<JoRdemnationfor a necessary purpose we do not know, nor is it material to inquire. . It' issufficientfu say that the legislature was authorized to pass such an act, and the courts 'must enforce it. The facts stated in the petition seem to bring the case squarely within the statute; indeed, the act seems to have been passed with referenc'e to the conditions which now exist at Cairo. I doubt if similar conditions exist elsewhere on the border of Illinois. As already stated! the road of the petitioner terminates at Cairo. It aoes not need the land in controversy except for the purpose of construeting an incline, and a landing for transfer boats. It is not contendea that additional terminal facilities are needed for any other purpose, .I find no difficulty in agreeing with the counsel for the petitioner on all othe)' points discussed in the argument. Under the Illinois statutes, the petitioner and the Mobile & Ohio Company ,are authorized to consolidate; and, but for the act of 1877, I should feel inclined to hold that the petitioner might condemn the land in controversy, and own transfer ferry.boats, solely for the ptirpose of transferring cars from one side of the river to the other. In Railroad Co. v. Railroad CO' l 13 N. E. Rep. the supreme court of Illinois held that the right of way of a railroad company in Illinois could be condemned and appropriated by another railroad company, under the stat-. utes of that Rtate, only to tl;1eextellt of crossing or intersecting. The laud in controversy is not part of the right of way of the Cairo, Vincennes & Chi(',ugo Railway Company. Judge AI,LEN is not yet pr,epare4, to hold that the act of 1877 is an obstacle to the prosecution of .thisproceeding, but he has such doubts upon the questioD that he has united with me in allowing a rehearing. ALLEN, J. I am not satisfied that the water-craft act of 1877 presents an insuperable objection to the conderimation of the strip of land sought to be condemned under the .einin4:mt domain rule. The St. Louis & Cairo Railroad, having established a business connection with the Mobile & Ohio Railroad, seems entitled to facilities to transfer cars over the Ohio river. I have sufficient doubt on this question, however, to induce me, in view of its great importance, to concur in sustaining the motion for a rehearing, in order that the question may receive further and more mature consideration.
BROWN". CARBONATE BANK OF LEADVILLE.
(Circuit Court, D. ,Colorado. May S,1888.)
BANES-AND BANKING-NATIONAL BANKS-!NSOLVE1Wy-FRAUDULENT TRANSJ'ERS-PLlllADING-MrsJOINDER OJ' CAUSES.
The complaint in an action to recover the value of certain notes alleged to have been the property of a bank of which plaintiff was receiver, and to been wrongfully converted by defendant, contained two counts. The first charged that an officer of plaintiff's bank surreptitiously took these notes from its vaults, and delivered them to defendant, which took with
BROWN II. CARBONATE BANK OF LEADVILLE.
etc.; the second charged that plaintiff's bank, in contemplation of insolvency, and with a view to prevent the application of these assets in the way prescribed by law, transferred them to defendant. Held, that a demurrer on the ground of a misjoinder of canses of action would not lie, the two counts in reality stating but one cause of action.
The first count states clearly and distinctly what would be tantamount to the common·law action of trover, and does not attempt to unite that form of action with one uDder Rev. 8t. U. S. § 5242, declaring void all preferences made by a national bank after, or in contemplation of. insolvency. 8. SAME-CONCLUSIONS OF LAw. The allegation in the second count of the complaint, that plaintiff's bank. having refused to pay its circulating notes, and suspended payment to its creditors, and, being in default, and in contemplation of insolvency, aSlligI!ed and transferred certain notes to defendant, with a view to prevent the application of its assets among its creditors in the manner provided by law,is not open to objection as stating merely conclusions of law. .
At Law. On demurrer to complaint. A. W. Rucker, for plaintiff. B. D·. Walling, for defendant.
