§ 3099. Action by owner in such a case. — The owner of an animal, seized in consequence of a wilful act specified in the last section, may recover, in an action against the person who committed it, all damages sus. tained by him, in consequence thereof, including the sum paid in order to recover possession of the animal, as prescribed in the last section; and, in addition thereto, the sum of twenty dollars for each animal seized. Id., remainder of 5. § 3100. Action by petitioner and by officer.—Where the possession of an animal has been delivered, as prescribed in the last section but one, an action may also be maintained, by the petitioner in the special proceeding before the justice, against the person who committed the wilful act, to recover, in addition to all other damages sustained by the plaintiff in conse quence of the wilful act, all sums, to which the plaintiff would have been entitled out of the proceeds of the sale, as prescribed in section 3092 of this act, other than the compensation paid for the care and keeping of the animal. In the like case, if the petitioner is a private person, the officer, to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of this act, may maintain an action against the person, who committed the wilful act, to recover the penalties to which the plaintiff would have been entitled, out of the proceeds of the sale, as prescribed in that subdivision. Neither of the actions specified in this or the last section is affected by the pendency of, or the recovery of judgment in, either of the others. New. 3101. Demand of possession after final order and before sale.—A person, entitled to demand the possession of an animal, as prescribed in section 3097 of this act, who did not appear upon the return of the precept, or upon the trial, may file, with the justice, a written demand of the possession, at any time after the final order, and not less than three days before the time appointed for the sale; and, thereupon, he is entitled to the posses sion, upon complying with the following terms: 1. He must furnish, by affidavit or other competent evidence, a sufficient excuse, to the satisfaction of the justice, for his failure to appear. 2. He must, in all respects, comply with the provisions of section 3097 of this act; except that it is necessary for him to pay only one-half of the justice's fee, as prescribed in subdivision second of that section; and onehalf of the fees payable to the petitioner, for the seizure of each animal, as prescribed in subdivision third of section 3092 of this act. See L. 1867, ch. 814, part of 4. 3102. Order upon demand of possession; appeal therefrom. Where a demand for the return of the possession of an animal is filed, as prescribed in either of the last five sections, the justice must, at the request of either party thereto, make, and enter in his minutes, an order determining the same. An appeal from such an order may be taken to the county court, by the person making the demand, or by either party to the special proceeding, at any time before the final order in the special proceeding is made; and each person or party so entitled to appeal, must be made a respondent upon an appeal taken by one of the others. The appeal must be taken in like manner, as an appeal from a judgment of the justice in an action to recover a chattel; and the proceedings thereupon are the same, except as otherwise prescribed in the next section. New. 3103. Id.; stay of proceedings.-An appeal from an order, specified in the last section, is not effectual for any purpose, unless the appellant procures from the county judge, an order directing a stay of the proceedings upon the petition, and a stay of the execution of the order appealed from, and files it with the justice, within the time allowed for the appeal. The order may be granted or refused, in the discretion of the county judge, or granted upon such terms, as to security or otherwise, as he thinks proper; and it may be vacated or modified, either absolutely, or unless further security is given, in his dis cretion. New. § 3104. Appeal from final order. Within ten days after a final order upon a petition is made, as prescribed in this title, an appeal therefrom may be taken by the petitioner, or by the person answering, in like manner as an appeal from a judgment of the justice in an action to recover a sum of money, equal to the value of the animal or animals, and the proceedings thereupon are the same, except as otherwise prescribed in the next section. See L. 1867, ch. 814, part of 6. 3105. Id.; by claimant; stay of proceedings and delivery of possession. An appeal from a final order, taken as prescribed in the last section, by the person answering, is not effectual for any purpose, unless the appellant files, with the notice of appeal, an order of the county judge, or, if he is absent from the county, of a justice of the supreme court, reciting that the appeal has been perfected, and that security has been given thereupon, as prescribed in this section, and directing a stay of proceedings upon the final order appealed from, and that the possession of the animal or animals seized be delivered to the appellant. The order can be made only where an undertaking is given by the appellant, as required for the purpose of perfecting an appeal from a judgment, and staying the execution thereof; and also an undertaking, in the same or another instrument, to the effect that, if the final order appealed from is affirmed, or if the appeal is dismissed, the appellant will pay all sums which the justice awards against him, upon the hearing after the determination of the appeal, as prescribed in the next section, not exceeding a sum specified therein; which must be, at least, twice the amount of all the sums, which might be deducted from the proceeds of the sale, as prescribed in section 3092 of this act. The sum must be fixed, and the undertaking must be approved, by the judge who grants the order. Upon filing the order with the justice, the appellant is forth with entitled to the possession of the animal or animals seized. See note to last section. $3106. Proceedings upon affirmance. If the final order appealed from is affirmed, upon an appeal taken by the person answering, the county court must appoint a time and place, at which the justice must fix the sums 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 had been returned, and the proceeds thereof paid to him by the constable, as prescribed in section 3092 of this act. The undertaking upon the appeal inures 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. See note to 3104, ante. 3107. Limitation of action for seizing animals.— Where an animal is seized, upon the ground that it was running at large, or was being herded or pastured, or was trespassing, contrary to the provisions of this title; and the oflicer or other person making the seizure, immediately files his petition, and diligently prosecutes the same, as prescribed in this title; 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. Section 7, act of 1867. § 3108. 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 title, may maintain an action to recover the animal, 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 title. New. § 3109. 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 upon 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 there for 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. If 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 3097 or 3101 of this act, 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 3098 of this act, 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. New. Van Steenburgh v. Tobias 17 Wend, 562; Auchmuty e. Ham, I Den. 495; Partenheimer v. Van Order, 20 Barb. 479. 3110. Proceedings in other cases, where there are different owners.-Where the petitioner does not allege. that the animals seized, were trespassing upon 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 title, 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 |