It appeared in the case of Graves v. City of Battle Creek, 95 Mich. 266, upon which the court below relied in making the order, that the plaintiff was seeking to recover for personal injuries. She appeared as a witness, and the jury observed her use of the injured arm and wrist. A physician testified in her behalf to its condition and the prospect of recovery. He was asked:

"Is the fact that the plaintiff is able to use her arm in the ordinary ways, as it has appeared here, as she used it in this room, as you have seen her when she was in the witness chair,-is that proof that the injury to the arm has subsided, and that there is no pain there; that is, is there any surgical proof?"

This question was permitted to be answered. The defense then requested the court to direct that plaintiff remove her glove from the injured hand and exhibit the hand to the jury; also that she submit the injured hand to a physician to be examined in the presence of the jury. This was refused. It was held by this court that the direction should have been given. It was said:

"The rule is well recognized by substantially all the courts of the country that the injured party may exhibit his wounds to the jury, in order to show their nature or extent, and that rule has been followed in this State. Testimony which is open to one party ought logically to be open to his opponent, if it can be obtained with due regard to decency, and in the orderly conduct of the trial."

The fact was recognized in the above case that a wide discretion is vested in the trial court, which justifies a refusal to require the examination when the necessities of the case are not such as to call for it, or where the sense of delicacy of the plaintiff may be offended by the exhibition, or where the testimony would be merely cumulative.

The rule thus laid down did not, however, justify the order made in the present case. The mare in question was in possession of the plaintiff and upon his premises.

The order compelled the plaintiff to permit the parties to enter upon his premises to make the examination, and by a party whom the plaintiff objected to as coming there. The court had no power to compel the plaintiff to submit to such an invasion of his premises. If the plaintiff refused to let the mare be examined at that time, or to have his premises visited for that purpose, it was his right. The testimony also was merely cumulative. Several witnesses had seen the horse only the day before, and gave testimony as to her condition.

For this error the judgment must be reversed, and a new trial ordered. We need not discuss the other questions raised.

MCGRATH, C. J., GRANT and MONTGOMERY, JJ., concurred. HOOKER, J., did not sit.

VAN DUSEN v. KING.

SHERIFFS ABUSE OF PROCESS-INTEREST IN SUIT-CHATTEL MORT

GAGE-DURESS.

A sheriff has no authority to execute a writ of attachment issued out of justice's court to enforce a claim which he has undertaken to collect for a portion of the proceeds, and a chattel mortgage given to avoid a threatened levy by virtue of such writ is invalid for fraud and coercion. How. Stat. S$ 590, 596, 606, 7050, 9035.

Error to Montcalm; Davis, J. Submitted June 12, 1895. Decided July 2, 1895.

Trover by Amanda M. Van Dusen against Charles M. King for property seized under chattel mortgage. From a judgment for defendant, plaintiff brings error. Reversed

Lemuel Clute and Miller & Clute, for appellant.

F. A. Miller, for appellee.

MCGRATH, C. J. This is trover for the seizure and sale of a yoke of steers, under a chattel mortgage. Defendant, while sheriff, took for collection a note against plaintiff's husband, under an agreement with the payee that he, the sheriff, was to have half of the proceeds in case he succeeded in collecting it. He then went before a justice, took out a writ of attachment in the name of the payee of the note, and, armed therewith, went to the house of the maker and threatened to make a levy unless the note was paid. To avoid such threatened levy, the mortgage was given by plaintiff's husband, and defendant afterwards seized the property thereunder. Defendant testifies that plaintiff at that time made no claim to the property, but refused to join in the mortgage. It was admitted upon the trial that the property did in fact belong to plaintiff when the mortgage was given, and when the steers were taken under the mortgage. The court, however, instructed the jury that, if she stood by and assented to the giving of the mortgage, she was estopped. This instruction was, perhaps, supported by the testimony of the defendant, although his testimony was disputed, not only by plaintiff, but by others. The court further instructed the jury that the sheriff had a right to take the course he did to make this collection, and "that the question as to how he came by the note, so long as it is not disputed but what it was a valid indebtedness, is no question or concern to you."

In this the court erred. 1 How. Stat. § 590, provides that

"No sheriff, deputy sheriff, or coroner shall appear in any court as attorney or counsel for or on behalf of any party in a suit; nor shall he draw, make, or fill up any writ, declaration, plea, or process for any such party; nor shall he, with intent to procure himself to be employed in the collection of any demand or the service

of any process, advise or counsel any person to commence any suit or proceeding; and either of said officers, for a violation of any provision of this section, shall forfeit the sum of fifty dollars."

In Garrison v. Hoyt, 25 Mich. 509, it was held that the alteration of a summons by a sheriff, although authorized so to do by the justice, invalidated the process.

2 How. Stat. § 7050, provides that

"No justice of the peace or constable shall, directly or indirectly, buy or be interested in buying any bond, note, or other demand or cause of action, for the purpose of commencing any suit thereon before a justice; nor shall any justice or constable, either before or after the suit brought, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money or valuable thing to any person in consideration of, or as a reward for, or inducement to, the placing or having placed in the hands of such justice or constable any debt, demand, or cause of action whatever for prosecution or collection."

Section 7052 subjects the offending justice or constable to a fine not exceeding $500, or imprisonment not exceed ing six months, or both fine and imprisonment. Section 596 authorizes sheriffs to serve or execute process issuing from a justice, and to exercise all the powers of constables. Section 9035 provides that

"No judge, justice, sheriff, or other officer whatsoever, or other person to whom any fees or compensation shall be allowed by law for any service, shall take or receive any other or greater fee or reward for such service, but such as is or shall be allowed by the laws of this State." Section 606 provides that the coroner shall serve and execute all process when the sheriff shall be a party.

Clearly, under these statutory provisions, the sheriff had no authority to execute the writ of attachment. He concealed from the parties the fact that he was there as a party in interest, and asserted a right, which he did not possess, of acting as a public officer, and, by threatening a levy and sale if the debt was not settled, secured the mortgage. Under such circumstances, it must be held

that the mortgage was obtained by fraud and coercion. A sheriff cannot be allowed to wield the process of the courts in his own interest, and thus abuse such process. As is said in one of the cases, it is not so much a question of individual right as of public policy. Mills v. Young, 23 Wend. 314; Stewart v. Magness, 2 Cold. (Tenn.) 310; Sherman v. Boyce, 15 Johns. 443; Caffrey v. Dudgeon, 38 Ind. 521; Carpenter v. Stilwell, 11 N. Y. 61.

The judgment must be reversed, and a new trial awarded.

LONG, GRANT, and MONTGOMERY, JJ., concurred. HOOKER, J., did not sit.

SMITH v. CITY OF JACKSON,

DEFECTIVE STREETS-CONTRIBUTORY NEGLIGENCE.

One who drives at a trot along a street, upon a dark night, within four or five feet of a lighted red lantern displayed near the center of the street, and seen by him when several rods distant, is guilty of contributory negligence precluding a recovery for injuries sustained by falling into an excavation thus sought to be guarded.

Error to Jackson; Peck, J. Submitted June 12, 1895. Decided July 2, 1895.

Case by Adelbert H. Smith against the city of Jackson for personal injuries. From a judgment for defendant, plaintiff brings error.

Affirmed.

Blair, Edwards & Blair, for appellant.

William E. Ware, for appellee.