author: Per Curiam.

text:
    In re Towanda Bridge Co.
    1. The right of eminent domain extends to corporate franchises, and by virtue of that right the bridge of a corporation can be taken for public use and made a free bridge.
    2. In proceedings to take a bridge, the county, as well as the bridge company, have the right of appeal from the award of damages, to the Court of Common Pleas, and to a trial by jury. No time is fixed in the Act of May 3d 1878, for taking the appeal. It is to be under such regulations for bringing the matter to a trial in due course of law by a jury as the court may prescribe.
    October 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Certiorari to the Court of Quarter Sessions of Bradford county:

    In the court below these proceedings were commenced by a petition under the Act of May 1st 1876, Pamph. L. 86, Purd. Dig. 2074, and its supplement of May 3d 1878, Pamph. L. 41, which set forth that the Towanda Bridge Company have heretofore erected and maintained .a bridge over the Susquehanna river at Towanda, where said river crosses a highway; that said bridge was erected and maintained, by authority of law, by said bridge company; that said bridge is necessary for the accommodation of the travelling public, and that the payment of tolls thereon is burdensome, and praying that the same may be taken as a county bridge. The bridge company filed a remonstrance, which was overruled without prejudice, and on the same date six viewers were appointed, and five days notice of the time and place of their meeting was directed to be given to the president of said company and to the county commissioners. On the 5th of May 1879, the viewers filed a report which set forth the manner in which their duties had been performed; that they had examined the bridge; that all were present at the view, and were severally sworn that the bridge was necessary as a free bridge for public accommodation; that the payment of tolls thereon was an unjust burden on the travelling public, and that by reason of taking said bridge the company would sustain damages to the amount of $20,000.
    By permission of the court the bridge company filed the following exceptions to this report: 1. The Act of Assembly under which these proceedings are taken is unconstitutional. 2. The power of eminent domain sought to be exercised in these proceedings cannot be properly exercised, because the proposed taking is for the purpose of continuing the property in the same and not in a higher use. 3. The property proposed to be taken is not in the line of any public improvement or a part thereof. 4. That this proceeding is not by or on behalf of any perteon or corporation invested with the power of taking private property for public use. 5. That the bridge and its approaches are not situated where a public highway is crossed by a river or other stream. % The petition is not sworn to. 7. The county commissioners are not parties to this proceeding, and have no power to approve or disapprove the taking of the property. 8. Two of the viewers report that they do not find the bridge necessary for the accommodation of the public as a free bridge, and the payment of tolls an unjust burden on the travelling public and the people of the township where located. 9. The report of the viewers is not the unanimous report of those who acted.
    On July 28d 1879, the court, Elwell, P. J., of the Twenty-sixth Judicial District, holding a special court, filed the following opinion:
    “It is objected against these proceedings that the Act of Assembly under which they are had is unconstitutional. The purport of the first and second exceptions taken together is, that the legislature cannot authorize the taking of a bridge erected by a corporation over a river, crossing a highway on which the public are required to travel, and for crossing which tolls may be charged and taken, and making thereof a county bridge for the crossing of which no tolls can be charged or taken, although such bridge is necessary for the accommodation of public travel, and the payment of tolls over the same is burdensome to the travelling public.
    “The Act of 1st May 1876, Purd. Dig. 2074, under which these proceedings were instituted, in express terms, provides a mode by which a' bridge erected by a company may, upon compensation being made, be taken from the company and made free for the passage of the public. By sect. 3, art. 16, of the constitution of 1874, it is declared, that ‘the exercise of the right of eminent domain shall never be abridged or so construed as to prevent the General Assembly from taking the property and franchises of incorporated companies, and subjecting them to public use the same as the property of individuals.’
    “The constitution of 1838 provided, that ‘no man’s property shall be taken or applied to public use without the consent of his representatives, and without just compensation being made.’ In Harvey v. Thomas, 10 Watts 66, it was said, per Gibson, C. J., that this clause is a disabling, not an enabling one, and that the right to take property for public use would have existed without it. This right of eminent domain is inherent in all governments, and requires no constitutional provision to give it force: Taylor v. Porter, 4 Hill 143. Its existence and force are, however, clearly implied and acknowledged, in the portions of the constitution above quoted. It is the rightful authority which exists in every sovereignty to control and regulate those rights of' a public nature, which pertain to the citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience or welfare may demand: 2 Kent Com. 338-40 ; Cooley’s Const. Lim. 662, and cases cited in note.
    Every species of property which the public needs may require, and which government cannot lawfully appropriate under any other right, is subject to be seized and appropriated under this right. Lands for public ways, buildings standing in the way of public improvements, or which for any other reason it becomes necessary to take or remove or destroy for public good; streams of water; corporate franchises, and generally legal and equitable rights of every description, are liable to be thus appropriated: Id. 654, and authorities there cited.
    “ Property in a franchise is no more sacred than private property in land, under a patent: Commonwealth v. Pennsylvania Canal Co., 16 P. F. Smith 41. Each species of property may be said to be held under a contract with the state, and yet it has never been doubted that land thus held may be taken for public use.
    “ In Bonaparte v. C. & A. Railroad Co., 1 Bald. C. C. 205, it was held that a statute franchise in a toll bridge or road must yield to this sovereign right, and may be taken and appropriated to public use whenever public exigencies may require it, 1 for,’ says the judge who delivered the opinion, ‘ a franchise is fixed and determined property, but it must be on condition of making compensation to the proprietors.’ If there he in the assumption reasonable accommodation as respects the public, this right of an appropriation may be applied to turnpikes, bridges, ferries and other like property: Chancellor Walworth, in Bloodgood v. M. & H. Railroad Co., 18 Wend. 14, 15; Boston Water Co. v. Boston & Worcester Railroad Co., 23 Pick. 60; Plan of Kensington, 2 Rawle 448.
    “ In the case of Long v. Fuller, 18 P. F. Smith 170, it was held that the Act of 9th April 1867, which authorizes the taking of an acre of land by school directors for the purpose of a district school house, is not unconstitutional. In that case an acre of land belonging to Mrs. Long in the borough of Troy was taken, appraised and set apart by the school directors. The use was held to be public.
    “ The degree of the public necessity is exclusively for the legislature. It is not a judicial question.' But the courts will take care that private property is taken under an assertion of eminent domain for no other than a public use. Per Strong, J., in Smedly v. Irwin, 1 P. F. Smith 451.
    “ It undoubtedly must rest as a general rule with the wisdom of the legislature to determine when public uses require the assumption of private property; but if they should take it for a purpose not of a public nature, as if the property of A. should be taken and given to B., or if they should vacate a grant of property or a franchise, under the pretext of some public service, such cases would be clearly unconstitutional: 2 Kent’s Com. 340.
    “ In the passage of the Acts of 1876 and 1878 under consideration the legislature declared, in effect, that under circumstances enumerated therein, it might he for the public benefit that a toll bridge owned by a corporation should become a public county bridge, free to all persons. But the question of necessity in each case as it may arise, was referred to the local courts, to be determined by the agency of viewers and the concurrence or non-concurrence of the grand jury. The mode adopted in this act is substantially that which has always prevailed in regard to taking property for roads, &c., and is sustained by decisions of the Supreme Court: Pocopson Road, 4 Harris 15. The result of the authorities appears to be, that the only conditions to the exercise of the right of the state to take private property is that the public good requires it, and that adequate compensation be made therefor. The fact that the public good does require it is to be ascertained by legislative authority, which authority may be delegated to a corporation, or even to an individual, where the purpose is of public utility.
    “ It is contended here that the taking of a toll bridge and making it free to all is putting it to no higher use, and therefore not within the power of the legislature. Of course the bridge will be passed over in the same manner after taken as before, but that has nothing to do with the question. The use, in the sense of the law will not be the same.

