did not show when the suit was brought or the appeal entered in court.
    On the trial, January 11th 1869, before Woods, P. J., the plaintiffs, gave in evidence their act of incorporation, approved April 12th 1855, Pamph. L. 1856, p. 648. It provided that • every person insuring should become a member of the company.
    The 6th section provided that premium-notes should be received for insurance, “ which shall be paid at such time and in such sums as the corporation shall from time to time require, &c.
    The 9th section: That “ every member shall be bound to pay for losses and such necessary expenses accruing in and to said company, in proportion to the amount of his deposit-note; and suits at law may be maintained by said corporation against any of its members for the collection of the deposit-notes or an assessment,” &c.
    The 10th section: “Whenever an assessment is made on any premium-note, * * and an action is brought for the recovery of such assessment, the certificate of the secretary, specifying the assessment and the amount due on such note by means thereof, shall be taken and received as primfi facie evidence thereof in all the courts of this Commonwealth.”
    The plaintiffs gave in evidence the premium-notes which were in the same form; one of them was:—
    “ $271, for value received in policy No. 5604, issued by the West Branch Insurance Company; We promise to pay the said company the sum of two hundred and seventy dollars, in such portions and at such times as the directors of said company may, agreeably to their act of incorporation, require. Dated the 24th day of February 1862. W. & Gr. Mackliií.”
    Also certificates of the secretary of two assessments; one, September 29th 1865, for $9.60 on one note, and $40.50 on the other. Assessment, December 14th 1865, on one note $7.68, and on the other $32.40.
    The defendants gave in evidence the assignment of the plaintiffs for the benefit of creditors, in the usual for'm, dated February 8th 1864 — it recited that the company, “ owing to sundry losses and misfortunes, is unable to discharge her just debts, and is willing to assign all her property for the benefit of her creditors.”
    They also gave in evidence, under objection and exception, a statement of the condition of the company on the 1st of April 1863, by which it appeared that at that date their assets were $53,923.51, and their liabilities $40,826.38.
    Judge Woods charged:— * * *
    “ The principal matter of defence, however, is that these assessments were unnecessary and illegal, the company not having sustained any losses. This is a question of more difficulty than the other. The premium-notes are given so as to form a fund to draw from when necessary for the payment of losses, and can only be used for this purpose and to pay current expenses of the corporation. To attempt to use or collect them for any other would be illegal and wrong. When an assessment is laid it is primá, facie supposed to be right, but the laying of it is not conclusive. [The defendants in this case allege that the company had sufficient assets to pay all its legal and just liabilities without calling for the amounts now in suit, and that these additional ones are laid for the personal profit of the parties managing this corporation. If this be true, it would be an available defence to this action.] As we said before, if there are no losses or debts of the company more than they need funds on hand to meet, they would not be justifiable on assessment. The defendants in order to sustain their allegation have given in evidence a statement of the affairs of the company, made in April 1863 by its officers. This would be evidence to show the situation of the company at that time. This is their own statement, and they have not attempted to show a mistake in it, or that it was not correct. If this paper is correct, you will see how the affairs of this company stood. The plaintiffs say there may have been losses after that. This is true, and if any losses were sustained after that, the plaintiffs are entitled to recover in this suit. The plaintiffs knew who were insured, and if any losses were sustained they could have shown them by their books or otherwise if they had seen fit to do so. We then say to you that if you are satisfied from the evidence that the plaintiffs had sufficient funds on hand to pay all their liabilities and losses without these assessments, then they had no right to lay them, and they cannot recover." But if you are not so satisfied from the testimony in the case, the plaintiffs have a right to your verdict for the amount claimed by them in this action.”
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and assigned for error the admission of the evidence objected to and the part of the charge in brackets.

      A. Reed, for plaintiffs in error. — The
    assignment was the declaration of every member of the company that there had been losses; it being the act of all, and therefore evidence against defendants: Diehl v. Adams Co. M. Ins. Co., 8 P. F. Smith 443. The statement of 1863 was not evidence of the condition of the company when the assessments were made. The company was bound to assess enough to pay losses : Rhinehart v. Allegheny M. Ins. Co., 1 Barr 359; Coston v. Same, Id. 322.

      Uttley, Woods and Elder, for defendants in error.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

This was an action commenced originally before a justice of the peace to recover the amount of two assessments made on the defendants, who were members of the company plaintiffs, on their premium-notes. These notes promised to pay the sums mentioned “ in such portions and at such times as the directors of said company may agreeably to their act of incorporation require.” By the act of incorporation passed April 12th 1855, Pamph. L. of 1856, p. 648, it is provided that the premium-notes “ shall be paid at such time or times, and in such sum or sums, as the corporation shall from time to time require.” By the ninth section it is declared “ that every member of said company shall be bound to pay for losses and such necessary expenses as aforesaid accruing in and to said company, in proportion to the amount of his deposit-note; and suits at law may be maintained by said corporation against any of its members for the collection of said deposit-notes or any assessment thereon,” and by the tenth section “ whenever an assessment is made on any premium-note give?! to this company in consideration for any policy of insurance issued byj said company, and an action is brought for the recovery of such assessments, the certificate of the secretary, specifying the assessment and the amount due on such note by means thereof, shall be taken and received as prima, facie evidence thereof in all courts of this Commonwealth.”’

