¶1delivered the opinion of the court.
¶2The agreed facts do not show whether the animals were strays, subject to be taken up, nor when they were taken up, *552nor when they were posted, nor what sum the plaintiff paid for that purpose ; but, assuming, as the counsel have in their briefs, that the mules were taken up as strays and that the plaintiff performed his duty as required by the statute, enough is shown to raise a proposition of law. If the plaintiff had complied with the stray law (R. C. 1845, p. 1038), the title to the mules would have vested in him after the expiration of one year; and, if within one year the defendant had claimed them and proved his right, he would only have been entitled to take them upon payment of “ all costs, the reward and a reasonable allowance for keeping them.” The plaintiff had a lien on the mules for whatever was due to him, and though he had no right of reclamation against the defendant if he chose to abandon his property, he had the right of possession until he was paid. By taking the property the defendant admitted that it was worth more than the plaintiff’s legal charges on it, and he could not by committing a trespass avoid the liability to pay the just demands against it. The law implied an obligation on the defendant, if he took the mules within one year from the time they were taken up, to pay “ all costs, the reward and a reasonable allowance for taking the same,” and the plaintiff was entitled to recover his legal charges.
¶3The instruction was erroneous, and the judgment will be reversed and the cause remanded ;