56 Mich. 330 | Mich. | 1885
The plaintiff in this case brought replevin for eight cows. The declaration was in the usual form, and the plea was the general issue, with notice thereunder that the defendant would show that the cattle mentioned were seized and impounded for going at large on the highway.
The first section of the statute under which the defendant claimed the right to seize and impound the plaintiff’s cattle, provides that it shall not be lawful for any cattle, horses, sheep, or swine to run at large in any public highway; and the second section says: “ It shall be the duty of the overseer of highways to seize and take into his custody and possession any animal forbidden to run at large, which may be running at large in any highway of which he is overseer, contrary to the * * foregoing section.” How. Stat. §§ 2106, 2108.
The overseer of highways of the township of Springwells, near Detroit, in the month of June, 1883, took into his possession, under the above statute, a herd of about forty cows,
At this point the court asked defendant’s counsel if he “proposed to show that the identical cows described by this writ were upon the highway at the time these cattle were taken.” Counsel in answer stated that “ we do not propose to offer any evidence identifying the actual cattle in the highway as the cattle of the plaintiff; we cannot do it.” The question was again substantially repeated by the court to counsel, who again answered: “ I do not know whether they were or not; but the defendant will not take upon himself the burden of showing that any cattle belonging to the plaintiff were actually upon the highway.” Thereupon the
It is difficult to see upon what theory the defense could be maintained upon the statement of counsel for the defendant under the law as laid down by this Court. We think the circuit judge, in neither the ruling made nor direction given, committed any error, and
The judgment must be affirmed.