
    PARKS v. KERSTETTER.
    Distrained Animals — Notice—Waiver.
    The owner of animals distrained damage feasant waives the written notice required by the statute, by trying to get the animals, after learning all the facts, before the expiration of the time for giving such notice, and while the person dis-training them is proceeding to take steps under the statute. Norton v. Roehey, 46 Mich. 460, followed.
    Error to Berrien; Coolidge, J.
    Submitted June 17, 1897.
    Decided June 28, 1897.
    Replevin by Sylvester Parks against Wellington R. Kerstetter. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.
    
      Hammond & Hammond, for appellant.
    
      James O’Hara, for appellee.
   Grant, J.

The plaintiff replevied from the defendant seven horses which were distrained damage feasant. The defendant found the horses in his wheat field between 7 and 8 o’clock in the morning. On the same day, about 10 o’clock, he notified the plaintiff that he had taken the horses in the wheat field, and informed him that he could have them by paying the damage which they had done, and also paying for their feed. Plaintiff said nothing, and turned away. About noon of the same day, plaintiff went within 20 rods of the defendant’s barnyard, where the horses were, and sent one William Ray to try to get them. Defendant told Ray that plaintiff could have his horses by paying $3, which included the damage they had done, and also the cost of once feeding them. Ray at once informed plaintiff of this offer. He declined to pay this small amount, and at once brought replevin. The court directed a verdict for the plaintiff on the ground that the statute required a written notice of the impounding to be served upon the plaintiff.

The court was in error. The case is ruled by Norton v. Rockey, 46 Mich. 460. Jones v. Dashner, 89 Mich. 246, does not overrule Norton v. Rockey, but .distinguishes the two cases. Defendant had given notice to the town clerk, and was proceeding to take steps under the statute. Before the time had expired for giving such notice, the plaintiff was put in possession of all the facts, and, under the rule of Norton v. Rockey, waived the notice.

The judgment is reversed, and new trial ordered.

The other Justices concurred.  