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to the lands and tenements therein mentioned, at any time, on or before the third day of the return of such scire fucias ; and any other person claiming an interest in such estate, may appear and be made a defendant, and plead as aforesaid, by motion for that purpose in open court, within the time allowed for pleading as aforesaid ; and if no person shall appear and plead, or appearing, shall refuse to plead within the time, then judgment shall be rendered that the State be seized of the lands and tenements in such information claimed; but if any person
appear, and deny the title set up by the State, or traverse any material facts in the information, an issue or issues shall be made up and tried, as other issues of fact, and a survey may be ordered and entered as in other actions, where the title or boundary of lands is drawn in question; and if, after the issues are tried, it shall appear from the facts found or admitted, that the State hath good title to the lands and tenements in the information mentioned, or any part thereof, judgment shall be rendered, that the State be seized thereof, and recover costs of suit against the defendant.
Sec. 4. When any judgment shall be rendered, that the State be seized of any land, tenements or hereditaments, such judgment shall contain a certain description of such estate, and shall be effectual for vesting the title in the State; and a writ shall be issued, directed to the sheriff of the same county, commanding him to seize and take the lands, tenements and hereditaments so vested in the State, into his hands; and upon the return of such writ of seizure, the attorney general or circuit attorney prosecuting such information, shall cause the record and process to be exemplified under the seal of the court, and deposit the same in the office of the auditor of public accounts, and shall also cause a transcript of the judgment to be recorded in the office of the recorder of the county in which the land lies; and such judgment shall preclude all parties and privies thereto, their heirs and assigns, so long as such judgment shall remain in force.
Sec. 5. Any party who shall have appeared to any proceeding as aforesaid, and the attorney general or circuit attorney, on behalf of the State, shall respectively have the same right to prosecute an appeal or writ of error upon any judgment as aforesaid, as parties in other cases.
Scc. 6. The auditor of public accounts shall keep just and true accounts of all moneys paid into the treasury, and of all lands vested in the State as aforesaid ; and if any person
shall appear within ten years after the death of the intestate, and claim any money paid into the treasury as aforesaid, as heir or legal representative, such person may file a petition to the circuit court, as a court of chancery for the county in which the seat of government may be, stating the nature of his claim, and praying such money may be paid to him; a copy of which petition shall be served upon the attorney general, who shall put in an answer to the same, and the court shall thereupon examine the said claim, and the allegations and proofs, and if it shall find that such person is entitled to any money paid into the treasury, such court shall, by an order, direct the auditor of public accounts to issue his warrant on the trcasurer for the payment of the same, but without interest or costs; a copy of which order, under the seal of the court, shall be a sufficient voucher for the issuing such warrant. And if any person shall appear and claim any lands vested in the State as aforesaid, within five years after the judgment was rendered, it shall be lawful for such person (other than such as were served with a scire facias or appeared to the proceeding, their heirs or assigns,) to file his petition in the circuit court, (as a court of chancery,, of the county in which the lands claimed, lie, setting forth the nature of his claim, and praying that the said lands may be relinquished to him; a
copy of which petition shall be served on the attorney general, or circuit attorney of the district, who shall put in an answer, and the court thereupon shall examine said claim, and the allegations and proofs ; and if it shall
is entitled to the lands claimed, the court shall decree accordingly, which shall be effectual for divesting the interest of the State in or to the lands; but no costs shall be adjudged against the State ; and all persons who shall fail to appear and file their petitions within the times limited aforesaid, shall be forever barred; saving, however, to infants, married women and persons of unsound mind, or persons beyond the limits of the United States, the right to appear and file their petitions as aforesaid, at any time within five years after their respective disabilities are removed : Provided, however, That the General Assembly may cause such lands to be sold at any time after seizure, in such manner as may be provided by law. In which case the claimants shall be entitled to the proceeds, in lieu of the land, upon obtaining a decree or order as aforesaid.
APPROVED: March 3, 1845.
up from first April to first November; fees for
taking up. 7. Proof of taking up, how made. 8. When estray proved and taken away before ap
praisement, charges to be paid. 9. Estrays not to be used before advertising, ex
cept in certain cases. 10. Advertisement of estray horse, mare or colt,
mule or ass, to be made in paper of public
printer. 11. When no owner appears, property vested in
at large out of the settlements, may be taken
up, and how disposed of. 14. When owner does not claim within one year,
property may be sold; nevertheless, owner may appear within two years and claim bal
ance due from such sale. 15. Justice of the peace, penalty for failing to pay
over money for estray sold. 16. If estray dies before owner claims, taker up not
liable; and penalty for illegal taking up, or failing to comply with requisitions of this
chapter. 17. Boat or water craft, taker up how to proceed,
and duty of justices of the peace. 18. How taker up to proceed when value does not
exceed twenty dollars; but when value ex
ceeds twenty dollars, duty of clerk. 19. Fees, to whom and how paid, and amount of. 20. Penalty, when not otherwise herein specified;
its amount; in whose name and before whom suits may be brought.
12. Penalty for trading, selling, or taking away es
tray before one year; and how disposed of
Section 1. Every person who shall take up any estray horse, mare, colt, mule or ass, after having given not less than ten nor more than fifteen days' notice, by posting up notices in three of the most public places in the justice's district in which he resides, shall 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.
Sec. 2. The said justice shall then issue his warrant to three disinterested housekeepers in the neighborhood, unless they can otherwise be had, causing them w 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 appraisment, 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.
Sec. 3. Any person who shall take up any head of neat cattle, sheep, hog or goat, after having given the notice required in section one of this chapter, shall go with some householder before a justice of the peace 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 coll, 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.
Sec. 4. Every such clerk shall cause a copy of such description and valuation of every neat cattle, sheep, hog and goat returned to him, 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.
Sec. 5. 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.
Sec. 6. 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.
Sec. 7. Proof of the giving of notice as required in the first and third sections of this chapter, may be made by the oath of the person advertising, or a credible witness, previous to the appraisement.
Sec. 8. If the owner of any such animals shall prove and take them away, before the appraisement thereof, he shall pay to the person who has care of the same, all reasonable charges for taking up and keeping the same.
Sec. 9. It shall not be lawful for persons taking up estrays, to use the same previous to advertising them, unless it be to milk cows, and the like, for the benefit and preservation of such animals.
Sec. 10. 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 indorse thereon, "Estray papers,” together with the sum of one dollar, to pay the said printer; which sum the taker up is required to deposit 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.
Sec. 11. And if no owner appear and prove 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.
Sec. 12. 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 tho value of the property, one-half to the owner thereof, and the other half to the county treasury; 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 appear 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 can not 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.
Sec. 13. Any person finding a stray horse, mare, colt, mule or ass, 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 justice 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 chapter, 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 chapter.
Sec. 14. If no owner appear 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; 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.
Sec. 15. And when any justice of the peace shall fail to pay any money for any estray or estrays to be sold agreeably to this chapter, 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.
Sec. 16. 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 chapter, 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
such fine, he shall be liable to be confined one month in the jail of the county where he may be found, being 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 chapter, shall be liable to the same penalties; and if any person, taking up any estray or estrays of any species, fail to comply with the requisitions of this chapter, 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 shail be committed ; one-half to the use of the county, and the other half to the use of the person suing for the same.
Sec. 17. If any person or persons shall hereafter stop or take up any keel or flat boat, ferry flat, batteau, pirogue, canoe, or other vessel or water craft, or rast 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 inake 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 can not 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