other with a letter to be used in evidence was entitled to recover on a promise to give part of the proceeds, but the question of the illegality of such an agreement does not appear to have been raised.

V. Agreements for Clemency in Criminal Prosecutions. An agreement by a prosecuting attorney for immunity or clemency to several defendants, on different indictments, if one of them would become a witness for the prosecution upon other indictments, is a fraud upon the court: Wright v. Rindskopf, 43 Wis. 344. The court there said "Any agreement of a public prosecutor with an accomplice becoming a witness, for any advantage to the accomplice beyond his immunity upon the indictment upon which he testifies, or for immunity or clemency to other persons indicted with him, on the same or any other indictment, would not only be beyond the official authority of a public prosecutor, but would be an obstruction of the administration of public justice which no court could sanction or countenance. When indictments are several, for several offenses, we know of no practice, of no case in the books, to sanction or countenance any suggestion of the public prosecutor for immunity or elemency to the defendant on one indictment, on condition of his giv ing evidence for the prosecution on others; far less for immunity or elemency to several defendants, in several indictments, upon one of them becoming a witness for the prosecution upon still other indictments. We are not prepared absolutely to say that there might not be extraordinary circumstances in which judicial sanction might be given to an understanding with the defendant in several indictments, becoming a witness for the prosecution on one, with promise of pardon on all, in order to secure conviction for great crime, by suffering less crime to go unpunished.

"We are strongly inclined to think, however, that any such agreement should be regarded as working corruption in the administration of public justice beyond justification by any exigency. But if any sanction could be given to such an understanding, it could be given only by the court in which the indictments are pending, upon fullest and most explicit knowledge of the understanding and of the circumstances leading to it. Any such agreement of a public prosecutor with a person under indictment, unsanctioned by the court, would be a fraud upon the court and an obstruction of public justice."

But where one is jointly indicted with others, an agreement by him to testify fully, in return for which the facts will be presented to the court, and a nolle prosequi as against him recommended, is not contrary to public policy; for he simply consents to make a disclosure of the truth, and has no inducement to produce any special result: Nickelson v. Wilson, 60 N. Y. 362, reversing 1 Hun, 615.

VI. Expert Testimony.

Agreements to pay witnesses on the event that the suit terminate in favor of the promissor are not only void as concerning ordinary

witnesses, but also as concerning experts. In Thomas v. Caulkett, 57 Mich. 392, 58 Am. Rep. 369, 24 N. W. 154, a doctor was employed by a person injured in a railroad accident to explain his injuries to the management of the company, his fee to depend upon the amount recovered. This the court held illegal saying: "However honest a man's actual intentions may be, and however truthful he may be, there is a direct temptation to misrepresent, and a direct danger that the misrepresentation will operate injuriously to the parties dealt with."

So a contract to pay a patent expert a large sum of money if his testimony produced a certain result, is an agreement tending to pervert the course of justice: Pollak v. Gregory, 22 N. Y. Super. Ct. (9 Bosw.) 116.

In Yeatman v. Dempsey, 7 Com. B., N. S., 628, a medical man was mulcted in damages for breaking a contract to appear at a trial and testify, but the question of illegality did not enter into the matter at all.

VII. Restoring Competency of Witnesses for Purposes of Suit. Agreements to restore the competency of a witness otherwise incompetent are a fraud both upon the adverse party and the court. So where, for the purpose of rendering a witness competent, a release is given him, with the agreement that after he had been examined on the trial, it should be delivered up and canceled, neither party can come into court seeking relief against the other because he has not carried out his agreement: Crosier v. Acer, 7 Paige, 137. A guaranty for the payment of a note, although substituted for another guaranty, in order that the first might be called as a witness on a suit on the original debt, is not void for maintenance: Small v. Mott, 22 Wend. 403, affirming Mott v. Small, 20 Wend. 121. See, also, Dorwin v. Smith, 35 Vt. 69.

VIII. Where Indirectly Used as a Witness.

In Grove v. McCalla, 21 Pa. St. 44, one owed another a debt, and promised to pay him when he received money in a certain suit of his pending against a third person, if he would wait till then. The fact that the creditor was afterward examined in that suit as a witness for the debtor does not invalidate the promise to pay. And in Perry v. Dicken, 105 Pa. St. 83, 51 Am. Rep. 181, a contract was declared valid between a client and his attorney acting on a contingent fee, although it was then understood that the attorney would be a necessary witness for his client at the trial.

