An intention so to do cannot be implied, but must appear in express and unmistakable terms. A clause in a railroad charter providing what fences and other structures required for protection of life and property the company shall maintain, and when it shall provide them, is not sufficient to conclude the state from a future exercise of the police power.

To an action against a railroad company for cattle injured on the track, they having gone upon the track in consequence of its failure to construct fences, it is not a defence that the cattle were trespassers upon the land from which they passed for want of a fence to the track.

Appeal from order of district court, counties of Cottonwood and Murray, denying defendant's motion for a new trial.

E. C. Palmer, for appellant.

A. D. Perkins, for respondent.

GILFILLAN, C. J. Chapter 24, Laws of 1876, by section 1, provides that all railroad companies in this state shall, within six months after the passage of the act, build good and sufficient cattle-guards at all wagon crossings, and good and substantial fences on each side of their road. Section 2 in terms makes railroad companies liable for domestic animals killed or injured by their negligence, and it declares a failure to build and maintain cattle-guards and fences, as in the act provided, an act of negligence.

Section 3 regulates the recovery of costs for a neglect to pay damages for killing or injuring domestic animals. Section 4 provides that "any company or corporation running and operating a line of railroad within this state, and which company or corporation has failed and neglected to fence said road and to erect crossings and to maintain cattle-guards as required by the terms of its charter and the amendments thereof, shall hereafter be liable in case of litigation for treble the amount of damages suffered by any person in consequence of such neglect, to be recovered in a civil action, or actual damages if paid within ten days after notice of such damages."

This act was a re-enactment of chapter 25, Laws of 1872. The language of sections 1, 2 and 3 was broad enough to include all railroad companies in the state, and to impose on all the same duty to construct fences and cattle-guards, and the same liabilities for neglect of such duty. But section 4 referred to a certain class of companies, to-wit, those whose charter contained requirements to construct fences and cattleguards, and as to that class of companies prescribed other liabilities for failure to comply with their charters than are provided by sections 1, 2 and 3 for the companies contemplated by those sections. By reason of these peculiar fea

tures of section 4 in the act of 1872, this court, in Devine v. The St. P. & S. C. R. Co. 22 Minn. 8, held that the act related to two classes of companies-those upon whom there was no charter obligation to fence, as to which companies it created the duty to fence, and defined the liability; and those whose charters imposed the duty, as to which companies the act, leaving the duty as imposed by the charters, merely prescribed the liability incurred by a breach of such duty.

By chapter 73, Laws of 1877, § 4 of the act of 1876 was amended so as to read: "Any company or corporation operating a line of railroad in this state, and which company or corporation has failed or neglected to fence said road, and to erect crossings and cattle-guards, and maintain such fences, crossings and cattle-guards, shall hereafter be liable for all damages sustained by any person in consequence of such failure or neglect." As the act now stands there is nothing in it to indicate that any class of companies is exempt from any of its provisions.

The omission from the amended section of those matters, from which alone an intention to exempt certain companies from the operation of sections 1, 2 and 3 appeared, shows that the legislature intended to abolish the distinction between the two classes of companies made by the original act, and to subject all companies, without regard to the provisions of their charters, to the same duties and liabilities in the matter of maintaining fences, cattle-guards, etc. The case, therefore, depends on the act of 1876, as amended in 1877.

Regulating the construction and maintenance by railroad companies of fences and cattle-guards at and along their railroads is the exercise of the police power of the state. If in any case the legislature may bind the state not to exercise this power, an intention so to do cannot be implied, but must appear in express and unmistakable terms. W. & St. P. R. Co. v. Waldron, 11 Minn. 515, (Gil.) 392.

A clause in a railroad charter providing what fences and other structures required for the protection of life and property the company shall maintain, and when it shall provide them, is not of itself sufficient to conclude the state from any future exercise of the police power. The charter of defendant did not go further than this.

There is nothing in the case from which it can be held that there was negligence on the part of the plaintiff sufficient to withhold the case from the jury. It is true, the cow appears

to have strayed from plaintiff's land to the adjoining section belonging to defendant, and thence passed to the track where she was injured, and that she was unlawfully on the defendant's land, from which she passed to the track.

