puted what the claim of complainant would be, and to guard against any contingency added thereto approximately $50, and had his attorney take the amount in gold to the office of the complainant and tendered it to them.

It is not disputed but that a tender was made; but complainant insists the amount was not large enough, and this litigation followed.

It should be remembered the materials were furnished to remodel an old building. If the house was a homestead, the contract should have been signed by the wife. If the house and lot was not a homestead, it belonged to Mrs. Lucy A. Wilkinson. She was not a party to the contract. Nor is there evidence from which the inference can fairly be drawn that, in making the contract with Mr. Lessing, Mr. Morton was acting as the agent of Mrs. Wilkinson. See Merrill v. Brant, 175 Mich. 182 (141 N. W. 550).

We do not deem it necessary to pass upon the question of the homestead (see Maatta v. Kippola, 102 Mich. 116 [60 N. W. 300]), or upon the question of the tender. The record does not disclose such a situation as to entitle complainant upon any theory to a decree.

The decree of the court below is affirmed, with costs.

MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

BENNETT v. KALAMAZOO CIRCUIT JUDGE.

MANDAMUS-CRIMINAL LAW-QUASHING INFORMATION-REVIEW. It is necessary, in a criminal proceeding as well as in a civil suit, to move to vacate an order which the relator by mandamus seeks to have set aside: the rule applies to an order quashing the information in a prosecution for violation of the liquor law. OSTRANDER, J., dissenting.

Mandamus by Milo O. Bennett, prosecuting attorney for the county of Kalamazoo, to compel Nathaniel H. Stewart, circuit judge of said county, to set aside an order quashing an information charging one George Duncan with selling liquor without furnishing the statutory bond. Submitted June 9, 1914. (Calendar No. 25,986.) Writ denied July 24, 1914.

Milo O. Bennett, in pro. per.

George V. Weimer, for respondent.

MOORE, J. In the case of People v. George Duncan the complaint, warrant, and information charged that the respondent "did engage in the business of selling and keeping for sale and did sell intoxicating liquors on the second floor of a certain building situated on North Rose street, etc., without theretofore having made, executed and delivered the bond," etc. A motion to quash the information was made and granted. The relator seeks by mandamus to have that action vacated for many reasons which he discusses in his brief.

The circuit judge in his return states, among other reasons, that the prayer of relator should not be granted, because the petition does not show that there was "any request by relator and refusal by this respondent to vacate the said order mentioned in said

petition quashing said information and warrant and discharging said Duncan."

The attorney for the respondent, who is also the attorney for Mr. Duncan, insists that because of this return this court should not issue the writ of mandamus.

The relator concedes the rule in civil cases, but argues it does not apply in criminal cases where an information has been quashed, citing a number of cases. We have examined them all, and do not find a case, either civil or criminal, where the person seeking the vacation of an order was granted a writ of mandamus, where the record shows that no motion to vacate the order was made and counsel insisted upon the objection.

There are many cases where under such circumstances the writ was denied. Hitchcock v. Wayne Circuit Judge, 97 Mich. 614 (57 N. W. 189), and cases cited in the note; Stenglein v. Saginaw Circuit Judge, 128 Mich. 440 (87 N. W. 449); Freud v. Wayne Circuit Judge, 131 Mich. 606; Blain v. Chippewa Circuit Judge, 145 Mich. 59 (108 N. W. 440). See, also, Lapham v. Oakland Circuit Judge, 170 Mich. 564 (136 N. W. 594).

The application is denied.

MCALVAY, C. J., and BROOKE, KUHN, STONE, BIRD, and STEERE, JJ., concurred with MOORE, J.

OSTRANDER, J. (dissenting). I think there was no occasion to move to vacate the order.

INDEX.

ABATEMENT AND REVIVAL-See ACTION.

ACCEPTANCE-See CONTRACTS (10).

ACCIDENT INSURANCE-See INSURANCE (2, 3, 6).

ACCORD AND SATISFACTION-See CONTRACTS (8).
ACCOUNTING See CORPORATIONS (3); ESTATES OF DECEDENTS
(2, 6); MORTGAGES (2, 3); SOLDIERS' HOME (4); STATES.
ACTION.

By an equally divided court it is determined, on demurrer
to a declaration of executors of a decedent's estate, that
no right of action survived where the defendants con-
spired together to restrict commerce and trade and thereby
injured and destroyed the manufacturing business of the
deceased; that the action was not for fraud and deceit
so as to survive under 3 Comp. Laws, §§ 10421, 10422, or
§ 10117 (5 How. Stat. [2d Ed.] §§ 13954, 13955). Frohlich
v. Deacon, 255.

See ARREST; PLEADING (3, 4); STATES; TAXATION (1).

ADEQUATE REMEDY AT LAW-See FRAUDULENT CONVEYANCES
(3, 4).

ADMISSIONS-See BILLS AND NOTES (10); CRIMINAL LAW (1,
11); EVIDENCE (13); RAILROADS (3).

ADVERSE POSSESSION.

Evidence tending to show that the plaintiff had occupied
a parcel of land between his land and defendants' as a
wood lot for 40 years and upwards and that the line as
claimed by him had been established by a survey some
40 years previous to the alleged trespass, and that later
a second survey had been made by the same surveyor
and acquiesced in by the person who then owned defend-
ants' premises made a prima facie case of adverse posses-
sion. Butcher v. Burns, 17.

AFFIDAVIT OF MERITS-See TRIAL (5).

AFFIDAVITS.

1. Upon filing a motion for change of venue in a criminal
case, the prosecuting attorney is required to serve copies

(703)