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says he did not lean against the rail, but duty to invitees, it is clear that she owed that his hand was upon the defective rail. no duty to a mere licensee, as the plaintiff At any rate, the rotten end of the rail gave was. The nonsuit was properly ordered. way, and the plaintiff was precipitated to Exceptions overruled. the ground or landing below, and was injured. This suit is brought to recover for

(112 Me. 560) this injury.

CUOZZO V. MAINE CENT. R. CO. The plaintiff did not go to the barber shop

Oct. 21, to be barbered, or to do any business with (Supreme Judicial Court of Maine.

1914.) the barber. He went purely for his own (1. CARRIERS ($ 258*) TRANSPORTATION OF convenience and to gratify his own whim or PASSENGERS-SPECIAL CONTRACTS - INDEFIinclination. That being the case, he was a NITE AGREEMENTS. mere licensee, and the defendant as landlord Where plaintiff telephoned the railroad staowed him no duty, except the negative one transportation and make arrangements to transof not wantonly to injure him. He was not port a number of men who were coming to B., invited.

and was told that the agent would see what he The distinction between licensees and in- could do, and the agent later telephoned plainvitees is stated in Stanwood v. Clancey, 106 many men were coming, which plaintiff did not

tiff, saying that it was all right and asking how Me. 72, 75 Atl. 293. In that case the court know, and there was no statement anywhere as said that:

to what kind of transportation was to be pro"While it is the duty of the owner of a build- vided, whether regular fare, mileage books, or ing, having it in charge, to be careful in keep- passes, the arrangement was too indefinite to ing it safe for all those who come there by his constitute a contract. invitation, express or implied, he owes no such

[Ed. Note.-For other cases, see Carriers, duty to those who come there for their own Cent. Dig. $$ 1035, 1036; Dec. Dig. $ 258.*] convenience.

Toward a licensee the 2. CARRIERS (8251*) – TRANSPORTATION OF owner owes no duty, except that he shall not

PASSENGERS-SPECIAL CONTRACTS-AUTHORwantonly injure him. Dixon v. Swift, 98 Me.

ITY TO MAKE. . 207 [56 Atl. 761]; Russell v. M. C. R. R. Co., A railroad station agent had no authority 100 Me. 408 [61 Atl. 899]; Parker v. Portland to bind the company by a contract for the Publishing Co., 69 Me. 173 [31 Am. Rep. 262]. transportation of a party of men to his staIt is well settled that when the owner of a build- tion without receiving for the benefit of the ing fits it up for business uses, he impliedly in company the full consideration for the transvites all persons to come there whose coming portation or arranging for its payment upon is naturally incident to the business carried on call for the tickets. there. And if he leases the building, or parts

[Ed. Note.-For other cases, of it, to tenants, he impliedly invites all per- Cent. Dig. $8 1014, 1026; Dec. Dig. $ 251.*]

see Carriers, sons to come there in connection with the business carried on by the tenants. At the same 3. CARRIERS ($ 277*)

At the same 3. CARRIERS ($ 277*) – TRANSPORTATION OF time, if the building is open, and there is noin

PASSENGERS-BREACH OF CONTRACT-DAMing to indicate that strangers are not wanted,

AGES. he impliedly permits and licenses persons to

Where a railroad company broke a concome there for their own convenience, or to tract for the transportation of laborers, wheregratify their curiosity. To those invited, he by their services were lost to plaintiff and he owes the duty of exercising care

* * but to was obliged to secure other laborers to take those merely licensed he owes no such duty. their place, but it appeared that all the exPlummer v. Dill, 156 Mass. 426 [31 N. E. 128, penditure necessary to engage the laborers and 32 Am. St. Rep. 463].”

bring them to the point where such transporta

tion was to commence had been made prior to It will be noticed that the duty of a land- the making of the contract, the only damages lord to exercise care to have the leased prem- recoverable were the difference between the regises safe even for invitees arises, in the fore- ular or mileage fare and the special rate con

