Prior to the execution of this agreement, suits had been commenced against some of the companies, other than the plaintiffs in error, in Boston, in one of which the agreement itself is entitled; and the defendant in error had been employed to defend them. After the agreement had been signed, the committee named in it employed the defendant in error on behalf of all the companies parties to it. He testified that the agreement was shown to him and that he accepted the invitation to become the attorney of the companies. The employment was general, no special terms being fixed, and it is not questioned that it was with full knowledge of the agreement between the companies, and according to the authority conferred by it upon the committee. The plaintiff below having proved the fact and value of the services rendered, rested his case, at the conclusion of which and afterward again, after all the evidence had been put in, the defendants below requested the court to instruct the jury to find a verdict for the defendants, on the ground "that the agreement was not one under which any joint liability could be created; that the provisions of the agreement were specific, the parties to the agreement were only to pay severally and pro rata any amount that should become due under the agreement."

This instruction the court refused to give, and that refusal is now assigned for error.

The committee appointed by the agreement between the insurance companies, were special agents only for the purposes and within the limits declared in it. They had no authority to bind their principals beyond its import, and the limits of that authority were made known to the defendant in error when he accepted employment from them. Whatever authority to bind the companies in making that employment had been conferred upon them by the agreement, they in fact exerted. So that the question to be determined is, whether that agreement conferred upon the committee authority to bind the companies joiutly, or jointly and severally, to pay the expenses of the litigation; or whether they became liable, severally only, each for its proper proportion. The contract, it will be observed, is between the companies. No other person is a party. The promises are between them severally. Each binds itself to each of the others. There is no joint undertaking or promise, on the part of all, to any one else. They "mutually covenant and agree to and with each other." They do agree, indeed, that they "will unite in resisting the claim made upon said policies, and on each thereof, and in the defense of any and all suits and legal proceedings that have been or may be instituted against any of said companies upon any of said policies;" but as to the obligation of payment on that account, its nature and extent, the agreement is, that they "will, when and as required by the committee hereinafter mentioned, contribute to and pay the costs, fees, and expenses of said suits and proceedings pro rata; that is to say, each company shall pay such proportion of said costs, fees, and expenses as the amount insured by said company shall bear to the whole amount insured on said property by all the companies subscribing to this agreement." These expressions leave no doubt as to the intention of the parties in regard to the limit of their several liabilities as between themselves.

The management and conduct of this common defense was intrusted to and devolved upon a committee of named persons; and the powers and rights of that committee are expressly defined. They are given full power and authority to employ counsel and attorneys to appear for said companies and each thereof, and defend said suits and legal proceedings, and to employ other persons for other services relative thereto. They are thus constituted the agents, for the

purpose named, of the parties to the contract, and whatever they do within the terms of that agency, which of course is not general, but special, binds the parties according to their agreement. The committee is not a party to the agreement, but derives its powers from it and has rights under it, chiefly the right of reimbursement for expenses and indemnity for obligations legitimately incurred. This right would be implied, if it were not expressed; but if the mode and measure of it are expressly declared, no implication can enlarge its limits. It is in fact, expressly defined. The committee have, by the further provisions of the agreement, also full power and authority "to assess upon and demand and receive from such companies, from time to time, as such committee shall deem proper, such sum or sums of money for the compensation of such counsel and attorneys, and such other persons, and all other expenses of such defense of said suits as said committee shall deem necessary and expedient, such assessment upon and payment by each of said companies to be pro rata, as above mentioned." It is very clear, we think, from this language, that for any advances made by the committee for the expenses of the defense, or for any indemnity against any personal liability they may have incurred in conducting it, they could have no personal recourse upon the companies except by way of assessment upon them severally, each for its own proportion, according to the ratio fixed by the agreement. Such proportion could be enforced by action against each delinquent company. There is no ground on which the companies could be made jointly responsible, so that any one or more could be required to make good the default of any of the rest. The fund for the payment of all the obligations contemplated by the agreement is limited, in express terms, to be raised in the mode pointed out in it by a pro rata assessment upon each for its individual share.

