[Fagely v. Bellas.] The court therefore instruct you, that if the firm of Fagely, Kase & Company, did, in the year 1843, make such promise as is alleged in the plaintiff's declaration, it would be binding upon the firm, and all the members thereof, who are sued, would be liable in the present action. "Each partner is præpositus negotiis societatis, and each partner, virtute officii, possesses an equal and general power and authority in behalf of the firm to pledge, transfer, exchange, or apply or otherwise dispose of the partnership property and effects, for any and all purposes within the scope and objects of the partnership, and in the course of its trade and business. The nonjoinder of William H. Kase, therefore, will not prevent a recovery by the plaintiff from the present defendants, if the facts authorize such recovery. The 4th point was answered in the affirmative. To the 5th point: The court refuse to answer this point as requested by the counsel for the defendant, and decide that if the jury believe the testimony given by the plaintiff, there is a sufficient consideration to support a promise by the defendants. J. B. ANTHONY, President Judge. Nov. 18, 1848. Verdict was rendered for plaintiff, for $199.50. 1. After verdict the defendant's counsel moved in arrest of judgment, 1. Because the jury were sworn, and the verdict is entered against both William and Reuben Fagely, and the declaration is against both, notwithstanding William was never served with process-did not appear, and was not impleaded in the action. 2. Because the plaintiff does not set out a sufficient cause of action in his declaration. January 13, 1849. The motion was discharged, and judgment entered for plaintiff on the verdict. April 17, 1849. The court direct that, if execution be issued, . it shall be against the property of Reuben Fagely only. It was assigned for error: 1. That the court erred in admitting the evidence contained in defendant's bill of exception. 2. In their answers to defendant's 3d and 5th points. 3. In discharging the motion in arrest of judgment, and entering judgment for plaintiff upon the verdict. 4. In directing that execution should be issued against the property of Reuben Fagely only. [Fagely v. Bellas.] The case was argued by Packer for R. Fagely & Co. The opinion of the Court was delivered July 31, 1851, by COULTER, J.-There were two firms, the first composed of William Fagely, William H. Kase, and Reuben Fagely. This firm did business until the close of the year 1843. The firm of Reuben Fagely & Company, composed of Reuben Fagely and William Fagely, was formed in 1844. The evidence seems greatly to preponderate in showing that the promise declared on was made in 1843, by the firm of Fagely, Kase & Co., and before the firm of Fagely & Co. was instituted. The court instructed the jury, "that if the firm of Fagely, Kase & Co. did, in the year 1843, make the promise declared on, it would be binding on the firm, and all the members thereof who are sued would be liable in the present action." The court further instructed the jury, that the only way in which the defendants could take advantage of the non-joinder of Kase, was by plea in abatement. This is not the case of a single firm, trading and doing business ostensibly in another name than that in which they had agreed to conduct their business. In that case, the name in which they conducted their business, ostensibly, and which was known to the public as their business name, would bind all the members of the firm, and all and each of them would be answerable for the contracts so made. But two or three members of a firm may compose a firm under a different name, known to the public, and they as a firm would be liable only for their own contracts. The firm of Reuben Fagely & Co. was of this description, and as a firm they would not be answerable for the contracts of the firm of Fagely, Kase & Co. To hold or rule that, would be to confound the principles of contract, the rules of pleading, and the mode of settling and proof of partnership accounts. If the defendants had been sued as individuals the contract would have to be proved as laid, and if they had been sued as the firm of Fagely, Kase & Co., the contract would have to be proved as laid; but in that case, if they wished to take advantage of the non-joinder of one member of the firm, they would have to plead in abatement. The rule that the proof and the allegation must correspond, is of universal application in suits on contracts. Here the suit is brought against the firm composed of William and Reuben Fagely, and the court instruct the jury that a contract or promise made to a different firm will support the action, merely because some members of the firm of Fagely & Fagely were members of the firm of Fagely, Kase & Co. These two firms were so distinct and separate that they could have contracted with each other, sued each other, had a different [Fagely v. Bellas.] set of contracts and liabilities, different and distinct claims and assets, and all these are not to be confounded and thrown into hotchpot. It would be not merely a confusion of form, but might work a confusion of substance and justice. It is true that each member of a firm is responsible for all its engagements; that Reuben Fagely and William Fagely are answerable for the contracts of the firm of Fagely, Kase & Co.; but then they must be pursued in a proper way, so as not to breed confusion and conflict among the creditors of both firms. They cannot be sued as the firm of Reuben Fagely and William Fagely, partners trading under the firm of Reuben Fagely & Co. In fact, the very style of the suit shows that they did not contract as the firm of Fagely, Kase & Co. On this error, being the second, the judgment is reversed. If, on a second trial, the plaintiff can show a promise made by the firm sued, he will be entitled to recover. The first error assigned is of no account. It is true that partners cannot contract by deed as a general rule, but this is an action of assumpsit; and a writing under seal by one member of a firm, in the name of the firm, is good evidence of a promise, if made upon a sufficient consideration. The third error has become immaterial, as the cause will be sent back for a new trial, when the counsel will no doubt take more heed to the swearing of the jury. The fourth error has also become immaterial by the cause being sent back for another trial. Judgment reversed and venire de novo awarded. Road in Augusta Township. 