Farwell v. Fox

18 Mich. 166 | Mich. | 1869

Cooley Ch. J.

Since the case of Stevens v. Osman, 1 Mich. 92, a very strict practice has prevailed in this state regarding the description of property in replevin suits; and we were at first not disposed to unsettle that practice by going back to that which prevailed before. A little reflection, however, has satisfied us that the rule, as generally understood, is needlessly stringent, and that no good purpose is subserved by requiring a more particular description than has been given in this case.

The case of Stevens v. Osman is authority only for holding that in replevin for grain or other chattels defined by measurement, a description indefinite in point of quantity, and not othenvise made certain, is fatally defective. The present case does not fall within that ruling. What the Court say concerning the necessity of the writ containing such description of the goods as will enable the officer to distinguish them from other property of a like nature, has reference to the indefiniteness there appearing, and can be applied to cases like the present, only so far as the supposed defect in the description produces a similar difficulty of identification.

It is impossible, in most cases, to give such description of property as will absolutely separate and distinguish it from all other property of a similar nature. The number and specific names of chattels can be readily given, and in most cases other characteristics can be mentioned3; but they would only tend to reduce the number of similar chattels which would fall within the description, and would not absolutely distinguish the articles demanded from all other chattels. In replevin for these oxen, for instance, if the plaintiff had described them as red oxen, he would have specified a characteristic, which would preclude the writ being applied to animals of a different color, but he would nevertheless have only defined the class to which those which are the subject of the suit belonged, and the description would be only one degree less indefinite than if the color were not mentioned. Nevertheless such a description would probably not be objected to as insufficient, though it is apparent that it would be. impossible for the officer from this alone to distinguish and take possession of the property intended. In practice he is. not usually expected to do this, but the plaintiff, or some one on his behalf, is present at the seizure, and points out the articles to which the affidavit relates. The defendant has no interest in a more particular description than appears in this record; and as the only result of demanding more particularity would be to subject parties to bills of costs where they had only followed the usual books of precedents, we think it proper to affirm the judgment of the court below, which held the declaration sufficient.

The other Justices concurred.