A bicycle is of but little use in wet weather | It is because ordinary roads are not considor on frozen ground. Its great value con- ered suitable for bicycles that cities and sists in the pneumatic tire, but this is easily towns are given the power by Stat. 1898, punctured, and no one who uses a wheel chap. 351, to lay out, construct, and mainthinks of taking a ride of any distance with- tain paths for bicycles. And Stat. 1899, out having his kit of tools with him. A chap. 474, makes it a misdemeanor to treshard rut, a sharp stone, a bit of coal or glass, pass upon a cycle path by driving thereon or a tack in the road may cause the tire to be with a horse or other animal, except to cross punctured, and this may cause the rider to the same. We are therefore of opinion that fall and sustain an injury. It would im- a bicycle is not a "carriage," within the pose an intolerable burden upon towns to meaning of that term in Pub. Stat. chap. hold them bound to keep their roads in such 52, § 1. This view of the case renders it una state of repair and smoothness that a bi- necessary to consider the other exceptions. cycle could go over them with assured safety. Exceptions sustained. MICHIGAN SUPREME COURT. Kate HEWITT v. Village of REED CITY, Appt. (........Mich.........) Submission of authorities to an arbitrator after close of the testimony, where it is expressly agreed that neither party is to be represented by counsel, is a violation of the spirit of the submission, which will avoid the award. A (May 2, 1900.) PPEAL by defendant from a decree of the Circuit Court for Osceola County in favor of complainant in a proceeding to set aside an award. Affirmed. The facts are stated in the opinion. Every reasonable presumption will be indulged in by the courts for the purpose of upholding an award, to give it effect and accomplish the ends of justice. Clement v. Comstock, 2 Mich. 359; Bush v. Davis, 34 Mich. 190; Wood v. Treleven, 74 Wis. 577, 43 N. W. 488; Morse, Arbitration & Award, 411. One seeking to set aside an award on the ground of mistake must show that the award would have been different had the mistake not occurred. Gorham v. Millard, 50 Iowa, 554; DeCastro v. Brett, 56 How. Pr. 484; Halstead v. Seaman, 52 How. Pr. 415; 6 Wait, Act. & Def, 554. Montgomery, Ch. J., delivered the opinion of the court: This is a bill filed to set aside an award. Complainant was injured by reason of a defective sidewalk of the village. A claim was presented to the common council, and after a period of negotiation an agreement was reached to submit the matter in controversy to Hon. James B. McMahon, as arbitrator. A hearing was had before the arbitrator, testimony produced pro and con, and an award made in favor of the village. The bill in this case contains charges of overreaching, made against the village attorney and the president of the village, and also alleges that complainant was not permitted to produce her proofs before the arbitrator. We are not only convinced that these charges are not sustained by a preponderance of the evidence, but we deem it only just to the parties concerned to say that the charges ought not to have been made. There is nothing to indicate any misconduct or overreaching on the part of Mr. Withey, the village attorney, or Mr. Slosson, the village president. Complainant had employed counsel to present her claim to the village authorities, was aided by the advice of her husband, and, we Sweet v. Morrison, 116 N. Y. 19, 22 N. E. have no doubt, understood the matter to be 276; Fudickar v. Guardian Mut. L. Ins. Co. submitted; nor have we any doubt that she 62 N. Y. 392; Halstead v. Seaman, 52 How. was permitted to adduce all testimony which Pr. 415; Underhill v. Van Cortlandt, 2 Johns. she deemed necessary. The only question Ch. 339; Winship v. Jewett, 1 Barb. Ch. which has given us any doubt arises out of 173; Conger v. James, 2 Swan, 213; Roloson the mistaken conduct of the village presiv. Carson, 8 Md. 208; Hartshorne v. Cut-dent in furnishing the arbitrator, after the trell, 2 N. J. Eq. 297; Ryan v. Blount, 18 N. C. (1 Dev. Eq.) 383; Valle v. North Missouri R. Co. 37 Mo. 450; Anderson v. Darcey, 18 Ves. Jr. 447; Story, Eq. Jur. 88 1453, 1457; 2 Pom. Eq. Jur. 349. No mistake appears upon the face of the award or submission in this case, that is material to the findings and award made; therefore in no event should that award be set aside. NOTE. On the misconduct of arbitrators, see also Hartford F. Ins. Co. v. Bonner Mercantile