      “ A free bridge is open for trável by night and by day, but in the hands of a private corporation it may be sometimes closed, to the inconvenience of a traveller, and can never be rightfully crossed without complying with legal exactions in the shape of tolls. In one case the public have absolute rights and in the other conditional rights controlled by the corporation. In the one case the bridge is maintained principally for the purpose of private gain and in the other for the accommodation, convenience and welfare of the public, and for its relief from an unnecessary burden.
    “ There is no doubt as to the constitutionality of the Act of 1876, as amended by the Act of 1878. It is not in conflict with any clause of the federal or state constitution. The third exception to the report may be dismissed, with the single remark, that there is nothing in the law which requires that a bridge, to be taken for public use, shall be in the line of a public improvement or a part thereof. The fourth exception cannot be sustained. The law provides that proceedings under the statute may be begun and carried on upon the petition of twenty residents and tax-payers of the county. The fifth exception asserts that the bridge proposed to be taken and appropriated is not situated where a public highway is crossed by a river or other stream. No evidence in regard to this exception was taken, but the exceptants content themselves with a simple denial of the facts alleged in the petition. The petition alleges that the bridge in question is over the Susquehanna river, between the borough of Towanda and the township of Wysox, in the county of Bradford, where said river crosses a road or highway; that said road in Wysox township is known as the New East Towanda road, and that the said road in Towanda borough is known as Bridge street.
    “ It appears by the document in evidence, on the argument of these exceptions, that there is a road leading up and down the river, and that from it there is a causeway for a distance of thirty or forty rods to the end of the bridge. If this causeway is maintained by the bridge company, and is necessary to reach their bridge, it is part of the bridge itself, and would pass by a sale of its franchises. If it is kept in repair by the public, it is a public highway. Ever since the bridge was erected, more than forty years ago, there has been a way open to each end ■ of the bridge. The bridge itself is a highway, and forms the connecting lines between the highways on opposite sides of the'"river. It is surely not necessary, to bring a case within the Act of Assembly, that the petitioners should show that a highway had been laid out not only to but across the river. I apprehend that, except in the case of state roads, laid out by the commissioners appointed for that purpose, no case can be found where a public road has been laid out by course and distance across the Susquehanna river; and yet, within the meaning of the law, where there is a highway to the river on each side, the river may be said to cross a highway; and although there may be nó record of a laying out of the road, yet if it. has been used by the public as a highway for twenty-one years, it has become a highway by prescription. Many highways throughout the Commonwealth stand upon no other title. The Act of Assembly under consideration applies to highways, without regard to the manner of their becoming such. The fifth exception is overruled, as not founded in fact.
    “ The sixth and seventh exceptions are overruled. The law does not require that the petition, upon which the proceedings are founded, should be sworn to. Under the general road law of the state for the laying out of roads or erecting county bridges, a petition of citizens is required, as in the Act of 1876, but it has never been the practice to require them to be sworn to. An oath is never required to a petition in the Quarter Sessions, except by virtue of some statute. Notice appears to have been given by the viewers.as required by the Act of Assembly; there was no necessity to give special notice to the commissioners of the county.
    “ The eighth and ninth exceptions cannot be sustained. Where several persons are authorized to do an act of a public nature which requires deliberation, though all be convened, a majority may decide: Turnpike Road by Chadd’s Ford, 5 Binn. 481; Paradise Road, 5 Casey 20.
    “ The exceptions to the report of viewers are overruled. But we do not now confirm the report upon the merits. The act requires the approval of the grand jury, before final action can be taken by the court. Request having been made by the bridge company, that in their inquiry into the propriety of approving and confirming the report of the viewers, that witnesses may be examined for and against the same, agreeably to the provisions of the eleventh section of the act, the court will refer the case first to the grand jury to be considered and acted upon as required by law.
    “And now, July 22d 1879, the exceptions by the Towanda Bridge Company to the report of the viewers are overruled, and it is directed that the report be laid before the grand jury at the September sessions of the court, and that if requested, it'is directed that they hear and examine witnesses for and against the same.”
    The company moved the court to fix a time at which the court and grand jury should hear and examine witnesses for and against the confirmation of the report of the viewers, which motion was refused. On September 2d 1879, the grand jury reported in favor of confirming the report of the viewers. On September 15th 1879, the company applied to the court to fix a time when witnesses should be heard by the court upon their .inquiring into the propriety of confirming the report of the viewers. This motion was also refused, and the court concurred in the finding of the grand jury, and approved the report of the viewers, when this writ was taken by the company, which alleged that the court erred in this action.

      Edward Overton, Jr., and John F. Sanderson, for the bridge company.

      Davies & Carnochan, for county of Bradford.
    March 29th 1880,
   The judgment of the Supreme Court was entered

Per Curiam.

That the right of eminent domain extends to corporate franchises, and that by virtue of that right the bridge of a corporation can be taken for public use and made a free bridge,, we think are positions no longer open to controversy. The opinion of Judge Elwell, and the authorities cited by him, are conclusive upon that subject. The proposition to have the question as to the necessity of taking the bridge heard in open court before the judge and grand jury was certainly a novel one, and if it was in the sound discretion of the court to grant or. refuse it, their decision cannot be reviewed here. The question whether, under the provision of art. 16, sect. 8, of the constitution, the county can take actual possession of the bridge without paying or securring the damages awarded, does not arise on this record. There is no order of court to the county commissioners to take possession. The county, as well as the bridge company, had the right to appeal from the award of damages to the Court of Common Pleas and to a trial by jury. No time is fixed in the Act of 1878 for taking the appeal. It is. to be under such regulations for bringing the matter to a trial in due course of law by a jury as the court may prescribe. The record shows no appeal. The certiorari was issued and filed in the court below two days after the confirmation by the court of the finding of the grand jury.

Proceedings affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Werner’s Appeal. Hilline’s Estate.
    Two minors died intestate, unmarried and without issue, leaving their father as their heir-at-law. The latter was imbecile and possessed, of no estate. A sister of the deceased nursed them through their last illness and prepared the bodies for interment. For these services she presented a claim to the administrator, who refused payment on the ground that the charges were exorbitant, and paid the balance to the father as distributee, but 'filed no vouchers. Held, that the claim being for necessaries, and the parent unable to pay it, the estate of the minors was liable; that the payment by the administrator to the father was at his own risk; that under the evidence the claim, ?45 for each' minor, was not exorbitant.
    October 8th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeals from the Orphans’ Court of Allegheny county: Of October and November Term 1879, Nos. 113 and 114.
    These were two appeals by Frederick Werner, administrator of the estate of William and Catharine Hilline, deceased, from the decree of the court surcharging appellant with the sum of $45 in each case.
    Appellant filed his final account, which set forth that he has distributed the entire estate to Anton Hilline, the father and heir-at-law of the deceased, but filed no vouchers to said account. The estate was small, consisting of about $150. It appeared that the deceased were minors, unmarried and without issue. Their father, by reason of his habits of intemperance, was imbecile, impaired in health, and possessed of no means. The deceased had been sick, for several days prior to their death, with malignant typhoid fever, and required constant care and attention. Mary Hopkins, a sister of deceased, had boarded and nursed them through their last illness, and had • prepared their bodies for interment. She presented her claim for these services to the administrator, prior to the alleged distribution to the heir, payment of which was refused on the ground that it was excessive. She then excepted to the account of the administrator, and the court sustained her exception, surcharging the accountant with the sum of $45, in each case, and costs. Werner then took this appeal.

      Morton Hunter, for appellant.
    There was no contract with deceased to pay for services, and if there was it was. void, as they were minors and under the protection of their father, who was bound to furnish them maintenance: Reeves’s Domestic Relations 228; 1 Bl. Com. 446 ; Schouler’s Domestic Relations 322; Harlan’s Accounts, 5 Rawle 323. The amount received by the father was ample to pay the claim.
    The exceptant permitted appellant to pay the father the money, and is therefore estopped. The claim- is exhorbitant and unreasonable.

      Winfield S. Wilson, for appellee.
    The claim of appellee is based on a quantum meruit: Hertzog v. Hertzog, 5 Casey 465. The duty to pay arose out of the facts. The services were necessaries, and not upon a contract with either the deceased or the parent. The latter being unable to pay was discharged from his duty, and the claim is a proper one against the estate, and which the administrator should pay : Reeves’s Domestic Relations 287, 413, 465; Schouler’s Domestic Relations 322; Adams’s Equity, 5th ed., 287; Greenwell v. Greenwell, 5 Ves., Jr., 194, and cases cited in notes; Harlan’s Accounts, 5 Rawle 323; Dawes v. Howard et al., 4 Mass. 97; In re Petition of Charles Potts, 1 Ash. 340; Newport v. Cook, 2 Id. 332; Pennock’s Estate, 1 W. N. C. 196, 434; Hellerman’s Estate, 3 Id. 391.
    The Orphans’ Court will not dispense with the exhibition of proper vouchers for payments made: Verner’s Estate, 6 Watts 250; Romig’s Appeal, 3 Norris 235; Act of March 15th 1832, Pamph. L. 143, sect. 29, 1 Purd. Dig. 444, sect. 189.
    The administrator made the distribution at his own risk, and cannot complain of the surcharge: Moorhead’s Appeal, 8 Casey 297. The claim was reasonable and just.
    October 20th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

