Proper v. Campbell

W. D. Porter, J., Opinion by (after finding the facts as set out in the statement of facts) : [157] Here was a living witness, called by the defendants, who was competent to testify and did testify against the plaintiffs with regard to a relevant matter which occurred in her presence prior to the death of John L. Peters, one of the parties to the alleged contract. The effect of this was to render the surviving parties -and other persons whose interests were adverse to the right of the defendants competent to testify to that particular relevant matter. There was no element lacking which was essential to bring the case within the operation of the Act of June 11, 1891, P. L. 287 ; Roth’s Estate, 150 Pa. 261; Krumrine, Exr., v. Grenoble, 165 Pa. 98; Gold v. Scott, 5 Pa. Superior Ct. 262; Brumbaeh v. McLean, 187 Pa. 602; Robbins v. Farwell, 193 Pa. 37. The witness in her examination in chief had unequivocally testified that the agreement had been made and the defendants could not deprive the plaintiffs of the benefits of the act of 1891 by refraining from asking her who were present at the time the agreement was made; this fact the plaintiffs had a right to develop in her cross-examination, and the case does not fall within the operation of the rulé laid down in Cake v. Cake, 162 Pa. 584. Both Proper and Doutt were competent witnesses to contradict the testimony which had been given by Martha L. Peters, and the first and second specifications of error must be sustained. The only question raised by the remaining assignment of error is the amount to which sheriffs of Forest county are entitled as mileage fees for the execution of Avrits. The learned court below charged the jury that the sheriff was entitled to receive only six cents per mile. The Act of February 19, 1870, P. L. 210, increased the mileage fees of sheriffs in the county of Forest to ten cents per mile, but this act does not seem to have been called to the attention of the court below, nor was the question raised in that tribunal, and if the record were free from error in other respects we would not feel warranted in reArersing upon that ground alone. The attention of the court will no doubt be directed to this legislation at any future trial. The judgment is reversed and a venire facias de novo awarded.