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that county. He has no power to serve process directed to a constable of another county, unless specially authorized so to do by law. It was not intended by the legislature that an or dinary justice's summons, directed to any constable of the county within which the justice has jurisdiction, could be taken by the plaintiff, and handed to a constable or sheriff of another county for service, without some showing upon the writ that the suit was intended to be brought under soction 7317. The act, if valid, is a special one, and applies only to special cases. The whole thing was a fraud from the begin- . ning. The labor and services spoken of were not a valid claim if performed, as it would be against public policy to allow marriage brokerage.
But it is not necessary to determine whether the first count was a good one, in an action for malicious prosecution. It Bets out fully a conspiracy between the defendants, June and Crowell, to defraud the plaintiff, and that he was defrauded out of the money paid upon this void judgment. It therefore clearly sets out an actionable wrong, – one that can be recovered for in an action upon the case, — and it is immaterial what it is called.
The second count is also good. If process is willfully made use of for a purpose not justified by the law, this is an abuse for which an action will lie: See Cooley on Torts, and cases cited, 189, 190. I can conceive of no case of any greater abuse of process than this. There was nothing to base it upon in the beginning, and it was procured, in every stage of the proceeding thereafter, by fraud and perjury, which ought to be punished by a term in state prison to both of the defendants. It was used for no lawful or legitimate purpose. If “entering up a judgment and suing out execution after the demand is satisfied " is an abuse of process (Barnett v. Reed, 51 Pa. St. 190; 88 Am. Dec. 574), then, certainly, obtaining a judgment by fraud and perjury, when there was never any demand in favor of June against Antcliff, and suing out an execution upon such judgment, when the defendants knew that it was false and fraudulent, and extorting money under such execution, is also an abuse of process.
The learned judge of the Jackson circuit was in error in directing a verdict for the defendants. The judgment of the court below is reversed, and a new trial granted the plaintif, with costs of this court.
AL ST. BR., VOL XXI.-85
MALICIOUS PROSECUTION. – An action for damages may be maintained for the malicious prosecution of a civil suit without probable cause, to the injury of defendant therein, even though there was no interference with his person or property: McPherson v. Runyon, 41 Minn. 624; 16 Am. St. Rep. 727. Upon the question of the malicious prosecation of a civil sait, see note to Williams v. Hunter, 14 Am. Dec. 699-603; McCardle v. McGinley, 86 Ind. 538; 44 Am. Rep. 343, and note 346–348; note to Burton v. Knapp, 81 Am. Dec. 476– 480; Vela v. Guerra, 75 Tex. 695.
MALICIOUS PROSECUTION. - Three things must be shown to maintain a action for malicious prosecution; the want of probable cause, the existence of malice, and that the prosecution is ended when the action is commenced: Stoddard v. Roland, 31 8. O. 342; Livingstone v. Hardie, 41 La. Ann. 311. “Malice means wickedness of purpose, or a spiteful or malevolent design against another, or a purpose to injure another, or a design of doing mischief, or any evil design, or an inclination to do a bad thing, or a reckless disregard of the rights of others, or an intent to do an injury to another, or absence of legal excuse, or any other motive than that of bringing a party to justice": Shannon v. Jones, 76 Tex. 141. “Probable cause means a reasonable ground of suspicion, supported by facts and circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged ": Shannon v. Jones, 76 Tex. 141; Anderson V. Hor, 116 N. Y. 336. The question of malice is one of fact, and the existence of probable cause is a question both of law and fact: Shan. non v. Jones, 76 Tex. 141. Where there is no dispute as to the existence of the facts, probable cause is to be determined by the court alone: Anderson v. How, 116 N. Y. 336; Gilbertson v. Fuller, 40 Minn. 413.
MALICIOUS PROSECUTION - PROPER FORM OF ACTION. - Action on the case is the proper remedy against a person sought to be charged with liability for a malicious prosecution: Stone v. Stevens, 12 Conn. 219; 30 Am. Dec. 611, and note. But see Kramer. v. Lott, 50 Pan St. 495; 88 Am. Deo. 656, and note
SHIPLEY V. COLOLOUGH
(81 MICHIGAN, 624.) NEOLIGENOB - LIABILITY FOR DAMAGE DONE BY CATTLE UNLAWYOLLY DI
HIQHWAY. – One who turns his cattle loose into a highway, leaving thom unattended, in violation of a statuto, assames all the risks of such action, and is liable for damage done by them in overturning a sulky lawfully in the highway. Brooks and Conway, for the appellant. Herbert A. Forrest, for the respondent
CAHILL, J. In December, 1888, the defendant, Colclough, was the owner of land lying on both sides of a public highway in Buena Vista township, Saginaw County. He was ao customed, at that time, to drive his cattle every morning from his field on the south side of this highway, and in a westerly direction, about forty-five rods along the highway, and into his field on the opposite side of the road. This highway was very little traveled, but crossing it at nearly right angles, and not far from this place, was the Genesee plank-road, a great thoroughfare. Plaintiff's son, Colon Shipley, was in the babit of driving plaintiff's cattle along this highway every morning, to a field east of Colclough's land. In doing this, he drove a borse hitched to a sulky.
