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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.'

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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 arges 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 au 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 purehasing 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.'

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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

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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 an 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 AB-
STRACT.*

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 transcript 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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dismiss the case; but considering that the question of authority in the mayor and council of the city to make the compromise, and of the alleged fraud in making it, required the power of a court of original jurisdiction to investigate and decide thereon, coutinued the case in this court until that was done in the proper court. But when this was ascertained in favor of the action of the mayor and council, the suit was dismissed here on the basis of that compromise order. County of Dakota v. Glidden. Opinion by Miller, J.

[Decided Jan. 26, 1885.]

AGENT NOT

WRIT OF ERROR-NEGLIGENCE-MAIL PASSENGER.-As the statutes of the United States, which authorize the employment and direct the service of mail route agents, do not make an agent so carried by a railroad company a passenger, or deprive him of that character, in construing the Pennsylvania statute giving a right of action for death caused by negligence, a writ of error will not lie to review the decision of the Supreme Court of Pennsylvania holding that an agent so killed was not a passenger within the meaning of the State statute. Price v. Penn. R. Co. Opinion by Miller, J. [Decided Jan. 26, 1885.]

DEBTOR AND CREDITOR-SATISFACTION OF DEBT.— A creditor who receives from his debtor a certificate in writing, not negotiable, of the amount of his debt, and sells the certificate to a third person for value less than its nominal amount, thereby authorizes the purchaser to receive the amount from the debtor, and cannot, after the debtor has paid it to the purchaser, maintain any action against the debtor. A creditor who receives from his debtor a negotiable instrument of the debtor for the amount of his debt, and sells it for its market value to a third person, cannot sue the debtor on the original debt. See Cowdrey v. Vaudenburgh, 101 U. S. 572; Foss v. Lowell Savings Bank, 111 Mass. 285; Harris v. Johnston, 3 Cranch, 311; Emblin v. Dartuell, 1 Dowl. & L. 591. Looney v. Dist. of Columbia. Opinion by Gray, J. [Decided Jan. 26, 1885.]

CREDITOR'S ACTION-RESCUERS OF DEBTOR'S GOODS. -A judgment creditor has a right of action against the rescuers of the person or goods of the debtor seized by the sheriff to satisfy the judgment, or against one who prevents the seizure of the debtor's goods on execution. In Comyns' Digest, under the head of "Action on the Case for Malfeasance," A 5, it is stated that an action will lie for rescue of a person arrested upon mesne or judicial process, citing May v. Proby, 2 Cro. 419; Hodges v. Marks, id. 486; Mynn v. Coughton, Cro. Car. 109; or of goods taken in execution, citing Fitzherbert's Natura Brevium, 101, 102, Reg. 117. And the action lies by the party to the suit in which the arrest was, citing Hodges v. Marks, 2 Cro. 486; Mynn v. Coughton, Cro. Car. 109; 2 Rolle, Abr. 556, pl. 14, 15. Under the head of "Rescous," D 2, the same author says: "So if a person arrested upon mesne process be rescued, an action upon the case lies against the rescuers by the plaintiff in the suit, for he has the loss and no remedy against the sheriff," referring cases above cited, and also to Kent v. Elwis, 2 Cro. 242; May v. Proby, 3 Bulst. 200; Congham's case, Hut. 98. In 2 Rolle Abr. 556, pl. 14, 15, it is said: "If a sergeant of Loudon or bailiff of the counter take a man on a capias in process at my suit, and J. S. rescues him out of his possession, I may have a general writ of trespass against him, because the sergeant is, for this purpose, my servant as well as the king's, and because the taking out of the sergeant's possession, he being my servant, is a taking out of mine. Trin. 15, Jac. I., Wheatley v. Stone, adjudged

