Oborn v. State, 143 Wis. 249. spection by the court in all instances to guard against anything improper so reaching them from the outside or the outside from them, and that no objection was made by counsel upon either side. No evidence of such announcement having been made appeared upon the clerk's or the reporter's minutes, neither did counsel on either side have any recollection of it. Further irregularities in respect to the conduct of the jurors is suggested in that, as claimed, two jurors, during the trial, while standing at the open window of their room talked with two persons outside. There was much proof to the effect that no such conversation occurred, except that a person from the street on the occasion of the claimed conversation, asked his father, who was on the jury, for some keys which, without saying anything, he passed out to the son. The circuit judge explained that all written communications between jurors and outside parties, four or six in number, were between jurors and members of their families and that none were delivered during the trial which contained any reference to the case. The suggested irregularities with the jury were brought to the attention of the trial court as ground for a new trial. Thus it will be seen that not only is there no showing that the accused was prejudiced by the occurrence complained of, but prejudice is pretty clearly negatived. Courts should be slow to disturb verdicts upon the ground of alleged misconduct of jurors or interference with their deliberations. The motive to cast suspicion upon the result of a trial is so great, and the opportunity to do it so open and so easily embraced, especially in a case of great public interest, that, in most any such case, many little incidents actually occurring of a perfectly legitimate character may be easily given a false coloring, and other incidents, not legitimate, may be brought to the attention of the court without any reasonable ground for an inference of fact as to their having affected the result, and Oborn v. State, 143 Wis. 249. still other incidents may easily be falsely claimed to have occurred, so that unless such matters are held not to be sufficient to disturb the course of justice, in the absence of clear indications, and by preponderating inferences of fact, that they, within reasonable probability, at least, materially affected the result adversely to the complaining party,—the administration of justice would be intolerably embarrassed to the great detriment of public and private interests. Doubtless the constructors of the Code by sec. 2829, Stats. (1898), designed that such should be the guiding idea of judicial practice in this state when they there provided, in mandatory language, that: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." That has been referred to as a most beneficent provision, precluding disturbance of judicial results by any inconsequential matter, and that, in the spirit of it, all irregularities and errors should be deemed inconsequential, in the absence of reasonably clear indications that the adverse party was prejudiced thereby, in that, otherwise, the result, as to him, might, within reasonable probabilities, have been different. Under the guide of that statute judgments have been affirmed though grounded on records bristling with error, of which the following are significant illustrations: Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Miller v. State, 139 Wis. 57, 94, 119 N. W. 850. Such is believed to have been the general trend of the decisions of this court, though it must be admitted that it is not in harmony with expressions made now and then to the effect that from the mere occurrence of error prejudice is presumed. Doubtless, it was in great measure, because of such occasional expressions that the legislature, very recently, thought, by Oborn v. State, 143 Wis. 249. ch. 192, Laws of 1909, to challenge judicial attention anew to the declared public policy of the state in its written law, in providing that, no judgment in either a civil or criminal case shall be disturbed except for error which, in view of the whole situation, in the judgment of the court, affected the substantial rights of the party seeking to have it disturbed. That, in the judgment of the writer, is no more than emphasizing what was covered by the early Code provision and has been, in general, intended by the court to be firmly and fully carried out. As such, it is welcomed by those who firmly believe it was unnecessary and does not really change the procedure in this state. At least, it aids in unifying judicial sentiment, if that were necessary, as to the proper method of administering justice in order to render right results as certain, speedy, and economical as practicable, and in eliminating seeming or actual departures therefrom in the past, as evidenced by Hack v. State, 141 Wis. 346, 124 N. W. 492. Of course, the legislature did not intend