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Brief for Plaintiffs.

“ If, under this finding of facts, and under the acts of Congress and acts of Assembly offered in evidence, and the postal regulations in evidence, the court should be of the opinion that the plaintiffs, as widow and children of deceased, are entitled to recover, then judgment to be entered on the verdict in favor of the plaintiffs.

“ If the court should be of the opinion that the 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 reversed by the Supreme Court of Pennsylvania on the ground that the deceased was not a passenger within the meaning of the proviso, and a judgment was rendered for defendant (see 96 Penn. St. 256), to which this writ of error was prosecuted.

Mr. Charles A. Ray, Mr. Edward A. Newman, and Mr. Thomas M. Bayne for plaintiffs in error submitted on their brief.—When the act of 1865, 13 Stat. 504, was passed, authorizing the appointment of postal clerks to travel in charge of mails, it was well settled that such persons while discharging their duties were entitled to the rights of passengers. In England and New York it was so settled as to mail agents. Callett v. London & Northwestern Railway, 16 Q. B.984; Nolton v. Western Railroad, 15 N. Y. 444. It was so settled as to the analogous case of a drover transporting stock. Pennsylvania Railroad v. Henderson, 51 Penn. St. 315. Being so settled the act of the legislature of Pennsylvania of 1868 should be so construed as not to deprive a Federal officer of this right, and thus impose upon him an additional hazard while discharging his duties. It is analogous to an attempt to tax his salary, which cannot be done. Dobvins v. Erie County, 16 Pet. 435. The proper construction is that the words,“ Provided that this section shall not apply to passengers,” is directed at existing facts and conditions. The elements necessary to fix the status

Opinion of the Court.

of a person with a railroad as a passenger were already settled. The statute declares that it shall not be construed so as to include such persons.

Mr. John Dalzell argued for defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court. He recited the facts as above stated, and continued :

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 :

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

“$ 4000 Rev. Stat. 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.

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 train to carry him without additional compensation. The statutes of the United States which authorize this employment and direct this service do not, therefore, make the person so engaged a passenger, or deprive him of that charac

Statement of Facts.

a

ter, in construing the Pennsylvania statute. Nor does it give to persons so employed any right, as against the railroad company, which would not belong to any other person in a similar employment, by others than the United 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.

DAKOTA COUNTY v. GLIDDEN.

IN ERKOR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF NEBRASKA.

Submitted January 6, 1885. – Decided January 28, 1885.

While payment of the sum recovered below in submission to the judgment is

no bar to the right of reversal of the judgment when brought here by writ of error, a compromise and settlement of the demand in suit, whereby a new agreement is substituted in place of the old one, extinguishes the cause of action, and leaves nothing for the exercise of the jurisdiction of

this court. Evidence of facts outside of the record, affecting the proceeding of the court

in a case on error or appeal, will be received and considered, when deemed necessary by the court, for the purpose of determining its action.

This was a motion to dismiss. The suit was on county bonds issued in aid of a railroad. Judgment below for the plaintiff. The defendant brought a writ of error to reverse it. Subsequently to the judgment, the county settled with the plaintiff and other bondholders, by giving them new bonds bearing a less rate of interest, and the old bonds, which were the cause of action in this suit, were surrendered and destroyed. These facts were brought before this court by affidavits and transcripts from the county records, accompanied by a motion to dismiss the writ of error.

Mr. R. P. Ranney and Mr. J. M. Woolworth, in support of the motion.

Opinion of the Court.

Mr. A. J. Roppleton and Mr. J. M. Thurston opposing.I. The original bonds sued on were absolutely void. This is a settled question in this court. They were in all respects like the bonds passed upon in Dixon County v. Field, 111 U. S. 83. -II. The compromise bonds were issued without authority and were void for lack of power. If it be claimed that the Supreme Court of Nebraska has recognized their validity, it is answered that this conflicts with Dixon County v. Field, cited above, and that in questions involving the validity of negotiable instruments, this court is not bound by the decisions of State courts. Pine Grove v. Talcott, 19 Walll 666; Olcott v. Supervisors, 16 Wall. 678; Gelpoke v. Dubuque, 1 Wall. 175.—III. The question of the validity of this compromise cannot be legitimately raised. It does not in any manner appear in the record, and ought not to be considered by the court.-IV. The circumstances and motives accompanying this proceeding, taken in connection with the resolute resistance of the adjoining County of Dixon, cannot be investigated in this court. This constitutes a strong reason for relegating the question of the validity of the alleged compromise to an appropriate tribunal.

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 controversy presented by the present record to be decided.

The evidence of this compromise is not found in the record of the case in the Circuit Court, nor in any proceedings in that court, and it is argued against the motion to dismiss that it cannot, for that reason, be considered in this court.

It consists of duly certified transcripts of proceedings of the Board of Commissioners of Dakota County, who are the authorized representatives of that county in all its financial mat

Opinion of the Court.

ters, of receipts of the parties or their attorneys, and of affidavits of persons engaged in the transaction.

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 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 meetings of the board of commissioners, resulted in such settlement.

The judgment in the case was rendered on certain coupons for interest due on bonds issued by said county to aid in constructing railroads. These bonds bore interest at the rate of ten per cent. per annum, and became due in the year 1896. By the new agreement the county took up the bonds and the coupons on which judgment was rendered, and issued new bonds bearing six per cent. interest, the principal payable in the year 1902. These new bonds were delivered to plaintiff and accepted by him in satisfaction of his judgment and of his old bonds, and these latter were delivered by him to the county authorities and destroyed by burning.

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 ejectment 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 judgment 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 bad levied a tax to raise the money, or had in any other way satisfied 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.

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

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