ant's explanations are materially impeached, the case set forth by complainant is in part disproved, and in what remains is very much weakened. The actual transaction is left without. any other direct explanation than is furnished by the papers and the account given by Brown and others as to what occurred when they were made; and the complainant is necessarily compelled to rely on the acknowledged incidents. and on such other circumstantial indications as the case affords. And one considerable difficulty is that several matters are of equivocal import, and may be as well accounted for on one theory as another. For example, the parties were evidently bent on misleading complainant's relatives in respect to the extent and true nature of their dealing, and their course and pretences in furtherance of this design may be as well credited to defendant's theory as to that of complainant.

In applying this jurisdiction it is needful to proceed with great circumspection. The natural and prima facie effect of a conveyance expressing no condition, and regularly executed in the presence of attesting witnesses and duly acknowledged as an absolute deed, ought not to be controlled and qualified by oral evidence, and brought down to the effect due to a mere security, on a slight showing. The great current of authority is distinct in holding that the party thus seeking to modify the operation of the instrument and prove himself entitled against the terms of his own deed to an equity of redemption is not only bound to make out that the transaction was in truth and justice nothing more than the giving of security, but is required to do so by a force of evidence sufficient to command the unhesitating assent of every reasonable mind. Unless the testimony, say the Supreme Court of the United States, is entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. Ilowland v. Blake, supra. And many cases use much stronger language. Bingham v. Thompson 4 Nev. 224; Zuver v. Lyons 40 Iowa 510; Schade v. Bessinger 3 Neb. 140; Stall v. City of Cincinnati 16 Ohio St. 169; Haynes v. Swann 6 Heisk. 560; Campbell v. Dearborn 109 Mass. 130. A very full reference to the

authorities will be found in 1 Jones on Mortgages, ch. 8 (2d ed.).

Another point worthy of attention may be noticed here. The complainant is confined to the ground of action on which he has founded his case. He is not permitted to say now that he misstated the transaction and that he admits that he meant to convey the land fully and absolutely, but that the vice he wishes to complain of is that the defendant induced him thereto by undue influence. This would be in direct contradiction of the positive allegations of the bill and contrary to the scheme and equity of the case. The very gist of the bill is that the transaction was in truth not a sale nor an absolute conveyance, but an arrangement having no other end than the obtainment by complainant of $100 by way of loan and the giving of security therefor.

In dealing with the facts their applicability must be observed. They can have no force except as they are pertinent to the case made by the bill and are fitted to help prove or disprove it, and hence the relations of the parties, in so far as they have that tendency, are worthy of consideration. Beyond that they are of no importance now. The case must be examined and determined with reference to the principles which are appropriate to it, and not under a doctrine which is only germane to a claim of a different nature. The cir cumstance that defendant was complainant's stepfather—that they were close friends and mutual confidants-has been made conspicuous, and no doubt it is worthy of attention on this issue. Still the bearing of the fact is not exclusively applicable to the theory of complainant. So far as it has any aptness to influence the case at all, its character as well fits it to be pressed into the support of defendant's contention as into that of complainant. The argument is certainly admissible that it was a natural tendency of the relation to lead the complainant to espouse what was morally just and right towards the defendant, and that the existence of the relation is consequently entitled to weigh in favor of the construction that complainant's purpose was to make defendant the absolute owner of the little homestead, and not merely a mort

gagee for the one item of $100 then or thereafter furnished. It is only necessary to read the correspondence to see that when the transaction took place the defendant held no ascendancy over complainant. The latter was about twenty-two years of age and was not destitute of self-sufficiency nor lacking of self-reliance. The glimpse afforded by the evidence of what occurred at the law office in Pontiac is pretty signicant in its indication that he was very far from being the weak and passive victim of the stronger will, superior intelligence and overreaching craft and influence of the defendant. The case, however, creates an impression that there was some competition for his partiality. The defendant appears to have taken pains to fix and preserve his attachment and to strengthen his dislike of his mother's relatives, and they seem to have tried to dislodge his regard for defendant and induce him to side with them against the latter. The evidence that strong antipathies existed between defendant and his relations on the one side and the relatives of complainant on the other may be easily traced. It appears in some parts of the testimony which it undoubtedly colors. A careful serutiny results in the opinion that neither complainant nor defendant has established any claim on the confidence of the court.

