in the sum of $3,000.00, conditioned that LANCASTER LAW REVIEW. the said H. M. Klugh would faithfully collect the taxes embraced in said VOL. XXXII.] FRIDAY, JAN. 15, 1915. [No. 11 duplicate and would pay the same into Under the School Code of May 18, 1911, P. L. 309 the report of the auditor unappealed from showing taxes collected and not paid over is conclusive against a tax collector of a district of the fourth class and his surety, and therefore in a suit by the school district against such collector and his surety for taxes collected, an affidavit of defense which merely avers payment without denying that the accounts were regularly audited and the report unappealed from is insufficient. Where payment is relied on as a defense the affidavit should set forth the time, manner and amount of payments. It is not proper practice to have an affidavit of defense signed by the attorney for the defendant, and only the jurat signed by the defendant. Such affidavit is not good unless an allegation is made of inability or other sufficient reason why it was not signed by the defendant. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster County, September Term 1914, No. 33. H. Frank Eshleman, for rule. H. Edgar Sherts and John A. Nauman, contra. January 9, 1915. Opinion by LANDIS, P. J. the hands of the proper treasurer of said district according to law, and settle up said duplicate with said district on or before the first day of June, 1914. It is alleged that, at the end of the fiscal year, the accounts of said Klugh were duly audited by the auditors of the said township, as provided for in section 2,607 and 2,608 of the School Code, and that the auditors found in his hands the sum of $1,051.84 due and owing by him to the treasurer, and that no appeal has ever been taken from said finding. It is also asserted that the amount thus ascertained to be due remains as yet unpaid, and it has not been paid to the school district, although frequently demanded. As against this, but one essential fact thus set forth is denied by Harry H. Benedict, and this is the general statement that H. M. Klugh turned over and paid to the plaintiff all school taxes collected by him for the year 1913. We do not think that that affidavit of defense is sufficient. It will, in the first instance, be observed that it is not denied that the accounts of Klugh were regularly audited and that a balance was ascertained to be in his hands. Nor is it disputed that no appeal was ever taken. The School Code of May 18, 1911, P. L. 309, provides that the accounts of the school districts of the fourth class clares that, "in any school district of shall be audited, and section 2,627 dethe fourth class, if any sum is charged against any person or persons by auditors thereof, and their report containThe plaintiff, under the School Code, ing such fact is not appealed from is a corporation, embraced within school as herein provided, said auditors shall districts of the fourth class, and, as such, promptly, within thirty days after the it levied and assessed a school tax on filing of such report, make a certificate May —, 1913, for the fiscal year begin- stating the name of the district and the ning the first Monday in July, 1913, and name of the person or persons charged the same was entered on the proper with any sum or sums, and the amount duplicate for that year. It must be taken or amounts thereof, certifying the same as true, for it is not denied, that H. M. to the prothonotary of the Court of Klugh was duly elected collector of Common pleas of the county in which taxes in Pequea Township at the elec- the district is situated, or in which the tion held in November, 1913, and Harry school buildings of the independent disH. Benedict became surety on his bondtrict are located; and the prothonotary of said Court shall forthwith enter a judgment thereon, in favor of said school district and against the person or persons therein charged with the amount thereof, and, when so entered, the same shall be a valid judgment in favor of the school district against the person or persons charged therein with the same, which judgment, together with costs, shall be collected by said district for its use and benefit." The audit was, therefore, conclusive as against Klugh, and it follows that it was equally so against his surety. It, therefore, does not lie in the mouth of Benedict to assert that Klugh, his principal, has paid over all the taxes collected by him for the year 1913, when the auditor's report, unappealed from, shows that he has not done so, but that the amount claimed in this suit was collected and not paid over. The affidavit of defense is also clearly insufficient for another reason. The fense therein set forth is entirely too general. Allegations of payment must be particular as to time, amount, manner of payment, and to whom paid. In Bube v. Hauck, 16 LANC. LAW REVIEW, 412, this Court held that, when payment is relied upon as a defense, all the circumstances of the alleged payment must be set forth