author: Sharswood, J.

text:
    Burkholder versus Beetem’s Administrators.
    1. Beetem, the cashier of an incorporated state bank, shortly after a purchase of stock at $40 per share, sold it to Burkholder at $50. Ilis expression of an apprehension about the time he sold that he would lose by it, did not tend to prove that he had used deceit in the sale.
    2. The Act of April 16th 1850, sect. 10 (Banks), imposes a penalty on cashiers dealing in stocks. All contracts in violation of this act are invalidated.
    3. The act is a public general one, of which all are bound to take notice.
    4. Where an act or contract is prohibited under a penalty, it is unlawful and void, though the statute does not expressly so declare.
    5. When a contract prohibited by statute has been executed, both parties being in pari delicto, neither can maintain an action to rescind it.
    6. The law implies a promise to refund, by a party who has received money under an illegal contract, if the other party does not stand in pari delicto.

    7. It is not unlawful for a cashier to .become an agent to purchase stock.
    8. Beetem’s'stock at the time of the sale was in the name of a third person ; if Burkholder had reason to believe that the stock was the third person’s and that Beetem was buying from that person as Burkholder’s agent, Burk-holder was not particeps criminis and could recover from Beetem the money paid.
    9. Declarations by Beetem to others about the time he sold to Burkholder of the value of the stock was not evidence for Burkholder in a suit by him.
    10. Where there is a misjoinder of counts, and the defendant has pleaded to issue, the CQurt cannot require the plaintiff to elect on which he will proceed.
    11. A misjoinder of counts is to be taken advantage of by demurrer in the first instance.
    May 12th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 58, to May Term 1870.
    This was an action of assumpsit, brought August 12th 1865 by Henry L. Burkholder against Joseph W. Patton and Joseph A. Stuart, administrators, &c., of William Beetem, deceased. The action was to recover $3000 which the plaintiff at the request of Beetem had given to him, Beetem, to invest for him. The first count of the declaration alleged, that in consideration that the plaintiff would not invest $3000 in United States loan and would intrust it to Beetem to invest, he would invest it more profitably, and the plaintiff gave him the money to invest; that Beetem did not invest it more profitably, but invested it in 60 shares of the stock of the Glenville Goal Company, which was, as Beetem knew, of little or no value. The second count alleged that Beetem, who was a banker and dealer in stocks, represented that he was well acquainted with the value of stocks, that the plaintiff should pay no more for the investment than Beetem had paid; that Beetem had paid but $40, whilst he represented to the plaintiff that he had paid $50 per share. The common counts were added. There was another count in deceit, alleging that Beetem induced the plaintiff to take 60 shares of stock of the Glenville Coal Company, as purchased from another person, and saying it was of great value (it being Beetem’s own stock, and of little value), and Beetem having information, leading him to believe that it would depreciate still more, and that the company shortly afterwards became insolvent. The defendants pleaded non assumpsit.
    On the trial, November 9th 1869, before Graham, P. J., the court required the plaintiff to elect between the counts in assumpsit and in tort, and sealed a bill of exceptions. The plaintiff elected to proceed in assumpsit. The plaintiff gave evidence that Beetem had been cashier of the Carlisle Deposit Bank up to his death, which occurred July 26th 1865. He then read from the deposition of H. W. Bickley, a member of the firm of Smith, Randolph & Co. of Philadelphia. The deponent said, that in the latter part of 1864, that firm sold Beetem 1000 shares of Glenville Coal Company stock at $40 per share; the stock was put into the name of Beetem, and he afterwards requested that certain portions of it should be put into the names of other persons. Orders for this were sent to Boston (where it appeared the office of the company was), and the change was made; the market for the stock was in Boston, there was no market for it in Philadelphia. • The following, in the deposition, was objected to by the defendants, rejected by the court and a bill of exceptions sealed:—
    “ I imagine Mr. Beetem looked to no one else but Smith, Randolph & Co. to fulfil the contract of sale; I could not say whether he knew or not for whom he acted; I imagine he knew who were the getters-up of the company. I think that Messrs. Hunter Scott & Co., of this city, were the prime movers in getting up the company, in connection with some Boston men; I cannot speak, with certainty, but that is my impression.”
    The plaintiff then gave in evidence a number of letters fromBeetem to Smith, Randolph & Co., from July 27th 1864 until December 27th 1864, showingthat he had dealings with them for the Glenville stock and other stocks, and tending to show that he was an extensive speculator in stocks; also that towards the close off 1864 he had reduced his Glenville stock to 800 shares, and had' become apprehensive, for reasons referred to in his letters, that the stock had become worthless.

      John P. Earley, of Chelsea, Massachusetts, stated in his deposition that Smith, Randolph & Co. sent to Spencer, Vila & Co., of whom deponent was one, 800 shares of Glenville stock to split up into lots; this was done and returned to them, and that Spencer, Vila & Co. had no interest in the stock, but acted as agents of Smith, Randolph & Co.
    The answers to the following interrogatories in'the deposition were objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    1. “ Where do you reside, and what business have you been engaged in ?”
    “ I reside in Chelsea, Massachusetts, and am and have been a banker in Poston.”
    2. “ Did you know the late William M. Beetem, of the borough of Carlisle, state of Pennsylvania ? If yea, for what length of time were you acquainted with him ?” He answered as follows :
    “ I never knew him.”
    7. “ How was the stock of the Glenville company issued? How were the subscriptions to that capital stock made out, and to whom paid ? In the transfers from Beetem, and issuing certificates to Burkholder and others, was money paid to the company or its officers for this stock, or was it an arrangement made merely to carry out the views of the said Beetem ? Annex any memoranda from the books of the company showing the transfer of the Beetem stock, or anything on the books explaining how it was held, and how and to whom transferred.”

      “ I know nothing of the company. No money was paid by us, that I recollect, to any one, nor do I know anything of the occasion or object of the transfer.”
    George L. Huntingdon, treasurer of the Glenville Company, stated in his deposition:—
    4. “ The books of the Glenville Coal Company show that William M. Beetem was the holder of 800 shares of stock, and that a certificate of the same was issued to him October 27th 1864, as one of the original subscribers to the capital stock of the company.”
    7. “ The books of the company show that the capital stock was subscribed for by various parties, and among them by William M. Beetem for 800 shares, and that the amount of these subscriptions was paid'in cash to the treasurer, on the 20th of August 1864. In the following order certificates appear to have been issued to the various subscribers for the number of shares subscribed for by them, and among them the certificate to William M. Beetem, as stated in answer to the fourth interrogatory. In the transfers from Beetem and issuing certificates to Burkholder and others, the books do not show that money was paid to the company or its officers, [and I presume it was an arrangement made to carry out the views of said Beetem.]”
    The court would not allow the portion of the 7th answer in brackets to be read, and sealed a bill of exceptions for the plaintiff.
    The plaintiff gave in evidence the following papers:—
    Power of attorney on back of the certificate:
    “ For value received I hereby sell, transfer and assign to Spencer, Vila & Oo. eight hundred shares in the capital stock of the Glenville Coal Company within mentioned, and authorize C. II. H. Cook as my attorney to make the necessary transfer on the books of the company. William M. Beetem.”
    “ For value received, I hereby sell and transfer to Spencer, Vila & Co. 800 shares of the Glenville Coal Company.
    “ Dated this 18th day of January, A. d. 1865.
    William M. Beetem,
    Per C. H. H. Cook, Attorney.”
    “For value received, we hereby sell and transfer unto Miss Martha C. Duncan, of Philadelphia, forty shares in the Glenville Coal Company.
    “Dated this 18th day of January, A. d. 1865.
    Spencer, Vila & Co.”
    “For value received, we hereby sell and transfer unto Henry L. Burkholder, of Philadelphia, sixty shares in the Glenville Coal Company.
    “ Dated this 18th day of January, a. d. 1865.
    Spencer, Vila & Co.”
    “ For value received, we hereby sell and transfer unto Smith, Randolph & Co., 700 shares in Glenville Coal Company.
    “January 18th 1865. Spencer, Vila & Co.”
    Certificate No. 96, Glenville Coal Company for sixty shares stock to Henry L. Burkholder, dated Boston, January 18th 1865.
    Plaintiff offered to prove by J. A. Murray, “ that at or about the time of the sale to plaintiff, Beetem was dealing in stocks, and in Glenville stock clandestinely, under other names, and sold and transferred twenty shares of the stock to the witness, at $50 per share, which he represented to be its true value, and a safe investment, and that it had no real value at the time, and he knew it; this for the purpose of showing that Mr. Beetem was gambling and dealing in stock, contrary to the provisions of the Act of Assembly; and for the purpose of invalidating his sale and transfer of said stock to Mr. Burkholder, and enabling him to recover back the money paid for it.”
    This was objected to by the defendant, rejected and a bill of exceptions sealed.

