author: Mercür, J.

text:
    Allentown versus Henry.
    1. A water company was incorporated in Allentown, and authorized “to lay reasonable assessments in the.nature of water-rents on every dwelling in any street, &c., in said city in which and as far as the water-pipes are now laid, or may be laid, and to collect,” &c. Under an act for the purpose the city bought the works of the company with their franchises, privileges, &e. Held, that although these powers might bp unconstitutional when applied to the company, they were not so when transferred to the city, a municipal corporation.
    2. Authorizing the assessment to be made in streets, &c., where pipes were laid, was not imposing a local assessment for a general benefit, but was a local tax for a local benefit.
    3. An ordinance by the city laying a tax “upon dwelling-houses not supplied with hydrants,'’ was not in accordance with the Act of Assembly, and could not be enforced.
    March 21st 1878.
    Before Read, C. J., Agnew and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 249, of January Term 1873.
    On the 13th of May 1872, the city of Allentown brought an action before a justice of the peace against William Henry for water-rent, for two houses of defendant in the city. The justice gave judgment for the city for $11; the defendant appealed to the Court of Common Pleas.
    By a supplement to the charter of the Allentown Water Company, approved April 14th 1868, it was provided that “they shall have the liberty, privilege and power to lay reasonable assessments in the nature of water-rents, upon every dwelling-house situated in any of the streets, lanes and alleys of the said city, in, through and along which, and as far as the water-pipes of said company are now laid and shall hereafter be laid, and to collect the said assessments or rents in the same manner as water-rents are now collected.”
    By Act of March 22d 1870, the city of Allentown was authorized to supply the city with water, and it might erect water-works or purchase works already erected, and there were conferred upon it all the rights, privileges, powers and franchises of the Allentown Water Company. The city purchased the works of that company and passed the following ordinances:—
    September 24th 1869: “ That all rents or other emoluments which may arise from the use and application of said water, shall be applied for defraying the expenses of superintendence and of repairs and improvements of necessary works for the better accommodation and supply of the city with water, and to the payment of the interest and redemption of the city loan; and thereafter for any further improvement or in aid or alleviation of taxes on its inhabitants as may be directed by councils.”
    May 12th 1871: “ That from and after the passage of this ordinance, a tax of five dollars be levied upon such dwelling-houses not supplied with hydrants, which, are situated upon any of the streets or alleys of this city, in, through and along which the water-pipes are now laid, and those hereafter to be laid, and that said assessment or tax shall be collected in the same manner as water-rents are now collected.”
    On the trial, January 10th 1873, before Longaker, P. J., the plaintiff gave evidence that the defendant was assessed for two houses, in neither of which was there a hydrant, but which were on streets through which the water-pipes were laid.
    The defendant testified that he used a cistern in-each of his houses and used no hydrant water.
    The verdict was for the defendant, under the direction of the court.
    Judge Longaker, in his opinion, on motion for a new trial, held that although the Act of 1868 might be unconstitutional in conferring on the Allentown Water Company the powers mentioned in it, it was not therefore unconstitutional when by the sale of their works those powers were transferred to a municipal corporation.
    He further held that the act was unconstitutional, as imposing a local tax for general purposes.
    The plaintiff removed the record to the Supreme Court by writ of error, and assigned for error that the court directed the jury to find for the defendant.

      II. 0. Hunslerger, for plaintiff in error.

      JE. Holben and JE. J. More, for defendant in error.
   The opinion of the court was delivered, May 17th 1873, by

Mercür, J.

We think the learned judge correctly held that although the Act of 14th April 1868 might be unconstitutional, so far as it sought to authorize a private corporation to levy and collect a tax upon a citizen, yet it does not follow that that power may not be conferred upon a municipal corporation. The manifest intent and meaning of the Act of 22d March 1870, are to give to the plaintiff all the rights, privileges, powers and franchises which previous acts had declared to be given to the Allentown Water Company, as fully as the language used therein professed to give the same, so that the plaintiff now holds and possesses them as fully as if they had been re-enacted in the same words.

We, however, are unable to concur in his conclusion that the said acts are unconstitutional. We do not understand this Act of 14th April to impose an assessment for a general public benefit. Upon the contrary, it is a local tax, substantially for a local benefit. The tax is local, as it is imposed upon those dwelling-houses only, situate upon the lines of the water-pipes. The benefits are local, as the use of the water must necessarily be mostly restricted to the benefit of the .property on those lines, both for domestic purposes and the extinguishment of fires. The effect of supplying those streets with water is to enhance the value of the dwelling-houses thereon. The maintenance of the pipes, and the supplying of water, are necessarily a continuing expense, and this tax is evidently designed to defray those expenses. It is well settled, that the legislature has the constitutional right to confer upon municipal corporations the power of assessing the cost of local improvements upon the properties benefited: Hammett v. Philadelphia, 15 P. F. Smith 146; Kirby v. Shaw, 7 Harris 258.

We concur that the verdict was correctly taken. The ordinance did not follow the Act of Assembly. The act authorized the assessment to be levied upon “ every dwelling-house situated in any of the streets, lanes and alleys of the said city, in, through and along which, and as far as, the water-pipes are now laid, and shall hereafter be laid.” The ordinance imposes the tax upon such dwelling-houses only as are “not supplied with hydrants.”

This is an unwarranted departure from the letter and spirit of the law.

Judgment affirmed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Allentown versus Kramer.
    1. A municipal corporation has a right to raise its streets and bridge them in order to improve their usefulness.
    2. When a municipality exercises its lawful authority derived from the state, it is not liable for collateral injuries from the exercise of its power.
    3. For negligence in the construction or repair of public works (when repair is a duty), the corporation is responsible for special damage caused by its negligence.
    March 21st 1878.
    Before Read, C. J., Agnew, and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. .285, to January Term 1873.
    This was an action on the case by J. A. Kramer against the city of Allentown, for damages to his property from the overflow of the water from the streets of the city, occasioned by the construction of a bridge or culvert across Sixth street. It was tried December 16th 1872, before Longaker, P. J.
    The plaintiff gave evidence that he owned a lot at the corner of Sixth and Linden streets, since April 3d 1866 when he bought it; his house was on Sixth street; the lot was low and he filled it up four or five feet; he got orders from the mayor to put up a new curb, and put it up according to instructions in tbe fall of 1866; at the same time he laid a pavement, which was approved by the city engineer; about December 1870, Sixth street was macadamized, and the authorities of the city put bridges across the gutters; the bridges were made of iron and plank; the bridge was not high enough to allow the water to pass through, the water soaked through the loose ground into plaintiff’s cellar; this occurred frequently during the summers of 1870,1871 and 1872 ; it tore open his sidewalk by reason of being forced back from the bridge; the water had never run into plaintiff’s yard before the building of the bridge. The grade of the street had been altered by councils, and his curb lowered three inches at his request.
    There was evidence by the defendant that the gutter complained of had the same capacity for passing the water as it had previously to constructing the bridge; they gave evidence also, for the purpose of showing that the defendant had contributed to the injury in the construction of his pavement, &c.
    By the charter of the city of Allentown, the corporate authorities have power “ To regulate roads, streets, lanes, alleys, courts, common sewers, public squares, common grounds, footwalks, pavements, gutters, culverts and drains, and the heights, grades, width, slopes and form's thereof, and they shall have all needful jurisdiction over the same.”
    The plaintiff’s points which were affirmed were:—
    1. If the jury believe that the bridge erected by the defendant on Sixth street is an obstruction to the flow of the waters which in ordinarily severe showers are conducted by the city through the gutter on the north side of Linden street and on Sixth street, and that by reason of such obstruction the waters are backed up Sixth street and turned over and upon the premises of the plaintiff, without any default or negligence on his part, the defendant is liable for the injury directly resulting to the plaintiff’s property from such overflow. * * *
    3. The city of Allentown has power by its charter “ to cause common sewers, drains, &c., to be made in any part of the city.” Although passing an ordinance for the construction of such a work is a judicial act for which the city is not liable, yet the doing of the work, in carrying it out, is ministerial, and it is their duty to see that it is carefully and skilfully done. If by the want of care or skill of its agents, this bridge or culvert was constructed of insufficient capacity or so as to obstruct the passage of the water, the city is liable to the plaintiff for the damages thereby occasioned.
    The court charged: “ You are instructed as a matter of law, that the city has the right to construct culverts where one street crosses another ; but while they have that right they must so use it as not to obstruct the flow of water which will usually flow there in ordinarily severe showers. Great and extraordinary flows of water need not be provided for. Your inquiry then will be, has the culvert complained of been so constructed as to be an'obstruction to the flow of water in ordinarily severe showers, and by means thereof, has the water been caused to flow in and upon the premises of the plaintiff? If you find this fact, and find the further fact that the plaintiff has in no way by his own negligence contributed to the damages complained of, he will be entitled to recover in this action. If you cannot so find, your verdict will be in favor of the defendant.”
    The verdict was for the plaintiff for $280. The defendant took out a writ of error and assigned for error the answers to the points and the charge of the court.

      JBJ. 0. JHunsberger, for plaintiff in error,
    cited Green v. Reading, 9 Watts 385; Clarke v. Birmingham & Pittsburg Bridge Co., 5 Wright 158; Monongahela Nav. Co. v. Coon, 6 Barr 382; Same v. Same, 6 W. & S. 101; Grant v. Erie, 19 P. F. Smith 420; as to liability of a municipal corporation for consequential injuries from public improvements.

      JR. JE. Wright, Jr. (with whom were W. JBJ. Sow den, Gr. B. Schall and JR. JE. Wright).

    A municipal corporation is liable for negligence in constructing improvements. Henry v. Pittsburg & Allegh. Bridge Co., 8 W. & S. 85; Carr v. N. Liberties, 11 Casey 324; Rochester White Lead Company v. City of Rochester, 3 N. Y. (3 Comst.) 463; Lloyd v. Mayor, &c., of N. Y., 5 N. Y. (1 Seld.) 369; Delmonico v. Mayor, &c., of N. Y., 1 Sandf. 282; Philadelphia v. Fox, 14 P. F. Smith 169.
   The opnion of the court was delivered, May 17th 1873, by

Agnew, J.

