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the conveyance of the premises to himself subse alteration in that interest is a revocation." In quent to the making of the will; and if such con this case the legal estate in the premises passed veyance was absolute, as claimed by said defend from the devisor to the devisee by the conveyance ant, there could be no question but it operated to of March 29, 1870--according to the answer absurevoke the previous devise to him. In that case lutely, but according to the bill in trust for the Byron Z. would hold under the deed, and not the grantor. In the one case the whole estate having will, because before the will took effect-December passed from the testator and none taken back, 27, 1875-the testator had conveyed all his interest nothing is left on which the devise can operate, in the premises to the defendant, and there was and it must fail, not so much on the ground of then nothing left in the former upon which it could revocation as the want of a subject-matter on operate or take effect. In such case the devise which to operate. (2 Am. L. Cas. 671.) In the would be adeemed or defeated.

other case the whole estate passed from the deUpon this view of the matter, any reference in visor also, but at the same time he took back the answer to this will, except so far as the per another estate in the premises—a use to himself. sonalty is concerned, is certainly impertinent. For, And although this may be said to be substantially as to the realty conveyed by the deed, the will is the same estate yet it is technically different. non-existent and of no effect. In Kean's Will, There was an alteration of the estate, and that, supra, Patrick Kean devised a tract of land to according to all the authorities, works & revocaJohn Kean and afterwards executed a deed con tion of the devise. veying him the same land. The court held that The application of this rule to cases where the Kean took the land under the deed and not the

| conveyance is inoperative and passes no estate, or will, and “consequently the will was inoperative where, by the same instrument or transaction, the and void”-that is, so far as the land conveyed testator takes back a beneficial interest in the was concerned. But the bill alleges that this con

property doubtless had its origin in the very natveyance was made in trust for the grantor therein,

ural preference which the common law gare to and unless it was so made the complainant has no the heir over the devisee-a stranger to the inherequity. The effect of the conveyance upon this

itance. In England since 1 Vic. ch. 26, sec. 23, view of the transaction was to pass the legal es and in many of the American states this rule has tate that was in Thomas J. at the time of making been modified by statute so that a conveyance the will out of him and into the defendant, By shall not affect the operation of a prior deron Z., but in trust for the use and benefit of vise upon any interest in the property which Thomas J. It was said by Lord Mansfield in Doe

the testator had power to devise at bis v. Pott, 2 Doug. 722, that the doctrine of revoca death. (1 Red. on Wills, 333.) Even under tion by alteration of the estate had been carried

this rule an absolute and unqualified conveyance of to an absurd length in some of the English cases; the devise works a revocation of the will ez neand in Ballard v. Carter, supra, Parker, J., in de cessitate, but any disposition short of or other than livering the opinion of the court, said that, in as

this leaves the devise to stand subject to the consenting to the doctrine, "we would understand veyance. Under these statutes, the legal estate in by any alteration of an estate, a material altera the premises in controversy would vest in the de. tion; one which changes the nature and effects of fendant, Byron Z., at the date of and by means of the seizin of the testator;' and that the court was the deed, while the trust estate or use given to not inclined “by anticipation to adopt as law". Thomas J. would also pass to the former under such cases as where the alteration was for the ex the will upon the death of the latter. press purpose of giving effect to a will, or where

If the law were not so well settled otherwise by an estate was changed to a fee by a common re

a long and uniform course of decisions, and if covery, the testator supposing when he made his

the Oregon statute changing the rule as to agreewill that he had a fee, or when the testator, part ments to convey had not omitted conveyances ing with his estate for an instant, took the same

therefrom and thereby indicated the intention of estate back again or conveyed the estate to another

the legislature to leave them to have the same effor his own use, but would consider them when

fect upon a prior devise as before, I should be inthey arose.

