
    William H. Gilchrist and others v. Frank Schmidling.
    July Term, 1873.
    1. Supreme Court: Taking Case to, upon Sustaining Demurrer: Several Defenses. Where an answer to a petition contains two defenses, each sufficient, and the second defense is demurred to on the ground that it does not state facts sufficient to constitute a defense to the action, and the demurrer is sustained, the defendant may immediately take the case to the supreme court. And, although the first defense may be broad enough to authorize the defendant to introduce any evidence under it that he could under the second defense, yet he is not bound, after said demurrer is sustained, to go to trial upon his first defense, and ask the court to permit him to introduce said evidence, merely for the purpose of proving facts which the court has already decided are not sufficient to constitute a defense. And where the plaintiff alone, after said demurrer is sustained, proceeds to trial and obtains a judgment in his favor, the defendant may still take the ease to the supreme court, for the error in sustaining the demurrer is still material and substantial.
    *2. Municipal Corporations: Ordinance held Valid. An ordinance of the city of Emporia, adopted under the second-class city act of 1872, so far as it authorized the taking up and impounding of cattle running at large in said city in the night-time, in violation of sáid ordinance, is constitutional, legal, and valid.
    [3. Constitutional Law: Due Process of Law. What is due process of law, under the provision of the Kansas State Constitution, discussed in the opinion.] 
    
    [4. Stock: Municipal Corporation. The powers of cities with reference to the impounding of cattle running at large, discussed, and distinctions stated.]
    
    [5. -; Replevin. The rights of the owner of stock impounded, stated.]
    
      Error from Lyon district court.
    Beplevin brought by Schmidling to recover the possession of two heifers taken up and held by William H. Gilchrist and James Nisbit ■as marshal and policeman of the city of Emporia. Defendants ■claimed that they took up the cattle in controversy pursuant to the provisions of the following ordinance :
    “An ordinance to regulate and prohibit the running at large OE ANIMALS.
    
      “Be it ordained by the Mayor and Couneilmen of the City of Emporia:
    
    “ Section 1. No horse, pony, mare, filly, mule, ass, sheep, goat, swine, neat cattle, or other animal, shall run at large within the corporate limits of the city of Emporia, Lyon county, Kansas, in the night-time, to-wit, between sunset and sunrise.
    “Sec. 2. The marshal, assistant marshal, and policemen, are each and all hereby declared, nominated, elected, and constituted, and shall be eos oficio, keepers of the pound, pen, or building, or inclosure used and occupied for the impounding of animals; and either of them shall take up all animals found running at large within said city of Emporia contrary to the first section of this ordinance, and confine them in such pound, pen, building, or other place designated by the city council; and the officer taking up such animal shall provide, at his own cost, suitable and necessary sustenance for the animal so taken up, and the cost of providing such sustenance shall be paid to such officer before such animal shall be released by him.
    “Sec. 3. Any animal so taken up and impounded may be sold at public sale by the said marshal at any time after the expiration of six days from the time of impounding the same. The marshal shall personally attend to the selling of all animals, and shall give three days’ previous notice of the time and place of any such sale by causing written or printed, or partly written and partly printed, notices thereof to be posted in three public places in said city, giving description of the property to be sold; and the excess of moneys arising from such sales, after deducting the costs, charges, and expenses allowed by this ordinance, shall be paid into the city treasury; and of such payment the marshal shall take duplicate receipt, one of which he shall file with the city clerk.
    “Sec. 4. If the owner of any animal shall apply to and pay the officer his fees and charges at any time before the sale of such animal, the officer shall release such animal. If the owner of any animal shall apply to the city marshal after such animal has been sold, and prove the ownership thereof to the satisfaction of the marshal, before payment into the city treasury, the marshal shall pay the balance due from the sale of such animal to such applicant, taking his receipt therefor. But if the owner of any such animal sold shall apply to the marshal after payment into the treasury, and prove the ownership thereof to his satisfaction, then the marshal shall certify the facts to the mayor and councilmen, stating the amount deposited in the city treasury on account of such animal, and thereupon a warrant shall be drawn upon the treasurer in favor of such claimant for the amount so certified by the marshal, and the clerk shall file and preserve the certificate of the marshal, with claimant’s receipt in full indorsed thereon; but if said owner shall fail to appear within ninety days and apply for such amount so deposited in the city treasury, it shall be forfeited to the city.
    “Sec. 5. Any person who shall in any manner resist, impede, oppose, delay, hinder, or interfere with the said marshal, assistant marshal, or policemen, while engaged in the discharge of his or then-duties in taking up, leading, carrying, or driving any animal aforesaid to the city pound, shall, on conviction thereof, be fined in any sum not exceeding twenty-five dollars.
    “See. 6. Any person who shall break open, pull down, destroy, or injure the pound in the city of Emporia, or any door, gate, fence, or inclosure •thereof, or take or attempt to take or drive thereout or therefrom any animal therein impounded, without first paying the officer’s fees, as herein provided, shall on conviction of either of the two classes of offenses in this section enumerated, be fined in any sum not exceeding fifty dollars.
    “Sec. 7. Whoever shall suffer or permit any dangerous, unruly, or mischievous animal, owned or kept by him, to go at large in the city of Emporia, by day or,night, to the danger, annoyance, or damage of any person within said city, shall, on conviction thereof, be fined in any sum not exceeding twenty dollars.
    “Sec. 8. Whoever shall drive or entice any animal from beyond the limits of said city into the same, or shall aid or abet the same, or let any animal out of any inclosure in which it may be confined, or aid or abet the letting out or escape thereof, in order to take up or impound the same, shall, on conviction thereof, be fined in any sum not exceeding twenty dollars.
    “Sec. 9. The following fees shall be allowed under this ordinance: For taking up and placing within the pound, each animal, 50 cents; for sustenance furnished each animal, per day, 50 cents; for posting notices of sale, in each case, 30 cents; for making sale, in each case, 30 cents.
    “See. 10. This ordinance shall take effect and be in force from and after its publication.
    “Approved May 13, 1872; published May 17, 1872.”
    To a defense setting up this ordinance, and justifying thereunder, plaintiff demurred. The district court, at the September term, 1872, sustained the demurrer.
    
