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ular series of conveyances, the plaintiff in this suit became the owner. The plaintiff offered to read from the record this deed, as proof of title. Defendant objected because it was not acknowledged before an officer having authority to take acknowledgments of deeds. The court sustained the objection, and excluded the deed. Was this ruling correct? Unquestionably, the deed was executed and delivered by the commonwealth to Dorothea Brien, plaintiff's predecessor in title. If accepted, for what on its face it purports to be, it put in the purchaser whatever title the commonwealth had acquired by the commissioner's sale. By the second section of the act of 1807, the secretary of the commonwealth, on certificate of the state treasurer that the purchase money of the John Nicholson land, as fixed by the sale and report of the commissioners, had been paid, was directed to make and deliver to the purchaser a deed for such estate as Nicholson had in the land. Therefore, by the authority of the supreme law of the land, the sovereign, with the great seal of the commonwealth affixed, executed and delivered the deed. In the very nature of our government, there could be no higher civil authority. A patent from the commonwealth is simply a deed of land by her to a purchaser from her. The term, although seldom used, except in grants from the state to individual purchasers, under the land laws, is just as applicable to any grant of land by the commonwealth under any other laws. This instrument is a deed or a patent, just as one chooses to call it. The act of 1781 prescribes the form of a patent or deed issued under the general laws regulating the grant of vacant lands by the state. The acts of 1806 and 1807 prescribe the form of the deeds to be executed for a grant of the "Nicholson court" lands. The latter are, to all intents and purposes, just as much patents as the former. There is not a word in any of the acts of assembly, or in any of the cases construing them, that restricts the word "patent" alone to grants of unappropriated vacant land purchased by warrant and survey.

Our recording acts were intended to provide for the proper authentication of deeds, that they might be placed of record within the county where the land lay. The record then, or an exemplification of it, became evidence, the same as the original. The record preserved by authorized copy the original instrument. Prior to the act of March 14, 1846, no law required that patents or deeds from the commonwealth, to entitle them to record in the counties where the land lay, should be acknowledged before any officer. The deed of the sovereign, with the seal of the commonwealth, was considered sufficient authentication to entitle them to record, and there are thousands of patents throughout the state issued and recorded before the act of 1846 without acknowledgment. Nor is the reason very obvious why the act of 1846 in

cluded deeds from the commonwealth, as instruments requiring acknowledgment to entitle them to record. Why the commonwealth should appear before a justice of the peace, and acknowledge her deed, with her great seal affixed, to be her act and deed, when the only evidence of her subordinate's authority was her deed (his commission), with her seal affixed, is not clear. Why go to the creature, that he may certify to the identity of and genuineness of the act of his creator? But the act of 1846 so provides. This deed, however, was recorded June 8, 1844, and the first section of the act of 1846 (P. L. 124) expressly validates the record by enacting that "where any of the deeds aforesaid have heretofore been recorded in the office for recording deeds in the county where the lands lie * the records thereof, or duly certified copies thereof, shall be as good evidence as if the same had been recorded under the provisions of this act."

We think the deed was properly recorded when presented for record, although not formally acknowledged, and the validity of its record is expressly ratified by the saving provision of the act of 1846. The record should have been admitted as an evidence of title on the part of plaintiff, for it tended to show an express recognition by the commonwealth of at least an equitable title in John Nicholson at the date of the sale of this tract by the commissioners directed to be appointed by the acts of 1806 and 1807. Appellant's first and second assignments of error are also sustained.

The judgment is reversed, and a v. f. d. n. awarded.

(204 Pa. 288)

DAVIS et al. v. BEERS et al. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

TAXATION-COLLECTOR'S RETURN-INSUFFICIENCY OF PERSONALTY.

1. Under Tax Acts 1834, 1860, 1869, the duties of tax collector in Cambria county devolve on three different collectors-one for the state, county, and poor tax; another for the school tax; and another for the road tax. Acts 1844, § 41 (P. L. 501), provides that where personal property cannot be found, sufficient to pay the taxes assessed, the collectors shall return the same to the commissioners of the several counties, and the lands of the delinquent shall be sold in satisfaction thereof. The evidence showed that there was on the land of a de linquent a considerable amount of property, suf ficient to pay either of the collectors, though not all. Each collector returned that he could not find sufficient property by levy on which the taxes could have been collected. Held erroneous, in that, if there was sufficient personal property on the premises to pay any one tax, it should have been collected, and a return of "No property found," because there was not sufficient to pay all the taxes, was bad.

Appeal from court of common pleas, Cambria county.

Action by S. W. Davis and another against W. M. Beers and others. Judgment for plaintiffs, and defendants appeal. Reversed.

