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shall have verdict, judgment and execution against the defendant Verdict. which shall appear to have been justly due and owing from the deceased to the plaintiff at the time of the commencement of such suit, any law, usage or custom to the contrary notwithstanding ; provided, also, that any conveyance of, or lien upon property, executed with Proriso. the intention of avoiding the provisions of this Act, shall be deemed and held null and void.

Sec. 3. If any duel shall be fought contrary to the provisions of this Act, and either of the combatants shall be maimed or wounded, Charger the charges incurred by such maimed or wounded combatant, together incurred. with those for the support and maintenance of his family during his sickness, shall be regarded as debts to be recovered, as provided in section second of this Act. And if the party shall die within one year of any wound received in any such duel or fight, the party sur- In case of viving shall pay to the heir or heirs of such deceased, the sum of ten death. thousand dollars, to be recovered as provided in section second, for the recovery of the debts of the deceased.

Sec. 4. Any and every person who shall be present at the time of fighting any duel with deadly weapons, either as second, aid, surgeon or spectator, or who shall advise or give assistance to such duel, shall be a competent witness against any person offending against any of the provisions of this Act, and may be compelled to appear and give evidence before any Justice of the Peace, Grand Jury or Court, in the same manner as other witnesses ; but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying.

Sec. 5. Sections forty one and forty-two of an act entitled An Repeal. Act concerning Crimes and Punishments, passed April eighteenth, eighteen hundred and fifty, are hereby repealed.

Witnesses.

CHAPTER CXXVIII.

AN ACT

Supplementary to and explanatory of an Act entitled an Act to

prohibit Lotteries, Raffles, Gift Enterprises and other Schemes of a like Character, passed April 10th, 1855.

(Approved April 27, 1855.1

The People of the State of California, represented in Senate and

Assembly, do enact as follows :

Section 1. The Act entitled An Act to prohibit Lotteries, Raf- Hock Farm fies, Gift Enterprises and other Schemes of a like character, passed April tenth, eighteen hundred and fifty-five, shall not be construed or held to prohibit or render unlawful the scheme or plan now proposed and maturing for the distribution of the property known as “Hock

Farm," by sub-divisions, called the "Relief Fund of General John A. Sutter :" nor any lottery, raffle, gift enterprise or other schemes aforesaid, within the purview of said last mentioned Act, which was commenced and in part advanced before the passage thereof.

CHAPT ER CXXIX.

AN ACT

Concerning Lawful Fences.

(Approved April 27, 1855.)

The People of the State of California, represented in Senate and

Assembly do enact as follows :

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Section 1. Lawful fences are described as follows, viz.: First. Wire Fence shall be made of post, not less than twelve inches in circumference, set in the ground not less than eighteen inches, and not more than eight feet apart, with not less than three horizontal wires, each one-fourth of an inch in diameter—the first one shall be eighteen inches from the ground, the other two above this one, at intervals of one foot between each, all well stretched and securely fastened from one post to another, with one rail, slat, pole or plank, of suitable size and strength, securely fastened to the post not less than four a half feet from the ground. Second. Post and Rail Fence shall be made of post of the same size and at the same distance apart, and the same depth in the ground as above, with three rails, slats or planks, of suitable size and strength, the top one to be four feet and a half from the ground,

the other two at equal distances between the first, and the ground all securely fastened to the post. Third. Picket Fence shall be the same height as above, made of pickets, each not less than six inches in circumference, not more than six inches apart, driven in the ground not less than ten inches, all well secured at the top by slats or caps. Fourth. Ditch and Pole Fence shall be made of a ditch not less than four feet wide on top, and three feet deep, embankment thrown upon the inside of the ditch, with substantial posts set in the embankment not more than eight feet apart, and a plank, pole, rail or slat securely fastened to said posts, at least five feet high from the bottom of the ditch. Fifth. Pole Fence shall be four and a half feet high, with stakes not less than three inches in diameter, set in the ground not less than eighteen inches, and where the stakes are placed seven feet apart, there shall be not less than six horizontal poles well secured to the stakes; if the stakes are six feet apart, five

; poles ; if three or four feet, four poles ; if two feet apart, three poles, and the stakes need not be less than two inches in diameter ; if one foot apart, one pole, and stakes need not be more than two inches in

Ditch and pole fonce.

