author: Graves, J.

text:
    The Bay City and East Saginaw Railroad Company v. David M. Austin.

      Railroad companies; And their agents: Liability for neglect to maintain fences: Presumption from defective condition. A railroad corporation operating the road of another corporation under a contract is an agent of the latter company within the meaning of § 48 of the general railroad act {Comp. Laws, § 1987); and the neglect by such agent of the duty to erect or maintain fences along the line of the road, enjoined by the statute, will render the corporation owning the road liable for all consequent damages. The object of the amendment to this section by the lav/ of 186T (Laws of 1867, p. 881) was to give to the injured party a right of action, at his election, against either the principal or the agent for such damages. •
    It being the duty of the railroad company to erect and maintain the fence, if it be insufficient or out of repair, in the absence of any proof showing an extraordinary cause for such condition, the company will be liable for the consequences resulting to the property of any person having an interest in the maintenance of the fence, and not shown to be in fault for such'defective condition.

      Rouble damages; Construction of statutes: Vested rights. A statute which authorizes a judgment to he entered for double the damages found by the jury, is in the nature of a penal statute, the repeal of which before judgment, though after verdict, will defeat the right to such recovery, — no personal equity to such right, underlying the law or arising upon it, appearing.

      Heard July 11.

      Decided October 6.

    Error to Saginaw Circuit.

      This was an action on the case brought by David M. Austin in the Circuit Court for the County of Saginaw, agaiust the Bay City & East Saginaw Railroad Company. The plaintiff set forth in his declaration the corporate character of the defendant; the location of its road, its duty under the statute to erect and maintain fences along the sides of its road, and the neglect of this duty, in consequence of which, a horse of the plaintiff’s, straying upon the road, was killed. The defendant pleaded the general issue. On the trial it appeared that the road whore the injury occurred was in the possession of, and operated by, a corporation created under the laws of the State of Michigan, known as the Flint & Pere Marquette Railway Company, under a contract with the defendant. Under the charge of the Court the jury found a verdict for the plaintiff for $212.04; on which, on plaintiff’s motion, a judgment was entered in double the amount; which judgment comes into this Court by writ of error. The questions for review are sufficiently stated in the—
    Assignment oe Errors. 1st. The Court erred in refusing to charge the jury as requested, “that if the jury find that the track of the defendant was at the time of the accident operated by the Flint & Pere Marquette Railway Company, and that the horse was killed by the engine of the Flint So Pere Marquette Railway Company, which was the only company at that time operating. trains on the defendant’s track, then the defendant is not liable in this action.”
    2d. The Court erred in charging the jury, in lieu of the charge requested as stated in the foregoing assignment, as follows: “I decline to give the jury this instruction, for the reason that if the jury find that the Flint So Pere Marquette Railway Company were operating it, although it may be exclusively their occupancy under the contract that has been read, it was operated within the sense of this statute by the Flint & Pere Marquette Railway Company as the agent of the defendant.”
    3d. The Court erred in refusing to charge the jury as requested, that “the bars having been put in for the accommodation of the farm crossing, it was the duty of thd person in charge of the farm to keep the bars up, and if they were out of repair, it was his duty to call the attention of the defendant, or its servants or officers, to that fact, and if he failed to keep up such bars or to give such notice, he was guilty of negligence which will defeat a recovery for damages resulting therefrom.”
    4th. The Court erred in ■ charging the jury in response to the request mentioned in the previous assignment, as follows: “That request I cannot comply with. It seems to devolve upon the person in charge of the farm to exercise a supervision which is a part of the duty of keeping a fence in repair. It supposes that the person in charge of the farm, if he found the bars down, must put them up; that duty devolves on the defendant. But if the plaintiff should let the bars down himself, it would be his duty to put them up as well as they were before he let them down, and if the defect in the fence or in the bars arose from ill usage by the plaintiff or by McKay (who had charge of plaintiffs horse), and the defect did not come to the knowledge of the defendant, the plaintiff cannot recover. If a defect arose after the bars were originally made, otherwise than by ill usage from the plaintiff or from McKay, it would not be the duty of McKay or the person in charge of the farm to give any notice about it; the defendant was bound to take notice if the fence got out of repair on account of ordinary wear or the ordinary effect of the elements; it was the duty of the defendant to take notice of it.”

      5th. The Court erred iu refusing to charge the jury as requested that “if the person in charge of the farm was not satisfied with the sufficiency of the fence, it was his duty to notify the defendant thereof; and if the parties could not agree, to have the question settled by the fence-viewers, as provided by law in case of partition fences.”
    6th. The Court erred in refusing to charge the jury as' requested, that “if the jury find that the defendant has never run trains on its road, has never had engine nor cars thereon, then the plaintiff cannot recbrer in this action.”
    7th. The Court erred in refusing'to charge the jury as requested, that “the duty to erect and maintain fences along railroad tracks is imposed upon the person or corporation occupying or using the track, and if the defendant had parted with the use and occupancy of its track to other persons or to any other corporation so as to give such other person or corporation an exclusive right to use' and control the track for a definite time, then the duty to erect and maintain fences devolves upon the party occupying the track, and no recovery can be had against the defendant.”
    8th. The Court erred in charging the jury relative to the request mentioned in the seventh assignment as follows : “ I can give you all that instruction except the last proposition, ‘that no recovery can be had against the defendant.’ I decline that part of it. So long as the defendant remains the owner and the road is being operated by persons who stand in the relation of agent to the defendant, it is liable for all damages arising from neglect to erect and maintain fences.”
    9th. The Court erred in refusing to charge the jury as requested that “ the duty to erect and maintain fences does not devolve on two corporations at the same time, when only one is in the exclusive charge and control of the track and roadway, and the plaintiff cannot recover except ■against the corporation which is in possession and using the track.”
    10th. The Court erred in giving judgment for double the damages assessed by the jury, there being then no law in force authorizing such judgment.”

      W. L. Webber, for plaintiff in error.
    I. The 1st, 2d, 6th, 7th, 8th, and 9th assignments relate substantially to the same question, and will be •considered together.
    The defendant below was organized as a corporation and commenced the construction of its road. Before any iron was laid the possession of the line passed to the Flint Fere Marquette Bail way Company, to the entire exclusion of the defendant below. The F. & P. M. B’y Co. constructed the road, and was the only company which had run its cars on the track. The employees were all in ■employ of the last-named company. The F. & P. M. Co. was not the agent of the B. O. & E. S. B. B. Co. in any sense. Unless the term “agent” is to be changed in its definition so as to be used in an entirely new sense, it is a misnomer to speak of the F. & P. M. B’y Co. as the agent of the B. O. & B. S. B. E. Co. The original section 43 of the general railroad act provides that “every railroad corporation formed under this act shall erect and maintain fences, * * * * and until such fences * * shall be ■duly made, the corporation and its agents shall be liable,” etc. As amended in 1867, p. 221, it shows that it was the intention to confine the liability to the single corporation or person, who was the one on whom the liability rested to erect and maintain the fence, and that it was not contemplated to hold more than one party liable at one time.
    The horse in the case at bar was killed by the engine of the 3?. & P. M. R’y Co., run by its agents, and not by the agents, engines, or cars of the defendant below.
    II. As to the 3d and 4th assignments: The farm where these bars were was in the possession of McKay, with whom Austin was pasturing his horse. The railroad company had no charge of the farm and had no use for the bars. No one had a right to pass through the bars except by consent of the person in charge of the farm.
    Now, what is the object of the statute requiring fences along railroad tracks? For the protection of the lives of passengers, clearly. Every one knows that very many accidents arise from trains being thrown from the track by running over animals on the track, and in this very case the engine was thrown from the track, but fortunately no one was injured. The company is to maintain the fence, but that does not require them to have a man stationed at every ten rods to see that no one tears it down. They are to maintain it as against the ordinary action of the elements, to use diligence to keep it in repair, but' they are not insurers against accidents to it, nor against the vicious acts of trespassers who may intentionally destroy it, for the purpose of injuring the property of the farmer or the railroad company. To carry out the object of. the statute it would seem to be proper to require the person in charge of the farm as well as the railroad company, to exercise diligence in keejdng the bars up. Yet under the charge to the jury, if the bars were thrown down by a trespasser, and the farmer saw them down and knew his horses were at pasture there, and liable to escape from the field to the track, yet he is under no obligation to put them up. We claim that if the. person in charge found the bars down it was his duty to put them up. If he found them out of repair it was his duty to put them in repair at once. Where consequences so great may result from the omission to do so, to hold any other rule would be dangerous. Even if he is to call on the company for' compensation for repairs, still he should not allow the fence to be out of repair to the danger of human life. The rule cannot be held too strict.
    III. The 5th assignment. The requirement is to have a “ fence of the height and strength of a division fence required by law.” What is the height and strength required by law? The only law we have on the subject is Chapter 14 of Comp. Laws, p. 243, § 605. By this provision of law the judgment of the fence-viewers is the , final decision of the proper height and strength of a railroad fence. If this be not so, then there seems to be no means provided to determine the question as to height and strength of the fence, and perhaps till such a standard shall be provided, the law may be held inoperative as being an incomplete expression of the legislative will.
    IY. The 10 th assignment. The horse was hilled in August, 1868. The suit was commenced in November, 1868. The issue was joined by filing plea, April, 1869. The cause was tried before a jury, and verdict for $212.04 rendered on 22d of June, 1869. Judgment was rendered October 9, 1869, for double damages, $424.08.
    The act of 1855, § 43, allowed single damages only. In 1867 the act was amended and double damages allowed. By act of March 13, 1869 (Laws 1869, Vol. 1, p. 49), the clause for double damages is stricken out, and the rule again was single damages. This act of 1869, approved March 13, 1869, took effect in ninety days from April 5, 1869, that being the date of final adjournment of the Legislature. The amendment therefore became law on the
      fifth day of July, 1869. The duty to fence the track is imposed by the statute. The right to maintain an action for damages in case of the loss of animals killed by trains, is a right given by statute. Before this statute there was no such duty, no such right.—Williams v. Mich. Cent. R. R. Co., 2 Mich., 259.

