to his remedy against him." [This would overturn Denton v. Noyes, as, in that case, no process was served, and it makes another exception to the early rule.] The reason given is, that the plaintiff is without blame, and the defendant is guilty of negigence by not appearing and making defence by his own attorney, if he has any defence, on the merits. But, on the other hand, "if the plaintiff, without serving the defendant, accepts the service of an unauthorized attorney for the defendant, he is not wholly free from the imputation of negligence; the law requires him to give notice to the defendant by serving the writ, and he has not done so. The defendant, therefore, is wholly free from blame, and the plaintiff not: so we must set aside the plaintiff's judgment." This case (Bayley v. Buckland) was very fully considered, and the prior cases called to the attention of the court. The distinction taken is a reasonable one; and if any part of the early rule shall stand, it should, in our judgment, do so only as thus modified. Those inclined to pursue the subject further in the light of modern English adjudications, may consult Doe v. Eyton, 3 B. & Ad. 785; Hubbard v. Phillips, 13 M. & W. 702 (1845), 14 L. J., N. S. 103, Exch.; Williams v. Smith, 1 Dowl. P. C. 632, 5 Id. 305; Murdy v. Newman, 1 Cr., M. & Ros. 402 (1834); Morgan v. Thome, 7 M. & W. 400; Hambridge v. De La Crouée (follows 1 Salk. 88, but engrafts another exception), 3 M., G. & S. 742 (1846) (E. C. L. R. vol. 54); Stanhope v. Firman (where the C. B. recognises 1 Salk. 88), 3 Bing. N. C. 303; s. c. 32 E. C. L. 145, and 5 Dowl. P. C. 357, A. D. 1836, prior to Bayley v. Buckland. SEC. 9. The true view on principle and modern authority. In Shelton v. Tiffin, the United States Supreme Court practically overturns the early English rule and Denton v. Noyes. That case stated. Injured party relieved, not only from the judgment, but from sales under it. On principle, and in view of the tendency of modern judicial opinion, we have but little hesitation in stating the true rule of law to be that a party not served, who has been represented by an unauthorized attorney, has a right to be relieved against the judg ment on motion or by bill in equity, and that this right does not depend upon the ability of the attorney to respond in damages. (See authorities cited at end of Section 4, supra, and especially Shelton v. Tiffin and Harshey v. Blackman.) A yet more difficult question is whether such a judgment is, as to all persons and for all purposes, an absolute nullity. Suppose property has been sold under it to third persons for value and without notice, is the party whose property has been sold entitled, as to them, to have the judgment treated as a nullity? In our opinion he is thus entitled, in case he has not been negligent and can clearly establish that there was no notice or service, and that the attorney's act in representing him was wholly without his knowledge, and totally without his authority. We base this conclusion upon the following reasons:— 1. Such would be the rule of the civil law. As applicable to this question, the civil law acts upon the maxim or principle, Inter alios acta vel judicata aliis non nocere. That a judgment or decree under such circumstances would be an absolute nullity, see Code, VII., tit. LX., LVI.; Dr. Linde's Lehrbuch of German Civil Proceedings, sec. 116; Code de Proce. Civ., tit. XXIII.; Poth. Cour. de Mand., sec. 130; 6 John. 314, 315, per VAN NESS, J.; Ridge v. Alter, 14 La. Ann. 866; Id. 3. 2. This conclusion is fully warranted and supported by the decision of the Supreme Court of the United States in the important case of Shelton v. Tiffin, 6 How. U. S. Rep. 163, a. D. 1848.1 In this case the facts were briefly these: Two citizens of Virginia (Mosely and Bouldin), sued in the Circuit Court of Louisiana, John M. Perry, a citizen of Louisiana, and who was served, and also Lilburn P. Perry, a citizen of Missouri, and who was not served. One Crawford, a regularly admitted attorney of the court, employed by John M. Perry, filed an answer for both Perrys, but was not authorized to do so by Lilburn P. Perry. His filing an answer for Lilburn was by mere inadvertence, and not through intentional fraud. The plaintiffs in that action (Mosely and Bouldin) were innocent of any fraud or of any collusion with Crawford, and on a regular trial obtained a judgment for $7560, on which execution issued, and certain property of Lilburn P. was seized and sold to one Anderson. This property consisted of notes secured by mortgage, and of which Anderson was the maker. The cause was brought in equity in the Federal Court of the same 'state (Louisiana), for relief against the judgment and sheriff's sale. The court held, 1st. That the proper remedy was in equity and not necessarily at law. 2d. That Crawford's (the attorney) evidence that he had no authority from Lilburn P. Perry to appear for him was competent. The court observing "This evidence does not contradict the record, but explains it. The appearance was the act of the This latter case has recently been approved and its doctrine followed in Harshey v. Blackman, 19 Iowa Rep., where the subject underwent a full examination; and it was held that a sale, though to a purchaser without notice, under a void judgment, did not have the effect to validate it. See also authorities cited in Section 4 of this article. It is admitted that a large degree of sanctity must be attached to the records of courts; that it is incumbent on a party assailing them, on the ground of the want of authority in the attorney to appear, to make out a clear and unmixed case. Public policy requires this, in view of the fact that it is easy for one party, especially after the lapse of time, to deny the attorney's authority, and difficult for the other party to show the authority, even if it existed. The inference from this, however, is, not to hold the unauthorized judgment valid, but to require the party assailing it to show clear merits, to take prompt action, and to establish his right by cogent and strong evidence. A judgment itself is a mere chose in action. A purchase of it before a sale under execution, like the purchase of any other chose in action, puts the counsel, and not of the court. Had the entry been that L. P. Perry came personally into court and waived process, it could not have been controverted." [See as to recitals in record, well reasoned judgment of MARCY, J., in Starbuck v. Murray, 5 Wend. 148 (1848); Dozer v. Richardson, 25 Geo. R. 90; Kimball v. Merrick, 20 Ark. 12; Hess v. Cole, 3 Zabr. 116; Watson v. The Bank, 4 Met. (Mass.) 343; Id. 333. Compare Holbert v. Montgomery, 5 Dana 11.] "But an appearance by counsel who had no authority to waive process, or to defend the suit for L. P. Perry, may be explained." The court held 3d. That the judgment, and sale under it, were absolute nullities. 