his "incarceration among felons," was in violation of his rights under section 14762, 3 Comp. Laws 1915. 15. WITNESSES - EVIDENCE ·ADMISSIBILITY RES ADJUDICATA CROSS-EXAMINATION-CREDIBILITY OF WITNESS. In an action for false imprisonment for contempt, the merits of the divorce case, out of which the contempt charge arose, was inadmissible except as affecting plaintiff's credibility, on cross-examination. Error to Kent; Collingwood, J., presiding. Submitted October 23, 1918. (Docket No. 22.) Decided December 27, 1918. Rehearing denied May 1, 1919. Case by Richard E. Oxford against Charles A. Berry and others for false imprisonment. Judgment for defendants on a directed verdict. Plaintiff brings error. Reversed as to defendant Berry, and affirmed as to other defendants. Broomfield & Worcester and Lombard & Hext, for appellant. H. Monroe Dunham and John M. Dunham, for appellees. STONE, J. This is an action on the case for damages for false imprisonment of plaintiff against the defendant Berry, sheriff of Kent county, defendant Griswold, deputy sheriff, and defendant Hyde, probation officer of said county. The following are some of the salient features of the case: The wife of the plaintiff had filed a bill against him for divorce in the circuit court for the county of Kent, in chancery, on June 17, 1914. On July 1, 1914, upon the petition of the wife, the court upon due hearing ordered the defendant therein (plaintiff here) to pay to the register of the court the sum of $15 per week in advance, the first payment to date from June 29, 1914, and a like sum of $15 on Monday of each week thereafter for her support, and the support of the minor children of said parties, during the pendency of the suit. Also that said Richard E. Oxford pay to the register of the court the further sum of $50 for complainant therein for the purpose of supplying her said children with necessary clothing and immediate supplies. Also that he pay to the register within 30 days from the date thereof, the further sum of $25 for solicitor's fees. On September 9, 1915, upon the sworn petition of the complainant therein, alleging that said Richard E. Oxford was in arrears on said order, in the sum of $256.50, and had violated said order, and had failed and neglected to pay said amount for such purposes, it was ordered by the court that a precept of attachment issue out of and under the seal of the court, directed to the sheriff of said county, commanding him forthwith to take the body of said Richard E. Oxford, and keep him in actual custody, and bring him forthwith before the court, and keep and detain him until it should make some further order in the premises, or until the defendant therein should be discharged according to law. Under date of September 11, 1915, appears the following order duly entitled in said cause, as a court order, and signed by Willis B. Perkins, the circuit judge: "In this cause a writ of attachment having been heretofore issued out of and under the seal of this court against the defendant, Richard E. Oxford, for his misconduct and contempt in violation of the order for payment of alimony, heretofore issued in this cause, which writ of attachment was directed to the sheriff of the county and was returnable forthwith, and the sheriff having returned that he had attached the said Richard E. Oxford and taken his body, and had him in custody before the court, on the said 11th day of September, A. D. 1915, and the said Richard E. Oxford having been personally before the court by virtue of said attachment on the said 11th day of Sep tember, A. D. 1915, and it appearing to the court, after having heard the answer of the said defendant, Richard E. Oxford, that the said Richard E. Oxford is guilty of, and has committed the misconduct and contempt charged: It is ordered and adjudged that the said Richard E. Oxford is guilty of the said misconduct and contempt alleged, and that the said misconduct and contempt was calculated to, and did, injure and impair and prejudice the rights and equities of the complainant in this cause, and it is therefore ordered that the said Richard E. Oxford be, and he hereby is, ordered to stand committed to the charge and custody of Joseph E. Hyde, probation officer of this court, and to remain charged with such contempt until all sums of money due and unpaid on the order for alimony, heretofore referred to, be fully paid and satisfied, or until the further order of this court." After this order of September 11, 1915, no further order of the court