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In Thorn v. Sweeney, recently decided by the Br. Co. 14 Conn. 565 ; Wason v. Sanborn, 45 Supreme Court of Nevada, the plaintiff applied N. H. 170; Blake v. City of Brooklyn, for an injunction to prevent the defendant Barb. 301; Murray v. Knapp, 42 How. Pr. from running a ditch across his land, and the

462 ; Ib., 62 Barb. 566; Nicodemus v. Nicolatter answered, alleging that the part of the demus, 41 Md. 537; Weigel v. Walsh, 45 Mo. plaintiff's land over which the ditch had been

560; Herbert v. Carslake, 11 N. J. Eq. 241; run was rocky, barren, and of no value; that Catching v. Terrell, 10 Ga. 578; Wooding v. the plaintiff had suffered no damage from its

Malone, 30 Ga. 980; High on Inj., $$ 459, construction, and that the defendant was

483; Eden on Inj. 231; 2 Story Eq. 925, 928. solvent and able to respond in damages, if any had been caused by his act. The injunction

THE LIABILITY OF RAILROAD COMPANIES was refused. The foundation of the juris

IN MISSOURI FOR KILLING STOCK. I. diction in a court of equity to issue an in

As there seems to be some confusion in the junction in aid of the action of trespass, is the

decisions of the Supreme Court of Missouri, probability of irreparable injury, the inad

touching the liability of railroad companies, equacy of pecuniary compensation, or the pre

both at common law and under the different vention of a multiplicity of suits where sections of the statute, for killing or injuring the rights are controverted by numerous stock, the object of this article is to draw the persons. The plaintiff is not entitled to the

lines as clearly as possible between the different injunction as a matter of right, because another grounds of liability, that the subject may be threatens to continue his illegal acts. It must better understood by the courts and those be shown that the property has some peculiar concerned in such practice value that could not be compensated in dam- There are two statutes under which a railages. This fact is clearly pointed out in the road company may be liable for killing or inopinion of the chancellor in Jerome v. Ross, 7 juring stock in consequence of failing to fence Johns, Ch. 334, a leading case upon this sub- its road, viz: $ 43, 1 W. S., 310, Laws 1877, ject. “I do not know a case,

p. 373, and § 5, 1 W. S. 520, and another chancellor, “ in which an injunction has been ($ 38), under which it may be liable on account granted to restrain a trespasser, merely be- of failing to ring the bell or sound the whistle cause he was a trespasser, without showing before crossing a road or street; and it may that the property itself was of peculiar be liable at common law, for damages caused value and could not well admit of due recom

om- by its negligence. We shall first notice the pense, and would be destroyed by repeated circumstances under which the road should be acts of trespass. In ordinary cases, the dam- fenced, and then point out the nature and exages to be assessed by a jury will be adequate tent of the company's liability under the diffor a check and for a recompense. Every ferent grounds above mentioned. man is undoubtedly entitled to be protected in 1. The road must be fenced.—$ 43, the possession and enjoyment of his property, amended in 1875 and in 1877 (L. 1877, p. though it may be of no intrinsic value. He 373) omits the word " prairie," and requires may have on his land a large mound of useless the road to be fenced on both sides where it stone or sand, which he may not deem worth passes through, along or adjoining, inclosed or the

expense of inclosing, and yet it would be a cultivated fields, or uninclosed lands (timber trespass for any person to remove any portion as well as prairie lands), with necessary crossof the stone or sand without his consent; and ings and suitable cattle guards, etc., and until he would be entitled to his action, even though this is done the company is liable in double the the damages were nominal. But would it be amount of all damages which shall be done to proper for this court to assume cognizance of animals on the road, or by reason of animals such a trespass and lay the interdict of an escaping from or coming upon said lands, injunction upon it? I apprehend not.” fields, or inclosures, occasioned in either case The doctrine announced in this