      Plaintiff offered to prove by John Stuart, “that Mr. Beetem, to whom witness had proposed to buy government bonds, told him, he would get him something better, Glenville Coal stock, and representing the stock as not his own, but only procurable by him for a few of his friends; and the witness placed in his hands $1000 for investment. That the witness in the interval felt dissatisfied with the investment, and came on the next day to revoke the order, and Beetem then told him it was too late; that the order had already gone off; and in return for the $1000 of money, he the witness received a certificate for twenty shares of the Glen-ville stock, to be followed by proof, that it was part of the stock which Beetem had acquired from Smith, Randolph & Co. This transaction was about the same time as Burkholder’s, and offered for the same purpose as in the last appendix.”
    This was objected to by defendants, rejected and a bill of exceptions sealed.
    The plaintiff offered to show by D. H. Mahon, “that as an appraiser of Martha Duncan’s estate, he asked Beetem in the spring of 1865, the value of the Glenville stock, that he said $50 per share; that Beetem then knew it was worth but $5 per share; to followed by proof that 640 shares had been appraised in Beetem’s estate at $5 per share.” He offered the inventory of Beetem’s estate; the offers were rejected and bills of exceptions sealed.
    Plaintiff offered to prove by C. W. Weaver, that in November 1864 wishing to invest $3500 in government bonds, he applied to Beetem who advised him to invest in Glenville and Shamokin stock which would pay from 12 to 20 per cent, per annum; that after-wards on witness asking Beetem why he did not keep it himself, he said, he did not want everybody to have it, he wished it for particular friends, it would be the best paying stock in the country, &c.
    The offer was rejected and a bill of exceptions sealed.
    The plaintiff then gave evidence of the payment by him to Beetem on the 4th of February 1864, of $2499.84 by a check and $500 by a note.
    The defendant gave no evidence.
    The plaintiff’s points and the answers were:—
    1. If William M. Beetem was cashier of the Carlisle Deposit Bank, and well acquainted with the stock market, &c., and had superior means of knowledge, when Mr. Burkholder, by his course of life, was ignorant of these things, and under such circumstances Beetem sold Burkholder a stock ■ at its full par value, when it really had in Philadelphia no market value; this fraud was sufficient to authorize Burkholder to repudiate the contract, and .recover the'money.
    • Answer: “We cannot answer this in the affirmative. — If there were no representations made by Beetem of its value, the fact of its being of no value, or not valuable in Philadelphia, if it was of value, and sales made in Boston would not be sufficient to avoid the contract.”
    2. If Beetem, cashier of a bank, and forbidden by statute to deal in stocks, used means to deceive Burkholder as to the ownership of the stock sold him, as by keeping the certificate in Boston, or Philadelphia, and first giving a power of attorney to Smith, Randolph & Co., and then transferring the stock in New England to Spencer, Vila & Co., such devices would be a fraud on Burkholder, and the statute would avoid the contract, and Burk-holder may recover his money.
    Answer: “ The facts recited in this point would not of themselves be sufficient to avoid the contract.”
    4. If the jury believe that Mr. Beetem, being cashier of the Carlisle Deposit Bank at the time, received from Henry L. Burk-holder, on the 4th day of February 1865, the sum of $3000 for sixty shares of Glenville Coal stock, which was really his own stock, but which fact he studiously concealed, and he was, at the time, clandestinely dealing and gambling in this stock under cover of brokers in Philadelphia and Boston, and he put upon the plaintiff these 60 shares of Glenville stock as a mere gambling and speculative stock at the time, without Burkholder’s knowing it was Beetem’s stock he was buying, and uninformed as to its real value, their verdict should be for the plaintiff for the $3000, and the interest from the time Beetem received it.
    Answer: “We cannot say that, under the facts stated in this point, Mr. Burkholder’s being misinformed as to the value of the stock he purchased, would be sufficient to authorize Mr. Burk-holder to rescind or avoid the contract. To authorize Mr. Burk-holder to rescind the contract, it would be necessary that he should be misinformed by Mr. Beetem as to the value of the stock he purchased.”
    Judge Graham amongst other things charged:—

      * * * [ “ If the first two counts set forth a good cause of action, and it may be doubted whether the .consideration alleged would sustain a promise, then we recollect no evidence to sustain the special contract set out. There is no evidence in the case, that we remember, to show any agreement, contract or representation between the parties, in reference to the purchase of stock by Beetem for the plaintiff.]
    “ But the plaintiff contends that he can recover on the money counts, that the purchase and sale of stock by Mr. Beetem, he being the cashier of the Carlisle Deposit Bank at the time, was illegal, and contrary to the provisions of the Act of Assembly of 15th of April 1850, which enacts as follows: ‘If any cashier of a bank shall directly or indirectly engage in the purchase or sale of stocks, or in any profession, occupation or calling other than that of his duties of cashier, such ■ cashier, upon conviction thereof, in any court of criminal jurisdiction, shall be sentenced to pay a fine not exceeding five hundred dollars.’
    “ This is a penal statute, and subjects any cashier of a bank who shall directly or indirectly engage in the purchase and sale of stocks to a criminal prosecution, and on conviction to a fine not exceeding $500. [The act operates on the party violating its provisions, but is silent as to the validity of a contract for the purchase or sale of stock in violation of its provisions; but it is a well-established principle of law that it will not enforce a contract made in violation of its provisions, known by both parties under the circumstances. The law will not afford its aid to either party, either to enforce or rescind the contract, but leave them in the position they have placed themselves.] [But in this case the plaintiff alleges that he is an innocent party; that he supposed Beetem was purchasing the stock for him; that he had no knowledge that Beetem was dealing in stock, or ordered the stock and intended to sell his own stock to him. That this was kept studiously concealed by Mr. Beetem, and that there is nothing in the Act of Assembly to prevent the cashier of a bank from purchasing stock for another. Under these circumstances, if Burkholder was not a party knowingly to the illegal transaction of Beetem he would not be affected by it, or precluded from rescinding the contract on the ground of fraud.]
    [ “ The question then involved'in this case as we look at it is, Was there any fraud, deceit, false representations or concealment of the truth with a fraudulent intent, acted or practised by Beetem to induce Burkholder to purchase this stock ? If there was, then the plaintiff may rescind the contract and recover the money paid. If, on the contrary, the purchase was fair and honest, not induced by any deceit or misrepresentation on the part of Beetem, the plaintiff cannot recover.] [But fraud must be proved; it cannot be presumed; but there may be facts and circumstances proved from which the inference of fraud is a reasonable conclusion, and your minds must be satisfied reasonably well from the evidence that there was fraud or deceit practised by Beetem on Burk-holder, to induce him to make the purchase, to justify a rescission of the contract and a verdict for the plaintiff.”] * * *
    The verdict was for the defendants. The plaintiff took a writ of error. >
    1, 2 and 3. Assignments of error were the answers to the points.
    4, 5, 6 and 8. The parts of the charge in brackets.
    9. That the charge as a whole was contradictory and calculated to mislead the jury.
    10. Rejecting part of Bickley’s deposition.
    11-13. Rejecting parts of Earley’s deposition.
    '14. Rejecting part of Huntingdon’s deposition.

      15-18. Rejecting the testimony of Murray, Stuart, Mahon and Weaver.
    19. Rejecting the inventory of Beetem’s estate.
    20. Putting the plaintiff to his election of his counts.

      W. M. Penrose and W. H Miller, for plaintiff in error.
    The presumption was that Beetem was selling the stock for others — for that would have been a lawful act, whilst selling for himself was unlawful. Burkholder was thrown off his guard. Beetem owning the stock, the sale was a fraud: Addison on Contracts 130, 133; Pearce v. Blackwell, 12 Iredell 49; Lewis v. Davison, 4 M. & W. 654; 1 Greenl. Ev., § 80; Simons v. Vulcan Oil Co., 11 P. F. Smith 202; 1 Story’s Eq. Juris., § 315 and note 1; 1 Parsons on Contr. 74, 75. The Act of April 16th 1850, § 10, Pamph. L. 481, Purd. 90. pl. 25, imposes a penalty on a cashier engaging in the purchase and sale of stocks and is therefore a prohibition: Bartlett v. Vinor, Carth. 257; Skinner 322; Drury v. Defontaine, 1 Taunton 136; Bensley v. Bignold, 5 B. & Ald. 335; Columbia Bridge v. Haldeman, 7 W. & S. 235; Cope v. Rowlands, 2 M. & W. 149; Furgusson v. Norman, 5 Bing. N. C. 76; 1 Kent’s Com. 467. Whilst such prohibited contract remains executory, either party may rescind: Addison on Contr. 67, 150; 2 Starkie on Ev. 113, &c. If the contract is unlawful only on the part of one, the other may recover back his money, although it has been executed: Williams v. Hedley, 8 East 378; Pearsoll v. Chapin, 8 Wright 7; Harner v. Fisher, 8 P. F. Smith 453; Funk v. Ely et al., 9 Wright 444; Caldwell v. Boyd, 7 P. F. Smith 322; Stone v. Hays, 3 Denio 575; Willink v. Vanderver, 1 Barb. 599; 1 Starkie’s Evidence 34, &c. One cannot act as agent for the purchaser and be himself the seller: Gould v. Gould, 36 Barb. 271; 6 Madd. Ch. R. 367; Conkey v. Bond, 34 Barb. 276; Aberdeen Railway Co. v. Blaikie, 1 Macq. 461.

      Henderson & Hays, for defendants in error.
    A rescission of the^contract, dependent upon a retransfer of the stock, was necessary before suit brought to entitle the plaintiff to recover in this action: Roth v. Crissy, 6 Casey 145; The Turnpike Co. v. The Commonwealth, 2 Watts 433; Duncan v. Lawrence, 12 Harris 157.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

There have been twenty errors assigned on this record; but as the counsel for the plaintiff concede in their printed argument, all those which are founded upon the charge and the answers of the court to the points presented are resolvable into two questions. The first is as to the character of the relation between the parties, and the second as to the effect of the Act of Assembly of April 15th 1850, sect. 10, art. 5th, Pamph. L. 482, entitled “An Act regulating Banks.”

