exempt from liability for injury resulting from negligence which he had no reason to anticipate, there is, on the other hand good ground for holding him liable for injury caused by an act certain to be attended with injurious consequences if such consequences are not in fact prevented, no matter through whose fault the omission to take the Appeal from judgment and from order denying a new trial. This action was brought for damages for an injury to plaintiff's son, which caused his death. The place of the accident was in the city of Rochester, where the railroad track crosses Hudson street. The engineer in charge of the loco necessary measures for such precaution motive causing the injury had just backmay arise. ed his engine from the turn-table and In the present instance, preventive over switches situated just east of Hudmeasures adequate to the occasion hav-son street, across said street, and having ing failed to be provided, the removal reached his proper track, had stopped of the soil was followed by actual dam- and started forward, and was moving age to plaintiff's house, and the act of easterly, sitting on the right-hand side. removal was therefore wrongful, as of his engine, and not in a position to causing a wrong done to plaintiff. But see persons approaching to cross said the act of removal was an act done by track in Hudson st. He had with him the order and authority of defendant; on the the engine a fireman and was the act of defendant; and no man brakeman. The question whether the can get rid of liability for injury cc- bell was rung or not, whether plaincasioned to another by a wrongful act, tiff's son exercised a proper degree of by seeking to throw the responsibility care, and whether the engine was runon an agent whom he employs to do ning at a proper rate of speed, were all the act. The agent may, no doubt, be questions of fact for the jury, as they responsible, but the responsibility of were disputed. the principal is none the less. Judgment should be for plaintiff, and the rule discharged. Opinion by Cockburn, C. J.; Mellor and Field, JJ., concurring. RAILROAD COMPANY. AGES. There were some obstructions near the crossing which interrupted the view of any one approaching. The young man killed was driving a horse. He stopped a short distance before he reached the crossing, looked both ways, DAM- and listened, and saw nothing, and started on to the track. The engine had passed the crossing, had gone up about 300 feet, was switched on to another track, and started immediately back again, struck plaintiff's son and killed him. N. Y. SUPREME COURT. GEN'L TERM. Zimmer, adın'r, respt., v. N. Y. C. & Decided April, 1876. Liability for damages. Evidence that defendant had been accustomed to keep a flagman at a crossing, although incompetent, must be objected to, or it can properly be considered by the jury. On the trial evidence was received without objection that it was customary for defendant to keep a flagman at the Hudson Street crossing. There was no flagman at the time of the accident. there was allowed to the head of a family, as a homestead, exempt from execution, fifty acres of land, and five acres for each of his children under sixteen years of age. Held, That the e idence warranted debt due to petitioner was contracted, the finding of the jury; that a railroad and which remained in force until the company is bound to use more care and adoption of the constitution of 1868, cantion in crossing a street in a crowded city than in crossing a country road; that although the evidence of the custom of defendant to keep a flagman at the crossing was incompetent, it having been received without objection, was properly considered by the jury. Opinion by Smith, J. CONSTI UTIONAL LAW. BANK- By the constitution of 1868, and by an act of the Legislature, passed October 3d, 1868, to carry the constitutional provision into effect, there was allowed to the head of a family a homestead of realty, exempt from execution, of the U. S. CIRCUIT COURT-NORTHERN DIS- value of $2,000 (in specie.) In re Smith. The judgmeut of the petitioner against the bankrupt was duly proven and allowed as a debt against his estate On A bankrupt law which adopts the exemption from execution prescribed prior to the 30th of June, 1874. by the laws of the several States is that day, the assignee in bankrupter uniform, and therefore constitu- set off to the bankrupt his homestead, tional, as far as such exemptions are according to the provisions of the act concerned. of 1864, namely: ninety acres of land, In passing upon the constitutionality that being fifty acres and five acres in of an act of Congress, all the pre-addition thereto for each child of the sumptions are in favor of the law, able. and courts will not pronounce it un- bankrupt under sixteen years of age. constitutional unless its incompati- The bankrupt claimed that he was enbility is clear, decided and inevit-titled to have assigned to him the homestead allowed by the constitution of This is a petition filed to reverse a 1868, and the act of October 31, 1868, decree of the district coart in bank- to wit: realty to the value of $2,000 ruptcy. (in specie.), He therefore filed with John W. A. Smith was adjudged a the register his objections to the assignbankrupt by the District court in the ment made by the assignee. The reg Northern District of Georgia, on the ister referred the question thus raised. 