Marx v. Woodruff

50 Mich. 361 | Mich. | 1883

Cooley, J.

Replevin for a cow. The suit was instituted under the general replevin law. It sufficiently appeared, as we think, that the cow was distrained by the defendant damage feasant, and that the plaintiffs had knowledge of tlie fact when they sued out the writ. It was decided in Campau v. Konan, 39 Mich. 362, that replevin under such circumstances could only be brought under chapter 214 of the Compiled Laws, which makes special provision for such cases. We adhere to this decision, and the judgment, which was given for the plaintiffs in the circuit court, must be set aside, with costs, and a new trial awarded. The court should have dismissed the case.

We think, however, that as the defendant did not dispute the title of the plaintiffs, but only claimed a lien of six dollars, he would not be entitled, on the suit failing, to any larger recovery besides his costs. This intimation of opinion ought to save further litigation.

The other Justices concurred.