Appeal from circuit court, Columbia county.

In 1886 one McGregor was the owner of a large quantity of pine lands in the northern part of this state. In August of that year he executed to the defendant, Andrae, a writing, appointing the latter his agent to sell any or all of such lands, and agreed therein to pay him 10 per cent. commisions on all sales so made, which should be approved by the owner. The price fixed by McGregor for all the lands was $30,000. In December following the defendant engaged Russell, the plaintiff, to assist him in making such sales, and agreed that, if plaintiff found a purchaser, he (Andrae) would pay him therefor onethird of the commissions received from McGregor. In January, 1887, the plaintiff associated with himself one Malick to assist in finding a purchaser of the lands (Andrae consenting thereto,) and agreed, if Malick found such purchaser, to pay him for his services one-half the amount he should receive from Andrae. Malick thereupon advertised the land for sale in the Milwaukee Sentinel, by means of which advertisement Mr. Youmans, of Neils ville, was first informed that the lands were for sale, and immediately opened negotiations with Malick looking to a purchase thereof. In March, 1887, Youmans entered into direct negotiations with McGregor, which resulted, the following summer, in a sale of the lands by McGregor to him for $30,000, or nearly that sum. McGregor thereupon paid Andrae $3,000 as and for his commissions on such sale. The plaintiff brought this action to recover onethird of the commissions so received by defendant, Andrae, to-wit, $1,000. On the trial, and at the close of the plaintiff's tes timony, which proves the above facts, a motion by defendant for a nonsuit was granted. Judgment was entered accordingly, after a motion for a new trial had been overruled. A further statement of the testimony, and the ground on which the nonsuit was granted, is contained in the opinion. The plaintiff appeals from the judgment which dismisses his complaint, with costs.

Cate Jones & Sanborn, for appellant. Raymond & Brennan, for respondent.

LYON, J., (after stating the facts as above.) Were the facts contained in the foregoing statement all there is of the case, there would be no doubt that the plaintiff, Russell, through Malick, fully earned the compensation for finding a purchaser of McGregor's land, stipulated by the defendant, Andrae, to be paid him therefor, and would be entitled to recover the same in this action. But there are other facts disclosed by the testimony upon which the court granted the nonsuit. These will now be stated. As soon as Youmans, who afterwards purchased the lands, saw Malick's advertisement in the Milwaukee Sentinel, and on February 12, 1887, he telegraphed Malick at Stevens' Point for descriptions of the lands, terms of sale, and for an option, and asking him if he would give the option at the price of $30,000. Malick answered this telegram about a month later, stating price at

$37,500. Youmans replied March 15th, again requesting option, lowest price, etc., and expressing an intention to examine the lands. Malick then sent him the plats thereof, but told him there was an outstanding option. This option, which was in writing signed by McGregor, was given to one Cooledge, and, by its terms, would expire March 29th. Cooledge surrendered his option before it expired, and Andrae had it. About a week before it would have expired, Malick told Andrae he had found a customer for the lands, but had forgotten his name, and that such customer wanted an option on them. Thereupon Andrae, of his own motion, struck out Cooledge's name where it first occurred in the option, and inserted Malick's name in place of it, leaving Cooledge's name therein in two other places, and delivered the option to Malick, telling him that it would answer the required purpose until an extension thereof could be procured from McGregor, to whom he made application therefor. The instrument as thus altered, after giving Malick the refusal of the lands, reads as follows: "The said Cooledge can buy the said lands at any time within thirty-two days from this date, and I will cause a good and sufficient deed, free from all legal incumbrances, to be executed to the said Cooledge upon the payment to me of the sum of $30,000. It does not appear that Malick made any use of the option, or did anything after receiving it relating to a sale of the lands. The learned circuit judge granted the nonsuit on the sole ground that, by accepting the option, Malick changed his position from that of an agent to sell the lands to a proposed purchaser thereof, and thus defeated the right of his principal, Russell, to recover the agreed compensation for finding a purchaser. We think this an erroneous ruling, for several reasons: The option was functus officio by reason of its surrender by Cooledge, and probably conferred no rights upon Malick for that reason. (2) It does not appear that Andrae had any authority from McGregor to grant an option on the lands. Indeed, it was understood by both Malick and Andrae that the latter had not, for they then agreed to send to McGregor for an extension thereof, and did so, which would not have been done had they supposed Andrae had power to give an option. (3) The option, in its mutilated condition, could not have been enforced, for it gave what is termed therein a refusal of the lands to Malick, and gave all the fruits thereof to Cooledge. It could not have been enforced, were it otherwise binding, without a reformation thereof, and, on the facts here proved, no court would have reformed it at the suit of Malick, but only at the suit of Youmans, for whose benefit it was intended. (4) The testimony is undisputed that it was given for the sole purpose of facilitating the sale of the lands to Youmans. Malick had no idea of purchasing the lands, and Andrae did not suppose that he had. There is no legal objection to the admission of parol testimony to show the true character of the transaction. Agents are frequently invested by their principals

