IN Thorn v. Sweeney, recently decided by the Supreme Court of Nevada, the plaintiff applied for an injunction to prevent the defendant from running a ditch across his land, and the latter answered, alleging that the part of the plaintiff's land over which the ditch had been run was rocky, barren, and of no value; that the plaintiff had suffered no damage from its construction, and that the defendant was solvent and able to respond in damages, if any had been caused by his act. The injunction was refused. The foundation of the jurisdiction in a court of equity to issue an injunction in aid of the action of trespass, is the probability of irreparable injury, the inadequacy of pecuniary compensation, or the prevention of a multiplicity of suits where the rights are controverted by numerous persons. The plaintiff is not entitled to the injunction as a matter of right, because another threatens to continue his illegal acts. It must be shown that the property has some peculiar value that could not be compensated in damages. This fact is clearly pointed out in the opinion of the chancellor in Jerome v. Ross, 7 Johns, Ch. 334, a leading case upon this subject. "I do not know a case,' says the chancellor, "in which an injunction has been granted to restrain a trespasser, merely because he was a trespasser, without showing that the property itself was of peculiar value and could not well admit of due recompense, and would be destroyed by repeated acts of trespass. In ordinary cases, the damages to be assessed by a jury will be adequate for a check and for a recompense. Every man is undoubtedly entitled to be protected in the possession and enjoyment of his property, though it may be of no intrinsic value. He may have on his land a large mound of useless stone or sand, which he may not deem worth the expense of inclosing, and yet it would be a trespass for any person to remove any portion of the stone or sand without his consent; and he would be entitled to his action, even though the damages were nominal. But would it be proper for this court to assume cognizance of such a trespass and lay the interdict of an injunction upon it? I apprehend not." The doctrine announced in this case is fully supported by the following authorities: Wood V. Sutcliffe, 42 Eng. Ch. 165; Bassett v. Salisbury Manufacturing Company, 47 N. H. 437; Bigelow v. The Hartford

Br. Co. 14 Conn. 565; Wason v. Sanborn, 45 N. H. 170; Blake v. City of Brooklyn, 26 Barb. 301; Murray v. Knapp, 42 How. Pr. 462; Ib., 62 Barb. 566; Nicodemus v. Nicodemus, 41 Md. 537; Weigel v. Walsh, 45 Mo. 560; Herbert v. Carslake, 11 N. J. Eq. 241; Catching v. Terrell, 10 Ga. 578; Wooding v. Malone, 30 Ga. 980; High on Inj., §§ 459, 483; Eden on Inj. 231; 2 Story Eq. 925, 928. THE LIABILITY OF RAILROAD COMPANIES IN MISSOURI FOR KILLING STOCK. I. As there seems to be some confusion in the decisions of the Supreme Court of Missouri, touching the liability of railroad companies, both at common law and under the different sections of the statute, for killing or injuring stock, the object of this article is to draw the lines as clearly as possible between the different grounds of liability, that the subject may be better understood by the courts and those concerned in such practice

There are two statutes under which a railroad company may be liable for killing or injuring stock in consequence of failing to fence its road, viz: § 43, 1 W. S., 310, Laws 1877, p. 373, and § 5, 1 W. S. 520, and another (§ 38), under which it may be liable on account of failing to ring the bell or sound the whistle before crossing a road or street; and it may be liable at common law, for damages caused by its negligence. We shall first notice the circumstances under which the road should be fenced, and then point out the nature and extent of the company's liability under the different grounds above mentioned.

1. The road must be fenced.-§ 43, as amended in 1875 and in 1877 (L. 1877, p. 373) omits the word "prairie," and requires the road to be fenced on both sides where it passes through, along or adjoining, inclosed or cultivated fields, or uninclosed lands (timber as well as prairie lands), with necessary crossings and suitable cattle guards, etc., and until this is done the company is liable in double the amount of all damages which shall be done to animals on the road, or by reason of animals escaping from or coming upon said lands, fields, or inclosures, occasioned in either case by the failure to construct or maintain such fences or cattle guards. The fence should be built as soon as the company commences using the road. Comings v. H. & C. M. R. R. Co., 48 Mo. 512, and it must repair its fence

within a reasonable

gets out of repair.

