lied upon by respondent, which denies the right of the public to look into one's private place of business or residence, manifestly has no application. We think it equally clear that the ordinance does not compel an automobile owner or operator to testify against himself, or deprive him of any property rights. It is merely a justifiable exercise of the police power in the interest of the safety of the traveling public. We think it unnecessary to discuss any other objection. The conviction is affirmed. Wheeler MUMFORD v. Adolph M. STARMONT et al., Plffs. in Err. (........Mich.........) 1. The arrest of a motorman to abate a nuisance caused by the running of when the trolley wire is in such poor cars condition that it is liable to come down to the injury of travelers upon the street is not justified when the result can be obtained by cutting the feed wires or removing the controllers from the cars. 2. The mayor and chief of police of a city are liable in damages in case they arrest motormen of street cars to abate a nuisance caused by the operation of cars when the trolley wire is in such poor condition as to be liable to fall, when the object can be effected by merely cutting the wires or removing the controllers from the cars. 3. Upon trial of an action for false imprisonment plaintiff may testify that he felt humiliated by the arrest. 4. It is not error to exclude evidence, in an action by a motorman for false impris onment for attempting to run cars against the orders of the municipal authorities, to the effect that plaintiff was subsequently complimented by his employer for his effort to do so. 5. The exclusion of evidence as to a custom to search prisoners is not er ror in an action for wrongful arrest, where plaintiff was not searched. 6. An instruction in an action for false imprisonment permitting the damages to be fixed by what the average man would suffer under the circumstances is not reversible error, where there is nothing to show that plaintiff suffered less than would the average man, although the measure of damages should actually have been what plaintiff suffered. (February 28, 1905.) NOTE. As to liability of officer for making arrest, see also, in this series, Leger v. Warren, 51 L. R. A. 193, and note, and McCullough v. Greenfield, 62 L. R. A. 906. As to liability of municipal corporation for wrongful arrest generally, see Bartlett v. Columbus, 44 J. R. A. 795, and note, and McGraw v. Marion, 47 L. R. A. 593, and note. ERROR to the Circuit Court for Ingham County to review a judgment in favor of plaintiff in an action brought to recover damages for false imprisonment. Affirmed. The facts are stated in the opinion. Messrs. Black & Reasoner, with Mr. O. J. Hood, for plaintiffs in error: The mayor was authorized to abate this public nuisance. Hart v. Albany, 9 Wend. 571, 24 Am. Dec. 165; Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109; Gunter v. Geary, 1 Cal. 462; Harvey v. Dewoody, 18 Ark. 252; Wetmore v. Tracy, 14 Wend. 250, 28 Am. Dec. 525; Van Wormer v. Albany, 18 Wend. 169; Pedrick v. Bailey, 12 Gray, 161; Brown v. Perkins, 12 Gray, 89; Detroit v. Ft. Wayne & E. R. Co. 90 Mich. 646, 51 N. W. 688. The defendants were authorized to abate this nuisance by the express resolution of the common council. The common council had authority to pass the resolution under the general police power of the state. Under the police power, business injurious or hazardous may be prohibited. People v. Hawley, 3 Mich. 330; People v. Gallagher, 4 Mich. 244. It is as full and complete as any other governmental power. Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6; Richmond, F. & P. R. Co. v. Richmond, 96 U. S. 521, 24 L. ed. 734; Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079. The judicial power will not interfere with the legitimate discretion of any other department of government. Detroit v. Hosmer, 79 Mich. 384, 44 N. W. 622; Dixon v. Detroit, 86 Mich. 516, 49 N. W. 628; Rae v. Flint, 51 Mich. 526, 16 N. W. 887. Individual interests must yield to the public welfare. Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109; Welch v. Stowell, 2 Dougl. (Mich.) 332; Meeker v. Van Rensselaer, 15 Wend. 397; Shafer v. Mumma, 17 Md. 331, 79 Am. Dec. 656; Manhattan Mfg. & Fertilizing Co. v. Van Keuren, 23 N. J. Eq. 255; Coe v. Schultz, 47 Barb. 64. Public officials are not liable for their acts done in good faith. Gardner v. Couch (Mich.) 11 Det. L. N. 340, 100 N. W. 673; Brooks v. Mangan, 86 Mich. 576, 24 Am. St. Rep. 137, 49 N. W. 633; Curnow v. Kessler, 110 Mich. 10, 67 N. W. 982; Tillman v. Beard, 121 Mich. 475, 46 L. R. A. 215, 80 N. W. 248; James v. Sweet, 125 Mich. 132, 84 N. W. 61. Defendants had the right summarily to do what they did. Houghton v. Butler, 4 T. R. 364; Wistar v. Addicks, 9 Phila. 