author: Mr. Justice Woodward

text:
    Coxe et al. versus Deringer et al.

    1. A treasurer’s sale in 1820 was made on the 8th of November, it did not appear that the sale had been, adjourned from the second Monday of June ; a deed was delivered in pursuance of the sale. The subsequent records in the commissioners’ and treasurei-’s office were made up as if the sale had been regular. Held, that the absence of entries of adjournment of the sale was a defect of form and an irregularity in the process and cured by the Act of 1815.
    2. Where possession of unseated land is not taken by the purchaser at treasurer's sale, the mere lapse of time proves nothing in favor of a title; the older the title without claim the weaker.
    3. Land was bought at treasurer’s sale by the commissioners; they executed a deed to a purchaser from, them, reciting the performance of all the conditions requisite to support the title conveyed; the proceedings wore spread on the records and their regularity not questioned by the county authorities. Held to be facts from which the jury might find that the directions of the Act of Assembly had been complied with.-
    4. The question was as to the validity of the title of a tract purchased at a tax sale: other tracts contiguous were treated as a single body and had also been bought at the same time by the same purchaser. Evidence that the taxes on all were charged in one account in the treasurer’s book, and other evidence affecting all the tracts similarly to the first was admissible, being of facts with which the first was inseparably connected.
    5. A deed recited a tax sale to the commissioners to have been made in 1828, in a book of the commissioners in which charges of taxes were made against the owner, there was a credit for the taxes dated in 1829 and a note that the taxes were ‘‘ paid before sale” twice made after the credit. Held, not to be evidence of the payment of taxes before the sale, to countervail the deed to the commissioners.
    6. The statement of official acts by a county treasurer in their appropriate places and correct order are evidence; but statement of a fact resting in his own or others’ recollection, will not weigh against his deed.
    March 12th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1874, No. 326.
    This was an action of ejectment for a tract of land in Sugarloaf township, in the warrantee name of Samuel Rope, containing 400 acres, brought, May 3d 1872, by Theophilus T. Deringer and others, against Charles S. Coxe and others. The plaintiffs are the heirs and legal representatives of Henry Deringer, deceased.
    The case was tried, February 6th 1874, before Harding, P. J.
    The plaintiffs gave in evidence warrant dated January 9th .1793, to Samuel Rope, and survey, October 4th 1793, for 372J acres and allowance.
    Commissioners’ Unseated Land Book for 1818 — Sugarlóae.
    372 acres, Samuel Rope, val. $372, tax, $1.86.
    For 1819, same. The books are called “ Commissioners’ Lists.”
    Assessment Books for 1818 and 1819 — Sugarloaf.
    1818— Rope, Samuel, 372 acres, no valuation, no tax.
    1819— Rope, Samuel, 372 acres, val. $372, tax, $1.86.

      Treasurer’s Sale Book for 1820 — Sugarloaf.
    Acres. 372 Warrantee’s name. Years. County tax. Costs. Total. Rope, Samuel, 1818 $1.86 Purchaser. Nov. 8
    1819 1.86 2.62J 6.34J Oom’rs
    [Cose v. Deringer.]
    Having given the foregoing in evidence, the plaintiffs offered the treasurer’s sale book and treasurer’s deed, showing the sale of the tract, November 8th 1820, to the county commissioners for the taxes of 1818, 1819.
    The defendants objected to the offer, because the sale was made on November 8th 1820, instead of on the second Monday of June, as required by law, and there is no evidence that there was an adjournment on the said second Monday of June, either from day to day or to a particular day, and the sale therefore was invalid.
    The offer was admitted, and a bill of exceptions sealed.
    The plaintiffs read deed dated December 2d 1820, from George M. Hollenbach, treasurer, to the county commissioners for the Samuel Rope, Sugarloaf, 372, sold for taxes of 1818, 1819. They gave in evidence:—
    Commissioners’ Land Book — for Lands bought at Treasurer's Sales of 1820.
    Sugarloaf.
    Taxes added.
    372 Warrantee name. Rope, Samuel, Ain’t of sale. $6.59i 1819 County tax. Road tax. 1.86
    1820 1.86 1.86
    1821 1.86 1.86
    1822 1.86 1.86
    1823 1.86. 1.86
    1824 1.86 1.86
    1825 1.86
    1827, June 5th. Deed, Henry Deringer; consideration, $34.04J; road tax, $11.16.
    1827, June 5th. Deed, Deodat Smith and others, commissioners of Luzerne county, to Henry Deringer for Rope, Samuel, 372 acres, reciting public sale of July 8th 1826; consideration, $34.04J; June 9th 1827, receipt of treasurer for bid, &c., attached. Patent, March 12th 1830, Commonwealth to Henry Deringer, for the Samuel Rope, containing 372 acres, reciting sale of treasurer to commissioners, and their conveyance to Deringer.
    The plaintiffs rested.
    The defendants gave in evidence: — ■
    The application, warrant and survey of the Samuel Rope tract, with certified copy of William Grey’s returns of surveys, April 28th 1794, including Samuel Rope. Deed, March 1st 1794, Samuel Rope to William Steedman, for above tract; proved October 19th 1839. Deed poll, September 31st 1794. Endorsed on the above, Steedman to Tench Coxefor the Samuel Rope tract; proved in 1839. Deed of assignment for benefit of creditors, March 20th 1801, Tench Coxe to Peter S. Duponceau and others, for all the lands of assignor, wherever situate; recorded in Luzerne county. Conveyances from his co-assignees having been made to Peter S. Duponceau, he, on the 9th of June 1828, conveyed to Charles Sidney Coxe. Admitted that Tench Coxe was dead, and that the defendants are his heirs and legal representatives.
    Defendants then gave in evidence:—
    Assessment Books for Sugarloaf Township for 1826 and 1827.
    1826— 372 acres, Rope, Samuel, commissioners, 1820, val. 372.
    1827— 372 acres, Rope, Samuel, commissioners, 1820. Commissioners’ Book of County Rates and Levies, 1826-27-28 — Sugarloaf.
    3827 — 372 acres, Rope, Samuel, val. $372, tax, $1.86. Supposed for 1828, 372, tax, 1.86.
    Under head of Reputed Owners, “ Commissioners, 1820, sold to Henry Deringer in 1826.”
    Commissioners’ List to Treasurer for 1826 and 1827 — Sugarloaf 372 acres, Rope, Samuel, val. for 1827, $372, county tax, $ir8{r.
    Under head of Reputed Owners, “ Commissioners 1820, sold to Henry Deringer in 1826 — road tax for 1827, $1.8fr.”
    1828. Deed, Zurah Smith, treasurer of Luzerne county, to John Bittenbender and others, commissioners of Luzerne county, for Samuel Rope tract, reciting sale for taxes, 25th Nov. 1828.
    Commissioners’ Book containing purchases of County Lands by Commissioners from 1816 till 1836.
    At treasurer’s sale of 1828, Sugarloaf Township.
    Acres. Warrantee name. Am’t of sale. Years. County. Road tax. Owners.
    372 Rope, Samuel, $4.48J 1828
    1829
    1830
    Taxes paid Treasurer. 1831
    1832
    1833
    Assessments — Sugarloaf Township — Unseated Lands.
    1832— 372 acres, Rope, Samuel, val. $372.
    1833— 372 acres, Rope, Samuel, val. 372.
    Commissioners’ List to Treasurer of Unseated Lands for Taxes of 1832 and 1833 — Sugarloaf Township.
    372 $372 Rope, Samuel, 1832 $1.86 -377~¶

    Valuation. Warrantee name. Years. County tax. State.
    1833 1,86 .S7r%

    Under head of Owners, “ Charles S. Coxe, not paid.”
    It was admitted that the treasurer’s sale-book for 1834 was lost January 9th 1841, and had not been in the proper office since.

