of Tyler against Gardener, in which Mrs. Tyler, wife of President John Tyler, brought suit against her brother over their mother's will. Mr. Watson represented the appellant, the opposing counsel being the Hon. William M. Evarts. The Court of Appeals decided in favor of Mr. Watson's client, reversing the General Term. Botes of Cases. Joint Tort Feasors. In Grundel v. Union Iron Works, decided by the Supreme Court of Cali The United States Court of Claims, on February 26, 1900, rendered its decision on the claim preferred by Admiral Dewey, his officers and men, for naval bounty under section 4635 of the Revised Statutes of the United States, for the destruction of the Spanish fleet in Manilla Bay on May 1, 1898. The claim made was for $200 for each person on the Spanish fleet, upon the presumption that in determining the question of the superiority of the enemy's fleet, the shore batteries, torpedoes and mines should be taken into consideration. The contention of the government was that the statute having failed to provide for the contingency of the co-fornia in January, 1900, it was held that the fact operation of the land batteries with the naval forces destroyed, the court possessed no power to supply the omission. The decision of the court was to the effect that the claimants were entitled to recover the sum of $100 for each person on board the enemy's ships; that the statute was applicable only to the force of the vessels engaged in the action and that, taking the number and character of vessels into account, the strength of their batteries and all other matters which properly go to the determination of the actual fighting strength of the opposing fleets, that of the United States clearly was superior. Under the decision the share of Admiral Dewey in the amount awarded has been computed at $9,570. It is understood that the claimants will take an appeal to the Supreme Court of the United States. that some of the defendants, in an action in a State court for the wrongful death of plaintiff's intestate on a sailing vessel, had made application, as the owners of the vessel, to a Federal court, for a limitation of their liability under the United States statutes relating to the merchant marine, and that the Federal court had enjoined plaintiff from further proceedings in the State court against these defendants, is not a bar to the plaintiff proceeding in the latter court against the other defendants, where he has received no satisfaction The court said in for the wrong complained of. part: The question presented on the appeal is whether the plaintiff, with a cause of action alleged in the complaint to be for $50,000 damages, is barred from recovery of a proper measure of damages, as against the respondents herein, in consequence of the proceedings in the Federal court by the nine defendants, the owners of said vessel, in which their liability is limited to the appraised value of said vessel. The plaintiff has not actually received satisfaction in any amount, nor what in law is deemed the equivalent of satisfaction. The law as to the liability of joint tort feasors is thus followed in America is that the liability of two or more persons who jointly engage in the commission of a tort is joint and several, and gives the same rights of action to the person injured as a ment recovered against one of two joint tort feasors, remaining unsatisfied, is no bar to an action against the other for the same tort." (2 William Watson, whose death at the ad-stated by Black on Judgments: "The general rule vanced age of 93 years occurred recently, in Manhattan, was, next to the Hon. Benjamin D. Silliman, probably the oldest lawyer in Greater New York. Mr. Watson was grad-joint and several contract. Consequently, a judguated from Yale in 1829, was admitted to the bar four years later, and until about five years ago had continued the practice of his Black, Judgm., sec. 777.) Judge Cooley, in his profession uninterruptedly a period of work on Torts (2d ed., p. 159), says: “The rule more than sixty years. From 1842 to 1845 laid down by that eminent jurist, Kent, in Livhe was Assistant United States District At-ingston v. Bishop (1 Johns. 290), which has since torney, under that great lawyer, Ogden Hoffman. During his long and brilliant legal career at the bar Mr. Watson was counsel in numerous causes celebres, including that been generally followed in this country, is that the * * * in respect to the point above considered, where the bar accrues in favor of some of the wrongdoers, by reason of what has been received from or done in respect to one or more of the others, that the bar arises not from any particular form that the proceeding assumes, but from the fact that the injured party has received satisfaction, or what in law is deemed the equivalent." In Dawson v. Schloss (93 Cal. 199, 29 Pac. 31) the plaintiff had recovered a judgment in the sum of $5,000 against Schloss and Hinkle in an action for malicious prosecution. A new trial was granted as to defendant Schloss, which resulted in a verdict and judgment