The question presented by this record is more limited than the range of the argument. It is true the evidence raised a question upon the power of the city of Allentown to grade, regulate and improve the streets; a power fully conferred by the charter of the city ; but the court seems to have committed the case to the jury on the single question of a negligent and unskilful construction of the bridge over the gutter of Linden street. It appears that the plaintiff’s lot lies low, and that at his own request the curbing along it was' lowered three inches. Had the case been determined on these facts alone,- there would have been error in the verdict; for the right of a city to raise its streets and to bridge them, in order to improve their public usefulness, is undoubted. A large number of cases support this position. Among them are the following: Green v. Borough of Reading, 9 Watts 382; The Mayor v. Randolph, 4 W. & S. 514; Henry v. Bridge Co., 8 W. & S. 85; Commissioners v. Wood, 10 Barr 93; Phila. & Tren. R. R. Co., 6 Wharton 25 ; O’Connor v. Pittsburg, 6 Harris 107; Carr v. Northern Liberties, 11 Casey 324. The principle at the bottom of these cases is, that when a municipality is in the lawful and proper exercise of the power of the state, such as in the improvement and regulation of a highway, under an authority conferred by law, it is not liable for the injuries which flow collaterally from the execution of the power. Hence in this case, the plaintiff, whose lot lay below the grade of the street as improved under the ordinance of the councils, could not recover for the consequential injury arising from an increased flow of surface water caused thereby. But the cases referred to, or some of them, state the distinction, upon which this case was submitted to the jury, and which has been sustained in many other cases, to wit: that for' negligence, either in the construction or repair of public works (when repair is a duty) the corporation itself must respond in damages for a special injury caused by its negligence: Supra, 9 Watts 385, 386; 8 Id. 86, 87; 10 Barr 95, 96; 11 Casey 329. And see Erie City v. Schwingle, 10 Harris 384; Humphreys v. Armstrong Co., 6 P. F. Smith 204; Pittsburg, Ft. Wayne & Chi. R. R. Co. v. Gilleland, Id. 445; Penn. & Ohio Canal Co. v. Graham, 13 P. F. Smith 290; Norristown v. Moyer, 17 Id. 355; Rapho v. Moore, 18 Id. 404. The single point submitted to the jury was, whether the culvert (or bridge) over the gutter in Linden street had been so constructed as to be an obstruction to the flow of water in ordinarily severe showers, and thus caused it to flow in and upon the plaintiff’s premises; with the instruction, that if they so found the fact, and that the plaintiff had in no way by his own negligence, contributed to his injury, he was entitled to recover. In view of the points of the plaintiff, and in the absence of any request for instruction on part of the defendant below, it is evident this instruction of the court had reference to the negligence and want of proper care on the part of the city in the construction of the bridge, whereby it became an obstruction to the ordinary flow of the water. The right of the city to raise the street and to construct the bridge as a necessary part of the improvement, does not appear to have been drawn into question. The faulty and negligent construction of the bridge, making it an obstruction to the flow of the water in ordinary rains, was a proper ground of recovery. If any other question was intended to be raised, it was the duty of the defendant to' have asked for an instruction which would bring it before us. Finding no error in the record, the judgment is affirmed.


text:
    Kaul et al. versus Lawrence et al.

    1. Plaintiffs having given evidence of a treasurer’s sale and of diligent and fruitless search for his deed, the record from the prothonotary’s docket of the acknowledgment of the deed, was admissible to prove its contents.
    2. Ejectment was brought by two for a whole tract of land; it appearing ^hat one-twentieth was owned by another, an amendment adding his name proper.
    3. Amendments should not be allowed so as to deprive the opposite party of any right.
    4. A party will not be allowed by amendment to shift or enlarge his ground by introducing an entirely new cause of action, especially when by reason of the Statute of Limitations, an injury would result to the opposite party.
    5. In ejectment a name was added as plaintiff after suit brought; upon request, the court should charge, that if at the time of the amendment the title of the new party was barred by the Statute of Limitations he could not recover.
    6. Payne, a surveyor, located a warrant on a wrong tract; the land as under the warrant was sold according to his location, improvements made, &c. He became owner of the tract on which he located the warrant; he sold. Held, that his successors in title were not estopped- by his mistake from claiming the land.
    7. Every owner is presumed to know the identity of his own land.
    March 24th 1873.
    Before Read, 0. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the court of Common Pleas of JERh county: No. 23, to January Term 1872.
    This was an ejectment for 500 acres of land, the east half of warrant No. 4883, in Benzinger township, Elk county, formerly Shippen township, McKean county; the action was commenced July 16th 1867, by John J. Lawrence and A. J. Cassatt, against John Kaul, Ignatius Garner and a large number of other defendants, several of whom afterwards disclaimed as to parts of the land.
    On the 16th of January 1868, on motion of plaintiff’s counsel, the record was amended “ by adding the name of Alfred L. Tyler as plaintiff, he being a party in interest to the land in controversy and his name having been omitted.”
    No. 4883 had been warranted in the name of William Willink; the plaintiffs derived their title through Hiram Payne, who claimed through treasurer’s sales. The defendants claimed title through Benzinger and Eschbach, who had been the owners of No. 4886j an adjoining warrant in the name of Willink. The allegation of defendants was that Payne, who was a surveyor, induced Benzinger and Eschbach to purchase No. 4886 and to allow him to run the lines and locate their warrant; that in doing so he located it on the eastern side of No. 4883, the land in dispute, and after-wards became the owner of this part, and that therefore he and those claiming under him, were estopped from claiming against Benzinger and Eschbach, or their successors in title.

      The cause was tried November 10th 1870, before Johnson, P. J., of the Sixth district. It had been tried before, and the judgment reversed: Lawrence v. Luhr, 15 P. F. Smith 236.
    The plaintiff gave in evidence assessment of No. 4883, and treasurer’s sale August 1832, of 409J acres; and traced the title of 159J acres to Payne, September 1st 1848.
    Also, assessment in McKean county of No. 4883, for 1840 and 1841; land sold for taxes June 13th 1842, to Nelson Richmond. Deed, Richmond to A. McCreery, September 4th 1846, reciting that the grantor claimed by deed from the treasurer of McKean county. Deed, McCreery to Hiram Payne, January 3d 1848, No. 4883 for 143 acres, reciting the land to be same, sold by D. Crow, treasurer to N. Richmond in 1842.
    The plaintiff then gave evidence by Rrewster Freeman that he was the husband of N. Richmond’s widow; she was his administratrix; witness had charge of the business; he had made search amongst Richmond’s papers for a treasurer’s deed, dated June 13th 1842, for 143 acres of warrant No. 4883, and could not find such deed. McCreery, a former owner, died, in 1868; .witness went to his residence and had access to his papers ; he searched diligently and could not find the deed; Crow, the treasurer, died about 1867. The plaintiffs gave evidence also by the deposition of Hiram Payne, of his unvailing search for the deed from Crow the treasurer to Richmond.
    The plaintiff then offered in evidence the record from the prothonotary's office of the acknowledgment of deed in open court by David Crow, treasurer, on the 13th of July 1842, for 143 acres of No. 4883 to N. Richmond. The offer was objected to by the defendants, admitted by the court and a bill of exceptions sealed. Plaintiff further gave in evidence: Assessment in Shippen township, No. 4883, 209 acres for 1844 and 1845, sold to Hiram Payne for taxes, and deed to him, dated September 24th 1846.
    Deed, H. Payne to Newell Matson, dated June 17th 1852, for an undivided half of the east half of No. 4883, 511J acres. Deed, April 17th 1853, same to same for the other undivided half of east half of No. 4883, 511J acres. Also, assessment and payment of taxes by Payne and Matson, respectively, from 1846 to 1858. Treasurer’s sale for taxes in the name of Payne, and deed July 14th 1860, to J. C. Chapin, and deed Chapin to Mat-son for same tract, November 19th 1860. Deed July 18th 1865, Matson to J. J. Lawrence and A. J. Cassatt, plaintiff, for nineteen-twentieths of the same tract. Deed, January 8th 1868, Matson to A. L. Tyler, plaintiff, for one-twentieth of the same tract.
    Lawrence, one of the plaintiffs, testified that he bought of Newell Matson, of Milwaukee, nineteen-twentieths of three tracts of land, one being the east half of No. 4883, containing 511J acres; the deed was dated July. 18th 1865; he paid Matson $23,500 in cash, and afterwards paid him $2000 for the remaining one-twentieth bought by Tyler.
    On cross-examination, he said he saw the land before he bought; saw the corners and some lines on all the warrants; there was something said about some -settlers who were supposed to have located across the line on the land witness and his associates had purchased; he learned this after they purchased; it was said some settlers had cleared over a few acres by mistake.
    The defendants gave evidence that warrant No. 4883 was bounded north by No. 4882, south by No. 4886, and east by the district line. On the 22d of February 1845, Benzinger and Eschbach, who resided in Baltimore, purchased No. 4886 and other Willink warrants from Thomas P. Stryker, they being ignorant of ■ the location. Benzinger testified that, being in St. Mary’s, Elk county, in 1845, Hiram Payne called on him and said that he (Payne) had been agent for the Stryker lands, was a surveyor, and desired to do Benzinger and Eschbach’s surveying; said he would locate the lands. Payne commenced work in June, and three or four days afterwards told witness that he had found the “ maple corner,” and he would have no difficulty in locating the lands. Witness acted on Payne’s location: roads were laid on No. 4886, with the other warrants, and divided into farm lots, and sold, according to Payne’s location. In September 1846, Payne and Benzinger and Eschbach were at the “maple cornerhe said,
    “ This is the bugbear in the way of the Sunbury and Erie railroad; he had bought lands in that vicinity which we ought to have;” they were located north of those he had located for Benzinger and Eschbach; No. 4883 was one of the numbers; they never owned or pretended to own No. 4883 ; .Payne used his own papers and maps.
    Eschbach testified that he relied entirely on the ability of Payne, • who professed to be fully acquainted with the corners, courses, &c.
    Hiram Payne, by his deposition, testified that he had first called Benzinger’s attention to the Stryker lands, including No. 4886. After Benzinger’s purchase witness surveyed for him; no part of No. 4886 or No. 4883 was then improved; it was an unbroken wilderness; in the opinion of witness, “then and now,” his location of No. 4886 was correct; there were then no subdivision lines or improvements ; witness had no. hand in making the final contract with Benzinger; witness gave no encouragement to Ben-zinger to purchase the land; he did not know what land the defendants occupied.
    Defendants gave evidence that Benzinger and Eschbach located lots and farms on No. '4883, supposing from Payne’s location that they were on No. 4886.
    Also evidence that the portions of the land claimed by the defendants had been purchased by them and their predecessors from 1849 to 1860, and had been improved; also that Payne had been on the property and along the line in 1845, when there were some settlements of the Benzinger and Eschbach lands; that at that time Payne went out to show his own land.
    There was evidence that there were settlers on the land as early as 1845.
    Newell Matson (by deposition) testified that he purchased half of the east half of No. 4883 from Payne April 17th 1853, and afterwards purchased from him the other half; witness “ quit-claimed” to John J. Lawrence and others in the spring of 1865; he was on what he supposed to' be the lands; they were shown him by Payne; witness could not state the position of the lands with reference to roads, streams and settlers.
    The facts in the case will be found fully set out in Lawrence v. Luhr, supra.

