author: Chief Justice Agnew

text:
    Laros versus The Commonwealth.
    1. It is competent for one expert to testify to the skill of another where the knowledge of the witness is derived from personal observation.
    2. An admission by a prisoner not competent as a confession is admissible when its truth is proved by the revelation of the fact by search.
    3. A court is not bound to hear evidence upon which to ground a presumption of the possible insanity of a prisoner until direct evidence of the prisoner’s insanity has first been given.
    4. In presenting the matters of fact relied on for and against the prisoner’s insanity, the court submitted the fact of the sanity or insanity of the prisoner on the day he purchased the poison as well as on the day it was administered as bearing directly upon the issue. Held, that this was not erroneous.
    5. It was not error to instruct the jury that the terrible nature of the crime will not stand as the proof itself, or an element in the proof of the fact of insanity.
    6. Where a jury have found a verdict against the plea of insanity, when set up as a defence to conviction, and it is alleged in bar of sentence that insanity has occurred since the verdict, the trial of this fact by a jury is not of right, but rests within the discretion of the court.
    March 27th 1877.
    Before Agnew, O J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Oyer and Terminer of Northampton county: Of January Term 1877, No. 86.
    Indictment of Allen 0-. Laros, for the murder, by poison, of his father, Martin Laros.
    At the trial before Meyers, P. J., it appeared from the evidence that on the 31st of May 1876, the family of the deceased, consisting of himself, his wife Mary, his children Irvin, Alvin, Clara, Alice, the prisoner Allen, a grandchild Flora, and a man named Moses Schug, who boarded with the family, all sat down to take supper. Shortly thereafter one after another of those at the table, in quick succession, were taken suddenly and violently ill. The symptoms of all were alike, differing however in degree, the mother, father and Schug being most violently affected, and the small child Flora and the prisoner the least. All the family were compelled to leave the table. This sudden attack of sickness was followed almost immediately with vomiting and purging, .griping pains, cold and clammy skin and excessive prostration. From the effect of this sickness Mary Ann Laros, the wife of Martin Laros, died at seven o’clock on the following morning, Martin Laros about one in the afternoon, and Moses Schug on the following day in the afternoon. Two of the family testified as to the peppery taste .on their lips and tongues and burning sensation in the throat produced by drinking the coffee at the supper, and two physicians testified to a like sensation experienced from actual experiment with white arsenic in solution. It was in evidence that all partook of the coffee except perhaps the prisoner. A post mortem examination discovered traces of arsenic in the stomach of the deceased. In the coffee-pot, which had been used by the family, a white sediment was found, which upon analysis was discovered to be arsenic, and from appearances about four ounces and a half had been deposited therein. The analysis was made by Dr. Mclntire, a reputable physician of Easton, and Mr. Davidson, of Lafayette College, according to the most approved scientific tests, and both pronounced the sediment to be arsenic. It was shown that the prisoner, a day or two before the poisoning, had purchased in a drug store in Easton of Dr. Yoorhees about four and a half ounces of arsenic, for the purpose, as he alleged, of killing rats, and that at the same time he had bought a bottle of Brown’s Camphorated Dentifrice. The prisoner, subsequent to the poisoning, made declarations to witnesses about having made such a purchase of the dentifrice about the time named and the bottle was found in the house of the deceased. He also made certain declarations about the concealment ’of money belonging to the deceased and Moses Schug, and money was found at the place indicated. William Schug testified that in reply to a question as to what he meant by doing a deed of that kind, alluding to the poisoning, the prisoner said, “ Bill, I don’t know why I done it; I had no cause to do it, and I am sorry it is the way it is; but it is too late.” It appeared that the prisoner was at home an hour or two previous' to the supper and could have had opportunity to have deposited the poison in the coffee-pot.
    The defence was that the prisoner, at the time he committed the act, was insane and therefore not criminally responsible, and much testimony was given in regard to his being subject to epileptic fits and the effects therefrom on the mind of the prisoner.- It was also attempted to be shown that there was an hereditary tendency to insanity in the family of the prisoner. The assignments of error were thirty-three in number, but those only are noted here which are passed upon by this court.
    The 7th assignment was that the court erred in permitting Dr. Green to testify as to the knowledge and qualifications of Dr. Mc-Intire to make a chemical analysis.
    The 8th, in permitting Dr. Green to testify to the correctness of the tests made by Dr. Mclntire.
    The 9th, in permitting Dr. Green to testify whether the methods used by Mr. Davidson to ascertain the existence of arsenic were scientifically correct.
    The 10th, in permitting Dr. Yoorhees to testify that the prisoner, before the coroner’s inquest, when under oath and suspected of the murder, admitted to him or in his presence that he had purchased ■a bottle of “Brown’s Dentifrice”' from him in Easton, similar to the one then produced.
    The 11th, in permitting the Commonwealth to prove by William Bitters, the deputy constable, certain admissions of the prisoner relative to the concealment of money belonging to his father and Moses Schug.
    The assignments, from the 13th to the 19th inclusive, embraced the following offers of evidence, which the court refused. To prove by the brother of the prisoner that the paternal grandfather of the prisoner acted in á manner indicating unsoundness of mind; to show while the prisoner was a member of his father’s family how his father educated and brought up his family with reference to religious and moral instruction and conduct; to show whether the treatment of the prisoner by the father and the rest of the family was kind or not; to prove that the brother of the prisoner committed suicide by hanging himself without any apparent cause ; to prove that the uncle of the mother of the prisoner is insane and has been for years; to prove that the brother of the prisoner’s grandmother on his father’s side committed suicide by hanging himself without any known motive; all these offers as evidence for the jury upon the question of the insanity of the prisoner.
    The 20th, that the court erred in refusing the defendant’s third point, which was as follows :—
    3. That the case of the Commonwealth being one of circumstantial testimony, it must to a moral certainty exclude every other hypothesis but the one of the death of the deceased by arsenious acid through the criminal agency of the defendant.
    The 21st was the answer to the fourth point, which was as follows :—
    4. ,If the jury find beyond a reasonable doubt that Martin Laros was poisoned by the defendant, and further find by the weight of the evidence that at the time the act ivas committed the prisoner was incapable of judging whether or not the particular act which occasioned death was criminal, or if he knew it was criminal, but was impelled to the consequences which he saw and understood, but could not avoid, and Avas placed under a coercion from mental -disease, Ayhich, AA'hile the results of the act were clearly perceived, he Avas incapable of resisting, the verdict must be, “Not guilty, by. reason of insanity.”
    AnsAver. “ So much of the point ending with the word ‘ criminal,’ in the seventh line, is affirmed. The remaining part of the point is not affirmed, as the evidence submitted to the jury is not applicable to the legal principle (if true) contained in the part of the point.”
    The assignments, from the 22d to the 26th, inclusive, were the refusals by the court of the folloAving points of defendant:—
    5. That murder by poison is only presumptively murder in the first degree, and if upon the Avhole of the evidence the jury are not satisfied beyond a reasonable doubt that the mind of the prisoner at the time of -the act Avas so free from mental disease as to alloAV him to deliberately premeditate the death of the deceased, and they •are satisfied beyond a reasonable doubt of the poisoning of Martin Laros by the defendant, the verdict must be guilty of murder in the second degree, if they should not find him not guilty by reason of insanity.
    8. If from the evidence in the case the jury should find beyond a reasonable doubt that Martin Laros died of poison administered by the defendant, but should have a reasonable doubt as to the sanity or insanity of the prisoner at the time of the commission of the alleged act of poisoning, it is their duty to convict of murder in the second degree.
    9. The ability to distinguish betAveen right and Avrong in the particular act is not the sole test of criminal responsibility, and if, the fact of poisoning having been found beyond a reasonable doubt, the jury are satisfied by the preponderance of the evidence in the case that the prisoner, although cognizant of the moral quality of the act at the time, Avas not able to resist the impulse to commit the act by reason of mental derangement, it is their duty to render a verdict of not guilty by reason of insanity.
    11. If the jury are satisfied by the weight of the evidence that at the time of the commission of the alleged act of poisoning the prisoner was laboring under mental derangement, whether partial or general, of a degree sufficient to have controlled his will, and to have taken from him freedom of moral action, the verdict of the jury should be not guilty by reason of insanity.
    12. If by reason of mental derangement existing at the time the defendant had not power to control the disposition to commit the particular act, lie is not responsible therefor, and the verdict must be not guilty by reason of insanity.
    The 27th assignment was the following portion of the general charge:—
    “ There is no evidence in the case showing that even if Allen O. Laros was at any time laboring under a general or partial insanity, he was ever subject to delusions or to homicidal mania, or that in consequence of such delusion or homicidal mania he committed the act with which he is charged. The only'and remaining question is, was Allen C. Laros, at the time of committing the act, laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he Avas doing, or if he did know it that he did not know he was doing Avrong.”
    The 28th assignment was the portion of the general charge folloAving in brackets:—
    “ We have already stated to you that the defendant is presumed to' be sane, and the burden is on him to prove to your satisfaction that he was insane. [You cannot, however, infer insanity from the heinous and atrocious character of the crime, or to constitute it as an element in the proof of actual insanity.]”
    The 80th, was the portion of the general charge following in brackets:—
    “ In either event, whether you find that the prisoner had or had not epilepsy, it will be your duty to examine all the testimony carefully in all its details to ascertain the condition of Allen C. Laros's mind from 1872 up to the 31st of May 1876. You will ascertain hoAV many attacks of convulsions he had, their force, 'character and duration, whether he had any stupor or disorder of the mind immediately preceding and succeeding each convulsion, as well as their character and duration. You will ascertain what effect these convulsions had upon his mind, health, disposition and temper. You will examine into all his acts and conversations as detailed by the witnesses, whether in the school room, at home, in the highways or wherever the witness placed him, up to the 31st of May last and immediately afterwards. [You will compare the testimony of witnesses as to his sanity or insanity, carefully scrutinizing the facts upon Avhich they were found, and after having exhausted all the evidence bearing on the question of sanity and insanity, it Avill he for you to say whether or not Allen C. Laros has satisfied you by the weight of the evidence that on the evening of the 31st of May, as well as on the day it is alleged that he purchased the white arsenic, he was insane and not criminally responsible for the commission of the crime charged against him.]”
    The jury rendered a verdict of murder in the first degree. When the prisoner was called for sentence his counsel filed the following plea in bar of sentence:—
    “Noay, the 30th day of October A. D. 1876, the defendant, being present in court, and being now asked here what he has to say for himself why the court should not proceed to judgment and execution upon the verdict of the jury for murder in the first degree, he, by his counsel for plea in bar of the sentence of the court, saith that since the commission of the offence for which the defendant was indicted, and since the verdict aforesaid, he has become, and is now insane, and this he is ready to verify and prove. Whereupon he prays judgment, &c.”
    The district attorney filed'the following replication:—
    “And now, October 30th 1876, the Commonwealth, by John C./ Merrill, district attorney, for answer to the plea of the defendant why sentence should not be pronounced upon him, says that the said defendant has not become and is not now insane, and the said Commonwealth, therefore, prays that the judgment of the law be pronounced by the court upon the said defendant.”
    To this replication the defendant’s counsel demurred, on the grounds,
    1. That the district attorney tenders no issue by his replication and no mode of trial.
    2. That the replication should tender a trial by the country, being a traverse of matter of fact.
    3. That it prays judgment of the court upon the question as a matter of law.
    4. That the said replication is, in other respects, uncertain, informal and insufficient.
    The court overruled this demurrer.
    The prisoner’s counsel on the same day filed another plea in bar of sentence, which averred that at the time of the charge of the court to the jury and at the time of the delivery of the verdict the said defendant was laboring under temporary insanity, produced by epilepsy or some other nervous disease, and was totally incapable of understanding and was actually unconscious of the proceedings attending the charging of the court and the rendition of the verdict, and this he is ready to verify and prove, wherefore he prays judgment, &c.
    The district attorney moved that this plea be stricken off, for the reason that the matters therein alleged cannot now be heard, as they are without the jurisdiction of the court, which motion the court sustained.
    The prisoner was then called by the court, who proceeded to interrogate him for the purpose of testing the question of his insanity.
    They then sentenced the prisoner to be hanged.
    The defendant then took this writ, the assignments of error being those heretofore noted, and the following relative to the proceedings subsequent to the verdict.
    31. The court erred in overruling the demurrer of the defendant to the replication by the Commonwealth to the prisoner’s plea in bar of the sentence filed October 30th 1876.
    32. In proceeding to sentence the prisoner without directing a trial of the question of his insanity, as raised by his plea in bar of the sentence, before a jury.
    33. In interrogating the prisoner for the purpose of trying the question of his insanity, as raised by his plea in bar of sentence.

