Proctor v. Prout

• Decision Date: 07 January 1869
• Citation: 17 Mich. 473
• Court: Michigan Supreme Court
• Parties: William H. Proctor v. William C. Prout

17 Mich. 473

William H. Proctor v. William C. Prout

Supreme Court of Michigan

January 7, 1869

Heard January 7, 1869

Certiorari to Martin Hawley, a justice of the peace in Branch county.

This was a proceeding under the fraudulent debtors' act--Comp. L., § 5390--and was based upon the following affidavit:

"STATE OF MICHIGAN, "Branch County.

ss.

"William C. Prout, being duly sworn, deposes and says that William H Proctor and Oliver A. Proctor are justly indebted to this deponent in the sum of $ 170, upon a judgment rendered by Martin Hawley, Esq., a justice of the peace, of the township of Quincy, in said county, on the 14th day of December, 1867 upon a contract for goods and personal property, sold and delivered to the said William H. Proctor and Oliver A Proctor, for which demand the said William H. Proctor and Oliver A. Proctor can not be arrested or imprisoned according to the provisions of Comp. L., Ch. 166, of this state, entitled 'Of the punishment of fraudulent debtors;' and this deponent further says that he has good reason to believe, and does verily believe that the said William H. Proctor and Oliver A. Proctor are about to remove their property out of the jurisdiction of the court in which said suit is brought with intent to defraud their creditors, and that said defendants have property and rights in action which they fraudulently conceal, and that they have money and evidences of debt which they unjustly refuse to apply to the payment of said judgment which was rendered against them, and in favor of this complainant; also, that they have assigned, removed and disposed of their property with intent to defraud their creditors; and the grounds for that belief are that they refuse to pay said debt or judgment, and that Oliver A. Proctor has left said county and taken all or a part of his property with him to parts unknown to this complainant, or concealed the same; and that William H. Proctor stated that he would not pay said judgment, and has taken notes in his mother's name for moneys belonging to him, and stated that he did it to keep it from his creditors, and that he now resides in the city of Coldwater in said county, and keeps his property secreted or in the name of his wife, as this complainant has been credibly informed, to prevent paying his debts.

"William C. Prout.

"Sworn and subscribed to this 3d day of April, 1868, before me.

"M. Hawley,

"Justice of the Peace."

Judgment or determination of the justice reversed, with costs of both courts to the plaintiff in the certiorari.

Parker & Parsons, and Moore & Griffin, for plaintiff in error:

The affidavit in this case is upon information and belief, and gave the commissioner no jurisdiction: 10 Wend. 421; 14 Id. 237; 21 Id. 672; 6 Hill 429; 7 Id. 187; 3 Barb. 175; 17 Id. 179.

Shipman & Loveridge, for defendant in error,

Cited 14 Wend. 237; 20 Id. 77, 145; 6 Hill 429; 6 How. Pr., 109; 9 Id. 255; 1 Barb 552; 5 Id. 575; 15 Id. 546; 16 Id. 367; 14 Mich. 346, 498.

OPINION

Christiancy J.:

This was a proceeding instituted by Prout before the justice against William H. Proctor and Oliver A. Proctor, under the act for the punishment of fraudulent debtors--Comp. L., Ch. 166--and the defendant, William H. Proctor, brings the case before us upon a certiorari to the justice.

Prout's claim purports to be based upon a judgment recovered by him before the justice against both the Proctors upon contract. The warrant was issued against both, but served only upon William H., and all the proceedings before the justice under the warrant were against him alone.

On the hearing before the justice, he objected to the sufficiency of the affidavit on which the warrant issued, because it did not state any sufficient evidence to give the justice jurisdiction as against him.

By the fourth section of the act the warrant is not to be issued "without satisfactory evidence by the affidavit of the plaintiff, or some other person," of the facts required by the statute, and while the affidavit may state generally the grounds of the application upon belief only, we understand the rule to be well settled that, to show the grounds of his belief, he must set forth such facts and circumstances within his own knowledge, as will authorize the officer who is to issue the warrant to find such a state of facts as required by the statute to authorize the proceeding. And if the plaintiff is not himself personally cognizant of the facts and circumstances relied upon, he must procure the affidavit of some one who is thus personally cognizant of them. The warrant can not be issued upon hearsay, nor upon any statement, however positive, founded upon hearsay.

And in the ex parte application for this extraordinary remedy, there being no opportunity for cross-examination as to the matters set forth in the affidavit, we think the true and only safe rule is that the affidavit should show upon its face, with reasonable certainty, that the affiant is personally cognizant of the facts set forth. And that if, from the nature of the facts under the circumstances disclosed, such personal knowledge can not fairly be presumed, then it ought,...