
    Rutter v. Henry.
    
      Animals — Running at large — Sections 4202, 4207 and 4208 construed — Pleadings-
    1. Where, -without the fault of the owner, a horse passes from, such owner’s inelosure over or through a line fence into the inelosure of an adjoining proprietor, and thence through a gap in a fence into the inelosure of another and adjacent proprietor, he is not running at large contrary to the provisions of section 4202 (Rev. Stats.); and no person is authorized to take up and confine him until the owner pay or tender compensation or other charges, as provided by sections 4207 and 4208 (Rev. Stats.)
    
      % An allegation that such animal was “ unlawfully running at large,” with no further statement of the facts, is not a sufficient averment that it was running at large in violation of the provisions of said section 4202.
    (Decided February 5, 1889.)
    Error to the Circuit Court of Washington County.
    
      The original action was one in replevin brought by the plaintiff to recover a horse from the defendant. The plaintiff alleged in his petition, in the usual form, his ownership of the horse, his right to the immediate possession of it, and its unlawful detention from him by the defendant. The latter answered, denying the unlawful detention simply, and “ for further answer and cross-petition ’•’ alleged that the horse was unlawfully running at large; that the defendant being the owner of land in the same township, took him up when so found running unlawfully at large, and confined him, and gave notice thereof to plaintiff the same day; that plaintiff refused to pay the statutory charges for taking up, and reasonable compensation for keeping the horse, wherefore he detained him as he lawfully might do. That he was entitled to $1.00 for taking the horse up, and reasonable compensation for keeping him two days, $1.50, for which, with $10.00 damages, he prays judgment. Replying, the plaintiff says “ that the said horse was not at large with his knowledge or by his fault.”
    Upon these issues the action proceeded to trial to a jury. The plaintiff gave evidence tending to show that the horse when taken up by the defendant was not running at large, nor caused to be detained for purposes of grazing in or upon any of the places specified in section 4202, Rev. Stats. That without his fault the horse passed from his inclosure through or over a line fence into an adjoining inclosure, and then through a gap into defendant’s field, where the latter took him up, notified the plaintiff, and demanded the payment of $1.00 “ damages” as a condition of delivering him up to the plaintiff; that the plaintiff made no tender of $1.00 or any other sum, but stated that he was ready to pay what was right; that only nominal damage -was committed by the horse. Thereupon the plaintiff rested his case, when the court, on motion of defendant, arrested the ease from the jury and gave judgment for defendant, upon the ground and for the reason that there was no evidence tending to prove a payment or tender of any sum of money by plaintiff to defendant, as compensation for taking up the horse. This action is assigned for error.
    
      This judgment was affirmed on error by the circuit court, and it is to reverse these judgments that this proceeding is-prosecuted.
   Owen, C. J.

The case should have been submitted to the-jury. The horse was not, when taken up by the defendant,, running at large in any public road or highway, or in any street, lane or alley, or upon any uninclosed land, or caused to be detained for grazing upon any of the places pointed out in section 4202, Rev. Stats., and hence no person was authorized to detain him until either damages or compensation- should be paid or tendered by the owner. It was wholly without his fault or knowledge that the horse found his way into the defendant’s inclosure. He did not suffer him to run at large in any sense contemplated by the statute, and consequently the case was not brought within either section 4207 or 4208, Rev. Stats.

Nor is it enough to bring the case within the statute that the ' animal taken up was “ running at large.” It must have been so at large in one of the places and conditions defined in the statute. It is assumed by counsel for defendant that the plaintiff admitted, by not denying, that the horse was “ unlawfully running at large,” as it is alleged in the answer. This view magnifies the legal significance of this averment. It means no more than that the horse was running at large— whatever that is. The meaning is not enlarged by the epithet employed. It involves no issuable fact. ’Whether it was unlawfully running at large depends upon the facts, and these are not stated.

' It was incumbent upon the defendant to show, if the plaintiff’s evidence did not, that the horse v7as suffered by the plaintiff to run at large, or caused by him to be detained for grazing upon some place specified in section 4202. This is not accomplished by an undenied averment that the horse was “ unlawfully running at large.” The facts should have been shown so that the court could say whether they brought the ease within the statute. Beyond the fact that the horse was-“at large,” the averment is of the mere conclusion of the pleader. The reply avers that the horse was not at large with plaintiff’s knowledge or by his fault. Besides, it may well be said, that all averments beyond the denial of defendant of the unlawful detention, were surplusage and immaterial. This denial made an issue as broad as the entire case. Every material fact was put in issue by it. Bailey v. Swaine, 45 Ohio St. 657.

The assumption that the plaintiff admitted the case to be within sections 4202, 4207 and 4208, being unfounded, there is nothing in the record that tends even to bring the case within any of these provisions; and as, therefore, no case calling for a tender was made, the trial court erred in arresting the case from the jury and giving judgment for the defendant by reason of the failure of the plaintiff to prove such tender, and for this error the

Judgments below are reversed and the cause remanded for further proceedings.  