text:
    Seipel versus International Life Insurance and Trust Company.
    Where a party to a contract by his acts or default renders the performance of the contract impossible, or if not wholly impossible yet imposes such conditions upon its execution as to render its performance practically impossible, the other party to the contract may treat the same as rescinded.
    March 2d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Common Pleas of Lehigh county: Of January Term 1876, No. 201.
    Assumpsit by Martin A. Seipel against the International Life Insurance and Trust Company of New Jersey.
    The case was thus. In November 1871, the defendant company, which was incorporated April 22d 1868 by the legislature of New Jersey, established an agency in Allentown, Pennsylvania. The plaintiff sold the defendant a mortgage on a property in New Jersey for $7000, and received its check for the purchase-money. At the same time, November 25th 1871, Seipel gave the company $2500 and entered into the following agreement:—
    “ The International Life Insurance and Trust Company of Jersey City, hereby acknowledge that they have this day had and received of and from Martin A. Seipel, of the city of Allentown, county of Lehigh and state of Pennsylvania, the sum of $2500, being the first premiums upon acceptable life risks, Which, for certain good causes and considerations, the said Martin A. Seipel hereby agrees and covenants to procure and place and insure in the said company, within the period of two years from the date hereof. The said The International Life Insurance and Trust Company, hereby agrees to furnish policies for the said life risks, the first premiums amounting in the aggregate to $2500, whenever the said Seipel shall provide and place the said acceptable risks, within the aforesaid period of two years from the'date hereof. Witness our hands this 25th day of November A. d. 1871.”
    In pursuance of this agreement the plaintiff proceeded and placed in the company life risks, the first premiums of which amounted to $466.98. While so engaged and within a year after the execution of the above agreement, the company quitted the life insurance business and sold out and transferred its entire insurance business to the United States Life Insurance Company of New York, discontinued its agencies, notified its policy holders to return their policies and accept new ones in the company to which the transfer had been made, and gave notice to the plaintiff and the general public that after October 15th 1872, its management would be “ exclusively ” directed to the trust and banking business.
    Plaintiff thereupon treated the contract as rescinded and brought this suit to recover the balance of his money in the hands of defendant. Under the Act of May 14th 1874 the case was submitted to a referee, before whom it was contended, on behalf of the plaintiff, that by the above-mentioned acts the company had violated the contract and that therefore plaintiff had a right to rescind it and recover the balance due him.
    The defence was that the company had reserved the right to fill contracts made prior to the date of the transfer, and that consequently the plaintiff could not recover.
    The referee was of opinion that although these acts and default of the defendant placed the plaintiff in a worse’ position, this was not sufficient; that performance must be rendered entirely impossible, and that defendant had provided against this impossibility by reserving the right to issue policies of its own to fill contracts made prior to the transfer; and further, that the plaintiff could not rescind without tendering back the purchase-money of the mortgage, as the contract so far as the sale of the mortgage and the payment of the money thereon was executed, and the balance of the contract was executory, and the plaintiff could not avail himself of the first part and be entitled to rescind the latter. He therefore found for the defendant.
    This finding of the referee was, inter alia, the error assigned by the plaintiff, who brought this writ.

      C. J. Erdman and Edward Earvey, for plaintiff in error
    When a party enters into an" agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he will not, of his own motion, do anything to put an end to that state of circumstances, under which alone the agreement can be operative: 1 Chitty on Cont. 89, ed. of 1874; 2 Parsons on Cont. 676; Broom’s Leg. Maxims 214; Stirling v. Maitland & Boyd, 117 E. C. L. R. 840; Tasker v. Shepherd, 6 H. & N. 581; Inchbald v. Western Neilgherry C. T. & C. P. Co., 17 C. B. N. S. 733 ; Kugler v. Wiseman, 20 Ohio 361; Crossgrove v. Himmelrich, 4 P. F. Smith 203; 1 Addison on Cont. 476; § 326 ; Id. 560, § 396; West v. Blakeway, 2 M. & G. 751; Dubois v. Del. & Hud. Canal Co., 4 Wend. 285; Planche v. Colburn et al., 8 Bing. 14; M’Intyre et al. v. Belcher, 14 C. B. N. S. 654; Robson & Sharpe v. Drummond, 2 B. & Ad. 303.

      R. E. Wright Son, for defendant in error.
    It is an elementary principle of the law of contracts, that he who comes into court claiming to recover that which is to be his only upon the performance by him of certain conditions, cannot move to the enforcement of the covenant upon which he depends without first proving that he has performed the conditions precedent, or that performance has been waived, or that the party who was entitled to insist on performance has prevented or made it impossible: Warren v. Wheeler, 21 Maine 484; Norris v. Johnston, 5 Barr 287.
    In the case at bar there is no pretence of a readiness, an ability or an offer to perform the conditions precedent to the plaintiff’s right to recover, nor is there even an allegation that the defendant was not at all times ready and willing and able to issue policies of insurance upon the presentation of the risks. It must be impossibility, not difficulty, that will excuse a party from the performance of a contract: Huling v. Craig, Addison’s Rep. 342; Chitty on Cont. 1069; Gilpins v. Consequa, P. C. C. R. 184; Youqua v. Nixon, Id. 221; Tufnell v. Constable, 7 A. & E. 798; Shaw v. Lewistown Turnpike Co., 2 P. & W. 454; Martin v. Schoenberger, 8 W. & S. 368; Alexander v. Hoffman, 5 Id. 382 : Hall v. Rupley, 10 Barr 231.
    March 12th 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

But a single question presents itself for consideration in this case; that question is, did the company defendant, by its own act, render the performance of the contract with Martin A. Seipel impossible, or, if not wholly impossible, were such new circumstances and conditions thrown around and imposed upon its execution, by the company, as warranted him in treating it as rescinded? A statement of the facts will, resolve this matter.

The defendant was a New Jersey corporation; it had complied with the laws of Pennsylvania and established an agency at Allentown, and it had, therefore, the power to solicit and take risks in this Commonwealth. Seipel was a citizen of Allentown; he paid to the company $2500, which it agreed should be treated as first premiums, paid in advance, on life risks, of an acceptable character, to that amount, and which Seipel was empowered to present, within two years from the date of the contract, and which the company was bound to accept. The plaintiff was thus constituted an agent of this corporation; for it was only by virtue of such power that he could comply with the terms of the contract; and, on the other hand, the defendant could only accept the risks offered by the plaintiff by virtue of the power it acquired by a compliance with the statutes of this state. When, therefore, it expressed its determination to abandon the business of life insurance, and at the same time withdrew its agencies from Pennsylvania, it thereby not only disqualified itself for receiving risks, but also rendered it impossible for Seipel to solicit or procure them. For, in order to act even as a subordinate agent he must have an appointment, from the general agent for the state, duly certified by the auditor-general. Now, what signified, the fact that the defendant reserved the right to issue policies to fulfil contracts made previously to the time of the abandonment of its general insurance business ? It had, by its own act, put an end to the plaintiff’s power to procure risks within his own state, the place of the contract, and hence its reservation did him no good. True, he might have gone into New Jersey and canvassed that state for risks; but, in the first place, it would be inequitable to compel him to accept a contract which had been mutilated by the cutting out of his own state, the place where both he and the company had intended he should procure the necessary risks to pay him back the money which he had advanced; and, in the second place, it would he rowing against tide to attempt to procure risks, even' in New Jersey, for a company which had forestalled such attempt by announcing to the world that it had abandoned the insurance business. A more effectual method for blocking the way to the performance of a contract than that presented in the case in hand can scarcely be conceived, and we are not willing to agree that the party causing such obstruction should be permitted to profit thereby. It was also a mistake to suppose that a tender of the money, paid to the plaintiff for the mortgage sold by him to it, was a condition precedent to the plaintiff’s right of action. That transaction does not in any way enter into the contract before us; the defendant, for reasons of its own, took especial care to make these transactions separate and distinct. Apart, however, from this, the default in performance, as we have shown, results from the act of the defendant, and it is upon this default, which amounts to a rescission, that the plaintiff’s action is founded; he has, therefore, no precedent conditions to perform.

And now, March 12th 1877, the judgment upon the award is reversed and set aside, and judgment is now entered for the plaintiff, Martin A. Seipel, and against the defendant*, the International Life Insurance and Trust Co. of New Jersey, in the sum of $243-1.58, with costs of suit. And it is ordered that the records be transmitted to the Court of Common Pleas of Lehigh county for execution.

STATEMENT.

