This action was brought to recover the costs of taking up and advertising, and the value of the keeping of two estray colts. The evidence shows, that after the colts had been regularly taken up, appraised, and notice given, by the plaintiff, the defendant, who claimed to own the colts, replevied them, and refused to pay the costs and value of keeping; and the court instructed that he was not liable. In this the court erred. The statute authorized the plaintiff to proceed as he did, and expressly confers upon him the right to be reimbursed before the owner shall be entitled to take the property. The legislature has the undoubted right to provide for the protection and care of estray property, and impose the obligation upon the owner to pay the expense thereof. But the question here is not whether the owner would be liable, in case he chose to abandon-the property rather than pay the charges. The owner replevied the property from the possession of the plaintiff, and he was under both a moral and a legal obligation to pay the expense of taking up, advertising, and for keeping.
The judgment must be reversed and the cause remanded.
Judgment reversed.