
    Samuel J. Gidday v. William W. Witherspoon.
    
      Replevin: Judgment: Relwn of the properly. A plaintiff in replevin having failed in his suit for the reason that the property was shown by the evidence to have been m his own possession when he sued out his writ, a judgment for the return of the property to the defendant, is held to have been erroneous.
    
      Replevin: Special property: Finding: Judgment: Evidence. The statute (Oomp. L. 1871, g 6754) requiring that in replevin where a claim, of lien or special property is set up it shall he specifically found, it is not permissible for tbe court, where it is not so found, to recognize it by the judgment; and especially not where the evidence would not support such a finding 
    
    
      
      Execution: Officer: Title to property: Judgment. While an execution fair on its face is sufficient to protect an officer against personal responsibility in serving it, yet when he claims property under it he must show that it was warranted by judgment.
    
      Submitted on briefs January 5.
    
    
      Decided January 9.
    
    Error to Wayne Circuit.
    
      * Moore c6 Moore, for plaintiff in error.
    
      Mane <& Hibbard, for defendant in error.
    
      
       Plaintiff can not recover damages beyond his special interest: Darling v. Tegler. 30 Mich., 54, (Annotated Ed.), note 2. See Howell’s Sta s., 1882, sec. 8342 and note. A landlord may bring replevin for his portion of a crop where land is leased on shares and the crop housed elsewhere by tenant: Sutherland v. Carter, 52 Mich.
    
   Cooley, Ch. J.:

This was an action of replevin in which the defendant’s claim to the property, such as it was, was derived exclusively under a levy which he had not so far completed as to take possession of the property. The plaintiff appears to have failed in the suit because the property was in his own possession when he sued out his writ. Thereupon the court proceeded to render judgment against the plaintiff for costs, and also for a return of the property to the defendant in order that he might complete his levy.

This judgment for a return was erroneous. The statute requires a lien or special property to be specially found: Comp. L., § 675J¡.; and where it is not found the court cannot recognize it by the judgment. In this case there was ho evidence on which such a finding could have been had; for the judgment on which the execution issued was not proved. The execution would protect the officer against personal responsibility in serving it, but when he claims property under it, he must show that it was warranted by a judgment. — Beach v. Botsford, 1 Doug. (Mich.), 199.

The judgment for a return of the property must be reversed, with costs of this court. In other respects the judgment will be allowed to stand.

The other justices concurred.  