The evidence of admissions and declarations is conflicting and much of it comes from biased sources. Moreover, a portion of it, if not the most important, is equivocal. It would not disagree with the theory that the deed, while understood as a full transfer of ownership, and so meant, was intended to be concealed from complainant's relatives, who, as both parties desired, were to be misled in regard to what was actually done.

The cost to defendant for the improvements on the premises is a subject of dispute. The evidence is utterly conflicting, and it is also widely at variance in reference to the value of the place at the time of defendant's marriage. The difficulty encountered in dealing with these matters is greatly enhanced by the fact that there was an extreme fluctuation in prices. The special expense which complainant caused defendant is not explained. That there was considerable can

hardly be doubted, and there is ground for supposing that the actual outlay of defendant in expenses on the property for permanent objects, and in the support and assistance of complainant until he went south, may have been nearly if not quite equal to the cash value of the property in December, 1878. If such was the case there was a moral consideration sufficient to explain the transaction in harmony with the natural import of the deed. But whatever may be the truth. in regard to this, it is sufficient that after rejecting whatever is not worthy of belief and judging as well as possible on the numerous contradictions, the matter available to make out the case and prove that the transaction was a giving of security is too slight and uncertain. It falls far short of what is required, according to the authorities, to authorize a court to decree that the intent the parties chose to manifest by their solemn deed is not the true one.

The decree should therefore be reversed and the bill be dismissed with the costs of both courts.

The other Justices concurred.

LUTHER BEECHER, RELATOR V. ANDREW A. ANDERSON,

SHERIFF.

Mandamus to compel service of warrant for perjury.

In mandamus cases the party interested is permitted to be heard in resisting the application.

Prosecuting attorneys have no discretion allowed them to stop all criminal prosecutions instituted before justices of the peace; but a justice ought seldom to hold a respondent to bail, or convict him on trial, when the prosecuting attorney advises him in good faith that no crime is made out.

A justice of the peace may properly take the advice of the prosecuting attorney before issuing a warrant, and refuse it even when the accuser can make a prima facie showing of a technical offense, if the prose

cuting attorney thinks that the case would fail on full hearing, or that the criminal intent was so far wanting that the cause of justice would not be advanced by the prosecution.

A prosecuting attorney can in no wise control the action of the sheriff when a writ has been placed for execution in the latter's hands; the sheriff may take his advice if doubtful as to his duty; but is not relieved from responsibility if he fails in his duty in following it.

A wilfully false oath in a judicial proceeding is not perjury, even if it states material facts, unless the oath itself is material to the proceeding.

The answer of a corporation to a bill in equity is not required to be sworn to, but is attested by the corporate seal. If a discovery is sought, individual corporators may be sworn, but they must be named as defendants in the bill.

Where a bill in equity, not seeking discovery, is filed against a corporation, the general manager, if not himself made a defendant, need not swear to the answer; and if he does so in a case where his oath could not affect the issue or strengthen the answer, his oath, if false, will not sustain a complaint for perjury.

A person arrested on a defective complaint issued by a justice, is entitled to his discharge; and the chance that it may be supplemented by facts not yet shown to the justice, will not justify a mandamus compelling the sheriff to serve it where it will be necessary to take the respondent several hundred miles for his examination.

Mandamus. Submitted Jan. 25. Decided April 13.

F. A. Baker, John Atkinson, H. M. Cheever and J. P. Whittemore for relator. A warrant may be sufficient to give jurisdiction, even though it is not as full as it should be. Boyd v. State 17 Ga. 194; Pratt v. Bogardus 49 Barb. 89; People v. McLeod 1 Hill 378; Atchinson v. Spencer 9 Wend. 62; Pardee v. Smith 27 Mich. 43; People v. Lynch 29 Mich. 274; Turner v. People 33 Mich. 363; Annis v. People 13 Mich. 511; an answer to a bill in chancery is evidence; Hart v. Carpenter 36 Mich. 402; and must be verified, 1 Barb. Ch. Pr. 142.

Don M. Dickinson (Griffin & Dickinson) for respondent.

COOLEY, J. We are asked in this case to issue the writ of mandamus directed to the respondent, who is sheriff of