The action was instituted to recover from the defendant as administrator of William M. Beetem, who in his lifetime was cashier of the Carlisle Deposit Bank, the sum of §8000 alleged to have been paid to him by the plaintiff as the consideration for the purchase of sixty shares of stock of the Glenville Coal Company. The ground of it was that the contract of sale was fraudulent or illegal, and the plaintiff claimed the right to rescind it and recover back the purchase-money.

The evidence was very bald and meagre as to the circumstances of the sale. It tended to show that Beetem was the owner of 800 shares of the stock, which he had transferred to Spencer, Yila & Co. of Boston to hold for him: then a transfer of sixty of the shares by them to the plaintiff, dated January 18th 1865, and the payment by the plaintiff to Beetem of §2499.84 by a cheek dated February 4th 1865, and a note of the plaintiff of the same date, to the order of and endorsed by G. W. Hilton, for §500, which was deposited by Beetem in the Carlisle Deposit Bank as cash and paid April 8th 1865. In addition there were in evidence letters from Beetem to his brokers in Philadelphia, relating to the purchase for him of the 800 shares, from which it might be inferred that at the close of the year 1864 he apprehended loss by the investment or speculation. On the supposition that Burk-holder and Beetem were simply vendor and vendee there certainly was no evidence of any misrepresentation or fraud in the sale. Beetem bought the stock at §40 a share, and his mere expression of an apprehension that he would lose certainly did not even tend to prove that he had used any deceit in the subsequent disposition. It was urged that the fact that the stock stood in the names of Spencer, Yila & Co., and that the transfer was direct from them to the plaintiff, was sufficient primá facie to authorize the inference that Beetem had acted as the agent of Burkholder in making the purchase, and had concealed from him the fact that he was the beneficial owner. Substantially the court in their answer to the plaintiff’s sixth point, submitted this question to the jury. “If Mr. Beetem in place of making a purchase of the stock for Mr. Burkholder, in fact had stock, which he then held, assigned through another to Mr. Burkholder at greatly more than he knew to be its actual value, this would authorize a rescission of the contract by Mr. Burkholder and a recovery of the money paid by him to Beetem.” There was no evidence in the case, as the court properly instructed the jury in their charge, to show any agreement, contract or representation between the parties in reference to the purchase of stock by Beetem for the plaintiff. The first four assignments of error are therefore not sustained.

But the more important question in the cause is as to the effect of the Act of 1850. It provides “ that it shall not be lawful for the cashier of any bank to engage in any other profession, occupation or calling, either directly or indirectly, than that of the duties appertaining to the office of cashier; and if any cashier of the bank shall directly or indirectly engage in the purchase and sale of stocks, or in any other profession, occupation or calling other than that of his duties of cashier, such cashier upon conviction thereof in any court of criminal jurisdiction shall be sentenced to pay a fine not exceeding $500.” The main object of this provision undoubtedly was the security of the bank — to remove from the cashier, who necessarily has possession and control of the money and securities, all temptation to use such funds in his private speculations. Yet it cannot be questioned that, according to well-established principles, it invalidated all his contracts contrary to its mandate. The act is a public general statute of which all are bound to take notice. When an act or contract is prohibited under a penalty, it is unlawful and void, though the statute does not expressly so declare: Mitchell v. Smith, 1 Binn. 110; Seidenbender v. Charles’s Adm., 4 S. & R. 151; Columbia Bank and Bridge Co. v. Haldeman, 7 W. & S. 233. In Hall v. Franklin, 3 Mee. & Welsby 259, to an action of assumpsit by the endorsees against the endorser of a bill of exchange, the defendant pleaded that the bill was made and endorsed after the passing of the statute 17 Geo. 3, c. 99, which restrained spiritual persons from being occupied in any trade or dealing, that the plaintiffs were a banking company, of which certain spiritual persons holding benefices were partners and members, whereby said endorsement and promise in the declaration mentioned were void, it was held on demurrer that the plea was good. And see Young v. Robertson, 23 Legal Int. 365, a case decided in the District Court of Philadelphia on this provision of the Act of 1850. The proviso to the section of the Act of 1850 in question is, that it “ shall not be construed in such manner as to prevent any cashier from managing his own real estate or private property as heretofore, if such private property be not vested in mercantile, mechanical or manufacturing operations.” It may be that a purchase of stock in a coal company for investment merely, or a subsequent sale, would not be within, the prohibition, but when there is evidence, as there was in this case, that the cashier was engaged in speculating in stocks— buying for the mere purpose of making profit by a rise in the market price, especially when he was engaged in more than one transaction of the kind, the case is clearly within both the letter and spirit of the act. It is true that when a contract so prohibited by statute has been executed, both parties being in pari delicto, an action cannot be maintained by either party to rescind the contract: Addison on Contracts 149; Boutelle v. Melendy, 19 N. H. 196. The party who has paid the consideration cannot recover it back. Bat the law implies a promise to refund money had and received under an illegal contract where the plaintiff seeking to recover such money does not stand in pari delicto with the person who has received it, and from whom it is sought to be recovered: Addison on Cont. 67. Upon the evidence then was Burkholder the plaintiff in pari delicto with Beetem? Upon the face of the transaction, so far as it appears that he had any knowledge of it, he did not purchase the stock of Beetem, but of Spencer, Vila & Co. There is no evidence that he knew that the stock belonged to Beetem. There was nothing unlawful in the employment of a cashier as an agent to purchase the stock. The learned judge below recognised this to be the law, and instructed the jury that if Burkholder was not a party knowingly to the illegal transaction of Beetem he would not be affected by it, or precluded from rescinding the contract on the ground of fraud. He then proceeds to submit to them the question of fraud: “ Was there any fraud, deceit, false representation or concealment of the truth with a fraudulent intent, acted or practised by Beetem, to induce Burkholder to purchase this stock ? If there was, then the plaintiff may rescind the contract and recover the money paid. If on the contrary the purchase was fair and honest, not induced by any deceit or misrepresentation on the part of Beetem, the plaintiff cannot recover.” But if the facts were as supposed, why was this limit placed upon the right of rescission — why was Burk-holder at liberty to rescind the contract only on the ground of fraud and not simply on the ground of illegality ? If Burkholder had every reason to believe that he was purchasing of Spencer, Yila & Co., and that he was paying the money to Beetem for them, and there was no evidence to show that he knew that Beetem was violating the law by indirectly selling stocks, he must be regarded as an entirely innocent party. He was not particeps criminis, and there was nothing to preclude him from setting up the illegality of the contract, and recovering back the money paid. We think, therefore, that the learned judge erred in this instruction to the jury, and the 6th, 7th and 8th assignments of error are sustained.

We see no error in the several bills of exceptions on account of the rejection of testimony. The imaginations, thoughts, impressions and presumptions of witnesses who know nothing of the facts are surely inadmissible. When a witness states in a deposition no material facts, but denies his knowledge of any of the matters inquired of, the whole may be rejected as irrelevant, unless some special object is to be attained by showing his want of knowledge. That does not appear in regard to Earley’s deposition ; at least it was not stated that it was offered for that purpose. Transactions by Beetem with other persons, or representations made by him to others as to the value of Grlenville stock were clearly inadmissible; nor was the inventory of his estate, as to the appraised value of this stock in August 1865 at all relevant. This disposes of all the remaining errors except.the 20th.

There were several counts in the declaration, some in form ex contractu, and one in tort. At the opening of the cause the court required the plaintiff to elect on which counts he would proceed. The plaintiff then elected to proceed on the counts in assumpsit, and excepted to the ruling of the court. This is certainly a novel proceeding. I have looked in vain through the books for any precedent or authority to justify it. The mode of taking advantage of a misjoinder of counts is by demurrer in the first instance. The English books say that the declaration will be bad on general demurrer, in arrest of judgment or upon error: 1 Chitty on Pl. 206; 1 Saund. PL & Ev. 418; Brigden v. Parkes, 2 Bos. & Pul. 424. But in Martin v. Stille, 3 Whart. 337, in very much such a misjoinder as here, it was held that it could only be taken advantage of by special demurrer. In some cases in England a misjoinder will be aided by intendment after verdict: 1 Saund. Pl. & Ev. 418. If the defendant chooses to plead in bar, and go to trial on such a declaration, there is no authority in the judge to strike out any count, or to put the plaintiff to his election between a count in assumpsit and another in tort. For this error, however, we would not reverse; for it is plain that it did the plaintiff no harm. There was no evidence which he could have given under the count which he abandoned which was not admissible under the money counts.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Laverty versus Vanarsdale et al.

