text:
    Torrens et al. versus Campbell.
    1. A firm of which Campbell was a partner, indebted to Calvin sold out to Tiernan. Torrens and Campbell formed a partnership and agreed by writing that Campbell was to buy Tiernan’s interest and put it into the partnership as his part of the capital, and the partnership to pay all the debts of the first firm. Held, that Calvin could not maintain an action against Torrens and Campbell in his own name.
    2. Where a contract is for the benefit of the contracting party and a third person is a stranger to the consideration, the action must generally be by the promissee.
    3. When the promissor receives money or property to he converted into money, in trust for another, the action may be in the name of the other.
    4. Evidence that when the agreement was made Campbell showed a list of the firm’s debts which did not contain Calvin’s, was admissible as evidence, that Calvin’s was not one of the debts which it was agreed should be paid.
    5. A father may allow his minor child to contract for himself and hold his wages and after they are earned cannot withdraw his consent. Per Gilmore, P. J.
    6. Blymire v. Boistle, 6 Watts 182; Campbell v. Laeoek, 4 Wright 448, followed.
    November 21st 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 191, to October and November Term 1873.

      ■ This was an action of assumpsit, brought February 18th 1869, by Calvin'Campbell, by his next friend Samuel Campbell, against Joseph Torrens and William Campbell. The action was brought by the plaintiff, a minor, to recover wages which he had earned by working as a glass-cutter for the firm of Zimmerman & Co., whose establishment it was alleged had passed into the hands of the defendants, the defendants agreeing to pay the debts due by Zimmerman & Co.
    The declaration was on the common courts.
    The cause was tried January 17th 1873, before Gilmore, P. J.
    For the plaintiff, William Campbell, one of the defendants, testified; that the firm of Zimmerman & .Co., composed of the witness and others, carried on the manufacture of glass in Oookstown, Fayette county; that the plaintiff was employed by that firm in cutting glass and worked for about a year; the firm dissolved in 1867 or 1868, and sold the establishment to John Tiernan; the balance due plaintiff August 6th 1868, was $998.08; on the 4th .of September 1865, witness and Torrens formed a partnership and that balance was then standing to the credit of the plaintiff on the books of Zimmerman & Co.
    The plaintiff gave evidence to show that by the consent of his father, he made the contract himself with Zimmerman & Co., and was to receive his wages for his own use.
    The’ agreement of partnership between Torrens and William Campbell was given in evidence; it was dated September 4th 1868, and contained the following clauses:—
    “ 4. -Mr. Torrens shall contribute to the capital account $6000 in cash.
    “ 5. Mr. Campbell shall contribute $3000 in his interest in the Nauvoo Glass Works, to be purchased by the firm from John Tiernan, said works being those recently owned by the late firm of Zimmerman & Co., and by them transferred to said Tiernan.
    * * * * * * *

      “ 9. It is agreed that the firm shall become the owners of all debts due the late firm of Zimmerman & Co., recent owners of the Nauvoo .Glass Works, including one against Lorrenz & Wightman, of Pittsburg, of say $2000, more or less, and that they assume and pay the debts owed by said Zimmerman & Co., amounting to say $6600, more or less; this amount being exclusive of John Tiernan’s claim, which will be adjusted in the transfer of real and personal property in the way and manner to be agreed upon.”
    The plaintiff gave evidence that in pursuance of the 9th clause of the agreement, the firm of Torrens & Campbell collected part of the debt due by Lorrenz & Wightman, and also other debts due to the firm of Zimmerman & Co.
    The plaintiff having closed, the defendants offered to prove: “ That before and at the time the agreement between Joseph Torrens and William Campbell was signed, Campbell, who had been one of the firm of Zimmerman & Co., produced a list or schedule of the debts due Zimmerman & Co., amounting to $6738.16, as being the amount they were owing to the parties therein named, subject to be reduced or increased, as the said accounts named might be increased or decreased upon settlement, and which said list or schedule did not contain the account of Calvin Campbell, now in suit.”
    Also : “ That the list of debts produced by William Campbell, due by the firm of Zimmerman & Co., at the time of signing of the article of agreement between Torrens & Campbell was a part of the said article, and of the agreement showing and limiting the amount of debts agreed to be paid, and that the same list does not embrace the debt now in suit, and as some evidence of a conspiracy between William Campbell and the plaintiffs, to defraud the defendant, Torrens.”
    Both offers were rejected and several bills of exception sealed.
    The defendant gave further evidence that the firm of Torrens & Campbell had paid between $8100 and $8600 of debts due by Zimmerman & Co.
    The points of the defendants and their answers were:—
    1. Under the pleadings and evidence the plaintiff cannot recover.
    2. There was no privity of contract between the plaintiff and defendants in the agreement between the defendants, Torrens and Campbell. He is an entire stranger and therefore the plaintiff cannot recover.
    3. The claim sued for in this case not being mentioned or in any way designated in the agreement between Torrens and Campbell, it cannot be established by parol.
    4. The claim is nothing more than a parol contract to pay the debt of another, and therefore comes within the provisions of the Act of 1855.
    Answer to these points:—
    “We are of opinion and so charge you, that under the 9th clause in the contract of 1868, if the plaintiff is a creditor of the company of Zimmerman & Co., he is entitled to recover in this action unless he is precluded on other grounds.”
    5. The plaintiff being a minor at the time the wages sued for were earned they belong to his father, and his father, Samuel Campbell, being indebted at the same time to the same parties in an amount greater than this claim, he cannot sustain this action for the use of his son, because the claim was absorbed and extinguished by his own indebtedness.
    Answer: “ We instruct you that the earnings of a minor child belong to the father, but the father may permit and allow his minor child to contract for himself and hold to his exclusive use his wages, and after he has earned them he cannot withdraw his consent at his own mere will and pleasure. The debt of the father to Zimmerman & Co. could not affect the right of the son to his wages, if allowed by his father, unless there had been or was an arrangement that the wages of the son should be so applied. Even after the wages had been earned the son might have consented to this appropriation, but unless he did so no other person had the power to do it. The fact that the plaintiff had been working for himself, had earned money for himself, and had been employed by William Campbell to work for his firm, would not of itself be sufficient to appropriate his' earnings if his father claimed them of his employers; unless you believe that his father consented that he should have his own earnings, — and particularly so when the son was living in his father’s house at the time he was engaged in work.”
    The verdict was for the plaintiff for $1240. The defendants on a writ of error to the Supreme Court assigned for error,
    1, 2. The rejection of their offers of evidence.
    3-6. The answer to the first four points.
    7. The answer to the fifth point.

      A. Howell, B. Kaine and Kerr Guthrie, for plaintiffs in error. —
    There was no privity of contract between the plaintiff and defendants; if there was liability on the defendants under the agreement to pay Zimmerman’s debts, it was by Torrens to William Campbell: Blymire v. Boistle, 6 Watts 182; Campbell v. Lacock, 4 Wright 448. The plaintiff was a stranger to the consideration of the agreement: De Bolle v. Pennsylvania Insurance Co., 4 Wharton 74; Hubbert v. Borden, 6 Id. 79; Morrison v. Beckey, 6 Watts 349; Cummings v. Klapp, 5 W. & S. 511. The evidence mentioned in the first bill of exceptions would not alter the agreement, it only defined the subject-matter; Zentmyer v. Mittower, 5 Barr 403; Barnhart v. Riddle, 5 Casey 92; Miller v. Fichthorn, 7 Id. 252; Aldridge v. Eshleman, 10 Wright 420.

      O. H. Boyle, for defendant in error.
   The opinion of the court was delivered, January 6th 1874, by

Mercur, J. —

Zimmerman & Co. had been engaged in the muanufacture of window-glass. While thus engaged they became indebted to the plaintiff below. William Campbell, one of the defendants below, was a member of that firm. The firm sold out their works to one Tiernan and dissolved. Tiernan continued the business. Subsequently the two defendants below entered into a written agreement of copartnership therein; they agreed to purchase the said glass-works and to prosecute the business, and that the firm should become the owners of all debts due the late firm, of Zimmerman & Co.” and that they should “assume and pay the debts owned by said Zimmerman & Co., amounting to say $6600, more or less.”

