ANNA M. PRICE, Widow of ALFRED J. the mail car on the mail train of said road to re

[222]

COUNTY OF DAKOTA

law is with the defendant, then judgment to be
entered in favor of the defendant, non obstante
veredicto."

Upon this verdict the Judge of the trial court
held that the deceased was a person engaged in
and about the train, within the meaning of the
Act of 1868, but that he was also within the
proviso as a passenger, and gave judgment for
plaintiff on the verdict. The judgment was re-
versed by the Supreme Court of Pennsylvania
on the ground that the deceased was not a pas-
senger within the meaning of the proviso, and
a judgment was rendered for defendant, to
which this writ of error is prosecuted.

The plaintiff argues here, and insisted throughout the progress of the case in the State Courts, that by reason of certain laws of the United States as applied to the facts found in the verdict of the jury, the decedent was a passenger, and the Supreme Court erred in holding otherwise.

These laws are thus cited in the brief of plaintiff's counsel:

"Sec. 8, Act March 3, 1865, 13 Stat. at L., 506, provides that 'For the purpose of assorting and distributing letters and other matter in railway postoffices, the Postmaster-General may from time to time appoint clerks, who shall be paid out of the appropriation for mail transportation.'

Sec. 4000, Rev. Stat. U. S., requires that 'Every railway company carrying the mail shall carry on any train which may run over its road and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.'

We do not think these provisions either aid or govern the construction of the proviso in the Pennsylvania Statute.

Ν

IN ERROR to the Circuit Court of the United

States for the District of Nebraska.
On motion to dismiss.

This action was brought in the court below,
by the defendant in error, to recover the amount
alleged to be due on certain interest coupons of
bonds issued by the defendant.

The trial resulted in a verdict and judgment for the plaintiff of $14,693.91, with costs. Whereupon, the defendant sued out this writ of error.

The facts of the case are sufficiently stated by the court.

Messrs. J. M. Woolworth, R. P. Ranney and A. P. Hodges,for defendant in error, in support of motion.

Messrs. A. J. Poppleton and J. II.Thurston, for plaintiff in error, contra.

Mr. Justice Miller delivered the opinion of the court:

This case comes before us on a motion to dismiss the writ of error.

The ground of this motion is that since the judgment was rendered, which plaintiff in error now seeks to reverse, the matter in controversy has been the subject of compromise between the parties to the litigation, which is in full force and binding on plaintiff and defendant, and which leaves nothing of the coutroversy presented by the present record to be decided."

The person thus to be carried with the mail matter, without extra charge, is no more a passenger because he is in charge of the mail, nor because no other compensation is made for his transportation, than if he had no such charge, nor does the fact that he is in the employment of the United States, and that defendant is bound by contract with the government to carry him, affect the question. It would be just the same if the Company had contracted with any other person who had charge of freight on the The evidence of this compromise is not found train, to carry him without additional compen- in the record of the case in the circuit court, sation. The statutes of the United States which nor in any proceedings in that court, and it is authorize this employment and direct this serv-argued, against the motion to dismiss, that it ice do not, therefore, make the person so en- cannot, for that reason, be considered in this gaged a passenger, nor deprive him of that court. character, in construing the Pennsylvania Stat- It consists of duly certified transcripts of proute. Nor does it give to persons so employed ceedings of the Board of Commissioners of Daany right, as against the railroad company, kota County, who are the authorized representwhich would not belong to any other person in atives of that County in all its financial mata similar employment, by others than the Unit-ters, of receipts of the parties or their attorneys, [224] and of affidavits of persons engaged in the transaction.

ed States.

We are, therefore, of opinion that no question
of federal authority was involved in the judgment
of the Supreme Court of Pennsylvania, and the
writ of error is accordingly dismissed.
True copy. Test:

These are undisputed on the other side, either
by contradictory testimony or by the brief of
counsel who appear to oppose this motion. They
leave no doubt of the fact if it is competent for
James H. McKenney, Clerk, Sup. Court, U. S. this court to consider them, that shortly after

the judgment against the County in favor of
Glidden was rendered, the parties entered into
negotiations to settle the controversy, which,
after due deliberation and several formal meet-
ings of the Board of Commissioners, resulted in
such settlement.