Amount contract November 25th 1871, due November 25th 1873 . §2500.00

Less payment.......... 464.93

§2033.07

Interest............401.51

§2434.58


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Clauser’s Estate. Huy’s Appeal.
    1. “Where an executor did not deposit the money of the estate in bank, but used it as he wanted it, in his own business : Held, that he was chargeable with interest on balances in his hands.
    2. Held, however, that he was not chargeable with interest on a sum improperly paid by him as counsel fees, for which he was refused credit in his account.
    3. Compensation is allowed to trustees as a reward for the faithful execution of the trust.
    4. “Where an executor misappropriated funds of the estate by paying a large sum to his private counsel, in litigation which was for the benefit of his son, the residuary legatee, and not of the estate, and by paying another large sum on a bond upon which he was principal and his testator was surety, pretending that it was a debt of the testator’s, and both credits were struck out of his account: Held, that he had forfeited his right to commissions; Held, that he should pay three-fourths of the costs of auditing his account.
    March 2d 1877.
    Before Aisneav, O. J., Sharsavood, Mercur, Gordon, Paxson and Woodavard, JJ.
    Appeal from a decree of the Orphans’ Court of Berks county: Of January Term, 1877, No. 171.
    Tobias Clauser died on February 25th 1868. By his Avill he gave to two of his nephews, Mordecai F. and George W. Huy, and to his niece, Catharine Huy (afterwards Fisher), $1000 each. He gave his homestead to his wife, and after her death to his nepherv, Tobias Clauser, and made the latter his residuary legatee. He appointed his brother, Daniel Clauser, and Jesse G. HaAvlev, his executors.
    Separate accounts Avere filed by the executors, apparently Avithout objection. The questions all arose upon the account filed by Clauser, who Avas the acting executor.
    The auditor to whom the accounts were referred refused to surT charge Clauser Avith interest on balances retained by him, to strike out his claim for commissions and to impose upon him a part, at least, of the costs of auditing his account. The facts upon which these questions arose are given below in the opinion of the court. The court below made a decree confirming the report, from which Mordecai E. and George W. Huy and Catharine Eisher appealed. The second, third and fourth assignments of error raised these three questions respectively.

      A. G. Green, for the appellants.
    A trustee who mixes the trust funds with his own in his business is chargeable with interest: Robinett’s Appeal, 12 Casey 174; Wistar’s Appeal, 4 P. F. Smith 60; Parker’s Estate, 14 Id. 307; Norris’s Appeal, 21 Id. 106.
    A faithless trustee, who attempts to defraud the estate under his charge, earns no commissions and should be compelled to pay the costs of auditing his account: Swartswalter’s Account, 4 Watts 77 ; Dyott’s Estate, 2 W. & S. 557; Berryhill’s Admr’s Appeal, 11 Casey 245; Gable’s Appeal, 12 Id. 395.

      J. S. Livingood, for Daniel Olauser.
    An executor may retain a reasonable amount to pay expenses and claims, without being liable for interest on it: Parker’s Estate, 14 P. F. Smith 307; Davis’s Appeal, 11 Harris 206; Yoder’s Appeal, 9 Wright 394.
    There was no evidence that Clauser was unfaithful to the trust.
    May 7th 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

Tobias Clauser died on the 25th of February 1868. His brother, Daniel Clauser, and Jesse G. Hawley, Esq., were his executors, and with the apparent consent of all parties interested, they filed separate accounts of'the portions of the estate they had respectively administered. While Mr. Hawley received large amounts of money, he promptly transferred the greater proportion of the sums paid to him to his co-executor. The auditor reported upon the accounts referred to him separately, and the legatees by whom this appeal was taken have acquiesced in this report. The significant questions requiring a review of the decision of the Orphans’ Court, arise upon the account of Daniel Clauser. An error was inadvertently made by the auditor to the prejudice of Mr. Hawley. In stating the accounts a balance was found in the hands of Daniel Clauser of $2915.56. In a corrected statement, dated the 12th of February 1877, Mr. Wanner, the auditor, has certified that the actual amount of the balance which should have been found was $3171.91. The balance reported in the hands of Mr. Hawley was $3094.01. The corrected statement shows that this should have been reduced to $2837.66. As he had paid $2748.74 out of this balance, the report showed Mr. Hawley to be still liable for the sum of $345.27. Deducting $256.35, the sum erroneously charged to him, his actual liability is reduced to $88.92. This error can be readily corrected in the supplementary report which will be required for the final adjustment of the estate.

By the administration account which Daniel Clauser filed, it appears that he had in his hands at the date of Tobias Clauser’s death, funds of the estate amounting to $1761.72, which consisted of his own notes to the testator. From the 19th of March 1868 to the 30th of March 1870, he received $6547.95. The account set out a credit as of the 3d of April 1869, of $1110 for the one-half of the principal and interest of a bond paid to Tobias Koch. The auditor found, however, upon testimony entirely adequate, that the bond had been given for money borrowed by Daniel Clauser himself, and that the testator had executed it only as surety. The credit was accordingly stricken out. The auditor also struck out a credit taken on the 28th of December 1868, for $1000 paid for fees of counsel in the trial of an issue involving the validity of the testator’s will. Various small sums, amounting altogether to $91, were credited to the accountant between the 18th of December 1868, and the 26th of December 1869. The first significant payment for which he was legitimately entitled to credit, was to M. Huy on the 21st of July 1871, and amounted to $1496.76. Other payments were made subsequently from time to time, but large sums were retained by him throughout. Upon the balances thus retained during the progress of the administration and down to the time of the credit, the appellants insisted before the auditor and in the Orphans’ Court that interest should be surcharged. The refusal of this claim by the court is the subject of the second assignment of error.

That the money of the estate was used by Daniel Clauser as if it had been his own, has not been contested. His own admissions, indeed, established the fact conclusively. He said in his testimony before the auditor, “ I had no money of the estate deposited in bank in the name of the estate. The money I had I deposited and used it when I wanted it. The money I owed the estate I used in my business, supposing that I would be entitled to a portion of it for compensation as executor.” Taken in its connection with the other circumstances disclosed by the report of the auditor, the use of the trust funds in his possession makes the case of the accountant peculiarly and grossly flagrant. There is no recognised precedent and no existing rule of law under which, in such a case, responsibility for interest can be evaded. “All refinements,” it is said in Lewin on Trusts 327, “ have been swept away, and the rule is now universal that, whether the executor was solvent or insolvent, whether the money was part of the general assets or specifically bequeathed, whether lent upon security or employed in the way of trade, the executor shall account for the utmost actual profits of the testator’s estate.” This language was quoted with approbation by Mr. Justice Read in Robinett’s Appeal, 12 Casey 174. It was there decided that if an administratrix mix the funds of the estate with her own money and employ them both in trade, the parties in interest may at their option insist on having a proportionate part of the profits, or receive interest on the amount of the trust funds so .employed. This was in accordance with the doctrine of the English Chancery, of which it was said that every reason that has been urged in its behalf elsewhere is applicable in Pennsylvania. Robinett’s Appeal was twice argued, and appears to have been carefully and deliberately considered. It had previously been held in Landis v. Scott, 8 Casey 495, that if an agent or trustee, in consequence of the pendency of legal proceedings between his principals, is prevented from paying over the moneys in his hands, it is his duty to invest the fund, and, in default, he is chargeable with interest. In Bruner’s Appeal, 7 P. F. Smith 46, an executor who had settled in 1861 an account which, in consequence of pending exceptions, was not confirmed until 1865, and who had failed to invest the balance due the estate, was charged with interest for the whole interval. And in Norris’s Appeal, 21 P. F. Smith 106, it was held that the investment of trust funds in the trustee’s individual name is concealment, and that where a trustee speculates with trust funds, he may be held to profits if the investment has been successful, and to interest if it has been disastrous. In the present case, the accountant must be surcharged with interest, and for that purpose it will be the duty of the Orphans’ Court 'to refer the report to the former or another auditor to ascertain the proper amount by making the necessary calculations, which should be carried down to the date of the supplementary report. The surcharge, however, should not include interest on the $1000 paid to counsel for the trial of the issue devisavit vel non. The principal sum was justly stricken from the accountant’s credits, but the presumption that he acted in good faith may be drawn from the fact that the money was paid to and received by able and reputable counsel.

In the third assignment of error, the question is raised as to the accountant’s right to commissions, the allowance of which by the auditor the court confirmed. Compensation is allowed to trustees as the reward for a faithful execution of the trust confided to them; but the right to it is destroyed by sloth, ignorance, reckless confusion and procrastinating delay on the part of the trustees, by which the interest of the cestui que trust is impaired: Stehman’s AjDpeal, 5 Barr 418. Here, there was more than sloth, ignorance, confusion and delay. Not only was the use of the trust funds for the personal purposes of the accountant admitted, but the record proves mal-appropriation in the payment of $1000 to his private counsel, and the deliberate attempt to fasten on the estate a liability for one-half of his personal debt to Tobias Koch. In Swartswalter’s Account, 4 Watts 77, an administrator pendente lite had “ trumped up,” in the language of Judge Kennedy, an unfounded claim against the estate he was administering, by which he attempted to appropriate the whole of it, with the exception of about $150, to his own use. His claim for commissions was disallowed, the court holding that to entitle trustees to compensation it was requisite that their duties should have been performed at least with common honesty. Misconduct in a trustee is always followed by a loss of commissions, especially when it is wilful: Thompson, J., in Berry hill’s Administratrix’s Appeal, 11 Casey 245. The auditor to whom the record will be referred will strike from his account all credits for commissions allowed to Daniel Clauser.

In view of the facts that have been recited, authority can scarcely be required to prove that the costs before the auditor, except so much as would cover the usual and formal expenses of a distribution, should be borne by the accountant. Gable’s Appeal, 12 Casey 395, may, however, be referred to, where it was held that an attempt on the part of executors to appropriate to themselves the interest on the trust funds which accrued after the filing of the account, was a sufficient reason for charging them individually with the costs of an audit. The auditor in the supplementary report will direct the payment of three-fourths of the costs that accrued before the former auditor and the entire costs of the hearing before himself, by the accountant, Daniel Clauser, and the payment of the remaining one-fourth of the costs of the former audit by the testator’s estate.