by the failure to construct or maintain such is fully supported by the following author- fences or cattle guards. The fence should be ities: Wood Sutcliffe, 42 Eng. Ch. built as soon as the company commences using 165; Bassett v. Salisbury Manufacturing Com- the road. Comings v. H. & C. M. R. R. Co., pany, 47 N. H. 437; Bigelow v. The Hartford 48 Mo. 512, and it must repair its fence




within a reasonable time after it is burnt or that the injury happened at a point on the gets out of repair. The road must be fenced road where it was not fenced, and not at the where it runs along the line of a public high- crossing of any public highway, and these way. Robinson v. C. & A. R. R. Co., 57 Mo. facts being proved, the law presumes negli494 ; 1 Redf. Railw. (5 ed.), 517; 24 Ind. gence, or rather dispenses with it, and prima 222, 283, and where the streets of a town facie authorizes a recovery for the value of the terminate at its track. T. W. & W. R. R. Co. animal killed, or for the actual damages susv. Cary, 12 Am. L. Reg., N. S. 534. One who tained. Aubuchon v. St. L. & I. M. R. R. has contracted with the company to build the Co., 52 Mo. 522; 54 Mo. 228. It has been fence and failed to do so, can not recover for frequently held, however, that, in an action for injury sustained on account of there being no killing stock, the statement of the cause of fence. Ells v. Pacific R. R. Co., 48 Mo. 231; action


be very general, and to authorize a 16 Ind. 102 ; 25 Ind. 413.

recovery the plaintiff must prove actual negli2. Not bound to fence.—The company is gence, or that the injury occurred at a place not bound to fence its road where it runs where there was no fence or road-crossing, through a town or city (whether incorporated from which the law raises the inference of or not), and could not be fenced without ob- negligence. Brown v. H. & St. Jo. R. R. Co., structing or crossing the streets and alleys 33 Mo. 309; Calvert v. H. & St. Jo. R. R., actually opened or merely laid out and dedi- 34 Mo. 242, 235; Calvert v. II. & St. Jo. R. cated to public use. Wier v. St. L. & I. M. R. Co., 38 Mo. 467 ; Iba v. H. & St. Jo. R. R. R. 48 Mo. 558. But where the town R. Co., 45 Mo. 469. exists merely on paper, and has no streets

Other cases seem

hold that where the which are or can be opened or used, ibid. plaintiff relies upon the statute, and not on Iba v. H. & St. Jo. R. R. Co., 45 Mo. 469. Or if actual negligence at common law, he must the lines of the town corporation embrace por- | bring his case under the statute by his pleadtions of the adjacent country not laid out as a

ings and evidence. Hausberger v. Pacific R. town, or laid out so that no streets can cross

R. Co., 43 Mo. 196; 64 Mo. 542. the railroad, the company shall fence its road. 4. When liable for double damages.—When Ells v. Pacific R. R. Co., 48 Mo. 231; Lloyd

the action is founded on 43, the petition or v. Pacific R. R. Co., 49 Mo. 199.

The com

statement must allege the facts showing the rany is not bound to fence at a station or defendant's liability, and in some way refer to depot which public convenience requires should the statute, either by stating the facts accordbe left open for the transaction of business and, ing to its requirements or by direct reference the reception and discharge of freight and

to it—with a demand for double damages, so passengers, but the fact that a switch is laid that it may be known that the action is based down along the main track does not relieve on the particular statute. Walther v. Warner, the company from fencing, if the grounds em- 26 Mo. 143; Wood v. St. L., K. C. & N. R. R. ployed are not necessary for the transaction of Co., 58 Mo. 109; Meyer v. A. & P. R. R. Co., business at the depot. Morris v. St. L., K. C. 64 Mo. 542; 43 Mo. 196 ; Kennayde v. Pacific & N. R. R. Co., 58 Mo. 78; 49 Mo. 199; R. R. Co., 45 Mo. 255. Swearingen v. M., K. & T. R. R. Co., 64 Mo. In this case, as under $ 5, it is not necessary 73, 412.