The plaintiff below seeks to recover under this contract, to which he was not a party. The debt due him was not specifically mentioned in the agreement, but he claims it was covered by the general language used. As he was a stranger to th.e contract and to the consideration upon which it rested, he certainly cannot stand upon higher ground than the party under whom he claims to have acquired this new right. Prior to this agreement he had no claim against Torrens. If he now has any, he acquired it by virtue of this contract alone. It is very clear'that Torrens is not estopped from making any valid defence which he has, to the fulfilment of his agreement. If a suit were brought by William Campbell against him, his right to defend upon the ground of fraud, mistake or want of consideration, would be unquestioned. We think any defence which Torrens might make in such a ease, may now be made by the defendants below in this case. As the plaintiff below claims under that contract he must now take subject to it. He cannot enlarge the obligations of Torrens.

The question raised then, by the exclusion of the evidence, is whether it would have been admissible in a suit brought by William Campbell against Torrens upon the contract. It will be observed that Torrens, had no knowledge of the liabilities of Zimmerman & Co., further than was stated or represented by William Campbell. The defendants in error offered to prove by James Dickson, who was the subscribing witness to the agreement, that before and at the time the agreement was signed, William Campbell produced a list or schedule of the debts due by Zimmerman & Co., amounting to $6738.16, as being the amount they were owing to the parties therein named, subject to be increased or decreased upon settlement of said account, and “that the list or schedule did not contain the account of Calvin Campbell, now in suit.” The offer substantially was to show that Torrens’s agreement was predicated of the list of demands exhibited by William Campbell, and represented to be all the debts due by Zimmerman & Co., or at least, all that the parties to the contract assumed to pay. It also appears by the evidence that the firm of Torrens & Campbell had already paid from $1500 to $2000 of the debts due by Zimmerman & Co., more than the $6600.

The authorities are clear and numerous that parol evidence may be given of what passed between the parties at and immediately before the execution of a writing, where the party was induced to execute the writing by the parol promise proposed to be given in evidence. The evidence, however, should be clear and indubitable to change the effect of the written instrument. We think the evidence clearly admissible, as it tends to show that the agreement in question was entered into under the statement of one party, and the relief and confidence of the other, which negatives any obligation to pay the debt of the plaintiff below. The first assignment is therefore sustained.

The second assignment gives the specific purpose for which the evidence was then offered. We are unable to see how it would have been evidence of a conspiracy, and for that purpose it was properly rejected.

The third, fourth, fifth and sixth assignments will be considered together. The-question presented is .this: assuming Torrens & Campbell, by an agreement between themselves, agreed to pay the debt due to the plaintiff below, from Zimmerman & Co., can he sustain an action in his own name, against Torrens & Campbell, for the recovery thereof? It does not appear when Tiernan purchased the glass-works of Zimmerman & Co., that he purchased any of the debts due to them or agreed to pay any debts due by them. If he did not, then Torrens by the contract acquired directly from a member of the late firm of Zimmerman & Co. an interest in their assets, and assumed jointly with his partner an obligation to pay their liabilities-. It does not appear what was the amount of debts which was due to the late firm of Zimmerman & Co., and of which the defendants below agreed to become the owners,” nor whether it was equal to the amount they agreed to pay. The evidence, however, does show that the defendants had collected several hundred dollars out of those assets. Nor does the written agreement distinctly show in what manner the parties were to obtain the ownership of the debts due to the late firm of Zimmerman & Co. In the absence of any specific testimony it may be reasonable to assume that William Campbell had previously become the owner of the debts due to Zimmerman & Co., and had assumed their liabilities, and that by the agreement between the defendants below they acquired assets equal to the amount of liabilities they assumed. * ■

The general rule undoubtedly is that where the contract is for the benefit of the contracting party, and the third person is a stranger to the consideration, the action must be by the promissee : Blymire v. Boistle, 6 Watts 182; Morrison v. Beckey, Id. 349; Hubbert v. Borden et al., 6 Whar. 79; Ramsdale v. Horton, 3 Barr 330; Campbell v. Lacock, 4 Wright 448. A distinction, however, has been made where property has been put into the hands of the person sought to be charged, at the time of his agreement to pay the debt due to a third person. Hence, where Patterson & Lambdin, being manufacturers, failed and were unable to pay their workmen, and made a general assignment of their property to Holdship, who promised Patterson to pay the workmen, it was held that one of the workmen could maintain an action against Holdship: Hind v. Holdship, 2 Watts 104. It is there said by Justice Rogers, a consideration is sufficient if it arises from any act of the plaintiff from which the defendant or a stranger derives any benefit, if such act is performed by the plaintiff with the assent, express or implied, of the defendant, or by reason of any damage or any suspension of the plaintiff’s right at law or in equity ; “ or any possibility of loss occasioned to the plaintiff by the promise of another.” So in Beers v. Robinson, 9 Barr 229, it was held, where Keenan held notes taken upon a sale of his property at vendue, transferred those notes to Beers under an agreement of the latter that he would pay Keenan’s debts, that one of Keenan’s creditors could sustain an action upon that promise. It is true that case limits the liability of Beers to the value of the property received by him, but that is because his contract expressly so limited it. The case of Vincent v. Watson, 6 Harris 96, was this: Irvin owned and operated certain furnaces and ore-banks and was indebted to his workmen. He let the property to Watson & Whitaker, and sold to them all his personal property at the furnaces, and they were to collect and account to Irvin for all the debts due him at one of the furnaces. They further agreed “ to assume and pay whatever domestic debts or liabilities of said Irvin they may think proper, and to be allowed for the same.” They afterwards publicly declared that they had assumed and would pay all the debts of the hands and of the surrounding farmers. It was held that one of the creditors of Irvin might maintain an action against the lessees upon their assumption to pay the creditors. The same principle is recognised in Bellas v. Fagely, 7 Harris 273.

I understand the rule to be this, where the promissor receives money, or personal property to be converted into money, in trust for a third party, the action may be sustained in the name of the latter. The other assignments are not sustained.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Merour, J. —

license: Public Domain

text:
    Pattison versus Armstrong et al.

    1. McGuier bought Pattison’s land at sheriff’s sale and sold to Armstrong. Pattison, alleging that by agreement with McGuier the land was bought in trust for him and that Armstrong had notice of the trust, brought ejectment against Armstrong, who died before the trial. Held, that Pattison was competent to testify as to the agreement between himself and McGuier.
    2. The death of an intervening vendee will not, under the Act of April 15th 1869, exclude either of the parties to the original contract from testifying, both being alive.
    3. Karns v. Tanner, 16 P. P. Smith 297, followed.
    November 21st 1873.
    Before Read, C. J., Ahnew, Sharswood, Williams and Mercur, JJ.

      Error to the Court of Common Pleas of Washington county: Of October and November Term 1873, No. 174.
    This was an action of ejectment, commenced May 31st 1870, by John Pattison against Martin Armstrong, deceased, and Mary Henderson, to recover a tract of ninety acres of land in Washington county.
    The plaintiff, in 1860, was in. possession of the land in dispute and claimed to have the title to it.
    In that year there were two judgments in the Court of Common Pleas of Washington county against the plaintiff: one to November Term 1859, for $501.37, in favor of Samuel Hazlett; and the other to February Term 1860, for $506.44, in favor of William Smith & Son; both had been reduced by payments. The latter judgment being pressed by execution, J. B. McGuier, on the 6th of April 1861, took an assignment of both. The land was after-wards sold on an execution upon the Smith judgment, purchased by McGuier at the sheriff’s sale and a deed made to him on the 28th of August 1861. On the 14th of May 1864, McGuier conveyed the land to Martin Armstrong. Armstrong died after the commencement of this action, and his heirs at law were substituted.
    The plaintiff alleged that there was an agreement between him and McGuier, that McGuier would advance the money due on the judgments, take assignments of. them and take the rents of the farm till he should be reimbursed, and then the plaintiff’ was to have his farm again; that afterwards*McGuier pressed the land to sale on the Smith judgment, bought it and sold to Armstrong, as above stated; and that Armstrong had notice of the agreement at the time he purchased.
    On the trial, February 4th 1872, before Acheson, P. J., the plaintiff was offered as a witness “ to prove the agreement between himself and J. B. McGuier, the vendor of Martin Armstrong, by which the said McGuier agreed to pay off certain judgments of Smith and Hazlett and receive the rents and profits of the land until he was reimbursed.”
    The defendants objected, on the ground that Martin Armstrong, one of the co-defendants and the holder of the legal title at the impetration of the writ, is since dead, as appears by the substitution of his heirs at law on the record.
    The court overruled the offer, and sealed a bill of exceptions.
    There was much evidence given by the plaintiff for the purpose of establishing a trust ex maleficio for him, or a mortgage to McGuier and notice to Armstrong, which, as the opinion of the Supreme Court is solely upon the rejection of the plaintiff’s offer of evidence, it is unnecessary to give in detail.
    The plaintiff submitted several points, which the court declined to affirm, and, amongst other things, charged:—
    “ Upon the whole case, we think there is no trust such as the plaintiff suggests in his first point, nor any mortgage, or notice to Armstrong, as suggested in his third point. Considering it, therefore, to be our clear duty to withdraw the case from your consideration, it is unnecessary to refer further to the plaintiff’s points. They are answered by our charge. The legal title of the defendants cannot be overthrown by evidence so loose, vague and inconclusive as that furnished by the plaintiff, and your verdict must be for the defendants.”
    The verdict was for the defendants.
    The plaintiff took out a writ of error. His assignments of error were the rejection of his offer of evidence and the charge of the court.