Pole fence.

a

certain counties.

certain .

diameter. The above is a lawful fence so long as the stakes and
poles are securely fastened and in a fair state of preservation. Hedge Hedge fence.
Fence shall be considered lawful wben, by reliable evidence it shall
be proved equal in strength, and as well suited to the protection of
enclosed lands as any one of the fences described in other subdivisions
of this section. Sixth. Brush Fence shall be four and a half feet high, Brush fence.
and at least twelve inches wide, with stakes not less than two
inches in diameter, set in the ground not less than eighteen inches,
one on each side, every third foot tied together at the top, with one
horizontal pole tied to the outside stake five feet from the ground.

Sec. 2. Any fence which, by reliable evidence, shall be declared Other fences in as strong, substantial and as well suited to the protection of enclosures as either of the above described, shall be a lawful fence in all the counties of this State, except Sonoma, Napa, El Dorado and Marin.

Sec. 3. In each of the counties named in the preceding section of Lawful fences in this Act, the following described shall be a lawful fence, viz. : First. Post and Rail Fence shall be made of post not less than four by six Post and rail. inches, set in the ground not less than two feet, with rails not less than three inches thick, placed not more than five inches apart, for the first three feet, and after that not more than eight inches apart, the fence to be not less than five feet high. Second. Worm Fence Worm. shall be five feet high, with additional stakes and riders, no greater space to intervene between the rails than in a post and rail fence. Third. Post and Slat Fence shall be of the same height and with the Post and slat. same space

between the slats as above, in this section, the post shall not be less than twelve inches in circumference, and not less than two feet in the ground, the slats to be not less than one and a half inches thick, all well fastened to the post with twelve-penny nails. Fourth. Paling Fence shall be of the same height, and the post of the same Paling. size, and set in the ground the same depth, as in a post and rail fence, with post not more than ten feet apart. Fifth. Ditch Fence shall be Ditch. four feet wide at the top, and three feet deep, with post set in the embankment not over seven feet apart, with three slats not less than four inches wide, and one and a half inches thick, all securely fastened to the post. Or

Sec. 4. Any fence which, by reliable evidence, shall be declared Other lawful as strong, substantial, and as well calculated to protect enclosures as either of those described in the third section of this Act, shall be a lawful fence in each of the counties named in the second section of this Act.

Sec. 5. When a fence shall hereafter be erected by any person on Expense of the line of his land, or that which he may have a lease for one or more years, and the person owning the land adjoining thereto, or holding a lease on the same for one or more years, shall make or cause to be made, an enclosure on the opposite side of such fence, so that such fence may answer the purpose of enclosing his ground also, such

person shall pay the owner of such fence already erected one half the value of so much thereof as serves as a partition fence between them.

Sec. 6. When two or more persons own land adjoining, which is Partition fence. enclosed by one fence, and it becomes necessary for the protection of the rights and interests of one party that a partition fence should be made between them, the other or others, when notified of such fact, Party building shall proceed to erect or cause to be erected one half of such parti

fences.

fence.

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Fences to be on line.

Penalty.

tion fence, said fence to be erected on, or as near as practicable, the line of said land, and if, after notice is given by either party, and a reasonable length of time has elapsed, and the other party persist in refusing to erect or cause to be erected, one half of such fence, the party giving notice may proceed to erect, or cause to be erected, the entire partition fence, and collect by law one half the cost of such fence from the other party.

Sec. 7. All partition fences separating adjoining enclosures, shall stand upon the line, and any person or persons when erecting a partition fence, and refusing to place it on the line dividing such lands, or to remove it to such line when erected otherwise than thereon, shall subject himself to one half the cost of its removal and erection in the right place.

Sec. 8. The respective owners or lessees of lands which now are, or hereafter may be enclosed with fences, shall keep up and maintain in good repair all partition fences between their own and the next adjoining enclosures, in equal shares, so long as doth parties continue to occupy or improve the same.

