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It appears that a motor company, as the owner of an automobile, and its servant, who was driving it at the time of a collision, were sued for injuries arising out of a collision. There was a verdict against the company and in favor of the servant, and the motor company, only, appealed. The court said:

"We think the verdict as a whole was equivalent to one finding no cause of action against the appellant. As has already been pointed out, the only claim of liability against it was based on the alleged negligence of its employee. The primary and absolutely essential facts to be found. by the jury before any liability could be visited on the appellant were that the driver of the machine was negligent and that the plaintiff was free from negligence. The two defendants did not stand on the same plane of liability as might sometimes happen where an action had been brought against two alleged tort feasors and where a verdict might with entire propriety be rendered relieving either one and holding the other. The appellant's liability was purely of a derivative or secondary character on the theory of respondeat superior, and when the jury found that the employee was free from tortious conduct or that the plaintiff was guilty of contributory negligence, the facts were settled which necessarily led to a verdict of immunity so far as appellant was concerned, and the ver

dict should have been in its favor. There was then left no support for, or consistency, in a verdict against the employer.

"When the jury took its improper and unwarranted course, nevertheless, of rendering a verdict against it, a situation was presented somewhat analogous to the one which arises where inconsistent findings. have been made or where a jury has found a general verdict which is inconsistent with special findings, and in determining whether the judgment is supported and authorized, we think that the appellant is entitled to have applied the principles which give to an appellant the benefit of the most advantageous of the inconsistent findings, (Whalen v. Stuart, 194 N. Y. 495), or which make the special findings superior in effect to the general verdict (Code, sec. 1188), and thus to have the award of damages against it controlled by, and yield to, the verdict and findings that the facts did not exist which justified such an award of damages."

The court, thereupon, was confronted with the question of what to do with the case, the plaintiff not appealing from the verdict rendered in favor of the servant,

and as to this it speaks as follows:

"The Code provides that we 'may either modify or affirm the judgment * * * appealed from, award a new trial, or grant to either party such judgment as such party would be entitled to' (Code of Civ. Pro., sec. 1337). Treating the verdict as one in favor of the appellant, under the authority of this section, we doubtless would have the power, not only to reverse the judgment against it, but also to order one in its favor dismissing the complaint (Farleigh v. Cadman, 159 N. Y. 169).

"This, however, would result in depriving the plaintiff of any opportunity for relief from an adverse verdict, and while we are now deciding, after careful consideration, that the verdict was unfavorable to him where from theoretically arose the obligation on his part to seek relief from it when it was rendered, still we think that

the situation presented by the action of the jury was so unusual and uncertain that practically it would be too harsh to charge him with this obligation and that a fairer result will be secured by simply awarding a new trial.

"The judgment, therefore, should be reversed and a new trial granted, with costs to abide the event."

For elasticity in relief, this would seem to come as near to what is done in English courts as anything we have seen. It destroys the idea of a judgment being final when it is not appealed from, unless when the case is sent back, and so far as the servant is concerned, a form may be resorted to of finding him liable as a predicate for a verdict against the master with no judgment, however, to be rendered on any verdict that may be entered against him. Furthermore, the court arguing out that inconsistency in a verdict as to one of two joint tort feasors, so far as either is con.. cerned, stands on the same footing as inconsistent special findings of fact as to a single defendant, in their relation to the general verdict, is to carry something new. into decision. And is it true that this is so?

The whole view of the court seems to us wrong, because a verdict and the judgment thereon contain, in themselves, no necessary principle of logical consistency. If two or more joint tort feasors may all be sued, or one or more only may be sued, if is nothing to those who are held that the others are released, and therefore they who are held have nothing to do with a verdict releasing others except to appeal from it.

In this case because a jury's process of reasoning is faulty, so far as two independent parties are concerned, the court says the verdict must be looked upon as "an entirety," when it seems to us that it is not so to be regarded at all. The separate and individual liability of the two defendants was to be considered by the jury in this case and they could not join the two.

All that a court has to do with a verdict of this kind is to see whether, if either defendant was sued alone, a finding either way would have evidence to support it, and the same rule should govern where they are sued together. If the law makes defendants joint tort feasors suable separately, then the case is to be determined as if they had been so sued.

For example, would it not be singular, if the servant had been sued first and a verdict had been rendered in his favor, for the master to be allowed to set up the judgment on that verdict as res judicata of the case against it? Where, we think, the court is in error, is in attaching to the verdict in favor of the servant an inference of law in favor of a third party. All of the inferences in a verdict exhaust themselves as between the immediate parties thereto, to-wit: the plaintiff and the defendant in the case—in this case the plaintiff and the separate defendant. Of course a judgment may have inferences in favor of a third party, but he must have relation by privity to the parties concerned. There is no privity in this case between the two defendants.

