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exempt from liability for injury result Appeal from judgment and from oring from negligence which he had no der denying a new trial. reason to anticipate, there is, on the This action was brought for damages other hand good ground for holding him for an injury to plaintiff's son, which liable for injury caused by an act cer- caused his death. tain to be attended with injurious con The place of the accident was in the sequences if such consequences are not city of Rochester, where the railroad in fact prevented, no matter through track crosses Hudson street. whose fault the omission to take the The engineer in charge of the loconecessary measures for such precaution motive causing the injury had just back

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.

There were some obstructions near Judgment should be for plaintiff, and the crossing which interrupted the view the rule discharged.

of any one approaching. The young Opinion by Cockburn, C. J.; Mellor man killed was driving a horse. He and Field, JI., concurring.

stopped a short distance before he

reached the crossing, looked both ways, RAILROAD COMPANY. DAM- and listened, and saw nothing, and AGES.

started on to the track. The engine N. Y. SUPREME COURT. GEN’Teru. had passed the crossing, had gone up FOURTH DEPARTMENT.

about 300 feet, was switched on to anZimmer, adın’r, respt., v. N. Y. C. & other track, and started immediately H. R. R.R. Co., applts.

back again, struck plaintiff's son and

killed him. Decided April, 1876.

On the trial evidence was received Liability for damages.

without objection that it was customary Evidence that defendant had been accustomed to keep a flagman at a

for defendant to keep a flagman at the crossing, although incompetent, must Hudson Street crossing. be objected to, or it can properly be There was no flagman at the time of considered by the jury.

the accident.

Hell, That the e idence warranted debt due to petitioner was contracte, 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 150S, cantion in crossing a street in a crowd- there was allowed to the head of a ed city than in crossing a country road; family, as a homestead, exempt from that although the evidence of the cus- execution, fifty acres of land, and tive tom of defendant to keep a flagman at acres for each of his children under the crossing was incompetent, it having sixteen years of age. been received without objection, was By the constitution of 1868, and by properly considered by the jury. an act of the Legislature, passed OctoOpinion by Smith, J.

ber 3d, 1868, to carry the constitutional

provision into effect, there was allowed CONSTI UTIONAL LAW. BANK- to the head of a family a homestead of

RUPT ACT OF 1873. realty, exempt from execution, of the U. S. Circuit Court-NORTHERN Dis- value of $2,000 (in specie.)

The judgmeut of the petitioner TRICT OF GEORGIA.

gainst the bankrupt was duly proven In 1e Smith.

and allowed as a debt arainst his estate A bankrupt law which adopts the cx; prior to the 30th of June. 187+. On

emption from execution prescribed by the lanes of the several States is

that day, the assignee in bankrupicy 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 úct of Congress, all the pre- addition thereto for each cliild of the sumptions are in favor of the law, 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 hoineable.

stead 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 court 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 inent inade by the assignee. The reyNorthern 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- ulso 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 under the provisions of the act of Octowas a lien upon the real estate of the ber 3d, 1868, notwithstanding the fact bankrupt.

that the debt of the objecting creditor By an act passed prior to and in its contracted and the judgment there. force in 18tit, and in force when the furin lien upon the realty of the banks

rupt, before the change in the home. 1, Sec. 10), and were, therefore, null stead law.

and void. The same decision had, in To review and reverse this decree of effect, been previously made by the the district judge, is the purpose of the Supreme Court of the United States in petition.

