Dale v. Redfield. nearly all of these suits, (including these two,) on the express understanding and agreement, that those of said suits in which both sides could agree as to the amount of duties recoverable on charges and commissions should be adjusted and paid; that those in which both sides agreed that nothing was recoverable should be discontinued or otherwise disposed of; that those in which both sides agreed that nothing was recoverable as to charges and commissions should be discontinued as to that issue; and that those in which both sides could not agree, or in which there was any other issue than charges and commissions, should be litigated in Court. The Government, to carry out its part of such agreement, and to dispose of the cases, employed, at great expense, attorneys, experts, adjusters, and other assistants. Of the suits in which the custom-house papers were so examined, some 99 suits were, on such understanding and agreement, adjusted and put in judgment, or were, on the consent of Mr. Jordan, as attorney for the plaintiff, and of the attorney for the defendant, discontinued for payment, and over $125,000 have been paid in full settlement thereof. Some 193 other suits, in which Mr. Jordan, as attorney for the plaintiff, after such examination, and on his own judgment, concluded that the plaintiff was not entitled to recover anything, were, on his consent as such attorney, and that of the attorney for the defendant, wholly discontinued, without costs, the attorney for the defendant having first obtained authority from the Secretary of the Treasury of the United States to waive costs. In some 186 other suits, (including these two,) in which Mr. Jordan, as attorney for the plaintiff, after such examination, also came to the same conclusion, motions were made by the attorney for the defendant for judgment, and judgment was rendered for the defendant, by an order entered March 1st, 1881, costs having been waived by the attorney for the defendant, upon the authority aforesaid. Some 34 other suits, in which Mr. Jordan concluded that the plaintiffs were not entitled to recover anything as to charges and commissions, were discontinued as to charges and commissions, Dale v. Redfield. and continued as to other issues involved. Some few suits, in which both parties could not agree, have been litigated in Court. Heman J. Redfield was collector of customs at New York, from November, 1853, to July 1st, 1857. The suit of Dale v. Redfield was commenced in the Supreme Court of New York, April 24th, 1863, against Mr. Redfield. About May 1st, 1863, he appeared by Mr. E. Delafield Smith, then attorney for the United States, and demanded a bill of particulars of the plaintiff's claim. The suit was removed into this Court July 20th, 1863. Issue was joined on May 20th, 1866. On the 19th of April, 1872, on the written consent of Mr. Smith, as attorney for the plaintiffs, and of the attorney for the several defendants, an order was entered, entitled in that suit and 134 other suits, referring the suits to Edwards Pierrepont, Esq., as sole referee. The order states, that the suits are "now pending in this Court, to recover duties alleged to have been illegally exacted upon charges and commissions; " that the order is made on motion of Mr. Smith, as counsel for the plaintiffs; that Mr. Pierrepont is appointed referee to take proofs of, and ascertain, the claim of the plaintiff's "for excess of duties upon such charges and commissions which may be found to have been illegally exacted from plaintiffs;" and that, on the coming in of the report of the referee, and the decision on exceptions which might be taken to it, either party might "move for judgment or verdict." On December 19th, 1876, an order was made, in the same language, referring Dale v. Redfield and other cases to John I. Davenport, in place of Mr. Pierrepont. Augustus Schell was collector of customs at New York from July 1st, 1857, to April 8th, 1861. The suit of Strang v. Schell was commenced in the Supreme Court of New York, June 9th, 1865, against Mr. Schell. It was removed into this Court November 18th, 1865. The declaration, which was put in in this Court, January 25th, 1866, contained only the common money counts, and claimed $1,980. Issue was joined by a plea of non-assumpsit, on February 10th, 1866. On the Dale v. Redfield. 13th of March, 1875, on the consent of Mr. Smith, as attorney for the plaintiffs, and of the attorney for the defendant, the suit was, by an order of this Court, referred to John I. Davenport, the order being in the same words as the above named orders of reference in Dale v. Redfield. In February, 1881, the defendants in 146 suits against three collectors, (including these two suits,) moved for an order requiring the plaintiffs to serve bills of particulars of the items of their demands, or, if none could be served, then for an order rendering judgment for the defendant. Mr. Jordan was attorney for the plaintiffs in all of the suits, and the motion was made on notice to him, on an affidavit stating that, more than 15 years previously, the defendants had appeared and served on the attorney for the plaintiff's a demand for a bill of particulars, but none had been served in any of the suits; and that each of the suits was brought to recover an excess of duty on merchandise imported by the plaintiffs. The motion was made and granted, and, on the 1st of