If the liability of defendant depended on the rules of the common law, under these circumstances, there having been no negligence in running the train, the plaintiff could not recover. But the lability is defined by the statute. Of the cases that consider statutes of this kind we think those are decided upon the better reason which hold that such statutes are police regulations designed for the protection of all, and not merely rules for constructing division fences between adjoining owners, for neglect of which only an adjoining owner may complain. See Corwin v. N. Y. & E. R. Co. 13 N. Y. 42; Shepard v. B., N. Y. & E. R. Co. 35 N. Y. 641; Browne v. R. & F. R. Co. 12 Gray, 55; Ind. & Cin. R. Co. v. Townsend, 10 Ind. 38; Spence v. C. & N. W. R. Co. 25 Iowa, 139; Stewart v. B. & M. R. Co. 32 Iowa, 561. Any person sustaining damage in consequence of a violation by the company of the regulation may recover. Order affirmed.

SUPREME COURT OF WISCONSIN.

SAMUEL KLAUBER and another, Respondents, vs. Arthur BIGGERSTAFF, Garnishee of DAVID S. SLATER, and another, Appellants.

Filed November 28, 1879.

1. The word "currency" in a certificate of deposit means money, including bank-notes issued by authority of law and in actual and general circulation at their legal standard value. RYAN, C. J., arguendo.

2. A certificate of deposit promising payment to order of a certain number of dollars "in currency" is negotiable. [Ford v. Mitchell, 15 Wis. 305; Platt v. Bank, 17 Wis. 223; and Lindsey v. McClellaud, 18 Wis. 481, explained and criticised.]

3. Chapter 5, Laws of 1868, is also construed as declaring negotiable all notes or certificates of deposit of the character above described.-[STATE REPT.

Appeal from Dane circuit court.

Gregory & Pinney, for respondents.
Smith & Lamb, for appellants.

RYAN, C. J. The controlling question in this case is whether the certificate of deposit stated in the proceedings is negotiable.

"A promissory note may be defined to be a written engagement by one person to pay another person therein named, absolutely and unconditionally, a certain sum of money at a time specified therein." Story on Prom. Notes, § 1. The ordinary form of a certificate of deposit of money falls precisely within the definition, and it seems strange that there ever was a doubt that it was in law a negotiable promissory note. O'Niel v. Bradford, 1 Pin. 390, and cases there cited. Such doubt, however, may now be considered at rest. Kilgore v. Bulkley, 14 Conn. 362; Bank v. Merrill, 2 Hill, 295; Miller v. Austen, 13 How. 218.

The learned counsel for the respondents concedes this; but he takes the position that the certificate of deposit in question is not a promissory note, because it is not payable in money. It is for so many dollars, payable in currency; and the learned counsel contends that the word currency does not express or imply money. It must be conceded that the cases in this court, (Ford v. Mitchell, 15 Wis. 305; Platt v. Bank, 17 Wis. 223; and Lindsey v. McClelland, 18 Wis. 481,) which he cites in support of his position, lend strong sanction to it.

These cases were decided, respectively, in 1862, 1863, and 1864, when the paper money, circulating in the state de facto, was of a very heterogeneous character. How much influence this fact had on those decisions, or on similar decisions elsewhere, it is impossible to say. It is, perhaps, not altogether an uncommon infirmity of judicial rules that they are made in view of exceptional conditions of things presently existing. Passing evils or exigencies should have little weight in general rules of decision. Judicial rules ought properly to be based upon the general condition of society, and to be broad enough to meet occasional derangements incident to it.

In Ford v. Mitchell the certificate of deposit was payable in "currency," and protested for non-payment. It had been received by the plaintiff upon a sale made by him to the defendant. A majority of the court concurred in the judgment, on the ground that the plaintiff might recover for the original consideration. So Dixon, C. J., who delivered the principal opinion, holds. But his opinion also holds that the defendant was liable as a guarantor by force of his indorsement of paper not negotiable. Paine and Cole, JJ., decline to express any opinion on the latter point.

In Platt v. Bank the certificate of deposit was payable in “current funds." The chief justice delivered the opinion of the court, stating that such paper had been held not to be negotiable in Ford v. Mitchell, and that the cases were not distinguishable; adding that the rule is sustained by an almost unbroken current of authority. In this the learned chief justice was not, perhaps, quite as accurate as usual; and he was manifestly mistaken in his statement of Ford v. Mitchell. Though the decision appears to have been unanimous, it plainly proceeded somewhat upon a mistake.

In Lindsey v. McClelland the certificate of deposit was payable in "current funds," and was protested for non-payment. The opinion of the court is delivered by Mr. Justice Cole, who not unnaturally falls again into the mistake that the court (in Mitchell v. Ford) had held that the words "payable in current funds" rendered the instrument not negotiable. Platt v. Bank is not cited. The opinion states that the certificate "is not payable in money, or what the court is bound to consider equivalent to money. The opinion then proceeds to show that if the certificate had been negotiable it had been protested so as to hold the defendant as indorser; and further that it had not been received in payment, imply