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 provisions 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 Maryland 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. Bollinger and the business upon which she proposed to enter

with the aid of the property bought by her that their undertaking 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.

HUSBAND 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: Evans 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, 15 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. Dec. 688.

2

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 admissible 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 instructions concerning its use, and such instructions were not given.

MASTER AND Servant-NegLIGENCE-MEASURE OF DAMAGES-EARNINGS. In an action by a father to recover for personal injury to his minor son caused by negligence it is error to charge the jury, without evidence, that such son was likely to earn more than his present wages in the near future "by way of promotion."

TRESPASS by a father to recover damages for personal injury to his son. Such son, seventeen years of age, was injured while working at a candy rolling machine in defendant's factory. Such machine was fitted with a safety guard invented by the defendant, but such guard was not in general use in other similar factories. The defendant, after working the machine the day of the accident, took off the guard about 7 o'clock, and directed the boy to go on with the work; this he did, and worked about four hours before he was injured. Judgment for the plaintiff, and defendant appealed.

H. M. North and E. D. North, for the appellant.

B. F. Eshleman and G. Nauman, for the appellee.

257 MITCHELL, J. The evidence of the general use of the machines throughout the trade, without guards (assignments 10 to 16 inclusive), should have been admitted. In all actions for negligence it is important that the jury should be informed explicitly just what the negligence consists in. The average untrained mind is apt to take the fact of injury as sufficient evidence of negligence. Moreover, the use of a dangerous. machine is very commonly considered ground for holding the employer responsible, whereas the test of liability is not danger, but negligence, and negligence can never be imputed from the employment of methods or machinery in general use in the business: Titus v. Bradford etc. R. R. Co., 136 Pa. St. 618; 20 Am. St. Rep. 944; Kehler v. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep. 633. It is true that the general custom would not be conclusive of this case, under its peculiar circumstances to be noticed next, but it was the starting point in the defense, and the defendant was entitled to show it affirmatively so as to impress it on the jury's mind. Moreover, the evidence offered in the fifteenth assignment of error, to show that the same kind of machines were used without guards in another factory where plaintiff's son had previously worked, bore directly on the only point in the case on which the defendant's negligence could be rested. This was that if plaintiff's son had only been accustomed to the machine with the guard, and might be liable from force of habit, or

ignorance of the increased danger when the guard was removed, to push his fingers too close to the rolls and thereby get them caught, he would have been entitled to special 258 instruction as to this danger. As to what conversation or orders took place between the boy and his employer on this point the evidence was conflicting. The case therefore could not have been taken from the jury, but the defendant was entitled to have explicit directions that the use of the machine without a guard being the ordinary habit of the trade was not negligence prima facie, and would only become so if the boy's inexperience was such that he ought to have had special instructions when the change was made. The learned judge not only failed to give the defendant the benefit of the general rule in his charge, but excluded the evidence which would have put the facts before the jury.

There was error also in the charge as to damages. The boy was earning two dollars and a half a week. If it was claimed that he was likely to earn more in the near future the plaintiff should have proved the fact as part of his case, but the learned judge, without any evidence on the subject, threw in a suggestion that the boy might get more "by way of promotion." The verdict was in favor of the father for more than double the boy's gross wages until he should reach twentyone. We cannot say that this suggestion as to promotion may not have contributed to this result.

The learned judge appears in the opening of his charge to have read the plaintiff's statement to the jury, including the averment of damages. This is exceedingly bad practice. It tends to get figures and amounts into the jury's mind without evidence. Here again the verdict is suggestive, for it is for one thousand dollars, the exact amount of the technical ad damnum clause in the statement.

Judgment reversed and venire de novo awarded.

MASTER AND SERVANT.-THE TEST OF THE LIABILITY OF A MASTER to his servant is negligence, not danger: Kehler v. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep. 633, and note, with the cases collected.

MASTER AND SERVANT-MACHINERY IN GENERAL USE.-The unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business: Titus v. Bradford etc. R. R. Co., 136 Pa. St. 618; 20 Am. St. Rep. 944, and note. When the machinery furnished by a master for the use of his servant is of the kind in common use for the same purpose the master is justified in using it, and will not be liable for an injury caused thereby unless he has information or reason to believe that its use is attended