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the conveyance of the premises to himself subsequent to the making of the will; and if such conveyance was absolute, as claimed by said defendant, there could be no question but it operated to revoke the previous devise to him. In that case Byron Z. would hold under the deed, and not the will, because before the will took effect-December 27, 1875-the testator had conveyed all his interest in the premises to the defendant, and there was then nothing left in the former upon which it could operate or take effect. In such case the devise would be adeemed or defeated.

Upon this view of the matter, any reference in the answer to this will, except so far as the personalty is concerned, is certainly impertinent. For, as to the realty conveyed by the deed, the will is non-existent and of no effect. In Kean's Will, supra, Patrick Kean devised a tract of land to John Kean and afterwards executed a deed conveying him the same land. The court held that Kean took the land under the deed and not the will, and "consequently the will was inoperative and void"—that is, so far as the land conveyed was concerned. But the bill alleges that this conveyance was made in trust for the grantor therein, and unless it was so made the complainant has no equity. The effect of the conveyance upon this view of the transaction was to pass the legal estate that was in Thomas J. at the time of `making the will out of him and into the defendant, Byron Z., but in trust for the use and benefit of Thomas J. It was said by Lord Mansfield in Doe v. Pott, 2 Doug. 722, that the doctrine of revocation by alteration of the estate had been carried to an absurd length in some of the English cases; and in Ballard v. Carter, supra, Parker, J., in delivering the opinion of the court, said that, in assenting to the doctrine- "we would understand by any alteration of an estate, a material alteration; one which changes the nature and effects of the seizin of the testator;" and that the court was not inclined "by anticipation to adopt as law" such cases as where the alteration was for the express purpose of giving effect to a will, or where an estate was changed to a fee by a common recovery, the testator supposing when he made his will that he had a fee, or when the testator, parting with his estate for an instant, took the same estate back again or conveyed the estate to another for his own use, but would consider them when they arose.

But in Walton v. Walton, supra, Chancellor Kent held that an agreement to sell, being in equity equivalent to a conveyance, was a revocation of a prior devise of the same property-and this, although such agreement was rescinded whereby the testator at his death held his estate in the lands free from the effect of the act which produced the revocation-substantially as though it had never taken place. And in Bosley v. Bosley, supra, Mr. Chief Justice Taney states the rule with apparent approval which is deduced from the authorities in 4 Kent, 528, as follows: "The same interest which the testator had when he made his will should continue to be the same interest, and remain unaltered to his death, and that the least

alteration in that interest is a revocation." In this case the legal estate in the premises passed from the devisor to the devisee by the conveyance of March 29, 1870-according to the answer absolutely, but according to the bill in trust for the grantor. In the one case the whole estate having passed from the testator and none taken back, nothing is left on which the devise can operate, and it must fail, not so much on the ground of revocation as the want of a subject-matter on which to operate. (2 Am. L. Cas. 671.) In the other case the whole estate passed from the devisor also, but at the same time he took back another estate in the premises-a use to himself. And although this may be said to be substantially the same estate yet it is technically different. There was an alteration of the estate, and that, according to all the authorities, works a revocation of the devise.

The application of this rule to cases where the conveyance is inoperative and passes no estate, or where, by the same instrument or transaction, the testator takes back a beneficial interest in the property doubtless had its origin in the very natural preference which the common law gave to the heir over the devisee-a stranger to the inheritance. In England since 1 Vic. ch. 26, sec. 23, and in many of the American states this rule has been modified by statute so that a conveyance shall not affect the operation of a prior devise upon any interest in the property which the testator had power to devise at his death. (1 Red. on Wills, 333.) Even under this rule an absolute and unqualified conveyance of the devise works a revocation of the will ex necessitate, but any disposition short of or other than this leaves the devise to stand subject to the conveyance. Under these statutes, the legal estate in the premises in controversy would vest in the defendant, Byron Z., at the date of and by means of the deed, while the trust estate or use given to Thomas J. would also pass to the former under the will upon the death of the latter.

