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tor shall pay the costs of each suit that he forces the under public authority. It agrees with the statement tax payer to bring in defense of his rights. This sim- in the conclusion of the opinion of the court in Pray v. ply puts into a working form the principles affirmed in Jersey City, in these words: “ The neglects of agents the decision of the Supreme Court.

of the public in the discharge of their legitimate funcSAMUEL T. SPEAR.

tions 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 NEGLIGENCE - LIABILITY OF RECEIVER FOR. be remedied by indictment." Taking this as the set

tled law of our State, the first inquiry is, does this deNEW JERSEY COURT OF ERRORS AND APPEALS.

fendant, the receiver of an insolvent railroad company, stand in such position to the public that he can claim

its protection ? LITTLE V. DUSENBERRY.*

An examination of the cases where this immunity A receiver of an insolvent railroad company, empowered ky has been giveu will show that it is limited to those

statute to operate the railroad for the use of the public, who are strictly public officers, who are parts of the acting as a common cyrier, in the carriage of passengers, governmental agency of the State, entirely distinct is not a public officer, entitled to immunity as such, but

from individual gain or profit, such as State, county, may be sued at law, in his representative capacity, by municipal and township boards and officers, dischargleave of the court appointing him, as the company might ing duties imposed on them by law, with none behind be, for negligence of his agents in operating the road, re- them but the public, whom they represent, and no sulting in the death of a passenger.

funds to answer for damages except those that must N error to Supreme Court.

be taken from the public treasury. The phrase in the

statute, to operate said railroad for the use of the James P. Dusenberry, administrator, etc., of Cephas

public," does not create this public office. It imposes M. Woodruff, deceased, brought an action of trespass

on the receiver appointed by the chancellor no other on the case, in the Supreme Court, against Henry S.

duty to the public than that which belongs to every Little, receiver of the Central Railroad of New Jersey,

railroad corporation acting under statutory authority. to recover damages for the death of said decedent,

They must operate their railroads for the use of the caused by the alleged wrongful act, neglect or default

public, and do so, otherwise they could have no legal of the agents of said receiver in operating said rail.

right of eminent domain to condemn lauds and materoad, under the statute. Rev., p. 294. The deceased

rials for the construction and maintenance of their was a passenger on a train of cars of the Central

roads. The object of the statute is plain, that when Railroad, holding a ticket from Ocean Grove to New a railroad company becomes insolvent, it shall and York city, on June 29, 1882, when the car in which he may be kept in operation for the public convenience of was sitting was thrown from the track at Parker's creek

travel and transportation. If its operation should imby an imperfect switch, on the New York and Long

mediately cease when its insolvency is determined, Branch Railroad, by which he was killed. The action

great detriment would follow to those who are de was tried in the Circuit Court of Essex county, and a

pendent on it as a highway open for the use of all who verdict rendered for the plaintiff. For this amount

may ned it. At the trial in the Circuit, the judge in and costs, a judgment was entered in the Supreme

charging the jury, said that the statute “was simply Court, and this writ of error was brought to reverse

designed to secure the running of the road in the inthe judgment.

terest of the public, by making the running expenses

the first lien on the receipts, in priority over incumJohn W. Taylor, for plaintiff in error.

brances." This is the obvious meaning, and there was H. C. Pitney, for defendant in error.

no intention on the part of the Legislature to create a SCUDDER, J. The first error assigned on the bill of it by the appointment of the court, with the immuni

new public office, and clothe the receiver who occupied exceptions returned with the writ is that the receiver was not liable to this action because that under his

ties of such office, and thereby enable him to shield statutory appointment he is not a common carrier, but

himself, cover up the earnings and protect the stock. a public officer.

holders and creditors from damages to others in operatThis statute of February 11, 1874, enacts "that when

ing the road. It has been the judicial construction of ever any incorporated railroad company in this State

this statute in our courts, that it does not change the shall become insolvent, and the property of such com

obligation of the receiver, who by the appointment of pany shall have passed into the hands of a receiver by

the chancellor takes upon him the management of the order of the chancellor, in accordance with the act to

road, and that he is liable, in his representative capacwhich this is a supplement, the receiver sball, and ho

ity in all respects to others for injuries, as the com: is hereby empowered to operate said railroad for the

pany would be, if transacting its business in the usual

way. use of tbe public, subject at all times to the order of the chancellor; and all expenses incident to the oper

