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or holding over under an existing lease; it is the reservation or mention of any claim to the buildcreation of a new tenancy. And it follows that ings, and enters upon a new term thereunder, the whatever was a part of the freehold when the right to removal is lost, notwithstanding his occulessee accepted and began his occupation under pation has been continuous. See Abell v. Williams, the new lease, must be delivered up at the end of | 3 Daly, 17; Merritt v. Judd,14 Cal. 49; Ingerman v. the term, and cannot be severed on the ground that Bovei, 19 Cal. 354; Taylor on Landlord and Tenit was put in as a trade fixture, under a previous ant, $ 550; Elwes v. Mawe, 3 East 38; 2 Smith's lease which has expired. The failure of the lessee L. C., 7 Am. Ed. 228, 245, 257. to exercise his right to remove during the former We are therefore of the opinion that the defendterm, or to reserve it in his new contract, pre ant had no right to remove any trade fixtures durcludes him from denying the title of his landlord ing the second term placed there during the first, to the estate and the fixtures annexed which have If any of the articles named were movable chatbecome part of it. The occupation under the new | tels, as the defendant contends, the plaintiff canlease is in effect a surrender of the premises to the not recover for them, but if they were permanent landlord under the old.

or trade fixtures, the plaintiff may recover for This view is supported by the authorities. The their removal. earliest case on the subject is Fitzherbert v. Shaw, Case to stand for trial. 1 H. Black. 258. A purchaser of lands, having brought ejectment against a tenant from year to year, the parties entered into an agreement

EXEMPLARY DAMAGES – CONDUCT OF that judgment should be signed for the plaintiff

TRIAL-REMARKS OF COUNSEL. 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

BROWN v. SWINEFORD. 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

Supreme Court of Wisconsin, January Term, 1878 up in the same situation they were in when the agreement was made and the judgment signed.

HON. E. G. RYAN, Chief Justice. This case was followed in Heap v. Barton, 12 C.

ORSAMUS COLE, B. N. S. 274, where there was a similar agree

WM. P. LYON,

DAVID TAYLOR. } Associate Justices. ment, and Jervis, C. J., said: “that if the ten

“ HARLOW S. ORTON, J. ants meant to avail themselves of their continuance in possession, they should have said so." In

1. CONSTITUTIONALITY OF PUNITIVE DAMAGES.Thresher v. Proprietors of the East London Water

An award of punitive damages for % tort which is also Works, 2 B. & C. 608, it was held that a lessee

punishable as a crime, is not in violation of the constiwho had erected fixtures for purposes of trade on tutional provision that no person, for the same offense the premises, and afterwards took a new lease to shall be twice put in jeopardy of punishment; and the commence at the expiration of the former one, rule allowing such damages should not now be abrogated which contained a covenant to repair, would be

or modified in this state, except by legislation. Prop.

ocation of an assault, though not sufficient for justifi. bound to repair the fixtures unless strong circum

cation, may go to exclude exemplary damages. stances are shown that they were not intended to

2. REMARKS OF COUNSEL WHEN GROUND FOR pass under the general words of the second de

REVERSAL.-If counsel, against objection, persevere mise; and a doubt was expressed whether any

in arguing to the jury upon pertinent facts not before circumstances, dehors the deed, can be alleged to

the jury, or appealing to prejudices foreign to the show that they were not intended to pass.

case in evidence, this, on exceptions duly taken, may The case of Shepard v. Spaulding, 4 Met. 416, be good ground for a new trial, or for a reversal; and touches the question. A lessee erected a building

the judgment herein is reversed on such ground. on the demises premises, which he had a right to

3. A WAIVER OF THE OPENING ARGUMENT to the remove but surrendered his interest to the lessor

jury, by the plaintiff's counsel, if it leaves him the

closing argument at all, confines it to a strict reply; but without reservation; afterwards he took another

qucre, whether a mere violation of this rule, excepted lease of the premises from the same lessor, but it

to, would be sufficient to reverse a judgment. was held that his right to remove did not revive.