      Buck & Cunningham, for plaintiffs in error.»
    Is this ordinance reasonably within a fair construction of the powers delegated to the city? and, if so, are sections 31, 51, and 67, c. 100, Laws 1872, valid? The plaintiffs in error maintain the affirmative of both questions. Cook v. Bassett, 23 Mich. 113; Vansickle v. Haines, 7 Nev. 390; McKee v. McKee, 8 B. Mon. 433; White v. Tail-man, 26 N. J. Law, 69.
    The defendants below had only taken up and impounded the stock, .and claimed their fees therefor. The ordinance may be good in part, and bad in part; and so far as administered by them in this case should be sustained. Village of Borne v. Knox, 14 How. Pr. *273; Rogers v. Jones, 1 Wend. 237; Com. v. Dow, 10 Mete. 382; Smith v. Village of Adrian, 1 Mich. 495;- Ames v. Port Huron, L. D. & B. Co., 6 Mich. 266; People v. Mahaney, 13 Mich. 481. But we claim that the ordinance is entirely within the provisions of said chapter 100, Laws 1872. This matter, if within the scope of legislative, as distinguished from executive and judicial, functions, is clearly constitutional, because all legislative power is vested in the legislature; and except so far as restrained by state or United States constitutions the legislature is omnipotent. Mason v. Wait, 4 Seam. 134. The plaintiff below, however, seems ,to think that the ordinance and statute contravene some undefined and theoretical rights secured by sections 5 and 18 of the bill of rights.
    We cannot believe that the legislature intended that when the keeper of the pound took up and impounded an animal he should summon a jury; nor was there more occasion for it in the case at bar than in Buffalo Bayou, B. & C. R. Co. v. Ferr'is, 26 Tex. 588; Hymes v. Aydelott, 26 Ind. 431; Supervisors of Dane Co. v. Dunning, 20 Wis. 210; Hart v. Mayor of Albany, 9 Wend. 571. Nor do we believe that, so far as "due course of law” can apply to such proceedings, it was necessary to go into court and apply for a writ, and summon the owner of the stock, and when he was found, if ever, make inquiry of such owner as to how he would have the matter litigated. It must be conceded that the legislative department of the state is to determine the sufficiency of the notice in all cases. Constructive notice only is necessary, and if the owner thinks the ordinance has not been violated in a given case, he may bring replevin, and test that fact, and thus have his “day in court.” Hellen v. Noe, 3 Ired. 493; Dill. Mun. Corp. 295, 296, 297; Cincinnati v. Buckingham, 10 Ohio, 262; Trustees of Falmouth v. Watson, 5 Bush, 660; Com. v. Byrne, 20 Grat. 165; Matter of Empire City Bank, 18 N. Y. 216; Goodrich v. Reynolds, 31 111. 492; Doan v. Boley, 38 Mo. 450; State v. Freeman, 38 N. H. 426; Campbell v. Evans, 45 N. Y. 356; Happy v. Mosher, 48 N. Y. 318; Gosselink v. Campbell, 4 Iowa, 296. To insist on “due course of law,” to the extent the court below did, we should abandon the summary manner in which we annually sell land for taxes without any adjudication whatever.
    Every citizen holds his property subject to the valid “police regulations” of the corporation. Dill. Mun. Corp. 135, 136; Kennedy v. Sowden, 1 McMull. 323. Section 51, c. 100, Laws 1872, must be held valid unless it clearly conflicts with some definite *pro- • vision of the constitution. Walker v. Cincinnati, 21 Ohio St. 14; People v. Flagg, 46 N. Y. 404; Bourland v. Hildreth, 26 Cal. 161; Pennsylvania É. Co. v. Biblet, 66 Pa. St. 164; People v. Blodgett, 13 Mich. 127; People v. Mahaney, Id. 481; Amyx v. Taber, 23 Cal. 370; Leavenworth Go. v. Miller, 7 Kan. *479.
    
