This was an action of assumpsit, brought by the defendant in error against the plaintiff in error in the circuit court .of Sheboygan county. The defendant below pleaded the general issue and gave notice of special matter in defense. Upon the issue joined, the cause was tried, and the jury, under the instructions of the court, found a verdict for the plaintiff, the defendant in ei’ror, upon which judgment was rendered. The defendant sued out his writ of error, and now seeks a reversal of the judgment given.
Many errors are assigned, a few of which will be considered. There appears to be no question that the court, in the instructions given, charged the jury upon the points of law legitimately arising upon the facts evolved upon the trial. This is said upon the hypothesis that a person may waive a tort and sue in assumpsit; although the court are by no means disposed to hold, that in this particular case, as here presented, such waiver would enable the plaintiff below to maintain this action in the form adopted, though it.were admitted that the defendant committed a fraud upon the plaintiff in the original transaction between the parties.
It appears from the bill of exceptions that the court charged the jury — 1. That the lands mentioned in the declaration were reserved by the United States for salines until after the sale by the defendant to the plaintiff, and that no entry could be made upon them for settlement. 2. “ That Jansen, being a mere trespasser, could establish no property in the improvements upon those lands, or the crops thereon.”
In the instruction first given, as above, it is obvious that it was a question of fact, whether or not the lands “ mentioned in the declaration were reserved by the United States for salines, until after the sale by the defendant to the plaintiff.” This was not a matter of which the court could take judicial notice. The judge must have been convinced of the fact by the evidence adduced. That conclusion was probably, from the testimony, well based. How that may be is, however, *220quite immaterial, because if it were correct, the court erred in deciding the question. It not being a question of law, but of fact, the point should have been decided by the jnry, and not by the court. The rule of law is clearly established in civil cases, that the court must decide the law and the jury the facts.
In the second instruction quoted above, the same error exists. Here the court, in its language, speaks to the jury as though it were admitted by the parties that the defendant was a trespasser. The language is, “that Jansen, being a mere trespasser, could establish no property in the property in controversy.” Whether Jansen was or was not a trespasser was a question of fact to be proved, and, when proved, to be found by the jury; and the court erred in assuming that he was a wrong doer. The court should have told the jury what in law would be a trespass, and then to find from the evidence whether the individual was or was not a trespasser within the rule of law laid down. From the views expressed, it is obvious that the judgment is erroneous, and that it should be reversed, a venire de novo awarded, and a new Jrial had.
Judgment reversed.