In force Feb.[February] 9, 1835.
AN ACT concerning Estrays.
Duty of persons taking up estrays.
Sec.[Section] 1. Be it enacted by the people 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 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, 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 housekeepers in the neighborhood, unless they can otherwise be had, causing them to come before him to appraise said estray, after they
<Page 2>or any two of them being sworn to appraise such estray, without partiality, favor or affection, which appraisement, together with the marks, brands, stature, color, and 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 housekeeper 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 housekeeper, upon oath, a particular description of the marks, brands, color, and age of every such neat cattle, sheep, hog or goat, and said 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 directed: Provided, That in all cases where the value of such neat cattle, sheep, goat or hog, does not exceed five dollars, said justice shall not be required to make a return to the clerk as aforesaid; but shall enter in his estray book the description and appraisement value of such sheep, hog or goat, and advertise the same in three of the most public places in his neighborhood; 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 inclosure 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.
Duty of county clerk.
Sec. 2. It shall be the duty of the clerk of the county commissioners’ court, when the description and valuation of any estray horse, mare or colt, mule or ass, shall be transmitted to him by the justice as aforesaid, and in ten days thereafter, make out a copy thereof, and transmit the same to the public printer of the State, and endorse thereon, “Estray papers,” together with the sum of one dollar, to pay the said printer; which sum the taker up is required to deposite with the clerk prior to the expiration of said ten days. It shall be the duty of the public printer to publish said advertisement, and transmit one copy of each number of his paper to each of the clerks of the county commissioners’ court of the several counties of this State, free of charge, which shall be regularly filed by said clerks in their respective offices for the examination of those who may desire it.
Owner failing to appear within one year, property vested in taker up.
Sec. 3. And if no owner appears and proves his property within one year after such publication, the property shall be vested in the taker up; nevertheless, the former owner may, at any time thereafter, by proving his property, recover the valuation money, upon payment of costs and all reasonable charges.
Penalty for selling estrays out of the state.
Persons taking up estrays shall be householders.
Unless found without any settlement.
Shall be sold and
Charges of taker up to be paid out of the proceeds. Balance paid into the county treasury.
Sec. 4. And 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 one year, he or she so offending, shall be liable to indictment in the circuit court of the proper county, and on conviction thereof, shall be fined in a sum double the value of the property, one half to the owner thereof, and the other half to the county treasury;1 and when 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 when 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 thereof, upon payment of all reasonable costs and charges; and if the taker up and the owner cannot agree upon the charges, they shall call upon three disinterested householders, whose decision shall be binding on both parties; and it shall not be lawful for any person to take up any estray, (except such as shall be hereinafter excepted,) unless he shall be a freeholder or a housekeeper. Any person finding an estray horse, mare or colt, running at large without any of the settlements of this State, may take up the same, and shall immediately take such estray or estrays before the nearest jus-
<Page 4>tice of the peace, and make oath that he has not altered the marks or brands of such estray, since taking up; and if such taker up shall be a freeholder or housekeeper within that county, it may, and shall be lawful for him, to post such estray or estrays as hereinbefore 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 oath before required, and deliver such estray or estrays, to the said justice, who shall cause the same to be dealt with as directed by this act; but if no owner appears to prove his property within one year, such estray or estrays shall be sold to the highest bidder, giving public notice of such sale twenty days previous thereto, the purchaser giving a bond and approved security, payable to the county commissioners’ court of the county where such estray shall be taken up,2 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 two years after taking up, by proving his property before the clerk of the county commissioners’ court of said county, or before the justice of the peace before whom the property was taken up, and obtaining a certificate thereof from the clerk of said court or justice of the peace, to the treasurer, shall receive the balance aforesaid.
Penalty for justice not paying over such balance.
Sec. 5. And when any justice of the peace 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 estrays, 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 suing for the same; and moreover, be liable to pay the price of such estray or estrays, with interest thereon.
Taker up not liable for escapes.
Penalty for persons taking other than on their own plantation.
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, being
<Page 5>found guilty of such 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 requisitions of this act, shall be liable to the same penalties; and if any person, taking up any estray or estrays, of any species, fails to comply with the requisitions of this act, he shall, for every such offence, forfeit and pay to the informer, the sum of ten dollars, with costs, recoverable before any justice of the county where such offence shall be committed; one half to the use of the county, and the other half to the use of the person suing for the same.
Duty of takers up of water craft.
Sec. 7. 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, or raft of timber, or plank, 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 of such person or persons, within five days thereafter, (provided the same shall not before that time be proven and restored to the owner,) to go before some justice of the peace of the proper county, and make affidavit 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 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 county, commanding him forthwith, to summon three respectable householders 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, and cargo, if any, and make report thereof, under their hands and seals, to the justice issuing such warrant, who shall enter such appraisement, together with the affidavit of the taker up, at large in his estray book; and it shall be the further duty of said justice, within ten days after the said proceedings shall have been entered in 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.
Where the value thereof does not exceed twenty dollars.
Where it does exceed twenty dollars.
Sec. 8. 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 justice’s said certificate shall have been entered on the records of the county commissioners’ court, and if no person
<Page 6>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 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 and charges.
Fees of the different officers in estray cases.
Sec. 9. 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, to wit: 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 cost of such publication; to the constable for each warrant so served on appraisers, twenty-five cents; and to each appraiser the sum of twenty-five cents; which said fees shall be paid by the taker up to the person 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.
Sec. 10. 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 cognizance thereof.
Sec. 11. The following acts, viz: “An act concerning water crafts found adrift, lost goods, and estray animals,” approved, January 31st, 1827; and “An act to amend an act concerning water crafts found adrift, lost goods, and estray animals,” approved, January 22d, 1829; and also,
<Page 7>“An act to amend an act entitled an act concerning water crafts found adrift, lost goods, and estray animals,” approved, February 14, 1831, be, and the same are hereby repealed; but rights acquired and liabilities incurred under the acts hereby repealed, are not affected or impaired by this act.
Approved, Feb. 9, 1835.
1On January 10, 1835, the House of Representatives concurred in an amendment from Orlando B. Ficklin that added the language from “be liable” to “country treasury.”
Illinois House Journal. 1835. 9th G. A., 1st sess., 266.
Printed Document, 7 page(s), Laws of the State of Illinois, Passed by the Ninth General Assembly, at their First Session (Vandalia, IL: J. Y. Sawyer, 1835), 229-35, GA Session: 9-1