
    John Nelson versus Tonant P. Merriam.
    Where a person takes an estray to keep it for the owner, but neglects to pursue the course prescribed by the statutes, he is nevertheless not liable to an action of trover, unless he uses the estray or refuses to deliver it upon demand.
    Trover for a mare. At the trial in the Court of Common Pleas, before Williams J., the plaintiff proved that a mare which he owned, strayed from his enclosure in Middleborough, on the 10th of April, 1825 ; and it was in evidence, that the defendant took up a mare in Concord on the 15th, which was testified to be the same that had strayed from the plaintiff. It also appeared, that the defendant caused the mare taken up by him to be entered, advertised and appraised in manner as the law directs, but that he did not sell her at the expiration of two months after the appraisal, one Hildreth having before that time made claim to her and requested the defendant to keep her, saying, that he would furnish the defendant with the evidence of his ownership.
    The judge, upon this evidence, was of opinion that the defendant, in not selling the mare at the expiration of the two months, she being appraised at less than twenty dollars, had failed to comply with the provisions of St. 1815, c. 1, and by such failure had rendered the original taking tortious ; and he directed the jury, that if they were satisfied that the plaintiff had proved his property in the mare taken up by the defendant, they should find a verdict in his favor for the value of the mare at the time when she came into the defendant’s possession. The jury having returned a verdict for the plaintiff, the defendant filed his exceptions.
    
      Oct. 25th.
    
    
      W. Bay lies, in support of. the exceptions,
    said, that independently of St. 1788, c. 55, and St. 1815, c. 1, this action would not lie, for a person may lawfully take a stray beast to keep for the owner, and he will not be liable in an action, until after a demand and refusal, or using the estray. 6 Bac. Abr. 681, Trover B; Mills v. Ball, 2 Bos. & Pul. 457, and 464, note; 3 Stark. Ev. 1507; 6 Bac. Abr. 560, Trespass, B; Gardner v. Campbell, 15 Johns. R. 401. The consequences of not pursuing the statute are merely that the owner may at any time reclaim the estray, and that without paying the expenses of keeping. 1 Bl. Com. 297 ; Com Dig. Waife, F.
    
    
      Oct. 27th.
    
    
      Wood, contra,
    
    insisted that the defendant, not having complied with the statute, could not justify retaining the estray. It was incumbent on him to show that he had done every thing in his power to restore it to the owner. He has shown no offer to restore it; and though no special demand was proved, yet bringing the action was a sufficient demand.
    
      
       See Revised Stat. c, 56.
    
   Parker C. J.

delivered the opinion of the Court. The failure to complete the proceedings required by the statute in relation to stray cattle or lost goods, may or may not render the original taking tortious, according to the original character of that taking. This mare had strayed from the plaintiff's enclosure for forty or fifty miles, and she was taken up with a view to preserve her for the owner. The original taking,, therefore, was not only lawful, but praiseworthy. The noncompliance with the statute deprives the finder of the right to defend against an action, by showing that the mare was appraised or sold for less than the sum now claimed, and remits the parties to their rights independent of the statute.

Then the defendant is in possession of a chattel belonging to the plaintiff, by a rightful, and not a tortious act, and trover cannot be maintained without evidence of some actual use of the mare by the defendant, or of a refusal to deliver her upon demand.

The case of trespass ab initia is where the original taking is against the will of the owner, but justifiable, if for a lawful purpose, or with the will perhaps, and the purpose is not executed according to law. If the taker fails of showing this, then there is nothing to justify the original taking and it becomes tortious, as though there had been no such justifiable purpose. The case of Drake v. Shorter, 4 Esp. R. 165, states the principle clearly, that a possession obtamed, not injuriously, but with a view to the owner’s benefit, will not support traver, although the property be destroyed in the hands of the taker.

Hew trial granted. 
      
       See 2 Stark. Ev. (5th Amer. ed.) 839,846,847; 1 Chitty’s Pl. (6th Amer ed.) 180.
     