in the affidavit of defense with certainty and particularity, and not generally and inferentially that "a mere general averment that the debt has been paid or that the defendant is not indebted to the plaintiff is insufficient." In Weidman v. Frank, 19 LANC. LAW REVIEW, 30, it is said that, "where payment is relied on as a defense, the affidavit should set forth the time, manner and amount of the payments"; and in Eaby v. Stambaugh, 21 LANC. LAW REVIEW, 365, that, "in a suit on a book account, an affidavit of defense is vague, evasive and insufficient which alleges payments, but fails to give the dates and amounts thereof, or the amount of a receipt alleged to have been omitted from the plaintiff's accounts.' See, also, Stockley . Riebenack, 12 Sup., 169. Leas v. Hafer, 39 Sup., 160; Hiestand v. Williamson, 128 Pa., 122; McCracken v. First Reformed Presbyterian Congregation of Pittsburgh, III Pa., 106. We wish, also, to call attention to the fact that the affidavit of defense is signed by the attorney for the defendant, and only the jurat is made by the defendant. This does not seem to us to be good form or proper practice. An affidavit of defense made by an attorney, without allegation of inability or other sufficient reason why it was not made by the defendant, is not good. See Safety Banking & Trust Co. v. Conwell, 28 Sup., 237; Phillips v. Allen, 32 Sup., 356. We, therefore, for the reasons given, make the rule absolute, and order judgment to be entered against Harry H. Benedict, the defendant, for the sum of $1,051.84, with interest from August 13, 1914, making, in the whole, $1,077.61. Rule made absolute. years. In an action against township supervisors for damage for diverting surface drainage there is no question of the exercise of judgment on the part of the supervisors as to where water should flow, and it is proper to refuse a point that if the supervisors acted in accord with their best judgment the evidence of neglect must be clear. In such case it is not error to permit witnesses to testify to conditions before and after the road was repaired. Where, in such case, there is evidence of diversion of the surface drainage and injury road the case is for the jury. to the plaintiff thereby after repairs to the Rule for judgment n. o. v. and rule. for a new trial. C. P. of Lancaster Co., August Term 1913, No. 65. H. Edgar Sherts and Harnish & Harnish, for defendant and rules. J. W. Denlinger and John E. Malone, contra. January 9, 1915. Opinion by HASSLER, J. The plaintiff owns land located along heim in this case by reason of breakers had kept water from flowing upon the Shaub property than naturally would have flowed there, and had done this for many years, it did not prevent it from subsequently letting the water flow into its natural water course over the Shaub property, if that was its natural course. Now the question for you to consider here is, did the supervisors of Manheim Township cause more water to flow on the Shaub property than would flow there naturally? a public road in Manheim Township. | other words, if the Township of ManIn his statement, he claims it was injured inter alia because the defendant did turn, direct and run the water from its natural channel and course *** and did break and run the same in, upon, and on the fields*** premises and plantations of the plaintiff, &c." At the trial it appeared that the water, alleged to be thus diverted, was that which gathered on the public road, along which the plaintiff's land is located. The trial resulted in a verdict in the plaintiff's favor, and we are now asked to enter judgment for the defendant n. o. v., or to grant a new trial. In our charge to the jury we instructed them as to the rights and duties of both the plaintiff and defendant as follows: "It is the law in Pennsylvania that where one owns land lower than adjoining land he is burdened with the flow of the water that gathers on the surface of the higher land. The owner of the higher land, however, cannot flow upon the lower land any greater quantity of water than naturally gathers on his land, nor can he cause it to flow upon the lower property at any other place than it would naturally flow. If he does do these things, or either of them, and the lower property owner is injured, the upper property owner is liable in damages for such sum as will compensate the lower property owner for any injury thereby sustained. The same rule applies to public roads. The supervisors, or township authorities, having control of public roads, may flow, or cause to flow, the water which gathers upon its roads in its natural water course upon the land of adjoining property holders. They may macadamize their road, but they cannot flow water at any other place than where it flows naturally, nor in any greater quantities than it would flow naturally upon the property of those owning the property adjoining the road. The fact that drainage for many years by pipes or drains or breakers may divert the water from its natural water course and prevent