to allege or prove negligence on the part of the 3. When liable for single damages.—$ 5, 1 company; but the use of the words “negliW. $. 520, provides that the owner of any gently,” or other like epithets, will not make animal killed or injured by the cars may re- the suit a common law action, at the option of cover the value thereof in an action against the the plaintiff, when the averments of the petition company, without any proof of negligence, or statement show that the action is founded unskillfulness or misconduct on the part of the on the statute. Cary v. St. L., K. C. & N. R. officers or agents of the company, when the R. Co., 60 Mo. 209; Crutchfield v. St. L., K. injury occurs on any portion of the road not C. & N. R. R. Co., 64 Mo. 255; 58 Mo. 109,

45. And some of these cases hold that the crossing of any public highway. To bring the plaintiff can not recover under $ 5 where the case under this statute it should be alleged in petition states a case under $ 43. But it has the petition (or statement before the justice),

been held otherwise where the case is de

inclosed by a lawful fence

, and

not on the 45.

fectively stated, and the petition is not good The statute allowing double damages is both under the statute, but is good at common law. compensatory and punitory; compensatory so Garner v. H. & St. Jo. R. R. Co., 34 Mo. 235. far as it provides a remedy for the value of the See 45 Mo. 469; 48 Mo. 512; 46 Mo. 368. loss actually sustained, and punitory in award

5. Evidence.—There is some confusion in the ing as much more, simply as a penalty on the decided cases, as to the quantity or sufficiency company for failure to comply with the statute. of the evidence required to make out a case Seaton v. C. R. I. & P. R. R. Co. 55 Mo. under $ 43. In some cases, it is held that it 416; 53 Mo. 525. And, as said by Judge must appear that the animal injured entered Napton: “So far as the law is to be regarded upon the road in consequence of the absence as punitive, it should be strictly construed, of fences, or cattle guards, which the com

and so

as not to enlarge the liability it impany was bound to make and maintain, i. e., poses, nor allow a recovery unless the party the damage must be 'occasioned by the seeking it brings his case strictly within the failure to construct or maintain such fences or terms or conditions authorizing it.

So far as cattle guards.” Cecil v. Pacific R. R. Co. 47 it is compensatory for an injury done, it is to Mo. 246 ; 54 Mo. 240; 60 Mo. 567; 45 Mo. be construed as any other statute.” Parish v. 469. But in other decisions, the court has ap

M., K. & T. R. R., 63 Mo. 284. If this conplied to this case the rule of evidence appli- struction be correct, and we think it is, the cable to a case under § 5, and held that, plaintiff must show that the animal injured " whenever it is shown that stock is killed on came upon the road where there was no fence, the track of the railroad at a point where it is and in consequence of that fact, thereby showthe duty of a railroad company to fence the ing inferentially, at least, that the injury was road, and not at a road crossing, and the com- occasioned by the failure to fence. Fickle v. pany has failed to fence the road as required St. L., K. C. & N. R. R. Co., 54 Mo. 219; 62 by law, a prima facie case is made for the Mo. 562. This should be so ruled because § plaintiff, and he is not required to show, by 5 of the damage act gives a complete remedy affirmative evidence, that the stock were caused for the full value of any such injury, and to go on the track by the failure of the com- proving the injury and the absence of a fence pany to fence the road.”

Walther v. Pacific and road crossing makes a prima facie case. R. R. Co., 55 Mo. 271; 54 Mo. 228, 219. It may be observed that it seems to be

In the matter of pleading and evidence the conceded that, if the animal is trespassing on two cases should be governed by different the lands of a proprietor adjoining the road, rules. Actual negligence is dispensed with in and thence goes upon the road and is killed, either case, but under $ 5, when the injury is the company is not liable. Ells v. Pacific R. shown to have occurred where there was no R. Co., 55 Mo. 278.