Such being the relation between the several companies and the committee, those employed by the latter for the purposes of the agreement can have no greater rights than such as grow out of it. The agency being special, those who claim under it are bound by its limitations; and in the present case the defendant in error, it is admitted, had actual knowledge of them. So that though the employment by the committee es-tablished a privity between him and the parties to the contract, giving him a right to treat the companies directly as his principals and employers, nevertheless it must be taken to be only to the extent of the authority of the committee under the agreement, and subject to the limitatious imposed by it upon the liability of the companies. He must be considered as relying, if he did not stipulate for the individual liability of the members of the committee, upon their power to raise the fund for the payment of his compensation by the assessment under the agreement; which being made he would have a right to enforce; or which if denied to him wrongfully, would entitle him to his action as if it had been made, or against the committee for not making it. But there is no ground on which he can claim that the employment of the committee imports a joint promise of compensation from the companies, in the face of the express restrictions upon the power of the committee to bind them otherwise than severally, each in proportion to its interest. The defendant in error is and can be in no better position, by reason of the employment by the committee under the agreement between the companies, than the committee would have been if they had made the advances required, or than he would have been if he had been a direct party to that agreement, employed by the companies according to its terms. There is not only nothing in the agreement from which it could be inferred that the companies

were to be sureties for each other, but that inference is expressly negatived by the declaration, according to which each is to be liable for its own separate and proportionate part.

Similar reasoning, leading to like conclusions upon analogous facts, is to be found in many reported cases. We select as illustrations the following: Peckham v. North Parish in Haverhill, 10 Pick. 274: Ludlow v. McCrea, 1 Wend. 228; Ernst v. Bartle, 1 Johns. Cas. 319; How v. Handley, 25 Me. 116; Gibson v. Lupton, 9 Bing. 297; Fell v. Goslin, 21 L. J. Rep. (N. S.) Exch. 14.

In our opinion the court below should have instructed the jury, as requested by the plaintiffs in error, to render a verdict for the defendants below, on the ground that no joint liability had been proven; and its declining to do so was error, for which the judgment is reversed, with directious to grant a new trial. And it is so ordered.

RIGHT OF ATTORNEY TO ADMISSION TO

COURT.

PHILADELPHIA COMMON PLEAS, MARCH 17, 1883.

KEYSER V. FOREPAUGH.

Courts are open to suitors and their attorneys as a matter of right. The duty of an attorney when refused admittance pointed out.

PIERCE, J. The Constitution of Pennsylvania, art. 1, sec. 11, declares: All courts shall be open, and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

The meaning of the words "all courts shall be open," used in the Constitution of the Commonwealth, is that all courts shall be open for the administration of law, right and justice, in controversies between suitors, as matter of right, and not as of grace or favor. It involves, of course, the right of ingress and egress to and from the place where the court is held, to suitors, jurors, witnesses, and every person having business with the court. Also to all officers of the court, especially those who have immediate business with the court, as attorneys, etc. The general public also have the right of admission to the court, as they are largely interested in the public administration of law and justice. But all these rights are subservient to the orderly and peaceful administration of law, without which its administration would be impossible and the courts would be brought into contempt. Therefore they are armed with the power to preserve order, and to summarily punish as contempts all breaches of the peace committed in their presence. And to aid the court in preserving order and for other purposes, officers are appointedwhose duty is to see that there are no obstructions to free transit, the orderly conduct of persons in the court room, and to aid in the general business of the court. But it is a mistake to suppose that when a court room is so crowded that other persons cannot be admitted without producing disorder and inconvenience to those already in the court room, that they have a right to enter without regard to the rights of others and the peaceful administration of the law, unless they enter for purposes immediately connected with the business then before the court or demanding its immediate attention. And this is applicable to attorneys of the court, having no immediate business with the court, as to other persons.

These remarks are induced by a circumstance which occurred at the trial of the recent case of Keyser v.

Forepaugh, before me. The court-room was very crowded, and a member of the bar went to the door for admission of members of the bar, and finding it fastened, went to the door for the admission of suitors, witnesses and the general public. He was informed there that the court was full, and that there was no room for his admission. He avers that there was room for him, and that he had business with one of the counsel then engaged in trying the case. He told the officer in charge of the door that he was a member of the bar, and insisted in going in. The officer told him he could not go in; that there was no room there, and to go to the door for the admission of members of the bar. This he did not do, and attempted to go in against the will of the officer. This the officer resisted, and used sufficient force to put him out. He afterward went in at the door for the admission of the members of the bar.