Other questions were raised by the exceptions filed in the Orphans’ Court, but they have not been so presented in the assignments of error as to make them subject to review.

The decree is reversed at the costs of the appellee, Daniel Clauser, and it is ordered that the record be remitted for proceedings by the Orphans’ Court in accordance with-the directions contained in this opinion.


author: Chief Justice Agnew

text:
    Wilkesbarre City Hospital versus County of Luzerne.
    The Act of 21st May 1874, enabling a private incorporated hospital to make requisitions upon a county for the payment of its charges, for the support of patients under its treatment, even though they be paupers, is an appropriation of money by the county to the corporation, and is prohibited by sect. 7, art. 9, of the constitution.
    March 5th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Common Pleas of Luzerne county:. Of January Term 1877, No. 159.
    This was a case stated, the terms of which, as set forth in the opinion of the court below, were substantially as follows:—
    “ The Wilkesbarre City Hospital is a charitable institution, organized and incorporated for the reception and treatment of sick and injured citizens of Pennsylvania, without regard to creed, sex, or race. It is without endowment fund, or other means of support than voluntary contributions and the pay received from such patients under treatment as possess the means of payment. It is located in the centre of one of the large coal fields of Pennsylvania, in a city of not less than twenty thousand inhabitants, and many of the patients are persons suffering from accidents incident to mining — persons whose skill and labor have added largely to the taxable wealth and resources of the county. The institution has been humanely, judiciously and economically managed, and through its ministrations to the sick and suffering, and to the wants of the destitute, has doubtless relieved the county and the adjoining poor districts of liabilities which they would otherwise have incurred. The hospital is not owned or controlled by any religious sect or denomination, and the land appurtenant to it is owned by the corporation in fee simple, and is free from encumbrance.
    “ On the 21st of May 1874, at the first session after the adoption of the new constitution, the legislature passed an act to provide for the support, out of the county treasury, of the sick and injured poor, when under treatment in hospitals in certain cities and boroughs : Pamph. L. 220, Purd. Dig. 1882, § 1, &c. The 1st section provides that ‘ it shall be lawful for the managers or trustees of any hospital for the cure of the sick and injured, which is now or may hereafter be established and duly incorporated, in any city or borough of this Commonwealth, containing a population of not less than twenty thousand inhabitants, to make requisition, quarterly, upon the commissioners of the county in which such hospital may be situated, for the support of such poor patients under treatment in such hospital, as are unable to pay for their treatment; for which requisitions the said commissioners shall grant orders upon the treasurer of the county, who shall pay the same to the treasurer of such hospital.’ The second section limits the amount to be allowed for the treatment of a patient to a sum not exceeding $1 per day, and provides that no greater sum than $5000 shall be paid out of the county treasury to any such hospital in one year.
    “ On the 17th day of July 1876, in accordance with the provisions of this Act of Assembly, the managers of the hospital made a requisition upon the commissioners of Luzerne county, for the payment of $1205 for the support of certain poor patients in the hospital, who are and were unable to pay for their treatment; this sum being for the quarter ending July 1st 1876, and being at a rate not exceeding $1 per day for each of said poor patients so supported.
    “ The commissioners refused to grant an order upon the treasurer, and claimed that the foregoing act is in violation of the seventh section of the ninth article, and» also of the twentieth section of the third article of the constitution of Pennsylvania, and therefore powerless to create an obligation upon the county, or to authorize interference with its funds.
    The constitutionality of the act is the question raised in the case stated.
    Upon this question' the court said :—
    “ The seventh section of the ninth article of the constitution declares that ‘ the General Assembly shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association, institution or individual.’ The legislature is thus explicitly denied the power to authorize a county to appropriate money for any corporation or institution. The act in question authorizes the managers of the hospital, a corporation, to make requisitions upon the commissioners of the county, ‘for which requisitions the commissioners shall grant orders upon the treasurer of the county, who shall pay the same to the managers of such hospital.’ The county is by this act authorized and directed to appropriate money for a corporation; but the constitution says the legislature shall not authorize such appropriation. The object of the constitutional provision is to prevent the money of the taxpayer from being-given to a corporation or institution; but the Act of Assembly directs its appropriation to' this prohibited object. The conflict between the act and the constitution is clear and obvious ; it is so plain and palpable as to leave no doubt or hesitation in our minds : Sharpless v. Mayor of Philadelphia, 9 Harris 164; Speer v. School Directors, &c., of Blairsville, 14 Wright 150.
    “ In the case of the Northern Home for Friendless Children, reported in 2 Weekly Notes 349, the first and second sections of the Act of April 12th 1875, Pamph. L. 46, authorizing and regulating the -making of local appropriations to the schools known as homes for friendless children, were examined. By that act, upon petition setting forth certain matters relative to the number of children cared for, the expenditures, condition and wants of the school, it is made the duty of the Court of Common Pleas, after full investigation, to order and direct the commissioners of the county or city in which the school is situated, to pay to the treasurer of such school, out of the county funds, such sum of money and in such instalments, as the court -shall deem just and necessary. The commissioners wore thereupon required to draw their warrant upon the county or city treasurer for the payment of such appropriation. Judge Biddle declared this act unconstitutional, as being in conflict with the seventh section, article ninth, of the constitution.
    “ It is a serious question whether the twentieth section of the third article does not also prohibit this legislative interference by a private corporation with municipal functions, and the appropriation to a private association of municipal moneys.
    “Upon consideration, we are of opinion that the said Act of Assembly of May 21st' 1874, Pamph. L. 220, is unconstitutional, and pursuant to the terms of the case stated, we direct that judgment be entered in favor of the defendant.”
    The plaintiff (the hospital) took this writ and the errors assigned were:—
    1. Because the learned judge erred in deciding that judgment should be entered in favor of the defendant.
    2, Because the judgment is erroneous.

      George R. Bedford and B. P. $ J. Vaughan Barling, for plaintiff in error.
    Nothing can be conceived more foreign to the purpose held in view by the section of the constitution referred to, than that its provisions should be held to prohibit the payment by counties, boroughs, &c., of debts actually incurred for legitimate purposes, by the public authorities, within their respective limits. A similar construction of the sixth section of the same article of the constitution would most effectually prevent any loan by the Commonwealth even for the purpose of paying its own debts. “ The credit of the Commonwealth shall not be pledged or loaned to any individual, company, corporation or association.” * * *
    Nobody would contend that, under this provision, the legislature might not authorize a valid loan of the Commonwealth’s credit, either to meet an existing debt or to provide for any legitimate and proper legislative or governmental expense.
    Is it not equally certain that, in the same way, the legislature may provide for the expenses incurred within the several counties of the state, “ for the support, out of the county treasury, of the sick and injured poor?”
    The power of the legislature in this respect was unlimited until the amendment of 1857. That amendment is identical with the 7th section of article 9 of the present constitution, excepting only the introduction, in the latter, of the words “ or appropriate,” after the word “obtain,” and the substitution of the word “individual” for the word “party,” and the omission of the words “by virtue of a vote of its citizens or otherwise.”
    Under this clause, as it then stood, in the great case of Speer v. School Directors, &c., of Blairsville, 14 Wright 150, the distinction was clearly pointed out in the opinion of the present chief justice, between the apparent and broad sense of the words and their real and necessarily restricted meaning : “ The prohibition of the clause is clearly not against obtaining money for individuals in the sense of those appropriations which involve the public interests; otherwise this would overthrow the whole power to borrow money to perform ordinary municipal functions. The true question is whether the money is borrowed for a public purpose, and paid boná. fide to a proper person for this purpose, or whether it is money obtained as a loan or advance to the use in all respects of private parties.”

      In Hilbish v. Catherman, 14 P. F. Smith 154, this principle was affirmed. See also Wheeler v. City of Philadelphia, 27 P. F. Smith 338; Weister v. Hade, 2 Id. 474; Booth v. Town of Woodbury, 5 Am. Law Reg. N. S. 202.
    Is the use for which the money is appropriated a public one, for a purpose within the proper operation of municipal authority ? is the proper question here.

      George B. Kulp, for defendant in error.
    The vice of the act is that it transfers the care of the sick and injured poor from the officers of the municipality, properly chargeable therewith, to a private corporation in no way responsible to or under the control of the county. Speer v. School Directors, supra, supports this contention.
    Neither the language nor the principle of Wheeler v. Philadelphia, supra, warrant the application given to it here.
    March 19th 1877.
   Chief Justice Agnew

