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James P. Dusenberry, administrator, etc., of Cephas M. Woodruff, deceased, brought an action of trespass on the case, in the Supreme Court, against Henry S. Little, receiver the Central Railroad of New Jersey, to recover damages for the death of said decedent, caused by the alleged wrongful act, neglect or default of the agents of said receiver in operating said railroad, under the statute. Rev., p. 294. The deceased was a passenger on a train of cars of the Central Railroad, holding a ticket from Ocean Grove to New York city, on June 29, 1882, when the car in which he was sitting was thrown from the track at Parker's creek by an imperfect switch, on the New York and Long Brauch Railroad, by which he was killed. The action was tried in the Circuit Court of Essex county, and a verdict rendered for the plaintiff. For this amount and costs, a judgment was entered in the Supreme Court, and this writ of error was brought to reverse the judgment.

John W. Taylor, for plaintiff in error.

H. C. Pitney, for defendant in error.

SCUDDER, J. The first error assigned on the bill of exceptions returned with the writ is that the receiver was not liable to this action because that under his statutory appointment he is not a common carrier, but a public officer.

This statute of February 11, 1874, enacts "that whenever any incorporated railroad company in this State shall become insolvent, and the property of such company shall have passed into the hands of a receiver by order of the chancellor, in accordance with the act to which this is a supplement, the receiver shall, and he is hereby empowered to operate said railroad for the use of the public, subject at all times to the order of the chancellor; and all expenses incident to the operation of said railroad shall be a first lien on the receipts, to be paid before any other incumbrance whatever." Rev., p. 196, § 106.

It is urged that as he was empowered by the act to operate the railroad for the use of the public, there can be no liability to individuals on his part when executing this public duty. Freeholders v. Strader, 3 Harr. 108; Cooley v. Freeholders, 3 Dutch. 415; Livermore v. Freeholders, 5 id. 245; S. C., 2 Vroom, 507; Pray v. Jersey City, 3 id. 394; Marvin Safe Co. v. Ward, 46 N. J. L. 19-21, are cited in support of this position. The exhaustive view of this disputed principle in Hill v. Boston, 122 Mass. 344; 23 Am. Rep. 332, defines its true application in protecting those who are acting *S. C., 46 N. J. L. 614.

under public authority. It agrees with the statement in the conclusion of the opinion of the court in Pray v. Jersey City, in these words: "The neglects of agents of the public in the discharge of their legitimate functions cannot constitute the basis of an action in behalf of an individual who has sustained a particular damage. Such neglects are public offenses, and must be remedied by indictment." Taking this as the settled law of our State, the first inquiry is, does this defendant, the receiver of an insolvent railroad company, stand in such position to the public that he can claim its protection?

An examination of the cases where this immunity has been given will show that it is limited to those who are strictly public officers, who are parts of the governmental agency of the State, entirely distinct from individual gain or profit, such as State, county, municipal and township boards and officers, discharging duties imposed on them by law, with none behind them but the public, whom they represent, and no funds to answer for damages except those that must be taken from the public treasury. The phrase in the statute, "to operate said railroad for the use of the public," does not create this public office. It imposes on the receiver appointed by the chancellor no other duty to the public than that which belongs to every railroad corporation acting under statutory authority. They must operate their railroads for the use of the public, and do so, otherwise they could have no legal right of eminent domain to condemn lands and materials for the construction and maintenance of their roads. The object of the statute is plain, that when a railroad company becomes insolvent, it shall and may be kept in operation for the public convenience of travel and transportation. If its operation should immediately cease when its insolvency is determined, great detriment would follow to those who are dependent on it as a highway open for the use of all who may ned it. At the trial in the Circuit, the judge in charging the jury, said that the statute "was simply designed to secure the running of the road in the interest of the public, by making the running expenses the first lien on the receipts, in priority over incumbrances." This is the obvious meaning, and there was no intention on the part of the Legislature to create a new public office, and clothe the receiver who occupied it by the appointment of the court, with the immunities of such office, and thereby enable him to shield himself, cover up the earnings and protect the stockholders and creditors from damages to others in operating the road. It has been the judicial construction of this statute in our courts, that it does not change the obligation of the receiver, who by the appointment of the chancellor takes upon him the management of the road, and that he is liable, in his representative capacity in all respects to others for injuries, as the company would be, if transacting its business in the usual

way.

