34 Wis. 649 | Wis. | 1874
We think the circuit court erred in not granting the motion for a new trial. The verdict is unsupported by the evidence, and is directly in conflict with the instructions of the court, which contain a correct exposition of the statute under
The uncontradicted evidence in the case shows, that without any fault or negligence on the part of the defendant, the animal escaped from his inclosure into the highway, and followed off other cattle passing along the highway ; and that as soon as the defendant learned that the animal was at large, he took prompt-means to recapture it. But before the defendant’s servant found the animal, the plaintiff had seized it and shut it up in the barn whence it was taken. The court charged the jury that unless they should find that the defendant permitted or suffered the bull to run at large, or if the bull escaped from the defendant’s inclosure without his fault, and the defendant made all reasonable efforts to recapture him before taken, then the statute did not apply, and there could be no recovery in the action. These instructions were excepted to by the plaintiff. The plaintiff likewise requested the court to charge as follows : “ If you find that the plaintiff found defendant’s bull, over one year old, running at large, and that the plaintiff took him up and secured him in a secure place, and the defendant, on the same evening, without the knowledge or consent of the plaintiff, the finder, came in the night time and took away said bull, without paying the lawful charges incurred or offering to pay them, then the plaintiff is entitled to recover the value of the bull as proven.” This instruction the court gave, with the modification, “ unless you find that the bull was at large without any fault of the defendant.”
It was claimed by the counsel for the defendant, that section 9, which fixes the value of the property as the measure of recovery by the finder, when the animal is taken away without his consent and without first paying all lawful charges incurred in relation to the same, is void. That provision, he insists, is in the nature of a penalty or forfeiture of property; and he argues that under the constitution and according to the decision in Dutton v. Fowler, 27 Wis., 427, it can only be sustained by devoting the payment of the clear proceeds of the recovery to the school fund, instead of giving the amount to the finder. We do not, however, deem it necessary to enter upon an exam
By the Gourt —The judgment of the circuit court is reversed, and a new trial awarded.