instead of such judgment the justice may in his discretion enter judgment for a return of the beasts to the defendant, to be held by him irrepleviable by the plaintiff, and for defendant's damages for the taking thereof by the replevin and for his costs of suit. In case the plaintiff in replevin shall not enter his suit in replevin, the defendant may file his complaint before the justice and have judgment against the plaintiff as above provided. SEC. 13. When the beasts are returned to the defendant pursuant to such judgment, they shall be held and disposed of in like manner as if they had not been replevied. SEC. 14. If it shall appear upon the default of the defendant or otherwise, that the beasts were taken without sufficient or justifiable cause, the plaintiff shall have judgment for his damages caused by the unjust taking and detaining of the beasts, and for his costs of suit. SEC. 15. Either party may appeal from the final judgment of the justice, as in other civil actions tried before a justice of the peace. SEC. 16. When the sum demanded for damages exceeds twenty dollars, or when the property in the beasts is in question, and their value exceeds that sum, or when title to real estate is brought in question, the case shall, at the request of either party, be transferred to the court of common pleas in the same county, and be there disposed of in like manner as civil actions before justices of the peace are disposed of, where title to real estate is brought in question by the pleadings. SEC. 17. If the aggrieved person shall proceed by action against the owner or keeper of the trespassing beasts, he shall get two disinterested inhabitants of the same town wherein the trespass was committed, to appraise the damages, and to give him a memorandum thereof in writing under their hands, which certificate shall be attached to his writ, and shall make an essential part thereof; and under no circumstances shall he recover of the defendant in such action, unless such appraisal and certificate shall be made within ten days of the time such trespass was committed, nor then to a greater amount of damages than the amount named in such certificate. SEC. 18. Nothing in this chapter contained shall be construed to impair the right of any proprietor or occupant of land to recover all the damages which he shall sustain by any cattle, sheep, horses or hogs breaking into his land, through that part of the division fence between him and the adjoining owner, which it is the right and duty of such adjoining owner to repair, if such part of said division fence shall at the time be out of repair or not conformable to law. SECTION 1. If any person shall find any horse, neat beast, sheep or hog on his own land, damage feasant, not knowing to whom the same belongs, he may take up such animal as an estray, and within ten days thereafter he shall repair to the town clerk of the town in which the same was taken up and give notice thereof. SEC. 2. The town clerk shall thereupon cause to be made three notifications, attested under his hand, setting forth the natural and artificial marks of such animal: one of which notifications he shall cause to be set up in the same town, and the other two in some public places in the next two towns in the state, and shall also cause such notifications to be published in one of the newspapers printed in the town nearest to that in which such estray shall be taken up. SEC. 3. Any animal so strayed and taken up shall be kept by the person who took it up, one year and a day, and if it be a horse, to have a withe kept about his neck the whole of said time. SEC. 4. Any person laying just claim to such animal may, at any time within the year and a day, have the same again upon paying the just and reasonable charges of keeping, crying and notifying as aforesaid, over and above the actual benefit derived froin the use of the same. SEC. 5. In case any difference shall arise between the said parties about the charge of keeping such animal, the same may be referred to three justices of the peace within said town, who shall hear and determine the same, according to justice and equity, and shall tax costs as in other cases. SEC. 6. In case no owner shall appear within said year and a day, the person who took up said animal shall repair to the town clerk, taking with him two electors of the neighborhood, who shall be, by the town clerk, engaged to make a faithful and true ap praisal of said animal; and the person who took up said animal shall pay one half of the sum said animal shall be appraised at, after all just charges are deducted, into the hands of the town clerk, who shall give him a certificate from under his hand that he has proceeded according to law with said animal; whereupon the said person may convert the same to his own use. SEC. 7. Any person taking up any such animal and not proceeding as is by this chapter required, shall forfeit five dollars; one half thereof to the use of the town where the offence shall be committed, the other half to the use of him who shall sue for the same. SEC. 8. The person who shall take up any such animal may lawfully use the same during the year and day it may be in his possession, after he has given notice thereof to the town clerk, as required in the first section of this chapter. SEC. 9. Each town clerk shall keep a fair record of all his proceedings under this chapter, and shall pay all moneys by him received for any such estrays, and for which no owner appears, into the town treasury, immediately on receipt thereof; and the town clerk shall be paid for every animal so cried, and for every advertisement posted up or printed as aforesaid, twelve cents; and if no owner appear, and it be appraised and he give a certificate as aforesaid, he shall have twenty-five cents therefor. SEC. 10. The provisions of this chapter shall not extend to any town where other provision on this subject is made by law. TITLE XVI. Of Fisheries. CHAPTER 96. Of free and common oyster fisheries. CHAPTER 99. Of the fishery in Pawcatuck river. 