delivered the opinion of the court,

The seventh section of the ninth article of the new constitution of 1874, declares that “ The General Assembly shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association, institution or corporation; or to obtain or appropriate money for, or to loan its credit to any corporation, association, institution or individual.” This section is a substantial re-enactment of the seventh section of the amendments to the constitution of 1857. The latter clause of the amendment of 1857 omitted the word “appropriate.” The convention of 1873 inserted this word to give the clause a wider effect. In the case of Speer v. The School Directors of Blairsville, 14 Wright 150, the amendment of 1857 wás thoroughly discussed, and it was held that the words “to obtain money for, or loan its credit to any corporation, association, institution or party” did not apply to raising money on the bonds of the municipality for a public purpose, such as the payment of bounties to relieve the people of the municipality from an impending draft, by lot, into the military service. In such a case, the purpose is payment in discharge of a duty or obligation lying upon the municipality, not a loan or advance for purposes private in their nature, or made in aid of private corporations or parties. It was said there, “ There is not a word in the amendment which interdicts the borrowing of money merely, or the pledging of the public credit for municipal purposes, to be laid out by authorized public officers. The purpose was to prevent the money of the people from passing into the control of private irresponsible associations or parties, and from being squandered in undertakings of doubtful propriety, or being liable to be lost through the want of integrity of those engaged in its disbursement. It intended to confine the municipal expenditures not only to public objects, but to public officers or agents under their direct responsibility to the municipality.” This interpretation given to the amendment of 1857 was well known to the members of the convention of 1873, for the subject of bounties was one which engaged the attention of the whole state; and the decision came home to every borough, city, township and county. The convention did nothing to weaken the force of the amendment of 1857, and on the contrary added to its strength by inserting the word “ appropriate,” and substituting the word “individual” for “party.” The words “ obtain money for or loan its credit to” applied only to the use of the liability or the credit of the municipality ; but the insertion of the word “appropriate” expanded the effect of the section, so as to embrace money in the treasury itself. A law enabling a private incorporated hospital to make requisitions upon a county, for the payment of its charges for the support of patients under treatment, even though they be paupers, is an appropriation of money by the county to the corporation and comes within the prohibition of the constitution. It is not a payment of any debt incurred by the county, but is a transfer of the money by operation of the Act of Assembly from the treasury of the county to that of the hospital. The hospital exercises no municipal function, but takes as a private institution by a mere act of appropriation. It is under no obligation to open its doors to municipal inspection or visitation, and cannot be controlled or called to an account for the moneys drawn upon requisition — once paid the money is beyond the control of the county. Thus its expenditures may be lavish, and the public funds are liable to be misdirected or squandered, without check, through extraordinary charges and unfair requisitions.

In Speer v. School Directors, supra, care was taken to distinguish between those necessary governmental purposes, and that proper official disbursement, which are essential to the welfare of society, and for which municipal liability and credit must often be pledged; and those-purposes, however public in their nature, which are administered by private, and in a legal sense, ii’responsible hands. The essential powers of government must not be crippled by a too stringent withholding, while it will not do to endanger the public interests by an extension of pecuniary obligations, which, owing to the hands which expend, may result in financial embarrassment and injury. The constitutional restriction is wise in its purpose and ought to be liberally construed for the protection of the people, and strongly against the inhibited institutions aud parties.

Judgment affirmed.

Sharswood and Pax son, JJ., dissent.


author: Mr. Justice Paxson

text:
    Rutty’s Appeal.
    G., in consideration of the transfer to him of about $1300, by his mother, T., gave her a bond (with warrant of attorney) in $2600, conditioned upon his supporting and clothing her, and paying her $25 a year during her life. Judgment was entered on this bond. Afterwards II. and S. successively obtained judgments against G. Under the judgment, of S. real estate of G. was sold ty the sheriff. In the distribution of the fund raised by this sale $1394.63 .was directed to be “ impounded in court for the benefit of T., who had then become a lunatic, to be used by her committee for her support, the balance at her death to go to the person legally entitled thereto.” No exception was taken to this award by H. or S. That sum was" paid to the committee and the residue of the fund to II. on his judgment. After T. died the committee filed a report, upon which the court awarded the funds in his hands, first, to pay an unpaid bill for T.’s support, and secondly, to II. and S. successively, on their’respective judgments. Held, that the award to H. and S. was error, and that the residue should be paid to T.’s personal representatives.
    March 5th 1877.
    Before Agnew, O. J., Sharswood, Gordon, Paxson and Woodward, JJ. Mercur, J., did not sit in this ease.
    Appeal from a decree of the Court of Common Pleas of Bradford county : Of January Term 1877, No. 84.
    This was an appeal from a decree confirming an auditor’s report in the settlement of the account of E. T. Fox, committee of Hester Taylor, a lunatic. The case was this :—
    George T. Granger gave to his mother, Hester Taylor, a lunatic, his bond in $2600, with warrant of attorney, as follows :—
    “Whereas, the above-named Hester Taylor has this day, and heretofore given, sold and delivered over to the above-bounden George T. Granger, money and obligations, amounting in all to the sum of about $1300. Now, the condition of the above obligation is such that if the above-bounden George T. Granger, shall well and truly and comfortably support, maintain and provide for the said Hester Taylor, and keep her in good and comfortable clothing, and care for her kindly and tenderly, in sickness and in health, furnishing her with all things requisite for her comfort during her natural life, and also to pay to her the sum of $25 per annum so long as the said Hester Taylor shall live, then this obligation shall be null and void, otherwise to be and remain in full force and virtue.”
    Judgment- was entered on this bond on July 2d 1870. On March 25th 1872, William Hoaglin, and on April 17th 1872, David Sherman, obtained judgments against Granger. In April 1873, certain real estate of Granger’s, subject to the lien of all of these .judgments, was sold under the last judgment for $2490. This amount was paid into court and distributed by an auditor. The auditor directed that $1394.63 (being $1300 which Granger had originally received from his mother with interest, costs and three instalments of the annual payment of $25) should be “impounded in court for the benefit of Hester Taylor, the plaintiff in one of the above judgments, to be used by E. T. Fox, her committee, for the payment of any claims which the said committee might be liable to pay, and for the support of Hester Taylor during her natural life, and at her death, any balances remaining to go to the person legally entitled thereto.” The rest of the fund was awarded to other lien creditors, a part of it to the Hoaglin judgment. This report was duly confirmed. In September 1873, Mrs. Taylor died. Some time afterwards the court below appointed an auditor to distribute the funds in the hands of E. T. Fox, her committee. The auditor awarded the fund, after the payment of costs, first, to pay Mrs. Emeline Rutty, a daughter of Mrs. Taylor, for sixty-three weeks board for her mother, and after that to the Hoaglin and Sherman judgments, successively. It appeared in evidence that there had been an arrangement between Granger and Mrs. Rutty by which they agreed to share equally in the amount of the bond after Mrs. T.aylor’s death. Mrs. Rutty, therefore, excepted to’the report of the auditor, in that the auditor should have awarded her one-half the fund after deducting the costs and the amount already awarded to her for her mother’s board.
    The court below (Morrow, P. J.) dismissed her exceptions and confirmed the report; from which decree Mrs. Rutty appealed, assigning for error the order dismissing her exceptions.

      D' A. Overton and R. A. Mercur, for the appellant.
    The lien of Mrs. Taylor’s judgment was fixed and was not discharged by the sale, but as it was so treated it is too late to raise the point now.
    The award to the committee was equivalent to an award to Mrs. Taylor, and the fund was no longer impounded when it was paid to the committee. Judgment creditors should have excepted, then. The real estate brought a better price from being sold divested of liens, an'd the judgment creditors having elected to have it sold so, and having received the benefit of the sale, cannot now claim a lien upon Mrs. Taylor’s estate also.

      H. Streeter, for the appellees
    the plaintiffs in the Hoaglin and Sherman judgments. — All parties agreed to have their liens transferred to the fund raised by the sale of the real estate, and their rights as lien creditors therefor, remain unchanged If Mrs. Taylor had died before the sheriff’s sale, Granger having fulfilled the condition of the bond, there can be no question but that the judgment on his bond would have been satisfied. The record gave notice that when the condition of the bond was satisfied all liability on the obligor ceased, and no arrangement privately made between Mrs. Rutty and Granger could affect other lien holders : Mott v. Clark, 9 Barr 405 ; McConnell v. Wenrich, 4 Harris 371.
    The bond recited that Mrs. Taylor had sold and delivered certain property to the value of $1300 to Granger; the property then became his absolutely, and Mrs. Taylor had no interest but in the bond.
    The fund was impounded in court, to go finally to the person legally entitled thereto. Placing the funds in the hands of Mrs. Taylor’s committee was not payment to him ; that was nothing more than a management of the fund by the court. The charge of the fund was in the court, though administered by a committee: Yarpel v. Titus, 5 Wright 203. The fund was placed in Fox’s hands to enable him to comply with the condition of the bond, and now that he has done so, the fund, being still impounded in court, should go to the remaining lien creditors, those “ persons legally entitled thereto.”
    May 7th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

