The Central Law Journal.

ST. LOUIS, OCTOBER 29, 1886.

CURRENT EVENTS.

THE HOUSE OF LORDS.-On another page of this number will be found an interesting speech of Lord Coleridge on the House of Lords. It is remarkable if read judiciously between the lines, as well as upon the face of the paper, as indicating the present, and presaging the future tendency of enlightened public opinion regarding the venerable fossil of which it treats. He advocates a reformed House of Lords, composed of men who shall sit there, because they are "sent there by some system of choice." This, notwithstanding his careful hedging, "speaking roughly and off-hand, and I pray you remember, after dinner," means, when interpreted and read between the lines, and subjected to due judicial construction, that Lord Coleridge thinks that the House of Lords as House of Lords has outlived its usefulness, but that a second legislative chamber is essential to good government. He thinks that the members of such a chamber should not be born, and "swathed and dandled into legislators." but should be "chosen," and should be responsible for the due performance of their duties to the authority by which they are "chosen." He does not say so, certainly, but choice implies responsibil ity of the chosen to the chooser, and responsibility implies a fixed and definite term of service. His allusion to the American Senate is, in this point of view, very significant. Such a chamber as Lord Coleridge indicates would be a very good senate, provided its members shall be chosen by the proper authority and in such a manner as to secure adequate representation of the interests of the whole kingdom. It would, however, be in no proper sense a House of Lords. It is of the very essence of that body that its hereditary legislators represent nobody but themselves, and no interest except their own, are responsible to no constituency, and are amenable to no authority.

Whether there is among the peers a sufficient number of suitable persons to form the Vol. 23.-No. 18.

new chamber is an immaterial issue, for there are plenty of such persons outside of that charmed circle.

Any reform, any change worthy of the name, carried into effect in the spirit of Lord Coleridge's suggestions, must needs include three fundamental conditions: First, that the new legislators shall be "chosen and sent" by a body or bodies of persons who represent the interests of the whole kingdom. Second, that the choosing and sending bodies shall have full and free choice of the members from all classes of society, untrammelled by any relics of feudalism. Third, that the members so sent shall act under a proper sense of responsibility to their constituency, holding office for a definite, or at least, a terminable period, and amenable to all the impulses of ah enlightened public opinion. The existing House of Lords is manifestly an excrescence; for more than half a century its only political function has been, alternately to obstruct and succumb, and for that period England has had really but one legislative body. If it is expedient to have two, as is the received modern opinion, the new one must be created, but before that can be done a graver problem than is generally supposed will confront the innovators. The House of Lords must be abolished before the new chamber can be created, and if the great statesman to whom Lord Coleridge alludes, after having thought three times about abolishing the House of Lords, shall have finally resolved to do it, he will find before him an herculean undertaking.

As the House of Lords is an integral part of Parliament, its extinction can only be effected by revolution and re-construction, or by an act of Parliament, in assenting to which, that historic body would commit political suicide, decree its own dissolution and admit in the most solemn manner, that it is no longer worthy to bear more than a nominal part in the legislation of a great empire. That English peers could voluntarily do this is incredible; that they could be bribed or bullied into an act which to all the world would seem to be one of personal dishonor is equally impossible. What then remains except by the royal prerogative to fill the house with a sufficient number of new peers, who accept rank for a day only for the

purpose of dragging down to their own level those whose ancestors and predecessors have held that rank for centuries. Before any Statesman worthy of the name will (unless in the direst emergency) resort to such a measure for such a purpose, he will think, not three times, but three hundred times. The House of Lords may be undermined in the course of time by the steady growth of public opinion of which Lord Coleridge's speech is one of the most notable indicia, but most probably it will endure as long as any of the present elements of the English constitution.

NOTES OF RECENT DECISIONS.

