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lied upon by respondent, which denies the county to review a judgment in favor of

RROR to the Circuit Court for Ingham right of the public to look into one's private place of business or residence, mani- plaintiff in an action brought to recover festly has no application. We think it damages for false imprisonment. Affirmed. equally clear that the ordinance does not The facts are stated in the opinion. compel an automobile owner or operator to Messrs. Black & Reasoner, with Mr. testify against himself, or deprive him of 0. J. Hood, for plaintiffs in error: apy property rights. It is merely a justifi- The mayor was authorized to abate this able exercise of the police power in the in- public nuisance. terest of the safety of the traveling public. Hart v. Albany, 9 Wend. 571, 24 Am. Dec. We think it unnecessary to discuss any 165; Fields v. Stokley, 99 Pa. 306, 44 Am. other objection.

Rep. 109; Gunter v. Geary, 1 Cal. 462; HarThe conviction is affirmed.

vey 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 Wheeler MUMFORD

Gray, 89; Detroit v. Ft. Wayne & E. R. Co.

90 Mich. 646, 51 N. W. 688. Adolph M. STARMONT et al., Piffs. in Err. The defendants were authorized to abate

this nuisance by the express resolution of the (..... Mich...... .)

common council. The common council had 1. The arrest of a motorman to abate authority to pass the resolution under the a nuisance caused by the running of general police power of the state. Under

when the trolley wire is in such poor the police power, business injurious or hazcondition that it is liable to come down to the injury of travelers upon the street is ardous may be prohibited. not justified when the result can be obtained People v. Hawley, 3 Mich. 330; People v. by cutting the feed wires or removing the Gallagher, 4 Mich. 244. controllers from the cars.

It is as full and complete as any other 2. The mayor and chief of police of a

governmental power. city are liable in damages in case they arrest motormen of street cars to

Kidd v. Pearson, 128 U. S. 1, 32 L. ed. abate a nuisance caused by the operation of 346, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. cars when the trolley wire is in such poor 6; Richmond, F. & P. R. Co. v. Richmond, 96 condition as to be liable to fall, when the U. S. 521, 24 L. ed. 734; Stone v. Missisobject can be effected by merely cutting the sippi, 101 U. S. 814, 25 L. ed. 1079. wires or removing the controllers from the

The judicial power will not interfere with 3. Ujion trial of an action for false im- the legitimate discretion of any other de

prisonment plaintiff may testify that he partment of government. felt humiliated by the arrest.

Detroit v. Hosmer, 79 Mich. 384, 44 N. W. 4. It is not error to exclude evidence, 622; Dixon v. Detroit, 86 Mich. 516, 49 N.

in an action by a motorman for false impris. W. 628; Rae v. Flint, 51 Mich. 526, 16 N. onment for attempting to run cars against

W.887. the orders of the municipal authorities, to the effect that plaintiff was subsequently

Individual interests must yield to the pubcomplimented by his employer for his effortlic welfare. to do so.

Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 6. The exclusion of evidence as

109; Welch v. Stowell, 2 Dougl. (Mich.) custom to search prisoners is not error in an action for wrongful arrest, where 332; Meeker v. Van Rensselaer, 15 Wend. plaintiff was not searched.

397 ; Shafer v. Mumma, 17 Md. 331, 79 Am. 6. An instruction in an action for false Dec. 656; Manhattan Mfg. & Fertilizing Co.

imprisonment permitting the damages to v. Van Keuren, 23 N. J. Eq. 255; Coe v. be fixed by what the average man would suf Schultz, 47 Barb. 64. fer under the circumstances is not reversible

Public officials are not liable for their acts error, where there is nothing to show that plaintiff suffered less than would the aver- done in good faith. age man, although the measure of damages

Gardner v. Couch (Mich.) 11 Det. L. N. should actually have been what plaintiff 340, 100 N. W. 673; Brooks v. Mangan, 86 suffered.

Mich. 576, 24 Am. St. Rep. 137, 49 N. W. (February 28, 1905.)

633; Curnow v. Kessler, 110 Mich. 10, 07 N. NOTH. —As to liability of officer for making W. 982; Tillman v. Beard, 121 Mich. 475, arrest, see also, in this series, Leger v. Warren, 46 L. R. A. 215, 80 N. W. 248; James v. 51 L. R. A. 193, and note, and McCullough v. Sweet, 125 Mich. 132, 84 N. W. 61. Greenfield, 62 L. R. A. 906.

