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.