
    Haesig vs. Tripp.
    In an action of trover for the conversion of a mare and two colts, the declaration alleged that the plaintiff was “ lawfully possessed, as of his own property,” of the mare, and also “ lawfully possessed as aforesaid” of the colts.
    
      Held, The allegation of the ownership of the colts sufficient.
    A nephew of the owner of premises upon which animals have trespassed and been impounded for the damages, is not competent to act as an appraiser in estimating the damages occasioned by such trespass.
    Error to Kalamazoo Circuit.
   Opinion by

Cooley • J.

Tripp and Haesig were owners of adjoining farms, and a mare and two colts belonging to Tripp got into the field of Haesig, and were impounded by him damage feasant. He then demanded of Tripp $10 damages, which Tripp refused to pay, but tendered $6, which was declined. Haesig then applied to a justice to appoint appraisers of his damages, and the justice appointed two persons, one of whom was Haesig’s nephew. These appraisers fixed the damages at $10, which not being paid, Haesig proceeded to have the mare and colts sold at public auction, and they were sold accordingly. Tripp thereupon brought an action of trover for their value.

The declaration alleged that Tripp was lawfully possessed as of his own property” of the mare, and was also “ lawfully possessed as aforesaid” of the colts. On trial, when the plaintiff offered to prove ownership of the colts, the defendant objected on the ground that he had-not alleged his ownership of them by his declaration. The court overruled the objection, and the plaintiff obtained judgment. . Haesig then brought error.

Held, That the ruling of the Court on the admission of evidence was correct. When the plaintiff alleged that he was lawfully possessed as of his own property of the mare, and also “ as aforesaid” of the colts, the allegation, in the connection in which it is made, clearly is that he was possessed in like manner, that is to say, as of his own property, of the colts.

Held also, That the nephew of a party interested is not a “ discreet and disinterested person,” within the meaning of the statute, which specifies these qualifications for appraisers of beasts distrained. He would be incompetent as a juror at the common law, and he would also be incompetent, under our statutes to exercise any judicial functions in a case in which his uncle had an interest. The law presumes that his relationship will bias his mind; and as this presumption is not based upon special reasons, applicable only to the case of judge or juror, it cannot be overlooked, or disregarded in any case, where the statute makes impartiality a requisite. As this man was not a competent appraiser, the sale was necessarily void, and the whole defense failed. The party who, by an ex parte proceeding, is vested with authority, to dispose of the property of another, must observe at his peril, all these precautions which the statute has prescribed for the protection oí the owner’s interest.

Judgment affirmed.  