Defendants had the right summarily to do As to liability of municipal corporation for what they did. wrongful arrest generally, see Bartlett v. Columbus, 44 J. R. A. 795, and note, and McGraw

Houghton v. Butler, 4 T. R. 364; Wistar v. Marion, 47 L. R. A. 593, and note.

V. Addicks, 9 Phila. 145; American Print

cars.

to a

error.

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 have to be arraigned for trial, and asked Rensselaer, 15 Wend. 397; 2 Wood, Nui- them to decide. Plaintiff said that he would sances, p. 948; 16 Am. & Eng. Enc. Law, p. run a car every fifteen minutes if given the 991.

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:

find a verdict for the plaintiff, and assess his The defendants were respectively mayor damages, which was done. Counsel have and chief of police of the city of Lansing. discussed several assignments of error, The plaintiff recovered a verdict and judg. among them the following: (1) That the ment for $150 against them, and they have court should have directed a verdict for the brought the case to this court by writ of defendants; (2) that, if not, the cause

should have been left to the jury upon the The action was for false imprisonment, question of plaintiff's right to recover. based upon an arrest and detention of the The testimony conclusively shows that the plaintiff by the police, under directions of defendants took the cranks or controllers the defendants. The record shows that the used in starting plaintiff's car, and that plaintiff was a motorman upon a street car without them he could not have afterwards operated upon the streets of Lansing. There started the car. Notwithstanding this, they was proof tending to show, and the court took plaintiff into custody and detained him charged the jury, that the overhead system at the police station for several hours, in a of the street railway was so out of repair vain attempt to secure a promise that he as to be dangerous to persons and horses would not run the car if discharged. Then using the street, owing to the frequent fall. he was discharged. The car was stopped, ing of the wires, and that it was a public and could not be run so long as the police nuisance. The common council had, by res- retained custody of it, and there was no olution, so declared it, and directed that it justification, so far as the facts disclosed by be abated. There was evidence to the effect this record go, for the arrest and detention. that the running of trolley cars increased The taking of the plaintiff before a magisthe danger by causing the wires to break trate was a further wrong, for there was and fall. The mayor thereupon gave notice no ground for the claim that he had been to the railway company that it must cease guilty of the offense of resisting an officer. running cars while the wires remained in The only thing that he is shown to have done this dangerous condition.

