Pixley v. Berrien Circuit Judge

Grant, C. J. (after starting the facts). 1. The facts set forth in the affidavit fully j ustify the order to hold to bail. It is not important to set them forth. 2. There was a service of the writ, but it was a defective one. The statute in existence prior to June 23, 1899, provided that the writ should be served “by arresting the body of the defendant, and keeping him in his custody until discharged according to law.” Act No. 168 of the Public Acts of 1899, approved June 23d, and given immediate effect, required that the officer making the arrest should also “serve a copy of the writ, and of the affidavit or affidavits upon which said writ is founded, upon said defendant.” Undoubtedly, neither the officer nor the attorney knew of the act at the time of the arrest; but this would not avail if this provision of the statute were mandatory. A similar provision has been held directory merely. Barker v. Cook, 40 Barb. 254. So a delay in serving a copy of the writ and affidavits is not fatal. Ilsley v. Harris, 10 Wis. 95. These authorities are cited in 1 Stevens, Mich. Prac. 484. The objection is purely technical, and the failure to serve the copies did not prejudice the defendant in the writ. Either he or his attorney very soon obtained copies of them, for a motion to quash was immediately made, and notice served for hearing upon the 10th of July. We think the service was not fatally defective, and did not deprive the court of jurisdiction to proceed with the case. The writ will issue. The other Justices concurred.