Sidor som bilder

cided in 1838, and reported in 3 M. & W. 247. The case was not decided on its merits, owing to a defect in the pleadings, but the doctrine stated in the previous case was admitted by the judges in their opinions. Next came the cases of Thorogood v. Bryan, and Catlin v. Hills, reported consecutively in 8 C. B. 115 and 123. In Thorogood v. Bryan, the action was brought to recover damages for the death of a passenger in an omnibus, who was run over and killed while alighting, by the defendant's omnibus. In Catlin v. Hills, the plaintiff was a passenger on a Thames River steamer, and was injured by a collision with the defendant's steamer. The defence set up by both the defendants, was negligence on the part of those managing the plaintiff's conveyance; in the first case, for depositing the passenger a considerable distance from the sidewalk, and in the second, for improperly stowing the anchor, which was knocked down by the collision and fell upon the plaintiff's leg. The cases were argued the same day, but before judgment was given, the case of Catlin v. Hills was compromised. Separate opinions were delivered by the judges, of which the following are extracts. Coltman, J., said: "The case of Thorogood v. Bryan, seems distinctly to raise the question whether a passenger in an omnibus is to be considered so far identified with the owner, that negligence on the part of the owner or his servant is to be considered negligence of the passenger himself. As I understand the law upon the subject, it is this, that a party who sustains an injury from the careless negligent driving or of another, may maintain an action, unless he has himself been guilty of such negligence or want of due care as to have contributed or conduced to the injury. In the present case, the negligence that is relied on as an excuse is not the personal negligence of the party injured, but the negligence

of the driver of the omnibus in which he was a passenger. But it appears to me that having trusted the party by selecting the particular conveyance, the plaintiff has so far identified himself with the owner and her servants, that if any injury results from their negligence, he must be considered a party to it. In other words, the passenger is so far identified with the carriage in which he is traveling, that want of care on the part of the driver

will be a defense of the driver of a carriage which directly caused the injury." Maule, J., said: "On the part of the plaintiff it is suggested that a passenger in a public conveyance has no control over the driver. But I think that can not with propriety be said. He selects the conveyance. He enters into a contract with the owner, whom, by his servant, the driver, he employs to drive him. If he is dissatified with the mode of conveyance, he is not obliged to avail himself of it. According to the terms of his contract he unquestionably has a remedy for any negligence on the part of the person with whom he contracts for the journey. But it seems strange to

say, that, although the defendant would not, under the circumstances, be liable to the owner of the other omnibus for any damage done to his carriage, he still would be responsible for an injury to a passenger." The other judges delivered short opinions to the same


The cases of Rigby v. Hewitt, and Greenland v. Chaplin, decided in 1850, and reported in 5 Exch. 239 and 243, and one or two other cases are sometimes cited as being contrary to the decision in Thorogood v. Bryan, and the preceding cases; but the decision in Thorogood v. Bryan, has been re-affirmed by the late case of Armstrong v. R. R., L. R. 10 Exch. 47. In this case, the plaintiff, one of the traveling inspectors of the carriage and wagon department of the L. & N. W. Railway Company, was traveling under a pass from them, in one of their carriages, on a journey from Leeds to Manchester. Near C. station, and on the line of the defendants' road over which the L. & N. W. Railway Company had running powers, the train in which the plaintiff was traveling came in collision with a number of loaded wagons which were being shunted from a siding by the defendants, and he was injured. There was evidence of negligence on the part of the driver of the plaintiff's train in traveling at too great a speed, so as to be unable to stop when he came in sight of the danger signal which had been hoisted by the defendants. Held, approving the decision. in Thorogood v. Bryan that the plaintiff was so far identified with the L. & N. W. Railway Company that he could not recover. These cases seem to establish pretty strongly the doctrine that mutual negligence of the driver

and a third person is a complete defence to an action brought by the passenger against such third person.

In this country, the courts are not in agreement. New York, New Jersey and Kentucky are strongly opposed to the rule laid down by the English courts, while decisions supporting that rule are cited from the reports of Massachusetts, Pennsylvania and Ohio.