      Deed, June 9th 1834, B. A. Bidlack, treasurer, &c., to Charles S. Coxe, for the Samuel Rope tract, acknowledged August 4th 1834. Treasurer’s receipts for taxes from 1840 to 1871, inclusive, paid by Charles S. Coxe on a number of tracts, including the Samuel Rope.
    Defendants then offered the sales-books of the treasurers of Luzerne county from 1838 to 1872, inclusive, to show that the custom of the county had been during that time to note all adjournments of treasurer’s sales on, the sales-books, and that no long continued custom had prevailed of adjourning sales with notice of the adjournment. The offer was objected to, rejected and a bill of exceptions sealed.
    They then gave in evidence from the commissioners’ sales-books, the amount of costs to commissioners on their purchase of the Samuel Rope tract in 1820, including purchase-money, interest, taxes to 1824, costs, &c., amounting to $34.04J- ; also, the sale to Henry Deringer in 1826, and deed June 5th 1827 ; they then rested.
    In rebuttal the plaintiffs offered to show from the records of the treasurer’s and commissioners’ office, that at the time the Samuel Rope contract was sold by the treasurer to the commissioners in November 1820, four other tracts were sold on the same day, in the names of John Brady, Jos. Brown, John McGrowan and Job Rope, and that at the sale of the commissioners, July 8th 1826, they sold these four tracts, with the Samuel Rope tract, to Henry Deringer. That Henry Deringer, after his purchase from the commissioners in 1826, paid the taxes on these several tracts, which belong to the same body and lie contiguous to each other, year by year, to the treasurer, until his death in 1868. That Henry Deringer resided in Philadelphia; that he kept his receipts for the payment of taxes on these several tracts of land all together in a place where he was accustomed to keep his valuable business papers in his dwelling-house. That after his death, by inadvertence, these receipts, with other papers, were destroyed; to be followmd by proof of witnesses, who saw the receipts for these lands, that they were receipts for the payment of taxes on these five tracts for a long series of years, covering the years for which they were sold at the treasurer’s sales, under which the defendants claim title in this case.
    Defendants objected to evidence of tax-sales of any tract but’ the Samuel Rope tract; but not to any legal evidence of payment of taxes on the Samuel Rope tract.
    The offer was admitted, and a bill of exceptions sealed.
    The plaintiffs then gave in evidence assessments in Sugarloaf township, on the lands of persons named in the offer, sales of the tracts by the treasurer to tire commissioners in 1820, and sales by the commissioners of the same tracts in 1827, to Henry Deringer ; also, certificate of connected draft of seven tracts, including Samuel Rope and the four tracts mentioned in the order. They then offered books from the office of the treasurer, purporting, as endorsed thereon, to be Zurah Smith’s. sale-books 1828 to 1830, containing the following entry:—
    Acres. Warrantee name. Year. Co. tax. B. tax. Costs. Am’t. Time of sale.
    372 Rope Samuel, 1827 $186 2.62J 4.48 Paid before
    Paid before sale. sale,
    for the purpose of showing that the taxes on the tract in controversy were paid before the sale, under which the plaintiffs’ claim took place.
    The defendants objected to the offer, because the entry on the treasurer’s book, that the taxes were paid before the sale, was not sufficient to contradict the deed from the treasurer to defendants. The offer was admitted, and a bill of exceptions Avas sealed.
    For the purpose of proving the loss of tax-receipts, the plaintiffs introduced testimony as follows :—
    W. H. Todd, son-in-law of Henry Deringer, testified: that he knew Deringer first in 1838; some time afterwards he asked witness to look at his receipts for taxes, relating to his five tracts of coal-land in Luzerne county — the Samuel Rope, Robert Brady, John McGrowan, Job Rope and Joseph Brown; he' gave witness the deeds for the tracts; the tax-receipts were among the papers given to witness. Witness then spoke of having employed Mr. Hakes as counsel, and of going on the ground to survey the lands; he gave the papers relating to. the survey to Deringer, and in 1848 gave the. papers, including the tax-receipts, at Deringer’s request, to Mr. Hakes and Mr. H. B. Wright, whom Mr. Deringer had employed as counsel in reference to the lands; the receipts he afterwards saw in a bundle at Deringer’s house; he never had had them since, and did not know into Avhose hands they passed; at that time Deringer kept his title-papers in a closet under a stairway in his front building.
    Calhoun M. Deringer, a son of Henry Deringer, testified that he was familiar with his father’s papers; he kept them in the closet under the stairway. In February 1868, Mr. Deringer, then sick in bed, received a letter from the treasurer of Luzerne county about the taxes; he directed his son-in-laAV, Dr. Clark, who oceu-' pied the house, and had the key of the closet and possession of his father’s papers, to bring up his tax-receipts and title-papers; he brought them up and laid them upon the table — commissioners’ deeds, two bundles of tax-receipts, &c. Dr. Clark wrote to the treasurer, explaining the receipts, and Mr. Deringer told him to take the bundles of tax-receipts to the closet. A few days after-wards Mr. Deringer received a letter enclosing a bill for taxes of the five tracts of land ; a brother drew a check and sent it up, and a few days afterwards the treasurer sent doAvn a receipt for the taxes of 1866 and 1867; the receipt was in the brother’s hands.. Dr. Clark held possession of Mr. Deringer’s papers till the fall of that year, when the brother’s widow moved into the house. In January 1872 witness asked his brother’s widow for the receipts: he did not get them; he had never seen them after Dr. Clark put them into the closet. When witness discovered that of the papers in the closet some had been burned and some scattered in the yard, he had all the papers in boxes, used for packing gun-barrels, brought to his house; he found two tax-receipts, two official letters from Colonel Bittenbender; one from Z. Smith, treasurer; in all about forty or fifty papers.
    Mrs. Deringer, widow of Bronaugh M. Deringer (a son of Henry Deringer), testified, that her husband had died in the August after his father, and in the next October she took possession of Mr. Deringer’s house, which had been occupied by Dr. Clark. Mr. Deringer’s papers had always been kept in the closet under the stairway; when she moved in she got the key of the stairway closet from Dr. Clark, and got it again from him in the spring following ; she did not disturb the papers until her brother-in-law, Theophilus T. Deringer, w'ho was acting executor, came to the house; she asked him what disposition she should make of the papers; he said his father owed nothing ; she could burn them or do what she wished with them ; she burned a good many, some were scattered around and taken to the factory, which was near the house in the yard. The closet had been kept closed during the winter; Dr. Clark had the key. She was present when the papers were brought to Mr. Deringer in his sick reom ; she stated the circumstances, as Calhoun M. Deringer had done. There was over a barrel full of letters, receipts and books in the closet; a portion were taken to the factory for packing; Mr. Deringer was very careful in preserving his papers; Dr. Clark died in 1869.
    Eliza Clark, widow of Dr. Clark, testified that in 1867 she went to her father’s house to take care of him ; she testified as the other, witnesses, as to the place he kept his papers, &c. In 1849 Mr. Hakes, her father’s counsel, came to the house and brought two bundles of papers with him and left them with her father ; she knew of the writing of the letter in 1868, and of the papers being returned to the closet.
    H. B. Wright, Esq., testified that when he prepared an opinion (which was shown him), he did not examine the commissioners’ office, but had papers before him submitted to him by Mr. Hakes; he could not state what they were.
    C. E. Rice, Esq., testified that he had read law with Mr. Hakes, who died in .1878 ; he had charge of Mr. Hakes’ papers ; he made search at two different times amongst his papers for those connected with the Deringer estate; Mr. Hakes had had a bundle of papers connected with the estate; they had been sent for.
    The plaintiffs then offered entries in the commissioners’ transcripts for the purpose of proving payment of taxes on all Deringer’s tracts in Sugarloaf township.
    The entries were:
    ' Page 100. “Henry Deringer to Luzerne county, Dr.”
    The charges on ■ the Brown, Brady, McGlowan and Job Rope tracts, in Sugarloaf township for 1827, 1828, were for county and road tax, each $6 ; then followed :
    Co. lid.
    “372 Rope, Samuel, Sugarloaf 1827 $1.86 1.86
    1828 1.86 5.58
    $29.58
    “ Cr. 10th Jan. 1829, by cash per J. Bittenbender, Esq., $29.58.” Page 105. Similar entries of 1828-1829, and same amounts ; also,
    “Cr. 5th Jan. 1830, by cash of J. Bittenbender, $29.58.”
    “ Paid and Posted.”
    Page 146, same entries for 1830-1831 ; the amounts on all were increased by including road tax for each year; the total footing up, $39.44
    “ Cr. 4th Jan. 1832, by cash per Col. Jno. Bittenbender, $39.44.” Gr. Nagle, clerk of the commissioners, testified that there was no book for 1832-1833 like the above-mentioned transcript-book.
    The defendants objected to the evidence on page 100, as the payment of taxes on the Samuel Rope tract shown by the entry being made on January 10th 1829, after the treasurer’s sale, could not affect such sale; also to evidence of payment of taxes contained in any of said entries on land other than the Samuel Rope tract; also, as to all for the purpose of proving a redemption of the sale from the treasurer to the commissioners in 1828.
    „The offer was admitted and a bill of exceptions sealed.
    The plaintiffs then proposed to ask W. H. Todd (before examined), for what years the tax-receipts were given that he had delivered to Mr. Hakes.
    The defendants objected, because there was no proper evidence of the existence, loss or destruction of the receipts, so as to introduce evidence of their contents, and that it was not shown that the witness had knowledge of the handwriting of the officers signing the receipts.
    The evidence was admitted and a bill of exceptions sealed.
    The witness testified that the receipts purported to be from the treasurer of Luzerne county for taxes from 1826 up to the time they had been handed to him, which was between 1838 and 1840 ; tax-receipts were after that time forwarded when written for and money paid; the chain of tax receipts was complete on the five tracts of land from 1826 to 1844. Mr. Deringer was a very particular man about his papers; the name of one treasurer was Smith, another was Williams; Bittenbender corresponded with Mr. Deringer at an early period; the receipts were for every two years.
    The plaintiffs then offered to prove by Calhoun M. Deringer that shortly before the death of Mr. Deringer, he saw in his possession sundry receipts for taxes on the five tracts, including the Samuel Rope, and to prove by him by whom the receipts purported to be signed and the contents.
    Objected to, because no sufficient preliminary proof had been given of the existence, search and loss of the receipts.
    The offer was admitted, and a bill of exceptions sealed.
    Witness had been in the habit of endorsing bis father’s receipts for some years previously to 1840 and from 1847 to 1850 ; he endorsed receipts on the lands, including the Samuel Rope; they covered the time from 1826 to 1840; he found three of the receipts that had survived the fire ; they were amongst the papers brought from the factory; each receipt covered two years; there were receipts in the closet from 1826 to 1849, which Dr. Clark had brought to his father’s room, when he was sick; up to about 1836 the receipts purported to be for taxes paid by John Bittenbender and Joseph Morgan, who were agents for his father. Witness had searched within six months at Morgan’s house through all his papers for papers connected with these lands, and found none. Morgan died in 1869 ; Bittenbender is dead ; he searched among his papers but found none; witness had a letter from treasurer Jayne concerning taxes on these lands for 1841-1842; he found also two or three checks payable to Luzerne county taxes ; also, a check of Mr. Deringer, dated October 29th 1861, to 0. Spencer, treasurer of Luzerne county, endorsed by him ; also, check dated November 9th 1863, for taxes to James Walsh, treasurer of Luzerne county; found also, amongst the rubbish, five check-books with marginal stubs. Receipt January 5th 1830. Z. Smith, treasurer for $29.58, taxes for 1828-1829, including Samuel Rope, per hands of J. Bittenbender. Letter, February 4th 1829, from Z. Smith, treasurer, to Mr. Deringer, saying that a statement which his letter contained showing payments on the five tracts — that on the Samuel Rope being $34.04J — was all that appeared on the county books, that Myers, a former treasurer, had accounted for on settlement, and that there was a deficit of taxes of 1826, as they were not in the transcript of sale ; the receipts given by Smith to Bittenbender included the county tax of 1827, and road taxes of 1827-1828. There was also a statement of taxes paid on the five tracts, including the Samuel Rope, for the years 1827-1828. S'mith then says in his letter, “ The foregoing is a transcript copy which I gave Mr. Bittenbender,” &c. Letter, February 27th 1842, W. S. Jayne to Henry Deringer, and accompanying check dated March 2d 1842 for $58.42 ; check October 29th 1861, to C. Spencer, treasurer, for $233, endorsed by him November 9th 1863. H. Deringer to J. Walsh, treasurer for $241.33, and endorsed by him.

