an agreement but directly by an action for damages representing the costs of an action unsuccessfully maintained' against the present plaintiff by the defendant, who as attorney of the person who had brought the former action against the plaintiff, had agreed with his client to carry on the suit in consideration of one-third of the clear net profits. The client was unable to pay the present plaintiff any of the costs of the former suit. Their lordships considered that if the defendant had instigated the suit maliciously and without probable cause that would have been an actionable wrong, but that in this case he had not done so but was prompted in what he did by his having formed a favourable and sanguine opinion of the title-and by the hope of a profitable return for his advances,' and in fact two judges did decide in favour of the then plaintiff. After reviewing in detail the Indian cases on maintenance and champerty, their lordships held that it was established that the specific English laws on the subject did not apply to India, having before the acquisition of India become in a great degree inapplicable to the altered state of society and property in England, but nevertheless that contracts of this character ought under certain circumstances to be held to be invalid, as being against public policy. It was held that even if this agreement would have been invalid between the attorney and his client, as being unconscionable, yet it was no punishable offence and created no right of action. In the judgment there occurs a passage which clearly defines the distinction established by the law of India-' A fair agreement to supply funds to carry on a suit in consideration of having a share of the property if recovered, ought not to be regarded as being, per se, opposed to public policy. Indeed cases may be easily supposed in which it would be in furtherance of right and justice, and necessary to resist oppression, that a suitor who had a just title to property and no means except the property itself, should be assisted in this manner. But agreements of this kind ought to be carefully watched, and when found to be extortionate and unconscionable, so as to be inequitable against the party; or to be made not with the bond fide object of assisting a claim believed to be just, and of obtaining a reasonable recompense therefor, but for improper objects, as for the purpose of gambling in litigation, or of injuring or oppressing others by abetting and encouraging unrighteous suits, so as to be contrary to public policy-effect ought not to be given to them.'

To sum up; it has been shown that the English law of maintenance and champerty is founded on statutes several centuries old which were based on a condition of society now entirely passed away; that (with certain exceptions as regards gratuitous maintenance) the rule is a hard and fast one not dependent on any con

siderations of justice or public policy; that against certain forms of the offence there exist good reasons of public policy or otherwise, but that in other cases it would be an assistance to justice to allow a champertous agreement; and that in India the distinction between. these two cases is recognised by the law, differing in this respect from the law of England.

Without expressing a definite opinion, it is not going too far to say that it is at least a matter worthy of consideration whether the law of England should not be assimilated to that of India by enacting that the mere fact of maintenance or champerty shall not of itself be illegal. The case of Guy v. Churchill (40 Ch. D. 481), already mentioned, seems to show that in the case of trustees in bankruptcy, i. e. of one special class of poor suitors, the English legislature has already recognised this principle; for Chitty J. there held that an agreement, in itself champertous, by a trustee in bankruptcy selling a right of action in consideration of a share of the sum to be recovered to a creditor who undertook the responsibility of the litigation as trustee for the other creditors, was justified by the Bankruptcy Act 1883 as well as on the ground of interest in the suit.

The dangers of subornation of perjury, or of oppression as between the parties to a champertous agreement, can be dealt with by the law; it would be more difficult to prevent the rise of a regular 'speculation in law-suits'; but of course the court would not enforce any agreement which was against public policy, and such practices might perhaps be checked by allowing only solicitors to enter into these arrangements and by making the maintainer personally responsible for costs. But it would be premature now to discuss the details and consequences of imaginary legislation; it is enough to point out what appears to be an anomaly and injustice in the law.

A. H. DENNIS.

STATUTORY CHANGES IN THE DOCTRINE OF CO

INT

SERVICE IN THE UNITED STATES1.

NTRODUCTORY.-The General Rule.-The exemption of an employer from liability for injuries to one of his servants caused by the negligence of a fellow-servant was first recognised in the United States by the Supreme Court of South Carolina in 1841. In 1842, Chief Justice Shaw of Massachusetts decided the leading case of Farwell v. Boston and Albany R. Co., which may be said to have settled the common law in this country. The validity of the rule itself, with one exception 2, has never been denied by an American Court. If it has been deemed too harsh and unjust to the employé, the remedy has always been sought in the Legislature. The interpretation to be given to the rule, however, has not been unanimously settled. In several of the States, notably Ohio, Kentucky, Tennessee, Iowa, Nebraska, Missouri and North Carolina, the Courts have endeavored to soften the so-called rigor of the law by adopting what is called the Superior servant limitation.' In these jurisdictions, some of them having Courts of great learning, there is recognised a distinction in their relation to their common employer, between servants exercising no supervision over others engaged with them in the same employment, and those who are clothed with the control and management of a distinct department in which their duty is that of direction and superintendence. This limitation is based upon the theory of the presumed presence of the principal in reference to the acts of servants or agents. It deals altogether with the station or position which the two employés occupy, and overlooks the character of the act out of the negligent performance or nonperformance of which the injury arose, the only true criterion of fellow-service. However just and more humane this rule may be, as it is claimed by its advocates, there is no escaping the truth that it is an usurpation on the part of the Courts of the prerogatives of the Legislature and is in its fullest sense 'judge-made law.' It appears to the writer to be an erroneous deduction from the language of the earlier reports wherein certain servants are called vice

1 Adapted from a work upon The Law of Fellow-Servants (Edward Thompson Company, Northport, N. Y.), by William M. McKinney, Associate Editor of American and English Railroad Cases.