time after it is burnt or The road must be fenced

that the injury happened at a point on the road where it was not fenced, and not at the

exists merely on paper, and has no streets which are or can be opened or used, ibid. Iba v. H. & St. Jo. R. R. Co., 45 Mo. 469. Or if the lines of the town corporation embrace portions of the adjacent country not laid out as a town, or laid out so that no streets can cross the railroad, the company shall fence its road. Ells v. Pacific R. R. Co., 48 Mo. 231; Lloyd v. Pacific R. R. Co., 49 Mo. 199. The comrany is not bound to fence at a station or depot which public convenience requires should be left open for the transaction of business and the reception and discharge of freight and passengers, but the fact that a switch is laid down along the main track does not relieve the company from fencing, if the grounds employed are not necessary for the transaction of business at the depot. Morris v. St. L., K. C. & N. R. R. Co., 58 Mo. 78; 49 Mo. 199; Swearingen v. M., K. & T. R. R. Co., 64 Mo. 73, 412.

3. When liable for single damages.—§ 5, 1 W. S. 520, provides that the owner of any animal killed or injured by the cars may recover the value thereof in an action against the company, without any proof of negligence, unskillfulness or misconduct on the part of the officers or agents of the company, when the injury occurs on any portion of the road not inclosed by a lawful fence, and not on the crossing of any public highway. To bring the case under this statute it should be alleged in the petition (or statement before the justice),

facts being proved, the law presumes negligence, or rather dispenses with it, and prima facie authorizes a recovery for the value of the animal killed, or for the actual damages sustained. Aubuchon v. St. L. & I. M. R. R. Co., 52 Mo. 522; 54 Mo. 228. It has been frequently held, however, that, in an action for killing stock, the statement of the cause of action may be very general, and to authorize a recovery the plaintiff must prove actual negligence, or that the injury occurred at a place where there was no fence or road-crossing, from which the law raises the inference of negligence. Brown v. H. & St. Jo. R. R. Co., 33 Mo. 309; Calvert v. H. & St. Jo. R. R., 34 Mo. 242, 235; Calvert v. II. & St. Jo. R. R. Co., 38 Mo. 467; Iba v. II. & St. Jo. R. R. Co., 45 Mo. 469.

Other cases seem to hold that where the plaintiff relies upon the statute, and not on actual negligence at common law, he must bring his case under the statute by his pleadings and evidence. Hausberger v. Pacific R. R. Co., 43 Mo. 196; 64 Mo. 542.

4. When liable for double damages. —When the action is founded on § 43, the petition or statement must allege the facts showing the defendant's liability, and in some way refer to the statute, either by stating the facts according to its requirements or by direct reference to it-with a demand for double damages, so that it may be known that the action is based on the particular statute. Walther v. Warner, 26 Mo. 143; Wood v. St. L., K. C. & N. R. R. Co., 58 Mo. 109; Meyer v. A. & P. R. R. Co., 64 Mo. 542; 43 Mo. 196; Kennayde v. Pacific R. R. Co., 45 Mo. 255.

In this case, as under § 5, it is not necessary to allege or prove negligence on the part of the company; but the use of the words "negligently," or other like epithets, will not make the suit a common law action, at the option of the plaintiff, when the averments of the petition or statement show that the action is founded on the statute. Cary v. St. L., K. C. & N. R. R. Co., 60 Mo. 209; Crutchfield v. St. L., K. C. & N. R. R. Co., 64 Mo. 255; 58 Mo. 109, 45. And some of these cases hold that the plaintiff can not recover under § 5 where the petition states a case under § 43. been held otherwise where the

But it has case is de

fectively stated, and the petition is not good under the statute, but is good at common law. Garner v. H. & St. Jo. R. R. Co., 34 Mo. 235. See 45 Mo. 469; 48 Mo. 512; 46 Mo. 368.