      They then gave in evidence numerous entries from, “treasurer’s transcript-books of unseated lands,” containing statements of Mr. Deringer’s indebtedness to Luzerne county on the five tracts, including the Samuel Rope. That for 1888, 1839, amounted to $30.90 ; at the bottom of it is: “ 30th March 1840, received the above in full.” For 1840, 1841, the amount was $58.88 ; to this there was no receipt.
    The other statements were also each for two years, viz., 1842, 1843; 1858,1859; 1860,1861; 1862,1863; 1864,1865; 1866, 1867 — all having receipts as having been paid by Henry Deringer ; 1868, 1869, and school tax of 1867; 1870, 1871; 1872,1873— all receipted as having been paid by Theophilus T. Deringer, executor. It was .admitted that John Bittenbender was elected commissioner of Luzerne county in 1826.
    The following were points submitted by the defendants :—
    1. The law requires a sale of unseated land for non-payment of taxes to be made by the treasurer on the second Monday of June, or at subsequent days in pursuance of adjournment. And that as the sale under which the plaintiff’s claim was made on the 8th of November 1820, and as no evidence has been offered to show that any adjournment of the treasurer’s sale to that day was made at any previous day upon which the treasurer had power to sell, the sale on the 8th of November 1820 was invalid and the plaintiffs cannot recover.
    2. The curative provisions of the'Act' of March 13th 1815, do not apply to sales made by commissioners, and therefore as the plaintiffs have shown no compliance with the Acts of Assembly relative to the sale of lands by the commissioners, they cannot recover, and the verdict of the jury should be for the defendants.
    These points were refused.
    4. While the entry “ paid before sale ” on the treasurer’s sale book of 1828, unexplained by other evidence, might have been competent to be submitted to the jury upon the question of payment of taxes before sale, yet taken in connection with the entry in the commissioners’ transcript book, offered by the plaintiffs, and the letter from Zurah Smith, treasurer, dated 4th February 1829, also offered by the plaintiffs, all the evidence upon this point shows that the taxes were not paid until January 10th 1829, and such payment cannot invalidate the title acquired by the commissioners in 1828, and therefore the plaintiffs'cannot recover.
    The court answered : “ This point involves a question of fact and the jury under the instructions already given must determine it.”
    6. If the jury believe the taxes for which the land was sold, by the treasurer in 1828, were not paid before the sale, such sale would vest a title -in the commissioners, subject to the right of redemption by the former owner, and as no redemption took place within five years, and no permissive redemption was made thereafter the title of Henry Deringer was divested, and the plaintiffs cannot recover.
    8. There is no evidence from which the jury can find that the taxes for which the Samuel Rope tract was sold in 1884 were paid before sale.
    These points were referred to as answered in the general charge.
    The court, after referring to some preliminary matters, charged :
    * ■* * “ During the year 1818, and while the title to the land in controversy was held in trust, as I have before explained, the assessment book for Sugarloaf township, in this county, where the land lies, exhibits a return of the Samuel Rope tract with a content of 372 acres. The assessment book for the same township, in the year 1819, exhibits a return also of the same land, with a like content, and a valuation of $372. The assessment of a tax amounting to $1.86, by the proper officers, followed as a matter of course. No payment of this tax was made within the period prescribed by the statute; and, therefore, it became the duty of the treasurer on the second Monday of June 1820, having first given the requisite notice, to make a public sale of the whole tract for the unpaid tax, together with all costs necessarily accrued. [While, under the law, all sales of this character were to be commenced on the second Monday of June, still, authority was given to the treasurer to adjourn from day to day, if it should be found necessary so to do. The late George M. Hollenback was then treasurer of Luzerne county; and, if we are to judge from the official entries and from the documents themselves, the presumption is legitimate, indeed, irresistible, that the necessity for that sort of adjournment contemplated by the statute, then really existed. True, no note of adjournment from day to day was made by the officer either in the sale book, or elsewhere; true, also, the fact appears as well from the treasurer’s deed, as from an entry in the sale book, that he sold this tract of land on the 8th of November 1820. But, upwards of fifty-three years have elapsed since this official act was consummated. That all things were done in due form to warrant it, is a presumption now not to be resisted.]

      “ Again, under the law, it was the duty of the commissioners of Luzerne county whenever a tract of unseated land thus offered for sale by the treasurer, did not have bidden for it a sum equal to the amount of tax for which it was advertised, and the costs accrued, to bid off the same, and take a deed therefor for the use of the county. Such a contingency seems to have happened at that sale. At all events, George M. Hollenback, treasurer, on the 2d of December 1820, executed and delivered to Cyrus Avery, Joel Rogers and Samuel Tost, commissioners of Luzerne county, a deed containing the ordinary recitals, for the Samuel Rope tract. This deed, vested the title to the tract in the commissioners for the use of this county, subject only to the redemption right of the real owners, which had five years to run from the date of the treasurer’s sale. * * *
    “The commissioners of -Luzerne county held the Samuel Rope tract from the 8th of November 1820 until the 8th of July 1826, or during a period of five years and eight months. On the date last mentioned, Deodat Smith, Arnold Colt and John Bitten-bender, then commissioners, sold the Samuel Rope tract to Henry Deringer for the consideration of thirty-four dollars and four cents, as appears from the official record, and from the deed itself.
    “ The plaintiffs are conceded to be the representatives of Henry Deringer, now deceased. Their right to recover here must depend upon the strength of their own title, not upon the weakness of that of their adversaries. The sale by the commissioners, and the deed under it, constitute the very foundation of their title. But the validity of that sale is challenged, on the ground that there has been no affirmative showing of a compliance by the commissioners with the provisions of the Act of Maroh 29th 1824, giving them authority to sell, but requiring that notice of such authority, accompanied by a designation of the tracts to be sold, should be published, and that written or printed advertisements should also be put up. The commissioners’ land book shows nothing further in connection with the sale, than that it was made to Henry Deringer on the 8th of July 1826; the deed in pursuance of it is dated on the 5th of June 1827, and contains no more than the ordinary recitals in a deed of that character. This is the whole sum of the showing in respect to that sale.
    “ A question of great importance arises out of this state of things, It is, however, a question for the court, not for the jury. * * * That this commissioners’ sale was made by the proper officers, is not denied; that nearly half a century has passed by since it was consummated, is a recognised fact; that it was conducted under all the solemnities appertaining to official position, no one will now even attempt to gainsay; why, then, should not the rule, long ago become a maxim, ex diuturnitate temporis, omnia prcesumuntur rite et solemniter esse acta, apply, relative to compliance by the commissioners with the requisites of the statute authorizing such sales? The notices, designations of tracts to be sold, and the written or printed advertisements referred to in the statute, have rarely, if ever, been made matters of record, either here or elsewhere. And as the law stands now, however necessary it may be to produce proper evidence of them, to support a commissioners’ sale, made within a very short period, comparatively, it is very difficult, indeed, almost impossible to do so. But when upwards of forty-seven years have rolled by, the production of such proof must be recognised as an actual impossibility. * * * Again, it is a rule of law that an instrument in the nature of a deed, unblemished by any alterations, coming from a proper source, correct in form and execution, and more than thirty years old, is ancient; that it, therefore, proves itself, and the bare production of it is sufficient. Of course every thing about such a deed must be in favor of its genuineness ; it must be free from every just ground of suspicion. But are commissioners’ deeds to be outside of the pale of presumption altogether, no matter what their age or features may be ? Whenever such becomes the recognised rule, the flood-gates of litigation will be opened all around us. * * *
    “ [You have already been instructed, that the sale by the treasurer, on the 8th of November 1820, and his deed in pursuance of it, dated December 2d, following, to the commissioners, vested a good title to the Samuel Rope tract in the county of Luzerne. I now instruct you, that the sale of it by the commissioners on the 8th of July 1826, and their subsequent deed, dated the 5th of June 1827, to Henry Deringer, in pursuance of that sale, vested in the latter a good title to the land.]
    “Again, though the ownership of the Samuel Rope tract has thus been vested in Henry Deringer, the land continued to be unseated, and was, therefore, chargeable with taxes to the same extent, and in the same manner, as other unseated land of equal value. The assessment of a tax upon it by the proper officers, and the neglect of the owner to pay it for one whole year, rendered the land again liable to sale. The assessment book of Sugarloaf township for the year 1826, shows a return of the Samuel Rope tract as unseated, with a content of 872 acres, and a valuation of $372. The assessment book of the same township for the year 1827, exhibits a similar showing. The book of commissioners’ rates and levies for the year 1826 and 1827, shows a like content of acres in the tract, a valuation of it for the latter year of $372, and the assessment of a tax upon it, amounting to $1.86. Under the head of reputed owners, a brief entry occurs which would seem to indicate that the tract had been sold to the commissioners in 1820, and to Henry Deringer in 1826. However, on the 15th of December 1828, pursuant to this assessment, and the alleged non-payment of the tax within the statutory limit, Zurah Smith, then treasurer, sold the land to John Bittenbender, Isaac Harding and William Swetland, commissioners of the county of Luzerne. The treasurer’s deed of that date, containing the usual recitals, has been given in evidence.
    “ If there had been no further showing with respect to this sale, I should be obliged to say that the title of Henry Deringer to the Samuel Rope tract had been divested by virtue of it; and that the plaintiffs, therefore, could not recover in the present action. The treasurer’s sale-book for 1828, containing the names of the tracts of unseated land to be sold for taxes that year by the treasurer, has been put in evidence. The Samuel Rope tract is among them. The number of acres, and the assessment of a tax corresponding with the assessment-book of Sugarloaf township for 1827, and with the book of commissioners’ rates and levies for the years 1826 and 1827, are set out in the usual form. The entry on the left-hand page of that book is as follows: ‘Acres 372 — Rope, Samuel — year 1827 — county tax $1.86 — costs $2.62| — amount $4.48^.’ On the same page, and directly under this entry, are the words, ‘ Paid before sale.’ And on the opposite page, in a column set apart for the name .of any purchaser, is also entered the words, ‘Paid before sale.’ But nowhere in the book is there an entry, showing that the tract was sold that year, by the treasurer to the commissioners. The treasurer’s deed-book, however, does show that such a sale was made, namely, on the 15th of December 1828.
    “ Now, if the tax of 1827 was ‘ paid before sale,’ as the treasurer’s sale book indicates, Zurah Smith, the then treasurer, had no authority whatever to sell the land to the commissioners, or to anybody else; and, no matter though he did so, and executed and delivered a deed accordingly, it was a harmless proceeding altogether and did not affect the title of Mr. Deringer at all. But another book has been put in evidence, called the commissioners’ transcript-book. This seems to be a book which might properly be denominated an account-book. It contains the account of unpaid taxes for every two preceding years on unseated land, charged up against the respective owners. For the years 1827 and 1828, Henry Deringer is charged with the taxes assessed upon the several tracts of land owned by him in this county. Among them is the Samuel Rope; and, for the year 1827, a tax of $1.86 is marked as having been assessed against it, and is charged up against My. Deringer. This is the same tax for which Zurah Smith, the treasurer, made the sale to tbe commissioners on the 15th of December 1828. The credit side of Mr. Deringer on this book, contains an entry as follows: ‘ 1829 January 10th, by cash, pr. J. Bittenbender, Escp, $29.58,’ being the sum of the taxes for 1827 and 1828, assessed upon all the unseated lands of Mr. Deringer in the county, and charged up against him. The aggregate, $29.58, includes the^tax of $1.86, assessed against the Samuel Rope tract in 1827. If this tax was not paid until the ‘ 10th of January 1829,’ as shown by the commissioners’ transcript-book, the treasurer’s sale to the commissioners was good, and the title of Mr. Deringer to the Samuel-Rope tract was divested by it. Payment of a tax, for which a treasurer’s sale is about to be made, prior to the sale, saves the title of the owner, no matter what the treasurer may do after-wards ; but payment of the same tax, after the treasurer has made the sale, accomplishes no such result, neither does it work a revocation of the title conveyed.

