mitted a reversed bastardy case to the circuit court for further action. A new trial will therefore be ordered with the reversal. We make no order for costs, as there is some doubt how they can be awarded. The other Justices concurred. WILLIAM MITCHELL V. HURON CIRCUIt Judge. Summons while outside the jurisdiction—Mandamus. 1. Mandamus lies to set aside the service of a summons if made upon one who at the time is outside of the jurisdiction in which he lives, and is there for the sole purpose of attending as a necessary witness in other cases. 2. Costs are not allowed on issuing mandamus if no intentional wrong on respondent's part is charged or appears. Mandamus. Applied for April 22. Granted April 30. T. A. E. Weadock for relator. Protection from process extends to all who have relation to another suit that calls for their attendance: Meekins v. Smith 1 H. Bl. 636; while compelled to attend, or present voluntarily: Walpole v. Alexander 3 Doug. 45; Larned v. Griffin 12 Fed. Rep. 590; Dungan v. Miller 8 Vroom. 182; 1 Greenl. Ev. § 436; this immunity extends to parties as well as witnesses; Persons v. Grier 38 Am. Rep. 111: In re Healey id. 711; Nichols v. Horton 14 Fed. Rep. 329; M'Neil's Case 3 Mass. 288; Bridges v. Sheldon 7 Fed. Rep. 36; and is not confined to non-residents: Wetherill v. Seitzinger 1 Miles 237. COOLEY, C. J. The relator resides at Bay City in the county of Bay. He was a party to two suits pending in the county of Huron, and went to Bad Axe to attend on the trial thereof. He was examined as a witness in one of the causes and the other was continued. He makes oath that he was a necessary witness in the two cases, and attended the 53 541 73 501 53 541 113 110 53 541 125 285 125 289 court for the sole purpose of giving his evidence. While so in attendance he was served with a summons in another case. He applied to the court on a showing of the facts to set aside the service, but the application was refused. He now moves in this Court for a writ of mandamus. We think the case is within the principle of Watson v. Judge of Superior Court 40 Mich. 729 and that the writ should issue. Public policy, the due administration of justice, and protection to parties and witnesses alike demand it. There would be no question about it if the suit had been commenced by arrest; but the reasons for exemption are applicable, though with somewhat less force, in other cases also. The following cases may be referred to for the general reasons: Norris v. Beach 2 Johns. 294; Sanford v. Chase 3 Cow. 381; Dixon v. Ely 4 Edw. Ch. 557; Clark v. Grant 2 Wend. 257; Seaver v. Robinson 3 Duer 622; Person v. Grier 66 N. Y. 124; Matthews v. Tufts 87 N. Y. 568; Hall's Case 1 Tyler 274; In re Healey 53 Vt. 694; Miles v. M'Cullough 1 Binn. 77; Halsey v. Stewart 4 N. J. L. 366; Dungan v. Miller 37 N. J. L. 182; Vincent v. Watson 1 Rich. Law 194; Sadler v. Ray 5 Rich. Law 523; Martin v. Ramsey 7 Humph. 260; Dickenson's Case 3 Harr. (Del.) 517; Henegar v Spangler 29 Ga. 217; May v. Shumway 16 Gray 86; Thompson's Case 122 Mass. 428; Ballinger v. Elliott 72 N. C. 596: Parker v. Hotchkiss Wall. C. C. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Arding v. Flower 8 Term 534; Newton v. Askew 6 Hare 319; Persse v. Persse 5 H L. Cas. 671. See also Matter of Cannon 47 Mich. 481. The case of Case v. Rorabacher 15 Mich. 537 is different. In that case the party claiming the privilege was attending court within the jurisdiction of his residence. The writ must issue, but as no intentional wrong is charged or appears it will be without costs. The other Justices concurred. LOU A. FRIEND V. JOHN FRIEND. Divorce-Estoppel-Extreme cruelty-Dower. 1. A party to a divorce suit is not estopped as to the main issue by a decree entered by his own procurement, since collusive divorces are unlawful. 2. It is extreme cruelty to turn a wife and her daughter out of doors without cause, and to make their separation the condition of taking the wife back again. 3. A woman who obtains a divorce cannot be deprived, without her consent, of her dower right. Appeal from Kent. (Russell, J.) April 22-3.-April 30. DIVORCE bill. Both parties appeal. Affirmed. C. C. Howell for complainant. Conduct which results in driving a wife from home is cruelty: Briggs v. Briggs 20 Mich. 34; Burr v. Burr 7 Hill 207. Wm. O. Webster for defendant. One is not obliged to support a step-child: Tubb v. Harrison 4 Term 118; Cooper v. Martin 4 East 76; Freto v. Brown 4 Mass. 675; Com. v. Hamilton 6 Mass. 273; Worcester v. Marchant 14 Pick. 510; Brookfield v. Warren 128 Mass. 287; Gay v. Ballou 4 Wend. 403; Williams v. Hutchinson 3 N. Y. 317. CAMPBELL, J. Complainant obtained a divorce from defendant for cruelty, and was granted seven hundred dollars alimony absolutely, and six hundred more in case she should release her dower, these amounts to be