Elbert, J.
The first question that presents itself in this case is one of jurisdiction.
The plaintiffs in error, who were defendants below, claim that at the time the suit was commenced they were non-residents, and that the cause of action accrued in the Territory of Wyoming. By reason of these facts, it is claimed that the justice of the peace, before whom the suit was originally brought, had no jurisdiction. This claim is based on the language of section 103 of the Justices Act, R..S. 418, which is to the effect, that suits shall be commenced before justices, in the township where the debtor resides, unless the cause of action accrued in the township of the plaintiff. The jurisdiction of justices of the peace in civil actions is statutory, and it has been uniformly held that the statute conferring the jurisdiction and prescribing its exercise must be strictly construed. It will be observed, however, as we advance, that the question in the present case is not so much as to a grant of jurisdiction, as to how far a grant, originally full and complete, is affected by a subsequent limitation. The his[182]*182tory of an act is properly consulted with a view to its just interpretation. Section one of the Justices Act confers jurisdiction on justices of the peace in a large number of enumerated cases, unconditionally, except in the matter of the amount claimed. This section was a part of an act, passed in 1861, at the first session of the legislature, and remained thus unqualified until the second session, when what is now section 103 was added by way of amendment. Subsequently both sections were embraced in the revision of 1868. Prior to the amendment, undoubtedly, both resident and nonresident debtors could have been impleaded wherever found. In the abuse of this power, or at least in its liability to abuse, the provisions of section 103 had their origin. Debtors were sued in tribunals distant from their places of residence, and the cost and vexation of litigation were thereby unnecessarily and oppressively increased. As a security against such abuses this section was adopted, giving resident debtors a forum at their own doors.
Such considerations, however, would not apply to the case of a non-resident debtor, unless the State should forego all jurisdiction of his person, and in all of its tribunals. The hardship with him was not in being sued in*a justice’s court, but in being sued in any court. When a resident debtor pleads the provisions of this section he ousts the jurisdiction of the particular justice, but may still be sued in the proper township. Could a non-resident debtor plead its provisions, he would not only oust the jurisdiction of the particular justice, but of any justice, and could not be sued at all in a justice’s court, unless in the township of the plaintiff. This would be to give the non-resident debtor a preference over our own citizens, that we do not think the legislature intended. Both as a limitation on section one of this act, and as in derogation of the common law rule, that debts as such have no locus or situs, but accompany the creditor everywhere, and authorize a demand on the debtor everywhere, we think the section must be construed strictly. From these considerations, as well as from the language employed, we [183]*183think the section cannot be held to apply to non-resident debtors. Itsays: “ Suits shall be commenced before justices in the township in which the debtor, or person sued, resides,” etc. This describes a class of debtors, that is to say, resident debtors. To such only is the language used applicable, and such only can avail themselves of its provisions. Residence cannot be predicated of non-residents, and such are not only not included, but ex vi termini, are excluded, from the intention and meaning of the act. With respect to them,“the jurisdiction stands as before the limitation was adopted, and they may be sued wherever found. Nor is this view regarded as in conflict with any thing said by the court in the case of Melvin v. Latshaw, 2 Col. 80, where the same section came under consideration.
It is sought to charge'the defendant below; upon an alleged promise to pay for goods before contracted for by one Heenan. As some stress is laid on the fact that the promise was made before the goods were shipped, it is well to say at the outset that all promises to answer for the debt or default of a third person must be in writing, whether the promise be made before, at the time, or after the debt or liability is created. Maloney v. Gillett, 21 N. Y. 412.
Standing alone and uncontrolled by circumstances showing a contrary intent, the words “ we will see the articles paid for,” or equivalent words, import a collateral undertaking, and are within the statute of frauds. Throop on Verbal Agreements, § 197 et seq.; Watkins v. Perkins, 1 Lord Raymond, 224; Skinner v. Conant, 2 Vermont, 453; Twarts v. Crul, 6 B. Monroe, 472; Cahill v. Bigelow, 18 Pick. 369.
Looking to the circumstances of the case for something that will authorize a different construction, we find that credit does not appear to have been given to any one. By the original contract between the plaintiffs and Heenan, no time of payment was fixed, and the presumption in such case is that payment and delivery were to be concurrent. Benjamin on Sales, § 677.
[184]*184The object of the negotiations of defendants seems to have been not to obtain credit for Heenan or themselves, but to secure shipment of- the goods. Their promise, if original, was to pay for the goods on delivery, if collateral, to answer for the default of Heenan should he not pay on delivery.
The goods were shipped to the agent of plaintiffs, and marked C. O. D. These initials have a well-known commercial meaning, and show clearly that the plaintiffs did not intend to give credit to any one. Their purpose is manifest to retain control of the goods and thereby secure themselves against the default of either Heenan or the defendants. Delivery to the carrier, therefore, was not delivery to the buyer, and the jus disponendi remained in the vendors. Benjamin on Sales, § 382 et seq.
