them are numerous. The rules, as we shall give them below, relate not only to the cases where new duties are imposed, but also to those where a new remedy is given for the breach of a pre-existing duty, and they are brought together because the cases that illustrate one rule will often throw light upon the others also. I. Where a remedy existed at the common law, and a new remedy is given by statute, and there are no negative words in the statute indicating that the new remedy is to be exclusive, the presumption is it was meant to be cumulative, and the party injured may pursue at his option either the common law remedy, or the remedy given by the statute.' For example, the common law gives to one whose property is seized on an attachment sued out maliciously and without probable cause an action on the case for the injury, and it has often been held that a statute requiring the attachment creditor to give bond to pay all damages suffered by the suing out of his writ, provided for a cumulative remedy only, and the remedy at the common law might still be resorted to.' So a statute giving a summary remedy for the assessment of damages done by trespassing cattle is cumu- [*652] lative. So the statute authorizing highway commissioners to order the removal of fences encroaching upon highways does not take away the common law remedy by abatement. So the statutory authority to forfeit stock in corporations for nonpayment of calls lawfully made upon the subscriptions thereto does not take away the remedy by suit upon the promise to pay 'Farmer's Turnpike Road ». Coventry, 10 Johns. 389; Crittenden v. Wilson, 5 Cow. 165; Livingston v. Van Ingen, 9 Johns. 507; Renwick . Morris, 7 Hill, 575; Tremain v. Richardson, 68 N. Y. 617; Ward v. Severance, 7 Cal. 126; Gooch v. Stevenson, 13 Me. 371; Hayes v. Porter, 22 Me. 371; Cumberland, &c., Corp. v. Hitchings, 59 Me. 206; Washington, &c., Road v. State, 19 Md. 239; Candee v. Hayward, 37 N. Y.653; Lane v. Salter, 51 N. Y. 1; Mayor, &c., of Lichfield . Simpson, 8 Q. B. 65; Williams v. Golding, L. R. 1 C, P. 69. See Gibbes v. Town Council, 20 S. C. 213; Jarrett v. Apple, 31 Kan. 693. 2 Lawrence o. Hagerman, 56 Ill. 68; Spaids v. Barrett, 57 Ill. 289; Donnell v. Jones, 13 Ala. 490; Sanders v. Hughes, 2 Brevard, 495; Smith v. Eakin, 2 Sneed, 456; Smith v. Story, 4 Humph. 169; Pettit v. Mercer, 8 B. Mon. 51; Sledge v. McLaren, 29 Geo. 64. See Booker's Exrs. v. McRoberts, 1 Call, 213; Washington &c., Co. v. State, 19 Md. 239. Colden . Eldred, 15 Johns. 220; Stafford v. Ingersoll, 3 Hill, 38; Moore v. White, 45 Mo. 206. Wetmore v. Tracy, 14 Wend. 250. See, for the same principle, Renwick v. Morris, 7 Hill, 575. contained in the subscription.' So if a highway surveyor obstructs the passage from one's dwelling to the road by cutting a ditch along the side of the road, it is no answer to a common law action against him that a statute in such case gives a remedy against the town.' Neither is it an answer to an action against a ferry keeper for an injury occasioned by his negligence that under the statute he has been compelled to give bond, on which an action will lie for the same injury.' II. But the common law remedy may be excluded by implication as well as by express negative words; and where that which constitutes the actionable wrong is permitted on public grounds, but on condition that compensation be made, and the statute provides an adequate remedy, whereby the party injured may obtain redress, the inference that this was intended to be the sole remedy must generally be conclusive. It has been so held in many cases where land or other property has been taken for public use under the eminent domain." 1 Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; Small v. Herkimer Manuf. Co., 2 N. Y. 330; Nor. R. R. Co. v. Miller, 10 Barb. 260; Troy, &c. R. R. Co. v. Tibbits, 18 Barb. 297; Carson v. Mining Co., 5 Mich. 288; Inglis v. Great Nor. R. Co. 1 Macq. H. L. Cas. 112; Great Nor. R. Co. v. Kennedy, 4 Exch. 417; Giles v. Hutt, 3 Exch. 18. 2 Adams o. Richardson, 43 N. H.212. 