on a writ of error at Sergeant's Inn. But I may have action in the case as well. Trin. Jac. I., Speere v. Stone, affirmed same time; S. C. Hobart, 180, sub nom. Wheatley v. Stone." So in Mynn v. Coughton, Cro. Car. 109, cited in Bac. Abr. "Execution," O, it was held that if a defendant be rescued after being taken on a capias ad satisfaciendum, the plaintiff may have an action for the misfeasance against the rescuers; for he is the party who hath the loss, and to whom the injury is done, and he ought not to be compelled to sue the sheriff, who may be dead, and if he recover, the rescuers may plead it if sued by the sheriff, so that there is no danger of being double charged. 3 to 7., S. C. Hut. 98, sub nom. Congham's case. In May v. Sheriff of Middlesex, Cro. Jac. 419, which was an action on the case for escape on mesne process, it was held that rescue may be pleaded in bar, but not for escape on final process. On mesne process, the sheriff was not bound to take posse comitatus, and on rescues returned by sheriff on mesne process, process may be awarded against the rescuers, and an action on the case lies against them. S. C. 3 Bulst. 198-201, where a full argument by Coke and Doddridge is reported. The latter refers to Fitz. N. B. 102, to show that the party may sue rescuers. Hodges v. Marks, Cro. Jac. 485, was an action on the case for rescuing plaintiff's debtor out of sheriff's possession after arrest on mesne process, whereby the debtor escaped and went to places unknown. Held good, for the loss is the plaintiff's, as he cannot sue the sheriff; and therefore it reason that he should have action against those who did the injury to him whereby he lost his process and his means to recover his debt. Kent v. Elwis, Cro. Jac. 241; see also May v. Proby, 3 Bulst. 200; Bonham Strangewaie's case, 5 Mod. 217; Boothman v. Earl of Surry, 2 Term R. 5; Bonafous v. Walker, id. 126; Bentley v. Donnelly, 8 id. 127; See also Yates v. Joyce, 11 Johns. 136; Penrod v. Mitchell, 8 Serg. & R. 522; Mott v. Danforth, 6 Watts, 308; Kelsey v. Murphy, 26 Penn. St. 78; Meredith v. Johns, 1 Hen. & M. 584; Adler v. Fenton, 24 How. 408, distinguished. Findley v. McAllister. Opinion by Woods, J. [Decided Jan. 12, 1885.]

MUNICIPAL BONDS-KANSAS STATUTE-ELECTIONNOTICE-RECITALS INTEREST ESTOPPEL-BILL OF

EXCEPTIONS.-Bonds issued by Anderson county, in Kansas under legislative authority, and in payment of its subscription to the stock of a railroad company. after the majority of the voters of the county had at an election voted in favor of subscribing for the stock and issuing the bonds, recited on their face the wrong statute, but also stated that they were issued "in pursuance to the vote of the electors of Anderson county, of September 13, 1869." The statute in force required that at least thirty days' notice of the election should be given, and made it the duty of the board of county commissioners to subscribe for the stock and issue the bonds, after such assent of the majority of the voters had been given. In a suit against the board on coupons due on the bonds, brought by a bona fide holder of them, it appeared by record evidence that the board made an order for the election thirty-three days before it was to be held, and had canvassed the returns and certified that there was a majority of votes in favor of the proposition, and had made such vote the basis of their action in subscribing for the stock and issuing the bonds to the company; and the court directed the jury to find a verdict for the plaintiff. Held, (1) the statement in the bonds, as to the vote, was equivalent to a statement that the vote was one lawful and regular in form, and such as the law then in force required, as to prior notice; (2) as respected the plaintiff, evidence by the defendant to show less than thirty days' notice of the election could not avail; (3)

