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his farm or premises, or exercise any control over any such animal, except in case said animal has broken into his lawful enclosure, without having first posted the same, or having proceeded to post any such animal, shall use, or in any manner dispose of the same, contrary to and in violation of the provisions of this act, he shall be deemed guilty of larceny, and punished accordingly. SEc. 14. If, at the expiration of one year from the taking up of any estray under this act, the justice before whom the same was posted, his successor in office, or the district attorney of the county, has good reasons to believe the taker up has not duly paid into the county treasury the one-half appraised value, as herein required, it is hereby made the special duty of said justice in whose custody the record of the estray remains, or the district attorney, to issue a notice to the delinquent requesting him to appear before the justice on a day specified, and show cause, if any he can, why judgment shall not be entered against him in favor of the county, for the sum. Such notice may be delivered to the sheriff of the county or any constable of the proper township, and by him served on the party. SEc. 15. If no sufficient cause is shown, the justice shall enter judgment against the delinquent, for the amount due the county, with costs, which judgment shall be a lien upon all the property real and personal, belonging to the delinquent, from the time the same is entered. SEc. 16. In all cases wherein any services are performed by any officer or officers, under this act, their fees shall be allowed as follows, viz.: To the justice, for all services connected with the posting the animal or animals, which shall include the transcript for the recorder, two dollars. To the county recorder, for recording the transcript, one dollar. For all services performed by the justice under this act, other than the above, and for all services performed by other officers, the same fees as are allowed to civil officers in similar cases. SEc. 17. Nothing in this act shall be construed so as to apply to the counties of San Diego, Santa Barbara, San Bernardino, Los Angeles, Monterey and San Luis Obispo. The foregoing act of 1856, as to sections 2, 3, 4, 5, 6, 10, 11, 12, 13, 15 and 16, and the other sections as amended and added to, by the act of 1859, apply to all the counties except those mentioned in the commencement of this chapter, and those named in section 16 of the act of 1856.
The act of 1859 is as follows:
SECTION 1. Section one of an act entitled “An Act concerning Estray Animals,” passed April nineteenth, eighteen hundred and fifty-six, is hereby amended so as to read as follows: Section one. Every citizen, resident householder, in any county in this state, on finding any estray horse, mare, mule, jack or jenny, or any neat cattle, sheep, or goats, or any number of such animals, upon his farm or premises, who shall desire to take up the same, shall, at any time after the expiration of twenty days, from the finding of the same, go before some justice of the peace in his town ship, or, if there be no acting justice therein, then before some justice of a neighboring township, and make oath that he has made diligent inquiry through his neighborhood to ascertain the ownership of such estrays, and that he has also put up, ten days previously, a written notice in one or more of the most public places in his township, naming the place or places, setting forth all the information in his possession, concerning the said animals, embracing a description of the marks and brands thereof, and that he has examined the county records of marks and brands of such animal or animals upon record, and that he was about to post the same. He shall also, at the same time, make oath that the marks and brands of said animal have not been altered since they came to his farm or premises, and that the owner or owners are unknown to him.
SEC. 2. Section seven of the act aforesaid is hereby amended so as to read as follows: Section seven. If the owner of any lost or strayed animal shall not appear and prove his property therein within one year after the same is posted, he shall forfeit his right thereto. When the appraised value of any stray or strays of the same species, taken up as aforesaid, does not exceed one hundred dollars, the taker up shall apply to the justice of the peace to whom the return was made, or to his successor, for a copy of such return, appraisement, with marks and brands, and supposed age; and the taker up shall forthwith deliver the same to a constable of the township, if there be any such, and if not, then to a constable of a neighboring township, and the constable shall immediately advertise such stray or strays for sale, at three public places within the township, mentioning the time and place of sale, which shall be at least twenty days from the time of advertising, and the sale shall be made at some public place in the township, if of a horse kind, but, if any other kind, it shall be at the residence of the taker up, at which time the taker up shall deliver to the constable such stray or strays, and their increase, if any there be, and take his receipt therefor, and transmit the same to the said justice of the peace. The constable shall proceed to sell the same to the highest bidder, and pay the proceeds of such sale to said justice of the peace. When the appraised value exceeds one hundred dollars, the taker up shall deliver said copy of marks and brands to the sheriff of the county in which such stray or strays were taken up, who shall advertise them in one public newspaper, if there be any published in said county, for the term of thirty days, and if not, he shall advertise by written notice, posted in three or more public places, stating the time and place of sale, at which time and place the taker up shall deliver such stray or strays, and their increase, if any there be; the sheriff shall proceed to sell the same to the highest bidder, and after paying the amount awarded to the taker up by said justice, and for publishing, he shall pay into the county treasury the residue, reserving six per cent. for his fees, and take the treasurer's receipt for the same, and transmit it, together with the transcript of the marks and brands of the said stray or strays to the county recorder.