By the certificates of the secretary of the company, which were given in evidence by the plaintiffs, it appeared that the assessments now sued for were made respectively on September 29th 1865 and December 14th 1865.

The defendants offered in evidence a statement of the assets and liabilities of the company, dated April 1st 1863, made out and sent to their members as it would seem on the occasion of some former assessment. This statement was not offered to be followed, nor was it followed, by any other evidence going to show the condition of the company at the time the assessments in suit were made. It had no tendency by itself to rebut the prima facies of the assessments. Not only was there no such evidence, but the assignment before produced by the defendants, dated February 8th 1864, recites that “ The West Branch Insurance Company, owing to sundry losses and misfortunes, is unable to discharge her just debts.” We think, therefore, that the learned judge below fell into an error in admitting the statement of April 1st 1863, and in charging the jury as complained of in the second assignment — “ The defendant in this case alleges that the company had sufficient assets to pay all its legal and just liabilities without calling for the amounts now in suit, and that these additional ones are laid for the personal profit of the parties managing this., corporation. If this be true, it would be an available defence to this action.” We think there was no evidence in the cause to rebute the prima facies of the secretary’s certificate, and the jury should have been instructed to find a verdict for the plaintiff, for the amount of the assessments sued for.

Judgment reversed, and venire facias de novo awarded.


author: Thompson, C. J.

text:
    Bechdle versus Lingle et al.

    1. Unseated land returned as seated cannot be charged to the unseated list without notice to the owner when practicable.
    2. Unseated land had been on the seated list for many years, but had been on no list for three years, including 1861. On the triennial assessment of 1862 it was returned as unseated, and sold in 1864 for taxes of 1862 and 1863. This, under the circumstances, was an original assessment and not a case for notice to the owner.
    3. The assessment of unseated land on the seated list does not change its character so as to render it incapable of sale for taxes.
    4. An owner claiming a right to be notified that his land is on the unseated list, must have reason to expect that it was on the seated list.
    5. An owner who has paid no taxes at all on his land for three years is not entitled to notice of its change to the unseated list.
    May 16th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the'Court of Common Pleas of Centre county: No. 6, to May Term 1870.
    This was an action of ejectment brought to January Term 1867 by Christian Bechdle against Simon Lingle, Benjamin Ligget and others for 132 acres of land in Liberty township.
    The case was tried, February 3d 1868, before Barrett, P. J., of the Twenty-second District.
    The plaintiff gave in evidence: warrant July 31st 1793 and survey November 31st to John Potter for 396 acres; treasurer’s deed November 20th 1822 to Christian Bechdle and John Ligget, Jr., for the “ John Potter” tract. There was evidence that Bechdle and Ligget had made an amicable partition of the tract in 1824, Bechdle .taking the eastern part, and Ligget the western. Bechdle’s part was in the vicinity of his mansion and farm, and it appeared had been used continuously for a great number of years for fire-wood, rails, &c., for the mansion and farm. Bechdle by his will, proved March 18th 1851, devised two-thirds of this tract, calling it his “ timber land on Muncy mountain,” to his son, the plaintiff, and the other third to Samuel Bechdle, another son. From 1824 until about 1850 or 1851 the tract was assessed on the seated list to the elder Bechdle as containing different numbers of acres from 96 to 196. For several years commencing with 1853, the land in controversy was assessed on the seated list as 50 acres. From 1859 to 1862 it was not on the seated list, and during those years no tax at all had been paid for it. In 1862 the plaintiff was one of the assistant assessors of Liberty township. For the years 1862 and 1863 it was assessed as 50 acres on the unseated list in the name of the plaintiff, and sold for taxes to Simon Lingle, the defendant, on the 13th of June 1864, and the treasurer’s deed acknowledged August 24th.
    The questions of fact which arose on the trial .related principally to tbe partition, the assessment and tax sale. There were no points submitted by either of the parties:—
    The court charged: * * *
    “ From 1859 to 1862, inclusive, that portion of the tract was . not assessed in the seated list, where it had been for over thirty years. It has not been shown that any tax was paid upon it as seated for those years. For the years 1859, 1860 and 1861 it seems to have escaped taxation altogether. For' the years 1862 and 1863 it was assessed and returned for taxation as unseated land, and for the taxes of those years it was sold to Simon Lingle. The sale was regular. If the assessment was regularly made and is sufficient to charge the land with taxes for those years, the treasurer’s deed conveyed a good title. Objections have been made to the assessment, but it is shown to have been returned in a list of other lands by the proper assessor, in the usual manner, and with a valuation attached to it. The principal objection is, that it was changed from the seated to the unseated list without notice to the owner. But that is not the case. It had not been in the seated list for three years. It was a tract not assessed at all and was in fact unseated. It was not necessary to hunt up the owner and give him notice that it was about to be assessed in the unseated list of lands for that township. It is not even important that the present plaintiff, who was then the owner of the land, was one of the assessors who made the assessment and return, no'r that from such circumstance notice might be presumed, because notice was not required. It was, as is admitted on all sides, an unseated tract of land; was returned as such by the assessor at a time when it was nowhere assessed; it stood on the books of the commissioners so assessed for two years; at the proper time the taxes for 1862-3 were charged against it; it was advertised and sold; the two years for redemption passed and now the treasurer’s vendee is here claiming the land.”
    “ The sale- was for 50 acres of the ‘John Potter’survey; we are not shown how much land the eastern half contained. Mr. Mitchell, the surveyor, says that it was interfered with by older surveys, which reduced the number of acres as originally claimed for it, how much he could not say. There is evidence also that the eastern half was divided so as to give the present plaintiff two-thirds and his brother one-third.”
    “ The whole case is thus narrowed down to the question of fact which must go to the jury.
    “ If the jury believe from all the evidence, that a division of Che tract was made between John Ligget and Christian Beehdle, and that Beehdle thereby became the owner of the eastern half of the tract, they are instructed that Benjamin Ligget has no title to any part of it, and that he, as one of the defendants, cannot resist the plaintiff’s recovery. If otherwise, he would have the interest of one of the heirs of John Ligget in the undivided half part of the tract.
    [“ If Lingle, another defendant, can hold any part of the tract, it must be under the treasurer’s deed. Does the evidence show that the 50 acres sold covered the plaintiff’s part of the Potter survey? The only evidence is that it was sold as the land of, Christian Bechdle. No warrantee name is given and no other description. If there was a regular assessment of the taxes, and if the jury are satisfied that the treasurer’s deed to Lingle covers Bechdle’s part of the survey, although the number of acres may not be exactly correct, he is entitled to the land covered by his deed, and for that the plaintiff cannot recover. If it covers the whole you should find for the defendants. If the assessment was irregular, or if the sale did not cover the land in dispute, you should find for the plaintiff.”]

