
    The People ex rel. William H. Parks v. The Circuit Judge for Marquette County.
    
      Mandamus to issue an order to stay waste denied.
    
    An order to stay waste is discretionary and will not be compelled by mandamus.
    If one who is entitled to an order to stay waste does not seek it in an affirmative suit at law or in equity, he has no remedy for its refusal.
    Mandamus.
    Submitted January 22.
    Decided January 23.
    Denied.
    
      
      Parks & Mapes for the relator.
   Per Curiam.

Relator purchased on execution a mining lease in an undivided half of certain lands in Marquette county, and after he obtained his deed the defendants refused to surrender possession, whereupon he brought ejectment. He then applied to the circuit court on a showing of various facts to grant an order to stay waste. This motion the court refused, and we are asked to grant a mandamus to compel it. The form of the lease is not given, and therefore we cannot consider it.

If the action of ejectment lies on such a peculiar title, and if it was liable to sale on execution, both of which questions are understood to be involved, still the application was one of discretion and not of right, and we cannot review that discretion. If the party is entitled to a stay of waste and chooses to seek it in this form and not in some affirmative suit at law or in equity, there is no remedy for the refusal to grant the relief.

We need not, therefore, consider the nature of his rights.

Order refused.  