      B. M. Buggies, for defendant in error.
    The only question,» as we think, to be considered here, is, did the court below err in sustaining the demurrer of the defendant in error to the second defense set up in the answer? The second defense in the answer purports to be and is complete in itself, and must be considered as to its sufficiency without reference to the other defense. Said second defense contains no denial of the allegations in the petition, and hence they stand as admitted, so far as the second defense is concerned. Code, §128. Said second defense must, then, be considered as though it contained an express allegation that the plaintiff below was “the owner of, and entitled to the immediate possession of,” the property in the petition described, and also that the defendants wrongfully detain the said property, in connection with the matter affirmatively alleged in such second defense, and is pleaded to the whole of the petition. This admits the whole of the plaintiff’s case, and the pleading is clearly insufficient, and the demurrer was-rightfully sustained to said second defense. But suppose this court should think we are wrong, still the action of the court below in sustaining the demurrer to said second defense was immaterial, because all the matter therein contained, if admissible in evidence at all, or sufficient as a defense, was admissible under the general denial contained in the first defense set up by the defendants below. Oaks v. Wyatt, 10 Ohio, 344; Ferrell v. Humphrey, 12 Ohio, 113 ; State v. Jennings, 14 Ohio St. 77; Town of Leroy v. McConnell, 8 Kan. *273. And hence a general denial was all that was necessary or proper to be pleaded. Said second defense, if it amounted to anything at all, amounted to a general denial only, and it might have been stricken out as surplusage.
    But the question still remains, was the city ordinance set out in said second defense a valid enactment ? We insist that it was not. It seeks to deprive the citizen of his prop*erty without “due process of law.” It is, in effect, confiscation. By due process of law is meant that which hears before it decides; tries before it condemns; deliberates before it pronounces judgment. It is a power, of necessity, judicial in its nature; and any law or ordinance- or statute which seeks to divest the owner of his property without giving him an opportunity to appear and defend before some tribunal authorized to pronounce judgment, and without any notice, must be void. The legislature could not do this, and therefore could not authorize it to be done. Cooley, Const. Lim. 363. This ordinance attempts to make the city marshal judge, jury, and executioner, without any notice whatever to the owner of the seizure of his property and if by any accident he should remain ignorant of the fact for ninety days, he is utterly without remedy, if the ordinance is a valid: one, no matter how illegal or wrongful the seizure may have been. That such an ordinance cannot be of any validity whatever see Ames: v. Port Huron, L. D. & JB. Co., 11 Mich. 147; Rockwell v. Nearing, 35 N. Y. 307; Rosebaugh v. Saffin, 10 Ohio, 35; Campbell v. Evans, 45 N. Y. 356; Bullock v. Geomble, 45 111. 218; Willis v. Legris, Id. 289; Poppen v. Holmes, 44 111. 360. We do not contend that a personal notice would be in all cases required; but we do say that some sort of notice, either personal or of such convenient certainty, and reasonable length of time as is usual in proceedings in revi, and as would probably come to the knowledge of the owner, must be given; and that this notice must precede judgment; and that there must be a judicial inquiry; and that a tribunal must be furnished in which the owner can contest the legality of the seizure.
    
