text:
    John Adam Becker, Appellant, v. The Lebanon and Myerstown Street Railway Company.

      Practice, equity — Motion to dismiss for want of prosecution is obsolete.

    With the abolition of most of the cumbrous machinery of equity practice and the adoption of rules simplifying it, the reason for the motion to dismiss for want of prosecution has largely, if not wholly, disappeared. The defendant is no longer obliged to wait the plaintiff’s motion at any stage of the proceedings but may either take or require the plaintiff to take any step necessary to expedite the cause. The motion to dismiss for want of prosecution having been superseded by more effective remedies, has practically become obsolete.

      Practice, equity — Default in proceedings, how cured.

    Even were a plaintiff in default, such default is made good by a motion to hear before a motion to dismiss, and under the strictest practice a motion to hear would cure such default if made after a motion to dismiss, but before hearing of the latter motion. .

      Practice, equity — Motion to dismiss for want of prosecution.

    A motion to dismiss for want of prosecution is improvidently allowed, where a motion to hear had been made by the plaintiff prior to the motion to dismiss. The plaintiff could be in no default while the motion to hear was under consideration by the court.
    Argued March. 11,1897.
    Appeal, No. 52, March T., 1897, by plaintiff, from decree of C. P. Lebanon Co., No. 7, Equity Docket, 1893, dismissing bill in equity for want of prosecution.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Motion to dismiss bill filed for want of prosecution. Before Ehrgood, P. J.
    The bill was filed June 21, 1893. On July 1, defendant appeared, delaying answer, howevei, until ruled, and filed answer October 6. The plaintiff delayed replication, the defendant acquiescing by omitting to rule him to reply. On the first Monday of March, 1894, the amendments to the equity rules suspended proceedings until the adoption by the court of an order for the preparation of equity trial and argument lists. Such order was not made until August 29, 1895, when the court adopted special equity rule No. 3, which provided that “ the court shall, at the instance of either party, upon reasonable notice to the other party, not exceeding thirty days, hear the case.” January 6,1896, a replication was filed. March 16, 1896, plaintiff moved the court to hear the case, and to fix the. time and place for so doing, and to make the necessary orders for such hearing. March 30, 1896, the defendant moved to dismiss the bill for want of prosecution; both motions being held under consideration until December following. On December 9, 1896, an order was made dismissing the bill for want of prosecution, and December 10, the court indorsed on the motion to hear a direction for filing as of March 16, 1896, and it was accordingly filed as of that date.
    It appears that no notice was given to the plaintiff of the motion to dismiss, but he was present and heard under protest.

      April 12, 1897:

      Errors assigned, were (1) sustaining motion to dismiss; (2, 3) dismissing bill.

      Bassler Boyer, for appellant.

      O. K. Killing er, with him S. P. Light, for appellee.
   Opinion by

Smith, J.,

Though, from the pleadings, the plaintiff’s complaint appears well founded, this appeal does not directly involve a consideration of its merits, and on this point we need only say that it cannot be dismissed on bill and answer. The only question here is whether the order dismissing the bill for want of. prosecution can be sustained. This must depend on the situation of the cause when the order was made.

Our equity rules contain no specific provision for the dismissal of a bill for want of prosecution. . The practice on this point must therefore be .regulated by the general rules in relation to motions and orders, with such analogies as may be found in the practice of the English court of chancery on the 1st of July, 1865.

The contention of the appellant is (1) That he was in no default when the order was made; and (2) That the order was irregular in having been made without notice.

Under the earlier practice in chancery, if the plaintiff did not proceed with the steps necessary on his part to bring the cause to a hearing, the defendant’s only remedy was by motion to dismiss the bill for want of prosecution. The proceedings were so elaborate that neglect by the plaintiff might unduly delay the cause to the prejudice of the defendant, since the latter was obliged to await the successive movements of the plaintiff before moving in turn. Thus, it'was the plaintiff’s duty, after demurrer or plea, to set the cause down for argument or take issue on the plea; after answer to the bill and interrogatories, and the same held sufficient, to set the cause down for hearing on bill and answer, to reply, or to amend should the answers make amendment necessary ;■ after replication, to serve a subpcena to rejoin, to obtain, when necessary, a commission to examine witnesses, have it executed and returned, to have rules to produce witnesses, to pass publication, to set down the cause for hearing, and serve a subpoena to hear judgment. The several periods limited for the performance of these duties were fixed by general orders, and on default by the plaintiff the defendant might move to dismiss the bill for want of prosecution. If, however, after notice of this motion, the plaintiff made good the default or undertook to speed the cause by talcing the step next required, or if upon hearing he satisfied the court that he had used due diligence and was reasonably entitled to further time, the motion was dismissed.

With the abolition of most of this cumbrous machinery, and the adoption of rules simplifying the practice, the reason for the motion to dismiss for want of prosecution has largely if not wholly disappeared. The defendant is no longer obliged to wait the plaintiff’s motion at any stage of the proceedings, but may either take or require the plaintiff to take any step necessary to expedite the cause. The motion to dismiss for want of prosecution, having been superseded by more effective remedies, has practically become obsolete. “ By the English practice, the motion to dismiss was merely for the purpose of expediting the proceedings of the complainant; and there is no ground for such an application on the part of the defendant where either party is at liberty to proceed in the cause: ” Whitney v. Mayor, 1 Paige, 548.

Granting, however, that this motion may still be employed, no such default by the plaintiff is here shown as to justify its allowance. The bill was filed June 21, 1898. July 1, the defendant appeared; delaying answer, however, until ruled, and filing answer October 6. The plaintiff delayed replication, the defendant acquiescing by omitting to rule him to reply. On the first Monday of March, 1894, the amendments to the equity rules suspended proceedings until the adoption by the court of an order for the preparation of equity trial and argument lists. Such order was not made until August 29,1895, when the court adopted “ Special Equity Rule No. 3 ; ” this provided that “the court shall, at the instance of either party, upon reasonable notice to the other party, not exceeding thirty days, hear the case.” January 6, 1896, a replication was filed. March 16, 1896, the plaintiff moved the court “ to hear the case, and to fix the time and place for so doing, and to make the necessary orders for such hearing.” March 30, 1896, the defendant moved to dismiss the bill for want of prosecution. The court held both motions under consideration until December following. December 9, an order was made dismissing the bill for want of prosecution ; and December 10, the court indorsed on the motion to hear a direction for filing as of March 16, 1896, and it was accordingly filed as of that date.

It appears that no notice was given the plaintiff of the motion to dismiss. This was a disregard of the long settled practice. By the 17th of Lord Bacon’s Ordinances, upon the plaintiff’s default for one term after answer the bill might be dismissed by the defendant of course without motion; but after replication it could not be dismissed without motion and notice. Previous to the General Orders of 1828 and 1831, “ there were few applications which more uselessly occupied the attention of the court, and were more variously decided, than motions to restore a cause dismissed for want of prosecution without notice: ” 1 Smith’s Chancery Practice, 332. By those orders, no bill could be dismissed at any stage of the proceedings, without notice; and through all subsequent changes of the English practice this provision has been retained.. . Our own equity rules are to the same effect. By Rule XIII., sec. 73, “all motions for rules or orders, and other proceedings, which are not grantable of course, or without notice, shall be made on application to the court or a law judge at chambers, and entered in the equity docket, and shall be heard at such time thereafter as shall be assigned therefor by the court or judge at the time of the making the application ; and if the adverse party or his solicitor, after notice thereof, shall not then appear, or shall not show good cause against the same, the motion may be heard by any law judge of the court ex parte, and granted as if not objected to, or refused, in his discretion.” As nothing that operates as a final order is grantable of course, a motion to dismiss falls within the provisions of this section, and an order of dismissal without notice is clearly irregular. It appears, however, that in the present case the court directed and heard argument on the motion to dismiss, though under protest on the part of the plaintiff as contrary to the rules of practice. In the absence of a rule fixing the character of the notice, this direction by the court may perhaps be construed as notice, and the plaintiff by proceeding to argument waived other notice. The lack of notice complained of was thus cured.

On the record, as it stood at the time of hearing, the plaintiff was in no default. Even had his delay in moving to hear the cause been a default, it was made good by that motion before the motion to dismiss; and had the latter been first made, the default, under the practice of the strictest period, would have been made good by a motion to hear before a hearing on the motion to dismiss. Conceding that the plaintiff was bound to speed the cause when the defendant had equal power to move for that purpose, the motion to hear was all that was incumbent on him. He could be in no default while this motion was under consideration by the court. Aside from this, reasons for holding the cause in abeyance are suggested in the history of the case, which may have been sufficient to excuse any apparent default. But as no default is shown, the plaintiff cannot be thus summarily turned out of court.

The order dismissing the bill is reversed, the bill is reinstated, and it is ordered that the court below proceed in due course to hear the cause upon the motion presented March 16, 1896, and filed as of that date.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    Edward M. Smith v. Chester W. Harvey, Appellant.

      Evidence — Buies as to admission of parol evidence to vary contract.

    Parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation though it may vary or change the terms of the writing. The existence oí a contemporaneous parol agreement under the influence of which a contract is signed, may always be shown when the enforcement of the paper is attempted in disregard of the parol stipulation.

      Evidence — Parol evidence to vary lorilten contract.

    While a written agreement cannot be set aside on the testimony of one party when contradicted by the testimony of the other party, yet where there, are corroborating circumstances, or circumstances from which inferences may be drawn corroborative of the contemporaneous parol agreement, the question should be submitted to the jury.

      Question for jury — Parol evidence to vary contract.

