author: Chief Justice Agnew

text:
    Brown versus The Commonwealth.
    1. An indictment was found in the Quarter Sessions, but entitled as in the Oyer and Terminer, where it was tried. Held, that the caption might be amended after trial, conviction, sentence and writ of error, but before the record had been returned.
    2. The indictment was not certified into the Oyer and Terminer, Held that after trial, conviction, sentence and writ of error, it might be certified nunc pro tunc into the Oyer and Terminer.

      3. Where a lower court has power of amendment and exercises it properly the Supreme Court will not inquire into the state of the record before the return of the writ of error, but will look only at its condition when returned.
    4. On a question of prisoner’s insanity the court charged “ if he had power of mind enough to be conscious of what he was doing at the time, then he was responsible to the law for that act.” Held, not error. t
    5. Ortwein v. Commonwealth, 26 P. P. Smith 414, followed.
    March 12th 1875.
    Before Agnew, C. J., Sharswood, Mercer, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Oyer and Terminer of Bradford county: Of January Term 1875, No. 132.
    Albert Brown was indicted at the September Term 1874, of the Court of Quarter Sessions of Bradford county, for the murder of Cora Greenleaf. The indictment contained two counts: one, in the ordinary form, for the murder of the deceased, and the other, for her murder in perpetrating a rape upon her.
    The caption of the indictment entitled it in the Court of Oyer and Terminer. The venire for the grand jury, issued out of the Quarter Sessions; the indictment was not certified into the Court of Oyer and Terminer before the trial. The records of all the proceedings on the trial, were contained in the Quarter Sessions docket.
    The cause was tried before Morrow, P. J., and his associates, in the Oyer and Terminer. The evidence was that the prisoner had ravished the deceased, and afterwards cut her throat. The defence was that the prisoner was insane, and evidence was given in support of it.
    On the defence of insanity, the court charged: * * *
    “ Now with regard to the law upon that subject, we shall not undertake to enter upon a discussion of this subject in general, but lay down to you only such few rules as we think will enable you to determine the question raised by this defence. 1st. The law presumes every man to be sane; that is the presumption of law. It also presumes that every man possesses a sufficient degree of reason to be responsible for his crimes, and that presumption continues until the contrary be proven. To establish a defence upon the ground of insanity it must be clearly proved that at the time of the committing the act, the prisoner was laboring under such a defect of reason as not to know the nature and quality of the act he was doing; or if he did it, that he did not know he was doing what was wrong. This is the general rule, but we will more particularly say that ‘ when the reason is dethroned, when a man has not power to distinguish right from wrong, or lacks power to adhere to the right and abstain from the wrong, he is not accountable to criminal law.’ Or if the prisoner was actuated by an irresistable inclination to kill, ‘had murder in his heart,’ and was utterly unable to control his will or subjugate his intellect, and was not actuated by a wicked purpose, or intent to indulge in this depraved propensity to have sexual connection with the deceased, was not actuated by anger or revenge or kindred passions, he is entitled to be acquitted; provided the jury believe that the state of mind, now referred to, has been proven to have existed by satisfactory evidence, at least by preponderating evidence.
    “ The presumption of law is that he is sane; that he is responsible for any act he may do. The burden then is upon him to show that he was not responsible, by reason of inability to commit crime, and in connection with this, we cannot say, as a test, that because a man is of w'eak mind, that therefore he is excused from the commission of crime; such is not the law. If he has sufficient strength of mind to form a purpose and intent, to know and distinguish between right and wrong, to know the act is wrong, and power to abstain from it, if he had that power, although his mind was as weak as testified to by Dr. Shultz, and was not compelled, as it were, by some power outside of himself to commit the act, then he is responsible.
    “It makes no difference whether the evidence indicating insanity is brought out by the testimony on the part, of the Commonwealth, or proved directly on the part of the prisoner; but one thing is certain: it must be proved in some way, or at least the weight of evidence that such is the fact must preponderate. * * * The prisoner must here set up positive, actual proof of the existence of insanity upon his part, of an irresistible power controlling him. * * * Now, under all the evidence in the case with regard to the cause of this crime, the time and manner when it was committed, and everything as shown by the evidence, does all this establish the fact that this man had not power to control himself? Is it satisfactory and preponderating evidence to establish the fact that at the time he committed this act, it was not his act but the act of some power controlling him, an irresistible power ? If so, then you should acquit him. It would be monstrous to convict a man of any crime he is not capable of committing, and who does not know right from wrong, and has no moral sense or convictions about it. But, on the other hand, if this evidence does not preponderate and satisfy you that at the time he committed this act he was insane and unable himself to do it, it is clearly your duty to convict him of such crime as in your judgment, under the law, he has committed. The presumption of law is that every person charged with a crime is innocent until he is proven guilty. In this case, the prisoner admits the fact that he committed the crime, and the only question, therefore, for the jury to determine is, was the prisoner capable of committing a crime ? Did he know the act was wrong ? Did he know the nature and character of it ? Was he conscious of what he did at the time? If he was, although he is a person of weak mind, although he is addicted to bad vices-, although he is afflicted with disease, [yet if he had the power of mind enough to be conscious of what he was doing at the time, then he is responsible to the law for that act.”] * * *
    December 11th, the jury found the prisoner guilty of murder in the first degree. After overruling a motion in arrest of judgment, the court on the 16th of December' 1874, pronounced sentence of death on him. On the 22d of December, the clerk of the Court of Oyer and Terminer transmitted an exemplification of the^ record to the governor. On the 25th of January 1875, a writ of error was filed and its service accepted by the district attorney. On the 10th of February 1875, the Court of Quarter Sessions granted leave to the district attorney to amend the caption of the indictment nunc pro tunc as of September 8th 1874, by striking out “ Oyer and Terminer” and inserting “ Quarter Sessions,” and also to amend the record by striking out all that part of the record made subsequently to return of the bill a “ true bill,” as having been erroneously made by.the clerk by transcribing it into the record of the Quarter Sessions. On the same day, the court directed that the case be certified, nunc pro tunc as of September 8th 1874, from the Quarter Sessions into the Oyer and Terminer; on the same day, the case was certified according to the order into the Oyer and Terminer; and the Court of Oyer and Terminer ordered that the indictment as certified from the Quarter Sessions, be filed nunc pro tunc as of September 8th 1874, in the Court of Oyer , and Terminer; it was accordingly filed as of that day.
    There was a large number of specifications of error. Those considered by the Supreme Court related to the amendments of the record and to the portions of the charge on the question of the burden of proof of insanity. ■ ■

      S. W. Patrick (with whom was J. P. Sanderson), for plaintiff in error:
    as to the finding of the indictment in the Quarter Sessions, cited Act of March 81st 1860, sect. 82, Pamph. L. 437 ; 1 Br. Purd. 382, pl. 35. As to trying in Oyer and Terminer an indictment found in the Quarter Sessions and not certified to the Oyer and Terminer, sect. 21, pl. 34. As to the charge of the court on the question of insanity, they cited State v. Bartlett, 43 N. H. 228; Hopps v. People, 31 Ill. 385; Chase v. People, 40 Id. 224; Polk v. People, 19 Ind. 170; Stevens v. State, 31 Id. 485 ; People v. Garbat, 17 Mich. 9; People v. M’Cann, 16 New York 58; Smith v. Commonwealth, 1 Duvall 224; Ochletree v. Hale, 28 Id. 693.

      II. N. Williams (with whom was J. B. Reeve, District Attorney), for Commonwealth, defendant in error.
    The caption is no part of the indictment: Whart. Crim. Law, sects. 219, 220; 4 Comyn’s Dig. 672, note (h); Pennsylvania v. Bell, Addison 156; Comm’th v. Bechtell, 1 Amer. L. J. 414. Amendments will be made when justice requires. Steffy v. Carpenter, 1 Wright 41. Records made in a wrong case may be transferred to the proper case: Sweeney v. Delany, 1 Barr 320. A fact not on the record which ought to appear, can be put on nunc pro tunc: Breden v. Gilliland, 17 P. F. Smith 34. There is no difference as to amendments between penal and other actions: Griffith v. Eshleman, 4 Watts 55; Megargell v. Hazleton Coal Co., 8 W. & S. 347. The court may amend after the term: Rhoads v. Comm’th, 3 Harris 276; Bailey v. Musgrave, 2 S. & R. 219; and after error brought: Ordroneaux v. Prady, 6 S. & R. 511; Murray v. Cooper, Id. 126; De Haas v. Bunn, 2 Barr 335; Sheppard’s Case, 27 P. F. Smith 295; Dougherty v. Comm’th, 19 Id. 286. As to proof of insanity: Comm’th v. Mosler, 4 Barr 264; Ortwein v. Commonwealth, 26 P. F. Smith 414. Every unlawful killing is presumed to be murder, and the burden is upon the prisoner to rebut the presumption, whether the defence be insanity or anything else: O’ Mara v. Comm’th, 25 P. F. Smith 424; Commonwealth v. Dunn, 8 Id. 9; Pennsylvania v. Bell, Addison 156.
   Chief Justice Agnew

delivered the opinion the court, May 10th 1875.

This case has been presented with much ability by the counsel of the prisoner, who have spared no labor or pains in performing their whole duty to a client whom they were appointed to defend, without hope of reward, other than that which attends a consciousness of duty well performed. The prisoner, miserable in severable senses, has been convicted, on a full and fair trial, of a most revolting crime; yet, owing to the mixed system of criminal proceedings in this state, and the want of skill, or of care, in the double office filled by a single clerk, we are perplexed with errors of procedure which under a single system of criminal jurisdiction, and more skill in the office, would not occur. We are relieved partially in the consideration of the assignments of error, by the full and complete record of the trial in the Oyer and Terminer, made out probably under the superintendence of the presiding judge. The rule of this court being to confine itself strictly to the record proper, and to affirm, if no error affecting the rights or-interests of the prisoner appear therein, we are saved from considering the formal errors assigned, excepting two; Cathcart v. Commonwealth, 1 Wright 108; Girts v. Commonwealth, 10 Harris 351.

The first is as to the amendment of the caption of the indictment which was entitled as in the Oyer and Terminer, but was amended after trial, conviction and sentence, so as to be entitled, as in the Court of Quarter Sessions. It would be a shame if this were not amendable, and we think there was sufficient before the court to amend by. No venire for grand jurors had issued out of the Court of Oyer and Terminer, and the indictment was, in fact, found in the Court of Quarter Sessions, from which the venire had ■issued, so that the mistake in the caption was obvious, and its amendment affected no real interest or right of the prisoner. The Court of Quarter Sessions having jurisdiction to find the indictment and send it into the Court of Oyer and Terminer for trial, the error in the caption was purely technical, and the amendment did the prisoner no harm.

