
    Edward S. Pease v. Charles E. Pendell.
    . Arrest — Affidavit for capias — Entry of default.
    
    l. An affidavit for a capias for assault is sufficient if it states facts that would make a prima facie case on a criminal trial.
    3. It is unimportant that a capias purports to be in an action of trespass on the case, if the affidavit therefor recites facts sufficient to sustain it as a capias in trespass.
    3. Entry of default in the condition of a bail bond is only the formal expression of a plaintiffs determination to rely upon the breach; the beginning of suit would be as effectual. And where the condition is to put in special bail within a fixed time such bail cannot be put in after suit upon the bond is actually begun, even if default was not entered.
    Error to Saginaw. (Cage, J.)
    June 4. — June 10.
    Dbbt. Defendants bring error.
    Affirmed.
    
      Edget dé Brooks for appellant.
    
      Holden dé Harris for appellee.
    An affidavit to hold to bail is sufficient if it clearly discloses a case of assault and battery and alleges damages : Wilcox v. Ismon 34 Mich. 268 ; proceeding in the original suit is equivalent to an entry of default on a bail bond ; Huguet v. Ballet 1 Cai. 55 ; Prior m. Bod/rie 49 Mich. 200; Beecker v. Simmons Y Johns. 119.
   Cooley, C. J.

Action upon a bail-bond taken by the sheriff in making an arrest upon a capias. The affidavit upon which the arrest was made was as follows:

State of Michigan, County of Saginaw — ss.: EdwardS. Pease, beingduly sworn, deposes and says he is a resident of the city of East Saginaw, in said county of Saginaw, and that on the twenty-third day of February, A. D. 1883, at the village of Eoscommon, in the county of Eoscommon, State of Michigan, John Mahoney, late of the said village of Eoscommon, with force and arms accosted and violently attacked this deponent upon the street in the said village of Eoscommon, where this deponent then was, and without any provocation whatever, then and there unlawfully laid hold of this -deponent, and with great force and violence knocked him down, and with his hands and feet dealt this deponent several'' violent blows upon his head, face and other parts of his body, and gouged the eyes of this deponent, and then and therewith force and arms in and upon him, this deponent, did make an assault, and did beat, bruise, wound, ill-treat and!' commit an assault and battery upon this deponent, by reason whereof this deponent became and was sick and was disabled from attending to his affairs and business for a long space of time, to wit, for the space of three weeks then next ensuing and suffered great bodily pain and mental distress, and in consequence of such beating, bruising, wounding and ill-treating this deponent was compelled to and did expend a large sum of money in procuring medicines, medical aid, and-nursing and was damaged thereby, by loss of business and expenditures of money in restoring himself to health and curing himself from the injuries so inflicted, and in mental distress and bodily pain, in a large amount, to wit, the sum of ten thousand dollars. Edward S. Pease.
Subscribed and sworn to before me this third day of April,. A. D. 1883.
John A. Steinlein,
Notary Public in and for Saginaw County, Mich.”

Pail was ordered in the case in the sum of $1000, and the-.defendants in this case became sureties to the officer, andMahoney was discharged from the arrest. How. Stat. §§' 7304, 7306. The condition of the bail-bond was to put in-special bail within twenty days after the return-day of the-writ; but this was not done, and the present suit was instituted and a recovery had for the penalty of the bond. No-default was entered before bringing this suit. After suit was brought, the defendant in the original suit, assuming that because of the want of default, he might proceed to give and' perfect special bail, went through the formality of doing so, and of being surrendered by the sureties. The plaintiff taking no notice of the proceedings, his default was entered. This attempt to give bail and to default the plaintiff subsequent to the commencement of the present suit, were held' by the court below to be of no force.

The defendants in this Court take the ground that the bail-bond given to the sheriff was void, because the affidavit for-arrest was not sufficiently specific in its recitals of the facts. To this the cases of Proctor v. Prout 17 Mich. 473; People v. McAllister 19 Mich. 215; Brown v. Kelley 20 Mich. 33; Badger v. Reade 39 Mich. 771; Sheridan v. Briggs 53 Mich. 569 and Stensrud v. Delamater 56 Mich. 144, are cited. None of them is in point. In every case referred to, the affidavit, which was held insufficient, stated conclusions ■only, not facts. But this affidavit states facts sufficient, if sworn to in a criminal trial, to make out a prima facie case.

The capias issued in the case is objected to as being in trespass on the case, and the variance between that and the affidavit is relied on. But though the capias probably by inadvertence designates the action as trespass on the caso it recites sufficiently the facts set out in the affidavit to make it a capias in trespass. The defendants also rely in this Court, as they did in the court below, on the right to put in and perfect special bail at any time before default was entered for failure to do so, and De Myer v. McGonegal 32 Mich. 121, is cited. But that case is not in point, for there no suit had been brought on the bond to the officer. The entry of default is only the formal expression of the plaintiff’s determination to rely upon the breach in the condition of the bond, and the commencement of suit must be equally effectual for that purpose.

Some other objections are made to the recovery, but they •do not appear to us to merit special notice.

The judgment must be affirmed.

The other Justices concurred.  