      Braden $ Miller, for plaintiff in error,
    referred to the Act of April 15th 1869, relating to parties testifying.

      A. Wilson and Mart Brady, for defendants in error,
    referred to same act and its supplement of April 9th 1870.
   The opinion of the court was delivered, January 5th 1874, by

Merour, J. —

The first assignment of error is to the rejection of the plaintiff as a witness. The offer was to prove a contract made between the plaintiff and one J. B.,McGuier, in relation to the land in controversy. The exclusion of the plaintiff is put upon the ground that McGuier sold the land to Martin Armstrong, who has since died, and the defendants claim under him: that Armstrong being dead, the plaintiff is thereby made incompetent by the proviso to the first section of the Act of 15th April 1869. That section declares: “No interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding.” The proviso thereto, inter alia, declares that the act shall not apply to actions “ where the assignor of the thing or contract in action may be dead.” This evidently means where one of the parties to the particular contract or thing sought to be proved, is dead, .the survivor shall not be permitted to testify in regard to it. Hence, if the offer was to prove a contract between the plaintiff and Armstrong, undoubtedly the plaintiff would be incompetent for that purpose. As death, in that case, would have closed the mouth of one of the parties to the contract, the law will close the mouth of the other, when he is a party to the record. The rejected offer, however, 'was to prove a contract between parties both of whom are now living. The question does not arise under circumstances in which the lips of one party to the contract in question is closed, but when his lips have been opened and he has actually testified in behalf of the defendants.' That it is the inability to testify by one to the transaction that excludes the other, is clearly recognised in Karns et al. v. Tanner, 16 P. F. Smith 297. It is there said by Mr. Justice Agnew: The true spirit of the proviso, then, seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or by that of the law to another, who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now sealed.” We think the death of a subsequent and intervening purchaser, who was not a party to the contract, is insufficient to exclude either of the parties thereto while they are both living. The learned judge, therefore, erred in refusing to permit the plaintiff to testify, and the first assignment is sustained.

As the case goes back for another trial, in which additional evidence may be given, and the second assignment is predicated of the whole evidence, we deem it > unnecessary to discuss that now."

Judgment reversed, and a venire facias die novo awarded.


author: Thompson, C. J. —

text:
    Commonwealth ex rel. Parker et al. versus Emminger.

    1. The return judges of two counties composing a senatorial district, made a due return in their respective counties of the votes for senator, by which it appeared that Weakley had the largest number of votes. The return judges of the whole district refused to sign a certificate of election. Held, that they could be compelled by mandamus to sign a proper certificate.
    2. The judges certified “that from the county returns it appears that in Cumberland, Weakley received 4263 votes and Peffer 4114 votes-; in Franklin, Weakley had 4605 votes and Peffer 3951 votes; and it appearing that fraud and bribery have been made use of in obtaining votes to so large an extent as to vitiate the election or change the result, we decline to certify the election of either of said candidates and refer the subject to the Senate,” &c. Held, the certificate was not a compliance with requirements of the Act of Assembly.
    3. They were bound to certify that the person appearing by the county returns to have the greatest number of votes was elected; the county returns being conclusive on the district return judges ; except perhaps a plain clerical mistake.
    4. The district return judges have no supervisory power to examine what preceded the county returns.
    5. The Senate is the only tribunal to investigate charges of fraud, &c., in the election of one of its members.
    November 16th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

      This was an application at the relation of Isaac B. Parker and other citizens and voters of the Nineteenth Senatorial District of Pennsylvania, composed of the counties of Cumberland and Franklin, for a mandamus to John Emminger, one of the return judges of that district, commanding him to sign a proper certificate that James M. Weakley had been elected senator from that district at an election held on the 10th of October 1871, file such certificate in the office of the prothonotary of Cumberland county, and transmit a duplicate to the secretary of the Commonwealth, as required by the Act of July 2d 1839.
    The petition of the relators set forth that the return judges of Cumberland county certified that at the election Henry K. Peffer received in that county 4114 votes for senator, and James M. Weakley received 4263 votes for the same office, and filed their certificate in the office of the prothonotary of that county; that the return judges of Franklin made and filed a similar certificate that Henry K. Peffer had received in that county for the office of senator 3951 votes, and James M. Weakley had received 4605 votes ; that John Emminger, one of the return judges of Cumberland county who had signed the general return for that county, was appointed return judge from that county for the district, and that Henderson Gr. Skiles, one of the return judges of Franklin county, who had signed the general return for that county, was appointed return judge from that county for that district; that these two return judges met at the court-house in Carlisle on the day appointed by law, and signed a certificate as follows:—
    “ We, the return judges of the 19th Senatorial District, having met at the court-house in the borough of Carlisle, on October 17th 1871, to cast up the votes cast in the said district, composed of the counties of Cumberland and Franklin, for a senator therefrom, do certify that from the county returns it appears that in the county of Cumberland James M. Weakley received 4263 votes, and Henry K. Peffer had 4114 votes. In the county of Franklin J. M. Weakley had 4605 votes and Henry K. Peffer 3951 votes; and-it appearing that fraud and bribery have been made use of in obtaining votes to so large an extent as to vitiate the election or change the result, we decline to certify to the election of either of said candidates, and refer the subject to the senate, which under the Constitution is made the judge of the qualification of its own members. “ John Emminger,
    “H. Gr. Skiles,
    “ Return Judges 19th Sen. Dist., Pa.”
    One copy of this certificate was filed in the prothonorary's office, one transmitted to the secretary of the Commonwealth, and one to James M. Weakley; that afterward Skiles signed a certificate setting forth that James M. Weakley had received the highest number of votes in the Senatorial District, and that he was duly elected senator; this certificate was filed in the prothonotary’s office and transmitted to the secretary of the Commonwealth and Mr. Weakley respectively.
    The petition averred that it appeared by the record as above set forth that Mr. Weakley had received a majority of votes for senator in the 19th district, and was entitled to a certificate of election; that the above-named return judges had refused to perform their duties in this behalf as required by law, and that by such refusal there was no record in the prothonotary’s office of the election of state senator in the 19th district, nor certificate of such election furnished to the secretary of the Commonwealth which would show to the Senate that any one had been elected senator from the 19th district, and the right of the petitioners and others to be represented in the Senate of the Commonwealth by one for whom they had voted and who had been duly elected would be taken away.
    •• The prayer was for a mandamus to compel Emminger, in conjunction with Skiles, to sign, file and transmit according to law a certificate that James M. Weakley had been elected senator of the 19th district.
    Emminger answered, averring that it was not his duty to sign the certificate of election, for the reason that many irregularities were committed in the holding of 'the election, consisting of closing the polls in some districts before the hour fixed bylaw, adjourning to take dinner, receiving votes from persons who were not qualified voters, &e.; and for the reason that undue and improper influences were used with voters, and that numerous other frauds and irregularities, to the best of his belief and. suspicion, had been perpetrated.
    The Commonwealth filed a demurrer.
    The ease was argued by
    . T. M. Marshall, for the Commonwealth; and It. M. Q-ibson and K. W. Weir, for the respondent.

       No paper-books were furnished in this case and the reporter was not able until recently to obtain the record. The decision is now reported at the suggestion of others as containing important principles in connection with the election laws.