Klein v. Jewett, 11 C. E. Green, 474, decided that there was such liability of the receiver, and on appeal to this court, in the same case, 12 C. E. Green, 550, this point appears to have been abandoned.

Palys v. Jewett, 32 N. J. Eq. 302, was an action against the defendant, as the receiver of the Erie railway, for damages alleged to have been sustained by the plaintiff by reason of the negligence of the employees of the receiver in the management of a train of cars, and it ruled that a person having a legal cause of action, sounding merely in tort against the receiver appointed by the Court of Chancery, has a right to pursue his redress by an action of law, with the permission of the chancellor. In the first-named case, Meara v. Holbrook, 20 Ohio St. 137; S. C., 5 Am. Rep. 633; Blumenthal v. Brainerd, 38 Vt. 402; Paige v. Smith, 99 Mass. 395, are cited with approval. In all, re

ceivers are held to their liability as common carriers' for a breach of duty or obligation arising out of business intrusted to them in that relation, and it is no defense at law that they were running and managing the line of railroad as receivers, under the appointment of the Court of Chancery.

It is said in Jones on Railroad Securities, ¶ 509, that there is much diversity of opinion upon the question whether a receiver is liable for the negligence of his employees in the same manner and to the same extent that a railroad company, operating its road, is liable. After citing and balancing the cases in different courts, he concludes that the doctrine of respondeat superior, as between a receiver acting under the direction of a Court of Chancery and his employees, has no application. If this be confined to the principle that a receiver is not personally responsible for injuries suffered by the neglect or misconduct of persons employed by him in performing his duties under the appointment of court, there will probably be no difference of opinion, but if he is not held liable in his representative capacity for the negligence of his employees, and in no way responsible for their misconduct, a very serious difficulty is presented, for it thus appears there may be a right, where there is no remedy to enforce it. But the author further says: "Considerations of policy may very likely lead to the adoption of the rule that a receiver shall not be allowed to exercise the rights and powers of a common carrier, without also being held subject to a common carrier's duties and liabilities."

Cardot v. Barney, 63 N. Y. 281; S. C., 20 Am. Rep. 533, 540 note, holds that an assignee or receiver in bankruptcy of an insolvent corporation is not liable to an action for the negligence of employees, unless he assumes to act as a common carrier, other than as an officer of the court, or where personal neglect is imputed to him.

Danforth, J., in Kain v. Smith, 80 N. Y. 458, 470, remarking on the case of Cardot v. Barney, says: "Observe the care with which the facts are eliminated on which it rests; but as if to prevent any misconception, the learned judge confines it to a case where there is an absence of evidence that the operator assumed to act otherwise than as an assignee, or that he held himself out as a carrier of passengers other than as an officer of the court. So limited there is no danger that any injury will go without compensation. Damages for injury to the person, whether passenger or employee, for loss of goods or otherwise, would be chargeable upon and payable out of the fund in court, the same as other expenses of administration;" and this may be reached, he says, by application to the same tribunal which might itself dispose of the matter by administering justice between the parties or allow the party aggrieved to bring his suit at law for the alleged injury. He cites Klein v. Jewett as authority. The case turned on other facts, which it is not necessary to state.

The examination of these cases does not show so great a divergence of authority as has been supposed, for it is not contended in this case, nor has it ever been held in our courts, that the fund in the hands of the court, or of the receiver as its officer, can be reached without the leave of the Court of Chancery, or that an action can be brought at law to fix the measure of damages sustained, without such leave. After judgment obtained at law, the execution will be stayed by injunction or by motion in the court having control of the process.