NEGLIGENCE CONTRIBUTORY AND IMPUTED NEGLIGENCE-MASTER AND SERVANT-PASSENGER IN PRIVATE CARRIAGE.-On the 1st of October, 1886, the Supreme Court of Minnesotą took a new departure on the subject of

whose negligence had caused the disaster, the court held that the negligence of the driver of the omnibus must be imputed to the passenger, plaintiff's intestate, because he "identified himself" with the driver by voluntarily becoming a passenger. In a later English case, the court, Pollock, B., following Thoroughgood v. Bryan, comments on the language used in that case thus: "If it is to be taken that by the word 'identified' is meant that the plaintiff, by some conduct of his own, as by selecting the omnibus in which he was traveling, has acted so as to make the driver his agent, that would sound like a strange proposition, which could not be entirely sustained. But what I understand it to mean is that the plaintiff, for the purpose of the action, must be taken to be in the same position as the owner of the omnibus, or his driver.” In a Wisconsin case, the English rule is followed. In that case the vehicle was hired and

driven by one person, and another, the

speaking, made a distinction which has not heretofore been generally recognized. And in doing so, it cuts loose from a line of decisions founded upon a legal fiction which is not only absurd upon its face, but exceedingly unjust in its operation. In Follman v. City of Mankato,1 the court held that a passenger in a private carriage, riding in it upon the invitation of the owner thereof, who was himself driving it, is not affected by his negligence contributing to the disaster by which she was injured. That negligence is not imputed to her, and the city by whose negligence the disaster was primarily caused, was responsible in damages to her. A distinction is taken between public and private carriages, which, in our judgment, is unnecessary and misleading. The ruling in many cases has been that a passenger in a public carriage, may be deprived of his remedy for injuries inflicted by third persons, by proof of the contributory negligence of the driver of the vehicle. In a leading English case,2 a passenger in an omnibus was killed by an accident to which the negligence of the driver of the omnibus contributed. In an action by his administrator against the other party,

1 29 N. W. Rep., 317.

Thoroughgood v. Bryan, 8 C. B. 115.

negligence of the defendant, that of the driver contributing to the injury. held that the negligence of the be imputed to the plaintiff on the agency. It says:

The court driver must ground of

"When the agency of a person in control of a private conveyance is express, there is no difficulty in the rule. The contributory negligence of the servant will defeat the master's action for negligence against a third person; and it seems that there ought to be as little difficulty in the rule when the agency is implied only. One voluntarily in a private conveyance, voluntarily trusts his personal safety in the conveyance to the person in control of it. Voluntary entrance into a private conveyance adopts the conveyance, for the time being, as one's own, and assumes the risk of the skill and care of the person Pro hac vice, the master of a guiding it. private yacht, or the driver of a private carriage, is accepted as agent by every person voluntarily committing himself to it. There is a personal trust in such cases, which implies an agency."

Wisconsin cases. And in Michigan there is a like ruling. And this it seems was a case similar to that in Minnesota in that it was a private carriage.

In a Pennsylvania case the court follows the English rule as to its conclusion, yet repudiates the "identity" doctrine and bases its decision upon considerations of public policy.

The Supreme Court of Minnesota declines to follow these rulings, and puts its dissent upon what strikes us as a very sensible ground, that the whole theory of "identity" of a passenger with the driver of a vehicle, or that the driver is in any fair sense the servant or agent of the passenger, is, in plain language, a mere folly. "We do not refer to cases recognized as being exceptional, where parties stand in peculiar relations to each other; such as that of parent and child, guardian and ward. The theory of 'identity' The theory of 'identity' which may be taken as the ground of the decision in Thorogood v. Bryan, and other English cases, is so vague and undefined, as applied to circumstances such as are here presented, where no relation like that of master and servant, or principal and agent actually exists, and where the plaintiff is not only without fault, so far as appears, but without authority, respecting the conduct of the driver, that it is difficult to understand what is meant by it; and the explanatory remarks of Baron Pollock, supra, do not solve the difficulty of reconciling such a theory with the principle of law which affords a remedy to one who, being himself without fault, is injured by the wrongful act of another. It is enough to say, that this theory of identity has little or no support in this country; that the decision in Thorogood v. Bryan has not escaped criticism in the English courts, and has been generally repudiated in America."