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 exemptious allowed of 1864, escept as he had derived his the bankrupt

shall be the authority from the act of Congress of amount 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 home. tracted 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 de The question, therefore, whether the crees of any State court, any decision act of Congress, March 3, 1873, is conof any such court rendered since the stitutional, is vital to the decision of adoption and passage of such constitu- this case. tion and laws to the contrary notwith The objection to this act is not that standing."

it impairs the obligation of contracts, To put the question clearly in view for Cong ess is not prohibited by the it must be stated that after the adop- constitution from passing such a law. tion of the constitution of 1868, and Erans v. Eaton, Peters C. C., 328; the passage of the act of October 3, Sallerbe v. Matthewson, 2 Peters, 330; 1368, to carry the exemptions provided Bloomer v. Stalley, 5 McLean, 158. for by the constitution into effect, the Besides, the power expressly given to Supreme Court of Georgia at its Jan-Congress • to establish uniform laws on uary term, 1873, in the case of Jones v. the subject of bankruptcius thronghout Brandon, 48 Ga., 593, decided that the the United States," implies the power provisions of the constitution and of to impair the obli ation of contracts. the law, as far as they increased the Stephens v. Griswold, Wall. 603; The exemption of property froin execution, Legal Tender Cases, 12 Wall, 457. as against debts contracted before their The ground of objection is that the adoption, was in conflict with that pro- law is not uniform as required by the vis on of the United States which de- constitution of the United States. In clares “ No State shall *

pass my judgment, bankrupt law which any law impairing the obligation of con- adopts the exemption from execution tracts (Constitution of the U. S., Art. prescribed by the laws of the severai

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 amendnient 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 by laws of the State, shall have effect not exempted by the laws of the State under the bankrupt act. I think this wherein he resided.' Upon this ground sufficiently meets the requirement of the orignal provision of the bankrupt uniformity, and that to make the law law, whicli 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 But it is said that the act of 1873 of the State courts. does rot 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 o: the States in 1871, (ven 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

Suppose the bankrupt act of 1867 the operation of the act of Congress is had declared that all exemptions by therefore not uniform, because in some the State law in force at the date of its States the exemption allowed by the passage should have effect under the State laws is followed, while in others bankrupt act. That would clearly be exemptions are permitted which the a uniform enactment.

a uniform enactment. Would it cease State laws, as interpreted by the courts, to be such and become unconstitutional do not allow.

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 exempby tie 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

on the

Justice of the Supreme Court pro- co-partners, doing business ir. Oswego. nounced the opinion. But, in passing The firm failed and plaintif sued for upon the constitutionality of an act of an account against said firm. Congress, all the presumptions are in Plaintiff obtained judgme it agairist favor of the law. While, therefor:, Elliot, but judgment was rendered disposed to yield great weight to this against him in favor of Trow bridge & authority, I cannot forget that in the Jennings, on the ground of their inopinion of the Congress of the United fancy. States this law is constitutional, and The concern after this went into the .that the highest judicial authority has hands of a receiver. said that the courts ought not to pro

Plaintiff's claim against the partnernounce a law unconstitutional unless ship property was contested its incompatibility be clear, decided ground that having obtained judgment and inevitable. Fletcher v. Peck, 6 against only one member of the firm, Cranch, 87; Dartmouth College v. his judgment was not against the firm, Woodward, 4 Wheat , 625; Livingston and he could only look to the individv. Morse, 7 Peters, 663.

ual property of Elliot. While I admit that the argument

The Special Terın 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 Hid, That partnership property unconstitutional, and I must affirm the must be applied to the payment of partdecree of the district court.

nership debts; that when the minors succeeded in establishing their defense

they relieved themselves and their inPARTNERSHIP.

dividual property from the judgment of X. Y. SUPREME Court. GEN’L TERM, such debts, but the adult partner, and FOURTH DEPARTMENT.

the partnership property remained liaWhittemore, respt., v. Elliot et al., ble for such debts. As the avails in

the hands of the receiver are from perapplts.

sonal property, creditors are to share in Decided April, 1876.

such funds pro rata, and not according Partnership debts must be first paid the date of their judgment, as if it out of partnership property, and

arose from the sale of real estate. Unwhen 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

Order reversed. paid out of partnership property.

Opinion by Mullin, P.J.
Appeal from an order.
Elliot, Trowbridge & Jennings were

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