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F. E. Whitefield and Glover & Shepley, for complainant.
B. C. Brown & J. O. Broadhead, for respondent.
McCrary, C. J., delivered the opinion of the court:

1. I will consider first the motion to dissolve the injunction. This is urged upon two grounds, to-wit: (1) That the railroad company is, by its charter, possessed of the exclusive privilege of conducting the express business over and upon its own road; and (2) that even if this were not so, the express company has no right to carry on its business upon

said road without the consent of the railroad company. Does the charter of the respondent railroad company confer upon it the exclusive right to carry on the express business


its own road? The answer to this question depends upon the construction of the sixth section of said charter, which provides as follows:

The said company shall have the exclusive right of transportation or conveyance of persons, goods, merchandise, or produce over said railroad by them to be constructed."

This language must be construed in the light of the history of the construction of railroads in this country. When first introduced they were regarded only as improved highways, subject to be used by the general public. It was thought that any person ought to have the right to place his vehicle upon the track of a railroad, and to transport his own freight upon it, paying toll for the use of the track, and it was considered necessary, in order to limit the use of the road and to give a particular person or company the exclusive right to operate it, that such exclusive right should be expressly reserved by law. It was for this purpose that clauses substantially like the one above quoted were inserted in very many of the earlier, and not a few of the later, railroad charters. Experience very soon demonstrated that it was not practicable to apply to the system of railways all the principles that obtained in defining and regulating the rights of the public with respect to the common highway. Certain innovations were necessary; certain exclusive privileges were inevitable in order to secure safety and celerity in the transportation of persons and property by the use of cars and steam-engines. One of the first of these to be generally recognized was the necessity that the operation of every railroad should be under the control of a single head. It was seen that the safety, not only of property, but of life as well, depended upon vesting in the owner of the track, or the company operating the road, the exclusive right to say what vehicles should be placed upon the track, or, in other words, the exclusive right of trans


portation and conveyance of persons and property over their tracks. An examination of the railroad charters adopted by the various legislatures of the Union will show that this provision has been inserted in nearly all of them in one form or another. It was never intended to apply to or determine such a question as that now under consideration. It gives the railroad company the exclusive right to place cars on the track, and operate them for the transportation of persons, goods, wares, and merchandise. It gives no other or greater exclusive right. It follows that the question whether the railroad company has the exclusive right to carry on the express business upon its line, and the right to eject the complainant, must be determined independently of this provision. This brings us to the question whether the express company may, as a matter of right, carry on its business upon the respondent's road. Substantially, this question has recently been considered by several of the courts of the United States, and it has been uniformly held that it is the duty of the courts to maintain such right by granting a preliminary injunction, at least, until there can be a final hearing upon the merits. Such has been the ruling of Mr. Justice Harlan, on the circuit; of Judge Baxter, of the sixth circuit; and of District Judges Key, Gresham, Treat, Hallett, and Caldwell. I am of the opinion these decisions are sound in principle, as well as of great weight as authority. They will be followed, unless the supreme court shall otherwise decide. The guiding princi. ples running through them all, and which should govern in determining the respective rights of the parties, are these :

(1) A railroad company is a quasi public corporation, and bound by the law regulating the powers and duties of common carriers of persons and property.

(2) It is the duty of such a company, as a public servant, to receive and carry goods for all persons alike, without injurious discrimination as to rates or terms. - (3) The business of expressage has grown into a public necessity. It is the means whereby articles of great value may be carried over long distances with certainty, safety, and celerity, being placed in the hands of a special messenger, who is to have the charge and care of them en route. The railroad companies must, in common with the public, recognize the necessity for this mode of transportation, and must carry express packages, and the messenger in charge of them, for all express companies that apply, on the same terms, unless excused by the fact that so many apply that is impossible to accommodate all -a state of things not likely to occur. If it be said that tbis is giving to the express companies privileges not afforded to other shippers, the answer is that the nature of the express business makes special facilities for its transaction necessary, and the case is, therefore, properly exceptional.

(4) It is not necessary now to determine whether the respondent railroad

company may, under its charter, engage in the express business, and undertake to carry and deliver express packages beyond its line. It is enough for the present to say that if it possesses the right to engage in this business at all, it must do so upon terms of perfect equality with all other express companies, and the court will see that it does not take to itself any privileges in this regard that it does not extend to the complainant.

The motion to disolve the injunction is overruled.

