Thompson

The action is “ claim and delivery ” for certain cattle.,

The defendant justified the taking and detention of the cattle, and claimed to recover of the plaintiff certain fees under the statutes of the State permitting and directing him, as Boadmaster of his district, to protect the public roads and highways from the pasturage of cattle; alleging that he found the cattle running at large, pasturing and grazing upon the public roads in his district, and took them up under the acts referred to in his answer—being Acts of the State Legislature for the protection of the public roads of Santa Clara County.

The case is fully presented by the opinion.

In the statute of March, 1874, concerning roads and highways in the County of Santa Clara, (sec. 37) it is enacted that no stock of any kind shall be “ allowed to pasture upon any *654 public highway, and it shall be the duty of all roadm asters and deputy roadmasters, within their respective districts, to take up all animals found pasturing upon the public highways, and to deal with said animals as provided in an act to amend an act concerning estrays and animals found running at large in the County of Santa Clara,” etc.

Upon reference…