not be liable, although, as a matter of fact, the plaintiff was in the streets for a legal purpose." In order to better understand the force and effect of this charge, it will be necessary to consider the evidence to some extent that the court permitted the defendant to introduce. While the plaintiff was on the stand as a witness in her direct case, the counsel for the defendant was permitted, under objection of plaintiff's counsel, to ask her: "Your husband had you arrested the other day for assault and battery?" It appears that this arrest was made after the time the assault was claimed to have been made in the present case, and the witness testified that she had never been arrested in her life, until the time when the defendant arrested her. In answer to the question propounded, she stated that her husband did cause her arrest for assault and battery. Witness was further asked if, upon one occasion, Officers Warren and Verberg did not call upon her one night, and find her in bed with one Charles Vose. Plaintiff denied this, and claimed that she had a room there, and worked for Charles Vose, and his father and mother, in their restaurant.

It appears that, several years before this arrest, plaintiff's husband had been arrested, and convicted and sent to state prison for some offense, but had recently returned. The plaintiff and he were then living together. The defendant, while on the stand as a witness, was permitted to testify that about a year previous he and another policeman visited the Gale Block, in which was the Vose restaurant, and there knocked on the door; that Mr. Vose came to the door, and, being asked who was in there with him, answered that it was his wife; that he had also seen the plaintiff a great many times on the street at from 10 to 12 o'clock, and that she did not seem to be doing any business, but just walking the street.

provide that policemen shall have authority to arrest, without warrant, all persons who shall, in their presence, be guilty of any offense, misdemeanor or breach of the peace, or who shall, in their presence, be guilty of any disorderly conduct, for punishment of which a warrant could lawfully issue. Disorderly conduct for which an arrest might be made without a warrant, if committed in the presence of the officer, would include what is commonly termed 'street walking.' That is the offense of a common prostitute offering herself for sale upon the streets at unusual or unreasonable hours, endeavoring to induce men to follow her for the purpose of prostitution; and, in case such an offense is committed in the presence of an officer, a policeman has not only the authority, but it is also made his duty, to arrest the person so offending. So, in order to determine whether the defendant had the right to make the arrest complained of in this case it will be necessary for you to inquire and determine whether the plaintiff was at the time of the arrest engaged in the commission of any offense, or whether the defendant had any reasonable ground for believing she was. If you should find that at the time she was arrested by defendant she was conducting herself in an orderly manner, not committing any breach of the peace, or disorderly conduct or offense against the law, and that the defendant had no reason to believe she was, then the defendant had no right or authority to arrest her, and the plaintiff would be entitled to a verdict; and in such case it makes no difference what her past history may have been, nor what her character was, so far as any justification of the defendant was concerned. But if you find, from the evidence in the case, that at the time of the arrest the plaintiff was a woman of unchaste character, and was upon the street engaged in street walking, that is, if she was upon the street for the purpose of attracting attention and inducing men to follow her for purposes of prostitution, then the plaintiff is not entitled to recover, unless you find that defendant used unnecessary force and violence in making the arrest. Or if you find, from the evidence, that the plaintiff was at the time of her arrest by the defendant an unchaste woman, and known by the defendant to be so; and if you also find that Mr. Miller was then called by the defendant, she had at that time the reputation of being a and testified that plaintiff had rooms there; that common prostitute, whether that reputation he served papers to get Vose out, but was not was deserved or undeserved, and that this rep-acquainted with the reputation of the plaintiff utation was known to defendant; and if you further find that she was at that time upon the public street, at such an hour and under such circumstances; if her conduct was such that the defendant had reason to believe that she was engaged in street walking,-then, whether she was so engaged in street walking or not, the defendant would be justified in making the arrest, and, unless you find that he used unnecessary force and violence in making the arrest, your verdict should be for the defendant. The question, as I have already indicated to you, is not altogether whether the plaintiff was already engaged in street walking, but whether the defendant had reasonable ground to believe she was, and made the arrest upon such ground. If he had reasonable ground to believe that she was engaged in street walking, and made the arrest on such ground, then defendant would

Plaintiff was recalled by the defense, and testified that she was never put out of the Gale Block in consequence of living with Mr. Vose; that he did not live there with her; that he had a room there, and she had a room, and a good many others had rooms there; that Mr. Miller, the janitor of the building, never told her to move out in consequence of the manner in which she conducted herself.

at that time; that he saw a man in there one night, but could not see if there was anything wrong; that it might have been Mr. Vose, as he told him they were going to be married in about a week. Witness testified that he saw men go into the big hall door, but could not say whether the room where they went was occupied by her.

Mr. Warren was also called, and testified to seeing plaintiff in bed with Vose. Other testimony of like character was also given by defendant, under objection of counsel for the plaintiff. Defendant also gave evidence of the general reputation of the plaintiff as a common prostitute. Plaintiff denied all the specific acts of lewdness to prove which such witnesses were called.

