Pool v. Allen, 29 N. C. (7 Ired. L.) 120; Baltimore & S. R. Co. v. Faunce, 6 Gill, 68, 46 Am. Dec. 655; 16 Cyc. 744.

If money, having been taken by an officer of the government without warrant of law, is in the government's treasury, the court of claims has jurisdiction of a suit for its recovery.

Knote v. United States, 95 U. S. 149, 24 L. ed. 442; Ittner v. United States, 43 Ct. Cl. 336; Cartas v. United States, 48 Ct. Cl. 163; Pharis's Case, 16 Ct. Cl. 501; Delvin's Case, 12 Ct. Cl. 266.

No action lies against one person for anything done, assumed to be of value to such person, by another who had no reason to believe the supposed beneficiary desired that the thing should be done by him.

Clary v. Wolf, 34 R. I. 263, 83 Atl. 115; Hunt v. Cates, 61 Colo. 365, 157 Pac. 1162; Belknap v. Hayden, 1 Ky. L. Rep. 119; Boyer v. Joyal, 164 Mich. 662, 130 N. W. 326; Johnson v. Boston & M. R. Co. 69 Vt. 521, 38 Atl. 267; Whitsell v. United States, 34 Ct. Cl. 5; Day v. Caton, 119 Mass. 513, 515, 20 Am. Rep. 347; Keener, Quasi Contr. § 341.

There can be no estoppel of one party in a suit by reason of any action taken by him which did not mislead the other party in the determining of his own course.

Leggett v. Standard Oil Co. 149 U. S. 287, 294, 37 L. ed. 737, 741, 13 Sup. Ct. Rep. 902; Louisville & N. R. Co. v. Com. 97 Ky. 208, 30 S. W. 616; Weller v. Harrison Land Co. 195 Mich. 624, 161 N. W. 894; Kretz v. Fireproof Storage Co. 133 Minn. 285, 158 N. W. 397; Plummer v. Mold, 22 Minn. 15; Stoddard v. Johnson, 75 Ind. 20; Himrod v. Ft. Pitt Min. & Mill. Co. 135 C. C. A. 648, 220 Fed. 80; Columbus, S. & H. R. Co.'s Appeal, 48 C. C. A. 275, 109 Fed. 177; Atkison v. Plum, 50 W. Va. 104, 58 L.R.A. 788, 40 S. E. 587; Lash v. Rendell, 72 Ind. 475; Lawrence v. American Nat. Bank, 54 N. Y. 432; Edward v. McEnhill, 51 Mich. 160.

He who claims an estoppel of his adversary assumes the burden of proving every element thereof.

Perkins v. Missouri P. R. Co. 76 Neb. 252, 107 N. W. 260; Beaufort Lumber Co. v. Price, 144 N. C. 50, 56 S. E. 684; Cooper v. Order of Railway Conductors, 156 Iowa, 481, 137 N. W. 472; Petring v. Chrisler, 90 Mo. 649, 657, 3 S. W. 405; Elliott v. Keith, 102 Ga. 117, 29 S. E. 155; Blanck v. Pioneer Min. Co. 93 Wash. 26, 159 Pac. 1077; Sawyer v. Metters, 133 Wis. 350, 358, 113 N. W. 682.


gued the cause and filed a brief for appellee:

Viewing the claim in the most favorable light, and assuming that an actual mistake was made, of a kind that would predicate recovery, the amount that could be recovered could not exceed the difference between the amount paid as postage and the amount which would have been paid had the newspapers been sent by express. Concededly, the claimant received a benefit; in fact, it obtained the object it desired, the transportation of its newspapers. Something was due the government, it could not be less than the express rate, and this much it would be entitled to retain in any event.

Woodward, Quasi Contr. § 20, p. 30; Keener, Quasi Contr. p. 41; Merchants' Nat. Bank v. National Bank, 139 Mass. 513, 2 N. E. 89.


The amendment amounts simply to a statement in the prayer of the petition that an amount is in controversy which would give the right to appeal to this court. The petition on its face, and the facts as found by the court of claims, show that if claimant is entitled to recover at all it cannot more than $1,792.21, and that therefore this is the amount in controversy. The appeal should accordingly be dismissed. Vance v. W. A. Vandercook Co. 170 U. S. 438, 472, 42 L. ed. 1100, 1112, 18 Sup. Ct. Rep. 645; Barry v. Edmunds, 116 U. S. 550, 560, 29 L. ed. 729, 732. 6 Sup. Ct. Rep. 501; Wilson v. Daniel, 3 Dall. 401, 407, 1 L. ed. 655, 657; Grand Trunk Western R. Co. v. United States, 246 U. S. 652, 62 L. ed. 922, 38 Sup. Ct. Rep. 335.

