I took it as Drew presented it to me, and remodeled the articles and reframed it, and the first paragraph read, I think, just as it is now before it was given to me. Just what parts I prepared I do not know. I know I prepared parts of it. I could not give the date of its completion; in fact, I do not think I ever did complete it. I undertook to prepare it as he wanted it, or so it would meet the approval of Mr. Cheney, and he never did approve it. I submitted it to him several times, and there was always some objection to it, and I would word it again at odd times, and kept on and kept it in my possession for some little time. This was before the sale June 3, 1908, and then the negotiations seemed to drop, and I never prepared it to Cheney's satisfaction, and he never approved it at all, and, as I recollect, it was never authorized by the directors of the company. It is not true that the Cheney Lumber Company was acting under this contract when it took over the brake from the Bankers' Trust Company. Mr. Cheney and Mr. Drew had arranged, prior to the organization of the Cheney Company, with an appeal which I had pending for the bankrupt company in the United States circuit court of appeals for the sale of that property; that the same should be discontinued, so that the trustee himself should sell the property at the trustee's sale; and that the lumber company would buy it in through the assistance of the Bankers' Trust Company, just as was done; and afterwards the question was again taken up regarding the contract between the Cypress Pine Lumber Company and the Cheney Company after the sale in June, and it was not confirmed until July, and after that it again came up, and Mr. Cheney absolutely refused to enter into any agreement of that kind; and another instance I remember is that Mr. Cheney and Mr. Drew came from Erie, where a meeting had been held of some of the stockholders, where all knew he and Drew had come together, and they had had some sort of a row because Cheney had refused to sign a certain statement, or would not sign it.

"The Court: Then you know their minds never met on that?

"A. Because I was trying to prepare a document, which gives to me a certain case, as I saw it, only I

could not get it as they wanted it. I don't think they themselves knew how they wanted it; I know that."

After hearing this testimony, the trial court, who saw and heard the witnesses and who considered the testimony of Scholars persuasive, made the following finding of fact:

"The Cheney Lumber Company, Limited, never agreed to the contract alleged by the complainants, the provisions of which appear in the written draft of April 17, 1907, as it is clear that the minds of the parties never met, and is not obliged to account to the complainants, as prayed for in the bill of complaint."

The court also determined that the loans of the First National Bank to the Cheney Lumber Company, aggregating the principal sum of $90,000, and the mortgage loan of the Security Trust Company to the Cheney Lumber Company, were made in good faith.

A careful reading of the record satisfies us that the court was justified, under the evidence, in coming to this conclusion, and his determination will therefore not be disturbed.

The decree is affirmed, with costs.

STEERE, C. J., and MOORE, BRCOKE, STONE, OSTRANDER, and BIRD, JJ., concurred. MCALVAY, J., did not sit.

SOULE v. OTTAWA CIRCUIT JUDGE.

1. ARREST-CAPIAS AD RESPONDENDUM-AFFIDAVIT.

Before the writ of capias will be allowed and a party held to bail, the plaintiff must comply strictly with the requirements of the statute.

2. SAME-SUFFICIENCY.

It was insufficient to present an affidavit of the plaintiff setting up in detail the mailing and receipt of certain libelous letters addressed to residents of the county in which plaintiff was a candidate for office, where the affidavit did not aver that plaintiff had ever seen the letters or that he was present and saw them received or mailed.

Mandamus by Charles E. Soule against Orien S. Cross, judge of the circuit court for the county of Ottawa to vacate an order refusing to quash a writ of capias. Submitted January 28, 1913. (Calendar No. 25,372.) Writ granted April 8, 1913.

Corie C. Coburn, for relator.

Diekema, Kollen & Ten Cate (Walter I. Lillie, of counsel), for respondent.

MOORE, J. This proceeding was commenced by writ of capias. The relator was held to bail in the sum of $10,000. He gave appearance bail and moved to quash the writ for various reasons. It was stipulated in the case as follows, omitting the formal part:

"That the motion to quash, set for hearing upon the 25th day of July, 1912, be heard on the 5th day of August, 1912, at 2 o'clock, or as soon thereafter as counsel can be heard, and that all proceedings be stayed in said matter until said motion has been disposed of."

The motion to quash was overruled, and this is a mandamus proceeding to review that action.

It will not be necessary to refer to all the reasons given by relator in his application to have the writ of capias quashed. The sixth reason assigned is:

"The affidavit does not aver in terms that the facts and circumstances enumerated in said affidavit are within the personal knowledge of affiant."

The seventh reason assigned is:

"And as to those facts which affiant swears to positively, said affidavit shows from its very nature that they are not necessarily in the affiant's personal knowledge, but are of such a nature that affiant does not of his own knowledge know the facts enumerated in said affidavit, but is dependent for his information in regard thereto upon the advice and information of others, and he has not attached to his affidavit the affidavits of those who have personal knowledge of the facts complained of."

The affidavit was a very long one. It charged, in substance, that one Kirby had a cause of action growing out of the writing and mailing, by the relator, of four certain letters, copies of which are set out in full in the affidavit.

The following is contained in the affidavit:

"And that each and every one of said letters were sent through the United States mail from Grand Haven, Mich., to each of said parties at the places directed, and each of said parties received said false, malicious, and slanderous and libelous letters through the United States mail at the several places above mentioned as aforesaid, each of which places is located in the county of Ottawa and State of Michigan for the purpose of injuring affiant in his good name, fame, and credit, and, among other things, the false, slanderous and malicious, defamatory, slanderous, and libelous matter of and concerning the affiant, and of and concerning his aforesaid office as probate judge, and of and concerning affiant's conduct in said office of probate judge, for the purpose of injuring the good name, fame, and credit of affiant and defeating the affiant at the primary election on the 27th day of August, 1912, aforesaid."

There is no statement in the affidavit that affiant ever saw the letters or had them in his possession, or that he saw the letters written or mailed, or that he was present and saw the recipients receive them. The originals were not attached; nor were any affidavits of the recipients of the letters attached. It is clear that the affiant failed to establish, except by hearsay, the mailing and receipt of these letters.

The writ of capias is an extraordinary one; and, before it will be allowed and a party held to bail, there must be a compliance with the well-settled rules of law.

Counsel for respondent says in his brief:

"There is but one question to be decided in this case, and that is, Should the motion to quash have been granted and the sureties on the bond discharged?"

The question involved is not new in this State. In Sheridan v. Briggs, 53 Mich. 569 (19 N. W. 189), the following language is used:

"An affidavit for a capias ad respondendum, or for any writ that will deprive one of his liberty, must set forth in detail the facts and circumstances on which it rests, and not merely inferences and conclusions from such facts; and the facts must be within deponent's personal knowledge."

See, also, Stensrud v. Delamater, 56 Mich. 144 (22 N. W. 272); Pease v. Pendell, 57 Mich. 315 (23 N. W. 827); Shaw v. Ashford, 110 Mich. 534 (68 N. W. 281); Graham v. Cass Circuit Judge, 108 Mich. 425 (66 N. W. 348); Church v. Calhoun Circuit Judge, 129 Mich. 126 (88 N. W. 403); McCrea v. Muskegon Circuit Judge, 100 Mich. 375 (58 N. W. 1118); Robinson v. Branch Circuit Judge, 142 Mich. 70 (105 N. W. 25); Conrad v. Van Buren Circuit Judge, 144 Mich. 492 (108 N. W. 347); Gardiner v. Wayne Circuit Judge, 155 Mich. 414 (119 N. W. 432); Martin

175 MICH.-9.