Chaffee v. Harrington
| Decision Date | 06 October 1888 |
| Parties | FREDERICK CHAFFEE v. MOSES D. HARRINGTON |
| Court | Vermont Supreme Court |
JANUARY TERM, 1888.
REPLEVIN for a colt. Heard on a referee's report September Term, 1887, TAFT, J., presiding. Judgment for the plaintiff. The case appears in the opinion of the court.
The judgment of the court below is affirmed.
Lawrence & Mendon, for the plaintiff.
C H. Joyce, for the defendant.
I. The statute upon which this action is brought is as follows "When goods of the value of more than twenty dollars are unlawfully taken or unlawfully detained, from the owner or the person entitled to the possession thereof, * * * such owner or other person may cause them to be replevied." R. L. s. 1230.
It appears by the referee's report that the plaintiff had possession of the horse in controversy on the 30th day of May, 1884, when it strayed from his enclosure. His possession was presumably with the consent of Crampton who owned the horse jointly with him. At all events, under the authority of Sprague & Carr v. Clark, 41 Vt. 6, and Cox v. Fay, 54 Vt. 446, the plaintiff had such possession as enables him to maintain this action unless it appears that the right of the defendant to the property is superior to his.
II. The second question is in regard to the description of the property in the advertisements. Sec. 4053. R. L., is as follows: "If a person finds money or goods, to the value of three dollars, or takes up a stray beast, the owner of which is not known, he shall, within six days thereafter, make two advertisements, describing such money or goods or beast, with the natural or artificial marks, with the time and place of finding or taking up the same, and set them up in two public places in the town in which such property was found."
The advertisement set up by Goodell, who found the colt in his pasture, was as follows:
That the colt could have been more accurately described is shown by the report which says: "Said colt was a light bay, not tall and rangy, but, as described, chunky;' had a prominent white star in the forehead, about three inches long and two wide, a little, but not much, covered by the foretop; mane and foretop not very long or heavy, mane, tail and legs dark color, constituting what is termed dark points in a horse; carried tail a little to one side; gelding in sex; pacer in gait; age four years as indicated by the teeth, but in general appearance looked rather younger; about six inches of the tail was cut off square, banged,"' etc.
Sec. 4055 provides that, "If the value of such property exceeds ten dollars, the person finding it shall immediately cause a copy of the advertisement to be published three weeks successively in some newspaper circulating in such town."
The copy furnished by Goodell to the Ludlow Tribune and published therein was even more meagre in its description than the posted notices, for it omitted the word "horse" which the latter contained.
It must be held that the description, both in the newspaper and in the posted advertisements, was insufficient to comply with the legal requirements. The plain purpose of the statute in requiring that the stray beast shall be described by its natural or artificial marks is that the owner who sees the advertisements may recognize the beast as his own; also, that when in search of and describing his estray, others who have seen the advertisements may from them be able to identify the beast. In this case not only were the obvious natural marks upon the colt omitted, such as, "chunky" in shape, the "white star," and "dark points, " and the artificial mark of the "banged" tail, besides the peculiar gait, but the description that was given was misleading in incorrectly stating the age of the colt, which, as the referee finds, was indicated by his teeth.
III. The statute, R. L., sec. 4056, further requires that "If the owner of such property does not appear and claim it within twenty days from the date of such advertisement, the person so finding it shall cause a copy of the advertisement to be...
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