Conrad v. Van Buren Circuit Judge

Blair, J. (after stating the facts). In my opinion, this affidavit was not sufficient to justify the issuance of the writ and the arrest of the relator thereunder. The Constitution of the State (article 6, § 26) provides that “ no warrant to search any place or to seize any person or things shall issue without describing them nor without probable cause, supported by oath or affirmation.” In Brown v. Kelley, 20 Mich. 27, this court had occasion to construe this provision of the Constitution as applied to a [496] warrant issued by a justice of the peace upon an affidavit setting out the facts relied on in the following words: “That heretofore, to wit, on the seventeenth day of September, 1866, he placed in the hands of Jacob L. Brown the sum of three hundred dollars for safe keeping, to be kept by the said Jacob L. Brown until such time as this deponent should call for it; .that the said'Brown instead of restoring to this deponent the said sum of money so intrusted to him, converted two hundred dollars of the same to his own use and now wholly refuses to return the same to this deponent.” Chief Justice Campbell, writing the opinion of the court, says: “The affidavit is clearly defective.. The statute requires it to set forth the facts and circumstances, within, the knowledge of the person making the affidavit, constituting the grounds of the application. There is not a single fact or circumstance alleged here within the plaintiff’s knowledge, tending to make out a case. The oath is to a mere conclusion of law. It does not show when or where or by whom any demand was made, or even that any demand was made at all upon Brown, or how he met the demand, if made. The necessity of. such a showing is made more apparent in this case, when the plaintiff showed the facts and circumstances on the trial negativing the truth of his conclusions. The facts to be stated in the affidavit must be given in the same way as on the stand, by a distinct averment of each fact upon knowledge, and the facts must be such as in law tend to make out the cause of complaint. It is not for the party to draw his own inferences. He must state matters which would justify others in drawing them. The rules heretofore laid down in this court have always required the facts themselves to appear upon knowledge. No other rule would preserve the constitutional right against warrants not based on probable cause, supported by oath or affirmation. Const, art. 6, § 26; Proctor v. Prout, 17 Mich. 473.” In Sheridan v. Briggs, 53 Mich. 569, Mr. Justice Champlin, delivering the unanimous opinion of the court, says: “ The principle deducible from these cases is that an affidavit wfyich is used as the basis of a writ which will de [497] prive a person of his liberty, must not only set forth the facts and circumstances in detail, and not conclusions or inferences from facts, but they must be facts within the personal knowledge of the deponent. “Applying these principles to the affidavit in question, it appears to be defective in that portion which contradicts the alleged representations; their falsity does not appear to be alleged upon the personal knowledge of the deponent, and the statements respecting the falsity of the representations are too indefinite to possess the quality of legal proof. If the deponent was called to the witness stand for the purpose of proving the falsity of the representations, it would not be competent for him to testify in the general, loose, and vague manner contained in his affidavit. Such testimony would not be admissible to establish the fact that the representations made were false. The affidavit upon which a person is held to bail must be of the same legal quality, as evidence, as would be required at the trial to establish the facts set up or relied on for cause of arrest. “ The authorities referred to in plaintiff’s brief apply to cases of pleadings, and not to affidavits or examinations which form the basis of a writ or warrant to arrest or imprison a person. What would be quite sufficient in a pleading would, in. most instances, be entirely insufficient in an affidavit to hold to bail. The reason is obvious. In pleading,’ the evidence is not required to be set forth. But no arrest can be made except upon sworn evidence of facts.” The affidavit in the case before us is substantially a declaration in an action of trespass on the case for alienating the affections of the affiant’s wife. While it is not essential that it should be stated in the affidavit in so many words that the facts relied upon are within the personal knowledge of the affiant, it is essential that facts and not conclusions should be stated, which are necessarily, or, at least, apparently, within the knowledge of the affiant. The most important fact attempted to be stated in this affidavit, the debauching of the affiant’s wife, is manifestly an inference of the affiant from facts, and circumstances not disclosed by him in the affidavit, since it is stated that “said actions and doings took place at the said village of [498] Lawton and at other places in said county unknown to this deponent.” I do not think that the affidavit in the case now under consideration is as definite and positive as either of the affidavits considered in the cases above cited. See, also, Robinson v. Branch Circuit Judge, 142 Mich. 70. The writ is granted, with costs. Ostrander and Moore, JJ., concurred. Montgomery and Hooker, JJ., concurred in the result.