Daily life in Carthage at the time of Hannibal

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1

>

SECOND EDITION.

THE

EVisED Codes

OF THE

■" — u

TERRITORY OF DAKOTA.

-^ •

A. D. 1877.

WMPKISISG THE CODES AND GENERAL STATUTES PASSED AT THE TWELFTH SESSION

or THE LEGISLATIVE ASSEMBLY, AND ALL OTHER GENERAL LAWS

REMAINING IN FORCE. TO WHICH IS PREFIXED THE

ORGANIC LAW AND THE CONSTITUTION

OF THE UNITED STATES.

PUBLISHED A.KD BOITKD BT

GEO. H. HAND,

8BCBKTABT or DAKOTA.

BY AUTHORITY OF THE LEGISLATIVE ASSEMBLY.

BOWEN & KINGSBURY, PUBLIC PRINTERS.

1880.

f

L15478

PE6 1 4 1939

• •

• • •

• 4

■j

r

v

PREFACE.

i The Territory of Dakota is one of a few remnants of that vast public
domain, the title of which was acqui/ed by the United States through the
celebrated Louisiana Purchase. Though nol a part of the territory north-
west of the Ohio which was organized under the provisions of the ordi-

I Dance of 1787, it has been at times under a common organization with a
part of that territory, and the benign provisions of that historic enact-
ment have practically been applied to its government and law.

Out of this domain the great western and northwestern states of Mis-
souri, Kansas, Nebraska, Iowa and Minnesota have been organized, be-
sides other more remote states and several divisions which, like Dakota,
remain territories. During their existence as territories, the boundaries
and extent of these divisions have been subject to frequent and marked
changes, and new names have appeared and old ones have disappeared
or become permanent in states formed out of a part, rendering, until
recently, the political geography of the territories more like the figures
in the kaleidoscope. On the maps of forty years ago, this was noted as
the Mandan Region or the Mandari" Territory. It became once a part of
the Michigan Territory, and afterwards the Territory of Wisconsin in-
cluded all of that present state, of Iowa and Minnesota, and of Dakota
as far west as the Missouri river. After the organization of Wisconsin
and Iowa as states, Minnesota while a territory, embraced besides its
present area, all that portion of Dakota east of the Missouri river; and
the boundaries of Nebraska Territory from 1854 to 1861 included that por-
tion lying west of the Missouri river.

The admission of Minnesota as a state, in May, 1858, left all the
country west of its diminished boundaries and of Northwest Iowa along
the Big Sioux river to the Missouri river on the west, not included in any
organization, and occupied by the Indians. This part was with propriety
and by common consent designated by the name of Dakota, from the
great associated tribe of Indians, known in their own language and
among themselves as Dakotas, and recognizing the French word "Sioux"
only when learned by long communication with the whites. The first ces-
sion of lands within *l)akota was made in 1858 by treaty with a band of
the Dakota tribe called in their language, lancton or Yankton, and with

i

1

IV Preface.

the Poncas, a band of another nation, tribe and dialect, who claimed
part of it. This purchase opened 25,000 square miles lying in soutl
eastern Dakota, and this has gradually been extended by successr
treaties with the Sioux or Dakotas, until nearly all that east of the Mil
souri river has been ceded, and at the last session of Congress^ in Feb]
ary, 1877, a treaty was ratified and approved by the necessary legislatioi
which ceded and opened the Black Hills in western Dakota, already cele-1
brated for its wealth in the precious metals and in timber. ^

White settlement was begun in 1859, but by reason of the critical and
disturbed condition of national aflFairs the act of congress organizing
. the territory of Dakota was not passed until March 2, 1861. President
Lincoln appointed the necessary executive and judicial officers at an early
day thereafter, and they came promptly to their posts, so that after June,
1861, Dakota had a government. The original boundaries as declared by
this act included, besides' the present area of the territory, all that region
now embraced in Idaho, Montana and Wyoming, each of which has been
created by successive acts, leaving the western boundary of Dakota the
27th meridian of longitude west from Washington. Strong efforts are
making to secure the erection of a new territory out of the northern half
of Dakota, while at the same time an organized movement is growing for
the organization and admission of Dakota, the southern half of the pres-
ent territory, into the Union as a state. The growth of the territory in
wealth and population was practically defeated for several years by the
Indian troubles in 1862-3, the effects of which long deterred active develop-
ment. The southern half, including the Black Hills, has now a population
of 80,000 or more, and. with vast areas of the richest farming -and best
grazing lands, and mines of wonderful richness, a most delightful and
...^^alubrious climate, an enterprising, intelligent and law abiding popula-
tion, with institutions and laws inferior to none, promises a rapid growth
and development henceforth.

The first general election was held in September, 1861, and the legisla-
tive assembly convened in its first session in March, 1862. It continued
for sixty days and passed a carefully prepared and good body of laws,
Since that eleven other sessions have been held, and at each various acts
were passed, amended, repealed or re-enacted, and throughout the course
of this legislation each of the codes now revised and printed has had a
more or less distinctive history, and are briefly referred to in their order.

The Political Code embraces the results of a large number of miscella-
neous acts passed at the various sessions, but now brought into an orderly
arrangement and amended into a harmonious and practical system. It
comprises those matters which relate to the government of the territory,
under the organic laws by congress, the powers and duties of its officers
and subordinate municipal corporations, and the nature and management
of its institutions.

The Civil Code embraces those divisions of the law which relate to

' persons and their relations, to property of every kind, and to obligations

of every nature in relation to persons and property, including the entire

1

Preface.

ubject of private corporations; and as a code of written law, had its
ri^in in the uncompleted labors of a commission appointed by the state
I New York. This part of their work was not perfected or enacted in

at state, but first took the form of a statute in an act passed at the fifth
ession of the legislative assembly of Dakota, and approved January
2th, 1866, thus having been in force here, though not in a complete form,
over eleven years. It was then taken by a commission in California in
1872, and revised and amended, and was enacted as the law of that state
in 1873, and has now been again revised, enlarged and re-enacted by
Dakota as it appears herein.

The Code of Civil Procedure embraces, together with the Probate Code
and the Justices' Code, which are properly parts of it, the jurisdiction of
the courts of justice and the judicial and other officers thereof, and all
the actions, special proceedings, writs and process, and the methodsiand
means generally, which may be employed for the enforcement of rights
and the remedies for their violation. A code of a different origin was en-
acted by the first session in 1862, and was repealed by implication in 1868,
and expressly in 1873. The present code originated also in New York,
where it was enacted into law. In an abridged form it was enacted in
Dakota in 1868, and took effect on the first day of June in that year. It
was also amended and adopted by the state of California in 1873. It has
been here completely revised, amended, enlarged and re-enacted in its
present comprehensive form.

The Probate Code has received special care, and embraces the latest and
best results of legislation and judicial interpretation.

The Justices' Code was also entirely revised, and a really new code was
prepared, more brief, exact and simple than the repealed code.

The Penal Code consists of a systematic classification of public off'enses,
according to the latest and best examples of legislation, with such pro-
visions as are required by our peculiar circumstances, and it fully provides
for the prevention of crimes and the punishment of offenders.

The Code of Criminal Procedure had its origin in New York, and it was
revised and adopted in Cali/ornia. It was enacted in substantially its
present form, but abridged on certain subjects, by the eleventh session of
the legislative assembly of Dakota, and approved January 15, 1875. An
amendatory act was passed by the late session of the assembly supply-
ing the parts before omitted, and the whole code is thus revised according
to the latest and best examples of legislation in the most enlightened
states. A few unrepealed and miscellaneous enactments are insertedln the
volume in their appropriate connections, and the general repealing act is
printed at the close, thus bringing into this volume all the public and gen-
eral laws and statutes now in force in the territory.

By an act of the eleventh session of the legislative assembly, entitled
"An act to provide for revising and codifying the laws of Dakota Terri-
tory," approved January 14, 1875, the governor was empowered, and it
was made his duty, to select and appoint a commission of "three com-
petent and worthy persons, learned in the law, to revise and codify the

i

VI Pbbface.

laws of this territory;" and for that purpose the act gave the commission
" authority to add to or take from the laws now (then) in force, whatever
may be necessary to make a perfect and complete code of laws for this
tierritory." The commission was further authorized to employ a secretary
to assist them. In pursuance of this law, His Excellency John L. Pen-
nington, governor of the territory, commissioned the following gentlemen,
viz: The Honorable P. C. Shannon, chief justice of the supreme court of
the territory; The Honorable Granville G. Bknnett, associate justice of
the supreme court, and the Honorable Bartlett Tripp,

This commission organized in January, 1876, by the election of Hon.
P. C. Shannon, as chairman, and the unanimous choice of Gen. Wm. H, H.
Beadle, as secretary. Besides the great study each one had previously
given to the whole subject, or various parts of it, the separate or joint
labors of these commissioners continued from time to time throughout
the year 1876, and during the session of the legislative assembly, begin-
ning January 9th, and closing February 17th, 1877, and until the last
hour thereof.

Besides his labors a? secretary of the commission, Gen. W. H. H.
Beadle was also a member of the house of representatives, and therein
served as chairman of the judiciary committee, which had original charge
of all the several bills comprising the codes.

The Revised Codes, as now enacted and printed, save a very few and
unimportant blemishes, are believed to embrace the best results of legis-
lation in this country, and also to express the weight of the latest and
most enlightened judicial learning and judgment. In them the territory,
or the future state, has an invaluable public heritage which should be
changed only with intelligent conservatism and the general integrity of
which should be preserved with conscientious fidelity.

G. H. H.

THE ORGANIC LAW.

The following includes all those sections of Title XXIII, Revised Statutes
Df the United States, upon the Territories, which refer to Dakota:

Sec. 1900. All that part of the territory of the United States included
wthin the following limits, namely: Commencing at a point in the main
channel of the Red River of the North, where the forty-ninth degree of
north latitude crosses the same; thence up the main channel of the same,
and along the boundary of the state of Minnesota to Big Stone Lake;
thence along the boundary line of the state of Minnesota to the Iowa
line; thence along the boundary line of the state of Iowa to the point of
intersection between the Big Sioux and Missouri rivers; thence up the
Missouri river, and along the boundary line of the state of Nebraska to
the mouth of the Niobrara or Running Water river; thence following up
the same, in the middle of the main channel thereof, to the mouth of the
Keha Paha, or Turtle Hill River, thence up that river to the forty-third
parallel of north latitude; thence due west to the twenty-seventh meridian
of loDgitude west from Washington ; thence due north on that meridian
to the forty-ninth degree of north latitude; thence east along the forty-
ninth degree of north latitude to the place of beginning, is organized into
a temporary government by the name of the Territory of Dakota.

Sec. 1839. Nothing in this title shall be construed to impair the rights
of person or property pertaining to the Indians in any territory, so long
as such rights remain unextinguished by treaty between the United States
and such Indians, or to include any territory which, by treaty with any
Indian tribe, is not, without the consent of such tribe, embraced within
the territorial limits or jurisdiction of any state or territory; but all such
territory shall be excepted out of the boundaries and constitute no part
of any territory now or hereafter organized until such tribe signifies its
assent to the president to be embraced within a particular Territory.

Sec. 1840. Nor shall anything in this title be construed to affect the
authority of the United States to make any regulations respecting the In-
^ans of any territory, their lands, property or rights, by treaty, law, or
otherwise, in the same manner as might be made if no temporary govern-
^«nt existed, or is hereafter established in any such territory.

VIII The Organic Law.

Seo. 1841. The executive power of each territory shall be vested in a
governor, who shall hold his office for four years, and until his successor
is appointed and qualified, unless sooner removed by the president. He
shall reside in the territory for which he is appointed, and shall be com-
mander in chief of the militia thereof. He may grant pardons and re-
prieves, and remit fines and forfeitures for offenses against the laws of the
territory for which he is appointed, and respites for offenses against the
laws of the United States, till the decision of the president can be made
known thereon. He shall commission all officers who are appointed under
the laws of such territory, and shall take care that the laws thereof be
faithfully executed.

Sec. 1842. Every bill which has passed the legislative assembly of any
territory shall, before it becomes a law, be presented to the governor. If
he approve, he shall sign it, but if not, he shall return it, with his objec-
tions, to that house in which it originated, and that house shall enter the
objections at large on its journal, and proceed to reconsider it If, after
such reconsideration, two-thirds of that house agree to pass the bill, it
shall be sent, together with the objections, to the other house, by which it
shall likewise be reconsidered; and, if approved by two-thirds of that
house, it shall become a law. But in all such cases the votes of both
houses shall be determined by yeas and nays, and the names of the per-
sons voting for or against the bill shall be entered upon the journal of
each house. If any bill is not returned by the governor within three days,
Sundays excluded, after it has been presented to him, the same shall be a
law, in like manner as if he had signed it, unless the legislative assembly,
by adjournment sine die, prevent its return, in which case it shall not be

a law.

Seo. 1843. There shall be appointed a secretary for each territory, who
shall reside within the territory for which he is appointed, and shall hold
. his office for four years, and until his successor is appointed and quali-
fied, unless sooner removed by the president. In case of the death, re-
moval, resignation, or absence of the governor from the territory, the sec-
retary shall execute all the powers and perform all the duties of governor
during such vacancy or absence, or until another governor is appointed
and qualified.

Sec. 1844. The secretary shall record and preserve all the laws and pro-
ceedings of the legislative assembly, and all the acts and proceedings of
the governor in the executive department; he shall transmit one copy of
the laws and journals of the legislative assembly, within thirty days af-
ter the end of each session thereof, to the president, and two copies of the
laws, within like time, to the president of the senate, and to the speaker
of the house of representatives, for the use of congress. He shall trans-
mit one copy of the executive proceedings and official correspondence
semi-annually, on the first day of January and July in each year, to the
president. He shall prepare the acts passed by the legislative assembly
for publication, and furnish a copy thereof to the public printer of the
territory, within ten days after the passage of each act.

The Obganic Law. ix

Sec, 1845. From and after the first day of July, eighteen hundred and
seveuty-three, the annual salaries of the governors of the several territo-
ries shall be three thousand five hundred dollars, and the salaries of the
secretaries shall be two thousand five hundred dollars each. OL. \^ ^* A^AS

Sec. 1846. The legislative power in each territory shall be vested in the
governor and a legislative assembly. The legislative assembly shall con-
sist of a council and house of representatives. The members of both
branches of the legislative assembly shall have the qualifications of voters
as herein prescribed. They shall be chosen for the term of two years, and
the sessions of the respective legislative assemblies shall be biennial.
Each legislative assembly shall fix by law the day of the commencement
of its regular sessions. The members of the council and house of repre-
sentatives shall reside in the district or county for which they are respec-
tively elected.

Sec. 1922. The council of Dakota shall consist of nine members, which
may be increased to thirteen, and the house of representatives of thirteen
members, which may be increased to twenty -six.

Sec. 1847. Previous to the first election for members of the legislative
assembly of a territory in which congress may hereafter provide a tempo-
rary government, the governor shall cause a census of the inhabitants and
qualified voters of the several counties and districts of the territory to be
taken by such persons and in such mode as he may designate and ap-
point, and the persons so appointed shall receive a reasonable compensa-
tion for their service??. And the first election shall be held at such time
and places, and be Conducted in such manner, both as to the persons who
superintend guch election and the returns thereof, as the governor may
direct, and he shall, at the same time, declare the number of members of
the council and house of representatives to which each of the counties and
districts is entitled under the act providing such temporary government
for the particular territory. The persons having the highest number of
legal votes in each of the districts for members of the council shall be de-
clared by the governor to be duly elected to the council, and the persons
having the highest number of legal votes for the house of representatives
shall be declared by the governor to be duly elected members of that
house, but in case two or more persons voted for have an equal number
of votes, and in case a vacancy otherwise occurs in either branch of the
legislative assembly the governor shall order a new election, and the per-
sons thus elected to the legislative assembly shall meet at such place and
on such day as the governor appoints.

Sec 1848. After such first election, however, the time, place and man-
ner of holding elections by the people in any newly created territory, as
well as of holding all such elections in territories now organized, shall be
prescribed by the laws of each territory.

Sec. 1849. The apportionment of representation which the governor is
authorized to make by section 1847, in the case of a territory hereafter
erected by congress, shall be as nearly equal as practicable among the
several districts and counties for such first election of the council and

The Organic Law.

house of representatives, giving to each section of the territory repre-
sentation in the ratio of its population, except Indians not taxed, and
thereafter in such new territoty, as well as in all territories now organized,
the legislative assemblies respectively may re-adjust and apportion the
representation to the two houses thereof, amongthe several counties and
districts, in such manner, from time to time, as mey deem just and proper,
but the members of either house, as authorized by law, shall not be in-
creased.

Sec. 1851. The legislative power of every territory shall extend to all
rightful subjects of legislation not inconsistent with the constitution and
laws of the United States. But no law shall be passed interfering with
the primary disposal of the soil; no tax shall be imposed upon the prop-
erty of the United States,* nor shall the lands or other property of non-
residents be taxed higher than the lands or other property of residents.

Sec. 1925, In addition to the restrictions upon the legislative power of
the territories, contained in the preceding chapter, section eighteen hun-
dred and fifty-one, the legislative assemblies of Colorado, Dakota and
Wyoming shall not pass any law impairing the rights of private prop-
erty, nor make any discrimination in taxing different kinds of property;
but all property, subject to taxation, shall be taxed in proportion to its
value.

5ec. 1862. The sessions of the legislative assemblies of the several ter-
ritories of the United States shall be limited to forty days duration.

Sec. 1853. The members of each branch of the several territorial legis-
latures shall receive a compensation of six dollars per day during the
sessions herein provided for, and they shall receive such mileage as now
provided by law: Provided^ That the president of the council and the
speaker of the house of representatives shall each receive a compensation
of ten dollars per day.

Sec. 1942. The members of the legislative assemblies of New Mexico,
Utah, Washington, Colorado, Dakota, Arizona and Wyoming Territories
shall each receive three dollars for every twenty miles' travel in going to
and returning from the sessions of their respective bodies, estimated
according to the nearest usually traveled route.

Sec. 1854. No member of the legislative assembly of any territory now
organized shall hold or be appointed to any office which has been created,
or the salary or emoluments of which have been increased while he was
a member, during the term for which he was elected, and for one year
after the expiration of such term; but this restriction shall not be appli-
cable to members of the first legislative assembly in any territory hereafter
organized; and no person holding a commission or appointment under
the United States, except postmasters, shall be a member of the legislative
assembly, or shall hold any office under the government of any territory.
The exception of postmasters shall not apply in the territory of Wash-
ington.

Sec. 1855. No law of any territorial legislature shall be made or en-
forced by which the governor or secretary of a territory, or the members
or officers of any territorial legislature are paid any compensation other

Thb Organic Law. xi

than that provided by the laws of the United States.

Seo. 1856. Justices of the peace and all general officers of the militia
in the several territories, shall be elected by the people in such manner as
the respective legislatures may provide by law.

Sec. 1857. All township, district and county officers, except justices of
the peace and general officers of the militia, shall be appointed or elected
in such manner as may be provided by the governor and legislative as-
sembly of each territory; and all other officers not herein otherwise pro-
vided for, the governor shall nominate, and by and with the advice and
consent of the legislative council of each territory, shall appoint; but, in
the first instance, where a new territory is hereafter created by congress,
the governor alone may appoint all the officers referred to in this and the
preceding section, and assign them to their respective townships, districts,
and counties, and the officers so appointed shall hold their offices until
the end of the first session of the legislative assembly.

Sec 1858. In any of the territories, whenever a vacancy happens from
resignation or death, during the recess of the legislative council, in any
oflSce which, under the organic act of any territory, is to be tilled by ap-
pointment of the governor, Ijy and with the advice and consent of the
council, the governor shall fill such vacancy by granting a commission,
which shall expire at the end of the next session of the legislative council.

Sec. 1859. Every male citizen above the age of twenty-one, including
persons who have legally declared their intention to become citizens, in
any territory hereafter organized, and who are actual residents of such
territory at the time of the organization thereof, shall be entitled to vote
at the first election in such territory, and to hold any office therein; sub-
ject, nevertheless, to the limitations specified in the next section.

Sec. 1860. At all subsequent elections, however, in any territory here-
after organized by congress, as well as at all elections in territories
already organized, the qualifications of voters and of holding office shall
be such as may be prescribed by the legislative assembly of each terri-
tory; subject, nevertheless, to the following restrictions on the power of
the legislative assembly, namely:

First. The right of suffrage and of holding office shall be exercised
only by citizen&of the United States above the age of twenty- one years,
and by those above that age who have declared on oath, before a compe-
tent court of record, their intention to become such, and have taken an
oath to support the constitution and government of the United States.

Second. There shall be no denial of the elective franchise or of holding
oflSce to a citizen on account of race, color or previous condition of ser-
vitude.

Third. No officer, soldier, seaman, mariner or other person in the army
or navy, or attached to troops in the service of the United States, shall be
allowed to vote in any territory, by reason of being on service therein,
unless such territory is, and has been for the period of six months, his
permanent domicile.

Fourth. No person belonging to the army or navy shall be elected to,
or hold any civil office or appointment in any territory.

XII The Organic Law.

[J^rom CAapier d2Q — Stcond Session^ 4lWi Congress — Affi'oved y««^ 19,1878.]

That from and after the adjournment of the next session of the several
Territorial Legislatures the council of each of the Territories of the United
States shall not exceed twelve members and the House of Representatives
of each shall not exceed twenty-four members, and the members of each
branch of the said several legislatures shall receive a compensation of
four dollars per day each during the sessions provided by law, and shall
receive such mileage as the law provides; and the President of the Council
and the Speaker of the House of Representatives shall each receive six
dollars per day for the same time. And the several Legislatures at their
next sessions are directed to divide their respective Territories into as
• many council and representative districts as they desire, which districts
shall be as nearly equal as practicable taking into consideration popula-
tion, except " Indians not taxed "; Promded^ the number of council dis-
tricts shall not exceed twelve, and the representative districts shall not
exceed twenty-four in any one of said Territories, and all parts of sec-
tions eighteen hundred and forty-seven, eighteen hundred and forty-nine,
eighteen hundred and fifty-three, and nineteen hundred and twenty-two
of the Revised Statutes of the United States in conflict with the provisions
herein are repealed.

That the subordinate officers of each branch of said Territorial legisla-
tures shall consist of one chief clerk, who shall receive a compensation of
six dollars per day; one enrolling and engrossing clerk, at five dollars
per day; sergeant-at-arms and doorkeeper, at five dollars per day; one
messenger and watchman, at four dollars per day each; and one chaplain,
at one dollar and fifty cents per day. Said sums shall be paid only dur-
ing the sessions of said legislatures; and no greater number of officers or
charges per diem shall be paid or allowed by the United States to any
Territory. And section eighteen hundred and sixty-one of the Revised
Statutes is hereby repealed, and this substituted in lieu thereof: Provided^ '
That for the performance of all official duties imposed by the Territorial
legislatures, and not provided for in the organic act, the secretaries of the
Territories respectively shall be allowed such fees as may be fixed by the
Territorial legislatures. And in no case shall the expenditure for public
printing in any of the Territories exceed the sum of two thousand five
hundred dollars for any one year.

Sec. 1918, The legislative assemblies of New Mexico, Washington,
Colorado, Dakota, Arizona, and Wyoming Territories may assign the
judges appointed for such Territories, respectively, to the several judicial
districts thereofj in such manner as each legislative assembly deems
proper and convenient. /

Sec. 1919. The legislative assemblies of Colorado, Dakota, and Wyo-
ming Territories may fix or alter the times and places of holding the
district courts for such Territories, respectively, in such manner as such
legislative assembly deems proper and convenient.

Sec. 1862. Every territory shall have the right to send a delegate to
the house of reprf>sentatives of the United States, to serve during each con-

The Oroaj^ic Law. xiii

gress, who shall be elected by the voters in the territory qualified to elect
members of the legislative assembly thereof. The person having the
greatest number of votes shall be declared by the governor duly elected,
and a certificate shall be given accordingly. Every such delegate shall
have a seat in the house of representatives, with the right of debating,
but not of voting.

Sec. 1863. The first election of a delegate in any territory for which a
temporary government is hereafter provided by congress shall be held at
the time and places, and in the manner the governor of such territory may
direct, after at least sixty days' notice, to be given by proclamation; but
at all subsequent elections therein, as well as at all elections for a delegate
in organized territories, such time, places and manner of holding the elec-
tion shall be prescribed by the law of each territory.

Sec. 1864. The supreme court of every territory shall consist of a chief
justice and two associate justices, any two of whom shall constitute a
quorum, and they shall hold their offices for four years, and until their
successors are appointed and qualified. They shall hold a term annually
at the seat of government of the territory for which they are respectively
appointed.

Sec. 1865. Every territory shall be divided into three judicial districts;
and a district court shall be held in each district of the territory by one
of the justices of the supreme court, at such time and place as may be
prescribed by law; and each judge, after assignment, shall reside in the
district to which he is assigned.

Sec. 1866. The jurisdiction, both appellate and original, of the courts
provided for in section 1807 and 1908, shall be limited by law.

Sec. 1867. No justices of the peace in any territory shall have jurisdic-
tion of any case in which the title to land, or the boundary thereof, in
anywise comes in question.

Sec. 1926. Justices of the peace, in the territories of New Mexico, Utah,
Washington, Dakota, Idaho, Montanaand Wyoming shall not have juris-
diction of any matter in controversy where the debt or sum claimed ex-
ceeds one hundred dollars.

Sec. 1868. The supreme court and the district courts, respectively, of
every territory, shall possess chancery, as well as common law juris-
diction. ,

Sec. 1907. The judicial power in New Mexico, Utah, Washington,
Colorado, Dakota, Idaho, Montana, and Wyoming, shall be vested in a
supreme court, district courts, probate courts, and in justices of the
peace.

Sec 1869. Writs of error, bills of exception, and appeals shall be al-
lowed, in all cases, from the final decisions of the district courts to the
supreme court of all the territories, respectively, under such regulations as
may be prescribed by law; but in no case removed to the supreme court
shall trial by jury be allowed in that court.

Sec. 1909. Writs of error and appeals from the final decisions of the
supreme court of either of the Territories of New Mexico, Utah, Colo-

XIV The Oegasic Law.

rado, Dakota, Arizona, Idaho, Montana, and Wyoming, shall be allowed
to the Supreme Court of the United States, in the same manner and under
the same regulations as from the circuit courts of the United States,
where the value of the property or the amount in controversy, to be
ascertained by the oath of either party, or of other competent witnesses,
exceeds one thousand dollars, except that a writ of error or appeal shall
be allowed to the Supreme Court of the United States from the decision
of the supreme courts created by this Title, or of any judge thereof, or of
the district courts created by this Title, or of any judge thereof, upon
writs of habeas corpus involving tbe question of personal freedom.

Sec. 1910. Each of the district courts in the Territories mentioned in
the preceding section shall have and exercise the same jurisdiction, in all
cases arising under the Constitution and laws of the United States, as is
vested in the circuit and district courts of the United States; and the first
six days of every term of the respective district courts, or so much thereof
as is necessary, shall be appropriated to the trial of causes arising under
such Constitution and liiws; but writs of error and appeals in all such
cases may be had to the supreme court of each Territory, as. in other
cases.

Sec. 1870. The supreme court of each territory shall appoint its own
clerk, who shall hold his office at the pleasure of the court for which he
is appointed.

Sec. 1871. Each judge of the supreme court of the respective territories
shall designate and appoint one person as clerk of the district over which
he presides, where one is not already appointed, and shall designate and
retain but one such clerk where more than one is already appointed, and
only such district clerk shRll be entitled to a compensation from the United
States.

Sec. 1872. Every district clerk shall be also the register in chancery,
and shall reside and keep his office at the place where tbe court is held.

Sec. 1873. Temporarily, and until otherwise provided by law, the gov-
ernor of every territory which may be hereafter established shall define,
by proclamation, the judicial districts of such territory, and assign the
judges appointed for such territory to the several districts as well as fix
the times and places for holding courts in the respective counties or subdi-
visions of each judicial district.

Seo. 1874. The judges of th'e supreme court of each territory are au-
thorized to hold court within their respective districts, in the counties
wherein, by the laws of the territory, courts have been or may be estab-
lished, for the purpose of hearingand determining all matters and causes,
except those in which the United States is a party; but the expense of
holding such courts shall be paid by the territory, or by the counties in
which the courts are held, and the United States shall in no case be charge-
able therewith.

Sko. 1875. There shall be appointed in each territory a person learned
in the law, to act as attorney for the United States. He shall continue in
office for four years, and until his successor is appointed and qualified,
unless sooner removed by the president.

The Oegakio Law. xv

Seo. 1876. There shall be appointed a marshal for each territory. He
shall execute all process issning from the territorial courts when exer-
cising their jurisdiction as circuit and district courts of the United States,
He shall have the power and perform the duties, and be subject to the
regulations and penalties, imposed by law on the marshals for the several
judicial districts of the United States. He shall hold his office for four
years, and until his successor is appointed and qualified, unless sooner
removed by the president.

Sec. 1877. The governor, secretary, chief justice and associate justices,
attorney and marshal, of every territory, shall be nominated, and by and
with the advice and consent of the senate, appointed by the president.

Sec. 1878. The governor and secretary for each territory shall, before
they act as such, respectively take an oath before the district judge, or some
justice of the peace in the limits of the territory for which they are ap-
pointed, duly. authorized to administer oaths by the laws in force therein,
or before ttie chief justice or some associate justice of the supreme court
of the United States, to support the constitution of the United States and
faithfully to discharge the duties of their respective offices; and such oaths
shall be certified by the person befoje whom the same are taken; and such
certificates shall be received and recorded by the secretary among the ex-
ecutive proceedings; and the chief justice and associate justices, and all
other civil officers appointed for any territory, before they act as such,
shall take a like oath before the governor or secretary, or some judge or
justice of the peace of the territory, who may be duly commissioned and
qualified, and such oath shall be certified and transmitted by the person
taking the same to the secretary, to be by him recorded as above directed;
but after the first qualification of the officers herein specified in the case
of a new territory, as well as in all organized territories, the like oath
shall be taken, certified and recorded in such manner and form as may be
prescribed by the law of each territory.

Sec. 1879. The annual salary of the chief justice and associate justices
of all the. territories now organized, shall be three thousand dollars each.

Seo. 1880. The salary of the attorney of the United States for each ter-
ritory shall be at the rate of two hundred and fifty dollars annually.

Sec. 1881. The salary of the marshal of the United States for each ter-
ritory shall be at the rate of two hundred dollars a year.

Sec. 1882. The salaries provided for in this title, to be paid to the gov-
ernor, secretary, chief justices and associate justices, district attorney,
and marshal of the several territories, shall be paid quarter-yearly at the
treasury of the United States.

Sec 1935. There shall be appropriated annually, one thousand dollars,
to be expended by the respective governors, to defray the contingent ex-
penses of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Mon-
tana and Wyoming, including the salary of the clerk in the executive de-
partments of those territories.

Seo. 1883. The fees and costs to be allowed to the United States attor-
neys and marshals, to the clerks of the supreme and district courts, and

XVI The Organic Law.

to jurors, witnesses, commissioners, and printers, in the territories of the
United States shall be the same for similar services by such persons as
prescribed in chapter 16, title **The Judiciary," and no othet compensa-
tion shall be taxed or allowed.

Sec. 1884. When any officer of a territory is absent therefrom, and
from the duties of his office, no salary shall be paid him during the year
in which such absence occurs, unless good cause therefor be shown to the
president, who shall officially certify his opinion of such cause to the
proper accounting officer of the treasury, to be filed in his office.

Sec. 1885. The legislative assembly of every territory hereafter organ-
ized shall hold its first session at such time and place in the territory as
the governor thereof shall appoint and direct; and at the first session of
the legislative assembly, or as soon thereafter as it may be deemed expe-
dient, the governor and legislative assembly shall proceed to locate and
establish the seat of government for the territory at such place as they
may think proper; but such place shall thereafter be subject to be changed
by the governor and legislative assembly.

Sec. 1886. All accounts for disbursements in the territories of the
United States, of money appropriated by congress for the support of gov-
ernment therein, shall be settled and adjusted at the treasury depart-
ment; and no act, resolution, or order of the legislature of any territory,
directing the expenditure of the sum, shall be deemed a sufficient authority
for such disbursement, but sufficient vouchers andproof for the same shall
be required by the accounting officers of the treasury. No payment shall
be made or allowed, unless the secretary of the treasury has estimated
therefor and the object been approved by congress. No session of the
legislature of a territory shall be held until the appropriation for its ex-
penses has been made.

Sec. 1887. Hereafter no expense for printing, exceeding four thousand
dollars, including printing laws, journals, bills, and necessary printing
of the same nature, shall be incurred for any session of the legislature of
any of the territories.

Sec. 1939. There shall be appropriated respectively, for the territories
of New Mexico, Utah, Colorado, Dakota, Arizona and Wyoming, annu-
ally, a sufficient sum, to be expended by the secretary of each territory
herein named, upon an estimate to be made by the secretary of the trea-
sury, to defray the expenses of the legislative assembly and other inci-
dental expenses; and the secretary of each territory above specified shall,
annually, account to the secretary of the treasury for the manner in which
such sum has been expended.

Sec. 1888. No legislative assembly of a territory shall, in any instance
or under any pretext, exceed the amount appropriated by congress for its
annual expenses.

Sec. 1889. The legislative assemblies of the several territories shall
not grant private charterd or especial privileges, but they may, by general
incorporation acts, permit persons to associate themselves together as
bodies corporate for mining, manufacturing, and other industrial pur-

The Obganic Law. xvn

Boits, or the constroction or operation of railroads, wagon roads, irriga-
ting ditches, and the colonization and improvement of lands in connec*
tion therewith, or for colleges, seminaries, churches, libraries, or any
benevolent, charitable or scientific association.

Sec. 1890. No corporation or association for religions or charitable
purposes shall acquire or hold real estate in any territory, during the
existence of the territorial government, of a greater value than fifty
thousand dollars; and all real estate acquired or held by such corpora-
tion or association contrary hereto, shall be forfeited and escheat to the
United States; but existing vested rights in real estate shall not be im-
paired by the provisions of this section.

Sec. 1891. The constitution and all laws of the X3nited States which are
not locally inapplicable, shall have the same force and effect within all
the organized territories, and in every territory hereafter organized as
elsewhere within the United States.

Sec. 1892. Any penitentiary which has been, or may hereafter be,
erected by the United States in an organized territory shall, when the
same is ready for the reception of convicts, be placed under the care and
control of the marshal of the United States for the territory or district in
which such penitentiary is situated; except as otherwise provided in^he
case of the penitentiaries in Montana, Idaho, Wyoming, and Colorado.

Sec. 1893. The attorney general of the United States shall prescribe
all needful rules and regulations for the government of such penitentiary,
and the marshal having charge thereof shall cause them to be duly and
faithfully executed and obeyed, and the reasonable compensation of the
marshal and of his deputies for their services under such regulations shall
he fixed by the attorney general.

Sec. 1894. The compensation, as well as the expense incident to the
subsistence and employment of offenders against the laws of the United
States, who have been, or may hereafter be, sentenced to imprisonment in
such penitentiary, shall be chargeable on, and payable out of, the fund
for defraying the expenses of suits in which the United States are con-
cerned, and of prosecutions for offenses committed against the United
States; but nothing herein shall be construed to increato the maximum
compensation now allowed by law to those officers.

Ssc. 1896. Any persOtt convicted by a court of competent jurisdiction
in a territory, fOr. a violation of the laws thereof, and sentenced to im-
Xyrisonment, may, at the cost of such territory » on such terms and condi-
tions as may be preiscribed by such rules and regulations, be received*
subsisted and employed in such peoitentiary during the term of his im-
prisonment, in the isame manner as if be had been convicted of ad offense
againtit the laws of the Unite^d States.

Sec. 1946. Sections numbered 16 and 36 in each township in the terri-
tories of New Mexico, Ut^h, Colorado, Dakota, Arizona, Idaho, Montana
and Wyoming shall be Reserved for the purpose of being applied to
sdiools in the several territories herein named, aad in the states and terri-
tories hereafter to be erected out of the same.

CONSTITUTION OF THE UNITED STATES.

Wk, the people of the Uaited States, in order to form a more perfect
union, establish justice, insure domestic tranquility, provide for the
common defense, promote the general welfare, and secure the blessings

' of liberty to ourselves and our posterity, do ordain and establish this
constitution for the United States of America.

ARTICLE I.

Sectiok 1, All legislative powers herein granted shall be vested in a
congress of the United States, which shall consist of a senate and house
of rel)resentative8.

Section 2. The house of representatives shall be composed of mem-
bers chosen every second year by the people of the several states, and
the electors in each state shall have the qualifications requisite for electors
of the most numerous branch of the state legislature.

No person shall be a representative who shall not have attained to the
age of twenty-five years, and been seven years a citizen of the United
States, and who shall not, when elected, be an inhabitant of that state in
which he shall be chosen.

Representatives and direct taxes shall be apportioned among the sev-
eral states which may be includet) within this union according to their
respective numbers, which shall be determined by adding to the whole
number of free persons, including those bound to service for a term of
years, and excluding Indians not taxed, three-fifths of all other persons.
The actual enumeration shall be made within three years after the first
meeting of the congress of the United States, and within every subsequent
term of ten years, in such manner as they^shall by law direct. The num-
ber of representatives shall not exceed one for every thitty thousand, bat
each state shall have at least one representative^, and until fluch enumera-
tion shall be made, the state of New Hampshire shall be entitled to choose
three, Massachusetts eight, Rhode Island and Providence Plantations one,
Connecticut five. New York six^'NJsw Jersey four, Pennsyivania eight,

Constitution op the United States. xix

» i — „__— — ^— — «— ^— .^-^— — ^— ^.^~— — — ^^— — .— .^^^— — — ^— — — — ^— ^

Delaware one, Maryland six, Virginia ten, North Carolina five, South
Carolina five, and Georgia three.

When vacancies happen in the representation from any state, the execu-
tive authority thereof shall issue writs of election to till such vacancies.

The bouse of representatives shall choose their speaker and other offi-
cers, and shall have the sole power of impeachment.

Section 3. The senate of the United States shall be composed of two
senators from each state, chosen by the legislature thereof, for six years,
and each senator shall have one vote.

Immediately after they shall be assembled in consequence of the first
election, they shall be divided as equally as may be into three classes.
The seats of the senators of the first class shall be vacated at the expira-
tion of the second year; of the second class, at the expiration of the
fonrthyear; and of the third class, at the expiration of the sixth year, so
that one-third may be chosen every second year; and if vacancies happen
by resignation or otherwise, during the recess of the legislature of any
state, the executive thereof may make temporary appointments until the
next meeting of the legislature, which shall then fill such vacancies.

No person shall be a senator who shall not have attained to the age of
thirty years, and been nine years a citizen of the United States, and who
shall not, when elected, be an inhabitant of that state for which he shall
be chosen.

The vice-president of the United States shall be president of the senate,
bnt shall have no vote, unless they shall be equally divided.

The senate shall choose their other officers, and also a president pro
tempore in the absence of the vice-president, or w^hen he shall exercise the
office of president of the United States.

The senate shall have the sole power to try all impeachments. When
sitting for that purpose, they shall be on oath or affirmation. When the
president of the United States is tried, the chief justice shall preside, and
no person shall be convicted without the concurrence of two-thirds of the
members present.

Judgment in cases of impeachment shall not extend further than to re-
moval from office, ahd disqualification to hold and enjoy any office of
honor, trust or profit Under the United States; but the party convicted
shall nevertheless be liable and subject to indictment, trial, judgment and
punishment according to law.

Section 4. The times, places and manner of holding elections for sen-
ators igid representatives, shall be prescribed in each state by the legisla-
ture thereof; but the congress may at any time by law make or alter such
r^ulations, except as to the places of choosing senators.

The congress shall assemble at least once in every year, and such meet-
ing shall be on the first Monday in December, unless they shall by law
appoint a difTerent day.

SBcndN 6- Each house shall be the judge of the elections, returns and
qualifications of its own members, and a majority of each shall consti-
tute a quorum to do business; but a smaller number may adjourn from

XX Constitution of the United States.

■ < ■ ■ >^ ■■!■ I I I I ■ I p ■ p^— ^^^ g I ' m

day to. day, and may be anthorized to compel the attendance of absent
members, in such manner, and under such penalties as each house ma|
provide.

Each house may determine the rules of its proceedings, punish iti
members for disorderly behavior, and, with the concurrence of two-thirds,
expel the member.

Each house shall keep a journal of its proceedings, and from time to
time publish the same, excepting such parts as may in their judgment
require secrecy; and the yeas and nays of the members of either house on
any question shall, at the desire of one-fifth of those present, be entered
on the journal.

Neither house, during the session of congress, slutU, without the con-
sent of the other, adjourn for more than three days, nor to any otherplace
than that in which the two houses shall be sitting.

Section 6. The senators and representatives shd,ll receive a compensa-
tion, for their services, to be ascertained by law, and paid out of the
treasury of the United States. They shall in all cases, except treason,
felony and breach of the peace, be privileged from arrest during their at-
tendance at the session of their respective houses, and in going to and re-
tturning from the same; and for any speech or debate in either house, they
shall not be questioned in any other place.

No senator or representative shall, during the time for which he wa«
elected, be appointed to any civil office under the authority of the Unitedi
States, which shall have been created, or the emoluments whereof shall
have been increased during such time; and no person holding any office
under the United States, shall be a member of either house during hi*
.continuance in office.

'Section 7. All bills for raising revenue shall originate in the house of
irepresentatives, but the senate may propose or concur with amendments
^as'on other bills.

*Every bill which shall have passed the house of representatives and the
senate, shallj before it become a law, be presented to the president of tW
United States; if he approve, he shall sign it, but if not, he shall retur^
it, with his objections, to that house in which it shall have originated^
who shall enter the objections at large on their journal, and proceed ta
reconsider it. If, after such reconsideration, two-thirds of that houai
•shall agree to pass the bill, it shall be sent, together with the objectioni
to the other house, by which it shall likewise be reconsidered, and if 9J
proved by two- thirds of that house, it shall become a law. But in
such cases the votes of both houses shall be determined by yeas and nayi
and the names of the persons voting for and against the bill shall be eni
tered on the journal of each house respectively. If any bill shall not W
returned by the president within ten days (Sundays excepted) after it shaB
have been presented to him, the same shall be a law, in like manner al
if he had signed it, unless the congress, by their adjournment, prevent it«
return, in which case it shall not be a law.

Constitution of the United States. xxi

Every order, resolution, or vote to which the concurrence of the senate
and house of representatives may be necessary (except on a question of
a^jonrnment) shall be presented to the president of the United States, and
before the same shall take effect, shall be approved by him, or being dis-
approved by him, shall be repassed by two-thirds of the senate and house
of representatives, according to the rules and limitations prescribed in
the case of a bill.

Section 8. The congress shall have power:

To lay and collect taxes, duties, imposts and excises, to pay the debts
and provide for the common defense and general welfare of the United
States; but all duties, imposts and excises fehall be uniform throughout
the United States.

To borrow money on the credit of the United States.

To regulate commerce with foreign nations, and among the several
elates, and with the Indian tribes.

To establish an uniform rule for naturalization, and uniform laws on
the subject of bankruptcies throughout the United States.

To coin money, regulate the value thereof, and of foreign coin, and fix
the standard of weights and measures.

To provide for the punishment of counterfeiting the securities and cur-
rent coin of the United States.

To establish postoffices and post roads.

To protnote the progress of science and useful arts, by securing for lim-
ited times to authors and inventors the exclusive right to their respective
writings and discoveries.

To constitute tribunals inferior to the supreme court.

To define and punish piracies and felonies committed on the high seas,
and offenses against the law of nations.

To declare war, grant letters of marque and reprisal, and make rules
concerning captures on land and water.

To raise and support armies, but no appropriation of money to that
use shall be for a longer term than two years.

To provide and maintain a navy.

To make rules for the government and regulation of the land and naval
forces.

To provide for calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions.

To provide for organising, arming, and disciplining the militia, and for
governing such part of tliem as may be employed in the service of the
United States, reserving to the states respectively the appointment of the
officers, and the anthority of training the militia, according to the discip-
line prescribed by congress.

To exercise exclusive legislation, in all cases whatsoever, over such dis-
trict (not exceeding ten miles square) as may, by cession of particular
itates, and the acceptance of congress, become the seat of government of
the United States, and to exercise like authority over all places purchased
by the consent of the legislature of the state in which the same shall be,

r

XXII Constitution of the United States.

for the erection of forts, magazines, arsenals, dock-yards, and other need-
ful buildings; and

To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this con-
stitution in the government of the United States, or in any department or
officer thereof.

Section 9. The migration or importation of such persons as any of
the stales now existing shall think proper to admit, shall not be prohib-
ited by the congress prior to the year one thousand eight hundred and
eight, but a tax or duty may be imposed on such importation, not exceed-
ing ten dollars for each person.

The privilege of the writ of habeas corpus shall not be suspended, un-
less when in cases of rebellion or invasion the public safety may require
it.

No bill of attainder or ex post facto law shall be passed.

No capitation or other direct tax shall be laid, unless in proportion to
the census or enumeration hereinbefore directed to be taken.

No tax or duty shall be laid on articles exported from any state.

No. preference shall be given by any regulation of commerce or revenue
to the ports of one state over those of another; nor shall vedsels bound
to, or from, one state, be obliged to enter, clear, or pay duties in another.

No money shall be drawn from the treasury but in consequence of ap-
propriations made by law; and a regular statement and account of the
receipts and expenditures of all public money shall be published from
time to time.

No title of nobility shall be granted by the United Statps; and no per-
son holding any office of profit or trust under them, shall, without the
consent of the congress, accept of any present, emolument, office or title,
of any kind whatever, from any king, prince or foreign state.

Section 10. No state shall enter into any treaty, alliance or confeder-
ation; grant letters of marque and reprisal; coin money; emit bills of
credit; make any thing but gold and silver coin a tender in payment of
debts; pass any bill of attainder, ex post facto law, or law impairing the
obligation of contracts; or grant any title of nobility.

No state shall, without the consent of the congress, lay any imposts or
duties on imports or exports, except what may be absolutely necessary
for executing its inspection laws; and the net produce of all duties and
imposts, laid by any state on imports or exports, shall be for the use of
the treasury of the United States; and all such laws shall be subject to
the revision and control of the congress.

No state shall, without the consent of congress, lay any duty on ton-
nage, keep troops or ships of war in time of peace, enter into any agree-
ment or compact with another state or with a foreign power, or engage
in war unless actually invaded, or in such imminent danger as will not
admit of delay.

COHSTITUTION OF TEE UkITKD StA.T£S. XXIII

ARTICLE n.

Section 1. The executive pow^r shall be vested in a President of the
Halted States of America. He shall hold his office during the term for
four years, and, together with the vice-presidetit, <5hosen for the same
term, be elected as follows:

Each state shall appoint, in such manner as the legislature thereof may
direct, a number of electors, equal to the whole number of senators and
representatives to which the state may be entitled in the congress; but no
senator or representative, or person holding an office of trust or profit
under the United States, shall be appointed an elector.

The electors shall meet in their respective states, and vote by ballot for
two persons, of whom one at least shall not be an inhabitant of the same
8ta.te with themselves. And they shall make a list of all the persons voted
for, and of the namber of votes for each; which list they shall sign and
certify, and transmit sealed to the seat of the government of the United
States, directed to the president of the senate. The president of the sen-
ate shall, in the presence of the senate and house of representatives, open
all the certificates, and the votes shall then be counted. The person hav-
ing the greatest number of votes shall be the president, if such number
be a majority of the whole number of electors appointed; and if there he^
more than one who have such majority, and have an equal number of
votes, then the house of representatives shall immediately choose by bal-
lot one of them for president; and if no person have a majority, then
from the five highest on the list the said house shall in like manner choose
the president. But in choosing the president, the votes shall be taken by
states, the representation from each state having one vote; a quorum for
this purpose shall consist of a member or members from two-thirds of the
states, and a maiority of all the states shall be necessary to a choice. In
every case, after the choice of the president, the person having the greatest
number of votes of the electors shall be the vice-president. But if there
still remain two or more who have equal votes, the senate shall choose
from them by ballot the vice-president.*

The congress may determine the time of choosing the electors, and the
day on which they shall give their votes; which day shall be the same
throughout the United States.

No person except a natural-born citizen, or a citizen of the United
States at the time of the adoption of this constitution, shall be eligible to
the office of president; neither shall any person be eligible to that office
who shall not have attained to the age of thirtv-flve years, and been four-
teen years a resident within the United States*

In case of the removal of the president from office, or of his death, re-
signation, or inability to discharge the powers and duties of the said
office, the same shall devolve on the vice-president, and the congress may
by law provide for the case of removal, death, resignation, or inability,
both of the president and vice-president, declaring what officer shall then

•Thie claue of the Conitltntlon has been emended. See twelfth article of the amendmenti.

XXIV Constitution of the Unitbd States.

act as president, and snch oflScer shall aot accordingly, until the disability
be removed, or a president shall be elected.

7he president shall, at stated times, receive for his services a compeiiT
satioii, which ^hall neither be increased nor diminished daring the period
for which he shall have been elected, and he shall not receive within that
period any other emolument from the United States, or any of them.

Before he enter. on the executioji of his ofEice, he shall take the follow-
ing oath or affirmation :

I do solemnlj swear (or affirm) that I will faithfaliy exocate the ofllce of President of the United States, and
will, to the best of my ability, preserve, protect, and defend the Constltation of the United States.

Section 2. The president shall be commander-in-chief of the army and
navy of the United States, and of the militia of the several states when,
called into the actual service of the United States; he may require the
opinion, in writing, of the principal officer in each of the executive de-
partments, upon any subject relating to the duties of their respective
offices, and he shall have power to grant reprieves and pardons for
offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the senate,
to make treaties, provided two-thirds of the senators present concur; and
he shall nominate and, by and with the advice and consent of the senate,
stftll appoint ambassadors, other public ministers and consuls, fudges of
the supreme court, and all other officers of the United States whose ap-
pointments are not herein otherwise provided for, and which shall be es-
tablished by law; but the congress may by law vest the appointment of
such inferior officers as they think proper in the president alone, in the
courts of law, or in the heads of departments.

The president shall have power to fill up all vacancies that may happen
during the recess of thef senate,, by granting cominissions that shall ex-
pire at the end of their next session.

Section 3. He shall from time to time give to the congress information
of the state of the union, and recommend to their consideration such
measures as he shall judge necessary and expedient; he niay^ on extraor-
dinary occasions, convene both houses, or either of them, and in case of
disagreement between them, with respect to the time of adjournment, he
may adjourn them to such time as he shall think proper; he shall receive
ambassadors and other public ministers; he shall take care that the laws
be faithfully executed, and shall commission all the officers of the United
Stated.

Section 4. The President. Vice-President, and all civil officers of the
United States, shall be removed from office on impeachment for, and con-
viction of, treason, bribery, or other high crimes aiid misdemeanors.

SEcnoN 1. The judicial powi^t'6f the United States shall be vested in
one supreme court, and in such inferior courts as the congress may from
time' to time ordain and establish! The judges, both of the supreme and
inferior courts, shall hold their offices, during good behavior, and shall.

CONOTITUTION OF THE UnTTBD StATES* XXY

at stated times, receive for tbeir services a compensation, which shall, not:
be diminished daring their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and
equity, arising under this constitution, the laws of the United States, and,
treaties made, or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers, and consuls; to all cases
of admiralty and maritime jurisdiction; to controversies to which the
United States shall be a party; to controversies between two or more
states; between a state and citizens of another state; between citizens of.
different states; between citizens of the same state claiming lands under
grants of different states, and between a state, or the citizens thereof, aad
foreign states, citizens, or subjects.

In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall he a party, the supreme court shall have
original jurisdiction. In all other cases before mentioned, the supreme
court shall have appellate jurisdiction, both as to law and fact, with such
exceptions, and under such regulations as the congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by
jury; and such trial shall be held in the state where the said crime shall
have been committed; but when not committed within any state, the trial
shall be at such place or places as the congress may by law have directed.

Section 3. Treason against the United States, shall consist only in
levying war against them, or in adhering to their enemies, giving them
aid and comfort. No person shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in
open court.

The congress shall have power to declare the punishment of treason,
but no attainder of treason shall work corruption of blood, or forfeiture
except during the life of the person attainted.

ARTICLE IV-

Section 1. Full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other state, xlnd
the congress may by general laws prescribe the manner in which such
acts, records and proceedings shall- be proved, atid the effect thereof.

SEcrnoN 2. The citizens of each state shall be entitled to aW privileges
and immunities) of citizens in the several states.

A person charged in any state with trieason, felony, or other crime, who
shall flee from justice, aiid be found in another state, shall, on demand of
the executive authority of the state from which he fled, be delivered up, to
be removed to the state haVittg jiirisdictibn of the crime.

No person held to service or labbi^iii one state under the laws thereof,
escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be delivered
up on claim of the party to whom rsuch service or labor may be due.

Section 3. New states may b^ adipitted by the congress into this union;
but no new state shall be formed or erected within the jurisdiction of any

sxxi .Constitution of the United States.

■

other state; not* iany state be fdrined by the junction of two or more
states, or parts of states, withotit the consent of the legislatures of the
states concerned as well as 6f the congress.

The congress shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging to
the IJtiited StatiBs; and nothing in this constitution shall be so construed
as to prejudice any claims of the United States^ or of any particular
state.

Section 4. The United States shall . guarantee to every state in the
union a republican form of government, and shall protect each of them
- against invasion, and on application of the legislature, or of the execu-
tive (when the legislature cannot be convened), against domestic violence.

ARTICLE V.

The congress, whenever two-third? of both houses shall deem it neces-
sary, shall propose amendments to this constitution, or, on the applica-
tion of the legislatures of two-thirds of the several states, shall call a
convention for proposing amendments, which, in either case, shall be valid
to all intents and purposes, as part of this constitution, when ratified by
the legislatures of three-fourths of the several states, or by conventions
in three-fourths thereof, as the one or the other mode of ratification may
be proposed by the congress: Provided^ That no amendment which may
be made prior to the year one thousand eight hundred and eight shall in
any manner affect the first and fourth clauses in the ninth section of the
first article; and that no state, without its consent, shall be deprived of
its equal suffrage in the senate.

ARTICLE VI.

All debts contracted and engagements entered into, before the adoption
of this constitution, shall be as valid against the United States under this
constitution, as under the confederation.

This constitution, and the laws of the United States which shall be
made in pursuance thereof, and all treaties made, or which shall be made,
\inder the authority of the United States, shall be the supreme law of the
land; and the judges in every state shall be bound thereby, any thing in
the constitution or laws of any state to the contrary notwithstanding.

The senators and representatives before mentioned, and the naembers
of the several state legislatures, and all executive and judicial officers,
both of the United States and of the several states, shall be. bound by
oath or affirmation, to support this constitution; but no religious test
shall ever be required as a qualification to any office or public trust under
the United States.

ARTICLE VII-

The ratification of the conventions of nine states shall be sufficient for
the establishment of this constitution between the states so ratifying the
same.

Constitution of thb United States. •

xxvn

Done in convention by the unanimous consent of the states present, the

seventeenth day of September, in the year of our Lord one thousand seven

hundred and eighty-seven, and of the independence of the United States

of America the twelfth. In witness whereof we have hereunto subscribed

our names.

GEO. WASHINGTON,

President and Deputy from Virginia.

John Langdon,

NEW HAMPSHIRE.

Nicholas Oilman.
MASSACHUSETTS.
Nathaniel Gobham, . Rufcs Ejng,

CONNECTICUT.
Wm. Sam'l Johnson, Roger Sheeman.

NEW YORK.
Alexandee Hamilton,

NEW JERSEY.

David Brearly.
JoNA Dayton.

PENNSYLVANIA.

Thomas Mifflin.
Geo. .Clymer.
Jabed Ingersoll.
Gouv. Morris.

DELAWARE.

WiL. Livingston,
Wm. Paterson,

B. Franklin,
RoBT. Morris,
Thos. Fitzsimons,
James Wilson,

Geo. Read,
John Dickinson,
Jaco. Broom,

Jambs M'Henry,
Danl. Carroll,

John Blair,

Wm. Blount,
Hu. Williamson,

Gunning Bedford, Jun'r.
Richard Bassett.

MARYLAND.

Dan. of St. Thps. Jenifer.

VIRGINIA.

James Madison, Jr.

NORTH CAROLINA.

Rich'd Dobbs Spaight.

SOUTH CAROLINA.

J. Rutledge,
Charles Pinckney,

William Few,

Attest :

Charles Cotbswobth Pinckney.
Pierce Butler.
GEORGIA.

Abr. Baldwin.

WILLIAM JACKSON, Secretary.

ARTICLES IN ADDITION

AND

AMENDMENTS TO THE CONSTITUTION,

PBOPOSED BY CONGBESS, AND EATIFIED BY THE LEGISLATURES OF THE SEVERAL
STATES, PURSUANT TO ARTICLE V OB' THE ORIGINAL CONSTITUTION.

ARTICLE L

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble and to
petition the government for a redress of grievances.

ARTICLE II.

A well regulated militia being necessary to the security of a free state,
the right of the people to keep and bear arms shall not be infringed.

ARTICLE III.

No soldier shall, in time of peace, be quartered in any. house without
the consent of the owner, nor in time of war but in a manner to be pre-
scribed by law.

ARTICLE IV.

The right of the people to be secure in their persons, houses, papers
and effects, against unreasonable searches and seizures, shall not be vio-
lated; and no warrants shall issue but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.

ARTICLE V.

No person shall be held to answer for a capital or otherwise infamous
crime^ unless on a presentment or indictment of a grand jury, except in

COKSntUTlON OF THE UnTTED StaTES. XXIX

— . J —

cases aiiBing in the land or naval forces, or in the militia when in actual
service, in time of war or public danger; nor shall any person be subject
fop the same offence to be twice put in jeopardy of life or limb; nor ^liall
be compelled, in any criminal case^ to be a witness against himself, iior
be deprived of life, liberty, or property, without due process of law; nor
shall'private property be taken for public use without just compensation.

ARTICLE VI.

In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor; and to
have the assistance of counsel for his defence.

ARTICLE VII.

In suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved; and no fact,
tried by a jury, shall be otherwise re-examined in any court of the United
States than according to the rules of the common law.

ARTICLE VIII.

Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.

ARTICLE IX.

The enumeration^ in th§ constitution, of certain rights, shall not be con-
strued to deny or disparage others retained by the people.

ARTICLE X.

The powers not delegated to the United States by the constitution, nor

prohibited by it to the states, are reserved to the states respectively, cfr to

the people.

ARTICLE XI.

The judiofa) poweir of the United States shall not be construed to extend

to any suit in latr oi^ equity, commenced or prosecuted against one of

the Uniti^ Stately by eitiiens of anothw state, dr by citizens or subjects

of any foreign state.

ARTICLE XII.

The electors shall meet in their respective states, and vote by ballot for
president aiid'vice-preBldent, one of whom, at least, shall not be an in-
habitant of Vh^ satlie ^tate with themselves. They shall hame in their
ballots the petson voted for as president, and in distinct ballots the
person voted fbr as vice-president; and they shair make distitict lists of
aH persons voted for as president, and of all persons voted for as vice-
' J)re8ident, and of the number of votes for each; which lists they shall
isign and certify, and transmit sealed to the seat^of the government of the

XXX COKSTITUTION OF JHE TJnITED StATBS.

United States, directed ip the president of the eepate. The president of
the senate shall, in the presence of the senate and house of representa-
tives, open all the certificates, and the votes shall then be counted, fhe
person having the greatest. number of votes for president, shall be |the
president, if such number be a majority of the whole number of electors
appointed; and if no person have such majority, then from the persons
having the highest numbers, not exceeding three, on the list of those
voted for as president, the house of representatives shall choose imme-
diately, by ballot, the president. Bat in choosing the president, the
votes shall be taken by states, the; representation from each state having
one vote; a quorum for this purpose shall consist of a member or mem-
bers from two- thirds of the states, and a majority of all the states shall
be necessary to a choice. And if the^ house of representatives shall not
choose a president whenever the right of choice shall devolve upon' them,
before the fourth day of March next following, then the vice-president
shall act as president, as in the case of the death or other constitutional
disability of the president.

The person having the greatest number of votes as vice-president shall
be the vice-president, if such number be a majority of the whole number
of electors appointed; and if no person have a majority, then from the
two highest numbers on the list the senate shall choose the vice-president.
A quorum for the purpose shall consist of two-thirds of the whole num-
ber of senators, and a majority of the whole number shall be necessary
to a choice. But no person constitutionally ineligible to the oflBce of
president shall be eligible to that of vice-president of the United States.

ARTICLE Xin.

Section 1. Neither slavery nor involuntary servitude, except as a pun-
ishment of crime, whereof the party shall have been duly convicted, shall
exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appro-
priate legislation.

ARTICLE XIV.

Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States, and
of the state wherein they reside. No &tate shall make or enforce any law
which shall abridge the privileges or immuniti^ of citizens of the United
States, nor shall any state deprive any person of life, liberty or property,
without due process of law, nor deny to: iny person within its jurisdiction
the equal protection of the laws, ^^

Section 2. Representatives shall be apportioned among the several 1

ata^s according to their respective numbers,, cpu^^qg the whole number i

of perspns in each state, excluding Indiians not taxed. But when the /

right to ^ote at any election for the choice of electors for president ^nd J

vice-^president of the United States, representatives in congress, the execu-
tive and judicial officers of a state, or the members of the legislature
thereof, is denied to any of the male inhabitants of Buch state, being

;{

li

I

'^^

CONSTITDTION OF TnE TJnITBD StATES. XXXI

twenty-one years of age, and citizens of the United States, or in any way
abridged, except for participation in rebellion or other crime, the basis
of representation therein shall be reduced in the proportion which the
number of sach male citizens shs^ll bear to the whole nnmber of male
citizens twenty-one years of age in such state.

Section 3. No person shall be a senator or representative in congress,
or elector of president and vice-president, or hold any office, civil or mili»-
tary, under the United States, or under any state, who, having previously
taken an oath as a member of congress, or as an officer of the United
States, or as a member of any state legislature, or as an executive or ju-
dicial officer of any state, to support the constitution of the United States,
shall have engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But congress may, by a vote of
two-thirds of each house, remove such disability.

Sbction 4. The validity of the, public debt of the United States, au-
thorized by law, including debts Incurred for payment of pensions and
bounties for services in suppressing insurrection or rebellion, shall not
be questioned. But neither the United States nor any state shall assume
or pay any debt or obligation incurred in aid of insurrection or rebellion
against the United States, or any claim for the loss or emancipation of
any slave; but all such debts, obligations, and claims, shall be held ille-
gal and void.

Sectiok 5. The congress shall have power to enforce, by appropriate
j^gislation, the provisions of this article.

ARTICLE XV.

Section 1. The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any state on account of
race, color or previous condition of servitude.

Sbction 2. The congress shall have power to enforce this article by
appropriate legislation.

(fOBTV-THIBD 00N6SE88. SS8S. n. PAGB 838.)

CHAPTER 120.

AN ACT to declare the true intent and meaning of the twentieth section of ah act parsed by the
legislature of the Territory of Dakota, passed January fourteenth, e^hteen hundred and seventy-
five, entitled **An act making the conveyance of homesteads not valid unless tlie wife joins in
the conveyance.*'

Be , it enacted hy tJie Senate and House of Bepreseniaiives of the United
States of America in Congress assembled^ That the tw^eutieth section of the
act named in the title shall not be construed as an absolute repeal of
chapter thirty-seven of the laws of Dakota, approved May twelfth, eight-
een hundred and sixty-two, but only as repealing so much of said chap-
ter thirty-seven as is inconsistent with the first named act, and no other
effect shall be given to said twentieth section.

Approved, March 2, 1875.

(foKTVT FIFTH CONGRESS. SESS. III. PAGE 473.)

CHAPTER 194

A\ ACT providing for an additional associate justice of the supreme court of the Territory of

Dakota.

Be it enacted hy the Senate and House of Representatives of the United
Slates of America in Congress assembled^ That hereafter the supreme court
of the Territory of Dakota, shall consist of a chief justice and three asso-
ciate justices, any three of whom shall constitute a quorum.

Sec. 2. It shall be the duty of the President to appoint an additional
associate justice of said supreme court, in manner now provided by law,
who shall hold his office for the term of four years and until his successor
is appointed and qualified.

Skc. 3. The said Territory shall be divided into four judicial districts,
And a district court shall be held in each district by one of the justices of
the supreme court, at such time and place as may be prescribed by law;
each judge, after assignment, shall reside in the district to which he is
assigned.

Skc 4. Until changed by the legislative assembly of said Territory,
the fourth district of said Territory shall consist of the following counties,
to-wit: Clay, Union, Lincoln, Minnehaha, Moody, Brookings, Duel, Grant,
Codington, Lake, Wood, Hamlin, Clark, Greeley, Stone, Turner, and Mc-
Cook, and the Sisseton and Wahpeton Indian reservation. And the
second district shall consist of the remainder of the Territory which now
constitutes said second district, as defined by the statutes of said Terri-
tory.

Sec 5. Temporarily, and until otherwise provided by law, the addi-
tional associate justice to be appointed under this act is hereby assigned
to said fourth district, and the times and places as now fixed by the
statutes of said Territory for holding court therein shall remain until
changed by law.

Src. 6. The district court of said fourth judicial district shall have no
jurisdiction to try, hear, or determine any matter or cause wherein the
United States is a party, and no United States grand or petit jury shall
be summoned in said court; but said fourth district is hereby attached to
and made a part of the second judicial district for the purpose of hearing
and determining all matters and causes arising within said fourth district
in which the United States is a party.

Approved, March 3, 1879,

CLERKS' FEES.

[The following is section 828 of the revised statutes cf the United States, and the law referred to
in section 4, page 164, as governing the fees of clerks of the district courts :]

For issninff and entering every process, commission, summons, capias,
execution, warrant, attachment, or other writ, except a writ of venire, or
a summons or subpoena for a witness, one dollar.

For issuing a writ of summons or subpoena, twenty-five cents,

For filing and entering every declaration, plea, or other paper, ten
cents.

For administering an oath or affirmation, except to a juror, ten cents.

For taking an acknowledgment, twenty-five cents.

For taking and certifying depositions to file, twenty cents for each folio
of one hundred words.

For a copy of such deposition furnished to a party on request, ten cents
a fblio.

t'or Entering any return, rule, order, continuance, judgment, decree, or
recognizance, or drawing any bond, or making any record, certificate, re-
turn, or report, for each folio, fifteen cents.

For a copy of an entry or record, or of any paper on file, for each folio,
ten cents.

For making dockets and indexes, issuing venire, taxing costs, and all
other services, on the trial or argument of a cause where issue is joined
and testimony given, three dollars.

For making dockets and indexes, taxing costs, and all other services,
in a cause where issue is joined, but no testimony is given, two dollars.

For making dockets and indessTes, taxing costs, and other services, in a
cause which is dismissed or discontinued, or where judgment or decree is
made or rendered without issue, one dollar.

For making dockets and taxing costs, in cases removed by writ of error
or appeal, one dollar.

For affixing the eceal of the court to any instrument, when required,
twenty cents.

For every search I'or any particular mortgage, judgment, or other lien,
fifteen cents.

Clebxs' Fees.

xxxv

For searching the records of the court for Jadgments, decrees, or other
iostraments constituting a general lien on real estate, and certifying the
result of such search, fifteen cents for each person igainst whom such
search is required to be made.

For receiving, keeping, and paying out money, in pursuance of any
statute or order of court, one per centum on the amount so received, kept,
and paid.

For traveling from the office of the clerk, where he is required to reside,
to the place of holding any court required by Iftw to be held, five cents a
mile for going and five cents for returning, and five dollars a day for his
attendance on the court while actually in^session.

All books in the offices of the clerks of the circuit and district courts,
containing the docket or minute of the judgments, or decrees thereof, shall,
daring office hours, be open to the inspection of any person desiring to
examine the same, without any fees or charge therefor, ,

TABLE OF CONTENTS

Preface i n^

Organic Law. . .- , vii

Constitution United States xviii

Act creating 4th Judicial District xx^xin

Clerks' Fees xxxiv

POLITICAL CODE.

Chafteb.

1..

2.
3.

4.

5.

6.

7.

8.

9.
10.
11.

13.

13.

14.
15.
16.

n.

18.

19.
20.
31.

33.

23.
24.

25.
26.
27.

Page.

Seat of government 1

The legislature 1

The statutes 4

Territorial seal 7

Qual'iJBcations for office. 7

Deputies 10

Territorial auditor 10

Territorial treasurer 13

Territorial library 15

Terms of supreme court 15
Assignment of judges of

supreme court 16

Boundaries of judicial

districts. - 16

Subdivision of judicial

districts 18

Clerk of district courts, . 20

District attorney 21

Commissioners. , 22

Notaries public 23

Attorneys and counselors

at law 25

Jurors 28

Administration of oaths 31
Counties and county offi-
cers 31

Vacancies in office and

supplying same 49

Civil townships 51

Incorporation of towns

and cities 71

Townsites 83

Town and city plats 84

Elections 87

Chapter. Page.

28. Revenue 96

29. Highways, bridges, fer-

ries and road super-
visors 125

30. The militia 137

31. Mines and mining 142

32. Logs and lumber 146

33. Police of the territory 146

34. Domestic animals 153

35. Sale intoxicating liquors -157

36. Peddlers' and auctioneers'

license 160

37. Weights 161

38. Homestead and convey-

ance thereof. 162

39. Compensation of public

officers 164

40. Public education 173

41. Protection of birds 191

42. County boundaries and

organization 192

43. Publication of laws 195

44. Legalizing acts of territo-

rial officers 196

45. Repeal of relief bond act.196

46. Detining judicial districts. 197

47. Contests of legislative
elections 199

48. Legislative apportion-
ment 203

49. Real estate of religious
bodies 204

50. Registration of warrants.205

Table of Contents.

xxxrn

CIVIL CODE.

DIYISION FIRST.

PKRSOKS.

Paoi.

PART 1— Persons 208

2 — Personal rights 210

3 — Personal relations. . .211

Title 1 — Marriage 211

Chap. 1 — Marriage contract 211

2 — Dissolution 215

3 — Husband and wife 21i)

Title 2— Parent and child 221

Chap. 1— Children by birth .... 221

2— Children by adoption. 223

Ttfle 3 — Guardian and ward... 224

4 — blaster and servant . . .226

DIVISION SECOND.

PROPEETY.

PART 1— Property in general.. 229
Title 1— Nature of property, . .229

2— Ownership ". . . .230

Chap. 1— Owners 230

2 — Modification of owner-
ship 230

3 — ^Rights of owners 233

4 — Termination of owner-
ship 234

Title 3— General definitions. . .234

PART 2 — Real or immovable

property 235

Title 1 — General provisions. . .235

2 — Estates in real property235

Chap. 1 — Estates in general ... 235

2 — Termination of estates237

3— Servitudes 238

Title 3 — Rights and obligations

of owners 240

Chap. 1 — Rights of owners 240

2 — Obligations of owners 242

Title 4 — Uses and Trusts 242

5 — Powers 244

Part 3— Personal or movable

property 250

Title 1 — Personal property in

general 250

2 — Particular kindp of per-
sonal property 250

Page.

Chap. 1— Things in action 250

2— Shipping 251

3— Corporations 253

4— Products of the mind. 294
5 — Other kinds of per-
sonal property 295

PART 4 — Acquisition of prop-
erty 296

Title 1 — Modes in which prop-

ty may be acquired.296

2 — Occupancy 296

3 — Accession 297

Chap. 1— To real property 297

2 — To personal property .298

Title 4— Transfer 299

Chap. 1 — Transfer in general. ..299
2 — Transfer of real prop-
erty 301

3 — Transfer of personal

property 303

4 — Recording transfers. .305
5 — Unlawful transfers. . .310

Title 5— Will 311

Chap. 1 — Execution and revoca-
tion of wills 311

2— Interpretation of wills.316

3--Geiieral provisions. . .319

Title 6— Succession 321

DIVISION THIRD. ^

OBLIGATIONS.

PART 1— Obligations in gen-

eral 325

Title 1— Definition of obliga-
tions 325

2 — Interpretation of obli-
gations 326

Chap. 1~- General rules of inter-
pretation 326

2 — Joint or several obliga-
tions 326

3— Conditional obliga-
tions 326

4 — Alternative obligati'ns327
Title 3 — Transfer of obligations328
4 — Extinction* of obliga-
tions 329

xxxvnt

Table op Contekts.

Paob.

Chap. 1— Performance 329

2 — Oflfer of performance. 830
3 — ^Prevention of perform-
ance or ojffer 332

4 — Accord and satisfac-
tion 333

5— Novation 333

6 — Release 334

PART 2— Contracts 335

Title 1 — Nature of a 'Contract.. 335

Chap, 1— Definition 335

2— Parties 336

3— Consent 336

4 — Object of a contract. .338

5 — Consideration 339

Title 2 — Manner of creating Con-
tracts 340

3— Interpretation of Con-
tracts 341

4 — Unlawful Contracts 343

5 — Extinction of Contract8.344
Chap. 1 — Contracts — How extin-
guished 344

2 — Rescission 344

3 — Alteration and cancel-
lation 345

PART 3— Obligations imposed

by law 346

PART 4— Obligations arising

from particular trans-
actions 347

Title 1— Sale 347

Chap. 1 — General Provisions. . ..847
2— Rights and obligations

of the seller 349

3— Rights and obligations

of the buyer 351

4 — Sale by auction 352

Title 2— Exchange 352

3— Deposit 363

Chap, 1 — Deposit in general . . .553
2 — Deposit for keeping.. 354
3 — Deposit for exchange.357

Title 4— Loan 358

Chap. 1 — Loan for use 358

2 — Loan for exchange . . . 369

3 — Loan of money 359

Title 5— Hiring 361

Chap. 1 — Hiring in general 361

2 — Hiring of real property 362
3 — Hiring of personal
property 363

Tttle 6— Service 364

Chap. 1 — Service with employ-
ment 364

2— Particular employ-
ments 368

3 — Service without em-
ployment 372

Title 7~Carriage 373

Chap. 1— Carriage in general . ..373
2 — Carriage of persons. .374
3 — Carriage of property.374
4 — Carriage of me88ages.378

5 — Common carriers 378

Title 8— Trust 382

Chap. 1— Trust in general 382

2— Trust for the benefit

of third persons 385

TrTLE 9— Agency 388

Chap. 1 — Agency in general 388

2 — Particular agencies. ..392

Title 10— Partnership 396

Chap. 1 — Partnership in general395
2 — General partnership.. 397
3 — Special partnership. .401

Title 11— Insurance 404

Chap, 1 — ^Insurance in general.404

2 — Marine insurance 412

3 — Fire insurance 419

4 — Life and health in-
surance ..419

Title 12— Indemnity 420

13— Guaranty 421

Chap. 1 — Guaranty in general . .421

2— Suretyship 424

TriLB 14— Lien 427

Chap. 1 — Liens in general 427

2 — Mortgage 430

3— Pledge ^ 435

4 — Bottomry 437

5 — Respondentia 438

6— Other liens 439

7 — Stoppage in transit. .440
Title 15 — Negotiable instru-
ments 441

Chap. 1 — Negotiable instru-
ments in general.. 441

2— Bills of exchange 447

3 — Promissory notes 452

4 — Cheques 453

5— Bon(ls,bank notes and
certificates of deposit453
TriLE 16— General provisions.. 463

Table of Contents.

7CXXTX

DIVISION FOURTH,

GENERAL PBOYISIONS APPLICABLE TO PEB-
60N8, PROPERTY AND OBLIGATIONS, OB
TO TWO OF THOSE SUBJECTS.

PAOV

PART 1— Relief. 454

Title 1 — Relief in general 454

2 — Compensatory relief. . .455
Chap. 1 — Damages in general . .455

2 — ^Measure of damages. 456
Title 3 — Specific and preventive

relief 461

Cbap. 1 — General principles.. .461

2— Special relief 464

3 — ^Preventive relief 467

Page.

PART 2— Special relations of

debtor and creditor.465

Title 1— General principles 465

2 — Prandulent instrnments

and transfers 466

3 — Assignments for the
benefit of creditors. .467

PART 3— Nuisance 470

Title 1 — General principles 470

2 — Public nuisances 471

3— Private nuisances 471

PART 4 — Maxims of jurispru-
dence 472

5 — Definition and gener-
al provisions 473

CODE OF CIVIL PROCEDURE.

Paox.

General definitions and provi-
sions 477

PART 1 — Courts of justice and

their jurisdiction . .479

Chap. 1 — Of the courts in gen

eral 479

2 — Of the supreme court. 479
3— Of the district court . .481
4 — Of probate courts and
courts of justices of
the peace 481

PART 2— Civil actions 482

Chap. 5 — Form of civil actions. 482
6 — Time of commencing

actions 482

7 — Parties to civil action8488
8 — Of the place of trial of

civil actions 491

9 — Manner of commenc-
ing civil actions. . .492
10 — Of pleadings in civil

actions 497

11 — Of the provisional re-
medies in civil ac-
tions 503

12— Of the trial and judg-

ment in civil action6518
l3 — Of the execution of the
judgment i n civil ac
tions 531

Pack.

Chap. 14 — Proceedings supple-
mentary to the exe-
cution 543

15 — Of the costs and dis-
bursements in civil
actions 546

16 — Of appeals in civil ac-
tions 549

17 — Proceedings against
joint debtors, heirs,
devisees, legatees,
and tenants hold-
ing under a judg-
ment debtor 553

18 — Ofler of the defendant
to compromise the
whole or a part of
the action 554

19 — Admission or inspec-
tion of writings. . .555

20 — Examination of par-
ties 565

21 — Witnesses and evi-
dence 556

22 — Motions and orders. 565

23 — Notices and filings and
service of papers. 565

24--J)uties of sheriffB and

coroners 567

25 — Miscellaneous provi-
sions 567

XL

Table of Contents.

Page.

26— Actions in place of
scire facias, quo war-
ranto, and of infor-
mation in the na-
ture of quo warrantoE)68
•Action for the parti-
tion of real property 570
Poreclogure of mort-
gages 578

Actions to determine
conflicting claims to
real property, and
other actions con-
cerning real estate. 584
30 — Action for nuisance,
waste, and willful
trespass on real
property 586

27

28-
29-

Pace.

31 — Action to enforce me-
chanics' liens 586

32 — Action to foreclose

liens on chattels. ..589

33~Damages for injuries
to persons and prop-
erty 590

PART 3— Special proceeding of

a civil nature 591

Chap. 34 — Certiorari,mandamus

and prohibitions. .591
35 — Summar}' proceed! ngs595
36— Change of names of

persons and places598

37— Of bastards 599

38— Herd law 600

39— Mill dam3 and mills. 601

PROBATE CODE.

Pack.

TrrLE 1 — Proceedings in probate

court 604

Chap. 1— Jurisdiction 604

2— Probate of wills ...... 607

3 — Executors and admin-
istrators,their letters,
bonds, removals and

suspensions . . *. 613

4— Of the inventory and
collection of the ef-
fects of decedents. ..623
5— Of the homestead,and
of the allotment of
personal property. .626
0— Of claims against the

estate 628

7__0f sales and convey-
ances of property of
decedents 633

8— Of the powers and du-
ties of executors and
administrators, and
of the management

of estates 642

9 — Of the conveyance of
real estate by execu-
tors and administra-
tors in certain cases644

10 — Of accounts rendered
by executors and ad-
ministrators, and of
the payment of debts645

11 — Of the partition,distri-
bution, and final set-
tlement of estates. ..651

12 — Of orders,decree8,pro-
cess,minutes,records,
trials and appeals. .657

13 — Of guardian and ward663

JUSTICES' CODE.

ClIAPTKR.

Paoe.

1. Civil proceeding in jus-

tices' courts, . . V 6*73

2. Criminal proceeding in

CiiArTEn. Pagk.

justices' courts 689

3. Justices' quarterly report
to county board 694

Table of Contents.

XLI

PENAL CODE.

Cbaptir. Page.

1. Preliminary provisions. .695

2. Persons liable to punish-

ment 696

3. Parties to crimes 698

4. Crimes against religion

and conscience 693

5. Crimes against the elec-

tive franchise 701

6. Crimes by and against the

executive power of the
territory 706

7. Crimes against the legis-

lative power 708

8. Crimes against public jus-

tice, bribery, &c . . .710

9. Rescues 712

10. Escapes and aiding there-

in 712

11. Forging, stealing, mutila-

ting and falsifying judi-
cial and public records.714

12. Perjury and subordina-

tion of perjury 714

13. Falsifying evidence 716

14. Other offenses against

public justice 716

15. Conspiracy 723

16. Crimes against the person724

17. Homicide : 725

18. Maiming 728

19. Kidnapping 729

20. Attempts to kill 730

21. Robbery 731

22. Assaults with intent to

commit felony other
than assault with in-
tent to kill 732

23. Duels and challenges. ..732

24. Assault and battery 733

25. Libel 734

26. Rape, abduction, carnal

abuse of children, and
seduction 735

27. Adultery 737

28. Abandonment and neglect

of children 737

29. Abortions and concealing

death of infant 738

30. Child stealing 738

31. Bigamy, incest and the

crime against nature. ..738

CUAPTBK. PaOB

32. Violating sepulture and

the remains of the dead.739

33. Indecent exposure, obscene

exhibitions, books and
prints, and bawdy and
disorderly houses 742

34. Lotteries 743

35. Gaming 746

36. Pawnbrokers 748

37. Other injuries to persons. .748

38. Crimes against the public

health and safety 762

39. Crimes against the public

peace 757

40. Crim^^s against the revenue

and property of the ter-
ritory 760

41. Arson 762

42. Burglary and house break-

'. 764

ing

43. Forgery and counterfeit-

ing 766

44. Larceny 772

45. Embezzlement 774

46. Extortion 775

47. False personation, &c 776

48. Fraudulently fitting out

and destroying vessels. .778

49. Fraudulent destruction of

property insured 778

50. False weights 779

52. Fraudulent insolvencies. . .779

53. Frauds in the sale of pas-

sage tickets 784

54. Fraudulent issue of docu-

ments of titles to merch-
andise 787

55. Malicious injuries to rail-

roads, highways, bridges
and telegraphs 788

56. Malicious mischief .789

57. Miscellaneous crimes 793

58. General provisions 796

59. To protect the citizens of

Dakota Territory, and
elevate the standing of
the medical profession .. 802

60. To regulate the time for

burning prairies 883

XLII

Table of Contents.

CODE OF CRIMINAL PROCEDURE.

Page.

Preliminary provisions 805

Title 1- -Courts having jurisdic-
tion in criminal ac-
tions 806

2 — The prevention of pub-
lic offenses 807

Chap. l~Lawful resistance 807

2 — Intervention of the offi-
cers of justice 808

3 — Security to keep the
peace 808

4r— Police in cities, and
their attendance at
exposed places 809

5~Suppre8sion of riots. .810
Title 3— Judicial proceedings

for the removal of

public officers 811

Chap. 1— The removal of civil

officers 811

Title 4 — Proceedings in criminal

actions prosecuted
by indictment, to the
commitment I inclu-
sive 813

Chap. l~Local jurisdiction of

public offenses -..-.-. 813

2 — Time of commencing
criminal actions 816

3— The information 816

4 — The warrant of arrest. 816

5 — Arrest, by whom and
how made 819

6 — Retaking after an es-
cape or rescue 820

7 — Examination of the
case and discharge
of the defendant, or
holding him to an-
swer 821

Title 5 — Proceedings after com-
mitment and before

indictment 824

Chap. 1 — Preliminary provis-
ions 824

2— Formation of the grand
jury 824

3— Powers and duties of a
grand jury 826

4— Presentment and pro-
ceedings thereon ... . .829

Title 6-
Chap. 1

■The indictment 830

-Finding and presenta-
tion of the indict-
ment 830

2 — ^Rules of pleading and
form of the indict-
ment 830

Title 7 — Pleadings and proceed-
ings after indict-
ment and before the
commencement of

the trial. 834

-The arraignment of the

defendant 834

-Setting aside the in-
dictment 836

-Demurrer 837

-Plea 838

-Removal of the action

before trial 839

-Mode of trial 840

-Formation of the trial

jury 841

-Postponement of the
trial 842

Chap. 1

2

3-
4-
5-

6-

7-

Chap. 7-

TlTLE 8--

Proceediugs after the
commencement of the
trial and before judg-
ment 843

-Challenging the jury. . 843

-The trial 847

-Conduct of the jury af-
ter the cause is sub-
mitted to them 852

-The verdict. 853

-Bills of exception 855

-New trials 857

-Arrest of judgment. . .857

Title 9 — Judgment and execut'n.858

-The judgment 858

The execution 860

-Writ of error 863

Chap. 1
2
3

4-
5-
6-

7-

Chap. 1—
2-

Title 10-

Chap. 1 -Writs of error,when al-
lowed and how taken
and the effect thereofJ^63
2 — Dismissing the writ for

irregularity 865

3 — Argument of the writ. 865
4 — ^Judgment in supreme
court :.866

Table of Contents.

XLIII

Paok.

Title 11— Miscellaneous proceed-
ings 867

Chap, l~Compelling the attend-
ance of witness 867

2 — Inquiry into the insau-
iiy of the defendant
before trial or after
conviction. 869

3 — Compromising misde-
meanors by leave of
the court 870

4 — ^Proceedings against
corporations 871

5— Entitling affidavits.. . .872

6 — ^Errors and mistakes. .
in pleadings or other
proceedings 872

7 -Disposal of property
stolen or embezzled . .872

8 — Reprieves, commuta-
tions and pardons. . .873

Pagb.

9— Bail 874

10 — Search warrants 87fi

11 — ^Proceedings against

fugitives from ju8tice878
12 — Dismissal of the action
before or after indict-
ment for want of
prosecution or other-
wise 879

13 — General provisions
and definitions ap-
plicable to this code.88<)
14 — Regfulation of county

jails 881

16— Prisons and imprison-
ment for offenses 884

16— Convicts 89<)

17 — Habeas corpus 89'2

An Act declaring certain acts

repealed and for oth-
er purposes 898

REVISED CODES

OF THE

TEMITORY OF DAKOTA.

POLITICAL CODE

(H AFTER I.

Seat of GovoriiirLent.

AN ACT to Establish a Political Code for the Territory of Dakota.

§ 1. Seat of government located at yankton.] Be it enacted by the
kgislative assembly of the territory of Dakota, The seat of government
is hereby located and established in the city of Yankton, in the county
of Yankton.

CHAPTEll II.

Lregislatiire.

§ 1. Members elected biennially for term of two years.] The
members of both branches of the legislative assembly shall be elected
at the general election in 1878, and biennially thereafter, and shall hold
their resi)ective offices for the term of two years.

§ 2. Sessions, when and where held.] The regular session of the
legislative assembly shall commence on the second Tuesday of Janu-
ary, next ensuing the election of its members, and shall be held at the

2 Legislature. Chapter 2,

seat of government, unless the governor shall convene them at some
other place in times of pestilence or public danger.

§ 3. Privilege of members.] No member or officer of the council
or house of representatives, while in actual attendance upon the duties
of his office, shall be liable to arrest upon civil process.

§ 4. Punishment by each house for offenses.] Each house may
punish, as a contempt, by imprisonment, a breach of its privileges, or
the privileges of its members; but only for one or more of the follow-
ing offenses, to wit: 1. Knowingly arresting a member or •oflBcer of
the house, or procuring such member or officer to be arrested, in viola-
tion of his privileges from arrest. 2. That of disorderly conduct in
the immediate view of the house, and directly tending to interrupt its
proceedings. 3. That of refusing to attend to be examined as a wit-
ness, either before the house, or a committee, or before any person
authorized to take testimony in legislative proceedings. 4. That of
giving or offering a bribe to a member, or of attempting, by menace,
or other corrupt means or device, directly or indirectly, to control or
influence a member in giving his vote, or to prevent his giving the
same; but the term of imprisonment which such house may impose
for any contempt specified in this section, shall not extend beyond the
same session of the legislature.

§ 5. Contempt misdemeanor.] Every person who shall be guilty of
any contempt specified in the preceding section, shall, also, be deemed

fuilty of a misdemeanor, and, on conviction thereof, shall be punished
y imprisonment not exceeding six months, or by fine not exceeding
five hundred dollai's, or both such fine and imprisonment, at the dis-
cretion of the court.

§ 6. Administering oath to members and officers.) The speaker
of the house of representatives, and the president of the council, the
governor, or any of the justices of the supreme court are authorized
to administer the oath of office to the members and officers of the
respective houses.

§ 7. Oath of Members.] The members shall be required to take
and subscribe the following oath :

You do solemnly swear that you will support the constitution of the United States and tli^
organic act of the IPerritory of Dakota, and that as a member of this house of representatives,
(or this council, as the case may be,) you will hot propose or assent to any bill, vote, or reso-
lution which shall appear to you injurious to the people, nor do or consentto any act or thing
whatever that shall liave a tendency to lessen or abridge their rights and privileges as declared
by the constitution of the United States, and the organic act of this Territory, but will, in all
tilings, conduct yourself as a faithful, honest representative and guardian of the people, accord-
ing to the best of your judgment and abilities. So help you God.

§ 8. Committee may administer oath.] Any member of the council
or house of representatives, while acting as a committee of the house
of which he is a member, shall have authority to administer oaths to
such persons as shall be examined before the committee of which he
is a member.

§ 9. Contested seats.] In case the right of any person to a seat
in either house of the legislative assembly shall be contested, the right
of such person to a seat as aforesaid, shall be determined by the house
in which he claims such seat as a member; and each house shall, in all
cases, be the judge of the qualifications of its members.

§ 10. Officers of respective houses.] The officers of the respective

Chapter 2. Legislaturs. 3

houses shall consist of a president of the council, who must be a mem-
ber of that body; a speaker of the house, who must be a member of
that body; and for each house one chief clerk, oije assistant clerk, one
engrossing clerk, one enrolling clerk, one sergeant-at-arms, one door-
keeper, one messenger, and one watchman.

§ 11. Officers elected viva voce — oath.] The said oflBcers shall
be elected rira race, by the members of each house respectively, at such
time, after the meeting of said house, as the members thereof shall
see proper, and shall be required to take and subscribe the same oath
a« is provided for other civil oflBcers; but neither house shall transact
any business other than the election or appointment of oflBcers, until
said oflBcers are elected or appointed pro tern., on motion.

§ 12. Chief clerks to keep journals, &c.] It shall be the duty of
the chief clerk of the council and chief clerk of the house of represen-
tatives, to keep correct journals of the proceedings of their respective
houses; to have the custody of all records, accounts, and other papers
committed to them, and at the close of each session of the legislative
assembly, shall deposit for safe keeping, in the oflBce of the secretary
of the territory, all books, bills, documents, resolutions, and papers in
the possession of the legislature, correctly labeled, folded and classified,
and, generally, to perform such duties as shall be assigned them by
their respective houses: Provided ^ The journals of the two houses need
not be deposited, as above provided, until the expiration of forty days
after the adjournment of the legislative assembly.

§ 13. Chief clerks to prepare and index journals, &o.] It shall
be the duty of the chief clerk of the council and the chief clerk of the
house, at the close of each session, to prepare for the press and super-
intend the publication of the journals of the proceedings of tneir
respective houses, and to aflBx an index thereto; and to transcribe into
a book kept for that purpose, the documents accompanying the message
of the governor, or by him sent to either house, other than 'those en-
tered on the journal, or the documents reported to either branch of the
legislative assembly by any public oflBcer of the territory,.in pursuance
of law, for which service they shall be allowed such compensation as
the legislature shall from time to time determine; but in no event to
be less than their regular per diem, for the time actually employed in
performing said labor.

§ 14. Chief clerks to make roll of members.] It shall be the duty
of the said chief clerks, at the opening of every session of the legisla-
tive assembly, to make a correct roll of the members of their houses,
respectively, to whom certificates of election have been issued by the
proi)er oflBcers, which certificates shall be filed by said secretary and
chief clerk.

§ 15. Sessions called to order by chief clerks of last houses.]
In all cases, the said chief clerks, serving at the close of a session,
shall remain in oflBce until the organization of the next regular session
of the legislature, and at twelve o clock, meridian, on the day appointed
by law for the meeting of the legislative assembly, the said chiet clerks,
or, in the absence of either, then some member or other person
appointed by the members present, shall call the members of their
respective houses so enrolled to order, when the members may proceed
to the election of the necessary oflScers. The term of oflace of all

r

4 The Statutes. Chapter 3.

officers of the councir aud house of representatives shall ' expire with
the close of the session at Which they were elected, except the chief
clerk of the council ^n^ the chief clerk of the- house, for the purposes
herein designated. i * . - .

§ 16. Compensation of^ di-^t'ncERS how certified.] The compensa-
tion prescribed hy law f6r the officers of the council shall be certified
by the president thereof, and attested by the chief clerk; and the com-
pensation that may be due to the officers of the house of representii-
tives, shall be certified by the speaker thereof, and attested by the <*hief
cl§rk, which said certificates, when made out as aforesaid, shall be
sufficient evidence to the secretary of the temtory of each person's
claim.

§ 17. Either house may remove officers.] It shall be competent
at any time during a session of the legislative assembly, for either
house, by a vote of a m<ajority, to remove from office, any of the offi-
cers provided for in this chai)ter; but in case of the removal of any
officer by either house, his i)lace shall be supplied by an election, viva
voce; and in all elections under the provisions of this chapter for officers
of either house of the legislative assembly, it shall require a majority
of all the votes cast to determine a choice.

( HAPTEll 111.

'The Statutes.

^ 1. Secretary to procure printing of laws.) The secretary of
the temtory shall procure the printing of one thousand copies of the
general laws, and five hundred of the memorials, private laws, and
resolutions, passed at each session of the legislative assembly, and
have the same separately bound, as follows: Of the general laws, five
hundred copies in law sheep ; two hundred and fifty copies in half
binding, wiui leather backs and corners; and the remaining two hund-
red and fifty copies, and the memorials, private laws and resolutions,
in durable pamphlet form; and they shall all be prefaced by a table of
contents, and shall contain a full and correct index.

§ 2. Secretary to arrange and correct laws.] In arranging the
hiws, memorials, and resolutions for publication, the secretary afore-
said is herel)y authorized to make such corrections in the orthog-
raphy, grammatical construction, and punctuation of the same, as in
his judgment shall be deemed essential : Provided, That when any
words or clauses shall be inserted, the same shall be inclosed in
brackets.

§ 3. Distribution of laws.] The secretary aforesaid is hereby
authorized to distribute 'the laws^ after jbhey shall have been printed
and bound, in the manner hereinafter specified.^.9b ^i- ^*^\
V.'^IJ'.^Vri^ § ^' ^^ WHOM AND HOW DISTRIBUTED.] The followiug naniecT oflficers

of this temtory, and of the counties therein, and none others, shall be

Chapter 3. The Statutes. 5

entitled to receive, without cost to the person holdtng such office, one
copy each of the bound volumes of laws enacted by the legislative
assembly of this territory, to wit: T^^^ chief justice of the supreme
court of the district of Dakota; each associate justice of said supreme
court; each clerk of the district court.; the united States attorney
for the district of Dakota; the United States marshal for the district
i)f Dakota; each United States commissioner appointed by any judge
of this territory; the governor of the territory; the secretary of the
territory; the auditor; the treasurer; the superintendent oi public
instruction; the superintendent of immigration; the librarian of the
historical society of Dakota territory; each distri(!t attorney; ea(*h
judge of the probate court; each sheriff; each register of deeds; each
county clerk ; each justice of the peace; each coroner; each county
superintendent of public schools; each assessor; each chairman of
the board of county commissioners; and one copy to each library asso-
ciation organized for the benefit of the public in any county or town
in this territory; and one to each member of the legislative assemWy^
of the session of which he was a member.

§ 5. Copies to certain officers of united states.] It is hereby
made the duty of the secretary of this territory, whenever any volumes
of the laws of this territory shall come into his hands, to transmit to
each federal and territorial officer and United States commissioner,
clerks of the United States district and supreme court, and each dis-
trict attorney, one volume of such laws, prepaying the postage thereon
if sent by mail ; and the said secretary shall state an account of his
disbursements for postage or carriage of such volumes so sent by him,
to the auditor of the territory, who is hereby authorized to audit- the
same if, in his judgment, it be just and coxTCct ; and when so audited,
the treasurer of the territory is authorized to pay the same out of any
money in his hands not otherwise appropriated. . .

§6. County officers — how supplied.] The county clerks of the
several counties of this territory, shall, on the first Monday of Feb-
ruary next succeeding the time when any session of the legislative
assembly shall be held, make a requisition ujjon the secretary of
the territory for as many copies of the laws of said session as may be
required to supply one copy to each county, district, or township office
entitled to the same, and shall forward said requisition to said secre-
tary, who shall thereupon, or as soon thei-eafter as he shall receive the
said volumes of laws, forward the number of copies called for by said
requisition, to said clerk, either by express, or in any other secure
manner, the charges of said carriage to be borne by the county receiv-
ing such laws. The county clerk, upon receiving the laws, shall dis-
tribute them to the several officers entitled by law to the same, taking,
in every instance, the official receipt of the officer to whom they are
delivered, said receipt to describe the date of the volume so delivered,
and to be thereafter filed in the office of said county clerk.

§ 7. Officers to deliver laws to successors.] That whenever any
person shall be elected to fill any of the countv, town, or district offices
mentioned in section one of this act, it shall be such person's duty,
before taJj:ing possession of the said office, to procure from the county
clerk of their county a copy of the receipt filed with said clerk by the
outgoing officer for any volumes of the laws of this territory, which

6 The Statutes. Chapter 3.

copy of said receipt the person so elected shall exhibit to his predeces-
sor in office at the time when he shall assume the duties of his office,
and shall require from his predecessor all the volumes of laws which
he may have received, as shown by the receipt on file with the county
clerk ; and it shall be the duty of the said officer, after having received
from his predecessor the volumes of laws as heretofore specifiea, to make
out duplicate receipts of the same, one of said receipts to be given to
his predecessor in office, and the other to be forthwith transmitted to
the county clerk of the county, who is hereby required to file the same
in his office.

§ 8. Offense for failure to deliver statutes to successor.] In
case any person holding an office in this territory, or in any county,
township, or district thereof, shall, upon relinquishing said office to his
successor, fail or refuse to deliver over to his successor in office all the
volumes of laws that have come into his possession by virtue of holding
such office, such person so failing or refusing shall be liable, upon con-
viction, to a fine of fifty dollars, or to imprisonment in the county jail
not exceeding twenty days, and it is hereby md.de the duty of the
l)ei>5on succeeding to the office of such delinquent to file complaint
against him before a justice of the peace: Provided^ That in case the
[)ei-son so failing or refusing to deliver said volumes of law can show,
to the satisfaction of the justice, that said volumes have been destroyed
ov stolen in a manner for which the said delinquent person should
not be held responsible, then and in that case no penalty shall be
imposed.

§ 9. Lost volijmes of statutes — how supplied.] Whenever any
county, township, or precinct officer entitled to a copy of the laws of
this territory, shall, through the negliBct or refusal of his predecessor
in office to turn such laws over to him, or through loss occasioned by
fire, theft, or other cause for which said person cannot be held responsi-
ble, be without such laws, such person is hereby authorized to make a
written requisition, upon the county clerk of his county, for such
volumes of laws as may be required ; and the said clerk is authorized
to proceed in the manner hereinbefore provided for the general distri-
bution to supply the said requisition : Provided, That the secretary
shall be authorized to charge the county from wnich such requisition
is made the cost, with ten per cent, added, for each and every additional
volume so furnished, which said amount shall be allowed by the board
of commissioners oi said county, and paid over to the secretary, in
cash, who shall, in turn, pay the same to the territorial treasurer,
taking his official receipt therefor.

§ 10. Secretary to sell statutes.] The secretary of the territoiy
shall sell to any party applying therefor, the volumes of laws of this
territory, for the cost, ana ten per cent, added, per volume, and pay
over to the territorial treasurer all sums so received, taking the official
receipt of said treasurer therefor.

§ 11. Copies of laws for territorial library.] Ten volumes of
the laws of Dakota, passed by each legislative assembly, shall be
placed in the territorial library by the secretary of the territory, and
shall be kept therein for the use of any person visiting said library,
but shall not be loaned or otherwise cusposed of

Chapter 4. Territorial Seal.

CHAPTER IV.

Territorial Seal.

§ 1 . Great seal of the territory.] The following described seal
is hereby declared to be, and is hereby constituted, the great seal of
Dakota territory, to wit : A tree in the open field, the trunk of which
is surrounded by a bundle of rods, bound with three bands; on the
right, plow, anvil, sledge, rake, and fork; on the left, bow, crossed
with three arrows, Indian on horseback, pursuing a buffalo towards
the setting sun ; foliage of the tree arched by half circle of thirteen stars,
surrounded by the motto: "Liberty and Union, one and inseparable,
now and forever"; the words "Great Seal" at the top, and at tlfie
bottom, "Dakota Territory"; on the left "March 2"; on the right,
"1861." Seal two inches and a half in diameter.

CHAPTER V.

Qualification for OfS.ce.

§ 1. Civil officers to qualify.] Except as otherwise specially pro-
vided, all civil officers shall qualify substantially in manner and form
as herein set forth.

§ 2. Certain officers to give bond.] All civil officers, elected by
the people, or appointed by the governor or legislative assembly, or by
any other authority provided by law, except the superintendent of
public instruction, the territorial superintendent, and all members of
the bureau of immigration, stenogi-aphers, county commissioners,
county surveyors, county superintendent of public schools, county
clerks, the officers of the council and house of the legislative assembly,
but including township treasurers, clerks, justices of the peace, and
constables, shall, before entering upon duty, give bond, conditioned
that they will faithfully and impartially discharge the duties of their
office (naming it fully), and render a true account of all moneys,
credits, accounts, and property of any kind that shall come into their
. hands as such officer, and pay over and deliver the same according
to law.

§ 3. Oath op office on back of bond.] Every civil officer who is
required to give bond shall take and subscribe on the back of his bond,
or a paper attached thereto, to be certified by the officer administering
it, an oath that he will support the constitution of the United States,

8 Qualification fob Office. Chapter 5.

and the act organizing this territory, and that he will faithfnlly and
impartially, to the best of his knowledge and. ability, perform all the
dnties of his office (naming it fully), as provided by the condition of
his bond, written within.

§4. Oath on back of commission.] All other civil officers are
required to take and subscribe, on the back of their appointment,
commission, or certificate of election, an oath to support the consti-
tution of the United States, and the act organizing this territory, and
to faithfully and impartially perfonn all the duties of their office
(naming it fully) to tne best of their knowledge and ability.

§ 5. Bonds- HOW approved.) The bonds of all territorial and dis-
trict officers shall be given to the territory, shall be approved by the
governor or one of the justices of the supreme court of the territory,
and shall, together with the oaths of all other such officers, be filed in
the office of the secretary of the territory. The bonds of all county^,
township, and precinct officers shall be given to the county: those of
all county and precinct officeins under the county shall be approved hj
the board of county commissioners, and shall, together with the oaths
of office of all other such officers, be filed with the county clerk, except
fclu^ bond and oath of the register of deeds, which shall be filed with
the (*lerk of the district court for the county or judicial subdivision.
Tlie l>onds of township officers shall be approved by the chairman of
t lie board of supervisors of the township, and shall be filed in the office
of tlie clerk of the district court for the county or judicial subdivision:
and the oaths of all other township officers shall be filed in the office
of the township clerk.
^, 1 4.^ '\19^ § 6. Penal sum of bonds.] The bond of the territorial auditor shall
\\\ ^.^^^ ^^ ^^^ penal sum of one thousand dollars; of the territorial treasurer
l3o " \i|^ ^^ penal sum of five thousand dollars; of clerk of the district court
in the penal sum of one thousand dollars; of the district attorney in
the penal sum of one thousand dollars; of notaries public in the penal
sum of five hundred dollars. The bonds of the county register of deeds,
judges of probate court, sheriffs, coroners, trejusurers, and all assessors,
justices of the peace, and constables, whether of the county or any
township therein, and all township treasurers, shall each 1)0 in a i)enai
sum to be fixed by the board of county commissioners; but that of the
(*.ounty treasurer shall not be in a less penal sun> than four thousand
dollars, except when the totiil amount of taxes to be by him collected
in any year is less than two thousand dollars, then in double the amount
of taxes to be collected: Provided, That in no ciuse sh;>ll the bond of
said county treasurer be less than one thousand dollars. Those of
justi(*>es of the peace shall not be in a less penal sum than three hund-
red dollars each; and those of constables shall not l)e in a less penal
sum than two hundred dolljirs each; and the i^enalty of the bond shall
he uniform within the county for all officers of each class where there
is more than one of a class.

J^ 7. Number of sureties to bond.] Every official bond shall bo
given with at least two sureties, and the bond of the territorial treasurer
shall have at least four sureties, and that of the county tre*asurer at
least three sureties.

§ S. Approval of bond.] The approval shall in all cases be indorsed
upon the bond and signed by the officer approving, or by the chairman

Chapter 5, Qualification fob Office. 9

of the board of county c6mmissioners; but in case the board of county
commissioners or the chairman of the township board of supervisors
should decide a bond presented to them to be insuflBcient, a reasonable
time, not to exceed five days, shall be allowed the oflBcer to supply a
sufficient bond, and either board may takd three days to consider the
approval of any bond. If either board refuse or neglect to ai>prove the
bond of any county officer or township officer elect, he may present the
same to the judge of the district Court and serve notice thereof upon
the board; and due proof of such service being made to the judge at
the time therein named, he shall, unless good cause for delay appear,
proceed to hear and to determine the sufficiency of the bond, and may
approve the same, and such approval shall be in all respects valid.

^ 9. When regular term of office begins.] Except when other-
wise specially provided, the regular term of office for all county, town-
ship, and precinct officers, when elected for a full term, shall commence
on the first Monday of January next succeeding their election; but if
the office to which he was elected be vacant at the time of election,
even if he was not elected to fill a vacancy, he shall forthwith qualify
and enter upon the duties of his. office.

§ 10. When officers shall qualify.] Except where otherwise

specially provided, all territorial, district, county, township, and precinct

officers shall qualify and enter tipon the duties of their office on the

. first Monday of January succeeding their election, or within ten days

thereafter.

§ 11. Office vacant — when.] If any person elected to any office
mentioned in the preceding section shall fail to qualify and enter upon
the duties of such office within the time fixed by law, such office shall
be deemed vacant, and shall be filled by appointment by the authority
provided by law to fill such vacancy: Provided, however, That if there
is a contest for such office, or if the person elected to such office is
prevented or obstructed in anj^ manner from entering upon the duties
of such office, the time prescribed in which he shall qualify and enter
upon the duties of his office shall not govern, and he shall be allowed
twenty days after the day of such decision, or the termination of such
preventing or obstructing cause, in which to qualify.

§ 12. Bonds construed to cover duties.] The bonds and oaths of
all civil officers shall be cpnstrued to cover duties required by law sub-
sequent to giving them; and no official bond shall be void for want of
compliance with the statute, but it shall be valid in law for the matter
contained therein.

§ 13. Re-elected incumbent to account before qualifying.] When
the incumbent of any office is re-elected, he shall qualify as above
required; Imt his bond shall not be approved until he has produced and
fully accounted for all public funds and property iii his control under
color of his office during the expiring term, to the person or authority
to whom he shquld account, ana the fact and date of such satisfactory
exhibit shall be indorsed upon the new bond before its approval.

§ 14. All officers must deliver public property to successor.]
Every officer elected or appointed under the laws of the territory, on
going out of office at the expiration of his term thereof, shall deliver
to his successor in office all i)ublic moneys, books, records, accounts,
papers, and documents in his possession belonging or apj)ertaining to
such office.

10 Deputies. Chapter 6.

CHAPTER VI.

Deputies.

§ 1. Certain officers may appoint a deputy.] The territorial
auditor, treasurer and superintendent of public instruction, the county
treasurer, sheriff, register of deeds, surveyor, clerk of the district court,
and assessor may each appoint a deputy, for whose acts as such he shall
be responsible; and each officer required to give bond may require a
bond from his deputy in a penal sum not greater than half the penal
sum of his own bond, and such bond may be retained by the officer for
his own protection; and the appointment must be in writing, and shall
be revocable in writing at the pleasure of the principal, and all such
appointments and revocations shall be filed as, and where, required for
the bond and oath of the principal.