And the company is fence or road crossing, the law assumes that it not liable for injury caused by fright. The was occasioned by the want of a fence, and the ani mal must be struck by the cars, and the plaintiff's right to recover, in the absence of damages must arise from actual collision by the rebutting testimony, results as a matter of law; locomotive or cars with the animal injured. while § 43 grants no presumption of law or Lafferty v. H., & St. Jo. R. R. Co., 44 Mo. fact as to whether the injury was occasioned 291. Again, if the plaintiff's own negligence by the absence of a fence or not. It simply

or want of proper care was the direct and declares the liability of the company in double proximate cause of the injury, or contributed the amount of damages to animals, “ occasion- directly toward it, he can not recover, noted by the failure to construct and maintain withstanding the failure of the company to fences or cattle guards." The plaintiff can not fence, etc. recover unless the injury was occasioned by 6. Wno should be plaintif.-It has been conthe failure to fence, and whether it was so oC- tended that the suit to recover double damcasioned or not, is a question of fact to be de- ages under $ 43, should be brought in the name termined by the jury from the evidence in the of the State, but it has been uniformly held that

Of course, in passing upon this ques- the owner of the animal injured should be tion all reasonable, natural or probable infer- plaintiff. 53 Mo. 525; 54 Mo. 219; 55 Mo. ences may be drawn by the jury from the facts 416; 57 Mo. 152. A plaintiff can not recover and circumstances in proof.

for injury to property belonging to his minor


son. Morris v. St. L., K. C. & N. R. R. Co., a contingent settlement was made, after the ap58 Mo. 78; nor for property which does not

peal, with one Herr, who had charge of the de

fense, by which, in event of the appellants' success belong to him. Brown v. St. Jo. R. R. Co.,

in reversing the decree, the defendants were to 33 Mo. 309.

pay the sum of $1,000, in full, for past damages, 7. The verdict should be for single damages, and a perpetual license for their two mills. An and the court should give judgment for double

examiner was appointed to take testimony in supthe amount of the verdict. Norton v. H. &

port of and against the motion.

It appeared from the evidence so taken, that deSt. Jo. R. R. Co., 48 Mo. 387; 28 Mo. 147;

fendants, at the time suit was first instituted 53 Mo. 525; 59 Mo. 112 ; 58 Mo. 109, 480. against them by the Cochrane party, were owners But as the statutes authorize a recovery of

of patents claimed to cover the same invention, double damages, if the plaintiff can recover at

and had brought suits of their own against certain

millers; but that, under advice of counsel and exall, the jury may return their verdict for the

perts, these suits had been all abandoned before same, and judgment should be entered on the

the contingent settlement was made. It also apverdict. Seaton v. C. R. I. & P. R. R. Co. peared that the case of the defense was very inn55 Mo. 416; 63 Mo. 284; 58 Mo. 109.

perfectly prepared even in the lower court, and that

after settlement Herr, the representative of deH. S. K.

fendants, exerted himself to conduct the case as (TO BE CONTINUED.)

inexpensively as was consistent with an appear

ance in court. The question of the identity of the MOTION TO VACATE DECREE FOR COLLU- original with the re-issue process patent, the most SION-RIGHTS OF THIRD PARTIES, important feature of the case, was wholly omitted

from the defense. COCHRANE ET AL. V. DEENER ET AL.

The consideration for the contingent settlement

was the agreement by defendants to submit the Supreme Court of the United States, October Term,

case in the supreme court on printed briefs under 1877.

the rule. ON MOTION of third parties to vacate decree, ren- For the motion, George Harding and Frederick dered in this case (reported 94 U, S. 780), on ground N. Judson. of collusion between parties to the cause; held, that Against the motion, Matt. H. Carpenter and Rodthere was failure to prove collusion, but that under the

ney Mason. circumstances third parties interested in defeating the patents in question should have a rehearing when

MR. JUSTICE BRADLEY delivered the opinion of a new case came before the court.

the court.