    1. Where an action is brought against more than one for a wrong done, in order to recover against all a combination or joint act of'’all must be proved.
    2. If it turn out on the trial that one only was concerned, the plaintiff may recover as if such one had been sued alone.
    3. The conspiracy is nothing as to the sustaining the action, the foundation being the actual damage done to the plaintiff.
    May 12th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 63, of May Term 1870.
    This was an action on the case, brought August 22d 1868, by Jesse Laverty against Joseph Yanarsdale and ten others, for conspiracy, and injuring him in his business as a school teacher.
    The allegation of the^declaration was, that the plaintiff was, a good teacher, and that his reputation was such that he had long been employed as a teacher in a public school in East Pennsborough township, and that the defendants, for the purpose of preventing his being engaged for another year, wilfully and maliciously prepared, signed and induced others to sign a petition representing that he was unfit for a teacher, which having been presented to the school directors, prevented his employment as a teacher at the school, and otherwise injured his reputation as a teacher.
    The case was tried January 19th 1870, before Graham, P. J. There was evidence that Vanarsdale had stated to different persons that the plaintiff had whipped a son of John Pretz severely, and had Beaten his head against the floor, &c. The plaintiff was examined, and gave evidence to sustain his case. He stated that there was no truth in Vanarsdale’s statement that he had abused Pretz’s son, and gave his account of a difficulty that there been between young Pretz and another boy in the school. The defendants called John Siever, a scholar, and proposed to ask him to tell about the transaction as to the difficulty with Pretz’s son, as described by the plaintiff, for the purpose of contradicting him. Plaintiff objected to the offer, it was admitted and a bill of exceptions sealed.
    The witness testified that he and the plaintiff’s son had been out of school together during recess; that the son committed some offence; that the witness told the plaintiff that it was not he, witness, that did .it; that the plaintiff would not listen to him, but commenced kicking him.
    Much testimony was given on both sides.
    The plaintiff’s 1st and 3d points and their answers were:—
    1. To make a conspiracy does not require any actual meeting together for a common purpose; but if the parties charged, each separately contributed to a common purpose, and the object of that purpose is to injure one person improperly and without sufficient grounds, it is in law a conspiracy, and if the jury believe that the defendants are guilty in any of them of thus uniting with each other, the plaintiff is entitled to recover.
    Answer: “ The law is correctly stated in this point, except that the evidence must satisfy you that two or more of the defendants contributed to the common purpose mentioned in this point. You cannot find one defendant alone guilty of a conspiracy. It requires two or more to join in a common purpose to injure another improperly and influenced by improper motives.”
    3. If any one of these defendants was actuated by a private and malicious feeling influencing his own action, and he induced others to give him their countenance and aid, to the injury of the plaintiff, the party so acting is liable, and the plaintiff may recover as against him.

      Answer: “We cannot instruct you as requested in this point. There can be no recovery against one only. To justify a verdict for the plaintiff, the evidence must satisfy you that two or more of the defendants joined in the enterprise through feelings of animosity, hatred, ill will, or revenge for a real or supposed injury. If they acted through proper motives there can be no recovery.”
    In his general charge Judge Graham said:—
    “ To constitute a conspiracy in this case, it is necessary that the defendants, or two or more of them, should have been influenced and prompted by malice, envy, hatred or revenge to injure, harass or aggrieve the plaintiff; but if their actions were not induced by improper and malicious motives, there can be no recovery.”
    The verdict was for the defendants.
    The plaintiff took out a writ of error, and assigned for error the admission of Siever’s testimony; the answers to his points, and the part of the charge given above.

      J. Hays, W. M. Penrose and L. Todd, for plaintiff in error.
    An action on the case in the nature of a conspiracy will lie against one, or if brought against many all may be acquitted but one: Fitz. Nat. Brev. 114 D. 116 A. K.; Skinner v. Gunton, 1 Saund. Rep. by Williams 228 c., n. 4, p. 230; Savill v. Roberts, 1 Ld. Raym. 378; Muriel v. Tracy, 6 Mod. 169; Pollard v. Evans, 2 Show. 50; Jones v. Baker, 7 Cowen 445; Eason v. Westbrook & Garland, 2 Taylor (N. C.) 267; Burton v. Fulton, 13 Wright 151; Haldeman v. Martin, 10 Barr 369; Hood v. Palm, 8 Id. 237. The examination of plaintiff as to the abuse was purely collateral, his answer is conclusive: 1 Starkie on Ev. 337, 338, 200, 201, and notes; Griffith v. Eshelman, 4 Watts 51; Smith v. Dreer, 3 Whart. 154; 1 Stark. 241, n.

      H. New sham, S. Hepburn, Jr., W. H. Miller and S. Hepburn, for defendants in error.
   The opinion of the court was delivered, July 7th 1870, by

Read, J.

This is an action upon the case, in the nature of a conspiracy against the defendants, for falsely and maliciously combining and conspiring to prevent the plaintiff from obtaining employment as a school teacher, and by reason of which combination and conspiracy he was deprived of employment as a school teacher, and prevented from earning support for himself and family as such. The damage sustained by the plaintiff is the ground of the action, not the conspiracy. “ Where the action is brought against two or more, as concerned in the wrong done, it is necessary, in order to recover against all of them, to prove a combination or joint act of all. For this purpose it may be important to establish the allegation of a conspiracy. But if it turn out on the trial that only one was concerned, the plaintiff may still recover, the same as if such one had been sued alone. The conspiracy or combination is nothing, so far as sustaining the action goes, the foundation of it being the actual damage done to the party:” Hutchins v. Hutchins, 7 Hill 104; Jones v. Baker, 7 Cowen 445; Parker v. Huntington, 2 Gray 124.

The court was therefore. clearly in error in saying there could be no recovery against one only.

There was also error in the admission of the evidence mentioned in the 2d assignment of errors.

Judgment reversed, and venire de novo awarded.


author: Thompson, C. J.