    The double damages given by the act of 1867 are given as a penalty. The excess over actual damages is nothing but a penalty. It is not founded upon any right in the owner of the animal,, for in cases of ordinary torts the plaintiff only recovers his actual damages. It is founded solely on the statute, and is in the nature of a penalty.
    The plaintiff has no vested right to the double damages nor to any damages. He is in the wrong in allowing his animals to stray off his own lands. As said above, his right depends exclusively upon the statute. In this case, before judgment was entered, the statute of 1869 took effect, and the statute for double damages ceased to exist.—Key v. Goodwin, 4 Moore & Payne, 341, 351; Smith’s Com. on Stat. and Const. Law, § 797, ¶. 880; Butler v. Palmer, 1 Hill, 324; Tivey v. People, 8 Mich., 128; Norris v. Crocker, 13 How., 429; Williams v. County Commissioners, 35 Me., 345; Engle, adm’r. v. Shurts, 1 Mich., 150; Campau v. Gillett, 1 Mich., 416; Sedgwick on Stat. and Const. Law, 129 to 131; O. Bank v. Freeze, 18 Maine, 109; Welch v. Wadsworth, 30 Conn., 149; Washburn v. Franklin, 35 Barb., 599; People v. Livingston, 6 Wend., 540.

    At the time this judgment was rendered there was no law in force authorizing a judgment for more than the amount of damages assessed by the jury. The Court therefore had no jurisdiction to give a judgment for double the verdict.

      D. W. C. Gage, for defendant in error.
    I. The 1st, 2d, 6th, 7th, 8th and 9th assignments of error arc based upon the assumption that plaintiff in error, by occupying and operating its railroad through an agent, or agents, avoided the duty of erecting and maintaining fences on the sides of its road, , and the liability for neglecting that duty.
    (Section 1987 C. L., as amended L. 1867, p. 221, imposes the duty and liability upon both principal and agent— upon the corporation owning, or person or corporation occupying any railroad within this State.—Gardner v. Smith, 7 Mich., 410; Clement v. Canfield, 28 Vt., 303; The C., St. Paul & Fond du Lac R. R. v. McCarty, 20 Ill., 385.

    II. No question of negligence on the part of defendant in error can arise in the ordinary use of the land when his horse was lawfully at pasture in a close alongside of defendants’ road.—10 Fost., 188. Plaintiff in error neglected its statutory duty at its peril.—8 Barb., 358; 3 Ker., 42; 2 E. L. and Eq., 294. The refusal to charge as requested in 3d, and the charge as given in 4th assignment, were therefore correct.
    III. August 12, 1868, the horse was Idlled. Section 1987 C. L.,. as amended in 1867, was then in force, giving double damages for injury arising from neglect to erect and maintain fences. The law in force when the injury was done fixed the measure of the plaintiff’s right— and when the injury was done that right was complete and vested.—Dash v. Van Kleeck, 7 Johns., 477; Watkins v. Haight, 18 Johns., 138; Palmer v. Conley, 4 Denio, 374; The People ex rel. Salt Co., v. State Auditors, 9 Mich., 327.

    It is a sound rule of construction to give a statute a prospective operation- only, unless its terms show a legislatire intent that it should hare retrospeotire effect.—Cooley’s Cons, Lim., 370. The courts refuse to give statutes a retroactive construction unless the intention is so clear and positive as by no possibility to admit of any other construction.—Sedgwick on Stat. and Const. Laws, 193. Statutes affecting remedies and proceedings pending at the time of their enactment, are to be exempted from their operation unless a contrary intent appears.—Trist v. Carbenas, 18 Abb. Pr., 143. To hold otherwise, would defeat vested rights and punish the innocent.
   Graves, J.

On the 12th of August, 1868, a horse belonging to the defendant in error was run over and killed by an engine of the Flint & Pere Marquette Company on the road of the plaintiffs in error, and this suit was brought by Austin to recover for the injury. On the 22d of June, 1869, a verdict was given in his favor for $212.04, and on the 9th of October thereafter, the Court, on his motion, awarded judgment for double that sum. While it appears by the bill of exceptions that the plaintiffs in error owned the road, it alsq appears that under a contract between them and certain officers and stockholders of the Flint. & Pere Marquette Company, and when the road was only in part constructed, the latter company entered and finished it, and exclusively operated it, and that the horse was killed by the engine of that company, while using the road under such contract.

The first question arises on an objection by plaintiffs in error, that under the 43 d section of the general railroad law, as amended in 1867, they could not be held liable on the ground that the Flint & Pere Marquette Company were not their “ agents,” within the meaning of the statute. We have to inquire therefore whether, in view of the facts of this case, a proper construction, of that law would make the word “ agents/’ as there used, comprehend the Flint & Pere Marquette Company.

This section, before its amendment in 1867, was, and also since the repeal of that amendment, is identical with section 44 of the general railroad law of New York, and similar in its essential features and import to statutes relating to the same subject in several of the states. And whenever the courts have proceeded to expound such enactments, they have refused to confine their operation within the smallest limits permitted by the phraseology employed, but have given them an enlarged construction, and one calculated to advance the supposed object. The Court of Appeals in New York, in deciding a recent case under their statute, stated very clearly the rule to be observed. They said: — “The passage of this act being induced by public considerations, and its purpose being to protect the traveling pvMic and the owners of domestic animals 'along the line of road, it should receive a liberal construction to effectuate the benign purpose of its provisions.”—Tracy v. The Troy and Boston R. R. Co, 38 N. Y., 433, 437.

The mode of interpretation here expressly asserted has been constantly assumed as the true one, and numerous cases might be cited by way of illustration. The two following have a direct bearing upon the point.

In Suydam v. Moore & Losee, 8 Barb., 358, it was decided that a person hired by the engineer, and having charge under him of the brake, was to be considered an agent of the company, under the New. York law.

In a case decided in this Court in 1859, where one Gardner, a contractor with a company for track grading, was prosecuted for damages occasioned by the loss of a flock of sheep for want of a fence along the line of the road, and in which the point was made that the defendant did not possess the character of “agent,” as intended by the statute, the Court said: — “We think Gardner was an agent within the letter and spirit of the act; it was evidently intended to embrace under the denomination of agent, every one in the employment of the company. The word is to be taken in an enlarged sense to include those who exercise the power of the company upon or over the road, as well as those acting as engineers, or in any other subordinate capacity, and who may be active in, or connected with the commission of the injury. Thus in Clement v. Canfield, 28 Vt., 303, a lessee of a railroad, in possession, was held to be an agent within the meaning of a like statute, and in the Chicago, St. Paul & Fond du Lac R. R. v. McCarthy, 20 Ill. R., 385, a contractor was held to be an agent under the statute of Illinois.”—Gardner v. Smith, 7 Mich., 410. The amendment of 1867 not affecting the point here examined, it is believed that the doctrine of the foregoing cases is decisive against the plaintiffs in error. In the present case the road of plaintiffs in error was finished, stocked, and worked by the Flint & Pere Marquette Company, at the instance of-the former, and for their benefit, under regulations set forth in the agreement contained in the bill of exceptions. It was by the express authority and permission of the plaintiffs in error that the Flint & Pere Marquette Company were running over the road when the horse was killed; and if the loss had occurred by means of an engine of the latter engaged in finishing the road, under 'the agreement, the case would have plainly fallen under the rule laid down in Gardner v. Smith.