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the case was within the decision in Town of Coloma v. Eaves, 92 U. S. 484; (4) the rights of the plaintiff were not affected by any dealing by the board with the stock subscribed for; (5) the issue or use of the bonds not having been enjoined for two years and a half between the day of election and the time the company parted with the bouds for value, and the county having for ten years paid the interest annually on the bonds, it was estopped, as against the plaintiff, from defending, on the ground of a want of proper notice of the election; (6) as the bill of exceptions contained all the evidence, and the defendant did not ask to go to the jury on any question of fact, and the questions were wholly questions of law, and a verdict for the defendant would have been set aside, it was proper to direct a verdict for the plaintiff. In Pleasants v. Fant, 22 Wall. 116, 120, this court said, by Mr. Justice Miller, citing Improvement Co. v. Munson, 14 Wall. 448, that "in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Those cases were cited in Herbert v. Butler, 97 U. S. 319, 320, and this court there said, by Mr. Justice Bradley: "Although there may be some evidence in favor of a party, yet if it is insufficient to sustain a verdict, so that one based thereon would be set aside, the court is not bound to submit the case to the jury, but may direct them what verdict to render. It is true that in the above cases the verdict was directed for the defendant. But where the question, after all the evidence is in, is one entirely of law, a verdict may at the trial, be directed for the plaintiff, and where the bill of exceptions, as here, sets forth all the evidence in the case, this court, if concurring with the court below in its views on the questions of law presented by the bill of exceptions and the record will affirm the judgment. In Bevans v. United States, 13 Wall. 56, a verdict was directed for the United States, in a suit by them on the official bond of a public officer, and the ruling was sustained, the evidence for the plaintiff being all of it documentary; this court saying, by Mr. Justice Strong: "The instruction was therefore in accord-corporation was invalid as against the plaintiffs, there ance with the legal effect of the evidence, and there were no disputed facts upon which the jury could pass. The same rule was applied in Walbrun v. Babbitt, 16 Wall. 577, to the direction of a verdict for the plaintiff, after oral evidence which this court states "was received without objection, and about which there is no controversy," and on which it says it bases its decision. That was a suit to recover the value of goods transferred in fraud of the bankrupt law. In Hendrick v. Lindsay, 93 U. S. 143, the Circuit Court directed the jury to find for the plaintiffs, in an action on a bond of indemnity, the plaintiff's evidence being all of it documentary, and the defendant giving no evidence. This court said, by Mr. Justice Davis: "There were no disputed facts in this case for the jury to pass upon. After the plaintiffs had rested their case, the counsel for the defendant announced that he had no evidence to offer; and thereupon the court, considering that the legal effect of the evidence warranted a verdict for the plaintiffs, told the jury in an absolute form, to find for them. This was correct practice where there was no evidence at all to contradict or vary the case made by the plaintiffs; and the only question for review here is whether or not the court mistook the legal effect of the evidence." County of Anderson v. Beal. Opinion by Blatchford, J. [Decided Jan. 26, 1885.]

can be no decree against any of the other defendants. All the parties on one side of this controversy not being citizens of different States from all those upon the other side, the citizenship of the parties did not bring the case within the jurisdiction of the Circuit Court. Ayres v. Wiswall, 112 U. S. 187; S. C., ante, 90. No controversy has arisen under the Constituteon and laws of the United States. Neither the bill nor the answer, in terms or in effect, claims any right or involves any question under that Constitution or those laws. The question whether a party claims a right under the Constitution or laws of the United States is to be ascertained by the legal construction of its own allegations, and not by the effect attributed to those allegations by the adverse party. The bill, while alleging the lease made by the New York corporation to be inconsistent with its charter, illegal and void, does not assert or imply an intention to impugn the validity of any statute of the State for repugnancy to the Constitution or laws of the United States. And the counsel for the plaintiffs, at the hearing in the Circuit Court, as well as in this court, disclaimed the intention to do so. Should any such question arise in the progress of the cause, and be decided by the State court against a right claimed under the National Constitution and laws, relief may be had by writ of error from this court. But in the present condition of the case, the Circuit Court rightly held that it did not in. volve a controversy properly within its jurisdiction.