Burton v. Barbour, 104 U. S. 126, which discusses this subject very fully, concludes on the facts there involved, that a court of equity, having in its hands for administration, as trust assets, a railroad or other

property, may authorize the receiver to keep it in repair, and manage it in the ordinary way, until it can' be sold to the best advantage of all interested therein. But without leave of that court, a court of another State has, under the circumstances, no jurisdiction to entertain suits against him for causes of action arising in the State wherein he was appointed and where the property is situated, which are based on his negligence or that of his servants, in the performance of their duty, in respect to the property. The plea in that case averred that the plaintiff had not obtained leave of the court having custody of the railroad assets, to bring and maintain his suit. It was on demurrer to the plea which admitted that the suit was brought without leave, that the case was considered. If such leave had been obtained before action brought, a different case would have been presented.

Farlow, Receiver, v. Kelly, 108 U. S. 288, in which an action was brought against a receiver of a railroad corporation, to recover damages against him, as common carrier, for injuries suffered by a collision of the car in which the plaintiff was riding, with a freight car standing on a side track, shows that Kelly, the plaintiff, petitioned the court which appointed the receiver, for leave to sue him in another court, to recover for injuries sustained. This was denied, and he asked leave to file his complaint against the receiver, in a suit for the foreclosure of a mortgage, in which the receiver was appointed. This was granted, and the receiver ordered to make his defense, which was found against him.

It can hardly be said, as the result of an examination of these cases, and many others referred to in them, that it is settled law that a receiver of an insolvent railroad corporation may not be sued at law, where, as in this case, he is continuing the business of the company, as a common carrier, for the transportation of passengers and freight for hire, and where the defense is not set up that the action is brought without leave of the court that appointed him. On the contrary it appears that with such leave, he may be sued at law, and that it accords with sound principle and reason that a receiver exercising the franchise of a railroad company shall be held amenable, in his official capacity, to the same rules of liability that are applicable to the company while it exercises the same powers of operating the road. Sprague v. Smith, 29 Vt. 421. I do not find in the case returned the specific exception taken that leave was not granted to bring the action. If this be so it will be assumed, after verdict in a court having general common-law jurisdiction, that whatever was necessary to sustain the case stated in the declaration, was proved on the trial, and that such leave was granted. Stennel v. Hogg, 1 Wm.Saund. 228; Steph. Pl. *148.

[Omitting minor points.]

This covers all the assignments of error in the case presented, and the judgment will be affirmed.

For affirmance-The Chancellor, Chief Justice Dixon' Knapp, Parker, Reed, Scudder, Van Syckel, Brown, Clement, Cole, Paterson, Whitaker. 13.

For reversal-None.

[As to liability of for negligence-See also 49 Vt. 255; 93 U. S. 252.1

[As to suing without leave of court-See 36 Am. Rep. 104; 29 id. 534; 16 Eng. 757; 25 Alb. L. J. 46; 18 W. Dig. 558; 4 Dill. 508.]

CARRIER-ILLEGAL CHARGES-MAY BE RECOVERED BACK.

OHIO SUPREME COURT, JANUARY TERM, 1884.

PETERS V. RAILROAD Co.*

A shipper has a right to have his goods transported at legal rates over the usual line of a common carrier of such goods; and if to procure the services of such carrier the shipper is compelled to pay illegal rates established by the carrier, the payment is not such a voluntary payment as will preclude recovering back the illegal charge; nor will it preclude such recovery if the payments, by arrangement of parties, are made at the end of each month. RROR to the District Court of Scioto county. The opinion states the point.

ER

Edward F. Hunter, W. A. Hutchins and M. A. Daugherty, for plaintiffs in error.

McClintic & Smith and Harrison, Olds & Marsh, for defendant in error.

FOLLETT, J. The plaintiffs aver that the defendant from time to time has received to and for the use of the plaintiffs several sums of money specified and set forth in tabular statements; and that the several sums

so received were for freight charges in excess of legal

rates.

