other, is by inquiring whether it rests upon one or several acts or agreements. In the case of torts, each trespass or conversion of fraud gives a right of action, and but a single one, however numerous the items of wrong or damage may be. In respect to contracts, express or implied, each contract affords one, and only one, cause of action." The case of Baird v. U. S., supra, arose on a contract to furnish the United States 15 locomotive engines, in 1864, at a fixed price, with the addition of any advance that might take place in the cost of labor and materials used in their construction after November 9, 1863, and any damage resulting from the preference given in this order over other contracts. The engines were duly delivered, and the fixed price paid. A claim was also presented for the advance in labor and materials, which was audited, and about two-thirds thereof allowed and paid. Subsequently an action was brought in the court of claims for the damages sustained in giving preference to the government order, in which judgment was given against the United States. On May 2, 1870, another action was brought in the court of claims to recover the "residue of the amount of the advance in labor and materials," in which, although the court found that the advance, over and above the amount paid, was the sum claimed, there was judgment for the defendant. Thereupon the claimant appealed to the supreme court, where the judgment was affirmed, the court holding that the claims for construction, advance, and damage were all embraced in one contract, and constituted but one demand and cause of action. In the course of the opinion Mr. Chief Justice WAITE said: "Here was a contract by which the government was bound to pay for the engines in accordance with terms agreed upon. The entire price to be paid was not fixed. A part was contingent, and the amount made to depend upon a variety of circumstances. When the former action was commenced in the court of claims the whole was due. Although different elements entered into the account, they all depended upon and were embraced in one contract. The judgment, therefore, for the part then sued upon, is a bar to this action for the residue.'' In Reformed P. D. Church v. Brown, supra, the defendant's testator had agreed in writing to pay the sum of $100 a year for the support of a minister of the gospel, in the township of Westfield, Staten island. At the testator's death four years' subscription were due on the writing, on which nothing had been paid. The plaintiff then sued the defendant, as executor, for the first $100 due on the writing, and had judgment therefor, and on the day following brought an action to recover the remaining three years' subscription. The court held that the judgment in the first action was a bar to the second one, saying: "In order to avoid multiplicity of actions, the law forbids that a cause of action shall be split up for the purpose of bringing several actions. But when several claims, payable at different times, arise out of the same contract or transaction, separate actions can be brought as each liability inures. Still, however, if no action is brought until more than one is due, a recovery in the one first brought will be an effectual bar to a second action brought to recover the other claims that were due when the first was brought." Taking the application of the rule, as made in these cases, it is clear that the plaintiff's demand or cause of action against the defendant for services rendered the trust investment company, as an attorney, and the demand or cause of action for similar services rendered itself, were, as they existed on February 12, 1883, the day on which the former action was commenced, entire and indivisible. Shortly, it appears from the plea that the plaintiff alleged in the former action, as the cause thereof, that he was appointed or employed as the standing attorney of the trust investment company from January 1, 1876, to January 1, 1880, when it was merged in the defendant, for whom he continued to act in the same capacity until January, 1882. Assuming, as I have, that there was a distinct contract or employment by each corporation, though much might be said, if it was material, in support of the proposition that the service of the plaintiff was a continuous one, the latter corporation being in fact the legal prolongation of the other, still the plaintiff's demand or cause of action for the service rendered each corporation was an entire and indivisible one. Both these demands were joined in the action of February 12, 1883, and whatever was then due from the defendant on account of such services was a part of the causes of action on which said action was brought. If the plaintiff then had a claim against the defendant. for services as an attorney, as alleged herein, it was a part of his cause of action, and should have been included therein; for, if he could divide the account into advice and counsel, attending suits in court, preparing certificates of title, so as to make three causes of action out of the transaction, there is nothing but his own temerity or sense of propriety