
    COUNTY COURT.
    Adam C. Millard agt. Almira Severance.
    
      Action, or special proceeding relating to animal straying upon highway— Oode of Oivil Procedure, sections 3096, 3108—Proceedings upon decision in favor of person answering—When action cannot he maintained hy person to whom precept is directed, and who is personally served and appears and answers in the special proceeding.
    
    In proceedings under chapter 19, title 10 of the Code of Civil Proceedure, relating to an animal straying upon the highway, where the person to whom the precept was directed by name is personally served or appears and answers, the theory of the statute is to give him damages, where he succeeds upon the trial of the issue only when the seizure is found , to be malicious and without probable cause, and only then in the special proceeding where the issue is decided in his favor. All the issues are to be determined in one special proceeding, and not a part tried in a special proceeding and a part in an action.
    Where, as in this case, the precept was directed to the plaintiff in this action by his name and he was personally served, and he appeared and answered, unless the justice found that the seizure was malicious and without probable cause, he was not entitled to recover any damages under the statute, as section 3108 expressly excludes him from maintaining such an action.
    
      Allegany county,
    March, 1885.
    This action was commenced in justices’ court to recover of the defendant damages upon a horse, sustained by the plaintiff while the horse was in the possession of the defendant. In July, 1884, this defendant, under chapter 19, title 10 of the Oode of Oivil Procedure, made a petition which was duly filed with the proper officer that the horse in question was running at large in the public highway. Thereupon the justice before whom the matter was laid issued a precept directed to, and which was duly served upon the plaintiff herein requiring him to show cause, &c. This plaintiff appeared and filed a written verified answer denying the allegations of the petition, and an issue was there joined which was thereafter tried by the justice, and he decided the issue in favor of the person there answering, and awarded the return of the animal to this plaintiff, with three dollars and five cents costs. Shortly thereafter this plaintiff commenced an action in justices’ court, while the horse was yet in the possession of the defendant, for its conversion and for the conversion of the harness upon the horse at the time it was taken up by the defendant; issue was joined in that action, and a few days before the adjourned day the defendant, by her agent, paid the plaintiff in this and that action a certain sum of money, and that action was then discontinued. The defendant caused the horse and harness to be delivered to the plaintiff, and he accepted them without objection. About a month after that time the plaintiff commenced this action. The defendant appeared herein and answered, and plead a former suit in bar, and an accord and satisfaction arising from the foregoing facts. The justice rendered judgment herein in favor of the plaintiff for fifteen dollars damages and costs. Upon this appeal the defendant, appellant, claims this judgment should be reversed on two grounds:
    
      First. That the final order in the “stray” proceeding is a bar; and,
    
      Second. That the settlement of the former action is a bar.
    These are the only points raised in the case and the only ones needing examination.
    
      G. W. Tibbetts, for appellant.
    
      E. E. da G. W. Harding, for respondent.
   C. A. Farnum, Co. J.

Section 3096 of the Code provides that “if the decision of the justice, or the verdict of the jury, where the issues are tried by a 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 In's 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.”

Section 3108, expressly provides: “ 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.” It then provides that any other person being the owner of an animal so seized may maintain an action to recover the animal or its value, or damages for the seizure or detention, &e., if, in fact, the animal was not running at large at the time of the seizure.

Where the person to whom the precept was directed by name, is personally served or appears and answers, the theory of the statute is to give him damages where he succeeds upon the trial of the issue only when the seizure is found to be malicious, and without probable cause, and only then in the special proceeding where the issue is decided in his favor. All the issues are to be determined in one special proceeding, and not a part tried in a special proceeding and a part in an action.

Where the precept is not directed to a person by name and he is not personally served, &c., in a proper case he may recover his damages by action. Such is not this case. Here the precept was directed to the plaintiff in this action by his name; he was personally served; he appeared and answered, and unless the justice found that the seizure was malicious, and without prohable causé, he was not entitled to recover any damages under the statute. Section 3108 expressly excludes him from maintaining such an action. This court is not called upon to pass its opinion upon the wisdom of the statute in question. Its duty is simply to construe the sections cited. Having ascertained the intention of the legislature, it must direct that intention to be carried out. Beading sections 3096 and 3108 of the Code, they are not found to be in conflict in the slightest degree. They provide who may and who may not have an action for damages where animals have been illegally seized under the “stray” act. An examination, shows that the plaintiff is not one entitled to maintain such an action, and that the justice ought to have rendered a decision and judgment in favor of the defendant.

The respondent contends that the statute is unconstitutional, and that he cannot be deprived of his right to recover his damages sustained by reason of the unlawful act of the defendant without having his “ day in court.” Bearing in mind the well settled rule that courts will not declare a statute to be unconstitutional unless it clearly appears to be so it would not seem becoming in this court to hold with him upon this point. There is also a grave question whether the justice ought not to have held upon the uncontradicted evidence, that there had been an accord and satisfaction and settlement of this cause of action before this action was commenced.

This judgment should be reversed upon the point discussed and an order may be entered accordingly.  