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with the title to property, for convenience in making sales thereof, and we are aware of no rule of law which excludes parol testimony to show the purpose of the transaction when proof of it becomes necessary. For the above reasons, we think the court erred in holding that the acceptance of the option by Malick defeats this action,

The learned counsel for defendant argued with much earnestness and ability that, conceding the court gave an unsound reason for granting the nonsuit, there still remains a valid reason why it should not be disturbed. The price fixed by McGregor for the whole of his lands was $30,000. Andrae informed Russell that McGregor desired no larger price should be demanded, and instructed him accordingly. Malick violated this instruction, and asked Youmans $37,500 for the lands. Because he did so, counsel maintains that Russell cannot recover against Andrae any commission on the sale, notwithstanding he, through Malick, found a purchaser. Assuming, for the purposes of the case, that an agent to sell property, who violates his instructions, cannot recover commissions, we think the rule has no application here. Had Andrae brought an action against McGregor to recover his commissions, the rule would have been applicable, and Malick's violation of McGregor's instruction would be imputed to Andrae, and would defeat a recovery. But such violated instruction was the instruction of McGregor, not Andrae, and McGregor alone was liable to be injured by its violation. He alone was in a position to assert it as a defense to any claim for commissions. It was also competent for him to waive the violation of his instruction, and he did waive it by paying Andrae the stipulated commission which Russell, through Malick, had earned for him. Such waiver binds Andrae, Russell, and Malick. It estops Andrae from asserting such violation of McGregor's instruction as a defense to this action, and would estop Russell, after he receives his commission, from asserting it in an action brought by Malick to recover his stipulated share of such commission. The opposite rule would allow Andrae to retain money received by him for Russell's services, through Malick, which he had agreed to pay Russell, because the latter had violated an instruction of McGregor, which violation McGregor had fully waived, as he lawfully might. The injustice of such a rule is obvious, and it is rejected without hesitation. The judgment of the circuit court must be reversed, and the cause will be remanded for a new trial.

jury was impaneled, defendant moved that the plea be sustained, which was overruled. No further proceedings were had in regard to the plea, and defendant was convicted. Held, that the question considered was not whether the plea was sufficient, but whether it was supported by the evidence in the record.

2. Under Rev. St. Wis. § 4809, providing that, where an accused person makes oath that the magistrate before whom he is brought for preliminary examination is not impartial in the matter, such magistrate shall transmit the papers to the nearest qualified magistrate, who shall proceed as if the accused had been first before him, the first magistrate is the proper person to determine who is the nearest magistrate, and his determination is conclusive.

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3. Where an information counts charging separate burglaries on the same night and in the same vicinity, it was not an abuse of discretion to refuse to require the prosecutor to elect between them.

4. A verdict may be received when the court is in regular session, and the defendant is present, even though his counsel is absent.

5. A verdict will not be set aside because the

prosecutor, in violation of Rev. St. Wis. § 4071, commented on the accused's failure to testify in his own behalf, when the record fails to show that any objection was made at the time, or that any ruling was had in regard thereto.