The next assignment of error is more formidable, yet we think it fell within the power of amendment. The indictment found in the Quarter Sessions had not been formally certified into the Court of Oyer and Terminer at the time of trial. Afterwards, under a mine pro tune order, it was regularly certified in due form into the Court of Oyer and Terminer, and so appears on the record of that court. We think, under the authority of Dougherty v. The Commonwealth, 19 P. F. Smith 293,-the amendment mine pro tune was properly allowed. The prisoner was tried before judges having jurisdiction of his crime, by a jury duly selected and empannelled, on an indictment found by a grand jury having power to inquire of the offence, in a court having jurisdiction of the inquiry ; and the indictment being, in fact, sent into and in possession of the Oyer and Terminer, and sufficient and regular in charging the offence. Both courts are held by the same judges, and a single clerk fills the office of clerk in each. Why, then, should it be deemed a stretch of power to make the amendment, even after error brought ? Every substantial right of the prisoner was observed, and nothing but the formality of the certificate was wanting. The lodging of a writ of error is no test in such a case, but it is the power of the court, and the propriety of making the amendment. Where the court has the power, and exercises it properly, this court will not inquire into the state of the record before the return of the writ, but will look only at its condition, when returned in obedience to the writ. If, then, it appears to be regular, its previous condition will be disregarded. Our province is not to look for errors merely to reverse, but to look for merits in the cause of reversal; and when we find the court below has done no more than it could rightly do, and when what it did infringes no right or substantial interest of the prisoner, we ought not to send back for a re-trial a cause fully, fairly and justly determined. We think this assignment of error, when examined, is found to be without substantial merit. The day of mere technicality is past, and courts should look more at substantial justice than artificial nicety ; Commonwealth v. Keenan, 17 P. F. Smith 206; Girts v. Commonwealth, 10 Harris 351.

All the errors assigned to the charge relate to the burden of proof of insanity, the judge holding that the crime being admitted, the burthen lay upon the prisoner to establish his defence of insanity, or his want of moral power to resist the impulse to commit the crime, by satisfactory, or, at least, by preponderating evidence. The case of Ortwein v. The Commonwealth, 26 P. F. Smith 414, decided in January last by this court, was not known to the counsel at the time of trial. That case decides the question, and we shall only refer to it.

One error upon the defence of insanity is assigned to the following language of the court: If he (the prisoner) had power of mind enough to be conscious of what he was doing at the time, then he was responsible to the law for that act.” It is contended this language was incorrect, and was liable to mislead the jury, because the prisoner might be conscious of what act he was doing, and yet, in consequence of mental disability or disease, be incapable of refraining from its commission. But the charge has a plain English meaning, referring to the nature of the act, and when taken in connection with other parts of the charge, this portion is not susceptible of misconstruction. All the judge said referred plainly, not to the mere act, but to the prisoner’s consciousness of what he did as a crime. The phrase, conscious of what he was doing,” is idiomatic, and is understood to mean the real nature and true character of the act as 'a crime, and not to the mere act itself. As used by the judge in connection with what else he said, it was not contradictory or misleading. A memorable instance of this idiomatic use of the word what is found in the language of our Saviour on the cross, when he said, Father, forgive them; for they know not what they do !” Clearly,. the Jews knew well that they were crucifying Jesus, but their darkened minds were unconscious of the great crime they were committing.

We find no substantial error in the record for which the sentence of the court should be reversed. The judgment and sentence of the Court of Oyer and Terminer are therefore affirmed, and it is ordered that the record be remitted to the said court for execution of the sentence according to law.


source: Caselaw Access Project

license: Public Domain

text:
    Brown et al. versus Day et al.

    1. Surveys adjoining under warrants to S. Harvey and M. Harvey wero in Northampton county in 1792; in 1798 Wayne county was cut off from Northampton, leaving, as was supposed, the S. Harvey in Wayne. It, others, was sold to feellogg, by the sheriff of Wayne county, for taxes in 1806, and conveyed by one deed; the tracts were actually in Northampton. Kellogg, in 180f, sold the two tracts to Stoddart. In 1814 Tyson convoyed them to James, reciting a deed from Stoddart of 1808 to him, endorsed on the deed from Kellogg. James built a saw-mill on the M. Harvey, on which houses also were built, and timber for the mill was cut from the tracts, which were afterwards conveyed as one tract and vested in plaintiff in 1859. The M. Harvey had been continually occupied till the trial. The S. Harvey was taxed as unseated. There had been no claim or payment of taxes by S. Harvey or any one under him; but Tyson and those under him paid such taxes as had been paid. Held, that plaintiffs had such color of title as authorized them to pay the taxes.
    2. The continued possession of the M. Harvey and its joint ownership and use with the S. Harvey, raised the presumption that all the taxes had been paid under that title.
    3. That the S. Harvey was assessed as unseated and the M. Harvey as seated, did not dissever the joint ownership so as forbid the claimant to pay taxes on the S. Harvey.
    4. After a valid sale for taxes, it requires a clearer right to redeem, than to pay in self protection before sale.
    5. The plaintiffs and their predecessors having claimed the land, paid taxes, &c., for so long a time, without an adverse claimant, a presumption of title was established.
    6. Although plaintiff’s title might not be maintained against the owner of the land; under the circumstances in this case, they could recover against an intruder.
    7. By payment of taxes the plaintiffs were performing a’public duty ; the true owner’s title would be saved from sale, and no injury be done to any one ; as a subsequent purchaser from the treasurer had no rights to be protected.
    8. Evidence of the loss of a paper, sufficient in this case to admit parol evidence of its contents.
    9. Carter v. Tinicum Fishing Co., 27 P. F. Smith 310; Hastings v. Wagner, 7 W. •& S. 215 ; Taylor & Dougherty, 1 W. & S. 324, followed.
    March 15th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Monroe county: Of July Term 1874, No.’ 1.
    This was an action of ejectment, brought December 2d 1870, by Israel Day, Samuel Saylor, Thomas C. Davis, and William Mc-Murtrie against John Brown, John Stoddart, and John R. Crellin, for a tract of land in Tobyhanna township, Monroe county, formerly part of Northampton, in the warrantee name of Samuel Harvey, containing 413f- acres, bounded by lands in the warrantee names of Mary Harvey and others.
    The case was tried January 1st 1874, before Streeter, P. J., of the Thirty-fourth district.

      The plaintiff’s evidence showed: warrant to Samuel ITarvey, dated September 17th 1792, for 400 acres of land on Trout creek, near the river Lehigh, in Northampton county, and survey on the warrant November 19th for 413f acres.
    Wayne county was cut off from Northampton county in 1798.
    The tax books of Wayne county show that this tract was taxed in that county as unseated every year from 1799 to 1805 inclusive. Plaintiffs then gave in evidence, under objection and exception, a deed dated February 11th 1806, from Abraham Mulford, sheriff of Wayne county, to Silas Kellogg. The deed recited a warrant from the commissioners of that county, commanding him to sell for taxes such unseated lands as he should be directed by the commissioners; in pursuance of the warrant, he sold and conveyed to Silas Kellogg two tracts, surveyed to Samuel Harvey, one situated “between Trout creek and the Lehigh,” containing 400 acres 150 perches; the other, situated “ on Trout creek,” containing 413 acres 113 perches; one tract surveyed to Mary Harvey, situated “ on Trout creek,” containing 403 acres 60 perches, and a number of other tracts designated in the deed.
    ■ They gave in evidence, a deed dated January 13th 1806, from Silas Kellogg to John Stoddart, for two tracts on Trout creek, one in the warrantee name of Mary Harvey, for 403 acres 36 perches; the other, in the name of Samuel Harvey, for 413 acres 113 perches, being two of the tracts conveyed by Mulford to Kellogg : Also, deed dated October 23d 1813, from Jonathan Tyson to James Tyson for the undivided half of five tracts, viz.: Mary Harvey, 403 acres 60 perches, Samuel Harvey, 413 acres 113 perches, and three others designated in the deed; also, deed dated October 18th 1814, from Joseph Tyson to James Tyson, for the undivided half of two tracts, one in the name of Mary Harvey, for 403 acres 60 perches, the other in the name of Samuel Harvey, for 413 acres 113 perches; this deed contained a recital that Silas Kellogg sold the same to John Stoddart, and that John Stoddart, by deed poll endorsed on the deed from Kellogg, conveyed the same to Joseph Tyson and Jonathan Tyson on the 24th of May 1808.
    A witness for plaintiff testified, that Joseph Tyson had claimed or owned the Samuel Harvey tract in Tobyhanna township, and, also, the Mary Harvey tract, which adjoined it, — sixty years before; he built a saw-mill on the Mary Harvey tract; the line'of the Samuel Harvey was about 100 yards from the mill; Trout creek ran through the Mary Harvey; the Samuel Harvey came up to the bank of the creek; the Mary Harvey was partly in Tobyhanna and partly in Ooolbaugh township. James Tyson came there twenty years after the first mill was built, and built a new saw-miill, and as soon as he finished the mill, sold to George Craig ; he was there two years, and lumbered on the land.
    Amos Moore came after him and lumbered several years; he died whilst in possession; Day and Saylor next claimed the possession; about six or seven years before the trial Brown and Stoddart claimed possession. The dam on the Mary Harvey backed the water on the Samuel Harvey; several houses were built on the Mary ITarvey; there was lumbering done on the tracts by Day and Saylor.
    Another witness testified that Davis and McMurtrie came after Day .and Saylor; there was a house built when the second mill was built, and it had been occupied down to the time of trial. In 1866 the two tracts were assessed to Day and Saylor; the Samuel Harvey as unseated and the Mary Harvey as seated.
    The plaintiffs gave evidence from the tax books that the taxes on the Samuel Harvey, assessed as unseated in Tobyhanna, were paid in 1856-1857 by Amos Moore. They then gave in evidence: deed, June 3d 1847, James Tyson to George Craig, for the Mary Harvey, 403 acres 60 perches; the Samuel Harvey, 413f acres; the George Solliday, 34 acres, described together as one tract, containing 850 acres 25 perches. Deed, January 13th 1851, Craig to Amos Moore, for same property, described as one tract. Will of Moore, proved September 23d 1858, devising one half the property to Stephen B. Moore', and directing the other half to be sold by his executors. Deed, April 5th 1859, Stephen Moore to Day and Saylor, for an undivided half of “said 850 acress 25 perches;” same day, deed from executors of Amos Moore to Day and Saylor, for the other undivided half of “said 850 acres and 25 perches;” deed, March 2d 1868, Day and Saylor to Thomas C. Davis and William McMurtrie, for an undivided half of “ said 850 acres 25 perches.”
    The defendants gave in evidence: assessment of the Samuel Harvey, 413f acres, as unseated in Tobyhanna township, for the years 1858 and 1859, and treasurer’s sale and conveyance of the tract for taxes, on the 2d of June 1860, to S. J. Hollinshead; payment of taxes by Hollinshead for the years from 1860 to 1865, inclusive, and by Brown and Stoddart from 1866 to 1869, inclusive. Also, deed, December 30th 1865, from the widow and heirs of Hollinshead to Brown and Stoddart, for the several tracts of land, including the Samuel Harvey. Patent, May 5th 1870, to Brown and Stoddart, for the Samuel Harvey in Tobyhanna township ; also, connected draft of nine tracts in Tobyhanna and Coolbaugh townships, one being Samuel Harvey, 413f acres, in Tobyhanna, and another, Samuel Harvey, 400 acres 115 perches, in Coolbaugh.
    They further gave evidence for the purpose of showing that the Samuel Harvey was unseated; also, from the tax books, that the assessments from 1850 to 1861 in Tobyhanna township, in the names of Craig, Moore and Day and Saylor, were of seated land; there were no assessments to either of them of unseated land.