If the law were not so well settled otherwise by a long and uniform course of decisions, and if the Oregon statute changing the rule as to agreements to convey had not omitted conveyances therefrom and thereby indicated the intention of the legislature to leave them to have the same effect upon a prior devise as before, I should be inclined to hold that this was a case where the alteration of the estate, being technical rather than substantial, is not sufficient to revoke the prior devise but rather suggests an intention to anticipate or facilitate it by vesting the legal estate in the devisee at once and leaving the use to pass to him under the will upon the death of the testator.

But this point was not made in the argument for the defendant. Indeed, the ground mainly relied upon for the defence was that "the question whether the will was revoked or not is a question of factum;" and that this question under the law of Oregon is in the first instance exclusively for the probate court," and cannot be inquired into collaterally in any other; citing 1 Jarman,

106, 150, 220: 2 Green, Ev. sec. 680; California v. McGlynn, 20 Cal. 262, and other like authorities.

But as has been shown a will may be revoked by implication or operation of law as well as by the express act of the testator; and the question of revocation in this case is one of law and not of fact. The enquiry does not touch the validity of the will nor the legality of the judgment of the county court admitting it to probate. Therefore, it is not necessary to consider whether by the laws of this state the judgment of such court is conclusive upon the validity of the will or not. In both Bosley v. Bosley, and Ballard v. Carter, supra, it was held that the devise was revoked and that the property passed under the conveyance and not the will. But it does not appear to have been suggested that that was a collateral or any attack upon the judgment of the court admitting the will to probate. In fact, neither the will nor the judgment of the county court can be affected by the decree of the court in this suit. At most, the court will only determine that the premises in question are not within the purview or operation of the will-that the estate of the testator therein at the time of his death, having been acquired in contemplation of law after the devise is not affected by it.

The exceptions are allowed.

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1. MEMBERS OF LEGISLATURE SOLE POWER TO JUDGE OF ELECTION AND QUALIFICATIONS, VESTED IN EACH HOUSE, RESPECTIVELY.—In an action prosecuted by the state, on the relation of the attorneygeneral, to try the title of a defendant to his seat in the house of representatives of the legislature, and to oust him from office, where such defendant, upon the convening of the legislature, was declared and adjudged by the house to be a member and entitled to a seat in that body, and has continued to act as a member: Held, that this court has no jurisdiction to determine the question, as the power to judge of the elections, returns and qualifications of its own mem. bers is vested in each house, and can not by its own consent, nor by legislative action, be vested in any other tribunal or officer.

2. WHETHER OR NOT AN ACT PASSED by the votes of persons admitted as members in excess of the constitutional limit (and not legally passed without such votes) would, in a given case, be held constitutional and valid, can only be determined when presented in a proper action and in proper form.

Original proceedings in quo warranto

Willard Davis, attorney-general, for the state; J. G. Waters, for defendant.

The constitution of Kansas, as amended in 1873, contains the following provision:

ART. 2, §2: "The number of representatives and senators shall be regulated by law, but shall never exceed one hundred and twenty-five representatives and forty senators. From and after the adoption of the amendment, the house of representatives shall admit one member from each county in which at least two hundred and fifty legal votes were cast at the next preceding general election; and each organized county in which less than two hundred legal votes were cast at the next preceding general election shall be attached to and constitute a part of the representative district of the county lying next adjacent to it on the east."

At the session of the legislature held in 1876, an apportionment of senators and representatives was made upon the census of 1875. In this apportionment act, thirty-eight senate districts were created, of which thirty-six were to choose one senator each, and two districts (Douglas county and Leavenworth county) two senators each, making the maximum number allowed by the constitution. The same act specifically designated and numbered one hundred and twenty-three representative districts, which were authorized to choose one representative each. Said act contains the following provision:

"SEC. 1. The senate shall consist of forty members, and the house of representatives of one hundred and twenty-three members; but the number of representatives may be increased by the organiization of new counties to not more than one hundred and twenty-five." (Laws of 1876, p. 7.)

