192 Mich. 129 | Mich. | 1916
Plaintiff caused the arrest of defendant on a capias ad respondendum to answer to an action of trespass on the case. Defendant was apprehended and gave the required bail to the sheriff, and was released from custody. Subsequently bail to the action was perfected. A trial of the matter in the circuit court resulted in a judgment for plaintiff of $1,000, on the 27th day of February, 1915. On the 18th day of March following the defendant was surrendered into the custody of the sheriff by his bondsmen, and the bail was duly exonerated. On the 17th day of April, an execution against the property of defendant was issued. This was returned by the sheriff unsatisfied on the 15th day of May. Subsequently, and on the 29th day of May, upon the application of plaintiff’s attorney, the defendant was ordered to appear before the court and disclose under oath as to his property and choses in action, under chapter 299, 3 Comp. Laws (3 Comp. Laws 1915, § 13378 et seq.). Objection was
The sole question presented is whether defendant can be subjected to the provisions of chapter 299 while he is in the custody of the sheriff by virtue of process in the same case. Under the statute which was in force when the arrest was made and the judgment rendered plaintiff was required to sue out an'execution against the goods and chattels and property of the defendant before an execution could issue against the body of the defendant. 3 Comp. Laws, § 10303 (3 Comp. Laws 1915, § 12841). This statute was complied with, and execution was issued and returned unsatisfied. Within three months after the execution was returned unsatisfied it was the duty of the plaintiff to charge defendant in execution (3 Comp. Laws, § 10412 [3 Comp. Laws 1915, § 12839]), in default of which, unless good cause were shown, the defendant could be discharged (3 Comp. Laws, § 10413 [3 Comp. Laws 1915, § 12840]). Before this time arrived, and while the,defendant was still held in custody by force of the writ of capias ad respondendum, the order was made requiring the defendant to appear and disclose under oath as to his credits and choses in action.
Had the defendant been in custody under a capias ad satisfaciendum when the order was made, it would have been of no force. The rule of the common law is that, when a creditor has the body of his debtor in execution, his right to proceed against his property by virtue of the judgment is suspended. Tappan v. Evans, 11 N. H. 311; Stilwell v. Van Epps, 1 Paige (N. Y.), 615; Jackson v. Benedict, 13 Johns. (N. Y.) 533.
The writ will be dismissed, with costs to the defendant in certiorari.