Klein v. Jewett, 11 C. E. Green, 474, decided that ation of said railroad shall be a first lien on the re

there was such liability of the receiver, and on appeal ceipts, to be paid before any other incumbrance what

to this court, in the same case, 12 C. E. Green, 550, this ever." Rev., p. 196, 106.

point appears to have been abandoned. It is urged that as he was empowered by the act to

Palys v. Jewett, 32 N. J. Eq. 302, was an action operate the railroad for the use of the public, there

against the defendant, as the receiver of the Erie railcan be no liability to individuals on his part when ex

way, for damages alleged to have been sustained by ecuting this public duty. Freeholders v. Strader, 3

the plaintiff by reason of the negligence of the emHarr. 108; Cooley v. Freeholders, 3 Dutch. 415; Liver

ployees of the receiver in the management of a train more v. Freeholders, 5 id. 245; S. C., 2 Vroom, 507;

of cars, and it ruled that a person having a legal cause Pray v. Jersey City, 3 id. 394; Marvin Safe Co. v. Wurd,

of action, sounding merely in tort against the receiver 46 N. J. L. 19-21, are cited in support of this position.

appointed by the Court of Chancery, has a right to The exhaustive view of this disputed principle in Hill

pursue his redress by an action of law, with the perv. Boston, 122 Mass. 344; 23 Am. Rep. 332, defines its

mission of the chancellor. In the first-pamed case, true application in protecting those who are acting

Meara v. Holbrook, 20 Ohio St. 137; S. C., 5 Am. Rep.

633; Blumenthal v. Brainerd, 38 Vt. 402; Paige v. * S. C., 46 N. J. L. 614.

Smith, 99 Mass. 395, are cited with approval. In all, re.




ceivers are held to their liability as common carriers property, may authorize the receiver to keep it in refor a breach of duty or obligation arising out of busi- | pair, and manage it in the ordinary way, until it can ness intrusted to them in that relation, and it is no de- be sold to the best advantage of all interested therein. fense at law that they were running and managing the But without leave of that court, a court of another line of railroad as receivers, under the appointment of State has, under the circumstances, no jurisdiction to the Court of Chancery.

entertain suits against him for causes of action arisIt is said in Jones on Railroad Securities, 509, that ing in the State wherein he was appointed and where there is much diversity of opinion upon the question the property is situated, which are based on his negwhether a receiver is liable for the negligence of his Jigence or that of his servants, in the performance of employees in the same manner and to the same extent their duty, in respect to the property. The plea in that a railroad company, operating its road, is liable. that case averred that the plaintiff had not obtained After citing and balancing the cases in different courts, leave of the court having custody of the railroad he concludes that the doctrine of respondeat superior, assets, to bring and maintain his suit. It was on de. as between a receiver acting under the direction of a murrer the plea which admitted that the Court of Chancery and his employees, has no applica- suit was brought without leave, that the case was contion. If this be confined to the principle that a re

sidered. If such leave had been obtained before acceiver is not personally responsible for injuries suffered tion brought, a different case would have been preby the neglect or misconduct of persons employed by

sented. him in performing his duties under the appointment Farlow, Receiver, v. Kelly, 108 U. S. 288, in which ad of court, there will probably be no difference of opin- action was brought against a receiver of a railroad corion, but if he is not held liable in his representative poration, to recover damages against bim, as common capacity for the negligence of his employees, and in no carrier, for injuries suffered by a collision of the car in way responsible for their misconduct, a very serious which the plaintiff was riding, with a freight car difficulty is presented, for it thus appears there may standing on a side track, shows that Kelly, the plaintbe a right, where there is no remedy to enforce it. But iff, petitioned the court which appointed the receiver, the author further says: “ Considerations of policy

for leave to sue him in another court, to recover for may very likely lead to the adoption of the rule that a injuries sustained. This was denied, and he asked receiver shall not be allowed to exercise the rights leave to file his complaint against the receiver, in a and powers of a common carrier, without also being

suit for the foreclosure of a mortgage, in which the held subject to a common carrier's duties and liabili

receiver was appointed. This was granted, and the ties." Cardot v. Barney, 63 N. Y. 281; S. C., 20 Am. Rep.