      W. S. Kirkpatrick and Henry W. Scott, for plaintiff in error.
    After a witness has been admitted to testify as an expert, evidence cannot be given to the jury of the opinions of other experts in the same science, as to whether the witness was qualified to draw correct conclusions in the science on which he had been examined : Tullis v. Kidd, 12 Ala. 648; DePhue v. State, 44 Id. 32.
    The objection to the questions covered by the 8th and 9th assignments, was in permitting the witnesses to testify to conclusions which were the province of the jury to determine. Confessions and admissions made before the coroner by the person suspected are not admissible: Commonwealth v. Harman, 4 Barr 269 ; Greenleaf’s Ev., vol. 1, sect. 226; Rex v. Tubby, 5 C. & P. 530; Reg v. Owen, 9 Id. 238; Reg v. Garbett, 2 C. & K. 474; Rex v. Lewis, 6 C. & P. 161; Rex v. Davis, Id. 177.
    In the offer excepted to .in the eleventh assignment it was-proposed to prove the admissions of an independent and distinct offence: East’s Pleas of the Crown 658. It is always pertinent to give in evidence, in issues involving insanity, the instances of mental unsoundness in the direct ancestry of the party whose sanity is in- question, especially when offered in corroboration of other evidence tending to show insanity: Wharton & Stille’s Med. Jur., vol. 1, sect. 373, quoting the opinion of Gibson, C. J., in Smith v. Kramer, 1 Am. Law Reg. 353, where this doctrine is ably vindicated. The social and family surroundings are an important element in passing upon the conduct of men and determining whether their conduct indicates sanity or insanity. The education and religious instruction to which a person was subject is certainly important in determining whether the conduct submitted as evidence of insanity is the natural and probable result of early neglect and vicious influences, or whether it is exceptional, extraordinary and counter to the usual influences on character resulting from proper education and training.
    Evidence of insanity is not to be limited to the immediate relations of the prisoner : Whart. on Med. Jur., vol. 1, sect. 375; Baxter v. Abbott, 7 Gray'(Mass.) 81; Christiana Edmunds’s Case, referred to in Whart. on Med. Jur., vol. 1, sect. 375.
    Suicide is an act so contrary to all human instincts that it has almost the force of a presumption of insanity.
    The doctrine contained in the 4th, 9th, 11th and 12th points has been abundantly sustained in this state: Mosler v. Commonwealth, 4 Barr 267; Ortwein v. Commonwealth, 26 P. F. Smith 424; Brown v. Commonwealth, 28 Id. 122; Commonwealth v. Winnemore, 1 Brewster 370 ; Commonwealth v. Freth, 3 Phila. 105; Whart. Med. Jur., vol. 1, sect. 160.
    The atrocity of an act when isolated and alone would not be proof of insanity ; perhaps it'would not be evidence from which it could be inferred. But when connected with the othef facts in this case it was highly proper “as an element in the proof,” and in connection with the offer contained in the 14th and 15th assignments of error, which we were prepared to prove as proposed, but were refused.
    The court erred in the 30th assignment. The defendant was to prove by the weight of the evidence that he was suffering from a temporary insanity, produced by epilepsy, at the time of the commission of the crime; this the jury might have found, if to it had not been added-the other requirements by the charge of the court, which the defendant was not called upon to prove either by the weight of the evidence or by any evidence. It was no part of the case. If the prisoner had purchased the poison, it might have been for an innocent purpose; and if for a guilty purpose, it may have been totally different from that alleged by the Commonwealth; and if purchased for the identical guilty purpose charged against him, he-was entitled to be acquitted upon the ground of insanity, if he proved himself mentally irresponsible at the time of the crime.
    For trial by jury on the question of insanity, the court below substituted that “by inspection and examination.” In this we submit the. court was in error, as the defendant was entitled to a venire for jurymen to whom to submit the proofs for his plea. The constitutional rights of the prisoner were violated in the examination to which he was subjected by the court.

      J. C. Merrill, District Attorney, and JEdward J. Fox, for defendant in error.
    Dr. Green was not asked for his opinion, but what was his knowledge of Dr. Mclntire’s capacity. The rule of law, which excludes admissions made before a coroner at the inquest, will not apply to the admissions made by this prisoner: Rex v. Butcher, 1 Leach 301; Warickshall’s Case, 2 East P. C. 268; Rex v. Gould, 9 C. & P. 364; Hudson v. State, 9 Yerger 408; 1 Greenl. Evid. 231; Archibald’s Crim. Prac. & Plead., vol. 1, p. 424. A moral or immoral education would in no way tend to show an insane taint in the prisoner’s constitution; nor would the kindness or unkindness of his family towards him reflect upon his sanity. The questions do not involve any act or conduct of the prisoner indicating unsoundness of mind. A crime because unnatural is in itself no proof of insanity: Commonwealth v. Mosler, 4 Barr 268; Ortwein v. Commonwealth, 26 P. F. Smith 425. In Commonwealth
      v. Mosler, supra, it was held that a man was not responsible if impelled by a coercion drawing the mind to consequences which it saw, but could not avoid or resist; but here it is contended he is not responsible, if it not only saw, but understood them. This is an unreasonable limit to which to extend the doctrine of irresistible impulse as an excuse for crime.
    There was no evidence to show that at any time or upon any occasion the defendant had not freedom of will or moral action. Because he was subject to hallucinations or delusions does not disprove this fact. A man may be sane upon a single topic and insane upon another ; unless insane-upon the subject of crime he would be responsible: Whart. Crim. Law, sect. 23.
    The evidence in this case does not support the theory in regard to epileptic fits, and their effect upon the mind of the prisoner, or their effect generally.
    It would be impossible for courts to try and sentence criminals, if each man might, by pleading insanity after verdict, compel the empanelling of a jury to try the facts.
    A method is provided to ascertain the truth of such an allegation after verdict by the Act of May 14th 1874, Pamph. L. 160, sect. 1and as the prisoner did not adopt this method, the court, after satisfying its conscience by inspection and examination, had a right to pronounce sentence, and this examination and inspection, we submit, is a question that is left to the discretion of the court and trial by jury is not of right: Bond v. Tennessee, Mart. & Yerg. 143; Freeman v. People, 4 Denio 19, 20; 4 Black. Com. 395.
    June 11th 1877.
   Chief Justice Agnew

delivered the opinion of the court,

On reading these assignments of error the first impression is that some of them must be sustained. But a careful review of the testimony, running in its current and along with the bills of exceptions as they were taken, discloses that they are groundless. The case was carefully tiled, and the rulings fair and substantially correct. In such a case as this slight inaccuracies, doing no substantial hurt to the prisoner, ought not to turn aside the course of justice. The desperate condition of offenders often leads to many shifts to escape. Insanity is a common resort, but the burthen of its proof lies on the prisoner, and it is not every proposition he makes must be allowed, especially when it tends to mislead the jury.

