ent dismissed the attachment proceedings, and relator applied for mandamus to vacate the order of dismissal.

Smiley, Smith & Stevens, for relator.

Butterfield & Keeney, for respondent.

PER CURIAM. The writ is denied. The case falls within the rule laid down in Van Norman v. Circuit Judge, 45 Mich. 204, it appearing that there is no estoppel.

THE PEOPLE V. JOHN DUNCAN.

Criminal law-Examination of respondent-Jurisdiction of magistrate.

1. A justice of the peace has no power to transfer the examination of a respondent, brought before him upon a warrant issued by him, to another justice of the peace, upon an affidavit that the first-named justice is a material witness for the respondent upon such examination.

2. Such attempted transfer does not oust the justice who issued the warrant of jurisdiction, or confer jurisdiction upon the other justice, and the prisoner should be taken before the firstnamed justice, who should proceed with the examination.

Certiorari to inquire into the right to detain the petitioner under a justice's commitment to await his trial for rape. Argued November 21, 1893. Examination ordered before the magistrate who issued the warrant, November 28, 1893.

The petitioner was arrested upon a warrant charging him with the crime of rape, and, on being brought before the justice of the peace who issued the warrant, made an affi

davit that the justice was a material witness in his behalf. The justice transferred the complaint and warrant to another justice of the peace, before whom the petitioner was taken, and he proceeded with the examination, and held the petitioner for trial at the circuit, and, in default of bail, committed him to the county jail to await such trial.

Farley & Aitkin, for petitioner.

w.

W. A. Mills, Prosecuting Attorney, for the people.

PER CURIAM. Where, upon an affidavit made by the accused that the examining magistrate is a material witness for the prisoner, he is taken before another magistrate for examination by direction of the first magistrate, such action is illegal, and the justice who issued the warrant does not lose, nor does the other magistrate acquire,, jurisdiction of the case; and the prisoner should be taken before the magistrate who issued the warrant, and he should proceed with the examination.

GEORGE P. FELCHER V. HENRY N. BREVOORT, CIRCUIT
JUDGE OF WAYNE COUNTY.

Appeal-bond-Sufficiency of sureties-Mandamus.

There is no occasion for interfering by mandamus with the discretion of a circuit judge in ordering a defendant, who has appealed from a judgment in summary proceedings to recover the possession of land, to file an additional appeal-bond, where the appellant could have filed a new bond, or made a showing before the circuit court of the sufficiency of the sureties in the original bond.

97 633

100 341

97 633

103 494

Mandamus. Order to show cause denied December 12,

1893.

Relator appealed from a judgment in summary proceedings to recover the possession of land, and, on motion of the appellees, was ordered by the respondent to file an additional appeal-bond because of the insufficiency of the sureties in the original bond. Relator objected, on the ground of the alleged insufficiency of the affidavit filed in support of the motion, and applied for a mandamus to vacate the order.

T. E. Tarsney, for relator.

There

PER CURIAM. An order to show cause is denied. is no occasion for interfering with the discretion of the circuit judge by the discretionary writ of mandamus where relator could have filed a new bond, or made a showing of the sufficiency of the sureties before the circuit court.

ROBERT R. TURNER V. THE MUSKEGON MACHINE & FOUNDRY COMPANY.

[See 97 Mich. 166.]

Costs-Copy of stenographer's minutes.

Under 3 How. Stat. § 6534b4, which makes it the duty of the stenographer of the fourteenth judicial circuit to furnish a transcript of the testimony taken on the trial when desired by the counsel for either party for the purpose of removing the case to the Supreme Court, and provides that the sum paid for such testimony may be taxed as a part of the costs,

a party who procures daily copies of the testimony, in contemplation of its use in settling a bill of exceptions, and who uses it for that purpose, and also for the purposes of the trial, may tax the sum paid therefor as a part of his costs, if he prevails in the Supreme Court.

Motion by plaintiff for retaxation of costs. December 12, 1893. Denied December 13, 1893.

Argued

Act No. 214, Laws of 1887 (3 How. Stat. § 653464), makes it the duty of the official stenographer of the fourteenth judicial circuit, in case the counsel for either party desires a transcript of the whole or a part of the testimony or proceedings in a suit for the purpose of moving for a new trial or for removing the cause to the Supreme Court, to furnish the same within a reasonable time, for which he is entitled to receive 10 cents per folio, and the sum so paid is to be taxed as a part of the costs. During the trial of this case, the defendant procured a daily copy of the testimony, in contemplation of its use in settling a bill of exceptions, and used it for that purpose and for the purposes of the trial, and the amount paid for the same was taxed as a part of defendant's costs in the Supreme Court.

De Long & O'Hara, for the motion.

Smith, Nims, Hoyt & Erwin, contra.

PER CURIAM. In the fourteenth judicial circuit, the cost of the stenographer's record of the proceedings of the trial, procured during the trial in contemplation of use in settling a bill of exceptions, may, if subsequently used for such purpose, be taxed. This motion is within the rule laid down in Re Estate of Mabel Ward, decided February 5, 1889, and not reported.

STEPHEN MOYLE V. NORMAN W. HAIRE, PRESIDING AS CIRCUIT JUDGE OF HOUGHTON COUNTY.

Capias ad respondendum-Sufficiency of affidavit.

Mandamus will not lie to vacate an order quashing a writ of capias ad respondendum on the ground of the insufficiency of the affidavit, where the allegations of fraud in the affidavit are hearsay.

Mandamus.

cember 13, 1893.

Argued December 12, 1893. Denied De

Relator sued out a writ of capias ad respondendum from respondent's court, upon an affidavit in which he averred that, desiring to remit a sum of money to England, he applied to the defendant, who was postmaster at Calumet, Michigan, for a post-office money order for the desired. amount, and was informed that defendant could not sell one for that sum, but could sell a bill of exchange, payable in London, England, for the desired amount; that, in answer to relator's inquiry if there was any difference in sureness and safety between the two modes of sending the money, the defendant assured relator that there was none; that, in reliance upon such representations and statements, relator purchased the bill of exchange, and paid the defendant therefor, and forwarded it to England; that, upon its presentation at the bank upon which it was drawn, payment was refused, for the reason that the defendant had no money to his credit at said bank; that the bill of exchange was returned to relator, and presented to the defendant, who refused to refund the money paid therefor; that relator afterwards, and for the first time, learned that the practice pursued by the defendant in selling foreign bills of exchange was, on receiving the money, to request