To take up the latter cases first, the two following cases from Ohio are often cited as upholding the English doctrine. The Cleveland, Columbus and Cincinnati R. R. Co. v. Terry, 8 Ohio, St. 570, and Puterbaugh v. Reasor, 9 Id. 484. It is, however, difficult to see how the point in question is covered by these decisions. The first case seems to have no application at all in this connection, while in the second the point decided was this: That the owner of horse could not recover for his loss against a third person by whose negligence and the negligence of the plaintiff's agent the loss occurred, viz.: That the contributory negligence of the agent prevented recovery by the principal. This appears to have very little bearing on the principal question unless we assume at the outset that the very act of taking passage constitutes the driver the plaintiff's agent, an assumption which even the English cases have hesitated to make directly. Another case often cited as supporting the English rule is that of Smith v. Smith, 2 Pick. 621. Here the action was brought against the defendant by whose negligence the plaintiff's horse was injured. It was proved at the trial that the person who had hired the horse of the plaintiff, and was driving it at the time of the accident, contributed, by his negligence, to the injury, and for this reason it was held that the plaintiff could not recover. This case, like the preceding, does not seem to be strictly in point; and in both cases, besides, there is the element of bailment, which goes still further to destroy their analogy to the cases of Thorogood v. Bryan, etc. In Pennsylvania, in the case of Lockhart v. Lichtenthaler, 46 Penn. St. 151, the court follows in the wake of the English decisions, not basing their decision, however, upon the same ground, viz. the identification of the passenger with his own vehicle, but upon the broader ground of public policy "it better accords with the policy of the law to hold the carrier



alone responsible in such circumstances, as an incentive to care and diligence."

The following cases are to the contrary effect: In Chapman v. New Haven R. Co., 19 N. Y. 341, in which case the accident was caused by a collision of two trains, it was held that the negligence of the carrying train did not bar a recovery by the person carried. In Colegrove v. New York and New Haven, R, Co., 20 N. Y. 492; s. c. 6 Duer, 382, it was held under the same circumstances, that the passenger could maintain a joint action against both companies. The same decision was reached in Barrett v. Third Ave. R. Co., in which case the colliding vehicles were horse cars; the court holding that both companies were liable jointly or severally. In the case of Robinson v. N. Y. & C. R. Co., 66 N. Y. 11, it was held that a female who accepts an invitation to take a ride with a person in every way competent and fit to manage a horse, is not chargeable with his negligence; and contributory negligence on his part is no defense to an action against a railroad corporation for injuries resulting from a collision. In New Jersey the New York doctrine is followed in Bennett v. N. J. R. & T. Co., 36' N. J. 225. In this case the plaintiff was a passenger in a horse car, and was injured by a collision with a locomotive. There was evidence of negligence on both sides. It was held that this did not disentitle the plaintiff to recover. To the same effect is the case of the Danville, Lancaster & Nicholsonville Turnpike Co. v. Stewart, 2 Met. (Ky.) 119. This case decides that, though the driver of a coach, a passenger in which was injured by a collision between the coach and a turnpike gate, may have been somewhat negligent in not lighting his lamps, this furnishes no excuse to the turnpike company for failing to keep the gate securely fastened back. If the injury had resulted wholly from his negligence, the company would not be liable; but if the injury were occasioned by the negligence of both, both in that case are liable to the party injured.

It will be seen from an examination of the cases decided in this country, that those cited as supporting the English rule, with one exception, are not entirely applicable, while the case forming the one exception, that of Lockhart v. Lichtenthaler, supra, bases its decision upon a different ground than that of identity, as laid down in Thorogood v. Bryan. What