Some of the assignments were not proper and others pressed are not tenable. We shall confine our discussion to those most strongly urged. The objection to the question to Dr. Green as to his knowledge of Dr. Mclntire’s learning in the science of chemistry and his qualification to make an analysis quantitative and qualitative is not sustained. Dr. Mclntire had testified to his own knowledge and competency, and the testimony offered was only confirmatory. The question related to Dr. Green’s knowledge, as a matter of fact, derived from observation. It Avas not á question of mere reputation, but of Dr. Green’s OAvn knowledge, acquired from full opportunity of observation. If I have seen a Avorkman doing his work frequently, and knoAV his skill myself, surely, if I am myself a judge of such Avork, I can testify to his skill.

The 8th and 9th assignments have even less ground of support. Dr. Green being himself a skilful expert, it Avas competent for him 'to testify to the correctness of the tests used by Dr. Mclntire, as stated by him in his testimony.

The 10 th assignment is‘unsubstantial. It is needless to inquire into the competency of the testimony of the prisoner, before the coroner’s inquest, Avhen Dr. Yoorhees himself testified to the fact admitted by the prisoner. The doctor sold him the bottle of dentifrice when he sold him the arsenic, and identified the prisoner as the purchaser. Nor is it necessary to inquire into the competency of the confession made to William Bitters, relative to the concealment of the money, referred to in the 11th assignment, when it is proved that in consequence of the information search Avas made at the place described by the prisoner, and the money found there. An admission not competent as a confession is admissible when its truth is proved by the revelation of the fact by search.

The assignments of error from the 13th to the 19th inclusive may all be disposed of in a breath. They were all offers collateral or secondary to the proof of insanity, and Avere not admissible until direct evidence of the prisoner’s insanity had been given. A court is not bound to hear eAÓdence of the insanity of a man’s relatives, or evidence of his proper instruction in morals and religion, or of the kind treatment of his relatives and friends, as grounds of a presumption of possible insanity, until some evidence has been given that the prisoner himself has shoAA'n signs of his own insanity. Noav when these offers were made,- no evidence of his own insanity had been given. That he had at long intervals before the Aveek of the murder suffered spasms or fits of some kind affecting him- bodily is all that had been proved, but no mental unsoundness has been sho^n. These offers were not renewed after evidence was given of an affection resembling epilepsy, and a possible epileptic insanity. Indeed the eAddence of even a possible epileptic insanity was so weak it would scarcely have been substantial error to reject the evidence a second time. It must not be forgotten that according to the evidence, or even according to common observation, epilepsy is not commonly followed by insanity, until after a long time from the first attack, and that the proof of epilepsy furnishes no immediate presumption of insanity. There was no error in the rejection of these offers when made.

The 20th assignment is not supported by the fact asserted in the point. The case was not one wholly of circumstantial evidence. There was the prisoner’s admission of his act mad^ to William Schug. In answer to Schug’s question, what he meant by doing a deed of that hind, he said: “ Bill, I don’t know why I done it; I had no cause to do it, and I am sorry it is the way it is; but it is too late.” The circumstances themselves were very strong. The purchase of the poison, its quantity, the quantity found in the coffee-pot, and the facts attending the poisoning, were very direct.

The assignments from the 21st to the 27th inclusive are subject to the same infirmity : the insufficiency of the evidence of insanity. The only possible question was that of epileptic insanity, and this the court submitted to the jury very fairly. It may be said-of all these points, in view of the evidence, they were abstract and unsubstantial.

The 28th assignment presents an apparent difficulty. Standing isolated from the charge it seems to be unsound. But taken in its proper connection, and according to the meaning of the court, the latter branch of the sentence which contains the alleged error is not justly chargeable with error. The court had said, the only remaining question is upon the insanity of the prisoner, that he is presumed to be sane, and the burden is on him to ¿.prove to your satisfaction that he is insane. Then the objected sentence follows: “ You cannot hwever infer insanity from the heinous and atrocious character of the crime, or to constitute it as an element in the proof of actual insanity.” The court did not mean to say that when proof of insanity is given the horrid and unnatural character of the crime will lend no -weight to the proof; but meant only that the terrible nature of the crime will not stand as the proof itself, or an element in the proof of the fact of insanity. There is a manifest difference between that Avhich is actual evidence of a fact and that which merely lends weight to the evidence Avhich constitutes the proof. This is all the court meant. That part of the charge con-tained in the 30th assignment is not objectionable when read with its context and properly understood. The court did not say that the jury must find insanity on the day of the purchase of the pqison in order to acquit. On the contrary, the jury ivero instructed in several parts of the charge that the insanity must have existed at the time of the commission of the offence. The paragraph containing the sentence objected to Avas employed in presenting the matters of fact relied upon by both sides as evidence upon the question of epileptic insanity preAnous to the time of the poisoning. The fact of sanity or insanity on the day of the purchase of the poison had a very direct bearing on the fact of insanity when the poison Avas administered. Hence the court properly submitted the fact of sanity or insanity on both days, as bearing directly upon the issue, but not as both necessary to an acquittal.

The last three assignments of error raise a single question upon the poAver of the court to inquire by inspection and per testes into the insanity of the prisoner since verdict. We have no precedents in this state, known to us, how the inquiry shall be conducted when such a plea in bar of sentence is put. in. It seems to us, however, that no right of trial by jury is involved in the question. A jury having found a verdict against the plea of insanity when set up as a defence to conviction, subsequent insanity cannot be set up in disproof of the conviction. The plea at this stage is only an appeal to the humanity of the court to postpone the punishment until a recovery takes place, or as a merciful dispensation.

The rights of the prisoner as an offender on trial for an offence are not involved. He has had the benefit of a jury trial, and it is now the court only which must be satisfied on the score of humanity. If the right of trial by jury exist at all, it must exist at all times, no matter how often the plea is repeated alleging insanity occurring since the last verdict.- Such a right is incon- „ sistent with the due administration of justice. There must be a sound discretion to be exercised by the court. If a case of real doubt arise, a just judge will not fail to relieve his own conscience by submitting the fact to a jury.

The sentence of the Court of Oyer and Terminer is affirmed, and the record is ordered to be remitted, for the purpose of carrying the sentence into execution according to law.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Wolbach et ux. versus The Lehigh Building Association.
    The provisions of the fourth and sixth sections of the Act of April 12th 1859, relating to building associations, do not apply to borrowers who are not members of the association, or who are not sui juris and incapable of acquiring membership therein, and where, therefore, a married woman gives a mortgage to one of these associations to secure the payment of a loan, together with fines, premiums and dues, the association can only recover from her the amount actually loaned, with legal interest, and this notwithstanding the amount received by her was expended in the improvement of her separate estate.
    March 28th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. SharsWood, J., absent.
    Error to the Court of Common Pleas of Northampton county: Of January Term 1877, No. 161.
    This was a scire facias sur mortgage issued by the Lehigh Building Association against Peter Wolbach and Catharine his wife.
    The building association was incorporated under the Act of April 12th 1859, Purd. Dig. 188.
    Catharine Wolbach owned a lot near Easton, Pennsylvania. She borrowed $1300 from the building association, and on the 29th of October 1874 executed jointly with her husband a bond and a mortgage upon this lot to secure the payment, as conditioned in the mortgage, of $1800, with legal interest from the 20th of October 1874. She subscribed at the same time for nine shares of the stock of the association, upon which, by the terms of the charter and bylaws, monthly payments were to be made. She made default in the payment of the fines, dues and interest, and this scire facias was then issued.
    The affidavit of claim set forth that this suit was founded upon a mortgage given to secure the payment of money borrowed from plaintiff by Mrs. Wolbaeh for the improvement of her separate estate, the title to which was at the time and still is in her name; that the money so borrowed was actually applied to the improvement so owned by Catharine Wolbaeh and bound by this mortgage; that the said Catharine Wolbaeh and Peter Wolbaeh her husband, did “suffer and allow the monthly dues of $9 per month, due on the nine shares of stock standing in the name of Catharine Wolbaeh on th.e books» of the association, and by her transferred to the said association as collateral security for the re-payment of the amount due thereon, to be and remain due and unpaid for the space of six months,” before bringing this suit, and did also “suffer and allow the interest on the sum of $1800, the amount secured b.y this mortgage, being due monthly by the provisions of said mortgage, to be and remain due and unpaid for the space of six months” before bringing this suit. And did further “ suffer and allow the fines imposed in accordance with the constitution and by-laws of said association, the amount of which appeared by an exhibit annexed, to be and remain unpaid for the space of six months,” before bringing this suit, by reason of which this said mortgage became due and payable immediately; and the said nine shares so as aforesaid held by the said Catharine Wolbaeh, were, by the said association, plaintiff above named, declared forfeited on the 28th day of March A. D. 1876 ; that the said defendants are entitled to be credited with the payment of the sum of $266.90, the amount paid to the association on account of fines, dues and interest, to be paid according to the terms of said mortgage; that there is now due and unpaid from these defendants to said plaintiff the amount of said mortgage, to wit, the sum of $1800, the further sum of $477.01 due for fines, dues and interest, at the time of bringing this suit, upon which the said defendants are entitled to a credit of $266.90 paid to the said plaintiff on account of the dues, fines and interest as aforesaid, imposed according to tlie provisions of the constitution and by-laws of the said association.
    The association, therefore, claimed $2010.11, as the amount due.
    Wolbaeh and his wife, in an affidavit of defence, averred that the mortgage was given to secure the payment of money loaned to the defendants, and that the sum loaned and received by the defendants was $1300, that-there had been paid by defendants to plaintiff, on account of said loan, $266.90, and that there is only due, therefore, to plaintiff the balance of said $1300 and interest less the above sum.
    The court granted a rule to show cause why judgment should not be entered for the full amount of the mortgage, notwithstanding the affidavit of defence, which rule was made absolute, and judgment was entered in favor of plaintiff for $1932.56, being for $1800, the amount of the mortgage with interest and costs, less the amount paid on account of interest.
    This entry of judgment was the error assigned.