paid in one, two, three and four years, with interest after one year. Defendant appealed generally, and complainant appealed for insufficient alimony. Complainant, when she married defendant in November, 1876, was doing a fairly prosperous business as a hair-dresser, and had one daughter, named Jennie Farrell, about ten years old. She had no property beyond her business, which was chiefly made available by her personal exertions. Defendant at this time was a widower who had been married more than once, and had several grown up children living near him, and three daughters at home of the ages respectively of fifteen, ten and five years. He lived on a farm adjoining Sebewa corners in Ionia county, where he was also engaged in mercantile business. He owned other lands near by. The bill was filed in June, 1880, and complainant by her counsel took testimony and made out her case. By some clandestine arrangement between defendant and her counsel, they without her knowledge or procurement got a decree of divorce with a small amount of alimony, to the extent of $400, with ordinary costs. This decree was made in November, 1880. He had previously offered $500 as a compromise, but complainant declined making any consent arrangement. When she learned of this decree she filed a bill to rescind it for the fraud, and it was rescinded. Both parties afterwards proceeded with proofs, which are very bulky, the complainant having put her case in the hands of new solicitors, and the cause having been transferred to Kent county for disposal. If divorce cases stood on the same footing with all other cases, we should feel bound to consider defendant as estopped by the decree entered in the first instance by his procurement, so far as the main issue is concerned. But our laws forbid all collusive divorces, and require each case to stand on its proper equities. We must therefore examine into the facts. It is proper to say that complainant has not sought to get any advantage from the old decree which she repudiated as fraudulent, and has invited a hearing on all the merits. The case presents some difficulties concerning a part of the facts, and is supposed by counsel for defendant to raise some legal difficulties also. We shall therefore be obliged to make reference to the general nature of the controversy, but we do not think it desirable to perpetuate by narration the unfortunate details of family strife, beyond the actual necessities of decision. They arose in considerable measure from the complications of families not having the same common ties. While there was some disparity of age, it had no apparent effect on the relations of the parties except through the divers ity of children. No children were the result of complainant's marriage with defendant. But complainant's young daughter became one of the means of cruelty, if there was cruelty, by which defendant compelled her to seek legal redress. Upon her marriage complainant gave up her business, and she and her daughter went into the family, consisting generally of these parties and defendant's three daughters before mentioned. The older married children formed no part of the permanent household. The grievances which complainant relies on are alleged as consisting chiefly in various forms of domestic tyranny, and more particularly in wounding her feelings by insulting and injurious charges and insinuations against her chastity. But the final and principal ground of complaint was the forcible and violent expulsion of complainant and her daughter from defendant's house. Upon the hearing defendant's counsel very fully vindicated complainant from any imputations of impropriety, and insisted not only that defendant acquitted her of misconduct but had never charged her with it, and had always been and still continued desirous of her return. It is therefore hardly necessary to say that her character appears free from any such stain. But in his answer, he defends not only by making counter-charges of many neglects of duty and acts of ugliness, but by insinuations which are quite as offensive as direct charges of unchaste conduct. The answer is in such a tone as very conclusively negatives any desire for conciliation, or any real affection. And we cannot but feel that it is somewhat corroborative of complainant's charges as to defendant's temper and conduct, as hard and vindictive. The witnesses to the larger part of the home transactions are necessarily such as to have considerable bias, and it becomes necessary to infer the real meaning of ambiguous facts by looking somewhat at results and consequences. If we had nothing before us but the testimony concerning a large part of the sayings and doings in the family, we could not with any assurance conclude that such discords as appeared reached such a degree as to make the marriage relation 53 MICH-35 |