[225]

The judgment in the case was rendered on | to supply his place. The transfer of the interest
certain coupons for interest due on bonds is- of one of the parties, by assignment or by a ju-
sued by said County to aid in constructing rail- dicial proceeding in another court, as in bank-
roads. These bonds bore interest at the rate of ruptcy or otherwise, is brought to the attention
ten per cent per annum, and became due in the of the court by evidence outside of the original
year 1896. By the new agreement, the County record, and acted on. A release of errors may
took up the bonds and the coupons on which be filed as a bar to the writ. A settlement of
judgment was rendered, and issued new bonds the controversy, with an agreement to dismiss
bearing six per cent interest, the principal pay- the appeal or writ of error, or any stipulation
able in the year 1902. These new bonds were as to proceedings in this court, signed by the
delivered to plaintiff and accepted by him in parties, will be enforced, as an agreement to
satisfaction of his judgment and of his old submit the case on printed argument alone,
bonds, and these latter were delivered by him within the time allowed by the rule of this court.
to the county authorities and destroyed by burn-
ing.
There can be no question that a debtor against
whom a judgment for money is recovered may
pay that judgment and bring a writ of error to
reverse it, and if reversed can recover back his
money. And a defendant in an action of eject-troversy and having control of both sides of the
ment may bring a writ of error and, failing to
give a supersedeas bond, may submit to the
judgment by giving possession of the land,
which he can recover if he reverses the judg-
ment by means of a writ of restitution. In both
these cases the defendant has merely submitted
to perform the judgment of the court, and has
not thereby lost his right to seek a reversal of
that judgment by writ of error or appeal. And
so if, in the present case, the County had paid
the judgment in money or had levied a tax to
raise the money, or had in any other way satis-
fied that judgment without changing the rights
of the parties in any other respect, its right to
prosecute this writ of error would have remained
unaffected.

This court has dismissed several suits, on
grounds much more liable tothe objection raised
than the present case, as in the case of Cleveland [226]
v. Chamberlain, 1 Black, 419 [66 U. S., XVII.,
93], where the plaintiff in error, having bought
out the defendant's interest in the matter in con-

But what was done was a very different thing from that.

A new agreement, on sufficient consideration, was made, by which the judgment itself, the coupons on which it was recovered and the bonds of which these coupons were a part, were all surrendered and destroyed, and other bonds and other coupons were accepted in their place, payable at a more distant date and with a lower rate of interest, with the effect of extinguishing the judgment now sought to be reversed, so that the plaintiff in that judgment could not issue execution on it, though there is no supersedeas bond to secure its payment.

It is a valid compromise and settlement of a much larger claim, but it includes this judgment necessarily. It extinguishes the cause of action in this case. If valid, it is a bar to any prosecution of the suit in the circuit court, though we should reverse this judgment on the record as it stands, for errors which may be found in it. To examine these errors and reverse the judgment is a fruitless proceeding, because when the plaintiff has secured his object the relation of the parties is unchanged and must stand or fall on the terms of the compromise.

It is said that to recognize this compromise and grant this motion is to assume original instead of appellate jurisdiction.

But this court is compelled, as all courts are, to receive evidence dehors the record affecting their proceeding in a case before them on error or appeal.

The death of one of the parties, after a writ of error or appeal, requires a new proceeding

litigation in the suit, still sought for other pur-
poses to have the case decided by this court.
On evidence of this by affidavits the court dis-
missed 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 [75 U. S., XIX., 380], have been dismissed,
because the parties to the suit having settled the
matter, so that there is no longer a real contro-
versy; one or both of them were seeking a judg-
ment of this court for improper purposes, in re-
gard to a question which exists no longer be-
tween 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 to 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 the Board of Liq. v. R. R. Co., 109 U. S., 223 [XXVII., 917], 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 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, continued 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.

In the case before us we see no reason to impeach the transaction by which the new bonds

[227]

CHEONG AH MOY V. UNITED STATES. CAILLOT V. DEETKEN. 216-218; 215, 216

were substituted for the old, and for the judg- of error was filed in the circuit court and sev ment we are asked to reverse; and the writ of er-eral days before it was issued.

The question, therefore, which we are asked to decide is a moot question as to plaintiff in James H. McKenney, Clerk, Sup. Court, U. S. error, and if she was permitted to give bail it

CHAUNCEY D. SPAIDS, Plff. in Err.,

v.

DENNIS N. COOLEY.

(See S. C., Reporter's ed., 278–287.)

Deposition as evidence-new promise-to avoid Statute of Limitations-direction of verdict, when improper.

*The declaration in an action to recover money contained the common money counts. The defendant pleaded the general issue, and the Statute of Limitations. The plaintiff replied a new promise, within the statutory time. At the trial, before a jury, he offered in evidence a deposition, taken under a commission, to prove the new promise. The defendant objected to the deposition, but did not state any ground of objection. The bill of exceptions set forth that the court "sustained the objection, and refused to permit the said deposition to be read to the jury, and ruled it out because of its informality." The deposition appearing to be regular in form; and the evidence contained in it as to the new promise, being material and such as ought to have been before the jury; and the court below having instructed the jury that the plaintiff had not offered sufficient evidence of a new promise to be submitted to the jury, and directed a verdict for the defendant; and as, if there was such new promise, there was evidence on both sides, for the consideration of the jury, on the other issues, on prop; er instructions; and as the bills of exceptions did not purport to set out all the evidence on such other issues; this court reversed the judgment for the defendant, and awarded a new trial. [No. 171.]

