14 Mich. 233 | Mich. | 1866
Lead Opinion
The horse having been taken trp by the minor son who was not a freeholder, in the absence of the father, and without his previous knowledge or consent, such taking, it is admitted, would have been illegal if left to stand upon the act of the son. But the subsequent acts of the father, who was a freeholder, in retaining and selling the horse as an estray, it is insisted, operated as a ratification, and rendered the act of the son legal, as the act of his father.
The ratification is unequivocal, and so far as respects the father’s liability for the act, was equivalent to a prior command. But here the ratification is set up as the basis of a right to divest the plaintiff of his property; and the plaintiff seeking to make title through the father, the question is the same as if the action had been brought against the father, and he had sought to hold the property on the ground of the ratification.
The power to divest another of his property by this summary and ex parte proceeding must be strictly pursued, and none of the safeguards which the statute has thrown around the exercise of the power can be disregarded. The statute has given the power only to “ any resident freeholder of any township to take up any stray horses, &c., by him found going at large in such township.” The object of the legislature in restricting the power to this class of persons we must suppose to have been to protect the rights of the owner of such property in every way that such a restriction might operate to that end. Other classes of persons might, as a general rule, be not only less able to respond for an abuse of the power, but less careful to inquire into the circumstances before exercising it; less discreet in making seizures, and more disposed to exercise the power under circumstances which would not call for its exercise, than freeholders against whom the same power might be exercised by their neighbors.
The judgment of the Circuit Court must be affirmed, with costs of both courts.
Dissenting Opinion
dissenting. I think that the retention of the horse by the father was a full ratification of the son’s act, and that the “ taMng up ” must be considered his. If he had repudiated the act of the son, and turned the horse loose, upon learning of the son’s act, the rule would be different. I think the judgment should be reversed.'