receiver ordered to make his defense, which was found 533, 540 note, holds that an assiguee or receiver against him. in bankruptcy of an insolvent corporation is not liable It can hardly be said, as the result of an examination to an action for the negligence of employees, unless he of these cases, and many others referred to in them, assumes to act as a common carrier, other than as an

that it is settled law that a receiver of an insolvent officer of the court, or where personal neglect is impu- railroad corporation may not be sued at law, where, ted to him. Danforth, J., in Kain v. Smith, 80 N. Y. 458, 470, re

as in this case, he is continuing the business of the marking on the case of Cardot v. Barney, says: “Ob- company, as a common carrier, for the transportation serve the care with which the facts are eliminated on of passengers and freight for hire, and where the dewhich it rests; but as if to prevent any misconception, fense is not set up that the action is brought without the learned judge confines it to a case where there is

leave of the court that appointed him. On the conan absence of evidence that the operator assumed to

trary it appears that with such leave, he may be sued act otherwise than as an assignee, or that he held him

at law, and that it accords with sound principle and self out as a carrier of passengers other than as an officer of the court. So limited there is no danger that

reason that a receiver exercising the franchise of a apy injury will go without compensation. Damages

railroad company shall be held amenable, in his official for injury to the person, whether passenger or em- capacity, to the same rules of liability that are applicaployee, for loss of goods or otherwise, would be charge- ble to the company while it exercises the same powers able upon and payable out of the fund in court, the

of operating the road. Sprague v. Smith, 29 Vt. 421. I same as other expenses of administration;" and this

do not find in the case returned the specific exception may be reached, he says, by application to the same tribunal which might itself dispose of the matter by

taken that leave was not granted to bring the action. administering justice between the parties or allow the

If this be so it will be assumed, after verdict in a court party aggrieved to bring his suit at law for the al- having general common-law jurisdiction, that whatleged injury. He cites Klein v. Jewett as authority. ever was necessary to sustain the case stated in the The case turned on other facts, which it is not neces- declaration, was proved on the trial, and that such Bary to state.

leave was granted. Stennel v. Hogy, 1 Wm. Saund. 228; The examination of these cases does not show so

Steph. Pl. *148. great a divergence of authority as has been supposed, for it is not contended in this case, nor has it ever

[Omitting minor points.) been held in our courts, that the fund in the hands of

This covers all the assignmonts of error in the case the court, or of the receiver as its officer, can be presented, and the judgment will be affirmed. reached without the leave of the Court of Chancery,or For affirmance-The Chancellor, Chief Justice Dixon, that an action can be brought at law to fix the meas- Knapp, Parker, Reed, Scudder, Van Syckel, Brown, ure of damages sustained, without such leave. After

Clement, Cole, Paterson, Whitaker. 13. judgment obtained at law, the execution will be stayed

For reversal-None. by injunction or by motiou in the court having control of the process.

[As to liability of for negligence-See also 49 Vt. 255: Burton v. Barbour, 104 U. S. 126, which discusses

93 U. S. 252.] this subject very fully, concludes on the facts there in- [As to suing without leave of court-See 36 Am. Rep. volved, tbat a court of equity, having in its hands for 104; 29 id. 534; 16 Eng. 757; 25 Alb. L. J. 46; 18 W. Dig. administration, as trust assets, a railroad or other 658; 4 Dill. 508.]

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CARRIER-ILLEGAL CHARGES-MAY BE RECOV- whether or not these particular findings be before this ERED BACK.

court for review, the majority of the court think there

was no error in finding that such payments were for OHIO SUPREME COURT, JANUARY TERM, 1884. charges in excess of rates authorized by law. The de

fendant should have known what were legal rates, PETERS V. RAILROAD Co.*

and should have charged no more. A shipper has a right to have his goods transported at legal The plaintiffs have paid to defendant these illegal

rates over the usual line of a common carrier of such charges-money unjustly obtained; and the remaingoods; and if to procure the services of such carrier the ing question is, cau the plaintiffs recover back the shipper is compelled to pay illegal rates established by the same? carrier, the payment is not such a voluntary payment as The defendant deuies the plaintiffs' right to recover will preclude recovering back the illegal charge; nor will back, on the ground that these illegal charges “were it preclude such recovery if the payments, by arrange- so paid voluntarily, after the services for which the

ment of parties, are made at the end of each month. same were demanded had been fully rendered and ERROR to the District Court of Scioto county. The performed," etc.