BREWER, J. In the case of J. Sam Brown, Receiver, v. The Oarbmate, Bank of LeadtliUe, there is a demurrer to the complaint. The gist of the complaint is the recovery of the value of certain notes alleged to have been the property of the First National Bank of Leadville, of which the plaintiff is receiver, and to have been wrongfully obtained and converted by the <iefendant. The complaint is in two counts. The .first in substance that one of the officers of the First National Banksurnrptitiously took these notes from the vaults of that bank, and delivered them to the defendant, which took with knowledge of the circumstances; the second alleges that the First National Bank, in contemplation of insolvency, and with a view to prevent the application of these assets il;1 the way prescribed by law, transferred them to the defendant. The demurrer raises-First, the question of a misjoinder of canses of action. Obviously this is not well taken, for a demurrer lies on the ground of misjoinder only when there are two causes of action united in one complaint, which, by reason of a dissimilarity in their nature, ought not to be together, as, for instance, one cause of action in ejectment with one for libeL . Under the statutes, no such joinder can be had. Here, even if there were twodifferent transactions,-two separate causes of action fo.r the recovery of distiuct and independent assets,-each cause of action would rest upon an implied promise to pay, would be similar, ure, and the two could be joined· in one complaint. As a matter of fact, there is but one cause of action stated in two counts. The second ground of the demurrer running to the first count is that there is all attempt in it to' unite a cause of action-the old common-law action of trover-with one under the statute. Section 5242, Rev. St. . I th.ink this is a mistake. It states clearly and distinctly what would btl tanf:amount to an old common-law of trover,-the wrongful receipt and conversion of these notes by the defendant. Other matters arestate<i which may not be necessary to .a full presentation of that cause<of
-statements of: facts surrounding arid' accompanying the transaction, which may be unnecessary,-but no Qbjection of that kind can be reached by demurrer. The objection. is to the second connt, and it is claimed that that states merely conclusions onaw. It charges briefly that the First National Bank of Lead,vUle, having refused to pay its circulating notes, and suspended payment to its creditQrs; and being in default, and in contemplation of insolveney, assigned' and transferred to the defendant, with a view to prevent the application of its assets among its sev,eral creditors in the mannerin such cases made and provided by law, certain notes then' deHcribed. . That is enough. It states a cause of action clearly under the statute. It is nO,t necessary to state the evidence, -describe what circumstances created the condition ofinsolvency or the manner in which the transfer was made. It is enough allege that the bank acted in contemplation of insolvency, and with a view to prevent by law.' ,, . the application of these assets as' The demurrer will be overruled. Leave to answer in 15 days.
H.A.AG ". BO.ARI,> 0," COUNTY COM'RS.
(Oircuit Oourt, D." Oolo-r:ado. April 18, 1888.,'
AID-BONOS-MISNOMER 011' COMPANY':'"
Under act. Colo. Jan.10,1868,§§52,58, (Rev. St. c.18;)requiringthe approval , , of the voters to the iSl\uMce bonds to aid in thecoustruction of . wagon roads, where .the voter" :approve the issuance of such bonds in the na)lle of the Del Norte ,& SU)ll)llitWagon Road Company, and the county tber.eupon issues and regis.te rs bon as, but in the name of the Del Norte & Sum!?lt-Wagon b.eing one, and the bonds recituig that the voters have a . roved Issue In the latter name, and where the county pays the inte st regularly, and 'assum'es the of the completed ro",4, the valid in the hands of a bonaJiae pur,chaser notwithstandin,g , .
, "At, Law. Action on county p6p.ds. " , The plaintiff, brings this action on bonds issued by the l board of county commissioni;lrs Of Rio Grande county, Colo., to aid in the construction of a wagon road. Roger8 & (J'ldhbert, for plaintiff.. . ' . R. D. Thoinp80'f1 andE. " ·· Richardson, for deferidants. . ' ."
J. . This is an the bona fide, holder.' They this recital:' "
county bonds, ,of which the plaintiff issued July 1,,1876, and contain ,
'''ThIs debt is authQrized l>Y aJ;l actofthe legislative assell.t:/ t: ..,\ territory of Colorado, approved day of January, 1868, and under the pro,visions ofsections 52 and 53 of chapter 18, Revised Statutes of Colorado. In pursuance whereof, upon the 'l3th day of August, '1875, the commissioners of ,Rio Grande county, of said terdtory· .submitted, upon' written applica-