clined to hold that this was a case where the alterBut in Walton v. Walton, supra, Chancellor ation of the estate, being technical rather than Kent held that an agreement to sell, being in substantial, is not sufficient to revoke the prior equity equivalent to a conveyance, was a revoca devise but rather suggests an intention to anticition of a prior devise of the same property—and pate or facilitate it by vesting the legal estate in this, although such agreement was rescinded the devisee at once and leaving the use to pass to whereby the testator at his death held his estate in him under the will upon the death of the testathe lands free from the effect of the act which tor. produced the revocation-substantially as though But this point was not made in the argument for it had never taken place. And in Bosley v. Bos the defendant. Indeed, the ground mainly relied ley, supra, Mr. Chief Justice Taney states the rule

upon for the defence was that “the question with apparent approval which is deduced from the

whether the will was revoked or got is a question authorities in 4 Kent, 528, as follows: "The same of factum;" and that this question under the law interest which the testator had when he made his

of Oregon is in “the first instance exclusively will should continue to be the same interest, and for the probate court," and cannot be inquired remain unaltered to his death, and that the least" into collaterally in any other; citing 1 Jarman, 106, 150, 220: 2 Green, Ev. sec. 680; California y. Willard Davis, attorney-general, for the state; McGlynn, 20 Cal. 262, and other like authorities. i J. G. Waters, for defendant.

Bit as has been shown a will may be revoked by The constitution of Kansas, as amended in 1873, implication or operation of law as well as by the contains the following provision: express act of the testator; and the question of ART. 2, $2: “The number of representatives and revocation in this case is one of law and not of senators shall be regulated by law, but shall never fact. The enquiry does not touch the validity of exceed one hundred and twenty-five representatives and the will nor the legality of the judgment of the forty senators. From and after the adoption of the county court admitting it to probate. Therefore, | amendment, the house of representatives shall adit is not necessary to consider whether by the laws mit one member from each county in which at of this state the judgment of such court is con least two hundred and fifty legal votes were cast at clusive upon the validity of the will or not. In the next preceding general election, and each orboth Bosley v. Bosley, and Ballard y. Carter, su ganized county in which less than two hundred pra, it was held that the devise was revoked and legal votes were cast at the next preceding general that the property passed under the conveyance and election shall be attached to and constitute a part not the will. But it does not appear to have been of the representative district of the county lying suggested that that was a collateral or any attack

| next adjacent to it on the east.” upon the judgment of the court admitting the will At the session of the legislature held in 1876, an to probate. In fact, neither the will nor the judg apportionment of senators and representatives was ment of the county court can be affected by the made upon the census of 1875. In this apportiondecree of the court in this suit. At most, the ment act, thirty-eight senate districts were creacourt will only determine that the premises in ted, of which thirty-six were to choose one senator question are not within the purview or operation each, and two districts (Douglas county and Leavof the will—that the estate of the testator therein enworth county) two senators each, making the at the time of his death, having been acquired in maximum number allowed by the constitution. contemplation of law after the devise is not af The same act specifically designated and numbered fected by it.

one hundred and twenty-three representative disThe exceptions are allowed.

tricts, which were authorized to choose one representative each. Said act contains the following provision:

“Sec. 1. The senate shall consist of forty memEACH HOUSE OF A LEGISLATURE THE

bers, and the house of representatives of one hun. JUDGE OF THE QUALIFICATIONS OF ITS

dred and twenty-three members; but the number OWN MEMBERS.

of representatives may be increased by the organi

ization of new counties to not more than one hunSTATE v. TOMLINSON.

dred 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 orSupreme Court of Kansas.

ganized counties which were not included in the

apportionment act. These counties with the date July Term, 1878.

of the organization of each, as proclaimed by the

governor, were HON. ALBERT H. HORTON, Chief Justice. D. M. VALENTINE, } Associate Justices.

Rooks, organized November 26th, 1872. " D. J. BREWER,

Barbour, organized April 14th, 1873.

Harper, organized August 20th, 1873. 1. MEMBERS OF LEGISLATURE – SOLE POWER TO Ness, organized October 23d, 1873. JUDGE OF ELECTION AND QUALIFICATIONS, VESTED Comanche, organized October 28th, 1873. IN EACH HOUSE, RESPECTIVELY.-In an action pros Kingman, organized February 27th, 1874. ecuted by the state, on the relation of the attorney

Pratt, organized March 14th, 1874. general, to try the title of a defendant to his seat in the house of representatives of the legislature, and to

Edwards, organized August 21st, 1874. oust him from office, where such defendant, upon the

Rush, organized December 5th, 1874. convening of the legislature, was declared and ad The legislature of 1877 was chosen at the generjudged by the house to be a member and entitled to a

al election in November, 1876, under the apporseat in that body, and has continued to act as a mem. ber: Held, that this court has no jurisdiction to de.

tionnient of 1876. The one hundred and twentytermine the question, as the power to judge of the

three representative distriets designated in the apelections, returns and qualifications of its own mem

portionment act were all represented. And there bers is vested in each house, and can not by its own also appeared four additional claimants to seats as consent, nor by legislative action, be vested in any members: Taylor Flick, from Edwards county; S. other tribunal or officer.