5. Evidence.-There is some confusion in the decided cases, as to the quantity or sufficiency of the evidence required to make out a case under § 43. In some cases, it is held that it must appear that the animal injured entered upon the road in consequence of the absence of fences, or cattle guards, which the company was bound to make and maintain, i. e., the damage must be "occasioned by the failure to construct or maintain such fences or cattle guards." Cecil v. Pacific R. R. Co. 47 Mo. 246; 54 Mo. 240; 60 Mo. 567; 45 Mo. 469. But in other decisions, the court has applied to this case the rule of evidence applicable to a case under § 5, and held that, "whenever it is shown that stock is killed on the track of the railroad at a point where it is the duty of a railroad company to fence the road, and not at a road crossing, and the company has failed to fence the road as required by law, a prima facie case is made for the plaintiff, and he is not required to show, by affirmative evidence, that the stock were caused to go on the track by the failure of the company to fence the road." Walther v. Pacific R. R. Co., 55 Mo. 271; 54 Mo. 228, 219. In the matter of pleading and evidence the two cases should be governed by different rules. Actual negligence is dispensed with in either case, but under § 5, when the injury is shown to have occurred where there was no fence or road crossing, the law assumes that it was occasioned by the want of a fence, and the plaintiff's right to recover, in the absence of rebutting testimony, results as a matter of law; while § 43 grants no presumption of law or fact as to whether the injury was occasioned by the absence of a fence or not. It simply declares the liability of the company in double the amount of damages to animals," occasioned by the failure to construct and maintain fences or cattle guards." The plaintiff can not recover unless the injury was occasioned by the failure to fence, and whether it was so occasioned or not, is a question of fact to be determined by the jury from the evidence in the

The statute allowing double damages is both compensatory and punitory; compensatory so far as it provides a remedy for the value of the loss actually sustained, and punitory in awarding as much more, simply as a penalty on the company for failure to comply with the statute. Seaton v. C. R. I. & P. R. R. Co. 55 Mo. 416; 53 Mo. 525. And, as said by Judge Napton: "So far as the law is to be regarded as punitive, it should be strictly construed, and so as not to enlarge the liability it imposes, nor allow a recovery unless the party seeking it brings his case strictly within the terms or conditions authorizing it. So far as it is compensatory for an injury done, it is to be construed as any other statute." Parish v. M., K. & T. R. R., 63 Mo. 284. If this construction be correct, and we think it is, the plaintiff must show that the animal injured came upon the road where there was no fence, and in consequence of that fact, thereby showing inferentially, at least, that the injury was occasioned by the failure to fence. Fickle v. St. L., K. C. & N. R. R. Co., 54 Mo. 219; 62 Mo. 562. This should be so ruled because § 5 of the damage act gives a complete remedy for the full value of any such injury, and proving the injury and the absence of a fence and road crossing makes a prima facie case.

It may be observed that it seems to be conceded that, if the animal is trespassing on the lands of a proprietor adjoining the road, and thence goes upon the road and is killed, the company is not liable. Ells v. Pacific R. R. Co., 55 Mo. 278. And the company is not liable for injury caused by fright. The ani mal must be struck by the cars, and the damages must arise from actual collision by the locomotive or cars with the animal injured. Lafferty v. H., & St. Jo. R. R. Co., 44 Mo. 291. Again, if the plaintiff's own negligence or want of proper care was the direct and proximate cause of the injury, or contributed directly toward it, he can not recover, notwithstanding the failure of the company to fence, etc.

6. Who should be plaintiff.—It has been contended that the suit to recover double damages under § 43, should be brought in the name of the State, but it has been uniformly held that the owner of the animal injured should be plaintiff. 53 Mo. 525; 54 Mo. 219; 55 Mo. 416; 57 Mo. 152. A plaintiff can not recover for injury to property belonging to his minor

son. Morris v. St. L., K. C. & N. R. R. Co., 58 Mo. 78; nor for property which does not belong to him. Brown v. St. Jo. R. R. Co.,

33 Mo. 309.

7. The verdict should be for single damages, and the court should give judgment for double the amount of the verdict. Norton v. H. & St. Jo. R. R. Co., 48 Mo. 387; 28 Mo. 147; 53 Mo. 525; 59 Mo. 112; 58 Mo. 109, 480. But as the statutes authorize a recovery of double damages, if the plaintiff can recover at all, the jury may return their verdict for the same, and judgment should be entered on the verdict. Seaton v. C. R. I. & P. R. R. Co. 55 Mo. 416; 63 Mo. 284; 58 Mo. 109.

