This statute does not provide that every railway company shall fence its track. It imposes no positive or imperative duty to do so. It 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 duty 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 want 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 damages within 30 days from the time he shall give notice of his loss to the company, and prove the amount thereof by affidavit, 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 liability imposed by the statute as a consequence of so doing, it has a right to do so. It cannot, therefore, be said that the statute imposed upon the company the absolute duty of fencing; and as negligence can only be imputed to the company in consequence of a failure to discharge a duty imposed by law, the defendant cannot be held liable úpon the facts stated in the petition. The demurrer to the petition is accordingly sustained. I am authorized to say that LovE, J., concurs in this opinion. UNITED STATES v. SIX HUNDRED TONS OF IRON ORE, etc.1 (District Court, D. New Jersey.) FORFEITURE FOR UNDERVALUATION OF IMPORTS-EXCEPTIONS TO COMMISSIONER'S REPORT-ACT JUNE 22, 1874, §§ 17 AND 18. Exceptions to the report of a United States commissioner, to whom a case has been referred for summary investigation under the provisions of sections 17 and 18 of the act of congress of June 22, 1874, to ascertain the amount of freight due the owners of a vessel on importations forfeited by reason of undervaluation, should not be passed upon by the court, but go with the report to the secretary of the treasury, and be considered by him in making up his judgment in the case; and an expression of the commissioner as to the law of the case should be stricken from the report as not coming within the reference. On Petition for Remission, etc. A. O. Keasbey, U. S. Atty., for the United States. Henry T. Wing, for petitioners Henderson and others. B. F. Lee, for petitioner Wells. NIXON, J. Six hundred tons of iron ore, imported into this country from Spain by the steam-ship Italia, have been forfeited for under 1 See S. C. 9 FED. REP. 595, 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 violations of the revenue 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 COMMISSIONER OF THE PORT OF NEW YORK. (Circuit Court, S. D. New York. June 8, 1883.) SHIPPING COMMISSIONER OF PORT OF NEW YORK-SALARIES OF DEPUTIESREFERENCE TO MASTER. While, on the facts before the court, it cannot assume that the salaries of $3,648, paid by the shipping commissioner of the port of New York to his three sons, whom he has appointed as his deputies, are excessive and should not be allowed, it is ordered that the accounts be referred to the master to take proof and report explicity upon the reasonableness of the salaries paid by the shipping commissioner to his deputies, upon notice to the United States attorney, and with leave to the United States attorney to introduce testimony. Objections to Master's Report. H. E. Duncan, on part of shipping commissioner. WALLACE, J. Upon the presentation of the report of the master, to whom it was referred to examine the annual account of Mr. IN RE ACCOUNTS OF THE SHIPPING COM'R OF THE PORT OF N. Y. 139 Duncan as shipping commissioner, and report to the court, the United States attorney appeared, and objected that the salaries paid. by the shipping commissioner to the clerks in his office, and included in such account, are excessive. The objection is particularly addressed to the salaries paid by the shipping commissioner to his three sons, each of whom is a "deputy commissioner," by the appointment of his father, and each of whom was paid for the year 1882 the sum of $3,648. In view of the testimony of Mr. Duncan before the master as to the nature of the duties which are discharged by these deputies, and the compensation which they fairly earn, the court, in the absence of any controverting testimony, cannot assume that the salaries paid are exorbitant. The objection now made has been urged on former occasions, when the accounts of the shipping commissioner were presented to this court for approval, and has been overruled by each of my predecessors,-Judges WOODRUFF, JOHNSON and BLATCHFORD, each of whom has sanctioned the payment of larger salaries to these same deputies for the same services than were paid to them respectively in 1882. In re Account of Shipp'g Com'r, 16 Blatchf. 92. Nevertheless, the objection has been uniformly made by the United States attorney when these accounts have been presented; not perfunctorily, but because he has deemed it his duty to urge it in the proper discharge of a responsibility imposed upon him by the court under its order made in 1876. While it is not just to indulge a presumption against the honesty and propriety of the action of the shipping commissioner merely because these salaries are paid to his sons, who were made deputies by his own appointment, still, the shipping commissioner must concede himself that the circumstance that these salaries are adjusted upon a flexible scale, which increases or decreases them so that, in connection with the other expenses of the office, they always absorb the entire receipts, is well calculated to excite unfavorable criticism. It is not strange, therefore, notwithstanding the action of this court on former occasions, that the propriety of paying these salaries should be questioned again. I think it is due to the court whose officer Mr. Duncan is, to the United States attorney, and to Mr. Duncan himself, that there should be a thorough investigation of the whole matter, in order that if any abuses exist they may be effectually suppressed, and if none are found to exist that the shipping commissioner may be exonerated henceforth from unjust suspicions. It is ordered that the accounts be referred back to the master to take proof and report explicitly upon the reasonableness of the salaries paid by the shipping commissioner to his deputies, upon notice to the United States attorney, and with leave to the United States attorney to introduce testimony. GREENWALD and others v. APPELL. (Circuit Court, D. Colorado. June 23, 1883.) 