ing your minds guided by the evidence?"--is too elastic, and tends to minimize the importance of the rule.

3. Where the insufficiency of the evidence to support the verdict is a point strongly urged by an appellant, it was proper for him to insert the whole evidence in the "case. "

Appeal from circuit court, Jackson county; ALFRED W. NEWMAN, Judge.

Action by Albert A. Button against Joseph J. Metcalf, sheriff. Verdict and judgment for defendant. Plaintiff appeals. Reversed.

Trover, to recover the value of a stock of merchandise and store fixtures, with damages for the breaking up of plaintiff's business. Defendant justified the taking of the goods as sheriff under executions against Eugene Button and Edwin Button, copartners, under the name of Button Bros., and claimed that the property was in fact the property of Button Bros., they having paid a large part of the consideration, and having caused the title to be taken in plaintiff's name with intent to hinder and delay their creditors. The seizure was made May 25, 1889. It appears from the evidence that in August, 1888, Button Bros. were doing business in the store where the seizure was made, with the fixtures and a part at least of the stock of goods in question, and that the property was then attached by Hogan & Anderson upon claims which ripened into judgments and executions, upon which the property was sold October 9, 1888, and bid in by Hogan, or by Hogan & Anderson, the attaching creditors. The defendant claimed, and offered some testimony tending to show, that an arrangement was made previous to this sale between the Button Bros. and the plaintiff, by which Hogan & Anderson were to bid in the goods for $1,275, and afterwards Albert Button, the plaintiff, was to buy the goods back, and take title thereto, using as much money as the Button Bros. could furnish him for that purpose, and giving security for the balance on his own property, and holding the goods until he was paid, and the Button Bros. got straightened up with their creditors. It was undisputed that plaintiff did buy the goods of Hogan in November, 1888, and gave Hogan & Anderson a mortgage for $850, as part payment for the goods, and plaintiff claims he also paid the balance of $430 out of his own funds. At the beginning of the trial the defendant admitted that Hogan & Anderson had a good title to the goods in question. At the close of plaintiff's case, the defendant qualified this concession to this extent: "We do not claim that any fraud existed cn the part of Mr. Hogan; that there was any collusion be. tween Hogan and Button Bros.; but as to the consideration, and how these goods were taken, the negotiations, etc., that we do not concede to be fair, but do claim that it was fraudulent. whole question is, what occurred between these brothers?" The jury returned a verdict for the defendant, and from the judg. ment entered thereon plaintiff appeals.

The

Morrow & Masters, for appellant. Castle & Waldo and Fruit & Brindley, for respondent.

WINSLOW, J., (after stating the facts.) This judgment must be reversed on account of manifest error in the charge of the court. The circuit judge said to the jury: "Really, all this simmers itself down to the question of what funds did he buy these goods with? Were they his own, or were they the funds of Button Bros.?" And again: "Does the evidence make you think that this was an honest transaction, that Albert Button bought the goods for himself with his own funds, or do you think from the evidence that he bought them in part with funds of Button Bros.? In the one case it is an honest transaction as the law views it. In the other case it is fraudulent, and you are to decide that just as you think the truth is." And again, at the close of the charge: "So far as the law is concerned, it is in a very small compass, as applied to this case, and it rests on just that one question, I think: Whose funds bought these goods from Mr. Hogan?" Although the jury were told elsewhere in the charge that the question of good faith was involved, and that, if plaintiff bought the goods in part with the funds of Button Bros., and for the purpose of holding them until they could safely take them in their own names, it might be a fraud on the creditors of Button Bros., because it would naturally tend to hinder and delay them, still this can hardly be held to correct the evil of the thrice reiterated instruction that the sole question was, whose funds purchased the goods? The charge concludes with this statement, and we think the jury must naturally have understood that they were only to investigate that one question, and, if they found that any funds of Button Bros. were used in the purchase, their verdict must be for the defendant. Conceding that there might be a fraudulent scheme between the Button Bros. and Albert Button, to which Hogan & Anderson were not parties, (a point not decided,) by reason of which the title taken by Albert Button from Hogan & Anderson could be successfully attacked by creditors of Button Bros., it is plain that there must be something more proven to establish the fraud than the mere fact that Button Bros. furnished part of the funds. This one fact constitutes no fraud. It would simply constitute Albert Button a debtor of Button Bros. to the amount of funds so furnished. There must have been a secret trust reserved by which the title was to come back at some time to Button Bros., and this element was entirely omitted from the portions of the charge first quoted.