The cars

were after the controllers were taken from him stopped, and did not run again that day. prior to his arrest was to reverse the trolley Some of the feed wires were cut. On the of the car. That put the car in readiness evening of that day the plaintiff learned of to be run, but nothing more, and plaintiff the difficulty between the city and the com- made no effort to start the car. Indeed, he pany, but having been ordered to report for could not have started it, for the policemen duty on July 2d, the next day, he did so, had the necessary appliances. The only exand ran his car south on Washington avenue. cuse for the detention of the plaintiff was On lis return trip he met two cars at the that he would not promise not to run the car intersection of the Michigan avenue branch if liberated, and that it was more convenient with the Washington avenue line, being the to arrest and detain all of the motormen principal business corner of the city. He than to put a man in charge of each car, it stopped his car and started to take his con- appearing that seven or eight motormen troller cranks to the other end of the car, were thus treated. The defendants seek to when defendant Starmont took them. The justify their action upon the ground that the plaintiff took hold of the rope to reverse the condition of the overhead construction of the trolley, when defendant Starmont took hold street railway line was a public nuisance, of him, and handed him over to a policeman, in that it was a menace to persons using the giving orders to hold him until Starmont highway, and that it was the defendants' should direct his discharge. He was taken duty, both by virtue of their office, and by to the police station, and, with other motor- reason of the action of the common council men who had been arrested, had an inter- which had declared it a nuisance, to abate view with the city attorney, who told them the danger by preventing the operation of that they had resisted an officer and broken cars until the wire should be replaced by city ordinances, that unless they should 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 pris dition 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 nuisance; plaintiff resisted an officer. but these defendants cannot complain of such In the course of his instructions, the court instruction, for the reason that it is what said to the jury that they should give the they claimed, and was distinctly favorable to plaintiff actual damages, and that they were them. Apparently the judge chose to elim- to say “what damage, if any, the average inate that question, in view of his intention man would suffer, and to award plaintiff, to direct a verdict for plaintiff. The undis- if anything, such an amount as would computed facts in the case are that the defend- pensate him for his actual damages susants arrested and detained the plaintiff, as tained, and no more.” In one instance he a means of preventing the running of cars, varied this by saying: “The sense of shame or, as they state, abating a nuisance. If the and mortification, of wrong and of outrage, circumstances shown were such as to justify for which the plaintiff may recover, is not the abatement of a nuisance, it could have limited to the actual time he was under rebeen done by removing the dangerous wires, straint, but includes all such sense of shame, or by cutting the same off from the power mortification, wrong, and outrage as it can house from whence the current was fur- be said the average man under like circumnished. The stopping of the cars was not stances might have expected to experience essential to this. If the danger existed only for all time, arising from such arrest and deby the reason of the running of the cars, tention as has been shown. No witness has cutting the wire would have been an effec- placed a money standard on injured feelings, tive method of stopping the cars, or they humiliation, sense of outrage, and mental might have been stopped by taking posses- suffering arising from an unlawful arrest sion of or disabling them without cutting the and imprisonment, and no witness can do feed wire. Either of these methods would so. To do that is solely your province. The have been preferable to the wholesale arrest law has no other remedy for an action for of the motormen. The evidence shows that wrong than to compensate, so far as it can the plaintiff's car was disabled through the by way of money, for the injury done by one seizure of the controllers. Counsel cite no man to another. The facts and circumstancase recognizing the method taken of abat- ces surrounding the doing of the unlawful ing a nuisance, or preventing injury to citi act are to be considered by you, and you are zens, where the person arrested is not to consider as best you can, from all the evi. chargeable with a public offense or threat-dence, what sense of shame, mental sufferened breach of the peace. The conduct of ing, humiliation, and sense of outrage the the defendants was so clearly in excess of average man under similar circumstances necessity that we find it unnecessary to dis- might reasonably be expected to sustain, and cuss at length the authority of municipal award the plaintiff the amount thereof as officers as to summary abatement of nui- his damages in this case." It is insisted sances. Under the admitted facts the court that the measure of damages should not could have done no less than to direct a ver- have been what the average man would sufdict for the plaintiff. This being so, it be- fer under the same circumstances, but what comes unnecessary to refer to the other ques. the plaintiff had suffered. Undoubtedly the tions pertaining to that subject, and it is latter is the rule, but in this case there is only necessary to inquire whether errors nothing to indicate that this plaintiff sufwere committed in relation to the amount of fered less than the average man, and no indamages suffered.

jury is discernable from the instructions. We think it was not error to allow the We fail to discover any unfairness in the plaintiff to state that he felt humiliated by charge. the arrest. It was not error to exclude evi- The judgment is affirmed. dence that subsequently he was compliment69 L. R. A.

TENNESSEE SUPREME COURT.

V.

J. H. BARNUM

CRO
ROSS-APPEALS from a decree of the

Chancery Court for Shelby County ren-
E. B. LE MASTER et al.

dered in a suit to enjoin the sale and de

livery of certain real estate; defendants ap(110 Tenn. 638.)

pealing 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

as held that certain agreements with reconsideration, though without words disclosing an intent to do so, vests in her a separate spect to the property had not been proved. estate which she may transfer without his Reversed on defendants' appeal. joinder or consent.

The facts are stated in the opinion. 2. Marriage is a valuable considera Messrs. Smith & Trezevant, for com

tion sufficient to support a conveyance from plainant: husband to wife.

Land settled on the wife as separate (June 16, 1903.)

estate will not carry rents, unless there Noth.Effect of conveyance by husband to 15 Neb. 433, 19 N. W. 642; White v. Wager, wife.

25 N. Y. 328; Kinney v. Dexter, 81 Wis. 80,

51 N. W. 82; Martin v. Martin, 1 Me. 397 ; AlI. At common law.

len v. Hooper, 50 Me. 371 ; Jewell v. Porter, 31 a. Transfers of real estate, 353.