The facts found establish no enforceable contractual obligation on the part of the United States.

United States v. Berwer, 139 U. S. 278, 281, 282, 35 L. ed. 190, 191, 11 Sup. Ct. Rep. 538; Claflin v. Godfrey. 21 Pick. 1; Keener, Quasi Contr. pp. 34, 67, 71, et seq.; Woodward, Contr. §§ 10, 31.

Mr. Justice Pitney delivered the opinion of the court:

This suit was brought to recover moneys paid for the transportation of newspapers in the mails, upon the ground that they were paid under mistake of fact. The court of claims dismissed the petition. 53 Ct. Cl. 612.

The facts are as follows: Claimant was engaged in publishing at Knoxville, Tennessee, a daily morning newspaper having a circulation in eastern Tennessee and adjacent parts of Virginia and North Assistant Attorney General Davis ar- Carolina. It sent out a considerable part

254 U. S.

of its daily issue, destined for points on mail transfer clerk took the sacks of the United States postal route between papers, ascertained the net weight, and Bristol and Chattanooga, or on other caused them to be transported as secondpostal routes connecting therewith, upon class mail matter upon the same train. a Southern Railway train leaving Knox- The net weight was reported to the postville at 4 A. M. daily. The mail was de- master, and he charged to claimant's acspatched in wagons from the main post- count the proper second-class postage office at Knoxville to the office of a mail thereon. The system adopted was that transfer clerk at the railway station, the claimant made a deposit with the postwagons being operated by persons having master to cover postage to accrue, and contracts for the purpose with the United renewed the deposit from time to time, States postal authorities. For claimant's as it was reduced by charges against it. convenience, the postoffice authorities con- During the year 1907 the express comsented that its newspapers might be pany's office was removed to a distance weighed, for mailing, at the railway sta- of about 150 yards from the transfer tion instead of at the postoffice; claimant furnishing scales for the purpose. The mail wagons, under an arrangement between claimant and the contractor, called at claimant's place of business and carried the newspapers thence to the station. For this service claimant compensated the contractor or the driver. While this arrangement was in effect, and in the fall of the year 1906, claimant concluded to transport a part of the newspapers by express instead of mail, the express charges upon large lots being one half the postal charge for transporting newspapers as second-class mail. It notified the express company of this purpose, and requested the express agent to be on the watch. Thereafter [583] it caused certain copies of its newspaper intended for newsdealers therefore sent by mail-to be wrapped in bundles and labeled "Express or baggage," with directions for throwing them off the train at the several destinations. Other copies of the paper, intended for subscribers and for newsdealers, were placed, properly addressed, | in mail sacks. The method of transporting the papers to the railway station continued as before, those intended to go by express and those contained in mail sacks being carried upon the same wagon, and the driver instructed to take them to the railway station, which he did, depositing bundles and sacks on the platform where all mail was deposited. In the fall of 1906, and for about a year thereafter, the express company's office The government insists that this court adjoined that of the mail transfer clerk, is without jurisdiction to entertain the the doors of the two opening upon the appeal, upon the ground that the amount same platform. Claimant's representative in controversy is less than the $3,000 had notified the express company's agent specified in the applicable provision, § of the purpose to send certain of the 242 of the Judicial Code (Act of March papers by express, and, pursuant to that 3, 1911, chap. 231, 36 Stat. at L. 1087, notice, until about October, 1908, a porter 1157, Comp. Stat. §§ 968, 1219, 4 Fed. from the express agent's office went to Stat. Anno. 2d ed. p. 815, 5 Fed. Stat. the platform, took the bundles of news- Anno. 2d ed. p. 887). It is said that, papers labeled as mentioned, and caused viewing the claim in the most favorable them to be transported by express. Dur-light, and assuming a mistake was made ing the same period the United States entitling claimant to recover, the amount

