34 Mich. 256 | Mich. | 1876
Gilman brought an action of trespass on the case against Dunn for taking and converting a certain bay mare. Defendant pleaded the general issue, with a notice of justification.
Upon the trial it appeared that Gilman claimed title to the property through one Jacobs. Jacobs admitted having made some sort of a conditional agreement to sell to Gilman’s vendor, but that the agreement had not been consummated. It also appeared that afterwards, and on the 18th of January, 1875, Jacobs appeared before a justice of the peace and made complaint that the property in cpiestion had been stolen from him, and that he had reason to believe it was then concealed about the premises of one Bondie and Gilman, and he prayed that a search warrant might issue. A search warrant was issued by the justice and delivered to Dunn, who was then a constable. On the same day he made return thereon that he had searched and found the property upon the premises as described in the writ, and had the same then before the court as he was therein commanded. It also appeared that the justice thereupon proceeded to examine witnesses, and as appeared from the entry in his docket, he was of opinion from the evidence in the case that the property belonged to Jacobs; that it had been stolen by some person unknown, and concealed upon the premises described in the warrant.;
It is not necessary to set forth the complaint and warrant, as no question was made as to their sufficiency, either in form or substance, nor was the regularity or validity of the proceedings thereunder before the justice questioned, so that we have no occasion to consider them.
Defendant Dunn,, in searching for the property, seizing and taking it before the justice, was acting ministerially under a writ valid upon its face and issued by a court having jurisdiction over the subject matter. It was his duty upon the receipt of this writ to proceed at once, and without questioning its validity, to search for, take and hold this identical property. Had he refused so to do he would by so doing have rendered himself liable to a penalty. — 2 Govyp. Laws, § 7680. Having seized the property in obedience to the command of his writ, it became his duty to safely keep the same, under the direction of the court, to be used as evidence on any trial, and the statute further directs that as soon as may be afterwards-such property shall be-restored to the owner thereof. — § 8003. The justice evidently endeavored to follow the provisions of the statute, and neither his jurisdiction nor the regularity or validity of his proceedings have been questioned. Dunn seems to have acted throughout officially, and to have followed in all respects in good faith the instructions given him in his writ and the official order of the justice made during the progress of the case. He cannot, therefore, be held liable in this action under such circumstances, although it should in this case be made clearly to appear that the property had not boon stolen, that the complainant was not entitled to its possession, but that the owner of the premises where it was found was in truth and fact the owner of the property.-
The judgment must be reversed, with costs, and a new trial granted.