3 Wells v. Steele, 31 Ark. 219. Making the supervisor of roads liable for defects in the highways does not relieve the county commissioners who were liable before. County Commissioners v. Gibson, 36 Md. 229. Fuller. Edings, 11 Rich. 239; Conwell v. Hagerstown Canal Co., 2 Ind. 588; Crawfordsville, &c., R. R. Co. v. Wright, 5 Ind. 252; People v. Mich. Sou. R. R. Co., 3 Mich. 496; Smith v. McAdam, 3 Mich. 506; McCormick v. Terre Haute, &c., R. R. Co., 9 Ind. 283; Sudbury Meadows o. Middlesex Canal Co., 23 Pick. 36; Stevens v. Middlesex, 12 Mass. 466; Soulard v. St. Louis, 36 Mo. 546; Baker v. Hannibal, &c., R. R. Co., 36 Mo. 543; Calking v. Baldwin, 4 Wend. 667; McKinney v. Monon. Nav. Co., 14 Penn. St. 65; Cole v. Muscatine, 14 Iowa, 296; Stowell v. Flagg, 11 Mass. 364; Dodge v. Commissioners, &c., 3 Met. 380; Null . Whitewater, &c., Co., 4 Ind. 431; Kimble v. Whitewater, &c., Co., 1 Ind. 285; Lebanon v. Olcott, 1 N. H. 339; Troy v. Cheshire R. R. Co., 23 N. H. 83; Henniker v. Contoocook Valley R. R. Co., 29 N. H. 146; Renwick v. Morris, 7 Hill, 575; Babb v. Mackey, 10 Wis. 371. In some cases it has been held that the common law remedy still remained and might be resorted to; as where a water course was diverted by statutory authority. Proprietors, &c., v. Frye, 5 Me. 38. Contra, Calking ©. Baldwin, 4 Wend. 667; McKinney . Monon. Nav. Co., 14 Penn. St. 65. And where land and buildings were injured by flooding, or by the percola tion of water, caused by the enlargement of a canal under statutory authority. Selden v. Canal Co., 24 Barb. 362. Contra, Stowell . Flagg, 11 • *III. Where the statute imposes a new duty, where [*653] none existed before, and gives a specific remedy for its violation, the presumption is that this remedy was meant to be exclusive, and the party complaining of a breach is confined to it.' It is upon this ground that it has been many times held that when the right to exact tolls has been conferred upon a corporation, and a summary remedy given for their collection, the corporation must find in this summary remedy its sole redress when an attempt is made to evade payment. So if performance of the duty is enjoined under penalty, the recovery of this penalty is in general the sole remedy, even when it is not made payable to the party injured.' But the rule is not without its Mass. 864; Hazen v. Essex Co., 12 Cush. 475. If a privilege is given by statute which is exceeded, the statutory remedy will not exclude a suit for the excess. Renwick v. Morris, 7 Hill, 575. 1 Almy v. Harris, 5 Johns. 175; Edwards v. Davis, 16 Johns. 281; Smith . Lockwood, 13 Barb. 209; Dudley v. Mahew, 3 N. Y. 9; Thurston v. Prentiss, 1 Mich.193; Reddick v. Governor, 1 Mo. 147; Lang v. Scott, 1 Blackf. 405; Johnston v. Louisville, 11 Bush, 527; Smith v. Drew, 5 Mass. 514; Green . Bailey, 3 N. H. 33; Com'rs v. Bank, 32 Ohio St. 194; Beckford v. Hood, 7 T. R. 620; Doe v. Bridges, 1 B. &. Ad. 847; Vestry of St, Pancras v. Battenbury, 2 C. B. (N s.) 477; Stevens v. Jeacocke, 11 Q B. 731; Marshall. Nicholls, 18 Q. B. 882. See Vallance v. Falle, L. R., 13 Q. B. D. 109. Where under a statute as to fire escapes a public remedy is given and also a remedy by injunction, available by individuals, an action on the case after an injury based on noncompliance with the statute will not lie. Grant . Slater, &c., Co., 14 R. L. 380. 2 Turnpike Co. v. Martin, 12 Penn. St. 361; Beeler . Turnpike Co., 14 Penn. St. 162; Kidder v. Boom Co., 24 Penn. St. 193; Turnpike Co. v. Van Dusen, 10 Vt. 197; Russell v. Turnpike Co., 13 Bush. 307. This is the rule generally applied in the case of taxes; if the statute imposing them prescribes a remedy, no other can be implied. See cases collected in Cooley on Taxation, 13. But if the statute gives a corporation the right to "demand and recover" tolls for the passage of logs, and to detain the logs until the tolls are paid, this, by implication, authorizes suits. Bear Camp River Co. v. Woodman, 2 Me. 404. Turnpike Co. v. Brown, 2 Penn. & Watts, 462; Almy v. Harris, 5 Jolins, 175. Failure to remove snow as required by ordinance is a breach of duty to the public from which an individual action does not arise. Flynn v. Canton Co., 40 Md. 312; Kirby v. Market Ass'n., 14 Gray, 249; Taylor v. Lake Shore, &c., Co., 45 Mich. 74; Moore v. Gadsden, 93 N. Y. 12; Hartford v. Talcott, 48 Conn. 525; Heeney v. Sprague, 11 R. I. 456. Compare Collinson v. Newcastle, &c., R. Co., 1 C. & K. 545. So allowing unmuz. zled dog to run at large. State v. Donohue, 10 Atl. Rep. 150 (N. J.). So violation of police regulation as to licensing steam engines. Burbank . Bethel, &c., Co., 75 Me. 373. In Phila., &c., Co. v. Ervin, 89 Penn. [*654] exceptions; for if a plain duty is *imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected.' And if the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the State or to an informer, the right of an individual injured to maintain an action on the case for a breach of the duty owing to him will be unquestion-able. There are always questions of difficulty respecting the remedy when a statute imposes a duty as a regulation of police, without in terms pointing out what shall be the rights on the one side and the liabilities on the other, if the duty is neglected. Is the duty imposed on public grounds