DUPONT V. HIGHWAY COMMISSIONEES OF HAMTRAMOK.

Eugene Dupont and others v. The Highway Commissioners of Hamtramck.

Highways: Return of commissioners: Notice: Proof of service. In proceedings to lay out a highway, the return of the highway commissioners, that they proceeded to lay out the road in question, "after due notice given according to law," is not sufficient proof of service of the statutory notice; in such proceedings jurisdictional facts must be distinctly shown. Highways:

Record: Defect: Amendment: Affidavit: Notice: Service. Whether or not such a defect in the proceedings could be cured by an affidavit subsequently made, of the facts, showing that notice was duly given by one of the commissioners, and that at the time of acting they had proof of that fact before them :-Quare?

Highways:

Defective record:

Amendments: Affidavit: Proof of service. But an affidavit of the fact of serving the notice, which does not show that any proof of the service was before them at the time of acting, and from which it appears, inferentially at least, that no proof thereof was made at the time other than the mere oral statement of the commissioner who made the service, will not cure the defect in the proceedings. Jurisdiction: Notices: Service: Oral statements:

Legal evidence. Jurisdiction to take from a private owner the possession of his lands can never be allowed to rest upon any such dangerous basis as a mere oral statement of the fact of service; and the fact that one of the commissioners had personal knowledge that the notice was given does not help the matter, as his oral statement could not be taken as proof by the others, nor would it be evidence to other persons interested, who are entitled to have the facts placed upon record.

Statutory notices : Process: Proof of service.

The statutory notice in these proceedings is in the nature of process, and it is indispensable that there be legal evidence that it has been given.

Heard and decided November 5.

Certiorari to Highway Commissioners of Hamtramck.

John W. McGrath and C. I. Walker, for plaintiffs in certiorari.

Chipman, Dewey & Hawes, for defendants in certiorari.
COOLEY, J.

This is a case of the laying out of a highway, and the proceedings are alleged to be void for various reasons, the most important of which is that they fail to show that the commissioners gave notice to the parties interested, as required by law.

DUPONT U. HIGHWAY COMMISSIONERS OF HAMTRAMOK.

The statute requires the commissioners, when applied to to lay out a highway, to issue a written notice, stating the object of the application, and appointing a time and place of meeting, which notice shall be served by the cominissioners, or one of them, on the owners or occupants of lands through which it is proposed to lay out the road, either personally or by copy left at the residence of each owner or occupant, at least ten days before the time fixed for meeting; and it makes further provision for the posting of notices to non-residents.-Comp. L., 1871, § 1253. And after the commissioners have determined to lay out the road, and passed upon all questions of damages for the appropriation of lands, they are to make return of their doings in writing, signed by them, which return must state their action in regard to the application, and shall be filed in the office of the township clerk, with the application, and a copy of the notice attached thereto.

The commissioners made and filed their return in this case, but the return does not show who are the parties through whose lands the proposed road is to run, nor does it set forth how notice was given, except by a general statement that they proceeded to lay out the road "after due notice given according to law." We have already decided that this is not sufficient.-People v. Highway Commissioners of Nankin, 14 Mich., 528. In cases of this nature, where public officers are proceeding summarily to deprive owners of their lands, jurisdictional facts must be distinctly shown, and are not to be made out by a general averment which amounts to no more than a statement that the law has been complied with. The record must show the facts, so that we may see whether the law was complied with or not.

The commissioners have endeavored to support their proceedings by an amendment, which consists in putting on file an affidavit made five months after their action was taken, showing that in fact notice was duly given by one of their number. Had the amendment shown that the

DUPONT v. HIGHWAY COMMISSIONERS OF

HAMTRAMOK.

commissioners, at the time of acting, had proof before them that the parties entitled to notice had received it, we might have been required to consider some of the questions discussed on the argument concerning the right to amend. But such is not the case here. On the contrary, the inference is irresistible that these commissioners had no proof before them in laying out the road which could give them jurisdiction to act at all, unless the mere oral statement of the person giving such notice could be regarded as proof. And it needs no argument or citation. of authorities to demonstrate that the jurisdiction to take from a private owner the possession of his lands can never be allowed to rest upon any such dangerous basis as what some one may have orally said concerning it. The notice is in the nature of process, and it is indispensable that there be legal evidence that it has been given. Admitting that the commissioners' return might be amended to supply proof of notice actually had, does not help a case like this, where no proof was had, and the commissioners attempt to make the proof for the first time after the case has been taken into the courts.