There are differences of statement as to what occured between the member of the bar and the officer; but the above is a substantial statement of the occur

rence.

This court requires not only a faithful, but a courteous discharge of the duties of its officers to all persous having business with the court, members of the bar, suitors, witnesses, jurors and the public; and any com plaint made against them will always receive the prompt attention of the court. But the members of the bar, so far as relates to their own conduct, are equally bound to preserve the peace of the court as the officers appointed for that purpose. And when in this instance the member of the bar was refused admittance by the officer, his course was to bring the matter to the attention of the judge at the first opportunity, and not to attempt to force his way into the court-room against the will of the officer. To do this was to endanger the peace of the court, and to bring the court and its authority intrusted to its officers into contempt.

For any improper or ungentlemanly language used by the officer, and for refusing to admit the complain. ant to the court-room, if there was room for him, both of which the officer denies, he would be justly censurable and punishable; but redress in the first instance should have been sought from the court, and not by act of the party.

PRIVILEGE OF MEMBER OF LEGISLATURE FROM PROCESS.

ERIE (PENNSYLVANIA) COMMON PLEAS, APRIL 16, 1883.

GREY V. SILL.

consideration the adoption or rejection of the Constitution proposed for the government of the United States by the Federal Convention on the 17th of September, 1787, and during his attendance upon this duty he was served with a summons at the suit of the plaintiff. Upon a motion to quash, Judge Shippen held that the defendant's privilege was from the service of a summons as well as from arrest during the session of the convention and for a reasonable period before and after it. The judge said "the members of the convention elected by the people, and assembled for a great national purpose ought to be considered in reasou, and from the nature and dignity of their office, as invested with the same or equal immunities with the members of General Assembly, met in their ordinary legislative capacity. The Assembly of Pennsylvania being the legislative branch of our government, its members are legally and inherently pospessed of all such privileges as are necessary to enable them with freedom and safety to execute the great trust reposed in them by the body of the people who elected them."

This case was prior to the adoption of the Constitution of 1799, which contained a provision similar to that in our present Constitution. Sec. 15 of art. 2 of the Constitution is in these words: "The members of the General Assembly shall, in all cases, except treason, felony, violation of their oath of office and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to or returning from the same; and for any speech or debate in either house they shall not be questioned in any other place."

It has been urged by counsel that the language of this provision limits the privilege as against arrest only, and does not prevent the service of a summons. But it will be foucd on an examination of the cases that no distinction is made, and that the privilege which, as said by Judge Duncan in the U. S. v. Edme, 9 S. & R. 147," has extended itself in process of time to every case where the attendance was a duty in conducting any proceedings of a judicial nature, has been uniformly held to extend to the ordinary summons as well as a capias, in accordance with a rule laid down in the old case first referred to, that of Bolton v. Martin.

In Wetherill v. Seitzinger, 1 Miles, 237, it was held that a suitor in one county coming into another county to take a deposition was privileged from the service of a summons, and in Holmes v. Nelson, 1 Phil. 217, it was held that a counselor-at-law coming to Pittsburgh from another county to attend to the cases of his clients before the Supreme Court of the State was exempt from the service of a summons in a civil action, in going, remaining, and returning, Judge Lowrie, in delivering the opinion of the court (the District Court of Allegheny count) recognized the privilege of members of Assembly contended for here. But it is contended that the privilege is limited, if it exists at all, to such time as the member of Assembly is either going to, remaining at, or returning from the place of sitting of the Legislature, and that as the defendant here was in neither of these conditions he was not privileged; that he cannot claim exemption while at home attending to his private business.

The affidavit of defendant, which is not disputed, alleges that the Senate is still in session, and that he came home on leave of absence. The privilege does not cease with the arrival of the senator at his home for a visit and attach upon his taking his departure on his return, but is continuous, so long as the Legislature is in session. As said by Judge Shippen in the case in 1 Dallas, already noted: "In the case before us the defendant appears to have been served with a summons out of this court, during the time of the actual sitting

of the convention. Whether we take the law to be as it stood in England, before and after passing the Act of William the Third, or as it stood after the passing of that act, down to the 10th of George the Third, about six years before our Revolution, it is clear that no member of Parliament other than those particularly excepted could be arrested or served with any process out of the courts of law (during the sitting of Parliament; we cannot but consider our members of Assem bly, as they have always considered themselves, entitled by law to the same privileges."