Criticism was also made by counsel upon that part of the charge which deals with the question of preponderance of the evidence. It is as follows: "You are to be satisfied by a fair preponderance of the testimony. That is an expression that may mean considerable, and it may not mean much, depending on how you understand it, but in the final analysis it means this: What do you think about it, having your minds guided by the evidence?" While we should not, perhaps, feel constrained to reverse the judgment on this ground alone, were there no other error

in the case, we cannot resist the conclusion that this definition of "preponderance of evidence" is too elastic to be accurate. It tends to minimize the importance of the rule, and lead the jury to believe that it in fact means little or nothing. We think the plaintiff was certainly entitled to have the jury instructed (if instructed at all on the subject) that "preponderance" means greater weight of evidence, or evidence which is more credible and convincing to the mind, or some equivalent expression. In this connection we may say that, after a patient examination of the case, we deem it extremely doubtful whether a verdict which finds that any portion of the funds of Button Bros. went into this purchase could be sustained upon the evidence. The evidence to that effect is certainly very vague and shadowy. As a new trial will be necessary, it is not deemed necessary to discuss the other alleged errors complained of by appellant.

The point made by respondent that the printed case is unnecessarily voluminous is not well taken. One of the points made by appellant, and cogently argued, was that the verdict was against the evidence, and, for the purpose of properly presenting and arguing that point, a full statement of the evidence was necessary. The judg ment of the circuit court is reversed, and the cause remanded for a new trial.

ORTON, J., took no part.

BENEDIX et al. v. GERMAN INS. Co. of FREEPORT. (Supreme Court of Wisconsin. Sept. 29, 1891.) BILL OF EXCEPTIONS-FAILURE TO SERVE IN TIME -DEATH OF JUDGE-NEW TRIAL.

Rev. St. Wis. 1878, 2877, provides that whenever a judge, before whom the issues in an action shall have been tried, shall die after judgment, and before the expiration of the period limited for serving a bill of exceptions, such bill may be settled by stipulation of the parties; but, if the parties cannot agree, a new trial shall be ordered, if application be made at the first term succeeding the death of the judge. Held, that where a defeated party fails to serve a bill of exceptions within the limited time, and two months later the judge dies, a new trial will not be granted on the opposing party's refusal to settle the bill by stipulation; and the fact that the lat ter's attorney, in a casual conversation with the former's attorney, stated that a copy of the reporter's minutes and of the judge's charge would be a sufficient bill of exceptions, and that no copies need be served, and that all other technicalities and rules should be waived, is immaterial, where no statement was made as to the time of serving the bill.

Appeal from circuit court, Brown county; SAMUEL D. HASTINGS, Jr., Judge.

Motion by appellant based upon affidavit for an order substituting Henry Rahr administrator as plaintiff in place of Henry Rahr, deceased; also for an order opening default in serving proposed bill of exceptions, or for an alternative order on account of the death of Hon. GEORGE H. MYERS, the presiding circuit judge, directing either that said respondents stipulate that the proposed bill of exceptions heretofore served be accepted as the bill of exceptions, or, if they refuse to so stipulate, that the record be remitted to the circuit court to enable appellant to apply

for a new trial. The affidavit shows that the action was tried and verdict rendered against appellant, March 13, 1891; motion for new trial overruled; judgment entered March 21st; and notice of entry served March 28, 1891. The appeal was taken June 17, 1891. A conversation is set forth between appellant's attorneys and one of respondents' attorneys, April 16, 1891, in which it is claimed respondents' attorney stated that all that would be required to make a bill of exceptions would be the reporter's minutes of trial and a copy of the judge's charge, and that no copies need be served, and that all oth er technicalities and rules should be waived; but nothing is claimed to have been said about time. The proposed bill was sent to respondents' attorneys July 22, 1891, and returned immediately by them as being too late. Some correspondence ensued between the attorneys, which need not be set out. Judge MYERS, who tried the case, died August 2, 1891, and now this motion is made in this case.

