[No. 2105.]

#### Pedroni v. Eppstein, as Trustee for Denver Lodge No. 171, Independent Order of B’nai B’rith.

1. Evidence — Ownership—Houses—Presumptions.

In an action for damages for removing and converting houses used as residences, where the evidence established title in plaintiff to the lots on which the residences stood, plaintiff is presumptively the owner of the houses in the absence of evidence to the contrary.

2. Evidence — Instructions—Damages.

In an action for damage for the removal and conversion of certain houses and the conversion of certain cows, where the uncontradicted evidence showed that plaintiff was the owner of the property, and that defendant, without authority, removed and appropriated the houses, and that persons in whose possession plaintiff had left the cows, without any authority sold them to defendant who took and retained them, it was not error to submit to the jury only the question of damages.

3. Trustees — Action by — Statutory Construction.

Session laws 1897, page 248, providing that any person trading or doing business under the firm name of trustee shall file *425with, the county clerk an affidavit setting forth the full names and addresses of all the parties who are represented by the trustee, and in default shall not be permitted to prosecute any suits for collection of his debts until such affidavit shall be filed, does not apply to actions in tort.

*■Appeal from the District Court of Logan County.*

Mr. H. N. Haynes, for appellant.

Mr. Alpbed Mulles, for appellee.

GrUNTEB, J.

Plaintiff sued in tort to recover as damages the value of two houses and four cows. Prom a judgment for plaintiff defendant appeals. At the conclusion of the evidence the court submitted to the jury one question — the damages sustained.

The evidence without conflict showed plaintiff the owner of certain village lots. Upon these were two residences used therewith; this presumptively established him the owner *thereof.*—Dooley *v. Crist,*25 Ill. 551. There was no evidence to rebut this presumption. Defendant without authority removed and appropriated the houses. The cows plaintiff owned. They were left in possession of two parties for use; these parties without real or apparent authority from plaintiff sold them to defendant, who took and retained them. No evidence in conflict with these facts.

There was under the evidence but the above question of damages to go to the jury. The charge as to its submission is unchallenged.

Session Laws 1897, p. 248, prescribes that any person trading or doing any business under the firm name of trustee shall file with the county recorder an affidavit setting forth the full names and addresses of all the parties who are represented by the trustee, and in default of filing such affidavit such person so trading and doing bsuiness shall not be permitted to *426prosecute any suits “for collection of Ms debts” until such affidavit shall be filed. Fine or imprisonment is prescribed as a penalty for violation of the act. The affidavit was not filed. Appellant contends that its absence should abate the action. As to this objection it suffices to say, the statute applies only to suits for the collection of debts. This suit is not in the nature of an action for debt, it is an action in tort; it was not within the statute. The statute is highly penal and should be strictly construed. It does not embrace an action of *tort.*—Wood *v. Erie Ry. Co.,*72 N. Y. 196, 28 Am. Rep. 125.

Section 2468, Pomeroy’s Civil Code Calif., is similar to the statute before us except the absence of a penal clause. As construed it does not apply to actions for *torts.*—Ralph *v. Lockwood,*61 Calif. 155.

There was no error below justifying a reversal.

Judgment affirmed. . *Affirmed.*

Thomson, J., not sitting.