
    8296
    STALLINGS v. SOUTHERN RY.
    Carrier — Freight—Penalty—Payment.—There can be no recovery of overcharge for freight and penalty therefor where the amount charged was paid voluntarily.
    Before Watts, J., Spartanburg, July, 1911.
    Reversed.
    Action by E. E. Stallings against Southern Railway in court of magistrate S. M. Wetmore. From Circuit order affirming magistrate judgment, defendant appeals.
    
      
      Mr. J. B. Atkinson, for appellant,
    cites: The penalty act of ipio is unconstitutional in that no reference is made to this provision in the title: 68 S. C. 149; 76 S. C. 332; 89 S. C. 94; 75 S. C. 425.
    
      Mr. C. C. Wyche, contra,
    cites: The penalty act is not invalid as alleged: 16 S. C. 47; 75 S. C. 427; 76 S. C. 332.
    August 15, 1912.
   The opinion of the Court was delivered by

Mr. Justice Woods.

The plaintiff recovered a judgment in a magistrate’s court for seventy-five cents overcharge of freight on washstands shipped from Savannah, Georgia, to Spartanburg, South Carolina, and fifty dollars, the penalty for such overcharge. On appeal the judgment was affirmed by the Circuit Court. The plaintiff admitted in his testimony that he paid the freight without objection. This admission was fatal for since the case was heard in the Circuit Court it has been decided in Hardaway v. Southern Ry. Co., 90 S. C. 475, that there can be no recovery for such overchange voluntarily paid. This conclusion renders unnecessary the other questions made by the appeal.

Reversed.

Mr. Justice Watts disqualified.  