Opinion by
Orlady, J.,
• We are confronted with twenty-five assignments of error in this case, and each is vigorously pressed upon the court for consideration. The majority however relate to findings of fact, which have been found by the commissioner, whose report is confirmed by the court below.
[522] The paper-book argument is not divided so as to apply separately to the specifications of error, which is a much more effective manner of presenting the argument, but it treats the whole subject in a general theme. We consider only the questions therein, which, to our mind, are material in determining the controversy.
In Cambria Co. v. Madison Twp., 138 Pa. 109, the Supreme Court determines the practice in cases of this character: “If there is anything settled in this state, in regard to this class of cases, it is that we cannot review them upon the merits ; that we can review such cases only upon such points of evidence or of law as have been excepted to; and that a general exception to the opinion of the court is not an exception to a point of law or evidence: Lower Augusta v. Selinsgrove, 64 Pa. 166; Moreland Twp. v. Davidson Twp., 71 Pa. 371. If the appellant desired to have its case reviewed here, the court below should have been called upon to answer specifically the points submitted. An unsatisfactory answer or a refusal to answer them, would have been equally the ground of exception; we cannot blame the learned judge below for not doing what he apparently was not asked to do.”
In Lower Augusta v. Selinsgrove, 64 Pa. 166, it is said that, “ a point of evidence cannot by any latitude of construction be considered to mean whether the entire testimony makes out the case or proves the facts. It means evidently whether a witness offered is competent or whether evidence offered is competent or relevant as tending to prove any fact material to the issue. A point of law is a question of law applicable to the facts as they may be found by the court which the party may propose in the shape of a written point and require an answer.”
This has been followed in all like cases in the Supreme and this court: Spring Twp. v. Walker Twp., 1 Pa. Superior Ct. 383; In re Lunacy of Christy, 2 Pa. Superior Ct. 259; Elderton Boro. v. Plumcreek Twp., 2 Pa. Superior Ct. 397.
The facts as found by the commissioner and the learned judge below are based upon ample evidence and we cannot review them upon the merits.
, Hettie A. Keatley in 1876 having a complete legal settlement in the borough of Strattanville, Clarion county, removed to the borough of Edenburg, and began housekeeping with her widowed [523] mother in a property, the title to which, by deed dated June 30, 1876, was in her sister Jane Mendenhall, who in 1876 or 1877 became one of this family on account of the death of her husband. The mother died March 18, 1878, after which time the sisters continued to live together.
In 1880 Miss Keatley received $2,200 on the death of a relative in Ohio, and on December 24 of that year she purchased with her own funds and took title in her own name by deed duly recorded, to a lot of ground adjoining the Mendenhall lot on the north. The properties were used together without a division fence. Thej’- were assessed as one property in the name of Jane Mendenhall, but the taxes on the two properties for several years though assessed in the name of Jane Mendenhall were paid by Miss Keatley. The two sisters resided together in the Jane Mendenhall house sharing their living expenses without keeping accounts, though Miss Keatley used $1,500 of her own funds to pay the debts of her sister Jane Mendenhall.
Mrs. Mendenhall died February 4, 1892 and Miss Keatley continued to reside in the same property until she was removed to Strattanville. After the death of Mrs. Mendenhall the taxes against the Hettie A. Keatley lot were assessed against and paid by her. “1893, county $.25, school $.60, borough, $.15, poor, $.15, total $1.15. Paid to tax collector of Edenburg borough, December 1, 1893, and receipt by him to Hettie A. Keatley therefor.”
She paid similar taxes for 1894 to the same person December 11, 189J¡., also for 1895 on September 12, 1895. The lot of ground is still owned by Miss Keatley, who is an educated unmarried woman, a teacher of fifty years’ experience, by which art and some literary work she supported herself until the summer of 1894, when she became ill and was obliged to abandon her work.
She had in her home plenty of necessaries to meet her immediate wants and was not in debt inore than ten dollars. Her only anxiety was in regard to the future.
On August 6, 1894, she was visited by the then burgess of the borough, who was a warm personal friend, and her situation was confidentially talked over. “ Mr. Corlett advised her to accept some assistance from the poor fund of the poor district of Edenburg borough. She resented the suggestion. The inter[524] view however resulted iu her agreeing to accept some assistance if the matter were kept quiet. She did not understand that it meant going on the poor books as a pauper. In fact she knew nothing of the modus operandi of getting relief in this way and did not know for six months thereafter that she was, in any manner a pauper on the books of the poor board.” After this visit on the same day Mr. Corlett made complaint under oath before a justice of the peace of the borough, “ that one Ilettie A. •Keatley residing in said borough, is poor and indigent and unable to procure the necessaries of life by reason of sickness and other infirmities.” Thereafter she received money at different times and in different amounts to date of March 11, 1895 aggregating $72.00 for which she receipted to an overseer of the poor of the borough, and which was regularly entered and charged to her on the poor book. In addition to the assistance furnished by the borough, she received contributions from friends from date of August 1, 1894 to August 1, 1895, the sum of $100.50 and some small amounts received for fancy work and for books sold of which she is the author.