tracted for, and in the absence of any evidence going discussion, when he has the building as to any special rate there could be no rein charge. In this case the defendant con- covery. tends that the case does not show that she [Ed. Note.-For other cases, see Carriers, was in charge, or had any control of the Cent. Dig. $$ 1082-1084; Dec. Dig. $ 277.*] premises, or was under any legal obligation Report from Supreme Judicial Court, to make repairs. She says that in fact the Penobscot County, at Law. case falls into the ordinary class where in Action by George Cuozzo against the the absence of express, valid agreement, the Maine Central Railroad Company. On relandlord is not bound to make repairs, but port. Judgment for defendant. the tenant takes them as he finds them, and Argued before SAVAGE, C. J., and SPEAR, a visitor has no greater rights than the KING, HALEY, HANSON, and PHILtenant. McKenzie v. Cheetham, 83 Me. 543, BROOK, JJ. 22 Atl. 469; Whitmore v. Orono Pulp & George E. Thompson and James D. Rice, Paper Co., 91 Me. 297, 39 Atl. 1032, 40 L. R. both of Bangor, for plaintiff. Fellows & A. 377, 64 Am. St. Rep. 229; Bennett v. Sul- Fellows, of Bangor, for defendant. livan, 100 Me. 118, 60 Atl. 886; Hill v. Foss, 108 Me. 467, 81 Atl. 581, Ann. Cas. 19130, PER CURIAM. The declaration in this 971.

case sets up a contract on the part of the deBut it is unnecessary to consider this last fendant company through its authorized agent contention. Assuming that the defendant to furnish transportation from Portland to was in charge of the premises, and owed a | Bangor for 17 men alleged to have been en


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes


gaged by the plaintiff to enter his employ on Bangor and for me to make transportation for some contract work in the city of Bangor,

them.” and alleges a breach of the contract by a re- It is evident from this testimony that all fusal and failure of the defendant to trans- the expenditure necessary to engage these port the men, as agreed; by reason of which men and bring them to Portland had been the men' did not come to Bangor, whereby made prior to any attempted contract with their services were lost to the plaintiff and the defendant company for transportation. he was obliged to secure other laborers to If therefore the defendant was guilty of a take their place to his damage in the sum of breach of contract, the damages could be only $500. The plaintiff alleges that, in considera- | the difference between a regular or mileage tion of his agreement with the station agent fare from Portland to Bangor and the special in Bangor, he paid the money to him for rate which the contract provided for. But, the transportation of the men.

as the contract, as shown by the plaintiff's But this allegation is entirely erroneous, evidence, contained no specification as to as the plaintiff's own testimony unequivocal- what the rate of transportation should be, ly shows. This allegation being negatived, there is no proof upon which to found an we are unable to discover, viewing the plain- estimate of damages. tiff's evidence in the most favorable light,

This alleged contract was consummated at any adequate proof of a contract. The evi- Bangor. What occurred afterward could dence shows no act or promise on the part be of no avail. Therefore the letter claimed to of the agent at Bangor which could be re- be evidence of a contract cannot change the garded as binding upon the defendant com- actual transaction as related by the plaintiff

himself. pany, as his principal. [1] The plaintiff's contract is practically

Judgment for defendant. stated in the following answer made to the court:

(112 Me 277) “I telephoned to the Maine Central agent at COLBATH v. EVERETT D. CLARK SEED Bangor, Mr. Benson, asking him if he could is

CO. transportation, make arrangements to transport these men. He asked me what train (Supreme Judicial Court of Maine. Oct. 22, they would come on, and I said they would come

1914.) on the night train from Portland to Bangor; FRAUDS, STATUTE OF ($ 23*)-PROMISE TO ANthat they were in Portland now getting their

SWER FOR ANOTHER'S DEBT_ORIGINAL OR meals. He says, 'I will see what I can do.

COLLATERAL PROMISE. Then I got another telephone message from Mr. Benson, the Maine Central agent, saying it was a contract to furnish potatoes to defendant, tel

Where a seller of potatoes to K., who had all right. He asked me how many men, and ephoned defendant that he had been informed didn't know how many exactly there were, and that K. was not good financially, and that he I telephoned back to Portland to my foreman would not ship the potatoes unless defendant who was there."

would agree to pay for them, and defendant's There was no statement anywhere in the agent thereupon stated that he would pay for

them if K. did not, and the potatoes were then case of what kind of transportation the ticket shipped to defendant, the promise was an origagent at Bangor was to provide, whether inal one, and not a collateral promise to anregular fare, mileage books, or passes. Such swer for another's debt, required to be in writevidence is too vague for proof of a contract. ing by Rev. St. c. 113, § 1, par. 2. [2] Assuming that the agent at Bangor did

[Ed. Note.-For other cases, see Frauds, Stat

ute of, Cent. Dig. $$ 18, 19; Dec. Dig. § 23.*] and said just what the plaintiff says, we

On Motion from Supreme Judicial Court, still think it was beyond the scope of his

. agency to bind the defendant company, with Aroostook County, at Law.

