TITLE IX. Costs. SEC. 3074. When prevailing party to recover costs. What costs allowed. 3075- When neither party to recover costs. 3076. Amount of costs limited. 3077. Costs upon demurrer. 3078. Taxation of costs. 3079. Increased costs. 3080. Costs on judgment for one or more defendants. 3081. Costs wrongfully collected may be recovered back. § 3074. When prevailing party to recover costs. What costs allowed. Except as otherwise specially prescribed by law, a party who recovers judgment in an action in a justice's court, is entitled to costs; which must be included in the judgment. Costs consist of the fees, allowed by law, for services necessarily rendered in the action, at the request of the party entitled to costs, or paid by him, as prescribed by law; and of such other expenses, as a party is entitled to include in his costs, by express provision of law. The defendant in an action brought in a justice's court may require security for costs to be given, where the plaintiff is a foreign corporation. So far as practicable, the provisions of title three of chapter twenty-one of this act, shall apply to the proceedings for requiring such security, the requisites of the undertaking and the justification of sureties therein. From 2 R. S. 247, Part 3, ch. 2, tit. 4, part of § 126 (2 Edm. 264); ch. 775 § 3075. When neither party to recover costs. In either of the following cases, costs shall not be awarded to either party, but each party must pay his own costs: 1. Where the action is discontinued by the absence of the justice for more than one hour, after the summons is returnable, or after the time to which the trial has been adjourned. 2. Where the justice is disqualified, for a reason specified in section 46 of this act. 3. Where the action is discontinued, upon the ground that the defendant is an infant, for whom a guardian ad litem has not been appointed. 4. In an action to recover one or more chattels, where the plaintiff recovers a chattel, or part of a chattel, or the value thereof, and the defendant also recovers a chattel, or part of a chattel, which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is entitled to costs, where both parties recover, as specified in this subdivision. unless the chattel, for which the defendant recovers, has been replevied and delivered to the plaintiff. § 3076. Amount of costs limited. The sum to be awarded, as costs, to the prevailing party, except where it is otherwise specially prescribed by law, is limited as follows: 1. It cannot exceed fifteen dollars, besides the fees of witnesses, where upon the trial of an issue of fact or of law, either party recovers damages to the amount of fifty dollars or more, or one or more chattels, the value of which, as fixed, together with the damages if any, amounts to fifty dollars or more; or, where, if the defendant recovers judgment, the sum, for which the plaintiff demanded judgment, was fifty dollars or more, or the value of all the chattels, to recover which the action was brought, was stated in the complaint as fifty dollars or more. 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 879 OST N PR witness not residing in the county or in an adjoining county; and for each adjournment exceeding one, which was granted upon the application of the party against whom the judgment is rendered. From ch. 692 of 1866, § 2 (6 Edm. 804). Am'd by ch. 597 of 1895. § 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. § 3078. Taxation of costs. Where a justice renders a judgment, he must specify in his docketbook, 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 constable who has certified the amount of his fee, upon a paper filed with the justice, the party must show, by his oath, or that of his attorney, to the satisfaction of the justice, that the item 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 in interest, who make separate defenses by separate answers, if the plaintiff fails to recover judgment against all, the justice must award costs to those who have judgment in their favor. From 2 R. S. 616, Part 3, ch. 10, tit. 1, § 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 fees, and the same is collected; the person from whom it was collected may, notwithstanding the judgment, recover from the justice who has received it the amount thereof, with interest. From R. S. 266, Part 3, ch. 2, tit. 4, § 230 (2 Edm. 274). TITLE X. Action or special proceeding, relating to an animal straying upon the highway. SEC. 3082. Action against person suffering animals to stray. 3083. Penalties to be recovered. 3084. Certain officers to seize animals straying. 3085. When private person may seize such animals. 3086. Officer or person seizing to present petition. 3087. Precept thereupon. 3088. Id.; how served. 3089. Proof of service of precept. 3090. Answer; trial. 3091. Decision in favor of petitioner; warrant to sell; execution thereon. 3092. Application of proceeds of sale. 3093. Disposition of surplus. 3094. Id.; when no claim made within a year. 3095. Order upon claims for surplus; appeal therefrom. 3096. Proceedings upon decision in favor of person answering. 3097. Demand of possession before trial. Proceedings thereupon. 3098. Id.; when animal wilfully set at large by third person. 3099. Action by owner in such a case. 3100. Action by petitioner and by officer. 3101. Demand of possession after final order and before sale. 3102. Order upon demand of possession; appeal therefrom. 3103. Id.; stay of proceedings. 3104. Appeal from final order. 3105. Id.; by claimant; stay of proceedings and delivery of possession. 3106. Proceedings upon affirmance. 3107. Limitation of action for seizing animals. 3108. Certain actions cannot be maintained. 3109. Where several animals are trespassing, damages are entire. Proceedings, in such cases. 3110. Proceedings in other cases, where there are different owners. 3111. Surplus, where there are different owners. 3112. When one action, etc., supersedes any other. 3113. Rights of officer when private person fails to prosecute. § 3082. Action against person suffering animals to stray. Any person who suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep, or goats, to run at large, or to be herded or pastured, in a public street, highway, park, or place, elsewhere than in a city, incurs thereby the penalty or penalties specified in the next section; and any resident of the town, or 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, or the overseer or superintendent of the poor of the town or district, in which one or more of those animals are found so running at large, herded or pastured, may maintain an action against him, in a justice's court, held in that town or district, to recover the penalty or penalties so incurred. Where the action is brought by a private person, the justice must pay the proceeds of an execution, issued upon a judgment therein in favor of the plaintiff, after deducting the costs, to the officer, who might have brought the action as prescribed in this section, to be applied by him to the support of the poor within his town or district. From ch. 459 of 1862, § 1 (3 Edm. 547); ch. 776 of 1872, § 1 (9 Edm. 476); ch. 814 of 1867 (7 Edm. 185). § 3083. Penalties to be recovered. If the plaintiff recovers judgment, in an action brought as prescribed 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 calf, five dollars. 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 can render a judgment in an ordinary action. From Id. § 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 notified 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. From Id. § 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 then trespassing upon real property so owned or occupied, having entered thereupon from such a public street, highway, park, or 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. From 2 of ch. 459 of 1862, as amended by ch. 814 of 1867, § 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. From Id., § 3. § 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 etition, or if it is not so stated, directed generally to all persons having § 3088. Id.; how served. The precept must be served upon the person, to whom it is directed y his name, within the same time, and in like manner as a summons s required to be served, as prescribed in section 2910 of this act. Where it is directed generally to all persons, having an interest in the nimal 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 ndorsement upon the precept, under the hand of the justice, by postng a copy thereof in at least six public and conspicuous places in he town where the seizure was made; one of which places must be the nearest district school-house, 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 so 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 upon that person, within the county, at least six days before the return day thereof, the justice may, by 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. From Id. § 3089. Proof of service of precept. At the place where the precept is returnable, and at the expiration of the time specified in section 2893 of this act, 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 upon 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. From Id. § 3090. Answer; trial. The owner, or a person having an interest in any animal seized, may appear upon the return of the precept, and thereby make himself a party to the special proceeding. The person so appearing may, upon 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 upon information and belief, one or more material allegations contained in the petition. His answer 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 title. From Id. § 3091. 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 issues were tried by a jury, is in OST N |