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[No. 1.

Vol. IV.]


III. The locus was a mill yard, and not inclosed or improved land, such as railroads are required by the statute to fence.

The burden is upon the plaintiff to establish the fact that the defendants were bound to fence. 102 Mass. above cited.

IV. The fence having been removed at the request of, and under an arrangement made with, the managing owner, Mr. Stickney, under whom the plaintiff holds, and whose interest he has, he cannot repudiate that agreement; in fact, he had never done so, and had never intimated to the defendants any desire to have the fence rebuilt. It was an agreement acted upon by the defendants, and it is not competent for the plaintiff to repudiate it without notice. It was competent for Stickney to make such an agreement. Tombs v. Rochester & Syracuse Railroad, 18 Barb. 583; Talmadge v. Rensselaer f Saratoga Railroad, 13 Barb. 493.

0. D. Baker, with whom was J. Baker, for the plaintiff, contended that R. S. c. 51, § 20, applies as well to railroads chartered and located before as after the passage of the statute in 1842, c. 9, $ 6. The statute of 1842 does not conflict with the defendants' charter, or the Constitution of the state ; for its enactment was in the exercise of a police power, vital to the safety of the public, which the sovereign cannot alienate.

The agreement of the defendants with Mr. Stickney, one of three prior owners, and grantor of the plaintiff, was not binding on the plaintiff.

The agreement was by parol. It was made with only one of three partners, and was never even known to the other two.

I. It has been settled ever since the time of Lord Kenyon, that one partner cannot bind the partnership land even by deed without a special authority, of which there is no pretence here. Harrison v. Jackson, 7 T. R. 203.

But if one partner cannot bind partnership land by deed, much less can he by parol. And if he cannot bind the land, how can his agreement run with the land ? And if he cannot bind an existing partnership of which he is a member, how can he bind a future partnership of which he is not a member?

II. But whatever the power of partners between each other, a parol contract can never run with the land or affect even the grantees of the person contracting. 1 Smith Lead. Cas. 22; Notes to Spencer's case ; Bickford v. Parsons, 5 C. B. 920.

III. In any view, “ an agreement like this for the nullification of a statute of this state cannot be regarded as having any effect upon the rights of any one who is not a party to it nor shown to be cognizant of or assenting to it.” It amounts at best only to a personal estoppel. Gilman v. Eur. f N. A. R. R. 60 Maine, 235; Shephard v. Buffalo, fc. R. R. 35 N. Y. 641 ; St. Louis R. R. v. Todd, 36 Îll. 409.

IV. Every person has a right to “ use his own land in a natural and ordinary way for the purposes for which it is fit,” and to do so is not negligence; and the mere fact that the plaintiff turned his horse on his own land, knowing it to be unfenced, is not evidence of negligence. Shear. & Red. on Neg. $ 471; Shephard v. Buffalo R. R. 35 N. Y. 641 (overrules the cases in Barb.); Rogers v. Newburyport R. R. 1 Allen, 16; Gardner v. Smith, 7 Mich. 410, 420; McCoy v. Cal. Pac. R. R. 40 Cal. 532; 6 Amr. R. 623; St. Louis R. R. v. Todd, 36 Ill. 409.

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[No. 2.

A. Libbey, in reply. On the point of contributive negligence, he contended that the instructions of the presiding justice did not present the correct rule of law applicable to the case. There was no controversy as to the facts, as to the condition of the road, its situation and manner of construction, the situation of the lot and mill yard, the number of trains and the times they passed the mill, the want of a fence, and the acts of the plaintiff in turning his horse loose. The presiding judge should have held as matter of law, that the facts not disputed did not prove due care on the part of the plaintiff. Lewis v. B. $ 0. R. R. Company, in court of appeals ; W. D., reported in Am. L. Reg. May, 1874, p. 284, and cases cited in note by F. R; Eames v. Salem g L. R. R. Co. 98 Mass. 560; Gilman v. Deerfield, 15 Gray, 577.

DICKERSON, J. The statute requiring railroad corporations to inclose the land taken for their road with fences is a police regulation, designed to secure the safety of the public travel and transportation, and is obligatory, as such, upon all railroad corporations whether chartered before or after its passage. State v. Noyes, 47 Maine, 189; Ind. fc. Railway v. Townsend, 10 Ind. 28; 1 Red. on Railways, 493 and 494 ; 2 Ib. 428.