145; American Print Works v. Lawrence, 1 N. J. L. 248, 3 N. J. | promise not to run the cars again they would L. 590, 57 Am. Dec. 420; Meeker v. Van Rensselaer, 15 Wend. 397; 2 Wood, Nuisances, p. 948; 16 Am. & Eng. Enc. Law, p. 991. have to be arraigned for trial, and asked them to decide. Plaintiff said that he would run a car every fifteen minutes if given the opportunity, for such were his instructions. Mr. Russell C. Ostrander also for Before dinner the men were discharged, afplaintiffs in error. ter being taken before a magistrate. The Messrs. Searl & Montfort for defend- defendants stated that it was their intention ant in error. to stop the cars, and that to accomplish that it was necessary to restrain the motormen Hooker, J., delivered the opinion of the for a time. The judge directed the jury to court: The defendants were respectively mayor and chief of police of the city of Lansing. The plaintiff recovered a verdict and judgment for $150 against them, and they have brought the case to this court by writ of error. The action was for false imprisonment, based upon an arrest and detention of the plaintiff by the police, under directions of the defendants. The record shows that the plaintiff was a motorman upon a street car operated upon the streets of Lansing. There was proof tending to show, and the court charged the jury, that the overhead system of the street railway was so out of repair as to be dangerous to persons and horses using the street, owing to the frequent falling of the wires, and that it was a public nuisance. The common council had, by resolution, so declared it, and directed that it be abated. There was evidence to the effect that the running of trolley cars increased the danger by causing the wires to break and fall. The mayor thereupon gave notice to the railway company that it must cease running cars while the wires remained in this dangerous condition. The cars were stopped, and did not run again that day. Some of the feed wires were cut. On the evening of that day the plaintiff learned of the difficulty between the city and the company, but having been ordered to report for duty on July 2d, the next day, he did so, and ran his car south on Washington avenue. On Lis return trip he met two cars at the intersection of the Michigan avenue branch with the Washington avenue line, being the principal business corner of the city. He stopped his car and started to take his controller cranks to the other end of the car, when defendant Starmont took them. The plaintiff took hold of the rope to reverse the trolley, when defendant Starmont took hold of him, and handed him over to a policeman, giving orders to hold him until Starmont should direct his discharge. He was taken to the police station, and, with other motormen who had been arrested, had an interview with the city attorney, who told them that they had resisted an officer and broken city ordinances, that unless they should find a verdict for the plaintiff, and assess his damages, which was done. Counsel have discussed several assignments of error, among them the following: (1) That the court should have directed a verdict for the defendants; (2) that, if not, the cause should have been left to the jury upon the question of plaintiff's right to recover. The testimony conclusively shows that the defendants took the cranks or controllers used in starting plaintiff's car, and that without them he could not have afterwards started the car. Notwithstanding this, they took plaintiff into custody and detained him at the police station for several hours, in a vain attempt to secure a promise that he would not run the car if discharged. Then he was discharged. The car was stopped, and could not be run so long as the police retained custody of it, and there was no justification, so far as the facts disclosed by this record go, for the arrest and detention. The taking of the plaintiff before a magistrate was a further wrong, for there was no ground for the claim that he had been guilty of the offense of resisting an officer. The only thing that he is shown to have done after the controllers were taken from him prior to his arrest was to reverse the trolley of the car. That put the car in readiness to be run, but nothing more, and plaintiff made no effort to start the car. Indeed, he could not have started it, for the policemen had the necessary appliances. The only excuse for the detention of the plaintiff was that he would not promise not to run the car if liberated, and that it was more convenient to arrest and detain all of the motormen than to put a man in charge of each car, it appearing that seven or eight motormen were thus treated. The defendants seek to justify their action upon the ground that the condition of the overhead construction of the street railway line was a public nuisance, in that it was a menace to persons using the highway, and that it was the defendants' duty, both by virtue of their office, and by reason of the action of the common council which had declared it a nuisance, to abate the danger by preventing the operation of cars until the wire should be replaced by new. Defendants had forbidden and prevent ed the railroad company from making