S. Boggs, from Rooks county; H. S. Cochran, from 2. WHETHER OR NOT AN ACT PASSED by the votes Barbour county; and W. P. Tomlinson, from Rush of persons admitted as members in excess of the con. county. Flick and Cochran were first admitted stitutional limit (and not legally passed without such

and these filled the one one hundred and twentyvotes) would, in a given case, be held constitutional

five seats, the constitutionat limit of the member. and valid, can only be determined when presented in a

ship of the house of representatives. Then, in vioproper action and in proper form.

lation of the express provisions of the constitution, Original proceedings in quo warranto

limiting the members of the house to one hundred and twenty-five, Messrs. Tomlinson and Boggs of the other. We should be passing beyond the were also admitted as members. The act of the limits of our own power to judge of the election or house was so flagrant in its conduct in increasing qualifications of a member of the legislature; and the number of its representatives in excess of the as the constitution has expressly confided this pow. constitutional provision, that on the 5th of March, er to another body, we must leave it where it has 1877, the attorney-general filed in the supreme been deposited by the fundamental law. If we are court a petition to try and oust W. P. Tomlinson at liberty to interfere in this case, or, if with confrom his office as a representative.

snt of the legislature we assume jurisdiction, we Tomlinson appeared and answered, alleging that may review all similar decisions of that body, and Rush county was duly organized; that at the gen

in the end bring the legislative power of the state eral election held in November, 1876, he was duly in conflict with the judiciary. The objections to chosen by the legal voters of the county as repre such a course are so strong and obvious, that all sentative, etc., and was duly admitted to his seat must acknowledge them. We are not cited to a as such representative by the house of representa

single case in the federal or state courts, where any tives at the session thereof in January, 1877; that

eember of congress, or any member of a state leg. he was a qualified elector of said county of Rush;

islature, from the foundation of the government to and that no other person was claiming said office

the present time, has been ousted by quo warranto. as representative of Rush county. To this answer And the admission of this fact of itself, after the the attorney-general demurred. The case was extensive investigation of this subject by the learnheard upon these pleadings, and the facts thereby ed attorney-general, is almost conclusive that none admitted.

can be found, and that the exercise of such power Horton,C.J., delivered the opinion of the court:

is not only unwarranted, but unknown. Judge

Cooley says: “These powers, it is obviously propThis is an attempt by proceedings in the

er, should rest with the body immediately internature of quo warranto, to try the title of

ested, as essential to enable it to enter upon and defendant to his seat in house of represent

proceed with its legislative functions, without liaatives of the legislature of Kansas. The facts,

bility to interruptions or confusion." Const, as they appear by petition and answer, are, that

Lim. 133. the defendapt is a citizen of Rush county, and at

It is insisted, upon the authority of Prouty v. the general election in 1876 was voted for and re

Stover, 11 Kas. 233, that this court has expressed ceived a majority of all votes cast in that county

the right to make inquiry into the fact whether the for representative from that county; that at this

district from which a member of the legislature is election less than two hundred and fifty votes were

admitted, exists or not, and if it does not exist, the cast; that at this time, Rush county was not attached to any other county; that upon the con

member may be ousted by the courts. In that

case, it was only decided that where the legislature vening of the legislature, at the session of 1877,

was sitting as an electoral body, in a contest conafier due consideration, the house of representatives, by a majority of the members thereof then

cerning the validity of an election by such body,

the courts were not precluded by the action of the assembled, declared and adjudged the defendant

house in admitting members from inquiring into to be the legally elected representative from

the legality of certain representative districts, and Rush county," and "entitled to a seat” as such

the rights of members admitted to seats from these member, since which time he has been and now is

districts to vote at such election. That decision is recognized as such member. (House Jour. 1877,

not in conflict with the view here stated, viz., that p. 212.)