§ 2. Who may appoint additional deputies.] The county assessor
may appoint a deputy in each government township, or any number of
deputies; and the sheriff may appoint such number of deputies a« he
may deem necessary; and the district attorney may appoint a deputy
in each organized county in which a district court is, or may be, directed
to be held. «

§ 3. Oath of deputy.] Each deputy shall take and subscribe the
same oath as his principal (naming his deputyship), which shall be
indorsed upon and filed with his certificate of appointment.

§ 4, Certain deputies forbidden.] No territorial officer can appoint
as his deputy any other tenitorial or any district officer, nor can a ter-
ritorial treasurer appoint as his deputy any county treasurer, judge of
the probate court, register of deeds, sheriff, or county commissioner;
nor can either the clerk of the district court, the register of deeds, or
sheriff, appoint as his deputy either of the others or their deputies.

CHAPTER VIL

Territorial Auditor.

§ 1. Governor to appoint auditor — office at capital.] There shall
be nominated by the governor, and by and with the consent of the
council, shall be appointed a territorial auditor, who shall hold his
office for the term of two years, and until his successor is appointed
and qualified. He shall keep his office at the capital of the territory.

§ 2. All accounts to be audited.] All accounts and claims against
the territory, which shall be by law directed to be paid out of the

Chapter!, Territorial Auditor. 11

treasury thereof, shall be presented to Ihe auditor, who shall examine
and adjust the same, and, for the sums which shall be found due from
the territory, shall issue warrants, payable at . the territorial treasury,
which shall be numbered consecutively, and ea<*h shall specify the date
of its issue and the name of the pei"son to whom payable; and the
number, date of issue, and name of the person to whom payable, of each
warrant, and corresponding thereto, shall be entered upon a stub for
each warrant separately, and these stubs shall be carefully preserved
by the auditor in his office.

§ 3. Fractional warrants authorized.] When the amount due from
the territory to any one person is ascertained and adjusted, the auditor,
if requested, shall divide the* sum into amounts of from one to twenty
dollars, to suit the convenience of the person entitled thereto, and shall
issue warrants for the several amounts sepamtely, into which the sum
shall be so divided, and equal to the whole amount thereof; and any
warrant already issued that may be returned by the holder thereof to
the auditor, he may cancel, and issue in lieu thereof small warrants, as
herein provided, equal in the aggregate to the face value of the war-
rants canceled.

§ 4. Redemption OF warrants.] For the redemption of all warrants
issued in conformity with the provisions of this cliapter, the credit of
the territory is hereby pledged.

§ 5. Warrants to be numbered.] The auditor shall enter, in pro-
gressive order, in a book or books to be provided by him for that pur-
pose, the number of each warrant by him issued, the amount thereof,
the date of its issue, and the name of the person to whom issued, and
the fund on which said warrant is drawn.

§ 6. Method of auditor's accounts.] The auditor shall make and
keep in his office, in suitable books, to be procured at the expense of
the territory, fair and accurate accounts showing the debits aud cre(?its
of each separate fund, or appropriation, by giving such funds credit for
the full amount apf)ropriated by law, and by charging to such funds
severally the amounts drawn against them from time to time; and he
shall also keep records of all such public accounts and other docu-
ments as have been or may be by law made returnable to his office,
and shall keep a file in progressive order of all receipts and warrants
returned as redeemed from the temtorial treasurer, and other vouch-
ers relative to the business of his office.

§7. Biennial report of auditor.] The auditor shall submit a
biennial report to the governor of the territory on or. before the 15th
day of December preceding each regular session of the legislative
assembly, which report shall show for the preceding fiscal term, ending
on the §K)th day of November:

1. A statement of date, number, and amount of each warrant, the
person in whose favor, and on what fund each warrant was drawn.

2. The total amount of warrants redeemed and returned to him
by the territorial treasurer.

3. A statement of the accounts of the several funds and appropria-
tions, which shall show the sums appropriated for each fund, the
amount of warrants on each fund, and tne unexpended balances of the
same.

4. Such remarks on the finances of the territory as he shall deem

12 Territorial Auditor. Chapter 7.

proper, which report shall be transmitted by the governor to the legis-
lative assembly.

§ 8. Auditor to transmit to treasurer statement of assess-
ments.] The auditor shall transmit to the territorial treasurer a state-
ment of the assessments of each county of the territory as soon as
practicable after the abstracts of such statements shall be receiv^ed
from the county clerks of the several counties.

§ 9. Legislative inspection of books.] Whenever recj[uired, he
shall submit his books, accounts, and vouchers to the inspection of the
legislative assembly, or any committee thereof, appointed for that
purpose.

§ 10. List of lands becoming taxable.] He shall transmit to the
register of deeds of each county, on or before the first day of March in
each year, a list of lands within such county which shall have become
subject to taxation within the preceding year, agreeable to the inform-
ation by him received from the land office or omces in the territory.

§ 11. Transmit forms and instruction to county clerks.] He
shall from time to time prepare and transmit to the county clerk of
each county such general forms and instructions, in conformity with
the laws in force, as, in his opinion, may be necessary to secure
uniformity in assessing, charging, and collecting, and accounting for
the public revenue; and assessors and treasurers shall observe such
forms and instructions.

§ 12. May remit tax penalties.] The auditor is hereby author-
ized to remit any penalty for the non-payment of taxes when satisfied
that the same is improperly charged, or that such penalty occurred in
consequence of the negligence or error of any omcer required to do
any duty relative to the levy and collection of such taxes; and may
from time to time correct all errors which he shall discover in the
duplicate of taxes assessed in any county.

§ 13. Statement op railroad assessments.] The auditor shall, on
or before the first Monday in September in each year, transmit to the
territorial treasurer a statement of the assessments made by him on
the returns of the property of any railroad or other corporation
required by law to make such returns, and on which the taxes cannot
be properly levied and collected by any organized county, or on which
it becomes the duty of the territorial treasurer to levy and collect the
taxes.

§ 14. Certain expenses paid out of contingent fund.] The
expense of procuring books, directed by this act to be procured, and
the copies of entries, surveys, and other documents from the land
offices, and all other contingent expenses of his office, shall be paid by
the auditor out of the contingent fund appropriated for the use of said
office.

§ 15. Proceedings on default of officers to pay over revenue.]
If any officer concerned in the collection of the territorial revenue
shall fail to collect, to make proper return, to make settlement, or t.o
pay over all the moneys by him received and belonging to the territory
at the time and in the manner required by law, the auditor of the ter-
ritory shall, after the expiration oi fifteen days next after the expira-
tion of the time within w^hich such are by law required to be performed,
transmit to the county clerk of the proper county a statement of the

Chapters. Territorial Treasurer, 13

sum claimed by the territory from such delinquent officer, with direc-
tions for such county clerk to proceed against such delinquent officer
and his securities in the manner prescribed by law: Provided, That
when the auditor of the territory shall be satisfied that such default
results from some inevitable accident, and not from the negligence of
such officer, he may, at his discretion, postpone the instructions for
bringing suit for any time not exceeding isixty days.

§ 16. May administer certain oaths.) The auditor is authorized
to administer an oath to accountants and witnesses, in sup^)ort of the
justice of such accounts as may be exhibited to him for liquidation,
and to certify the same accordingly.

CHAPTEK VIll.

Territorial Treasurer.

§ I. Territorial treasurer appointed by governor.] There shall
be nominated by the governor, and by and with the consent of the
council, shall be appointed a territorial treasurer, who shall hold his
office for the term oi two years and until his successor is appointed and
qualified.

§ 2. Charge and payment of public funds.] He shall have charge
of, and safely keep all public moneys which shall be paid into the ter-
ritorial treasury, and pay out the same as directed by law, and perform
all such other duties as now are, or may hereafter be, required of him
by law.

§ 3. Accounts of receipts and payments.] He shall keep an
accurate account of the receipts and disbursements of the treasury, in
books provided for that purpose at the expense of the territory, in
which ne shall specify the names of persons from whom received, to
whom paid, on what account the same is received or paid out, and the
time OI such receipt or payment.

§ 4. Account with each county.1 He shall also keej) an account
with each organized county of the territory, in which each county
shall be charged with the amount of the tax levied, according to the
statements oir assessment and levy transmitted to him by the terri-
torial auditor, and credited by the amounts received from the county
treasurer of such counties.

§ 5. Warrants receivable for public dues.] He shall receive
in payment for public dues the warrants drawn by the auditor of the
territory, in conformity with law, or redeem the same, if there be
money in the treasury appropriated for tnat puii)ose, and on redeem-
ing such warrant, or receiving the same in payment, he shall cause
the person presenting such warrant to endorse the same; and the
treasurer shall write on the face of the same, *' redeemed," and shall
enter in his book, in separate columns, the number of such warrant,

14 Territorial Treasurer. Chapter 8,

its date, amount, and the name of the person to whom payable, the
date of payment and the amount of interest, if any, paid thereon.

§ 6. Indorsements of warrants not paid.] When any warrant
shall be presented to the treasurer for redemption, and there shall be
no funds in the treasury appropriated for that purpose, the treas-
urer of the territory shall indorse thereon the date of its present<ition,
with his signature thereto, and whenever there shall be funds in the
treasury for the redemption of warrants so presented and indorsed, the
treasurer shall give notice of the fact in some newspaper published at
the seat of government, and at the expiration of thirty days after the
date of such notice, the interest on such warrant shall cease.

§ 7. Redeemed warrants returned to auditor.] He shall, on the
last (lay of March, June, September, and November, deposit in the
office of fhe auditor of the territory, all warrants by him redeemed or
received in payment at the treasury, and take the auditor's receipt
therefor.

§ S. Biennial report to governor.] He shall submit to the gov-
ernor, on or before the 1 5th day of December preceding each regular
session of the legislative assembly, a report containing a full and true
exhibit of the state of the public accounts and funds, the amount by him
received, the amount paid out during the preceding fiscal term, end-
ing on the 30th day of November, and the balance remaining in the
treasury, together with an exhibit of the several organized counties
as provided in section 4 of this chapter, which report shall, by the gov-
ernor, be transmitted to the legislative assembly.

§ 9. Legislative inspection of accounts.] He shall, as often as
required, submit his books, accounts, vouchers, and the funds in the
treasury, to the inspectix)n of either branch of the legislative assembly,
or any committee thereof, appointed for that purpose.

§ 10. Must not purchase warrants or accounts.] He shall, in no
ca^sC; purchase or receive any warrant redeemable at the treasury, or
any audited account, at a less value than is expressed therein; nor
shall he receive any fee or reward, aside from his annual salary, for
transacting any business connected with the duties of his office.

§ 11. Treasurer to assess and collect certain railroad taxes.]
He shall assess upon and collect the territorial tax from all railroads
where the same pass through any unorganized county, or where, for
any cause, the said tax shall not have been assessed and collected on
any railroad ; and such tax may be assessed and collected at any time
from the 1st day of January to the 31st day of December, and shall
receive for his services five per centum of such taxes so assessed and
collected, and shall transmit to the county treasurer, of any county in
which such tax shall have been collected, a statement of the amount
of su(*.h tax, which shall be subject to the order of the said county
treasurer.

§ 12. Responsibility for delinquencies.] If, in any instance, the
treasurer shall neglect to call to account any delinquents, whereby the
public revenue may suffer loss, he shall be held and deemed account-
able for the sums due by such delinquents, to all intents and purposes,
the same as if the funds had actually been paid into his office.

Chapters 9-10. Territorial Library — Terms Supreme Court. 15

CHAPTER IX.

Territorial Library.

§ I. Secretary's custody of library.] The territorial library,
including statutes, reports, documents, and miscellaneous books of
every nature and descnption belonging to said library, is hereby placed
in the care and custody of the secretary of the territory, whose duty
it shall be to provide a room tor said library, and keep the same open
at all reasonable hours for the benefit of the public; to label and
arrange the books in a convenient manner; to collect in all books now
out: and to let no book go out without first taking the receipt of the
person to whom such book is delivered.

§ 2. Appropriation for same.] There is hereby appropriated the
sum of tw^o hundred and fifty dollars annually out oi the territorial
treasury, to be paid out of any money not otherwise appropriated, to
the secretary of the territory, to be disbursed by him for the care and
custody of said library and for rent of room.

§ 3. Auditing of accounts.] It shall be the duty of the territorial
auditor to audit all accounts presented to him by the secretary of the
territory, when properly verified, and draw his warrants on the terri-
torial treasurer for the same, for all money paid out by the secretary,
as express charges or freight, on books donated and sent to the terri-
torial library from abroad.

CHAPTER

Terms of Supreme Court.

§ 1. Two terms annually at YANKTON.] There shall be held, at
Yankton, two terms annually of the supreme court, commencing the
fourth Tuesday of June and the second Tuesday of December, dl.v-y ^. ci ,i /

16 Assignment of Judges op Supreme Court. Chapter 11.

CHAPTER XI.

Assignment of Judges of Supreme Court.

§ 1. Assignment of judges.] The justices of the supreme court
are assigned as follows:

1. The Honorable G. G. Bennett, associate justice, and his successors
in office, to the first judicial district.

2. The 'Honorable P. C. Shannon, chief justice, and his successors in
office, to the second judicial district.

3. The Honorable A. H. Barnes, associate justice, and his successors
in office, to the third judicial district.

§ 2. Justices hold court in any district.] The justices of the
supreme court may also, at their pleasure, hold terms of court in any
of the several judicial districts, other than those to which they are
herein assigned.

§ 3. Duty of justices to hold court in other districts.] It is
hereby made the duty of the several judges, Avhen not otherwise
officially engaged, to hold terms of court in districts other than those
to which they are assigned, and to hear and determine all matters at
chambers from such other districts, when the judge of such other dis-
trict shall be, from any cause whatever, unable to act; or, in case of
temporary vacancy.

, CHAPTER

Boundaries of Judicial Districts.

§ 1. Boundaries judicial districts -contingent change.] The
territory is divided into three judicial districts, as follows:

8a J*?i ^ \AH 1. The counties of Clay, Union, Lincoln, Minnehaha, McCook, Moody,

Lake, Brookings, Wood, Duel, Hamlin, Clark, Grant, Greeley, and
Stone, and the Sisseton and Wahpeton Indian reservations constitute
the first district. ^

5lL,'iooj..v.\ji't 2w All that portion bounded and described as follows, viz: Com-
mencing at the northeast corner of the Sisseton and Wahpeton Indian
reservation; thence along the north line of said reservation to the
northwest corner thereof; thence southerly along the western bound-
ary of said reservation to its intersection with the 46th parallel of
north latitude; thence west along said parallel to the right bank of
the Missouri river at low-water mark; thence down along said right

Chapter 12. Boundaries op Judicial Districts. 17

bank at low-water mark to the mouth of Grand river; thence up the
center of the main channel of Grand river to the mouth of Ree river;
thence up the main channel of Ree river to its point of intersection
with the one hundred anfl .thi^tj m^ri^ian; pf west longitude; iihence
due west to the Little Missouri river; thence up the main channel of
the Little Missouri river to the western boundary of the territoiy;
thence norths alon^ the western boundary of. the territory to the north-
ern boundary thereof; thence east along tte northern boundaiy of said
territory to the northeast corner of said territory; thence southerly
along the eastern boundary of said territory to the plaoe of beginning,
constitutes the third district.

8. All that portion of the territory not embraced within the bounds ^<W-i . ^i j
of the first and third districts, as herein defined, constitutes the second
district; Provided, however. That if the congress of the United States
shall ratify the agreement with the Sioux Indians ceding the Black
Hills, then, and immediately thereafter, the judicial districts of this
territory shall be as follows, and the courts of the said districts shall
be held as herein provided:

1. All that portion of the Territory of Dakota west of the right bank
of the Missouri river at low- water mark, and south of the forty-sixth
parallel of latitude, except the counties of Todd, Gregory, Lyman, and
Presho, and so much of Boreman county as lies south of Grand river,
shall constitute the first iudicial district.

2. All that portion of this territory north of the forty-sixth parallel
of latitude, and so much of Boreman county as lies north or Grand
river, shall constitute the third judicial district.

8. All that portion of this territory not embraced in the first or
third judicial districts, shall constitute the second judicial district.

4. The district court in ahd for the third judicial district shall be
held at Bismarck, in the county of Burleigh, on the third Tuesday of
April and the second Tuesday of October in each year; and the district
court within and for tha first judicial district shall be held at the
county seat of Pennington county, on the fourth Tuesday of May and
the second Tuesday of September in each year; and the district court
in and tbr the se(iond judicial district shall be held at Yankton, in the
county of Yankton, on the second Tuesday of March and November of
each year.

§ 2. Certain courts have united states jurisdiction.] The
district courts in and for the counties of Clay, Yankton, and Cass shall
have and exercise the powers and jurisdiction appertaining to the dis-
trict and circuit courts of the United States in and for the several
judicial districts in which they are respectively located.

18 Subdivision of Judicial Districts. Chapter 13.

A^Mc^. aV,<&V CHAPTER XIII. A.-i 7.^. \i^

Subdivision of Judicial Districts.

§ 1. FiBST DISTRICT suBDiviDBD.] The first judicial district is sabdi-
vided as follows:

1. The county of Clay constitutes one subdivision, and the district
court shall be held therein on the first Tuesdays of February and
November,

2. The county of Union constitutes one subdivision, and the district
court shall be held therein on the first Tuesday of June and the first
Tuesday of December; and, in addition thereto, special terms shall be
held therein on the second Tuesdays of March ana August.

3. The county of Lincoln constitutes one subdivision, and the dis-
trict court shall be held therein on the first Tuesdays of April and
October; Provided^ hmmver, That no April terra shall be held therein
except upon the request of the board of commissioners for said county.

4. The counties of Minnehaha and Lake constitute one subdivision,
and the district court shall be held therein on the third Tuesday of
May, in each year, at the county seat of Minnehaha county, and the
county of Lake shall furnish a proportionate share of the jurymen tor
said court, and pay the same, but shall pay no other exijense of said
court unless there shall be at any term of said court business in said
court* from said county of Lake, in which event said county of Lake
shall pay her proportionate share of the expenses of said court as pro-
vided by this act.

5. The remainder of the first judicial district not included within
the preceding subdivisions constitute one subdivision, and the district
court shall be held therein on the first Tuesday of May, at the county
seat of Moody county; Provided, however, That such term shall not be
held except upon the order of the judge thereof.

§ 2. Second district subdivided.] The second judicial district is
subdivided as follows:

L The county of Bon Homme constitutes one subdivision, and the
district court shall be held therein on the third Tuesdays of M»rch and
September.

2. The cx)unty of Turner constitutes one subdivision, and the district
court shall be held therein on the first Tuesday of June.

3. The counties of Hutchinson, Armstrong, Hanson and Davison
constitute one subdivision, and one term of tne district court shall be
held therein each year, at such time and place as the judge shall
appoint.

4. The county of Yankton, and all other portions of said second
judicial district not included in any of the preceding subdivisions con-
stitute one subdivision, and the district court shall be held therein at
the county seat of Yankton county on the second Tuesdays of April
and October; and, in addition thereto, special terms shall be held at

Chapter 13, Subdivision of Judicial Distbicts. 19

said county seat on the first Mondays of January, March, May, July,
September, and November.

§ 3. Third district subdivided.] The third judicial district is sub-
divided as follows:

1. The counties of Cass, Stutsman, Richland, Ransom, Lamoure,
Traill, Grand Forks, Pembina, Barnes, Foster, Ramsey, Cavalier, Gin-
gras, French, and Rolette, constitute one subdivision, and the district
court shall be held therein, at the county seat of Cass county; on the
fourth Tuesday of May and the first Tuesday of September.

2. All the remaining portions of said third judicial district consti-
tute one subdivision, and the district court shall be held therein, at the
county seat of Burleigh county, on the second Tuesday of May and the
third Tuesday of September.

§ 4. Courts HELD at county seats.] The terms of the district courts
for subdivisions composed of a single county only shall be held at their
respective county seats.

§ 5. Judges may appoint terms.] The judges of the district courts
respectively have the authorit5^ at any time to appoint, by an order to
that eflFect, courts to be holden in any county of a subdivision coinposed
of two or more counties, and, from the time of the making of such
order, such county wherein courts are so appointed, shall cease to be a
part of the subdivision as herein provided, and shall itself constitute a
subdivision, and the district courts shall be therein held at the times
provided in such order.

§ 6. Sheriff serves process throughout subdivision.] In subdivis-
ions composed of two or more counties, the sheriff of the county where
the court is held shall have authority to execute all proper process in
any county or other place embraced within such subdivision, the same
as if such subdivision were composed of his county only.

§ 7. Method paying court expenses in subdivisions.] For the pur-
pose of paying the expenses of holding courts in those subdivisions
composed of two or more counties, the county clerks of the organized
counties therein shall, annually, as soon as the assessment roll is
received, transmit to the clerk of the court of that county wherein the
court is held, a statement of the aggregate amount- of the assessment
roll of their counties respectively; and at the close of each term of the
district court the clerk thereof shall, under the supervision of the
judge, calculate the expenses of such term and the proportionate
amount to be paid by each organized county, according to the propor-
tion which the amount of the assessment roll bears to the aggregate
amount of all the assessment rolls in such subdivision; and shall cer-
tify to the boards of county commissioners of the respective counties,
accounts for such proportionate amounts, and in favor of the persons to
whom such expenses shall be due, which accounts shall be audited and
allowed, and warrants issued accordingly, in like manner as other
claims against a county.

§ 8. Court may compel counties.] If any county shall fail to fur-
nish a statement of the amount of its assessment roll, or if no assess-
ment shall be made therein, the judge of the district court may fix
the proportionate amount of the expenses of the court which such
county shall pay, and may at any time, by mandamus, compel the

20 Clerk of District Courts. Chapter 14.

assessment, and levy of a tax, or the doing of any other act necessary
to carry out the provisions of this chapter.

§ 9. Additional terms of court — provisions f6r black hills coun-
ties.] The judges of the district courts respectively shall have the
power, whenever thereunto requested by the board of commissioners
of the county wherein terms of court are regularly holden, by an
order to that effect, to appoint and hold additional terms of the dis-
trict court in any county or subdivision; and such judges shall have
the power to adjourn the courts from time to time, as they shall deem
e^fpedient for the due administration of justice. The courts herein
appointed shall continue as long as the business therein shall require;
Provided^ however, that if the congress of the United States shall ratify
the agreement with the ^ Sioux Indians ceding the Black Hills, then,
immediately thereafter, the first judicial district, as herein provided,
shall become a part of the second judicial district, and the district
courts of the counties above named shall be held at the time and
places herein provided, and the first judicial district shall be subdi-
vided as follows: The county of Lawrence shall constitute one subdivis-
ion, and the district court shall be therein held on the first Tuesdavs
of June and October of each year. The counties of Custer and Pen-
ninjrton shall constitute one subdivision, and the district court shall
be therein held on the fourth Tuesday of May and the second Tuesday
of September in each year.

CHAPTER XIV.

Clerk of District Courts.

§ 1. Judges appoint clerks.] The judges of the district courts
respectively shall have the power to appoint a clerk of the district court
in each of the counties of his district, who shall be a resident of the
district and a qualified voter thereof, who shall procure and keep a
seal of the court for that county, and, when courts are appointed there-
in, shall perform all duties pertaining to that office, and shall keep
his office at the county seat of his county.

§ 2. Clerk responsible on bond for NBOLECTr] Any person who
may, at any time, be injured or aggrieved by reason of the violation of
the duties of his office, on the part of any such clerk of the district
court, or by any willful neglect or refusal to perform any of the duties
pertaining to office of clerE of the district courts, as the same are or
may be prescribed by law, may institute legal proceedings upon the
bond of such clerk, and collect thereon double the amount of damages
actually sustained by such aggrieved person, which suit may be
brought before any court haying competent jurisdiction; and the
county treasurer is also authorized and required for every such viola-
tion or neglect of duty, to collect a fine of not less than fifty dollars
for any such violation of duty, or refusal, or neglect on the part of
said clerk of the district court.

Clkajrier 15. District Attorney. 21

^ § 3. Mv^FT PBRFORM DUTiis.] It shall be the duty of the clerk of the
district court to perform all duties which are or may he assigned
him by law, and the rulesf of the court of which he is clerk, made in
pursuance of the statute in such case provided.

§ 4. Dkpttt acts di abssncs or clbrk.J Iu the absence of the clerk
of the district court firom his ofBce, or trom the court the deputy,
appointed in pursuance of law, piay perform all the duties pertaining
to the office.

§ 5. Clerk mat adjourn tsrh, or judge do so bt WRriTEN order.]
The clerk of any district court, whenever the judge, whose duty it
may be to preside therein, is hindered or delayed, from any cause, from
being at the place of holding the same, on the first, sei*ond, or third
day of the term thereof is hereby authorized to adjourn said court
from day to day, until the fourth <iay of said term; then, if said judge
does not appear to take his seat to preside therein, and the clerk does
not receive a written order of adjournment, the clerk aforesaid shall
adjourn said court without day; but the justice may, by written order
to the clerk, have an adjournment of any term of court within the
four days as afcyresaid, to such other time as he may therein appoint;
and such adj€>umed term shall be considered as a regular term tor all
lawful purposes whatever.

CHAPTER XV.

District Attorney.

§ 1. Attorney for each judicial district . after 1878.1 There
shaU be elected at the general election in 1878, and biennially there-
after, in each judicial district, a district attorney, who shall be a
resident of the district for which he shall be elected, and shall hold
his office for the term of two years, and until his successor shall have
been elected and qualified, and from and after the election and
qualification of such district attorneys, the office of county district
attorney shall cease, and said county district attorneys shall transfer
and turn over to the district attorneys, for the districts in which their
counties are severally included, all official business in their hands.

§ 2. Duties of district attorneys.] It shall be the duty of the
district attorneys of the several judicial districts, to appear in the
district courts of their respective districts, and prosecute or defend on
behalf of the counties in his district, or of the territory, all suits, indict-
ments, applications, motions, or special proceeding^, civil or criminal,
in which the territory or any county in his district is interested as
a party.

§ 3. To receive only lawful fees.] No district attorney shall
receive any fee or reward for services in ciny prosecution or business
to which it shall be his duty to attend other than what is or may be
provided by law.

22 Commissioners. Chapter 16^

§ 4. Vacancies filled by governor.] In case the ofl&ce of district
attorney shall become vacant by death, resignation, or otherwise, or
in case the person elected to the office shall fail or refuse to qualify,
the governor shall forthwith appoint some suitable person to be dis-
trict attorney until the*next general election.

CHAPTER XVI.

cr

Comniissioiiers.

§ 1. Governor may appoint — powers.] The governor shall have
power to appoint one or more commissioners in any state of the United
States, or of the territories belonging to the United States, who shall
continue in office during the pleasure of the governor, and shall have
authority to take the acknowledgment and proof of •the execution of
any deed, or other conveyance, or lease Of any lands lying in this ter-
ritory, and of any contract, letter of attorney, or any other writin
under seal or not, to be used or recorded in this territory.

8 2. Commissioner must have seal.] Each commissioner so appointed
as herein provided shall have an official seal on which shall be engraved
the words " Commissioner of Dakota Territory," with his surname at
length, and at least the initials of his christian name ; also, the name of
the state or territory in which he has been commissioned to act, which
seal must be so engraved as to make a clear impression on wax or wafer.

§ 3. Acknowledgments valid.] All acknowledginents and proofe, as
herein provided, taken according to the laws of this territory, and cer-
tified to by such commissioner under his seal of office, and annexed to
or indorsed on such instrument, shall have the same power and effect
as if the same had been made before any officer authorized to perform
such acts in this territory.

§ 4. May administer oaths and take depositions.] Every commis-
sioner, appointed as before mentioned, shall have power to administer
an oath, which may be lawfully required in this territory, to any person
willing to take the same, and to take and duly certify all depositions
to be used in anv of the coui-ts of this territory in conformity to the
laws thereof, either on interrogatories proposed under a commission
from any court of this territory, or by consent of parties, or on legal
notice given to the opposite party; and all such acts shall be as valid as if
done and certified according to law by a proper officer in this territory.

§ 5. Qualification, oath and seal.] Every such commissioner,
before performing any duty, or exercising any power by virtue of his
appointment, must take and subscribe an oath or affirmation before a
jud^e or clerk of some court of record, having a seal of the state or
temtory in which such commissioner shall reside, well and faithfully
to execute and perform all the duties of such commissioner, under and
by virtue of the laws of the Territory of Dakota, with a description and
impression of his seal of office, must be filed in the office of the secretary
of this territory.

Chapter 17. Notaries Public. 28

CHAPTEB XVn.

NotariewS Pablic.

k<Vi<?§ 1- Governor appoints — term — ^territorial jurisdiction.] The
governor shall appoint in each of the organized counties in this terri-
tory, from among the eligible citizens thereof, one or mo^e notaries
public, who shall be consiuered territorial officers, and shall hold their
office for the term of four years, unless sooner reyioved by the governor,
and who shall have power to act by virtue of their office within the
territory.

§ 2. Qualification, oath and bond.] Each and every notary public,
before he enters on the duties of his office, shall take an oath to support
the constitution of the United States and the act organizing this terri-
tory, and to faithfully and impartially discharge the duties of his said
office, and shall give bond to the people of the territory, to be approved

I by the clerk of the district court of his county, or judicial subdivision,
with one or more sureties, in the penal sum of five hundred dollars,
conditioned for the faithful discharge of the duties of his said office.
I 3, Vacancy — records deposited with clerk district court.]

i Whenever the office of any notary public shall become vacant, the
records of said notary public, together with all the papers relating to
the office, shall be deposited in the office of the clerk of the district
court in the county in which the said notary public resides; and any
notary public who, on his resignation or removal from office, shall
neglect to deposit such records and papers in the clerk's office, as afore-
said, for the space of three months, shall forfeit and pay a sum not less
than fifty dollars, nor more than five hundred dollars; and if any
executor or administrator of any deceased notary public shall neglect
to lodge such records and papers as aforesaid, wnich come into his
hands, in the clerk's office, for the space of three months after said
records and papers shall come into his possession, he shall forfeit and
pay a sum not less than fifty dollars, nor more than five hundred dollars;
and if any person shall knowingly destroy, deface, or conceal any
records or papers of any notary public, he shall forfeit and pay a sum
not less than fifty dollars, nor more than five hundred dollars, and shall
be moreover li&ble to an action by the party injured.

§ 4. Protest of bills and notes.] it shall be the duty of each and
every notary public, when any bill of exchange, promissory note, or
other written instrument, shall be by him protested for non-acceptance

j or non-payment, to give notice in writing thereof to the maker, and

j each and every indorser of a bill of .exchange, and to the maker or
makers of, and each and every security or indorser of any promissory
note or other written instrument, immediately after such protest shall
have been made.

^^i «\i9 § 5. Service of notice of protest.] It shall be the duty of every
notary public personally to serve the notice upon the person or persons

24

Notaries Public.

Chapter 17.

protested against; in case the person cannot be fonnd, said notary-
public shall serve notice of protest by leaving a copy of the same at
the last and usual place of abode of said person or persons; Provided,
He or they reside within twQ miles pf tne residence of such notary
public; but if such person or persons reside more than two miles from
such residence, the said notice may be forwarded by mail or other safe
conveyance.

§ 6. Record of notiobs and copy evidence.] Each and every notary
public shall keep a record of all such notices, and of the time and
manner in which the same shall have been served, and of the names of
all the parties to whom the same were directed, and the description
and amount of the instrument protested; which record, or a copy
thereof, certified by the notary under seal, shall at all times be compe-
tent evidence to prove guch notice in any trial, before any court in tnis
temtory, where proof of such notice may become requisite.

§ 7. Clerks of court to receive and keep records.] It shall be
the duty of the several clerks of the district courts to receive and keep
safe all the records and papers directed by this chapter to be depositea
in their office, and give attested copies of any of said records or papers
when required; and copies so given by the said clerk are hereby
declared to be as valid as if the same had been given by the said no^-
ries public. All tbrfeitures under this act shall be, one hajf to the uae
of this teiTitory, and the other half to him or th^m who shall sue for
the same; to be recovered in a civil action, in any court having juris-
diction of the same in the county where such notary public shall reside.

§ 8. Notarial seal — impression of same.] Every notary public,
before he enters upon the duties of his office, shall provide an ofBcial
seal and deposit an impression of the same, together with said oath
aqd bond, in the office of the secretary of the territory.
lii t^'^.s^^l^ §9. CoMMiissioN RECORDED BY CLERK.] Upou the commission, each
^ notary shall affix his official signature and seal, and file the same for

recprd with the clerk of the district court of his county or subdivision,
who shall record the same in a book kept for that purpose, and it shall
be deemed sufficient evidence to enable such clerk to certify that the
person so commissioned is a notary public during the time such com-
mission is in force.

§ 10. Revocation to be noticed to clerk.] Should the commission
of any^person so appointed be revoked, the secretaiy shall immediately
notify such person, and the clerk of the district court of the proper
county or subdivision, through the mail.

§ 11» Full cre^t to notarial acts*] Full faith and credit shall
be given to all the protestations, attestations and other .instruments of
publication of all notaries public now in office, or hereaiter to be
appointed under the provisions of this chapter.

Chapter 18. Attoeheys and Counselors at Law. 26

CHAPTER XVIII.

Attorneys and Counselors at LaT\^.

§ 1. Who may bb liobnsed to pbaotiob as attorneys.] All per-
sons who, by the laws heretofore in force, were permitted to practice
as attorneys and counselors at law, may continue to practice as such;
and, hereafter, any person twenty-one years of age, who is an inhabi-
tant of this temtory, who satisfies any court of record, either on
examination or by certiticate of admission from any other territory or
state, that he possesses the requisite learning, and is of good moral
character, may, by such court, oe licensed to practice as an attorney
and counselor; Provided, That no person shall be admitted to prac-
tice in the supreme court unless he shall have been first licensed to
practice in some one of the district courts^ or, on the presentation of
a eertiflcate of admission to practice in the supreme court of some
other territory or state.

§ 2. Oath in open court.] Upon bein? admitted to practice as
attorneys and counselors at law, they shall, in open court, take the
following oath:

" You do solemnly swear that you will support, protect and defend the constitution of the
United States and the orgfuiio act of the Territory of Dakota ; that vou shall do no falsehood or
conaent that any be done in court, and if yon know of any, you will five knowledge thereof to
the Judge of the court, or some one of them, that it may be reformea ; you shall not wittingly,

willingly, or knowingly, promote, sue, or procure to be sn^, any false or unlawful suU, or give
aid or consent to the same; yoaahall delay no man for lucre or malice, but shall act in the
office of attorney in this court according to your best learning and discretion, with all good
fidelity, as well to the court as to your client. So help you Goo."

g 3. Attoenbts fbom other states.] Any practicing attorney of
another state, having professional business in the courts of this terri-
tory, xoay be admitted to practice therein upon taking the oath
aforesaid.

§ 4. Duties of an attorney.] It is the duty of an attorney and
counselor :

1. To maintain the respect due to the courts of justice and judicial
officers.

2. To counsel or maintain no other actions, proceedings, or defenses
than those which appear to him legal and just, except, the defense of a
person charged witn a public offense.

$• To emj^oy, for the purpose of maintaining the causes confided to
him^ such means only as are consistent with truth, and never to seek
to mislead the judges by any artifice or false statement of fact or law.

4. To maintain mviolate the confidence, and, at any peril to him-
self, to preserve the secret of his client.

5. To abstain from all offensive personalities, and to advance no fact
prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he is charged.

o. Not to encourage either the commencement or continuance of an
action or proceeding from any motive of passion or interest.

26 Attorneys and Counselobs at Law. Chapter 18,

7. Never to reject, for any consideration personal to himself, the
cause of the defenseless or the oppressed.

§ 5. Punishment for deceit.] An attorney and counselor who is
guilty of deceit or collusion, or consents thereto, with intent to deceive
a court, or judge, or party to an action or proceeding, is liable to be
disbarred, and shall forfeit to the injured party treble damages, to be
recovered in a civil action.

§ 6. Power of an attorney.] An attorney and counselor has power:

1. To execute, in the name of his client^ a bond, or other written
instrument, necessary and proper for the prosecution of an action or
proceeding about to be or already commenced; or for the prosecution
or defense of any rieht growing out of an action, proceeding, or fin^
judgment rendered therein.

2. To bind his client to any agreement, in respect to any proceeding
within the scope of his proper duties and powers; but no evidence of
any such agreement is receivable, except the statement of the attorney
himsqlf, his written agreement, signed and filed with the clerk, or an
entry thereof upon the records of the court.

3. To receive money claimed by his client in an action or proceeding
during the pendency thereof, or afterwards, unless he has been previously
discharged by his client; and upon payment thereof, and not otherwise,
to dischai^ the claim or acknowledge satisfaction of the judgment.

§ 7. Proof of attorney's authority.] The court may, on motion,
for either party, and on the showing of reasonable grounds therefor,
require the attorney for the adverse party, or for any one of the several
adverse parties, to produce, or prove by his oath, or otherwise, the author-
ity under which he appears, and until he does so, may stay all proceed-
ings by him on behali of the parties for whom he assumes to appear.

§ 8. Attorney must not be surety.] No practicing attorney and
counselor shall be a surety in any suit or proceeding which may be
instituted in any of the courts of this territory.

§ 9. Lien for compensation.] An attorney has a lien for a general
balance of compensation in, and for each case upon:

1. Any papers belonging to his client, which have come into his
hands in the course of his professional employment in the case for
which the lien is claimed.

2. Money in his hands belonging to his client in the case.

3. Money due his client in the hands of the adverse party, or attor-
ney of such party, in an action or proceeding in which the attorney
claiming the lien was employed, from the time of giving notice in
writing to such adverse party, or attorney of such pany, if the money
is in the possession or under the control of such attorney, which notice
shall state the amount claimed, and, in general terms, for what services.

4. After judgment in any court of record, such notice may be given,
and the lien made eflFective against the judgment debtor, by entering
the same in the judgment docket opposite the entry of the judgment.

§ 10. Lien released by bond.] Any person interested may release
such lien by executing a bond in a sum double the. amount claimed,
or in such sum as may be fixed by a judge, payable to the attorney,
with security to be approved by the clerk of the court, conditioned to
pay the amount finally found due the attorney for his services, which
amount may be ascertained by smt on the bond. Such lien will be

Chapter 18. Attorneys and Counselors at Law. 27

released, unless the attorney, within ten days after demand there-
for, famishes any party interested a full and complete bill of particu-
lars of the services and amount claimed for each item, or written
contract, with the party for whom the services were rendered.

§ 11. Court may revoke or suspend license.] Any court of
record may revoke or suspend the license of an attorney or counselor
at law to practice therein, but not until a copy of the charges against
him shall have been delivered to him by the clerk o( the court in
which the proceedings shall be had, and an opportunity shall have
been given to .him to oe heard in his defense.

§ 12. Causes for suspension.] The following are sufficient causes
for revocation or suspension :

1. When he has been convicted of a felony, or of a misdemeanor
involving moral turpitude, in either of which cases the record of con-
viction is conclusive evidence.

2. When he is guilty of a willful disobedience or violation of the
order of the court, requiring him to do or forbear an act connected
with, or in the course of^ his profession.

3. For a willful violation of any of the duties of an attorney or
counselor as hereinbefore prescribed.

4. For doing any other act to which such a consequence is by
law attached, or upon conviction for any of the offenses mentioned in
sections 201, 202, 209 and 210 of the penal code.

§ 13. Proceeding to remove or suspend.] The proceeding to
remove or suspend an attorney may be commenced by direction oi the
court, or on motion of any indiviaual. In the former case the court
must direct some attorney to draw up the accusation ; in the latter the
accusation must be drawn up and sworn to by the person making it.

§ 14. Accusation— HOW answered.] To the accusation he may plead
or demur, and the issif^s joined thereon shall, in all cases, be tried by
the court, all the evidence being reduced in writing, filed, and preserved.

§ 15. Judgment on plea of guilty.] If the accused plead guilty,
or fail to answer, the court shall proceed to render such judgment as
the case requires.

1 16. Appeal from judgment.] In case of removal or suspension
being ordered by a district court, an appeal therefrom lies to the
supreme court, and all the original papers, together with a transcript of
the record, shall thereupon be transferred to the supreme court, to be
there considered and finally acted upon. A judgment of acquittal by
the district court is final.

§ 17. Refusal to pay over money.] An attorney who receives the
money or property of his client in the course of his professional
business, and refuses to. pay or deliver it in a reasonable time, after
demand, is guilty of a misdemeanor.

§ 18. No PENALTY UNLESS LIEN SECURED.] When the attorney claims
to be entitled to a lien upon the money or property, he is not liable to
the penalties of the preceding section until the person demanding the
money or property proffers sufiScient security for the payment of the
amount of the attorney's claim, when it is legally ascertained.

§ 19. No liability if security be given.] Nor is he in any ca.se
liable as aforesaid, provided he gives sufficient security that he will pay
over the whole, or any portion thereof^ to the claimant, when he is
found entitled thereto.

28 Jurors. Chapter 19.

CHAPTER XIX.

Jurors-

§ 1. •Qualifications of jurors.] All male citizens residing in any
of the counties of this territory having the qualifications of electors,
and being over the age of twenty-one years, and of sound mind and dis-
cretion, and not judges of the supreme court or district courts, clerk
of the supreme or district courts, sheriffs, coroners, licensed attorneys
engaged in the practice, or jailors, and not subject to any bodily infirm-
itv amounting to a disability, and who have not been convicted
of a criminal offense punishable by imprisonment in the penitentiary,
and not subject to disability for the commission of any offense which by
special provision of law does or shall disqualify them, are and shall be
competent persons to serve on all grand and petit juries within their
counties or subdivisions respectively; Provided, That persons over six-
ty years of age, ministers of the gosjjel, probate judges, county commis-
sioners, registers of deeds, practicing physicians, postmasters and
carriers of the United States mail, shall not be compelled to serve as
jurors. t5U.<6b cL-^%v

§ 2. Two HUNDRED NAMES FROM LAST TAX List.] In each of the
counties wherein a district court is appointed or directed to be holden,
two hundred names of qualified persons shall be selected from the last
annual tax list, and furnished to the clerks of the district courts by
the county commissioners, from which to draw the grand and petit
juroi*s; and such number shall at all times be kept full by completing
the number after each term of court when a jury or juries have
been drawn and summoned, and at the end of each term of the district
court the clerk thereof shall make requisition upon the county com-
missioners for the furnishing of so many names as have been drawn, so
£us to keep the said number oitwo hundred full; and such county commis-
sioners shall, at their first meeting after receiving such requisition, fur-
nish* such number of names, so selected, of persons so qualified, to
complete and keep full such number of two hundred; Provided, That
upon discovery by the court or county commissioners of the name of
any person who is a non-resident, or disqualified, they shall withdraw
such name.

§ 3. How DRAWN IN SUBDIVISIONS.] To enable juries to be drawn
and summoned in those subdivisions composed of two or more coun-
ties, the county clerks of all the organized counties therein shall, as
soon as the assessment roll is returned, and yearly thereafter, furnish
to the clerk of the district court of that subdivision the aggregate
number of names appearing upon the assessment roll of their counties
respectively, if such county shall have such assessment roll, and the
clerk of such district court shall thereupon, and yearly thereafter, make
requisition upon the county commissioners for the proportionate num-
ber of names to be furnished by each county of the subdivision

Chapter 19. * Juborb. 29

respectively, to make up the number of two hundred, each county to
famish such proportion as the number of names upon their assessment
roll bears to the aggregate of all the assessment rolls of the counties
of such subdivision; and thereupon, from time to time, as such reciui-
sition shall be made, the county commissioners shall furnish the required
number of names, and from the two hundred names so fumishea, the
grand and petit juries shall be drawn by such district court clerk and
sheriff of the county where the court is held, by lot, as therein pro-
vided.

§ 4. When cottnty fails.] If one or more counties shall fail to fur-
nish their proportionate, or any number of names, such juries shall be
drawn ftx)m those names that shall be furnished, and the- judges of the
district courts respectively are authorized and enapowered to make
any rule or order that shall be by them deemed necessary, or to cause
any act or thing to be done to effect the drawing or summoning of
either a grand or petit jury for such subdivision, and shall at any time
have the power to cause a jury, either grand or petit, to be summoned
for such aistrict court from the body of such subdivision, and no omis-
sion of any act altogether, or the failure to perform it within the time
herein prescribed, shall be the cause of challenge of any individual
juror or to the panel.

§ 5. JUKY SUMMOKED ONLY ON ORDER OP DISTRICT COtTRT.] No jury

shall be summoned except by order of the judge of the district court,
who shall issue an order to the clerk of said court that a jury shall be
summoned, and in such order shall specify the number of petit jurors
that shall be summoned, and the time and place where they shall
appear, and such order may be issued at any time within ten days
before the first day of the term of the district court, or at any time
during the term of said court.

§ 6. Grand jury, how summoned.] A grand jury shall be summoned
in the same manner provided for summoning petit juries; Provided,
That in all cases a grand jury shall consist of not less than sixteen
jurors.

§ 7. Clerk puts names on tickets.] The clerk or deputy clerk
receiving the names from the county commissioners as herein provid-
ed, shall write the name of each person selected on a separate ticket,
and place the whole number of tickets in a box, or other suitable and
safe receptacle, and shall preserve the list of names furnished by the
commissioners in the files of his oflBce.

§ 8. Clerk and sheriff draw jurors by lot.] The clerk of the
district court, or his deputy, and the sheriff', or his deputy, or, if there be
no sheriff, or, in case of his disability or suspension from office, the
coroner shall immediately upon, or within two days from the receipt of
the order directing a jury to be summoned, meet together and draw by
lot Out oF the box or receptacle, wherein shall be kept the tickets afore-
said, the number of jurors directed to be summoned by the judge of
the district court. The jurors first drawn, to the number required in
the order, shall serve as grand jurors, if a grand jury shall be ordered
to be summoned, and the remainder, drawn in compliance with said
order, shall serve as petit jurors.

§ 9. Clerk issues venires. [ The clerk shall, on the day of the draw-
ing as herein provided, issue a venire, or venires, as the case may be,

30 JuEOES. • Chapter 19.

directed to the proper office of the counties respectively from which the
jurors are drawn, commanding such officer to summon the persons
whose names are drawn, to appear before the district court at the hour,
day, and place designated in the order of the judge.. A separate venire
shall issue for the grand jury when such jury shall be ordered.

§ 10. Venire, how served.] The officer receiving such venire shall
forthwith serve the same, by reading or delivering a true copy thereof
to each person therein named, or by leaving such a copy at his usual
place of residence; such copy need contain only the name of the jijror
served; and shall make return thereof, with his proceedings endorsed
thereon, to the clerk as soon as he has executed tne same.

§ 11. Juror must appear.] Each grand and petit juror summoned
shall appear beforg the court on the day and at the hour specified in
the summons, and shall not depart without leave of the court.

§ 12. Court may order jury forthwith.] If all persons sum-
moned as grand and petit jiirors do not appear before the court, or if
for any cause the panel of the grand jurors or petit jurors is not com-
plete, or if no jurors be drawn as above proviaed, the court may order
the sheriflF, deputy sheriffi or coroner, to summon without delay, good
and lawful men having tne qualifications of jurors, and the person or
persons summoned shall forthwith appear before the court, and, if com-
petent, shall serve on the grand jui^ or petit jury, as the case may be,
unless such person, or persons, niay oe excused from serving or lawfully
challenged.

§ 13. Summons to complete special panel.] Whenever .the panel
of ^etit jurors shall be exhausted by challenges of either party, in any
action, the judge of the court shall order the sheriff^, deputy sheriff^ or
coroner, to summon without delay, a sufficient number of persons pos-
sessing the qualifications of jurors, as before provided, to complete the
number requisite for a jury in that particular case.

§ 14. Citizens must be selected in rotation.] It shall be the duty
of the county commissioners in selecting and furnishing to the clerk
the number of persons qualified to serve as grand and petit jurors, so to
select and arrange that no one person shall come on the jury the sec-
ond time before all qualified persons shall have served respectively in
rotation, according to the best information that can be obtained.

§ 15. Failure to appear punishable.] If any person summoned
to appear as grand juror or petit juror, fails, refuses, or neglects to
appear, such person shall be considered guilty of contempt of the
court, and may be fined by the court in any sum not less than five nor
more than fifty dollars; and if any person, when a second order of
attachment is issued, neglects or refuses to appear, such person may
be fined as above provided, and imprisoned by the court, not longer
than ten days, in the county jail, and if the county commissioners of
any county willfully neglect or fail to select and furnish to the clerk
names of persons as hereinbefore provided, such persons so ofiending
may be fined by the court not less than five nor more than fifty dollars;
and if the clerk of the district court, or deputy clerk, or sheritfj or dep-
uty sheriff', or coroner, so neglect or fail to perfonn the duties imposed
by this act, the persons so offending shall be considered guilty of con-

Chapter 20, Administration of Oaths. ^ 31

tempt of court, and may be fined by the court not less than five nor
more than fifty dollars, and if guilty of gross misconduct in oflBce, and
contempt in disregarding the provisions of this act, may be imprisoned
by the court not longer than tnirty days in the county jail.

CHAPTER XX.

Administratioii of Oaths,

§ 1. Officers authqbizbd to administsb oaths.] The following
officers are authorized to administer oaths:

Each justice of the supreme court;

Clerks of the supreme and district courts, and their deputies, within
their respective counties;

County clerks and their deputies, and county commissioners, within
their respective counties.

Judges of the probate court, justices of the peace, and notaries pub-
lic, within their respective counties.

Each sheriff and his deputies, in cases where they are authorized by
law to select commissioners or appraisers, or to empanel juries for the
view or appraisement of property, or are directed as an official duty to
have property appraised, or take the answers of garnishees.

§ 2. rBKSQN9 MAY AFFIRM.! Pcrsous couscieutiously opposed to
swearing may affirm, and shall be subject to the penalties of perjury
as in case of swearing.

CHAPTER XXI.

Counties and County Officers-

ORGANIZATION OP COUNTIES.

§ 1. Fifty voters to organize county.] Whenever the voters of
any unorganized county in this territory shall be equal to fifty or
upwards, and they shall desire to have said county organized, they may
petition the Governor, setting forth that they have the requisite niim-
ber of voters to form a county organization, and request him to appoint
the officers specified in the next section of this act.

§ 2. Petition to governor and appointments,] Whenever the voters
of any unorganized countjr in the territorv shall petition the governor,
as provided m the preceding section, and the said governor shall be

32 CouNTiBS AND CouNTY Offiobrs. Chapter 21.

satisfied that such county has fifty legal voters, it shall be the duty of
the governor, and he is hereby authorized to appoint three persons,
residents thereof, county commissioiiers for such county, wno shall
hold their office until the first general election thereafter, and until
their successors shall be elected and qualified. Cw-i^**'-\^\

§ 3. Commissioners qualify and appoint officers.] Said county
commissioners, after having qualified according to law, shall appoint
all the county officers of said county required oy law, who, after hav-
ing qualified, shall hold their office until the next general election,
and until their successojfS ^all have beetti elected and qualified.
^,^9 oL. i:\79 § 4. Commissioners' duties.] The county commissioners appointed

under this act shall have the power to locate the county seat of such
county temporarily, aud fihall divide the county intq three commis-
sioner districts, which shall be numberea from one to' three, and said
districts shall not be changed oftener than once in three years, and then
only at the regular sessions in January, April, or July, and one com-
missioner shall be elected from each of said districts at the next gen-
eral election after such organization, one of whom shall be chosen for
the term of one year, one for two years, and the third for three years,
and one annually thereafter, as provided by law:

§ 5. Annexed territory part of county.] Such portions of the
territory not organized into counties as are annexed to any organized
county, shall, for judicial and other purposes, be deemed to be within
the limits and a part of the county to which they are annexed.

LOCATION OF COUNTY SEATS.

§ 6. County seat located by majority vote.] When any county
shall be organized as herein provided, the qualified voters thereof are
hereby empowered to select the place of the county seat, by ballot, at
* the first general election at which the county officers are chosen, and
for this purpose each voter may designate on his ballot the place of his
choice for the county seat; and when the votes are canvassed the place
having the majority of all votes polled shall be the county seat, and
public notice of said location shall be given within thirty days by the
county commissioners, by posting up notices in three several places in
each precinct in the county; and if no one place voted for shall have a
majority of all the votes casit, the place as Socated temporarily by the
county commissioners shall remain the county seat until changed, as
provided in the next section.

§ 7. County seaj changed by two-thirds vote.] Whenever the
inhabitants of any county are desirous of changing tne place of their
county seat, and upon petitions being presented to the county com-
missioners, signed by two-thirds of the qualified voters of the county,
it shall be the duty of the said board, in the notices for the next gen-
eral election, to notify said voters to designate upon their ballots, at
said election, the place of their choice; and if, upon canvassing the
votes so given, it shall appear that any one place has two-thirds of the
votes polled, such place shall be the county seat, and notice of such
change shall be given as hereinbefore provided in the case of the loca-
tion of county seats of new counties.

§ 8. County seat on public lands.] Whenever any county seat
shall be located upon the public lands, it shall be the duty of the

Chapier 21. CdUiJ'riEB AND County Officers. S3

county commissioners to enter or purchase a quarter section of land
at the place so designated, at the expense of and for the use of the
county, within three months thereafter, if said land be subject to pri-
vate entry; if not, the board shall claim the same as a pre-emption
under the laws of the United States, for the use of said county.

§ 9. CoMMissiONEHs TO suBviTY AND PLAT SAME.] The couuty com-
missioners shall, within three months after the selection, cause the
same to be surveyed in town lots, squares, streets and alleys, and plat-
ted and recorded in pursuance of law, and shall select the place for the
county buildings thereon, reserving for that purpose so many of said
lots as may be deemed necessary.

§ 10. Surplus lots sold.] The remainder of said lots shall be
offered at public sale by the sheriff of said county to the highest bid-
der, at the times and places to be designated in the notices of such
sales^ which shall be posted at three public places in the county, and
published in some newspaper, at least thirty days previous to such
sales. The terms of sale shall be one-third cash and the balance on
time, as the county commissioners may deem best^ and they may dis-
pose of lots at private sale upon terms as above provided.

§ 11. Certificate to purchaser.] Purchasers of the aforesaid lots
shall receive a certificate of purchase from said sheriff', entitling the
holder to a warranty deed from the county commissioners, when pay-
ment in full shall be made for the same; any lots sold as above, that
shall not be paid for as provided in this chapter, or within one year
Uiereafter, shall be forfeited to the county and shall be again sold as
herein provided. i .

§ 12. Net proceeds paid into treasury.] The proceeds of the sales
of the aforesaid lots, after deducting the expenses of the surveying,
advertising, selling, and all other necessary expenses, shall be paid into
the county treasury, and shall constitute a fund for the erection of
public buildings for the* use of the county, at the county seat, and shall
be used for no other purpose whatever.

^ corporate powers and liabilities.

§ 13. County body corporate — powers.] Each organized county is
a body corporate for civil and political purposes only, and as such may
sue and be sued, plead and be impleaded, in any court in this territory;
and in all cases where lands have been granted to any county for pub-
lic purposes, and any part thereof has been sold, and the purchase
money, or any part thereof, shall be due and unpaid, all proceedings
necessary to be had to recover possession of such lands, or to enforce
tte payment of the purchase money, shall be instituted in the name
of the proper county.

I 14. JuDOlfENTS AGAINST, LIEN ON COUNTY PROPERTY.] WhcU any

judgment is obtained against the county, it shall be a lien upon the

{property of the county, and the public property shall be liable there-
6r; but no execution shall issue therem until the board of county
commissioners shall havB had six months' time to assess and collect a
sufficient amount of revenue, under the provisions of this chapter, t6
pay off and discharge said judgments, in addition to the ordinary
expenses of the county, o^ .^^v J. . \r^t I

34 Counties and County Officers. Chapter 21.

OFFICERS.

^Vi «t, Y \<^ § 15. Officers of organized counties — election.] Each organized

county shall have the followinff officers, to wit: Three commissioners,
who shall constitute the board of county commissioners, one roister
of deeds, one county clerk, one clerk of the district court, one sheriff,
one assessor, one judge of the probate court, one county treasurer, one
county surveyor, one •coroner, one superintendent of public schools,
four justices of the peace, and four constables, who shall possess the
qualifications of electors; and shall be chosen by the qualified electors
of their respective counties at the general election in the year 1878,
and every two years thereafter, except commissioners (who shall be
chosen as hereinafter provided), county clerk and clerk of the district
court.

V ^ ^ V K^ \ {) OF THE BOARD OF COUNTY COMMISSIONERS.

^ § 16. Commissioners terms, succession and districts.] The commis-
sioners shall hold their office for the term of three years, except as pro-
vided in the statute for the organization of counties, and one snail
retire and one be chosen annually, and in counties now organized the
order of their election and succession shall remain as now established,
and commissioner districts in such counties shall continue as now con-
stituted, until changed, as provided by law.

§ 17. County seal.] The board of county commissioners hereby
established shall procure and keep a seal, with such emblems and
devices as they may think proper, which shall be the seal of the county,
and no other seal shall be used by the county clerk; and the impres-
sion of the seal, hereby required to be kept, by the stamp, shall be
sufficient sealing in all cases where sealing is required.

§ 18. Sessions of board, time and place.] The county commission-
ers shall meet and hold sessions for the transaction of business at the
court houses in their respective counties, or at the usual place of hold-
ing court, on the first Monday in January, April, July, and October of
each year, and may adjourn from time to time; and the county clerk
shall have power to call special sessions when the interest of the
county demands it, upon giving five days' notice of the time and object
of calling the commissioners together^ by posting up notice in three
public places in the county, or by publication in one newspaper in the
county; Provided, That in case of a vaCancv in the office or the register
of deeds, the chairman of the board shall nave power to call a special
session for the purpose of filling the same.

§ 19. Election of chairman of board.] At the first meeting of the
county commissionei's in each and every year, they shall elect one of
their number chairman, who shall act as chairman of the board of said
commissioners during the year in which he is elected, or until his suc-
cessor is elected; and in case of a vacancy, from any cause whatever,
the board of county commissioners shall elect another chairman.

§ 20. DtJTiES OF CHAIRMAN.] It shall be the duty of thiB chairman of
the board of county commissioners to preside at the meetings of said
board, and all orders made by the board of county conimissioners, and
all warrants drawn on the county treasurer, shall be sig"ried by the
chairman and attested by the county clerk.

§ 21. Tie vote defers decision.] When the board of county
commissioners are equally divided on any question, they shall defer a

Chapter 21. Cquktie6 and County Ofpiobrs. 85

decision until the next vMeiiine of the board, and then the matter
shall be decided by a majority of the board.

§ 22. Copiiss OF FROCEEDiNOfi BvxDBNGjB.] Copies of the proceedings
of the board ot county commissioners, duly certified aud attested by
the county clerk, under seal, shall be received as evidence in all courts
of this territory.

§ 23. Board power to preserve order.] The board of county
ooouaissiQiiers shall have the power to nneserve order when sitting as
a board, and may punish contempts by nnes not exceeding five dollars,
or by imprisonment in the. county jail not exceeding twenty-four
hours; they may enforce obedience to all orders made by attachment
or other compulsory process, and when fines are assessed by them the
same may be collected before. any, justice of the peace having jurisdic-
tion, ajid shall be paid, over^ aa other fines, within ten days after they
are collected. . ?

§ 24. Board to keep account with treasurer.] The said commis-
sioners shall keep a distinct account with the treasurer of the county,
in a book to be provided* for that purpose, commencing irom the day
on which the treasurer became qualifiea and continuing until the same,
or another person is qualifiied as treasurer, in which account they shall
charge the treasurer with all sums paid him^aud for. all sums for
which the s^^id treasurer is a^ccouiitable to the county, and they shall
credit him with all warrants returned and canceled, with all moneys
paid, and wit^ all vouchers presented by him, and with all matters
with which the treasurer is to be credited on account; a^d the said
board shall, in their settlement with the treasurer, keep the general,
special, and road tax separate, that any citizen of. the county may see
how the same is expended.

§25. Board shall keep reoord.] ..They shall keep a book in
which all orders and. decisions made by them shall be recorded, except
thoBO relating to roads^ and bridges, and all. orders for the alio wiance. of
money from the county treasury shall state on . what account, and to
whom tha allowance is made, dating. the same and numbering them
consecutively, as allowed, from the first day of J^-nuary to the thirty-
first day of December in >eaoh year. ■ .

§.26. Rboord as to bridoxs and roads.] They shall keep a book
for the eiM^ry of. all proceedings and adjudication^ relating, to bridges
and the edtablishmemt, change, or ^iscpntiinuanee ol' roads.

§27. Warrant hsoistbr.] They shall keep a book for the entry
of warrants on the county treasurer^ showing number, date, amount,
and name o£ the .drawee of each warrant drawn on the treasury, which
may be koown as the warrant, book, and the waarrants shall be num-
beiied in relation to the order and decision allowing the amount for
which the same is drawni -

§ 28, BoiARD MAY prosrcutb: civil actions J They shall have
power to institute jajid- prosecute civil actions in the name of the
county, for and on. behalf of the county.

§ 29. SpBoiFic FowBRs OF BOARD.] Thcyshall have power to make
all orders respecting property of the county, to seU the public grounds
of the.countyy and to purchase other pounds in lieu thereof; and, for
the purpose of carrying: out theipro^visions of this section, it shall be-
suflBcient to convey all the interest of the county in such grounds,

S6 CouNTiBS AND CouNTY Offiobrs. Chapter 21.

when an order is made for the sale, and a deed is executed in the name
of the county, by the chairman of the board of commissioners, reciting
the order, 'and signed and acknowledged by him, for and on behalf of
the county; Provided^ however y That the question of the sale of such
public grounds or lands shall be first submitted to a vote of the pKBople
of the county, as hereinafter provided, and sanctioned by a majority
vote thereof.

2. They shall have power to levy a tax not exceeding the amount
now authorized by law, and to liauidate indebtedness. e5k.\M «i A^^v

3. To audit the accounts of all officers having the care, manage-
ment, collection, or disbursement of any money belonging to the coun-
ty, or appropriated for its benefit.

4. To construct and repair bridges, and to open, lay out, vacate,
and change highways; to establish election precincts in their county
and appoint the judges of election, and to equalize the assessment roll
of their county, m the manner provided by law.

5. To furnish the necessary blank books, blanks, and stationery for
clerks of the district court, county clerk, register of deeds, county
treasurer, and probate judge of their respective counties, to be paid
out of the county treasury; also a fire proof safe, when in their iudg- .
ment the same shall be deemed advisable, in which to keep all the
books, records, vouchers, and papers pertaining to the business of the
board.

6. To do and perform such other duties and acts that boards of
county commissioners are now, or may hereafter be, required by law
to do and perform.

§ 80. SupBRiNTKNDBNCE OF COUNTY A9FAIBS.J They shall Superin-
tend the fiscal concerns of the county, and secure their management
in the best manner; they shall keep an account of the receipts and
expenditures of the county, and on the first Monday of July, annually,
they shall cause a full and accurate statement of the assessments,
receipts, and expenditures of the preceeding year, to be made out in
detail wider seperate heads, with an account of all debts payable to
and by the county treasurer, and they shall have the same printed in
at least one newspaper in their county, and if there be no paner in the
county, the same shall be posted up at the usual place of homing their
sessions, and at one public place in each precinct of the county.

§ 31. BOAHD MAT PROOtTR]}' ORIGINAL FISLB N0TB8.] Said DOard 18

authorized to procure for their county a copy of the field notes, as soon
as practicable, of the original survey of their county by the United
States, and cause a map of the county to be constructed therefrom, on
a scale of not less than one inch to a mile, and laid off in cbnffressional
townships and sections, to be kept open in the office of the county
clerk, and the field notes to be deposited in the same office.

§ 82. Submit extraobdinabt outlay to votx.] They shall submit
to the people of the county, at any regular or special election, any ques-
tion involving an extraordinary outlay of money by the county, or
any exi)enditure greater in amount than can be provided for by the
annual tax, or whether the county will construct any court house, jaiL
or other public buildings, or aid or construct any road or bridge, ana
nnay aid any enterprise designed for the benefit of the county, when-

Chapter 21. Coontibs and County Officers. /-^'l^ . 37

ever a majority of the people thereof shall authorize the same as here-
inafter provided.

§33. DsPBECiATpD WARRANTS,] When county warrants are at a
depreciated value, the said commissioners may,* in a like manner, sub-
mit the question whether a tax of a higher rate than that provided by
law shall be levied; and in all cases when an additional tax is laid, in
pursuance of a vote of the people of the county, or for constructing
or ordering to be constructed any road or bridge, or for aiding in any
enterprise contemplated by the preceding section, such special tax
shall be paid in money and in no other manner.

§ 34. Mode of submittino propositions.] The mode of submitting

auestions to the people contemplated by the last two sections, shall be
lie following: The whole question, including the sum desired to be
raised, or the amount of the tax desired to be levied, or the rate per
annum, and the whole reflation, including the time of its taking
effect, or having operation, if it be of a nature to be set forth, and the
penalty of its violation, if there be one, is to be published at least four
weeks in some newspaper published in the county. If there be no
such newspaper, the puoUcation is to be made by being posted up in
at least one of the most public places in each election precinct in the
county^ and in all cases the notices shall name the time when such

Suestion will be voted upon, and the form in which the question shall
e taken, and a copy of the question submitted shall be posted up at
each place of votiing during tne day of election.

§ 35. Proposition to tax must aocompaj^y.] When the question
submitted involves the borrowing or expenditure of money, the

Eroposition of the. question must be accompanied by a proposition to
iy a tax for the payment thereof, in addition to the usual taxes under
section fifteen [twenty-nine] of this chapter; and no vote adopting the
question proposed shall be valid, unless it likewise adopt the amount
of tax to DO levied to meet the liability incurred.

§ 36. SUOH TAX ANNUALLY NOT EXCEED THREE MILLS.] The rate Of

tax levied in pursuance of the last four sections of this chapter, shall
in no case exceed three mills on the dollar of the county valuation in
one year. When the object is to borrow money to aid in the erection
of public buildings, the rate shall be such as to pay the debt in ten
years; when the object is to construct or aid in constructiuR any road
or bridge, the annual rate shall not exceed one mill on a dollar of the
valuation; and any special tax or taxes, levied in pursuance of this
chapter, becoming delinquent, shall draw the same rate of interest
as ordinary taxes levied in pursuance of the revenue laws of this
territory.

§ 37. Record of vote — board cannot rescind.] The said commis-
sioners being satisfied that the above re<][uirements have been sub-
stantially complied with, and tbiat a majority of the votes cast in favor
of the proposition submitted, shall cause the same to be entered at
large upon the book containing the record of their proceedings, and
they shall then have power to levy and collect the special tax, in the
same manner that the other county taxes are collected. Propositions
thus acted upon cannot be rescinded by the board of county commis-
sioners.

38 . Counties and County Officers. Chapter 21.

§ 88. Monet SPECIFICALLY applied.] Money raised by the county
commissioners, in pursuance of the last six sections, is specially
appropriated and constituted a fund, distinct from all ottiers, in the
hands, of the county treasurer, until the obligations assumed are
discharged.

§ 39. Warrants, how signed and attested.] All warrants upon
the county treasury shall be issued upon the order of the board of
county commissioners, signed by the chairman thereof, and attested
by the signature of the county clerk, with the county seal attached;
and shall designate the fund upon which they are drawn.

§ 40. Sessions public at county seat.] They shall hold their ses-
sions with open doors, and transact all business in the most public
manner, and where the county has no court house, or the court house
shall be unfit or inconvenient, they may hold their sessions for the
transaction of business at any other suitable place at the ciounty seat.
All matters pertainihg to the interest of the county shall be heard by
the board of commissione'rs in session only, but they may continue any
business from any regular session to an intermediate day.

§ 41. What constitutes record:] The books required to be kept
by this chapter shall constitute the record of Uie board of county com-
missioners.

§ 42. Board provides offices, jail, c6urt room, ac] In any 'county
where there is no court house ot jail erected by the county, it shall be
the duty of the board of county cotnmissic^ers to provide for court
room, jail, and offices for the several officers by law required to be fur-
nished by such county^ in a suitable building or buildings, fOr the lowest
rent to be obtained, at the county seat; or to secure and ocfcupy suitable
rooms at a free rent within the limits of the county seat, or any of the
additions thereto, until such county builds a court house: They shall
also provide the courts appointed to be held therein with attendants*
fuel, lights, and stationery, suitable and sufficient for the tralisaction
of their business. If the commissioners neglect, the court Dftay order
the sheriff to do so, and the expense inctrrred by him in carrying the
order into effect, when certified by the court, shall be a county charge.

§ 48. Power to erect buildings from current revenue.] 8aid
board shall hate authority and power, under the provisions of this
chapter, to provide for the erection and repairing of court hou^s, jails,
and other necessary buildings within and for the county, and to make
contracts on behalf of the county for the building or rei)airing of the
same; but no expenditure, for the purpose herein named, greater than
can be paid out of the annual revenue of the county for the cultent
year, shall be made, unless the question of such expenditure shall have
first been submitted to a vote of the qualified voters of such county,
and shall have been approved by a majority of the v6tes so cast; and
the board shall determine the amount and rate of taxes to be submitted
to a vote for such purpose.

§ 44. Duty to use building fund.] After a building fund has' been
accumulated, either from the proceeds of the sale of town lots, or from
any other source, it shall be the duty of the board of county commis-
sioners, within one year from the time such fund becomes available, to
proceed to the erection of the necessary county buildings, including a

Chapter 21. Counties anb Countx Officers. 39

jail, if such fand shall, in the judgment of the board, be suflBcient for
that purpose.

§ w. Contracts let only on competitive bids.] The board shall
cause an advertisement for bids for the erection of such buildings, to
be printed in some newspaper published in the county, for at least three
months prior to the opening of the bids, and in such other newspaper
in the territory, and for such period as the board may deem advisable.
Such advertisements shall state where the plans and specifications may
be examined, and the time allowed for the completion of such buildings,
and when the bids will be opened and passed upon by the board, which
must be at one of the regular sessions of the board, and must be public.
The lowest responsible bid must in all cases be accepted, and the con-
tracts for such buildings shall be so conditioned that not more than
one-half the payment for the same shall be made until the coiitract
shall be executed and the buildings completed to the satisfaction and
acceptance of the board. Said board may further require a bond, to
accompany each bid, conditioned that the bidder will enter into a con-
tract, with approved security, for the ^ performance of the work in
accordance witn the plans and specifications, in case his bid is accepted.

§ 46. Appeals allowed from decisions of board.] From all oecis-
ions of the board of commissioners, upon matters properly before them,
there shall be allowed an appeal to the district court by any person
aggrieved, upon filing a bond with sufficient penalty, and one. or more
sureties, to be approved by the county clerk, conditioned that the appel-
lant will prosecute his or . her appeaJ without delay, and pay all costs
that he or she may be adjudged to pay in the said district court; said
bonds shall be executed to the county, and may be sued in the name of
the county, upon breach of any condition therein.

§ 47. Appeal in twenty days, on notice.] Said appeal shall be
taken within twenty days after the decision of said board, by serving a
written notice on one of the board of county commissioners, and tiie
county clerk shall, upon the filing of the bona, and the payment of his
fees, allowed by this chapter, as hereinafter provided, make out a cpm-
plete transcript of the proceedings of said board, relating to the matter
of their decision thereon, and shall deliver the same to the clerk of the
district court.

§ 48. Filing of Appeal.] Said appeal shall be filed by the first day
of the district court next after such appeal, and said cause shall stand
for trial at such term.

§ 49. Trial de novo on appeal.) All appeals thus taken to the dis-
trict court shall be docketed as other causes pending therein, and the
same shall be heard and determined de novo.

§ 50. PowEE OF district COURT.] The district court may make a
final judgment, and cause the same to be executed, or may send the
same back to the board, with an order how to proceed, and require said
board of county commissioners to comply therewith by mandamus, or
attachment, as for contempt.

§ 51. Official settlements required promptly.] All treasurers,
sheriffs, clerks, constables, and other oflicers, chargeable with monev
belonging to any county, shall render their accounte to, and settle with
the county commissioners at the time required by law, and pay into
the county treasury any balance which may be due the county, take

40 Counties and County Officers. Chapter 21,

duplicate receipts therefor, and deposit one of the same with the clerk
of the county within five days thereafter.

§ 52.. Penalty fob neglect to deliver money.] If any person thus
chargeable shall neglect or refuse to render true accounts, or settle as
aforesaid, the county commissioners shall adjust the accounts of such
delinquent according to the best information they can obtain, and
ascertain the balance due the county, and order suit to be brought in
the name of the county therefor; and such delinquent shall not be
entitled to any commission, and shall forfeit and pay to the county a
penalty of twenty per cent, on the amount of funds due the county.

§ 53. County warrants not paid — interest.] All county orders
heretofore drawn,, or that may hereafter be drawn, by the proper author-
ities of any county, shall, after having been presented to the county
treasurer of the respective counties, and by him endorsed, " not paid
for want of funds in the treasury," from said date draw interest a£the
rate of ten per cent, per annum. ^ , v^^ ^- \,^l

§ 54. Record of proceedings to be printed, or posted. It shall be
the duty of the board of county commissioners of the several counties
in this territory, to cause to be published in some newspaper printed
in their respective counties, or, in case no newspaper be printed in
their respective counties, then to be posted up in three public places
in said county, one of which shall be posted up in the office of the
county clerk, a full and complete report of all their ofl&cial proceedings,
of each regular and special meeting held; ^uch proceedings to be so
published or posted as soon after any meeting of the commissioners as
practicable. And the board of county commissioners are hereby
authorized to pay for such publication; Provided^ That such payment
shall not exceed the rate oi one-half the amount authorized by law
for publications of a legal character.

§ 55. County clerk reports proceedings.] It is hereby made the
duty of the county clerk to make out a full and complete report of the
proceedings of each regular and special meeting of the board, and to
transmit the same to the publisher of the newspaper selected by such
boafd to publish such proceedings, said report to oe made out and trans-
mitted by such clerk within one week from the time such proceedings
are had. Such clerk shall be allowed by the board a reasonable com-
pensation for such service.

§ 56. Printed in next issue of paper.] It shall be the duty of the
publisher of any newspaper selected to publish any proceedings of the
board of commissioners of the several counties, to cause any proceed-
ings as aforesaid, received by him from any county clerk, to be pub-
lisned in the issue of his paper next succeeding the time of their
reception.

OF the register of deeds.

§ 57. Instruments recorded — indorsements and foot-notes.] The
register of deeds shall keep a full and true record, in proper books kept
for that purpose, of all deeds, mortgages, bills of sale, chattel mort-
gages, and all other instruments, authorized by law to be admitted tp
record, filed with him for that purpose, provided the person so filing
them for record shall first pay him the fees provided by law for record-
ing the same. When an instrument is filed vsrith him for record, he

Chapter 21.

COUNTIBS AND CoiTNTy OfFICBBS.

41

shall indoree theroon the date, a^d hour, and minute of the day of such
filing, and, when recorded, also the pages and designating letters, or
numbers of the book of records in whicn the recora thereof is made ;
and, in a note at the foot of the record of each instrument of whatever
kind recorded by him, he shall write the date of the hour and minute
of the day when it was filed with him, and the numbers of the pages
on which it is recorded.'

§ 58. NuHSBiOAL INDEX EEQUiRBD.] The registers of deeds shall
prepare from the records of their offices respectively, and shall here-
after keep a numcirical index of the deeds, mortgages, and other instru-
ments of record in their respective offices affecting or relating to the
title to real property, in lieu of the indexes by names of grantors and
grantees, as now kept.

§ 59. Separate indices of deeds and liens — forms.] There shall
be prepared and kept one index of the deeds and contracts and other
instruments, not liens merely, and another index of the mortgages and
other liens, which indexes shall be substantially, or as near as may be,
in the following forms:

FORM OF NUMERICAL INDEX TO CITY AND TOWN

PROPERTY.

BLOCK No. 1, IN

No. of Lot.

•

1

•

•
)fi

£

•

&
£

1

1

•

i

•

•

£

•

0*

■

>

i

0*

•

1

Page.

•

1

1

2

8

4

5

V ■ • •

• • • «

• • • >

6

r

8

9

• • • ■

s • • •

• « • ^

\

10

11

IS

It

U

*

15

16

*

• • * •

* '

17

, *..; •

18

• ■ • •

« • ■ •

■ • •

....

• ■ ■ •

42

Counties and County Owicers.

Chapter 21.

FORM OF SECTIONAL SYSTEM OF NUMERICAL INDEX TO

REAL ESTATE.

TOWN

SHIP Ko

RANGB No BIOt*IOM Ko

No. of Section.

(Quarter Bee.

Part <^. Bee.

•

o

>

•

60

•

O
>

04

•

>

i

04

^9

O
>

§

"o
>

•

1

* • • a

•

>

•

1

i

1

' N. B

N. £. Qaartar.

1

■ ■ •

• ■ -

« • • •

• • • ^

N.W. Qparter.

■

■

8.W. (Quarter.

8. B. Qaarter.

'

....

■ • • •

1

N. W

N. E. Quarter.

N.W. (garter.

•* •

1

Oa VV. ••.•..

8. W. Qoarter.

«• f •

1

1

S. B. Quarter.

•

,

N. B. Quarter.

1

• *

N.W. Quarter.
8.W. Quarter.

1

1

• ■ * *

i

• • • ■

8. B. Quarter.

j... .

*

1

•

> ■

8. S

N. B. Quarter.

. •

•

1

1

N.W. Quarter.

1
1

8. W*4tt»rter.

■ •

1 ..

8. B. Quarter.

§ 60. Compensation for making index — obetain counties exobpt-
BD.] For the making and preparing of the index to the instruments
now of record, the registers of deeds shall be allowed by the county
commissioners, and paid out of the county treasury of their respective
counties, such just sum as shall be reasonable and proper, and for
keeping such indexes hereafter they shall receive no compensation
beyona their fees now allowed, or that may hereafter be allowed, for
the recording of instruments, the indexing being a part of their duties
, in recording the instrument; Provided, however, That it shall be dis-
cretionary with the board of cou/ity commissioners of the counties of
Union, Bon Homme, Minnehaha, Brookings, Burleigh and Clay, as to
whether they will adopt the foregoing provisions relating to a numer-
ical index.

OF THE COUNTY CLERK.

§ 61. Register of deeds is county clerk.] The register of deeds,
and his deputies duly appointed, shall be ex officio county clerk and
deputies thereof respectively; and he shall be liable on his official oath
and bond as register of deeds, for the due and faithful performance of
the duties of county clerk.

§ 62. Must keep record of board.] The county clerk shall attend
the sessions of the board of county commissioners, and keep a true
and full record of their proceedings in books to be provided for that
purpose.

§ 63. General duties of clerk.] He shall do, perform, and trans-
act all county business without any extra or greater compensation

Chapter 21. CoimTiBS and Cottnty Officers. 43

than is allowed by law ; and shall keep all the books required to be
kept by the county commissioners; shall file and preserve in his office
all accounts, vouchers, and other papers pertaining to the settlement
of any and a|l accounts to which the county shall be a. party, copies
whereof, certified under the hand and seal of the clerk, shall be admit-
ted as evidence in all courts in this territory.

§ 64. Clerk's election duties.] The county clerk shall perform
all the duties required of him by law relative to the making out and
delivering notices of special and general elections, making abstracts
of and canvassing the votes cast at any special and general election,
issuing certificates of election to members of the legislative assembly,
county, and precinct officers, and forwarding the abstracts of votes
cast at general or special elections to the secretary of the territory. \,7 ^<^' *\<^v

, QF THE SHERIFF.

§ 65, Sheriff — general duties.! The sheriff shall keep and pre-
serve the peace within his county, for which purpose he is empowered
to call to his aid such persons, oi* the power of his county, as he may
deem necessary. He must also pursue and apprehend all felons; and
must execute all writs, warrants, and other process from the -district
court, or from a justice of the peace, which shall be directed to him
by legal authority. He ghall attend at the district court, and the ses-
sions of the board' of county coinrtiissioners, when required by the
latter to attend.

§ 66. Must post election noticjss.] He shall serve or post up all
notices he may receive from the county clerk or the board of county
commissioners, give notice of special and general elections, and shall
keep his office at the county seat.

of the CORONIER

§ 67. Coroner succeeds sheriff - when.] When there shall be no
sheriff or deputy sheriff in any organized county, it shall be the duty
of the coifbne* in 6uch cdunty, to exercise all the powers and duties of
that office until the same shall be .filled as provided by law; and when
the sheriff shall be committed to jail, or otherwise disqualified, the
coroner shall be the keeper of the jail, and perform the duties of sheriff
during the continuance thereof. W hen the sheriff is sued, the coroner
shall serve the papers on him, and his return on all papers served by
him shall have the same credit as the sheriff 's return ; and he shall
receive the same fees as the sheriff for like services.

§ 68. Inquest on dead by unlawful btbans.] The coroner shall
hold an inquest upon the dead bodies of such persons only as are sup-
posed to have died by unlawful means. When he has notice of the
dead body of a person, supposed to have died by unlawful means,
found, or being ih his county, he is requested to issue his warrant to
the sheriff, or any constable of his county, requiring him to summon
forthwith three electors, having the qualifications of jurors, of the
county, to appear before the coroner at a time.jiiid place named in the

warrant. <X. ^i* ^* »\^ v

§ 69. WAAHtANT FOE JURORS.] That warrant may be in substance
as follows: » .

44 CouNTiBS AND CouNTT Offiobbs. Chapter 21,

Territory op Dakota, )^
County. )

To the sheriff or any constable of said county : — In the name of the people of the Territory
of Dakota, you are hereby required to summon forthwith three electors, having the qualifica-
tions of jurors, of jour county, to appear before me at (name the place,) al (name the day and
hour, or say forthwithO then and there to hold an inquest on the dead body of. .^. ., there lying,
and find by what means he died.

"Witness my hand this day of 18. . .

A. B., Coroner of county.

§ 70. Completing jury, and oath.] If any juror fails to appear, the
coroner shall cause the proper number to be summoned and retumed
from the bystanders, immediately proceed to empanel them and
administer the following oath, in substance:

You do solemnly swear (or affirm) that you will diligently ]n(}uire, and true presentment
make, when, how and by what means the person whose body mre lies dead came to hia death,
according to your knowledge and the evidence given you.

§ 71. Witnesses attendance — contempts.] The coroner may issue
subpoBnas within his county for witnesses, returnable forthwith, or at
such time and place as he shall direct, and witnesses shall be allowed
the same fees as in cases before a justice of the peace; and the coroner
has the same authority to enforce attendance of witnesses, and to
3unish them and jurors for contempt in disobeying his process, as a
ustice of the peace has when his process issues in behalf of the
;erritory.

§ 72. Oath to witnesses.] An oath shall be administered to the
witnesses, in substance as follows:

You do solemnly swear that the testimony which you shall give to this inquest concerning the
death of the person here lying dead shall be the truth, the whole truth, and nothing bat the truth.
So help you God.

§ 73. Testimony subsoeibed.] The testimony shall be reduced to
writing under the coroner's order, and be subscnbed by the witnesses.

§ 74. Return by jury — form.] The jurors having inspected the
body, heard the testimony and made all needful inquiries, shall return
to the coroner their inquisition in writing, under tneir hands, in sub-
stance as follows, and stating the matters in the following form sug-
gested, as far as found :

Territory of Dakota, \
County. P®'

An inouisition holden at in county, territory

aforesaid, on the day of A. D. 18 before ,

coroner of the said county, upon the body of ^ .(or person unknown)

there lying dead, by the jurors whose names are hereto subscribed. The said Jurors upon their
oaths ao say (here state when, how, by what person, means, weapon, or accident, he came to his
death, and whether feloniously.)

In testimony whereof, the said Jurors have hereunto set their hands, the day and year
aforesaid.

(Which shall be attested by the coroner.)

§ 75. Criminals name not disclosed.] If the inquisition find that
a crime has been committed on the deceased, and name the person
whom the jury believe has committed it, the inquest shall not. be made
public until after the arrest directed in the next section.

§ 76. • Coroner may order arrest.] If the person charged be present,
the coroner may order his arrest by an ofl&cer or any other person
present, and shall then make a warrant requiring the ofl&cer or other
person to take him before a justice of the peace.

Chapter 21. Coukties and County Offictbrs. 45

§ 77, Mat ibsub warrant.] If the person charged be not present,
and the coroner believe he can be taken, the coroner may issue a war-
rant to the sheriff and constables of the county, requiring them to
arrest the person and take him before a justice of the peace.

§ 78. Warrant rbturnablb to justice.] The warrant of a coroner
in the above case shall be of equal authority with that of a justice of
the peace, and when the person charged is brought before the justice,
t^e same proceeding shall be had as in other cases under complaint,
and he eAiall be dealt with as a person under a complaint in the usual
form in criminal cases.

§ 79. Warrant to rbcite verdict. The warrant of the coroner
shall recite substantially the transactions before him, and the verdict
of the jury of inquest leading to the arrest, and such warrant shall be
sufficient foundation for the proceedings of the justice, instead of a
complaint.

§ 80. Return by coroner.] The coroner shall then return to the
di^^ict court the inquisition, the written evidence, and a list of the
witnesses who testified material matter.

§ 81. DrspoBiTtON OF BODY ; PAYMENT OF EXPENSES.] The coroucr
shall cause the body of a deceased person, which he is called to view,
to be delivered to his friends, if any there be; but if not, he shall cause
him to be decently buried, and the expense to be paid from any prop-
erty found with his body; or, if there be none, from the county treasury,
by certifying an account of the expenses, which, being presented to the
board of county commissioners, shall be allowed by tnem, if deemed
reasonable, and paid as other claims on the county.

§ 82. When justice may act as coroner.] When there is no coro-
ner, and in case of his absence or inability to act, any justice of the
peace of the same county is authorized to perform the duties of coro-
ner in relation to dead bodies, and in such case he may cause the per-
son charged to be brought before himself by his warrant, and may
proceed with him as a justice of the peace.

§ 83. Physicians may be summoned.] In the above inquisition by a
corcmer, when he or the jury deem it requisite, he may summon one
or more physicians or surgeons to make a scientific examination, and
shall allow, in such* case, a reasonable compensation instead of witness
tees.

I 84. DiBPOBiTiON OF PROPERTY ON BODY.] The corouer must, within
thirty days after an inquest upon a dead body, deliver to the county
treasurer any money or other property which may be found upon the
body, unless claimea in the meantime by the legal representatives of
the deceased. If he fail to do so, the treasurer may proceed against
him for its recovery, by a civil action in the name of tne county.

§ 85. Trbasubbr's duty with property.] Upon the delivery of
money to the treasurer, he must place it to the credit of the county.
If it be other property, he must, within thirty days, sell it at public
auction, upon reasonable public notice, and must in like manner place
the proceeds to the credit of the county.

§ 86. Money, when and how paid.1 If the money in the treasury
be demanded within six years by tne legal representatives of the
deceased, the treasurer must pay it to them after deducting the fees
and expenses of the coroner of the county in relation to the matter;

46 CoiTNTiBS AND CoiiNTy OpFiCMts. Chapter 21^

or it may be paid at any time thereafter upon the wder of = the board
of county commissioners or supervisors.

§ 87. Statement by coroner.] Before auditing and allowing the
account of the coroner, the board of county commissioners musfc
require from him a statement in writing of ajiy money or o>ther piwp-
erty found upon persons on whom inquests have been held by him,
verified by his oath, to the effect that the statement is true, and that
the money or property mentioned in it has been delivered to the
legal representatives of the deceased, or to the county treasurers

OF THE ASSESSOR.

§ 88. Duties ov ASs:fis80R.] The assessor shall perform all and
singular, the acts and duties which now are or may b^' hereafter pre-
scribed by law for assessors to perform.

OF THE PROBATE COURT AND THE JUDGE THEREOF.

§ 89. Probate courts — record — seal.] There shall be a probate
courts held by the judge of the probate court, in each organizea coun-
ty, which shall have the jurisdiction, and proceed in the manner pro-
vided in the law goveminff proceedings in probate courts, and of
guardian and ward. They shall be courts of record; and shall have
a seal, and the judge thereof shall also be clerk of the said court.

§ 90. Court always open— terms.] The court shall be always open
for the transaction of probate business; and the judge thereof shall
especially attend his office and hold terms of the probate court, bemn-
ning on the first Mondays of January, March, May, July,. September,
and November of each year, and continuing so long as shall be neces-
sary.

§ 91. Office, furniture, records.] The judge of the probate court
shall keep his office at the county seat in such rooms as the county may
provide, and his office shall be kept open at reasonable hours. He shall
safely keep all the papers, books and records of his office, or relating
to any case or business of the probate court, or before him as judge
thereof, and receive and pay out, according to law, any money which,
by law, may be payable to him. The county shall provide such tables,
desks, cases for books and papers, and all necessary books and papers,
and books of record and other property or furniture required for the
office. . •

§ 92. Judge not counbbl-^-whbn.] A judge of the probate court
shall not be counsel or attorney in any civil action for or against toy
executor, administrator, guardian, trustee, minorj or other person* over
whom or whose accounts he has, or by law would have, jurisdiction,
whether such action relates to the business of the estate or not.

OF THE TBEA^SURE^.

§ 93. Treasurer's general duties.] It shall be the duty of the
county treasurer to receive all moneys belonging to the county, from
whatever source they may be derived, and other moneys which by law
are directed to be paid to him, and all moneys received by him for the
use of the county, shall bie paid by him only on the Warrant of the board

Chapter 21. Countm^s ai^d County Offiosj&s. 47

of Gounty oommissioR^rp dr£iwn according to law, and all other moneys
shall be paid over by him as provided by law,

§ 94, Method and pubucitv of accounts.] He shall be the collector
of taxes; shall keep his office at the county seat, and shall attend his
of&ce three days in each week. He shall be charged with the amount
of all tax lists m his hands for collection, and credited with the amounts
collected therepn, and the delinquent list, 'and shall keep a fair and
accurate current account of the moneys bv him received, showing the
amount thereof, the time wl^qn, . from whom, and on what account
received, in cash, warrants, county or road orders; and if in warrants
or orders, their kindy nrjmber, or other designation, amounts for which
they were drawxL interest due thereon, and the amounts of the receipts
thereon indorsed, if any; also of all disbursements by him made,
showing the time when, to whom, on what account, and the amount
paid; and he shall so arrange his books that the amounts received and
paid on account of each separate and distinct fund or appropriation,
shall be exhibited in separate and distinct columns, or accounts, ana
so as to show whether the same was received or paid in cash, or war-
rants, or orders, and if either of the latter, their designation and other
particulars as above required; and the county treasurer shall at all
times exhibit such accounts, when desired, to the territorial, county, or
school officers, entitled to receive the same^ and shall at any time pay
over the balance in hig hands to them, upon receiving proper vouchers.

% 95. BoABD sxamin:e:s a^d settles accounts.] The books, accounts,
and vouchers of the county treasurer, and all moneys, warrants or
orders remaining in. the treasury? shall at all times be subject to the
inspection and examination of thp board of coimty commissioners, and
at the regular meetings of the bpard in January and July of each year,
and at such other times s^s ih^y 'may direct, he shall settle with them
his accounts as trea^ur.er, and for that purpose shall exhibit to them
all his books, accounts, and moneys, and all vouchers relating to the
same, to be audited ap^d . allowed, which vauchers shall be retained by
them for evidence of his settlement; and if found correct, the accounts
shall be so certified; if not, he shall be liable on his bond.

§ 96. To INSURE COUNTY PBOPBBTY.l When directed by the board of
county commissioners he shall cause tp b^ insured, at the charge of the
countj^, any or all of the public buildings and property belpnging to the
same, in the name of himself as ireasurei: ana his successors in office,
or otherwise, as said board may direct; and in case of the destruction
or damage of the buildings or property so insured, Such treasurer shall
demand and receive the moneys drie on account of such insurance, and
pay the same into the county treasury, and such moneys shall be applied
to the fund for rebuilding or restoring such buildings or property.

OF THE COUNTY SURVEYOR.

§ 97. Survbyor's general duties,] The county surveyor shall
make, in a good and professional manner, all surveys of lands within
his county which he may be called upon by the owner thereof, or his
representative, or directed by the district or probate courts, or the
board of county commissioners, to make; and, also, all lands, tracts or
lote owned by the county, and public roads, when so directed by said
board; and his surveys snail be neld as presumptively correct.

48

COITNTIES AND CoUNTY OfFIOEES.

Chapter 21.

§ 98. Record of notes and plats.] He shall transcribe • the field
notes and plats of such surveys into convenient and substantial record
books to be furnished by the county, when the board of commissioners
shall deem it advisable, and said records shall be entered in an orderly-
manner, easy of reference, and shall be delivered to his successor in
office. They may be kept in the office of the county clerk, and said
record shall be competent evidence in all courte of the fects therein
set forth.

§ 99. Method of be-subvey and subdivision.] The re-survey and
subdivision of lands by all surveyors shall be according to the laws of
the United States, and the instructions issued by the omcers thereof in
charge of the public land surveys, in all respects; and in the subdivision
of fractional sections, bounded on any side by a meandered lake or
rivefj or the boundary of any reservation or irregular survey, the -sub-
division lines running toward and closing upon the same shall be ran
at courses in all joints intermediate and eaui-distant, as near as may
be, between the like section lines established by the original survey.

§ 100. Sworn chainmen in disputed cases.] Whenever the survey
made is of lines and monuments in dispute between parties, or by order
of the district or probate courts, the chainmeii must be disinterested
persons, approved and sworn by the surveyor to measure justly and
impari^ially to the best of their skill and ability.

8 101. Fullness and accubaoy of notes and <>lat8.] The record of
the field notes and plats shall show distinctly of what piece of land it
is a survey, at whose request it was made, what owners were notified
and present, the date of the survey, the names of the chainmen, and
that they were approved and sworn by the surveyor, when so re(juired
by law. The courses shall be taken according to the true niendian,
and the variation of the magnetic needle therefrom, shall be noted,
and also whenever any material change therein shall occur.

§ 102. Retbacing lines to avoid ebbobs.] In retracing lines or
making any survey, he shall take care to observe and follow tne bound-
aries and monuments as run and marked by the original survey, btit
shall not give undue weight to partial and doubtful evidences or
appearances of monuments, 'the recognition of which shall require the
presumption of marked errors in the original survey, and he shall note
an exact description of such apparent monuments.

§ 103. Assistants — how paid.] All necessary chainmen and other
assistants must be paid for their services by the person for whom the
survey is made, unless otherwise specially agreed.

Chapter 22. Vacancies in Office and Supplying Same. 49

CHAPTER XXII,

Vacancies in Office and Supplying Same.

RESIGNATIONa

§ 1. Resignations, to whom hade.] Resignations may be made as
follows:

1. Of all territorial and district officers, to the governor.

2. Of all members of the legislative assembly, to the presiding officer
of their branches respectively, when in session; ana when not in
session, to the governor; ahd when made to the presiding officer, he
shall at once notify the governor thei-eof

3. All the officers of the legislative assembly, to the respective
branches thereof.

4. Of all elective county officers, to the board of county commission-
ers, except of .county commissioners, which shall be made to the
county clerk. ^- \^7 oi. A'^V

5. Of officers of civil townships, to the board of supervisors of the
township, except of members of said board, which shall be to the town-
ship clerk; and notice shall forthwith be given by the township clerk
to the clerk of the district court of the resignation of all officers
whose bonds are filed with that officer.

> 6. Of all officers holding their office by appointment, to the body,
board, court, or officer that appointed them.

OF VACANCIES.

§ 2. Events causing vaganoies.] Every office shall become vacant
on the happening of either of the follo¥dng events, before the expira-
tion of the term of such office:

1. The death of the incumbent.

2. His resignation.

3. His removal from office.

4. Failure to qualify as provided by law.

5. His ceasing to be a resident of the territory, district, county,
township or precinct in which the duties of his office are to be exer-
cised, or for which he may have been elected.

6. His conviction of any infamous crime, or of any offence involv-
ing a violation of his official oath.

7. Whenever a judgment shall be obtained against him for a -breach
of his official bond.

OF REMOVALS.

§ 8. Causes for removal of certain classes op oppicers.] All
elective county, township, and precinct officers may be charged, tried,
and removed from office for either of the causes following :

1. Habitual or willful neglect of duty.

2. Gross partiality.

X

50 Vacancies in Offiob and Supplying Samb. Chapter 22.

3. Oppression.

4. Extortion.

5. Corruption.

6. Willful maladministration iu office, .

7. Habitual drunkenness.

8. For a failure to produce and account for all public funds and

f)roperty in his han4s at any settlement or inspection authorized by
aw. ' ' ' .

§ 4. Who may bring action.] The board of county commissioners
in the name of the county, or any person in his own name, may make
such a (jharge and bring the action, and the district court shall have
exclusive original jurisdiction thereof. The proceedings shall be as
provided in the codes of civil and criminal procedure.

§ 5. Court may suspend officerJ If the cause be continuad, ^^^
court may suspjend the accused from the functions of his office until
the determination of the matter, if sufficient cause appear from testi-
mony or affidavits then presented; and if such suspension tiake place,
the board of county commissioners shall temporarily fill the office by
appointment. ^k.\:l^<^^^\

§ 6. Question tried as in other actions.] The question of fact
shall be tried as in other actions, and if the accused is found guilty,
judgment shall be entered removing the officer from his office, and
declaring the latter vacant, or as provided for in the code of criminal
procedure; and a copy thereof shall be certified to the board of county
commissioners, and the county clerk shall enter the same upon the
proper record.

§ 7. Property delivered to successor.] Upon the death, resigna-
tion, suspension, or removal from office of any officer, all books and
papers belonging to his office, and all moneys in his hands, and all

Sroperty of whatever kind, held by him by virtue of his office, shall be
elivered to his successor.

OF filling vacancies.

§ 8. Vacancies pilled by appointment J . All vacancies, except in
the offices of members of the legislative assembly, shall be filled by
appointment, as follows:

1. In the territorial and district officers, by the governor,

2. In county and precinct officers, by the board of county commis-
sioners, except vacancies in said board.

3. In officers of civil townships, by the justices of the p^tce of the
township, together with the board of supervisors, or a majority of
them, by warrant under their hands; and if a vacancy occurs from
any cause in the foregoing board of appointment, the remaining
officers of such board shall fill any vacancy therein.

§ 9. Filling vacancy in county board.1 When a vacancy occurs in
the board of county commissioners, it shall be the duty of the remain-
ing member or members of said board, with the judge of the probate
court and county clerk, to immediatelv appoint some suitable person
to fill such vacancy from the district wnere the vacancy occurs.

§ 10. Brief vacancies not to be fillbd.1 If a vacancy ocicurs
thirty days previous to an election day, at which it may be filled, no

Chapter 23.

Civil Towkships,

51

appointm^it shall be made unless it be necessary to carry out said- elec-
tion, and the canveiss of the same according to law; in that case an
appointment may be made at any time previous to said election, to
hold until after said election^ or until his successor is elected and
qualified.

§11. ApgpoiNTiiBilTS IN iimiTdiiG— TERM.} Appointments under the
provisions of this act shall be made in writing, and made to continue
until the next general election, at which the vacancy can be filled, and
until a saccedsor is elected and qualifiied, to be filed with the secretary
of tiie territory, or in the proper county offices respectively.

§ 12. AppoufTBis — HOW QUALxineD.] Persons appointed to offices
as herein provided, shall qualify in the same manner as is required
of those elected, the time of which shall be prescribed in their
appointment.

«<«*«

CHAPTER XXIII.

Civil Towiisliips.cl.-i^^^^^i?

ORGANIZATION OP CIVIL TOWNSHIPS. ^ / ? » '• '' "

§ 1. Township organization adopted by vote op county.] When-
ever the county commissioners of any county shall deem it expedient
they may submit, at a special election called for that purpose, at least
sixty daysvbefore any general election, the question whether the system
of township government, as hereinafter provided, shall be adopted in
said county, and at such special election there shall be written or
printed on the ballots the words, *Tor township organization," or,
''Against township organization."

§ 2. Whole county divided by cohmissionees.] If a majority of
votes cast at such election shall be in favor of township organization,
the board of county commissioners shall immediately proce^ to divide
the county into civil townships, fix and determine the boundaries
thereto, and number the same, and in so doing shall have regard to
natural boundaries and topo^aphy, and may at any time thereafter
alter and change the same; Provided, That the number of civil town-
ships shall not exceed the number of congressional townships, or frac-
tional parts thereof greater than one halt, in any county.

% 3. SxLECTQcoN OP TOWNSHIP NAMES.] At the first towuship meeting,
which shall be on the day of the next general election, held under the
provisions of this chapter, the electors of each township shall choose
by ballot a name for their respective townships to be substituted in
lieu of the number fixed by the board, ivhich shall be recognized by
the board, and entered upon their records, after which such township
shall be known and designated in law by the name so selected; ana
should the electors of any township fair to choose a name, as provided,
the board shall select one and so record it.

52 Civil Townships. Chapter 23.

§ 4. County olsbk bspo&ts flats and nambs.} The county clerk
shall, within thirty days afber the first township elections held under
the provisisns of this chapter, transmit to the territorial auditor a plat
of the county showing the boundaries and name of each civH town-
ship therein, and shall record a copy of the same, together with all the
acte and proceedings done or had nereunder, in a bcnxk to be kept for
that purpose.

g 5. AuixCTOR TO BBTUBN DUFLiCATE NAMB8.} If the auditor, ou Com-
paring the report with those previously made from other counties,
finds that any two or more townships have the same name, he shall
transmit to the county last adopting the township organization the
name of the township to be altered, and the board of county commis-
sioners shall at their next meeting thereafter adopt for such township
some name diflterent from those theretofore adopted, so that no two
townships organized under the provisions of this chapter shall have the
same name, and when such name is adopted the county clerk shall
inform the auditor thereof, as before directed, and note the same in the
county record.

§ 6. Present townships remain.] The limits, boundaries and or^an-
ization of every organiisad township shall remain as now established,
until otherwise provided by the board of county commissioners, as pro-
vided by law, and in any county hereafter organized into civil
townships under the provisions of this chapter, there shall be elected no
coui^ity jui^tices of the |)6ace, constables or assessor, and all provisions
of law relating to county government in conflict with the provisions
of this chapter, shall not apply to each county.

OP THE CORPORATE POWERS OP OIVIL TOWNSHIPS.

§ 7. Township body corporate — powers.] Each civil township is a
body corporate for civil and political purposes only, and as such has
power and capacity:

1 . To sue and be sued.

2. To purchase and hold lands within its own limits, and for the
public use of its own inhabitants, subject to the powers of the legisla-
tive assembly.

3. To make such contracts, purchase and hold such personal property
as may be necessary for the exercise of its corporate or administrative
powers.

4. To make such orders for the disposition, regulation or use of its
corporate property as may be deemed conducive to the interests of its
own inhabitants.

§ 8. Powers liicited to those orantep.] No civil township shall
possess or exercise any corporate powers except such as are enumerated
in this chapter, or are especially eiven by law, or necessary to the exer-
cise of the powers so enumerated or granted.

§ 9. Township acts By name.] All acts or proceedings by or
against a township in its corporate capacity shall be in the name of
such township, but every conveyance of land within the limits of such
township, made in any manner for the use and benefit of its inhabit-
ants, has the same effect as if made to the township by name.

Chapter 23. Civil Townships. 58

POWERS OF BI4ECTOB8.
§ 10. EjUBCTOBa aiVK PQWI^B QVKE pounds, OFFICSB^i ACTIQNS, TAXES,

RULSS, PENALTIES,, AND B0AD8.] The cleotors of 6adi township shall
have power at thejir annual township meeting: t

1. jTo determine the number of pound. masters, and the location of
pounds. .

' 2. To elect such township ojficers as are required to b^ qhosen.

3. To direct the institution or defense of actions iA.all controversies
where such township is interested.

4. To direct such sums to be raised in such township for prosecuting
or defending such actions as they may deem necessary.

5. To make rules and regulations for impounding animals in such
townships.

6. To impose such nenalties on persons offending against any rule
or regulation establisned by said townships, as they may think proper,
not exceeding ten dollars for each offense, unless herein otherwise pro-
vided.

7. To apply such penalties, when collected, in such manner as they
deem most conducive to the interests of the township.

8. To vote to raise such sums of money for the repair and construc-
tion of roads and bridges, for the support of the poor, and for other
necessary township charges, as they deem expedient; Providedy That
they may, at their annu^Q township meeting, direct such an amount
of the poll and road tax of the township to be expended on the
highways of an adjoining township as they deem conducive to the
interests of the township; which labor and tax shall be expended
under the direction of the supervisors of the township furnishing the
same.

OP TOWNSHIP MEETINGS.

§ 11. Township meetings annual.] The citizens of the several
townships Qualified to vote at general elections, shall annually assem-
ble and hold township meetings in their respective townships, on
the day and at the place designated for holding the general elec-
tion, and at such hour as the electors thereof, at their annual town-
ship meeting, from time to time may appoint.

§ 12. Special meeting— how called.] Special township meetings
may be held for the purpose of transacting any lawfal business when-
ever the supervisors, township clerk, and justices of the peace, or any
two of them, together with at lea«t twelve other freeholders of the
township, file in the office of the township clerk, a written statement
that a special meeting is necessary to the interests of the township.

§ 18. Township clerk gives notice.] Every township clerk with
whom such statement is -filed, as required in the preceding section, shall
record the same, and immediately cattee notices to be posted up in five
of the most public places in the township, giving at least five days'
notice of such special meeting; and if there be a newspaper printed
in said township, he shall cause a copy of said notice to be published
therein at least three days before the time appointed for such meeting.

§ 14. What notice specifies.] Every such notice shall specify the
purpose fot which the meeting is to be held, and no other business

54 Civil Townships, Chapter 23.

shall be transacted at auch special meeting than is specified in such
notice.

§15. MSJETlNOa BETWEEN 9 AND 10 A. M. — HOW OltGANlXftD.] The

electors present at aily time l)etweeii nine arid ten o'clock in the fore-
noon of the day of the annual or special township meeting, or at the
hour appointed by the electors of the township at a former towmship
meeting, shall be called to order by the township clerk, if he be pres-
ent; in case he is not present, then the voters may elect, by accla-
mation, one of their number chairman. They shall then proceed to
choose one of their number to preside as moderator of sucn meeting.
The township clerk last before elected shall be clerk of the meeting,
and keep faithful minutes of the proceedings, in which he shall enter
at length, every order or direction, and all rules arid regulations, made
by such meeting. If the township clerk is absent, then such person
as shall be elected for that purpose, shall act as clerk of the meeting.

§ 16. Okber of business before meeting.] At the opening of every
township meeting, the moderator shall state the business to be trans-
acted, and the order in which it shall be entertained, and no propo-
sition to vote a tax shall be acted oil out of the order of business as
stated by the moderator, and no proposition to reconsider aiiy 'vote
shall be entertained at any township meeting, unless such proposition
to reconsider is made within one hour from the time such vote was
passed, or the motion for such reconsideration is sustained by a num-
ber of voters equal to a majority of all the names entered upon the
poll list at the election up to the time such motion is made ; and all
questions u^on motions made at town meetings shall be determihed
by a majontv of the electors voting ; and the moderator shall ascer-
tain and declare the result of the votes on each question.

§ 17. Qualification of voters.] No person is a voter at a township
meeting unless he is qualified to vote at the general election.

§ 18. Minutes signed by clerk and mqderator.] The minutes of
the proceedinffs of every township meeting shall be subscribed by the
clerK and moderator of said meeting, and shall be filed in the office of
the township clerk within two days after such township meeting.

township officers to be B0)CTBD.

f § 19. Officers of townships blboted.] There shall be elected by
ballot for each township, three supervisors, one of whom shall be des-
ignated on the ballots as chairman, one clerk, one treasurer, one
assessor, two justices of the peace, and two constables, who shall hold
their offices for the term of one year, and until their successors are
qualified, except justices of the peaee and constables^ who shall hold
tneir offices for two years. .
V.^^W- A"! § 20. How AND WHEN OHOSBN.] The officers to be elected by ballot
shall be voted for and named upon the same ballot with county, didteict,
and territorial officers at the general election. All other officei^ if
not otherwise providfed, shall be chosen either by yeas and nays, or by
a division as the electors may determine.

§ 21. Return of votes.] When the votes cast at the geaieral elec^
tion shall have been canvassed, and the number received by each person
voted for, for each office, counted and ascertained, as provided in the

Chapter 23. Civil Townships. 55

general election law, the election board shall, in addition to the return
to the county clerk therein provided, make a separate return in like
manner and form to the township clerk of the persons voted for, and
the votes for each person cast for each township office.

