2. In every other case, it cannot exceed ten dollars, besides the fees of witnesses, attending from another county.

But the prevailing party is entitled, in addition to the sum specified in this section, to the fees and expenses allowed by law. for a commission issued to examine a witness not residing in the county or in an adjoining county; and for each adjournmen exceeding one, which was granted upon the application of the party against whom the judgment is rendered.

Substituted for L. 1866, ch. 692, § 2 (6 Edm. 804); L. 1841, ch. 138. § (4 Edm. 546); L. 1895, ch. 597.

§ 3077. Costs upon demurrer.

Where judgment is rendered upon the trial of a demurrer, the costs of the trial must be included therein; otherwise costs are not allowed upon the trial of a demurrer.

See Co. Proc., § 64, subd. 11.

§ 3078. Taxation of costs.

Where a justice renders a judgment, he must specify, in his docket-book, the items of costs, which were allowed by him Before any item of costs is thus allowed, other than a fee to the justice, or to a juror or witness who attended, or to a co stable who has certified the amount of his fee, upon a paper file with the justice, the party must show, by his oath, or that of his attorney, to the satisfaction of the justice, that the itez was actually and legally paid or incurred.

§ 3079. Increased costs.

Increased costs must be awarded in favor of the defendant in an action in a justice's court, in a case, and increased at the rate, specified in section 3258 of this act.

§ 3080. Costs on judgment for one or more defendants In an action against two or more defendants, not united interest, who make separate defences by separate answers. the plaintiff fails to recover judgment against all, the justi must award costs to those who have judgment in their favor. 2 R. S. 616, § 18 (2 Edm. 639).

§ 3081. Costs wrongfully collected may be recovered

back.

Where a justice includes in a judgment a greater amount of costs than is allowed by law, or an improper item of costs or fes and the same is collected; the person from whom it was collecte may, notwithstanding the judgment, recover from the justic who has received it, the amount thereof, with interest.

2 R. S. 266, § 230 (2 Edm. 274).

882

TITLE X.

on special proceeding, relating to an animal straying upon the highway.

Decision in favor of petitioner; warrant to sell; execution thereof. Application of proceeds of sale.

Disposition of surplus.

Id.; when no claim made within a year.

Order upon claim for surplus; appeal therefrom.

Proceedings upon decision in favor of person answering.

Demand of possession before trial. Proceedings thereupon.

Id.; when animal wilfully set at large by third person.

Action by petitioner and by officer.

Demand of possession after final order and before sale.
Order upon demand of possession; appeal therefrom.

Id.; stay of proceedings.

Appeal from final order.

Id.; by claimant; stay of proceedings and delivery of possession. Proceedings upon affirmance.

Limitation of action for seizing animals.

Certain actions cannot be maintained.

Where several animals are trespassing, damages are entire. Proceedings in such cases.

Proceedings in other cases, where there are different owners.
Surplus, where there are different owners.

When one action, etc., supersedes any other,

Rights of officer when private person fails to prosecute.
Person having a special property deemed owner.
Agent may act for his principal.

Action against person suffering animals to stray. erson, who suffers or permits one or more cattle, horses, ses, mules, swine, sheep, or goats, to run at large, or to 1 or pastured, in a public street, highway, park or place, e than in a city, incurs thereby the penalty or penalties in the next section; and any resident of the town, or r to whom a fine or penalty is to be paid for the benefit oor, as prescribed in section 2875 of this act, or the or superintendent of the poor of the town or district, one or more of those animals are found so running at rded, or pastured, may maintain an action against him, ice's court, held in that town or district, to recover the r penalties so incurred. Where the action is brought vate person, the justice must pay the proceeds of an issued upon a judgment therein in favor of the plaintiff, ucting the costs, to the officer, who might have brought 1, as prescribed in this section, to be applied by him to rt of the poor within his town or district.

ch. 459, § 1 (3 Edm. 547); L. 1872, ch. 776, § 1 (9 Edm. 476); L. 14 (7 Edm. 185).

Penalties to be recovered.

plaintiff recovers judgment, in an action brought as in the last section, the justice must award to him the

following sums, by way of penalties, besides the costs of the action:

1. For each horse, colt, ass, mule, swine, bull, ox, cow, or call, five dollars..

1.

2. For each sheep or goat, one dollar.

The entire amount of the penalties may be recovered, in one action, although it exceeds the sum, for which a justice car render a judgment in an ordinary action.

§ 3084. Certain officers to seize animals straying. Where one or more cattle, horses, colts, asses, mules, swine. sheep, or goats are found running at large, or being herded or pastured, in a public street, highway, park, or place, elsewhere than in a city, the overseer of highways of the road district, or, if they are so found within an incorporated village, the street commissioner thereof, having personal knowledge or being noti fied of the fact, must immediately seize the animal or animals and keep it or them in his possession, until disposed of as prescribed in the following sections of this title.

See note to § 3082, ante.

§ 3085. When private person may seize such animals. Any person may seize one or more animals specified in the last section, then running at large, or being herded or pastured, in a public street, highway, park, or place, elsewhere than in a city, bordering upon real property owned or occupied by him; or the trespassing upon real property so owned or occupied, having entered thereupon from such a public street, highway, park, o place. The person making the seizure, must keep the animal or animals seized, in his possession, until disposed of as prescribed in the following sections of this title.

See L. 1862, ch. 459, § 2, and L. 1867, ch. 814, § 2 (7 Edm. 185).

