The opinion of the court was delivered by
Lowrie, C. J.Though Bittinger might have been himself sued for this coal, yet we know -of no principle that excludes him from being a witness for the plaintiff, to establish the claim against those who participated in the injurious act; and there are authorities enough in favour of his competence: 1 Harris 146, 408; 1 Greenl. Ev., §409.
The charge of the court was in substance that, in order to entitle the plaintiff to recover against the defendants, it must appear, not only that they were landlords of Bittinger, who took out the coal, but also that they participated in the act of going into the plaintiffs’ land to get it. We think this instruction is quite accurate, and is sustained by most familiar authorities. We think there is evidence that the defendants leased to Bittinger this particular vein of coal, authorized the sinking of the slope by which it was reached, and contributed to its expense, believing that it would, not extend beyond their own line, which was not so far out as they supposed; and that by means of this slope, Bittinger took out the coal sued for, and that he has paid for the greater part of it to the defendants as his landlords. Such being the facts found by the jury, the defendants are trespassers with Bittinger; 2 Casey 489: and, the tort being waived, may be sued in assumpsit for the value of the coal taken. This view of the case makes all other points raised immaterial.
• Judgment affirmed.