We cannot say, therefore, that credit, in the ordinary acceptation of the term, was given to either Heenan or the defendants, and this inquiry, which is always resorted to as a means of determining the original or collateral character of the undertaking^ does not avail us. The book entry and bill were both in Heenan’s name, and standing alone, prima facie, are an admission that the goods were furnished on Heenan’s credit. 1 Greenleaf, § 196.
Considered, however, with reference to the foregoing facts, while they do not show a credit given, they tend strongly to show that Heenan was regarded by the plaintiffs, at the date of the shipment, as the original contracting party; that the goods were shipped on Ms order, and not on a subsequent order of defendants; and that the defendants had in no wise been substituted or considered as original promisors. In this respect, therefore, both book entry and bill confirm the collateral character of the undertaking by the defendants.
The fact that the defendants, one or both, were present with Heenan when Woodbury found the goods at the store, which Heenan was building, cannot be considered as of any weight in the present inquiry touching the collateral character of the promise. It was their duty, certainly their
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Elbert, J.
The first question that presents itself in this case is one of jurisdiction.
The plaintiffs in error, who were defendants below, claim that at the time the suit was commenced they were non-residents, and that the cause of action accrued in the Territory of Wyoming. By reason of these facts, it is claimed that the justice of the peace, before whom the suit was originally brought, had no jurisdiction. This claim is based on the language of section 103 of the Justices Act, R..S. 418, which is to the effect, that suits shall be commenced before justices, in the township where the debtor resides, unless the cause of action accrued in the township of the plaintiff. The jurisdiction of justices of the peace in civil actions is statutory, and it has been uniformly held that the statute conferring the jurisdiction and prescribing its exercise must be strictly construed. It will be observed, however, as we advance, that the question in the present case is not so much as to a grant of jurisdiction, as to how far a grant, originally full and complete, is affected by a subsequent limitation. The his[182]*182tory of an act is properly consulted with a view to its just interpretation. Section one of the Justices Act confers jurisdiction on justices of the peace in a large number of enumerated cases, unconditionally, except in the matter of the amount claimed. This section was a part of an act, passed in 1861, at the first session of the legislature, and remained thus unqualified until the second session, when what is now section 103 was added by way of amendment. Subsequently both sections were embraced in the revision of 1868. Prior to the amendment, undoubtedly, both resident and nonresident debtors could have been impleaded wherever found. In the abuse of this power, or at least in its liability to abuse, the provisions of section 103 had their origin. Debtors were sued in tribunals distant from their places of residence, and the cost and vexation of litigation were thereby unnecessarily and oppressively increased. As a security against such abuses this section was adopted, giving resident debtors a forum at their own doors.
Such considerations, however, would not apply to the case of a non-resident debtor, unless the State should forego all jurisdiction of his person, and in all of its tribunals. The hardship with him was not in being sued in*a justice’s court, but in being sued in any court. When a resident debtor pleads the provisions of this section he ousts the jurisdiction of the particular justice, but may still be sued in the proper township. Could a non-resident debtor plead its provisions, he would not only oust the jurisdiction of the particular justice, but of any justice, and could not be sued at all in a justice’s court, unless in the township of the plaintiff. This would be to give the non-resident debtor a preference over our own citizens, that we do not think the legislature intended. Both as a limitation on section one of this act, and as in derogation of the common law rule, that debts as such have no locus or situs, but accompany the creditor everywhere, and authorize a demand on the debtor everywhere, we think the section must be construed strictly. From these considerations, as well as from the language employed, we [183]*183think the section cannot be held to apply to non-resident debtors. Itsays: “ Suits shall be commenced before justices in the township in which the debtor, or person sued, resides,” etc. This describes a class of debtors, that is to say, resident debtors. To such only is the language used applicable, and such only can avail themselves of its provisions. Residence cannot be predicated of non-residents, and such are not only not included, but ex vi termini, are excluded, from the intention and meaning of the act. With respect to them,“the jurisdiction stands as before the limitation was adopted, and they may be sued wherever found. Nor is this view regarded as in conflict with any thing said by the court in the case of Melvin v. Latshaw, 2 Col. 80, where the same section came under consideration.
It is sought to charge'the defendant below; upon an alleged promise to pay for goods before contracted for by one Heenan. As some stress is laid on the fact that the promise was made before the goods were shipped, it is well to say at the outset that all promises to answer for the debt or default of a third person must be in writing, whether the promise be made before, at the time, or after the debt or liability is created. Maloney v. Gillett, 21 N. Y. 412.
Standing alone and uncontrolled by circumstances showing a contrary intent, the words “ we will see the articles paid for,” or equivalent words, import a collateral undertaking, and are within the statute of frauds. Throop on Verbal Agreements, § 197 et seq.; Watkins v. Perkins, 1 Lord Raymond, 224; Skinner v. Conant, 2 Vermont, 453; Twarts v. Crul, 6 B. Monroe, 472; Cahill v. Bigelow, 18 Pick. 369.
Looking to the circumstances of the case for something that will authorize a different construction, we find that credit does not appear to have been given to any one. By the original contract between the plaintiffs and Heenan, no time of payment was fixed, and the presumption in such case is that payment and delivery were to be concurrent. Benjamin on Sales, § 677.