text:
    Heft versus Gephart.
    1. A number of adjoining tracts warranted to different persons were conveyed in one body by courses and distances, all the warrants being recited. They were assessed in different tracts in the names of the respective warrantees and sold separately for taxes. On one, saw-mills had been erected by the owners of the whole, from which timber was to be supplied for manufacture at the mills. Held, that this did not constitute the whole one seated tract,
    2. The tax laws as to unseated lands, treat them entirely in reference to the original warrants, when not otherwise directed by the owners.
    3. The taxing officers have always gone by the surveys on warrants.
    4. Portions of distinct warrants united in fact by purchase may be thus returned and assessed by whatever designation the owner may choose, and be sold as a unit.
    5. A triennial assessment attached to the original assessment was brought from the commissioners’ office. This was evidence of an assessment without more.
    6. The tax laws prescribe no mode of keeping assessment books or that any shall be kept, excepting so far as is involved in the general direction that unseated land shall be valued, &e., as other property.
    7. The maxim “ omnia prcesumuntur rite esse acta” applies to whatever method may be adopted and whatever evidence of official action may exist in the commissioners’office.
    8. There is nothing to which the maxim applies with so much force as a tax title.
    9. Land becomes debtor for tax by being returned, assessed and valued and the rate per cent, fixed; carrying out the amount of tax is merely clerical.
    May 16th 1870.
    Before Thompson, C. J., Read, Agnew and, Sharswood, JJ.
    Error to the Court of Common Pleas of Centre county: No. 86, to May Term 1870.
    This was an action of ejectment to August Term 1866 by Jacob D. Heft against J. P. Gephart for 4997 acres of land in Gregg and Penn townships. The case was tried, February 5th 1868, before Barrett, P. J., of the 22d District.
    The plaintiff gave in evidence: 19 warrants of 400 acres each and surveys; patents to Thomas P. Cope in November 1796, and deed March 10th 1850 from Cope to William L. Musser. The deed to Musser described the land as “ all that large body and tract of land situate, &c., consisting of sundry tracts and parts of tracts of land as by original surveys made and returned as hereinafter specified bounded,” &c., then followed the courses and distances around the whole body “ containing 4997 acres surveyed on warrants dated respectively on the 24th day of March 1794 to Hannah Pimm,” &c., naming the warrantees. Deed December 8th 1851, W. L. Musser to Daniel A. Musser for an undivided moiety. Judgment, April 80th 1855, Philip B. Musser against William L. Musser for $2588.62. Fi. fa. to August Term 1855, and levy “ on all that large body and tracts of land,” and described by names of warrantees as in Musser’s deed, with two large saw-mills and other buildings erected thereon. Inquisition, August 25th, extended the land at a rent of $1800 per annum at which it was retained by the defendant. The defendant having failed to pay the rent, his undivided half of the 4997 acres was sold by the sheriff to Benjamin Kemmerer, the sheriff’s deed having been acknowledged November 28th 1856. He gave evidence showing that Kemmerer’s title was vested in him.
    The defendant claimed under a tax title to 15 of the tracts, and gave evidence of the triennial assessment in 1850 in Penn township of 16 smaller tracts in different warrantee names and of different number of acres, William L. Musser being named as owner, and of 8 tracts in different warrantee names (some the same as in the foregoing 16 tracts), Thomas P. Cope named as owner; also assessment in same year in Gregg township in the names of some of same warrantees, W. L. Musser, owner. These warrantee names were those (except one) named in the deed to Cope.
    John Moran, who was clerk of the commissioners, testified that a book shown him was the assessment book for 1853, and W. H. Blair (who purchased these tracts) had access to it.
    George Livingston, commissioners’ clerk from 1851 to 1856 and afterwards county treasurer, testified that he made entries on a paper relating to Penn township in the book; the paper was in the office; it was attached by wafers to a page of the book. The paper was a list of tracts containing several columns, viz.: “number of acres,” “ warrantees’ names,” “ valuation per acre,” “ valuation per tract,” “owners.” There were 25 tracts; 23 of these tracts were in warrantee names of land conveyed to Cope. Philip Airman, W. L. and D. Musser and T. P. Cope were named as owners. The plaintiff objected to the admission of this book with the list; it was admitted and a bill of exceptions sealed. Defendant offered “ Unseated Land Book, No. 8.” In this was a list containing 15 tracts in the names of same warantees. The assessment of one, William Montgomery, was in different columns, for valuation, county, road, school and state taxes; the valuation and different taxes were stated separately for the years from 1850 to 1855 including both. As to the remaining tracts there were stated only the number of acres, the names of the warrantees and the valuation of the land. The admission of this book was objected to “ because there is a paper pasted on the leaf over some writing.” The evidence was admitted and bill of exceptions sealed.
    There was also an entry for Gregg township of somewhat similar character. On the 29th of April 1856, William Musser paid $20, on account of taxes and costs. The taxes and costs on Penn township lands amounted in the whole to $87. These lands except three, one in the name of Thomas Hamilton, were sold in separate tracts by the treasurer for taxes to W. H. Blair, in June 1856. Three of these tracts were in the names of Hannah Pimm, Jonathan Walker and Andrew Kennedy, respectively.
    Livingstone testified that the paper pasted in the book was in his handwriting; the writing under it was a receipt for the $20. He added the following to the receipt:—
    “Notwithstanding the above $20 was paid, the parties agreed that the lands should be sold, and they were sold to W. H. Blair, with the exception of Thomas Hamilton, Henry Antis and James Tower.” This was added by witness of his own accord in consequence of a complaint made by Blair, that the receipt standing on the book would show that nearly all the tax had been paid. Blair had told witness a few days before the sale, that Musser agreed the lands should be sold. The witness interleaved in the book a tabular statement, carrying out the amounts due by each tract for the several different taxes and for the several years as in the case of the Montgomery — the Montgomery being included.
    The following was written at the bottom of the statement:—
    “ County tax $3.47 Taxes for 1852-3-4 and 5
    Road . 4.30 April 28, paidWm. L. Musser County $6.23
    School . 4.30 except Henry Curtes and State 12.32
    State . 6.12 James Tower. Road 8.64
    School 8.64
    $18.19 -
    John H. Morrison, Treas. $35.83
    Cost of advertising 7.50
    $43.33"
    He said, “ The assessments were made for the four years in February, or March 1856, at one time I made them from the previous valuation in the book. I made the valuation from the valuations appearing on the unseated land book. The $20 remained in the treasury, and is the same which is credited on the bill. I charged the rates from the returns of the school directors and supervisors.”
    The defendants offered in evidence fourteen deeds, dated August 1st 1856, from the treasurer to William H. Blair, for the several tracts sold to Mm for taxes. The plaintiff objected to their admission, because the taxes were assessed within four or five months of the sale; because being predicated of the assessment of 1850, the taxes of that year had been overpaid by Musser; because the paper attached to the assessment of 1853 could not sustain a charge of taxes in 1856 and because the rates have not been established by legal testimony. The evidence was admitted and a bill of exceptions sealed.
    John Moran, then clerk of the commissioners, was recalled. He testified that he had made search for the returns of the supervisors and school directors; it was not the habit to preserve them: Witness said, “ I can find a few for the last year or two. We always made a tabular statement of the returns made for the year, in the front of the land book and did not preserve them. I can find no such returns for the years 1852-3-4 and 5.”
    Livingston was again called and said: “ I made the assessment or charge of taxes against these lands from the returns made of the returns of the supervisors and school directors for the four years as to the rates levied.”
    The defendant then gave in evidence a treasurer’s sale of the Hamilton, in June 1858 and traced the title to the defendant. He also gave in evidence a deed, dated February 4th 1865 from Blair to Daniel Gr. Bush for the 14 tracts purchased by him and deed October 3d 1865 from Bush to the defendant.
    The defendant rested.
    The plaintiffs called Daniel Musser, who testified: “ I did not know of the sale for between six months and a year; I first learned it from Mr. Duncan. My brother then told me it was then sold, a few days before; the two years expired, I came up and redeemed my half; the Andrew Kennedy was seated in 1860, we built a mill on it, the Hannah Pimm was seated in 1852 or 1853; in one of .those years we built a mill on it. The Jonathan Walker was seated before we bought it, and somebody has lived on it ever since. A family has always lived on it. Have taxes for them on the seated list. I run the mills until 1864. Have run them ever since, every year. I did this myself, being the owner of one-half. Think the Andrew Kennedy, was on the seated list in 1851. We built the mill on the Hannah Pimm, in 1851 or ’52. Kemmerer has not been in possession since 1856.”
    The following points submitted by the plaintiff were negatived:—
    7. If even the jury could find said paper writing purporting to be a valuation and return of the township assessors for the year 1853 regular, yet the absence of legal evidence of the rates fixed by the board of school directors, supervisors and the commissioners, in the said several years, is so entirely wanting, that the tax could not be said (if Mr. Livingston, defendant’s own witness is to be believed) to have been due one year at the time of the sale.
    8. That if the jury find from the evidence that during the years 1852, 1858, 1854 and 1855, William L. Musser and Daniel Musser were operating upon the lands, building saw-mills and manufacturing and selling lumber from the body of lands, exercising acts of ownership over the body, with one or more families actually residing upon the body of lands described in the writ, and in the deed from Cope to William L. Musser, the whole body thereof became seated, not liable to sale for taxes as unseated, and not within the jurisdiction of the commissioners as unseated land.
    Judge Barrett in his charge said:—
    * * * “I have been asked to instruct the jury that the assessments and the charging of taxes against these tracts of land were irregular and that in law the sale is void. But the adjudications upon the several questions raised, for too many years, stand in my way. They are questions that must be passed upon by the jury, under the instructions of the court, so far as the law is allowed to control their action.
    [“ The evidence is that these lands stood upon the books of the commissioners as unseated tracts. They were so charged in 1850 and ’51, and the taxes paid by the owners. They were returned by the assessor in 1850, that being the year for the triennial assessment. They were again returned in 1853. The lands returned by the assessor for those townships, were transcribed into what is called the commissioners’ unseated land book, by their authority. They were then charged with the taxes. A copy of that book with the names of the owners — the warrantee names — • the valuation, and the taxes charged, county, state, road and school, was furnished to the treasurer for the purpose of collection. The state tax was a fixed rate by law. The county rate was to be fixed by the commissioners. They did charge the amount upon their books, and that was a sufficient adjudication of the rate. The road and school tax was charged by the commissioners, and the evidence is that the charge was made from rates returned to the commissioners’ office by the supervisors and the school directors for the respective years; that such returns were made and acted upon; that it was not the custom of the commissioners to preserve such returns, and that they are not now to be found in the office. The clerk swears that a tabular statement of the returns was made, and from the rates so returned the tax was charged. That tabular statement is not to be found. In view of the loss of these papers, the record made, and the evidence of the clerk is sufficient to show that there was an adjudication by the proper township officers, and that the rate was fixed by them, before the taxes were entered in the same book.

      “We must not lose sight of what constitutes a good assessment. The acts of the township assessors; the return by them of the tract as unseated, with the valuation, are the assessment as contemplated by the Act of Assembly. When that is done the power of the assessors over the tract ceases, and therefore it must be complete. In the commissioners’ office it forms the data or the basis from which the taxes are charged. The act of the commissioners is not the assessment. It is but the simple charging of the taxes year after year during the continuance of the assessment, and as the rates are fixed. They have no power over any of the rates except for county purposes.
    “ If the assessment and valuation were in the office, and the rate fixed, from which the calculation could at any time be made to ascertain the amount of the taxes, it is sufficient, notwithstanding it may not have been made and the amount carried out in the same book one whole year before the sale. It is only necessary that the assessment be made and the taxes remain due and unpaid for one year.]
    [“When these lands were sold Musser was the owner. He had notice of the assessments and levy of taxes. He made an effort to pay the amount, and did pay $20 on account to the treasurer. He tried to negotiate for a postponement of the sale-and failed. He knew they were sold and he knew that he had two years to redeem. Kemmerer, under whom the plaintiff claims, acquired title five months after the sale. Musser having been divested of title by a judicial sale had no interest in redeeming, and did not redeem. Kemmerer may not have known of the sale, but whose business was it to inform him? The-public records would have afforded the notice.” * * *
    “ The taxes. and costs charged amounted to $48.33. Musser paid $20 upon the whole amount. It did not reach one-half of the whole amount charged. The treasurer treated it as insufficient, and sold the lands afterwards, crediting the amount upon the sales, and in this we think he did right. Only the owner could complain of such appropriation of his money, and he is silent upon the subject.]
    “ If, however, the jury should find that only the taxes for the year 1852 were regularly assessed and charged according to the Act of Assembly, then the payment of the twenty dollars extinguishes the whole of the taxes for that year, and the sale would be void.
    “But if any portion of the taxes for either of the years remained due and unpaid for one year, it is sufficient to sustain the sale, provided the tract was unseated.” * * *
    The jury found for the plaintiff the undivided half of six tracts, naming them, and the whole of a seventh, except eighty acres.
    The plaintiff took a writ of error. His first three assignments were to the admissions of the evidence; 4th and 5th, the answers to the points; 6th and 7th, the parts of the charge in brackets.

      W. P. Wilson and H. N. McAllister (with whom was J. A. Bearer), for plaintiff in error.
    The seating of one tract with a view to use all, under the circumstances of this case, made all seated: Lackawanna Iron Co. v. Pales, 5 P. F. Smith 94; Hole v. Rittenhouse, 1 Casey 491; Kite v. Brown, 5 Barr 291; Nearhoff v. Addleman, 7 Casey 281.