The plaintiffs paid the charges for each month at the

end of the month, and as the plaintiffs and defendant Eduard F. Hunter, W. A. Hutchins and Y. A.

did not stand on terms of equality, they so paid to seDaugherty, for plaintiffs in error.

cure transportation for the succeeding month. McClintic & Smith and Harrison, Olds & Marsh, for The defendant prescribed its own rates, and would defendant in error.

carry the plaintiffs' freight only at the established FOLLETT, J. The plaintiffs aver that the defendant

rates, though these rates were illegal and unreasonafrom time to time has received to and for the use of

ble, and when, as a common carrier, it should have

carried this freight at legal rates. The special master the plaintiffs several sums of money specified and set forth in tabular statements; aud that the several sums

found that “the sums exacted were illegal and unau80 received were for freight charges in excess of legal thorized, and plaintiffs were required to pay the same

to procure the transportation of their property, withrates. It is admitted that the amounts charged were paid.

out which the plaintiffs in each of said cases, by reason

of the character of their manufacturing business, The matters set up in the first defense were disposed

would have suffered great loss.” of by this court in Campbell v. M. & C. R. Co., 23 Ohio St. 168, by holding: “Where the railroad of one com

The defendant did not require the payments to be pany is purchased by another railroad company in

made in advance of carrying each shipment of freight,

but the charges of each month were required to be pursuance of a statute authorizing the purchase, in

paid at the end of the month, or future freight would the absence of any provision of law to the contrary,

not be carried. the road passes to the purchasing company subject to the same restrictions and limitations as to rates

Plaintiffs could compel the defendant to carry their chargeable for transportation as attached to it in the

freight ouly by a resort to the courts and at the end of hands of the vendor.” And section 12 of the act of litigation. The history of these suits, begun in 1867 February 11, 1818, governs this case.

and just ending in 1884, shows that plaintiffs could not In that case this court also held that: “Where a

obtain speedy and adequate redress, such as would railroad company is authorized to demand and receive

save their business and prevent loss, simply by a recompensation for transportation of property 'not ex

sort to the courts to enforce legal rights. And as de

fendant would not accept the payment of legal rates, ceeding five cents per ton per mile, when the same is transported a distance of thirty miles or more, and in

and required the full payment of its illegal charges, the case the same is transported for a less distance than plaintiffs, complaining and objecting to the increased thirty miles, such reasonable rate as may be from time and illegal charges, were forced to pay them. Their

choice and volition were compelled. Such payments to time fixed by the company,' it is unreasonable as a matter of law that the company should fix a greater

are not voluntary. We will refer to some of the ausum for a less distance than thirty miles than the thorities and reasons of this position. maximum allowed for full thirty miles.”

“The common principle is that if a man chooses to In Smith v. P., Ft. W. & C. Ry. Co., 23 Ohio St. 10, give away his money, or to take his chance whether this court also held: “Whether the rate of passenger his mind; but it is open to him to show that he sup

he is giving it away or not, he cannot afterward change fare fixed by a railroad company under section 12 of the act of February 11, 1848 (S. & C. 271), for distances posed the facts to be otherwise, or that he really had no

choice." Pollock Prin. Cont. 523. These plaintiffs less than thirty miles, be reasonable or not, is a question of fact for the jury, to be determined under such

"really had no choice." instructions by the court as the circumstances of the

In 1760, in Moses v. Macferlan, 2 Burr. 1005, Lord

Mansfield said: “This kiud of equitable action to reparticular case may require." In that case Mellvaine, J., said: “Whenever there

cover back money which ought not iu justice to be fore the determination of the question whether the

kept is very beneficial, and therefore much encourrate be reasonable involves the necessity of hearing aged. It lies only for money which, ex aequo et bono,

the defendant ought to refund.

