New-York tribune., 1867-09-07

sUrh in full view Of all the hazards ana vi
oi,,es Of business-in full view not only Of present
and immediate chances of gain or loss, but also OF the
faiIure and remote possibilities and capacities OF tho
nsi,ess 10 be undertaken. This must have been eni-
Denlv true at the organization OF the Merchants Union
Express Company In ITS very nature oo and puSs a m
contemplation was one 20 grow anu anu increase
with the increasing population anu Ine TH TeHhpanHihg
tia|s disappointment In not receiving 1yldeu, or
even the admission OF aggregate loss thus lar ny
m M fst and experimental year OF its existence. On
ts subject it is only just although not very maera TO
Dccd they are wholly due the combined opposition OF
the rival companies which have been mentioned anu
tardard rendered reduction by this Company neces-
sary That reduction was made and has been nam
toed but never down to the rates OF the competing com
panies 1t Just and proper further 70 observe s ss
volume Of the business SI but
more or less profitable. On this PGiH' POM
tho adavts before me b1yo arc 9Ss .a5 eSBds bs
grounds Of relief set forth In the Palntn c3mPaIn.
y met and e9ntroyered Dy & e denosons Of phe
plaintiff and OF certain persons VINO mnenies e The
r. Of IT, the nse adSy 0 saws nothing to reinforce
ms complaint The other persons reIerred 10 ucte,VP t
theory % IS their opnion founded as they say on long
experience and careful! observation OF the express DS
s prosecute their business the lines without
aggregate loss and consequently tat one or to otnel
tbse PREMISES seems to be- that they first in pos
session the greatest experience and are as they
think, the strongest their more yOuhui rVa shou @
retire or be dissolved and wound up by Judicial sen
tence This conclusion is suggested In no very nush1t
manner. On the other hand, the lace 50 , nss"u 0d
,hat competitlon In the business cannot i've, anu
live prodtaby, is controyerted and l ain nait s"is
fed entirely refuted by the opposing h aIhuasI.s M
II is however upon the docrinal cOnclsoh uerNeu a
parenty from these carefully prepares sIaree,%S vi % e
opinions OF the persons referred TO- that PI9pos ~
one or two observations. In business anu cohmcIclal
rivalres it is perfectly lawful for each 70
and distance his Tlva IL ne can icne ~ 1 ,at
right to a monopoly 1t never before suggestcu lO
great ENTERPRISE must DC hos iOee o In H e than
a majority OF the whole, can De lhuu1cu so id 10 ud
clare their wishes II this doctrine can be nalhalhed;
then an Express monopoly. haIinS ~. ontitIed nv
the rail lines of the United Stalcs Is ehtltltu ~
law to hold them ioIe'eb "sIsW'' becanse t
Will never be difficult to find and purchase
Courts and principle will not stop heres 1t must APP
ply all enterprises requiring the association Oh ca
Courts inquire whether rival or competing enterprises
can succeed and if not then to determine when OF then
sanctioned for moment would be received with great
dismay by the people of tns country IL rises 70 mght
this case, that the existence OF powerful rival eau
Ris Ri competitor in legitimate branch Of business;
The remaining grounds for the RELIEF wllch tne plah
demands resolve themselves into the alleged personal
aging Committed. This has, think nothing - 90 WIN
the present motion for receiver Ihe nidchty or ms,
conduct sOme or of all trustees or managers OF
association, afford no ground for taking away the
nights Of the shareholders who constitute the company
either by dissOlyng II taking away IT'S management,
and placing In the hands Of an officer Of the Court In
such case the principles OF oiremedial or pievenye Jus
90 further than TO eJon or forbid the mcolueI
remove the unfaithful officer am not aware OF any
authority dissOiying corporation or an ulcorpO-
rated stock association or Tor taking lts rom
it's proprictors shareholders, on the mere ground hat
one, even all Of ts trustees are unIalthIu Inc N1ul
may cnjoin the trustee, or suspend or remove nm,
cannot substituted lis own officer In the OF the Mer
chants Union Express Company both BY statute law ana
articles OF association three OF its managers are sum
cieut 10 carry on Us que mess. hcIc ic W & i,
number upon whom no mpuiations are cast ny te PAIN
tn by the persons from the rival companies VINO nave
given their dcposons for this motion IL seems proper
however 10 observe That an me accusations anu cn is
of misconduct and uniaithiuness are luy answered Dy
tic oaths of every member OF the Executive Committee
and by the corroDorating dispositions when nave Oeeh
made in opposition to this motion. confess the lInpIes
sion on my mind very strong that these gentlemen nave
done nothing forfeit the confidence OF the stOckQdor
ing of the cause to interfere with their existing relations
of the Company That nothing Of the sort can be done on
speaking OF the peculiar part taken IA ths controversy
by the officers and managers ot the Old ana now IS cA
ward 10 sustain the plauts motion, am Drought 10
auotheF view which as the case now ApPear seGs @ 20
mo entirely decisive The answer Of the deiedalt5 Vas
served ON the plaintiffs morcl than TWO uohlhs ago.