    The question is for the jury where, in an action on a lease, the defendant’s evidence as to a contemporaneous parol agreement, which had not been observed by the lessor, is clear and positive, and which is corroborated in some of its leading aspects.

      Argued Oct. 13, 1896.
    Appeal, No. 76, Nov. T., 1896, by
    defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1894, No. 195, on verdict for plaintiff.
    Before Rice, P. J., Willard, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Assumpsit to recover rent.
    The action was to recover the sum of 1208.33, with interest, being the amount of five months’ rent, reserved by a lease of premises in Delaware county.
    The defense was that after defendant moved into the house the water supply was found insufficient and defendant’s testimony, which was contradicted by the plaintiff, tended to show that at the time the lease was prepared defendant refused to sign it on the ground that there was no provision as to the certainty of the water supply, upon which plaintiff’s agent said: “We will consider it the same as though it were in there, and I promise you that any shortage of water will be remedied at once.” The surety had also refused to sign it until this agreement in substance was repeated'to him. Plaintiff did, upon complaint, procure a new wind mill, but even after that there was not a sufficient supply .of water.
    The facts as to the sufficiency of water and the conversation which took place at the time of the lease more fully appear in the opinion of the court.
    Verdict and judgment for plaintiff for $225.90. Defendant appealed.

      Errors assigned: The several assignments of error raise but one question: Was the testimony in support of the alleged parol contract for the supply of water on the demised premises sufficient to require its submission to the jury ?

      Lewis L>. Vail, for appellant.
    — A verbal promise by one of the parties at the making of a written contract, if it was used to obtain the execution of the writing, may be given in evidence: Graver v. Scott, 80 Pa. 88; Coal Co. v. McShain, 75 Pa. 238; Johnson v. Blair, 126 Pa. 426; Ferguson v. Rafferty, 128 Pa. 337.
    While the evidence to contradict a written instrument must be clear, precise and indubitable, the rule does not require that there must be no opposing testimony: Glass Co. v. Storms. 125 Pa. 268; Walker v. France, 112 Pa. 203.
    April 12, 1897:
    The evidence of members of the same 'firm or of joint parties having a community of interest are treated as that of two different persons: Pyroleum Co. v. Hardware Co., 169 Pa. 440.
    Where the landlord has agreed to repair the demised premises and does not do so, the tenant jmany abandon the premises or rescind the contract, or deduct the damages from the rent. Prescott v. Otterstater, 85 Pa. 534; Bissell v. Lloyd, 100 Ill. 214; Kiernan v. Germain, 61 Miss. 498.

      A. Leivis Smith, for appellee.
    — It does not appear from the testimony that defendant would not have signed the lease without this alleged promise of plaintiff’s agent, except upon the defendant’s own assertion to that effect. This is clearly not competent proof. Motive cannot be proved in that way: Thomas v. Loose, 114 Pa. 35.
    The evidence relied upon to vary the written contract is not clear, precise and indubitable as required by Irvin v. Irvin, 142 Pa. 271; Wodock v. Robinson, 148 Pa. 503.
    The remedy of the tenant in this case is not to withhold the rent, but only the actual damage sustained, and that he must prove: Wood v. Sharpless, 174 Pa. 588; Prescott v. Otterstatter, 85 Pa. 534; Cosgrave v. Hammill, 173 Pa. 207.
    This case is very similar to Eberle v. Bonafon, 17 W. N. C. 335.
   Opinion by

Smith, J.,

The several assignments of error in this case raise but one question: Was the testimony in support of the alleged parol contract for the supply of water on the demised premises sufficient to require its submission to the jury ?

This suit was brought to recover rent for a tenement demised to the appellant, and which he alleges the subtenant was obliged to vacate during the term, because of the insufficiency of the water supply. On the trial in the court below the defendant and other witnesses testified that there was not enough water on the premises for ordinary household purposes, and the defendant contended that the plaintiff’s agent agreed verbally, at the time of the execution of the lease, to furnish sufficient water during the term. The court below ruled that there was not sufficient evidence to establish this alleged agreement, and directed the jury to render a verdict for the plaintiff for the whole amount of his claim.

The defendant testified as to this alleged verbal agreement as follows : “ In looking it [the lease] over, I discovered that nothing was said about the water supply, and the lease was to be conditional upon our having plenty of water, and I objected to signing it, I took it up to Dr. Palen, and he objected, and Mr. Shaffner [the plaintiff's authorized agent] said: ‘We will consider it the same as though it was in there, and I promise you that any shortage of water will be remedied at once.’ Under the supposition that we were dealing with honest gentlemen, and that it was the same as though written in the lease, I signed it, and I would have refused to have signed it otherwise.” Question: “Did you sign it under that agreement?” Answer: “Yes, sir.” Question: “You signed-it upon that statement?” Answer: “Yes, sir.” Doctor Palen, who signed the lease as surety for the lessee, testifies as to this parol stipulation as follows: “ I went down to sign the lease, and I said to Dr. Plarvey [in presence of Mr. Shaffner] ‘Is there nothing in about the water?’ He said ‘No, but they say it is all right.’ I said to Mr. Shaffner, ‘Was there anything the matter with the water? ’ and I did not wish to sign the lease unless that would be all right; and he looked at me and -said: ‘We are all honorable men, and if there is any lack of water it shall be remedied at once.’ And under these circumstances we signed the lease.”

The testimony of Shaffner is in denial of the contemporaneous parol agreement alleged by the defendant. On the other hand it will be seen that, as to the existence of the parol agreement, the testimony of the defendant was clear and positive. He testifies that Shaffner said: “We will consider it the same as though it was in there, and I promise you that any shortage of water shall be remedied at once.” Dr. Palen testified that when he objected to signing the lease unless the water “would be all right,” Shaffner said, “We are all honorable men, and if there is any lack of water it shall be remedied at once.” It does not appear clearly whether the witnesses described these declarations as having been made at the same time or at different times; but as Harvey says “I took it up to Dr. Palen,” etc., while Palen says: “ I went clown to sign the lease,” etc., there would seem to have been two occasions, on one of which Shaffner is represented as making the promise to Harvey, and on the other to Palen. The statement imputed by Harvey to Shaffner, that “ we will consider it the same as if it was in there,” is omitted by Palen; which further indicates two conversations. An agreement, however, that the instrument shall be considered as if the omitted provisions, orally agreed on, had been inserted, the law will imply, if the parol agreement is sufficiently proved. The promise by Shaffner respecting what should be done in the premises, as testified to by Plarvey and Palen, was substantially the same to both. They unite in testifying that it was agreed by parol that “ any shortage of water,” in the one case, and “any lack of water,” in the other, “ shall be remedied at once,” as the inducement to the execution of the lease. There are also circumstances that may, perhaps, be regarded as corroborating the evidence for the defense on this point. It was shown by the plaintiff, in rebuttal, that during the occupancy of the premises by another tenant in 1892, there was plenty of water. Soon after the execution of the lease, however, the plaintiff erected a new windmill at an expense of $175. He subsequently made an examination as to the water supply; later he had water brought to the house from the works of the Springfield Water Company. Whether all this was done because of his recognition of the parol agreement, and to carry it into effect, and it was thus corroborative of the testimony of Harvey and Palen, or for some other reason, was a question proper for submission to the jury.

The testimony of the defendant, though contradicted by Shaffner, was, in connection with' the testimony of Palen, and the circumstances following the execution of the lease, sufficient to carry the case to the jury, and it was therefore error for the trial judge to direct a verdict for the plaintiff. While a written agreement cannot be set aside on the testimony of one party when contradicted by the testimony of the other party, yet where there are corroborating circumstances, or circumstances from which inferences may be drawn corroborative of the contemporaneous parol agreement, the question should be submitted to the jury: Stockwell v. Webster, 160 Pa. 478. And “ no principle is better settled than that parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation, though it may vary or change the terms of the writing: ” Building Association v. Hetzel, 103 Pa. 507. The existence of a contemporaneous parol agreement, under the influence of which a contract is signed, may always be shown when the enforcement of the paper is attempted in disregard of the parol stipulation: Coal & Iron Co. v. Willing, 180 Pa. 165. And this is so although such oral stipulation was not omitted from the writing through fraud, accident or mistake: Ferguson v. Rafferty, 128 Pa. 337.

The judgment is reversed, and a venire facias de novo is awarded.


author: Reeder, J.,

text:
    Richard H. Lanahan v. The Philadelphia and West Chester Turnpike Road Company, Appellant.

      Turnpikes — Repair of roads — Piling material on side of road — Negligence.
    It is tlie duty of a turnpike company to keep its road in a good, safe condition ; it has the right to deposit outside of the traveled track of the road materials used in making repairs providing -the materials are so arranged that they are not, from their unusual appearance, likely to frighten an ordinarily trained horse.

      Question for jury — Negligence of turnpike company — Repairs of road.