clerk's office, and about a year after this the express messenger or porter ceased calling at the mail platform for the bundles of papers labeled for transportation by express. Why he did so does [584] not definitely appear. Thereafter and down to March 31, 1913, claimant's newspapers, whether in sacks or in bundles, were alike treated as mail matter by the United States mail transfer clerk, who weighed them all and reported the net weights to the postmaster, and the bundles and sacks were transported to their respective destinations as second-class mail matter. The charge appropriate for such mail matter was regularly made against claimant's deposit, and paid by claimant during the entire period. In the spring of 1913 claimant's business manager, having his attention called to the fact that the express bills were small, discovered upon investigation that the bundles of papers labeled "Express" were being transported as second-class mail matter; and the present suit followed. During the period referred to approximately 358,442 pounds of newspapers were transported by the United States mail that were labeled "Express," and had been intended by claimant to be transported by express. Claimant paid thereon the regular secondclass mail matter rate of 1 cent per pound, aggregating $3,584.42. The transportation of the same matter by express would have cost claimant $1,792.21.

Judgment affirmed.

recoverable could not exceed the difference, 194 U. S. 315, 323, 48 L. ed. 994, 996, between what was paid as postage and 24 Sup. Ct. Rep. 727; Tempel v. United what would have been paid had the news- States, 248 U. S. 121, 129, 63 L. ed. 162, papers been sent by express, that is to 164, 39 Sup. Ct. Rep. 56; Ball Engineersay, $1,792.21. But, while in its original ing Co. v. J. C. White & Co. 250 U. S. petition claimant prayed recovery for 46, 57, 63 L. ed. 835, 841, 39 Sup. Ct. Rep. only the latter amount, in an amendment 393. made by leave of the court it sought a return of the entire $3,584.42, on the [585] ground that there was a failure of consideration, and it was entitled to a return of the whole sum, as paid by mistake. The amount in controversy is to be determined by the amended rather than the original petition (Washer v. Bullitt County, 110 U. S. 558, 561, 562, JOHN LEWIS SMITH and Edwin L. Wil

28 L. ed. 249-251, 4 Sup. Ct. Rep. 249); and since there is nothing in the nature of the case to prevent a recovery of the entire amount, were claimant's view of the law sustained, the amount claimed is the amount in controversy within the meaning of the jurisdictional act, notwithstanding there may be a defense to a part that would not extend to the entire claim. Barry v. Edmunds, 116 U. S. 550, 560, 561, 29 L. ed. 729, 732, 733, 6 Sup. Ct. Rep. 501; Schunk v. Moline, M. & S. Co. 147 U. S. 500, 504, 505, 37 L. ed. 255, 258, 13 Sup. Ct. Rep. 416; Vance v. W. A. Vandercook Co. 170 U. S. 468, 472, 42 L. ed. 1111, 1112, 18 Sup. Ct. Rep. 645; Smithers v. Smith, 204 U. S. 632, 642, 643, 51 L. ed. 656, 660, 661, 27 Sup. Ct. Rep. 297.

Upon the merits, we concur in the opinion of the court of claims that there is no legal basis for a recovery. The money was not paid under any such mistake as to render it inequitable for the

[586] E. HILTON JACKSON, Receiver of the First Co-operative Building Association of Georgetown, District of Columbia, Petitioner.



(See S. C. Reporter's ed. 586-589.)


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fiduciary relation - purchase at foreclosure sale profits joint and several liability of receiver's associates.

An agreement by the receiver of a building association with his attorney and property at a public sale by the trustee a third person to join in the purchase of under a deed of trust securing a debt to the association, in case such third person should become the successful bidder, is such a violation of his obligations as a fiduciary as renders him and his associates jointly all the profits resulting from the purchase, and severally liable to the trust estate for although the estate may not have been injured thereby, the sale having been fairly conducted, with competitive bidding, and without improper influence to prevent competition or to close competitive bidding, or to bring about a sale to the purchaser in preference to anyone else.

[For other cases, see Receivers. II. b: Joint

Creditors and Debtors, in Digest Sup. Ct. 1908.]

[No. 130.]

United States to retain it. The bundles
of newspapers actually were transported
as mail by the government, claimant being
charged by the postmaster the amount Argued December 17, 1920.
fixed by law for the service rendered, and
paying it without protest. No error is

uary 24, 1921.