6. The fact that the sentence, as set out in the bill of exceptions, does not affirmatively show that it was signed by the judge, is no ground for setting it aside. It will be presumed to be the sentence of the court, in the absence of an affirmative showing to the contrary.

7. Laws Wis. 1889, c. 94, creating the municipal court of Ashland county, and giving it exclusive jurisdiction of all criminal cases except for rape and murder, provided, in section 10, that it should not affect the jurisdiction of any court as to causes pending therein at the time the municipal court was organized. Held, that a cause was "pending" in the circuit court as soon as a person was held to bail by a magistrate to answer therein to an information, and such court had jurisdiction to determine the cause, although the new court was organized before trial.

Appeal from circuit court, Ashland county.

Cole & O'Keefe, for plaintiff in error. J. M. Clancey, Asst. Atty. Gen., for the State.

TAYLOR, J. The plaintiff was convicted of the crime of burglary committed in the city of Ashland, in the county of Ashland. The district attorney of said county, on the 6th of June, 1889, filed in the circuit court of said county an information in the following language: "I, George P. Rossman, district attorney for said county, hereby inform the court that on the 16th day of January, in the year 1889, at said county, R. G. Martin, at the store building of R. W. French, situated in the city of Ashland, in said county, in the night-time of the same day, then and there unlawfully, feloniously, and bur glariously did break and enter, with intent then and there the goods, chattels, and property of said R. W. French, then and there in said store building being found, then and there feloniously and burglariously to steal, take and carry away, against the peace and dignity of the state of Wisconsin. (2) I, Geo. P. Rossman, aforesaid, do further inform the court that on the 16th day of January, in the year 1889, at said county, F. G. Martin did, at the store building of M. Silber & Co., situated in the city of Ashland, in

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said county, in the night-time of the same day, then and there unlawfully, feloniously, and burglariously did break and enter, with intent then and there the goods, chattels, and property of said M. Silber & Co., then and there in the said store building being found, then and there feloniously and burglariously to steal, take and carry away, against the peace and dig nity of the state of Wisconsin. Dated May 27th, 1889. GEORGE P. ROSSMAN, District Attorney." Before any other proceedings were had in the case, the plaintiff in error, by his attorney, filed a plea in abatement, as follows: "And now comes defendant above named, and, as a plea in abatement to the information herein filed, alleges: (1) That defendant was not, prior to the filing of the information herein, examined before any magistrate, or other officer qualified by law, upon the said charge; and as to the offense set out in said information he never at any time had a preliminary ex. amination therein, or for such offense, and has never on said charge waived the same. (2) That, on the second count in said information set forth, said defendant alleges that neither prior to the filing of the same, or at any other time, has defendant had a preliminary hearing or examination on the said charge before any magistrate or officer qualified by law to hold the same, and that the defendant has never waived the same. [Signed] F. G. MARTIN." plea was verified by the defendant's affidavit, as follows: "State of Wisconsin, Ashland county-ss.: F. G. Martin, being duly sworn, upon oath says that he is the defendant above named, and that he has heard read the above and foregoing plea in abatement, and knows the contents thereof, and that the same is true of his own knowledge. F. G. MARTIN. Subscribed and sworn to before me this 6th day of June, 1889. W. O'KEEFE, Notary Public, Ashland County." The only proceeding had upon said plea in abatement, appearing in the record of the trial, was as follows: "Motion by the defendant that the plea in abatement be sustained in his behalf. Motion denied, and exception by the defendant." The further proceedings in the case were as follows: The defendant then moved "that the attorney for the state be required by the court to elect upon which count in the information he will stand upon." This motion was also denied, and the defendant excepted; and thereupon a jury in the case was sworn, and the state produced its witnesses, and the case was tried by the jury. No witnesses were produced on the part of the defendant. Before the case was submitted to the jury, the state moved the court to withdraw from the consideration of the jury the second count in the information. The court granted the motion, and the defendant excepted. After hearing the argument of counsel and the instructions of the court, the jury returned a verdict finding the defendant guilty of the offense charged in the first count of the information; and thereupon the defendant moved in arrest of judgment, and for a new trial, on the ground that the verdict was rendered in the absence of counsel for