Action by George M. Colbath against the any such contract as claimed, without first

Everett D. Clark Seed Company. Verdict for having received for the benefit of the company the full consideration for the transporta- plaintiff, and defendant moves to set the ver

dict aside. Motion overruled. tion which the company was to furnish, or arranging for its payment upon call for the

Argued before SAVAGE, C. J., and CORtickets. There is no evidence of such ar

NISH, BIRD, HALEY, HANSON, and PHILrangement. The plaintiff, accordingly, had no

BROOK, JJ. valid contract for the transportation of these James Archibald, of Houlton, and W. T. men with the defendant company.

Spear, of Ft. Fairfield, for plaintiff. Powers [3] But even upon the assumption that the & Guild, of Ft. Fairfield, for defendant. plaintiff did have a contract for the transportation of these men from Portland to

PHILBROOK, J. The plaintiff having obBangor, the evidence shows that the damages tained a verdict in his favor, the defendant claimed by the plaintiff practically all ac- brings this case before us on a general mocrued before the contract, which he claims, tion to have the verdict set aside, as being was made with the defendant company. against the law and the evidence. When he went to Mr. Benson, the ticket agent

Briefly stated, the contention between the in Bangor, he says:

parties is whether the defendant made an “I received information that there was a original promise to pay for potatoes shipped crew of men in Portland ready to come to by, the plaintiff to the defendant, and received

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

by the defendant, or whether the defendant ! Mr. Clark's testimony as to the telephone merely made an oral promise to answer for interview varied materially from that of the the debt of another which could not be en- plaintiff. He states as follows: forced under the provisions of R. S. c. 113, 8 “Some one on the phone in Mr. Klippel's of1, par. 2.

fice said: "My name is Colbath; and I have It appears that the defendant had a con- just sold a car of potatoes to Mr. Klippel, and

I want the shipping instructions.' And I turntract with one Klippel whereby the latter was ed to Mr. Klippel, and he says: 'Yes; that is to furnish a large quantity of potatoes to the the car that is to go to Milford.'

And I says: defendant. The defendant claimed that it :The shipping instructions, Mr. Klippel says, had advanced money on the contract, or, as ford, Conn. And

he took it down; that is, he

is to the Everett D. Clark Seed Company, Milthe defendant claimed, it had paid in advance took the time to take it down, apparently. And for nearly all the potatoes which Klippel he then said: 'Now, Mr. Clark, who is going might purchase and deliver to the defendant. to pay for these potatoes?' And I said: "Our It was not claimed by either party that Klip- have paid for these potatoes, and we are dealing

dealings are entirely with Mr. Klippel; we pel was the agent of the defendant.

only with Mr. Klippel.' And I said, further : In the early part of April, 1912, the plain- Mr. Klippel is good for a car of potatoes, isn't tiff telephoned Fred M. Clark, secretary and he?? And Mr. Colbath replied: Yes; I 'guess

he is all right, and so are you good for a car of treasurer of defendant company, who was potatoes, aren't you?' And I replied: 'Yes; I then at Ft. Fairfield, and this telephone mes guess we are all right. Colbath says: "That sage was the only method employed in mak- is all I want to know.' And I requested that ing the contract on which plaintiff now relies. the bill of lading be gotten to me, so I could

get it on the morning train the day following. The testimony given by the plaintiff on direct He also said he was going that afternoon away, as to the conversation over the telephone is and he would arrange to have it left with the as follows:

station agent; and as I came through, I got “I told Mr. Clark that I had been informed the bill of lading at the Fairmont station as I

remember it." that Klippel was no good financially, and I could not ship any potatoes on his order, and I The defendant also introduced two letters could not ship them unless he agreed to pay written by the plaintiff less than a month for them. He told me he could not pay for them because he had already paid Mr. Klippel. / after the telephone conversation transpired I says: "You have not paid for my potatoes which are as follows: and I am not going to ship them unless you

“Easton, Me., 4/30, 1912. will pay for them.' He says: 'I have got to have the potatoes and I will pay for them if “Everett B. Clark Seed Co., or Mr. Clark. Klippel don't.' I says: 'I have been informed “Dear Sirs: I have not received pay from Mr. that Klippel is no good, and I will not ship Klippel for that car seed ship you which you them unless you agree to pay for them.' And guaranteed payment. I have not been home he says: 'All right; I will pay for the potatoes since I went South the day I sold the car potaif Klippel don't; let the potatoes go forward.' toes. Wish you would look after it. I need the I hung up the receiver and shipped the potatoes money. I am at Bristol, Ct., 74 S. Elm St. and sent him the bill of lading.'