    The evidence was uncontradicted that certain planks used in repair of a road had been neatly piled over night on the side of a turnpike. Plaintiff’s horse took fright at them early next morning. Evidence that the planks had been disarranged somewhat but which did not connect such disarrangement with the defendant, is not sufficient to carry the case to the jury on the question of defendant’s negligence.
    Argued Nov. 17, 1896.
    Appeal, No. 44, Nov. T., 1896, by defendant, from judgment of C. P. Delaware Co., June T., 1895, No. 46, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for injuries to liorse and wagon. Before Clayton, P. J.
    The uncontradicted evidence showed that on the day before Christmas a contractor of the defendant company repaired a culvert which crosses the road just west of the place where the accident occurred, by removing six planks, each sixteen feet long and one foot wide, constituting the flooring of the south end of the culvert, and putting in new ones. These six old planks were piled by a workman in two piles of three planks each, lengthwise of the road, on the south side and entirely outside of the tracks or traveled portion of the road. He piled them straight, as previously directed, after which he reported what he had done to a manager of the company, who said he would attend to having them removed. The plaintiff drove past the same place on Christmas without noticing the planks, and, according to one of his witnesses, they remained in the position in which they had been placed when he, the witness, drove past about noon the same day. Between that time and the time of the accident next morning the top planks had become disarranged so that at one end two or three of them rested in the gutter alongside of the pile with the other ends projecting upwards at different angles. It did not appear from the testimony who disarranged them or that it was known to the turnpike company.
    On the day after Christmas the plaintiff was driving along the macadamized part of the road and upon approaching the locality he claims that his horse “ kind of scared ” at the ends of the planks sticking up and ran suddenly to the left, resulting in an upset in the ditch.
    The court left the question of defendant’s negligence to the jury.
    Verdict and judgment for plaintiff for $272.46. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      A. Lewis Smith, for appellant.
    — It is scarcely necessary to cite authorities to the principle that if facts have not been shown from which negligence reasonably may be inferred, the court may properly, and it is their duty to, direct a verdict for defendant. The burden of proving negligence is on the party alleging it, and a mere scintilla of evidence is not enough: Yingst v. Railway Co., 167 Pa. 438; Hazel v. Pass. Ry. Co., 132 Pa. 96; City v. Fisher, 111 Pa. 9.
    April 12, 1897:

      V. Gilpin Robinson, for appellee.
    — The court in submitting the case was guided by the law, as laid down by the Supreme Court in the case of Piollet v. Simmers, 106 Pa. 95, and Township v. Arnold, 119 Pa. 380.
    It is a question of fact for the jury whether the planks had properly been piled or whether they had not: Mallory v. Griffey, 85 Pa. 275; Horstick v. Dunkle, 145 Pa. 220, 233.
   Opinion by

Reeder, J.,

The facts in this case are practically undisputed. The only question is whether the testimony shows that the defendant might have been guilty of such negligence as to warrant the submission of that fact to the jury. The defendant’s duty was to keep its road in a good safe condition. It bad a right to deposit outside of the traveled track of the road material used in making repairs providing the materials were so arranged that they were not from their unusual appearance likely to frighten an ordinarily trained horse. It was the duty of the .company to repair this bridge. It had a right to pile the old plank taken from the bridge as they did at the side of the road. It had the right to leave it there on Christmas and until the morning after Christmas when this accident occurred. The only question for the jury, therefore, was whether the planks were so negligently piled or placed as to frighten a well trained road horse. This was the theory upon which the question was tried, and the view taken by the learned judge of the court below in submitting the case to the jury. Was there sufficient testimony to justify the submission of that question? The testimony of Kinsey, a witness called for the defendant and corroborated by Hall, a witness for the plaintiff was that the six planks taken from the old bridge were laid in two piles of three planks each alongside of the road and away from the traveled track. Hall, one of the plaintiff’s witnesses, passed after the planks had been piled, and testifies that they were placed as testified to by Kinsey and adds, “ that they would not have frightened an ordinarily quiet horse the way they were lying when he saw them.” Lanahan, the plaintiff, testifies when he passed about four o’clock in the morning Ms horse took fright at the place where the planks were placed and that “the planks were piled up against the fence, some standing straight and others kind of slanting.” This was the only evidence of negligence. The testimony that when the timber was left at the roadside they were regularly and orderly placed was uncontradicted. There was no evidence of their subsequent displacement by any one with the knowledge or consent of the defendant. So far as the testimony discloses they may have been displaced bjr some trespasser or by the wind. Unless it was done by the defendant or some one authorized by it, it is not liable. The fourth point of the defendant should have been affirmed, and a verdict directed for the defendant.

Judgment reversed.


text:
    Henry Boehm v. The Borough of Bethlehem, Appellant.

      Negligence — Independent or concurrent causes.

    When neither the allegata nor probata point to one of two independent causes as the source of alleged negligence but ascribe it to two concurrent causes, the doctrine applicable to independent causes has no application and the court is correct in refusing to instruct the jury that such doctrine should be by them considered.

      Municipal law — Liability for defective sewer — Question for jury.

    Where plaintiff alleges damages as resulting from the flooding of a sewer which had been permitted by the borough authorities to remain obstructed for a considerable space of time, the question of liability for damages resulting from the alleged concurrent causes is properly for the jury, also the question whether notice may not be presumed against the borough by reason of the lapse of a reasonable time during which examination should have been made.

      Damages — Measure of — Question for jury.

    There being abundant evidence of pecuniary damages resulting from overflow from a sewer the question of compensation is properly for the jury under adequate instructions from the court.
    Argued Dec. 10, 1896.
    Appeal, No. 179, Nov. T., 1896, by defendant, from judgment of C. P. Northampton Co., Oct. T., 1894, No. 82, on verdict for plaintiff.
    Before Rice, P. J., Wn> lard, Wickham, Beaver, Reeder, Oblady and Smith, JJ.
    Affirmed.

      Trespass for damages resulting from defective sewer. Before Scott, J.
    The plaintiff claimed for damages to his property by reason of an overflow from a city sewer resulting from the flooding of same, superinduced from obstructions negligently permitted to remain therein. The theory of the defense was that the flooding was the result of a cloud burst or unprecedented storm.
    Verdict and judgment for plaintiff for §269.79. Defendant appealed.

      Errors assigned among others were (1) refusal of binding instructions in favor of defendant; (2) answer to defendant’s third point, which point and answer were as follows: “ 3. In order for plaintiff to recover at all, he must satisfy the jury by the weight of the evidence, that the defendant was negligent, and that defendant’s negligence was the proximate cause of the injury. If the jury believe from the evidence that the flooding of defendant’s property was occasioned by the water backing up the alleged alleyway from the Union street culvert, thereby preventing the water from Goepp street sewer from flowing off fast enough, and that this backing up of the water was because of the emptying into the Union street culvert of the water pouring down into it from the Union street sewer and from the gutter running down the northern side of Union street into said culvert, retarding the flow of the water through said Union street culvert, tiren the intervening and independent cause of the injuries was the.said connecting sewer of Union street which was a mistake of judgment on the part of the borough officials, and the borough defendant, therefore, would not be liable for damages in this suit. Answer: Denied as stated. The point eliminates all conditions of proof relative to obstructions in the Union street culvert, which may or may not be found to have been negligently permitted to remain and which may or may not have prevented the free escape of waters from the sewer after it was backed up, and thus have contributed to any injury;” (3) answer to defendant’s fourth point, which point and answer were as follows : “ 4. If the testimony in this. case shows that the injuries suffered may have come from the alleged negligent maintenance of the alleged alleyway and also may have come from the state of affairs mentioned in defendant’s third point, either of which may have been the proximate cause of the injuries, it devolved upon the plaintiff to prove by a preponderance of the evidence that the cause for which the defendant was liable was culpable and the proximate cause. .Answer: Denied as stated. If two distinct causes are operating at the same time to produce a given result which might be produced by either, they are concurrent causes. When they are successive and unrelated in their operation, one of them must be proximate and the other the remote cause (Herr v. Lebanon, 149 Pa. 222). The conditions stated in the third point, to which this is referred, are insufficient to maintain the proposition here presented,'viz : that for one of these concurrent causes, the defendant might not be liable; (8) in affirming plaintiff’s second point, which point and answer were as follows: “ 2. The municipal authorities are liable for the damages occasioned by an open obstruction in the outlet of a sewer after a reasonable time has elapsed for its ascertainment and removal.” Answer: “ Affirmed by adding, the qualification that such obstruction has existed so long that by the exercise of reasonable care in the inspection of the highways, it ought to have been discovered;” (13, 14) error in leaving to the jury the question whether or not the storm of September 8, which was complained of, was such an unprecedented storm as to count it an act of God in its result; (15) in charging the jury as follows : “ There is no testimony in dollars and cents, gentlemen of the jury, submitted by the plaintiff that would enable you to estimate in figures by a mere arithmetical calculation what damages the plaintiff suffered by any of these storms; it is not necessary; it would be impossible to calculate such damages, perhaps, arithmetically;. there might be some evidence that would direct your attention more specifically to. the matter; but it is such as is within ordinary observation and experience when based upon what evidence is presented; ” (16) in failing to charge and instruct the jury in reference to-the contributory negligence of the plaintiff; (17) in failing to-instruct the jury as to the proper measure of damages; (18). in charging the jury as follows : “ It seems to me, although the matter of damages is entirely a question for you, gentlemen of the jury, and you are not bound by my opinion, that there is no very considerable damage proven to the owner of the property in consequence of the storms of May 28 and July 1, but the amount is to be measured by you.”

