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the strictest interpretation of any rule that could require their statements to
be against their interests. If they were admissible only as disclaimers, B. M.
Towle's declaration would be evidence for the plaintiff in this case; but would
not have been evidence for the defendants if the plaintiff had claimed that the
boundary was north of D, A. Such a rule, instead of admitting them because
the declarants made them under circumstances calculated to elicit the truth,
uninfluenced by interest in an existing controversy, would adopt as a test the
subsequent interests of other persons in a controversy concerning the bound-
ary of other lands, — a controversy that might have arisen long after the de-
clarant's decetise. The true rule admits the traditionary evidence, not as a
mere disclaimer or disparagement of title, but on the broader ground of the
nature and necessity of a class of cases in* which great dilficulty in proving
original landmarks is likely to arise from lapse of time. The interests of F.
Sanborn and B. M. Towle, as the respective owners of adjacent lots, the com-
mon boundary of which was unquestioned, showed a strong probability that
they had knowledge of that boundary. B. M. Towle's statement that the
line, D, A, was his southern boundary, was confessedly competent; and there
is no ground of reason for excluding F. Sanborn's concurring statement that
the same line was his northern boundary. Had their statements been mere
conflicting assertions of their claims in an existing contention, they might
have been of no value. Instead of being expressions of their interests in a
disputed boundary, or of their desires to enlarge their possessions, they tended
to prove a common understanding, and to disprove all motive to misrepresent.
Under such circumstances the admission of Towle's statement, and the rejec-
tion of Sanborn's, when the question is between D, A, and a line north of it,
would incumber the rules of evidence with an arbitrary discrimination, and
unjustly suppress the cogent proof furnished by the concord of adjoining

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The f uither objection to the testimony of Sanders, because (1) the declara-
tion of the deceased party was purely hearsay, and because (2) they were not
made on the land» and while pointing out the comer, is not well taken. It is
true that such evidence is hearsay in its nature, but it is equally true that it
comes within a well-recognized and long-established exception to the general
rule of law that hearsay is not competent evidence; and, while it may not
often be entirely satisfactory and conclusive, it has been found to subserve
the ends of justice, and its admissibility in this class of cases is well settled.
As lo the second ground of objection, it is sufficient to say that declarations,
otherwise admissible, are not rendered inadmissible because made off the land,
and because the object referred to was not pointed out. Smith v. Forrest,
supra, 230, 237; Potvers v. Silsby, 41 Vt. 288; Webb v, Richardson, 42 Vt.
472. 474.

4. The defendant contends that the jesting exclamations and remarks of
Sanborn and Towle, as to the removal of the landmarks or bounds, were in-
competent as declarations of living witnesses concerning the location of a
corner bound. It is insisted, however, by plaintiff's counsel, (and such would
seem to be the fact,) that they were not introduced for that purpose, but for
the purpose of showing that at the time the wall was built there were a stake
and stones at D, and that the corner of the wall was placed upon that exact
spot. The statement of these facts by the witnesses in a proper way would
not have been objectionable. The location of the point D being in issue, the
former existence of a stake and stones at the same place where the wall was
subsequently built would not be a relevant fact upon that issue. This was what
the evidence excepted to tended to prove. In legal effect, the involuntary and
coincident remarks of the witnesses to each other amounted simply to a mut-
ual recognition of an established line between them, and that one kind of a
bound was being substituted for another at the same place. Accompanying
an act relevant and material, independently of what was said, and serving to
elucidate and give it a character, no reason is perceived why these remarks
might not properly be considered as part of the res gestct, (see Steph. Dig. Ev.
art. 9, and Railroad Co, v. Fay, 16 111. 558, 568;) but, if not, they were at
most but the statement of a relevant fact in an improper way; and, being
cumulative testimony merely as to the undisputed Sanborn- Towle boundary,
their admission does not afford a sufficient ground for setting aside the report
of the referee.

