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Squares o. Campbell.

On the return of the summons, the parties may appear and join issue, and have a trial before the justice, or with a jury, as in civil actions. If the issue is found against the complainant, the justice is required to render judgment against him for the costs of the other party. If no one appears, or the issue is found in favor of the complainant, the justice is required to issue a warrant for the sale of the animals. The sale is to be made by a constable, as on an execution, the money to be paid to the justice. He is then required to assess the damages, and pay the costs, damages, compensation for keeping, and a certain sum for seizure, to the captor. From this summary of the act it will be readily seen that it contains all the requirements of a regular judicial proceeding. It is, however, urged with much force, that service by posting as to a known owner of the animal seized, is not a sufficient service on which to predicate a due proceeding at law. With the propriety of the enactment, courts have nothing to do; that is for the legislature, in its wisdom and discretion to consider. I deem it well settled that the legislature has the power to allow such service. (18 N. Y. 214, 215.) Service by publication is allowed; service by posting on the door of a concealed defendant is allowed. · In this case, it makes one rule of service for all, both when

the owner is known and when he is unknown. If the owner was unknown, more could not reasonably be required; if known, it would be well calculated to give the person potice of the proceedings; so that the propriety of the manner of service cannot reasonably be questioned. The legislature is required to make general rules; it cannot make a rule for each particular case. It is, however, sufficient to say that the legislature deemed that mode of service sufficient.

That objection being removed, it is still urged that the allowances under the original act were held to be penal, in the case of Rockwell v. Nearing, in the Court of Appeals,

Squares o. Campbell.

and that the same are in the amended act, with the addition that by virtue of the proceedings the captor is allowed to recover the damages he sustained by the trespass; and that if, as to the recovery of the damages, the proceeding is remedial in its character, as to the other allowances it is penal, and therefore not within the power of the legislature. I understand the court, in that case, to have held those allowances to be penal, and that they were made the instrument of depriving the owner of his property, without due process of law, and to have held that the original act did not provide for a regular judicial proceeding. I have endeavored to show that the amended act provides for a judicial proceeding, in which the justice has jurisdiction of the parties and the subject matter. If I am right in that, the constitutional objection, held by the Court of Appeal, is removed. The legislature had the power to regulate the amount of the recovery in the judicial proceeding provided for. It had the power to allow the captor to recover double or treble damages. It had the power to allow him to recover, in addition to the damages upon his land, a fixed sum as an indemnity for his trouble in seizing the animals, and removing them to a place of safety, also for keeping them. That the legislature has done in this proceeding. These allowances, in this judicial proceeding, are within the power of the legislature. There is reason for allowing to the captor more than he would be allowed in an action at law. The act is intended to meet cases where animals are wandering from place to place, without a keeper, and trespassing upon every spot where they can enter. They are found in the grain field, in the meadow or the garden. They must be attended to immediately. In most of the cases, to notify the owner, if he is known, would be leaving the land owner's property to destruction. They must be removed at once; they must be driven somewhere. If the owner is unknowil, or lives at a distance, where can they be driven? To drive them on the public highway, to

59 401 49a 356

Squares v. Campbell.

wander va a neighbor's land, would be to cause them to commit new trespasses. The most proper thing that can be done, is to take the animals trespassing to some place of safety. The legislature has provided that the land owner may do so, and secures to him, by this proceeding, an indemnity.

It is further urged that a person blameless and entirely innocent of any wrong, is liable to have his animals seized, and be compelled to pay as required by said act, which would be unauthorized. The force of the point is very much weakened by the amendment of the act by section 5 of chapter 424 of the laws of 1867. However, if he is innocent of any wrong, either by himself or his animals, his animals cannot be legally seized, and he cannot be legally compelled to pay any sum. But every person is liable for the acts of his domestic animals. He is bound to keep them on his own land. This requirement, however, is subject to the rules and regulations in regard to line fences. If animals trespass, the owner is liable for the trespass. If they are in the custody of a bailee, the owner may still be sued for their trespasses. Whenever they are trespassing, they may be seized by virtue of this act. But when innocently on another's land, they cannot legally be seized. There is, therefore, nothing in this objection.