   The opinion of the court was delivered, November 16th 1871, by

Thompson, C. J. —

This is an application for a peremptory mandamus to the respondent forthwith to proceed to cast up and sign duplicate returns of the election and notice of election of state senator in the Nineteenth Senatorial district of this Commonwealth, composed of the counties of Cumberland and Franklin, at the election on the second Tuesday of October last, according to the requirements of the 82d, 83d and 84th sections of the Act of Assembly of the 2d of July 1839, which it is charged in the suggestion filed, and has been made to appear; he has hitherto refused to do.

The answer of the respondent is before us, and to this the relators have demurred.

The respondent sets forth in his answer that he, the return judge of the county of Cumberland, met the return judge of the county of Eranklin, H. Gr. Skiles, at the prothonotary’s office at Carlisle, in the county of Cumberland, on the 17th day of October 1871, the time and place fixed for the meeting of the return judges in and for the said district, and did cast up and ascertain from the county returns that it appeared that in the county of Cumberland for senator, “ Henry K. Peffer had 4114 votes, and that James M. Weakley had 4268 votes; in the county of Franklin J. M. Wheatley had 4605 votes, and that Henry K. Peffer had 3951 votes, and that it appearing that fraud and bribery have been made use of in obtaining said votes to so large an extent as to vitiate the said election, or change the result, we decline to certify to the election of either of said candidates, and refer the subject to the Senate, which under the Constitution is made the judge of the qualification of its own members.” This both judgesi signed, and it was forwarded to the secretary of the Commonwealth. Afterwards it appears by the answer of respondent that Henderson Gr. Skiles, the return judge from Franklin, county, on the 20th day of October, signed and forwarded to the secretary of the Commonwealth, and to the said James M. Weakley, the return and notice of election required by the Act of. Assembly. In this the respondent did not join.

It is apparent from the certificate signed by the respondent, as set forth above, that from the county returns James M. Weakley received in the senatorial district a majority of 803 for senator, and was entitled to the certificate mentioned in the Act of Assembly, and notice of his election, viz., the duplicate returns of the fact, one to be sent to the secretary of the Commonwealth, through the post-office, one to be deposited in the prothonotary’s office of the county of Cumberland, and a notice of his election to be sent to him. The returns of the counties presented these facts, and this is admitted in the certificate above mentioned, and set forth by the respondent as a portion of his answer.

The answer or pleas of the respondent against being required by a peremptory mandamus to certify further, as one of the return judges of the Nineteenth senatorial district, are, 1. Because he has already sufficiently certified according to the requirements of the Act of Assembly in the certificate already mentioned.

2. Because, in his capacity as one of the county return judges, he became aware of certain gross irregularties in the mode of conducting the election in several election districts in Cumberland county, which he names and sets forth, and also for want of proper returns by township or district election officers, required to be filed in the prothonotary’s office. He also charges want of care and haste in the county return judges of Cumberland county, in making out the county return for senator as well as other returns.

3. Because, from facts within his own knowledge and other sources, which he alleges can be established by proof, bribery and corruption were resorted to in order to secure the election of the said James M. Weakley,” which facts he states somewhat at large, and alleges that he is prepared to prove them. From all this, he submits that he ought not to be required to make or sign other or further certificates or returns of election than those already signed by him.

We have not set out the pleas or answer of the respondent in full, but the substance of the same, and we are asked to say whether they are sufficient in law. That they are not, we do not for a moment hesitate to say.

(1.) As to the, first plea. The certificate therein set forth is in no respect according to the Act of Assembly. The act says that when the return judges shall have met, “ they cast up the several county returns, and make duplicate returns of all the votes given for such offices in said district (Senate, Congress or Assemblymen), and of the name of the person elected,” and dispose of the duplicates when so made out as already stated; and further, the act provides that “it shall be the duty of the return judges in every case to transmit to each of the persons elected to serve in Congress, in the Senate or House of Representatives, a certificate of his election within five days after the day of making up such return.”

- In the certificate referred to, there is no counting up of the returns and certificate of the person elected senator, nor any pretence of notice to him of his election. On the contrary, this was refused, because, the judges say, it “ appears that bribery and fraud” had b.een made use of to secure the election of the candidate having by the county returns a majority of votes in the district. So far from this being the certificate required by law, it was a refusal to certify. The returns were plain and intelligible, at least nothing to the contrary is alleged, and the only duty of the return judges was to cast them up and certify for whom the majority had been given. The county returns were, as to them in the performance of this duty, conclusive. They could not be disregarded in the least, excepting perhaps for plain clerical errors, and could not be set aside. They were to be the evidence upon which the return judges should alone act. The judges’ certificate and returns were to be the primá. facie commission of the senator, and by law it would stand until overruled by regular action of the Senate, in judging of the qualification, under the Constitution, of the member holding it. To hold that the certificate in question was a compliance with the law in this respect, would be to maintain the possibility of a senator being received under a commission certified to have been stained by bribery and fraud. This would be simply preposterous. I shall notice, further on, the groundless assumption that the return judges had jurisdiction of any such question as the existence of alleged fraud in the election. We overrule this answer or plea also.

(2.) As to irregularities, and the want of compliance with the law on part of the election officers of the township or district elections, and the alleged haste and want of care on part of the return judges of the county in convention, all this lies back of the returns, which we have just said were conclusive on the return judges of the district. From these returns their duty was to cast up and certify their return. This plainly-expressed duty clearly excluded the exercise of any other duty inconsistent with it. Hxpressio unius est exelusio alterius. We have never heard it contended that the authority given to the district return judges to perform their plain duty, carried with it a general supervisory power to look into all that preceded the county returns. There is no such thing in the law, and it would be a sad thing for our institutions if it were so. This plea or answer is untenable, and is overruled also.

(3.) In this plea the respondent alleges bribery and fraud in the election as an excuse for not -certifying as he was required by law to do. We hope this is not true. But even if it were, he was not the authority to examine into it or act upon it. Nor are we, upon whom the answer seeks to cast the responsibility of investigating it. This we have distinctly said in Hulseman v. Rems, 5 Wright 396, and if it had never been said, we would say it now. It is for the Senate to investigate charges of this nature. The Constitution expressly says so, and to that body it is proper, and the only place it is proper, legally to make such charges. If they prove true, that body will do its duty doubtless, and expel any member from its hall who is there by such means. The remedy for all this is by contesting the election of the party charged. The law is ample for this, and this is the constitutional mode of redressing and punishing such a wro.ng. The respondent could hardly have contemplated the consequences of the precedent he would set if sustained in this plea, or we think he would not claim it as a protection. There would be few returns of election of senators, congressmen or representatives ever made, if such a thing were possible to be maintained. There would always be enough, I regret to believe, to suggest fraud in the election, and thereby prevent any certificate of elections being given. The consequence of this would be that our legislative bodies would never organize. A few with certificates might keep all others out, and thus prevent any organization sufficient to try the right of those to whom certificates of election ought to have been given, but have been denied. Let this be the rule, and our representative system would utterly fail of its purpose, and anarchy and confusion would inevitably result. I must do the learned and able counsel for the respondent the justice to say, that they disclaimed all such power in the return judges of the district. They planted themselves alone on the ground that the respondent had already substantially complied with the Act of Assembly in the certificate signed by him. This we have shown, we think, was a mistake; but we need not recur to it again. This plea or answer is also overruled. Our unhesitating conclusion is that the respondent has presented nothing whatever to shield him from a peremptory mandamus, which it will be our duty to award in this case.

No question was made as to the power of this court to take jurisdiction of this case; that is settled by many decisions: 8 Casey 218; 10 Id. 496; 1 Wright 237-277; 3 P. F. Smith 9-71, and many other cases.

And now, to wit, November 16th 1871. This cause having been argued by counsel and considered by the court, it is ordered and adjudged that judgment be entered upon the demurrer for the Commonwealth, and that you the defendant, John Emminger, be and you are hereby peremptorily commanded forthwith, and jointly with Henderson G. Skiles, the return judge of Franklin county, to cast up and make out duplicate returns, according to law, of all the votes given for the office of senator in the senatorial district of this Commonwealth, No. 19, composed of the counties of Cumberland and Franklin, and of the name of the person elected senator in the same, as shown by the said county returns of the general election held as aforesaid on the second Tuesday of October last past, and transmit the same, as required by the eighty-second section of the Act of Assembly of the 2d of July, A. d. 1839, to wit, one of said returns to the secretary of the Commonwealth and to deposit one in the office of the prothonotary of the county of Cumberland, and make out and transmit to the person who shall appear by easting up said returns of said district to be elected senator at said election, a certificate notifying him of his said election; and that you the respondent pay the costs of suit.


author: Agnew, C. J. —

text:
    Greenough versus Fulton Coal Company et al.

