bad for truth and veracity, that no credit should be given to his testimony. On this preliminary examination can he be allowed to do it? The commissioner, for the purposes of this hearing, has only the power and authority of a committing magistrate, and his proceeding must be "agreeably to the usual mode of process against offenders" in this state: Act of Congress 24th Sept., 1789, sec. 33, and of 23d August, 1842, sec. 1, Brightly U. S. Dig. 90-91, § 1-2. It therefore becomes necessary to inquire what are the powers of a committing magistrate in Pennsylvania. These are not very well defined, as questions of this kind cannot reach the Court of last resort for review, and the authorities upon the subject are to be gathered from the practice of magistrates and loose dicta of judges, carelessly made upon examinations on habeas corpus, where defendants are brought before them to be bailed, and are imperfectly reported. Magistrates have not authority to try the fact. That can only be done by a jury. The defendant cannot be deprived of a trial by jury by any process or mode of proceeding in a criminal charge, be it ever so trivial, except in surety of the peace; and this is only quasi criminal-only holding a defendant to bail that he shall be of good behavior in future, and not to punish him for what he has already done. The utmost stretch of the magistrate's authority is only to determine that a grand jury shall investigate the charge. This restriction of the power of the magistrate is for the benefit of the defendant. If there is not probable cause, he is not even subjected to the ordeal of an investigation by a grand jury. The Commonwealth also has rights. If the evidence shows probable cause, she has the right to require trial by jury. She may demand that the alleged offence shall be investigated by a tribunal having authority to try the fact of guilt or innocence of the defendant: Vaux's Dec. 28. The determination of the main fact may involve, as in this case, the question of credibility of witnesses. This becomes then an important fact, and inasmuch as a fact can only be tried by a jury, we think a committing magistrate has no authority to entertain evidence on the subject, or to determine the fact of credibility, except from the character of the testimony of the witness itself, or from the conflicting evidence of the prosecution.

The proposition in this case is not to explain, but to impeach the main witness for the United States by extrinsic testimony of his bad character for truth and veracity. This certainly involves the finding of such a fact by the commissioner as we think a jury only can try; a fact of importance in many criminal as well as civil cases, to be determined by the country and not by the Court. A Court determines the competency but a jury tries the credibility of a witness. This issue is one raised by the defendant, and the prosecution claim that it shall be submitted to a jury for determination. The commissioner has authority to

determine whether there is probable cause to hold the defendant, and this is the extent of his power, and if held he goes to the jury to have the fact determined.

On this preliminary hearing the defendant says, that the prosecutor's witness is not worthy of credit, and thus raises an issue that is not to be determined by probable cause, a fact upon the determination of which this prosecution stands or falls. The commissioner has only authority to determine probable cause as to the guilt or innocence of the defendant, and not the probable or improbable credibility of the testimony of the prosecution, from extrinsic evidence. This involves deliberation, comparison and consideration to find and determine a collateral fact. The evidence is positive as to the commission of the offence. The only result of the evidence proposed by the defendant, is to create a doubt, and throw upon the commissioner the performance of a duty that can only be performed by a court and jury. When the evidence proposed to be offered by the defendant is of that positive, demonstrative, absolute and convincing character that no doubt or deliberation can be left on the mind; when it shows that the defendant could not have committed the offence without the reversal of nature's laws, the annihilation of time and space, or that the facts are such that the offence could not possibly have been committed; then the evidence may be heard, but I apprehend in no other case, or for any purpose except to aid the commissioner in fixing the amount of bail. For example, a larceny is charged to have been committed in Erie, and the proof offered is that the defendant at the moment of time was in New Orleans; or a homicide to have been perpetrated, and the proof

offered is that the alleged murdered man is actually alive, these and the like cases relieve the mind from all doubt and deliberation; are absolute and convincing, and the evidence should be heard. In examinations before a committing magistrate if there be doubt the Commonwealth has the benefit of it, and the defendant is to be held to answer. Not so in trials by jury; for there the prisoner has the benefit of all reasonable doubts.

For the reasons stated the evidence offered by the defendant to impeach the prosecuting witness is rejected, and the defendant directed to enter into recognisance to answer, &c.

In the District Court of Allegheny County.

CONROY'S ADMINISTRATORS v. PENNSYLVANIA RAILROAD Co.

(Vol. VI., p. 49, 1858.)

