
    The People ex rel. William Moore v. Anthony Kehl.
    
      Circuit Court Commissioned': Habeas corpus: Notice to crédito1)': Waived\ In a habeas corpus proceeding before a Circuit Court Commissioner, in behalf of a party held under an execution against the body, a plaintiff in execution is entitled to four days notice before any order of discharge is made; and the appearance of his attorney for the purpose of objecting to the hearing, for the want of such notice, is no waiver of the same.
    
      Alias execution in trespass may issue against the body. In an action of trespass, where an original execution can issue against the body of a defendant, an alias execution may also issue against the body upon the return of the previous one, “not found.”
    
      Heard and decided April 25th.
    
    Certiorari to William S. Atwood, a Circuit Court Commissioner for Wayne county.
    This was an application to review proceedings before a Circuit Court Commissioner upon habeas corpus.
    Moore sued Kehl in an action of trespass before a justice of the peace, and obtained judgment. An execution issued against the body of Kehl, but was returned “ not found.” Afterwards, a second execution was issued upon the same judgment, and upon which the defendant Kehl was arreste and imprisoned in the county jail. Kehl sued out a writ of habeas corpus, returnable before the Circuit Court Commissioner, and moved to be discharged, on the ground that he was arrested upon a second execution, and which he claimed could not be done under the statute. No notice was given to Moore, the plaintiff in the execution, of the issuing of the writ; but his attorney appears to have made a preliminary objection, on the ground that Moore was entitled, under the statute, to four days notice of the time and place at which said' writ was returnable.
    The commissioner overruled the objection, and treated the appearance of Moore’s attorney as a waiver of notice. He also held the second execution void, and discharged the prisoner.
    
      Moore & Griffin, for the relator.
    
      M. Crofoot, for the respondent.
   Per Curiam.

The plaintiff’ in the execution was entitled, under the statute — 2 Comp. L. § 5237 — to four days notice of the time and place at which the writ was returnable before any order of discharge could be made.

The appearance of the plaintiff’s attorney for the purpose of objecting to the hearing of the writ, until such notice had been given to the plaintiff can not be treated as a waiver.

In an action of trespass, when an original execution can issue against the body of a defendant, an alias execution may also issue against the body upon the return of the previous one, “not found.”

Ordered, that the proceedings of the commissioner be reversed, and the prisoner remanded to the custody of the sheriff.  