§ 22. Canvass op votbs.] The clerk of every township shall, within
twenty days after each election, taking to his assistance the chairman
of the township board and one lustice of the peace, or these failing,
any other two elective township officers, proceed to canvass said
returns and make an abstract thereof, which shall be signed by the offi-
cers making the same, which shall be filed in the townsnip records by
the clerk.

§ 28. Tie vote determinsd.] In case of a tie vote for any office it
shall be determined by the township clerk in the same manner as pro-
vided for county officers.

§ 24. Notice to eleotbd opfictbbs.] The township clerk shall,
within ten days after the canvass of the votes and the determination of
the i)er8ons elected, transmit to each person elected to any township
office a notice of his election.

§ 25. Othbb officers chosen.] There shall also be chosen by the
electors at each annual township meeting, one overseer of highways,
and one pound master, who shall hold office for the term of one year,
or until their successors are elected and qualified.

§ 26. Qualification of such officers.] They shall qualify by ostth
of office in writing to be filed with the township clerk, and within the
period required for other civil officers. Said oath shall be taken before
the townsnip clerk or justice of the peace, without fee, and certified
by the officer before whom it Was taken, with the date of taking the
same.

§ 27. Supervisors are junoES of election.] The township supervis-
ors of each township shall be the judges of election, aild if there shall
be any vacancy in said board of judges, the electors present shall
choose viva voce from the qualified electors of said townsnip, so many
judges as there shall be vacancies in such board.

§ 28. Clerks of election.] The township clerk shall be clerk of
elections, and the board of judges shall have power to appoint one of
the qualified electors of such township to act as the other clerk of
election.

§ 29. Judges and clerks appointed shall take oath.] Any person
chosen as prescribed in tlie preceding sections to fill any vacancies in
the office of judges or clerks of election, shall, before they enter upon
the duties of their office, take and subscribe to the oath required of
them by law. Said oath shall be taken before the justice of the peace,
or any other officer authorized by law to administer oaths, without fee,
and certified by the officer before whom it was taken, with the date of
taking the same.

miscellaneous provisions.

§ 30. Certifioatb to acts of justice of PBACih-His responsibility.]
The oath and bond of a justice of the peace, filed in the office of the
clerk of the district court for the county or judicial subdivision, are
sufficient authority for said clerk to certify to the official acts and sig-
nature of such justice of the peace; and any person aggrieved by the

56 Civil Townships. Chapter 23.

acts of any such justice of the peace mayf maintaui an action on said
bond in his own name against said jostice and . his sureties.

§ 31. Penalty j^r rbfusal to servbJ. If any townehip officer, who
is required by law to take an oath of office, enters upep the duties of
his office before taking such oath, he forfeits to such township the sum
of fifty dollars.

POWERS OF BOARD OF SUPERVISOR^.

§ 32. Powers of township supervisors.] The board of supervisors
shall have charge of such affairs of the township as are not by law
committed to other township officers; and they shall have power to
draw warrants on .the township for the disbursement of such sums as
may be necessary for the purpose of defraying the incidental expenses
of the township, and for all other moneys raised by the township to .be
disbursed for any other purpose.

§ 33. Power of township over village streets.] Whenever any
incorporated town which is laid out into .streets is included within the
limits of an organized township, the township supervisors are author-
ized to cause improvements to be made in any street that may be
needed as a hijghway, if the corporate autiiorities of such town neglect
to make such improvements.

§34. Supervisors MAT maintain ajotions FOR penalties, ac] The
board of supervisors of anv township shall, by their name of office,
prosecute, for the benefit of the township, all actions upon bond given
to them or their predecessors in office; and shall also sue for and collect
all penalties, fines and forfeitures in respect to which no other provision
is made, incurred by any officer or inhabitant of the township, or aay
other person; and they shall have power, in like mg^nner, to prosecute
for any trespass committed upon any public enclosure or other property
belonging to the township, and shall pay all moneys collected under
this section to tiie township treasurer.

§ 35. Two supervisors a quorum.] Any two of the supervisors con-
stitute a quorum for the performance of any duty required by law of
the townsnip supervisors, except when otherwise provided; Provided^
That when the board of supervisors are equally divided upon any ques^
tion, they shall defer a decision thereof until a meeting of the full
board, and then the question shall be decided by a majority vote of the
board.

§ 36. Police power in villages not incorporated.] Any organized
township, containing any village not incorporated mav enact such ;regu-
lations as may be necessary to restrain all di^rderly conduct witnin
the village, arising from drunkenness or otherwise.

§ 37. Offenses — how punished.] Any person deemed guilty of such
disorderly conduct shall, on complaint of any person ajjgrieved, he-
examined before any justice of the peace of such township, and upon
conviction thereof be fined in the sum of not less than two nor more
than ten dollars, and all costs arising from such complaint and trial,
without process first issuing.

§ 38. Constable may arrest.] Any constable in any such township
shall be a proper officer for arresting and detaining such offending
person.

Chapter 23. Civil Townships. 57

§ 39. Township may providb for confinement of prisoners.] Any
toi?vnship with any such village not incorporated, shall at the annual
tovniship meetinR have power to vote any appropriations necessary
for providing such place of confinement, and shall further add to any
such regulations necessary for carrying this into effect.

§ 40. NoTicjB thereof to be given.] Any township providing such
place of confinement shall cause notice of the same to be publisned in
the newspaper having the largest circulation in such township, if there
be any, or cause the township clerk to post notice thereof in three of
the most public places in said township. ^

§ 41. Convicted persons confined.] Any person convicted under
the preceding sections shall be confined in the calaboose until all fines
and costs are paid, not less than one day, nor more than ten days.

% 42. Township exempt from road and bridge tax.] All townships
or^nized under the provisions of this act shall be exempt from the
payment of a general county tax for road or bridge purposes, and the
supervisors of such township shall levy such tax as they may deem
necessary, not exceeding one per cent, of the assessed valuation of
snch township, to lay out and keep in repair the highways and bridges
therein.

township auditing board.

§ 43. Supervisors are auditing board.] The supervisors shall
constitute a township board for the purpose of auditing all accounts
payable by said township; and, if from any cause, there be not three
supervisors nresent, to constitute said board, the chairman, and in his
ab^nce, eitner of the other supervisors, may notify any one, or so
many of the justices of the said township, as will, together with
the supervisors present, make a board of three: and the board so con-
stituted shall have authority to act as the township auditing board.

g 44. Time for meetings op board.] The tovrasnip board shall meet
annually on the Tuesday next preceding the annual township meeting,
and at such other times as they deem necessary and expedient, for the
purpose of auditing and settling all charges against said township;
and they shall state on ea<;h account the amount allowed by them;
but no allowance shall be made upon any account which does not
specifically state each item of the same, and the nature thereof.

§ 45. Board to examine treasurer's accounts.] The said board
shall also, at their annual meeting in each year, examine and audit the
accounts of the township treasurer for all moneys received and dis-
barsed by him as such officer; and they shall audit the accounts of all
other township officers who are authorized by law to receive or dis-
burse any money of the township by virtue of their office.

§ 46. Board to make report.] Such board shall draw up a report,
stating in detail the items of account audited and allowed, the nature
of each account, and the name of the person to whom snch account
was allowed, including a statement of the fiscal concerns of the town-
ship, and an estimate of the sum necessary for the current expenses
thereof, and other incidental expenses for the ensuine year.

§47. Rbport TO BE read, when.] Such report snail be produced
and publicly read by the township clerk at the next ensuiuff township
meeting, and the whole or any portion of such report may be referrea.

58 Civil Townships. Chapter 23.

by the order of the meeting, to a committee, whose duty it shall be to
examine the same and report thereon to such meeting.

§ 48. Town tbeasurbb to pay accounts.] The amount of any
account audited and allowed by the township board, and the amount
of any account voted to be allowed at any township meeting, shall be
paid by the township treasurer, on the order of said board, signed by
the chairman and countersigned by the clerk; and all orders issued to
any person by the township board for any sums due from such town-
ship, shall be receivable in payment of township taxes of said town-
ship.

TOWNSHIP BOARD OF HEALTH.

§ 49. Board of health, j The township supervisors shall constitute
a board of health, and, within their respective townships, shall have
and exercise all the powers necessary for the preservation of the public
health.

§ 50. Powers and duties of board of health.] The board of health
mav examine into all nuisances, sources of tilth, and causes of sickness,
and make such regulations respecting the same as they may judge
necessary for the public health and safety of the inhabitants; and
every person who snail violate any order or regulation made by any
board of health, and duly published, shall be deemed guiltv of mis-
demeanor, and punished by a line not exceeding one hundred dollars,
or by imprisonment in the county jail not exceeding twenty davs.

§ 51. Board of health to give certain notices.] Notice shall be
given by the board of health of all orders and regulations made by
them, by publishing the same in some newspaper, if there is one
published in such township; if there is none, then by posting up such
notice in five public places therein ; and such publication of said order
and regulations shall be deemed a legal notice to all persons.

§ 52. Nuisances to be removed, by whom.] Whenever any
nuisance, source of filth, or cause of sickness, is found on private
property, the board of health shall order the owner or occupant
thereof, at his own expense, to remove the same within twenty-four
hours; and if the owner or occupant neglects so to do, he shall lorfeit
a sum not exceeding fifbv dollars, to be recovered in the name of and
for the use of the township.

§ 53. Owner liable for expenses.] Whenever such owner or occu-

Eant shall not comply with such order of the board of health, said
oard may cause the said nuisance, source of filthy or cause of sickness,
to be removed, and all expenses incurred thereby shall be paid by the
said owner or occupant, or by such other person as has caused or per-
mitted the same.

§ 54. Board of health may enter building or vessel.] Whenever
the board of health thinks it necessary for the preservation of the
health of the inhabitants, to enter any building or vessel in their town,
for the purpose of examining into and destroying, removing, or pre-
venting any nuisance, source of filth, or cause of sickness, and wall
be refused such entry, any member of the board may make complaint
under oath to a justice of the peace of his township, stating the facts
in the case so far as he has knowledge thereof.

Chapter 23, Civil Townships. 59

§ 55. Who may issub warrant to remove nuisance.] Such justice
shall thereupon issue a warrant, directed to the sheriff or any constable
of the county, commanding him to take sufficient aid, and, being
accomi>anied by two or more of the board of health, between the hours
of sunrise and sunset, to repair to the plac« where such nuisance, source
of filth, or cause. of sickness complained of may be, and the same
destroy, remove, or prevent, under the direction of the members of
such bo^rd of health.

§ 56. Disposition of persons with small pox, ac] When any
person coming from abroad, or residing in any township within this
territory, is infected, or lately has been infected, with the small pox or
other contagious disease, dangerous to the public health, the board of
health of the township where such sick or infected person is, may
immediately cause him to be removed to a separate house, if it can be
done without danger to his health, and shall provide for him nurses
and necessaries, wnich shall be at the charge of the person, his parents,
guardian, or master, if able, otherwise at the charge of the township
to which he belongs; and if he is not an inhabitant of any township,
at the charge of the county.

§ 67. Disposition op persons with small pox, &c. 1 If such infected

Eerson cannot be removed without danger to his health, the board of
ealth shall make provision, as directed in the preceding section, for
such person, in the house where he may be; and in such case, they may
cause the persons in the neighborhood to be removed, and may take
such other measures as they may deem necessary for the safety of the
inhabitants.

§ 58. When board may establish hospital.] When a disease dan-
gerous to the public health breaks out in any town, the board shall
immediately provide such hospital or place of reception for the sick
and infected as is judged best n)r their accommodation and the safety
of the inhabitants, which shall be subject to the regulations of the
board: and the board may cause any sick and infected person to be
removed thereto, unless his condition will not admit of such removal
without dauffer to his health, in which case the house or place where
he remains snail be considered as a hospital, and, with all its inmates,
subject to the regulations of the board.

OF the township clerk.

% 5-9. Township clbrk custodian op records. ) The township clerk
shall have the custody of records, books and papers of the township,
when no other provision is «iade by law; and he shall duly file and
safely keep all certificates of oaths and other' papers required by law
to be filed in his office.

§ 60. Duty op clibrk to keep record.] He shall record in the book
of records of his township, minutes of the proceedings of every town-
ship meeting, and he shall enter therein every order or direction, and
all rules and regulations of any such township meeting; and shall also
file and preserve all accounts audited by the township board, or
^Ulowed at ^ township meeting, and enter a statement thereof in such
book of records.

§ 61. Township olerk to give bonds.) Every person elected or
ai^inted to the office of township clerk of any of the townships of this

60 CnriL Townships. Chapter 23,

territory, shall, before he enters upon the duties of his office, anci
within the time prescribed by law for filing his oath of office, execute
a bond, with two or more sufficient sureties, to be approved by the
township treasurer, in such penal sum as the supervisore direct, con-
ditioned for the faithful discharge of his duties. Said bond so approved
shall be filed in the office of the county clerk for the benefit of any
person aggrieved by the acts or ommissions of said township clerk, ani
any person so aggrieved, or the township, may maintain an action on
said bond against said township clerk and sureties.

§ 62. Township clerk to notify county clekk orf election.] Every
township clerk, immediately after the qualification of any constable,
elected or appointed in his township, shall transmit to the county
clerk the name of such constable.

§ 63. Township olerk to notify county clerk of election.] Each
township clerk shall, immediately after the election of any justice of
the peace in his township, transmit a written notice thereof to the
county clerk, stating therein the name of the person elected, and the
term for which he is elected; and if elected to nil a vacancy, he shall
state in said notice who was the last incumbent of the office.

§ 64. Penalty of neglect.] If any township clerk willfully
neglects to make such return, such omission is hereby declared a mis-
demeanor, and on conviction thereof, ihe person so offending shall be
adjudged to pay a fine not exceeding ten dollars.

§ 65. Clerk to notify ^jounty clerk of taxes levied.] The town-
ship clerk shall be the clerk of the township board, and shall keep a
true record of all their proceedings, in his office, and it shall be nis
duty to forward to the county clerk, on or before the first Monday in
July of each year, the rate per cent, of all taxes voted by the town-
ship, and the county clerk shall then extend the tax according to the
rate per cent, on the tax books, and the same, when so extended, shall
be collected as other taxes, and credited to the proper township.

§ 66. Town treasurer to collect and pay money.] The township
treasurer shall receive and take charge of all moneys belonging to
the township or which are by law required to be paid into the town-
ship treasui-y, and shall pay over and account for the same uj)on the
order of such township or the officers thereof, duly authorized in that
behalf, made pursuant to law, and shall perform all such duties as
may be required of him by law.

§ 67. Method and publicity of accounts.] Every township treas-
urer shall keep a true account of all moneys by him received by virtue
of his office, and the manner in which the same are disbursed, in a
book provided at the expense of the township for that purpose, and
exhibit such account, together with his vouchers, to the township
board at its annual meeting, for adjustment; and he shall deliver all
books and property belonging to his office, the balance of all moneys
in his hands as such treasurer, to his successor in office, on demand,
after such successor has qualified according to law.

§ 68. To receive and receipt for moneys.] The to wnship treasurer
shall from time to time draw from the county treasurer such moneys
as have been received by the county treasurer for the use of his town-
ship, and on receipt of such moneys shall deliver proper vouchers
therefor. Each township treasurer shall be allowed and entitled to

Chapter 23. Civil Townships. 61

retain two per centum of all moneys paid into the township treasury,
for receiving, safe keeping, and pajring over the same according
to law.

g 69. Annual bspobt of treasurer in detail.] Each township
trrasurer, shall make out and present to the township board on the
Tuesday next preceding the annual township meeting, a statement in
writing of the moneys by him received into the township treasury
finom.' the county treasurer, and from all other officers and persons, and
also of all moneys paid out by him as such treasurer, in which state-
ment he shall set forth particularly from whom and on what account
such moneys were received bv him, with the amount received from
each officer or person, and the date of receiving the same; also to
whom and for what purnose any moneys have been paid out by him,
with the amount and date of each payment. He shall also state
therein the amount of moneys remaining in his hands as treasurer.
Such statement shall be filed by him in the office of the township
clerk, and shall be by such clerk carefully preserved and recorded in
the township book of records.

§ 70. Penalty for neglect.] Every township treasurer who refuses
or neglects to comply with the provisions of the four preceding
sections, shall forfeit not more than two thousand dollars, to be;
recovered in any court of competent Jurisdiction, the amount to be
fixed by the jury trying the cause, or by the court, if there is no jury
empaneled, and may be recovered by civil action, in the name of the
person who prosecutes the same, with costs of suit; one half shall go
to the person so prosecuting, and the remainder to the township of
which said delinquent is or has been treasurer.

COMPENSA.TION OF TOWNSHIP OFFICERS.

§ 71. What oFncERs are entitled to compensation, and amount op
FBBS.] The following township officers are entitled to compensation at
the following rates for each day necessarily devoted by them to the
service of the township, in the duties of their respective offices. The.
township assessors shall receive for their services two dollars per day,
while eneaged in their respective duties as such assessors. The town-
ship cleA and supervisors shall receive for their services one dollar
and fifty cents per day, when attending to business in their township,
and two dollars when attending to business out of township; no town-
ship supervisor shall receive more than twenty dollars, for compensa-
tion, in anv one year; Provided, That the township clerk shall be-paid
fees for the following, and not a per diem: For serving notices of
election upon township officers, as required by law, twentj^-five cents
each; for filing any paper required by law to be filed in his office, ten
cents each; for posting up notice required by law, twenty-five cents
each; for recording any order or any instrument of writing authorized
by law, six cents for each one hundred words; for copying any record
or instrument on file in his office, and certifying the same, six cents for
each one hundred words, to be paid for by the person applying for the
same; Provided, further, That at any township meeting, before the
electors commence balloting for officers, they may by resolution reduce
or increase the compensation of officers, but no such increase shall
exceed one hundred per cent.

62 Civil Townships. Chapter 23.

§ 72. Duties and pebs of pound master and disposition op impouni>-
ED animals.] The pound master is allowed the following fees, to- wit :
For taking into pound, and discharging therefrom, any horse, ass or
mule, and all neat cattle, ten cents each. For every sheep or lamb,
three cents each; and for every hog, large or small, five cents; and
twenty cents for keeping each head twenty-four hours in pound. And
the pound master has u lien on all such animals, for the full anxonnt
of his legal charges and expenses, and shall be entitled to the posses-
sion of such animals until the same are paid; and if the same are not
paid, and said animals removed within four days after they are so
impounded, the said pound master shall ^ve notice, by posting the
same in three of the most public places m said township, that said
animals (describing them,) are impounded, and that unless the same
are taken away and fees paid, within fifteen days after the date of
such notice, he will sell the same at public vendue, at the place where
the township meetings of said township are usually held; and on the
day designated in such notice, the said pound master shall expose the
said animals for sale, and sell the same to the highest bidder in cash,
for which services he shall receive two per cent, of the purchase
money for each animal. Out of the moneys realized from said sale,
the said pound master shall deduct all his legal fees and charges, and
pay the balance, if any, to the chairman oi the board of township
supervisors, at the same time sriving to said supervisors, an accurate
description of the animals sold, and the amount received by him for
each animal, and shall take a receipt and duplicate therefor, and file
one of them with the township clerk; Provided, That the said super-
visors shall at any time within six months, upon sufficient proof from
the owner of any animal so sold, pay to said owner the balance due
as received from the said pound master; but if said money is not claim-
ed within that time, then the sum so received shall be retained for the
use of said township.

ACTIONS BY and AGAINST TOWNSHIPS.

§ 73. Action against township, how begun and defended.] In
legal proceedings against a township by name, all papers shall be served
on the chairman of the board of supervisors, and m case of his absence,
on the township clerk ; and whenever any action or proceeding is com-
menced, said chairman shall attend to the defense thereof, and lay
before, the electors of the township at the first township meeting, a full
statement of such proceedings, for their direction in regard to the
defense thereof.

§ 74. Township justice no jurisdiction.] No action in favor of any
township shall be brought before any justice of the peace residing in
such township.

§ 75. Damages in lieu op penaltx.] Whenever any action is brought
to recover a penalty imposed for any trespass committed on the lands
belonging to the township, if it appears on the trial thereof that the
actual amount of injury to such township lands, in consequence of such
trespass, exceeds the sum of twelve dollars and fifty cents; then the
amount of actual damage, with cost of suit, shall be recovered in said
action instead of any penalty for said trespass imposed by the township

Chapter 23. Civil Townships. 63

meetings suid mch recovery shall be used sa a bar to every other action
for the same trespass.

§ 76. Partition of township lands.] Whenever, by decree or decis-
ion in any action or proceeding, brought to settle any controversy in
relation to township commons, or other lands, the common property of
a township, or for tne partition thereof, the rights of any township are
settled ana confirmed, the court in which such proceedings are haa may
partition such lands according to the right of parties

§ 77. Treasurer to pay judombnts when not appealed.] When a
judgment is recovered against any township, or against any township
officers, in an action prosecuted by or against them in their name of
office, no execution shall be awarded or issued upon such judgment,
but the same, unless reversed or stayed on appeal, shall be paid by the
township treasurer upon demand, and the delivery to him of the cer-
tified copy of the docket of the judgment, if there is sufficient money
of sueh township in his hands not otherwise appropriated. If he fails
to do so, he shall be personally liable for the amount, unless the col-
lection thereof is afterwards stayed upon appeal.

§ 78. Jdbgment paid, by special tax, or execution issue.] If judg-
ment for the recovery of money is rendered against any township, and
the judgment is not satisfied, or proceedings tnereon stayed by appeal
or otherwise, before the next annual meeting of said township, a cer-
tified copy of the docket of the judgment may be presented to said
township at said annual meeting. The supervisors of the township
shall thereupon cause the amount due on the judgment, with interest
from the date of its recovery, to be levied as a special tax; and upon
their failure to do so, execution may issue against the township
property.

OP GUIDE POSTS.

§ 79. Guide posts.] Every township shall, in the manner provided
herein, erect and maintain guide posts on the highways and other
ways within the township, at such places as are necessary or conven-
ient for the direction of travelers.

§ 80. Supervisors report location op guide posts.] The board of
supervisors shall submit to the electors, at every annual meeting, a
report of all the places ^t which guide posts are erected and maintain-
ea within the township, and of all places at which, in their opinion,
they ought to be erected and maintained. For each neglect or refusal
to make such report, they shall severally forfeit the sum of ten dollars.

§ 81. Township to direct where posts to be erected.] Upon the
report of the supervisors, the township shall determine the several
places at which guidje posts shall be erected and maintained, which
shall be recorded in the township records. A township which neglects
or refuses to determine such places, and to cause a record thereof to
be made, shall forfeit the sum of five dollars for every month during
which it neglects or refuses so to do; and in such case, upon any trial
for not erecting or maintaining guide posts reported to be necessary
or convenient, by the supervisors, the township shall be estopped from
alleging that such guide posts were not necessary or convenient.

§ b2. Style OF guide post.] At each of the places determined by
the township, there shall be erected a substantial post of not less than

64 Civil Townships. . Chapter 23.

eight feet in height, near the upper end of which shall be placed a
board, and upon such board shall be plainly and legibly painted, of
otherwise marked, the name of the next town or place, and such other
town or place of note as the supervisors think proper, to which either
of such roads lead, together with the distance or number of miles to
the same : and also the figure of a hand, with the forefinger thereof

¥ointed towards the towns or places to which said road leads; Promdedy
hat the inhabitants of any town may, at their annual meeting, agree
upon some suitable substitute for snoh guide post.

MISCELLANEOUS PROVISIONS.

§ 83. Pounds in charge of maotbr.] Whenever the electors of any
township determine at their annual meeting to erect one or miore
pounds therein, the same shall be under the care and direction of such
pound masters as are chosen or appointed for that purpose.

§ 84. Electors may discontinue pounds.] The electors of any
township may, at any annual township . meeting, discontinue any
pounds therein.

§ 85. Township ohargbs — limitation of tax.] The following shall
be deemed township charges:

1. The compensation of township ofiicers for services rendered their
respective townships.

2. Contingent expenses necessarily incurred for the use and benefit
of the township.

3. The moneys authorized to be raised by the vote of the township
meeting for any township purpose.

4. Every sum directed by law to be raised for any township purpose ;
Provided, That no tax for township purposes shall exceed the amount
voted to be raised at the annual township meeting as provided in
subdivision eight, section fifteen, aforesaid.

§ 86. Levy op taxes.] The moneys necessary to defray the town-
ship charges of each township shall be levied on the taxable property
in such township, in the manner prescribed in the chapter for raising
revenue and other money for territorial and county purposes ana
expenses.

I 87. Officers to demand property of predecessors.] Whenever
the term of any supervisor, township clerk, or assessor expires, and
another person is appointed or elected to such oflSce, such successor,
immediately after he enters on the duties of his office, shall demand of
his predecessor all books and papers under his control belonging to
such office.

§ 88. Same in case op vacancy.] Whenever either of the officers
above named resigns, or the office becomes vacant in any way, and
another person is elected or appointed in his stead, the person so selected
shall make such demand of his predecessor, or of any person having
charge of such books and papers.

§ 89. Property to be diSlivered on oath.] Every person so going
out of office, whenever thereto required, pursuant to the foregoing
provisions, shall deliver, upon oath, all records, books and papers m his
possession, or in his control, belonging to the office held by him,
which oath may be administered by tne officer to whom such delivery
is made.

Chapter 23. Civil Townshibs. 65

§ 90. Same bt ABaiiNieTBATOB^ mi.] Upon the death of any of the
officers enumerated, the successor of such officer shall make such
demand, as above provided, of the executors or* administrators of such
deceased officer, and s^uch executors or administrators shall deliver,
upon like oath, all records, books, papers or moneys in their posses-
sion, or under their control, belonging to the office held by their testa-
tor or intestate.

§ 91. Blsotion pbbcinot.] Each township organized under this
chapter constitutes a^ electipn precinct.

§ 92. Township shall not contraot debts in excess of taxes.] No
township has power to contract debts or make expenditures for
any one year in a hut^^w svm than the amo«mt of taxes assessed for
sueh year^ without having been authorized by a majority of the voters
of such township, and no township shall assess for township purposes
more than three mills on the dollar of taxable property for any one
year.

^ 93. This act not to apply to incobporatbd cities.] Nothing in
this chapter contained shaJl in any way apply to any portion of the
territory which is embraced within the limits of any incorporated city;
but each incorporated city shall have and exercise within its limits,
in addition to its other powers, the same powers conferred by this
chapter upon townships, m the same manner prescribed by law.

FORMS.

FORM OF NOTICE FOR FIRST TOWNSHIP MEETING.

The legal voters of tlia township of. ...... • » - «, in the county of , and

Territory of Dakota, are hereby not ifi<ed that tJae first township meeting for said township will

be held at , in said tpwnf^ip, oa , the day of. ,

A. D. 18. ., for the purpose of electing the following township officers: (state township officers
to be elected).

Attest:

., Clerk.

il

Commissioners.

FORM OF NOTICE OF ANNUAL TOWKSltlP HESTINB.

The citizens of the township of , in ^e county of — ., and

Territory of Dakota, who are qualified to vote at general elections, are hereby notified that the

annual township meeting for said township will be held at , in said township,

on Tuesday, the day of April next, between the hours of nine o^clock in the

forenoon and four o'clock in the afternoon of the same day, for the following purposes :

1. To elect three supervisors, oua of whom shall be designated on the ballots as chairman,
one township clerk, one treasurer, one assessor, two justices of the peace, two constables, and
overseer of highways for each roeta district in said township.

2. To (state the business to be transacted), and to do any other business proper to be done
at said meeting when convened.

Given under my hand, this day of , A. D. 18. .

, Town Clerk.

• »

66 Civil Towkships. Chapter 23.

. 90RM OP 8TAV!BiaeHC VO BK KLBD IN TKB OTFIOS ^WTO'lRHBaiP' CLBKX l«ft -BPRCUCti

TOWNSHIP MBSTINQ'

Tb« uAd/ecBigned, town^bip qflAcflrs aad ot|i«r ireelloldoiB of th^ tpwi^hipvof; ,

in the county of ..., hex^j declare and state that a special townstiip meeting ia

necess^i-y to the interests ot saia'town, for the pKirpoise Of (here set fordi the object of the
meeting).

Witness oui' hands, this^. ..... .^... , day of ,.,.,, A. D. 18,.-

- ' ' , Snpervi^r.

, Township Cleric

.«..« r ^Jiwtices of the

,) Peace.

(Names of twelve ouier freeholders.)

FCQEtM or NeOSSB rOR BTBCIAL TowmviF wtsjinmQi

Whkrbas, ThesupcnriioiB, township olerk, and Jastices of the peaee (or as the case maj

be), togetl^er wjth twelve others, freeholdatfs of the townslijip qf have, in writing.

filed in mv office a statement tliat a special township meeting is necessary to the interests or
said township;

The inhabitants, le^al voters of the said township of , are therefore hereby notified,

that a special township mating will be held at , on the a . -..of , A.

D. 18. ., at nine* o'clock in tne forenoon, for the purposes following, to wit^ To (here enomerate
spucifically in proper order, the subjects to he acted upon as- eontalnjad in the sta^^meftt filed).
Being the objects conttiined in the statement ^)ed.ia fny office.

Given under my hand at , this day of , A. D. 18. .

, Township Oletk.

NOTICE OF KLBCTION TO TOWNSHIP OFFICE.
To :

You are hereby notified that at the annual township meeting (or special town meeting)

held in the town of , county of , and Territorv of DalLOta, on the

day of , A. D. 18. . , you were duly elected to the office of.

Given under my hand this day of A. D. 18. .

, Township Clerk.

FORM OF OATH.

Territory of Dakota, I

County. )

I , do solemnly swear (or affirm), that I will support the constitution of the United

Slates, and of the Territory of Dakota, and faithfully discharge the duties of the office of

of the township of , in the county of , to the best of my ability A. D. 18. .

Sworn to and subscribed before me this day of , A. D. 18. .

A. B., Justice of the Peace.

NOTICE OF ACCEPTANCE OF OVERSEER OR POUND MASTER.

To , Township Clerk of the township of

Sir : — Having been elected (or appointed) overseer of highways (or pound master) for district

number , in said township, on the day of ., A. D. 18. ., I hereby

notify 3'ou tliat I accept said office.

Witness my hand, this day oi , A. D. 18. .

FORM OF TREASURER'S BOND.

Know all men by these presents that we, A B, of the township of .*! . . ., in the countv

of y in the Territory of Dakota, as principal, and C D and £ F, of said county and

state, as sureties, are held and firmly bound unto (names of supervisors) supervisors of said

township of , and tlieir successors in office, in the penal sum of (double the amount of

money to be received) for the payment of which, well and truly to be made, we bind ourselves,
our heirs, executors and administrators, firmly by these presents.

Sealed with our seals, and dated this day of , A. D« 18. .

Chapter 23. Cvfih TowirsHiPe. 67

The condition of t^^ t|boT0 obligation is ^uch that, wheimuK tha abore bouaden A B, has

been elected (or appointed) treasurer for the said township of i . .for the current year,

and has accepted the ofBce, and is aboQ| taidug upon himself the discharge of ita dhitiea;

Now, therefore, if the said A B shall faithfully execute and discharffe all his duties as such
treasurer, than the above obligaUoo to be void, otherwise to remain ia.fnll force and effect

• Cr» •- ^» . > . Jj • • 8BAL.

b: .F [iMAL.

Ikoobskmbnt of an>ROVAi«.— I hereby approve the within bond, and the sureties thereon.

Chairmait 9f Board of Supervisors of the township of.
Dated , A. D. 19..

VORM OP WABKANT Of APPOTNTXBNT BT JUSTICBa OF THB PBACB AHD BOARD OV 8UPBRYI80B8

TO FILL VACANCY.

To , Esq., of the township of , in the county of , Territory of

Dakota, greeting: , .

WBBRBA8, said township has failed to elect (state the officer, or if tne vacancy occurs from

any Qlher caise named in the s^tion, so state,) for the jrear 19. ., and the office of is

now vacant: Therefore we do hereby appoint vou (insert title of office) for said term (or
cooBly) to hold said office unttl the maiit aanual towpship meeting, and until a auccessor ia
elected and qualified in your i^lace; and you shall baire the same pi^wera and be subject to the
duties and penalties as if you had been duly elected to said office.

Given under our hands Uiis day of , A. D. 18. .

Supervisors.

Justices of
^ the Peace.

■■■ . •

FORM OV NOTICB BT T0W?7aHiP CLBRK TO OHB APPOHnrXD TO FILL VACABCT.

To , Esq., of the township of , hi the county of. '. , and Territory of Dakota:

You are hereby notified that on the day of A. D. 18. ., the Justices of

the peace and supervisors of said township, bv their warrant of that date, under their hands,

appointed you to the office of (here insert the tille of the office) for said township, which

warrant has been duly filed in my office.

Given under my hand this day of , A. D. 18. .

Township Clerk.

FORM OF NOTTCB flOR TOWKSHIP MBSTIKO "VI^HlBRB TOWNSHIP HAS FATLftB TO BI^ftCT

TOWNSHIP OFFICBR8.

The township of , county of .. . ., and Territory of Dakota, having neglected at the

time fixed by law to organize and elect township officers, we, the undersigned petitioners of

said town, do hereby call a township meeting to elect (state the officers) to be held at ,

in said town, on the day of , A. D. 18. .

Dated. , A. D. 18. .

(Names of at least twelve freeholders.)

AFFIDAVIT OF FRRRHOLDER IN CASB NOTICB OF TOWNSHIP MBBTINO IS NOT GIVEN WPTHIN
THIBTT DATS AFTBR TIME FOB HOLDING ANNUAL TOWN MEETINO.

IteBlTORT or DsABOTA, )

CoQBty of , S

A B, Ming duly iBwom, Sajrs he is a freeholder of asd hi the township of . . . ., in said

county; that said township did, at the time fixed by law for holding its last annual township
meeting, o^lect (or reftise) to organise and elect township officers; that no notice for special
township meeHttg to etoot said ofllcets haa been giveik within thiny days after the time for
holding the annual township meeting as aforesaid, and that this affidavit is made under section
47, for the purpose of enabling the hoard of county commissioners of said county to appoint
the necessary township officers '46r the township aforesaid^ •

Subscribed and sworn to before me this day of , A. D. 18. .

68 Civil Towrrsflips. Chnpter 23.

WARRANT Of APFOniTMEHT Bt BOARD OF COtTHTT C01lklSfStONSR8.

: .WHi&RBA8f«lllias*be«]i utiftde'^te^ipp^arby tte ttffldavU<0f.'.'. .. .*.\{ ftM in th«^fflt;e of the

county clerk of -the county oft v. . . y. .; otld Territory of Dakota, on tH«. . . /. .day of. : . . ^ ., A. I>.
18. ., that tbe tawn of... ... .^. ..v.^;, in said eouatr, ai<l nefleot (or rBfuso) to ofganlce and' elect

town oflicerfi- at- the time fixed^by law for holding its last annual town meeting, and that no
notice for a special town mfeetinc' to elect said officers has been given within the time allovred
by laW' for that purpose ; Th^voore, we, the board of county commissioners of said county, do
herebv. appoint (state each officer separately) for said town, uBtil OtiMrs - are elected and
qualified in their places.
Given under <ottr hands this. ... day of , A.D.IS. .

I

Attest: Chairman of Board of County Commissionera.
County Clerk.

'.JU

_L

**■

FO|lM OF Rl^IONATION OF T0WK8HIF OFFICBR.

To the board of supervisors of the township of. , county of , and Territory of

Dakota: <

. I hereby t^ign tii(B ofllee of , for said township, and respectfUllT request that my

resignation be aoeepted, fot^the folk) wine reasons: (Mateoanse of' resignation}.

Dated this day of , A. D. 18. .

A. B

FORM OF AeeaPTANCE.

The board of supervisors of said township of , being satisfied that the causes above

set forth are sufficient, do ack;ept the resignation of the said A B.
Witness oiur hands this day of , A. D. 18. .

> Supervisors.

FORM OF NOTICE TO TOWNSHIP CLERK.

To. , township clerk of said township of

You are )ii^;^y n^Jfied that the board of supervisors, of said towi^ship have accepted, the

resignation of A B, of the office of , for saia township, and tnat said office is how

vacant.

Given under cmr hands this! day of. , A. D. 18. .

V Sspervison.

FORM OF COMPLAINT.

8S.

Tbrritort OF Dakota, )

............ County, \

A B, on oath, complains and says that he is a member of the t>oard of health of and for

the township of '. ^ . ., in said coutity ; th'at said board, on tbe day of AD.

18. ., thinking it necessary for the preservation of the health of tbe UUiabitaiits of said
township, did attempt to enter (describing the building or vessel, and give name of owner, if
known), situate of being in said townskipt for the ptirpoae of fstate ob()«ot), whiakithenaod
there ezistedvand that said board of health and each member thereof present, was k^. ...... .

refused such entry, and pievented from entering such (building or vessel), oontrary to the
statute in such case provided.. And fnrtker deponent aaith not, except that a warrant issue as
prescribed by law.

A B

Subscribed and sworn to before me, this day of ,• A D. 18. .

Chapter 23.

Qmi, Towi^QiM.

$9

TSRRITOBT OF DAKOTA, ) ^

jromi QK WA9^AliT.

Conntj of.
The Territory of Dakota, to the sheriff or an^ constable of Mid ooiur^ :

Whereas, A B,ha8 this day made complaint under oath to me, that (here insert the substance
of the complaint), and prayed that a -warrant issue as prescribed by law; Now, therefore, you
are commanded to take samcltfiit aid, and bfting accompanied by two or more of tbe botm of

health of said township of , repair to {state place and matter complained of), and the

said (nuisance or other matter) destroy (remove or prevent), under the direction of the mem-
bers of the board of health aforesaid.

Given under my hand, this day of , A. D. 18. »

Justice of the Peace.

FORMS U17DBR SECTIONS 66 AKD 67.

Town of , A. D. 18. .

clerk of the district court of the county of

Sir: — A B was Elected (or appointed) constable of the township of , in said county, on

tbe day of. , A. D. 18. ., and has qualified according to law.

Township Clerk.

Town of , A. D. 18. .

clerk of district court of the county of. . ^

Sir: — ^A B was, on the day of , A. D. 18. ., elected justice of the peace for said

township for the term of. (If elected to fill a vacancy, add :) Said A B was elected to fill

a vacancy in said office, of which the last incumbent was

Township Clerk.

FORM Oif RBPORT OF 6CPSBVI80S8.

Report of tbe supervisors of the township of , cowity of , and Territory of

Dakota, for the year

Items of Account Allowed.

Nature of Account.

Name of Person.

The supervisors estimate that the following sums are necessary for the ensuing year to meet
the expenses of the township :

CurreDt expenses .....$..«.

Support of poor $

Otner incidental expenses $

Total.

(Add general statement of fiscal concerns).

Supervisors.

70

Civil TowirsHtps,

Chapter 23.

rOBM OF BTATBMAHT op TOmtBBIP TBBASORXB.

Annual statement of , treasurer of the township of . . . , county of.

Territory of Dakota, for the year 18. . :

nud.

Money received.

Date.

From whom.

On what Account.

Amount.

•

■

•

Total, $

Money paid out.

Date.

To whom.

For what purpose.

Amount.

■

•

•

%

Total, 1

m

Bal., «

FORM OF NOTICE BT POUND MASTER.

Notice of Im{)ounding and Sale. — ^Take notice that the following animals (describing them )

are impounded in the township of , county of ., and Territory of Dakota,

and that unless said animals aire taken away and fees paid wtthin fifteen days after the date of
this notice, I will sell the same at public vendue, to the highest bidder in cash, at (state

place, which must be where township meetings are iisualfy held), at « . .o^clock in the

noon of that day.

Dated at , this day of , A. D. 18. .

Pound Master.

FORM OF REPORT OF SUPERVISORS.

•

The supervisors of the township of , county of , and

Territory of Dakota, respectfully report that zuide-posts are erected and maintained in the
places following, and none other in said township, viz : (Qlve particular description of ieach
place.) The supervisors are of opinion that guide-posts ought to be erected and maintained in
the following places in said township, and that there are no other places where such guide-posts
will be necessary or convenient.

Dated ,A. D. 18..

,, [-Supervisors.

OATH OF PERSON DELtVERINO PAPERS, ETC.

You do iolemnly swear (or affirm) that you have delivered to me as (state office), all records,

books, and papers in your posession, or under your control, belonging to said office of.

heretofore held by you. So help you Qod.

Chapter 24. Inoobfosation py Towns and Cities. 71

CHAPTER XXIV.

'Incorporation of Towns and Cities.

§ 1. Town site to bb sueveybd and platted.] Persons intending
to make application for the incorporation of a town, as hereinafter
provided, shall cause an accurate survey and map to be made of the
territory intended to be ^embraced within the limits of such town;
SUCH survey shall be made by a practical surveyor, and show the courses
and distances of the boundaries thereof, and the quantity of land con-
tained therein; the accuracy of which survey and map shall be verified
by the afiB.davit of such surveyor written thereon or annexed thereto.

§ 2. Census to be taken.] Such persons shall cause an accurate
census to be taken of the resident population of such territory, as it
may be on some day not more than thirty days previous to the time of
presenting such application to the board of county commissioners, as
hereinafter provided; which census shall exhibit the name of every
head of a family residing within such territory on such day, and the
number of persons then oeloncing to every such family; and it shall
be verified by the afiidavit of Qie person taking the same.

§ 3. Survey, map and census subject. to examination.] Such sur-
vey, map, and census, when completed and verified as aforesaid, shall
be left at some convenient place within said territory for examination
by those having an interest in such application, for a period of not
less than thirty days.

§ 4. Application for incorporation to be by petition.] Such
application shall be by petition, subscribed by the apjplicants, and also
by not less than one-third of the whole number of Qualified voters
residing within such territory; and such petition shall set forth the
boundaries thereof, the quantity of land embraced according to the '
survey, and the resident population therein contained, according to
said census taken; and t^e said petition shall have attached thereto or
written thereupon, affidavits verifying the facts alleged therein, and it
shall be presented at the time indicated in the notice of such applica-
tion, or as soon thereafter as the board can receive and consider the
same.

§ 5. County commissic^ers to majce order of incorporation.] The
board of countiy cpQimissioners in hearing such application, shall first
reauire proo^ either by affidavit or by oral examination of witnesses
before tnem, that the said survey, map, and census were subject te
examination in the manner and for the period required by section three
of this act; and if said board be satisfied that the requirements of this
act have be^n fuUy complied with, they shall then make an order,
declaring that such, t^mtory shall, with the assent of the qualified
voters theneof^ as hereins^fter provided, be an incorporated town, by the
name specified in the application aforesaid^ which name shall be dif-
ferent from that of every other town in this territory; and they shall

I

72 Incorporation ot Towns and CmEs. GhapUr 24.

also include in such order a notice for a meeting of the qualified voters
resident in said proposed town, at a convenient place therein, to be by
them named, on some day within one month therefrom, to determine
whether such territory- sha^l be an itiOorjp^gltiBdtown.

§ 6. Notice of meeting to be given.] The board shall cause ten
days' notice of such meetinff, by publication in a newspaper, if one be

f)ublished in the county, and by |>osting up coniesr of ^id^ notifce, not
ess than ten in number, at the most public places in said proposed
incorporated town.

§ 7. Opening op polls.] At the meeting of the qualified voters, as
herein provided, polls shall be opened at nine o'clock in the forenoon
of such day, and shall be kept open until four o'clock in the afbernoon,
when they shall be closed.

§ 8. Election op inspectors.] The voters at such meeting, shall
first proceed to the election of three inspectors who, after being duly
chosen and qualified, and one of their number elected clerk, shall,
without delay, proclaim to the meeting that the poll is now opened,
and that they are ready to receive the oallots of the voters.

§ 9. Manner op voting.] The qualified voters of said proposed
incorporated town shall votfe by ballot, having thereon the words ** for
incorporation, yes;" or the words *'for incorporation, no;" and if a
majority of the ballots given at such meeting shall have thereon the
word " no," the voters of such proposed town shall be deemed not to
have assented to the incorporation thereof as a town, and no further

Eroceedings shall be had in relation thereto; but if a majority of such
allots shall have thereon the word "yes," such territory shall from
that time be deemed an incorporated town, to have continuance there-
after, by the name and style specified in the order made by the board
of county commissioners, as hereinbefore provided, and the inspectors
of such meeting shall make a statement snowing the whole number of ,
ballots given at such meeting— the number having the word *'yes"
thereon, and the number having the word " no " thereon — which state-
ment shall be verified by the affidavit of such inspectors, and shall be
returned to such board of commissioners, at their nfext session, who, if
satisfied of the legality of such election, shall make an order declaring
that said town has been incorporated by the name adopted, which order
shall be conclusive of such incorporation in all suits by or against such
corporation; and the existence of such corporation, by the name and
style aforesaid, shall thereafter be judicially takcQ notice of in all
courts and places in this territory without specially pleading or alleg-
ing the same.

1 10. Division op town into mstriots.] Such iiisnectors, When they
shall have returned the stateinent as aforesaid, shall next proceed to
divide said town into not less than three nor more than seven districts,
having due regard to the equitable apportionment of the population
among the same, and the convenience and contiguity of such district.
§ 11. NoTicfE OP ELECTION.] They shall also give ten day&' notice by

Eublication in a newspaper, if one be printed wittiln such town, and
y posting such notices in five public places therein, of an election to
be held in such town for the purpose of electing officers thereof, nam-
ing the place therein, and the dav upon which the same shall be had;
but such day named shall be within twenty days from the posting of

Chapter 24. Incorporation of Towns and Citibs. 73

such notices. Every sufoeequent notice of a corporation election shall
be given in like manner by the clerk of said town.

§ 12. Annual elbotion— when held.] An election for officers of
said town, after the first election, shall be held annually ou the first
Monday of May of each year, and at every such election the preceding
board of trustees, or any three of them, shall act as the inspectors
thereof.

§ 13. How long polls shall remain open.] At all electioas in said
town, the polls shall be open at nine o'clock in the forenoon, and shall
not be finally closed until four o'clock in the afternoon of said day.

§ 14. Inspbotobs to bb the judges of Clegtion.] Such inspectors
shall preside at such first election, and be the inspectors thereof, and,
in the receiving and canvassing of votes, shall be governed by the
laws then existing, so far as they are applicable, for the election of
county officers.

§ 15. What town officers to be elected.] There shall be elected
at the first, and at every subsequent election, one trustee from each
district in said town, and also a clerk, assessor, treasurer, marshal, and
justice of the pea<5e, who shall respectively hold their offices until the
first Monday in May next following, or until their successors are elect-
ed and qualified; Provided, however ^ That nothing herein contained
shall prevent the respective offices of clerk, treasurer, assessor, and
marshal from being held by one and the same person.

§ 16. Persons having highest number of votes to be elected -
DU'rtr OF inspbotobs.] The persons having the highest number of votes
for the office of trustee shall •be declared elected as such trustees, and
the persons who receive the highest number of votes respectively for
clerk, marshal, assessor, treasurer, and justice of the peace, as designat-
ed by the ballot for such office, shall be declared so elected; and if two
or more shall have an equal and highest number of votes, and there
be no choice, the inspectors of such election shall forthwith determine
by lot which shall be deemed elected ; and it shall be the further duty
of such inspectors to make a certified statement, over their own signa-
tures, of the persons elected to fill the several offices in said town, and
file the same with the county clerk in the county thereof, within ten
days after the date of such election, and no act or ordinance of any
board of trustees chosen at such election shall be valid until the pro-
visions of ttiis section are substantially complied with.

§ 17. County olebk to make record of statement.] It shall be the
dutv of the county clerk of the proi>er county to make a record of
such certified statement, for which services there shall be paid the same
fee as is allowed for similar services in other cases.

§ 18. VaOANOIBS in the BOABD op trustees — HOW FILLED.] A

vacancy occuring in the board of trustees, or in any corporation office,
shall be filled by appointment at a special meeting of the trustees
called for that purpose, but such appointment shall be made from the
district, if a trustee be appointed, m which the vacancy has occurred,
and shall in no case exteiid beyond the annual elections provided for
in this act.

§ 19. Offdobbs to take oath.] The board of trustees chosen as
alisfFesaad, riiall elect a piresident from their own body, and such presi-
dent^ trustees, an[d|all Qkh»t officers elect shall, within five days after

■IB

74 Incorporation of Towns and Cities. Chapter 24.

such election, take and subscribe, before Bomie person authorized to
administer the same, the usual oath or affirmai^ion for the faiiJiful per-
formance of the duties of their respective offices.

§ 20. Board of trustbes a body corporate.] The president and
trustees of such town, and their successors in office, shall constitute a

body politic and corporate, by the name of the town of — — , and

shall be capable in law to prosecute and defend suits to which they are
a party.

§ 21. Notice of special meeting.] Special meetings of the qual-
ified voters may be called by the clerk by order of the trustees of said
town, by giving ten days' notice thereof in a newspaper, if any be
printed in such town; otherwise by posting up such notices in five
public places therein, and such notice shall state the object for which
each meeting is called.

powers of the board of trustees.

§ 22. Powers of board of trustees.] The board of trustees shall
have the following powers, viz. :

1. To have a common seal, and alter the same.

2. To purchase, hold, or convey any estate, real or personal, for the
use of the corporation, so far as such purchase may oe necessary to
carry out the objects contemplated by this act.

3. To organize fire companies, hook and ladder companies, to regu-
late their government, and the times and manner of their exercise, to
provide all necessary apparatus for the extinguishment of fires; to
make owners of buildings provide ladders and fire buckets; which are
hereby declared to be appurtenance^ to the real estate, and exempt from
execution, seizure, or sale; and if the owner shall refuse to procure
suitable ladders or fire buckets after reasonable notice, the trustees
may procure and deliver the same to him; and in default of payment
therefor, may recover of said owner the value of such ladder, or fire
buckets, by suit before the justice of the peace of the town incor-
porated by the provisions of this act, and costs accrued thereby; to
regulate the storage of gunpowder and other materials; to direct the
construction of a plac« for the safe deposit of ashes; and may under
any order by them, entered upon the proper book of ' the board, visit,
or appoint one or more fire wardens to visit, and examine at all
reasonable hours, dwelling houses, lots, yards, enclosures; and buildings
of every description, discover if any of them are in a dangerous con-
dition, and provide proper remedies for such dangers; to regmlate the
manner of putting up stoves and stove pipes; to prevent oulr fires, and
the use of nreworks, and the discharge ox fire-arms^ within ^the Unfits
of said corporation, or such parts thereof as they may thiftk prosper;
to compel the inhabitants of such town to aid in the iextinguishment
of fire, and prevent its communication to other builditigs, under succh
penalties as are in this act provided; to construct and presence resar-
voirs, wells, pumps and other water works, and to regulate the use
thereof, and generally to establish other measures of prudetioe> for. the
prevention or extinguishment of fires, as they shall deem proper.

4. To declare what shall constitute a nuiaanoe, and to prevent^ $i»hate,
and remove the same, and take such other mieasures fov the prewGrva-
tion of the public health, as they shall deem ueoesdary.. . i

Chapter 24. Incobfobatip;n op Towns and Cities. 75

5. To restrain from running at large, cattle, swine, or other animals.

6. To restrain and prohibit gambling and other disorderly conduct;
to suppress and prohibit the keeping of houses of ill-fame, and to
authorize the seizure and destruction of gambling apparatus.

7. To license, regulate or restrain auction establishments, traveling
jpeddlers, public exhibitions, and the sale of intoxicating liquors within
the corporation.

8. To establish and regulate markets, and build market houses, and
direct the location of slaughter houses.

9. To lay out, open, grade, and otherwise improve the streets, alleys,
sewers, sidewalks and crossings, and to keep them in repair, and to
vacate the same.

10. To appoint street commissioners, and also fire wardens, not
exceeding tliree.

11. To prohibit incumbrance of the sidewalks of said town, and
riding or driving thereon, except to cross the same.

12. To provide means for keeping and preserving the peace and
quietness of such town.

13. To insure the public property of such town.

14. To purchase, lay out and regulate cemeteries.

15. To plant trees upon public grounds, and along the streets of such
town, ana provide for their culture and- presei-vation, and to enclose
anv public square or other public ground within said corporation.

16. To levy and collect annual taxes not exceeding fifty cents on the
hundred dollars valuation, and twenty-five cents poll tax on all prop-
erty subject by law to taxation.

17. To levy and collect annually a tax of one dollar on each male
dog, and two dollars on each female dog owned and kept within such
town.

IB. To make and establish such by-laws, ordinances and regulations,
not repugnsint to the laws of this territory, as may be necesssiry to
carry into eflFect the provisions of this act, and to repeal, alter or amend
the same as they shall seem to the board of trustees of such town to
require; but every by-law, ordinance, or regulation, unless in case of
emergency, shall be publi!;hed in a newspaper in such town, if one be
printed therein, or posted in five public places, at least ten days before
the same shall take eftect.

19. To enact fines, penalties and forfeitures for violations of this act,
or of any by-law or ordinance by them established, not exceeding ten
dollars for any one oflense, which may be recovered by action in the
name of the corporation, but such board may remit the whole or any

f)art of the fine, penalty or forfeiture; Provided, That the fine assessea
or the violation of anj ordinance requiring a license shall not be less
than the amount required to be paid for such license, although it may
exceed the sum of ten dollars.

§ 23. JURISBIOTION OF TEU8TBE8 OVER PUBLIC GROUNDS.] The trUStCCS

shall have jurisdiction over any commons or public grounds belonging
to said town, and shall have power to regulate, with the consent
of a majority of the owners thereof, the bauKs, shores and wharves of
that portion of any navagable stareams within the corporate limits, but
no ferries heretofore, or which may hereafter be established by law,
shall be jHrejvdicdd or in any manner effected by the provisions of this act.

■555IB

76 Incorporation of Towns and Cities. Chaptet^ 24.

OF THE AUDITING AND PAYMENT OF AX:JCX>UWT3.

S 24. Appropriation of moneys.] All moneys, however derived,
belonging to such corporation shall only be 'appropriated for such
objects, and defraying such expenses, as accrue, or necessarily arise
in the exercise of powers granted by this act. No appropriation shall
be made witTiout an order to that effect entered upon a proper book, to
be kept for that purpose by such board.

' § 25. Of auditing accounts.] No account or claim against said
town shall be audited or allowed by the board of trustees, unless it be
made out fully and itemized, and every such account 3,udited shall be
numbered from one, upwards, in the order they were presented, and a
memorandum of the same entered upon a book to be Kept exclusively
for that purpose.

§ 26. Payment of accounts.] No account or claim shall be paid
unless audited and allowed by the board as aforesaid, and no moneys
shall be drawn from the treasury except upon a warrant from the
treasurer, signed by the president of said town, and attested by the
clerk thereoi.

OF corporate indebtedness.

§ 27. Contracting of loans.] No incorporated town under this
act, shall have power to borrow money or incur any debt or liability
unless the citizen owners of five-eighths of the taxable property of
such town, as evinced by the assessment roll of the preceding year,
petition the board of trustees to contract such debt or loan, and such
petition shall have attached thereto an affidavit verifying the gmi-
uineness of the signatures to the same: and for any debt created thereby,
the trustees shall add to the tax duplicate of each year successively, a
levy sufficient to pay the annual interest on such debt or loan with
an addition of not less than five cents on the hundred dollars to create,
a sinking fund for the liquidation of the principal thereof.

OF the qualification of officbbs.

•

§ 28. Certain officers to give bonds.] The clerk, assessor, treas-
urer, marshal, and justice of the peace, shall, within t^n days after
their election or appointment, each and severally give bonds payable

to the town of , with freehold sureties to siich an amount

as the board of trustees shall direct; but the bonds of the treasurer
and marshal shall respectively be for double the amount of the esti-
mated tax duplicate for the current year^

§ 29, Books and vouchers to be deuvered successor.] All books,
vouchers, moneys or other property, belonging to the corporation^ and
in charge or possession of any officer of the same, shall be delivered
to his successor when qualified.

LEVY AND COLLECTION OF TAXES.

r

§ 30. Board of trustees dbteriune amount of tAX.] • The bourd of
trustees shall, before the third Tuesday in May of ed.ch year^ (determine
the amount of general tax for the current year.

§ 31. Duties of assessor.] The assessor shall assess all property
liable to taxation in such town under such . miies toti : rejgulatiaiiB as

4
I 4

Chapter 24. Incorporation of Towns and Cities. 77

the board may prescribei, and shall make return of his assessment roU
to such board on or before iAiB second Tuesday of June- of each year.

§ 32. NoTioE OF OPBNING OF ASSESSHBNT ROLL.] The trustoes shall
caose tlie clerk oS' said corporaticm to put up nortices, in three or more
public places in said town, stating that the assessment roll is returned
and open for impe^tiesi, and that^ on a day and at a place to be speci^-
fied in said notice, the trustees will hear, and decide all complaints oi,
and appeals from, the acts of said assessor.

§ 30. CoBRiBloriON OF TAX LIST.] Whcu the assessment roll shall have
been corrected and completed, the trustees shall levy a tax upon the tax-
able property of said town, to such an amount as they may deem
necessary, and shall set opposite the name of each person taxed, a
description and valuation of the property charged therewith, and the
amount of tax assessed against such person; and when such tax list
shall have been made^ they shall cause a copy thereof, with a warrant
annexed, to be delivered to the mai^hal of such town. The assessment
A)ll and tax list shall be deposited with the treasurer of such town,
who is hereby charged #ith the safe custody of the same.

§ 34. Warrant to karbhal to oollbct anb pay over taxes.] Such
warrant shall be under the seal of the corporation, signed by the
present and trustees, or a majority of them, and attestedby the clerk,
and shall command the marshal to collect the taxes specified in his
daplicate within ninety days, and pay over the same, and make return
of said warrant, to the treasurer of said town. Such trustees may
renew such warrant for any period not exceeding thirty days.

§.35. Powers of marshal to oollect tax.] The marshal shall
collect the taxes on said duplicate when so required, and shall have the
same power to enforce collections, and shall be governed by the same
mles and regulations as county treasurers and collectors, and shall
have authority in like manner to collect by distress and sale of per-
sonal property; but if the tax cannot be so made and it becomes nec-
essary to sell real estate^* such tax shall be certified to the county
treasurer, who shall proceed and collect the same as directed by the
statate governing tax sales; Provided, That this shall not apply to
incorporate cities, villages, or towns, for which a different method is
provided by their charter.

§ 36. Tax i>ui^ioatb j mat be delivered to oollector.] The
trustees of such town may, at their option, in the first instance deliver
the tax duplicate to the collector of the proper county, on or before
the first day of August, in each year, instead of the marshal of such
town, and said collector shall enter said tax, and if delinquent, .the
interest and penalty thereon^ upon his duplicate.

§ 37. Compensation of collector and treasurer.] The collector
of such county shall collect the corporation taxes upon such duplicate
as other taxes are collected, and pay the same over to the treasurer of
such corporation. The collector and treasurer shall be allowed and
paid by the; corporation the same compensation as is paid by the
county for like services.

1>0WERS AND duties OF OFFICERS.

'I » *

§ 38. DuTiu OF TKEASUBODR.] The treasurer of every incorporated
town shall so keep his accounts as to show where, and from what

78 Incobporation of Towns akd Citibs. Chapter 24.

sources, all moneys paid him have been derived, and to whom and
when such moneys^ or any part thereof, have been paid. The
treasurer shall grant all licenses authorized by this acty upon the pre-
sentation of the receipt of the marshal, that the nioney therefor lias
been paid to said marshal. His books, accounts, and Touchers, shall
at all times be subject to the examination of the boi^rd of trustees,
and it is hereby made their duty to examine the same, at a regular
meeting of such board, on some day between the first and last Mondays
of April, in each year, and have settlement with the said treasurer.

§ 39. BOABD OF TRUSTSBS TO PUBLISH RBOEIPTS AND X:XPBNDITURK8.]

It shall be the duty of the board of trustees^ immediately afiber the
annual settlement with the treasurer of said corporation, to publish
in. a newspaper, if one be printed therein, or if there be no newspaper*
then by posting in three or more public places, an exhibit of the
receipts and expenditures, specifying the sources of such receipts,' what
appropriations were made, for what objects, and the specific amount
of each. •

§ 40. DuTiss OF 0LERK.1 The clerk of such town shall have the
custody of the records, books, and papers of the board of trustees, and
shall attend all meetings and record tne proceedings of said board, and
shall perform all other duties appertaining to his office, as required of
him by the by-laws.

§ 41. Powers of karshal.] The marshal of such town shall be a
peace ofiicer, and shall possess the powers and be subject to the liabili-
ties possessed and conferred by law upon sheriffs in executinj^ the
orders of the trustees, or enforcing the by-laws and ordinances of said
town.

§ 42. Trustees to superintend grading, &o.] The board of trustees
shall sunerintend the jading, paving, and improving of streets, and
the building and repairing of sidewalks.

§ 43. Duties of fire wardens.] The fire wardens shall attend all
fires, and ffive their personal superintendence to extinguish the
same, and do all other acts required by the by-laws: and obey all
orders given by the board of trustees in relation to tne fire depart-
ment. Trustees shall by virtue of their office be fire wardens.

§ 44. Compensation of town officers.] The trustees, clerk, asses-
sor, treasurer, marshal, and justice of the peace, shall respectively
receive for their services, such compensation as the board of trustees,
in their by-laws, may decide; and said board shall cause to be paid
other officers of such town for their services a just and reasonable
compensation.

OF SIDEVTALKS AND STREETS.

*

§ 45. Repairing streets and sidewalks.] Whenever two-thirds of
all resident owners in number, or in value of real estate, bounding^
both sides of any street not less than one square, shall petition to have
such streets graded, jpaved, or otherwise improved, or the sidewalks
thereof built or repaired, or when two-thirds of the owners of real
estate in number, or in value, on one side of such street shall desire a
sidewalk on that side, it shall be the duty of such board, to levy, and
cause to be collected by tix, upon the owner of real esta4;e, or lots on
such street or part of a street, according to the last assessed valuation

Chapter 24. iNOOBPottATioK or Towns and Cities. 79

of real estate, such a sum of money as i^ neoessary for the improve*
meHt of said ^reet or sidewa^lk, as in said petition recjuested.

§ 46. ' Nobody exbmpt prom hiqhwat tax.] Nothing contained in
this act shaU ' exempt theitifaabit»Dts of any town, from the payment
of highway taxes le^Uy assessed, nor from the formation m one or
more read distiiots, irrespective erf the corporate limits of suoh town.

EXTENSION OP CORPORATE LIMITS.

§ 47. Addition to ooepoeation.] When two-thirds of the owners
of a tier of out-lots, adjoining an incorporated town, shall sign a peti-
tion, asking that the corporate limits oi said town, be extended so as
to include said out-lojbs, the board of trustees of said town shall cause
said petition to be recorded, and make an order that said tier of out-
lots shBM thereafter be included, and constituted a part of said
corporation, and the inhabitants residing thereon, and owners thereof,
shall be subject to and entitled to all pi^vileges of said corporation.

§ 48, A^NBXiN^t OF ADpiTiONAL LOTS.] Whenever there shall be lots
laid oflF, and platted, adjoining such town, and a record of the same is
made in the xegis^r of deed's office of the proper county, the. trustees
may, by a resoiij.iion of their board, extend the boundary of such town
so as to include such. lots; and the lots thus annexed shall thereafter
form a part of such town and be within the jurisdiction thereof. The
trustees shall immediately thereafter file a copy of such resolution,
together ;wH;h a- plat and map of survey, defining the boundaries of
such additiqn^ in. the office of the register aforesaid.

§ 49. Pbocejidings of trustees to annex additions.] When any
town shall desire to annex oontiguous territory thereto, not platted or
laid, or reaor(le(i, the trustees shall present to the board of county com-
missioners, a petition setting forth tne reasons for such annexation, and
shall accompany the same with a map or plat, accurately describing
by metes and bounds the territory proposed to be attached, which shaU
be verified bj affidavit. Such trustees shall give thirty days' notice bj^
publication in a newspaper printed in such town, if any, otherwise in
the county, or if none there, by posting up such notice in five or more
public places within the corporation; a copy of such notice shall be
served on the owner or owners of such territory, if known, and are
residents of the county.

§ 50. County boaed to hear and order annexation.] The board
of county commissioners, upon the reception of such petition, shall
consider the same, and shall have the testimony offered for or against
such annexation, and if, after inspection of the map and the testi-
mony being heard, such board is of the opinion that the prayer of such
petition should be granted, it shall cause an entry to be made on the
order book, specifying the territory annexed, with the boundaries
thereof, according to the survey, which entry, or an attested copy
thereof, shall be conclusive evidence in all courts, of such annexation.

dissolution of corporation.

§ 51. Dissolution of corporation.] When an application signed by
one-third of the ' legal voters of any incorporated town, shall be pre-
sented to the board of triistees in writing, asking for a dissolution oi

■aH---3B!

80 Incorporation of Towns and Oitiis. Chaper 24.

the corporation, setting forth the reibsons therefor, it shall be compe-
tent for said board, if they deem the reasona good, to call a meeting of
the voters of said town by giviiig ten days' notice therctof, asjprovided
in this act, to determine whether sack corponatiosi shall be dissolved.
The board of truatees shall preside at such meeting, and a poU shall be
opened, as at any. other corporation electioti, and we yatexB shall vote
by ballot, " yes " or " no/' If a majority of all the votes given shall
have thereon the word " yes," and such votes ^^lall have been given by
two-fifths of all the legal voters in such town, a statement of flbe vote,
signed by the president and attested by the clerk, shall be filed in the
register of deed's office of the county, and such town shall, at the
expitation of six months from the time of holding such meeting, cease
to oe a corporation, and the property belonging to such corporation,
after the payment of its debi^ and liabilities, shall be disposed of in
such manner as a majority of the voters of such town at any special
meeting thereof may direct.

§ 52. Dissolution not to effect existing oontraots.] No such
dissolution shall aflfect the rights of any person in any contract or agree-
ment to which such corporation is a party.

§ 53. Proof of compliance with law by town.] Whenever any suit
shall be instituted by an incorporated town, it shall not be required to
show its compliance with any of the provisions of this act, as to its
organization, or publication of by-laws or ordinances, unless the same
is controverted by affidavit.

§ 54. Incorporated towns may adopt this act.) Any town hereto-
fore incorporated by special act, may, by a resolution of the board of
trustees or other municipal board thereof, entered upon the record
book of the corporation, become incorporated under this act, but the
same shall be deemed a surrender of all the rights and franchises
acquired under any former act of incorporation or acts amendatory
thereto. A copy of such resolution shall be filed With the rerister of
deeds of the proper county, and entered by him of record. Trustees
and other ofncers of such incorporated towns, by whatever name des-
ignated, performing duties of a like nature to those required of offi-
cers created by this act, shall continue to be the officers of such town,
by the name as specified in this act, until superceded by the annual
election.

§ 55. When debt not nullified.] No debt or liability due to or
from any incorporated town, shall be unpaid by reason of such town
being brought within the provisions of this act, and becoming incor-
porated under it.

§ 56. Proceedings for violation of ordinances;] Any person or
persons violating the provisions of any ordinance of a town organized
under this act, to which there may be a penalty affixed, shall be pre-
sented before the justice of the peace of such town, and that the jus-
tice of the peace of such town shall have exclusive jurisdiction, and
it shall be his duty to hear and determine all offenses against the ordi-
nances of the town.

miscellaneous provisions.

§ 57. How ordinanobs mat be proven.] All ordinances of the town
may be proven by the ordinance book of the town, or the certificate of

Chapter 24. Incobpobation of Towns and Citibs. 81

the clerk of the town, under seal of the town; and when printed in a
newspaper, or published in a book or pamphlet form, and purporting
to be published or printed by the authority of the town, shall be read
and received in all courts and places without further proof.

^ 58. Taxes asssssei) to vr a lien.] All taxes assessed by the board
of trustees of towns incorporated under the provisions of this act, for
the gradine, paving, or otherwise improving the streets of the town,
or for builaing or repairing sidewalks of the town, shall be a lien on
the lots or pieces of ground subject to the same, from the time the
amount thereof shall £ave been ascertained; and in case any error or
irregularity should occur in levying or collecting any such tax, proceed-
ings may be te/ken anew, so as to obviate any such error or irreg-
ularity.

§ 59. Taxes — how oollbotable, and penalty when delinquent.
Such special tax shall be due and may be collected as the improve-
ments are comnleted in front of, or along, or upon any block, lot, or
piece of ground, or at the time the improvement is completed, accord-
mg as shall be provided in the ordinance levying the tax. Such tax,
if not paid within thirty days after becoming due, shall have added
thereto a penalty of ton per cent., and shall bear interest from the day
of sale, at the rate of twenty-five per cent, per annum, to be computed
on the tax, penalty, and costs of sale.

g 60. What costs mat be included in tax.] The cost and expenses
of grading, filling, paving, macadamizing, culverting, curbing, and
ditehing, or otherwise improving streets, sidewalks, alleys, avenues,
or lanes at their intersections, may be included in the special tax levied
for the improvement of any street, sidewalk, alley, avenue, or lane, as
may be deemed best by the board of trustees of such town.

§ 61. Marshal's duty in relation to taxes.] When the special tax
is levied, it shall be the duty of the marshal of such town to calculate
the amount of tax on any block, lot, or piece of ground, and file a
statement thereof with the town clerk, who shall, as soon as the tax is
due on any block, lot, or piece of ground, issue a certificate describing
it, its number, and lot, and block, and stating the amount of tax due
thereon, and the name of the person entitled to the same, and the
purpose for which said tax was levied; and such certificate so given shall
De the tax warrant of the contractor, and shall be by the clerk placed
in the hands of the marshal, and he shall keep a record of all such
warrants, and entor on the margin of such records all amounts paid,
and by whom paid.

PROCEEDINGS IN CITY JUSTICE'S COURT.

"^§ 62. Duty op justice on complaint being made.] Whenever com-
plaint shall be made to the justice of the peace of a town organized
under the provisions of this act, upon the oath or affirmation of any
person competent to testify against the accused, that an offense has
been committed of which such justice of the peace has jurisdiction,
said justice of the peace shall forthwith issue a warrant for the arrest '
of the offender, which warrant shall be served by the marshal, or some
person specially appointed by such justice of the peace for that purpose.
§ 63. Duty oe justice when defendant appears.] When any person
shall be brought before such, justice of the peace upon such warranty it

1

82

Jnoorpobation op Towns and Cities. Chapter 24.

shall be bis duty to hear and determine the complaint alleged against
the defendant.

§ 64. PSOCBBDINOS WHBRB TRIAL 18 POSTPONED.] Upon gOOd CaUSe

shown, such justipe of the peace may postpone the tnal of the cause
to a day certain, in which case he shall require the defendant to enter
into bond with sufiGicient security, conditioned that he will appear
before such justice of the peace at the time and place appointeo, and
then and there to answer the complaint alleged against him.

§ 65. JitSTiGE TO SUMMON WITNESSES.] It shall be the duty of such
justice of the peace to summon all persons whose testimony may be
deemed matenal as witnesses at the trial, and to enforce their attend-
ance by attachment if necessary, and when a trial shall be continued
by such justice of the peace, he may verbally notify such witnesses as
may be present at the continuance to attend before him to testify in
the. cause set for trial, and such verbal notice shall be as valid as a
summons. '

§ 66. Trials — how <3K>vebned.] All trials before such justice of the
peace shall be governed by the criminal procedure applicable to
justices' courts.

§ 67. When defendant pound guilty justice to render judo-
MBNT.] In all trials for offenses under the ordinances of the town
incorporated under and by the provisions of this act, if the defendant
is found guilty, such justice of the peace shall render judgment
accordingly, it shall be part of the judgment that the defendant stand
committed until the judgment be comphed with; in no case to exceed
one day for every seventy-five cents of the fine and costs assessed
against said defendant.

§ 68. Justices peacb officers.] Such justice of the peace shall be
a conservator of the peace, and his court shall be open every dav,
except Sunday, to hear and determine any and all cases coffnizable
before him; and he shall have power to bring parties forthwiw before
him for trial; and no act shall be performed by him on Sunday, except
to receive complaints, issue process, and take bail.

§ 69. Appeals to be allowed, and conditions.] In all cases before
such justice of the peace, an appeal may be taken by the defendant to
the district court of the county in which such town is situated; but
no appeal shall be allowed unless such defendant shall, within ten
days, enter into recognizance with sufficient securities, to be approved
by such justice of the peace, conditioned for the payment of the fine
and costs, and coats of appeal, and that he will render himself in execu-
tion thereof if it should be determined against the appellant.

§70. On conviction -how punished.] Any ^ei:son convicted before
such justice of the peace of an offence under the ordinances of the
town, shall be punished by fine as may be regulated by ordinances.

§ 71. Power* op justice — exceptions— when jury called.] The
justice of the peace of the town organized under the provisions of this
act, shall have power to enforce obedience to all orders, rules, judg-
' ments and decrees made by him; and he may fine or imprison for
contempt offered to him while holding his court, or to process issued,
or orders made by him in the same manner and to the same extent as
provided for courts of justice of the peace. On the trial of any case
m said court, it shall be the duty of such justice of the peace to sign

Chapter 25, TowNdifBd. 83

any bill of exeeptions rendered to the conrt during the progress of
snch trial; Provided, The truth of the matter be fairly stated, and
thereupon said exceptions shall be entered in the record of such trial
and become a part thereof; and any final conTiction, sentence, or
judgment of said court may be examined by the district court of the
county in which such town is situated, on writ of error, which may
be allowed by the district court or the judge thereof, for sufficient
cause, and proceedings may be stayed as may be deemed reasonable,
and the revising court shall, in such proceedings, take judicial notice
of all the ordinances of such town, uases before such justices of the
peace, arising under town ordinances, shall be tried and determined
by such justice of the peace without the intervention of a jury, unless
the defendant demand a trial by jury; and when a demand shall be so
made, the trial shall be by jury of twelve citizens of such town, hav-
ing the qualifications of jurors, who shall be summoned by the mar-
shals of such town upon a venire issued by such justice of the peace.
That the venire for a jury shall contain eighteen names, three of
whom shall be stricken oflF the list by the defendant, and three by the
marshal of such town ; the remaining twelve names shall constitute
a jury for the trial of a cause. If there is any challenges for cause,
such justice of the peace shall trv the question in a summary manner, .
who may examine the challenged jurors under oath.

§ 72. Fees op jubors.] Such jurors shall be paid fifty cents for their
services as jurors in each case.

§ 73. Costs taxed to defendant.] In case the defendant is found
guilty, the costs of the jury shall be taxed against him as a pait of
the costs of the case, and the amount thereof shall be a part of the
judgment.

§ 74. Proceedings - - how governed.] In all cases not herein
specially provided for, the process and proceedings of the court of such
justice of the peace shall be governed by the laws regulating proceed-
ings in justices' courts in criminal cases.

CHAPTEK XXV- KvV

Townsites.

§ 1. Corporate authorities determine by ordinance shares op
CLAIMANTS, AND MAKE DEED.] When any city, town, or village, holds
the title of any lands in trust, under and by virtue of the acts of con-
gress, approved March 2d, 1867, and June 8th, 1868, the mayor and
u common council, the president and trustees, or other general corporate
} authorities thereof, shall ascertain and by ordinance declare the per-
' sons who are severally entitled to each and every block, lot, share, or
I parcel thereof, according to his, her, or their several and respective
rights, claim, or interest, in and to the same, as they existed in law or

84 Town ani> City Plats. Chapter 26.

equity at the time of the entry of such lands; and thereupon, and in
accordance with such ordinance, the mayor, president, or other chief
officer of such city, village, or town, or his successor in office, shall, by
a good and sufficient deed of conveyance, grant and convey the title of
all such blocks, lots, shares, or parcels, to the person or persons 80
declared entitled to the same, or to his, her, or their heirs or assigns.

§ 2. Mayor and olebk sxecute dbed.J Every such grant or deed
of conveyance shall be executed by the mayor, president, or other
chief officer of the corporation, signing and acknowledging the same
as provided for grants of real property in the civil code; and the clerks
or secretary of such corporation shall also attest the same by his official
signature and the corporate* seal.

§ 3. Dbed only prima facie evidence.] When any such block, lot,
share, or parcel of such land shall be claimed by two or more persons,
the respective right, title, claim, and interest, of such persons in rela-
tion to each other in the same, shall not be determined finally, nor iu
any way changed, affected, or impaired by reason of such ordinance
and granl^ except that such grant shall be prima facie evidence only of
such title, and snail place the party receiving the same in possession
until the title is otherwise determined.

§ 4. Extent op powers herein granted.] The powers and duties
herein granted and defined^ shall also extend to the execution of con-
veyances, for the purpose of definiag and settling boundaries and other
questions of title to such blocks, lots, shares, or parcels of the real
property included by the site which may be unoccupied, and over which
such corporate authorities have control under said acts of congress;
and also to the execution of any map or chart of the survey of such
city, town, or village, and of grants of any part of such site which has
been set apart or dedicated for such purposes, to the corporation, or
county, for public use in any way, and to grant to the public use all
streets, avenues, alleys, parks, squares, or other authorized title, or
easement, for the public use and benefit.

CHAPTER XXVI.

Town and City Plats.

§ 1. Survey and plat necb8saey.[ When any person wishes to lay
out a town in this territory, or an addition or subdivision of out-lots,
such person shall cause the same to be surveyed, and a plat thereof
made, which shall particularly describe and set forth all the streets,
alleys, commons, or public grounds, and all in and out-lots or fractloual
lots, within or adjoining to said town, giving the names, width, courses,
boundaries, and extent of all such streets and alleys.

§ 2. Lots and squares numbered.] All the in-lots intended for sale
shall be numbered in progressive numbers, or by squares in which they

Chapter 26. Town and City Plats. 85

are situated, and their precise length and width shall, be stated on said
map or plat; and out-lots shall not exceed ten acres in size, and shall,
in like manner, be surveyed and numbered, and their precise length
and width stated on the plat or map, together with any streets, alleys,
or roads, which shall divide or border the same.

§ 3. Base line how formed.) The proprietor or proprietors of the
town, addition, or subdivision of out-lots, by themselves, or agents,
shall, at the time of surveying and laying the same, cause to be planted
and firmly fixed in the ground, on the line of the main streets of said
town, two good and sufficient stones, of such size and dimension as the
surveyor shall direct. Said stones to be at least two hundred and fiftv
yards apart, and the lines thus formed shall be a base line from which
to make future surveys; and the point or points where the same may
be found, shall be distinguished on the plat or map.

§ 4. Plat or map certified and acknowledged.] The plat or map,
after having been completed, shall be certified by the surveyor and the
officers; and every person or persons whose duty it shall be to comply
with the foregoing requisitions, shall, at or before the time of offering
said plat or map tor record, acknowledge the same before any person
authorized to take the acknowledgment of deeds. A. certificate of such
acknowledgment shall, by the officer taking the same, be indorsed on
the plat or map, which certificate of the survey and acknowledgment
shall also be recorded, and form a part of the record.

§ 5. Op lands donated or granted— op land for streets.] When
the plat or map shall have been made out and certified, acknowledged
and recorded, as required by this chapter, every donation or grant to
the public, or any individual or individuals, religious society or socie-
ties, or to any corporation or body politic, marked or noted as such
on said plat or map, shall be deemed, in law and equity, a sufficient
conveyance to vest the fee-simple of all such parcel or parcels of land
as are therein expressed, and shall be considered to all intents and pur-
poses a general warranty against such donor or donors, their heirs or
representatives, to said donee or donees, grantee or grantees, for his,
her or their use, for the uses and purposes therein named, expressed
and intended, and no other use and purpose whatever; and the land
intended to be used for the streets, alleys, ways, commons, or other
public uses, in any town or city or addition thereto, shall be held in the
corporate name thereof, in trust to and for the use and purposes set
forth and expressed or intended.

§ 6. If county not organized, plat recorded where.] If the
county in which said town or addition is situated shall not be organ-
ized, then, in that case, the plat or map shall be recorded in the reg-
ister's office of that county to which the county in which said town is
situated shall at the time be attached for judicial purposes.

§ 7. Towns laid out to comply with this act.] When any town,
addition or subdivision has been heretofore laid out and lots sold in
this territory, by agents or proprietors, and a plat or map of the same
has not been acknowledged and recorded in conformity with acts here-
tofore in force, it shall Be the duty, and it is hereby required of the
county commissioners, or a majority of them, in such county, or pro-

f)rietor or proprietors, who have laid out the same, or his, her or their
egal representatives, to have the same fairly, fully and clearly made

86 Town and Citt Plats. Chapter 26.

out, acknowledge^ and reoorded in the proper county, in the form and
manner required by this chapter; noticing and particularly describing
the donation of lands or otherwise to individual societies, bodies politic,
or for common or public purposes; Provided, That if the lote shall
have been differently num oered and sales made, and they cannot be
well changed, they shall be returned as originally stated, but in all
other respects the plat or map shall conform to the requisitions of thi*s
chapter.

§ 8. Fees of surveyor and register.] The surveyor who shall lay
out, survey and plat any town or addition, shall be entitled to receive
twenty-five cents for each and every in and out-lot the same may con-
tain, unless otherwise agreed, and the register of deeds of the county
recording the same^ shall receive the sum of two cents for each and
every lot as aforesaid, the 3aid plat and survey to be by him tran-
scribed or copied into a book to be provided for that purpose,

§ 9. Penalty if sale or lease offered before this act is complied
wiTH.J If any person or persons shall dispose of, offer for sale or lease
for any time any out or in-lots in any town or city, or in any addition
to any town or city, or any part thereof, which shall hereafter be laid
out, until all the foregoing requisitions of this chapter shall have been
complied with, every person so offending shall forfeit and pay the sum
of ten dollars for eacn and every lot or part of a lot sold or disposed
of, leased or offered for sale.

§ 10. Penalty if officer or other person neolect to do duty.]
If any officer or other person or persons whose dutv it is to comply
with any of the reauisitions of this chapter shall neglect or refuse so
to do, he or they shall forfeit and pay a sum of not less than ten nor more
than one hundred dollars for each and every month he or they shall
delay a compliance.

§ 11. Towns heretofore laid out must be recorded within thrbk
MONTHS.] All towns heretofore laid out shall be platted or mapped in
accordance within the provisions of this chapter, and the plats or
maps of the same shall be recorded within three months from the pas-
sage of this chapter, in the office of the register of deeds of the proper
county.

§ 12. Of forfeitures and liabilities.] All forfeitures and liabil-
ities which may be incurred or arise under this chapter shall be prose-
cuted for, and recovered in the name of the county treasurer, and any
officer or officers paying over any money to the said treasurer, received
under any of the provisions of this chapter, shall take his receipt
therefor, and forthwith file the said receipt with the clerk of the board
of county commissioners, and the said clerk shall charge the amount
of said receipt against said treasurer on the books of the county com-
missioners.

§ 13. District court may alter or vacate towns.] The district
courts are hereby authorized and empowered, on application made by
the proprietors of any town within their proper county, to alter or
vacate the same or any part thereof.

§ 14. Notice of application for vacation — how oiven.] If any
proprietor or proprietors of a town shall be desirous of altering or
vacating the same, or any part thereof, such proprietor or proprietors
shall give notice in writing of such intended application in at least

Chapter 27, Elections. 87

two of the most public places in the county wherein such town may
be situated, and insert a copy thereof in a newspaper printed or in
circulation in said county, if there be one, at least forty days prior to
the sitting of the court to which he or ihey intend to make such
application.

§ 15. Proceedings before court.] If such applicant or applicants
shall produce to said court satisfactory evidence that the notice
required by the preceding section of this chapter has been given, the
court shall proceed to hear and determine said petition, and may
alter or vacate said town or any part thereof, and order their proceed-
ings thereon to be recorded by the clerk with the records of said
court

CHAPTER XXVII.

Elections.

§ 1. This chapter governs all except special elections.] All
elections for territorial, district, county, township, precinct, city, and
other officers provided by law, shall hereafter be held and conaucted
in the manner prescribed in this chapter; except as otherwise spe-
cially provided for schools in incorporated cities and towns, and for
the division of a county into civil townships.

§ 2. General election annual in November.] The general elec-
tion shall be held in the several election precincts on the Tuesday next
after the first Monday in November in each year, at which election
shall be chosen as many officers as are by law to be elected.

§3. Appointment op judges - precincts — service of notices.]
The several boards of county commissioners shall, respectively^ at least
thirtv days prior to the general election in each year, appoint three
capable and discreet persons, possessing the qualifications of electors,
to act as judges of election at each precinct and for each of the polls
of election, as provided for in this act, and when necessary, to set off
and establish election precincts or districts; and the county clerks of
the several counties shall make out and deliver to the sheriff, coroner,
or other person that may be designated by the board of county com-
missioners of each county, immediately after the appointoiient of said
judges of election, a notice in writing thereof, directed to the judges
of election so appointed; and it shall be the duty of such sheriff, cor-
oner, or other person appointed as provided in this section, within ten
days after receiving sucn notice, to serve the same upon each of the
said judges of election. eV .7^ «l. ts\^\

§4. Judges CHOOSE CLERKS - term of judobb and clerks.- -The
said judges shall choose two persons having similar qualifications with
themselves, to act as clerks of the election. The said judges shall be
and continue judges of all elections of civil officers to be held at their

^^^S553H

mmi

88 Elsctions. Chapter 57.

respective precinctB, until other judges shall be appointed as herein-
before directed, and the said clerks of election may continue to act as
such during the pleasure of the judges of election, and the county
commissioners shall, from time to time, fill all vacancies which may
occur in the office of judges of elections, at any election precinct
within their respective counties. »

§ 5. Notice to bb pobtbd by county clbrk.] The county clerks
of the several counties shall, at least thirty days before any generaU
and at least ten days before any special election, make out and deliver
to the sheriff, coroner, or other person to be designated by them, of their
respective counties, three written notices thereof for each election pre-
cinct; said notices to be, as nearly as circumstances will admit, as
follows, to wit:

Notice is hereby given, that on the second Tuesday, the day of next,

at the house of •, in the town, district, or precinct of , in theconnty

of , an election to be held for territorial, township, or district offices (naming the

offices to be filled as the cale may be), which election will be opened at nine o*clock in the
morning, and will continue open until four o'clock in the afternoon of th^ same day.

Dated this day of ...»•..•, A. D. 18. ., (at the ease ma^r be).

(Signed,) A. B , 0)unty Qerk.

§ 6. Officer to post such notices, when and where.] The sheriff,
coroner, or other person to whom such notice shall be delivered as
aforesaid, shall put up in three of the most public places in each town-
ship or district, the notice referring to such district, precinct, or town,
at least twenty days previous to the time of holding any general
eletition, and at least eight days previous to the time of hold-
ing any special election, and in cases where towns or districts may not
be set off by law as election precincts, said notices shall be posted as
follows: One at the house wnere^the election is authorized to be held,
and two others at two of the most public places in that vicinity or
settlement.

I 7. Electors to choose judges, if vacancy.] If anv person ap-
pointed to act as judge of election, as aforesaid, shall neglect or reftise
to be sworn to act in such capacity, or shall not be present, the place
of such person shall be filled by the votes of such qualified electors
residing within the county, town, district, or precinct, as may then be
present, at the place of election, and the person or persons so elected
to fill the vacancy or vacancies, shall be and are hereby vested, for
that election, with the same power as if appointed by the board of
county commissioners.

§ 8. Oath of judges and clerks.] Previous to votes being taken,
the judges and the clerks of the election shall severally take an oath, in
the following form, to wit:

I, A B, do solemnly swear (or affirm, as the case may be), tiiat I will perform the duties of
judee (or clerk, as the case may be), according to law and the best of my ability; that I will
stuaioasly endeavor to prevent fraud, deceit and abuse in conducting the same.

§ 9. Who to administer oath.] In case there shall be no judge of
a court or justice of the peace present at the opening of the election,
or in case such jud^e or justice shall be appointed judge or clerk of
the election, it shall be lawful for the judges of the election, ai)d they
are hereby empowered to administer the oath to each other, and to the
clerks of the election ; and the person administering oaths shall cause

Chapter 27. Eleotioks. 89

an entry thereof to be made and subsmbed by him and prefixed to
the poll book.

§»10. When pollb to bb opened and closed — adjournment for^.***
DINNER.] At all elections to be held under this act, the polls shall be -^ ^ ^ T> "^ *^
opened at the hours of nine o'clock in the forenoon and continue j
open until four o'clock in the afternoon of the same day, at which C|v H | •
tune the polls shall be closed. Thirty minutes before the closing of < JT j
the polls, proclamation shall be made that the poll will be closed in ^' **
half an hour, but the board may^ in their discretion, adiourn the polls
at twelve o'clock, noon, for one hour, proclamation of the same being
made.

§ 11. Penalty for rejecting legal vote.] Any board of judges
who shall willfully axid knowingly reject any legal vote, shall be sub-
ject to a fine of fifty dollars, to De collected before any justice of the
p^bce, for the use of common schools, on the complaint and proof of
any person.

§ 12. Manner of voting and form of ballot.] Every elector shall
vote by ballot, and each person offering to vote shall deliver his ballot
to one of the judges of election, in presence of the board. The ballot
shall be a paper ticket, which shall contain, written or printed, or part-
ly written and partly printed, the names of the persons for whom the
electors intend to vote, and shall designate the office to which each
person so named is intended by him to be chosen; bdt no ballot shall
contain a greater number of names of persons designated to any office
than there are persons to be chosen at the election to fill such office Jwi 2 (JL-^S>

§ 13. All names voted for to be on one tiokbt.] The names of all
persons voted for by any elector at any general election, or special
election, shall be on one ballot.

§ 14. PROCEEDINGfl IN CASE OF CHALLENGE, AND OATH OF ELECTOR.] If

any person offering to vote shall be challenged as unqualified, by any
judge or clerk of election, or by any other person entitled to vote at
the same poll, the board of judges shall declare to the person so
challenged the Qualifications of an elector; if such person snail then
state himself duly qualified, and the challenge shall not be withdrawn,
one of the judges shall tender the following oatii:

Tou'do solemnly swear (or affirm, as the case may be), that you are twenty-one years of age,
th»t you are a citizen of the United States (or that you hare declared your intention to become
A citizen conformablv to the laws of the United States, and pf this territory, on the subject of
naturalization, and have taken an oath to support the constitution of the United States^, that
jou have resided in this territory ninety days, and in this county twenty days, and in this
precinct five days next preceding in is election ; that yau hare not voted at this ejection.

And if any person so challenged shall refiise to take such oath so
tendered, his vote shall be rejected; and, after taking such oath, if the
judges have good reason to believe that the person iso offering to vote
is not a legal voter, before receiving his vote they shall require him to
subscribe the oath, which shall be written out and preserved with the
poll books for future reference.

§ 15. Penalty for pkejury*] If any person so offering such vote
shall terke such oath, knowing it to be false, he shall be deemed guilty
of willfnl and corrupt perjury, and shall, on conviction, suffer such
punishment as now is, or shall hereafter be prescribed by law for
persmis guilty of perjury.

90 ELBonoBTS. Chapter 27.

§ 16. JuBGBS TO KfijBP BAUiOT BOX.] There shall be provided and
kept by the judges of each election precinct, at the expense of. .the
county in which such precincts are situated, a suitable ballot box with
lock and key.

817. Style of ballot box and duty op judmjs.] There shall be an
opening through the lid of such box, of no larger size than shall be
sufficient to aomit a single folded ballot. Before opening the polls the
ballot box shall be carerally examined by the judges of tne election,
that nothing may remain therein; it shall then be locked, and the key-
thereof delivered to one of the judges to be designated by the board,
and shall not be opened during the election, except in the manner and
for the purposes hereinafter mentioned.

§ 18. Judges to deposit ballot in box.] When a ballot shall be
received, one of the judges, without opening the same, or permitting
it to be opened or examined, except to ascertain whether it be a single
ballot, shall deposit it in the ballot box.

§ 19. Clebk to keep poll list.] Each clerk of election shall keep
a poll list which shall contain the names of all the persons voting at
such election in their numerical order.

1 20. Duty op glebes on adjouenmbnt poe dinneb.] At each
adjournment of the polls for dinner, the clerks shall, in presence of
the judges, compare their respective poll lists, compute and set down
the number of voteg^ and correct all mistakes that may be discovered,
according to the decision of the board, until such poll lists shall be
made, in all respects, to correspond.

§ 21. Pboteoting box on adjouenmbnt foe dinnbe.] The box shall
then be opened and the poll list placed therein; and said box shall then
be locked, and a covering with a seal placed on the opening in the lid of
such box, so as entirelv to cover the same, and the key aelivered to
one of the judges, and the box to another, to be designated by the
board.

§ 22. Disposition of key and box.] The judge having the key shall
keep it in his own possession, and deliver it again to the board at the
next opening of the polls; and the person having the box shall care-
fully keep it without opening it, or suffering it to be opened, or the
seal thereof to be broken or removed; and shall publicly in that con-
dition, deliver it to the board of judges at the next opening of tiiepoll,
when the seal shall be broken, the box opened, the poll list taken out
and the box again locked.

S 23. Duty OF JTJDOE TO CHALLENGE.] It shall be the duty of the
judge of election, to challenge every person offering to vote, whom he
shall know or suspect not to oe qualined as an elector.

§ 24. Judges may appoint special constables, ooHMiT and fine fob
DisoBDEBLY ooNDuoT.l For the preservation of order, as well as to
secure the judges ana clerks from insult and abuse, it shall be the duty
of the consrfcable or constables residing in the town, district or pre-
cinct, and should no constable attend at such elections, the judges of
elections are hereby authorized and empowered to appoint one or
more special constables to assist in preserving order during the election;
and the judges are hereby authorized to enforce a fine not exceeding
fifty dollars on any person or persons who shall conduct in a disor-
derly or riotous manner, and shall persist in such conduct after having

Chapter 27.

Elections.

91

been warned of the oonseauences, and on refusing to pay the same, to
commit Mm, or them, to tne common jail of the county for any time
not exceeding twenty days, or until the same shall be paid ; and the
constable to whom the order shall be directed, and the jailer of the
county, are hereby required to execute said order, and receive such
person or persons, so committed, as though it had been issued by a
magistrate in due form of law.

§ 25. Duty of judges after closing polls.] As soon as the poll
of the election shall be finally closed, the judges shall immediately
proceed to canvass the vote given at such election, and the canvass
shall be public, and shall hd continued without adjournment until
completed.

§ 26. Manner of conducting the canvass.] The canvass shall com-
mence by a comparison of the poll lists from the commencement, and
a correction of any mistake that may be found therein, until they shall
be found or made to agree. The box shall then be opened, and the
ballots contained therein be -taken out, and counted by the judges
unopened, except so far as to ascertain whether each ballot is single,
and if two or more ballots shall be found so folded together as to pre-
sent the appearance of a single ballot, they shall be laid aside until
the count of the ballot shall l)e completed; and if upon a comparison
of the count with the poll lists, and the appearance of such ballots, a
majority of such judges shall be of opinion that the ballots thus folded
together were voted oy one elector, tney shall be destroyed.

§ 27. If ballots and poll lists disagree.]. If the ballots in the
box shall be found to exceed in number the whole number of votes on
the poll lists, they shall be replaced in the box, after being purged as
above, and one of the judges shall publicly draw out and destroy
therefrom as many ballots, unopened, as^^hall be eaual to such excess.

§ 28. Duty of clerks in canvassing votes;] Tne ballot and poll
list agreeing, or being made to agree, the board shail then proceed
to count and ascertain the number of votes cast, and the clerks shall
set down in their poll books the name of every person voted for, writ-
ten at full length, the office for which such person received such votes,
and the number he did receive, the number being expressed at full
length, such entry to be made, as nearly as circumstances will admit,
in the following form, to wit :

At an election held ftt the house of A B, in the town, district or precinct, in the county of

, and Territory (A' Dakota, on the day of. / , the folio win f^ named persons receiyed

the number of yotes annexed to their respective names for the following described ojQlces,

to wit: A B had votes for delegate to congress; C D had votes for the legislativfe

council ; E F had votes for member of the hoase of representatives,' G H had

votes for coroner; I J had votes for sheriff ; K L hadi votes for couBty eommis-

sioner (and in like manner for any other persons voted for). Certified by us, A B, C D, £ F,
judges of election. Attest : G H, I K, clerks of election.

§ 29. Judge to fobward one poll book to county clerk.] The
judges of election shall then enclose and seal one of the poll books,
ana, nnder cover, direct the same to the county clerk of the county in
which such election was held, and the packet thus sealed shall be cour
veyed by one of the judges or clerte oi election, to be determined by
lot if they cannot otherwise affree, or by some other person to be
an-eed upon by the judges^ and delivered to said county clerk, at his
omce, within three days after the closing of the polls, and the other

H

98 Elwotions. Chapter 27.

poll book, together with the ballots and ballot box, deposited with the
chairman of the board of county commissioners, and the said xm>U
book shall be subject to inspection at any time thereafter.0».7¥a. ^,^i

§ 30. Penalty for nbgleot to deliver poll book to county clerk.]
If any judge or cleric of election, affcer being deputed by the judges of
election .at which he shall have served as judge or clerk, to carry the

Soil books of such election to the county clerk, or any other person
eputed for that purpose, shall willfully refuse or neglect to aeliver
such poll book to the said county clerk, within the time specified by
law, safe with the seals unbroken, he shall be deemed guilt;^ of a misde-
meanor,, and upon conviction, shall be punished by fine not exceedinff
five hundred dollars, or by imprisonment in the county jail not exceed-

> ing twelve months, or by both such fine and imprisonment.
^.i/ti.t^<^v g 81t' County clerk to make separate abstracts, ac] On the

.fifteenth day after the close of any election, or as soon as all the
returns are received, the county clerk, taking to his assistance a
majority of the county commissioners of the county, or the judge of

-the probate court and one county commissioner, shall proceed to
open said returns and makfe abstracts of the votes in the following
maniler; the abstract of the votes for delegate to congress shall be on
one sheet; the abstract of votes for member of the legislative assembly
shall be on one sheet; the abstract of votes for the county and pre-
cinct officers shall be on one sheet; and it shall be the duty of the said
counity clerk immediately to make out a certificate of election to each
of the persons having the highest number of votes for members of the
legislative assembly, county, and precinct oflScers, respectively, and to
deliver said certificate to the person entitled to it, on his making
application to the county clerk at his office; Providedj That when a
tie shall exist between two or more persons for the council and house
of representatives, the county clerk shall give notice to the sheriff of
the county, who shall immediately advertise another election, giving
at least ten days' notice; and it shall be the duty of the county clerk
of each county, on the receipt of the returns of any general or speciah
election to make out his certificate, stating therein the compensation
to which the judges and clerks of election may be entitled for . their
services, and lay the same before the board of commissioners at
their'next session, and the said board shall order the compensation
aforesaid to be paid out of the county treasury. And immediately
after canvassing the returns and making the abstracts of votes as
provided in this section, the county clerk shall make a certified copy
of each abstract and forward the same to the secretary of the territory.
§ 32. Duty of register « case op tie.] If the requisite number of
county officers shall not be elected, by reason of two or more persons
having an equal and the highest number of votes for one and the same
office, the county clerk, whose duty it is to compare the polls, shall
give notice to the several persons so having the highest and equal
number of votes to attend at the office of the proper county clerk, at
the time to be appointed by the said county clerk, who shall then and
there proceed publicly to decide by lot, which of the persons so havinc
an equal number of votes, shall be declared duly elected, and the saia
county clerk shall make and deliver to the person thus declared duly
elected a certificate of his election as hereinbefore provided.

. Chapter 27. Elbotion^ 98

§ 33. TsBBiTOBJAL cANYAfifliBBS — tBxi& DITTIES. ] And it shsJl be the
duty of the secretary of the territoiy, with the chie.f justice and the
governor^ or a majority of them, to proceed within fifty days after the
election, to canvass the votes for delegate to congress and other terri-
torial officers, and the ^vernor shall grant a certificate of election to
the person having the highest number of votes, and shall also issue a
proclamation declaring the election of such person. In case there
shall be no choice by reason of any two or more persons having an
equal and the highest number of votes, the governor shall, by procla-
mation, order a new election; Provided^ That if either of the persons
mentioned in this section as canvasseirs be a candidate for delicate to
congress, such person shall take no part in the canvass of said votes.

§ 34. Whsn rbturns not BBCBiVBDh— hsssbnoeb, how paid.] That
if the returns of election of any organized county in this territory,
shall not be received at the office of the secretary of the territory
within thirty days after the day of election, the said secretary shall
forthwith send a messenger to the county clerk of such county, whose
duty it shall be to fumisn.said messenger with a certified copy of such
returns, and the said messenger shall be paid out of the treasury of
the territory the sum of ten cents per mile for each mile he shall neces*
sarily travel in going to and returning from the office of the said
county clerk; and the territorial treasurer shall present a bill against
the county not sending thp election returns within time to the
office of tli^ secretary oi tiie territory, and such bill shall be presented
to the board of county commissioners of such county for the whole
amount paid to such messenger, and the county commissioners, when
such bill is presented, shall allow the same in full, and shall issue a
warrant for the amount of the bill so presented, and such warrant
shall be paid in cash by the county treasurer of such county whenever
the same is presented, or as soon thereafter as any money is received
in such county treasurer's office.

§ 35. Resignations and vacancies.] Any person who shall receive
a certificate of his election as a member of the council or house of
representatives of the legisl itive assembly, sheriff, probate judge, reg*
ister of deeds, coroner^ or county commisssioner, shall be at liberty to
resign such office, though he majr not have entered upon the execution
of ite duties, or taken the requisite oath of office; and when any
vacancy shall happen in the office of the member of the council or
house of representatives of the legislative assembly, by death, resig-
nation or otherwise, it shall be the duty of the county clerk of the
county iii which the vacancy has occurred, to officially noti^ the gov-
ernor thereof; whereupon t^e governor shall issue a writ of election,
directed to the sheriff of the county or district in which such vacancy
shaJl happen^ commanding him. to notify the several judges of election
in his county or district, to hold a special election to fill such vacancy
or vacancies, at a time to beaippointed by the governor; Provided^ That
if there be no session of the legislative assembly between the happening
of such vacancy or vacancies and the time of the general election, il
shall not be. necessary to order a special election to fill such vacancy;
and when any vacancy shall happen in the office of delegate to congress
from this territory, it shall be the duty of the governor to issue his
proclamation appointing a day to hold, a special election to fill such
vacancy.

• *

94 EtsmioNs. Chapter 27.

§ 36. Two ootTNTiis ATTAOsiSB.] When two or more counties are
united in one cojincil or representative district, the county clerk of
the county last established shall, within twenty days after the day of
election, attend at the office of the county clerk of the senior county,
and in conjunction with the clerk of the senior county or counties,
shall compare the votes given in the several counties comprising such
council or representative district, and said clerks shall immediately
make out a certificate of the person or persons having the highest
number of votes in such counties, for member or members of the
council or house of representatives of the legislative assembly, which
certificate shall be delivered to the person entitled to it, on his a'Pjpli*
cation to the register (rf^ deeds of the senior county, at his office;
Provided^ That the county €>f Cass be aoad is hereby declared the senior
county in any district within which it is or may be includedxlnv-L.i^* x

% 37. Duty of govbrkor.] Should any vacancy happen in the office
of members of the council or house of representatives of the legisla-
tive assembly while in session, by deatn, resignation, removal, or
otherwise^ it shall be the duty of* the governor, immediately upon
receiving official notification of the same, to proceed in the same man-
ner as is prescribed for other cases in the thirty-fifth section of this act.

§ 38. OoMPBNSATiON OP JCDOSs, Ao.] There shall be allowed out of
the county treasury of each county, to the several judges and clerks
of election, two dollars per day, and the person carrying the poll books
from the placeof eflection to the county clerk's office, the sum of five
cents per mile for going and returning.

§ 89. Divided suBssQi^Eiirr to rlbotion.] If a vacancy shall occur
in the council or house of representatives in this territory, from any
cause, and if the county or counties comprising the district in which
such vacancy has happened, shall have been divided after the election
of the member whose seat is vacant, and before the election to supply
the vacancy, such election shall be ordered in every county in which
any- part of the original county or district may be situated ; but no
person shall be permitted to vote at such election who does not at the
time reside within the limits of the original county or district in
which such vacancy occurred; Provided, That nothing herein contained
shall be so construed as to permit any person to vote so residing within
the limits, who has not the 9ther qualifications of an elector.

§ 40. Duty of county olkkks.] In cases of elections to fill vacan-
cies, as provided for in this act, immediately after receiving the election
returns from the several precincts, the county clerk shall, as provided
in this act, proceed to canvass the votes returned, and without delay
forward to the secretary of the territory the copies of the abstracts of
the same.

8 41. County clbrk shall canvass rbturns.] No election returns
shall be refused by afty county clerk for the reason that the same may
be returned or delivered to him in any oidier than the manner directed
in this chapter, nor shall he refuse to include any returns in his esti-
mate of votes for any informality in holding an election, or making
returns thereof; but all returns shall be received and the votes can-
vassed by such county clerk, and a certificate given to the person or
persons who may, by such returns, have the greatest number of votes.

Chapters?. Elections. 96

§ 42. Penalty foe violation.] If any jucjge or clerk of election, or
county clerk, or any other person, in any manner concerned in con-
ducting the election, shall corruptly violate any of the provisions of
this chapter, he shall forfeit and pay to the county a sum not less than
fifty nor more than five hundred dollars, to be recovered by a civil
action in the name -of the county commissioners of the proper county,
which money, when collected, shall be for the support of the common
schools in said county.

§ 43. Pebson elected.] In all elections for the choice of any officer,
unless it is otherwise expressly provided, the person having the highest
number of votes for any office, shall be deemed to have been elected
to that office.

§ 44. No CIVIL PBOOBSS SERVED.] During the day on which any
general, special, town, precinct, or charter election shall be held, no
civil process shall be served on any elector entitled to vote at such
election.

§ 45. Canvassers — how to proceed — penalty.] The county clerk
shall not construe the statutes concerning the canvassing of the election
returns so as to decide all matters of law and fact himself, but the
county clerk aforesaid, and the jpersons called to his assistance, shall
constitute a board, a majority of whoin shall decide all matters of dis-
agreement, and the said board shall disregard technicalities and mis-
spelling, the use of initial letters, or abbreviations of the name of
candidates for office, if it cap. be £^ertained from such ^otes for whom
they are intended, but they shall not cotint votes polled in any place
but at established precincts, and a breach of the provisions of this
section shall be deemed a misdemeanor in office, and punished
accordinrfy.

§ 46. Poll books — ^how delivered.] It shall be the duty of the
county clerk to provide uniform poll books ior the use of his county,
^h poll book containing a copy of the law prescribing the qualifica-
tions of electors, and so much of this act as relates to the duties of
judges and clerks of election, and the penalties imposed for ofienses;
also containing blanks for all entries required to be made in the said
poll books, at the time the said clerk delivered notice for an election
to the sheriff of his county, as provided for in this act; he shall also
deliver to the sheriff two copies of said poll books for an election pre-
cinct» and the sheriff shall deliver the s^me into the hands of one of
the judges of election, and the judges of election receiving the said poll
books shall deliver or cause the same to be delivered to the clerks on
the day of election.

. § 47. Who entitled to vote.] Every male person above the age
of twenty-one years, who shall have been a resident of the territory
ninety days, twenty days in the county, and five days in the precinct,
next preceding the election, who is a citizen of the United States, or
who has declared upon his oath his intention to become such, and shall
have taken an oath to support the constitution of the United States,
and persons who have been declared by law to be citizens of the ter-
ritory, and shall have complied with the provisions of any law which
is no^ or may in future be in force relating to the registration of
voters, shall be entitled to vote^ and all persons possessing the
qualifications mentioned in this section, and who have resided in this

RxvsNcs. Chapter 28.

territory nine monthe, shall be eligible to any offi^ in the said terri-
tory; Provided^ however , that persons shall vote in the precincts
where they reside and not elsewhere.

§ 48. Sboritfabt tbansmitb blanks.] The secretary of the territory
shall, at least thirty days before every general election, transmit to the
county clerks of the several connties, blank forms and envelopes for
ajl returns of votes reauired to be made to his office, with such pjrinted
directions on the envelopes as he deems neces^ry for the guidance
and direction of such omcers in making the returns according to law,
and the expense of printing such blanks and envelopes shall be paid
by the territory.

§ 49. Sbokbtart to endorse.] A memorandum of the date of the
reception of all returns of votes at the secretary's office shall be made
at said office on the envelope containing them.

CHAPTER XXVIII.

Revenue.

