
    [Pittsburg,
    September 28, 1827.]
    LUFFBOROUGH against PARKER and another.
    IN ERROR.
    Under the act of the 3d of April, 1804, for the sale of unseated lands for taxes, it is necessary, in order to make the newspapers containing the com- . missioners’ notice evidence, that with each newspaper in which the notice is published, there should be filed the affidavit of the printer of such paper.
    
      Query, If the land be assessed in the name of Nathan L., whether a sale of it for taxes in the name of Nathaniel £., is valid.
    It is no objection to a juror to serve in an ejectment for lands sold for taxes, that he was a purchaser of other lands sold at a subsequent period for taxes. What documents are admissible in evidence to support a sale of unseated lands for taxes, under the act of the 3d of April, 1804.
    Error to the Court of Common Pleas of Mercer county, in which the plaintiff in error, Nathan Luffborough, was plaintiff below, and William Parker and Joseph Junkin, the defendants.
    Ejectment for donation lot, No. 927, Fifth District, containing two hundred acres.
    At the trial John Forquer, .one of the jurors, was challenged by the plaintiff, on the ground of his having stated that he was a purchaser of a lot sold for taxes in the year 1820, it being admitted that.the title .under which the defendants claimed, was a deed made to one of the defendants, Joseph Junkin, as purchaser at a sale made by Ezekiel Sankey, Esq., sheriff of Mercer county, for arrearages of county and road-taxes, on the 15th day of June, A. D. 1809.
    The court overruled the objection, inasmuch as the juror was not a purchaser of any lands sold, by the said sheriff for arrearages of taxes in the year aforesaid, and directed Forquer to be sworn as a juror. The plaintiff excepted.
    ' The plaintiff gave in evidence, a patent from the commonwealth of Pennsylvania to John M‘Donald, for a tract of donation land, No. 927, in the fifth donation district, containing two hundred acres, a conveyance by M‘Donald to Abraham Witmire, and a conveyance by Witmire to Nathan Luffborough.
    