It certainly seems ridiculous to say, that a gentleman entering an omnibus and paying his fare is "identified" with the driver in any other sense than that of a common humanity, or that a lady, (as in the case under consideration,) by accepting a gentleman's invitation to ride with him in his carriage, makes him

5 Honfe v. Fulton, 29 Wis. 296; Otis v. Janesville, 47 Wis. 422.

6 Lake Shore, etc. Co. v. Miller, 25 Mich. 274.

7 Lockhart v. Lictenthaler, 46 Pa. St. 151.

her servant" or "agent" in any sense whatever. The employment of such words in such a connection, and for such a purpose is not only an abuse of legal language, but a perversion of legal principles. In this connection the learned editors of Smith's Leading Cases say: "It is inconceivable that each set of passengers should by a fiction be identified with the coachman who drives them, so as to be restricted for remedy to one against their own driver or employee."

The Minnesota court is not without support in the stand which it has taken on this subject. In New York, in a case similar to that under consideration, a like conclusion was reached. And in a later case in the same State, 10 the court explicitly denied the exist ence of a relation of agency under such circumstances, and in this was followed by a still later case. The Supreme Court of the United States in a recent case,12 held that the driver of a hired hack was not the servant of the passenger who had hired the vehicle, nor was his negligence imputable to the latter.

11

In New Jersey, there have been two cases sustaining the same view. One of these was the case of a passenger on a horse car who was injured by the concurrent negligence of the driver, and of the defendant; 13 in the other case the plaintiff was a passenger in a hired hack. 14 In both cases the doctrines of identity and agency were held inapplicable to cases in which a man merely pays a nickel or a quarter for a ride in a street car or a hack. In Ohio, and in Illinois, 16 the courts have repudiated the doctrine of Thorogood v. Bryan, and refused to sanction the doctrines of identity or agency.

17

15

fanciful perversion of a well defined legal relation, and usually operating to the hindrance of justice. The rule conflicts as well. with common sense as with legal principle. To say that one who pays twenty-five cents to ride in an omnibus from a depot to a hotel is in any sense the "master" of the man who drives the vehicle, is simply and emphatically folly. A master is one who has the right to command; a servant is one whose duty is to obey, and neither command nor obedience is predicable of the relation between the parties. If the passenger orders the driver to go up A. street instead of B. street, he would probably be profanely snubbed for his impertenance, and to hold him responsible for the misdeeds of a man whom he cannot control, even in minor matters, is absurd as well as unjust.

JUDGMENTS AS EVIDENCE AGAINST THIRD PERSONS WHO ARE RESPONSIBLE OVER.

It is a general rule that a person who is responsible over to the defendant in an action at law for any loss or damage suffered by the latter in respect to the subject-matter of the suit, is concluded by a judgment recovered against the defendant without fraud or collusion, as to all the points necessarily determined by it, provided he had notice of the pendency of the suit and an opportunity to come in and make a defence.1 Nor is this any relaxation of the rule that a judgment estoppel is binding only upon parties and privies. For the person so responsible, by being apprised of the action and by being granted an opportunity to interpose any defences which are available to him, and generally to controvert the adverse claim, is in effect made a party to the litigation, and can no longer be regarded in the light of a mere stranger.2 And it is perfectly immaterial whether or not he does in fact participate in the defence of

1 Littleton v. Richardson, 34 N. H. 179; Salle v. Light, 4 Ala. 700; Mahaffy v. Lytle, 1 Watts, 314; Boston v. Worthington, 10 Gray, 496; Clark v. Carrington, 7 Cranch, 322; Hamilton v. Cutts, 4 Mass. 353; Bond v. Ward, 1 N. & McC. 201; Kip v. Brigham, 6 Johns. 158; Walker v. Ferrin, 4 Vt. 523; Tyree v. Magness, 1 Sneed, 276.

