Ryall v. Epps , 122 Ala. 662 ( 1898 )

Opinion by

McClellan, O. J.

This was an action of trover, brought by the appellant against the appellee, to recover damages for the conversion by the defendant of certain cattle.

On the trial of the case the plaintiff introduced evidence which tended to show that he was the owner of the cattle alleged to have been converted at the time they were taken up by the defendant.

The defendant claimed that he acquired title through a sale of the cattle made ,by him as pound-keeper, under an act to prevent stock from running at large in certain portions of Marengo county, as amended by an act approved Dec. 9, 1896. This amendatory act requires, among other things, that the sale of impounded cattle shall be made “at public auction at some public place in the neighborhood.”

Upon the introduction of all the evidence the plaintiff requested the court to give to the jury the general affirmative charge in his behalf, and duly excepted to the court’s refusal to give .said charge as asked.

On this appeal the court holds that where title was claimed through an impounding under the statute establishing a district in which stock is allowed to run at large, the burden is on him who claims under such title, to show affirmatively that such statute has been strictly complied with, (McCrossin v. Davis, 100 Ala. 631) ; and that as the evidence in this case not only fails to show that the sale under which the defendant claims, was made at a public place, but it affirmatively shows that the place at which the same was made was not a public place, the court should have given the general affirmative charge requested by the plaintiff.

The judgment in favor of the defendant is reversed and the cause remanded.