Argued Jan. 19, 20, 1885. Decided Feb. 2, 1885.

IN ERROR to the Supreme Court of the Dis

trict of Columbia.

The history and facts of the case appear in the opinion of the court.

Mr. S. S. Henkle, for plaintiff in error. Messrs. W. Penn Clarke and Dennis N. Cooley, in person, for defendant in error.

Mr. Justice Blatchford delivered the opinion of the court:

"The plaintiff, to sustain the issue on his part,
offered evidence tending to show that, some
time in December, 1866, he became acquainted
with one John A. Hudnall, who had a claim
against the United States for cotton, captured
by the Army during the war of the rebellion,
the proceeds of which had gone into the Treas
ury of the United States; that said Hudnall [280]
had no means to employ counsel and applied
to him to undertake the collection of his, said
Hudnall's, claim against the United States; that
the plaintiff agreed to do so for a contingent
fee of 30 per cent of the amount to be recov
ered; that plaintiff thereupon associated with
himself one Joseph Parrish, to whom he agreed
to give one fourth of the said fee, if he would
assist him in the collection of said claim; that,
neither the said Parrish nor the plaintiff being
a lawyer, they concluded to employ the de-
fendant to prosecute the said case in the United
States Court of Claims; that the defendant was
absent from the city at the time; that the con-
tract made by the plaintiff with Hudnall was in
writing, and the plaintiff thinks he inserted the
name of the defendant, as the contracting party
with Hudnall, at the suggestion of said Parrish
or one Weed, and because the plaintiff was not
an attorney at law; that the plaintiff and said
Parrish procured the form of a petition for in-
stituting a suit in the Court of Claims, and pre-
pared a petition, and had it printed and filed, ac-
cording to the rules of the Court of Claims,
signing the name of the defendant to said peti-

tion, as the attorney of record, Waitit pros

knowledge or consent; that the plaintiff
ceeded at once under the rules of the said court,
to take some testimony in the case on behalf of
the claimant; that he employed Judge Mer-
riman, a competent lawyer, to assist him in
taking the testimony; that the case was partly
prepared for trial before the return of the de-
fendant to the city, and, when he came, the
plaintiff and said Parrish called upon him, and
informed him what they had done and he ap-
proved of it and agreed to take charge of and
prosecute the said case; that Parrish said to the
defendant, that, if successful, he could have a
fee of $5,000, which the defendant said would

This suit was brought in the Supreme Court of the District of Columbia, on the 13th of December, 1876, by Chauncey D. Spaids against Dennis N. Cooley, to recover $6,593.70, with interest from July 1, 1868. The declaration contains the common money counts and noth-be entirely satisfactory; that they then left the ing more. There are two pleas; one denying indebtedness and the other averring that the alleged cause of action did not accrue within three years before the suit. The plaintiff's reply joins issue on the first plea and, as to the second plea, avers that the defendant promised to pay the debt named in the declaration with in three years next before the commencement of the suit. At the trial, the jury found "the issue in favor of the defendant," and there was a judgment accordingly, at Special Term. The plaintiff appealed to the General Term, which affirmed the judgment, and he brings the case here by a writ of error.

There are four bills of exceptions. They show that the trial took place in March, 1880. The first one contains the following statement:

*Head note by Mr. Justice BLATCHFORD.

NOTE. What promise, acknowledgment or payment takes case out of Statute of Limitations. See note to Wetzell v. Bussard, 24 U. S. (11 Wheat.), 309. When a verdict may be directed by the court. See note to Grand Chute v. Winegar, 82 U. S.(15 Wall.),

XXI., 174.

agreement made with Hudnall with the defend-
ant; that, subsequently, the defendant said to
the plaintiff that the contract did not provide
for making the fee a lien upon the judgment
which might be recovered, and he wanted
Hudnall to come and indorse this stipulation or
the agreement; that the defendant afterwards
took into partnership W. Penn Clark, and the
firm of Cooley & Clark did go on with the case [281]
and prosecute it to judgment, recovering about
$44,000, which was paid to said Clark; that the
money paid to said Clark was about $44,000,
and the plaintiff demanded from the defendant
his share of the fee, which defendant, who was
about leaving for his home in Iowa, said he had
instructed his partner Clark to retain, and not
pay over any of the money until the plaintiff
had been settled with; that said Clark did not
pay him any part; and that the fee retained
amounted to about $11,000. The plaintiff also
gave testimony tending to show that the defend-
ant had on several occasions promised to pay
the plaintiff his share of said fee, and once in
the City of Chicago, within three years before