It was urged in the argument that great injustice might be done in holding that the privilege in question extends to writs of summons as well as to arrests-as for example in a case where the statute of limitation might come in, but the very case is found to be provided for and guarded against, a reference to the English law showing that in order to prevent a member of Parliament from taking advantage of the statute of limitations by reason of his privilege, an original might be filed against him, but it must lie dormant during the sitting of Parliament; no process could issue upon it to compel an appearance.

From the authorities it would appear to be plain that the defendant was at the time of the issuing and service of the writ of summons upon him privileged from such service, and the writ must therefore be quashed.

Rule absolute.

COMPROMISE BY PLAINTIFF OF SUIT BROUGHT BY ATTORNEY AND AGREEMENT AS COM

PENSATION.

MISSOURI SUPREME COURT, APRIL, 1883.

KERSEY V. GARTEN.

Plaintiffs agreed with the defendant to conduct a suit in ejectment, he agreeing to pay one-half the value of the land if they were successful; nothing if unsuccessful, and they were to pay the costs if unsuccessful. Defendant compromised the action after brought without consulting plaintiff. Held, that plaintiffs were entitled to recover as if they had been successful.

A

CTION by attorneys to recover fees or compensation for services in an action of ejectment under a contract whereby they were to receive one-half the value of the lands recovered, less a sum named. Defendant in this action compromised the ejectment suit without the consent of plaintiffs. Other facts appear in the opinion.

SHERWOOD, C. J. 1. The objection that the petition does not state that either of the plaintiffs ever obtained a license to practice law, cannot be urged in arrest. The defect is not a fatal one, and is cured by verdict. Inferentially at least, the allegation is made that plaintiffs were duly admitted to the bar.

2. The declaration of law to the effect that the defendant having prevented the plaintiffs from completing their contract by dismissing the suit, they were entitled to recover as if the contract were fully performed on their part, we regard in view of the facts in evidence as correct, and sustained by the authorities cited in behalf of plaintiffs. Mc Elhenny v. Kline, 6 Mo. App. 94; Marsh v. Holbrook, N. Y. Ct. App., 3 Abb. 176; Baldwin v. Bennett, 4 Cal. 392; Meyers v. Crockett, 14 Tex. 257; Hunt v. Test, 8 Ala. (N. S.), 713.

And there is much force in the view that contracts, such as the one before us, are from the nature of the engagement, from the peculiar confidential relations existing between the parties thereto; from the fact that an attorney when discharged by his client is pre

These observations as to the degree of care to be exercised by a railroad corporation in providing and maintaining machinery for use by employees, apply with equal force to the appointment and retention of the employees themselves. The discussion in the adjudged cases discloses no serious conflict in the courts as to the general rule, but only as the words to be used in defining the precise nature and degree of care to be ob served by the employer. The decisions, with few exceptions, not important to be mentioned, are to the effect that the corporation must exercise ordinary care. But according to the best considered adjudications, and upon the clearest grounds of necessity and good faith, ordinary care, in the selection and retention of servants and agents, implies that degree of diligence and precaution which the exigencies of the particular service reasonably require. It is such care as in view of the consequences that may result from negligence on the part of employees, is fairly commensurate with the perils or dangers likely to be encountered. Wabash Railway Co. v. McDaniels. by Harlan, J.

[Decided May 7, 1883.]