      In rebuttal the plaintiffs called James H. Stroud, who testified that he had received a letter from Day and Saylor in 1860 ; that he searched for it in all places where it was likely it would be found, and that he had been unable to find it; the search was two or three years after he got it; he had looked through his papers twice since; the last a short time before the trial, at W. Rees’s office, in which he had kept his papers for the last six or seven years, and to which his papers had been removed from the bank, where he had before kept them; he had not searched at the bank for the letter since he had left it; two or three years after he received the letter he searched for it at the bank; he found the receipt, but did not find the letter; his letters were in bundles, endorsed; he took the bundles apart and looked for the letter, but did not open each letter; he kept his papers in a drawer in the bank vault; also private papers in the pigeon holes; the search was in the drawer, but none in the pigeon holes; he left the letters in the pigeon holes when he left the bank ; at Rees’s office he looked inside of every letter separately; the letters in the pigeon holes were to himself as cashier; did not keep his private letters in them.
    After the adjournment of the court, the witness testified that since the adjournment he had searched in the pigeon holes; he inquired at the bank and learned that the letters had been destroyed; the cashier said the letters prior to 1866 had been put into the cellar, and afterwards had been sold to a man who bought paper and rags.
    The plaintiffs then offered to give evidence of the contents of the letter; the defendants objected, on the ground that there was not sufficient evidence of its loss; the court admitted the offer, and sealed a bill of exceptions.
    The witness testified that the letter -was from Day and Saylor; it contained money to pay taxes, with a list of the tracts on which they were to be paid; he left the list with the treasurer, and told him he wanted to pay the taxes on Day and Saylor’s land; the next day he paid the taxes and took a receipt; this was before the treasurer’s sale in 1860; he had no.recollections of the contents of the letter, except in a general way to pay their taxes; he had no recollection of the contents of the list except that it contained the warrantee names; there was one Samuel Harvey on the list; there were two Samuel Harvey tracts, one of which Day and Saylor did not own. When Day got the receipt he found it was for the one which he did not own; this was after the treasurer’s sale, and after the day of redemption.
    Saylor, one of plaintiffs, testified that, in 1860, he wrote to Stroud to pay their taxes in Monroe county, giving the names, amongst others, “ our Trout creek lands, bought from the Moore family, giving the names of Daniel Ross, Mary Harvey and Samuel Harvey, to pay taxes on the same tract Moore paid on.” He did not own the Samuel Harvey tract in Ooolbaugh township.
    They then gave in evidence the treasurer’s unseated land-book of Monroe county, showing the payment of the taxes for 1858-
    1859 by Day and Saylor, on the Mary Harvey in Tobyhanna; and for the same, years on the Samuel Harvey in Ooolbaugh.
    The defendants gave evidence, by the treasurer of 1860 and by his books, that the taxes of the tracts which Saylor had testified were contained in his letter, except Samuel Harvey in Tobyhanna, were paid by Day and Saylor, and that at the same time the tax on the Samuel Harvey, in Ooolbaugh, had been paid by them, but that the tax on that in Tobyhanna had not been paid. They gave in evidence a copy of the receipt given June 9th 1860, the time of payment. It contained a list of the same tracts, including the Samuel Harvey of Ooolbaugh, but not of Tobyhanna.
    The first point of the plaintiff was affirmed; it was:—
    “ The plaintiffs have shown sufficient title upon which to recover the land in dispute against the defendants, unless the tax sale of
    1860 legally passed the title to S. J. Hollinshead.”
    The second point was :—
    “ If the jury believe the taxes were actually paid by J. H. Stroud for Day and Saylor upon their unseated lands situate in Monroe county, in the month of June 1860, and, through mistake of the treasurer, the portion directed to be paid upon the Samuel Harvey tract owned by them was not credited to said tract, the sale for unpaid taxes to Mr. Hollinshead was void, and the plaintiffs are entitled to recover the land in dispute.”
    The court said:—
    “ We answer this point in the affirmative, unless the jury believe that Day and Saylor by their negligence in some degree occasioned the mistake.”
    The following were points of the defendants, with the answers:—
    “ The limitation of five years, fixed by the third section of the Act of 3d April 1804, is a bar to the recovery of the plaintiffs in this action.”
    Answer : “ This point is denied.”
    5. “ If the Samuel Harvey tract in Tobyhanna township was never in Wayne county, no title to it passed by the sheriff’s sale for the non-payment of taxes in that county.”
    “ This point is true as an abstract proposition, but has no application to this case.”
    The court charged :—
    “ The tax sale of 1806 in Wayne county, given in evidence by the plaintiff, was invalid so far as relates to the land in dispute in this case. The Samuel Harvey located in Tobyhanna township, was not located in Wayne county, and Silas Kellogg, the purchaser, took no title to this tract. [That tax sale is a matter of no importance in this case.] On the 3d of June 1847 [James Tyson being in possession of several tracts, including the Samuel Harvey, conveyed them in a body to George Craig], This conveyance embraced 850 acres and 25 perches, and included the Samuel Harvey, the Mary Harvey and the George Solliday tracts. [Craig lumbered on these lands some three years, according to the evidence of Andrew Escheubach, and then by deed dated 13th January 1851, conveyed the same property to Amos Moore. Moore lumbered upon it several years and paid taxes upon it, and died in possession.] The title of Moore was vested in these plaintiffs by deed of the 5th of April 1859. [This recital of facts shows that the plaintiffs were in possession by color of title, and they may recover against an intruder without title.]
    “ Are the defendants intruders, or are they in possession by virtue of a title? This question can only be considered by determining the validity of the tax sale of 1860 to Stroud J. Hollinshead.
    “ The tract was unseated, and, if the taxes had not been paid, that sale passed a good title to Stroud J. Hollinshead, who conveyed to these defendants. Day and Saylor attempted to pay these taxes. They sent funds to James H. Stroud, and directed him to pay their taxes. He paid the money to the county treasurer, but the taxes upon the Samuel Harvey in Tobyhanna township were not marked as paid. The evidence shows that the money of Day and Saylor was applied to the payment of the taxes upon the Samuel Harvey in Coolbaugh township, a tract which the plaintiffs did not claim to own. [The money seems to have been credited to the wrong tract. Whose mistake was it? Did the negligence of Day and Saylor contribute, in the least degree, to this mistake ?] If it did, the sale was good, and Hollinshead took a perfect title, which is now vested in these defendants. But if Day and Saylor paid the full taxes, and they were credited to the wrong tract by the mistake of the treasurer alone, and the fault was exclusively his, then the payment was a good one, and the subsequent sale for taxes was void. * * * By whose negligence were the taxes applied to the wrong tract ? If there was any negligence on the part of Day and Saylor, then this tax sale was good, though the treasurer may also have been guilty of gross negligence. Did the list given to the treasurer by Stroud indicate clearly and plainly the tracts upon which the money was to be paid, so that no mistake could be made without gross inattention on the part of the treasurer ? If it did, and the mistake was exclusively the fault of the treasurer, the payment was a good one, and the tax sale void. [The case turns upon the question of fact, which is entirely for the jury. I repeat that if Day and Saylor, by the manner in which they prepared their instructions, contributed in the least degree to the mistake which seems to have been made in crediting the taxes, they are not entitied to recover, but if the fault was wholly and entirely that of the treasurer, the plaintiffs are entitled to recover.”]
    The verdict was for the plaintiffs.
    The defendants sued out a writ of error; they assigned for error:—
    1. The admission of Sheriff Mulford’s deed in evidence.
    2. Admitting parol evidence of the contents of the letter of Day and Saylor to Stroud.
    3. Affirming plaintiff’s first point.
    4. 5. The answers to defendants’ second and fifth points.
    6-11. The parts of the charge in brackets.

      H. Green and W. Davis for plaintiffs in error.
    As to the sufficiency of the search for the letter of Day and Saylor: 1 Greenl. Ev., sect. 558; 4 Phillips Ev. (n. 246 to p. 230) 441; U. States v. Doebler, Baldwin R. 519; Sweigart v. Lowmarter, 14 S. & R. 200; McConahy v. Turnpike Co., 1 Penna. R. 426; Parkins v. Cobbett, 1 Carr. & P. 282; Judson v. Eslard, 1 Alab. 71; Parker v. Wilson, 1 Harr. 461. As to the plaintiffs’ title by possession, they cited Warner v. Henby, 12 Wright 187; Hoffman v. Bell, 11 P. F. Smith 444; Wheeler v. Winn, 3 Id. 131; Orr v. Cunningham, 4 W. & S. 294; Coxe v. Sartwell, 9 Harris 480; Miller v. Shaw, 7 S. & R. 142; Carlisle v. Stitler, 1 Penna. R. 6; Adams v. Robinson, 6 Barr 271; Hole v. Rittenhouse, 1 Casey 493; Young v. Herdic, 5 P. F. Smith 176. Mere payment of taxes by one having no title will not give such actual possession as to oust the holder of the legal title: Naglee v. Albright, 4 Whart. 291; Urket v. Coryell, 5 W. & S. 83; Sorber v. Willing, 10 Watts 142. Color of title is applicable only to the tract actually occupied, not to contiguous tracts: Baker v. Findley, 8 Harris 168; Hole v. Rittenhouse, 7 Id. 305; Wright v. Guier, 9 Watts 172. The legal title cannot be ousted by mere constructive possession : Hawk v. Senseman, 6 S. & R. 21; McArthur v. Kitchen, 27 P. F. Smith 62.