    The defendants offered in evidence, a paper dated the 29th of September, 1804, purporting to be the return of the election of assessor and assistant assessors, for Sandy Creek township, in the said county; and by Hugh Bingham, clerk to the commissioners of Mercer county, proved that this said paper was found among the election returns for that year in the said commissioners’ office. To this paper being received in evidence the plaintiff objected; it not being proved by the constable and judges who signed the said paper, their absence not accounted for, nor their handwriting proved. The court overruled the objection, and received the said paper in evidence. The plaintiff excepted.
    The defendants further offered in evidence three papers, purporting to be the oaths of Adam Carnahan, assessor, and John Montgomery, and Ross Byers, assistant assessors of the said township, made on the 21st of December, 1804, before Thomas Robb, and proved by Mr. Bingham, clerk to the said commissioners, that the said papers were found among the oaths of the assessors for the said year, in the said commissioners’ office. To these papers the plaintiff objected, inasmuch as they were not in conformity with the act of assembly, and were not made and taken within twenty days from the date of the election. The court overruled the objection; and the plaintiff excepted.
    The defendants produced Adam Carnahan, the assessor of the said township, as a witness; who testified, that he did not know whether he had a warrant or not; that his memory did not serve him as to when he was assessor, but,, by seeing his name to the return on the duplicate; that the practice was not to go on the unseated lands at that day, and that unseated lands were not assessed by going on the land; that they did not go on the ground, but assessed the unseated land, “in the lump;” that he had made search among his papers and could not find a warrant directed to him from the said commissioners; and that no part of the assessment was in his handwriting, save his own name, nor did he know in whose handwriting it was. The defendants then produced John Chambers, as a witness, who stated that he was clerk to the said commissioners in December, 1803, and continued tiieir clerk until October, 1805, that a warrant was issued by the said commissioners to the assessor of Sandy Creek township for the year 1805; and, that he gave it to Adam Carnahan, the assessor, and that it was not the practice of the assessors to return the warrants issued to them by the commissioners. The defendants then offered in evidence a paper, purporting to be the return of the triennial assessment of Sandy Creek township for the year 1805. To which paper the plaintiff objected; and the court deeided that the said paper should be given in evidence. The plaintiff excepted.
    The defendants gave in evidence, the minutes of the said commissioners of the said county of the 18th day of March, 1807, containing the appointment of Isaac Halloway, as assessor for the said township for the year 1807; and, also, gave in evidence the oath taken by the said Isaac Halloway, as assessor, for the said year, and also produced Isaac Halloway, as a witness, who stated that he had a warrant directed to him as assessor of the said township for the said year by the commissioners, and that he did not return the warrant to the commissioners; that he had searched for it diligently, but could not find it; that in making his assessment he did not go on the unseated lands, but took them from the list furnished to him by the commissioners. The defendants offered in evidence a paper, purporting.to be a return of the assessment of the unseated lands for the year 1807; and proved by Mr. Bingham, clerk to the commissioners, that the said paper was found in the commissioners’ office, among the returns of the assessments for the said year, and proved by the said Halloway, to be his handwriting: to which paper the plaintiff objected, and the court decided that the paper should be given in evidence; to which decision the plaintiff excepted.
    The defendants offered in evidence newspapers, purporting to be the General Advertiser, (Aurora,) a daily newspaper, printed in the city of Philadelphia, commencing with No. 5490, dated Philadelphia, the 8th of September, 1808, and ending with No. 5518, dated the 11th of October, 1S08, also twenty-four newspapers, purporting to be the United States Gazette, a daily paper, published in the city of Philadelphia, commencing with No. 4975, dated the 9th of September, 1808, and ending with No. 5000, dated the 8th of October, 1808, also twenty-six newspapers,' purporting to be Fouls on’s American Daily Advertiser, published in the city of Philadelphia, commencing with No. 9910, dated the 9th of September, 1808, and ending with No. 9941, (Nos. 9927, 9933, 9934, and 9935, not, however, being among the papers offered,) the said several newspapers, purporting to contain a notice from the commissioners of Mercer county, to the owners of unseated lands on which taxes were due for the year 1807; and the defendants produced William S. Rankin, Esq., prothonotary of the said court, who stated that the said newspapers were found by him in the said office, among the.newspapers and other papers in the said office, relative to the sheriff and treasurer’s sales of unseated lands for taxes. The plaintiff objected to these newspapers, as not being marked filed, not accompanied with the depositions of the respective printers, and there being no evidence of the aforesaid notice having been published in the usual numbers printed of the said papers, nor any evidence of their being published at the times or at the place that they purported to be published. The court overruled the objection, and decided that the newspapers should be given and received in evidence; to which decision the plaintiff excepted.
    The defendants further offered in evidence a newspaper, the Crawford Messenger, dated the 22d of September, 1808, published in Meadville, containing the notice of the said commissioners to the owners of unseated ian,ds, on which taxes were due for the year 1807; and proved by the prothonotary of the said court, to be found among the other papers in the said office; and, they also produced Thomas Atkinson, the printer of the said paper, who stated that the said paper, containing the said notice, was printed by him at the time the said paper was dated; and that the said notice was published in the usual number of papers printed by him; and that he had sent to the commissioners an affidavit with the said papers; he also produced a book, the third volume of the Crawford Messenger, containing No. 165, of the said paper, dated the 8th of September, 1808, and Nos. 166, 167, containing the aforesaid notice, which he stated was printed by him at the time they were dated, and that the said notice was published in the usual number of papers printed by him. The plaintiff, by his counsel, did then and there admit that there was, at that time, no newspaper published in Mercer county; and that the said newspaper was the one nearest to the said county, which book, containing the said papers, was also offered in evidence. The plaintiff, however, objected to the said newspapers, dated the 22d of March, 1808, and the said book being received in evidence, the court decided that the said newspaper and book were evidence. The plaintiff excepted.
    And the defendants, before the said several newspapers were read in evidence to the jury, did further offer in evidence the oath of Robert W. Hutcheson, a clerk in the office of the United States Gazette, with the notice of the said commissioners to the owners of unseated lands, on which taxes were due for the year 1807, annexed, made on the 8th of October, 1808, before Clement Biddle, notary public, in the city of Philadelphia, proving that the said notice had been published in ,the said paper for four weeks, (Sundays excepted.) The plaintiff objected to the said deposition being received in evidence, and the court decided that the said affidavit should be received in evidence; to which decision the plaintiff excepted.
    The defendants offered in evidence a warrant, dated the 6th of May, 1809; issued by Ross Byers, David Courtney, and Joseph Shannon, commissioners of Mercer county, directed to Ezekiel Sankey, Esq., sheriff of the said county, commanding him to sell certain lands described in a schedule annexed thereto, but no schedule was annexed to the said warrant, nor any description of' the said lands contained in the said warrant; and, also, offered therewith a book, or list, indorsed “Unseated land — sheriff list — 1807:” and, also, offered a written advertisement, on which was indorsed the deposition of Ezekiel Sankey, sheriff of the said county; and then Mr. Bingham, clerk to the said commissioners, before sworn as a witness, stated that he found the warrant and list in the said commissioners’ office, among the duplicates and sale lists. Joseph Shannon, was also sworn as a witness, and stated that he was a commissioner at the time the warrant to the said sheriff was issued; that no schedule or list describing the unseated lands, on which taxes were due for the year 1807, was annexed to the said warrant, but that the commissioners directed their clerk to make out a list of unseated lands for the sheriff; thatJbim Stewart was then clerk for the commissioners, who is deceased; that the list is in the handwriting of the said John Stewart, and the advertisement in the handwriting of the said clerk, and that the book offered, or list, is the book, or list, made out by the said clerk for the sheriff; but whether it was, or was not, given to the sheriff, he could not tell. The prothonotary of the said court, stated that the advertisement was found by him in his office, among the other papers. Whereupon the plaintiff objected to the said warrant, the said book, or list, and the advertisement, being received in evidence, but the court overruled the said objection, and decided that the said warrant, book, or list, and advertisement, should be received in evidence: whereupon the plaintiff excepted.
    The defendants, by their counsel, further offered in evidence, a deed from Ezekiel Sankey, Esq., sheriff of Mercer county, to Joseph Junkin, for the lot No. 927, fifth donation district, containing two hundred acres, sold for county and road taxes for the year 1807, stated in the said deed to amount to three dollars and thirty-seven and a half cents, and costs stated in the said deed to amount to seven dollars and twelve and a half cents, dated the 24th of November, 1809. No evidence was given that any road tax was assessed, or due, on the said tract of land for the said year. They, also, offered in evidence a bond, gave by Joseph Junkin to the said sheriff, purporting to be for the surplus money of the sale of the said .tract of land, dated the 15th of June, 1809, not marked filed: and also proved, by William S. Rankin, Esq., prothonotary of the said court, that he founfl the said bond tied up with the bundle of bonds in the said office, in, the box; it did not appear on the said bundles at what time the bundles were deposited or filed in the said office. Whereupon the plaintiff objected to the said deed and bond being received and given in evidence, and the court overruled the said objection, and decided that the said deed and bond should be given in evidence. To which decision the plaintiff excepted.
    Third point made by the plaintiff’s cotinsel, on which the court was requested to charge the jury.
    3. Whether a variance in the name in which the land is assessed from the one in which it is advertised and sold, is not fatal, as it ceases to be notice to the owner, of taxes being due, which is the object of the law in directing notice to be given in the newspapers, &c.
    Extract from the charge of the court to the jury: — ■
    “ This bond for the surplus money, was brought by the prothonotary from his office, as an office paper, and is to be considered as being filed, though it is not so .indorsed. But, when filed, does not appear. If not filed till after suit brought, it would be illegal; it would be a fraud in slipping it into the office at an after day. The plaintiff has not proved such fraud, and the jury is not to presume it without proof.
    