      
       See State v. Majors, 16 Kan. 444; Fudge v. Fudge, 23 Kan. 420.
    
    
      
       See Smith v. Emporia, 27 Kan. 531; Verner v. Bosworth, 28 Kan. 674.
    
   Valentine, J.

This was an action of replevin, brought by the defendant in error (plaintiff below) to recover the possession of two heifers, valued, respectively, at $45 and $15. The defendants below answered, setting up — First, substantially a general denial; second, that the defendants were officers of the city of Emporia, and impounded and held said cattle under an ordinance of the city, setting out the ordinance in full, and making it a part of the answer. The plaintiff below *demurred to this second defense on the . ground that it did not state facts sufficient to constitute a defense to the action. The court below sustained the demurrer, and the defendants excepted. The defendants, relying upon the sufficiency of the facts stated in their second defense, made no further appearance in the action. The plaintiff, however, further proceeded by introducing evidence, and obtaining a judgment in his favor and against the defendants for the cattle, and costs. We are asked to reverse this judgment, and the order of the court sustaining said demurrer.

The main question, and about the only one of any importance in the case, is whether said ordinance is constitutional, legal, and valid or not. But before proceeding to the discussion of that question it is necessary to dispose of some preliminary questions. We agree with counsel for defendant in error that on demurrer each cause of action or defense in a pleading, if demurred to separately, is usually considered separately, and as though it was the entire pleading; and it is always so considered unless it distinctly and intelligently refer to some other count or defense, or part of the record or exhibit, and make the same a part thereof. Krutz v. Fisher, 8 Kan. *96; Butler v. Kaulback, Id. *671; Stewart v. Balderston, 10 Kan. *131. We also agree with counsel that the wrongful detention of the property is the gist of the action of replevin in this state, (Leroy v. McConnell, 8 Kan. *273; Wilson v. Fuller, 9 Kan. *176, *190;) and that the general denial in such an action is sufficient to put in issue all the allegations of the petition; and for the purposes of this case, (and for that only,) we will concede that the defendants in this case could have proved under their general denial all the facts set forth in their second defense; and still we think that the second defense was such that, if said ordinance is valid, the court erred in sustaining said demurrer, and the error is material and substantial. If said ordinance is valid, then said defense is undoubtedly sufficient, without resorting to anything else outside to aid or support it; and if the said defense is merely superfluous, on *aceount of there also being a general denial, then the remedy for the superfluity is by motion, and not by demurrer. A general demurrer can never reach a separate cause of action, or a separate defense, or an entire pleading, merely for superfluity.. When a court sustains a general demurrer, it does not and cannot say that the count or the defense is superfluous, but it merely says that the facts stated therein do not constitute a cause of action or a defense; and the ruling of the court in such a case is immediately subject to review by the supreme court. Civil Code, § 542. The party aggrieved is not bound to again submit do the court the question of the sufficiency of his facts to constitute .a cause of action or defense before he can take the case to the supreme court, although he might possibly have a right to submit said question to the trial court a second time under another count or defense.

There is a vast difference between striking out,- on motion, one of two or more counts or defenses for inconsistency, redundancy, or superfluity, (as in the case of Auld v. Kimberlin, 7 Kan. *601, *609,) and in deciding upon demurrer that the facts stated in a particular count or clause of a pleading do not constitute a cause of action or a defense. In the one case, the two or more causes of action or defenses are considered together, and compared with each other, and if inconsistent with each other, or if one is redundant or superfluous, the party setting them forth in his pleading may elect under which he will proceed before any one of them is stricken out, and he then proceeds with the understanding that proofs of the facts which are sufficient as a cause of action or a defense are admissible under the pleading which remains; but in the other case, the count or defense demurred to is considered as though it were the sole count or defense in the pleading. The pleader has no right to elect that some other part of the petition or answer may be ruled bad for inconsistency, redundancy, superfluity, or for some other cause; and if the demurrer Ibe sustained, the court in effect says that the facts stated in said count or defense, and that might be proved thereunder, are not sufficient in law to constitute a causeof actionor defense, *wherever or however they may be proved. Hence, in such a case, it would be unreasonable to require that a party should, under some other count or defense, offer to prove the same facts which the court had just determined on demurrer were wholly insufficient.

