This was an action by the appellant against the railroad company, to recover for stock killed%y the cars of the company at a point where the road was not fenced. Trial by the Court; finding and judgment for the defendant; a.motion for a new trial being overruled.
It appeared sufficiently that the cattle were killed by the cars of the company, and that the road was not fenced; hut the ground of the defence was that the road, at the time the cattle were killed, was being run and operated, not by the company or her servants, hut by a receiver appointed by the Circuit Court of the United States for the District of Indiana.
This defence was held to be invalid in the case of the same Company v. Fitch, 20 Ind. 498. There an answer had been filed setting up the appointment of a receiver, &c., and it was held that the answer was had in not showing sufficiently the appointment of the receiver, and in not filing a copy of the appointment; hut the Court say: “Aside from this objection, we do not think the existence of the receiver, conceding him to have possessed the powers usually given to a receiver in chancery, relieved the corporation from liability to suit. The corporation still existed, was the owner of the road, and the law made the corporation liable for stock killed under certain circumstances. The receiver operates the road subject to that liability.”
The doctrine contended for by the appellee, “that the ser
There being no exception in the statute in favor of corporations whose roads happen to be placed in the hands of a receiver, we see no ground on which such exception could be properly interpolated into it.
But the 4th section of the act of March, 1863, (1 G-. & H. sup. 187,). which act is set out at large in the case above cited from 20th Ind., provides in express terms that such action may be brought against the railroad, whether the same was being run by the company, or by a lessee,' assignee, receiver,
The judgment below is reversed, with •costs, and the cause remanded for a new trial.