the defendant, and upon the ground that the counsel for the state had improperly commented upon the fact that the defendant did not testify in his own behalf on the trial. This motion was overruled, and thereupon the court sentenced the defendant in the following language: "It is hereby adjudged that you, Frank G. Martin, be sentenced to be confined at hard labor in the state-prison at Waupun, by the warden thereof, for the period of four years; that the first day of your imprisonment, and the 5th day of February each year thereafter, be solitary confinement. The term of your imprisonment shall begin at noon to-day. Let the sheriff of Ashland county put this judgment into execution. Dated this 8th day of June, A. D. 1889." The defendant excepted to the instructions of the court to the jury, and also to the rulings of the court upon the introduction of evidence on the trial. A bill of exceptions has been duly settled, in which the exceptions of the defendant are preserved.

The first error alleged by the learned counsel for the plaintiff in error is the ruling of the trial court upon his motion to sustain his plea in abatement. What the object of the learned counsel was in making such motion at the time it was made, and before a jury was impaneled to try the issues in the case, is not entirely clear. We think, however, that this court must treat the motion as having been made upon the plea itself, and upon the record therein supposed to be before the court, as of itself containing evidence sufficient to sustain such plea. There does not appear to have been any reply to the plea, either by way of demurrer or reply. It would not be just, therefore, to treat the motion as a motion asking the court to pass upon the sufficiency of the plea as a plea in abatement. Treating the motion as a motion to pass upon the question whether the plea was sustained by the evidence contained in the record in the case, we think it was properly decided that its allegations were not proved by the record.

The object of the plea was to have the court pass upon the question whether the defendant had been properly arrested and examined upon the charges contained in the information before the information against him was filed in the circuit court. Section 4654, Rev. St., as amended by chapter 173, Laws 1881, (2 Sanb. & B. Ann. St. p. 2330,) expressly provides that "no information shall be filed against any person for any offense until such person shall have had a preliminary examination, as provided by law, before a justice of the peace or other examining magistrate or officer, unless such person shall waive his right to such examination;

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no failure or omission of such preliminary examination shall in any case invalidate any information in any court unless the defendant shall take advantage of such. failure or omission, before pleading to the merits, by a plea in abatement." When an examination of a person accused of any crime is had before a justice or other examining magistrate, and such justice or magistrate finds there is reasonable

ground for believing the party charged guilty of the offense charged against him, he shall hold him to trial, and commit him to the jail of the proper county, if bail be not furnished. Sections 4792, Rev. St., (2 Sanb. & B. Ann. St. p. 2370.) And upon holding the party to bail, or committing him, the examining magistrate is required by section 4801, Rev. St., (2 Sanb. & B. Ann. St. p. 2372,) to certify and return to the clerk of the court before which the party charged is bound to appear, within 10 days after the close of the examination, all examinations, evidence, and recognizances taken by such examining magistrate. And section 4653, Rev. St., as amended by chapter 257, Laws 1889, (2 Sanb. & B. Ann. St. p. 2329,) makes it the duty of "the district attorney of the proper county to inquire into and make full examination of all the facts and circumstances connected with any case of preliminary examination, as provided by law, touching the commission of any offense whereon the offender shall have been committed to jail or become recognized or held to bail, and to file an information setting forth the crime committed, according to the facts ascertained on such examination, and from the written testimony taken thereon, whether it be the offense charged in the complaint on which theexamination was had or not." The remainder of the section authorizes the district attorney to decline in certain cases to file an information against the accused. It is clear from the sections of the statutes above quoted that no information can be properly filed against an accused person until a preliminary examination has been had, as authorized and provided by law, unless the accused, upon being arrested and brought before an examining magistrate, shall waive such examination; and it is also equally clear that, under the statute, the want of such preliminary examination can only be taken advantage of by the party informed against by pleading that fact in abatement of the information before plead. ing to the merits. The learned counsel for the plaintiff in error was correct in filing his plea setting up that matter as a plea in abatement before pleading to the merits. The more orderly rule would be for the attorney for the state, in such case, either to demur to the plea, if he thought it insufficient, or, if sufficient, and the state denied its truth, to reply to the plea, and try the issue so formed, before proceeding to try the defendant for the offense charged. The regular course of proceeding was not taken in this case, and, as said above, we must treat the action of the court in not allowing the plea as founded upon the evidence furnished by the return of the examining magistrate, on file in the court, and upon which the information was based. Treating that as before the court, the plea was wholly unsupported. The return of the examining magistrate conclusively showed that an examination had been had in compliance with the law, and that he had made the proper order holding the defendant to bail, or had committed him for want of bail.