That the claim of Mrs. Hopkins against the estate of the minors, was for necessaries, has not been disputed. It seems plain upon the evidence that their father was unable to * pay it. If the appellant paid him the balance in his hands as distributee, it was at his own risk. As to the amount of the claim which is complained of as exhorbitant, upon the evidence we think the court below were entirely right in allowing it.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Chief Justice Sharswood

text:
    Wilson and Wife versus Renshaw & Co.
    1. In an action against husband and wife for the price of goods, alleged to have been sold to the wife as necessaries, for the use of the family, the husband, in an affidavit of defence, averred that said goods were sold to him, were charged to him on plaintiff’s books, the bills rendered to him, and that no claim that they were sold on the wife’s separate credit was made until suit brought. The court entered judgment for want of a sufficient affidavit of defence. Held, that this was error, and the case should have been submitted to a jury.
    2. Undecided, whether the husband’s discharge in bankruptcy discharged the wife.
    October 8th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trtjnkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 193.
    Assumpsit by Renshaw & Co., against Wesley Wilson and wife, for necessaries alleged to bave been sold to the wife for the use of herself and family.
    One of plaintiffs,-in their affidavit of claim, which was founded on a book account, alleged: “ That all the articles appearing in said account are necessaries, and the debt therefor was contracted for the support and maintenance of the family of said Wesley and Lydia M. Wilson, the articles having been ordered for family use; and deponent further says that, to the best of his knowledge and belief, every article appearing on said bill of -items was personally ordered and contracted for by the said Lydia M. Wilson, and he therefore claims that the said Lydia M. Wilson is justly liable, as well as her husband, to the said firm of John A. Renshaw & Co., for the payment of said debt.” *
    Wesley Wilson filed an affidavit of defence, wherein he averred “that all of said goods were sold to this deponent, and were charged to deponent on plaintiffs’ books, and that said plaintiffs rendered all their bills to this deponent, and never made any claim until this suit, that they were selling said goods on the credit of the said Lydia M. Wilson.”
    He further averred that he had been adjudicated a bankrupt and had been discharged from all his debts, including the one in suit, a copy of the certificate of which discharge was included in said affidavit of defence.
    The court made absolute a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence when defendants took this writ and assigned this action for error.

      C. C. Taylor and Thomas T. Wightman for plaintiffs in error.
    —The goods were not purchased by the wife on her separate credit, out on the credit of the husband alone. The plaintiff recognised this fact by charging the goods to the husband alone, and sending him the bills therefor.
    The husband pleaded his discharge in bankruptcy in due form. This was conclusive against the right of the plaintiffs to recover a judgment and have execution against him. It follows therefore they cannot bring themselves within the purview of the Act of 1848, and can have no judgment against the wife.

      J. H. Baldwin for defendants in error.
    The bankrupt law was never intended to protect any one except the bankrupt himself.
    October 20th 1879.
   Chief Justice Sharswood

delivered the opinion of the court,

It is very manifest that under the affidavit of defence filed in the court below the defendants had a right to a trial by jury. It was an action against husband'and wife, for necessaries alleged in the affidavit of claim, to have been contracted for by the wife. The defence sworn to by the husband is, that all the goods were sold to him and charged to him on plaintiffs’ books; that the said plaintiffs rendered all their bills to him and never made any claim, until this suit, that they were selling said goods on the credit of the wife. As it is said by our brother Sterrett, in Sawtelle’s Appeal, 3 Norris 310, the Act of 1848 “ enables the wife to bind her separate estate for necessaries obtained for herself and family, but the very essence of the liability is that they are furnished at her request and on her credit. If not so furnished, her separate estate is not liable:" Berger v. Clark, 29 P. F. Smith 340.

Another defence set up in the affidavit is the bankruptcy of the husband. We are asked by the defendants in error to decide whether the wife is thereby discharged from the action. This we decline to decide. The question is a very important one, and this case was put down and argued on the short list, and the defendant has furnished no paper-book. If the plaintiffs fail in giving evidence to prove that the goods were sold to the wife on her credit, that question will not arise. Sufficient unto the day is the evil thereof.

Judgment reversed and procedendo awarded.


author: Mr. Justice Mercur

text:
    Fritsch and Wife versus City of Allegheny.
    j, A municipality is bound to keep its streets in good condition and repair.
    A street may be put out of repair by obstructions thereon -which impede travel or make it dangerous. To repair a street requires the removal of all such obstructions.
    2. What is or is not negligence, in a particular case, is generally a question for the jury.
    3. The plaintiff’s horse took fright at the carcass of a horse which had been lying in one of the streets of the city of Allegheny for about twenty-four hours, and becoming unmanageable, ran away, inflicting severe injuries upon plaintiff. Held, that the question whether the city was guilty of negligence in not removing the nuisance was for the jury.
    October 8th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November-Term 1879, No. 208.
    Case by John Eritsch and wife against the city of Allegheny, to recover damages for injuries sustained by the wife, in consequence of her horse taking fright at the carcass of a horse lying on one of the streets of said city.
    Erom the evidence produced by plaintiffs, it appeared that on the 13th of August 1878, while Mrs. Eritsch was driving along Madison avenue, in her milk wagon, to supply her customers with milk, her horse took fright at the carcass of a horse lying on said avenue, and running away, caused the injuries which Mrs. Fritsch received. It was in evidence that the dead horse had fallen on the street about twenty-four hours before the accident to Mrs. Eritsch, and that word had been sent to the board of health, mayor’s office and the fallmaster (an officer who is required to remove such carcasses), to notify them of this obstruction and nuisance, but that no attention was paid to the notification until several hours thereafter, when the dead animal was removed. Offensive and sickening odors had arisen from the carcass, and several horses had been frightened thereby, previous to the accident. The narr. did not allege notice to the authorities, but charged neglect of duty. At the conclusion of the plaintiffs’ testimony, the defendant moved for a nonsuit, which the court, Stowe, P. J., granted, and entered judgment for defendant. The court in banc subsequently refused to take off this nonsuit, when plaintiffs took this writ and assigned this action for error.

      Frederick Luty, for plaintiff in error.
    The facts proven by the plaintiffs should have been submitted to the jury; and the court erred in entering the nonsuit. It cannot be determined by the court, as a matter of law, that a carcass lying on a public highway for a specified time, was or was not a nuisance: Johnson v. The Town of Haverhill, 35 N. H. 74. If the carcass remained on the public street, used for travel in the city of Allegheny, from one morning until the next morning, it was a nuisance per se, and the city was bound to know of its existence and continuance, and is responsible for any injury it caused — or resulting from the maintenance or neglect to remove the nuisance: Norristown v. Moyer, 17 P. F. Smith 355. It was not necessary that notice should have been given of the existence of the nuisance, it was the duty of the city to have known and removed it the first day of its existence: Norristown v. Moyer, supra; Winn and Wife v. City of Lowell, 1 Allen 179.

      W. B. Rodgers, City Solicitor, for the city.
    When the obstruction is the act of a third party, the city is not liable until after notice, actual or constructive, and the expiration of a reasonable time thereafter for its removal. There was no actual notice in this case. The street commissioner is the officer who has the general charge of streets in all cities. There was no notice to him. It is true that notice was left at the fallmaster’s house, with his son, about 6 o’clock on the evening of the 12th. The fallmaster is an officer whose duty it is to remove carcasses prejudicial to the public health. The owner Las twelve hours to remove the carcass; on his failure to do so, then the fallmaster removes the same within twelve hours thereafter, at the expense of the owner, or if unfit for use, at the expense of the city, upon the order of the health officer. The accident happened before the expiration of twenty-four hours from the time the horse fell. The horse had not laid on the street a sufficient length of time to charge the city with constructive notice, and make it in default for not removing it. To charge the city with constructive notice the obstruction must have been of such long duration as to be generally observable, and sufficient time allowed for its removal: McLaughlin v. Corry, 27 P. F. Smith 113; Harrison et al. v. Collins, 5 W. N. C. 467; Manchester v. Hartford, 30 Conn. 118; McGinty v. New York, 5 Duer 674.
    In Norristown v. Moyer, supra, the obstruction had been erected for seven years. The case of Winn v. Lowell, supra, was under the Massachusetts statute, where the town is bound to remedy a defect existing for twenty-four hours.
    October 20th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

In this ease the court ordered judgment of nonsuit against the plaintiffs, and refused to take it off. This is assigned for error.

A municipal corporation is bound to keep the streets, roads and bridges, over which it has jurisdiction, in repair: Dean v. New Milford Township, 5 W. & S. 545; McLaughlin v. City of Corry, 27 P. F. Smith 109. A road or street may be put out of repair by the deposit of obstructions thereon which impede and hinder travel or make it dangerous, or by partial destruction of the roadbed itself, producing the like effect. To repair means to replace, to restore to sound or good condition after injury or partial destruction. Therefore, to repair a road or street, to restore it to its former condition and give it the essential properties of a suitable public highway, requires the removal of all obstacles cast upon it, which impede its free passage: Pittsburgh and Birmingham Passenger Railway Co. v. Pittsburgh, 30 P. F. Smith 72.

