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fore the death of the testator." This first the question was whether the codicil resection of the Act of 1879, is an exact voked a second will and republished an transcript of the British statute, 1 Victoria earlier will on which it was written. To c. 26, (1837). It is said in Jarman on the same effect in principle is Tinnard's Wills, 186*, 291*, that the Statute relates Appeal, 12 Norris 313. But we find that to the subject of the devise or bequest in all other cases, since the modern statutes and not to the objects of the gift, and, of wills, which may arise out of the exetherefore, so far as our Act of Assembly cution of a codicil, questions regarding the is concerned, it may be said, that it is intention of the testator are involved to the object that is, under the conditions such an extent as to qualify the rule prescribed by the act of 1855, inhibited, invoked here materially. Instances of this and prevented from taking the bequest. are shown in the cases of Coale v. Smith, But let us look at what is meant to the 4 Barr 376 and Alsoph's Appeal, 9 Barr period from which a will speaks. That 374, in both of which the opinions were phrase had relation, for instance, at one delivered by Mr. Justice Bell. In the last time, to the capacity of the testator to pass mentioned case this distinction is shown : by a general gift his real and personal es- that though for some purposes, a will and tate, "and, accordingly, such a gift, in re- codicil are to be regarded as making but gard to the real estate, was read as a gift one testament, they will not be considered of the property belonging to the testator as a single instrument, where a manifest at the time of the execution of his will intention requires otherwise. (he being incapable of devising any other, An instance of a codicil and will being and as to the personalty, as a disposition separate instruments and one testament, is of what he might happen to possess at the illustrated in the cases of Hamilton's Esperiod of his decease: Jarman 287.*- tate, 24 P. F. S. 69, and Bradish v. McThus it appears that as regards general Clellan, 40 Leg. Int. 110. In the latter bequests, wills always did speak from the case the codicil was held to attach itself to death of the testator. As regards general whichever of two wills become operative devices of real estate, we have had since in a certain contingency. In the former the Act of 8 April, 1833, a provision that case the same codicil was held not to affect after acquired real estate shall pass by a the charitable bequests in the will, which will. The rith section of that act has was declared operative by the codicil.been cited by text writers as an equiva- That the later will was prevented by the lent to the 24th chapter of the British codicil from being a revocation of the earStatute; Jarman, 288,* n. Why it was

n Why it was lier will. That the earlier will was never thought necessary by the legislature to republished because it was never revoked enact, so late as the year 1879, the words by the later will, and therefore, it spoke of that 24th chapter, I do not know : to from its date. This is the idea suggested all intents and purposes our reformers in above as to the principle of Neff's Apthe matter of wills had preceded them.- peal, and the effect of a codicil in repubAt any rate it has always been understood lishing a will that would otherwise be as a general rule that a will speaks from revoked. The first will in Hamilton's Esthe death of the testator, unless its lan-tate would have been revoked by the guage indicates a contrary intention. second will, but for the codicil which gave

The question recurs then to the ef- it life, and yet it did not affect the validity fect of a republication of a will by a of the charitable bequests in the first will. codicil. There is a class of cases about This could be only on the ground of its which there can be no contention. Such being a separate instrument. Bradish v. as Neff's Appeal, 12 Wright 501, in which McClellan, held the codicil to be part of

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the same testament as the first will, and I record proper, or in the testimony before understand the court not to question the the court below, that would have justified validity of the charitable bequests, but to a reversal of his judgment. affirm the decision, for the remark is made The remedy provided by the fourteenth that they were held valid, without com- section of the act for neglect to keep the ment. The question was directly in view road "in good and perfect order and reof the court though not before them.- pair" appears to have been strictly purHamilton's Estate does not ignore the sued. Aninquisition condemning certain power of the codicil to put in force the portions of the road were taken, returned, first will, but declares it a separate instru- and duly served on the plaintiff in error, ment from it. Bradish v. McClellan only one of the company's gate keepers. The declares the codicil a part of the same legal effect of that preliminary proceeding testament as the first will.