4. AN INDECENT EXPOSURE, PERMITTED on the When the new lease was made, it was of the whole

trial, censured by the court. estate including the building. This differs from the case at bar only in the fact that there was an Action to recover damages for injuries inflicted interval between the surrender of the interest on the plaintiff by the defendant. On the 19th under the first lease and the granting of the sec of July, 1876, the plaintiff, a resident of Baraboo, ond when the lessor was in actual possession. But Sauk county, was on the platform of the Norththe acceptance of the new lease and occupation western Railroad Company's station at that place, under it are equivalent to & surrender of the without, as it appears from the evidence, having premises at the end of the term. In Loughran v. any business there. The defendant, the superinRoss, 45 N. Y. 792, it was held that if a tenant, tendent of the railroad, drove up to the platform having a right to remove fixtures erected by him in a carriage and seeing a crowd of men on the on the demised premises, accepts a new lease of platform ordered them to leave. Nearly all of them such premises, including the buildings, without I obeyed, but the plaintiff refused, and accompanied his refusal with an obscene epithet. The defend-1 which remarks of counsel and want of action on ant thereupon went up to the plaintiff and a scuffle the part of the court in not preventing them, counensued in which the injuries complained of were sel for the defendant did then and there except. received. The evidente was conflicting as to the After, and notwithstanding the aforesaid objection number of blows struck and as to whether the of defendant's counsel and the admonition and plaintiff struck the defendant.

ruling of the court that the counsel should confine The complaint alleges that on the 19th of July, himself to a fair discussion of the evidence and 1876, at Baraboo, Sauk county, the defendant with keep within the record, the plaintiff's counsel in out any cause or provocation whatever, with force a subsequent part of his argument to the jury and arms, assaulted the said plaintiff and with commented to the jury upon the connection of the great force and violence struck him three fearful defendant, Swineford, with the railroad company, and dangerous blows upon the head, over and upon the superior power, wealth and influence as above the right eye, and then and there gave and compared with the plaintiff, of the said company struck the plaintiff a great many other very vio

as a great corporation, and the defendant's ability, lent blows upon the head, breast, and other parts on account of his connection therewith, to pay of the body, and also then and there with great any judgment that might be rendered against him force and violence shook and pulled about the in the action. said plaintiff and threw him upon the sidewalk, The jury rendered a verdict in favor of the and also then and there jumped upon and kicked

plaintiff for $750. Defendant appeals. the plaintiff in his private parts, greatly injuring Appeal from the Circuit Court of Monroe County. one of his testicles, and then and there gave and

W. F. Vilas and C: C. Remington, for appellant; struck the plaintiff many other severe and danger

Chas. R. Gill and R. M. Bashford, for respondent. ous blows and strokes. The answer of the defendant denies that the plaintiff had sustained | RYAN, C. J., delivered the opinion of the court; anything more than nominal damages, and alleg- The court would be wanting in self-respect to ed that the assault was provoked by the language decide this appeal without some word of censure and conduct of the plaintiff, and that whatever

for an indecency committed on the trial. During trespasses the defendant committed were done

his examination as a witness, the respondent was suddenly and in the heat of passion, wrongfully permitted, without apparent objection by court or aroused by the plaintiff.

counsel, to uncover and exhibit to the jury his orOn the trial the defendant's counsel excepted, | gans of generation. No such indecency is ever amongst others, to the fourth Instruction given to necessary, or should be tolerated in any court. If the court which, was: “ 4th. If the injury was in the condition of any private part of the body of flicted by defendant upon the person of the plain any party, male or female, is material on any trial, tiff ander circumstances of aggravation, insult or it should be privately examined by experts out of contumely, with vindictiveness, wantonness or mal court, and expert testimony be given of it. Such ice on the defendant's part, the jury are author an exposure as was made in this case, if made withized to impose damages over and above those out leave of the court, might well be punished as a heretofore indicated, which are denominated actual contempt; made with the sanction of the court, it or compensatory damages, as a punishment to de is none the less improper and indecent, well calcufendant and as a warning and example to himself lated to disgrace the administration of justice and others. These are what are denominated pu and to bring it into ridicule, if not into contempt. nitory or exemplary damages.”