      5. Holmes and H W. Palmer, for defendants in error.
    An absent deed in a chain of conveyance, may be supplied by a long-continued claim of title, with acts of ownership uncontested by adverse pretensions from him who is supposed to have conveyed : Hastings v. Wagner, 7 W. & S. 215; Warner v. Henby, 12 Wright 187; Fox v. Thompson, 7 Casey 172. The warrantee name is of itself no evidence that the title belonged to the person named in the warrant: Glass v. Gilbert, 8 P. F. Smith 287 ; Strimpfler v. Roberts, 6 Harris 283. Against a naked intruder upon wild land a conveyance will be presumed from a warrantee who has not been heard of for a long time, to one who has been taxed, and the taxes paid by him and those claiming under him : Taylor v. Dougherty, 1 W. & S. 324; Kite v. Brown, 5 Barr 291; Hoey v. Furman, 1 Id. 295; Bell v. Hartley, 4 W. & S. 32; McCall v. Coover, 4 Id. 151. When several contiguous surveys become vested in one owner, they are to be treated as one tract; so that an entry upon any part under color of title is a disseisin of the whole: Hole v. Rittenhouse, 1 Casey 499; Nearhoff v. Addleman, 7 Id. 279. Naked possession is a good title against one putting occupant out of possession and showing no better title: Woods v. Lane, 2 S. & R. 53; Turner v. Reynolds, 11 Harris 199 ; Shumway v. Phillips, 10 Id. 151; McCalmont v. Venango C. & O. Co., 22 P. F. Smith 221. Although Amos Moore had been there by mere color of title, yet, having died in possession, those coming in under him had a better title than he by reason of the descent cast: Green v. Kellum, 11 Harris 259. The evidence of the loss of the letter was sufficient: Spalding v. Bank of Susquehanna, 9 Barr 28; Lee v. Lee, Id. 172; Flinn v. McGonigle, 9 W. & S. 75; Whitesell v. Crane, 8 Id. 369.
   Chief Justice Agnew

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

The argument in this case took a wide range, involving questions of abandonment, seisin, possession, casual entries, and other matters often important in determining questions of title. But the true attitude of this casé presents only a single principal question, to wit: Whether the two plaintiffs, Israel Day and Samuel Saylor, had, in the year 1860, such claim or color of title to the Samuel Harvey tract as enabled them rightfully to pay the taxes. ■ If they had, then the taxes being paid, and accepted .,by the treasurer in fact, and the misapplication of the money to the wrong tract being wholly his fault, as found by the jury, he had no right or authority to sell the land; the tax' sale to S. J. Hollinshead, after payment of the taxes, was void, and the plaintiffs were entitled to recover: Bubb v. Tompkins, 11 Wright 359; Price v. Mott, 2 P. F. Smith 315.

Then, had these plaintiffs such claim or color of title as authorized them to pay the taxes on the tract warranted in the name of Samuel Harvey ? Had they such a title as the law would enable them to pi’otect by payment. This must be determined by the facts in evidence. A warrant was issued in the name of Samuel Harvey, on the 17th September 1792, for four hundred acres of land on Trout creek, near the Lehigh, in Northampton county, upon which a survey was made on the 19th of November 1792, of four hundred and thirteen and three-quarter acres and allowance, the same land now in controversy. Wayne county was cut off from Northampton in the year 1798, by a line from the Delaware river to the mouth of Trout creek, on the Lehigh, running by this tract, and leaving it, as it was supposed, until recently, in Wayne county. It is found that a small portion only, probably ten or twelve acres, lie in Wayne county. In the year 1806 this Samuel Harvey tract and the Mary Harvey tract adjoining it on the northwest, another Samuel Harvey tract, and seven other tracts in the same vicinity, were sold as unseated lands for taxes by the sheriff of Wayne county, and conveyed together in one deed to Silas Kellogg. In 1807, Silas Kellogg conveyed two of these tracts (the Mary Harvey and the Samuel Harvey, the one in controversy) to John Stoddart. By deed dated in 1814, Joseph Tyson conveyed to James Tyson the undivided half of these two tracts, reciting a deed poll from John Stoddart, dated 24th May 1808, endorsed on the deed to Silas Kellogg for the same two tracts to Joseph and Jonathan Tyson. Jonathan Tyson also conveyed his undivided half to James Tyson in the year 1813. Before Jonathan had parted with his title he had built a saw-mill on the Mary Harvey tract, within a few perches of the northwestern boundary'of the Samuel Harvey tract. James Tyson built another saw-mill on the site of the old one, a few years prior to his sale to George Craig, and several houses also, which were occupied from time to time by tenants. The testimony tends to show that the boundary line between the Mary and Samuel Harvey tracts had not been marked on the ground. The pool of the saw-mill dam extended beyond this boundary into the Samuel Harvey tract, and the evidence shows that timber for the mill was cut on both tracts. In 1847, James Tyson conveyed to George/ Craig the two tracts, Mary and Samuel Harvey, and a third small parcel, surveyed in the name of George Solliday, containing thirty-four acres, all together, and described as one tract of eight hundred and fifty acres and twenty-five perches, and allowance. In 1851, George Craig conveyed the same property described as one tract to Amos Moore. In 1858, Amos Moore devised one-half of his property in Monroe county to .Stephen B. Moore, and the other half to be sold by his executors. In 1859, Stephen B. Moore conveyed his undivided half of eight hundred and fifty acres and twenty-five perches to Israel L. Day and Samuel Saylor, and on the same day the executors of Amos Moore conveyed the other undivided half of the same property to Day and Saylor. Thus it appears that these two tracts, Mary and Samuel Harvey, passed together into a single ownership so early as the year 1814, and have so continued until the time of the treasurer’s sale in 1860 to S. J. Hollinshead. From 1847 they were not only held together as a single ownership, but were with the small tract of thirty-four acres conveyed together as a single tract of eight hundred and fifty acres and twenty-five perches. The mill and houses on the Mary Harvey tract have been occupied under the several owners down to the time of trial, and timber cut on both tracts. No claim has been made' by Samuel Harvey, the warrantee, or taxes paid by Mm or any one under bim or Ms title. He is wholly unknown, except as his name appears in the warrant. So.far as taxes are shown to be paid by any one, it has been under the name of James Tyson and his successors, while the continued possession of the Mary Harvey warrant and joint ownership and use of it with the Samuel Harvey warrant, raise the presumption that all the taxes have been paid under that title. Here then was a boná fide claim of title under a sale supposed to be valid of the two tracts warranted in the names of Mary Harvey and Samuel Harvey, without molestation or interference of any one for a period of fifty-six years, and a joint ownership of the tracts as one, and control of both together as one body of land, conveying them together, and using them together by actual possession and improvement of one, and by backing up the water, and cutting timber upon the other. If such a claim of right cannot be protected from divestiture, by payment of taxes to prevent a sale, it is difficult to conceive of any interest in land but an absolute title, which can be so protected by payment. Had the division of Northampton county in 1798 thrown the Samuel Harvey tract entirely into Wayne county, as for many years it was believed to be, there would be no doubt of the right. Then the limitation of five years in the Act of 1804 would have confirmed the sheriff’s deed. Clearly it was color of title, and would give effect even to the general statute of limitations in case of actual possession, such as there was of the Mary Harvey warrant. How then can the mistake of locality in 1806 so derogate from the title to the Samuel Harvey warrant, as to prevent payment of the taxes upon it by the only known owner of it in 1860 ? Will a party claiming both tracts together as a whole, under a long line of conveyances, treating the ownership as one, and exercising control over both, be, by this mistake, when discovered after a lapse of years, stripped of his power to protect himself from a sale for taxes ? The effect of such unity of title to several distinct tracts (fifteen in that case) was strongly stated by Chief Justice Lewis, in the memorable case of Hole v. Rittenhouse, 1 Casey 491, in explaining the decision in Kite v. Brown, 5 Barr 291. This effect was perhaps too strongly stated in reference to its influence upon the Statute of Limitations, as was said by Thompson, J., in Warner v. Henby, 12 Wright 187 ; but the principle of this unity'of title and claim makes it clear that the owner may so treat his property. Thus, it was held in Burkholder v. Sigler, 7 W. & S. 154, that when an owner of a tract purchased a small parcel of adjoining land for the use of his mill, a levy and sheriff’s sale carried both, though without any description of the small parcel. It is common practice to levy and sell as one a farm composed of several parcels, but used as a whole, even where one of the parcels consists of woodland only.

The fact that the Samuel Harvey tract was assessed as unseated, while the Mary Harvey was seated, does not dissever the joint ownership, or forbid the claimant to pay the taxes on the unseated tract. Assessment is the act of the law. The second section of the Act of 1804 required the deputy surveyors to return to the county commissioners all the lands in their districts, “ which return shall include a list of the number of acres contained in each survey or warrant, and of the names and surnames of the original warrantees, the waters on which the same is situate, the lands contiguous thereto, and the township, if known, wherein the same may lie.” This was a matter of public policy to obtain all the lands liable to taxation, unseated lands at that time being generally wild, and embraced in large unsettled districts in which even the townships were often unknown. This act was followed by that of 1806, requiring the owners of lands to furnish a list to the commissioners “of each and every tract” of unseated land held by them, with the name of the warrantee, under a penalty of a fourfold tax to be assessed on “ every trace ” not returned. This is the very view taken by the late Chief Justice Thompson, in Heft v. Gephart, 15 P. F. Smith 516-17. The law of assessment, therefore, does not change the right of the owner or claimant to pay the taxes according to his ownership. The question here is, had the plaintiffs a right to pay the taxes of the Samuel Harvey tract, not how they should be assessed ?

Bearing on this question are some of the decisions as to the right of redemption. Thus, in Shearer v. Woodburn, 10 Barr 511, a purchaser from one who had purchased at sheriff’s sale the claim of one who had exercised acts of ownership over land, and been the reputed owner for years, was deemed to have such title as entitled him to redeem. Redemption presupposes a valid sale for unpaid taxes, and requires a clearer right to redeem after such a sale than to pay taxes before the sale, in self protection.

