Gardiner v. Wayne Circuit Judge

155 Mich. 414 | Mich. | 1909

Grant, J.

(after stating the facts). It appears from Mr. Stevens’ affidavit for the writ that he signed the agreement of November 8th with knowledge of all the differences between that and the unexecuted agreement of September 15th; at least he makes no assertion that he was not aware of them. He had both in his possession, and yet afterwards he made a payment, thereby ratifying the terms of the executed contract. That part of the affidavit is therefore of no significance, and affords no justification whatever for the issuance of the capias. That part of the affidavit stating that he has been informed by the Union Trust Company that Mr. Gardiner has forfeited his claim to the land is of course based upon hearsay. Not even the notice or letter, if any was received, is attached to the affidavit. All the knowledge affiant had was received from some officer of the Union Trust Company. This is purely hearsay, and affords no foundation for depriving a man of his liberty. The statement that affiant had learned that Gardiner was not the owner of the land in fee simple is not a statement of personal knowledge. It was incumbent upon affiant to show the source of his information, and to attach the affidavit of the person who had the requisite knowledge. The affidavit does not state that he has made an examination of the record, or that Gardiner admitted that he had not the title; nor is the contract, or a copy of it, attached to the writ, so that the court can determine what representations were made in it. The affidavit was not sufficient to justify the arrest of the respondent under the repeated decisions of this court. Church v. Calhoun Circuit Judge, 129 Mich. 126, and authorities there cited.

The writ will issue.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.