Error
from Berrien county.
The
objections are too indefinite. Michigan State Ins. Co. v
Soule, 51 Mich. 313; S.C. 16 N.W. 662; Jochen v
Tibbells, 50 Mich. 35; S.C. 14 N.W. 690.
Objections
omitted in the motion are waived. Evanston v. Gunn,
99 U.S. 665.
The
affidavit is sufficient to authorize arrest. Supe v
Francis, 49 Mich. 266; S.C. 13 N.W. 584; Proctor v.
Prout, 17 Mich. 473; Badger v. Reade, 39 Mich.
775.
The
evidence justified the arrest. Steward v. Biddlecum,
2 N.Y. 104; Miller v. Brinkerhoff, 4 Denio, 120;
Supe v. Francis, supra; Ex parte Davis, 23 N.W. 361;
People v. Lynch, 29 Mich. 278.
O.W. Coolridge, for defendant.
The
affidavit is void, (Proctor v. Prout, supra; Badger v.
Reade, 39 Mich. 772; Brown v. Kelley, 20 Mich.
27,) and alleges no specific facts, (People v.
McAllister, 19 Mich. 215.
The
bond was without consideration. Butts v. Davis, 50
Mich. 310; S.C. 15 N.W. 486; Supe v. Francis, supra;
Broadhead v. McConnell, 3 Barb. 175; Cadwell v.
Colgate, 7 Barb. 253; also Townsend v. People,
14 Mich. 388.
SHERWOOD
J.
On the
twelfth day of February, 1874, the plaintiff in this case
recovered a judgment against the defendant, Patrick Curran,
in the circuit court for the county of Berrien for the sum of
$477.58. Upon this judgment execution was duly issued, and
prior to June 5, 1875, was returned
unsatisfied, and on that day the plaintiff commenced
proceedings against the defendant before a circuit court
commissioner under the fraudulent debtors' act, and made
the following affidavit under subdivision 2 of section 8753,
How.St., (to obtain a warrant against the defendant,) viz.:
"State
of Michigan, County of Berrien--ss.: John C. Marble, being
duly sworn, deposes and says that Patrick Curran, of the
township of Bertrand, in said county, is justly indebted to
him in the sum of six hundred and ninety-three and 41-100
dollars upon a judgment rendered against him in the circuit
court for the county of Berrien on the twelfth day of
February, 1874,--for the sum of four hundred and
seventy-seven and 58-100 dollars (477.58) debt or damages,
and fifty-one and 50-100 dollars costs of suit, and
interest to this time; that such judgment was founded on
contract express, being upon two promissory notes, for
which the said Patrick Curran cannot be arrested or
imprisoned according to the provisions of chapter one
hundred and forty-one of the Revised Statutes of 1846 of
this state, being chapter 230 of the Compiled Laws of 1871.
This deponent further says that he has good reason to
believe, and does believe, that the said Patrick Curran has
rights in action, money, and evidences of debt which he
unjustly refuses to apply to the payment of said judgment.
This deponent further says that the facts and circumstances
constituting the grounds of his belief are that the said
Patrick Curran, before the time of the conveyance
hereinafter mentioned, had lands worth at least twelve
thousand dollars, and, as appears by the records in the
office of the register of deeds in said county of Berrien,
on the eighteenth day of June, 1870, for the consideration
of two thousand dollars, conveyed to Michael Curran, Thomas
Curran, and John Curran, his sons, 206 23-100 acres of
land, which deed was recorded on the thirteenth day of
January, 1871, in the office of said register, in Liber 42
of Deeds, on page 91, and on the same day conveyed to
Elizabeth Curran and Robert Curran, his son and daughter,
for the nominal consideration of two hundred dollars, as
appears by the record of such conveyance in the office of
said register, one hundred acres of land, which deed was on
the same day recorded in the office of said register of
deeds, in Liber 40, on page 407, and on the seventh day of
September,
1870, by deed, said Patrick Curran conveyed to Margaret
Curran, another daughter, forty acres of
land for the nominal sum of two hundred dollars, which deed
of conveyance was also recorded on said thirteenth day of
January, 1871, in the office of said register, in Liber 43,
on page 293.
"This
deponent further says that, as he believes, said lands were
well worth twelve thousand dollars; that they were all
situate in Bertrand, in said county; that to all
appearances said Patrick Curran now has title to no more
land than is sufficient for a homestead.
"This
deponent further says that, as he is informed and believes,
said Curran has the money received for said lands invested
in some way whereby he receives or may receive the avails
thereof; that he does no business, and appears to have
sufficient for all private purposes.
"This
deponent further says that he has been informed by said
Curran and believes that at or about the time of the making
of the deeds of conveyance aforesaid, said Michael Curran,
Thomas Curran, John Curran, and Robert J. Curran executed
and delivered to said Patrick Curran their joint bond,
therein covenanting to pay to said Patrick Curran, or to
his wife, the sum of twelve hundred dollars per year so
long as said Patrick Curran or his said wife should live;
and deponent further says that said Patrick and his wife
appear to be economical and to enjoy good health, and he
believes that one-half of the said twelve hundred dollars
has fully supported them during each year.
"This
deponent further says that on the fourth day of June, 1875,
he requested said Patrick Curran to pay said money due upon
said judgment, and to apply said bond to the payment of the
same, but he unjustly refused so to do. He further says
that execution has been issued on said judgment, and
delivered to the sheriff of said county, and that he made
return thereon that said Patrick Curran had no goods,
lands, or tenements from which he could make said money,
and that said Curran refused to pay said money to said
sheriff; and further this deponent says not. JOHN C.
MARBLE.
"Subscribed
and sworn to before me this fifth day of June, 1875.
"JAMES A. KELLOGG,
"Circuit
Court Commissioner for Berrien County, Michigan."
Upon
the filing of this complaint the commissioner issued a
warrant, and the defendant was brought before him. His counsel at once made a motion for his release and
discharge on the grounds that the complaint did not state
facts sufficient to justify the issuing of the warrant for
his arrest, and that the commissioner had no jurisdiction in
the case. The defendant's motion was overruled by the
commissioner, and the defendant made answer to the complaint
admitted that he had conveyed lands to his children, and had
taken a bond back from them securing the payment of money to
him for his support, and that of his family, and that he had
received thereon moneys for that purpose, and used it
therefor, and that it was necessary for him so to do, but
denied all fraud, or intent to defraud...