It is also urged that the act requires only the issue to be joined, and a trial to be had upon the right of seizure, leaving the amount of the captor's damage to be afterwards determined by the justice, taking that question away from the jury. It is, therefore, claimed that the act interferes with the right of trial by jury. I think that is the true construction of the act, but it is not for that reason unconstitutional. Due process of law does not necessarily import a trial by jury. (Wynehamer v. The People, 13 N. Y. 378, 425.) The second section of article 1 of the State constitution, provides that the trial by jury, in all cases in which it has heretofore been used, shall remain VOL. LX

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Squares v. Campbell.

inviolate forever. This act provides for a special proceeding, in wbich the main and vital issue is the right of seizure and sale. That is allowed to be tried before a jury or the justice, at the option of the parties. The other questions are to be disposed of by the justice, among which is the amount of the captor's damage. Those the justice is to assess, after he receives the money, and pay to the captor. Special proceedings of various characters existed, and were practiced, long before the adoption of the constitution. Proceedings, too, in which the amount of damages sustained in consequence of an interference with lands was involved, such as proceedings to ascertain the amount of damages sustained by a land owner, in having a public highway, plank-road, or railroad run through his lands. How these damages should be assessed has always been subject to legislative control. As to the damages to be recovered, the proceeding is indisputably remedial in its character, and comes under the same principles and practice, and is sustained by the same reason, as the proceeding to distrain animals damage feasant. In those proceedings, the damages were authorized to be assessed by the fence viewers, and such assessment has always been allowed, and sustained by our courts. There is no difference, in principle, between the two proceedings in this respect. The proceeding to distrain animals damage feasant, existed at common law, and was authorized by English statutes, and all of our own, from the earliest period of our State. The legislature, therefore, was fully justified in assuming that this mode of assessing damages in such remedial proceedings, had existed prior to the adoption of the constitution of our State, and therefore was not within the provisions of the constitution, giving the party an absolute right to a trial by jury. (Matter of Empire City Bank, 18 N. Y. 210.) There is no constitutional objection to the legislature's authorizing the main issue in this special proceeding to be tried by a jury, and the damages to be assessed by the

Squares v. Campbell.

justice. It is made a part of the proceeding of which the original complaint and summons give the justice jurisdiction. The act does not require any notice of the assessment to be given to the owner. The assessment being a part of the proceeding of which the justice had jurisdiction, the want of notice does not affect his jurisdiction of the matter, or the constitutionality of the act. It raight have been more wise, and better, if notice had been required when the owner is known ; but with that the courts have nothing to do. It was for legislative discretion.

It has also been urged before me, (and I am referred to a note of the reporter, to the case of Fox v. Dunckel,) that by this act, the animals are allowed to be seized without process, and before the commencement of the proceeding, and therefore the property is taken without due process of law. By reference to all the authorities it will be readily seen, that without due process of law, as used in the constitution, does not mean the want of process by which the property is taken, but the want of a judicial proceeding in which it is taken. This act provides for a judicial proceeding, and the captor seizes and retains the property as a part of the proceeding. He is allowed to do so because of the peculiar nature of the trespass, the immediate necessity of action, and of some disposition of the animals trespassing, and to secure to him the result of the proceedings. He is required to make immediate complaint, so that the proceeding may at once progress, and the property be not unnecessarily detained. This means that he shall proceed as soon as he reasonably can, under all the circumstances. This mode of seizure is similar in principle to allowing an attachment to issue at the commencement of an action, and the defendant's property thereby to be seized and retained until sold on an execution on the judgment obtained in the action, The mode of seizure, the circumstances rendering it necessary, by whom, and how it is to be made, and on what process, if

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