It is hoped that this court may never have anCounsel on the part of the plaintiff waived his other occasion for such censure. opening argument to the jury, and notwithstand- A very able and solemn appeal was made to the ing a notice to him by the defendant's counsel that court, to exclude the rule of exemplary damages in he should insist that in his closing argument to the actions of tort, when the tort is punishable as a jury he should keep within the record, and that if crime. The position was founded upon the clause he went outside of that the defendant should take in sec. 8, art. 2 of the constitution, that no person, exception, remarked to the jury: “ The defendant, | for the same oftense, shall be twice put in jeopardy Swineford, has the use of the Chicago & North of punishment. It was argued with very great western Railroad to carry his witnesses to and force that punitory damages, given in the right of from Sparta. He issued passes to his witnesses, the pablic, in addition to full compensation of the while poor Brown was obliged to pay the fare of sufferer by an act which is at once a tort and a each and every witness he had.” The defendant's crime, as in this case, and in McWilliams v. Bragg, counsel objecting to these remarks the court or 3 Wis. 424, and Birchard v. Booth, 4 Wis. 67, subdered the counsel to confine himself to the evi- jects the tort-feasor to punishment twice for the dence. Afterwards the plaintiff's counsel resumed same offense. And it might have been added that, his remarks to the jury, and said: 66 Well, there is while the statute limits the pecuniary fine upon evidence that he is superintendent of the railroad, criminal prosecution for such an act, there is but and this very afternoon a special train left this vague limit to the punitory damages which a jury village for the sole purpose of carrying the de may find in a civil action. It certainly appears to fendant's witnesses to their homes; and if Swine-| be an incongruity, that one may be punished by ford has power to send special trains wherever he the public for crime upon criminal prosecution, by wants to, I guess he has power to issue passes. I fine limited by statute, and again punished in favor don't think there will be much doubt of that." To l of the sufferer, but in right of the public, for the same act, by punitory damages, with little limit | appears to be, that judgment for the criminal but the discretion of a jury. This is but another offense is for the offense against the public; judgillustration of what appears to be the incongruity ment for the tort is for the offense against the priof the entire rule of exemplary damages.

[graphic]

vate sufferer; that though punitory damages go in On this subject the writer adheres to what he the right of the public for example, they do not go said in Bass v. Railway Co., 42 Wis. 672, confirmed by way of public punishment, but by way of private by comments which he has seen upon it in legal damages for the act as a tort, and not as a crime, periodicals. And he believes that his views of to the private sufferer and not to the state. Though punitory damages, as an original question, are they are allowed beyond compensation of the prisanctioned by every present member of the court. vate sufferer, they still go to him for himself, as

The particular view of the rule now insisted on damages allowed to him by law in addition to his was overlooked in McWilliams v. Bragg, Birchard actual damages; like the double and treble damv. Booth, and all the cases in this court, in which ages sometimes allowed by statute. Considered as the action was against the actual tort-feasor, sub strictly punitory, the damages are for the punishject to the criminal conviction for the act. In Rail ment of the private tort, not of the public crime. road Co. v. Finney, 10 Wis. 388; Bass v. Railway It is unfortunate that damages should ever have Co., 36 Wis. 450, s. C. 42 Wis. 654; Craker v. Rail- been suffered to go beyond actual compensation, way Co., 36 Wis. 657, and other cases where the | under a liberal rule like that given in Craker v. action was against the master for the tort of the Railway Co., 36 Wis. 657. But the rule so long and servant, it could not well arise. So far, therefore, so generally established is a sin against sound juit is a question of first impression here; and the dicial principle, not against the constitution. court congratulates itself that it arises first in a And so the constitutional provision makes no case thoroughly discussed by able counsel on both exception to the rule of exemplary damages, sides.