This was an appeal from the decree of the court below making distribution of a fund in the hands of E. T. Fox, committee of Hester Taylor, a lunatic. The committee, after the death of the lunatic, filed his account in the Court of Common Pleas, in which he charges himself with the fund as the property of Hester Taylor. The auditor and the court below treated the fund as the property of George T. Granger, and after the payment of the expenses of the audit, and Mrs. Rutty’s bill for sixty-three weeks board of the lunatic, awarded the residue to the lien creditors of Granger. This was error. The creditors of Granger have no legal claim upon this money. They were heard when his real estate was sold at a judicial sale and the proceeds thereof brought into court for distribution. The judgment bond of Granger conditioned for the support of Hester Taylor Avas a lien upon said real estate. This judgment was in the. nature of a fixed lien, and ought not to have been divested by the sheriff’s sale : Luce v. Snively, 4 Watts 397 ; Moore v. Shultz, 1 Harris 102. The amount could not well be ascertained in dollars, in Avhich it differs from an annuity bond, the value of which can always be fixed by reference to the Carlisle tables. It appears, however, that the parties, the auditor and the court beloAY, have treated the lien of the Hester Taylor judgment as divested. All of the confusion in the case arises from this fact. It is too late noAV to remedy this error, and Ave must decide the case as it is presented. -Upon the distribution of the proceeds of Granger’s real estate it ayouM appear that the auditor, by some process or course of reasoning which does not very clearly appear, ascertained the value of the condition of the bond given to Hester Taylor, for he set apart to meet it the sum of $1394.63, being a trifle more than one-half the penalty of the bond. This sum the auditor directed should “ be impounded in dourt for the benefit of Hester Taylor, the plaintiff in said judgment, to be used by E. T. Fox, her committee, as the court shall direct, for the payment of any claims which said committee as such may he liable to pay, and for the support of said Hester Taylor during her natural life, and at her death any balance remaining to go to the person legally entitled thereto.” The auditor then gave the remainder of the fund applicable to the Taylor judgment to'the next lien creditors of Granger, the appellees in this case. The court below affirmed the auditor’s report, but made no order impounding the fund. On the contrary the order was that “ the sum of $1394.63, being the amount decreed by said auditor, and applied on No. 589, September T., 1870, Hester Taylor v. George T. Granger, be paid over to E. T. Eox, committee of Hester Taylor.” This decree was not appealed from and concludes the judgment creditors, who are the present appellees. It was an absolute order that the fund be paid over to the committee of Mrs. Taylor. The payment to the committee was a payment to her. It was clothed with no trust for the creditors of Granger. It was urged that the order of court was but an affirmance of the auditor’s report, and a mere transfer of the money to the committee as a matter of convenience, instead of impounding it. This is not clear. If it were so I am at a loss to see how it would change the result. All that the auditor directed to be done is implied in the order of the court. The only legal difference is the substitution of the committee as the custodian of the money. The auditor directed that the money should be applied to the support of Hester Taylor during her life, and after her death the balance remaining was to go to the person legally entitled thereto.

This was all surplusage. He merely directs that the money should be applied as the law, in the absence of any such direction, would apply it. In its legal effect it differs in no respect from the order of the court. Neither the auditor’s report nor the decree of the court imply any trust for the creditors of Granger. They had their day in court. When the real estate" of Granger was' sold, by consent of all parties, the lien of the Hester Taylor judgment divested; they came in and obtained nearly half the proceeds applicable thereto, to apply to their subsequent liens. They-could not do this and claim to hold a lien upon the balance of the fund. Having consented to the divesting of the lien of the Taylor judgment and obtained the benefits thereof, they had no right to ask the court below to impress a trust for their benefit upon the fund awarded to the committee. The court below evidently so regarded it. Otherwise the whole fund should have been set apart. Had a trust been intended, it should have been a trust for the whole. Had Mr's. Taylor lived several years the portion set apart for her might and probably would have been entirely inadequate. The whole fund might have been insufficient. As a portion of the fund was awarded to the subsequent lien creditors, and only $1394.63 applied to the Hester Taylor judgment, we regard this sum as the ascertained value of the condition of her bond, and that the order of court awarding it to the committee was an absolute decree to Mrs. Taylor of that amount of money, clear and discharged of any trust for the appellees.

As before observed the committee of Mrs. Taylor charges himself in his account filed as such committee with this money. If he has brought money into his account which in point of fact belongs to some other person, or to some other estate, its distribution, here might not protect him against a claim therefor by the rightful owner. In this proceeding it would seem to be conclusive as to the ownership of the fund. So long as the accountant interposes no objection of this nature, it is not easy to see how any one else can do so.

We are of opinion that the lien creditors of Granger cannot come in upon this fund. Nor is Mrs. Rutty, the appellant, in any better position. Her claim for boarding the lunatic was properly allowed. Beyond that she cannot claim in this proceeding. We are disposing of the account of a committee, not of an administrator. The entire fund, after the payment of proper claims against it, should have been awarded to the personal representatives of Hester Taylor, deceased, by whom when received it can be distributed according to law. It may be necessary to raise up an administration for that purpose.

The decré'e is reversed and set aside, and it is now ordered and decreed that the residue of the fund in the hands of the committee, after the payment of the expenses of the audit, the claim of Mrs. Rutty for board as allowed by the auditor, and the costs of this appeal, be paid to the personal representatives of Hester Taylor, deceased.

Mr. Justice Sharswood dissented.


author: Mr. Justice Mercur

text:
    Commonwealth versus Trimmer et al.

    1. In an indictment for forging the election returns of one township the defendant cannot avail himself of a plea of autrefois acquit and set forth the record of an acquittal on an indictment charging a similar offence in regard to the returns of an election held in another township.
    2. If the record of the former trial shows that the evidence necessary to support a conviction on the indictment on trial would have been insufficient to procure a legal conviction on the former, the plea of autrefois acquit cannot be sustained.
    3. As a general rule a demurrer admits the facts pleaded and refers the question of their legal sufficiency to the court, but to give it this effect the facts must be well pleaded.
    March 6th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.

      Certiorari to the Quarter Sessions of Luzerne county: Of January Term 1877, No. 162.
    Indictment of Samuel W. Trimmer, M. E. Gaughan and James Welch, under the 17lst section of the Penal Code, Pamph. L. 1860, 169, Purd. Dig. 365, pi. 255, -which provides:—
    “If any person shall forge, deface, embezzle, alter, corrupt, withdraw, falsify or unlawfully avoid any records, * * * or shall forge, deface or falsify * * * any certificates; or shall forge or deface * * * any document * * * or any proceeding whatever, of or belonging to any public office within this Commonwealth; or if any person shall cause or procure any of the offences aforesaid to be committed, or be in anywise concerned therein, he shall be guilty of a misdemeanor, and on conviction be sentenced to pay a fine not exceeding $2000, and to undergo an imprisonment, by separate and solitary confinement, at labor, not exceeding seven years, and if a public officer, he shall be removed from such office, and the same be declared vacant by the court passing sentence upon him.”
    When the official count was made of the vote of Luzerne county, at the November election in 1875, it was discovered that the returns from Old Forge, Blakely, Spring Brook and Union townships, and the third district of the Twelfth ward of Scranton, had been altered and forged, and Trimmer, the prothonotary of the county, Gaughan, his clerk, and Welch, were jointly indicted therefor, the indictment containing one count, including all the districts above named.
    At the trial, the defendants compelled the Common-wealth to select for which of the several offences charged she would proceed, claiming that the alteration of the returns in each election district was a separate offence. The court, Harding, P. J., so held, and the trial proceeded for altering and forging the returns from Blakely township. The jury failed to agree and were discharged. The next grand jury found true bills for each district, and the jury was again sworn in the Blakely case. Welch was allowed a separate trial, and the Commonwealth, after examining one or two witnesses, declined to further proceed in the trial, and the court, Handley, J., directed the jury to find a verdict of “ Not guilty” as to Trimmer and Gaughan, which was done.
    At the next term of the Quarter Sessions, when the defendants were called to plead to the four remaining indictments, for altering and forging the returns from Old Forge, Spring Brook, Union township and the third district of the Twelfth ward of Scranton, they put in the plea of autrefois acquit, and setting forth a copy of the Blakely indictment and the acquittal thereupon, asked for their discharge. To this plea the Commonwealth demurred, on the ground that the offence of which the defendants had been acquitted and that for which they were to be tried were separate and distinct offences, viz., the forgery of returns from different districts.
    The court, Handley, J., in an opinion, inter alia, said-

      “ The Commonwealth, by demurring to the plea, admitted the truth of the allegation of the defendants that the offence now-charged was the same, of which they had been already acquitted. If the counsel for the Commonwealth intended to deny their identity, they should have joined issue on the plea and submitted that fact to the determination of a jury: 2 Hale’s P. C. 245 ; 1 Stark. Crim. PL, 2d ed., 325-6. We must, therefore, hold in this case, that the record of the elections of the several townships, for any one general election in and for the county of Luzerne, constitutes and is but one indivisible record, or certificate, as indistinct as water is in water. Hence the forging of any one or more of the papers connected with such record or certificate of an election is a forgery of the whole, and is but one offence in the eyes of the law.
    “ The demurrer of the Commonwealth is overruled, the plea autrefois acquit is sustained, and the defendants S. W. Trimmer and M. E. Gaughan are ordered to go without day.”
    The Commonwealth removed the case here, by certiorari.

      Edward H. Chase, Henry W. Palmer and Charles H. Rice, for Commonwealth.
    Will an acquittal upon an indictment for forgery of the election returns for “ Blakely” bar a prosecution of the same offence for forging the returns from “ Old Forge ?” No doubt has been suggested that the returns are records and the subject of forgery. These returns are as unlike as papers can be; no two are made by the same man or at the same time or place, and have no connection, relation or dependence on each other, and it is manifest, therefore, there may be as many forgeries as there are'returns.
    By demurring the Commonwealth only admitted that the defendants had been acquitted of forging the returns of Blakely, nothing more, and the court, in disposing of this demurrer, was bound to look at the whole record, which would have disclosed that the acquittal pleaded and the offence charged were not the same. The true test to ascertain whether a plea of autrefois acquit is a good bar is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first: 1 Bishop’s Crim. Law, sect. 1052, and cases cited; 1 Whart. Crim. Law, sect. 565 ; Heikes v. The Commonwealth, 2 Casey 513.
    Apply this test to this case. Could the defendants have been convicted of forging the returns from Old Forge on an indictment for forging the returns from Blakely ? In each count of the indictment they are charged with the specific offence of forging the returns from Blakely. Would evidence of a forgery of returns from Old Forge have been competent on that trial ?