    The plaintiff submitted these points, which were affirmed:—
    1. The facts given in evidence in this case do not raise the question of an estoppel, and the doctrine of an equitable estoppel does not apply to the plaintiffs so as to prevent a recovery by them of all the premises described in the writ except that portion for which disclaimers are filed.
    2. Under all the evidence the plaintiffs are entitled to recover all’the lands claimed in the writ, which are not disclaimed.
    The defendant’s first three points, which were denied, were:—
    1. If the jury believe that Hiram Payne was a surveyor by profession, and by his assurance of. professional skill, and that he possessed important information for the work, secured from Ben-zinger and Eschbach the job of locating their lands, and their implicit confidence in his ability to do it properly; that he did locate warrant No. 4886, on the land occupied by the defendants,, that he ran roads through it, and ran off lots for settlers upon it, that Benzinger and Eschbach relied upon his location, made sales of lots according thereto, to actual settlers, and entangled themselves by conveyances thereof, with covenants of warranty; that Payne purchased the east half of 4883 in 1846, believing it to be located north of the land now sued for, continued the owner thereof until 1853, claiming all the time that his land 4883 was north, that during all this time the defendants and those under whom they claim, were buying, settling upon and improving this land with Payne’s knowledge, they knowing also that Payne claimed the land north and not this; then Hiram Payne would be estopped from asserting his title against the defendants.
    2. If the jury believe in addition to the facts stated in the first point, that Newell Matson bought of Hiram Payne after a personal inspection and examination of the lot north of the land in controversy, and in view of its advantages; that in the contemplation of both Payne and Matson it was the said lot north of this which passed at the sale; that at the time of Matson’s purchase, the defendants were living upon the land and Matson knew of their improvements, then Matson is in no better 'position than Payne, and could not recover against the defendants.
    8. The possession of defendants at the time of the purchase by Matson from Payne, and at the time of the purchase by the plain-1 tiffs from Matson, was notice of their equities against Payne.
    Their 4th point was :—
    4. The amendment of the record by the addition of A. L. Tyler as a party plaintiff, cannot avail the plaintiffs so as to enable them to recover in this action the one-twentieth owned by him; the said Tyler’s ownership being distinct and supported by additional evidence ; the said amendment not affecting the merits of the suit so far as concerned the original plaintiffs, and the omission so to amend not affecting Tyler’s rights in any suit he might bring.
    To this the court answered:—
    “ We think the defendants’ fourth point not tenable. The court has at a previous time passed and we think properly upon the plaintiffs’ right to amend. If they erred in that, exception can be taken to it, upon a writ of error.”
    The court further charged: * * *
    “ The plaintiffs here being equally innocent with the defendants in producing the collision between them, having by no word or act induced or encouraged the defendants settling on or improving their land, should not be visited with the consequences of Payne’s blunder of which they had no knowledge. The claim of the title to the land they purchased had no broken link or flaw in it, perceptible to the eye by the closest scrutiny. It has therefore been ruled that under the facts in this case the doctrine of estoppel does not apply to the plaintiffs.” * * *
    The verdict was for the plaintiffs.
    The defendants took out a writ of error and assigned for error:
    1. Admitting the record of the acknowledgment of the treasurer’s deed.
    2. Allowing the amendment to the record by adding Tyler’s name as plaintiff.
    3. 4. The answers to the plaintiffs’ points.
    5-8. The answers to the defendants’ points.

      J. Gr. Hall, for plaintiffs in error.
    If there was no delivery of the deed from David Crow, treasurer, to N. Richmond, he acquired no title to the land: Donnel v. Bellas, 10 Barr 341; Donnel v. Bellas, 1 Jones 341; Gault’s Appeal, 9 Casey 99 ; Hoffman v. Bell, 11 P. F. Smith 444. To supply its place by secondary evidence of its contents, it was necessary to prove the deed had been delivered: McCredy v. The Schuylkill Nav. Co., 3 Whart. 424; Jack v. Woods, 5 Casey 375. A recital in a deed is not evidence against a stranger: Morris v. Vanderen, 1 Dallas 65; Dean v. Connelly, 6 Barr 239 ; Meals v. Brandon, 4 Harris 225. At the date of the amendment, the Statute of Limitations had vested some of the defendants with a complete defence as against Tyler. Whenever the. rights of a party are liable to be defeated by having joined too few or too many plaintiffs or defendants, these amendments may be made. ■ The amendment was not necessary to the recovery of Lawrence and Cassatt. They recover neither more nor less than if Tyler had not been joined.
    An amendment ¡swill not be allowed which introduces a new cause of action: Gardner v. Post, 7 Wright 19. Especially one which introduces a cause of action barred by the Statute of Limitations: Wright v. Harts, 8 Wright 454; Stout v. Stout’s Administrator, Id. 457.
    Where a loss must fall upon one of two innocent persons, it shall be borne by him whose act occasioned it: Robinson v. Justice, 2 Penna. R. 19; Maple v. Kussart, 3 P. F. Smith 352; Millingar v. Sorg, 5 Id. 225. Where one encourages another to settle upon land, improve it, &c., he will not be permitted to take it, though he has an older and better title to it: McKelvey v. Truby, 4 W. & S. 323. Where an act is done or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to what would otherwise be mere matter of evidence: Stephens v. Baird, 9 Cowen 274; Derry v. Field, 5 Metc. 381; Congregation v. Williams, 9 Wend. 147; Com’th v. Moltz, 10 Barr 530; Ludlam’s Estate, 1 Harris 192; Patterson v. Lytle, 1 Jones 53; Beaupland v. McKeen, 4 Casey 131. The only one whom the law protects against a trust or equity existing against the grantor is an innocent purchaser for a valuable consideration without notice. And he must show that he has paid the purchase-money: Bellas v. McCarty, 10 Watts 29; Rogers v. Hall, 4 Id. 362; Lewis v. Bradford, 10 Id. 82; Union Canal v. Young, 1 Whart. 431; Bolton v. Johns, 5 Barr 145. A purchaser is liable not only for all that he actually discovers, but for all that, with due diligence, he might have discovered: Jacques v. Weeks, 7 Watts 272; Hood v. Fahnestock, 1 Barr 474; Kerr v. Day, 2 Harris 112; Wright v. Wood, 11 Id. 121.

      S. Souther and JR. Brown, for defendants in error.
    As to the admission of the record of the acknowledgment of the deed of Crow, treasurer: cited, Reinboth v. Zerbe Run Improvement Co., 5 Casey 139. The case is not varied from Lawrence v. Luhr, l5 P. F. Smith 236.
   The opinion of the court was delivered, May 17th 1873, by

Agnew, J.

After having given evidence of a treasurer’s sale and laid the usual ground by proof of a diligent and fruitless search for the treasurer’s deed, the plaintiffs offered the record in the prothonotary’s docket, of the acknowledgment of the deed, to prove its existence and contents. To this the defendants excepted, but we think without sufficient reason. This is the usual and proper mode of proving the existence of the deed, and identity of the land sold and conveyed by the treasurer. The case has been argued in this court, on the question of the delivery of the deed, but this was a fact to be submitted to the jury. The defendants made no point on the delivery. Doubtless the court would have submitted this question with proper instructions, had a request been made. There was evidence of a strongly presumptive kind 'to go to the jury. The sale was made and acknowledgment of the deed entered of record in 1842, a period of thirty years beforé the trial. A claim of title has since been made under the sale, and sales and conveyances made accordingly. These facts, together with the Act of 13th March 1817, requiring the purchasers at treasurer’s sale, so soon as the property is struck down, to pay the purchase-money, or so much thereof as shall be necessary to pay the taxes and costs, and also one dollar, the fee of the prothonotary for entering the acknowledgment of the deed, in connection with the fact that the acknowledgment was so entered, were ample evidence from which the jury might have inferred a delivery of the deed. We discover no error in this bill of exception. Nor do we think the court erred in permitting the name of Alfred L. Tyler to be added as a plaintiff, and part owner of the land. The plaintiffs brought their ejectment for the whole tract of 500 acres, as an entirety. They did not claim an undivided interest. On discovering that the title to one undivided twentieth Was in Tyler, the motion to amend was made on the ground of an omission of his name. The legislature has gone far to prevent the loss of a trial and delay, by allowing amendments, even to the form of action, and the courts have seconded the effort to reach the merits of the cases and prevent a failure of justice through technicalities: Trego v. Lewis, 8 P. F. Smith 46; Heidelberg School District v. Hunt, 12 P. F. Smith 307; Election Cases, 15 P. F. Smith 35; Leonard and Wife v. Parker et al., 22 P. F. Smith 236. In doing this, it is our duty, however, to see that amendments are not made in a manner to deprive the opposite party of any valuable right. As remarked in Trego v. Lewis, supra, the court will not permit a party to shift his ground or enlarge its surface, by introducing an entirely new and different cause of action, especially when, by reason of the Statute of Limitations, or an award of arbitrators, or from other good reason, it would work an injury to the opposite party. It is claimed in this case, that at the time Tyler’s name was added to the record, his title was barred by the Statute of Limitations. But it is very evident that when it concerns title to real estate, a defence under the Statute of Limitations must necessarily go to the jury. Such a defence is affected by such a variety of circumstances, as to the extent and nature of the possession, condition of the parties, length of time, &c., it must be left to the jury on all the facts. It is the right of the parties to have proper instructions to the jury, and the defendants in this case might have asked the court to say, that if Tyler’s title was barred by the statutes when his name was added, there could be no recovery in the action of his proportion of the land. Substantially, all these questions were determined in Leonard and Wife v. Parker et al., supra. It was right, therefore, to allow the amendment, leaving the defendants to their prayer for proper instructions, according to the nature of the case, as developed in the evidence.