it, for a time, from flowing upon land where it would flow naturally does not deprive the township of the right subsequently to let the water flow back into its natural course. In These views are in conformity with the law as decided in numerous cases, among which are Kauffman v. Griesemer, 26 Pa. 407, Martin v. Riddle, 26 Pa. 415 (Charge of Lowrie, J., to the jury); Hays v. Hinkleman, 68 Pa. 324; Rhoads v. Davidheiser, 133 Pa. 226; Meixell . Morgan, 149 Pa. 415; Taylor v. Canton Twp., 30 Sup. 305; Bellas v. Pardoe, 2 Mona., 355. The jury found that the defendants did divert water from its natural water course to and upon the plaintiff's land to his injury. In disposing of the rule for judgment non obstante and the reasons for a new trial, which claim that the verdict is against the law and the evidence and the charge of the Court, it is only necessary to ascertain whether there is any testimony to justify the findings of the jury, as we are satisfied that they were correctly instructed as to the law. It was shown by plaintiff's witnesses that the defendant's supervisors repaired the road passing his house about three years ago. They raised it in some places, macadamized it and removed some breakers and pipes. Prior to these changes surface water flowed down on both sides of the road, some of it away from plaintiff's property and some of it over and upon it. This condition existed for many years. No injury was done to plaintiff's land by the quantity of water that flowed upon it prior to the changes referred to. Since then larger quantities of water flow upon it. This has not only destroyed the growing crops, but washed a large gulch or ditch in it. One witness, Frank Kop, a surveyor, describes in detail the natural confor mation of the land along and adjacent | clear in order to involve the Township for which they act in damages." to the road from the turnpike down to plaintiff's house. He testified that none of the water except that which gathers about thirty yards up from the plaintiff's property flows in its natural course upon his land, and that much water, which does not flow there in its natural course, flows there since the road has been repaired. The plaintiff testified that water has been diverted from its natural course to and upon his property since the road was repaired. Harry Streaker said the land on the side of the road opposite the plaintiff's property is naturally lower, and is the natural course of much of the water which now flows over the plaintiff's land. Augustus Hilton said that the "lay of the land pitches towards the other side", opposite plaintiff's land, and that much of the water would flow naturally on that side of the road. John Lipp says that the natural condition of the land without regard to the road would drain the water to the side opposite the plaintiff's land. George Yost said both sides of the road are low, not much difference, and that much of the water would naturally drain away from plaintiff's land. The jury viewed the premises, saw how the land lay and what the natural course of the water was. The testimony of some of these witnesses was weakened by cross examination and was contradicted by witnesses for the defendant. All that, however, was for the jury's consideration. We cannot in view of all this testimony say that there was nothing to justify the jury in their finding that the defendant did divert water from its natural course upon plaintiff's land. We, therefore, dismiss the rule for judgment non obstante veredicto, and overrule the first, second, third, fourth, sixth, seventh and twelfth reasons for a new trial. The fifth reason is as follows: The Court erred in refusing to affirm defendant's fifth point, which was as follows: "If the supervisors of the defendant Township in the discharge of their public duty acted according to their best judgment in the construction of the road, the evidence of neglect or wrongdoing on the part of the defendant must be 66 Defendant's counsel relies on the case of Taylor v. Canton Township, 30 Sup. 305, to show that our answer was erroneous. In that case Judge Beaver said, But where public officers in the discharge of public duty act according to their best judgment, the evidence of neglect or wrongdoing ought to be clear which would involve the municipality for which they act in damages." That case is entirely different from this one. There the question of the supervisors' negligence, in wrongfully constructing a bridge across a public road for the purpose of getting rid of overflow water, was at issue. When the supervisors exercised their best judgment as to how it should be done, the evidence should of course be clear that they made a mistake or were negligent. This rule, however, does not apply where the question is whether water has been diverted from its natural course. That is not a question of the exercise of judgment on the part of supervisors. They have no power to divert it from its natural course, so that no question can arise whether they exercised their