At the close of the testimony the counsel for plaintiff asked the court to instruct the

on the street plying her vocation as a common prostitute, as he did when he made the arrest; and yet he turned away to leave, and only made the arrest when she dared him to make it.

of enforcing the law for the public good. The officer had no right to arrest the plaintiff without warrant upon mere suspicion that she was upon the street for the purpose of plying her vocation as a common prostitute, even under the provisions of the city ordinance above cited. Our Statute gives no such right, and at the common law no such right existed. Suspicion that a party has on a former occasion committed a misdemeanor is no justification for giving him in charge of a constable without a justice's warrant; and there is no distinction in this respect, between one kind of misdemeanor and another. 1 Archb. Crim. Pr. and Pl. p. 103, note 1; 2 Hale, P. C. 89.

If persons can be restrained of their liberty, and assaulted and imprisoned, under such circumstances, without complaint or warrant, then there is no limit to the power of a police officer. Personal liberty, which is guaranteed to every citizen under our Constitution and laws, consists of the right of locomotion,-to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens there they will be protected under the law, not only in their persons, but in their safe conduct. The Constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands of even the conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees. These are rights which existed long before our Constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land. Whatever the charter and ordinances of the City of Kalamazoo may provide, no police officer or other conservator of the peace can constitutionally be clothed with such power as was attempted to be exercised here. No disorderly conduct; no breach of the peace, committed in presence of the officer; no suspicion of felony, -and yet under the charge of the court which counsel seek to maintain here, a woman may, simply upon suspicion that she may commit an act which at most would only amount to a misdemeanor, be assaulted and imprisoned, if the officer has good reason to believe, and does believe, that she is plying her vocation in such a manner that it will result in an offense. No more dangerous doctrine could be laid down. It is a doctrine which, if upheld, would place even the most respectable lady in the land under the surveillance of policemen, and give them authority to arrest and imprison upon mere suspicion of an offense, however insignificant; and, if carried to the extent contained in the charge of the circuit judge, it would not matter how undeserved the bad character or reputation of such person might be. If idle gossip is once set afloat, reflecting upon the character and reputation of the most virtuous George GARTNER, Circuit Judge, Respt. woman, and that gossip once comes to the ears of the police officer, he may act upon it, and be

An arrest for misdemeanor, without a warrant, by one who does not see the offense committed, is illegal.

In People v. Pratt, 22 Hun, 300, it was held that an officer had no authority to arrest, without warrant, a common prostitute, unless disorderly conduct is committed in his presence. It is true that an officer, as a conservator of the peace, may arrest street walkers or common prostitutes who are on the street plying their vocation; but a mere suspicion that they are doing so, where there is no act indicating that the party is there for that purpose, will not justify the arrest without warrant.

In Re Way, 41 Mich. 304, Mr. Justice Campbell, speaking upon the subject of arrest without warrant, says: "It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases where the public security requires it, and this has only been recognized in felony, and in breaches of the peace committed in presence of the officer. Quinn v. Heisel, 40 Mich. 576, and Drennan v. People, 10 Mich. 169."

The court was in error in that portion of its charge relative to the defendant's acting upon his information and belief that the plaintiff was a common prostitute, as a justification for the arrest without warrant. The court was also in error in refusing to give the plaintiff's requests to charge. Each request stated the law correctly as applied to this case, and should have been given. The court was also in error in permitting defendant to introduce evidence of specific acts of lewdness on the part of plaintiff. On such a trial, it could not be expected that a party so attacked could be prepared to meet every issue so made.

The judgment must be set aside, with costs, and a new trial ordered.

Campbell, Champlin and Morse, JJ., concurred with Long, J.

Joseph H. COFRODE et al., Relators,

v.

(......Mich.......)

diction of the courts of the State in which was the place of performance, although the parties are residents of other States.

led to believe that the woman is upon the street 1. An action on contract is within the jurisintending to ply her vocation as a street walker or common prostitute, and at once, without the formality of complaint or warrant, place her under arrest and convey her to jail. The law has more regard for the liberty of the citizen, and there is a more decent and orderly manner

2.

Consent of the parties is sufficient to give jurisdiction over them to a court which has jurisdiction of the subject matter.

3. Filing a declaration on the part of the | p. 491; Barrell v. Benjamin, supra; Davis_v. plaintiff, and appearance and pleading on the Pierse, 7 Minn. 13; Morgan v. Neville, 74 Pa. part of defendants, is a sufficient waiver of pro- | 52; Story, Conf. L. § 542; Wharton, Conf. L. cess, although the parties are nonresidents. $ 705; Miller v. Black and Great Western R. Co. v. Miller, supra; Gardner v. Thomas, 14 Johns. 134.

PETITION for a writ of mandamus to com- Mass. 354; Roberts v. Dunsmuir, 75′ Cal. 203.