Defendants presented these points:

“(2) The court is respectfully requested to instruct the jury that the tax sale is null and void, if there had been sufficient personal property on the premises at the time of the return of taxes from which the collector of school tax could have made the amount on his duplicate, or from which the collector of county tax could have collected the amount on his duplicate, or from which the collector of road tax could have made the amount on his duplicate. It is not necessary that there should be personal property on the premises sufficient to have paid the sum total of all the taxes assessed against this land for that year. Answer. This point is denied.

"(3) That the collector of school tax did not make a proper return if there was sufficient personal property on the premises from which the school tax could have been collected, and therefore a sale for school tax would be void. Answer. So far as the first part of the proposition is concerned, it is probably true that the return was not a proper return, but, as already instructed in our general charge, that would not be conclusive on the question, and warrant us in declaring that a tax sale for school, road, and county taxes for that year would be void.

"(4) That the supervisors did not make a proper return if there was sufficient personal property on the premises from which the road tax could have been collected, and therefore a sale for such tax is void. Answer. We make the same answer to this as to the third point, with the substitution of the word 'road' for 'school.'

"(5) That the collector of county tax did not make a proper return if there was sufficient personal property on the premises from which the county tax could have been collected, and therefore the sale for such tax is void. Answer. We make the same answer to this point, with the substitution of the word 'county' for 'school.'

"(6) The uncontradicted testimony of the defendants showing that there was personal property on the premises during the year for which taxes were unpaid, and the supervisors and the collector of school tax and county tax not having exhausted said personal property by a sale of the same prior to making his return, the returns of these officers are invalid, and your verdict must be for the defendants. Answer. This point is denied. While we find no decision on the subject, we cannot conceive it to be the law in a given case, where the jury find from the evidence that there was not sufficient personal property on the land to pay the taxes assessed, that a sale made for nonpayment of those taxes would be void because the collector did not exhaust such personal property as there was on the land before making his return."

The court reserved the following question

of law: "That the plaintiffs have not shown any title to the land described in the writ in this case, for the reason that it is admitted that the county commissioners did not petition the court of common pleas of Cambria county, setting forth a description of the property to be sold, and the reasons therefor, and the court did not fix a day for a hearing, and give notice in at least two newspapers in Cambria county once a week for three consecutive weeks, and that the court did not have a hearing and did not make an order and decree in the premises, and that no return to the commissioners' sales was made to the court, the same as returns to orphans' court sales are now returned, and the court did not confirm the said sale."

Verdict for plaintiffs, upon which judgment was entered. Errors assigned were above instructions, quoting them; in entering judgment for plaintiffs on the verdict.

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

P. J. Little, A. V. Dively, and M. D. Kittell, for appellants. Alvin Evans, J. W. Leech, and John E. Evans, for appellees.

DEAN, J. The case below was an ejectment brought by plaintiffs against defendants to recover possession of a tract of land, containing about 79 acres, in Reade township, Cambria county. Plaintiffs claimed title by a county commissioners' sale, and deed in pursuance thereof. The commissioners took their title by deed of the county treasurer on a sale for unpaid taxes; deed being dated December 28, 1894. The land had belonged to F. A. Shoemaker, who mortgaged it to the Equitable Loan & Building Association of Altoona to secure a loan. The lender foreclosed the mortgage, and, on the judgment obtained, the property was advertised for sale by the sheriff and sold, but before delivery of his deed the sale was made to plaintiffs by the commissioners. Both parties therefore claim under the same source of title-F. A. Shoemaker. If the tax sale by the county treasurer, under the law and facts, vested a good title in the commissioners, then Shoemaker had no estate in the land which passed by the sheriff's sale on the mortgage. The taxes for which the land was sold by the treasurer were assessed for the years 1891 and 1892. The property was assessed, as 80 acres and 7 houses, to Shoemaker. The tax assessed for 1891 was: County, $15.75; school, $18. For 1902: County, $8.51; road, $7.20; school, $14.40.