    1. Fixing a rate of taxation is not charging unseated land with the tax, although the rate is essential to the charge.
    2. Property in the unseated list must be individuated before it can be the subject of a charge.
    3. The triennial assessment is the basis of subsequent annual assessments and the valuation will remain unless changed by alterations in the property ; —but it does not per se constitute the annual assessment.
    4. The charging of land with taxes is an annual process.
    5. The.commissioners have no right to reject the annual returns and make their charges on the triennial return.
    6. The question was whether land sold for taxes as unseated was seated when the tax was assessed; the commissioners’ unseated-land books did not show when the tax was assessed. Held, that the commissioners’ minutes were evidence when the assessment was made.
    January 27th 1874.
    Before Agnew, C. J.-, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northumberland county: Of September Term 1873, No. 6.
    This was an action of ejectment, brought December 22d 1868, by William I. Greenough against The Fulton Coal Company and others, for a tract of land, “ consisting of tracts and parts of tracts,” &c., containing 1674 acres or thereabouts.
    The premises in controversy were tracts and parts of tracts, surveyed on warrants in the names of Henry Antis, Thomas Adams, James Jenkins, Robert Adams, Frederick Antis and Thomas Foster. The whole number of the original tracts was twenty-five. In the year 1832 the owners of the twenty-five tracts instituted proceedings in'partition in the Court of Common Pleas of Northumberland county, in which Nos. 4, 8 and 10,marked “purpart B,” were allotted to Thomas Cadwallader, who, on the 5th of April 1837, conveyed No. 8 to John A. Lane, Samuel Parke and George Heckert. On the 24th of March 1853 the title to No. 8 vested in William L. Helfenstein, who conveyed three-fourths to David Longenecker and others, and on the 23d of October 1854 all the owners conveyed the whole tract to The Northumberland Improvement Company, whose name was changed by Act of Assembly, March 17th 1859, to The Fulton Coal Company, one of the defendants.
    The plaintiff claimed under a sale of the land for taxes as unseated, and deed made to him October 20th 1866 by John Farnsworth, treasurer of Northumberland county.
    The case was tried March 21st 1871, before Rockefeller, P. J.
    The plaintiff gave in evidence book “B” from the commissioners’ office, with the testimony of D. M. Swartz that it was the unseated-land book, in which the valuations and assessments of those lands were kept. The book commenced in 1852. The same witness testified that the triennial assessments wore in separate small books. Plaintiff gave in evidence unseated-land book “A,” from 1805 to 1813, both inclusive. Also unseated-land book from 1796 to 1804, marked “Transcript of unseated lands from deputy surveyor’s returns.”
    J. Farnsworth, who had been county treasurer and commissioners’ clerk since 1843, testified that “B” was the book from which the treasurer made out his list of sales for advertising. The valuations were regularly transcribed and continued from previous years, unless alterations were made by the commissioners on the application of the landowners.
    “ When these books were transcribed and the valuations brought forward by the clerk, it was done under the authority and by the sanction of the county commissioners. The commissioners fixed the rates, and I, as clerk, made out the taxes from the valuations as they appeared the year before. Before and while I was treasurer I knew but little about how it was done. I saw what had been done in the book. This book ‘ B ’ was in the commissioners’ office, and given to me to make the taxes from. It is the book of the commissioners. It is not a book of the treasurer.”
    In book “ B ” were these entries:—
    “ The following tracts of unseated land are situated in the several'townships set opposite the respective tracts, and in the proportions stated, as nearly as can be ascertained.”
    Under head of division, “B, No. 8.”
    Under warrantees’ name, “ whole or part” :—
    Antes Henry; Foster Thomas; Antis Frederick; Adams Thomas ; Jenkins J ames; Adams Robert.

      Under head of “ owners” :—
    Lane, Park and Heckert.
    Under head of “acres” — 1674.
    Adjoiners and townships:—
    John Brady, John White, D. Reese, W. Tomlinson; township of Coal.
    Then follow entries from 1852 to 1857, including both, of county, state, road and school taxes.
    Another page had the same heading, and other entries, with the addition of the valuation, $16,740 — and being for 1858, 1859.
    Another — same, for 1860, 1861.
    Another — same, for 1862, 1863.
    Another — same, for 1864, with the addition of' bounty tax.
    Then this entry: “ 1865. Marked on seated book for 1865, 4 Sold, June 11th 1866, to Wm. I. Greenough. Rec’d payment, J. Farnsworth, treasurer — $957.06.’ ”
    Farnsworth testified that he received the above purchase-money from the plaintiff for these tracts, sold to him by witness as treasurer.
    He further said : 441 always filled up the valuation column when I commenced. I commenced in the regular order and put down the warrantee names and then the owners’; next the acres; next adjoiners ; then the valuation column; then the taxes. There are two years’ taxes on each sheet or page; they represent one sale by each treasurer. I did not make these entries all at once. When I made the entries I did not make all in one year. Some of the local taxes I could not put down, as they were not given to me. I did not make the entries for the two years last past all in one year. * * *’ I did not get all in the book until a few months before the sale. I had some in before the 1st of last January; not three months before. * * * I always carried forward the previous valuations, unless otherwise directed by the county commissioners. * * * I know it was in my regular routine of business. In my experience the heading and the taxes columns would be carried out for the two years, the first. I always took the valuation from the valuation of the previous years, without any direct orders from the county commissioners to that effect. The object of keeping this book was to make up the record for the treasurer’s sale. When this book was once made out and finished, then the treasurer made up his sale-book from it. It is not the habit of the county for the county commissioners to receive taxes for unseated lands. A man having taxes to pay must go to the county treasurer. The treasurer would have nothing in his office to enable him to receive taxes, other than what he obtained from this book. Until this book was made up, there was no manner by which a man could pay his taxes on unseated land. * * * To make this book two things were necessary. 1. The valuation; and next, the rate of taxes. "We always had the rate of taxation established by the commissioners, and the valuation we took from the previous years without any special orders upon that subject by the commissioners. I do not know that the assessors of the county ever acted upon the valuation of unseated lands. I did at one time request them to return the unseated lands, and furnished them with lists. It was since 1867. They returned them in such condition that I could not use them. Before that time I do not know of any instance in which the assessor appraised or valued the unseated lands of the county. I know of one or two instances in which the taxes were entered in this book only a day or two before the sale. I know that some were entered so late that they could not be taken into the account, and had to be carried on to succeeding sale. * * * My impression is that each and every year, immediately after the assessments of the county taxes, the county taxes were carried out in this book. * * * After the rates of taxes were fixed, by the county commissioners, the treasurer could ascertain, by a matter of calculation, the county taxes. * * * The county tax was always ascertained after the rate was fixed. * * * I think that soon after the commissioners fixed the county rates, I carried the county taxes out in the columns. I cannot state any particular time that the - entries were made. When I was treasurer I frequently examined their books. I had no difficulty at any time in ascertaining the amount of county and state tax. This book was made up as a record to show all parties how much they had to pay on their tracts. Sometimes the road, poor, school and bounty taxes were in them. The bounty taxes of Coal township were not in time for the sale previous to the last, and were carried into the last sale. * * * When I said that the county taxes could be ascertained after the rates were fixed by the commissioners, I mean by taking the previous valuation.”
    The plaintiff then gave in evidence the following from the minute book of the commissioners:—
    “February 3d 1864. The board of commissioners agree to fix the rate of county tax at two mills on the dollar, the same as the year 1863.”
    “ 25th of March 1864. A full board of commissioners met and signed the assessment books, and attended to the other business of the office.”
    Also treasurer’s sale-book of 1866, containing treasurer’s sales by John Farnsworth, treasurer of Northumberland county.
    Coal township — 1674 acres.
    Henry Antis, James Jenkins, Frederick Antis, Thomas Adams, Robert' Adams, Thomas Foster.
    Under the head of treasurer’s-returns of purchasers: “ Wm. I. Greenough.”

