55 Mich. 351 | Mich. | 1884
McBrian brought replevin in March, 1883, for a quantity of logs, and of staves made from logs wrong
On the trial the plaintiff made out a clear case of the-wrongful appropriation of his timber, and to this extent the. court sustained his claim. But the jury were told — -first? that the action must fail as to all staves and property not in defendant’s own possession when the writ issued; and second, that plaintiff could not recover for the logs which were not levied on when pointed out as before mentioned and the court refused to give various charges asked by plaintiff.
The sheriff’s return was simply that he could not find property. There was no denial that the defendant had before-the writ issued been in wrongful possession of the whole of it.
By Comp. L. § 6738 (How. Stat. § 8327), it is provided that if the property specified “ shall not be found, or shall not be delivered to the plaintiff,” he may proceed to recover the same or its value. And by a previous section (6736). it is provided that if plaintiff does not give bond the property shall, if taken, be returned to the person from whom it was taken.
So far as the logs in question are concerned we can see no» reason why it can make any substantial difference whether the plaintiff declines to take the property before or after the sheriff serves the writ. He is not bound to bond it. unless he chooses, and his failure to do so does not arrest his-action. There may be very good reasons why inability to-get all the property demanded may render it onerous and rmprofitable to take a part of it. The statute imposes no» such condition as a measure of right. It may have been
Upon the question whether recovery could be had for staves which may not then have been in defendant’s hands, resort must be had to the character of the action itself under our statute. ' There is no doubt of its being chiefly valuable as a possessory action, although, as' already seen, the plaintiff is not bound to make it so in all cases. There is nothing in the language of the statute itself which confines recovery to property actually held by defendant at the date of the writ. If such is the rule, it must come from inference, and belong to the nature of the action.
By section 1 of the chapter of the Compiled Laws on Replevin, it is declared : “ Whenever any goods or chattels shall have been unlawfully taken or unlawfully detained, an action of replevin may be brought for the recovery of the damages sustained by such unlawful taking or detention, except in the cases hereinafter excepted.” [How. Stat. § 8315.]
This language, taken alone, is very broad, and would cover any possession once obtained by tortiotis taking or by tortious detention. The. question is whether a defendant is exonerated from liability for such wrongful possession by turning it over to some one else. In most cases a cause of action cannot be destroyed by the act of the wrong-doer alone. And if a right to bring replevin can be destroyed by the defendant, without the fault or even the knowledge of the plaintiff, the case would certainly be exceptional. It would not be a difficult matter, by a series of concealed transfers, to cut him off entirely from this action.
At common law a return that the property had been removed from the jurisdiction was no answer to the plaintiff;
In reporting their work to the legislature the New York revisers declared it was their purpose to so extend the action as to make it a substitute for detinue, and concurrent with both trespass and trover. Our own statute is' as broad in terms as the New York statute, and while not in all respects the same, does not seem to differ in substance in this respect. The action of detinue was not prevented by defendant’s quitting possession before action. Com. Dig. “ Detinue B.” In Nichols v. Michael 23 N. Y. 264, it was held that the code substitute for replevin lies in spite of any wrongful. transfer by defendant. And reference is there had to English cases which fully sustain the same view, as well as to some earlier New York cases. And Selden, J., following the reasoning of the English cases, shows that one who has by his own wrong placed property where it is detained from plaintiff may justly be held to have contributed to that detention. And it might be further suggested that it cannot always be possible for the plaintiff to know whether defendant has parted with possession, and he might be subjected to costs
The defendant can never be any worse off by reason of ■being held for damages in this form of action than in trespass or trover. There is therefore no occasion to lean against the construction which plaintiff- claims, and which he is supported in claiming by good authority. He can only make ■out his cáse by such proofs as. would be available in any other form of action, and he gets no larger or better judgment, so far as damages are Concerned, in the one case than in the -other.
"We think the court erred in both of the particulars referred to. The judgment must be
Reversed and a new trial granted.