1. The Act of Assembly of 15th of April, 1851, allowing the personal representatives of a deceased party to prosecute suit for injuries to the person by negligence or default, is not repealed by the Act of 26th of April, 1855, so far as to affect proceedings under it before the passage of the latter act. 2. A husband suing under the Act of April, 1851, as the administrator of his wife, for the injuries to her person, resulting in death, may amend his narr. in accordance with the provisions of the second section of the Act of April, 1855. The fact of describing him as her administrator would not vitiate the writ, but would be treated as mere surplusage.

3. Those intrusted with the management of a railroad are bound to exercise the utmost care, skill and diligence in relation to their passengers and the property committed to their charge. But they are only responsible for the direct and immediate consequences of errors committed by themselves. 4. Where it can be shown that an injury would not have happened except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained.

THE opinion of the Court details the material facts of the case. It was tried by Penny & Sterrett for plaintiff, and by W. A. Stokes for defendant.

The charge of the Court was delivered by

HAMPTON, P. J.-The plaintiff, with his wife and two children,

took passage on the emigrant train, on the defendant's road, from Philadelphia to Pittsburgh, in April, 1854. They arrived at Altoona on Sunday morning, when the train was placed on the side track, as shown by the diagram exhibited to the jury, where it remained until about noon the next day, when it was dropped down to its place for starting west. The Hollidaysburg train came up on the branch road from that place, on time, as it is alleged, and after entering upon the main track, backed up the same past the emigrant train, at some distance from it; and at the moment the plaintiff's wife, who had left the latter train but a few minutes before, was crossing or walking along the main track, she was knocked down by the backing train and instantly killed. John Conroy, her administrator, now brings this action to recover damages for the alleged negligence of the defendants, under the provisions of the Act of 15th April, 1851: Dunlop 1145.

The plaintiff's counsel contend that the defendants, by their officers, were guilty of such negligence in the management of the backing train, as will render them liable in this action.

The defendant's counsel take defence on three grounds. First, that the plaintiff cannot recover as administrator of the deceased; because, as they allege, the Act of 15th April, 1851, was virtually repealed by the Act of 26th April, 1855. And second, that the death of the plaintiff's wife was not caused by any negligence on their part, but by the want of proper care and caution on her part. And third, that if there were any negligence or want of care on their part, yet that she was guilty of negligence also, which would prevent a recovery in this case.

First, then, as to the repeal of the Act of 1851, which embraces the first ground of defence. This injury occurred in April, 1855, and the present action was brought to July Term of that year. Under the provisions of that act, at the time this suit was instituted, the plaintiff had a right to sue as administrator of his wife, and the only question is whether that right was taken away by the Act of April, 1855. The Act of 1851, is not repealed in express terms, nor do I think it is so by implication, so as to affect proceedings commenced under it, before the passage of the latter act. The intention of the legislature in passing the Act of 1855,

seems to have been merely to limit the right of action to the husband or widow, children or parents of the deceased, and consequently to prevent the damages that might be recovered, from distribution among creditors. But if this were not so, the plaintiff would be allowed to amend his narr. in accordance with the provisions of the second section of the Act of April, 1855; and as the plaintiff would have the right, under the first section of this act, to sue as the husband of the deceased, the fact of describing him as her administrator, would not vitiate the writ, but would be treated as surplusage. This has been repeatedly ruled in Pennsylvania and elsewhere. This ground of defence, then, is not available.

The second and third grounds of defence go to the merits of the case, and if sustained by the evidence must defeat a recovery in this action.

This branch of the case raises two questions. First, was the deceased guilty of any degree of negligence which contributed to the injury complained of? If so, the plaintiff cannot recover, no matter whether the defendants were guilty of negligence or not. But if there was no such negligence on her part, then second, was her death caused by any culpable negligence on the part of the defendants? If so, the plaintiff will be entitled to recover. But if there was no such negligence, then the defendants are not responsible, and the plaintiff will not be entitled to recover.

What constitutes culpable negligence in any particular case, must always depend upon the facts and circumstances attending the act or injury complained of, so that no invariable rule can be laid down which will be applicable to every case; but some general rules may be stated which will enable the jury to arrive at a correct conclusion in determining the facts disclosed by the evidence. There are usually considered three degrees of negligence, viz: gross, ordinary and slight. Gross negligence consists in the omission of that care which even inattentive and thoughtless men never fail to take of their own property. Ordinary neglect is the want of that diligence which the generality of mankind use in their own concerns, that is, of ordinary care. Slight neglect is the omission of that care which very attentive and vigilant persons