There is another class of cases bearing on this right to protect such a claim of title, to wit, those establishing a presumption of title arising from great lapse of time. In this case there had been no claim by the warrantee, or any one under him, for a period of over eighty years at the time of trial, and no adverse claim or interruption of the title by sheriff’s sale in 1806, for fifty-four years, at the time of the sale for taxes. In Taylor v. Dougherty, 1 W. & S. 326, a case of one claiming a warranted tract against an intruder without title, Chief Justice Gibson said : “ The land was warranted and surveyed in 1773, in the name of Henry Kepple, of whom nothing has since been heard during a period of near seventy years, while they, under whose title the plaintiffs claimed, exercised the only ownership over the warrant, of which, as a title to wild land, it was susceptible. They paid the only taxes for it that ever have been assessed upon'it, and this from 1805 till the trial of the cause (1840). Surely, if the beneficial ownership had been in Kepple, he or his representatives would have claimed it long before. The presumption from time alone of an intermediate conveyance from him as a trustee, would be sufficient to go to a jury as primá facie evidence of the fact.” Hastings v. Wagner, 7 W. & S. 215, is a still stronger case, for there the land had been patented, and a deed from the third grantee, followed by a lapse of thirty years, was presumed in favor of those claiming title under it, while the actual possession of the land was in one claiming by settlement and residence. In that case, C. J. Gibson remarks, “ that to raise a presumption of a conveyance the question of possession is between not these two (to wit, the claimant and the settlor), but the presumptive grantor and the presumptive grantee.” The' doctrine of presumption is laid down quite as strongly by C. J. Black, in Strimpfler v. Roberts, 6 Harris 283. But it is unnecessary to enlarge, as this subject has so recently undergone investigation in the case of Carter v. The Tinicum Fishing Company, 27 P. F. Smith 310. In the present case there has been not only a continuous claim of title from 1806 to 1860, when these taxes were paid; but, also, the only possession of these two tracts ever known to be had of them.

Another class of cases gives strength to the position of Day and Saylor as claimants under color of title, viz., those holding that even a treasurer’s deed before the Act of 1815, or one which may not be maintained against the owner of the land, will enable the holder of the tax deed to recover against an intruder: Foster v. McDivit, 9 Watts 344, 345. Now, clearly, a title such as would enable the possessor of it to recover against an intruder would be sufficient to enable the same party to pay the taxes on the land he can thus recover. In doing this he is performing a public duty and injuring no one, for the true owner is benefited by his act, and his title saved from a sale, while the subsequent purchaser from the treasurer had not then come into existence, and had then no rights to be affected. As the owner of even a defeasible title he ought to be permitted to protect himself by payment, for the true owner may never come, or may be barred by lapse of time, and the title may never be defeated. Thus we have in the case before us a holding of the title for fifty-four years, repeated sales and conveyances of the two tracts as one, a joint holding of both under the same title, actual possession of one longer than to give title by limitation, and the use of the other by means of backwater and cutting timber, a dying seised and devise of both as one body of land, and subsequent conveyances in continuation of this unity, and payment of taxes as they were demanded, without any adverse claim of title whatever. Clearly such a claim of ownership entitled Day and Saylor to pay the taxes in 1860, and thus avert a sale.

In regard to the only other question, that as to the sufficiency of the search for the letter to James H. Stroud, it seems to us, when,all the witness testified to in his several examinations, for he was recalled twice, and made re-examination after the adjournment of the court, is considered, there was ample evidence of search to admit the contents of the letter ; especially in view of the time which had elapsed, the removal of papers, destruction of those that remained in the bank, and the want of knowledge as to where the letter had really been deposited. It would consume unnecessary time and space to enter into a labored examination of the evidence.

Judgment affirmed.


author: Mr. Justice Williams

text:
    Freyman versus Knecht.
    1. The defendant sold plaintiff a horse, warranting it sound, the eyes being then sore; evidence of the condition of the eyes a year afterwards was admissible for the purpose of showing that the disease was not temporary but permanent.
    2. Evidence of the condition of the eyes a year after the. sale was not admissible per se to show that they were diseased at the time of he sale; it should not have been received without evidence to'show what was their condition during the intermediate time.
    3. The plaintiff alleging that the warranty had been broken, returned the horse, the defendant refused to receive it, and it was sold as a stray for about the price plaintiff paid. Held, that evidence of these facts was admissible.
    4. The horse or its value was the property of the plaintiff, and the defendant might show the price for which it was sold as a stray, as evidence of the value at the sale to the plaintiff.
    5. If the defendant was guilty of fraud in the sale and warranty of the horse, the plaintiff might rescind, and on returning or offering to return it, recover back the price paid in case for deceit, or in assumpsit or case for the fraudulent warrant
    6. If there were no the plaintiff could not rescind the contract for
    breach of warranty and return the horse without defendant’s consent.
    7. He might sue either in case or assumpsit for breach of warranty, and the measure of damages would be, not the consideration but the difference between the actual value and the value if sound, with interest from the sale.
    8. Where there is a warranty and no fraud or agreement to return, the vendee cannot rescind the contract after it has been executed; his only remedy is on the warranty.
    9. Kase v. John, 10 Watts 107 ; Vanleér v. Earle, 2 Casey 277, followed.
    March 15th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lehigh county: No. 158, to January Term 1875.
    This was an action on the case, commenced December 26th 1872, by Stephen Knecht against John Freyman.
    The declaration was that Freyman, in consideration of $125 ■ and a wagon worth $25, bargained and sold to Knecht a horse and warranted it sound, whereas at the time of the sale it was unsound, and Freyman thereby “falsely and fraudulently deceived” Knecht, to his damage, &c.
    The case was tried December 4th 1874, before W. S. Kirkpatrick, P. J., of the Third district.
    The plaintiff’s evidence was that on the 13th of November 1872, and after some previous interviews on the subject, he bought a mare of the defendant, for $125 in money and a wagon valued at $25. Previously, and at the time of the sale, the defendant said he “would warrant the mare all over.” In examining the mare before purchasing, the plaintiff asked the defendant what was the matter with one of her eyes; the defendant said it must have happened by running a corn-stalk into the eye; after the conversation about the eye, the defendant was asked by plaintiff if he would warrant the mare ; defendant again said, he “ would warrant her all over.” On the 25th of November 1872 the plaintiff discovered that both eyes were affected. He took the mare to the defendant’s house and left her there; defendant was from home, and plaintiff told his wife that he had returned her.
    The plaintiff then proposed to ask a witness : “What was the condition of her eyes in November 1873, to be followed by proof that the disease was ophthalmia, moving from one eye to another; that said disease is incurable and progressive, and that she after-wards became totally blind.”
    This was objected to, because the condition of the eye in November 1873, was incompetent to show its condition in November 1872, the alleged time of the sale. The question was allowed, and a bill of exceptions sealed.
    The answer of the witness was, that one eye was blind and the other in a bad condition.
    After the mare was returned, she was sold as a stray, the plaintiff having had notice of the sale. There was much evidence that the eyes of the mare were defective; and that some time before the trial she had become entirely blind.
    For the defendant, there was evidence that when asked whether he would warrant the mare, he said, “I warrant just while in my stable, and when she is out I don’t.” There was other evidence that the warranty was as above stated and not as alleged in plaintiff’s evidence.
    The defendant then offered to prove that the constable sold the mare as a stray, after due public notice and notice to the plaintiff; that the defendant refused to receive the mare when returned ; that at the sale, a few days afterwards, the mare was worth and sold for $150 — this on the question of the measure of damages.
    The offer was objected to by the plaintiff, rejected by the court, and a bill of exceptions sealed.
    The defendant’s fourth point, which was denied, was:—
    “ Plaintiff alleging a warranty and having declared thereon, and there being no evidence of an acceptance by defendant of the horse brought back by plaintiff in defendant’s absence, and defendant having refused to receive the horse, and having disposed of her as a stray, the horse, or the value thereof, is to be considered as the property of plaintiff.”
    The court also charged that if the warranty was, that the horse was sound at the time of the sale, and at that time the horse was actually unsound, the plaintiff was entitled to recover.
    The verdict was for the plaintiff for $168.25.
    The defendant took out a writ of error, and assigned for error the rulings on the offers of evidence and the denial of his point.

      JE. Hoiben (with whom was IS. Albright), for plaintiff in error.—
    A vendee of a chattel, where the sale is with a warranty of soundness, and the vendor does not consent to take it back, cannot rescind and recover back the whole consideration : M’Farland v. Newman, 9 Watts 57; Kase v. John, 10 Id. 107; Thornton v. Wynn, 12 Wheaton 183. Where there is no fraud or agreement to return, vendee cannot rescind, but his action is on the warranty: Sedgwick on Measure of Damages 319; Story on Contracts 939; West v. Culling, 19 Verm. 536 ; Street v. Blay, 2 B. & Ad. 463; Jordan v. Norton, 4 M. & W. 160; 1 Sm. Lead. Cases, Part I., 335.

      JE. Gr. Swartz and J. D. Stiles for defendant in error.
    The testimony as to soundness, of those who saw the horse about the time of the sale, is admissible: Kuntzman v. Weaver, 8 Harris 422 ; Fielder v. Starken, 1 H. Blackstone 17 ; Ross on Vendors 178. In a sale of a chattel with warranty, the warranty is a distinct contract; in case of breach, if there was subsequent consent to return, or fraud, and where the vendor knew of the unsoundness, the vendor may return the article and recover back the price. The action on the warranty may be in case or assumpsit: Vanleer v. Earle, 2 Casey 277; Pittsburg Coal Co. v. Foster, 9 P. F. Smith 365. There must be an offer by the buyer to return the chattel before he brings suit: Caswell v. Corse, 2 Campbell 82; Kase v. John, 10 Watts 107.
   Mr. Justice Williams

delivered the opinion of the court, October 18th 1875.

