Nicholson vs. City of Chicago He also cited Barrel vs. Transportation Company, 3 Wallace, 424, to show that the allowance of the appeal was actually necessary and that a petition presented for the filing of a bond is not the allowance of an appeal; also, Seymour vs. Freer, 5 Wallace, 822. DRUMMOND, J.-It was understood by all the counsel, and by the court, that an appeal was asked for by the city and allowed by the court. That was done orally, and no formal order was entered, nor asked for, nor considered necessary. In such a case, if we can make an order nunc pro tunc, it ought to be made. I do not suppose Mr. Irwin did come in and formally ask for an appeal in so many words, but he did in reality. The court acted upon it, although the court did not direct the clerk to enter an appeal. I never could have understood that it was necessary. It is a sort of interpolation that they have made in the Supreme Court. At any rate, the question has never been made, and there is nothing in the statute about it. The case cited from 3 Wallace is the first decision that has come under my observation where it was decided by the Supreme Court that an allowance of an appeal entered of record in the court was indispensable. It seems to me that it would be sticking to the bark to hold that this appeal was not in reality well taken. It may be true that the counsel for the city did not come to the court and formally say, "I ask for an appeal," and the court did not formally say, "The appeal is allowed," but the counsel for the city came into court and intimated to the court, and gave the court to understand, that the city intended to appeal. The court so understood it, and when the court approved of the bond the court did it upon the understanding that the city desired to take an appeal, and intended to prosecute it. That being so, it seems to me that it would be giving rather too much weight to this technical rule which the Supreme Court has established recently that the party must come into court and pray for an appeal, and United States vs. U. S. Express Co. that the court must allow it as a matter of form. I think that it would be very difficult to carry out this new rule in all cases, one of which has just been stated by the counsel for the city, where the court had adjourned. Therefore, I am prepared to enter an order, although I think, to all intents and purposes, the appeal was prayed and allowed. I will direct the entry of an order nunc pro tunc, allowing the appeal. UNITED STATES, EX REL., &c., vs. THE UNITED STATES EXPRESS COMPANY. CIRCUIT COURT.-NORTHERN DISTRICT OF ILLINOIS.-JUNE, 1869. 1. UNSTAMPED LETTER OF ADVICE.-It is not a violation of the post office laws for an express company to carry with a money letter or package, an unstamped letter of advice concerning said money. 2. It was the intention of Congress, in the Act of March 3, 1845, to permit an unstamped letter of advice relating merely to the article shipped to be transmitted with such article. DRUMMOND, J.-This case is submitted to the court on an agreed statement of facts to the following effect: that the defendant is an express company, and common carrier of money between Chicago and Springfield, Illinois, over the Chicago, Alton & St. Louis Railway, a United States mail route; that the packages of the express company are transported in a car under their exclusive control; that the express company does not carry letters unless in a government stamped envelope, except as money packages received for transportation, and letters enclosed therewith relating there to. United States vs. U. S. Express Co. On the first day of May, 1868, the express company, in the usual course of its business, received, at Chicago, a package in a letter envelope unstamped, containing a sum of money and a letter relating thereto, addressed to the consignee in Springfield, Illinois, receiving the usual rate of pay for transmitting such a sum of money. The company carried the package to its destination, over and upon the route aforesaid, in a car such as has been described, and delivered the same to the consignee. It is claimed, under this statement of facts, that the defendant violated the laws of the United States concerning the conveyance of letters from place to place between which the mail is regularly transported under the authority of the postoffice department. The question is whether the act set forth in the agreed statement of facts comes within any of the laws upon that subject. We understand that it is claimed to be a violation of the 9th section of the act of March 3, 1845,' which declares that it shall be unlawful for any person or persons to establish any private express for the conveyance of letters or packets, or in any manner cause or provide for the conveyance of the same by regular trips, of any letters or packages or other matter properly transmittible in the United States mail, except newspapers, pamphlets, magazines, and periodicals. If this section stood alone there might be some question whether the words "in any manner to cause to be conveyed any letters or other matter properly transmittible in the United States mail," did not cover the case as stated; but the 10th section of the same law declares "that it shall not be lawful for any stage coach, railroad car, steamboat, packet, boat, or other vehicle or vessel, nor any of the owners, managers, servants, or crews of either, which regularly perform trips at stated periods on a post route, or between two or more * * * 15 U. S. Statutes at Large, 731, 735. United States vs. U. S. Express Co. cities, towns, or other places, from one to the other, over which the United States mail is regularly conveyed * * * to transport or convey, otherwise than in the mail, any letter or letters * * * except such as may have relation to some part of the cargo of such steamboat, packet, boat, or to some article at the same time conveyed by the same stage-coach, railroad car, or other vehicle." * ** The question is whether this case is not fairly within the exceptions contained in the 10th section. We think it is. The letter which was transmitted by the express company was in an envelope containing money, and related to the money, and we think that it was the intention of Congress in framing this 10th section to allow a letter to be sent accompanying any article of property, provided it related merely to the article of property or money sent, and did not concern any other subject. In other words, it was the intention of Congress to permit a party who transmitted any article of property or money, by an express company or otherwise, to send at the same time and by the same mode of conveyance, although it might be between cities where there was a post route, and where the United States mail was carried, a letter of advice, merely relating to the money or property thus sent. The main object of the 9th section seems to have been to prevent the establishment of express or other companies to come in competition with the transmission of the mail under the authority of the government, although it was clearly intended. also to prevent the transmission or conveyance of letters by such conveyances except in connection with any article of property sent. These provisions of the post-office law being in derogation of common right, must be construed strictly, and in the absence of clear and explicit language forbidding the carriage of a letter, under the circumstances indicated, we must hold that the right to do so is not interfered with. United States vs. U. S. Express Co. The 8th section of the act of August 31, 1852,' has been referred to. The object of that section was to authorize the Postmaster-General to provide suitable letter envelopes, with proper water-marks and other guards against counterfeits, which were to be sold to any person at their cost, and which when used by enclosing a letter in such government envelope thus stamped, might be transmitted by express companies or by any one between places where there was a post route, and where the United States mail was carried, provided the envelope was duly sealed or closed in such a way that the letter could not be taken from the envelope without tearing or destroying it. This law simply declared that when letters were within these government envelopes they might be carried in any quantity by express companies, so that when they reached their destination and were received by the person to whom they were addressed, they were defaced in such a way that they could not be again used. The government thus reaped all the advantage of their regular transmission through the mail, and the defacement of the stamps by the post-office officials. Without this provision it is apparent, that, the express companies would not have this authority, and the agreed case declares that the defendants have never carried letters in any other way than is thus provided, or as accompanying and relating to some article of property or money sent. The instructions given by the post-office department of 1866, are entirely consistent with the view which we have expressed of the law. Davis, J., concurring. 10 U. S. Statutes at Large, 141. |