      Stanley Woodward, contrá.
    The demurrer admitted the truth and full effect of the plea, but apart from this it can be sustained on its merits. The' records of an election are one paper, and- the offence is not against the township but against the county, and is complete when an alteration is made in a single tally.
    May 7th 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

This case is controlled by the effect to be given to the pleadings. The indictment substantially charges that the defendants forged, defaced, withdrew and falsified tally papers, certificates, documents and records, taken and made at the general election held on the 2d day of November 1875, in and for the township of “ .Old Eorge.” The defendants plead autrefois acquit, setting forth at length another indictment, which charged them with having committed the same offences in regard to the tally papers, certificates, documents and records, taken and made at a general election held on the same day, in and for the “ Southern District of the township of Blakely,” and averred a trial and acquittal on said indictment “ as by the record of the said proceedings now here appears.” They further averred that the felony and misdemeanor charged in that indictment, were one and the same felony charged in the present indictment, and this they were ready to verify, &c. To this plea, the Commonwealth demurred generally. The court overruled the demurrer, sustained the plea of autrefois acquit, and ordered the defendants to go without day.

This judgment of the court is assigned for error.

As a general rule a demurrer admits the facts pleaded and refers the question of their legal sufficiency to the decision of the court. To give this effect to the demurrer the facts must be well pleaded: Hancocke v. Prowd, 1 Saund. 337 b, n. 3; Jones v. Stevens, 11 Price 235.

Here the defendant’s plea set forth the record of an acquittal on an indictment charging an offence in regard to the returns of an election held in another township. It did not aver that the townships named in each indictment were one and the same township. Bearing different names the legal presumption is that they were separate and distinct townships. The plea alleges no fact repelling that presumption.

It is contended that the same election is described in each indictment, and that therefore that each offence was committed by one and the same act. In one sense it may be said that it was the same election: but in many others it was not. Each was a district in which the qualified voters thereof might vote in the election of the same officers, but it does not necessarily follow that the votes were cast for the same persons. John Doe may have received all the votes cast, for a particular office, in one township, and Richard Roe all cast for the same office, in the other township. A fraudulent alteration of the records, showing the number of votes cast in one township, would not add to or take from, the true number cast in the other township. The number of votes cast in one township is an independent fact, not changed by the number cast in any other township. It is true the election held in each district affects the general result in determining who are elected to the several offices. At this general election the 'vote in each district not only affected the result in the whole county of Luzerne, but in so far as it was cast for state officers, it affected the result in the entire Commonwealth. Yet this fact by no means destroys the separate identity of each district. Each election district has its own officers to superintend the election therein. They only certify to the number of votes there cast and make the proper return. Their powers, duties and responsibilities apply to the elections in their own district only. There is no such iinity between townships as to make the records of one township the records of another township, for any purpose. The record of the school directors in school district A. is not the record of the school directors in district B. The taxes levied in one district are not the taxes of the other. The schoolhouse of one district is not the property of another district. The tally papers and records of the votes cast and of the voters, in the township of “ Old Forge,” are not the tally papers and records of the votes cast, nor of the voters, in the township of “ Blakely.” It is very clear that on an indictment for falsifying the election returns of “ Blakely” township the defendants could not be convicted of having falsified the returns of Old Forge” township. Proof of the returns of one township is no proof of the returns of any other township. Evidence identifying the returns from one is no evidence of the returns from another. Where the evidence necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit is generally good, but not otherwise: 2 Am. Crim. Law, § 565. The fact that the returns of the election held in the several districts of the county, are all deposited in the prothonotary’s office, does not make them an indivisible record. They still have a separate and distinct existence.

The question here is not whether an indictment might not have been framed in language general and broad enough to have let in the evidence, and' to have tried the defendants for falsifying all the returns of this election in the county; but whether such action could have been had under the indictment pleaded in bar, which limited the offence to the records of “ Old Forge” township ? As on an indictment for forging the note of A., no conviction could be had for forging the note of B., so on an indictment for forging the election papers of “ Old Forge ” township no conviction could be had for forging the election papers of “ Blakely township.”

It is contended that if this be the correct effect to be given to the record, yet inasmuch as the plea further avers the offence to have been the same, it changes the effect of the record. We cannot adopt this view. The plea concludes, as it necessarily must, with a proud patet per recordum, and an offer to verify it by the record. Then whether the offence is the same is to be decided by an inspection of the record.

On demurrer to a plea in bar, the court will consider the whole record, and give judgment for the party who on the whole appears to be entitled thereto : Duppa v. Mayo, 1 Saund. 285, n. 5; 1 Tr. & H. Pract. 490; Murphy v. Richards, 5 W. & S. 279. Hence, on a demurrer to a replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment not for the defendant, but for the plaintiff, provided the declaration be good: Anon., 2 Wilson 150. Whether the former acquittal was for the same offence depends on the record pleaded, and not on the argument or inference deduced therefrom. The defendants plead in bar a former trial on no other indictment than the one set forth in the plea. If that record shows that the evidence necessary to support a conviction on the present indictment, would have been insufficient to procure a legal conviction on the former, the plea of autrefois acquit is not sustained.

It was further urged that the objection to the sufficiency of the plea could be raised by special demurrer only. It is undoubtedly true that a special demurrer is necessary where the objection turns on matter of form only ; but a general demurrer is sufficient where the objection is to matter of substance: Steph. on Plead. 159; 1 Tr. & H. Pract. 489. Here the demurrer is to matter of substance. The substance of the plea is the record therein recited. The demurrer denies the sufficiency of all the facts shown by that record. The record pleaded describes specifically the offence charged in the former case, and shows it is not the same offence which is charged in the present. It shows the offence now charged here could not have been tried there. It is the duty of the court to declare the legal effect of a record which is offered to sustain the plea of autrefois acquit, and the record cannot be gainsaid by parol evidence : Martha v. State, 26 Ala. 72. The learned judge erred in overruling the demurrer.

Judgment reversed, and judgment of respondeat ouster.


author: Mr. Justice Gordon

text:
    Leeds et al. versus Lockwood et al.

    In an action of ejectment a misdescription in the writ, of the land in controversy, may be amended by filing a new description, but such amendment cannot be permitted to relate back to the commencement of the action, and thus affect defendants whose rights have since accrued under the Statute of Limitations.
    March 6th 1877.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Mercur, J., did not sit in this case.

      Error to the Common Pleas of Bradford county : Of July Term 1875, No. 6.
    Ejectment by Louisa C. Leeds and others against Edmund Lockwood and Hiram Luther.
    The action was originally brought on the 10th of September 1861, and the writ Avas served on the 30th of the same month upon Edmund LocltAvood and Myron Luther. The praecipe and Avrit contained this description of the land, for which the action was brought:—
    “Beginning at the north-east corner of lot in possession of Alexander Lane and Jcre Travers, thence south 103 perches to a post, thence north 45 degrees, west 44 perches, thence south 80 degrees, Avest 87 perches to a post, thence north 82 perches to a corner, thence east 108 perches to place of beginning, containing 50 acres, GO perches, more or less.”
    No further steps Arerc taken in the case until January 4th 1872, when an application was made to substitute certain parties in interest and to amend the description in the Avrit so as to read, “ Beginning at a corner 108 7-10th rods east of the north-east corner of the Lane and Travers lot.” It ayos conceded that the description in the Avrit did not touch the land in possession of Myron Luther, but by adopting that in the proposed amendment the description covered the land in controversy. It ayos alleged that it was the intention to bring the action for this land, and the misdescription was a mistake of the attorney Avho dreAv the praecipe.
    Myron Luther' filed an affidavit in the case substantially as follOAA’S :—
    “ That at the time of the commencement of this suit the said Hiram Luther Avas the minor son of said deponent, and was in possession under said deponent of land which lies immediately east of and adjoining the land covered by the Avrit of summons issued in this case, said deponent then holding said land under a lease. The land covered by said Avrifc lies Avholly Avest of a tract of land for Avhich a patent Avas issued from the CommonAvealth of Pennsylvania to Edmund LockAvood, on the 9th day of May 1870, in pursuance of a survey made October 16th 1839, on Avarrant dated October 5th 1839. That upon the 21st December 1866, said deponent purchased by contract of said Edmund LoekAA'ood, part of the tract of land covered by said survey and warrant, containing about seventy-two acres.
    Said deponent further saith, that in addition to his claiming said land under a legal title from the Commonwealth, he also claims to hold the land by adverse possession of those under whom he claims for such a length of time, as when added to his own possession will give him a good title under the Statute of Limitations, counting up to the time that the plaintiffs application was made to amend the description ; but said deponent is not certain that he can prove the twenty-one years’ adverse possession before the commencement of this suit. The suit as brought and the writ covers no point of said deponent’s land, nor of any lands of which he ever had any possession nor to which he laid any title or claim. To permit the amendment asked for to be made will be a relinquishment of all the land now covered by the writ,- and extended to other lands, no part of which is now covered by the writ, and will cover lands of said deponent which he holds and claims to own both by possession and by legal title. Therefore, as said amendment would do great injustice to your deponent, and might defeat his title by possession, he earnestly protests against its allowance.”
    Upon the rulé to show cause why the substitution of the parties in interest should and the amendment should not be made, the court, Streeter, P. J., in an opinion, said:—
    “ It seems to the court that this amendment would introduce a new cause of action. The description as filed runs round an entirely different lot. If the description indicated the lot, but was defective in some particulars, doubtless an amendment correcting the mistakes would be allowed. But it is proposed to change the description from one lot to another, and an entirely different lot. A suit is brought in 1861, for one form, and in 1872, it is proposed to change the action so as to embrace another form. I think this is going too far, especially when such amendment might destroy a title acquired under the Statute of Limitations. In Wright v. Hart’s Adm’r, 8 Wright 455, it is said c the plaintiff below could not amend his declaration so as to introduce a new cause of action; and this is very especially true, where the new cause is so old as to be barred by the Statute of Limitations.’ In this case, the plaintiff counted upon a promissory note, and many years afterwards was permitted to amend by declaring upon another rule, which, at the time of the amendment, was barred by the statute.' I am not able to distinguish the two cases upon principle; and the amendment must, therefore, be refused, so far as it relates to the description. There can be no objection to the plaintiffs substituting the parties in interest. The first branch of the rule is made absolute, and the latter branch is discharged.”
    The plaintiffs excepted to this action of the court, and the trial subsequently proceeding (at which the above motion to amend was renewed and again refused) and resulting in a verdict for the defendants, the plaintiffs took this writ and alleged that the court erred in discharging the rule and not allowing the amendment.