3d day of June, A. D. 1873. At the with his opinion thereon, sustaining the date of the adjudication the petitioner objections of the bankrupt against the was the judgment-creditor of the bank-assignment, to the district judge, who rupt in the sum of $. The judg- also sustained the objections of the ment bore date prior to the 21st day of bankrupt, and held that he was entiJuly, 1868, when the present constitu- tled to have his homestead set off, tion of Georgia went into effect, and was a lien upon the real estate of the bankrupt. By an act passed prior to and in force in 1864, and in force when the under the provisions of the act of October 3d, 1868, notwithstanding the fact that the debt of the objecting creditor was contracted and the judgment therefor a lien upon the realty of the bank rupt, before the change in the home 1, Sec. 10), and were, therefore, null stead law. To review and reverse this decrce of the district judge, is the purpose of the petition. and void. The same decision had, in effect, been previously made by the Supreme Court of the United States in the case of Gunn v. Barry, 15 Wallace, Woods, Cir. J. The case turns upon 610. It follows from this state of the the constitutionality of the act of Con- law, as declared by the courts, that gress approved March 3, 1873, entitled when the assignee undertook to set off "An act to declare the true intent the homestead of the bankrupt on the and meaning of the act approved June 30th of June, 1873, he was not author8, 1872, amendatory of the general ized to set apart, as against Whitefield's bankrupt law." 17 Statute, 577, Rev. administrator, any greater amount of Statute, section 4045. This statute realty than was authorized by the act enacts, "that the exemptions allowed of 1864, except as he had derived his the bankrupt ** shall be the authority from the act of Congress of amonnt allowed by the constitution and March 3, 1873, above cited. In other laws of each State, respectively, as words, there was no valid and operative existing in the year 1871, and that such State law by which the bankrupt could exemptions be valid against debts con- claim that he was entitled to a hometacted before the adoption and passage stead of the value of $2,000 (in specie) of such State constitution and laws, as as prescribed by the constitution and well as those contracted after the same, law of 1868. and against liens by judgment or decrees of any State court, any decision of any such court rendered since the adoption and passage of such constitution and laws to the contrary notwithstanding." To put the question clearly in view it must be stated that after the adoption of the constitution of 1868, and the passage of the act of October 3, 1368, to carry the exemptions provided for by the constitution into effect, the Supreme Court of Georgia at its January term, 1873, in the case of Jones v. Brandon, 42 Ga., 593, decided that the provisions of the constitution and of the law, as far as they increased the exemption of property from execution, as against debts contracted before their adoption, was in conflict with that provision of the United States which declares "No State shall * pass any law impairing the obligation of contracts (Constitution of the U. S., Art. * * * The question, therefore, whether the act of Congress, March 3, 1873, is constitutional, is vital to the decision of this case. The objection to this act is not that it impairs the obligation of contracts, for Cong ess is not prohibited by the constitution from passing such a law. Erans v. Eaton, Peters C. C., 328; Sallerbe v. Matthewson, 2 Peters, 330; Bloomer v. Stalley, 5 McLean, 158. Besides, the power expressly given to Congress "to establish uniform laws on the subject of bankruptcies throughout the United States," implies the power to impair the obli ation of contracts. Stephens v. Griswold, Wall. 603; The Legal Tender Cases, 12 Wall, 457. The ground of objection is that the law is not uniform as required by the constitution of the United States. In my judgment, a bankrupt law which adopts the exemption from excention prescribed by the laws of the several by laws of the State, shall have effect under the bankrupt act. I think this sufficiently meets the requirement of States is uniform so far as such exemp- they existed in 1864. So, if the origintions are concerned. The exemptions al act was uniform, the amendment of may differ widely in different States, of 1873 must be uniform. but such an act would apply a uniform Congress has undertaken to say that rule, namely, to subject to the payment all exemptions in force at a certain date of the bankrupt's debts all his property not exempted by the laws of the State wherein he resided. Upon this ground the orignal provision of the bankrupt uniformity, and that to make the law law, which adopted the State exemp- uniform it was not necessary to enact tion laws in force in 1864, was declared that the bankrupt act should follow the to be uniform. In re Beckerford, 1 Dil- shifting legislation of the States on the lon, 45. subject of exemptions, or the decisions of the State courts. But it is said that the act of 1873 does not adopt the exemption laws as Thus the bankrupt