It is admitted that the amounts charged were paid. The matters set up in the first defense were disposed of by this court in Campbell v. M. & C. R. Co., 23 Ohio St. 168, by holding: "Where the railroad of one company is purchased by another railroad company in pursuance of a statute authorizing the purchase, in the absence of any provision of law to the contrary, the road passes to the purchasing company subject to the same restrictions and limitations as to rates chargeable for transportation as attached to it in the hands of the vendor." And section 12 of the act of February 11, 1848, governs this case.

In that case this court also held that: "Where a railroad company is authorized to demand and receive compensation for transportation of property 'not exceeding five cents per ton per mile, when the same is transported a distance of thirty miles or more, and in case the same is transported for a less distance than thirty miles, such reasonable rate as may be from time to time fixed by the company,' it is unreasonable as a matter of law that the company should fix a greater sum for a less distance than thirty miles than the maximum allowed for full thirty miles."

In Smith v. P., Ft. W. & C. Ry. Co., 23 Ohio St. 10, this court also held: "Whether the rate of passenger fare fixed by a railroad company under section 12 of the act of February 11, 1848 (S. & C. 271), for distances less than thirty miles, be reasonable or not, is a question of fact for the jury, to be determined under such instructions by the court as the circumstances of the particular case may require."

In that case McIlvaine, J., said: "Whenever therefore the determination of the question whether the rate be reasonable involves the necessity of hearing testimony, it falls within the province of the jury." We think the reasonableness of freight fare may be determined in the same manner.

In this case the special master heard the testimony and found the facts, and also reported the evidence, and from the peculiar facts of the case the master found a certain amount due for "the payments in excess of the rates authorized by law;" and the court below, from the same evidence, found the same facts, and added interest to that amount and found a definite sum. These findings seem conclusive; and *To appear in 42 Ohio State Reports, 275.

whether or not these particular findings be before this court for review, the majority of the court think there was no error in finding that such payments were for charges in excess of rates authorized by law. The defendant should have known what were legal rates, and should have charged no more.

The plaintiffs have paid to defendant these illegal charges-money unjustly obtained; and the remaining question is, can the plaintiffs recover back the same?

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The defendant denies the plaintiffs' right to recover back, on the ground that these illegal charges were so paid voluntarily, after the services for which the same were demanded had been fully rendered and performed," etc.

The plaintiffs paid the charges for each month at the end of the month, and as the plaintiffs and defendant did not stand on terms of equality, they so paid to secure transportation for the succeeding month.

The defendant prescribed its own rates, and would carry the plaintiffs' freight only at the established rates, though these rates were illegal and unreasonable, and when, as a common carrier, it should have carried this freight at legal rates. The special master found that the sums exacted were illegal and unau

thorized, and plaintiffs were required to pay the same to procure the transportation of their property, without which the plaintiffs in each of said cases, by reason of the character of their manufacturing business, would have suffered great loss."

The defendant did not require the payments to be made in advance of carrying each shipment of freight, but the charges of each month were required to be paid at the end of the month, or future freight would not be carried.

Plaintiffs could compel the defendant to carry their freight ouly by a resort to the courts and at the end of litigation. The history of these suits, begun in 1867 and just ending in 1884, shows that plaintiffs could not obtain speedy and adequate redress, such as would save their business and prevent loss, simply by a resort to the courts to enforce legal rights. And as defendant would not accept the payment of legal rates, and required the full payment of its illegal charges, the plaintiffs, complaining and objecting to the increased and illegal charges, were forced to pay them. Their choice and volition were compelled. Such payments are not voluntary. We will refer to some of the authorities and reasons of this position.

"The common principle is that if a man chooses to give away his money, or to take his chance whether his mind; but it is open to him to show that he suphe is giving it away or not, he cannot afterward change posed the facts to be otherwise, or that he really had no choice." Pollock Prin. Cont. 523. These plaintiffs "really had no choice."

In 1760, in Moses v. Macferlan, 2 Burr. 1005, Lord Mansfield said: "This kind of equitable action to recover back money which ought not in justice to be kept is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund. But it lies for money got through an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances."

