Plaintiff lived about two miles from the city of New Madrid. His hogs were not kept confined, as there was no stock law in that county. Eive of them strayed into the town and were impounded by the city marshal. Plaintiff refused to pay the charges demanded and replevied the hogs. Defendant set up a seizure under an ordinance of the town and the refusal of plaintiff to pay the charges prescribed therein as a justification for his detention of the animals. Plaintiff had judgment before the justice and likewise on appeal in the circuit court. Defendant appealed to this court.

*664ordinance, penal. *663The ordinance under which the defendant claimed a right to hold the property of plaintiff made it his duty to impound any swine straying in the limits of the city of New Madrid, and fixes the charges which he is entitled to receive under the release of the animals to the owner but with reference to the swine of nonresidents of the town the ordinance expressly requires that written notice shall be given to *664the owner, or it shall be shown that the animals in question have been previously impounded before the officer can demand any fees or charges for the release of the animals. It was admitted by defendant that the hogs in controversy belonged to plaintiff and that no written notice had been given of their seizure. There is no evidence in the record that these particular hogs had been impounded previously. As the ordinance relied on by defendant was an affirmative defense, the burden of proving his right to demand the charges therein specified rested upon defendant. Touching the point under consideration defendant testified: “They were his hogs. I could not state that these hogs were ever in town before. I never notified him in writing,” adding that he demanded the charges prescribed in the ordinance. The ordinance in question is penal in its nature, and can not be extended by construction beyond the meaning of the terms employed. Its plain language hinges the right of the officer to demand the prescribed fees for the apprehension of straying swine belonging to a nonresident, upon proof either of written notice to the owner, or that the animals in question have “been impounded before.” As the defendant gave no evidence of either of these requirements of the ordinance, the court should have directed a verdict for plaintiff, who was the admitted owner. It is therefore wholly unnecessary to pass on the instructions given and refused. The judgment for plaintiff being the only one' legally recoverable under, the facts of the record, is affirmed.