discretion as to how to do it, whether negligently or otherwise. No higher degree of proof, therfore, is required than is necessary in proving all other facts. We, therefore, think that no error was committed in refusing to require the plaintiff to prove his case by clear evidence. The eighth, ninth, tenth and eleventh reasons complain that we erred in permitting witnesses to testify to conditions before and after the road was repaired. There was much testimony showing. that the natural course of much of the water was on the side of the road opposite the plaintiff's land, and that prior to the improvement of the road it flowed there. After these changes, which were fully described, were made, it all, or nearly all, flowed upon the plaintiff's land. Under these circumstances we do not see how the jury could have understood the effect of the changes if the witnesses had not been allowed to describe them before and after the road was repaired. We discharge the rule for a new trial. Goll v. Denlinger et al. Principal and agent-Scope of authority mortgage. Where the owner of a property subject to a mortgage pays to an attorney-at-law who was attorney for the mortgagee interest for five years, and three payments on account of the principal two of which the mortgagee receipts for on the record, and never dis-payments avowed the attorney's authority the mortgagee will be compelled to give credit for a subse respectively, due, to April 1, 1910, to William T. Brown, an attorney-at-law, who was the attorney of William H. Goll. He also paid to Brown the following amounts on account of the principal of the mortgage, namely: On March 30, 1907, $100.00; on September 28, 1907, $200.00; on September 30, 1908, $300.00; and on The three March 31, 1909, $500 00. of $100.00, $200.00 and $300.00, were paid over by Brown to Goll, and, as to the first two payments, Goll, on October 2, 1907, entered in the Recorder's Office of this county a receipt for $300.00. While he received the next payment of $300.00 from Brown, he entered no satisfaction of record for it. The last payment of $500.00 was never handed over by Brown to Goll, and it is concerning it that the present controversy arises. Brown, as attorney for Goll, gave Hoeltzel receipts for all payments, principal and interest, made by him on account of the mortgage. B. J. Myers, contra. Hoeltzel never saw the records in the Recorder's Office, and did not know that January 9, 1915. Opinion by LANDIS, credit had not been given him on said quent payment on account of the principal which the attorney failed to pay over to him. While one who transacts business with an agent is bound to make inquiry as to the extent of his authority this may be shown by his course of dealing ratified by his principal. Rule for judgment n. o. v. C. P. of Lancaster County, January Term 1914, No. 30. H. B. Lutz and IV. F. Beyer, for defendant and rule. P. J. of the plaintiff for the amount which he alleged was due on the said mortgage, to wit, $1,147.00, and, in order to hear the legal proposition fully discussed, granted this rule for judgment non obstante veredicto. records, until after trouble arose with The facts arising in this case are not William T. Brown. The amount adopen to dispute. On March 29, 1905, mitted to be due by the defendant upon William T. Denlinger gave to William the mortgage is $400.00, with interest H. Goll, the plaintiff, a mortgage for from April 1, 1910. Upon the trial, we $9,000.00, on certain premises num-directed judgment to be entered in favor bered Nos. 562, 564, 566, 568, 570 and 572 Freiberg Street, Lancaster City. This mortgage is recorded in the Recorder's Office of Lancaster County in Mortgage Book No. 104, at page 304, &c. On November 20, 1905, William T. Denlinger, by deed of that date, conveyed to John Hoeltzel the house and lot numbered No. 566 Freiberg Street. By an agreement dated November 16, 1905, recorded in Mortgage Book No. 109, page 129, it had been agreed, between William H. Goll and William T. Denlinger, that the amount due on each of the houses embraced in the said mortgage should be $1,500.00. Therefore, when Hoeltzel received his conveyance, he took it subject to a proportionate part of the said mortgage, to wit, the sum of $1,500.00. After John Hoeltzel obtained the title, he paid the interest on the mortgage of $1,500.00, or on the balance remaining V. It is a familiar principle that every one who transacts business with an agent is bound to make inquiry and inform himself as to the nature and extent of his authority. He cannot plead ignorance or even misinformation by the agent himself. Zimmerman v. Floyd and Collins, 20 LANC. LAW REVIEW, 17. As was said, however, in Himes v. Herr, 3 Sup., 124, "the extent of an agent's powers depends upon the authority under which he acts. This may be shown by his written instructions or his course of dealing. It is true the public are not always bound by the private instructions of the agent, and may hold the principal responsible, though the particular acts |