Campau v. Konan

• Decision Date: 15 October 1878
• Citation: 39 Mich. 362
• Court: Michigan Supreme Court
• Parties: Edward Campau v. John Konan

39 Mich. 362

Edward Campau v. John Konan

Supreme Court of Michigan

October 15, 1878

Submitted June 21, 1878

Error to Wayne.

Replevin. Plaintiff brings error.

Judgment affirmed with costs.

Charles C. Stewart and Henry M. Cheever for plaintiff in error. One who distrains cattle under a statute must strictly comply with it or he is a trespasser, Morse v. Reed, 28 Me 481; Adams v. Adams, 13 Pick. 384; Sherman v Braman, 13 Metc. 407; Merrick v. Work, 10 Allen 544; Donovan v. Vicksburg, 29 Miss. 247; McNecley v. Hunton, 24 Mo. 281; Bayliss v Lefaivre, 37 Mo. 119; Sutton v. Beach, 2 Vt. 42.

Wisner & Speed for defendant in error.

OPINION

Marston, J.

Plaintiff in error brought an action of replevin under chapter 213 of the Compiled Laws to recover possession of certain horses. It appeared upon the trial that the horses had been permitted to run upon the highway; that they had broken into defendant's cornfield; that he had taken and shut them up in his barn, there being no public pound in that township; that he had reported the taking up of the horses to a justice of the peace and had posted notices of their seizure and sale. The proceedings on the part of the defendant it is not claimed were in accordance with the statute, but were defective; but the defense raised was that the action should have been commenced under and in accordance with the provisions of chapter 214 of the Compiled Laws, and the court so held.

Several errors are assigned, and which will be noticed, so far as deemed necessary, although not in the same order as presented in the brief of counsel.

First. That the court erred in refusing to charge the jury that there was no evidence tending to show that plaintiff knew at the time of the commencement of the suit that defendant claimed to have taken the horses for trespassing, and in charging that if he did know defendant had so taken them, the latter would be entitled to recover the value of keeping them.

The only evidence introduced tending to show that plaintiff did have such knowledge was that the horses were taken up by defendant on October 24th, and on the same day notices were posted, describing the horses, and that they had been trespassing upon the premises of defendant; that one of these notices was posted upon the office door of F. F. Campau, a son of the plaintiff; that on October 27th this son of plaintiff went to defendant's, saw the horses and inquired what they had done; that he returned the next day, claimed the horses and wanted to make an agreement with defendant as to their release, and that he afterwards made and swore to the affidavit, for and on behalf of the plaintiff, which was attached to the writ of replevin issued as commencement of this suit.

In my opinion this was sufficient evidence to go to the jury as tending to show knowledge on the part of the plaintiff. If the plaintiff's son had sufficient authority to commence the action by making the requisite affidavit, without any special directions from his father, in my opinion the information which he had previously obtained, would be binding upon his principal. If he communicated the information he received and was specially authorized to commence this action, still he could not close his eyes to any part of the information he had obtained. If he put the law in motion from the information he had gained from defendant and his acts, he could not, nor could the person who availed himself of his agency in the commencement of the action, avail himself of a part and refuse to recognize other portions. If knowledge on the part of plaintiff that the horses were taken and held by defendant for trespassing upon his lands, would determine in what form or under which chapter the action should be commenced, and the person who made the requisite affidavit in commencement of the...