mination of the county court, the county judge, or a judge of the supreme court may make a like order, and with like effect.

[Code, § 3095,

without change.]

§ 34. Proceedings on decision in favor of person answering. -If the decision of the justice, or the verdict of the jury is in favor of the person answering, it must fix the value of each animal seized. If the justice or the jury find that the seizure was malicious, and without probable cause, the decision or verdict must assess the damages sustained by the person answering, by means of the seizure and detention. The justice must thereupon make a final order, awarding to the person so answering, the return of the animal or animals so seized, or the value thereof if a return cannot be had; together with his costs, at the rates allowed by law in an action brought before him to recover a chattel; and also twice the sum assessed as his damages, if any. Thereupon a warrant must be issued by the justice to a constable, to the same effect as an execution issued in an action to recover a chattel, on a judgment in favor of the defendant where the chattel has not been delivered to him; and each provisions of this chapter relating to a judgment and an execution in such a case, applies to a final order made, and a warrant issued thereupon, as prescribed in this section.

[Code, § 3096,

without change.].

§ 35. Demand of possession before trial; proceedings thereon. -At any time after the precept is issued, and before the commencement of the trial, the owner of any animal seized may file with the justice a written demand of the possession thereof. Thereupon he is entitled to the possession, on complying with the following terms:

1. He must pay to the justice, for the use of the petitioner, the costs of the proceedings, to the time of filing the demand, as prescribed in subdivision one of section four hundred and sixty, and

also the sums payable on account of each animal whereof possession is so demanded as prescribed in subdivision three of the same section; which sums must be fixed by the justice, after hearing the allegations and proofs of the parties.

2. He must also pay to the justice a fee of one dollar for each animal whereof possession is so demanded.

3. If the petitioner is an officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section twenty-three, the claimant must also pay to the justice for the petitioner's use, the sum specified therein on account of each animal whereof possession is so demanded.

4. The claimant must also prove to the satisfaction of the justice, by affidavit or other competent evidence, that he is the owner of each animal whereof possession is so demanded. Each person who has appeared must have notice of, and may oppose the claim.

[Code, § 3097, without change.]

§ 36. When animal wilfully set at large by third person.— But where in a case specified in the last section the person filing a demand presents therewith to the justice sufficient proof, by affidavit or otherwise, that the running at large, herding, pastur ing, or trespassing, by reason whereof the animal or animals, of which he demands possession, were seized, was caused by the wilful act, intended to effect that object, of a person other than the owner; and also makes the proof specified in subdivision four of that section; he is entitled to possession, pursuant to his demand, on paying to the petitioner, or to the justice for his use, a reasonable sum, to be fixed by the justice after hearing the allegations and proofs of the parties, as compensation for the care and keeping of the animal or animals, whereof possession is so demanded, and without paying any other sum specified in the last section.

[Code, § 3098 without change.]

§ 37. 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 sustained by him, in consequence thereof, including the sum paid in order to recover possession of the animal prescribed in the last section; and in addition thereto the sum of twenty dollars for each animal seized.

[Code, § 3099, without change.]

§ 38. 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 consequence 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. four hundred and sixty, 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 twentythree, 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 section. 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.

[Code, § 3100, without change.]

§ 39. Demand of possession after final order and before sale.A person entitled to demand the possession of an animal as prescribed in section four hundred and sixty-five, who did not appear on the return of the precept, or on 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 possessiou, on 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 four hundred and sixty-five; except that it is necessary for him to pay only one-half of the justice's fee, as prescribed in subdivision two of that section; and one-half of the fees payable to the petitioner, for the seizure of each animal, as prescribed in subdivision three of section four hundred and sixty.

[Code, § 1301, without change.]

§ 40. Order on 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 thereon are the same, except as otherwise prescribed in the next section.

[Code, § 3102, without change.]

§ 41. 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 on 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 on 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 discretion.

[Code, § 3103, without change.]

§ 42. Appeal from final order. Within ten days after a final order upon a petition is made, as prescribed in this article, 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. [Code, § 3104, without change.]

§ 43. 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, a justice of the supreme court, reciting that the appeal has been perfected, and that security has been given thereon, as prescribed in this section, and directing a stay of proceedings on 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, on the hearing, after the determination of the ap peal, 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 four hundred and sixty. The sum must be fixed, and the undertaking must be approved, by the judge who grants the order. On filing the order with the justice, the appellant is forthwith entitled to the possession of the animal or animals seized.

[Code, § 3105, without change.]