      “ The treasurer’s sale book and the commissioners’ transcript-book are records. Such books ordinarily import verity in respect to all matters legitimately made the subject of entry in them. The construction of such entries is usually for the court, not for the jury; but here the entry in one book is at variance with the entry in the other ; here the matter of record in one, continues the existence of a title, while the matter of record in the other extinguishes it, and gives validity to another. Under such circumstances, the question arises, which of the two records is correct? The disposition of the question is for the jury, under all the evidence bearing upon the point. * * *

    “ The character of the Samuel Rope tract continued unchanged long after the year 1828. It was unseated land, and, therefore, liable to taxation and its incidents, as it had been previously. It is not material how the proper officers for assessing taxes may have regarded the title. The commissioners seem, however, to have regarded it as vested in the county of Luzerne, by virtue of the treasurer’s sale in 1828. Their record containing a list of the unseated lands purchased for the county, from 1816 to 1836, indicates that fact. Taxes were assessed upon it, however, for the years 1828 and 1829, and were charged up against Mr. Deringer in the commissioners’ transcript-book. Similar taxes for the years 1830 and 1831 were assessed, which were likewise charged in the same book against Mr. Deringer. The former he paid on the 5th of January 1830; the latter on the 4th of January 1832. This fact is shown by the proper record, The assessment-books of Sugarloaf township for the years 1832 and 1833, respectively, show a return of the Samuel Rope tract as unseated land, having a content of 372 acres, and a valuation of $372. For the year 1832, a state tax of 37t2¡j cents, and a county tax of $1.86, were assessed upon it. For the year 1833, a tax similar in character and amount was also assessed upon it. And so far as any record evidence to the contrary is concerned, the sum of these taxes remained unpaid for more than one year after -the time of their assessment. Whereupon, B. A. Bidlack, treasurer of the county, on the 9th of June 1834, sold the tract to Charles S. Coxe.
    “ This sale raises another important question in the case. And being purely a question of fact, the disposition of it, under all the testimony bearing upon it, will be for you. If you shall find, precedent to its consideration, that the treasurer’s sale of the Samuel Rope tract to the commissioners in 1828, vested in them, for the use of the county, a good title, although under the law, the land should have remained the property of the county'for a period of five years, subject to redemption by the owner, but exempt from sale- by the treasurer for taxes assessed and unpaid in the meantime ; yet, if Mr. Deringer, from any cause, neglected to pay the taxes of 1832 and 1833, based as they were, upon a return and valuation, the sale by Mr. Bidlack, the treasurer, in 1834, though irregular, passed the title to Charles S. Coxe. Payment by Mr. Deringer, within five years from the date of the treasurer’s sale in 1828, of the taxes on which that sale was based, together with the interest and costs, and payment by him also of all the taxes assessed upon the tract, together with interest, during that period, would have entitled him to a reconveyance by the commissioners. If this was not done, his title was irrevocably gone. Payment of a part of the taxes assessed in the meantime, such as those of 1828, 1829, 1830 and 1831, was not sufficient.
    “ It is claimed on the part of the plaintiffs, however, not only that the treasurer’s sale in 1828 was invalid, because the taxes on w'hich it was based had been ‘ paid before sale,’ but that the treasurer’s sale in 1834 was invalid also, and for the same reason. As has been seen, the commissioners’ transcript-book shows the payment of the taxes by Mr. Deringer for the years 1828, 1829, 1830 and 1831; but there is no showing in that book, or, indeed, in any other book or record in the commissioners’ or treasurer’s office, that the taxes of 1832 and 1833 were paid by Mr. Deringer, or by anybody else. George M. Nagle,- the present clerk of the commissioners, testifies that he has made a thorough search of the office, and that the commissioners’ transcript-book, now before us, is the only one of the kind remaining there,-in which an account similar to that with Mr. Deringer and others, already referred to, appears to have been kept of the unpaid taxes on unseated land, from the year 1831 to the year 1838. Since that time, however, similar accounts have been continued. It has been admitted that the treasurer’s sale book for 1834 disappeared from the proper office as long ago as January 1841, and that no trace of it has been discovered since that time. Along with that admission, came a general recognition by counsel on both sides, that there had been official misdoing with the records of the commissioners’ and the treasurer’s office, covering a period intervening between 1834 and 1840 ; that incumbents of the latter, .during that period, had been charged-as defaulters; and further,-that one of them had been prosecuted in the criminal court for the more serious offence of-stealing the missing books or records.
    “Were the taxes of 1832 and 1833, upon the Samuel Rope tract paid by Mr. Deringer prior to the treasurer’s’ sale in 1834 ? Usually, when the owners of unseated lands pay the taxes assessed from year to year upon them, the officer receiving the money not only makes an entry of payment in the proper record, but he gives a receipt designating the tracts upon which the taxes have been paid, the number of acres contained in them, the years for which the taxes were assessed, and the character of them, whether state, county, road, school, and the like. The production of the receipt at any time afterwards, duly authenticated, is as operative to establish the fact of payme.nt as the record itself.
    “ So far, however, as payment of the taxes upon the Samuel Rope tract, by Mr. Deringer, assessed during the years 1832 and 1833, is concerned, we have seen that there is no record indicating it. More than that, the plaintiffs have produced no receipt vouching their payment. They allege, it is true, the existence of such . a receipt, given by the proper officer, and at the proper time, during a period of thirty-five years, or until about the year 1869, when, together with others of the same character, but for later years, it was destroyed by fire, or otherwise inadvertently lost.
    “ Receipts of a public officer, like a county treasurer, purporting tó be over thirty years old, fall within the category of ancient documents. Their existence in the hands of the proper custodian at one time, and their subsequent destruction or loss, having both been satisfactorily established, secondary evidence concerning them becomes admissible.”
    The judge then recapitulated the evidence given to prove the existence and loss of the tax-receipts, and said, in conclusion :—
    [“ I have now called your attention to the prominent features of this case, and have also recounted a large portion of the direct testimony in connection with it. While the witnesses on the part of the plaintiffs, or the more important ones, at least, are parties to the case, and therefore directly interested, yet, under the law, they are competent witnesses. You have seen them upon the stand; you have heard them testify; you have noticed their manner of testifying; you have been aware of their interest: their credibility is for you. I have only to say, that if Henry Deringer was the particular and careful old gentleman about his titles and his papers, as represented by these witnesses; if he did pay the taxes assessed upon the Samuel Rope tract in 1827, before the treasurer’s sale of it, in 1828; if he did, also, pay the taxes assessed upon it in 1832 and 1833, before the treasurer’s sale of it, in 1834; 'if the record evidence of the latter payment was destroyed by a defaulting public officer in the attempt to blot out traces of his own wickedness and crime; if the receipt, too, vouching such payment was burned in the fire, kindled for a most unusual purpose, in 1869; then it would be simply monstrous if his children and descendants should be ravished of their inheritance. But unless you shall be clearly satisfied, from all the evidence in the case, that the taxes upon the Samuel Rope tract for the year 1827, and for the years 1832 and 1833, also, were paid before the treasurer’s sales were made, the plaintiffs are not entitled to recover.]