But it lies testimony, it falls within the province of the jury.” We think the reasonableness of freight fare may be de

money got through

an undue termined in the same manner.

advantage taken of the plaintiff's situation, contrary

to laws made for the protection of persons under those In this case the special master heard the testimony

circumstances." and found the facts, and also reported the evidence, and from the peculiar facts of the case the master

The plaintiffs paid this money in like situation. found a certain amount due for “the payments in ex

In Parker v. Great Western Ry. Co., 7 M. & Gr. 253,

the court held that payments made to a common carcess of the rates authorized by law;" and the court

rier to induce it to do what by law, without them, it below, from the same evidence, found the same facts, and added interest to that amount and found a defi

was bound to do, were not voluntary, and might be nite sum.

recovered back. Add. Cont. *1043, approves this prinThese findings seem conclusive; and

ciple. * To appear in 42 Ohio State Reports, 275.

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

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111 U. S. 29, approves the doctrine and calls it a mal protest made at the time is by statute a condition "wholesome principle."

to the present right of action, as in cases of action And in Baker v. City of Cincinnati, 11 Ohio St. 538, against the collector to recover back taxes illegally exGholson, J., approves of the same authority.

acted;” and the court did not require any protest. In Maxwell v. Griswold, 10 How. 242, the court said: The rule was adopted by the commissioner, and Now it can hardly be meant in this class of cases would not be changed on further application; and that to make a payment in voluntary it should be by business could be transacted only on that footing; and actual violence or any physical duress.”

they paid within sixty days. Here the rates were fixed In the case of Railroad Co. v. Lockwood, 17 Wall. by the defendant, and the shipper must pay or forego 379, Mr. Justice Bradley says: “The carrier and his shipment; and plaintiffs paid within thirty days. In customer do not stand on a footing of equality. The principle the cases are alike. latter is only one of a million. He cannot afford to In McGregor v. Erie Ry. Co., 35 N. J. L. 89-113, higgle or stand out and seek redress in courts. His plaintiff recovered back from defendant certain monbusiness will not admit such a course. He prefers eys unlawfully demanded and taken for transportarather to accept any bill of lading or sigu any paper tion of merchandise from Paterson to Jersey City. the carrier presents; often indeed without knowing Bedle, J., having cited certain cases, said: “In these what the one or the other contains. In most cases he cases there was an express refusal, but I do not conhas no alternative but to do this or abandon his busi- sider it necessary that the refusal should be express. ness."

It is sufficient if the person has just and reasonable In Beckwith v. Frisbie, 32 Vt. 559-566, it was ground to apprehend that unless the money is paid his said: “To make the payment a voluntary one the goods will not be carried, or will be withheld. Where parties should stand upon an equal footing."

a corporation or person has the power to refuse a right This is not a case of individuals dealing with each to which a party is entitled, unless he complies with other on terms of equality; nor a case of payment of an unjust demand, they do not stand on an equal footillegal charges to obtain possession of property; ing." And the court held: “But when they nor payment of illegal taxes to prevent the sale of

not on equal footing, and money

is property.

paid, not by compulsion of law, but

by Here the defendant was a common carrier such compulsion of circumstances, as when it is paid to freight as plaintiffs had for transportation; the State release goods from illegal restraint, which cannot othhad given the defendant, through its purchase of this erwise be reasonably effected, or to compel the perpart of its road, its right to use this road, and had lim- formance of a duty by others in order to enjoy or obited its rate of charges. The plaintiffs' business was tain a right, it may be recovered back. Under this dependent on trausportation by the defendant, and head may be classed moneys paid under color of title they were entitled to have their freight carried at or charges on turupikes and railroads." legal and reasonable rates. The defendant prescribed “ Courts will not be illiberal in allowing a person to rates illegal and unreasonable, and required its agents act upon his reasonable apprehension of such refusal, to demand and receive such rates or not carry the where the circumstances fairly show that unless he freight.

does so submit to the demand his right will be withPlaintiffs, objecting and protesting against the basis held.” and the amount of the charges, paid them at the end

In Lafayette & Indianapolis R. Co. v. Pattison, 41 of each month, and they so paid the illegal charges to

Ind. 312, the excessive charges were recovered back. procure the future carriage of their freight.

