53 Ind. 16 | Ind. | 1876
This case went off in the court below upon a question of jurisdiction. The appellant commenced in the court below an action to recover the possession of a colt, which it is alleged was unlawfully detained by the appellee. The appellee by his answer sought to bring the case within the provision of the eighteenth, section of the estray law. 1 G. & H. 325. It was alleged that the colt in question was an estray and had been ta'ken up, and all the steps which had been taken were described with particularity. To this paragraph a demurrer was overruled. Issue, trial by jury, verdict for appellee. Motion for a new trial overruled.
The court instructed the jury as follows:
“ That the taker up is not bound to deliver up property once legally in his possession under the provisions of the estray laws, until the alleged owner has brought himself within the provisions of the statute making it the duty of the owner seeking to reclaim such property to prove his ownership of the same before some justice of the peace of the township.”
It was admitted upon the trial that the colt belonged to the plaintiff, and that he had tendered the defendant the sum of twenty-five dollars for the expenses of taking up and keeping the same. It was admitted by the plaintiff that the defendant had complied with all of the provisions of the estray law in taking up the colt, to the time of bringing this action.
The only question, therefore, for the jury to decide was, whether the appellant had the right to bring his action in
The above section should be construed in connection with the sixteenth section of said act, which provides: “Upon property sold or reclaimed, the taker up shall be allowed such compensation for keeping such property as shall be, by the justice before whom the proper proceedings are had, deemed just and reasonable, and such taker up shall keep account of the time any estray animal is kept by him, and make oath to the same.”
~We think the instruction of the court was in strict accordance with the plain and express requirement of the sections hereinbefore set out. If the taker up of estray property should deliver the same to one who was not the owner, he would be liable to the true owner for the value thereof. These sections were intended for his protection. By the sixteenth section, the taker up is required to keep an account of the time any estray animal is kept by him, which has to be verified by his oath, and the justice of the peace is authorized to fix the compensation to which he is entitled. By the eighteenth section, the owner is entitled to his property by proof of ownership and by paying the charges allowed by
The judgment is affirmed, with costs.