
    No. 60.
    Wolf v. Nicholson.
    
      Animals. — Running at Large — Impounding.—Animals which escape from an enclosure in which they have been placed by their owner for the purpose of confining them, and which he endeavors to recover when he learns of their escape, are not “ animals running at large ” within the meaning of the act of March 7th, 1887 (Acts 1887, p. 38), making it the duty of road supervisors to impound animals found running at large upon the roads.
    From the Henry Circuit Court.
    
      
      J. Brown and W. A. Brown, for appellant.
    
      J. II. Mellett, for appellee.
   Black, C. J.

This was an action by the appellee against the appellant to recover the possession of fourteen cattle.

The appellee, being the owner of the animals, placed them in an enclosed pasture on his farm in the morning. They escaped and wandered about one mile away, to the vicinity of the residence of the appellant, who was road supervisor of the district. During the same forenoon the appellant saw the animals upon the highway, and recognizing them as the property of his neighbor, took them up, impounded them upon his own farm, and notified the appellee in writing of the taking up and impounding, and that he could have the cattle by paying the appellant what the stock law required, and requesting the appellee to come and get the cattle, the notice being signed by the appellant in his official character as supervisor.

The appellee, about noon of the same day, and immediately upon receipt of the notice, before receiving which he did not know of the escape of the animals, sent a man to the appellant, at his residence, to take away the cattle. The messenger communicated the appellee’s demand for the animals, but the appellant refused to surrender them.

He based his defence in this action upon the provision of the statute of March 7th, 1887 (Acts of 1887, p. 38), making it the duty of road supervisors, upon view or information, to cause all horses, mules, cattle, etc., found running at large upon the roads, commons or uninclosed lands, within their respective districts, which are not authorized to run at large by order of the board of county commissioners, .as. by law provided, to be impounded, and such other proceedings had as required by the provisions of chapter 11, R. S. 1881, being an act concerning animals running at large.”

Animals which escape from an enclosure wherein they have been placed by their owner for the purpose of confining them, and which he endeavors to recover when he learns of their escape, can not be regarded as animals running at large within the meaning of this statute. McBride v. Hicklin, 124 Ind. 499, and cases there cited; Kinder v. Gillespie, 63 Ill. 88.

Filed April 29, 1891.

The judgment is affirmed, with costs.  