"Yours truly,

G. M. Colbath." On cross-examination the plaintiff stated

"Easton, Me., May 4, 1912. the substance of the telephone interview in "The Everett B. Clark Seed Co., Milford, Ct. terms somewhat more favorable to his con “Dear Sirs: Yours at hand, I am surprised tention, and said that he charged the potatoes at the stand you take in regard to car potatoes, to the defendant and sold them on the credit had over the phone when you were at Fort Fair

you surely have not forget the conversation we of the defendant, but the following questions field. and answers appear in the cross-examination "Mr. Klippel called me wanted car seed. I of the plaintiff:

made him price he said would see his man and

let me know. I called up C. E. Spencer and "Q. Didn't you ship these potatoes because asked him if Klippel was all right he said he you understood Mr. Clark to agree to pay if would not sell him without the cash, but you Klippel didn't?

was going to have the potatoes what ever you “A. That is just what I did; yes, sir.

said was all right. I did not have time to arrange “Q. And that was his agreement?

to get pay of Mr. Klippel before the potatoes "A. Yes, sir.”

went forward because he wanted them to go The plaintiff also gave these answers in his that night and I was going on 4 p. m. train that cross-examination:

night so I called you and told you could not let "Q. But you say Mr. Clark did tell you that potatoes go with being paid for for. You said if Klippel didn't pay he would?

potatoes but if Mr. Klippel did not pay for "A. Yes, sir.

them you would so I let the potatoes go and "Q. And you accepted that agreement?

billed them straight to you and left the bill "A. Yes, sir."

of laden and invoice with the station agent at In a letter from the plaintiff to the defend- Easton for you.

Now Mr. Klippel may pay ant dated May 4, 1912, he tells the defendant: but if he don't I shall expect you to, just as you

for these potatoes all right when I get home “I had my man on the phone on same line agreed to over the phone. I had my man on so I have witness to conversation we had the phone on same line so I have witness to over the phone."

conversation we had over the phone. Will be This important witness was not produced home last of next week.

"Yours truly, at the trial, nor was his absence accounted

G. M. Colbath." , Charged the potatoes to the defendant, his substance of the evidence relating to the conbooks showing such charge were not produc- tract adduced by each party to this suit. Uped nor their absence accounted for.

on this evidence the defendant says that it

has not made any promise which can be en- , 2. ARREST (8 63*)-AUTHORITY TO ARREST forced against it; that such promise as it did

WITHOUT WARRANT. make was not original, but collateral and or without a warrant on information or suspi

An officer may not arrest for a misdemeanwithin the statute of frauds. The plaintiff cion, unless the misdemeanor was actually comsays otherwise.

mitted in his presence; and hence an arrest The case presents an interesting field for was not justifiable, though the officer suspected research. At the outset we must observe that in his suit case, in violation of the law pro

that the person arrested had intoxicating liquors the potatoes were not delivered to Klippel, hibiting the illegal manufacture, transportation, but were delivered to the defendant at Mil- and sale of such liquors. ford, Conn., in accordance with shipping in [Ed. Note.-For other cases, see Arrest, Cent. structions given the plaintiff by defendant's Dig. $$ 145–156; Dec. Dig. $ 63.*] agent, and presumably the defendant received 3. EVIDENCE (8 130*)--RELEVANCY_EXCLU

SION AS RES INTER ALIOS ACTA. the benefit of such delivery. The benefit thus

In an action against a deputy sheriff for accruing, as to its legal effect upon the prom-assaulting a person whom he suspected of carise, has furnished much discussion in many rying intoxicating liquor in his suit case, evicases, and the difference in opinion between dence as to the trouble which the officers had such learned jurists as Chief Justice Shaw of liquor in suit cases and hand bags, and that

been having with those illegally transporting Massachusetts and Chancellor Kent of New they had previously made seizures of liquor York is interesting and marked. For an ex. illegally transported in that way, was properly haustive and able discussion of this question excluded, where there was no attempt to consee Hurst Hardware Co. v. Goodman, 68 w. nect such acts with plaintiff.