The justice who received the complaint, made out an order of relief, using a form which assumed an admitted settlement in the district where it was issued, and had it signed by another justice and delivered it to an overseer of the poor. After some indefinite time the overseers concluded that the form of the relief order was not proper and one of them returned it to the justice who had issued it, so as “ to get another order of relief which should recite that the pauper had not gained a-settlement in that district.” The original order was never afterwards seen and it has been treated as lost. The accommodating justices issued another order of relief, and delivered it to the overseers, some time in the spring of 1895 though it bears date of August 6, 1895. On April 5, 1895, the borough of Strattanville was notified by the overseers of the poor of Edenburg borough that “ Hettie A. Keatley formerly of Strattanville (a cripple) has been placed in the hands of the poor overseers of this borough on August 7, 1894. Upon investigation we find she is not a resident here under the poor laws, and claims she had a residence in Strattanville before coming here. This is to notify you of the fact as we do not want to put you to any unnecessary expense of us taking out an order pf removal.”
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Opinion by
Orlady, J.,
• We are confronted with twenty-five assignments of error in this case, and each is vigorously pressed upon the court for consideration. The majority however relate to findings of fact, which have been found by the commissioner, whose report is confirmed by the court below.
[522] The paper-book argument is not divided so as to apply separately to the specifications of error, which is a much more effective manner of presenting the argument, but it treats the whole subject in a general theme. We consider only the questions therein, which, to our mind, are material in determining the controversy.
In Cambria Co. v. Madison Twp., 138 Pa. 109, the Supreme Court determines the practice in cases of this character: “If there is anything settled in this state, in regard to this class of cases, it is that we cannot review them upon the merits ; that we can review such cases only upon such points of evidence or of law as have been excepted to; and that a general exception to the opinion of the court is not an exception to a point of law or evidence: Lower Augusta v. Selinsgrove, 64 Pa. 166; Moreland Twp. v. Davidson Twp., 71 Pa. 371. If the appellant desired to have its case reviewed here, the court below should have been called upon to answer specifically the points submitted. An unsatisfactory answer or a refusal to answer them, would have been equally the ground of exception; we cannot blame the learned judge below for not doing what he apparently was not asked to do.”
In Lower Augusta v. Selinsgrove, 64 Pa. 166, it is said that, “ a point of evidence cannot by any latitude of construction be considered to mean whether the entire testimony makes out the case or proves the facts. It means evidently whether a witness offered is competent or whether evidence offered is competent or relevant as tending to prove any fact material to the issue. A point of law is a question of law applicable to the facts as they may be found by the court which the party may propose in the shape of a written point and require an answer.”
This has been followed in all like cases in the Supreme and this court: Spring Twp. v. Walker Twp., 1 Pa. Superior Ct. 383; In re Lunacy of Christy, 2 Pa. Superior Ct. 259; Elderton Boro. v. Plumcreek Twp., 2 Pa. Superior Ct. 397.
The facts as found by the commissioner and the learned judge below are based upon ample evidence and we cannot review them upon the merits.
, Hettie A. Keatley in 1876 having a complete legal settlement in the borough of Strattanville, Clarion county, removed to the borough of Edenburg, and began housekeeping with her widowed [523] mother in a property, the title to which, by deed dated June 30, 1876, was in her sister Jane Mendenhall, who in 1876 or 1877 became one of this family on account of the death of her husband. The mother died March 18, 1878, after which time the sisters continued to live together.
In 1880 Miss Keatley received $2,200 on the death of a relative in Ohio, and on December 24 of that year she purchased with her own funds and took title in her own name by deed duly recorded, to a lot of ground adjoining the Mendenhall lot on the north. The properties were used together without a division fence. Thej’- were assessed as one property in the name of Jane Mendenhall, but the taxes on the two properties for several years though assessed in the name of Jane Mendenhall were paid by Miss Keatley. The two sisters resided together in the Jane Mendenhall house sharing their living expenses without keeping accounts, though Miss Keatley used $1,500 of her own funds to pay the debts of her sister Jane Mendenhall.
