The question is, did Butler, by using the oxen, incur the'penalty imposed by the second section of the act of 1823, Clay’s Dig. 551. The testimony shows, that the oxen were taken up as strays by Howard, in August, 1846, and having taken them up, he agreed to let Butler use them under this agreement. Butler received them from Howard, and worked them. But as the law did not authorize Howard to take up the oxen as strays, in the month of August, they were not strayed until November, and were then strayed by Howard; Butler retaining the possession, and using the oxen.

By the first section of the act of 1823, it is enacted, that if any person shall be desirous of posting any stray that may be found on his premises, he shall apply to a justice of the peace for the purpose of having it appraised, and the justice shall require of the person taking up the stray, bond and security, &e. By the 2d section of the same act, it is provided, that if any person shall presume to use any stray, or strays, without first having given bond as aforesaid, he, she, or they, *580shall be liable to the penalties prescribed by the 5th section of the act of 1820.

The 5th section of the act of 1820 provides, that if any person shall take up, or use an estray, contrary to the provision of this act, such person shall forfeit and pay for any such offence, the sum of one hundred dollars, to be recovered in any court of this State, having jurisdiction thereof, with cost. It is evident, that Butler did not take up the oxen, but only used them after they were taken up by Howard. Therefore, if Butler has incurred the penalty, it is for using them without giving the bond required by the 2d section of the act of 1823. But the statute contemplates, that the person taking up the strays, shall give the bond required, and no other person can do it, and the penalty for using the stray without giving the bond, can only be incurred by him who is required to give the bond. As Butler is neither required by that act, nor authorized to give the bond, as the oxen were not taken up as strays by him, he did not incur the penalty. But it has been argued, that as Butler knew that Howard had taken up the oxen as strays, and with this knowledge received them from him, under an agreement to use them, he became thereby a trespasser ab initio, by assenting to what Howard had done, and taking the benefit resulting from Howard’s act. This may be, and Butler by receiving the oxen and using them, with a knowledge that Howard committed a trespass in taking them up, may have subjected himself to an action of trespass. But because he may be a trespasser, it does not follow that he is liable to the statute penalty ; for all penal statutes are to be strictly construed, and none can be charged with the penalty, except those made liable to it by the statute; and as no one incurs the penalty for using a stray without giving bond, but he who has the authority, and is required by the act to give the bond, and the ruling of the court being contrary to the view here taken, the judgment must be reversed, and the cause remanded.