The animal, for the conversion of which the action was brought, was taken up as an estray, and retained by the plaintiff below, for more than a year, without his having posted and advertised it, as the laws required. It then escaped from the plaintiff, and went upon the premises of the defendant, who took it up, and advertised it as an estray; but previous to the advertisement, the plaintiff demanded the animal of the defendant, who refused to surrender it. In this he was perfectly justified. By neglecting to advertise the estray, the plaintiff not only acted in violation of law, but became liable to a penalty imposed by the statute. Sec. 16, chap. 39, Rev. Stats.
The eleventh section of that chapter provides, that “if no owner appear and prove his property, within one year after the publication is made, the property shall be vested in the taker-up.” But in this case, the plaintiff had never made the publication, and without that, no lapse of time or continued possession could vest the property in him. He neglected an important duty imposed by the laws, which was, to notify the owner of the property, that it was in his possession; and, after such neglect, his possession became tortious. To hold, that he could acquire a title to the property by his illegal act, would be offering a premium for the violation of the laws. The defendant did no more than his duty, by taking up the estrays and advertising them, that the- owner might recover his property.
Let the judgment be reversed with costs.
Judgment reversed.