(TO BE CONTINUED.)

H. S. K.

MOTION TO VACATE DECREE FOR COLLUSION-RIGHTS OF THIRD PARTIES.

COCHRANE ET AL. V. DEENER ET AL. Supreme Court of the United States, October Term, 1877.

ON MOTION of third parties to vacate decree, rendered in this case (reported 94 U. S. 780), on ground of collusion between parties to the cause; held, that there was failure to prove collusion, but that under the circumstances third parties interested in defeating the patents in question should have a rehearing when a new case came before the court.

The appellants brought an action in equity, in the Supreme Court of the District of Columbia, against the defendants, alleging infringement of what are known as the Cochrane flour patents, claimed to cover the process and mechanism of making "new process "flour. The court of the district dismissed the bill, and, on appeal, the Supreme Court of the United States, at Oct. term, 1876, reversed the decree, holding that the patents sued on were valid, and that defendents infringed (see decision reported in 94 U. S. P. 780). The appellants, organized as the American Middlings Purifier Company, immediately commenced suit against millers in different circuits, asking special injunctions on the basis of this decision. On the hearing of such application, the firm of J. A. Christian & Company, at Minneapolis, Minn., proprietors of the largest mill in the United States, were placed under bonds of $250,000, in lieu of an injunction. The decision of the court, denying a similar application, at St. Louis, last September, against the Atlantic Milling Company, is reported 5 Cent. L. J. 323.

A number of the millers, thus sued, filed a motion in the Supreme Court of the United States, at the present term, asking to have the decree in the Deener case vacated, on the ground of collusion between the parties in that court. An order to show cause was made, and the appellants filed an answer, denying any collusion, but admitted that

a contingent settlement was made, after the appeal, with one Herr, who had charge of the defense, by which, in event of the appellants' success in reversing the decree, the defendants were to pay the sum of $1,000, in full, for past damages, and a perpetual license for their two mills. An examiner was appointed to take testimony in support of and against the motion.

It appeared from the evidence so taken, that defendants, at the time suit was first instituted against them by the Cochrane party, were owners of patents claimed to cover the same invention, and had brought suits of their own against certain millers; but that, under advice of counsel and experts, these suits had been all abandoned before the contingent settlement was made. It also appeared that the case of the defense was very imperfectly prepared even in the lower court, and that after settlement Herr, the representative of defendants, exerted himself to conduct the case as inexpensively as was consistent with an appearance in court. The question of the identity of the original with the re-issue process patent, the most important feature of the case, was wholly omitted from the defense.

The consideration for the contingent settlement was the agreement by defendants to submit the case in the supreme court on printed briefs under the rule.

For the motion, George Harding and Frederick N. Judson.

Against the motion, Matt. H. Carpenter and Rodney Mason.

MR. JUSTICE BRADLEY delivered the opinion of the court.

After a careful examination of the evidence adduced on the motion to vacate the decree in this case, we see no ground to believe that the appellants are chargeable with any collusion with the appellees in reference to the argument of the appeal. On the contrary, the weight of the evidence is, that they repelled any arrangement or proposition which might look to that end. Whilst we would not hesitate to set aside a decree collusively obtained, the proof ought to be very clear to induce us to do this at the instance of strangers to the suit, though incidentally affected by the decision of the question involved.

At the same time, as the decision in this case is made the basis of applications for injunctions against third parties in the circuit court, it is right that we should say that, in the argument of the appeal before us, the case on the part of the appellees was, as it seemed to us, very imperfectly presented, and the evidence laid before us on this motion demonstrates the fact that the appellees, in consequence of the conditional arrangement with the appellants, which they secured before the argument was had, or for some other cause, omitted to prosecute their defense with that degree of zeal and efficiency which the importance of the case would otherwise have demanded. The result was that the labor of the court, and its liability to overlook points of weight and importance, were greatly increased. As the case was presented to us, 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 OF CAUSES.

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 has 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 Seighley 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, has, 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 Forman v. Blake, Chief Baron Richards said: "I have 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 mortgagor to be charged with the costs of more than one, giving the solicitor, who was the same in both suits, leave 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