66 Respecting this point the language of the court is clear, and decided :— An appearance by counsel under such circumstances to the prejudice of a party subjects the counsel to damages: but this would not sufficiently protect the rights of the defendant. He is not bound by the proceedings, and there is no other principle which can afford him adequate protection. The judgment, therefore, against L. P. Perry must De considered a nullity, and consequently did not authorize the seizure and sale of his property. An execution sale under a fraudulent judgment is valid, if the purchaser has no knowledge of the fraud. But in this case L. P. Perry was not amenable to the jurisdiction of the Court, and did no act to authorize the judgment. He cannot, therefore, be affected by it, or by any proceedings under it. In this view it is unnecessary to consider the objection to the procedure under the execution." * * * * "The judgment being void for want of jurisdiction in the Court, no right passed to Samuel Anderson under the marshal's sale." (6 How. pp. 163, 186-7). This case practically overturns Denton v. Noyes, and accords with Robson v. Eaton and Bayley v. Buckland. purchaser in the shoes and subjects him to the equities (if any) against the assignor thereof: McJilton v. Love, 13 Ill. 495, and cases cited; Cook & Sargent v. Burtis, 16 Iowa 194; Ballinger v. Tarbell, Id. 491; Crocker v. Isett, 18 Id. Why should a purchase under it have any greater effect? But the doctrine that the judgment is a nullity should be strictly limited to cases where there has been no service, and where there is a total want of jurisdiction in the court, and a total want of authority on the part of the attorney to appear. It should not be extended to cases where an attorney, who has been retained or regularly employed, has simply exceeded his authority. J. F. D. RECENT AMERICAN DECISIONS. Court of Appeals of Maryland. THE STATE OF MARYLAND, TO THE USE OF MARY COUGHLAN, Distinction between Passengers and Strangers.-Railway companies owe a higher degree of watchfulness and care to those sustaining the relation of passengers, than to mere strangers having no fiduciary relations with the company. Distinction further defined.-In the former case the utmost care and skill is required, in order to avoid injuries; but in the latter case, only such as skilful, prudent, and discreet persons, having the management of such business in such a neighborhood, would naturally be expected to put forth. Negligence of Plaintiff.—The plaintiff cannot recover for an injury resulting from the negligence of the defendant, if, notwithstanding such negligence, he might have avoided the injury by the exercise of care and prudence on his part, or if his own want of such care and prudence or that of the party injured, in any way contributed directly to the injury. Damages. In a case where the mother is to be compensated for the injury or loss consequent upon the death of her infant child, the shock or suffering of feelings is not to be taken into the account, but only the pecuniary loss, and that i not to be extended beyond the minority of the child. THE Baltimore and Ohio Railroad Company were the owners of a track on Locust Point, in the City of Baltimore, and used a locomotive for the regulation of the trains, picking up empty cars and uniting them to be sent out on the main track. On the occa sion in question, a train had been formed in this manner, consisting of many cars, and was being backed at a very slow speed round a curve, on which were houses that prevented the engineman from seeing the back of the train or the end car. Two boys, playing in the neighborhood, who saw the train in motion, ran to get a ride on the last car, catching hold of the bumper and with their feet on the brake bar. A jolt threw one off and he was killed, while the other was badly injured, losing a part of one hand. It was in proof that these boys had again and again been driven from the cars on other occasions, and their parents informed of their conduct. It was admitted that there was no employee of the company on the end car, and that the engineman and conductor did not know of the accident till some time after it happened. The opinion of the court was delivered by BOWIE, C. J.-These are cross-appeals in an action institute'l under the 1st and 2d sections of Article 65 of the Code, by the state for the use of a widowed mother, whose son was killed under the circumstances detailed in the bill of exceptions. After evidence was offered by both parties, a series of prayers was submitted by each, all of which were rejected and other instructions given by the court instead thereof. To which rejection, and the instructions given, the plaintiffs and defendants severally excepted. The counsel of the defendants having filed in these causes a declaration in writing, that, in the event of an affirmance of the judgment as against the plaintiffs on their appeal in the first case, the defendants will abandon their exceptions, it is proper first to inquire whether the appellants have been aggrieved by the action of the court below. The General Assembly of this state in the year 1852, finding the common-law maxim, "Personal actions die with the person," unsuited to the circumstances and condition of the people, enacted a law entitled "An act to compensate the families of persons killed by the wrongful act, neglect, or default of another person." To make its design more obvious, the fourth section provides, "the word person shall apply to bodies politic and corporate." and "all corporations shall be responsible, under this act, for the wrongful acts, neglect, or default of all agents employed by them." |