      Edward J. Fox, for plaintiffs in error,
    contended, that being a married woman, Mrs. Wolbach could not make a contract with a building association to pay dues and fines, and that she was consequently liable to pay only the amount loaned with interest, and cited in support of this contention: Glyde v. Keister et al., 8 Casey 87 ; Caldwell v. Walters, 6 Harris 81; Mahon v. Gormley, 12 Id. 82 ; Magaw v. Stevenson, 1 Grant 404.

      Henry W. Scott, for defendant in error.
    If the contract of the defendants with the association was good for the amount of money, actually received, and which was applied to the improvement of the estate of Mrs. Wolbach, the excess, representing the premium paid and the interest upon the whole, is expressly provided for by Act of April 12th 1859, Pamph. L. 544: “ No premiums, fines or interest on such premiums that may acferue to said corporation, according to the provisions of said act, shall be deemed usurious; and the same may be collected as like amounts are now by law collected in the Commonwealth:" Jarrett v. Cope, 18 P. F. Smith 67 ; Selden v. Building Association, 2 Weekly Notes 481. In the latter case the-precise point at issue here was decided; for there the mortgage was given by husband and wife.
    A married woman may encumber her separate estate by a mortgage for its improvement, and make a contract for its improvement, and borrow money for the purpose, if, in fact, the money is actually so applied: Heugh v. Jones, 8 Casey 433 ; Murray v. Keyes, 11 Casey 384; Lippincott v. Hopkins, 7 P. F. Smith 328; Wightman’s Appeal, 5 Casey 282-3; Lippincott v. Leeds, 1 Weekly Notes 230; Barto’s Appeal, 5 P. F. Smith 386.
    In Black v. Galway, 12 Harris 18, it is held that a married woman may mortgage her separate property for debts of her husband, and may covenant for a writ of scire facias immediately upon default.
    In Glass v. Warwick, 4 Wright 140, a married woman had given her bond and mortgage for purchase-money. In the bond, it was conditioned that “ the principal should be collected as fully due upon default made for six months in payment of interest;” and it was held that the contract was good.
    Where the conditions or waivers are part of the contract itself, and of the consideration, a married woman is bound; this principle is supported also by Miner v. Graham, 12 Harris 491; Patterson v. Robinson, 1 Casey 82.
    May 7th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The mortgage in this case having been executed by the plaintiffs in error and duly acknowledged in the form prescribed by the Act of Assembly, it cannot be questioned that it is, in form, a valid pledge of the separate property of the wife; but it is contended that under the admitted facts the mortgagee is not entitled to recover the full amount of the mortgage debt. The question then is, whether the defendant in error is entitled to recover the whole or only a portion of the debt.

The supplemental affidavit of claim and recitals in the mortgage show that it was not intended as security for the debt of the husband for money loaned to him; on the contrary, it is distinctly averred that it was given to secure a loan to the wife for the improvement of her separate estate, and that it was so applied. It appears that she undertook, as a member of the association, to borrow, on her stock, the amount authorized by the charter; and, according to the affidavit of defence, the net amount received was $1300. The.bond secured by the mortgage is conditioned for the payment of $1800 with, interest monthly until each share of stock shall be worth $200, at which time the principal will be due and payable; with the proviso, that if she suffers the monthly payments of interest on the loan, or the monthly dues on the stock, or the fines, imposed in accordance with the constitution and by-laws of the association, to be and remain unpaid for the space of six months, then and in either event the principal shall become due and payable immediately. By assuming to become a member of the association she undertook to pay the monthly dues on her stock and subject herself to the payment of fines; and when she procured the loan she further undertook to pay, or, what is the same thing, allow the association to retain and deduct, from the nominal loan, the bonus of $500, and tó pay interest on the whole. In addition to this she assigned her stock as collateral security for the monthly dues. To sum up the result of the transaction in its financial aspect, she became connected with the association in October 1874; received from it $1300; paid in on account of fines, dues and interest, $266.90 ; and when suit was brought in April 1876, after her stock had been forfeited to the association, she was still indebted, according to the affidavit of claim, in the sum of $2010.11.

From the facts thus briefly stated, the connection of Mrs. Wolbach with the transaction out of which the mortgage arose, and 'the purpose for which it was given, are readily understood. It must be manifest that it was intended to secure the performance of her undertaking as a shareholder and debtor of the association. It cannot be pretended, simply because her husband is a party to the bond, that the mortgage was given to secure his individual indebtedness. It is not claimed that he received any of the money. All that was paid was received by her and applied to the improvement of her separate estate. His relation to the bond is not that of principal, but rather in the nature of surety for her. Regarding the mortgage then as a security for the undertaking of the wife as a shareholder and debtor of the Building and Loan Association, how far has it the right to enforce the security against her separate property ? It will not be questioned that it may do so to the full extent of her liability, legal or equitable, but beyond this it has no right to go. The questions then arise, what was the extent of the wife’s indebtedness, how far was it competent for her to bind herself, and to what extent did she make herself liable by assuming to become a member of the association and afterwards a borrower on the terms and conditions above indicated ? The principles of law in relation to- the power of a feme covert to make contracts and incur liabilities must furnish the answer to these inquiries. In general, she is incapable of contracting debts and incurring liabilities. Her capacity and liability are exceptional, and whoever seeks to charge her or her separate estate must bring his ease within one of the exceptions. Some of these exceptional cases have their foundation in the Act of 1848 ; others arise by necessary implication from her right to own, use and enjoy her separate property. While the Act of 1848 was a great innovation upon the common law, “its purpose was to secure the wife in the use and enjoyment of her separate property, not to enable her to make contracts she could not have made before. There is nothing in it which expressly removes her common law disability to contract,” unless it be in the provision which authorizes her to purchase necessaries for the use of herself and family, and thus render her separate estate liable for the claim, in case it cannot be collected from her husband: Brunner’s Appeal, 11 Wright 73; but her separate estate cannot be charged for necessaries furnished upon the joint contract of herself and husband; Berger v. Clark, 29 P. F. Smith 343. If, in purchasing land, she gives a judgment bond, or a mortgage executed by herself, to secure the purchase-money, the land alone is bound, while she herself incurs no personal liability: Patterson v. Robinson, 1 Casey 82; Glass v. Warwick, 4 Wright 145. In such cases the securities against the land are upheld and enforced on equitable grounds, to prevent the gross injustice of permitting her to withhold the price and retain the land. When it is necessary for the preservation and enjoyment of her separate estate she may, from the very nature and exigency of the case, contract for its repair and improvement: Lippincott et ux. v. Hopkins, 7 P. F. Smith 828; Lippincott v. Leeds, 27 Id. 420; but, her bond given for such a debt is void; nor is she liable for money borrowed or a debt contracted for the avowed purpose of improving her separate estate unless it is shown that the money or material has been so applied : Heugh v. Jones, 8 Casey 432.

These cases, and many others that might be cited, clearly show, as remarked by the chief justice in Berger v. Clark, supra, that the endeavor of this court has been to so construe the act as to advance its true purpose, and not to make the wife’s-condition less favorable by an interpretation that endangers her real interests. “ Hence, in interpreting the special clauses relating to the debts for which she may be held liable, the cases show that they have been so construed as to limit them strictly to the purpose of protection, and not loosely so as to expand her contract capacity and liability.” The whole course of decisions on the subject shows that this rule of construction has been rigidly adhered to, and it would be a wide departure from it, indeed, to hold that a married woman may assume liabilities such as were undertaken in this case. Mrs. Wolbach’s contract engagements with the association, to which we have already referred, are entirely outside-of-the principles on which any of the exceptional cases rest. To hold otherwise would be to greatly expand the contract capacity and liability of the wife, and instead of being a protection to her interests would prove to be a snare. The present case is an illustration of the disastrous consequences to which it would lead. In less than three years after she became a member, we find the association seeking to 'enforce against her separate estate a claim for over $2000, the net consideration for which was but little over half that sum. We might with equal propriety hold that she could unite with others in entering into a contract to build a railroad, or any other adventure or speculation, and pledge her separate property for the payment of her portion of the outlays and losses.

Erom what has been said we are justified in concluding that Mrs. Wolbach was incapable of incurring the liabilities she undertook to assume by becoming a member of the association; but it does not follow that she is wholly exempt from all responsibility under the mortgage. Having received, for the purpose of improving her separate estate, the sum of $1300, which was applied to that object, her separate property is liable, on the principles above stated, for this amount and interest thereon, less the payments made by her.