An action will lie against the municipality to recover • damages for an injury sustained by reason of the negligence of its officials to keep its roads and streets in proper repair: Dean v. New Milford Township, supra; Allentown v. Kramer, 23 P. F. Smith 406; Township of Newlin v. Davis, 27 Id. 317. What is and what is not negligence in a particular case is generally a question for the jury and not for the court. If, there be no doubt as to the acts committed, yet if there be substantial doubts as to the reasonable and natural inferences to be drawn from those acts, they should be submitted to the jury: McKee v. Bidwell, 24 P. F. Smith 218; Crissy v. Hestonville Passenger Railway Co., 25 Id. 83.

In the present case, the obstruction complained of was not on a county road in a rural district, but in an avenue in a city, which, in population, ranks third in this Commonwealth. The subject-matter of -the obstruction was an undoubted nuisance. A horse fell and died in this public avenue, about nine o’clock on the morning of the 12th of August. The body was suffered to lie there through all of that midsummer day. One of the witnesses testifies, “ there was such a bad smell” that about nine o’clock in the evening, she sent to the mayor’s office to notify him. At eight or nine o’clock the next morning the carcass remained there, and the injury complained of occurred. That it was well calculated to frighten a horse being driven along the avenue, does not appear to be questioned. The same witness who testified as to the offensive odor says: “many men went back again; couldn’t go past; all the horses got frightened there.” The main ground of the defendant is, that the carcass had not remained there for such an unreasonable time as to create a presumption of negligence on the part of the city in not removing it, especially if not notified. It may be conceded that a dead animal might lie in a public street for so short a time, that it would be the duty of the court to say, as matter of law, the municipality was guilty of no implied negligence in not removing it. We do not, however, think the facts proven here present such a case.

Negligence is the absence of proper care, caution and diligence; of such care, caution and diligence, as under the circumstances, reasonable and ordinary prudence would require to be exercised. It may consist as well in not doing the thing which ought to be done, as in doing that which ought not to be done, when in either case it has caused loss and damage to another: Turnpike Co. v. Rutter, 4 S. & R. 6; Erie City v. Schwingle, 10 Harris 384; McCully v. Clark, 4 Wright 399. Hence, in this case one question to be determined is, whether the municipality, acting through its officials, failed to exercise such reasonable care and diligence in not ascertaining the existence of this nuisance, and in not removing it prior to the injury sustained by the pláintiff. The evidence indicates this nuisance to have been lying in the immediate vicinity of several dwelling-houses. If this be so, it will be a fact for the jury to consider, as well as the extent of travel on the avenue. If it be one on which there is but little travel, and not compactly built upon, no such prompt duty to discover it would be imposed on the public officials as if it were in the heart of the city. Dense population and continuous travel on a street call for more care and watchfulness on the part of the authorities, than over streets not thus populated and used.

This action, however, does not rest on the fact that the carcass emitted' an offensive odor, although that may be a circumstance to consider as bearing on the question of negligence in not removing it; but it rests on the alleged fact that it was negligently suffered to remain an unreasonable time, thereby causing fright to the horse of the plaintiff, and the injury and damage resulting therefrom.

The evidence discloses an active effort, by one living near the nuisance, to notify several officials on the afternoon and evening of the first day; but it appears to have been difficult to find any one to heed the complaint. The plaintiff was guilty of no negligence in not giving notice, for she had no knowledge of the nuisance until the moment at which she sustained the'injury. It is true the declaration does not aver notice to the defendant, which prudence may have dictated should have been done, and which may still be done by amendment; yet it does expressly charge negligence.

The evidence was sufficient to have been submitted to the jury under proper instructions, and the learned judge erred in not taking off the judgment of nonsuit.

Judgment reversed and a frocedendo awarded.


text:
    Carlisle versus Bindley.
    A bond was executed conditioned for the payment of a certain sum, which included an original debt, and the usurious interest calculated thereon. A judgment was obtained on a mortgage given as security for the bond. Held, that the judgment was conclusive, and usurious interest paid in settlement thereof could not be recovered back.
    October 8th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.

      Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 246.
    Assumpsit by James D. Carlisle against John O. Bindley to recover $884.77 usurious interest.
    The defendant had built houses for the plaintiff on land, the title to which was in plaintiff’s wife. After the completion of the buildings, a settlement was made between the parties, and terms of payment and securities were agreed upon. The plaintiff gave his bond and a mortgage on the premises, in which mortgage the wife joined. Usurious interest was included in the bond and mortgage so given. Default having been made in payment, according to the terms of the mortgage, the defendant issued a scire facias on the mortgage, and obtained judgment thereon Feb. 16th 1877, for $11,835.23, and costs of suit. Under the terms of the mortgage execution could only issue for the instalments as they fell due. The last fell due November 1st 1881.
    On the 15th of June 1877, Mr. Carlisle paid Mr. Bindley $9567, which the latter consented to take in full satisfaction of his judgment for $11,835.23, and thereupon the judgment on the mortgage was satisfied, and the bond was surrendered. This last payment included usurious interest on the original debt, to the amount of the verdict in this case, but included no such interest from the date of the judgment.
    Defendant’s counsel offered in evidence the record of the scire facias on the mortgage and the judgment thereon, and asked the court to instruct the jury that the judgment was a bar to plaintiff’s recovery.
    This instruction was refused pro forma, and a verdict rendered for plaintiff, subject to the opinion of the court on the question of law as to the record of the judgment and its effect. The court subsequently entered judgment for the defendant on the point reserved, Ewing, P. J., filing the following opinion:
    “In Heath v. Page, 12 Wright 130, relied on by plaintiff’s counsel, the question involved in this ease does not appear to have been discussed by counsel, either in the District Court or in the Supreme Court. In that case judgment had been entered on the mortgage before the final conveyance of the land taken in payment of the debt.
    “ In his opinion on the question of law reserved, Judge Hampton seems to have had this question in his mind, and excludes it from that case, noting the fact that the absolute agreement to take the land at a specific price, in payment of the mortgage, had been consummated before the entry of the judgment, and this agreement he shows constituted the payment of the debt.
    “ In the Federal Insurance Company v. Robinson, 1 Norris 357, the Supreme Court decided, that where usurious interest had been paid on execution attachment, issued on a judgment confessed, the debtor could not recover the usurious interest so paid, not on the ground that it was a voluntary payment, but that the judgment confessed, and execution thereon was a conclusive adjudication of the matter. They did not decide whether or not a payment of a judgment confessed on bond and warrant of attorney, without execution issued, but including usurious interest, would be conclusive.
    “But in Hopkins v. West, 2 Norris 109, that precise question came up, and it is held on good reason, that such a judgment is a conclusive adjudication that the amount stated in the judgment was due at the time stated.
    “ In the present case, so far as the mortgage was concerned, the judgment is a conclusive adjudication that the plaintiff then owed the defendant the amount of the judgment, falling due at the times therein specified.
    “ Had this judgment been entered on the bond, it is not pretended that the plaintiff could recover. It is not pretended that the mortgaged premises were riot in fact worth as much, or more, than the debt paid. The evidence indicated plainly that it was worth more, and that the mortgage was a source from which the defendant was to be paid, and was in fact paid. He satisfied his judgment on payment of a much less amount, discounting liberally the instal ments not presently due.
    “ In the absence of proof that the mortgaged premises, against which judgment was obtained, had been insufficient to pay the judgment we are unable to see any valid reason for distinguishing between the payment on a conclusive adjudication, as to the amount due on the mortgage, and a similar adjudication on the bond. The plaintiff had his day in court, where he should have raised the question he now asks to have adjudicated.”
    The entry of judgment was assigned for error by plaintiff, who took, this writ.

      J. H. Baldwin, for plaintiff in error.
    A mortgage is the security for the debt, evidenced by note or bond; as between the parties it gives the mortgagee a title to the land — the creditor may have his action on his bond before, after, or at the same time with his- scire facias on his mortgage, and, therefore, such scire facias is a proceeding in rem, and not an action in personam.. Doubtless the debtor has a right to appear and interpose'his defence to such proceeding; and doubtless such defence would have been made in this case, but for the new agreement between the parties, but he was under no obligation to do so. Suppose the security sold for a nominal sum the creditor has his right of action for the unpaid balance of his claim. Will it be pretended that the debtor cannot interpose his defence of usury to such an action? Would the judgment previously entered on the mortgage be a bar to such defence ? Or, again, if after sale of the security, the debtor pays his bond and lifts it, will he not have his right of action for the usury paid ? The argument of the court below is that the proof in this case indicated a value greater than the debt, and that in the absence of negative proof, that fact is to be assumed. The court should have been governed by Heath v. Page, 12 Wright 130.

