Torrey and another, Ex'rs, vs. Nixon.

negotiations into an oral contract to occupy the land upon the same terms. Wolf v. Mitchell, 24 La. An., 433; Quackenbos v. Lansing, 6 Johns., 45.

For the respondent, a brief was filed by J. V. & C. Quarles, and there was oral argument by J. V. Quarles. They contended, 1. That the written lease was prepared some time after Paddock had taken possession under the oral agreement made by defendant, and the rights of the parties were fixed by the fact of occupation. It had never been executed as a contract, had no legal existence, and could not have been used by plaintiffs as evidence. Gilchrist v. Brooklyn, 59 N. Y., 495; Finch v. Phillips, 41 Wis., 391. 2. That even if this paper had been duly executed and delivered by Paddock, and accepted by plaintiffs, it would only have given plaintiffs a remedy against Paddock, which would be merely cumulative, and would have had no effect upon the original contract. Tarr v. Northey, 17 Me., 115; Throop on Verbal Agreements, 219, and cases there cited. 3. That the contents of the paper had no relevancy to the issue as an admission. If a lease was made by Torrey for Paddock to execute, that was an independent fact, which could be proved without resort to the paper itself, and which the paper would not establish. Green v. Goble, 7 Kans., 300; Dalison v. Stark, 4 Esp. R., 163; Doe v. Cartwright, 3 Barn. & Ald., 326. 4. That the evidence offered to show that there was a blank for a surety for the rent, and that the instrument was presented to the defendant to sign as a surety, did not tend to establish the allegations of either party. It must be regarded as a conditional admission, or unaccepted proposal. 2 Starkie on Ev., 22; Doe v. Cartwright, supra; Flood v. Mitchell (N. Y. Ct. of App.), 4 Weekly Reg., 166. 5. That in view of the finding of the jury that the contract was made originally as claimed by plaintiffs, the subsequent transactions become immaterial; and even if the rejection of the testimony was a technical error, it wrought no prejudice to the defendant.

Torrey and another, Ex'rs, vs. Nixon.

LYON, J. Due proof having been made of the loss of the lease which the plaintiff Torrey procured to be drawn, and which he and Paddock signed, and the plaintiffs having failed to produce it on notice, we cannot doubt that the defendant should have been permitted to prove its contents. Torrey testified that the plaintiffs leased the farm to the defendant, and not to Paddock; and it is manifest that if the instrument was what the defendant claimed and offered to prove it to be, it would go far to impeach the accuracy of Torrey's testimony, and to sustain that of the defendant, who testified that the agreement to lease the farm was with, Paddock and not with him. Discussion of so plain a proposition is useless. The offered testimony was relevant to the issue, and the court should have permitted it to go to the jury. The rejection of it was not a mere technical or immaterial error, but one which may have prejudiced the defendant.

The judgment of the circuit court must be reversed, and the cause remanded for a new trial.

RYAN, C. J. Upon the argument of this appeal, my attention was first called to Finch v. Phillips, 41 Wis., 387, cited by the respondent, in which it appears to be held that, though it was error to allow a party to give in evidence in chief his own letter, relating to the transaction out of which the action arose, yet, as it was only cumulative to his testimony, it was not ground for reversal. Hazelton v. Bank, 32 Wis., 34, and Schaser v. State, 36 id., 429, are referred to in support of the position. I cannot think that either of the cases supports it, though there is a loose dictum in the latter which seems to countenance it. And it is in direct conflict with Sorenson v.. Dundas, 42 Wis., 642.

Finch v. Phillips was decided during my absence from the court. The judgment was reversed upon another ground, and. the position stated seems to have been immaterial to the decision. It therefore has not the weight of authority. And,.

VOL. XLIII.-10

Rood vs. The Chicago, Milwaukee & St. Paul Railway Company.

with great deference, I must take leave to enter my dissent from the position.

Parties cannot manufacture evidence for themselves, either primary or cumulative, by statements, verbal or written, subsequent to the transaction to which they relate. Such statements are very generally cumulative to other evidence. When parties are witnesses themselves, they are almost necessarily cumulative. And it does not affect their incompetence that they are cumulative. A party cannot be permitted to strengthen his own or other testimony, by proof of his own statements made in pais, at his own pleasure, without sanction. One who has a controversy and writes letters or makes speeches about it, must do so at his peril of their being given in evidence against him, but without hope of being able to aid his case by giving them in evidence himself. And when they go to a material point, their admission is ground of reversal, whether they be primary or cumulative. I beg leave, therefore, to say that I cannot accept the rule suggested in Finch v. Phillips as one binding on this court.