Co. (C. C. D. Mont.) 11 L. R. A. 623, and note. testimony was closed, a memorandum of cases or authorities. Just what these cases related to does not clearly appear, as the memorandum is not produced, and the recollections of Judge McMahon and Mr. Slosson differ. The rule is very strict in excluding any communication to an arbitrator, made ex parte after the case is submitted; and which provides that the statement by appellant shall be deemed accurate, unless the opposite party points out wherein it is insufhcient or inaccurate. when such communication, which may affect the result, is made, it is not usual to enter into an inquiry as to whether the arbitrator was in fact influenced by it or not. Walker v. Frobisher, 6 Ves. Jr. 70; Strong v. Strong, 2. Information given to detectives in 9 Cush. 560; Catlett v. Dougherty, 114 Ill. 568. 2 N. E. 669; Jenkins v. Liston, 13 Gratt. 535; 2 Am. & Eng. Enc. Law, 2d ed. p. 646. It is contended that this rule should not be applied to the present case, as all that occurred was a mere citation of authorities; but it is to be kept in mind that the arbitrator is judge of the law as well as of the facts, and in this case the parties expressly agreed that neither was to be represented by counsel, thereby stipulating to exclude all legal arguments or briefs. It cannot be denied that the purpose of any citation must have been to influence the mind of the arbitrator on a question of law. We hold, with some reluctance, that this is a violation of the spirit of the terms of the submission. Judge McMahon himself testified that the handing of this memorandum to him was, to use his language, the most unsatisfactory thing connected with the transaction. If we felt at liberty to determine the case upon the question of whether the result was probably influenced by this representation, we would have little difficulty, as the high character and unquestioned ability of the arbitrator would furnish ample assurance that he was not unduly influenced in the matter; but, as this is the first time that the question has been presented to the court in this exact way, we are concerned in laying down a rule easy to follow, and which will afford protection in all cases, and we think the safer rule is for the court to enter into no examination as to whether the arbitrator is in any way influenced by ex parte communications. In applying that rule to this case, and in view of the stipulation that neither party should be represented by counsel, we are constrained to hold that the arbitration should be set aside. This was the conclusion reached by the learned circuit judge, and his decree will be affirmed, with costs. 1. A statement of facts in appellant's brief, which is conceded to be correct, will be so regarded by the court, and an independent statement in appellee's brief, of facts which he considers necessary to a full understanding of the questions raised, will not be considered by the court, under a rule NOTE-As to privileged communications in legal proceedings, see (for words in pleading) Randall v. Hamilton (La.) 22 L. R. A. 649, and note; Sherwood v. Powell (Minn.) 29 L. R. A. 133: (as to defamatory testimony) Cooper v. Phipps (Or.) 22 L. R. A. 836, and note; and Blakeslee v. Carroll (Conn.) 25 L. R. A. 106. regard to larceny, and a statement of the suspicion that a certain person is the thief, with the reason for such suspicion, are privileged. 3. Privileged communications which cannot themselves form the basis for an action of slander are not admissible for the purpose of showing malice in other communications. 4. The maxim Volenti non fit injuria applies to alleged slanderous statements made in the presence of an officer, where the subject of the statements solicited them and sent for the officer for the express purpose of having the statements repeated in his presence. 