Page:Federal Reporter, 1st Series, Volume 1.djvu/760

 752 FEDERAL REPORTES. �and to collect toUs for the use of the same, is, to say the least, the most valuable part of the franchise conferred by congress upon the railroad company, as a telegraph company. This right is alienated by a clear and unequivocal assignaient or transfer from the railroad company to tùe plaintiff. Without discussing otber features of the contracta I am compelled to hold that this feature is alone sufQcient to render them in �I �excess of the corporate power of the company. �4. This brings me to the question whether the railroad com- pany can be permitted to rescind the contract, and on its own motion to take possession of the lines, offices and property, without first returning the consideration received therefor from the plaintiff. As aiready stated, the railroad company received from the plaintiff, in payment for the property and rights agreed to be transferred by said contracta, 17,800 shares of the capital stock of the corporation plaintiff. There is a dispute as to the value of the stock, but I believe it is not placed by any one of the deponents at less than $150,000, while some of them place it at a much higher sum. �No case has been cited in argument, nor have I been able to find one, which holds that a court of equity, having juris- diction of the parties to and the subject-matter of an illegal contract, should require one of such parties to give up what he has received under it, without requiring the other to do the same thing. Many cases hold that a corporation which has made a contract ultra vires, which has not been fuUy per- formed, is not estopped from pleading its own want of power when sued upon such contract ; but that doctrine does not apply to a case where a party cornes into a court of equity, and, while retaining ail that he has received upon such a con- tract, asks to be permitted to i*etake what he has parted with under it. I take it there is nothing in the law, as there is cer- tainly nothing in the principles of equity, to estop the court from saying that the obligation to return the property trans- ferred under these contracts is mutual, and shall not be en- forced against one of the parties without being at the same time enforced against the other. As the parties and the sub- ject-matter are now before the court, it is the duty of the ��� �