In regard to the question of estoppel, we think the state of the case is not different from that which was presented when it was here before, and is governed by the opinion then delivered. See Lawrence v. Luhr, 15 P. F. Smith 236. The mistake of Payne, as a surveyor, in locating tract No. 4886 on tract No. 4883, was an innocent act. This is evident from the testimony, and also from the fact that when he bought 4883 afterwards, he located it north of its true location, and adjoining No. 4886. He also sold 4883, according to this mistaken location, to Matson, a non-resident, and, like himself, ignorant of the mistake. In buying 4883, there was no want of good faith to the owners of 4886, either on Payne’s part or Matson’s. It was long after Matson bought 4883 from Payne before he, or his vendees, became aware of the fact that the true location of 4883 was that occupied by the owners of 4886. It was impossible, therefore, when Matson bought 4883, that he could make inquiries of the occupants of the tract, supposed to be 4886, to know by what title they held the land they were thus occupying. It was then unknown that there was a conflict of title. The same mistake which misled the vendors of the defendants, misled Matson, and he was equally»innocent with them. Each claimed a different tract, as known by the original number, and held by a different title. The common presumption applicable to every owner that he knows the identity of his own land, applied equally to each, and yet each was innocently mistaken, and neither was the cause of the mistake in the other.

If he was bound to know the location of 4883 on the ground, so were they to know where 4886 lay. If they were misled by Payne, he was likewise. Payne, though the innocent cause of the mistake, might be estopped when he became the owner of No. 4883, from claiming it from those whom his mistake had injured; on the principle, that as between innocent persons, one of whom must suffer a loss, he shall bear it who was the cause of it. Mat-son, however, is not only an innocent party, but was not instrumental in causing the loss, and was incapable of avoiding the position he fell into, by any inquiry he could be led to make. The subsequent discovery of the error of location not only shifts them, but also shifts him. He has the title to 4886; they have not; both are equally innocent, and therefore he must prevail. The argument so strongly pressed upon us, and the authority cited upon the notice which actual possession furnishes, and the duty to follow up the challenge it gives, fails in this case, owing to its peculiar circumstances.

Judgment affirmed.


author: Mercur, J.

text:
    George et al. versus Messinger et al.

    1. Residence without cultivation, or cultivation without residence, will prevent land from being sold as unseated.
    2. Cultivation is sufficient without regard to the value of the product or its adequacy to discharge the taxes.
    3. Residence or cultivation commences at the moment of entry, and if continued seats the tract; but a residence may bo so short or the cultivation so slight as to make the intention a controlling element.
    4. Timber land was used for lumbering, the owner erected buildings, barns, &c., for those employed, there was some cultivation arid there were wagons, teams, &c., on the premises. Held, that the land could not be sold for taxes as unseated.
    5. That the land was decreased in value by the lumbering did not alter the case.
    6. Lackawanna Iron Co. v. Fales, 5 P. F. Smith 98, followed.
    March 24th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of JElk county: No. 19, to January Term 1872.
    On the 13th of April 1869, George D. Messinger and Gilman T. Wheeler issued a writ of ejectment against James George and William Dilworth, Jr., for warrant No. 2954, in Spring Creek township, containing 900 acres, &e.: the writ was served on George only.
    The plaintiff’s title was under a treasurer’s sale for taxes, for 1864; the sale was to L. J. Blakely; deed acknowledged July 5th 1866; and assigned by endorsement November 8th 1866, to Joseph C. Law, who conveyed to plaintiffs July 27th 1868.
    The defendants gave evidence of a treasurer’s sale for taxes of the same warrant to Silas Blake and deed acknowledged September 24th 1850. Deed, Silas Blake to John B. Brown and others, February 16th 1852; deed, John Brown and others to Henry E. Perley, June 27th 1855;, deed Henry E. Perley and others to J. N. Breeden and others, June 16th 1857 ; deed, J. N. Breeden and others to William Dilworth, Jr., and A. S. Rhines, January 23d 1862. Death of Rhines in 1865, leaving a widow and seven minor children. Receipt of treasurer of Elk county, February 6th 1869, “for redemption of tract No. 2954, sold to L. J. Blakely, for taxes of 1864, for minor heirs of A. S. Rhines.”
    The defendants gave evidence by Henry R. Moore, that the first improvement was made in 1859, for the purpose of lumbering ; a log barn and house were built for that purpose; they were permanent buildings as long as they would last; the tract was operated on that-winter by Richard, and Bill; their men lived there; one had a family; they took lumber for two years, and sold to Robertson & Ittle; they took lumber off, increased the improvements, planted potatoes, &c.; in 1860, another house was built, and about one acre cleared; they had teams of their own and hired a good many; had household furniture in their house, operated one winter, 1862-68; George bought out Robertson & Ittle in 1863 ; he lived there till 1867 or 1868; James Burns lived in one of the houses till 1871. Until 1864, -there were four houses on the land, new barn built in 1865, teams, sleds and wagons on the place all the time from 1859 till 1864; about 31-acres of land cleared and worked, hay, potatoes and garden stuff raised on it from 1863 and before; the land haid been used continually for lumbering purposes since 1859; the personal property on the land in 1863 and 1864, was worth $500 or $600, besides the logs, worth $400 or $500. The men who lived on the land were jobbers under Rhines and Dilworth; the houses were lumbering shanties, and for carrying on lumbering business. The barn built in 1865 was a frame barn, with stables on each side and floor between, and lofts for'hay, &c., with shingle roof; not usual to build such barns for lumbering purposes.
    There was other evidence of the same character as to the mode of occupying the land.
    The plaintiffs, in rebuttal, gave evidence by Thomas Irwin, that he was assessor in 1861, and that he then assessed the land as unseated under the instructions of Rhines; the buildings on the land were such as are usually put up for a job of such magnitude; none of the land was good for agricultural purposes. Other witnesses testified in the same manner.
    The plaintiffs’ third point and its answer were:—
    If the jury believe that Rhines returned the tract with such improvements thereon as is shown by the evidence as unseated, then he and those claiming under him are estopped from claiming the land as stated and occupying a different character for taxation purposes than claimed by him when assessed.
    Answer: “We are not quite prepared to affirm this point fully, but if you believe that Rhines did so state to the assessor when asked how he wished the land assessed, it is evident that he did not consider the improvements made permanent in their character, or with a view to seating the land.”
    Their fourth point, which was affirmed, was :—
    The redemption of 6th of February 1869, by the administrators for the minor heirs of A. S. Rhines, deceased, is a nullity, as the interest of said heirs in the land was divested by the. administrators’ previous sale in pursuance of an order of the Orphans’ Court to William Dilworth, Jr., of 4th March 1869.
    The defendants’ first point, which %as denied, was:—
    Andrew S. Rhines was the owner of the undivided half of the land in controversy at the time of his decease, and left heirs who were all minors and continued so to be until after the 6th day of February 1869; the redemption of the undivided half of said land on the 6th day of February 1869, by the administrators of said Rhines, was valid, and as to the said undivided one-half of said land the verdict must be for the defendants.
    The second point and the answer were:—
    If the jury believe that Rhines and Dilworth were by their tenants in actual possession of the land in 1864, at the time of the assessment thereof, and were using the same for the purpose of making profit therefrom, the character thereof has changed from unseated to seated, and the plaintiffs cannot recover.
    Answer: “ We answer this point in the affirmative, if the jury believe that the improvements made on this land were made with the intention on the part of the occupants to make them permanent and to derive profit from the land so improved, but if these improvements were made only to enable the occupants to cut the timber off the land, and to be abandoned when they had served that purpose, they did not change the land from unseated to seated, and it could be sold as unseated land.”
    Their third point and the answer were:—
    If the jury believe that at the time of the assessments in 1864 there were persons residing upon and improving the land in dispute, and there was sufficient property upon the land to pay the taxes, the character of the land has changed from unseated to seated, and the sale of the same would pass no title, and the plaintiffs cannot recover.
    Answer: “ We have already told you in our general charge that if the occupants were there not as tenants but only as jobbers or workmen, with no intention to occupy the land permanently or to make themselves personally liable for the taxes assessed on the tract, it matters not how much personal property they have on the land, that fact would not change the land from unseated to seated, and we refer you to our answer to defendants’ second point for further answer to this point.”
    The court (Yincent J., of Sixth District,) further charged :— * * * [ “ Did, then, the persons who built or occupied the houses and shanties, and made these small improvements on the land, do so with a view to a permanent occupancy and use of them as their property ?
    “ Did they, when they went on this land and made these improvements, intend to make themselves personally liable for the taxes assessed upon the land ? *
    “ Unless both these questions can be answered in the affirmative, the improvements made by these occupants would not change this land from unseated to seated.”] * * *
    “According to the evidence, these houses and improvements, or at least a large' part of them, were then on the land, and if you believe that under such circumstances Rhines declared the land unseated, it is evidence that he did not then consider these improvements or the then occupancy of the land permanent, and the Supreme Court has said that in a doubtful case, such an act, on the part of the owner of the land, should have a preponderating effect.
    “ [If in 1864, the land was unseated, or in other words, if the occupancy was only temporary, the fact that the occupants so on the land had personal property on it sufficient to pay the taxes, would not transfer it from the unseated to the seated list.”] * * *
    The verdict was for the plaintiffs.
    The defendants took out a writ of error and assigned for error:
    I, 2. The parts of the charge in brackets.
    3, 4. The answers to the plaintiffs’ points.
    5, 6, 7. The answers to defendants’ points.