      “Amount of taxes, $958.18: costs, $3.88; sold for $947.06; stamp, $1; money received by treasurer, $958.06.”
    Also treasurer’s deed to plaintiff for same tracts, dated October 20th 1866, and acknowledged November 16th.
    It was admitted that lot No. 8 is well marked on the ground and well known as a body of land since the partition; and that the writ of ejectment contains an accurate description of lot No. 8.
    Plaintiff then gave in evidence the treasurer’s-sales books, showing the statement of the land in 1854, the same quantity and warrantees’ names as before stated, and taxes paid by W. L. Ilelfenstein. Same in 1856, and taxes paid before sale by J. S. Dickson for Northumberland county. In 1858: “B, No. 8, 1674 acres;” same warrantees; “ sold for $1700, Hiram B. Tilden purchaser ; money received by the treasurer.”
    It was admitted that Tilden was a director and the agent of the Fulton Coal Company when he purchased the lands at treasurer’s sale.
    Plaintiff gave evidence of entries of these lands in 1860, 1862 and 1864 in the treasurer’s sales-book, similar as to quantity, 1674 acres, and warrantees’ names, and taxes paid in those years by the Eulton Coal Company.
    The plaintiff having closed, the defendants gave in evidence their paper title up to and including the deed from Helfenstein and others, October 23d 1854; and after further preliminary evidence, offered—
    “ Minutes of the proceedings óf the county commissioners of Northumberland county, contained in the same book given in evidence by the plaintiff, on the 20th of April 1864, which read as follows: ‘ The board of commissioners fix the rate of county tax at two mills on the dollar for the year 1864,’ ” for the purpose of showing the date at which the rate of county tax was fixed for the year 1864.
    Plaintiff objected because the same book of minutes shows that the rate was fixed by the commissioners at the same rate on the 3d day of February 1864, and had signed the assessment-books on the 25th of March 1864.
    Also, “ Minutes of county commissioners, contained in the same book, of the date of November 20th 1865 and November 30th 1865, and December 13th 1865; offered for the purple of showing the action of the county commissioners in fixing the valuation and taxes and the rates on the lands in controversy for the years 1864 and 1865, and also the time at which said action was taken.”
    Plaintiff objected, because the commissioners, in November *1865, had no power to change either the valuation or the rate of taxation of 1864, and also because the evidence offered shows that the commissioners discovered their mistake and revoked their determination to change the valuation before anything else had been done under it. Also, because the action of the commissioners of the 30th of November, A. D. 1865, proposes to fix the taxes, in' four of the townships or districts of the county, at double the rate of taxation of 1862 and 1863, leaving the other unseated land the same that it was in 1862 and 1863, and was therefore void, inasmuch as the law requires them to have the same rates in all the townships, and that the year 1862 having been a triennial year, the commissioners had no power to change the rate or valuation upon these lands for the year 1864 at any time.
    The court admitted both offers and sealed several bills of exceptions.
    The minutes were as follows :—
    “ November 20th 1865. Adjourned to meet on the 30th November, to fix the taxes on unseated lands of the county for the years 1864, 1865.

      “ November 30th 1865. A full board of the commissioners met to regulate the tax on the unseated lands of said county; they have fixed the tax or valuation for Mount Carmel, Coal, Shamokin borough and Zerbe at double what it was in 1862 and 1863, and all 'the other unseated land the same as it was in 1862 and 1863. This is the valuation for 1864 and 1865.

      “ December 13th 1865. A full board of the commissioners again altered the taxes on unseated lands, and unanimously agreed to let the rate of taxes on unseated land the same as it was in 1862 and 1863.”
    J. IT. Dewees testified that he made an' application to the Ftilton Coal Company for a lease of lands from them; he agreed verbally with them, about 4th or 5th of March 1864; he commenced work on the property March 8th 1864, and continued to work until March 30th, when he received a written lease. He contracted about the middle of March for work and materials for a breaker. He testified as to the erection of the breaker, the placing a portable mill, lumber, &c., on the ground, and other matters, for the purpose of showing that the land was seated, and when. He testified also as to the location of the land which he had leased.
    The lease was dated March 30th 1864, and was for twelve years from April 1st 1864.
    Defendants gave in evidence a lease of lands dated October 25th 1864, from them to Ira T. Clement, for twelve years from October 1st 1864.
    Clement testified that on the 16th of June 1864 he commenced putting up a house, and on the 2d of July a portable mill, and continued making other improvements.
    They gave in evidence a lease, dated November 28th 1864, from the Fulton Coal Company to Thomas Baumgardner, for fifteen years and five months, commencing August 1st 1864, for lands of the company. Baumgardner testified that he had a verbal lease in June or July previously, and commenced work about August 1st 1864.
    H. Yan Gaskin, who was superintendent of the Eulton Coal Company, testified that the works of Dewees, Clement and Baumgardner were on the lands in controversy; he also testified as to matters tending to show that the lands were seated in the spring and summer of 1864.
    There was other evidence to the same effect.
    The defendants gave in evidence also receipts for taxes paid by them for 1854, 1855, 1858, 1859, 1860, 1861, 1862 and 1863.
    The defendants rested.
    In rebuttal the plaintiff gave in evidence the triennial assessments from the organization of the county to 1862 inclusive, for the purpose of showing that the unseated lands in the county were not returned in the triennial-assessment book, but that these triennial assessments contain only assessments of seated lands.
    Judge Jordan, who had been the attorney of the county commissioners, testified that he was familiar “with the practice in the commissioners’ office; that unseated lands were valued and assessed by the commissioners, and the clerks carried out the amount to each tract; they were sometimes returned on the back of the triennial assessments, but there was no valuation. The commissioners set down the valuation of the tracts.
    Both parties here closed.
    The following are points of the plaintiff with their answers:—
    I. The valuation and assessment of taxes upon the land for which this suit is brought, made in 1862, ^s the triennial assess ment, with the entry of such valuation and assessment upon the unseated-land book by the commissioners of Northumberland county, and the fixing of the rate of taxation by the board of commissioners upon the 3d day of February 1864, constituted a complete and legal assessment of the county taxes upon this, land as unseated for the year 1864.
    Answer: “ This point assumes that there was a valuation and assessment of taxes made in 1862 as the triennial assessment. If there was a legal valuation and assessment by the proper authorities of taxes upon the land for which this suit is brought, made in 1862, as the triennial assessment, with the entry of such valuation and assessment upon the unseated-land book by the commissioners of Northumberland county, and the rate of taxation fixed by the board of commissioners upon the 3d day of February 1864, this would constitute a complete and legal assessment of the county taxes upon this land as unseated for the year 1864.”
    2. The valuation of the lands for which this suit is brought having been made and entered in 1862, the year of the triennial assessment, upon the unseated-land book of Northumberland county, given in .evidence by the plaintiff, the lien of the state taxes for the year 1864 attached to the lands in January 1864, and that the treasurer’s sale in June 1866, for the non-payment of the same, was valid and passed the title to the purchaser.
    Answer: “ If there was a legal valuation and assessment of the lands for which this suit was brought, by the proper authorities, and made and entered in 1862, the year of the triennial assessment,1 upon the unseated-land book of Northumberland county, given in evidence by the plaintiff as the triennial assessment, then I answer this point as requested.”
    4. Such assessment (that is, the assessment referred to in plaintiff’s, third point of the state, county, road, school, poor and bounty taxes for the year 1864, upon the unseated-land book) was sufficient to authorize the sale by the treasurer of Northumberland county, on the 11th of June 1866, of the property in dispute, for the non-payment of the taxes for 1864.
    . “ I answer this point as requested, and I instruct you that such sale passed a good title to the purchaser, provided you find from the evidence that such assessment was made before the land was seated, and was made and the taxes remained due and unpaid for the space of one year before the treasurer’s sale.”
    5. The resolution passed by the commissioners of Northumberland county, on the 30th of November 1865, was inoperative and could not change or affect the assessment of taxes upon the lands in controversy for the year 1864, which had become complete and effectual upon the 3d of February 1864.