although it adds great force to the weight of arguIt would have been no subject of regret to the ment against the soundness of the rule generally. court if the obligation of the constitution called A different view appears to prevail elsewhere. upon it to abridge the application of the rule. But Fay v. Parker, 53 N. H. 342. This is certainly, as the court is unable to hold that the constitutional an editor of Professor Greenleaf's work remarks, a provision has any controlling bearing on the ques very elaborate and able discussion of the subject; tion. The constitution only re-enacts what was the it is a very elaborate and able criticism of the cases general, if not literally universal, rule at common sustaining the rule of punitory damages, and argulaw. See authorities collected in 1 Bishop Crim. ment against the rule in any case. To the same Law, secs. 980-987. The word jeopardy is there effect are Taber v. Hutson, 5 Ind. 322; Butle v. fore used in the constitution in its defined, techical Mercer, 14 Ind. 479; Nossaman v. Rickert, 18 Ind. sense at the common law. And in this use it is ap 350; Humphries v. Johnson, 20 Ind. 190; Austin plied only to strictly criminal prosecutious by in. v. Wilson, 4 Cush. 277. But these cases fail to satdictment, information or otherwise. Commonwealth isfy this court that it is wrong in the construction V. Cook, 6 Ser. & R. 577; State v. McKee, 1 Bailey, here given to the constitutional provision in ques651; People v. Goodwin, 18 Johns, 187; U. S. v. tion. And Chiles v. Drake, 2 Met. (Ky.) 146, and Gilbert, 2 Sumner, 19; U. S. v. Haskell, 4 Wash. | Hendrickson v. Kingsbury, 21 Iowa, 379, well con402. See also State v. Crane, 4 Wis. 400. The sidered cases, in very satisfactory discussions, come cases generally hold that the rule in criminal cases, to the same conclusion as this court, and strongly that one shall not twice be put in jeopardy, implies confirm it. more than a bar of a judgment to an action for the The argument and consideration of this case same cause. But no case is known where a con have gone to confirm the present members of this viction upon an indictment has been held a bar to court in their disapprobation of the rule of exa civil action for damages growing out of the same emplary damages which they have inherited. But act; a fortiori, none in which a recovery in a civil they fear to complicate the difficulties and inconaction has been held a bar to an indictment for the gruities of the rule by the exception urged, and do same act. And the whole purview of section 8 not feel at liberty to change or modify the rule at plainly shows that the putting in jeopardy prohib so late a day, against the general authority elseited is confined to criminal prosecutions. Indeed, where. As suggested in Bass v. Railway Co., if a this is manifest in the clause itself, which is con change should now be made, it lies with the legisfined to the same offense, used in the same sense as lature rather than the court, to abrogate or modcriminal offense, in the first clause of the section. | ify a rule running through the entire body of the Of course the same act may be an offense (in the reports of this state. As was once well observed, sense of crime) against the state, and an offense courts can not be always inquiring into the original (in the sense of tort) against a private person. It justice or wisdom of rules long established and is manifest that judgment for the one is not a bar accepted. to the otber. And it might be difficult, in princi After all, the distinction between compensatory ple, to hold a criminal conviction as a bar to the damages for wounded feelings, sense of insult, etc. recovery of punitory damages in a civil action, and

and punitory damages, is something very vague, not a bar to the recovery of compensatory dam as may be seen by comparison of Wilson v. Young, ages; not a bar to any civil action. See Jacks v. 31 Wis. 574, and Craker v.Railway Co., 36 Wis. 657. Bell, 3 C. & P. 316.

And the vagueness of this distinction, in practice The radical difficulty in the position of counsel | as well as in theory, is illustrated by three reports

of Bass v. Railway Co., 36 Wis. 450; 39 Wis. 636; | been taken by the appellant, which does not ap42 Wis. 654. The case was three times tried, in pear to be the case. But the learned counsel went different counties—twice upon instructions allow beyond the legitimate scope of all argumerit, by ing exemplary damages, and once upon instruc stating and commenting on facts not in evidence. tions disallowing them. And yet, the verdict on In actions of tort, calling for exemplary dameach trial was for the same sum. Apparently, ages, evidence of the pecuniary ability of the dewhat was allowed on two trials for exemplary dam fendant to pay them is admissible. Birchard v. ages, was allowed on the third trial for compensa Booth, supra; Barnes v. Martin, 15 Wis. 240. This tory damages for wounded feelings, etc.

appears to be, as Mr. Justice Cole remarks in The charge of the court below in this case, on