The circumstance, that the engine at that time was in use for traffic, under the agreement, instead of being employed in construction, cannot change the result. The principle must be the same whether the Flint & Pere Marquette Company were, as contractors, running over tbe road to finish it, or to carry freight, so long as the running was done on the same footing, and under the same arrangement and authority.

Section 43,. as it originally stood in the general law, cast the burden of maintaining a fence upon the corporation formed under the statute, but by the amendment of 1867 the Legislature seem to have intended to impose the duty upon the owners and occupants respectively, as well as on the company first organized, and without confining it to either.

Neither the phraseology nor manifest object or spirit of the amendment of 1867 will warrant the supposition that the Legislature designed to limit the duty to an occupant or owner when these characters should be disunited. The strong necessity on public and private grounds for the protection afforded by a fence being perceived, and experience having shown that the shifts and changes in railroad ownership, occupancy and management might make it difficult to secure it, it was deemed important to spread the duty of fencing on so many shoulders as to make evasion an impossibility.

The duty was therefore cast upon every party within the description, and not merely on some one to the exclusion of others. In strict accordance with the same general design, and in amplification of the remedial purpose of the statute, it was provided that the making or maintaining a fence being omitted, any of the parties subjected to the duty of making and maintaining it and doing the suggested damage on the road, and any agents of such parties doing such damage, should be liable.

The fact, that the agent committing the act was made liable as well as the • principal, is palpable, and this is a complete answer to the argument that the law intended to Confine the liability to a single party. Indeed, the object of the provision, and the language used, strongly favor the conclusion, not only that the duty to maintain a fence may rest on several different parties at the same time, but that each of said parties, in fact, implicated in the act causing damage will be involved in liability on account of that act.

The circumstance, therefore, that the Flint & Pere Marquette Company were under a duty to maintain the fence, and may have been liable under the statute for the injury complained of, cannot be considered as excluding the existence of the like duty and the like liability on the part of the plaintiffs in error. As owners of the road, the latter were bound to maintain the fence, and they would be liable for the damage done by their agents in case the fence should not be maintained. If these agents should also be “occupants” of the road, they would likewise be liable in their character of agents and in that of occupants, but this could not exonerate the principal, nor would the fact that a party was an “ occupant ” of the road preclude his being an “agent” of the owtier in the statutory sense.

It appeared on the trial that the horse of Austin, together with a horse belonging to Mr. McKay, were in a field owned by Mr. English; that this field adjoined the railroad and had been fenced; that McKay occupied the land as tenant; that the Flint & Pere Marquette Company had shortly before the accident put in a pair of bars for the accommodation of this field, and that McKay had, within a day or two, hauled hay through there; that at 7 o’clock in the afternoon of the 12th of August the bars were up; that about an hour afterwards the two horses were encountered on the track near the bars by the engine and killed; that the horses were tracked to the bars, which were then found to be down at one end; and that the cause of the bars being down seemed to be that one of the upright boards holding them in place had been pushed off. It also appeared that both horses were quiet and orderly, and that they passed through the bars to the place where they were struck.

The evidence was conflicting as to the height and strength of the bars, that for the defendant in error tending to. show that they were less than four feet high, and that the upright strips which were meant to secure the ends of the bars were only nailed on to the posts with three eight or ten-penny nails, and could be pushed off by horses in rubbing against the bars; and that for the plaintiff in error tending to prove that the bars were more than four feet high, and that the upright pieces were strongly nailed on with at least twelve nails of twelve-penny size, and a spike in each.

Upon these facts the counsel for the company requested the following charge: “ The bars having been put in for the accommodation of the farm crossing, it was the duty of the person in charge of the farm to keep the bars up, and if they were out of ‘repair, it was his duty to „ call the attention of the defendant, or its servants or officers, to that fact, and if he failed to keep up such bars, or to give such notice, he was guilty of negligence which will defeat a recovery for damages resulting therefrom.” But the Court, declining to give such instruction, stated and charged as follows: “That request I cannot comply with. It (the request) seems to devolve upon the person in charge of the farm to exercise a supervision, which is a part of the duty of keeping a fence in repair. It supposes that the person in charge of the farm, if he found the bars down, must put them up; that duty devolves on the defendant. But if the plaintiff should let the bars down himself, it would be his duty to put them up as well a they were before he let them clown, and if the defect in the fence or in the bars arose from ill usage by the plaintiff or by McKay, who had charge of plaintiff’s horse, and the defect did not come to the knowledge of the defendant, the plaintiff cannot recover. If a defect arose after the bars were originally made, otherwise than by ill usage from the plaintiff or from McKay, it would not be the duty of McKay, or the person in charge of the farm, to give any notice about it; the defendant was bound to take notice if the fence got out of repair on account of ordinary wear or the ordinary effect of the elements; it was the duty of the defendant to take notice of it.”

It is now insisted that it was the legal duty of McKay, who was in charge of the farm, to put up the bars whenever he found them down by whatever cause, and also to repair them whenever he found them out of repair, without reference to what may have produced their bad condition, and that therefore the Court erred in refusing the foregoing request which denied to Austin any legal redress in case McKay failed in such duty; and it is likewise claimed that the Court erred in the charge given in response to the request.

It is a sufficient reply to this objection that the facts, assumed by the request and implied by the objection, are not found in the record. There is no evidence that McKay or any one else found the bars down between 7 o’clock, when they were in place, and the time when the horse was killed, nor any evidence that the bars were found out of repair at any time prior to the accident. The evidence bearing upon the condition of the bars, with a single unimportant exception, related to their height and mode of construction and not to their state of repair. The testimony that a single bar had a piece split from it and apparently from having been run over, was, under all the circumstances, destitute of weight to show that the bars were out of repair. It does not appear to have had any connection whatever with the cause of the bars being down, or in itself to have been a defect leading in any manner or degree to the escape of the horse.

But it is unnecessary to rest upon the irrelevancy of the request and objection. The charge given upon the points raised was quite as favorable to the plaintiffs in error as they were entitled to.

It had been shown without contradiction that both horses were quiet and orderly, and this circumstance excludes any inference that the bars were subjected to any improper strain by them. Such being the case, the evidence in the record leaves it necessarily to be implied that the bars were weak and insufficient. No other explanation of what happened is admissible upon the evidence. It is true that conjecture might suggest another explanation, but conjecture is not a basis for judicial reasoning or deduction.

The duty imposed by the statute to maintain a fence was peremptory, and if it should be admitted that an inevitable and sudden destruction or injury would excuse compliance with the mandate for such reasonable time as should be necessary for restoration or repair, still there is nothing in the record tending to show any such destruction or injury.

Under the charge given, the jury must have found, that if the defendant in error let down the bars, he put them up as well as they were before he let them down, and there does not appear to have been any evidence tending to show that either McKay or defendant in error, by ill usage, caused the defect by which the horses escaped. Whether the fence and bars, when up, were of proper height, was a matter of no practical consequence, since it was clearly proved, and not disputed, that the escape from the field was solely owing to the condition and not to the height of the bars. The statute nowhere specifically defines the strength which the fence must possess. The section before referred to declares that it must be of the “height and strength of a division fence required by law,” and the only enactment on the subject of partition or division fences does not prescribe how strong they must be built. It declares that “all fences four and a half feet high, mid in good repair, consisting of rails, timber, boards, or stone wails, or any combinations thereof, and all brooks, rivers, ponds, creeks, ditches, and hedges, or other things which shall be considered equivalent thereto in the judgment of the fence-viewers within whose jurisdiction the same may be, shall be deemed legal and sufficient fences.”—§ 1, Ch. 14, Com. L.

A “fence” four and a half feet high, constructed of timber and boards and being in repair, would, according to this statute, be a lawful fence.

But there may be an erection of timber and boards of the height of four and a half feet which would furnish no protection whatever as a fence when in perfect repair, and hence a literal reading of this provision would lead to a result which would defeat its purpose. The statute must have a reasonable construction. The word “fence,” as employed here, must be construed as including a mode of construction which will give the fabric when completed such reasonable strength as to confine or turn the animals usually restrained by fences in this country.

The bars in question were combined of “boards and timber,” and it was the duty of the company to keep them in such a state of repair as to answer the purpose of a fence, and at the same time to serve as a place of passage.

I think the provision as to fences along railroads was not intended to require the interposition of fence-viewers. The purpose was to require the owners and occupants of railroads to maintain fences, which, when built of the specified materials, should be four and a half feet high and of the strength just mentioned, and when consisting of hedges, ditches, etc., to be equivalent to the “fence” made of the other materials. But if the contrary view should be deemed the right one, the result in this case would be the same. The first paragraph of the section regulating fences gives the standard and provides for an award by fence-viewers, not upon that, but upon whether the brook, river, pond, creek, ditch, hedge or other thing relied on as a substitute, is equivalent thereto. As the bars were of the materials mentioned in the first paragraph and not something else proposed as a substitute, there was no question to be settled by fence-viewers.