to, and could not if it would, control the court in the administration of justice by the act of 1909. It was only intended to declare a public policy as to such administration which it is the duty, as well as the pleasure, of the court to conform to, so far as it reasonably promotes, or does not unreasonably interfere with, the exercise of their constitutional jurisdiction. There is no longer, if there ever was, any reason for holding that a judgment should be reversed for mere errors, however numerous and inexcusable, or errors in the absence of its reasonably appearing as an inference of fact that the party seeking reversal was prejudiced thereby, in that had the error not occurred the result, as to him, might, within reasonable probabilities, have been more favorable. That must be the true test of prejudicial error, displacing, if necessary, the idea that prejudice is to be presumed from the mere occurrence of error and giving controlling dignity to the idea that prejudicial error is presumed against, this presumption to prevail Oborn v. State, 143 Wis. 249. till overcome, to the extent above indicated, by preponderating inferences of fact. To go further than suggested would probably invade the constitutional right to have the weight of probabilities respecting matters of fact determined by a jury or the trial judge according to circumstances. In view of the foregoing it is thought that the claimed misconduct of the jury must be held to have been inconsequential. That is in harmony with the ruling in Cupps v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546. It is claimed to be out of harmony with Havenor v. State, 125 Wis. 444, 104 N. W. 116; Hurst v. Webster Mfg. Co. 128 Wis. 342, 107 N.W. 666; Du Cate v. Brighton, 133 Wis. 628, 114 N. W. 103; and Dralle v. Reedsburg, 135 Wis. 293, 299, 115 N. W. 819, all decided, as will be seen, before the recent legislative expression of public policy. In any event, they are in a class by themselves. They deal only with private communications between the trial judge and the jury. Doubtless, the rule thereof should not be extended in letter or spirit. No more need be said at this time. We may well say, in closing, that notwithstanding the practice of allowing written communications to pass between jurors and outside parties in such a serious case as this, or any, under the circumstances shown here, is held to be harmless error, it must be condemned as improper. The fact that many irregularities may occur in the progress of a trial without affecting the result, should not lead to any laxity in judicial procedure and will not be regarded as any excuse for it. In capital cases, especially, the greatest care should be taken by trial judges to so administer affairs as to leave the final result free from any suspicion of improper influence. To that end the jury from the time of being sworn in the cause till deliverance of their verdict may well be kept as free as practicable from all, even appearances of, opportunity for communicating with outside parties, or receiving communications from them. Petition of Pierce-Arrow Motor Car Co. 143 Wis. 282. Thus we have reviewed the record of the two trials in this cause, giving careful attention to the complaints in quite minute detail without finding any harmful error, and very little error at all. On the whole, the cause seems to have been very fairly tried and the accused found guilty in due course. So the judgment must be affirmed. By the Court.-So ordered. A motion for a rehearing was denied October 4, 1910. IN RE PETITION OF PIERCE-ARROW MOTOR CAR COMPANY. IN RE PETITION OF CHALMERS-DETROIT MOTOR CAR Co. IN RE PETITION OF LOCOMOBILE COMPANY OF AMERICA. IN RE PETITION OF POPE MANUFACTURING COMPANY. September 13-October 4, 1910. Supreme court: Superintending control: Jurisdiction, when exercised: Writ of prohibition: Foreign corporations: Service of summons on agent: Contract of sale or of agency? Conspiracy: Where cause of action arises: Appeal. 1. The jurisdiction of the supreme court in respect to its superintending control over inferior courts is not to be exercised upon light occasion, but only upon some grave exigency; the writs by which it is exercised will not be used to perform the ordinary functions of an appeal or writ of error; the duty of the court below must be plain and the actual or threatened violation thereof clear; the results must not only be prejudicial but must involve extraordinary hardship; the remedy by appeal or writ of error must be utterly inadequate; and the application for the exercise of the power of superintending control must be speedy and prompt. 2. In order that the duty of the court may be plain within the foregoing rule, the situation must be such that hardly more than a statement of the facts is necessary to convince the legal mind as to what that duty is. Where questions of law or fact are involved of such difficulty that a judge may reasonably, proceed |