release. 1. The person suffering damages by reason of the trespass of any livestock may take up the offending livestock. The person suffering damages shall notify the owner, or the person in possession of the livestock at the time of the trespass, of the seizure of the livestock without unnecessary delay, if the owner or person in possession is known to the person suffering damages and is a resident of, and present within, the county in which the trespass occurred. The person suffering damages may retain the livestock in that person's custody until: a. The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid; or b. Good and sufficient security for the payment of the damages and costs is given, provided the security is approved by a district judge serving the county in which the livestock is taken up. 2. If the owner of the offending livestock elects to give security, the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval. The notice must be given at least one day before the date set for the submission of the security to the judge. The cost of serving notices required under this section may be taxed as costs in the action. 3. Where applicable, the provisions of section 36 -11-07 may be raised as an affirmative defense in any proceedings under this section, and the owner or person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock. If the court finds that the livestock has been wrongfully distrained, the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock, together with the costs of the action and reasonable attorney's fees.
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