2 Salle v. Light, 4 Ala. 700.

the action. The two essentials are notice and opportunity to be heard. Given these, he stands in no better position than any defendant who neglects to interpose a meritorious defence; as to him the matter becomes res adjudicata.3

To apply these principles to a particular instance: where one who has conveyed land to another, with warranty of title, is vouched in by the latter, upon due and proper notice, to defend an action of ejectment brought by a third person against the warrantee for the recovery of the same land, the judgment in ejectment, if given for the stranger, is conclusive evidence, in a subsequent action by the covenantee against his grantor on the warranty of title, of the fact that the former has been evicted from his possession by a paramount title. But still on the principle that a judgment is conclusive only of the matters necessarily determined by it-there are certain defences open to the grantor, even in this case, when sued on his warranty of title; such, namely, as could not have been involved in the controversy between the tenant and the evictor, and such as are not necessarily inconsistent with that judgment. Thus he may show that his covenant was special, or that he made no covenant, or that the recovery was upon a title derived from the warrantee himself or in consequence of some fact occurring after the date of the covenant.5

The same rule applies where the warrantee is plaintiff in a suit for the recovery of the

3 Love v. Gibson, 2 Fla. 598; Veazie v. Railroad, 49 Me. 119.

4 Knapp v. Marlboro, 34 Vt. 235; Swenk v. Stout, 2 Yeates, 470; Collingwood v. Irwin, 3 Watts, 310; Turner v. Goodrich, 26 Vt. 708; Ives v. Niles, 5 Watts, 323; Miner v. Clark, 15 Wend. 425; Pitkin v. Leavitt, 13 Vt. 379; Wilson v. McElwee, 1 Strobh. 65; Hinds v. Allen, 34 Conn. 195; Hamilton v. Cutts, 4 Mass. 349; Kelly v. Church, 2 Hill, 105; Chapman v. Holmes, 5 Halst. 20; Morris v. Rowan, 2 Harr. (Del.) 307; King v. Kerr, 5 Ohio, 158; Jones v. Waggoner, 7 J. J. Mar. 144; Cox v. Strode, 4 Bibb. 4; Middleton v. Thompson, 1 Spears, 67; Wimberly v. Collier, 32 Ga. 13; St. Louis v. Bissell, 46 Mo. 157; Graham v. Tankersley, 15 Ala. 634; Boyd v. Whitfield, 19 Ark. 469; Wendel v. North, 24 Wis. 223; Chicago, etc. R. R. v. Northern Line Packet Co. 70 Ill. 221; Davenport v. Muir, 3 J. J. Mar. 310; Williams v. Leblanc, 14 La. An. 757; Harding v. Larkin, 41 Ill. 413; Chamberlain v. Preble, 11 Allen, 370; Harbin v, Roberts, 33 Ga. 45. A contrary rule, however, prevails in North Carolina; Wilder v. Ireland, 8 Jones, 83; Martin v. Cowles, 2 Dev. & B., 101.

5 Chicago, etc. R. R. v. Northern Line Packet Co. 70 Ill. 221; Davenport v. Muir, 3 J. J. Mar. 310; Rawle on Cov. for Title, 209.

land. That is, where he brings ejectment against a person whom he finds in possession of the estate deeded to him by the warrantor, and gives the latter proper notice to join in the action and make good his title, and judgment passes against them, such judgment is conclusive evidence of a want of title in the grantor when the warrantee sues him on his covenant.6 But the grantee of land is not bound by a judgment in a suit commenced after such grant, by his own grantor against his immediate grantor upon the covenants in his deed. And where a grantor in a deed has once responded to a suit on his covenant of warranty, brought by a proper party, he is not liable to a second suit on the same covenant; and the judgment obtained against him in the first suit is admissible as evidence in the second.8 Where the warrantor is not notified of the pendency of the suit against his grantee, or has no opportunity to interpose a defence, the judgment against the warrantee cannot be used as evidence, in a subsequent action on the covenants of the deed, to show the superior title of the party recovering it, though it is admissible for the purpose of proving the fact of eviction." But this amounts, after all, to no more than saying that the judgment is competent evidence of its own existence.

