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to haul off this load of goods in defiance of Palmer, is sworn to by Palmer, and he seems to be corroborated by this fact. He testifies that on the road he had difficulty with Richardson and called for assistance, and a man passing by interfered.

Richardson and Carragher in their evidence, both testify that Palmer did call for assistance.

There is another very suspicious fact in the case. Palmer testifies that after the goods were unloaded and the two men got in the wagon to start off, he discovered several shawls under the cushion that the men were sitting upon, and that he got in the wagon and forced them off the seat, and got the shawls. Plaintiff and Carragher, in their evidence, concede the fact, but undertake to explain that they did not know the shawls were there.

These are the leading facts in the case, and upon them, some days after Richardson took the piece of beaver-cloth, Palmer had hiin arrested for stealing it.

When these facts are taken in connection with the further fact that Richardson was an entire stranger to Palmer, and that during this fire larceny was of common occurrence; that excitement ran high, and that law and order were, to a great extent, set at nought, can it be said that Palmer, in causing the arrest of the plaintiff, acted without probable cause and with malice? We do not think the evidence justifies that conclusion. There is another fact in the case that tends to show that Palmer acted in good faith and without malice. Before he commenced the criminal

prosecution, he took legal counsel of Mr. Swezey, an attorney-at-law in Chicago, who had been in the habit of doing business for him. Mr. Swezey testifies that Palmer gave him a full statement of the facts in the case ; that in stating the facts he gave them as fully and fairly as he did in his evidence on the stand ; and that, upon hearing the facts stated, he advised Palmer that there was sufficient ground for the arrest. It is a clear proposition of law, that if Palmer laid all the facts before his attorney with an honest view to learn if they would warrant a criminal prosecution, and was advised they would, such will go far to show probable cause.

In view of all the facts we are satisfied that justice demands that this cause should be submitted to another jury. The judgment will be reversed and the cause remanded.

Reversed and remanded.

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[JANUARY, 1874.]





Where negligence is concurrent, a child will not be held to the exercise of the same

degree of care and discretion as an adult.

MERCUR, J. The first assignment of error is not according to the rules. All the other assignments are to the charge of the court, and will be considered together. As a general rule a question of negligence must be submitted to the jury. It should be where there is any substantial doubt as to the facts, or to the inferences to be drawn from them. Pennsylvania R. R. Co. v. Barnett, 9 P. F. Smith, 259; Johnson v. Bruner, 11 P. F. Smith, 58.

There is no absolute rule as to what constitutes negligence. It is dependent upon the particular circumstances of the case. Where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of the performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proven. McCully v. Clarke et al. 4 Wr. 406; Pennsylvania Canal Co. v. Bently, 16 P. F. Smith, 30. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury. Westchester j Philadelphia R. R. Co. v. McElwee, 17 P. F. Smith, 311. Where negligence is concurrent, a child will not be held to the exercise of the same degree of care and discretion as an adult. Rauch v. Lloyd et al. 7 Casey, 358; Pennsylvania R. R. Co. v. Kelly, Ib. 372 ; Smith v. O'Connor, 12 Wright, 218; Oakland Railway Co. v. Fielding, Ib. 320; Glassey v. H., M. & F. Passenger R. R. Co. 7 P. F. Smith, 172; Kay v. Pennsylvania R. R. Co. 15 P. F. Smith, 269.

Now let us apply the law to the facts in this case. The plaintiff was a child of the age of thirteen years. He and his companion, a boy of the same age, signalled the driver, as the defendant's car crossed Thirteenth Street. The car was slackened to receive them; they stood there by the side of the driver all the way out to Forty-first Street and Lancaster Avenue. No objection was made by either the driver or conductor to their riding there ; neither of them requested the plaintiff to step inside of the car ; the conductor came to him and collected his fare; at Forty-first Street and Lancaster Avenue, the plaintiff said to his companion in a voice sufficiently loud for the driver to hear, “ I am going to get off here. The speed of the car was thereupon slackened; the plaintiff took hold of the dasher with one hand, and the iron on the car with the other, and stepped off ; the car continued in motion ; the plaintiff's foot slipped ; he retained his hold to save himself ; he was dragged two or three yards, and until

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the front wheel ran over his foot, causing the injury of which he complains. There was a crossing in the street where he desired to get off.

In view of the plaintiff's age, we think this evidence should have been submitted to the jury; the jury should have determined whether the plaintiff had been guilty of negligence ; he should be held to the exercise of that degree of care and discretion ordinarily to be expected of a child of his age, neither more or less. Smith v. O'Conner, supra. So in regard to the defendant's alleged negligence. The fact that the plaintiff was suffered to stand upon and get off from the front platform, and whether the defendant exercised proper care under all the circumstances, in not sooner stopping the car, should have been submitted to the jury. It is the duty of a railway company to cause its cars to come to a full stop, to permit a pas senger to get off. Whether the defendant properly discharged his duty with a due regard to the age of the plaintiff, and of notice of plaintiff's desire to leave the car, should have been left to the jury. We think the learned judge erred in directing that the verdict should be for the defendant. The errors are sustained.

Judgment reversed, and a venire facias de novo awarded.



[JANUARY, 1874.)




In a state whose statute law makes a married woman living apart from her husband

liable to be sued as if sole, she may be adjudged bankrupt.