      Harry C. Cope, for appellant.
    — When facts have not been shown, from which negligence may reasonably be inferred, they should not be submitted to a jury to infer, arbitrarily and without evidence, that there was negligence: Goshorn v. Smith, 92 Pa. 435; Reese v. Clark, 146 Pa. 465.
    When an injury may have come from either one of two causes, either of which may have been the sole proximate cause, it devolves on the plaintiff to prove by a preponderance of the evidence that the cause for which the defendant was liable was culpable and the proximate cause: 16 Am. & Eng. Ency. of Law, 445.
    When the act of God is of “such an overwhelming and destructive character, as by its own force, and independently of the particular negligence alleged or shown, produced the injury, there would be no liability, though there were some negligence in the maintenance of the particular structure: ” Balt. & Ohio R. R. Co. v. Sch. Dist. 96 Pa. 62.
    When the facts are admitted or so clearly and conclusively proved as to admit of no reasonable doubt, it is the duty of the court to declare the law applicable to them: Fisher v. Railway Co., 131 Pa. 292: Selser v. Roberts, 105 Pa. 245; Pitts., etc., Railway Co. v. Lyon, 123 Pa. 140.
    Where actual pecuniary damages are sought, some evidence must be given showing their existence and extent. If that is not done, the jury cannot indulge in an arbitrary estimate of their own: Baker v. Manhattan R. Co., 118 N. Y. 533: Sedgwick on Damages, Chap. 2, p. 47; Jones on Neg. of Munic. Corp. sec. 250; Lentz v. Choteau, 42 Pa. 438; 1 Sutherland on Damages, sec. 437; Haus v. Bethlehem Borough, 134 Pa. 12; Railroad Co. v. Zebe, 33 Pa. 318; Weir v. Plymouth Borough, 148 Pa. 566.
    Where the judge prominently presents in his charge the theory and strong feature of the prosecution, and ignores the theory of the defense and the facts on which it is based, this constitutes cause for reversal on error: Goersen v. Commonwealth, 99 Pa. 388; Minick v. Gring, 1 Pa. Superior Ct. 484.

      William C. Loos, for appellee.
    — This case is ruled by Haus v. Bethlehem Borough, 134 Pa. 12.
    A municipal corporation which is bound by its charter to

      April 12, 1897:
    keep its streets in repair and remove nuisances therefrom, is liable for an injury occasioned by its neglect to do so: Norristown v. Moyer, 67 Pa. 355; Erie v. Schwingle, 22 Pa. 385; Pittsburg v. Grier, 22 Pa. 54; Railroad Co. v. Jones, 24 W. N. C. 562.
   Opinion by

Reeder, J.,

There is very little in the nineteen specifications of error which has not been carefully considered and fully discussed by the learned judge of the court below in his charge to the jury. In several of the assignments of error the defendant below and appellant here complains that the court did not correctly discuss and submit to the jury the law relating to an injury resulting from one of two proximate causes. The appellant correctly states the law to be that where an injury may have come from one of two causes either of which may have been the sole proximate cause it devolves upon the plaintiff to prove by a preponderance of testimony that the cause for which the defendant was liable was the culpable and proximate cause, citing Shaeffer v. Twp., 150 Pa. 145, 151; Borough v. Reinhart, 13 W. N. C. 389; 16 Am. & Eng. Ency. of Law, 445; Patterson on Railway Law, section 373. That is to say where there are two independent causes either of which could be the proximate cause of the injury the burden is on the plaintiff to show that the one for which the defendant is responsible was the one which caused the injury sought to be recovered for. But that law is not applicable to the facts in this case. The ’ plaintiff does not allege nor the evidence disclose two independent causes to either of which the damage might be ascribed but to two concurrent causes: One the permitting of obstructions to remain in the sewer; the other the subsequent flooding of the sewer. The obstructions could not have caused the injury without the flow of water; the flow of water might not have caused the injury were it not for the existence of the obstructions. Hence the law as stated by the appellant and the authorities cited in support of it are not applicable to the facts in this case. Therefore the court was correct in its denial of the defendant’s fourth point and its instruction to the jury in the general charge .that they must determine the plaintiff’s right to recover upon whether he had succeeded in convincing them that the damage had resulted from obstructions in the sewer of which the defendants had notice or the obstructions existed for such a length of time that the authorities -of the borough in the exercise of ordinary care and diligence in the examinations of their alleys and streets should have seen in which event they would be regarded as having had constructive notice. “ The omission to make an occasional examination is negligence. The city is presumed to have notice of a defect after a reasonable time for its ascertainment and removal: ” Vanderslice v. Phila., 103 Pa. 102. There was abundant evidence in this case to submit both the question as to the existence of the obstruction and the time of their existence to the jury.

• A large number' of witnesses testified to the fact that the obstructions were there, the length of time they were there and to their character: Henry Boehm says, “It was always bad, never attended to. There were stones and sticks and mud. I examined it often and I found those stones very much in the road and that of course had the effect to raise the water much higher than anywhere else.” Plenry Reese and Samuel Haines testify to the same effect. Oliver King testifies that he was employed by the borough to clean the sewer but only removed the dry sand, not the stones. The plaintiff’s witnesses declared that 'the stones never had been removed from the sewer. The boy who cleaned the sewer declared he picked the stones from the bottom of the sewer and piled them up in the sewer upon one side; other witnesses testify that the outlet of the Union street •sewer was partially obstructed by stones that were left there when the sewer was built and that they were never removed until after this suit was brought ^and that these stones and weeds prevented the free discharge of the water from the sewer. This testimony rendered submission of the question of defendant’s negligence to the jury imperative and it would have been palpable error not to have done so. The appellant complains that there was such evidence of contributory negligence as to make it error to submit the case • to the jury. This claim it seems' is based upon a misconception of the testimony. There is no evidence that any ashes or garbage were thrown into the sewer by the plaintiff or by the tenants of the plaintiff. Even though there was proof of such acts by his tenants it would not relieve the defendants from liability for their negligence. A landlord is not liable for any negligence of a tenant: Wunder v. McKean, 134 Pa. 334. But in this case there is absolutely no evidence of such negligence. Samuel Haines, the tenant, testified that “ He always prevented the throwing of garbage or rubbish in the sewer” by any member of his family. There was some evidence that in repairing the building Henry Boehm, the plaintiff, threw some slate in the sewer but that a day or two afterward he took it all out again. The appellant in his 15tb, 16th and 17th assignments of error complains of the court’s instructions to the jury upon the measure of damages. There was abundant evidence as to the amount of the pecuniary damage suffered by the plaintiff to warrant the submission of that question to the jury. . The defendant after describing the character of the injury to his lot estimates its depreciated value at $500 and that of the building also at $500. This in itself was enough to carry the case to the jury upon that point. The case was fairly submitted in a careful, deliberate well considered charge in which the attention of the jury was called to the law, correctly stated by the court below, as applicable to the facts in this case. All the assignments of error are dismissed, for the reasons stated by us in this opinion.

Judgment affirmed.


text:
    David G. Garabrant, Jonathan Bulkley and James S. Packard, trading and doing business as Bulkley, Dunton & Company, v. John G. Wood and S. Edgar Trout, trading and doing business as Wood & Trout, Appellants.

      Partnership — Scope of, as between partners and strangers.

    Partners, as between each other, are bound by the terms of their articles of copartnership ; as between themselves and outside parties, they are bound by whatever representations theyjointly make as to the scope of their business or the purpose, character and composition of the firm.

      Partnership — Scope of business — Implied authority of partner.

    It is the law of business that a manufacturer of any particular line of products is also a dealer in that product and that in the course of business • he may be compelled from various causes to become a purchaser of the material manufactured by him. When a partnership does so purchase it follows that its purchases are within the scope of its line of business and the firm will be responsible for orders so given in the name of the firm.

      Appeals- — Review—Conchisiveness of referee's findings.

    The affirmance of the court below of a referee’s findings of fact is generally as conclusive upon the appellate court as the verdict of a jury.

      Evidence — Booh entries — Proof of.

    An original book entry in a shop book when the entry is in the handwriting of the clerk must be proved by him if he is within the jurisdiction of the court. If he is beyond the power of the court his handwriting may be proved.
    Argued Jan. 11, 1897.
    Appeal, No. 20, Jan. T., 1897, by defendants, from judgment of C. P. Luzerne Co., Feb. T., 1894, No. 276, confirming the findings of referee and dismissing exceptions thereto.
    Before Rice, P. J., Willard, Wickham, Beayer, Reeder, Orladt and Smith, JJ.
    Affirmed.
    Assumpsit on book account, Before Lynch, J.
    The case came up on exceptions to report óf F. W. Wheaton, Esq., referee, who found for the plaintiffs for the amount of their claim $759, with interest from February 1, 1894.
    The court below dismissed the exceptions to the referee’s report.
    The facts are sufficiently set out in the opinion of the Superior Court.

