12 Mich. 99 | Mich. | 1863
There was no error in holding that the agreement signed by Hinsdale was not a valid contract, and could not, therefore, operate as an estoppel against him. But the Court held it was admissible “for some purposes;” and we think it was admissible as a parol admission of the facts recited in it, and open to explanation and contradiction as such.
But, as we understand the finding of facts, we think the Court erred in holding the plaintiff below entitled to maintain the action of replevin for the goods in question, as they seem to have been already in his possession at the time the writ of replevin was issued: for though it is found that defendant Hickey, when he levied upon the goods in the dwelling house of Hinsdale, took them into his posession, it seems to have been only so far as merely to make an inventory and appraisal of them; as it is further found that “ he did not in fact remove the goods from the house, but that he made no release thereof, or of any part of them, from said levy, but left the house and property as he found it, still claiming the property, by virtue of said levy; and whilst said defendants’’ (plaintiffs in error) “ were absent from said house, and before the time had expired for perfecting' the settlement according to the agreement offered in evidence, the plaintiff issued his writ of replevin,” &c. It is clear from this that, whatever
But the counsel for defendant in error insists that section one of chapter one hundred and fifty two, Compiled Laws, gives the action in all cases of a wrongful taking. The language is, “ Whenever any goods or chattels shall have been unlawfully taken or unlawfully detained, an action of replevin may be brought for the recovery thereof,’’ &g. But it is very plain from the subsequent provisions of the statute, in reference to the affidavit, the writ, declaration, &o., as well as from the nature and
At common law replevin could only be maintained where the -original taking (as well as tbe subsequent detention) was unlawful-: — 1 Chit. Pl. 186 to 190. Detinue was the common law action to obtain tbe property where tbe defendant came rightfully into possession, and tbe detention only was wrongful. The object of this provision of our statute was to extend the remedy by replevin, so as to include both classes of cases. But in both equally there must be an unlawful detention at tbe time of tbe institution of the suit. This detention is the whole gist of the action.
The finding of facts does not therefore support the judgment. The judgment must be reversed, and the plaintiffs in error must recover their costs in this Court and the Court below.