appears to have been made in said cause, and the plaintiff herein was treated as on probation, under the charge and supervision of defendant Hyde, as probation officer. Said probation officer permitted this plaintiff to return to his home in Big Rapids, and he was visited there by the said probation officer. Act No. 239, Pub. Acts 1913 (3 Comp. Laws 1915, § 11449), being entitled "An act to authorize courts of record to place parties found guilty of contempt of court for failure to pay alimony, temporary or permanent, on probation in divorce and separate maintenance cases," -is discussed by counsel. It may be said in passing that there is no claim that plaintiff was ever sentenced for contempt of court, or that any commitment for contempt has ever been issued against him. Later, and on the 22d of November, 1915 (the plaintiff herein being still in arrears in the payment of alimony), upon the verbal request and report of the defendant Hyde, Judge Perkins signed and deliv ered to said defendant a paper called in this record a "bench warrant" in the words and figures following: "STATE OF MICHIGAN, "COUNTY OF KENT, } SS. "The Circuit Court for the County of Kent, "Greeting. "To the Sheriff of said County: "In the name of the people of the State of Michigan: You are hereby commanded to arrest the body of Richard E. Oxford, and bring him forthwith before the circuit court for the county of Kent, to answer unto an information filed against him in behalf of said people by the prosecuting attorney of the county of Kent, aforesaid, for the crime of contempt of court, failure to pay alimony. "Given under my hand and the seal of said court, at the city of Grand Rapids, this 22d day of November, A. D. 1915. 66 "WILLIS B. PERKINS, "Prosecuting Attorney." Concerning this bench warrant defendant Hyde testified, on cross-examination, as follows: "I caused the bench warrant (defendant's exhibit 10) of November 22d to be issued. I did not file any affidavit with Judge Perkins before it was issued, and did not after either of these bench warrants. After the clerk made it out, I took it up to Judge Perkins and asked him to sign it, and he did. I read it when it was made out in the clerk's office. I read what was there. Don't know whether Judge Perkins read it before he signed it or not. He looked at it; he didn't read it aloud. * * "Q. Well, you know what an information is, speaking of the criminal law, do you not? "A. Yes, sir. "Q. Yes. And you know what a crime is, speaking of criminal law, do you not? "A. Yes, sir. "Q. You knew who the prosecuting attorney was at that time, did you not? "A. Yes, sir. "Q. Did you ever present this document to the prosecuting attorney of Kent county? "A. No, sir. "Q. The prosecuting attorney had not filed any information against Mr. Oxford, had he? "A. No, sir. "Q. You knew that at the time you presented this to Judge Perkins, did you not? "A. Sure. "Q. Yes, and you knew that Mr. Oxford had not committed any crime, didn't you? "A. No, he had not committed any crime. * * I knew that no affidavit had been filed with Judge Perkins as the basis for the issuance of that bench warrant. When I saw Mr. Oxford in jail in Novem'ber, 1915, he was in the big cage upstairs. They keep persons convicted of and charged with felonies and misdemeanors in that cage. I couldn't tell you how many were there at the time I saw him. "Q. Well, would you say there was one, or twenty? "A. Well, I would say there was one, but I would not say there were twenty. "Q. You would say there were more than one, and less than twenty, would you? "A. Yes, sir; easy. I talked with him there just a few minutes at that time. After Judge Perkins signed it, I took the bench warrant of November 22d to the sheriff's office and presented it to Mr. Gibbs, the chief deputy, and asked him to see that it was served. I didn't tell the clerk, that I remember of, what to put in the bench warrant when he made it out. He wanted to know what it was and I told him it was a bench warrant for Richard E. Oxford, contempt of court, failure to pay alimony, and he made that part out in accordance with my instructions. The written part was dictated by me." The plaintiff herein was arrested in Big Rapids on November 22, 1915, on the said bench warrant by the defendant Griswold, and brought to Grand Rapids. Referring to the bench warrant of November 22d, defendant Griswold, on cross-examination, testified: "This is the only document I had in my possession when I went to Big Rapids at that time and took Mr. |