Raynor v. Nims. have concluded that the insured had abandoned all intention of procuring farther insurance upon the property. The correspondence between the parties would not take the place of the consent required by the terms of the policy, and the policy of insurance issued by the plaintiff in error became absolutely void at once upon the obtaining of the additional insurance without consent. New York Central Insurance Co. v. Watson, 23 Mich. 486, and cases there cited. Under this view we do not consider it necessary to consider the other questions raised. The judgment must be reversed, with costs, and a new trial ordered. Judgment reversed. RAYNOR V. NIMS. (37 Mich. 34.) Exemplary damages — definition — when awarded. One who, in the exercise of what he erroneously supposed to be a legal right, causes injury to another, is liable to exemplary damages. A judge, after having specifically instructed a jury as to the proper items of actual damage in an action of trespass, instructed them that they might add "exemplary damages," without defining the term, except by saying that they were to take a broad common sense view of the circumstances, and determine what ought in justice to be allowed. Held, that this was a suffi cient definition. TRES TRESPASS for dispossessing the plaintiff under a writ of restitution under a judgment of foreclosure. Verdict for plaintiff. The opinion states the facts. Lucian Reed and D. & W. Johnson, for plaintiff in error. H. P. Henderson, for defendant in error. MARSTON, J. This was an action of trespass brought against Raynor for entering upon certain premises and forcibly removing Nims, his family and goods from the dwelling-house and premises in December, 1874. The only question raised relates to that part of the charge which Raynor v. Nims. instructs the jury "that in view of all the circumstances surrounding the commission of the trespass alleged, in case they found a verdict for the plaintiff, they might add to the actual, exemplary damages," without defining or explaining what exemplary damages were, and without submitting to the jury the question of malice at all, and in assuming that the defendant acted maliciously. They were instructed to take into consideration, in estimating such damages, the circumstances under which the plaintiff and his family were put out, the condition and size of his family, the season of the year, the state of the weather, and the extent of the malice and oppression on the part of the defendant, and the court, after calling their attention to other circumstances, added, "in short, you are to take a broad, common-sense view of all the circumstances, and determine, as near as you can, what amount in justice ought to be allowed." We think this was much clearer and better, much more practical and likely to be understood, than any abstract explanation or definition that could have been given. It was indeed a practical explanation, as applied to the case at bar, which clearly instructed the jury, and doubtless was of some real use to them in their deliberations. Did, then, the court have a right to assume that it was a case proper to be considered as calling for exemplary damages? It is said that it was not, because the defendant was acting upon his supposed legal rights, and under the advice of counsel, which would rebut any idea of malice on his part. It is admitted that the question whether the defendant had a right to the possession of the premises was fairly submitted to the jury and found against him. Where a party who is actually in the wrong, although believing otherwise, under advice, acts in an oppressive or cruel manner, his belief in his right so to do will not protect him. If a person claiming the right undertakes to, and actually does, forcibly turn a man and his family out of doors, under such circumstances and at such a season that they must suffer on account of the inclemency of the weather, when by delaying, a more mild and humane course, and one equally efficient, might have been adopted, he must be held responsible therefor in case it turns out he was in the wrong, no matter what he may have supposed his legal rights were. He acts at his peril, and a jury may well be instructed in such a case, that in case they find him a trespasser, Baugh v. Baugh. then, in estimating the damages sustained, they may take into consideration the unnecessary suffering occasioned, and under all the circumstances determine as near as they can what amount in justice ought to be allowed. Elliott v. Van Buren, 33 Mich. 56; Welch v. Ware, 32 id. 77, and cases cited. We are of opinion that the judgment should be affirmed with costs. Judgment affirmed. BAUGH V. BAUGH. (37 Mich. 59.) Divorce-who may set aside decree. A voidable judgment cannot be attacked by strangers to the record. Infant children of divorced parents cannot set aside the decree of divorce. BILL ILL to set aside a decree of divorce. The opinion states the facts. C. J. O'Flynn, for complainants. A decree obtained by fraud or collusion may be impeached even by strangers to it, if their preexisting rights are prejudiced. Freeman on Judgments, §§ 334, 335; Story's Eq. Pl., § 426. A wife to whom a divorce is granted has dower, and