The syllabus contains the following: “During the reThe case of Swift Co. v. United States, 111 U. S. 22, is bellion A. had a contract to furnish the government very much like this. There the commissioner of inter- with a certain number of beef cattle during two nal revenue had acted upon a wrong basis in charging months, and for the purpose of filling such contract for stamps for friction matches. The Swift Co. gave went to Chicago and made a contract with a railroad orders for stamps, and paid for each purchase within company to ship cattle for him to Indianapolis at $65 sixty days from the delivery of the stamps; and thus per car; and leaving an agent to ship, he returned to dealt from 1870 to 1878. No protest had been made by | Indianapolis to receive the cattle. The cattle of the the company, though years before, in 1806, a member first shipment of two car loads were sent to the cattle of the company “made repeated protests to the offi- yard of A., and after a few days a bill for $201.02 was cers of the internal revenue bureau” against its meth- sent to A., which he refused to pay, and informed the ods of computing commissions” in similar cases. agent of the railroad company that he had a contracu The court held: "A

of business and for the shipment at $65 per car; the agent denied a periodical settlement between the


knowledge of auy such contract, and insisted that the sioner of internal revenue and a regular periodi- bills must be paid as presented, and that he would not cal purchaser of revenue stamps entitled deliver any future car loads of cattle until the freight statute to commissions on his purchases pay

was paid, as ho made it up from the way bills, and able in money, which shows that the commissioner as- that the bill included other things besides freight, serted and the purchaser accepted that the business which he could not itemize. It was agreed that A. should be conducted upon the basis of payments of the should pay under protest and also future freight, and commissions in stamps at their par value instead of the cattle should be delivered as they arrived, and A. in money, does not preclude the purchaser from as- should reserve the right to recover any sum so paid serting his statutory right, if he had no choice, and if unjustly. In pursuance of this agreement the agent the only alternative was to submit to an illegal exac

delivered the cattle at the yard of A. as they arrived tion or discontinue his business." And the court also from time to time, and as soon as the bills were preheld: “When the commissioner of internal revenue pared they were paid by A. Held, that the payments adopted a rule of dealing with purchasers of stamps were not voluntary, and that A. could recover all sums which deprived them of a statutory right to be paid so paid in excess of his contract price." And Buskirk, their commissions in money, and obliged them to take J., says: “We are of opinion that the money so paid them in stamps, and made known to those interested could be recovered back if there had been no valid that the rule was adopted and would not be changed, agreement that it might be. While the appellants the rule dispensed with the necessity of proviug in each were not in the actual possession of the cattle of the instance of complying with it, that the compliance appellee, they possessed such power and control over was forced.” Mr. Justice Matthews said: “No for- the shipment and delivery thereof as gave them an



undue advantage over the appellee, and the necessity shown by defendant can aid the defendant in with. of the appellee was so great and pressing as to deprive holding from plaintiffs the money so unjustly obtained him of the freedom of his will."

by the defendant. The case of Chicago & Alton R. Co. v. C. V. & W. There was error in the courts below, and this court Coal Co., 79 Ill. 121, is as follows:

enters judgment for the plaintiffs for the amount “1. Certain individuals constructed a railroad twelve found by the court below, together with interest on miles long, extending from a coal mine, belonging to a the same from the first day of that term of court, and coal company, to a station on the Illinois Cent. railroad, costs of suit. and on April 30, 1869, they sold the same to a railroad Judgment reversed and judgment for plaintiffs. company and turned it over to them, and on the same

JOHNSON, C. J. Concurs in holding that under the day the company purehasing turned it over to another facts disclosed the excessive charges may be recovered railroad company. The last-named company operated back, but he dissents from the construction placed on the road in pursuance of the contract of sale between

section 12 of the act of 1848, which limits the rate of the first owners and the purchasers from them, for freight to five cents per ton per mile for distances of three years, complying with the terms of said contract as to rates of freight to be charged to the coal com

thirty miles or more, and reasonable rates for less dispany for transportation of its coal. The individuals packages and parcels weighing less than a ton, and

tances. He does not think that section applies to building and selling the road, and the coal company, were the same. Held, that the railroad company last

which by the usual custom are not shipped by weight.

