A Bill concerning Estrays, [6 December 1834]1
An Act concerning Estrays2
Be it enacted by the poeple of the State of Illinois Represented in the General Assembly. That every Person who shall take up any estray horse[,] mare or Colt ^mule or ass.^ shall within ten ^Five^ days take the same before some Justice of the Peace of the County where such Estray shall be taken up and make oath before such Justice, that the same was taken up at his or her plantation and ^or^ place of Residence in said County and that the marks or brands have not been altered since the taking up. The said justice shall then issue his warrant to three disinterested house keepers in the neighborhood unless they can be otherwise had causeing them to come before him to appraise said estray after they or any two of them being sworn to appraise such estray without partiality favor or affection, which appraisement together with the marks[,] brands[,] stature[,] colour & age of such horse[,] mare or colt ^mule or ass^ shall be entered in a book to be kept by such justice and certified under his hand and transmitted to the Clerk of the County Commissioners Court of such County within Fifteen days after the same is taken up— And any Person who shall take up any head of neat Cattle, sheep[,] hog or goat shall cause the same to be viewed by some house keeper of the County where the same shall happen and shall immediately go with such housekeeper before a Justice of the County and make oath before him as is required in taking up an estray horse[,] mare or Colt ^mule or ass^ and then such justice shall take from such house keeper upon oath a particular description of the marks[,] brands[,] colour and age of every such neat cattle[,] sheep[,] ^[^hog or goat, and such justice shall cause the said Estrays to be appraised in like manner as is required to be done in case of a horse[,] mare or colt ^mule or ass^ which description and valuation shall be entered by such justice in a book to be kept by him as aforesaid
and by such justice transmitted to the Clerk of the County Commissioners Court of the County to be by him kept as before directed3 and every such Clerk shall cause a Copy of such description and valuation of every neat cattle[,] sheep[,] hog and goat to be publicly affixed at the Court house door of his County within five days after the same shall be transmitted to him as aforesaid for which he shall receive the same fee as for entering the same in a book. Provided, that if two or more estrays of the same species are taken up by the same person at the same time they shall be included in one entry and one advertisement and in such case such justice and Clerk shall receive no more pay than for one of such species: Provided also that no person shall be allowed hereafter to take up and post any head of neat cattle[,] sheep[,] hog or goat between the month of April and the first day of November unless the same may be found in the lawful fence or enclosure of the taker up having broken in the same^,^ And for a reward of taking up there shall be paid by the owner One Dollar for every horse[,] mare or colt ^mule or ass^ And for every head of neat cattle[,] Fifty Cents and for every hog[,] sheep or goat Twenty five Cents, together with all reasonable charges—
And every person taking up an estray horse, mare or colt, shall within two months after the same is appraised provided the owner shall not have claimed his property during that time ^Deposit with Clerk of County Comrs Court^ ^who^ shall transmit to the the nearest editor of a public newspaper ^Public Printer of the State^ a particular description of such estray or estrays, and the valuation thereof together with the name of the county, and place of residence, certified by the clerk of the county commissioner's court, or justice of the peace before whom such estray or estrays was appraised, to be advertised three weeks in said newspaper—
^Sec. 3.^ And if no owner appears and proves his property within two years after such publication, the property shall be vested in the taker up; nevertheless the former owner may at any time thereafter, by proveing his property recover the valuation money—
^Sec. 4^ 4And if any person shall trade, sell, or take away any such estray or estrays out of the state, for any purpose whatever, before the expiration of said two years, he or she so offending shall forfeit and pay the sum of one hundred and fifty dollars to be recovered by any person suing for the same in any court of record within this state having cognizance thereof—5 The one Half to the informer and the other half to the County Treasury: And where the owner of any Estray head of neat cattle[,] Sheep[,] hog or goat does not prove his property within twelve months after the same has been published at the door of the Court house as aforesaid, and where the valuation does not exceed Five Dollars the property shall be vested in the taker-up, but when the valuation shall exceed Five Dollars, and no owner appears within the time aforesaid the property shall also be vested in the taker up: Nevertheless the former owner may at any time by proving his property recover the Valuation thereof6And it shall not be lawful for any person to take up any estray (except such as shall be herein after excepted) unless he shall be a free holder or a housekeeper— Any person finding an estray horse, mare, or colt runing at large without ^any of^ the settlements of this state may take up the7 same, and shall immediately take such estray or estrays before the nearest justice of the peace and make oath that he has not altered the marks or brands of such estray or estrays since taking up; and if such taker up shall be a free holder or housekeeper, within that county it may and shall be lawful for him to post such estray or estrays as herein before directed in this act; as if the same had been taken up on his plantation or place of residence— And when the taker up shall not be qualified as aforesaid, he
shall take the oaths before required and deliver such Estray or Estrays to the said Justice who shall cause the same to be dealt with as is directed by this Act, but if no owner appears to prove his property withing one Year such Estray or estrays shall be sold to the highest bidder giving public notice of such sale two months previous thereto, and after paying the taker up all reasonable charges, the balance shall be put into the County Treasury— by the said Justice who shall take a Receipt for the same from the County Treasurer. Nevertheless the former owner at any time within three years after taking up by proving his property before the County Commissioners Court of said County and obtaining a Certificate thereof from the Clerk of said Court to the Treasurer, shall receive the balance aforesaid
