
    In the matter of Charles D. Stephenson.
    
      -Affidavit for capias: Jurisdictional defects: Waiver: Special bail. Jurisdictional defects in an affidavit for a capias are not waived by putting in special bail and pleading in tlie cause.
    
      Affidavit: Actions arising upon contract: Statute construed: Capias: Arrest. An affidavit for a capias, which sets out a claim against the defendant by reason of his having, ás superintendent of a railroad company, collected moneys belonging to the company and failed'on demand to account for and pay over the same, makes out a case of an action “arising upon contract” within the meaning of that phrase as used in the statute (Comp. L. 1871, § 578U)', and the cause of action thus set out not being one of those enumerated by the statute as alone authorized to be commenced by capias, an arrest on a capias issued on such an affidavit is unwarranted and illegal.
    
      Heard and decided April 29.
    
    
      Habeas corpus and Certiorari.
    
    The prisoner was held by the sheriff of Van Burén county by virtue of his surrender by his special bail in an action commenced by capias by tbe Paw Paw railroad company against said Stephenson, and now pending in tbe Van Burén circuit. The case made by the affidavit on which the capias issued was that 'Stephenson as superintendent of the plaintiff company bad collected large sums of money belonging to tbe company wliicb be bad failed to account for and pay over on demand. Tbe defendant had appeared in the-canse by putting in special bail, and bad also pleaded-to tbe declaration. He was afterwards delivered over in exoneration of bis bail.
    
      Alfred J. Mills, for petitioner.
    
      Arthur Brown, contra.
    
   The Coubt

held that tbe putting in special bail and pleading in tbe canse did not operate as a waiver of jurisdictional' defects in tbe affidavit which is tbe basis of tbe origina! arrest; that tbe case made by tbe affidavit in question is one of an action “arising upon contract” within the meaning of that phrase as used in tbe statute (Clomp. L. 1871, § 5734), and not being one of those actions there enumerated as alone authorized to be commenced by capias, that the arrest and imprisonment was unwarranted and illegal.

Prisoner discharged.  