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Appellate court not to dismiss or quash for

want of form

only.

Of amend

ments.

What may be

set up in answer.

Appellate court

has power to

make or

return.

said officer shall forthwith cease all further proceedings by virtue of such writ, and if such writ shall not have been completely executed, the defendant shall remain in possession of the premises, until the appeal shall have been determined.

SECT. 20. In all cases of appeal under the provisions of this act, the appellate court shall not dismiss or quash the proceedings for want of form only, provided they have been conducted substantially, according to the provisions of this

act.

SECT. 21. Amendments may be allowed by the court at any time before final judgment, upon such terms as to the court shall appear just, in the same cases and manner, and to the same extent as in civil actions.

SECT. 22. All matters in excuse, jurisdiction, or avoidance of the allegations in the complaint, shall be set up in answer.

SECT. 23. The appellate court shall have power to comcompel justice to pel the justice by attachment, to make or amend any return which shall be withheld, or insufficiently or improperly made. SECT. 24. The following, or equivalent forms, shall be used in proceedings under this chapter.

Form of summons.

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To the sheriff or any constable of the county aforesaid.
Whereas

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of

hath exhibited unto a justice of the

peace, in and for said county aforesaid, a complaint against

for that the said

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of on the day of at (here insert the substance of the complaint with legal certainty); therefore, in the name of the United States, you are hereby commanded to summons the said in the said county, to appear before me at

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if to be found

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on the

day

noon, there and then

to make answer to, and defend against the complaint aforesaid, and further to be dealt with according to law, and make due return to me of this summons, with your doings thereon.

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FORM OF WRIT OF RESTITUTION.

TERRITORY OF DAKOTA,

county,

of

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SS.

To the sheriff or any constable of the county aforesaid.
Whereas
at the court of inquiry of an un-
lawful detainer, or an unlawful forcible entry and unlawful
detainer, held at, in the county aforesaid, on the
day of

one thousand eight hundred and —, before
justice of the peace in and for the county aforesaid, by
the consideration of the court recorded, recovered judgment
against, of, to have restitution of (here describe
the premises as in the complaint); therefore, in the name of
the United States, you are hereby commanded, that taking
with you the force of the county, if necessary, you cause the
said to be immediately removed from the aforesaid
premises, and the said to have peaceable restitution of
the same; you are also hereby commanded, that of the
goods and chattels of the said, within said county, you
cause to be levied, and the same being disposed of according
to law, to be paid to the said the sum of
costs taxed against said for the said
aforesaid, together with twenty-five cents for this writ, and
thereof, together with this writ, make due return within thirty
days from the date hereof, according to law.

being the

at the court

Form of writ of restitution.

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ant against, respondent, the jury finds the facts alleged in the said complaint are true; that the said is guilty thereof, and the said ought to have restitution of the premises therein designated without delay (or in case the jury do not find the allegation of complaint proved), the jury find that the facts alleged in the same complaint are not proved, and that the said is not guilty thereof.

Take effect,

when.

SECT. 25. This act shall take effect from and after its pas

sage and approval.

Approved May 15, 1862.

ESTRAYS.

W. JAYNE, Governor.

Freeholder may take what ani

CHAPTER 35.

AN ACT TO PROVIDE FOR AN ESTRAY LAW.

Be it enacted by the Legislative Assembly of the Territory of
Dakota:

SECTION 1. That any freeholder may take up any stray mals, and when. horse, mule, neat-cattle, sheep, or swine, found within his inclosed premises, at any season of the year. Any estray found around the premises of any freeholder, between the first of November and the first day of April, may be taken up by such freeholder; and any horse or mule, with any portion of harness attached to them, and any oxen with yoke on, that are believed to have strayed away from their owner, may be taken up by any person at any time.

Duty of taker up to give notice.

Three weeks' notice.

Owner may

reclaim estray, how.

SECT. 2. It shall be the duty of any person taking up an estray, to send a description of the same to the county clerk, within two weeks after taking it up; and the county clerk shall immediately record the same in a book kept for that purpose. The taker up of any estray shall, within two weeks thereafter, procure the publication of the description of such animal in any one newspaper published within the county.