act of 1867 conthey exist in the states, but gives effect tinued the exemptions that were in to all those which were upon the stat- force in Georgia in 1864, although ute books of the States in 1871, even those exemptions had been repealed though some of them may have been and new ones established by the act of declared unconstitutional, invalid and October 3, 1868. inoperative by the State courts; that the operation of the act of Congress is therefore not uniform, because in some States the exemption allowed by the State laws is followed, while in others bankrupt act. That would clearly be exemptions are permitted which the State laws, as interpreted by the courts, do not allow. Suppose the bankrupt act of 1867 had declared that all exemptions by the State law in force at the date of its passage should have effect under the a uniform enactment. Would it cease to be such and become unconstitutional merely because the legislature of a The same objection would apply to State had, at a subsequent time, amendthe original bankrupt act of 1867. That ed its exemption laws, or the courts of declared that the exemptions allowed another State had declared its exemp by the State laws in force in 1864 tion laws upconstitutional? I think it should be allowed under the bankrupt would not. In other words, I think act. The constitutionality of this pro- Congress may adopt the State laws on vision has never been declared, and yet, the statute books of the State, at a parbefore the 3d of March, 1867, the date ticular date, in reference to exemptions, of the bankrupt act, many of the States and that the legislation is uniform, almight have altered, amended or re- though the laws in some of the States pealed the exemption laws which were may afterwards be repealed by the leg. in force in 1864. Doubtless many of islature or declared null by the courts. them did so before the passage of the I am advised that a different view act of 1873. Yet the bankrupt act of the subject has been taken by the of 1867 undertook to give effect, not United States Circuit Court for the to the exemption laws as they existed Eastern District of Virginia, in re at its passage, and as they might be Deckert 1 American Law Times and thereafter altered or amended, but as Reports, 326, in which case the Chief Justice of the Supreme Court pronounced the opinion. But, in passing upon the constitutionality of an act of Congress, all the presumptions are in favor of the law. While, therefor, disposed to yield great weight to this authority, I cannot forget that in the opinion of the Congress of the United States this law is constitutional, and that the highest judicial authority has said that the courts ought not to pronounce a law unconstitutional unless its incompatibility be clear, decided and inevitable. Fletcher v. Peck, 6 Cranch, 87; Dartmouth College v. Woodward, 4 Wheat, 625; Livingston v. Morse, 7 Peters, 663. co-partners, doing business ir. Oswego. The firm failed and plaintif sued for an account against said firm. Plaintiff obtained judgme it against Elliot, but judgment was rendered against him in favor of Trow bridge & Jennings, on the ground of their infancy. The concern after this went into the hands of a receiver. Plaintiff's claim against the partnership property was contested on the ground that having obtained judgment against only one member of the firm, his judgment was not against the firm, and he could only look to the individual property of Elliot. While I admit that the argument The Special Terin took this view of against the constitutionality of this act the case, and made an order that the is plausible and persuasive, yet I can- judgment of plaintiff, in which case not say that it is entirely convincing; judgments were also rendered in favor it does not make the unconstitutionality of Trowbridge & Jennings, on the of the act clear, decided and inevitable. ground of infancy, be considered the Resolving doubts, therefore, in favor individual debt of Elliot. of the law, I must decline to declare it unconstitutional, and I must affirm the decree of the district court. PARTNERSHIP. Held, That partnership property must be applied to the payment of partnership debts; that when the minors succeeded in establishing their defense they relieved themselves and their individual property from the judgment of N. Y. SUPREME COURT. GEN'L TERM, such debts, but the adult partner, and FOURTH DEPARTMENT. the partnership property remained lia Whittemore, respt., v. Elliot et al., ble for such debts. As the avails in applts. the hands of the receiver are from personal property, creditors are to share in such funds pro rata, and not according the date of their judgment, as if it arose from the sale of real estate. Un Decided April, 1876. Partnership debts must be first paid out of partnership property, and when creditors obtain judgment against one member of a firm, and til T. & J. were released from the judgment is rendered against the partnership agreement their interest in "creditor, in favor of other members the property was in equity chargeable of the firm on ground of infancy, with the partnership debts. such creditor is still entitled to be paid out of partnership property. Appeal from an order. Elliot, Trowbridge & Jennings were Order reversed. Opinion by Mullin, P. J. |