[Ed. Note.-For other cases, see Evidence, Va. 462, 69 S. E. 898, 32 L. R. A. (N. S.) 598, Cent. Dig. $ 403; Dec. Dig. $ 1130.*] Ann. Cas. 1912B, 218. It is also noteworthy 4. INTOXICATING LIQUORS (§ 249*)-SEARCHthat not only has the New York court now ES AND SEIZURES–NECESSITY OF WARRANT. substantially adopted the views of the Massa That the circumstances were such as to chusetts court, but the latter have been adopt-cause an ordinarily prudent officer, in the exer

cise of his official duties, to believe that plained by the federal court. Emerson v. Slater, tiff had intoxicating liquor in his suit case for 22 How. 28, 16 L. Ed. 360; Davis v. Patrick, unlawful purposes, did not justify the officer 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826. in making a search of the suit case and using The rule as it appears in Emerson v. Slater the force reasonably necessary for that purpose,

since, while the statute authorizes an officer to is:

seize intoxicating liquors illegally kept without "Whenever the main purpose and object of the a warrant, no search without a warrant is aupromisor is not to answer for another, but to thorized. subserve some pecuniary or business purpose of [Ed. Note.-For other cases, see Intoxicating his own, involving either a benefit to himself, Liquors, Cent. Dig. $$ 376–385; Dec. Dig. $ or damages to the other contracting party, his 249.*] promise is not within the statute, although it may be in form a promise to pay the debt of an- 5. ASSAULT AND BATTERY (8 10*)-ARREST other, and although the performance of it may

WITHOUT WARRANT-PROVOCATION. incidentally have the effect of extinguishing assaulted or arrested plaintiff for the purpose

Where a deputy sheriff without a warrant that liability."

"When a benefit, legal or pecuniary, to the of ascertaining whether he was transporting inpromisor is the inducement for a promise of in-toxicating liquor in his suit case, the court propdemnity, such promise is not within the statute erly refused to charge that if plaintiff, for the of frauds as being a special promise to answer purpose of misleading the officer, deliberately for the debt or default of another, but is an created circumstances arousing the suspicion original promise binding upon the promisor." of the officer, intending to get the officer into McCormack v. Boylan, 83 Conn. 686, 78 Atl. trouble, and if the officer was thereby misled 335, Ann. Cas. 1912A, 882.

and became suspicious that a crime was being

or had been committed, and under those circumIf there were no element of benefit to the stances committed the assault complained of, the defendant in this case, we should be of opin- / plaintiff could not recover. ion that the plaintiff had only proved a prom [Ed. Note.-For other cases, see Assault and ise which was within the statute of frauds, Battery, Cent. Dig. 88 6–8; Dec. Dig. $ 10.*] but that element of benefit being so plainly Exceptions and Motion from Superior apparent, under the authorities cited, we Court, Cumberland County, at Law. must hold otherwise.

Action by Linwood Caffini against George Motion overruled.

E. Hermann. Verdict for plaintiff, and defendant brings exceptions and moves for a

new trial. Motion and exceptions overruled. (112 Me. 282)

Argued before SAVAGE, C. J., and CORCAFFINI V. HERMANN.

NISH, BIRD HALEY, HANSON, and (Supreme Judicial Court of Maine. Oct. 22, PHILBROOK, JJ.


Charles G. Keene, Jacob H. Berman, and CY OF EVIDENCE-EXCESSIVE FORCE.

Bernard A. Bove, all of Portland, for plainIn an action for assault and battery against tiff. Hinckley & Hinckley, of Portland, for a deputy sheriff, who sought to justify his con- defendant. duct on the ground that he was making a legal arrest, evidence held to show that excessive force was used.

PHILBROOK, J. Action to recover dam[Ed. Note. For other cases, see Assault and ages for assault and battery, in which the Battery, Cent. Dig. § 51; Dec. Dig. 35.*] plaintiff recovered a verdict of $200. The

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

91 A.-64

defendant presents exceptions and the cus-, even an officer may not arrest for a misdetomary motion to have the verdict set aside mearior without a warrant, on information and new trial ordered.

or suspicion, unless the misdemeanor was [1] The plaintiff is an Italian, who had actually committed in his presence. Palmer been in this country four or five years, em- v. Maine Central Railroad Co., 92 Me. 399, ployed as a laborer, and had acquired only 42 Atl. 800, 44 L. R. A. 673, 69 Am. St. Rep. a limited knowledge of our language.

