The facts as alleged in the petition for mandamus were:

1. That on July 7, 1896. the relator was arrested upon a capias ad respondendum issued at the suit of Augusta Pieschke from the circuit court of the county of Wayne; that in the affidavit to hold to bail made by said plaintiff it was averred:

a — That affiant would say on her personal knowledge that on April 29, 1896, at the eity of Detroit she, at the request of relator, a physician and surgeon, employed him to attend affiant, and to bestow the oare, diligence, and attendance of relator as such physician in and about endeavoring to cure affiant of a certain illness under which she then labored for reward to be thereafter paid to relator, who accepted and entered upon such employments such physician.

& — That relator not regarding his duty, but contriving and intending to injure affiant in this respect, did not nor would use due and proper care, skill, or diligence in and about endeavoring to cure affiant of said illness, but on the contrary thereof conducted himself in an ignorant, unskillful, and negligent manner in that behalf in this: that on the day aforesaid relator inquired of affiant as to the cause of her illness; that affiant told him she did not know, that there must be something wrong with her womb as she could not walk very well; that relator then and there examined affiant, and said to her that she was in a family way; that there was something there that must come away; that it was either a chunk of blood or the afterbirth; that relator placed five pills in affiant’s mouth, at the same time telling her to use a syringe every two horns.

c — That on April 39, 1896, relator visited affiant; that he brought with him his surgical instruments, and without the attendance of any other physician recklessly, negligently, wilfully, carelessly, wantonly, roughly, and unnecessarily introduced said instruments into affiant’s womb, operating upon affiant, taking from affiant large quantities of blood and shreds, thereby lacerating the parts, rupturing the blood vessels thereof, causing the loss of an unusual quantity of blood, and thereby rendering affiant sick, sore, weak, disordered, and dangerously ill for a long space of time from thence hitherto; that at the time of said operation affiant had been pregnant for about three months; that on May 19, 1896, she was prematurely delivered of a child; that the death and premature delivery of said child were caused by the operation unnecessarily performed as aforesaid, and from no other cause; that by reason of the premises affiant became and still is greatly injured in her health and constitution, suffered great and unnecessary pain and anguish, was and is reduced and weakened in body, and her recovery from said illness has been and is thereby retarded and delayed, to her damage $5,900.

2. That one Isaac O. Kemberling made an affidavit, in which it was averred: . •

a — That affiant was a practicing physician of the city of Detroit, and the family physician of plaintiff; that on June 25,1896, he was called to attend plaintiff; that after a careful examination he found plaintiff in a very much exhausted condition; that she was very nervous, and suffering from a constant loss of blood and from a congested uterus, from which blood was then flowing in considerable quantities.

6 — That he was informed by plaintiff, and verily believed that plaintiff, was suffering from the results of a surgical operation performed upon her by relator, and from a miscarriage which occurred on May 19, 1896, as the result of an operation performed upon plaintiff on April 30,1896, by relator, who had been called to treat plaintiff for an illness of which she was then suffering; that at the time of said operation relator introduced surgical instruments into plaintiff’s womb, and took from her large quantities of blood, shreds, etc.; that ever since said operation plaintiff has constantly had a discharge of blood in large quantities; that since June 23, 1896, plaintiff has been and still is under the *80care of the affiant as attending physician.

3. That relator was released from arrest on giving appearance bail as required in the order to hold to bail.

4. That relator moved said circuit court to vacate said order to hold to bail; that saidjmotion was argued before respondent, who on July 27,1896, denied said.motion; that relator has not yet put in special bail in said cause.