Hudgins v. Glass

A- J- WALKER, C. J. The statutes found in the Code, from section 1062 to section 1091 inclusive, constitute the taker-up of an estray, who does the acts prescribed in those statutes, the bailee of the animal for twelve months, unless it is claimed by the owner; and vests him with the owner’s title after twelve months. He is a law-appointed bailee, and is invested with a qualified property in the animal which is the subject of the bailment, and might, by virtue of that qualified property, maintain an action for the recovery of such animal. If the animal should escape from him during the bailment for twelve months, he might pursue and recapture it, or recover it from the person into whose possession it might happen to pass. The fact that the property escaped from the possession of the taker-up” a few weeks before the expiration of the twelve months necessary to vest him with a title, would not prevent the forfeiture of the former owner’s title to him. The taker-up is responsible to the owner for the negligent escape of the animal; and, even though the escape may have resulted from negligence, the rights of the taker-up as a bailee during the twelve months, and to a title after the expiration of the twelve months, would not be lost in consequence of such escape. The forfeiture of the owner’s title to the taker-up does not depend upon the fact, that the possession of the latter is continuous and without any interruption during the twelve months. If it did, the escape of the animal three [114] days (or even one day) before the end of the twelve months, would defeat the bailee’s title; and the taker-up might be held responsible for the value of the property to the owner, without any right of recapture. It may be that the taker-up might so act in reference to an escaped animal, that his conduct would evidence an abandonment of his right as a statutory bailee; and that the making of the report specified in section 1077 of the' Code, would be conclusive evidence of such abandonment. But we need not go into this question pf abandonment in this case, as the evidence does not show any facts which could be deemed an abandonment of the right of the taker-up, either as a bailee, or to the title of the property after the expiration of twelve months. The failure to recapture property before the expiration of the statutory period of bailment, which had escaped only two or three weeks before, would not terminate the bailment, nor prevent the title of the owner from vesting in the taker-up. It would work no forfeiture of the right of the taker-up, if he employed another to keep the estray for him. The foregoing views of the law are irreconcilable with the charges given, and the refusal of the charges asked; and therefore the judgment of the court below is reversed, and the cause remanded.