It may be claimed that, inasmuch as the premiums, fines and interest on premiums are by the Act of 1859 not deemed usurious, she is also liable for these. This would be so, perhaps, if she were sui juris capable of acquiring membership and assuming the obligations incident thereto. If she was incapable, as we hold she was, by reason of coverture, she could not be liable. The provisions of the law under which the defendant in error was incorporated show that such associations are not chartered for the purpose of loaning money generally. It is a mistake to suppose that they have any such power. The fourth section of the Act of 1859 makes it their duty to offer, at stated times, the money in the treasury, and loan it in open meeting to the stockholder who shall bid the highest premium; and, in declaring that premiums and fines shall not be deemed usurious, the act evidently refers to those paid by members only. It was intended to regulate the dealings between them and the association, and not between it and those who are not members or incapable of acquiring membership.

The judgment is therefore reversed and procedendo awarded.

Mercur, J., dissented.


author: Mr. Justice Mercur.

text:
    Main et al. versus Ryder et al. Same versus Miner et al.

    1. Under the Act of the 27th January 1848, the execution of a will is valid where the testator affixes his mark thereto, although able to write his name.
    2. It seems, however, that although the testator’s name should be written to a will at his request and in his presence, and with the intent that he should affix his mark thereto, the execution will not be valid if he failed to so affix it.
    3. Where the testator lived with a woman to whom he was not legally married, and she and her offspring were the devisees of a large portion of his property, these circumstances do not create a presumption that the will was executed under improper influences, and while this illicit relation should
    ’be considered in determining the question of undue influence, the effect of such testimony is a question of fact for a jury.
    March 29th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Wayne county: Of July Term 1876, Nos. 49 and 50.
    These were two actions of ejectment for two farms, one brought by Daniel D. Main and others, against Rachael Ryder and James, Emily and Caroline Miner, and the other by the same plaintiffs against Horace and Henry Miner and Catharine Hooker.
    The plaintiffs claimed as the legal heirs of Daniel Miner, deceased, and the defendants as devisees under his will. In 1825, Daniel Miner Main married Phoebe Dennison in the state of New York, ■with whom he had several children, born in lawful wedlock, and who are the plaintiffs in this suit. About thirteen years thereafter, said Main left his wife and children in New York and came to Wayne county, under the name of Daniel Miner, in company with a woman named Catharine Hooker, with whom he lived, cohabited and had children. Three of these children are defendants in these suits, James A. Miner being a defendant in one and Horace and Henry Miner in the other. Four years after his coming to Wayne county, Daniel Miner commenced to live and cohabit with Eachael Eyder, and continued to live with her until the day of his death, twenty-six years thereafter. By her he had several children, two of whom, Emily and Caroline Miner, are joined as defendants in the suit against James A. Miner, in which also Eachael Eyder is a defendant. Catharine Hooker was joined as a defendant in the suit against Horace and Henry, because of her being in possession of one of the farms. Daniel Miner was never married to either Catharine Hooker or Eachael Eyder. At the time of his death, he lived on a farm with Eachael Eyder and her two daughters. 'Catharine Hooker, with her two sons, Horace and Henry,• resided on another farm. These two farms are the subjects of controversy in these suits. It was admitted that these properties were owned by Daniel Miner at the time of his death.
    At the trial, before Dreher, P. J. (of the 43d judicial district), the plaintiffs proved the marriage, in 1825, of Daniel Miner Main with Phoebe Dennison; that they had lived together some thirteen years in New York state, and had seven children; that said Main had abandoned his wife and children and came to Wayne county with Catharine Hooker, with whom he lived under the name of Daniel Miner, and that his first wife, Phoebe, died in 1869.
    The plaintiffs, who were his children by this first marriage, claimed the farms as his heirs at law. The defendants claimed under a will of Daniel Miner, who died on 4th of January 1873. The will was dated the 26th of December 1872, and was proved the 15th day of January 1873.
    This will contained the following provisions affecting the parties herein concerned:—
    “ I give and bequeath to my wife, Eachael Eyder, the use of my farm, on which I now live, as long as she shall live.
    “2. I will that my two children, Emily Ellen and Caroline Louisa, have a living on my said farm with Eachael Eyder, till they arrive at the full age of twenty-one years.
    “ 3. I will my son, James A. Miner, shall work the farm on which I now live, and keep my wife and two children above named.
    “4. I will to Horace and Henry the farm on which they now live, to share alike in the same.
    * * * “James A. Miner to move on the farm where I now live and take care of the stock and pay the heirs as above stated, and keep my wife, Rachael Ryder, and the children as aforesaid. And after the death of the said Rachael, and upon the two girls becoming twenty-one years of age, the farm to be the property of James A. Miner.
    “ I further will that my daughter, Emily Ellen Miner, shall have her support out of my estate as aforesaid, as willed to James A. Miner, so long as she shall live. * * *”
    And was signed and attested as follows:—
    “ In witness whereof, I, Daniel Miner, .the testator, have to this, my will, written on one sheet of legal cap paper, set my hand and seal this the twenty-sixth day of December, in the year of our Lord, one thousand eight hundred and seventy-two.
    Signed, sealed, published and declared by the above named Daniel Miner, as and for his last will and testament, in the presence of us who have hereunto subscribed our names at his request as witnesses, that, in the presence of the said testator and of each other.
    “ Orson Case,
    “J. W. Stanton. Ms
    Daniel + Miner (seal). mark
    Witness his mark — M. M. Thorpe.”
    It was admitted that the defendants were the devisees under the will of Daniel Miller.
    In rebuttal, the plaintiffs called Stanton, one of the subscribing witnesses, who- said: * * * “ There was something said about Mr. Miner signing; Mr. Thorpe asked him if he could sign it; he said he had wrote his name, but he did not know ■whether he could then or not; Mr. Case then said if he made his mark it would do just as well; Mr. Thorpe, I think, said yes; then Mr. Miner took hold of the pen and Mr. Thorpe made the mark; Miner took hold of the top of the pen.” * * *
    Case testified: “ Am one of subscribing witnesses to Daniel Miner’s will; * * * think something was said about Mr. Miner’s signing the will; Mr. Miner said he had wrote his name and didn’t know but he could again; I spoke and said it looked hard for a man that was as sore as he was and as sick as he was, to get up ; I suggested that Mr. Thorpe write his name and let Mr. Miner touch the tip of the pen, and make his mark; Mr. Thorpe said it would do just as well; Mr. Miner at this time was making an effort to turn over and was almost on his left side, as if he was going to write, and I think he would have done it; I think he could and would have written his name; Miner said Mose should write his name; I don’t know exactly what Miner did say; it is my impression and am quite positive he told Mose to write his name. •The substance was for Mose to write it; I can’t remember tbe words; after Tborpe bad written tbe name, be held tbe paper up on a book or something, pretty near edge of bed; Miner partially turned up and took hold of pen and made bis mark; Mr. Thorpe I suppose made tbe mark, Mr. Miner bad bold of the top of tbe pen. * * *
    “At tbe time Thorpe said it would do just as well, when I suggested Miner could touch tbe pen and make the mark, I don’t remember just tbe reply Miner made, but be consented to make bis mark — that Tborpe should write bis name and be -would touch tbe pen.”
    James A. Miner testified: “ Father requested Thorpe to write bis name and be would make bis mark; be said be did not feel able to get up and write bis name and suggested Tborpe should make his mark; Thorpe wrote bis name; father raised bis bead up, resting on bis elbow, and be took bold of tbe pen; I can’t say whether be made tbe mark or Tborpe.”
    Tborpe testified; * * * “Miner could write bis name; * * * I asked him to sign bis name; he was lying in bed; I moved around from tbe back side of tbe table, took a pen and this sheet and banded it to him to sign; be said, ‘You sign it;’ Case or Stanton said, ‘yes, be can make bis mark just as well;’ I signed
    his
    bis name to this instrument; I signed Daniel Miner; there is a
    mark
    space between Daniel and Miner-; it was in tbe ordinary form for a person to make bis mark; whether be held tbe pen and made tbe mark or I held tbe pen and he touched it to make tbe mark, I cannot now say; when I wrote this name as I did, it Avas not intended as the execution of tbe Avill, but I Avrote the name in that manner for the purpose or with tbe intention of having Miner make his mark; * * * Miner was quite sick ; didn’t have much to say until spoken to ; tbe provision for Emüy Avas suggested to him ; when I read tbe will to him I think be made no reply unless to say it was right, and I cannot say as to that either; * * * when I told him I had come to draw bis will he began to cry; don’t know whether be expected me or not; tbe names of various parties in the will were suggested to him; * * * Miner could transact business, but not as clearly as if not sick ; naturally be was shrewd and sharp, but not educated.”
    Eacbael Eyder testified that she bad lived with Miner for twenty-six years; Dan was crying most of tbe time (during preparation of will); be would turn bis face toward the wall; sometimes be would seem not to notice what Avas going on, and sometimes would look around; Tborpe would ask, “ Shall I put it doAvn so and so ?” and testator would say, “ Yes before his death he said there ivas somebody in his room to kill him.
    Robert Miner, a son of Rachael, testified that his father, during his sickness,, talked incoherently about the cattle, which he imagined were bellowing to be fed, and about the •will; that he used such expressions as “ Oh, Rob, that will; Jim brought Mose down and made a will, and I don’t know anything about it“ They haven’t got it right, I know.” Witness did not think his father able to do any kind of business on the day he made the will.
    The wife of Robert Miner testified that she did not think the' testator “had his right mind when he made his will.”
    Dr. Niles testified: “ Miner was quite sick; his mental condition was all right; when I left him on morning of 26th, was capable of transacting business; no appearance of impairment of his mental faculties; when I spoke of his having made a will, Miner said, “ You know the law wouldn’t fix it right in my case; I think I have fixed it right.”
    Rachael Ryder and her two daughters and James A. Miner were present when the will was drawn.
    The plaintiffs asked the court to charge: — ■
    That the Act of 27th January 1848, providing that a will may be executed by the mark of the testator, was intended to apply to cases where the testator is by reason of want of education unable to write his name, and does not excuse the absence of the signature of a testator who has learned to write.
    The court refused and in their general charge said:—
    “ If Thorpe wrote Daniel Miner’s name to the will, in Miner’s presence and by his express direction, and Miner made the attempt to make his mark, but failed to complete the mark, or to make it in the manner required by the statute, still the will is sufficiently executed, if these facts are proved by twro witnesses who were present at the time, although Miner when he directed his name to be signed intended to make his mark also, and Thorpe, when he wrote the name, intended that Miner should make his mark.”
    The plaintiffs also submitted the following points :—
    1. If the jury believe from the evidence that at the time of the execution of the 'will of Daniel Miner (Main) the testator had not a full and intelligent knowledge and understanding of the act in which he was engaged, of the property he possessed, an intelligent perception of the disposition he desired to make of such property, and the persons he desired should be his beneficiaries, then the testator did not possess a disposing mind and memory, and the will is invalid and the verdict must be for the plaintiff.
    The court answered:—
    “ Affirmed, with this explanation: That if a testator understands in detail all he is about, it is quite sufficient to sustain his will. It is not necessary at the time that he should have a recollection of all his estate, his family relations in life, their condition in general, and the probable effect the proposed disposition will have, and to collect all this in one view.”
    2. If the jury believe from the evidence that Daniel Miner (Main) had for a long period of time been living in unlawful intercourse with Rachael Ryder and Catharine Hooker, that the will was made in the presence of said Rachael and of the children of such unlawful intercourse, and that such will is made for the benefit of the parties to or issue of such unlawful intercourse, the law présumes the exercise of an influence upon the mind of the testator, which is unlawful and therefore undue. And if the testator was at the time suffering from weakness of body or mind by reason of his last sickness, the presumption of law is against the validity of the will.
    Which the court negatived.
    In their general charge the court said:—
    “ Undue influence to destroy a will must be such that the mind and will of some one else are substituted for the will of the testator, so that the testator in his will does not express his own free will and wishes.”
    In both cases the verdict was for the defendants, and the plaintiffs took this writ, assigning for error the answers of the court to the foregoing points and the portion of the charge noted.