N. H. 38; Ransom V. Ransom, 30 Mich. 328 ; b. Gifts of personalty, 355.

Voorhees v. Presbyterian Church, 17 Barb. 103 ; 11. In equity.

Chouteau V. Magenis, 28 Mo. 187; Gluck v. a. Conveyances upheld, 357.

Cox, 75 Ala. 310. b. Conditions upon which conveyances

A conveyance by husband to wife has no are upheld, 358.

effect on the legal title. Gaston v. Weir, 84 c. Necessity of trustee, 362.

Ala. 193, 4 So. 258. d. Effect of conveyance, 362.

A deed poll without consideration, by which III. Effect of statutes.

a man grants all his estate to his wife, is void a. In general, 363.

at law, and creates no trust which a court of b. Exception of conveyances from hus- equity will enforce. Price v. Price, 14 Beav. band, 364.

598. The master of the rolls says, If I were to c. Eremption from husband's debts, decide that this deed would be good as between 366.

strangers, I should really be deciding that, if d. Permitting revocation, 367.

a man execute a deed simply saying, "I hereby IV. Conveyance by third person at instance give all my estate at A to another," and nothof husband, 367.

ing further takes place either to give possesV. Consideration, 368.

sion, or to transfer the legal estate, this court VI. Does conveyance create separate estate,

would complete the delivery of the estate. This 370.

would, in my opinion, be contrary to the auVII. Remaining interest of husband.

thority. With respect to the transfer of the a. In general, 374.

estate he says nothing took place but the exeb. Curtesy, 375.

cution of the deed, the communication of it to VIII. Rights against husband's hcirs, 377.

the wife, and the delivery of it to the attesting IX. Homestead and community, 378.

witnesses. He further says that he is unable to X. Effect of divorce, 379.

discover on what principle the position that XI. Form and provisions of conveyance, 380.

a voluntary gift by a man to his wife can properly rest.

That a deed from husband directly to his I. At common lavo.

wife is a nullity at common law is a doctrine

as old as the law itself. It results inevitably a. Transfers of real estate.

from the principle that the husband and wife

are one, and of course are incapable of conThe changes to which well-established rules tracting with each other. Coates v. Gerlach, of law are subject have perhaps no better 44 Pa. 43. illustration than is afforded by a comparison In Beard v. Beard, 3 Atk. 72, the court, in of the ancient rule with respect to conveyances speaking of a deed poll, says it cannot take effect between husband and wife with the rule as it as a grant or deed of gift to the wife because obtains at the present time in most jurisdic- the law will not permit a man to make a grant tions whose law is derived from the common conveyance to the wife in his lifetime; law of England.

neither will equity suffer the wife to have the Littleton says: A man may not grant or give

whole of the husband's estate while he is his tenements to his wife during coverture, for living, for it is not in the nature of a provihis wife and he be but one person in the law. sion, which is all the wife is entitled to. $168.

In Moyse v. Gyles, 2 Vern, 385, an attempted And while the common-law writers are not grant by a man to his wife of his moiety in a agreed as to the reason for the rule, both courts church lease was held to be absolutely void at and text writers agree that such a conveyance

law. had no effect. Furrow v. Athey, 21 Neb. 671, In Firebrass es dem. Symes v. Pennant, 2 59 Am. Rep. 867, 33 N. W. 208 ; Smith v. Dean, Wills. 254, the question arose whether or not

cr

is something in the settlement showing Kent, Com. * * 130 et seq.; Coleman v. Sat. that they are included.

terfield, 2 Head, 261; Bottoms v. Corley, Orduay v. Bright, 7 Heisk. 681.

5 Heisk. 4. Intention to exclude the marital rights And during their joint lives the law gives must be “expressed in the clearest and most him the right to the crops, profits, and unequivocal terms."

products of her land. Wood v. Polk, 12 Heisk. 222; Houston Lucas v. Rickerich, 1 Lea, 728; Ables v. v. Embry, 1 Sneed, 489; Murdock v. Mem- Ables, 86 Tenn. 333, 9 S. W. 692; Jones v. phis & 0. R. Co. 7 Baxt. 558.

