1. The Central Line of Boats, as a common carrier, had contracted with Young, the consignee and owner of certain goods shipped from New York to Apalachicola, to receive and carry the goods from the last mentioned place to Columbus, Georgia, leaving certain portions of them at Eufaula and Wright’s landing, en route. The bill of lading was assigned to the carrier with a special order for the delivery of the goods. The declaration charges that plaintiffs in error, knowing this, wrongfully and fraudulently obtained the goods from the ves*446sel which liad brought them to Apalachicola, and thereby deprived the defendant in error of the freight which it would have earned under the contract. Is the former liable to the latter in an action for damages? Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action : Revised Code, sec. 2957. In 2 Chitty’s Pleadings, 691, the form of a declaration is given in a case in which plaintiff had a verdict, where the defendant, who was a wharfinger, falsely represented to the person, '(master of a ship,) who was in possession of the goods directed to plaintiff’s wharf, that he was authorized to receive them, etc., whereby plaintiff was deprived of the profits of storage, wharfage, etc. Also one against a defendant for representing that plaintiff’s Aragon set out from his inn, by means of which he obtained possession of and sent by another Avagon, two parcels, Avhich plaintiff had contracted with the OAvner thereof to carry for hire, to a certain place. When the plaintiff beloiv contracted with the owner of the hay for its transportation, and received an assignment of the bill of lading, it had a right to demand and receive possession of the hay, and to carry it to its destination, and to be paid for the same. When the defendants got it they deprived him of this right, and if they Avrongfully acted, thei'e were both injuria et damnum. It Avas a tort, an invasion of the legal right of another: Code, section 2951.
2. When the OAA'ner refused to receive the hay from plaintiffs in error, and the Central Line of Boats demanded and received it from them, and delivered the .same to the OAvner Avho accepted it, the owner Avas bound to pay the carrier thus delivering, the freight on the same, and such carrier must assert his right therefor against him. This would be the general rule.
3. But if the Central line, in order to obtain the possession, AAras compelled to pay to plaintiffs in error the amount for freight which the owner Aíras to pay, then the Central line Avas entitled to recover back such amount from them. It Avould not be like the case of a voluntary payment. Money *447paid to obtain possession of property which the party making the illegal demand has under his control, can be recovered back: 4 Metcalf, 189; 7 B. & C., 73; 2 Ibid., 729; 7 Greer, 134; 9 John., 201: See Elliott vs. Swartwout, 10 Peters, 137; 4 Term Reports, 485; 1 Taunt., 358. Nearly all these cases recognize the distinction between a voluntary payment and payment made under compulsion.
4. It would seem to be a pretty clear proposition, that if the hay, when it was received by the Central line from the other carriers, was damaged so that the owner could recoup therefor against its claim for freight, then the Central line would be entitled to recover from them for such damages. We do not say whether the damage to the hay was recoverable against the owner of the vessel that brought it to Apalachicola,' or that any carrier was responsible for it. But if the plaintiffs in error received it in a damaged condition without a survey, and paid full freight from New York, when a deduction should have been made for the damage, then they were not entitled to demand for what they had so illegally paid. And if the Central line was compelled to pay the whole amount of charges in order to get possession of the hay, without the privilege of examining into its condition, and there was such damage that the owner had a right to set it up against the Central line’s claim for freight, it had a right to go back on the Barnett line for indemnity.
5. Would the Central Line of Boats, by reason of its special property in the hay, arising out of the assignment of the bill of lading, and its lien on the hay for its claim for freight, have a right of action against plaintiffs in error ? Qucre.
6. We have said nothing thus far as to the coal. There is no evidence in the record that the contract with the Central line covered the coal, nor is there any transfer of any bill of lading therefor, or any proof of any order for it given to the Central line. The owner of the coal accepted it from the defendants below, and paid them the freight on it. There was likewise no proof of what amount of damage was done to the hay, so that a jury could ascertain, with any reasonable cer*448tainty, what to find therefor. Nor can we say, from the evidence, that the amount paid for freight from New York to Apalachicola should be included in the recovery. It is almost impossible to tell what items the jury did find for in their verdict. We are satisfied it is too large, and as we do not see that, as the evidence appears in the record, the verdict should have been for more than the freight on the hay from. Apalachicola to Columbus, which, at fifty cents per bale, would be $318 00, it is directed that if the defendant in error will write off all except that amount, the judgment shall stand affirmed for that sum, otherwise a new trial is granted.