It can make no difference that one of the commissioners in this case had personal knowledge that the notices were given. His oral statement could not be proof to the others, and if it could, it would not be evidence to third persons, who are entitled, when such interests are involved, to have the facts placed upon record.

The proceedings must be quashed.

The other Justices concurred.

CONRAD V. BUTTON.

Joshua Conrad v. William Button and others.

Remedy: Administrators: Removal: Error. Proceedings before the probate court for the removal of an administrator are not according to the course of the common law; and their nature is not altered when the cause is removed by appeal to the circuit court; and a writ of error does not lie to review them. Submitted on briefs and decided November 5.

Error to Wayne Circuit.

B. T. Prentis, for plaintiff in error.

Moore & Griffin, for defendants in error.

PER CURIAM.

Conrad was removed from his office of administrator by the probate court, and he appealed from the order removing him, to the circuit court.

The case was there tried before a jury and the order of removal was affirmed. Exceptions were taken to the admission of evidence and to instructions given to the jury, and the administrator now asks us to review these various rulings on writ of error. On looking into the case we are satisfied that we have no jurisdiction in the case. The point, we think, is clearly settled against the jurisdiction. by Holbrook v. Cook, 5 Mich., 225.

The proceeding in the probate court to remove an administrator is not one according to the course of the common law, and its nature is not altered when it is removed into the circuit court by appeal. The inquiry is one of a peculiar and exceptional character and which ought to be conducted with all reasonable celerity, and the law does not contemplate that the settlement of estates shall be procrastinated and embarrassed by reviews of such matters on writ of error.

The writ should be dismissed.

WEISS v. WHITTEMORE.

John P. Weiss v. J. Henry Whittemore and another.

Libel: Declaration: Matter of inducement: Innuendo: Certainty. A declaration in an action of libel, for the publication of an article that does not mention the plaintiff by name, but refers only to the agent for the sale of the Steinway piano, who had also been previously agent for the sale of both that and the Knabe piano, which contains matter of inducement showing with reasonable certainty that plaintiff was such agent, and the proper innuendoes, is held not open to the objection on demurrer that it fails to show with sufficient certainty, that the article was published of and concerning the plaintiff with reference to his trade and business.

It would be unnecessary for the declaration to allege that no other person had been such agent, as no other person would be presumed, on demurrer, in the absence of any allegation to that effect, to have been such agent. A declaration is never required to negative every possible counter implication. Libel: Declaration: Damages: Agency: Salary. An allegation that the plaintiff had been and was engaged in the business of such agency, and had thereby acquired great gains and profits, and that he was, by the publication in question, greatly injured in his said trade and business, and has lost and been deprived of divers great gains and profits in his said business, which would, but for such publication, have arisen and accrued to him, etc., is not applicable to an agent on a salary, but imports an agency in which he derived a part of the profits or a commission on the sales, and sufficiently indicates the damages for which a recovery is sought.

Libel: Loss of trade: Declaration. The general allegation of the loss of trade is sufficient in ordinary cases of libel, without setting out the names of the customers driven away or lost; and it may be supported by evidence of such general loss.

Libel: Agency: Declaration: Loss of profits: Allegation of damages. Whether, where the dismissal from employment as agent is the special injury complained of, the words to be libelous must impute some charge or matter in relation to the plaintiff's business, trade or vocation, which if true would render him unworthy of employment:-Quare?

But where the substance of the alleged injury is that his income and profits from the business of an agency have been reduced by the libel complained of, it is enough to allege a false and malicious publication of language concerning him or his affairs which, as a necessary or natural and proximate consequence, occasions such pecuniary loss to him, and that such loss in fact resulted. Label: Declaration. Where the libel complained of is a statement in substance that the plaintiff, who is now the agent for the sale of the Steinway piano alone, but had formerly been the agent for the sale of both that and the Knabe piano, had in every instance while holding such double agency recommended the Knabe piano as the best, and advised his customers to buy that as being superior in every respect to the other and to all others, an allegation that the Knabe piano was not in fact the best is not essential.

Libel: Publication: Newspaper: Malice: When actionable per se. Such a publication by the agents for the sale of the Knabe piano, after the plaintiff had given it up, in a newspaper of wide circulation in the city where the plaintiff and defendants are both doing business, with the design of placing the plaintiff before the public, and before customers, in a false, ridiculous and discreditable attitude, and of diminishing his sales of the Steinway, and promoting