Ducktown Sulphur, Copper & I. Co. 109 The rule in gifts of personalty by a hus- Tenn. 375, 71 S. W. 823. band to his wife does not apply to real A wife who has abandoned her husband estate.

cannot sell the interest in her estate which Murdocle v. Memphis d 0. R. Co. 7 Baxt. he has acquired, either during their joint 572; Vick v. Gower, 92 Tenn. 391, 21 lives or during his life, if he is a tenant S. W. 677.

by curtesy. The husband's right, as husband, in his The common law cannot be changed inwife's real estate, is an estate for the lives directly, or by implication, by a statute. To of the two, which may continue during the change it the language of the statute must husband's life.

be clear and direct. Guion v. Anderson, 8 Humph. 298; 2 Eaton v. Dickinson, 3 Sneed, 400; 1 Kent, a man could grant land to his wife by copy of court says, with reference to the power of a court roll, and it is stated that, the case being married woman over land which her husband quite new, no authority could be cited to show bas conveyed directly to her, that, if the queswhether the grant was good or bad, and the tion was one of first impression before the court said this was a provision by a man court, much might be said against the theory for his wife which should be gained, if possible, that she had a right to treat it as though she to get over the maxim at law, that a husband was a feme sole. The court says the convey. and wife are one person, and therefore cannot ance is inoperative at law. And does it not grant lands to one another. This was an origin- follow that in any relief which the law court al, voluntary grant from a husband to the wife, can administer the property is that of the huswho cannot by law take immediately from him band, unaffected by his abortive attempt to any more than a monk who is dead in law, devest the title out of himself? And has the and considered as no person; so here is no wife any interest in her right to the property person to take, for the husband and wife are other than the equitable right to invoke the only one person. We might as well repeal the powers of the chancery court to perfect that first section of Littleton as determine this which the husband, by force of the relation grant from the husband immediately to his which he sustains to the wife, was incompetent wife to be good.

to do? And is this equitable right of the wife Prior to New York Acts 1887, a deed of the equivalent of an estate secured to her sole lands from a man to his wife was void un- and separate use? less founded upon a valuable or meritorious con- At common law husband and wife could not sideration, such as would enable a court of separate their interests in common property equity to sustain it. Dean V. Metropolitan by deeds of partition. Frissell v. Bozier, 19 Mo. Elev. R. Co. 119 N. Y. 540, 23 N. E. 1054. 448. The court says in cases where equity interferes A husband cannot convey land directly to his to sustain a deed between husband and wife an wife without the intervention of trustees. equitable consideration must be shown either Fletcher v. Mansur, 5 Ind. 267. upon the face of the conveyance itself or In Burdeno v. Amperse, 14 Mich. 91, 90 Am. by extraneous proof.

Dec. 225, the court held that the basis of the In Parker v. Stuckert, 2 Miles (Pa.) 278, it common-law disability of married women rest. is said that a direct transfer from husband to ed on the peculiar disqualification and burdens wife, purporting to be founded on a valuable of the wife, and not upon anything growing consideration, cannot be effected at all. A

out of the marital relation. It said that transfer of this description implies a contract the wife, by her coverture, ceased to have to which a feme covert can in no instance be

control er actions or her property, which a party.

became subject to the control of her husband, All conveyances made by a man to his wife who alone was entitled, during the marriage, to directly are at common law invalid for the enjoy the possession of her lands, and who bereason that husband and wife are regarded as came owner of her goods, and might sue for but one person, and the legal existence of the her demands. The husband alone remained sui wife is merged into that of the husband. And juris, as fully as before marriage. It followed the statutes creating and defining the separate from this legal merger by coverture into a estates of married women are not in abrogation single personality, that the husband could make of this doctrine of the common law; they are

no grant to the wife, and the wife could make not intended to sever the unity of husband and none to the husband. And furthermore, a wife so far as to confer upon them capacity grant to her by her husband, of a freebold, to contract with, or to convey directly to, each

would be, in effect, a grant to take effect in other. But a court of equity will, when the con

futuro (the husband retaining possession for tract is fair and just, give it full effect and life), and such a grant was unlawful because validity. Seals v. Robinson, 75 Ala. 363.

a freehold could only pass by livery of seisin, In Washburn v. Gardner, 76 Ala. 599, the which must operate either immediately or not

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