The facts as set forth in the petition for certiorari were:
1. That on August 18, 1896, the relator applied to the circuit court for Gogebic county for a mandamus, in which application she alleged:
a — That on June 23, 1896, at Waters-meet in said county, one Tell Clark struck relator on the head with a large stone and knocked her down; that he then kieked her in the face, breast, and other parts of the body; that at the time he made the assault relator was crossing the main street from the post office to the depot; that said assault was unprovoked; that on the following day relator laid the matter before the prosecuting attorney of the county; that on his advice she went before a justice of the peace of the county, and made a complaint against said Clark; that on June 30,1896, said justice wrote her that he had been informed by said prosecuting attorney that Clark had been once tried before a justice of the peace of the same county for the same offense, and that the writer could not proceed against him a second time; that relator should have stated such fact when she made her complaint, and the writer would have given her the same advice contained in said letter; that on July 2, 1896, relator laid the case before H. M. Norris, of the firm of Button & Norris, attorneys at Bessemer, in said county, who advised her to go before W. J. Haggerson, a justice of the peace of Bessemer, and make a complaint against said Clark for an assault and battery, which relator did; that on that day a warrant was issued on said complaint, and placed in the hands of petitioner, who was sheriff of Gogebic county, for execution; that said warrant is now in his hands, but he refuses to serve it unless relator pays him for all his trouble in making such arrest; that said sheriff claims that said prosecuting attorney has informed him that the county wiH not pay his fees for making said arrest.
[On information and belief the petitioner admitted, in his answer to the order to show cause, the proceedings had before Justice Johnson, except as to the amount of costs imposed on Clark, of which fact he averred a want of knowledge. As to the alleged purpose of said prosecution he left relator to her proofs; also left her to her proofs as to the action of deputy sheriff Kern, and the statement made by him to Clark; also as to whether or not relator when she went to the prosecuting attorney had knowledge of the action before then taken against Clark; also as to the information given her by the wife of the other justice to whom application was made for the arrest of Clark. Editor1] [The substance of the answer, so far as makers of fact are concerned, is set forth in connection with the averments of relator in her petition, in which answer petitioner raised the same legal objections urged by his counsel in the brief hereinbefore set forth. Editor]b — That relator had been informed that one Luke Kern, a deputy sheriff of Watersmeet, either on the day of the assault or the following day, took said Clark before one A. D. Johnson, a justice of the peace of Watersmeet, and made complaint against him; that said Johnson, upon Clark’s plea of guilty, imposed a fine of $1 and $1 costs; that if such proceedings were had it was for the purpose of shutting off a prosecution of Clark by relator; that relator was informed, and so charged, that said deputy sheriff, after seeing Clark knock her down without any attempt at making haste, crossed the street to'where said Clark was kicking relator, and said to him, “There Tell, you have given her enough;” that said deputy and Clark then went .across the street, and the deputy bought a drink for Clark; that relator at the time of going to the prosecuting attorney did not know that any action had been taken against Clark; that she has been informed by the wife of another justice of the peace of Watersmeet that the parties came to her husband before going to Johnson, and asked him to take a complaint against Clark, but he yofused to have anything to do with the matter, and they went to Johnson.
2. That such proceedings were thereafter had as resulted in the issuance of an order to show cause, the filing of an answer by petitioner thereto, a hearing upon said relator’s petition and said answer, and the granting of the mandamus asked for.