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fore the death of the testator." This first section of the Act of 1879, is an exact transcript of the British statute, I Victoria c. 26, (1837). It is said in Jarman on Wills, 186*, 291*, that the Statute relates to the subject of the devise or bequest and not to the objects of the gift, and, therefore, so far as our Act of Assembly is concerned, it may be said, that it is the object that is, under the conditions prescribed by the act of 1855, inhibited, and prevented from taking the bequest. But let us look at what is meant to the period from which a will speaks. That phrase had relation, for instance, at one time, to the capacity of the testator to pass by a general gift his real and personal estate, "and, accordingly, such a gift, in regard to the real estate, was read as a gift of the property belonging to the testator at the time of the execution of his will (he being incapable of devising any other,) | and as to the personalty, as a disposition of what he might happen to possess at the period of his decease: Jarman 287.*Thus it appears that as regards general bequests, wills always did speak from the death of the testator. As regards general devices of real estate, we have had since the Act of 8 April, 1833, a provision that after acquired real estate shall pass by a will. The 11th section of that act has been cited by text writers as an equivalent to the 24th chapter of the British Statute; Jarman, 288, n. Why it was thought necessary by the legislature to enact, so late as the year 1879, the words of that 24th chapter, I do not know: to all intents and purposes our reformers in the matter of wills had preceded them.At any rate it has always been understood as a general rule that a will speaks from the death of the testator, unless its language indicates a contrary intention.

The question recurs then to the effect of a republication of a will by a codicil.

There is a class of cases about which there can be no contention. Such as Neff's Appeal, 12 Wright 501, in which

the question was whether the codicil revoked a second will and republished an earlier will on which it was written. To the same effect in principle is Tinnard's Appeal, 12 Norris 313. But we find that in all other cases, since the modern statutes of wills, which may arise out of the execution of a codicil, questions regarding the intention of the testator are involved to such an extent as to qualify the rule invoked here materially. Instances of this are shown in the cases of Coale v. Smith, 4 Barr 376 and Alsoph's Appeal, 9 Barr 374, in both of which the opinions were delivered by Mr. Justice Bell. In the last mentioned case this distinction is shown : that though for some purposes, a will and codicil are to be regarded as making but one testament, they will not be considered as a single instrument, where a manifest intention requires otherwise.

An instance of a codicil and will being separate instruments and one testament, is illustrated in the cases of Hamilton's Estate, 24 P. F. S. 69, and Bradish v. McClellan, 40 Leg. Int. 110. In the latter case the codicil was held to attach itself to whichever of two wills become operative in a certain contingency. In the former case the same codicil was held not to affect the charitable bequests in the will, which was declared operative by the codicil.That the later will was prevented by the codicil from being a revocation of the earlier will. That the earlier will was never republished because it was never revoked by the later will, and therefore, it spoke from its date. This is the idea suggested above as to the principle of Neff's Appeal, and the effect of a codicil in republishing a will that would otherwise be revoked. The first will in Hamilton's Estate would have been revoked by the second will, but for the codicil which gave it life, and yet it did not affect the validity of the charitable bequests in the first will. This could be only on the ground of its being a separate instrument. Bradish v. McClellan, held the codicil to be part of

the same testament as the first will, and I understand the court not to question the validity of the charitable bequests, but to affirm the decision, for the remark is made that they were held valid, without comment. The question was directly in view of the court though not before them.Hamilton's Estate does not ignore the power of the codicil to put in force the first will, but declares it a separate instrument from it. Bradish v. McClellan only declares the codicil a part of the same testament as the first will.

The question raised here as to the period from which this will speaks, based upon the doctrine of republication by a codicil, would make void the charitable bequest given by the original will contrary to the intention of the testatrix. The very act of republication, ipso facto,

would make null and void that which republication by intendment of law reaffirms. I think the validity of the residuary bequest, above quoted from the will, and under which the auditor makes his award, is not affected in any way, by the codicil, and that it does not bring the bequest within the prohibition of the act of 1855.

record proper, or in the testimony before the court below, that would have justified a reversal of his judgment.

