#### GEORGE W. MILLER, *Plaintiff in Error, vs.*HENRY D. WATERMAN and HEMAN W. SMITH, *Defendants in Error.*

ERROR TO ROCK COUNTY COURT.

The receiving notice in conformity with sections 57-60, of chapter 98, of the Revised Statutes, by a party'to a cause, from the adverse party, to appear- and testify, does-not entitle him to testify in his own behalf, nor make him a general witness in the cause, unless he is examined by the adverse party.

This was an action of trespass *de bonis asporiatis,*commenced by the present plaintiff in error against the defendant in error, before a justice of the peace. The-plea was the general issue, with notice of justification. The trial was had before the justice, who rendered judgment in favor of the plaintiff for the value of the property as proved.

Previous to the trial, the plaintiff had given notice to Smith, one of the defendants, to appear and testify in the cause, but did not call and examine him. After the plaintiff had rested, the counsel for the defendants called and offered the defendant, Smith, as a witness, on the ground that he had been notified by the plaintiff to appear and testify. He was objected to by the plaintiff and rejected by the justice. For this alleged error the cause was removed to the County Court, where the judgment of the justice was reversed. It is now brought here by writ of error.

*W. M. Crosier,*for the plaintiff in error.

*Nog fie <& Pritchard,*for the defendants in error.

*91*By the*Court,

Smith, J.

The decisive point in this case is presented by the ruling of the County Court . in regard to the rejection of the defendant, Hernán W. Smith, offered as a witness by the defendants in error before the justice.

It seems the defendant Smith was notified by the plaintiff to appear and testify in the cause, but was not called and examined by,him. After the plaintiff had rested, the defendants called the said defendant, •Smith, and offered him as a witness, but he was rejected by the justice. The plaintiff had judgment before the justice, and the defendant removed the cause by certiorari to the County Court, where the judgment of the justice was reversed for ‘the alleged error of .the'justice in rejecting Smith as.a witness.

At the last term of this court, the question here presented was settled. *Hart vs. Janes,*1 *Wis. R.*61. We there held that the receiving notice, under sections 57-80, of chapter 98, of the Revised Statutes, by a party to a cause to appear1 and testify, in conformity therewith, does not entitle such party to testify in his own behalf, nor make him a general witness in the cause, unless he is examined by the adverse party. The difference between the provisions of the old Revised Statutes of the Territory, and the present, was then pointed out, and. the rule of practice under, and the construction of, the present statute was definitely settled.

The writ of error in this case was brought before the decision in *Hart vs.*Janes, was published, and the counsel for the plaintiff was' doubtless misled by former adjudications upon the.old Statutes. The County Court erred in the construction which it gave to the present statute, and its judgment must be reversed -with costs.