5. One who charges another with crime is not liable for false imprisonment on account of an arrest made by an officer without any request from him, and when the person arrested sent for the offcer for the express purpose of having the accusation repeated in his presence. (May 18, 1900.) IRROR to the Circuit Court for Wayne County to review a judgment in favor of plaintiff in an action brought to recover damages for alleged slander and false imprisonment. Reversed. Statement by Long, J.: This is a suit by one Katherina Shinglemeyer against Oliver A. Wright by capias for an alleged slander claimed to have been uttered by defendant to one Henry, a policeman, upon the 16th of July, 1898, and for a false imprisonment which the plaintiff' claims to have suffered upon the same day at the hands of the said Henry, acting under the instructions of the said defendant. The plaintiff's testimony was to the following effect: That previous to April, 1898, she had had trouble with George Wright, a brother of the defendant, living at Columbus; that in April, 1898, she caused the said George Wright to be arrested upon a charge of bastardy, upon which charge he was put under bond, and had also sued him for breach of promise of marriage. It is the claim of the plaintiff that some time in the fall of 1897 or the spring of 1898 George Wright came to the place where she was working, and borrowed $22 from her, and that Oliver Wright, the defendant, was with him, and stood outside of the door. She stated upon cross-examination that she had only seen Oliver Wright once before, and that was in Delaware, Ohio, and that she did not know Oliver Wright well enough to say whether it was Oliver Wright who called with George Wright that night or not. Upon the 3d day of July, 1898, the plaintiff came to Detroit, where Oliver Wright resided, and upon the witness stand claimed that her purpose was to get the $22 which she claimed George Wright had borrowed for defendant's use from her at the time heretofore referred to. She also stated that the moving cause for her coming to Detroit was to see George Wright. Plaintiff claims she went to a boarding house on Henry street, and remained there about three days, having arrived on Sunday; and then went to work for Mrs. Goldberg, doing general housework. The following Sunday, the 10th of July, she went to the residence of defendant, and asked for George Wright. She testified that she was informed by defendant that George Wright was not there; that she stated who she was, and that she was asked upstairs; that she asked for the money which she claimed George Wright got from her, and that Oliver Wright denied that he knew anything about it; that Oliver Wright at that time advised her to let the court settle her difficulties with his brother, but she stated that she could not wait longer, and had to have something right away. She testified further that at the time Oliver Wright told her to come up to his office in the Chamber of Commerce, and that he would talk the matter over with her; that at that time he made no threats whatsoever, and told her that, if his brother was guilty of the offense as charged by her, she could establish his guilt without question; that she had no reason to believe that Oliver Wright had any malice towards her at that time, except because Oliver seemed to think that she had not let George have any money. Plaintiff claims that upon the 16th day of July-the Saturday following the interview with Oliver Wright at his residence-she went to his office in the Chamber of Commerce Building at about 3 o'clock in the afternoon. George Wright was in the general office, which was situated between the private office of Oliver A. Wright and the private office of R. R. Baines, both of whom used the general office in common. George Wright went from the general office into the one marked "Mr. Baines," and immediately thereafter Oliver Wright came into the office from the room into which George had gone. Plaintiff claims that Oliver Wright said, “Did you bring my wheel back?" and that she said, "I ain't got your old wheel;" and he said, "Yes, you have stolen my wheel," and said that he could prove it. At the time of this conversation there was no one present besides plaintiff and the defendant. She also claims that he stated that he would have a warrant out for her if she did not leave his office. Thereupon she went to the telephone, and called up the central police station, and asked them to send over an officer. She stated that, if she had left the office before she had telephoned, there was no danger of her having been arrested, or a warrant, or anything of that sort, but that she was not going to have him stand there saying that she was a thief, and that she had made up her mind that she was going to make him prove it. After she called up the central police station, she waited for the police to come over for a long while, and made no effort to leave the of fice. No policeman appearing, she called up the police station a second time, and told them again to send over a policeman. She claimed that Mr. Wright was present when she telephoned the second time, and that she could have left the office