Simpson v. The State. SIMPSON V. THE STATE. WITNESS.-Child under Ten Years.-Competency.—Examination.-Where the competency of a child under ten years of age as a witness is challenged, the decision of the court must be founded on the judge's own opinion derived exclusively from an examination made by him in public as a part of the trial. SAME.-Criminal Law.—New Trial.—On the trial of an indictment for a rape, the prosecuting witness was a child only six years old at the time of the trial, sixteen months after the alleged offense. The competency of the witness being challenged, the court examined her, and, not being satisfied, appointed two gentlemen who retired with the child to a private room, and, after some time, returned and reported to the court, that, "in their opinion, her testimony ought to be heard, but received with great allowance;" whereupon she was allowed to testify over the defendant's objection. Held, that for this action of the court the defendant was entitled to a new trial. Held, also, that the court should have acted on its own judgment, upon a public examination when the defendant was present. Held, also, that courts should be very cautious in admitting as witnesses children of such tender years. APPEAL from the Greene Circuit Court. FRAZER, J.-This was an indictment for a rape. There was a conviction upon a plea of not guilty. The only error assigned is the overruling of a motion for a new trial. The prosecuting witness was a child only six years old at the time of the trial. The offense charged occurred some sixteen months before. The competency of the witness being challenged, the court examined her, and, not being satisfied, appointed two gentlemen who retired with the child to a private room, and, after some time, returned and reported to the court, that, "in their opinion, her testimony ought to be heard, but received with great allowance;" whereupon she was allowed to testify over the defendant's objection. This action cannot be sustained. The court should have acted on its own judgment upon a public examination when the defendant was present. Prima facie, the child was incompetent and could not testify. The court might, however, examine her, and upon such examination develop Simpson v. The State. ing sufficient intelligence might, from the facts thus elicited, determine upon her competency and allow her to testify. 2 G. & H. 169, sec. 239. This determination is judicial; the examination is a part of the trial, must be public, and must be made by the court. The decision must be founded upon the opinion of the judge from the examination which he makes. It cannot be referred to somebody else to do this; nor can the judge be guided by the opinion of such referee; but he must act upon his own opinion. In the case before us, the only fair interpretation of the record is, that the judge was not satisfied from his own examination that the witness was competent, and that his decision was therefore influenced, to some extent at least, by the opinion of those whom he had appointed to examine the child. That opinion should not have been taken, and should, when taken, have had no influence. If we could say that the court decided the question exclusively upon the facts clicited by its own examination, possibly we could not reverse the cause on account of its decision; for some members of the court would be in doubt, making allowance for the better opportunities of the judge below who had the child personally present and might justly gain impressions as to her intelligence, as well by her appearance and manners as by the words of her answers to him. But such was not the fact; and we must therefore order a new trial. The interests of justice undoubtedly require that the courts should be very cautious in admitting as witnesses children of such tender years. Judgment reversed, and new trial ordered. E. E. Rose and E. H. C. Cavins, for appellant. D. E. Williamson, Attorney General, for the State. Kantrowitz and Another v. Prather and Wife. KANTROWITZ and Another v. PRATHER and Wife. MARRIED WOMAN.-Separate Real Estate.-Contract.—In this State, in order to enforce the contract of a married woman against her separate real estate, her intent to deal with the property must appear, and may not be assumed, and the contract must be one from which benefit results to the property. SAME.-Profits of Real Estate.-So far as the profits of a married woman's real estate are concerned, effect will be given to her contract where she has indicated her purpose to deal with such profits. SAME.-Protecting Supervision of Chancery.-It must appear that any contract relating to the property of a married woman, which it is sought to enforce in cquity, is conscionable, and where it relates to the betterment of her real estate, that it is reasonably calculated to promote that end. SAME.-Intent. The fact that credit for goods sold to a married woman is given her upon the faith of her separate property, is not sufficient to create a charge against her land or its income; she must also herself intend to contract with regard to her separate estate. APPEAL from the Bartholomew Common Pleas. RAY, J.