Is said ordinance valid, so far as it applies to this case ? We think 'it is. Some portions of it may possibly be invalid, but not those that apply to or affect this case. Section 51 of the second-class city act (Laws 1872, p. 207) provides for just such an ordinance as the one we are now considering. See, also, sections 31 and 67 of said act, (Laws 1872, pp. 199,211.) Counsel for defendant in error claims that said ordinance is unconstitutional; but he does not point out any provision of the constitution that contravenes the provisions of this ordi:nance, and we hardly suppose that he desires us to declare the ordinance unconstitutional because “it is opposed to a spirit supposed to pervade the constitution, but not expressed in words.” Cooley, Const. Lim. 171; Walker v. Cincinnati, 21 Ohio St. 14, 41; Stockton & V. R. R. v. City of Stockton, 41 Cal. 162.

The able disquisitions found in many decisions and elementary works upon “due process of law,” “due course of law,” “law of the land,” etc., can have but little application in Kansas, for our constitutional provision upon that subject differs from that of almost every other state in the Union. It reads as follows: “All persons for injuries suffered in person, reputation, or property shall have remedy by due course of lato, and justice administered without delay.” Const. Bill • of Eights, § 18. We suppose that it is settled beyond all controversy that “due process of law,” etc., for transferring property from one person to another, before any injury has been suffered by the owner of the property, does not necessarily mean a judicial proceeding or a judicial determination. The distraining of cattle damage-feasant; the "taking up of strays; the sale of property, real or personal, for taxes ; the exercise of the power of eminent domain; the passage of remedial and retrospective statutes, legalizing what had previously been defectively executed or performed, and thereby •changing title to property, (Weister v. Hade, 52 Pa. St. 479, 480, •481; Cooley, Const. Lim. 371;) or the exercise of many police powers by the police officers of a city, — is as much “due process of law” ■.as any judicial determination can be, and yet they are not, as a rule, judicial proceedings. Nor does “due process of law” mean “a legal proceeding according to the course of the common law, nor must there be a personal notice to the party whose property is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be appraised of what is going on, and an opporfcunitvis afforded him to defend.” Happy v. Mosher, 48 N. Y. 313, 318.

It seems to be admitted that said cattle were taken up and impounded in accordance with said ordinance, and hence the naked question of the validity of said ordinance is all that we need now consider. ' The cattle were taken up in the night-time, while they were running at large in said city in violation of said ordinance, and were impounded by the defendants below, who were the proper officers for that purpose. On the next day the plaintiff below, who was the owner of the cattle, demanded them, and the officers refused to give them up unless the plaintiff should first pay them fifty cents for each of the cattle. This was the amount fixed by the ordinance for taking up and impounding each animal. The owner refused to pay said fees, and then commenced this action. Now, it will be admitted that where the law or an ordinance provides that the owner of the cattle shall, in addition to the cost of taking them up, impounding, and keeping them, pay for the damages that they may do to private individuals while unlawfully running at large, the question of damages, and the amount thereof, can be determined only by judicial investigation, and generally in a suit between the parties interested. Bullock v. Geomble, 45 111. 218. And it will also be admitted that where fines or forfeitures, or anything of a penal or criminal nature or character, is imposed, the question of whether the owner of the stock is liable-for the same can only be deter*mined by judicial investigation. Const. Bill of Rights, § 10; Poppen v. Holmes, 44 Ill. 360; Willis v. Legris, 45 Ill. 289. It will also be admitted that some notice-of some kind must be given, in order to render a sale of the property valid. Rosebaugh v. Saffin, 10 Ohio, 32. And it will also be admitted that the ordinance must be authorized by law, or |he charter of the city, in order to be valid. See, as sustaining these propositions, Rockwell v. Nearing, 35 N. Y. 302, 307; Campbell v. Evans, 45 N. Y. 356; Happy v. Mosher, supra; Ames v. Port Huron, L. D. & B. Co., 11 Mich. 147.