      Orvis & Alexander, Bush Yocum, and Blair Stitzer, for defendant in error.
    Where there is evidence that land has been returned and valuation put on it one year before the sale, the sale will be sustained: Miller v. Hale, 2 Casey 435; Wells v. Smyth, 5 P. F. Smith 163; Act of April 15th 1834, § 8, Pamph. L. 512, Purd. 936, pl. 19; Laird v. Hiester, 12 Harris 462; Cuttie v. Brockway, Id. 145. Any unpaid balance of tax will support a sale: Frick v. Sterret, 4 W. & S. 269. The holder is bound to return a description of “each and every tract” he holds: Act of March 28th 1806, § 1, 4 Smith’s L., p. 346, Purd. 990, pl. 3; Harper v. McKeehan, 3 W. & S. 238.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

It was properly conceded by the learned counsel for the plaintiff in error on the argument of this case, that the several assignments of error presented but two questions, viz. : was the land in question, consisting of some fifteen separate warrants and parts of warrants, to be regarded as all one tract, and seated, because on one of them a saw-mill had been erected by the owners of the whole, with a view to use the whole to supply timber for the manufacture of lumber at the mill? And, secondly, if not, were the taxes for the tracts constituting the land in question due and unpaid, and assessed at least one whole year before the sale ?

We think it a task of difficulty to frame an argument upon the laws for the assessment and collection of taxes on unseated lands, which would be even plausible, in its support of a theory that the meditated use of a body of lands, consisting of numerous distinct original surveys, would so consolidate them as to constitute one body, and in that form challenge the notice of the public officers against the public records that they were several tracts. The idea conflicts with the tax system regarding unseated lands, which treats them entirely in reference to the original warrants when not otherwise directed by the owners.

This is apparent in the provisions of the 2d section of the Act of 3d April 1804, requiring county surveyors to furnish the names of warrantees to aid the county commissioners in levying and collecting taxes, and in the supplement thereto, passed the 28th March 1806, requiring the owners to furnish a list of “ each and every tract” of unseated lands held by them, with the name of the warrantee, under the penalty of having a fourfold tax assessed on “ every tract” not so returned. Surveys on warrants as subdivisions of the public lands, were accessible to the taxing officers, or intended so to be by the public records, and by these the officers have ever gone, unless unseated lands have been returned by the owners by different designations.

No doubt portions of distinct warrants becoming united in fact by purchase, might be returned and assessed in this new form by whatever designation their owner might choose, and be sold as a unit: Harper v. McKeehan, 3 W. & S. 238, sustains this. Nor am I disposed to dispute the concession of the counsel of the defendant in error, which goes the length of admitting that the whole 5000 acres in this case, if returned by the owners as one tract, might have been affected by the seating of any portion of it, so as to exempt it all from sale. But it is not necessary to say that it would, for that is not this case. It remained for the years it was assessed with the taxes for which it was sold, separate and distinct tracts, so far as the public was concerned, and the assessing officers had nothing to go by, but the designation of the several warrantees. Thus it was assessed, and thus it was sold, and the titles can only be affected by those things, which affect any and all other separate and distinct surveys.

The cases cited to sustain the view of the plaintiff in error, a're cases arising under the Statute of Limitations, where a large body of lands consisting of more than one tract has long been held, known and used as a unit, and for the same purpose requiring it so to be held. The argument here only derives such support for these cases as common features sometimes give to entirely dissimilar subjects; none whatever. There was not a shadow even, to show such a state of affairs here, excepting the deed from Cope to W. L. Musser, but there was no return to the taxing officers by the owners to give it any such character, if this might be. We are therefore not to be controlled by mere resemblances in cases. Without further elaboration, however, of this point, we think that all the rulings of the learned judge in relation to it were in accordance with well-settled law and practice, and must be sustained.

The other principal error discussed by the counsel for the plaintiffs in error is without merit. In most cases of tax sales the questions presented are usually mere questions of regularity. The argument here has in fact only this, to give it plausibility. But the 4th section of the Act of the 14th of March 1815 sets aside all this by declaring “ 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 deemed good and legal.” The operation of this provision brings into full play the preceding portion of the section wherein it is declared, that where a tax has been assessed on unseated land, and remains due and unpaid for one whole year, and is sold, the owner may redeem the same within two years, or if the tax can be shown to have been previously paid, the owner may recover his land, “ but in no other cases and on no other plea shall an action be maintained.”

The pretence of payment in the case in hand was an entire failure on every ground. The amount of money sent to the treasurer by W., L. Musser, did not pay the amount due on the undivided interest he had in the land, together with the costs accrued for advertising. The treasurer was not bound therefore to receive such a partial payment on account of his interest. He ought to have paid the whole. The treasurer should have required all or none to have been paid. We need not place the decision exclusively on this ground, however, for the other ground, that the taxes had been previously paid, has not been shown to have been done in order to entitle the plaintiff to recover.

Was there a tax assessed on the lands one whole year before the sale in this case, and remained due and, unpaid ? It is contended that there was not; but here again the argument refers to an irregularity merely. To sustain the state and county tax, all that was necessary to be shown was the return of the triennial assessment, attached as it was to the original assessment, both for that year, and brought from the commissioners’ office. It was evidence' of an assessment without more: Act of 8th April 1842, § 21.

It has been held by the court, and is not to be doubted, that the tax laws prescribe no mode of keeping assessment books, or that any shall be kept, excepting so far as is involved in the general direction that unseated lands “ shall be valued and assessed in the same manner as other property:” Laird v. Hiester, 12 Harris 462. To whatever method may be adopted in the office, and to whatever evidence of official action that may exist in the commissioners’ office, the maxim omnia prcesumuntur rite esse acta applies. There is nothing to which the maxim applies with so much force as a tax title: Cuttle v. Brockway, 12 Harris 145. The rate per cent, of the tax is required by law to be determined in April after the triennial assessment by the commissioners.

In the absence of proof to the contrary, the presumption becomes conclusive that it was done in the townships in which the lands in question lie. There was no proof to the contrary, and the objection to the state and county is without any force. The rate per cent, being fixed, and a valuation of the land returned, constituted an assessment.

The work of calculating and carrying out the amount or sum due on each tract, was merely clerical, and could be done at any time when anybody might wish to pay the tax, or for the purpose of advertisement by the treasurer. The land was made debtor by being returned assessed and valued and the rate per cent. fixed. The amount was a mere arithmetical process, .and subject to the maxim id certum est quod certum reddi potest. The valuation and return by the assessors as shown by the paper attached to the assessment book, was a question of fact left to' the jury, and they found in favor of it.

The testimony in regard to the road and school taxes, if believed, and it undoubtedly was, for it was not contradicted, constituted a good assessment for township purposes, and although it may seem somewhat slovenly and irregular, it was not void. These township officers made returns of the rate per cent, levied by them on the valuation of the unseated lands in the township. This was transferred to a tabular statement of unseated lands kept in the land book for each year, says the clerk of the commissioners, and the returns were not preserved and not to be found. They were not required to be preserved. “I made the assessment,” says the treasurer, “ or charge of taxes against these lands, from the returns of the supervisors and school directors.” That is from the tabular statement. This was not an assessment; it was the mere clerical action of carrying out the amount already assessed— a simple calculation of what the amount of the tax was — a multiplication of the rate per cent, into the valuation. The assessment was the return of the township officers; the calculation anybody could make; and applying the presumption which we are bound to make, that the township officers levied their rate per cent, and returned it when required by law, there is no room to doubt that the taxes for which these lands were sold was levied and due for more than a year before the sale, and that the sale was legal and valid. We see nothing else in the case which requires special notice, and are of opinion that the judgment ought to be affirmed.

Judgment affirmed.


text:
    Beatty versus The Lycoming County Mutual Insurance Co. The Lycoming County Mutual Insurance Co. versus Beatty.
    1. A condition in a fire policy was that notice of a fire should be given to the “ secretary forthwith.” The morning after the fire, the insured, and the local agent of the company, with his counsel, visited and examined the premises; the insured was examined on oath, his statement signed by him was sent next day by the agent to the secretary. Held, that this was a compliance with the condition.
    2. The condition required that there should be given to the secretary within, thirty days “ a particular account of such loss.” The notice was a loss of “ household furniture $367, groceries $233,” the same as in the policy. Held, that the court below properly ruled that this was not a compliance with the condition: held, also, that the question of sufficiency should not have been submitted to the jury.
    4. To constitute waiver of notice, there should be some official act or declaration of the company during the currency of the time, something from which the insured might reasonably infer that the underwriters did not mean to insist on it.
    5. Mere silence is not enough to infer waiver.
    6. After the thirty days without “ a particular account,” nothing but an express agreement with the company would be sufficient.
    7. Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350, Inland Ins. Co. v. Stauffer, 9 Casey 397, distinguished.
    May 16th and 17th. 1870.
    Before Thompson, C. J., Read, Askew and Sharswood, JJ.