exclusively, and if not, what persons or classes of persons are within its intended protection? These are the problems which such statutes usually present. Some idea of the difficulties attending their construction may be had from a brief consideration of one class of them. Statutes for Fencing Railroads. St. 71; Phila., &c., Co., v. Boyer, 97 Penn. St. 91, and Heeney v. Sprague, 11 R. I. 456, it is held that an ordinance cannot create a civil duty enforceable in a common law action. Contra, Penn., &c., Co. v. Hensil, 70 Ind. 569. In Cook . Johnston, 58 Mich. 437, where ashes kept in a wooden barrel contrary to an ordinance caused a fire, it is held that primarily the object of ordinances is public and that whether in a given case the damaging act, contrary to an ordinance, is negligent is a question of fact. So the violation of an ordinance as to leaving horses unhitched in the street is held evidence of negligence. Siemers . Eisen, 54 Cal. 418; but not necessarily negligent. Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488. But where such an ordinance appears intended for the bene At the common law, rail fit of individuals using the street, the breach of it is a ground of action. Bott v. Pratt, 33 Minn. 323, and cases cited. Salem Turnpike, &c., Co. e. Hayes, 5 Cush. 458. See Aldrich e. Howard, 7 R. I. 199; Ryan v. Gallatin Co., 14 Ill. 78; Dunlap v. Gallatin Co., 15 II. 7; Johnston . Louisville, 11 Bush, 527; Curry v. Chicago, &c., R. R. Co., 43 Wis. 665. See, also, Shepherd . Hills, 11 Exch. 55; Mayor of Litchfield v. Simpson, 8 Q. B. 65. This rule applied to a statute for the protection of elevator shafts. Parker . Barnard, 135 Mass. 116, and to one for the furnishing of fire escapes in tenement houses by the owner, where no penalty was imposed till after he had been notified by the authorities. Willy. Mulledy, 78 N. Y. 310. road companies, as owners of the land over which their tracks run, are under no obligation to fence them in order to protect their tracks against cattle straying upon them, and it is the duty of the owners of cattle to prevent their thus straying.' If the owners *fail in this duty, they would not only be [*655] without remedy for any injury their cattle might receive while trespassing on the track, but they might even be liable themselves if cars or engines were injured by the cattle being encountered, provided the owners were negligent in suffering them to stray there.' It is now very generally required by statute that railroad companies shall fence their tracks. The statutes differ greatly in their provisions, and in the remedies they prescribe for a breach of the duty. It is conceded that one of the chief purposes of such statutes is to protect the lives and limbs of the traveling public, who, as they pass over railroads, are exposed to great and constant hazards when cattle are not effectually excluded from the tracks. But another purpose is to protect the cattle theinselves, and this is commonly done by making railroad companies 1 Manchester, &c., R. v. Wallis, 14 C. B. 213; S. C. 25 E. L. & Eq. 373; Tonawanda R. R. Co. v. Munger, 5 Denio, 255; S. C. 4 N. Y. 349; Williams v. Mich. Cent. R. R. Co., 2 Mich. 259; Vandergrift v. Rediker, 22 N. J. 185; Price v. N. J. R. R. Co., 31 N. J. 229; Brown v. Hannibal, &c., R. R. Co., 33 Mo. 309; Richmond v. Railroad Co., 18 Cal. 351; Railroad Co. v. Skinner, 19 Penn. St. 298; Nor. Penn. R. R. Co. v. Rehman, 49 Penn. St. 101; Vandergrift v. Delaware, &c., R. R. Co., 2 Houst. 287; Louisville, &c., R. R. Co. v. Ballard, 2 Met. (Ky.) 177; Hurd v. Rutland, &c., R. R. Co., 25 Vt. 116. Compare Jackson v. Rutland, &c., R. R. Co., 25 Vt. 150; Housatonic R. R. Co. v. Knowles, 30 Conn. 313; Locke v. First Div., &c., R. R. Co., 15 Minn. 350; Fritz v. First Div., &c., R. R. Co., 22 Minn. 404; Towns v. Cheshire R. R. Co., 21 N. H. 363; Michigan, &c., R R. Co. v. Fisher, 27 Ind. 96; Nor. East. R. R. Co. v. Sineath, 8 Rich. 185. 2 Railroad Co. v. Skinner, 19 Penn. St. 298; Williams v. New Albany, &c., R. R. Co., 5 Ind. 111. The question in such a case will of course be one of negligence. If cattle are straying upon a railroad track they must not be willfully or recklessly run over; if they are, the company may be responsible. See Laws o. Nor. Car. R. R. Co., 7 Jones, (N. C.) 468; Hurd v. Rutland, &c., R. R. Co., 25 Vt. 116; Holden . Same, 30 Vt. 297; New Orleans, &c., R. R. Co. . Field, 46 Miss. 573; Fritz o. First Div., &c., R. R. Co., 22 Minn. 404; Trout. Virginia, &c., R. R. Co., 23 Grat. 619; Baltimore, &c., R. R. Co. v. Mulligan, 45 Md. 486; Darling o. Boston, &c., R. R.Co., 121 Mass. 118. Rockford, &c., R. R. Co., v. Rafferty, 73 Ill. 58. |