      Errors assigned among others, were, (2) in overruling the second exception to the rulings and findings of the learned referee, which exception and ruling were as follows: “ 2. The learned referee erred in overruling Mr. Butler’s objection to witness Garabranfc reading certain book entries, the objection being: Mr. Butler objects to the witness reading these entries, as being incompetent and irrelevant, because the entries were made in the handwriting of the invoice clerk, who is now in the employ of the plaintiff firm, and who is not present to testify and lias not been sworn, his deposition has not been taken, nor commission issued.” By Mr. Butler: “ Were you present when the charge on the order book was made ? A. I can’t absolutely say whether I was or not, at this distance; if I was home to look up something to enable me to say — Q. Were you present when the entries on the sale book, pages 148 and 218 were made ? Were you present and saw the clerk make these entries? A. Same answer would apply as to previous question; they were both made at the same time.”
    “ Q. Of course if you were not present you don’t know. You suppose they were made; what is your own knowledge? A. I can’t say that I saw them being entered, but I know that is the clerk’s handwriting. I know that these are the transactions of that day, and they must have been made in the regular course.” The referee says : “ It appearing to the referee that the invoice clerk was the regular clerk to make these eiitries, and that the sales book was the regular book in which the entries should be made, as testified to by the witness, and that the invoice clerk is in New York, beyond the jurisdiction of the common pleas of Luzerne county; and it further appearing by the testimony of the witness that the charges he proposes to testify to as entered upon the designated pages of the sales book were entered simultaneously with the red ink entry in the order book which the witness testifies was entered at the same time as the entry to the Ravenswood Paper Company, — the referee thinks that the evidence is competent and it is therefore admitted. The objection is therefore overruled and bill sealed.” (6) To the referee’s finding of fact as follows: “ The referee finds as a matter of fact that the purchase was in accordance with and within the scope of the partnership business and interest of the defendant firm.” (10) In declining to find as requested by defendant in his eighth request: “ That there was no contract by the defendant firm, nor was there any other reason whereby there arose any necessity whatever for the defendant firm to purchase the 390 rolls 9-ounce hanging paper sued for by the plaintiff.” The referee declines to so find. (13) In the referee’s finding of the fourth request of the defendant as matter of law: “ That there is not sufficient proof in the case at bar establishing that’ the transaction upon which plaintiffs’ suit rests was reasonably necessary or fit for the successful prosecution of defendant’s business.”
    The referee declines to find as requested in this paragraph, and on the contrary, holds that there was under the evidence a reasonable necessity entitling the defendant firm to enter into the contract which it admittedly did with the plaintiffs, whereby it might be bound for the goods so contracted for and deliveretl. (15) In the referee’s finding on the sixth request of the defendant: “ 6. That the articles of agreement of defendants’ partnership did not or do not specially authorize either partner to make the transaction in dispute.”
    The referee declines to find as requested in this paragraph; but says that, on the contrary, there is sufficient authority in the articles of agreement between the defendants whereby their partnership was constituted, to authorize S. Edgar Trout, therein described as the purchasing agent of said partnership, to enter into and to bind the partnership for all such matters and things as might be bought by him within the scope of the partnership business. -(16) In the referee’s finding and answer to the defendant’s ninth request on the law: “9. That authority is not conferred upon any partner of a firm organized and formed by articles of agreement in writing for the exclusive business of manufacturing and vending that manufactured product, to purchase such manufactured product from a third party upon the credit of the firm and bind his copartners.”
    And which answer of the learned referee is as follows :
    “ In the general manner in which this request is made the referee declines to find as requested, and on the contrary, finds that even if the copartnership articles confined the partners to the exclusive business of manufacturing and vending the manufacturing product, there might be circumstances by virtue of which one partner, properly being at the time of the transaction by virtue of the articles of copartnership the purchasing partner of the firm, might bind such a firm by a contract under whichhe purchased the manufactured article.” (17) In declining to find as requested in the defendant’s tenth request: “ That it is not within the scope of the business of a partnership founded for the business or trade of manufacturing exclusively an article, to purchase from another manufacturer or dealer the same article on credit and bind his copartners. Referee declines to find as requested in this paragraph.”

      Edmund Gr. Butler, for appellants.
    — Unless the special authority is known Trout was without authority to bind the firm: Walcott v. Canfield, 3 Conn. 194; Porter v. Wilson, 13 Pa. 641; Hoskinson v. Eliot, 62 Pa. 393.
    It was error for the referee and the court below to find as a matter of fact that the bargain made by Mr. Trout was in accordance with and within the scope of the partnership business, and to support this by a similar finding as matter of law : 17 Am. & Eng. Ency. of Law, 989 et seq.; Irwin v. Williar, 110 U. S. Reports, 499; Robert's Appeal, 92 Pa. 407; Babcock v. Stewart, 58 Pa. 179.
    April 12, 1897:
    A firm cannot be bound by an untrue statement of a partner as to the nature and extent of the business : Lindley on Partnership, 252, 253; Story on Partnership, sec. 112, ed. 1850.
    If a person who makes a book entry is alive it is necessary to produce him: Bank v. Whitehill, 16 S. & R. 89.

      Isaac P. Hand, with him Joseph Moore, for appellee.
    — The affirmance of a referee’s report by the court below settled beyond dispute all questions of fact: Phila. v. Linard, 97 Pa. 250.
    The second assignment of error cannot be sustained under the authority of Sterrett v. Bull, 1 Binn. 234; Hay v. Kramer, 2 W. & S. 137.
    Mr. Trout was a member of the firm and as such has the authority and power to bind his copartner by acts done within the scope of the partnership, or bind the firm by any contract necessary to carry out the purpose for which the partnership was formed: Fund Society v. Savings Bank, 36 Pa. 498; Kenney v. Altvater, 77 Pa. 34; Clark v. Johnson, 90 Pa. 442; Rice v. Jackson, 171 Pa. 89.
    The criterion, either for action or defense, is not whether the party contracting had knowledge of the partnership, but whether the contract was with the partnership; and if the subject be within the scope of its business, this will be presumed until the contrary is established: Alexander v. McGinn, 3 Watts, 220; Livingston v. Cox, 6 Pa. 360; Purdy v. Powers, 6 Pa. 492; in all partnerships, whether trading or nontrading, there is an implied power in each partner to bind the firm by any contract necessary to carry out the purpose for which the partnership was formed, notwithstanding secret limitations upon the powers of the partners in the partnership article: Rice v. Jackson, 171 Pa. 89.
   Opinion by

Reeder, J.,

This case was tried under the act of 1869 and its supplements by a referee agreed upon by the parties and without a jury. The question for us to determine is whether the contract made by Trout with the plaintiffs “ for hanging paper ” was within the line of business conducted by the defendants so that the partnership was bound by contracts in the firm name made by either of the partners. There is a distinction in the liability of members of a firm as affecting their accounts between each other and their liability with parties from whom they obtain credit or transact business. As between each other they are bound by the terms of their articles of copartnership, as between themselves and outside parties they are bound by whatever representations they jointly make as to the scope of their business or the purposes, character and composition of the firm. This thought runs through the entire findings and discussions thereon of the learned referee in the court below. By the articles of copartnership, the business of the firm was “ The manufacturing of paper and vending the same.” Mr. Trout was a member of the firm, and had full authority to bind the firm by any contract, which was within the scope of the partnership business. The defendants had letter heads printed advertising themselves as “manufacturers of Chemical Manilla Hanging and Wrapping papers.” Trout called upon the plaintiffs and handed them a card containing the name of the firm and advertising the firm as “manufacturers and dealers in chemical fibre and hanging papers.” If these letter heads and business cards were used b_y the consent or with the knowledge of Wood of course he would be bound by any purchases Trout might make of any such paper. But Wood denies that they were used with his knowledge “at that time.” What this qualification of this denial means, it is impossible for us to determine for it is not discussed at all by the referee nor is there any finding of fact by him in relation to the uses of their letter heads or business cards. For the purposes of this decision however it is not necessary for us to consider it. It is a law of business that a manufacturer of any particular line of products is also a dealer in that product, and that in the course of his business he is frequently compelled by a multitude of orders which is beyond his capacity or by derangement of machinery or from other causes to become purchasers of the material they manufacture. That when firms do so purchase, such purchases are within the scope of their line of business cannot successfully be contested. In this case one of tbe members of the defendant firm went to the place of business of the plaintiffs and represented that they had orders for hanging paper which they were unprepared to fill, that owing to delay in getting in machinery to manufacture hanging paper they would have to purchase the paper from some other dealer or manufacturer. The order was accepted and the plaintiffs were ordered to ship the paper on the defendants’ account to the Long Island Wall Paper Co., at Ravenswood, Long Island. This was done and this suit is for the recovery of the value of the paper so shipped by them. This was within the scope of the partnership business as advertised by the firm and they were responsible for the account. When the order for this paper was received by Wood & Trout they endeavored to' manufacture it. The paper they made was defective and did not give satisfaction to their customers. Trout then went to the Long Island Paper Co., from whom they had an order and told them the paper would be finished within a certain time. Pie then came home and told Wood that he would have to buy the paper and he said it was all right and after that, the paper was purchased from the plaintiff copartnership. After the purchase Trout says he told Wood of the purchase and he said “we will malee arrangements to pay the bill.” Wood denies this and says the purchase was made without his knowledge. This raises a question of credibility which the referee has practically decided in favor of the plaintiffs, first by his finding for them for the amount of their bill. Again by his refusal to find as requested by tbe defendant in his fifth request. The assignment of error as to the other findings of facts we cannot consider. The affirmance by the court below of the referee’s finding of facts is generally as conclusive as the verdict of a jury upon the facts: Thornton v. Ins. Co., 71 Pa. 234; City of Phila. v. Linnard, 97 Pa. 250. The second assignment of error cannot be sustained under the authority of Sterrett v. Bull, 1 Binn. 234; Hay v. Kramer, 2 W. & S. 137. There is no error that we can find in the record, and all the assignments of error must be overruled.

Judgment affirmed.


author: Rice, P. J.,

text:
    Max Meadows Land and Improvement Company, Appellant, v. W. G. Mendinhall.

      Affidavit of defense — Sufficiency of affidavit alleging false representations.

    Great liberality is always exercised in the admission of evidence having a tendency to show fraud, and in determining whether the allegation is established the united force of the items of testimony having this tendency is to be considered. So where the fraud consists in false representations in which matters of fact and matters of opinion are so ingeniously joined as to make the whole deceptive and misleading, they are to be considered as a whole. Equity will relieve if one material allegation, relied on, was false.

      Practice, G. P. — Affidavit of defense — Sufficiency—Fraud.
    When an allegation of fraud is relied on in an affidavit of defense, the facts constituting the fraud should be fully set forth. But where representations inducing a contract are indefinite, an averment that such representations were false and fraudulent entitles defendant to have the bona iides of such representations intrusted to a jury.

      Practice, G. P.- — Affidavit of defense — Setting out papers referred to therein.

    Without relaxing the rule which requires all papers, referred to in an affidavit of defense, to be set out it would be unreasonable to hold without qualification, that newspaper advertisements, handbills and printed prospectuses must be set forth in haee verba, when relied upon as elements in false and fraudulent misrepresentations.