Sylvester & Scheiber, for appellant. L. B. Sale, for respondents.

WINSLOW, J., (after stating the facts as above.) Counsel asks this court to open the default which has occurred, or make an order compelling plaintiffs to stipulate to his proposed bill of exceptions. Waiv. ing the question of the right of this court to make such an order, we are persuaded that it ought not to be made in any event. Counsel allowed the time to elapse without applying for extension either to the counsel or to the court, relying upon his understanding of what seems to have been a casual interview. While we might, under ordinary circumstances, feel inclined to relieve from a default so occurring, the circumstances in this case are not ordinary. There is no person or officer now living who can settle the bill. Opening the default would seem to be a work of supererogation when nothing can be done after it is opened. But counsel urges that the record should be remitted to the circuit court, and that appellant will then be entitled to a new trial, providing plaintiffs' counsel do not agree to the bill as proposed under the terms of Rev. St. § 2877. Not so, however: the section relied on only provides for a case where the trial judge dies or removes from the state "after judgment, and before expiration of the period limited for serving a bill of exceptions." Such was not the case here. Judge MYERS died August 2d, more than two months after the time limited for serving a bill of exceptions; hence it would be useless to remit the case. The net result of any one of the various forms of relief which appellant prays for would seem to be to compel the plaintiffs to accept and stipulate to defendant's proposed bill or submit to a new trial. We do not feel that we can make any such order. The motion must be denied, with $10 costs, except as to that part which prays for the substitution of an administrator in place of deceased plaintiff, which will, of course, be granted.

ORTON, J., took no part.

isfaction of the claim of Apolinar, and describing the grantee in each as assignee of "Calhoun Fluker, legal representative of Pedro Apolinar. That defendant Daly received by conveyance from the patentee a part of the located lands, and is in possession thereof, and refuses to convey to plaintiffs, or recognize their rights. That said probate proceedings, pretended sale, application for and receipt of certificates, and all the subsequent proceedings by which the defendants obtained title, were in fraud of plaintiffs' rights, and without their knowledge or consent, and that plaintiffs were each and all wholly ignorant of the same until within 18 months last past, when they immediately prepared to enforce their rights. (12) That Pedro Apolinar never had a domicile or residence in St. Tammany parish, and on that account, as well as on account of the fact that said land claim was not the property of Apolinar, said probate proceedings and administration sale are wholly void, and said Fluker and Bradford and their assignees, including defendant, became constructive trustees of plaintiffs, and are bound to account for rents and profits, and to convey said lands to plaintiffs. The prayer is that the defendants be adjudged trustees, and that they account and convey. The demurrer was based on eight grounds, but the points argued and relied on were: (1) Adequate remedy at law; (2) statute of limitations; (3) laches; (4) that defendant had no notice of plaintiffs' rights when he purchased; (5) that the decree of the Louisiana probate court is unimpeachable collaterally in this action.