After a careful examination of the evidence adThe appellants brought an action in equity, in duced on the motion to vacate the decree in this the Supreme Court of the District of Columbia, case, we see no ground to believe that the appelagainst the defendants, alleging infringement of lants are chargeable with any collusion with the what are known as the Cochrane flour patents, appellees in reference to the argument of the apclaimed to cover the process and mechanism of peal. On the contrary, the weight of the evidence making nero process " flour. The court of the is, that they repelled any arrangement or propodistrict dismissed the bill, and, on appeal, the Su- sition which might look to that end. Whilst we preme Court of the United States, at Oct. term, 1876, would not hesitate to set aside a decree collusively reversed the decree, holding that the patents sued obtained, the proof ought to be very clear to inon were valid, and that defendents infringed (see duce us to do this at the instance of strangers to decision reported in 94 U. S. P. 780). The appel- the suit, though incidentally affected by the decilants, organized as the American Middlings Purifier sion of the question involved. Company, immediately commenced suit against At the same time, as the decision in this case is millers in different circuits, asking special injunc- made the basis of applications for injunctions tions on the basis of this decision. On the hearing against third parties in the circuit court, it is right of such application, the firm of J. A. Christian & that we should say that, in the argument of the Company, at Minneapolis, Minn., proprietors of appeal before us, the case on the part of the apthe largest mill in the United States, were placed pellees was, as it seemed to us, very imperfectly under bonds of $250,000, in lieu of an injunction. presented, and the evidence laid before us on this The decision of the court, denying a similar ap- motion demonstrates the fact that the appellees, plication, at St. Louis, last September, against the in consequence of the conditional arrangement Atlantic Milling Company, is reported 5 Cent. L. with the appellants, which they secured before the J. 323.

argument was had, or for some other cause, omitA number of the millers, thus sued, filed a mo- ted to prosecute their defense with that degree of tion in the Supreme Court of the United States, at

of the the present term, asking to have the decree in the case would otherwise have deinauded. "The

result Deener case vacated, on the ground of collusion was that the labor of the court, and its liability to between the parties in that court. An order to overlook points of weight and importance, were show cause was made, and the appellants filed an greatly increased. As the case was presented to us, answer,

denying any collusion, but admitted that we see no cause for changing our views. But, under

the circumstances, we think that third parties, who had no opportunity of being heard, and whose interests, as opposed to the Cochrane patents, are very important, should not be concluded from having a further hearing upon it, whenever a future case may be presented for our consideration.

The motion is denied with costs. EQUITY JURISDICTION — CONSOLIDATION


KNIGHT BROTHERS V. OGDEN BROTHERS. OGDEN ET AL, TRUSTEES, v. KNIGHT BROS. Chancery Court at Nashville, Tenn., October Term,

1877. Before Hon. W. F. COOPER, Chancellor. The court of chancery bas no power to interfere with the rights of parties, in invitum, by an order directing the consolidation of independent suits.

Andrew McClain, for Knight Bros; G. P. Thruston, for other parties.

THE CHANCELLOR: The complainants in the first of these bills, being judgment creditors of W. H. Ogden, levied an execution on the undivided interest of the debtor in the partnership effects of Ogden Bros., a firm composed of W. H. Ogden and A. S. Ogden, and, having, at the execution sale, bought the interest levied on, filed the bill for a partnership account. Such proceedings were had that a final decree was rendered, and the account ordered. The opinion of the court is reported in 2 Tenn. Ch. 473.

