Oneida National Bank v. Paldi

Circuit Court of the 31st Circuit of Michigan

Oneida National Bank v. Paldi

2 Mich. N.P. 221

CourtCircuit Court of the 31st Circuit of Michigan

DecidedJuly 1, 1871

StatusPublished

This text of 2 Mich. N.P. 221 (Oneida National Bank v. Paldi) is published on Counsel Stack Legal Research, covering Circuit Court of the 31st Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oneida National Bank v. Paldi, 2 Mich. N.P. 221 (Mich. Super. Ct. 1871).

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Opinion

By the Court,.

Mitchell, J.

The statute, Sec. 4767, Comp. Laws, provides for the sale, under the Circuit Judge’s order, of - aaimals or perishable property” seized under an attachment, upon due proof of the perishable character of the property seized.— What proof is necessary is not provided by statute.

The affidavit on behalf of the attaching creditor in this ease states that the' property seized consists of a portable engine and boilers, a lath and shingle mill, gearing, belting, shafting and other machinery and articles usually connected with such an engine and machinery, situate on the lands of one of the defendants, at a remote place in the woods, from whence it cannot easily and withoui.njury he removed, and that it is liable to loss by trespass and theft or otherwise as now situated, and that to keep it safely requires two watchmen at a cost of four dollars a day, and if so held until judgment passes will cost to take care of it about five hundred dollars, while the whole value is about three thousand dollars.

It does not occur to me that the property described comes within the class of property meant or intended by the statute under the designation “ perishable.”

I think the statute means property perishable in its own nature or character, and not property th*"-. is or may be subject or liable to. loss by trespass, larceny or fire.

If such is not the meaning of the statute, then a stock of goods or almost any possible description of personalpropertymaybeputin the class of perishable, if it happens to be in an exposed condition or situation.

[222]*222If all such exposed property was .intended’to be covered by the statute, why did not the statute distinctly and íd terms include property liable to loss by trespass, theft or fire, or by exposure.

If the property is in the exposed or dangerous condition claimed. then it is clearly the duty of the Sheriff to remove it to a safer place, at least all parts of it liable to be removed or talen away by other persons, by trespass or otherwise.

Order for sale refused.

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By the Court,.

Mitchell, J.

The statute, Sec. 4767, Comp. Laws, provides for the sale, under the Circuit Judge’s order, of - aaimals or perishable property” seized under an attachment, upon due proof of the perishable character of the property seized.— What proof is necessary is not provided by statute.

The affidavit on behalf of the attaching creditor in this ease states that the' property seized consists of a portable engine and boilers, a lath and shingle mill, gearing, belting, shafting and other machinery and articles usually connected with such an engine and machinery, situate on the lands of one of the defendants, at a remote place in the woods, from whence it cannot easily and withoui.njury he removed, and that it is liable to loss by trespass and theft or otherwise as now situated, and that to keep it safely requires two watchmen at a cost of four dollars a day, and if so held until judgment passes will cost to take care of it about five hundred dollars, while the whole value is about three thousand dollars.

It does not occur to me that the property described comes within the class of property meant or intended by the statute under the designation “ perishable.”

I think the statute means property perishable in its own nature or character, and not property th*"-. is or may be subject or liable to. loss by trespass, larceny or fire.

If such is not the meaning of the statute, then a stock of goods or almost any possible description of personalpropertymaybeputin the class of perishable, if it happens to be in an exposed condition or situation.

[222]*222If all such exposed property was .intended’to be covered by the statute, why did not the statute distinctly and íd terms include property liable to loss by trespass, theft or fire, or by exposure.

If the property is in the exposed or dangerous condition claimed. then it is clearly the duty of the Sheriff to remove it to a safer place, at least all parts of it liable to be removed or talen away by other persons, by trespass or otherwise.

Order for sale refused.

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Bluebook (online)

2 Mich. N.P. 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneida-national-bank-v-paldi-micirct31-1871.