      II. Souther, for plaintiffs in error.
    It is sufficient that there is a personal responsibility for taxes, to make it the assessor’s duty to assess the land as seated : Rosenburger v. Schall, 7 Watts 390; Scheaffer v. McKube, 2 Id. 422; Kennedy v. Daily, 6 Id. 269; Fisk v. Brown, 5 Id. 441; Biddle v. Noble, 18 P. F. Smith 279.

      J. Gr. Sail and M. Brown (with whom was O. B. Ourtis), for defendants in error.
    A temporary occupancy of wild land for a temporary purpose, by persons not pretending to any claim to the land, and having no intention to make themselves liable for the taxes, does not give a seated character to the whole tract, notwithstanding the express instruction of the owner to assess the same as unseated. To seat land, the residence or improvement must be permanent in its nature, and must be made by one claiming as owner or tenant: Mitchell v. Bratton, 5 W. & S. 451; Ellis v. Hall, 7 Harris 296. The intention must necessarily enter into the question, for no man can properly be charged with taxes on land which he does not claim to own or use, nor beyond the extent of his claim: Wallace v. Scott, 7 W. & S. 248; Campbell v. Wilson, 1 Watts 503. Where an owner suffers his land to remain on the unseated list, and pays taxes for it as such, this in a doubtful case may turn the scale: Foster v. McDivit, 9 Watts 348.
   The opinion of the court was delivered, May 17th 1873, by

Mercur, J.

The right of the plaintiff below to recover, was predicated on a treasurer’s sale of the land, as unseated, made in 1866, for the taxes of 1864. The defendant held- an earlier title, and claimed such a residence upon the tract and cultivation of it as to make it seated in 1864, and invalidate the plaintiff’s purchase of 1866.

As the attempted redemption of a portion of the land in 1869, was in behalf of persons who had no interest whatever in the land, the fourth and fifth assignments of error are not sustained: Chadwick et al. v. Phelps et al., 9 Wright 105.

The remaining five assignments will'be considered together.

It is well settled that residence without cultivation, or cultivation without residence, will prevent land being sold for taxes, as unseated: Kennedy v. Daily, 6 Watts 269. Cultivation is sufficient for the purpose without regard to the value of the product or its adequacy to discharge the taxes: Wilson v. Waterson, 4 Barr 214. It is the actual residence, or actual cultivation, which changes the character of the tract. A mere intention to take up the one or to perform the other, will not suffice.' Residence or cultivation commences at the moment of entry, and if continued, must be considered as seating the tract. We do not wish to be understood as saying, that a term of residence might not be so short, or the cultivation so trifling, as to make the intent a controlling element in the case. Such, however, is not the case here. The acts necessary for a person to do to seat land which he owns, must not be confounded with those acts which are necessary to create a title in a pre-emptor. In the latter class of cases it was said, in Wilson et al. v. Waterson et al., supra, that the intention to use the land only, while timber remained, or for any other temporary purpose whatever, gives no pre-emption right. That was an attempt to establish a pre-emption right prior to the entry under which the other party claimed title.

In this case, Dilworth was the owner of the land. In the autumn of 1859, he set men to work upon it. They built two houses and a barn. During the winter, one of the men remained upon it.‘ In each year thereafter some land "was cleared, and potatoes, hay, oats, rye and vegetables were raised thereon. Two or three more houses were erected thereon. So that in 1864 there were four houses standing upon it, and from three to four acres of improved land. During all these years, several families continued to reside upon the land. Most of the time several teams, sleds, wagons and chains were kept there. The personal property kept on the land in 1863 and in 1864, was worth from $500 to $600, besides the logs cut thereon, which were worth from $400 to $500 more. In 1865 the log barn was torn down, and a framed barn built. It is not necessary that the owner should have been personally residing upon the land, or personally cultivating it. Nor is it necessary that the persons performing the work should have been technically his tenants under leases from him. It is sufficient that they were in possession under him, and were there engaged in his employ. Nor does it matter that these improvements which were made, were designed only to enable the occupant to cut the timber off the land, and to be abandoned when they had served that purpose. They were not trespassers. The work in which they were engaged was being done under the direction and for the benefit of the owner of the land. They were holding it under him and for him. It was well said by Justice Thompson, in Lackawanna Iron Company v. Fales, 5 P. F. Smith 98, “ residence with a bond, fide intention to hold it. as owner, or for the owner, and performing labor on it, such as mining coal, raising ore and the like, in the character of owner, would undoubtedly give the land the character of seated.” This' ease shows that it is not necessary that the value of the land must be enhanced, for the removal of the coal, as well as the removal of the timber, may lessen its value. Yet the act of doing such work upon the land may seat it. Nor do we think it necessary to prove that when these employees went upon the land, and made these improvements, they intended to make themselves personally liable for the taxes assessed upon the land. These acts were sufficient to seat it, if the evidence is believed. The owner of the land was personally liable, and there was abundance of personal property upon the land out of which the taxes might have been collected. The defendant below was entitled to an affirmative answer to his second and third points submitted, and the errors are sustained.

Judgment reversed, and a venire facias ele novo awarded.


author: Sharswood, J.

text:
    Green et al., Adm’rs, versus Brennesholtz.
    1. A warrant and survey were in the name of McNair; after his death, a patent was made to the plaintiff reciting that the land had been conveyed to him by the executor of McNair; there being no evidence of authority in the executor to sell, the recital was not evidence of plaintiff’s title against one in possession.
    2. Plaintiff having a patent sued in trover under Act of March 29th 1824, for timber cut from the land before the date of the patent, not showing that he then had the title of the warrantee. Held, that he could not recover. ■
    3. The defendant’s liability was fixed to the owner at the time of the conversion.
    4. Gingrich v. Foltz, 7 Harris 38 ; Penrose v. Griffith, 4 Binney 231, followed.

      March — 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, J J. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: No. 364, to January Term 1872.
    This was an action of trover under the Act of March 20th 1824, sect. 3 (8 Smith’s Laws 283, 2 Br. Purd. 1397, pi. 2), for timber-trees cut, brought January 28th 1869, by Peter Brennesholtz against Luther Green and others, administrators, &c., of Luther Green, deceased.
    The trees had been cut by the defendants’ intestate, in the winter of 1867-1868, from lands claimed by the plaintiff. The land was unimproved and the plaintiff was not in actual possession.
    He gave in evidence warrant dated October 8th 1840, to Andrew McNair and Robert McNair for 357 acres, and survey for 331 acres and 17 perches May 25th 1841; patent September 8th 1868, to plaintiff for 114 acres.
    The patent contained the following recital: “ Which said tract was surveyed in pursuance of a warrant dated October 8th 1840, granted to the said Andrew and Robert'M. McNair, and whereas Robert M. McNair, executor of the said Robert McNair, deceased, who inherited the estate of the said A. McNair, conveyed said part of the tract, by a certain conveyance dated 4th March 1867, to the said Peter Brennesholtz.”
    On the 14th of March 1833, Andrew and Robert McNair gave a power of attorney to Charles McNair, which was recorded, authorizing him to sell and convey certain lands mentioned in it. On the 2d of July 1845, Andrew and Robert McNair by their attorney Charles McNair, contracted in writing to sell to Joseph Green 245 acres 119 perches, and had received payments to the amount of f>348.20. The description was by a survey made by James Hilands, which was lost. The question whether the land on which the timber had been was included in the contract, was submitted to the jury.
    The defendants’ points were:—
    2. The plaintiff having shown the title to have been in Robert and Andrew McNair in 1840, he cannot recover unless he shows their title to be vested in himself prior to the time the timber was taken from the premises, and the recital in the patent that Robert W. McNair, executor of Robert McNair, deceased, conveyed the land from which the timber was taken to the plaintiff is no evidence that the title of Robert and Andrew is vested in the plaintiff.
    4. There is no evidence that the title of Andrew McNair was vested in the plaintiff prior to the taking of the timber in the declaration mentioned, and the plaintiff is not such owner of the land as enables him to recover under said Act of 29th March 1824.
    The court (Johnson, P. J.) after stating plaintiff’s title said: * *

      “ These recitals are prima facie evidence of the facts therein stated as against the Commonwealth, and all claiming title under grant therefrom subsequent to the date of the patent in which they are contained. They are also sufficient evidence of the facts stated as against a naked trespasser on the land, a mere intruder without title, but not against one claiming title either from the .Commonwealth, or from the equitable owner anterior in date to that of the plaintiff’s patent. As against a party holding a paramount title they are not evidence of anything. But if good at all they are good for all they contain, good as evidence of the date as of the fact of transfer of title. If the defendants have shown no title in themselves or in Joseph Green, the plaintiff is entitled to the benefit of the recitals, and to be treated as owning the land by the title as conveyed and recited in the patent. This brings us to the real question, and the only one of disputed fact in the case, and that is whether the defendants have shown any title whatever in Joseph Green.” * * *
    To defendants’ second point the court answered:—
    “If you believe the defendants have shown no title to the lands in question, then the plaintiff has shown sufficient title to enable him to recover, and the recitals in the patent are primá facie evidence of the.facts stated against a mere intruder.”
    To the defendants’ fourth point the court said: “We have already given an answer.”
    The verdict was for the plaintiff for $197.20.
    On the removal of the record to the Supreme Court the defendants assigned for error the answers to their third and fourth points, and the charge of the court.