that answer It h alleged With great dsnclHcs' on ,lo
ou and belief oi the defcudant that waterbury
the plaintiff not the real party IN tins su Du % 'no
suit It's prosecuted wholly at the inssution ana ia te IN
teres of the rival EXPIRE companies winch are INC Ich
aud actual plaintiffs IN the controversy Inns bN anu
serious allegation called for dena ON tne patt oi tne
plaintiff In preparing hsown adayE FOR this notion and
,t. =, ,ris d,ro.ltio,s have been read There is no
such denial not the slightest reason to suppose
that tins omission uuintcntoncd or ihadNcttel ana,
ctniio ;, ul many other circums ances which need
not be particularly noticed compelled 10 take the
fact alleged by the defendants te De trc Tor All me
nrnos ~ fbts motion: and taking it TO be true
hial 10 the snt An nIlusory suit n the Of q share
holder but rally prosecuted by aud III tho interest OF
rival and competing company cannot be maintained for
Tho purpose OF dssoyiug restraining another associ1
ton company OF which the nominal palhtH may De
| member This has been repeatedly adiudged In the
English Chanccry Courts, and the principle is 80 pan as
not 20 need further lusiratOn-tSee Forrest agt MAN
chester 4 Co., Jurst new SERIES Burt ast;
British National, SC, Insurance CO.. id. 6l2l
In all that have said far. no reference has beeh
had Ia the rules which govern IN mere common "a" pal
norships because the defendants are not n my Judgment
association of that kind. II this were other"se-ithe
defendants were more partnership WIN none y! tnv
corporate attributes conferred on them by tue statutes Oi
h state should siill feel the difficulty IN fnding
any principle or authority To sustain tne ACTION oi 'iis
proceeding In partnerships Wmch nave no hlatu'o on
corporate qualities shall find the following rules wen
settled: a. The majority oi helhbeI' govern not HI
standing the dissent Of the minority, where there is 10
raudor unfair dealing In thls case t9e pin IS ono 0l
many thousands none OF whom, 20 Iu Rs appears con
cur with him. C2J When partners are numerous ana
duration and arrangement OF concern are provided
Tor by articles those govern the rights and relations 0f
each partner (StOry On Part s. i2i, 2Oi 23) 90 a re-
ceiver will be- appointed only with view to dissolution
and winding up Receivers not appointed To carry on
and manage the business Of partnership (7t0ry on
will not be ecreed except OF insolvency or where
the entire capital spent and some Of the parties are u'
willing go further where the undertaking IN us ma
urc and essence present some nsurmOuntable difficulty,
or where partner is guilty Of such grossly improper
copartner heoncern. In.hese, andlpossDly some
other extreme cases Court OF Equity may decree dis
solution and rcceiversp Bat ma nothing 10 JustHy
judicial Intervention In IA case like the present
In closing deem IT. proper to say Tat Ihe evidence eo
Express Company is institution having vast varied,
and sefu relations with the public IL Is now In active
and successful operation the most pOpulouS ana
commercial regions Of the United States IL the suppress
SION ~ hi Company could be brought within the powers
and duties Of this Court public good but great public
inconvenience and loss would be the result. The neees
sary effect such decision would be to restore per
nenty monopov In branch OF business of great and
increasing Importance In this country Ia merchants ana
other classes OF people do not see the slghtest
pretSxt for such an Interference with Legitimate and
honorable enterprise and certainly feel no regret that tho
facts aud principles which the involves have brought
to this conclusion.
The motion for a receiver, &c, must be denied.
q. c. BARNARD, Justice Supreme Court
Before Mr.. Justice LEONARD.
THE OLYMPIC THEATER CASE-JUDGE LEONARD
vACATEs HIS ORDER.