The defendants offered considerable evidence going to show that there was personal property on the premises out of which the taxes could have been made if the collector had levied upon and sold it. The duties of tax collector devolve upon three different collectors in Cambria county, under

the acts of 1834, 1860, and 1869. One collects county, state, and poor tax; another, school tax; and still another, road tax. To subject this land to sale by the county treasurer for unpaid taxes, each collector made affidavit, and filed the same with the county commissioners: "That after a proper effort at the proper time, he could not find sufficient personal property, by a legal sale of which the taxes on the land, or any portion of said taxes, could have been collected." On this return of the collectors the land was turned over to the county treasurer for sale. The defendants averred that these affidavits and the returns were false, and this made up the first issue of fact for the jury, and the principal one of law for the court. The instructions of the court on the evidence bearing on this fact are the subject of complaint in appellants' third assignment of error, which specifies as erroneous the court's answer to appellants' second written prayer for instructions, as follows: "That the collector of school tax did not make a properreturn, if there was sufficient personal property on the premises from which the school tax could have been collected, and therefore a sale for school tax would be void." this the court answered: "So far as the first part of the proposition is concerned, it is probably true that the return was not a proper return, but, as already instructed in our general charge, that would not be conclusive on the question, and warrant us in declaring that a tax sale for school, road, and county taxes for that year would be void."

To

The only instruction on this subject in the general charge is as follows: "If sufficient property could have been found thereon to pay the taxes assessed thereon for that year [meaning 1891], the sale for taxes that year would be void." In view of the evidence and the substance of the written point, we think this answer was error, because it did not clearly declare to the jury the law bearing on the evidence. As we read the evidence, it pretty plainly showed that there was personal property on the premises in both of the years to answer the demand of either one of the collectors for that year. The act of 1844, § 41 (P. L. 501) provides that "all real estate within this commonwealth, on which personal property cannot be found sufficient to pay the taxes assessed thereon, and where the owner or owners thereof neglect or refuse to pay the said taxes, the collectors of the township in which the said lands lie, shall return the same to the commissioners of the several counties; and the said lands shall be sold as unseated lands are now sold, in satisfaction of the taxes due by the said owner or owners: provided, that no sale shall be made of such lands for the purpose aforesaid, until the owner or owners thereof shall have refused or neglected to pay the taxes aforesaid, for the space of two years." As the learned judge of the court below rightly said,

the act of 1879 (P. L. 55), which enacts that "it shall not be so construed as to prevent the original owner or owners from showing that there was sufficient personal property on the real estate sold to pay all taxes assessed thereon which might have been seized by the collector if he had used due diligence," added nothing to the scope or force of the act of 1844. But the palpable meaning of the answer to the point, taken in connection with the general charge, is that if there was not sufficient personal property on the land to pay the whole of the taxes assessed, adding together the taxes in the three duplicates in the hands of the three collectors, then there was not sufficient personal property to pay the taxes assessed on the land, within the meaning of the act. Such is not our interpretation. Here was a small farm; a farmhouse, with a tenant; a small barn; seven houses, some of them occupied. The different kinds of taxes were small in amount. The owner was a nonresident of the township. It cannot be doubted, from the evidence, that there was considerable personal property on the premises in the year it was the collector's duty to collect. It belonged to the tenants who were in possession. Every tenant knows that while in possession his personal property is subject to seizure for taxes. Payment by him may have been part of his rent. It is the duty of the collector, in case the owner be a nonresident, to make demand upon the tenant for the taxes in his duplicate to which is appended his warrant, and, on his refusal to pay, to seize and sell the personal property subject to seizure and sale for taxes. He has no authority to make demand for taxes for which other collectors have warrants. He is not responsible for them, and is not presumed to know the amount. If he makes demand, with an exhibition of his warrant to seize and sell, the tenant may pay. If he do not, it is the duty of the collector to seize and sell. So far as the evidence shows, there was here no demand nor threat of seizure. If the tenant paid the first collector, who can say he would not have paid the others? The kind and value of the personal property on the premises would, to some extent, have been ascertained by the seizure and sale of it. If a sale did not satisfy the taxes, then a return of the amount not reached would have fixed the liability of the land for that amount, and that the owner would have been bound to pay to the county treasurer. In substance, the return of each collector is that there was not sufficient personal property on the premises to pay all the taxes (that is, $66.48); but one (the collector of road tax) admits that he saw property there worth twice the amount of road tax ($7.20) he had against the land. It was not his duty to know that two other collectors had each certain taxes to collect. It was his duty to collect the $7.20 road tax which was intrusted to him to collect. Not

one of these three collectors made a correct return when he averred "that, after a proper effort at the proper time, he could not find sufficient personal property, by a legal sale of which the taxes on the land, or any portion of said taxes, could have been collected." They could not ascertain the facts without the exercise of due diligence. In this, from their admissions and the undisputed testimony, they wholly failed, and the court should have so instructed the jury.