Pending the taking of the account, and on the 2nd of Nov., 1875, J. G. Ogden and G. P. Thruston, as the beneficial owners in trust for the Peoples Bank, of judgments against the Knight Bros., recovered by J. G. Ogden, trustee, in 1871, filed the second bill to subject to the satisfaction of their judgments the interest of the Knight Bros. in the partnership effects of Ogden Bros., and in any recovery which might be had in the original cause. To this bill the Knight Bros. put in an answer, which they also undertake to file as a cross-bill against the complainants, J. G. Ogden and Thruston, and against their co-defendants, W. H. Ogden and A. S. Ogden. This answer and cross-bill admits the recovery of judgments against the Knight Bros. as charged, but insists upon proof of the interest of J. S. Ogden and Thruston therein, as trustees. There is a detail of certain facts, upon which is based the charge, that J. S. Ogden has been, and is acting in collusion with his brothers, W. H. and A. S. Ogden, and “that the filing of the bill in the present case is a fraud, and designed to take the property of Knight Bros. in the concern of Ogden Bros. from under the security afforded by the bond executed by A. S. Ogden upon the dissolution of the injunction” in the first cause. One prayer of the answer filed as a cross-bill is, that this cause be consolidated and heard with the cause of Knight Bros. v. Ogden Bros.

The books of equity practice are entirely silent on the subject of consolidating causes in this court, from which fact the inference may be fairly drawn that no such practice exists. In Seigliley v. Brown,

16 Ves. 344, Sir Samuel Romilly argued in support of a motion of consolidation made by the defendants in several suits by a rector for an account of tithes, the motion being made as of course. But Lord Eldon was manifestly ignorant of any practice of consolidating causes in equity, for he said: “I will consult some of the Barons of the Exchequer upon this point, not seeing my way very clearly to determine what ought to be the practice here." On a subsequent day, he said he had mentioned the point to Baron Thompson, who had no idea that the order was of course in the Court of Exchequer, though sometimes made under special circumstances. The order was, therefore, not made. The note to this case is as follows: “ There are cases, no doubt, in which the Court of Exchequer has ordered several causes, brought for the same matters, involving the like questions, and seeking the same relief, to be consolidated. Scott V. Allgood, cited in 1 Fowl. Ex. Pr., 81; Mason v. Clift, and Pike v. Brook, Id. 214. But this court, both when sitting as a court of law, and when sitting as a court of equity, bas, in later cases, disapproved that practice. LeJenne v. Sheridan, Forrest Ex. Rep. 31; Forman v. Blake, 7 Price, 654: Foreman v. Southwood, 8 Price, 575." In Forinan v. Blake, Chief Baron Richards said: “I bave never heard of an order, in the course of my experience, for consolidating causes in equity, nor can I conceive upon what principle it can be done." The Warden and Fellows of Manchester College v. Isherwood, 2 Sim. 476, was a case where the plaintiffs had filed sixteen bills for tithes against different persons, who made the same defense, and moved for the consolidation of the causes. The ViceChancellor reviewed the authorities, concluding thus: “It is evident, therefore, that neither in this court nor the court of Exchequer, has the practice prevailed of compelling the plaintiff to consolidate his different suits against several defendants; and the present motion, being a mere experiment in opposition to practice, must be refused with costs." In Cumming v. Slater, 1 Y. & C. C. C., 484, the Vice-Chancellor refused to make a decree for accounts, it appearing that, in another suit, a decree for the same accounts had been rendered, the plaintiff in this suit being by the decree an acting party in the other, and directed the cause to stand over and come on with the other suit upon the hearing of that cause on further directions. But in Godfrey v. Maw., 2 Sim. 485, the same learned judge refused to extend the rule to cases where the two suits were between the same parties and involved the same subject-matter, the frame of the two suits and the relative position of the parties to each not being the same. And see Wendell v. Wendell, 3 Paige, 509, where the chancellor held that one of two bills of foreclosure was unnecessary, and refused to allow the heirs of the mortgigor to be charged with the costs of more than one, giving the solicitor, who was the same in both suits, le:ive to elect in which suit he would take the decree. These latter cases indicate the mode in which the court, without consolidation, may control unnecessary litigation. In Burnham v. Dalling, 1 C. E. Green, 310, Chancellor Green

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