IX. Promise to Pay More than the Legal Fee.

Another class of contracts is that in which a witness is offered more than the legal fee for attending court and testifying. Ordinarily, they cannot recover on such agreements. "Were it otherwise, and witnesses might be allowed to make terms for testifying, there would be room for oppressive conduct, and for corruption. Witnesses, know

ing that their testimony was indispensable, would, under one pretense or another, make terms for their testimony, and such as might te induced to represent their testimony as important, would be tempted to barter their oaths at the expense of truth and justice. Now, a promise to pay more than the statute fees for just this statute service, without further service or loss by the witness, may be said to be without consideration. It cannot be important, in our view, whether the promise be made after the service of the subpoena, contemporaneously with it, or before, provided the promise refers to this duty and is founded on no other consideration.

"There may be a further consideration, in which case an executory promise for extra compensation will be upheld; as if the witness was about going abroad at the time he may be wanted to attend court, and agrees that he will remain and give up his journey and is summoned; or living at a distance from the place of the court, more than twenty miles, so that his deposition could be taken, agrees that he will attend in person. In these and the like cases the promise is one for indemnity, and is founded on a new and meritorious consideration, and is good. . . . .

"If a witness agrees with a party, that he will attend and testify without being summoned, and he is not summoned and so not brought under the order or censure of the court, we suppose any reasonable promise for compensation is good and may be enforced; for the proceeding or service is not under nor in pursuance of the statute": Dodge v. Stiles, 26 Conn. 463. See, also, Willis v. Peckham, Brod. & B. 15.

1

BRUNSWICK AND WESTERN R. R. CO. v. PONDER. [117 Ga. 63, 43 S. E. 430.]

CARRIER-Duty to Protect Passengers.-A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence or injury by third persons. (p. 153.)

CARRIER-Duty to Protect Passenger from Arrest.-When a passenger on a train is being arrested by officers of the law, under color of authority, the railroad company is under no duty to inquire into the legality of the arrest. (p. 154.)

CARRIER-Liability for Arrest of Passenger. When the arrest of a passenger is apparently regular, and there is nothing to put the railroad company on notice that the arrest is illegal, it is not liable for failing to interfere with the officers and prevent the arrest, or for stopping the train to allow the removal of the prisoner. (p. 155.)

CARRIER-Liability for Excessive Force in Arrest of Passenger. If the arrest of a passenger on a train is made under such circumstances that the conductor may assume that it is lawful, the railroad company is not liable for excessive force used by the officers. (p. 155.)

W. E. Kay, S. W. Hitch and John C. McDonald, for the plaintiff in error.

John T. Myers, for the defendant in error.

63 SIMMONS, C. J. Sometime in June, 1901, Ponder boarded a passenger train of the Brunswick and Western Railroad Company at Fairfax, Georgia. He paid his fare to Waycross. When the train stopped at Waresboro, a station intermediate between Fairfax and Waycross, three men boarded the train, assaulted Ponder, and removed him from the train. After set

tling for a small sum his claims against the individuals who assaulted him, Ponder brought suit against the railroad company for its failure to protect him. The jury returned a verdict for the plaintiff for five hundred dollars. The company 6 moved for a new trial, the judge overruled the motion, and the company excepted. The evidence shows that when the train stopped at Waresboro the conductor stepped off to assist the passengers who were getting on or off. While he was so engaged, three men boarded the train to arrest Ponder, entering the train at a point other than that at which the conductor was standing. One of these men was marshal of the town of Waresboro, another was the deputy marshal, and the third was specially deputized by the marshal to assist in making the arrest. They had no warrant, and seem to have arrested Ponder for having failed to pay one of them a debt. They ordered him to get off of the train with them, and, upon his refusal, began to strike and beat him. At this juncture the conductor came in and discovered, for the first time, that the officers were on the train making an arrest. He took hold of one of them and remonstrated with them all, suggesting that they go on to Waycross, the train having already started. This they refused to do, ordering the conductor to stop the train. The conductor, when he came in, had heard Ponder tell the officers that he had paid them all he owed them; but the conductor made no investigation as to the charge against Ponder, and did not try to ascertain whether the officers had a warrant. He knew that the officers were such, and they had on former occasions arrested persons on his train and taken them off. Upon their demand he had the train stopped before it had left the corporate limits of the town. The officers and Ponder then left the train. The motion for new trial complains that the verdict is contrary to the evidence and without evidence to support it, and that the court erred in certain charges and refusals to charge. Our idea of the law of the case, as given below covers these assignments of error, and we will not deal with them separately.

1. A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence or injury by third persons. If a third person boards the train and assaults a passenger, it is the duty of the railroad company to use extraordinary care to protect the passenger, and in this state the conductor of a train carrying a passenger is invested with all the powers of a police officer: