When on agent

Return.

served at the time at which the next regular mail would reach the place of residence of the party on whom it is to be served. SEC. 6. If a party reside out of the Territory and has an agent or attorney within the Territory, service may be made on the latter.

SEC. 7.

The return of [or] proof of service must show particularly the manner in which it was made.

Definition.

Action by whom.

Remedy.

Forfeiture.

Who liable.

Treble damages.

Exception.

Remainder.

CHAPTER XXII.

NUISANCE, WASTE, AND TRESPASS.

SEC. 1. Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an action.

SEC. 2. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance.

SEC. 3. Where a proper case is made, the nuisance may be enjoined or abated and damages recovered therefor.

SEC. 4. If a guardian, tenant for life or years, joint tenant, or tenant in common, of real proper[ty] commit waste thereon, he is liable to pay three times the damages which have resulted from such waste to the person who is entitled to sue therefor.

SEC. 5. Judgment of forfeiture and conviction may be rendered against the defendant whenever the amount of damages so recovered is more than two-thirds the value of the interest such defendant has in the property wasted and when the action is brought by the person entitled to the reversion.

SEC. 6. Any person whose duty is to prevent waste and who has not used reasonable care and diligence to prevent it,is deemed to have committed it.

SEC. 7. For wilful trespass injuring any timber, tree, or shrub on the land of another, or in the street or highway in front of another's cultivated ground, yard, or town lot, or on the public grounds of any town, or any land held by this Territory for any purpose whatever, the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property aforesaid.

SEC. 8. Nothing herein contained authorizes the recovery of more than the just value of timber taken from uncultivated wood land for the repair of a public highway or bridge upon the land in its immediate neighborhood,

SEC. 9. The owner of an estate in remainder or reversion may maintain either of the aforesaid actions for injuries done to the inheritance notwithstanding any intervening estate for life or years.

SEC. 10. An heir, whether a minor or of full age, may maintain these actions for injuries done in the time of his ancestors as well as in his own time, unless barred by the statute of limitations.

SEC. 11. Whether lands or tenements are sold by virtue of an execution, the purchaser at such sale may maintain his action against any person for either of the causes above mentioned occurring or existing after his purchase.

Heirs.

Purchasers.

SEC. 12. This provision is not intended to prevent the person who occupies the lands in the mean time from using them in the Qualification. ordinary course of husbandry, or from using timber for the purpose of making suitable repairs thereon.

Settlers on

SEC. 13. But if for this purpose he employ timber vastly superior to that required for the occasion, he will be deemed to public lands. have committed waste and will be liable accordingly.

SEC. 14. Any person settled upon and occupying any portion of the public lands held by the Territory is not liable as a trespasser for improving it, or cultivating it in the ordinary course of husbandry, nor for taking or using timber or other material necessary and proper to enable him to do so, provided the timber and other materials be taken from the land properly constituting a part of the "claim" or tract of land so settled and occupied by him.

CHAPTER XXIII.

WRITS.

Power of courts

SEC. 1. The several courts established in the Territory shall have power to issue all writs and processes necessary for the exercise and enforcement of their respective jurisdiction.

SEC. 2. All the process issued by the Clerk of the Su- How issued. preme, District, or Probate Courts, shall bear date on the day

it is issued, and be signed by the clerk who issued the same,

and be under the seal of the court.

SEC. 2. The style of all process shall be "the Territory of Style. Nebraska," and all prosecutions shall be conducted in the name and by the authority thereof.

CHAPTER XXIV.

FORMS IN A JUSTICE'S COURT.

The following forms shall be used by Justices as nearly as Forms. may be:

Territoyr of Nebraska,

Summons.

SS

To any Constable of the County

manded to summon

: You are hereby comto appear before me, at my - o'clock

office, on the. -day of- ————— 185—, at in the- -noon, to answer to the petition of

Summons.

obtained judgment against

as appears of record, for dollars, together with dollars and cents as costs: you are therefore commanded to make the same, together with all accruing costs, by levy and sale of the goods ofand make return thereof

within thirty days from date.

A. D. 185-.

Justice of the Peace.

Writ of attachment.

Territory of Nebraska,

SS

Attachment.

County of

To any Constable of the County,
Whereas -

has filed with me the affidavit and bond necessary to entitle him to a writ of attachment against

said.

for the sum of

- from the said

upon commanded to attach the goods,
monies and effects of said

dollars, claimed to be due

: you are therechattels, rights, credits,

in your county, to be and make legal returns

kept and disposed of according to law,
thereof; and you are also to notify the defendant thereof and
summon him to appear before me at my office on the-
day of- —, A. D. 185—, to answer the petition of the plain-
tiff, in which is claimed (here insert the cause of action, in sub-
stance.)

A. D. 185-.

Justice of the Peace.

APPEALS FROM. THE DILTRICT TO THE SURPEME COURT.

89

Writ for the wrongful taking or detention of personal

Territory of Nebraska, SS

County of

property.

To any Constable of the County,

You are hereby commanded to take the following goods and writ of return. chattels, viz: alleged to be in the possession of and return the same forthwith to

,

and further that you summon the said to appear before me at my office on the

-day of

A. D. 185-, at- o'clock in the noon, to answer the
petition of said
wherein he claims said property and

dollars in damages for the detention of the same.

APPEALS FROM THE. DISTRICT TO THE SUPREME COURT.

Within hat

SEC. 1. Appeals hereafter to be tried must be taken within one month from the time judgment is rendered by service of time. notice in writing on the advance [adverse] party, his agent or attorney, and also on the clerk of the court in which the proceedings were had, stating the appeal from the same or some specific part thereof.

SEC. 2, Upon receiving the notice and the payment of the legal fees therefore by the appellant, the clerk shall forthwith transmit to the Supreme Court a transcript of the record in the cause, or so much thereof as the appellant directs, to which shall be appended the notice of the appeal and the written directions of the appellant applying therefor.

SEC. 3. All proper entries made by the clerk and all papers pertaining to the cause and filed therein (except subpoenas, depositions, and other papers that are used as mere evidence,) are to be deemed parts of the record. But the transcript of motions, affidavits and other papers, when they relate to collateral matters should not be certified unless by the direction of the appellant. If so certified when not material to the determination of the appeal, the court may direct the person blamable therewith to pay the costs thereof.

Transcript.

What constitutes the record.

SEC. 4. If the other co-parties refuse to join, they are pre- Part appealing. cluded from any benefits arising from the appeal, unless from the necessity of the case; but should they fail to appear and refuse to join in the appeal, they shall be liable for their share of the costs already made, only.

SEC. 5. The death of any or all the parties shall not abate Death no abate. the suit, but the names of the proper persons being substituted

ment.

Stay of execution.

Execution re

called.

Property deli

vered up.

Judgment supreme court.

Damages.

of

Remanding

cause.

Writ of restitution.

Purchasers.

Damages.

the cause may proceed; but to promote the ends of justice, the court may grant a continuance in such cases.

SEC. 6. An appeal from the judgment of the court shall be a stay of execution, except to any portion of the judgment not appealed from.

SEC. 7. If execution has been issued before such appeal is taken the clerk shall recall it.

SEC. 8. Property levied upon and not sold at the time of such recall shall be returned forthwith by the sheriff to the judgment debtor.

SEC. 9. The court may reverse or affirm the judgment or render such judgment as the District Court should have done. SEC. 10. If the judgment be affirmed, the court shall award the appellee sush damages as they may deem just, not exceeding twelve per cent. per annum.

SEC. 11. If the court affirm the judgment, it may remand the cause to the District Court to be carried into effect, or it may issue the necessary process for that purpose to the sheriff of the proper county.

SEC. 12, If by the determination of the canse the appellant is entitled to a restoration of money or property, that was taken from him under the judgment below, then either court may award a writ of restoration or execution for the purpose of restoring the property or the value thereof.

SEC. 13. Property acquired by a bona fide purchaser under a judgment reversed shall not be affected by such reversal.

SEC. 14. Where judgment, the court shall on motion render judgment against both appellant and his sureties for the amount of his judgment, damages, and costs, in case such damages can be ascertained by the court without trial.

When allowed.

And how.

Part appealing.

CHAPTER XXVI.

APPEALS.

SEC. 1. Any person feeling himself aggrieved by the decrees or decisions of Judges of Probate, or Justices of the Peace, may take an appeal to the District Court.

SEC. 2. Appeals are taken by the service of notice in writing on the adverse party, his agent or attorney, and also on the clerk of the court or justice of the peace before whom the proceedings was had stating the appeal from the judgment of the court, or some specific part thereof.

SEC. 3. Any one or more of several co-parties may take an appeal. In that case, notice must be served upon the other coparties, and the proof of such service filed with the clerk of the court or justice.

SEC. 4. If the co-parties refuse to join in the appeal, they are precluded from taking an appeal and shall derive no benefit from the proceedings herein provided for.