6. The exception to the testimony of Benjamin Towle, that "the wall at
corner D was supposed to be built on the line between the Sanborn farm and
the school lot," is not well founded. The word "supposed," to which objec-
tion is made, was evidently used by the witness in the sense of "understood,"
and when so taken is not open to valid exception. See Leach v. Bancroft, 61
N. H. 411. The further exception to the testimony of this witness, that "the
Sanborns acknowledged that D was the corner'so far as I ever knew," cannot
be sustained. See Smith v. Forrest and Leach v. Bancroft, supra,

6. The only remaining exception considered in the defendant's brief is to
the admission of the declarations of deceased persons as to the location of the
highway known as "East Street." It appears from the reserved case that the
defendants claimed that the highway as now occupied is the original East
street, against which the Home lots were laid out; while the plaintiff claimed
that the highway, as now occupied, is not the original East street, but that
the street originally run further north five to eight rods from the present high-
way. The original location of the highway was therefore an important ques-
tion upon the location of the southerly line of the Home lots, and, being a
matter of public and general interest, the evidence excepted to was competent.
State V. Vale Mills, 63 N. H. 4; Noyes v. Ward, 19 Conn. 250, 269; 1 Greenl.
Ev. §§ 128-131. The exception was overruled Judgment for the plaintiff
on the report.

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Clark, J„ did* not sit. Doe, C. J., and Allen, J., ooiicarred. Smith, J.»
concurred in the result. Carpenter and Bingham, JJ., were of opinion
that the declarations of Frederick and Josiah Sanborn, and those of Henry F.
Sanborn and Benjamin Towle, were not competent evidence.
on ?a. St .293)

Appeal of School Directors of Bloomsbttrg.

(Supreme Cov/rt of FennayVoania. Ootober 1, 18S8.)

Schools and Sohool-Distriots— Dikbotors— Rbmoyal.

On a petition to remove school directors, defendants did not deny the averment
that they had not appointed the usual and necessary number of teachers, and it ap-
peared that the omission was because the directors could not airreeas to the salary.
Meldj that defendants were properly removed.

Cdrt^oran' to court of quarter sessions, Columbia county; William Elwell,

Petition by the citizens and tax-payers, praying the removal of the school
directors of Bloomsburg for neglect of duty in failing to elect a suffldent
number of teachers. The petition was granted, and the directors appealed.

L. B, Walker and James Scarlett^ for appellants. Bkeler dk Herring and
Geo, E. Bltoell, for appellees.

Gr£BN, J. In this case certain citizens and tax-payers of the Bloomsburg
school-district complain inter alia that the school directors of the district have
neglected and refused to appoint a sufficient number of teachers to keep the
schools in operation. Answers were filed by the six directors, in sections of
three each. In both the answers it is stated that 15 of the teachers were ap-
pointed at the regular meeting for Uiat purpose on 24th June, and that this
was all that were to be appointed, except the principal. It appears by the evi-
dence that 16 was the number that were annually appointed for several years
immediately previous, and there is no doubt under the pleadings and evidence
th^t this was the number intended to be appointed for the year in question,
1887. As the necessity for more than 15 is alleged in the petition, and is not
denied in either of the answers, but, on the contrary, both the answers and
the recorded proceedings of the directors at their meetings conclusively prove
that another was to be appointed, but was not, it must be taken that the
learned court below was right in holding that there was necessity for another
teacher to be appointed. The evidence taken by the commissioner also fully
justified the court in finding as a fact that there was such a necessity. This
being so, it is undoubtedly correct that the board of directors, when they
failed to appoint an additional teacher, failed to perform an imperative duty.
The proceedings of the board show an unseemly, indeed an absurd, contest
over the amount of the salary to be paid to the additional teacher. Three of
the directors insisted that ;$800 should be paid, and the other three insisted
that the amount should be $l,t)00. They refused to make any concessions to
each other, and actually allowed the appointment of a teacher to go by default,
because they were unwilling to agree upon the amount of the salary. Per-
sons who have more pride of opinion than regard for the public interests
committed to their care are not suitable for the exercise of public functions.
The best, in fact the only, course to adopt with them is to relieve them from
the ditficulties of their position, and put others in their place. This is what
the learned court below did, and in an excellent opiuiou fully indicated the
correctness of its action. Proceedings affirmed.

Commonwealth t>. Luzernb Countt.

{Sujyreme Court of PermsyVvania. October 1, 1888.)

