or holding over under an existing lease; it is the creation of a new tenancy. And it follows that whatever was a part of the freehold when the lessee accepted and began his occupation under the new lease, must be delivered up at the end of the term, and cannot be severed on the ground that it was put in as a trade fixture, under a previous lease which has expired. The failure of the lessee to exercise his right to remove during the former term, or to reserve it in his new contract, precludes him from denying the title of his landlord to the estate and the fixtures annexed which have become part of it. The occupation under the new lease is in effect a surrender of the premises to the landlord under the old.

This view is supported by the authorities. The earliest case on the subject is Fitzherbert v. Shaw, 1 H. Black. 258. A purchaser of lands, having brought ejectment against a tenant from year to year, the parties entered into an agreement that judgment should be signed for the plaintiff with a stay of execution for a given period, and it was held that the tenant could not, during the interval, remove the fixtures erected during the term and before action brought, on the ground that the tenant could do no act to alter the premises in the meantime, but they must be delivered up in the same situation they were in when the agreement was made and the judgment signed. This case was followed in Heap v. Barton, 12 C. B. N. S. 274, where there was a similar agreement, and Jervis, C. J., said: "that if the tenants meant to avail themselves of their continuance in possession, they should have said so." In Thresher v. Proprietors of the East London Water Works, 2 B. & C. 608, it was held that a lessee who had erected fixtures for purposes of trade on the premises, and afterwards took a new lease to commence at the expiration of the former one, which contained a covenant to repair, would be bound to repair the fixtures unless strong circumstances are shown that they were not intended to pass under the general words of the second demise; and a doubt was expressed whether any circumstances, dehors the deed, can be alleged to show that they were not intended to pass.

The case of Shepard v. Spaulding, 4 Met. 416. touches the question. A lessee erected a building on the demises premises, which he had a right to remove but surrendered his interest to the lessor without reservation; afterwards he took another lease of the premises from the same lessor, but it was held that his right to remove did not revive. When the new lease was made, it was of the whole estate including the building. This differs from the case at bar only in the fact that there was an interval between the surrender of the interest under the first lease and the granting of the second when the lessor was in actual possession. But the acceptance of the new lease and occupation under it are equivalent to a surrender of the premises at the end of the term. In Loughran v. Ross, 45 N. Y. 792, it was held that if a tenant, having a right to remove fixtures erected by him on the demised premises, accepts a new lease of such premises, including the buildings, without

reservation or mention of any claim to the buildings, and enters upon a new term thereunder, the right to removal is lost, notwithstanding his occupation has been continuous. See Abell v. Williams, 3 Daly, 17; Merritt v. Judd,14 Cal. 49; Ingerman v. Bovei, 19 Cal. 354; Taylor on Landlord and Tenant, § 550; Elwes v. Mawe, 3 East 38; 2 Smith's L. C., 7 Am. Ed. 228, 245, 257.

We are therefore of the opinion that the defendant had no right to remove any trade fixtures during the second term placed there during the first, If any of the articles named were movable chattels, as the defendant contends, the plaintiff cannot recover for them, but if they were permanent or trade fixtures, the plaintiff may recover for their removal.

1. CONSTITUTIONALITY OF PUNITIVE DAMAGES.— An award of punitive damages for a tort which is also punishable as a crime, is not in violation of the constitutional provision that no person, for the same offense shall be twice put in jeopardy of punishment; and the rule allowing such damages should not now be abrogated or modified in this state, except by legislation. Prov ocation of an assault, though not sufficient for justification, may go to exclude exemplary damages.

2. REMARKS OF COUNSEL WHEN GROUND FOR REVERSAL.-If counsel, against objection, persevere in arguing to the jury upon pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence, this, on exceptions duly taken, may be good ground for a new trial, or for a reversal; and the judgment herein is reversed on such ground.

3. A WAIVER OF THE OPENING ARGUMENT to the jury, by the plaintiff's counsel, if it leaves him the closing argument at all, confines it to a strict reply; but quære, whether a mere violation of this rule, excepted to, would be sufficient to reverse a judgment.