1. STATUTES OF LIMITATIONS. Statutes of limitations are statutes of repose, and are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time if he has the power to sue. Such reasonable time is, therefore, defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the court has been taken away, and in such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have. 2. SAME-BANKRUPTCY-DELAY IN APPLYING FOR DISCHARGE. Proceedings in bankruptcy amount to an injunction against any proceedings against the bankrupt to enforce his contracts in the courts, but if he delays for an unreasonable time to apply for his discharge, the right of action against him upon his contracts or debts, which was suspended by the commencement of proceedings in bankruptcy, revives, and during the time that the right of action was suspended by the bankruptcy proceedings the statute of limitations will not run in his favor. MCCRARY, J., (orally.) This is an action at law upon certain promissory notes, and also, I believe, upon an open account. There is a demurrer to the complaint, which raises the question whether the action is barred by the statute of limitations of this state. The defendant, Appell, was adjudicated bankrupt in the state of Pennsylvania some years ago, and the proceedings in bankruptcy were continued for some years, and are probably still pending; but Appell has never been discharged. The theory of this suit is that, having delayed for an unreasonable time to apply for his discharge, the right of action against him upon these debts, which was suspended by the commencement of proceedings in bankruptcy, has revived; and the question here is whether, during the time that the right of action was suspended by the bankruptcy proceedings, the statute of limitations of the state of Colorado continued to run in favor of the bankrupt; or, in other words, does the bankruptcy of the debtor suspend the running of the statute of limitations in his favor? That it suspends the right to sue, by the very terms of the bankrupt act, is not disputed. After the commencement of proceedings in bankruptcy against the debtor, and after an adjudication in bankruptcy, no suit can be brought against him in any court; certainly, not without the consent of the bankruptcy court. It amounts, in other words, to an injunction against any proceedings against the bankrupt to enforce his contracts in the courts of the country. If he is not discharged, then the action revives after the proceedings in bankruptcy are ended. The old rule upon this subject was very strict, and many authorities have been cited which clearly hold that if the statute of limitations begins to run, nothing will stop its running except something that is expressly provided in the statute itself; and it was formerly held that even a state of war was not sufficient; that an injunction against the creditor from bringing a suit was not sufficient to suspend the statute, and that it continued to run notwithstanding these things. That rule will be found laid down in Angell & Ames on Limitations, and I think in some other standard authorities. But the more modern rule is otherwise. It has been settled now, by the decisions of the supreme court of the United States, that there are certain exceptions to the statute of limitations other than those which are expressed in the statutes themselves. The old rule has been. qualified by later and better rulings, especially in the supreme court of the United States. These later decisions hold that an exception may be allowed where a party is prevented by some superior law or public calamity, such as war, from bringing the suit. The cases growing out of the late rebellion are illustrations of this doctrine. Although none of the statutes of limitations had any exception which applied to the case of a debtor who was within the lines of the rebellion, and therefore beyond the reach of civil process, so he could not be sued, the supreme court, in a series of cases, laid down the doctrine that that was an exception which was created by the necessities of the case. And this exception has been established by the case of Bailey v. Glover, 21 Wall. 342. That is a case which arose under the bankrupt act of 1867, which has a limitation clause embodied in its second section. That clause provides that no suit at law or in equity shall in any case be maintained, etc., "unless the same shall be brought within two years from the time the cause of action accrued." That is as broad, as sweeping, and comprehensive as any statute of limitations can be made. It applies to suits both in law and in equity; it applies to all classes of suits, and declares that no suit shall be maintained unless it be brought within two years. The question arose whether, under that statute, courts would create an exception in the case of concealed fraud. In an elaborate opinion by Mr. Justice MILLER, the supreme court laid down the rule that this was an exception, notwithstanding the clear and comprehensive terms of the statute itself. The ground upon which these later rulings proceeds is well stated in a sentence which I will read from the case of U. S. v. Wiley, 11 Wall. 513: "Statutes of limitations are indeed statutes of repose. They are enacted. upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time if he has the power to sue. Such reasonable time is, therefore, defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the courts has been taken away. In such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have." I think this case falls within that doctrine. The right to sue was undoubtedly suspended during the pendency of proceedings in bankruptcy, and to say that the statute continued to run, would be to say |