      H. M. Seely, for plaintiffs in error.
    Under the Act of 8th April 1833, Pamph. L. 249, it was held that a will could not be executed by a mark, nor could the name be signed by any other than the testator, except in the extremity of last sickness. An illiterate man, therefore, could only execute his will when upon his death-bed: Asay v. Hoover, 5 Barr 33. It was to relieve this difficulty that the Act of 1848 was passed (Long v. Zook, 1 Harris 404), and it should be limited in its construction to the case it was intended to relieve.
    The court substantially instructed the jury that a name written at the bottom of a will at the request of the testator, was a good execution, although such name was intended at the time not as the act of execution, but simply as a preparation for the execution by the act of the testator making his mark.
    The evidence shows that Thorpe not Daniel Miner made the mark.
    From the unlawful relations of these parties and the other circumstances undue influence Avas to be presumed: Dean v. Negley, 5 Wright 317 ; Rudy v. Ulrich, 19 P. F. Smith 181.
    The ruling of the court as to the undue influence necessary to destroy a will is opposed to the doctrine in Tawney v. Long, 26 P. F. Smith 115.

      G. G. Waller and E. O. Hamlin, for defendants in error.
    The Act of 1848 is a remedial statute and the construction given it by plaintiff in error is too narrow.

      The will was executed by the mark of testator. He had hold of the pen and the assistance afforded him was allowable: Vandruff et al. v. Rinehart, 5 Casey 232; Cozzens’s Will, 11 P. F. Smith 196.
    Dean.a. Negley and Eudy v. Ulrich do not sustain the contention of the plaintiff in error.
    That is undue influence which amounts to constraint, which substitutes the will of another for that of the testator: Eckert v. Flowry, 7 Wright 51; McMahon v. Ryan, 8 Harris 329; Thompson v. Kyner, 15 P. F. Smith 369; Tawney v. Long, 26 Id. 106.
    May 7th 1877.
   Mr. Justice Mercur.

delivered the opinion of the court,

These two cases were argued together. They involve the same question. The contention relates to the will of Daniel Miner.' All the assignments of error present substantially these questions, involving its validity:—

1. The manner of its execution.

2. The mental capacity of the testator.

3. The influences under which it was executed.

We will first consider the manner of its execution. Under the Act of 1833, it was held that a will signed by the testator putting his mark to it, was not properly executed. To cure this ruling, which was questioned in Vernon v. Kirk, 6 Casey 218, the Act of 27th January 1848, Pamph. L. 16, was passed. It declares that every last will and testament “ to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects, provided the other requisites under existing laws are complied with.”

The will of Daniel Miner bears date the 26th December 1872. It appears to have been executed by the testator making his mark or cross at the end thereof. It has two subscribing witnesses, and is wholly regular on its face.

It is contended that the Act of 1848 applies only to cases where the testator is unable to write his name by reason of want of. education, and does not excuse the absence of the signature of one who is able to write. We discover nothing in the act 'sustaining that view. It makes no mention of insufficient education or of physical inability. It declares that form of execution as sufficient in all cases. The manifest object of the act is to permit a will to be signed as any other written instrument may be signed. Hence in Vandruff et al. v. Rinehart, 5 Casey 232, it was held that if one is unable from palsy or other cause, to make his signature or mark to his will, another person may steady his hand and aid him in so doing. If so done by the assistance of another it is the testator’s own act. So in Cozzens’s Will, 11 P. F. Smith 196, the testator was paralyzed, and said he was unable to write, but would put his mark to the will. He was raised in bed; a pen was put into his hand, which was held by another while he made his mark. This was held to be a valid execution of the will.

In the case we are now considering, it appears by the evidence of Thorpe, who drew the will, that he handed it to the testator, who was lying in bed, to sign. The latter said, “ You sign it.” Case or Stanton said, “ Yes, he can make his mark just as well.” Case and Stanton each testified substantially corroborating Thorpe, and added that Miner made the further remark that he had written his name, but did not know as he could do it then, or did not know but he' could do it again. Thereupon Thorpe wrote Miner’s name, not in a manner indicating that it was to stand as Miner’s fully executed signature, but preparatory only to his making his mark. Thorpe

his

wrote it “ Daniel Miner.”

mark

In that portion of the charge covered by the eighth assignment the court said, “we therefore charge you that if Thorpe wrote Daniel Miner’s name to1 the will in Miner’s presence and by his express directions, and Miner made the attempt to make his mark, but failed to complete the mark, or to make it in the manner required by the statute, still the will is sufficiently executed if these facts are proved by two witnesses, who Avere present at the time, although Miner when he directed his name to be signed intended to make his mark also, and Thorpe, when he wrote the name, intended that Miner should make his mark.”

This, we think, Avas clearly error. It assumes that although the testator directed his name to be written Avith the view of adding his mark, and thus making his signature, yet the will is completely executed before the mark is made. This cannot be so. It gives to an unexecuted intention the same effect as if fully executed. It gives to the statute a construction not sanctioned by its letter or its spirit. It is undoubtedly true the statute does provide, if the testator’s name is subscribed by his direction and authority, it is a valid execution of the will. That, hoAvever, is when the testator has directed his name to be written as his complete signature; If' so directed and intended, it becomes sufficient in itself. In such case the testator Avould not have intended to make any signature with his own hand, and none would be required. The learned judge holds the will may be sufficiently executed, although the testator failed to make his mark “in the manner required by the statute,” and when neither the testator nor the Scrivener had done any act, which either intended as a full execution of the will, and when the will would show on its face that it was not fully executed.

This error, however, was harmless in its consequences. It is shown by the testimony of four witnesses, who are uncontradicted, that the testator did make his mark. They all testify that his hand was on the pen when his mark was made, and he thus assisted in making it. As then the plaintiff in error sustained no injury by this instruction we will not reverse therefor: Phelin v. Kenderdine, 8 Harris 354.

2. The evidence in regard to mental incapacity was very slight. It was fairly submitted to the jury, and substantially in the very language often used by this court. On this branch of the case, the learned judge is fully sustained by Thompson v. Kyner, 15 P. F. Smith 368, and the numerous cases therein cited.

3. The fact that the testator lived with a woman to whom he was not legally married, and that she and their illegitimate offspring were the devisees of much of his property, are urged as creating a presumption in law that the will was executed under improper influences. The case of Dean et al. v. Negley et al. is cited to support this view. The opinion of the judge in that case expressly declares that the court does not decide such relations create a presumption of law of undue influence; but leaves the effect thereof as a question of fact for the jury. To the same effect is the case of Rudy v. Ulrich et al., 19 P. F. Smith 177. No clearly defined weight can be given to such testimony. Much must depend on the particular circumstances of each case. It is an element undoubtedly to be considered.