State of New Jersey by citizens of that State, stockholders in a New Jersey railroad corporation, against that corporation, and a Peunsylvania railroad corporation, and several individuals, citizens respectively of New Jersey and Pennsylvania, and directors in one or both corporations, alleged that without authority of law, and in fraud of the rights of the plaintiffs, and with the concurrence of the individual defendants, the New Jersey corporation, pursuant to votes of a majority of its stockholders made, and the Pennsylvania corporation took a lease of the railroad and property of the New Jersey corporation; and prayed that the lease might be set aside, the Pennsylvania corporation ordered to account with the New Jersey corporation for all profits received, the amount found due ordered to be paid to the New Jersey corporation by the Pennsylvania corporation, or upon its failure to do so, by the individual defendants, and the New Jersey corporation ordered to administer the property in conformity with its charter, and to pay over to the plaintiffs their share of that amount. The defendants answered jointly, denying the illegality of the lease, and removed the case into the Circuit Court of the United States, under the act of March 3, 1875, ch. 137, as involving a controversy between citizens of different States, and a controversy arising under the Constitution and laws of the United States. The Circuit Court, upon the plaintiffs' motion, remanded the case to the State court. Held, that the case was rightly remanded. The New Jersey corporation is in no sense a a merely formal party to the suit, or a party in the same interest with the plaintiffs; but is rightly and necessarily made a defendant. Hawes v. Oakland, 104 U. S. 450, 460; Atwool v. Merryweather, L. R., 5 Eq. 464, note; Menier v. Hooper's Tel. Co., L. R., 9 Ch. App. Cas. 350; Mason v. Harris, L. R., 11 Ch. Div. 97. There is no separate controversy between the plaintiffs and those directors who are citizens of Pennsylvania. The bill seeks affirmative relief against the directors, as well as against the two corporations, for one and the same illegal and fraudulent act. The single matter in controversy between the plaintiffs and all the defendants is the validity of that act; and unless it is determined that the action of the New Jersey

REMOVAL OF CAUSE-CITIZENSHIP-CORPORATIONS. -A bill in equity, filed in the Court of Chancery of the

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Gold Washing Co. v. Keyes, 96 U. S. 199; Smith v.
Greenhow, 109 id. 669. Central, etc., R. Co. v. Mills.
Opinion by Gray, J.
[Decided Jan. 19, 1885.]

MARYLAND COURT OF APPEALS ABSTRACT.*

INJUNCTION-RESTRAINING COLLECTION OF ASSESS

MENT-STATUTE MUST BE FOLLOWED-AMENDMENT

|

NOT AS TO VOID PROCEEDING.-The appropriation of private property to public use has been held by this court not to be "complete until the proprietor is paid or tendered the value of his property, as ascertained by the inquest or assessment. No preliminary step prior to actual payment or tender so fixes the corporation as to prevent au abandonment of the condemnation or of the enterprise." State v. Graves, 19 Md. 370; Graff v. Mayor, etc., 10 id. 551. In the case of Norris v. Mayor, etc, 44 Md. 604, the court said: "It has long been the settled law of Maryland that both private and municipal corporatious, when authorized to exercise the power of eminent domain, have the right to renounce the inquisition and select a more eligible route, or wholly to abandon the improvement or enterprise, at any time before actual payment of the amount assessed, either by commissioners or jury, and until that time no title to the property condemned vests in the corporation. But when this sum is paid or tendered the title vests and the constitutional requirement is gratified." There is a provision in art. 4, § 837, of the Code of Local Laws, and also in the act of 1878, ch. 143, which makes it the duty of the mayor and city council "to provide for collecting and paying over the amount of compensation adjudged to each person entitled, or investing it in the stock of the said corporation, bearing an interest of five per centum per annum, for the use of any such persons, who because of their infancy, absence from the city or any other cause, may be prevented from receiving it before any street, square, lane or alley, in whole or in part, shall be opened, extended, widened, straightened or closed up." The meaning of this statutory provision is so plain and apparent as to need no construction. The appellants admit, in their answer, that they have neither paid nor tendered the amount of compensation, nor invested it for the benefit of the owners of the property in conformity with the mode prescribed by the statute. Having therefore acquired no title nor right of entry for the purpose of appropriating the property for public uses, when they thus went upon the lands of the appellees without legal authority, they were intruders and trespassers; and when they constituted themselves a tribunal to determine what

amount of assessments should be paid by the rightful owners of the soil, their proceedings were ultra vires and absolutely null and void. In Williamson v. Berry, 8 How. 543, the Supreme Court of the United States, after referring to Att.-Gen. v. Lord Hotham, Turn. & Russ. 219, said: "The rule is that when a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create a necessity for an appeal.' And in another paragraph of the same opinion it is further said: "If it acts without authority its judgments and orders are nullities; they are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them; they constitute no justification, and all persons concerned in executing such judgments, or sentences, are considered in law as trespassers.' In the English courts it has been so frequently decided, as to have become a *Appearing in 62 Maryland Reports.