      Fraudulent misrepresentations — Credulity of other party no defense.

    However negligent a party may have been to whom ail incorrect statement has been made, yet that is no matter of defense. No man can complain that another has relied too implicitly on the truth of what he himself stated.

      Practice, O. P. — Refusal to enter judgment below seldom reviewed.

    The appellate courts will not interfere where rules for judgment have been discharged in the lower courts in doubtful cases, but only in such as are very clear and free from doubt; it must indeed be a very plain case of error in law to justify interference with the decree of the common pleas, discharging a rule for judgment.
    Argued Oct. 5, 1896.
    Appeal, No. 48, Nov. T., 1895, by plaintiff, from decree of C. P. No. 4, Phila. Co., March T., 1895, No. 1087, refusing judgment for want of sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Assumpsit to recover on four promissory notes aggregating $593.34. Before Thayeb., P. J.
    Suit was brought on four promissory notes given in payment of deferred instalments of purchase money due on real estate. An affidavit of defense was filed thereto. Rule for judgment for want of a sufficient affidavit of defense was taken and a supplemental affidavit was allowed.
    The copies of. the affidavit and supplemental affidavit are as follows:
    AFFIDAVIT.
    William G. Mendinhall, the defendant in the above case, being duly sworn according to law, deposes and says that he has a just, true, full and legal defense to the whole of the plaintiff’s claim, of the following nature and character, to wit:
    The notes upon which suit is brought are for deferred instalments of purchase money for two several lots of ground, No. 9, section 50, plan C, and No. 4, section 31, plan B, as plotted and laid out on certain plans of record in the clerk’s office of the county court of Wythe county, Virginia, which lots were purchased by the defendant on the twenty-fifth day of October, 1890, at a public auction of the lands of the said company, held by the said company in Wythe county aforesaid. The defendant received for the said lots deeds dated October 25,1890, and paid to the said company as the first instalment of the purchase money the sum of $296.66 on account of lots Nos. 9 and 4, the deferred instalments of purchase money for the said lots being secured by a deed of trust accompanied by the notes upon which suit.has been brought, under which deed of trust the defendant conveyed the said lots to Joseph S. Clark, trustee, upon the trust that if said deferred payments should not be paid at maturity, the said lots were to be sold to satisfy the same. The defendant alleges that previous to and at the time of the sale of the said lots by the plaintiff to him, the said plaintiff, by its agents and officers and by printed handbills and advertisements printed by the said company in the newspapers, and by a prospectus advertising and publishing the sale of the said lots, falsely and fraudulently represented that the following industries were at the town of Mas Meadows, in which the lots purchased by defendant were located, viz : A one hundred and fifty ton blast furnace under construction, that iron mines were being open and connected with the furnace by railroad, that a brickyard was in active operation, and that the following industries had agreed to locate at said place: rolling mill and horseshoe works, a planing mill, sash, door and blind factory, and that negotiations were in progress and would probably be concluded within the next few weeks after the said October 25, for a machine shop, foundry, boiler and engine works, and that the said industries would employ at least from seven hundred to one thousand men, and would insure a population of from three to four thousand at the start. The said company, by its officers and agents, and by the said prospectus, handbills and advertisements, falsely and fraudulently represented that it had secured the services of a competent manager, having a large acquaintance among manufacturers of the north, who would make it his special business to induce new industries to locate at the said place, that negotiations were in progress with quite a number, and there was every reason to believe that during the next six months or year many new industries in addition to those already secured would be located and the population largely increased thereby. And the defendant alleges that the said representations were made by the said company, its officers and agents, falsely and fraudulently, to induce the defendant to purchase the lots aforesaid, and to give the notes upon which suit is brought, and that if it had not been for said representations and inducements the defendant would never have signed the notes upon which suit has been entered, and the defendant further alleges that the blast furnace was never completed, or, if completed, has always remained idle; that the iron mines have not been worked to any extent; that no brickyard is in active operation, as the said prospectus alleged ; no rolling mill, or sash, door and blind factory, as stated in the said prospectus was established at said place: nor any machine shop, foundry, boiler and engine works, and that instead of a population of from three thousand to four thousand, as said prospectus stated would be insured, the entire population amounts to but a few hundred.
    And the defendant further alleges that the said Max Meadows Land & Improvement Company, by its officers and agents, and by handbills, advertisements and prospectus, made false and frauduent representations with reference to the growth of said place, among them being one that the Norfolk and Western Railroad Company proposed to erect a handsome stone passenger station on the ground reserved for the purpose, and that work would be commenced within the then coming year, but, as a matter of fact, no handsome stone passenger depot or station was erected by the said railroad company, nor was work commenced within the then next coming year, upon said station by the said company, nor has work been commenced thereon up to the time excepting to make excavations for foundations.
    Defendant further alleges that the said lots of ground deeded to him by the company are practically worthless and of vastly less value than the amount already paid on them by him.
    Defendant further alleges that at the said public sale the lots bought by the defendant were represented as being clear of incumbrance, and that the deeds for the said lots from the plaintiff to the defendant conveyed the said lots with covenants of general warranty free from all incumbrances of every kind and character, and when the defendant purchased the same, he supposed he had purchased unincumbered property, and alleges that Randal McGavock and others, his heirs at law and children, on the 1st day of February, 1888, long prior to the sale of the said lots by the said heirs and children to the Max Meadows Land & Improvement Company, executed to S. W. Jameson, trustee for A. M. and W. M. Fuller, a deed of trust to secure said parties in the sum of $20,000, -which said lien and incumbrance still remains unpaid and unsatisfied of record against the lots purchased by the defendant as aforesaid, and the defendant alleges that this incumbrance and defect in the title of the plaintiff was known to the plaintiff at the time the defendant made the purchase and contract, and was concealed by it from him and never disclosed to him by the said company, and has only been recently ascertained by him since his purchase of the aforesaid lots, and defendant alleges that he would never have entered into said contract and purchased said lots bad it not been for the false and fraudulent representations of the said company, as above set out, nor if the said company had disclosed to him the defects in its title to the lots aforesaid. And defendant further alleges that the equity in him above the incumbrance aforesaid is practically worthless and of vastly less value than the amount paid by him on account of said lots as aforesaid.
    And the defendant claims to recover back from the plaintiff the total amount paid by him as aforesaid, to wit, $296.66, with interest from October 25,1890, and is willing, if the plaintiff so desires, to deed back the lots aforesaid.
    The defendant further alleges that the notes upon which suit is brought accompanied the aforesaid deed of trust, and were delivered in Wythe county, Virginia, and that at the suit of one John C. Brady, who had bought a lot of ground from the plaintiff under the same prospectus and false and fraudulent representations as those under which the defendant bought his lots, the circuit court of the said Wythe county ordered and decreed that the said Max Meadows Land and Improvement Company should by reason of the false and fraudulent representations aforesaid, pay back to the said Brady the amount which he had paid on account of his purchase, and that the said decision is in full force and effect and recognized as such in said Wythe county, Virginia.
    The above stated facts the defendant avers, he has been informed of, verily believes, and expects to be able to prove at the trial of this cause.
    SUPPLEMENTAL AFFIDAVIT.
    William G. Mendinhall, the defendant in the above case, being duly sworn according to law, deposes and says, that the first instalment of the purchase money for the lots of ground referred to in the plaintiff’s statement of claim was paid at the time the auction sale was held, and that previous to and at the time of the sale of the said lots, the plaintiff by its officers and agents, and by printed handbills and advertisements printed by the said company in the newspapers and by a prospectus, advertising and publishing the sale of the said lots, falsely and fraudulently represented that the following industries were at the town of Max Meadows, in which the lots purchased by the defendant, were located, namely, a one hundred and fifty ton blast furnace under construction, that iron mines were being opened and connected with the furnace by railroad and that a brick yard was in active operation and that the following industries had agreed to locate at said place, viz: Rolling mill and horseshoe works, a planing mill, sash, door and blind factory, and that negotiations were in progress and would probably be concluded within the next few weeks after the said October 25th, for a machine shop, foundry, boiler and engine works and that the said industries would employ at least seven hundred to one thousand men, and would insure a population of from three to four thousand at the start. The said company, by its officers and agents and by the said prospectus, handbills and advertisements, falsely and fraudulently represented that it had secured the services of a competent manager, having a large acquaintance among manufacturers of the north, who would make it his special business to induce new industries to locate at the said place, that negotiations were in progress with quite a number, and there was every reason to believe that during the next six months or year, many new industries in addition to those already secured, would be located and the population largely increased. And the defendant alleges that the said representations were false and were made by the said company, its officers and agents falsely and fraudulently to induce the defendant to purchase the lots aforesaid, and to give the notes upon which suit is brought, and that if it had not been for such representations and inducements, the defendant would never have signed the notes upon which suit has been entered, and the defendant further alleges that the blast furnace was not and never has been completed, and that the same has never been operated, and that the iron mines were not and never had been opened, except to take out a small quantity of ore which has never been smelted in the furnace, that no planing mill except of the most insignificant size and capacity has been or ever was established; that no sash, door and blind factory have been or ever were established at the said town, nor any machine shop, foundry, boiler and engine works as said prospectus stated, and that instead of a population of from three to four thousand as the said prospectus stated would be insured, the entire population has never amounted to more than a few hundred. And he further alleges that the plaintiff never secured the services of a competent manager who made it his special business to induce new industries to locate at the said place and alleges that no handsome stone passenger depot or station has been or ever was erected by the Norfolk & Western Railroad Company at said place as the plaintiff’s agents falsely and fraudulently represented would be- done.
    The above stated facts the defendant avers, he has been informed of, verily believes and expects to be able to prove at tbe trial of this case.
    April 12, 1897:
    Rule for judgment being discharged, plaintiff appealed.