      Brown Stone, for plaintiffs in error.
    Recitals in a patent are not evidence, against one holding by right prior to its date: Penrose v. Griffith, 4 Binney 221; Gingrich v. Foltz, 7 Harris 40; Read v. Thompson, 5 Barr 329; Bell v. Wetherill, 2 S. & R. 350.

      Binsmore $ Beeves, for defendant in error.
    Recitals in a patent are evidence against a defendant who shows no title but possession: Whitmire v. Napier, 4 S. & R. 290 ; Downing v. Gallagher, 2 Id. 456; Steiner v. Coxe, 4 Barr 13; Gingrich v. Foltz, 7 Harris 40.
   The opinion of the court was delivered, May 17th 1873, by

Sharswood, J.

Admitting the application to this case of the rule that the recitals of title in a patent are prima facie evidence, not only against one claiming by subsequent grant from the Commonwealth, but also against one who relies on possession alone, and shows no title, the learned judge was not warranted by the recital itself in the position that at the time of the alleged conversion the plaintiff below was the owner of the land. In his answer to the second point of the defendants he referred to his general charge, and in that he had instructed the jury that the patent recited substantially, inter alia, that Robert McNair was dead, and Robert M. McNair was his executor, with power to sell, but there was not a .word in the recital about any power to sell. It recites merely a conveyance by Robert M. McNair, executor of Robert McNair, deceased. It requires no authority to show that an executor has no authority as such to convey land. He must have power by the will, or by an order of the Orphans’ Court. Such a power surely is not to be inferred by the mere fact of a conveyance by the executor. There was error therefore in the answer that the plaintiff had shown sufficient title to enable him to recover. ,

But we are of opinion that the rule in regard to recitals in patents from the Commonwealth, as we have just stated,-had no application in this case. It was an action of trover for timber trees, cut and taken off by the defendants’ intestate, Joseph Green, from land which the plaintiff claimed to own. It was undoubtedly necessary that the plaintiff should show that he was the owner of the land at the time of the conversion, which was when the trees were out and taken off in the winter of 1867-8: Act of 29th 1824, 8 Smith 283. That was prior ‡0 the date of the patent to plaintiff. The liability of the defendants’ intestate was fixed at the time of the conversion to the then owner. If at that time the plaintiff had tried his action, he must.have produced the title from the warrantees. The patent was not then in existence. If Joseph Green had then a right originating by warrant or settlement at that time, it is agreed that the recital in the subsequent patent would not be admissible in evidence against him to prove the warrant or its devolution to the patentees: Penrose v. Griffith, 4 Binn. 221; Gingrich v. Foltz, 7 Harris 40. If then a right arising prior to a patent cannot be affected by a recital in such patent, surely it is a logical consequence that neither can a liability. When the controversy relates either to a right or a liability, which are in their nature correlative, we must adjudge it by evidence then existing, not by evidence subsequently created; unless, indeed, it be the judgment of a competent court. Brennesholtz certainly could not subsequently make evidence for himself; neither were the officers of the land-office a competent tribunal to pronounce judgment upon his title, so as to affect the liability of Green to an action for trespasses prior in date to the patent. If the heirs or devisees of Robert McNair had brought an action, claiming to have been owners of the land at the time of the conversion, Green certainly could not have availed himself of the recital in the patent to show that their title had passed to Brennesholtz, neither ought Brennesholtz to be allowed to do so.

Judgment reversed, and a venire facias de novo awarded.


text:
    Bower versus McCormick.
    1. When a plaintiff's claim before a justice is reduced below $100 by payments or dealings which are actual payments, the justice has jurisdiction; but jurisdiction cannot be given by merely remitting a part.
    2. Interest being an incident, may be waived, but no part of the principal can be thrown away in order to give jurisdiction.
    3. Where, as in trover, the value of goods has no fixed standard, but depends on circumstances and opinion, it seems, a plaintiff, in an action before a justice, may fix the value on his own belief.
    4. Plaintiff before a justice claimed the value of logs, “ measuring 20,310 feet at $6 per thousand, from which he deducts $22, leaving a balance now claimed of $99.86. Held, that this did not give the justice jurisdiction.
    5. Collins v. Collins, 1 Wright 387 ; Evans v. Hall, 9 Id. 235, approved.
    March 26th 1878.
    Before Read, C. J., Agnew, Sharswood and Merour, JJ. Williams, J., at Nisi Prius.
    Erro» to the Court of Common Pleas of Lycoming county: No. 47, to January Term 1872.
    This case commenced before a justice of the peace. It was an action of trover and conversion by Seth T. McCormick against John Bower; the summons was issued April 28th 1856, returnable May 8d 1856.
    The transcript of the justice is as follows: “ May 3d 1856, plaintiff appears, defendant does not appear. Plaintiff claims the value of 107 saw logs, measuring 20,310 feet board measure, at $6 per thousand, from which he deducts $22 — leaving a balance now claimed of $99.86. Cause continued to May 9th 1856. * * * And now, to wit, May 9th 1856, plaintiff appears and produces proof of ownership in logs, and that they came into possession of defendant. Defendant does not appear. Judgment by default for $99.86 and costs. May 25th 1856, defendant appeals.”
    The cause was tried September 5th 1871, before Gamble, P. J. The plaintiff gave evidence to show his ownership of the logs, and testified, “ they were worth more than I claimed before the justice.” There was other evidence also as to the ownership of the logs, and to other questions arising in the court below. The only question considered by the Supreme Court was that of the justice’s jurisdiction.
    The following are points of the defendant, with their answers:—
    1. The claim of the plaintiff, as appears by the transcript filed, exceeded one hundred dollars before the justice, no reduction could be made by plaintiff to give jurisdiction.
    Answer: “ Whilst the items comprising the plaintiff’s claim, as stated in the transcript of the justice, would, by calculation, exceed one hundred dollars, yet the actual sum demanded, which is the test of jurisdiction, is under one hundred dollars. I decline, therefore, to instruct you positively that the claim of the plaintiff. as appears by the transcript filed, exceeded one hundred dollars before the justice. But say to you, that no reduction of the claim could be made, by the plaintiff, merely for the purpose of giving the justice jurisdiction.”
    3. If the jury believe, from the evidence, that the plaintiff’s demand exceeds one hundred dollars, or that the property claimed for in this suit is worth more than one hundred dollars, and no reason is given in evidence for reducing the claim, the verdict should be for'the defendant.
    Answer: “ Upon this question of jurisdiction, I refer the jury to the general charge and to the answer just given to defendant’s first point, as a substantial answer to this point.”
    The court also charged: * * *

      “ The transcript of the justice is the primary evidence of the character and extent of the plaintiff’s claim. That represents the claim to have been for 107 logs, measuring 20,310 feet, board measure, at $6 per thousand, from which the plaintiff deducts $22, leaving a balance now claimed of $99.86. The plaintiff’s original claim as stated here would, by calculation, exceed the jurisdiction of the justice, but the actual sum demanded was within the jurisdiction. Which is to govern and determine the question of jurisdiction ? If the deduction were made merely for the purpose of giving the justice jurisdiction, without any other consideration, it would be illegal and defeat the plaintiff’s right to recover. But if made in good faith, on account of a payment or a credit due to the defendant, arising out of the transaction, leaving the balance, then claimed, $99.86, it was within the jurisdiction of the justice, and we can proceed to determine the rights of the parties, under the evidence. [The sum demanded is generally the test of jurisdiction; but when the transcript show's that the original claim was greater and exceeded the jurisdiction, I know of no other way than to leave it to the jury to determine, from the transcript of the justice, the declaration filed and the evidence in the cause, whether it was reduced in good faith, or merely as a device to give the justice jurisdiction. If the jury should believe that the original claim, as stated by the justice, was given by the plaintiff, merely as an approximate estimate of the quality and value of the lumber, and the $22 were deducted from that approximate valuation, on account of uncertainty or difference in the estimate or judgment of witnesses who were to be called to testify, and the actual demand was thus reduced and limited, at the institution of the suit, upon the docket of the justice, to the sum of $99.86, as the actual demand of the plaintiff, we do not think that should be regarded as a device to bring the claim within the jurisdiction. But we leave it as a fact for your determination whether the reduction was made in good faith, on account of payments or otherwise, or made solely for the purpose of giving the justice jurisdiction.] If the latter, the plaintiff cannot recover. * * * “As to the value of the logs you will ascertain that from the evidence. You cannot allow the plain tiff more than one hundred dollars, but you may add interest from the date of the judgment by the justice.” * * *
    The verdict was for the plaintiff for $191.65.
    The defendant took a writ of error, and assigned for error, the answers to the points and the charge of the court.

      J. J. Metzgar and S. L. Youngman, for plaintiff in error. —
    When plaintiff’s demand exceeds the statutory limit, a justice of the peace has not jurisdiction: Collins v. Collins, 1 Wright 387; Stroh v. Uhrich, 1 W. & S. 59. It should appear on the face of the justice’s proceedings that he acted within his-jurisdiction: Jones v. Jones, 2 Jones 355.

      H. C. McCormick and 3. W. Watson, for defendant in error.—
    A party may omit to press an item of his claim: Evans v. Hall, 9 Wright 237. It should appear that the sum demanded exceeded $100: Funk v. Ely, 2 P. F. Smith 443.
   The opinion of the court was delivered, May 17th 1873,by

Agnew, J.

The cases upon the subject of the jurisdiction of justices of the peace, under the Act of 1810, when the demand of the plaintiff is reduced by his own abatement below $100, are not wholly free from inconsistency. It seems to be taken for granted in the earlier cases, that a plaintiff can remit a part of his claim, and thereby confer jurisdiction. In Darragh v. Warnock, 1 Penna. R. 21, where a verdict was rendered for $114.99, within six months after the judgment by the justice, this court said: “A plaintiff may, undoubtedly, remit a part of his demand to bring the residue within the jurisdiction of a justice.” The counsel, on hearing the opinion, remitted the excess of the verdict at bar, and the court affirmed the judgment. In Cleaden v. Yeates, 5 Wharton 94, it was said per curiam: “ It never has been doubted that a plaintiff may reduce his demand to the standard of a limited jurisdiction by lopping off the excess.” A stronger case, perhaps, is Hoffman v. Dawson, 1 Jones 280. The plaintiff’s book account was for $410, on which there were credits to the sum of $310.50, and the demand before the justice was $99.50. This, court supported the jurisdiction, on the ground that the actual demand was under $100.