The learned counsel for the plaintiff in

error contends that the return of the examining magistrate shows on its face that no legal examination had been had, and alleges that the examining magistrate had no jurisdiction to make such examination. This contention is based on the allegation that the accused was arrested and brought before a justice of the peace, and on being brought before such justice he made the proper affidavit for the removal of the case to some other justice or magistrate, and that it was the duty of the magistrate before whom the accused was first brought to transmit the proceedings to the nearest justice or magistrate, and alleges that the magistrate to whom the proceeding was transferred was not the nearest justice or magistrate. The return of the magistrate shows that that objection was made by the accused when he was brought before him, and that he filed an affidavit showing that the examining magistrate was not the nearest justice or magistrate to the justice transmitting the papers to him. The statute under which the case was transferred by the justice before whom the accused was brought is section 4809, Rev. St. By this section it is provided that if the accused "shall make oath that from prejudice or other cause he believes that such justice or other magistrate will not decide impartially in the matter, then the said justice or other magistrate shall transmit all the papers in the case to the nearest justice or other magistrate qualified by law to conduct the examination, who shall proceed with the examination in the same manner as though said defendant had first been brought before him." The learned counsel for the plaintiff in error claims the right to raise the question, before the magistrate to whom the papers are transmitted, that he is not the nearest justice or magistrate to the justice who transmitted the papers to him. On the other hand, the district attorney claims that this question must necessarily be settled by the justice to whom the application is made. We are inclined to hold that the contention of the district attorney is a right construction of the statute, and that to construe it as contended for by the counsel for the plaintiff would lead to great_confusion, and tend to defeat justice. If the question could be agitated before the magistrate to whom the papers were transmitted, and he should be of the opinion that the first justice had made a mistake, he could do nothing in the matter, and the prisoner would be at large, and justice might be entirely defeated. This question does not seem to have been expressly determined by this court. The question has been before the supreme court of Iowa upon a statute in all respects like the statute of this state, and that court held that the justice transmitting the pa- · pers was the justice to determine who was the nearest justice, and his judgment thereon was conclusive upon the parties. Tennis v. Anderson, 55 Iowa, 625, 8 N. W. Rep. 477; Connell v. Stelson, 33 Iowa, 147; Bremner v. Hallowell, 59 Iowa, 433, 13 N. W. Rep. 412. The construction given to the statute by the Iowa court, it seems to us, is the only construction consistent

with a proper administration of justice. We must hold, therefore, that the records in the courts in this case at the time the defendant filed his plea in abatement, and when he moved the court to allow the same, disproved the truth of his plea, and no injustice was done to the defendant by disallowing the same. If there was any irregularity in the manner of disposing of the plea, it did not prejudice the defendant's rights, and is no ground for reversing the judgment.