      Knox & Reed, for defendant in error.
    This court laid down the rule that usurious interest included in a judgment, whether adversary or confessed, cannot be recovered back by the defendant after he has paid the judgment in full: Hopkins v. West, 2 Norris 109; Insurance Co. v. Robinson, 1 Id. 357.
    The plaintiff in error assumes that if the mortgaged property had sold for a nominal sum, the defendant would still have a right, in a suit for the deficiency on his bond, to set up the defence of usury. This proposition we do not believe to be correct. The authorities are to the contrary. A judgment in one suit is conclusive in another for the same claim or demand: Yeomans v. Rexford, 11 Casey 273; Burke v. Miller, 4 Gray 114; Sparhawk v. Wills, 5 Gray 428; Cromwell v. County of Sac, 4 Otto 351; Lewis v. Nenzel, 2 Wright 222; Cist v. Ziegler, 16 S. & R. 282; Eastman v. Cooper, 15 Pick. 276.
    October 20th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

We affirm this judgment upon the opinion of the learned president of the court below.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Williams versus Danziger.
    By a written agreement signed by counsel it was agreed that an arbitration “ shall be final and without exception or appeal.” Held, that the parties were precluded thereby from exception or appeal. McCahan v. Kearney, 9 Casey 535, followed.
    October 9th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent..
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 316.
    In the court below Mrs.- Sarah D. Williams brought an action of debt against Morris H. Danziger, to recover the first quarter’s rent on an alleged parol lease. The case was referred to arbitrators, under the Compulsory Arbitration Act, and it was agreed by the counsel of the different parties that the arbitration “ shall be final and without exception or appeal.” An award was entered in favor of defendant, when plaintiff filed the exceptions which will be found in the opinion of this court. The court below dismissed the exceptions and plaintiff took this appeal.

      Thomas M. Marshall and T. Williams, Jr., for appellant.—
    It has always been the practice of the courts in this state to set aside the verdicts of juries and awards of arbitrators, whenever it appeared that injustice had been done through fraud, misconduct at the trial or undue influence, no matter what may have been the agreement of parties concerning the finality of the same. See Wynn v. Bellas, 10 Casey 164.

      Josiah Cohen, for appellee.
    The parties voluntarily sub'mitted the case to arbitrators, and stipulated that the submission should be final and conclusive, and they therefore are precluded by their agreement: McCahan v. Reamey, 9 Casey 536. (See following case.)
    November 10th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

It was expressly agreed by the parties that the arbitration should be final and without exception or appeal.” The agreement was in writing, and comes up with the record. A party is precluded by an express agreement not to appeal and file exceptions. This is settled law. See McCahan v. Reamey, 9 Casey 535, where the authorities are collected by Mr. Justice Strong.

It was alleged, however, that the case did not come within the rule above stated, because: 1. The award was procured by fraud; 2. That the arbitrators were guilty of improper conduct; 3. That the defendant did not assent to the agreement to waive exceptions •and appeal, and therefore it bound neither party; 4. After-discovered testimony; and 5. That the arbitrators charged excessive fees.

The alleged fraud, as charged, consisted in this: that the defendant procured the award by giving false testimony in his own behalf, at the arbitration ; there was no sufficient proof of misconduct on the part of the arbitrators; the allegation that the agreement for the finality of the submission was not assented to by the defendant is contradicted by 'the record; the after-discovered testimony amounts to nothing, and could not be taken advantage of in this manner if it did, while the alleged over-charge by the arbitrators furnishes no ground for setting aside their award. The proper place to raise this question is upon a taxation of the costs.

There is nothing to take the case out of the rule of law above referred to.

Judgment affirmed.


text:
    Danziger versus Williams.
    1. ■ A suit was brought to recover the first quarter’s rent, on an alleged parol lease. The defendant entered no plea, but filed an affidavit of defence wherein he denied the lease and the occupancy of the premises. A compulsory arbitration was had, and it was mutually agreed that the arbitration “ shall be final and without exception or appeal.” The award was for defendant and it was duly entered. An action was subsequently brought for the second quarter’s rent on the same alleged lease, and defendant again denied the lease, or the occupancy of the premises, and pleaded in bar the award in the previous action. Held, that it was a good plea in bar.
    2. It seems, that the affidavit of defence in the first suit was a part of the record, and should be considered when the record of said suit was examined, in order to be certain what was claimed and denied.
    October 9th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 41.
    Debt by Mrs. S. D. Williams against Morris H. Danziger to recover the second quarter’s rent claimed to be due on an alleged parol lease. A suit had been previously brought against Danziger to recover the first quarter’s rent on this alleged parol lease. In that case the defendant entered no plea, but filed an affidavit of defence denying the agreement for a lease or the occupancy of the premises. A rule for arbitration was taken, and by an agreement filed the “arbitration shall be final without exception or appeal.” The award was for defendant, which was duly entered." See Williams v. Danziger, ante 232. In this suit the defendant again denied the lease and occupancy of the premises, and pleaded in bar the former suit. The case was submitted, without a jury, to the court, Bailey, J., who refused to consider the testimony of one of the arbitrators called by defendant “ to show that the sole question tried by the arbitrators was as to the existence of the alleged lease and who declined also to consider the affidavit of defence in the former suit. And as a matter of law the court found that the plaintiff was not estopped by the award in the former suit, and entered judgment for the plaintiff. The defendant took this writ and assigned this action for error.

      Josiah Cohen, for plaintiff in error.
    The subject of controversy in this suit was at issue in the former suit, and cannot be readjudicated in this action: Russell v. Place, 4 Otto 608 ; Cromwell v. County of Sac, 4 Id. 360. The testimony of the arbitrator would have shown the identity of the two actions. The only defence in the former suit was that disclosed in said suit, and that would have shown that it was asserted no such lease was ever made.

      T. M. Marshall and T. Williams, Jr., for defendant in error.—

      November 10th 1879.
    Every estoppel ought to be reciprocal: Bouv. Inst., sect. 2932; Hempstead v. Easton, 33 Mo. 147; Schuhman v. Garratt, 16 Cal. 103. It will not be pretended that if the award of arbitrators had been in favor of the plaintiff that the defendant would have been estopped from making a defence to a suit for a subsequent quarter’s rent. In Hibshman v. Dulleban, 4 Watts 191, the court says “ a judgment is only conclusive between the same parties on the same matter directly in question.” This suit was for a different quarter’s rent.
   Mr. Justice Paxson

delivered the opinion of the court,

This was an action of debt, brought to recover the second quarter’s rent upon an alleged lease of a building for one year, at a rental of $1600, payable quarterly in advance; the rent in controversy falling due July 1st 1877. By agreement filed, jury trial was dispensed with, and the case submitted to the court under the Act of Assembly

The defendant pleaded in bar a former action between the same parties, in the same court (see preceding case), for which a prior quarter’s rent, under the same lease, had been demanded, and in which there was an award of arbitrators in his favor, unappealed from.

A failure to recover one quarter’s rent would not necessarily preclude a recovery for a subsequent quarter. As an illustration, the defence of payment might be a good defence to an action for the first quarter, and yet fail as to the second. But if the first action was defeated exclusively upon a ground which denied the right of action, it would be a good plea in bar to a suit brought to recover subsequent rent under the same lease. No authorities are needed for so plain a proposition.

We are of opinion that the defendant was entitled to. a judgment in his favor upon this plea. The record of the first suit shows that the only defence set up was that the defendant did not lease or occupy the premises, as claimed by the plaintiff. It is true, there was no plea filed; but there was an afiidavit of defence, in which this single ground of defence was taken. The affidavit is a part of the record, and is entitled to be considered when we examine the record of the first suit to ascertain just what was claimed and denied.

The award having been in favor of the defendant, and no appeal therefrom, it becomes a judgment, and is as conclusive upon the parties as any other form of judgment. The defence set up was one that went to the entire cause of action. That question having been once determined by a competent tribunal, it cannot be inquired into again.

This view of the case renders a consideration of the first assignment of error unnecessary. The evidence of the arbitrator as to what occurred at the arbitration, even if admissible, was not needed. When the record shows just what was in dispute, there can be no reason for resorting to parol evidence.