March, 1881, an order was entered, the form of which was assented to in writing by Mr. Jordan, as plaintiffs' attorney, entitled in the 146 suits, (including these two,) which order recites the motion, and says, that, "it appearing that no bill of particulars can be served in any of said actions," it is, after hearing the attorneys for both parties, "ordered, that judgment be, and the same is hereby, rendered, in each of said actions, in favor of the defendant or defendants therein, and against the plaintiff or plaintiff's therein." In the custom-house at New York, it was the practice of the collectors, (including Redfield and Schell,) from about January, 1851, to June, 1883, to exact three fees of 20 cents each, as follows: When an invoice and an entry were presented, the collector put a stamp on the invoice, showing the date of its presentation, and charged 20 cents therefor. He also charged 20 cents for administering the owner's or consignee's oath on the entry. He also charged 20 cents for an order from the collector to the storekeeper in the public store, to deliver to the Dale v. Redfield. importer examined and appraised packages. Down to April 22d, 1881, there had not been any recovery by any importer for the return of such fees, as illegally paid. In numerous suits against collectors who had exacted such fees, brought to trial, or settled, or otherwise disposed of, such fees were not considered recoverable, or the attempt to recover them was abandoned. No attempt was ever made to recover such fees until about April 22d, 1881, and then, on the trial of Benkard v. Schell, in which Mr. A. W. Griswold was counsel for the plaintiffs, there was a recovery by them for such fees. A like recovery was had by Mr. Griswold, in Recknagel v. Schell, in November, 1881, and by Mr. George Bliss, in May, 1882, in S. Cochran & Co. v. Schell. The Supreme Court of the United States, at October Term, 1882, affirmed the judgment in the last case, (Schell v. Barber, 107 U. S., 617,) holding that the exaction of the three fees was illegal; and, in June, 1883, their exaction was discontinued by an order from the Treasury Department. Mr. Schell having died March 28th, 1884, and executors of his estate having been duly appointed April 4th, 1884, the plaintiffs in Strang v. Schell, by Mr. Lewis Sanders, as their attorney, caused to be issued from this Court, on the 10th of July, 1884, a writ directed to the marshal. commanding him to make known to the executors of Schell that they should show cause on July 29th, 1884, why the several appearances of Mr. Cromwell and Mr. Jordan, as attorneys for the plaintiffs, and all proceedings thereunder, should not be expunged from the record, as null and void, including the said order of March 1st, 1881, and why the suit should not be revived against said executors. This writ was issued on an affidavit made by one of the plaintiffs, setting forth that the suit was brought to recover duties, charges, and fees; that, after the death of Mr. Smith, the plaintiffs did not appoint, or receive notice to appoint, another attorney; that the order of March 1st, 1881, was 'entered without the knowledge, consent, or authority of the plaintiffs, and after the death of Mr. Smith was known to the defendants' attorney; and that the plaint Dale v. Redfield. iffs were not informed until after January 1st, 1884, that the suit had been attempted to be discontinued, or that any attorney had assumed to represent them since Mr. Smith's death. The executors of Schell now move to quash said writ in Strang v. Schell, and the plaintiffs in Dale v. Redfield and in Strang v. Schell, move to set aside the several orders substituting Mr. Cromwell and Mr. Jordan as plaintiffs' attorneys, and the order of March 1st, 1881, and that the suits be reinstated, and Mr. Sanders be substituted as plaintiffs' attorney, in place of Mr. Smith. The plaintiffs' motion in Dale v. Redfield is made on an affidavit of one of the plaintiffs therein, which sets forth that the suit was brought to recover illegal fees, exacted from them by Mr. Redfield, for oaths to entries, stamps, and orders; that, besides the claim for fees, they had a claim for duties on charges and commissions, exacted by Mr. Redfield, but it was paid in 1865, independently of this suit and of the Douglases, and there is no claim for duties on charges and commissions herein; that, until the latter part of 1883, neither of the plaintiffs was informed of the death of Alfred Douglas, Jr., or of Mr. Smith, or of the substitution of Mr. Cromwell or Mr. Jordan, as plaintiffs' attorneys, or of the judgment of March 1st, 1881; that they immediately took steps to set aside the orders of substitution and the judgment; that they never authorized the representatives of Alfred Douglas, Jr., to appoint an attorney for them; that, after the trial of Hutton v. Schell, in April, 1881, Mr. Jordan took no steps to have the judgment in Dale v. Redfield set aside; that the plaintiffs in that suit never had notice of an order to furnish a bill of particulars; that the claim to recover fees therein was never abandoned, and the plaintiffs never authorized it to be abandoned; and that they could have furnished a bill of particulars of their claim for fees at any time, if it had been demanded of them. The plaintiffs' motion in Strang v. Schell is made on an affidavit of one of the plaintiffs therein to the same effect as |