      “ I answer this point as requested, except that I cannot charge you as a matter of law that there was an assessment of taxes upon the lands in controversy for the year 1864, which had become complete and effectual upon the 3d of February 1864. Whether there was or was not a tax actually assessed by' the proper authorities in the year 1864, and whether such assessment, if made, was made in 1864 or not until the land was seated, or not until November or December 1865, is to be determined by you under all the evidence in the cause.”
    The following were defendants’ points, with their answers: — ■
    3. To make a valid assessment of unseated lands, it is necessary that the assessor shall return the lands to the commissioners, who establish the i;ate of tax, and in this case, as no valuation of the lands is shown to have been made by competent authority, the sale by the treasurer in 1866 was void, and the plaintiff cannot recpver.
    “ L answer that to make a valid assessment of unseated lands, it is necessary that the assessor shall return the lands to the commissioners, who establish the rate of county tax, as stated in this point. The Act of 1842 makes the record of the county commissioners charging unseated lands with taxes evidence of an assessment, and, as I stated' in my general charge, it is unnecessary to show any action, valuation or return by the assessor, and. I cannot charge you that there is no valuation of the lands shown to have been made by competent authority, and that the sale by the treasurer in 1866 was void and that the plaintiff cannot recover.”
    6. The sale of 1866 for non-payment of the taxes of 1864 must depend upon the validity of the assessment for the year 1864, and no defects in such an assessment can be cured by reference to assessments of previous year; and therefore, as there is no designation or description of the lands in controversy as purpart 8, letter B, in the alleged assessment for 1864, such designation or description of assessments of previous years cannot be resorted to to affect the assessment of 1864.
    12. The seating of the lands in controversy by the entry upon them and occupation by Mr. John II. Dewees, is not to be confined to the limits of the territory within which he had a right to mine coal, but extends to the whole body of lands, irrespective of the restriction of his mining rights.
    13. As the county officials, for years prior to 1864, have treated the body of lands in controversy as one tract, it is, for all purposes of seating and taxation, to be considered as one tract, so far as the county and those claiming under it are concerned. The seating of any part of the tract is to be considered as the seating of the whole tract, and the plaintiff, claiming under the county, has no right to allege that the entry of Mr. Dewees and his subsequent work upon the land, was only a seating of that part of it within which ho had a right to mine coal.
    The defendants’ 6th, 12th and 13th points were affirmed.
    The court, after referring to the Act of April 13th 1815, amongst other things charged: * * *
    “ This act is remedial. The owners of unseated lands are bound to take notice of the statutes authorizing them to be sold for taxes. Before, however, they can be deprived of their property it must be shown that there was such a sale as the law directs and authorizes; and this involves an inquiry as to what constitutes a good and valid sale for taxes. I instruct you that the authority of the treasurer to sell unseated land for taxes depends on the facts — that the land was unseated at the time of the assessment; that a tax appears to have been and was, in fact, assessed upon it by the proper officers; and that the tax has been due for one whole year and remains unpaid. If all or either of these facts are absent the sale is invalid, and passes no title to the purchaser.
    “First, then, was a tax assessed upon the land in controversy by the proper officers, and, if so, when, and was the tax due for one whole year, and did it remain unpaid up to the time of the treasurer’s sales.” * * *
    The court then traced the title in the warrantees and through the proceedings in partition to the conveyance April 5th 1837 of purpart No. 8 by Cadwallader to Lane and others; and proceeded :—
    “ The plaintiff alleges that in 1852 the lands in controversy were well known by their designation as division or purpart ‘B, No. 8,’ and in that year, and during all the subsequent years, down to 1864, and including that year, they were placed upon the unseated-land books of Northumberland county, and assessed as one tract; that said lands are entered upon the said books, and, to designate them, the names of the' warrantees are used, the names of the owners, Lane, Parke and Heckert, the number of acres as being 1674, and the adjoiners as they are actually upon the ground, and in some years the ‘No. 8’ and letter ‘B.’ being the number and letter designating said purpart or share are used, and from this he contends that the lands so appearing upon the said books, kept in the county commissioners’ office, are the identical lands in controversy. [Whether the lands so appearing upon said books are the same, or the identical lands contained and described in said purpart or share marked ‘ B. No. 8’ or not, must be determined by you from the evidence in the case; the question of identity being for the jury.]
    “If these are the same lands, could they be thus assessed as one tract ? The Acts of Assembly relating to the assessment of unseated lands are plain, and require the assessor to assess and return the lands in his township in single tracts according to their ownership. Each tract must be assessed and returned separately, but, in my opinion, where there has been a division of a body of lands, and they are cut up and divided into several purparts or shares, consisting of parts of tracts comprising said body, and any one of said purparts or shares having been allotted as an entire or piece of the whole to any of the owners, such purpart or share, tract .or piece of land, although consisting of parts of several tracts surveyed in different warrantees’ names, may be properly assessed and returned as one tract, and especially would this be so if done with the knowledge and consent of the owner who pays the taxes upon it from year to year, knowing it to have been assessed in this way. [Then, if these lands were so entered in the commissioners’ books, was there, in fact, a tax assessed ? Have you any legal evidence of an assessment ? It has been held that the laws prescribe no mode of keeping assessment-books, or that.any shall be kept, except so far as it is involved in the direction that unseated lands ‘ shall be valued and assessed in the same manner as other property.’ * * *
    “ It is plain from the reading of all the sections of the act that the valuations are to be made and returned by the township assessors, and their returns, with their valuations and the rates fixed, constitute a legal assessment. In the present case there have been no returns of the assessors found in the office, and no evidence that there ever were any. The commissioners’ clerk who entered the lands, the valuations and assessments upon them in the year 1864, is dead, and there is no evidence showing where or how he got the valuations so as to charge the lands with the taxes, but the commissioners’ books, which are the records of the county, show that the lands there mentioned and described were charged with the taxes. The Act of Assembly of the 12th of April 1842, which is remedial in all its provisions (Purdon 901, pi. 8), declares that “ all records of the county commissioners charging lands as unseated, with arrears of taxes, shall be evidence of an assessment.” I am therefore of opinion, and so instruct you, that there is evidence in this case of an assessment upon the tracts of land mentioned and described on the commissioners’ books. These books are evidence of an assessment, under the Act of the 12th of'April 1851, without other evidence of action on the part of the township assessors.]
    “ Then if there is evidence of any assessment, when was it made ? This is a question to be determined by^you under all the evidence in the cause. The rate per cent, being fixed, and a valuation or assessment by the proper authorities constitute an assessment. The work of calculating and carrying out the amount or sums due on each tract is merely clerical and can be done at any time when any person wishes to pay the tax, and the time when the calculations were made and carried out on the books are not so material, the question is, when was the assessment made and the rate of tax fixed, and when made was the land unseated. If it was unseated at the time the assessment was made, then a subsequent occupation or seating of it will not affect the validity of the sale. The fact, whether the land was seated or unseated at the time the tax ivas assessed, is for the jury. As soon as a person enters upon an unseated tract of land, whether as an intruder or tenant, under a lease from the owner, and becomes a resident upon it, or without becoming a resident improves and occupies it in such a way as to furnish upon the land the means of making and levying the taxes by distress, it is considered in law as seated, and no longer liable to be assessed with taxes and sold for them if they remain unpaid. A tract ceases to be unseated as soon as it is actually occupied with a view to permanent use as the property of the occupant. If the jury believe from the evidence that the land in controversy was actually assessed and the rates fixed by the proper authorities as early as February 3d 1864, when the commissioners fixed the rate of county taxes at two mills on the dollar, and the land was then unseated, the sale on the — day of June 1866, by the county treasurer, being more than one year after the taxes were due and remained unpaid, passed a good title to the purchaser, but, if the jury find that the taxes were not assessed and the rates fixed by the county commissioners until after the lands had become seated, then the purchaser acquired no title by the tax sale. (The court here referred the jury to the testimony of John H. Dewees and other witnesses as to the times he and the other lessees of the defendants entered upon the land, and the nature and character of their occupancy and improvements.)
    [“ It is contended on the part of the defendants that if there ever was an assessment it was not made until after the lands were seated, and that the records of the county commissioners show that no tax was assessed which was due for one whole year and remained unpaid before the sale.” The court referred the jury to the several minutes of the proceedings of the county commissioners, given in evidence, and said, “from these and other evidence in the cause you are to find when the assessment was made and rates fixed. If the valuation of the lands was made by the county commissioners alone, and rates of taxes fixed in November or Decemcemher 1865, then the taxes would not have been due and unpaid for one whole year at the time of the treasurer’s sale in June 1866.”]
    [“ To constitute a legal assessment there should be a return by the township assessors of the taxable property, together with a just .valuation of the same, and, while I think that the Act of 12th April 1842, makes the records of the county commissioners charging taxes on unseated lands evidence of an assessment, yet these records are not always the assessment, but only evidence of an assessment, and, in the absence of proof to the contrary, they are conclusive evidence that an assessment was regularly and duly made. The maxim that ‘all acts are presumed to have been rightly and regularly done ’ applies with force to a treasurer’s sale, for where acts are of an official nature, or require the action or concurrence of official persons, a presumption arises in favor of their due' execution. The unseated-land book kept by the county commissioners, and that in which the valuations and assessments of the unseated lands in the county are kept, show a valuation and assessment of the lands in dispute for the year 1864, and the presumption is, until rebutted by competent and satisfactory evidence, that such assessment was duly and regularly made by the proper officers in that year. But whilst this is a presumption of law, and the Act of Assembly makes the records of the county’commissioners evidence of an assessment, I think I cannot take from the jury the right to determine, from all the evidence in the cause, whether a tax was in fact, assessed upon the land by the proper officers, one which was due for one whole year and remained unpaid at the time of the treasurer’s sale; and if you find that no such assessment was ever made as required by the Act of Assembly by the proper authorities; and that the valuation and rates were fixed by the county commissioners alone on the 18th of December 1865, then the sale by the treasurer in June 1866, for those taxes did not vest a good title to the land in controversy in the plaintiff, for if you believe the evidence, the land was then seated, and not one whole year had elapsed before the sale, and your verdict should be in favor of the defendants; but if you find, from all the evidence in the cause, that the land was unseated at the time of the assessment, that the tax for which the same was sold by the treasurer was, in fact, assessed upon it by the proper officers, and that such tax was due for one whole year and remained unpaid at the time of the treasurer’s sale, then your verdict should be in favor of the plaintiff.”]
    The verdict was for the defendants.
    The plaintiff took a writ of error and assigned for error
    1-4. .The answers to the plaintiff’s points.
    5-8. ,The answers to the defendants’ points.
    9-12. The parts of the charge in brackets.
    13, 14. Admitting in evidence the minutes of the county commissioners. '