1. Taxation— Application of Taxbs— Settlement bt Ck>uNTT— Collatbbal Attack.

For e^h of the years from 1879 to 18:^2, inclusive, the auditor general and state

treasurer made a settlement of account with a county, each settlement showing a

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balanoe due the oounty, whioh arose in part out of credit settlementB for illegal
taxes. In 1888, in pursnisince of a resolution of the board of revenue commissioners,
the auditor genersu and state treasurer transferred a portion of the credit for illegal
taxes to a county which was erected out of the former county, and in the settle-
ment for 1888 the original county was charged with the amount of the transfer.
Heldy that the accounts from 1879 to 1882, unappealed from and unopened, were
conclusive, and the credit could not be diminished without the county's consent.

t. Same— DmsjoN or Ck>UNTT— Tkansfeb of Crsdit— Power ow Rbyskttb Coioas-


The board of revenue commissioners of Pennsylvania has no authority to inter-
fere with the credit settlements of the auditor general and state treasurer with a
county for Ul^ral taxes, by transferring a part of the credit in such settlements to
a county erected out of the former one, no such power having been conferred by

Error to court of common pleas, Dauphin county; John B. MoPHSBaoN,

Appeal by the county of Luzerne from a settlement of its account by the
auditor general and state treasurer for the year 1883. The case was tried
without a jury, and the finding and opinion by MgPherson, J., were as
follows: '* (1) In November, 1879, the auditor general and state treasurer settled
an account with the county of Luzerne for tax on personal property for the year
1879, which showed a balance due the county of $26,596.33. In April, 1881, a
like account was settled for 1880, showing a balance due the county of $24,746.65.
In December, 1881, a like account was settled for 1881, showing a balance
due the county of $22,896.97. In May, 1883, a like account was settled for
1882, showing a balance due the county of $32,263.14. These accounts are
connected, the balance from one year being carried forward to the next. No
appeal was taken from any of these settlements, and they have never been
opened. (2) In April, 1884, a settlement for the year 1883 was made, and
the plaintiff was charged therein with $11,263.59, which was transferred to
the credit of Lackawanna county without the plaintilf's consent. The pres-
ent appeal is taken from this transfer. We have been referred to no statute
or decision which authorizes the auditor general and state treasurer to take
the action complained of. The preceding settlements of 1879>82, unopened
and unappealed from, were conclusive upon both the county and the state;
and since it appeared therefrom that at the end of tlie tax year of 1882 the
plaintiff was entitled to a credit of $32,263.14, this credit was supported by
the final decree of a competent tribunal. It was a valuable interest, and,
while the decree stood untouched, could not be taken away or diminished by
the accounting olficers wiihout the county's consent. In our opinion, there
is no other question in the case. The auditor general and state treasurer form
a tribunal having jurisdiction to settle the accounts for tax on personal prop-
erty between the counties and the state. Having this jurisdiction, and hav-
ing also exercised it, their conclusions are final, if no appeal be taken. This
is a well-known rule, and the result of applying it is that nothing before us
is open to attack except the account for 1883. As to that, no item is appealed
from save the attempted transfer of credit, and the precise point before us
seems to be the bare question of power. Prima facie, such a transfer of
propei*ty from one person to another is without authority; and, since the com-
monwealth is unable to support it by statute or decision, we think the plain-
tiff is entitled to a judgment as hereafter stated. The commonwealth thinks,
however, that other questions are involved, and we will find the f urcher facts
needed to present them. (3) For the years 1875, 1876, and 1877 the board of
revenue commissioners increased the sum of the returns of personal property
made to it for state taxation by the county of Luzerne. The right of appeal
from such action of the board had not yet been given, and the county paid
the taxes due upon the increase. (4) For the year 1878 the board made a
similar increase, and from this the county appealed to this court, as provided
by the act of 1878, (P. L. 126.) In October, 1878, a final decree was entered^