§ 1. General classes of taxable property.] All property,
wheth^er real or personal, all moneys, credits, investments m bonds,
stocks, joint stock companies, or otherwise, of persons residing in this
territory, the -property of corporations now existing or l^reafter
created, and the property of all banks or banking companies now
existing or hereafter created, and of all bankers, except such property
as is hereinafter expressly exempted, shall be subject to taxation ; and
such property, moneys, credits^ investments in bonds, stocks, joint
stock companies, or otherwise, or the value thereof, shall be entered
on the list of taxable property, for that purpose, in the manner pre-
scribed by this chapter.

EXEMPTIONS.

§ 2. Property exempt from taxation.] The following classes of
roperty shall be exempt from taxation, and may be omitted from the
ist nerein required to be given:

1. The property of the LFnitod States and of this territory, including
school lands.

2. The property of a county, incorporated city or village, or school
district, wnen devoted to public use and not held nor used for pecu-
niary profit.

3. Public grounds, by whomsoever devoted to the public use, and
including all places set apart for the burial of the dead.

4. The engine and implements used for the extinguishing of fires,
with the grounds used exclusively for tlieir buildings and for the meet-
ings of fire companies.

E

Chapter 26. Rbvbnub. 97

5. The grounds »nd bnildiiigs of librftry, scientific, benevolent and
religious institntioiis, or societies devoted solely to the appropriate
objects of these institutions, not exceeding three acres in extent, and

not leased nor otherwise nsed with a view to pecuniary profit. ^,i^t ^ 1"/

6. Tl^ books^ papers^ furniture, scientific or other apparatus per-
taining to the above institutions and used solely for the purpose above
contemplated, and tiie like property of students in any such institutions
used for the purpose of their education.

7. Moneys and credits belonging exclusively to such institutions, and
devoted solely to sustaining them, but not to exceed in amount of total
valttatioai, aside from the property of students, as above mentioned, the
sum prescribed in their cnarter or act of incorj^ration.

8, Ail animals not sp^ioified in the next section of this chapter.

9. Private libraries not exceeding one hundred dollars in value.

10. Family pictures.

11. The household furniture of each family, together with the beds
and bedding thereof, and all wearing apparel of every person and
family actually used for wearing^ not to exceed in valuation two
hundred dollars.

12. AH food and fuel, p^vided in kind, not to exceed provision for
one yearetime; Pf'MiAed^ That no person, from whom a compensation for
board or lodging is received or expected, shall be considered a member
of a family within the intent ana meaning of this chapter.

18. The polls or estates, or both, of nersons who, by reason of age or
infirmity, may, in the jiadgment of the assessor, be unable to contri^
bute to the public charge, such opinion being subject to revision by the
county board of equalization.

14. Any one^fourth part of any quarter section of prairie land, the
same being a legal subdvision, on which five acres of timber shall be
planted, eithef by sowing seed or by setting trees or cuttings, and the
same to be kept in growing order by cultivation, and not to be more
than twelve feet apart each way, together with all improvements
thereon, not to exceed in value one thousand dollars, and tor a period
of ten years from and after the planting of said timber, and any
change df ownership of such land shall in no way effect the exemption
from taxation as herein provided. tVAV\^> ^^\

15. All imjnrovements made on real property by setting out either
forest or fruit tinses, shrubbery or vineyards, which shall not be con-
sidered as increasing the value of the land for purposes of taxation.

16. All pensions from the United States, or from any of the states
of the Union. i * .

^ t, i, TAXABLE PROPERTY.

§ 3. CLAS8:iEfS OP PEOPBBTY SUBJECT TO TAXATION.] All othor property,
real and personal, shall be subjected to taxation in the manner provided
in this chapter.

1. Lands and lots in towns, and villages, and cities, including lands
bought from or donated by tne United States, and from the territory,
and whether bought on credit or otherwise.

2. Ferry ftunchises and toll bridges, which for the purposes of this
act are to be considered as real property.

!KC!

98 Rbvbnuel Chapter 28.

3. Lands which are pledged as security for debt by mortgage or
otherwise at their aetuaJ cash value, without, any regiird .whatever to
the amount of any such mortgage or inoumbvance.

^ Horses and neat cattle, mules and asses, ^sheap and swine.

5. Money, whether in possession or on deposit, and including bank
bills.

6. All credits, whether money, property or labor due from solvent
debtors on contract or in judgment, and whether within this territory
or not. In making the amount of credits which any person is rec^nired
to listfor himself or for any other person, company or corporation, he
shall be entitled to deduct from the gross amount of credits the
amount of all bona fide debts owing by sucn person, company or corpo*
ration, to any other person, company or corppi»tion; Providedy That
nothing in this section shall be so construed as to apply to any bank,
company or corporation exercising banking jpowers or privileges, or to
authorize any deduction allowed by this section from, the value of any
other item of taxation than credits.

7. Mortgages and all other securities, promissory notes and accounte,
whether bearing interest or not.

8. Stocks or shares in any banker company incorporated by this
territory, or any other state or territory, and situated in^ or trans-
acting business in this territory.

9. All public stocks and loans.

10. All household furniture not exempted by the preceding section,
and including gold and silver plate, mu^iical in&itruments, watches and
jewelry.

11. AH private libraries, for their value over one hundred dollars.

12. All pleasure carriages, stage hacks,, omnibuses, and other vehicles
for transporting passengers.

13. 1^11 wagons, carts, drays, sleighs, and every other description of
vehicles, or carriages, and all plows, harrows, reaping and. mowing
machines, harvesters, steam engines, honse powers, grain threshers and '
separators, and all other implements. and machiaery appurtenant to
agricultural laJx>r. . .

14. Boats and vessels of every description, wherever registered or
licensed, and whether nayigating the waters ; of phis territory solely
or not, if owned wholly or m part by persons who are inhabitants of
this territory, for the whole or part so owned by the inhabitant of this
territoiy.

15. Annuities, but not including pensions ih)m the United States or
any other state of the Union. , : .

16. All money or capital invested, ■|)r errfplofed in mifibnuJactorieB,
including buildings, machinery and materiq^ls. . ^

17. All money or capital employed in mercTi'andisin^. ' ^ K ^

18. All property, real and personal, within this terntory, in posses-
sion of, or under the control of, or held for sale by 'a.hy w'arehoiiseman,
agent, factor or representative in smj capacity, of any m^hufacti^ref ,
dealer, or other agent of any such mauuiacturer of or dealer in agri-
cultural implements or machinery, or 6th6r goods, wares, or mer-
chandise. . ' , .

19. Personal property of every description bfelonging to persons or
companies doing freighting or transportation business, 'and belonging

Chapter- 28. Rsyekite. 99

wholly or m part to persons within this territory, for such part as is so
owned by said persons. . •

20. All other property, reaJ and personal, of any kind, including •
improvements on government lajads^ not specially exempted by the
^ p^visions af section two of this cBiapteri eCc.- vvvc * ^^ V

MANNER OF LISTING PROPERTY.

§ 4. BoAED TO PBOViDE NOTIOB6 AN0 FORMS.] On or boforo the twen-
tieth day of January of each year, the board of county commissioners
of each county shall provide for the use of the assessor, suitable
notices and blank forms for the listing and assessment of all property,
and such instructions as shall be needful to secure full and uniform
assessment and returns; and a list of all the entered lands in his
county or district subject to taxation.

§ 5. Classes and kinds of pbopbbty bach person to list.] The list
of taxable property assessed to each person shall contain :

1. His lands by township, ran^, and section, and any division or part
of a section, or numbered fractional lot of any section, lying in the
county in which the list is required. And when such parcel of llbnd is
not a congressional division or subdivision, it shall be listed and de-
scribed in some other mode sufficient to identify it.

2. His town lots, naming the town in which they are situated, and
their proper description by number and block, or otherwise, according
to the system of numbering in the town.

3. His right and title in any ferry franchise, toll bridge, or part there-
of, by the total and actual cash value of the same.

4. Amount of capital employed in merchandising or manufacturing,
including all buildings, machinery, and appurtenances thereto.

5. Number of horses.

6. Number of mules and asses.

7. Number of neat cattle, over one year of age.

8. Number of sheep over three months old.

9. Number of swine over three months old.

10. Number of carriages and vehicles of every description.

11. Amount of money and credits, including actual and total cash
value of all such credits, notes, and accounts aue.

12. Amount of taxable household furniture. •

13. Amount of stock or shares in any incorporated company, or
company not incorporated.

14. Amount of all property, machinery, or merchandise held and
controlled as agent of any manufacturing company or agent thereof.

15. All real property Sold by any party or corporation under any
form of grant or conveyance, or contract therefor, of which the ven-
der had or has an inchoate contingent or equitable title, riffht, or claim,
and which is in the natne, possession, or use of any vendee who has
voluntarily taken sUch grsLnt or contracts for such title, right, or claim;
Provided, That nothing herein shaill be coiistrued so as to affect or
impair any right of a person holding or claiming lands from the
United States under the homestead or pre-emption laws.

16. All other property not specially enumerated jn this section, by its
actual cash value, except such as is specially exempted by section two
of this chapter.

100 Reventt*. Chapter 28.

§ 6. BoABD MAT sxTBN D LIST.] The abov6 list of items may be
extended, at the discretion of the board of county <»mmissioneTS, so as
to obtain such facts as they may deem desirable.
tkAv'i'i^^^^ § 7. AssBSSMBNT TO BBGhtN.] The assessor shall in no case commence

assessing before /iieJBa^ MAnday mfre^flrtiaty of each yeai'. tSU.;^» di. «\1 9

Ai.59oL.M^ §8. All taxable PROPBETY LXSTBD — ASSBSSOR's power — REFUSAi..!

All taxable property, real and personal, shall be listed and assessed
each year in the name of j^^ owner thereof, as soon as practicable on
^,11^ 1 <^ I or after the first Monday mTebruary, at its jB£|^al . caish talue, at the
place of listing on the first dii.y nf n^fthr^jaiy^ri^.liMiiTig all property
purchased on that day. And in order to tnake the assessment^ sucn
assessor shall demand from each i)er9on and firm, and ft*om the presi^
dent, cashier, treasurer, or managing agent of each corporation, asso-
ciation, or company within his conntv, a statement, under oath or
affirmation, of all the real estate within the county, and personal
property, owned by, claimed, or in the use, possession, or t control of
such person, firm, corporation, association, or company. If any person,
firm, officer, or agent shall neglect or refuse^ on demand of the assessor,
to givrf, under oath or affirtnauon, the statement required by this sec-
tion, the assessor shall ascertain and estimate, from the best informa-
tion he can obtain, the number, amount, and cash value of all the
several species of property required, and shall list the same accord-
ingly, and the value so fixed by the assessor shall not be reduced by
the county board of equalization.

§ 9. Unbitown ownerb— oath to ltst.] If the owueV of any property
not listed by another i)erson shall be absent or unknown, the assessor
shall ascertain and estimate the value thereof, and if the name of such
owner be known to the assessor, the property shall be assessed in his,
her, or their name; if unknown to the assessor, the property shall be
assessed to " unknown owners." The list shall be signed and sworn to
by the person making it, and the oath thereto may be administered by
the assessor, or his deputy, or by any other officer authorized to admin-
ister oaths, and shall be certified by him, and the oath may be printed
upon the blank form, and shall be in substance as follows: '

I, A B, do solemnly swear (or affirm) that I have listed above and within all the lands, town and
city lots, personal property, money and credits, aobject by law to taxation, and owned, used,
possessed or controlled b}' me^ or by law required to be listed by me for any other peraon or per-
sons, as guardian, husband, parent, trustee, executor, administrator, receiver, accounting officer,
partner, factor, bailee, or agent, according to the best of my knowledge.

§ 10. Assessor may bsquihe oath op owner, or other person-
penalty.] in case any person, required to render the list under oath,
fails or refuses to do so. the assessor. In order to perform his duty, as
required in section eight of this chapter, may examine on oath any
person whom he supposes to have knowledge in relation to the property
required to be listed; and if any such person refuse to testify, when so
required^ he shall forfeit the sum of five dollars, to be recovered in a
civil action in the name and to the use of the proper county; and the
assessor shall make a minute of the names of persons refusing to swear
to such list, or to testify in relation to property, and shall note the
same on the lisi^ and return the same to the, board of county commis-
sioners, and the county board of equalization shall add fifty per cent,
thereof to the amount in value of property returned by the assessor
as the list of the person so refusing to swear or affirm.

Chapter 28. Revbndx. 101

. I IL List op ssFudALS^ 0*0 sweab.] The said statements of persons
rerosing to swea^, shall be endorsed wit^ the name of the person whos^
property is therein listed,. and the assessors shall file them in alpha-
hetiear order, and retgrn them to the office of the county clerk by the
first Monday of MaVnext ensuing, at which time, or before, he sWl
also prepare and deliver his assessment rolL All property is to* i^e
valueo by the asaessor, except such as is herein reauired to be valued
by the owner, agent, or other person having control of the same^eV'-^^'i^' \^>

§12. Assessor's oath to boll.J The assessor shall take and-^ub-
scribe an oath, to be certified by the officer administering it^vand
attached to the assessment . roll, which oath is to be in substapto as
follows: .•

I, A B, county or township assessor in and for the county, Dakota Temtofy, do

Bolemnly swear Uiat the value of all property, moneys and credits, of which a statement has
been made and verified by the oatth of Uie person required to list the same, is hereby truly
returned, as set forth in such statement ; that in every case where I have been re(}uired to
ascertain the amount of value of the property of any person or body corporate, I have diligently,
and by the best means in my poww, endeavored to ascertain the true amount and value, and
that, as I verily believe, the full value therefor is set forth in the above returns. And that in no
case have I knowingly omitted to demand of any person, of whom I was required to jnake it,
a statement of the amount and value of his property which he was required by law to list, nor
have I connived at any violation or evasion of any of the requirements of the law in relation
to the assessments of property for taxation.

\ § 13. Sworn falsb list* -^perjury.] If any person shall willfully
"^^ make or give under oath or affirmation, a false list of his, her or their
^ taxable property, or a false list of the taxable property in the use or
V possession, or under the control of him, her or tnem, and required by
^>law to be listed by him, her or them, such person shall be deemed
N guilty of perjuty; and, upon oonvictidn thereof, shall be punished
^ij^ therefor as is by law provided for the punishment of periury.
^^ § 14. Crebits defined.] The term "credite," as usea in this act,
J. VV includes every claim and demand for money, labor, or other valuable
\ \ V tiling. And every annuity or sum of money receivable at stated
I ^t" periods, and all moneys in property of any kind, and secured by deed,
\ Vy mortgage or otherwise; but pensions from the United States, or any \
\ ^9 state, are not included in the above terms.
I .

BY WHOM AND WHERE LISTED.

§ 15. Every inhabitant, unless bzoeptbd, to list.] Every inhabi-
tant of this territory, of fuU age and sound mind, unless excepted by
the provisions of thisi act, shall list all property subject to taxation in
this territory, of which he is the owner, or has the control or manage-
ment, in the manner herein directed; but the property of a ward is to
be listed by his guardian; of a minor, having no other guardian, by
his father, if living; if not, then by his mother, if living; if not, then
by the person having the property in charge; of a married woma^, by
her husband, but if he be unable, or refuse, then by herself; of a benefi-
ciary for whom property is. held in trust, by the trustee; and the per-
sooaal property 01 a decedent, by the executor, administrator or heirs;
of a body corporate, company, society or partnership, by the principal
accounting omcer. agent or partner; property under mortgage or lease,
to be listea by and taxed to the mortgagor or lessor, unless it be listed
by the mortgagee or lessee.

♦ • •

v.: '102 RfiVENtm. Chapter 28,

'..••'§16. Commission MEBCHANts, &o.| Oommis&ion merchants, and all

•persons trading or dealing on commission, and cobisi^e^s authorized

.to.sell, when the owner of the goods does not reside m this territory,

•.at6^ for the purpose of taxation, required to list all the property in

'their possession.

f^K.^^^A\'^^,^i■^. Property listed, assessed and taxed —when— where.] All

personal property is to be listed, assessed andtaxed in the county

wBere the owAer resides, on the first of Februaiy^f the then current

yeatr,* br where the property is kept. But if the owner resides out of

the ICSrritory, it is be to listed and taxed where it may be at the time of

listingi\ And if the agent or person having charge of such property

neelecjbs to list it, he will be subject to the penalty hereinafter pro-

§ 18. List in behalf op another.] A person required to list
property in behalf of another, shall list in the same* county or town-
ship in which he would be required to list if it were his own, except
as herein otherwise directed. But he must list it separate from his
own, naming the person to whom it belongs. But the undivided
property of a person deceased, belonging to his heirs, may be listed as
belonging to such heirs without enumerating them.

§ 19. How COMPANIES TO LIST PROPERTY AND MONEY — DUTY OF AUDITOR

AND ooMMTssiONER.] The president, secretary, superintendent, or other
principal accounting oflBcer within the territory at the time of the
assessment, of every railroad company, turnpike company, plank road
company, bridge or ferry company, insurance company, telegraph
company, or any other joint stocK company, except banking or other
corporations whose taxation as specifically provided for in this chap-
ter, for whatever purpose they may have been created, whether incor-
porated by any law of this territory or not, where any portion of said
property, at the time of the assessment, is situated in more than one
county, shall list for taxation, verified by the oath or affirmation by
the person so listing, all the personal property, which shall be held to
include road bed, depots, wooa and water stations^ poles and wire> bridge
and boats, books, papers, office furniture and fixtures, and such other
realty as is necessary for the daily business operations of said voad,
bridge, insurance, or other incorporation* Moneys and credits of such
company or corporations within the territory, at the actual value in
money, in manner following, to wit: In all cases, except as hereinafter
provided, a full return of all property shall be made to the auditor of
the territory, on or before the nrst Monday of February, annually,
together with a statement of the amount of such property which is
situated in each organized county, precinct or township, incorporated
village or city therein. The value of all movable property snail be
' added to the stationary and fixed property; Provided, That whenever
the whole of the property of any company aforesaid, shall be in one
county only, the return shall be made to the assessor, or assessors, in
the same manner as returns of other property are made. If the return,
aforesaid, shall not be received by said auditor within ten days after
the first Monday in February, aforesaid, it shall be the duty of the
auditor to procure the information, aforesaid, in any manner tnaA may
appear to be most likely to secure the same correctly, and for that put-

Chapter 38. Rbvbnue. 103

pose shall address a written iieqaest to the officer who has omitted or
neglected 4o nmhe the retam. foresaid; and it shall be the duty of the
auditor, on or before the first Monday of April, or so soon thereafter as
he shall have poroenrcd ' the (necessary information, ^to certify to the
county clerks of ttie seVeral ooHnt^es in which said property, or any
part thereof, shall be situated, the amounts thereof, specifying the sev-
eral amounts included in each organized county or township, incor-
porated city or village in said county, which amounts, when so received
oy the several county clerks, shall be placed on the list of taxable
property returned to them by the several assessors for such county or
townships, incorporated i cities or villages. The auditor shall certify
whether the return was made by the proper officer, or whether the
valuation was procured by himself; and it shall be the duty of the
county commissioners toeqimliaethe valuation of such property in the
same manner as of other property, and if the return has not been
niade by the proper officer ax the proper time, as required by this act,
it shall be the duty of said county commissioners to add, not exceeding
fifty per cent., to the valuation thus before them; Provided, T,hat shares
of stock in all national banks, held by any person or persons in the
territory, shall be assessed at their par value, and the owner or owners
thereof shall be required to pay tax thereon the same as though they
were shares in banks chartered and incorporated by the laws of the
territory, or by the laws of any other state or territory of the United
States; And provided^ further ^ That for the purpose of taxation no
discrimination shall be made between any national bank and any other
'bai)k jdoiii^ business in this territory under the laws thereof.

§ 20. Pbbsons boino business in more than one county.] When a
person is doing business in more than one county, the property and
credite existing in any one of the counties are to be listed and taxed
in that county; and credits not existing in, nor pertaining especially
to, the business in any one county, are to be listed and taxed in that
county where his principal place of business may be; each individual
of a partnership is liable for the> taxes due from the firm.

§ 21. Insurakge companies.] Insurance companies, of every descrip-
tion, transacting business in this territory, shall be taxed in the same
amount and at the same rate that all other property is taxed, upon
the amount premiums taken by them during tne year previous to the
listing in the county where the agent conducts the business. And the
£^ent shall render the list, and shall be personally liable for the tax, and
ifhe refuses to render the list, or to ewgar as herein required, the amount
may be assessed aceordinc to the best knowledge and discretion of the
assessor, and the county board of equalization may, at their discretion,
add fifty per cent, to *he anlo«ftit returned by the assessor.

§ 22. Deprboiatbd bank notes] Depreciated bank notes and
defMreciated stocks, or shares in corporations or companies, may be
listed at their current value and rate ; credits shall be listed at such
sums as the person listing them believes will be received, or can be
coUeeted, and annuities at the- value which the person listing believes
them to be worth in money.

§ 23. EsrTnLEn to nBDUOT bona yinB debts only.] In making up
the amounts of credits which any person is required to list, he wiU be

SB

104 Rbvsnue. Chapter 28.

entitled to deduct from the ^ross amount the amount of bond^ffidedebte
owinff by him, but no acknowledgement, nmde forthepurposieof bding
so deducted, shall be considered a debt within the intent of this sec-
tion, and so much only of any liability of such person as security jfor
another shall be deducted as the person making the list believes he is
legally or equitably bound to pay, and so much only as he believes he
wfll be compelled to pay on account of the inability of the principal
debtor. And if there are other sureties able to contribute, then so
much only shall be deducted as he, in whose behalf the list is made,
will be bound to pay or contribute; but no person will be entitled to a
deduction on account of an obligation of any kind given to an
insurance company for the premium of insurance; nor on account of
ah unpaid subscription to any society^ nor on account of a subscription
to or installments payable on the cajntal stock of any company or cor-
poration, nor upon any account whatever, unless such deduction be
made from the amount of moneys or credits, or both, by such person
listed.

§ 24. Definition of mebohant.] Any person owning or having in
his possession or control in this territory, with authority to sell the
same, any personal property, purchased either within or out of the
territory, with a view of selling the same, at in advance price or profit,
or which has been consigned to him for the purpose of being sold
within the territory, shall be held to be a merchant for the purposes of
this act; such property shall be listed for taxation, and in estimating
the value thereof, the merchant shall take the value of such property
in his possession or control on the first day of Februarv5\kiAA>^tli^ a\^^ ,<^ \

§ 25. Held as manufacturer- -when.] Any person who purchases,
receives or holds personal property of any description for the pur{)08e
of adding value thereto by any process of manufacturings refining,
purifying, or by the combination of different materials, with a view of
making gain or profit by so doing, and by selling the same^ shall be «
held to be a manufacturer for the purposes of this act, and he shall list
for taxation the value of such property in his hands, e^imated as
directed in the previous section in case of merchants, but the value
shall be estimated upon the materials only entering into the combi-
nation or manufacture.

4

I
■ ■ ' '

OF A8ISEBSMBNT ROLL.

§ 26. Marino and mjli veiol of roll — oontbhts— formJ . . Oa or
before the first Monday of Alii^^^nuaUy, the several county assessors
shall make out and deliver to tne county clerk an assessment roll, eon-
sistinff of the following items, to wit: t3k.u% ^.ly^^i

1. A list of all the taxable lands in such county in numerical .oi*der,
beginning with the lowest numbered section, in the lowest numbered
township, in the lowest numbered range in the county^ aind ending in
the highest numbered section, township, and range, with the numoer
of acres in each tract set opposite the same in a column^ provided for
that purpose, and the assessed value thereof in another column, and
the name of the owner, or person listing the samey in another colnmn,
with the columns of acres and values footed up. Also statiuog tiie

Chapter 28.

BXYSNUB.

105

number of the school and road district in which such property and the
owner thereof is situated. Such list shall be as nearly as practicable
iB ttie following form:

RETURN OF TAXABLE LANDS IN COUNTY, DAKOTA, AS ASSESSED FOR

THE TEAR 18. ..

Put of Baetlon.

Section.

Township.

Range.

Aeree.

Valne.

Owners' Name.

•

2. A list of all the town lots in. each town or city in each county, in
like numerical order, with the valuation of each lot or part of lot, and
the name of the person listing the same, opposite, with the column of
values footed up, substantially in the following form:

RETURN OF LOTS IN THE CITY (OR TOWN) OP , IN

ASSESSED FOR THE YEAR 18.*.

COUNTY, DAKOTA,

Block.

Lot.

Value.

Owner.

1

■

f

* 1

■

3. A list in alphabetical order of all the persons and bodies corporate
in whose names any property, or anything taxable other than the real
estate, has been listed, with a sufficient number of columns opposite
each name in Which' to enter the numbers or values, or both, of the
several species of property, or other interests required by law to be
listed, with the columns of numbers and values footed up. Such list
shall be as nearly as practicable in the following form, to wit:

f

•I

106

Rbvenub.

Chapter 28.

BBTDBN OF FBS80NA1/ FBQ^BRVT IN i . QO\SVrts aiKOTA,' ABfiBBBBD FOB tHB

YEAB 18.. .

NAMBS.

Off

Mat

•a

s

o

lUl

O

V

u

4S

p
a

S

00

9
Ob
k

o

a

CD

(0

<}

a

as
■

0

.«

48

?

«

08

30

^

OS

O

l5

^

t

•a

s

o

0

o
.a
«

0

o

ffl

xz«

OB

ua

GO

-a

o

e

o

o

s

H

o
cu

Rk

REFUSAL TO LIST.

§ 27. Return of refusals to swear.] In every case where a person
is required to list property for himself, or in behalf of another, if he
shall neglect or refuse to list the same, the assessor shall proceed as
directed in section ten of this chapter, and in the return of personal
property, opposite the name of such person, he shall write the words
*'by the assessor," when the list was made by himself, or his deputy,
together with the words "absent," or "sick," or "refused to.swear," or
such other words as will exj^ress th© cause why the person required to
make the list did not make it; and a neglect to make it shall oe taken
as a refusal to do so.

county board of equalization.

§ 28. Commissioners constitute board — powers — limitation.] The
board of county commissioners of each county shall constitute a board
of equalization for the county, and said board, or a majority of the
members thereof, shall hold a session of not less than^two days at the
county seat, commencing on the first Itfonday of Maj^^ ©S'Ch year, for
the purpose of equalizing and correcting the assessment roll in their
county; and in order to equalize and correct such assessment roll, they
may change the valuation and assessment of any property, real or per-
sonal, upon the roll, by increasing or diminishing the assessed valuation
thereof as shall be reasonable and just, to render taxation uniform;

Chapter 28. Rbvenub. 107

Provided^ That the aggregate assessment shall not be materially
chaBTOd thereby. OL -v vn ^ •« <i ^ \ *>

§ 29. Further powers bqualizino board.] The said board of equal-
ization must also place upon and add to the assessment roll any prop-
erty, real or personal, subject to taxation, which has been omitted
thereirom by the owner, or by the assessor, and enter for the same a
reasonable, just and uniform taxation. During the session of said
board, any person, or his attorney, or agent, feeling aggrieved by any-
thing in the assessnient roll, may apply to the board for the correction
of any sieged errors in the listing or valuation of his property, whether
real or personal, and the board may correct the same as shall be just;
and if any person returned as refusing to render a list, or to be sworn
thereto, or to the list of the property of another returnable by him, can
show good cause for such failure or refusal, the penalty herein provided
may be remittea; Provided, That in equalizing the assessment of all
property, personal and real, said bo^^rd must b^governed by the value
of such property on the first day of Eehruai^'j^eceding, or, if that
cannot be reasonably and justly ascertained, by its average value
during the year preceding. dU- ^\% ^' Hi^v

§ 30. Clerk of board.] The county clerk of the county shall be
the clerk of said board of equalization for the county.

ABSTRACT OP ASSESSMENT ROLL.

§ 31. Clerk makes and forwards abstract to auditor.] As soon
as practicable after the assessment rolls are equalized and corrected,
as provided in the two preceding sections, and before the third Monday
of Mft3?*[nfext ensuing, the county clerk shall make out an abstract
thereof, containing the whole number of acres of land listed in the
county, and the total value thereof. tJL*.. vi<8 «aL*iA|\\

The total valuation of town lots. *

The amount of property invested in merchandise.

The amount of property invested in manufactures.

The number of norses, and their total value.

The number of mules and asses, and their total value.

The number of cattle, and their total viilue.

The number of sheep, and their total value.

The number of swine, and their total value.

The number of carriages and vehicles of every kind, and their total
value.

The total value of money and credits.

The total value of household furniture.

The total value of stock or shared.

The total value of all other personalty not enumerated under the
forogding heacld,^ and the number of polls.

Wnich abstrkct the clerk, is diretited to transmit, without delay, to
the auditor of the territory, and the county commissioners are author-
ized to direct th6 clerk to add to the above list of items such other
items as they may deem advisable; and it shall be the duty of the
auditor of the territory to furnish such fbrms for the use of the county
commissioner^, assessors, clerks, aAd other ofBceirs of the revenue, as
shall ^cure Uniformity of proceedings and returns throughout the
territory.

108 RBVBNin. Chapter 28.

TERRITORIAL BOARD OF EQUALIZATION.

§ 32. Who -constitute — meeting — dutie^.1 Thfe governor, terri-
torial auditor and treasurer (or the majority of them), shall constitute
the territorial "board of equalization," and said board of equalization
shairhold a session at^he capital of the territory, commencing on the
second Monday of JnnfiTff each year, and it shall be the duty of said
board to examine the various county assessments, and to decide upon
the rate of the territorial tax, to be levied for the current year,
together with any other general or special territorial taxes required
by law to be levied, and to ecjualize the levy of such taxes throughout
the territory; but such equalization shall be made by varying the rate
of taxation on the diflFerent counties, in case the said board of equali-
zation are satisfied that the scale of valuation has not been adjusted
with reasonable uniformity by the different assessors.c\.vi^dL.i^%V

rati; qf taxation and levy op same.

§ 33. Territorial,' county and special taxes limited.] The rate
of the general territorial tax ehall,4,nx)t ,.bp less than one-half mill, nor
more than five mills on the dollar valuation; for ordinaij county
revenue, including the support of the poor, not more than tour miUs
on the dollar; for roads ana bridges, a poll tax of one dollar and a half,
or one day's work, on every male person between the ages of twenty-
one and fifty years; a bridge tax not to exceed two mills on the dollar;
and a road tax not exceedmg two mills on the dollar valuation, to be

Said in money or in labor at the rate of one dollar and fifty cents per
ay, at the option of the person so taxed, and the certificate that the
person named therein has actually performed eight hours labor for
each day's work so certified, shall be received by tne county treasurer
in discharge of said tax to the amount so certified. For county sink- .
ing fund, such rate as in the estimation of the board of county com-
missioners, will pay one year's interest on all the outstanding debt on
the county, with fifteen per cent, on the principal.

§ 34. Auditor TRANSMi'^gRATB of territorial tax.] On or before
the third Monday in J»»e][in each year, the territorial auditor is •
required to transmit to the county clerk of each county, a statement
of the rate of taxation reauired in said county for the general terri-
toiial tax, as directed to oe levied and collected by the territorial
board of equalization. Should the territorial board of equalization
fail to fix the rate of taxation, in any or all of the counties, then the
auditor is required to notify tne county clerk of the rate to. be levied
and collected in such county or counties, which must not exceed two
mills on the dollar of valuation and must be in even mills, or in mills
and tenths of mills, and uniform for all the counties, tVx A v%dLxfl^^^^^.
§ 35. County tax, when levibd.] On the first Monday in iily^oSf
each year, the board of county commissioners must meet at the county
seat to levy the necessary taxes for the current fiscal y^r, and t^jey
may levy the taxes at any time after the said, first Mpn^^ of Ii»\j^
the statement from the territorial board of equalization has not then
been received; but such levy naust not be postoone4 for moret than tM
days, and they shall levy the taxes as herein directed, U^*4^^«^' *\ *t ^

Chapter 28. Rbventtb. 109

§ 36. Territorial tax three mills, when.] The rate of the general
territorial tax shall be as directed by the territorial board of equaliza-
tion, or by the territorial auditor, but in case the statement of the
levy of such taxes, as hereinbefore directed, has not been received by
the county clerk within ten days after the said first Monday in JLulj; .^^V* .
then tie said boaifd of county commissioners shall levy the general
territorial tax at the rate of three mills on the dollar of valuation/v^ x .^ h» »*. ^^\

§ 37. Clerk mXkbs list — contents — order.] As soon as practicable
after the taxes are levied, the county clerk shall make out a tax list
containing:

1. A list in alphabetical order of all the persons and bodies corpo-
rate in whose name any property cither than real estate has been listed,
with the amount or valuation thereof in a seperate column opposite
the name, and total amount of all the taxes carried out in another
column.

2. A list of all the taxable lands in the county (not including town
lots) in numerical order, commencing with the lowest numbered sec-
tion, in the lowest numbered township, in the lowest numbered range
in the county, and ending with the hignest numbered section, township,
and range, with the names of the persons or parties in whose name
each subdivision was listed opposite each subaivision on the margin,
or in a column provided for that puipose, with valuation of each tract,
and several species of taxes and the total of all the taxes carried out in
seperate columns opposite each tract, in the same manner as provided
in the alphabetical list of names.

3. A list of the city or town lots in each city or town in the county,
commencing with the lowest number and ending with the highest num-
ber in each city or town, with the name of the person or party listing
each lot, or part of lot, opposite the same, and the valuation and sev-
eral species of taxes and total taxes carried out in seperate columns,
in the same manner as hereinbefore provided in respect to personal
property and lands.

§ 38. Duplicate list for treasurer.] The tax list, when completed,
shall be kept by the county clerk as the property of the county. The
clerk shall also prepare a duplicate of the tax list of his county, and
deliverthe same to the county treasurer on or before the first day of
Oetobm^ollowing the date of the levy for the current year.cJiic.vv%A-' i\<^v

§ 39. Form op list and duplicate.] The tax list and duplicate
shall be as nearly as practicable in the following form, to wit:

no

Rkvbnub.

Chapter 28.

•

TAX LIST

FOR

.18.

, ., .

• • •

• « ■ «

■ • • f

.OOUNTT, 1

OAKOTA

•

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1

1

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2

naMbs.

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.

•

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ri
^

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a

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BBMARKS.

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§ 40. Entry rbquieed on ust and duplicate.] An entry is required
to be made upon the tax list and its duplicate, snowing what it is, and
for what county and year it is, and the county commissioners shall
attach to the lists their warrants, under their hand and official seal, in
general terms, requiring the treasurer to collect the taxes therein
levied according to law; and no informality in the foregoing require-
ments shall render any proceedings for the collection of taxes illegal;
the county clerk shall take the receipt of the county treasurer, on
delivering to him the duplicate tax list, with the warrant of the county
commissioners attached^ and such list shall be full and sufficient
authority for the collection by the treasurer of all taxes therein
cgntaiped. ^ ' "*«^

"^•i^lfco-^^*

COUNTY TREASURER, AND HIS DUTIES.

County treasurer collector of taxes.] The county treas-
urer of each county shall attend at the county seat at all times, to
receive the taxes not yet paid, and he is also authorized and required
to collect, so far as practicable, the taxes remaining unpaid on the list
of the former year, or years. In all cases where taxes are paid, he
shall give a receipt to the person paying the same.

§ 42. Warrants receivable to fund drawn on.] Territorial war-
rants are receivable for the amount payable into the territorial
treasury, on account of the general territorial tax, and county warrants
are receivable at the treasury of the proper county for the amount of
county tax payable into the county treasury, except when otherwise
provided bylaw; and city warrants shall be received for city taxes,
and school warrants shall be received for school taxes in the districts

Chapter 28.

Rbvbnub.

HI

>

where such warrants are issued; but United States treasury notes, or
their equivalent, only are receivable for such taxes as are or may be
required by law to be paid in cash ; and road and poll taxes may be
discharged, as provided in section thirty-three.

§ 43. Tssasubbb's bsckipts qufi^ioates.] Whenever any taxes are
paid to the county treasurer, the treasurer shall make out duplicate
receipts for the same, which duplicate receipts shall correspond in
number, date, amount^ and in every respect shall be precise copies of
each other, one of which shall be delivered to the person pajing such
taxes, and the other shall, within one month, be filed by tiie treasurer
with the county clerk, and such duplicate receipts shall specify the
land or other property on which such tax was assessed according to its
description on the tax duplicate, or in some su£Bicient manner, and
shall also specify the amount of each separate and distinct fund, in
separate or distinct lines or columns, and whether the said separate or
distinct funds were paid in cash or in territorial warrants, county, or
road order, or supervisors' receipts, as the case may be.

§ 44. Form of rsceipt.] The tax receipt and duplicate shall be
substantially in the following form, to wit:

No.

Received of , ,

on annexed property or real estate.

Treasurer's Office, County, Dakota,

.•'.•••.•..■...•.••••.■•■, lo ...

.dollars, in full of the following taxes for the year, Id* .,

?ut of Section or

Section
or Lot.

Town or
Blodk.

Range

Acres or
Block.

XIKD OV TAY.

AXOVHT or TAXB8.

ToUl.

HuBe atV^wn*

Cask.

Paid in
Warrants

Interest.

1

«

0

Territorial.

County.

Road.

^

•

1

Poll.
Seliool.

••

• i

1'. .

•

AdTeitUing.

• •

*§ 45. Clerk audits dupligatk..] It shall be the duty of the county
clerk, on receiving any duplicate tax receipt from the treasurer forth-
with to examine the same and compare it with the tax list in his pos-
session, and see 4f the total amount of taxes and the several amounts
of the different funds are correctly entered and set forth in such
receipt; and in case it shall appear that the treasurer has not collected
the full amount of taxes and interest, which according to the tax list
and the terms of the receipt he should have collected, then thecountv
clerk shall forthwith charge the treasurer with the amount such
receipt falls short of the true amount, and the treasurer shall be
liable on his official bond to account for and pay over the same.

§ 46. Rbobipts numbered oonsecutively.J All tax receipts issued
by the county treasurer, shall be numbered consecutively, commenc-

/

112

RBVBNtJlfi.

Chapter 2R.

ing with number ^ne on the first receipt idsued for the taxes of any
one year, and he shall not receit)t for more than one year's tastes on
the same propeity in one tax receipt, but shall keep a separate and dis-
tinct series of numbers of receipts issued for the tax^s of eadi year
for which the same have bebn levied and asBessed in this1»rritory.

§ 47. What ntSASutasR sttALL writb on BUPLicAto.] Whenever any
taxes are paid, the treasurer shall write on the tax duplicate, opposite
the description of the real estate or property whereon the same were
levied, the word *' paid,^' together witn the date of such payment
and the name of the person paying the same; and the county derk
on receiving the duplicate receipt shall forthwith make the same
entries on the tax list in his possession.

§ 48. TBEAStTRUB TO KBWP A CASH BOOK.] The couuty treasurer is
required to keep a cash book^ in which he shall enter an account of
all money by iiim received, specifiying in proper columns, provided
for that purpose, the date of the payment, the number of the receipt
issued therefor, by whom paid, and on account of what fund or
funds the sam«e was paid; whether tetritorial, county, sehool, road,
sinking fund, or otherwise, and the amount paid in Warrants, orders,
or receipts, each in a separate column; and the total amount for which
the receipt was given in another column, and the treasurer shall keep
his account of money received for and on account of taxes, separate
and distinct from moneys received on any other account, and shall also
keep his account of money received for and on account of taxes levied
and assessed for any one year, separate and distinct from those levied
and assessed for any other year, and all entries in said cash book of
money received for taxes, shall be in the numerical order of the
receipts issued theiiefor.

§ 49. Miscellaneous duplicate receipts.] Whene^ver the treasurer
receives money, warrants or orders on account of licenses, fines or anj^
other account, except taxes, he shall make out duplicate receipts for
the same, and deliver one to the person making such payment, and
the other to the county clerk, as provided in the case of tax receipts,
and shall forthwith enter the same in his cash book as in case of money
received for taxes, but in a separate place, and with a separate and
distinct series of numbers of receipts issued therefor. cX*»\i oLtV^^^

§ 50. Form of cash book.] The cash book above provided for shall
be as nearly as practicable in the following form, to wit:

TRBASXTRXK'S CASH BOOK, COUKTT, DAKOTA.

■r ■ — ■ ■ • ' * ^T

li

o

g

p

1
I

TerrltorialFoBd Couity Puid. bCo.'SinkliigF'a.

jco/SI

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I

B,'^

&

T

Land Xoad F'd.

t

2

t

-a

;2

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t
1

Poll Piiaid.

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p

£

I t '

t •

Chapter 28. RbvbntjU. 113

§ 51. Clerk's duplicate of treasur^br s cash book.] The county
clerk is required to keep a duplicate of the treasurer's cash book, and
to enter therein all duplicate receipts by hira received from the treas-
urer, in the same manner and form as the treasurer is required to
enter the same.

§ 52. Errors and omissions.] If on the assessment roll or tax list
there be any error in the name of the person assessed or taxed, the
name may be changed, and the tax collected from the person intended,
if he be taxable and can be identified by the assessor or treasurer;
and when the treasurer, after the tax list is committed to him, shall
ascertain that any land or other property is omitted, he shall report
the fact to the county clerk, who, upon being satisfied thereof, shall
enter the same upon his assessment roll, and assess the value, and the
treasurer shall enter it upon the tax list, and collect the tax as in
other cases.

§ 53. Demand for taxes not neoessary.I No demand of taxes
shall be necessary, but it shall be the duty oi every person subject to
taxation under this law to attend at the treasurers office at the county
seat, and pay his taxes; and if any person neelect so to attend and pay his
taxes until after the first day of NovombermSlltt succeeding the levying 01-^^^ • ^*
of the taxes, the treasurer is directed and required to collect the same
by distress and sale; Provided^ That in case any person having only
personal property assessed, and upon which the taxes are unpaid, shall,
in the opinion of the treasurer, be about to move out of the county, it
sh ill be the duty of the treasurer to collect such taxes at any time
after the tax duplicate has been placed in his hands. <SL.\v4 ^ ^-^^v

DELINQUENCY, PENALTY AND LIEN OF TAXES.

§ 54. Taxes delinquent — when.] On the first Monday of January^^?^. V^
of the year after which taxes shall have been assessed, all unpaid
taxes shall become delinquent, and shall draw interest at the rate of
ten per cent, per annnm from the date of such delinquency,

§ 55. Ten per cent, penalty,] To all taxes which remained
unpaid at the time the same became delinquent, there shall be added
as a penalty, ten per cent, on the amount so remaining unpaid, which
shall be added to the amount assessed, and collected by the county
treasurer. tX^.^S ot - ^ 1 9

§ 56. Lien or taxes defined.] Taxes upon real property are
hereby made a perpetual lien thereupon against all persons and bodies
corporate, except the United States and the territory, and taxes due
from any person upon personal property shall be a lien upon any real
property owned by such person, or to which he . may acquire a title.
All taxes shall, as between vendor and nurch^ggr, become a lien upon
real estate on and after the first day of Ootobop,^n each year. tV.vv^^.\^\

collection by distress.

§ 57. Distrained goods at expense op the owner.] When the
treasurer distrains personal property, he may keep it at the expense of
the owner, and he shall give notice of the time of the sale within five
days after the day of the taking, in the manner that constables are
required to give notice of' the time of the sale of personal property on

^

114 Revenue. Chapter 33,

execution- and the time of the sale shall not be more than ten days
from the day of the taking, but he mav adjourn the sale from time to
time for a period not to exceed three days, and shall adjourn once at
least when there are no bidders; and in case of an adjournment, he
shall put up a notice thereof at the place of sale. Any surplus remain-
ing above the taxes, charges for keeping, fees for sale, fees for levying
on the property, and mileage, to be the same as allowed by law to
s^ieriflfs for levying and execution on personal property, shall be
returned to the owner, and the treasurer shall, on demand, render an
account in writing of the sale and charges.

§ 58. In case treasurer be resisted in execution op duty.]
If the treasurer be resisted or impeded in the execution of his office,
he may require any suitable person or persons to aid him therein, and
if any such person refuse to aid, he shall forfeit a sum not exceeding^
ten dollars, to be recovered by civil action in the name and for the use
of the county, and the person or persons resisting shall be liable, as in
N the case of resisting the sheriff in the execution of civil process.

§ 59. Taxes receivable till otherwise collected.] The treasurer
shall continue to receive payment of all taxes after the first day of
No vftTY] bfi yt^ p^" the above ^rms, until collected by distress and sale.

tax sale.

% 60. Treasurer adds local taxes.] Whenever, in the collection
of any district, town, city or local tax, which may have been levied
according to law, the collector is not able to make the tax by distress
and sale of person jil property, and real estate is to be sold fqr the same,
it shall be tne duty of the collector of the tax to send such delinquent
list to the county treasurer on or before the fifteenth day of July of
each year, and the county treasurer shall receive the delinquent list,
and advertise the same at the same time he advertises the sale of real
estate for delinquent taxes, as hereinafter provided, by adding the
amount of such delinquent district, town, city or local tax, to the
amount of delinquent territorial, county and otner taxes, and shall sell
such lands for the purpose of paying all such delinquent taxes as here-
inafter directed, and shall credit the proper district, town, city, or
locality for the amount of taxes so collected, which shall be subject to
the order of the proper collecting officer.
^^9^ V -|cj § 61. Treasurer's notice of sale.] Thei treasurer shalKgive notice
'^ of the sale of real property, by publication thereof once a week for
three consecutive weeks, commencing the first week in August pre-
ceding the sale, in a newspaper in his county, if there be one, and if
there be no paper published in his county, shall give notice by a
written or printed notice posted on the door of the court house, or
building in which courts are commonly held, or the usual place of
meeting of the countyxommissioners, for three weeks previous to the
sale; such notice shall contain a notification that all lands, on which
the taxes of the preceding year (naming it) remain unpaid, will be
sold, and the time and place of the sale, and said notice must contain
a list of the lands to be sold^ and the amount of taxes due. The treas-
urer shall add to each description of land so advertised, the sum of ten
cents for each description other than town lot, and for each town lot
the sum of five cents, .to defray the expenses of advertising, whidi

Chapter 28. Rbvbnus. 115

amount shall be paid bjrthe county treasurer at the expiration of the
sale, upon the amdavit of the publisher.
,i.>i^§ 62. Shall offer lands for sale.] That on the first Monday of
September in each year, between the hours of nine o'clock, a. m., and
four o'clock, p. M., the treasurer is directed to offer at public sale, at the
coort house, or place of holding courts in his county, or at the treas-
urers oflBce, where, by law, the taxes are made payable, all lands, town
lots, or other real property, which shall be liable for taxes of any de-
scription for the preceding^yea^ or years, and which shall remain due
and unpaid, and he may adjourn the sale from day to day until all the
lands, lots, or other real property have been offered, and no taxable
property shall be exempt irom levy and sale for taxes.

§ 63. Method op sale — parcels — homestead reserved.] The
person who offers to pay the amount due on any parcel of land for the
smallest portion of the same is to be considered the highest bidder,
and when such a portion constitutes a half or more of the parcel it is
to be taken from the east side thereof, dividing it by a line running
north and south, except that town lots are to be divided, in such case,
lengthwise by a parallel with the proper lines of the lots. If the
portion taken be less than one-half oi the parcel it is to be taken from
the southeast comer, in a square form as nearly as the form of the
land will conveniently permit. The preceding provisions of this
section are subject to the following qualifications: The homestead shall
not be sold for any taxes due from the owner thereof until all other
land, town Iqts^ or other real pj-operty shall have been first sold, and
to that end the quantity of land offered for sale may be obtained by
drawing the division line in any direction so as to avoid the homestead,
and when the homestead constitutes a part of the tract or parcel sold,
and is not yet ascertained, the court may, in the action hereafter
authorized, at the suggestion of either party, cause proceedings to be
had similar to that required in relation to mechanics' liens, for the
ascertainment of the homestead. And in all other cases of such sales,
it may take the requisite order and proceedings to ascertain the land
sold, and to set apart from the homestead.

§ 64. PisRSONS BIDDING FAILING TO PAY.] Should any person so bid-
ding fail to pay the amount due, the treasurer may again offer land
for sale if the salie has not closed, and if it has closed he may again adver-
tise it specially and by description, by one written or printed notice
posted for two weeks on the ooor of the court house, or place where
courts are usually held, after which it may be sold at public sale; or
the treasurer may recover the amount by civil action, brought in the
name of the county in which the sale was held.

§ 65. Filing returns 05* sale.] On or before the first Monday of
October following the sale of real property, the treasurer is required
to file in the office of the county clerk of his county, a return of his
sale of land (retaining a copy in his office) showing the lands sold, the
names of the purchasers and the sums paid by them, and also a copy
of the notice of the sale, with a certificate of the advertisement, veri-
fied by an affidavit, and such certificate shall be evidence of the regular-
ity of the proceedings. Ou.*t9 ^a-* \i <f

§ 66. Descriptions entered numerically.] The description of
real estate in such return shall be entered in the same numerical order

116

Rbtbhus.

Chapter 28.

as required in the tax list, and fiuch return shall he as nearly as may
he in the following form, to wit;

THE ABUSE il>B SALE BOOE

DBLmQQJflfT TAXES OF 18.

OOtmrV, DAKOTA.

DateorBkle.

Put of SmUod

orHamaor

Town.

s

1
1

1

s

i

s

1

1
1

Nuinor
Paruhuer.

1

!

:

1,

1

1

Red«em*d.

1

1

1

t

B«m>rka.

■

g 67. Pdrohasee bntitled to obetifioatb.] The jiurchaser of any
tract of land sold hy the county treasurer for taxes will be entitled to
a certificate in writing describing the land so purchased, the sum paid,
and the time when the purchaser will be entitled to a deed, wnich
certificate shall be assignable, and said assignment must be acknowl-
edged before some officer having power to take acknowledgment of
deeds; such certificate shall be signed by the treasurer in his official
capacity, and shall be presumptive evidence of the regularity of all
prior proceedings. The purchaser acquires the lien of the tax on the
land, and if be subsequently pay any taxes levied on the sam^, whether
levied for any year or years previous or subsequent to such sale, he
shall have the same lien for them, and may add them to the amount
paid by him in the purchase, and the treasurer shall make out a tax
receipt and duplicate for the taxes on the real estate mentioned in
such certificate, the same as in other cases, and shall write thereon,
"sold for tax at public sale." Such certificate shall be substantially in
the following form:

CODNTT TltSAeDRER'8 CERTIFICATE OF TAX SALE.

The Tebbitobt op Dakota, I

Counly. f ■

I treasurer of the county of , in the.TerritOiy of Dakota, do hereby certify that the

following described real estate in said couuty and territory, to wit: (deicribiog lihe same) was,

on the day of 18.., duly soldhy me in the manner pro vidaj by law for the

delinquent taxes of'^the year 18. .. thereon, amounting to dollars, including interest and

Ecnalty thereon, and the coats allowed by law, to , for the sum of dollars, he
sing the highest and bust bidder for the same.
And I further certify that uulesa redemption, is made o( real ^tate, in

by law, the said or assigns, will be entith^d to a deed therefor o

day of , A. D. 18. ., on surrender of tbis certificate.

In witness whereof, I have heretmto sot my band this day of A. D. 18 .

Treasurer.

Chapter 28. Rb yenub. 117

§ 68. Fbe fob bbbd.] The treasurer is authorized to demand fifty
cents for each deed or certificate made by him on such sale, and the
fee of the notary public, or other officer acknowledging the aeed, but
any number of parcels of land, bought by any one person, may be
included in one deed or certificate, as. may be desired, by the purchaser;
and whenever the treasurer makes a deed to any land sold for taxes,
he shall enter an account thereof in the sale book opposite the descrip-
tion of the land conveyed.

PRIVATE SALE.

§ 69. Private sale peovidei).] After the tax sale shall have closed,
and afl«r the treasurer has made his return thereof to the county clerk,
as provided in sections sixty-five and sixty-six of this chapter, if any
real estate remain unsold for want of bidders thereof, the county
treasurer is authorized and required to sell the same at private sale, at
his office, to any person who will pay the amount of the taxes, penalty,
and costs thereon for the same. And to deliver to said purchasers a
certificate, as provided in section sixty-seven, of this chapter; and to
make out duplicate receipts for the taxes on such real estate, and
deliver one to the purchaser and the other to the county clerk, as
hereinbefore provided, with the additional statement inserted in the
certificate, that such lands have been offered at public sale for taxes,
but not sold for want of bidders, on which he is required to vmte,
'*sold for taxes at private sale;" and the treasurer is further authorized
and required to sell as aforesaid all real estate in his county on which
taxes remain unpaid and delinquent for any previous year or years.

REDEMPTION.

§ 70. May redeem — how — ^providbd.] The owner or occupant of
any land sold for taxes, or any other person, may redeem the same at
any time within two years after the day of such sale, or at any time
before the execution of a deed of conveyance therefor bv the county
treasurer, by paying the county treasurer for the use of the purchaser,
his heirs or assigns, the sum mentioned in this certificate, and interest
thereon at the rate of thirty (30) per cent, per annum from the date of
purchase, together with all other taxes sul^equently paid, whether for
any year or years previous or subsequent to said sale, and interest
thereon at the same rate from the date of such payment; and the
treasurer shall enter a memorandum of the redemption in the list of
sales, and give a receipt therefor to the person redeeming the same,
and file a duplicate of the same with the county clerk, as in other
cases, and hold the money paid to the order of the purchaser, his agent,
or attorney; Provided, That infants, idiots, and insane persons may
redeem any lands belonging to them, sold for taxes, within one year
after the expiration of such disability.

§ 71. Undivided land sold.] Any person claiming an undivided
part of any land sold for taxes, may reoeem the same on paying such
proportion of the purchase money, interest, principal, and subsequent
taxes as he shall claim of the land sold.

§ 72. Partial bedemption.] In every case of partial redemption,
pursuant to the last section, the quantity sold shall be reduced in pro-

118 Revibnue. Chapter 28.

portion to the amount paid on such partial redemption, and the county
treasurer shall convey accordingly.

EXECUTION OF DEED AKD EFFECT THEREOF.

§ 73. Tax deed after two years — effect thereof.] If no peifeon
shall redeem such lands within two years, at any time after the expira-
tion thereof, and on production of the certificate of purchase, the
treasurer of the county in which the sale of such lands took place shall
execute to the purchaser, his heirs, or assigns, in the name of the ter-
ritory, a deed of the land remaining unredeemed, which shall vest in
the grantee an absolute estate in fee simple, in such land, subject,
however, to all the claims which the territory may have thereon for
taxes, or other liens, or incumbrances.

§ 74. Execution and form of dee».] Such deed shall be executed
by the county treasurer under " his hand, and the execution thereof
shall be attested by the county clerk with the county seal, and such
deed shall be conclusive evidence of the truth of all the facts therein
recited, and prima facie evidence of the regularity of all the proceed-
ings, from the valuation of the land by the assessor up to the execution
of the deed, and such deed shall be substantially in the following or
other equivalent form, to wit:

Whereas, A. B. did, on the day of A. D. 18 , produce to the undersigned,

C, D., treasurer of the county of — in the territory of Dakota, a certificate of pur-
chase in writing, bearing date the day of 18. . . . .-signed by E. F., who at

the last mentione<l date was treasurer of said county, from which it appears that

did on the day of 18 purchase at public auction at the door of the court

house in said county, the tract, parcel or lot of land lastly in this indenture described, and

which lot was sold to for the sum of being the amount due on the following tract

or lot of land returned delinquent for the non-pajrmcnt of taxes, costs and charges for the year

18 to- wit: [here insert the land offered for sale.] And it appearing that the said A. B. is the

legal owner of said certificate of (>UTcha8e, and the time fixed by law for redeeming the land
therein described having now expired, and the same not having been redeemed as provided by
law, and the said A B. having demanded a cWd for the tract of land mentioned in said certifi-
cate, and which was the least quantity of the thact above described that would sell for the
amount due thereon for taxes, costs and changes as above specified, and it appearing Uiat said
lands were legally liable for taxation, and had been duly assessed and properly charged on the

tax book or duplicate for the year 18 and that said lands hud been tegally advertised for sale

for taxes, and were sold on the day of . ^ 18. ...

Now, therefore, this indenture, made this.... .day of 18... between the territory of

Dakota, by C. D., the treasurer of said county, of the first part, and the said A. B., of the second
part, witnesseth, that the said party of the first part, for and ia oon8iderati(»i of the premises
and the sum of one dollar in hand paid, hath granted, bargained and sold, and by these presents

doth grant, bargain, soil and convey unto the said party of the second part heirs and assigns

forever, the tract or parcel of land mentioned in said certificate and described as follows, to wit:
[describe the land.] to have and to hold said mentioned tract or parcel of laud^ with the appur-
tenances thereto belonging, to the said party of the second part heirs and assigns forever, in

as full and ample manner as the said treasurer of said county is empowered by law to sell
the same.

In testimony whereof, the said C. D., treasurer of said county of., has hereunto set his

hand and seal* on the day and year aforesaid.

Attest:

[seal.]

which deed shall be acknowledged by said treasurer before some one
authorized by law to take acknowledgments of deeds.

§ 75. Limitation of action to recover land.] No action shall be
commenced by the former owner or owners of lands, or by any person
claiming under him or them, to recover possession of land which has
been sold and conveyed by deed for non-payhient of taxes, or to avoid
such deed, unless such action shall be commenced within three year^

Chapter 28. Rxvkkus. 119

after the recordiiig of such deed; and not nntil all taxes, interest and
penalties, costs and expenses sball be paid or tendered by the parties
commencing such action.

§ 76. Tax sauc not voidabls.] The sale of lands, town, or city lots,
or any other real property, for taxes, shall not be invalid on account of
such zeal property having been listed, or charged on the duplicate, in
any other name than that of the riffhtfal owner: nor shall any such
sale be invalid, nor the conveyance for the real property so sold be
voidable by reason of the neglect or failure of the treasurer, or any
other officer, to collect the tax for which it was sold, by distraint and
sale of personal property.

§ 77. Certificate nsLiYERSD for deed.J When deeds are delivered
for real property sold for taxes, the certificate therefor must be can-
celed and filed away by the county clerk; and in case of the loss of
any certificate, on being satisfied thereof by due proo£ ajid bond being
given to the Territory of Dakota, in a sum equal to the value of the
property conveyed, as in cases of lost notes, or other commercial paper.,
the county treasurer may execute and deliver the proper conveyance,
and file such proof and bond with the county clerk.

SALES WROifOFULLY HADE.

•

§ 78l Ekboitbous sales oorrbctsd.] When, by mistake or wrongful
act of the tieasurer, land has been sold on which no tax was due at the
time, the county is to save tiie purchaser harmless by paying him the
amount of principal and interest to which he would have been entitled
had the land been rightfully sold, and the treasurer and his sureties
shaJl be liable for the amount to the county on his bond, or the pur*
chaser may recover the same directly from the treasurer.

§ 79. JuDGXENT REQumKD TOR TAXES DUE.] Whenever any action or
proceeding shall be commenced and maintained before any court or
judge to prevent or restrain the collection of any tax, or part thereof,
or any particular ^t of an officer in the collection thereof or to recover
any sack tax befo^ paid, or to recover the possession or title of any
uroperty, real or personal, sold for taxea or to invalidate or cancel any
deed or grant thereof for taxes, or to restrain, prevent, recover, or delay
any payment of taxes, the true and just amount of taxes due upon
such property, or by such person, must be ascertained and jud^ent
must oe rendered and given therefor against the tax payer, and if the
tax be delinquent, execution must issue forthwith for the same.

TAX FOR TERRITORIAL PURPOSES.

§ 80. Tax foe territorial purposes.] A tax of thirty dollars for
teoatorial purposes . shall be levied unon each peddler of watches,
clocks, jewelry, or patent medicines, ana all other ^ares and merchan-
dise not manufactured within the limits of this ten*itofy, for a license
to peddle throughout the territory for one year.

§ 81. Licenses — how obtaineu.] Such license may be obtained
from the county clerk of any county, upon paying the proper tax to
the treasurer thereof, and taking his receipt therefor.

S 82. Peddlino without license.] Any person so peddling with-
out a license is guilty of a misdemeanor, and the person actually

120 Bbvbnub. Chapter 28.

peddling is liable, whether he be the owner or not, and, upon convic-
tion thereof, shall forfeit and pay the sum of fifty dollars to the county
treasurer where such conviction shall be haa, to be. recovered by
civil action in the name of the countv prosecuting for the same. All
fines and penalties recovered under this section shall be applied to the
common school fund of the county prosecuting for the same, and if
any peddler refuses to exhibit his license to any person requiring a
view of the same, he shall be presumed to have none, and if he pro-
duce a license upon trial, such peddler shall pay all costs of prose-
cution.

PAYMENT OP TERRITORIAL FUNDS BY COUNTY TREASURER.

5LjiA«i, ^1<^ § 83. Tebritoeial funds — when and how delivered.] The treas-
urers of the several counties shall pay into the territorial treasury all
funds in their±ands belonging thereto, on or before the first Monday
of Noven^befwe^Sm' year, and at such other times as the territorial
treasurer shall require, and the funds so paid in shall be the identical
territorial warrants, if any^ received by tne treasurer for the payment
of the taxes, or in coin, or in treasury notes of the United States, and
the county treasurer shall be entitled to receive ten cents a mile for
travel each way by the nearest routes in making his returns to the
territorial treasurer, which he may receive either by credit on his
account, or on an order of the auditor upon the territorial treasury;
Provided, hotvever. That when the distance from the county to the
territorial treasury is over fifty miles, then the county treasurer is
required to send the territorial tax by United States draft, or a post
office order, or by express, for which he shall be allowed the actual
expenses for procuring the same, and no more.

§ 84, Penalty for failure.] If the county treasurer shall willfully
and negligently fail to settle with the territorial treasurer at the time
and in the manner above prescribed by law, he shall forfeit to the use
of the territory the sum of five hundred dollars, which sum may be
recovered of him, or his sureties, on suit brought by the territorial
treasurer in any court in this temtory having juripiiction; or, in case
of failure of the territorial treasurer to bring such suit, then any
citizen of the territory may bring the same.

LIST OP LANDS BECOMING TAXABLE.

V^,ql^,\^H § ^5- Lands becoming taxable.] A list of lands becoming taxable
for the first time in each county of the territory, shall be procured by
the territorial auditor from the proper land officers, at the best prices
for the territory, and a list of the lands becou^ing so taxable in each
of the several counties, shall be forwarded by the auditor to the co^jnty
clerk of each county on or before the fifteenth^Mav of Fpbyuarvlbf
each year. t3u ^ \y\ yL. 6\% \

WARRANT BOOK.

§ 86. Warrant books for county — form.] Each county ti'easurer
is required to keep a book called the "warrant book,'- in which he
shall enter every territorial, county, road, or .other w.'rrant or order
by him paid, or received in payment of taxes, specifying the date at

Chapter as.

BxTurcx.

m

which the same was received and canceled, ftom whom received, the
payee, or person in whose favor it was drawn, its number and date,
the amount for which it was originally drawn, the total amount of
indorsements or payments made thereon, the principal sum for which
it was received, the interest allowed, and total amount for which it
was received; and the treasurer shall keep his account of waiTants
and orders by him received for and on account of taxes, separate and
distinct from such as are by him paid in cash, and in another and sep-
arate place he shall enter an account of all indorsements made on
warrants or orders in part payment thereof. Such warrant book shall
be in the following form, to wit:

TBSASURBB^S WARRANT BOOK COUNTY, DAKOTA.

I Reoeired.

P»7e€ of Wftmat.

Number of
Warrant.

Date of

Warrant.

Amoont.

Indorae-
meois.

Princi-

pal.

Intereit

Total.

MISCELLANEOUS PROVISIONS.

§ 87. Penalty foe substituting wareants.] If any county treas-
urer or his deputy, or any other person, shall knowingly or willfully
• make, issue and deliver, any tax receipt, or duplicate tax receipt, and
therein designate any part or parts of the amount thereof as being
paid in warrants or orders when the same was or were paid in cast
such treasurer, or deputy treasurer, or other person, shall be deemed
guilty of a high crime and misdemeanor, for which he may be indicted
By a grand jury, and on conviction thereof before any court of com-
petent jurisoiction in this territory, he shall be sentenced to imprison-
ment in the penitentiary for a term of not less than one, nor more
than five years, in the discretion of the court,

I 88. Fraui)ulkj|t' RECEIPTS — PENALTY.] If any county treasurer in
this territory, or hfc deputy, or any person, shall knowingly^ or will-
fully make, issue and deliver, any tax receipt, or duplicate tax receipt,
required by section forty-three of this act to be issued, by fraudulently
making the tax receipt and its duplicate, or the paper purporting to
be its auplicate, different from each other, with intent to defraud the
Territory of Dakota, or any county in said territory, or any person or
persons whomsoever, , such treasurer, or deputy treasurer, or other
person, shall be deemed guilty of a hi^h crime and misdemeanor for
which he may be indicted by a grand jury, and on conviction thereof
before any court of competent jurisdiction of this territory, he shall
be sentenced to imprisonment in the penitentiary for a term of not
less than one year, nor more than five years, in the discretion of the
court.

§ 89. Dereliction of officer.] In the case of dereliction of duty
on the part of any officer or person required by law to perform any
duty under the provisions of this act, in any county in this territory,
such person shall thereby forfeit all pay and allowance that would
otherwise be due him, and the county commissioners in any such
county, on receiving satisfactory evidence of such dereliction or fail-

laS RtVENTTE. Chapter 28,

ure to perform, as required by law, any duty enjoined by this act, shall
refuse to pay such person or persons any sum whatever for such
services.

§ 90. MiscBLLANEOtJs RECEIPTS.] ' When any money shall be paid to
the county treasurer, he shall make the proper duplicate receipts for
the same, as in the case of the J)ayment of taxes, and shall give one of
said receipts to the person paying said money, and the other to the
county clerk within one month thereafter.

§ 91. Interest on warrants received.] When the county treas-
urer shall receive any county or territorial warrants, or orders, on
which any interest is due, he shall note on such warrants or orders the
amount of interest by him paid thereon, and shall enter in his account
the amount of such interest, distinct from the principal.

§ 92. Redeemed warrants.] When the county treasurer of any
county shall pay any county order drawn on him by the county com-
missioners, or when he shall take or receive any such order in payment
for any tax, he shall write on the face of such order "Redeemed," ajid
the date of redemption, and shall sign his name thereto.

§ 93. When warrant exceeds tax.] When any person desiring
to pay any taxes due and unpaid, shall present a county order to the
treasurer of any county in payment for such tax, which shall exceed
the amount that such treasurer is authorized to receive in county
orders in payment for such tax, he shall indorse on the back of such
order in part payment, the amount he is authorized by law to receive,
and date the same. Said treasurer shall take two receipts from the
holder of such order, for the amount so indorsed and paid, showing
the date of the indorsement, a full description of such county order,
including the date thereof, to whom given, the amount for which it
was given, and all the indorsements thereon; one of which receipts he
shall forthwith file with the county clerk, the other he shall retain as
his voucher.

§ 94. Part payments applied.] When any person shall desire to
pay only a portion of the tax charged on any realiestate, such person
shall pay a like proportion of the several taxes chaHged thereon, and no
person snail be permitted to pay one of said taxes without paying the
others, except the tax for the erection, completion, or repair of school
houses, the collection of which shall have been enjoined by law.

§ 95. Delinquent treasurer.] If any county treasurer shall fail
to make return, fail to make settlement, or fail to pay over all money
with which he may stand charged, at the time and m the manner pre-
scribed by law, it shall be the duty of the county clerk, on receiving
instructions for that puroose from the territorial auditor, or from the
county commissioners oi his county, to cause suit to be instituted
against such treasurer and his sureties, or any of them, in the district
court of his county.

§ 96. Board may remove.] Whenever suit shall have been com-
menced against any delinquent county treasurer, as aforesaid, the
board of county commissioners of such county may, at their discretion,
remove such treasurer from oflBce, and apj^oint some suitable person
to fill the vacancy thereby created, as hereinbefore provided.

§ 97. Additional surety.] The county commissioners of any one
of the counties of this territory, may require the county treasurer to

Chapter 28.

Revenue.

12S

give additional freehold sureties, whenever, in the opinion of a majority
of said commissioners, the existing security shall nave become insuf-
ficient; and said commissioners ajre^ hereby also authorized and
empowered to demand ai!d receive *^fr<5m said county treasurer an
additional bond, as required by law, with good and sufficient freehold
security, in such sum as said commissioners or a majority of them may
direct whenever, in their opinion, more money shall have passed, or
is about to pass into the hands of said treasurer, than is or would be
recovered by the penalty in the previous bond.

§ ftS. If treasuker fail.] It any county treasurer shall fail or
refiise to give such additional security or bond, for and during the time
of ten days from and after the day on which said commissioners shall
have required said treasurer so to do, his office shall be considered
vacant, and another treasurer shall be appointed, agreeably to the pro-
visions of law.

§ 99. Treasuseb not discount warrants.] No county treasurer
shalL either directly or indirectly, contract for or purchase any order or
orders, issued by the county of which' he is the treasurer, at any dis-
count whatever upon the sum due on such order or orders; and if any
county treasurer shall so contract for or purchase any such order or
orders, he shall not be allowed, in settlement, the amount of said order
or orders, or any part thereof, and shall also forfeit the whole amount
due on sucn order or orders, to be recovered by civil action, at the suit
of the Territory of Dakota, for the use of the county.

§ 100. Certain credits forbidden.] The county treasurer, on his
settlement with the county commissioners, shall not be credited with
any sum for interest paid on any order, unless he shall, at the time of
receiving the same, have noted thereon the amount of interest due
thereon.

§ 101. Shall not loan or use funds.] If any county treasurer
shall loan any money belonging to his county, with or without interest,
or shall use the same for his own individual purpose, he shall forfeit
and pay for every such offense a sum not exceeding five hundred
dollars, nor less than one hundred dollars, to be recovered in action at
law at the suit of the Territorv of Dakota, for the use of the countv.

§ 102. Payments after SETTLfiMEMT.] Each county treasurer shall,
imniediatelv after the annual settlement with the countv commission-
erfc> of his county, on demand and presentation of the order of the clerk,
issued by direction of the county commissioners therefor, pay over to
the district or precinct treasurer, city treasurer, or other j^roper officer,
all moneys in the county treasmy belonging to any district precinct
city, town, or school district; Provided, Tnat the moneys mentioned in
this section may, by the direction of the proper local officers, remain
in the county treasury, on the order of the county clerk as aforesaid.

§ 103. Detailed exhibit, what to contain.] The county clerk and
county treasurer, conjointly, shall make out annually a detailed
exhibit showing the receipts and disbursements of the county for the
fiscal year, and also the assets and liabilities at the time of making
out the same; said exhibit shall show the amount of all oi-ders on the
treasury issued during the year next preceding, to whom allowed, and
on what account and also the liabilities of the county stated in detail,
and the assets of every kind as near as may be; showing also the

124 Bjevbnue. Chapter 28,

•

amount of funds in the treasury at the time of making said exhibit,
on what account paid in, and the kind of funds; said exhibit shall be
made out annually, and posted up in the office of the treasurer, on
the first Monday in Qctohfir.^<^»^'VN^°'"^^l

§ 104. Loan anp embezzlement punished.] If any county treas-
urer, other officer or person, charged with the collection, receipt safe
keeping, transfer or disbursements of the public money, or any part
thereol; belonging to the territory, or any county, precinct, district,
city, town, or school district in this territory, shall convert to his own
use, or to the use of any other person or persons, body corporate, asso-
ciation or party whatever, in any way whatever; or shall use by way of
investment in any kind of security, stocks, loan, property, land or
merchandise, or in any other manner or form whatever; or shall loan,
with or without interest, tq any company or corporation, association,
or individual; or if any person shall advise, aid, or in any manner
knowingly participate in such act, every such act shall be deemed and
held in law to be an embezzlement of so much of said money or
other property as aforesaid, as shall be thus converted, used, invested,
loaned, or paid out as aforesaid, which is hereby declared to be
a high crime and misdemeanor, and upon presentation, trial by
indictment, and conviction thereof, before any court of competent juris-
diction in this territory, such county treasurer, or other officer, or
person, shall be sentenced to imprisonment in the penitentiary, and
kept at hard labor, for a term of not less than one year nor more than
twenty-one years, according to the magnitude of the embezzlement,
and also to pay a fine equal to double the amount of money or other
property so embezzled, as aforesaid; which fine shall operate as a
; udgment at law on all the estate of the party so convicted and sen-
tenced, and shall be enforced by execution or other process, for the
use only of the party or parties whose money or other funds, property,
bonds or securities, assets or effects, of any kind as aforesaid, have
been so embezzled; and in all cases, such fine so operating as a judg-
ment, shall only be released or entered as satisfied by the party or
parties in interest, as aforesaid.

§ 105. EXTKAOIIDINARY EXPENDITURE REQUIRES VOTE.] If the COUnty

commissioners deem any expenditure necessary, greater in amount than
can be provided for by the annual tax, they shaU require a vote of the
county thereon, either at a general election, or one called especially
for the purpose. In either case, four weeks' notice of said election
shall be given in each newspaper published in the county, and the
notice shall specify the amount to be raised, and the precise purpose
for which it is to be expended; and if a majority of the votes cast
authorize the tax, the county commissioners shall cause the same to
be levied and collected in the same manner as the annual tax, and, if
possible, at the same time; Provided, howeve7% That no new assess-
ment shall be made for any special tax.

Chapter 29. Hiohwats. Bridoks, Fsrriss, Ac. 125

CHAPTER XXIX.

Highways, Bridges, Ferries, and Road Supervisors.

TERRTTCmiAL ROABB.

§ 1. Section linss hiohwats.] All section lines shall be, and are
hereby declared, public highways, as far as practicable; Provided^ That
nothing in this act shall be so construed as to interfere ¥rith existing
" ' "iways in the settled portions of the territory,

§ 2. Vacation and change.] The board of county commissioners
of each county shall have power to vacate or change the highways
within their respective counties, located by the legiSative assembly,
as hereinafter provided.

§ 3. Sixty-six feet wide.] The public highways along section
lines, as declared by the first section of this chapter, shall be sixty^six
feet wide, and shall be taken equally from each side of said lines, unless
changed as provided in the preceding section.

LOCATION, vacation AND CHANGE OP HIGHWAYS RUNNING THROUGH MORE

THAN ONE COUNTY.

§ 4. Petition and proceedings.! WTien fifteen freeholders of any
county shall petition the board of commissioners of such county for
the location, change, or vacation of any highway running into more
than ,one county, six of which freeholders shall reside in the immediate
neighborhood of such highway, setting forth in such petition the begin-
ning, course, and termination of the mghway proposed to be located
or vacated, or of the change desired to be made, together with the
names of the owners and occupants, or aeents, of the lands through
which the same may pass, the county clerx of such county shall notify
the county clerk of each of the counties in which such highway is to
be run, located, vacated, or changed, of the filing of such petition,
accompanying such notice with a copy of such petition, which shall
be by such county clerks laid before the several boards of county com-
missioners at their next session thereafter, when such board shall
appoint commissioners according to the regulations hereinafter pro-
vided.

§ 5. Notice and examination.] "Upon the board of commissioners
of the county in which such petition is first filed, being satisfied that
notice thereof has been given at least twenty days before the session
of such board at which such petition is to be heard, by publication in
a newspaper of each county in which such highway is to be run, vacated,
or changed, for three weeks successively, or by written or printed
notices posted up in three of the most public places in the neighbor-
hood of such highway, in each of such counties, such board shall
appoint a commissioner to examine such highway.

126 Highways, Bridobb, Ferries, Ac. Chapter 29.

§ 6. Clerk to notify examiners.] Immediatelv upon the appoint-
ment of such commissioner, the county clerk of such county must
notify the countv clerk of each of the counties interested, specifying,
in such notice, the time and place when such commissioners sha:ll meet
to commence the examination of such highway; when such last
mentioned county clerk, and tne county clerk of the county where such
petition is first filed, shall issue precepts to the sheriflfs of their respec-
tive counties, directing thqm to notify such commissioners of such
appointments, and the time atid place of thair meeting.

§ 7. Number and disagreement.] Each board shall appoint one
commissioner, and in case the number is equal and cannot agree, the
commissioner thus appointed shall appoint another, who shall perform
the same duties and receive the same fees as those first appointed.

§ 8. Oath and duty of examiners.] At the time ana place desig-
nated in the notice given by the county clerk of the county in whicn
such petition is first filed, such commissioners shall meet, and having
first taken an oath, to be administered by some authorized officer, to
faithfully perform their duties, shall proceed to examine the highway
proposed to be located, vacated, or changed, and in such examination
may employ a surveyor, and a necessary number of chain-carriers and
markers.

§ 9. Report of same.] After such commissioners, shall have com-
pleted their examination, they shall draw up a report of their proceed-
ings, setting forth the highway proposed to be located, vacated, or
changed by course and distance, and recommending therein, according
to the opinion of the majority of such commissioners, either that the
prayer of such petition shall be granted or rejected ; a copy of which
report shall be returned to the board of commissioners of each of the
counties interested at their next session thereafter.

§ 10. Decision upon petition.] Upon the return of such report, the
board of commissioners shall proceed to determine the prayer of such
petition, and if there shall be no remonstrance against the same,' and
it is recommended in such report, such board may, if they deem it
expedient, declare it granted, and, if so declared, shall direct the county
clerk to notify the county clerks of each of the other counties interested
thereof. Then, if there be no remonstrance pending in either county
interested, the county clerk of each of such counties shall notify the
supervisors of the road districts in his county through which such
highway passes, or the change is made, when such supervisors shall
open so much of such highway as lies in their respective districts, and
such road supervisors must in like manner be notified of the vacation
of any highway, or of any part thereof.

§ 11. Dismissal of petition.] If such commissioners do not recom-
mend the prayer of such petition to be granted, the boards of com-
missioners of the counties interested shall order it to be dismissed, but
such order of dismissal shall not be a bar for other petitions thereafter
concerning the same subject matter.

§ 12. Remonstrance heard,] If at the session of the board of
commissioners at which the report of the commissioners, appointed to
examine such highway, is presented, any person shall remonstrate
against granting the prayer of the petition, setting forth in writing
tnat he is damaged in a sum mentioned, by the location, vacation, or

I

Chapter 29. Highways, Bridgbs, Ferries, Ac. 127

change of such highway, to the truth of which he shall take and sub-
scribe an oath, such board shall appoint three persons, residents of
such county, to review that part of sucli highway, whereof such com-
plaint is made, and shall direct the county clerk of such county to
notify the county clerk of each of the other counties interested in
such remonstrance, when further proceedings touching such petition
shall be continued until the ensuing term oi such board. •

§ 13. Viewers assess damages.] Such revieweirs, at the time and
place designated by the 43oard of commissioners to whom such remon-
strance is presented, shall meet, and having taken an oath, before some
ofiBcer autnorized to administer oaths, to faithfully perform their
duties as such reviewers, shall proceed to examine that part of such
highway, or the change thereof complained of, and having done so,
shall, at the next term of such board, report their proceedings to such
board, in which report they shall specify the amount of damages sus-
tained by the person remonstrating, if any; whereupon such board
shall determine whether the damages assessed are greater than the
utility of the proposed highway or change, and if they shall be of
opinion that the prayer of the petition should not be granted, thev
shall direct the county clerk of such county to notify the county clerk
of each of the other counties interested thereof, and continue further
proceedings in the premises until the next term thereafter; but if they
shall be of the opinion that the damages should be paid and' the
prayer of the petition be granted they snail direct such county clerk
to notify the county clerk of each of the other counties interested of
the amount of such damages, and shall continue further proceedings
to the next term thereafter.

§ 14. Petition when rejected.] If more freeholders residing
along the highway proposed to be located, vacated, or chanced, remon-
strate against granting the prayer of such petition than those of the
same county petition therefor, the board of commissioners of such
county shall decide against such petition, an^ shall direct the county
clerk of such county to notify the county clerk of each of the other coun-
ties interested therein of such fact and decision, and continue further
proceedings in the premises until the ensuing term.

§ 15. Final determination.] At the next term after the reception
of notice of any remonstrance, and. the proceedings thereon, the
county clerks of such counties shall lay the same before their respec-
tive boards of commissioners, who shall determine whether the prayer
of the petition ought to be granted, and shall cause the county clerk of
each county interested therein to be notified, and if the boards of com-
missioners of a majority oi such counties decide in favor of such
petition, at the term of such boards when the same is ascertained, such
highway shall be declared located, vacated, or changed, and such
supervisors notified thereoif as hereinbefore provided* but if a majority
of such boards decide, against such petition, it shall be declared dis-
missed whenever it is ascertained, and all damages declared assessed
shall be paid equally by the counties interested; and if such reviewers
shall fail to assess any damages, the person asking the same shall pay
the costs of such review,

§ 16. Fees for services.] Such commissioners appointed to
examine such highway, and such reviewers, shall receive each two

128 Highways, Beidgbs, Fbbbibs, &o. Chapter 29,

dollars for every day they may be necessarily employed, and such sur-
veyor, chain-carriers and markers shall receive such compensation as
the board of county commissioners, where such petition is first filed,
shall deem reasonaole, to be paid equally by each county interested.

§ 17. Road recorded in each county.] Whenever a highway is
located, vacated, or changed, the order therefor shall be entered of
record in the' order book of the board of commissioners of each county
interested, in which county such highway, or change thereof, shall he
particularly described by course and distance.

OF THE location, VACATION, AND CHANGE OF HIGHWAYS NOT ON SECTION

OR quarter^section lines.

§ 18. Petition and notioe.1 Whenever twelve freeholders of the
county, six of whom shall reside in the immediate neighborhood, shall
petition the board of county commissioners for the location, vacation,
or change of any public highway, other than on section or quarter-sec-
tion lines, such board, if they shall be satisfied that notice of such appli-
cation has been given by publication three weeks successively fh a
newspaper published in the county, or by posting up notices in three
of the most public places in the neighbornood of such highway, or
change, at least twenty days before the meeting of the board at which
such petition is to be presented, shall appoint three persons to view
such highway.

§ 19. Sheriff notifies viewers. 1 The county clerk of such county
shall issue a precept to the sheriff tnereof, commanding him to notify
such viewers of the time, place, and object of their meeting, and such
viewers, at such time and place, after having taken an oath, before
some officer authorized to administer oaths, to faithfully perform their
duties, shall proceed to view the highway, or such change; and if they
shall deem the highway to be located, or the change to be made, of
public utility, they shall lay out and mark the same on the best ground
not running through any person's enclosure or other improvement of
one year's standing, without the owner's consent, unless upon examina-
tion a good way cannot otherwise be had.

§ 20. Report and record.] Such viewers, or a majority of them,
shall make a report of their proceedings at the ensuing session of the
board of commissioners of the county m which such location, change,
or vacation may be made, giving a full description of such location,
change, or vacation, by m^tes and bounds and by its course and dis-
tance, except that in case of the vacation of a road, of any part thereof,
such description only as will designate it clearly, shall be required;
and in such case, a copy of the oroer vacating such hiffhwav shall be
recorded by the proper county clerk of the county, ana shall cause the
supervisors of the road district to be notified accordingly.

§ 21. Opening of road.] If no objections be made to such proposed
highway, vacation, or change, such board shall cause a record thereof
to DC made, and shall order the samfe to be opened and kept in repair,
which order shall be transmitted to the trustees of any of the town-
ships in which such location or change is made; and shall cause notice
thereof to be given to the proper supervisor, to work such location or
ehang^.

Chapter Sd.

Highways, BiuDess, Fsbriss, kc.

129

§ 22. ApponffTiOBNT OF BSYIEWEB8.] If azLv porsoii through . whose
land such highway or change may pass shall feel a^ggrievea thereby,
such person may at any time before final action of the board thereon,
set forth such gneyances by way of remonstrance, and the said board
shall thereupon appoint three disinterested freeholders as reviewers
and assign a day and place for them to meet.

§ 28. Rbvixwbbs take oatk— bbports.] Such reviewers, having five
days' notice, to be given by the party remonstrating, shall meet at
the time and place designated, and take an oath faithrolly to discharge
the duties assigned them, and shall then, or on any other day to which
a majority may adjourn, prior to the next session of said board, pro-
ceed to review the proposed hi^way and assess the damages, if any,
which such objector may sustain from such highway or change being
opened, vacated, or continued through his lands, and shall report the
same to the ensuing session of such board.

§ 24. AcTioiir ON BEPOitT OF MAJOBiTY.] If a niajorftv of the viewers
assess and report damages in fe,vor of the objector, and the board shall
consider the proposed highway, vacation, or change to be of sufficient
importance to the public, they shall order the costs and damages to
be paid out of the county treasury; but if a majority report against
the claim for damages, the obiector shall pay the costs, and when pay-
ment of damages is made as herein provided, such highway shall be
recorded and ordered to be opened and kept in repair, as hereinbefore
provided.

§ 25. Sbtting asidb assessment.] If it shall be made to appear to
the board that the damages assessed are unreasonable, they may set
aside such assessment and order another review, under the same regula-
tion§ as provided in case of the first review.

§ 26. Kevtewebs appointed.] If any one or more freeholders resid-
ing in such county, along such proposed highway, vacation, or change,
slmll object to the same at any time before final action thereon, as not
being of public utility, other viewers may be appointed, who shall

Eroceed, on a day to be by them desi^ated, after having taken an oath
kithfully to discharge the duties assigned them, to examine the pro-
prosed highway, ana shall make report to such board at their next
session, wnether or not^ in their opinion, the said highway, vacation,
or change, will be of public utility.

§ 27. Repobt of beviewebs.J If a majority of the viewers last
named report against the public utility of such highway, the same
shall not be established, unless the petitioners will open and maintain
the same at their own expense; but if they report favorably thereto
the objector shall pay the costs of the review, and the highway shall
be recorded and ordered to be opened aiid kept in repair; but in no
case shall a highway be opened, vacated, or a change be made, if a
majority of the freeholders residing along such proposed hi^way, or
along such chan^, or along the highway proposed to be vacated, shall
remonstrate against the same.

§ 28. Payment of damages.] No such highway shall be opened,

worked, or used, until the damages assessed therefor shall be paid to

' the persons entitled thereto, or deposited in the county treasury for

their use, or they shall give their consent thereto in writing, filed with

the county clerk of such county.

■■

130 Highways, Brtdoxs, Fbbrie6, &c. Chapter 29.

§ 29. Appeal to- bisteict ooubt;] Any person aggrieved by any
decision of any board of commissioners may appeal taereftom to the
district court. of such county, upon his filing a bond, with a surety and

Senalty, to be approved by the register of deeds of such county, con-
itioned for the due prosecution of such appeal, and the payment of
costs, if costs be adjudged against him; and m case proceedings shall
be had in more than one county, the county clerk of each county, on
being notified of such appeal by the county clerk of the county in which
the appeal is taken, shall transmit to the clerk of the court to which
the appeal is taken, all the proceedings in such county, and npon the
determination of such appeal such clerk shall notify the county clerk
of each of the counties interested thereof.

OF THE SAllE UPON SEQTION AND QUARTEB^BOTION LINES.

§ 30. Action without survey or vijiw.] The board of county com-
missioners has power to establish, change^ and yacate highways upon
section and quarter-section lines, when tne initial and terminal points,
and the course of the highway, can be clearly described, without the
appointinent of viewers, or the services of a surveyor; but in all other
respects the proceedings therein shall be governed by the provisions of
the preceding subdivision of this chapter, relating to the establishmeni^
vacation, and change of highways not on. such Imes^..

MISCELLANEOUS PROVISIONS.

§ 31. Roads sixty-six fe?:t wjdb.] No road shall be less tlmn sixty*
six feet wide; and the order for laying any highway must specify the
width thereof.

§ 32. On COUNTY qr town lines.] Public highways established on
the county, or township line, shall be opened and repaired by the
supervisor of the proper road districts on each side thereof, and by the
joint labor of the hands in each of such districts in each county or
township.

§ 33. Highway running through enolosure.J Whenever any public
highway shall have been laid out through any encloi^ed laud, the super-
visor shall give the occupant of such land, or the owner, if a resident
of the road district, sixty days' notice in writinff, to remove his fence;
but such owner, or occupant, shall not be compelled to move such fence
between the first day of April and the first day of November; and if
such fence is not removed pursuant to such notice, such supervisor
shall cause the same to be done. , , .

§ 34. Credit when no damages.] If the owner or occupant shall
not; have been allowed damages for the laying out of sneh highway
upon his land, the supervisor shall give the person removing such fence-
credit on his highway tai^ for. any amount that the supervisor shall
deem just, subject to the approval of the county commissioners.

§ 35. Six years non-use vacates.] Every public hiffhway already
laid out, or which may hereafter be laid out, andwhicm shall not be
opened and used within six years from the time of its being laid out,
shall cease to be a highway for any purpose whatever; but if any dis- ^
tinct part thereof shall have b^^n opened and used within six years,
such part shall not be affected by the provisions of this section, nor shall

Chapter 29. Highways, Bbibgbs, Fbbbiss, &o. 131

this secfcion be applied to streets and alleys in any town; Providedj^
however J That the board of county e(»nmissioner6 shall decide th&,t
public necessity does not require such road kept open, which decision
shall be recorded by the clerk of the court, whereupon said vacated high-
way shall vest in the rightful owner, who may have the title thereof,
according to law, of the property on each side of said highway.

§ 36. 0BTTLBB8 PBEBHOLDBBfi.] In all applications for the location,
change, or vacation of any public highway, actual settlers upon any
public lands in any county m this territory, shall have and possess all
rights in this act granted to freeholders. "

§ 37. Twenty ybars' use.] All public highways which have been
or may hereafter be used as such, for twenty years or more, shall be
deemed public highways.

% 38. ViBWBRS DI8INTBBESTBD.] No pcrsou owuiug lauds, or who
is related by consanguinity to any pereon owning lands along any
proposed highway or change, shall be competent to act as commis-
sioner, viewer, or reviewer thereof.

§ 39. Pay of viewebs.] Viewers and reviewers appointed under
this act, shall receive two dollars for every day they shall be necessarily
employed as such.

§ 40. Benefits considered.] The benefits to accrue to any owner,
occupant or claimant of lands by reason of opening any highway, are
to be considered by the commissioners, or the viewers, in the determi-
nation and award of damages for the same.

§ 41. Pbivate boads.] Any person may have a private road laid
out, changed, or vacated, upon presenting a petition to the board of
commissioners of the county in which such petitioner resides, under
regulations hereinbefore provided, for roads running through one
county only; Provided, That such board may order sucn private road
to be laid out) changed, or vacated, without any view, if there be no
remonstrance a^inst such petition; and the petitioner shall open
and keep in repair such road at his own expense.

§ 42. Public lands— damages.] When any person shall acquire
the title to government lands over which any road has been or may
hereafter be duly laid out, subsequent to the laying out of such road,
the person so acquiring such title shall, within three months after ^
receipt of his patent therefor, assert his claim for damages in the
manner hereinbefore provided in case of locating highways, and such
road shall remain and be a public highway, but his damages, if any,
shall be paid; and in case oi a failure for that length of time to assert
his claim for damages, as aforesaid, he shall thereafter be debarred
from asserting such claim.

§4^. Oooupyino claimants.] All puBlic land in this territory,
settled upon and occupied by settlers thereon, shall be subject to all
the provisions of this act so far as the rights and liabilities of such
settlers are concerned.

§ 44. Line boads— one half op each.] When a public highway is
laid out and located upon the line dividing .the land of two individuals,
one half of the same must be taken, if practicable, from the land of
each.

§ 4S>. Bond fob costs.] In all cases the person or persons remon-
strating against the establishment, change, or vacation of a public

182 Highways, BBioaBS, Febris8> Ac. Chapter 29.

highway, or who may petition for damages oecasioiied thereby, mast
give to the board of county commissioners a bond, with approved
security, for the payment of all costs occasioned by such remonstrance
or petition for damages in case the highway be established, or no
damans be allowed.

§ 46. Timber along highway.} On all public highways of not less
than sixty-six feet in width, the owners, occupants or claimants of adjoin-
ing lands may use and occupy one rod m width of such highway
adjoining such lands for the purpose of cultivating the growth of
timber and trees thereon; Provided^ That the same be Kept con-
tinuously in good order and under full timber and tree cultivation.

§ 47- Hedge protection.] Any person cultivating a hedge upon
his land adjoining a public highway and desiring to fence the sanae,
may place such fence seven feet over and upon such highway; Pro-
videdj That it do not obstruct the public travel.

OP BRIDGES.

§ 48. Bridges part of highway.] Bridges erected or maintained
by tiie public constitute a part of the public highway.

duties op persons using public highway.

§ 49, Vehicles turn to right.] Whenever any persons shall meet
each other on any brids^e or road, traveling with carria^^es, wa^ns, sleds,
sleighs, or other vehicle, each shall pass to the right of the middle of the
traveled part of such bridge or road) so that the respective carriages,
or other vehicles aforesaid, may pass each other without interference.

§ 50. Penalty — damages.] Eveiy person offending against the
provisions of the preceding section shall^ for each offense, forfeit a sum
not exceeding twenty dollars, and shall also be liable to the party
injured for all damages sustained by reason of such offense.

§ 51. Drunken drivers.] No person owning or having the direc^
tion or control of any coach or other vehicle, running or traveling
upon any road in this territory, for the conveyance of passeng^:^,
shall employ, or continue in employment, any person to drive such
coach or other vehicle, who is addicted to drunkenness, or to the
Jk excessive use of intoxicating liquors, and if any such pei^on shsbU
^ violate the provisions of this section, he shall forfeit a sum not leas
than ten and not exceeding fifty dollars, and shall be liable for all
damages sustained.

§.5y. Hitching passenger teams.] It shall not be lawful for the
driver of any carriage or other vehicle used for the conveyance > of pas-*
sengers, to leave the horses attached thereto while any passenger remfbifid
in or upon the same, withoiA making such horses fast with a sufElcieiit
halter, rope, or chain, or without some suitable- person to take the
charge or guidance of theai, so as to preveiit their running; and if any
such driver shall violate the provisions of this section, he, and his
employer or employers, jointly and severally, shall • forfeit a sum not
exceeding twenty dollars;^ but no prosecution shall be; commenced
therefor after the expiration of three moniiis froim . the time of com-
mitting the offense.

§ 53. Passenger conveyance liable.] The owners of every carriage
or other vehicle, running or traveling upon any road or public highway,

Chapter 29. Highway€, Bbidqbs, Ferries, &c. 133

for the oonveyanoe of passengers for^ hire^ shall be liable, jointly and
severally, to the party injured, in all cases, for all damages done by
any person in the employment of such owners as a driver, while
driving such carriage, to any pereon, or to the property of any person,
whether the act occasioning such injury or damage be willful, negli-
gent, or otherwise, in the same manner as such driver would be liable.

OP FERRIES.

§ 54. Unlawful without lease, or in two miles op other.] It
shall be unlawful for any person to establish, maintain, or run, upon
any waters within this territory, any ferry upon which to convey,
carry, or transport any persons or property, for hire or reward, without
first having obtained a license therefor, as hereinafter provided; and^
where but one bank or shore is in this territory, the board of commis-
sioners for the proper county have the same authority, and this law
applies with like enect, as if the entire stream were within this terri-
tory, so far as the banks and waters actually within it are concerned.
And when any ferry lease has been granted, no other lease shall be
granted within a distance of two miles thereof, across the same
stream. Any person violating any of the provisions of this section,
shall, for each offiense, forfeit and pay to the proper county not less
than five dollars^ nor more than one hundred dollars, with costs, to be
reoovered in an action in the name of the territory.

§ 55. County board leases — terms.] The board of county com-
missioners of the county to whom application shall be made for a
l;erry, in the manner hereinafter provided, are hereby authorized, and
it sliall be their duty to grant a lease of such ferry, for a term not
exceeding fifteen years, to such person or persons who shall bid and
secure the payment of the highest amount of rent for the same, such
lease to be executed by the said board of county commissioners as
lessors, and such highest bidder or bidders as lessees, and the county
commissioners of any county in this territory that have leased to any
person or persons Uie ferry across any stream or streams in this terri-
tory, shall be empowered to extend to such person or persons the lease
so granted to any person or persons putting in a steam ferry at the
same rate as previously paid ; Provided^ That such extended time shall m
not exceed fin;een years from the time of the granting of the first lease, ^
and that, when in the opinion of the county commissioners of the
county wherein such lease is granted, the rates fixed by law for cross-
ing such ferry be too high they shall have the right to fix the rates as
in their judgment may seem just.

§ 56. Hates on Missouri, sioux, dakota, and vermillion.] The
rates for crossing the Missouri river- on ferries, shall not exceed the
following, to wit:

For two horses, mules, or oxen, and wagon, with or without load,
one dollar.

For each additional pair of horses, mules, or oxen, thirty cents.

For each two homes or mules, and buggy, seventy-five cents*

For each one ho(rse or mule, with buggy and driver, fifty cents.

For each lead horse or mule, twenty-five cents.

For loose cattle per head, fifteen cents.

For sheep and swine per head, ten cents.

134 Highways, Bridgbs, Fbrbies, &c. Chapter 29.

For each one hundred pounds 6f freight or merchandise unloaded,
ten cents.

For each thousand feet of lumber unloaded, one dollar.

The rates for ferriag^e across the Big Sioux river, the Vermillion
river, and the Dakota river, shall not exceed the following, to wit:

For foot passengers, each, ten cents.

For each horse or mule, with or without a rider, ten cents.

For each head of loose cattle, five cents.

For two horses, or mules, or cattle team, loaded or without load,
with driver, twenty-five cents.

For each horse, or mule, or ox, over two, attached to a team, five
cents.

For a sinffle horse or mule, to a buggy, fifbeein cents.

For each nead of sheep or swine, five cents.

All freight not attached to teams, five cents per one hundred pounds.

All lumber in pile, fifty cents per thousand feet.

Said ferryman is required to keep a schedule of his legal rates posted
up in a convenient place at or near said ferry, in easy view of the
passing public.

§ 57. Fbbbies in UNORGAiazED COUNTIES.] The secretary of the
territory is hereby authorized, when application is made to him, to
grant a lease of any ferry in any unorganized county or counties, or
m any other unorganized county, within and under the jurisdiction of
the territory, for the like period and under the provisions of this
chapter in every respect wnich are applicable thereto. The money
received therefor shall be by him paid into the territorial treasury;
Provided^ That all licenses granted by the secretary under this section
shall terminate upon the organization of the county in which the
same or any part thereof lies, and it shall thereafter be subject to the
general law as herein provided.

§ 58. Safety of ferries.] Every person obtaining a lease to keep
a ferry as aforesaid, shall provide and keep in good repair a good and
sufficient boat for the safe conveyance of persons or property, and
when the river or creek over which the ferry is kept is passable, shall,
with a sufficient number of hands to work and manage the boat, from
^ sunrise till sunset, and with reasonable care and promptness, convey
^ across said ferry all persons and property presented for transportation
across the same. And if any leasee, as aforesaid, shall fail or neglect
to perform all or any of the duties enjoined upon him by this act^ or
shall demand or receive a higher rate of ferriage than shall be allows
by the preceding section of this act, the lessee so offending, shall for
each offense forfeit and pay the sum of ten dollars, to be recovered in
the name of the Territory of Dakota, before any justice of the peace
of the proper county.

§ 59. Penalty for unlawful fbrry.1 If any person shall keep a
ferry in any of the organized counties oi this territory, without a lease
first obtained from the board of county commissioners as aforesaid,
the owner or person so offending shall forfeit and pay a sum of not
less than fifty dollars, and not exceeding five hundred dollars, for
each year or fractional part of a year such person shall keep such
ferry, to be recovered in a civil action in the name of the Territory
of Dakota.

Choj^ 29. Highways, BRu>ejB3, Ferbiiss, &c. 135

§ 60. MaK£Y TO SCHOOL FUND.] All moneys which may be received
by the board of county commissioners, upon leases granted for ferries
as aforesaid, and all forfeitures collected for violations of the provisions
of this chapter, shalL within thirty days after the receipt thereof, be
paid to the county treasurer, for the use of the public schooLa of the
county, and the same shall be apportioned among the several districts
of the county in like manner as other school funds are now by law
aj)portioned.

§61. Temporary ferries.] Nothing in this chapter shall prevent
any person from ferrying persons and property across any small stream
in time of high water, when, in the opinion of the board, such stream
is too small to justify a regular ferry.

§ 62. Forfeiture for not m AiNTAiNiNa.] Any and all pei^ons who
have heretofore received either permit, lease, grant, or charter in anv
form, either foom the legislative assembly, or any tribunal or board,
for the keeping of a ferry or ferries, of any kind, who shall neglect or
fail, during the period of one month, at any one time after the passage
of this or any prior act, to keep his or their respective ferry or ferries m
operation, for the safe transportation of persons and property over the
same according to law^ shall forfeit all the ferry rights, franchises, and
privileges, and all right, title or claim to the same, granted by or under
this law, or any former act as aforesaid; and upon due proof, made
before the board of county commissioners of the proper county, of such
£a.ilure or neglect, as afodfosaid, the said board are empowered and
authorized to declare sudx forfeiture absolute, and thereupon and
thereafter all the rights, franchises and privileges granted by or under
tlus law, «s aforesaidt^ shall cease and be of no force or effect in law or
equity.

OF ROAD BUPBRVI80RS.

§ 68. BoAB niSTRiCTB— SUPERVISORS.] At the annual meeting of the
county commissioners in January of each year, or as soon thereafter
as practicable, it shall be the duty of the board of county commission-
ers of each of the organisied counties of this territory, to apportion
their rei^ctive counties into one or more road districts, where such
county is not at present formed into townships, and shall appoint for ^
each diatrid; a road supervisor, who shall hold his office until the first ^
01 January succeeding his appointment, and shall take an oath to
faithfully discharge his duties m such road supervisor.

§ 64. VAOANOiBft] The board of county commissioners of each
county simll i^ave power to fill all vacancies, and shall fill all vacancies
that may occur for any reason in the office of road supervisor.

§ 65. Supeeyisor's nuTisa] The road supervisor of each road dis-
trict, or township, shall obtain the names and make out a list of all
male peirsons between the ages of twenty-one and fifty years, residing
within each road district which list shall be completed on or before
the first day of March in each year, and in case any person, as afore-
said, shall locate in any road distiict after the first day of March,
the supervisor shall enroll his name, and he shall be liable to labor on
the road at the same time and in the manner that those originally
enrolled are liable to labor, but any person who has labored that year
in any road district, and has a certificate thereof, shall be credited with

186 Highways, Bbidoes, Fsbbies, &o. Chapter 29.

the labor as performed, in the same manner as though the labor
had been performed in the district in which he resides.

§ 66. jUoad poll tax.] Every male person between the ages ot
twenty-one and fiffcy years, shall be subject to a poll tax of one dollar
and fifty cents, which must be paid in money or by one day^s labor, in
each year, on the public highway within his road district, at the
time and place directed by the road supervisor.
V »-i''^^'«\;%^8 67. SuPBEvisoES ORDER WORK DONE.] The road supervisors must
order out everv person subject to road labor as aforesaid, between
the first days of April and December, annually, to perform the work
necessary on the public highways within their respective road districts.

§ 68. Road tax worked — where.] Any roaa tax levied by the
board of county commissioners, in addition to the poll tax, may be
worked out in the road district in which such person resides, when it
is a personal tax, or a tax on personal property; or in the road district
where the real property is situate, on which the tax is levied, at the
rate, in all cases, of one dollar and fifty cents per day.

§ 69. Work certified for tax.] The roaa supervisor must obtain
a list of all the road tax assessed on each individual; and a certificate
by the supervisor for the amount worked out must be taken by tiie
treasurer or collector of the county in payment to that amount of
said tax.

8 70. Board how to expend tax.] The board of county commis-
sioners must order the expenditure of all road tax paid into the county
treasury in the improvement of the highways, paying the road super-
visors, purchasing implements, and repairing oridges, in each load
district, under such regulations as they may deem most expedient for
the public interest, and for this purijose shall order the payment of
such sum by the treasurer to the parties performing such labor upon
the certificate of the road supervisor; Provided, That such funds shall be
expended in the road district in which the person resides when it is a
personal tax, or a tax on personal property; and where the real estate
IS situate, where it is a tax on real estate.

§ 71. Obstrtjctions in highway.] It shall be^the duty of anjr road

supervisor having personal knowledj^ o^ or in being notified in

. writing of, any obstruction in the highway or public street in his

* district, to immediately remove, or cause to be removed, any su^

obstruction.

§ 72. Penalty for obstructing.] If any person or persons shall
willfully, carelessly or negligentlv, obstruct or injure any public high-
way, public street or briage, it shall be the dut^ of the road super-
visor of the district in which such obstruction is placed, or
injury done, to enter complaint in behalf of the people against the
person or persons so offending, before a justice of the peace of the
county; and, on conviction thereof, the fine so collected shall be im*
mediately paid over to the treasurer of the county for the benefit of
the common schools.

§ 73. Supervisor's report.] On or before the first Monday of Jan-
uary of each year, the several road supervisors shall each make a
report to the board of county commissioners of his doings as such
duriuR the preceding year, the amount of labor performed, the num-
ber of days* labor necessarily performed by himself in the discharge

Chapter 30.

Thx Militia.

187

of his duties; and the county commissioners shall thereupon cause a
warrant on the county treasury to be drawn in favor of such super-
visor for such services, at one dollar and a half per day, payable from
the common road fund belonging to said district in the county
treasury.

§ 74. Refusal to serve — penalty.] Every person who shall be
elected or appointed a road supervisor, according to the provisions of
this chapter, and shall fail, refuse, or neglect to qualify as such road
supervisor for thirty days after having been duly notified of his election
or appointment, by the county clerk, shall forfeit the sum of ten dollars,
to be collected upon a complaint made by any citizen before a justice
of the neace of the county, together with all the costs of the prosecu-
tion, which forfeitures shall go into the common road fund of the
district in which he resides.

CHAPTER XXX.

The Militia.

§ 1. Who compose militia.] All able-bodied male citizens,
residents of this territory, bein^ eighteen years of age and under the
age of forty-five years, exceptmg persons exempt oy law, shall be
enrolled in the militia^ and perform military duty in such manner, not
incompatible with the constitution and laws of the United States, as
hereinafter prescribed.

§ 2. Tebeitort— dTB division, command.] The territory shall
oottstitnte but one division, and shall be under the command of one
brigadier^neral and colonels, as the commander-in-chief may see
proper^ according to the census returns taken from time to time under
the authority of law.

9 a. GOVBBNOB^ OOMMANDSB-IN-OHIBF — 0FFI0EE8 APPOINTED.] The

governor of the territory shall be commander-in-chief, and shall have
power to appoint the brigadier-general, colonels, majors, and all the
commiflsioned officers necessary for the several regiments and com-
panies, and the captains of the several companies shall have power to
appoint all non-ocmimissioned officers of their respective companies.

§ 4. Shebiff make list of PERSONS.] It shall be the duty of the
shenff of each of the counties of this territory, when taking the census
of their respective counties, to make out a list containing tne names of
all the persons in their respective counties, liable to perform military
duty, and file a copy of such list with the register of deeds of the county,
to be by him kept as a matter of reference, and also to transmit to
the secretary of the territory a copy, to be by him kept as a matter of
reference in his office; which copies shall be filed in the offices of the
persons aforementioned, on or before the first day of January in each
year.

188 The Militia. Chapter 30.

§ 5. List — when taken.] The sheriff shall take a list of the
persons liable to perform military duty at the time of making the
assessment.

§ 6. When and how militia liable to duty — rules.] The militia
thus enrolled shall be subject to perform no active military duty, save
and except in case of war, invasion, or to prevent invasion, riot, or
insurrection. In such case, the commander-in-chief is hereby author-
ized to order out, from time to time, for actual service, as many of
the militia thus enrolled as necessity may require, and to provide for
their organization in the manner hereinafter prescribed for the organ-
ization of volunteer militia; Provided^ That in all such cases, the
enrolled volunteer militia shall first be ordered into service. The
militia, while in active service, shall be governed by the military law
of the territory, and the rules and articles of war of the United States;
and when any troops are in the field for the purposes aforesaid in this
section, the senior ranking officer of the troops present shall take
command; Provided, That no person shall be eligible to a command
in the militia of this territory except citizens of the United States, or
persons having declared their intention to become such.

§ 7. Volunteer militia.} The active miUtia of this territory shall
be composed of volunteer companies, raised by order of the comman-
der-in-chief within the limits of this territory. The volunteer militia
shall, in all cases of war, invasion, riot, or insurrection, be the first
military force ordered into the field.