4. AN INDECENT EXPOSURE, PERMITTED on the trial, censured by the court.

Action to recover damages for injuries inflicted on the plaintiff by the defendant. On the 19th of July, 1876, the plaintiff, a resident of Baraboo, Sauk county, was on the platform of the Northwestern Railroad Company's station at that place, without, as it appears from the evidence, having any business there. The defendant, the superintendent of the railroad, drove up to the platform in a carriage and seeing a crowd of men on the platform ordered them to leave. Nearly all of them obeyed, but the plaintiff refused, and accompanied

his refusal with an obscene epithet. The defendant thereupon went up to the plaintiff and a scuffle ensued in which the injuries complained of were received. The evidence was conflicting as to the number of blows struck and as to whether the plaintiff struck the defendant.

The complaint alleges that on the 19th of July, 1876, at Baraboo, Sauk county, the defendant without any cause or provocation whatever, with force and arms, assaulted the said plaintiff and with great force and violence struck him three fearful and dangerous blows upon the head, over and above the right eye, and then and there gave and struck the plaintiff a great many other very violent blows upon the head, breast, and other parts of the body, and also then and there with great force and violence shook and pulled about the said plaintiff and threw him upon the sidewalk, and also then and there jumped upon and kicked the plaintiff in his private parts, greatly injuring one of his testicles, and then and there gave and struck the plaintiff many other severe and dangerous blows and strokes. The answer of the defendant denies that the plaintiff had sustained anything more than nominal damages, and alleged that the assault was provoked by the language and conduct of the plaintiff, and that whatever trespasses the defendant committed were done suddenly and in the heat of passion, wrongfully aroused by the plaintiff.

On the trial the defendant's counsel excepted, amongst others, to the fourth Instruction given to the court which, was: 4th. If the injury was inflicted by defendant upon the person of the plaintiff under circumstances of aggravation, insult or contumely, with vindictiveness, wantonness or malice on the defendant's part, the jury are authorized to impose damages over and above those heretofore indicated, which are denominated actual or compensatory damages, as a punishment to defendant and as a warning and example to himself and others. These are what are denominated punitory or exemplary damages."

Counsel on the part of the plaintiff waived his opening argument to the jury, and notwithstanding a notice to him by the defendant's counsel that he should insist that in his closing argument to the jury he should keep within the record, and that if he went outside of that the defendant should take exception, remarked to the jury: "The defendant, Swineford, has the use of the Chicago & Northwestern Railroad to carry his witnesses to and from Sparta. He issued passes to his witnesses, while poor Brown was obliged to pay the fare of each and every witness he had." The defendant's counsel objecting to these remarks the court ordered the counsel to confine himself to the evidence. Afterwards the plaintiff's counsel resumed his remarks to the jury, and said: "Well, there is evidence that he is superintendent of the railroad, and this very afternoon a special train left this village for the sole purpose of carrying the defendant's witnesses to their homes; and if Swineford has power to send special trains wherever he wants to, I guess he has power to issue passes. I don't think there will be much doubt of that." To

which remarks of counsel and want of action on the part of the court in not preventing them, counsel for the defendant did then and there except. After, and notwithstanding the aforesaid objection of defendant's counsel and the admonition and ruling of the court that the counsel should confine himself to a fair discussion of the evidence and keep within the record, the plaintiff's counsel in a subsequent part of his argument to the jury commented to the jury upon the connection of the defendant, Swineford, with the railroad company, upon the superior power, wealth and influence as compared with the plaintiff, of the said company as a great corporation, and the defendant's ability, on account of his connection therewith, to pay any judgment that might be rendered against him in the action.

The jury rendered a verdict in favor of the plaintiff for $750. Defendant appeals.

Appeal from the Circuit Court of Monroe County.