      “ The third point filed. — The majority of the court say, that the variance between the assessment and sale, &c., of Nathan and Nathaniel, is not fatal; but is cured by the fifth section of the act of the 3d of Jipril, 1804.”
    
      Errors assigned:—
    1. The court erred in overruling the plaintiff’s challenge to John Forquer, as a juror in this case.
    
      2. The court erred in receiving in evidence the paper, purporting to be a return of the election of assessor and assistant assessors of Sandy Creek township, dated the 29th of September, 1804, and the oaths of the assessor and assistant assessors.
    3. The court erred in receiving in evidence, the paper purporting to be the return of the triennial assessment of Sandy Creek township, for the year 1S05, and the paper purporting to be the return of the assessors of the said township, for the year 1S07.
    4. The court erred in receiving in evidence the newspapers, stated in the bill of exceptions, and the deposition of Robert W. Hutcheson.
    
    
      5. The court erred in receiving in evidence the warrant from the commissioners of Mercer county, to Fsekiel Sankey, sheriff of Mercer county, dated the 6th of May, 1809, and the list, indorsed “Unseated lands — sheriff list — -1807:” and the advertisement, and deposition of Ezekiel Sankey.
    
    
      6. The court erred in receiving in evidence the deed from Ezekiel Sankey, sheriff of Mercer county, to Joseph Junkin, for lot No. 937, in the fifth donation district, and the bond gave by Joseph Junkin to the said sheriff, purporting to be for the surplus money.
    To the charge of the court—
    1. The court erred in stating to the jury that the bond for the surplus money, should be considered as filed, though not so indorsed.
    2. The court erred, in their charge to the jury, on the third point made by the plaintiff’s counsel.
    
