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. [Code, § 3086, without change.] § 25. Precept thereon.-On 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 any interest in the animal or animals seized; briefly reciting the substance of the petition; describing the animal or animals seized, and requiring the person or persons to whom the precept is directed to show cause before the justice at a time and place specified therein, not less than ten nor more than twenty days after the issuing of the precept, why the prayer of the petitioner should not be granted. [Code, § 3087, without change.] § 26. Precept; how served.-The precept must be served on the person to whom it is directed by his name, within the same time and in like manner as a summons is required to be served, as prescribed in section one hundred and five. Where it is directed generally to all persons having an interest in the animal or animals seized, it may be served by a constable of the town or by an elector thereof specially authorized so to do by a written indorsement on the precept, under the hand of the justice, by posting a copy thereof in at least six public and conspicuous places in the town where the seizure was made; one of which places must be the nearest district schoolhouse, or, if the seizure was made within an incorporated village having schools in charge of a board of education, a building in which such a school is kept. Each copy must be posted within two days after the precept is issued. Where the precept is directed to a person by his name, and proof is made by affidavit to the satisfaction of the justice that it cannot with reasonable diligence be personally served on that person, within the county, at least six days before the return day thereof, the justice may by a written order direct that service thereof be made by posting copies thereof at least five days before the return day, as prescribed in this section; in which case service thereof may be made accordingly. [Code, § 3088, without change.] § 27. Proof of service of precept.-At the place where the precept is returnable, and at the expiration of the time specified in section two hundred and eighty-five, the petitioner must, unless the precept is directed to a person by his name, and he appears, furnish proof of the service of the precept as prescribed in the last section. If it was served by a constable, either personally or by posting, his written return on the precept is sufficient proof of the facts relating to the service, as stated therein. If it was served by a private person, proof of service must be made by affidavit. [Code, § 3089, without change.] § 28. Answer; trial.-The owner, or a person having an interest in any animal seized, may appear on the return of the precept and thereby make himself a party to the special proceeding. The person so appearing may on the return of the precept file a written answer, subscribed by him or his attorney, and verified by the oath of the person subscribing it, denying, absolutely or on information and belief, one or more material allegations contained in the petition. His answers must also set forth his interest in the animal or animals seized. The subsequent proceedings must be the same as in an action in a justice's court, wherein an issue of fact has been joined, except as otherwise specially prescribed in this article. [Code, § 3090, without change.] § 29. Decision in favor of petitioner; warrant to sell; execution thereof. If no person appears and answers, or if the decision of the justice or the verdict of the jury where the issue 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 pre scribed in this article. 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 return 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 on the like notice, and in like manner, as a sale 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, deducting therefrom his fees, at the rate allowed by law for the collection of such an execution. [Code, § 3091, without change. § 30. 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 justice, at the same rates as the costs of an action brought be fore 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 by 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 the officer, or other person making the seizure, the following fees, for the seizure of each animal seized and sold, to wit: one dollar for each horse, colt, ass or mule; fifty cents for each bull, ox, cow or calf; twenty-five cents for each goat, sheep or swine; together with a reasonable compensation, fixed by him, for the care and keeping of each animal, from the time of the seizure to the time of the sale; and also, where any animal sold was seized, while trespassing on real property owned or occupied by the petitioner, the damages sustained by the petitioner in consequence thereof, as ascertained by the decision of the justice, or the verdict of the jury, on which the final order was made. 4. Out of the remainder of the proceeds he must pay to the officer to whom a fine or penalty for the benefit of the poor, as prescribed in section twenty-three, the following penalties, to wit: five dollars for each horse, colt, ass, mule, bull, ox, cow, calf or swine, seized and sold; and one dollar for each sheep or goat seized and sold; which penalties must be received 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 person or persons entitled thereto, as prescribed in the following sections of this article. [Code, § 3092, without change.] § 31. Disposition of surplus.-Any person may within ten days after the return of the warrant, file with the justice a written claim to the surplus of the proceeds of the sale, or to any part thereof. On the eleventh day after the return, or, if it is a Sunday or public holiday, on the first day thereafter, which is neither Sunday nor a public holiday, the justice must proceed to inquire into the claims so filed; and for the purpose of determining them he must hear the allegations and proof of each claimant; and he may issue subpoenas, as upon the trial of an action. He may on the application of any claimant, and for good cause shown, adjourn the hearing from time to time, but not more than thirty days in all. After hearing the allegations. and proofs of all the claimants, he must decide the claims, and enter an order accordingly. If no claim is filed, or if the right to the surplus money or any part thereof is not established to the satisfaction of the justice, as prescribed in this section, any person whose claim was not determined on the hearing may file a claim thereto at any time before the expiration of a year from the return of the warrant, and thereon the justice must proceed, as prescribed in this section, with respect to a claim filed within the ten days. [Code, § 3093, without change.] § 32. When no claim made within a year. If at the expiration of one year after the return of the warrant any portion of the surplus remains, a claim to which has not been established to the satisfaction of the justice, pursuant to the provisions of the last section, the justice must pay it for the benefit of the poor to the officer to whom a fine or penalty is to be paid for the benefit of the poor as prescribed in section 23, and thereon all persons are forever barred from any claim thereto. But if a claim, filed as prescribed in the last section, remains undetermined at the expiration of the year, the justice must determine it within ten days thereafter; and for that purpose he must retain the surplus in his hands until the determination. [Code, § 3094, without change.] § 33. Order on claims for surplus; appeal therefrom.-An appeal from an order determining a claim, as prescribed in the last two sections, may be taken to the county court, by a claimant, within ten days after the making of the order, as from a judg ment of a justice in an action to recover a sum equal to the claim; and the proceedings thereon are the same, except that an undertaking is not necessary for any purpose. On such an appeal each other claimant whose interest is affected by the order appealed from, must be made a respondent. If there is no such claimant the officer entitled to the surplus must be made respondent; but costs cannot be awarded against him unless he appears on the appeal, in which case the costs are in the discretion of the appellate court. Where an appeal, taken as prescribed in this section, is perfected, the county judge may in his discretion make an order extending the time within which payment of the surplus must be made, as prescribed in the last section, and staying payment accordingly. Unless such an order is made and a copy thereof is served on the justice, payment must be made as prescribed in the last section, notwithstanding the appeal; and on proof of the payment the appeal must be dismissed. Where an appeal is taken to the supreme court from the deter |