Brown v. Kelley

20 Mich. 27 | Mich. | 1870

Campbell, Oh. J.

The defendant in error sued Brown before a Justice, and commenced proceedings by swearing out a warrant for an alleged breach of trust. The affidavit set out the facts relied on in the following words, — “ That heretofore, to wit: on the 17th day of September, 1866, he placed in the hands of Jacob L. Brown, the sum of three hundred dollars tor safe keeping, to be kept by the said Jacob L. Brown until such time as this deponent should call for it; that the said Brown, instead of restoring to this deponent the said sum of money so entrusted to him, converted two hundred dollars of the same to his own use, and now wholly refuses to return the same to this deponent.”

The warrant was issued returnable forthwith, and Brown was at once arrested, and gave bail, upon which the suit was adjourned for eight days, at the expiration of which time the cause was tried and judgment was rendered against him.

He took an appeal to the Circuit, and set up by way of special reason for appeal, that on the adjourned day, and before any pleading was in, he moved to dismiss the case for the insufficiency of the affidavit, but the motion was denied, and thereupon plaintiff declared, and issue was joined, and the trial proceeded.

The Justice in his return set forth in the first place the facts required in ordinary appeals, without mentioning the date of the arrest, appearance or pleading, and without mentioning any bail bond or adjournment. He then proceeds as follows: “ And as to the matters stated and set forth in the affidavit to appeal said cause hereto annexed, I do further return that defendant moved to dismiss said cause on the ground of the insufficiency of the affidavit on which the warrant was issued, and that said motion was overruled.”

It is suggested that there is nothing to authorize this objection, to be relied on upon the appeal in the Circuit Court, or in this Court, because the return does not say, in so many words, at what precise stage of the case the motion was made.

But this objection is not well founded. The return was made in response to a special- affidavit, which mentioned when this was done, and relied upon it as the only special ground of error. If it did not set forth the facts truly, and if any step had been taken before the motion, which would have interfered with the defendant’s right, to make it, and would have operated as a waiver, then it must be presumed the Justice would have so stated, or a further return would have been obtained by the original plaintiif. But in the absence of such a statement, it must be assumed the Justice intended to show that the motion was made when it properly might have been, and therefore whatever objection might be relied on, upon the appeal, would be admissible.

The question, therefore, arises whether giving bail upon the arrest and adjournment operated as a waiver of the right to object to the affidavit.

The warrant requires the party arrested to be brought forthwith before the Justice. And it is probably because on such summary proceeding a defendant has no time to consult. and employ counsel, that the statute which contemplates immediate pleading in other cases, directs that on the return of a warrant served, the pleadings, instead of being put in at once, “shall be made within such reasonable time as the Justice-shall allow for that purpose.” (# G. L. 3713). And before any adjournment is allowed to a defendant arrested upon warrant, he is compelled to give bond or remain in custody.

If giving this bond should be regarded as a waiver of objection to the arrest, the result must be in many cases, and in nearly all in retired districts, that a person must remain in custody, or be compelled to waive his rights. It is not conceivable that under a statute which recognized the necessity for indulgence in pleading, any such rigorous and unreasonable rule should be tolerated. The exemption from imprisonment is now a constitutional right, and ought not to be considered as waived, unless the circumstances are such as to make it inequitable for a party to assert it. Under the old common law system, arrest was the rule. Now it is the exception.’ And if courts should now apply, in courts of record, where there is always time and opportunity for obtaining professional aid, the same rules as to waiver that were formerly enforced, there is no sound reason for extending such rigor to summary arrests and proceedings before magistrates, where defendants cannot be expected to understand these technical rules, and where the Justices are much more likely than regular Judges to allow writs on insufficient affidavits. The privilege would be of very small value if it could be taken away so easily. We think the bond was no waiver.

The affidavit is clearly defective. The statute requires it to set forth the facts and circumstances within the knowledge of the person making the affidavit, constituting the grounds of the application. There is not a single fact or circumstance alleged here within the plaintiff’s knowledge, tending to make out a case. The oath is to a mere conclusion of law. It does not show when or where or by whom any demand was made, or even that any demand was made at all upon Brown, or how he met the demand if made. The necessity of such a showing is made more apparent in this case, when the plaintiff showed the facts and circumstances on the trial negativing the truth of his conclusions. The facts to be stated in the affidavit must be given in the same way as on the stand, by a distinct averment of each fact upon knowledge, and the facts must be such as in law tend to make out the cause of complaint. It is not for the party to draw his own inferences. ■ He must state matters which would justify others in drawing them. The rules heretofore laid down in this court, have always required the facts themselves to appear upon knowledge. No other rule would preserve the constitutional right against warrants not based on probable canse, supported by oath or affirmation. Const. Art. 6, § 26. Proctor v. Prout, 17 Mich., 473.

The judgment must be reversed with costs.

The other Justices concurred.