Riley v. Noyes , 44 Vt. 455 ( 1872 )

The opinion of the court was delivered by

PECK, J.

The facts reported by the referee do not show that the cow had been released at the time the writ of replevin was served, but was still in custody of defendant’s son, George Noyes, the defendant’s partner, or in the joint custody of the defendant and his son George. The point made in argument by the defendant’s counsel is, that the defendant was not so connected with the original taking of the cow by his son, or with the subsequent detention, as to render him liable in this action. Whether the interest of the defendant as copartner with his son in the damages for which the cow was taken and detained, is sufficient of itself to render the defendant liable in this action for the act of his son, it is not necessary to decide. Even if such partnership relation is not sufficient, as matter of law, to render the defendant liable, it is entitled to some consideration as evidence against the defendant, in connection with evidence tending to show acquiescence, and consent or approval on his part, of the act of his son in taking and-detaining the cow, after it came to his knowledge. The defendant being jointly interested in the proceeding of detaining and impounding the co w as a mode of recovering the damage done bj^ her, his assent to such detention by his son for that purpose would be sufficient to charge him. From the report of the referee it is evident that the conduct and declarations of the defendant in relation to the detention of the cow, taken together, were somewhat equivocal and changeable or contradictory ; at one time tending to show he did not participate in the act of his son in detaining the cow, and at other times tending to show such participation and approval. Th.e particular facts or evidence reported in detail by the referee before he draws his conclusion, are not inconsistent with the inference of fact that the defendant did not detain the cow; and if such had been the finding of the referee, there would have been no error. But the referee says : “ Upon these facts, intending to decide according to law, and to have my decision revised by the court, I find that the said cow was unlawfully detained hy the defendant, and that the plaintiff should recover of the defendant one dollar for his damages occasioned thereby.” The finding that‘the cow was detained by the defendant must be regarded as the finding of a fact, or inference of fact, from what is previously stated in the report; and as what is so previously stated warrants such finding as a matter of fact, it must be so treated. ' What the referee says as to intending to decide according to. law, and to have his decision revised by the court, can only have reference to matters of law, and not of fact. It only presents the question of law, whether, from the facts he had previously stated, he could legally find that the defendant unlawfully detained the cow; and as we think he might legally so find, his finding is not erroneous. '

The judgment of the county court is therefore reversed, and judgment rendered for the plaintiff according to the report.