The remedy provided by the fourteenth section of the act for neglect to keep the road "in good and perfect order and repair" appears to have been strictly pursued. An inquisition condemning certain portions of the road were taken, returned, and duly served on the plaintiff in error, one of the company's gate keepers. The legal effect of that preliminary proceeding was to suspend the right of the company to demand or receive tolls on the defective portions of its roads, until, in the language of the act, they were put "in good and perfect order and repair." In addition thereto, that clause of the section on which the present action is founded declares if any gate-keeper shall take or attempt to exact tolls for such portions of the road as have been condemned, during the time the same shall continue out of repair, "such keeper shall forfeit and pay to the person who shall prosecute for the same the sum of five dollars, to be recovered before any justice of the peace as debts of equal amount are or may be by law recoverable." The language thus employed clearly indicates that the Legislature intended to avoid technicalities by providing a plain civil remedy for the collection of the penalty as often as it might be incurred. It is to be recovered as a debt of the same amount in an action before any justice of the peace.

The report of the auditor is confirmed. might be incurred.

SUPREME COURT.

Fetterman v. Robbins.

Under the Act of March 19th, 1804 incorporating the

President, Managers, and Company of the Susquehanna and Lehigh Turnpike Road, the directors were bound to

keep the road in repair and good condition; and when not in repair, as found upon the report of viewers appointed to examine the condition of the road, and notice of the

same being given to the toll-keepers, they were not to exact any toll until the road was put in good repair, under a penalty for each collection, recoverable before a justice of the peace. A toll-keeper exacted toll after being notified of the condition of the road, and admitted the fact before a justice of the peace: HELD, that a good prima facie case had been made out against such toll-keeper, which could not be rebutted without affirmative proof that the condemned portion of the road had been put in order. Error to the Court of Common Pleas of Luzurne County.

October 2, 1882. STERRETT, J.-The STERRETT, J.-The case, as presented in the transcript of the justice, is clearly within the jurisdiction conferred by the act of March 19, 1804, and there appears to be nothing in the

The slight discrepancy between the transcript, which shows simply an action of debt, and the summons, in which it is styled "penal debt," is wholly immaterial. Taken as a whole, the records exhits a good cause of action. The inquisition given in evidence, and fully set out in the transcript, together with proof of the service thereof on the defendant below, and his admission before the justice that he thereafter collected toll, all of which are shown by the record, made a clear prima facie case against him, which could not be successfully rebutted without affirmative proof that the condemned portion of the road had been put in good order and reThat was pair before he demanded toll. not done, and the judgment of the justice was, therefore, in accordance with the

evidence before him. Judgment affirmed.

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

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New Trial-Reasons for-Weight of evidence.

Where the question at issue is essentially one of fact, and the case presents the ordinary conflict of testimony a new trial will not be granted on the ground that the verdict was against the weight of the evidence.

Even where the jury may differ in opinion with the court, it is no ground upon which to grant a new trial, where there is a conflict of testimony, or where the cause is submitted on the credibility of the witnesses.

Motion for a new trial.

The ground for the motion is given in the Court's opinion.

W. C. Chapman for motion.
H. L. Fisher, contra.

April 24, 1883. GIBSON, A. L. J.The principal ground upon which a new trial was urged in this case was that the verdict was against the weight of the evidence. But the question at issue was essentially one of fact, namely, whether the tobacco delivered by the plaintiff to the defendant had been fraudulently watered. Many witnesses testified that the tobacco at the time of delivery was wet, and gave their opinions that it had been watered.On the other hand, an important element in determining the fact whether it had been fraudulently watered or not was, the time when it could have been done. It was all in good condition when the defendant inspected it, just three weeks before it was delivered. It was moist then. The persons who bailed it, on the 25th of March, five days before delivery testify that it was done on a damp day and that they put no water on it. Defendants' witnesses say, if it was watered, it must have been done four, five or six days before the delivery. Besides it is in evidence that pouring water on into the bales could not be done, at least, not to any extent to injure the tobacco. The case, therefore, presents merely the ordinary conflict of testimony, in which event, the credibility of the witnesses on either side is for the

