47 Mich. 624 | Mich. | 1882
Briggs sued DeLong in trespass before a justice of tbe peace and procured Ms arrest upon warrant issued under an affidavit wMcb, so far as is material, was of this tenor: “ That he has, as he has good reason to believe, a just cause of action against William DeLong, of the township of Paw Paw, in said county, against whom he applies for process by warrant for trespass committed by said William DeLong, upon lands owned by this deponent, said lands being,” etc.
On being brought before the justice DeLong appeared specially and moved to quash the proceedings for the lack of any legally sufficient showing to authorize the writ. The motion being denied he refused to plead, and judgment being rendered against Mm he took the case by ceriñora/ri to the circuit court where the judgment was affirmed.
The Constitution of this State declares that no warrant shall issue to arrest any person “without probable cause supported by oath or affirmation.” This requires facts to be set out, and mere belief without some showing as to its foundation is insufficient. Proctor v. Prout 17 Mich. 473; Brown v. Kelley 20 Mich. 27.
We cannot construe the Justices’ Act as intended to dispense with any requirement of the Constitution, which must always be complied with; and without such compliance an arrest is not to be resorted to.
In the present case the affidavit does not even follow the literal requirement of the statute, and does not state even a belief that DeLong has “committed á trespass.” Nothing is positively sworn to but a belief that plaintiff below had “ a just cause of action against DeLong,” without giving its foundation at all. But the other deficiency being so much more serious, we need not dwell on tMs.
The judgment of the circuit and justice’s courts must be reversed with costs of all the courts.