7. Penalty for violation of the preceding 16. Commissioners to give notice of the section. 8. No quahaugs or clams to be taken from certain beds at certain seasons. 9. Dredges, use of, on board of boats or otherwise, in taking oysters, prohibited. mooring and removal of such buoys. 17. No oysters to be taken from such bed or set until the buoy is removed. 18. Penalty for violating any provision of sections twelve, thirteen, fourteen and seventeen. 19. Other penalties on persons convicted a second time. 10. Under-rake may be used in Point Judith ponds. 11. Penalty for breaking up or injuring 20. Certain ponds declared free and comoyster-beds. mon oyster fisheries. SECTION 1. Any person who shall take any oysters from the free and common oyster fisheries in any of the waters of this state, or expose any oysters for sale taken therefrom, within this state, at any time between the fifteenth day of May and the fifteenth day of September in each year, shall forfeit twenty dollars for each offence. SEC. 2. Any person who shall take more than three bushels of oysters, including shells, during each twenty-four hours, from any of the free and common oyster fisheries within the waters of this state, south of a line drawn from the southerly end of Fox point, extending easterly to a monument set up by the commissioners of shell fisheries, on the Seekonk shore, (said line running northerly of "East Bed" so called,) shall forfeit twenty dollars for every bushel so taken over and above said three bushels. SEC. 3. Any person who shall take more than five bushels of oysters, including shells, during each twenty-four hours, from any of the free and common oyster fisheries within this state, north of the line named in the next preceding section, shall forfeit twenty dollars for every bushel so taken over and above said five bushels. SEC. 4. Any person who shall plant upon any private bed, any oysters taken from the free and common oyster fisheries within this state, south of the line named in the second section of this chapter, shall forfeit twenty dollars for each bushel so planted. SEC. 5. Any forfeiture incurred by a violation of any of the provisions of either of the three sections next preceding, shall be recovered by separate complaint and warrant, and shall enure, one half thereof to the complainant, and the other half thereof to the state. SEC. 6. No boat or vessel shall be used for taking oysters from any free and common oyster fishery within the waters of this state, by more than two persons during each twenty-four hours; nor shall any boat or vessel be used for taking from any such free and common oyster fishery south of the line named in the second section of this chapter, more than three bushels of oysters, or north of said line more than five bushels of oysters, to each of said persons during each twenty-four hours; nor shall any boat or vessel be used for taking oysters as aforesaid both above and below said line, within each twenty-four hours. SEC. 7. Any person who shall violate any provision of the next preceding section shall be fined twenty dollars for each bushel of oysters beyond the number of bushels therein authorized to be taken, one half thereof to the use of the complainant and the other half thereof to the use of the state, to be recovered by separate complaint and warrant. SEC. 8. Any person who shall take any quahaugs or clams from long bed, west bed, or from great bed, so called, in Providence river, between the fifteenth day of May and the fifteenth day of September in each year, shall forfeit twenty dollars for each offence. SEC. 9. Any person who shall take any oysters from any free and common oyster fishery within the waters of this state with dredges, or with any other instrument, or by any other method more destructive to oyster-beds than the usual method of taking them by oyster tongs, or shall with such dredge or other instrument as aforesaid rake over any oyster-bed, under any pretence or for any purpose whatever, or shall have such dredges or other instruments as aforesaid on board any boat or vessel employed in taking oysters within the waters of this state, shall forfeit the boat or vessel with its tackle, apparel and furniture, and all implements thereto belonging, on board of which such dredge or other instrument aforesaid may have been used, or may be or may have been found; and in addition thereto, each and every person on board such boat or vessel shall forfeit three hundred dollars. SEC. 10. Nothing in the next preceding section shall be construed to prevent any citizen of this state from taking oysters in Point Judith ponds, in South Kingstown, by a certain instrument long used in said ponds, known by the name of an under-rake, and described as follows: the handle of said rake being fifteen to twenty feet in length, the head from one to two feet in length, filled with iron teeth from six to ten inches in length, and mostly used through holes cut in the ice. SEC. 11. Every person who shall knowingly and wilfully break up, damage or injure any bed of oysters within the waters of this state, shall be fined five hundred dollars for each offence; one half thereof to the use of the complainant and the other half thereof to the use of the state. SEC. 12. All persons taking oysters from any bed in the free and common oyster fishery within the waters of this state, shall at the time of such taking, cull out and restore to said bed all small oysters, shells, stones and other substances valuable to said bed, retaining only such oysters as are fit for market and present use. SEC. 13. No person shall take oysters from a public oyster |