      H. W. Patrick and Edward Overton, Jr., for plaintiffs in error.
    If the description in the writ of the land for which the ejectment is brought be defective, the defect may be supplied by another description filed with leave of court: Sample v. Robb, 4 Harris 305. See also Donaldson v. Bank of Danville, 8 Id. 245.

      H. Peet and Davies & Carnochan, for defendants in error.
    The question is not one of amending a misdescription, but whether having sued for one lot the plaintiffs shall be allowed to change their location, after eleven years have elapsed, and after the title of Myron Luther has become perfect by lapse of time, so as to include his premises.
    Not only a new cause of action, but a new defendant would be introduced. Myron Luther had no claim of title at the commencement of this suit.
    May 7th 1877.
   Mr. Justice Gordon

delivered the opinion of the court.

The court should have allowed the amendment asked for by the plaintiffs. The misdescription, no doubt, resulted from a mistake in commencing at the north-east corner of the Lane and Travers tract, instead of the north-east corner of the tract in controversy.

Even before the passage of the Acts of 1871 and 1872, a defect of this kind might have been cured by filing a new description: Sample v. Robb, 4 Harris 305. Since the date of those acts, amendments may be permitted in all cases, and at any stage of the proceedings. But as the amendment will necessarily substitute a tract of land entirely different from that described in the writ, it cannot be permitted to relate back to the commencement of the action, and thus affect the rights the defendants might otherwise have under the Statute of Limitations. The mistake, if mistake it was, arose from no fraud or default of the defendants, hence their rights must remain just as they are found at the time of the amendment, or as though the writ had issued at that date, or more correctly, at the date when the amendment was applied for. As Avas said by our brother Mercur, in the case of Kille v. Ege, 1 Norris 102: Amendments, depriving the opposite party of any valuable right, shall not be allowed. Hence Avhen the name of a person was added as plaintiff in ejectment after suit brought, it Avas held, that if at the time of the amendment, the title of the neAV party was barred by the Statute of Limitations, he could not recover;” citing Trego v. Lewis, 8 P. F. Smith 463 ; Kaul v. Lawrence, 23 Id. 410.

With this qualification as to the effect of the amendment, we think it should have been allowed; for it would seem, in the language of the act, to be necessary for a proper decision of the case on its merits.

The judgment is reversed and a neAV venire is awarded.


text:
    Lee et al. versus Jeddo Coal Company
    1. The recitals in the deed of county commissioners made in pursuance of a sale of land for taxes, prima facie raise a legal presumption that the commissioners did their duty and made the sale according to law.
    2. Jenks «.Wright, 11 P. P. Smith 410; Hoffman v. Bell, 11 Id. 444; Hess «. Herrington, 23 Id. 438, distinguished.
    March 6th and 7th 1877.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1875, No. 137.
    Ejectment by D. W. Lee and others against The Jeddo Coal Company for a tract of land in Poster, formerly part of Butler township, Luzerne county.
    The plaintiffs having shown title out of the Commonwealth, and the assessments of the tract on the unseated list from 1832 down, and the assessments for the years 1848-49 in Butler township, on the unseated list, followed by a treasurer’s sale in 1850 to the commissioners, and the deed to the commissioners dated August 1st 1850, and duly recorded, offered the Commissioners’ Sale Book of unseated lands for the year 1857, showing conditions of the sales of October 20th 1857, of lands purchased at the treasurer’s sale of 1850-52, and the record of the sale of the land in question to Jay Gould, to be followed by the commissioners’ deed for the same to the said Jay Gould, dated October 28th 1857, reciting the treasurer’s deed to them of August 1st 1850; that the land had remained unredeemed for upwards of five years; that the commissioners had advertised and, at a public sale, sold the land to Jay Gould.
    This commissioners’ deed contained the following clause:—
    “ And whereas, five years, the time limited for the redemption as mentioned in the 6th sect, of the aforesaid act (13th of March 1815) having fully expired, and by a further supplement to the act, entitled ‘ An Act directing the mode of selling unseated lands for taxes and other purposes,’ passed 29th of March 1824 (8 Sm. Laws 291), by sect. 1 the commissioners are authorized to sell such lands as before mentioned for the best price that can be obtained for the same, and the commissioners having advertised that a public sale of the said described tract of unseated land among other lands, would be held at the court house in Wilkesbarre, on the 20th day of October 1857, did at the said time and place last mentioned, and by adjournment from day to day, and on the 20th day of October 1857, expose the same to sale by public vendue or outcry, and sold the same to Jay Gould, of the township of Buck, in the county of Luzerne, and state of Pennsylvania, for the sum of $1.50, he being the highest and best bidder, and that the highest and best price bidden, for the same.”

      To this offer the defendant objected that the plaintiffs had not shown the pre-requisites of the Act of 29th March 1824 (8 Sm. Laws 290, Purd. Dig. 1452, pi. 50), and the court, Dana, J., sustained the objection, giving the plaintiffs an exception.
    The plaintiffs then renewed their offer of the record of commissioners’ sale and the commissioners’ deed just rejected, and offered to accompany it with proof that the sale of the commissioners, October 20th 1857, including the land in question, was a public one;, that it was duly advertised in the “ Luzerne Union, ” one of the newspapers published in Wilkesbarre, in the county of Luzerne, during the requisite statutory period prior to the said sales, and that the commissioners directed that such advertisement should be made in all the other newspapers published in Luzerne county.
    Objected to by defendant as to the offer to prove that the commissioners directed that such advertisement should be made in all the other newspapers published in Luzerne county, for the reason that such directions are not a compliance with the Act of 29th March 1824, there being at that time a number of other papers published in Luzerne county ; it being conceded that at that time there were other newspapers published in said county, an'd that this objection being made by the defendants in this record, claiming title under parties other than the county, affirmative proof by the plaintiffs of publication, as required by the act, is an essential pre-requisite to the validity of the commissioners’ sale and deed.
    By the court: “The fact stated in the foregoing objection to plaintiffs’ offer, that there were other papers than the ‘Luzerne Union’ published in Luzerne county, at and prior to the date of said commissioners’ sale, being conceded by the plaintiffs, the foregoing objections being made, not by the county, but by the defendants in possession, claiming to have acquired title prior to the said sale of 1857, and the fact that they so claim, although not the validity of such claim, being conceded, are sustained.
    “ The statutory direction contained in the Act of 1824, that notice should be given by the county commissioners by publication in all the newspapers of the county where the land lies, for the period of thirty days preceding such sales, particularly designating the tracts to be sold, is precise, and in Jenks v. Wright, 11 P. F. Smith 410, is declared to be an element in the power of the commissioners to sell, which, if wanting, renders the sale void. Their mere direction that such advertisement should be inserted and made in all .the newspapers published in the county, without actually carrying out the same, is not a compliance with the act, w’hich prescribes publication, and not a mere direction to publish. The eA'idenee is therefore rejected, and, at the plaintiffs’ instance, a bill of exceptions is sealed.”
    The verdict was for the defendant, and after judgment, the plaintiffs took this writ, assigning for error the rejection of the foregoing offers of evidence.

