Terrill v. Grove

Circuit Court of the 15th Circuit of Michigan

Terrill v. Grove

2 Mich. N.P. 3

CourtCircuit Court of the 15th Circuit of Michigan

DecidedOctober 15, 1870

StatusPublished

This text of 2 Mich. N.P. 3 (Terrill v. Grove) is published on Counsel Stack Legal Research, covering Circuit Court of the 15th Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Terrill v. Grove, 2 Mich. N.P. 3 (Mich. Super. Ct. 1870).

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Opinion

Ry the Court,

TJpson, J.

-To authorize the plaintiff to commence his action by capias ad respondendum in this case, under the Statute, it was necessary for him to proeure'from the Circuit Judge or Circuit Court Commissioner, an order to hold to bail, to be endorsed on the writ, upon an affidavit to be made by the plaintiff or some person in his behalf, showing the nature of the plaintiff’s claim. 2 Comp. Laws, § § 4121, 4122.

[6]*6If not, and if this is an action for damages arising upon contract, express or implied, then the statute has made no provision for a capias in such cases of debt arising out of or founded on a contract, express or implied, where fraud is the gist of the action, as specified in Section 33, of Article 6, of the Constitution of this State, as § 4119, 2 Comp. Laws, does not include such a case in enumerating the instances in cases of contract in which a capias may issue.

This affidavit to hold to bail must be positive, and must make out & prima facie ease against the defendant. Saterlee vs. Lynch, 6 Hill, 228.

See also note a to same case and the cases there cited. Graham’s Prac., 160; 1 Tidd’s Prac., 172; 1 Sellon’s Prac., 35.

The affidavit, to show a cause of action in this case, should have alleged in substance that the defendant knew the representations to be false, and that they were made by him with the intent to deceive and defraud the plaintiff. 1 Chitty's Pl., 388; 2 Chitty's Pl., 687; 3 Term Reports, 51; 2 Wend., 385; 7 Wend., 380; 11 Wend., 374; 1 Doug. Mich., 51.

This affidavit not containing any of these allegations, is fatally defective, and was insufficient to authorize an order to hold to bail and to justify the arrest of the defendant; and as under our practice in this State, as regulated by statute, if the arrest and special bail cannot both be required, a capias cannot be issued, and as under our statutes we have no non-bailable capias for the commencement of suits, (2 Comp. Laws, § § 4119, 4121 and 4122; Green's Prac., § 115; Ortman vs. Dustin, 1 Mich. Nisi Prius, 101,) therefore the motion must be granted, and the capias in this case with the subsequent proceedings therein must be set aside with costs, the defendant stipulating not to bring any suit against the plaintiff or the Sheriff.

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Ry the Court,

TJpson, J.

-To authorize the plaintiff to commence his action by capias ad respondendum in this case, under the Statute, it was necessary for him to proeure'from the Circuit Judge or Circuit Court Commissioner, an order to hold to bail, to be endorsed on the writ, upon an affidavit to be made by the plaintiff or some person in his behalf, showing the nature of the plaintiff’s claim. 2 Comp. Laws, § § 4121, 4122.

[6]*6If not, and if this is an action for damages arising upon contract, express or implied, then the statute has made no provision for a capias in such cases of debt arising out of or founded on a contract, express or implied, where fraud is the gist of the action, as specified in Section 33, of Article 6, of the Constitution of this State, as § 4119, 2 Comp. Laws, does not include such a case in enumerating the instances in cases of contract in which a capias may issue.

This affidavit to hold to bail must be positive, and must make out & prima facie ease against the defendant. Saterlee vs. Lynch, 6 Hill, 228.

See also note a to same case and the cases there cited. Graham’s Prac., 160; 1 Tidd’s Prac., 172; 1 Sellon’s Prac., 35.

The affidavit, to show a cause of action in this case, should have alleged in substance that the defendant knew the representations to be false, and that they were made by him with the intent to deceive and defraud the plaintiff. 1 Chitty's Pl., 388; 2 Chitty's Pl., 687; 3 Term Reports, 51; 2 Wend., 385; 7 Wend., 380; 11 Wend., 374; 1 Doug. Mich., 51.

This affidavit not containing any of these allegations, is fatally defective, and was insufficient to authorize an order to hold to bail and to justify the arrest of the defendant; and as under our practice in this State, as regulated by statute, if the arrest and special bail cannot both be required, a capias cannot be issued, and as under our statutes we have no non-bailable capias for the commencement of suits, (2 Comp. Laws, § § 4119, 4121 and 4122; Green's Prac., § 115; Ortman vs. Dustin, 1 Mich. Nisi Prius, 101,) therefore the motion must be granted, and the capias in this case with the subsequent proceedings therein must be set aside with costs, the defendant stipulating not to bring any suit against the plaintiff or the Sheriff.

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Bluebook (online)

2 Mich. N.P. 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terrill-v-grove-micirct15-1870.

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