      JError assigned was in refusing to enter judgment against the defendant for want of a sufficient affidavit of defense.

      Owen B. Jenkins, with him John F. Keator and J. S. Freemann, for appellant.
    — The sale for which the notes in suit were given was made by public auction on the grounds in question, and defendant below had full opportunity to ascertain the truth of the representation of plaintiff below; Mahaffey v. Ferguson, 156 Pa. 156.
    The representations to the vendee that certain improvements are contemplated are expressions of opinion, and, unless known by the one making the representations to be false, ai’e no defense to a suit for the price: Bradfield v. Land Co., 8 Southern Rep. 363; Birmingham Co. v. Land Co., 9 Southern Rep. 235; Cooke v. Cook, 14 Southern Rep. 171.
    The affidavit is defective in that it fails to set forth copies of the papers on which defendant relies for his defense: Richards v. Bisler, 3 W. N. C. 485: Birkey v. Whitaker, 4 W. N. C. 137; Erie City v. Butler, 120 Pa. 374; Hebb v. Ins. Co., 138 Pa. 174.
    If the title has been conveyed and accepted and a bond given for the purchase money or a part thereof, the general rule is there can be no abatement of the purchase money except in case of mistake, imposition or fraud: Comegys v. Davidson, 154 Pa. 534.
    All real property and contracts and instruments affecting the title thereto are exclusively subject to the laws of the government within whose territory the land is situated: Milne v. Moreton, 6 Binn. 352; 3 Am. & Eng. Ency. of Law, 563.

      John F. Lewis, for appellee.
   Opinion by

Rice, P. J.,

Great liberality is always exercised in the admission of evidence having a tendency to show fraud, and in determining whether the allegation is established, the united force of the items of testimony having this tendency is to be considered: Montgomery Web Co. v. Dienelt, 133 Pa. 585. So where the fraud consists in false representations in which matters of fact and matters of opinion are so ingeniously joined as to made the whole deceptive and misleading, they are to be considered as a whole. If any one material representation relied on was false, equity will relieve, although such representation may not have been the sole inducing cause of the contract: Sutton v. Morgan, 158 Pa. 204-213. By taking up each of the alleged false representations separately, and giving it a literal interpretation, and not considering what was the effect, and intended to be the effect, of the representations taken as a whole, a very plausible argument can be made to show that the literal falsity of some of the representations is not sufficiently alleged, and that others were statements of mere matters of opinion. But even according to this method the plaintiff’s counsel are not wholly successful in showing that this is true of all of them. For example, one of the alleged representations was that the plaintiff “ had secured the services of a competent manager, having a large acquaintance among manufacturers of the north, who would make it his special business to induce new industries to locate at the said place.” The affidavit denies that the plaintiff ever “ secured the services of a competent manager who made it his special business to induce new industries to locate at the said place.”' We are asked to brush aside these allegations, as of no account, because the defendant does not allege that the plaintiff had not secured the services of a manager whom they believed to be competent. Upon an appeal from an order refusing judgment we ought not to act upon the assumption that the plaintiffs had engaged a manager, whom they believed to be competent, or that they had engaged any manager. The defendant alleges that the representation, as made, was untrue in a material part,' and that it was fraudulently made.

Again it is alleged that the plaintiffs “ falsely and fraudulently represented that the following industries had agreed to locate at said place : rolling mill and horseshoe works, a planing mill, sash, door and blind factory, and that negotiations were in progress and would probably be concluded within the next few weeks after the said October 25, for a machine shop, foundry, boiler and engine works.” This was a representation of existing facts within the knowledge of the plaintiff, and not a statement of mere matters of opinion or conjecture; it was made for the purpose of inducing the defendant to buy lots and to give his notes therefor, and it is alleged that it was believed by him and was one of the inducements. . Is it sufficiently averred that it was false and fraudulent ? If the representation had been that certain persons, naming them, had agreed to locate industries at the place, a bare allegation that the representation was falsely and fraudulently made might not be sufficient. Where an allegation of fraud is relied on in an affidavit of defense the facts constituting the fraud should be fully set forth. And in the case supposed, the defendant would he expected to aver specifically that the persons named had not agreed to locate industries there. But owing to the indefiniteness of the representations in this particular the most that could be reasonably expected of an honest defendant would he that he should aver that the representation was false and fraudulent and that the industries mentioned never were located there. If this is not sufficient to entitle him to have the truth and bona fides of these representations submitted to a jury, then no more successful method of deceiving and defrauding by false representations can be devised than by so adroitly wording them as to make it impossible for the person deceived to prove their falsity except by inference. If the plaintiff made these representations in good faith, believing them to be true they will have an opportunity of showing it before a jury.

It may be said that the defendant ought not to have relied on the representations without inquiring as to what persons had agreed to locate industries at the place, and with whom negotiations for the location of other industries were being made. On this point it has been well said : “ However negligent the party may have been to whom the incorrect statement has been made, yet that is a matter affording no ground of defense to the other. No man can complain that another has relied too implicitly on the truth of what he himself stated:” Kerr on Fraud and Mistake, 81; Sutton v. Morgan, 158 Pa. 204; Braunschweiger v. Waits, 179 Pa. 47.

It is urged that the affidavit is defective because a copy of the prospectus is not attached. We do not mean to relax the rule upon the subject of setting forth copies of papers referred to in affidavits of defense. But the rule is to have a reasonable application, and it would be unreasonable to hold, without qualification, that all the newspaper advertisements, hand bills and printed prospectuses must be set forth in heec verba. Besides that, the affidavit alleges that the false representations were made by the officers and agents of the company, as well as in the advertisements. This would be sufficient to sustain the affidavit without reference to the printed matter referred to.

It seems both unnecessary and unadvisable to further discuss the merits of the case in advance of the trial; for it is to be borne in mind that it comes before us at this time on appeal from an order discharging the rule for judgment for want of a sufficient affidavit of defense. The act allowing appeals from such interlocutory orders was intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. Numerous cases might be cited in support of this proposition, but I shall refer to only a few. “In doubtful cases and especially in those requiring broad inquiry into facts, where the court refuses judgment the matter in controversy should go to the jury as the proper tribunal to decide the cause under proper instructions from the court: ” Griffith v. Sitgreaves, 81* Pa. 378; Radcliffe v. Herbst, 135 Pa. 568. “It requires a clear case to induce us to reverse the court below under such circumstances, for the reason that a refusal to enter judgment sends the case to the jury, where the rights of the parties can be properly disposed of: ” Murphy v. Cappeau, 147 Pa. 45. “ We do not mean to interfere where rules for judgment have been discharged in the lower courts in doubtful cases, but only in such as are very clear and free of doubt, as we have frequently said: ” Ensign v. Kindred, 163 Pa. 638. “ It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment: ” Ætna Ins. Co. v. Confer, 158 Pa. 598.

Tested by the rule laid down and followed by the Supreme Court in these and other cases, the appeal should be dismissed, thus leaving the question as to the truth, the hona fides and the materiality of the alleged representations to be determined after the facts are fully developed on the trial, and the law of Virginia has been duly proved. See Musser v. Stauffer, 178 Pa. 99.

The appeal is dismissed at the costs of the appellant but without prejudice, etc.


author: Beaver, J.,

text:
    C. S. McCormick and F. S. Nevling v. James L. McGonigal, Administrator.

      Judgment — Auditor may inquire as to payment.

    While an auditor appointed to distribute a fund cannot go behind a judgment of a court of competent jurisdiction to inquire into its regularity or its merits he is not precluded from receiving testimony to show that since its rendition it has been paid or otherwise satisfied.

      Appeal — Review of auditor's findings of fact.

    An appellate court will not disturb the findings of fact made by an auditor and confirmed by the court below, except in cases of fraud, of clear mistake or of manifest lack of due consideration.
    Argued Feb. 9, 1897.
    Appeal, No. 1, Feb. T., 1897, by C. S.
    McCormick, from order and decree of O. C. Clinton Co., dismissing exceptions to auditor’s report and confirming said report.
    Before Rice, P. J., Willard, Wickham, Beaver, and Reeder, JJ.
    Affirmed.
    Exceptions to auditor’s report. Before Metzger, P. J., specially presiding.
    Real estate of decedent having been sold for payment of debts the account of the administrator was referred to Jesse Merrill Esq., as auditor to pass upon exceptions filed thereto and to make distribution.
    The question raised by this appeal is whether a judgment of one J. W. Potter to the use of C. S. McCormick v. John Mc-Gonigal, the decedent, was paid before the sale of the real estate for the payment of decedent’s debts. The auditor found as a question of fact that the judgment was so paid. Exceptions to the report of the auditor were dismissed by the court below.

      Error assigned was dismissing exceptions and confirming the

      April 12, 1897:
    report of the auditor, thereby declaring the judgment of the appellant paid and applying the money in accordance with the account filed.

      A. F. Byon and C. La Rue Munson, for appellant.
    — The appellate court will reverse a decree confirming the auditor’s report if his conclusions are not warranted by the facts specifically found, or not materially disputed: Jacob’s Appeal, 107 Pa. 187; Miller’s Appeal, 102 Pa. 544; Milligan’s Appeal, 97 Pa. 525; Hindman’s Appeal, 85 Pa. 466.