When ejectment is brought against a tenant in possession of the land, and he gives due and legal notice to his landlord, and the landlord has an opportunity to come in and defend, the latter is bound by a judgment against the tenant. 10

And even where the landlord receives no notice whatever of the action, and the stranger recovers judgment against the tenant, it is held, in Wisconsin, that the possession is adversely and completely changed by the judgment, and the landlord is so far bound by the judgment, notwithstanding his want

6 Brown v. Taylor, 13 Vt. 631; Gragg v. Richardson, 25 Ga. 566; Pitkin v. Leavitt, 13 Vt. 379; White v. Williams, 13 Tex. 258; Farrell v. Alder, 8 Humph. 44. 7 Winslow v. Grindal, 2 Me. 64.

8 Vancourt v. Moore, 26 Mo. 92; Brady v. Spurck, 27 Ill. 478.

9 Hardy v. Nelson, 27 Me. 525; Stephens v. Jack, 3 Yerg. 403; Tam v. Shaw, 10 Ind. 469.

10 Chambers v. Lapsley, 7 Pa. St. 24; Ryers v. Rippey, 25 Wend. 432; Harvie v. Turner, 46 Mo. 444; Valentine v. Mahoney, 37 Cal. 389; Chant v. Reynolds, 49 Cal. 213; Van Alstine v. McCarty, 51 Barb. 326.

of notice, although he is not bound as to the title or future right of possession." So a judgment in an action of ejectment cannot affect a person in possession of the premises when the suit is commenced unless he is made a party to the action. 12 But if a tenant of the defendant in such action has taken possession with actual notice of the pendency of the suit, he will be bound by the judgment as though a party. 13 And where the terre-tenant has actually appeared and had an opportunity to make a full defence, even though he may not have availed himself of it, he is concluded to every intent. 14

The same rule applies to the case of a sale of personal property with express or implied warranty of title. In a suit for a breach of such warranty of title, the record of a judgment for the value of the property, in favor of a third person and against the vendee (if it appears that the question of title was directly involved, and that the recovery was not upon a title derived from the vendee himself), is conclusive evidence against the vendor that the property was recovered by title paramount, provided it be shown that the vendee had given the vendor legal notice of the pendency of the action against him. 15 On the same principle, where the assignor of a note warranted it free from set-off, and in a suit by the assignee against the maker, of which the assignor was notified, and in the prosecution of which he took part, there was a judgment for a set-off, it was held that in a subsequent action by the assignee against the assignor for deceit, that judgment was conclusive evidence of the setoff. 16 And, in the language of Kent, J.: "It can make no difference that there are intermediate purchasers, and that the suit is against the last one, if the question of title is the sole matter in controversy. All the in

11 Striddle v. Saroni, 21 Wis. 173.

12 Fogarty v. Sparks, 22 Cal. 142; Bradley v. McDaniel, 3 Jones (N. C.), 128.

13 Fogarty v. Sparks, supra.

14 Himes v. Jacobs, 1 Pen. & W. 152.

15 Marlatt v. Clary, 20 Ark. 251; Salle v. Light, 4 Ala. 700; Thurston v. Spratt, 52 Me. 204; Boyd v. Whitfield, 19 Ark. 447; Brown v. McMullen, 1 Hill (S. C.), 29; Barney v. Dewey, 13 Johns. 225; Pickett v. Ford, 4 How. (Miss.), 246; Blasdale v. Babcock, 1 Johns. 517.

16 Walker v. Ferrin, 4 Vt. 523; and see Tyree v. Magness, 1 Sneed, 276; Morgan v. Simmons, 3 J. J. Mar. 611.