precise meaning the word "identity" in this connection bears, is somewhat difficult to understand. It means, of course, that such a close relationship is established between the driver and the passenger that the latter's right to recover for an injury caused by the joint negligence of the former, and that of a third person, is identical with the driver's right of recovery; but what this relationship is, is a point that is not very clearly determined by those courts which follow the doctrine of Thorogood v. Bryan. The only relationship, however, that can exist between the two is that of master and servant, or principal and agent. But how can it he said that the driver of a coach, or the manager of a train of cars, or other conveyance, is the servant or agent of the passenger, in that coach or conveyance. The passenger has no power to change the line of travel, or the point of destination; nor can he exercise the right of master over servant by sending him upon another journey. But if, however, the driver or conductor is the agent of one passenger, he is equally the agent of all, and subject to the different commands and directions of all the passengers. And, if he is the agent of all the passengers, so that negligence on his part is a bar to their recovery, it must also follow that negligence on his part subjects each passenger to an action for any injury caused by such negligence. For it can not be consistent with the broad principles of the law that this agency is created for one purpose only, and does not exist for all; that it exists when the right of the passenger to recover is concerned, but not when the question of his liability for the negligence of his driver arises. We can not so divide the relationship as to call it into existence at one moment, and deny that existence the next. If, then, we follow the rule as laid down in Thorogood v. Bryan, we are logically brought to hold each passenger responsible for the negligence and careless acts of his driver, or the person in charge of the conveyance in which he is riding, which is a manifest absurdity.

In the case of Lockhart v. Lichtenthaler, supra, the reason for the decision was that it was in accordance with public policy to hold the carrier alone responsible as a preventive against negligence and carelessness, but why he carrier would be more likely to use due

care when responsible to his own passengers alone, than when he is jointly and severally liable with some third person, it is somewhat difficult to see. The very fact that he was responsible to passengers in other vehicles, as well as those in his own, would seem to be still more of an "incentive to care and diligence" on his part.

In closing we quote a few words from the editor of Smith's Leading Cases, Vol. I, p. 220: "If two drunken stage coachmen were to drive their respective carriages against each other, and injure he passengers, e ch would have to bear the injury to his carriage, no doubt; but it seems highly unreasonable that each set of passengers should, by a fiction, be identified with the coachman who drove them so as to be restricted for remedy to actions against their own driver, or his employer. This, nevertheless, appears to be the result of the decision in Thorogood v. Bryan. Why, in this particular case, both the wrong doers should not be considered liable to a person free from all blame, not answerable for the acts of either of them, and whom they have both injured, is a question which seems to deserve more consideration than it received in Thorogood v. Bryan."* J. A. T.

[* See, also, on the point discussed in this article, the recent case of Prideaux v. City of Mineral Point, 6 Cent. L. J. 429.-ED. CENT. L. J.]



Supreme Court of Missouri, April Term, 1879.

[Filed June 2, 1879.]

The actual situs of personal property, and not the domicil of its owner, must determine the State in which it may be taxed. Municipal bonds of counties, like other commercial securities, are property in the place where they are found, and taxable there, and the owner of such bonds who has sent them out of this State into another in good faith, can not be taxed on such bonds in this State, although he may have his domicil in this State.

Appeal from the Circuit Court of Howard county: NAPTON, J., delivered the opinion of the court: Upon a certiorari issued at the instance of W. F. Dunnica, requiring certain proceedings by the board of equalization and the county court, to be sent up to the circuit court for review, it appeared


that the Assessor of Howard county notified the board of equalization that Dunnica had falsely and fraudulently refused to give a correct list of his personal property. In the investigation of this charge, the board found that Dunnica had twentytwo bonds of Howard county, of one thousand dollars each, and prior to such assessment had sent them to New York; that they were taxable in Howard county, and therefore raised his taxable property $17,500, and by way of penalty for furnishing such false list, trebled this sum, and ordered him to be taxed for $52,500 00. The county court sustained this act of the board. In the circuit court, on the return of the certiorari, it appeared that Dunnica testified before the board as follows: That prior to the passage of the revenue act of 1872, he sent twenty-two Howard county bonds belonging to his wife, of the value of $17,600, to the city of New York, to the Safe Deposit Company, being the bonds aforesaid, which company kept a safe for the purpose of safely keeping bonds of this character, payable to bearer; that he paid one dollar per thousand for such safe keeping; that said bonds were in New York on August 1st, 1875; that they were not sent out of this State to avoid taxation, but for safety; that he made no effort to conceal the fact that his wife held the bonds; that he had consulted counsel, and was advised by such counsel that said bonds were not taxable or subject to taxation in the State of Missouri; that he did not believe the bonds were taxable by law in this State, and that he had taken the oath required by law; that he had sent no property out of this State to avoid taxation. The relator states that said board of equalization, without hearing other evidence than that of relator, proceeded to add to the assessment list of relator the bonds found by them and shown by relator to have been in the State of New York on the 1st day of August, 1875, placing said valuation at the sum of $17,500. The circuit court quashed the certiorari, thereby sustaining the action of the county court and the board of equalization.