It was clearly competent for the plaintiff to prove that, when he purchased the mare in November 1872, her eyes were diseased; and in order to show that the disease was not temporary but permanent and incurable, that it continued until November 1873, when one of her eyes became wholly blind and the sight of the other was greatly impaired. But evidence as to the condition of her eyes in November 1873, was not admissible per se for the purpose of showing that they were diseased at the time of the sale; and it should not have been received if there was no evidence tending to show what their condition was during 'the ten months immediately preceding that date. If the defendant was guilty of fraud in the sale and warranty of the mare the plaintiff had the right to rescind the contract, and upon returning or offering to return her, to recover back the price paid in an action on the case for deceit, or in an action of assumpsit or case for the fraudulent warranty: 1 Chit. PI. 137. But if there was no fraud or deceit in the sale, the plaintiff had no right to rescind the contract for the alleged breach of warranty, and to return the mare without the defendant’s consent: Kase v. John, 10 Watts 107; Sedgwick on Damages 286-7. It is true that he might sue either in assumpsit or case for the breach of the warranty: Vanleer v. Earle, 2 Casey 277; but the measure of his damages would be — not the consideration or price paid, but the difference between the actual value of the mare, and her value, if sound, with interest from the date of the sale. Where there is no fraud or agreement to return, the vendee cannot rescind the contract after it has been executed, but his only remedy is an action on the warranty. In this case it is not alleged that the defendant was guilty of any fraud or deceit in the sale and warranty of the mare, nor is there any evidence that he knew or had any reason to believe,that her eyes' were permanently and incurably diseased at the time of the sale. The p>laintiiF, therefore, had no right'to return the mare, and the defendant was not bound to take her back and refund the price. It follows that there was error in overruling the defendant’s offer to show that he refused to accept the mare when she was returned by the plaintiff, and that soon afterwards she was sold as a stray for about the same price the plaintiff paid for her ; and for not charging, as requested in defendant’s fourth point, that the horse, or the value thereof, is to be considered as the property of the plaintiff. The defendant had the right to show the price for which the mare was sold, as a stray, by the constable, as .evidence of her value at the time of the sale to the plaintiff; and he was entitled to the instruction prayed for, in order to limit the plaintiff’s recovery to the difference between the actual value of the mare, and her value, if sound, as warranted, with interest thereon from the date of her sale. The other assignments of error are not sustained, but for the reasons given, the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Person’s Appeal.
    1. In a prothonotary’s office there were a pigeon hole kept and a desk for the exclusive use of the sheriff, and he kept a key of the office. When writs were issued by the prothonotary they were placed in the pigeon hole and taken from it by the sheriff. An execution, No. 2, was issued and put into the pigeon hole with the knowledge of the sheriff at the time; afterwards, No. 3, against same defendant, was issued and delivered to the sheriff, 'at his residence; he endorsed the time of delivery, 12.30 p. it. He afterwards took No. 2 from the pigeon hole and endorsed the time, 4 p. m. Held, putting the writ in the pigeon hole was not a delivery, and No. 3 had priority.
    2. If there be no endorsement on the writ the time of delivery may be proved by parol, but when the sheriff endorses the time it is conclusive.
    3. Hale’s Appeal, 8 Wright 438 ; Mifflin v. Will, 2 Yeates 177, followed.
    March 16th 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson, and Woodward, JJ.
    Appeal from the Court of Common Pleas of Qarbon county: No. 122 of July Term 1874. In the distribution of the proceeds of the sheriff’s sale of the personal property of Peter Laux.
    By the report of the auditor, E. B. Siewers, Esq., appointed to make distribution of the above-mentioned proceeds, it appeared as follows:—
    On the 19th of January 1874, G. B. Linderman & Co. issued a pluries fi. fa., No. 2, to March Term 1874, against Laux, for debt, $7500; on this writ the sheriff endorsed “ Came to my hands, January 19th 1874, at 4 p. M.” On the same day, F. H. Person issued a fi. fa., No. 3, to the same term, against Laux, for debt, $327.42 ; on this writ the sheriff endorsed, “ Came to my hands, January 19th 1874, at 12.30 p. M.”
    The auditor heard parol testimony, which showed that for nine years two pigeon holes or boxes had been set apart in the prothonotary’s office for the shei’iff’s writs; in one of them the writs are placed by the prothonotary as soon as they are issued; in the other the sheriff placed the writs after he had executed them. There was, also, a desk in the prothonotary’s office for the exclusive use of the sheriff; he kept a key of the office and had free access to the pigeon holes where the writs were placed. The sheriff was in the prothonotary’s office when writ No. 2 was issued, and 'then knew of its being issued; after leaving the office and going to his dinner, No. 3 was placed in his hands at his residence and he there endorsed the time of its receipt. He returned to the prothonotary’s office about four o’clock, got No. 3 from his pigeon hole, and then endorsed the time of its receipt.
    The auditor decided, under these facts, that the prothonotary’s office was the sheriff’s usual place of business, that placing No. 2 in the sheriff’s pigeon hole was a proper delivery to him; and as that had been done before No. 3 was put into the sheriff’s hands, No. 2 was entitled to priority in the distribution of the fund, notwithstanding the endorsements on the writs showed that No. 3 came first to his hands. He accordingly awarded the whole fund, $562.40, after deducting costs and expenses, to No. 2.
    After exceptions by Person, the court, Dreher, P. J., confirmed his report and decreed the whole fund to G. B. Linderman & Co.
    Person appealed to the Supreme Court and assigned this decree for error.

      F. J. Fox (with whom was W. M. Bapsher), for appellant.—
    Executions are to be paid in the order of their actual delivery to the sheriff: Act of June 16th 1836, sect. 39, Pamph. L. 768, 1 Br. Purd. 643, pl. 44; Ulrich v. Dreyer, 2 Watts 303. The time of delivery must be shown by endorsing the day and hour on the writ: Act of 3836, sect. 40, pl. 45; Shafner v. Gilmore, 3 W. & S. 488; Hale’s Appeal, 8 Wright 438.

      A. Qraig for appellee.
    Leaving an execution at the usual place of the sheriff’s business is equivalent to a delivery: Mifflin v. Will, 2 Yeates 177; Metzler v. Kilgore, 3 Penna. Rep. 247; Hale’s Appeal, supra.

   Mr. Justice Gordon

delivered the opinion of the court, March 29th 1875.

The controversy, in this case, arises out of the distribution of moneys made by a sheriff’s sale of the property of Peter Laux, on two executions against him, dated January 19th 1874. The one, a-pluries fi. fa., No. 2, of March Term, was issued on a judgment of G. B. Linderman & Co., and the other, a fi. fa., No. 3, of the same term, upon a judgment of F. H. Person, the appellant. The execution first issued, Linderman & Co.’s, was endorsed by the sheriff as coming to his hands at 4 p. M., of the 19th of January, and the other, Person’s, as coming to his hands at 12.30 P. M., of the same day. To this first-named writ, the auditor, to whom was committed distribution of the money raised by the sale, awarded the fund, though it appeared by the endorsement thereon, to have reached the hands of the sheriff subsequently to that of the appellant. This award was induced by the consideration of certain oral testimony, from which it appeared that it was customary for the prothonotary of Carbon county, to put writs, as he issued them, into a box, in his office, set apart for the sheriff, and to which that officer had free access at all times. It also appeared that the prothonotary had placed writ No. 2 in this box before No. 3 was made out, but that this latter writ was put into the sheriff’s possession some hours before he took the former out of the box. We do not think this evidence warranted the conclusion to which the auditor and court below arrived. It will be observed, that the lien of an execution attaches, not from the date of its issue, but from the time it comes into the hands of the sheriff: Act June 16th 1836, sect. 37, Pamph. L. 768. But the ruling of the court below would, in effect, give the lien to the execution first issued, for the prothonotary would naturally and uniformly place these writs in the box in the order in which they were made out. Such was the result of the case under consideration; No. 2 was the first in the box and took the money, though No. 3 was first in the sheriff’s hands. This was a complete inversion of the Act of Assembly. The setting apart of a pigeon hole, in the prothonotary’s office, for the use of the sheriff, is a mere matter of convenience, and the putting of a writ therein is no delivery to him. It is undoubtedly true, that in the absence of an endorsement of the time of receipt, parol evidence may be adduced to prove which of two or more writs came first into the custody of the executive officer : Mifflin v. Will, 2 Yeates 177; Hale’s Appeal, 8 Wright 438. But as is observed by Justice Thompson, in the case last cited, when, in obedience to the direction of Act of 1836, the sheriff does note the precise date of the receipts of the writs, it is conclusive. In the case now under review, the precise dates of the receipts of the writs were noted, and an inspection thereof renders itt patent that the money in court should have been applied in satisfaction of the appellant’s execution. The decree of the court below is reversed at the costs of the appellees, and a new distribution ordered.


author: Mr. Justice Si-iarswood

text:
    Kemmerer versus Tool et al.