we have no jurisdiction, in a proceeding like this, The attempt to determine the title of the defend.

to oust a person from his seat as a representative, ant as a member of the legislature in this manner,

after he has been declared and adjudged to be a must necessarily fail, for the simple reason that

member of the house by the power and tribunal we cannot and ought not to take jurisdiction of the

having the exclusive authority to hear and detercase. We are powerless to enforce any judgment

mine that question. O'Ferrall v. Colby, 2 Minn. of ouster against a member of the legislature. 180; McCrary on Elections, $ 515; Hiss v. Bartlett, While the constitution has conferred the general

3 Gray, 468; People v. Mabaney, 13 Mich: 481. judicial power of the state upon the courts and

That our decision in this case may not be misuncertain officers specified, there are certain powers

derstood, or misconstrued, we desire to say, that of a judicial nature which, by the same instrument,

we do not decide that the house of representatives are expressly conferred upon other bodies or

can consist of more than one hundred and twentyofficers, and among them is the power to judge of

five members, that being the maximum number althe elections, returns, and qualifications of mem

of mem- | lowed by the constitution; nor do we decide that bers of the legislature. This power is exclusively the house, in the exercise of its power to judge of vested in each house, and cannot by its own con

| the election and qualification of its members, can sent, or by legislative action, be vested in any

legally admit to the seats, as members, any number other tribunal or officer. This power continues

of persons in excess of one hundred and twentyduring the entire term of office. Sec. 8, art. 2,

five; but the decision is, that, whether the house State Const.; The State v. Gilmore, 20 Kas. 551.

does or does not admit a greater number of perWithin certain constitutional restrictions, the

sons as meinbers than one hundred and twentyexecutive, legislative and judicial powers of the

five, this court has no jurisdiction to inquire by state, are independent and supreme; and neither

quo warranto, or otherwise, as to the right of any has the right to enter upon the exclusive domain

person to a seat as a member with a view of ous

ing him from his seat. Rightly or wrongly there, heavy flap, which was kept in its place by a chain; we are alike powerless in the premises. Whether some of the defendants' men were engaged above or not an act passed by the votes of persons ad in moving barrels of beer, and one of the barrels mitted as members in excess of the constitutional slipped, through the negligence of those who were limit (and not legally passed without such votes) | moving it, fell against the chain which kept up the would, in a given case, be held constitutional and flap and broke it, in consequence of which the flap valid, can only be determined when presented in a 1 came down on the plaintiff and seriously injured proper action and in proper form.

him. The petition and proceedings in this action will The amount of the damage was fixed by agreebe dismissed, at the costs of the plaintiff. üba* ment, and the case was reserved for the consideraAll the Justices concurring.

tion of LOPES, J., with power to draw inferences of fact.

The learned judge distinguished the case from MASTER 'AND SERVANT-NEGLIGENCE OF

Abraham v. Reynolds, 8 W. R. 181, 5 H, & N. 143,

as being more like Wiggett v. Fox, 4 W. R. 254, 11 FELLOW-SERVANT LIABILITY OF MAS

Ex. 832; and held that the plaintiff could not be TER.

said to be servant to Ansell, the case being undis

tinguishable from Morgan v. The Vale of Neath CHARLES v. TAYLER.

Railway Company, 14 W. R. 144, L. R. 1 Q. B.

149. He accordingly gave judgment for the deEnglish Court of Appeal, June, 1878.

fendants on the ground that the injury to the plain

tiff was caused by the negligence of his fellow sery1. COMMON EMPLOYMENT-FELLOW-SERVANT. ants acting in a common employment with him. When two persons are working for the same master Against this judgment the plaintiff appealed. for a common general object, there is no liability upon Bucknill, for the plaintiff. First, the plaintiff the master to answer to either of them for damages

was not in the service of the defendants. Swainson resulting from the negligence of the other, although

v. The North Eastern Railway Company, 26 W. the actual piece of work on which they were engaged