was to suspend the right of the company The question raised here as to the peri- to demand or receive tolls on the defective od from which this will speaks, based portions of its roads, until, in the language

of the act, they were put "in good and upon the doctrine of republication by a perfect order and repair.” In addition codicil, would make void the charitable thereto, that clause of the section on bequest given by the original will con- which the present action is founded detrary to the intention of the testatrix.clares if any gate-keeper shall take or atThe very act of republication, ipso facto, tempt to exact tolls for such portions of

the road as have been condemned, during would make null and void that which re

the time the same shall continue out of publication by intendment of law reaf- repair, "such keeper shall forfeit and pay firms. I think the validity of the residu- to the person who shall prosecute for the ary bequest, above quoted from the will, same the sum of five dollars, to be recovand under which the auditor makes his ered before any justice of the peace as

debts of equal amount are or may be by award, is not affected in any way, by the law recoverable.” The language thus emcodicil, and that it does not bring the be-ployed clearly indicates that the Legislaquest within the prohibition of the act of ture intended to avoid technicalities by 1855

providing a plain civil remedy for the

collection of the penalty as often as it The report of the auditor is confirmed. might be incurred. It is to be recovered

as a debt of the same amount in an action

before any justice of the peace. SUPREME COURT.

The slight discrepancy between the

transcript, which shows simply an action Fetterman v. Robbins.

of debt, and the summons, in which it is Under the Act of March 19th, 1804, incorporating the styled "penal debt,” is wholly immaterial. President, Managers, and Company of the Susquehanua and Lehigh Turnpike Road, the directors were bound to

Taken as a whole, the records exhits a keep the road in repair and good condition; and when not good cause of action.

The inquisition to examine the condition of the road, and notice of the given in evidence, and fully set out in the same being given to the toll-keepers, they were not to ex: transcript, together with proof of the sera penalty for each collection, recoverable before a justice vice thereof on the defendant below, and of the peace. A toll-keeper exacted toll after being notified of ine condition of the road, and admitted the fact be- his admission before the justice that he fore a justice of the peace: HELD, that a good prima facie case had been made out against such toll-keeper, which

thereafter collected toll, all of which are could not be rebutted without affirmative proof that the shown by the record, made a clear prima condemned portion of the road had been put in order.

facie case against him, which could not be Error to the Court of Common Pleas successfully rebutted without affirmative of Luzurne County.

proof that the condemned portion of the October 2, 1882. STERRETT, J.—The road had been put in good order and recase, as presented in the transcript of the pair before he demanded toll. That was

not done, and the judgment of the justice justice, is clearly within the jurisdiction was, therefore, in accordance with the conferred by the act of March 19, 1804, evidence before him. and there appears to be nothing in the Judgment affirmed.

VOL. IV.

No. 6.

YORK LEGAL RECORD. jury. The truth of the testimony does not

depend upon a preponderance in the numTHURSDAY, APRIL 12, 1883.

ber of witnesses. And again, no matter COMMON PLEAS.

how wet the tobacco may have been,

whether it had been made wet by waterAnstine v. Mayer.

ing or not, was a fact to be arrived at by

process of reasoning, a deduction from New Trial-Reasons for Weight of facts testified to. The witnesses of the evidence.

defendant also differ as to the degrees of Where the question at issue is essentially one of fact, wetness, and the process of sweating, and the case presents the ordinary conflict of testimony a new trial will not be granted on the ground that the which is natural to the tobacco packed, verdict was against the weight of the evidence. Even where the jury may differ in opinion with the

was not improbable. Taking the whole court, it is no ground upon which to grant a new trial, where there is a conflict of testimony, or where the cause

case to gether, there is by no means, that is submitted on the credibility of the witnesses.

clear and decisive proponderance of eviMotion for a new trial.

dence, which is necessary to entitle a parThe ground for the motion is given in ty to a new trial ; Ludlow v. Ins. Co., 2 the Court's opinion.