W. F. Vilas and C: C. Remington, for appellant; Chas. R. Gill and R. M. Bashford, for respondent.

RYAN, C. J., delivered the opinion of the court; The court would be wanting in self-respect to decide this appeal without some word of censure for an indecency committed on the trial. During his examination as a witness, the respondent was permitted, without apparent objection by court or counsel, to uncover and exhibit to the jury his organs of generation. No such indecency is ever necessary, or should be tolerated in any court. If the condition of any private part of the body of any party, male or female, is material on any trial, it should be privately examined by experts out of court, and expert testimony be given of it. Such an exposure as was made in this case, if made without leave of the court, might well be punished as a contempt; made with the sanction of the court, it is none the less improper and indecent, well calculated to disgrace the administration of justice and to bring it into ridicule, if not into contempt. It is hoped that this court may never have another occasion for such censure.

A very able and solemn appeal was made to the court, to exclude the rule of exemplary damages in actions of tort, when the tort is punishable as a crime. The position was founded upon the clause in sec. 8, art. 2 of the constitution, that no person, for the same offense, shall be twice put in jeopardy of punishment. It was argued with very great force that punitory damages, given in the right of the public, in addition to full compensation of the sufferer by an act which is at once a tort and a crime, as in this case, and in McWilliams v. Bragg, 3 Wis. 424, and Birchard v. Booth, 4 Wis. 67, subjects the tort-feasor to punishment twice for the same offense. And it might have been added that, while the statute limits the pecuniary fine upon criminal prosecution for such an act, there is but vague limit to the punitory damages which a jury may find in a civil action. It certainly appears to be an incongruity, that one may be punished by the public for crime upon criminal prosecution, by fine limited by statute, and again punished in favor of the sufferer, but in right of the public, for the

same act, by punitory damages, with little limit but the discretion of a jury. This is but another illustration of what appears to be the incongruity of the entire rule of exemplary damages.

On this subject the writer adheres to what he said in Bass v. Railway Co., 42 Wis. 672, confirmed by comments which he has seen upon it in legal periodicals. And he believes that his views of punitory damages, as an original question, are sanctioned by every present member of the court.

The particular view of the rule now insisted on was overlooked in McWilliams v. Bragg, Birchard v. Booth, and all the cases in this court, in which the action was against the actual tort-feasor, subject to the criminal conviction for the act. In Railroad Co. v. Finney, 10 Wis. 388; Bass v. Railway Co., 36 Wis. 450, s. c. 42 Wis. 654; Craker v. Railway Co., 36 Wis. 657, and other cases where the action was against the master for the tort of the servant, it could not well arise. So far, therefore, it is a question of first impression here; and the court congratulates itself that it arises first in a case thoroughly discussed by able counsel on both sides.

It would have been no subject of regret to the court if the obligation of the constitution called upon it to abridge the application of the rule. But the court is unable to hold that the constitutional provision has any controlling bearing on the question. The constitution only re-enacts what was the general, if not literally universal, rule at common law. See authorities collected in 1 Bishop Crim. Law, secs. 980-987. The word jeopardy is therefore used in the constitution in its defined, techical sense at the common law. And in this use it is applied only to strictly criminal prosecutious by indictment,information or otherwise. Commonwealth v. Cook, 6 Ser. & R. 577; State v. McKee, 1 Bailey, 651; People v. Goodwin, 18 Johns, 187; U. S. v. Gilbert, 2 Sumner, 19; U. S. v. Haskell, 4 Wash. 402. See also State v. Crane, 4 Wis. 400. The cases generally hold that the rule in criminal cases, that one shall not twice be put in jeopardy, implies more than a bar of a judgment to an action for the same cause. But no case is known where a conviction upon an indictment has been held a bar to a civil action for damages growing out of the same act; a fortiori, none in which a recovery in a civil action has been held a bar to an indictment for the same act. And the whole purview of section 8 plainly shows that the putting in jeopardy prohibited is confined to criminal prosecutions. Indeed, this is manifest in the clause itself, which is confined to the same offense, used in the same sense as criminal offense, in the first clause of the section. Of course the same act may be an offense (in the sense of crime) against the state, and an offense (in the sense of tort) against a private person. It is manifest that judgment for the one is not a bar to the other. And it might be difficult, in principle, to hold a criminal conviction as a bar to the recovery of punitory damages in a civil action, and not a bar to the recovery of compensatory damages; not a bar to any civil action. See Jacks v. Bell, 3 C. & P. 316.