tem- | ed by his employer for his effort to run the porary repairs, being apparently of the opin- car. Neither was it error to exclude eviion that they would be ineffective. The con- dence that it was the custom to search prisdition of the wire was not admitted to be so oners, which custom was not followed in this bad as to make the same a nuisance, and it case. The court was justified in saying that is not clear that the judge was justified in there was no evidence tending to show that instructing the jury that it was a nuisance; plaintiff resisted an officer. but these defendants cannot complain of such instruction, for the reason that it is what they claimed, and was distinctly favorable to them. Apparently the judge chose to eliminate that question, in view of his intention to direct a verdict for plaintiff. The undisputed facts in the case are that the defendants arrested and detained the plaintiff, as a means of preventing the running of cars, or, as they state, abating a nuisance. If the circumstances shown were such as to justify the abatement of a nuisance, it could have been done by removing the dangerous wires, or by cutting the same off from the power house from whence the current was furnished. The stopping of the cars was not essential to this. If the danger existed only by the reason of the running of the cars, cutting the wire would have been an effective method of stopping the cars, or they might have been stopped by taking possession of or disabling them without cutting the feed wire. Either of these methods would have been preferable to the wholesale arrest of the motormen. The evidence shows that the plaintiff's car was disabled through the seizure of the controllers. Counsel cite no case recognizing the method taken of abating a nuisance, or preventing injury to citizens, where the person arrested is not chargeable with a public offense or threatened breach of the peace. The conduct of the defendants was so clearly in excess of necessity that we find it unnecessary to discuss at length the authority of municipal officers as to summary abatement of nuisances. Under the admitted facts the court could have done no less than to direct a verdict for the plaintiff. This being so, it becomes unnecessary to refer to the other questions pertaining to that subject, and it is only necessary to inquire whether errors were committed in relation to the amount of damages suffered. We think it was not error to allow the plaintiff to state that he felt humiliated by the arrest. It was not error to exclude evidence that subsequently he was compliment69 L. R. A. In the course of his instructions, the court said to the jury that they should give the plaintiff actual damages, and that they were to say "what damage, if any, the average man would suffer, and to award plaintiff, if anything, such an amount as would compensate him for his actual damages sustained, and no more." In one instance he varied this by saying: "The sense of shame and mortification, of wrong and of outrage, for which the plaintiff may recover, is not limited to the actual time he was under restraint, but includes all such sense of shame, mortification, wrong, and outrage as it can be said the average man under like circumstances might have expected to experience for all time, arising from such arrest and detention as has been shown. No witness has placed a money standard on injured feelings, humiliation, sense of outrage, and mental suffering arising from an unlawful arrest and imprisonment, and no witness can do so. To do that is solely your province. The law has no other remedy for an action for wrong than to compensate, so far as it can by way of money, for the injury done by one man to another. The facts and circumstances surrounding the doing of the unlawful act are to be considered by you, and you are to consider as best you can, from all the evidence, what sense of shame, mental suffering, humiliation, and sense of outrage the average man under similar circumstances might reasonably be expected to sustain, and award the plaintiff the amount thereof as his damages in this case." It is insisted that the measure of damages should not have been what the average man would suffer under the same circumstances, but what the plaintiff had suffered. Undoubtedly the latter is the rule, but in this case there is nothing to indicate that this plaintiff suffered less than the average man, and no injury is discernable from the instructions. We fail to discover any unfairness in the charge. The judgment is affirmed. TENNESSEE SUPREME COURT. J. H. BARNUM v. E. B. LE MASTER et al. (110 Tenn. 638.) CROSS-APPEALS from a decree of the Chancery Court for Shelby County rendered in a suit to enjoin the sale and delivery of certain real estate; defendants appealing from so much of the decree as held that there was no right to make the sale; 1. A conveyance of land from husband and complainant appealing from so much to wife in the usual form, for a valuable consideration, though without words disclos ing an intent to do so, vests in her a separate estate which she may transfer without his joinder or consent. 