The counsel for the defendants contend that the land of the plaintiff adjoining the defendants' road was not “inclosed” or “ improved," and was not, therefore, required to be fenced against by the defendants. We think otherwise. Though the land was used partly as a mill yard, it was also mowed, and occasionally used by animals for grazing. The cases cited by the counsel are distinguishable from this case. It appears from them that a railroad company is relieved from the obligation to fence against adjoining lands, when such fence would be a public nuisance, or prevent access to a mill through whose yard the railroad passes, or at points where its engine house, machine shop, car house, wood house, wood shop and depot are so situated as to render a fence unnecessary. These are exceptional cases and do not include the one under consideration.

It is well settled, upon both principle and authority, that a parol agreement for the removal or discontinuance of a fence on the line of a railroad, between the owner of the land and the railroad company, does not run with the land, and cannot, therefore, bind his grantee. Gilman v. Eur. * N. A. R. R. Co. 60 Maine, 235; St. L. f A. R. R. Co. v. Todd, 36 ill. 409.

There can be no question, therefore, but the defendants were guilty of negligence in not building a fence upon the line of their road adjoining the plaintiff's land; and the remaining question to be determined is, whether the plaintiff is guilty of contributory negligence in turning his horse out upon his land, knowing that it was not fenced. The owner of land has a right to use it in a natural and ordinary way for the purposes for which it is fit. This right does not depend upon the performance or non-performance of any duty or obligation enjoined by law upon another in respect to his land. He has a right to expect that the requirements of law will be complied with, and to act accordingly; nor does his knowledge that they have not been, affect his right of use one way or the other. If it did, the neglect of another to obey the law might operate to prevent him from the lawful use of his own property. The common law made it the duty of the owner of land to guard against the escape of his



[No. 2. cattle therefrom, but the statute devolves this duty upon the railroad company in the case under consideration, and the rights of the parties must be determined in accordance with this change. To hold the landowner to the same care of his cattle as the common law required, would be to disregard the statute, and render it inoperative. It was for the defendants to use the necessary care to prevent the escape of the plaintiff's horse on account of their neglect to build the fence. Shear. & Red. on Neg. $ 471.

In Rogers v. Newburyport R. R. Co. 1 Allen, p. 17, which was tort for the loss of a colt run over by the defendants' cars, the court say, “the plaintiff had a right to place his colt in his pasture to feed, and was under no obligation to the defendants to use any care to prevent escape by reason of their neglect to maintain the fence. It was for them to use the necessary care to prevent such an escape.” Gardner v. Smith, 7 Mich. 410.

In McCoy v. Cal. f Pac. R. R. Co. 40 Cal. 532, the line of the road was not fenced where it passed through the field occupied by the plaintiff, and the live stock of the plaintiff running in this field strayed on to the road and were killed by the defendants' train ; and the court held that these facts made out a primâ facie case against the defendants, and also, that the plaintiff was not guilty of contributory negligence, from the fact that he knew that the road was not fenced, when he turned his cattle into the field. Kellogg v. Ch. f. N. W. R. R. Co. 26 Wisc. 223.

The presiding justice stated the rule of law correctly when he instructed the jury that the plaintiff had a right to use his land in the ordinary way, and that the mere fact that the railroad adjoining his land was not fenced, was not proof that he was negligent in turning his horse out there. The question of fact, whether, under all the circumstances of the case, it was negligence in the plaintiff to turn his horse out as he did, was submitted to the jury under appropriate instructions. It was the exclusive province of the jury to determine this question, and they found it in favor of the plaintiff. The jury were aided in their investigation by a plan of the premises, verified and explained by the engineer who drew it. They also saw the witnesses, and could judge of their credibility from their appearance on the stand. It is next to impossible for the court in this class of cases to put itself in the situation of the jury so as to be able to say whether or not its decision would have accorded with theirs if it had occupied their place at the trial. Hence the wisdom of the rule that the court will not set aside a verdict as against evidence or the weight of evidence, unless it is so manifestly so as to render it apparent that the jury had mistaken or disregarded the evidence. In reviewing the testimony in this case, we do not find such ground for setting aside the verdict. Motion and exceptions overruled. Judgment on the verdict.


& there it was nes the jury ury to dejury,

Vol. IV.]

[No. 2.



[OCTOBER, 1876.]




Under the Bankrupt Act of 1867, the assignee might sue in the state courts to recover

the assets of the bankrupt, no exclusive jurisdiction being given to the courts of the United States. Whether such exclusive jurisdiction is given by the Revised Statutes,

qucere. The laws of the United States are as much the law of the land in any state as state laws are; and although, in their enforcement, exclusive jurisdiction may be given to the federal courts, yet where such exclusive jurisdiction is not given, or necessarily implied, the state courts, having competent jurisdiction in other respects, may be

resorted to. In such cases, the state courts do not exercise a new jurisdiction conferred upon them,

but their ordinary jurisdiction derived from their constitution under the state law.