at that time if she had desired. The officer did not come the second time she called, so she waited half an hour, and called up the police station a third time, and told them to send over an officer. The plaintiff claimed that at some time after she had called up the police station the first time she tried to get out of the office, but could not do so. She at first said it was after she had telephoned the second time. Again, she testified that she called up the second time because she wanted the police to hurry up, and she did not know whether she was locked up at that time or not; that at one time, while she was in the office, the police department called up Mr. Wright's office, and Mr. Wright answered the telephone: that while he was at the telephone she could have left the office if she had wanted to, and that she stayed because she wanted to. Finally, she stated that she did not try to leave the office until she had called up the last time. Q. As a matter of fact, you did not try to get out before the second time [you telephoned]? A. I don't believe I did. Q. You are certain of that? Q. As a matter of fact, you did not call up the police department the second time because you could not get out? 4. No, I think that the reason I called up the second time, or the third time, was because I wanted them to hurry. After she had called up the police station the third time, and no officer had come, she left the office without any interference upon the part of the defendant, went down the elevator, and near the door met the policeman Henry. She testified that there was nothing to prevent her going to the Goldbergs', or any other place, at that time. Instead of that, she brought the policeman back to Mr. Wright's office, and herself stated to the policeman that Mr. Wright accused her of stealing his wheel, and that she wanted to see whether he could do so. The policeman went into Mr. Wright's private office, and said something which the plaintiff did not hear; and witness testified that there was nothing to prevent her leaving the office at that time if she had wanted to. She also testified that Mr. Wright stated that she did steal the wheel, and that he (Mr. Wright) wanted her to be taken over and locked up. She testified that the policeman told her that she had to go along with him. There is no evidence in the case that Mr. Wright was present when any such thing was said to the plaintiff, if it was said. The plaintiff testified that she went over to the police station with the officer, and was asked a few questions there, and then was taken down by the two detectives to the Brush Street Depot, to be identified; that the baggageman at the Lake Shore station said she was not the woman who had checked a man's wheel to To coming around here, and raising a disturbance, and trying to make trouble for my brother. From what I can learn she is a loose woman, and not the kind of a woman the police want in Detroit." Witness testified that Miss Shinglemeyer was the first person who said that she had been accused of stealing the wheel. Witness testified that the plaintiff said first, "He accuses me of stealing his bicycle, and says I am a thief, and I am going to make him prove it." Witness also testified that the defendant said De her, and that he (defendant) had learned that a woman had checked a man's wheel from Detroit to Toledo by the Lake Shore baggageman. Witness, although pressed by leading questions, did not testify that the defendant asked him to arrest the plaintiff. He testified further that he walked with the plaintiff over to the central station, and turned her over to Detectives High and Larkins. Detectives High and Larkins were called as witnesses for the plaintiff. They testified, under objection and exception, that they had called over to the defendant's office on the morning of the 11th of July; that the defendant told them that he had had his wheel stolen, and suspected some woman with whom his brother had trouble in Columbus; that he did not know her name, but that he could find it out, and let them know. They testified further that they went over to his office again upon the 16th, in response to a telephone message, and that he told them that he knew who the party was who stole his wheel; that her name was Kittie Shingle ledo on the evening of the 10th, and that the detectives then put her on the car, and she went home. Upon the following day the plaintiff testifies that she went up to the defendant's residence, with a rubber hose, and