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declaiing the increase to have been made illegally, inequitably, and without
proper and sufficient information, and certifying to the auditor general and
state treasurer that the amount of the illegal increase was the annual sum of
$13,587. (5) Afterwards the board decided that the Increase made by it for
1875, 1876. and 1877 had been illegal, and directed the auditor general and
state treasurer to credit the county with the excess of tax paid for these yeare.
Accordingly, in November, 1879, and April, 1882, these officers made credit
settlements with thecounty of $30,682.48 and $14,608.23, respectively. These
credit settlements are also embraced in the annual settlements referred to in
paragraphs 1 and 2. (6) In 1883 Lackawanna county — which was set off from
Luzerne in 1878 — petitioned the board to revise the credits thus allowed, and
to award to her a proportionate share thereof. Luzerne county protested, but
in January, 1884, the board decided that Lackawanna county was entitled to
a share, and passed this resolution: * Kesolved, that said credit settlements be
divided between the counties of Luzerne and Lackawanna so that Luzerne
county shall retain the three-fourths of the same, and the remaining one-fourth
be given to the county of Lackawanna, as that is the proportion which its
taxation as compared with that of Luzerne entitles it to receive.' (7) In pur-
suance of this resolution, and acting under its authority, the auditor general
and state treasurer made the transfer complained of. We repeat that in our
judgment these facts are not now relevant, because either in whole or in part
they lie behind tlie annual settlements of paragraphs 1 and 2, and cannot be
reached while those settlements are untouched. But if they are proper to be
considered, we have only to say briefly that the board of revenue commission-
ers had no authority to interfere with the credit settlements of the plaintiff.
The powers of the board are statutory, and it is nowhere clothed with the
right to take credit from one county and give it to another. Therefore the
resolution quoted was upon a subject beyond its jurisdiction, and could con-
vey no authority. In this matter the board had no authority to give. If the
transfer is based upon this resolution, it has no foundation and must fall.
The plaintiff is entitled to have restored the credit of $11,263.59 transferred
to the credit of Lackawanna county, and we direct a judgment to this effect
to be entered, if exceptions are not filed according to law."

On exceptions filed by the commonwealth, the following opinion was ren-
dered by McPherson, J. "We have carefully considered the very able and
elaborate argument of the commonwealth in support of her exceptions, but
are still of opinion that the principal questions stated therein cannot be raised
on this appeal. The appeal, we repeat, is simply from the settlement of 1883,
and does not bring up for scrutiny and decision the settlements of earlier
years. The settlement for 1883 shows that the county of Luzerne had a credit
with the commonwealth, arising from past transactions, of $32,263.13. This
is expressly stated to be a balance brought over, and the mahner in which it
was reached is not, as we think, a matter we can now consider. It is also
stated to be a balance arising from the dealings of the county with the com-
monwealth in respect to the tax on personal property, and this is a subject
within the authority and jurisdiction of the accounting departments. If, in
these dealings, they have mistakenly exceeded their authority, the mistake
does not appear on the settlement before us, and is only to be found, if at all,
by going behind it, and examining, not only other settlements unopened and
unappealed from, but also the action of another body, namely, the board of
revenue commissioners. In this proceeding we cannot go so far afield. To
do so would be contrary to the unbroken practice of this court, and, in our
opinion, to the settled rules of procedure in all courts. Some effect must be
given to the official action of the accounting departments, and it matters little
whether that action be called judicial or administrative or ministerial. At
all events, these departments form a tribunal of some sort, to which has beea
given the power of settling certain accounts with the counties; and when they

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exercise the power of settlement upon one of the accounts within their juris^
diction, the result of their action cannot be collaterallj attacked. We believe
the following authorities support this statement: Spangler v. Com,^ 8 Watts,
67; Com. v. lieitzeU 9 Watts & S. 109; Hutchinson v. Com., 6 Pa. St. 124;
Porter v. School Directors, 18 Pa. St. 144; Com. v. Freedley's ExWs, 21 Pa. St,
33; Northampton County v. Yohe, 24 Pa. St. 305; Fitter v. Com., 31 Pa. St.
406; Blackmore v. Allegheny County, 51 Pa. St 160; Philadelphia v, Com.^
62 Pa. St. 451; Bums v. Clarion County, 62 Pa. St. 422; Qlalfelter v. Com.,
74 Pa. St. 74; Siggins v. Com., 85 Pa. St. 278; Com. v. Knox, 1 Penny. 478;
Com. V. Railroad Co., 2 Pears. 389, 394. Now, one of the accounts within
theJr jurisdiction is tliat of each county with the commonwealth in respect to
the tax on personal property. Exercising their undoubted power upon this
subject, we find ns a result that at the beginning of the tax year of 1883 the
county of Luzerne is declared to have a balance to its credit of $32,263.13.
How this balance was reached the settlement does not show, but the presump-
tion is in favor of its correctness and legality. If it be attacked, it is seen at
once that the presumption can only be overthrown by also attacking several
preceding settlements, all unopened and unappealed from, as well as the ac-
tion of another distinct tribunal, in no way a party to this proceeding. This
seems to us so. irregular, and so certain to produce serious confusion and con-
flict of authority, that we think it necessary to hold firmly to the rule sup-
ported by the cases above cited, and to refuse to examine a settlement not ap-
pealed from upon a subject within the jurisdiction of the accounting depart-
ments; otherwise no settlement would be final. In any year the accounts of
earlier years could be gone into, and the authority of the departments would
be little more than that of clerks. Possibly the commonwealth has placed
herself in a position where she may be obliged to allow the same credit twice.
AVe intimate no opinion on that subject; but if she has so placed herself, the
situation is due to her own effort, well meant, but none the less mistaken, to
adjust a dispute which did not concern herself, but only the counties of Lu-
zerne and Lackawanna. As we have heretofore said, the board of revenue
commissioners had no authority to interfere with the credit settlement of Lu-
zerne county, and therefore could give none to the auditor general and state
treasurer. The transfer made by the latter has no foundation in statute or
decision, and, being brought before us by appeal, must be declared erroneous.
The exceptions are overruled, and judgment is directed to be entered in ac-
cordance with the opinion previously filed."