It appears that Miner had been entirely separated from his lawful wife and children for nearly thirty-five years. So far as it appears .none of them had met him in all that time. She had not sought any reconciliation of her marital relations, nor they of their filial relations. They all resided in another state. She died in April 1869. For more than twenty-six years the testator and the woman named in his will as his wife, had lived and cohabited together as husband and wife. During all that time they so recognised each other. She had borne him several children. To them he also devised a portion of his estate. A separation for more than thirty years from his legitimate children naturally weakened his parental affection towards them. It needed no special effort on the part of his other family, with which he had lived more than a quarter of a century, to make them the objects of his bounty. The court fairly submitted the fact of his illicit associations to the jury to consider in determining the question of undue influence. On the whole record we diseovér no sufficient cause for reversal, therefore,

Judgment affirmed in each case.


text:
    The Central Railroad Co. of New Jersey versus Feller et al.

    1. F. approached, a railroad crossing, with which he was perfectly familiar, with a manageable team. He drove by an open space, through which he had an extended view of the railroad, and stopped directly in front of a watchh01ise 0f the railroad, which intercepted his view in the same direction. In this position he stood still for an instant, turning his head around as if looking for the train, and then whipped up his team to cross the track, and colliding with a passing train was killed. He was partially deaf, but did not leave the wagon to look past the watch-house. Held, that he was guilty of contributory negligence, and the court should have instructed the jury that no damages could be recovered for his death.
    2. erection of the watch-house in this position was not negligence per se, and the question whether it was negligence to be so located should go to the jury to determine upon the circumstances.
    March 29th 1877.
    Before Agnew, C. J., Mercur, (Jordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Carbon county: Of January Term 1877, No. 256.
    Case by Mary Feller and others, the widow and heirs of Henry Feller, against the Central Railroad Company of New Jersey, to recover damages for the death of said Henry Feller, which it ivas alleged was caused by the negligence of the defendant company.
    The facts are fully stated in the opinion of this court.
    At the trial, before Dreher, P. J., the following was the third point submitted by plaintiff:—
    If the jury believe that the watch-house erected by the company shut off the view of approaching trains then the company is liable for the collision in the absence of negligence of the deceased.
    The answer of the court was: “ This point we affirm, but charge you further, as in our answer to the second point, that if the deceased could not see the approaching train from where he stopped, because the watch-house obstructed his view and there was a point on the hill approaching the railroad from which he could have seen the approaching train, he was guilty of negligence.”
    The fourth point of the defendant was :—
    Feller was bound, as'every man crossing a railroad, in ordinary prudence is bound, to look in all directions in which trains may approach and to pause until he found he could cross with safety; and as the evidence here shows he did not do so, there can be no recovery, and the court is requested to give binding instructions to that effect to the jury.
    “ Negatived. It is the duty of a railroad company, at the places where their road crosses a public carriage road or highway, to so construct and maintain the crossing that travellers exercising ordinary care and prudence may safely pass ; and their failure to construct and maintain such a crossing would be negligence. It is a question for the jury whether the erection of the watch-house by the company obstructed the view, and if so whether it was negligence in the company to erect it at that point.
    “ A railroad in running its locomotive and cars is required to give notice and warning by ringing of a bell, and in cases of perceived danger to a traveller by an alarm whistle, on approaching the crossing, at grade, of a public highway. It is not bound to stop its cars, but must give the notice.
    “It is the duty of a traveller on a public highway, when approaching a railroad crossing, at grade, to stop before attempting to cross, and look and listen for an approaching train, and if he fails to do so, such failure is negligence, and in case of injury to him or his property, he cannot recover any damages. The reason for these rules are, that persons, passengers travelling in the cars of the company, as well as travellers on the highway, may travel Avith a sense of comparative security, and that the company’s property as also that of a traveller on the highway may be protected from the carelessness of each other. The more dangerous the crossing the greater should be the care and caution of both the company and the traveller on the highway. Increased danger requires increased vigilance.
    “ Now, applying these rules of law to the evidence in this case, was Henry Feller killed by the negligence of the defendant, or did the accident which resulted in his death occur either in Avhole or in part from his own negligence ? If the company was negligent and there Avas no negligence on his part Avhich contributed to the accident, and the accident resulted from such negligence of the company, then the plaintiffs are entitled to recover. If the company was not negligent then the plaintiffs cannot recover. If Henry Feller Avas negligent and his negligence in any Avay contributed to the accident which caused his death, then the plaintiffs cannot recover, although you should think the company was negligent.”
    The verdict was for the plaintiffs for $1840, and after judgment the defendant took this writ, among other assignments alleging that the court erred in affirming plaintiffs’ and refusing defendant’s points as above.

      Albright Freyman, for plaintiff in error.
    The death of Feller was caused by his own negligence, and this court should have taken the case from the jury.
    The duty of stopping is more manifest when an approaching train cannot be seen or heard than when it can. . If the traveller cannot see the track from any cause he should get out and if necessary lead his horse: Pennsylvania Railroad Co. v. Beale, 23 P. F. Smith 504. •
    Persons about to cross a railroad are bound to recognise the danger and to make use of the sense of sight as well as hearing, and if one sense cannot be used the obligation is the greater to use the other, and to ascertain before attempting to cross if a train is in dangerous proximity, and if they do not they cross at their own risk and such conduct is negligence as a matter of law: Lake Shore Railroad Co. v. Miller, 25 Mich. 274; Chicago & Rock Island Railroad Co. v. McKean, 40 Ill. 218; Bellefontaine Railroad Co. v. Hunter, 38 Ind. 335.
    If the plaintiff’s own case discloses contributory negligence he cannot recover: Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30; Cleveland and Pittsburgh Railroad Co. v. Rowan, Id. 393. If believing the plaintiff’s witnesses there was not enough upon which to found a reasonable conclusion, it is not a question of the weight of-evidence, but there is no evidence at all: Pennsylvania Railroad Co. v. Shay, 1 Norris 198.

      Allen Craig and W. M. Rapsher, for defendants in error.
    It is not incumbent on the part of a plaintiff in order to recover damages for his death to show affirmatively that before attempting to cross the track, he did stop and look and listen. The common-law presumption is that every one does his duty until the contrary is proved, and in the absence of all evidence on the subject, the presumption is that the decedent observed the precautions which the law prescribes before he attempted to cross: Pennsylvania Railroad Co. v. Weber, 26 P. F. Smith 168; Weiss v. Pennsylvania Railroad Co., 2 Weekly Notes 214.
    If the plaintiff’s evidence does not disclose contributory negligence, the burden is on the defendant to disprove care: Pennsylvania Railroad Co. v. Weber, supra; Weiss v. Pennsylvania Railroad Co., supra; Pennsylvania Canal Co. v. Bentley, supra; Cleveland & Pittsburgh Railroad Co. v. Rowan, supra; Lehigh Valley Railroad Co. v. Hall, 11 P. F. Smith 368.
    What is proper care cannot be determined by any fixed rule of law, but must depend upon the facts of the particular case: Phila., Wil. & Balt. Railroad Co. v. Stinger, 28 P. F. Smith 226; Pennsylvania Railroad Co. v. Ackerman, 24 Id. 265; Pennsylvania Railroad Co. v. Lewis, 29 Id. 45; Whart. on Neg., sect. 420, and n. 1; Hoyt v. City of Hudson, 3 Law & Eq. Rep. 275; Phila. & Trenton Railroad Co. v. Hagan et al., 11 Wright 244.
    May 7th 1877.
   Chief Justice Agnew

delivered the opinion of the court,

This case was well tried in the court below, except in a single aspect which the court failed to notice. The consequence has been that the jury, looking at one side only, followed the common bent of jurors when a railroad company is a party. Had the consequence of Henry Feller’s negligence been the destruction of the train and a heavy loss of human life, the case would have been seen .very differently. Being himself the only sufferer, the interests of the Railroad Company and the public have been lost sight of. A motion for a nonsuit at the close of the plaintiff’s evidence would have disclosed the true character of the case. Taking that evidence alone we have this state of facts: Henry Feller had driven to Weiss-port with a load of ties, crossing the railroad, and was returning in the afternoon in broad daylight. He was perfectly familiar with the crossing, having driven over it frequently ^for several years, often two and three times a week. His team of mules was gentle and manageable. On the return the ascent is steep, passing a-row of houses in front of iron works, which extended nearer to the railroad. A watch-house eight feet in width stood about five feet from the railroad and from six to eight feet from the road he was travelling. Between the iron works and the watch-house is a considerable space through which he could see up the railroad beyond the depot, about six hundred and fifty feet. Feller drove his team and empty wagon past this opening without stopping, and came to a stand right before the watch-house, the heads of the mules passing the watch-house and being within three or four feet of the outer rail. He stood in his wagon, and according to the testimony of all the witnesses of the plaintiff who saw the occurrence the watch-house shut out his sight above, in the direction in which the train was coming. In this position he stopped momentarily, turning his head as if looking to each side, then whipped his mules with the lines held in his hands; the mules starting, had just gotten upon the track when the engine struck them, killing one and maiming the other, breaking up the wagon and killing Feller. All the witnesses agree that where he stood in the wagon he could not see up the track ; that he did not get down and loojc past the watch-house, but drove on after a short pause, though unable to see the track on his left side. These are the uncontradicted facts, as shown in the plaintiff’s own testimony. In such a case the question becomes one of law : Rung v. Shoneberger, 2 Watts 27. It was a plain case of foolish negligence, in passing a point where he could see, and stopping at a point where he could not see in one direction, and yet driving on without any attempt at examination, except to turn his head in each direction. He was somewhat deaf, but this was unknown to those on the train, even if they could have supposed he would drive on past the watch-house. But he himself being aware of his own defect, had a greater reason for caution in advancing. On the plaintiff’s own showing it was a clear case of concurring negligence, which the testimony for the defence makes even more apparent. The engineer saw the wagon passing through the opening when moving to the watch-house, and gave five.or six sharp alarm whistles, heard by many, including the plaintiff’s witnesses. A witness testified that a person saw the deceased passing up toward the railroad, and told him to wait, that a train was coming. The case was therefore not helped out by the defendant’s testimony. It was a case of ■ uncontradicted concurring negligence, upon which the court should have instructed the jury that the plaintiffs could not recover. The attention of the court was called to the state of the evidence by the defendant’s fourth point; and instead of negativing it, the court should have affirmed it.

