
    JOHNSON & SNYDER’S APPEAL.
    Where a report of bridge inspectors was procured by fraud, the Court may open it and refer it back for correction six months after it was filed in Court and the money paid.
    Appeal from the Quarter Sessions of Delaware County.
    On June 1,1874, a petition for a county bridge over Naylor’s Run, in Upper Darby Township, was presented to the Court, and by proceedings thereon a bridge was erected. On Sept. 29, 1875, the petition of the County Commissioners was presented requesting the Court to appoint six inspectors to inspect said bridge. Same day inspectors appointed. On December, 6, 1875, five of the six inspectors reported that they had viewed and examined the said bridge and found it was not completed according to contract, as respects the construction of the’ arch, and the size of stones used, and that there should be a deduction of $250 from the price of the same. Same day report confirmed nisi. On December 27, 1875, the Commissioners paid the balance to the contractors, Johnson & Snyder, after deducting the $250 aforesaid. On June 17, 1876, the petition of George S. Garrett, Joseph Hibberd and Nathan Garrett, three of said inspectors, and O. W. Yarnall, A. C. Lukens and E. H. Engle, the- Commissioners of the County of Delaware, then in office, was presented to the said Court, referring to the appointment of said inspectors by the Court, and to their said report made on the 6th day of December, 1875, and setting forth that the attention of said inspectors having recently been called, by the said County Commissioners, to the had condition of said bridge, the said inspectors did revisit said bridge and found the mortar dashing off the stone work, so they were enabled to get a view and examination of the material used and the workmanship done, which they were prevented from getting at their view of inspection, and further found that the material used was bad and unfit for use in any bridge for county purposes, and that the work was done in a very unworkmanlike manner, the stone not being of proper quality, and the walls and stone work erected with an insufficient quantity and poor quality of mortar, and that from the improper foundation laid it has given way under the walls, and the arch from its improper erection and work, appears to be giving way and in a dangerous condition and unsafe to open to public travel, and that the Commissioners of said county are compelled to tear out and rebuild a considerable portion of the work of said bridge at a great additional expense to the said county, to render it safe and fit for public travel; and that by reason of the contractors having covered over the stone work and their bad and defective workmanship on said bridge with the coating or dashing of mortar, the said inspectors were deceived and defrauded into signing and making such report as they made to said court as aforesaid, and that could they have known or seen the manner in which said bridge was constructed, as they found it upon their last said examination, and of the bad material and workmanship, they either would have entirely condemned the said bridge and workmanship, or would have made a very much greater reduction in sum from the contract price, than made in their said report, and therefore praying the Court to open the confirmation of the report of said inspectors, and permit them to make a re-inspection of said bridge, and a report of same to the said Court.
    The Court granted a rule to show cause why the report should not be be opened ; which rule was subsequently made absolute on December 4,1876, in the following opinion by
    Clayton, P. J.:
    All corporations must necessarily be represented by agents. As a rule, counties are represented by the Commissioners, who, like other agents, are responsible to their principal for mal-administration of their trust. In the erection of bridges, the law has wisely required the county to be represented by two sets of agents to wit, the Commissioners, elected by the people, and the inspec - tors, to be appointed by the Court. They are entirely independent of each other. The Commissioners make the contract and superintend the work; but before the.price is paid the inspectors are required to inspect, examine and approve of the work. The Act of Assembly has fixed no time at which they must report to the Court; should they unreasonably delay it, they would be either discharged or required to report within a specified time. Their report, when presented to the Court for confirmation, can be approved, set aside, or recommitted ; and if for any reason it should appear to be irregular or void, it could, of course, even after confirmation, be opened or set aside ; especially so if it should appear to the Court that a plain mistake had been made, or a palpable fraud pepetrated. Fraud has been defined to be any trick or artifice employed by one person to induce another to fall into an error, or detain him in it. It may consist either in actual misrepresentation or in concealment of a material fact, and, when clearly established, it avoids and vitiates everything it touches, ab initio, both at law and in equity, whether the object be to deceive the public or third persons. Vide Bouvier’s L. D., Chitty on Con., *679, and Ludlow vs. (Jill, 1 Chip., 63. The fraud of an authorized agent equally avoids an act done by him for his principal} Fitzherbert vs. Mather, 1 L. B., 12, and Comfort vs. Fowke, 6 M. & W., 358.
    In the case of Hill vs. Cray, 1 Stark B., 4.34, Lord Ellenborough held that where the agent of a vendor knew the purchaser of a picture was laboring under a false impression with respect to the picture, which materially influenced his judgment, though the agent had done no act to create the delusion, yet permitted the purchaser to buy the picture without removing it, it was such fraud as to render the sale void. Where a decree of the House of Lords had been obtained by fraudulent collusion of the parties, in order, by means of that decree, to defeat the object of public justice, it was held to be void, and might be treated as a nullity by the Courts ; yet, relief should be sought, in the first instance, in the House to set aside the decree; Shedden vs- Patrick, 29 E. L. & Eq., 56. This case would seem to rule the one now before us, for, while this report might, perhaps, be treated as a nullity, the proper mode, as indicated by the case above cited, is to apply, in the first instance, to have it set aside. The contractors must have known that they had not complied with the terms of their contract, and that the inspectors could not know, irom an inspection of the work, that a dry wall, instead of a mortar one, had been built, especially as the outer surface had been dashed and plastered with mortar. They absented themselves when the work was being inspected, and, as a consequence could not be interrogated by the inspectors. The County Commissioners must also have known that the contract had not been complied with. If they did not know that dry, instead of mortar walls had been built, they should have known it, and it was fraud to conceal 'it from the inspectors. Only two of the Commissioners have been examined by the contractors, and it is fair to presume that the one not called could not testify in their favor. Their counsel contends that the time which has elapsed since the filing of the report should act as a bar to the present application ; but it is well settled that length of time is no bar to fraud, it is however, a circumstance always to be taken into consideration. In Irwine’s Ap. peal to the House of Lords, reported in 3 E. L. & Eq., 17, it was held, that in a clear case of concealment of something, the parties concealing were bound to disclose. A deed thirty-nine years old, executed by reason of said fraudulent concealment, would be set aside, even after the original parties were all dead.
    The county, by her present Board of Commissioners, now joins with the inspectors in the application to open the report, upon the ground of fraud and deception practiced upon the county and the inspectors appointed by the Court to examine the work. The evidence sufficiently establishes the material allegations of the petition, and the report of the inspectors, and approval thereof by the Court, is opened and set aside, and the matter is recommitted to the inspectors to make final report thereon, on or before the next term of the Court.
    Johnson & Snyder then appealed, complaining of the action of the Court in opening the report.
    
