Gass v. Van Wagner

63 Mich. 610 | Mich. | 1886

Campbell, O. J.

Plaintiff replevied a horse from defendant, who had seized him on execution.- The claim appears to be that the animal was exempt. The court found a general determination for plaintiff, and no special finding was asked or given, and it does not appear distinctly, although it is probable, that we have all the evidence. "We cannot, therefore, hold the conclusion unwarranted by the finding.¹

But upon the trial defendant was not allowed to show that plaintiff had other horses. The statute provides that, when a levy is made upon property of any class or species which is exempt, the officer shall make an inventory of the whole of the same kind, so that a selection may be made of enough to fill the exemption.² The defendant swore the horse was replevied before he had time to complete his inventory. It was therefore material to know whether this horse was the only one which plaintiff owned, for, if not, it might have turned out he would not have been made exempt by the proper statutory selection.

The judgment was erroneous, and must be reversed, with costs, and a new trial ordered.

The other Justices concurred.

1 See Manning v. Bresnahan, 63 Mich, 584 (head-note 4).

2 How. Stat. § 7687.