The radical difficulty in the position of counsel

appears to be, that judgment for the criminal offense is for the offense against the public; judgment for the tort is for the offense against the private sufferer; that though punitory damages go in the right of the public for example, they do not go by way of public punishment, but by way of private damages for the act as a tort, and not as a crime, to the private sufferer and not to the state. Though they are allowed beyond compensation of the private sufferer, they still go to him for himself, as damages allowed to him by law in addition to his actual damages; like the double and treble damages sometimes allowed by statute. Considered as strictly punitory, the damages are for the punishment of the private tort, not of the public crime. It is unfortunate that damages should ever have been suffered to go beyond actual compensation, under a liberal rule like that given in Craker v. Railway Co., 36 Wis. 657. But the rule so long and so generally established is a sin against sound judicial principle, not against the constitution.

And so the constitutional provision makes no exception to the rule of exemplary damages, although it adds great force to the weight of argument against the soundness of the rule generally.

A different view appears to prevail elsewhere. Fay v. Parker, 53 N. H. 342. This is certainly, as an editor of Professor Greenleaf's work remarks, a very elaborate and able discussion of the subject; it is a very elaborate and able criticism of the cases sustaining the rule of punitory damages, and argument against the rule in any case. To the same effect are Taber v. Hutson, 5 Ind. 322; Butle v. Mercer, 14 Ind. 479; Nossaman v. Rickert, 18 Ind. 350; Humphries v. Johnson, 20 Ind. 190; Austin v. Wilson, 4 Cush. 275 But these cases fail to satisfy this court that it is wrong in the construction here given to the constitutional provision in question. And Chiles v. Drake, 2 Met. (Ky.) 146, and Hendrickson v. Kingsbury, 21 Iowa, 379, well considered cases, in very satisfactory discussions, come to the same conclusion as this court, and strongly confirm it.

The argument and consideration of this case have gone to confirm the present members of this court in their disapprobation of the rule of exemplary damages which they have inherited. But they fear to complicate the difficulties and incongruities of the rule by the exception urged, and do not feel at liberty to change or modify the rule at so late a day, against the general authority elsewhere. As suggested in Bass v. Railway Co., if a change should now be made, it lies with the legislature rather than the court, to abrogate or modify a rule running through the entire body of the reports of this state. As was once well observed, courts can not be always inquiring into the original justice or wisdom of rules long established and accepted.

After all, the distinction between compensatory damages for wounded feelings, sense of insult, etc. and punitory damages, is something very vague, as may be seen by comparison of Wilson v. Young, 31 Wis. 574, and Craker v. Railway Co., 36 Wis. 657. And the vagueness of this distinction, in practice as well as in theory, is illustrated by three reports

of Bass v. Railway Co., 36 Wis. 450; 39 Wis. 636; 42 Wis. 654. The case was three times tried, in different counties-twice upon instructions allowing exemplary damages, and once upon instructions disallowing them. And yet, the verdict on each trial was for the same sum. Apparently, what was allowed on two trials for exemplary damages, was allowed on the third trial for compensatory damages for wounded feelings, etc.

The charge of the court below in this case, on the subject of exemplary damages, was correct as far as it goes; though it can hardly be held sufficiently explicit in such a case, in view of some of the evidence appearing in the bill of exceptions. In Morely v. Dunbar, 24 Wis. 183, it was held that provocation of an assault, although not sufficient for justification, might mitigate even compensatory damages, clearly implying that it might exclude exemplary damages. In Wilson v. Young, 31 Wis. 574, it was held by a majority of the court that provocation could go to reduce compensatory damages, only so far as these should be given for injury to the feelings. Dixon, C. J., adhered to the rule in Morely v. Dunbar, that provocation, in proper cases, might go to reduce all compensatory damages. Whichever of these cases should be followed, it is quite clear that both hold that provocation may go to exclude exemplary damages. In such a case it is malice against malice; the malice of the plaintiff precluding him from recovery for the malice of the defendant, provoked by his own. See Johnson v. McKee, 27 Mich. 471.