* * *

* * * * * *

The plaintiffs paid this money in like situation. In Parker v. Great Western Ry. Co., 7 M. & Gr. 253, the court held that payments made to a common carrier to induce it to do what by law, without them, it was bound to do, were not voluntary, and might be recovered back. Add. Cont. *1043, approves this principle.

Mr. Justice Matthews, in Swift Co. v. United States,

111 U. S. 29, approves the doctrine and calls it a "wholesome principle."

And in Baker v. City of Cincinnati, 11 Ohio St. 538, Gholson, J., approves of the same authority.

In Maxwell v. Griswold, 10 How. 242, the court said: "Now it can hardly be meant in this class of cases that to make a payment involuntary it should be by actual violence or any physical duress."

In the case of Railroad Co. v. Lockwood, 17 Wall. 379, Mr. Justice Bradley says: "The carrier and his customer do not stand on a footing of equality. The latter is only one of a million. He cannot afford to higgle or stand out and seek redress in courts. His business will not admit such a course. He prefers rather to accept any bill of lading or sign any paper the carrier presents; often indeed without knowing what the one or the other contains. In most cases he has no alternative but to do this or abandon his business."

In Beckwith v. Frisbie, 32 Vt. 559-566, it was said: "To make the payment a voluntary one the parties should stand upon an equal footing."

This is not a case of individuals dealing with each other on terms of equality; nor a case of payment of illegal charges to obtain possession of property; nor payment of illegal taxes to prevent the sale of property.

Here the defendant was a common carrier of such freight as plaintiffs had for transportation; the State had given the defendant, through its purchase of this part of its road, its right to use this road, and had limited its rate of charges. The plaintiffs' business was dependent on transportation by the defendant, and they were entitled to have their freight carried at legal and reasonable rates. The defendant prescribed rates illegal and unreasonable, and required its agents to demand and receive such rates or not carry the freight.

Plaintiffs, objecting and protesting against the basis and the amount of the charges, paid them at the end of each month, and they so paid the illegal charges to procure the future carriage of their freight.

The case of Swift Co. v. United States, 111 U. S. 22, is very much like this. There the commissioner of internal revenue had acted upon a wrong basis in charging for stamps for friction matches. The Swift Co. gave orders for stamps, and paid for each purchase within sixty days from the delivery of the stamps; and thus dealt from 1870 to 1878. No protest had been made by the company, though years before, in 1866, a member of the company "made repeated protests to the officers of the internal revenue bureau" against its methods of computing commissions" in similar cases.

The court held: "A course of business and a periodical settlement between the commissioner of internal revenue and a regular periodical purchaser of revenue stamps entitled by statute to commissions on his purchases payable in money, which shows that the commissioner asserted and the purchaser accepted that the business should be conducted upon the basis of payments of the commissions in stamps at their par value instead of in money, does not preclude the purchaser from asserting his statutory right, if he had no choice, and if the only alternative was to submit to an illegal exaction or discontinue his business." And the court also held: "When the commissioner of internal revenue adopted a rule of dealing with purchasers of stamps which deprived them of a statutory right to be paid their commissions in money, and obliged them to take them in stamps, and made known to those interested that the rule was adopted and would not be changed, the rule dispensed with the necessity of proving in each instance of complying with it, that the compliance was forced." Mr. Justice Matthews said: "No for

mal protest made at the time is by statute a condition to the present right of action, as in cases of action against the collector to recover back taxes illegally exacted;" and the court did not require any protest.

The rule was adopted by the commissioner, and would not be changed on further application; and business could be transacted only on that footing; and they paid within sixty days. Here the rates were fixed by the defendant, and the shipper must pay or forego shipment; and plaintiffs paid within thirty days. In principle the cases are alike.