MR. JUSTICE BRADLEY delivered the opinion of the court. This action was brought in May, 1872, in the New York supreme court, county of Kings, by Julius Houseman, as assignee in bankruptcy of Comstock and Young, against Horace B. Claflin, under the 35th section of the bankrupt act, to recover the sum of $1,935.57 (with interest), being the amount collected by Claflin on a judgment against the bankrupts, recovered within four months before the commencement of proceedings in bankruptcy. The ground of the action, as stated in the complaint, was that they (the bankrupts) suffered the judgment to be taken by default, with intent to give Claflin a preference over their other creditors at a time when they were insolvent, and when he knew, or had reasonable cause to believe, that they were insolvent, and that the judgment was obtained in fraud of the bankrupt law. The defendant demurred to the complaint, assigning as cause: first, that the court had no jurisdiction of the subject of the action ; secondly, that the complaint did not state facts sufficient to constitute a cause of action. Judgment was rendered for the plaintiff on the 13th day of January, 1873, and was subsequently affirmed, both by the general term of the supreme court and by the court of appeals. This judgment is brought here by a writ of error under the Act of 1867, which supersedes the 25th section of the judiciary act.

The point principally relied on by the plaintiff in error is, that an assignee in bankruptcy cannot sue in the state courts.

It is argued that the cause of action arises purely and solely out of the provisions of an act of Congress, and can only be prosecuted in the courts of the United States, the state courts having no jurisdiction over the subject. It has been recently settled that the several district and circuit courts of the United States have jurisdiction, under the bankrupt law, of causes arising out of proceedings in bankruptcy pending in other districts. There had been much doubt on the subject, but it was finally settled at Vol. IV.]


[No. 2.

the last term of this court in favor of the jurisdiction. Lathrop v. Drake, 91 U. S. Rep. 516. Had the decision been otherwise, as for a long period was generally supposed to be the law, assignees in bankruptcy, if the position of plaintiff in error is correct, would have been utterly without remedy to collect the assets of the bankrupt in districts other than that in which the bankruptcy proceedings were pending. Neither the state courts nor the federal courts could have entertained jurisdiction. The Revised Statutes, whether inadvertently or not, have made the jurisdiction of the United States courts exclusive in "all matters and proceedings in bankruptcy." Sec. 711. Whether this regulation will or will not affect the cognizance of plenary actions and suits, it is not necessary now to determine. At all events, the question of such cognizance must be met in this case, and being important in the principles involved, would require much deliberate consideration, had it not been already in effect decided by the court.

In the opinion of the court in Lathrop v. Drake it was taken for granted and stated that the state courts had jurisdiction (p. 518); but as the question was not directly involved in that case, it was more fully considered in Eyster v. Gaff, 91 U. S. R. 521, and it was there decided that a state court is not deprived of jurisdiction of a case by the bankruptcy of the defendant, but may proceed to judgment without noticing the bankruptcy proceedings if the assignee does not cause his appearance to be entered, or proceed against him if he does appear. If there were anything in the Constitution to incapacitate the state courts from taking cognizance of causes after the bankruptcy of the parties, as the constitutional argument of the plaintiff in error supposes, the proceedings in bankruptcy would ipso facto determine them. But on this subject, in Eyster v. Gaff, the court say : “It is a mistake to suppose that the bankrupt law avoids, of its own force, all judicial proceedings in the state or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition.” Again: “ The debtor of a bankrupt, or the man who contests the right to real or personal property with him, loses none of those rights by the bankruptcy of his adversary. The same courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions. If it has, for certain classes of actions, conferred a jurisdiction for the benefit of the assignee in the circuit and district courts of the United States, it is concurrent with and does not divest that of the state courts.” Pp. 525, 526.

The same conclusion has been reached in other courts, both federal and state, which hold that the state courts have concurrent jurisdiction with the United States courts of actions and suits in which a bankrupt or his assignee is a party. See Samson v. Burton, 4 Bank. Reg. 1; Payson v. Dietz, 8 Ib. 193; Gilbert v. Priest, 8 Ib. 159; Stevens v. Mechanics' Savings Bank, 101 Mass. 109; Cook v. Whipple, 55 N. Y. 150; Brown v. Hall, 7 Bush, 66; Mays v. Man. Nat. Bank, 64 Penn. 74. There are contrary cases, it is true, as Brigham v. Claflin, 31 Wisc. 607; Voorhees v. Frisbie, 25 Mich. 476, and others; but we think that the former cases are founded on the better reason.

The assignee, by the 14th section of the bankrupt act (R. S. sec, 5046),

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