§ 8. How COMPOSED.] Volunteer companies shall consist of men
between the ages of eighteen and forty-five; Provided^ No minor shall
be enrolled as a member of such volunteer company,, without the con-
sent of his parent or guardian*

§ 9. Companies, battalions and regiments eobmed — dbill.] When*
ever, according to the provisions of this act, forty men shall be
enrolled as members of a volunteer company of artillery, infiantry, light-
infantry, or rifle, or whenever thirty men shall be enrolled as members
of a volunteer company of cavalry, such companies shall be officered
by the commander-in-chief, as provided for in the third section of this
chapter. No company shall be increased to mdre than one hundred
members; and whenever a company becomes reduced to less than
twenty members, it may be attached to anotheo* company, or disbanded,
by order of the commander-in-chief; Provided, That whenever twenty
men shall be enrolled as members of a light artillery company, they
may proceed as provided in section three. When two such liffht adriillery
companies are organized in any brigade, they may be formea into a batr
talion, under the command of a major, and such subordinate officers as
the commander-in-chief shall direct; and whenever three such companies
of light ari^illery are organized in any brigade, they may be formed
into a battalion under the command of a lieutenant-colonel and
major, with such subordinate officers as the comm-^nder-iij-chief may
direct; and whenever five such light artillery companies exist in any
one brigade, they may, by order of the commander-in-chief, be formed
and organized into a regiment, with a full complement of regimental
officers. All such companies, battalions, and regiments of li^t artil-
lery, when organized, shall be armed and drilled, as near as practicable,

Chapter 30. Thb Mii^itia. 189

in accordance with the system of the United States army for like
organization.

8 10* CJoMFANiES NUMBXBED — RANK.] The Several volunteer com-
paiiies of cavalry, artillery, infantry, light infantry, and riflemen in
this territory shall be numbered by the proper commandant of the
brigade, and a record made of such number m his office, and in the
adjutant-general's office, and when they exist in sufficient numbers,
and are conveniently located for the purpose, shall be organized into
battalions and regimente, and officered as provided in section three of
this act. And in all cases of the same description of arms, and the
oldest organized uniform company, those first commissioned shall be
first and senior in rank, the next uniform company commissioned
second in rank, and so on to the junior oi^anized and commissioned
company, dating from the first commissions issued to the officers of
the company.

§ 11. Retubn by commandants — CONTENTS.] Evory commandant of
uiy volunteer independent company shall make a return of all non-
Gonunissioned officers, musicians, and privates under his command,
belonging to his company, and all the arms and accouisrements belong-
ing thereto, to the commandant of his regiment, squadron, or batalion ;
but, if his company does not form a part of any regiment, squadron, or
battalion, then he shall make return to the commandantof his brigade;
but in either case, shall make his return on or before the first day of
October in each year; and the commandants of each and every regi-
ment^ squadron, or battalion shall make return to the commandant of
brigade, on or before the first day of November, annually; and the
commandant of brigade shall return to the commander-in-chief, on or
before the first day of December in each year. All commandants
named in this act shall make return of all commissioned and stafi^
officers, non-commissioned staff officers,' all members of volunteer or
independent companies, all arms and accoutrements belonging to or
in possession of their commandants, and all such returns shall be pre-
served by the adjutant-general, in a book of records in his office; and
an abstract thereof, showing the number of uniform volunteer militia,
or active military of the territory, shall be by him forwarded to the
war department at Washington city.

§ 12. Term of service.] Every non-commissioned officer and soldier
of any volunteer company shall be held to duty therein for two years,
unless some absolute disability shall occur after forming such company,
or shall be discharged by the proper officer; and every such person,
after the expiration of said term, and every commissioned officer, after
serving a similar term, in conformity with the provisions of this act,
shall be entitled to a certificate of such service; and such certificate
shall be given to all such persons under the rank of brigadier-general,
by geneml of brigade, and if there be no brigadier, by officers of any
brigade in command; and the holders of such certificates shall be
.exempt from militalty duty in time of peace; Provided, That if any
officer or person shall knowingly grant, issue, or use any illegal certifi-
cate under the provisions of tlus act, such officer or person shall be
deemed guilty of misdemeanor, and subject to pay a penalty in amount
not less than five nor more than fifty dollars for each offense, to be
collected before any court having competent jurisdiction, and when

140 Thb Militia. Chapter 30.

collected, tyo be paid into the military fund in the county where the
offense was committed.

§ 13. Companies, oonbtitution and by-laws.} Each volunteer com-
pany, organized under the provisioois of this act, may adopt such
constitution and by-laws as a majority of such company may approve,
which shall be binding on all who sign the same; and when any fines
are assessed, by reason of any infraction of such constitution and by-
laws, such company may have process before any competent court of
jurisdiction, in the name of the United States, for the use of such
company, and prosecute to final judgment and execution all such fines
and penalties provided for by such constitution or by-laws; Provided,
That said constitution and by-laws are not inconsistent with the pro-
visions of this chapter, or the constitution of the United States, or the
act organizing the Territory of Dakota; Provided^ also^ That in no case
will the territory pay any costs of such prosecution.

§ 14. Military oommissions.] All the military commissions issued,
except the quartermaster-general, adjutant-general, paymaster-general
and aid-de-camp to the commander-in-chief, shall expire m two
years from the date thereof ; Provided^ That any offlcei; holding a com-
mission under the provisions of tiiis chapter, who may be reappointed
to the same office, shall retain the same rank as he was entitled to
under his former commission: Provided, also^ That nothing in this
chapter shall be so construed as to disqualify any staff offix^er orany offi*
cer of the line from holding a commission after he may have arrived
at the age of forty-five years; And further provided. That every officer
who sha3l remove out of the boun<is of his command, or who shall be
absent from his command without leave of the commanding officer of
his brigade, shall be considered as having vacated his office, and a new
appointment shall be made without delay, to fill the vacany so created;
Provided, That nothing in this' act shall be so construed or understood
as to prevent any appointed officer from being removed from his office
whenever, in the opinion of the officer appointing him, he shall deem
it advisable to remove him.

§ 15. Annual muster.] There shall be held, once in each year, a
brigade muster and encampment of all the volunteer militia in the
territory, commencing at ten o'clock a. m., and continuing not more
than four nor less than two days. Said muster and encampi&ent
shall be held at the most suitable place, to be selected by the com-
mandant of brigade, and the officers and soldiers forming such
encampment shall be drilled in accordance with the requirements of
the rules and usages of the United States army; and the commandant of
the brigade shall rive thirty days' public notice of the time and place
of such muster, which shall be held in the month of July, August, or
September.

§ 16. What entitles officer to cobcmand.J All officers appointed
according to the provisions of this chapter, shall be entitled to a cer-
tificate from the officer making such appointment, which certificate,
and taking the necessary oath, shall entitle such officer to^ command,
and to perform such other duties as may pertain to the office to which
he is appointed, until the commission can be procured; and in all cases,
the officers giving such certificate shall administer to such officer the
necessary oath of office, and indorse the same upon the back of his

Chapter 30. The Militia. * 141

certificate with the day and date on which such oath was administered;
Provided^ also^ That every staff officer who may be appointed shall also
be entitled to a certificate in like manner.

§ 17. Resignations.) For good cause shown, the commander-in-chief
may accept the resignation of brigadier-generals, and the brigadier-
general may accept the resignation of colonels, or the commandants
of regiments, lieutenant-colonels, maiors, captains and lieutenants;
and for good cause shown, the commandant of any regiment, squadron,
or battalion, shall accept the resignation of any regimental, squadron,
or battalion staff officer; Provided^ also, That the bngadier-general may
accept the resignation of his ste.ff officers; and in all cases when a
resignation is accepted^ the cause. of such resignation shall be indorsed
by me officer accepting the same, on the back of the commission so
resigned; but the command of such officer shall not cease until the
officer accepting such resignation shall have indorsed his acceptance.

§ 18. Staff officers appointed.] To each brigade there shall be
one brigade major — ^to serve as brigade inspector— two aids-de-camp,
one brigade ouartermaster, one brigade engineer, one bri^de judse
advocate, one brigade surgeon, and one brigade chaplain, which brigade
staff shall be appointed by the commander4n-chie£ To each regiment
or battalion of artillery, rifle^ light infantry, or infantry, there may be
one chaplain, one adjutant, one quartermaster, one surgeon, one sur-
geon's mate, one sergeant-major, one quartermaster-sergeant, one
drum^^aotajor, and one fiie-major^ to be appointed by the commandant
of such regiment or battalion. To each regiment or battalion of cavalry
I there 1 shall be one adjutant, one quartermaster, one paymaster, one
surgeon, one surgeon's mate, one quartermaster-sergeant, one sergeant-
major, and two regimental or squadron buglers, which shall be
appointed by the commandant of such raiment or squadron.

§ 19. Staff opticbrs rank.] The staff officers herein enumerated
shall rank as follows, namely: The quartermaster-general and adju-
tant-general as brigadierrgenerals; the paymaster^general, engineer-
in-chief, judge advocate general, and aids-de-camp to the commander-
in-chief, as colonels; the aids-de-camp to brigadier-generals, chaplains
and surgeons, as captains; company ensign, adjutants, quartermasters,
paymasters^ surgeon's mates of regiments, battalions, and squadrons,
as lieutenants; and all other regimental or squadron staff, as non-
conunissioned officers.

§ 20. Officbb's ui^iform.] The uniform of the respective officers
herein mentioned shall be the same as the uniform of the officers in
the United States army;

§ 21. Of company kubtbrs.] Each company shall muster as often
as twice in each yean independent of the general muster.

§ 22. Offiobr to take oath.] Each officer, before he enters upon
the discharge of his duty, shall take and subscribe an oath te support
the constitution of the United States, the provisions of this chapter,
and the act organising the Territory of Dakota, and to faithfully and
impartially discharge his duty to the best of his ability.

§ 23. Officers and privates tried-t-hom^.J Officers and privates
shall be tried for misdemeanors and offenses in the same manner as
provided in the army regulations of the United States.

^ I

142 SfiNBS AND Mining. Chapter 31.

CHAPTER XXXI.

lOi^tf^o^ ' Mines and Mining.

LOCATION AND SIZE OF LODES AND MINING CLAIMS.

§ 1. Length of lode.] The length of any lode claim hereafter
located within this territory, may equal, but shall not exceed, fifteen
hundred feet along the vein or lode.

§ 2. Width of lode.] The width of lode claims shall be one hund-
red and fifty feet on each side of the center of the vein or crevice;
Provided^ That any county may, at any general election, determine
upon a greater width not exceeding three hundred feet on each side of
the center of the vein or lode, by a majority of the legal votes cast at
said election, and any county, by such vote at sucm election, may
determine upon a less width than above specified; Provided, That not
less than twenty-five feet on each side of the vein or lode shall be
prohibited.

§ 3. DisoovBBBB TO BBooBD HIS 0LAIM.1 That the discoverer of a
lode shall, within twenty days from the aate of discovery, record his
claim in the office of the register of deeds of the county in which such
lode is situated, by a location certificate, which shall contain x!t9b<^«\1>i

1. The name of the lode. . ^

2. The name of the locator. ^ U ^OirXj^

3. The date of location.

4. The number of feet in length claimed on each side of the dis-
covery shaft.

5. The number of feet in width claimed on each side of the vein or
lode.

6. Thegeneral course of the lode, as near as may be.

§ 4. When certificate void.] Any location certificate of a lode
claim which shall not contain the name of the lode, the name of the
locator, the date of location, the number of lineal feet claimed on
each side of the discovery shaft, the number of feet in width claimed,
the general course of the lode, and such description as shall identify
the claim with reasonable certeinty, shall be void.

§ 5. Manner of locating claim.] Before filing such location cer-
tificate the discoverer shall locate his claim by first sinking a discovery
shaft thereon sufficient to show a well defined mineral vein or lode;
second, by posting at the point of discovery, on the surface, a plain
sign or notice containing the name of the lode, the name of the
locator, and the date of discovery, the number of feet claimed in
length on either side of the discovery, and the number of feet in width
claimed on each side of the lode; third, by marking the surface boun-
daries of the claim. <^*9 ^ bL <S^% \

§ 6. Marking surface boundaries.] Such surface boundaries shall
be marked by eight (8) substantial posts, hewed or blazed on the side
or sides, facing the claim, and sunk in the ground, to wit: One at

I

Chapter 31. Mines and Mining. 143

each comer, and one at the center of each side line, and one at each
end of the lode. When it is impracticable, on account of rock or
precipitous ground to sink such posts, they may be placed in a monu-
ment of stone, t5lju * ? fe *** * fV^ V

§ 7. Rbqxjisite of location.] Any open cut, cross cut, or tunnel, at
a depth sufficient to disclose the minersQ vein or lode, or an adit ot at
least ten (10) feet in along the lode, &om the point where the lode
may be in any manner discovered, shall be equivalent to a discovery
shaft.

§ 8. Time discovbbsb has to perform labor.] The discoverer shall
have thirty days from the time of uncovering or disclosing a lode, to
sink a discovery shaft thereon. cU . 9b^* JL^\

§ 9, Certificate construed to contain.] The location or location
certificate of any lode claim shall be construed to include all surface
ground within the surface lines thereof, and all lodes and ledges
throughout their entire depth, the top or apex of which lie inside
of sucn lines extended vertically, with such parts of all lodes or ledges
as continue, by dip be vond the ^¥le l^neat^f'the claim, but shall not
include any portion of such lodes or leages beyond the end lines of
the claim or the end lines continued, whether by dip or otherwise, or
beyond the side lines in any other manner than by the dip of the lode.

1 10. Claim not beyond exterior lines.] If the top or apex of the
lode in its longitudinal course extends beyond the exterior lines of the
claim at any point on the surface, or as extended vertically downward,
such lode may not be followed in its lon^tudinal course beyond the
point where it is intersected by the exterior.

§ 11. Claims subject to right of way.] All mining claims now
located, or which may be hereafter located, shall be subject to the
right of way of any ditch or flume for mining purposes, or of any
tramway or pack-trail which is now in use, or which may be hereafter
laid out across any such location; Provided always, That such right of
wav shall not be exercised against any location duly made and recorded,
and not abandoned prior to the establishment of the ditch, flume,
tramway, or pack-trail, without consent of the owners except by
condemnation, as in case of land taken for public highways; parol con-
sent to the location of any such easement, accompanied by the com-
pletion of the same over the claim, shall be sufiicient without writing;
And provided further J That such ditch or flume shall be so constructed
that the water from such ditch or flume shall not injure vested rights
by flooding or otherwise.

§ 12. Owner may demand security from miner.] When the right
to mine is in any case separate from the ownership or right of
occupancy to the surface, the owner or rightful occupant of the sur-
face may demand satisfactory security from the miner, and if it be refused
may enjoin such miner from working until such security is given. The
order for injunction shall fix the amount of bond.

§ 13. Filing an amended certificate. If at any time the locator
of any mining claim heretofore or hereafter located,' or his assigns,
shall apprehend that his original certificate was defective, erroneous,
or that the requirements of the law had not been complied with
before filing, or shall be desirous of chan^ng his surface boundaries,
or of taking in any part of an overlapping claim which has been

144 Mines and Mining. Chapter 31.

abandoned, or in case the original certificate wa^s made prior to the
passage of this law, and he shall be desirous of securing the benefit of
this act, such locator, or his assigns, mav file an additional certificate
subject to the provisions of this act; rr&videdy fThair such relocation
does not interfere with the existing rights of others at the time of
such relocation, and no such relocation or the record thereof shall pre-
clude the claimant or claimants from provins any such title or
titles as he or they may have held under previous locations.

§ 14. Work performed annually.] The amount of work to be
done or improvements made during each year to hold possession of a
mining claim, shall be that prescribed by the laws of tiie United
States, to wit: One hundred doihirs annually. OiK.^^*^A^ I

§ 15. Affidavit op labor to be made.] Within six months after
any set time or annual period herein allowed for the performance of
labor or making improvements upon any lode claim, the person ou
whose behalf such outlay was mstde, or some person for nim, shall
make and record an affidavit in substance, as follows: .

Tbrbitoey of Dakota, \
County of ) *"

Before me, the subscriber, personally appeared ! , who being duly sworn,

says at Ifeast doUars* wortn of work or improyementB were performed or made upon

(here describe claim or claims, or part thereof,) prior to the « .day of , A. D. 18. .,

situate in mining district, county of , Territory of Dakota. Such expenditure

was made by or at the expense of , owner of said claim, for the purpose of holding

said claim.

(Jurat.) (Signature.)

And such certificate, when recorded in the office of the register of
deeds of the county wherein such claim is located, shall be prima
facie evidence of the performance of such labor.

§ 16. Relocating abanponed claims.] The relocation of abandoned
loae claims shall be by sinking a new cliscovery shaft, and fixing new
boundaries, in the same manner as if it were the location of a new
claim, or the relocator may sink the original shaft, cut or adit to a
sufficient depth to comply with sections five and seven of this chapter,
atid erect new or adopt the old boundaries, renewing the postp if
removed or destroyed. In either case, a new location stake shall be
erected. In any case, whether the whole or part of an abandoned
claim is taken, the location certificate must state that the whole or
any part of the new location is located as abandoned property.

§ 17. One certificate, one location.] No location certificate shall
claim more than one location, whether ilie location be made by one or
several locators; and if it purport to claim more than one locatioia, it
shall be absolutely void^ except as to the first location therein
described; and if they are described together, or so that it cannot be
told which location is first described, the certificate shall be void
as to all.

§ 18. Fee for recording.] The register of deeds 3hall be entitled
to receive the sum of one dollar for each location certificate recorded
and certified by him, and shall furnish the locator or locators with a
certified copy of such certificate when demanded, for which he shall
be entitled to receive fifty cents.

Chapter 31. ' Mines and Mining. 14:5 '

DISPUTED MINING PROPERTY.

•

§ 19. Judge may order survey of mine — limitations.] In all
actions in any district court of this territory, wherein the title or
right of possession to an/ mining clahn shall be in dispute, the said
court, or the judge thereof, may, upon application of any of the
parties to such suit, enter an order for the underground as well as
surface survey of such part of the property in dispute as may be
necessary to a just * determination or the question involved. Such
order shall designate some competent surveyor, not related to any of
the parties to such suit, or in anywise interested in the result of the
same; and upon the application of the party adverse to such application,
the court may also appoint some competent surveyor, to be selected by
sudi adverse applicant, whose duty it shall be to attend upon such sur-
vey, and observe the method of making the same; said second survey to
be at the cost of the party asking therefor. It shall also be lawful in
such order to specify the names of witnesses named by either party,
not exceeding tnree on each side, to examine such property, who shall
be allowed to enter into such property and examine the same; such
court, or the judge thereof, may also cause the removal of any rock,
debris, or other obstacle in any of th^ drifts or shafts of said property,
when such removal is shown to be necessary to a just determination
of the question involved; Provided^ however, That no such order shall
be made for survey and inspection, except in open court or in cham-
bers, upon notice of application of such order of at least six days, and
not then except by agreement of parties, or upon the affidavit of two
or more persons that such survey and inspection is necessary to the
just determination of the suit, which affidavits shall state the facts in
such case, and wherein the necessity for survey exists: nor shall such
order be made unless it appears that the party asking therefor had
been refused the privilege of survey and inspection by the adverse
partv.

§ 20. Judge to issue writs of injunction.] The district courts,
or any judge thereof, sitting in chancery, shall have, in addition to
the power already possessed, power to issue writs of injunction for
affirmative relief, having the force and effect of a writ of restitution,
restoring any person or persons to the possession of any mining property
from which he or they may have been ousted by force and violence, or
by fraud, or from which they are kept out of possession by threats, or
whenever such possession was taken from him or them by entry of the
adverse party on Sunday, or a legal holiday, or while the party in pos-
session was temporarily absent therefrom. The granting of such writ
to extend only to the right of possession under the facts of the case,
in respect to the manner in wnich the possession was obtained, leav-
ing the parties to their legal rights on all other questions as though
no such writ had issued.

10

146 Loos AND LuMBi^R. * Chapter 32.

CHAPTER XXXII.

Logs and Lumber.

§ 1. Lawful to boom loos in nayioablb BivBRa.] It shail be lawful
for any person haying logs or lumber in any stream navi^ble for
water crafts, in this territory, to boom such logs or lumber along the
shore and to secure the boom by means of piles driven in the stream,
or by chains, ropes, timber or traverse poles made fast at points alonR
the shore; Providedy That there shall be at all times sufficient channel
left clear for the free passage of any crafts or rafts usually nav%ating
such streams.

-r

CHAPTER XXXIII.

Police of the Territory.

OP THE SETTLEMENT AND SUPPORT OF THE POOR.

§ 1. County commissioners overseers.] The county commissioners
of the several counties of this territorv shall be the overseers of the poor
within their several counties, and shall perform all the duties with
reference to the poor within their respective counties, that may be
prescribed by law.

§ 2. How DESIGNATED.] That every board of county commissioners
shall, in discharging the duties imposed by this act, be designated as
overseers of the poor.

§ 3. Suits against.] In all suits or proceedings in favor of or
against any such overseers of the poor, pertaining to or connected with
the poor of their respective counties, the same snail be conducted in
favor of or against such county in its corporate name.

§ 4. Every county shall relieve its poor.] Every county shall
relieve and support all poor and indigent persons lawfully settled
therein, whenever they shall stand in need thereof, and the board of
county commissioners may raise money for the support and employ-
ment of the poor in the same way and manner as in the nineteenth
section of this act is provided.

§ 5. Legal settlements acquired- married women and children.]
Legal settlements may be acquired in any county, so as to oblige such
county to relieve and support the persons accjuiring such settlement,
in case they are poor and stand in need of relief, as follows:

Chapter 33. Policob of the Tbeeitoby. 147

1. A married woman shall always follow and have the settlement
of her husband, if he have any within the territory, otherwise her
own at the time of her marriage, and if she then had any settlement
it shall not be lost or suspended oy the marriage; and in case the wife
shall be removed to the place of her settlement, and the husband shall
want relief he shall receive it in the place where his wife shall have
the settlement.

2. Legitimate children shall follow and have the settlement of their
father, if he have any within the territory, until they shall gain
a settlement of their own, but if the father have no settlement,
they shall in like manner follow and have the settlement of their
mother, if she have any.

3. Illegitimate children shall follow and have the seittlement of
their mother, at the time of their birth, if she then have any within
this territory; but neither legitimate nor illegitimate children shall
gain a settlement by birth in the place where they were born, unless
their parent or parents had a settlement therein at the time.

4. Every male person and every unmarried female over the age of
twenty-one years, who shall have resided in any county in this territory
liinety days, shall thereby gain a settlement in SBch county.

5. Every minor whose parents, and every married woman whose
husband has no settlement in this territory, who shall have resided
ninety days in any county in this territory, shall thereby gain a settle-
ment in such county.

6. Every minor who shall be bound as an apprentice to any person,
shall, immediately upon such binding, if done in good faith, thereby
gain a settlement where his or her master or mistress has a settlement.

7. Every settlement when once legally acquired, shall continue until
it shall be lost or defeated by acquiring a new one in this territory, or
by willful absence from the county in which such legal settlement
had been obtained, for ninety days or more, and upon acquiring a new
settlement, or upon the happening of such willful absence, all former
settlements shall be defeated and lost; and the provisions of this sec-
tion shall apply to cases of settlements begun to be acquired, or lost,
or defeated, as well heretofore as after.

§ 6. OvEESEBBS HAVE OARE OF POOR.] The overseors of the poor in
each county shall have the oversight and care of all poor persons in
their county, so long as they remain a county charge, and shall see
that they are properly relieved and taken care of in the manner pro-
vided by law.

§ 7. Duty of overseers.] It shall be the duty of the overseers of
the poor, in counties wherein no common poor house is established,
two weeks next preceding the first Monday of April in each year, to
give public notice, by having i)ublished in the newspaper or news-
papers in their respective counties, or in case no such newspaper is
published in the county, by posting upon three public places in the
county, an advertisement certifying the poor that are to be provided
for, and asking for sealed proposals for their maintenance during the
coming year, which sealed proposals shall be opened and acted on by
said overseers of the poor, at their regular meeting beginning on the
said first Mondav in April; but nothing herein contained shall prohibit
any overseers of the poor from receiving and accepting propositions

148 PoLiOB OF THE Teemtory. Chapter 33.

at any time, for the keeping of such poor persons as may in the interim
become a county charge, or of rejecting the propositions of such
persons as they know to be unable to fulfill their obligations to the
said poor.

§ §. Commissioners may allow and pay in their biscretion.] The
board of county commissioners may, in their discretion, allow and
pay to poor persons who may become chargeable as paupers, and who
are of mature years and sound mind, ana who, from their general
character, will probably be benefitted thereby, and also the parents of
idiots, and of children otherwise helpless, requiring the attention of
their parents, and who are unable to provide for said children them-
selves, such annual allowance as will not exceed the charge of their
maintenance in the ordinary mode, the said board taking the usual
amount of charges in like cases as the rule for making such allowance.

§ 9. Duty of, on complaint.] It shall be the duty of said overseers
of the poor, on any complaint made to them in behalf of the poor, to
examine into the grouna of such complaint; and if in their judgment,
the said poor have not been sufficiently provided with the common
necessaries of life, or have in any respect been ill treated by the ^
person or persons under whose charge they shall have been placed, to '
withhold any part of the compensation allowed to such person or
persons keeping them, as such overseers may deem reasonable and
proper, and remove said poor and place them in the care of some
other person.

§ 10. Poor book.] The overseers of the poor shall enter in the poor
book of their respective counties, all poor persons in their counties
who are unable to care for themselves, and who shall, in their judg-
ment, be entitled to the benfefit of the provisions of this act, together
with the date of such entry.

§ 11. Appeal to district judge.] If any poor person shall suppose
that he or she is entitled to the benefit of the laws for the relief oi the
poor, and the overseers of the poor of the county in which he or she
resides, shall refuse to give such person the benefit thereof, upon appli-
cation of such person, the judge of the district court of the county or
judicial subdivision may, it he shall think proper, direct the said over-
seers of the poor to receive him or her on the poor list, on his or her
application therefor.

§ 12. When settlement uncertain.] If any one within the
description of poor persons spe*cified in this act, shall be found in any
county, and the overseers of the poor of such county shall be unable
to ascertain and establish the last place of legal settlement of such
person, they shall proceed, in their discretion, to provide foi* such poor
person in the same manner as other persons are hereby directed to be
provided for.

§ 13. Temporary relief to certain poor.] Wheinever any person
entitled to temporary relief as a pauper, shall be in any county in
which he or she has not a legal settlement, the overseers of the ^or
thereof may, if the same is deemed advisable, grant such relief, by
placing him or her temporarily in the podr house of such county, if
there be one, but if there be no poor house, then they shall provide
the same relief as is customary in cases where a legal settlement has
been obtained.

Chapter 33. Police of the Tereitoey. 149

§ 14. Justice of peace may issue wareant.] Upon complaint of
any overseer of the poor, any justice of the peace may issue nis war-
rant, directed to and to be executed by any constable, or by any other
person therein designated, to cause any poor person found in the
county of such overseer, likely to become a public charge, and having
no legal settlement therein, to be sent, and charged at the expense of
the county, to the place where such person belongs, if the same can be
conveniently done; but if he or she can not be removed, such person
shall be relieved by said overseers whenever such relief is needed.

§ 15. When poor person feels aggrieved- proceedings.] If the
overseers of the poor of any county in this territory, to which any
pauper shall have been removed, as above provided, shall feel them-
selves aggrieved by such order of removal, they may, at any time
within twenty days after such removal shall be known to them, appeal
from the decision of the justice ordering such removal, to the district
court of the county or judicial subdivision from whence the removal
was ordered to be made, such appeal to be taken, tried, and deter-
mined, and costs adjudged, as in other cases of appeal from a judg-
ment of a justice of the peace, and the order of removal may be vacated
or aflB.rmea according to the law and right of the case.

§16, Appeal-how HEAED.] Such appeal shall be heard at the
term of the court next after the same is nled therein, if, in the opinion
of the court, reasonable notice of the appeal has been given to the
opposite party; but, if not thus given, the cause shall stand continued
until the next term of the court, and notice of the appeal be then given,
if not before done.

§ 17. When oedee is defective.] If the order of removal is defect-
ive, the court shall permit the same to be amended without costs, and
after such amendment is made, the appeal shall be heard and deter-
mined as if such order had not been defective.

§ 18. When removed.] If any person be removed by virtue of the
provisions of this chapter, from any county, to any other place within
this territory, by warrant or order under the hand of any justice of
the peace, as hereinbefore provided, the overseers of the poor of the
county to which such person shall be removed, are required to receive
such nerson if he have a legal settlement in their county.

§ Is. Overseers shall make a return to clerk.] The overseers of
the poor shall make a return to the clerk of the board of county com-
missioners of the sums of money required for the poor of their respect-
ive counties, within fifteen days after every such contract hereinbefore
provided for shall have been made, which sums shall be paid Quarterly
out of the county treasury, upon the order of the board oi^ county
commissioners, in the same manner as othei* claims of the county
are paid.

§ 20. Pay of overseers.] The overseers of the poor in each county
shall be entitled to receive each two dollars per day for each and every
day during which they shall be necessarily employed in the discharge of
their several duties as such, to be allowed by tne board of county com-
missioners.

§ 21. Shall submit accounts when.1 The overseers of the poor of
the several counties, shall annually, at tne first session of the board of
county commissioners in the year, submit their accounts and make

150 Police of the Territory. Chapter 33.

report of their proceedings for the past year, which report shall be pre-
sented to the clerk of the board of county commissioners at least one
day prior to the meeting of said board, and said board may then credit
and allow said accounts so presented, and may draw on the county
treasurer therefor, whose duty it shall be to pay the same out of any
money in the county treasury not otherwise appropriated.

§ 22. When non-resident is sick or dies.] It shall be the duty
of the overseers of the poor, on complaint made to them that any
person, not an inhabitant of their county, is lying sick therein, or in
distress, without friends or money, so that lie or she is likely to suflFer,
to examine into the case of such person, and grant such temporary
relief as the nature of the same may require; and if any person shall
die within any county, who shall not have money or means necessary
to defray his or her funeral expenses, it shall be the duty of the over-
seers of the poor of such county to employ some person to provide for
and superintend the burial of such deceased person, and the necessary
and reasonable expenses thereof shall be paid by the county treasurer
upon the order of such overseers.

§ 23. Special election to purchase astlum.] It shall be lawful
for the board of county commissioners in the several counties of this
territory, after having submitted the question to the legal voters of
their counties, by calling a special election for the purpose, whenever
the said commissioners may deem it advisable, and if at said election
a majority of the legal voters shall vote in favor of the proposition to
purchase a tract of land in the name of their respective counties, and
thereon to build, establish, and organize an asylum for the poor, and to
employ some humane and responsible person or persons, resident in
their respective counties, to take charge of the same upon such terms
and under such restrictions as the board shall consider most advanta-
geous for the interests of the county, who shall be called ^* superin-
tendent of the county asylum," and when two or more counties shall
have jointly purchased any tract of land and erected an asylum for
the poor of their respective counties, they shall have the power to
continue such joint ownership during their pleasure; and it shall be
lawful for the county commissioners of two or more counties, after
having been so authorized by a majority of the legal voters of their
respective counties, in the manner prescribed in this section, to
jointly purchase lands and erect asylums, and to do other things
necessary and proper for the relief of the poor within the counties
forming such joint ownership as is by this act provided for their
respective counties.

§ 24^ Duty of superintendent.] It shall be the duty of such super-
intendent or superintfendents, to receive into his or their care and
custody all persons who may become a county charge, as paupers,
and to take such measures for the employment and support of such
paupers, and to perform such other duties as the board of county com-
missioners shall, from time to time, order, establish, and direct, con-
sistent with the laws of this territory.

§ 25. Shall appoint a physician — compensation.] It shall be the
duty of the county commissioners to appoint, annually, a well quali-
fied physician to attend the county asylum, and allow him a reason-
able compensation for his services.

?

Chapter 93. Police of the Tereitory. 151

§ 26, To KIND OUT POOR CHILDRBN.] It shall be the duty of the over-
seers of the poor of the different counties, and also of the superintend-
ents of the county asylums, to bind out such poor children as fall under
their care and charge, from time to time; and it shall also be the duty of
said overseers to see that children so bound be properly treated by the
persons to whom they are bound, and to take legal means of redress
m case of maltreatment.

§ 27. Board assess tax to purchase poor farm.] To raise the sum
necessary for the purchase of land, and the erection and furnishing of
buildings for such asylums, the board of county commissioners in the
several counties shall have power to assess a tax on property liable to
taxation for raising a county revenue, not exceeding five hundred
dollars, unless the amount of taxes to be assessed shall be submitted to
a vote of the people at the special election held pursuant to section
twenty-three oi this act, and a majority of all the votes cast at said
poll be in favor of such assessment.

§ 28. All poor oo to asylum.] So soon as the necessarv provisions
may be made by the erection of suitable buildings, the said board shall
direct and order that all persons who have become permanent charges
as paupers in the county, be removed to such asylum, and shall
take such measures for the employment and support of such paupers
as they may deem advisable, and thereafter the overseers of tne poor
shall, from time to time, as persons may become permanent charges
as paupers to their respective counties, have such persons removed to
the said asylum.

§ 29. Superintendents oive bond.] Such superintendent or super-
intendents shall give bond, with freehold security, to said board, in
the penalty of five hundred dollars, conditioned for the faithful dis-
charge of his or their duty, and he, or they, shall make to such board,
at the first and third sessions of each year, a detailed report in writing,
of the time and manner of the admission of each pauper, their healui
and fitness to labor, the results of their industry, and the expenses
incurred; and it shall be the duty of the members of such board, in
person, to annually inspect said asylum with regard to its fitness, in all
respects, for the objects of its establishment.

§ 30. Children to be educated.] Whenever it shall be necessary
and practicable, poor children of the asylums, who cannot be bound
out, or whom it may not be expedient to bind out as apprentices, shall
be educated thereat.

§ 31. Superintendence thereof.] It shall be the duty of the
superintendent or superintendents of any asylum, erected or established
by law, to superintend and direct the education of such poor children,
according to the preceding provisions of this act, and for the purpose
of carrying the same into effect, with the least possible expense, it snail
be the duty of the said superintendept to send tj^^em to any common
school withmHi^e^cbunty in whifeh the asylum is situated, during the
contiiiuahc6 dt'its session.

§ 32. Discontinuance of asylum.] Any asylum or farm, provided
by the board of county commissioners for the purpose, may be discon-
tinued by said board, and the property, real and personal, relating
thereto, which belongs to the county, may be sold, leased or otherwise
disposed of^ or applied in such manner as may be best for the interests
of the county.

152 Police of thb Tsbutobt. Chapter 33.

§ 33. BoABB MAY LEVY POOE TAX.] The boatd of county commis-
sioners may, in the several counties, if they deem it expedient,
annually, at their session at which the county tax is ordfered to be
levied and assessed, levy and assess a tax for the support of the poor
of their respective counties, on objects from which the county revenue
is or may be directed to be raised. The tax hereby authorized to be
raised shall be collected by the same officers whose duty it may be to
collect the territorial and county revenue, who shall pay the same
into the county treasury.

§ 34. Appeals from justice of peace.) All decisions of any justice
of the peace, in any matter, proceeding or suit authorized by this law,
may be appealed from in luce manner, and under like regulations
and. restrictions of law, as in other cases.

§ 35. BoABD appoints visitors.] The board of county commis-
sioners may, in their discretion, appoint a board of visitors annually,
to consist of three persons, residents of the county, to visit at least
once in each year the asylum of such county, and to report to the
commissioners its condition, and the treatment, management, and
condition of the inmates thereof

§ 36. Compensation.] Such visitors shall receive such compensation
as the said board shall adjudge reasonable.

§ 37. Sending pauper out of county unlawful.] It shall be unlaw-
ful for any person, either directly or indirectly, to send, or be instru-
mental in sendinff, or causing to be sent, out of the county where such
Eerson properly belongs, any pauper, or person who is, or is likely to
ecome, an object of public chanty, into any other county of this
territory, except in the manner provided for in this chapter.

§ 38. Penalty.] Any person who shall violate the provisions of
the preceding section, shall be deemed guilty of a misdemeanor, and
shall be liable to a fine of not exceeding one hundred dollars, or
imprisonment in the county jail not exceeding one year, or by both
such fine and imprisonment.

bringing paupers into a county.

•

I 39. Penalty for bringing in paupers.] Every person who shall
bring into and leave any pauper in any county wherein such pauper
is not lawfully settled, knowing such person to be a pauper, shall for-
feit and pay the sum of one hundred dollars for every such offense, to
be sued for and recovered by and to the use of such county, by an
action in the name of the county; and no property shall be exempt
from seizure and sale in such cases, and it shall be the duty of the
board of county commissioners of the several counties to institute
suits for all violations of this section; and any such sum, when col-
lected, shall be paid into the county treasury for the use of the county.
. 6K^Xi^'-K\^ cJU*i>^^-\Ai di-AVA.iV3\

CjU,'i ^ . ^\1 ^ ^^ '^^^^ ^^^^ ^^ '™^ insane, v^ ^ a t* ,*^j

§ 40. Governor contracts for cabe.1 The governor of this terri-
tory is authorized, and it is hereby made his duty, from time to time,
to enter into contract with the States of Minnesota, Iowa, or Nebraska,
or either of them, as in his judgment will be most economical and
advisable, for the keeping, maintaining, treating, and the custody and

Chapter 34. Domsstio Anikals. 153

care in an asylum in one of said States, of persons declared lunatics,
from this territory.

§ 41. TxBRiTOEiAL ASYLUM.] After such contract is made with the
proper authorities of such state, the asylum of such state with which
such contract is made, shall be the insane asylum for this territory, and
any person who, under the provisions of any law now in force, or that
may be hereafter enacted, shall be declared or adjudged a lunatic, or
insane, and a proper subject for confinement in a lunatic asylum, may
be, by the proper officer or person, by direction of the lawful authority,
taken to and confined in such asylum, the same as though such asylum
were located within this territory.

§42. All past and puturb accounts territorial charge.] It
shall be the duty of the auditor of this territory to audit all accounts
having accrued under the provisions of law for the keeping and care
of lunatics, or that shall accrue for taking to confinement in, and
carina for lunatics in, the insane asylum for the territory.

§ 43. Verification op accounts.] Such accounts shall be verified
by the owner thereof, and approved by the probate court by whose
order the person was confined, for whose keeping the charge is made ;
Providedy That persons who are so confined, that have estates, such
estates shall be liable for their keeping.

§ 44. Probate judge decides sanity,] Upon the filing of a verified
petition in the office of the jud^e of probate, setting forth that any
citizen of that county is insane, it shall be his duty to investigate the
matter at once, as directed by law, and, if adjudged insane, the court
may order that such person be confined in the insane asylum.

CHAPTER XXXIV.

Domestic Animals.

tU^i ^* Ai^\ MARKS AND BRANDS. tJk.U ol.^^N

§1. Record OF MARKS and brands.] It shall be the duty of the
register of deeds of each county, upon application of any person resid-
ing in such county, to record a description of the marks or brands,
witti which such person may be desirous of marbing his horses, cattle,
sheep or hogs; but the same mark or brand shall not be recorded for
more than one resident of the same county.

§ 2. Using beoordbd hark — penalty.] If any person shall will-
fully mark any of his horses, cattle, sheep or hogs with the same mark
or brand previously recorded by any resident of the same county, and
while the same mark shall be used by such resident, the person so
offending shall forfeit for every such offense the sum of five dollars,
to be recovered before any justice of the peace of such county. If
any person shall willfully mark or brand the cattle, horses, sheep, or
hogs of any other person, with his own mark or brand, the person so

154 Domestic Animals. Chapter 34.

offending shall forfeit, for every such offense, not less than ten nor nK>re
than fifty dollars; and if any person shall willfully destroy or alter any
mark or brand upon any horse, cattle, sheep, or hog, belonging to
another, the person so offending shall, upon conviction thereof, forfeit
and pay for every such offense, a sum not less than ten nor more than
fifty dollars, and shall, in addition, pay to the party injured double
damages, and the costs.

, OF E8TRAY8.

§ 3. EsTRAYs TAKEN BY RESIDENT ONLY.] No persou shall take up
an estray animal except in the county wherein he or she resides, and
is a householder, or holds a claim under the pre-emption or homestead
laws, nor unless the same be found in the vicinity of his or her claim
or place of residence; Provided^ That this shall not be so construed as
to prevent taking up of any estray found in the uninhabited parts of
this territory, and at a distance of ten miles from any habitation.

§ 4. Limitation in time.] No person shall take up any estruy
animal mentioned in the next section, between the first day of October
and thirty-first day of March inclusive, unless the same be found tres-
passing upon the premises or within the inclosure of the person tak-
ing up the same.

§ 5. Publishing estray notice.] Every person who shall take up
any estray horse, mare, colt, mule, ass, or any head of neat cattle,
sheep, hog, or goat, shall, within fifteen days thereafter, give notice of
the finding and taking up of such animal, by posting a written
advertisement thereof, with a description of such estray, and the
marks and brands thereon, in three public places in the county wherein
he resides, or by publishing such advertisement three times in a weekly
newspapiBr, if there is a newspaper published in the county in which
the estray is taken up, and if the same be not called for or claimed by
any person within tweiity-two days after the posting of such notice,
or within three weeks after ttie first insertion of such notice in a news-
paper, the person taking up such estray' animkf slfeill ^c^befiort som^.
justice of tne peace of the county wherein he resides, and make oath
that such animal was found estray by him, and the place where the
same wa^ found,, tjijbt.tiie marks and brands thereon h^vi^ noif peen
effaced or altered by him since the taking up, and that he " nath duly
advertised the same as required by law;^ every such affidavit shall be
made and subscribed in the docket of such justice and shall be
sufficient proof of the advertisement of such estray as herein required.

§ 6, Justice's appraisement jury.] Such justice, of the peace shall
thereupon issue his warrant to three disinterested householders of* the
county, unless their attendance may be otherwise had, commanding
them to attend at such place as may be therein mentioned, to appraise
such estray; the appraisers so appointed, or any two of them, shall
thereupon proceed to appraise such estray, and, upon the completion
of such appraisement, shall attend before the justice and report their
appraisement in writing, to be subscribed and sworn to by them,
setting forth a description of the estray appraised, the marks and
brands thereon, the name and place of residence of the person taking
the same up, and that the appraised value of such estray ia a fair ana

Chapter 34. Domestic Animals. 155

true valuation thereof, and the justice shall thereupon enter such
certificate in his docket.

§ 7. Justice publishes' dbsceiption.] Upon the completion of such
appraisement as aforesaid, the justice of the peace before whom the
appraisement is had, shall forthwith post in three of the most public
places in his county, or publish three times in a newspaper, if there is
a newspaper published in the county, a notice of the taking up of such
estray, with a description thereof, and of the marks and brands theleon,
and the name and place of residence of the person taking up the
same.

§ 8. Report to register.] Such justice shall also transmit a copy
of such affidavit or certificate of the appmsers, certified by him to be a
true copy from his docket, to the register of deeds of his county, within
ten days after the completion of such appraisement.

§ 9. Record op appraisement.] Every register of deeds upon receiv-
ing any such certified copy of such appraisement, shall forthwith
cause the same to be recoraed in a book to be kept in his office, to be
entitled the "estray register."

§ 10. Two OR MORE ANIMALS.] If two or moro animals are taken up
at the same time by the same person, both and all thereof shall be
numbered in the same advertisement and appraisement, and the same
fees are allowed as for the advertisement or appraisement of one
estray.

§ 11. Claimant must pay charges.] Whenever any person shall,
appear and make claim to any estray so taken up, such claimant and
the person taking up such estray, shall go before the justice of the
peace before whom such appraisement was had, or some other justice
of the peace of the county, and such claimant shall make affidavit in
writing, subscribed by him, setting forth his name and place of resi-
dence, and that he is the owner of such estray, describing it^ and
thereupon the person taking up such estray, shall be authorized to
deliver the same to such claimant, upon payment of all fees advanced
by him, and his reasonable charges For keeping and caring for such
estray. If the parties cannot agree as to the amount of such charges,
the same shall be assessed by such justice of the peace, and such
assessment shall be final. Every affidavit required by this section,
shall be made and recorded upon and within the docket of such justice
of the peace.

§ 12. Disposition op estray.] If any such estray be not claimed
and taken away within one year after the appraisement thereof, as
hereinbefore provided, and if thtf person taking up such estray shall
have caused tne same to be advertised and appraised, as herein pro-
vided, and shall not in other respects have violated the provisions of
this subdivision of this chapter, and if the appraised value of such
estray does not exc^eed fifty dollars, the property therein shall imme-
diately vest in the person taking the same up.

§ 13. If worth over fifty dollars.] If tne appraised value of any
estray exceeds fifty dollars, and the same is not called for within one
year after the appraisement thereof, the person taking up such estray
shall notify some justice of the peace of the county, and such justice
shall appoint a day and place for the sale thereof, and cause notices of
, such sale to be posted in three public places in the county, at least twenty-

156 DoMBSTiG Animals. Chapter 34.

two days before such day so appointed, or shall cause such notice of such
sale to be published three times in a weekly newspaper, if there is one
published in the county, and on the appointed day the person taking
up such estray shall have the same present at the place fixed by the
justice, and the justice shall proceed to sell such estray at public
auction for cash, and after paying the proper fees and charges for
taking up such estray, and caring for and Keeping the same, to be fixed
by sMch justice, and the fees advanced for the appraisement and adver-
tisement of such estray, as herein provided, and after deducting the
fees allowed such justice for such sale, and the advertisement thereoi^
the residue of the proceeds of such sale shall be paid to the county
treasurer, who shall receipt to the justice therefor.

§ 14. Treasubbb disposes of money.] All moneys ^o deposited with
the county treasurer shall by him be retained in the treasury for six
months thereafter, separate and apart from all other moneys; and if
the owner of any sucn estray so sold as aforesaid shall, within such
period, appear before the board of county commissiQ^ers and establish
his title to such estray, such board of commissioners shall order the
amount so paid into the treasury to be refunded to such owner;
if no such owner appear within six months after the deposit of
any such sum of money as herein provided, the same shall be passed
to the school fund of the county, and shall be accounted for and expend-
ed as other school moneys are.

§ 15. Description filed.] Whenever any sum of money is paid
into tha county treasury by virtue of the thirteenth section, the justice
paying the same shall deliver to the treasurer a certificate setting forth
a description of the estray, from the sale of which the same was
obtained, and the marks and brands on such estray, and the name of
the person by whom such animal was delivered to him to be sold; and
such certificate shall, by the treasurer, be filed and preserved in his
office, to the end that the right of the lOwner of such estray to receive
such sum of money may be readily established,

§ 16. Fees a first lien.] The fees of justices of the peace, adver-
tising and appraisers shall be paid by the person taking up the estray,
but the same shall constitute a first lien upon the estray, and shall be
paid by the owner before he shall be entitled to take away such estray.

§ 17. Unlawful taking — penalty.] If any person not authorized
so to do, shall take up any estray or lost goods, or if any person taking
up any such estray or any lost goods, shall willfully neglect to cause the
same to be advertised and appraised as herein provided, or shall work
or use any such estray beast, except 4n a prudent manner, and so as
not to injure the same, or shall, when working such beast, fail to suf-
ficiently feed and properly care for the same, every such person so
offending shall forfeit twenty-five dollars to the owner of such estray,
to be recovered by action of debt before any justice of the peac^e;
Provided, however, That such action shall not be a bar to an action
commenced by the owner of such estray against the person taking up
the same, if such animal should receive a permanent injury or be
rendered useless because of ill treatment inflicted, or neglect received
from the person taking up such estray.

§ 18. Work of estray.] Any person taking up any estray may
work and use the same in a prudent manner, and so as not to injure

Chapter 35. Salb of Intoxicating Liquors. 157

the same, but during the time of working and using such estray shall
not be allowed to charge or receive any compensation for the keeping
thereof.

§ 19. Loss OF BSTRAY.] If any estray after being duly advertised
and appraised as herein provided, shall, without the fault of the per-
son taking up the same, die, or be stolen, or escape and wander away,
the Person taking the same up shall not be responsible therefor.

§ 20. Sale at county seat.] The place of sale of estrays under
this chapter shall be at the county seat of the county in which the
estray is appraised.

OF LOST GOODS.

8 21. Pkoceebinqs same as estrays.] The manner of taking up,
appraising, advertising and disposing of any lost goods or personal prop-
erty which may be found upon the highway, or in any other place,
shall be the same as herein provided for estrays.

CHAPTER XXXV.

Sale of Intoxicating Liquors. «Ai .a. ti^vr\^^

§ 1. Bond and license required.] It shall be unlawful for any
person hy himself, by agent, or otherwise, to sell in any quantity,
intoxicating liquors to be drunk in, upon, or about the premises where
sold, or to sell such intoxicating liquors to be drunk in any adjoining
room, building, or premises, or other place of popular resort, connected
with said premises where sold, without having first obtained a license
and given bond as hereinafter provided.

§ 2. Board grants ucense — limitations.] All applications for
license to sell intoxicating liquors shall be made to the board of county
commissioners, and shall be granted by said board if they deem it^
expedient and the applicant a proper person to engage in the same ;
and no license shall run for a longer period than one year, without
renewal.

§ 3. License fee, penalty and conditions of bond.] Before any
license is issued the applicant shall produce the receipt of the county
treasurer showing that he has paid into the county treasury the amount
fixed by the boara for such license, to be at the rate of not less than
thirty dollars nor more than three hundred dollars per year, and execute
and deliver to said board his bond to the Territory of Dakota, which
shall be in the penal sum of five hundred dollars, with at least two
good and sufficient sureties, to be approved by the board of county
commissioners, conditioned that the person applying for the license
shall keep a quiet and orderly house; that he will not permit any
gambling in, upon, or about the premises where the intoxicating liquors
are sold, or in any adjoining room, building, or premises, or other place

168 Salb of iNTOxioATiNa Liquors. Chapter 35.

of popular resort conuected with said premises where sold, and shall
well and faithfully keep and observe the laws of the territory and the
provisions of any ordinances or regulations of the municipality wherein
such business shall he conducted, relating to the keeping of saloons,
taverns, and the sale of intoxicating liquors, and shall close his place
or house of business at the hour of eleven-thirty o'clock p. m., every
night.

§ 4, Habitual intoxication — notice — penalty.] Any wife, mother,
father, son, daughter, sister, or other relative of a person. who is in the
habit of getting intoxicated, or the county commissioner, or the mayor
of any city, may make complaint to any justice of the peace of the
county where such person resides, or may be staying, alleging the
name or names of the person or persons from whom saia person
having such habit obtains his liquor, as such relative believes, and
thereupon said justice of the peace, shall, without charge therefor,
issue a notice in writing to such person or persons so named, notifying
him or them that no intoxicating liauors of any kind must be sold or
given away by him or them, or at his or their place of business, to
such person having such habit, and which notice must at once be
served upon such person or persons, as summons are served from
justices' courts; and after the service of such notice if any person or
persons so notified shall sell, give away, or permit any person at his
place of business to sell or give away any intoxicating liquors to such

f)erson about whom he or they have received notice, as 4ifof esaid, his
icense to sell liquors shall from that time be deemed and held to be
candeled^ and annulled, and said person so selling or giving away
shall be fined in any sum not less tnan one hundred dollars, and not
more than five hundred dollars, and be liable in a civil action at the
suit of such relative to pay him, her, or them the sum of five hundred
dollars damages for each offense, and no property of any kind shall be
exempt from payment of such fine or damages^

§ 5. Conviction revokes bond.] When any person so licensed
shall be convicted of a violation of any of the provisions of this chap-
ter; or of the penal statutes of this territory relating to the sale of
intoxicating liquors; or shall violate any of the conditions of said
bond, the board of county commissioners may, and it is hereby made
their duty, to revoke such license, but such revocation shall not be con-
strued to discharge such licensee or his sureties from liability on such
bond for any damage sustained by or right accrued to any person prior
to such revocation.

§ 6. County, town and city authority.] It shall be competent and
lawful for any incorporated town or city, within the county where
such bond is filed and license granted, to prohibit the party so licensed
as well as all others, from engaging in the business of selling intoxi-
cating liquors to be drunk in, upon, or about the premises where sold,
within the corporate limits, until he shall obtain from the town or
city authorities a license, and pa^y into the town or city treasury such
sum as may be fixed by ordinance, to be not less than thirty dollars
nor more than three hundred dollars; Provided, That no additional
bond shall be required; nor shall any license be granted by the author-
ities of any such town or city to any one who has not filed the required
bond with the board of county commisoioners, and obtaiued from such

Chapter 35. Sale of Intoxicating Liquors. 159

board a license; And movided futiher^ That no license granted by
any such town or city shall run for a longer period than the license
granteii by said board, and the revocation of the county license by the
board of county commissioners shall work a revocation of any license
granted under the provisions of this section.

§ 7\ Both may bequiee license fe?.] It shall be competent and
lawful for both the board of county commissioners of any cotmty,
and also the mayor and city council, or other authorities of any town
or city situated therein, to require the payment of the license herein
provided, and the granting of the power to license or tax in any city
or town charter shall not be held as conflicting in any way with the
provisions of this act, the intention being to allow both the county and
town or city authorities to levy and collect a license for the sale of
intoxicating Liquors as herein provided, or as provided by the charter
or ordinances of such town or city.

§ 8. Care of intoxicated person.] Every person who shall, by the
sale of intoxicating liquors, with or without a license, cause the
intoxication of any other person, shall be liable for and compelled to
pay a reasonable compensation to any person who may take charge of
and provide for such intoxicated person, which sum may be recovered
in an action of debt.

§ 9. Giving is selling.] The giving away of intoxicating liquors,
or other shift or device to evade the provisons of this chapter, shall be
deemed and held to be an unlawful selling within the provisions of
the same.

§ 10. Violation a misdemeanor.] Every person selling intoxicat-
ing liquor in violatjion of the provisions of this chapter, or without
having first complied with the requirements of the same, shall be
deemed guilty of a misdemeanor, and upon conviction thereof, shall
be punished by fine not less than twenty dollars nor more than one
hundred and fifty dollars.

§ 11. Exemptions limited.] For the payment of all fines, costs, and
damages assessed against any person or persons, in consequence of the
sale of intoxicating liquors, as provided m this chapter, tne real estate
and personal property of such person or persons, of every kind, shall
be liable, except such property as now is exempted by law; Provided^
Said exemption shalLnot embrace any wines, liquors, or furniture
used in carrying on the trade of a retailer of intoxicating liquor, and
such fines, costs, and damages shall be a lien upon such real estate
until paid; and all the furmture, liquors, glasses, bottles, and barrels
in the custody of any person selling intoxicating liquors, shall be
liable to seizure and sale to pay any fine or judgment against such
person so selling intoxicating liquors.

§ 12. Bond includes all conditions.] All the conditions required
to be included in the bond mentioned in section three of this chapter
shall form and constitute a part of every such bond without being
expressed therein, or if only partially set forth or referred to therein;
and no such boad shall* be void upon the first recovery, but it may be
sued and recovered upon from time to time, as herein authorized, until
the whole penalty is exhausted.

§ 13. Officers make complaint.] It is hereby made the duty of
the district attorney, sheriff constables, and justices of the peace,

160 Peddlers* and Auotionbbrs^ LicnsNSB. Chapter 36.

knowing of any violations of the provisions of this act, to make
complaint thereof to the grand jury of the next term of the district
court of the county or judicial subaivision in which the offense may
have been committed, or to make complaint to a justice of the peace
who shall have power to bind over the offender to appear and answer
at the next term of the district court.

§ 14. Report of clerk to grand jxtry.] Every county derk shall,
on the first day of the term of each district coui^, deliver to the ^rand
jury an accurate list of all persons holding license under the provisions
of this act within the county, which list shall show the date and
expiration of such license.

§ 15. Grand jury indict.] It shall be the duty of the grand juiy
at each and every term of the district court, in every county or judi-
cial subdivision, to make a strict inquiry ana return bills of indictment
against every person violating any of the provisions of this chapter.

CHAPTER XXXVI.

Peddlers' and Auctioneers License.

§ 1. License required.] No auctioneer, peddler, or other person
or persons, company or corporation, shall be permitted to sell, vend,
or retail, either at private sale, or public auction, any goods, wares, or
merchandise, without having first obtained a license for that purpose,
as hereinafter provided.

§ 2. County board grants license.] The board of county commis-
sioners of the respective counties shall have power to grant such
license on the payment into the county treasury, by the applicant for
such license, ot a sum to be assessed and fixed by said board, not less
than ten dollars, nor more than one hundred dollars.

§ 3. Authority under license.] Such license shall authorize the
person receivinff it to vend, sell, and retail goods, wares, and merchaii-
disc, within said county, for the period of one year from the time of
granting the same.

§ 4. CouNTT clerk's POWERS.] If the board of county commissioners
be not in session when the application is made, the county clerk may
grant a written permission to the applicant to vend, sell, and retail
goods, wares, and merchandise, until the end of the next session of the
board of county commissioners, or, if said board take no action upon
the case, for the term provided in £he third section of this chapter;
and, at the time of ^ranting such license, the. clerk may assess the
amount to be paid by the applicant, which shall be paid into the
county treasury accordingly.

§ 5. Clerks' permits revocable by board.] When permission shall
be granted in vacation, as aforesaid, it shall be the duty of the board,
at tiieir next regular meeting thereafter, to examine such permit^ and,

Chopin 37. Wbiohm, 161

if approved, to pioeeed forthwith to assess aad fix the amount to be
paia for such license thereafter, which amount shall be paid as in the
case of original applications; but if the board of county commissioners
do not approve me same, the license shall be vacated, and no other
sum shall be required to be paid tiian that fixed by the county clerk.

§ 6. Pbnalty fob violation.) If any person or persons, company
or corporation, shall, directly or indirectly, keep an auction store, or
sell, vend, or retail any goods, wares, or merchandise, without being
first duly authorized by license, or permit, as aforesaid, such perfeon
or persons, company or corporation, so oflfending, shall forfeit and pay
any sum not less than ten dollars, nor exceeding two hundred dollars.

§ 7. Merchants tax£i> not incliidbi).] Notilnng in this act shall be
so construed as to extend to the sale of goods, wares, and merchandise
by merchants who pay an annual tax upon the same, possessed accord-
ing to the revenue laws of this territory, nor to persons who sell com-
modities manufactured or raised by themselves in this or any adjoin-
ing territory. <SU, 9 a ^. <\<i\

CHAPTEK XXXVII.

Weights.

§ 1. Bi^SHXLS OP articles fixed bt weight.} a bushel of each of
the articles enumerated in this section shall consist of the number of
pounds avoirdupois, respectively, afiBxed to each, viz.:

Barley, forty-eight pounds.

Beans, sixty pounds.

Bran, twenty pounds.

Buckwheat, forty-two pounds.

Beets, sixty pounds.

Broom^Com Seed, thirty pounds.

Com, shelled, fifty-six pounds.

Com, in the ear, seventy pounds.

Clover Seed, sixty pounds.

Coal Stone, eighty pounds.

Flax Seed, fifty*six pounds.

Lime, eijghty pounds.

Oats, th£rty-two pounds.

Onions, flffcy-two pounds.
* Potatoes, Irish, sixty pounds.

Potatoes, sweet, forty-six pounds.

Peas, sixty pounds.

Rye, ifty-six pounds.

Salt^ eighty pounds.

Turnips, sixty pounds.

Timothy Seed, forty-two pounds.

Wheats sixty pounds.
11

162 Homestead and the Conveyance Thereof. Chapter 38.

§ 2. Ton op hay, oubig measure.] A ton of hay shall consist of
two thousand pounds; or, by measurement^ three hundred and forty-
three cubic feet, after the same shall have been stacked thirty days, or
such time as may be agreed upon between the parties. •

§ 8. Cubic feet in perch.] A perch of mason work or stone is
hereby declared to consist of twenty-five feet cubic measure.

CHAPTER XXXVIII.

Homestead and the Convej aiice Thereof,

§ 1. Exempt from judicial sale or judgment.] The homestead
of every family resident in this territory, as hereinafter defined,
whether such homestead be owned by the husband or wife, so long as
it continues to possess the character of a homestead, shall be exempt
from judicial sale, from judgment lien, and from all mesne or final
process issued from ^Cny court.

§ 2. Family defined.] A widow or widower, though without
children, shall be deemed a family w^ile continuing to occupy the
house used as such at the time bf the death of the husband or wife.

§ 3. Conveyance of, limited.] A conveyance or incumbrance by
the owner of such homestead, shall be of no validity unless the hus-
band and wife, if the owner is married, and both husband and wife
are residents of the territory, concur in and sign the same joint
instrument.

* § 4. Liable for its taxes only.] The homestead shall be liable
for taxes accruing thereon, and if certified and recorded as hereinafter
directed, shall be liable only for such taxes, and shall be subject to
mechanics' lien for work, labor, or material, done, or furnished exclu-
sively for the improvement of the same, and the whole or a sufficient
portion thereof may be sold to pay the same.

§ 5. Liable for purchase money. | The homestead may be sold
for any debt created for the purchase thereof. '

§ 6. Must embrace residence.] The homestead must embrace the
house used as a home by the owner thereof, and if he or she has two
or more houses thus used at different times and places, such owner
may select which he or she will retain as a homiestead.

§ 7. Embrace only contiguous tracts.] It may contain one or
more lots or tracts of land, with the buildings thereon and other
appurtenances, subject to the limitations contained in the next section,
but must in no case embrace different lots and tracts, unless they are
contiguous, or unless they are habitually and in good faith us6d as part
of the same homestead.

§ 8. Area embraced.] If within a town plat it must not exceed one
acre in extent, and if not within a town plat it must not embrace in
the aggregate more than one hundred and sixty acres.

Chapter 38. Hombbtbab and the Convey akgb Thereof. 16B

§9. Buiu>iNG8 BMBBAOXD — ^DEFiNBD.] It must not embrace more
than one dwelling house or any other buildings except such as are
properly appurtenant to the homestead as suc^ but a shop, store, or
other builaing situated thereon, and really used or occupied by the
owner in the prosecution of his own ordinary business, may be deemed
appurtenant to such homestead.

§ 10. Sblbction and HARKiN^b.] The owner, or the husband or wife
may select the homestead, and causa it to be marked out, and platted
and recorded as provided in the next section. A failure in this respect
shall not leave the homestead liable, but the officer having the
execution against the property of such a defendant may cause the
homestead to be marked off, platted, and recorded, and may add the
expense thence arising to the amount embraced in his execution.

§ 11. How MARKED ^AND DESCRIBED.] The homcstead shall be
marked off by fixed smd visible monuments, unless the same shall
embrace the whole of a subdivision or lot, and in giving the description
thereof, when marked off' as aforesaid, the direction and distance of
the starting point from some comer of the dwelling house shall be
stated. The description of the homestead, certified and acknowledged
by the owner, shall be recorded by the register of deeds of the proper
county in a book to be called the **homestead book," which shall be
provided with a proper index.

g 12. Change of homestead — limitations.] The owner may from
time to time change the limits of the homestead by changing the
metes and bounds as well as the record of the description, or may
change it entirely; but such changes shall not prejudice conveyances
or liens made or created previously thereto; and no such change of the
entire homestead, made without the concurrence of the tiushani^r wife,
shall effect his or her rights or those of the children. ' ' •

§ IS. New homestead exempt.] The new homestead shall in all
cases be exempt to the same extent and in the same manner as the
old or former homestead waa exempt.

§ 14. Disputed homestead.] When a disagreement takes place
between the owner and any person adversely interested, as to whether
any land or bnildings are properly a part of the homestead^ it shall be
competent for the district court, in any proper case, to determine
SBch qneetiaa, and all questions relating thereto.

§ 15. Order op succession to.] Upon the death of either hunband
or wife, the survivor may continue to possess and occupy the whole
homestead, mitil it is otherwise disposed of according to law; and,
npon the death of both husband and wife, the children may continue
to possess and occupy the whole homestead until the youngest child
beeomes of age.

§ 1€l Dbsctsibb prbe op debt.] Such homestead shall descend »
amotdhw to the law of succession as provided by the civil code,
tnleaB oUierwiae direeted or disposed of by will^ and shall be held
exempt from any antecedent debt of the parent, and, if it descend to
the msae of either husband or wife, it snail be held by such issue
exempt from debts of such husband or wife, except as in the following
section pnmded.

§ 17. If mo auRvrvcm, liablr vor debt.] And if there be no
husband or wife surviving, and no issue, the homestead shall be liable

164 Compensation of Publto Opficbrs. Chapter 59.

to be sold for the payment of any debts to which it miffht at that
time be subjected if it had never been held as a homestead.

§ 18. LimTATiON OF DEVISE.] Snbjoct to the rights of the surviving
husband or wife, as declared by law, the homestead may be devised
like other real property of the testator.

§ 19. Family further defined.] Every fhrmily, whether considting
of one or more persons, in actual occupancy of a homestead, as defined
in this chapter, shall be adeemed and held to be a family within the
meaning of this chapter.

CHAPTER XXXIX.

Compensation of Public Officers.

§ 1. The salaries and fees of the several officers hereinafter named
shall be as follows, to wit:

^ territorial auditor.

§ 2. The salary of the territorial auditor shall be three fadndred
dollars per annum, which shall be payable quarterly; and he shall
receive twenty-five dollars annually for office rent, fiiel, and stationery.

e^ \\* i-f.^V^v territorial treasurer.

§ 3. The salary of the territorial treasurer shall be three hundred
dollars per annum, which shall be payable quarterly; and he shall
receive twenty-five dollars annually for offioe rent^ fuel, and stationery.

CLERKS OF THE DISTRICT COURTS.

§ 4. The clerks of the distinct courts shall be entitled to charge
and receive for their fees and services the emoluments prescribed by
Section 828 of the revised statutes of the United States so far as the
same is applicable to the business in the district courts of counties
and subdivisions, and for any item not embraced within said section
of the United States law, such compensation as may be allowed by the
rules of the court.

THE DISTRICT ATTORNEY.

^A%^. \1% ^&* 'I' he salary of each district attorney shall be not to exceed

six hundred dollars per annum, which shall be payable quarterly frcnn
the territorial treasury; and he shall receive in addition hereto the fol-
lowing fees, to be audited and paid like other claims against tiie
counties:

For each conviction on plea of guilty, five dollars.

For each jury trial in cases of misdemeanors, ten dollars.

For each jury trial, in cases of felony, twenty dollars.

For each judgment for costs only^ five dollars.

Chapter 39, CoMVBNBATioy of Pubug Offiobbs. 165

For all lines and iorieittures actuaHy collected by him, ten per cent,
upon all sums less than fifty dollars, and three per cent, upon all sums
above that amount.

§ 6. In all cases of conviction the fees contemplated in the preced-f VjlAV* H?
ing section, shall be taxed against the defendant^ and, when col-
lected, paid into the county treasury; Provided, That the section
giving a salary shall not apply to the county district attorneys.

cSL.I btJ. .^ ^ \ REGISTER OF DEEDS. t\, V ^. A% \

§ 7. The register of deeds is entitled to charge and receive the fol-
lowing fees:

For recording deed, mortgage, or other instrument, and indexing,
for the first four hundred words, seventy-live cents.

For each additional folio, ten cents.

Copy of record, for each ten words, one cent.

Certificate and seal, twenty-five cents.

M?king certified abstract of title, for the first deed or transfer, one
dollar.

And for each additional deed or transfer, ten cents.

Entering satisfaction of mortgage or lien, twenty-five cents.

For recording each certificate of marriage, twenty-five cents.

For recording marks and brands, each, twenty-five cents.

For filing and indexing chattel mortgage, twenty-five cents.

COUNTY CLERK.

§ 8. For performing the duties of clerk of the county commission-
ers, and attending to the business of the county, the county clerk
shall receive such salary per annum, to be paid by the county quarterly,
aw the commissioners of the county shall allow, not exceeding in any
year the sum of six hundred dollars.

For each certificate and seal in other cases, twenty-five c^nts.

SHERIFF. Ou.7 7ol. kM^%\^

§ 9. The sherifi" shall be entitled to charge and receive the follow-
ing fees:

Serving capias with commitment or bail bond, and return, two
dollars.

For each search on search warrant, one dollar.

Arresting under search warrant, each defendant, one dollar.

Serving summons, order of attachment, order of replevin, writ of
injonctioa, scire facias, citation, or other mesne process, and return
tiiereof, sixty cents.

Each defendant, besides the first, fifty cents.

Copy of summons, order of attachment, twenty-five cent«.

Copy of writ of injunction, scire facias, each ten words, one cent.
• Serving subpoena for witness, each person, twenty-five cents.

Taking and filing replevin bond, or other indemnification, to be
fomishea and approved by the sheriff, one dollar.

Traveling expenses, for each mile actually and necessarily traveled,
ten cents.

Making copy of any process, or bond, or paper, other than herein
provided, for every ten words, one cent.

Levying writ of execution and return thereof, one dollar.

166 Compensation of PtrBLio Ofpiobrs. Chapter 39,

Levying writ of possession, wittf the aid of the county, three dollars
and fifty cents.

Levying writ of possession, without the aid of the cotinty, two
dollars.

Summoning grand jury, including mileage, to be paid by the county,
eight dollars.

Summoning petit jury, including mileage, to be paid by the county,
sixteen dollars. v/

Summoning special jury, for each person empaneled, twenty-five
cents.

Serving notice of motion, or other notice or order of court, fifty
cents.

Executing writ of habeas corpus, and return, one dollar and twenty-
five cents.

Serving writ of restitution, and return, one dollar and twenty-five
cents.

Calling inquest to appraise any goods and chattels which he may be
required to have appraised, sixty cents; and to each appraiser, to be
taxed as costs, one dollar.

Advertisement of sale in newspaper, in addition to the printing,
sixty cents.

Advertising in writing for sale of personal property, one dollar.

Posting notices of sale of real property, one dollar.

Executing writ or order of partition, two dollars.

Making deed for landp sold on execution, or order of sale, two
dollars.

Committing prisoner to prison, or discharging therefrom, fifty cents.

Opening, court and attending thereon, per day, to be paid by the
county, two dollars.

Commission on all money received and disbursed by him on execu-
tion or order of sale, order of attachment, decree, or on sale of real or
personal property, shall be, for each dollar not exceeding four hundred
dollars, three cents.

For every dollar above four hundred dollars, and not exceeding one
thousand dollars, two cents.

For every dollar above one thousand dollars, one cent.

In all cases in the district court, when persons in whose favor the
execution or order of sale is issued, shall bid in the property sold on
execution or decree, the sheriff or master making such sale, shall
receive five dollars as his per cent, on such sale, ana no more.

For boarding prisoner, per day, not exceeding seventy-five cents, to
be determined by the board of county commissioners.

For distributing ballot boxes to the various precincts, two dollars
per day and mileage.

For executing death warrant, such fee as the board of county com-*
missioners shall deem reasonable and just, to be paid by the county.

In all cases where personal property shall be taken by the sheriff on
execution, or on an order of attachment, and applied in satisfaction of
the debt without sale, he shall be allowed the same percentage on the
appraised value of the same as in case of sale.

8 10. The sheriffs of the several counties, for performing the duties
required by law to be performed by them in the probate or justices'

Chapter 89. Cobcrbnsaoi^ion op Public Offior&s. 167

court, shall receive the same fees as are allowed for similar service in
the district court, to he taxed against the proper party or parties by
the probate judge or justice.

CORONER. JL . 1 *" <*- • ^"^ ^

§ 11. The coroner shall be entitled to charge and receive the follow-
inff fees:

For viewing a dead bodj?^, one dollar.

Summoning and qualifying an inquest, fifty cents.

Drawing and returning inquisition, for each ten words, one cent.

For physician making post mortem examination of dead body, not
to exceed in any case ten* dollars.

To be paid of any goods, chattels, land&\ and tenements of the
slayer, in case of murder or manslaughter, ii he hath any, otherwise
by the county^ with mileage for distance actually traveled to and from
the place of viewing the (^ad body.

For all other services rendered, the same fees as are allowed the
sheriiO^ and mileage.

MASTER IN CHANCERY.

§ 12. A master in chancery shall be entitled to charge and receive
the following fees;

For copying any paper or instrument of writing, taking testimony,
for every ten words, one cent.

Swearing each witness, ten cents.

Making report of facts or conclusions of law, or upon exceptions,
for every ten words, one cent.

And such additional fee as the court shall allow, not exceeding in
any one cause, the sum of ten dollars.

Certificate and seal, twenty-five cents.

Taking affidavit, twenty-five cents.

For all services pertaining to the sale of real estate the same fees as
are allowed by law to the sheriflf in like cases.

FEES IN PROBATE COURT.

§ 13. The judge of the probate court shall be entitled to charge
and receive the following fees:

Filing petition for appointment of administrator, executor, and
guardian, or for the revocation of the same, fifty cents.

Granting letters testamentary, or of administration when not con-
tested seventy-five cents, and when cont/ested or opposed, one dollar
and fifty cents, and for order revoking the same, fifty cents.

Hearing any complaint, or an application for the appointment of a
guardian, fifty cents.

ApiK>inting a guardian, fifty cents; and when one guardian sh 11
be appointed for more»than one person at the same time, twenty-five
cents for each person after the first, for whom such guardian shall be
appointed.

Judgment or order for probate of will, when not contested, seventy-
five cents; when contested, one dollar and fifty cents.

For Feduciog to writing the testimony of witness, in cases required
by law, ten cents for every one hundred words.

168 CoMFEKSATioN OF PuBLio OPFiOBBs. Chapter 39.

Certificate of probate attached to will, twenty-five cents.

Recording will and certificate of probate, ten cents for erery one
hundred words.

For issuing waiTant of >arcest, or to compel attendance, fifty cents.

For every commitment to jail of any person, fifty cents.

Recording letters testamentary, and oi administration, and bond, in
each case, one dollar.

Judgment or order for settling an estate, fifty cents.

Order for distribution, fifty cents.

Order of sale of personal or real estate, fifty cents.

Examining and allowing an inventory, fifteen cents for each folio.

Administering an oath to an executor, administrator, or other person,
in cases provided for bjr law, ten cents.

Examining and passing upon accounts Of executors, administrators,
guardians, and other persons, for the first folio, twenty-five cents, and
for each additional folio, ten cents.

For each citation, summons, or other process, twenty-five cents.

Issuing a commission to examine and pass upon claims against an
estate, or to partition property, fifty cents.

Appointment of appraisers of the property of an estate, fifty cents.

Approving and filing a bond given on an appeal, twenty-five cents.

Approving bonds of administrators, executors, or others, twenty-five
cents.

Order for an allowance to a family, widow, or minor children, twen-
ty-five cents.

Order for sale of personal estate, or for publication of any notice, or
any other ordinary order in proceedings oefore him, where no other
provision is expressly made, twenty-five cents.

Making and entering order confirming sale, fifty cents.

For issuing order to show cause, twenty-five cents.

Filing petition for sale of property, and hearing same, fifty cents.

Each order for sale of real estate to pay debts of an estate, fifty cents.

Extending time for settling on an estate, on examining and allowing
claims ajgainst an estate, twenty-five cenfcj.

Granting reference of accounts of executors, or administrators, or
allowing report thereon, fifty cents.

For a bond of executors, administrators, or guardians, on an appeal,
twenty-five cents.

Disallowing application for letters of administration, or probate of a
will, to be paid by the party applying, fifty cents.

Proportioning an insolvent estate among the creditors, seventy-five
cents.

Entering the account of an executor, administrator, or guardian, ten
cents for each folio.

Entering each oath of an executor or administrator, ten cents.

Searching the records or files in his office, for 5ach year, twenty-five
cents.

Every judgment, decree, or order in nature of judgment, not other-
wise provided, fifty cents.

Recording any matter required to be recorded, not otherwise herein
provided for, ten cents for each folio; and when any will or other

Chapter 39. Compsi^bation op Public Officomib. 169

matter is recorded in any other than the English language, for each
folio, twenty cents.

For a translation of any will from any other language, for each
folio, twenty-five cents.

Copies and exemplifications of the probate of any will, of letters
testamentary, or of administration, or of any other proceeding or
order had or made before him, or any other papers filed or recorded in
his office, transmitted on appeal, or furnished on the request of any
person, for each folio, ten cents.

§ 14, The amount of fees charged in any case not contested shall
in no case exceed fifteen dollars, unless the same be audited and certi-
fied to be just by the judge of the district court. QjiA^« t5u .1 1^ '^ . c\^ \

COUKTY TRBA6URER

f^^^ kui 15. Each county treasurer shall receive for his services the follow-
I ingfees:

On all money collected by him for each fiscal year, four per cent.

On all sums collected, percentage shall be allowed but once, and in
computing the amount collected for the purpose of charging penrent-
age, all sums, from whatever source derived, shall be included together,
except the school fund.

For going to the office of the territorial treasurer to settle with that
officer and returning therefrom, a traveling fee of ten cents per mile,
to be paid out of the territorial treasury.

For advertising and selling lands for delinquent tax, an additional
fee of five per cent., to be paid only so far as the lands are actually
5?6ld, and out of the fund received therefor, and to be collected in each
case when the lands are sold, and from the purchaser; but for all
other cases and services the treasurer shall be paid in the same pro
rata from the respective funds collected by him, whether the same be
in money, territorial, or county warrants.

On school moneys by him collected he shall receive a commission of
but two per cent.

For each and every levy he or his deputy shall make on jiersonal
property, for the satisfaction of a tax or taxes, he shall receive a
lee of one dollar and five cents for every mile actually traveled by
him, to be collected out of the property levied on bj' him, and for the
sale of personal property so levied on by him, he shall re(5eive a fee of
one dollar, to be collected out of the property so levied on by him.
^i^i\t!§16. In all cases, where persons reside outside of the t<*rrit<)ry,
apply to the treasurer by letter to pay t^ixes, the treasurer is author-
ized to charge a fee of twenty-five cents for each bix receipt by him
sent to such person.

NOTARIES PUBLIC.

§ 17. Notaries public are entitled to charge and receive the follow-
ing fees:
For each protest, one dollar and fifty cents.
For'recoraing the same, fifty cents.
Par taking affidavit and seal, twenty-five cent«.
For administering oath or affirmation, ten cents. .
For taking deposition, each ten words, one and a half cents.

1 70 CoMPSNSATiON OF PuBLio Offsojbsb. Cliopter 39.

For each certificate and seal, twenty-five cents.

For taking proof of acknowledgment, twenty-five cents.

JUSTICES OF THE PEACE.

§ 18. Justices of the peace shall be entitled to charge and receive
the following fees:

Docketing, each cause, twenty-five cents.

Taking affidavit, twentv-flve cents.

Filing petition, bill of particulars, or other paper necessary in a
cause, ten cents.

Issuing summons, capias, subpoena, order of arrest, or venire for
jury, fifty cents. ^ ^^

Isfeuing^ekecutrofnT' order of sale, order of attachment, order of
replevin, and entering return therein, fifty cents.

Issuing writ of restitution, and entering return therein, one dollar.

Administering oath or affirmation to witness, ten cents. '

Entering judgment in any cause, fifty cents.

Taking acknowledgment of deed or other instrument, twenty-five
cents.

Swearing jury, twenty-five cents.

Copy of appeal, certiorari, or copy of pleadings, or other papers for
any purpose, for each ten words, one cent.

TaKing depositions, for each ten words, one cent.

Certificate, twenty-five cents.

Issuing warrant or mittimus, fifty cents.
. Taking information or complaint, fifty cents.

Discharge to jailer, twenty-nve cents.

Dismissal, discontinuance or satisfaction, twenty-five cents.

Written notice to partj^ or parties, ten cents.

Filing notice and opening judgment for rehearing, fifty cents.

Each adjournment, fifty cents.

Performing marriage ceremony, three dollars.

Each day's attendance upon trial of a cause, after the first day, two
dollars.

Taking and approving bail bond, twenty-five cents.

Entering voluntary appearance of defendant, twenty-five cents.

Issuing attachment, fifty cents.

Entering motion or rule, ten cents.

Rule of reference to arbitrators, fifty cents.

Entering award of arbitrators, twenty-five cents.

Commission on money collected on judgment, without execution,
shall be one per cent, on the amount.

CONSTABLES.

§ 19. Constables shall be allowed the same fees as are allowed to
sheriffs for like services.

JURORS.

§ 20. For each day's attendance at any district court, as grand,
petit, or special juror, to be paid by the county, two dollars.

Traveling expenses for each mile actually traveled, the mileage to
be circular and paid by the county, five cen^.

For juror in justice's court, each case, one dollar.

Chapter^. Compsksation op Public Officers. 171

COUNTY SURVBYORB.

21. Three dollars per day when actually employed, and mileage,
'or each lot laid out and platted, in any city or town, twenty-five
cents.

For each copy of plat and certificate, fifty cents.

Recording each survey, twenty-five cents.

For each mile actually and necessarily traveled in going to work,
ten cents each way.

For establishing each corner, twenty-five cents.

For ascertaining the location of a city or town lot in an old sun^ey,
and measuring and marking the same, two dollars.

For surveying county roads, per day, three dollars.

Expanses of necessary assistance shall, in addition, be paid by the
party or parties requiring the work to be done.

PRINTERS.

§ 22. For printing and publishing legal advertisements in news-
papers, as follows:

Each square of one hundred words for the first insertion, seventy-
five cents.

Each subsequent insertion, for each square of one hundred words,
fifty cents.

In legal advertisements, each one hundred words, or fi'aC!tional part-
thereof over twenty-five words, shall be deemed a square.

For publishing descriptions of delinquent lands, as provided in the
revenue law.

ASSESSOR.

§ 23. Each assessor, or his deputy, shall receive for his services, for
each and every day actually engaged, the sum of three dollars.

COUNTY COMMISSIONERS.

lA.%Vil. J\^KI

§ 24. County commis^oners shall each be allowed, for the time they
shall be necessarily employed in the duties of their office, the sum of
three doUarg per day, and five cents per mile for the distance actually
traveled in attending the meetings of the board, and when engaged in
other official duties, to be paid out of the general county fund.

WITNBSBKa

§ 25. For each day's attendance before the district court, or before
any other court, board, or tribunal, in all civil and criminal cases, one
dollar; and for each mile actually traveled one way, ten cents: Pro-
rided, That in aU criminal cases, witness fees shall be paid out of the
ti:easiiry of the proper county.

TAXATION OF JURY FEE8-

§ 26. There shall be paid by the partv against whom a verdict is
rendered in the district courts a jury fee of five dollars, to l^e taxed in
the bill of costs; and, when collected, to be paid into the county

172 CoMPBN8ATiOK OP PuBLio Offioueb. Chapter 39.

treasury; and for each trial by the court, a fee of one dollar, to be
taxed, collected, and paid in a like manner, for the use of the county.
§ 27. In each criminal case tried by a jury, upon a conviction of the
defendant or defendants, there shall be taxed, in the bill of costs, a fee
of six dollars as a jury fee, and judgment therefor shall be rendered
against such defendant or defendants, which sum, when collected, shall
be paid into the county treasury for the use of the county.

FEES IN MATTERS OF E8TRAY8.

§ 28. The following fees are allowed in cases of estrays:

To justices of the peace for issuing any warrant of appraisement,
fifty cents.

For filing and entering in docket the sworn report of appraisers,
fifty cents.

laking and entering the affidavit of the taking up of any estray,
fifty cents.

For posting notices of estray, and certifying copy of the sworn
reports of the appraisers to the register of deeds, fifty c^nts.

Posting notices and selling an estray, two dollars.

Advertising estray, if pubiiished in a newspaper, three dollars.

To each appraiser, twenty-five cents.

To register of deeds, for entering certified copy of sworn report of
appraisers, twenty-five cents, and for each inspection of the estray
registry, ten cents.

MI8CELLANBOUB PROVlBIONS.

§ 29. Interpreters or translators may be allowed such compensation
for their services as the court shall certify to be reasonable and jiist, to
be taxed and collected as other costs, but the same shall not exceed
two dollars per day.

§ 30. Officers authorized by law to take and certify acknowledg-
ments of deeds, and other instruments, are entitled to charge and
receive twenty-five cents each therefor, and for administering oaths
and certifying the same, ten cents.

§ 31. In all actions, motions, and proceedings ia the supreme, dis-
trict, probate, or justices* courts, the costs of the parties shaJl be taxed
and entered on record separately.

§ 32. The clerk of the supreme court and of each district court,
the register in chancery, probate judge, sheriff, justice of the peace,
constabble, or register of deeds, may in all cases require the party for
whom any service is to be rendered, to pay the fees in advance of the
rendition of such service, or give security for the same, to be approved
by the officer. '

§ 38. All officers whose fees are by this chapter determined, are
hereby required to make fair tables of their respective fees, and keep
the same m their respective offices in some conspicuous place, for the
inspection of all persons who shall have business in said office; and if
any such officer shall neglect to keep a table of fees of his office, as
aforesaid, such officer shall, for such neglect so to keep a table of fees
of his office, forfeit and pay the sum of fire dollars, to be recovered by
action at law, before any justice of the peao^, for the use of the county
in which the offense shall have been committed.

Chapter 40. Public Education. 173

§ 34. It shall be the duty of the district court, at each term of
court, to appoint a competent number of baili£b to wait on the grand
jury and court, during tne term, who shall be allowed for their services
two dollars per day, to be paid by the county.

§ 35. Every officer, whose salary is in the nature of a per diem,
shall, before drawing any money on account of such salary, subscribe
an oath or affirmation in form following:

I, A. B., do soleinojy swear, or affirm, that I have been days necesRarilj' and diligently

CTgaj^ in the dudes of my olflce as (insert title of office.)

[Officer's name.]

Any disbursing officer of this territory who shall pay any portion of
the salary of any officer aforesaid, before such oath or affirmation is
taken and subscribed, shall forfeit to this territory the sum of fifty
dollars, which forfeiture may be sued for by any tax-payer.

Approved, Fe^ary 17, 1S77.

FEtift OT CHAPLAtNS.

CHAFTSR XllY, Lavs of 19M-5. An act to JCstablish Um Feet of Ch«|^iw.

§ 1. Be it enacted by the Legislative Assembly of the Territory of
Dakota, That the fees for chaplains elected by the council and house of
representatives, shall be two dollars ($2.00) per day for services ren-
dered during the session of the legislative assembly. Said fees shall
be paid out of any moneys in the territorial treasury not otherwise
appropriated.

§ 2. This act shall take eflfect aiid be in force from and after its
passage and approval.

Approved, December 30, 1874.

CHAPTER XL.

Public Education- e3U ^ i v ^, ^v ^ ^*^ S

§ L OovEuroB APPOINTS BUPBRiKTSNDBNT.] Thcrc shall at each
biennial session of the l^islaiive assembly be nominated by the gov-
ernor, and by and with the consent of the council, be appointed a
superintendent of public inatmetion, who shall hold his office for two
years, or until his successor is appointed and qualified; Provided,
That when any vacancy occurs in said office by death, resignation, or
otherwim, the goyemor shall appoint some suitable person to perform
the duties of the office for the remainder of the unexpired term.

§ 2. Oath and bond.] The sujperintendent of public instruction
ah^ before entering upon the discharge of the duties of his office,
take aoul subscribe to an oath to support the constitution of the
United States and the or^nic act of this territory, and to faithfully
discharge the duties of ms office, which oath shall be filed with the

174 Public Education. Chapter- 40.

secretary of the territory ; and shall execute a bond in the penal snm
of one thousand dollars^ with two sureties, to be approved by the gov-
ernor, conditioned on the fjodthful performance of his duties and
integrity in his accounts; which bond shall be filed with the secretary
of the territory.

§ 3. Various duties of supbbintbndxnt.] It shall be the duty of
the superintendent of public instruction to keep a record of his official
acts, and to exert himself constantly and faithfully to promote the
interests of education in the territory. And to this end he shall visit
schools, confer with county superintendents, and hold institutes in
company with them, and furnish them blank forms for collecting
statistics of the various schools in the territory. He shall prepare ana
present to the governor, before the fifteenth day of December in each
year, a report of his official acts for the preceding year, with a. full
statement of the condition of the common schools in the territory,
and the expenditure of the public school money, and shall make such
suggestions for the improvement and support of common schools as
he 3iall deem proper.

§ 4. Certificates to teachers.] The superintendent of public
instruction shall also have power to grant certificates of qualification
to teachers of proper learning and ability, to teach in any public
school in the territory, which certificate shall be a professionaJ
certificate; and to regulate the grade of county certificates; which
shall be first, second, and third grade certificates, and the super-
intendent of public instruction may, at his discretion, appoint and
authorize a deputy to perform the duties of the office.

§ 5. Superintendent's compensation.] The compensation of the
superintendent of public instruction for his services, shall be the sum
of six hundred dollars per annum, and necessary mileage, not to
exceed two hundred dollars per annum, and the expense of procuring
blanks, postage, stationery, and such books as are necessary for the use
of his office, and publication of his annual report; all of which allow-
ance shall be paid by the territorial treasurer on the certificate of the
territorial auditor, and said auditor i^ll ^ant such certificate on the
account of said sunerintendent of public instruction, sworn to by him.
^^ 6. So)iooii^«^j^^s, libraries, reports.] Tbb superintendent of
pi|blic instructipn shall discourage the use of sectarian books and
sectarian instrijrction in the schools, to advise in the selection of books
for the schooled istrict libraries, and to open such correspondence abroad
as may enable him to obtain, so far as practicable, information rela-
tive to the system of common schools and their improvements in
other states and countries. He shall examine and determine all
appeals duly made to him from the decision of any county superin-
tendent in forming or altering any school district, or concerning any
other matter under the school law of this territory, and his decision
shall be final He shall prepare for the use of commcm school c^oetB,
suitable forms for making reports and conducting all necessary pro-
ceedings, and he shall cause the laws relating to common schools, with
the rules, regulations and forms aforesaid, and such instructions as he
shall deem necessary to be printed, together with a suitable index, in
pamphlet fonn, at the expense of the territory. He shall prepare a
sufficient number of his annual report to be distributed as follows:

Chapter 40. Public Education. 175

One copy to each member of the legislature; one copv to each county
superintendent of schools ; one copy to each district officer, and to such
o^er of the county and territorial officers as may be by him deemed
proper, not to exceed fifteen hundred copies in one year. The super-
intendent of public instruction, with the county superintendent and
district school officers, may decide what text books shall be used in the
schools; Provided^ hotvever, That after the adoption of a series of text
books by the officers of any school district, and county superintendent,
with the approval of the superintendent of public instrucftion, the
same cannot be changed for the space of three years.

g 7. Territorial institute.] The territorial superintendent of
public instruction, with the several county superintendents, shall hold
annually, at some convenient place, a territorial teachers' institute for
the instruction and advancement of teachers; said institute not to
continue less than four days and not to exceed ten days, which institute
shall be free to all teachers and those preparing to teach in this
territory.

§ 8. County superintendent.] The several counties of this terri-
tory shall at the same time, and in the same manner as other county
officers are elected, elect a suitable x)erson to be superintendent of
public schools within such county; who shall hold his office for two
years from the first of January next succeeding his election, unless he
shall be elected to fill a vacancy, in which case he may immediately
qualify into office, and shall hold his office until his successor is elected
and qualified, and who shall receive three dollars for each day spent in
the discharge of his official duties, and he shall be allowed a reason-
able amount for necessary stationery; and every superintendent of
schools shall make out in detail his account for official services, stating
date and time spent, as well as the kind of service rendered, and make
oath or affirmation to the correctne.ss of the same before any officers
authorized bv law to administer an oath in the county in which he
resides, which oath or affirmation shall be certified by the officer before
such superintendent's account shall be presented to the county com-
missioners for allowance, who shall audit and allow the account, and
the same shall be paid out of the county fund the same as other county
officers, upon the order of the county commissioners; Provided, however,
That no order shall be drawn to any superintendent until he shall have
filed with the county clerk the receipt of the superintendent of public
instroction for the statistical returns of the preceding school year, in
pursaance of the requirements of section twenty of this act.

§ 9. County superintendbkt — how qualify.] The county super-
intendent of public schools shall have charge of the common school
interests of me county. He shalL before he enters upon the discharge
oi the duties of his office, take and subscribe an oath or affirmation to
support Uie constitution of the United States, and the act organizing
this territory, and faithfully to discharge the duties of his office, which
oath or affirmation shall be filed in the county clerk's office. He shall
also execute a bond, with approved security, payable tx) the board of
county commissioner^ for the use of common schools in said county,
in the penal sum of five hundred dollars: said bond must be approved
by the county commissioners, and filed in the county clerk \s offir^.

r

176 PuBMo Education. Chapt^- 40.

§ 10. Districting the county,] That it shall be the duty of the
county superintendent of schools, in addition to other duties required
of hilt), to divide his county into school districts, subdivide and
rearrange the boundaries of the same, when petitioned by a majority
of the citizens residing in the district or districts to be affected by said
change, and to furnish the county commissioners of such county with
a written description of the boundaries of each district, which
description must be filed in the register of deed's ofice, before such
district ^hall be entitled to proceed with its organization by the elec-
tion of school district officers; and it shall be his duty to keep on file
in his office all petitions and remonstrances, which shall show the date
of reception and the action had thereon ; and it shall be his further
duty, on the division of or change of district boundaries, to notify the
clerk of the districts interested, of the change made. Whenever it
shall be deemed necessary to form a district from parts of two or mor«
counties, it shall be the duty of the county superintendent of each
county in which any part of the proposed joint district shall be situated,
to unite in laying out such joint district; and each county superin-
tendent assisting shall file a description of said joint district in the
county clerk's office of his county.

§ 11. Tbeasukeb's monsy btatbhbnt.] It shall be the duty of the
county treasurer, on the first Monday in January and July in each
year, to furnish the county superintendent of public schools with a
statement of the amount of money in the county treasury, beloiigioR
to the school fund, and he shall pay the same, upon the order of said
superintendent^ to the district treasurers.

1 12. Appobtionmbnt of monby — limitation.] It shall be the duty
of the county superintendent of public schools, on the second Monday
of January and July in each year, or as soon thereafter as he shall
receive the statement of the county treasurer provided for in seetioii
11, to apportion such amount to the several oistricte or parts of dis-
tricts within the county, in proportion to the number of children
residing in each, over the age of five and under twenty-one years of
a^e, as the same shall appear from the last annual report of the clerks
of the respective districts, and shall immediately notify, by mail or
otherwise, the district treasurer of each district, the amount of money
due to his district, and he shall draw his order on the county treasurer
in favor of the several district treasurers for the amount apportioned
for each district; Provided, No district shall be entitled to receive any
portion of the common school fund which shall not have held a school
meeting at the time appointed by law for holding annual school meet-
ings in this territory, or within thirty days thereafter^ and made out
and forwarded to the county superintendent of public instruction,
their annual report within forty days of the time fixed by law for
holding annual school meetings in this territory, and which shall not
have had three montte school during the previous year, except aew
dis'tricts, which shall receive one year's apportionment without com-
plying with this provision.

g 13. School visitation — advice — aocounts.1 It shall be the duty
of the superintendent to visit such common schools within their re-
spective counties as shall be organized^ according to law, at least once
in each year, or oftener if they shall deem it necessary. At such visi-

j

Chapter 40. Pttblic Education. 177

I

tation, the snperintendent shall examine into the state and condition
of such schools, as respects the progress in learning, and the order and ,
government of schools ; and they may give advice to the teacher of
such schools, as to the government thereof, and the course of study
to be pursued therein, and shall adopt all requisite measures for the
inspection, examination, and regulation of the schools, and for the
improvement of the schools in learning. Every superintendent of
public schools shall also make out his account for ofncial services in
the manner hereinbefore required, and deliver a copy of the same to
the county commissioners of the county in which such superintendent
was elected or appointed, on or before the first day of the annual
session in January in each year, and the same shall be filed in the office
of the register of deeds.

§ 14. District rbpokts — appeals.] He shall see that the several
reports of the clerks of the several school districts are made correctly
and in due time, and shall hear and determine all appeals from the
decision of district boards.

§ 15. Public examination of teachers — certificates — fee.] He
shall hold public examination of all persons offering themselves as
teachers of common schools at the county seat of his county, on
the last Tuesday of April and October of each year, notice of which
shall be ^ven publicly as possible, at which lime he shall grant cer-
tificates for not less than three months, or more than one year, to
such persons as he shall find qualified as to moral character, learning,
and ability, and any person receiving such certificate shall be deemed
a qualified teacher within the meaning of this act. Persons applying
to the county superintendent for a certificate at any other time than
at the public examination, shall pay to the said superintendent the
sum of one dollar for his services.

§ 16. New district — meeting — joint district.] Whenever a school
district shall be formed in any county, the county superintendent of
schools of such county shall, within fifteen days thereafter, prepare
a notice of the formation of such district, describing its bounda-
ries and stating the number thereof, and appointing a time and
place for the district meeting. He shall cause tne notice thus prepared
to be posted in at least five public places in the district, at least
ten days before the time appointed for such meeting; and when a
joint district is formed from portions of two or more counties, the
county superintendents of each county from which any portion of the
new district is taken, shall unite in giving the customary notices, and
the new district shall be numbered by the superintendent of the
county having the highest number of districts. Any citizen aggrieved
by the action of the county superintendent of schools in the formation
of the school district in which he resides, shall have the right to
appeal from his decision to the board of county commissioners, if
such appeal be taken within sixty days from the time of the for-
mation or change of said school district.

§ 17. Records to be delivered.] The county superintendent of
public schools shall perform all other duties of said office that now are or
may hereafter be prescribed by law, and he shall deliver to his succes-
sor, within ten days after the expiration of his term of office, all
the books appertaining to his office.
1%

178 Public Education. Chapter 40,

§ 18. Vacancy eillxd.] If a vacancy occur in the oflfice of county
superintendent of public schools by death, resignation, or otherwise,
notice thereof shall be given by the register of deeds to the county
commissioners, who shall, as soon as practicable, appoint some suitable
person to fill the vacancy, and the person receiving such appointment^
shall, before entering upon the discharge of the duties of his office,
file his oath or affirmation in the county clerks' office, as hereinbefore
provided, and shall discharge all . the auties of the office of county
superintendent of public schools until a successor is elected and
qualified. He shall give a like bond to that required by this act to
be given by the county superintendent of schools.

§ 19. Report to territorial supbrintenbent,] The county superin-
tendent shall make full and complete annual returns to the superintend-
ent of public instruction, between the first and tenth days of November
of each year, of the number of children between the ages of five and
twenty-one in the school district within their respective counties; also
the number of qualified teachers employed; the length of time each
district school has been taught during the year; the kind of text books
used; and the amounts expended; the amounts raised in each county
and district by taxation or otherwise for educational interests ; and any
other items that may be of service to the superintendent of public
instruction in preparing his annual report. The district clerk shall
r^ort to the county superintendent the name of the school district
officers, with their postoffice address.

SCHOOL district MEETINGS.

§ 20. Powers of meeting.] The inhabitants qualified to vote at a
school district meeting, lawfully assembled, shall have power:

1. To appoint a chairman to preside at said meeting in the absence
of the director.

2. To adjourn from time to time; Provided, however, That no
annual meeting shall be adjourned for more than thirty days.

3. To choose a director, clerk, and treasurer, who shall possess the
qualifications of voters as prescribed in the next section of this act, at
tne first and each annual meeting thereafter.

4. To designate by vote a site for a district school house.

5. To vote a tax annually not exceeding two per cent on the tax-
able property in the district, as the meeting shall deem sufficient to
purchase or lease a site, and to build, hire, or purchase a school house,
and to keep the same in repair.

6. To vote a district tax annually, not exceeding two per cent, on
the taxable property of the district, for pay of teachers' wages in the
district, and necessary fuel and other school expenses*

7. To authorize and direct the sale of any school house site or
property belonging to the district when the same shall no longer be
needful for the district.

8. To vote such a tax as may be necessary to furnish the school
house with blackboards, outline maps, stoves^ furniture, and apparatus
necessary for illustrating the principles of science, or to discharge any
debts or liabilities of the district, lawfully incurred; Provided^ That
said tax shall not exceed one per cent, in any year, and may be applied

Chapter 4P. Public Education. 179

to any other purpose by a vote of the district at any regularly called
meeting.

9. To give such direction, and make such provision, as may be
deemed necessary in relation to the prosecution or defense of any suit
or proceeding in which the district may be a party.

10. To alter o^ repeal their proceedings from time to time, as occa-
sion may require, and to do any other Dusiness contemplated in this
act

11. To vote a tax not exceeding twenty-five dollars ($25.00) in any
one year, to procure a district library consisting of such books as they
may direct any person to procure.

§ 21. What persons may vote.] The following persons shall be
entitled to vote at any district meeting: All persons possessing the
qualifications of electors as defined by the laws of the territory, and
who shall be actual residents of the district at the time of oflFenng to
vote at such election.

§ 22. Proceedings if challenobd.] If any person offering to vote
at a school district meeting be challenged as unaualified, by any legal
voter, the chairman presiding shall declare to tne person challenged
the qualifications of a voter, and if such challenge be not withdrawn,
the chairman, whd is hereby authorized, shall tender to the person
offering to vote the following oath or aflSrmation:

Yoa do solemnly swear, or affirm, that you are an actual resident of this district, and that
yoQ are qualified by law to yot« at this meeting.

Any person taking such oath or affirmation, shall be entitled to vote
on all questions voted upon at such meeting.

OiWANIZATION OP DISTRICTS.

§ 23. When deemed obganizedJ Every school district shall be
deemed duly organized when the officers constituting the district board
shall be elected and qualified. Every person duly elected to the office
of director, clerk, or treasurer of any school district, who shall refuse
or neglect, without sufficient cause, to accept of such office and serve
therein, or who, having entered upon the duties of his office, shall
neglect or refuse to perform any duty required of him by the provis-
ions of this act, shall forfeit the sum of ten dollars to the school
district fund.

§ 24 What of*iceb8 elected — terms.] The officers of each school
di^brict shall be director, clerk, and treasurer, who shall be qualified
voters of the district, one of whom shall be elected at each annual
school meeting, to serve for three years, and until his successor is
elected and qualified ; Provided, That at the next annual school meet-
ing after the passage of this act, and at meetings called to organize
new districts, the oirector shall be elected to serve for one year, the
clerk for two years, and the treasurer for three years.

§ 25. School district body corporate.] Every school district
oiganized in pursuance of this act shall be a body corporate, and shall
possess the usual powers of corporation for public purposes, by the name

and style of school district No (such number as may be designated

by the county superintendent), county (the name of the county

in which the district is situated), Territory of Dakota, and in that name

180 Public Education. Chapter 40.

may sue and be sued, and capable of contracting and being contracted
with, and hold such real and personal estate as it may come in posses-
sion of by will or otherwise, or is authorized to be purchased by the
provisions of this act.

§ 26. Time for annual school meeting — special meeting.] An
annual school meeting for each district shall be held at the school
house or at the place usually occupied for school purposes, or at some
central place in the district on tne first Tuesday in April, at such
hour as the district board may direct. Annual school meetings shall
be called by the district clerk ten days previous to the time of such
meeting, who shall post three notices oi the time and place of hold-
ing such meeting. But if the district clerk shall neglect or refuse to
notify the annual school meeting, a special meeting may be called as
provided in section twenty -seven^ at which time it shall be lawful to
elect school district officers and transact any other business usually
done at the annual school meetings. Special school meetings may
be held at any time by the order of a majority of the district board,
for which ten days' notice shall be given by the district clerk, said
notice stating the business to be acted upon by said meeting. Special
school meetings may also be held at the call of any. five legal voters
of the district, who shall subscribe and post three notices in public
places in the district ten days previous to the call of the meeting,
said notices to specify the business to be acted upon by said school
meeting.

§ 27. If annual meeting passed.] Whenever the time for holding
the annual meeting in any district shall pass without such meeting
being held, the clerk, or in his absence, any member of the district
board, within twenty days after the time for holding said annual meet-
ing shall have passed, may give notice of a special meeting by putting
up written notices thereof in three public places within the district, at
least ten days previous to the time of meetinjg. But if said meeting
shall not be notified within thirty days aforesaid, the county superin-
tendent may give notice of such meeting in the manner provided for
forming new districts, and the officers chosen at such special meeting
shall hold their respective offices until the next annual meeting, and
until their successors are elected and qualified.

§ 28. Powers of voters at district meeting.] The qualified voters
at each annual meeting, or at any special meeting duly called, may
determine the length of time a school shall be taught in their district
for the ensuing year, and whether the school money to which the dis-
trict may be entitled shall be applied to the support of the summer or
winter term of school, or a certain portion to each; but if such matters
shall not be determined at the annual or special meeting, it shall be
the duty of the district board to determine the same.

§ 29. Duties of the director.] The director of each district shall
preside at the district meetings, and shall sign orders drawn by the clerk,
authorized by the district meeting, or by the district board, upon the
treasurer of the district, for moneys collected or received by him to be
disbursed therein. He shall appear for and in behalf of the district in
all suits brought by or against tne district, unless other direction shall
be given by the voters or such district at a district meeting.

I

Chapter 40. Public Education. 181

DISTRICT CLERK.

§ 30. Duties of the clerk.] The clerk of each district shall record
the proceedings of his district in a book provided by the district for
that purpose, and enter therein copies of all the reports made by him
to the county superintendent, and he shall keep and preserve all
records, books, and papers belonging to his office, and deliver the same
to his successor in office.

§ 31. When clerk appointed pro tem.] The said clerk shall be
clerk of all district meetings: but if said clerk shall not be present, or
being present, shall refuse to act at such district meeting, the voters
present may appoint a clerk for such meeting, who shall certify the
proceedings thereof, and the same shall be recorded by the clerk of the
district.

§ 32. Clerk to post notices op meetings. 1 It shall be the duty of the
clerk to give at least ten days' notice previous to any annual or special
district meeting, by i)06ting up notices thereof at three or more public
places in the district, one of which notices shall be affixed to the outer
door of the school house, if there be one in the district: and said clerk
shall give the like notice of every adjourned meeting, when such meet-
ing shall have adjourned for a longer period than one month. Every
notice for a sj^cial district meeting shall specify the object for which
such meeting is called.

§ 33. Clerk's orders on treasurer.] The clerk of the district shall
draw orders on the treasurer of the district for moneys in the hands of
such treasurer, which have been appropriated to or raised by the
district, to be applied to the payment of teachers' wages, and apply
such money to tne payment of teachers' wages, as shall have been
employed by the board, and the clerk shall draw orders on the said
treasurer for moneys in the hands of such treasurer to be disbursed for
any other purpose ordered by a district meeting, or by a district board,
agreeable to tne provisions of this act.

§ 34. Clerk to notify county clerk of tax.] It shall be the duty
of the district clerk on or before the first day of May in each year, to
notify the county clerk of the amount of tax, if any, voted at the last
annual meeting, and of any tax levied by the district board to i)ay
judCTient, of which notice has not been previously given, which notice
shall be substantially in the following form:

Dutrict c1erk*8 office, school district No of county, Dakota Territory.

1S8..

To the county clerk of county, Dakota Territory :

I hereby notify yoa thai at a district meeting of district No held on the day

of. ISS-.at the district Yoted the following tax:

For school house fund mills.

For teacher's fund mills.

For contingent fund milLs.

Total mills.

On the dollar of valuation of real and personal property for school purposes for the coming
jrear, and yoo are hereby ordered to enter such tax on the county* tax list for collection on the
pim»CTty in thia disUict.

§ 35. Beport of district clerk— contents.] The clerk of each dis-
trict shalL on or before the first day of April in each year, make out
and transmit a report in writing to the county superintendent of

182 Public Education. Chapte^^ 40.

public schools for each county in which part of his district may lie,
showing,

1. The number of children, male and female, designating each sepa-
rately, residing in the district or parts of districts oil the last day of
March previous to the date of such report, over the age of five and
under twenty-one years.

2. The number and sex of children attending school during the year,
and branches studied.

3. The length of time a school has been tauffht in the district by a
qualified teacher, the name of the teacher, the length of time, and the
wages paid.

4. The amount of money raised T^y the district, and the purpose for
which it was levied; also the amount received from the apportionment
of county fund, and the manner in which the same has been applied.

5. The amount of taxes levied, and now in the hands of the county
treasurer for collection; also the amount of outstanding or unpaid
orders on each fund, if aay.

6. The kind of text books used in the school, and such other facts
and statistics in regard to the district schools as the county superin-
tendent may require.

7. The names of school district officers, and the time their term of
office expires.

§ 36. Clebk to keep reports.] It shall be his duty to keep a cor-
rect copy of all reports made, and turn them over to hi^ successor;
also of all orders drawn on the treasurer, and record the treasurer's
reports in his records of proceedings.

DISTRICT TREASURER.