against Schloss for $3,000, and he appealed from the judgment. At the time of the second trial, the original judgment for $5,000 against Hinkle was of record and unsatisfied. It was contended by the appellant that no judgment should have been rendered against Schloss on the new trial, so long as the original judgment existed against Hinkle; that, while separate suits may be brought against each of several joint tort feasors, yet, if the defendants are sued jointly, there can be but one verdict and judgment. This court answered this contention that "such is not the prevailing rule in the United States," quoting from Judge Cooley the above cited paragraph. The court, continuing, says: "There is no pretense that any part of the judgment against Hinkle has been paid or satisfied, or even that execution has been taken out upon the judgment." Nichols v. Dunphy (58 Cal. 605) was an action in tort. A judgment had been obtained against defendants. One of the defendants appealed and secured a reversal of the judgment. Thereupon the other defendant, against whom execution had been taken out, moved for an order quashing the execution. That motion was granted, on the theory that there could not be a several judgment when the action had been joint. Discussing the action of the court below, this court says: "We think the court erred in quashing the execution against Carmen. The judgment against her was unaffected by the appeal of her codefendant and the subsequent proceedings thereon." In Butler v. Ashworth (110 Cal. 614, 43 Pac. 386) it is said: "If one be injured by a tortious act, he is entitled to compensation for the injury suffered, and if several persons are guilty in common of the tort, the injured one has his right of action for damages against each and all of the joint tort feasors, and may, at his election, sue them individually or together." In case one of the wrongdoers has become bankrupt or insolvent, the effect as to him would be to limit the liability to the available assets of his estate, which might be merely nominal. His bankruptcy proceeding, however, would not have the effect of discharging the solvent wrongdoers. Nothing short of satisfaction in some form constitutes a bar in a proceeding like the present. Towns Pollution of Stream. In Watson v. Town of New Milford, decided by the Supreme Court of Errors of Connecticut in January, 1900, it was held that where a town discharges sewage from its public buildings into a stream which deposits the same on plaintiff's land, it cannot escape its share of liability therefor by showing that others more largely than it contributed to the nuisance. The court said in part: Towns may build town houses and any necessary outbuildings (Gen. St., sec. 130; White v. Town of Stamford, 37 Conn. 578, 586). If by connecting with a sewer they can save the expense of outbuildings, or better accomplish the purposes these might otherwise serve, a reasonable construction of the statute gives them the right so to do. School districts have similar powers, and in case of consolidation the town succeeds to the possession of their property and the responsibilities attaching to such possession (Id., tit. 35, cc. 135, 136; Pub. Acts, 1893, p. 410, c. 245). A building owned by a municipal corporation could not be relieved of the rain water falling upon the roof by precipitating it through a spout upon the lands of adjoining proprietors. Their rights may be equally invaded by the discharge of sewage from it upon their premises. In these respects a municipality has no greater immunities than any private landowner. A nuisance was created upon the plaintiffs' land by the deposit of sewage, and sediment from sewage, offensive from its appearance or its smell. The use of the sewers which receive the surface drainage from highways, and of that built by the village improvement association, by the defendant, to carry off the sewage from its public buildings, contributed to this injury. That others also contributed to it, and perhaps more largely, did not relieve the town from liability (Morgan v. City of Danbury, 67 Conn. 484, 496, 35 Atl. 499). That the plaintiffs suffered no personal inconvenience from the nuisance, because they did not reside in the vicinity, is immaterial. They were entitled to nominal damages, at least, for the offensive condition of things upon their land, even if they never visited it, and although its rental and selling value remained unimpaired (Watson v. Water Co., 71 Conn. 442, 42 Atl. 265). If those assessed can be regarded as substantial, they are still so small in amount that no new trial should be granted for their reduction (Buddington v. Knowles, 30 Conn. 26; Holbrook v. Bently, 32 Conn. 508). assembly of the State, while sitting in regular session at the seat of government, and to convene it at another time and a different place in the State, when there is no disagreement between the two houses with respect to the time of adjournment. The facts necessary in order to determine this question may be briefly stated. The general assembly of the commonwealth