Plaintiff's claim is, that Colon, returning one morning from this task, and riding in the bulky, was met by two of Colclough's cows on this road opposite Colclough's land; that one of the cows booked and pushed the other against and down under the wheel of the sulky, and that the cow, in rising up, overturned the sulky, and it was thus broken, and otherwise injured. He further claims that the cows were at the time running at large by reason of defendant's carelessness and negligence in turning them into the road, and in going off and leaving them unattended. It was admitted that the statuto prohibiting cattle running at large in the highway was in forco there at that time. Plaintiff sues for damages thus done to the sulky.
Colclough defended on two grounds, claiming, - 1. That the cattle were not at large; 2. That even if they were at large, plaintiff could not recover, because the circumstances did not constitute actionable negligence, and because it was not shown that the cows had any vicious or dangerous habit or propensity which should have led defendant to anticipate and guard against such injury.
And the defendant took the position that the fact of the cows being at large in the public highway did not change this rule. This raises the only question in the case. The judge charged the jury as follows:
“ By the statutes of our state, cattle are not allowed to run at large, unless there is permission granted by the board of supervisors in certain cases. For the purpose of this case, I might say to the jury that cattle of the character described by the witnesses here are not allowed to run at large in the highway in the township of Buena Vista, this county. Where cattle are in the highway, and are attended by the owner, or some person in his behalf, being driven along the highway, they are not considered as running at large. It would be ontirely proper for the owner of cattle driving them from ono inclosure, or one field, across the highway, or up and down the highway, to enter another field for purpose of pasture; and if he did so, he is not doing an unlawful act.
“In this case, if you find as a matter of fact that Mr. Colclough, the defendant, drove his cattle from the field upon his farm, into the highway, for the purpose of having them enter another field on the opposite side of the highway, where he had & pasture, the question then for you to consider would be, whether in doing that act he exercised reasonable care in taking the cattle from one field to the other; that is, so that they would not go astray, and be in fact at large. In determining that question you will consider the number of cattle that he had in charge that morning (if you find that he was in charge of the cattle), the character of the cattle, and the time when they were driven into the road by him, the time in the mording, the extent of the travel in the cross-road, in determining the question of reasonable care on his part."
This instruction was as favorable to defendant as he was entitled. In turning a herd of cattle loose into the highway, and going away and leaving them unattended by any one, de fendant violated a statute of the state, and he assumed all the risks of such action. The authorities are almost uniform that "the violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur"; 1 Shearman and Redfield on Negligence, sec. 13.
“These principles apply not only where the statute or ordinance declares that persons violating it shall be liable for any damage sustained by reason of its breach, but also where it contains no such provisions, and simply imposes a penalty, by way of fine or otherwise, for disobedience. Nor is the plaintiff, in such a case, bound to prove that the act required by the law was one which by its nature was essential to the exercise of due care by the defendant": 1 Shearman and Redfield on Negligence, sec. 13.
In the case of Holden v. Shattuck, 34 Vt. 336, 80 Am. Dec. 684, upon which counsel for defendant rely, the court clearly intimated that if the horse had been unlawfully in the highway the conclusion of the court would have been different; but in that case it was held that the horse was not unlawfully in the highway. The court uses this language: “The whole trial, including the charge of the court, proceeded upon the
assumption that the defendant had no right to have or permit bis horse to be loose in the highway, and that if he was there through the carelessness of the defendant, he (the defendant) was liable in law to respond to any damage that should be caused thereby. If this is the true view of the subject, we should have no great difficulty in upholding the verdict under the charge, in its relation to the evidence given on the trial."
There is no error in the judgment, and it will be affirmed, with costs.
ANIMALS – HIGHWAYS. — The owner of animals mast keep them upon his own promises, and he cannot use the public highway for a public pasture for thom; Robinson v. Flint etc. R. R. Co., 79 Mich. 323; 19 Am. St. Rep. 174. The owner of domestic animals is responsible for mischief committed by them, whon they are in a place where it is unlawful for them to be: Decker v. Gammon, 44 Mo. 322; 69 Am. Dec. 99; Chunot v. Larson, 13 Wis. 636; 28 Am. Rep. 567.
ENGEL V. Smith.
[82 MICHIGAN, 1.) NEOLIQENOR - FAILURE TO GUARD TRAP-DOOR - The mero existence and
ase of trap-doors, elevator-shafts, and similar openings in floors of warehouses, manufactories, or other business buildings is not evidence of negligence; still, they are dangerous openings, especially if located in places obscured by darkness, or in such close proximity to doors that a person entering may step into them unawares. The fact of their dangerous character makes it the duty of those maintaining them to properly guard them when they are open. If it is not practical to guard them with a railing, the owner is bound to give actual notice of the danger to any one lawfully approaching them, and in default of such notice is
liable for all injuries resulting therefrom. CONTRIBUTORY NEGLIGENCE – FAILURE TO LOOK OUT FOR OPEN TRAP-DOOR.
- It is not contributory negligence in an employee to fail to look out for danger arising from an open trap-door, when there is no reason on his part to apprehend any such danger. Every one has a right to presume that another, owing a special duty to guard against danger, will perform
that duty. WHEN QUESTION OF CONTRIBUTORY NEGLIGENCE IS NOT FREE FROM DOUBT,
the facts should be submitted to the jury. NEGLIGENCE — FAILURE TO GUARD TRAP-DOOR. Where injury results from
a failure of employees to properly guard an open trap.door while in use, their violation of instructions to guard it oannot be shown in defense,
Eldredge and Spier, for the appellants.