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BOLLINGER V. GALLAGHER

(163 PENNSYLVANIA STATE, 245.) HUSBAND AND WIFE – MARRIED Woman's NOTE - RIGHTS OF HUSBAND'S

CREDITORS.-A statute authorizing married women to acquire property by purchase free from their husbands' debts and to give notes therefor, but only when their husbands join in their execution, cannot be con• strued, as matter of law, as clothing the husband with the title to property purchased solely on the credit of the wife, so as to render it liable for his sole debts, when the purchase price of the property is secured by a note signed by the wife, her husband and her sureties,

and paid by the wife and her sureties alone. LAWS OF ANOTHER STATE-PROOF OF CONSTRUCTION OF.-The construction

of a statute of another state may be shown by the testimony of a

lawyer practicing therein. LAWS OF ANOTHER STATE_PROOF OF CONSTRUCTION.—The construction of

a statute of another state by the courts of that state may be shown either by one familiar with or by the published reports of the decisions made by such courts or both methods may be used in the same case. Trespass for a wrongful levy upon personal property. Upon the trial, and after the court had admitted the statutes of another state in evidence to show what was the written law of that state in regard to the rights and capacities of married women, the plaintiff offered as a witness a practicing lawyer of that state, and proposed to prove by him the construction placed upon such statutes by the courts of that state. This offer was rejected by the court as incompetent. Judgment for the defendants, and plaintiff appealed.

H. C. Niles, W. F. B. Stewart, and G. E. Neff, for the appellant.

H. L. Fisher, G. G. Fisher, C. E. Ehrehart, and 0. L. Quinlan, for the appellees.

249 WILLIAMS, J. This case was in this court in 1891, and may be found reported in 144 Pa. St. 205. The principal questions then raised 250 were: 1. Whether the attachment proceedings begun by Johns, before P. S. Bowman, Esq., against George Bollinger, were sufficient to support a seizure and sale of Bollinger's goods; 2. Whether, if they were sufficient as against the defendant therein, the plaintiff, who was the wife of George Bollinger, was bound to show a title in herself good against her husband's creditors to entitle her to recover; and 3. Whether in the absence of proof to the contrary the laws of a sister state were to be presumed to be the same as

our own, upon any question material to the rights of the parties.

Upon these questions the judgment appealed from was reversed, and a new venire awarded. A new trial has now been had. The plaintiff submitted to the jury the facts upon which she claimed title to the goods sold, and, under the instructions of the learned judge of the court below, these facts have been found insufficient to vest in her a title good against her husband's creditors. The important questions now raised are over the correctness of the instructions complained of, and are presented by the eighth and ninth assignments of

error.

It appears that by the statutes of Maryland a married woman may acquire property by purchase, and, when so acquired, it is not liable for her husband's debts. She is authorized to give notes, but only when her husband joins in their execution. She may be sued jointly with her husband on such notes, and the judgments obtained against them “shall be liens on the property of the defendants, and may be collected by execution or attachment in the same manner as if the defendants were not husband and wife.” In 1886 and part of 1887 Bollinger and wife lived in Maryland. In October, 1887, the personal property of George Bollinger was sold by the sheriff of Carroll county. Eliza Jane Bollinger became a purchaser of property at this sale, amounting to seven hundred and forty-seven dollars and forty-five cents, under an arrangement that she was to pay for the same by giving her note, executed in accordance with the laws of Maryland, by herself and her husband, with Thomas J. Gorsuch and Jacob Bollinger as sureties. The husband was insolvent at the time, but his wife could execute a note that would bind her own property, only by his joining her in its execution. The sureties agreed with Mrs. Bollinger and the payee of the note that if she was not able to pay the note at its maturity they would pay it for her and take a bill of sale of the 251 property. When the note sell due she was able to pay but a small part of the money, and Mr. Gorsuch lent her the balance necessary to pay the note, and took a bill of sale as his security. This property, or portions of it, so bought and paid for, was levied on in Pennsylvania, by Gallagher at the suit of Johns, as the property of George Dollinger, and sold. Mrs. Bollinger gave notice of her claim,

which was disregarded, and, after the sale, brought this suit to recover the value of the property.

The plaintiff's first point asked the court to charge: “If the jury believe from the evidence that the goods were sold to the plaintiff not upon her husband's credit, but solely on the faith the vendors and those who became her sureties had in her integrity and ability to pay the debt, she was entitled to hold them against her husband's creditors." The learned judge replied: "This question does not properly arise on the evidence in this case because the plaintiffs have shown affirmatively that the husband's credit, or at least his legal responsibility, did enter as an element into her purchase of this property.” By the plaintiff's second point the court was asked to say that under the law of Maryland a married woman had the same right to acquire and hold property as if she was sole. This was answered in the same manner as the first point by saying that the point was not applicable to the case trying, for the reason “that the husband's credit or legal responsibility entered into her purchase.” If these answers give a correct exposition of the effect of sections 19 and 20 of the revised code of Maryland as adopted in 1878, then a married woman is no better off than she was before these sections were adopted. If she can give a note that shall bind her in but one way, and that way is by having her husband join her in its execution, then it follows from these answers that her note so given for goods purchased and actually paid for by her and her friends at its maturity does not give her any title to the goods so bought and paid for, but vests the title in her husband. This result is reached not because the husband bought the goods, nor because he paid for them, or any part of them, but because his “legal responsibility entered into the purchase.” That is to say, because the statute required him to join his wife in order to make her note binding on her in her own business, the fact that he did so made the business his own and clothed him with the title to the property she purchased with the note.