Judgment reversed.


author: Mr. Justice Gordon

text:
    Grubbs et al. versus McDonald et al.
    1. Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative must he established not in a doubtful but in a positive manner.
    2. Where immaterial additions are made to a will by a stranger, such as the affixing a seal thereto, or adding the words “his mark,” these alterations do not affect the validity of the will.
    3. It seems, it is always better for the court to put a case to the jury on the evidence generally, rather than upon the testimony of’one or more witnesses, selected from the whole number sworn during the trial. Such selection tends to make the case turn upon the credibility of the witnesses named, and upon a partial view of the evidence, both of which tend to weaken or exclude other testimony and circumstances of the case which should be considered.
    October 8th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 234.
    This was a precept from the register of wills of Allegheny county, directing an issue to try the validity of a writing purporting to be the will of John Grubbs, deceased. In said issue John F. McDonald and others, were plaintiffs, and James Grubbs and others, defendants. John Grubbs died May 26th 1876, in the sixty-ninth year of his age. He left a farm of about ninety acres, and a widow and five sons, Andrew, Lewis, James, A. Reed and Frank A. Grubbs, and one daughter, Martha, intermarried with Robert Huston. On the day before his death he made a will which contained the following provisions:
    “ I give, devise and bequeath to my beloved wife, Isabella Grubbs, who shall have her home with my two sons, Adam Reed and Francis A., and that they shall support her as long as she lives.
    “ I give, devise and bequeath to my two sons, Adam Reed and Francis A., the farm I now occupy, to be divided equally between them (Adam Reed and Francis A.); all the rest and residue of my estate, real, personal and mixed, I give, devise and bequeath to be equally divided between my three sons, Andrew, Lewis, James and my daughter, Martha Ann.

      “ And lastly, I do nominate and appoint John F. McDonald to be the executor of this my last will and testament.

      “In testimony whereof, I, the said John Grubbs, to this my last will and testament, have subscribed my name and affixed my seal this 25th day of May 1875.
    Signed in presence of us:

    At the time of his death Adam Reed and Francis A. Grubbs were living with their father, and were farming the place on which the testator had resided. His other children had left before the purchase of the farm by the testator. Until the date of his last illness there was no allegation that testator was not competent to make a will. Previous to his death he suffered with a painful illness, and the efforts of his physician were chiefly directed to alleviating his pain, and to attain that res.ult administered morphia to him. On the day of the execution of his will it was alleged that by reason of his illness and the influence of morphia, testator’s mind was so much impaired that he was not competent to make a will. Lewis Grubbs testified that his father did not recognise him. The testator’s widow testified that he was in an enfeebled condition, and did not recognise his son Lewis. On the. contrary the wife and son of James Grubbs testified that he was conscious. The attending physician testified he was conscious, rational and understood what he was talking about. The only persons who saw the testator between two and five o’clock on the day the will was executed, were John F. McDonald and John and Samuel Wallace, who were neighbors, and who were sent for to write and witness the will.
    It appeared from the testimony of McDonald and the two Wallaces that McDonald came to the house about two o’clock. James Grubbs ushered him into the room, and asked his father .if he knew the man, and the reply was given, “ Yes, Mr. McDonald.” He found Mr. Grubbs lying there greatly reduced, but not apparently suffering great pain. Testator spoke freely to him. Being left alone, McDonald asked him what he had been sent for. He replied that he wanted to get his business fixed up; that these two boys here (meaning Reed and Frank) had always stayed with him, and that he wanted to fix them right before he was called away. When asked what he meant by fixing them right, he said he wanted to divide that between them. -Mr. McDonald then asked him '(and Samuel Wallace was present and also so testified) whether it was his will that the place on which he lived should be equally divided between Reed and Frank, and he said it was. He told McDonald that his other children had been provided for, and that as to his wife, she was to have a home on the place and be supported by the two boys, Reed and Frank. McDonald started to write this down, but being a slow penman, and the old man’s disease requiring attention, he was delayed until Samuel Wallace came into the room, when he told him the instructions that had been given by Mr. Grubbs, and Wallace reduced them to writing. A blank was left in the will for the name of an executor. Before this was filled John Wallace came into the room, and in the presence of all three the will was read over to the testator. The witnesses wanted to know whom he would name as executor. Mr. Grubbs thought it would do as well without, but they differed with him, and asked him how he would like Mr. McDonald, and he at once expressed his satisfaction, saying, “If he would.” When the will was read over, he said it was all right. He was well acquainted with John E. McDonald, Samuel and John Wallace. When it came to signing, although a good penman, testator made his mark.
    At the trial, before Collier, J., the plaintiffs offered in evidence the instrument purporting to be the will. ' Defendants objected on the grounds that it was not sufficiently proven, and because it appeared to have been altered. (1st assignment of error.)
    The following points were submitted by plaintiffs, to which are appended the answers of the court:—
    1. That there is no evidence in the case upon which the jury would be justified in finding that any undue, influence was used upon the testator, John Grubbs, in regard to his last will and testament.
    Ans. “Affirmed.” (5th assignment.)
    8. The testimony as to the physical and mental condition of John Grubbs, before and after the execution of the will, and the testimony as to his previous statements of the way in which he proposed to dispose of his property, becomes entirely immaterial and irrelevant, if the jury believe McDonald, John and Samuel Wallace.
    Ans. “Affirmed.” (6th assignment.)
    The following were among the points of defendants, with the answers of the court thereto:—
    3. That one may be able to recognise an acquaintance, to answer questions rationally, and yet be incapable of exercising the connected thought, judgment and reflection necessary to execute a valid will.
    Ans. “Affirmed.”
    4. That where one is under the influence of narcotic poison, such as morphia, the tests of intelligence suggested in this point, viz., the recognition of an acquaintance and the ability to answer questions rationally, are to be received with greater caution.
    Ans. “ If the jury find the fact to be as stated in this point, they must take it with the other facts they find in the case, to enable them to determine the testamentary capacity of the testator.” (7th assignment.)

      In the general charge, the court, inter alia, said:—
    “ The paper has been admitted in evidence to you as the last will of the deceased. This makes a prima facie case for the plaintiffs, and unless the paper is impeached successfully, your verdict should be for the plaintiffs. But the defendants do impeach the validity of the will, on the ground of want of testamentary capacity in the testator to dispose of his property by will.
    [“It is alleged that at the time the will was signed, the'testator was in a dying condition, and unconscious of his act, and of this the defendants must satisfy you from the weight of the evidence. The burden of proof is upon them.] (3d assignment.)
    “ In conclusion, you will confine yourselves to the single question of the testator’s capacity to make the will; for there is no sufficient evidence to justify you in finding that undue influence was used to procure the making of the alleged will; [and in weighing the evidence, should you think it doubtful or balanced, you ought to incline in favor of testamentary capacity; that is, in favor of the plaintiffs.”] (4th assignment.)
    Verdict for plaintiffs; when defendants took this writ, and, inter alia, alleged that the court erred as set forth above.

      M. W. Acheson and R. E. Stewart, for plaintiffs in error.—
    The alleged testamentary writing, when produced in court, had the name of John Grubbs subscribed thereto, with a seal affixed to his name, and a mark, with the words “his mark.” But it appears from the testimony of the subscribing witnesses that when they left the bedside of the dying man, the paper was in a very different condition. They admitted that after they had left the house of John Grubbs, they, or one of them, put the seal to his name and wrote the words “ his mark.”
    It was error for the court to instruct the jury that the defendants must satisfy the jury that Mr. Grubbs was in a dying condition, and unconscious of his act at the time pf the execution of the alleged will, and that the burden was upon them to show these facts. It was error also to instruct the-jury that if the whole evidence left the case doubtful as to testamentary capacity, the verdict should be for the plaintiffs: Symes v. Green, 5 Jurist N. S. 742; 1 Redfield on Wills 50. The court erred in affirming the 8th point of plaintiffs: Rambler v. Tryon, 7 S. & R. 90; Irish v. Smith, 8 Id. 573; McTaggart v. Thompson, 2 Harris 149.

      John S. Ferguson and J. W. Over, for defendants in error.—
    The will was properly admitted. It was proved by the testimony of the three subscribing witnesses. Their testimony, although not requiring it, was aided by the presumption of the testator’s capacity arising from the mere evidence that he had put his mark to the paper as and for his last will and testament.