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settled principle, which cannot now be successfully controverted, that a void proceeding is so entirely vitiated as to be incapable of amendment. It has no effect whatever. Being absolutely null and void no person can justify under it. Kentworthy v. Peppiatt, 4 B. & Ald. 288; Parsons v. Lloyd, 2 W. Bla. 845; Grant v. Bagge, 3 East, 128; Carratt v. Morley, 1 Ad. & E. (N. S.) 18 (41 Eng. Com. Law); Mitchell v. Foster, 12 Ad. & E. 472; Brook v. Jenney, 1 Gale & D. 567. That when the city commissioner entered upon the property of the appellees and proceeded to impose upon them the burden of these assessments before the city had acquired any right or title by condemnation, he was a trespasser, there can be no doubt; and that his proceedings were not merely voidable but absolutely null and void, seems to be a proposition so clear as to be beyond the scope of controversy. It has been decided that a void proceeding is so entirely vitiated as to be incapable of amendment. It is therefore difficult to perceive how parties, who in legal contemplation occupy the attitude of intruders and tort feasors, can render valid proceedings which were null and void in their inception, by simply putting an offer on the record to pay damages which should have beeu paid anterior to an entry on the land. The offer itself is not even a tender, for it is an offer to pay the money when called for. Tenders are stricti juris and nothing is presumed in their favor. They must be unqualified and without condition. Brady v. Jones, 2 Dow. & Ry. 305; Glasscott v. Day, 5 Esp. 48;'Huxham v. Smith, 2 Camp. 21; Thomas v. Evans, 10 East, 101; Jennings v. Major, 8 C. & P. 61. But no subsequent act of a wrong-doer can render valid proceedings which were absolutely null and void ab initio. The appellees had these assessments imposed upon them by trespassers on their property. They wish to be relieved from the burdens thus imposed, and have properly invoked the aid of a court of equity. In Steuart v. Mayor, etc., 7 Md. 515, this court has said: "If the proceedings were illegal no sale could have been made under them for benefits, if proper steps had been taken to prevent it." Mayor, etc., v. Hook. Opinion by Yellott, J.

NEGLIGENCE-RAILWAY CROSSINGNEGLIGENCE-MUST LOOK AND LISTEN-FLAGMAN AT CROSSING-PRESUMPTION OF SELF PRESERVATION.—(1) The general principle is, that where both parties by their negligence directly contribute to the production of the accident, neither has a right to recover of the other for injuries sustained thereby. But there are exceptions to this general rule; and in cases like the present, the exception is, that if the defendant, or those acting for it, had become aware of the perilous situation of the plaintiff, though that peril had been incurred by the negligent or even reckless conduct of the plaintiff, yet the defendant or its agents would be bound to use all reasonable diligence to avoid the accident. But in order that this qualification of or exception to the general rule may be successfully invoked by the plaintiff, he must show knowledge on the part of the defendant, or its agents, of the peril in which he, the plaintiff, was placed, and that there was time after such knowledge, within which to make the effort to save him from the impending danger. (2) In the absence of statutory requirement, it is now well settled, at least by a great preponderance of authority, that there is no legal obligation on a railroad company to keep at the crossings of the public country roads flagmen to give warning to travellers on such roads of the passing of trains. It has been so held by this court, in the recent case of State, use of Foy v. Phil. Wil. & Balto. R. Co., 47 Md. 76, 86; and many decis. ions in the highest courts of the country might be cited in support of that ruling. The track of the rail

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