      Bredin, for the plaintiff in error.
    
      First Error. — Rejection of plaintiff’s challenge of John Forquer, a juryman. The reason assigned was, that he purchased in 1820, land sold for taxes under the act of 1815. This land was sold under the act of 1804: and by that act, as well as the act of 1815, the jury, in certain cases, may value the improvements made by the purchaser. ,
    
      Second Error. — The return of the election of assessor ought to have been proved by the oath of the person making the return. We say too, that the oath of the assessor was not evidence, because it does not appear to have been taken within twenty days after the election.
    
      Third Error. — The assessment was void, because it was proved by the defendants themselves, that the assessor did not go on the ground. Their duty is to value the land at what it will sell for in cash, which cannot be done without examining the land. He referred to the act of the 11th of April, 1799, section 8, 3d of April, 1804, section 1, 2.
    
      
      Fourth Error. — The newspapers were not evidence. There ought to have been the affidavit of one of the printers — here the affidavit was by the printer’s clerk, before a notary public. The proof was neither according to the act of. assembly, nor the common law.
    The notary had no power to take this oath — if false, it was not perjury. Act of 5th of March, 1791, Purg. Dig. 102. The affidavit of the clerk, did not say that the advertisement was published in the usual number of papers, which the act of 1804 requires.
    
      Fifth Error. — In receiving iti evidence the warrant from the commissioners of Mercer county, to Ezekiel Sankey, sheriff. It was not evidence, because it did not contain a description of the lands to be sold, either in the body of it, or by references to a schedule annexed.
    
    We objected also, to the sheriff’s advertisement, because not set up at the court house, (as directed by the act of 1804.)
    
      Sixth Error. — In receiving in evidence the deed from E. Sankey to Joseph Junkin, for lot No. 927, in' the fifth district of donation land, and the land by the said Junkin, to the sheriff, for the surplus money.
    All the requisites of the law must be complied with. Sutton v. Nelson, 10 Serg, & Rawle, 238. Wistar v. Kammerer, 2 Yeates, 100.
    
      Charge of the Court.
    
    
      First Error. — After what has fallen from the court, I relinquish this point.
    2. Error in charging, that the land assessed in the name of Nathan, and advertised and sold as the land of Nathaniel Luffborough was a good sale, the. defect being cured by the 5th section of the act of 3d of April, 1804. 2 Yeates, 330.
    
      Banks and Foster, for the defendants in error.
    On the intimation of the court, the counsel confined their argument to the fourth bill of exceptions, and the second error assigned in the charge of the court.
    
      Fourth Bill of Exceptions. — We say, the intent of the act was, that the affidavit of one printer, was sufficient evidence of the publication in all the three papers.
    
    
      Second Error in the charge of the Court.' — 'Land advertised and sold in the wrong name.
    The 5th section of the act of the 3d of April, 1804, cures an error, in taxing or selling in wrong names.
    
      Moore, in reply, for the plaintiff in error.
    We took our exceptions in this case, not in a litigious spirit, but with a view of having the law settled -in this which was a leading case.
    
      First Bill of Exceptions is — Challenge of a Juror. — I shall hot argue this, after the opinion expressed by the court.
    
      
      Second Bill of Exceptions.- — I leave this on the argument of my colleague.
    
      Third Bill of Exceptions. — -An assessor cannot value land without going on it, and he is furnished with a draft of each tract, that he may go on it. I do not say he should go over the whole of each tract; but he should go to it, and take at least a cursory view; by which he may determine, whether it is of the quality of the adjoining lands. The donation lands are all numbered at the north-west corner.
    
      Fourth Bill of Exceptions. — Evidence of the Philadelphia newspapers. We have three objections to Robert W. Hutcheson’s affidavit. — 1. He was not a printer, but the clerk. — 2. It was taken before a notary. — 3. It does not say, that the advertisement was published in the usual number of papers.
    We say, moreover, that the newspapers were not evidence, because the affidavit of one printer of each paper was not produced.
    We say, too, that Jltkinson, the printer of the Crawford newspaper, was not a legal witness. His affidavit ought to have been filed according to the act of assembly.
    
      Fifth Bill of Exceptions. — The warrant of the commissioners does not describe the land, nor was the schedule referred to, annexed to the warrant. A warrant referring to a schedule, not proved to have ever existed, is bad. 8 Serg. & Rawle, 344.
    In this bill is also included the objection, that no advertisement was proved to have been put up by the sheriff, at the court house door.
    