It is insisted that the motion made to the court to compel the district attorney to elect which one of the counts in the information he would rely upon on the trial should have been granted, and that it was error not to grant the motion. Whether the court should have directed the district attorney to elect was a matter very much in the discretion of the trial judge; and such election cannot be demanded as a matter of right. Newman v. State, 14 Wis. 402; State v. Fee, 19 Wis. 562-565; State v. Gummer, 22 Wis. 442-443; Miller v. State, 25 Wis. 384; State v. Leicham, 41 Wis. 577; section 4650, Rev. St.; 1 Bish. Crim. Proc. § 421 et seq., § 444 et seq. These authorities clearly show that it is not error to join in the same information counts stating separate and distinct offenses, and that it is in the discretion of the trial court whether the prosecuting attorney shall be compelled to elect upon which he will proceed. In the case at bar the indications were that separate offenses had been committed in the same locality about the same time, and the circumstances pointed to the defendant as having committed both. Under these circumstances it was proper that the district attorney should charge both offenses in the same information; and it was not an abuse of discretion on the part of the court not to require him to elect, before the evidence was presented, upon which count he would ask for a verdict. There certainly was no error of which the accused could complain in with drawing from the consideration of the jury the guilt or innocence of the defendant as to the offense charged in the second count in the information. We have examined the exceptions taken to the evidence, and to the charge of the court to the jury, and find no substantial errors committed in either the admission of evidence or in the instructions to the jury. In these respects the case appears to have been carefully and fairly tried and submitted.

There was no error in receiving the verdict in the absence of the attorney for the defendant. The verdict was received while the court was regularly in session; and, if the counsel for the defendant desired to be present when the verdict was received, there was nothing to hinder his being present, and it was not the duty of the court to send for him. It was sufficient if the defendant himself was present when the verdict was received, and there is no complaint in that respect.

The learned counsel insists that the court should have granted a new trial because the district attorney made improper comments to the jury upon the fact that the

defendant did not offer himself as a witness in his own behalf. If what the learned counsel stated in his affidavit for a new trial is a correct statement of what the district attorney said upon that question, there can be no doubt as to the gross impropriety of such statements. Section 4071, Rev. St., reads as follows: "In all criminal actions and proceedings the party charged shall at his own request, but not otherwise, be a competent witness; but his refusal or omission to testify shall create no presumption against him or any other party thereto." This section having expressly declared that the omission of the defendant in a criminal action to testify shall create no presumption against him, it was highly improper to intimate or argue to the jury that such omission should raise any presumption against him as to his guilt. On the part of the state, it is denied that the district attorney made the remarks attributed to him by the plaintiff in error. There is nothing in the bill of exceptions, or even in the affidavit of the counsel for the defendant up on which he asked to set aside the verdict and for a new trial, which shows that such remarks were objected to by the defendant, or that the attention of the court was drawn to the fact that such remarks were being made to the jury, or any ruling of the court in regard to the propriety or impropriety of the same. Upon this state of the record, the question as to the propriety of the attorney's remarks are in no way in the case for the consideration of this court. Baker v. State, 69 Wis. 32-41, 33 N. W. Rep. 52; Hoffman v. State, 65 Wis. 46, 26 N. W. Rep. 110; Santry v. State 67 Wis. 67, 30 N. W. Rep. 226.

It is urged by the learned counsel that there is no safficient judgment or sentence in the case. It is asserted that the record does not show that the sentence pronounced against the defendant was pronounced by the court. In looking at the bill of exceptions, it is sufficiently shown that the sentence was pronounced by the court, and entered by the clerk on his minutes as the sentence of the court. This is sufficient, without the signature of the judge, or even that of the clerk. For anything appearing in the record or the bill of exceptions, the sentence and judgment may have been signed by the judge and clerk both; and, before this court would say the defendant had not been properly sentenced by the court, that fact must be plainly made to appear to this court. That the sentence in this case was the sentence of the court appears from the bill of exceptions quite as clearly as it did in the case of Franz v. State, 12 Wis. 536, which this court held sufficient.

The learned counsel for the plaintiff in error, as a further and final proposition, allege that the circuit court of Ashland county had no jurisdiction to try the information against the plaintiff in error. This proposition is founded upon the fact that on the 15th day of March, 1889, the legislature of the state created the municipal court of the county of Ashland, and gave that court exclusive jurisdiction to try all criminal cases arising in said county except for rape and murder. Admit