RING . BURT ET AL.

Admitting this agreement, and its part performance, to be fully proved, and that the deed was made in pursuance of it, we are unable to perceive how it can, in any manner, affect the right of complainant to a homestead in the premises.

At common law, a married woman is incapable of entering into any binding contract affecting any right she may have in her husband's property, and the common law disability still continues in this state, except as it has been removed by statute. The statutes securing to her her separate property, have, as to such sole or separate property, removed the disability and given her all the powers of a femme sole.

But the right to a homestead in her husband's lands is no more in the nature of such sole property, than the right to dower; and there is a striking similarity between them, as to the question here involved. The only mode in which she can convey or encumber (or in any manner affect by contract) either of these rights during coverture, is by joining in a deed or mortgage with her husband, according to the statutes. Her agreement therefore, if made as claimed, was simply void. The defendants being in possession, and the forty acres of land with the dwelling house and improvements being admitted to be worth more than $1,500, this bill is the proper remedy for having the homestead ascertained and set off to her.- Beecher v. Baldy, 7 Mich. 488.

The decree of the court below dismissing the bill must be reversed with costs of both courts, and a decree must be entered in this court giving to her the right to a homestead to be ascertained and set off according to the prayer of the bill, and declaring the deed of Ira Ring to Della Burt, void and of no effect as against complainant's rights to such homestead. And the case must be remitted to the court below for such further proceedings as may be necessary to carry this decree into effect.

The other Justices concurred.

PROCTOR v. PROUT.

William H. Proctor v. William C. Prout.

Fraudulent Debtor Act: Evidence on which warrant may issue.

In a complaint

under the fraudulent debtor act, the complainant 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 complainant is not himself personally cognizant of the facts and circumstances relied upon, he must procure the affildavit of some one who is thus cognizant of them.

Such a warrant can not be issued upon hearsay, nor upon any statement, however positive, founded upon hearsay.

The affidavit ought to show upon its face, with reasonable certainty, that the affiant is personally cognizant of the facts set forth.

What affidavit is insufficient. An affidavit by the complainant that his debtors, W. and O., refuse to pay their debt; that O. has left the county, and taken all or a part of his property with him to parts unknown to the complainant, or concealed the same; and that W. stated he would not pay the debt, and had taken notes in his mother's name for money belonging to him, and stated that he did it to keep it from his creditors, and that he keeps his property secreted in the name of his wife, as the affiant has been credibly informed, to prevent paying his debts-does not show with reasonable certainty that the affiant is personally coguizant of the facts set forth, and is insufficient.

Heard and decided January 7th.

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:

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 fradulent debtors;' and this deponent further says that he has good reason to believe, and does verily believe that

17 MICH.- F2.

PROCTOR v. PROUT.

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."

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.

PROCTOR v. PROUT.

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 II., 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

PROCTOR v. PROUT.

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, in some manner, to be affirmatively shown in the affidavit.

The portion of the affidavit which purports to set forth the reasons for the plaintiff's belief is as follows: "Aud the grounds for that belief are that they (William H. and Oliver A. Proctor) refuse to pay said debt or judgment; 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 he would not pay said judgment, and has taken notes in his mother's name for money 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 in the name of his wife, as this deponent has been credibly informed, to prevent paying his debts."

Of this affidavit, it will be noticed: First, That it does not show that the two Proctors had any joint property, nor anything from which such an inference can be drawn. Second, The statement that "Oliver A. Proctor has left the county and taken his property, etc.," has no possible tendency to show that William H. Proctor has done the same, nor does it tend to sustain any of the charges contained in any part of the affidavit as against him.

The statement that William H. Proctor keeps his property secreted in the name of his wife, etc., is expressly declared to be upon information and belief, and need not, therefore, be noticed.

The only remaining portion which can possibly be claimed to prove facts and circumstances sustaining any ground upon which a warrant could issue, is, "that William H. Proctor stated that he would not pay said judgment, and has taken notes in his mother's name for money