      Sixth Bill of Exceptions. — Two dollars and twelve and a-half cents was due for county tax, and one dollar and thirty-seven and a-half cents, road tax. The sheriff advertised and sold for both these taxes, though there was no proof of any road tax being due; no evidence of any assessment of road tax. The bond for surplus was, therefore, taken for one dollar and thirty-seven and a-half cents too little, the one dollar and thirty-seven and a-half cents road tax being deducted from the price for which the land was sold. A complete chain of title must be made out by the purchaser under a sale for taxes. Birch v. Fisher, 13 Serg. & Rawle, 208. The commissioners had no right to sell for a tax which was not due.
    
      Second Error in the charge of the Court. — Advertisement of sale of Nathaniel Luffborough’s land, is no notice to Nathan Luffborough.
    
    We request the court to give an opinion on each point, and file it.
   The opinion of the court was delivered by

Gibson, C. J.

None of the errors merit particular consideration but two; the others relating to official documents found in their place, or to evidence incontestibly competent. My remarks, therefore, shall be confined to these two.

To show that notice of the sale under which the'plaintiff claims had been given, the counsel produced the Crawford Messenger, duly authenticated, and containing the advertisement which the law requires. He then produced three daily newspapers, published in Philadelphia, and containing the same • advertisement, which were found in the prothonotary’s office; but without an affidavit by any of the printers, that the advertisement had been published in the usual number of his papers. These were offered to the jury, and admitted en masse. Following this, supplementary proof was made by the affidavit of a clerk of one of the printers, which was sworn to before a notary, and which, as well for that reason, as for not having been filed along with the paper to which the clerk referred, was incontestibly incompetent. But were this otherwise, the principal question would still remain, because as to two of the newspapers, there was no auxiliary evidence whatever, except what may be supposed to arise from their having been found in the proper office. The question, therefore, is whether a newspaper not authenticated by the affidavit of the person who has printed it, is competent evidence.

By the 3d section of the act of the 3d of April, 1804, it is provided that, “ It shall be the duty of the said county commissioners, to file in the prothonotary’s office, one at least of each of the newspapers in which they have published their general notice; which newspaper so filed, together with the affidavit of at least one of the printers that the aforesaid notice was published in the usual number of his papers,” shall be taken for sufficient evidence of notice. Do these words one of the printers, ” relate to one of all the printers who shall have published the notice; or to one of the printers of each newspaper, where any of the newspapers shall have been published by printers in partnership? The latter is my construction.

Of what was the legislature speaking, when it used the words in question? Not of the newspapers collectively, but of each of them respectively. The natural and obvious mode of construction, is to refer the words to the subject matter of the clause, each of the newspapapers” in which the notice shall have been published. This construction is further recommended by its avoiding the imputation of want of reason and good sense, with which a contrary one would charge the legislature. In directing notice to be given in four newspapers, it cannot be supposed the legislature was indifferent to its publication in more than one; if so, we must believe the intention was to require proof of publication in more than one; and that proof of the fact should reasonably and naturally follow from the evidence. But how proof of publication in a newspaper in Crawford county, should be taken for proof of publication in three newspapers in Philadelphia, is what I cannot understand. The legislature surely did not intend that the affidavit of any one but the printer' of the particular paper, should be proof of publication.

It is supposed, that as documents filed in the proper office, and produced by the proper officer, these newspapers are competent evidence at the common law. But it is only by force of the act of assembly that they can pretend to the character of documents; so that the question comes round to the point from which it started: are they such documents as the act requires? At the common law, a newspaper does not prove itself, evidence being always required that the copy produced is what it purports to be; not a particular thing fabricated, perhaps for a sinister purpose, but an individual copy among many published collectively. It is certain, the legislature thought that evidence, in addition to the supposed intrinsic evidence of the newspapers themselves, not only proper, but indispensable; and it was to provide for this, that the affidavit of the printer was declared to, be sufficient.

The other exception is, that although the land was assessed in the name of Nathan Luffborough, it was sold in the name of Nathaniel. At the common law, such a variance would be material; but in the 6th section of the act of 1804, it is declared, that sales of unseated land shall be valid and effectual, although the land may not have been taxed and sold in the name of the owner thereof.” Here it was taxed in the name of the owner, but sold in the name of another: and I cannot perceive that the case is worse for the purchaser, than if it had been both taxed and sold in the name of a stranger. I am of opinion, that the judgment be reversed only on the preceding point.

Duncan, J.

delivered an opinion concurring on the first point, but dissented on the second. Rogers, J., and Huston. J. were for affirming on both points; and Tod, J., concurred with Gibson, C. J.: so that the judgment was reversed on the first point.

Judgment reversed.  