that she was going to thrash him; that she did not start to thrash Oliver, but did start to thrash George; that she commenced to thrash him without saying a word, and George took the rubber hose away from her, without using any more force than was necessary. Plaintiff testified that she on that day (Sunday) told Oliver Wright that hetectives High and Larkins were looking for had accused her of stealing his wheel, and that she was going to make it mighty hot for him some time. She testified that Oliver Wright told her that if she would go to Columbus he would fix everything all right, and that they would come for her that night, and that they did so. She testified that they came up to see her that same evening, and that she agreed to go to Columbus the next morning. She went down to the station the next morning, but did not have the money to pay her fare; that neither the defendant nor his brother had the money to give her to buy a railroad ticket, and that she thereupon went back to the defendant's oflice, where he gave her $4 and stated that he would loan it to her, and she gave a receipt for it as a loan; that she left that afternoon for Columbus, and stayed there just one week. Plaintiff claimed that at one time defendant had called her "a crazy old thing," but when that was, or in whose presence it was uttered, she did not know. Plaintiff testified, when asked when she had first made up her mind to sue the defendant, that she told her attor-meyer, and that she lived on South Fourth ney the 2d of January, 1899, that she wanted to get it started before she went home; that she had thought of it all along, but that she was not ready. She was then asked the question when she had first made up her mind to begin the suit, and she answered, "I had it in my mind all the time." Subsequently she was asked whether she intended to bring this suit before the 1st of October, 1898, to which she replied, "I meant to sue him from the first time." After the occurrences which we have narrated fully, witness testified that she told several people that she was Oliver Wright's sister-in-law; that she had a child three years old; that she had a suit in Cleveland, where she was suing her husband for divorce; and that none of the statements were true. Thomas Henry, the officer who it was claimed by plaintiff was the person to whom the alleged slander had been uttered, and who was the person who made the alleged arrest complained of, testified: That on the 16th of July he was sent over to the Chamber of Commerce Building, and met the plaintiff in the lobby of that building. That she spoke to him first, and told him that Mr. Wright accused her of stealing his wheel, and had locked her in his office. That he persuaded her to go upstairs with him, but did not compel her to go. That when he entered the office he asked what the trouble was. That Mr. Wright said: "This girl is street, in Columbus, Ohio, with her brother; that he was positive she stole the wheel, as he had the description of a woman answering her description who checked the wheel from the Lake Shore to Toledo; that he had written a letter to the chief of police of Columbus; that the defendant had said that he did not know how the officers felt about a woman of that character, but that she was not the kind of a woman that he thought the police department wanted, and that she was a bad woman; that plaintiff was brought down to the station in the afternoon of the 16th of July, in the custody of the policeman Henry; that they took her in charge; took her down to the Lake Shore baggage room, and that the night baggageman, after seeing her, said she was not the party that defendant checked the wheel. The was called to the stand by the plaintiff, and tes- Detroit, Michigan, July 16, 1898. Dear Sir: A day or two ago I wrote you concerning my bicycle, which was taken from my resi dence last Sunday evening. I stated that I suspected a party whose home is in Columbus, Ohio, of having committed the theft. My suspicions are now confirmed. We have been able to trace the wheel to the Lake Shore Depot, where it was checked last Sunday night to Toledo. It left Detroit about 9:40. The woman whom I suspect is Kittie Shinglemeyer. She probably rechecked the wheel for Columbus. We have been able to trace it thus far from the unusual circumstances of a woman checking a gentleman's wheel. I cannot learn on what road she left Toledo, but you might be able to get some information which would be of use to you in finding the wheel