#### ROAD IN GREEN AND KINGSLEY TPS.

APPEAL BY EXCEPTANTS EROM THE COURT OP QUARTER SESSIONS OE EOREST COUNTY.

Argued October 9, 1889 — Reversed at Bar.

Where viewers in a road proceeding were petitioner's for the road, but their names were erased from the petition that they might be appointed viewers, and they were so appointed without the court being aware of the circumstances, an order confirming the road will be reversed.

. Before Paxson, C, J., Sterrett, Green, Clark, Williams, McCollum and Mitchell, JJ.

No. 64 October Term 1889, Sup. Ct.; court below, No. 5 February Term 1889, Q. S.

On February 27, 1888, a petition was presented praying for the appointment of viewers to view and lay out a public road in Green and Kingsley townships; whereupon the court ap\J. F. Proper, artist, J. F. Overlander and W. G. Mcviewers, who on May 21,1888, filed a report in favor of . road.

On June 16, 1888, the road commissioners of Green township filed exceptions to the report, alleging, inter alia, that J. F. Overlander and W. G. McCain, two of the viewers, were signers of the petition for the road and disqualified.

Depositions were taken, filed and read upon the hearing, and on August 10,1888, Brown, P. J., filed the following opinion:

It is unfortunate that the relation of the two viewers, Over-lander and McCain, to the proceedings in this case, was not known at the time of their appointment, as much trouble and expense would have been avoided thereby. But, notwithstanding the expense incurred, it is the duty of the court now to quash the proceedings, if it appears that the viewers, by reason of interest and prejudice, were not qualified to act. The undisputed facts are that the viewers, Overlander and McCain, had signed the petition before it was presented to court, but at the *528time the petition was presented their names had been erased or taken off. They both testified that they gave consent to have their names stricken off, and, in substance, that this was done for the purpose of being appointed viewers. It is certain those parties would not have been appointed, had the court been aware of the circumstances, and it seems proper that having thus acted their report should be set aside. We do not question the honesty of those viewers. We merely hold, that, taking the circumstances under which their names were taken from the petition and they made viewers into consideration, it would be legally wrong to permit their work to stand.

We express no opinion on any of the exceptions but the first. The first exception is sustained; the entire proceedings are quashed and dismissed, costs to be paid as shall be ordered hereafter.

—On the same day, but after the opinion of the president judge was filed, J. A. Proper and Lewis Amer, associate judges, entered the following order:

And now, to wit: August 10, 1888, we, the associate judges of Forest county, are of opinion that the evidence and admissions as to acts of viewers, J. F. Overlander and W. G. McCain, are not sufficient to disqualify them as viewers, and that no wrong has been done, and the road being of imperative necessity, we overrule the exceptions on hearing, and order confirmation absolute.1

Thereupon, the exceptants took this appeal, assigning as error, inter alia, the order overruling the exceptions to the report of the viewers.1

*Mr. Q. Heydrielc*(with him *Mr. T. F. Fitohey'),*for the appellants.

Counsel cited: Radnor Tp. Road, 5 Binn. 612; McClaysburg Road, 4 S. & R. 200; May Town Road, 4 Y. 479; Hilltown Road, 18 Pa. 238.

There was no appearance for the appellees.

Per Curiam:

On the argument at Bar,

Order reversed, and record remitted.