The facts are fully stated in the opinions. Messrs. Ashley Pond, W. L. Carpen-ard. On December 16, 1889, defendants apter and John Atkinson, for relators:

jurisdiction of the said alleged cause. (2) That the consent of parties and their attorneys does not and cannot confer jurisdiction upon said court, inasmuch as all parties, both the alleged plaintiffs and the alleged defendants are nonrescan be conferred by consent of parties and attorneys, it does not become obligatory upon the court to entertain jurisdiction, but whether the same shall be entertained or not by the court is a matter which rests in the sound discretion of the court; and that public conven

vate convenience of the parties. (4) That it is apparent from the facts set out that the said alleged suit is brought into the Circuit Court for the County of Wayne for the convenience of the parties and their attorneys only."

I shall consider these reasons in the order named by the circuit judge.

First, as to the jurisdiction of the circuit court. The several circuit courts in this State are courts of general jurisdiction. The cause of action stated in the declaration is transitory. It is action of assumpsit, arising out of a contract claimed to have been performed in this State; and the Circuit Court for the County of Wayne has cognizance of suits upon contracts like the one sued upon irrespective of the locality of their origin, provided the parties, by service of process or otherwise, are before the court. Thompson v. Michigan Mut. Ben. Asso. 52 Mich. 522.

striking the case from the docket. In show-lows: "(1) That the said circuit court has no ing cause why the mandamus should not be granted, Judge Gartner sets out the opinion rendered by him at the time he ordered the case struck from the docket, as follows: "Upon the application made for a struck jury, it was made to appear that the plaintiffs were residents of this State. (3) That, if jurisdiction idents of and do business in the City of Philadelphia, and the defendants in the City of New York. The subject matter of the controversy arose and is located in the upper peninsula of this State. This is shown in the affidavit of counsel, wherein it is stated: 'Affiant further says that all the parties to this suit are nonres-ience and interest are paramount to the priidents of this State; . . . that the transaction involved in this suit arose in the upper peninsula of Michigan. It appears that the declaration was filed December 7, 1889, and the plea December 16 following. No process ever issued out of this court in said matter, nor was service had, and it is apparent that this forum wherein to litigate and determine this controversy is by consent of counsel, and selected for convenience.' This suit involves a large amount of money, the claim in the declaration being $1,000,000; and several weeks will have to be consumed in the trial thereof, involving the county in expense of thousands of dollars, and in a matter wherein the county has no interest, either in the parties or the subject matter. It certainly does not seem right that the people of this county should be made to bear the burden of expense of determining controversies between foreign litigants. The docket of this court is crowded, and we have more Were the parties properly before the court? than we can do in determining matters where- The suit was not commenced by either of the in the jurisdiction of the court is undoubted. two methods authorized by § 7291, How. Stat. This case has no business here, and an order The petition asserts that the suit was comwill be entered striking it from the docket." menced by the filing of the declaration (and a He further states as follows: "That on in- copy is attached to the petition). In so doing formation and belief this respondent states the the plaintiffs submitted themselves to the jufact to be that the relators were not obliged to risdiction of the court, as a party to the record come into this State to prosecute their right of (People v. McCaffrey, 75 Mich. 115), and the deaction against said defendants. Neither did fendants, by appearing and pleading to the they casually find them, or any of them, in this declaration, voluntarily submitted themselves State, nor was the appearance or plea en-likewise to the jurisdiction of the court. While tered by the said defendants, or any of them, in obedience to any process issued out of said circuit court, nor in obedience to any notice of rule to plead indorsed upon a copy of the declaration filed in said circuit court at commencement of suit, . but said declaration and plea were filed, and said appearance was entered, in accordance with the previous stipulation of the parties."

He further alleges that there are 922 cases upon the docket, of which 713 are for trial by jury at the present term, exclusive of criminal cases; that the circuit court is overcrowded with business, and that the disposition of causes in said circuit court is delayed because of the crowded state of its docket; that the trial of the alleged cause would consume at least a month of the time of the judges and jury, and in that way would seriously interfere with the disposition of the legitimate business of the court, besides entailing upon the County of Wayne an expense of many thousands of dollars; and that he made the order complained of because he deemed the same in the interest of the administration of public justice, and of the public welfare. He summarizes his reasons for striking the cause from the docket as fol

it is true that no consent of parties can give a court jurisdiction of the subject matter of a suit which the court did not possess without such consent, it is equally true that a court can obtain jurisdiction over the person by the consent of such person; and service of process is always treated as waived by a general appearance in the cause, and pleading to the merits. And this is so although the defendant is a nonresident, and suable only in a particular place. Thompson v. Michigan Mut. Ben. Asso. supra.

There is no claim or pretense that this is a fictitious suit, or that it is not brought in good faith, to determine a genuine controversy of vital interest to the parties concerned. Section 7547 of Howell's Statutes enacts that issues of fact in actions upon contracts shall be tried in the county where one of the parties shall reside at the commencement of suit, unless, for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial, the court shall deem it necessary to order such issues to be tried in some other designated county. This provision, however, applies only to residents.

We held in Atkins v. Borstler, 46 Mich. 553, that the Statute does not apply to nonresident