SEC. 3. Section eight of said act is hereby amended so as to read as follows: Section eight. No person taking up any animal under this act shall sell or dispose of the same in any manner, or remove the same from the county in which it was posted. Any person so offending shall be deemed guilty of larceny, and punished accordingly.
SEC. 4. Section nine of said act is hereby amended so as to read as follows: Section nine. If any stray animal dies or escapes from the possession of the taker up, at any time before the expiration of one year from the taking up, he shall not be held liable in any manner on account of such animal; provided the death of such animal be not caused by maltreatment, or the escape of such animal be not caused by neglect on the part of the taker up.
SEC. 5. Section fourteen of said act is hereby amended so as to read as follows: Section fourteen. It shall be the duty of the Recorder, upon the receipt of said transcript, to make an entry upon the record, showing that such animal or animals have been sold; or upon receipt of notice from the justice that such animals have been proven by the owner, he shall make an entry of the same. It shall also be his duty to cause a list of all estrays, with a description thereof, to be posted at the door of the court-house on the first day of the court next holden after such returns have been made to his office. He shall make out a list of those who have not complied with the provisions of this act, and transmit the same to the district attorney, who shall issue a notice to the delinquent, requesting him to appear before the justice on a day specified, and show cause, if any he can, why judgment should not be entered against him in favor of the county for the sum of appraisement and costs. Such notice may be delivered to the sheriff of the county, or any constable of the proper township, and by him served upon the party.
SEC. 6. Section sixteen of said act is hereby amended so as to read as follows: Section sixteen. In all cases where any services are performed by any officer or officers under this act, their fees shall be allowed as follows: To the justice, for all services connected with the posting of the animal or animals, which shall include the transcript of the recorder, two dollars; the county recorder, for recording transcript and all other services, two dollars; which fees shall be paid by the taker up. Said taker up shall be allowed five dollars for taking up such animal or animals taken up at the same time, and one dollar per head, per month, for the keeping of the same, provided the same be cattle; and two dollars, provided the same be of horse kind; and twentyfive cents, provided the same be sheep or goats.
SEC. 7. It shall be the duty of the justice of the peace, upon the receipt of the money proceeding from the sale of such stray or strays, to award to the taker up the amount as provided for in this act, and pay the same. Also five per cent. of said proceeds to the constable, and pay the residue to the county treasurer, taking his receipt for the same, and transmit it to the county recorder, together with the transcript of marks and brands of the said animal or animals. When the owner of such animal or animals shall appear and prove the same, it shall be the duty of the justice of the peace to transmit a notice of the same to the county recorder.
SEC. 8. Whenever the brand or mark of any animal, claimed to be an estray under the provisions of this act, is recorded in the office of the county recorder of the county in which such animal may be, it shall be the duty of any person, upon whose premises such animal may be, to give the owner of such brand, or earmark so recorded, twenty days' notice of the fact that such animal is claimed by him to be an estray. It shall be unlawful for any person to post or take up an animal as an estray under the provisions of this act, the brands and earmarks of which are so recorded, until after such notice has been given.
SEC. 9. The provisions of this act shall not apply to the counties of Trinity, Tuolumne, Sacramento and Santa Clara.
Every auctioneer, who shall sell any animal of the horse kind, or any mules, is required to keep a book, in which he shall register the name of each and every person bringing, or offering, any horse or mule to be sold, and the name of the person purchasing such horse, or mule, together with the date of such sale, or sales, and a description of each horse, or mule, so sold, together with the marks and brands—said book to be a public record, open to the inspection of any person.'
What shall be lawful fences for the counties of Butte, Amador, Tuolumne, Calaveras, San Diego, Mevada, Santa Barbara, Yuba, Trinity, Klamath, and Siskiyou, is declared by the Statute of 1850 as follows:"— Every enclosure shall be deemed a lawful fence, which is four and a half feet high, if made of stone; and if made of rails, five and a half feet high; if made upon the embankment of a ditch, three feet high from the bottom of the ditch, the fence shall be two feet high ; said fence to be substantial and reasonably strong, and made so close that stock cannot get their heads through it, and if made to turn small stock, sufficiently tight to keep such
* Laws of 1859, p. 854 * Wood's Dig. art. 2479.