      It was changed in but two particulars. When John Grubbs signed it with his X the words “his mark,” and the scroll seals did not appear on the paper. After the witnesses had left the house taking the will with them, they thought fit to add these words and the scrolls. By so doing they gave no additional force to the paper. It was complete without these additions. It would be a monstrous doctrine that a man’s last will should be liable to be defeated by the ignorance or fraud of its custodian.
    The presumption of capacity resulted from the proof of execution. As between the real parties the executor stood in the position of a stakeholder, and the fact of execution being proved, those who denied the validity of the paper had upon them the burden of proof. The pleas were undue influence, and want of testamentary capacity, and, inconsistent as such pleas are, they in effect amounted to a declaration that John Grubbs did execute the will as and for his last will, but that it ought not to operate as such, because it was either executed by him under undue influence, or because he had not at the time sufficient testamentary capacity.
    The court did not err when it said that if the evidence of McDonald and the Wallaces was true, there was no sufficient evidence from which the jury could find want of testamentary capacity: Cauffman v. Long, 1 Norris 72.
    November 10th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

It is always better for the court to put a case to the jury on the evidence generally, rather than upon the testimony of one or more witnesses selected from the whole number sworn during trial. Such selection tends to make the case turn upon the credibility of the witnesses named, and upon a partial view of the evidence, both of which tend to weaken or exclude other testimony and circumstances of the case which should be considered.

Complaint is made that the court below, in the trial of the case in hand, fell into this error. The court, adopting the proponents’ eighth point say : “ The testimony as to the physical and mental condition of John Grubbs, before and after the execution of the will, and the testimony as to John Grubbs’s previous statements of the way in which he proposed to dispose of his property, becomes entirely immaterial and irrelevant if the jury believe John F. McDonald, John and Samuel Wallace.”

It would certainly have been better to have said, if, from the evidence, you believe that at the time of the making and execution of the will, John Grubbs was possessed of a sound mind and disposing memory, his previous and subsequent condition are not to be considered; nevertheless, on a careful examination of the evidence, we are not prepared to say that the court in the instructions, as above set forth, committed any serious error.

The testimony of McDonald and the two Wallaces, who were neighbors, without either interest or prejudice, is very explicit and clear, and, especially, when considered in connection with the evidence of the attending physician, does establish, beyond a peradventure, the testamentary capacity of John Grubbs, and if believed, as it seems to have been, the jury could do no otherwise than find for the proponents. On the other hand, the learned judge fairly submitted the testimony produced by the contestants, and left the jui’y to say whether or not, at the time of the making of the will, John Grubbs had testamentary capacity. On the whole we think no injury was worked to the defendants in the disposition of this part of the case. Neither do we discover error in any other of the court’s rulings. It is true, complaint is made, in the third and fourth assignments, that the burden of proof was thrown upon the contestants to prove want of testamentary capacity, and that the court told the jury that if, in weighing the evidence, they thought it doubtful or balanced, they ought to incline in favor of disposing ability. But what else could the court do under the rule as laid down in Landis v. Landis, 1 Grant 248, and in many other authorities, that “the law presumes every one of full age competent to make a will, of sufficient mental capacity to do the act; and allegations to the contrary must be proved.” Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative he must establish, not in a doubtful, but in a positive manner. So complaint is made of the court in saying to the jury that there was no evidence that undue influence had been used with John Grubbs in the making of his will. This, however, was only the fact of the case; indeed the very contrary appears. Frank and Reed, if we credit the testimony of Dunlap and Huddle, could not muster courage to propound their desires with reference to the property to their father personally, but asked these persons to suggest the matter for them. This they did in a very cautious manner, and nothing came of it. The old man seems to have had a very positive will of his' own, and manifested a disposition to exercise it in strict accordance with his own ideas.

Finally, we notice the objection to the will itself as evidence; it was said to be altered in a material manner, after its execution by Grubbs, and in this manner its effect as a testamentary paper destroyed. This is an extraordinary proposition, for a will, unlike a deed, has but a single party, and the only thing to ascertain is what that party desired concerning the disposition of his property. The idea, therefore, that any one, by unwarranted interpolations or alterations, could defeat such will, is certainly novel. We might indeed, imagine a case where the mutilation or alteration of a testament was so great as to render it impossible to say what the will of the testator had been, and, so, as evidence of such will the paper would be worthless. Such, however, is not the case in hand. The will, as produced, is found to have the name John Grubbs, with his mark, appended thereto; over and below the mark, in the ordinary-manner appear the words “ his markthere is also a seal attached. These last, that is, the words “his mark” and the seal, are the alterations complained of. They were made by McDonald under the supposition that they were parts of a necessary legal form, found in his form book, and so, in his simplicity he added them. It will be seen, however, that these additions are wholly immaterial. The will, without them, was well executed under the Act of Assembly, and they certainly do not obscure the .intent of the testator or render doubtful the intended disposition of his property.

We conclude. this case was well and properly tried, and must be affirmed; accordingly the judgment is now affirmed.


text:
    Robertson versus Hay to use of McCandless, &c.
    1. R. executed to H. a bond and mortgage, and gave therewith a certificate of no defence. These instruments were all placed in the hands of G. for the purpose of raising money for R., as the latter should need it, and give an order therefor. Without any instructions from R., G. negotiated the mortgage. Held, that although G. sold the mortgage, and caused it to be transferred without an order from R., and failed to account for the money received therefor, these facts were insufficient to defeat a recovery by the assignee. The papers which R. placed in the hands of G., not only impliedly authorized a sale of the bond and mortgage, but invited purchasers by expressly declaring that he had u no defence of any kind whatever.”
    2. Where one of two innocent persons must suffer from the tortious act of a third, he who gave the wrongdoer the means of perpetrating the wrong must bear the consequences of the act.
    3. An alteration of a deed, although material, if made by a stranger, will not affect the validity of the instrument.
    4. An immaterial alteration of a deed, although made by a party thereto, will not avoid the same or make it inadmissible in evidence.
    October 10th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November .Term 1879, No. 110.
    Scire facias sur mortgage by A. B. Hay, to the use of James McCandless, against Stewart Robertson.
    On June 18th 1873, defendant executed his bond and mortgage for $15,000 to A. B. Hay, who was the law partner of S. B. W. Gill. The mortgage was acknowledged June 24th 1873, and recorded June 28th 1873. The defendant also executed a “ certificate of no defence,” dated July 18th 1873, and acknowledged July 19th 1873.

      Robertson received no consideration at the time these instruments were executed, but they were all handed to Gill, who was to retain them, and raise money thereon for Robertson, in case he needed it, and in that event he was to notify Gill, who was then to negotiate the mortgage to procure the funds required. Without any notification from Robertson, Gill, on June 24th 1873, sold the mortgage to McCandless, and at the instance of Gill, Hay, his law partner, assigned it to the purchaser. McCandless, in the negotiations, treated with Gill alone, and afterwards received from Gill the instalments of interest on the mortgage, as they severally fell due. Whether or not Robertson received from Gill any of the consideration paid by McCandless for this assignment, was disputed. There was no testimony to show positively that Robertson did know anything about the transaction, other than the fact that in 1875 he procured a policy of insurance on the property mortgaged, which contained this recital: “ Loss, if any, first payable to James McCandless, mortgagee.” Subsequent to the assignment, Gil'l, who was the agent and attorney of McCandless, and retained the mortgage in his custody, inserted therein a clause waiving the right of exemption under the Act of February 25th 1873, Pamph. L. 161, which act was repealed by the Act of April 10th 1873, Pamph. L. 712. He also modified the “ certificate of no defence” so as to make it appear as an extension by the mortgagor of the mortgage for one year. Gill absconded in 1877, and the interest remaining unpaid, McCandless brought this suit on the mortgage.
    At the trial, before Railey, J., the plaintiff offered in evidence the certificate of no defence.
    Defendant objected, because it showed material interlineations, which were made while in possession of the plaintiff, without the authority of the defendant, and without his knowledge or consent; and that the paper was, therefore, void - and incompetent and irrelevant.
    The court overruled this objection, and admitted the paper, saying : “ There is no such material alteration as would warrant you in disregarding this certificate of no defence.” (8th assignment of error.)
    In his fourth point, the defendant asked the court to charge:—
    That the alteration in the mortgage in evidence (as shown by a comparison of that mortgage with the record offered in evidence) is a material alteration; and.if the jury believe from the evidence that said alteration was made after the execution and acknowledgment of said mortgage, while it was in the custody of the plaintiff, or his agent or attorney, and without the knowledge or consent of the defendant, then the plaintiff cannot recover
    The court, in their answer, inter alia, said:—
    “ There was no Act of Assembly in existence on June 18th 1873 to waive, so that the interlineation was wholly immaterial. There was nothing for the defendant to waive at that time. * * * For this reason I refuse the point, and you will regard the question which has been raised about the addition to or alteration of the mortgage as not existing, so far as its effect upon- this case is concerned.” (5th assignment of error.)
    In affirming the plaintiff’s points, the court charged:—
    “ If you find that Stewart Robertson executed and acknowledged this mortgage, together with the accompanying bond and certificate of no defence, and placed them jn the hands of Gill, for the purpose of negotiation at some time or other, and Gill, on the 24th of June 1873, exhibited to Mr. McCandless the mortgage, bond and certificate of no defence, in the condition McCandless testifies they then were, and if, upon the faith of these papers, McCandless then purchased the mortgage for the sum of, $13,000, and made payment to Gill, by his check, and that McCandless acted in good faith — and that you must find from the evidence— then the plaintiff is entitled to a verdict for the amount of his claim with interest.” (1st, 2d and 3d assignments of error.)
    The verdict was for plaintiff for $17,382.75; and after judgment, defendant took this writ, among his assignments of error being those above noted.

