The opinion of the Court was delivered by

Merriam v. Nelson, 4 Pick. 249, establishes the principle that where a person takes an estray, to keep it for the owner, but neglects to pursue the course prescribed by the statute, he is nevertheless not liable to an action of trover, unless he uses the es-tray, or refuses to deliver it up on demand. Here it is conceded that the horse was taken up with the view of preserving it fqr the owner, but escaped from the possession of the defendant without any fault of his. There is therefore nothing in this part of the case on which the defendant can be held liable; and particularly in this form of action; for trover will not lie for negligently keeping an estray. Mulgrove v. Ogden, Cro. E. 219. The doubt arises on the answer to the second point. The court charged the jury, in substance, that riding the horse, even with the intention of finding the owner, was a conversion. The use or abuse of an estray is such a conversion as will support trover or trespass, for the law will not permit the working an estray. Oxley v. Wells, 1 T. R. 12; Bagshawe v. Goward, Cro. J. 147. But whether an estray may not be used for the purposes slated in this point, is another question. Even in the case of a distress, in Duncomb v. Reeve, Cro. E. 783, it was said by Popham, C. J., that one may, in some cases, meddle with and use a distress, when it is for the owner’s benefit; as where one distrains armour, he may cause them to be scoured to avoid rust; so if one distrains raw cloth, he may cause it to be pulled, for it is for the owner’s benefit. In Rex v. Cotton, 2 Ves. 294, this case is noticed, but no opinion is given whether a cow taken as a distress may be milked; but Parker, C. B., refers to Cro. J. 148, and 12 Co. 335, as authorities for the affirmative. But however this may be as to a distress, and perhaps the authorities may render the point, doubtful, yet the law is certainly so in the case of an estray, which, in some respects, stands on a different footing ; and the reason for the distinction is, that in the case of an estray, unlike distress, the party taking them is bound to find them in food as long as he keeps them. An estray may be used for the benefit of the owner, as, for example, a cow may be milked. Was, then, riding the estray, under the circumstances, for the benefit of the owner? and if the search had resulted in finding the owner, *560there would have been no doubt about it. But can the result alter the principle? We conceive it cannot. The act of April 1807 makes it the duty of a person who takes up an estray to give notice to the oVner, if he can be readily found, and this obviously with the intention of avoiding the expense which must otherwise be incurred. It would therefore seem that the legislature did not intend to prevent him from taking the ordinary means to discover who was the owner, and the most obvious one would be, to show the animal, and particularly a horse, in the neighbourhood to which he most, likely belonged. When this has been done in good faith, it would seem to be a harsh construction of the act to hold this, which was intended for the owner’s special benefit,, a conversion to his own use. If, however, as in Bagshawe v. Goward, Cro. J. 147, the estray was used for other purposes, it would be a conversion. There the horse was used for the benefit of the defendant, and not the owner. The court say it is not lawful to work an estray in any manner, unless in case of necessity, and for the benefit of the owner, as to milk milch-kine, because otherwise they would be spoiled; and so of the like ; but to use a stray horse by riding or drawing is tortious; although it was alleged that the common course is to use stray horses with withs about their necks. And this the court, properly say would be an abuse. The case of Bagshawe v. Goward decides that a person cannot use an estray for his own purposes, although he may at the same lime indicate that the animal he is so using is an estray. But that was a very different question from the present. Suppose the defenfendant. had been told that the horse belonged to a neighbour, would he be liable to an action for riding the horse or sending him by another to ascertain the fact, although he was misinformed? This would not be such a use or such an abuse of the thing as to amount to a conversion. The principle which governs this case is also stated in Drake v. Shorter, 4 Esp. Rep. 165. That tvas trover for a boat. The plaintiff, who was employed in an invention for making a yessebsail against wind and tide, had employed the defendant, to work on he*!'. While he was working the vessel took fire. The defendant took a boat belonging to the plaintiff to endeavour to extinguish it, but she was sunk and lost.

It was contended, that while the defendant was working on the vessel, it was'his duty to take care of her, and that the interference was to prevent the fire spreading, by means of which the accident happened ; which he contended was lawful.

Lord Ellenborough said, that if the fact were so, he thought it amounted to a defence; that what might be a tort under one circumstance might, if done under others, assume a different appearance. As, for example, if the thing for which the action was brought, and which had been lost, was taken to do a work of charity or to do a kindness to the party who owned it, and without any intention of injury to it or of converting it to his own use; if, under any of these circumstances, any misfortune happened to the thing, it could not be *561deemed an illegal conversion ; but, as it would be a justification in an action of trespass, it would be a good answer to an action of trover.

It is the intention with which the thing is used which makes it - lawful. If the horse was ridden with the sole and bom fide intention to discover the owner, it is not a conversion; but the law will'be otherwise if used for his own benefit, although under that pretext. Nor need we apprehend that this will lead to an abuse, as the jury must judge of the intention.

Judgment reversed, and a venire de novo awarded.