2 The Scots decision of Dixon v. Rankin, denying the doctrine of Co-Service, came to the notice of the Supreme Court of Wisconsin in 1860. Relying on this case the Court overruled a former decision, and decided that a master was liable for an injury to one employé caused by the negligence of a co-servant. In the following year, however, this decision was overruled and the general rule re-affirmed. Chamberlain, 18 Wis. 700.

Moseley v.

principals, is founded on false theories, and its systematic and consistent application is impossible. It cannot be a correct rule of law.

In other States the common law doctrine of co-service itself has been so vigorously attacked that the law-making powers have deemed it expedient to do away with it, either partially or altogether. Statutes have been passed in eight States and two Territories. Few of them are of as sweeping a character as the English Act, their application with three exceptions being confined to railway companies. These statutory changes in the law of master and servant began as early as 1855, and at the present time the subject is being agitated in several States where the common-law rule still prevails. It will be the purpose of this article to examine these acts, setting out such portions of them as may be thought proper, as well as the construction which the Courts have placed upon them.

Georgia. The first State to make any changes in this direction was the Commonwealth of Georgia. This is rather remarkable in view of the fact that at the time the law was amended, 1855, the State was largely agricultural, railroads were exceedingly few, and manufacturing enterprises almost unknown. However, in the year mentioned the Legislature passed the following Acts, which have been incorporated into the Code of 1873

S. 2083. Railroad Companies are common carriers and liable as such. As such companies necessarily have many employés who cannot possibly control those who should exercise care and diligence in the running of trains, such companies shall be liable to such employés as to passengers for injuries arising from the want of such care and diligence.'

S. 3036. If the person injured is himself an employé of the company, and the damage was caused by another employé and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery.'

This means clearly that a recovery is allowed if the damage was caused by another employé and was not caused by the fault or negligence of the employé hurt. If he directly or indirectly caused it, or contributed to it at all, then he cannot recover. But though he had been at fault about something wholly disconnected with the transaction, or was at the time at fault about a matter that had nothing to do with the catastrophe, then he may recover. And such is the law in all the books and all the cases bearing on the point1. The Act has been held not to be limited to any class of railway employés 2. When asked to reconsider its decision to this effect, and

1 Central R. Co. v. Mitchell, 63 Ga. 173.

2 Thompson v. Railway, 54 Ga. 509.

the point was for the first time made that the Act, if unlimited in its operation, would be unconstitutional, the Court adhered (much on the principle of Stare decisis) to its former decision, and also held the law constitutional1. The plaintiff in a suit under this Act has no burden to show not only that he himself was blameless, but that the defendant was negligent. The moment the plaintiff proves to the jury either, the legal presumption proves the other until rebutted, and the defendant must rebut that presumption 2.'

Iowa. It was seven years after the passage of the Georgia Act that the agricultural State of Iowa changed the common law. In 1862 the following provisions were enacted:—

'Every corporation operating a railway shall be liable for all damages sustained by any person, including employés of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employés of the corporation, and in consequence of the wilful wrongs, whether of commission or omission, of such agents, engineers, or other employés, when such wrongs are in any manner connected with the use and operation of any railroad on or about which they shall be employed; and no contract which restricts such liability shall be legal and binding 3.'

This change of the rule of the common law, it will be seen, extends no further than to employés engaged in the business of operating railroads, and not to all persons employed by the corporation without regard to their employment. The Legislature had in mind the fact that corporations owning and operating railroads may engage in other business which may be within the scope of the objects of their organisation, yet not at all, or very remotely, connected with the use of their roads. In such cases employés by whom such affairs are conducted acquire no rights under this Act. Their occupation does not expose them to the hazards incident to the use of railways. Accordingly the labor of the Courts has been to determine what employés are connected with the 'use and operation' of a railway. We find a host of decisions upon this point. The following employés have been held entitled to the protection of the Act: A person engaged in working on a bridge and obliged to ride on the company's trains; a section-hand; a hand engaged on a gravel or dirt train; a person temporarily employed as a brakeman by the conductor of a train during the absence of the regular brakeman; an employé injured while riding on a hand car; a private detective injured while walking on the track; a sectionhand directed to help unload a train; an employé whose duty it

1 Georgia R. Co. v. Ivey. 73 Ga. 499; Georgia R. Co. v. Goldwire, 56 Ga. 196.

2 Savannah &c. R. Co. v. Barber, 71 Ga. 644.

3 Rev. Code, 1880, s. 1307.

4 Schroeder v. C. R. & I. R. Co., 71 Iowa, 344.