R. 413. He was in the service of Ansell, an indeis not the s& .

pendent contractor, and, therefore, the defeudants 2. CASE IN JUDGMENT.-The plaintiff was hired by a

are liable to him for the negligence of their seryman, who had contracted to upload a coal barge at the

ants. Ansell's position was like that of a stevedefendants'brewery, to assist in unloading; he was paid by the defendants, and the defendants alone could

dore, who is an independent contractor. Murray discharge bim. While employed in carrying coal he v. Currie, 19 W. R. 104, L. R. 6 C. P. 24. The dewas injured through the negligence of the defendants' fendants did not pay the plaintiff, and were not liservants, who were moving barrels in the brewery. able to him for wages; they were only liable to Held, affirming the judgment of Lopes, J., that there

pay Ansell. If the plaintiff had been guilty of was evidence to justily a finding that the plaintiff was

negligence, the defendants could not have been the defendants' servant, that he was engaged in a

made liable for his negligence, only Ansell or the common employment with the person who caused the injury, and that, therefore, he could not recover.

plaintiff himself would have been liable. Secondly,

even if the plaintiff was the servant of the defendThis was an action brought to recover damages ants, there was no common employment as befor injury caused to the plaintiff by the negligence tween him and the men who were moving the barof the servants of the defendants.

rels, so as to exempt the defendants from liability The defendants were owners of a brewery situ- to him for their negligence. Lovell v. Howell, 24 ated on a wharf by the side of a river, and the W. R. 672, L. R. 1 C. P. D. 161, differs from the plaintiff was employed at the wharf in unloading a present case, in that there the plaintiff had himself barge containing coals intended to be used in the undertaken the particular risk by going out through defendants' brewery. The plaintiff was engaged a particular door, which made the case like Degg by a man named Ansell, who was what is called a v. The Midland Railway Company, 10 W. R. 364, "lamper,” and who had contracted with the de- | 1 H. & N. 773. Similarly, Woodley v. The Metropolifendants to unload the barge and carry the coal on tan Railway Company, L. R. 2 Ex. D. 385, 25 W. to the defendants' premises for ls. 9d. a ton, he R. Dig. 155, is not an authority against the plainfinding the necessary labor. He engaged the tiff. No positive general rule governing all cases plaintiff and some other men, and the money paid of this kind can be laid down, but each case must by the defendants was divided among those who depend on its own special circumstances. Rourke were employed.

v. The White Moss Colliery Company, L. R. 1 C. Aasell, in his evidence at the trial, said he hired | P. D. 556, affirmed in the Court of Appeal, 25 W. the plaintiff and could have hired any one he liked; R. 263, L. R. 2 C. P. D. 205, is a stronger case he also said he (Ansell) was servant to the defend against common employment than this; and see ants, and could not discharge the plaintiff without Indermaur v. Dames, 14 W. R. 386, L. R. 1 C. P. the defendants' permission, and, when asked who 274, affirmed, 15 W. R. 134, L. R. 2C.P. 311. Morcould discharge the plaintiff, he answered, “I gan v. The Vale of Neath Railway Company, 12 could not; they look to me as foreman; I could W. R. 1032, 5 B. & S. 570, affirmed, 14 W. R. 144, not discharge him."

L. R. 1 Q. B. 149, is distinguishable, the plaintiff The plaintiff was carrying a sack of coals, and | in that case being a carpenter in the general emwas ascending some stone steps underneath a ' ployment of the railway company, who could have been sent to work anywhere. The plaintiff here | were a foreman; he also said that he could not was engaged in entirely distinct and separate work dismiss the men himself. I think, therefore, Mr. from the persons who caused the injury, and there Justice Lopes was justified in saying that Ansell was no common employment: see the judgments of was not an independent contractor, but a workLord Chelmsford in McNarton v. The Caledonian man; for the time he was servant to the defendRailway Company, cited in Smith's Master and ants, for he was not a master workman, but a Servant, 3d ed., p. 205; and Bartonshill Coal Com foreman. I think Mr. Justice Lopes was right as pany v. McGuire, 6 W. R. 697, 3 Macq. 307. Abra to the duties of a “lumper," and that Ansell was ham v. Reynolds is an authority for the plaintiff; not a master, but, as he himself said, a foreman. and Wiggett v. Fox, which is relied on for the de- | If that is true, the plaintiff was the servant of the fendants, is questioned by Lord Chief Justice Cock defendants, and he was injured by the negligent burn in Rourke v. The White Moss Colliery Com act of another servant of the defendants. pany. [THESIGER, L.J., referred to Wilson v. Then it is said that they were not fellow-servants Merry, L. R. 1 Sc. & D. 326.] In Smith v. Steele, within the rule which has been established, so as 23 W. R. 385, L. R. 10 Q. B. 125, the executrix of to exempt the defendants from liability. Many cases a pilot who had been employed by shipowners, and views of different judges have been cited to where the employment of a pilot was compulsory, show the principle on which, though a master is was held entitled to recover against the owners for | liable to all other persons in the world for the neg. the negligence of their servants, which caused the ligence of his servant, he is not liable to a servant testator's death. Thirdly, assuming that the plain | of his own who was engaged in a common employtiff was the defendants servant, and that there ment with the servant who was guilty of negli. was a common employment, the defendants are li gence. It would be contrary to our duty to say able, for it does not appear that the danger was anything as to the policy of the law; that question known to the plaintiff. See the judgment of Lord | is not one for our consideration; we have to find Chelmsford in Bartonshill Coal Company v. Mc-| out the principle, and apply it to the circumstances Guire.


