Ray v. Davison
Supreme Court of Missouri
•Appeal from, Dallas Circuit Court. 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.
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•Appeal from, Dallas Circuit Court. 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.)
1Opinion of the Court
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…
2Cited by1 opinion
- Bayless v. LefaivreSupreme Court of Missouri · 1865