The remaining question is attended with more difficulty. The act of 1869, which was passed before the verdict, and became operative after it, but before judgment, struck from the amended section 48 the word “double,” leaving a liability for single instead of double damages, and the plaintiffs in error insist that this amendment cut off all right to a judgment for more than single damages. They claim that the act of 1867, in allowing more than the single damages, was exclusively punitory, and vested no right in the defendant in error, which the Legislature, before judgment, could not take away.

On the other hand, it is argued for the defendant in error that the law as it stood when the injury was done, fixed the measure of his right, and that the moment the damage was done, he acquired an inviolable right to recover not merely all his damages, but double that amount, and that it is not to be supposed that the Legislature intended, by the repealing act of 1869, to afifect the measure of redress in a pending action.

The Constitution of this state contains no provision in terms against the passage of retrospective laws, or laws affecting rights and remedies in pending proceedings, and such statutes are not necessarily invalid. The purposes of justice, and the welfare of the community, may be occasionally advanced by such enactments, and the history of our legislation does not fail to disclose instances of this kind. The validity of such statutes must depend upon [he nature of the objects to which they relate, or the consequences which attend their application in particular cases; and unless they bear injuriously upon some private or vested right, unless they fall without the domain of general legislative power, or violate some constitutional interdict, the courts have no authority to pronounce against them.

As experience, however, has shown that laws operating upon past transactions and upon pending proceedings, when within the competency of the Legislature, are extremely liable to disturb the course of justice and prejudice the interests of those who have acted upon the faith of legal conditions pre-existing, it is an established maxim to construe statutes as having only a prospective operation unless a contrary intent is plainly indicated.

The act of 1869 was an unqualified repeal of the phrase introduced by the act of 1867 giving double damages, and there is no ground for holding that the Legislature meant to except pending cases from its operation. It must therefore be considered as applying to the case at bar. It cannot be adjudged invalid simply because it was framed to operate upon pre-existing rights and pending cases. Can it be held inoperative against the claim of defendant in error upon any other ground? He maintains that his right to a judgment for double the whole damages found by the jury under the amendment of 1867 was a vested right which the subsequent enactment could not take away.

He had instituted his suit under the act as amended in 1867, and had obtained a verdict for single damages when the repeal of the clause allowing such damages to be doubled became operative.

Beyond all doubt his right to a judgment for single damages was secure against legislative attack, and no attempt was made to impair the right to such damages. The statute was aimed solely against the power to recover for the additional sum. What was his right to that additional sum? The original section entitled him to “all damages;” the amendment of 1867 assumed to aüthorize a recovery for “ double all damages,” and the repealing act of 1869 limited the right of recovery to “all damages,” as it formerly stood. No authority exists at common law for increasing the recovery by multiplying the whole damages found by the jury, and it is not clearly perceived upon what principle the Legislature can be justified in declaring that for an injury of the kind in question, a party shall be entitled to “double all the damages.”

The power to multiply the sum of the whole damages by two implies the power to multiply it by a hundred, and the excess, be it more or less, is so much beyond all the damages, taken from one party and given to another.

This, of course, cannot be done to make the plaintiff whole, but must be to accomplish some other object. Whatever that object, the process, as between the parties, eventuates in bestowing a boon upon the one at the expense of the other. For, as between man and man in these cases, having no element of wantonness, willfulness, or malice, the claims of moral justice are satisfied when the party at fault has paid all the damages, actual or presumed. Without assuming, however, to call in question the validity of that portion of the act of 1867 which authorized the whole damage to be doubled, the real character of the provision may justly be considered -when a party claims that the Legislature could not prevent his recovering the extra amount. The claim of defendant in error to exact from the company and appropriate to himself a sum of money above all his damages, was not a right resting upon any principle of natural equity, or upon any idea of abstract justice, as between the parties, hut a claim based solely on a legislative dictum. The allowance of “ all the damages ” satisfied the justice of the claim as between the parties, and the provision giving more must have been dictated by legislative views of public policy.

It is impossible to regard the excess above single damages, allowed by the act of 1867, in any other light than in the nature of a penalty, and a penalty not resting in contract, or given in lieu of damages, or as the measure of redress due to the complaining party, but imposed by legislative power for the purpose of punishment.—Merchants’ Bank v. Bliss, 13 Abbott’s P. R., 225; s. c. 21 How. P. R., 365.

The language and spirit of the act exclude the supposition that the Legislature intended compensation or any thing of the nature of recompense to the injured party in allowing the extra amount, since the single damages provided for were “all the damages done,” and if, as single damages, the party obtained “ all the damages,” his recovery beyond that must embrace something not strictly damages at all. The name given, therefore, to this' excess by the statute cannot alter its intrinsic character and transform a penalty for punishment into a mere recompense; neither can the circumstance that the amount above the whole damages, when recovered, would pass to the plaintiff and not to the public, alter its nature and convert it into a private personal claim absolutely inextinguishable by repeal before judgment.—See Butler v. Palmer, 1 Hill, 324, and cases cited; Engle v. Shurts, 1 Mich., 150; Seymour v. McCormick, 16 How., 480, 488, 489.

In the case last cited it was considered that when Congress, by one patent act, made an infringer liable to the patentee for three times the price for which the patentee had usually sold or licensed the use of the invention, and by a subsequent act to three times the actual damages sustained by the patentee, the excess above the price of the license m the first case, and above the actual damages in the second, was of the nature of a penalty and intended as a punishment of the infringer, notwithstanding it was to go to the patentee and not to the government. And in alluding to the nature of the provision in the first case, the Court said: — “Here the price of the license is assumed to be a just measure of single damages, and the forfeiture, by way of penalty, is fixed at treble that sum;” and when adverting to the change wrought by the second act, and the nature of the provision itself, it was further declared in substance that there was no good reason why the taking of a man’s property, in an invention, when not wantonly or maliciously done, should be trebly punished, while the measure of damages as to the other property, taken without wantonness or malice, is single and actual damages.

If we test the amendment of 1867, and the act of 1869 which repealed it, by the principles supposed to distinguish vested rights of property and secure them against encroachment, we shall find as substantial reasons for maintaining that the first act, as sought to be applied to the plaintiffs in error, invaded their vested rights of property, as can be discovered for contending that the repealing act was an infringement of the vested rights of property of the defendant in error. The effect of the amendment of 1867 was to allow the defendant in error to draw an amount beyond all his damages. from the property of the plaintiffs in error, and the effect of the repealing act was to prevent that consequence.

When a party, as in this case, avers that a statute has invested him with a right against another in the nature of a personal charge, which a repeal of the statute before judgment cannot impair, he takes it upon himself to show that the right was vitalized by some personal equity underlying the law, or arising upon it.

The claim of the defendant in error appears to have no such element to support it. It rests upon the single fact that the Legislature, by the passage subsequently repealed, authorized judgment in double the whole damages.

Without pursuing the subject further, I think it may be safely maintained that the Legislature, in passing the act of 1867, assumed that the whole damages, • without addition, would be a complete satisfaction to the plaintiff, but in the exercise of legislative discretion, acting upon grounds of public policy, superadded the increased liability to punish the defendants, and not merely to benefit the plaintiff; that notwithstanding the method adopted involved the appropriation of the penalty by the plaintiff, the provision did not give rise to a right to such penalty in the destined donee superior to the power of the Legislature; and that the amendment of 1867, in declaring a liabilty in a sum beyond the measure of full reparation, assumed to impose a duty upon the party made liable to pay such extra sum, but did not assume to confer on the other party an irrepealable right to obtain judgment for that precise sum.

Before judgment, the power of the Legislature over the extra liability could be no less, and the right of the plaintiff below no greater, than would have been the case if the excess had been expressly called a forfeiture, and been required to be paid over to the public on collection. And if such had been the regulation, the repealing act must have cut off the power to recover the sum given exclusively for punishment, and deprived the Court of jurisdiction to award judgment for it.—See Lewis v. Foster, 1 N. H., 61; Welch v. Wadsworth, 30 Conn. R., 149; Oriental Bank v. Freeze, 6 Shepley, 109; Hollingsworth v. Virginia, 3 Dallas, 378; Hunt and wife v. Jennings, 5 Blackf, 195; Washburn v. Franklin, 35 Barb., 599; Cooley on Const. Lim., 383.

I thinlc the judgment of the Court below, as to all damages above the amount found and returned by the jury, should be reversed, but in all other respects be affirmed, and that the plaintiffs in error should recover their costs in this Court.

The other Justices concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Sarah Zeigenfuss v. David Zeigenfuss and Hannah Zeigenfuss.

