175, 195; Bank v. Codd, 18 N. Y. 240; Oneida Bank v. Ontario. Bank, 21 N. Y. 490, 496; Vanatta v. Bank, 9 Ohio St. 27; Express Co. v. Lucas, 36 Ind. 361. See, also, Pratt v. Short, 79 N. Y. 437, 445; Owen v. Davis, 1 Bailey, 315; Gilliam v. Brown, 43 Miss. 641, 644; W. U. Tel. Co. v. Union Pac. R. Co., 1 McCrary, 558, 562; 3 Fed. Rep. 423; Lewis v. Alexander, 51 Tex. 578; Brooks v. Martin, 2 Wall. 70, and cases cited; Planters' Bank v. Union Bank, 16 Wall. 483, and cases cited; Central Trust Co. v. Ohio Cent. R. Co., 23 Fed. Rep. 306.

"The leading case of Brooks v. Martin was a bill in equity for an account of profits between the parties under an executed partnership contract for the purchase and location of soldiers' land warrants, 'confessedly against public policy,' as well as in violation of the express provision of an act of congress; but the court held that the partner in whose hands the profits were could not refuse to account for or divide them on the ground of the illegal character of the original contract, saying (Miller, J., page 80): 'It is to have an account of these funds, and a division of these proceeds, that this bill is filed. Does it lie in the mouth of the partner who has, by fraudulent means, obtained possession and control of these funds to refuse to do equity to his partner, because of the wrong originally done or intended to the soldier? It is difficult to perceive how the statute, enacted for the benefit of the soldier, is to be rendered any more effective by leaving all this in the hands of Brooks, instead of requiring him to execute justice as between himself and his partner, or what rule of public morals will be weakened by compelling him to do so. The transactions which were illegal have become accomplished facts, and can not be effected by any action of the court in this case.' We are aware that the doctrine of this case has been criticised, and perhaps denied, by some of the state courts; but it was reaffirmed in Planters' Bank v. Union Bank, supra, and is not found to have been changed or modified in any subsequent decision. It requires no words to apply the doctrine of Brooks v. Martin to the present case: it applies itself. Nor do we find that its application involves any immorality, or that it is for bidden by any other reasons of public policy. Doubtless a court of equity is not positively bound to interfere in cases of this description, and may exercise its discretion; but it is peculiarly the office of equity to do justice, and justice manifestly

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requires that the defendant should not keep any part of the plaintiff's equitable share of the property it obtained from operating plaintiff's road, whether legally or illegally. Whatever the legislature may have intended to accomplish by the anti-monopoly act of 1867, there is no reason to suppose their intention was to reward the Concord railroad for its violation. And, however it may once have been, it is certainly difficult to see how public policy is subserved by allowing the addition of a private wrong to a public wrong, which necessarily results when, without any equivalent in return, one party to an executed illegal transaction excludes the other from participating in the proceeds; and we entirely fail to appreciate the morality which denies in such cases any rights to the party whose money or other property has been thus appropriated by his associate, contrary to express agreement and common honesty, and which in conscience the benefited party can not retain. The demurrer to the third plea is also sustained.

"Various causes of demurrer to the bill are assigned by the defendant, but at the argument only the one relating to discovery was insisted upon, or need be considered. The bill prays that the defendant be ordered to make a full, accurate and true discovery and disclosure of all and singular the matters and things herein set forth.' This is the usual prayer for a discovery, and no objection to its sufficiency is perceived. It is immaterial that the prayer concludes with a request that the 'defendant be required, but not under oath, to discover and state, fully and with particularity,' certain things specified; for, if the word answer,' which it is said was intended to be used, is substituted for 'discover,' the first objection of the defendant, that a prayer for a discovery not under oath can not be granted, is readily obviated.

* * *

"The second objection, that the policy of the law exempts the defendant and its officials from discovery, is based wholly upon the unfounded assumption that the plaintiff's action is against public policy, and has already been sufficiently considered.

"The third and last objection is that the fundamental law does not require the defendant to discover. The argument in its support is that the defendant is charged with the doing of that which was positively prohibited by an act of July 5, 1867; that, if the charge is sustained, each of the defendants is liable

* * *

* * *

to the penalty prescribed by that act; and that they are asked to make a discovery of facts which, in any event, would tend to fix their penal liability under that act, contrary to the constitutional provision that no subject shall be compelled to furnish evidence against himself.' This objection is unavailing. See Currier v. Railroad Corp., 48 N. H. 322. Of course the defendants are not obliged to discover any matters that may expose them to the penalty of the act of 1867; but they can not do so, however willing they may be, because prosecution under that act is barred by the statute of limitations. The transactions between the parties as to which discovery is sought ended July 1, 1887, and section 10, chapter 266, General Laws, provides that 'all prosecutions founded upon any penal statute, which are wholly or in part for the use of the prosecutor, shall be brought within one year, and all other suits and prosecutions thereon within two years after the commission of the offense, unless otherwise specially provided.' The demurrer is overruled. Case discharged.'

"SMITH, J., did not sit. The others concurred."

In this connection the following may be consulted:

It is not contrary to public policy nor to the interstate commerce act to divide territory between parallel railroad lines in which neither company will interfere with the other in constructing new lines. It prevents unprofitable construction wars and really aids in opening new territory (exhaustive opinion and citations). Ives v. Smith, 3 N. Y. Supp. 645.