It will be seen that the only question involved is whether these municipal bonds were taxable in Howard county, the domicil of the owner, though sent to New York for bona fide purposes, three years before the assessment.

Mr. Justice Field observes, in 15 Wall. 323, that "it is undoubtedly true that the actual situs of personal property, which has a visible and tangible existence, and not the domicil of its owner, will, in many cases, determine the State in which it may be taxed. The same thing is true of public securities consisting of State bonds, and bonds of municipal bodies, and circulating notes of banking institutions; the former, by general usage, have acquired the character of, and are treated as property in the place they are found, though removed from the domicil of the owner, the latter are treated and pass as money wherever they are."

In this State, the opinions have been decided in conformity to this position, and, indeed, have gone beyond it, extending the doctrine to ordinary bonds and stocks. In State on Petition of Taylor v. St. Louis Co. Court, 47 Mo. 599, the doctrine is

applied to bonds and notes and stocks of every description. In St. Louis v. Wiggins Ferry Co., 40 Mo. 58, the same doctrine is sustained. The property of either a resident or non-resident is taxable here, if it be found situate within the local jurisdiction, whether it be within the hands of the owner himself or of his agents. It is conceded that they can not be assessed in both States, the situs of the bonds and the domicil of the owner, though an erroneous assessment in one will not exempt them from a correct assessment in the other.

Our statute of 1872, adopted since the decision | above referred to, seems to us to concede its propriety. The 31st section, 2 Wag. Stat. 1164, requires the following oath to be taken by the citizen assessed: "I do solemnly swear or affirm that the foregoing list contains a true and correct list of all the personal property made taxable by the law of the State of Missouri, including therein money and notes or bonds, on hand or on deposit, owned by me, or under my charge or management, etc., and that I have not sent or taken any property, bills, bonds or notes, or other securities out of this State to avoid taxation, so help me God." Does not this oath necessarily imply that where such property has been sent out of the State, for bona fide purposes, and not to avoid taxation, it is exempt? Why require the oath, if it is equally subject to taxation, whether sent out of the State in good faith or not? Our legislature seems to have been of opinion that the adoption of the rule decided in Taylor v. St. Louis, 47 Mo. 599, would not operate injuriously on the revenue, believing, doubtless, that the property of capitalists in this State, whose domicil was abroad, would greatly exceed that of our citizens, the situs of which was in good faith in other States. Nor were they impressed with the justice of declaring property taxable here, which was properly taxable elsewhere. That such is the English rule, is apparent from the leading case of Attorney-General v. Hope, 1 Cr. M. & R. 530; and Attorney-General v. Dimond, 1 Cr. & Jar. 370.

In conformity, then, to the decisions in this State, and, indeed, to the fair deductions from the revenue law itself, it is obvious that the judgment of the circuit court was erroneous. It is therefore reversed. The other judges concur.




Supreme Court of Illinois.

[Filed at Ottawa, February 22, 1879.]

Although a decree of the United States Circuit Court for the Northern District of Illinois upon a bill filed to foreclose a mortgage, for the sale of the mortgaged premises, without granting to the mortga gor

the right of redemption of the property within one year, as given by the statutes of the State of Illinois, is erroneous and void, yet where no appeal is taken therefrom within the allowed time, the courts of the State of Illinois have no power upon bill filed by the mortgagor to set aside the sale and allow redemption.

On the 11th day of July, 1874, the Connecticut Mutual Life Insurance Company filed its bill of complaint in the Circuit Court of the United States for the Northern District of Illinois against Jacob E. Saitterlin and others, to foreclose two mortgages upon certain premises, which had been executed by Snitterlin to the company, the bill explicitly praying for a foreclosure "according to the rules and practice of said court."