Mrs. Mendenhall died February 4, 1892 and Miss Keatley continued to reside in the same property until she was removed to Strattanville. After the death of Mrs. Mendenhall the taxes against the Hettie A. Keatley lot were assessed against and paid by her. “1893, county $.25, school $.60, borough, $.15, poor, $.15, total $1.15. Paid to tax collector of Edenburg borough, December 1, 1893, and receipt by him to Hettie A. Keatley therefor.”
She paid similar taxes for 1894 to the same person December 11, 189J¡., also for 1895 on September 12, 1895. The lot of ground is still owned by Miss Keatley, who is an educated unmarried woman, a teacher of fifty years’ experience, by which art and some literary work she supported herself until the summer of 1894, when she became ill and was obliged to abandon her work.
She had in her home plenty of necessaries to meet her immediate wants and was not in debt inore than ten dollars. Her only anxiety was in regard to the future.
On August 6, 1894, she was visited by the then burgess of the borough, who was a warm personal friend, and her situation was confidentially talked over. “ Mr. Corlett advised her to accept some assistance from the poor fund of the poor district of Edenburg borough. She resented the suggestion. The inter[524] view however resulted iu her agreeing to accept some assistance if the matter were kept quiet. She did not understand that it meant going on the poor books as a pauper. In fact she knew nothing of the modus operandi of getting relief in this way and did not know for six months thereafter that she was, in any manner a pauper on the books of the poor board.” After this visit on the same day Mr. Corlett made complaint under oath before a justice of the peace of the borough, “ that one Ilettie A. •Keatley residing in said borough, is poor and indigent and unable to procure the necessaries of life by reason of sickness and other infirmities.” Thereafter she received money at different times and in different amounts to date of March 11, 1895 aggregating $72.00 for which she receipted to an overseer of the poor of the borough, and which was regularly entered and charged to her on the poor book. In addition to the assistance furnished by the borough, she received contributions from friends from date of August 1, 1894 to August 1, 1895, the sum of $100.50 and some small amounts received for fancy work and for books sold of which she is the author.
The justice who received the complaint, made out an order of relief, using a form which assumed an admitted settlement in the district where it was issued, and had it signed by another justice and delivered it to an overseer of the poor. After some indefinite time the overseers concluded that the form of the relief order was not proper and one of them returned it to the justice who had issued it, so as “ to get another order of relief which should recite that the pauper had not gained a-settlement in that district.” The original order was never afterwards seen and it has been treated as lost. The accommodating justices issued another order of relief, and delivered it to the overseers, some time in the spring of 1895 though it bears date of August 6, 1895. On April 5, 1895, the borough of Strattanville was notified by the overseers of the poor of Edenburg borough that “ Hettie A. Keatley formerly of Strattanville (a cripple) has been placed in the hands of the poor overseers of this borough on August 7, 1894. Upon investigation we find she is not a resident here under the poor laws, and claims she had a residence in Strattanville before coming here. This is to notify you of the fact as we do not want to put you to any unnecessary expense of us taking out an order pf removal.”
[525] On June 29, 1895 an order of removal was issued by two justices and Miss Keatley delivered to the Strattanville authorities. At which time she had in her possession $25.00 no part of which had been received from the poor fund of Edenburg.
The foundation of appellant’s case under the facts as found by the commissioner and the court must be a proper order of relief, and it is admitted that the first step taken on August 6, 1894 was; 1st, without the knowledge or consent of the alleged pauper; 2d, that she was described as residing in the borough of Edenburg under section 1 of the act of June 13,1836, which admitted a settlement therein and a consequent liability on the part of that district. It was attempted to save the borough of Edenburg from the effect of this blunder by returning the order of relief and having the same justices issue a new or second one, without a new or further complaint, under section 5 of the same act, to include a material fact not mentioned in the complaint or in the original order and contradictory of both. Under the 5th section the duty of the overseers was “ to furnish relief to every poor person within the district not having a settlement therein, who shall apply to them for the relief until such person can be removed to the place of his settlement.”