The affirmation of the plaintiffs’ third point wras not exactly accurate, though it is perhaps redeemed from error by the qualification and the charge. This point-is, “If the jury believe that the watch-house erected by the company shut off the view of approaching trains, then the company is liable for the collision, in the absence of negligence of deceased.” In effect this was to say that it was negligence per se, and binding on the jury. That the placing of a watch-house in the way and shutting out a view of the railroad, so as to entrap travellers at a crossing, may be such a wrongful act as will render the company liable, may he well conceded. But it is one which is not negligence per se. A railroad company is entitled to a full and free enjoyment of its own property, and to place upon it all needed structures. For example, the block system of running upon railroads is found to be a valuable aid in the security it affords. This system requires signal stations along the route and close to the track; and circumstances may require a signal station or a depot or station to be placed near to a crossing. It would be too much to say that any one found near a public road is a nuisance per se. So a watch-house for a flagman at a crossing may be necessary. The question is one of circumstances and not of legal conclusion, and necessarily must go to a jury to determine upon the circumstances. But the slight inaccuracy in affirming the point generally is counteracted by the qualification, and also by the general charge, which submits the question as to the watch-house clearly and fully to the jury.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Forks Township versus King.
    1. The owner of a horse, lent without hire, is responsible for'the negligence of the borrower, and if the negligence of the latter contributed to an accident whereby the horse was killed, the owner cannot recover.
    2. K. brought an action against a township to recover damages for the death of his horse, which he had loaned to H. to use in the latter’s team, and which he alleged was killed by the unsafe condition of defendant’s road. To show that the negligence of Ii. contributed to the accident -the defendant offered to prove that II. was informed of the dangerous condition of the road, and that he was acquainted with another and safer road leading to the same point, which offer the court rejected. Held, that this evidence should have been received.

      March 31st 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Sullivan county: Of July Term 1875, No. 49.
    Case brought by King against Forks township to recifv^r damages for the value of his mare, alleged to have been killed by the negligence of defendant’s officers in not keeping the highway in safe condition.
    Plea, “Not guilty.”
    The plaintiff loaned the mare to Ellis Hoagland to use in his team. The other material facts, together with the offers of evidence made at the trial before Elwell, P. J., are stated in the opinion of this court.
    The fifth and seventh points of the defendant and the answers of the court were as follow's :—
    5. If the driver of the team was informed of the dangerous condition of the road before he reached the point where the accident occurred, and knew of another road leading to the same place, Avhich was safer, ordinary prudence required him to take the safest road; and if he failed to do so, he negligently contributed to the injury, and the plaintiff cannot recover.
    Answer. “ I decline to affirm this point. The only information which the evidence shows the teamster had, consists of his knowledge of the road generally on that day in regard to ice, and the statements of Mr. Bird and Mr. Landon. Bird does not appear to have known more of the condition of the road than Hoagland, who had travelled twenty miles that day, and Landon made but a general statement that it w'as icy down the hill. I cannot charge that it was negligence to attempt to go over the road because of such information, but submit, as a question to the jury, whether under all the evidence, looking at matters from the standpoint of the teamster before the accident, it was negligence for him to attempt to drive the road. There is no evidence that he knew of a safer road.”
    7. If the jury believe that the plaintiff, or the person in charge of his team, ivas informed previous to the accident, by any person, that the hill where the accident happened was icy, and that he was in danger of going off, and did not take more than ordinary care at that point to prevent going off, the plaintiff is not entitled to recover.
    Answer.1 “ As the road was left open by the public authorities, thereby in effect declaring that it w’as safe to travel, I decline to charge, as a matter of law, that the information testified as having been given to Hoagland required of him more than ordinary care.”
    The verdict was for the plaintiff’ for $59.30. After judgment the defendant took this writ, and assigned for error the rejection of the evidence offered and the answers to the foregoing points,

      D. M. Dunham, for plaintiff in error.
    When the plaintiff knew of a perfectly safe road running side by side with the dangerous one, it was negligence in him not to take the former, and the evidence that Iioagland knew of such a safe road should have gone to the jury to determine the question of contributory negligence: Whart. on Neg., sect. 400, and cases cited.

      II. W. Patrick, for defendant in error.
    A township is bound to keep its highways in repair at all times, and cannot suffer them to fall into decay, and compel travellers to choose between making long detours or the risks of accident. An open highway is an invitation to the public to travel upon it, and the fact that the traveller knows it is dangerous does not make it his duty to choose another route: Humphreys v. Armstrong County, 6 P. F. Smith 204; Pittsburgh v. Grier, 10 Harris 54.
    The owner of a horse lent without hire is not responsible for the negligence of the borrower, and as there was no relation of master and servant between the plaintiff and Iioagland, the former cannot be affected by the negligence of the latter, if it did contribute to the accident: Bard v. Yohn, 2 Casey 482.
    May 8th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

This action was brought by the plaintiff below to recover damages for the loss of a mare belonging to him, in the possession of Ellis Hoagland, caused, as was alleged, by the unsafe condition of the road over which she was being driven. Hoagland, with this mare and another horse of his own, hitched to a loaded wagon, was returning from New Albany to Eorksville on the 24th of February 1872. In descending a mountain four or five miles from Forksville, along a dug-way, the wagon slid off the road, dragging the horses with it, and the mare of the plaintiff was killed either by the fall or by choking to death before she was extricated. The road was ten or twelve feet wide, and the upper side was from six to ten inches higher than the lower, with a uniform descending inclination from the bank to the edge on the lower side. At this point there were no guard-logs along the edge for a distance of thirty or forty feet. There was a spring on the upper side with a sluice-way across, partially stopped up, and the water flowed over the highway and froze on its surface. Rain had fallen the day before the accident, the weather had become suddenly cold and ice had formed to an extent to make" travelling dangerous. For ten days previously, ho ay ever, there was evidence that ice had been accumulating, and it was alleged that the duty of the supervisors to keep the highway in a safe condition had been wholly neglected.

On the trial the defendant’s counsel offered' in evidence “ a draft of the roads in the vicinity of where the accident happened, to be followed by evidence that Hoagland knew of other roads than the main road taken by him, and that he had heard of the condition of the road which he travelled.” The court admitted the evidence to show Hoagland’s knowledge of the condition of the road he took, and rejected that relating to the existence of other roads. The defendant subsequently proposed “ to prove that at the time of the accident Hoagland knew of the road leading from Michael Corcoran’s to Millview, by way of Molyneux, and that he knew it was a safe road.” This evidence also was rejected. When this second offer wras made, testimony had been given to show that Hoagland had been informed of the condition of the main road. William Bird had said he “told him he would be apt to go off the road before he got down the hill,” and “that it was so icy it would be dangerous to go down the hill.” And Truman Landon had sworn that he had told Hoagland that the hill was very icy. This evidence might not have proved to be very significant if it had been submitted to the jury in connection with that which the court rejected. It may be, too, that the taking of another road, even if perfectly safe, would have involved so much of delay, distance or other inconvenience as to justify Hoagland in keeping on the main highway. But these were questions for the jury to decide. A person who knows a defect on a highway and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect: Whart. on Neg., sect. 440. Thus, if it appear that there is danger' in treading on a piece of ice and the plaintiff voluntarily and unnecessarily undertakes to walk over it, when he could plainly see it and easily avoid it, and falls and breaks a limb, he is precluded from recovery : Durkin v. The City of Troy, 61 Barb. 437. In going from Forksville to New Albany in the morning, Hoagland had taken what the witnesses called the Campbellville road. Having found that icy, he took in returning the road on which the accident happened. Of the condition of the latter at the time, therefore, he had no personal knowledge. But if he had warning that it was dangerous, and knew that by reasonable precaution the danger could be avoided, prudence required that such precaution should be taken. The evidence should have been received, and the effect of it, in its connection with the testimony of Bird and Landon, it would have been for the jury to consider and decide.

The general charge was unobjectionable, and there was no error in any of the answers that were given to the points, in view of the evidence admitted, to require a reversal of the judgment. Without other facts, the court would not have been justified in instructing the jury, in answer to the defendant’s fifth point, that, upon the statements of Bird and Landon, the neglect of Hoagland “to take the safest road” was contributory negligence, when evidence of the existence of any other road than the main highway had been excluded, and it had been shown that the supervisors had left that highway open. Nor would those statements have warranted the instruction asked in the seventh point, that the information he had received made it his duty “to take more than ordinary care.” He was bound to use all the precautions against danger which a cautious and prudent man would use in the circumstances by which he was surrounded. In the course of the answers to the points the jury were in effect so charged.

Judgment reversed and venire facias de novo awarded.