1. A review in order to vacate a road not opened, but in favor of which a report has been made and confirmed, may be granted under the 19th section of the general road law of the 13th June, 1836, on the petition of a majority of the original petitioners for the road, and such a proceeding and report against the opening of the road, does not admit of re-examination by re-review: in order to obtain the road, proceedings must be had de novo. 2. It is not essential that it be stated in a petition for a review to vacate a road not opened, that it proceeds from a majority of the original petitioners for the road; if it appear from the record that it was signed by a majority of such persons, it will be sufficient. 3. A petition to vacate a road in favor of which a report has been made and confirmed, need not be presented at the next term of the court after the report upon the first view. IN the matter of a road in Augusta and Shamokin townships, Northumberland county, leading from near Peter Kieffer's to Samuel Gonsert's. [Road in Augusta Township.] Certiorari to the Court of Quarter Sessions of Northumberland county; July term, 1851. At April Sessions, 1849, upon a petition being presented, the Court appointed viewers, who reported at August Sessions, 1849, in favor of a road; which report was, on the 11th of August, 1849, read and confirmed nisi. At April Sessions, 1850, the road not having been opened, a petition was presented, signed by a majority of the original petitioners for the road, praying for the appointment of persons to review, and if they see proper, vacate the road. Viewers were appointed, who reported at August Sessions, 1850, that the "road would, if opened, be useless, inconvenient, and burdensome." It was not alleged in the petition, that it proceeded from a majority of the original petitioners for the road. At the same term (August Sessions, 1850), a petition for a rereview was presented, upon which viewers were appointed, who viewed the ground on the 7th of November, 1850, and reported in favor of a new route between the same points; which report, at November Sessions, 1850, was "read and confirmed nisi, and the Court fixed the width of the road at 33 feet." November 15, 1850, the Court confirmed this report. November 30, 1850, order to open issued. It was assigned for error: 1. The Court of Quarter Sessions had no power to grant a rereview at August Sessions, 1850, and the report of the re-reviewers, made in pursuance of the order granted at that time, and changing the route of the road, was irregular and unauthorized. 2. The Court of Quarter Sessions confirmed the report of the re-reviewers, and ordered the road to be opened at the same term to which the report was made, and the width of the road fixed. The case was argued by Packer and Bruner for exceptants.As to the first error assigned: The petition presented at April Sessions, 1850, was for a vacation of the road, in pursuance of the provisions of the 19th section of the Act of 13th June, 1836, "relating to roads, highways and bridges," (Purdon's Digest, p. 1032), and not for a review; and the report of the viewers appointed upon it, was in favor of vacating the road. The court, then, had no authority to appoint re-reviewers with power to lay out a new road. Persons desirous of having the road, could only apply to the court for reviewers to review the report vacating the road, and they would have been confined to the adoption or rejection of the original route. In this case they have adopted a new route. 2d error: The report of the reviewers was confirmed absolutely and the road ordered to be opened, at the same court to which the report was made, and the width of the road fixed [Road in Augusta Township.] "The approval and order of the court fixing the width of a road, must lie over one term for objections, before the road is opened.' Road in Pitt township, 1 Barr 356; 3 Wharton 105; 4 W. & Ser. 39; 3 W. & Ser. 559; 5 Barr 515; Act of 13th June, 1836-sec. 4. Jordan, in reply.-The exceptions now taken, were not made in the court below. The petition presented at April Sessions, 1850, after the confirmation of the above report became absolute, is equivocal. If it was intended as a petition to vacate, it does not "set forth in a clear and distinct manner, the situation and other circumstances of such road or highway, or of the part thereof which the appli. cants may desire to have vacated as aforesaid." See the Act of 13th June, 1836, section 23. As a petition to vacate, it is void, and did not give the court any authority to appoint viewers. It is not a petition to vacate, but a petition for review. It prays the court to grant a review to vacate, &c. The order issued by the clerk states, that Harman Kline, et al., are appointed reviewers to review, and if they see proper, vacate, &c. If it is a petition for a review, it may be conceded that it was presented too late; then the proceedings under it are void; if not void, the petition for a re-review was proper, and the re-reviewers were not restricted to the mere appropriation or rejection of the road, as laid out by the viewers in 1849, but had a right to report a different one: 14 Ser. & R. 31, Road in Abington township. It does not appear from the record, that the confirmation of the report, on the 15th of November, was a confirmation absolute; if it was not, the certiorari in this case issued improvidently. It issued on the 21st December, 1850. The second term commenced on the first Monday of January, 1851. But a report of reviewers, or re-reviewers, need not lie over until the second term for final confirmation. The Act of Assembly has only reference to original views. If this court should be of opinion, that all the proceedings subsequent to the report made at August Sessions, 1849, are void, the original report must re main. The court made no order that the road should be opened, at the first or any other term. The opinion of the court was delivered August 1, by BELL, J.-The Act of 16th June, 1836, provides for the vacation or annulment of highways in two distinct cases. One of these is where the road has been opened and used, and found from experience to be useless or burdensome. For this inconvenience remedy is afforded by the 18th section of the Act, which empowers the VOL. V.-10 G |