there for the space of one hour, when the plaintiff gave security for his appearance at the police court of said city at 9 o'clock on the next morning; that he had not been guilty of nor committed any breach of the peace, felony, or any other offense, and was arrested solely for the reason that he produced such play on Sunday evening; that on Monday morning he appeared before such police court in the presence of the judge, and while such court was in session demanded to be shown the complaint and warrant against him, but no complaint, up to that time, had been made, and no warrant issued, and thereupon he demanded his discharge, and was discharged and released by said court without day; that no complaint has ever since been made or warrant issued by any court of competent jurisdiction for the arrest or prosecution of him for said alleged unlawful act; that he was a law-abiding citizen of good fame and character in that community where he lived, and that by reason of the assault aforesaid, and said arrest, and in being handcuffed in the presence of the people there assembled, and dragged through the streets of said city, without due process of law, he was rendered sick, sore, lame, and disordered in body, and suffered great mental anguish, and was greatly scandalized, injured, and prejudiced in his good name and fame, and was disabled from attending to his affairs and business for a long space of time, to wit, 48 hours, and was put to a large expense, etc.

The sole question in this case is whether the superior court act of the city of Grand Rapids deprived the circuit court of Kent county of jurisdiction of the cause of action stated in the declaration.

Section 13 of that act, as amended in 1881 (Laws of 1881, p. 98), provides as follows:

"Said superior court shall have exclusive jurisdiction of all actions of a civil nature, at law or in equity, which may be

brought by or against the board of education of such city, or by or against the said city or any of its officers," etc. How. Stat. § 6576.

The contention of plaintiff's counsel is that, although the defendants were, respectively, superintendent, captain, and lieutenant of the police force, and were acting as such at the time of this arrest, as set forth in the affidavit for the writ, yet they were merely an additional force of constables and watchmen appointed for certain limited purposes, possessing original constabulary powers, and as such were officers of the State, and not properly city officers, within the meaning of the superior court act. It is contended, further, that by the "city officers," as used in this statute, is meant only such officers as are provided for by the charter for general municipal purposes.

Section 1 of title 2 of the charter of the city (Act No. 436, Local Acts of 1887) provides:

*

"The officers of said city shall be one mayor, one treasurer, one comptroller, one clerk, one marshal, one director of the poor, a board of review and equalization, to consist of three members, two aldermen in each ward of said city, one supervisor in each ward, and one constable in each ward of said city, all of whom shall be elected. * * Also one city physician, and so many common criers, keepers of almshouses, workhouse, and penitentiary, pound-masters, inspectors of firewood, inspectors of highways, weighmasters, and auctioneers as the common council shall from time to time direct; all to be appointed as hereinafter provided."

Section 4 provides for a city attorney and an assistant in addition to the above, but in no other place in the charter are police officers named or designated as such officers.

By an act approved May 24, 1881, creating the board of police and fire commissioners of the city,' this board is vested with sole power to elect or appoint and remove police constables and the managing officers of the police force. This is provided for by section 8 of the act. By 'Act No. 389, Local Acts of 1881.

section 9 of the act it is provided that these officers "shall have the same power as constables now have by law, except as to the service and return of civil process and proceedings in civil cases, and shall be subject to the same liability, except as otherwise provided by law."

We are of the opinion that plaintiff's counsel is correct in his contention. The statute creating the superior court must be construed with reference to the provisions of the charter of the city of Grand Rapids and the police force act; and from an examination of the three acts it appears that policemen of the city and the police officers are not named in the charter, and do not come within the designation of the superior court act as city officers. They are not subject to removal under the provisions of the law for the removal of city officers. They are not elected or appointed under the provisions of the charter, but by authority vested in the board of police of the city. Attorney General v. Cain, 84 Mich. 223.

But this is not all. The complaint here made is that the three defendants jointly committed an aggravated assault and battery upon the person of the plaintiff, arrested and handcuffed him, and dragged him through the streets of the city, within the gaze of the people, and without any previous warrant authorizing such arrest, although at the time he was not committing any breach of the peace, and had not committed any felony or other offense, and had not been suspected of the commission of any such offense; and that, after thus humiliating him, he was discharged out of custody without any complaint being made against him for any offense. It is very doubtful whether, under the circumstances here stated, the circuit court would have been ousted of jurisdiction had the offense been committed by a constable or other officer enumerated in the charter as an officer of said city; but, be that as it may, these officers were not enumerated in the charter as city officers,

and the circuit court was in error in holding that the jurisdiction to try the cause was vested exclusively in the superior court.

The order quashing the proceedings, and the judgment in favor of the defendants, must be vacated, with costs, and a new trial ordered.

The other Justices concurred.

IN THE MATTER OF THE ESTATE OF DAVID P. WILCOXx, DECEASED. ALBERT J. BALDWIN ET AL. V.

HANNAH ROBINSON ET AL.

Will-Undue influence-Question for jury.

The trial court is held to have erred in taking the case from the jury.

Error to Clinton. (Daboll, J.)

Submitted on briefs

October 14, 1892. Decided November 4, 1892.

Appeal from order admitting will to probate. Reversed. The facts are stated in the opinion.

Fedewa & Merrill and E. G. Stevenson, for contestants and appellants.

Spaulding & Walbridge, for proponents.

LONG, J. The testator died on January 2, 1891, leaving a last will and testament. The will was made September 13, 1888, and bequeathed all his household goods, wearing apparel, ornaments, and one-third of the remainder of his personal property to his wife, forever, and also devised

to her one-third of his real estate during the term of her natural life. The remainder of his real and personal estate he gave to his son, David P. Wilcox, Jr., forever, providing that, should the son die before he arrived at the age of 21, without issue, then said remainder should go to the testator's wife, forever. This will was approved and allowed in the probate court for Clinton county, March 10, 1891, and from which the contestants appealed to the circuit court.

The beneficiaries under the will are the second wife and her child by the testator. The testator, at the time of his second marriage, had two daughters by a former marriage then living, and at that time was about 76 years of age. Before the death of his first wife, the present Mrs. Wilcox, whose name was Ella Duff, lived in his family. She was a comparatively young woman, and had previously been married.

The will is contested solely on the ground of undue influence, claimed by the contestants to have been exercised over the aged father by the second wife. At his death the testator left an estate of about $35,000, consisting of farming land and personal property, the whole of which, by the terms of the will, was given to his wife and her child, to the exclusion of his daughter, and the representatives of the other daughter, who had died prior to the death of the testator. Considerable testimony was offered upon the trial in the court below tending to show undue influence, but the court was of the opinion that some of this testimony was too remote, and that no showing was. made near enough to the time of the execution of the will to make a case for the determination of the jury. Many pages of the record are taken up with offers of testimony, and which, with the testimony taken by deposition, counsel for contestants claim the court erred in excluding, and in determining as matter of law that it did not constitute undue