W. H. Fifield, for petitioning creditors. Whiting & Napthaly, for respondent. HOFFMAN, District Judge. The question raised by the demurrer in this case is, whether the respondent, being a married woman, is liable on a contract to pay rent, and, if she has committed an act of bankruptcy, can be adjudged bankrupt. It appears that the husband of the respondent has long since renounced and abandoned all his marital rights and duties. For twelve years Mrs. Lyons has lived separate and apart from him, supporting herself and her minor children by her own exertions. In the course of her business as keeper of a lodging-house, she has contracted an indebtedness for rent, and being so indebted, and in contemplation of bankruptcy and insolvency, has made, as is alleged, an assignment of her property in fraud of the bankrupt act.

It is urged by the respondent's counsel that the contract of a married woman for the payment of money is void, and that the petitioning creditor bas no debt which the court can recognize. On this point numerous authorities are cited ; but as they, for the most part, are decisions under the

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act of April 17, 1850, and the amended act of May 12, 1862, no examination of them is necessary. The decision of the question before us turns upon the force and effect to be given to the act of March 9, 1870. Laws of 1870, p. 226.

The first three sections of that act are as follows Section 1. “ The earnings of the wife shall not be liable for the debts of the husband." Section 2. “ The earnings and accumulations of the wife and her minor children living with her, or being in her custody, while the wife is living separate and apart from her husband, shall be the separate property of the wife.” Section 3. “ The wife, while living separate and apart from her husband, shall have the sole and exclusive control of her separate property, and may sue and be sued without joining her husband, and may avail herself of, and be subject to, all legal process in all actions, including actions concerning her real estate." The fourth section prescribes the mode in which she may convey her real estate.

The object of these enactments is apparent. It was to secure to the wife, when abandoned by her husband, the fruits of her own industry, and to enable her to support herself and her children out of her

earnings and accumulations, free from his interference or molestation. For this purpose her earnings and accumulations, which at common law belonged to her husband, are declared her separate property, and her rights in respect of such property are carefully defined. She is to have the sole and exclusive control of it; she may separately sue or be sued, and may avail herself of and be subject to ali legal process in all actions. That the principal intention of the legislature was to protect deserted wives in their just rights, and not to impose upon them additional liabilities, is admitted. For this purpose they were placed in the position of quasi femes sole, and were granted all the powers necessary to enable them to earn their own livelihood, and to retain and enjoy the fruits of their industry. But to accomplish this object, it was evidently necessary to create new liabilities as well as to confer new rights. The ability to sue for moneys earned by or due to her was clearly indispensable to enable the wife to attain the object contemplated by the law.

Justice and reason, and even her own interests, demanded that she should herself be liable for all debts contracted by her. For without such liability how could she obtain the credits usually necessary in the conduct of any business; and what could be said of the morality of a law which should announce to a woman that for all debts and demands due her she shall have the right to sue and enforce payment, but as to debts due by her she may plead her coverture as a conclusive bar to the action ?

The separate property of a married woman has, on general principles of equity, been held liable for debts contracted in respect to it or in and about its management and improvement. The act of 1870 created a new species of separate property in the earnings and accumulations of the wife while separated from her husband.

The equitable principles already adopted by the courts, and usually enforced by statute, required this new species of separate property should be liable for debts incurred in its creation or management, and in the course of the business, the proceeds of which the statute enables the wife exclu

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sively to enjoy. Further discussion, however, is needless, as the language of the act is too explicit to be mistaken. It enacts that the wife separated from the husband

may sue and be sued, and that she shall be subject to all legal process in all actions.” This language is obviously inconsistent with any exemption from liability to suit for a just debt on the pretext that, being a married woman, her contracts for the payment of money are void.

The respondent being thus found to have incurred a valid indebtedness and a liability to be sued therefor as if a feme sole, she may, if she has committed an act of bankruptcy, be adjudged a bankrupt. Hilliard on Bankruptcy, p. 49; Avery & Hobbs on Bankruptcy, pp. 33–4; In re Kinkead, 7 N. B. R. p. 439. .

The demurrer is overruled and the respondent allowed ten days to answer the petition.

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Whether the engineer of a railroad runs his engine at a proper rate of speed, and keeps a proper lookout, the facts being in dispute, is a question for the jury. A mother who takes reasonable care, under the circumstances, of an infant child, is not guilty of negligence. OPINION delivered by

AGNEW, C. J. This case has been argued by the eminent counsel of the railroad company as if the facts were fixed with the certainty of a special verdict. If we assume that the child, Rosanna Long, suddenly appeared upon the track, five or six feet ahead of the locomotive on the left hand side ; that the engineer was in his proper place on the right side of the engine cab, looking out constantly, but his vision, for several feet in front of the cow-catcher, was obstructed by the boiler and carriage of the engine; and that the fireman was at his post ringing the bell, and unable to keep a lookout on the left hand side of the engine ; we might conclude that the death of the child was an accident not within the power of the engineer to avoid, and that the court might have given a binding instruction to the jury. Then, indeed, the rate of speed would be immaterial, for, upon such a sudden appearance of the child on the track, no rate of speed, no matter how slow, could have saved it. But it was because these facts were not so fixed and certain, that the question of negligence must necessarily go to the jury, to ascertain exactly how they were ; and for the same reason the rate of speed became an element properly belonging to the case. Only two witnesses saw the accident happen. One

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