§ 37. Bond of treasurer.] The treasurer shall execute to the dis-
trict a bond in double the amount of money, as neao* as can be ascer-
tained, to come into his hands as treasurer of the district in any one
y6ar, with sufficient securities, to be approved by the director and
clerk (who may at any time require new or additional bond, and shall
require new bonds whenever the amount of money to come into his
hands shall be equal to the amount of bond, or upon the failure, death,
or removal from the county of any bondsman, or other sufficient
reason), conditioned upon the faithful discharge of the duties. of said
office. Such bond shall be filed with the district clerk, and in case of
the breach of any condition thereof the director shall cause a suit to
be commenced thereon in the name of the district, and the money
collected shall be applied by such director to the use of the district as
the same should have been applied by the treasurer; and if such
director shall neglect or refuse to prosecute, then any householder of
the district may cause such prosecution to be instituted ; and the neces-
sary expenses thereof, in any case arising under this section, unless
otherwise ordered by the court, shall be paid out of the contingent
fund.

§ 38. Breach op bond.] If the treasurer shall fail to give bonds as
required in this act, or from sickness, or from any other cause shall be
unable to attend to his duties, said office shall be deemed vacant.

§ 39. County treasurer to pay over school fund.] The treasurer
of each district shall apply for, and the county treasurer shall pay

Chapter 40. Public Education. 188

over to the district treasurers all of the school moneys collected for
his district upon the order of the director and clerk of the district, on
hand the first Monday in October, January, April and July of each year;
and of the county school fund upon the order of the county superin-
tendent: and the district treasurer shall pay over, on the order of the
clerk, signed by the director of such district, out of the moneys in his
hands belonging to the funds drawn upon.

§ 40. When district treasurer refuses to pay.] If any district
treasurer shall refuse or neglect to pay over any money in the hands
of such treasurer belonging to the district, it shall be the duty of his
successor in oflBce to prosecute, without delay, the official bond of
such treasurer fcfr the recovery of such money.

§ 41. In case of loss.] I^ by neglect of any treasurer, any school
money shall be lost to any school district which has been received
from the county treasurer, said treasurer shall forfeit to such district
t-he full amount of money so lost.

§ 42. Statement of district treasurer.] The treasurer shall pre-
sent to the district at each annual meeting, a report in writing con-
taining a statement of all moneys received by him from the county
treasurer during the year, from assessments in the district, and
apportionment and the disbursements made, and exhibit the vouchers
t&erefor, which report shall be recorded by the clerk; and if it shall
appear, at the expiration of his term of office, that any balance of money
is in his hands at the time of making such report he shall immediately
pay such balance to his successor.

district board.

§ 48. District board but or sell school house — other duties.]
The district board shall purchase or lease such site for a school house
as shall have been designated by voters at a district meeting in the
corporate name thereof and shall build, hire, or purchase such school
house as the voters of the district in a district meeting shall have
aneed upon, out of the funds provided for that purpose, and make
sSe of any school house, site, or other property of the district, and, if
necessary^ execute a conveyance of the same in the name of their
office when lawfully directed by the voters of such district at any
fegolar or special meeting, and shall carry into effect all lawful orders
of the district.

§44. Have oars of school propertt — appoint librarian.] The
district board shall have the care and keeping of the school honse and
other property belonging to the district They shall have power
to make such rules ana regulations relating to the district library as
they may deem proper, and to appoint some suitable person as
Ubrariaiu and to take charge of the school apparatus belonging to the
disfarict

§ 45. Scholars from other districts — fees, how paid.] The
district board shall have power to admit scholars from adjoining
disbicts. and remove scholars for disorderly conduct and when
scholars are admitted from other districts, the district board may, in
their discxetioiL require a tuition fee from such scholars; or they shall
have power to send scholars from their district to any othei' school
within a reasonable distance, and pay a tuition fee therefor, or they

184 Public Eotoatiok. Chapter 40.

»

mBj send only advanced scholars to a graded or high school outside of
the district, paying tuition fee therefor; and in the collection of taxes
and distribution of school money, have the same eiffect and be the same
as though there was a school and teacher kept in the district for as
many months as scholars attend other schools, and the tuition shall
be paid out of the teachers' fund.

§ 46. District board hire teachers.] The district board shall
contract with and hire qualified teachers for and in the name of the
district, which contract shall be in writing, and shall specify the wa^es
per week or month, as agreed upon by the parties; and such contract
shall be filed in the district clerk s office.

§ 47. Provide necessary appendages of school house.] The dis-
trict board shall provide the necessary appendages for the school house
durinff the time school is taught therein; and the bills for the same
shall be presented and allowed (if reasonable) at^ any regular district
meeting.

§ 48. Schools free to all children.] The district schools established
under the provisions of this act, shall be at all times equally free and
accessible to all children under the age of twenty-one years and over
five years of age, residents of the district, subject to such regulations
as the district ooard in each may prescribe. .

§ 49. Branches to be taught.] In every school district there shall
be tanght orthography, reading, writing, Ebglish grammar, geography,
and arithmetic, if desired, during the time the school shall be kept,
and such other branches of education as may be determined by the dis-
trict boarii.

§ 50. Special meeting elect in case of vacancy.] If a vacancy
should occur in the district board in any district, the remaining mem-
ber or members of the board shall, within thirty days, call a special
district meeting to elect a new member or members of the board, to
serve until the next annual meeting, at which time a new member or
members of the board shall be elected to fill vacancy for the unexpired
term.

revenue.

§ 51. County clerk to levy poll and other tax.] It shall be the
duty of the county clerk of each county, at the time of making the
annual assessment, to levy a tax of one dollar on each elector m the
county for the support of district schools, and a further tax of three
mills on the dollar upon the taxable property of the county, to be
applied to the same purpose, to be collected at the same time and in
the same manner as prescribed by law for the collection of taxes,
which taxes, when collected, shall be distributed to the several school
districts in proportion to the number of children over five and under
twenty-one years of age therein, and shall be drawn from the county
treasury upon the order of the superintendent of schools of the
county.

§ 52. Duties of clerk in relation to taxes for schools.] It shall
be the duty of the county clerk, and it is hereby made his duty, to
make out and charge up to each description of real estate, and on all
personal property m his county, the district school taxes as he is
notified has been voted by the district in which it is situated, in the

Chapter 40. PuBuo Education. 185

same manixer as the county and territorial tax list is prepared, and
deliver it to the county treasurer at the same time.

§ 58. County treasuree to collect school taxes.] And it shall be
the duty of the county treasurer, and it is hereby made his duty, to
collect the taxes for school purposes at the same time and in the same
manner as the county and territorial tax is collected, and full power is
hereby given him to sell the property, or any property for school taxes,
the same as is now by law provided for other taxes; and he shall exe-
cute a tax deed on tax sales made for school district taxes, the same as
is provided in the case of other taxes, and receive the same fees as is
provided in the case of other taxes.

§ 54. Moneys collected by county treasurer.] The county treas-
urer shall collect all moneys due the county for school purposes from
fines, forfeitures, or proceeds from the sale of estrays, and all moneys

Eaid by persons as equivalent for exemption from military duty, and
e shall pay the same to the said district treasurers as prescribed by
this act. He shall collect all delinquent school taxes, as by law
provided for other taxes, and he shall pay the same over to the treas-
urer of the district entitled thereto, less his fees and cost of collecting;
and if any county treasurer shall refuse to deliver over to the order of
the superintendent any money in his possession, or shall use, or permit
to be used, for any other purposes than are specified in this act, any
school money in his possession, he shall, on conviction thereof, be
adjudged guilty of a misdemeanor, and punished by a fine not exceed-
ing five hundred dollars, or by imprisonment in the county jail not
exceeding one year.

§ 55. Money improperly collected refunded.] Whenever an error
may be discovered in any district tax list, the district bog^rd may order
any money which may have been improperly collected on such tax list
to be refunded.

§ 56. City and town schools share.] The public schools of anv
city, town, or village which may be regulated by special law set fortn
in the charter of such city, town, or village, shall be entitled to receive
theii- proportion of the public fund; Provided, That the clerk of the
board of education in such city or village shall make due report within
the time and manner prescribed in this act to the superintendent of
schools.

miscellaneous.

§ 57. Teachers report at end of term.) It shall be the duty of the
teacher of every district school or graded school, to make out and file
with the district clerk, at the expiration of each term of school, a full
report of the whole number of scholars admitted to the school during
such term, distinguishing between male and female, the text books
used, the branches taught, and the number of pupils engaged in the
study of said branches. And teachers who shall neglect or refuse
to comply with the requirements of this section, shall forfeit his or her
wages for teaching such school, at the discretion of the district board.

§ 58. Penalty for false report.] Every clerk of a district board
who shall willfully sign a false report to the county superintendent of
his county, shall be deemed guilty of a misdemeanor and punished by

1S6 Public Education. Chapter 40.

a fine not exceeding one hundred dollars, or by imprisonment not
exceeding three months.

§ 59. Fenalty for refusal to deliver books to successor.] Every
school district clerk, or treasurer, who shall neglect or refuse to deliver
to their successors in office, all records and books belonging severally
to their offices shall be subject to a fine not exceeding five dollars.

§ 60. Taxes to pay judgment.] Whenever any final judgment shall
be obtained against any school district, the district board shall levy a
tax on the taxable property in the district for the payment thereof;
such tax shall be collected as other school district taxes, but no execu-
tion shall issue against any school district.

§ 61. Jurisdiction op justices of peace.] Justices of the peace
shall have jurisdiction in all cases in which a school district is a party
interested, when the amount claimed by the plaintiff shall not exceed
one hundred dollars; and the parties shall have the right to appeal, as
in other cases. •

§ 62. Compensation of school district officers.] No school dis-
trict officer mentioned in this a^ct shall receive any compensation for
his services out of the territorial or county school fund, but a regularly
convened district meeting may by vote allow the district board such
compensation as they shall deem proper.

§ 68. Penalty for refusing to serve.] Any person duly elected
at the annual district school meeting to either of the district offices
mentioned in this •act, who shall omit or refuse to serve as such officer
without substantial cause, shall forfeit the sum of ten dollars for such
omission or refusal, which amount may be recovered by the district in
civil action, before any justice of the peace in the county where such
district is located, and ^hall be appropriated to the support of schools
in his district by whom such action was prosecuted.

§ 64. Courts to collect certain fines.] All fines and penalties not
otherwise provided for in this act, shall be collected by action in any
court of competent jurisdiction.

8 65. Disposition of money donated.] Whenever any sum of money
shall be paid into the county treasury by any educational aid society,
or benevolent person or persons, for the cause of education, the county
treasurer shall issue to such society, or person, a certificate of deposit,
stating the amount of money received, froin what source, and for what
source, and for what purpose the same is applied, whether to the pay-
ment of teachers' wages, the building or leasing of school houses, or the
purchase of a site of land, and the particular school district or districts
to which the said money is donated ; and the said educational fund
may thereafter be drawn from the county treasurer by order of the
county superintendent of schools, and applied by the district board of
the proper district to the object specified in the certificate of donation.
And the county superintendent of public schools shall make a state-
ment of the expenditure of said fund in his annual report.

§ 66. Teachers' institutes — appropriation.] The territorial super-
intendent of public instruction, in connection with the county super-
intendent of each county, shall annually hold a session of the teachers'
institute, of not more than ten days in length, and the sum of one
hundred dollars is hereby appropriated from any funds in the terri-
torial treasury not otherwise appropriated, for the purpose of employ-

m

Chapter 40. Pctblic Education. 187

ing experienced teachefrs to assist in conducting the sarae, and defray-
ing otner expenses; the several connty superintendents are hereby
required to aid in conducting the said institute.

§ 67. Spsoial county institutes.] The superintendent of public
instruction shall each year, upon the request of any county superin-
tendent, accompanied by a petition signed by not less than ten teachers
residing in his county, appoint a county teachers' institute, which shall
continue in session not less than one week, and not mpre than four
weeks; Provided^ howereVy Any two or more county sui)erintendents
may join in requesting the superintendent of public instruction to
appoint a county institute in one of the counties represented by them,
by forwarding with such request a petition signed by not less than ten
teachers residing in said counties. And the sum of fifty dollars is
hereby appropriated out of any funds in the territorial treasury not
otherwise appropriated, for the purpose of defraying the expenses of
each county institute held under the provisions of tnis section. And
the territorial auditor shall issue a certificate to the amount of fifty
dollars upon the certificate of the superintendent of public instruction,
that any county superintendent or county superintendents have made
the required application for such county institute; and it may be
required by county superintendents of teachers applying for certificates
to teach, that they shall attend the sessions of the county institute,
unless prevented by sickness or some unavoidable occurrence.

§ 68. Certificate op valuation.] It shall be the duty of all county
or township' assessors to furnish to the school district clerks within
their respective counties or townships, at least three days before the
annual school meeting, a certificate of the total valuation of all
taxable property, real and personal, within each school district re-
spectively.

§ 69. Outline district maps.] It shall be the duty of the county
superintendent to furnish the county or township assessors with an
outline map showing the boundaries of the school districts, in time •
for the provisions of the preceding section.

FORMS.

§ 70. The form of notice of the first district school meeting, may
be substantially as follows:

To , a householder in school cHstrict number

The county superintendent has formed school district number in the county of

of which the following is a description and you are

hereby directed to post this notice in at least five public places in said district^ notify ing the
voters of said district to attend the first meeting thereof, which is appointed to be held at the ^

house of , in said district, on the day of 18. . . , at

, o'clock / ,

County Superintendent of Public Instruction.
This '. day of 18. . .

§ 71. The form of notice for annual district meeting may be as
follows:

Notice is hereby given to the voters of school district number of.

k

counw, that the annual meeting of said district will be held at on

day or 18..-, at o'clock

This day <rf 18. . .

District Clerk.

1S8 ^ PxTBuc Epucaticw. Chapter:40.

% 72. The form of order on the district treasurer may be as follows:

To treasurer of school district number of the

couDty of

Pay to the order of the sum of dollars for

out of any moni^ in your hands belonging to the fund not otherwise

appropriated, belonging to said district.

District Clerk.

Director.

Dated at D. T., this day of 18. . .

§ 78. The form of bond of district treasurer may read as follows:

Know all men by these presents, that we treasurer of school district

number county and .his

surety, areheld and firmly bound unto school district No in the sutn of

dollars, for the payment of which we bind ourselves sereraUy

and Jointly, our heirs, executors, and administrators, firmly by these presents. Sealed with our

seals. Dated this day of 18. . .

The conditions of the above obligation are such that if said treasurer

as aforesaid, shall faithfully discharge the duties of his office as treasurer of school district

number county as prescribed by law, then this obligation

to be Toid, oth^^ise to remain in full force.
Signed, staled, and delivered, in presence of

IsE^l

n9BAI..1

[SEAI>.J

§ 74. Vouchers may be in the following form :

* •

Received, 18. . . , of treasurer of school diBtrict

number county of , dollars, for services

rendered as teacher in the said district, for the term of months.

Teacher.

§ 75. The form of contracts between district and teacher may read
as follows:

It is hereby agreed between school district number.' county df

and teacher, That the said is to teach the common

school of said district for the term of months, for the sum of

dollars per , commencing on the • day of , 18. . ., and

for such serrictes properly rendered, the said school district is to pay the

amount that may be due a<^cording to this contract, on or before the day of

•••* 1^* • •

District Board.

This day of 18. . . Teacher.

§ 76. The form of annual report of district treasurer may be sub-
stantially as follows:

I, , treasurer of school district number county of

, submit the following report of all moneys received and disbursed by me

since the last annual meeting:

Amount on hand last report •

Amount received from county treasurer.

Total amount received $

Which has been placed to the credi^ of the following funds:

School house ♦

Teachers

Contingent

Paid out on orders of the district clerk and director on the following funds:

School house ♦

Teachers

Contingent •

Total;fpaid out

Balance on hand '

Divided among the funds as follows :

School house • ♦ ■

Teachers' .• ■

Contingent _«

This day of A. D. 18. . . .

Treasurer.

Chapter 40. Public Education. 189

§ 77. The form of report of district clerk to the county superin-
tendent of public instruction may read as follows:

• Dakoto 18

To coanty superintendent of schools for county, Dakota :

SiB:~The following is a correct report of the condition and statistics of school district num-
ber of county, for the .year ending

August Slst, 18. . .

Number of children residing in district ) Males

between the ages of 5 and 31 ) Females —

Total

Number of pupils attending school during the year (of these ) Males «-«-

resided in other district^ f Females —

Toul

Number of months school has been taught during the year

Teachers' Names. Wages. No. of Months Taught.

I

Amount of money received from county fUnd during year ♦ $■

Amount of money raised on district tax

Amount of money on hand from last year

Total $-

Amount paid for buildings and repairs $-

Amount paid for furniture, library, and apparatus

Amount paid for fuel and other expenses •

Amount paid for teachers* wages

Totol $.

Balance in hand of treasurer |-

Value of all school district property -

TRXT BOOKS USBD IN SCHOOL.

Readers, Spellers,

Arithmetics, Cfeographiet,

Grammars, Histories.

The last school meeting was held 18 at

Names of School Board. Address. Terms expire.

Director. 18. . . .

Clerk. 18

Treasurer. 18

Remarks

District Clerk, School District No of County.

To which should be added a copy of teachers' reports, giving the nam&, a|^ and total num-
ber of male and female pupils, number of days taught, the kind of text books used, the number
of scholars in each branch of study, and the greatest number of miles to be traveled by scholars
living on the border of the district.

The form of the clerk *s notice to the county clerk may read as follows :

Dakota 18

To county clerk of county, Dakota :

Sir:— At the last meeting of school district No in the county of held at.

on the day of 18 it was voted to collect the followmg rate of taxes, for the use

of the district:

For the school house funds mills on the dollar.

For the teachers* funds mills on the dollar.

For the contingent ftinds . . . .mills on the dollar.

Which you will carry out on the tax list for this district.

District Clerk. Director.

§ 78. A school teacher's certificate may be in the following form :

Dakota Territory, County, A. D. 18. . .

This is to certify that has been examined by me, and found competent to give

instruction in reading, orthography, writing, arithmetic, English grammar, geography, and

, and, having exhibited satisfactory testimonials of good moral character, is

authorized to teach these branches in any common school within this county.

Superintendent of Public Instruction, County.

190

Public Education

Chapter, 40y

§ 79. Form of deed of school property may be as follows:

This indenture, made the day Of one thooswid eiciit hundred aivl . ^ . . . .between

and and his wife, of the county of

Dakota Territory, parties of the first part, and of district board of district

number county and territory aforesaid, parties of the second part, witnesseth, that

the said parties of the first part, ixi consideration of dollars to them in hand paid before

the delivery thereof, have bargained and sold, and by these presents do grant and convey^ to the
said parties of the second part, their successors in office and assigns forever (here describe the
property) with the appurtenances and all the estate, title and interest of the said parties of the
first part, do hereby covenant and aeree with the said parties of the second part, that at the time
of the deliveiT hereof, the said parties of the first part were the lawful owners of the premises
above granted and seized thereof in fee simple absolute, and they will warrant and defend the
above granted premises in the peaceful possession of the said parties of the second part, their
successors and assigns forever.

Sealed and delivered in presence of [srai..]

[SEAT J

Territory of Dakota, )
County. )

Personally appeared before me, a within and for the county above named

and his wife, to me known to be the persons, whose names are afi\zed to the

above deed as grantors, and acknowledged the same to be their voluntary act and deed ; and the

said being at the same time by me made acquainted with the contents of the above

deed apart from her husband, acknowledged that she executed the same voluntarily, and that
she is still satisfied therewith.

Witness my hand and seal this day of A. D. 18. . . .

§ 80, Repeal, effect of.] Chapter forty of the session laws of
1875, and all acts and parts of acts heretofore passed in relation to
common schools, are hereby repealed; Provided^ That* such repeal
shall not effect any rights or liabilities that have accrued under and by
virtue of said act or acts; And provided further y That all officers that
have been duly elected and qualified in accordance with the pro-
visions of said act, shall continue to hold and discharge the duties of
their respective offices until their successors are duly elected and
qualified.

§ 81. Immediate effect — limitation.] This act shall take effect
from and after its passage and approval; Provided, however. That
nothing herein contained shall be construed so as to interfere in any
manner with the provisions of an act passed at the recent session of
the legislative assembly establishing a board of education for the city
of Yankton, regulating the management of the public schools therein.

Approved, February 17, 1877.

^

Chapter 41. Peotection of Birds. 191

CHAPTER XLI.

^OJ^ G^QOoJc?C Ux.^4 ^ -^i^l ^%tx, * "^^^^ ^-^N

Protection of Birds.

AN ACT for the Protection of Game.

§ L Unlawful to sell.] Be it enacted by the Legislative Assembly
of tM Territory of Dakota^ That it shall be unlawful for any person or

S arsons to kill, ensnare, or trap in any form or manner, or by any
evice whatsoever, for the purpose of sale, trade, or traffic, any quail,
prairie chicken, grouse, plover, snipe, or curlew, at any time.

§ 2. Unlawful to kill at certain times.] Tha£ it shall be unlaw-
ful for any person or persons to kill, ensnare, or trap in any form or
manner, or by any device whatsoever, any quail, prairie chicken, grouse,
snipe, plover, or curlew, between the first day of January and the
fifteenth day of August in each and every year.

§ 3. Unlawful to kill on other's premises.] That it shall be
unlawful for any person or persons to kill, ensnare, or traj) in any form
or manner, or by any device whatsoever, any quail, prairie chicken,
grouse, snipe, plover, or curlew, on any premises owned or occupied
by any other person or persons, without the consent of such person or
persons.

§ 4. Penalty for violation.] Any person or persons who shall
violate section one, two, or three of this act, and every person or cor-
poration, or any employe thereof, who shall sell, expose for sale, or
shall have in his or their possession or custody, with intent to sell,
dispose of, or transport, any quail, prairie chicken, grouse, snipe,
plover, or curlew, shall be deemed guilty of a misdemeanor, and, upon
conviction thereo£ be fined two dollars for each such quail, prairie
chicken, grouse, snipe, plover, or curlew so killed, destroyed, taken,
sold, exposed for sale, or had in possession for transportation, together
with costs of prosecution. tL , % f t»i . J^ji |

§ 5. Repeal of former act.] Chapter forty-nine of the eleventh gen-
eral assembly being "an act making it unlawful to kill quail during
certain months," approved, January 15th, 1875, is hereby repealed.

§ 6. Immediate effect.] This act shall take effect and be in force
from and after its passage and approval.

Approved, February lo, 1877.

19S County Boundaries and Organization. Chapter 42.

CHAPTER XLII.

♦ ^

County Boundaries' and Organizatidto..

AN ACT to define the boundaries of and name certain counties in the Territory of DakotA.

§ 1. Custer county defined.] Be it enacted by the Legislative Ai^sem-
hly of the Territory of Dakota, That the county of tluster shalj be
bounded as follows: Commencing at the northwest corner of Forsythe
county where the west fork of the Big Cheyenne river intersects the
boundary line dividing the territory of Dakota and the territorj^ of
Wyoming; and running thence north along said boundary line to a
point ten (10) miles south of the point where the forty-fourth parallel
of north latitude intersects said boundary line; thence east in a direct
line to the channel of the South Fork of the Big Cheyenne river; thence
southwesterly along said channel of the South Fork of the Big Chej-
enne and the northern boundary of the county of Forsythe to the place
of beginning.

§ 2. Pennington county.] That the county of Pennington shall be
bounded and described as follows: Commencing at a point where the
forty-fourth parallel of north latitude intersects the boundary line
dividing the territory of Dakota and the territory of Wyoming; thence
running north along said boundary line ten (10) miles; thence east in
a direct line to the channel of the South Fork of the Big Cheyenne
river; thence southerly along said channel of the South Fork to the
point where the northern boundary line of Custer county intersects the
said South Fork of the Big Cheyenne ; thence west along the northern
boundary of Custer county to the boundary line dividing the territory
of Dakota and the territory of Wyoming; thence north along said
boundary line ten (10) miles to the place of beginning.

§ 3. Lawrence county.] That the county of Lawrence shall be
bounded and described as follows: Commencing at a point on the
boundary line dividing the teWtdry of Dakota and the territory of
Wyoming, at the northwest comer of Pennington county; thence east
along the northern boundary of Pennington county to its intersection
with the channel of the South Fork of the Big Cheyenne; thence
northerly along said South Fork to its confluence with the Belle
Fourche river; thence running northwesterly along said Belle Fourche
and East Fork of the Big Cheyenne river to the point where the said
East Fork, or Red Water, intersects the boundary line dividing the
territory of Dakota and the territory of Wyoming; thence south along
said boundary line to the place of beginning.

§ 4. Ziebach county.] That all that part of the county of Penning-
ton as laid down and described in section 6, chapter 29, laws of 1874
and 1875, as is not included within the metes and bounds, as described
in section two of this act, be made a separate county, and the same to
be called Ziebach county.

Chapter 42. County Boundaries and Organization. 193

§ 5. Boundaries modified.] The boundaries of the counties of
Custer and Lawrence are hereby modified and corrected in accordance
with the provisions af this act.

§ 6. Governor appoints officers.] The governor is hereby author-
ize, and it is made his duty, when the country embraced within said
counties herein described comes under the jurisdiction of this territory,
or as soon as practicable, and he can obtain the necessary information
after the passage and approval of this act, and without the petition ot
voters otherwise required, to appoint for each of said counties three
county commissioners, who shall constitute the board of county
commissioners, one register of deeds, one sheriff, one treasurer, one
judge of the probate court, and one assessor; and said officers, so
appointed, shall hold their offices respectively until their successors
shall be elected and qualified according to law.

§ 7. Officers qualify.] Immediately after the appointment the
said commissioners for each of said counties respectively shall meet at
a place within their county, to be agreed upon, and elect one of their
number chairman of the board, who shall immediately administer
the oath of office to the other commissioners, and one of them shall
then administer the like oath to him. The chairman shall then
administer the oath of office to the judge of the probate courts and he is
then authorized and required to administer the like oath to each of
the other officers herein authorized to be appointed. Said oaths shall
be in writing, and certified by the person or officer administering them
and must be filed in the office of the register of deeds for the county.
Such officers must each thereafter, and as early as practicable, give the
bond as required by law, and shall immediately enter upon the dis-
charge of tneir respective duties according to law.

§ 8. Boards appoint— special election — terms.] Said board of
county commissioners for each county is hereby authorized to appoint
all other officers authorized by law for said counties, except justices
of the peace, and they shall qualify as required by law. The said
boards shall also cause an election to be held in each of their
counties respectively, upon notice, to be posted in writiuff, not less
than twenty days before said election, in five public places in the county,
for the election of four justices of the peace in each county, which
election shall be held, and the returns thereof made, as provided by
the election law of the territory; except that the returns must be made to
the register of deeds within six days, and the canvass thereof within
ten days after said election; and the justices of the peace so elected may
qualify as provided by law, immediately, or as soon as practicable
after their election, and shall enter upon their duties at once. Such
justices shall hold their offices until tneir successors shall be elected at
the ffeneral election in 1877, and shall qualify.

§ 9. Quorum op board, olerk and record.] Any two commissioners
appointed as herein provided, shall constitute a quorum, and may per-
form all the acts required to all legal intents and purposes, the same
as if the three were present and actina;; and the register of deeds so
appointed shall be, ex-officio, county clerk, and act as such; and the
said board of county commissioners must make a journal, and preserve
the official record of their proceedings from the first, according
to law.

18

194 County Bodkdabies and OfiaANizATiON. Chapter 42.

§ 10. Effect — other laws apply.] This act shall take eflfect and
be in force from and after its passage and approval, and it amends and
modifies all acts and parts of acts inconsistent with its provisions, so
far only as it is necessary to carry this act into eflfect, but all other such
acts, except those bounding and defining counties herein defined, are
in force, except so far as this act governs and takes the place of other
law.

Approved, February 10, 1877.

an act changing the Boundaries of the County of Hamlin, creating the Couiity of Coding-
ton, and for other purposes.

§ 1. Hamlin county defined.] Be it enacted by the Legislative
Assembly of the Territory of Dakota, That the boundaries of the county
of Hamlin be and the same are hereby changed arid modified, so that
hereafter the said county of Hamlin shall be bounded as follows, to
wit: Beginning at the southwest corner of Duel county; thence north
along the west line of said county of Duel to the northeast comer of
township one hundred and fifteen, of range fifty-one; thence west,
along the line between townships one hundred and fifteen and one
hundred and sixteen, to the northwest corner of township one hundred
and fifteen, of range fifty-five; thence south along the line between
ranges fifty-five and fifty-six to the north line of Wood county; thence
east along the north line of the said county of Wood to the northwest
comer of the county of Brookings; thence east along the north line of
said county of Brookings to the place of beginning.

§ 2. Codington county bounded.] That all that district of county
included within the following boundaries, to wit: Beginning at the
northeast comer of the county of Hamlin, as bounded in the last sec-
tion; thence north along the line between ranges fifty and fifty-one, to
the northeast corner of township one hftindred and nineteen, of range
fifty-one; thence west along the line between townships one hundred
and nineteen and one hundred and twenty, crossing the Wahpeton and
Sisseton Indian reservation in the same course, and continuing in
same coui-se to the northwest comer of township one hundred and
nineteen, of range fifty-five; thence south along the line between ranges
fifty-five and fifty-six, to the northwest corner of the said county of
Hamlin; thence east along the north line of said county of Hamlin to
the place of beginning, be and the same is hereby made and consti-
tuted the county of Codington.

§ 3. Grant and clark counties modified.] The boundaries of the
counties of Grant and Clark are hereby changed and modified to con-
form with the provisions of this act.

§ 4. Repeal.] All acts and parts of acts, so far as they conflict
with the provisions of this act, are hereby repealed.

§ 5. Immediate effect.] That this act shall take effect and be in
force from and after its passage and approval.

Approved, February Id, 1877.

Chapter 43. Pdblioation of Laws. 195

CHAPTER XLIII.

Publication of Laws.

AN ACT making Appropriatious for the j^urpoee of publishing the Laws of Dakota Territory
passed at the twelfui session of the Legislative Assembly, and reimburse £. A. Sherman for*
expenses incurred as a witness for attendance before the committee of Ways and Means.

§ 1, Five thousand dollars to print laws.] Be it enacted by the
Legislative Assembly of the Territory of Dakota^ There is hereby
appropriated, from any funds in the territorial treasury not .otherwise
appropriated, the sum of five thousand dollars, the same to be paid in
territorial warrants at their par value, for the purpose of printing,
indexing and binding, one thousand copies of the laws of the Territory
of Dakota, passed at the twelfUi session of the legislative assembly;
and the printing of said laws shall be under the sole and exclusive
management and control of the secretary of said territory, and any
and all moneys which may be appropriated by congress for the pur-
pose of printing said laws, shall be used for the purpose of reimbursing
the territory, and shall be paid into the territorial treasury for such
purpose and no other.

§ 2. What L.iws to be printed.] There shall only be published
the general laws and public acts of the territory, passed at said twelfth
session of the legislative assembly, after the same shall have been
approved by the governor.

§ 3. WrrNBss fees reimbursed.] There is hereby appropriated fropi
any funds in the territorial treasury, not otherwise appropriated, the
sum of twenty dollars, to be paid by territorial warrants, to E. A.
Sherman, to reimburse him for expenses incurred as a witness before
the ways and means committee, by order of the house of representa-
tives.

§ 4. Immediate effect.] This act shall take effect and be in force
on and after its passage and approval.

Approved, February 17, 187*

\ -

196 Territorial OpFicEks -Repeal Bond Act. Chapters 44-^'.

CHAPTER XLIV.

Legalizing Acts of Territorial OfB.cers.

AN ACT to Legalize the Official Acts of certain Territorial Officers therein named.

§ 1. Act op elected territorial officers lbgalizbd.] Be it enacted
by the Legislative Assembly of the Terrilofy of Dakota, That the official
acts of the persons who liave from time to time, since the first organ-
ization of the territory, held the offices of territorial auditor, territorial
treasurer, territorial superintendent of public instruction, territorial
superintendent of immigration, and territorial commissioner of immi-
gration, by authority of election by the people, under any territorial
laws, be and the same are hereby confirmed and legalized, and the
same shall be deemed and held as valid and binding as though the said
officers had been nominated by the governor, by and with the consent
of the territorial council.

§ 2. Immediate effect.] This act shall take effect and be in force
from and aft6r its passage and approval.

Approved, Febniary ll, 1877.

CHAPTER XLV.

Repeal of Relief Bond Act.

AN ACT relative to Territorial Bonds.

§ 1. Grasshopper-bond act repealed.] Be it enacted by the Legisla-
tive Assembly of the Territory of Dakota^ That the act passed the 1 5th
day of January, 1875, by the legislative assembly of tpe Territorj^ ot
Dakota, beine chapter twenty-tour, entitled "an act to provide assist-
ance and seed grain to those settlers in the territory who are needing
aid by reason of a failure of crops," be and the same is hereby repealed.

§ 2. This act shall take effect and be in force from and after its
passage and approval.

Approved, January 24, 1877.

Chapter 4S.

DuriNrifG JuDioiAX Diateiots.

m

CHAPTER XL VI.

Defining Judicial Districts.

AN ACT to Establish the Boundaricii of the Judicial Districts of this Territory.

§ 1. PiRSt DISTRICT BOUNDARIES.) Be if enacted by the Legislative
Assembly of the Territory of Dakota^ All that portion of the territory
of Dakota west of the right bank of the Missouri river at low water
mark, and south of the forty-sixth parallel of latitude, shall constitute
the first judicial district.

§ 2. Second district.] All that portion of this territory north of
the forty-sixth parallel of latitude sliall constitute the third judicial
district.

§ 3. Third district.] All that portion of this territory not
embraced in the first and third judicial districts shall constitute the
second judicial district.

§ 4. Pending oases.] All criminal cases in which the United States
is a party, shall be tried and disposed of in the court of the district in
which they are now pending, unless the place of trial shall be changed
as provided by law.

§5. Location of court in third district.] That -the district court
in and for the third judicial district shall be held at Bismarck, in the
county of Burleigh, on the second Tuesday of April and third Tues-
day of September of each year.

§ 6. Location of Second district court.] The district court in
and for the second judicial district shall be held at Yankton, in Yank-
ton county, on the second Tuesday of March and November of each
year.

§ 7. Location of first district court.] The district court in and
for the first judicial district shall be held at the county seat of Pen-
nington county on the first Tuesday of May and October of each year.

§8. United states jurisdiction.] The district courts mentioned
in this act shall exercise the power appertaining to district and circuit
courts of the United States for the several districts in which they are
located.

§ 9. Repeal of acts.] Chapter fifty-five, laws 1874-5, and all acts
and parts of acts in conflict with the provisions of this act, are hereby
repealed.

§10. Effect ON contingency.] Xhis act shall take effect and be
in force from and after its passage and approval, and the ratification
by congress of the agreement with the Sioux Indians ceding the Black
Hills.

Approved, February 15th. 1877.

198 Defining Jttdioial Disteiots. Chapter 46.

SUPPLEMENTAL ACT.

AN ACT supplemental to *'An Act establiBhin^the boundaries of the Judicial Districts of this

Territory," passed at the Twelfth Legislative Session.

■

§ 1. Part op borbman county in "mle third district.] Be it enacted
by the Legislative Assembly of the Territory of Dakota, All that portion
of the county of Boreman lying north of Grand river shall be em-
braced within, and it is hereby made a part o^ the third judicial
district.

§ 2. Addition to second district.] The counties of Todd, Gregory,
Lyman and Presho are attached to and made a part of the second
judicial district. •

§ 3. Location op pirst district court.] The district court within
and for the first judicial district shall be held at the county seat of
Pennington county, on the fourth Tuesday of lilay and the second
Tuesday of September in each year.

§ 4. Location op third district court.] The district court within
and for the third judicial district shall be held at Bismarck on the third
Tuesday of April and the second Tuesday of October in each year.

§ 5. Certain terms authorized.] Nothing contained in this act, nor
the one to which it is supplemental, shall be construed as to prevent
the holding of the courts within and for the first and second judicial
districts in February and April respectively of the present year, as
provided for in chapters fifty-five and fifty-six of the session laws of
1874-5, but said terms shall be held as therein pr6vided.

§ 6. Construction and force of act.] This act shall be construed in
connection with the act to establish the boundaries of the judicial dis-
tricts of this territory, passed at the present session, which is so far
modified and amended as to allow this act to have full force and effect,
and no further.

§ 7. Effect contingent.] This act shall take effect and be in force
from and after its passage and approval by the governor, and the rati-
ficatioh by congress of the agreement with the Sioux Indians ceding
the Black Hills.

Approved, February 17, 1877.

Chapter 47. Contests of Lbgiblative Elbotions. 199

CHAPTEIi XL VII.

Contests of Legislative Elections.

AN ACT to Regulate the Mode of Procedure in Cases of Contested Elections of Members of

the Legislative Assembly.

§ 1. Notice of oontbst.] Be it enacted hy the Legislative Asseynbly
of the Territory of Dakota, Whenever any person intends to contest
an election of any member of the legislative assembly of the Territory
of Dakota, he may within ten days after the result of such election
shall have been determined by the officers or board of canvassers,
authorized by law to determine the same, give notice in writing to the
member whose seat he designs to contest, of his intention to contest
the same, and in such notice shall specify particularly the grounds
upon which he relies in the contest.

§ 2. Answer of notice.] Any member upon whom the notice
mentioned in the preceding section, may be served, shall, within ten
days after the service thereof, answer such notice, admitting or deny-
ing the facts alleged therein, and stating specifically any other grounds
upon which he rests the validity of his election, and shall serve a
copy of his answer in the contest; and all allegations set forth in the
notice not denied in the answer shall be taken as admitted.

§ 3. Periods for canvass limited.] In all elections in any council
or representative district, at which any member of the legislative
assembly is elected, the officers or board of canvassers whose duties it
is to canvass the returns of said district, shall do so within twenty
days from said election, and the canvass for county officers shall take
place within fifteen days after said election ; and sections thirty-one
and thirty-six, of chapter seventeen, approved, January 13th, 1871,
being an act entitled "an act providing for elections and to prescribe
the canvass and return of the same," is hereby amended accordingly.

§ 4. Testimony when taken.] In all contested election cases the
contestant may begin to take testimony as soon as the notice specified
in section one is served; and the returned member may take testimony
as soon as his answer is served; and both parties to said contest may
continue to take testimony for ten days after the time for serving the
answer of the returned member has expired, after which time the con-
testant may take testimony in rebuttal only for five days.

S 5. Depositions. — notice how served.] The party desiring to take
a deposition under the provisions of this chapter, shall give the oppo-
site party notice in writing of the time and place when and where the
same will be taken, of the names of the witnesses to be examined, and
their place of residence, and the name of an officer before whom the
same will be taken. The notice shall be personally served upon the
opposite party, or by any agent or attorney authorized by him to take
testimony or cross-examine witnesses in the matter of such contest. If
by the use of reasonable diligence personal service cannot be made, the

200 Contests op Legislativb Elections. Chapter 47.

service may be made by leaving a copy of the notice at the usual place
of abode of the opposite party. The notice shall be served so as to
allo^g the opposite party sufl&cient time by the usual routes of travel to
attend, and one day for preparation, exclusive of Sundays and the day
of service.

§ 6. Places to take testimony.] Testimony on contested election
cases under this chapter shall not be taken at more than two places at
the same time by either party.

§ 7. Subpoenas applied for.] When any contestant or returned
member is desirous of obtaining testimony respecting a contested
election, he may apply forv a subpoena to any oflBicer having a seal, or
any justice of the peace for any county where the testimony is to be
taken.

§ 8. Subpcenas authorized.] The officer to whom the application
authorized by the preceding section is made, shall thereupon issue his
writ of subpoena directed to all such witnesses as shall oe named to
him, requiring their attendance before him at some time and place
named in the subpoena, in order to be examined respecting the con-
tested election.

§ 9. Depositions without notice.] It shall be competent for the
parties, their agents or attorneys authorized to act in the premises, by
consent in writing, to take depositions without notice. Any written
consent given as aforesaid shall be returned with the depositions.

§ 10. SuBPCENA served.] Each witness shall be duly served with a
subpoena by a copy thereof, delivered to him or at his place of abode.

§ 11. Attendance only in county.] No witness shall be required to
attend an examination out of the county in which he may reside, or be
served with a subpoena.

§ 12. Penalty for failure.] Any person who, having been sum-
moned in the manner above described, refuses or neglects to attend
and testify, unless prevented by sickness or unavoidable necessity, shall
forfeit the sum of twenty dollars, to be recovered with costs of suit, by
the party at whose instance the subpoena was issued, and for his use,
by action of debt, and shall also be liable to an indictment for a mis-
demeanor and punishment by fine and imprisonment.

§ 13. Non-resident witnesses.] Depositions of witnesses residing
outside of the district and beyond the reach of subpoena may be taken
before an officer authorized to take testimony in civil actions.

§ 14. Examination of witnesses.] All witnesses who attend in
obedience to a subpoena, or who attend voluntarily at the time and
place appointed, of whose examination notice has been given, as pro-
vided by this chapter, shall then and there be examined on oath by
the officer who issued the subpoena; or, in case of his absence, by any
other officer who is authorized to issue such subpoena, or by the officer
before whom the depositions are to be taken by written consent, as the
case may be, touching all such matters respecting the election about
to be contested as shall be proposed by eitner of the parties, or their
agents or attorneys.

§ 16. Evidence confined to issue.] The testimony to be taken by
either party to the contest shall be confined to the proof or disproof of
the facts alleged or denied in the notice and answer mentioned in sec-
tions one and two of this chapter.

Chapter 47. C!onte8T8 of Legislative Elections. 201

§ 16. Testimony written.] The officer shall cause the testimony of
the witnesses to be reduced to writing in his presence, and in the

Sresence of the parties, or their agents or attorneys, if attending, to be
uly attested by the witnesses respectively.

§ 17. Production of papers.] The officer before whom any deposi-
tion is taken shall have power to require the production of papers; and *
on the refusal or neglect of any person to produce and deliver up any

Saper or papers in his possession pertaining to the election, or to pro-
uce certified or sworn copies of the same, m case they may be official
papers, such person shall be liable to all the penalties prescribed in
section twelve. All papers thus produced, and all certified or sworn
copies of official papers, shall be transmitted by the officer, with the
testimony of the witnesses, to the secretary of the territory for the
use of the legislative assembly.

§ 18. Adjournments.] The taking of the testimony may, if so stated
in the notice, be adjourned from day to day.

§ 19. Documents to be attached.] The notice to take depositions
with the proof or acknowledgment of the service thereof, and a copy
of the subpcena, where any has been served, shall be attached to the
deposition, when completed, together with a copy of the notice of con-
test, and answer of the returned member, which shall be annexed to
the depositions taken and transmitted with them to the secretary of
the territory.

§ 20. Transmitted to secretary.] All parties taking testimony to
be used in a contested election case, when the taking of the same
is completed, and without unnecessary delay, shall certify and care-
fully seal and forward the same to the secretary of the territory, by
mail, at Yankton, Dakota Territory, and shall .indorse on the same the
title of the same; and the secretary is hereby authorized to open the
same at the instance of either party, his agent or attorney.

§ 21. Fees of officers and witnesses.] Every witness attending
by virtue of any subpoena herein directed to be issued, and all officers
who may be employed in taking testimony in contested election cases
under this chapter, or serving any subpoena or notice herein authqr-
ized, shall be entitled to receive from the party at whose instance the
service or attendance shall have been performed, such fees as are
allowed for similar service in civil actions in courts of record in this
territory.

§ 22. No LBQ-iSLATivE EXPENSE.] No payment shall be made by the
legislative assembly out of its contingent fund or otherwise to either
party to a contested election case for expenses incurred in prosecuting
or defending the same.

§ 23. Immediate effect.] This act shall take effect and be in force
from and after its passage and approval.

Approved, February 16, 1877.

202 Legislative Apportionment. Chapter 48.

CHAPTEK XLVIII.

Ov.^ -i.vv IS Legislative Apportionment.

AN ACT to Apportion the Representation of the Legislative Assembly.

§ 1. First district, union county.) Be it efiadedby the Legislative
Assembly of the Territory of Dakota, The county of Union shall con-
stitute the first council and representative district, and shall be
entitled to two members of the council ^-nd four members of the house
of representatives.

§ 2. Second district, clay county.) The county of Clay shall con-
stitute the second council and representative district, and shall be
entitled to one member of the council and four members of the house
of representatives.

§ 3. Third district, yankton county.] The county of Yankton
shall constitute the third council and representative district, and shall
be entitled to two members of the council and four members of the
house of representatives.

§ 4. Fourth district, bon homme county.) The county of Bon
Homme shall constitute the fourth council and representative district,
and shall be entitled to one member of the council and one member
of the house of representatives.

§ 5. Fifth district, Lincoln and turner counties.] The counties
of Lincoln and Turner shall constitute the fifth council and repre-
sentative district, and shall be entitled to two members of the council
and three members of the house of representatives.

§ 6. Sixth district, minnehaha county.] The county of Minne-
haha shall constitute the sixth council and representative district, and
shall be entitled to one member of the council and two members of .
the house of representatives.

§ 7. Seventh district, cass, richland, &o.] The counties of Cass,
Richland, Ransom, Barnes, and Stutsman shall constitute the seventh
council and representative district, and shall be entitled to one member
of the council and one member of the house of representatives.

§ 8. Eighth district, orand forks and pembina counties.] The
counties of Pembina and Grand Forks shall constitute the eighth
council district, and be entitled to one member of the council.

§ 9. Ninth district, burlbigh and ste vens counties. ] The counties
of Burleigh and Stevens shall constitute the ninth council and represen-
tative district, and shall be entitled to one member of the council
and one member of the house of representatives.

§ 10. Tenth district, hutohinson, Armstrong, &c.] That the coun-
ties of Hutchinson, Armstrong, Hanson, and Davidson shall constitute
the tenth representative district, and shall be entitled to one member
of the house of representatives.

§ 1 1. Eleventh district, brookings, lake, &o.] That the counties of
Brookings, Lake, and Moody shall constitute the eleventh representa-

i

Chapter 48. Lkotslativb Apportionment, 208

tive district, and shall be entitled to two members of the house of
representatives.

§ 12. Twelfth — tbaill county.] The county of Traill shall con-
stitute the twelfth representative district and shall be entitled to one
member of the house of representatives.

§ 13. Thirteenth — pennington, ouster, &c.] The counties of Law-
rence, Pennington, and Custer shall constitute the thirteenth council
and representative district, and shall be entitled to one member of the
council and two members of the house of representatives. The coun-
ties of Charles Mix, including the Yankton reservation, Brule, Hyde,
Hughes, Buifalo, and Sully, are attached to the thirteenth council and
representative district for election purposes.

§ 14, Ip territory divided.] In case of a division of the Territory
of Dakota by congress, by the formation of a new territory out of the
northern portion thereof, and the ratification of the agreement for
ceding the Black Hills by congress, in addition to the representation
given by the preceding section, there shall be allowed to the county
of Lawrence one member of the council and two members of the
house of representatives, and there shall be allowed the counties of
Penninffton and Custer, two members of the council and one member
of the house of representatives.

§ 15. Contingent additions.] In case of the division of the Terri-
tory of Dakota, by the formation of a new territory from the northern
portion thereof, there shall be allowed, in addition to the representa-
tion provided for by this act, one member of the house of representa-
tives to the counties of Lincoln and Turner, one member of the coun-
cil to the county of IVIinnehaha, one member of the council to the
county of Yankton, one member of the council to the county of Clay,
one member of the house of representatives to the county of Bon
Homme, and one member of the house of representatives to the
county of Union; and if, at the time of the general election in 1878,
the district of the Black Hills should not be under the jurisdiction of
the Territory of Dakota, then the representatives named in section
thirteen shall be distributed as follows: one member of the house of
representatives to the county of Union, one member of the council to
the county of Yankton, and one member of the house of representa-
tives to the counties of Hutchinson, Armstrong, Hanson, and Davidson.

§ 16. Immediate effect.] This act shall take effect and be in force
from and after its passage and approval by the governor.

Approved, February 17, 1877.

204 Real Estatb of Relioious Bodies. ChapUr 4:9.

CHAPTER XLIX.

Real Estate of Religions Bodies.

«

AN ACT relative , to the Holding and transferrine of Real Estate by any legal OflBcer of a

Religious Society and their tiuccessors in Office.

§ 1. Title vests in successors, in trust.] Be it enacted by the
Legislative Assembly of the Territory of Dakota, That all grants or
deeds from private individuals, or acts of legislative bodies, transfef-
ring, conveying, or granting real estate in this terntory to any bishop,
dean, rector, vestryman, deacon, director, minister, or any other officer
or officers of any church or organized religious society, in trust for the
use and benefit of such society of which they are such officer or officers,
which have been or may be made, done or executed, shall vest in their
successor or successors in office, or other officer which such society
may at any time designate, all the legal or other title, to the same
extent and in all respects the same, as trustee of such trust, for the
use and benefit of such society, which such bishop, dean, rector, vestry-
man, deacon, director, minister, or other officer or officers, had under
such grant, deed, or act; and all transfers or sales made by such officer
or officers so acquiring title by virtue of this act by succession in office
shall have all the validity, force and effect that it would have had, had
it been made by such bishop, dean, rector, vestryman, deacon, director,
minister, or other officer or officers, while holding under and by virtue
of such grant, deed, or act of such legislative body.

{^ 2. Immediate effect.] This act shall take enect and be in force
from and after its passage and approval by the governor.

Approved, January 11, 1871.

Chapter 50. Registration of Warrants. 205

CHAPTER L.

Registration of Warrants.

i

A.N ACT to Provide for the Registration of Warrants and Regulating the Order of Paying the

Same.

§ 1. Obdbr of payment.] Be it enacted by the Legislative Assembly
of the Territory of Dakota, That all warrants upon the territorial treas-
urer, the treasurer of any county, or any municipal corporation therein,
issued after January first, 1875, shall be paid in the order of their pre-
sentation therefor.

§ 2. Warrant register — entries.] The territorial treasurer and
the treasurer of every organized county, and every incorporated city
or town therein, shall provide himself with, and keep a warrant regis-
ter, which register shall show in a column arranged for that purpose,
the number, aate, and amount of each warrant presented, the particu-
lar fund upon which the same is drawn, the date of presentation, the
name and address of the person to whose name the same is registered,
the date of payment when made, the amount of interest, and the total
amount paid thereon, with the date w^hen notice to the pei-son in whose
name such warrant is registered, is mailed as hereinafter provided.

§ 3. Duty of officer — ^feb.J It shall be the duty oi every such
treasurer, upon the payment of a fee of ten cents, when the amount is
less than twenty-flve dollars, and twenty-five cents if over that amount,
by the holder of any warranty or by any person presenting the same
for registration, in the presence of such person, to enter such warrant
in his warrant register for payment in the order of presentation for
registration^ and upon ev^ry warrant so registered he shall endorse
" registered for pay^nent^" with the dajbe of such registration, and shall
sign such endorsement; Provided, That nothing m this act shall be
construed to require the holder of any vj^arrant to register the same, or
to modify or repeal the law as it now is relatim? to presentation and
endorsement if " not paid for want of funds " an^ interest thereafter.

§ 4. Funds set aside in sealed package.] It shall be the duty of
every such treasurer to set aside, in a special and sealed package, the
money for the payment of each registered warrant in the order of
its registration, as soon as money sufficient for the payment of such
warrant is received to the credit of the particular fund upon which
such warrant is drawn. Such package shall be indorsed with the
number and description of such warrant, and the name and address
of the person to whose name the same is registered, and interest
upon such warrant shall thereupon cease, and such treasurer shall,
by mail, immediately notify the person in whose name the same is
registered, and shall indorse the date of the mailing of such notice
upon such sealed package, and shall pay over to the party holding
such warrant such sum when called for. uU A^^ A, \i\% v

206 Begistbation op Warrants. Chapter 50.

§ 5. Daily footing of receipts.] Every such treasurer shall daily,
as moneys are received, foot the several columns of his cash book,
and of his register, and carry the amounts forward, and at the close
of each year, in case the amount of money received by such treasurer
is insufficient to pay the warrants so registered, he shall close the
account for that year in such register, and shall carry forward the
excess.

§ 6. Failure Of officer — forfeiture.] Any such treasurer who
shall fail regularly to enter upon his cash book the amounts so received,
or who shall fail to keep his cash book footed from day to day, as
required by this act, for the space of three days, shall forfeit for each
offense the sum of one hundred dollars, to be recovered in a civil
action on his official bond, by any person holding a warrant drawn on
such treasurer.

§ 7. Inspection of books.] The cash book and register of every
such treasurer shall at all times be open to the inspection of any per-
son in whose name any warrant is registered and unpaid.

§ 8. Failure to mail notice — penalty.] Any treasurer who shall,
for the period of five days after moneys m amount sufficient to pay
any registered warrant in its order have been received, fail to mail
notice thereof to the person registering such warrant, shall forfeit to
such person ten per cent, on the amount of such warranty and ten per
cent, additional for every thirty days thereafter during which such
failure shall continue.

§ 9. Penalty on bond.] Any such treasurer who shall fail to regis-
ter any warrant in the order of its presentation therefor, or shall fail
to pay the same in the order of its registration, shall be liable on his
official bdnd to each and every pferson, the payment of whose warrant
is thereby postponed, in the sum of three hundred dollars, to be recov-
ered in a civil action.

§ 10. Repeal.] All acts and parts of acts inconsistent with the
provisions of this act are hereby repealed.

§ 11. Warrants for taxes.] Nothing in this act shall be so con-
strued as to prevent payment of taxes in warrants as now provided
by law ; Provided, further, That this act shall not apply to the counties
of Minnehaha and Union.

§ 12. Immediate effect.] This act shall take effect and be in force
from and after its passage- and approval.

Approved, January 14, 1875.

CIVIL CODE.

AN ACT to proride a Ciril Code for the Territory of Dakota.

§ 1. Title of code.] Be it enacted by the Legislative Assembly of the
Territory of Dakota. This act shall be known as the civil code of the
Territory of Dakota.

§ 2. Origin of law.] Law is a rule of property and of conduct
prescribed by the sovereign power.

% 3. Expression of law.] The will of the si)\ oi^if^n power is
expressed :

1. By the organic act passed by congress,
government in this territory, and vesting the legi J
governor and a legislative assembly, and extendi

subjects of legislation consistent with the constitB

States and that act. pSIT.

2. By other statutes enacted by congress, or ny the legislati\
assembly.

3. By the ordinances of other and subordiintlr li';^8lative bodies.
§ 4. Common law divided.] The common l;i\\ is divided into:

1. Public law, or the law of nations.

2. Domestic, or municipal law,

§ 5. Evidence of same.] The evidence of thf cnniiiion hiw is fnun<l
in the decisions of the tribunals.

§ 6. Codes exclude common law.] In this territory there is no
common law in any case where the law is declared by the codes.

% 7. Two CLASSES CIVIL RIGHTS.] All original civil rights are either;

1. Rights of ijerson; or,

2. Rirfits of property.

§ 8. Rights — how waived.] Rights of property and of person
may be waived, surrendered, or lost by neglect, m the cases provided
by law.

§ 9. Code divisions.] This code has four general divisions:

1. The' first relates to persons;

2. The second to property;

3. The third to obligations;

4. The fourth contains general provisions relating to persons,
property and obligations.

DIVISION FIRST.

PERSONS.

Paet I. Persons.

II. Personal rights.
III. Personal relations.

PART I.

Persons.

§ 10. JIiNijRiTT !>EFi.\KD.] Mlnors are:

1. Male.-^ under ftftfnty-ime years of age.

2. Feiiiiilrs under fMi,'iiir.^n years of use.

Till' [H'lifiiU trhus 8]i('iiii<'i must be calculated from the first minute
of tlif day on which juixms are born, to the same minute of the cor-
responding day comiilctiiii; the period of minority.

S 1 1. Adults.) All otlur persons are adults.

§ 13. Unborn oHii-D, I \ child conceived but not bom, is to Iw
deemed an existing !'fi-;(in so far as may be necessary for ifei interests
in the event ofits'^iil>si'.|iH'nt birth.

I 13, T'NMtmD MIND. I I'ersons of unsound mind, within the mean-
ing ot this co'Il'. ;iie nlii>t-. lunatics, and imbeciles.

111. L'lstudy iif MiNuKs;.] The custody of minors and persons of
unsound mind is regulated by part three of this division.

§ 15. Minors' disability.] A minor cannot give a delegation of
power, nor, under the age of eighteen, make a contract relating to real
property, or any interest therein, or relating to any personal property
not in his immediate possession or control.

§ 16.- Powers — conditional.] A minor may make any other con-
tract, than as above specified, in the same manner as an adult, subject
only to his power of disaffirmance under the provisions of this title,
and subject to the provisions of the titles on marriage, and on master
and servant.

% 17. Minors' contracts.] In all cases otherthan those specifiedin
sections eighteen and nineteen, the contractof a minor, if made whilst he
is under the age of eighteen, may be disaffirmed by the minor himself,
either before his majority or within one year's time afterwards; or, in
case of his d^ath within that period, by his heirs or personal represen-
tatives; and if the contract be made by the minor, whilst he is over
the age of eighteen, it may be disaffirmed in like manner upon
restoring the consideration to the party from whom it was received,
or paying its equivalent, with interest.

Civil Code. Peesons. 209

§ 18. Necessaries ot minor.] A minor cannot disaffirm a contract,
otaerwise valid, to pay the reasonable value of things necessary for
his support, or that of his family, entered into by him when not under
the care of a parent or guardian able to provide for him or them.

§ 19. Statdtoey coNTR^<|rs.]' IVmlnca-caipiot disaffirm an obligation,
otherwise valid, entered into by him under the express authority or
direction of a statute.

§ 20. IniOTs' PowKBS.] ., A ' person eq tire^y without understanding
has no power to make a contract of any kind, bilt he is liable for the
reasonable value of things furnished to him necessary for his support,
or the support of his family.

§21. KESciseioN-l A conveyance or other contract of a person of
unsound mind, btit not entirely without understanding, made before
his incapacity has been jlidically determined, is subject fo rescission as
provided in the chapter of rescission of this code.

§22. Incapacitt detkruined.} After his incapacity ' has been
judicially determined, a person of unsound mind can make no con-
veyance or other contract, nor delegate anj^ power, nor waive any
right, until his restoration to capacity is j'udicially determined. But
if actually restored to capacity, he may nuikp a mil. though his
restoration is not thus determined.

§28. MiKORs' WEDNG8.J A miuor, or a persnn of unsoiind mind, of
whatever degree, is civilly liable for a wrong done by him, in like
manner as any other person.

§24. Damages.] A minor, or person of nn-dund mind, cannot be
subjected to exemplary damages, unless at the time of the act he was
capable of knowing that it was wrongful.

§25. Rights OT ACTtoN.] A minormay enfon'f his rights by civil
action, or other legal proceedings, in the same manner as a person of
full age, except that a guardian ralist be appointed to conduct the
same.

§ 26. Indian eights — disabiutibs.I Indians i-esident within this
territory, have the same rights aiid duties as other persons, except
that:

1. They cannot vote or hold office; and that,

2. They cannot grant, lease or incumber Indian lands, except in the
cases provided by special laws.

210 Pbesonal Rights. Civil Code.

PART II.

Personal Rights

§ 27. G-EHEfiAL PESSONAL RIGHTS.] Besldes the personal rights
mentioned or recognized in the political code, every person has, sub-
ject to the qualifications and restrictions provided by law, the right of
protection from bodily restraint or harm, from personal insult, from
defamation, and from injury to his personal relations.

§ 28. Defamation.] Defamation is effected by:

1. Libel; or,

2. Slander.

g 29. Libel dbpinbd. j Libel is a false and unprivileged publication
by writing, OTiilinK- picture, effigy, or other fixed representation to the
eye, which B.^awes ;iii y person to hatred, contempt, ridicule, or obloquy, or
which cause^im to l>e shunned or avoided, or which has a tendency
to injure him in his occupation.

§ 30. Slanobr.] Slander is a false and unprivileged publication.
other than libel, which:

1. Charges any person with crime, or with having been indicted, con-
victed, or punished IVir crime.

2. Imputes in him the present existence of an infectious, contagious
or loathsome disease.

3. Tends directly tu iajure him in respect to his office, profession,
trade or buainesR. I'itlier by imputing to nim general disqualifications
ip those respects utiich the office or other occupation peculiarly
requires, or by imputing something with reference to his office, pro-
fession, trade or business, that has a natural tendency to lessen its
profit.

4. Imputes to him impotence or want of chastity, or,

5. Which by natural consequence, causes actual damage.

§ 31. pEiviLEOEn COMMUNICATIONS.] A privileged communication
is one made:

1. In the proper discharge of an official duty.

2. In any legislative or judicial proceeding, or in any other
official proceeding authorised by law.

3. In a communication, without malice, to a pei"3on interested
therein, by one who is also interested, or by one who stands in such
relation to the person interested, as to afford a reasonable ground for
supposing the motive for the communication innocent, or who is
requested by the person interested to give the information.

4. By a fair and true report, without malice, of a judicial, legis-
lative or other public official proceeding, or of anything said in the
course thereof.

5. In the cases provided for in subdivisions three and four of
this section, malice is not inferred from the communication or publi-
cation.

Ciril Cotif. Pkbsonal Rblatiors. 211

1 33. OrvBVBKS AGAINST PKBSONAL KKLATioH.] The rights of personal
ration forbid:

t. The abdactioD of a husband from his wife, or of a parent from
his child.

2. The abduction or enticement of a wife ^m her husband, of a
rhild from a parent or from a guardian entitled to its custody, or of a
servant from nis master.

3. The seduction of a wife, daughter, orphan sister, or servant: and,

4. Any injury to a servant, wnich effects his ability to serve his
master.

g 33. Force to peotect.I Any necessary forc« may be used to pro-
tect from wrongful iDJury tlie person or property of oneself, or of a
wife, basband, child, parent, or other relative, or member of one's
■ fiunily. or of a ward, servant, master, or guest.

PA.RT III. ^

Personal Relations.

TITLE I.

HARRUOE. <

CHAPTER I.

THE OOKTRACT OF MARRIAfiE.

Aeticlk I. — Validitt.

§ 34. Marriage contract dbpinxd.} Marriage is a personal rela-
tion arising out of a civil contract, to which the consent of parties
capable of making it is necessary. Consent alone will not constitute
marriage; it must be followed by a solemnization, or by a mutual
assumption of marital rights, duties, or obligations.

g 35. Proof of.] Consent to and subsequent consummation of mar-
riage may be manifested in any form, and may be proved under the
same general rules of evidence as facts in other cases.

§ 36. Lawful age.} Any unmarried male of the age of eighteen
years or upwards, and any unmarried female of the age of fifteen
years or upwards, and not otherwise disqualified, are capable of con-
senting to and consummating marriage.

I 37. Prssbnt C0M8BNT.] The consent to a niarriage must be to
one oHDmencing instantly, and not to an agreement to marry after-
wards.

212 pEftsoNAL Relatioh8. Cifil Code.

^ B8. Inoebtuoub HABBixaas.] Marriages between parents and
children, ancestors and descend? nts of every degree, and between
brothers and sisters of the half as well as the whole bloo4 and
between uncles and nieces, or aunts and nephews, and between cousins
of the half, as well as of the whole blood, are incestuous and void
from the beginning, whether the relationship is legitimate or ill^ti-
mate.

g 39. Voidable mabbiaqbs.] If either party to a marriage be inca-
pable, from physical causes, of entering into the marriage, state, or if
the consent of either be obtained by fraud or force, the marriage is
voidable. Every marriage of a step-father with a step-daughter, or of
a step-mother with a step-son, is illegal and void.

§ 40. Illegal marriage.] A subsequent marriage contracted by
any person during the life of a former husband or wife of such person, .
with any person other than such former husband or wife, is illegal
and void from the be^nning, unless:

1. The former marriage has been annulled or dissolved.

2. Unless such former husband or wife was absent and not known
to such person to be living for the space of five successive years imme-
diately pn'cf'ling t^iich siih>t>(|ii(.'Qt marriage, or was generally reputed
and was lidif^veaby sncli per-innto be dead at the time such subsequent
niarriiif,'e w-d-i contrinttHl; in either of which cases the subsequent
nuii-riniir is valid until its nullity is adjudged by a competent
trihini;i].

S 41. Pardon iwe^ not rf.store.] No pardon, granted after the
approval of this act, t'l ;iny perHon sentenced to imprisonment for life
in this territory, restoips siifh person to the rights of any previous
marriage, or to the yiianiidnship of any issue of such marriage.

% 42. IifDiAN iUrriaoe.] Indians contracting marriage according
to the Indian custom, and cohabiting as husband and wife, are law-
fully married.

% 43. Other law does not apply.] The provisions of other portions
of this code in relation to contracts, and the capacity of persons to
enter into them, have no application to the contract of marriage.

§ 44. Promise^limitations.] A promise of marriage is subject to
the same rules as contracts in gener^, but neither party to a promise,
or contract to marry, is bound by a promise made in ignorance of the
other's want of personal chastity; and either is released therefrom by
unchaste conduct on the part of the other, unless both parties parti-
cipate therein. All marriages contracted without this territory,
which would be valid by the laws of the country in which the same
were contracted, are valid in this territory.

% 45. Solemnization.] Marriage must be solemnized, authenticated,
and recorded as provided in this article; but non-compliance with its
provisions does not invalidate any lawful marriage. It may be solem-
nized by either a justice of the supreme court, a judge of the probate
court, or justice of the peace, a mayor, or by a minister of the gospel,
or priest of any denomination: and in case of Indians by die peace-
makers, their agents, or superintendent of Indian afiairs.

% 46. Form op dbclapation — rkcord.I No particular torm for the
ceremony of marriage is required, but the parties must declare, in the
presence of the person solemnizing the marriage, and of at least one

Civil Code. Personal Relations. 213

witness, that they take each other as husband and wife. Persons
married without the solemnization provided for in this and the pre-
ceding section niust, for the purpose of authentication, jointly make a
written declaration of marriage substantially showing:

1. The names, ages, and residence of the parties.

2. The fact of the marriage.

3. The time, of the marriage.

4. That the marriage has not been solemnized.

If no record of the solemnization of a marriage heretofore contracted
be known to exist, the parties may join in a written declaration of
such marriage, substantially showing:

1. The names, ages, and residences of the parties.

2. The fact of marriage.

3. That no record of such marriage is known to exist.

Such declaration must be subscribed by the parties, and attested by
at least three, witnesses. Declarations of marriage must be acknowl-
edged and recorded in like manner as grants of real property. And if
either party to any marriage denies the same, or refuses to join in a
declaration thereof, the other may proceed by action in the district
court to have the validity of the marriage determin^ imd declared.

% 47. Prerequisites of.] The person solemniziiifg a Aiarriage must
ascertain to his satisfaction :

1 . The identity of the parties. '•

2. Their real and full names, and places of ^esiclence.

3. That they are of sufficient age to be capable 'of contiactflig; mar-
riage: and «

4. The name and place of residence of the witness, or of two wit-
nesses, if more than one is present.

§ 48. Record op same.] The person solemnizii% a marriage must
enter the facts ascertained by him, pursuant to the last section, and
the date of the solemnization, in a book to be kept by him for that
purpoee.

§49. Celebrant's certificate.] The person solemnizing a mar-
riage must fdmLsh to either party, on request, a certificate thereof,
signed by him specifying:

1. The names and places of residence of the parties married.

2. That they were known to him, or were satisfectorily proved by
the oath of a person known to him, to be the persons described in such
certificate.

3. That he had ascertained that they were of sufficient age to con-
tract marriage.

4. The name and place of residence of the attesting witness, or of
two witnesses.

5. The time JEind place of such marriage: and

6. That after due inquiry made, there appeared to be no lawful
impediment to such marriage.

§ 50. RsoisTRT.] The certificate mentioned in the last section may,
within six months after the marriage, be filed with the clerk of the
city or town where the marriage was solemnized, or where either of
the parties reside, or the re^ster of deeds of .such county: and, when
thus filedp most be entered in a hook to be provided by such officer *in

214 Pbbsonal Rblationb. Civil Code.

the alphabetical order of the name of each party, and in the order of time
in which it is filed.

§ 51. Facts in ebgibtet.] The entry required by the last section
must specify:

1. The name and place of residence of each party.

2. The time and place of marriage.

3. The name and official station of the person signing t>he certificate:
and

4. The time when the certificate was filed.

§ 52. Proof and acenowledgmbnt.] If a certificate of marriage
is signed by a minister or priest, there must be indorsed or annexed,
before filing, a certificate of a magistrate residing in the same county
with the clerk, that the person by whom it is signed is personally
known to such magistrate, and has ackuowledged the execution of the
certificate, in his presence, or that the execution of the certificate by
a minister, or priest of some religious denomination, has been proved
to the magistrate by the oath of a person known to him, and who saw
the certificate executed.

§ 53. Rboord evidence.] A certificate or declaration of marriage,
or the entry tliereuf. made as above directed, or a copy of the certifi-
cate, or declaration, or entry, duly certified, is presumptive evidence of
the fact of the marna^^^e,

§ 54. Cacses for annulling marriage.] A marriage may be annulled
by an action in the dislrict court to obtain a decree of nullity, for any
of the following causes existing at the time of the marria*re:

1. That the party in whose behalf it is sought to have the mp.rriage,
annulled was under the age of legal consent, and such marriage was
contnioted without the consent of his or her parents, or guardian, or
pei-son having char^'t^ of him or her, unless, after attaining the age of
consent, such party for any time freely .cohabited with tiie other as
husband or wife.

5. That the former husband or wife of either party was living, and
the marriage with such former husband or wife was then in force.

3. That either party was of unsound mind, unless such party, after
coming to reason, freely cohabited with the other as husband or wife.

4. That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facte constituting
the fraud, freely cohabited with the other as husband or wife.

5. That the consent of either party was obtained by force, unless
such party afterwaitis freely cohabited with the other as husband or
wife.

6. That either party was, at the time of the marriage, physically
incapable of entering into the marriage state, and such incapacity con-
tinues and appears to be incurable.

Every minister or magistrate who solemnizes any marriage, where
either of the parties is known to him to be under the age of legal con-
sent, and without the consent of his or her parents, or guardian, or
persons having charge of him or her, or where either of the parties is
known to him to be of unsound mind, or any marriage to which,
within his knowledge, any legal impediment exists, is guilty of a
misdemeanor.

Civil Code. Personal Rblation&. #215

§ 55. Limitation on action.] An action to obtain a decree of nullity
of marriage, for causes mentioned in the preceding section; must be
commenced within th« periods and by the parties, as follows:

1. For causes mentioned in subdivision one; by the party to the
marriage who was married under the age of legal . consent, within
four years after arriving at the ace ot consent, or by a parent,
guardian, or other person having charge of such non-aged male or
female, at any time before such married minor has arrived at the age
of legal consent.

2. For causes mentioned in subdivision two; by either party
during the life of the other, or by such former husband or wife.

3. For causes mentioned in subdivision three; by the party injured,
or relative, or guardian of the party of unsound mind, at any time
before the death of either party.

4. For causes mentioned in subdivision four; by the party injured,
within four years after the discovery of the facts constituting the fraud.

5. For causes mentioned in subdivision five; by the injured party,
within four years after the marriage.

6. For causes mentioned in subdivision six; by the injured party,
within four years after the marriage.

§ 56. Children leoitimats.] Where a marriage is aitinulled on the
^und that a former husband or wife was living, ot on tlie ground of
msanitv, children begotten before the judgment u-e legitimate, and
succeed to the estate of both parents. ^

§ 57. Custody of.] The court must award the custody of the
children of a marriage annulled on the ground of fraud or foroflr, to the
innocent parent, and may also provide for their education and main-
tenance out of the property of the guilty party.

§ 58. Effect of judgment.] A judgment of nttllity of marriage
rendered is conclusive only as against the parties to the action and
those claiming under them.

Article U.— Dissolution.

559. Dissolved— HOW.] Marriage is dissolved only:
. By the death of one of the parties; or,

2. By the judgment of a court of competent jurisdiction decreeing a
divorce of the parties.

The effect of a judgment decreeing a divorce is to restore the parties
to the state of unmarried pei^ons. The district court in each coupty
or subdivision, has such jurisdiction, in an action according to the
code of civil procedure.

§60. Causes for divorce -definitions — restrictions.] Divorces
may be granted for any of the following causes:

1. Adultery.

2. Extreme cruelty.

3. Willful desertion.

4. Willful neglect.

5. Habitual intemperance.

6. Conviction for felony. • —

1. Adultery, as to its definition as here used, is the voluntary sexual
intercourse of a married person with a person other than the oflfender^s
husband or wife.

216 Perbohal Relations. Ciiiit Code.

2. Extreme cruelty is the infliction, of grievous bodily injury or
grievous mental suffering upon the other, by one jptucty to the marriage.

3. Willful desertion is the voluntary separation of one of the mamed
parties from the other, with intent to desert.

Pei-sistent refusal to have reasonable matrimonial intercourse as
husband and wife, when health or physical condition does not make
such refusal reasonably necessary, or the refusal of either partj[ to
dwell in the same house with the other party, when there ie no just
cause for such refusal, is desertion.

When one party is induced by the stratagem or fraud of the other
party to leave the family dwelling place, or to be absent, and during
such absence the offending party departs with intent to desert the
other, it is desertion by the party committing the stratagem or fraud,
and not by the other.

Departure or absence of one party from the family d,welling place,
caused by cruelty, or by threats of bodily harm, from which danger
would be reasonably apprehended from the otJier, is not desertion by
the absent party, but it is desertion by the other party.

Separation by consent, with or without the understo'Uding that one
of the parties aHI apply tor a divorce, is not desertion.

Absence o^^Hh^^Iod. proper in itself, becomes desertion when-
ever the intenCTiqleseit is fixed during such absence or separation.

Consent to ;i Sflpaiatiou is a revocable act, and if one of the parties
afterwards, in good fiiitli, seeks a reconciliation and restoration, but
the other refuses it, such refusal is desertion.

If one party deeert-s thf other, and before the expiration of the stat-
.utory period required to make the desertion a cause of divorce, returns
and ofrere, in good tkitli, to fulfill the marriage contract, and solicits
condonation, the df^eition is cured. If the other party refuse such
ofJ'ei- mid condonation, tlie refusal shall be deemed and treated as
desertion by such party, from the time of refusal.

The husband may choose any reasonable place or mode of living, and
if the wife does not conform thereto, it is desertion.

If the place or mode of living selected by the husband is unreason-
• able and grossly unfit, and the wife does not conform thereto, it is de-

sertion on the part of the husband f^m the time her reasonable
objections are made known to him.

4. Willful neglect is the neglect of the husband to provide for
his wife the common necessaries of life, he having the ability to do
so; or it is the failure to do so by reason of idleness, profligacy, or dis-
sipation.

5. Habitual intemperance is that degree of intemperance, from the
use of intoxicating drinks, which disqualifies the person a great por-
tion of the time from properly attending to business, or which would
reasonably inflict a course of great mental anguish upon the innocent
party.

fik *7-i A,^* Willful desertion, willful neglect, or habitual intemperance, must
continue for tw*! years before either is a ground for divorce,
g 61. DiKiAL OF mvoBOE— CAUSES — DEFINITIONS.] Divoroos must be
', denied upon showing: .

! 1. Connivance; or,

! 2. Collusion; or.

'ml Code. Personal Relations. 217

3. Condonation; or,

4. Recrimination; or,

5. Limitation and lapse of time.

1. Connivance is the corrupt consent of one party to the commis-
sion of the acts of the other, constituting the cause of divorce. Corrupt
consent is manifested by passive permission, with intent to connive at
or actively procure the commission of the acts complained of.

2. Collusion is an agreement between hubsand and wife that one of
them shall commit, or appear to have committed, or to be represented
in court as having committed acts constituting a cause of divorce, for
the purpose of enabling the other to obtain a divorce.

3. Condonation is the conditional forgiveness of a matrimonial
offense constituting a cause of divorce.

The following requirements are necessary to condonation :

1. A knowledge on the part of the condoner of the facts constituting
the cause of divorce.

2. Reconciliation and remission of the oflTense by the injured party.

3. Restoration of the offending party to all marital rights.
Condonation implies a condition subsequent; that the. forgiving party

most l)e treated with conjugal kindness. Where the cause of divorce
consists of a course of offensive conduct, or arises in cases of crueltj^
fix>m excessive acts of ill . treatment which may, jiggregately, consti-
tute the offense, cohabitation, or passive endurance, or conjugal kind-
ness, shall not be evidence of condonation of any of the acts consti-
tuting such cause, unless accompai^ied by an express agreement to
condone. In such cases condonation can be made only after the
cause of divorce has been complete, as to the acts complained of. A
firaudulent concealment by the condonee of facts constituting a differ-
ent cause of divorce from the one condoned, and existing at the time
of condonation, avoids such condonation. Condonation is revoked and
the original cause of divorce revived :

1. When the condonee commits acts constituting a like or other
cause of divorce; or,.

2. When the condonee is guilty of great conjugal unkindness, not
amounting to a cause of divorce, but sufiSciently habitual and g^os^t to
show that the conditions of condonation had not been accepted in
good iaith, or not fulfilled

4. Recrimination is showing by the defendant of any cause of
divorce against the plaintiff, in bar of the plaintiff's cause of divorce.

Condonation of a cause of divorce, show^n in the answer as a recri m-
inatory defense, is a bar to such defense, unless the condonation be
reToked, as above provided, or two years have elapsed after the condo-
nation and before the accruing or completion of the cause of divorce
against which the recrimination is shown.

§ 62- AnrxTERY by husband.] When a divorce is granted for the
adultery of the husband, the legitimacy of children ol* the marriage,
b»ott^ of the wife before the commencement of the action, is not
affected.

§ 63. By wife — lxoitihacy.J When a divorce is granted for the
adultery of the wife, the legitimacy of children begotten of her before
tfae coDunission of the adultery is not affected: but the legitimacy of
other children of the wife may be determined by the court, upon the

218 . Personal Relations. Civil Code.

evidence in the case. In every such case all children begotten before
the commencement of the action, are to be presumed legitimate until
the contrary is shown.

§ 64. fiuiLTY CANNOT MARRY.] When a divorce is granted for
adultery, the innocent party may marry again during phe life of the
other; but the guilty party cannot marry any person, except the inno-
cent party, until the death of the other.

Article 111.— Other Causes for Denying Divorce.

§ 65. Time limited.] A divorce must be denied:

1. When the cause is adultery and the action is not commenced
within two years after the commission of the act of adultery, or after
its discovery by the injured party; or,

2. When the cause is conviction of felony, and the action is not com-
menced before the expiration of two years after a pardon, or the
termination of the period of sentence.

3. In all other cases when there is an unreasonable lapse of time
before the commencement of the action.

UniciisiiiKililu l:ii)-^i' of time is such a delay in commencing the
action ii< rst;ii)lishes tlie presumption that there has been connivance,
collusinii. or .oTidoninion of the otfense, or full acquiescence in the
same, with intetit to continue the marriage relation notwithstanding
the ci)niini^.-<i()ii of snih offense. The presumptions arising from lapse
of time jiiay be rebutted by showing reasonable grounds for the delay .
in commencing the Brtion. OIj^.4^ <*■■ JkSv

% 6('). Only sTATifroRY limitations.] There are no limitations of
time tin- coinmeni^ilg actions for divorce, except such as are contained
in the foregoing SBCtHn. sixty-five.

§ 6(. Term of rksidence.) A divorce must not be granted unless
the pliiiiilill' h;ifj. Ill ^'ood faith, been a resident of the territory ninety
days next preceding the commencement of the action,

% 6S. Presumption of domicile.] In actions for divorce the pre-
sumption of law that the domicile of the husband is the domicile of
the wife, does not apply. After separation, each party may have a
separate domicile, depending for proof upon actual residence, and not
upon legal presumptions.

S ()9. Affirmative proof required.] No divorce can be granted
upon the default of the defendant, or upon the uncorroborated state-
ment, admission, or testimony of the parties, or upon any statement
or finding of fact made by a referee; but the court must, in addition
to any statement or finding of the referee, require proof of the facts
alleged, and such praof, if not taken before the court, must be upon
written questions and answers.

Article IV.- -General Provisions.

S 7lt. Maintenance.] Though judgment of divorce is denied, the
court may, in an action for divorce, provide for the maintenance of a
wife and her children, or any of them, by the husband.

g 71. Alimony pending action.] While an action for divorce is
pending, the court may. in its discretion, require the husband to pay.

Civil Code. Pbebonal Rbiations. 219

as alimony, any money necessary to enable the wife to support herself
or her children, or to prosecute or defend the action.

§ 72. Custody of- chilbben.] In an action for divorce, the court
may, before or after judgment, give such direction for the custody, care
and education of the chudren oi the marriage, as may seem necessary
or proper, and may at any time vacate or modify the same.

§ 73. Support.] Where a divorpe is granted for an offense of the
husband, the court may compel him to provide for the maintenance of
the children of the marriage, and to make such suitable allowance to
the wife for her support during her life, or for a shorter period, as the
court may deem just> having regard to the circumstances of the parties
respectively; ai^a the court may, from time to time, modify its orders
in these respects.

§ 74, Security — sbparatb estate — homestead.] The court may
require the husband to give reasonable security for providing mainten-
ance, or making any payments required under the provisions of this
chapter, and may enforce the same by the appointment of a receiver,
or by any other remedy applicable to the case. But when the wife has
a separate estate suflBlcient to give her a proper support, the court, in
its discretion, may withhold any allowance to her out-^ the separate
propei'ty of the husband. The court, in rendering % de3[ee of divorce,
may assi^ the homestead to the innocent party, ^ther absolutely or
for a limited period, according to the facts of the«case, and in conso-
nance with tne law relating to homesteads. The disposition of the
homestead by the court, and all orders and decrees to«ehing the
alimony and maintenance of the wife, and for the custody, education
and support of the children, as above provided, are subject to revision
on appeal in all particulars, including those which are stated to be in
the discretion of the court.

CHAPTER III.

HUSBAND AND WIFE.

§ 75. Mutual relations.] Husband and wife contract toward each
other obligations of mutual respect, fidelity, and support..

§ 76. Head op family.1 The husband is the head of the family. He
may choose any reasonable place or mode of living, and the wife must
conform thereto.

§ 77. Duty to support.] The husband must supjport himself and his
wife out of his property or by his labor. The wife must support the
husband, when ne nas not deserted her, out of her separate property,
when he has no separate property, and he is unable, from infirmity, to
support himself.

§ 78. Separate property— dwelling.] Except as mentioned in sec-
tion seventy-seven, neither husband nor wife has any interest in the
property of the other, but neither can be excluded from the others
awelling.

§ 79. Contracts.] Either husband or wife may enter into any
engagement or transaction with the other, or with any other person.

■■

220 Personal Relations. Civil Code.

respecting pTroperty, which either might, if unmarried, subject, in
transactions between themselves, to the general rules which control
the actions of persons occupying confidential relations with each
other, as defined by the title on trusts.

§ 80. Cannot alter relations.] A husband and wife cannot, by
any contract with each other, alter their legal relations, except as to
property, and except that they may agree, in writing, to an immediate
separation, and may make provision for the support of either of them
and of their children during such separation.

§ 81. Separation.] The mutual consent of the parties is a suflS-
cient consideration for such an agreement as is mentioned in the last
section.

§ 82. Joint tenants wife's conveyance.] A husband and wife may
hold real or personal property together as joint tenants, or tenants in
common. The wife may, without the consent of her husband, convey
her separate property. A full and complete inventory of the separate
personal property of the wife may be made out and signed by her,
acknowledged or proved in the manner provided by law for the
acknowledgment or proof of a grant of real proi)erty by an unmarried
woman, and jfcorded in the ofi&ce of the re^ster of deeds of the
county or suHmjion in which the parties reside. The filins of the
inventory in WB lAister's oflBce is notice and prima facie evidence of
the title of the wul.

§ 83. vSeparate and mutual rights.] Neither husband nor wife, as
such, is answerable for the acts of the other.

2. The earnings of the wife are not liable for the debts of the hus-
band, and the earnings and accumulations of the wife, and of her
minor children living with her, or in her custody, while she is living
separate from her husband, are the separate property of the wife.

3. The separate property of the husband is not liable for the debts of
the wife contracted before the marriage.

4. The separate property of the wife is not liable for the debts of
her husband, but is liable for her own debts, contracted before or after
marriage.

5. No estate is allowed the husband as tenant by courtesy, upon the
death of his wife, nor is any estate in dower allotted to the wire upon
the death of her husband.

§ S4. Wife's necessaries.] If the husband neglect to make adequate
provision for the support of his wife, except in the cases mentioned
in the next section, any other person may, in good faith, supply her
with articles necessary for her support and recover the reasonable
value thereof from the husband.

§ 85. Abandonment -separation.] A husband abandoned by his
wife is not liable for her support until she offers to return, unless she
was justified by his misconauct in abandoning him ; nor is he liable for
her support when she is living separate from him, by agreement, unless
such suf)port is stipulated in the agreement.

Civil CocU. PSRSONAL RELATIONS. 221

TITLE IL

PARENT AND CHILD.

Chapter I. By birth.

II. By adoption.

CHAPTER I.

CHILDREN BY BIRTH.

§ 86. Le0itimact presumed.] All children born in wedlock are pre-
sumed to be legitimate. v^

§ 87. Definitions.] All children of a woman \jjJio o^a been mar-
ried, bom within ten months after the dissolution of the marriage,
are presumed to be legitimate children of that ^marriage. A child
bom before wedlock becomes legitimate by the subsequent marriage
of its parents.

§88. Disputed legitimacy.] The presumptiou^ of legitimacy can
be disputed only by the husband or wile, or the descendant of one or
both of them. Illegitimacy, in such case, may be proved like any
other fact.

§ 89. Both parents support children.] The parent entitled to the
custody of a child must give him support and education suitable to his
circumstances. If the support and education which the father of a
le^timate child is able to give, are inadequate, the mother must assist
hm to the extent of her ability.

§ 90. Title to custody — father.] The father of a legitimate
onmarried minor child Ls entitled to its custody, services, and earnings;
but he cannot transfer such custody or services to any other person,
except the mother, without her written consent, unless she has
deserted him, or is living separate from him by agreement. If the
father be dead^ or be unable, or refuse to take the custody, or has aban-
doned his family, the mother is entitled thereto.

§ 91. Of illegitimate child.] The mother of an illegitimate
unmarried minor is entitled to its custody, 8ervice>:, and earnings.

g 92. Court may direct.] The district court may direct an allow-
ance to be made to a parent of a child, out of its property, for its past
or fatore support and education, on such condititions as may be propf^r.
whenever such direction is for its benefit.

'§93. ' Property coxtrol.] The parent, as sucIl has no control over
the property of the child.

§ 9i. Parental abuse.] The abuse of parental authority is the
subject of judicial cognizance in a civil action in the district court,
bronght by the child, or by its relative >vithin the third degree, or by

222 Pbesoral Rblatiohs. Civil Code.

the officers of the poor where the child resides; and when the abuse is
established, the child may be freed /rom the dominion of the parent,
and the duty of support and education enforced.
§ 95. Parent's power ceases,] The adithority of a parent ceases:

1. Upon the appointment by a court of a guardian of the person of
the child.

2. Upon the marriage of the child; or,

3. Upon its attaining majority.

§ 96. Public action foe support of child.] If a parent chargeable
with the support of a child dies, leaving it chargeable upon the town-
ship, or county, and leaving an estate sufficient for its support, the
officers of the poor, in the name of the township, or county, respect-
ively, may claim provision for its support from the parent's estate by
civil action, and tor this purpose may have the same remedies as any
creditors against that estate, and ag&inat the heirs, devisees, and nest
of kin of the parent.

§ 97. Support of poor.] It is the duty of the father, the mother,
and the children, of any poor person who is unable to maintain him-
self by work, to maintain such person to the extent of their ability.
The proniis,' of an ailiilt child to pay for necessaries previously fur-
nish*''! U) such parent, is binding.

g lis. Xeglbotoj CHILD.] If a parent neglects to provide articles
necf'sssiiy i'ov his (ihil<l who is under his charge, according to his cir-
cuinstiiTn-es, ;i third pt^rson may in good faith supply such necessaries,
and rt'cover the n>a.^oniLlile value thereof from the parent.

§ 911. Parent wbkn >roT liable.] A parent is not hound to compen-
sate tlie other parent, or a relative, for the voluntary support or his
chil.l without, an iigreRraent for compensation, nor to compensate a
straiiiii r for the sii|i|i(irt of a child who has abandoned the parent
witlujiil just causf,

g 100. Support of step-childben.] A husband is not bound to
maintain his wife's children by a former husband; but if he receives
them into his family and supports them, it is presumed that he does
so as a parent-, and where such is the case, they are not liable to him
for their support^ nor he to them for their services.

§ 101. After majority.] Where a child, after attaining majority,
continuesto serve and to be supported by the parent, neither party is
entitled to compensation in the absence of an agreement therefor.

g 102. Child's earnings.] The parent, whether solvent or insolvent,
may relinquish to the child the right of controlling him and receiving
his earnings. Abandonment by tne parent is presumptive evidence of
such relinquishment.

§ 103. Wages paid.] The wages of a minor employed in service
may be paid to him or her, until the parent^ or guardian, entitled
thereto gives the employer notice that he claims sucn wages.

§ 104. Change residence.] A parent entitled to the custody of a
child has a right to change his residence, subject to the power of the
district court to restrain a removal which would prejudice the rights
or welfare of the child.

§ 105. Non-liability.] Neither parent nor child is answerable, as
such, for the act of the other.

i

Civil Code, Personal Relations. 228

§ 106. Father's and mother's custody.] The husband and wife, as
such, has no rights superior to those of the wife and mother, in regard
to the care, custody, education, and control of the children of the
marriage, while such husband and wife live separate and apart from
each otner; and when they so live in a state of separation without
being divorced, the district court or judge thereof, upon application of
either, may grant a writ of habeas corpus to inquire into the custody
of any minor unmarried child of the marriage, and may award the
custody of such child to either, for such time and under such regula-
tions as the case may require. The decision of the court or judge
must be guided by the rules prescribed in section one hundred and
twenty-seven, under the title of "guardian and ward."

CHAPTER II.

ADOPTION.

§ 107. Minor adopted.] Any minor child may be adopted by any
adult person, in the cases, and subject to the rules, pHtecribed in this
chapter.

§ 108. Relative age limited.] The person adopting a child must
be at least ten years older than the person adopted.

§ 109. Married persons limited.] A married man. not lawfully
separated from his wife, cannot adopt a child without tne consent of
his wife, nor can a married woman not thus separated from her hus-
band, without his consent, provided the husband or wife not consenting,
is capable of giving such consent.

§ 110. Consent of parent.] A legitimate child cannot be adopted
without the consent of its parents, if living, nor an illegitimate child
without the consent of its mother, if living, except that consent is not
necessary from a father or mother, deprived of civil rights, or adjudged
guiltr of adultery, or of cruelty, and for either cause divorced, or
adjudged to be an habitual drunkard, or who has been judicially
deprived of the custody of the child, on account of cruelty or negleftt.

g 111. Of child.] The consent of a child, if over the age of twelve
years, is necessary to its adoption.

1 112. Probate approval.] The person adopting a child, and the
child adopted, and the other persons whose consent is necessary, must
appear before the probate judge of the county where the person adopt-
ing resides, and the necessary consent must thereuiK)n be signed, and
an aflBement be executed by the person adopting, to the enect that
the cnild shall be adopted and treated in all respects as his own law-
fiol child should be treated.

§ 113. Separate examination.] The probate judge must examine
all persons appearing before him pursuant to the ikst section, each
separately, and if satisfied that the interests of the child will be pro-
moted by the adoption, he must make an order declaring that the
child shall thenceforth be regarded and treated in all respects as the
child of the person adopting.

§ 114. Chakos of name.] A child, when adopted, may take the £amily
name of the person adopting. After adoption, the two shall sustain

224 Personal Relations. Civil Code.

towards each other the legal relation of parent and child, and have all
the rights and be subject to all the duties of that relation.

§ 115. Parents relieved.] The parents of an adopted child are,
from the time of the adoption, relieved of all parental duties towards,
and of all responsibility for, the child so adopted, and have no right
over it.

§ 116. Illegimate child.] The father of an illegimate child, by
publicly acknowledging it as his own, receiving it as such, with the
consent of his wife if he is married, into his family, and otherwise treat-
ing, it as if it were a legitimate child, thereby adopts it as such; and
such child is thereupon deemed for all purposes legitimate from the
time of its birth. The foregoing provisions of this chapter do not apply
to such an adoption.

TITLE III-

^' guardian and wakd.

§ 117. Guardian defined.] A guardian is a person appointed to
take care of the peiison or property of another.

§ 118. Ward.] The person over whom, or over whose property a
guardian is appointed, is called his ward.

§ 119. Guardians classed.] Guardians are either:

1. General; or,

2. Special.

§ 120. General.] A general guardian is a guardian of the person,
or of all the property of the ward within this territory, or of both.

§ 121. Special.] Every other is a special guardian.

I 122. How AND BY WHOM APPOINTED.] A guardiau of the person or
estate, or of both, of a child born, or likely to be born, may be
appointed by will or by deed, to take effect upon the death of the
parent appointing.

1. If the child be legitimate, by the father, with the written consent
of the mother; or by either parent, if the other be dead or incapable
of consent.

2. If the child be illegitimate, by the mother.

§ 123. Power.] No person, whether a parent or otherwise, has any
power as guardian of property, except by appointment as hereinafter
provided.

§ 124. Probate jurisdiction.] A guardian of the person or prop-
erty, or both, of a person residing in this territory, who is a minor, or
of unsound mind, may be appointed in all cases, other than those
named in section 122, by the probate court, as provided in the probate
code.

§ 125. Of unsound mind.] A guardian of the property, within this
territory, of a person not residing therein, who is a minor, or of uu-
sound mind, may be appointed by the probate court,

§ 126. Exclusive control.] In all cases the court m3>kin^ the
appointment of a guardian has exclusive jurisdiction to control him.

Civil Code. Personal Relations. 225

§ 127. RuLBS GOVERNING SECTION.] In awarding the custody of a
minor, or in appointing a general guardian, the court or judge is to be
guided by the following considerations :

1. By what appears to be for the best interest of the child in respect
to its temporal, and its mental, and moral welfare; and if the child be
of a sufficient age to form an intelligent preference, the court or judge
may consider that preference in determining the question.

2. As between parents adversely claiming the custody or guardian-
ship, neither parent is entitled to it as of right, but, other things being
equal, if the child be of tender years, it should be given to the mother;
if it be of an age to require education and preparation for labor or
business, then to the father.

3. Of two persons equally entitled to the custody in other respects,
preference is to be given as follows:

1. To a. parent.

2. To one who was indicated by the wishes of a deceased parent.

3. To one who already stands in the position of a trustee of a fund
to be applied to the child's support.

4. To a relative.

§ 128. Guardian's power.] A guardian appointed by a court has
power over the person and property of the ward, unless otherwise or-
dered.

§ 129. Of the person.] A guardian of the person is charged with
the custody of the ward, and must look to his support, health, and edu-
cation. He may fix the residence of the ward at any place within the
territory, but not elsewhere, without permission of the court.

§ 130. Of the property.] A guardian of the property must keep
safely the property of his ward. He must liot permit any unnecessary
waste or destruction of the real property, nor make any sale of such
property without the order of the probate court, but must, so far as it
is in his power, maintain the same, with its buildings and appurten-
ances, out of the income or other property of the estate, and deliver it
to the ward at the close of his guardianship, in as good condition as he
received it.

§ 131. Relation defined.] The relation of guardian and ward is
confidential, and is subject to the provisions of tne title on trusts.

§ 132. Court control.] In the management and disposition of the
person or property committed to him, a guardian may be regulated
and controlled by the court.

§ 133. Joint guardians.] .On the death of one, or two, or more joint
guardians, the power continues to the sur\4vor until a further appoint-
ment is made by the court.

§ 134. Removal— causes,] A guardian may be removed by the
probate court for any of the following causes:

1. For abuse of his trust.

2. For continued failure to perform its duties.

3. For incapacity to perform its duties.

4. For ffross immorality.

5. For having an interest adverse to the faithful performance of his
duties.

6. For removal from the territory.

7. In the case of guardian of the property, for insolvency; or,

15

Personal Rslations. Civil Code.

8. When it is no longer proper that the ward should be under
guardianship.

§ 135. Parental appointee superseded.] The power of a guardian
appointed by a parent is superseded :

1. By his removal, as provided in section 134.

2. By the solemnized marriage of the ward: or,

3. Bv the ward's attaining majority.

§ 136. Court appointee.] The power of a guardian appointed by a
court is suspended only:

1. By order of the court; or.

2. If the appointment was made solely because of the ward's minor-
ity, by his obtaining majority; or,

3. The guardianship over the person of the ward by the marriage of
the ward.

^ 137. Ward's majority.] After a ward has come to his majority,
he may settle accounts with his guardian, and give him a release,
which is valid if obtained fairly ana without undue influence.
. § 138. Limitation of discharge.] A guardian appointed bj^ a
court is not entitled t<) his discharge until one year after the ward's
majority.

§ 139. Asylum for unsound mind.] A person of unsound mind may
be placed in an asylum for such persons upon the order of the probata
court of the county in which he resides, as follows:

1. The court must be satisfied, by the oath of two reputable

f)hysicians, that such person is of unsound mind, and unfit to be at
arge.

2. Before granting the order the judge must examine the person
himself, or if that is impracticable, cause him to be examined by an
impartial person, duly sworn for that purpose.

3. After the order is granted the person alleged to be of unsound mind,
his or her husband, or wife, or relative to the third de^ree^ may appeal
to the district court and demand therein an investigation before a
jury, which must be substantially, in all respects, conducted as under
an inquisition of lunacy.

TITLE rv.

mahter and servant.

§ 140. Apprenticeship authorized.] Male minors, and unmarried
females under the age of eighteen years, with the consent of the per-
sons or officers hereinafter mentioned, may bind themselves, by a
writing called an indenture, as fully as if they were of age, to ser\'^e
as clerks, apprentices, or servants, in a particular calling, until
majority (except in the case of females, who cannot bind themselves
further than until the age of eighteen), or for any shorter time.

§ 141. Consent -by whom.] Consent to an indenture of apprentice-
ship must be given by certificate at the end thereof, or endorsed
thereon, signed:

CivH Code. Psiusonal RslatIonb. 227

1. By the father and mother of the apprentice.

2. If the father lacks capacity to consent, or has abandoned or neg^
lected to provide for the family, or is dead, and no testamentary
^ardian or executor has been appointed by him, with power under
tne will to bring up the child to a calling, and a certificate of such
fact is indorsed on the indenture by a justice of the peace of the
county, then by the mother.

3. If the father is dead, and such guardian or executor has been
appointed by him, then by such guardian or executor.

4. If the mother is dead, or lacks capacity to consent, then by the
father.

5. If there is no parent of capacity to consent, and no such execu-
tor, then by the guardian; or,

6. If there is no such parent, executor, or guardian, then by the
officers of the poor of the town or county, or by any two justices of
the peace of the county, or by the probate judge.

§ 142. Liability.] A parent, executor, or guardian, consenting to
an indenture, is not liable for a breach thereof by the apprentice,
unless the indenture or consent expresses an intention to bind him
therefor. --^

§ 143. Poor may be bound.] Any child who is ehargeable, or whose
parents are chargeable to a county or city poor house, or who is in
such poor house, may be bound to service until attaining twenty-one
years, or if a female, until attaining eighteen years, by the proper offi-
cers of the poor, as provided in this title; but such binding by said
officers must be with the consent, in writing, of the justice of the
peace of the county or city.

§ 144. Indian child.] No child of an Indian woman can be bound,
under this title, except in the presence, and with the consent of a
justice of the peace; and his certificate of consent must be filed with
the probate judge of the county where the indenture is executed.

§ 145. Age stated.] In every indenture of apprenticeship the age
of the apprentice must be stated, and such statement is presumptive
evidence thereof; and before an officer executes an indenture, or con-
sents thereto, he must inform himself of the age of the apprentice.

§ 146. Considebation.] If there is any pecuniary consideration
for an indenture of apprenticeship on either part, it must be stated
therein.

§ 147. Education required.] The indenture shall also contain an
agreement on the part of the person to whom such child shall be
bound, that he will cause such child to be instructed to read and write,
and to be taught the general rules of arithmetic, or, in lieu thereof,
that he will send such child to school three months of each year of
the period of indenture; and that he will give him a new bible at the
expiration of his term of service.

% 148. Filing counterpart.] Every officer executing an indenture
of apprenticeship must file a counterpart thereof with the probate
jui^e of the county in which he is an officer.

§ 149. Immiorant minor.] An immigrant minor may bind himself
to service until he attains majority, or for a shorter term, in such
manner as may be prescribed by the law of the county in which the
contract is maide. If the indenture is made for the purpose of enabling

228 Perso^aj. :Rkla.tion6i Civil Code,

him to pav his passage to this country, it md,y be for the term of
ojie year, althougn- &ucn term extends beyond his majority; but in no
ease for a longer term.

§ 150. AciKNOWLE.ne^MENT.] Every indenture under section one
hundred and forty-nine must be duly acknowledged by the minor on
a private examination before a probate judge or a justice of the peace,
and a certificate of the acknowledgment, showing that the same was
made freely, must be indorsed upon the contract.

§ 151. Assignment, allowed.] The master, under an indenture
specified in section one hundred and forty-nine, may assign it, by
writing indorsed thereon, and with the approval, also indorsed, of a
magistrate mentioned in section one hundred and fifty.

§ 152. Indenture void, ac] No indenture or contract for the ser-
vice of an apprentice is binding upon him unless made as hereinbefore
prescribed.

§ 153. Overseers of poor.1 The county overseer of the poor, and
the overseers of the poor or cities and towns, must see that every
apprentice or other servant in th^ir respective counties, cities, or
towns, is properly treated^ and that the terms of the contract are ful-
filled in his favpr; and it is their duty to redress any grievance of such
persons in the dianner prescribed by law.

§154. Penalty . tiPON absent apprentice.] If an apprentice, for
whose instruction tthe master receives no pecuniary compensation,
willfully absents himself from service without leave, he may be com-
pelled to serve double the time of such absence, unless he makes satis-
laction for the injury; but sucji additional term of service cannot
extend more than three years beyond the original term.

§ 155. Free vocation.] No person may accept from an apprentice
or servant, an agreement, oath, or promise not to exercise his vocation
in any particular place ; nor may any pjerson exact from an apprentice
or servant, any consideration for exercising his vocation in any place
after his term of service haa expired.

§ 156. Penalty for restraint.] Any consideration exacted con-
trary to the last section, may be recovered back with interest, and
every person accepting such agreement or exacting such consideration,
is liable to the apprentice or servant in, a penalty of one hundred
dollars.

§ 157. Deceased master.] The executors or administrators of the
master <>f any apprentice bound by officers of thye poor, may assign
the indenture, with the written consent of the apprentice, acknowl-
edged befpre a justice of the peace.

§ 158. Consent to assignment.]. If an apprentice refuses consent
to an assignment under the last section, the probate or district court
may authorize such assignment without his consent, upon application,
after fourteen days' notice, to the apprentice or to his parents or guar-
dian, if he has any in the county.

Civil Code. PitoPERTt IN Genbkal. 969

DIVISION SECOND.

PROPERTY.

Part I. Property in General.

II. Real, or Immovable Property.

III. Personal, or Movable Property.

IV. Acquisition of Property.

PART I.

Property in General

Title I. Nature of Property.
II. Ownership.
III. General Definitions.

TITLE L

NATURE OF PROPERTY.

§ 159. Ownership defined.] The ownership of a thing is the right
of one or more persons to possess and use it to the exclusion of others.
In this code, the thing of which there may be ownership, is called
property.

§ 160. What mat be owned.] There may be ownership of all
inanimate things which are capable of appropriation, or of manual
delivery; of all domestic animals; of all obligations; of such products
of labor or skill, as the composition of ah author, the good will of a
business, trade- marks and signs, and of rights created or granted by
statute.

§ 161. Wild animals.] Animals, wild by nature, are the subjects
of ownership while living only when on the land of the person claim-
ing them, or when tamed, or tiikert and held in possession, or disabled
and immediately pursued.

§ 162. Property CLABSED. I Property is either:

1. Real or immovable; or,

2. Personal or movable.

§ li68. Real otifiNed;] Real or immovable property consists of:

1. Land. ... .

2. That which is affixed to land. /. . i»: '1

290 Propbbtt in GbnebAl. Civil Cods.

3. That which is incidetntal or appurtenant to land.

4.' That which is immovable by law.

§ 164. Land defined.] Land is the solid material of the earth,
whatever may be the ingredients of which it is composed, whether soil,
rock, or other substance.

§ 165. Fixtures.] A thing is deemed to be affixed to land, when it
is attached to it by roots, as m the case of trees, vines, or shrubs; or
imbedded in it, as in the case of walls; or permanently resting upon
it, as in the case of buildings; or permanently attached to what is thus
permanent, as by means of cement, plaster, nails, bolts, or screws.

§ 166. Appurtenances.] A thing is deemed to be incidental or
appurtenant to land, when it is by right used with the land for its
benefit, as in the case of a way, or watercourse, or of a passage for
light, air, or heat, from or across the land of another. Sluice boxes,
flumes, hose, pipes, railway tracks, cars, blacksmith shops, mills, and
all other macninery or tools used in working or developing a mine, are
to be deemed affixed to the mine.

§ 167. Personal property defined.] Every kind of property that
is not i*eal is personal.

CHAPTER I.

OWNERS.

§ 168. Ownership — limitation.] The legislative assembly can pass
no law inteifeiing with the primary disposal of the soil. All property
in this territory has an owner, whether tnat owner is the United States,
or the territory, and the property public; or the owner, an individual,
and the property private. The territory may also hold property as a
private proprietor.

§ 169. Land below high water mark.] The ownership of land
below ordinaiy high water mark, and of land below the water of a
navigable lake or stream, is regulated by the laws of the United States,
or by such laws as, under authority thereof, the legislative assembly
may enact. The territory is the owner of all property lawfully appro-
priated or dedicated to its own use; and of all property of which there
IS no other owner.

§ 170. Who mat oonvet.] Any person, whether citizen or alien,
may take, hold, and dispose of property, real or personal, within this
territory.

CHAPTER 11.

modifications of ownership.

Article I.~Interests in Property.

§ 171. Ownership classed.] The ownership of property is either:

1. Absolute; or,

2. Qualified.

Civil Code. Propkrty in Genkbal. 231

§ 172. Absoluts.] The ownership of property is absolute when a
single person has the absolute dominion over it, and may use it or dis-
pose of it according to his pleasure, subject only to general laws,

" 173. Qualified.] The ownership of property is qualified:
When it is shared with one or more persons.

2. When the time of enjoyment is deferred or limited ; or,

3. When the use is restricted.

g 174. Sole ownership.] The ownership of property by a single
person is designated as a sole or several ownership.

§ 175. Ownership of property.] The ownership of property by
several persons is either:

1. Of joint interests.

2. Of partnership interests; or,

3. Of interests in common.

§ 1 76. Joint tenancy.] A joint interest is one owned by several
persons in equal shares, by a title created by a single will or transfer,
when expressly declared in the will or transfer to be a joint tenancy,
or when granted or de\ised to executors or trustees as joint tenants.

§ 177. Partnership.] A partnership int/crest is one owned by sev-
eral persons, in partnership, for partnership puq^oses. ^

§ 178. Common tenancy.] An interest in common is one owned l)y
several persons not in joint ownership or partnership.

§ 179. Definition.] Every interest created in favor of several per-
sons in their own right is an interest in common, unless acquired by
them in partnership, for partnership purposes, or unless declared in ita
creation to be a joint interest, as provided in section 176.

I 180. Commencement and duration.] In respect to the time of
enjoyment, an interest in nroperty is either:

1. Present or future; and,

2. Perpetual or limited.

§ 181. Present.] A present interest entitles the owner to the
immediate possession of the property.

§ 182. Future.] A future interest entitles the owner to the posses-
sion of the property only at a future period.

§ 188. Perpetual.] A perpetual mterest has a dumtion equal to
that of the property.

§ 184. Limited.] A limited interest has a durati(m less than that
of the property.

§ 185. Future estates classed.] A future interest is either:

1. Vested: or,

2. Contingent.

§ 186. When they vest. I A future interest is vested when there
is a person in being who would have a right defeasible or indefeasible,
to the immediate possession of the property, upon the ceasing of the
intermediate or precedent interest.

§ 187. How contingent.] A fiiture interest is contingent whilst the
person in whom, or the event upon which, it is limited to take effect,
remains uncertain.

§ 188. Alternative contingencies.] Two or more future interests
may be created to take effect in the alternative, so that if the first in
order feils to vest the next in suc^^ession shall be substituted for it,
and take effect accordingly.