so has a subsequent wife. Com. L., § 4756. Property rights are not alone protected. Story's Eq. Pl., § 72; 2 Story's Eq. Jur., §§ 1352, 1353; 2 Bish. Mar. & Div., § 231; Harrison v. Southampton, 17 Eng. L. & Eq. 364; 21 id. 343. The public also have an interest. People v. Dawell, 25 Mich. 257; 2 Bish. Mar. & Div., §§ 230, 231. A decree may be summarily set aside. Allen v. Maclellan, 12 Penn. St. 328; 2 Bish. Mar. & Div., § 753. Theodore Romeyn and Romeyn & Weir, for defendants. CAMPBELL, J. A bill was filed by four infants of tender years by a next friend, to vacate a divorce granted to their mother, Margaret Baugh, against their father, John B. Baugh, and bringing in as co-defendants their father and mother and their father's second wife. The ground of interference is alleged collusion between their father and mother. Baugh v. Baugh. The bill is not sworn to. A demurrer was put in by the defendants John and Addie Baugh and the bill was dismissed. An appeal is brought to this court. The jurisdiction over divorce is purely statutory, and the legis lative authority has not seen fit to allow any but the parties to intervene in such suits. The husband and wife are the only persons recognized as parties. It is true that the interests of children are in some important respects more nearly affected by such proceedings than by those which merely concern rights of property. So far as maintenance is concerned it is certainly never permissible for children, whether infants or adults, to interfere with their parents in the use or disposal of their property; and considerations of that sort do not add any force to the other allegations. Their personal custody has been made dependent on the will of their parents subject to some oversight by the courts upon proper occasion. But no court in this country has any power to compel discordant husbands and wives to live together, and we do not perceive that any legal rights of these infants have been invaded, however much they may have been affected otherwise. It is for the legislature to determine to what extent public policy requires the power of intervention to be vested in any but the parties to divorce suits. There are certainly some reasons why it might be wise to have children represented, but whether their ultimate prosperity would be furthered by permitting strangers to intervene in their behalf between parents, is a question which would probably be considered very carefully before any action is taken to permit it. In the mean time the courts have no right to sanction any such intervention. It is expected of all divorce courts that they will be vigilant in examining the circumstances of all cases before them, and not allow any decree without a full scrutiny. The means furnished for this purpose are adequate for most cases. In the best circumstances justice will sometimes miscarry, but this is not peculiar to divorce cases, and it will not do to resort to unauthorized measures to redress legal misfortunes or wrongs. It would not be desirable, in order to get rid of some unjust judgments, to destroy the force of judgments generally, and allow them to be attacked by third parties where the legal rules which have been established to determine their effect have not permitted it. Where the judgment is only voidable and not void, it cannot be attacked Thorp v. Bateman. by strangers to the record. And where it is absolutely void it needs no proceedings to set it aside. In either case such a bill is inadmissible. We are constrained to say further that the bill before us, which is filed on behalf of very young infants by a person who seems to be a mere volunteer and does not make oath even on information and belief to the facts, and which upon the most vital facts of fraud is not put in issuable shape, and suppresses the names of the actors, is not such a pleading as is usually required where an attempt is made to disturb a judgment. It is not at all likely that any action which may be had in the direction of having infants represented will allow any one who chooses to assume to manage their interests. The decree must be affirmed, with costs. Decree affirmed. THORP V. BATEMAN. (37 Mich. 68.) Infant-implied contract to pay for support. The plaintiff received into his family the infant granddaughter of his wife, when very young, and he supported her for several years, under the agreement that she should live with him till of age. The grandmother having died, the father of the infant removed the infant from the plaintiff's family against his will. Held, that plaintiff could not maintain an action for the support of the child. A SSUMPSIT. The opinion states the facts. Stacy & Underwood and Walker & Weaver, for plaintiff in error, cited Sword v. Keith, 31 Mich. 247. The C. R. Miller and Edwin Hadley, for defendant in error. obligation of a father to support his minor child furnishes a consideration for either an express or an implied contract on his part, to pay for its support by another who has taken it at his request (Hunt v. Thompson, 3 Scam. 180; Owen v. White, 5 Port. 435; Varney v. Young, 11 Vt. 258); and if taken on an agreement which the father violates, he is liable on an implied promise to pay VOL. XXVI- 63 |