These acts of assembly and the duties of tax collectors were fully considered by Justice Mitchell in Kean v. Kinnear, 171 Pa. 639; and, although that was an action of trespass by the owner against the collector for a false return, the same questions arose as those before us. After noticing the different acts of assembly, he says: "From these statutory provisions, it is clear that the law has established the order for liability for taxes to be, first, the personal property on the premises; second, demand on the owner individually; and, lastly, the land itself; and it is only on failure to collect by the first two methods that resort can be had to the third, and the land be legally sold or returned for sale. The collector, proceeding directly against the land, except under the prescribed conditions, is without warrant of law, and he is liable as a trespasser." The return of the collector in that case was precisely the same as in this one. Appellants' third assignment of error is therefore sustained.

What we have said, in effect, sustains appellants' second assignment, which is based on the court's denial of their second written prayer for instruction. It should have been affirmed.

We do not find any error in the court's

opinion on the reserved points. Lest we be misunderstood, however, we say that the deed to the commissioners, while admissible as a properly authenticated instrument in plaintiffs' chain of title, the recitals in the body of it do not prove the facts set forth in such recitals. Whether the tax sale is void because of noncompliance by the collectors with the provisions of the tax laws still remains as a question of fact to be determined by a jury under correct instructions by the court.

The judgment is reversed, and a v. f. d. n. is awarded.

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where the list was seasonably furnished, and that it omitted to tell the place of abode of each was known to defendant's counsel when the drawing of the jury began.

2. On a prosecution for murder, counsel for the state, in opening the case, stated that he thought that accused, in order to escape the conclusion that he committed the deed, must show what he did with a certain pair of overalls, how human blood became spattered over his clothing, and where he was on the afternoon of the crime. Held, that such language did not involve a declaration that accused was bound to become a witness, but merely meant that the facts, unless met by a defense, would constitute proof of guilt.

3. Where counsel for the state, in opening the case, uses language which might, unexplained, be understood to mean that accused must become a witness, and answer certain evidence, or stand convicted, but the court immediately instructs the jury that such is not the case, there is no error.

4. On a prosecution for murder, deceased having been struck on the head with a blunt instrument, the force of one blow on the side of the head in comparison with the other blows, and the number of blows necessary to cause the cuts on the top of the head, being only determinable by the appearance of the wounds, viewed with a knowledge of the structure of the skull, it was proper to permit a physician, called as an expert, to testify that the blow on the side of the skull was light in comparison with the others, and that the appearance of the wounds in the tissues indicated that the fractures resulted from more than one blow.

5. It was a question whether fractures on the top of deceased's skull were caused by blows inflicted by accused or by contact with a stone while accidentally falling from her carriage. The state claimed that, if the impact had been the result of a fall, it would not have crushed the skull at the top, and that the fracture would have been at the base of the skull. Held, that it was competent for the state's medical expert to illustrate the relative thickness of the different parts, and to testify that from his experience and observation in many hospitals, when a body falls from a height, and strikes on the head, the fracture is generally at the base of the skull.

6. On a criminal prosecution, a remark of the

solicitor for the state, after one of his questions had been objected to and ruled out, that he thought the witness "had made that sufficiently clear," if open to any objection, was an irregularity not warranting a new trial.

7. Gen. Laws, c. 282, § 7, provided that manslaughter without a design to effect death, not being murder nor excusable or justifiable homicide, should be of the first degree when perpetrated by one engaged in the commission of any offense, or by persons bearing a deadly weapon, etc. Pub. St. c. 278, § 7, amended the former by removing the clause "without a design to effect death," and inserting "when perpetrated with a design to effect death." Before the amendment manslaughter "with design," if provided for at all, was included in the classification of manslaughter in the second degree, and punished less severely than manslaughter without design. Held, that the amendment did not abolish the distinction between murder and manslaughter, inasmuch as homicide with design does not necessarily imply murder.

8. Pub. St. c. 278, § 1, enacts that murder in the first degree consists of homicide by poison, starving, torture, or other deliberate and premeditated killing, or committed in perpetrating or attempting to perpetrate certain felonies, and that other murder is in the second degree. Held, that the distinction between the degrees does not consist in the presence or absence of malice, but depends on whether the killing is deliberate, or done in the perpetration of any of the felonies.

9. In order to convict of murder in the first degree, the state must show not only malice. but a deliberate killing, unless the crime was committed in an attempt to perpetrate one of the felonies enumerated in the statute.

10. The malice requisite to the crime of murder is not an inference of law from the act of killing, but must be found by the jury on competent evidence.

11. Pub. St. c. 278, § 1, enacts that murder in the first degree consists of homicide by deliberate and premeditated killing, or committed in perpetrating or attempting to perpetrate certain felonies, and that other murder is in the second degree. Held that, in order to constitute murder in the first degree, the design to kill must precede the killing by some appreciable space of time, aud, if it be not done with design, though the killing was done purposely, it is murder in the second degree.