    1. One owning land subject to a lien purchased other land before the lien expired, and agreed, by amicable sci. fa., to revive the lien so as to bind the after-acquired land. "Within four months he was declared bankrupt. Held, that the agreement was not in fraud of the bankrupt law.
    2. The circumstance that a debtor consents to do what was for his own advantage would not affect the creditor with knowledge of insolvency, which from other facts he had no reasonable cause to believe.
    3. The bankrupt’s real estate was sold by the sheriff, who paid the judgment-creditor in the revived judgment. Held, that the Court of Common Pleas had jurisdiction to entertain a suit by the assignees in bankruptcy for the recovery of the money so paid, if the judgment had been in fraud of the bankrupt law.
    March 17th 1876.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1875, No. 75.
    This was an action of assumpsit, brought July 6th 1872, by James I. Tool and Charles W. Romieh, assignees in bankruptcy of E. H. Knerr, against Martin Kemmerer. The action was brought to recover the amount received by the defendant from the proceeds of a judgment obtained by him against the bankrupt within four months of the commencement of the proceedings in bankruptcy; the plaintiffs alleging that the judgment was in fraud of the bankrupt law, as having been confessed when the bankrupt was insolvent, or in contemplation of insolvency, and the defendant having had reasonable cause to believe that the bankrupt was insolvent.
    The case was tried September 17th 1874, before Longaker, P. J.
    The plaintiffs, under objection and exception, gave in evidence the record of proceedings in bankruptcy, under which, on the 22d of June 1870, Knerr was declared a bankrupt.
    Also, under objection and exception, the record of a judgment, Martin Kemmerer against Edward H. Knerr, entered April 8d 1868, for $4000.
    They gave evidence that at the time of entering this judgment, the defendant owned a considerable quantity of real estate, amongst the rest, real estate in the First ward and other parts of the city of Allentown, and a body of ore land. On the 30th of May 1868, Knerr sold his ore land, and Kemmerer released this land from the lien of his judgment; and in the same year he sold his real estate in the First ward, Allentown; from the purchase-money he paid $1350 on the judgment, and Kemmerer released this property from its lien. In 1869 Knerr bought other real estate, called the Marx farm. Afterwards, Kemmerer, in order to obtain a lien on the Marx farm, took to Knerr an agreement, dated May 16th 1870, for an amicable scire facias for the revival of the lien of his judgment. Knerr signed the agreement; it was filed in the prothonotary’s office, and judgment entered upon it, May 17th 1870, a few days before the commencement of the proceedings in bankruptcy. To October Term 1870, an execution was issued against Knerr; under it the Marx farm was sold for $6300, and on the 8th of November 1870, Kemmerer received from the sheriff, out of the proceeds, the sum of $2583.27, in full of debt, interest and costs on his judgment.
    There was much evidence as to Knerr’s insolvency, and as to whether Kemmerer knew or had reasonable cause to believe that Knerr was insolvent when he executed the agreement to revive the judgment so as to make it a lien on the Marx farm. There was no evidence that Kemmerer had made inquiry as to Knerr’s solvency.
    The following were points of the defendants:—
    “ 1. This court has no jurisdiction in determining the validity of the payment of the money by the sheriff to the defendant, and the assignees of Knerr cannot recover it back in this action.
    “ 2. The assignees of Knerr should have claimed the fund from the sheriff or brought the same into court for distribution, and their allowing the money to be paid to the creditors, estops them from claiming it now.
    “ 8. The fund having been distributed and paid by the sheriff to the creditors of Knerr, it cannot now be recovered back.”
    These points were refused.
    The court charged:—
    * * * “ Knerr must have been insolvent, or was contemplating insolvency. Insolvency under the Bankrupt Act is not a total inability by Knerr to pay his liabilities for want of assets, but it is that condition financially when he is unable to pay his notes and other liabilities generally as they fall due. A failure to meet a note or two, or other indebtedness when due or demanded, is not enough if payment be made within a reasonable time thereafter, but if there be a general failure to pay, then the condition, of the law is satisfied, and insolvency has occurred, or the debtor may be said to be acting in contemplation of insolvency. A man being a trader may have property sufficient to pay all his debts, and yet, if there be a general failure to pay when due, he will, by the provisions of the Bankrupt Act, be insolvent, or acting in contemplation of insolvency. Insolvency is a question of fact and is not founded upon the actual knowledge of the debtor and creditor, a reasonable cause to induce belief is all that is required.
    “ Under these instructions you will inquire whether or not, on May 17th 1870, when the agreement to revive the judgment was given: Knerr was insolvent or contemplating insolvency. * * *
    “ You will then recur to the inquiry at the time of the revival, was Knerr insolvent, or contemplating insolvency ? You will, if found in the affirmative, have established the first requisite, and you will next inquire for the second condition, viz.: was the revival given with a view to prefer the defendant over the other creditors? This condition is satisfied if the object of the revival was to extend the lien of the judgment upon after-acquired property ; by operation of law the effect of the revival was to extend the lien on the after-acquired property, and there being after-acquired real estate proven, it may safely be found as a fact that the'revival was given with a view to prefer the defendant over the other creditors.
    “If you find-the first and second requisites established as facts, you will inquire for the third requisite, namely : that the defendant at the time of the revival had reasonable cause to believe that Knerr was insolvent, or was contemplating insolvency. [Reasonable cause to believe, is that condition of mind produced from facts and circumstances which would put a prudent and careful man upon inquiry, as to the solvency or insolvency of Knerr; it is a well-founded suspicion, based upon facts from which such suspicion will reasonably flow, it is a state of mind produced from facts less than actual knowledge, or less than a full conviction of the actual fact. Reasonable cause will also be presumed under a certain condition of facts. It is a fact that the debt sought to be secured by the revival was not created at that time, but was subsisting since January 1868, and whenever the debt is thus subsisting and a revival is taken merely to extend the lien thereof, it is an act done out of the usual course of business, and being so done, it was the duty of the defendant to make an inquiry as to the solvency or insolvency of Knerr, and on failure so to make the inquiry, the presumption follows that the defendant would have found reasonable cause to induce the belief that Knerr was insolvent or was contemplating insolvency. There being no evidence that such inquiry was made, you are instructed that this requisite has been established.]
    “ And, fourthly, was the act of revival intended to be a fraud upon the Bankrupt Act? This intent may be inferred from the legal effect of the act done. The legal effect of the revival was to give this preference, and this effect the debtor and the defendant were bound to know, and the revival and the extension of the lien of the judgment having occurred, the presumption follows that a fraud upon the Bankrupt Act was intended. This legal presumption, however, may be overcome, if from the evidence and all the surrounding circumstances of the case, you are satisfied that the condition of Knerr was not that of insolvency, or that he was not acting in contemplation of insolvency.” * * *
    The verdict was for the plaintiffs, for $3182.15.
    The plaintiffs took a writ of error, and assigned for error, amongst others:—
    The answers to their points above given, and the part of the charge in brackets.

      0. J, JErdman and J. JD. Stiles, for plaintiffs in error.
    The money having been paid by the sheriff to Kemmerer, the Court of Common Pleas had not jurisdiction in this case, as it would have had if the assignees had claimed in a distribution by the court: Biddle’s Appeal, 18 P. F. Smith 13; Rohrer’s Appeal, 12 Id. 498; Campbell’s Case, 1 Lead. Cas. in Bank. 30; Miller v. O’Brien, 9 Blatch. 270. If an insolvent debtor believes he will be able to continue his business, and pays a just debt without a design to give a preference, the payment is not fraudulent, although bankruptcy should follow: Gregg’s Case, 4 Bank. R. 150; Bachman v. Smith, 16 Wallace 277; Wilson v. Bank, 17 Id. 473. Whether a creditor has reasonable cause to believe the debtor insolvent is for the jury; Foster v. Hackley, 2 Lead. Cas. in Bank. 8 ; Dorr v. Sargeant, 15 N. H. 115 ; Phœnix v. Ingraham, 5 Johns. R. 412 ; Casteel v. Booker, 2 Exch. 691; Buckingham v. McLean, 13 Howard 151.

      B. B. Wright, Jr. (with whom was B. A. Wright), for defendants in error.
    As to jurisdiction, cited, Holl v. Dreshler, 21 P. F. Smith 300; Biddle’s Appeal; Rohrer’s Appeal, supra; Trader’s Bank v. Campbell, 6 Bank. R. 353; Cook v. Whipple, 5 N. Y. 150; Cook v. Waters, 9 Bank. R. 155. As to the effect of the agreement to revive the lien: Trader’s Bank v. Campbell, supra.

   Mr. Justice Si-iarswood

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

The errors assigned to the charge of the court, except the third, may be dismissed with the general remark that they are not sustained. We have no doubt of the jurisdiction of a state court to entertain such an action, and although in an ordinary case it may be doubted whether a bond fide creditor who has received from a sheriff the amount of his claim and may in good conscience retain it, though the payment to him was by mistake, can be compelled by an action to refund, yet in this particular class of cases that question is precluded by the express provision of the thirty-fifth section of the Bankrupt Act that “ the assignee may recover the property, or the value of it, from the person so receiving it or so to be benefited,” in contravention of the enactment as to fraudulent preferences.

We think, however, that there was error in so much of the charge excepted to as instructed the jury that when a subsisting debt is secured by judgment, and “ a revival is taken merely to extend the lien thereof, it is an act done out of the usual course of business, and being so done, it was the duty of the defendant to make an inquiry as to the solvency or insolvency of ICnerr, and on failure to make the inquiry, the presumption follows, that the defendant would have found reasonable cause to induce the belief that ICnerr was insolvent or was contemplating insolvency. There being no evidence that such inquiry was made, you are instructed that this requisite has been established,” namely, that the defendant, Kemmerer, had reasonable cause to believe that ICnerr was insolvent.

That the learned judge was supported by some of the bankrupt decisions in the Federal courts, prior to the determination of the Supreme Court of the United States, in Wilson v. City Bank, 17 Wallace 473, must be conceded. But the Supreme Court in that case gave a more liberal and reasonable construction of the Bankrupt Act in support of the rights of bonfi fide creditors. It was held, that something more than passive non-resistance of an insolvent debtor to regular judicial proceedings, in which a judgment and levy on his property are obtained, when the debt is due, and he is without just defence to the action, is necessary to show a preference of a creditor, or a purpose to defeat or delay the operation of the Bankrupt Act; that though the judgment-creditor in such case may know the insolvent condition of the debtor, his levy and seizure are not void under the circumstances, nor any violation of the Bankrupt Law; and that a lien thus obtained by him, though within four months of the filing of the petition, will not be displaced by subsequent proceedings in bankruptcy against the debtor.

We must assume in this argument that Kemmerer had no knowledge of Knerr’s insolvency, and no reasonable cause to believe it, unless in the bare fact that Knerr, on his, Kemmerer’s, application, was willing to consent to a revival of his judgment, so that it might be a lien on real estate acquired by Knerr subsequent to its date. What was there in this to excite Kemmerer’s suspicion, or put him on inquiry ? Is it out of the usual course of business for a judgment-creditor, the lien of whose judgment is about to expire, to say to his debtor, “I do not wish to put you to any unnecessary costs by adverse process; give me an amicable revival ?” It may be said to be almost an everyday thing. The advantage is all on the side of the debtor, not of the creditor. Kemmerer might at once have sued out an execution, made a levy on the after-acquired real estate, and then secured the lien which he was desirous of obtaining.

Surely, the mere circumstance that the debtor consented to do a thing which in any aspect was for his own benefit, should not be allowed to affect the creditor with knowledge of insolvency, which from no other facts he had any reasonable cause to believe, yet the charge of the learned judge certainly went this far.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Grim versus Bonnell.
    1. In an action for goods sold, the plaintiff testified that defendant said, “ if he concluded to take them he would have George come there and tell us so; give us the order.” This did not prove that defendant had authorized George to act as his agent to buy the goods, nor justify the admission of the evidence of his statements.
    2. An agent may prove his authority when by parol, but his declarations in pais are not proof of it.
    3. An agent's declarations may be evidence against his principal as part of res gestee, if made in conducting his agency, after the evidence has established his authority to speak for his principal.
    4. George told plaintiff that defendant had concluded to take the goods, and gave plaintiff a memorandum to ship the goods to defendant, to whom George was indebted. Defendant testified that he had given no order for the goods. Evidence that at the time of the delivery of the goods to defendant he said he had bought them from George and gave him credit on his books for the price, was admissible.
    5. Declarations, to become part of the res gestee, must have been made at the time of the act done.