of the case before us. I have heard and read many Day, Q. C., and Erskine Pollock, for the defend. | views which have been expressed on the subject; ants. The plaintiff was not the servant of Ansell, they are not all the same, but it is not material to so as to put him in the position of one of the gen consider here which is absolutely correct, for they eral public, as regards the defendants; and this all come to this in substance-where the neglimust be shown in order to entitle him to recover. gence of one servant of the defendant has caused There was a common employment here, for the injury to another servant of the defendant, in gencoals which the plaintiff was carrying were wanted eral the defendant is not liable; the rule absolves for the brewery, and the men who were moving the the master where a man is injured by the act of a barrels were working for the brewery; and where servant, if the plaintiff is also a seryant; that is, if two persons are working for the same master, and they are both servants of the same master, and the for a common general object, that constitutes a service of each brings him to the same place, and common employment. This case is governed by at the same time, with the other, and one is negliWiggett v. Fox, and Morgan v. The Vale of Neath gently injured by the other fellow-seivant, then Railway Company.

the master is absolved from liability. Here the Bucknill was heard in reply.

service of the plaintiff would oblige him to work BRETT, L.J.

at the same place and at the same time as the serve Mr. Bucknell has argued this case very ably, and

ants who wree engaged in moving the casks, and everything has been said that could be said on be

here there is more than that, for both were workhalf of the plaintiff. Notwithstanding, I am of

ing for the brewery. I put it on this, that both opinion that we must affirm the judgment of Mr.

were servants of the same master, and were at Justice Lopes. The first point is, was the plaintiff

work at the same place and at the same time. Lord a servant of the defendants at all? The evidence

Cairns, in Wilson v. Merry, meant that, and not was left to Mr. Justice Lopes, by agreement, to

that the servants need be of the same class, or work draw inferences and arrive at a conclusion. He

ing for the same result; but that if they were enhas come to the conclusion that the plaintiff was

gaged in one general employment the master was the servant of the defendants; and the question is

not liable. Therefore, I think there was evidence not, should we have come to the same conclusion

on which Mr. Justice Lopes rightly found that the ourselves? But was the learned judge so wrong in

plaintiff and the person whose negligence caused the conclusion at which he arrived that we ought to

the injury to him were working for the same masset aside his finding as being against the weight of

ter in a common employment, so as to exempt the evidence? At the trial, among other witnesses, a

defendants from liability man named Ansell was called. He was what is COTTON, L. J.: called a “lumper," and was employed by the de I also think that the judgment was right. The fendants, the terms of the employment being that plaintiff was injured by negligence, and the first he should get the barge discharged at ls. 9d. a ton, point which is necessary to be made out on behalf of and obtain men to do the work, he doing part of it the defendants, in order to bring the case within the himself; the men were paid out of the ls. 9d. & exception to the general rule, is that he was the seryton. Ansell stated that he did the work and settled i ant of the defendants. I had more doubt on that point with the men; that they used to work under him at one time than the other members of the court as men work under a foreman; he worked as if he seem to have had; but we are not here to form an

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