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depend upon a preponderance in the number of witnesses. And again, no matter how wet the tobacco may have been, whether it had been made wet by watering or not, was a fact to be arrived at by a process of reasoning, a deduction from facts testified to. The witnesses of the defendant also differ as to the degrees of wetness, and the process of sweating, which is natural to the tobacco packed, was not improbable. Taking the whole case together, there is by no means, that clear and decisive proponderance of evidence, which is necessary to entitle a party to a new trial; Ludlow v. Ins. Co., 2 S. & R. 119.

We submitted in strong terms the full weight of the defendant's testimony to the jury, we also submitted the case of the plaintiff in such terms as left the points favorable to each fairly to the jury. Not to speak of my own leanings as to the correctness of the verdict, on the one side or the other, there is scarcely a cause tried, in which the parties concerned, might not with equal propriety ask for a new trial if the verdict goes against either. Even when the jury may differ in opinion with the court, it is no ground upon which to grant a new trial, when there is a conflict of testimony, or where the cause is submitted on the credibility of the witnesses: T. & H., Sec. Sec. 749. Rule discharged.

Smith v. Inners.

New Trial-Reasons for-Contributory negligence.

Where the defendant, through careless driving, collided with the plaintiff, it is no defence to an action for damages, that the plaintiff was deaf, and therefore did not hear the defendant's cries.

The rule applicible to driving over a rail road track does not extend to an ordinary road.

Motion for a new trial.

S. H. Forry and W. C. Chapman for motion.

John W. Bittenger, contra.

April 24, 1883. GIBSON, A. L. J.— This case involved simply a question of

careless driving. It was submitted to the jury to say, whether or not, there were facts and circumstances, in the case, which could throw the blame upon the plaintiff, or make it appear to be an inevitable accident, in either of which events, the plaintiff could not recover. One who fails to exercise ordinary care in riding or driving is liable for all damages thereby occasioned; Strohl v. Levan, 3 Wright 177, subject to the qualifications just mentioned. The facts were not such as to permit the court to take the case from the jury.

The ground upon which a new trial was chiefly urged, was that of an inadequate instruction to the jury in regard to an infirmity of the plaintiff, submitted in the fourth and fifth points of the defendant. It was contended that the fact of the plaintiff being a deaf man who could not hear the defendant's approach, nor his calls of warning to get out of the way,

a circumstance so extraordinary, concurring with defendant's fault, as ought to relieve the defendant of all liability in the suit. This instruction could not have been given in view of the fact that the defendant testified that he did not see the plaintiff until he was within a few steps of him, and that there was then no time to stop the sled, and that the warning to get out of the way was not in time to enable the plaintiff to do so, and that the defendant might have seen the plaintiff had he been looking in time enough to have avoided the accident. It is not certain, from the testimony, that the halloo ing to each other of those on the sleds occured at this point, yet it was submitted to the jury as though it had.

It was also contended that the plaintiff being deaf and necessily aware of this his defect, he had greater reason for caution and care in advancing; and that under the circumstances the plaintiff was guilty of such negligence himself, in being in the way of danger, and not keeping a sufficient lookout, as entirely defeats his

action against the defendant. This instruction could not have been given in view of the plaintiff's testimony that he did look out, how often-was for the jury to determine.

The rule applicable to a place of danger, such as being on a railroad track, cannot be said to apply to an ordinary road, and I still think, as I said in the general charge, that the fact of the plaintiff being deaf or feeble in any way, does not excuse any want of care on the part of the defendant. Rule discharged.

Sutton v. Coover.

Pleading-Special plea-Validity of.

In an action for trespass on the case for the killing of a dog, the defendant filed a special plea admitting the killing, but alleging that the plaintiff's dogs had been in the habit of worrying his (defendant's) cattle, and that on the night of the alleged trespass some dogs were worrying his cattle, and therefore in the dark he shot and wounded the said plaintiff's dog, and further averring that if any damage was thereby occasioned to the plaintiff it was occasioned by the unlawful trespass and depredations of the said dog. HELD, to be a valid plea.