On the 8th day of March, 1875, a decree was entered in the cause, finding the amount due upon the mortgages and directing the same to be paid within one hundred days, and that in default of such payment the master in chancery of said court sell the mortgaged premises at public auction and "according to the course and practice" of said United States Circuit Court, which was, from its organization down to May, 1878, to make such sales absolute and not subject to redemption. The master in accordance with the decree advertised the premises for sale at public auction, and sold the same on May 10th, 1876, to the Connecticut Mutual Life Insurance Company, it being the highest bidder. On May 31, 1876, there was an order of confirmation of the master's report of sale and directing the master to execute to the insurance company, the purchaser, a deed for the premises, and further directing that the mortgagor be forever barred and foreclosed of and from all right and equity of redemption in and to the premises, and that the purchaser be let into possession. In addition a money decree for over $6,000 for deficiency was rendered against Snitterlin. The master, on June 16, 1876, in pursuance of the order of the court, executed to the company a deed of conveyance of the mortgaged premises.

On the 20th day of June, 1878, Snitterlin filed his bill is chancery in the Circuit Court of Cook County to redeem from the mortgagees, charging that the rules and practice of the Circuit Court for the Northern District of Illinois were to make such foreclosure sales absolute and not subject to redemption, and claiming that the decree of the United States Circuit Court so far as it ordered the sale to be made in accordance with the course and practice of said court, that is, without redemption, was contrary to the statute of the State of Illinois, allowing a right of redemption upon such sales, and void; that the court had no power or jurisdiction to direct a sale in that manner; that the sale was void and the deed issued thereon a cloud upon complainant's title; that so far as the decree was lawful, it had never been executed, and that the mortgagor, the complainant, was entitled to make payment and relieve the premises of the lien thereof, which he offered to do.

To this bill the Connecticut Mutual Life Insurance Company pleaded in bar the record of the United States Circuit Court in the foreclosure proceeding and the deed issued thereunder, and

section 1008 of the Revised Statutes of the United States limiting the time for appeals and writs of error in the United States courts to two years; that more than two years had elapsed since the decree and that no writ of error had been brought or appeal taken, or bill of review filed. This plea haying been set down for argument was held by the circuit court pro forma to be good and sufficient. and the bill was accordingly dismissed for want of equity. The cause having been taken to the Appellate Court of this State for the Fourth District by writ of error, the decree of the Circuit Court of Cook County was affirmed, and the complainant has appealed to this court.

The statute of this State at the time of the foreclosure proceeding, as also when the mortgages were executed and ever since, gave in a foreclosure case a right of redemption after the foreclosure sale, during the period of one year to the debtor and of fifteen months to a judgment creditor, by paying the amount of the bid with ten per cent. per annum interest, and directed that the officer making the sale, instead of executing a deed, should give the purchaser a certificate of the sale, stating among other things the time when the purchaser would be entitled to a deed if the premises were not redeemed. By the recent decision of the Supreme Court of the United States in the case of Brine v. Hartford Fire Insurance Co., 7 Cent. L. J. 181, it was held that a like decree of the Circuit Court of the United States for the Northern District of Illinois in a foreclosure case where the master in chancery was ordered to sell the land for cash, making such sale in accordance with the course and practice of the court, was erroneous; it being admitted in the case that it was according to the course and practice of the court that the master makes at the sale a deed, which by the uniform practice of the court gives him the right to immediate possession and cuts off all right of redemption statutory or otherwise. The ground of reversal was the conflict of the decree with the statutes of Illinois allowing redemption; that where foreclosure proceedings are regular, the decree, the sale made under it, and the deed made on the sale, would constitute a transfer of real estate from one person to another, and that the title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situated; and that the State statutes of redemption are of such a character that they create a rule of property entering into the contract of mortgage, and are obligatory in all courts which assume to give remedy on such contracts.

It is not questioned that under the decision in the Brine case, the decree of the United States Circuit Court now under consideration was erroneous. The position taken by the appellee is that the decree was but erroneous and so good until reversed in some way, and that it and the proceedings under it can not be collaterally questioned; that proceedings for such reversal must be taken within the time allowed by law, and that time having elapsed the decree and the execution of it can no longer be drawn in question.

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