      Writs of error to the Court of Common Pleas of Blair county: No. 74 and 87, to May Term 1868.
    This was an action of covenant on two policies of insurance, to January Term 1859, by Daniel Beatty against the Lycoming County Insurance Company. The case had been before tried, and the judgment reversed in the Supreme Court. (2 P. E. Smith 456).
    The last trial was February 4th 1868, before Taylor, P. J. The plaintiff gave in evidence two policies from the defendants to him; one; No. 37,775, dated July 29th 1854, insuring $600, viz., on “household furniture” $367 andón “groceries” $233. The other, No. 41,140, dated May 1st 1855, insuring $600 on a frame dwelling-house in Duncansville, near Altoona. One of the conditions of the insurance was, that in case of fire “ the insured shall forthwith give notice thereof to the secretary, and within thirty days' after said loss shall deliver to the secretary a' particular account of such loss or damage, signed by his or her or their own band or hands, or by their guardian, attorney or agent.” He gave evidence also of the fire and of the property lost.
    James McCloskey testified: “John Shoemaker was acting as agent for the insurance company; he was present the day after the fire; McClay Hall was with him; he is a lawyer; they were taking testimony concerning the fire; there was a number examined as witnesses; McClay Hall acted as counsel on behalf of the company; he took down testimony, all that was given; Mr. Beatty was examined, I think he was examined in regard to his losses; after they left the tavern Mr. Beatty was complaining that he did not know how to proceed; Mr. Beatty said he would go down and employ Mr. Blair to carry on the matter and write out the notice; Mr. Shoemaker replied to him that he had met with a great loss, and he was going to write to them and notify the company immediately; I think Mr. Hall said to him, You will have thirty days to go and come on, anyhow, he need not do it until Mr. Shoemaker heard from them; Mr. Shoemaker said, I don’t think you will have any trouble with it.”
    Thomas Hollan testified: “ I was present at the arbitration of the case; Mr. Shoemaker was represented as the agent, at the arbitration; they had received some anonymous letters; one was produced; they said they couldn’t find the other one; the charge was that Mr. Beatty had fired the building himself — that there was foul play; there was no other objection made at that time than that.” * * * *
    The plaintiff proved the handwriting of Shoemaker, and that he was postmaster at Altoona. He then gave in evidence the copy of a notice of the fire to the secretary of the defendants at Muncy, Pennsylvania, as follows, viz., * * * “ One frame house, insured in the Lycoming County Mutual Insurance Company, &c., was, on the 31st day of August 1858, completely destroyed by fire and entirely lost.
    “ You are also hereby notified that at the same time and place, the household furniture and groceries of the undersigned, insured by policy of insurance, dated the 29th day of July 1854, and numbered 37,775, as follows, viz., household furniture, $367, groceries, $233, making together the sum of $600, were also lost and destroyed by fire aforesaid; the whole property of undersigned in the house at the time being destroyed, with the exception only of a few articles of household furniture.
    “ You will take notice further, that the said the Lycoming County Mutual Insurance Company will be looked to by me for payment in full of the amount and sum insured by the policies aforesaid, and payment in full hereof will be required and demanded from them.
    “ Daniel Beatty.
    “ Duncansville, Blair Co., Pa.”
    Attached was the affidavit of plaintiff, dated September 20th 1858, “that the statements made in the foregoing notice are correct and true.”
    The following also was attached:—
    “ Copy of the within notice compared with original by me, and enclosed to the secretary of the Lycoming County Mutual Insurance Company, this day by mail, September.
    “John Shoemaker, P. M.”
    For the defendants. John Shoemaker testified : “ I was agent for Lycoming Insurance Company at time of fire; I resided at Altoona; I was agent to take applications and make surveys; that was all my authority at that time; I also acted as receiver; Joshua Bowman was secretary of company then, and resided at Muncy; I had no authority to act in any other way than I have stated; I had no authority to receive notice of loss ; I -was in the employ of the company when the case was tried before arbitrators at Altoona; L. W. Hall was the attorney of the company; the defence made was on the ground of fraud and want of notice agreeable to contract, and particular statement of loss not having been furnished; no other grounds of defence that I remember; * * * I made an examination next day after the fire; we looked at the place and examined Mr. Beatty and some few others; I had heard in reference to it some dissatisfaction expressed as to, the origin of the fire; I also received an anonymous letter, saying Mr. Beatty should not be paid for his loss, and to satisfy the members of the company an investigation should be made; Mr. Beatty requested me to come up and look at the ruins; I thought over the matter, and thought it best to get McClay Hall to go with, me to make the investigation, which we did; hut it was not done by direction of the company or with their knowledge; it was at my own instance; I communicated to the company that I had investigated the matter; Mr. Beatty did not request me to give notice to the company; he said he would employ Mr. Cress-well ; I think a day or two after I told him it was necessary for him to give notice; he didn’t say anything; the company, after they received notice from Mr. Beatty, wrote to me to resist the claim, and authorized me to employ counsel on the ground that I stated before, of fraud and want of notice, and want of particular statement, as required by the conditions of the policy; I notified Mr. Beatty they wouldn’t pay him, and after that he brought suit; I received that notice as postmaster at Altoona; I compared it and signed the certificate, not as agent — that was given at Altoona in the office; after they received this notice a few days, they instructed me to resist the claim; I told Beatty they would not pay him: * * * the testimony of Beatty and McCauley was written down by Mr. Hall; he was at that time in the office of his brother, L. W. Hall, Esq.; Mr. Hall swore them and took the notes of testimony ; I sent the notes of testimony to Mr. Bowman ; we examined them about the origin of the fire, not particularly about the loss; * * * I was agent when Beatty brought the paper to me; I judged it to have been written by Mr. Cresswell; I put it in the post-office; they merely replied that they had received the notice and to resist the claim; I told Beatty, after I received that letter, that they would not pay him; * * * I think Beatty did say that he could not tell the amount of groceries; he did not hesitate about giving me an account of his loss.”
    The defendants gave in evidence the deposition of Joshua Bowman, their secretary, of which the following is an extract:—
    “ I am familiar with the claim of the plaintiff in this case. John Shoemaker was not an agent of this company at the time of plaintiff’s loss for any other purpose than to take applications; as such an agent he had no authority to receive or accept notices of loss in this or any other case; he had no general or special authority from the company or executive committee to adjust plaintiff’s loss, or do any other act with reference thereto; whatever he did was without the authority or knowledge of the company; the company never received a particular account of plaintiff’s loss or damage, as required by his policy, the policy requiring notice to be given forthwith; the company never did anything looking to a recognition of Beatty’s claim against the company.”
    The defendants’ points were :—
    1. The plaintiff not having given notice of the loss forthwith to the secretary of the company as required by the policies, and not till twenty days after the fire, cannot recover on either policy.
    2. The plaintiff’s account of his loss in his notice, dated September 20th 1868, is not such a particular account of his loss or damage as the terms of the policy require of him, and no particular account of his loss or damage having been delivered to the secretary within thirty days of the fire, he cannot recover on his policy, No. 37,775.
    3. There is no evidence to be submitted to the jury of a waiver by the company, of the requirements of the policies as to the notice to be given forthwith by the plaintiff to the secretary of the company, and the plaintiff cannot recover on either policy.
    4. There is no evidence to be submitted to the jury of a waiver of the requirements of the policy to give a “ particular account of the plaintiff’s loss or damage” within thirty days after the fire, and the plaintiff cannot recover on policy No. 37,775.
    Judge Taylor, in his charge, said:— * * * “ Upon these general facts, the first question which meets us, is, was there a compliance with the condition appended to each policy, to furnish forthwith to the secretary of the company, notice of the fire; and, also, within thirty days afterward the particular statement stipulated in the seventh condition. Here the formal notice, in the handwriting of Mr. Cresswell, forwarded for Mr. Beatty by Mr. Shoemaker, was not sent for twenty days, and we feel fully warranted in saying was not a compliance with the stipulation ‘forthwith’ to give notice of the fire to the secretary. [But we think the affidavit of Mr. Beatty, as to the origin and circumstances of the fire, sworn to and signed by him, and forwarded by Mr. Shoemaker to the secretary two days afterwards, was a sufficient notice of the fire, and a substantial compliance with that part of the condition. It stated as a fact the occurrence of the fire, was signed by the insured, and conveyed with his signature to it, to the secretary, within two or three days ; and no matter by whom or what agency or authority sent or conveyed, it was, in his possession, notice to the company of the fact communicated, on a reasonable construction of the stipulation.] [And we are also of opinion that this affidavit, and the brief formal notice drawn by Mr. Cresswell, and forwarded for Mr. Beatty, twenty days after the fire, conveyed together a sufficiently ‘particular statement’ of the loss of the building, and was a substantial and sufficient compliance with that stipulation in the condition to the policy insuring the building; though they did not, viewed separately or together, convey such a statement of the loss of the goods_insured by the other policy.]
    [ “ It is our opinion, therefore, that if you find the facts as we have stated them, there may be, as it respects this question, a recovery by the plaintiff on policy No. 41,l40, for the loss of the building; but not on the other, No. 37,775, for the loss of the goods insured by it, unless there was a waiver by the defendant of the stipulation requiring a particular account or statement of the loss to be furnished to the secretary within thirty days], — or evidence from which a jury might he allowed to infer or find such waiver ; and that presents the next question.
    SUPREME COURT £Warrislurg [Beatty v. Lycoming Oo. Mutual Ins. Co.]
    “Was there a waiver by the defendant ? The plaintiff alleges there was, as it respects both policies; while the defendant denies that there was as it respects either of them. The only evidence of it is, in what is shown to have been done by Mr. Shoemaker immediately after the fire, and in the correspondence which followed between him and the secretary of the company. Mr. Shoemaker was the local agent of the company residing at Altoona, a few miles from the insured property. It is alleged, and this appears from the evidence to be the fact, that his authority as such agent, was only to take surveys to be submitted to the company for their action, and collect or receive assessments upon policies. If so, it did not include authority to waive any condition or stipulation in a policy. The agent could only bind his principal either directly, by express agreement, or by his acts or conduct, when acting within the scope of his authority. If not authorized to waive directly, by his agreement to do so, he could not do it indirectly; or, in other words, a waiver could not .be inferred from his unauthorized act or conduct, or from what he did upon assumed authority. The stream cannot rise above its source.
    “ If therefore you find that Mr. Shoemaker was only a local agent and clothed only with authority to make surveys and receive assessments, what he did upon his own authority the day after the fire, is not, we instruct you, evidence from which a waiver could be inferred. Nor do we think the letters of the secretary to Mr. Shoemaker dated 17th September, instructing him to employ counsel to resist the claim, and stating to him, as a reason, that they believed there had been ‘foul play,’ should be submitted to your consideration as evidence from which a waiver may be inferred.
    “ The defendant alleges, also, as a further reason why there should be no recovery for the groceries destroyed, that they were not burnt in the house in which they were insured. If they were not, but in any other building, there could not, for that reason, we' say to you, be any recovery for their loss. Whether they were, or were not, is a question of fact to be determined by you from all the evidence.
    “ It remains only to answer the points made and submitted in writing by the defendant’s counsel. We are asked to instruct you,
    “ ‘ 1. That the plaintiff not having given notice of the loss forthwith to the secretary of the company as required by the policies, and not till twenty days after the fire, cannot recover on either policy.’
    “We refuse to answer this point as requested; referring to our general charge for a full and qualified answer.
    “ ‘ 2. That the plaintiff’s account of his loss in his notice, dated September 20th 1868, is not such a particular account of his loss or damage as the terms of the policy require of him, and no particular account of his loss or damage having been delivered to the secretary within thirty days of the fire, he' cannot recover on his policy, No. 87,775.’
    “We answer this point in the affirmative; there being, as we have instructed you in our general charge, no evidence of the furnishing of a particular account or statement of the goods insured in policy No. 37,775; and that there can be no recovery upon that policy.
    “ £ 3. That there is no evidence to be submitted to the jury of a waiver by the company of the requirements of the policies as to the notice to be given forthwith by the plaintiff to the secretary of the company, and that the plaintiff cannot recover on either policy.’
    “We refuse this instruction; but refer you to what we have said in our general charge, for a full answer to this and the 1st point.
    “ £ 4. That there is no evidence to be submitted by the court to the jury of a waiver of the requirements of the policy to give a £ particular account of the plaintiff’s loss or damage’ within thirty days after the fire, and that the plaintiff cannot recover on policy No. 37,775.’
    “ We answer in the affirmative, as requested.” * * *
    The verdict was for the plaintiff for $970.81. Each party took a writ of error.
    The plaintiff’s assignments of error were:—
    1. The latter two portions of the charge in brackets and the answer to the defendants’ 2d point.
    2. The answer to the defendants’ 4th point.
    The defendants’ assignments were: 1 and 2. The refusal of their 1st and 3d points.
    3. The first portion of the charge in brackets.