      J. B. Packer and J. W. Qomly, for plaintiff in error.

      P. B. Gowen and Woodward (with whom was S. P. Wolverton), for defendants in error.
   The opinion of the court was delivered, February 9th 1874; by

Agnew, C. J. —

If we read together the entire charge in this case, including the answers to the points, we find it not contradictory or erroneous. In the main, it was a fair exposition of the law applicable to the facts. The statement that the valuations are to be made and returned by the township assessors, and that these returns, with their valuations and the rates affixed, constitute a legal assessment, was made in answer to a point, and repeated in the charge evidently in consequence of a contest upon the question, what constitutes a true assessment ? It cannot be expected that the court shall refrain from any expression of opinion upon subjects of contest before it, nor is it error when the court clearly puts the case to the jury on its true question. The following cases show that the court did not mistake the character of a regular assessment: Wells v. Smyth, 5 P. F. Smith 159, where the eases are collected; Lyman v. City of Philadelphia, 6 P. F. Smith 501; McReynolds v. Longenberger, 7 Id. 13. But the court did not charge that the plaintiff was bound to prove such an assessment in order to support a sale for taxes; and on the contrary, referring to the Act of 12th April 1842, making all the records of the county commissioners charging lands as unseated with arrears of taxes evidence of assessment, the judge expressly instructed the jury that there was evidence of an assessment upon the tracts of land mentioned and described in the commissioners’ books, and that those books ‘were evidence of an assessment, by virtue of the act, without other evidence of action on the part of township assessors. The same instruction is conveyed in answer to the third and fourth points, and is repeated and enlarged upon in the last part of the charge. It is in vain to contend that the jury must have been constrained by the definition of a regular assessment to consider it as binding on them in their finding. They were clearly and often informed that under the Act of 1842, the commissioners’ book containing the charges against this body of lands, and for which they were sold, was sufficient to support the sale. The judge took fairly the distinction, arising upon the Act of 1842, which is taken by our brother Sharswood in the case of Hess v. Herrington, 23 P. F. Smith 438, holding that when such evidence exists, the irregularity in the actual assessment, if any, is aided by the fourth section of the Act of 13th March 1815, 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 declared to be good and legal.” There was but one particular in which the judge deemed the book deficient, and this he properly submitted to the jury, to wit: the time when the assessment in the commissioners’ book was made. There was no evidence whatever on the face of the book of the precise time of making the assessment, or of making the entry in the book, and none appeared in the minutes of the commissioners. The fact was, therefore, necessarily submitted to the jury on the evidence, and with the distinct instruction of the court, that presumptively the assessment was made in the year 1864, a presumption most favorable to the plaintiff; otherwise the evidence itself left the jury pretty much at sea, without star or compass.

The plaintiff contends that this entry in the minutes of February 3d 1864, — “ the board of commissioners agree to fix the rate of county tax at two mills on the dollar, the same as 1863,” determines the time of the assessment. But this entry does not stand alone, and is followed by subsequent entries on the minutes, tending to show that the assessment was not complete on the 3d of February 1864, and that the sum stated was only the intended rate for all county taxes, on seated as w’ell as unseated lands. The entry on the minutes, March 25th 1864, that a full board of commissioners met and signed the assessment-books, shows that the general assessment was not then complete. “ Books” here is in the plufal, and evidently refers to the assessment-books for the several townships, commonly called duplicates, which is strengthened by the entry on the 20th of April following, that “ the board of commissioners fix the rate of county tax at two mills on the dollar for the year 1864.” This minute of the final fixing of the rate wears a final aspect not belonging to the minute of 3d February preceding, which looks more like a prospective intent. It' seems to be very evident that the general assessment of county tax for all purposes was not complete until at least the 20th of April 1864, while as to the unseated lands there is strong evidence of incompleteness even then. This uncertainty of time makes it evident that the subsequent minutes of November 20th 1865, November 30th 1865, and December 13th 1865, were not irrelevant. Taking them in connection with the mode of keeping the commissioners’ book by biennial periods, it looks very much as if the commissioners of Northumberland county were very irregular in their mode of dealing with the unseated lands, and as if they thought it quite sufficient to have the unseated-land list completed in time for the treasurer to advertise the list for sale every second year. Undoubtedly they had no authority thus to link together the years 1864 and 1865, and to change the rate for 1864, after they had duly assessed the unseated lands for that year; but such being their irregular action, we cannot say that the court erred in receiving these minutes as evidence upon the question of fact, when they actually completed the assessment for 1864. It cannot be truly said that these entries on the minutes throw no light on the question of fact, and therefore, we cannot pronounce them so irrelevant as to make their admission erroneous. The time of the actual and final assessment was important to the defendants’ case, for, if the land was seated, as the evidence tends to show, early in March 1864, before final assessment, or if the assessment was, in point of fact, not made until within a year before the time of sale, the treasurer’s sale conveyed no title.

' The argument is fallacious that the rate of February 3d 1864, assuming it to be the fixed determination of the rate, is to be referred to the preceding triennial assessment in 1862, and thus to constitute a complete assessment in 1864. Fixing a rate is not charging the land with a tax, though the rate is essential to the charge. The property to be taxed in the unseated list must be ascertained and individuated before it can become the subject of a charge. While the triennial assessment is the basis of the subsequent annual assessment, and the valuation then fixed will remain, unless changed by reason of alterations in the property, it does not per se constitute the annual assessment of the property Avith taxes. The charging of lands Avith taxes is an annual process, for the reason that neither the property itself, nor its ownership, necessarily continues for triennial periods. The commissioners Avould have no right to reject the annual returns, and falling back upon the last triennial return, make their charges upon it. The six tracts, the subject of the return in 1862, in one body, might have been disconnected by sales, or changed by improvements; part might, under different owners, become seated and not subject to sale, leaving others unseated and liable to be charged as unseated. Of necessity, the charging of the lands as unseated for any year, must be the act of that year, having relation to individual properties as then existing, and cannot be made good by reference to the state of the property in the preceding triennial period. It is true in this ease, the property remained without change, but this did not affect the duty of the commissioners to charge it specially with the taxes of 1864. We are, therefore, brought back to the commissioners’ book and the assessment of 1864 contained in it, as the only evidence of the assessment for that year, and as there was nothing in it to exhibit the time of the assessment, there must -be a resort to indépendont or outside facts to determine the true time. This brought in, necessarily, all the acts of the commissioners found in the minutes of their proceedings relating to the unseated lands, which could throw any light on the main question, when did they complete their assessment of unseated lands for the year 1864.

These are the only questions we 'deem it necessary to notice, as their decision rules the case. The verdict of the jury on the facts is not the subject of our inquiry.

Judgment affirmed.