In McGregor v. Erie Ry. Co., 35 N. J. L. 89-113, plaintiff recovered back from defendant certain moneys unlawfully demanded and taken for transportation of merchandise from Paterson to Jersey City. Bedle, J., having cited certain cases, said: "In these cases there was an express refusal, but I do not consider it necessary that the refusal should be express. It is sufficient if the person has just and reasonable ground to apprehend that unless the money is paid his goods will not be carried, or will be withheld. Where a corporation or person has the power to refuse a right to which a party is entitled, unless he complies with an unjust demand, they do not stand on an equal footing." And the court held: "But when they are not on an equal footing, and money is paid, not by compulsion of law, but by compulsion of circumstances, as when it is paid to release goods from illegal restraint, which cannot otherwise be reasonably effected, or to compel the performance of a duty by others in order to enjoy or obtain a right, it may be recovered, back. Under this head may be classed moneys paid under color of title or charges on turnpikes and railroads."

"Courts will not be illiberal in allowing a person to act upon his reasonable apprehension of such refusal, where the circumstances fairly show that unless he does so submit to the demand his right will be withheld."

In Lafayette & Indianapolis R. Co. v. Pattison, 41 Ind. 312, the excessive charges were recovered back. The syllabus contains the following: "During the rebellion A. had a contract to furnish the government with a certain number of beef cattle during two months, and for the purpose of filling such contract went to Chicago and made a contract with a railroad company to ship cattle for him to Indianapolis at $65 per car; and leaving an agent to ship, he returned to Indianapolis to receive the cattle. The cattle of the first shipment of two car loads were sent to the cattle yard of A., and after a few days a bill for $201.02 was sent to A., which he refused to pay, and informed the agent of the railroad company that he had a contract for the shipment at $65 per car; the agent denied knowledge of any such contract, and insisted that the bills must be paid as presented, and that he would not deliver any future car loads of cattle until the freight was paid, as he made it up from the way bills, and that the bill included other things besides freight, which he could not itemize. It was agreed that A. should pay under protest and also future freight, and the cattle should be delivered as they arrived, and A. should reserve the right to recover any sum so paid unjustly. In pursuance of this agreement the agent delivered the cattle at the yard of A. as they arrived from time to time, and as soon as the bills were prepared they were paid by A. Held, that the payments were not voluntary, and that A. could recover all sums so paid in excess of his contract price." And Buskirk, J., says: "We are of opinion that the money so paid could be recovered back if there had been no valid agreement that it might be. While the appellants were not in the actual possession of the cattle of the appellee, they possessed such power and control over the shipment and delivery thereof as gave them an

undue advantage over the appellee, and the necessity of the appellee was so great and pressing as to deprive him of the freedom of his will."

The case of Chicago & Alton R. Co. v. C. V. & W. Coal Co., 79 Ill. 121, is as follows:

"1. Certain individuals constructed a railroad twelve miles long, extending from a coal mine, belonging to a coal company, to a station on the Illinois Cent. railroad, and on April 30, 1869, they sold the same to a railroad company and turned it over to them, and on the same day the company purchasing turned it over to another railroad company. The last-named company operated the road in pursuance of the contract of sale between the first owners and the purchasers from them, for three years, complying with the terms of said contract as to rates of freight to be charged to the coal company for transportation of its coal. The individuals building and selling the road, and the coal company, were the same. Held, that the railroad company last purchasing, by taking the road and recognizing the rates of freight established by the contract of sale, adopted the contract, and were bound by its terms, and that the coal company could maintain an action against them for a breach of it."

"2. In such a case, where the coal company had no other outlet for its coal, and the railroad company exacted more freight than, by the terms of the contract, they were entitled to, the coal company should be considered as under a kind of moral duress, and the payment by them of the freight demanded, under such circumstances, cannot be considered voluntary, and they would have the right to sue upon the contract and recover back the excess of freight paid over the contract rate."

Mr. Justice Breese said: "It can hardly be said these enhanced charges were voluntarily paid by appellees. It was a case of 'life or death' with them, as they had no other means of conveying their coals to the markets offered by the Illinois Central, and were bound to accede to any terms appellants might impose. They were under a sort of moral duress, by submitting to which appellants have received money from them which in equity and good conscience they ought not to retain."

