In re Kelley

It is claimed on the part of the petitioner that the affidavit annexed to the writ is not *108sufficient in this, that it does not state that the proceedings against Alexander are at an end, and further, that the petition of this applicant and his proofs show that the proceedings are not at an end, and therefore it is claimed that the action cannot be maintained, or at least that there is no justification for the arrest of Kelly, and 27 Mich., 539, among other causes, is relied upon to support the claim made.

On the other side it is conceded that the position taken by counsel for petitioner is correct so far as it relates to malicious prosecution, but it is claimed that it does not apply to the action for false imprisonment, and 22 Mich., 300, is relied on. A distinction seems to be made in this case (in 22 Mich.,) between arrests in civil and in criminal causes. That was a civil cause. In Holcomb vs. Bonnell, 32 Mich., on page 8, the Supreme Court say, “It is supposed that decisions will be read, not as abstractions, but as propositions inseparably bound up with the particular issue and matters the court is then dealing with.” Applying this rale to the case in 22 Mich., it does not support the position taken, even if a fair reading of it does in terms support it, which is doubted.

And when it shall be determined that the complaining witness in a criminal case is liable to be proceeded against for false imprisonment as soon as the accused is arrested and held for trial, the criminal code had better be repealed at once, for very few men would be willing to make complaint if by so doing they could at once be made defendants in a civil suit.

The conclusion on this application, then, is that the affidavit does not justify the holding of the petitioner, *109especially when it appears, as in this case, that Alexander is now out on bail awaiting trial in the criminal case.

Petitioner discharged. See also Murphy vs. Walters, (34 Mich.)