McBride v. Hicklin

Elliott, J.

The appellant, acting in his official capacity of supervisor, took up and impounded thirty-eight sheep belonging to the appellee, and he brought this action to recover for feeding and caring for them. The second paragraph of the answer alleges that the animals escaped from the enclosure of the appellee late in the night, and that early the next morning he hunted for and found them.

Conceding, but not deciding, that a supervisor who takes up animals found running at large, may recover the compensation provided by the statute (sections 2637, 2643, R. S. 1881,) in a personal action against the owner, the answer is nevertheless good, for the statute does not apply to cases where the animals escaped from the enclosure of the owner, *500 and he at once makes diligent search for them. Jones v. Clouser, 114 Ind. 387 ; Rutter v. Henry, 20 N. E. Rep. (Ohio), 334.

Filed June 26, 1890.

All that it is proper for us to decide, and all that we do decide, is that animals which escape from their owner’s enclosure can not be considered as running at large, within the meaning of the statute, in a case where, as here, the owner makes diligent efforts to recover them.

The appellant did recover some damages below, and, as there is no specification in the motion for a new trial, challenging the amount of recovery, no question is presented for our consideration. Davis v. Montgomery, 123 Ind. 587 .

Judgment affirmed.