On the other hand, in Stroh v. Uhrich, 1 W. & S. 57, it was decided in very strong terms, that a party cannot confer jurisdiction by giving a credit of $170, of which $100 was on a note or counter-claim. To the same effect is Collins v. Collins, 1 Wright 387. Woodward, J., there remarked: “ If it appear that the plaintiff’s demand really exceeded $100, and that he involved the justice in litigation beyond his jurisdiction,'by remitting the excess, it is of importance to declare against the jurisdiction, else the defendant’s rights may be sacrificed before he is aware of it, as was shown by Judge Rogers, in Stroh v. Uhrich.” Perhaps the best statement of the result of the authorities is that made by Justice Woodward in that case, that when the plaintiff’s claim is reduced below $100, by direct payments, or dealings, which amount to or are admitted to be actual payments, the justice has jurisdiction, but where the claim is not thus reduced by payment, jurisdiction cannot be given by merely remitting a part. And in Evans v. Hall, 9 Wright 235, Justice Thompson, while holding that interest may be waived, because it is a mere incident, states that no part of the principal can be thrown away, in order to give jurisdiction.

Reliance was placed upon these cases in the argument, yet while some analogies may be drawn from them, it is not very clear that they are conclusive as precedents for the case now before us. Here the action was trover for logs claimed by the plaintiff. The Act of 1814, giving jurisdiction to justices in trespass and trover, confers it “ in all cases where the value of the property claimed, or the damages alleged to be sustained, shall not exceed $100.” As the value of goods is a thing having no fixed standard, and depending on circumstances and opinion, it is not easy to see why a plaintiff may not generally fix the value upon his own belief, and ask to recover thereby. ‘If he claim less than others would say is the value, no one is injured but himself. He does not thereby involve the justice in the settlement of demands beyond his jurisdiction, as in Collins v. Collins. Had the plaintiff in this case stated his claim absolutely at the sum of $99.86, without a deduction, it would be difficult to convict the learned judge of error in leaving it to the jury to say whether the plaintiff’s demand was made in good faith, and not merely to give jurisdiction. Though the value might seem to be greater, yet an absolute demand without deduction, for less than $100, may be really in good faith, allowing for the state of the property, the attending circumstances, and the difference of opinions, or other causes influencing the question of value. But in this case the demand was stated on the docket of the justice in these words : “ Plaintiff claims the value of one hundred and seven saw logs, measuring twenty thousand three hundred and ten feet, board measure, at $6 per thousand, from which he deducts $22, leaving a balance now claimed of $99.86.” Certainly on its face this wears the appearance of a premeditated remission to give jurisdiction. It is not an actual credit, but a mere deduction, without a reason given at the .time, or on the trial, why the deduction was made. So far as the evidence discloses, it was a mere throwing off of a part of the value. The logs, at the rate stated by the plaintiff, would have brought $121.86. What makes the case stronger against the plaintiff is, that he testified at the trial that the logs were worth more than he claimed before the justice. In a question of value depending on good faith, we might hesitate to reverse, after a finding of the jury of a sum within the justice’s jurisdiction. But we are precluded from even this concession to good faith by the binding instruction of the judge to the jury, that .they could not allow more than $100. This left the jury in uncertainty. They could not find a sum over $100, for the instruction not to do so was absolute and unqualified; and they could not find for the defendant, if the evidence showed that the plaintiff was entitled to recover. Their only escape was a special verdict, had their ingenuity taught them to perceive it, in which they should find the plaintiff’s demand over $100 ; but for that reason they find for the defendant, on the ground of a want of jurisdiction. In view of the statement of the demand in the transcript and of the evidence in the case, it seems to us the plaintiff’s true demand, as measured, by the value of the logs, exceeded $100, and, therefore, that the court erred in submitting the question of jurisdiction in the manner it was submitted to the jury. The verdict itself, shows plainly that the jury, to escape a finding according to actual value, and to keep within the jurisdiction, found precisely the $99.86 stated in'the transcript, with interest to the time of the verdict.

Judgment reversed.


text:
    Haffey et ux. versus Carey et al.

    1. A wife may mortgage her estate to secure future as well as present indebtedness of her husband.
    3. The provision of the Married Woman’s Act (April 11th 1848), that her property shall not be sold, &c., by her husband without her written consent acknowledged before a judge, &c., does not apply where the husband and wife unite in the sale, &c.; the law as to that is as before the Act of 1848.
    , 3. Moore v. Cornell, 18 P. F. Smith 320, explained.
    March 27th 1873.
    Before Read, O. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of McKean county: No. 265, to January Term 1872.
    This was a scire facias sur mortgage, issued January 18th 1871, by Richard L. Carey and Theodore H. Whittlesey against John K. Haffey and Diantha E. his wife.
    On the 31st of March 1869, John K. Haffey and Diantha E. his wife, the defendants, executed a mortgage to the plaintiffs on land mentioned in the mortgage in the sum of $1000, conditioned “ that if the parties of the first part shall and will well and truly pay all demands and indebtedness contracted, or that may hereafter be contracted for goods and merchandise to be sold by the said Haffey, as agent of the De Golier store and grist-mill, in Bradford township, at De Golier post-office and railroad station, and merchandise furnished by the parties of the second part, or guarantied by them, then these presents shall become void,” &c.
    The mortgage was duly acknowledged by husband and wife, with a separate examination of the wife, &c. On the trial, December 19th 1871, before Williams, P. J., the plaintiffs gave the mortgage in evidence and rested.
    The defendant, Mrs. Haffey, offered in evidence a deed to herself for the land described in the mortgage, for the purpose of showing that the land was hers, alleging that she could not encumber her separate real estate to secure a future liability of her husband.
    The evidence was objected to by the plaintiffs, rejected by the court and a bill of exceptions sealed for the defendant.
    The verdict was for the plaintiffs for $998.09.
    The defendants took a writ of error and assigned for error the rejection of the offer of their evidence.
    The only question in the ease was, the power of a married woman to bind her real estate by a mortgage executed jointly with her husband for a contemplated future liability by him.

      J. 0. Baelcus and R. Brown, for plaintiffs in error,
    cited Wright v. Brown, 8 Wright 224 ; Wilson v. Shoenberger, 7 Casey 295; Magaw v. Stevenson, 1 Grant 402; also, Married Woman’s Act, April 11th 1848, sect. 6, Pamph. L. 536, 2 Br. Purd. 1005, pl. 13.

      R. I). Hamlin, for defendants in error,
    cited Ter-Hoven v. Kerns, 2 Barr 96; Stewart v. Stocker, 1 Watts 140; Moroney’s Appeal, 12 Harris 372; Lytle’s Appeal, 12 Casey 121; Black v. Galaway, 12 Harris 19; Miner v. Graham, Id. 491; Shinn v. Holmes, 1 Casey 142; Woodward v. Wilson, 18 P. F. Smith 208.
   The opinion of the court was delivered, May 17th 1873, by

Sharswood, J.

It is well settled that a married woman may mortgage her estate for her husband’s benefit, or to secure the payment of his debts: Hoover v. The Samaritan Society, 4 Whart. 445; Black v. Galaway, 12 Harris 19; Miner v. Graham, Id. 491; Lytle’s Appeal, 12 Casey 131. This being so, there is no reason why she may not do so to secure future as well as existing indebtedness : Lyle v. Ducomb, 5 Binn. 585. Indeed, in point of policy, there are considerations in favor of the latter which cannot be urged for the former. The wife’s property being thus pledged to secure credit for her husband may enable him to engage in business, and by his enterprise and industry make a good living both for him and her and their family. Nor is it necessary that the provision of the Act of April 11th 1848, Pamph. L. 538, as to the acknowledgment of the mortgage should be observed. An acknowledgment in conformity to the law, before that, to enable a married woman to pass her estate, is sufficient, as has been more than once decided, and confirmed by the Act of Assembly of April 9th 1849, Pamph. L, 526; April 18th 1853, Id. 573; April 11th 1856, Id. 315; Miner v. Graham, 12 Harris 491; Shinn v. Holmes, 1 Casey 142; Stoops v. Blackford, 3 Id. 213. It was not intended in Moore v. Cornell, 18 P. F. Smith 320, to depart in the least from these authorities, or to hold that in an assignment of a wife’s mortgage, by husband and wife, it was necessary that the acknowledgment should be in any other form or before any other officer than is required in any other case where the contract of a married woman in realty is to be bound or transferred. The Act of April 11th 1848 provides that the property of a married woman shall not be sold, conveyed, mortgaged, transferred, or in any other manner encumbered by her husband, without her written consent first had and obtained, and duly acknowledged before one of the judges of the Court of Common Pleas of this Commonwealth that such consent was not the result of coercion on the part of her said husband, but that the same was voluntarily given and of her own free will. This provision has no application, whether in the transfer of real and personal estate of the wife, when the husband and wife unite in the execution of the transfer, but the law remains as it stood before the passage of the Act of 1848.

Judgment affirmed.


author: Mbrcur, J.

text:
    Warren Borough versus Daum.
    1. A borough council resolved to levy tax sufficient to pay each person who should enlist, a bounty not exceeding $300. This was not an offer to pay a bounty to volunteers.
    2. The resolution gave no right to any one to enlist and demand the bounty.
    3. The plaintiff enlisted in Virginia in 1864 as a veteran; on the muster-roll his place of residence was stated to be “ Warren, &e.” Held, that the Act of May 1st 1866, enacting that the place of residence named in the muster-rolls shall be considered the place of credit, did not create an obligation against Warren, if one did not exist before.
    4. The re-enlistment of itself was not notice to the defendant.
    5. To establish a contract by acceptance of a proposition, it must appear that the one making it was notified of the acceptance.

