Mr. Chief Justice Walker

delivered the opinion of the Court:

It is insisted that appellee was not entitled to recover because he averred in his declaration that he had not, as the proprietor of the lands, erected, or agreed to erect, the fence required by the act of 1855 (Scates’ Comp. 953), when the proof shows that he did erect the fence. It also appears that the company fully admitted and recognized their liability to erect and maintain this fence, when they employed appellee, for them and with their materials furnished for the purpose, to erect the fence, and for which they paid him the sum agreed between them. Is this such an agreement as the statute contemplates shall release the road from its liability and impose it upon the owner of the adjoining land? We think not. The act imposes the duty upon the company, but at the same time permits them, by contract with the owner, to absolve themselves from its performance, by agreement with the owner that he shall assume it.

It cannot be imagined that it was the intention of the law makers to transfer this duty from the company to the land owner, simply because the company employed him as their agent or servant to construct the fence. The statute only contemplates the release of the company when the duty is assumed by the land owner, and in this case it is perfectly apparent that when he was employed to build this fence he did not intend, nor did either party suppose, that he was taking upon himself such a duty. It might as well be contended that because a hand in the employment of the company under their direction, and in discharging their duty, had built the fence, and afterwards became the owner, that the duty was transferred from the company to him. It is not probable that it ever occurred to appellee that it could be imagined that he had assumed this duty, until he heard it claimed on the trial below, or to the company and its agents until they began to prepare for the defense of this suit. The pleas of appellant, to which demurrers were sustained, only relied upon this fact as a defense, and were, therefore, insufficient, and the demurrers were properly sustained to them.

It is likewise insisted that the court erred in refusing to give appellant’s last four instructions. The first of which asserts that the company, having built a good and sufficient fence, if it was blown down or thrown down by trespassers, and loss thereby ensues, before a reasonable time had elapsed for its repair, that the company are not responsible for damages thus occasioned. This instruction, like the sixth, asserts that where the fence has been sufficient, and from accident or wrong over which the road had no control, it becomes insufficient to turn stock, they have a reasonable time within which to repair their fence. This is manifestly true, as it is not required that the company should have a patrol at all times, night and day, passing along their road to see the condition of the fence. If this is done daily, and they shall at once, when informed of its insufficient condition, make the necessary repairs, they should not be held liable. This was the rule adopted in the case of The Central Railroad Co. v. Dickerson, 27 Ill. 55, and the instructions numbered four and six should have been given.

Under these instructions, it would have been for the jury to consider, in the light of all the circumstances appearing in the case, whether reasonable care had been used to keep up the fence. Or if it had been injured, reasonable efforts had been used to repair the same. They, as practical men, must determine this question. And the road must be held to a high degree of diligence in the performance of this duty, but not to an impossible or unreasonable extent.

Whilst the fifth instruction stated the law correctly, it would have been better had it have been qualified so as to inform the jury, that while the evidence tended to prove due diligence, it was not conclusive. Properly understood by the jury, it is free from objection; but if they understood that it could not be rebutted by other evidence, or that they could not weigh it as other evidence, then it would mislead, and would have been improper.

The seventh instruction was properly refused. This action is transitory, and not local, either by the common law or the statute. The act of 1853 (Sess. Laws, p. 65) only relates to actions at law or suits in chancery, where service could not be had by summons. It, in such cases, authorized publication instead of actual service. And the sixth section of that act confined the bringing of such suits to the county in which the cause of action accrued. This is the scope of that act It was not intended to apply to cases where service could be had. The judgment of the court below must be reversed, and the cause remanded.

Judgment reversed,