By the Court. Judgment reversed, and cause remanded for a new trial.

ROOD VS. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

REPEAL OF STATUTE: Effect on penalties incurred.

After the repeal of ch. 273 of 1874 (the Potter Law), no recovery could be had in any action then pending under the penal provisions of that act, either by virtue of sec. 33, ch. 119, R. S. (Dillon v. Linder, 36 Wis., 344), or by virtue of the clause in the repealing act (ch. 57 of 1876), which provided that nothing therein contained should "in any manner affect any litigation " then pending in any of the courts of this state, or of the United States.

Rood vs. The Chicago, Milwaukee & St. Paul Railway Company.

APPEAL from the Circuit Court for Rock County. This action was brought under the provisions of ch.. 273, Laws of 1873, to recover three times the amount of an alleged excess over legal charges, exacted by the defendant company on the transportation of a quantity of lumber. The case was tried by the court, without a jury, in December, 1875, and judgment was entered on the 10th of March, 1876, in favor of the plaintiff, for the sum of $1,591.65 and costs. The written finding of the court, which was filed with the case, and upon which judgment was finally entered, bears date December 16,

1875.

Chap. 57, Laws of 1876, approved February 24, 1876, and published March 1, 1876, repealed those sections of the act of 1873 under which the action was brought, with the following proviso: "Provided, that nothing herein contained shall in any manner affect any litigation now pending in any of the courts of this state, or any court or courts of the United States."

Defendant appealed from the judgment.

For the appellant, separate briefs were filed by John W. Cary and William Ruger, and there was oral argument by Mr. Cary:

1. The repealed statute creating new offenses, and the recoveries under it being wholly penal, the saving clause must receive a strict construction. Bay City etc. Railroad Co. v. Austin, 21 Mich., 390, 408, 414; Dillon v. Linder, 36 Wis., 344; Sedgw. Stat. and Con. Law (2d ed.), 279-281, and notes; Potter's Dwarris, 245, and note (a), 279, 280. This clause saves pending "litigation" only. Litigation is the contest of the parties to a suit; it begins when the first step is taken toward defense, and ends when the cause is submitted for decision. The term is not equivalent to "right of action," nor even to "action." Judgment is no part of the litigation, but follows after it. This case is not within the letter of the saving clause, because no litigation was pending when it took

Rood vs. The Chicago, Milwaukee & St. Paul Railway Company.

effect, and because this saving of a litigation does not save the right of action, or the right to any particular judgment. Dillon v. Linder, supra; Bird v. Fake, 1 Pin., 290, 298; Johnson v. Meeker, 1 Wis., 436; Brandeis v. Neustadtl, 13 id., 146. 2. That the taking away or saving of a right of action does not affect the remedy, and the reverse, are old rules of construction. It is fair to assume that legislative bodies adopt apt language, in view of these rules, to express the purpose intended, and that in all cases the intent is no broader than the letter. Potter's Dwarris, 274, note 4; Harrington v. Smith, 28 Wis., 43, 67. A review of the legislation of this state shows that these rules have long been recognized and acted upon. Terr. Stats. 1839, p. 407, §§ 4-7; R. S. 1849, ch, 157, secs. 2-4; R. S. 1858, ch. 119, sec. 33, and ch. 161, secs. 2-4, 13; Laws of 1874, ch. 185, sec. 17; Laws of 1875, ch. 334, sec. 7; Laws of 1876, ch. 13, sec. 24. To construe a clause relating to litigation only, as intended to save inchoate rights in controversy, would be to interpolate words which the legislature omitted, with the precedents before them and with. knowledge of the prior judicial and legislative construction. 3. In administering penal statutes, courts do not speculate concerning or attempt to give effect to unexpressed intent. 4. General statutes as to the effect of repeals on pending actions are inapplicable, because of the special provision as to such effect, in this case. But the only general provision applicable in any event (sec. 33, ch. 119, R. S.) has already received a construction favorable to appellant, and its language is much more suggestive of an intent to save rights of action than that of the clause before the court. Dillon v. Linder, 36 Wis., 344.

For the respondent, briefs were filed by Cassoday & Carpenter, and there was oral argument by Mr. Cassoday:

1. The legislature which adopted the general saving section construed by this court in Dillon v. Linder, could not bind a subsequent one to any special mode of repeal (Kellogg v.