S. & R. 119. W. C. Chapman for motion.

We submitted in strong terms the full H. L. Fisher, contra.

weight of the defendant's testimony to the April 24, 1883. GIBSON, A. L. J.- jury, we also submitted the case of the The principal ground upon which a new plaintiff in such terms as left the points trial was urged in this case was that the favorable to each fairly to the jury. Not verdict was against the weight of the evi- | to speak of my own leanings as to the dence. But the question at issue was es- correctness of the verdict, on the one side sentially one of fact, namely, whether the or the other, there is scarcely a cause tried, tobacco delivered by the plaintiff to the in which the parties concerned, might not defendant had been fraudulently watered. with equal propriety ask for a new trial if Many witnesses testified that the tobacco the verdict goes against either. Even at the time of delivery was wet, and gave when the jury may differ in opinion with their opinions that it had been watered.- the court, it is no ground upon which to On the other hand, an important element grant a new trial, when there is a conin determining the fact whether it had flict of testimony, or where the cause is been fraudulently watered or not was, the submitted on the credibility of the wittime when it could have been done. It nesses : T. & H., Sec. Sec. 749. was all in good condition when the de

Rule discharged. fendant inspected it, just three weeks before it was delivered. It was moist then.

Smith v. Inners. The persons who bailed it, on the 25th of March, five days before delivery testify New Trial-Reasons for-Contributhat it was done on a damp day and that tory negligence. they put no water on it. Defendants' wit- Where the defendant, through careless driving, collided

with the plaintiff, it is no defence to an action for damnesses say, if it was watered, it must have ages, that the plaintiff was deaf, and therefore did not

hear the defendant's cries. been done four, five or six days before the The rule applicible to driving over a rail road track

does not extend to an ordinary road. delivery. Besides it is in evidence that

Motion for a new trial. pouring water on into the bales could not be done, at least, not to any extent to

S. H. Forry and W. C. Chapman for injure the tobacco. The case, therefore, motion. presents merely the ordinary conflict of John W. Bittenger, contra. testimotly, in which event, the credibility April 24, 1883. GIBSON, A. L. J.of the witnesses on either side is for the This case involved simply a question of

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careless driving. It was submitted to the action against the defendant. This injury to say, whether or not, there were struction could not have been given in facts and circumstances, in the case, which view of the plaintiff's testimony that he could throw the blame upon the plaintiff, did look out, how often-was for the jury or make it appear to be an inevitable ac- to determine. cident, in either of which events, the . The rule applicable to a place of danger, plaintiff could not recover. One who

such as being on a railroad track, cannot fails to exercise ordinary care in riding or be said to apply to an ordinary road, and driving is liable for all damages thereby I still think, as I said in the general charge, occasioned ; Strohl v. Levan, 3 Wright that the fact of the plaintiff being deaf or 177, subject to the qualifications just men- feeble in any way, does not excuse any tioned. The facts were not such as to

want of care on the part of the defendant. permit the court to take the case from the

Rule discharged. jury. The ground upon which a new trial

Sutton v. Coover. was chiefly urged, was that of an inade

PleadingSpecial pleaValidity of. quate instruction to the jury in regard to

In an action for trespass on the case for the killing of a an infirmity of the plaintiff, submitted in dog, the detendant filed a special plea admitting the kill

ing, but alleging that the plaintiff's dogs had been in the the fourth and fifth points of the defend- habit of worrying his (defendaut's) cattle, and that on the

night of the alleged trespass some dogs were worrying ant. It was contended that the fact of the his cattle, and therefore in the dark he shot and wounded

the said plaintiff's dog, and further averring that if any plaintiff being a deaf man who could not damage was thereby occasioned to the plaintiff it was oc

casioned by the uplawful trespass and depredations of hear the defendant's approach, nor his the said dog. HELD, to be a valid plea. calls of warning to get out of the way,

The matters of fact set out being certain to a common

intent, and forming one connected proposition, the plea was a circumstance so extraordinary,

not objectionable in form. concurring with defendant's fault, as

Motion to strike off special plea. ought to relieve the defendant of all lia- The special plea filed was as follows : bility in the suit. This instruction could

“And for a further plea in this behalf the not have been given in view of the fact defendant says that just before the time that the defendant testified that he did not of the alleged shooting of plaintiff's dog see the plaintiff until he was within a few by defendant and for a long period prior steps of him, and that there was then no

thereto plaintiff's dogs were in the habit time to stop the sled, and that the warning of worrying and annoying his cattle and to get out of the way was not in time to sheep, hogs and poultry, and that he was enable the plaintiff to do so, and that the frequently compelled to rise at night and defendant might have seen the plaintiff drive them away, and that on the night of had he been looking in time enough to the alleged shooting dogs were worrying have avoided the accident. It is not cer

his live stock in the barn yard, and if he tain, from the testimony, that the halloo had not fired the shot some of them would ing to each other of those on the sleds oc- have been killed, wherefore the said decured at this point, yet it was submitted fendant did then and there shoot out of to the jury as though it had.

