116 BSTHAYS. 



cases the negligence of the owner, or his act in abandoning 

 the property, is no more involved than in the case where prop- 

 erty is stolen. The true test and the only test is that the ani- 

 mal should be wandering and that the owner be unknown to 

 the person who takes it up as an estray." ® But in New Jer- 

 sey it was held that a stolen horse left by a thief tied to a post 

 in a public road was not an estray, the court saying: "A 

 stolen horse abandoned by the thief in his flight is a waif ; but 

 such a waif will become an estray so as to be the subject of 

 sale if it be found straying upon improved land. But no one 

 but the owner of such land can make the statutory seizure 

 and sale." '' 



40. Rights and Liabilities of the Taker-up of an Estray The 



use or abuse of an estray is such a conversion as will support 

 trover or trespass: the law will not permit the working an 

 estray. "It is not lawful for any to use it in any manner un- 

 less in case of necessity and for the benefit of the owner, as to 

 milk milch-kine, because otherwise they would be spoiled, 

 . . . but to use a stray horse by riding or drawing is tor- 

 tious." ^ One finding an animal and using it for his own ben- 

 efit, whether he knew the owner or not, is liable for the con- 

 sequences.^ But riding a stray horse in order to discover the 

 owner is not conversion." If the finder does not use the ani- 

 mal, or refuse to deliver it on demand, he incurs no liability." 



* Kinney v. Roe, 70 la. 509. 



' Hall V. Gildersleeve, 36 N. J. L. 235. Dalrimple, J., dissented, citing 

 Patterson v. McVay, supra. And see as to the necessity of the animal 

 being taken up in an enclosed and improved field, Irwin v. Mattox, 138 

 Pa. St. 466. 



' Oxley V. Watts, 1 Term 12: Bagshawe v. Goward, Cro. Tac. 147; 

 Weber v. Hartman, 7 Colo. 13 ; Barrett v. Lightfoot, i Monroe (Ky.) 241. 



"Murgoo V. Cogswell, i E. D. Smith (N. Y.) 359; Watts v. Ward, 

 I Oreg. 86. 



An indictment that alleges that the animal used was an estray, suffi- 

 ciently avers that the ownership was unknown: State v. Anderson, 34 

 Tex. 611. And see State v. Fletcher, 35 id. 740. 



" Henry v. Richardson, 7 Watts (Pa.) 557. 



"Henry v. Richardson, supra; Nelson v. Merriam, 4 Pick. (Mass.) 