In Mobile & Montgomery Ry. Co. v. Steiner, 61 Ala. 559, illegal charges for transporting cotton were recovered back. The court said: "The nature of the business considered, the shipper does not stand on equal terms with the carrier in contracting for charges for transportation; and if the shipper pays the rates established in violation of law by the carrier rather than forego his services, such payment is not voluntary in the legal sense, and the shipper may maintain his action for money had and received to recover back the illegal charge."

To the objection that the payments were voluntarily made, and therefore could not be recovered back, Stone, J., said: "Railroads have so expedited and cheapened travel and transportation; have so driven from their domain all competing modes of transportation, that the public is left no discretion but to employ them, or suffer irreparable injury in this age of steam and electricity. They have their established rates of charges, and these the shipper must pay or forego their facilities and benefits. To object or protest would be an idle waste of words. The law looks to the substance of things, and does not require useless forms or ceremonies. The corporation and the shipper are in no sense on equal terms, and money thus paid to obtain a necessary service is not voluntarily paid, as the law interprets that phrase."

The above citations are sufficient.

The foregoing principles and authorities show that the payments made in this case should not be regarded as voluntary, and that no principle of equity

shown by defendant can aid the defendant in withholding from plaintiffs the money so unjustly obtained by the defendant.

There was error in the courts below, and this court enters judgment for the plaintiffs for the amount found by the court below, together with interest on the same from the first day of that term of court, and costs of suit.

Judgment reversed and judgment for plaintiffs.

JOHNSON, C. J. Concurs in holding that under the facts disclosed the excessive charges may be recovered back, but he dissents from the construction placed on section 12 of the act of 1848, which limits the rate of freight to five cents per ton per mile for distances of thirty miles or more, and reasonable rates for less distances. He does not think that section applies to packages and parcels weighing less than a ton, and which by the usual custom are not shipped by weight. MCILVAINE, J., dissenting.

[See 22 Am. Rep. 512; 24 id. 622; 30 id. 689; 15 id. 323; 13 id. 220; 19 id. 367; 56 N. Y. 289; 74 id. 125.ED.]

UNITED STATES SUPREME COURT ABSTRACT.*

WRIT OF ERROR-COMPROMISE-AFTER JUDGMENTDISMISSAL.-Where, after the rendition of the judgment sought to be reversed, the matter in controversy has been the subject of a valid compromise between the parties to the litigation, which leaves nothing of the controversy presented by the record in the Supreme Court to be decided, the writ of error will be dismissed on motion. This court has dismissed several suits on grounds much more liable to the objection raised than the present case, as in the case of Cleveland v. Chamberlain, 1 Black, 419, where the plaintiff in error, having bought out the defendant's interest in the matter in controversy, and having control of both sides of the litigation in the suit, still sought for other purposes to have the case decided by this court. On evidence of this by affidavits the court dismissed the writ. Similar cases in regard to suits establishing patent rights or holding them void by the inferior courts, as in Lord v. Veazie, 8 How. 254; Wood Paper Co. v. Heft, 8 Wall. 336, have been dismissed, because the parties to the suit having settled the matter, so that there is no longer a real controversy, one or both of them was seeking a judgment of this court for improper purposes, in regard to a question which exists no longer between those parties. It is by reason of the necessity of the case that the evidence by which such matters are brought to the attention of the court must be that not found in the trans

cript of the original case, because it occurred since that record was made up. To refuse to receive appropriate evidence of such facts for that reason is to deliver up the court as a blind instrument for the perpetration of fraud, and make its proceedings by such refusal the means of inflicting gross injustice. The cases and precedents we have mentioned are sufficient to show that the proposition of plaintiff in error is untenable. In the case of Board of Liquidation v. Louisville & N. R. Co., 109 U. S. 223, a question arose on the presentation of an order made by the authorities of the city of New Orleans to dismiss a suit in this court in which that city was plaintiff in error. The order was based on a compromise between those authorities and the railroad company, which the board of liquidation, intervening here, alleged to be without authority, and fraudulent. The court here did not disregard the compromise or the order of the city to *Appearing in 5 Supreme Court Reporter.

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