Birchard v. Booth, a fair corollary of the rule of the subject of exemplary damages, was correct as exemplary damages. Perhaps the corollary is not far as it goes; though it can hardly be held suffi better founded in principle than the rule, but the ciently explicit in such a case, in view of some of ! court takes them as it finds them established. the evidence appearing in the bill of exceptions. It appeared in evidence, that the appellant was an In Morely v. Dunbar, 24 Wis. 183, it was held that officer of a railroad company, and that the locus provocation of an assault, although not sufficient in quo was within depot grounds of the company. for justification, might mitigate even compensatory | No evidence appears to have been given of the damages, clearly implying that it might exclude ability of the appellant to pay exemplary damexemplary damages. In Wilson v. Young, 31 Wis. ages. The learned counsel appears to have under574, it was held by a majority of the court that taken to supply this want of evidence, by comprovocation could go to reduce compensatory dam menting to the jury upon the appellant's connection ages, only so far as these should be given for in with the railroad company, and the wealth and jury to the feelings. Dixon, C. J., adhered to the power of the company as a great corporation, rule in Morely v. Dunbar, that provocation, in and the defendant's ability, from his connection proper cases, might go to reduce all compensatory with it, to pay any judgment which might be rendamages. Whichever of these cases should be fol- | dered against him. The bill of exceptions states, lowed, it is quite clear that both hold that provo that "no record was kept of these remarks, and cation may go to exclude exemplary damages. In the court is unable to state more specifically the such a case it is malice against malice; the malice substance of language used.” But enough apof the plaintiff precluding him from recovery for pears to show, not only that the learned counsel the malice of the defendant, provoked by his own. commented on facts not in evidence, but in effect See Johnson v. McKee, 27 Mich. 471.

testified to the facts himself. It was in effect tellFollowing for once & bad practice, the ing the jury that the appellant's position with the learned counsel for the respondent, in closing the corporation gave him the ability to pay large damargument of the case to the jury, forgot himself so ages, and nearly-if not quite-that they might far as to exceed the limits of professional freedom measure the damages by the wealth of the railroad of discussion.

company itself. It appears by the bill of exceptions, that he

Amongst other evidence of the appellant's ability waived the opening argument to the jury. A very

to pay, it might undoubtedly have been shown strict rule might hold this to give the other side the that he received large emoluments from his posiright to close. If such a waiver should still leave tion in the railroad company; and possibly that the closing argument to the plaintiff, it certainly the railroad company had assumed the appellant's confined it to a strict reply to the defendant's ar tort and the payment of the judgment. And it gament, excluding general discussion of the case. was not the duty or the right of counsel, was not The sole object of all argument is the elucidation within the proper scope of professional discussion, of the truth, greatly aided in matters of fact, as to assume the facts as proven, or to state them to well as in matters of law, by full and fair forensic the jury as existing; founding his argument pro discussion. And this is always imperilled when tanto upon them. And this was the more marked either party, by any practice, is able to present his | in the present case, because it was made for the views of the case to the jury, without opportunity first time in what should have been a mere reply; of the other to comment on them. And if the and still more, because the court below had already party entitled to the opening argument, relying on admonished counsel to contine himself to the evithe strength of his case without discussion, waives dence, and not to go outside of the record. the right to open, he waives the right to discuss The appellant took his exception; and his counthe case generally, and should not be permitted to sel now supports it by numerous cases, some of do so out of his order, and after the mouth of the which are-as far as they go-admirable discusother party is closed. His close, if permitted to sions of professional ethics, and all of which are close the argument, should be limited to comments well worth the attention of the bar. All of them on the argument of the other side. This is essen support the rule now adopted by this court, that tial to the fairness and usefulness of judicial dis it is error sufficient to reverse a judgment for cussion at the bar.

counsel, against objection, to state facts pertinent It sufficiently appears in the present case, that to the issue and not in evidence, or to as:ume the learned counsel for the plaintiff did not prop arguendo such facts to be in the case, when they erly confine his closing argument to a reply. It is are not. Some of the cases go further, and revery doubtful if that alone would be error suffic- verse judgments for imputation by counsel of facts ient to reverse the judgment, if an exception had l 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 his 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. Ais 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 cautious man that the party is guilty of the charge. 2.

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