252 We do not think this construction of the statutory provisions referred to has been adopted by the courts of Maryland, or ought to be adopted on principle. It does not serve to uphold but to nullify the law. It converts provi. sions evidently intended to enlarge the powers of a married woman, and enable her to make purchase of property on her own account, into a conduit to transfer to her husband and

her husband's creditors the property so purchased by her. In this case that result is reached notwithstanding the fact that the note was actually paid by the wife and her friends without the contribution of a single dollar by the husband. The error of the learned judge was in treating the question of ownership as one of law for his determination instead of treating it as one of fact for the jury to consider and decide.

If the joinder of the husband in the note was necessary under the law of that state to enable his wife to make a valid note capable of enforcement against her, and if the purchase was in fact made by her with this note on her own credit and the credit of her sureties, and its payment was by her and her sureties without aid from her husband, then the jury would have been warranted in finding that the property purchased with it belonged to her, and that she was entitled to recover its value in this action. The joinder of the husband required explanation. It was explained by the Mary. land statute which made it necessary to enable his wife to bind herself by her note. The question of ownership was thereafter not a question of law, but a question of fact to be determined from all the circumstances connected with the transaction as they were presented by the evidence. The eighth and ninth assignments of error are sustained.

We think the third assignment must also be sustained. The construction of the statute of another state, by the courts of that state, may be shown either by one familiar with or by the published reports of the decisions made by such courts, or both methods may be used in the same case. The testimony of an expert may or may not be helpful, depending to some extent upon whether the precise question has arisen in some reported case and been finally passed upon; but the testimony offered was certainly competent, and it was error to reject it.

The rejection of the testimony referred to in the first and 253 second assignments of error was logical and consistent with the general view of the case entertained by the learned judge. If the manner of the execution of the note was conclusive upon the question of ownership, then the circumstances were unimportant. But treating the case as depending on its facts, then so much of the evidence offered as might be necessary to show for whom the sureties agreed to become liable, and that it was upon the credit of Mrs. Bol. linger and the business upon which she proposed to enter

with the aid of the property bought by her that their under taking was made, was competent and relevant. To this extent the first and second assignments of error are sustained.

The judgment is reversed and a venire facias de novo awarded.

HOSBAND AND WIFE-LIABILITY OF WIFE'S SEPARATE PROPERTY FOR HUSBAND'S DEBTS.-A wife's separate property is not liable for her hus. band's debts: Evuns v. Welborn, 74 Tex. 530; 15 Am. St. Rep. 858, and note; Botts v. Gooch, 97 Mo. 88; 10 Am. St. Rep. 286, and note. And the fact that the husband has had the management of the wife's separate estate will not affect her title to it so far as his creditors are concerned: Second Nat. Bank v. Merrill, 81 Wis. 151; 29 Am. St. Rep. 877. The separate property of the wife becomes subject to the debts of the husband only when he is permitted to deal with and obtain credit upon it as if it were his own with her full knowledge and consent: De Votie v. McGerr, 15 Col. 467; 22 Am. St. Rep. 426, and note.

FOREIGN LAWS-PROOF OF.—The laws of a foreign country are to be proved by evidence, and the court is to decide what is the proper evidence of such laws: De Sobry v. De Laistre, 2 Har. & J. 191; 3 Am. Dec. 535. A foreign law if written must be produced in evidence; if unwritten it must be proved by the testimony of disinterested and intelligent witnesses: Woodbridge v, Austin, 2 Tyler, 364; 4 Am. Dec. 740; Dougherty v. Snyder, 16 Serg. & R. 84; 16 Am. Dec. 520; Phillips v. Gregg, 10 Watts, 158; 36 Am. Dec. 158; Baltimore etc. R. R. Co. v. Glenn, 28 Md. 287; 92 Am. Deo. 688.

REESE V. HERSHEY.

(163 PENNSYLVANIA STATE, 253.) MASTER AND SERVANT-NEGLIGENCE-MACHINERY.-In an action by an

employee against his master to recover for personal injury, the test of liability is not danger, but negligence, which can never be imputed from the employment of methods or machinery in general use in the

business. MASTER AND SERVANT-NEGLIGENCE—EVIDENCE. –In an action by an em.

ployee against his master to recover for personal injury caused by the temporary removal of a safety guard of machinery, evidence is ad. missible to show that the same kind of machinery was used without guards in other factories where the employee had previously been employed, and that the guard in question was not in general use in the

business. MASTER AND SERVANT-NEGLIGENCE-MACHINERY.—The use of machinery

without a guard being the ordinary custom of the trade is not prima facie negligence on the part of the master in case of injury to the serv. ant, and can only become negligence if the servant's inexperience is such that he ought to have been given special instructious concerning its use, and such instructions were not given.

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