      J. A. Beaver and H. N. McAllister, for plaintiffs in error.—
    The tract could not be removed from the seated to the unseated list without notice: Larimer v. McCall, 4 W. & S. 136 ; Commercial Bank v. Woodside, 2 Harris 409; Milliken v. Benedict, 8 Barr 169; Stewart v. Trevor, 6 P. F. Smith 383.

      Orvis & Alexander, for defendants in error.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

J. — Regarding the principle as conclusively settled by Larimer v. McCall, 4 W. & S. 133, Milliken v. Benedict, 8 Barr 169, The Bank v. Woodside, 2 Harris 404, Stewart .v. Trevor, 6 P. E. Smith 374, and other cases, that unseated lands assessed and returned as seated, cannot be changed from the seated to the unseated list without notice to the owner when practicable, and sold for taxes; does the doctrine apply to the case in hand ? The court below thought not, and we see no solid grounds upon which to differ with it.

The land in question was, in point of fact, undeniably unseated, although it had been for many years generally returned as seated, and the taxes collected in that character. In 1859,1860 and 1861, it appears to have been dropped from both lists, and was not assessed at all, either as seated or unseated. In 1862, the year of the triennial assessment, it was assessed and returned by the assessor as unseated, and charged with the taxes of that year and the next, 1862 and 1863, on the unseated list. It is apparent, that it did not come upon the unseated list by the return of the collector or other action of the county commissioners. It was the act of the proper assessing officers. It was an original assessment of land which was on no list. It was not a case for notice to the owner. He could not claim he was deceived in finding it on the unseated list for the years in question, for it was on no other. The considerations which gave rise to the decisions referred to, namely, that the owner had a right to expect his land to be where he annually found it when paying taxes, viz., on the seated list, did not exist in this case. The equitable doctrine of the cases cited was introduced to prevent surprise and undue advantage of owners. It is only this which gives it life. It is not to be supposed that the assessment of unseated lands on the seated list works a change of their actual character, to the extent of rendering them incapable of sale for taxes, as is the case with lands actually seated, excepting under the Act of 1844. This was never meant by these decisions. The party invoking the benefit of the rule of the cases must be within it. He must show that he had reason to expect his land was on the seated list. But how could he avail himself of this plea when he had not paid any tax on it upon this list, or any other, for three years ? It was either gross negligence on part of the owner, to let his land go to sale for taxes, or a disposition to risk the consequences rather than pay; neither of which dispositions appeal very strongly to the sympathies of anybody. In fact, the plaintiff was one of the assistant assessors for the year 1862, which gives countenance to the idea just advanced. So far as any question was made of the identity of the land sold with that assessed, it was left to the jury on the evidence in the case, and found against the plaintiff. Nor do we see any error in the remarks of the judge accounting for the discrepancy between the amount of land assessed and sold, and that devised to plaintiff by his father. There was testimony on the subject which justified the remarks.

There is nothing else in the case which needs notice, and there being no error in the case,

The judgment is affirmed.