§ 44. Proceedings on affirmance.-If the final order appealed from is affirmed on an appeal taken by the person answering, the county court must appoint a time and place at which the justice must fix the sum payable by the appellant, pursuant to his undertaking. The justice may adjourn the hearing to another place, and to another time not exceeding three days after the time so appointed. The justice must fix the sums so payable, as if a warrant for the sale of the animals seized has been returned, and the proceeds thereof paid to him by the constable, as prescribed in section four hundred and sixty. The undertaking on the appeal enures to the benefit of each officer to whom any sum is payable as prescribed in that section; and with respect to any of those sums the respondent is a trustee for the officer entitled thereto. [Code, § 3106, without change.] § 45. Limitation of action for seizing animals.-Where an animal is seized on the ground that it was running at large, or was being herded or pastured; or was trespassing, contrary to the provisions of this article; and the officer or other person making the seizure immediately files his petition and diligently prosecutes the same as prescribed in this article; an action to recover the animal so seized, or to recover damages for the seizure, or for any act subsequent thereto, must be commenced within one year after the cause of action accrues. [Code, 3107, without change.] § 46. Certain actions cannot be maintained.-A person to whom the precept was directed by his name, and who was personally served therewith, or a person who has appeared and answered in the special proceeding, or demanded the return of any animal seized, cannot maintain an action against the officer or other person seizing an animal, or a person acting by his command or in his aid, in a case specified in the last section. But, except as specified in this section, the owner of an animal seized or detained, under color of any provision of this article, may maintain an action to recover the animl, or its value, or damages for the seizure or detention, or for any unlawful act subsequent thereto, if in fact the animal was not at the time of the seizure running at large, or being herded or pastured, or trespassing, as the case may be, as specified in the foregoing provisions of this article. [Code, 3108, without change.] If 47. Where several animals are trespassing damages are entire; proceedings in such cases.-For the purpose of determining the damages sustained by the petitioner where two or more animals are found simultaneously trespassing on real property owned or occupied by him, all the damage done by all the animals seized, is to be regarded as done by them jointly; and the petitioner's remedy therefor is entire, and must be enforced against all the animals, and the proceeds of the sale thereof. Where different persons, who are known, own different animals seized, the precept must be directed to all of them by their names. one or more of the owners are known, and the others are unknown, and cannot be ascertained with reasonable diligence, the precept must be directed to each known owner, by his name, and also generally to all persons having an interest in those animals, the owners of which are unknown. In a case specified in this section, a demand of the possession of an animal seized cannot be made, as prescribed in section four hundred and sixty-five or four hundred and sixty-nine, unless it is made with respect to all the animals seized, and by persons entitled to the possession of all of them. But a separate demand may be made as prescribed in section four hundred and sixty-six by each owner of one or more animals seized; in which case, if possession is delivered to him as prescribed in that section, the petitioner's remedy for his damages is the same with respect to the animal or animals of which possession is not so delivered, and against the proceeds of the sale thereof, as if those whereof possession is so delivered had not been trespassing upon the property. [Code, 3109, without change.] § 48. Proceedings in other cases, where there are different owners. Where the petitioner does not allege that the animals seized were trespassing on real property owned or occupied by him, and different persons own different animals seized, a separate special proceeding may be instituted, as prescribed in this article, against each owner, or against any two or more owners, with respect to the animals owned by him or them. Or the proceedings may be taken against all the owners jointly; in which case each person to whom the precept is directed by his name, and each person having an interest in an animal seized, has the same right to demand the possession of the animal owned by him, and the same right to answer separately, as if the special proceeding was against him separately; and the final order may be in favor of one or more of the persons so answering, with respect to the animal or animals owned by him or them, and for his or their costs; and against the remainder of the persons answering, or to whom the precept was directed, or for the sale of the remainder of the animals, in like manner, as if the former person had not answered, or had not been named in the precept. But the person first making a demand of the possession of any animal seized must pay all the costs to the time of the demand; and a person subsequently making a demand is excused from the payment of any costs except those which have accrued since the former demand. [Code. § 3110. without change.] § 49. Surplus where there are different owners.-Where proceedings are taken jointly against different persons who own different animals seized, as prescribed in either of the last two sections, the surplus remaining in the justice's hands must be distributed between them in proportion to the value of the animals owned by each, to be determined by the justice. Any owner may claim separately his proportion of the surplus; and sections four hundred and sixty-one and four hundred and sixtytwo apply to a claim made, and to the disposition of the surplus arising as prescribed in this section. [Code, § 3111, without change.] § 50. When one action supersedes any other. Where two or more persons, or an officer and a private person, are authorized by this article to bring an action, or to seize an animal, and to take the proceedings prescribed in this article for the disposition thereof, the commencement of an action or the seizure of the animal by either of them supersedes the right of any of the others to bring such an action, or to make such a seizure, with respect to the animal seized, or in question in the action. But the justice may in his discretion allow an officer or other person who is interested in the recovery, or in the application of the proceeds of the sale, to appear in the action or special proceeding for the purpose of protecting his interest, and to take such part of the proceedings therein as the judge thinks proper. [Code, § 3112, without change.] § 51. Rights of officer when private person fails to prosecute. -Where a seizure is made by a private person as prescribed in this article and the possession of an animal seized is abandoned by him without filing a petition; or where an action brought by a private person as prescribed in this article is settled or discontinued by the plaintiff; the officer to whom the penalty is payable, as prescribed in section 451, or in subdivision four of section. 460 may, unless he has assented to the abandonment, settlement, or discontinuance, maintain an action against the owner of the animal in question to recover the penalty so payable to him; and on proof of the facts which would have entitled the plaintiff in the former action, or the petitioner in the special proceeding, to recover, he is entitled to judgment accordingly. [Code, § 3113, without change.] § 52. Person having a special property deemed owner.-When a person is at the time of the seizure entitled to the possession of an animal as against the general owner thereof, by virtue of a special property therein, he is deemed for all the purposes of this article the owner thereof. [Code, § 3114, without change.] § 53. Agent may act for his principal.-The duly authorized agent of the owner or person entitled to the possession of an animal as specified in the last section may in his own name, answer, make any demand, or take any other proceeding which the owner or person so entitled may take as prescribed in this article. [Code, § 3115, without change.] ARTICLE III. LAWS REPEALED; WHEN TO TAKE EFFECT. Section 55. Laws repealed. 56. When to take effect. Section 55. Laws repealed. The laws and parts of laws enumerated in the schedule hereto annexed are repealed. Such repeal shall not revive any law repealed by a law hereby repealed, but shall include all laws amendatory of a law hereby repealed. § 56. When to take effect. This chapter shall take effect October first, nineteen hundred. SCHEDULE OF LAWS REPEALED. R. S., pt. III, tit. XI, ch. 8, §§ 1-25.... Distraining cattle. 1867.. 1890.. 375..... 4..... Feeding impounding animals. CODE OF CIVIL PROCEDURE. Sections 3082 to 3115, inc.. Animals straying in highways. |