of Kentucky, pursuant to the mandatory requirements of the Constitution, met on the first Tuesday after the first Monday in January, 1900, that is, on January 2, and its session was being regularly held at the seat of government in the city of Frankfort on January 30, when the governor gave a proclamation summarily adjourning the general assembly to meet at London, Laurel county, Kentucky, on February 6. The following is a copy of the proclamation: STATE OF KENTUCKY, Observe that it is recited in the proclamation insurrection" was prevailing in that a state of the State of Kentucky, and especially in Frankfort, the capital thereof. The language of the address to the people is merely that the condition of the city was at that time one of excitement and threatened violence." It is not asserted that there was any war or pestilence" at Frankfort at that time, and what was in the proclamation 66 To the General Assembly of the Commonwealth of called "insurrection" seems not to satisfy any Kentucky: accepted legal definition of the word. It may well be doubted, therefore, whether there was as a matter of fact any insurrection in the city or State at the time of the giving of the proclamation. If there was no war, insurrection or pestilence, and if there was no disagreement between the two houses with respect to the time of adjournment, it is admitted that the governor would not have any constitutional power or authority to adjourn the WHEREAS, A state of insurrection now prevails in the State of Kentucky, and especially in Frankfort, the capital thereof, by virtue of the authority vested in me by the Constitution of Kentucky, I do hereby, by this proclamation, adjourn at once the General Assembly of the State of Kentucky, to meet at London, Laurel county, Ky., Tuesday, the 6th day of February, 1900, at 12 o'clock M. Given under my hand at Frankfort, Ky., this regular session of the general assembly, and con30th day of January, 1900, at 9 o'clock P. M. To the People of Kentucky: The most lamentable condition of affairs ever experienced by our people has rendered prompt action on the part of the chief executive of the State absolutely necessary. A long series of unprecedented and unlawful acts practiced by those in charge of the legislative interests of the State has culminated in the most fearful condition of the period to the State. The dreadful tragedy, which occurred yesterday and shocked and startled all, can be no more sincerely deplored by any one than by myself. To attempt to legislate under such conditions of excitement and threatened violence vene it at another time and a different place. For the purposes of the present inquiry, however, it will be assumed as a fact that insurrection was actually prevailing in the State and city on January 30, when the governor gave his proclamation; also that Taylor was in law and in fact governor of the State; and also that there was no disagreement between the two houses with respect to the time of adjournment. Thus arises the question of the constitutional authority of the governor to adjourn the legislature of the State while sitting in regular session at the seat of government, and to convene it at another time and place within the State, and in the mean time by force of arms to prevent it from meeting at the seat of government, when there is no disagreement between the two houses with respect to the time of adjournment. The answer to this question depends upon a proper construction of the provisions of the Constitution of Kentucky. By the Constitution of Kentucky, adopted September 28, 1891, in effect on January 30, at the time when the proclamation was given, no power to suspend laws can be exercised unless by the general assembly or its authority. The powers of the government of the commonwealth are by that organic law divided into three distinct departments, and each of them confined to a separate body of magistracy, to wit, those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person or collection of persons, being of one of those departments, can exercise any power properly belonging to either of the others, except in the instances expressly directed or permitted in the Constitution. The governor stated generally in his proclamation and in his address to the people that his action in adjourning the general assembly, while sitting in regular session at the seat of government, to convene at another place within the State, was "by virtue of the authority vested in him by the Constitution" and "in the exercise of his constitutional powers." It was stated by the counsel to the governor that his action was based on section 36 of the Constitution. Section 36 of the Constitution relates to the regular or general sessions of the general assembly, and is as follows: "The first general assembly, the members of which shall be elected under this Constitution, shall meet on the first Tuesday after the first Monday in January, 1894, and thereafter the general assembly shall meet on the same day every second year, and its sessions shall be held at the