SECT. 3. The proprietor of such newspaper shall publish said description at least three consecutive weeks, and shall receive a reasonable compensation therefor.

SECT. 4. The owner of an estray may, at any time previous to its sale, reclaim the same, on proving property, by oath

or otherwise, and paying for the advertisement and a reasonable compensation for the necessary expense incurred by the person taking it up.

If not reclaimed within

SECT. 5. When an estray has not been reclaimed within nine months from the time it was advertised, if it be a sheep, nine months. swine, or calf, under the age of one year, it shall be the property of the person taking it up. When the animal is a horse, mule, bull, steer, or cow, the person taking it up shall notify a justice of the peace residing within the county, who shall appoint two persons to appraise the animal at what they consider its cash value; a day of sale shall be fixed, and notice of such sale shall be advertised for ten successive weeks, in any newspaper published in the county. If there be no newspaper in the county, then the notice of sale shall be posted in at least three conspicuous places within the county, for at least three weeks before the sale. And on the day appointed, the animals shall be sold to the highest and best bidder.

Sale at county seat.

Must bring two

thirds appraised

not.

SECT. 6. The place of sale shall be at the county seat. SECT. 7. When any estray is sold, it must bring at least two thirds of the appraised value. In case it does not, the value. If it does animal shall be re-appraised, and again offered for sale one week from the day appointed for the first sale, without advertisement.

pay expenses.

SECT. 8. If, upon examination of said sale, the said ani- If sale will not mal will not bring enough to defray the entire expense, the taker up of said animal may, on payment of the same, be the owner thereof.

SECT. 9. After all expenses have been paid, the balance, if Balance reany, shall be paid into the school fund.

maining to go to school fund.

ers shall con

SECT. 10. The appraisers of estrays shall estimate the What appraisvalue of the labor, trouble, and expense of the person in tak- sider. ing up and keeping an estray, taking into consideration the services rendered by the animals.

SECT. 11. The appraisers of estrays shall receive fifty Compensation cents each for each appraisement; but when more than one animal is taken up at the same time, by one man, they shall

all be appraised at once, and the appraisers shall be entitled

to compensation for but one appraisement. The justice of Of justice. the peace shall receive for his services fifty cents.

SECT. 12. Should any animal, taken up as an estray, die If animal dies.

Take effect,

when.

while in possession of the taker up, he shall not be liable for the loss, unless its death was the result of mistreatment or wilful neglect.

SECT. 13. This act shall take effect from the date of its passage.

Approved, April 26, 1862.

W. JAYNE, Governor.

Stallion or ass over two years, not allowed to run at large.

to fine.

CHAPTER 36.

AN ACT CONC&RNING HORSES AND OTHER ANIMALS,

Be it enacted by the Legislative Assembly of the Territory of
Dakota:

SECTION 1. That no stallion or ass, over the age of two years, shall be allowed to run at large; and the owners of Owners liable such animal found running at large shall be liable to a fine of five dollars for the first offence, and ten dollars for any subsequent offence, to be recovered by an action of debt before any teines appropri- justice of the peace in the county. Such fine or fines, when collected by any justice of the peace, shall be paid into the county treasury of the county where the same shall have been collected, and the same shall be appropriated for the benefit of common schools.

ated to common

schools.

When animal may be castrated.

Proviso.

Owners responsible for further damage done.

SECT. 2. Any person finding such animal running at large, may take up and secure the same, and shall give public notice of such taking up; and if the animal, so taken up, be not claimed within five days, and the fines and costs of taking up and keeping paid, may castrate the same: Provided, The usual precaution be used, that the life of the animal be not endangered thereby more than is usual, and shall be entitled to recover from the owner of any such animal for castrating the same, the sum of five dollars in addition to a reasonable compensation for taking up and keeping, and shall have a lien upon said animal for the payment of the same.

SECT. 3. The owner or owners of any such stallion or ass, who shall suffer or permit the same to run at large, contrary to the provisions of this act, shall be further liable for and pay

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