      Practice in the Supreme Court: Alimony. Alimony is not a matter of course in the Supreme Court. When the wife was complainant below, and she appeals, there must be a satisfactory showing of the reasonableness and good faith of the appeal, and that the granting of alimony will be necessary to prevent a failure of justice, and the wife from suffering, to justify its allowance.

      Heard October 5.

      Decided October 6.

    Motion for alimony in a cause pending on' appeal by Sarah Zeigenfuss from the Circuit Court for the County of Kent in Chancery, dismissing her bill for a divorce.

      Wilson Gray, for the motion.
   Per Curiam.

Complainant filed her bill for divorce against defendant, David Zeigenfuss, for ill treatment, and the bill was dismissed in the Court below, and she has appealed. She now asks for alimony pendente lite, and for an allowance, on petition showing her want of means and her husband’s condition as to property. Oontra affidavits were presented. There was no affidavit or other showing that the appeal was brought in good faith, and for reasonable cause.

It seems to have been supposed that alimony is a matter of course in this Court. This is not so. When the wife appeals we always require some proof of the reasonableness and good faith of the appeal, and also proof that it is necessary to grant alimony against the husband to prevent a failure of justice and to save the wife from suffering. And when the wife was the moving party in the commencement of the suit, and has had her bill dismissed, the showing must be very satisfactory.

In this case there is no showing whatever as to the good faith or propriety of the appeal, and upon the question of necessity the facts are not sufficient. It appears that the husband is poor and not able to furnish any considerable amount for alimony, and that the wife’s friends are well off and not indisposed to aid her. We do not think there will be any great danger of a failure of justice by reason of the denial of alimony; and we deny the application, but without costs.


author: Christiancy, J.

text:
    John W. Burson v. Walter S. Huntington.

      Appearance; Waiver. An appearance and plea to the plaintiff’s declaration waives all irregularities in the service and return of process.

      Promissory notes: Burden of proof: Signature: Delivery: Revenue stamp.' An affidavit, filed with the plea to a declaration upon a promissory note, which denies only the delivery of the note, admits the genuineness of the signature; and the production of the note, together with proof of the indorsement by the payee, establishes a prima facie case for the plaintiff.
    The delivery of a promissory note by the maker is necessary to a valid inception of the contract. The possession of a promissory note by the payee, or indorsee, is pi'ima fade evidence of a delivery. But if it appear that the note has never been actually delivered; and that without any confidence, or negligence, or fault on the part of the maker, but by force or fraud, it was put in circulation, there can be no recovery upon it, even when in the hands of an innocent holder.
    A revenue stamp is not essential to the validity of a promissory note; and the want of such a stamp would not be notice of its invalidity.

      Evidence: Testimony of a deceased, witness. It is not necessary that 'a witness called to prove what a person, since deceased, had testified to on a former trial, should be able to recollect the precise words of the deceased witness. It is sufficient if he be able to state that he recollects and can give the substance of the testimony.

      Heard July 6.

      Decided October 11.

    Error to Kalamazoo Circuit.
    This cause was brought into the Circuit Court for the County of Kalamazoo by appeal from the judgment of a Justice of the Peace, in an action in which Walter S. Huntington was plaintiff, and John W. Burson defendant. The Justice’s transcript states that the plaintiff declared verbally on the common counts in assumpsit and upon a promissory note, which was filed at the time of declaring, and of which the following is a copy, viz:
    “Schoolcraft, Mich., Apr. 12th, 1866.
    “ Ninety days from date, for value received, I promise to pay A. N. Goldwood, or order, one hundred and twelve dollars, and fifty cents,t with interest. John W. Burson.” Indorsed on the back, — “A. N. Goldwood.”
    The defendant filed an affidavit denying the delivery of the note, and also a plea and notice in writing.
    The defendant, in the affidavit filed with his plea and notice, deposes “that the written instrument, declared on in this cause by said'plaintiff, was never delivered by this defendant, to the said A. N. Goldwood, mentioned in said written instrument, nor to any other person for the said A. N. Goldwood, or any other person, and that this defendant never authorized any other person to deliver the written instrument for him, this defendant, to the said A. N. Goldwood, or to any other person; and defendant further says that this deponent never placed any United States internal revenue stamp upon said written instrument, and never authorized any other person to do so for him, or to cancel the same; that said written instrument was taken from the house of this defendant, in this defendant’s absence from the same, by the said A. N. Goldwood, without the knowledge or consent of the déponent at the time.”
    On the trial before the Justice, the jury found a verdict for the defendant, and the plaintiff appealed.
    On the trial in the Circuit Court, the defendant objected to the jurisdiction of the Court, that: 1st. It does not appear that there was any legal service of the summons upon the defendant in the case. 2d. It does not appear that the summons was ever delivered to any officer, or in the hands of any person authorized to serve the same. It does not appear that the parties, or either of them, ever appeared before the Justice in pursuance of the requirement of said summons; which objections were overruled by the Court, and the defendant excepted. The signature of A. N. Goldwood on the back of the note having been proved, the plaintiff then offered to read the note in evidence to the jury. The defendant objected, on the ground that the execution of the note had been denied by affidavit of defendant, filed with the Court under the statute, and the signature had not been proved; which objection was overruled by the Court, and the defendant excepted. Counsel for defendant again objected to the reading of the note in evidence, upon the following grounds: There is no proof of the signature of defendant to the note; the execution of the note is denied under oath; the note is not stamped, and the stamp canceled, as required by the laws of the United States; which objections were overruled by the Court, and the defendant excepted. The note Laving been read in evidence, the plaintiff rested.
    On the part of the defense it was shown that Ellen Burson had been sworn as a witness before the Justice, and that she had since died.
    Zachariah Fletcher was then called, and testified that he knew Ellen Burson in her lifetime, and heard her give all her testimony before Justice Allen. Being asked to state what she testified to oh that trial, he answered — I cannot state her precise words; can give the substance of what she said. The counsel for plaintiff' objected to the witness stating her testimony any further, upon the following grounds: 1st. It does not appear that the witness can repeat her testimony. 2d. It calls for conclusions as to the effect of her testimony. The objection was overruled by the Court, and the witness testified:
    “That Goldwood came to the house of defendant and told defendant he had come to finish up that matter. They sat down, and Goldwood wrote this note. Defendant signed it. Goldwood said he w;anted security or a signer. Defendant said he would go out and see his uncle. His uncle was at the barn at the time. Defendant laid the note on the table, and told plaintiff not to touch it until he came back. Defendant went out of the house to the barn, and before he returned, Goldwood picked up the note and started out doors with it. She told Goldwood to let the note be on the table until defendant came back. Goldwood said he was going to take the note, or proposed to have it, or something to that effect, and went off with it. He started towards Kalamazoo. She said there was no stamp on the note at the time Goldwood took it away.”
    After the testimony of the parties was closed, the counsel for the plaintiff moved to strike out all the testimony of witness Zachariah Fletcher, which purports to be the testimony of Ellen Burson, given on the trial of this cause before the magistrate, for the reasons: 1st..The testimony is simply the conclusion of the witness and not her statement. 2d. The plaintiff is shown to be a Iona fide holder of the note before maturity, and her testimony is' therefore irrelevant; to which the counsel for defendant objected; but the objection was overruled by the Court and the said testimony stricken out: the counsel for defendant excepted to the ruling.
    The counsel for the defendant then asked the Court to charge the jury:
    1st. That if they find that A. N. Goldwood, the payee named in the note, took this note after it was drawn and signed by defendant, without the knowledge, and against the will and consent of the defendant, and before the defendant had delivered the note to any person, the note thus obtained would be void in the hands of said Goldwood.
    2d. That such note would be void in the hands of any subsequent holder, deriving possession of the same from said Goldwood, whether for value or not.
    3d. If the jury shall find that the plaintiff had notice of the means and manner used by A. N. Goldwood, as above stated, in getting possession of the note at the time he indorsed and delivered it to the plaintiff, the plaintiff could not be considered an innocent holder of the note.
    4th. That whether the plaintiff in this cause had such notice, or not, is a question of fact to be found by the jury from all the testimony in the case. That the fact of the plaintiff having such notice need not be proved by positive testimony, but may be proved by circumstances.
    5th. That this note in suit, if drawn' and signed by the defendant, and if not afterwards delivered by him or by his authority to some other person, had no legal existence, and is therefore void.
    6th. That if the jury shall find that the note in question upon its face showed at the time that the plaintiff received it of A. N. Goldwood, or during the time Goldwood had the note plaintiff saw the same, and it was not properly executed, and was invalid under the laws of the United States for the want of a proper stamp, then the plaintiff cannot be considered as a bona fide holder, though he may have given value for the note.
    7th. That if the note .bears upon its face an illegal stamping by the payee therein named, and did so bear such illegal stamping at the time it was indorsed to, and obtained by the plaintiff, this fact alone should have been sufficient to put the plaintiff on inquiry as to its validity when he obtained it, and if he failed to do this he cannot be deemed an innocent purchaser for value.
    And thereupon the Court charged the jury as follows:
    The present is an action of assumpsit, brought to recover the principal and interest moneys claimed to be due upon a negotiable promissory note. The plaintiff claims to be the holder of said note by purchase. The action is brought in the form prescribed by statute. The declaration consists of the common counts, with a copy of the note appended. The defendant having failed to deny the execution of the note on oath or by affidavit duly filed, it becomes unnecessary for the plaintiff to prove such execution on the trial of the case. By offering the note in evidence, then proving it to have been indorsed and delivered to him, the plaintiff in such case makes out a prima facie case for its recovery.
    The real questions raised upon this trial are those started in the defense set up, and had reference almost solely to the doctrine of our commercial law and the righta of the parties interested in negotiable or commercial paper. As between first parties to such paper, as maker, payee, the right of defense is generally as ample in range, as the facts which would invalidate the contract or claim; as, for instance, illegality, fraud, want or failure of consideration or any unwarrantable means for obtaining it. A like rule prevails in an action between the maker and a subsequent indorser, or holder, coming into possession or ownership after the note has matured, and become due and payable by its terms.
    The same rule governs ■ also as between the maker and holder by purchase before maturity and for value, but with notice of existing infirmities in the paper, or its surroundings, which would invalidate the same, as, for instance, that the note had been given upon the sale and purchase of intoxicating liquor in this State.
    But when the action is between the maker and Iona fide holder for value of negotiable paper, purchased before its maturity and without notice that the same is different, such holder is not subject to equities that may exist between first parties. The law commercial protects such holder from the defenses which might be set up, as between the parties. In general terms facts going to impeach or invalidate the paper cannot be resorted to on the defense. The rule itself is one of commercial necessity in order to impart confidence and steady value to this class of papers in commercial and business transactions.
    The counsel for defendant has presented to the Court a series of seven requests to charge the jury, and to which the Court will now direct your attention. As to the first request, the Court declines to charge as requested, but modifies the request to charge (in this form provisionally) that if a party negligently allows his negotiable note to get into circulation, or if after it has passed from his possession he either acknowledged or by silence acquiesced in a claim.of its validity, by the holder; to which refusal to charge as requested, and also to said modification of the request, the counsel for defendant excepted.
    As to the second request, the Court declines to charge as requested; to which refusal to charge as requested in said second request, the counsel for defendant excepted.
    As to the third request, the Court charges you as' requested, with the addition, that if they also find that Goldwood obtained the note by unlawful means of which the plaintiff had notice, then the plaintiff cannot be considered an innocent holder of the note. To the charge contained in the addition made by the Court to the request, counsel for defendant excepted.
    As to the fourth request, the Court charges as requested.
    As to the fifth request, the Court charges that such note would be invalid in a suit between the original parties, but in the hands of an innocent holder for value before maturity and without notice, the rule would be subject to the qualifications and limitations already expressed in this charge. To the refusal of the Court to charge as stated in this request, and to the charge as given by the Court in relation thereto, counsel for defendant excepted.
    As to the sixth and seventh requests, the Court declines to charge as requested, but offers to each of said requests the following modifications: The Court will not pronounce upon what precise facts are necessary to put a party upon inquiry, so as to charge him with notice, but states the law to be that if the jury found the plaintiff had notice of facts which should have put a prudent man upon inquiry as to its validity, then the jury may find that the plaintiff purchased with notice; to which refusal to charge as stated in defendant’s sixth, and seventh request, and to the charge generally of the Court relating thereto, the counsel for the defendant excepted.
    The jury found a verdict for the plaintiff, and judgment being entered thereon, the defendant brings the cause into this Court by writ of error.