2. What has been said virtually disposes of the questions raised by the supplemental bill. The railroad company is bound to carry

for the express company for a reasonable compensation, and must not discriminate against it. A court of chancery has power to decree a compliance with this wholesome regulation. This court cannot for a moment sanction the proposition that the railroad company may, by extortion or unjust discrimination, exclude the express company from the right to conduct its business upon their railroad. I am not prepared now to fix the maximum rates to be charged for the transportation of express matter, but I have no doubt of the power of the court, after investigation, to do so. An order for this purpose should not, as a rule, be made until after a reference to a master, and a report by him after hearing. For the present, the injunction herein before allowed will be modified so as to enjoin and restrain the respondent from charging the complainant for the transportation of express matter, including closed packages, more than a fair and reasonable rate; such charges in no case to exceed the rate charged upon similar express matter to itself, or to any other express company, or for similar express matter received from, or delivered to, the Iron Mountain, etc., Railroad Company Express, or the Pacific Express Company.

Ordered accordingly.

Davis and others v. STEWART, Assignee.

(Circuit Court, D. Iowa. September, 1881.)


Where a vendee is insolvent at the time a purchase is made, and does not expect to be able to pay for the goods purchased, the vendor is entitled to possession as against such a vendee's voluntary assignee.

An action of replevin is brought to recover the possession of goods alleged to have been fraudulently purchased by Harter & Claus, defendant's assignors. The plaintiffs rescind the sale, and follow the goods, stating in their petition “that when Harter & Claus purchased

the bill of goods they were insolvent, and did not expect to pay for the same." The case was tried with a jury, and a verdict rendered for the plaintiffs. Motion is made for a new trial.

Barcroft, Gatch & McCaughan, for plaintiffs.
Parsons & Runnells, for defendant.

Nelson, D.J. The rule stated by Hilliard on Sales meets with my approval, to-wit: “Where the purchaser is insolvent, and has no reasonable expectations or intention of paying for the goods, he gains no title against the vendor.” It is not necessary to allege or show false pretence or other direct artifice. When no questions are asked, no false pretences, no artifice resorted to, silence is not fraud; but concealment of insolvency, with no reasonable expectation of paying, renders a sale fraudulent. See Thompson y. Rose, 16 Conn. 71, 81; Johnson v. Monell, 2 Keyes, 655; Powell v. Bradlee, 9 Gill. & J. 220, 248, 278; Talcott v. Henderson, 31 Ohio St. 162, 52, note, and p. 301.

Donaldson v. Farewell, 93 U. S. 631, is not in conflict with the view expressed in this case. The facts there fully sustained the opinion announced by this court. The point made, that the defendant was an officer of the state court, and the circuit court of the United States has no jurisdiction, is not tenable.

The assignment was the voluntary act of Harter & Claus, and the defendant was their appointee. The property is in the defendant's custody as trustee for the creditors, and the statutory provisions relative to the exercise of the trust are such as a court of chancery would apply.

The evidence was sufficient to justify the verdict, which the court was authorized to put in proper form.

Motion denied, and it is so ordered. Judgment will be entered by the clerk, but without costs.


(Circuit Court, D. Minnesota. September, 1881.)


JUNE 30, 1879.

One who aids and abets a postmaster in committing the offence provided against by the provisions of the act of June 30, 1879, which declares that a postmaster makign a false return shall be deemed guilty of a misdemeanor, etc., is guilty of the same offence, and liable to the same punishment, as his principal


Wm. W. Billson, U. S. Atty., for the United States.
C. D. O'Brien, for defendant Bertram.

Nelson, D.J. The prisoners, Snyder and Bertram, were arrested on complaint, charging“That Snyder and Bertram, the said Snyder being postmaster, did unlawfully and knowingly make to the auditor of the United States, for the postoffice, in said Snyder's name, a false return,

for the purpose of fraudulently increasing his compensation as such postmaster, under the provisions of the act of June 30, 1879.”

The act referred to declares “that the postmaster making a false return shall be deemed guilty of a misdemeanor, and on conviction, punished,” etc.

An application is made for the discharge of Bertram, who, it is admitted, is not a postmaster. He was arrested as an aider of the postmaster in the commission of the offence.

The defendant's counsel insist that no person but the postmaster can commit the act made criminal by the statute, and be punished under it. The general doctrine that in misdemeanors all connected with the offence are principals, is conceded; but it is urged that the policy of congress in respect to the postal system, as shown by the numerons laws creating offences, would limit this one and the punishment affixed in this statute to the postmaster. I cannot assent to this view of the law. The act of the postmaster being declared a misdemeanor, it was evidently the intention of congress to make it so for all purposes.

An employe of the postmaster, or a person not connected with the office, has no right to procure or aid in the commission of this offence, and it is not reasonable to suppose congress intended to change the general principle of the law. If it had been enacted that the postmaster who made a false return should be guilty of a felony, the new felony created by the statute has all the incidents it would have at common law, and an accessory before the fact could be punished,

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