This act was passed and approved on the 2d of March, 1876. At that time there were several organized counties which were not included in the apportionment act. These counties with the date of the organization of each, as proclaimed by the governor, were

Rooks, organized November 26th, 1872.
Barbour, organized April 14th, 1873.
Harper, organized August 20th, 1873.
Ness, organized October 23d, 1873.
Comanche, organized October 28th, 1873.
Kingman, organized February 27th, 1874.
Pratt, organized March 14th, 1874.
Edwards, organized August 21st, 1874.
Rush, organized December 5th, 1874.

The legislature of 1877 was chosen at the general election in November, 1876, under the apportionnent of 1876. The one hundred and twentythree representative distriets designated in the apportionment act were all represented. And there also appeared four additional claimants to seats as members: Taylor Flick, from Edwards county; S. S. Boggs, from Rooks county; H. S. Cochran, from Barbour county; and W. P. Tomlinson, from Rush county. Flick and Cochran were first admitted and these filled the one one hundred and twentyfive seats, the constitutionat limit of the membership of the house of representatives. Then, in violation of the express provisions of the constitution, limiting the members of the house to one hundred

and twenty-five, Messrs. Tomlinson and Boggs were also admitted as members. The act of the house was so flagrant in its conduct in increasing the number of its representatives in excess of the constitutional provision, that on the 5th of March, 1877, the attorney-general filed in the supreme court a petition to try and oust W. P. Tomlinson from his office as a representative.

Tomlinson appeared and answered, alleging that Rush county was duly organized; that at the general election held in November, 1876, he was duly chosen by the legal voters of the county as representative, etc., and was duly admitted to his seat as such representative by the house of representatives at the session thereof in January, 1877; that he was a qualified elector of said county of Rush; and that no other person was claiming said office as representative of Rush county. To this answer the attorney-general demurred. The case heard upon these pleadings, and the facts thereby admitted.

was

HORTON, C. J., delivered the opinion of the court: This is an attempt by proceedings in the nature of quo warranto, to try the title of defendant to his seat in house of representatives of the legislature of Kansas. The facts, as they appear by petition and answer, are, that the defendant is a citizen of Rush county, and at the general election in 1876 was voted for and received a majority of all votes cast in that county for representative from that county; that at this election less than two hundred and fifty votes were cast; that at this time, Rush county was not attached to any other county; that upon the convening of the legislature, at the session of 1877, after due consideration, the house of representatives, by a majority of the members thereof then assembled, declared and adjudged the defendant to be the "legally elected representative from Rush county," and "entitled to a seat" as such member, since which time he has been and now is recognized as such member. (House Jour. 1877, p. 212.)

The attempt to determine the title of the defend. ant as a member of the legislature in this manner, must necessarily fail, for the simple reason that we cannot and ought not to take jurisdiction of the case. We are powerless to enforce any judgment of ouster against a member of the legislature. While the constitution has conferred the general judicial power of the state upon the courts and certain officers specified, there are certain powers of a judicial nature which, by the same instrument, are expressly conferred upon other bodies or officers, and among them is the power to judge of the elections, returns, and qualifications of members of the legislature. This power is exclusively vested in each house, and cannot by its own consent, or by legislative action, be vested in any other tribunal or officer. This power continues during the entire term of office. Sec. 8, art. 2, State Const.; The State v. Gilmore, 20 Kas. 551.

Within certain constitutional restrictions, the executive, legislative and judicial powers of the state, are independent and supreme; and neither has the right to enter upon the exclusive domain

of the other. We should be passing beyond the limits of our own power to judge of the election or qualifications of a member of the legislature; and as the constitution has expressly confided this power to another body, we must leave it where it has been deposited by the fundamental law. If we are at liberty to interfere in this case, or, if with consnt of the legislature we assume jurisdiction, we may review all similar decisions of that body, and in the end bring the legislative power of the state in conflict with the judiciary. The objections to such a course are so strong and obvious, that all must acknowledge them. We are not cited to a single case in the federal or state courts, where any eember of congress, or any member of a state legislature, from the foundation of the government to the present time, has been ousted by quo warranto. And the admission of this fact of itself, after the extensive investigation of this subject by the learned attorney-general, is almost conclusive that none can be found, and that the exercise of such power is not only unwarranted, but unknown. Judge Cooley says: "These powers, it is obviously proper, should rest with the body immediately interested, as essential to enable it to enter upon and proceed with its legislative functions, without liability to interruptions or confusion." Const. Lim. 133.