      Thos. R. Sherwood, for plaintiff in error.
    I. The Circuit Court had no jurisdiction in this ease. .a. There was no legal service in the summons.—2 C. L. §§ 3911, 3912. 1). The record does not show an appearance of defendant in pursuance of the writ. . c. The appearance as stated in the record was not sufficient to give the Court jurisdiction either of the person or of the subject matter. It was not a voluntary appearance under the statute.—2 C. L., §§ 3662, 3713.

    II. The execution of the note in suit was denied under oath by the defendant.—2 C. L. § 3767. The plaintiff should have proved the defendant’s signature to the note before reading it in evidence.
    III. The conversations testified to by witnesses Brown and Hawes, were not proper rebutting evidence, and immaterial.—1 Arch. N. P., 41; 1 Hill., 300; 3 Caines, 217; 12 Johns., 306; 1 Strange, 94.

    IV. The court erred in striking out the testimony of Ellen Burson, as given by witness Eletcher, and particularly for the reasons given by counsel for plaintiff.—1 Green. Ev., § 165; 10 S. & R. 14, 16; 16 Mich., 150. Her testimony showed the note was never delivered, — Goldwood’s possession of it fraudulent and ivithout consideration,— and whether the plaintiif was a Iona fide holder was a question for the jury.—3 Kent. Com., 103, 11th Ed.; 3 Johns. Cases, 259; 10 Johns., 231; 17 Mich., 500.

    V. The Court erred in refusing to charge the jury that, if this note was never delivered by the maker, or some person authorized by him, to any other person, but was fraudulenly or stealthily taken from the possession of the maker and in his absence by the payee, the note in the hands of the latter would be void.—Story on Bills, §§ 185, 187, 203; 1 Cow. T., 209; 4 Green. l, 28; 8 Vt., 94.

    VI. The Court erred in refusing to charge the jury as requested in the defendant’s third request, without modification.
    VII. The Court erred in refusing to charge the jury that such note in the hands of any other person deriving title from such payee would be void whether he gave value for it or not.—3 Caines, 217; 9 Johns., 295; 12 Do., 306.

    VIII. The Court erred in refusing to charge the jury that, if they shall find that the note in question upon its face showed, at the time the plaintiff received it of Gold-wood, or during the time Goldwood had the note, and plaintiff saw the same, that it was not properly executed and was invalid under the laws of the United States, for the want of a proper stamp, then the plaintiff cannot be considered as a “Iona fide ” holder, though he may have given value for the note.—Int. R. L., June 30, ’64, § 158; 3 Parsons on Cont., 313; Peak, 173; 4 B. & C., 235; 6 D. & R., 306; 3 Camp., 103.

    IX. The Court erred in refusing to charge the jury that if the note bears upon its face an illegal stamping by the payee therein named, and did so bear such illegal stamping at the time it was indorsed to and obtained by the plaintiff, this fact alone should have been sufficient to put the plaintiff on inquiry as to its validity when he obtained it, and if he failed to do this he cannot be deemed an innocent purchaser for value.—Story on Notes, § 197; 12 Johns., 310; 3 Kent Com., 103; 4 Mass., 370; 6 Pick., 258; 14 Pick., 268; 1 Doug., 413; 4 Hill, 442.

      J. L. Hawes, for defendant in error.
    I. No question of jurisdiction, or want of service of process, or of proof of service, was made before the Justice, and tbe defendant appeared without objection and filed his plea, notice and affidavit. Proof of service was .thereby rendered unnecessary. The appearance waived it.—Malone v. Clark, 2 Hill, 657; Swartwout v. Roddie, 5 Hill, 118.

    II. The objection to the reading of the note in evidence was equally frivolous. It had been declared on before the Justice. That note and the common counts constituted “the plaintiff’s declaration.” There was no question as to the fact that the note was filed with the Justice, and the filing of the affidavit itself showed it. But the affidavit filed was not such an one as the statute required to compel the plaintiff to prove the making of the note, and, consequently, left it admitted by the pleading. It did not deny the execution of the note, but only denied its delivery.—C. L., §§ 3714, 3767. But if it had not stood admitted on the record in Justice’s Court, both the note and a copy being in the declaration in the Circuit Court, its execution was admitted, and did not require proof, because such execution was not denied by affidavit as required by Circuit rule 79.
    That it was not properly stamped, and stamp canceled, was, also, no ground of objection, even if it had been true, to its admissibility in evidence.—Halleck v. Jaudin, 34 Cal.; 3 Par. on Cont., 313; Tobey v. Chipman, 13 Allen, 123; McGovern v. Hasback, 53 Penn., 176.

    ITT. The motion to strike out the testimony of witness Fletcher as to what Ellen Burson swore to before the Justice, was also properly granted. The witness did not claim to be able to state only the substance of what Ellen testified to; but even if he had been able to state what she swore to, the evidence was not competent as between these parties, for the reason, first, that the plaintiff was the bona fide holder of the note for value before maturity; and, second, the execution of the note being admitted by the pleading, the question of its delivery was no defense against it in the hands of a subsequent holder for value before maturity.—Story on Promissory Notes, § 191; 3 Kent Com. (11 Ed.), 97, 98.