Following for once a bad practice, the learned counsel for the respondent, in closing the argument of the case to the jury, forgot himself so far as to exceed the limits of professional freedom of discussion.

It appears by the bill of exceptions, that he waived the opening argument to the jury. A very strict rule might hold this to give the other side the right to close. If such a waiver should still leave the closing argument to the plaintiff, it certainly confined it to a strict reply to the defendant's argument, excluding general discussion of the case. The sole object of all argument is the elucidation of the truth, greatly aided in matters of fact, as well as in matters of law, by full and fair forensic discussion. And this is always imperilled when either party, by any practice, is able to present his views of the case to the jury, without opportunity of the other to comment on them. And if the party entitled to the opening argument, relying on the strength of his case without discussion, waives the right to open, he waives the right to discuss the case generally, and should not be permitted to do so out of his order, and after the mouth of the other party is closed. His close, if permitted to close the argument, should be limited to comments on the argument of the other side. This is essential to the fairness and usefulness of judicial discussion at the bar.

It sufficiently appears in the present case, that the learned counsel for the plaintiff did not properly confine his closing argument to a reply. It is very doubtful if that alone would be error sufficient to reverse the judgment, if an exception had

been taken by the appellant, which does not appear to be the case. But the learned counsel went beyond the legitimate scope of all argument, by stating and commenting on facts not in evidence.

In actions of tort, calling for exemplary damages, evidence of the pecuniary ability of the defendant to pay them is admissible. Birchard v. Booth, supra; Barnes v. Martin, 15 Wis. 240. This appears to be, as Mr. Justice Cole remarks in Birchard v. Booth, a fair corollary of the rule of exemplary damages. Perhaps the corollary is not better founded in principle than the rule, but the court takes them as it finds them established.

It appeared in evidence, that the appellant was an officer of a railroad company, and that the locus in quo was within depot grounds of the company. No evidence appears to have been given of the ability of the appellant to pay exemplary damages. The learned counsel appears to have undertaken to supply this want of evidence, by commenting to the jury upon the appellant's connection with the railroad company, and the wealth and power of the company as a great corporation, and the defendant's ability, from his connection with it, to pay any judgment which might be rendered against him. The bill of exceptions states, that "no record was kept of these remarks, and the court is unable to state more specifically the substance of language used." But enough appears to show, not only that the learned counsel commented on facts not in evidence, but in effect testified to the facts himself. It was in effect telling the jury that the appellant's position with the corporation gave him the ability to pay large damages, and nearly-if not quite-that they might measure the damages by the wealth of the railroad company itself.

Amongst other evidence of the appellant's ability to pay, it might undoubtedly have been shown that he received large emoluments from his position in the railroad company; and possibly that the railroad company had assumed the appellant's tort and the payment of the judgment. And it was not the duty or the right of counsel, was not within the proper scope of professional discussion, to assume the facts as proven, or to state them to the jury as existing; founding his argument pro tanto upon them. And this was the more marked in the present case, because it was made for the first time in what should have been a mere reply: and still more, because the court below had already admonished counsel to confine himself to the evidence, and not to go outside of the record.

The appellant took his exception; and his counsel now supports it by numerous cases, some of which are as far as they go-admirable discussions of professional ethics, and all of which are well worth the attention of the bar. All of them support the rule now adopted by this court, that it is error sufficient to reverse a judgment for counsel, against objection, to state facts pertinent to the issue and not in evidence, or to assume arguendo such facts to be in the case, when they are not. Some of the cases go further, and reverse judgments for imputation by counsel of facts not pertinent to the issue, but calculated to preju

dice the case. Tucker v. Henniker, 41 N. H. 317; State v. Smith, 75 N. C. 306; Ferguson v. State, 49 Ind. 33; Hennies v. Vogel, Sup. Court Ill., 7 Cent. L. J. 18.

There are cases in conflict with those which support this rule. But, in the judgment of this court, the rule is supported by the weight of authority and by principle.