It is insisted, upon the authority of Prouty v. Stover, 11 Kas. 235, that this court has expressed the right to make inquiry into the fact whether the district from which a member of the legislature is admitted, exists or not, and if it does not exist, the member may be ousted by the courts. In that case, it was only decided that where the legislature was sitting as an electoral body, in a contest concerning the validity of an election by such body, the courts were not precluded by the action of the house in admitting members from inquiring into the legality of certain representative districts, and the rights of members admitted to seats from these districts to vote at such election. That decision is not in conflict with the view here stated, viz., that we have no jurisdiction, in a proceeding like this, to oust a person from his seat as a representative, after he has been declared and adjudged to be a member of the house by the power and tribunal having the exclusive authority to hear and determine that question. O'Ferrall v. Colby, 2 Minn. 180; McCrary on Elections, §515; Hiss v. Bartlett, 3 Gray, 468; People v. Mahaney, 13 Mich. 481.

That our decision in this case may not be misunderstood, or misconstrued, we desire to say, that we do not decide that the house of representatives can consist of more than one hundred and twentyfive members, that being the maximum number allowed by the constitution; nor do we decide that the house, in the exercise of its power to judge of the election and qualification of its members, can legally admit to the seats, as members, any number of persons in excess of one hundred and twentyfive; but the decision is, that, whether the house does or does not admit a greater number of persons as members than one hundred and twentyfive, this court has no jurisdiction to inquire by quo warranto, or otherwise, as to the right of any person to a seat as a member with a view of ous

ing him from his seat. Rightly or wrongly there, we are alike powerless in the premises. Whether or not an act passed by the votes of persons admitted as members in excess of the constitutional limit (and not legally passed without such votes) would, in a given case, be held constitutional and valid, can only be determined when presented in a proper action and in proper form.

The petition and proceedings in this action will be dismissed, at the costs of the plaintiff. za All the Justices concurring.

MASTER AND SERVANT-NEGLIGENCE OF ~FELLOW-SERVANT LIABILITY OF MAS

TER.

CHARLES v. TAYLER.

English Court of Appeal, June, 1878.

1. COMMON EMPLOYMENT-FELLOW-SERVANT.When two persons are working for the same master for a common general object, there is no liability upon the master to answer to either of them for damages resulting from the negligence of the other, although the actual piece of work on which they were engaged is not the sa

2. CASE IN JUDGMENT.-The plaintiff was hired by a man, who had contracted to unload a coal barge at the defendants' brewery, to assist in unloading; he was paid by the defendants, and the defendants alone could discharge him. While employed in carrying coal he was injured through the negligence of the defendants' servants, who were moving barrels in the brewery. Held, affirming the judgment of Lopes, J., that there was evidence to justify a finding that the plaintiff was the defendants' servant, that he was engaged in a common employment with the person who caused the injury, and that, therefore, he could not recover.

This was an action brought to recover damages for injury caused to the plaintiff by the negligence of the servants of the defendants.

The defendants were owners of a brewery situated on a wharf by the side of a river, and the plaintiff was employed at the wharf in unloading a barge containing coals intended to be used in the defendants' brewery. The plaintiff was engaged by a man named Ansell, who was what is called a "lamper," and who had contracted with the defendants to unload the barge and carry the coal on to the defendants' premises for 1s. 9d. a ton, he finding the necessary labor. He engaged the plaintiff and some other men, and the money paid by the defendants was divided among those who were employed.

Ansell, in his evidence at the trial, said he hired the plaintiff and could have hired any one he liked; he also said he (Ansell) was servant to the defendants, and could not discharge the plaintiff without the defendants' permission, and, when asked who could discharge the plaintiff, he answered, “I could not; they look to me as foreman; I could not discharge him."