^Sec. 5.^ And when any justice shall fail to pay any money for any Estray or Estrays, to be sold agreeably to this Act into the County Treasury within three months after selling such Estray or Estray[s] such justice shall forfeit and pay the sum of Twenty Dollars, with Costs to be recovered by action of debt before any Justice of the Peace of the County or other Court having jurisdiction thereof, the one half for the use of the County and the other Half for the use of any person sueing for the same, And moreover be liable to pay the price of such Estray or Estrays with interest thereon—
^Sec. 6^ If any Estray or Estrays taken up as aforesaid shall die or get away before the owner shall claim his or her right the taker up shall not be liable for the same, And if any person shall take up any Estray or Estrays, at any other place within the inhabited parts of this State than his or her plantation or place of Residence or without
being qualified as required by this Act he shall forfeit and pay the sum of Ten Dollars, with Costs recoverable before any Justice of the Peace of the County where the offence shall have been committed and not having property sufficient to pay such fine he shall be liable to be confined one month in the Jail of the County where he may be found, under being found guilty of said offence, according to Law
And any person taking up any Estray or Estrays out of the limits of the settlements of this State and failing to comply with the regulations of this Act shall liable ^[^to the same penalties. And if any person taking up any Estray or Estrays of any species fails to comply with the regulations of this Act he shall for every such offence forfeit and pay to the informers the Sum of Ten Dollars with Costs recoverable before any justice of the County where such offence shall be committed,
^Sec. 7 4^ The County Commissioners Court in each County in this State, shall cause a pound or Stray pen to be erected at or near the Court house, within Three months after the place of erecting the public buildings shall be fixed upon, and as often there after as may be necessary with a good and sufficient post & Rail fence, gate lock and Key, wherein all estray horses[,] mares[,] colts, mules or asses, a taken up within the County, shall be exhibited as aforesaid
And the County Commissioners failing to have such pound or Stray pen erected & Kept in suitable repair, shall severally forfeit and pay the sum of ten Dollars for each
<Page 6>^6^ term of the Circuit Court which may be held after the time for building the same shall have elapsed, until the same shall be erected and until such pound or Stray pen is erected no person taking up any estray horse[,] mare or colt[,] mule or ass as aforesaid shall be liable to any penalty for not exhibiting the same.
The County Commissioners Court in each County in this State, shall employ some fit person to take charge of all such pounds or Stray pens as may from time to time be erected in their several Counties, whose duty it shall be to take charge thereof and to keep the same in repair, and also to attend on the several Court days during the time said Estrays are directed to be kept therein with the key of the same and the said Commissioners Court shall make such reasonable allowance, for erecting & keeping said pound or Stray pen, as to them shall seem proper, to be paid out of the County Treasury in like manner as other County charges are liquidated and paid and any person being employed and undertaking to take care of such pound or Stray pen and failing in his duty agreeably to the directions in this act contained shall forfeit and pay the sum of ten Dollars with Costs to be recovered before any justice of the Peace, the one Half where of shall go to the person sueing for the same and the other Half to the County
It shall be the duty of the taker up of any Estray horse, mare[,] Colt[,] ass or mule to cause the same to be exhibited on
the first day of the next Term of the next Term of the Circuit Court of the County Succeeding the time at which such Estray shall be taken up from ten O'clock A.M. until four O'clock P.M. of said Day, that the owner may have an opportunity of reclaiming his property.
That if any person ^or persons^ shall hereafter stop or take up any keel or flat boat[,] ferry[,] flat batteau, perogue, canoe, or other vessel or water craft found adrift on any water course within the limits or upon the borders of this State and the same shall be of the value of five Dollars or upwards it shall be the duty it shall be the duty of such person or persons within five days thereafter, (provided the same shall not be before that time proven and restored to the owner.) to go before some justice of the peace of the proper County and make affidavid in writing setting forth the exact description of such vessel or craft when and where the same was found whether any and if so what cargo was found on board and that the same has not been altered or defaced either in the whole or in part, since the taking up either by him her or them or by any other person or persons to his her or their knowledge, and the said justice shall thereupon issue his warrant directed to some Constable, of his Township County commanding him forwith to summon three respectable house holders of the neighborhood if they cannot otherwise be had whose duty it shall be after being sworn by said Justice to proceed without delay to examine and appraise such Boat or Vessel & Cargo if any and make report thereof under their hands and seals, to the justice issueing such warrant who shall enter such appraisement together with the affidavid of the taker up at large in his estray book and it shall be the
<Page 8>^8^ further duty of such justice within ten days after the said proceedings shall have been entered on his estray book as aforesaid to transmit a certified Copy thereof to the Clerk of the County Commissioners Court of his County to be by him recorded in his estray book and filed in his office.
Sec 4 11.