      Hampton & Dalzell and A. N. Sutton, for plaintiff in error.—
    If a stranger, without the privity of the obligee, alters a deed by interlineation, addition, erasing, or by drawing of a pen through a line or word, or in any point not material, it will not avoid the deed; but if the obligee himself alters the deed, by any of these ways, though it is in words not material, or a stranger does it in a point material, the deed is void: Pigot’s Case, 11 Co. 27; Moore v. Bickham, 4 Binn. 1; Marshall v. Gougler, 10 S. & R. 164; Adams v. Frye, 3 Metc. 103; Smith v. Weld, 2 Barr 54; Neff v. Horner, 13 P. F. Smith 331; Morris v. Vanderen, 1 Dall. 67.
    The assignee of a mortgage stands in no better position than the mortgagee, because the security is not negotiable: Duquesne Bank’s Appeal, 24 P. F. Smith 426; McMullen v. Wenner, 16 S. & R. 20; Weaver v. McCorkle, 14 Id. 306.
    A party about to purchase a security is -bound, as a requisite to holding it discharged of equities existing between the original parties, to inquire of the obligor if he have any defence or set-off to it: Eldred v. Hazlett’s Adm’r, 9 Casey 315; Frantz v. Brown, 1 P. & W. 257; McCandless v. Engle, 1 P. F. Smith 314; Michener v. Cavender, 2 Wright 334. It was not sufficient to put reliance in the certificate of no defence: Wilcox v. Howell, 44 N. Y. 398.

      M. W. Acheson and Miller & McBride, for defendant in error.
    —An immaterial alteration of an instrument will not avoid or affect it: Burkholder v. Lapp’s Ex’r, 7 Casey 322; Gardinier v.
      Sisk, 3 Barr 326; Miller v. Gilleland, 7 Harris 119; Miller v. Reed, 3 Casey 244.
    The alteration of an instrument by a stranger, though material, does not avoid it, but leaves it as effectual in law as it was before: Whart. on Evid., sects. 627, 628; Withers v. Atkinson, 1 Watts 249; Fritz v. Commissioners, 5 Harris 131; Neff v. Horner, 13 P. F. Smith 327.
    A mortgagor who gives a certificate of no defence is estopped from setting up a defence against the assignee: Ashton’s Appeal, 23 P. F. Smith 153; McMullen v. Wenner, 16 S. & R. 18; Edgar v. Kline, 6 Barr 327; Weaver v. Lynch, 1 Casey 449; Scott v. Sadler, 2 P. F. Smith 211.
    If Robertson’s own version of the transaction be true, the case is simply that Gill sold the mortgage prematurely and in disregard of the private arrangement between him and Robertson. But how is McCandless, a bona fide purchaser for value, without knowledge of the secret arrangement, to be affected by the unfaithfulness of Robertson’s own agent ?
    Where one of two innocent persons must suffer by the hand of a third, whichever has accredited him must bear the loss: Mundorff v. Wickersham, 13 P. F. Smith 87; Pennsylvania Railroad Co.’s Appeal, 5 Norris 80; Bank of Kentucky v. Schuylkill Bank, 1 Pars. Eq. 248. (See Hutchison v. Gill, post. p. 253.)
    October 27th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This is a case of scire facias on a mortgage. It is conceded that the plaintiff in error executed the mortgage described in the writ of scire facias. He also executed the bond recited in the mortgage. They both bear date the 18th of June 1873, and the mortgage was acknowledged on the 24th of the same month. On the 18th of July following he executed “a certificate of no defence.” It distinctly referred to the bond and mortgage, stating where the latter was recorded, and declared that it, together with the bond accompanying the same, “is justly, fully and entirely owing and payable according to the terms and conditions thereof. And I hereby also further certify to any person or persons who may desire to purchase the same, that I have no drawback, claim, set-off, or other defence of any kind whatever, to the payment of any part of said mortgage, either principal, interest or commissions, when due and payable or collectible by the terms and conditions therein recited as aforesaid.” On the day after its date he duly acknowledged this certificate. He placed these three written instruments in the hands of Mr. Gill, in anticipation of needing money and with the view of a subsequent negotiation of the mortgage. Hay, to whom the mortgage was executed and the bond payable, was the law partner of Gill.

The jury has found, and on evidence amply sufficient to justify the finding, that in July following, McCandless, the equitable defendant in error, purchased the mortgage of Gill in good faith and for a valuable consideration, and took an assignment thereof from Hay.

It matters not that Gill may have sold the mortgage and caused it to be transferred before he was authorized so to do, under the private instructions given him by the mortgagor; nor that he failed to account to the latter for the money received therefor. These facts are insufficient to defeat a recovery by the assignee. The papers which the mortgagor executed and placed in the hands of Gill, not only impliedly authorized a sale of the bond and mortgage; but invited purchasers by expressly declaring that he had “no defence of any kind whatever:” Ashton’s Appeal, 23 P. F. Smith 153; Hutchison v. Gill, post, page 253. This written declaration fresh from the mortgagor having been shown to the assignee when he was about to purchase, it is idle to say he should have gone to the mortgagor personally and inquired if there was any defence. This certificate was addressed “ to all whom it may concern.” It could not have been more effective and conclusive notice to one about to purchase, that the mortgagor had no defence, if it had been addressed to the purchaser by name. The main purpose of the execution and delivery of such a certificate is to dispense with personal inquiry. At the same time it gives certainty to the declaration and perpetuates the evidence thereof. It is a well-settled rule that where one of two innocent persons must suffer from the tortious act of a third, he who gave the wrongdoer the means of perpetrating the wrong must bear the consequences of the act. By placing the papers in the hands of his agent and attorney, the mortgagor gaye him the means of making sale of the mortgage and of obtaining the money of the assignee. The fraud which Gill may thereby have practiced on' the mortgagor, cannot operate to the prejudice of the innocent and good faith purchaser.

It was further contended that the alterations made in the mortgage, and in the certificate after their execution, were sufficient to avoid the instruments. In determining the legal effect of the alteration it is important to consider by whom the alteration was made, and the materiality of the alteration.

1. The assignee was no party to the alterations. He was in no manner privy to their making. They were made by Gill. He was either the agent of the mortgagor, intrusted by him with the papers, and authorized to sell the mortgage, so that the act of the agent became the act of his principal, or he was not such agent, and not intrusted, and not authorized to act for the mortgagor, in which case the alteration was the act of a stranger. Then, although material, the alteration will not affect the validity of the instru ment: Greenl. Ev., sects. 566, 568; Lewis v. Payn, 8 Cowen 71; Jackson v. Malin, 15 Johns. 297; Withers v. Atkinson, 1 Watts 236; Neff v. Horner, 13 P. F. Smith 327.

2. The alteration in the mortgage was by adding a clause waiving the benefit of a specific Act of Assembly, which, in fact, had been repealed prior to the execution of the mortgage. As then the act mentioned had no validity whereby the mortgage could be affected, an attempt to waive its provisions had no effect. It was simply an immaterial act which in no manner prejudiced the mortgagor. As, therefore, the legal effect of the mortgage remained the same, the alteration did not avoid it: Hunt v. Adams, 6 Mass. 519; Nevins v. DeGrand, 15 Id. 436; Gardinier v. Sisk, 3 Barr 326; Miller v. Gilleland, 7 Harris 119; Miller v. Reed, 3 Casey 244; Burkholder v. Lapp’s Executor, 7 Id. 322.

The substance of the alteration in the certificate is a recital that the mortgage was renewed and extended another year. It was the declaration of a fact intended for the benefit of the mortgagor. It was made by Gill long after the purchase by the assignee. It did not destroy the title which ‘the latter had previously acquired.

It may be further observed, that after this alteration appears to have been made, the mortgagor obtained policies of insurance on the building covered by the mortgage, in which was inserted the clause, “loss, if any, first payable to James McCandless, mortgagee.” The plaintiff in error thereby clearly evinced knowledge, and implied ratification, of the assignment. It is unnecessary to consider all the assignments separately. We discover no error in the answers and charge of the learned judge.

Judgment affirmed.