United States v. Norfolk & W. Ry. Co accepting the stock from the receiver, Bond, to be transported to St. Louis, the defendant became entitled to claim the benefits of all valid exceptions he had made with the shipper. Lawson, Carr. § 243." And in Express Co. v. Harris, supra, the court, distinguishing the case before it, said: "If the appellant had been designated in the contract with the first carrier as one of the intermediate carriers, or if the contract had provided that its stipulations should inure to the benefit of all the carriers, then the contention of the appellant would find strong support from the authorities. Express Co. v. Harris, 51 Ind. 127; Railroad Co. v. Weakly, 50 Ark. 397, 8 S. W. 134, 7 Am. St. Rep. 104; Halliday v. Railway Co., 74 Mo. 159, 41 Am. Rep. 309; Evansville & C. Railroad Co. v. Androscoggin Mills, 22 Wall. 594, 22 L. Ed. 724; Maghee v. Transportation Co., 45 N. Y. 514, 6 Am. Rep. 124; Lamb v. Transportation Co., 46 N. Y. 271, 7 Am. Rep. 327. And see, also, Evansville & C. Railroad Co. v. Androscoggin Mills, 22 Wall. 594, 22 L. Ed. 724; Fairbank v. Railway Co. (C. C.) 66 Fed. 471. In Railroad Co. v. Weakly, 50 Ark. 397, 8 S. W. 134, 7 Am. St. Rep, III, it was held: "The appellant, by receiving the stock, became their agent to complete their contract to the extent of shipping the stock over so much of its road as formed a part of the route over which the shipment was to be made. From this fact the law implied a privity between the parties to this action sufficient to enable appellees to sue appellant for any losses sustained by reason of its failure to perform the contract, and gave to appellant the benefit of all valid limitations contained in the agreement upon the carrier's liability. So that, while the burdens were imposed, the benefits of the limitations in the contract inured to appellant. Taylor v. Railroad Co., 39 Ark. 148-158; Halliday v. Railway Co.. 74 Mo. 159, 41 Am. Rep. 309, 6 Am. & Eng. R. Cas. 433; Hutch. Carr. §§ 251, 252, 254, 256.” For the reasons given, the judgment is affirme 1. UNITED STATES ex rel. COFFMAN v. NORFOLK & W. Ry. Co. et al. (Circuit Court, S. D. West Virginia, April 17, 1902.) [114 Fed. Rep. 682.] Mandamus-Plea in Abatement. The pendency of another mandamus may be pleaded in abatement of a second mandamus proceeding instituted in the same jurisdiction, wherein the parties and the questions involved are the same. Same-Identity of Controversy. Where a final judgment has been rendered in a former proceeding, but an appeal has been taken, and such judgment suspended by a supersedeas bond, and the pendency of such appeal is pleaded in abatement to a second mandamus proceeding, upon consideration of such plea the court is not confined to the pleadings in the former proceeding for the purpose of determining what the real issue therein United States v. Norfolk & W. Ry. Co was, but may look to the pleadings, the evidence, and the opinion of the court filed in support of, and as a part of, the judgment appealed from. Same-Interstate Commerce. C. instituted mandamus proceedings against the Norfolk & Western Railway Company et al. under an act of congress of March 2, 1889, alleging unjust discrimination against him, and in favor of C., C. & B. in the shipment of coal in interstate trade from the Pocahontas coal field, and procured an alternative writ commanding the railway company to furnish cars for the shipment of a specific cargo of coal. The railway company denied the allegations of the alternative writ, including the charge of unjust discrimination; and, by written stipulation, matters of law and fact were tried by the court. At the trial the railway company showed by the evidence that it had a system of car distribution, and that it furnished cars, under such system, uniformly to all shippers alike. The district judge found, as a matter of fact, that the system existed, and that it had been uniformly applied, and held, as matter of law, that such system was reasonable and lawful, and refused the peremptory, and discharged the alternative, writ of mandamus. The judge so finding filed a written opinion, as a part of the record, in support of his judgment. C. took a writ of error to the circuit court of appeals, and executed a supersedeas bond. Subsequently, the writ of error still pending, C. instituted another mandamus proceeding against the same respondents, alleging the same unjust discrimination, charging the same to be the result of the railway company's arbitrary and unlawful system of car distribution, and praying that a specific number of cars be furnished to him daily. The railway company pleaded the pendency of the first proceeding in abatement of the second: held, upon an inspection of the record upon a replication of nul tiel record, that the parties and subject-matter involved in the two proceedings were the same, and that the second should be abated. (Syllabus by the Court.) Mandamus. Harold A. Ritz and B. M. Ambler, for relator. Campbell, Holt & Duncan and Jos. I. Doran, for respondents. KELLER, District Judge. This case comes up upon the alternative writ of mandamus issued therein, and upon a plea of abatement interposed by respondents to said writ, setting forth that on January 15, 1901, in the circuit court for the district of West Virginia, a certain other mandamus proceeding was instituted by the relator against the respondents to compel the furnishing of cars and shipping facilities for transporting coal for the relator, and that in said proceeding the same right of the relator and the same duty on the part of respondents were alleged which are averred in the petition filed in this proceeding, and recited in the alternative writ issued herein; that the respondents in said former proceeding made return, denying the allegations of relator's petition; that issue was joined thereon, a jury waived by written stipulation of attorneys for all the parties, and the issue tried by the Honorable John J. Jackson, judge of said court, in lieu of a jury; that evidence was taken on behalf of both relator and respondents, and the pleadings and proofs submitted to the court and argued by counsel; and that such proceedings were had thereon that on June 15, 1901, a judgment was entered United States v. Norfolk & W. Ry. Co against the relator, and in favor of respondents, denying the peremptory writ of mandamus, quashing the alternative writ, and ordering that the respondents recover of the relator their costs. 109 Fed. 831. The plea then alleges that the parties to the former action were the same as the parties to this action, and that the matter in controversy in that action was and is the same as the matter in controversy in this action, namely, the legality of the said Norfolk & Western Railway Company's basis and method of coal-car distribution in the Pocahontas coal region; that the said matter in controversy in said former action was determined on its merits therein by the final judgment of the circuit court of the United States for the district of West Virginia, and that said judgment still remains in full force and effect; that from said final judgment a writ of error was allowed, on the petition of the relator, to the United States circuit court of appeals for the Fourth circuit, at Richmond, Virginia, and is still pending, undetermined, in said last-mentioned court; and respondents proffer to verify this plea by the record remaining in said last-mentioned court, a certified copy whereof is filed with the plea, and asked to be taken and read as part of the plea. Under the practice prevailing in West Virginia, the respondents at the same time tendered a motion to quash the alternative writ herein, and a plea in bar vouching the record remaining in the United States circuit court for the district of West Virginia in the former mandamus. To the filing of these pleas and this motion the relator, by his attorneys, objected, and at the same time tendered his motion to strike out said pleas and motion, and, in the event said motions should be overruled, offered his replications of nul tiel record to the plea in abatement and plea in bar tendered. This action was taken for the convenience of both counsel and court, and it was understood and agreed that, while all the questions involved were argued, the decision of the court should take up the matter in legal sequence, and only such matters should be decided as were essential to a final determination of the pleadings herein. We have first, then, the plea in abatement tendered by the respondents, with an objection interposed to its being filed, which I treat as a demurrer to the plea. The question, then, is whether a former action in mandamus, resulting in a final judgment adverse to relator, which judgment was carried by writ of error to an appellate court for review, and is still there undetermined, is sufficient to abate a subsequent action between the same parties, and involving the same subject-matter. The relator argues that the very terms of the statute (the interstate commerce act as amended; section 10, Act March 2, 1889) provide that the circuit and district courts of the United States shall have jurisdiction, upon the relation of any person or persons alleging such violation of said act as prevents relator from having interstate traffic moved by said United States v. Norfolk & W. Ry. Co common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus, etc., and that the terms of the statute contemplate the possible necessity and the certain power to issue more than one writ in favor of a relator. To this there may be several replies. It may be that the words "a writ or writs" were inserted to meet the grammatical necessities arising from the use, in the beginning of the section, of the words "upon the relation of any person or persons," as, if several persons asked the aid of the court, it might be necessary that several writs issue. Again, it may be that more than one writ might be awarded in favor of a single relator on account of repeated violations of the act in respect of such relator; and it might arise that a writ might be refused upon one application by a relator, and subsequently, upon a second application setting forth a different