      J. Vaughan Darling, Henry W. Palmer and E. P. Darling, for plaintiffs in error.
    It is a well-settled rule that the county commissioners, in- the discharge of their public functions, are presumed to have done their duty, and he who alleges misfeasance or malfeasance on their part must prove it.
    The absolute inability to sustain any tax sale made under laws which were in force prior to the Act of 1815 is well known. They are summed up by Justice Huston in Peters v. Heasley, 10 Watts 210, who states as the chief difficulty, that “ The sale might have been perfectly regular, everything required by law might have been strictly performed, and yet after the lapse of a few years this could not all be proved in court,” &c. And the same judge, in Morton v. Harris, 9 Watts 322, asserts that “ Although we have for a long series of years had laws under which lands on which no person resided and no improvements were made, were sold for taxes, and many hundred sales have taken place, yet no instance occurs, previous to 1815, in which the purchaser at a sale for taxes has succeeded in making out a good title in court,” &c.
    It is admitted that the Act of 1815 was passed to cure this great evil, and that it did cure it effectually in all cases of sales by the treasurer, including therein sales by them to the commissioners : Peters v. Heasley, supra. The intent of the legislature is not then doubtful. It was “ that no alleged irregularity in the assessment, or in the process or otherwise, shall be construed or taken to affect the title of the purchaser, but the same shall be declared to be good and legal.” It could not have been the intent of the legislature, therefore, to make a distinction in regard to tax sales; to give to treasurer’s sale the protection denied to commissioners’ sale, in case such protection were needed. Our contention is but a statement of the familiar maxim that where acts are of an official nature, or require the concurrence of official persons, omnia prcesumuntur rite et solenniter esse aeta donee probetur in contrarium. It must never, in applying this principle to the question in hand, be forgotten that sales by commissioners are not proceedings in invitum. They are not in' defeasance of estates vested in others. They are not even proceedings in execution of a power specially conferred. But they are simply and only sales by the actual owners of estates, fully and absolutely vested in them in fee simple. For when titles become vested in a county under purchases from the treasurer, the estate in the county becomes an absolute one immediately upon the expiration of the time limited for redemption by the former owner; and the commissioners in selling' are but the visible, material representatives of the county, which must act through them if it act at all: Huston v. Foster, 1 Watts 477 ; Steiner v. Coxe, 4 Barr 18; Kirkpatrick v. Mathiot, 4 W. & S. 251; Peters v. Heasley, 10 Watts 208; McCoy v. Michew, 7 W. & S. 386. We submit that a case can scarcely be imagined, to which the maxim above quoted is more fully applicable.
    It is claimed that the cases of Jenks v. Wright, P. F. Smith 410, and Hess v. Herrington, 23 Id. 439, introduced a contrary doctrine. We Contend that the true reading of these cases induces no such result. In Jenks v. Wright, the point actually decided was that a commissioners’ sale shown to have been a private one was invalid, and in Hess v. Harrington, the objection to the deed was one appearing on the face of the record relative to the manner in which the books were kept.

      Charles Pike and Henry M. Hoyt, for defendants in error.
    The offer of the plaintiffs in its very terms, shows a non-compliance with the very acts upon which, the presumption of regularity must he based, and the very state of facts disclosed by, and coupled with, the offer, positively exclude the operation of the maxim omnia prcesumuntur rite aeta, §-c.

    Before the Act of 1824, there was no prescribed manner of giving notice — in fact no notice was required by the Act of 1815. But by the Act of 1824, before any such sale is made the advertisement as prescribed by the statute must be made. The manner of the sale is directed by the law in positive terms, and the commissioners had no right to sell and make a deed until they had done what was required of them.
    A statute which provides for divesting title to lands by proceedings not according to the course of the common law, must be strictly construed; and he who claims under the statute, must affirmatively show a compliance with all its provisions: Jenks et al. v. Wright, 11 P. F. Smith 410.
    The principal object of the Act of 1824, in requiring public notice and description of the land in sales by the commissioners, was that the owners might know and avail themselves of the permissive right to redeem after five years. The precise statutory direction is an element in the power of the commissioners to sell, which, if wanting, there being no provisions of law curative of irregularities, as in the Act of 1815, must necessarily render a sale, without the observance of these pre-requisites, void. The mandate of the law being so, its disregard would, as a general rule, be sufficient to render void the act of its ministers: Hess v. Herrington, 23 P. F. Smith 438.
    The curative provisions of the Act of March 13th 1815 (6 Sm. Laws 301) do not apply to a sale by the commissioners of unseated lands bought by them at treasurer’s sale. Abundant authorities establish that county commissioners cannot sell at private sale, after the five years allowed for redemption have expired. They can, however, permit the owners to redeem after that period, and make deed to them: Steiner v. Coxe, 4 Barr 13; John and Paull v. Rush, 2 Harris 339.
    Under these last-cited authorities, we submit, the owners of this land had a right to redeem at any time up to a sale, as prescribed by the Act of 1824. Until then, the owners stood in the nature of debtors to the county, and it was not only the privilege but the duty of the commissioners to have received the .taxes from, and make deed to, the owners.
    May 7th 1877.
   Chief Justice Agnew

delivered the opinion of the court,

The precise point presented in this record, is the rejection of the deed of the commissioners of the county to Jay Gould, on the ground that the plaintiffs had not shown affirmatively, the publication of notice of the sale, pursuant to the provision in the Act of 29th March 1824. The deed recites the advertisement of a public 'sale at a certain time and place, an adjournment, and a sale by public vendue to Mr. Gould. The defendant in error would vary the question by referring to the terms of the second offer of the deed, as an admission that due publication had not been made. This fails to reach the true, question. The court having rejected the deed when first offered, because no proof had been given of the publication, the plaintiffs were forced to make a second offer in the hope of meeting the views of the court. Perhaps the offer did contain all the plaintiffs were then able to prove, after a lapse of eighteen years, but it does not follow that due publication had not been made. The simple question is whether the plaintiffs were entitled to give their commissioners’ deed in evidence.

Jenks v. Wright, 11 P. F. Smith 410, is no authority against this, for in that case the deed was received in evidence without objection, and the adverse party resorted to evidence to overturn it. It therefore simply decides that a commissioners’ deed regularly in evidence, may be shown to be invalid for a sufficient cause. The sale was private, and clearly void. The Act of 29th March 1824, provides that “ the commissioners of the several counties are hereby authorized to sell at public sale, all and any part or parts of the unseated lands which have been purchased for the use of the county.” The law having prescribed a public sale as the mode of exercising the authority, none other can be pursued. This follows from the general principles governing the performance of a mere authority coupled with no interest, and also from the duty enjoined by the Act of 21st March 1806, 1 Br. Purd. 58, pl. 5. So far the decision in Jenks v. Wright was that of the whole court. But when the learned and able chief justice passed beyond this point, he expressed his own opinion only. The case called for no decision on the question of publication. Publication, if made, would not sanction the invalid act of a subsequent private sale. But even the obiter dictum of a judge so able and experienced in tax titles, is entitled to weight; and therefore, while we leave the question open for future decision, we cannot suffer the occasion to pass without saying, that the effect of non-publication upon the validity of title was not decided in Jenks v. Wright.

Hoffman v. Bell, 11 P. F. Smith 444, had relation to the deed of a treasurer, not of the-commissioners. He had gone out of office, and of course had no authority to execute a tax deed. Hess v. Herrington, 23 P. F. Smith 438, is relied on. But the decision was against the objection made to the deed, and it repeated merely the general statement made in Jenks v. Wright, that sales by the commissioners are not within the curative provisions of the Act of 13th March 1815, and indeed merely meant that the act of a private person could not be cured, for it had no validity. But why does not the curative provision of the Act of 1815 apply to commissioners’ sales ? The answer had been already and forcibly given by C. J. Gibson, in Huston v. Foster, 1 Watts 478: “Because (he says) those sales were never in need of it, the common principle (viz., of strictness in adherence to authority), which it was intended to subvert, being inapplicable to a disposition by the owner himself.” After five years the title of the county is absolute, as held in many cases. It is shown very clearly by Chief Justice Gibson, in Steiner v. Coxe, 4 Barr 25, decided in 1846, and the first case, so far as I know, in which permissive redemption after five years was sustained. If the owner had a right to redeem after the expiration of the limit, his redemption would not be permissive. See also the following cases: Peters v. Heasley, 10 Watts 211; Kirkpatrick v. Mathiot, 4 W. & S. 254; Diamond Coal Co. v. Fisher, 7 Harris 267 ; Coxe v. Wolcott, 3 Casey 158 ; Russel v. Reed, Id. 169; City v. Miller, 13 Wright 456. But when divestiture of the owner’s title is involved, the curative provision of the Act of 1815 is applied even to sales by the treasurer to the commissioners : Peters v. Heasley, supra; Laird v. Hiester, 12 Harris 453. It should not be overlooked that the 2d section of the Act of 29th March 1824 expressly declares that the deed of the commissioners, when acknowledged before a justice of the peace, shall be good and valid to all intents and purposes for such title as the said commissioners had a right to convey. It must be borne in mind also that the authority to sell was not conferred by the Act of 1824, but first given by the 7th section of the Act of 1815. This section forbade a sale by them for less than the taxes, costs and accrued interest. A leading purpose of the Act of 1824 was to enable the commissioners to sell for the best price that can be obtained. The opinion in Jenks v. Wright suggests as a chief purpose of the Act of 1824, that notice to the former owners was required to enable them to exercise their permissive right of redemption. This is an anachronism. No such right was known, until established in Steiner v. Coxe in 1846.

Returning to the original question, the right to give the commissioners’ deed in evidence in the first instance, we may notice that Huston v. Foster was followed by other cases ruling the same point: Peters v. Heasley, supra; McCoy v. Michew, 7 W. & S. 386; Russel v. Reed, supra. The current of authority therefore is in favor of the presumption that a sale recited in the deed as regularly made, was made according to law. To the cases above cited we may add Coxe v. Deringer, 28 P. F. Smith 271, and Coxe v. Deringer, 1 Norris 236. It is true these cases did not go the whole length of the former decisions, the facts not demanding it, and Jenks v. Wright seeming to stand in the way. In the second case the opinion leaned more strongly against the dictum in Jenks v. Wright.

We are of opinion that a legal presumption arises from the recital in the deed, that the commissioners did their duty and made the sale according to law. The presumption is prima facie at least; whether absolute we need not decide.

Judgment reversed and a venire facias de novo awarded.