MCILVAINE, J., dissenting. purchasing, by taking the road and recognizing the rates of freight established by the contract of sale,

[See 22 Am. Rep. 512; 24 id. 622; 30 id. 689; 15 id. adopted the contract, and were bound by its terms,

323; 13 id. 220; 19 id. 367; 56 N. Y. 289; 74 id. 125.and that the coal company could maintain an action

ED.] against them for a breach of it."

"2. In such a case, where the coal company had no UNITED STATES SUPREME COURT ABother outlet for its coal, and the railroad company ex.

STRACT.* acted 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 pay

WRIT OF ERROR-COMPROMISE-AFTER JUDGMENTment by them of the freight demanded, under such

DISMISSAL.- Where, after the rendition of the judgcircumstances, cannot be considered voluntary, and

ment sought to be reversed, the matter in controversy they would have the right to sue upon the contract

has been the subject of a valid compromise between and recover back the excess of freight paid over the

the parties to the litigation, which leaves nothing of contract rate."

the controversy presented by the record in the Su! Mr. Justice Breese said: “It can hardly be said

preme Court to be decided, the writ of error will be these enhanced charges were voluntarily paid by ap

dismissed on motion. This court has dismissed sevpellees. It was a case of life or death' with them, as

eral suits on grounds much more liable to the objecthey had no other means of conveying their coals to

tiou raised than the present case, as in the case of the markets offered by the Illinois Central, and were

Cleveland v. Chamberlain, 1 Black, 419, where the bound to accede to any terms appellants might im- plaintiff in error, having bought out the defendant's pose. They were under a sort of moral duress, by

interest in the matter in controversy, and having consubmitting to which appellants have received money

trol of both sides of the litigation in the suit, still from them which in equity and good conscience they sought for other purposes to have the case decided by ought not to retain."

this court. On evidence of this by affidavits the court In Mobile & Montgomery Ry. Co. v. Steiner, 61 Ala.

dismissed the writ. Similar cases in regard to suits 559, illegal charges for transporting cotton were recov

establishing patent rights or holding them void by the ered back. The court said: “The nature of the busi

inferior courts, as in Lord v. Veazie, 8 How. 254 ; ness considered, the shipper does not stand on equal

Wood Paper Co. v. Heft, 8 Wall. 336, have been disterms with the carrier in contracting for charges for

missed, because the parties to the suit having settled transportation; and if the shipper pays the rates es

the matter, so that there is no longer a real controtablished in violation of law by the carrier rather than

versy, one or both of them was seeking a judgment of forego his services, such payment is not voluntary in

this court for improper purposes, in regard to a questhe legal sense, and the shipper may maintain his ac

tion which exists no longer between those parties. It tion for money had and received to recover back the

is by reason of the necessity of the case that the eviillegal charge.'

dence by which such matters are brought to the attenTo the objection that the payments were voluntarily tion of the court must be that not found in the transmade, and therefore could not be recovered back, cript of the original case, because it occurred since Stone, J., said: “Railroads have so expedited and

that record was made up. To refuse to receive approcheapened travel and transportation; have so driven priate evidence of such facts for that reason is to defrom their domain all competing modes of transporta- | liver up the court as a blind instrument for the pertion, that the public is left no discretion but to employ petration of fraud, aud make its proceedings by such them, or suffer irreparable injury in this age of steam

refusal the means of inflicting gross injustice. The and electricity. They have their established rates of

cases and precedents we have mentioned are sufficient charges, and these the shipper must pay or forego their

to show that the proposition of plaintiff in error is unfacilities and benefits. To object or protest would be tenable. In the case of Board of Liquidation v. Louisan idle waste of words. The law looks to the sub

ville & N. R. Co., 109 U. S. 223, a question arose on the stance of things, and does not require useless forms or presentation of an order made by the authorities of ceremonies. The corporation and the shipper are in

the city of New Orleans to dismiss a suit in this court no sense on equal terms, and money thus paid to ob- in which that city was plaintiff in error. The order tain a necessary service is not voluntarily paid, as the

was based on a compromise between those authorities law interprets that phrase."

and the railroad company, which the board of The above citations are sufficient.

liquidation, intervening here, alleged to be without The foregoing principles and authorities show that authority, and fraudulent. The court here did not the payments made in this case should not be re

disregard the compromise or the order of the city to garded as voluntary, and that no principle of equity

* Appearing in 5 Supreme Court Reporter.

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