2. Marriage is a valuable consideration sufficient to support a conveyance from husband to wife. (June 16, 1903.) NOTE.-Effect of conveyance by husband to wife. I. At common law. a. Transfers of real estate, 353. b. Gifts of personalty, 355. II. In equity. a. Conveyances upheld, 357. c. Necessity of trustee, 362. III. Effect of statutes. a. In general, 363. b. Exception of conveyances from husband, 364. c. Exemption from husband's debts, 366. d. Permitting revocation, 367. IV. Conveyance by third person at instance of husband, 367. V. Consideration, 368. VI. Does conveyance create separate estate, 370. VII. Remaining interest of husband. a. In general, 374. b. Curtesy, 375. VIII. Rights against husband's heirs, 377. XI. Form and provisions of conveyance, 380. I. At common law. a. Transfers of real estate. The changes to which well-established rules of law are subject have perhaps no better illustration than is afforded by a comparison of the ancient rule with respect to conveyances between husband and wife with the rule as it obtains at the present time in most jurisdictions whose law is derived from the common law of England. Littleton says: A man may not grant or give his tenements to his wife during coverture, for his wife and he be but one person in the law. $168. And while the common-law writers are not agreed as to the reason for the rule, both courts and text writers agree that such a conveyance had no effect. Furrow v. Athey, 21 Neb. 671, 59 Am. Rep. 867, 33 N. W. 208; Smith v. Dean, as held that certain agreements with respect to the property had not been proved. Reversed on defendants' appeal. The facts are stated in the opinion. Messrs. Smith & Trezevant, for complainant: Land settled on the wife as separate estate will not carry rents, unless there 15 Neb. 433, 19 N. W. 642; White v. Wager, 25 N. Y. 328; Kinney v. Dexter, 81 Wis. 80, 51 N. W. 82; Martin v. Martin, 1 Me. 397; Allen v. Hooper, 50 Me. 371; Jewell v. Porter, 31 N. H. 38; Ransom v. Ransom, 30 Mich. 328; Voorhees v. Presbyterian Church, 17 Barb. 103; Chouteau v. Magenis, 28 Mo. 187; Gluck v. Cox, 75 Ala. 310. A conveyance by husband to wife has no effect on the legal title. Gaston v. Weir, 84 Ala. 193, 4 So. 258. A deed poll without consideration, by which a man grants all his estate to his wife, is void at law, and creates no trust which a court of equity will enforce. Price v. Price, 14 Beav. 598. The master of the rolls says, If I were to decide that this deed would be good as between strangers, I should really be deciding that, if a man execute a deed simply saying, "I hereby give all my estate at A to another," and nothing further takes place either to give possession, or to transfer the legal estate, this court would complete the delivery of the estate. This would, in my opinion, be contrary to the authority. With respect to the transfer of the estate he says nothing took place but the execution of the deed, the communication of it to the wife, and the delivery of it to the attesting witnesses. He further says that he is unable to discover on what principle the position that a voluntary gift by a man to his wife can properly rest. That a deed from husband directly to his wife is a nullity at common law is a doctrine as old as the law itself. It results inevitably from the principle that the husband and wife are one, and of course are incapable of contracting with each other. Coates v. Gerlach, 44 Pa. 43. cr In Beard v. Beard, 3 Atk. 72, the court, in speaking of a deed poll, says it cannot take effect as a grant or deed of gift to the wife because the law will not permit a man to make a grant conveyance to the wife in his lifetime; reither will equity suffer the wife to have the whole of the husband's estate while he is living, for it is not in the nature of a provision, which is all the wife is entitled to. In Moyse v. Gyles, 2 Vern. 385, an attempted grant by a man to his wife of his moiety in a church lease was held to be absolutely void at law. In Firebrass er dem. Symes v. Pennant, 2 Wills. 254, the question arose whether or not is something in the settlement showing | Kent, Com. * that they are included. Ordway v. Bright, 7 Heisk. 681. Intention to exclude the marital rights must be "expressed in the clearest and most unequivocal terms." Wood v. Polk, 12 Heisk. 222; Houston v. Embry, 1 Sneed, 489; Murdock v. Memphis & O. R. Co. 7 Baxt. 558. The rule in gifts of personalty by a husband to his wife does not apply to real estate. Murdock v. Memphis & O. R. Co. 7 Baxt. 572; Vick v. Gower, 92 Tenn. 391, 21 S. W. 677. The husband's right, as husband, in his wife's real estate, is an estate for the lives of the two, which may continue during the husband's life. Guion v. Anderson, 8 Humph. 