WHAT IS AN ESTKAY. 116 



tached by all the authors who attempt the definition. . . . 

 In common acceptation it is believed that the term estray in 

 our statute has not been restricted to an animal ignoto domino, 

 and we think that the law might very properly apply to cases 

 where the owner, although known, might be remote or where 

 he would not follow and reclaim his animals that had wan- 

 dered off, with reasonable diligence. A citizen who would 

 take up such wandering animals when found on his plantation 

 or adjacent lands would, as we conceive, be exercising a right 

 conferred by statute and be not trespassing upon the property 

 of others." * 



An animal turned on a range by its owner is not an estray, 

 though he does not know its immediate whereabouts, unless 

 it wanders from the range and becomes lost.* 



It was held in Pennsylvania that a stolen horse may be sold 

 under the stray laws. "The proceeding against a stray is 

 in rem and not against the title of any particular owner. Its 

 object is not to inflict a penalty for letting the animal go at 

 large, but to compensate the injury done by it and secure the 

 residue of the value to the owner of it." ^ And there is a 

 similar decision in Iowa, where it is said : "It is plainly im- 

 material how the animal escaped from the owner — whether 

 by his voluntary act, by the act of a trespasser upon his prem- 

 ises, or by a thief. It is true that a thief can confer no title to 

 the stolen property. But the same may be said of a bailee; 

 and if a bailee were to abandon an animal, surely it would be 

 subject to the estray laws. So, if a trespasser should open a 

 gate or a stable door and a horse should escape, it would be 

 subject to be dealt with as an estray. And in all these supposed 



' State V. Apel, 14 Tex. 428, where it was held that in an indictment for 

 taking and using an estray the name of the owner should be stated, if 

 known. And see Worthington v. Brent, 69 Mo. 205, where a similar 

 definition is given. The indictment should also allege the value of the 

 estray where proof of value is essential under the statute to determine the 

 penalty: State v. McCormack, 22 Tex. 297. 



* Shepherd v. Hawley, 4 Oreg. 206; Stewart v. Hunter, 16 id. 62. 



' Patterson v. McVay, 7 Watts (Pa.) 482. 



