In re Road in East Donegal Township , 1879 Pa. LEXIS 222 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court,

We have but a single assignment of error here, and that alleges that the court below erred in sustaining the first exception filed to the report of the viewers. The exception referred to is as follows: “ The jurors were not affirmed, as is required by law and by the order of the court under which they were acting, which requires them to be sworn or affirmed to perform the duties of their appointment impartially, and to the best of their judgment.” The report of the viewers sets forth: “That having been present together at the view of the ground proposed for such road, and having all been first severally sworn or affirmed in pursuance of the said order we have viewed and laid out, and do return for public use the following road,” &c. The case of Cambria Street, 25 P. F. Smith 357, is relied upon to sustain the ruling of the court below. It was there held that where the report of the viewers set forth that they had been sworn “to the faithful discharge of their duties,” it was insufficient, the Act of Assembly requiring, them to be sworn to perform their duties “impartially and to the best of their judgment.” This was simply following in a line of authorities which hold that where in a judicial proceeding an Act of Assembly prescribes a certain form of oath, and the record shows that such form had been departed from in a material part, the proceeding will be set aside by reason thereof. Thus, in Thompson v. White, 4 S. & R. 235, the award of the arbitrators was set aside because the record disclosed the fact that in the oath of the appellant the word “firmly” was omitted; the Act of 1810 requiring him to swear that he “firmly believes injustice has been done.” ' On the other hand we have the recent case of Wayne Township Road, not yet reported (but see Leg. Int., vol. 33, p. 322), in which it was held that a statement of the viewers in their report that they were sworn “according to law,” is prima facie sufficient. We do not regard this case as in conflict with those above cited. Wherever it appears affirmatively upon the face of the record that the jurors were not properly sworn, of course the report must be set aside. But where on the contrary the record sets forth that the jury were “sworn according to law,” we must presume until the contrary appears, that they were sworn in the manner prescribed by the Act of Assembly. The maxim, omnia prcesumuntur rite esse acta, may properly be applied in such cases. This is a matter of daily practice in judicial proceedings. There are many instances in which prescribed forms of oath are required, where the record merely says “ sworn” or “ affirmed.” If we may presume regularity in this respect in proceedings in the Oyer and Terminer, where a man is upon, trial for his life, we may safely extend it to the report of a road jury in the Quarter Sessions. Here the viewers report that .they were severally sworn or affirmed, and it requires no straining of their language to say they “ were severally sworn or affirmed in pursuance of said order.” We are of opinion that something is due to the presumption of regularity, and that prima facie the oath is sufficient.

The order of the Quarter Sessions setting aside the report of the viewers is reversed; the exceptions filed to said report are dismissed, and the report confirmed; the costs to be paid by the exceptants.