The opinion of the court was delivered, July 7th 1870, by
Read, J. —This case has already been before this court and is reported in 6 P. F. Smith 23. The error upon which the judgment was reversed, was that the question of agency was not submitted distinctly to the jury to be passed upon by them. “For this reason,” say the court, “and for this reason alone, the judgment must be reversed. There is no error in any other part of the record.”
In discussing the question of agency the first point was, were the alleged agents legally authorized to act for the borough authorities.
The third of the plaintiff’s points was in these words : “ That the burgess and town council of a borough are ex-officio agents of the corporation: that they may act as a body corporate, and they may agree that each may act for and represent the whole in any particular transaction, and if the town council did so agree among themselves with regard to the enlisting of men as testified by Thomas McClure and others, their authority was ample, and both the borough and the defendants were bound by the transaction in the putting in of the men.”
The court said: “ This is answered in the affirmative, provided that was a general authority applicable to all drafts, and not confined to the particular one pending when the agreement was made.”
The law as stated in this point and answer was affirmed by this court in substance in 6 P. F. Smith, and we see no reason to doubt its correctness.
Nor do we see any error in that part of the answer to the fourth and fifth points of the defendants’. “ The authority, if any, which the defendants had to enlist the men in question was not derived from any conversation proved by McClure or any other witness, but from the authority conferred by the Act of Assembly of March 16th 1864, conferring power on boroughs to fill quotas, the resolution of the burgess and council to do it, and the general *392agency of said officers by virtue .of their office to execute the decrees and discharge the duties of the borough under the supposed exigencies of the case.”
This language is explained by the succeeding part of the same answer: “ The conversations referred to are only evidence of how the defendants may have regarded their own acts or supposed it would be regarded by their associates. If they knew it would be approved by the other councilmen it would furnish a strong motive for its performance as agents of the borough. But if they were not assured of its ratification or knew it would not be, it would furnish a strong reason for believing that they hired the men on their own responsibility, not caring whether the act was ratified or not.”
Leffert Hart was burgess, and L. S. Wright one of the town council of the borough of Girard; a draft was impending, and there were seven men who were willing to volunteer for one year for a bounty of $300, and, being urged by several citizens, the said Hart and Wright on the 13th August 1864 engaged the men, arranged to pay them the stipulated sum and started with them to Erie, and had them regularly enlisted. There were separate recruiting papers for each man. The papers were made to “ Girard,” one to “ Girardtown” and the rest four or five to “ Girard Borough.”
On the 7th September 1864, the defendants sold these seven men for $3500 to Girard township and they were credited to it.
On the 20th July 1864 James Webster and Asa Battles were appointed recruiting agents to go South and procure volunteers to fill the quota of Girard borough, who on the 6th September telegraphed Hart from Vicksburg that they had succeeded in raising men enough to fill the quota, who were enlisted for three years, which men (seventeen in number) were afterwards duly and properly credited so that the quota of the borough was filled and three men to spare.
During the uncertainty as to success, in recruiting in the south, outside of our state, which continued during nearly seven weeks, these seven men were enlisted in Pennsylvania, and the question is, whether they were so enlisted by the defendants as the agents of the borough, or in their individual capacities.
The learned judge in his charge put this question to the jury in the following clear and pertinent language:—
“Now it is for you to determine from the evidence whether the defendants were the agents of the plaintiffs, and acted as such in the enlistment of these seven men, or whether it was done by them individually, and on their own personal responsibility.” The jury have decided this in favor of the plaintiffs by their verdict.
Judgment affirmed.
Thompson, C. J., dissented.