      J. M. Broomall, Esq., for appellants
    argued that by the Act of June 13, 1836, Sect. 42, P. Laws, 560, no appeal was given to the County ; and after the settlement by the Commissioners and inspectors the matter is ended. The tribunal of the bridge inspectors is an extraordinary one and its powers are therefore to be strictly coustrued. When its report was made, it was functus officio) and could not again be resuscitated. To submit the matter again to this board ot bridge inspectors, three of whom have charged the contractors with fraud, is not giving the contractor a fair tribunal. If the facts are as claimed, the county has a remedy by an action on the case for fraud and conspiring to cheat the county.
    
      George E. Darlington, Esq , contra,
    
    argued that the first report of inspectors was obtained by fraud, and can be set aside; Ludlow vs. Gill, 1 Chipman, 63; Bacon’s Abridgement, 196, 201. Though the county may have a remedy by action for the fraud ; yet the the proper mode is to apply to the Court to set aside the report; Shedden vs. Patrick, 29 E. L. & E., 56. “It is a general rule that “when an act is done or contract made under a mistake or ignorance of a material fact, it is voidable and relievable in equity Miles vs. Stevens, 3 Barr, 37. Besides the appellants got their money from the former County Commissioners, who were in league with them, without waiting for absolute confirmation, or without a rule to show cause as provided for in Sect. 41 of Act of June 13, 1836, P. Laws, 560.
   The Supreme Court affirmed the decision of the Court below on March 28, 1877, in the following opinion:

Per Curiam.

Before payment of the contract price for the erection of a county bridge, it is made the duty of the Court of Quarter Sessions to see that the contract has been properly performed by the contractors. Eor this purpose, the Court appoints inspectors to view the work, and compare it with the contract, and make report to the Court. At the very foundation of the performance of the duty of inspection lies the ability of comparing the execution of the work with the terms of the contract. If the contractors by fraud conceal defects from examination, and thus prevent an honest inspection, which would discover their non-performance of the terms of the contract, and the report thus procured were to be approved, the county would be without remedy, if no power existed in the Court to set aside the confirmation. We are therefore of opinion, it is no abuse of the power of the Court to set aside its order of confirmation when the iraud is discovered, in order to let the county into whatever remedy it may have to recover money paid under the fraudulently procured decree. The decree otherwise would stand in the way of the county.

Proceeding affirmed.  