The bill of exceptions is not certified to contain all the evidence given on the trial, and therefore the findings of fact by the judge cannot be reviewed. We must take the facts as found, and cannot look into the evidence to see whether they were supported. We can, however, examine the conclusions of law, to determine how far the facts found sustain them. A proper exception for this purpose was taken, and upon that exception we think the plaintiff must prevail. There is nothing in the facts found to sustain the conclusion “of •unlawful maintenance at the common law by the attorney who has prosecuted the action since and including its revival in the name of the present plaintiff.” Such was the conclusion of law, and for that reason the complaint was dismissed. The facts found, and the evidence in support of them, some parts of which are recited in the finding, may tend to show that the action is not prosecuted in the name of the real party in interest, but they have no tendency whatever to show maintenance. It is stated in the finding that the plaintiff’s attorney, Mr. Mariner, “ offered no proof at the trial as to his retainer, if any, or for whom he appeared, and on being asked so to state on the argument, declined to state.” This was no proof that Mr. Mariner had not been lawfully retained by some person claiming to own the note and mortgage, and claiming the right to prosecute the action in the name of the plaintiff, Mrs. Andrews.
There was evidence given on the trial tending to show that the plaintiff’s intestate, Jesse Andrews, owned or claimed to own the note and mortgage in his lifetime, and probably when the action was commenced in his name before his decease, though it would appear that he had parted with his title or interest before his death, but to whom or under what circumstances, was not shown so far as the bill of exceptions discloses. In case of the transfer of a chose in action pending suit upon it, the statute provides that the action shall be continued in the name, of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action, *2332 Tay. Sts., 1572, § 1. It was not found by the court, nor does the record sbow, that any evidence was given tending to prove that Mr. Mariner bad not been employed by the real party in interest to revive and prosecute the action. If Mr. Mariner bad been so employed, then, tbougbbe made a mistake in supposing the action could be revived and prosecuted in the name of the administratrix, still it would not be maintenance on bis part. We need not determine, therefore, whether or not the action was properly so revived and prosecuted in the name of the administratrix, in case the note and mortgage were transferred by her intestate after the action was commenced, and before bis death, and we do not decide that question. It is enough for our present purposes that even if the action were not properly so revived, or even if the deceased, Jesse Andrews, never owned the note and mortgage at all, and the action was wrongly commenced in bis name, these facts have no tendency to-sustain the charges of maintenance. It appears from the facts found, and from the deposition of the plaintiff contained in the record, that she knew of and acquiesced in the revival and prosecution of the action in her name, so that it was not maintenance so far as she was concerned. At least her testimony, recited and relied upon in the finding of the court, fails to estabbsb maintenance. Maintenance is defined to be an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it. Burrill’s Law Dic. Tit. Maintenance; 4 Bl. Com., 134.
The burden of showing such offense in the prosecution of this action was upon the defendants. The case is not one, like ejectment, requiring the attorney for the plaintiff to produce bis authority to appear and prosecute or to show that be has been retained. His appearance is 'prima facie evidence of bis authority and retainer until some contrary proof is made. There was no such proof, or, at the most, the finding fails to state it or the record to disclose it. The recital that “ Mr. Mar*234iner offered no proof at the trial as to bis retainer ” goes, therefore, for nothing. The question is what proof was offered on the other side to show that he had not been retained, and the finding shows none. It is found that he declined to answer a question put to him on argument upon this subject. He had a perfect right so to decline and his refusal under such circumstances proved nothing, so far as this court can perceive, except the mere fact that he so refused. The conclusion of law of the court being therefore erroneous upon the facts found, the judgment must be reversed, and inasmuch as there has been no consideration or determination of the case upon its merits by the circuit court, and as we have not all the testimony before us or it is not so certified, we think the cause must be remanded for a new trial in that court.
Counsel for the plaintiff has discussed at some length the merits of the several defenses contained in the answer and especially of the second defense. It may not be proper for us at this time to give expression to any definite or final opinion, on the question of law arising upon the facts stated in that defense, which it seems were sustained on the trial by some testimony of quite a strong and positive character. That question is, whether a note and mortgage, deposited in escrow, and after-wards purloined from the depository, or furtively taken and put in circulation without his knowledge or consent, or the knowledge or consent of the maker, and without the terms and conditions of the deposit having been complied with, is valid in the hands of a purchaser or assignee for value without notice. The question thus presented, differs from that involved where commercial paper once delivered has been purloined or'wrongfully taken from the owner, and passed to the hands of a Iona fide holder for value. It relates to the inception or legal existence of the paper itself, and involves the inquiry, whether the act of purloining or taking wrongful possession of it by the payee or any third person, can be substituted for a delivery by the maker, which the law in general holds must be voluntary on *235Ms part, in order to create a valid instrument for any purpose. This question has undergone very thorough examination within the last two or three years, in some of the English courts and in the courts of several of the states, and three cases of the kind have arisen and been decided by this court, Ebert, v. Walker, 29 Wis., Kellogg v. Steiner, 29 Wis., Tisher v. Beckwith, ante, p. 55. The authorities are collected in the case first referred to and note, but attention is particularly directed to the case of Bruson v. Huntington, 21 Mich., 415, 4 Am. R., 497. It is enough to say on this occasion that the tendency of these decisions, seems to be decidedly against the position assumed by counsel for the plaintiff.
The question whether Mr. Meacham, the depository, was in such sense an agent of the company, that delivery in escrow could not be made to him, is not ruled by the case of Patterson v. Ball, 19 Wis., 243, or that of Truman v. McCollum, 20 Wis., 360. He appears to have been one of the directors of the railroad company, and to have received some authority from the board in respect to soliciting this mortgage with others, but the precise nature or extent of his agency is not shown. His merely being a director would not have prevented his receiving the note and mortgage as an escrow, nor would a limited or quasi agency have done so. Beloit and Madison R. R. Co. v. Palmer, 19 Wis., 574. He testified that he never delivered the papers to the railroad company or to “ any of its agents,” but that they were purloined from him after, as he thinks, he had resigned his directorship, and when he held no official or other relation towards the company. If this is true, then there would have been no objection to his holding them in escrow at the time they are alleged to have been purloined.
These remarks upon the two latter points, urged by .counsel for the plaintiff (for we have been favored with no brief or argument on the part of the defendants), are not made with a view of deciding the questions, but more especially to invite attention to them, and, if possible, to aid in the trial and proper de*236termination of tbe case wben it comes up again in tbe court below.
By the Court— Judgment reversed and cause remanded for a new trial as above indicated.