Sheriff Gillen's case against the Michigan Central railroad was thrown out the circuit court yesterday, but it will be appealed to the supreme court. A jury was drawn and, without even statiug what the action was, Attorneys Brown and Cavanaugh, for the plaintiff, announced that they were satisfied. Lawrence & Butterfield said the same thing. Judge Kinne looked surprised, as this was certainly a record breaker. Said he : "I am rather suspicious that you four men should be satisfled with 12 men." The action was brought to recover $100 f rom the railroad company under a statute which provides that penalty when the railroad company refusea to transport a person who properly presents himself and has paid for his transportation. The facts in the case were undenied. Mr. Gillen went to the Michigan Central depot on March 18, to catch the 8 :40 train for Dexter. He had a mileage book, and passed by the gate-keeper. The train pulled in, and some passengers got out of the rear coach. Mr. Gillen was smoking and started to get into the next to the last coach. He saw sonic ladies there and got down and passed aloug to the rear coach. There was nobody in this coach, and he entered. The train pulled out and then switched the rear car on a side track, leaving Mr. Gilen at the station. The contention of the plaintiff 's attorneys was that by bringing the ca? into the statioii and rnot looking the doors, tliey invited Mr. Gillen to ride therein on his mileage. And in puiling out without the rear car they had refused to transport hiin. Judeg Kinne directed a verdict for the railroad company, and in doing so he said: "My idea is that this statute contemplates a case when the railroad company has deliberately failed to do its duty. Under the evidence, this failure was a mere mistake or accident, and not such a case as is contení - plated by the statute. The railroad company may be Hable for negligence but there is a penalty attached for $100. It is either $100 or nothing. I cannot think when a mere mistake "has been made that the statute applies. I cauiiot think that the legislature that made it intended to muleta the railroad company in the sum of 100." There is no parallel case under the particular statue, and the supreme court will be called upon to decide it.