On 513. Under the circumstances of this case the 16th of August, 1913, he took an electric the arrest was not justifiable, even if excescar at Old Orchard about 8:45 in the evening sive force had not been used, and it seems and came to Portland, bringing in his hand plain that such force was used.

The prea dress suit case containing his wearing ap- siding judge was correct in ordering a verparel. He arrived in Portland about quarter dict for the plaintiff. past 10, and, according to his testimony, [3] Testimony was offered by defendant, soon after leaving the car he was accosted and excluded, relative to trouble which the by the defendant, who, although a deputy enforcement officers had been having with sheriff, was not in uniform, and who seized those who violated the law by illegally transthe plaintiff's suit case, attempting to take porting liquor in suit cases and hand bags; it from him. The plaintiff testified that he but as there was no attempt to connect such thought it was an attempt to steal his suit acts with this plaintiff there was no error in case and refused to give it up. After some the ruling. The same was true relative to struggle he says the defendant struck him offered evidence that the officers had made on the hand four or five times with an in- previous seizures of liquor illegally transstrument which proved to be a black jack. ported in the way just referred to. He says that he was then seized by the de [4, 5] The defendant presented three refendant and another person and that they quests for instructions, all of which the prestarted with him for the police station. siding judge refused to give, except as they Thereupon an officer in uniform appeared were given in the charge. They were as foland told the plaintiff that the persons who lows: had seized him wanted to see what he had

"1. If you believe from all the evidence that in his suit case, and then, the plaintiff says, the circumstances were such as would have he dropped his suit case, and when the de- caused an ordinarily prudent officer in the exer

cise of his official duties to believe that the fendant could not open it, the plaintiff open- plaintiff had in his dress suit case intoxicating ed it and allowed it to be searched, nothing liquor for unlawful purposes, then the officer contraband being found. The plaintiff was would be justified in making a search of the then permitted to go his way and carry the dress suit case and using whatever force would

be reasonably necessary to accomplish this pursuit case with him.

pose.' [2] The defendant says that he was a dep “2. If you are satisfied that was not a malice uty sheriff especially charged with the duty on the part of the defendant, who, if he comof enforcing the law prohibiting the illegal mitted the acts, believing he was doing his duty, manufacture, transportation, and sale of in- damages, but could recover only the actual dam

then the plaintiff could not recover punitive toxicating liquor. He says that the officers ages to himself. had been having trouble with offenders who "3. If the plaintiff, for the purpose of inisbrought liquors to Portland in suit cases and leading the defendant, deliberately created cirhand bags, and, on the evening in question, fendant, who was an officer of the law, having

cumstances to arouse the suspicion of the dewas with his superior officer, the sheriff of in mind at the time and intending thereby to the county, on Federal street when the plain- get the officer into trouble, and the officer by tiff left the car. He says that either he or

these acts was misled and became suspicious

that a crime or offense was being committed or the sheriff remarked “that fellow looks as had been committed by the plaintiff, and under if he had quite a heavy case," and that pres- these circumstances committed the acts alleged, ently the sheriff said to the defendant, "Go then the plaintiff could not recover, because he get him."

He says he stepped up to the himself would be to blame.” plaintiff and asked permission to look at the As to the first request, it is only necessary suit case, which was refused. He further to call attention to the fact that the statute says that the plaintiff struck at him with an authorizes an officer to “seize" intoxicating umbrella, and that he then said, “Don't do liquors illegally kept, without a warrant, that, because I am an officer; all I want to but not to "search" without such precept. see is what you have got in that dress suit As to the second, the entire point was coycase,” at the same time throwing back his ered in the charge; and as to the third, it is coat and displaying his official badge. Nei- only necessary to say that it does not conther the defendant nor the sheriff had any tain a correct statement of law. warrant authorizing the arrest of the plain Finally, as to damages. Correct instructiff, or any precept authorizing any search tions were given both as to actual and exof the person of the plaintiff. Although the emplary damages, and from the evidence defendant seeks to justify his conduct on and the instructions we think the verdict of the ground that he was an officer making a the jury was not so manifestly wrong as to legal arrest and using no more force than require us to interfere. was necessary, the law is well settled that Motion and exceptions overruled.

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