The commonwealth brings error, basing its case in the argument upon the
proposition that the credit settlement made November 6, 1879, for $30,682.48,
and that made April 11, 1882, for $14,668.23, were illegal and void, and that
a subtraction from them does not injure the county of Luzerne.

John F. Sanderson, Dep. Atty. Gen., and W, S. KirTcpatrick, Atty. Gen.,
for the Commonwealth.

The board of revenue commissioners has no authority to revise its action.
Northumberland Co, v. Bloom f 3 Watts & S. 542; Northampton Co. v. Tohe,
24 Pa. St. 305. The credit settlements cannot be sustained, as the action of
the board of public accounts, as they are original settlements and resettle-
ments, under the act of April 8, 1869, (P. L. 19,) must be based on former
action erroneously or illegally had; but no action of the auditor general for
those years can be so impeached. They cannot be sustained under the act of
April 21, 1846, g 8, (P. L. 415,) as it extends only to accounts of public offi-
cers and to errors prejudicial to the commonwealth; nor under the act of 1811,
§1 1, or 16. The case is that of one who has voluntarily paid an illegal tax
which cannot be recovered. Taylor v. Board, 31 Pa. St. 73; Boiough of AJr
lentoum v. Saeger, 20 Pa. St. 421. Claims on the commonwealth within the
act of 1811 are such as would constitute causes of action against indlviduaLk

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Clocffelter v. State, 86 N. C. 51. The credit settletnents are contrary to the
constitutional provision that money can be withdrawn from the treasury only
by appropriation. Railroad Co, v. Alabama, 101 U. S. 832. The authority
of the agents of the commonwealth is to be found in the letter of the law.
Floyd Acceptances, 7 Wall. 666; Qreen v. Beeson, 31 Ind. 7; Parsel v. Barnes,
25 ArlE. 261; BaZto v. Reynolds, 20 Md. 1; Delafteld v. 8taU, 26 Wend. 192;
Com. y. Filler, 12 Serg. & B. 277. While the mei^ts of matters duly passed
on within tiie scope of proper authority cannot be Inquired into, (Com. v.
Freedlty's Ex'rs, 21 Pa. St. 33; Porter v. School Directors, 18 Pa. 8t. 144;
Com. V. Knox, 1 Penny. ^78;. Blackmore v. Allegheny Co., 51 Pa. ISt. 160;
Spongier v. Com., 8 Watts, 57; Com. v. Johnson, 6 Pa. St. 186; Com. v.
Railroad Co., 2 Pears. 389; Filler v. Com., 31 Pa. St. 406; Canal Co. v.
Com., 50 Pa. St. 399; Iron Co. v. Com., 55 Pa. St. 448, 1 Pears. 364; Siggins
V. Com., 85 Pa. St. 278, and cases cited,) and while an individual is bound
by acquiescence, and by failure to appeal, {Broum v. White Beer Tp., 27 Pa.
St. 109; Dyei- v. Covington Tp., 28 Pa. St. 186,) the commonwealth is not
bound by the unauthorized acts of its agents, nor by acquiescence, (Bigelow,*

Online LibraryWest Publishing CompanyAtlantic reporter → online text (page 95 of 158)