Decided Jan

N WRIT of Certiorari to the Court

shown to have been made in the weights of Appeals of the District of Colum

or in the rate charged. So far as any "mistake" appears from the findings, it was that of claimant's agents in causing or permitting the papers to go by mail instead of by express, as claimant intended. There is no finding attributing negligence or other fault to the mail transfer clerk; but if there were such, and claimant's loss were attributable to it, this would not form a ground for recovery, since the United States has not consented to be sued in the court of claims for the torts of its officers or agents. Bigby v. United States, 188 U. S. 400, 404-407, 47 L. ed. 519, 522, 523, 23 Sup. Ct. Rep. 468; J. Ribas y Hijo v. United States,

bia to review a decree which reversed a decree of the Supreme Court of the District, holding the associates of a receiver liable to the estate for the profits arising out of an enterprise undertaken by them which was antagonistic to the interests

Note. On powers and duties of receivers-see notes to Davis v. Gray, 21 L. ed. U. S. 447, and Shepherd v. Pepper, 33 L. ed. U. S. 706.

As to dealings of trustee with trust estate-sce notes to Wormley v. Wormley, 5 L. ed. U. S. 651, and Massie v. Watts, 3 L. ed. U. S. 181.

of the estate. Reversed. Judgment of the Supreme Court affirmed.

See same case below, 48 App. D. C. 565.

The facts are stated in the opinion.

Mr. W. W. Millan argued the cause and filed a brief for petitioner:

A receiver or other fiduciary cannot lawfully traffic, to his own profit, in interests and assets committed to his custody and control, nor can his counsel or third parties lawfully participate with him in the profits of such trafficking. Magruder v. Drury, 235 U. S. 106, 59 L. ed. 151, 35 Sup. Ct. Rep. 77; Wooddell v. Bruffy, 25 W. Va. 465; Hayes v. Hall, 188 Mass. 510, 74 N. E. 935; Enslen v. Allen, 160 Ala. 529, 49 So. 430; Johnston v. Little, 141 Ala. 382, 37 So. 592. In a suit in equity for the administration of an insolvent concern by a receiver, the receiver may so conduct himself as to justify his being made a party defendant, and those who unite with him in the violation of his duty towards the trust estate may be brought in as defendants, and required to account in that suit. Harrigan v. Gilchrist, 121 Wis. 127, 99

N. W. 909.

Mr. Louis Addison Dent argued the cause and filed a brief for respondents: The reference to the master was a reference of the whole case by consent. Unless, therefore, there was manifest error in the conclusion of the master, the court was wrong in overruling him. Every presumption of law must be resolved in favor of these respondents. Even in cases of actual fraud the presumption is in favor of the one charged.

Prevost v. Gratz, 6 Wheat. 481, 498, 5 L. ed. 311, 315; Kimberly v. Arms, 129 U. S. 512, 525, 32 L. ed. 764, 769, 9 Sup. Ct. Rep. 355; Boesch v. Gräff, 133 U. S. 697, 705, 33 L. ed. 787, 791, 10 Sup. Ct. Rep. 378.

If no manifest error was pointed out in the opinion of the trial court, an injustice was done to these appellants by the decree overruling the master, and it was properly set aside by the appellate court without any consideration.

Savannah F. & W. R. Co. v. Harrigan, 80 Ga. 602, 7 S. E. 280; Goldstein v. White, 43 N. Y. S. R. 121, 16 N. Y. Supp. 860; Curley v. Tomlinson, 5 Daly, 283.

The rule of a constructive trust has never been applied technically in the absence of a clear fiduciary relation to the property involved, and real injury or loss to the person owning it; that is, never when the transaction is, in effect, damnum absque injuria.

