osition upon the fact that substantially all the witnesses in the case, both for the plaintiff and the defendant, testified that like jams had occurred in the river before the defendant's dam was constructed. We claim that the evidence shows such a state of affairs in 1885 and 1895. If the defendant is liable for the damages that accrued in the winter after its dam was constructed, why should it not be liable for the damages that accrued in exactly the same way seven years before its dam was constructed at all? * ** * No attempt is made to disprove the evidence of these witnesses, and it clearly establishes the fact that in 1895 or 1896 substantially the very same thing occurred as that complained of in the plaintiff's declaration. The weather was substantially the same; conditions everywhere substantially the same. That there should be no misunderstanding about it, we will quote from the testimony of some of the witnesses sworn in behalf of the plaintiff. We have examined the voluminous testimony in the record with diligence, and are satisfied that the court would not have been warranted in giving this request. The testimony is not undisputed, but in conflict; and there is abundant testimony in support of plaintiff's contention, both as to the injury being caused by defendant's management of its dam, and as to variance between the conditions at the time of the injury and on prior occasions. The second proposition involved in this request, viz., that plaintiff had not shown that it had suffered any damage, is equally unfounded. Plaintiff's secretary and manager testified that at the time of the injuries in question they had orders enough ahead to run two or three mills just like the mill in question; that there was an actual cash loss each day the mill was shut down of $90.26, and the net profits for each day were $42.12; that the mill was shut down for 11 working days, and they had had no dull season for 2 years. He also testified as follows: "Q. How many orders did you have on the last week in December, 1902, to fill? "A. I could not tell. We didn't fill any that week. I presume we filled them. I don't remember. I have no recollection of any being canceled. I suppose we filled the orders we had on hand when we commenced to run." It is upon this testimony principally that defendant's counsel base their contention that no damage was shown because, they say, "if the plaintiff filled all the orders it had on hand, none were canceled, and it did not have to turn away any business, where did it lose anything?" Even though plaintiff only received or procured orders enough to run during the period when it was not shut down, it would not follow that it would have permitted its mill to remain idle for 11 days, or that it would not have received or procured orders for the 11 days if it had been in condition to run. The company was paying expenses and. getting no returns for these 11 days. It does not follow that, even if they had not been compelled to shut down then, they would have been compelled to shut down for a like period later on through lack of business, and therefore have been subjected to the same expenses without returns; and in any event the plaintiff would have been entitled to nominal damages, which would be fatal to the request. The fourth request has respectable authority in its support. See Smith v. Canal Co., 2 Allen (Mass.), 355. There is equally respectable authority to the contrary. See Davis v. Fuller, 12 Vt. 178; McCoy v. Danley, 20 Pa. 85; Cowles v. Kidder, 24 N. H. 364. We do not think this request contains a correct statement of the law. It requires the court to direct a verdict in favor of the defendant, although the jury should find that the formation and flowage of the slush ice during the winter season was a usual and ordinary occurrence, and the defendant might reasonably and naturally have foreseen that the effect of its maintaining the water at its dam at its highest level would naturally be the formation of an ice jam, which would shut down the plaintiff's mill, and which injurious results might readily have been obviated by the defendant, without injury to itself, by opening its gates sufficiently to create a current and allow the slush ice to pass on down the river. The evidence made a case for the determination of the jury, and the request was properly refused. Third. We do not consider it necessary to consider the objections to the charge specifically. Most of them are covered by what we have already said, and as to the others we are satisfied that they are not well founded. We think the charge was a clear, impartial, and substantially correct presentation of the case to the jury. The judgment is affirmed. MOORE, C. J., and CARPENTER, MCALVAY, and MONTGOMERY, JJ., concurred. 141 58 149 1 56 WELLS v. MONTCALM CIRCUIT JUDGE. 1. PROHIBITION-Propriety-ConFLICT OF JURISDICTION. 2. COURTS-JURISDICTION-CONFLICTS-PRIORITY. Where husband and wife reside in different counties, and the wife files a bill for divorce in the county of her residence and in good faith places the subpoena in the hands of the sheriff for service, the court has jurisdiction, and the subsequent filing of a bill by the husband in his county will not oust it, though service of process is obtained first on his bill. Petition by Maude M. Wells against Frank D. M. Davis, circuit judge of Montcalm county, for a writ of prohibition to restrain the exercise of jurisdiction in a divorce proceeding. Submitted June 20, 1905. (Calendar No. 21,143.) Writ granted July 21, 1905. E. O. Grosvenor and Willis Baldwin (Griswold & Tennant, of counsel), for relator. E. J. Bowman and C. L. & C. B. Rarden, for respondent. CARPENTER, J. The circuit court for the county of Wayne, in chancery, and the circuit court for the county of Montcalm, in chancery-courts of co-ordinate jurisdiction each asserts exclusive jurisdiction over a divorce suit between relator and her husband, Percy D. Wells. Relator, Maude, resides in Wayne county. Her husband, Percy, resides in Montcalm county. Relator, Maude, is the complainant, and her husband, Percy, the defendant, in the suit pending in the Wayne circuit court, while Percy is the complainant and Maude is the defendant in the suit pending in the Montcalm circuit court. The suit pending in the Wayne circuit was first commenced, and the subpoena immediately placed in the hands of a sheriff for service. Before this service was made, the suit was commenced in the Montcalm circuit, and the process issued from that court was served before the process issued from the Wayne circuit. The complainant in each suit asked for the custody of the infant child of the parties, the offspring of the marriage, and each court has issued an injunction restraining the defendant from interfering with the complainant's custody of said child. The defendant in each suit has filed a plea to the jurisdiction, and each court has overruled that plea. Relator now applies to this court for a writ of prohibition directed to said respondent, requiring him to refrain from exercising jurisdiction of the suit pending in the court of which he is judge. The first question for our consideration is this: Is a writ of prohibition the appropriate remedy? We have held (Wells v. Montcalm Circuit Judge, 139 Mich. 544) that mandamus is not the appropriate remedy, saying: "The writ of mandamus will not be allowed to take the place of an appeal or a writ of prohibition, or any other writ to review the action of a lower court." The writ of mandamus asked for would simply have compelled the vacation of certain orders. This relief would have been inappropriate. Appropriate redress for relator's grievance requires respondent not merely to vacate orders already made, but to refrain from further exercising jurisdiction. This relief can be afforded by a writ of prohibition (see Hudson v. Judge of Superior Court of Detroit, 42 Mich. 239), but not by a writ of mandamus. No relief can be obtained by appealing from the order overruling the plea. That order is not appealable. See Miller v. McLaughlin, 135 Mich. 646. It is earnestly contended that relator can secure appropriate relief by appéaling from a final decree. There is no doubt that the question involved in this case may be reviewed by appealing from a final decree, provided relator does nothing to waive her right to have it so reviewed, but it by no means follows that the remedy by appeal is adequate. Each of the two courts now claiming and exercising jurisdiction has already made, and, it may be presumed, will hereafter make, conflicting orders respecting the custody of the minor child It may be presumed that each of these courts will proceed at once to enforce such orders. Indeed, it is clear that the interests of the parties and of the child require that the order of the court whose jurisdiction is rightful should be at once enforced. The situation would be intolerable if this condition of affairs must continue during all the time that must elapse before the case can be reviewed after a final decree. This is a case, therefore, in which it is clear that the remedy by appeal is not adequate. Our own decision in Maclean v. Wayne Circuit Judge, 52 Mich. 257, is authority for the proposition that the writ of prohibition is the appropriate remedy. In |