      “ To recapitulate: I have instructed you that the treasurer’s sale, in 1820, was good, and vested a valid title to the Samuel Rope tract in the commissioners, for the use of the county; I have also instructed you that the commissioners’ sale, in 1826, was good, and vested a valid title to the Samuel Rope tract in Henry Deringer: if, therefore, you find that the taxes for 1827 were ‘paid before sale’ by the treasurer in 1828, and further, that the taxes for 1832 and 1833 were also paid before sale by the treasurer in 1834, then your verdict should be for the plaintiffs for the land described in the writ; if otherwise, your verdict should be generally for the defendants.”
    The verdict was for the plaintiffs.
    The defendants took a writ of error, and assigned for error:—
    1. Admitting in evidence the treasurer’s sale book and deed, showing sale on 8th of November 1820 to the county commissioners.
    2. Rejecting the offer of the sales books of the treasurers of Luzerne county, to show that there was no long-continued custom of .adjourning sales without notice of it.
    3. The part of the charge first enclosed in brackets.
    4. The answer to defendants’ first point.
    5. The part of the charge secondly enclosed in brackets.
    6. The answer to defendants’ second point.
    7. Admitting evidence to show that the four other ■ tracts were sold to the commissioners by the treasurer with the Samuel Rope tract, and that the commissioners sold them on the same day with the Samuel Rope tract to H. Deringer.
    8. Admitting the book purporting to be the treasurer’s book of Zurah Smith.
    9. - Admitting the entries in the commissioners’ transcript, for the purpose of showing payment of taxes on the Samuel Rope tract after the sale of the treasurer to the commissioners.
    10. Admitting Todd to testify for what year the tax receipts which he delivered to Mr. Hakes were signed.
    11. Admitting Calhoun M. Deringer to testify that he had seen in H. Deringer’s possession receipts for taxes on the five tracts.
    12. 13, 14. The answers to defendants’ 4th, 6th and 8th points.
    15. The part of the charge lastly enclosed in brackets.

      F. B. (xowen and A. T. MeOUntoch, for plaintiffs in error.—
    To sustain a treasurer’s sale of unseated land for taxes, there must be a proper assessment; taxes unpaid for one year and a public sale: Cuttle v. Brockway, 8 Casey 45; Bratton v. Mitchell, 1 W. & S. 310. The assessment must identify the land : Dunn v. Ralyea, 6 W. & S. 475 ; City v. Miller, 13 Wright 440 ; Lyman v. The City, 6 P. F. Smith 488. The sale of tracts separately assessed as one tract passes no title: Morton v. Harris, 9 Watts 319. The Act of 1815, curing irregularities, does not apply to commissioners’ sales; Jenks v. Wright, 11 P. F. Smith 410 ; Hess v. Herrington, 23 Id. 438. Evidence of payment of taxes for years prior to those for taxes of which the land was sold is inadmissibie : Ankeny v. Albright, 8 Harris 157 ; Kennedy v. Daily, 6 Watts 269 ; Beale v. Commonwealth, 7 Watts 183. The evidence of existence of receipts, loss, search, &c., was not sufficient to give their contents: Porter v. Wilson, 1 Harris 641.

      S. Woodward and S. Linn (with whom was 0. JDeringer), for defendants in error.
    The evidence to admit proof of the contents of the receipts was sufficient: McReynolds v. Longenberger, 7 P. F. Smith 30. The presumption is that the treasurer’s sale was according to law: McCoy v. Michew, 7 W. & S. 389; Huzzard v. Trego, 11 Casey 9. The same inferences and presumptions will apply to a sale to the commissioners as to any other person: Peters v. Heasley, 10 Watts 208; Laird v. Hiester, 12 Harris 452. Evidence of payment of taxes, &c., on other contiguous tracts belonging to Deringer was admissible: Woodside v. Wilson, 8 Casey 58. The search was sufficiently diligent: 1 Greenl. Ev., sect. 558; Spalding v. The Bank, 9 Barr 28 ; Hemphill v. McClimans, 12 Harris 367; Elinn v. McGonigle, 9 W. & S. 75; Ardesco Oil Co. v. Gilson, 13 P. F. Smith 152. In the absence of proof that the requisites have not been performed, and where the proceedings are consistent with due regularity, the law will, after a lapse of thirty years, presume that all the requisités were complied with. There is nothing to which the maxim, omnia preesumuntur rite esse acta, applies with so much force as to a tax title: Cuttle v. Brockway, 12 Harris 147; Heft v. Gephart, 15 P. F. Smith 510; Robins v. Bellas, 4 Watts 255; Alexander v. Bush, 10 Wright 62; McCoy v. Michew, 7 W. & S. 389 ; Lackawanna Iron Co. v. Fales, 5 P. F. Smith 90; Best on Presumptions 78, sect. 67 ; Morton v. Harris, 9 Watts 322; McHenry v. McCall, 10 Id. 456. The continual claim for a period of nearly fifty years, with acts of ownership and payment of taxes, taken in connection with the long-continued non-claim on part of the defendants, and many other circumstances surrounding the case, afforded testimony amply sufficient to warrant a jury in finding that the taxes of 1832 and 1833 were paid before the sale: Alexander v. Bush, 10 Wright 62; Iddings v. Cairns, 2 Grant 88; Bartholomew v. Leech, 7 Watts 472 ; Devor v. McClintock, 9 W. & S. 80 ; Lackawanna Iron Co. v. Fales, 5 P. F. Smith 90. The presumptions from the evidence to show payment of taxes of 1832, 1833, were presumptions of fact which it was the duty of the court to submit to the jury: Reynolds v. Richards, 2 Harris 208; Tanner v. Hughes, 3 P. F. Smith 289; First Nat. Bank of Bellefonte v. McManigle, 19 Id. 156; Best on Presumptions, sect. 27, page 32; Alexander v. Bush, 10 Wright 62; Steiner v. Coxe, 4 Barr 13.
   Mr. Justice Woodward

delivered the opinion of the court, May 10th 1875.

The cases of Cuttle v. Brockway, 12 Harris 145, Iron Co. v. Fales, 5 P. F. Smith 90, and Heft v. Gephart, 15 P. F. Smith 510, have closed against all debate the question of the application of the maxim omnia prcesumuntur esse rite acta to tax sales under the Act of 1815. The ground of the objection made by the defendants below to the deed to the Luzerne commissioners of the 2d of December 1820, was that the sale had not been made on the second Monday of June, nor on any other day to which it was shown to have been adjourned. The fourth section of the Act of 13th of March 1815, declares that “ no alleged irregularity in the assessment or in the process shall be taken or construed to affect the title of the purchaser” of unseated land for taxes, “but the same shall be declared to be good and legal.” The sale in this instance was made on the 8th of November 1820. The deed was delivered in pursuance of it. No action of ejectment was brought by the owner within the statutory period of five years. The subsequent records in the offices of the commissioners and treasurer were made up on the assumption of the regularity of the proceedings. The deed recited the offer of the land “ for sale agreeably to law.” The absence of entries of adjournment from day to day was a defect of form and detail. It was “irregularity in the process,” and not the omission of any essential requisite to support the title the commissioners acquired. The facts made out a case to warrant at least such a binding direction to the jury as was given in Huzzard v. Trego, 11 Casey 9, that they ought to presume the adjournments to have been duly made. In the absence of countervailing proof, there was no substantial error in the peremptory instruction to that effect in the charge of the court below.

In disposing of the questions relating to the sale by the commissioners to Henry'Deringer on the 8th of July 1826, too much significance was attributed to lapse of time. If possession of the land had been taken by Deringer, the long period intervening between the date of the sale and the date of the trial, would perhaps have áfforded, with the other evidence in the cause, ground for assuming that the formal provisions of the Act of 1824 had been complied with, as á presumption of law. It certainly would have warranted a charge that such a compliance ought to be inferred by the jury, as a presumption of fact. But “ mere lapse of' time,” it was said by Lowrie, C. J., in Alexander v. Bush, 10 Wright 62, “ proves nothing in favor of a title, for the older it is,, without any claim being made under it, the weaker it is, and the-weaker are all presumptions in its favor.” It is true that Read v. Goodyear, 17 S. & R. 350, decided that, where land is sold for-taxes and the warrantee makes no claim for twenty-one years, and pays no taxes during that time, it may be left to a jury to presume-ouster or abandonment by him; and that length of time strengthens a title founded on a sale for taxes. In Sorber v. Willing, 10 Watts 141, however, the facts in Reed v. Goodyear were said by Gibson, C. J., to have been indistinctly stated, and among them was the omitted fact that there had been an entry by the purchaser at the treasurer’s sale. The curative provisions of the Act of 1815 were held in Jenks v. Wright, 11 P. F. Smith 410, not to be applicable to a sale by county commissioners under the Act of the 29th of March 1824. The evidence in this case did not warrant the assertion by the court of the regularity and validity of the sale to Deringer as a presumption of law. But there was proof of the payment of the taxes from 1826 to 1840. At the time of the sale the land was the property of the county, and as such the commissioners conveyed it. The deed executed by them on the 5th of June 1827 recited the performance of all the conditions requisite to support the title they conferred on their grantee. The proceedings were spread upon the county records, and their regularity has never been assailed by the county authorities. All these were facts for the consideration of the jury, and under them they should have been left at liberty to find whether the directions of the Act of Assembly had been duly pursued, and whether the title of Deringer was, therefore, valid.

With the remark that the evidence offered by the defendants to prove that all adjournments of treasurers’ sales have been noted on the sales-book since the year 1838, was irrelevant to any apparent issue in the cause, what has been said disposes of the first six specifications of error.