seat of government, except in case of war, insurrection or pestilence, when it may, by proclamation of the governor, assemble, for the time being, elsewhere." By subsequent sections of the Constitution a smaller number than a majority of the members of each house of the general assembly is given power to adjourn from day to day; and during the session of the general assembly neither house is allowed to adjourn, without the consent of the other, for more than three days, nor to any other place than that in which it may be sitting; and all orders, resolutions or votes in which the consent of both houses may be necessary must be presented to the governor for his approval or disapproval, except on questions of adjournment. The duration of the sessions of the general assembly is limited by the Constitution to sixty legislative or calendar days, exclusive of Sundays and legal holidays. Section 80 of the Constitution, which is the one that contains the provision as to the extraordinary or so-called extra or special sessions of the general assembly, provides as follows: "He [the governor] may, on extraordinary occasions, convene the general assembly at the seat of government, or at a different place, if that should have become dangerous from an enemy or from contagious diseases. In case of a disagreement between the two houses with respect to the time of adjournment, he may adjourn them to such time as he shall think proper, not exceeding four months. When he shall convene the general assembly it shall be by proclamation, stating the subjects to be considered, and no others shall be considered." The seat of government is by mandatory provision of the Constitution made to continue in the city of Frankfort. 66 Now, observe that section 36 of the Constitution of Kentucky provides, among other things, in substance that the general assembly shall meet on the first Tuesday after the first Monday in January every second year, that is, in the year 1900 on January 2, and that its sessions shall be held at the seat of government. There is a similar clause in the Constitution of the United States, providing that "the congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day." So Story says: Annual parliaments had long been a favourite opinion and practice with the people of England; and in America, under the colonial governments, they were justly deemed a great security to public liberty. The present provision could hardly be overlooked by a free people, jealous of their rights; and therefore the Constitution fixed a constitutional period, at which congress should assemble in every year, unless some other day was specially prescribed. Thus the legislative discretion was necessarily bounded; and annual sessions were placed equally beyond the power of faction, and of party, of power, and of corruption." So the Constitution of Kentucky fixed a constitutional period at which the legislature should assemble every second year. Thus the legislative discretion was necessarily bounded, and biennial sessions were placed beyond the power of the general assembly to change. But this mandatory provision of the Constitution is addressed as well to the governor as to the legislature and the courts; so the regular sessions of the general assembly must be held every second year in January, and the executive is not allowed to interfere with the time of their deliberations. But the further provision of section 36 of the Constitution of Kentucky is: "Except in case of war, insurrection or pestilence, when it may, by proclamation of the governor, assemble, for the time being, elsewhere." Note the language of the exception: In case of insurrection "it [that is, the general assembly] may, by proclamation of the governor, assemble, for the time being, elsewhere." The language is “may assemble;” that is, is permitted to assemble, has liberty to assemble. This language is permissive and discretionary; and, as section 36 is dealing with the legislative power under the Constitution, and defining and prescribing the rights and duties of the general assembly, the power to assemble for the time being elsewhere is a grant to that body, and not to the executive, whose duties and powers are defined by later provisions of the Constitution. The pro vision is not that the governor may by proclamation "convene" the general assembly elsewhere than at the seat of government in case of insurrection. Nor is there any provision whatever that the governor may "adjourn" a regular session of the general assembly in such case. The words "convene" and "adjourn" do not appear in the section at all. For the general assembly in case of insurrection to "assemble" in its discretion for the time being elsewhere than at the seat of government is one thing. For the governor in such case by his proclamation to command the general assembly summarily to "adjourn" while sitting in regular session at the seat of government, and to "convene" at another time and a different place in the State, when there is no disagreement between the two houses with respect to the time of