The matters of fact set out being certain to a common intent, and forming one connected proposition, the plea not objectionable in form.

Motion to strike off special plea. The special plea filed was as follows: "And for a further plea in this behalf the defendant says that just before the time of the alleged shooting of plaintiff's dog by defendant and for a long period prior thereto plaintiff's dogs were in the habit of worrying and annoying his cattle and sheep, hogs and poultry, and that he was frequently compelled to rise at night and drive them away, and that on the night of the alleged shooting dogs were worrying his live stock in the barn yard, and if he had not fired the shot some of them would have been killed, wherefore the said defendant did then and there shoot out of his room-window in the dark as he lawfully might for the cause aforesaid and in so doing did necessarily and unavoidably wound the dog of said plaintiff doing no necessary damage to said plaintiff on the occasion aforesaid. And so the said defendant saith that if any hurt or damage then and there happened to the said plaintiff by reason of the loss of his dog the

same was occasioned by the unlawful trespasses and depredations of plaintiff's said dog on his the said defendant's premises, which are the supposed trespasses in the introductory part of his plea mentioned and whereof the said plaintiff hath above complained. And this the said deAnd this the said defendant is ready to verify." The motion to strike off is:

"The plaintiff by his counsel respectfully moves the court to strike off the special plea filed by the defendant on the 9th day of October, 1882, for the reasons that it is

uncertain, evasive, argumentative and contains nothing that ought to prevail the

defendant as matter of defense."

H. L. Fisher for motion. Jos. Ritner and G. W. Heiges, contra. April 24, 1883. GIBSON, A. L.J. The special plea filed in this case does not lack any quality essential to its validity as such. It is in justification of the trespass charged in the narr. It admits a prima facie right of action in the plaintiff, 1 Chitt. Plead. 557, (1833); but discloses matter tending to destroy that right of action. Nor is the plea objectionable in the manner of its recital of facts. As they are set out they form one connected proposition, and are certain to a common intent; Ibid. 565.The plaintiff's ground of action being the shooting of his dog by the defendant, the question whether the circumstances under which the dog was shot, are or are not a justification of it, is the matter to be tried. Rule discharged.

Hartman v. Hellam Township. Pleading-Special plea-Validity of.

Plaintiff brought suit against defendant for injuries occasioned to plaintiff and his horse, by reason of a road in said township not being opened and graded to its full 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 using ordinary care, and that the plaintiff was not in full control of his team at the time of the accident, and negligently permitted them to cccasion the injuries complained of. HELD, to be valid.

Motion to strke off special plea.

1. The defendant pleads not guilty.

2. And for a further plea in this behalf the said defendant saith that the said plaintiff ought not to have and maintain his said action against the said defendant because saith that the said public road in the plaintiff's declaration mentioned, at the place where the said injury of the said plaintiff is alleged to have happened at the time of the happening thereof was well and sufficiently opened and graded to the width of twenty feet or thereabouts, and

was level from side to side and in suffi

cient repair for all citizens of the Commonwealth using ordinary care with their horses, carriages, buggies, carts, wagons and other vehicles, to pass, repass, and travel over with ease and safety; and the defendant avers that the said plaintiff at the time and place aforesaid, was not in the immediate control of his said team, and negligently permitted his said team to go unguided up and upon the bank in the said plaintiff's declaration mentioned, and to run and draw his said wagon up and upon the said bank and to upset the said wagon and load of wood right in and upon the travelled track of the said public road and that at the time and place aforesaid no other wagon, or other vehicle was passing or occupying any part or portion of the said travelled track of the said road, and that there was then and there no embankment or declivity requiring any guards for the safety of travellers using ordinary care. And this the defendant is ready to verify, &c. Wherefore he prays judgment, &c."

The motion to strike off was as follows:

The Court is respectfully asked to strike off the defendant's special plea in the above case for the following reasons:

1. The allegation that the public road in question was opened to the width of "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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