    IV. The remaining assignments of error relate to the refusal of the Court to charge the jury as requested by defendant’s counsel, and to portions of the charge given. Two points were urged in the Court below, with considerable apparent earnestness. One that the stamp on the note was not canceled with the initials of the maker, but of the indorser. If there ever was any chance to question the validity of a note on that account, or that it cast any suspicion upon the paper, a recent decision of this Court would seem to set such doubts entirely at rest.
    The other question, as to the delivery of the note, had been long since settled. A partial or total want, or failure, or illegality of consideration, or even fraud or a defect or infirmity of title, in the person from whom he received it, is no defense to the title or bar to a recovery by a holder for value without notice before maturity.—Story on Bills, § 188; Bostwick v. Dodge, 1 Doug., 413; Outhwite v. Porter, 13 Mich., 533; Vinton v. Peck, 14 Mich., 287.

    A note is not void in the hands of an indorsee except in the instances where a statute makes it so; and if transferred before due to a bona fide holder, it cannot be shown that it has never been delivered. By making the note, and leaving where it is liable to be stolen or otherwise fraudulently put in circulation, he has enabled the fraudulent holder to impose upon the public; and if an innocent person must suffer, it should be that one who, by his acts, has enabled tbe third person to commit the fraud.—Woodhull v. Holmes, 10 Johns. R., 231; Vallet v. Parker, 6 Wend., 615; Rockwell v. Charles, 2 Hill, 499.

   Christiancy, J.

The defendant below haying appeared before the Justice and pleaded to the plaintiff’s declaration, and twice obtained adjournments of this cause, it was too late, on the trial of the appeal in the circuit, to make any objection for want of proper service of the summons. After joining issue upon the merits, it was immaterial whether there had, in fact, ever been a summons issued.

There was no error, therefore, in overruling the defendant’s objection to the introduction of evidence upon this ground.

The note declared upon was filed with the Justice at the time of declaring; and by the statute (Comp. L., § 8767,) the plaintiff was therefore entitled to read the note in evidence without proving its execution, unless defendant denied its “execution on oath” at the time of pleading.

Defendant pleaded the general issue, with a notice that he would prove that the note was obtained from him by fraud and without consideration, and other facts substantially the same as set forth in his affidavit made and filed with the plea and notice. This affidavit simply denied the delivery of the note by the defendant, or any other person on his behalf, to the payee or any other person for him, or that defendant ever placed any stamp upon it or authorized any other person to do so, or to cancel such stamp, and stated that the paper was taken from deponent’s house, in his absence from the same, by the payee, without the knowledge or consent of deponent.

It is unnecessary to determine here whether the execution of the note under this statute would include its delivery as a part of the execution; since, granting the affirmative, the signature certainly constitutes a part of its execution, and the affidavit being special, — not denying the execution generally, but merely the delivery and the affixing and canceling, of the stamp, — admits, by a very clear implication, his signature to the instrument, and clearly indicates that he intends to contest only the delivéry, the stamping and canceling of the stamp, and not his signature; otherwise, he would have denied the execution generally and brought himself within the language of the statute. The plaintiff, therefore, was not bound to prove such portion of the execution as was not denied, but admitted, viz: the signature of the defendant.

The case upon the trial stood in all respects as if the signature of the defendant had been admitted in open court. And this admission is to have at least as full effect as the clearest proof of such signature. ‘

Now proof of such signature, together with the fact that the note is in the hands of, and produced by, the plaintiff (the indorsement being proved as it was here), furnishes strong presumptive evidence of delivery by the maker to the payee; and this is, in fact, all the proof ordinarily given by the plaintiff of such delivery when the execution of the note is denied. It establishes a prima facie case upon this point; and it is for the defendant, if he contests the fact of delivery, to sustain his denial by proof.

The indorsement by the payee having been proved, there was, therefore, no error in allowing the note to be read in evidence.

We think the Court erred in striking out the testimony of the witness, Fletcher, showing what the sister of the defendant testified to on the trial of this cause before the Justice, she having since died. The ground upon' which this was stricken out seems to have been, because the witness did not recollect the precise words of the former testimony, though he stated that he recollected and gave the substance. We think the objection, under such circumstances, untenable, and that the evidence was admissible. See 1 Greenl. Mo., Sec. 166, and authorities cited. An additional ground' of objection was stated, viz: that plaintiff was shown to be a Iona fide holder of the note; but the Court could not have stricken out the evidence on this ground, as there was some evidence of circumstances tending to show he was not such Iona fide holder, and the Court left this question to the jury.

But this note was indorsed by Goldwood, the payee, to the plaintiff, before maturity, for a, valuable consideration, and, as plaintiff claims, in good faith and without notice of a want of delivery or of consideration, or any other circumstance tending to invalidate it in the hands of Gold-wood; and his evidence tended to show this, though there was evidence or some circumstances tending to show that he had notice of the circumstances under which the paper had been obtained.

There was also evidence on the part of the defendant, strongly tending to show that the note never was delivered by the defendant, but that Goldwood, to whose order it was drawn, was endeavoring to sell to the defendant a patent right, or the right of certain territory under it, and that the parties had so far progressed towards the making of an.arrangement to this end, that it was understood and verbally agreed that Goldwood was to give him a deed of certain territory, upon defendant’s executing to him a note for the amount, with some other person signing it as surety. That the parties being in the defendant’s house, and defendant’s sister being present, Goldwood wrote this note, and defendant signed it; but as a surety was to be obtained, he laid the note on the table and went out to find his uncle for that purpose, telling Goldwood, as he went out, not to touch it till he came back; but that while defendant was gone, Goldwood picked up the paper and started out doors with it; that defendant’s sister then told him to let the note be on the table till defendant should come back, to which Goldwood replied he was going to have the note, and went off with it, without giving any deed of territory or anything else for it. That the note, at this time, was not stamped, and defendant never stamped or authorized it to be stamped; that some four days after, Goldwood wrote to defendant requesting him to come immediately to Kalamazoo “and sign stamp on the note,” and saying if defendant was not there by Tuesday evening “ I shall consider that you refuse your signature, and shall act accordingly.” The evidence also tended to show that defendant called upon Goldwood about that time, while the latter had the note, and demanded it, accusing him of stealing it, to which Goldwood replied, “Never mind, we can fix that up,” and said he was ready to do as he had agreed, and wanted defendant to get another signer, and he would give him a deed of territory; but defendant said he did not want the deed, but wanted the note. Goldwood refused to return the note, or to give a deed till he got another signer.

These facts, if found by the jury, would show, not only that, the note was never delivered to the payee, and that it therefore never had a legal existence as a note between the original parties, but that there was yet no completed or binding agreement of any kind, and was not to be until defendant should choose to get a surety on the note, and the payee should give him a deed of territory. Until thus completed, the defendant had a right to retract.

As a general rule, a negotiable promissory note, like any other written contract, has no legal inception or valid existence, as such, until it has been delivered in accordance with the purpose and intent of the parties.—See Edwards on B. and N., 175, and authorities cited, and 1 Pars, on B. and N., 48 and 49, and cases cited, and see Thomas v. Watkins, 16 Wis., 549; Mahon v. Sawyer, 18 Ind., 73; Carter v. McClintock, 29 Mo., 464.

Delivery is an essential part of the making or execution of the note, and it takes effect only from delivery (for most purposes); and if this bo subsequent to the date, it takes effect from the delivery and not from the date.— 1 Pars., ubi supra. This is certainly true as between the original parties.

But negotiable paper differs from ordinary written contracts in this respect: that even a wrongful holder, between whom and . the maker or indorser the note or indorsement would not be valid, may yet transfer to an innocent party, who takes it in good faith, without notice and for value, a good title as against the maker or indorser. And the question in the present case is, how far this principle will dispense with delivery by the maker.

When a note payable to bearer, which has once become operative by delivery, has been lest or stolen from the owner, and has subsequently come to the hands of a bona fide holder for value, the latter may recover against the maker, and all indorsers on the paper when in the hands of the loser; and the loser must sustain the loss. In such a case there was a complete legal instrument; the maker is clearly liable to pay it to some one; and the question is only to whom.

But in the case before us, where the note had never been delivered, and therefore had no legal inception or existence as a note, the question is whether he is liable to pay at all, even to an innocent holder for value.