      II T. Harvey, for appellee.
    — The finding of an auditor upon a question of fact being sustained by the court below, the appellate court will not reverse, because the finding might have been the other way, if the evidence was sufficient to sustain the finding: Lewis’s Appeal, 127 Pa. 127.
    The Supreme Court will not go over the evidence to correct matters of fact found by the auditor and approved by the court below except it be an extreme case, one of clear error: McCarty’s Appeal, 14 Atl. Rep. 352.
   Opinion by

Beaver, J.,

A single assignment of error brings before us in this case a single question of fact, pure and simple. Was the judgment of Potter, of which the appellant is the assignee, against John McGonigal paid prior to McGonigal’s death? The question was raised before an auditor appointed to distribute the balance in the hands of the administrator of John McGonigal. It was within the power of the auditor to consider this question. If authority for this proposition were needed, it will be found in Borland’s Appeal, 66 Pa. 470: “It is certainly true that an auditor appointed to distribute the proceeds of a sheriff’» sale cannot go behind the judgment of a court of competent jurisdiction either to inquire into its regularity or its merits, but it is equally true that he is not precluded from receiving testimony to show that since its rendition it has been paid or otherwise satisfied.” This question of fact coming within the scope of the legitimate power of the auditor has been found by him against the appellant. The orphans’ court, upon exceptions to the report of the auditor, confirmed his finding of fact. The character of the testimony adduced upon the one side and the,other to support or refute the fact was such as is peculiarly the province of an auditor to pass upon and determine. This is clearly shown by his finding which is as' follows: “ There was a wide difference of opinion in the witnesses called by the several parties as to the value of the property obtained by Mr. McCormick by purchase at the sale. From the character of the witnesses, their conduct on the stand and the knowledge they had of the value of the property when sold together with the fact that no evidence was produced that Mr. McCormick after the effort George Shaffer made to obtain the property, made airy demand or effort to get the balance of the property purchased at the sale; I find that the value of the property he received was in excess of the amount of the debt, interest and costs of the judgment at the time of the sale.” It is impossible for an appellate court to know the character of the witnesses produced, to judge of their conduct upon the stand, of their knowledge of the facts as to which they testify, of their memory and candor, hence the reasonableness as well as the necessity of the rule so often laid down and so fully established “ that an appellate court will not disturb the findings of fact made by an auditor and confirmed by the court below, except in cases of fraud, of clear mistake or of manifest lack of due consideration: ” Becker v. Yeager, 1 Pa. Superior Ct. 107; Lewis’s Appeal, 127 Pa. 127; Hess’s Estate, 150 Pa. 346. The finding of fact by the auditor in this case was based upon competent and sufficient evidence, was duly considered and has been approved by the court below. We can find nothing in a careful review of the facts of the case which will warrant us in disturbing the conclusion reached. The decree of the orphans’ court is, therefore, affirmed and the appeal dismissed at the costs of the appellant.


text:
    Overseers of Liberty Township, Centre County, Appellants, v. Overseers of Castanea Township, Clinton County.

      Appeals — Removal of paupers — Jurisdiction, Superior Gt.

    In appeals from the decree of the quarter sessions touching an order of removal of paupers, nothing but the record and that which has been included in it can be considered by the appellate court.

      Practice, G. P. — Poor law — Exceptions—Record.
    Under the Act of March 16, 1868, P. L. 46, a writ of error is allowed to the decision of the court of quarter sessions on points of evidence and law which have been specifically excepted to and brought upon the record as directed. Evidence and rulings of the court not thus made a matter of record remain with the opinion, beyond the reach of the appellate court.
    In the case at bar the opinion concludes with the decree of court which is followed by an exception in these words : “ Counsel for plaintiffs except to the opinion of the court and pray that a bill be sealed.” Answer. “Bill sealed.” This is the only exception.
    Argued Feb. 11, 1897.
    Appeal, No. 39, Feb. T., 1897, by
    plaintiffs, from order of Q. S., Centre Co., Nov. Sess., 1895, No. 41, affirming appeal from order of removal and discbarging said order of removal.
    Before Wickham, Beaver, Reeder, O ready and Smith, JJ.
    Affirmed.
    Appeal by Overseers of the Poor of Castanea Township, Clinton County, Pa., from an order of removal, so far as it relates to Charles P. Aikey and Samuel M. Aikey. Before Love, P. J.
    The facts sufficiently appear in the opinion of the court below, which is as follows: This is an appeal by the overseers of the poor of Castanea township, Clinton county, from an order of removal taken out by the overseers of Liberty township, Centre county, removing Charles Aikey and Samuel Aikey from Liberty township to the poor district of Castanea township. One Clara Wantz was married to one Irvin Aikey about June 27, 1880. They lived together about fourteen months when •Irvin Aikey left his wife. In 1885, some time in February, he' took up with another woman, and married her, without having been divorced from his first wife. Sept. 10, 1888, he obtained a decree in divorce from his first wife, and then on October 11, 1888, remarried the woman he had been living with since 1885.
    Clara Aikey, it would appear from the record of the justice, married a man by name of Elijah Saxton on or about July 29, 1883. They did not live together a full year.
    Of course, the marriage of Irvin Aikey in February, 1885, and the marriage of Clara Aikey to Saxton, July, 1883, were void, and are so to be treated in the consideration of this case.
    Clara Aikey was born at Eagleville, Centre county, and has practically lived there all her life. Irvin Aikey, when he left, lived in Clinton county, part of the time near to where his first wife was living, and most of the time not more than fifteen miles away. The paupers in question in this controversy .were born at Eagleville, Liberty township, one Charles about August 13, 1885, and Samuel about July 27, 1888.
    Both children were born during the period of lawful wedlock between Irvin Aikey and his first wife. It would, therefore, be presumed that the children were legitimate.
    The evidence, however, offered by the overseers of Liberty township shows that Mrs. Aikey lived in a state of adultery with Elijah Saxton and shows that Irvin Aikey was living separate and apart from her when the children in question were begotten and born.
    And while a wife is not competent to prove the non-access of her husband in order to bastardize her offspring, yet she may testify as to her commission of adultery, and in this case the overseers of Liberty township offered the evidence of Mrs. Clara Aikey and proved by her the non-access of her first husband, Irvin Aikey. No objection was taken to the testimony, nor were we asked to exclude it from our consideration. Then Mrs. Ella Aikey, the second wife of Irvin Aikey, testified that from 1885, when they were first married, Mr. Irvin Aikey lived with her every day until his death. Other witnesses testified that they had never seen Irvin Aikey at Eagleville, the residence or home of Clara Aikey, his first wife, after they had finally separated. It is conceded that Irvin Aikey acquired a settlement in Castanea township, Clinton county, in the years 1891 and 1892, which was some three or four years after he had been divorced absolutely from his first wife.
    If the children were clearly legitimate we think they would acquire a settlement in said township by virtue of their father’s settlement, notwithstanding it was acquired after he had been divorced. But we think under the evidence offered by the overseers of Liberty township they have themselves clearly shown that Irvin Aikey was not the father of the two children in question. That being so, they are illegitimate, and do not acquire a settlement from Irvin Aikey, but their settlement is that of their mother, Clara Aikey, or Saxton, whose settlement was in Liberty township. We are, therefore, of the opinion that the paupers, viz: Charles and Samuel Aikey (named in the testimony taken as Charles and Samuel Saxton) did not have a settlement in Castanea township, and that the appeal from the order of removal should be affirmed.
    April 12, 1897:
    And now, January 5, 1897, the appeal is affirmed and the order of removal discharged at the costs of the poor district of Liberty township.
    To which the overseers of Liberty township except, and bill sealed.

      Errors assigned were (1-14) to the rulings and findings of law in the opinion of the court and to the decree by it entered.

      Clement Dale, with him A. O. Furst and A. A. Dale, for- appellants.

      C. S. Me Cormiek, for appellees.
   Opinion by

Beaver, J.,

The right of appeal from the judgment or decree of the court of quarter sessions in the determination of appeals from orders of removal, in pursuance of which paupers have been removed from one district to another, is purely statutory. It is provided by the act of the 16th of March, 1868. The remedy is to be pursued in strict accordance with the provisions of this act. The act has been construed and the mode of procedure under it carefully pointed out by the Supreme Court whose decisions therein have been followed by this court in several cases. In Lower Augusta v. Selinsgrove, 64 Pa. 166, the Supreme Court said: “ The general exception to the opinion of the court below is not an exception to any point of evidence or of law.” The provisions of this act of assembly have been constrnecl by this court in Spring Township v. Walker Township Overseers, 1 Pa. Superior Ct. 383, and again in Overseers of Elderton Borough v. Overseers of Plumcreek Township, 2 Pa. Superior Ct. 397. In the latter case there was a general exception to appellants and it was held that “ although the appellants’ paper-book contains seven assignments of error on questions of law and fact, none of them can be considered by this court, for the reason that there are no exceptions to support them.” In both of these cases the uniform decisions of the Supreme Court are fully collected and considered. It is not necessary, therefore, to requote the authorities at length. It is sufficient for the purpose of this case to say that, following the uniform decisions of both of our courts of appellate jurisdiction, we must hold that the thirteen assignments of error presented by the appellants for our consideration have nothing in the record which can sustain them. The court below was not asked to find specific facts nor were any prayers offered for specific rulings upon points of law. No bills of exception were presented to the court, asking exceptions as to findings of fact or rulings of law by the court. The provisions of the act, under which the appeal was taken and the uniform and very numerous decisions of the courts in regard to the same were entirely disregarded. Although not necessary, it may be well to say that in our opinion there was competent and sufficient evidence in the case to sustain the conclusion reached by the court below. The decree is, therefore, affirmed and the appeal dismissed at the costs of the appellant.