to prevent him from subdividing it ad infinitum, so as to have a separate cause of action for each item of advice, or the 554 certificates of title mentioned in his complaint. By such means the plaintiff might make for himself, out of a comparatively short service, almost a perennial cause of action. In the consideration of this case I have constantly had in mind the fact that the claims made by the plaintiff against the defendant grow out of the employment of the former by the latter as its attorney. In the nature of things, the services of a standing or regularly appointed attorney are usually rendered pursuant to some general contract or understanding, and whatever is due therefor at the end of the service or employment constitutes but one cause of action, and cannot be split up into several distinct ones. Lucas v. Le Compte, 42 Ill. 303. In the application of the salutary rule against splitting up demands, courts. ought to be careful to leave no loop-hole through which an attorney may be tempted to harass and oppress his client with vexatious or spiteful litigation. Such things are well calculated not only to bring the profession of the law into disfavor, but the administration of justice into disrepute. The demurrer is sustained. HUGHES . DUNDEE MORTGAGE & TRUST INVESTMENT CO. (Nos. 1,066 and 1,069. Two Cases.) Action to Recover Attorney's Fees. DEADY, J. These two cases were argued and submitted with the foregoing. The facts in the cases are similar, and the question made on the demurrers to the defenses is the same. In No. 1,066 it appears that the Oregon & Washington Mortgage Savings Bank was incorporated under the laws of Great Britain, and engaged in loaning money in Oregon and Washington; that the plaintiff was its attorney, and as such, prior to January 1, 1882, made and delivered to it 347 certificates of titles to certain lands, on which it loaned $565,103.59; that said certificates were worth 1 per centum of that sum, or $5,651.03; that in August, 1882, said corporation amalgamated with the defendant, who assumed to pay its debts, including the claim of the plaintiff, which, with interest, amounts to $6,907.07. In 1,069 it appears that the defendant was incorporated under the laws of Great Britain prior to 1879, and has since been loaning money in Oregon and Washington; that in 1879, 1880, and 1881 the plaintiff was the attorney of the defendant, and as such made and delivered to it 297 certificates of title to certain lands, on which it loaned $589,000; that said certificates were worth 1 per centum of that sum, or $5,890, which, with interest, amounts to $7,139.85. In both these cases the defense is made that the judgment given in the action commenced February 12, 1883, is a bar, to which the plaintiff demurs as in case 1,065, ante, 831. The defense is sustained, and the demurrer overruled, for the reasons given in that case. HOWARD and Wife v. DENVER & R. G. Ry. Co.1 Circuit Court, D. Colorado. March 23, 1886.) MASTER AND SERVANT-NEGLIGENCE-FELLOW-SERVANTS-ENGINEER IN CHARGE OF ENGINE AND FIREMAN ON ANOTHER TRAIN. A fireman on a passenger train, and an engineer in charge of an engine not connected with such train, but belonging to the same railroad company, are fellow-servants, and where the fireman is killed by a collision between the engine and the train caused by the negligence of the engineer the company will not be liable.2 Action against a railroad company to death of an employe caused by negligence. dict, and defendant moves for a new trial. stated in the opinion. Rogers & Cuthbert, for plaintiffs. recover damages for the Plaintiffs obtained a verThe material facts are BREWER, J. This is a motion for a new trial which, by the direction of the trial judge, has been referred to me for decision. As I was not present at the trial, I feel at liberty to consider only the principal question upon which the ruling of the trial judge was made. 1 1 Reported by Robertson Howard, Esq., of the St. Paul bar. 2 Respecting the liability of the master for an injury caused by the negligence of a fellow-servant, and herein of who are fellow-servants, see Garrahy v. Kansas City, St. J. & C. B. R. Co., 25 Fed. Rep. 258. The facts which present that question are these: The plaintiffs are the parents of one John H. Howard, who, on May 19, 1883, was killed in a collision on defendant's road. Young Howard was employed as a fireman, working on the regular passenger train running west on that day from Pueblo to Leadville. That train was running on schedule time, and about a quarter of a mile west of Badger Station collided with a light engine running eastward, under the management and control of one. William Ryan, its engineer. Ryan neglected his instructions, and his negligence was the proximate cause of the collision. There was no proof of incompetence on his part, or of negligence in employing him, or in the order under which he was acting and which he disobeyed. The case rested simply on the fact of his negligence. The trial judge held that his negligence was the negligence of the company, and that he was not a fellow-servant with the deceased. This, then, is