The wrongful act of a thief or a trespasser may deprive the holder of his property in a note which has once become a note, or property, by delivery, and may transfer the title to an innocent purchaser for value. But a note in the hands of the maker before delivery is not property, nor the subject of ownership, as such; it is, in law, but a blank piece of paper. Can the theft or wrongful seizure of this paper create a valid contract on the part of the maker against his will, where none existed before? There is no principle of the law of contracts upon which this can be done, unless the facts of the case are such that, in justice and fairness, as between the maker and the innocent holder, the maker ought to be estopped to deny the making and delivery of the note.

But it is urged that this case falls within the general principle which has become a maxim of law, that when one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss, must sustain it. This is a principle of manifest justice when confined within its proper limits. But the principle, as a rule, has many exceptions; and the point of difficulty in its application consists in determining what acts or conduct of the party sought to be charged, can properly be said to have “enabled the third person to occasion the loss,” within the meaning of the rule. If I leave my horse in the stable, or in the pasture, I cannot properly be said to have enabled the thief to steal him, within the meaning of this rule, because he found it possible to steal him from that particular locality. And upon examination it will be found that this rule or maxim is mainly confined to cases where the party who is made to suffer the loss, has reposed a confidence in the third person whose acts have occasioned the loss, or in some other intermediate person whose acts or negligence have enabled such third person to occasion the loss; and that the party has been held responsible for the acts of those in whom he had trusted upon grounds analogous to those which govern the relation of principal and agent; that the party thus reposing confidence in another with respect to transactions, by which the rights of others may be affected, has, .as to the persons to be thus affected, constituted the third person his agent in some sense, and having held him out as such, or trusted him with papers or indicia of ownership which have enabled him to appear to others as principal, as owner, or as possessed of certain powers, the person reposing this confidence is, as to those who have been deceived into parting with property or incurring obligations on the faith of such appearances, to be held, to the same extent as if the fact had accorded with such appearances.

Hence, to confine ourselves to the question of delivery, the authorities in reference to lost or stolen notes which have become operative by delivery, have no bearing upon the question. If the maker or indorser, before delivery to the payee, leave the note in the hands of a third person ns an escrow, to be delivered upon certain conditions only, or voluntarily deliver it to the payee, or (if payable to bearer) to any other person for a special purpose only, as to be taken to, or discounted by a particular bank, or to be carried to any particular place or person, or to be used only in a certain way, or upon certain conditions not apparent upon.the face of the paper, and the person to whom it is thus entrusted violate the confidence reposed in him, and put the note into circulation; this, though not a valid delivery as to the original parties, must, as between a dona Jide holder for value, and the maker or indorser, be treated as a delivery, rendering the note or indorsement valid in the hands of such dona fide holder; or if the note be sent by mail, and get into the wrong hands; as the party intended to deliver to some one, and selects his own mode of delivery, he must be responsible for the result. These principles are too well settled to call for the citation of authorities, and manifestly it will make no difference in this respect, if the note or indorsement were signed in blank, if' the maker or indorser part with the possession, or authorize a clerk or agent to do so, and it is done.—1 Parsons on Bills and Notes, 109 to 114, and cases cited, especially Putnam v. Sullivan, 4 Mass., 45, which was decided expressly upon the ground of the confidence reposed in the third person, as to the filling up, and in the clerks as to the delivery.

And when the maker or indorser has himself been deceived by the fraudulent acts or representations of the payee or others, and thereby induced to deliver or part with the note or indorsement, and the same is thus fraudulently obtained from him, he must, doubtless, as between him and an innocent holder for value, bear the consequences of his own credulity and want of caution. He has placed a confidence in another, and by putting the papers into his hands, has enabled him to appear as the owner, and to deceive others. Cases of this kind are numerous; but they have no bearing upon the wrongful taking from the maker, when he never voluntarily parted with the instrument. Much confusion, however, has arisen from the general language used in the books and sometimes by judges, in reference to cases where the maker has voluntarily parted with the possession, though induced to do so by fraud; when it is laid down as a general rule, that it is no defense for a maker, as against a dona fid,e holder, to show that the note was wrongfully or fraudulently obtained, without; attempting to distinguish between cases where the maker has actually and voluntarily parted with the possession of the note, and those where he has not.

We do not assert that the general rule we are discussing — that “where one of two innocent parties must suffer,” etc. — must be confined exclusively to cases where a confidence has been placed in some other person (in reference to delivery) and abused. There may be cases where the culpable negligence or recklessness of the maker in allowing an undelivered note to get into circulation, might justly estop him from setting up non-delivery; as if he were knowingly to throw it into the street, or otherwise leave it accessible to the public, with no person present to guard against its abduction under circumstances when he might reasonably apprehend that it would be likely to be taken.

Upon this principle the case of Ingham v. Primrose (7 C. B. (N. S.), 82) was decided, where the acceptor tore the bill into halves (with the intention of canceling it) and threw it into the street, and the drawer picked them up in his presence, and afterwards pasted the two pieces together and put them into circulation. See also by analogy Foster v. Mackinnon, Law Rep., 4 Com. B., 704.

But the case before us is one of a very different character, No actual delivery by the maker to any one for any purpose.

The evidence tends to show that when he left the room in his own house, the note,, being on the table, and his sister remaining there, he did not confide it to the custody of the payee, but told him not to take it, and no final agreement between them had yet been made, and no consideration given. Under such circumstances he can no more be said to have trusted it to the payee’s custody or confidence, than that he trusted his spoons or other household goods to his custody or confidence; and there was no more apparent reason to suppose he would take and carry off the one, than the other.

The maker, therefore, cannot be held responsible for any negligence; there was nothing to prove negligence, unless he was bound to suspect, and treat as a knave, a thief or a criminal, the man who came to his house apparently on business, because he afterwards proved himself to be such. This, we think, would be preposterous.

We, therefore, see no ground upon which the defendant could be held liable on a note thus obtained, even to a Iona fide holder for value. He was guilty of no more negligence than the plaintiff who took the paper, and the plaintiff shows no rights or equities superior those of the defendant.

Such, we think, must be the result upon principle. We have carefully examined the cases, English and American, and are satisfied there is no adjudged case in the English courts, so far as their reports have reached us, which would warrant a recovery in the present case. Some dicta may be found, the general language of which might sustain the liability of tho maker; such as that of Alderson Baron in Marston v. Allen (8 M. & W., 494), cited by Duer J., in Gould v. Segee, 5 Duer, 260, and that used by Williams, J., in Ingham v. Primrose, 7 C. B. (W. S.), 82. But a reference to the oases will show that no such question was involved, and that these remarks were wholly outside of the case.

On the other hand, Hall v. Wilson, 16 Barb., 548, 555, and 556, contains a dictum fully sustaining the views we have taken.

There are, however, two recent American cases, where the note or indorsement was obtained without delivery, under circumstances quite as wrongful as those in the present case, in one of which the maker, and in the other the indorser, was held liable to a bona fide holder for value: Shipley v. Carroll et al., Ill., 285 (case of maker) and Gould v. Segee, 5 Duer., 266. But in neither of these cases can we discover that the Court discussed or considered the real principle involved; and we have been unable to discover anything in the cases cited by the Court to warrant the decision. It is possible that the case in Illinois may depend somewhat upon their statute, and the note being made as a mere matter of amusement, and the making not being justified by any legitimate pending business, the maker might perhaps justly be held responsible for a higher degree of diligence, and therefore more justly chargeable with negligence under the particular circumstances, than the maker in the present case.

There is another case (Worcester Co. Bank v. Dorchester & Milton Bank, 10 Cush., 488), where bank bills were stolen from the vault of the bank, which though signed and ready for use, had never been yet issued, and on which a bona fide holder for value was held entitled to recover. This, we are inclined to think, was correct. The Court intimated a doubt whether the same rule should apply to bank bills as to ordinary promissory notes, and as to the latter, failed to make any distinction between the question of delivery and questions affecting the rights of the parties upon notes which have become effectual by delivery. But we think bank bills which circulate universally as cash, passing from hand to hand perhaps a hundred times a day, without such inquiries as are usual in the cases of ordinary promissory notes of individuals, stand upon quite different grounds. And, considering the temptations to burglars and robbers, where large masses of bank bills are known to be kept, and the much greater facility of passing them off to innocent parties, without detection or identification of the bills or the parties, and that the special business of banks is dealing in, and holding the custody of, money and bank bills; it is not unreasonable to hold them to a much higher degree of care, and to make them absolutely responsible for their safe keeping. We do not therefore regard this case as having any material bearing upon the case before us.

We think the Circuit Court erred in refusing to charge upon this point, as requested by the defendant below.

We do not think there was any error in refusing to charge that the want of a stamp on the note would be such circumstance of suspicion as to put the indorsee upon inquiry in taking the note. Under our decisions the note would be valid and could be enforced in our courts without a stamp.

Some other minor questions were raised, but we do not think they will be likely to arise upon a .new trial.

The judgment must be reversed with costs, and a new trial awarded.

The other Justices concurred.