§ 3086. Officer or person seizing to present petition. An officer or other person, who seizes an animal or animals, as prescribed in either of the last two sections, must immediately file, with a justice of the peace of the town in which the seizure was made, a written petition, verified by his oath; setting forth the facts which bring the case within either of those sections: briefly describing the animal or animals seized; stating either the name of the owner, or that his name is not known to the petitioner, and cannot be ascertained by him with reasonable diligence; and praying for a final order, directing the sale of the animal or animals seized, and the application of the proceeds thereof, as prescribed in this title. Where the petition alleges. that any animal or animals seized, were then trespassing upon real property owned or occupied by the petitioner, it must state the amount of the damages, if any, which the petitioner has sustained thereby. In that case, the decision of the justice, or. where the issues are tried by a jury, the verdict must fix the amount of the damages.

See Id., § 3, and L. 1867, ch. 814, § 2 (7 Edm. 185).

3087. Precept thereupon.

Upon the presentation of the petition, the justice must issue a precept under his hand; directed to the owner, if his name is stated in the petition, or, if it is not so stated, directed generally to all persons having an interest in the animal or animals seized:

citing the substance of the petition; describing the animals seized, and requiring the person or persons, the precept is directed, to show cause before the justice, and place specified therein, not less than ten nor more nty days, after the issuing of the precept, why the the petition should not be granted.

Id.; how served.

ecept must be served upon the person, to whom it is y his name, within the same time, and in like manner nons is required to be served, as prescribed in section his act. Where it is directed generally to all persons, a interest in the animal or animals seized, it may be a constable of the town, or by an elector thereof, authorized so to do by a written indorsement upon the nder the hand of the justice, by posting a copy thereof t six public and conspicuous places in the town where e was made; one of which places must be the nearest hool house, or, if the seizure was made within an ed village, having schools in charge of a board of a building in which such a school is kept. Each copy o posted, within two days after the precept is issued. e precept is directed to a person by his name, and made by affidavit, to the satisfaction of the justice, nnot, with reasonable diligence, be personally served person, within the county, at least six days before a day thereof, the justice may, by a written order, t service thereof be made, by posting copies thereof, e days before the return day, as prescribed in this secich case, service thereof may be made accordingly.

Proof of service of precept.

lace where the precept is returnable, and at the expiratime specified in section 2893 of this act, the petitioner ss the precept is directed to a person by his name, and , furnish proof of the service of the precept, as prethe last section. If it was served by a constable, either or by posting, his written return upon the precept is proof of the facts relating to the service, as stated f it was served by a private person, proof of service de by affidavit.

Answer; trial.

er, or a person having an interest in any animal seized, r upon the return of the precept, and thereby make himy to the special proceeding. The person so appearing the return of the precept, file a written answer, subhim or his attorney, and verified by the oath of the scribing it, denying, absolutely or upon information and or more material allegations contained in the petition. must also set forth his interest in the animal or aniThe subsequent proceedings must be the same as in n a justice's court, wherein an issue of fact has been ept as otherwise specially prescribed in this title.

.

Decision in favor of petitioner; warrant to sell; thereof.

son appears and answers, or if the decision of the jusverdict of the jury, where the issues were tried by a

jury, is in favor of the petitioner, the justice must make a final order, directing the sale of the animal or animals seized, and the application of the proceeds thereof, as prescribed in this title Thereupon the justice must issue a warrant, under his hand directed generally to any constable of the county, commanding him to sell the animal or animals seized, at public auction, for the best price which he can obtain therefor; and to make retur thereof to the justice, at a time and place therein specified, not less than ten nor more than twenty days thereafter. The sale must be made upon the like notice, and in like manner, as a sal of property, by virtue of an execution issued by a justice of the peace; and the constable must make return, as required by the warrant, and must pay the proceeds of the sale to the justice, de ducting therefrom his fees, at the rate allowed by law for the collection of such an execution.

§ 3092. Application of proceeds of sale.

The justice must apply the proceeds of the sale as follows: 1. He must pay the costs of the petitioner, as taxed by the ju tice, at the same rates as the costs of an action brought before him, including the justice's fees in such an action; and also the fees for the service of the precept, either personally or by posting at the rate allowed by law for personal service of a summons a constable.

2. Out of the remainder of the proceeds, he may retain to his own use, a fee of one dollar, for each animal sold.

3. Out of the remainder of the proceeds, he must pay to the officer, or other person making the seizure, the following fees for the seizure of each animal seized and sold, to wit: one deaf for each horse, colt, ass, or mule; fifty cents for each bull, e cow, or calf; and twenty-five cents for each goat, sheep, or swi together with a reasonable compensation, fixed by him, for care and keeping of each animal, from the time of the seiz to the time of the sale; and, also, where any animal sold was seized, while trespassing upon real property owned or occup by the petitioner, the damages sustained by the petitioner in co sequence thereof, as ascertained by the decision of the justic or the verdict of the jury upon which the final order was ma 4. Out of the remainder of the proceeds, he must pay to t officer, to whom a fine or penalty is to be paid for the bene of the poor, as prescribed in section 2875 of this act, the follow penalties, to wit: five dollars for each horse, colt, ass, mule, ba ox, cow, calf, or swine, seized and sold; and one dollar for es sheep or goat, seized and sold; which penalties must be receive by the officer, for the benefit of the poor of his town or district 5. If any surplus remains, he must pay the same to the pers or persons entitled thereto, as prescribed in the following sectic of this title.

§ 3093. Disposition of surplus.

Any person may, within ten days after the return of the wa rant, file, with the justice, a written claim to the surplus of th proceeds of the sale, or to any part thereof. On the elevec: day after the return, or, if it is a Sunday or a public holida on the first day thereafter, which is neither Sunday nor a publ holiday, the justice must proceed to inquire into the claims * filed; and, for the purpose of determining them, he must her the allegations and proofs of each claimant; and he may iss subpoenas, as upon the trial of an action. He may, upon th