the single question presented. The rules of the company provided that an engineer running a light engine like this, without any separate conductor, should be regarded as both engineer and conductor. The question, therefore, is distinctly presented whether, in case of collision between a train and an engine, the negligence in the management of the engine, whereby injury results to the employes on the other train, is to be regarded as the negligence of the company, or simply the negligence of a fellow-servant. Obviously, the question is of no slight importance. It will not be doubted that the early current of judicial decision in this country was such as to affirm that employes, situated as Ryan and the deceased, were fellow-servants. The great and leading case was that of Furwell v. Boston & W. R. Co., 4 Metc. 49, in which the opinion was written by Chief Justice SHAW. He there stated the rule to be that all persons employed by the same mas.er, and engaged in a common enterprise, were fellow-servants, no matter what the relation in which they stood to each other. This case was generally followed, both in this country and England, and the principles enunciated thereon were accepted as correct. Nor, on the other hand, can it be questioned that the later current, both of judicial decision and legislative action, is away from that ruling in many respects. By action of the legislature in at least two states-Kansas and Iowa-the railroad company is made responsible to every employe for the negligence of every other employe, so that in these states the doctrine of fellow-servants in respect to the question of negligence has ceased to have any recognition. Outside of these states, by the rulings of many courts, the case of Farwell v. Railroad Co. has been much limited and restricted. One marked limitation is this: Whereever the master owes an absolute duty to the employes, and instead of discharging that duty himself intrusts it to an agent or servant, such agent or servant is not a fellow-servant within the meaning of the rule of liability for negligence. Thus, the master owes to every employe the duty of providing a reasonably safe place in which to work, and reasonably safe instruments and machinery with which to work. This may be called a direct and absolute obligation. If the discharge of this obligation is intrusted to an agent or servant, such agent or servant is the representative of the master, and any negligence on his part is the negligence of the master. Thus, in the case of Calor v. Charlotte, C. & A. R. Co., decided by the supreme court of South Carolina at the April term, 1885, the · plaintiff, a locomotive engineer, while running his engine between Columbia and Charlotte, was injured through the negligence of a section-master and supervisor of the track-laying force, who, in disre gard of the appropriate signals, took up a portion of the track, and thus derailed the engine. The court held that the true test was whether this section-master was employed to discharge the duties of the master, and also that it was the duty of the master to provide a suitable and safe place for his employes to work in and on, which duty had, in this case, been committed to the section-master. His negligence was therefore properly adjudged the negligence of the master. The same principle was recognized in the case of Morris v. Richmond & A. R. Co., decided by the court of appeals of Virginia, in April, 1884, and reported in 8 Virginia Law J. 540. In that case, the decedent, whose administrator was plaintiff, was a brakeman on a material-train. A section gang at work on the track failed to signal the train, although it had the rails misplaced. In consequence, the train was derailed, and the decedent injured so that he died in eight hours. The court held that the section-men and the decedent were not fellow-servants, saying that "where a company delegates to an agent or employe the performance of duties which the law makes it incumbent on the company to perform, his acts are the acts of the company, his negligence is the negligence of the company;" citing Brothers v. Carter, 52 Mo. 372; Flike v. Boston & A. R. Co., 53 N. Y. 549; Corcoran v. Holbrook, 59 N. Y. 517; Mullan v. Philadelphia & S. M. S. Co., 78 Pa. St. 25; Ryan v. Chicago & N. W. R. Co., 60 Ill. 171. The case of Davis v. Central Vt. R. Co., 55 Vt. 84, is a well-considered case upon this point. In that case it appeared that, through the negligence of the company's bridge builder in constructing, and of the road-master in repairing, a culvert, it washed out, whereby a foreman was killed. The company was held responsible. The court said: "The bridge-builder and road-master, while inspecting and caring for the defectively constructed culvert, were performing a duty, which, as between the intestate and defendant, it was the duty of the defendant to perform. Their negligence therein was the negligence of the defendant." Among other cases affirming the same doctrine may be cited the following: Lewis v. St. Louis & I. M. R. Co., 59 Mo. 495; O'Donnell v. Railroad Co., 59 Pa. St. 239; Nashville & C R. Co. v. Carroll, |