I
232 Property in General. Civil Cods.

. % 189. Not void.] A future interest is not void merely because of
the improbability of the contingency on which it is limited to take
effect.

§ 190. Posthumous heir.] When a future interest is limited to suc-
cessors, heirs, issue or children, posthumous children are entitled to
take in the same manner as if living at the death of their parent.
. § 191. Future estates pass.] Future interests pass by succession,
will, and transfer, in the same manner as present interests.

§ 192. Possibilities.] A mere possibility, such as the expectancy of
an heir-apparent, is not to be deemed an interest of any kind.

§ 193. Estates of realty.] In respect to real or immovable prop-
erty, the interests mentioned in this cnapter are denominated estates,
and are specially named and classified in part two of this division.

§ 194. Applies to personal, only.] Tne names and classification
of interests in real property have only such application to interests
in personal property as is in this ai vision ot the code expressly
provided.

§ 195. Future interest limited.] No future interest in property is
recognized by the law, except such as is defined in this division of the
code.

Abiicle II. — Condition of Ownership.

§ 196. Conditions defined.] The time when the enjoyment of prop-
erty is to begin or end may be determined by computation, or be made
to depend on events. In the latter case, the enjoyment is said to be
upon condition.

§ 197. Classed.] Conditions are precedent or subsequent. The
former fix the beginning, the latter the ending of the right.

§ 198. Illegal conditions void.] If a condition precedent req^uires
the performance of an act wrong of itself, the instrument containing
it is so far void, and the right cannot exist. If it requires the perform-
ance of an act not wrong of itself, but otherwise unlawful, the instru-
ment takes effect, and the condition is void,

§ 199. Marriage limitations.] Conditions imposing restraints upon
marriage, except upon the marriage of a minor, or of the widow of the
person by whom the condition is imposed, are void; but this does not
affect limitations where the intent was not to forbid marriage, but only
to give the use until marriage. .

§ 200. Restraint on alienation.] Conditions restraining alienation,'
when repugnant to the interest created, are void.

Article III. — Restraints upon AuEjiATiON.

§ 201. Extent of legal limit.] The absolute power of alienation
cannot be suspended by any limitation or condition whatever, for a
longer period than during the continuance of. the lives of persons in
being at the creation oi the limitation or condition, except in the
single case mentioned in section two hundred and twenty-nine.

§ 202. Future limitation void.] Every future interest i§ void in
its creation, which, by any possibility, may suspend the absolute
power of alienation for a longer period than is prescribed in this chap-
ter. Such power of alienation is suspended when there are no per-

Civil Code, Property in General 23S

sons in being by whom an absolute interest in possession can be con-
veved.

§ 203. Leases limited.] No lease or grant of agricultural land for
a longer period than ten years, in which shall be reserved any rent or
service of any kind, shall be valid. No lease or grant of any town or
city lot, for a longer period than twenty years, in which shall be
reserved any rent or service of any kind, shall be valid.

Article IV.— AcctJMULATroNS.

§ 204. Income — future interest.] Dispositions of the income of
property to accrue and to be received at any time subsequent to the
execution of the instrument creating such disposition, are governed
by the rules prescribed in this title in relation to future interests.

§ 205. Illegal accumulation.] All directions for the accumulation
of the income of property, except such as are allowed by this title, are
void.

§ 206. Income how directed.] An accumulation of the income of
property, for the benefit of one or more • persons, may be directed by
any will or transfer in writing, sufficient to pass the 'jproperty out of
which the fund is to arise, as follows:

1. If such accumulation is directed to commence on the creation of
the interest out of which the income is to arise, it mugt be made for the
benefit of one or more minors then in being, and terminate at the
expiration of their minority; or,

2. If such accumulation is directed to commence at any time subse-
quent to the creation of the interest out of which the income is to
arise, it must commence within the time in this title permitted for the
vesting of future interests, and during the minority of the beneficiaries,
and terminate at the expiration of such minority.

§ 207. Void beyond minority.] If, in either of the cases men-
tioned in the last section, the direction for an accumulation is for a
longer term than during the minority of the beneficiaries, the direc-
tion only, whether separable or not from other provisions of the instru-
ment, is void as respects tb6 time beyond such minority.

§ 208. Probate power.] When a minor, for.whose benefit an accu-
mulation has been directed, is destitute of other sufficient means of
support and education, the probate court, upon application, may
direct a suitable sum to be applied thereto, of the fund.

CHAPTER 111.

WGHTS of 0WNER8.

§ 209. Own includes gain.] The owner of a thing owns also all its
products and accessions.

§ 210. Undirected income.] When, in consequence of a valid limi-
tation of future interest, there is a suspension of the power of aliena-
tion or of the ownership, during the continuation of which the income
is undisposed of, and no valid (firection for its accumulation is given.

234 Propbbty in Gknbral. Civil Code,

such income belongs to the persons presumptively entitled to the next
eventual interest.

CHAPTEE IV.

TERMINATION OP OWNERSHIP.

§ 21 1. Succession defeats contingency.] A futurerinterest, depend-
ing on the contingency of the death of any person without successors,
heirs, issue, or children, is defeated by the birth of a posthumous child
of such person, capable of taking by succession.

§ 212. Future interest defeated.] A future interest may be
defeated in any manner, or by any act or means, which the party cre-
ating such interest provided for or authorissed in the creation thereof;
nor IS a future interest thus liable to be defeated, to be on that ground
adjudged void in its creation.

I 213. When not.] No future interest can be defeated or barred
by any alienation or other act of the owner of the intermediate or

Erecedent intewet, nor by any destruction of such precedent interest
y forfeiture, surrender, merger, or otherwise, except as provided by
the next section, or where a forfeiture is imposed by statute as a
penalty for the violation thereof.

§ 214. Same.] No future interest, valid in its creutiou, is defeated
by the determination of the precedent interest before the happening
of the contingency on which the future interest is limited to take
effect; but should such contingency afterwards happen, the future
interest takes effect in the same manner and to the same extent as if
the precedent interest had continued to the same period.

TITLE III.

GENERAL DEFINITION.

§ 215. Income includes.] The income of property, as^ the term is
used in this part of the code, includes the rents and profits of real

Property, the interest of money, dividends upon stock, and other pro-
uce of personal property.

§ 216. What creates limitation.] The delivery of the grant, where
a limitation, condition, or future interest is created by grant, and the
death of the testator, where it is created hj will, is to be deemed the
time of the creation of the limitation, condition, or interest within the
meaning of this part of the code.

Ciml CodA, Real Pbopbbtt. 235

PA.RT II.

Real- or Imniovable Property.

Title I. General Provisions.

11. Estates in Real Property.

III. Rights and Obligations of Owners.

IV. Uses and Trusts,
V. Powers.

TITLE I.

GENERAL PROVISIONS.

§ 217. Law governing.] Real property within this territory is

?ovemed by the law of this territory, except where the title is in the
Inited States.

TITLE IL

ESTATES IN REAL PROPERTY.

Chapter I. Estates in General.

II. Termination of Estates.
III. Servitudes.

CHAPTER I.
estates in general.

§ 218. Duration classed.] Estates in real property, in respect to
the duration of their enjoyment, are either:

1. Estates of inheritance, or perpetual estates.

2. Estates for life.

8. Estates for years; or,

4. Estates at will.

§ 219. Fee defined.] Every state of inheritance is a fee, and every
such estate, when not defeasible or conditional is a fee simple or an
absolute fea

236 Real Propebty. Civil Code.

§ 220. Estates tail are fees.] Estates tail are abolished; and
every estate which would be at common law adjudged to be a fee tail,
is a fee simple, and if no valid remainder is limited thereon, is a fee
simple absolute.

§ 221. Limitation of.] Where a remainder in fee is limited upon
any estate, which would by the common law be adjudged a fee tail,
such remainder is valid as a contingent limitation upon a fee, and vests
in possession, on the death of the first taker, without issue living at
the time of his death.

§ 222. Freehold defined.] Estates of inheritance and for life, are
called estates of freehold; estates for years are chattels real; and
estates at will are chattel interests, but are not liable as such to sale
on execution.

§ 223. Same.] An estate during the life of a third person, whether
limited to heirs or otherwise, is a tireehold.

§ 224. Future how limited.] A future estate may be limited by
the act of the party to commence in possession at a future day, either
without the intervention of a precedent estate, or on the termination,
by lapse of time, or otherwise, of a precedent estate, created at the
same time.

§ 225. Reversion defined.] A reversion is the residue of an estate
left, by operation of law, in the ^antor, or his successors, or in the
successors of a testator, commencing in possession on the determina-
tion of a particular estate granted or devised.

§ 226. Remainder.] When a future estate, other thim a reversion,
is dependent on a precedent estate, it may be called a remainder, and
may be created and transferred by that name.

§ 227. Suspension.] The absolute ownership of a term of years,
cannot be suspended for a Jonger period than the absolute power of
alienation can be suspended in respect to a fee.

§ 228. Further defined.] The suspension df all power to alienate
the subject of a trust, other than a power to exchange it for other
property to be held upon the same trust, or to sell it and reinvest the
proceeds to be held upon the same trust, is a suspension of the power
of alienation within the meaning of section two nundred and one.

§ 229. Remainder in fee.] A contingent rem linder in fee may be
created on a prior remainder in fee, to take effect in the event that the
persons to whom the first remainder is limited die under the age of
twenty-one years, or upon any other contingency by which the estate
of such persons may be determined, before tney attain majority.

§ 230. Same on other estates.] Subject to the rules of this title,
and of part one of this division, a freehold estate, as well as a chattel real,
may be created to commence at a future day; an estate for life may be
created in a term of years, and a remainder limited thereon; a remain-
der of a freehold or chattel real, either contingent or vested, may be
created, expectant on the determination of a term of years; and a fee
may be limited on a fee, upon a contingency, which, if it should occur,
must happen within the period prescribed in this title.

§ 231. Subsequent life estates void.] Successive estates for life
cannot be limited, except to persons in being at the creation thereof,
and all life estates subsequent to those of persons in being are void;
and upon the death of those persons, the remainder, if valid' i^ its ere-

Civil Code. Real Property. 237

»

ation, takes effect in the same manner as if no other life estate had
Deen created.

§ 232. RsMAiNDBR ON SUCCESSIVE LIVES.] No remainder can be cre-
ated upon successive estates for life, provided for in the preceding
section, unless such remainder is in fee; nor can a remainder be
created, ujpon such estate in a term for years, unless it is for the whole
residue of such term,

§ 233. On term void, unless.] A contingent remainder cannot be
created on a term of years, unless the nature of the contingency on
which it is limited is such, that the remainder must vest in interest
during the continuance or at the termination of lives in being at the
creation of such remainder.

§ 234. To PERSONS IN BEING.] No estate for life can be limited as a
remainder on a term of years, except to a person in being at the
creation of such estate.

§ 235. Conditional limitation.] A remainder may be limited on a
contingency which, in case it should happen, will operate to abridge
or determine the precedent estate; aijd, every such remainder is to be
deemed a conditional limitation:

§ 236. To HEIRS OP BODY.] Whcu a remainder is limited to the heirs,
or heirs of the body, of a person to whom a life estate in the same
property is given, the persons who, on the termination of the life
estate, are the successors or heirs of the body of the owner for life, are
entitled to take, by virtue of the remainder so limited to them, and
not as mere successors of the owner for life.

§ 237. On death op first taker.] When a remainder, on an estate
for life, or for years, is not limited on a contingency defeating or
avoiding such precedent estate, it is to be deemed intended to take
effect only on the death of the first taker, or the expiration, by lapse
of time, of such term of years.

§ 238. Unexecuted power.] A general or special power of appoint-
ment does not prevent the vesting of a future estate, limited to take
effect in case such power is not executed.

CHAPTER II.

TERMINATION OF ESTATES.

§ 239. Of estate at will.] A tenancy, or other estate at will, how-
ever created, may be terminated by the landlord's giving notice to the
tenant, in the. manner prescribed by the next section, to remove from
the premises within a period specified in the notice, of not less than
one month.

§ 240. . Notice served.] The notice prescribed by the last section
must be in writing, and must be served by delivering the same to the
tenant, or to some person of discretion residing on the premises, or if
neither can, with reasonable diligence, be found, the notice may be
served by aflBxing it on a conspicious part of the premises, where it
may be conveniently read.

288 Real Propbrty. CipU Code.

§ 241. Subsequent action. After the notice prescribed by sections
two hundred and thirty nine and two hundred and forty has
been served in the manner therein directed, and the period spec-
ified by such notice has expired, but not before, the landlord may
re-enter or proceed according to law to recover possession.

§ 242. Three days' notice.] Whenever the right of re-entry is
given to a grantor or lessor, in any grant or lease, or otherwise, such
re-entry may be made at any time after the right has accrued, upon
three days' previous written notice of intention to re-enter, served in
the mode prescribed by section two hundred and forty.

§ 243. Without notice.] An action for the possession of real
property leased or granted, with a right of re-entry, may be main-
tained at any time after the right to re-enter has accrued, without the
notice prescribed in section two hundred and forty-two.

CHAPTER III.

servitudes.

§ 244. Easements attached to other lands.] The following land
burdens or servitudes upon land, may be attached to other land as
incidents or appurtenances, and are then called easements.

1 . The right of pasture.

2. The right of fishing.

3. The right of taking game.

4. The right of way.

5. The right of taking water, wood, minerals, and other things.

6. The right of transacting business upon land.

7. The right of conducting lawful spoi-ts upon land.

8. Tne right of I'eceiving air, light, or heat from or over, or discharg-
ing the same upon or over, land.

y. The right of receiving water from or discharging the same upon
land.

10. The right of flooding land.

11. The right of having water flow without diminution or disturb-
ance of any kind.

12. The right of using a wall as a party wall.

13. The right of receiving more than natural support from adjacent
land or things affixed thereto.

14. The right of having the whole of a division fence maintained
by a cotennmous owner.

15. The right of having public conveyances stopped, or of stopping
the same on land.

16. The right of a seat in church.

17. The right of burial.

8 245. Others not attached.] The following land burdens or servi-
tudes upon land, may be granted and held, though not attached to
land:

1. The right to pasture, and of fishing, and taking game.

2. The right of a seat in church.

Civil Code.

Real Propbbty.

289

3. The right of burial.

4. The right of taking rents and tolls.

5. The right of way.

6. The right of taking water, wood, minerals, or other things.

§ 246. Dominant tenement.] The land to which an easement is
attached is called the dominant tenement; the land upon which a bur-
den or servitude is laid is called the servient tenement.

§ 247. Who can create.] A servitude can be created only by one
who ha« a vested estate in the servient tenement.

§ 248. Who not hold.] A ser\itude thereon cannot be held by the
owner of the servient tenement.

§ 249. Extent of.] The extent of a servitude is determined by the
terms of the grant, or the nature of the enjoyment by which it was
acquired.

§ 250. Partition of,] In case of partition of the dominant tene-
ment, the burden must oe appoi'tionea, according to the division of the
dominant tenement, but not m such a way ai^i ta in(*rea«e the burden
upon the servient tenement.

§ 251. Right of future owner.] The owner of a future estate in
a dominant tenement may use easements attached thereto, for the
purpose of viewing waste, demanding rent, or removing an obstruc-
tion to the enjoyment of 8ucli easements, although sncli tenement is
occupied by a tenant.

§ 252. Right of action.] The owner of any estate in a dominant
tenement, or the occupant of such tenement, may maintain an action
for the enforcement of an easement attached thereto.

f 253. Same.] The (iw^ner in fee of a servient tenement, may main-
tain an action for the possession of the land, against any one unlaw-
fully possessed thereof, though a servitude exists thereon in favor of
the public.

8 254. Extinguishment.) A servitude is extinguished:

1. By the vesting of the right to the servitude and the right to the
servient tenement in the same person.

2. By the destruction of the servient tenement.

3. By the performance of any act upon either tenement, by the owner
of the servitude, or with his assent, which is incompatible with its
nature or excercise; or,

4. When the servitude was acquired by enjoyment, bv disuse thereof
by the owner of the servitude for the period prescribed for acquiring
title by enjoyment.

M

240 R?iAL PicoPERTY. Civil Code.

TITLE TIT.

RIGHTS AND OBLIGATIONS OF OWNERS.

CHAPTER I.

RIGHTS OP OWNERS.

Article I. Incidents of Ownership.
II. Boundaries.

Article I. — Incidents of Ownership.

§ 255. Land includes water.] The owner of the land owns water
standing thereon, or flowing over or under its surface, but not forming
a definite stream. Water running in a definite stream, formed by
nature over or under the surface, may be used by him as long as it
remains there ; but he may not prevent the natural flow of the stream,
or of the natural spring from which it commences its definite course,
nor pursue nor pollute the same.

§ 256. Inheritance protected.] The owner of a life estate may
use the land in the same manner as the owner of a fee simple, except
that he must do no act to the injury of the inheritance.

§ 257. Rights of tenant.] A tenant for years, or at will, unless he
is a wrong-doer, by holding over, may occupy the building, take the
annual products of the soil, work mines and quarries open at the com-
mencement of his tenancy, and cultivate and harvest the crops grow-
ing at the end of his tenancy.

I 258. Limited by instrument.] A tenant for years, or at will, has
no other rights to the property than such as are given to him by the
agreement or instrument by which his tenancy is acquired, or by the
last section.

§ 259. Succession to rights.] A person to whom any real property
is transferred or devised, upon which rent has been reserved, or to
whom any such rent is transferred, is entitled to the same remedies
for recovery of rent, for non-performance of any of the terms of the
lease, or for any waste or cause of forfeiture, as his grantor or devisor
might have had.

§ 260. Assignees op lessor or lessee.] Whatever remedies the les-
sor of anv real property has against his immediate lessee for the
breach of any agreement in the lease, or for recovery of the pos-
session he has against the assignees of the lessee, for any cause
of action accruing while they are such assignees, except where the
assignment is made by way of security for a loan, and is not

Civil Code, ReAl Property. 241

accompanied by possession of the premises.. Whatever remedies the
lessee of any real property may have against his immediate lessor, for
the breach of any agreement in the lease, he may have against the
assigns of the lessor, and the assigns of the lessee may have against
the lessor and his assigns, except upon covenants against incum-
brances, or relating to the title or possession of the premises.

§ 261. Notice to change terms.] In all leases of lands or tene-
ments, or of anj^ interest therein, from month to month, the landlord
may, upon giving notice in writing at least fifteen days before the
expiration of the month, change the terms of the lease, to take eftect
at the expiration of the montn. The notice, when served upon the
tenant, shall of itself operate and be effectual to create and establish
as a part of the lease, the terms, rent, and conditions specified in the
notice, if the tenant shall continue to hold the premises after the
expiration of the month.

§ 262. Life lease rent.] Rent due upon a lease for life may be
recovered in the same manner as upon a lease for years.

§ 263. After death.] Rent dependent on the life of a person may
be recovered after, as well as before, his death.

§ 264. Right of action.] A person having an estate in fee, in
remainder or reversion, may maintain an action for any injury done to
the inheritance, notwithstanding an interventing estate for life or
years, and although, after its commission, his estate is transferred, and
he has no interest in the property at the commencement of the action.

Article II. -Boundaries.

§ 265. Above and below surface.] The owner of land in fee has
the right to the surface, and to everything permanently situated
beneath or above it.

§ 266. Banks and beds of streams.] Except where the grant under
which the land is held indicates a different intent, the owner of the
upland when it borders upon a navigable lake, or stream, takes to the
edge of the lake or stream at low-water mark, and all navigable rivers
shall remain and be deemed public highways. In all cases where the
opposite banks of any streams, not navigable, belong to different per-
sons, the stream and the bed thereof shall become common to both.

§ 267. Highways.] An owner of land, bounded by a road or street,
is presumed to own to the center of the way, but the contrary may be
shown.

§ 268. Lateral support.] Each coterminous owner is entitled to
the lateral and subjacent support which his land receives from the
adjoining land, subject to the right of the owner of the adjoining land
to make proper and usual excavations on the same for purposes of
construction, on using ordinary care and skill, and taking reasonable
precaution to sustain the land of the other, and living previous reas-
onable notice to the other of his intention to mase such excavations.

§ 269. Trees on land.] Trees whose trunks stand wholly upon the
land of one owner, belong exclusively to him, although their roots
grow into the land of another.

§ 270. Same on line.] Trees whose trunks stand partly on the land
of two or more coterminous owners, belong to them m common.

16

242 tlEAL pROPBRTt. CivU Code.

CHAPTER II.

OBLIGATIONS OF OWNERS.

§ 271. Repairs and taxes.] The owner of a life estate must keep
the buildings and fences in repair from ordinary waste, and must pay
the taxes and other annual charges, and a just proportion of extraordi-
nary assessments benefitting the whole inheritance.

§ 272. Boundaries — fences.] Coterminous owners are mutually
bound equally to maintain :

1. The boundaries and monuments between them.

2. The fences between them, unless one of them chooses to let his
land lie open as a public common, in which case, if he afterwards
incloses it, he must refund to the other a just proportion of the value,
at that time, of any division fence made by the latter.

TITLE IV.

USES AND TRUSTS. .

§ 273. Limitation.] Uses and trusts, in relation to real property,
are those only which are specified in this title.

§ 274. LeIsal estate confirmed.] Every estate which is now held
as a use, executed under any former statute of this territory, is con-
firmed as a legal estate.

§ 275. Definition.] Every person who, by virtue of any transferor
devise, is entitled to the actual possession of real property, and the
receipt of the rents and profits thereof, is to be deemed to have a legal
estate therein, of the same quality and duration, and subject to
the same conditions, as his beneficial interest.

§ 276. Trust valid.] The last section does not divest the estate of
any trustee in a trust heretofore existing, where the title of such
trustee is not merely nominal, but is connected with some power of
actual disposition or management in relation to the real property
which is the subject of the trust.

§ 277. Direct transfer.] Every disposition of real property,
whether by transfer or will, must be made directly to the person m
whom the right to the possession and profits is intended to be vested,
and not to any other, to the use of or m trust for such person; and if
made to any person, to the use of or in trust for another, no estate or
interest vests in the trustee; but he must execute a release of the
property to the beneficiary on demand, the latter paying the expense
thereof.

§ 278. Limitation of preceding.] The preceding sections of this
title do not extend to trust arising or resulting by implication of law,
nor prevent or affect the creation of such express trusts as are herein-
after authorized and defined.

Civil Code. Real Property. 243

§ 279. Bbquisites op trusts.] No trust in relation to real property
is valid, unless created or declared :

1. By a written instrument, subscribed by the trustee, or by his
agent, thereto authorized by writing.

2. By the instrument under which the trustee claims the estate
affected; or,

3. By operation of law.

§ 280. Trust presumed.] When a transfer of real property is made
to one person, and the consideration therefor is paid by or for another,
a trust is presumed to result in favor of the person by or for whom
such payment is made.

§ 281. Innocent purchaser.] No implied or resulting trust can

i)rejudice the rights of a purchaser or incumbrancer of real property,
or value and without notice of the trust.

§ 282. Purposes op trusts.] Express trusts may be created for any
of the following purposes:

1. To sell real property, and apply or dispose of the proceeds in
accordance with the instrument creating the trust.

2. To mortgage or lease real property for the benefit of annuitants
or other legatees, or for the purpose of satisfying any charge thereon.

3. To receive the rents and profits of real property, and pay them
to or apply them to the use of any person, whether ascertained
at the time of the creation of the trust or not, for himself or for his
family, during the life of such person, or for any shorter term, subject
to the rules of title two of this part; or,

4. To receive the rents and profits of real property, and to accu-
mulate the same for the purposes and within the umits prescribed by
the same title,

g 288. A TRUST POWER.] A devise of real property to executors or
other trustees, to be sold or mortgaged, where the trustees are not also
empowered to receive the rents and profits, vests.no estate in them;
but the trust is valid as a power in trust.

g 284. Liability op surplus.] Where a trust is created to receive
the rents and profits of real property, and no valid direction for accu-
mulation is given, the surplus of such rents and profits, beyond the
sum t6at may be necessary for the education and support of the per-
son for whose benefit the trust is created, is liable to the claims of the
creditors of such person, in the same manner as personal property
which cannot be reached by execution.

§ 285. Certain trust a power.] Where an express trust in rela-
tion to real property is created for any purpose not enumerated in the
preceding sections, such trust vests no estate in the trustees; but the
trusty if directing or authorizing the performance of any act which
may be lawfully performed under a power, is valid as a power in trust,
subject to the provisions in relation to such powers, contained in title
five of this part.

§ 286. PovnER in trust.] Nothing in this title prevents the creation
of a power in trust for any of the purposes for which an express trust
may be created.

§ 287. Realty passes.] In every case where a trust is valid as a
power in trust, the real property to which the trust relates, remains in

244 Real pROPBBTt. Civil Code.

»

or passes by succession to, the persons otherwise entitled, subject to
the execution of the trust as a power in trust.

§ 288. Estate in trustees limited.] Except as hereinafter other-
wise provided, every express trust in real property, valid as such, in its
creation, vests the whole estate in the trustees, subject Only to the
execution of the trust. The beneficiaries take no estate or interest in
the property, but may enforce the performance of the trust.

§ 289. Contingent trust.] Notwithstanding anything contained in
the last section, the author of a trust may, in its creation, prescribe to
whom the real property, to which the trust relates, shall belong in the
event of the failure or termination of the trust, and may transfer or
devise such property, subject to the execution of the trust.

§ 290. Legal estate.] The grantee, or devisee of real property sub-
ject to a trust, acquires a legal estate in the property, as against all
persons, except the trustees and those lawfully claiming under them.

§ 291. Undisposed estates.] Where an express trust is created in
relation to real property, every estate not embraced in the trusty and
not otherwise disposed of, is left in the author of the trust, or his
successors.

§ 292. Limited disposal.] The beneficiary of a trust for the receipt
of the rents and profits of real property, or for the payment of an
annuity out of such rents and profits, may be restrained from disposing
of his interest in soch trust during his life, or for a term of years, by
the instrument creating the trust.

§293. Grant separate from trust.] Where an express trust is
created in relation to real property, but is not contained or declared in
the grant to the trustee, or in an instrument signed by him, and
recorded in the same office with the grant to the trustee, such grant
must be deemed absolute in favor of the subsequent creditors of the
trustee not having notice of the trust, and in favor of purchasers from
such trustee without notice, and for a valuable consideration.

§ 294. Not separate.] Where a trust in relation to real property is
expressed in the instrument creating the estate, every transfer or
otner act of the trustees, in contravention of the trust, is absolutely
void.

§ 295. Trust ceases.] When the purpose for which an express trust
was created ceases, the estate of the trustee also ceases.

TITLE Y.

POWERS.

§ 296. Specified only.] Powers, in relation to real property, are
those only which are specified in this title.

§ 297. Exclusion.] The provisions of this title do not extend to a
simple power of attorney to convey real property in the name of the
owner and for his benefit.

§ 298. Definition.] A power, as the term is used in this title, is
an authority to do some act in relation to real property, or to the

Civil Code. Rbal Propbbtt. 245

creation or revocation of an estate therein, dr a charge thereon, which
the owner granting or reserving such power might nimself perform
for any purpose.

§ 299. Author defined.] The author of a power, as the term is
used in this title, is the person by whom a power is created, whether
by grant or devise; and the holder of a power is the person in whom
a power is vested, whether by grant, devise, or reservation.

§ 300. PovERS GLASSED.] Powors are general or special, and bene-
ficial or in trust.

§ 301. General powers.] A power is general when it authorizes
the alienation or incumbrance of a fee in the property embraced
therein, by grant, will, or change, or any of them, in favor of any
person whatever.

§ 302. Special;] A power is special :

1. When a person or class of persons is designated, to whom the
disposition of property under the power is to be made ; or,

2. When it authorizes the alienation or incumbrance, by means of
a grant will, or charge, of only an estate less than a fee.

§ 303. Beneficial.] A power is beneficial when no person other
than its holder has, by the terms of its creation, any interest in its
execution.

§ 304. Power in trust.] A power is in trust when any person or
elass of persons, other than its holder, has, by the terms of its creation,
an interest in its execution.

§ 305. General — ^same.] A general power is in trust when any
person or 'class of persons, other than its holder, is designated as
entitled to the proceeds of the disposition or charge authorized by the
Bower, or to any portion of the proceeds or other benefits to result
from its execution.

§ 306. Special— same.] A si>ecial power is in trust:

1. When the disposition or charge which it authorizes is limited to
be made to any person or class of persons other than the holder of
the power; or,

2. When any person or class of persons, other than the holder, is
designated as entitled to any benefit from the disposition or charge
authorized by the power.

§ 307. Capacity to create.] No person is capable of creating a
power who is not at the same time capable of granting some estate in
the property to which the power relates.

§ 308. Vests in whom.] A power may be vested in any pereon.

I 309. How CREATED.] A powcr may be created only:

1. By a suitable clause contained in a grant of some estate in the
real property to which the power relates, or in an agreement to execute
mch a grant: or.

2. By a devise contained in a will.

§ 310. Reserved power.] The grantor in any conveyance may
reserve to himself any power, beneficial or in truj<t, which he might
lawAilly grant to another: and every power thus reserved is subject to
the provisions of this title in the ?ame manner as if granted to
anoth^-.

J 311. I&RcvocABLE uin.s88.] Evcrv' power, beneficial or in trust.

246 RejOj Propebtt. Civil Code.

is irrevocable unless an authority to revoke it is given or reserved in
the instrument creating the power.

§ 312. LiEK OF POWER DEFINED.] A powor is a lien upon the real
property which it embraces from the time the instrument in which it
IS contained takes effect; except that against creditors, purchasers^ and
incumbrancers, in good faith and without notice, from any person
having an estate in such real property, the power is a lien only from
the time the instrument in which it is contained is duly recorded.

§ 314. Capacity lacking.] A power cannot be executed by any
person not capable of disposing of real property.

§ 315. Married woman.] A marriea woman may execute a power
during her marriage, without the concurrence of her husband, unless
otherwise prescribed by the terms of the power.

§ 316. Same— acknowledgment.] No power can be executed by a
married woman before she attains her majority, nor without being
acknowledged by her in the manner prescribed by the chapter on
recording transfers.

§ 317. Execution of power.] A power can be executed only by a
written instrument which would be sufficient to pass the estate or
interest intended to pass under the power, if the person executing the
power was the actual owner.

§ 318. Many — survivor.] Where a power is vested in several per-
sons, all must unite in its execution; but in case any one or more of
them is dead, the power may be executed by the survivor or survivors,
unless otherwise prescribed by the terms of the power.

§ 319. Execution by will.] Where a power to dispose of real
property is confined to a disposition by devise or will, the instrument
of execution must be a will duly executed according to the provisions
of the title on wills.

§ 320. Same by grant.] Where a power is confined to a disposition
by grant, it cannot be executed by will, even though the disposition is
not intended to take eflfect until after the death oi the person execut-
ing the power.

I 321. Peculiar EXECUTION.] Where the author of a power has
directed or authorized it to be executed by an instrument which would
not be sufficient in law to pass the estate, the power is not void, but
its execution is to be governed by the rules before prescribed in this
title.

§322. Form ALiTiES- SURPLUSAGE. 1 Where- the author of a power
has directed any formalities to be observed in its execution, in addition
to those which would be sufficient to pass the estate, the observance
of such additional formalities is not necessary to a valid execution of
the power.

§ S23. Trivial conditions.] Where the conditions annexed to a
power are merely nominal, and evince no intention of actual benefit
to the party to whom, or in whose favor, they are to be performed,
they may be wholly disregarded in the execution of the power.

§ 324. Binding conditions.] With the exceptions contained in the
preceding sections, the intentions of the author of a power as to the
mode, time and conditions of its execution must be observed, subject
to the power of a district court to supply a defective execution in the

Civil Code. Real Property. 247

cases provided in sections three hundred and thirty-three and three
hundred and fifty-seven.

§ 325. Consent how expressed.] When the consent of a third per-
son to the execution of a power is requisite, such consent must be
expressed in the instrument by which the power is executed, or be
certified in writing thereon. In the first case the instrument of exe-
cution; in the second, the certificate must be subscribed by the party
whose consent is required; and to entitle the instrument to be re-
corded, such signature must be duly proved or acknowledged, accord-
ing to the chapter on recording transfers.

§ 326. Consent of all survivors.] Where the consent of several
persons to the execution of a power is - requisite, all must consent
thereto; but, in case any one or more of them is dead, the consent of
the survivors is sufiicient, unless otherwise prescribed by the terms of
the nower.

§ 327. Validity without recital.] Every instrument executed by
the holder of a power, conveying an estate or Creating a charge which
such holder would have no right to convey or create, except by virtue
of his power, is to be deemed a valid execution of the power, even
though not recited or referred to therein.

§ 328. Conveyances, except will.] Every instrument, except a will,
in execution of a power, even though the power is one of revocittion
only, is to be deemed a conveyance within the meaning of the chapter
on recording transfers.

§ 329. Valid to extend power.] A disposition of charge, by virtue
of a power, more extensive than was authorized thereby, is not there-
fore void; but every estate or interest so created, so far as it is
embraced by the terms of the power, is valid.

§ 330. Time runs prom.] The period duripg which the absolute right
of alienation may be suspended by an instrument in execution of a
* power, must be compiitea, not from the -date of the instrument, but
firom the time of the creation of the power.

§ 331. Legality of estate.] No estate or interest can be given or
limited to any person, by an instrument in execution of a power,
which could not- nave been given or limited at the time of the creation
of the power.

% 332. Married woman's power.] When a married woman, entitled
to an estate in fee, is authorized by a power to dispose of such estate
during her marriage, she may, by virtue of such power, create any
estate which she might create if unmarried.

§ 333. Relief from defects.] Purchasers for a valuable considera-
tioUy claiming under a defective execution of a power, are entitled to
the same relief as similar purchasers claiming under a defective con-
veyance from an actual owner.

§ 334. Fraud.] Instruments in execution of a power are effected
by fraud in the same manner as like instruments executed by owners
or trustees.

§335. Power to WOMAN. ] A general and beneficial power is valid,
whach ^ves to a married woman power to dispose, during her marriage
and without the concurrence of her husband, of a present or future
estate in real property conveyed or devised to her in fee.

248 Ebal Property. Civil Code.

§ 336. Power become due.] Where an absolute power of disposi-
tion, not accompanied by any trust, is given to the owner of a partic-
ular estate for life or years, such estate is changed into a fee, absolute
in favor of creditoi^, purchasers, and incumbrancers, but subject to
any future estates limited thereon, in case the power should not be
executed, or the property should not be sold for the satisfaction of
debts.

§ 337. Same.] Where an absolute power of disposition, not accom-
panied by any trust, is given to any person to whom no particular
estate is limited, such person also takes a fee subject to any future
estate that may be limited thereon, but absolute in favor of creditors,
purchasers and incumbrancers.

§ 338. Same.] In all cases where an absolute power of disposition
is given, not accompanied by any trust, and no remainder is limited
on the estate of the holder of the power, he is entitled to an absolute fee.

§ 339, Same.] Where a general and beneficial power to devise the
inheritance .is given to the owner of an estate for life or for years, he
is deemed to possess an absolute power of disposition, within the
meaning of the last three sections.

§ 340. Power absolute.] Every power of disposition is deemed
absolute, by means of which the holder is enabled in his lifetime to
dispQse of the entire fee, in possession or in expectancy, for his own
benefit.

§341. Same reserved.] Where the grantor in any conveyance
reserves to himself for his own benefit, an absolute power of revoca-
tion, such grantor is still to be deemed the absolute owner of the estate
conveyed, so far as the rights of creditors and purchasers are con-
cerned.

8 342. Valid beneficial power.] A special and beneficial power is
valid which is granted :

1. To a married woman ,to dispose, during the marriage, of any
estate less than a fee, belonging to her, in the property to which the
power relates; or,

2. To the owner of a life estate in the property embraced in the
power to make leases, commencing in possession during his life.

§ 343. Powers to lease.] A special and beneficial power to make
leases of agricultural land for more than ten years, or of town or city
lots for more than twenty years, is void only as to the time beyond ten
or twenty years, and authorizes leases for those terms or less.

§ 344. Annexed to estate.] The power of the owner of a life
estate to make leases is not transferable as a separate interest, but is
annexed to his estate, and will pass, unless specially excepted, by any
grant of such estate. If specially excepted in any such grant, it is
extinguished.

§ 345. Extinguishing grant.] The power of the owner of a life
estate to make leases may be released by him to any person entitled
to a future estate in the property, and is thereupon extinguished.

§ 346. Mortgage binds power.] A mortgage executed oy the owner
of a life estate having a power to make leases, or by a married woman,
by virtue of any beneficial power, does not extinguish or suspend the
power: but the power is bound by the mortgage m the same manner
as the real property embraced therein.

^

Civil Code. ' Bx^i. Propbett. . S}i8

•

§ 347. Effects of same.] The effects on the power, of a lien by
mortgage, such as is mentioned in the last section, are:

1. That the mortgagee is Qntitle4 to an execution of the power, so far
as the satisfaction of his liefn tnay require it; and,

2. That any subsequent estate created by the owner, in execution of
the power, becomes subject to the mortgage in the same manner as if
in terms embraced therein.

§ 348. Qkedito^ cfLAiMSv] Every special and bejieficial power is
|» liable to the claims of creditors, in the same manner as other interests
that cannot be reached by execution, and the execution of the power
may be adjudged for the benefit of the creditors entitled.

§ 349. Other powers void.] No beneficial power, general or special,
not already specified and defined in this title, can hereafter be created.

§ 350. Enforceable powers.] Every trust power, unless its execu-
tion is made expressly to depend on the will of the trustee, is imper-
ative, and imposes a duty on the trustee, the performance of which
may be compelled for the benefit of the parties mterested.

§ 351. Same.] A trust power does no* cease to be imperative where
the trustee has the right to select any, and exclude others, of the per-
sons designated as the beneficiaries of the trust.

§ 352. Equal shares.] Where a disposition under a power is di-
rected to be made to, among, or between several persons, without any
specification of the share or sum to be allotted to each, all the persons
designated are entitled in equal proportion.

§ 353. Discretionary power.] Where the terms of a power import
that the estate or fund is to be distributed among several persons
designated, in such manner or proportions as the trustee of the power
may think proper, the trustee may allot the whole to any one or more
of such persons in exclusion of the others.

§ 354. Death of trustee.] If the trustee of a power, with the
right of selection, dies leaving the power unexecuted, its execution
must be adjudged for the benefit equally of all persons designated as
objects of the trust.

I 355. District court.] Where a power in trust is created by will,
and the testator has omitted to designate, expressly or by necessary
implication, by whom the power is to be executed, its execution
devolves on the district court.

§ 356. Crei)itor6.] The execution, in whole or in part, of any trust
power, may be adjudged for the benefit of the creditors or assignees of
any person entitled, as one of the beneficiaries of the trust, to compel
its execution, when his interest is transferable.

§ 357. Defects cured.] Where the execution of a power in trust
is defective, in whole or in part, under the provisions oi this title, its
proper execution may be adjudged in favor of the persons designated
as tne objects of the trust.

§ 358. Certain law applies.] The provisions of this title on trust
saving the rights of other persons from prejudice by the misconduct of
trustees and authorizing the court to remove and appoint trustees; the
provisions of the title on succession, devolving express trusts upon the
court on the death of the trustee; and the provisions of section two
hundred and ninetv-five in title on uses and trusts, apply equally to
power in trust, and the trustees of such power.

250 PxftsONAt pBOPtitTT. Civtl Code.

Personal or Movable Property.

Title I. Personal Property in General.

II. Particular Kinds of Personal Property.

TITLE !•

PERSONAL PROPERTY IN GENJCRAIi.

§ 359. Follows domicile.] If there is no law to the contrary in the
place where personal property is situated, it is deemed to follow the
person of its owner, and is governed by the law of his domicile.

i

TITLE IL

particular kinds op personal property.

Chapter I. Things in action.

II. Shipping.

lit Corporations.

IV. Products of the mind.

V. Other kinds of personal property.

OHAPTEE I.
things in action.

§ 360. Definition. | A thing in action is a right to recover money
or other personal property, by a judicial proceeding.

{^ fi61. Transferable.] A thing in action, arising out of the viola-
tion of a right of property, or out of an obligation, may be transferred
by the owner. Upon the death of the owner it passes to his personal
representatives, except where, in the cases provided by law, it passes
to his devisees, or successor in office.

CivU Codi. PUMMWAX.' PWHraftTY. WL

CHAPTER IL

SHIPPING.

.1 1 » «

Article L General Provisions.
II. Rules of Navigation.

Articlb I. — QuirBKAL Provisions.

I 362. Ship defined.] The term "ship," or "shipping/' when used in
this code, includes steamboats, sailing vessels, canal boats, barges, and
every structure adapted to be navigated from place to place for the
transportation of merchandise or persons.

§ 363. Appurtenances.] All thmgs belon^ng to the owners, which
are on board a ship, and are connected with its proper use, for the ob-
jects of the voyage and adventure in which the ship is engaged, are
deemed its appurtenances.

§ 364. Navigation classed.] Ships are engaged either in foreign or
domestic navigation. Ships are engaged in foreign navigation when
passing to or &om a foreign country ; and in domestic navigation when
passing from place to place within the United States.

§ 365. Domestic and foreign ships.] A ship in a port of the state
or territory to which it belongs, is called a domestic ship; in another
port it is called a foreign ship.

§ 366. Court power.] If a ship belongs to several persons, not part-
ners, and they differ as to its use or repair, the controversy may be
determined .by any court of competent jurisdiction. •

§ 367. Possessor liable.] If the owner of a ship commits its pos-
session and navigation to another, that other, and not the owner, is
responsible for its repairs and, supplies.

§ 368. Congress regulates.] The registry, enrollment, and license
of ships, are regulated by acts of congress.

Article II.— Rules of Navigation.

§ 369. Meeting ships — limitation.] In the case of ships meeting,
the following rules must be observed in addition to those prescribed
by any statutes of this territory, which relate to navigation:

1. Whenever any ship, proceeding in one direction, meets another
ship, proceeding in another direction, so that if both ships were to
continue their respective courses they would pass so near as to involve
the risk of a collision, the helms of both ships must be put to port so
as to pass on the port side of each other, except where the circum-
stances of the case are such as to render a departure from the rule
necessary in order to avoid immediate danger, and subject also to a
due regard to the dangers of navigation.

SSS PsBMiiui£ PBOiwmr. Civil Cede.

2. A steamer navigating a narrow channel must, whenever it is safe
and practicable, keep to that side of that fair way or mid-channel
whicn lies on the starboatfl sMe of thfe steamer. A steamer when
passing another steamer in such channel, must always leave the other
upon the larboard side.

3. When steamers must inevitably or necessarily cross so near that
by continuing their respective courses, there would be a risk of collis-
ion, each vessel must put her helm to port, so as always to pass on the
larboard side of each other;

The rules of this section do not apply to any case for which a differ-
ent rule is provided by the regulations for the government of pilots of
steamers approaching each other within sound of the steam whistle,
or by the regulations concerning lights upon steamers, or other mat-
ters prescribed under authority of any act of congress.

§ 370. Infringement — damages.] If it appears that a collision was
occasioned by failure to observe any rule of the foregoing section, the
owner of the ship by which such rule is infringed cannot recover com-
pensation for damans sustained by the ship in such collision, unless it
appears that the circumstances of the case made a departure from the
rule necessary.

§ 371. Default presumed.] Damage to person or property arising
from the failure of a ship to observe any rule of section three hundred
and sixty nine, must be deemed to have been occasioned by the will-
ful default of the person in charge of the deck of such ship at the
time, unless it appears that the circumstances of the case made a
departure from the rule necessary.

§ 372. Liability defined.] Losses caused by collision are to be
borne as follows:

1. If either party wa§ exclusively in fault he must bear his own loss,
and compensate the other for any loss he has sustained.

2. If neither was in fault, the loss must be borne by him on whom
it falls.

3. If both were in fault the loss is to be ecjually divided, unless it
appears that there was a great disparity in fault, in which case the
loss must be equitably apportioned; or,

4. If it cannot be ascertained where the fault lies, the loss must be
equally divided.

Civil Code. Pbbsonal Propbbty, 253

CHAPTER III.

CORPORATIONS.

Article I. The Creation of Corporations.

II. Corporate Stock.

III. Corporate Powers.

IV. Corporate Record?.

V. Dissolution of Corporations.

VI. Assessments of Stock.

VII. Judgment and Sale of Franchise.

VIII. Examination of Corporations,

. IX. Railroad Corporations. OL.^6 ^ vl\M "f

i CLaw . \\i<i X. Wagon Roads.

XI. Insurance Corporations.

^ XIL Mining, Manufacturing, &c.

4 Xm. Bridge Corporations.

XIV. Religious, Education, Ac.

XV. Agricultural Fair.

XVI. Existing Corporations.

XVII. Foreign Corporations.

Article I. — The Creation of Corporations.

§ 373. Definition.] A corporation is a creature of the law. having
certain powers and duties of a natural person. Being created by the
law, it may continue for any length of time which the law prescribes.

§ 874. Crbated by statute.] A corporation can only be created
by authority of a statute. But the statute may be special for a par-
ticular corporation, or general for a number of corporations.

§ 375. Reserted power.] Every grant of corporate power is sub-
ject to alteration^ suspension, or repeal, in the discretion of the
legislature.

§ 376. Inquiry, how hade.] The due incorporation of any Company,
claiming in good faith to be a corporation under this chapter, and
doing business as such, or its right to exercise corporate powers, shall
not be inquired into, collateral^, in any private suit to wnich such de
facto corporation may be a party; but such ^ inquiry may be had, and
action brought, at the suit of the territory; in the manner prescribed
in the code of civil procedure.

§ 377. Name sequirbd.] Eveiv corporation must have a corporate
name, which it has no power to change unless expressly authorized by
law; but the misnomer of any corporation in any written instrument
does not invalidate ikb instrument if it can be reasonably ascertained
from it what corporation is intended.

§ 378. CLAStssD.] Corporations are either:

1. Public; or,

2. Private.

§379. Public— HOW rbottlated.] Public corporations are formed
or organized for the government of a portion of the territory. Such
corporations are regulated by the political code, or by local statute.

254 Pbbsonal PROFBRTt. Civil Code.

§ 380. Private purposes.] Private corporations are formed for the
purpose of religion, benevolence, education^ art, literature, or profit;
and all corporations not public, are private.

§ 381, Articles— OFFICERS. 1 The instrument by which a private
corporation is formed is called "articles of incorporation," or "certificate
of incorporation.'' And one-third of the officers of such corporation
shall be residents of this territorj^

§ 382. Acceptance ABSOiiUTS.] In order to constitute a private
corporation, there must not only be a statutory grant of corporate
authority, but an acceptance, of that grant by a majority of the
corporators, or their agents. The acceptance cannot be conditional or
qualified.

§ 383. How Pi^ovBp.J Except when otherwise expressly provided,
the acceptanc€t;of a grant of corpcwate authority may be proved like
any other fact. * ; -

§ 384. Private limited.] Private corporations can be formed by
the voluntary association of a^y three or more persons, and only as
provided in this chapter. The legislative assembly cannot grant pri-
vate charters or especial privileges, but ttiey may by general incorpo-
ration acts, permit persons to associate themselves together as bocfies
corporate, for mining, majoiufacturing, and other industrial pursuits, or
the construction or operation of railroads, wagon roads, irrigating
ditches, and the colonization and improvement- oijands in connection
therewith; or for colleges, seminaries, churches, libraries, or any
benevolent, charitable, or scientific association, and for such other
purposes as congress may hereafter authorize. [Section 1889 of
revised statutes of United -States.]

§ 885. Religious limited.] No corporation or association for relig-
ious or charitable purposes shall acquire or hold real estate in this
territory, during the existence of the territorial government, of a
greater value than fifty thousand dollars; and all real estate acquired
or held by such corporations or associations contrary hereto, shall be
forfeited and escheat to the United States; but existing vested rights
in real estate shall not be impaired by the provisions of this section.
[Section 1890, revised statutes of the United States.]

§ 386. Contents of abtiolbb.] Articles of incorporation must be
prepared setting forth:

1. The name of the corporation.

2. The purpose for which it is formed.

3. The place wheare its principal business is to be transacted.

4. The term for which it is to exist.

5. The number of its directors or trustees, and the names and resi-
dences of such of them who are to serve until the election of such
ofGLcers, and their qualifications.

6. If there be a capital stock, its amount, and the number of shares
into which it is divided.

§ 387. Railroad and waqon road.] The articles of incorporation of
any railroad or wagon road must also state :

1. The kind of road intended to be constructed.

2.9The place firom and to which it is intended to be run, and all
thelintermediate branches.

3. The counties through which it is intended to be run.

Cwil Code. Personal Property. 255

4. The estimated length and cost of the road.

§ 388. Three residents.] The articles of incorporation must be
subscribed by three or more persons, one-third of whom must be resi-
dents of this territory, and acknowledged by each before some officer
authorized to take and certify acknowledgments of conveyances of
real property.

§ 389. Secretary's certificate.] Upon filing the articles of incor-
pjoration with the secretary of the territory, the secretary of the ter-
ritory must issue to the corporation over the great seal of the terri-
tory, a certificate that a copy of the articles containing the required
statement of facts, has been filed in his office; and thereupon the per-
sons signing the articles, and their associates and successors, shall be
a body politic and corporate, by the name and for the purposes stated in
the certificate.

§ 390. Record by secretary.] Upon the filing of any articles of
incorporation and copy thereof, as in the last section is prescribed,
tiie secretary of the territory must record the same in a book to be
kept in his office for that purpose, to be called "the book of corpora-
tions," with the date of filing.

§ 391. Copy — evidence.] A copy of any articles of incorporation
filed in pursuance of this chapter, and certified by the secretary of the
territory, must be received in all courts and other places as prima facie
evidence of the facts therein stated, and of the existence of such cor-
poration.

§ 392. Definitions.] The owners of shares in a corporation which
has a capital stock, are called stockholders. If a corporation has no
capital stock, the corporators and their successors are called members.

§ 393. Legal representatives.] The shares of stock of an estate
of a minor, or insane person, may, at all elections and meetings of a
corporation, be represented by his guardian, and of a deceased person
by his executor or administrator.

§ 394. Married woman.] Shares of stock in corporations held or
owned by a married woman may be transferred bv ner, her agent or
attorney, in the same manner as if she were a femme sole ; and any
proxy or power given by her, touching any shares of stock of any
corporation owned by her, is valid and binding the same as if she were
unmarried.

Article IL — Cobporatb Stock.

§ 395. Subscription enforced.] A subscription to the stock of a
corporation about to be formed, is to be held for the benefit of the
corporation when it is formed, and may be enforced by it.

§ 396. Books opened.] After the secretary of the territory issues
the certificate of incorporation, as provided in section three hundred
and eighty-nine, article one of this chapter, the directors named in the
articles of incorporation must proceed in the manner specified, or pro-
vided in their by-laws; or, if none, then in such manner as they may
by order adopt, to open books of subscription to the capital stock then
onsubscribea; and to secure subscriptions to the full amount of the
fixed capital; and to levy assessments and installments thereon, and
to collect the same, as in article six of this chapter assessments of
stock are provided to be made.

256 Personal Property. Civil Code.

§ 397. Forfeit or recover.] When a corporation is authorized by
the terras of subscription, or otherwise, to forfeit stock for non-pay-
ment, it mav either forfeit the stock, or recover the amount of the
subscription, but it cannot do both.

§398. Stock, NEGOTIABLE.] 1. All corporations fbr profit must issue
certificates of stock when fully paid up, signed by the president and
secretary, and may provide in their by-laws for issuing certificates
prior to the full payment, under such restrictions and for such pur-
poses as their by-laws may provide.

2. Whenever the capital stock of any corporation is divided into
shares, and certificates therefor are issued, such shares of stock are
personal property, and may be transferred by indorsement by the sig-
nature of the proprietor, or his attorney or legal representative, and
delivery of the certificate; but such transfer is not valid, except
between the parties thereto, until the same is so entered upon the
books of the corporation, as to show the named of the parties by and
to whom transferred, the number, or designation of the snares, and the
date of the transfer.

§ 399. Excess void.] A corporation whose capital is limited by its
charter, either in amount or in nutnber of shares, cannot issue valid
certificates in excess of the limit thus prescribed.

§ 400. Corporation owning stock.] Unless otherwise provided, a
corporation may purchase, hold, and transfer shares of its own stock,
from its surplus profits, or as provided in the article on assessments of
stock.

§ 401. Dividend to whom.] A dividend belongs to the person in
whose name the stock stands upon the books of the corporation on the
day when it becomes payable.

Article III. — Corporate Powers.

§ 402. Powers classed.] Every corporation, as such, has power:

1. To have succession by its corporate name, for the period limited;
and when no period is limited, perpetually.

2. To sue and be sued; to complain and defend in any court.

3. To make and use a common seal, and alter the same at pleasure.

4. To purchase, hold, transfer, and convey such real ana personal
property as the legitimate purposes of the corporation may require,
not exceeding, in any case, any amount limited by l^w.

5. To appoint such subordinate ofiicers and agents as the business of
the corporation may require, and to allow them suitable Compensa.tion.

6. To make by-laws, not inconsistent with the law of the land, for
the management of its property, the regulation of its affairs, and for
the transfer of its stock.

7. To admit stockholders or members, and to sell their stock or
shares for the payment of assessments or installments. t

8. To enter into any obligations, or contracts, essential to the trans-
action of its ordinary aiBfairs, or for the purposes of the corporation.

In addition to the above enumerated powers, and to those expressly
given in any other statute under which it is incorporated, no corpora-
tion shall possess' or exercise any corporate pbwfers, except such as are
necessary to the exercise of the powers enumerated and given.

Civil Code. Personal Peopbett. 257

§ 403. By -LAWS" WHO adopt.] .Every corporation formed under this
chapter must, within one month after filing articles of incorporation,
adopt a code of by-laws for its government, not inconsistent with the
laws of the United States, or of this territory. Th6 assent of stock-
holders representing a majority of all the subscribed capital stock, or
of a majonty of the members, if there be no capital stock, is necessary
to adopt by-laws, if they are adopted, at a meeting called for that
purpose; and in the event of such meeting being called, two weeks'
notice of the same, by advertisement in some newspaper published in
liie county in which the principal place of business of the corporation
is located, or if none is published therein, then in a paper published in
an adjoining county, must be given by order of the acting president.
The written assent of the holders of two-thirds of the stocK, or of two-
thirds of the members, if there be no capital stock, shall be effectual
to adopt a code of by-laws without a meeting for that purpose.

§ 404. Scope of by-laws.I A corporation may, by its by-laws, where
no other provision is specially made, provide:

1. The time, place, and manner of calling and conducting its
meetings.

2. The number of stockholders or members constituting a quorum.

3. The mode of voting by proxy.

4. The time of the annual election for directors, and the mode and
manner of giving notice thereof.

5. The compensation and duties of officers.

6. The manner of election, and the tenure of office of all officei^a
other than the directors; and,

7. Suitable penalties for violations of by-laws, not exceeding, in any
case, onQ hundred dollars for any one offense.

§ 405. Recced "CERTIFICATE — ^kepeal of by-laws.] All by-laws
adopted must be certified by a majority of the directors and secretary
of the corporation, and copied in a legible hand in some book kept in
the office of the corporation, to be known as **the book of by-laws,"
and no by-law shall take effect until so copied, and the book shall then
be open to the inspection of the public during office hours of each day
except holidays. The by-laws may be repealed or amended, or new
by-laws may be adopted at the annual meeting, or at any other meet-
ing of the stockholders or members, called tor that purpose by the
directors, by a vote representing two-thirds of the subscribed Btock, or
by two-thirds of the members; or the power to repeal and amend the
by-laws, and to adopt new bv-laws, may, by a similar vote at any such
meeting, be delegated to the board of directors. The power, when
delegated, may be revoked by a similar vote, at any regular meeting
of the stockholders or members. Whenever any amendment or new
by-law is adopted, it shall be copied in the book of by-laws with the
ori^nal by-laws, and immediately after them, and shall not take effect
until so copied. If any by-law be repealed, the fact of repeal, with the
date of the meeting at which the repeal was enacted, shall be stated
in the said book, and until so stated the repeal shall not take effect.

§ 406. Election OF direotoes.! h The directors of a corporation
must "be elected annually by the stockholders or members, and if no
provision is made in the by-laws for the time of election, the election
must be held on the first Tuesday in June. Notice of such election

17

k'

258 Personal Property. Civil Code,

must be Kiven, and the right to vote determined, as provided in section
four hundred and three.

2. At the first meeting at which the by-laws are adopted, or at such
subsequent meeting as mav be then designated, directors must be
elected to hold their offices lor one year and until their successors are
elected and qualified.

3. AH election* of directors must be by ballot, and a vote of stock-
holders representing a majority of the subscribed capital stock, or of
a majority of the members, is necessary to a choice. If there be cap-
ital stock in the corporation, each stockholder is entitled to one vote
for each share held by him at all such elections, and also at all
elections at other meetings of stockholders.

§ 407. Number and power of directors. ] The corporate powers,
business and property of all corporations formed under this chapter
piust be exercised, cx)nducted, and controlled by a board of not less
than three nor more than eleven directors, to be elected from among
t.he holders of stock; or where there is no capital stock, then from the
members of such corporation. Directors of corporations for profit
must be holders of stock therein in an amount to be fixed by the
by-laws of the corporation. Directors of all other corpiorations must
be members thereoi. Unless a auorum is present and acting, no busi-
ness performed or act done is valid as against the corporation. When-
ever a vacancy occurs in the office of director, unless the by-laws of
the corporation otherwise provide, such vacancy must be filled by an
appointee of the board.

§ 408. Organization.] Immediately after their election, the direc-
tors must organize by the election of a president, who must be one of
their number, a secretary and treasurer. They must perform the
duties enjoined on them by law and the by-laws of the corporation.
A majority of the directors is a sufficient number to form a board for
the transaction of business, and every decision of a majority of the
directors forming such board, made when duly assembled, is valid as a
corporate act.

§409. Dividends, debts, bad faith, limitations, and penalty.]
The directors of corporations must not make dividends except from
the surplus profit arising from the business thereof; nor must they
divide, withdraw, or pay to the stockholders, or any of them, any part
of the capital stock; nor must they create debts beyond their sub-
scribed capital stock, or reduce or increase their capital stock except
as specially provided by law. For a violation of the provisions of this
section, the directors under whose administration the same may have
happened (except those who may have caused their dissent therefrom,
to be entered at large on the minutes of the directors at the time, or
were not present when the same did happen), are, in their individual
and private capacity, jointly and severally liable to the corporation,
and to the creditors thereof, in the event of its dissolution, to the full
amount of the capital stock so divided, withdrawn, paid out, or reduced,
or debt contracted; and no statute of limitations is a bar to any suit
against such directors for any sums for which they are made liable by
this section. There mdy, however, be a division and distribution of
the capital stock of any corporation which remains after the payment

I-

Cfvil Code. Personal Property. 259

of all its debts, upon its dissolution or the expiration of its term of
existence.

2. Any officer of a corporation who willfully gives a certificate, or
willfully makes an official report, public notice, or entry in any of the
records or books of the corporation, concerning the corporation or its
business, which is false in any material representation, shall be liable
for all the damages resulting therefrom to any person injured thereby:
and if two or more officers unite or participate in the commission of
any of the acts herein designated, they shall be jointly and severally
liable.

§ 410. Removal of directors.) No director shall be removed from
office, unless by a vote of two-thirds of the members, or of stockholders
holding two-thirds of the capital stock, at a general meeting held after
notice of the time and place, and of the intention to propose such
removal. Meetings of stockholders for this purpose may be called by
the president, or by a majority of the directors, or by members or
stockholders holding at least one-half of the votes. Such calls must
be in writing and addressed to the secretary, who must thereupon give
notice of the time, place, and object of the meeting, and by whose
order it was called. If the secretary refuse to give the notice, or if
there is none, the call may be addressed directly to the members or
stockholders, and be served as a notice, in which case it must specify
the time and place of meeting. The notice must be given in the man-
ner provided m section four hundred and three, unless other express
provision has been made therefor in the by-laws. In case of removal,
the vacancy may be filled by election at the same meeting.

§ 411. Quorum — proxy.] At all elections or votes had for any pur-
pose, there must be a majority of the subscribed capital stock or of
the members, represented either in person, or by proxy, in writing.
Every person acting therein, in person, or by proxy, or representative,
must be a member thereof or a bona fide stockholder, having stock in
his own name on the stock books of the corporation at least, ten days
prior to the election. Any vote or election had other than in accord-
ance with the provisions of this article is voidable at the instance of
absent stockholders or members, and may be set aside by petition to
the district court of the county where the same was held. Any regu-
lar or called meeting of the stockholders or members, may adjourn
from day to day, or from time to time, if for any reason there is not
present a majority of the subscribed stock or members, or no election
or majority vote had; such adjournment and the reasons therefor being
recorded in the journal of proceedings of the board of directors.

§ 412. Election failing — action — place of meeting — justice op
PEACE MAY CALL.] If from any cause an election does not take place
on the day appointed in the by-laws, it may be held on any day tnere-
after as is provided for in such by-laws, or to which such election may
be adjourned or ordered by the directors. If an election has not been
held at the appointed time, and no adjourned or other meeting for the
purpose has been ordered by the directors, a meetinff may be called by
the stockholders, as provided in section four hundred and ten.

2. Upon the application of any person or body corporate aggrieved
by any election held by any corporate body, or any proceedings there-
of, the district judge of the district in which such election is held,

260 Pbrsonajl Property. CivH Code.

must proceed forthwith summarily to hear the allisgatioiis and proofs
of the parties, or otherwise inquire into the matters of complaint, and
thereupon confirm the election, order a new one, or direct such other
relief in the premises as accords with right and justice. Before any
proceedings are had under this section, live days' notice thereof must
be given to the adverse party, or those to be affected thereby.

3. The meetings of the stockholders and board of directors of a
corporation must be held at its ofifice or principal place of business.

4. When no provision is made in the by-laws for regular meetings
of the directors and the mode of calling special meetings, all meet-
ings must be called by special notice in writing, to be given to each
director by the secretory, on the order of the president, or if there be
none, on the order of two directors.

5. Whenever, from any cause, there is no person authorized to call
or to preside at a meeting of a corporation, any justice of the peace
of the county where such corporation is established, may> on written
application of three or more of the stockholders or of the members
thereof, issue a warrant to. one of the stockholders or members, direct-
ing him to call a meeting of the corporation, by giving the notice
required, and the justice may in the same warrant direct such person
to preside at such meeting until a clerk is chosen and (jualitied, if
there is no other officer present legally authorized to preside thereat.

^A A.4\il^ § 413. Individual liability.] Each stockholder of a corporation is
individually and personally liable for such proportion of its debts and
lilBibilities as the amount of stock or shares owned by him bears to the
whole of the subscribed capital stock or shares of the corporation, and
for a like proportion only of each debt or claim against the corpora-
tion. Any creditor of the corporation may institute joint or several
actions against any of its stockholders, for the proportion of his claim
payable by each, and in such action the court must ascertain the pro-
portion of the claim or debt for which each defendant is liable, and a
several judgment must be rendered against each in conformity there-
with. If any stockholder pays his proportion of any debt due from
the corporation, incurred while he was such stockholder, he is relieved
from any further personal liability for such debt; and if an action has
been brought agaanst him upon such debt, it shall be dismissed as to
him, upon his paying the costs, or such proportion thereof as may be
properly chargeable against him. The liability of each stockholder ia
determined by the amount of stock or shares owned by him at the
time the debt or liability was incurred, and such liability is not released
by any subsequent transfer of stock. The term ''stockholder," as used
in this section, shall apply not only to such persona as appear by the
books of the corporation to be such, but also to every equitable owner
of stock, although the «ame appear on the books in the name of
another; and also to every person who has advanced the installments
or purchase money of stock in the name of a minor, so long as the
latter remains a minor; and also to every guardian or other trustee
who voluntarily invests any trust funds in the stock. Trust funds in
the hands of a guardian or. trustee shall not be liable, under the pro-
visions of this section, by reason of any such investment, nor shall
the person for whose benefit the investment is made be responsible in
respect to the stock, until he becomes competent and able to control

Civil Code. Pebsonal Property. 261

the same; but the responsibility of the guardian or trustee making the
investment shall continue until that period. Stock held as collateral
security, or by a trustee, or in any other representative capacity, does
not make the holder thereof a stockholder within the meaning of this
section, except in the cases above mentioned, so as to charge him with
any proportion of the debts or liabilities of the corporation; but the
pledgor, or person, or estate represented is to be deemed the stockholder
as respects such liability. In corporations having no capital stock,
each member is individually and personally liable for his proportion
of its debts and liabilities, and similar actions may be brought against
him, either alone or jointly with other members, to enforce such
liability as by this section may be brought against one or more stock-
holders, and similar judgments may be rendered.

§ 414. Valid uncalled meeting.] When all the stockholders or
members of a corporation are present at any meeting, however called
or notified, and sign a written consent thereto on the record of such
meeting, the doings of such meeting are as valid as if had at a meet-
ing legally called and noticed. The stockholders or members of such
corporation, when so assembled, may elect officers to fill all vacancies
then existing, and may act upon such other business as might lawfully
be transacted at regular meetings of the corporation.

§ 415. Non-resident stock transfers;] When the shares of stock
in a corporation are owned by parties residing out of the territory, the
president, secretary, and directors of the corporation, before entering
any transfer of the shares on its books, or issuing a certificate thereof
to the transferee, may require from the attorney or agent of the non-
resident owner, or from the person claiming under the transfer, an
affidavit or other evidence that the non-resid^nt owner was alive at
the date of the transfer, and if such affidavit or other satisfactory
evidence be not furnished, may require from the attorney, agent, or
claimant, a bond of indemnity, witn two sureties satisfactory to the
officers of the corporation, or if not so satisfactory, then one approved
by the district judge of the county in which the principal office of the
corporation is situated, conditioned to protect the corporation aeainst
any liability to the legal repi-esentatives of the owner of the snares,
in case of his or her death before the transfer, and if such affidavit or
other evidence or bond be not furnished when required, as herein pro-
vided, neither the corporation nor any officer thereof shall be liable
for refusing to enter the transfer on the books of the corporation.

§ 416. Changing amount of stock.] Every corporation may
increase or diminish its capital stock at a meeting called for that pur-
pose by the directors, as follows:

1. Notice of the time and place of the meeting, stating its object
and the amount to which it is proposed to increase or diminish its
capital stock, must be personally served on each stockholder resident
in the temtory, at his place of residence if known, and if not known,
at the place where the principal office of the corporation is situated,
and be published in a newspaper published in the county of such prin-
cipal place of business, once a week tor four weeks successively.

2. The capital stock must in no case be diminished to an amount
less than the indebtedness of the oorporation, or the estimated cost

262 Personal Property. Civil Code.

of the works which it may be the purpose of the corporation to con-
struct.

3. At least two-thirds of the entire c^ipital stock must be repre-
sented by the vote in favor of the increase or diminution, before it
can be effected,

4. A certificate must be signed by the chairman and secretary of the
meeting, and a majority of the directors, showing a compliance with
the requirements of this section, the amount to which the capital
stock has been increased or diminished, the amount of stock repre-
sented at the meeting, and the vote by which the object was accom-
plished.

5. The certificate must be tiled in the office of the .register of deeds
where the ori^nal articles of incorporation were filed, and a certified
copy thereof m the office of the secretary of the territory, and there-
upon the capital stock shall be so increased or diminished.

6. The written assent of the holders of three-fourths of the sub-
scribed capital stock shall be as effectual to authorize- the increase or
diminution of the capital stock, as if a meeting were called and held;
and upon such written assent, the directors may proceed to make the
certificate herein provided for.

Article IV. — Corporate Records.

§ 417. Entries required in journal — stock book — publicity.] All
corporations for profit are required to keep a record of all their busi-
ness transactions; a journal of all meetings of their directors, members,
or stockholders, with the time and place of holding the same, whether
regular or special, and if special, its object, how authorized, and the
notice thereof given. The record must embrace every act done or
ordered to be done; who were present and who were absent; and, if
requested by any director, member, or stockholder, the time shall be
noted when he entered the meeting or obtained leave of absence there-
from. On a similar request the ayes and noes must be taken on any
proposition, and a record thereof made. On a similar request the pro-
test of any director, member, or stockholder, or any action or proposed
action must be entered in full; all such records to be open to the
inspection of any director, member, stockholder, or creditor of the
corporation.

2. In addition to the records above required to be kept, corporations
for profit must keep a book, to be known as the " Stock and Transfer
Book," in which must be kept a record of all stock; the names
of the stockholders or members, alphabetically arranged; install-
ments paid or unpaid: assessments levied and paid or unpaid; a
statement of every alienation, sale or transfer of stock made, the
date thereof, and by and to whom ; and all such other records as the
by-laws prescribe. Corporations for religious and benevolent purposes
must provide in their by-laws for such records to be kept as may be
necessary. Such stock and transfer book must be kept open to the in-
spection of any stockholder, member or creditor,

CiM Code. Pkrsonal Property. . 263

Article V.— Dissolution of Corporations.

418. Involuntary — voluntary, how.] A corporation is dissolved:
By the expiration of the time limited by its articles of incorpo-
ration.

2. Its involuntary dissolution is provided for in chapter XXVI, of the
code of civil procedure.

3. If voluntary, its dissolution may be effected in the following
manner:

1. A coi'poration may be dissolved by the district court of the county
where its office, or principal place of business is situated, upon its vol-
untary application for that purpose.

2. The application must be in writing, and must set forth :

That at a meetinfj of the stockholders or members called for that
purpose, the dissolution of the corporation was resolved upon by a
two-thirds vote of all the stockholders or members; and that all claims
and demands -against the corporatiori have been satisfied and
discharged.

3. The application must be signed by a majority of the board of
directors, trustees, or other officers having the management of the
affairs of the corporation, and must be venfied in the same manner as
a complaint in a civil action.

4. If the court is satisfied that the application is in conformity with
this article, it must order the application to be filed, and that the clerk
give not less than thirty nor more than fifty days' notice of the appli-
cation, by publication in some newspaper published in the county, and
if there are none such, then by advertisement posted up in five of the
principal public places in the county.

5. At any time before the expiration of the time of publication, any
person may file his objections to the application.

6. After- the time of publication has expired, the court may, upon
five days' notice to the persons who have filed objections, or without
further notice, if no objections have been filed, proceed to hear and
determine the application; and if all the statements therein made are
shown to be true, the court must declare the corporation dissolved.

7. The application, notices and proof of publication, objections (if
any), and declaration of dissolution, constitute the judgment roll, and
from the judgment an appeal may be taken in the same manner as in
other actions. ,

§ 419. Lapse by non-user.] If a corporation does not organize and
commence the transaction of business, or the construction of its works,
within one year from the date of its incorporation, its corporate
powers cease.

§ 420. Directors trustees on dissolution.] Unless other persons
are appointed by the court, the directors or managers of the affairs of
such corporation at the time of its dissolution are trustees of the cred-
itors ana stockholders or members of the corporation dissolved, and
have full power to settle the affaii*s of the corporation, and to collect
and i)ay debts and divide among the stockholciers the property which
remains after the payment of debts and necessary expenses; and for
such purposes may maintain or defend actions in their own names by
the style of the trustees of such corporation dissolved, naming it; and

262 Personal Property. Ciril Code.

of the works which it may be the purpose of the corporation to con-
struct.

3. At least two-thirds of the entire capital stock must be repre-
sented by the vote in favor of the increase or diminution, before it
can be effected.

4. A certificate must be signed by the chairman and secretary of the
meeting, and a majority of the directors, showing a compliance with
the requirements of this section, the amount to which the capital
stock has been increased or diminished, the amount of stock repre-
sented at the meeting, and the vote by which the object was accom-
plished.

5. The certilicate must be tiled in the office of the .register of deeds
where the ori^nal articles of incorporation were filed, and a certified
copy thereof m the office of the secretary of the territory, and there-
upon the capital stock shall be so increased or diminished.

6. The wntten assent of the holders of three-fourths of the sub-
scribed capital stock shall be as effectual to authorize- the increase or
diminution of the capital stock, as if a meeting were called and held;
and upon such written assent, the directors may proceed to make the
certificate herein provided for.

Article IV. — Corporate Records.

§ 417. Entries required in journal — stock book — publicity.] All
corporations for profit are required to keep a record of all their busi-
ness transactions; a journal of all meetings of their directors, members,
or stockholders, with the time and place of holding the same, whether
regular or special, and if special, its object, how authorized, and the
notice thereof given. The record must embrace every act done or
ordered to be done; who were present and who were absent; and, if
requested by any director, member, or stockholder, the time shall be
noted when he entered the meeting or obtained leave of absence there-
from. On a similar request the ayes and noes must be taken on any
proposition, and a record thereof made. On a similar request the pro-
test of any director, member, or stockholder, or any action or proposed
action must be entered in full; all such records to be open to the
inspection of any director, member, stockholder, or creditor of the
corporation.

2. In addition to the records above required to be kept, corporations
for profit must keep a book, to be known as the " Stock and Transfer
Book," in which must be kept a record of all stock; the names
of the stockholders or members, alphabetically arranged; install-
ments paid or unpaid; assessments levied and paid or unpaid; a
statement of every alienation, sale or transfer of stock made, the
date thereof, and by and to whom; and all such other records as the
by-laws prescribe. Corporations for religious and benevolent purposes
must provide in their by-laws for such records to be kept as may be
necessary. Such stock and transfer book must be kept open to the in-
spection of any stockholder, member or creditor.

Cioil Code. Pbi^sonal Property. . 263

Articlb V. — Dissolution of Corporations.

§ 418. Involuntary — voluntary, how.] A corporation is dissolved:

1. By the expiration of the time limited by ite articles of incorpo-
ration.

2. Its involuntary dissolution is provided for in chapter XXVI, of the
code of civil procedure.

3. If voluntary, its dissolution may be effected in the following
manner:

1. A coi-poration may be dissolved by the district court of the county
where its office, or principal place of business is situated, upon its vol-
untary application for that purpose.

2. The application must be in writing, and must set forth:

That at a meetinfj of the stockholders or members called for that
purpose, the dissolution of the corporation was resolved upon by a
two-thirds vote of all the stockholders or members; and that all claims
and demands against the corporatioii have been satisfied and
discharged.

3. The application must be signed l)y a majority of the board of
directors, trustees, or other officers having the management of the
affairs of the corporation, and must be verified in the same manner as
a complaint in a civil action.

4. If the court is satisfied that the application is in conformity with
this article, it must order the application to be filed, and that the clerk
give not less than thirty nor more than fifty days' notice of the appli-
cation, by publication in some newspaper published in the county, and
if there are none such, then by advertisement posted up in five of the
principal public places in the county.

5. At any time before the expiration of the time of publication, any
person may file his objections to the application.

6. After, the time of publication has expired, the coui^t may, upon
fi.ve days' notice to the persons who have filed objections, or without
further notice, if no objections have been filed, proceed to hear and
determine the application; and if all the statements therein made are
shown to be true, the court must declare the corporation dissolved.

7. The application, notices and proof of publication, objections (if
any), and declaration of dissolution, constitute the judgment roll, and
from the judgment an appeal may be taken in the same manner as in
other actions. ,

§ 419. Lapse by non-user.] If a corporation does not organize and
commence the transaction of business, or the constructiop ot its works,
within one year from the date of its incorporation, its corporate
powers cease.

§ 420. Directors trustees on dissolution.] Unless other persons
are appointed by the court, the directors or managers of the affairs of
such corporation at the time of its dissolution are trustees of the cred-
itors ana stockholders or members of the corporation dissolved, and
have full power to settle the affairs of the corporation, and to collect
and i)ay debts and divide among the stockhomers the property which
remains after the payment of debts and necessary expenses; and for
such purposes may maintain or defend actions in their own names by
the style of the trustees of such corporation dissolved, naming it; and

264 Personal Pbopebtt. Civil C6ie.

«

no action whereto any such corporation is a party shall abate by reason
of such dissolution.

§ 421. Liability.] The trustees mentioned in the preceding section
are jointly and severally responsible to the creditors, stockholders, and
members of the corporation, to the extent of its property in their
hands.

§ 422. Revival.] A corporation once dissolved can be revived only
by the same power by whicli it could be created.

Article VI. -Assessments of Stock.

§423. Levied WHEN.] The directors of any corporation formed
or existing under the laws of this territory, after one-fourth of its
capital stock has been subscribed, may, for the purpose of paying ex-
penses, conducting business, or paying debts, levy and collect assess-
ments upon the subscribed capital stock thereof, in the manner and
form ana to the extent provided herein.

§ 424. Limitation of.] No assessment must exceed ten per cent, of
the amount of the capital stock named in the articles of incorpoi-a-
tion, except in the cases in this section otherwise provided for, as fol-
lows:

1. If the whole capital of a corporation has not been paid up, and
the corporation is unable to meet its liabilities or to satisfy the claims
of its creditors, the assessment may be for the full amount unpaid
upon the capital stock; or if a less amount is sufficient, then it may
be for such a pei^centage as will raise that amount.

2. The directors of railroad corporations may assess the capital
stock in installments of not more than ten per cent, per month, unless
in the articles of incorporation it is otherwise provicfed.

3. The directors of fire or marine insurance corporations may assess
such a percentage of the capital stock as they deem proper.

§ 425. New assessment only.] No assessment must be levied while
any portion of a previous one remains unpaid, unless:

1. The power of the corporation has been exercised in accordance
with the provisions of this article for the purpose of collecting such
previous assessment.

2. The collection of the previous assessment has been enjoined: or,
8. The assessment falls within the provisions of either the first,

second, or third subdivision of section four hundred and twenty-four.

§ 426. Requisites of assessment.] Every otder levj-^ing an assess-
ment must specify the amouiit thereof, when, to whom, and where
payable; fix a day^ subsequent to the full term of publication of the
assessment notice, on which the unpaid assessments shall bQ delin-
quentj not less than thirty nor more than sixty days from the time of
making the order levying the assessment; and a day for the sale of
delinquent stock, not less than fifteen nor more than sixty drfys from
the day the stock is declared delinquent.

§ 427. Form of notice.] Upon the making of the order, the secre-
tary shall cause to be published a notice thereof, in the following
form: . .

(Name of corpdrktion in full. Location of principal place of bubiness).
Notice jis Ji^reby given that at a nieeting of the directors, beld on the (date), an asseanneat of
amount) per share was levied upon the capital stock of the corporation, payable (when, to whom.

Civil Code. Pergonal PROPBBty. 265

and where). Any stock up^n which this assessment shall remain unpaid on the (day fixed)
will be delinquent and advertised for sale at public auction, and, unless payment is made before,
will be aold on the (day appointed), to pay the delinquent assessment, together with costs of
advertising and expenses of sale.

(Signature of Secretary, with location of office.)

§ 428. SbrvIos therbof.] The notice must be personally served
upon each stockholder, or in lieu of personal service, must be sent
through the mail, addressed to each stockholder at his place of resi-
dence, if known, and if not known, at the place where the principal
office of the corporation is situated, and be published once a week for
four successive weeks, in some newspaper of general circulation and
devoted to the publication of general news, published at the place
designated in the articles of incorporation as the principal place of
business, and also in some newspaper published in the county in which
the works of the corporation are situated, if a paper be published
therein. If the works of the corporation are not within a state or
territory of the United States, publication in a paper of the place
where they ajre situated is not necessary. K there be no newspaper
published at the place designated as the principal place of business of
tiie corporation, then the publication must be made in some other
newspaper of the county, if there be one, and if there be none, then
m a newspaper published in an adjoining county.

§ 429. Demnqubnt levy.] If any portion of the assessment men-
tioned in the notice remains unpaid on the day specified therein for
declaring the stock delinquent, tne secretary must, unless otherwise
ordered by the board of directors, cause to be published in the same
papers in which the notice hereinbefore provided for shall have been
published, a notice substantially in the following form:

(Name in full. Location of principal place of business.)
KonOE.-^bere h delinquent upon tbe following described stock, on account of ssRessment
levied on the (date), (and assessmente levied previous thereto, if any,) the several amounts set
opposite the. names of the respective sharchoklers, as follows: (Names, number of ceitificate.
number Of shares, amount). Aiid in accordance with law (and an order of the board of direc-
tors iBade't)a'the>(date^, if aay such order shall have been made), so many shares of each parcel
of such stoclf as may be. pecesaary, will be sold, at the (particular place), on the (date), at (the
hour) of such day, to pay delinquent assessments theroon, together with costs of advertising
and expanses of the sale.

I < (Name of Secretary, with location of office.)

§ 480. CbNTENTS OF NOTICE.] The notice must specify every certfi-
cate of stock, the number of shares it represents, and the amount
due thereon, except where certificates may not have been issued to
parties entitled thereto, in which case the number of shares and
amount due thereon, together with the fact that the certificate for
such shares have not been issued, must be stated.

§ 431. Publication.] The notice, when published in a daily pai^er,
must be published for ten days, excluding Sundays and holidays, pre-
vious to the day of sale. When published in a weekly paper, it must
be published in each issue for two weeks previous to the day of sale.
The first publication of all delinquent sales must be at least fifteen
days jprior to the day of sale.

I 432. Effect of same.] By the publication of the notice the cor-
poration acquires lurisdiction to sell and convey a perfect title to all
of the stock described in the notice of sale upon which any portion of
the aissessment, or costs, oir advertising remains unpaid at the hour

»«.

266 Personal Property. Civil. Code.

appointed for the sale, but must sell no more of such stock than is
necessary to pay the assessments due and costs of sale.

§ 433. Manner op sale.] On the day, at the place, and at the time
appointed in the notice of sale, the secretary must, unless otherwise
ordered by the directors, sell, or cause to be sold at public auction, to
the highest bidder for cash, so many shares of each parcel of the
described stock as may be necessary to pay the assessment and charges
thereon, according to the terms of sale; if payment is made before the
time fixed for sale, the party paying is only required to pay the actual
cost of advertising, in addition to the assessment.

§ 434. Bidder defined. | The person oflfering at such sale to pay
the assessment and costs for the smallest number of shares or fraction
of a share is the highest bidder, and the stock purchased must be
transferred to him on the stock books of the corporation, on payment
of the assessment and costs.

§ 435. Bidding in.] If at the sale of stock no bidder offers the
amount o.f the assessment and costs and charges due, the same may be
bid in and purchased by the corporation, through the secretary, presi-
dent, or any director thereof, at the amount of the assessments, costs,
and charges due ; and the amount of the assessments, costs, and charges
must be credited as paid in full on the books of the corporation, and
entry of the transfer of the stock of the coqx)ration must be made on
the books thereof. While the stock remains the oroperty of the cor-
poration it is not assessable, nor must any dividends be declared thereon ;
but all assessments and dividends must be apportioned upon the stock
held by the stockholders of the corporation.

§ 436. Stock held by corporation. J All purchases of its own stock
made by any corporation vest the legal title to the same in the cor-
poration; and the stock so purchased is held subject to the control of
the stockholders, who may make such disposition of the same as they
deem fit, in accordance with the by-laws of the corporation or vote of
a majority of all the remaining shares. Whenever any portion of the
capital stock of a corporation is held by the corporation by purchase, a
majoritv of the remaining shares is a majority of the stock for all i)ur-
poses 01 election or voting on any question at a stockholders^ meeting.

§ 437. Extended notice.] The dates fixed in any notice of assess-
ment or notice of delinquent sale, published according to the provis-
ions hereof, may be extended from time to time, for not more than
thirty days, by order of the directors, entered on the records of the
corporation; but no order extending the time for the performance of
any act specified in any notice is efectual, unless notice of such exten-
sion, or postponement, is appended to and published with the notice to
which the order relates.

§ 438. Irregularities.] No assessment is invalidated by a failure
to make publication of the notices hereinbefore provided for, nor by
the non-performance of any act required, in order to enforce the pay-
ment of the same; but in case of any substantial error, or omission, in
the course of proceedings for collection, all previous proceedings,
except the levying of the assessment, are void, and publication must
be begun anew. '

§ 439. Bedemption — limitation.] No action must be sustained to
recover stock sold for delinquent assessments, upon the ground of irreg-

Ciml Code. Personal Propkrty. 267

iilaiity in the assessment, irregularity or defect of the notice of sale,
or defect or irregularity in the sale, unless the party seeking to main-
tain such action" first pays, or tenders, to the corporation, or the party
holding the stock sold, the sum for which the same was sold, together
with all delinquent assessments which may have been paid thereon,
and interest on such sums from the time they were paid, and no such
action must be sustained, unless the same is commenced by the filing
of a complaint, and the issuing of a summons thereon within six
months after such sale was made.

g 440. Proof of notice- sale.] The publication of notice required
by this article, may be proved by the affidavit of the printer, foreman,
or principal clerk of the newspaper in which the same was published;
and the affidavit of the secretary, or auctioneer, is prima facie evidence
of the time and place of sale, of the quantity and particular descrip-
tion of the stock sold, and to whom, and for what price, and of the fact
of the purchase money beine paid. The affidavits must be filed in the
office 01 the corporation, and copies of the same, certified by the secre-
tary thereof, are prima facie evidence of the facts therein stated. Cer-
tificates signed by the secretary, and under the seal of the corporation,
are prima facie evidence of the contents thereof.

§ 441. Action — option.] On the day specified for declaring the stock
delinquent, or at any time subsequent thereto, and before the sale of
the delinquent stock, the board oi directors may elect to waive further
proceedings under this article for the collection of delinquent assess-
ments, or any part or portion thereof, and may elect to proceed by
action to recover the amount of the assessment, and the costs and
expenses already incurred, or any part or portion thereof.

Article VII. — Judgment Against and Sale of Corporate Franchises.

•

§ 442. Franchise salable- no exemption.] For the satisfaction of

any judgment against a corporation authorized to receive tolls, its

• franchise, and all the rights and privileges thereof, may be levied upon

and sold under execution, in the same manner, and with the same effect

as any other property, but without any exemption.

§ 443. Certificate of sale.] The purchaser at the sale must receive
a certificate of purchase of the franchise, and be immediately let into
the possession of all property necessary for the exercise of the powers
and the receipt of the proceeds thereof, and must thereafter conduct
the business of such corporation, with all its powers and privileges, and
subject to all its liabilities, until the redemption of the same as here-
inafter provided.

§ 444. Purchaser's rights.] The purchaser or his assignee is
entitled to recover any penalties imposed by law, and recoverable by
the corporation for an injury to the franchise or property thereof, or
for any damages or other cause, occurring during the time he holds
the same, and may use the name of the corporation for the purpose of
any action necessary to recover the same. A recovery for damages or
anv Denalties thus had is a bar to any subsequent action by or on
benalf of the corporation for the same.

§ 445. Other powers remain.] The corporation whose franchise is
sold, as in this article provided, m all other respects retains the same

S68 Personal Property. Civil Code.

powers, is bound to the discharge of the same duties, and is liable to
the ss^me penalties and forfeitures, as before such sale.

§ 446. Kedemption.] The corporation may, at any time within one
year after such sale, redeem the franchise by paying or tendering to
the purchaser thereof the sum paid therefor, with twelve per cent,
interest thereon, but without any allowance for the toll which he may
in the meantime have received; and upon such payment or tender the
' franchise and all the rights and privileges thereof revert and belong to
the corporation, as if no such sale had been made.

§ 447. Where sold.] The sale of any franchise under execution
must be made in the county in which the corporation has its principal
place of business, or in which the projperty, or some portion thereof,
upon which the taxes are paid, is situated.

Article VIIL— Examination of Corporations, &c.

§ 448. Power of legislature.] The legislative assembly, or either
branch thereof, may examine into the affairs and condition of any
corporation in this territory at all times; and for that purpose any
committee appointed by the said assembly, or either branch thereof,
may administer all necessary oaths to the directors, oflBcers, and stock-
holders of such corporation, and may examine them on oath in relation
to the affairs and condition thereof; and may examine the safes, books,
papers, and documents belonging to such corporation, or pertaining to
its affairs and condition, and compelthe production of all keys, books,
papei^, and documents by summary process, to be issued on applica-
tion to any district court or any judge thereof, under such rules and
regulations as the court may prescribe.

§ 449. Power reserved.] The legislative assembly may at any time
amisnd this chapter, or any article, or section thereof.

Article IX. — Railroad Corporations.

i^.-Vt^.^ \]^ § 450. General powers classed.] Every railroad corporation has

power and is authorized :

1.' To enter upon any land for the purpose of examining and survey-
ing its railroad line, and may take, hold, and appropriate so much real
property as may be necessai-y for the location, construction and con-
venient use of its road, including all necessary grounds for statioHB,
buildings, workshops, depots, machine shops, switches, side tracks,
turn tables, and water stations; all materials for the construction and
repair of said road and its appurtenances; and a right of way over
adjacent lands, sufficient to enable such corporation to construct and
repair its road, and a right to conduct water by aqueducts, and the
right of making proper drains: Provided, That the lands so held, taken
and appropriated, otherwise than by the consent of the owner, shall
not exceed two hundred feet in width, except for wood and water
stations, and depot grounds, unless where greater width is necessary
for excavation, embankments, or depositing waste earth; And provid^
fu)ihe}\ That no appropriation of jjrivate property, for the use of any
corporation provided for in this article, shall be made, until full com-
pensation therefor be first made or sec\ired to the owners thereof.

Civil Code. Personal Peoperty. 269

2. To' lay out, locate, construct, furnish, maintain, operate, and
enjoy a railroad with single . or double tracks, with such side tracks,
turn outs, oflBces, and depots as shall be necessary, between the places
of the termini of the said road, commencing at or within, and extend-
ing to or into any town, city, or village, named as the places, Of the
termini of said road, and construct branches from the main line to
other towns or places within the limits of this territory.

3. To carry persons and property on its railroad, and receive tolls or
compensation* therefor.

§ 451. Purchase or take realty.] Any railroad corporation may
purchase and use real property for a price to be agreed upon with the
owners thereof; or the damages to be paid by such corporation for any
real property taken as aforesaid, when not agreed upon, shall be ascer-
tained and determined by commissioners to be appomted by the judge
of the district court of the county or judicial subdivision, wherein
such real estate is situated, in conformity with the provisions of this
article.

§ 452. Taking when owner refuses — procedure.] If the owner of
any real property over which said railroad corporation may desire to
locate its road, shall refuse to grant the right of way through and over
his premises, the district judge of the county or subdivision in which
said!^ real property may be situated, as provided in this article, shall,
upon the application or petition of either party, and after ten days'
notice to the opposite partj^, either by personal service or by leaving a
copy thereof at nis usual place of resiclence, or in case of his non-resi-
dence in the territory, by such publication in a newspai^er as the
judge may order, direct the sherin of said county to summon three
disinterested freeholders of said county or subdivision (or if there be
none such, then of the (temtory) as commissioners, who shall be
selected by said judge, and who must not be interested in a like question.
The commissioners shall be duly sworn to perform their duties impar-
tially and justly; and they shall inspect said reS^^l property and con-
sider the injury vrhich such owner may sustain by reason of such rail-
road; and they shall assess the damages which said owner will sustain
by such appropriation of his land; and they* shall forthwith make
report thereof in writing to the clerk of the said court, setting fortli the
quantity, boundaries, and value of the property taken, or amount of
injury done to the property which they assess to the owner; which
report must be filed and recorded by the clerk, and a certified copy
thereof may be transmitted to the register of deeds of the county or
subdivision where the land lies, to be oy him filed and recorded (with-
out further acknowledgment or proof) in the same manner and with like
force and effect as is provided for the record of deeds. x\nd if said
corporation shall, at any time before it enters upon said real property
for the purpose of constructing said road, pay to said clerk for the UvSe
of said owner the sum so assessed and reported to him as afore-
said, it shall thereby be authorized to construct and maintain its road
over and across said premises; Provided, That, if the cornoration shall
need or require, for the purpose of constructing said railroad, to take
and occupy any real property in any unorganized county or in other
unorganized country where there is no district court established, then
the judge of the district court of the nearest organized county or subdi-

270 Personal Property. Civil Cod^.

vision (wherein such court is established) upon the line of said road, shall
appoint commissioners to assess said damages; and he and they shall
perform all other duties required of district judges and commissioners
by the terms of this article, and either party shall have the right to
appeal as in other cases herein ^^rovided; And provided furthe7% That the
rei)ort of the commissioners may be reviewed by the district court, on
written exceptions filed by either party, in the clerk's oflSce, within
sixty days after the filing of such report; and the court shall take such
order therein as right and justice may require, either by confirming,
modifying, or rejecting the same, or by ordering a new appraisement,
on good cause shown: And provided further^ That either party may
appeal from the decision of the district court to the supreme court,
and the money so deposited shall remain in the hands of the clerk
as aforesaid, until a final decision be had, and subject thereto. But
such review or appeal shall not delay the prosecution of the work on
said railroad over the premises in question, if such corporation shall
first have paid or deposited with said clerk the amount so assessed by
said commissioners; and in no case shall said corporation be liable for
the costs on such review or appeal, unless the owner of such real prop-
erty shall be adjudged entitled, upon either review or appeal, to a
greater amount of damages than was awarded by said commissioners.
The corporation shall, in all cases, pay the costs and expenses of the
first assessment. And in case of review or appeal, the final decision
may be transmitted by the clerk of the proper court, duly certified,
to the proper register of deeds, to be by him filed and recorded as
hereinbefore provided for the recording of the report, and with like
effect. ^J>1^^^\

§ 453. Commissioners act in all oases -vacancies.] Freeholders
80 appointed shall be the commissioners to assess all the damages to
the owners of real property in said county or subdivision: and said
corporation may, at any time after their appointment, upon the refusal
of any owner, or guardian of any owner, of lands in said county or
subdivision to grant the right of way as aforesaid, by giving said
owner or guardian ten^days* notice thereof in the manner prescribed
in the preceding section, have the damages assessed in the manner
hereinbefore prescribed. In case of the death, absence, or refusal, or
neglect of any of said freeholdei*s to act as commissionei*s as aforesaid,
the sheriflf shall, upon the selection of the district judge, summon
other freeholders to complete the panel, and said commissioners shall
receive three dollars per day, each, for their services, and the same
shall be taxed in the bill of costs.

§454. Guardians MARRIED women.] Whenever any railroad cor-
poration shall take any real ]Droperty as aforesaid, of any minor, any
person insane or ortherwise incompetent, or of any man-ied woman
whose husband is under guardiansnip, the guardian of such minor,
insane or incompetent person, or such married woman with the
guardian of her husband, may agree and settle with said corporation
for all damages or claims by reason of the taking of such real property,
and may give valid releases and discharges therefor upon the approval
thereof by the judge of the probate court.

§ 455. Unknown owner.] If upon the location of said railroad, it shall
be found to run through the real property of any non-resident owner

• ■ .• • •

CiV?7 Coa^* Personal Property. 271

who is unknown to the corporation, or who has not been by it informed
thereof, and has neither granted nor refused to grant the right of way
through and over his said premises, the said corporation may give
four weeks' notice to such owner, if known, and if not known, by a
description of such real property by publicatiop four consecutive
weeks in some newspaper published in the countj' or subdivision w^here
such real property may lie, if there be anj% and if not, in one nearest
thereto on the line of their said road, that said railroad has been
located through and over his lands; and if said owner do not, within
thirty days thereafter, apply to the district judge to have the damages
assessed in the mode prescribed in this article, said corporation may
proceed to have the damages assessed, as hereinbefore provided, sub-
ject to the same right of review and appeal, as in case of resident
owners; and upon payment of damages assessed to the clerk of the
district court, the corporation shall acquire all the rights and privil-
eges mentioned in this article.

§ 456. Claimants on public lands.] Any raih-oad corporation is
authorized to paSvS over, occupy, and enjoy all the public lands, to the
extent and in the manner prescribed by the act of congress, approved
March 3, 1875; Provided, That the damages accruing to any occupant
or possessory claimant or other person who may reside on or have
improvements upon said public land, shall be determined and paid by
saia railroad corporation as provided in this article for owners of
private lands.

§ 457. Highways, canals, &c.] Any railroad corporation may locate,
construct and operate its railroad across, over, or under any road, high-
w^ay, railroad, canal, stream, or water course, when it may be necessary
in the construction of the same; and in such cases said corporation
shall so construct its railroad crossings as not unnecessarily to impede
the travel, transportation, or navigation upon the road, highway, rail-
road, canal, stream, or water-course so crossed. Said corporation shall
have the right to change the channel of any stream or water (X)urse
from its present location or bed, whenever it may be necessary in the
location, construction, or use of its said road; Provided, Such change
do not alter its general course, or materially impair its former use-
fulness.

§ 458, Change of line or grade.] Whenever any railroad corpora-
tion shall find it necessary, for the purpose of avoiding annoyance to
public travel, or dangerous or difficult cui*ves or grades, or unsafe or
unsubstantial grounds or foundations, or for other reasonable causes,
to change the grade or location of any portion of its road, such rail-
road coiporation shall be and is hereby authorized to make such
changes of grade ^nd location, not departing from its general route.
And for the purpose of making any such change in the location and
grades of any such roads as aforesaid, such corporation shall have all
the rights, powers, and privileges to enter upon and appropriate such
real property, and make surveys necessary to effect such changes and
grades, upon the same terms, and subject to the same obligations,
rules, and regulations, as are prescribed by law; and shall also be
liable in damages, when any may have been caused by such change to
the owner of real projDerty upon which such road was heretofore con-
structed, to be ascertainea and paid, or deposited as herein provided ;

272 Personal Property. Civil Code.

m

but no damages shall be allowed unless claimed within ninety days
after actual notice in writing of such intended chalnge shall' be given
to such owner residing on the premises, or, if non-resident, notice by
such publication in some newspaper in general circulation, k^ th6 dis-
trict judge may order.

§ 459. Public grounds — street8.1 If it shall be necessary, in the
location of any part of any railroaa, to occupy any road, street, alley,
or public way or ground of any kind, or any part thereof, it shall be
competent for the municipal or other corporation, or public officer, or
public authorities, owning or having charge thereof, and the railroad
corporation, to agree upon the manner and upon the terms and con-
ditions upon which the same may be used or occupied; and if said
parties shall be unable to agree thereon, and it shall be necessary, in
the judgment of the directors of such railroad corporation, to use or
occupy such road, street, alley, or other public way or ground, such
corporation may appropriate so much of the same as may oe necessary
for the purposes of such road, in the same manner and upon the same
terms as is pirovided in this article for the iappropriation of the prop-
erty of individuals. ^

§ 460. Railroad junctions — crossings.] Every railroad corporation
shall have power to cross, intersect, join, and unite its railroad with
any other railroad before constructed at any point on its route and
upon the grounds of such other railroad corporation, with the necessary
turnouts, sidings, and switches, and other conveniences in furtherance
of the objects of its connection. And every corporation whose rail-
road is or shall hereafter be intersected by any new railroad, shall
unite with the owners of such new railroad in forming such intersec-
tion and connections, and grant the facilities aforesaid; and if the two
corporations cannot agree upon the amount of compensation to be
made therefor, or the points and manner of such crossings and con-
nections, the same shall be ascertained and determined bv commis-
sioners, to be selected as provided in this article in respect to taking
of lands.

§ 461. Union of lines.] Railroad corporations shall have power to
intersect, join and unite their respective railroads, constructea or to be
constructed in this territory, or m adjoining states and terr^itories, at
such point on the boundary line of each, or at such other point as may
be mutually agreed upon by said corporations. And such railroads
are authorized to merge and consolidate the stock of th6 respective
corporations, making one joint stock corporation of the railroads thus
connected, upon such terms as may be agreed upon in accordance with
the laws of the adjoining state, or territory, with whose road or ro^ds
connections are thus formed; Provided, That the consent thereto of
three-fourths of all the stockholders, in amount, in any road whose
stock is proposed to be consolidated, shall first be obtained.

§ 462. Extension beyond territory.] Every railroad coi'poration
is empowered to extend its road into, or through, anv other state or
territory, under such regulations as may be prescribed by the laws of
such state or territory through which said road may be extended: and
the rights and privileges over said extension, in the construction and
use of said railroad for the benefit of said corporation, and in control-

Civil Code. Pebsonal Property. 273

ling and applying the assets of said corporation, shall be the same as
if its railroad bad been constructed wholly within this territory.

§ 463. Mutual contracts.] Every railroad corporation which may
have constructed or commenced the construction of its road, so as to
meet and connect with any other railroad in an adjoining state or ter-
ritory, at the boundary line of this territory, shall have the power to
make such contracts and agreements with any such road constructed in
an adjoining state or territory, for the transportation of freight and pas-
sengers, or for the use of its said road, as to the board of directors may
seem proper.

§ 4(V4. MoBTOAQE BONDS— LIMITATION.] Evcry railroad corporation
shall have power to mortgage or execute deeds of trust of tne whole
or any part of its property and franchises, including any lands or other
property granted to said corporation by the United States, to secure
money borrowed by it for the construction and equipment of its road,
and may issue its corporate bonds, in sums not less than five hundred
dollars — secured by said mortgages or deeds of trust— payable to bearer
or otherwise; and if payable to bearer, negotiable by delivery, bearing
interest at a rate not to exceed ten per cent, per annum, and convert-
ible into stocks^ and may sell them at such rates or prices as it may
deem proper; and if said bonds should be sold below their nominal or
par value, they shall be valid and'' binding upon the corporation, and
no plea of usury shall be put in by or allowed in behalf of said corpo-
ration in any action or proceedings upon the same; the principal and
interest upon said bonds, or either of them, may be made payable
within or without this territory.

§ 465. Lien — sale.] Such corporation shall have power to borrow
money on the credit of the corporation and may execute bonds or
promissory notes therefor, and to secure the payment thereof, may
pledge the property and income on such corporation. Any mortgage
or deed of trust made upon the lands, road, or other property of rail-
road corporation, shall bind and be a valid lien upon all the property
mentioned in such deed or mortgage, including rolling stock ; and the
purchaser under foreclosure of such mortgage or trust deed shall have
and enjoy all the rights of a purchaser on execution sale; Provided,
That nothing contained in this article shall be so construed as in any
manner to interfere with, change, or modify the rights of this ter^tory
or the United States, to any lands granted by congress to this territory,
or to said corporations, or to transter any riffht in said lands, otherwise
than as subject to all the conditions imposed by the grant made by the
United States or this territory.

§ 466. Cover future assets.] Said mortgages or deeds of trust
may by their terms include and cover not only the property of the
corporations making them at the time of their date, but property, both
real and personal, which may thereafter be acquired by tnera, together
with all the material and property necessary for the use and operation
of said roads, and shall be as valid and effectual as if the property
were in possession at the time of the execution thereof.

§ 467. Record — effect of.] Said mortgages or deeds of trust shall
be recorded in the oflSoe of the register of deeds of each organized
county through which said road mortgaged or deeded may run in this
territory, or wherever it may hold lands included in said mortgages or

18

274 PBBSONAii pROPBBTY. CivU Codc,

deeds of trust, and shall be a notice to all the world of the rights of
all parties under the same ; and for this purpose, and to secure the rights
of mortgagees or parties interested under deeds of trust so executed
and recorded, the rolling stock, personal property, and material
necessary for operating the road of said corporation, belonging to said
road and appertaining thereto, shall be deemed a part of tne road, and
said mortgages and deeds so recorded shall have tne same effect, both
as to notice and otherwise, as to the real estate covered by them.

§ 468. Consolidation — method of.] Whenever the lines of railroad
of any railroad corporations in this territory, or any portion of such
lines have been or may be constructed, so as to admit the passage of
burden or passenger cars over two or more of such roads continuously,
without break of gauge or interruption, such corporations are hereby
authorized to consolidate themselves into a single corporation in the
following manner: The directors of the said two or more corporations
may enter into an agreement, under the corporate seal • of each, for
the consolidation of the said two or more corporations, prescribing the
terms and conditions thereof; the mode of carrying the same into
effect; the name of the new corporation; the number of the directors
thereof, which shall not be less than seven; the time and place of
holding the first election of directors; the number of shares of capital
stock in the new corporation; the amount of each share; the manner
of converting the shares of capital stock in each of said two or more
corporations, into shares in such new corporation; the manner
of compensating stockholders in each of said two or more corporations,
who reiuse to convert their stock into the stock of such new corpora-
tion, with such other details as they shall deem necessary to perfect
such consolidation of said corporations, together with such other
statements as may be required in the premises, by sections three
hundred and ninety -two and three hundred and ninety-three of this
code; and when such corporations shall have complied with all the other
requisites for the creation of corporations prescribed in article one of
this chapter, and other provisions of law, then such new or consolidated
corporation shall retain and possess all the powers, rights, and franchises
ofiginally conferred upon such said two or more corporations,, and
shall be subject to all the restrictions, and perform all the duties
imposed by the provisions of this chapter; Provided^ That all stock-
holders in either of such corporations who shall refuse to convert
their stock into the stock of such new corporation, shall be paid
the market value of said stock at the date of such consolidation.

§ 469. Stockholders' consent required.] Such agreement of the
directors shall not be deemed to be the agreement of the said two or
more corporations until after it shall have been submitted to the stock-
holders of each of the said • corporations separately, at a meeting
thereof, to be called upon a notice of at least ninety days, specifying
the time and place of such meeting, and the object thereof to be
addressed to each of such stockholders, when the place of residence is
known, and deposited in the post office, and published at least for six
successive weeks, in one newspaper in one of the cities or towns in
which each of said corporations has its principal office of business; and
has been sanctioned by such stockholders by the vote of at least two-
thirds in the amount of the stock represented at such meeting, voting

Civil Code. Personal Propbrtt. 275

by ballot in regard to such agreement, either in person or by proxy,
each share of capital stock being entitled to one vote. And when
such agreement of the directors has been so sanctioned by each of the
meetings of the stockholders, separately, after being submitted to such
meetings in the manner above mentioned, then such agreement of the
directors shall be deemed to be the agreement of the said two or more
corporations*

§ 470. Filing agrbembnt.] Upon making the agreement and the
statements mentioned in the last two sections, in the manner required
therein, and filing the same as required by section three hundred and
eighty-nine, the said two or more corporations, mentioned or referred
to in the last two preceding sections, shall be merged in the new cor-
poration provided for in such agreement, to be known by the corporate
name therein mentioned; and the details of such agreement shall be
carried into effect as provided therein.

§ 471. Successors to property, ac.\ Upon the election of the first
board of directors, of the corporation created by the agreement
in the preceding section mentioned, and by the provisions of this
article, all and singular the rights and franchises of each and all of
said two or more corporations, parties to such agreement, all and
singular the rights and interests in and to every species of property,
real,, personal, and mixed, and things in action, shall be deemed to be
transferred to, and vested in such new corporation, without any other
deed or transfer. And such new corporation shall hold and enjoy the
same, together with the right of way and alt other rights of property,
in the same manner and to the same extent as if the said two or more
corporations, parties of agreement, should have continued to retain the
title and transact the business of such corporations. And the titles,
and the real estate acquired by either of said two or more corporations,
shall not be deemed to revert or be impaired by means of anything in
this article contained; Provided, That all rights of creditors, and all
liens upon the property of either of said corporations, shall be, and
hereby are preserved unimpaired; and the respective corporations shall
continue to exist as far as may be necessary to enforce the same; And
provided further, That all debts, liabilities, and duties of either corpo-
ration shall henceforth attach to such new corporation and be enforced
to the same extent and in the same manner as if such debts, liabilities
and duties had been originally incurred by it.

§ 472. Obligations.] When any two or more railroad corporations
shall have been consolidated, as contemplated by the provisions of this
article, such corporations so consolidated, shall keep each and every
railroad line that may come into its possession by such consolidation,
in good running order, with suflBcient rolling stock to transport the
freight and passengers. They shall not discriminate against business
of either or any of said railroad lines, either directly or indirectly, by
the detention of freight or passengers.

% 478. Aid to other corporation— reports.] Any railroad corpora-
tion may, at any time by means of subscription to the capital stock of
any other corporation, or otherwise, aid such other corporation in the
construction of its railroad, for the purpose of forming a connection of
said last mentioned road with the road owned by the corporation fur-
nishing such aid; or any railroad corporation existing in pursuance of

276 Personal Property. Civit Code.

•

law, may lease or purchase any part or all of any railroad constructed
by any other corporation, if said corporation's lines of said road are
continuous or connected as aforesaid, upon such terms and conditions
as may be agreed on between said corporations respectively; or any
two or more railroad corporations whose lines are so connected, may
enter into an agreement for their common benefit consistent with, and
calculated to promote the objects for which they were created; Pro-
vided. That no such aid shall be furnished, nor any purchase, lease, or
arrangement perfected, until a meeting of the stockholders of each of
said corporations shall have been called by the directors thereof, at
such time and place, and in manner as they shall designate, and the
holders of at least two-thirds of the stock of such corporation repre-
sented at such meeting, either in person, or by proxy, and voting
thereat, shall have assented thereto. Every railroad corporation shall
annually, on or before the first day of February, make upon the oath
of its president, secretary, or treasurer, a full report of the condition
of its affairs for the previous year, ending the thirty-first day of
December, to the auditor of the territory, embracing and showing:

1. The capital stock, and the amount thereof actually paid in.

2. The amount and nature of its indebtedness, and the amounts due
the corporation.

8. ThiB amount expended for the purchase of lands, for the con-
struction of the road, for buildings, and for engines and cars respect-
ively.

