
    In the case of Broad street road continued from Camac street to the township line road.
    
    
      Friday, December 21.
    Under the^ the Act of 3d the^vhoief’ twelve view-era must be sworn; if only ten of the twelve appointed by the sworn *and proceed to act, their proceedings are 1
    appointed and sworn, two who do not right tobea present and give theiropinionsatthe wWehafter* wards take I>laoe‘
    THIS was a certiorari to the Court of Quarter Sessions of the county of Philadelphia to remove the proceedings in case Broad street road continued from Camac street to the township line road, to which the following exceptions ri \ were filed,
    1. 1 hat the jury of viewers never were legally organised; only ten of the jurors met, and were sworn or affirmed, whereas twelve ought to have been sworn and affirmed,
    . 2. 1 hat it does not appear that the jury were legally sworn or affirmed, nor by whom they were sworn and affirmed.
    3. That it does not appear from the return of the fury, , , , . 11 ,. , ,. . J whether the street is necessary for a public or private street.
    4. That it does not appear on the draft what course and distance the road or street is to take, nor is any reference had , . , . , , . r , to the improvements either in the draft or report of the viewers.through which the road may pass,
    5.' That the report is uncertain and void as it does not state from what part of Camac street the road shall commence, nor to what part of the township line road it shall be continued.
    6. That the report of the viewers does not state that there is occasion for the continuance of the said street, nor that it .is necessary.
    
      7. That the Court confirmed the jury of view pending the order for a jury of review.
    8. That the said road was approved, confirmed and ordered when it ought to have been disapproved, rejected and vacated.
    The proceedings took place under the Act of 3d April, 1804, section 1, (Purd. Dig. 594,) which enacts that the Court of Quarter Sessions of the county of• Philadelphia, on being petitioned to grant a view of, or for opening any public road, street, lane or alley within the township of the Northern Liberties, or the district of Southwark, shall have power, and by virtue of this Act are directed and required as often as they shall find it needful in open Court to order and appoint twelve discreet and reputable freeholders, neither of whom shall reside or own real estate in the township or dis-N trict aforesaid, who being first sworn or affirmed shall toge■ther 'with the commissioners of the county for the time being, or a majority of them view the ground, proposed .for. such road, street, lane' or alley ; and.if they, or any ten of them, view the said ground, and any seven of the actual viewers, exclusive of the county commissioners, agree that there is occasion for such road, street, lane or alley, they shall proceed to lay out the same as agreeable to the desire of the-petitioners as may be, &c. .
    
      Norris and Delany against the road, relinquished the third exception, and argued the remainder, but relied principally on the first; namely, that only ten of the jury attended and were sworn, whereas the law required that the whole twelve appointed should be qualified, though ten might view and seven report. The whole twelve should be qualified before any step can be taken. If'the Court should appoint but ten, and they should be sworn, their acts- would certainly not be good though seven should agree. The qualification of the whole can no more be dispensed with than the appointment of the whole. Besides it might lead to improper practices. The petitioners might leave out two who were averse to the road, if all the twelve were not sworn s whereas if they are all sworn the two who do not view.have a right to join in the deliberations. The number seven is fixed on as the majority of twelve. They cited 5 Binn. 481.
    
      Cohen and Binney, contra.
    The expressions .of the Act are ambiguous". Under the general road law of the 6th of September, 1802, Purd. Dig. 586, though six are appointed, it is sufficient, if five view, and four of the viewers agree.. This Act-of the 3d of April, 1804, is drawn on the same plan : 'if ten view and seven, of them agree, it is sufficient: there is no positive direction that twelve shall be swor-n or affirmed. The swearing is introductory to the viewing, and unnecessary for those who do not view. If one of the viewers appointed should die before the rest are sworn, they might proceed under the Act. The ^ct: grst directs that all twelve shall, be sworn and view, and then proceeds to declare that if ten view, it shall be .......r! ° 1 ' " '
   The opinion of the Court was delivered by ‘

Tilghman C. Jr

This is' the case of a road laid out by order of the Court of Quarter Sessions of Philadelphia county, under the Act of the 3d of April, 1804, entitled “ a supplement to an Act, for laying out and keeping in repair,” &C. Several exceptions were taken, to the proceedings, in- neither of which, does the Court think, thereis any weight, except in the first, viz. that only ten viewers appointed by the Court of Quarter Sessions were sworn. The Act directs, that on a petition for a road within the township of the Northern Liberties, “ the Court shall appoint twelve discreet and reputable freeholders, neither of whom, shall reside, or hold real estate in the township aforesaid, who, being first sworn or affirmed,1 shall, together with the commissioners of the county, for the time being, or a majority of them, view the ground proposed for such road, and if they or any ten of them view the said ground, and any seven of the actual viewers, exclusive of the county commissioners, agree that there is occasion for such road, they shall proceed1 to lay put the same.” &c. The Counsel for the petitioners contend, that inasmuch as a road may be laid out, although, only ten persons appointed by the Court, actually view it, there is np occasion for more than ten to be sworn. But this does not follow. It is the plain intention and direction of the Act, that twelve persons shall be appointed and sworn, and it is the duty of all who are sworn to attend, and view the - ground, unless prevented by some cause, which affords a reasonable ground for excuse.. If the whole number need not be sworn, it may tend to improper practices—those who are supposed to be unfavourable to the road, may be prevailed on to decline the service. Besides, when all are sworn, although two of them may not be able to view the ground, yet they have a right to be present and give their opinion, at the deliberations which take place afterwards. And those opinions may have weight with the actual viewers. For thére may be reasons as to the expediency, of laying out a road, of. which a man may form a judgment, without going on the’ ground. Besides, there is a coriVenience in having all twelve .sworn, cause, .being sworn, they will think it their duty to attend the view, and then, in case of sickness or accident,., there is a great probability of always having ten to go on with the siness. Whereas, if ten only are sworn, and view, the sickness of a single person will put a stop to the whole proceedings. There is no good reason, therefore, for resorting to ingenious arguments, for introducing a practice contrary to the words .of the law. It is better to take it, as it is written. Let the twelve persons be sworn, and then, whether they all attend the view, or only ten of them, the proceedings will be valid, provided seven of the viewers agree.

' In this case, only ten .having been'sworn, it is the opinion of the Court that the proceedings should be quashed.

Proceedings quashed.  