      March 17th 1875.
    Before A&new, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Northampton county: No. 67, to January Term 1875.
    This was an action of assumpsit, brought October 13th 1873, by Alexander Bonnell against Jacob L. Grim, to recover the price of grain which the plaintiff claimed that the defendant had bought from him, through the defendant’s agent. The question was, whether the grain had been bought from the plaintiff or from the alleged agent.
    The case was tried September 24th 1874, before Kirkpatrick, P. J.
    The plaintiff gave in evidence, an entry in his books, charging defendant as follows:—
    October 11th 1872. 100 bags containing 200 bushels
    wheat at $1.69 . . . $338
    100 bags wheat screenings at $1.25 125 weighing .... 1
    J. Gurnee, who was in the employ of plaintiff, testified that in October 1872 the defendant and George Wenner were at the store of plaintiff in New York ; they examined his wheat and talked about prices ; plaintiff said he would not buy then ; if he made up his mind to buy he would leave the order with Wenner; would leave instructions with him whether to buy or not; defendant and Wenner talked about 100 bags of wheat and 100 bags of screenings. When defendant was called on by witness to settle the bill, he said he had settled with Wenner who owed him, that he had bought the wheat of Wenner, and had given him credit on his books.
    Plaintiff testified : that defendant and Wenner were at his store; Wenner said plaintiff wished to buy about a car-load of wheat and wheat screenings ; plaintiff tried to sell to him ; he said he wished to look around a little; if he concluded to take he would “ have Wenner tell the plaintiff, give the ordera day or two after-wards, Wenner saw the plaintiff and said defendant had concluded to take a car-load of wheat and screenings, and gave an order to plaintiff to ship it to Freemansburg, with the prices marked as they had been given to defendant.
    It was then proposed to ask plaintiff: “What did George Wenner say to you when he gave you this memorandum about the time when the grain must be paid by Grim ?”
    The question was objected to as incompetent, unless connected with authority from defendant to make declarations as to the time of payment.
    The court admitted the question as put, and sealed a bill of exceptions.

      Plaintiff testified that he asked about pay, and said thirty days was too long; Wenner said defendant would pay it in twenty days; he could pay then as well as any other time ; plaintiff said he would ship the goods. When defendant and Wenner were at the store, the quantity was spoken of by Wenner ; all three talked together. Wenner did not ask to purchase on his own account. Wenner was then in plaintiff’s debt and was insolvent; plaintiff would not have sold him two bushels of wheat; plaintiff sent the wheat to defendant, in consequence of his saying that he would leave word with Wenner for plaintiff.
    Plaintiff then offered in evidence the memorandum given to him by Wenner, viz. :
    “J. L. Grim.
    Freemans Burg Penn
    New Jersey Central 20 Day time to pay.”
    “ $167 and Cartage 125 for Screenings
    100 Bgs Wheat
    100 Bgs Screenings
    It was objected to by the defendant, on the ground that there was no proof that the paper was written by defendant or authorized by him.
    The court admitted the offer and sealed a bill of exceptions.
    The defendant testified : that Wenner owed him since 1872 the sum of $921.50 ; that the debt had not been paid. Wenner was in business in New York, and told defendant when he demanded payment that if he wanted grain he would sell it to him, he had no money; he went with defendant to plaintiff’s store; plaintiff asked defendant if he could sell him a car-load of the screenings; defendant said “No !” Plaintiff then said, “You had better leave your order.” Defendant replied he would see, and left the store. He further testified : “I did not give any authority in that store to buy any grain for me ; I did not at any time give him any order in writing, or by word of mouth, to buy any grain for me.” Defendant was then asked the following questions:—
    “ Did you subsequently buy the grain in controversy of George Wenner at your mill in Saucon township in this county, and give him credit for the amount on your books ?”
    Defendant proposed to ask another witness:—
    “Did you hear George Wenner say, on or about the middle of October 1872, to Grim, ‘I have a car-load of grain at Freemansburg; unload it and give me credit on your books’ ?”
    Defendant offered in evidence the following letter from Wenner to defendant, Wenner being a resident of New York, and beyond the process of the court.

      “Reading, Oct. 18th ’72.
    Sir: If a bill does come from Mr. Bonnell I bought the stuff on twenty days. Will pay it. Will not hurt you any if you get a bill. It was the best I could do. Now take the grain and say nothing. I will do the best I can. Yours,
    Geo. Wenner.”
    Also, the day-book of defendant, showing credits of the grain in favor of George Wenner, October 18th 1872.
    Each of these offers was' objected to as res inter alios acta, rejected by the court, and several bills of exception sealed.
    The defendant’s seventh point, with its answer, was:—
    “If the jury believe there was a boná fide sale between Grim and Wenner, that Grim paid for the goods by crediting Wenner with the amount of his bill, and that Grim retained the goods in good faith, believing that he had bought them and paid for them in the regular course of trade, it is their duty to fipd a verdict in favor of the defendant.”
    Answer. “ This point is denied, as having no material application under the evidence.”
    The verdict was for the plaintiff for $526.92.
    The defendant sued out a writ of error, and assigned for error :
    1, 2. Admitting the plaintiff’s offers of evidence, which were objected to.
    3-6. Rejecting the defendant’s offers of evidence.
    7. The refusal of defendant’s seventh point.

      W. F. Foster and F. Green for plaintiff in error.
    An agent may prove his own authority when by parol, but his declarations, in pais, are not proof of it: Jordan v. Stewart, 11 Harris 247; Clark v. Baker, 2 Wharton 340; Chambers v. Davis, 3 Id. 44. Defendant had a right to give whatever evidence he could to show that he had acquired the goods by a boná fide purchase from Wenner: Gerrish v. Chartier, 1 M., Gr. & Scott 13.

      B. F. Fachenthall, for defendant in error.
   Mr. Justice Woodward

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

At the point which had been reached in the trial of this cause, when the declarations of George Wenner were admitted in evidence, there had been no proof to warrant the assumption that he had ever been authorized to act as agent for the defendant. The witness Gurnee and the plaintiff had sworn, that Wenner and the defendant had been together at the plaintiff’s store, and that some negotiation was had for the purchase of grain. The defendant declined to buy, and in leaving, he said, according to the statement of Gurnee, “ if he made up his mind to buy, he would leave the order with Mr. Wenner; he would leave instructions with Mr. Wenner whether to buy or not;” or, as stated by the plaintiff, “ if he concluded to take it, he would have George come there and tell us so ; give us the order.” This evidence did not justify the admission of proof of the statements of Wenner. Such proof was entitled to he received only on the theory that he had been authorized to contract for the grain on behalf of the defendant as his agent, and there had been nothing to show that a word had passed between them on the subject after they left the plaintiff’s store. Indeed, throughout the trial, there was nothing to indicate the existence of an agency, except what could be implied from the declaration of Wenner in his conversation with the plaintiff. “An agent is competent to prove his own authority when it is by parol, but his declarations in pais are not proof of it; and though they become evidence as part of the res gestee, if made in the conduct of the business intrusted to him, yet other evidence must first establish his authority to speak before his words, shall bind his principal Jordan v. Stewart, 11 Harris 244. Agency cannot be proved by the declarations of the agent without oath, and in the absence of the party to be affected by them: Clark v. Baker, 2 Whart. 340: Chambers v. Davis, 3 Id. 44.

The memorandum which the plaintiff testified he received from Wenner when the contract for the grain was made, was also improperly admitted. The record does not show in whose handwriting the memorandum was. It may or may not have been in Wenner’s, but that is indifferent, for it could only have been made competent evidence by proof, either that the defendant had written it, or that he had authorized Wenner to act as his agent. * The first and second specifications of error are sustained.

The testimony specified in the third, fourth and sixth assignments of error should have been received. The defendant had sworn that he had given no order, verbal or written, for the grain purchased from the plaintiff. Wenner was indebted to him in a sum exceeding $900. When the car load of grain was bought, the plaintiff had been requested to ship it to the defendant. The offer was to prove that at the time of the delivery, the defendant bought the grain of Wenner, and gave him a credit on his books for the amount which had been agreed upon as its price, and that Wenner had said about the middle of October 1872, that he had a car load of grain at Ereemansburg, and had requested the defendant to unload it and give him credit on his books. The defendant’s day-book was offered to show the fact that the credit was given on the 18th of October 1872. Now, keeping in view the defendant’s positive denial of any authority in Wenner to bind him, there was nothing in the position of. the parties at the point of time to which these offers related, to create a motive to fabricate testimony or falsify facts. The grain had been bought by Wenner in the name of the defendant, and he was selling it as his own. It had been shipped, but the letter of the plaintiff demanding payment had not been received. How could the evidence offered be treated as res inter alios ? It would have explained the defendant’s possession of the grain. By the plaintiff’s case, he stood charged with obtaining and holding another man’s property, and with refusing to pay for it. Why could he not show that he had taken it in payment of a debt ? The proposition was to lay the exact character of the transaction before the jury. All the items of evidence embraced in the three offers, were res gestee, for théy were eotemporaneous with a material fact in the cause— the delivery of the grain — and were so connected with it as to illustrate its character. It was error to reject them.

The rejection of the letter of Wenner, to which the fifth assignment relates, was right. It was sent from Reading, and although dated on the 18th of October 1872, must be presumed to have been received after the delivery had been accomplished. Declarations, to become part of the res gestee, must have been made at the time of the act done which they are supposed to characterize, and calculated to unfold the nature and quality of the facts they were intended to explain: Enos v. Tuttle, 8 Conn. 250. So far from harmonizing with the other testimony offered, the letter introduced an element entirely inconsistent and in conflict with it. If the fact which it disclosed, that the grain bad been bought in his name had been brought to his notice before delivery, it is to be assumed that the defendant would not have accepted it. The letter would have been admissible only as the act of a participant in a combination by Wenner with the plaintiff to defraud the defendant, and not the slightest suggestion of the existence of such a combination has been made throughout the cause.

There was no such error in the answer of the court below to the defendant’s point, as, of itself, to require a reversal of the judgment. The statements proved to have been made by the defendant in his conversation with Gurnee, were some evidence that he had bought the grain of Wenner and had credited him with its price. By the rigid, rejection of the other testimony, however, they stood alone, and, without any corroboration, they can scarcely be held to have amounted to proof substantial and significant enough to have supported a verdict.

Judgment reversed, and a venire facias de novo awarded.-