The action was for the unlawful taking, by the defendant, of the plaintiffs’ sheep, and converting the same to his own use. Upon the undisputed facts of this case, and upon the facts found by the referee, there is nothing to justify the conclusion that the defendant either unlawfully took the sheep in question, or converted them to his own use. The testimony all shows, without any contradiction, and so the referee finds, that the plaintiffs’ sheep broke out of the lot and mingled with the sheep of the defendant, which were being driven along the highway, without any fault on the defendant’s part. All he did was to allow them to go along the highway with his flock to his own premises, where they could be conveniently yarded and separated. This was done immediately, by the defendant, on arriving at his premises. The plaintiffs’ sheep were separated and turned into the highway, and driven in the direction of the place from which they had escaped when they mingled with the defendant’s flock. Clearly here *203was no unlawful taking. The possession which the defendant was compelled to have for the time being, of the property, against his will, was, under the circumstances, justifiable and lawful. The possession, while it continued, being lawful, was there a conversion afterwards? Clearly there has been no illegal detention, or intermeddling with, or exercise of dominion over, the property, by the defendant in any way subversive of the rights of the owners. All the defendants acts were with a view to get rid of the property and free himself from it, not to convert it to his own use. It is not found, nor can it be pretended, from the evidence, that the sheep could have been conveniently separated in the highway. It was no unlawful exercise of right, or dominion, on the part of the defendant, to take them to his yard merely for the purpose of getting them out of his flock. He did not even know or suspect, as the testimony clearly shows, that the sheep belonged to the plaintiffs. On the contrary, he had been informed by the person in charge of the farm, that they were stray sheep, which he supposed had come “ from the other road,” upon the farm. There was no reason, therefore, to induce, or require, the defendant to return the animals to the exact point at which they had intruded themselves into his flock. He had just seen the plaintiffs’ agent at the farm, trying to drive the sheep from the premises. He did in fact drive them to within one hundred and thirty rods of the point where they mingled with his flock, and, as I understand the evidence, to the <c other road,” through which the sheep were supposed to have come, and there left them, in order that they might find their way home.
It is quite apparent that the defendant acted in entire good faith in doing what he did, and neither wished nor attempted to do anything to interfere with the rights of the owner of the property, whoever he might be.
The subsequent demands made by the plaintiffs were *204of no avail, as they were made at a time when it was known the sheep were out of the defendant’s pessession. The defendant never became the plaintiffs’ bailee of the property. His possession, such as it was, was forced upon him, and only continued until a separation from his own flock could be conveniently and properly effected.
[Fourth Judicial Department, General Term, at Buffalo, June 6, 1870." The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.
Mullin, P. J., and Johnson and Talcott, Justices.]