This is a case made after judgment. Cook replevied in a justice’s court a cow which Bassett had taken up as running at large on the highway. Bassett pleaded in abatement that the cow was held by distraint for going at large contrary to law, and that the writ of replevin, which was the ordinary writ, was not applicable to the case, as no special affidavit had been made under chapter IBS of the Compiled Laws. This was demurred to, and, judgment having gone against the defendant, before the justice, he took a special appeal to the circuit court for Washtenaw county, where the same ruling was had on the plea, and where the court held further that there was no law rendering it illegal to allow cattle to run at large on the highway. This turns upon the meaning of act No. 185 of the statute of 1867 (L. 1867, p. %S1), and upon the action had under it.
That statute makes it unlawful for cattle, horses, sheep or swine to run at large upon the highways, and authorizes any person to take up such animals ■ in the road opposite the land owned or occupied by him. Certain proceedings are thereupon to be had, and certain sums of money, besides the cost of care and keeping, are to be paid to the person making seizure, and to the officer empowered to act. But the statute does not go into effect of its own force.
Section one contains the proviso, “ That this act shall be operative only in those counties or parts of counties in which it shall be so determined by resolution passed by the board of supervisors of such county.”
Section two is in these words: “ In case the board of supervisors in any county shall pass a resolution prohibiting any of the classes of animals named in section one of this bill to run at large in the public highway, then, in such *117county, after the year one thousand eight hundred and sixty seven, the following sections of this act shall be in full force; but otherwise they shall be null and void.”
The supervisors of Washtenaw, in October, 1868, passed the following resolution: “ Resolved, That act No. 135 of the laws of Michigan for 1867 be made operative in the county, excepting the township of Augusta.” The cause of action here arose in the town of Lodi.
The court below held that this resolution was not sufficient to put the act in operation, but that a further distinct resolution was needed, prohibiting in express terms the running at large of cattle.
We think this was erroneous. The title of the act shows its manifest purpose, which is “To prevent animals from running at large in the public highways.” Section one, without the proviso, contains a full and absolute prohibition extending to all the animals named, and can only be restricted by the proviso, which makes it only operative so far as adopted, but which necessarily makes the adoption sufficient to make it operative, unless limited by section two-That section was not necessary at all to put it in effect.
There is no very sound reason why section two was inserted at all, if its purpose is to be co-extensive with the proviso. It is not unlikely that the act was carelessly put together, and made to repeat the same idea more than once. There is one narrower purpose which it may subserve, which the first section alone would not accomplish, and we think it requires that construction to make it sensible. It contemplates that the supervisors may see fit to allow a greater range to some of the animals named than to others. If that should be desired, an acceptance under section one would be too broad, and a limited resolution under section two would be necessary. But we think a general acceptance under the proviso in section one is sufficient to put the *118entire act in force as to all the animals named in the act. The resolution of the supervisors was effectual, therefore, and the seizure of the cow was lawful.
As issue is found on the merits, and the facts are stipulated and found by the court below, we shall not decide upon the validity of the plea in abatement as matter of law, but reverse the judgment, with cost? of all the courts, and enter judgment on the finding for defendant for fifty cents damages, and for the costs of this court and of the circuit and justice’s courts; for all of which execution will issue from this court.
Graves and Cooley, JJ., concurred. Ohristiancy, J., did not sit in this case.