The general offer by the plaintiffs, to which the seventh assignment of error relates, was unobjectionable. Under it there was, perhaps, no necessity for showing the date of the purchase of the four tracts other than the one in controversy belonging to Deringer, and the deeds for them, but this could not have led to any confusion or embarrassment on the trial. The five tracts were treated as a single body of land, and each tax-receipt related to them all. The evidence affecting the Samuel Rope tract involved a reference to the others, and it was admissible, as evidence is always admissible of extraneous facts with which the subject-matter of a suit is inseparably connected.

The eighth, ninth, twelfth and thirteenth specifications are founded on the rulings of the court in regard to the sale of the land in controversy by the treasurer to the commissioners in 1828 for the taxes of 1827. The deed recited the sale to have been made on the 25th of November 1828. If it was valid, it divested the title Mr. Deringer had acquired by his purchase in 1826, and an outstanding title, as to him at least, was subsisting in the county of Luzerne when the cause was tried. The books showing the assessment and the deed were given in evidence by the defendants. In their rebutting case, the plaintiffs showed what is called in the record a “ commissioners’ transcript-book,” containing a charge against Mr. Deringer’s five tracts for taxes for the years 1827 and 1828, amounting to $29.58, the charge against the Samuel Rope tract being $5.58, made up of county and road taxes, each $1.86 for 1827, and $1.86 road tax for 1828. At the foot of the statement there is a credit of the entire amount of the charge dated the 10th January 1829. The treasurer’s sale book for the year 1828 was also produced by the plaintiffs, and the entry of the Samuel Rope tract on that book was permitted, under exception, to be given in evidence. The words “ paid before sale” were twice written, on the right and left margins of the entry. In the commissioners’ book of county rates and levies for 1826,1827 and 1828, the tract had been charged with taxes amounting to $3.72, and in the commissioners’ list to the treasurer for 1826 and 1827, a county tax for 1827 of $1.86, and a road tax for the same year and of the same amount were stated to be due. A pen appeared to have been drawn at some time through the figures “ 1.86” in both places where they occurred in this last book. This evidence was submitted to the jury on the question of the payment of the taxes of 1827 before the sale to the commissioners. The regular, authorized and authentic entry in the transcript-book showed the payment to have been made on the 10th of January 1829. The very language of the entry on the sale-book implied that it was made after the sale had taken place. It is said to be in the handwriting of Zurah Smith, the treasurer at the time. Let that be so, and it does not help the use of an unwarranted and illegal endorsement on a public record as evidence of a substantive and material fact. The entry was out of time and out of place. It was made after the sale, to which the treasurer had certified by his solemn deed. It was in contradiction of the explicit written statement of the credit appearing in the transcript-book. It was not an act done in the course of the current business of his office — it may have been made years after the transaction — from his letter to Deringer; it is not credible that he made it before the 4th of February 1829 — and it depended for its accuracy perhaps upon the recollection or declarations of other parties, or upon his own memory at the very best. No direct authority, is found upon this question. In Kennedy v. Daily, 6 Watts 269, all that was decided was, that when the word “ paid” appears on the margin of the entry of a tract of land in the treasurer’s sale-book, the purchaser could prove that the word was written after the sale, and that the same entry was usually made after the sale as well as before. In Ankeny v. Albright, 8 Harris 157, the letters “pd.” on the treasurer’s book were held to be no evidence' of themselves, that the taxes were paid before the sale. In the last case two former county treasurers testified that they always marked the taxes in this way after the land was sold and the money paid by the purchaser, and that they always marked them in the same way when paid at any time. But it is manifestly essential to the security of property that muniments of title and .public records should be free from the hazards that would be involved in making evidence of legends like this. It was no part of the duty of Zurah Smith to endorse his recollection of past events on any of the books the law required him to keep as treasurer of the county. His statement of official facts in their appropriate places and their current order would be evidence always. His statement of a fact that rested only on his own recollection, or that of others, was not entitled to be weighed against his formal deed and a distinct, explicit and authentic record.

The admission of the evidence to which the tenth, eleventh, and fourteenth assignments of error apply, was warranted by the authority of McReynolds v. Longenberger, 7 P. F. Smith 13. Other questions aside, the sale in 1834 to Charles S. Coxe vested the title to this land in him, if the taxes for the years 1832 and 1833 were not paid. The plaintiffs were permitted to prove the existence of receipts for taxes from 1826 to 1840 by witnesses who had seen them, the loss of the receipts themselves being alleged. While such testimony is admissible, it is exceptional in its character, and is capable of producing unjust results. It should be submitted to a jury under carefully guarded and measured instructions as to the precise point in dispute. That point here was the payment, before the sale of 1834, of the taxes for the two preceding years. As the cause must go back on other grounds, it is not necessary to express an opinion as to the sufficiency of the preliminary proof that was made of the search for, and loss of, the papers. But Dr. Clark, one of the executoi’s of Henry Deringer, had possession of the key of the closet containing the receipts for more than a year, and not only had access to them, but had charge of, and was responsible for, them. The necessity for some examination of his papers would seem clear. No evidence in the record traced these papers to the hands of the other executor, Theophilus T. Deringer. Still, applications for such documents to executors or their representatives is, in all cases, a proper and safe precaution.

Everything involving substantial error that was embraced in the part of the charge to which the fifteenth assignment applies, has been adequately discussed.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Erie Railway Company versus Decker.
    1. In an action against a railroad company for burning a house, it was alleged that the fire was communicated by engine No. 458, which was not in a proper condition. Held, that the condition of that engine and its management were all that was to be considered.
    2. If that engine was properly constructed, the company would not be liable, although the burning was occasioned by fire accidentally issuing from it.
    3. Evidence to prove defects in other engines of the company was irrelevant, and should have been excluded.
    4. On cross-examination, the inspector, who had been examined only as to 458, testified that he had sometimes found broken grates, but none within three years. Held, this answer was irrelevant; that the plaintiff was bound by it and could not contradict it by showing that broken grates had been found within that time.
    March 15th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.
    Error to the Court of Common Pleas of Pike county: Of January Term 1874, No. 832.
    This was an action on the case, brought September 1872, by Daniel Decker against The Erie Railway Company. The following was the cause of action :—
    The house of the plaintiff, which stood near the track of the defendants’ railroad at Shohola Station, in the county of Pike, between Port Jervis and Lackawaxen, was destroyed by fire on the 6th of March 1872; the plaintiff alleged that the fire originated from sparks thrown from locomotive engine No. 458, belonging to the defendants, which passed his house about the time the fire commenced, and that the throwing of the sparks was from the negligence of the defendants in not having their apparatus in proper order.
    The case was tried December 18th 1873, before Dreher, P. J.
    The plaintiff testified, that his house caught fire between twelve and one o’clock p. M.; before the alarm of fire a train, moving east, passed the house ; the house was entirely consumed and almost everything in it. By other witnesses it was testified that in five minutes after the train passed the fire was discovered; there had been other trains running that day ; none had passed between that of which he spoke and the breaking out of the fire.
    For the defendants, Alfred Carpenter, the engineer of No. 458, testified, that he passed plaintiff’s building about one o’clock in the afternoon of March 6th. The engine had been recently built and had come new from the locomotive works at Scranton about February 1872 ; when it came from the shop it had a stack used for burning soft coal; it was shortly afterwards changed to a stack for burning hard coal, and a grate put in after the 1st of March ; it was the standard grate used on the Erie road; of the best kind in use; nothing more could have been done in passing through Shohola to prevent the throwing of coals than was done; he had never known the engine to set fire to anything; he looked into the stack when the grate was put in; ■ and also the day after the fire, and the grate was still there.
    E. C. Beirne, stack-inspector of the defendants at Port Jervis, testified, that he examined the stack of No. 458 on the 5th of March 1872, and found it in complete order; he did not examine it on the 6th, but did on the 7th of March, and found it in good condition; so on the 8th and 12th of March; on the days it was not inspected it did not arrive during hours of inspection; the netting and grate were' alike good for arresting sparks and for safety.
    In addition to the cross-examination, which appeared on the notes of testimony certified by the judge below, the paper-book of the plaintiffs (defendants in error) gave the following as part of the cross-examination of Beirne : “ On-the 1st of March No. 458 had no grate ; I saw a grate in on March-the 5th; sometimes find broken grates; have' not found any in three years; a grate will last eight months to a year.”
    The defendants gave-'other evidence, for the purpose of showing that the engine was in perfect condition ; had been run carefully, and that the fire had originated inside of the building; and generally in answer to the plaintiff’s case.
    In rebuttal, the plaintiff offered to prove that within the past three years they have seen netting taken from the smoke-stack of a locomotive running between Honesdale and Port Jervis (Hawley Branch), and thrown away, and the engine running without it. This is offered to contradict the stack-inspector, who swore that no such thing had occurred within’ three years; also, that they have seen lumps of coal thrown from the smoke-stacks as large as hickory-nuts within samé time.
    It was objected that it was not competent to prove what had occurred on Hawley Branch, and that the evidence ofi'ered was not ■ rebutting.
    The offer was admitted and a bill of exceptions sealed.
    Several witnesses testified in accordance with the offer.
    The verdict was for the plaiiitiff-for $54429.23.
    The defendants took a writ of error,- ¿nd assigned for error the admission of the foregoing evidence..-’

      W. FT. Jessup, for plaintiff in error.
    A party will be held to the purpose for which the evidence was offered:' Benner v. Hauser, 11 S. & R. 356; Gaines v. Commonwealth, 14 Wright 326; Piper v. White, 6 P. F. Smith 94.- Evidence to show that other engines were defective was incompetent to prove ■ that No. 458 was: Waugh v. Shunk, 8 Harris 130; Carson v. Godley, 2 Casey 111. error. — It is discretionary with the court below what evidence to admit in rebuttal: Young v. Edwards, 22 P. F. Smith 265; Gaines v. Commonwealth, 14 Wright 319.