But when nothing is attempted to be imposed upon the owner of the stock as damages or penalty, but only the reasonable cost of taking up, impounding, and keeping the same, and sufficient notice is-provided for, and the ordinance authorized by the city charter, it is believed that no court has ever held the law, or the ordinance founded thereon, to be unconstitutional or invalid, although the sale may not be made under judicial process, although there may be no provision for a judicial investigation, except the general remedies to determine-whether the law or the ordinance has been complied with, and although the notice provided for may not be a personal notice, but only a notice by publication or by posting. The ordinance which we are-now considering does not attempt to impose upon the owner of the-stock any damages or penalty, but provides merely for payment for taking up, impounding, and keeping the stock, and for posting notices of sale, and making the sale, as follows: “For taking up and placing within the pound, each animal, fifty cents; for sustenance furnished each animal, per day, 50 cents; for posting notices of sale, in each case, 30 cents; for making sale in each case, 30 cents.” Only the charge for taking up and impounding applies in the present case, for no other charges had yet accrued when the cattle were replevied, and no other charges were required from the owner before the officers were willing to surrender the cattle to the owner.

Every charge authorized by said ordinance must be considered as remedial in contradistinction to penal; and therefore *does not come within those decisions which declare that a penalty can be imposed only by judicial determination. Cattle running at large in the night-time, in a city, are supposed to be a nuisance, or at least such a thing is supposed to be against the best interests of the public; hence they are taken up and impounded, not as a penalty against the owner, but as a protection to the public; and the fees are fixed merely as 'reasonable compensation for the trouble of taking them up and keeping them, and not in any sense as a penalty. These fees immediately become a lien upon the cattle, and can only be discharged by payment; and the owner has no right to the possession of his cattle until he makes this payment, and discharges this lien. This is as far as this case goes, and this far the law and the ordinance must be valid beyond all doubt. No sale was attempted to be made in this case, and no fees were charged except for taking up and impounding the cattle. Whether the officers could have made a valid sale of the cattle, if they had not been replevied, it is not necessary now to determine; but yet we think they could. The officers were required to keep them at least six days before they offered them for sale, and could not then or at any time sell them without first giving at least three days’ notice of the sale by posting notices in at least three public places in said city. Whether the sale provided for in the ordinance would divest the owner of his title in and to the property, or would simply transfer the lien of the city thereto for the charges thereon, it is also unnecessary now to determine; and neither is it necessary for us now to determine whether after the sale has been made, and the surplus proceeds thereof, if any, paid into the city treasury, the ninety-day limitation will bar the right of the owner to receive said surplus from the city treasurer. That ordinances and proceedings similar in their main features to those we are now considering are valid, we would refer to the following authorities: Hellen v. Noe, 3 Ired. 493; Whitfield v. Longest, 6 Ired. 268; Gosselink v. Campbell, 4 Iowa, 296; Gilmore v. Holt, 4 Pick. 257; and Rockwell v. Nearing, and Campbell v. Evans, supra.

Such proceedings as *these do not determine a man’s rights without giving him his day in court. He has his action of replevin from the very moment that the officers take possession of the property until the statute of limitations bars such an action to try the legality and validity of the proceedings whereby his property is taken; and if any irregularity or injustice should intervene, that would render the taking up of the property void, the same would also render' the sale, and all other proceedings connected therewith, void. And all this could be shown in an action of replevin. For instance, if some enterprising city marshal or other officer should take up a cow in the day-time, or should take her from an inclosure in the nighttime, or should go beyond the city limits to find her, these facts could be shown in an action of replevin, and after the sale as well as before, and would render the sale, and every proceeding connected therewith, or with the taking up of the cow, void. Thus, the owner •■of the cow, or the owner of any other stock, taken up and impounded, has, “for injuries suffered,” an ample “remedy by due course of law.” It may be claimed that six days is too short a time in which to authorize a sale. This may be true in some eases, but probably, as a rule, the time is sufficient. People generally know where their cattle run; and if any one of them should be put in a public pound, the owners would be likely to know it within six days. Probably, however, the time should be greater, and longer, and more general notice be given of the sale. But we need not speculate as to what would be a valid sale. All we need decide here is whether the ordinance authorizing the city officers to take up and impound cattle running at large in the night-time, and making the fees for taking them up and ■impounding them a lien on the cattle, and giving the officers the right to the possession of the cattle until the said fees are paid, is walid. We decide this question in the affirmative.

The judgment of the court below is reversed, and cause remanded, with the order that said demurrer to the second defense be overruled, ■and for further proceedings.

(All the justices concurring.)  