[184]*184The object of the negotiations of defendants seems to have been not to obtain credit for Heenan or themselves, but to secure shipment of- the goods. Their promise, if original, was to pay for the goods on delivery, if collateral, to answer for the default of Heenan should he not pay on delivery.
The goods were shipped to the agent of plaintiffs, and marked C. O. D. These initials have a well-known commercial meaning, and show clearly that the plaintiffs did not intend to give credit to any one. Their purpose is manifest to retain control of the goods and thereby secure themselves against the default of either Heenan or the defendants. Delivery to the carrier, therefore, was not delivery to the buyer, and the jus disponendi remained in the vendors. Benjamin on Sales, § 382 et seq.
We cannot say, therefore, that credit, in the ordinary acceptation of the term, was given to either Heenan or the defendants, and this inquiry, which is always resorted to as a means of determining the original or collateral character of the undertaking^ does not avail us. The book entry and bill were both in Heenan’s name, and standing alone, prima facie, are an admission that the goods were furnished on Heenan’s credit. 1 Greenleaf, § 196.
Considered, however, with reference to the foregoing facts, while they do not show a credit given, they tend strongly to show that Heenan was regarded by the plaintiffs, at the date of the shipment, as the original contracting party; that the goods were shipped on Ms order, and not on a subsequent order of defendants; and that the defendants had in no wise been substituted or considered as original promisors. In this respect, therefore, both book entry and bill confirm the collateral character of the undertaking by the defendants.
The fact that the defendants, one or both, were present with Heenan when Woodbury found the goods at the store, which Heenan was building, cannot be considered as of any weight in the present inquiry touching the collateral character of the promise. It was their duty, certainly their [185]*185right to be there, looking after their interests as owners. It cannot be said that owners under such circumstances must absent themselves, and forego the oversight of their interests, under penalty of being charged with the debts, and on the contracts of their builders.
A circumstance of more importance is the fact that the defendants, when the bill was presented for payment, objected on other grounds than not being liable, and it is insisted that this is to be taken as an admission of their liability. Whatever may be the force of this circumstance in some aspects of the case, its bearing on the language of the promise made by the defendants is at best remote, and of necessity by a series of presumptions more or less forced, and all founded, not on what the defendants said, but on what they failed to say. We infer their liability from their failure to deny it. This is permissible under certain circumstances. 1 G-reenleaf, § 197 .et seq. But we go further, and infer that it was an admission of an original, and not a collateral liability; that it was an admission that they regarded their previous promise in the light of an original undertaking, notwithstanding the plain collateral import of its language. Such ground is too uncertain for either judge or jury to tread with safety. It would be to open the door to all the mischief sought to be avoided by the statute.
• The foregoing considerations equally apply, whether the plaintiffs proceed upon the theory that there was a delivery to the defendants, as original promisors, or a delivery to Heenan, upon the credit of the defendants.
They are also applicable in determining Heenan’s liability, the rule being, that if the third person is liable at all the promisor’s undertaking is collateral. Throop on Yerb. Agr., §§ 147 and 178, and cases cited.
There was no controversy about the words of the promise, nor was there any circumstance but what strengthened their collateral import.
Whether under all the circumstances it should have been left to the jury to determine whether the promise was original or collateral, is a question upon which the court is not [186]*186agreed. The rule is that where the court can clearly ascertain from the testimony what the words were, the determination of their meaning, and the nature of the contract which they create, is to be made as a matter of law. Where the law assigns to the words a prima fade meaning only, and there is some evidence of their having been used in a different sense, then it is a question for the jury. Throop on Verb. Agr., § 188.
Clearly the jury should have been instructed as to the character of the words used as a matter of law, and the necessity of evidence to overcome their prima fade force. The rights of the defendants were under the protection of this rule, of which they did not receive the benefit, and which the court failed to explain or apply. In the absence of this the second instruction given for the plaintiffs was calculated to lead the jury to believe that the words used imported an original undertaking, and in the instructions given by the court upon its own motion, the phraseology of the promise is lost sight of, and they are framed as though there was an absolute promise to pay on the part of the defendants, in evidence. In this respect the instructions were erroneous.
It remains to consider another aspect of the case.
If there was a conversion, the plaintiff could. waive the tort and recover as in assumpsit. 1 Chitty’s Pleadings, 107, (d), (1). 2Greenleaf’s Ev. 89, (5). Butin this case, it would be incumbent on the plaintiffs to show a conversion by defendants.
There is no direct proof on this point, and how far the facts and circumstances of the case go to show the liability of the defendants, in this view, it is unnecessary to consider.
The controversy seems to have been over the character of the special promise, and of the many instructions given to the jury, but one went to the right of the plaintiffs to recover as in case of a conversion, and that but imperfectly In such case, the measure of damages would be the value of the goods at the place of delivery. If we were authorized to presume that the verdict of the jury was founded on [187]*187the conversion of the goods by the defendants, there was no evidence of their market valne at Laramie City, the place of delivery. The instruction of the court, therefore, as to the measure of damages, was erroneous.
The judgment of the court below is reversed, with costs, and the case remanded for a new trial.
Reversed.