
    (26 Misc. Rep. 355.)
    BOYCE v. PERRY.
    (Franklin County Court.
    February, 1899.)
    1. Justices’ Courts—Pleading—Demurrer to Answer.
    Code Civ. Proc. § 2935, subd. 4, providing for “plaintiff’s demurrer to one or more counterclaims stated in the answer,” in justice court, is not applicable when the answer contains a simple defense.
    3. Animals—Estrays—Statutes.
    1 Bev. St. p. 351, relating to estrays, applies more particularly to animals Straying on the highway, than to those trespassing on private property.
    8. Same—Re-enactments.
    Laws, 1890, c. 569, which contains the substance of all earlier statutes concerning estrays doing damage, renders them inoperative; section 242 declaring that the provisions of the chapter, so far as they are substantially- the same as those laws existing on February 28, 1891, shall be construed as a continuation of such laws, modified or amended, according to the language employed in the chapter, and not as new enactments.
    Appeal from justice court.
    Replevin by Abel R. Boyce against Zeno Perry. From judgments in favor of plaintiff on demurrer and on the merits, defendant appeals.
    Reversed.
    John I. Gilbert, for appellant.
    M. T. Scanlon, for respondent.
   BEMAN, J.

The animals in question were arrested or distrained by defendant while trespassing and doing damage upon his premises. The animals came upon the premises of defendant from the lands owned or occupied by the plaintiff, and it is not proven in the case that the route of access to defendant's premises was through any part of a division fence which the defendant was bound to maintain, or that they came upon his lands through any fault or neglect upon his part. Finding these animals doing damage on his lands, defendant availed himself of chapter 569 of the Laws of 1890, for the purpose of detaining the property until he should receive compensation from the owner to satisfy his demand for damages sustained by reason of the trespass. Instead of rendering defendant-satisfaction for his loss, plaintiff brings this action in replevin to recover the possession of the property, and for damages for the detention thereof. Upon the trial before the justice, defendant relied upon the matter set forth in his answer as a good and substantial defense to plaintiff’s alleged cause of action; and, had he (defendant) been permitted to establish as facts the matter set forth in his answer, judgment only could have been rendered against the plaintiff, and for defendant, with costs.

The plaintiff mistook the practice when he filed a demurrer to defendant’s answer, which contained matter constituting a defense, as his proceedings for distraining the animals weré legal, and in accordance with chapter 569, Laws 1890, which statute is applicable to cases of this character. The only pleadings in a justice's court are: (1) The plaintiff’s complaint; (2) the defendant’s answer; (3) the defendant’s demurrer to the complaint, etc.; (4) the plaintiff’s demurrer to one or more counterclaims stated in the answer. The only authority for a demurrer to defendant’s answer in this action is contained in subdivision 4, § 2935, Code Civ. Proc. dearly, there is nothing in defendant’s answer to which that subdivision can be made applicable, as defendant’s answer contains a simple defense based upon the provisions of the Laws of 1890, above cited. It follows, then, that the demurrer should have been overruled or dismissed; and the justice erred in sustaining the same, thereby actually deny-' ing defendant the benefit of his defense in the action. In sustaining the demurrer, the justice practically anticipated the whole case, and defeated the defendant of his just and legal rights.

The plaintiff’s (respondent’s) contention on this appeal is that defendant, after distraining the animals found upon his premises, should have proceeded under the provisions of 1 Rev. St. p. 351, and not under the act of 1890, above cited. In this, plaintiff is mistaken, and unsupported by authorities, as the provisions of the Revised Statutes cited more particularly apply to cattle straying upon the public highway than to cattle trespassing upon private property. The act of 1867, c.. 814, § 2, gave the right to a person finding cattle trespassing upon his premises to seize and take such animals into his custody, and hold them until disposed of according to law. Chapter 569, Laws 1890, now called the “Town Law,” contains, in modified language, the substance of all previous acts of the legislature concerning estrays and cattle doing damage, etc., and supersedes all former laws in that regard, if really it does not practically repeal them. The town law certainly renders all earlier statutes inoperative and nugatory. Where there are no express provisions in an act repealing a former law, and the provisions of the two laws are in conflict, the later act must prevail; but it need not be said that the provisions" of section 120 of the town law (Act 1890) are in conflict with any former statute, as it appears that it was the intention of the legislature to enlarge and modify the provisions of still earlier enae+ments concerning estrays and cattle doing damage, so as to bring them into harmony, by the enactment of the provisions of chapter 569, Laws 1890. It seems to me apparent that such was the real purpose, as section 242 of that act provides that:

“The provisions of this chapter, so far as they are substantially the same as those laws existing on February 28, 1891, shall be construed as a continuation of such laws, modified or amended, according to the language employed in this .chapter, and not as new enactments.” 1 Rev. St. (Banks & Bros.’ 9th Ed.) p. 785.

From the foregoing, I can only arrive at the conclusion that defendant’s proceedings were valid, in distraining the animals, and that he had a good and substantial defense to plaintiff’s action; that the judgment sustaining plaintiff’s demurrer to defendant’s answer should be reversed, and the final judgment in the action, awarding possession of the property to the plaintiff, with damages for the detention, with costs of the action, should be reversed. But, inasmuch as the appeal from both judgments is incorporated in one notice of appeal, costs are allowed for one appeal only; and it is so ordered.

Judgment reversed, with costs for one appeal only.  