By this order of relief (issued some time in the spring of 1895 though dated August 6, 1895), it is sought to carry back the rights of Edenburg borough to August 6, 1894, so as to avoid the effect of paragraph 11 of section 9 of the act of 1886. A settlement may be gained in any district — “By any such person who shall be charged with and pay his proportion of any public taxes or levies for two years successively.” The taxes assessed against Hettie A. Keatley in the borough of Edenburg for 1893, were paid December 1, 1893, and for 1894 on December 11,1894 nearly four months before the Edenburg overseers received or acted upon the new order of relief. This is the earliest date they can claim it to have life, though wrongly dated four months later. Her name was placed on the poor book August 7, 1894, and by virtue of the complaint an order of relief was issued the day previous by the two justices under section 6 of the act of 1836, viz : — “ No person shall be entered on the poor book of any district, or receive relief from any overseers, before such person, or some one in his behalf shall have procured an order from two magistrates of [526] the county for thé same.” If proper order of relief is wanting, except in cases of emergency perhaps, the order of removal is void, and such legerdemain as. has been attempted in this case cannot be indorsed. The power of the overseers and justices is purely statutory and if they have no rightful jurisdiction, the question of jurisdiction may be raised at any time and in any form in which it may come before the court: Pantall v. Dickey, 123 Pa. 431. The appellant submits an argument of great research and learning to show that Hettie A. Keatley could do no act after August 7,1894 — when her name was placed on the poor book — to change her status as it then was, or to complete the gaining of a settlement by paying over her proportion of the taxes of 1894, although they were then (August-7, 1894), due and payable, and relies on the well decided principle— “ a person who is chargeable to and receiving aid, as a pauper, from one district cannot acquire a settlement in another, so long as that relation exists,” — but the vital question lies behind this principle., Was she a pauper in contemplation of law on December 11, 1894 and are the proceedings regular to sustain her in that relation ? While the commissioner finds as a fact that the first order of August 6, 1894 did exist as a paper, he says he so found from evidence “ of a very unsatisfactory and contradictory character, and tire testimony is justly discredited as unreliable.” ' He finds also that the order was never acted upon or used for any purpose and that it was returned to the authority issuing it. We accept the fact as the record has it, but whether existing or not, it cannot be contorted from an order based on the unauthorized act of a volunteer friend, secured ’ without the knowledge or consent of a person who at the time of issue had for sixteen years been an inhabitant of the borough and for twelve years the undisputed owner by fee simple title of unincumbered real estate, and household goods of the value of $300 in the district; and of which proceedings she did not have knowledge until after she had fully perfected her settlement by the payment of taxes for two successive-years, into a ■ proper relief order for a poor person in the district “ not having a settlement therein who shall apply to them for relief.” As in Gilpin Twp. Overseers v. Parks Twp. Overseers, 118 Pa. 84, this proceeding was instituted in the fear that the pauper might become chargeable, and the order of removal was [527] made without notice to the person to be affected by it, and as in that case must be held void. Was she a pauper as of August 6, 1894, was the question of fact to be adjudicated; yet without notice or knowledge she is secretly placed on, the poor book of the district in which she inhabits, to fix a settlement in a district in which she has not resided for sixteen years.
It is undoubtedly necessary that a pauper before he is removable should have become or be likely to become, chargeable to the district which undertakes to remove him, for unless this be the case justices have no jurisdiction and for want of jurisdiction an order of removal will be quashed: Cumberland Twp. v. Jefferson Twp., 25 Pa. 463.
Appellant urges: “ If any injury was done by the order of relief in this case an appeal should have been taken therefrom under section 44, act of June 16,1836.” Which order of relief, the one on which no action was taken, or the one bearing the erroneous date of August 6, 1895 ?
No one was aggrieved by the first, and neither of the parties aggrieved by the second knew of its existence until her settlement had been fixed by the payment of taxes for two successive years. The delay in giving notice to Strattanville of her cir-cumstances and condition was inexcusable. The partial relief began August 7, 1894, and her name was placed on the poor book, the overseer of Edenburg was informed September 5, 1894 that she had formerly a settlement in Strattanville and notice to Strattanville was first given on April 5, 1895 three months after she had perfected her settlement in Edenburg. By the negligence of the overseers of Edenburg she was permitted to remain and to perform all that the statute required to gain a new settlement (payment of taxes December 11, 1894) and it is too late for Edenburg to object that such a settlement was not gained. . This truth applies with the same force in this case as in Scranton v. Danville, 106 Pa. 446, Lawrence Overseers v. Delaware Overseers, 148 Pa. 380, and as in Central District v. Jenkins Twp., 4 Pa. Superior Ct. 16. The slightest inquiry on the part of the overseers of Edenburg of Miss Keatley or Strattanville would have revealed the true settlement. No such effort was made. It would be unfair therefore to visit the laches of Edenburg upon Strattanville.
Miss Keatley was not lawfully receiving aid as a pauper -prior [528] to December 11, 1894 and the cases of Lewisburg v. Milton, 18 W. N. C. 141, and Scranton v. Danville, 106 Pa. 446 and others, holding that a person who is chargeable to- and receiving aid as a pauper in one district cannot acquire a settlement in another, are not at all in conflict with the conclusions in this case.
The assignments of error from 1 to IB inclusive are to the findings of fact on the merits and are not considered. Assignments numbers 19 and 20 are not properly assigned and numbers 14, 15, Í6,.17, 21, 22, 23, 24 and 25 are overruled as in conflict with this opinion. The judgment is affirmed.