
    George Marx and James Cahalon, executors for William Quin v. Antoine Labadie, executor for Alexander H. Woodruff.
    
      Replevin for impounded eattle.
    
    Comp. L. ch, 214 permitting replevin to be brought for distrained cattle is meant to provide an action wherein the legality of a distress of stray cattle may be tested.
    The sums allowed per head for cattle distrained (Comp. L. § 6768) are penalties within the meaning of Comp. L. § 6784 which allows the owner of heasts “impounded in order to recover a penalty ” to bring replevin for them.
    Error to Wayne. (Jenníson, J.)
    Oct. 17.
    Oct. 24.
    KepleviN. Defendant brings error.
    Reversed.
    
      Stewcart <& Galloway for appellant.
    
      Chas. R. Ford and Sylvester Learned- for appellee.
   Sheewood, J.

Tbis case was before tbis Court on error at tbe last April term. See 50 Micb. 361. It was tlien decided tbe case should have been dismissed in tbe court below. Tbis course bas not been taken. A second trial bas been bad with substantially tbe same result as in tbe first, and tbe proceedings are now before us for review.

The circuit judge bas evidently misinterpreted the statute, as well as the scope of the opinion filed by Mr. Justice Cooley in tbis case on the former bearing. Chapter 214 of the Compiled Laws was intended to provide an action in which may be tried the legality of the distress made for either of the causes mentioned in the statute. the sums required to be paid by the ownera of beasts distrained, mentioned in section 2 of said chapter, are in the nature of a penalty, and tbis brings the case clearly within section •eighteen.

We are unable to discover that the second trial bas made any difference in the legal status of the case, and it must abide the former rulings of tbis Court. It is unnecessary to •consider the case further.

The judgment must be reversed with costs and a new trial granted.

The other Justices concurred. 
      
      (6768) Sec. 2. The person so talcing up and distraining the same shall he 'entitled to fifty cents per head for all horses, mules, asses and neat cattle, and ten cents per head for all sheep, goats and swine so distrained ■by him; and the poundkeeper shall be entitled to four cents per head for all the said animals so impounded.
      (6784) Sec. 18. Any person whose beasts are distrained or impounded, in order to recover any penalty or forfeiture supposed to have been incurred by their going at large, or to obtain satisfaction for any damages alleged to have been done by them, may have a writ of replevin therefor but of the proper court, and the same proceedings shall be had thereon as in other cases of replevin, except as hereinafter provided.
     