state of facts, a writ might be allowed. But the question now presented upon the objection to the filing of the plea is whether the pendency of a former mandamus proceeding in a court of competent jurisdiction is pleadable in abatement of a second action between the same parties, and with the same matter in controversy. I have no doubt that such is the law. As a general proposition, the pendency of a former suit between the same parties, and involving the same subject-matter, may be pleaded in abatement of a subsequent suit. Hogg, Pl. & Forms, pp. 168, 169, 88 213, 308; Id., § 245, note; Insurance Co. v. Burne's Assignee, 96 U. S. 588, 24 L. Ed. 737; Cook v. Burnley, II Wall. 659, 20 L. Ed. 29; Stephens v. Bank, 111 U. S. 198, 4 Sup. Ct. 336, 337, 28 L. Ed. 399. Merrill, in his work on Mandamus, says (page 343): "The pendency of another mandamus proceeding, wherein the parties and the questions involved are the same, may be pleaded in abatement." See, also, 13 Enc. Pl. & Prac. p. 728, and cases there cited; Merrill, Mand. § 315, and cases cited. The question then arises as to the status of the mandamus proceeding referred to in the plea as pending in the circuit court of appeals of the United States for the Fourth circuit. From the allegations of the plea, it appears that the action was heard upon its merits, and resulted in a final decision by Judge Jackson adverse to the relator; that a writ of error was allowed to the relator, by virtue of which said proceeding is now in the circuit court of appeals. Is this proceeding now a pending proceeding, in which case it is pleadable in abatement, or a final judgment, in which case, under the authorities cited in Merrill, Mand. § 315, it would be pleadable in bar? The answer to this question can make but little difference, save as it causes us to examine and try the plea in abatement or the plea in bar. In Boswell v. Tunnell, 10 Ala. 958, it was held that where the suit was pending on appeal the same rules will apply as where it was pending in the original court. In United States v. Norfolk & W. Ry. Co Illinois a writ of error may be pleaded in abatement to an action on a judgment if the writ was sued out before the action was commenced, and the writ of error acts as a supersedeas. McJilton v. Love, 13 Ill. 486, 54 Am. Dec. 449. It appears from the record filed with the plea herein that a supersedeas bond was given, and hence the writ of error in the case now in the court of appeals acted as a supersedeas under section 1000, Rev. St. I think it unnecessary to refer to all the authorities cited to show that a supersedeas does not suspend the operation of a judgment as an estoppel. They are very numerous and conclusive. I cite Ransom v. City of Pierre, 101 Fed. 665, 41 C. C. A. 585; Freem. Judgm. §§ 328, 433; Black, Judgm. § 960. For the foregoing reasons, I have overruled the objection to the filing of the plea in abatement, and also the motion to strike the same out. The plea in abatement now coming on for trial upon the replication nul tiel record thereto, I have examined the record vouched in the plea, and now offered in evidence in support of the allegations thereof, with considerable care. The gist of the contention is that the identical matter in controversy in this action was also in controversy and was decided in the former mandamus proceeding, tried in the circuit court of the United States for the district of West Virginia, the record of which case is now offered in evidence, and that said matter in controversy was the legality and reasonableness of the basis, system, or method of coal-car distribution for interstate traffic in what is known as the "Pocahontas Coal Field." Objection was made on behalf of the relator that the pleadings and judgment in the record do not show, or even tend to show, that this basis was at all in controversy in the former proceeding; that the only place where this becomes apparent is in the opinion of the court setting forth the reasons for its judgment; and that this opinion is neither in form nor effect a special finding of facts, and hence forms no part of the record, and cannot be looked to to determine what matters were actually in controversy in that proceeding. This conclusion does not appear to be supported in toto by the authorities cited, namely, Parks v. Turner, 12 How. 39, 13 L. Ed. 883; Stone v. U. S., 164 U. S. 380, 17 Sup. Ct. 71, 41 L. Ed. 477; Egan v. Hart, 165 U. S. 188, 7 Sup. Ct. 300, 41 L. Ed. 680. It is true that it has been held that an appellate court cannot, upon writ of error or appeal, refer to the opinion of the court below for the purpose of eking out, controlling, or modifying the scope of the findings of that court. Stone v. U. S., supra. But the opinion of the court is to be treated as part of the record, and may be examined in order to ascertain the questions presented. Egan v. Hart, supra. To the same effect are Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 684. 688, 15 Sup. Ct. 733, 39 L. Ed. 859; Baker v. Cummings, 181 U. S. 117, 21 Sup. Ct. 578, 45 L. Ed. 776, and the recent case of National Foundry & Pipe |