      6r. (?. Waller (with whom was F. M. Crane), for defendant in
   Mr. Justice Gordon

delivered the opinion of the court, March 22d 1875.

It appears from the evidence, and it was conceded in the argument, that the only locomotive that could have fired the premises in question was that numbered 458, in charge of Alfred Carpenter, as engineer. It follows, therefore, that the condition of this engine and its management were all that were legitimately before the court. If it was properly constructed as to its furnace and smokestack, and was furnished with a spark-arresting grate of the proper character, the company would not be liable, though the building were burned by fire accidentally issuing, from it: Railroad Co. v. Doak, 2 P. F. Smith 379. If, then, this engine was in a proper condition, it mattered not that every other engine, owned by the company, was without the proper appliances for preventing the ejection of coals and sparks. On the other hand, if this engine was dangerous, in this respect, it was of no consequence that all others upon the road were safe. Such being the case, it is manifest that all evidence going to prove defects in engines belonging to this company, other than the one alleged to have produced the injury complained of, was irrelevant to the issue pending, and should have been excluded. It is alleged, however, that this evidence was relevant as tending to contradict certain general statements made in the testimony of Edward C. Beirne, the defendant’s stack-inspector. But we find nothing whatever in that testimony, as certified to us by the judge below, which tends to support such an hypothesis. No allusion is made by Beirne to any engine but No. 458.

If, nevertheless, we consider that which we are not bound to consider, to wit: the testimony reported in the counter-statement, taken from the notes of the counsel for the defendant in error, we are still unable to pronounce the ruling as free from exception.

The witness, on cross-examination, stated, among other things, that he depended upon his book entries to refresh his memory; that he sometimes found broken grates, but none within three years. Now, as this answer was irrelevant to the issue trying, and as there was nothing in the examination-in-chief which could properly induce a cross-examination productive of it, the plaintiff, who drew it out, was bound by it, and ought not to have been permitted, under a pretence of contradicting it, to throw evidence into the case, which, whilst prejudicial to the defence, was foreign to the matter in controversy: Griffith v. Eshelman, 4 Watts 51.

The judgment is reversed, and a venire facias de novo awarded.


author: Mr. Justice Siiarswood

text:
    Deibert’s Appeal.
    1. A provision of a will was, “ concerning all my wordly goods; * * * after my decease, each of my two children shall have §100, and of the remainder they shall yearly draw the interest, or if my trustee shall see proper he shall give them part of the principal. I appoint my brother Reuben as trustee over my goods, and he shall hold all moneys in hand, and take care of the. same and interest.” Held, that the trust was active.
    2. Ashhursfc’s Appeal, 27 P. E. Smith 464; Earp’s Appeal, 25 Id. 119, compared.
    March 16th 1875.
    Before Ag-new, 0. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Lehigh county: Of July Term 1874, No. 102. In the distribution of the estate of Daniel Deibert, deceased.
    The deceased, by his will, provided as follows :—

      “ And concerning my worldly goods or property, my land, situate in Lowhill township, shall not be sold in six years, except my executor can get $70 per acre, then he shall sell it. * * * Immediately after my decease, each of my two children shall have $100, and of the remainder they shall yearly draw the interest— or if my appointed trustee shall see proper, he shall give them part of the principal sum. * * * I appoint my brother, Reuben Deibert, as trustee over my goods, and he shall hold all moneys in hand, and take care of the same and the interest. And concerning my personal property, my hereinafter-named executor shall, after a suitable time after my decease, sell the same at public vendue. * * * I also appoint my brother, Reuben Deibert, as the executor of my last will and testament.”
    The testator left two children, Sally Ann Dornblaser and Michael Deibert.
    By the settlement of the executor’s account, there appeared to be in his hands a balance of $1387.75, the whole of which was the proceeds of personal estate, the real estate not having been sold.
    A. Woolever, Esq., was appointed auditor to make distribution.
    The auditor being of opinion that the testator died intestate as to the personal property, distributed it between the testator’s two children.
    Exceptions were filed to his report, and, after argument, the Orphans’ Court (Longaker, P. J.) holding that the bequest was a dry trust, confirmed the auditor’s report.
    The trustee appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      R. E. Wright, Jr. (with whom was R. E. Wright), for appellants.
    —The trust was active: Barnett’s Appeal, 10 Wright 392: Earp’s Appeal, 25 P. F. Smith 119; Shankland’s Appeal, 11 Wright 113 ; Dodson v. Ball, 10 P. F. Smith 493 ; Rife v. Geyer, 9 Id. 393 ; Wells v. McCall, 14 Id. 207; Ogden’s Appeal, 20 Id. 501; Yarnall’s Appeal, Id. 335.

      E. Gf. Swartz (with whom was-JButz), for appellees.
    A simple trust gives to the cestui que trust the right to the possession, &c., of the property : Dodson v. Ball, 10 P. F. Smith 492; Freyvogle v. Hughes, 6 Id. 230; McBride v. Smyth, 4 Id. 250. “ Whenever the entire beneficial interest is in the cestui que trust, without restriction as to the enjoyment of it, there is no reason why it should not he regarded as actually executed:” Rife v. Geyer, 9 P. F. Smith 396; Megargee v. Naglee, 14 Id. 216; Nice’s Appeal, 14 Wright 143. “ A devise in fee with condition that it shall not he liable for the debts of the devisee, is repugnant to the estate devised as a condition not to alien:” Keyser’s Appeal, 7 P. F. Smith 236; Yarnall’s Appeal, 20 Id. 335; Ogden’s Appeal, 20 Id. 501.
   Mr. Justice Siiarswood

delivered the opinion of the court, October 12th 1875.

This case is not to be distinguished from Earp’s Appeal, 25 P. F. Smith 119, and Ashhurst’s Appeal, 27 Id. 464. The corpus or legal title is in the trustee: “ I appoint my brother, Reuben Deibert, as trustee over my goods, and he shall hold all moneys in hand and take care-of the same and the interest.” What is given to the two children is merely the interest; “ they shall yearly draw the interest.” Some doubt might arise if the case rested there; for as the estate of the beneficiaries is not expressed to be for life, and there is ho bequest over, it might be said that the absolute bequest of the interest would carry the principal, as a devise of the rents and profits does the land. But here this consequence is precluded by the direct provision of the will; an expression of the intention of the testator which, as it is perfectly lawful, cannot be disregarded. He says : “If my appointed trustee shall see proper he shall give them (the children) part of the principal sum.” It is evidently implied that they are not to have the whole, but only such part as the trustee saw fit. That is submitted to his discretion. The trust must be upheld as an active one to effectuate this intention.

Decree reversed, and record remitted that a decree may be entered below conformably to this opinion. The costs of this appeal to be borne by the estate.


author: Per Curiam.

text:
    Commonwealth versus McGuirk.
    1. The 31st sect, of Act of March 31st 1856, directing fines for the unlawful sale of liquor to be paid to the proper school district, is not repealed by the Acts of April 20th 1858, 22d of March 1867, the 78th sect, of the Criminal Procedure Act of March 31st 1860, nor the 13th sect, of the Judiciary Article of the Constitution of 1873.
    2. The Acts of 1858 and 1867 are supplements to the Act of 1856, and are in pari materia with it.
    3. The fines, &c., referred to in the 13th sect, of the Judiciary Article relate only to the police courts of Philadelphia.
    4. Jefferson County v. Reitz, 6 P. P. Smith 44, a governing case.
    March 24th 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Olecirfield county: Of January Term 1874, No. 341.
    At the January Sessions 1874, Patrick McGuirk was indicted for selling liquor without license and pleaded “ Guilty.” On the 16th of January the court sentenced the defendant to pay a fine of $50 and the costs of prosecution, and at the same time a rule was granted to show cause why the fine should not be paid to the school directors of Osceola borough, where the offence was committed. The court (Elwell, P. J., of the Twenty-sixth district), on the 9th of March 1874, made the rule absolute and ordered the fine to be paid to the school directors of Osceola.
    The County of Clearfield removed the record to the Supreme Court by certiorari, and assigned the order of the court for error.

      W. A. Wallace, for certiorari.
    Act of March 31st 1856, sect. 31, Pamph. L. 207, 2 Br. Purd. 947, pi. 43, enacts that it shall be the duty of the court, mayor, alderman or justice of the peace before whom any fine or penalty shall be recovered, to award to the informer, &c., a reasonable share for his time and trouble, not exceeding one-third, and the residue shall be paid to the •directors of public schools of the proper district, except in Philadelphia, where it shall be paid to the city treasurer, to be applied to school purposes. By 28th sect, of same, act, the sale of liquors contrary to the provisions of the act shall be a misdemeanor, and any person, on conviction of such offence, shall pay a fine, &c., and on a subsequent conviction, in addition to the fine, shall be imprisoned, &c. It was under these sections that the court below appropriated the fine to the school district. But the 28th sect, has been repealed by the 11th sect, of Act of April 20th 1858, Pamph. L. 367, which enacts that any unlawful sale of liquors, &c., shall be a misdemeanor, and an offender, on conviction, shall pay a fine, and on a second conviction be imprisoned and forfeit his license, &e.; by the 22d sect, of the Act of 1858, all parts of the Act of 1856 in conflict with the provisions of the Act of 1858 were repealed. All the penalties of the preceding acts are repealed by the 41st sect, of Act of March 22d 1867, Pamph. L. 41, 2 Br. Purd. 947, pi. 51, which provided for other punishment. The words of the 31st sect, of Act of 1856 relate to penalties to be recovered under that statute. By the repeal of the penalties the power to recover and distribute them is repealed: Genkinger v. Commonwealth, 8 Casey 99 ; Norris v. Crocker, 13 Howard 429; Yeaton v. United States, 5 Cranch 281; Johnston’s Estate, 9 Casey 511. The Act of 1867 creates a new rule and repeals by implication all former statutes imposing penalties: Somerset & Stoystown Road, 24 P. F. Smith 61. Article 5th of the Constitution of 1873 provides for the establishment of courts both of record and not of record, and defines their jurisdiction, &c.; sect. 12th especially provides for police courts in Philadelphia, to be held by magistrates elected as therein directed, whose compensation is to be by fixed salaries; section 13th provides that all fees, fines and penalties in said courts shall be paid into the county treasury. The provision of this section therefore requires the payment of the fine in question into the county treasury.