It is clear that the plaintiffs have now no remedy at law, and have not had since the issuance of the patents in 1881. They have no shred of legal title upon which to maintain ejectment. Had the granting clause of the patents run to “Apolinar or his legal representatives," as in Hogan v. Page, 2 Wall. 605, the question would be different, but here the grant was to one Bardeen or his legal representatives. But appellant's counsel contend that plaintiffs had in 1877 a remedy at law by way of trover or replevin for the recovery of the certificates of location, and that, this remedy being now barred by the statute of limitations, the equitable remedy is also barred, because this is not "a case which was before February 28, 1857, solely cognizable by the court of chancery." Rev. St. § 4222, subd. 7. Whether replevin or trover could be maintained depends upon whether these land claims were chattels. In our opinion, they were clearly hereditaments, descendible to heirs; fulfilling Blackstone's definition of incorporeal hereditaments,-"a right issuing out of a thing corporate, whether real or personal." 2 Bl. Comm. p. 20. This laud claim, until perfected by location and patent, was simply a right granted by the United States to receive so many acres of land, a mere equity. The doctrine that replevin may be maintained and is an adequate remedy for the recovery of an equitable right merely is hardly tenable. Brush v. Ware, 15 Pet. 93-108; In re Lettrieus Alrio, 5 Dec. Dep. Int. 158-163.

But suppose the plaintiffs had obtained through some court, by the medium of a replevin suit, the certificates of location, how much better off would they be than before? The officers of the government would not be concluded by the replevin judgment. The plaintiffs could not compel the government by action in the courts to issue to them a patent. U. S. v. Jones, 131 U. S. 1, 9 Sup. Ct. Rep. 669. What have plaintiffs gained by this alleged "adequate" remedy at law? Absolutely nothing. Their decree binds no one but themselves. They must litigate the question as to who is entitled to the patent over again in the land department. They have tried one lawsuit for the luxury of engaging in another. It seems plain that the only adequate remedy, as well before the patents issued as after, was in equity. On the law side of the court they could have got nothing that even approached relief.

From this conclusion it foliows that the statute of limitations has not run against this claim, because it is a case falling fully within the provisions of subdivision 7 of section 4222, Rev. St. The cause of action did not accrue until the facts were discovered, which, according to the complaint, was within 18 months prior to the commencement of this action.

But appellant says that on the facts stated there was no fraud and no trust; that Fluker was a mere tort-feasor, who had got hold of plaintiffs' property. It will scarcely be necessary to discuss these questions at length. If the procurement of a bogus title by means of proceedings such as are here set out be not a fraud on the real owners, then we need a prompt revision of the law on the subject. If it be a fraud, (and there can be no doubt on that question here,) then a trust for the benefit of the real owners attached to the property secured by means of the fraud. No authorities are needed to this proposition.

Upon the question of laches the case seems no stronger for the defense than the Weeks Case, and, although we have re-examined the question at the request of counsel, we are still entirely satisfied with the position there taken. The samere. mark may be made on the question of notice to defendant of the rights of plaintiffs. That question was most fully discussed by the late Mr. Justice TAYLOR in the same case, and settled in accordance with what we consider correct legal principles.

Counsel maintain that the main question in the case, to-wit, the effect of the decree in the Louisiana probate court, has, since the decision in the Weeks Case, been settled in favor of defendant by the supreme court of the United States, and cites us to the case of Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. Rep. 369. It is not necessary in this case to affirm or disaffirm the principles decided in Simmons v. Saul; those principles do not affect this case in the least. Grant that the order of the probate court granting administration was a judicial determination of the exist ence of the necessary preliminary facts, and that its judgment cannot be impeached collaterally, nor the truth of its record concerning matters within its juris diction disputed, such judgment certainly

cannot operate on property which deceased did not own at the time of his death. Administration of the estate of John Smith may be conclusive collaterally as to property which John Smith owned, but is it conclusive as to property owned by John Jones? Because some probate court, in the course of the administration of Smith's estate, has assumed to sell the property of Jones, are Jones' heirs be deprived of their inheritance until they have journeyed to the probate court and appealed or taken some direct proceeding to set the judicial determination aside? The question is its own answer. Probate courts have jurisdiction of the estates of dead men, not of live ones; and when it appears that this land claim did not belong to Apolinar when he died, the proceedings of this probate court of St. Tammany parish become perfectly immaterial. They present no obstacle of the most shadowy kind. They do not have to be attacked, because they are not in plaintiffs' way. They are simply necessary to be alleged in the complaint as being a necessary and fundamental part of the fraudulent attempt to obtain the property in dispute from those who appear by the complaint to be its true owners. The order of the circuit court is affirmed.

