Estray defined; who

AN ACT authorizing and prescribing the procedure for the taking up and sale of estrays, and repealing Article 3, Chapter 2, Statutes of Oklahoma, 1893.

Be it Enacted by the Legislative Assembly of the Territory of Oklahoma:

SECTION 1. Any homesteader, land owner, or lessee may take up. of land for a term of not less than one year, may take up

Posting notice of estray.

any estray horse, mule, ass, cattle, sheep, or swine found upon his premises, or the premises of any one in the same county, to whom he has given five days previous written notice of his intention to do so: Provided, No animal shall be estrayed unless known to the taker-up as an estray for the period of at least three months in the case of sheep or swine, and six months in the case of all other kind of estrays, next prior to the time of the taking up: And, provided further, That if the owner of any animal shall have recorded in the office of the clerk of the county in which the same is found, as required by law, the brand that is upon such animal, the same shall be deemed not an estray: And, provided further, East of Range 14 West of Indian Meridian any estray may be taken up immediately after it is known as an estray.

SECTION 2. The person taking up an estray, shall, within three days thereafter, post up in the county three notices describing such estray by kind, color, age, sex, and, if any, by marks and brands, and giving the name and postoffice address of the taker-up, which notices shall be conspicuously posted as follows: One at the court house door, and one at each of the two postoffices nearest the land upon which such estray was found.

Affidavit be

SECTION 3. If, after the expiration of fifteen days fore county from the time an estray is taken up, the same is not claim. clerk; bond. ed and retaken by the owner or his agent, the taker-up shall forthwith go before the county clerk and make affidavit, corroborated by one credible witness, setting forth a description of the estray by kind, color, age, sex, and, if any, by marks and brands, that such marks and brands are the same that were on such estray when taken up, the full cash value of the estray, the place where and time when taken up, that the animal was known as an estray for at least three months, in the case of sheep or swine, and at least six months in the case of all other astrays, before the taking up, that he did not drive or cause the estray to be driven on the premises where taken up, a copy of the notices posted up, that such notices were posted up as required by Section 2 of this Act, and if such estray was found upon the premises of another, that he gave five days previous written notice of his intention to do so before taking up, and the postoffice address of the taker-up. At the same time the taker-up shall execute and deliver to the county clerk, to be approved by him, a bond in double the value of such estray payable to the probate judge of the county, for the use and benefit of the owner of the estray and of the county, and conditioned as follows: That the taker-up shall comply with the requirements of this Act, that he will not keep such estray out of the county for a longer period than five days at any one time, that he will not injure or abuse such estray, and that if the owner or the county sustain damage by reason of his breach of any of the conditions specified in this bond, then, and in that event, he shall forthwith pay such damage, which bond may be sued on by either the owner of the estray or the county, or by both, in joint or separate actions.

county clerk

SECTION 4. Upon the making of the affidavit and the Duties of making and approving of the bond required by Section 3 of this Act, the county clerk shall forthwith note the fact, together with a description and the value of the

Same; advertising.

estray, the place where and the time when taken up, the name and postoffice address of the taker-up, as the same appears in such affidavit, in a book to be kept by him for the purpose of preserving a record of the procedure before him in estraying animals. At the same time the county clerk shall prepare and deliver to the taker-up or his agents a written notice over his official signature describing the estray by kind, color, age, sex, and, if any, by marks and brands, the place where and the time when taken up, and giving the name and postoffice address of the taker-up. The affidavit and bond shall be safely kept by the clerk: Provided, After the expiration of twelve months from the time the same was filed with him, he may destroy such affidavit.

SECTION 5. The taker-up shall cause the notice mentioned in Section 4 of this Act to be published three consecutive weeks in some weekly newspaper published in the county, and he, or some other competent person for him shall forthwith thereafter make affidavit that such publication was made, stating therein the actual cost of the publication, and attaching thereto a copy of such notice clipped from such newspaper, which paper shall be named in the affidavit, and shall file the same with the county clerk, who shall forthwith note the fact in the book mentioned in Section 4 of this Act, in connection with the first entries required to be noted by him in regard to such estray. The clerk shall then issue to the taker-up a certificate describing such estray, giving the place where and time when the same was taken up, and the name and postoffice address of the taker-up, and stating therein that the taker-up has complied with the law authorizing him to sell such estray, and at the same time shall note the time of issuing such certificate in connection with the entries heretofore required to be noted by him, and in the same book: Provided, Such certificate shall not issue until after the expiration of three months from the time of the taking up in the case of estrayed

swine or sheep, and six months in the case of all other estrayed property.

publication.

SECTION 6. If there be no weekly newspaper publish- Manner of ed in the county the notice mentioned in Section 4 of this Act shall be published as follows: A copy thereof shall be posted at the court house door, and three other copies shall be posted up in as many other public places in the county, and proof of such publishing shall be made by affidavit filed with the county clerk in the same manner as required in the case of publication in the newspaper: Provided, Such proof shall not be made until such notices have remained posted up at least twenty days.

SECTION 7. The taker-up may use an estray lawfully Use of estraytaken up by him with care and moderation, if he do not

injure or abuse it, but if such estray is damaged through

his negligence, he shall be liable for such damage.

SECTION 8. When the taker-up shall have complied Notice of sale. with the law and shall have obtained the clerk's certificate mentioned in Section 5 of this Act, he may post up at the court house door a notice of the sale of such estray, and not less than ten days thereafter, in conformity to such notice, may sell or cause the same to be sold at public outcry to the highest bidder, for cash, at the court house in the county, between the hours of twelve noon, and two P. M.: Provided, Such sale shall be on the first day of the term of the probate court of the county next following the date of such clerk's certificate, if such first day of the term be not less than twenty days after the issuance of such certificate, otherwise, on the first day of the second term of such court following the date of such certi cate: And, provided further, That such sale shall be made within six months in the case of estrayed swine and sheep, and within twelve months in the case of all other estrayed property, from the time the same was taken up. SECTION 9. Immediately after the sale of any estray the taker-up shall endorse the fact of such sale upon the certificate issued to him by the clerk, and shall return such certificate to the clerk, who shall note the fact

Taker up to pay county.

Owners' power of recovery.

in connection with the other entries required by this Act to have been previously noted by him in regard to such estray. At the same time the taker-up shall pay into the county treasury, for the use and benefit of the county school fund one-half of the proceeds of said sale, after first deducting from such proceeds the costs actually incurred by him in making the affidavits, publishing the notices, and in having the county clerk to make the entries and issue the certificate required by this Act.

SECTION 10. At any time before the affidavit required by Section 3 of this Act is made by the taker-up before the clerk, the owner of such estray or his agent, may claim and retake the same from the taker-up by proceeding as follows: He or his agent shall make an affi davit that he is the owner of such estray, describing the same therein by kind, color, age, sex, ard, if any, by marks and brands, and shall file the same with the justice of the peace within whose jurisdiction such estray was taken up, together with the corroborating affidavit of one credible witness that he has seen the estray and knows the claimant to be the owner thereof; or of two credible witnesses that they have read the description of the estray given in the claimant's affidavit and know him to be the owner of an animal corresponding with such description, and believe the estray to be the identical animal described; or of three credible witnesses residing in the county that they have read the description of the estray given in claimant's affidavit and believe upon information obtined from other sources than the claimant that he is the owner thereof, which affidavit shall be made before an officer of the county authorized by law to take affidavits, and when filed with such justice shall be safely kept by him for a period of twelve months thereafter, unless called for by the county attorney or the foreman of a grand jury of the county, who may demand and receive the same at any time. At any time after the affidavit required by Section 3 of this Act shall have been made by the