
    Ray, Respondent, v. Davison, Appellant.
    1. Where the taker up of a mare as a stray acquires no right by such talcing, he having no right under the stray law to take such mare up as a stray, a demand is not necessary to enable the owner to sue for her conversion.
    
      •Appeal from, Dallas Circuit Court.
    
    
      Gardenhire, for appellant.
    I. The evidence showed, and the instruction given by tbe court assumed, that tbe mare and colt bad been tahen up as strays. Tbe taker up then became, in tbe first instance, lawfully possessed of tbe goods. (1 Cbitty’s Plead. 157.) Tbe original taking was not only lawful, but praiseworthy. (4 Pick. 249.) Non-compliance with tbe statute only deprived tbe taker up of tbe right to defend tbe action. (Id.) A lawful taking does not become unlawful ah initio by tbe mere determination of tbe right to detain. (15 Johns. 401.)
    
      Wright, for respondent.
   Scott, Judge,

delivered tbe opinion of the court.

After tbe defendant had abandoned all claim of right to tbe mare and colt in controversy derived from tbe stray law, we do not see on what ground be can insist that a demand should have been made. It is not shown that tbe first legal step was ever adopted towards tailing up tbe mare ; she being unbroke could not be taken up at tbe season of tbe year she was posted. So there is no pretence that she was ever lawfully in tbe possession of tbe taker up ; there can then be no room for tbe application of tbe principle that a mere nonfeasance will not make one guilty of an abuse of authority in law a trespasser ab initio. It does not appear that there ever was an authority for taking up the mare. Tbe other judges concurring, tbe judgment will be affirmed.  