McBrian v. Morrison
| Decision Date | 19 November 1884 |
| Citation | 55 Mich. 351,21 N.W. 368 |
| Court | Michigan Supreme Court |
| Parties | MCBRIAN v. MORRISON. |
Error to Midland.
Wm. S Tennant, for plaintiff and appellant.
Stanford & Van Kleeck, for defendant.
McBrian brought replevin in March, 1883, for a quantity of logs, and of staves made from logs, wrongfully cut on his land by defendant in the month previous. The sheriff returned the writ without seizure of property. On the trial there was evidence tending to show that defendant had staves in his possession which plaintiff and the sheriff could not identify as to their origin. It also appeared that defendant offered to let the sheriff take a lot of logs which were at his mill and which defendant said were from the land in question, but plaintiff did not regard them, where they were, as worth removing. On the trial the plaintiff made out a clear case of the wrongful appropriation of his timber, and to this extent the court sustained his claim. But the jury were told--First that the action must fail as to all staves and property not in defendant's own possession when the writ issued; and, second, that plaintiff could not recover for the logs which were not levied on when pointed out as before mentioned, and the court refused to give various charges asked by plaintiff. The sheriff's return was simply that he could not find property. There was no denial that the defendant had before the writ issued been in wrongful possession of the whole of it. By section 6738, Comp.Laws, (How.St. � 8327,) it is provided that if the property specified "shall not be found, or shall not be delivered to the plaintiff," he may proceed to recover the same, or its value. And by the previous section (6737) it is provided that if plaintiff does not give bond the property shall, if taken, be returned to the person from whom it was taken. So far as the logs in question are concerned, we can see no reason why it can make any substantial difference whether the plaintiff declines to take the property before or after the sheriff serves the writ. He is not bound to bond it unless he chooses, and his failure to do so does not arrest his action. There may be very good reasons why inability to get all the property remanded may render it onerous and unprofitable to take a part of it. The statute imposes no such condition as a measure of right. It may have been true that the small parcel of logs pointed out by defendant were not really the logs which he took from plaintiff, and it may also be true that where they then were it would not be profitable to remove them. It is certain that plaintiff need not have accepted and bonded them, and that defendant's position was not prejudiced by the sheriff's omission to take them, any more than it would have been by a seizure and return. We think there was error in preventing a recovery for these logs.
Upon the question whether recovery could be had for staves which may not then have been in defendant's hands, resort must be had to the character of the action itself under our statute. There is no doubt of its being chiefly valuable as a possessory action, although, as already seen, the plaintiff is not bound to make it so in all cases. There is nothing in the language of the statute itself which confines recovery to property actually held by defendant at the date of the writ. If such is the rule, it must come from inference, and belong to the nature of the action. By section 1 of the chapter of the Compiled Laws on replevin, it is declared: "Whenever any goods or chattels shall have been unlawfully taken or unlawfully detained, an action of replevin may be brought for the recovery of the damages sustained by such wrongful taking or detention, except in the cases hereinafter excepted."
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