A lease for nine hundred and ninetynine years on a portion of a road not interfering with lessor's capacity to perform its public duties will be specifically enforced (suit in this instance is brought by the lessee). Chicago, Rock Island & Pacific R. R. Co. v. Union Pacific Ry. Co., 47 Fed. Rep. 15; affirmed, 51 Fed. Rep. 309, S. C., 2 C. C. A. 174, with most exhaustive briefs and opinion, reviewing numerous cases.

A contract retiring a competing steamboat is valid; the route remains open to all others, no monopoly is created; competition is not always beneficial; the contract was necessary for the survival of the other company. Leslie v. Lorillard, 110 N. Y. 519; 18 N. E. Rep. 363. It is not contrary to 66 "Anti-trust" act of 1890 for railroads to form a traffic arrangement, so long as they do not illegally limit competition; it differs from a "pool" (which divides the earnings in a fixed proportion), for it simply establishes rates and leaves each road the incentive to accommodate the public, and by individual enterprise to earn as much as possible.

United States v. TransMissouri Freight Association (exhaustive opinion by Riner, D. J.), 53 Fed. Rep. 440.

This decision was affirmed by the circuit court of appeals. 58 Fed. Rep.

hausen, 8 Mo. App. 522; Carew v. chants' Salt Co., 18 Grant's Ch. 540; Rutherford, 106 Mass. 1.

True doctrine, past or present, is not to apply an inflexible rule, not even to contracts in general restraint, but to sustain them if reasonable. Mitchell v. Reynolds (1711),1 P. Wms. 181; 1 Smith's Lead. Cases (7th Am. ed.), pt. 2, p. 708 (baker restrained for three years from parish of St. Andrews, valid); Tallis v. Tallis, 1 El. & Bl. 391 (canvassing publisher held restrained from London, and one hundred and fifty miles from it. Dublin and Edinburgh, and fifty miles from either, and from any town where covenantee or his successors had an establishment or might have had one within six months preceding).

Mogul S. S. Co. v. McGregor, Gow. & Co., 21 Q. B. Div. 544, 23 Q. B. Div. 598, App. Cas. 1892, p. 25, House of Lords (combination of steamship owners between London and China sustained, though it, by allowing rebates to shippers, practically excluded the plaintiffs, who were competing carriers, from the trade).

Perkins v. Lyman, 9 Mass. 522 (merchant may bind himself not to be interested in any voyage to the northwest coast of America. See, also, Match Co. v. Roeber, 108 N. Y. 473; 13 N. E. Rep. 419; Navigation Co. v. Winsor, 20 Wall. 64; Manchester, etc. Co. v. Concord R. Co. (N. H.), 20 Atl. Rep. 383.

Mallon v. May, 11 Mees. & W. 652; Whittaker v. Howe, 3 Beav. 383; Kellogg v. Larkin, 3 Pin. 123; Beal v. Chase, 31 Mich. 490; Skrainka v. Scharringhausen, 8 Mo. App. 522; Wiggins F. Co. v. C. & A. R. Co., 73 Mo. 389; Gloucester v. R. C. Co., 154 Mass. 92; 27 N. E. Rep. 1005; Association v. Walsh, 2 Daly, 1; Hodge v. Sloan, 107 N. Y. 244; 17 N. E. Rep. 335; Brown v. Rounsavell, 78 Ill. 589; Jones v. Clifford's Ex'rs, 5 Fla. 510.

True it is in some cases expressions are found that railroad companies are quasi-public corporations, and any restrictions upon them are contrary to public policy. Gibbs v. Gas Co., 130 U.S. 396; 9 S. C. Rep. 553; West Va. T. Co. v. Ohio R. P. L. Co., 22 W. Va. 600; Chicago G. & C. Co. v. People's Gaslight & Coke Co., 121 Ill. 530; 13 N. E. Rep. 169; W. U. T. Co. v. Am. U. T. Co., 65 Ga. 160. But in all these cases the contracts in fact created monopolies and suppressed healthy competition, or disabled the party from performing its duty to the public. (Compare Union Pacific Ry. Co. v. C., R. I. & P. Ry. Co., 51 Fed. Rep. 309; 2 C. C. A. 174.) No such features are found in the contracts under review.

Shiras, D. J., dissents, citing Railway Co. v. Goodridge, 149 U. S. 680; 13 S. C. Rep. 970, which shows that the purpose of the "Interstate ComFor further authorities to the point merce Act" was to cut up by the that the test lies not in the existence roots the entire system of rebates; of the restriction but in the reason- that being its main purpose, it can ableness of the restriction, see Fowle not be held as changing the relation v. Park, 131 U. S. 88; 9 S. C. Rep. 658; of the people to the railroads so as to Gibbs v. Gas Co., 130 U. S. 396; 9 make said act the sole control over S. C. Rep. 553; Re Greene, 52 Fed. the latter; hence they are to be deemed Rep. 104; Horner v. Graves, 7 Bing. as also fully under the terms and con735; Hubbard v. Miller, 27 Mich. 15; trol of the "anti-trust" act. He conRousillon v. Rousillon, 14 Ch. Div. cludes his exhaustive and powerful 351; Cloth Co. v. Lorsont, L. R. 9 opinion thus: "In my judgment, Eq. 345; Wickens v. Evans, 3 Younge the right to insist upon free competi& J. 318; Ontario Salt Co. v. Mer- tion between railway companies en