      March. 26th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: Of January Term 1872, No. 208.
    This was an action of assumpsit, brought January 24th 1871, by Andy Daum to the use of C. L. Douglass, against the borough tiof Warren.
    The claim of the plaintiff was for the bounty of $300, offered by the borough of Warren for veterans enlisting in the United States service in the war of the rebellion, and credited to that borough.
    The cause'was tried December 12th 1871, before Yincent, J.
    The plaintiff gave in evidence a resolution of the borough council, passed February 11th 1864, to levy a tax sufficient to pay “ a bounty not exceeding $300 ” to each person who should enlist to the credit of the borough of Warren:
    Also, Resolution of February 13th, that the borough issue her bonds for $10,000 if necessary, subject to the condition that they should be a valid obligation against the borough upon the passage of an act of the legislature, authorizing the borough to provide for their redemption and repayment.
    Also, certified copy of muster and descriptive roll of re-enlistments from the Adjutant General’s Office at Harrisburg, viz.:
    “ Muster-in, bounty, advance-pay, and descriptive roll of a detachment of United States veteran volunteers, re-enlisted by Captain Nathaniel Payne, company “I,” for the 12th Regiment of Pennsylvania cavalry volunteers, stationed at Martins-burg, Ya., re-enlisted pursuant to general order 191, &c.
    “Name, Andy Daum, rank, private, born Clarion county, Pennsylvania, age 21 years, occupation farmer, enlisted February 29th 1864, at Martinsburg, Ya., by Captain George W. Henrie for three years,* * * mustered into service February 29th 1864, .at Martinsburg, Ya. * * *
    “ Date of first muster March 1st 1862. Residence, Warren, Warren county, Pennsylvania, Nineteenth district of Pennsylvania.
    “ Re-mustered as veteran volunteers under general orders 191, &c.”
    D. Titus testified: “ I was major of the 12th cavalry during the rebellion, and commanded the regiment. In February 1864, I wrote to Judge Annett, burgess of Warren, asking whether the borough was paying bounties; the judge informed me the borough was paying $300 bounty; there was a strife for volunteers for various localities; I wanted the Warren borough men to be credited to the borough; I encouraged our men to enlist; bounties were to be paid in bonds; the fact that the borough was paying bounties was communicated to all the men; my son also worked with the soldiers for same purpose; I don’t recollect talking with Daum particularly; he once lived in Warren; he was in company K; the soldiers in that company were mostly from Warren county.”
    For the defendant, the clerk of the borough council in 1864, testified that he had the whole charge of the enlistment matters of the councils; the evidence of enlistment and re-enlistment was furnished him; he never had any evidence of Daum’s enlistment for the benefit of the borough; the quota was filled without him; he was never credited to the borough to the knowledge of witness; no personal application was ever made by Daum; witness had receipts from the provost marshal for all credits for the borough; no credit for a man named Daum.
    The court charged :—
    “ The right of the plaintiff in this ease to recover depends entirely upon whether or not a valid contract exists between him and the defendant.
    “ It is not denied that enlistment as a volunteer for a particular locality in consideration of a promise to pay bounty by that locality, raises an obligation to pay the bounty, if the volunteer was duly credited; but it is contended by the defendant that it ought not to pay, and is hot obliged to pay, unless the volunteer was duly credited to it upon its quota, even if the re-enlistment was made upon its promise to pay. * * *

      “ [This evidence clearly shows that the defendant as early as February 11th 1864, offered a bounty to volunteers to fill its quota under the calls of the government for men.] The terms of payment of this bounty were not finally settled until the 22d of February 1864.”
    The judge, after recapitulating the evidence, proceeded:—
    “ [If you believe that Daum re-enlisted to the credit of the defendant, under the belief and in the consideration that if he did so he would receive a bounty of $300 from it, and that the re-enlistment was so made as to entitle the defendant to that credit, and that it failed to get that credit, if it did fail, by no neglect of Daum, but by that of the officers of the United States charged with such duties, we think the failure ought not to prevent the plaintiff’s recovering in this suit.]
    “After having re-enlisted, as the evidence shows he did, he could not change it without the consent of the military authorities of the United States, and having thus put it out of his power to get a bounty from another place, he ought not to be deprived of his bounty from the district for which he did re-enlist if the enlistment was on a legal consideration, such as we have stated, because somebody whose duty it was failed to give the proper credit for it.
    “ [There is nothing before us to show that it was the duty of Daum to give the defendant notice and procure the proper credit. So far as we know, notice from him would have been an entire nullity, and the defendant would not have been obliged to give it any attention.]
    “ It is in evidence that other localities were seeking volunteers to fill their quotas and paying bounties in cash, and you may infer from Major Titus’s evidence that the fact was known in his regiment. [In the absence of any proof that Daum re-enlisted for any other place, taken with that of his having enlisted to credit of defendant, if you so believe, we may fairly infer that he had some motive in so doing, and judging of his human nature by that of other human beings, we may infer that he did so for a bounty to be paid for by some locality.] In fact, the law of 1866 says he must be so understood, fairly construed, but his intention on this subject must have a direct connection with the offer of the bounty to enable him to recover in this suit.”
    The verdict was for the plaintiff for $440.15.
    The defendant took out a writ of error and assigned the parts of the charge in brackets for error.

      Brown Stone, for plaintiff in error.
    There was no contract between plaintiff and defendant; this was necessary for a recovery: Washington Co. v. Berwick, 6 P. F. Smith 466 ; Brecknock Sch. Dist. v. Frankhouser, 8 Id. 380. There must be reciprocal assent to a definite proposition: Story on Contracts 373. The resolution of February 11th 1864, was but preparation for an offer: Foulke v. West Bethlehem, 3 P. F. Smith 223. The.party making a proposition must be notified of acceptance: Emerson v. Graff, 5 Casey 358; 2 Parsons on Contracts 669. The voluntary compliance with the terms offered does not bind the person offering : Story on Contracts 384; Johnston v. Fessler, 7 Watts 48. Daum should have informed the borough of his enlistment: Vyse v. Wakefield, 6 M. & W. 452; Blodgett v. Springfield, 43 Vermont 626.

      F. I). Beeves, for defendant in error.
    A contract is to be interpreted by the circumstances under which it is made: Phila. Ins. Co. v. American Ins. Co., 11 Harris 65 ; Mifflin v. Learn, 3 P. F. Smith 184.
   The opinion of the court was delivered, May 17th 1873, by

Mbrcur, J.

The learned judge put this case upon the true ground when he said to the jury, “ the right of the plaintiff to recover depends entirely upon whether or not a valid contract exists between him and the defendant.” Such being the law of the case, the well recognised rules of evidence necessary to.establish a contract, must be applied.

We are unable to discover in the resolution of 11th of February 1864, any evidence that the borough of Warren offered a bounty to volunteers. It merely declared that the authorities would levy a tax sufficient for that general purpose. It was an act between the borough authorities and the tax-payers only. It was no offer to volunteers. It is true, it contemplated that the fund should subsequently be used in procuring volunteers at such prices as might be agreed upon, not exceeding three hundred dollars. It gave no one any right to say, I will enlist, and you shall pay me three hundred dollars. That the authorities so understood it, is shown by the fact that upon each, the 13th and 22d of February 1864, they passed a resolution to issue bonds for the same purpose. The passage of these resolutions was the first step towards putting the borough in a condition to justify it in offering bounties. It was providing the funds in advance of their appropriation. The making of contracts with persons to enlist, is entirely a different matter. To hold that this resolution offered a bounty to volunteers, is to extend it beyond its true scope and meaning. It did not, as was said in Foulke v. West Bethlehem Township, 3 P. F. Smith 221, ex proprio vigore, impose a liability upon the borough to pay any bounty. The first assignment of error is therefore sustained.

The other assignments of error may be considered together.

It appears by the muster-roll that when Daum was mustered into service on the 29th February 1864, at Martinsburg, Va., he declared his residence tobe “Warren, Warren county, Pennsylvania.” There is no evidence that he, at the time of his re-enlistment, said or did anything indicating an intention to enlist to help fill the quota of the defendant, or to be credited thereto. The evidence is that he first gave notice of any such claim a short time before the commencement of this suit, which was in January 1871. It is true, the second section of the Act of May 1st 1866, Pamph. L. 114, provides that “the place'of residence named in the reenlistment and muster-in rolls, shall, in the absence of other evidence, be considered the place of credit.” This act, passed .more than two years after his re-enlistment,-throws no light upon his actual intention at the time of said re-enlistment. If the transaction, at the time, lacked the ingredients essentially necessary to create the contract relation, this subsequent Act of Assembly could not create one which would be obligatory upon the parties.

The learned judge thought the jury, judging of Daum’s human nature by that of other human beings, might infer that he re-enlisted for a bounty, to be paid by some locality, and in the absence of any evidence that he re-enlisted for any other place, they might infer he enlisted to the credit of the Borough of Warren. This is carrying the doctrine of presumption too far. It is building upon a too uncertain foundation. The result is, that the superstructure is as shadowy as the base upon which it rests. With much stronger probability, it might be said, that the reasonable and ordinary workings of the human mind would have induced him to have informed the defendant within less than six years, of some fact indicating a real or pretended claim.

The evidence shows that the borough authorities never made any contract with Daum personally; that he did not notify them that he would accept, or had accepted the general offer which they had made; they had no notice of his enlistment; they filled their quotas with other men, and never received any credit or allowance for Daum. The act of his re-enlistment, remote from the defendant below, did not carry any notice of itself. Upon general principles, when one seeks to establish a contract predicated of a general proposal 'made by the other party, he must show that the one making the proposal was duly notified of the acceptance thereof. Notice of this acceptance is necessary, even when a distinct proposition is made by one to another: Emerson v. Graff, 5 Casey 358. We see nothing in'this case to take it out of the general rule: Washington County v. Berwick, 6 P. F. Smith 466; Brecknock School District v. Frankhouser, 8 Id. 380.

The errors are sustained. Judgment reversed.