NOTES OF IMPORTANT DECISIONS.

COURTS-VENUE OF TRANSITORY ACTIONS.-In Alabama there is a statute which provides that certain actions for injury "must be brought in a court of competent jurisdiction within the State of Alabama and not elsewhere." In a suit brought for such an injury in Georgia, it was held that the entertaining of it does not deny full faith and credit to the Alabama statute. Tennessee Coal & C. Company v. George, 34 Sup. Ct. 687.

Justice Lamar, speaking for the court, said: "Whether the statute be treated as prohibiting certain defenses, as removing common law restrictions or as imposing upon the master a new and larger liability, it is in either event evident, that the place of bringing the suit is not part of the cause of action-the right and the remedy are not so inseparably united as to make the right dependent upon its being en

forced in a particular tribunal. The cause of action is transitory, and like any other transitory action, can be enforced in any court of competent jurisdiction within the State of Alabama. But the owner of the defective machinery causing the injury may have removed from the state and it would be a deprivation of a fixed right if the plaintiff could not sue the defendant in Alabama because he had left the state, nor sue him where the defendant or his property could be found because the statute did not permit a suit elsewhere than in Alabama."

It was further said: "The courts of the sister state, trying the case, would be bound to give full faith and credit to all those substantial provisions of the statute which inhered in the cause of action, or which name conditions on which the right to sue depend. But venue is no part of the right; and a state cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction. That jurisdiction is to be determined by the law of the court's creation and cannot be defeated by the extra-territorial operation of a statute of another state, even though it created the right of action." Justice Holmes dissents.

This argumentation seems somewhat metaphysical. The language and intent of the statute are plain, and, if the state can give the right of action, it would seem it could attach any conditions to its existence it sees fit. The case was said to be controlled by Railroad v. Sowers, 213 U. S. 55, where it was ruled in a transitory action based upon common law principles, a restriction of this kind was invalid, and the claim that a common-law liability was there being enforced, Justice Lamar rather inconclusively answers that the commonlaw liability was a statutory liability in New Mexico, whose statute was being considered. The court spoke of a common-law action and it meant what it said.

CARRIERS-LIMITATION OF LIABILITY FOR LOST BAGGAGE UNDER CARMACK AMENDMENT.-The supreme court has held that the principle in Adams Exp. Co. v. Croninger, 226 U. S. 491, as to limitation of liability regarding freight, applies to baggage of a passenger, Pitney, Associate Justice, dissenting. Boston & M. R. Co. v. Hooker, 34 Sup. Ct. 526.

In this case the schedules filed with the Interstate Commission provided that: "Baggage

liability is limited to personal baggage not to exceed $100 in value for a passenger *** unless a greater value is declared and stipulated by the owner and excess charges thereon paid at the time of checking the baggage." The baggage lost in this case was proven to be worth nearly $2,000. The schedules showed a table of charges for excess weight and excess value.

It was urged that the requirements of the Carmack Amendment that the carrier shall issue a bill of lading shows that it referred to freight and that a baggage check was not a bill of lading, but the majority decision said: "We do not think it was intended to require a departure from this (issuing baggage checks) practice when the matter was placed under regulation by schedules filed and subject to change for unreasonableness upon application to the Interstate Commerce Commission. Such checks are receipts and there is no special requirement in the statute as to their form."

Justice Pitney said: "The language of the enactment shows it was framed in view of the general and familiar practice of embodying in the receipt or bill of lading all the terms of the contract, including the valuation of the goods, and the rules and regulations for limiting the liability of the carrier. *** I cannot agree that the statute leaves the carrier free to give a mere identifying token instead of a 'receipt or bill of lading.' But if I am wrong in this, it seems too clear for argument that, so far as the carrier intends that any of its rules or regulations respecting its responsibility for the baggage are to be imported into the contract, it is incumbent upon it to set them forth plainly in a bill of lading delivered to the shipper or passenger."

This is weighty reasoning and the majority of the court are made to appear to require less in case of loss of baggage than in case of loss of freight.

Justice Pitney further says: "The serious consequences of the present decision are sufficiently manifest. Heretofore shippers and passengers have been entitled to rest in the assurance that a common carrier who accepted their goods for transportation in the ordinary course of a carrier's public employment, became responsible, without any express contract upon the subject, for the full value of their goods ** unless there was a distinct understanding to the contrary, participated in by shipper or passenger." This, it is argued, is all changed. He must possess himself of the tariff schedules "with time enough to scrutinize