The plaintiff was carrying a sack of coals, and was ascending some stone steps underneath a

heavy flap, which was kept in its place by a chain; some of the defendants' men were engaged above in moving barrels of beer, and one of the barrels slipped, through the negligence of those who were moving it, fell against the chain which kept up the flap and broke it, in consequence of which the flap came down on the plaintiff and seriously injured him.

The amount of the damage was fixed by agreement, and the case was reserved for the consideration of LOPES, J., with power to draw inferences of fact.

The learned judge distinguished the case from Abraham v. Reynolds, 8 W. R. 181, 5 H. & N. 143, as being more like Wiggett v. Fox, 4 W. R. 254, 11 Ex. 832; and held that the plaintiff could not be said to be servant to Ansell, the case being undistinguishable from Morgan v. The Vale of Neath Railway Company, 14 W. R. 144, L. R. 1 Q. B. 149. He accordingly gave judgment for the defendants on the ground that the injury to the plaintiff was caused by the negligence of his fellow servants acting in a common employment with him. Against this judgment the plaintiff appealed. Bucknill, for the plaintiff. First, the plaintiff was not in the service of the defendants. Swainson v. The North Eastern Railway Company, 26 W. R. 413. He was in the service of Ansell, an independent contractor, and, therefore, the defeudants are liable to him for the negligence of their servants. Ansell's position was like that of a stevedore, who is an independent contractor. Murray v. Currie, 19 W. R. 104, L. R. 6 C. P. 24. The defendants did not pay the plaintiff, and were not liable to him for wages; they were only liable to pay Ansell. If the plaintiff had been guilty of negligence, the defendants could not have been made liable for his negligence, only Ansell or the plaintiff himself would have been liable. Secondly, even if the plaintiff was the servant of the defendants, there was no common employment as between him and the men who were moving the barrels, so as to exempt the defendants from liability to him for their negligence. Lovell v. Howell, 24 W. R. 672, L. R. 1 C. P. D. 161, differs from the present case, in that there the plaintiff had himself undertaken the particular risk by going out through a particular door, which made the case like Degg v. The Midland Railway Company, 10 W. R. 364, 1 H. & N. 773. Similarly, Woodley v. The Metropolitan Railway Company, L. R. 2 Ex. D. 385, 25 W. R. Dig. 155, is not an authority against the plaintiff. No positive general rule governing all cases of this kind can be laid down, but each case must depend on its own special circumstances. Rourke v. The White Moss Colliery Company, L. R. 1 C. P. D. 556, affirmed in the Court of Appeal, 25 W. R. 263, L. R. 2 C. P. D. 205, is a stronger case against common employment than this; and see Indermaur v. Dames, 14 W. R. 586, L. R. 1 C. P. 274, affirmed, 15 W. R. 134, L. R. 2 C. P. 311. Morgan v. The Vale of Neath Railway Company, 12 W. R. 1032, 5 B. & S. 570, affirmed, 14 W. R. 144, L. R. 1 Q. B. 149, is distinguishable, the plaintiff in that case being a carpenter in the general employment of the railway company, who could have

been sent to work anywhere. The plaintiff here was engaged in entirely distinct and separate work from the persons who caused the injury, and there was no common employment: see the judgments of Lord Chelmsford in McNarton v. The Caledonian Railway Company, cited in Smith's Master and Servant, 3d ed., p. 205; and Bartonshill Coal Company v. McGuire, 6 W. R. 697, 3 Macq. 307. Abraham v. Reynolds is an authority for the plaintiff; and Wiggett v. Fox, which is relied on for the defendants, is questioned by Lord Chief Justice Cockburn in Rourke v. The White Moss Colliery Company. [THESIGER, L.J., referred to Wilson v. Merry, L. R. 1 Sc. & D. 326.] In Smith v. Steele, 23 W. R. 38S, L. R. 10 Q. B. 125, the executrix of a pilot who had been employed by shipowners, where the employment of a pilot was compulsory, was held entitled to recover against the owners for the negligence of their servants, which caused the testator's death. Thirdly, assuming that the plaintiff was the defendants' servant, and that there was a common employment, the defendants are liable, for it does not appear that the danger was known to the plaintiff. See the judgment of Lord Chelmsford in Bartonshill Coal Company v. McGuire.