adjournment, is another and quite a different thing. One is the voluntary exercise of discretion by the legislative power over its regular sessions, which discretion is expressly confided to it by the Constitution. The other is an arbitrary interference by the executive with the time and place of the deliberations of the legislature, and an encroachment on the part of the governor upon the legislative independence, which was meant by the framers of the Constitution to be guarded against when they divided the government of the commonwealth into three departments, and expressly provided that no person being of one of those departments should exercise any power properly belonging to either of the others. tive. The Constitution intends that the two coordinate departments of the government shall act in harmony in the performance of their respective functions. In case of war, insurrection or pestilence, the concurrence of both powers of government is necessary in order to effect a constitutionally valid meeting of the general assembly for the time being elsewhere than at the seat of government. The general assembly has no authority in such case to meet for the time being elsewhere, unless the governor by his proclamation shall make known the existence of war, insurrection or pestilence. But the function of the governor is limited to an official declaration of the existence of the condition essential to a change of place of meeting. The governor has no authority in such case to adjourn a regular session of the general assembly at the seat of government and order it to convene for the time being elsewhere, the power of assembling elsewhere being confided by plain language of the Constitution to the discretion of the general assembly, when once war, insurrection or pestilence has been proclaimed. And finally, the language of the provision is that the legislature may assemble "for the time being elsewhere." That is to say, it must meet on the first Tuesday after the first Monday in January, and must hold its session at the seat of government. If, however, before or during its session insurrection shall break out, and if the governor proclaims that fact, the legislature may assemble at another place, but must still meet at the constiBut it may be suggested that the language of tutionally appointed time. The general assembly the exception is that the general assembly may, ought to be in session in case of war, insurrection "by proclamation of the governor," assemble, etc. or pestilence breaking out, and the Constitution of Thus the question arises, What is meant by the the commonwealth contemplates that it shall be clause "by proclamation of the governor?" A in session in such case. This is the reason for the proclamation is a written or printed document, grant of power to the governor to convene the usually issued by the executive power of the gov- general assembly on extraordinary occasions, such ernment, causing certain public matters to be pub- as the breaking out of insurrection. The Constilished or made known. Thus, on the breaking tution of Kentucky expressly provides that the out of war it is usual for the president of the general assembly may contract debts to repel inUnited States to issue a proclamation announcing vasion, suppress insurrection, or if hostilities are the actual existence of hostilities. So, also, in threatened provide for the public defense. Public courts of law the declaration made by the crier, policy and the general welfare require that when by authority of the court, that the court has opened the State is invaded, or arms borne against the or adjourned, as the case may be, is a proclama- government, or hostilities threatened, the legistion, that is, an official declaration of the actual | lature shall meet so as to supply means for repellexistence of a fact, or happening of an event. So, ing the invasion, suppressing the insurrection, and when the Constitution of Kentucky provides that providing for the public defense. The legislature "in case of war, insurrection or pestilence" the must assemble for the time being, but it may hold general assembly "may, by proclamation of the its sessions elsewhere than at the seat of governgovernor, assemble, for the time being, elsewhere," ment if the safety of its members demands a it means that the general assembly may exercise change of place of meeting. It was never contemits discretion to assemble for the time being else- plated by the framers of the Constitution of Kenwhere, provided the governor shall by his procla- tucky that there should be a dissolution of a mation publish and make known to them the fact regular session of the general assembly of the that war, insurrection or pestilence has actually commonwealth in the event of war, pestilence or broken out at the seat of government. In other insurrection breaking out at the seat of governwords, the executive is a check upon the legisla- ment; on the contrary, the Constitution contemture and the legislature a check upon the execu- plates, as above stated, that in such case the |