consideration, and we hold that the case at bar is not within the rule laid down in the Harris Case, supra. It follows, therefore, that the circuit court was not in error in instructing a verdict for plaintiff.

The judgment is affirmed.

MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ., concurred.

ON REHEARING.

OSTRANDER, J. The former opinion of this court in this case is reported ante, 272 (117 N. W. 664). A rehearing was granted, and the case has again been carefully considered. The statute (2 Comp. Laws, § 6234, subd. 7) establishes a maximum rate for transporting freight by the car. A violation of this provision is asserted by plaintiff, whose right to maintain this suit is based upon the succeeding section of the statute, which reads:

"(6235) SEC. 10. Every such corporation shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, offer or be offered for transportation at the place of starting, and the junctions of other railroads, and at siding and at stopping places established for discharging and receiving way passengers and freight; and shall take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of toll, freight, or fare, legally authorized therefor; and every such corporation shall transport merchandise, wood, lumber, and other property, and persons from the various stations upon said road, without partiality or favor, when not otherwise directed by the owner of said property, and with all practicable dispatch, and in the order in which such freight and property shall have been received, under a penalty for each violation of this provision, of one hundred dollars, to be recovered by the party aggrieved, in an action of debt against such corporation: Provided, That perishable or explosive freight and property shall have the preference over all other classes of merchandise. In case of the refusal by such corporation or agents so to take and transport any such passenger or property, as aforesaid, or

to deliver the same, or either of them, without a legal or just excuse for such default, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby, with costs of suit, or the penalty prescribed in this section, at the election of the party aggrieved."

The defendant is a receiver of the railroad appointed by a Federal court. We are satisfied that no legal or just excuse for the overcharge complained about was made, and that the single question presented is whether the receiver is liable to the penalty imposed by the statute. It is said in the former opinion that this "is not a penal statute, strictly speaking, but is remedial in its effect;" and this is held to distinguish the case at bar and United States v. Harris, 177 U. S. 305 (20 Sup. Ct. 609). It is also said in the opinion that "the statute is no more penal in its nature than those which provide for the doubling of damages in cases of stock injured by railroad corporations, which have neglected to properly fence their rights of way.

It was said by this court of a statute doubling damages:

"The language and spirit of the act exclude the supposition that the legislature intended compensation or anything 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." Bay City, etc., R. Co. v. Austin, 21 Mich. 390, 411.

And in Crosby v. Railroad Co., 131 Mich. 288 (91 N. W. 124), and in Van Camp v. Railroad Co., 137 Mich. 467 (100 N. W. 771), the statute we are considering is called, and treated as, a penal statute. It is evident that

the sum of $100 which may be recovered for violation of the statute may bear no relation whatever to the actual damage suffered by the plaintiff. The case is unlike United States v. Harris, supra, in this: In that case the penalty was imposed by a statute entitled "An act to prevent cruelty to animals while in transit by railroad or other means of transportation within the United States." It was recoverable by the United States from " any company, owner or custodian of such animals who knowingly and wilfully fails to comply with the provisions.

It was held that receivers were not within the letter of the statute, and not necessarily within its purpose or spirit. The statute we are considering is the charter of the company which the receiver managed and controlled. The penalty is recoverable by, and is for the benefit of, a party aggrieved. The statute gives a private right enforced by a private civil action. In this respect it is remedial as well as penal. The public is not concerned. A liberal construction for the purpose of the remedy may be indulged, but to the extent that it operates against the offender it must be construed strictly. 2 Lewis' Sutherland on Statutory Construction (2d Ed.), § 532 et seq. The penalty is by the terms of the statute imposed upon the corporation, and is recoverable in an action of debt brought against it. The receiver is not the corporation nor its agent, but is, upon the theory of the plaintiff, the one who has incurred the penalty. It cannot be said, as matter of law, that the receiver may charge the amount of this penalty in his accounts, and have the same allowed by the court appointing him. An act of congress provides that a receiver appointed by a Federal court shall operate property committed to his charge according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. A penalty is provided for violating this provision which is made a misdemeanor. We are unable to distinguish the case in principle and the case of

United States v. Harris, supra. We reach the conclusion that the receiver is not liable, and that the judgment against him should be reversed, and no new trial granted. This conclusion is supported by authority. Missouri R. Co. v. Stoner, 5 Tex. Civ. App. 50 (23 S. W. 1020); Campbell v. Wiess (Tex. Civ. App.), 25 S. W. 1076; 16 Enc. Pl. & Pr. p. 263.

BLAIR, C. J., and GRANT, MONTGOMERY, HOOKER, MOORE, and BROOKE, JJ., concurred with OSTRANDER, J.

MCALVAY, J. I adhere to my former opinion for affirmance.

MERRINANE v. MILLER.

1. INTOXICATING LIQUORS-SURETIES ON LIQUOR BONDS.
The sureties upon a liquor dealer's bond are liable to a wife, in-
jured by the sale of intoxicating liquors to her husband, for
all damages sustained from the entire result to which such
sales contributed, although the wrongful sales extended over
a period of three years which were covered by different
bonds. 2 Comp. Laws, § 5398.

2. SAME-PRINCIPAL AND SURETY.

Sureties are not usually presumed to have incurred any liability for acts preceding the execution of their obligation.

3. PLEADINGS-APPEAL AND ERROR.

Defects in a declaration are not considered where there was no demurrer and the question was not properly raised at the trial.

4. EVIDENCE-EXPECTANCY-MORTALITY TABLES.

In determining the amount of damages, the mortality tables
are competent evidence.

157 279

8157 285

f157 313

5. DAMAGES INTOXICATING Liquors—BonDS.

Bondsmen of liquor dealers are not liable for damages in excess of the penalty of the bond which they execute.

6. JUDGMENTS-JOINT DEFENDANTS.

A judgment against joint defendants for unlawful sales of intoxicating liquors cannot be entered as to principal and sureties in different amounts.

ON REHEARING.

JUDGMENTS-PRACTICE.

On a rehearing it is held that the plaintiff is entitled to discontinue against the defendants whose bonds were less than the judgment, which is conditionally affirmed as to the principal and one surety who executed two bonds with a combined penalty in excess of the amount recovered.

Error to Jackson; Parkinson, J. Submitted June 3, 1908. (Docket No. 13.) Opinion filed November 2, 1908. Rehearing granted November 30, 1908; reargued February 10, 1909; former opinion modified July 6, 1909.

Case by Nettie Merrinane against James Fred Miller, a saloon keeper, and his bondsmen, under the civil-damage act. There was judgment for plaintiff, and defendants bring error. Affirmed conditionally.

Elmer Kirkby, for appellants.
R. S. Woodliff, for appellee.

MONTGOMERY, J. This action was brought under the civil-damage act to recover against the defendant Miller and three different sets of bondsmen for damages sustained in her means of support by the plaintiff by reason of unlawful sales of liquor to her husband, John Merrinane, during the three years beginning, respectively, May 1, 1903, May 1, 1904, and May 1, 1905. The case was before the court at a former term, and it was reversed mainly on the ground that the damages recovered were wholly inadequate. The case is reported in 148 Mich. 412 (111 N. W. 1050). On a retrial the plaintiff recovered a