298; 2 a man could grant land to his wife by copy of court roll, and it is stated that, the case being quite new, no authority could be cited to show whether the grant was good or bad, and the court said this was a provision by a man for his wife which should be gained, if possible, to get over the maxim at law, that a husband and wife are one person, and therefore cannot grant lands to one another. This was an original, voluntary grant from a husband to the wife, who cannot by law take immediately from him any more than a monk who is dead in law, and considered as no person; so here is no person to take, for the husband and wife are only one person. We might as well repeal the Littleton as determine this husband immediately to his first section of grant from the wife to be good. Prior to New York Acts 1887, a deed of lands from a man to his wife was void unless founded upon a valuable or meritorious consideration, such as would enable a court of equity to sustain it. Dean v. Metropolitan Elev. R. Co. 119 N. Y. 540, 23 N. E. 1054. The court says in cases where equity interferes to sustain a deed between husband and wife an equitable consideration must be shown either upon the face of the conveyance itself or by extraneous proof. In Parker v. Stuckert, 2 Miles (Pa.) 278, it is said that a direct transfer from husband to wife, purporting to be founded on a valuable consideration, cannot be effected at all. A transfer of this description implies a contract to which a feme covert can in no instance be a party. All conveyances made by a man to his wife directly are at common law invalid for the reason that husband and wife are regarded as but one person, and the legal existence of the wife is merged into that of the husband. And the statutes creating and defining the separate estates of married women are not in abrogation of this doctrine of the common law; they are not intended to sever the unity of husband and wife so far as to confer upon them capacity to contract with, or to convey directly to, each other. But a court of equity will, when the contract is fair and just, give it full effect and validity. Seals v. Robinson, 75 Ala. 363. In Washburn v. Gardner, 76 Ala. 599, the 130 et seq.; Coleman v. Satterfield, 2 Head, 261; Bottoms v. Corley, 5 Heisk. 4. And during their joint lives the law gives him the right to the crops, profits, and products of her land. Lucas v. Rickerich, 1 Lea, 728; Ables v. Ables, 86 Tenn. 333, 9 S. W. 692; Jones v. Ducktown Sulphur, Copper & I. Co. 109 Tenn. 375, 71 S. W. 823. A wife who has abandoned her husband cannot sell the interest in her estate which he has acquired, either during their joint lives or during his life, if he is a tenant by curtesy. The common law cannot be changed indirectly, or by implication, by a statute. To change it the language of the statute must be clear and direct. Eaton v. Dickinson, 3 Sneed, 400; 1 Kent, court says, with reference to the power of a married woman over land which her husband has conveyed directly to her, that, if the question was one of first impression before the court, much might be said against the theory that she had a right to treat it as though she was a feme sole. The court says the conveyance is inoperative at law. And does it not follow that in any relief which the law court can administer the property is that of the husband, unaffected by his abortive attempt to devest the title out of himself? And has the wife any interest in her right to the property other than the equitable right to invoke the powers of the chancery court to perfect that which the husband, by force of the relation which he sustains to the wife, was incompetent to do? And is this equitable right of the wife the equivalent of an estate secured to her sole and separate use? At common law husband and wife could not separate their interests in common property by deeds of partition. Frissell v. Bozier, 19 Mo. 448. A husband cannot convey land directly to his wife without the intervention of trustees. Fletcher v. Mansur, 5 Ind. 267. In Burdeno v. Amperse, 14 Mich. 91, 90 Am. Dec. 225, the court held that the basis of the common-law disability of married women rested on the peculiar disqualification and burdens of the wife, and not upon anything growing out of the marital relation. It said that the wife, by her coverture, ceased to have control of her actions or her property, which became subject to the control of her husband, who alone was entitled, during the marriage, to enjoy the possession of her lands, and who became owner of her goods, and might sue for her demands. The husband alone remained sui juris, as fully as before marriage. It followed from this legal merger by coverture into a single personality, that the husband could make no grant to the wife, and the wife could make none to the husband. And furthermore, a grant to her by her husband, of a freehold, would be, in effect, a grant to take effect in futuro (the husband retaining possession for life), and such a grant was unlawful because a freehold could only pass by livery of seisin, which must operate either immediately or not |