141 Mich. 571 | Mich. | 1905
This was an action of trover against the sheriff of Muskegon county for the conversion of property which plaintiff selected for his statutory exemption as a saloon keeper. September 5, 1903, the plaintiff, Thomas McCarthy, formed a copartnership with one James Roe, under the firm name of Roe & McCarthy, and engaged in the business of running a saloon and restaurant on Pine street, in the city of Muskegon, paying the tax, and giving the statutory liquor bond required by law. This part
Before commencing this action plaintiff went to the clerk’s office, and from the inventory and appraisal in the attachment suit, and according to the appraised value, selected property to the aggregate value of $250 as and for his statutory exemption, and on the same day served upon defendant a notice thereof and demand therefor in writing. The defendant refused to comply with said demand, and thereupon this action was brought. Under his plea of the general issue defendant gave the following notice of special defense:
“Sirs: Please to take notice that under the plea of the general issue, above pleaded, the said defendant will also give in evidence, and insist in his defense, that the personal property sued for in this action is held and was taken*573 by him upon a certain writ of attachment issued out of the circuit court for the county of Muskegon, at the suit .of the Dallas Transportation Company, plaintiffs, against the said Thomas McCarthy, as defendant, upon the 2d day of February, A. D. 1904.
‘' That the said plaintiff in this action, the said Thomas McCarthy, was notified time and time again, after the said levy was made, to come and select his exemptions, but he neglected to do so; and that under the statute said defendant set out his exemption for him, setting out personal property to the value of two hundred and fifty dollars that the said McCarthy had claimed was his.”
At the close of plaintiff’s proofs the court, upon motion of counsel for defendant, directed a verdict of not guilty, holding that plaintiff was not in a position to claim his statutory exemption of $250 in the saloon business, because of the fact that after plaintiff had bought out the interest of his partner, James Roe, at a time when they were legitimately engaged in the saloon business, the plaintiff, for a period of four months thereafter, ran said saloon in his own name without paying a new tax on said business, and without giving a new bond as required by law, and that upon no theory could plaintiff recover.
The grounds upon which plaintiff relies for a reversal of the case may be summarized as follows:
“1. The court erred in directing a verdict for defendant, because the defendant, by his conduct, in attempting to set out for the plaintiff, as defendant in the attachment suit, personal property to the value of $250 as and for his statutory exemption, and by his notice under the plea of the general issue in this case, is estopped from now claiming that the status of plaintiff was such as not to éntitle him to any exemption under the law.
“2. The court erred in directing a verdict for defendant, because under the undisputed evidence in the case the status of plaintiff was such as to entitle him to claim his statutory exemption of $250 in the saloon business.”
We think there was no error in the rulings of the circuit judge. The doctrine of estoppel cannot be invoked to change a status made criminal by statute into a lawful'
Plaintiff undertakes to distinguish that case from the case at bar by the fact that the business was unlawful from the beginning, whereas in the case before us the business was lawful at the commencement, and plaintiff thereby acquired a legal status as a saloon keeper, and bases his right to recover upon such status. The distinction is not a valid one. The business was as unlawful in the one case as in the other. The exemption applies to the business which is actually being carried on with the property at the time it is claimed, and, if that business is unlawful, the exemption does not attach. In the present case the plaintiff had been carrying on a business for over three months which the law denounced as criminal, and the fact that he had theretofore obeyed the law cannot afford him any protection or immunities over other violators of the law, whose violations may have been more extensive than his.
The judgment is affirmed.