ORTON, J., took no part.

GILLETT et al. v. McGONIGAL.

(Supreme Court of Wisconsin. Sept. 29, 1891.) LAYING OUT HIGHWAYS - POWERS OF COMMITTEE. Under Rev. St. Wis. § 1302, which provides that the committee appointed by the county board of supervisors in laying out a highway must report its doings to the board, whose duty it is to make the order laying out the highway, a highway laid out by order of the committee is illegal, notwithstanding section 1300 provides that all the powers of the board may be exercised by such committee.

Appeal from circuit court, Grant county; GEORGE CLEMENTSON, Judge.

Action by J. A. Gillett and J. J. Williams, special administrators of the estate of William W. Gillett, against James McGonigal, to recover for trespassing on land. Verdict and judgment for defendant. Plaintiffs appeal. Reversed.

It appears from the record that this is an action for trespass quare clausum fregit, alleged to have been committed March 28, 1889, commenced in justice's court by the plaintiffs' intestate; that the defendant justified on the ground that the locus in quo was at the time named within the limits of a public highway laid out by the county October 10, 1888; that upon the trial in the circuit court there was evidence to the effect that at the November session of the county board of supervisors for 1887 a resolution was adopted by said board, of which the following is a copy: "Resolved, that the chairman of the county board be and is hereby authorized to fill all vacancies that may occur in the committee on county roads by reason of resignation or other cause, and that said committee be and is hereby authorized to act in all respects in laying out, altering, and discontinuing highways as provided

by law, as if acted on by the whole board of supervisors;" that a similar resolution was passed each year previously, back to 1878, and also one for the year 1888; that during the months of August, September, and October, 1888, there was a committee of five in existence, which had been previously appointed by the chairman of the county board, in pursuance to said resolutions; that on or about August 8, 1888, a petition, signed by the requisite number of freeholders, was made to the county board of supervisors for the laying out of a county road along and over the place in question; that September 10, 1888, a notice, signed by that committee, of the time and place of meeting to decide upon the application was duly published; that October 10, 1888, the committee met, according to such notice, at the place named therein, and then and there proceeded to examine, personally, such highway, and did hear all reasons for and against the same, and did then determine orally to grant said petition, and to order said highway to be laid out and established, and also award damages to the respective parties, including eight dollars to said intestate; that said committee thereupon authorized one of their number to draw up the order laying out and establishing such highway, and awarding such dam. ages, and the other four wrote their names upon a blank piece of paper, and directed the person so authorized to draw the or der, to annex such blank with their names thereon thereto, after the same should be drawn; that he did draw said order with said award, and annexed thereto said blank, and the same was thereupon filed in the office of the county clerk; that otherwise the county board never acted upon the laying out or establishing said highway. Upon such evidence the circuit court directed a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff brings this appeal.

Clark & Taylor, for appellants. Bushnell & Watkins and T. L. Cleary, for respondent.

CASSODAY, J., (after stating the facts.) Section 1300, Rev. St., authorizes the county board of supervisors, upon petition, to lay out highways under the circumstances therein mentioned; and also expressly provides that "all the powers herein mentioned may be exercised by a committee of not less than three members of the board, duly appointed for that purpose. Under this provision it was held by the learned trial court that the committee of five, appointed by the chairman of the county board in pursuance of the resolutions mentioned in the foregoing statement, had full power and authority to lay out and establish the road in question, without any approval of or sanction by the county board. The obvious purpose of the provision of the statute quoted was to obviate the necessity of the whole board personally viewing the line of the proposed highway. To make such personal view in some counties where the mer bers of the board are very numerous, and especially where the proposed highway is distant from the county-seat, would be