at either the Union Depot or the Ohio Central Depot at Columbus. Miss Shinglemeyer has a brother living, I think, on South Fourth street, Columbus. If I am not mistaken, she makes her home with her brother. I shall probably be in Columbus Monday to look after the matter personally. If in the meantime you are able to recover the wheel, I shall be very glad to reward the one to whom such reward would be due. While to recover in such an action as this it may not be necessary for a plaintiff to do everything in her power to avoid the slander or imprisonment, she ought certainly not to be permitted to recover when she did her utmost to give publicity to the false accusation, and to get herself arrested. Messrs. Frank C. Cook and R. E. Van Syckle, for defendant in error: The privilege arising from a communication made to a public officer, or in answer to an invitation from the plaintiff, is simply a qualified privilege which may be overthrown by proof of actual malice. Odgers, Libel & Slander, p. 229; Newell, Defamation, Slander & Libel, 2d ed. p. 515; 13 Am. & Eng. Enc. Law, p. 422; Folkard's Starkie, Slander & Libel, § 291; Taylor v. Hawkins, L. R. 16 Q. B. Div. 308, 15 Jur. 746, 20 L. J. Q. B. N. S. 313; Richards v. Richards, 2 Moody & R. 557; Force ▼. Warren, 15 C. B. N. S. 808; Warr v. Jolly, 6 Car. & P. 497; Griffiths v. Lewis, 7 Q. B. 61, 9 Jur. 370, 14 L. J. Q. B. N. S. 799; Cristman v. Cristman, 36 Ill. App. 574; Preston v. Frey, 91 Cal. 107, 27 Pac. 533; Wright v. Woodgate, 2 Cromp. M. & R. 573; Billings v. Fairbanks, 139 Mass. 66, 29 N. E. 544; Garn v. Lockard, 108 Mich. 196, 65 N. W. 764; Wieman v. Mabee, 45 Mich. 484, 8 N. W. 71. In order to remove or destroy the privilege arising from an occasion qualifiedly privileged, the plaintiff may show actual nalice, or malice in fact, mala fidcs; that is that the occasion was made use of colorably. or as a pretext for wantonly injuring the plaintiff. Howard v. Dickie, 6 Det. L. N. 104, 79 N. 143, 73 N. W. 135; Bacon v. Michigan C. R. W. 191; Livingston v. Bradford, 115 Mich. Co. 66 Mich. 166, 33 N. W. 181, acts made or done by the defendant with Malice may be shown by any statements or reference to the plaintiff. Eng. Enc. Law, p. 431; Howard v. Dickie, 6 Odgers, Libel & Slander, 238; 13 Am. & Det. L. N. 104, 79 N. W. 191. Or the circumstances under which the publication took place. Garn v. Lockard, 108 Mich. 196, 65 N. W. 764; Bacon v. Michigan C. R. Co. 66 Mich. 166, 33 N. W. 181. others, but not counted on. Or repetitions of the same charge made to Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000; Irish-American Bank v. Bader, 59 Minn. 329, 61 N. W. 328; Heller v. Howard, 11 Ill. App. 554; Fonville v. McNease, 1325; Beneway v. Thorp, 77 Mich. 181, 43 N. Botsford v. Chase, 108 Mich. 432, 66 N. W. Dud. L. 303, 31 Am. Dec. 556; King v. War- W. 863: Ellis v. Whitehead, 95 Mich. 105, ing, 5 Esp. 14; Smith v. Wood, 3 Campb. 54 N. W. 752. 323; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Sutton v. Smith, 13 Mo. 120; Haynes v. Leland, 29 Me. 233; Folkard's Starkie, Slander & Libel, § 687, 4th Eng. ed. p. 686. A person who receives a letter containing what he considers a false statement about himself, and thereupon shows the letter to others, cannot recover, regardless of any question of express malice, for he is the one who has published the alleged libel. Long, J., delivered the opinion of the court: 1. The above statement of facts is taken from appellant's brief. It is a full compliance with rule 40, with references to the record to support the statements. Counsel for appellee concede the correctness of the statement, but they say: "As several items contained in the record do not appear in the Kansas City, M. & B. R. Co. v. Delancy, statement in appellant's brief, and are neces102 Tenn. 289, 45 L. R. A. 602, 52 S. W. 151;sary to a full understanding of the questions Wilcox v. Moon, 64 Vt. 450, 15 L. R. A. 760, 24 Atl. 244; Sylvis v. Miller, 96 Tenn. 94, 33 | ment of facts." Five pages of their brief S. W. 921. A privileged communication not counted upon cannot be used to show express malice in a suit brought on another privileged communication. 13 Am. & Eng. Ene. Law, p. 425. raised, we desire to submit this short state are then occupied with a statement. This is not a compliance with the rule, which reads as follows: "The brief of a party bringing a cause into this court shall contain a clear and concise statement of the facts of the case, distinct from argument, and of the er |