136
FEDERAL REPORTER.
WitS a period somewhat later than the day of the levy of the aHach. IDent; but the court will presume that if they were entirely insolvent at the time of the delivery of the execution, they were so at the time of the issue of the attachment. At all events, the allegation is sufficient to shift the burden, and to make it the duty of the defendant to show that the defendants in the attachment were solvent, and that the money could have been realized. It follo'ws that the motion for It new trial must be overruled.
WALKENHA UER
V.
CHICAGO, D. & Q. R. Co. February, 1882.)
(Circuit Court, D. Iowa.
RULROAD-CODE, IOWA, § 'ro CmLD. ,.;('ct ion 12139 of the Iowa Codc of 1873, providing that" any corporation
operating a railway, that fails to fence the samc against live-stock at large, at all points where such right to fenee shall be liable to the owner of anv stoel, injured (lr ki.led by reason of the want of such fence, or for the value' of the property or damage caused, unless the same was occasioned hy the willful act of tile owner or agent," does not impose on such ra.lroad corporation the absolute outyof fencing, and it wiil not be liable for an injury caused to a child re:lson of the ausence of a fellce alone, no other fault or negligence bemg charged
At Law. 1'. C. Whiteley and Nl'w1n(ln cf: Blfl7..e, for plaintiff. P. Henry Smyth and H. H. Trimble, for defendant. MCCRARY, J. Where the statute imposes upon a railway company the duty to fence its track, it may well be claimed tllat the neglect of that dutyis negligence, for all the consequences of which the company would be liable; and snch being the rule, it might be contended, with much force of argument, that the company would be liable for an injury to an infant child caused by the absence of such fence, notwithstanding the fact that the purpose of the statute may have been to prevent injury to live-stock. It is not, however, necessary in the present case to consider these questions, for we are of the opinion that the Iowa statute did not impose upon the defendant the duty of fencing its track. The statute provides as follows: "Any corporation 0pflfating a railway, that fails to fence the same against live-stuck running at large, at aU points where such right to fence exists, shall be liable to the OWller of :lny such stock injured or killed by reason of the want of such fence, or for the value of the property or damage caused, unless the same was o("casioned by the willful act of the owner or his agent; and in urder to recover, it shall only be necessary for the owner to prove the injury or destruction of his property. Ami if snch corporation neglect to pay the value of, or damage done to, any such stock, within thirty days after notice in writing. accolllpanieu by an altidavit of such injury or destruction, has been served, * * * snch owner shall be entitleLl to recover double the value of the stock killed or damages caused thereby," etc. CoLle of 1873, §
1289.
UNITED STATES V. SIX HUNDRED
OF IRON ORE.
137
This statute does not provide that every railway company shall fence its trac 1 It imposes no positive or imperative duty to do so. {, lt is a statute plainly intended to protect the owner of live-stock running at large, and this purpose is sought to be accomplished, not by imposing the dl1ty of fencing upon the railway companies, but by providing that if they shall fail to fence, they shall be liable to the owner of any stock killed or injured for the\vl1nt of a fence, unless occasioned by the willful act of the owner, and that in case such owner is not paid the amount of his d:1mages within 30 days from the time he shall give notice of his loss to the company, and prove the amount thereof by ailidavit, he may recover double damages. Under the statute the railway company is not bound to fence its road, but is subject to a certain liability if it fail to do so. If the company chooses to run the risk of leaving ItS road unfenced, and to assume the pecuniary lialJility imposed by the statute as a consequence of so doing, it has a right to do so. It cannot, therefore, be said tuat the statute imposed UpOll the company the absolute duty of fencing; and as negligence can only be imputed to the company in conseqllence of a failure to discharge a duty imposed by law, the defendant cannot be held liable upon the facts stated in the petition. The demurrer to the petition is uecuLuiugly sustu.ined. I am authorized to say that LOVE,
J., concurs in this opinion.
UNITED STATES V. SIX HUNDRED TONS
(District Court, D. New Jersey.) FonFETTunE Fon REPOItT-,\.CT JUNE OF hfPORTS-ExCEPTWXS TO
22, 1874, §§ 17 AND 18. Exceptions to the report of a United States comm'ssioner, to whom a case Ilas u,'en referred for summary bves' igation under the provisions of se2tions 17 and 18 of the act of cnng:ress of June 22,11:'74, to ascerlaln the amollut of freight due the owner3 of a Yes,el on importations fori eitel hy reason of undervaluation, shou d nolt he pa,sed upon hy 'he court, hut go with the report to the secretary of the treaslllT, and he con,idel'ell ,:,y him in makin;; up hIS jn1gment in the case; and an expressi,m of the eommi,sioner as to the law of the case should be striekeu trom the report as not coming withiu the refmence.
On Petition for Remission, etc. A. O. U. S. Atty., for the Uniterl S'ates. lIellry T. Win:l, for petitioners Hendel'sull anJ others. B. F. Lee, for petitioner Wells. NIXON, J. Six hundred tons of iron ate, imported into fhiR conntry from Spain by the steam-ship Italia, have lJeen forfeited fur Ulluerf
1 Sec
8. C. 9 FED. REP. 595.