12. Under Pub. St. c. 278, § 1, making murder committed in an attempt to commit rape murder in the first degree, that the attempt was not far advanced does not lessen the offense.

13. On a prosecution for murder in the first degree, the killing being alleged to have been done in an attempt to commit rape, such killing constituting murder in the first degree under Pub. St. c. 278, § 1, the state must establish the fact that accused attempted the felony, and that death occurred as a means or outcome of such attempt.

14. Under Pub. St. c. 278, § 1, making deliberate and premeditated killing murder in the first degree, on a prosecution for murder there can be no conviction in the first degree unless malice and deliberation be shown beyond a reasonable doubt.

15. Malice and deliberation may be shown by circumstantial evidence, such as the character of the weapon employed, number of blows inflicted, place of the crime, previous conduct,

ctc.

16. On a prosecution for murder, evidence held sufficient to warrant submission to the jury of the question whether accused killed deceased, whether it was done with malice and premeditation, and whether it was done in an attempt to commit rape.

17. On a prosecution for murder, the attorney general. after a certain witness for defendant had testified, remarked that such testimony did not contradict the testimony of a certain witness for the state, but confirmed it, and in connection with the cross-examination of one of the defendant's witnesses he remarked: "I don't know about this stump speech business. I object to his making a stump speech here to display his knowledge." Held, that such remarks, if objectionable, were irregularities, not warranting the granting of a new trial.

18. Where, on a criminal prosecution, medical experts had testified for the state and defense, respectively, and drawn opposite conclusions, it was competent for the state, on the crossexamination of the defendant's expert, to ask him if he had known the state's expert for some time, and if the latter was regarded as eminent authority, the questions being competent as cross-examination for the purpose of discrediting the defendant's expert on the points at issue between him and the other.

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19. On a prosecution for murder, counsel for the state, in closing to the jury, said, "Why, it seems that for some reason or other, when this affair came out. everybody went down there to see about G.," naming defendant. The remark was not contradicted, nor did the court order it stricken out. Held, that inasmuch as the remark was calculated to convey to the jury that defendant was such a character that all eyes turned to him as the perpetrator of the crime, it was prejudicial er

ror.

15. See Homicide, vol. 26, Cent. Dig. §§ 479, 480.

20. On a prosecution for murder, counsel for the state, in closing, said, "This statement was taken right off the very next day after the affair happened," referring to a portion of the testimony of a state's witness. There was no evidence that such witness had ever given a statement prior to his testimony. Held that, as the assertion was unsupported by evidence, and calculated to prejudice accused by securing for a vital statement a higher degree of credit than authorized, it was reversible error. 21. An objection that the exception taken to such remark was too general to warrant its review was untenable where the purpose and application of the exception were obvious from the connection in which it was made.

Exceptions from superior court; Wallace and Pike, Judges.

George H. Greenleaf was convicted of murder in the first degree, and excepts. Exceptions sustained.

Indictment charging the defendant with the murder of Nancy J. Folsom. The defendant was indicted in Merrimack county. On his motion the venue was changed to Belknap county, where the trial took place at the November term, 1901, of the superior court, Wallace, C. J., and Pike, J., presiding. The jury returned a verdict of guilty of murder in the first degree. Judgment was ordered on the verdict, and the defendant filed a bill of exceptions, which was allowed. After the jury were impaneled, and issue was joined, and as counsel was about to make an opening statement, the defendant moved for his discharge on the ground that he had not been furnished with a list of the state's witnesses, and the place of abode of each, 24 hours before the trial. A list of the witnesses had been seasonably furnished, but it omitted to state the place of abode of each, and this fact was known to the defendant's counsel when the drawing of the jury began. The motion was denied, and the defendant excepted. In opening, counsel detailed the facts which the state expected to prove, and said: "We think, if we show this array of facts, that Greenleaf, in order to escape the conclusion that he committed this deed, must show you what he did with that pair of overalls, how this human blood became spattered over his clothing, and where he was on the afternoon of the crime." Exception. being taken to the language quoted, counsel expressed a willingness to withdraw any objectionable remark, and stated that he meant to say that, if the facts detailed were proved, there could be only one conclusion from them. The court thereupon stated to the jury that the defendant was not obliged to answer, nor to testify, nor to explain anything, and instructed them to disregard any remark of counsel conveying a contrary impression. Dr. Beaton, an expert witness called by the state, testified subject to exception that the blow which caused the fracture upon the side of the skull was light in comparison with the other blows inflicted, and that the appearance of the wounds in the soft and

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