This is an action of trespass brought by the plaintiff as highway commissioner, under section 1371, How. Stat., to recover the statutory penalty from the defendant for an encroachment on the highway.
*198The cause was tried before the justice, and defendant had judgment, which was reversed in the circuit court of Huron county, and judgment entered for plaintiff for 50 cents penalty and costs. Defendant brings error.
The defendant pleaded the general issue, and gave-notice that he wholly denied any encroachment upon the highway, as described in plaintiff's declaration. The-declaration is set out in the record, and describes the-highway and encroachment thereon. The highway is-described as beginning at the corner of sections 10, 11, 14, and 15, in said township, and thence north along the-section line to the Sand Beach and Sebewaing State road, while the encroachment is described as commencing at, these section corners, and extending south twelve rods; that is, that the defendant maintained a fence south of' the point where the highway is described as commencing. This is a fatal defect, and no recovery should have been permitted in the court below.
The judgment of the court below must be vacated, and judgment entered for defendant in this Court for costs, of both courts.
The other Justices concurred.