his room-window in the dark as he lawIt was also contended that the plaintiff fully might for the cause aforesaid and in being deaf and necessily aware of this so doing did necessarily and unavoidably his defect, he had greater reason for cau- wound the dog of said plaintiff doing no tion and care in advancing; and that un- necessary damage to said plaintiff on the der the circumstances the plaintiff was occasion aforesaid. And so the said deguilty of such negligence himself, in being fendant saith that if any hurt or damage in the way of danger, and not keeping a then and there happened to the said plainsufficient lookout, as entirely defeats his tiff by reason of the loss of his dog the

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same was occasioned by the unlawful 1. The defendant pleads not guilty. trespasses and depredations of plaintiff's

2. And for a further plea in this behalf said dog on his the said defendant's pre- the said defendant saith that the said plainmises, which are the supposed trespasses tiff ought not to have and maintain his

. in the introductory part of his plea men- said action against the said defendant betioned and whereof the said plaintiff hath

cause saith that the said public road in above complained. And this the said de

And this the said de- the plaintiff's declaration mentioned, at fendant is ready to verify.'

the place where the said injury of the said The motion to strike off is:

plaintiff is alleged to have happened at the “The plaintiffby his counsel respectfully time of the happening thereof was well moves the court to strike off the special and sufficiently opened and graded to the plea filed by the defendant on the 9th day width of twenty feet or thereabouts, and of October, 1882, for the reasons that it is

was level from side to side and in suffiuncertain, evasive, argumentative and cient repair for all citizens of the Comcontains nothing that ought to prevail the monwealth using ordinary care with their defendant as matter of defense.”

horses, carriages, buggies, carts, wagons H. L. Fisher for motion.

and other vehicles, to pass, repass, and Jos. Ritner and G. W. Heiges, contra. travel over with ease and safety; and the

April 24, 1883. GIBSON, A. L.J. The defendant avers that the said plaintiff at special plea filed in this case does not lack the time and place aforesaid, was not in any quality essential to its validity as such. the immediate control of his said team, It is in justification of the trespass charged and negligently permitted his said team to in the narr. It admits a prima facie right go unguided up and upon the bank in the of action in the plaintiff, 1 Chitt. Plead. said plaintiff's declaration mentioned, and 557, (1833) ; but discloses matter tending to run and draw his said wagon up and to destroy that right of action. Nor is the upon the said bank and to upset the said plea objectionable in the manner of its re- wagon and load of wood right in and cital of facts. As they are set out they upon the travelled track of the said pubform one connected proposition, and are lic road and that at the time and place certain to a common intent; Ibid. 565.- aforesaid no other wagon, or other vehicle The plaintiff's ground of action being the was passing or occupying any part or porshooting of his dog by the defendant, the tion of the said travelled track of the said question whether the circumstances under road, and that there was then and there which the dog was shot, are or are not a no embankment or declivity requiring any justification of it, is the matter to be tried. ' guards for the safety of travellers using Rule discharged.

ordinary care. And this the defendant is

ready to verify, &c. Wherefore he prays Hartman v. Hellam Township.

judgment, &c.” PleadingSpecial plea— Validity of.

The motion to strike off was as follows: Plaintiff brought suit against defendant for injuries occasioned to plaintiff and his horse, by reason of a road in The Court is respectfully asked to strike said township not being opened and graded to its full

off the defendant's special plea in the width, and the absence of guards along a certain embankment.' Defendant filed a special plea, alleging that the road was open of sufficient width for travelling by persons

above case for the following reasons : using ordinary care, and that the plaintiff was not in full control of his team at the time of the accident, and negli- 1. The allegation that the public road gently permitted them to cccasion the injuries complained of. HELD, to be valid.

in question was opened to the width of Motion to strke off special plea. "twenty feet or thereabouts” is not perti

The following special plea was filed in nent to the issue, and not a defence if this rule:

true, the width of the road as confirmed “Pleas to the declaration of plaintiff filed by the Court and ordered to be opened Dec. 13, 1882.

being 30 feet.

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