In all cases where the appraisement of such Boat or water Craft including her Cargo shall not exceed the sum of Twenty Dollars the taker up shall advertise the same on the door of the Court house and in three of the most public places in the County within ten days after the justices said Certificate shall have been entered on the Records of the County Commissioner[s] Court and if no person shall appear to prove and claim such boat or water Craft within Six months from the time of taking up as aforesaid the property in the same shall vest in the taker up: but if the value thereof shall exceed the sum of Twenty dollars it shall be the duty of the Clerk of the County Commissioners Court within twenty days from the time of the reception of the Justice's said Certificate at his office, to cause an advertisement to be set up on the door of the Court house and also a Notice thereof to be sent to the Public Printer as aforesaid, who shall publish the same as aforesaid, and if the said vessel be not claimed and proven within Six months Six months from said advertisement, the same shall be vested in the taker up, Nevertheless the former owner may at any time thereafter recover the Valuation money by proving his property, allowing to the taker up a reasonable compensation for his trouble, and costs & charges—
In all cases where services shall be performed by any Officers or other person or persons under this act the following fees or compensation shall be allowed Towit To the justice of the Peace for administering oath to the taker up or finder making an entry thereof with the report of the appraisers and making and transmitting a Certificate thereof to the Clerk of the County Commissioners Court Fifty Cents. to the Clerk ^or Justice^ for taking proof of the ownership of and granting a Certificate, of the same Twenty Five Cents, for registering each certificate transmitted to him by any justice as aforesaid twelve and a Half Cents, for advertisements including the newspaper publications, fifty Cents in addition to the Costs of such publication to the Constable for each warrant served on appraisers Twenty five Cents which said fees shall be paid by the taker up to the persons entitled thereto whenever said services shall be rendered, All which costs and charges shall be reimbursed to the taker up or finder, in all cases where restitution of the property shall be made to the owner, in addition to the reward, to which such person may be entitled for taking up as aforesaid—
If any person shall act contrary to the duties enjoined by this Act for which no penalty is herein before pointed out the person so offending shall on conviction thereof forfeit and pay for every such offence not less than five nor more than one hundred Dollars, to be sued for in the name of the proper County before any justice of the peace or other Court having cognisance thereof.
The following acts viz— "an act concerning water Crafts, found adrift lost goods & estray animals" Approved January 31st 1827 and an Act to amend an Act concerning water Crafts found adrift, lost goods and Estray animals approved Jan. 22. 1829, and also An Act to amend an Act entitled an Act concerning water Craft found adrift lost godds[goods] and Estray animals approved Feb. 14. 1831 be and the same are hereby repealed—8
But rights, acquired and liabilities incurred under the acts hereby repealed, are not affected or impaired by this act—
An Act concerning Estrays—
C W H Monday
1Abraham Lincoln wrote portions of this bill; his handwriting is indicated by footnotes.
On December 6, 1834, John T. Stuart introduced this bill, which was partially written by Lincoln, in the House of Representatives. On December 8, the House referred it to a select committee, which reported back the bill on December 9 with an amendment. The House concurred in the amendment, and on December 24, they referred it to the Committee of the Whole. After considering the bill on four separate days, the Committee of the Whole reported back the bill with amendments on January 5, 1835. On January 10, the House passed two amendments changing the fourth section. They rejected an amendment replacing the seventh, eighth, and ninth sections, by a vote of 23 yeas to 25 nays, with Lincoln voting yea. On January 12, the House referred the bill to a select committee, which reported back the bill on January 13 with amendments. The House concurred with the amendments and passed the bill. On February 2, the Senate referred the bill to a select committee. The select committee reported back the bill on February 3 with an amendment, in which the Senate concurred. The Senate passed the bill as amended. The House concurred in the Senate amendment on February 5. On February 9, the Council of Revision approved the bill, and the act became law.
Illinois House Journal. 1835. 9th G. A., 1st sess., 67, 80, 89, 155, 180, 192, 202, 219, 220, 266-68, 278, 286-87, 503, 507, 513; Illinois Senate Journal. 1835. 9th G. A., 1st sess., 250, 251-252, 394, 402, 410-411, 447, 467, 471, 474; Illinois House Journal. 1835. 9th G. A., 2nd sess., 386, 397.
2An estray is any domestic animal found wandering, whose ownership is unknown; the term also applies to water craft found adrift. Farmers in the antebellum midwest commonly turned livestock loose to graze freely on the prairies in mild weather, thus requiring rules for how and when loose animals could be claimed and by whom.
8This act repealed and replaced the following acts: “An Act concerning Water Crafts, Found Adrift, Lost Goods, and Estray Animals,” 31 January 1827, Revised Laws of Illinois (1827), 189-98; “An Act to Amend ‘An Act concerning Water Crafts, Found Adrift, Lost Goods, and Estray Animals,’ Approved January 10, 1827,” 22 January 1829, Revised Laws of Illinois (1829), 72-73; “An Act to Amend an Act, Entitled, ‘An Act concerning Water Craft Found Adrift, Lost Goods, and Estray Animals,’ Approved January 19, 1827,” 14 February 1831, Laws of Illinois (1831), 189-91.
Handwritten Document, 12 page(s), HB 5, GA Session: 9-1, Lincoln Collection, Illinois State Archives (Springfield, IL)