-Suit by the appellants against the appellees. The complaint is as follows: "The plaintiffs, Jacob Kantrowitz and Nathan Kantrowitz, partners, trading under the firm name and style of Kantrowitz & Co., complain of Hannah Prather, defendant herein, and say that said defendant is now, and has been continually for four years last past, the wife of her co-defendant, Allen W. Prather, who is also made party hereto; that said Hannah is now, and has been continually for the four years last past, seized in her own right and for her sole use and benefit, of lot No. 32, in Sims and Findley's addition to the city of Columbus, in said county, of the value of four thousand dollars; and that the said Hannah is indebted to plaintiff's in the sum of $386.45, for necessary goods, wares, and merchandise sold and delivered by said plaintiffs, as said firm, to said defendant Hannah, at her special instance and request, a bill of particulars of which is filed herewith, and made part hereof. The said goods were sold and credit given to said Hannah on the faith of her said separate property, and not otherwise; the payment of which said indebtedness is a charge upon the separate Kantrowitz and Another v. Prather and Wife. property of said Hannah. Said indebtedness is due and unpaid. The articles furnished by plaintiffs to defendant were articles suitable to a person in her station in life; and the credit was given to her exclusively, her husband having no property subject to execution at or during the time the articles were being furnished. Wherefore plaintiffs pray the court for a finding of the amount due from said wife to them, and a decree charging her said separate property with the payment thereof, with costs, and also a decree and order directing her said separate property to be sold to satisfy said. finding and costs; or, if more consistent with equity, to order the rents thereof to be applied; and all other proper relief." The bill of particulars filed with the complaint shows that the goods furnished the wife were mainly female wearing apparel. The defendants demurred jointly and separately to the complaint: 1. That the court had no jurisdiction of the subject matter of the action. 2. The improper joinder of said IIannah and her said. husband as defendants. 3. That the complaint did not state facts sufficient to constitute a cause of action. The court below sustained the demurrers as to the third cause, and overruled them as to the first and second. Final judgment on demurrer for the appellees. The opinion of Lord ROMILLY, M. R., in the case of Shattock v. Shattock, Law R. 2, Eq. 182, states the rule in equity as to the power of a married woman to deal with reference to her separate estate, where there are no restrictions upon. its alienation: "The principle of the courts of equity relating to this subject, in my opinion is, that, as regards her separate estate, a married woman is a feme sole and can act as such; but only so far as is consistent with the other principle, namely, that a married woman cannot enter into a contract. These principles are reconciled in this way. Equity attaches to the Kantrowitz and Another v. Prather and Wife. separate estate of the married woman a quality incidental to that property, viz., a capacity of being disposed of by her; in other words, it gives her a power of dealing with that property as she may think fit; but the power of disposition is confined to that property, and the property must be the subject matter that she deals with; and, therefore, if she makes a contract, the contract is nothing unless it has reference, directly or indirectly, to that property. This is, in my opinion, the extent of the doctrine of equity relating to the separate estate of a married woman. It is on this principle that every bond, promissory note, and promise to pay, given by a married woman, has, for the reason I have already stated, been held to be a charge made by her on her separate estate; that is to say, it is a disposal of so much of her property, the whole of which, if she pleased, she might give away. But if equity goes beyond this, it appears to me that it is laying down this principle, that where a married woman has separate estate she may bind herself by contract exactly as if a feme sole; or, in other words, that the possession of separate property takes away the distinction. between a feme covert and a feme sole, and makes them equally able to contract debts. It is clear that this implication of a charge cannot exist in the mere case of simple contract debts. without one word said or written to show that the separate property is to be bound." After reviewing the case of Johnson v. Gallagher, 30 L. J. (Ch.) 298, and the case of Hulme v. Tenant, 1 Bro. C. C. 16, and alluding to the fact that on the first occasion Lord THURLOW in Hulme v. Tenant stated as the proper rule, "that a feme covert acting with respect to her separate property is competent to act in all respects as if she were a feme sole," and that on the second occasion the reporter, Mr. Brown, was not present, but reports ex relatione and very shortly, and thus reporting, states Lord THURLOW as laying down the broad doctrine, "that the separate estates of married women are liable for their general engagements," though the decree rendered is not consistent with this broad doctrine; Lord ROMILLY then |