Sec. 9. Nothing in this Act shall be so construed as to apply to the counties of Butte, Amador, Tuolumne, Calaveras, San Diego, Nevada, San Bernardino, Colusi, Placer, Santa Barbara, Yuba, Trinity, Shasta, Klamath and Siskiyou, and said counties are hereby excepted and excluded from the provisions of this Act.

Sec. 10. An Act entitled An Act concerning lawful fences, &c., passed March thirtieth, eighteen hundred and fifty, is hereby repealed, except as far as the counties exempt from the provisions of this Act are concerned.

Duty of owners.

Counties excepted.

Repeal, with exception.

CHAPTER CXXX.

AN ACT

For securing Liens of Mechanics and others.

(Approved April 27, 1855.]

The People of the State of California, represented in Senate and

Assembly, do enact as follows:

Lien, &c.

Section 1. All artisans, builders, mechanics, lumber merchants, and all other persons performing labor or furnishing materials for the construction or repairing of any building, wharf or other superstructure, shall have a lien on such building, wharf or superstructure, for the work and labor done, or materials furnished by each, respectively.

Sec. 2. When any person shall make an express contract in writing with the owner of any lot or lots, in any incorporated city or town, to grade or improve the same, or the street in front of and ad

Improvement on lot.

benefit of this

joining the same, and shall go on and complete the said grading or improving of said lot, (or the street adjoining to the same) it shall be considered as an improvement upon said lot or lots, and the same provisions of this Act shall apply thereto as would apply if it were a building erected on the said lot or lots.

Sec. 3. Every person wishing to avail himself of the benefits of Duty of person this Act, shall file in the Recorder's office of the county in which wishetites i hava such building, wharf or superstructure is situated, within sixty days Act. after the labor is completed, or the materials furnished, a just and true account of the demand due him, after deducting all proper credits and assets, and shall verify said account by his own oath or the oath of some other person, and shall also file at the same time a correct description of the property to be charged with said lien. If such lien is claimed by a sub-contractor, journeyman or laborer, the account aforesaid shall be filed within thirty days after the work was done, or the materials furnished by him; and within five days after filing such account as aforesaid, he shall serve a copy thereof on the owner or owners of such building, wharf or superstructure, or the agent of such owner, if the latter reside out of the county in which such building, wharf or superstructure is situate. If such owner do not reside within the county, and have no agent therein, service of the copy aforesaid may be made by posting the same in a conspicuous place on the building, wharf or superstructure to be charged with said lien. But nothing in this Act shall be so con- Owner of strued as to make the owner of any property improved liable for property. more than he has contracted to pay.

Sec. 4. On being served with a notice by a sub-contractor, jour- Privilege of neyman or laborer, as provided in the last preceding section, the owner of such building, wharf or superstructure may withhold from the contractor, out of the first moneys to become due to him under the contract, a sufficient sum to cover the lien claimed by such subcontractor, until the validity thereof shall be ascertained by a proper legal proceeding, if the same be contested; and if so established, the amount thereof shall be a valid offset to that extent, in favor of the owner against the contractor.

Sec. 5. The land upon which any building or superstructure shall Land built upon be erected, together with such convenient space around the same, as may be required for the convenient use and occupation of the prem- Limits of ises, not to exceed five hundred square feet, shall also be subject to the liens created by this Act, if at the time the work and labor was done, or the materials furnished, the said land belonged to the person who caused said building or superstructure to be erected; but if such person owned less than a fee-simple estate, in said land, then only his inte- Persone owning rest therein shall be subject to said lien, and the liens created by this fee-simple, Act shall be preferred to every other lien or incumbrance which shall have attached upon the said property subsequent to the time at which the work was commenced or the materials furnished, but nothing herein contained shall be construed as impairing any valid incumbrance upon

the said land, duly made and recorded before such work was commenced or materials furnished.

Sec. 6. The account required to be filed by the second section of Specification. this Act, shall specify that it is the intention of the holder thereof to claim a lien upon the premises sought to be charged therewith, and it shall be the duty of the Recorder to file and record such notice Recorder's duty

owner.

said land.

less than a

Preferred liens.
Proviso.

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