Opinion

PATENT-INFRINGEMENT — UNPATENTABLE INVENTION-FARE BOXES-PRACTICE.-(1) It is not a practice unfair to complainants to dismiss a bill for infringement of patents because the inventions described in the patents were not patentable, when no such defense was set up in the answer. The practice was sanctioned by this court in Dunbar v. Myers, 94 U. S. 187. In that case the defense set up in the answer was want of utility in the patented invention; that the patentees were not the first inventors, etc. The Circuit Court rendered a decree for the complainant for a large sum. When the case came to this court the decree was reversed, with directions to the court below to dismiss the bill on the ground, not set up in the answer, that the improvement described in the patent sued on did not embody or require invention and was not patentable, and the patent was therefore void. And in Brown v. Piper, 91 U. S. 44, this court said: "We think this patent was void on its face," (because the improvement described therein was not patentable,) "and that the court might have stopped short at that instrument, and without looking beyond it into the answers and testimony, sua sponte, if the objection was not taken by counsel, well have adjudged in favor of defendant.'. (2) The putting of an additional pane of glass in a fare box used on street cars and omnibuses where one glass had before been used and lighting the interior of the box by the head-light of the car, held not an invention entitling to a patent. It would occur to any mechanic engaged in constructing fare boxes, that it might be advantageous to insert two glass panes, one next the driver and the other next the interior of the car. But this would not be invention within the meaning of the patent law. Hotchkiss v. Greenwood, 11 How. 237; Phillips v. Page, 24 id. 167. It is not a combination of the fare box, having one glass panel with an additional glass panel, but is a mere duplication of the glass panel. Doubtless a fare box with two glass panels is better than a fare-box with only one. But it is not every improvement that embodies a patentable invention. This rule was fairly illustrated in Stimpson v. Woodman, 10 Wall. 117, in which it was held that where a roller, in a particular combination, had been used before without particular designs on it and a roller with designs on it had been used in another combination, it was not a patentable invention to place designs on the roller in the first combination, and that such a change, with the existing knowledge in the art, involved simply mechanical skill, which is not patentable. A case much in point was decided by this court at the present term-Atlan

tic Works v. Brady-in which Bradley, J. said: "The design of the patent laws is to reward those who make some substantial discovery or invention which adds to our knowledge and makes a step in advance in useful arts. It was never their object to grant a monopoly for every trifling device, every shadow of a shade of an idea which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures." And it was held that the placing of a screw for dredging at the stem of a screw propeller, when the dredging had been previously accomplished by turning the propeller stern foremost and dredging with the propelling screw, was not a patentable invention. Slawson v. Grand Street, Prospect Park & Flatbush Railroad Co. Opinion by Woods, J. [Decided April 23, 1883.]

JURISDICTION-PROCEEDING AGAINST REVENUE OFFICER-WHO IS SUCH OFFICER-REMOVAL OF CAUSE.

Section 643, U. S. R. S., applies not only to officers appointed under or acting by authority of any revenue law of the United States, or any person acting under the authority of such officers, but it can be extended to embrace the case of United States marshals or their deputies or assistants, when they are engaged in the service of process issued for the arrest of parties accused of violation of the revenue laws of the United States, and a prosecution in the State court against them can be removed to the Federal court. A marshal or deputy marshal of the United States is, it is true, not an officer appointed under a revenue law; but when engaged officially in lawful attempts to enforce a revenue law, by the arrest of persons accused of offenses against it, he is an officer acting under the authority of that law; for it is that law under which is issued the process, which constitutes his authority for his official action. There is, indeed, the general law, prescribing the nature of his duties, which requires him faithfully to execute all lawful process placed in his hands for that purpose; but when process, issued under a particular law, is lawfully issued to him for service, in executing it, he is acting under the authority of that law, without which the process would not be valid. It is that law which he would be compelled to rely on as his justification if he was sued as a trespasser for executing the process issued for its inforcement. And the protection which the law thus furnishes to the marshal and his deputy also shields all who lawfully assist him in the performance of his official duty. Davis v. State of South Carolina. Opinion by Mathews, J.

[Decided April 23, 1883.]

REMOVAL OF CAUSE PARTIES AND RESIDENCE.Where full relief cannot be forded without the presence of all the parties to the suit, and some of the defendants are citizens of the same State, with plaintiff, the suit is not removable to a Federal court even though the principal defendant in interest is a citizen of a different State. See Hyde v. Ruble, 104 U. S. 407; Winchester v. Loud. Opinion by Waite, C. J. [Decided March 19, 1883.

REMOVAL OF CAUSE-CITIZENSHIP.-A suit cannot be removed from a State court under the act of 1875, unless the requisite citizenship of the parties exists both when the suit was begun and when the petition for removal is filed. Gibson v. Bruce. Opinion by Waite, C. J.

[Decided May 7, 1883].