Day, Q. C., and Erskine Pollock, for the defendants. The plaintiff was not the servant of Ansell, so as to put him in the position of one of the general public, as regards the defendants; and this must be shown in order to entitle him to recover. There was a common employment here, for the coals which the plaintiff was carrying were wanted for the brewery, and the men who were moving the barrels were working for the brewery; and where two persons are working for the same master, and for a common general object, that constitutes a common employment. This case is governed by Wiggett v. Fox, and Morgan v. The Vale of Neath Railway Company.

Buckmill was heard in reply.
BRETT, L.J.

Mr. Bucknell has argued this case very ably, and everything has been said that could be said on behalf of the plaintiff. Notwithstanding, I am of opinion that we must affirm the judgment of Mr. Justice Lopes. The first point is, was the plaintiff a servant of the defendants at all? The evidence was left to Mr. Justice Lopes, by agreement, to draw inferences and arrive at a conclusion. He has come to the conclusion that the plaintiff was the servant of the defendants; and the question is not, should we have come to the same conclusion ourselves? But was the learned judge so wrong in the conclusion at which he arrived that we ought to set aside his finding as being against the weight of evidence? At the trial, among other witnesses, a man named Ansell was called. He was what is called a "lumper," and was employed by the defendants, the terms of the employment being that he should get the barge discharged at 1s. 9d. a ton, and obtain men to do the work, he doing part of it himself; the men were paid out of the 1s. 9d. a ton. Ansell stated that he did the work and settled with the men; that they used to work under him as men work under a foreman; he worked as if he

were a foreman; he also said that he could not dismiss the men himself. I think, therefore, Mr. Justice Lopes was justified in saying that Ansell was not an independent contractor, but a workman; for the time he was servant to the defendants, for he was not a master workman, but a foreman. I think Mr. Justice Lopes was right as to the duties of a "lumper," and that Ansell was not a master, but, as he himself said, a foreman. If that is true, the plaintiff was the servant of the defendants, and he was injured by the negligent act of another servant of the defendants.

Then it is said that they were not fellow-servants within the rule which has been established, so as to exempt the defendants from liability. Many cases and views of different judges have been cited to show the principle on which, though a master is liable to all other persons in the world for the negligence of his servant, he is not liable to a servant of his own who was engaged in a common employment with the servant who was guilty of negligence. It would be contrary to our duty to say anything as to the policy of the law; that question is not one for our consideration; we have to find out the principle, and apply it to the circumstances of the case before us. I have heard and read many views which have been expressed on the subject; they are not all the same, but it is not material to consider here which is absolutely correct, for they all come to this in substance-where the negli gence of one servant of the defendant has caused injury to another servant of the defendant, in general the defendant is not liable; the rule absolves the master where a man is injured by the act of a servant, if the plaintiff is also a servant; that is, if they are both servants of the same master, and the service of each brings him to the same place, and at the same time, with the other, and one is negligently injured by the other fellow-seavant, then the master is absolved from liability. Here the service of the plaintiff would oblige him to work at the same place and at the same time as the servants who wree engaged in moving the casks, and here there is more than that, for both were working for the brewery. I put it on this, that both were servants of the same master, and were at work at the same place and at the same time. Lord Cairns, in Wilson v. Merry, meant that, and not that the servants need be of the same class, or work ing for the same result; but that if they were engaged in one general employment the master was not liable. Therefore, I think there was evidence on which Mr. Justice Lopes rightly found that the plaintiff and the person whose negligence caused the injury to him were working for the same master in a common employment, so as to exempt the defendants from liability.

COTTON, L. J.:

I also think that the judgment was right. The plaintiff was injured by negligence, and the first point which is necessary to be made out on behalf of the defendants, in order to bring the case within the exception to the general rule, is that he was the servant of the defendants. I had more doubt on that point at one time than the other members of the court seem to have had; but we are not here to form an

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