Clarke v. White, 12 Pet. 178, 196, 9 L. ed. 1046, 1054; Douglass v. Blount, 95 Tex. 369, 58 L.R.A. 699, 67 S. W. 484; Symmes v. Union Trust Co. 9 C. C. A 279, 13 U. S. App. 604, 60 Fed. 830; Yuster v. Keefe, 46 Ind. App. 460, 90 N. E. 920; Trice v. Comstock, 61 L.R.A. 176, 57 C. C. A. 646, 121 Fed. 620; Boone v. Chiles, 10 Pet. 177, 9 L. ed. 388; Schroe721, 725, 16 Sup. Ct. Rep. 512; Howe der v. Young, 161 U. S. 334, 340, 40 L. ed. V. Howe & O. Ball Bearing Co. 83 C. C. A. 536, 154 Fed. 820; Naddo v. Bardon, 2 C. C. A. 335, 4 U. S. App. 642, 51 Fed. 493; Steinbeck v. Bon Homme Min. Co. Williams, 100 Fed. 172; Melms v. Pabst 81 C. C. A. 441, 152 Fed. 333; Ryan v. Brewing Co. 93 Wis. 170, 57 Am. St. Rep. 899, 66 N. W. 518; 27 Cyc. 1482; Allen v. Gillette, 127 U. S. 589, 596, 32 Starkweather v. Jenner, 27 App. D. C. L. ed. 271, 274, 8 Sup. Ct. Rep. 1331; 357; Leavenworth County v. Chicago, R. I. & P. R. Co. 134 U. S. 688, 704, 33 L. ed. 1064, 1072, 10 Sup. Ct. Rep. 708; Pewabic Min. Co. v. Mason, 145 U. S. 349, 361, 36 L. ed. 732, 736, 12 Sup. Ct. Rep. 887; Dexter v. Harris, 2 Mason, 531, Fed. Cas. No. 3,862; The Ruby, 38 Fed. 622; Cooley v. Cooley, Tenn. —, 37 S. W. 1028; Wagner v. Swift's Iron & Steel Works, 16 Ky. L. Rep. 273, 26 S. W. 720; Hess v. Voss, 52 Ill. 481; Mansfield v. Wallace, 217 Ill. 610, 75 N. E. 682; Herr v. Payson, 157 Ill. 244, 41 N. E. 732; Lee v. Howell, 69 N. C. 200; Ewing v. Parrish, 148 Mo. App. 501, 128 S. W. 538; Ex parte Crump, 16 Lea, 732; Blackmore v. Shelby, 8 Humph. 438; Lusk's Appeal, 108 Pa. 152; Bruner v. Finley, 187 Pa. 389, 41 Atl. 334; Anderson v. Butler, 31 S. C. 183, 5 L.R.A. 166, 9 S. E. 797; LeConte v. Irwin, 19 S. C. 559; Mulherin Sons v. Rice, 106 Ga. 810, 32 S. E. 865; Price v. Winter, 15 Fla. 66.

The sale in question was a sale by a trustee under a power in a deed of trust, and was in the sole control of that trustee. The trustee was bound to make the sale in accordance with the terms of his power, and, so long as he did so, he could not be interfered with. He represented both the debtor and creditor parties to the trust.

Richter v. Jerome, 123 U. S. 233, 247,

31 L. ed. 132, 137, 8 Sup. Ct. Rep. 106; Gray v. Robertson, 174 Ill. 242, 51 N. E. 248; Blossom v. Milwaukee & C. R. Co. 3 Wall. 196, 18 L. ed. 43; Fletcher v. Ann Arbor R. Co. 53 C. C. A. 647, 116 Fed. 479; Smith v. Black, 115 U. S. 308, 29 L. ed. 398, 6 Sup. Ct. Rep. 50; Twin Lick Oil Co. v. Marbury, 91 U. S. 587, 591, 23 L. ed. 328, 330, 3 Mor. Min. Rep. 688;

Merryman v. Blount, 79 Ark. 1, 94 S. W., adequacy of price, an inference of fraud, 714.

His duty was to make the sale for the creditor, as provided by the trust, and to conduct it fairly for the debtor.

Smith v. Olcott, 19 App. D. C. 61. He acts independently of either party. Chesapeake Beach R. Co. v. Washington, P. & C. R. Co. 23 App. D. C. 587.

The court could not, therefore, in this dissolution proceeding, control the sale or interfere with the equitable interest and rights of the debtor or the legal title of the trustee; or in any proceeding unless the trustee should be guilty of misconduct or fraud.

Bank of Metropolis v. Guttschilck, 14 Pet. 19, 29, 10 L. ed. 335, 340; Mutual F. Ins. Co. v. Barker, 17 App. D. C. 218; Anderson v. White, 2 App. D. C. 417; Shea v. Dulin, 3 MacArth. 339; 27 Cyc. 968, 1148.

The appointment of the receiver could give no control or right of interference (Hitz v. Jenks, 16 App. D. C. 530); for the appointment of a receiver cannot affect the status of contract liens.