Doubtless the circuit court can, as it did in this case, charge the jury to disregard all statements of fact not in evidence. But it is not so certain that a jury will do so. Verdicts are too often found against evidence and without evidence, to warrant so great a reliance on the discrimination of juries. And, without notes of the evidence, it may be often difficult for juries to discriminate between the statements of fact by counsel, following the evidence and outside of it. It is sufficient that the extra-professional statements of counsel may gravely prejudice the jury and affect the verdict.

The profession of the law is instituted for the administration of justice. The duties of the bench and bar differ in kind, not in purpose. The duties of both alike is to establish the truth and to apply the law to it. It is essential to the proper administration of justice, frail and uncertain at the best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic strife is but a method, and a mighty one, to ascertain the truth and the law governing the truth. It is the duty of counsel to make the most of the case which his client is able to give him; but counsel is out of his duty and his right, and outside of the principle and object of his profession, when he travels out of his client's case and assumes to supply its deficiencies. Therefore is it that the nice sense of the profession regards with such distrust and aversion the testimony of a lawyer in favor of a client. It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client; but he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. But an advocate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client's prejudices against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to prejudices, just or unjust, against Lis adversary dehors the very case he has to try. The very fullest freedom of speech within the duty of his profession should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. It may sometimes be a very difficult and delicate duty to confine counsel to a legitimate course of argument. But like other difficult and delicate duties, it must be performed by those upon whom the law imposes it. It is the duty of the circuit court, in jury trials, to interfere in all proper cases, of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon pertinent facts

not before the jury, or appealing to prejudices foreign to the case in evidence, exception may be taken by the other side, which may be good ground for a new trial, or for a reversal in this court.

It is with regret that the court is obliged to hold that both appear to have been done in this case. It was no fair inference for argument that, because the appellant was the servant of a wealthy railroad company, he himself was wealthy; or that the jury might take into consideration, in assessing damages, the power, wealth, and influence, of the corporation. Popular prejudice against great corporations is, perhaps, a sufficient difficulty in the way of the administration of justice, in cases in which such corporations themselves are parties; it is intolerable that it should be extended to their servants. For all that appears in this case, the appellant may be as poor as Job in his downfall. His wealth, if he had it, was legitimate subject of evidence; not legitimate subject of argument, without evidence. And his fortune or misfortune in being the servant of a corporation was legitimate ground for no appeal against him in a court of justice.

It is to the honor of the bar that this is the first time this question has come before this court. Yet it is not to be ignored that the practice here condemned has sometimes been indulged in. And it is, perhaps, not to be regretted that the question has first come here in the case of an eminent member of the bar; a gentleman of high character, personal and professional, known to every member of this court; whose professional ability needs no adventitious aid, and who probably fell into this error casually and inadvertently. His professional standing shields him from personal censure, while it will give emphasis to the rule laid down.

The judgment is reversed, and the cause remanded to the court below for a new trial.

NOTES OF RECENT DECISIONS.

MASTER AND SERVANT-NEGLIGENCE-FELLOW. SERVANTS.-Mobile & Mont. R. R. v. Smith. Supreme Court of Alabama, 6 Rep. 264. Opinion by MANNING, J.-1. An employer is not liable to an employee for an injury caused by the the fault or negligence of a coemployee, unless chargeable with blame for having employed as such co-employee a person incompetent and unfit for the duties assigned to him. 2. In an action against an employer for injuries caused by a co-employee, the onus of proving negligence is on the injured servant. 3. The general superintendent or manager of a railroad company, in the performance of a duty incumbent on him as one of its skilled servants, is a common employee with a brakeman of the road, as is also the supervisor of the road, an engineer, and a section-master.

MALICIOUS PROSECUTION-PROBABLE CAUSE-EVIDENCE.-Flickenger v. Wagner. Court of Appeals of Maryland, 6 Rep. 269. Opinion by ROBINSON, J.-1. In order to constitute reasonable and probable cause, in a case of malicious prosecution for an arrest, the facts and circumstances must be such as not only to create a bare suspicion, but must be sufficiently strong to satisfy a cautious man that the party is guilty of the charge. 2.