      S. S. Blair, for Beatty.
    The condition as to notice should be construed liberally: Bartlett v. Union Ins. Co., 46 Maine 500; Walsh v. Washington Ins. Co., 32 N. Y. 427. Whether the account Beatty gave was as particular as the nature of the case allowed was for the jury: Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350. Whether the condition was waived was for the jury: Inland Ins. Co. v. Stauffer, 9 Casey 402; Tayloe v. Merchants’ Ins. Co., 9 How. 390; Lycoming Ins. Co. v. Schreffler, 6 Wright 188; West Branch Ins. Co. v. Helfenstein, 4 Id. 290 ; Francis v. Ocean Ins. Co., 6 Cowen 404; Allegree v. Maryland Ins. Co., 6 Harris & Johnson 408; Etna Fire Ins. Co. v. Tyler, 16 Wendell 385; Kimball v. Hamilton Fire Ins. Co., 8 Bosworth 495 ; Hall v. The Ins. Co., 3 Phila. R. 332; Child v. The Ins. Co., 3 Sanford 26; Kervochan v. The New York Bay Ins. Co., 17 N. Y. 428.

      L. W. Hall and S. Calvin (with whom was D. J. Seff), for the Insurance Company.
    As to waiver: Diehl v. Adams Co. Mutual Ins. Co., 8 P. E. Smith 452; Mitchell v. Lycoming Ins. Co., 1 Id. 402; Lycoming Mutual Ins. Co. v. Updegraff, 4 Wright 312; Same v. Schreffler, supra.

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

Sharswood, J.

Daniel Beatty prosecuted in the court below an action of covenant against the Lycoming County Mutual Insurance Company, to recover for losses by fire on two policies of insurance, one covering his household furniture and groceries, and the other his dwelling-house. Under the charge of the learned judge below he recovered a verdict upon the policy on the dwelling-house, but the jury gave him nothing for his household furniture and groceries. Both parties have sued out’ writs of error to the judgment.

There are several assignments of error, hut all may be disposed of by the resolution of three questions, arising upon the application of an article or condition of each policy requiring that in the case of a loss the insured shall forthwith give notice thereof to the secretary, and within thirty days of the fire a particular account of such loss or damage signed, &c.

The three errors assigned by the insurance company relate to the first question. The learned judge instructed the jury that there was sufficient evidence of notice forthwith given by the assured of the occurrence of the' fire, to fulfil the requirement of the policies in that respect. It appears that the fire occurred August 31st 1858, and that the morning after, the local agent of the company, in company with counsel, visited the premises and made an examination of the circumstances attending it. Daniel Beatty, the insured, was himself examined as a witness under oath, his testimony or statement reduced to writing and signed by him. It was forwarded by the agent to the secretary of the insurance company on the following day, and was received by him. We think the- learned judge was perfectly right in holding this a sufficient notice of the loss within the terms of the policy. It was held in The West Branch Insurance Company v. Helfenstein, 4 Wright 289, in a case in which the policy contained a condition expressed in the same words as this, that a written notice to the secretary from the local agent upon information conveyed to him by the assured is sufficient. There is nothing to prevent the assured from constituting the agent of the company his attorney to give the notice, and if he does give the notice accordingly, the company cannot object without a rule or condition prohibiting the agent from being employed for such purpose. But this case is stronger than that. The statement of the fact and circumstances of the fire was signed by the assured himself, and transmitted through the local agent to the secretary of the company. How it reached the proper destination is entirely immaterial, provided it was forwarded in due and reasonable time, which in this instance is not denied. This disposes of the writ of error of the insurance company.

The second question which is raised by the first assignment of error of the plaintiff below is, whether there was any evidence of such a particular statement of the loss under the policy upon household furniture and groceries as was required by its terms. The learned judge instructed the jury that there was not. The plaintiff maintains that the sufficiency o'f the statement was for the jury, upon the authority of The Franklin Insurance Company v. Updegraff, 7 Wright 850. The report of that case does not furnish us with the statement. It is said in the charge of the court below to have been general, not particular; that it did not specify the different articles consumed. We must assume, however, that some information was given of the character and extent of the loss. It was then for the jury to say whether it was as particular as it should have been. But in this case there was no statement at all. The paper given in evidence as such is a mere reiteration of the description in the policy, namely: “Household furniture, $367 ; groceries, $233, making together the sum of $600, were also lost and destroyed by fire aforesaid, the whole property of undersigned in the house at the time being destroyed, with the exception only of a few articles of household furniture.” It is certainly not necessary in every case to report all the items in detail which constitute the loss. It may be entirely out of the power of the assured to do so. His books and papers may have been destroyed by the fire. But every person assured must be presumed to know enough to be able to remember some particulars, or to give a description if it do not descend to details of the different kinds and value of the articles. There are few men who, with assistance of the members of their family, could not give some description of their household furniture. In The Lycoming County Insurance Company v. Updegraff, 4 Wright 311, an instruction to the jury that a statement of this character was not such a particular account of the loss as was required by the,policy, was approved and affirmed by this court. This assignment of error, therefore, is not sustained.

The only remaining question which is raised by the plaintiffs’ second assignment is, whether there was any evidence of waiver by the company of the condition requiring a particular statement. The learned judge held that there was not, and we think rightly. It was required to be within thirty days after the fire. Now to constitute a waiver there should be shown some official act or declaration by the company during the currency of the time, dispensing with it; something from which the assured might reasonably infer that the underwriters did not mean to insist upon it. Ah is remarked by the present .Chief Justice in Diehl v. Adams County Insurance Company, 8 P. E. Smith 452, “this never occurs unless intended or where the act relied on ought in equity to estop the party from denying it.” Mere silence is not enough. After the thirty days had expired without any statement, nothing but the express agreement of the company could renew or revivify the contract. Had a statement been furnished, within the time it might have been the duty of the insurers to notify the assured of any merely formal defect so that it might be remedied. If the paper dated September 20th 1858, was to be regarded as a statement and not a mere notice of the loss, the defects of it were substantial, not formal merely. The case of The Inland Insurance Company v. Stauffer, 9 Casey 397, was where a notice' of loss was given to a director and not to the secretary. A few days after-wards the president of the company and another director canm out to view the ruins, meeting there committees from other insurance companies and avowing that they came on the business of the insurers. These facts it was held might be submitted with others to the jury as evidence of a waiver of a strict and formal compliance with the condition. That case is in none of its circumstances parallel with this. The second assignment of error of the plaintiff is therefore not sustained.

Judgment affirmed.