Kneeland v. American Loan & T. Co. 136 U. S. 89, 97, 34 L. ed. 379, 383, 10 Sup. Ct. Rep. 950; Fourth Street Nat. Bank v. Yardley, 165 U. S. 634, 683, 41 L. ed. 855, 865, 17 Sup. Ct. Rep. 439; McRae v. Bowers Dredging Co. 86 Fed. 344; Cohen v. Gold Creek Nevada Min. Co. 95 Fed. 580.

It must be borne in mind that, in the more modern cases on this question, the English rule that a purchase by one occupying a fiduciary relation to the subject-matter of the transaction is void, has not been followed in this country. It is voidable only at the election of the cestui or a correlate on seasonable demand.

Hammond v. Hopkins, 143 U. S. 224, 36 L. ed. 134, 12 Sup. Ct. Rep. 418; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 591, 23 L. ed. 328, 3 Mor. Min. Rep. 688; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932.

This whole proceeding in the trial court had no solid foundation in law, principles, or morals; and the superstructure was flimsy. It rested wholly on an atmosphere of suspicion. The attempt was made, notwithstanding a voluntary denial of any imputation of actual fraud, to hold these respondents liable for having gained a profit by a breach of duty,-a profit made inferentially because of supposed inadequacy of price, for, I take it, the receiver would not have set up a constructive trust if the speculation of the purchasers had proved unprofitable. It is an attempt to build up, out of supposed in

notwithstanding the principle enunciated in innumerable cases that inadequacy of price alone is not ground for setting aside a sale; that it must be either so gross as to shock the conscience of the court, or be accompanied by such other facts as themselves raise the presumption of fraud. No such presumption arises out of the mere inadequacy alone.

Graffam v. Burgess, 117 U. S. 180, 191, 29 L. ed. 839, 842, 6 Sup. Ct. Rep. 686; Hayes v. Huddleson, 40 App. D. C. 191, Ann. Cas. 1914B, 1037.

The allowance of this recovery with the expressed purpose of paying counsel fees out of it is improper. Conceding it to be in the nature of a recovery for damages, yet counsel fees are never an element of damages.

Day v. Woodworth, 13 How. 363, 371, 12 L. ed. 181, 188; Flanders v. Tweed, 15 Wall. 450, 21 L. ed. 203; The Nuestra Señora de Regla, 17 Wall. 29, 21 L. ed. 596; Philp v. Nock, 17 Wall. 460, 21 L. ed. 679; Stewart v. Sonneborn, 98 U. S. 187, 197, 25 L. ed. 116, 120; Tullock v. Mulvane, 184 U. S. 497, 511, 46 L. ed. 657, 665, 22 Sup. Ct. Rep. 372; Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 46 L. ed. 673, 22 Sup. Ct. Rep. 446.

There are also several principles militating against the propriety of the allowance of interest on this recovery, as well as authority against it.

Nash & L. R. Corp. v. Boston & L. R. Corp. 9 C. C. A. 468, 21 U. S. App. 59, 61 Fed. 237; The Ann Caroline, 2 Wall. 538, 547, 17 L. ed. 833, 835; Gray v. District of Columbia, 1 App. D. C. 20; Knight v. Reese, 2 Dall. 182, 1 L. ed. 340; Redfield Exrs. v. Ystalyfera Iron Co. 110 U. S. 174, 28 L. ed. 109, 3 Sup. Ct. Rep. 570; United States v. Sanborn, 135 U. S. 271, 281, 34 L. ed. 112, 115, 10 Sup. Ct. Rep. 812; Redfield v. Bartels, 139 U. S. 694, 703, 35 L. ed. 310, 313, 11 Sup. Ct. Rep. 683; Jourolmon v. Ewing, 26 C. C. A. 23, 47 U. S. App. 679, 80 Fed. 604; Marmion v. McCellan, 11 App. D. C. 494; Gifford v. New Jersey R. & Transp. Co. 10 N. J. Eq. 171; District of Columbia v. Metropolitan R. Co. 8 App. D. C. 377; Day v. Woodworth, 13 How. 363, 371, 12 L. ed. 181, 188; Milwaukee & St. P. R. Co. v. Arms, 91 U. S. 489, 23 L. ed. 374; Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101, 107, 37 L. ed. 97, 101, 13 Sup. Ct. Rep. 261; Scott v. Donald, 165 U. S. 58, 86. 41 L. ed. 632, 635, 17 Sup. Ct. Rep. 265.

One of the errors of the trial court was in holding these respondents at all

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