103 Ind. 138 | Ind. | 1885
On, and previous to, the 27th day of May, 1884, Jacob Leiter and James H. Nafe were the owners of,
The objections made here to the proceedings below are only such as were assigned as causes for a new trial, and upon which, in this Avay, questions were intended to be reserved.
The first cause assigned for a new trial was the refusal of the circuit court to quash the writ, and a" carefully prepared argument has been submitted in support of the claim that the Avrit ought to have been quashed. But this refusal of the circuit court was entirely preliminary to, and disconnected with, the trial. The motion to quash the writ was as much a separate and distinct proceeding as a demurrer to the complaint would have been, or as is a motion to quash an indictment in
The circuit court, upon its own motion; gave to the jury seven instructions in writing. The concluding part of the fifth instruction was as follows: “ If the hogs were running at large, it made no difference whether they were on defendant’s premises or not. An animal can not (however) be said to be running at large within the meaning of this statute ” (section 2639, R. S. 1881), “ if it should happen to break its owner’s inclosure without his knowledge or consent.”
The sixth instruction reiterated, substantially, the same doctrine, but in a more elaborate and somewhat modified form.
The seventh instruction told the jury: “ If you find that the defendant complied with the law in taking up and impounding the hogs in dispute, then the plaintiff, immediately on being notified that they had been taken up and impounded, had the right to redeem them immediately after receiving notice that they had been taken up and impounded, and to take into his possession and control the hogs so taken up.”
The defendant asked the circuit court to further instruct the jury that in case the hogs were, lawfully taken up and impounded, the plaintiff was not entitled to regain possession of them until he either paid or tendered to the defendant $1.50 for each animal for every day the hogs continued to be so impounded, but the court refused to instruct the jury as thus requested, and complaint is now made of instructions five, six and seven; given as above, and of the refusal to give this additional instruction.
Sections 2637 and 2638, R. S. 1881, have relation to the powers and duties of the boards of county commissioners of the several counties of the State in prescribing what kind of animals shall be allowed to run at large in the different town
Nafe’s defence at the trial was that he found the hogs running at large within the meaning of the foregoing statute, and that he was hence authorized to take them up and impound them as he did; that having had the right to take up and impound the hogs, he was authorized to detain them until certain alleged statutory charges were either paid or tendered to him.
It is claimed that this defence was fully sustained by the evidence, and that for that reason, as well as for error in giving and refusing instructions, a new trial ought to have been granted.
It is a well recognized rule of judicial construction that in all statutory proceedings, more or less ex parte in their character, a strict compliance with the substantial provisions of the statute is necessary to the validity of such proceedings. James v. Fowler, 90 Ind. 563. It devolved, therefore, upon Nafe to show affirmatively, that, at the time he took up and impounded the hogs, they were running at large or pasturing upon uninclosed lands or public commons of the township. This, we think, he failed to do. He was the only witness who testified as to the circumstances under which the hogs were taken up and impounded. His statement on that subject was as follows: “ The hogs, when I took them up, were in my pasture which was only partially inclosed; I put them in my back barn lot, fifteen rods square; the hogs, when I took them up, were running at large.” This state
There was nothing in the instructions, given and objected to, which had any practical application to the case really presented by the evidence as we find it in the record. The jury were evidently not misled by any of these instructions. We need not, therefore, enter into any discussion of the abstract character of the instructions so given and objected to.
The necessary inference from what we have already said is, that Nafe was not entitled to any compensation for taking up and impounding the hogs. The circuit court, consequently, did not err in refusing, to instruct the jury on the subject of his supposed right to compensation.
The judgment is affirmed, with costs.