| Mich. | Jan 28, 1885
This is an action of replevin for a horse, buggy, harness, lap-robe, blanket and whip. The plaintiff’s' •case was that he bought the articles of one Theodore Schultze, who gave him a bill of sale, reserving possession for six months. Plaintiff testified that during the six months he was to have the use of the articles whenever he desired. Within that time they were seized by the defendant, who is a deputy-sheriff, and who claimed to take them as the property of Schultze’s wife against whom he had an attachment. The Superior Court held that the plaintiff did not have the right of possession, and therefore could not maintain the •action. Also that the defendant was entitled to recover for the value of the use of the property while the plaintiff held it under the writ of replevin ; and the defendant was awarded $71.50 for the value of such use.
The court was in error both on the main question in the case, and on the question of damages. If the plaintiff had a right to the use of the property at will, he had a right to replevy it from a wrong-doer (Bassett v. Armstrong 6 Mich. 397" court="Mich." date_filed="1859-06-02" href="https://app.midpage.ai/document/bassett-v-armstrong-6632032?utm_source=webapp" opinion_id="6632032">6 Mich. 397), and the defendant was a wrong-doer if the plaintiff was •owner of the property. But whoever was owner of the property the defendant had no claim to such damages as were awarded to him. He set up no right to the property except finder his writ; and while holding it under his writ he had no right to make use of. it. He had therefore no right to recover damages for having been deprived of the use. The suggestion made on the argument that he ought to recover such damages because he may be liable to respond to somebody else for the use of the property in case his levy for any reason shall fail to protect him, is one the force of which we cannot admit. If the defendant is right in his
A new trial must be awarded.