      T. II. Murray, contrá, for Osceola borough.
    The 13th sect, of article 5th of the new Constitution applies only to police courts in Philadelphia. The 78th sect, of the Criminal Procedure Act of March 31st 1860, Pamph. L. 284, 1 Br. Purd. 396, pl. 83, directs that fines imposed by criminal courts to be paid to the Commonwealth shall be received for the use of the respective counties; but notwithstanding, the fines under the Act of 1856 are payable to the school district: Jefferson County v. Reitz, 6 P. F. Smith 44. He further discussed and compared the provisions of the Acts of 1856, 1858 and 1867. Repeals by implication are not favored : 1 Kent’s Com. 524; Commonwealth v. Herring, 6 Cush. 465; Shirm v. Commonwealth, 3 Grant 206.
   Judgment was entered in the Supreme Court April 1st 1875,

Per Curiam.

This case is governed by the decision in Jefferson County v. Reitz, 6 P. F. Smith 44, holding that the 31st section of the Act of March 31st 1856 is not substituted or repealed by subsequent legislation. The license law of 1834 had been largely substituted and repealed by the Act of 1855, a law almost prohibitory in its character. It was in turn supplied and repealed by the Act of 31st March 1856, which has remained the basis, and with its supplements constitutes the present license system for the sale of vinous, spirituous, malt and brewed liquors, except so far as it may have been changed by the legislation of the last session of the Assembly. It opens with a general declaration that it shall be unlawful to keep and maintain any house or place for the sale of vinous, spirituous, malt or brewed liquors, or admixtures thereof, and in subsequent sections provides for the mode of obtaining licenses to sell the same, and declares what sales shall be unlawful. The 28th section does not specifically define the sales which shall be deemed unlawfnl, but declares that sales made contrary to the provisions of the law shall be a misdemeanor and shall be punished as therein directed. This section was repealed by the 11th section of the Act of 20th April 1858, which declared that any unlawful sale should be a misdemeanor and punished as therein provided. The Act of 1858 was supplementary to the Act of 1856 and was intended to supersede and supply certain portions of the latter which were deemed by the legislature to he inexpedient. But the Act of 1858 left the Act of 1856 in full force as a general system of license for the sale of liquor and as declaratory of what sales should be deemed unlawful. Being a supplement, and also in pari materid, excepting to the extent it altered or repealed the Act of 1856, it is not to be construed as repugnant or as an implied repeal. So the Act of 22d March 1867, being a law in aid of the general system, and affecting it only in the matters changed by it, must be viewed in the same light. As a consequence the penalties imposed by the Acts of 1858 and 1867 are not to be treated as flowing from a new and independent system, and therefore as not falling within the provisions of the 31st section of the Act of 1856, but rather to be viewed as parts of the general system whose foundations were laid in the ’Act of 1856. This being the case, there is no conflict, and the penalties under the later acts are to be distributed under the 31st section. The apparent conflict of the 78th section of the Act of 31st March 1860, called the Criminal Code, has been shown not to be real, and therefore as not denying the disposition made in the 31st section of the Act of 1856 : Jefferson County v. Reitz, 6 P. F. Smith 44.

The 13th section of the 5th article of the new Constitution we think is not applicable to this case. It directs not only the fines and penalties, but the fees in “ said courts,” to be paid into the county treasury. But “ said courts ” refers to the courts of police and civil courts to be established under the 12th section, immediately preceding.

The order of the Court of Quarter Sessions, as to the payment of the fine to the school directors of Osceola borough, is affirmed.


text:
    Renovo Overseer versus Half-Moon Overseers.
    1. An order of removal of a pauper unappealed from is conclusive; where under such order the pauper has been accepted, there can be no recovery against the accepting district for costs and charges.
    2. The overseers of H. placed an insane pauper in the State Lunatic Asylum and served an order of removal on the overseer of R.; there was no appeal from the order: the pauper was not accepted. Held, under the 23d sect, of Act of June 13th 1836, the Court of Quarter Sessions had not jurisdiction, on application by H., to decree against R. payment of the charges, &e., for maintenance, &c., unless the petition set out that a demand had been made and there had been neglect to pay.
    3. Schuylkill v. Montour, 8 Wright 484, followed. Sugarloaf v. Schuylkill, 8 Wright 481, referred to.
    March 26th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Clinton county: No. 26, to January Term 1875.
    On the 21st of May 1873, Ira Fisher and W. L. Wilson, overseers of the Poor District of Half-Moon township in the county of Centre, presented their petition to the Court of Quarter Sessions of Clinton county, setting out:—

      “ That on or about the 1st day of May A. D. 1872, one Michael McGuire came into the said township of Half-Moon, wildly deranged ; that he was unsafe and dangerous to be at large; that he immediately became a charge upon said township, and was taken by your petitioners to the Insane Hospital at Harrisburg for safekeeping. * * * That upon inquiry, your petitioners ascertained that the last place of the said pauper’s legal settlement was in the borough of Renovo, in the county of Clinton; that your petitioners applied to two justices of the peace, in and for the said county of Centre, * * * and upon presentment of their proofs the said justices granted an order for the removal of said Michael McGuire, pauper, as aforesaid, from the township of Half-Moon to the said borough of Renovo, in the county of Clinton, aforesaid, and adjudged the said borough of Renovo to be his last place of legal settlement, on or about the 10th day of December, A. d. 1872; that Ira Fisher, one of the overseers of Half-Moon and one of your petitioners, did, on the 11th day of December, A. D. 1872, serve the said order of removal personally, * * * upon Matthew Dean, the overseer of the poor for said borough of Renovo, and that said order of removal has not been appealed from by said overseer of the poor of Renovo. Your petitioners therefore pray the court to grant a rule upon the said overseer of Renovo to show cause why the said borough of Renovo should not pay the costs and expenses incurred by the said township of Half-Moon, in conveying said pauper to the hospital at Harrisburg and for his maintenance and support, &c., as set forth in an annexed statement.

      The statement showed in detail the expenses incurred by Half-Moon township on account of the pauper; the total was $320.40.
    The order of removal made part of the petition, set out the complaint of the overseers of Half-Moon township, that McGuire had lately come to inhabit Half-Moon township, but had not gained a legal settlement there, and being insane had become chargeable to the township of Half-Moon, and the justices, in consideration of the premises, adjudged the place of the last legal settlement of McGuire to be in the borough of Renovo, in Clinton county. The order then directed the overseers of Half-Moon, at the expense of that township, to remove the pauper to the borough of Renovo, and to the overseer of that borough to receive him.
    The borough of Renovo answered the petition :—
    1. Denying that Eisher and Wilson were, at the time of procuring the order of removal, overseers, &c., of Half-Moon township.
    2. Denying that McGuire’s last place of settlement was Renovo.
    3. Averring that the charges in the statement were not accurate.
    A large amount of testimony was taken.
    The court (Gamble, P. J., of the Twenty-ninth district) decreed that the overseer of Renovo pay to the overseers of Half-Moon the sum of $320.40, with costs and $25 counsel fee.
    The borough of Renovo took out a certiorari from the Supreme Court, and assigned four errors, two of which were :—
    2. That the court erred in holding that they had jurisdiction.
    3. In holding that the order of removal was conclusive of the - settlement of the pauper in the borough of Renovo.
    (?. S. McGormiek, for certiorari,
    referred to Act of April 14th 1845, Pamph. L. 441, 2 Br. Purd. 971, pl. 19, relating to the State Lunatic Asylum ; Danville, &c., Poor District v. Montour County, 25 P. F. Smith 35.

      J. Gf. Love (with whom was A. Soy), contest,
    referred to Act of June 13th 1836, sect. 23, Pamph. L. 546, 2 Br. Purd. 1159, pl. 38; Sugarloaf v. Schuylkill County, 8 Wright 481; Wertz v. Blair County, 16 P. F. Smith 18. The order of removal being unappealed from is conclusive: Bradford Township v. Keating Township, 3 Casey 275; Westmoreland County v. Conemaugh Township, 10 Id. 231.
   Mr. Justice Gordon

delivered the opinion of the court, May 10th 1875.

This case comes before us on a certiorari, hence we can review that only which appears on the face of the record.

An order of removal, unappealed from, is conclusive upon all parties, and where, under such order, the pauper has been accepted, there can be no recovery against the accepting district for costs and charges: Directors of Schuylkill v. Directors of Montour, 8 Wright 484.

In the case in hand the overseers of Half-Moon had placed the pauper, a raving maniac, in the Lunatic Hospital at Harrisburg, and served the order of removal on the authorities of Renovo. There was no appeal from this order, but the pauper was not accepted. Under these circumstances it is quite' possible the plaintiff’s claim might have been sustained under the 22d sect, of the Act of June 13th 1836, vide Overseers of Sugarloaf v. Directors of Schuylkill, 8 Wright 481. But, in order to bring the matter within this section, the petition should have set forth that a demand had been made upon the appellants for the expenses incurred in the maintenance of the pauper, and that there had been a neglect or refusal to pay. The petition being defective in this, no default appeared on the part of the overseer of Renovo, hence the court had no jurisdiction of the case.

The decree of the Court of Quarter Sessions is therefore reversed and set aside at the costs of the appellees.