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"Second. Because the said affidavit of said abovenamed plaintiff does not establish such a case as warrants, under the law, an order holding defendant to bail.

"Third. Because this court possesses no jurisdiction to issue an order holding defendant to bail under the circumstances set forth in affidavit for said writ of capias made by the above-named plaintiff.

"Fourth. Because said order to hold to bail was based upon hearsay evidence as appears by the affidavit of the above-named plaintiff.

"Fifth. Because plaintiff's alleged right of action is based upon a conversation alleged to have been held between defendant and William H. Gallagher, attorney of record for the plaintiff in case entitled Blanche Peck Wanner, Plaintiff, v. Madeline Clements, Defendant, Circuit Court for Wayne County, file No. 53,646, which said right of action was then pending in said court, and the alleged defamatory statements were afterwards, on or about the 18th day of September, A. D. 1911, sworn to by said defendant, when called as a witness in said cause, which said cause has not as yet been tried in court on its merits, and which is pending in said court for trial.

"Sixth. Because defendant cannot properly be deprived of his liberty upon an affidavit for writ of capias, made up of hearsay statements and allegations."

The trial judge was of the opinion that the affidavit was defective, but regarded the affidavit of relator as an admission of the truth of the averments in the affidavit, and declined to quash the proceedings. He cited in support of his opinion the case of Robinson v. Branch Circuit Judge, 142 Mich. 70 (105 N. W. 25). A reference to that case will show it is clearly distinguishable from the case at bar. The opinion in that case closes by saying:

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'But whether or not the affidavit is technically sufficient, the writ asked for is not one of right, and, as relator made it appear to the circuit court that the facts set out in the affidavit are true, contesting and disputing only the conclusion of affiant."

The affidavits of relator are too long to make it advisable to quote them, but a fair reading of them does not give rise to the inference that the facts set out in the affidavit for capias are true. The last-named affidavit

was too faulty to be the basis of a proceeding of the character of the one before us. See Proctor v. Prout, 17 Mich. 473; Hackett v. Wayne Circuit Judge, 36 Mich. 334; Shaw v. Ashford, 110 Mich. 534 (68 N. W. 281); Wright v. Wayne Circuit Judge, 119 Mich. 499 (78 N. W. 545); Church v. Calhoun Circuit Judge, 129 Mich. 126 (88 N. W. 403); 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). The writ is granted, with costs.

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

In re EVANS.

CRIMINAL LAW-Maximum SENTENCE - INDETERMINATE SENTENCE LAW.

Under the amendment of the indeterminate sentence law enacted in 1905 (Act No. 184), directing the court imposing sentence to state the maximum penalty, no discretion to name a shorter period than the statute fixes vests in the circuit judge, whose duty is purely ministerial, so that a respondent convicted of burglary, for which the statutory maximum is 15 years, was not entitled to be released at the end of five years, the maximum erroneously stated by the order of the court which also named three years as a reasonable time.

Petition by Charles Evans for the writ of habeas corpus to secure the release of petitioner from imprisonment in State prison at Jackson. Submitted October 8, 1912. (Calendar No. 25,375.) Writ denied November 8, 1912.

Burney E. Brower and Reuben H. Rossman, for petitioner.

Thos. A. Lawler, Deputy Attorney General, and Edward Waer, Assistant Attorney General, for the people.

BIRD, J. The petitioner, Charles Evans, raises the question as to whether he is legally detained in Jackson prison by a petition for a writ of habeas corpus.

The petitioner was convicted of the crime of burglary in the Berrien circuit court, and on the 1st day of May, 1907, received the following sentence:

"The said Charles Evans to be confined in the State prison at Jackson, at hard labor, for the maximum period of five years and for the minimum period of two years, and the court recommends three years as a reasonable maximum sentence."

The maximum period fixed by the trial court having expired, the petitioner contends that he is now entitled to be discharged. The warden refuses to release him, and bases his refusal upon the fact that the statute (section 11546, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 14592) under which petitioner was sentenced provides a maximum penalty of 15 years, and that the statute should control, rather than the 5-year period fixed by the trial court.

It is argued by the attorney general, in defense of the warden's position, that the fixing of a 5-year maximum period by the trial court was without warrant of law, for the reason that the indeterminate sentence law confers no authority on the trial court to fix any other or different maximum period than the one fixed by the statute, under which the sentence was pronounced. The indeterminate sentence law provides:

"The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence." Act No. 184, Pub. Acts 1905.

It will be observed from a reading of this provision that the legislature conferred no authority on the trial court to

fix the maximum period. The legislature itself pointed out what the maximum period should be, and directed the trial court to "state it in passing sentence." The duty imposed on the trial court was not one in which he had any discretion, but was simply a plain ministerial duty. This being so, it would follow that the maximum period of 5 years, fixed by the trial court, is a nullity, and should be rejected as surplusage, and the remainder of the sentence read in connection with the statute, which fixes the maximum period at 15 years. In re Duff, 141 Mich. 623 (105 N. W. 138).

But it is argued that the trial court did fix the maximum penalty at 5 years, that the sentence has never been corrected, and the petitioner has treated it as valid and served out the period, and now ought to be discharged. We do not so view it. As soon as sentence was pronounced upon the petitioner, the statutory maximum penalty became a part of it. It was a legislative fixing, with no power in the trial court to make it more or less, and the fact that he did make it less, either through inadvertence or misapprehension, could no more alter the statutory period than as though he had named a longer period than 15 years. This precise question was discussed and decided in Re Duff, supra; but it is contended by the petitioner that that case is no longer controlling, because the indeterminate sentence law has since been amended. The provision of the 1905 law is the same as the law of 1903 (Act No. 136, Pub. Acts 1903), except that in the 1905 law the trial court was directed to state the statutory maximum penalty in passing sentence. Neither law gives the trial court any discretion in fixing the maximum period, where it is fixed by the statute. This amendment to the law would not destroy the applicability of the case to the present one.

The petition is denied, and the prisoner remanded.

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

GILDEA v. WARREN.

1. ADVERSE POSSESSION TACKING SUCCESSIVE POSSESSIONS BOUNDARIES.

Plaintiff, in an action of ejectment, was entitled to have her case submitted to the jury on the question of adverse possession of her house and lot, which she had owned less than 15 years, but which had without dispute been included by a fence within the boundaries of her yard, during more than 30 years and which her predecessors in title had held in possession.

2. SAME-BOUNDARIES.

Upwards of 15 years' recognition of and acquiescence in boundaries of real property amply support a claim for the premises included thereby, which ought not to be upset by new surveys based on alleged original monuments.

Error to Wayne; Mandell, J. Submitted October 11, 1912. (Docket No. 51.) Decided November 8, 1912.

Ejectment by Mary Gildea against Mary B. Warren. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error. Reversed.

Sloman & Sloman, for appellant.

Campbell, Bulkley & Ledyard (Joel H. Prescott, of counsel), for appellee.

MOORE, C. J. Plaintiff brought this action of ejectment to recover possession of a strip of land, which is described as follows:

"Commencing at a point on the north line thereof, as above described, about thirty-five and feet west of the west street line of said Twelfth street; thence running southerly and at right angles to said line one and feet; thence westerly about nine and feet; thence on a curve northerly to a point on the said north line of said plot of ground about ten and feet from the place of

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