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.
138
I FEDERAL REPORTER.
'valuation. Since the forfeiture, Thomas Henderson and others, owners of the steamer, have presented a petition to me, pursuant to the provisions of sections 17 and 18 of the act of June 22, 1874, praying .for an allowance of freight from the proceeds of the sale, and one Joseph Wells has also petitioned to be reimbursed for certain advances of money made by him on the purchase of the property without knowledge of the vinlations of the re,enue laws by the importer. Under the provisions of the eighteenth section I directed the summary investigation, provided for by the act, to be made by William Muirheid, Esq., one of the United States commissioners for the district, ordering him to state and annex to the petition the facts appearing from the evidence, together with a certified copy of the evidence, in order that the same might be transmitted to the honorable secretary of the treasury for adjudication. The commissioner has made his report, finding the facts which he was ordered to do, and also finding the law, which was not within the reference. The counsel for the petitioners, Henderson and others, have filed exceptions to the report of the commissioner, and asking that numerous changes should be made by the judge. I think the fair construction of the act is that ;these exceptions should go with the report to the secretary of the treasury, and should be considered by him in making up his judgment in the case. I have accordingly declined to pass upon them. I should direct all expressions of opinion by the commissioner, as to the law of the case, to be stricken from the report, as not coming within the reference, if I supposed they would tend to prejudice the judgment of the secretary of the treasury.
In re
ACCOUNTS OF THE SHIPPING CO:lDlISSIONER OF THE PORT OF NEW YORK.
(Circuit Court, S. D. New York. HEFEHENCE TO
June 8, 1883.)
OF PORT OF NEW YORK- S.U,ARlES OF DEPUTIES-
'Vhile, on the facts beforc the court, it cannot as,llme that the salaries of $3,648, paidl1y the shipping commis,ioller of the port of New York to his three sons, whom he has appointed as his deputies, are excessh-e and should not be allowed, it is orderl'd that the accounts be refelTed to the master to take proof and report explicit'-Ilpon the reasonableness of thc sabries paid hy the shipping commissioner to 'his deputies, upon notice to the Unitc,l States attorney, and with leave to thc United States attorney to introduce te,stimony.
Objections to Master's Report. .' ". H. E. ,Duncan; on part of shipping commissioner. Elihn Root, U. S. Atty., COI/tret. " WALLACE, J; , Upon the presentation of the report of the master, to whom it was referred to examine theaunual account of Mr.