4. The amounts received for the transportation of passengers, prop-
erty, mails, .and express matter, and from other sources.

5. The amount of freight, specifjnng the quantity in tons.

6. The amount paid for repairs of engines, cars, buildings, and other
expenses, in gross, showing the current expenses of running said road.

7. The number and amount of dividends, and when paid; and the
amount of profit.

A copy of such report must also, at the same time and by the cor-
poration, be published in a newspaper printed in the county in which the
main office of the corporation is situated, or at the capital of the ter-
ritory; and the territorial auditor must incorporate such report in his
biennial report to the governor.

§ 474. Running rules.] Every such railroad corporation shall start
and run its cars, for the transportation of persons or property, at regu-
lar times, to be fixed by puolic notice, and shall lumish sufficient
accommodation for the transportation of all such passengers and prop-
erty as shall, within a reasonable time previous thereto, offer, or be
offered, for transportation at the place or starting, or at the junction
of other railroads, and at siding and stopping places established for
receiving and discharging way passengers and freight, and shall take,
transport, and discharge passengers and property at, from, and to such
places, on the due payment of tolls, freight, or fare therefor.

§ 475. Violation — penalty.] In case of the refusal by such cor-
poration or its agents to take or transport any passenger or property
as provided in the preceding section; or in case of the neglect or
refusal of such corporation or its agents to discharge or deliver pas-
sengers or property at the regular appointed place, under the laws
which regulate common carriers, such corporation shall pay to the

Civil Code. Pi^naQNAL Pbopbety. 277

party s^grieved all damages which shall be sustained thereby, with
costs of action.

§ 476. PsRSONAL iNJu&isa] In case any passenger on any railroad
shall be injured while on the platfonn of a car while in motion, or in any
haggage, wood, or freight car, in violation of the printed regulations of
the corporation, posted up in a conspicuous place inside of its pas-
senger cars then m the train, such corporation shall not be liable for
the injury; Provided j It had furnished room inside its passenger cars
sufficient for the accommodation of its passengers.

§ 477. Fare imposes duty.] When fare is taken by any railroad
corporation for transporting passengers on any mixed train of pas-
senger and freight cars, or on any baggage, wood, gravel, or freight
car, the same care must be taken and the same responsibility and
duties are assumed by the corporation as for passengers on passenger
cars.

§ 478. CHAKeiNG HIGHWAY.] Any railroad corporation may raise
or lower any turnpike, plank road, or other way, for thfe purpose of
having its railroaa pass over or under the same; and in such cases said
corporation shall put such turnpike, plank road, or other way, as soon
as may be, in goou repair.

§ 479. Temporary ways.] Every railroad corporation, while employed
in raising or lowering any turnpike, or other way, or in making any
other alterations, by means of which the said way may be obstructed,
shall provide and keep in good order, suitable temporary ways to
enable travelers to avoid or pass such obstructions.

§ 480. Bridge repairs.] Every railroad corporation shall maintain
and keep in good repair all bridges, with their abutments, which
such corporation shall construct, for the purpose of enabling its road
to pass over or under any turnpike road, canal, water-course, or other
way.

§ 481. Signs at crossings.] Every railroad corporation operating
a line of road within this territory, must erect suitable signs of cau-
tion at each crossing of its road with a public highway, which sign
shall be painted with black roman or block letters, on white back-
ground, ''railroad crossing, look out for the cars;" said letters to be
at least eight inches in len^h and proportionately broad ; said signs
shall be placed at the top oi posts at least fifteen feet high.

§ 482. NbgIaEct of same.] In case any railroad corporation shall
refuse or neglect, for the space of thirty days after notice given by
the board of county commissioners, to comply. with the provisions of
the preceding section, it shall become the duty of the county com-
missioners of each, county through which any such railroad shall be
in operation, to erect such si^ns, and the company shall be liable for
all expenses so incurred by said commissioners.

§ 483. Bell and whistle.] A bell at least thirty pounds' weight or
a steam whistle shall be placed on each locomotive engine, and shall
be rung or whistled at the distiince of at least eighty rods from the

Elaoe where the said railrocKl shall (^ross any other road or street, and
e kept ringing or whistling until it shall have crossed said road or
street^ under a penalty of fifty dollars for every neglect, to be paid by
the corporation owning the railroad, one-half thereof to so to the
informer, and the other lialf to this teiTitory, and also to be liable for

278 PsBsoKAL Peopbety. Civil -Code.

all damages which shall be sustained by any person by reason of such
neglect.

§ 484. Causeway.] When any person owns land on both sides of
any railroad, the corporation owning such railroad shall, when required
so to do, make and keep in good repair one causeway or other safe
and adequate means of crossing the same.

§ 485. Fare refused.] If any passenger shall refuse to pay his
fare, it shall be lawful for the conductor of the train and the servants
of the corporation to put him and his baggage out of the cars, in the
manner prescribed in section one thousand two hundred and seventy
two. (See also sections 1264 to 1274 of this code).

Article X.— Of Waoon Roads.

§486. Lajd out — how.] Where a corporation is fSrmed for the
construction and maintenance of a wagon road, the road must be laid
out as follows: Three commissioners must act in conjunction with
the surveyor of the corporation, two to be appointed by the board of
commissioners of the county through which the road is to run, and
one by the corporation, who must lay out the proposed road and
report their proceedings, together with the map of the road, to the
board of commissioners of the county as provided in the succeeding
section.

§ 487. Map filed — record of approval— effect.] When the route
is surveyed a map thereof must be submitted to and filed with the
board of commissioners of each county through or into which the
road runs, giving its general course, and the principal points to or by
which it runs, and its width, which must in no case exceed one hundred
feet, and the board of county commissioners must either approve or
reject the survey. If approved, it must be entered of record on the
journal of the board, and such approval authorizes the use of all public
lands and highways over which " the survey runs ; but the board of
county commissioners must require the corporation, at its ovri
expense, and the corporation must so change and open the highways
so taken and used, as to make the same as good as they were before
the appropriation thereof; and must so construct all crossings of pub-
lic highways over and by its road and its toll gates, as not to hinder or
obstruct the use of the same.

§ 488. Bridges and ferries — tolls.] All wagon road corporations
may bridge or keep ferries on streams on the line of their road, and
must do all things necessary to keep the same in repair. They may
take such tolls only on their roads, ferries, or bridges, as are fixed by
the board of commissioners of the proper county through which the
road passes, or in which the ferry or bridge is situate, subject, however,
to the limitation of rates for ferriage prescribed in the general law
upon ferries; but in no case must the tolls be more than sufiicient to
pay fifteen per cent, per annum on the cost of construction, after pay-
mg for repairs and other expenses for attending to the roads, bridges
and ferries. If toUs,^ other than as herein provided, are charged or
demanded, the corporation forfeits its franchise, and must pay to the
party so charged one hundred dollars as liquidated damages.

Civil Code, PbbsonaL Peopebty. 279

§ 489. PoBLic HIGHWAYS USBD.] When any highway or public road
is taken and used by any wagon road corporation as a part of its road,
the corporation must not place a toll gate on or take tolls for the use
of such highway or public road by teamsters, travelers, drovers, or
any one transporting property over the same.

§ 490. Toll bates posted.] The corporation must affix and keep
up, at or over each gate, or in some conspicuous place, so as to be
conveniently read, a printed list of the rates of toll levied and
demanded.

§ 491. Tolls rbquibed.] Each toll gatherer may prevent from
passing through his gate persons leading or driving animals or vehicles
subject to toll, until they shall have paid, respectively, the tolls author-
ized to be collected.

§ 492. Toll gatheber's duty — penalty.] Every toll gatherer who,
at any gate, unreasonably hinders, or delays, any traveler or passenger
liable to the payment of toll, or demands, or receives, from any person
more than he is authorized to collect, for each offense forfeits the sum
of twenty-five dollars to the person aggrieved.

§ 493. Passing gate.] Every person who, to avoid the payment of
the legal toll, with his team, venicle or horse, turns out of a wagon,
turnpike, or plank road, or passes any gate thereon on the ground
adjacent thereto, and again enters upon such road, for each offense
forfeits the sum of five dollars to the corporation injured.

§ 494, Injuring road.] Every person who:

1. Willfully breaks, cuts down, defaces, or injures any mile-stone or
post, on any wagon, turnpike, or plank road ; or,

2. Willfully breaks or throws down any gate on such road ; or,

3. Digs up or injures any part of such road, or anything thereunto
belonging; or,

4. Forcibly or fraudulently passes any gate thereon, without having
paid the legal toll;

For each offense forfeits to the corporation injured the sum of twenty-
five dollars, in addition to the damages resulting from his wrongful
act.

§ 495. Revenue applied.] The entire revenue from the road shall
be appropriated:

1. To repayment to the corporation of the costs of its construction,
together with the incidental expenses incurred in collecting tolls and
keeping the road in repair; and,

2. To the payment of the dividend among its stockholders, as pro-
vided in section four hundred and eighty-eight. When the repayment
of the cost of construction is completed, the tolls must be so reduced
as to raise no more than an amount sufficient to pay a dividend of
twelve per cent, per annum, and incidental expenses, and to keep the
road in good repair.

§ 496. Mortgage — conditions.] The corporation may mortgage or
hypothecate its road and other property for funds with which to con-
s^uct or repair their road, but no mortgage or hynothecation is valid
or binding unless at least twenty-five per cent, of the capital stock sub-
scribed has been paid in and invested in the construction of the road
and appurtenances, and then only after an affirmative vote of
two-thirds of the capital stock subscribed.

280 Pbbbonal Pbopkety. Civil Code.

§ 497. Natural person like corporation.] When a wagon, turn-
pike, or plank road is constructed, owned, or operated by any natural
person, tnis article is applicable to such person in like manner as it is
applicable to corporations.

Article XI.— Insurance Corporations.

§ 498. Statement required.] Every insurance corporation incor-
porated under the laws of this territory, shall file with the secretary
of the territory, within forty days after its incorporation, a full and
specific statement of the amount of cash paid in upon its' stock; the
amount of stock not paid for in cash; the amount secured by mort-
gages or pledges of real property; the names and residences of the
stockholders in said corporation, with the amount of stock owned or
held, set opposite the name of each, and if not all paid up in cash, the
amount unsecured and the amount secured, specifying whether by real or
personal security ; also, set opposite the name of each the names of all the
oflBcers and agents of the corporation, wherever residing; the amount
of policies issued by, and outstanding against the corporation at the
date of said reports the amount of premiums received by said corpo-
ration during its existence; the amount of cash on hand; the amount of
bills payable and receivable at the date of said statement; the amount
of real property owned by said corporation, where held and owned,
and in what manner such real property became vested in said corpo-
ration; which report and statement shall be verified by the oath of the
president and secretary of the corporation.

§ 499. Semi-annual report — contents.] Every insurance corpora-
tion created under the laws of this territory, shall file a semi-annual
statement of the aflFairs of said corporation with the auditor of the
territory on the first day of January and July in each year, or within
ten days thereafter, which statement shall be verified by the oath of
the secretary, or other officer of such corporation. Such statement shall
contain :

1. The name and localitity of the corporation.

2. The amount of capital stock of said corporation.

3. The amount of its capital stock paid up.

4. The assests of the corporation, including:

1. The amount of cash on hand.

2. The amount of cash in hands of agents.

3. The real estate unincumbered.

4. The bonds and notes of the corporation, and how they are
secured, with the rates of interest thereon, and whether given
in payment of stock subscription, or for bona fide loans.

5. Debts of the corporation secured by mortgages.

6. Debts otherwise secured.

7. Debts for premiums.

8. All other securities.

5. The amount of liabilities due or not due to banks or other cred-
itors of the corporation.

6. Losses adjusted and due.

7. Losses adjusted and not due.

8. Losses unadjusted.

Civil Code. Pbbsonal Pbopbrty. 281

9. Losses in suspense.

10. All other claims against the corporation.

11. The greatest amount insured by any one risk.
And the auditor shall cause a brief abstract of such statement to be

published in at least one newspaper at the capital of the territory, and
such corporation shall pay for said publication.

§ 500. Penalty for refusal.] A failure to comply with the pro-
visions of the two preceding sections, shall subject the president and
secretary of any corporation, each individually, to the penalty of one
hundred dollars, to be recovered in an action at law m the name of
any citizen of the territory, one^half of the same to the use of the ter-
ritory, and the other moiety to the use of the informer.

§ 501. Ownership of realty limited.] It is declared unlawful for
any insurance corporation in this territory to purchase or hold any
real property, save what shall be necessary for the transaction of its
legitimate business of insurance; and deeds and conveyances to said
corporation for any other purposes, are hereby declared to be void.ck^^^^ "^y^

§ 502. Agent's certificate — contents.] It shall not be lawful for
any agent or agents of any insurance corporation, incorporated by any
other state or territory, directly or indirectly to take risks or transact
any business of insurance in this territory, without first procuring a
certificate from the auditor of the territory, and before obtaining such
certificate, such agent or agents shall furnish the auditor with a state-
ment under the oath of the president or secretary of the corporation
for which he or they may act, which statement shall show:

1. The name and locality of the corporation.

2. The amount of its capital stock.

3. The amount of its capital stock paid up.

4. The assets of the corporation, including:

1. The amount of cash on hand, and m the hands of agents or
other persons.

2. Tne real property unincumbered.

3. The bonds and notes owned by the corporation, and how
they are secured, with the rate of interest thereon.

] 4. The debts of the corporation secured by mortgage.

5. Debts otherwise secured.

6. Debts for premiums.

7. All other securities.

5. The amount of liabilities due or not due to banks or other credit-
ors of the corporation.

6. Losses adjusted and due.

7. Losses adjusted and not due.

8. Losses unadjusted.

9. Losses in snspense, waiting for further proof.

10. All other claims against the corporation.

11. The greatest amount insured by any one risk.

12. The greatest amount allowed by the rules of the corporation to
be insured in any one city, town or village.

13. The greatest amount allowed to be insured in any one block.

14. The act of incorporation of such corporation.
Which statement shall be filed in the office of said auditor, together

with a written instrument under the seal of the corporation,

282 PBBSONAiL PsoPBBTY. Civil Code.

signed by the president and secretary, authorizing such agent to
acknowledge service, consenting • that service of process upon such
agent shall be taken and held to be as valid as if served upon the corpora-
tion, according to the laws of the territory, or any state or territory,
and waving all claims of errors by reason of such service: and no
insurance corporation, or agents of any insurance corporation, incor-
porated by any other state or territory, shall transact any business of
insurance in this territory, unless such corporation is possessed of at
least one hundred thousand dollars of actual capital, invested in
stocks of at least par value, or in bonds or mortgages on real property
worth double the amount for which the same -is mortgaged; and upon
filing the aforesaid statement and instrument with tke auditor of
the territory, and furnishing him with satisfactory evidence of such
instrument as aforesaid, it shall be the duty of said auditor to issue a
certificate thereof, with authority to transact business of insurance, to
the agent or agents applying for the same; and the auditor may
demand and receive two dollars for every such certificate, to be paid
by the corporation.

§ 508. FoRBiaN INSURANCE — SAME.] It ishall be unlawful for any cor-
poration or association, partnership, firm, or individual, or any
member or agent thereof, or for any agent of any corporation incor-
porated by any foreign government other than a state of this Union,
to transact any business of insurance in this territory without pro-
curing a certificate of authority from the auditor of this territory ;
such corporation, association, partnership, firm, or individual, or any
agent thereof, having first filed, under oath, in the office of said auditor,
a statement setting forth the charter or articles of incorporation of
any and every such corporation, and the by-laws, copartnership agree-
ment and articles of association of any and every such unincorpo-
rated company, association, partnership, or firm; and the name and
residence of such individual, and the names and residences of the
members of every such partnership or firm; and the matters required
to be specified by the provisions of this article, and the written
authority therein mentioned, and furnish evidence, to the satisfaction
of the auditor of the territory, that said company has invested in
stocks of some one or more of the states of this Union, or of the
United States, the amount of one hundred thousand doUare, and that
such stocks are held by citizens of the United States, or in bonds -or
mortj^ages of real property situated within the United States fully
securing the amount for which the same is mortgaged, or bonds
of cities of the United States, the aggregate market value of the
investment of the company in which shall not be less than one hun-
dred thousand dollars; and such corporation or unincorporated company,
association, partnership, firm, or individual, or any agent thereof, filine
said statement and furnishing evidence of investment, as aforesaid,
shall be entitled to a certificate of authority for such body or indi-
vidual, in like manner as is provided in this article.

§ 504. Same annually.] The statement and evidences of invest-
ment required by this article, shall be renewed annually in the month
of January of each year. The auditor of the territory, upon being
satisfied that the capital, securities, and investments remam secure,
shall furnish a renewal of certificates as aforesaid; and the company

Ciml Code. Pxbsokal Pkopsbty. 288

or agent obtaining snch certificate, shall file the same, together with
the statement apon which it was obtained or renewed, in the office of
the auditor of the teiritory.

§ 505. AoBNOY DEFINED.] Any person or firm in this territory who
shall receive or receipt for any money, on account of or for any con-
tract of insurance made by him or them, or for anj'^ such insurance
corporation, company, or individual aforesaid, or who shall receive or
receipt for money from other persons to be transmitted to any such
corporation, company, or individual aforesaid, for a policy of insurance
or any renewal thereof, although such policy of insurance may not be
signed by him or ^ them as agent or agents of such corporation or
company, or who shall in any wise, directly or indirectly, make or
cause to be made any contract of insurance, for or on account of such
corporation or company aforesaid, shall be deemed, to all intents and
purposes, an agent or agents of such corporation, company or indi-
vidual, and shall be subject and liable to all the provisions of this
article.

§ 506. Copies evidence.] Copies of all papers required by this
article to be deposited in the office of the auditor, certified under the
hand of such auditor to be true and correct copies of such papers,
shall be received as evidence in all courts and places, in the same man-
ner, and have the same force and eflfect as the original would have, if
produced.

§ 507. Violation — penalty.] Any person violating the provisions
of this article shall, upon conviction thereof in the district court, be
fined in any sum not exceeding one thousand dollars, or imprisoned
in the county jail not more than thirty days, or both, at the discretion
of the court. Violations of the provisions of this article may be
prosecuted either by information filed by the district attorney, or by
indictment of the grand jury.

§ 508. SiNOLs STATEMENT ONLY.] Any iusuraucc corporation
complying with the provisions of this article, and securing the certifi-
cate of the auditor for any of its agents, shall not be required to
ftimish the single statement and evidences required hereby, for more
than one of such agents, which, being filed with the auditor, shall be
deemed a sufficient compliance for its free transaction of business in
this territory.

§•509. Mutual insurance.] Every mutual insurance corporation
incorporated by any state or territory, other than Dakote, upon filing
in the office of the auditor ite articles of incorporation, together with
a written instrument, under seal of said corporation, signed by the
president and secretary thereof, under oath, certifying that said cor-

§ oration is possessed of a capital of at least one hundred thousand
oUars, secured by lien on real property, worth, at cash valuation, at
least five times the amount oi said capital, and not encumbered to
more than one-fourth of said cash valuation, shall be entitled to a
certificate from said auditor, with authority to transact business of
insurance in this territory, and said corporation shall be exempt from
the provisions of this article, with the exception of the publication of
the statement and certificate of the auditor.

§ 510. Filing and publication of certificate.] It shall be the
duty of any agent in either of the foregoing sections mentioned.

284 PiRSONAL Pkofbrty. Civil Code.

before taking any risks or transacting any business of insurance in
this territory, to file in the office of the register of deeds of the
county in which he may desire to establish an agency for any such
corporation, a ♦copy of the statement required to be filed with the
auditor of the territory as aforesaid, together with a certificate of such
auditor, which shall be carefully praserved for public inspection
by said register, and said statement and certificate shall be published
for one week in one daily, or for four weeks in one weekly news-

Eaper printed and published in the county in which such agent
as his office of business as such agent; and if no newspaper is pub-
lished in such county, then such publication shall be made in one
weekly newspaper of this territory of most general circulation in such
county.

Article XII. — Mining and Manufacturing Corporations, &c.

§ 511. LiMiTBD twenty YEARS.] Corporations for mining, manu-
facturing and other industrial pursuits, may be formed as provided in
this chapter; and such corporations have all the rights, and are subject
to all the duties, restrictions and liabilities therein mentioned, so far as
the same apply or relate to such corporations, but the term of existence
of anv such corporation shall uot exceed twenty years.

§ 5i2. Loan to stockholder forbidden.] The purposes for which
every such corporation shall be formed must be distinctly and
definitely specified in the articles of in(X)rporation; and it must not
appropriate its funds to any other purpose, nor must it loan any of its
money to any stockholder therein; and if any such loan or misappro-
priation be made, the officers who shall make it, or who shall assent
thereto, shall be jointly and severally liable, to the extent of such loan or
misappropriation, and interest, for all the debts of the corporation con-
tracted before the repayment of the sura so loaned or misappropriated.

§ 513. Accounts — publicity — statement.] Regular books of
accounts of all the business of such corporations must be kept, which,
with the vouchers, shall be at all reasonable times open for the
inspection of any of the stockholders; and as often as once in each
year a statement of such accounts shall be made, by order of the
directors, and laid before the stockholders.

§ 514. Liability for labor.] The stockholders of any corporation
formed for the purposes mentioned^in this article, shall be jointly and
severally liable, in their individual capacities, for all debts due to
mechanics, workmen, and laborers employed by such corporation,
which said liability may be enforced against any stockholders by an
action at any time after an execution against such corporation shall
be returned not satisfied ; Proviiied, Such action be commenced within
four months; And provided always. That if any stockholder shall be
compelled by any such action to pay the debte of any creditor, or any
part thereof, he shall have the right to call upon all the stockholders
to contribute their part of the sum so paid by him as aforesaid, and
may sue them jointly or severally, or any number of them, and recover
in such action the ratable amount due from the person or persons so
sued.

§ 515. Annual rbport — contents.] Every such corporation shall
annually, within twenty days from the first day of January, make a

Cim? Code. Personal Propbrty. 285

report, which must be published in some newspaper published at or
nearest to the place where the business of said corporation is carried
on, which report must state the capital stock and the amount thereof
actually paid in, the amount and nature of its indebtedness, and the
amounts due the corporation, the number and amount of dividends
and when paid, and the net amount of profits. The said report must
be signed by the president and a majority of the directors, and be
verified by the oath of the president or secretary of the corporation,
and filed m the office of the register of deeds of the county where the
business of the corporation is carried on; and if any such corporation
shall fail so to do, the directors shall be jointly and severally liable
for all the debts of the corporation then existing, and for all that shall
be contracted before such report shall be made.

§ 516. Demand for statement.] Whenever any person or persons
owning twenty per cent, of the capital stock of any corporation formed
for the purposes mentioned in this article shall present a written request
to the treasurer thereof, that they desire a written statement of the
afi^rs of the corporation^ he must make such statement under oath,
embracing a particular account of all its assets and liabilities in detail,
and deliver the same to ^he persons presentinff the written request,
within twenty days after such presentation; and such treasurer shall
also, at the same time, place and keep on file in his office for six
months thereafter, a copy of such statement, which shall at all times
during business hours be exhibited to any stockholder of such corpora-
tion demanding an examination thereof; the treasurer, however, shall
|l not be required to make or deliver such statement in the manner
aforesaid offcener than once in every six months. If such treasurer
neglect or refuse to comply with the provisions of this section, he shall
forfeit and pay to the person or persons presenting such written request
the sum of fifty dollars, and the further sum of ten dollars tor every
twenty-four hours thereafter, until such statement shall be furnished,
to be sued for and recovered in an action.

§ 517. May have oppice elsewhere.] Any corporation formed for
the purposes mentioned in this article may provide in the articles of
incorporation for having a business office without this territory, at
any place within the United States, and to hold any meeting of the
stockholders or directors of the corporation at such office so provided
for; but every such corporation having a business office out of this
territory must have its main office for the transaction of business
within this territory, to be also designated in such articles.

§ 518. Fraud, responsibility.] If any such corporation shall will-
fully violate any of the provisions of this chapter relating or applying
to such corporation, and shall thereby become insolvent, the directors
ordering or assenting to such violation shall, jointly and severally, be
liable in an action founded upon this statute, for all debts contracted
after such violation.

% 519. DiTOH corporation — REQUISITES.] In addition to the matters
required by section three hundred and eighty-six, every corporation
formed for the purpose of constructing a ditch to convey water to any
mines, mills, or lands, to be used for mining, manufacturing, milling,
or for the irrigation of lands, must, in the articles of incorporation, spec-
ify as follows: The stream or streams from which the water is to be

286 Pbrsonae PROPBBTt. Civil Code.

taken ; the point or place on said stream at or near which the water is to
be taken out; the line of said ditch, as near as may be; and the use to
which the said water is intended to be applied.

§ 520. Rights.] Any ditch corporation shall have the right of way
over the line named in the articles, and shall also have the right to
run the water of the stream or streams named in the articles^ through
their ditch; Provided, That the .line proposed shall not interfere with
any other ditch whose rights are prior to those granted under this
article, and acquired by virtue of such articles of incorporation. Nor
shall the water of any stream be diverted from its original channel to
the detriment of any miners, millmen, or others along the line of said
stream, who may have a priority of right; and there shall be at all
times left sufficient water in said stream for the use of miners and
agriculturists along said stream.

§ 521. Duty to furnish water.] Every ditch corporation must
furnish water to the class of persons using water in the way and for
thie purpose for which the articles of incorporation declare the water
obtamea by the corporation is to be used, whether miners, manufac-
turers, millmen, or farmers, whenever they shall have water in their
ditch unsold, and must at all times give the preference to the use of
the water in such ditch to the class of persons so named in the arti-
cles ; and the rates or tolls at which water is to be furnished must be
fixed by the board of county commissioners, as soon as such ditch
shall be completed and prepared to furnish water.

§ 522. Protection from injury.] Every ditch corporation must
keep the banks of its ditch in ^ood condition, so that the water shall
not be allowed to escape from it to the injury of any mining claim,
road, ditch, or other property; and whenever it is necessary to extend or
construct any ditch over, across, or above any lode or mining claim, or
public highway, the corporation shall, if necessary to keep the water
of said ditch out or from any such lode, claim, or highway, flume the
ditch so far as necessary to protect such claim, property, or highway,
from the water of such ditcn. •

§ 523. Flukes — requisites.] In addition to the matters required in
section three hundred and eighty-six, every corporation formed for the
purpose of constructing a flume, must in its articles of incorporation,
specify as follows: The place of beginning, the termini, and the route
so near as may be, and the purpose for which such flume is intended.
Such corporation shall have the right of way over the line named in its
articles; Promded^ It does not conflict with the right of any fluming,
ditching, or other corporation, or with the prior water rights of any
person.

§ 624. Tunnels — same.] In addition to the matters required by
section tliree hundred and eighty-six, every corporation formed for the
purpose of running and excavating a tunnel for mining for gold, silver,
or other ore, or quartz, or coal, must, in the articles of incorporation,
specify as follows: Where said tunnel is to be run; the place of com-
mencement; the course and termination; and the metals, minerals, or
ores designated to be excavated. Through all lodes crossed by such
tunnel, such corporation shall have the rignt of way.

§ 525. Acquiring right of way.] The right of way granted in this
article to any ditch, flume, or tunnel corporation, may be acquired in

Civil Code. Personal Peopkett. 287

«the same manner, and by like proceedings as provided for railroad
corporations.

§ 526. NoN-usBR FOKFSiTS RIGHTS.] Every corporation formed
nnder the provisions of this article must, within ninety days from the
date of the issue of its certificate of incorporation, commence the
construction of its works or the transaction of its business, and must
prosecute the work or business with due diligence until the same is
completed; and the time of the completion of its works shall not
extend beyond a period of two years from the time work was com-
menced as aforesaid; and any such corporation failing to commence
work within ninety days from the date of its certificate, or failing to
complete the same within two years from the time of commencement
as aioresaidr shall forfeit all ri^ht to the route so claimed, and the same
shall be subject to be claimed by any other corporation; Provided,
That this section shall not apply to the construction of any works
through or over any grounds owned by such corporation.

Artiglk XIII. — Bridge Corporations.

§ 528. Articles must include — ^filing.] The term of existence of
a bridge corporation shall not exceed twenty years; and in addition to
the matters required by section four hundred and eighty six, every
corporation formed for the purpose of constructing a bridge over any
stream of water must, in the airticles of incorporation, specify as fol-
lows: The place where such bridge is to be built, and over what
stream; that tha banks on both sides of the stream where such bridge
is to be built are owned by such corporation, or that it has obtained
in writing the consent of the owners of the banks, where the bridge
is to be built, to build the bridge; or that the banks at such place are
included within and part of a public highway, and in such case that
the consent in writing of the board of county commissioners of the
county or counties for the erection of such bridge by such corporation
has been obtained; and it must file a certified copy of its articles of
incorporation in the ofl&ce of the register of deeds of the county or
counties in which its bridge or any part thtreof is situatea or
to be located.

§ 529. County board.] No such corporation shall construct, or
take tolls on, a bridge until authority is granted therefor by the board
of county commissioners of the county or counties in which it is to be
located.

§ 530. Forfeiture provided.] Every such corporation also ceases
to be a body corporate :

1. If, within SIX months from the issue of its certificate by the sec-
retary of the territory, it has not obtained such authority from the
board or boards of county commissioners as mentioned in the last
section; and if, within one year thereafter, it has not commenced the
construction of its bridge and actually expended thereon at least ten
per cent, of its capital stock.

2. If, within three years from the issuing of its certificate of incor-
poration, the bridge be not completed.

§ 531. Good condition required.] Every bridge corporation must at
all times keep the bridge in good and safe condition for travel, both

288 Personal PROPUftTY. Ciml Code.

night and day, unless it be rendered impassable by reason of floods or
high water; and if it be destroyed by fire, or other causes, the corpora-
tion must rebuild within a period of one year from such destructioa,
or its corporate rights shall be forfeited and cease to exist.

§ 532. Posted toll rates.] Such corporation previous to receiving,
and as a precedent condition to the right to i'eceive any toll upon the
use of its bridge, must set up and keep in a conspicuous place on the
bridge a board on which must be written, painted, or printed, in a
plain and legible manner, the rates of toll which shall have been pre-
scribed by the board of county commissioners; and if such corporation
shall demand or receive any greater rate of toll than the rate so
prescribed, it shall be subject to a fine of ten dollars for each offense,
to be recovered in an action by the party aggrieved, or by any public
officer making the complaint.

§ 533. Bad condition — penalty.] No such corporation shall demand
or receive toll whenever said bridge is not in good and safe condition
for use, and any person having paid toll on such bridge and finding
the same in a bad or unsafe condition for loaded wagons or teams,
shall have the right to make complaint before any justice of the peace
in the county or counties in which the bridge is located, who shall
thereupon summon the said corporation, through its toll-gatherer,
officers, or directors, to appear before him to answer the complaint,
within not over five days from the date thereof, and if upon the hear-
ing it be found that the bridge is not in a good and safe condition for
use, or is in a bad condition and unsafe for loaded wagons or teams,
the justice of the peace must impose a fine not less than ten dollars
nor more than fifty dollars upon such corporation ; and he must there-
upon also enter judgment and issue his order that no toll be collected
upon said. bridge until it is put in good repair and safe condition.

§ 534. Collection op toll — penalty.] Each toU-^atherer may pre-
vent from passing through his gate all i)ersons, animals, or vehicles,
subject to toll, until he shall have received, respectively, the tolls
authorized to be collected ; and if he willfully and unreasonably hinder
or delay any such persons, animals, or vehicles from passing, when the
lawful toll has been paid or tendered, he shall forfeit and pay for each
offense a sum not less than five dollars, nor more than twenty-five
dollars, to be recovered in an action by the party aggrieved.

§ 535. Unlawful passing.] Every person who forcibly, willfully, or
fraudulently, passes over any such bridge without having paid or ten-
dered the legal toll for himself, and the property in his charge, shall
for each offense forfeit and pay to the corporation injured a sum not
exceeding twenty-five dollars, to be recovered in an action in the name
of such corporation.

§ 536. Annual report to county board.] The president and secre-
tary of every bridge corporation must annually, within twenty days
from the first day oi January, report under oath to the board of county
commissioners of the county in which the articles of incorporation are
filed specifying as follows: The costs of constructing and providing all
necessary appendages and appurtenances of their bridge; the amount of
all moneys expended thereon, since its construction, for repairs and
incidental expenses; the capital stock, how much paid in and how*
much actually expended thereof; the amount received during the year

\

Civil Code. PsBSONAXi Pkopbbty .• 289

for tolls and from all other soarces, stating each separately; the
amount of dividends made; the indebtedness of the corpoi^tion, speci-
fying for what it was incurred the net amount of profits; and such
other facts and particulars respecting the business of the corporation
as the board of county commissioners may require.

§537. Publication of same — penalty,] Such corporation must
cause tlie report required in the precedinff section to be published for
four weeks in a newspaper published in the toyvn oi> city nearest such
bridge. A failure to make such report and to publish it as aforesaid,
subjects the corporation to a penalty of two hundred dollars; and for
every week permitted to elapse after such failure an additional
penalty of fifty dollars, payable in each case to the county or counties,
from which the authority to construct and take tolls is derived, at the
suit of such county or counties. All such cases must be reported by
the boards of county commissioners to the district attorney, who
must commence an action therefor.

Abticle XIY. — BsLiaiODs, Educational and Bsnbtolsnt (Jobpora-

TiONS — General Provisions.

»

§ 538. Trustees — nuicbeb.] Persons associated together for
religious, eduK^ational, benevolent, charitable or scientific purposes,
may elect trustees or directors, not less tha^ three nor more than
eleven, and may incorporate themselves as generally provided for in
this chapter.

% 539. Contents of articles.] In addition to the requirements of
section three hundred and eighty-six, the articles of incorporation of
any such association, must set forth the holding of the election for
trustees or directors, the time and place the same was held, that a
majority of the members of such association were present and voted
at such election, and the result thereof; which facts must be verified by
the ofiBcei'S conducting the election.

§ 540. Property limited.] All such corporations may hold all the
property of the association owned prior to incorporation, as well as
that acquired thereafter in any manner, and transact all business
relative thereto; but no such corporation shall own or hold more real
p«-operty than may be reasonably necessary for the business and
objects of the association; and no such corporation for religious or
charitable purposes shall acquire or hold real property of a greater
value than fifty thousand dollars.

§ 541. Annual report.] The trustees, or directors, of all such cor-
pora4>ions, must annually make a full report of all their property, real
and personal, including property held m trust by them, and of the
condition thereof, and of all their affairs, to the members of the cor-
poration for which they are acting.

§. 542. Court may permit oonveyanob.] Corporations of the char-
acter mentioned in this article may sell, exchange, or mortgage, real
Sroperty held by them> upon obtaining an order for that purpose from
lie district court held in the county or subdivision in which the prop-
erty is situated. Before making the order, proof must be made to the
satisfaction of the court that notice of the application for leave to sell,
exchange, or mortgage, has been given by publication in such manner

290 •PuRSONAL Prgpbbty. Civil Code.

and for such time as the court or judge has directed, and that it is to the
interest of the corporation that leave should! be granted as prayed for.
The application must be made by petition, and any member of the cor-
poration, or any person claiming a vested, contingent, or reversionary
interest in such real property, may oppose the granting of the order,
by affidavit or otherwise; Provided^ That the provisions of this.section
sifiall not extend to any grounds used or occupied for the burial of the
dead. OjuK.tU.A<toi.<'\<t|

§ 548. By-laws.] Such corporations may, in their by-laws or articles
of incorporation, in addition to the provisions of sections three hun-
dred and eighty-six and four hundrea and four, provide for:

1. The qualification of members, mode of election, and terms of
admission to membership. ^

2. The fees of admission, and dues to be paid to their treasury by
members.

3. The expulsion and suspension of members for misconduct or non-
payment of dues; also, for restoration to membership.

4. Contracting, securing, paying, and limiting the amount of their
indebtedness.

5. Other regulations, not repugnant to the law of the land, and con-
sonant with ttie objects of the corporation.

§ 544. Equal rights.] IMLembers admitted after incorporation, have
all the rights and privileges, and are subject to the same responsibili-
ties, as members of the association prior thereto.

§ 545. Membership rights personal.] No member, or his legal
representative, must dispose of, or transfer, any right or privilege con-
ferred on him, by reason of his membership of such corporation, or be
deprived thereof, except as herein provided.

religious corporations.

§ 546. Trustees — how chosen.] The board of trustees of any relig-
ious corporation, may be chosen at such times and in such manner as
may be in conformity to the rules, usage, or general discipline of such
church.

institutions of learning.

§ 547. Requisites op articles.] Any corporation formed for the
purpose of establishing an institution of learning, must, in addition to
the requirements mentioned in section three hundred and eighty-six, set
forth in its articles of incorporation the particular branch or branches
of science, literature, and the arts, proposed to be taught; and, if the
institution is to be of the rank of a college or university, the number
and designation of the professorhips to be established.

§ 548. Property applied.] Such corporation shall hold the prop-
erty of the institution solely for the purposes of education, and not ror
the individual benefit of itself or any contributor to the endowment
thereof.

§ 549. Objects for expenditure.] The trustees or directors of any
such corporation shall faithfully apply all the funds collected, or the
proceeds of the property belonging to the institution, according to
their best judgment, in erecting, completing, or repairing suitable
buildings, in supporting necessary officers, instructors, agents^ and

Civil Code. Personal Propbrty. 291

employes, and in procuring books, maps, charts, globes, and philo-
sophical, chemical, and other apparatus or cabinets, necessary to the
objects and success of the institution; and all donations, devises, or
bequests made to it for particular purposes, when accepted, shall be
applied in conformity with the express condition of the donor or
devisor.

§ 650. Powers of corporation.] Such corporation has power to
appoint a president or principal for the institution, and such professors,
tutoi^s, ^nd other agents and officers as may be necessary, and to dis-
place any of them as the interests of the institution may require; to
fill vacancies, to prescribe and direct the course of studies and the
discipline, to be pursued and observed in the institution, and the rates
of tuition in the same; and the president and professor shall con-
stitute the faculty of such institution, and they have power to
enforce the rules and regulations enacted for the goverment and disci-

Sline of the students, and to suspend and expel offenders as may be
eemed expedient.

§ 551. Degrees conferred.] Every such corporation having the
rank of a college or university has power to confer, on the recom-
mendation of tne faculty, all such aegrees or honors as are usually
conferred by colleges and universities in the United States, and such
others, having reference to the course of studies and the worth and
accomplishment of the student, as may be deemed proper.

§ 552. Mechanics and agriculture.] Such corporation may con-
nect with its institution, to be used as a part of its course of education,
any mechanical shops or machinery, or lands for agricultural purposes,
not exceeding three hundred and twenty acres, to which may be
attached all necessary buildings for carrying on the mechanical
and agricultural purposes of such institution.

cemetery corporations.

§ 55S. Eeal property limited — uses.] Every cemetery corporation
has power to purchase, or take by gift, grant, or devise, and to hold
real property, not exceeding eighty acres, for the sole use and purpose
of a Durial ground, and to lay out the same into blocks and lots with
convenient avenues and walks, and to sell the lots for the sole use and
purpose of burying the dead; and it may hold all such personal prop-
erty as the legitimate and necessary purposes of the corporation may
require.

§ 554. Survey and plat.] Such corporation shall cause its land,
or such portion thereof as may from time to time become necessary
for that purpose, to be surveyed into lots, avenues, and walks, and
platted, and the plat of ground as surveyed shall be acknowledged
and recorded, in the office of the register of deeds of the county. Each
lot shall be regularly numbered by the surveyor, and such number
shall be marked on the plat and recorded.

§ 555. Powers.] Such corporation has power to inclose, improve,
and embellish its grounds, avenues, and walks, and to erect buildings
or vaults for its use, aad to prescribe in its by-laws rules for the sale,
inclosure, and ornamentation of lots and for erecting monuments or
grave-stones thereon; and to prohibit any use, division, improvement,

292 Personal Property. Civil Code.

or ornamentation of any lot which the corporation may deem improper;
and to make other by-laws and acts to the end that all the appliances,
conveniences and benefits of a public and private cemetery may be
obtained and secured.

§ 556. Use of receipts.] The proceeds arising from the sale of
lots, after deducting all expenses of purchasing, inclosing, laying out,
and improving the ground, and of erecting buildings, shall be
exclusively applied, appropriated and used in protecting, preserving,
improving, and embellishing the cemetery and its appurtenances, and
to paying the necessary expenses of the corporation, and must not be
appropriated to any purposes of profit to the corporation or its
members.

§ 557. Payment of debts.] At least fifty per cent, of the gross
proceeds of sales of blocks, lots, or graves must be applied, as often as
every six months, to the payment of the debts and obligations of the
corporation.

§ 558. Previous burial protected.] When grounds purchased or
otherwise acquired for cemetery purposes have been previously used
as a burial ground, those who are lot owners at the time of the pur-
chase continue to own the same, and are members of the corporation,
as hereinafter provided, with all the privileges the purchase of a
corporation lot confers.

§ 559. Qualification op voters.] At each subsequent election of
officers of any such corporation, held after the first annual election,
the owner or owners of a lot in the cemetery, and none other, shall be
entitled to one vote at such election, or for any other purpose, and no
more than one vote; and shall, by virtue of such proprietorship, be a
member of the corporation, and eligible to any of its offices; but if
there be more than one proprietor of any such lot, then such one of the
proprietors as the majority of them shall designate may cast the one
vote as aforesaid; and each trustee or director shall be the sole pro-
prietor of a lot in such cemetery.

§ 560. Interment renders lot inalienable.] Whenever an inter-
ment is made in any lot transferred to individual owners by the
corporation, the same thereby, while anjr person is buried therein,
becomes forever inalienable, and descends m regular line of succession
to the heirs at law of the owner; but any one or more of such heirs
may release to any other of said heirs his or their interest in the
same, and any other joint owners may release to each other in like
manner.

§ 561. Exempt wholly.] All the property of every such benevolent
corporation, and the lots sold by it to individual proprietors, shall be
exempt from taxation, assessment, lien, attachment, and from levy
and sale upon execution ; and all such real property shall be exempt
from appropriation for streets, roads, or any other public uses or
purposes.

other benevolent corporations.

§562. Special associations and orders.] The following associa-
tions for benevolent and charitable purposes may become incorporated,
as provided in this chapter, to wit:

Civil Code. Personal Property. 293

1. To establish and maintain hospitals and infirmaries for the cure
of the sick and support of the aged and indigent, and asylums for
orphans.

2. For the mutual assistance of the members in time of sickness or
necessity, and to provide a fund for this purpose bv contributions of
the members thereof from time to time, and for tne like incidental
benevolent purposes,

3. To establish and maintain lodges, chapters, and encampments of
fraternities or associations commonly known as free masons, the inde-
pendent order of odd fellows, good templars, sons of temperance, and
other like benevolent orders or societies.

4. To establish and mp^intain fire companies in any incorporated
city or town.

Article XY. — Agricultural Fair Corporations.

§ 563. Property rights.] Agricultural fair corporations may
purchase, hold, or lease any quantity of land, not exceeding in the
aggregate one hundred and sixty acres, with such buildings and
improvements as may be erected thereon, and may sell, lease, or
otherwise dispose of the same at pleasure. This real estate must be
held for the purpose of erecting buildings and making other improve-
ments thereon, to promote and encourage agriculture, horticulture,
mechanics, manufactures, stock raising, and general domestic industry.

§ 564. Debts limited.] Such corporation must not contract any
debts or liabilities in excess of the amount of money in the treasury
at the time of contract except for the purchase of real property, for
which they may create a debt not exceeding three thousand dollars,
secured by mortage on the property of the corporation. The directors
who vote therefer are personally liable for any debt contracted or
incurred in violation of this section.

§ 565. UHARGEs AND EXPENSES.] Agricultural fair corporations are
not conducted for profit, and have no capital stock or income other
than that derived from charges to exhibitors and fees for membership
and admissions, which charges, together with the term of member-
ship and mode of acauiring the same, must be provided for in
their by-laws. Such cnarges and fees must never be greater than to
raise suflBcient money to discharge the debt for the realestate and the
improvements thereon, and to defray the current expenses of fairsJSV*^'^ \^^

Article XVI. — Existing Corporations Electing to Continue Under

THIS Chapter.

§ 566. Proceedings vote certificate.] Any coi^poration existing
at the passage of this act, formed under the laws of this territory, may
elect to continue its existence under the provisions of this chapter
applicable thereto, and it may, at any time thereafter, make such
choice or election, at any meeting of the stockholders or members, or
at any meeting called by the directors or trustees expressly for con-
sidering the subject, if voted for. by stockholders representing a
majority of the capital stock, or by a majority of its members; or it
may be made by the directors or trustees, upon the written consent of

294 Peesonal Property. Civil Code.

that number of such stockholders or members. A certificate of the
action of the directors or trustees, signed by them and their secretary,
with the seal of the corporation, when the election is made upon such
written consent, or a certificate of the proceedings of the meeting of
the stockholders or members, when such election is so made, signed by
the chairman and secretary of the meeting, and a majority of the
directors and trustees, must be filed in the office of the secretarjr of the
territory, and thereafter the corporation shall continue its existence
under the provisions of this chapter which are applicable thereto, and
shall possess all the rights and powers, and be subject to all the obli-
gations, restrictions and limitations prescribed thereby.

m

\

Article XVIL- Duties of Foreign Corporations.

§ 567. Filing charter.] No corporation created or organized under
the .laws of any other state or territory shall transact any business
within this territory, or acquire, hold, and dispose of property, real,

Eersonal, or mixed within this territory, until such corporation shall
ave filed in the oflice of the secretary of the territory, a duly authen-
ticated copy of ils charter or articles of incorporation, and shall have
complied with the provisions of this article; Provided, That the pro-
visions of this act shall not apply to corporations or associations
created for religious or charitable purposes solelj^.

§ 568. Record.] Such charter or articles of incorporation shall be
recorded in a book to be kept by the secretary of this territory for that
purpose.

§ 569. Resident agent to accept service.] Such corporation shall
appoint an agent, who shall reside at some accessible point in this ter-
ntory, in the county where the principal business of said corporation
shall be carried on, duly authorized to accept service of process, and
upon whom service of process may be made in any action in which
said corporation may be a party; and service upon such agent shall be
taken and held as due service upon such corporation. A duly authen-
ticated copy of the appointment or commission of such agent shall be
filed and recorded in tne oflice of the secretary of the territory, and a
certified copy thereof by the secretary shall be conclusive eviaence of
the appointment and authority of such agent.

1
J

CHAPTER IV.

PRODUCTS OF the MIND.

§ 570. Composition- art- maps.] The author of any product of the
mind, whether it is an invention, or a composition in letters or art, or
a design, with or without delineation, or other graphical representa-
tion, has an exclusive ownership therein, and in the representation, or
expression thereof, which continues so long as the product, and the
representations, or expressions thereof made by him, remain in his
possessipn.

Civil Code. Personal Peopbrty. 295

§ 571. Joint products defined.] Unless otherwise agreed, a product
of the mind, in the production of which several persons are jointly
conftemed, is owned by them as follows:

1. If the product is single, in equal proportions; or,

2. If it is not single, in proportion to the contribution of each.

§ 572. Transfer.] The owner of any product of the mind, or of
any representation or expression thereof, may transfer his property in
the same.

§ 573. Publication.] If the owner of a product of the mind inten-
tionally makes it public, a copy or reproduction may be made public
by any person, without responsibility to the owner, so far as the law of
this territory is concerned.

§ 574. Prior publication.] If the owner of a product of the mind
does not make it public, any other pei^son subsequently and originally
producing the same thing, has the same right therein as the prior
author, wnich is exclusive to the same extent against all persons except
the prior author, or those claiming under him.

§ 575. Private letters.] Letters and other private communica-
tions in writing, belong to the person to whom they are addressed and
delivered; but they cannot be published against the will of the writer,
except by authority of law.

CHAPTER V. n

other kinds op personal property.

§ 576. Trade marks limited.] One who produces or deals in a par-
ticular thing, or conducts a particular business, may appropriate to his
exclusive use, as a trade mark, any form, symbol, or name which has not
been so appropriated by another, to designate the origin or ownership
thereof; but he cannot exclusively appropriate any designation, or part
of a designation, which relates only to the name, quality, or the descrip-
tion of the thing, or business, or the place where the thing is produced,
or the business is carried on.

§ 577. Good will.] The good will of a business is the expectation
of continued public patronage, but it does not include a right to use
the name of any person from whom it was acquired.

§ 578. Is PROPERTY.] The good will of a business is property, trans-
ferable like any other.

§ 579. Title deeds. Instruments essential to the title of real
property, and which are not kept in a public office as a record pursuant
to law, belong to the person in whom, for the time being, such title
may be vested, and pass with the title.

296 . Acquisition of Propeety. CivH Code.

Pj^RT IV

Acquisition of Property.

Title L Modes in which Property may be acquired,

11. Occupancy.

III. Accession.

IV. Transfer.
V. Will.

VI. Succession.

TITLE I.

MPDES IN WHICH PROPERTY MAY BE ACQUIRED.

•

§ 580. Modes classed.] Property is acquired by :

1. Occupancy.

2. Accession.

3. Transfer.

4. Will; or,

5. Succession.

TITLE IL

OCCUPANCY.

§ 581. Title by- limited.] Occupancy for any period confers a
title suflScient against all except the territory, and those who have
title by prescription, accession, transfer, will, or succession.

§ 58a. Peesoeiption.] Occupancy for the period prescribed by the
code of civil procedure, or any law of this territoiy as sufficient to bar
an action for the recovery of the property, confers a title thereto,
denominated a title by prescription, which is sufficient against all.

Civil Code, Aooession. 297

TITLE III

ACCESSION.

Phapter I. To Real Property.

II. To Personal Froperty.

CHAPTER 1.

ACCESSION TO REAL PROPERTY.

■

§ 583. Land fixtures - - tenants.] When a person affixes his
property to the land of another, without an agreement permitting him
to remove it, the thing affixed belongs to the owner of the land, unless
he chooses to require the former to remove it; Provided. That a
tenant may remove from the demised premises, any time during the
continuance of his term, anything affixed thereto for purposes of
trade, manufacture, ornament, or domestic use, if the removal can be
eflFected without injury to the premises, unless the thing has by the
manner in which it is affixed, become an integral part of the premises.

§ 584. Riparian accretions.] Where, from natural causes, land
forms by imperceptible degrees upon the bank of a river or stream,
navigable or not navigable, either Tby accumulation oi material, or by
the recession of the stream, such land belongs to the owner of the
bank, subject to any existing right of way over .the bank.

§ 585. Removals in mass.] If a river or stream, navigable or not
navigable, carries away, by sudden violence, a considerable and distin-
guishable part of a bank, and bears it to the opposite bank, or to
another part of the same bank, the owner of the part carried away
may reclaim it within a year after the owner of the land to which it
has been united takes possession thereof.

§ 586. Islands in navigable streams.] Islands and accumulations
of land formed in the beds of streams. which are navigable, belong to
the territory, if there is no title or prescription to the contrary.

§ 587. In other streams.] An island or accumulation of land,
formed in a stream which is not navigable, belongs to the owner of the
shore on that side where the island or accumulation is formed, or, if
not formed on one side only, to the owners of the shore on the two sides,
divided by an imaginary line drawn through the middle of the river.

§ 588. By new channel.] If a stream, navigable or not navigable,
in forming itself a new arm, divides itself and surrounds land belong-
ing to the owner of the shore, and thereby forms an island, the island
belongs to such owner.

§ 589. Ancient bed.] If a stream, navigable or not navigable,
forms a new course, abandoning its ancient bed, the owners of the
land newly occupied take, by way of indemnity, the ancient bed
abandoned, each in proportion to the land of which he has been
deprived.

298 Accession. Civil Code.

CHAPTER 11.

ACCESSION TO PERSONAL PROPERTY.

§ 590. Inseparably united.] When things belonging to diflFerent
owners have been united so as to form a single thing, and cannot be
separated without injury, the whole belongs to the owner of the thing
which forms the principal part, who must, however, reimburse the
value of the residue to the other owner, or surrender the whole to him.

§ 591. Dominant part defined.] That part is to be deemed the
principal, to which the other has been united only for the use, orna-
ment, or completion of the former, unless the latter is the more val-
uable, and has been united without the knowledge of its owner, who
may, in the latter case, require it to be separated and returned to him,
although some injury should result to the thing to which it has been
united.

§ 592. How determined.] If neither party can be considered, the
principal, within the rule prescribed by the last section, the more val-
uable, or, if the values are nearly equal, the more considerable in bulk,
is to be deemed the principal part.

§ 593. Work and material.] If one makes a thing from materials
belonging to another, the latter may claim the thing on reimbursing
the value of the workmanship, unless the value of the workmanship
exceeds the value of the materials^ in which case the thing belongs to
the maker, on reimbursing the value of the materials.

§ 594. Blended materials.] Where one has made use of materials
which in part belong to him and in part to another, in order to form
a thing of a new description, without having destroyed any of the
materials, but in such a way that they cannot be separated without
inconvenience, the thing formed is common to both proprietors in
proportion, as respects the one, of the materials belonging to him, and
as respects the other, of the materials belonging to him and the price
of his workmanship.

§ 595. Admixtures.] When a thing has been formed by the ad-
mixture of several materials of different owners, and n^either can be
considered the principal substance, an owner, without whose consent
the admixture was made, may require a separation, if the materials
can be separated without inconvenience. If they cannot be thus sepa-
rated, the owners acquire the thing in common, in proportion to the
quantity, quality, and value of their materials; but if the materials
of one were far superior to those of the others, both in quantity and
value, he may claim the thing on reimbursing to the others the value
of their materials.

§ 596. Willful uses.] The foregoing sections of this article are
not applicable to cases in which one williuUy uses the materials of an-
other without his consent; but, in such cases, the product belongs to
the owner of the material, if ite identity can be traced,

§ 597. Alternative of kind or value.] In all cases where one,
whose material has been used without his knjowledge> in order to form
a product of a different description, can claim an interest in such
product, he has an option to demand either restitution of his material,

Civil Code. Transfsb. 299

in kind, in the same qnantity, weight, measure, and quality, or the
value thereof; or where ne is entitlea to the product, the value thereof
in place of the product.

§ 598. Damages also.] One who wrongfully employs materials
belongping to another, is liable to him in damages, as well as under the
foregoing provisions of this chapter.

TITLE IV

TRANSFER.

Chapter I. Transfer in general.

11. Transfer of real property.

III. Transfer of personal property.

IV. Recording transfer.
V. Unlawful transfers.

CHAPTER I.

TRANSFER IN GENERAL.

Article I. Definition of transfer.

II. What may be transferred.

III. Mode of transfer.

IV. Interpretation of grants.
V. Eflfect of transfer.

ARTICLE I. — Definition of Transfer.

•

§ 599. Definition.] Transfer is an act of the parties, or of the law,
by which the title to property is conveyed from one living person to
another.

§ 600. Consideration when unnecessary.] A voluntary transfer is
an executed contract, subject to all rules of law concerning contracts
in general; except that a consideration is not necessary to its validity.

Article II. — What may be Transferred.

§ 601. Any property.] Property of any kind may be transferred,
except as otherwise provided by this article.

§ 402. Not transferable] A mere possibility, not coupled with an
interest, cannot be transferred.

300 TiiAN87SR. Civil Cade.

§ 608. Only to principal owner.] . A mere right of re-entry, or of
re-possession for breaeh of a condition subsequent, cannot be trans-
ferred to any one except the owner of the property affected thereby.

Article III. — Mode of Transfer.

§ 604. Writing only when required.] A transfer may be made
without writing in every case in which a writing is not expressly
required by statute.

§ 605. Grant defined.] A transfer in writing is called a grant, or
conveyance, or bill of sale. The term "grant" m this and the next
two articles includes all these instrumente, unless it is specially applied
to real property.

§ 606. Effect by delivery.] A grant takes effect so as to vest the
interest intended to be transferred only upon its delivery by the
grantor.

§ 607. Presumed date.] A grant duly executed is presumed to
have been delivered at its date.

§ 608. To grantee absolute.]. A grant cannot be delivered to the
grantee conditionally. Delivery to nim or to his agent as such is
necessarily absolute, and the instrument takes effect thereupon dis-
charged of any condition on which the delivery was made.

§ 609. Escrow.] A grant may be deposited by the grantor with a
third person, to be delivered on the performance of a condition, and,
on delivery by the depositaiy, it will take effect. While in the posses-
siom of the third person, and subject to condition, it is called an escrow.

§ 610. Redelivery not transfer.] Redelivering a grant of real
property to the grantor, or canceling it, does not operate to retransfer
the title.

§ 611. Constructive delivery.] Though a grant be not actually
delivered into the possession of the grantee, it is yet to be deemed
constructively delivered in the following cases:

1. Where the instrument is, by the a^eement of the parties at the
time of execution, understood to be delivered, and under such circum-
stances that the grantee is entitled to immediate delivery; or,

2. Where it is delivered to a stranger for the benefit ot the grantee,
and his assent is shown or may be presumed.

Article IV. — Interpretation of Grants.

■

§ 612. Like contracts.] Grants are to be interpreted in like rnan-
ner with contracts in general, except so far as is otherwise provided
by this article.

§ 613. Relative force of parts.] A clear and distinct limitation
in a grant is not controlled by other words less clear and distinct.

§ 614. Recitals clear doubts.] If the operative words of a grant
are doubtful, recourse may be had to its recitals to assist the construc-
tion.

§ 615. Interpretation.] A grant is to be interpreted in favor of
the grantee, except that a reservation in any grant^ and every grant
by a public oflficer or body, as such, to a private party, is to be
interpreted in favor of the grantor.

Civil Code. Tkanbfsb. «d3

<

§ 616. Former part prevails.] If several parts t>.
absolutely irreconcilable, the former part prevails.

§ 617. Without issue — defined.] Where a future interest v
by a grant, to take effect on the death of any person without
or heirs of his body, or without issue, or in equivalent words, Su
words must be taken to mean successors or issue living at the death
of the person named as ancestor. - ^

§ 618. Requisites of fee.] Words of inheritance or succession are ^
not requisite to transfer a fee in real property.

Article V. — Effect of Transfer.

§ 619, Vest actual title.] A transfer vests fti the transferee all •
the actual title to the thing transferred which the transferer then
has, unless a different intention is expressed or is necessarily implied.

§ 620. Thing includes incident.] The transfer of a thing transfers
also all its incidents unless expressly accepted; but the transfer of an
incident to a thing does not transfer the thing itself.

§ 621. Party not named.] A present interest, and the benefit of a
condition or covenant respecting property, may be taken by any
natural person under a grant, although not named a party thereto.

CHAPTER II.

TRANSFER OF REAL PROPERTY.

Article I. Mode of Transfer.
II. EflFect of Transfer.

Article I. — Mode of Transfer.

§ 622. By-law or writing.] An estate in real property, other than
an estate at will or for a term not exceeding one year, can be trans-
ferred only by operation of law, or by an instrument in writing, sub-
scribed by the party disposing of the same, or by his agent, theteunto
authorized by writing.

§ 623. Seal abolished — proof.] The execution of a grant of such
estate in real property, if it is not duly acknowledged, must, to entitle
the grant to be recorded, be proved by a siihscribing witness or as
otherwise provided in section six hundred and forty-eight. The
absence of the seal of any grantor or his agent from any grant of an
estate in real property heretofore or hereafter made, shall not inval-
idate or in any manner impair the same.

§ 624. Form of grant.] A grant of an estate in real property may
be made, in substance, as follows:

902 Transfbh. Civil Code.

This grant, made the day of in the year , between A. B.,

of •.....■ , of the first part, and C. D., of .' , of the second part,

witnesseth: That the party of the fir»t part hereby mnts to the party of the second part, in

eoneideration of dollars, now received, all the real property situated in

, and bounded (or described^ as follows :

Witness the hand of the party of the nrst part. "^

A. B. '

o,tki<iA^.^ ^^^' ^^^^^^^ WOMAN.] No estate in the real property of a mar-
^' ned woman passes by any grant purporting to be executed or acknowl-

edged by her, unless the grant or instrument is acknowledged by her
in the manner prescribed by section six hundred and sixty.
fcj^A.**'^'^^§ 626. Power of attorney by same.] A power of attorney of a

married woman, authorizing the execution of an instrument transfer-
ring an estate in her^eparate real p^roperty, has no validity for that
purpose until acknowledged by her in the manner prescribed in section
six hundred and sixty.

2. When an attorney in fact executes an instrument transferring an
estate in real property, he must subscribe the name of his principal to
it, and his own name as attorney in fact.

Article II. — Effect of Transfer.

§ 627. All easements pass.] A transfer of real property passes all
easements attached thereto, and creates in favor thereof an easement
to use other real property of the person whose estate is transferred,
in the same manner and to the same extent, as such property was
obviously and permanently used by the person whose estate is trans-
ferred, for the benefit thereof, at the time when the transfer was
agreed upon or completed.

§ 628. Warrantees implied by grant.] From the use of the word
"grant" in any conveyance by which an estate of inheritance or fee
simple is to be passed, the following covenants, and none other, on the
part of the grantor, for himself ana his heirs, to the grantee, his heirs
and assigns, are implied, unless restrained by elpress terms contained
in such conveyance:

1. That previous to the time of the execution of such conveyance,
the grantor has not conveyed the same estate, or any right, title, or
interest therein, to any person other than the grantee.

2. That such estate is, at the time of the execution of such convey-
ance, free from incumbrances done, made, or suflfered by the grantor
or any person claiming under him. Such covenants may be sued
upon in the same manner as if they had been expressly inserted in
the conveyance.

§ 629. Effect defined.] Every grant of an estate in real property
is conclusive against the grantor, and every one subsequently claim-
ing under him, except a purchaser or incumbrancer who, in good
faith, and for a valuable consideration, acquires a title or lien by an
instrument that is first duly recorded.

§ 630. Valid pro tanto.] A grant, made by the owner of an estate
for life or years, purporting to transfer a greater estate than he could
lawfully transfer, does not work a forfeiture of his estate, but passes
to the grantee all the estate which the grantor could lawfully
transfer.

Civil Code. Trahsfbb. 808

§ 631. Title to highway.] A transfer of land, bounded by a highway,
passes the title of the person whose estate is transferred to the soil of
the highway in front to the centre thereof, unless a different intent
appars from the grant.

§ 632. Tenants' bightsJ Grants of rents, or of reversions, or of
remainders are good and effectual without attornments of the tenants,
but no tenant, who, before notice of the grant, shall have paid rent to
the grantor, must suffer any damage thereby.

§ 633. Pbesumptions — constructions — liens.] Lineal and collat-
eral warrantees, with all their incidents are abolished; but the heirs
and devisees of any person who has made any covenant or agreement
in reference to the title of, in, or to any real property, are answerable
upon such covenant or agreement to the extent of the land descended
or devised to them, in the cases and in the manner prescribed by law.

2. A fee simple title is presumed to be intended to pass by a grant
of real property, unless it appears from the grant that a lesser estate
was intended.

3. An instrument purporting to be a ffrant of real property, to take
effect upon condition precedent, passes the estate upon the peiformance
of the condition.

4. Where a person purports by proper instrument to grant real prop-
erty in fee simple, and subsequently acquires any title or claim of title
thereto, the same passes, by operation of law, to the grantee, or his
successors.

5. Where a grant is made upon condition subsequent, and is subse-
quently defeated by the non-performance of the condition, the person
otherwise entitled to hold under the grant, must reconvey the prop-
erty to the grantor, or his successors, by grant, duly acknowledged for
record.

6. The term 'incumbrances " includes taxes, assessments, and all
liens upon real property.

CHAPTER III.

TRANSFERS OF PERSONAL PROPERTY.

Aetiole I. Mode of transfer.

II. What operates as a transfer.
III. Gifts.

Article I. — Mode of Transfer.

§ 634. Trusts and ships.] An interest in a ship, or in an existing
trust, can be transferred only by operation of law, or by a written
installment, subscribed by the person making the transfer, or by his
agent.

304 T&ANSFBB. Civil Code.

§ 686. Othbb PBR80NALTY.] • The mode of fcraneferring other per-
sonal property by sale, is regulated by the title on that subject in the
third division of this code.

Article II. — What Operates as a Transfer.

§ 686. Present transfer.] The title to personal property, sold or
exchanged, passes to the buyer whenever the parties agree upon a
present transfer, and the thing itself is identified, whether it is sepa-
rated from other things or not.

§ 637. Future.] Title is transferred by an executory agreement
for the sale or exchange of personal property, only when the buyer has
accepted the thing, or when the seller has completed it, prepared it for
delivery, and offered it to the buyer, with intent to transfer the title
thereto, in the manner prescribed by the chapter upon offer of per-
formance.

§ 638. By agent.] Where the possession of personal property,
together with a power to dispose thereof, is transferred by its owner to
another person, an executed sale by the latter while in possession, to a
buyer in good faith and in the ordinary course of business, for value,
transfers to such buyer the title of the former owner, though he may
be entitled to rescind, and does rescind the transfer made by him.

Article III. — Gifts.

§ 639. No CONSIDERATION.] A gift is a transfer of personal property,
made voluntarily and without consideration.

§ 640. Delivery necessary.] A verbal gift is not valid, unless the
means of obtaining possession and control of the thing are given, nor,
if it is capable of delivery, unless there is an actual or symbolical
delivery of the thing to the donee.

§641. Irrevocable.! A gift, other than a gift in view of death,
cannot be revoked by tne giver.

§ 642. In view of death.] A gift in view of death is one which is
made in contemplation, fear, or peril of death, and with intent that it
shall take effect only in case of the death of the giver.

§ 643. Presumed — when.] A gift made during the last illness of
the giver, or under circumstances which would naturally impress him
with an expectation of speedy death, is presumed to be a girt in view
of death.

§ 644. Revocable — limitation.] A gift in view of death may be
revoked by the giver at any time, and is revoked by his recovery from
the illness, or escape from the peril, under the presence of which it
was made, or by the occurrence of any event which would operate as
a revocation of a will made at the same time, but when the gift has been
delivered to the donee, the rights of a bona fide purchaser from the
donee before the revocation shall not be affected by the revocation.

§ 645. Will does not affect.] A gift in view of death is not
affected by a previous will; nor by a subsequent will, unless it
expresses an intention to revoke the gift.

§ 646. Deemed a legacy.] A gift in view of death must be treated
as a legacy, so far as relates only to the creditors of the giver.

CiHl Code. Transfer. S05

CHAPTER IV.

RECORDING TRANSFERS.

Article I. What may be recorded.

II. Mode of recording.

III. Proof and acknowledgment of instruments.

IV. Effect of recording, or of the want thereof.

Article I. — What may be Recorded.

§ 647. Judgments — letters patent, ac] Any instrument or judg-
ment affecting the title to or possession of real property may be
recorded under this chapter.

2. Judgments affecting the title to or possession of real property,
authenticated by the certificate of the clerk of the court in wnich such
judgments were rendered, may be recorded without acknowledgment
or ftirther proof.

8. Letters patent from the United States may be recorded without
acknowledgment or further proof. tJ^- ^ 7 *^ ^j i4

§ 648. rREREQUisiTSS TO RECORD.] Boforc an instrument can be
recorded, unless it belongs to the class provided for in eithei? sections
six hundred and forty-seven or six hundred and sixty-seven, its execu-
tion must be acknowledged by the person executing it, or, if executed
by a corporation, by its president or secretary, or proved by a sub-
scribing witness, or as provided in sections six hundred and sixty-
three and six hundred and sixty-four, and the acknowledgment or
proof certified in the manner prescribed by article three of this
chapter.

§ 649. Proved instrument piled.] An instrument proved and certi-
fied pursuant to sections six hundred and sixty-three and six hundred
and sixty-four may be recorded in the proper office, if the original is
at the. same time deposited therein to remain for public inspection, but
not otherwise. '

§ 650. Creditors' trusts and liens.] Transfers of property in trust
for the benefit of creditors, and transfers of, or liens on property, by
way of mortgage, are required to be recorded in the cases specified in
the title on special relations of debtor and creditor, and the chapter on
mortgages, respectively.

Article II. — I^ods of Recording.

§661. Where and when.] Instruments entitled to be recorded
must be recorded by the register of deeds of the county in which the
real property affected thereby is situated. The register mustj in all
cases, indorse the amount of his fee for the recording on the instru-
ment recorded.

806 Transfkr. Cif}il Code.

2. An instrument is deemed to be recorded when, being duly
acknowledged or proved and certified, it is deposited in the register's
office, with the proper officer, for record.

§ 652. Separate classes.] Grants, absolute in terms, are to be
recorded in one set of books, and mortgages in another.

§ 653. Register's duties.] The duties of register of deeds, in respect
to recording instruments, are prescribed by statute.

§ 654. Of vessels.] The mode of recording transfers of vessels,
registered under the laws of the United States, is regulated by acts of
congress.

Artiolb III.— Proof and Acknowledgment op Instruments.

§ 655. Within territory.] The proof or acknowledgment of an in-
strument may be made at any place within this territory, before a
justice, clerk of the supreme court, or notaiy public.

§ 656. Within jurisdiction.] The proof or acknowledgment of an
instrument may be made in this territory within the judicial district,
county, subdivision, or city for which the officer was elected or
appointed, before either:

1. A judge or clerk of a court of record; or,

2. A mayor of a city; or,

3. A register of deeds; or,

4. A justice of the peace.

§ 657. Within united states.] The proof or acknowledgment of
an instrument may be made without the territory, but within the
United States, and within the jurisdiction of the officer, before either:

1. A justice, judge, or clerk of any court of record of the United
States. '

2. A justice, judge, or clerk of any court of record of any state or
territory; or,

3. A notary public; or,

4. Any other officer of the state or territory where the acknowledg-
ment is made, authorized by its laws to take such proof or acknowl-
edgment.

5. A commissioner appointed for the purpose by the governor of
this territory, pursuant to the political code.

§ 658. Foreign.] • The proof or acknowledgment of an instrument
may be made without the tJnited States before either:

1. A minister, commissioner, or charge d'aflfaires of the United
States, resident and accredited in the country where the proof or ac-
knowledgment is made; or,

2. A consul, vice-consul, or consular agent of the United States,
resident in the country where the proof or acknowledgment is made;
or,

3. A judge of a court of record of the country where the proof or
acknowledgment is made; or,

4. A notary public of such country.

When any of the officers mentioned in this article are authorized by
law to appoint a deputy, the acknowledgment or proof may be taken
by such deputy, in the name of his principal.

§ 659. Requisites op acknowledgment.] The acknowledgment of
an instrument must not be taken, unless the officer taking it knows,

Civil Code, Transfer. 307

or has satisfactory evidence, on the oath or aflSrmation of a credible
witness, that the person making such acknowledgment is the individual
who is described m and who executed the instrument; or, if executed
by a corporation, that the person making such acknowledgment is the
president or secretary of such corporation.

§ 660. Married womak.] The acknowledgment of a married woman
to an instrument purporting to be executed by her, must not be taken,
unless she is made acquainted by the officer with the contents of the
instrument on an examination without the hearing of her husband;
nor certified, unless she thereupon acknowledges to the officer that
she executed the instrument freely, and that she does not wish to
retract such execution, (w^. ti^^oL <ai*v\>^% V

§ 661. Same.] A conveyance by a married woman has the same
effect as if she were unmarried, and may be acknowledged in the
same manner, except as mentioned in the last section* but such
conveyance has no validity until so acknowledged. Ob^.-A » '^^ \

§ 662. By whom proved.] Proof of the execution of an instrument,
when not acknowledged, may be made either:

1. By the party executing it, or either of them; or,

2. By a subscribing witness; or,

3. By other witnesses, in cases mentioned in sections six hundred
and sixty-three and six hundred and sixty-four.

1. If by a subscribing witness, such witness must be personally known
to the officer taking the proof to be the person whose name is sub-
scribed to the instrument as a witness, or must be proved to be such
by the oath of a credible witness.

2. The subscribing witness must prove that the person whose name
is subscribed to the* instrument as a party is the person described in it,
and that such person executed it, and that the witness subscribed his
name thereto as a witness.

§ 663. Handwriting — when.] The execution of an instrument may
be established by proo^ o|[ the hii^ndwriting of the party, and of a sub-
scribing witness, if th4re is one, in the following cases :

1. When the parties apid all the subscribing witnesses are dead; or,

2. When the parties and all the subscribing witnesses are non-presi-
dents of the territory ; or,

3. When the place of their residence is unknown to the party
desiring the proof, and cannot be ascertained by the exercise of due
diligence; or,

4. When the subscribing witness conceals himself, or cannot be
found by the officer by the exercise of due diligence in attempting to
serve the subpoena or attachment; or,

5. In case of the continued failure or refusal of the witness to
testify, for the space of one hour, after his appearance.

§ 664. Facts required.] The evidence taken under the preceding
section must satisfactorily prove to the officer the following facts:

1. The existence of one or more of the conditions mentioned therein;
and,

2. That the witness testifying knew the person whose name purports
to be subscribed to the instrument as a party, and is well acquainted
with his signature, and that it is genuine; and,

308 Transfrk. Civil Code^

3. That the witness testifying personally knew the person who sub-
scribed the instrument as a witness, and is well acquainted with his
signature, and that it is genuine; and,

4. The place of residence of the witness.

§ 665. Contents of cebtificate.] An officer taking proof of
the execution of an instrument must, in his certificate, indorsed
thereon or attached thereto, set forth all the matters required by law
to be done or known by him, or proved by him, on the proceeding,,
together with the names of all tne witnesses examined before him,
their places of residence respectively, and the substance of their
evidence.

§ 666. Forms of certificate.] An (Jfficef taking the acknowledg-
ment of an instrument must indorse thereon or attach thereto a
certificate substantially in the forms hereinafter prescribed; and such
certificate of acknowledgment, unless it is otherwise in this article
provided, mflst be%ubstantially in the following form:

1. Territory op or state of j I oa

County of )

On this day of , in the year , before me personally appeared , known

to me (or proved to me on the oath of ) to be tiie person who is described in* and wiio executed

the within instrument, and acknowledged to me that he (or they) executed the same.

2. The certificate of acknowledgment of an instrument executed
by a corporation must be substantially in the following form:

Territory of , (

Countv of \^'

On this clay of , in the year , before me (here insert the name and quality

of the officer) personally appeared , known to me (or proved to me on the oath of

) to be the president (or the secretary) of the corporatioii that is described in and

that executed the within instrument, and acknowledged to me that such corporation executed
the same.

3. The certificate of acknowledgment by a married woman must be
substantially in the following form: ^

0. i^ ft^. dx-A^A*^^

Countv of \^' ^

' On this day of m the year , before me»(here insert the name and qual-
ity of the officer) personally appeared ......... known to me (or proved to me on the oath of

) to be the person who is described as a married woman in, and whose name is sub-
scribed to the within instrument; and upon an examination, without the hearing of her hus-
bandf I made her acquainted with the contents of the instrument, and thereupon she acknowl-
edged to me that she executed the same freely, and that she does not wish to retract such
execution.

4. The certificate of acknowledgment by an attorney in fact, must
be substantially in the following form:

Territory of . . .' , \

Countv of S^'

On this. day of , in the year , before me (here insert the name and quaUty

of the officer) personally appeared known to me (or proved to me on the oath of ) to be

the person who is descnbed in, and whose name is subscribed to the within instrument as the

attorney in fact of , and acknowledged to me that he subscribed the name of

thereto as principal, and his own name as attorney in fact.

5. Officers taking and certifying acknowledgments or proof of
instruments for record, must authenticate their certificates by affixing
thereto their signatures, followed by the names of their omces; also
their seals of office, if by the laws of the territory, state, or country
where the acknowledgment or proof is taken, or by authority of

Territory op.

Civil Code. Tbansfeb. ^09

^iirliich they are acting, they are iiequired to have official seals. Judges
^nd clerks of courts of record must authenticate their certificates as
aforesaid, by affixing thereto the seal of their proper court; and
mayors of cities by the seal thereof

6. The certificate of proof or acknowledgment, if made before a
justice of the peace, when used in any county other than that in
whik^h he resides, must be accompanied by a certificate under the hand
and seal of the clerk of the district court, or of any other county
^ODurt of record, of the county in which the jtfstice resides, setting
forth that such justice, at the time of taking such proof or acknowl-
edgment, was authorized to take the same, and that the clerk is
acquainted with his handwriting, and believes that the signature to
the original certificate is genuine.

§ 667. Action to oorbbot.] 1. When the acknowledgment or
proof of execution of an instument is properly made, but defectively
oertified, any party interested may have an action in the district
coatt to obtain a judgment correcting the certificate.

'2. Any person interested under an mstrument entitled to be proved
for record, may institute an action in the district court against the
proper parties to obtain a judgment proving such instrument.

3. A certified copy of the judgment in a proceeding instituted under
eitlier of the two preceding subdivisions, showing the proof of the
msfcrument, and atte,ched thereto, entitles the instrument to record,
mth like effect as if acknowledged.

§ 668. Powers of officer.] Officers authorized to take the proof of
instruments are authorized in such proceedings:

1. To administer oaths or affirmations.

2. To employ and swear interpreters.

3. To issue subpoenas, and to punish for contempt, as provided in the
code of civil procedure in regard to the means of producing witnesses.

§ 669* Former laws apply,] The legality of the execution, acknowl-
edgment, proof, form, or record of any conveyance or other instrument
made before this amended code goes into effect, executed, acknowl-
^ged, proved, or recorded, is not affected by anything contained in this
chapter, but depends for its validity and legality, except as to seals,
upon the laws in force when the act was performed.

§ 670. Reoord and effect of former deeds.] All conveyances of
real property made beiore this amended code gbes into effect, and
acknowledged, or proved according to the laws in force at the time of
sach making and acknowledgment or proof, have the same force ^ as
evidence, and may be recorded in the same manner, and with like
effect, as conveyances executed and acknowledged in pursuance of this
chapter.

Article IV. — Effect of Recording, or the Want Thereof.

§ 671. First record valid.] Every conveyance of real property,
other than a lease for a term not exceeding one year, is void as against
any subsequent purchaser or incumbrancer, including an assignee of a
mortgage^ lease, or other conditional estate, of the same property, or
any part thereof, in good faith and for a valuable condde .ration, whose
CO^veya^ce is first duly recorded.

310 Teansfur. Civil Code,

§672. Conveyance defined.] The term " conveyance," as used in
the last section, embraces every instrument in writing by which any
estate or interest in real property is created, aliened, mortgaged, or
incumbered, or by which the title to any real property may be affected ;
except wills, executory contracts for the sale or purchase of real prop-
erty, and powers of attorney.

§ 673. Requisite of revocation.] No instrument containing a

Sower to convey or execute instruments affecting real property, which
as been recorded, is* revoked by any act of the party by whom it was
executed, unless the instrument containing such revocation is also
acknowledged or proved, certified and recorded, in the same office in
which the instrument containing the power was recorded.

§ 674. Effect of proved instruments.] The recording and deposit
of an instrument, proved and certified according to the provisions of
sections six hundred and forty-nine, six hundred and sixty-two, six
hundred and sixty-three and six hundred and sixty-four, are construct-
ive notice of the execution of such instrument to all purchasers and
incumbrancers, subsequent to the recording; but the proof, recording,
and deposit do not entitle the instrument^ or the record thereof, or
the transcript of the record, to be read in evidence.

§ 675. Unrecorded — how valid.] An unrecorded instrument is
valid as between the parties thereto and those who have notice thereof.

CHAPTER V.

UNLAWFUL TRANSFERS.

§ 676. Fraudulent — void.] Every instrument other than a will,
aflfecting an estate in real property, including every charge upon real
property, or upon its rents or profits, made with intent to defraud
prior or subsequent purchasers thereof, or incumbrancers thereon,
IS void as against every purchaser or incumbrancer, for value of the
same property, or the rents or profits thereof.

§ 677. Notice avoids fraud.] No instrument is to be avoided
under the last preceding section, in favor of a subsequent purchaser or
incumbrancer having notice thereof at the 'time his purchase was
made or his lien acquired, unless the person in whose favor the instru-
ment was made, was privy to the fraud intended.

§ 678. Constructive revocation.] Where a power to revoke or
modify an instrument affecting the title to, or the enjoyment of, an
estate in real property is reserved to the grantor, or given to any other

Eerson, a subsequent grant of or charge upon the estate, by the person
aving the power of revocation, in favor of a purchaser or incumbran-
cer for value, operates as a revocation of the original instrument, to
the extent of the power, in favor of such purchaser or incumbrancer.
§ 679. Power deemed executed.] Where a person having a power
of' revocation, within the provisions of the last section, is not entitled
to execute it until after the time at which he makes such a <grant or
charge as is described in that section, the power is deemed to be
executed as soon as he is entitled to execute it.

Civil Code. Will. 311

§ 680. OooD FAITH PROTECTED.] The rfghts of a purchaser or incum-
brancer in good faith and for value are not to be impaired by any of
the foregoing provisions of this chapter.

§ 681. Adverse possession.] Every grant of real property, other
than one made by the territory, or under a judicial sale, is void, if at
the time of the delivery thereof, such real property is in the actual
possession of a person claiming under a title adverse to that of the
grantor.

§ 682. Other unlawful transfers.] Other provisions concerning
unlawful transfers are contained in part two of the fourth division of
this code, concerning the special relations of debtor and creditor.

TITLE V

WILL.

Chapter I. Execution and revocation of wills.
II. Interpretation of wills.
III. General provisions relating to wills.

CHAPTER L

EXECUTION AND RfiVOCATION OF WILL.

§ 683. Who may hake — other property.] Every person over the
age of eighteen years, of sound mind, may, by last will, dispose of all
his estate, real and personal ; and such estate not disposed of' by will
is succeeded to as provided in title VI of this part, being chargeable in
both cases with the payment of all the decedent's debts, as provided in
the code of civil procedure.

§ 684. Married woman equal right.] A married woman may
dispose of all her sepai-ate estate by will, without the consent of her
husband, and may alter or revoke the will in like mariner as if she
were single. Her will must be executed and proved in like manner
as other wills.

§ 685. .Undue influence.] A will or part of a will procured to be
made by duress, menace, fraud, or undue influence, may be denied

Srobate; and a revocation, procured by the same means, may be
eclared void.

§ 686. What disposable.] Eveiy estate and interest in real or per-
sonal property, to which heirs, husband, widow, or next of kin might
succeed, may be disposed of by will.

§ 687. To WHOM.J A testamentary disposition may be made to any
person capable by law of taking the property so disposed of, except

312 Win,. Civil Code.

m

that no corporation can take under a will, unless expressly authorized
by its charter or by statute so to take.

§ 688. Nuncupative will.] To make a nuncupative will valid, and
to entitle it to be admitted to probate, the following requisites mufit
be observed:

1. The estate bequeathed must not exceed in value the sum of one
thousand dollars.

2. It must be proved by two witnesses who were present at the
making thereof, one of whom was asked by the testator at the time
to bear witness that such was his will, or to that effect.

3. The decedent must, at the time, have been in * actual military
service in the field, or doing duty on shipboard at sea, and in either
casein actual contemplation, fear, or peril of death; or the decedent
must have been at the time in expectation of immediate death from
an injury received the same day.

§ 689. Mutual will — revocation.] A conjoint or mutual will is
valid, but it may be revoked by any of the testators in like manner with
any other will.

§ 690. Probate op conditional will.] A will, the validity of which
is made by its own terms conditional, may be denied probate, accord-
ing to the event, with reference to the condition.

§ 691. Execution of will olographic] An olographic will is one
that is entirely written, dated and signed by the hand of the testator
himself It is subject to no other form, and may be made in or out of
this territory, and need not be witnessed.

2. Every will, other than a nuncupative will, must be in writing;
and every will, other than an olographic will, and a nuncupative
will, must be executed and attested as lollows:

1. It must be subscribed at the end thereof by the testator himself,
or some person, in his presence, and by his direction must subscribe
his name thereto.

2. The subscription must be made in the presence of the attesting
witnesses, or be acknowledged by the testator to them, to have been
made by him or by his authority.

3. The' testator must, at the time of subscribing or acknowledging
the same, declare to the attesting witnesses that the instrument is his
will; and,

4. There must be two attesting witnesses, each of whom must sign
his name as a witness, at the end of the will, at the testator's request,
and in his nresence.

§ 692. Not in writing.] A nuncupative will is not rejjuired to be
in writing, nor to be declared or attested with any formalities.

§ 693. Method op witnessing will.] A witness to a written will
must write, with his name, his place or residence; and a jperson who
subscribes the testator's name, by his direction, must wnte his own
name as a witness* to the will. But a violation of this section does
not affect the validity of the will.

§ 694. Codicil — effect.] The execution of a codicil, referring to
a previous will, has the effect to republish the will, as modified by the
codicil.

§ 695. Law of the place governs.] A will of real or personal
property, or both, or a revocation thereof, made out of this territory

Civil Cod^^. Will. 313

by a person not having his domicile in this territory, is as valid when
executed according to the law of the place in which the same was
made, or in which the testator was at the time domiciled, as if it were
made in this territory, and according to the provisions of this chapter.

§ 696. Must be followed.] No will or revocation is valid unless
executed either according to the provisions of this chapter, or accord-
ing to the law of the place in which it was made, or in which the
testator was at the time domiciled.

§ 697. Change of domicile.] Whenever a will or a revocation
thereof^ is duly executed according to the law of the j)lace in which
the same was made, or in which the testator was at the time domiciled,
the same is regulated as to the validity of its execution, by the law of
such place, notwithstanding that the testator subsequently changed
his domicile to a place, by tne law of which such will would be void.

§ 698. Deposited wills.] Every probate judge must deposit in his
office, any will delivered to him for that purpose, and give a written
receipt to the depositor; and must inclose such will in a sealed wrapper,
so that it cannot be read, and indorse thereon the name of the testator,
his residence, and the date of the deposit; and such wrapper must not
be opened until its delivery under the provisions of the next section.

§ 699. How disposed op.I A will deposited under the provisions of
the last section, must be delivered only:

1. To the testator in person.

2. Upon his written order, duly proved by the oath of a subscribing
witness.

3. After his death, to the person, if any, named in the indorsement
on the wrapper of the will; or,

4. If there is no such indorsement, and if the will was not deposited
with the probate judge having jurisdiction of its probate, then to the
probate judge who has jurisdiction.

§ 700. Probate judge opens.] The probate judge with whom a will
is deposited, or to whom it is delivered, must, after the death of the
testator, publicly open and examine the will and file it in his office,
there to remain until duly proved, or to deliver it to the probate
judge having jurisdiction of its probate.

§ 701. Proof of lost will.] A lost or destroyed will of real or
personal property, or both, may be established in the cases provided
m the probate code, or any act in force on that smbject.

§ 702. Revocation of wills.] Except in the cases in this chapter
mentioned, no written will, nor any part thereof, can 1)0 revokea or
altered, otherwise than:

1. By a written will, or other writing of the testator, declaring such
revocation or alteration, and executed with the same formalities with
which a will should be executed by such testator; or,

2. By being burnt, torn, canceled, obliterated, or destroyed, with the
intent and for the purpose of revoking the same, by the testator him-
self, or by some person in his presence and by his direction.

g 703. Proof of destruction.] When a will is canceled or destroyed
by any other person than the testator, the direction of the testator,
and the fact of such injury or destruction must be proved by two
witnesses.

314 Will. Civil Code.

§ 704. PARTLA.L ERASURE.] A revocation by obliteration on the face
of the will may be partial or total, and is complete if the material
part is so obliteratea as to show an intention to revoke; but where, in
order to affect a new disposition, the testator attempts to revoke a
provision of the will by altering or obliterating it on the face thereof,
such revocation is not valid unless the new disposition is legally
effected.

§ 705. Duplicates -revocation.] The revocation of a will, executed
in duplicate, may be made by revoking one of the duplicates.

§ 706. Wills valid.] A prior will is not revoked by a subsec[uent
will, unless the latter contains an express revocation, or provisions
wholly inconsistent with the terms of the former will; but in other
cases the prior will remains effectual so far as consistent with the pro-
visions of the subsequent will.

§ 707. Revivor not presumed.] If, after making a will, the testator
duly makes and executes a subsequent will, the destruction, canceling,
or revocation of the latter does not revive the former, unless it appears
by the terms of such revocation that it was his intention to revive the
former will, or unless after such destruction, canceling, or revocation,
he duly republishes the prior will.

§ 708. Issue, or wife, after will made.] 1. If, after having made
a will, the testator marries and has issue of such marriage, bom either
in his lifetime or afber his death, and the wife or issue survives him,
the will is revoked, unless provision has been made for such issue by
some settlement, or unless such issue are provided for in the will, or
in such way mentioned therein as to show an intention not to make
such provision; and no other evidence to rebut the presumption of
such revocation can be received.

2. If, afber making a will, the testator marries, and the wife survives
the testator, the will is revoked, unless provision has been made for
her by marriage contract, or unless she is provided for in the will, or
in such way mentioned therein as to show an intention not to make
such provision; and no other evidence to rebut the presumption of
revocation must be received.

§ 709. Woman's marriage revokes will.] A will executed by an
unmarried woman is revoked by a subsequent marriage, and is not
revived by the death of her husband.

§ 710. Devised property sold — effect.] An agreement made by
a testator, for the sale or transfer of property disposed of by a will
previously made, does not revoke such disposal; but the property
passes by the will, subject to the same remedies on the testator's agree-
ment, for a specific performance or otherwise, against the devisees or
legatees, as might be had against the testator's successors, if the same
had passed by succession.

§ 711. Incumbrance not revocation.] A charge or incumbrance
upon any estate, for the purpose of securing the payment of money
or the performance of any covenant or agreement, is not a revocation
of anv will relating to the same estate which was previously executed;
but the devise and legacies therein contained must pass subject to
such charge or incumbrance.

§ 712. Partial disposal after will.] A conveyance, settlement,
or other act of a testator, by which his interest in a thing previously

t

Civil Code, Will. 815

disposed of by his will is altered, but not wholly divested, is not a
revocation; but the will passes the property which would otherwise
devolve by succession.

§ 713. When such act revokes.] If the instrument by which an
alteration is made in the testator's interest in a thing previously dis-
posed of by his will, expresses his intent that it shall be a revocation,
or if it contains provisions wholly inconsistent with the terms and
nature of the testamentaiy disposition, it operates as a revocation
thereof, unless such inconsistent provisions depend on a condition or
contingency, by reason of which they do not take effect.

§ 714. Codicils.] The revocation of a will revokes all its codicils.

I 715. Succession supplements will.] Whenever a testator has a
child bom after the making of his will, either in his lifetime or after
his death, and dies leaving such child unprovided for by any settlement,
and neither provided for nor in any way mentioned in his will, the
child succeeds to the same portion of the testator's real and personal
prepay, that he would have succeeded to if the testator had died
intestate.

1. When any testator omits to provide in his will for any of his
children, or for the issue of any deceased child, unless it appears that
such omission was intentional, such child, or the issue of such child,
must have the same share in the estate of testator as if he had died
intestate, and succeeds thereto as provided in the preceding (this)
section.

2. When any share of the estate of a testator is assigned to a child
born after the making of a will, or to a child, or the issue of a child,
omitted in the will as hereinbefore mentioned, the same must first be
taken from the estate not disposed of by the will, if any; if that is not
sufficient, so much as may be necessary must be taken from all the
devisees or legatees, in proportion to the value they may respectively
receive under the will, unless the obvious intention of tne testator in
relation to some specific devise or bequest, or other provision in the
will, would thereby be defeated; in such case such specific devise,
legacy, or provision, may be exempted from such apportionment, and a
different apportionment, consistent with the intention of the testator,
may be adopted.

3. If such children, or their descendants, so unprovided for, had an
equal proportion of the testator's estate bestowed on them in the
testator's lifetime, by way of advancement, they take nothing in virtue
of the provisions of the three preceding subdivisions.

4. Every devise of land in any will conveys all the estate of the
devisor therein, which he could lawfully devise, unless it clearly
appears by the will that he intended to convey a less estate.

§ 716. Devisee's descendants take.] When any estate is devised
to any child, or other relation of the testator, and the devisee dies
before the testator, leaving lineal descendants, such descendants take
the estate so given by the will, in the same manner as the devisee
would have done had ne survived the testator.

§§717. Gift to A WITNESS VOID.] All beneficial devises, legacies or
ifts whatever, made or given in any will to a subscribing witness
hiereto, are void unless there are two other competent subscribing
witnesses to the same; but a mere charge on the estate of the testator

316 Will. Civil Code.

for the payment of debts does not prevent his creditors from being
competent witnesses to the will.

§ 718. Not if entitled — competency.] If a witness to whom any
beneficial devise, legacy, or gift, void bj'^ the preceding section, is made,
would have been entitled to any share of the estate of the testator, in
case the will should not be established, he succeeds to so much of the
share as would be distributed to him, not exceeding the devise or
bequest made to him in the will, and he may recover the same of the
other devisees or legatees named in the will, in proportion to and out
of the parts devised or bequeathed to them.

1. If the subscribing witnesses to a will are competent at the time
of attesting its execution, their subsequent incompetency, from what-
ever cause it may arise, does not prevent the probate and allowance
of the will, if it is otherwise satisfactorily proved.

§ 719. Property acquired after will.] Any estate, right, or
interest in lands accjuired by the testator after the making of his will
passes thereby and in like manner as if title thereto was vested in him
at the time oi making the will, unless the contrary manifestly apf)ears
by the will to have been the intention of the testator. Every will
made in express terms, devising, or in any other terms denoting the
intent of the testator to devise all the real estate of such testator,
passes all the real estate which such testator was entitled to devise at
the time of his decease.

CHAPTER II.

interpretation of wills, and effect of various provisions.

§ 720. Intention prevails.] A will is to be construed accordiujg to
the intention of the testator. Where his intention cannot have effect
to its full extent, it must have effect as far as possible.

§ 721. Will excludes oral declaration.] In case of uncertainty,
arising upon the face of a will, as to the application of any of its
provisions, the testator's intention is to be ascertained from the words
of the will, taking into view the circumstances under which it was
made, exclusive of his oral declarations.

§ 722. Rules of interpretation.] In interpretating a will subject
to the laws of this territory, the rules prescribed by the following sec-
tions of this chapter are to be observed, unless an intention to the
contrary clearly appears.

§ 723. Construed together, if several.] Several testamentary
instruments, executed by the same testator, are to be taken and con-
strued together as one instrument.

§ 724. Irreconcilable parts.] All the parts of a will are to be con-
strued in relation to each other, and so as, if possible, to form one con-
sistent whole, but where several parts are absolutely irreconcilable,
the latter must prevail.

§ 725. Inaccuracies.] A clear and distinct devise or bequest can-
not be affected by any reasons assigned therefor, or by any other
words not equally clear and distinct, or by inference or argument

Civil Code. Will. 317

from other parts of the will, or bv an inaccurate recital of or reference
to its contents in another part oi the will.

§ 726. Ambiguities.] Where the meaning of any part of a will
is ambiguous or doubtful, it may be e:xplained oy any reference thereto,
or recital thereof, in another part of the will.

§ 727. Words in ordinary use.] The words of a will are to be taken
in their ordinary and gi-ammatical sense, unless a clear intention to
use them in another sense can be collected, and that other can be
ascertained. *

§ 728. Construction.] The words of a will are to receive an inter-
pretation which will give to every expression some -effect, rather than
one which shall render any of the expressions inoperative.

§ 729. Validity.] Of two modes of interpreting a will, that is to be
preferred which will prevent a total intestacy.

§ 730. Technical words.] Technical words in a will are to be taken
in their technical sense, unless the context clearly indicates a contrary
intention.

§ 731. Not necessary.] Technical words are not necessary to give
effect to any species of disposition by a will.

§ 732. Words of inheritance.] The term "heirs," or other words of
inheritance, are not requisite to devise a fee, and a devise of real prop-
erty passes all the estate of the testator, unless otherwise limitea.

§ 733. Executing power.] Real or personal property embraced in a
power to devise, passes by a will purporting to devise all the real or
personal property of the testator.

§ 734. General words.] A devise or bequest of all the testator's
real or personal property, in express terms, or in any other terms
denoting his intent to dispose of all his real or personal property,
passes all the real or personal ]jroperty which he was entitled to
dispose of by will at the time of his death.

§ 735. Residue of realty.] A devise of the residue of the testator's
real property passes all the real property which he was entitled to
devise at the time of his death, not otherwise effectually devised by
his will.

§ 736. Op personalty.] A bequest of the residue of the testator's
personal property, passes all the personal property which he was
entitled to bequeath at the time of nis death, not otherwise effectually
bequeathed by his will.

8 737. Effect of certain terms.] A testamentary disposition to
'*heirs," '^relations," 'Nearest relations," "representatives," "legal rep-
resentetives," or "personal representatives," or "family," ^Hssue,"
"descendants," "nearest," or "next of kin," of any person, without other
words of qualification, and when the terms are used as words of dona-
tion, and not of limitation, vests the property in those who would be
entitled to succeed to the property of such person, according to the
provisions of the title on succession, in this code.

§ 738. Words of donation.] The terms mentioned in the last sec-
tion are used as words of donation, and not limitation, when the
property is given to the person so designated directly, and not as a
qualification of an estate given to the ancestor of such person.

§ 739. Postponed possession.] Words in a will referring to death or
survivorship simply, relate to the time of the testator^s death, unless

818 WiLt. Civil Code.

possession is actually postponed, when they must be referred to the
time of possession.

§ 740. Class includes all.] A testamentary disposition to a class
includes every person answering the description at the testator's
death; but when the possession is postponed to a future period, it
includes also all persons coming witnin the description, before the
time to which possession is postponed.

§ 741. Conversion of realty.] When a will directs the conversion
of real property into money, sucn property and all its proceeds must
be deemed personal property, from the time of the testator's death.

§ 742. Unborn^ child included.] A child conceived before, but not
born until after a testator's death, or any other period when a disposition
to a class vests in right or in possession, takes, if answering to the
description of the class.

I 743. Imperfection not orallIt removed.] When, applying a vnll,
it is found that there is an imperfect description, or that no person or
property exactly answers the description, mistakes and omissions
must be corrected, if the error appears from the context of the will
or from extrinsic evidence; but evidence of the declarations of the
testator as to his intention cannot be received.

§ 744. Vest at death.] Testamentary disjjositions, including
devises and bequests to a person on attaining majority, are presumea
to vest at the testator's death.

§ 745. Disposal divested only when.] A testamentary disposition,
when vested, cannot be divested unless upon *the occurence of the
precise contingency prescribed by the testator for that purpose.

§ 746. Death causes failure.] If a devisee or legatee dies during
the lifetime of the testator, the testamentary disposition to him fails,
unless an intention appears to substitute some other in his place,
except as provided in section seven hundred and sixteen.

§ 747. K^OT OF remainder.] The death of a devisee or legatee of a
limited interest, before the testator's death, does not defeat the
interests of persons in remainder, who survive the testator.

§ 748. Uncertain event.] A conditional disposition is one which
depends upon the occurence of some uncertain event, by which it is
eitner to take effect or be defeated.

§ 749. Condition precedent.] A condition precedent in a will, is
one which is required to be fulfilled before a particular disposition
takes effect.

§ 750. Unknown or unavoidable event.] Where a testamentary
disposition is made upon a condition precedent, nothing vests until the
condition is fulfilled; except where such fulfillment is impossible,
in which case the disposition vests, unless the condition was the sole
motive thereof, and tne impossibility was unknown to the testator^
or arose from an unavoidable event subsequent to the execution of
the will.

§ 751. Substantial compliance.] A condition precedent in a will
is to be deemed performed when the testator's intention has been sub-
stantially, though not literally complied with.

§ 752. Subsequent divesting.] A condition subsequent is where
an estate or interest is so given as to vest immediately, subject only to
be divested by some subsequent act or event.

Civil Code. ' Will. 819

% 753. Owners in common.] A devise or legacy given to more than
one person, vests in them as owners in common.

§ 754. Gifts do not reduce legacies.] Advancements or gifts are
not to be taken as ademptions of general legacies, unless such inten-
tion is expressed by the testator in writing.

CHAPTER III.

general provisions.

§ 755. Legacies classed and defined.] Legacies are distinguished
and designated, according to their nature, as follows:

L A legacy of a particular thing, specified, and distinguished from
all others of the same kind belonging to the testator, is specific; if
such legacy fails, resort cannot be had to the other property of the
testator.

2. A legacy is demonstrative when the particular fund or personal
property is pointed out from which it is to be taken or paid; if such
rana or property fails, in whole or in part, resort may be had to the
general assets, as in case of a general legacy,

3. An annuity is a bequest of certain specified sums periodically;
if the fund or property out of which they are payable fails, resort may
be had to the general assets, as in case of a general legacy.

4. A residuary legacy embraces only that which remains after all
the bequests of the will are discharged.

5. All other legacies are general legacies.

§ 756. Non-exempt property assets.] When a person dies intestate,
all his property, real and personal, without any distinction between
them, is chargeable with the payment of his debts, except as otherwise
provided in this code and the code of civil procedure.

§ 757. Order of property for debts.] The property of a testator,
except as otherwise specially provided in this code and the code of civil

{)rocedure, must be resorted to for the payment of debts, in the
ollowing order:

1. The property which is expressly appropriated by the will for the
payment of the debts.

2. Property not disposed of by the will.

3. Property which is devised or bequeathed to a residuary legatee.

4. Property which is not specifically devised or bequeathed; and,

5. All other property ratably. Before any debts are paid, the expenses
of the administration and the allowance to the family must be paid or
provided for.

§ 758. For legacies.] The property of a testator, except as other-
wise specially provided in this code and the code of civil procedure,
must oe resorted to for the payment of legacies, in the following order:

1. The property which is expressly appro.priated by the will for the
payment of the legacies.

2. Property not disposed of by the will.

3. Property which is devised or bequeathed to a residuary legatee.

4. Property which is specifically devised or bequeathed.

320 Will. Civil Code.

§ 759. Preferred LEGACIES.] Legacies to husband, widow, or kindred
of any class, are chargeable only after legacies to persons not related
to the testator.

§ 760. Class only affected.] Abatement takes place in any class
only as between legacies of that class, unless a different intention is
expressed in the wul.

§ 761. Representative may sell.] In a specific devise or legacy,
the title passes by the will, but possession caii only be obtained from the
personal representative; and he may be authorized by the probate court
to sell the property devised or bequeathed in the cases herein
provided.

§ 762. Proved devise impairs deed by heir.] The rights of a pur-
chaser or incumbrancer of real property, in good faith, and for value,
derived from any person claim ine the same by succession, are not
impaired by any devise made by the decedent from whom succession is
claimed, unless the instrument containing such devise is duly proved
as a will, and recorded in the office of the probate court having juris-
diction thereof, or unless written notice of such devise is filed with
the probate judge of the county where the real property is situated
within four years after the devisor's death.

§ 763. Succession to limited devises.] Where specific legacies are
for life only, the first legatee must sign and deliver to the second
legatee, or, if there is none, to the personal representative, an inven-
tory of the property, expressing that the same is in his custody for life
only, and that, on his decease, it is to be delivered and to remain to
the use and for the benefit of the second legatee, or to the personal
representative, as the case may be.

§ 764. Income af^ter death.] In case of a bequest of the interest
or income of a certain sum or fund, the income accrues from the
testator's death.

§ 765. Satisfied before death.] A legacy, or a gift in contem-
plation, fear, or peril of death, may be satisfied before death.

§ 766. Due in one year.] Legacies are due and deliverable at the
expiration of one year after the testator's decease. . Annuities com-
mence at the testator's decease.

§ 767. Interest after due.] Legacies bear interest from the
time when they are due and payable, except that legacies for main-
tenance, or to the testator's widow, bear interest from the testator's
decease.

§ 768. Intention controls.] The four preceding sections are in all
cases to be controlled by a testator's express intention.

§ 769. Unnamed executor entitled.] Where it appears, by the
terms of a will, that it was the intention of the testator to commit
the execution thereof, and the administration of his estate to any
person as executor, such person, although not named executor, is
entitled to letters testamentary in like manner as if he had been
named executor,

§ 770. Void authority.] An authority to an executor to appoint an
executor is void,

§ 771. Executor's power begins.] No person has any power, as an
executor, until he qualifies, except that, before letters have been issued,

Civil Code. Sucobssion. S21:

he may pay funeral charges and take necessary measures for the pre-
servation of the estate.

§ 772. Limitation of power.] No executor of an executor, as such,
has any power over the estate of the first testator.

§ 773. Will includes codicil.] The term " will," as used in this
code, includes all codicils as well as wills.

§ 774. Law OF place or domicile.] Except as otherwise provided,
the validity and interpretation of wills is governed, when relating to
real property within this territory, by the law of this territory; when
relating to personal property, by the law of the testator's domicile.

§ 775. . Liability of devisees and legatees.] Those to whom prop-
erty is given by will, are liable for the obligations of the testator in
the cases and to the extent prescribed by the code of civil procedure,
or the statutes in such case made and provided.

TITLE VL

8UGCB88ION.

§ 776. Definition of.] Succession is the coming in of another to
take the property of one who dies without disposing of it by will.

§ 777. All property to heirs.] The property, both real and per-
sonal, of one who dies without disposing of it by will, passes to the.
heirs of the intestate, subject to the control of the probate court, and
to the possession of any administrator appointed by that court, for the
purposes of administration.

§ 778. Order of, to property not willed.] When any person hav-
injg title io anj^ estate not otherwise limited by marriage contract, dies
without disposing of the estate by will, it is succee4ed to and must be
distributed, unless otherwise expressly provided in. this code and the
probate code, subject to the payment of his debts, in the following
manner:

1. If the decedent leave a surviving husband or wife, and only one
child, or the lawful issue of one child, in equal shares to the surviving,
husband, or wife and child, or issue of such child. If the decedent
leave a surviving husband or wife, and more than one child living, or
one child living, and the lawful issue of one or more deceased children,
one-third to the surviving husband or wife, and the remainder in equal
shares to his children, and to the lawful issue of any deceased child, by
right of representation; but if there be no child of the decedent living
at his death, the remainder goes to all of his lineal descendants; and
if all the descendants are in the same degree of kindred to the decedent
they share equally, otherwise they take according to the right of repre-
sentation. If the decedent leave no surviving husband or wife, but
leaves issue, the whole estate goes to such issue, and if such issue con-
sists of more than one child living, or one child living and the lawful
issue of one or more deceased children, then the estate goes in equal

32^ StrccESSidi^f. Civil Code.

shares to the children living, or to the child living, and the issne of
the deceased child or children by right of representation.

2. If the decedent leave no issue, the estate ffoes in equal shares to
the surviving husband, or wife, and to the decedent's father. If there
be no father, then one-half goes in equal shares to the brothers and
sisters of the decedent, and to the children of any deceased brother, or
sister, by right of representation; if he leave a mother also, she takes
an equal share with the brothers and sisters. If decedent leave no
issue, nor husband, nor wife, the estate must go to the father.

3. If there be no issue, nor husband nor wife, nor father nor mother,
then in equal shares to the brothers and sisters of the decedent, and to
the children of any deceased brother, or sister, by right of representa-
tion; if a mother survive, she takes an equal share with the brothers
and sisters.

4. If the decedent leave no issue, nor husband nor wife, nor father,
and no brother or sister is living at the time of his death, the estate

foes to his mother, to the exclusion of the issue, if any, of deceased
rothers or sisters.

5. If the decedent leave a surviving husband or wife, and no issue,
and no father nor mother, nor brother nor sister, the whole estate goes
to the surviving husband or wife.

6. If the decedent leave no issue, nor husband nor wife, and no
father nor mother, nor brother nor sister, the estate must go to the
next of kin, in equal de^ee, excepting that when there are two or
more collateral kindred, m equal degree, but claiming through different
ancestors, those who claimed through the nearest ancestors must be
preferred to those claiming through an ancestor more remote. How-
ever:

7. If the decedent leave several children, or one child and the issue
of one or more children, and any such surviving child dies under age,
and not having been married, all the estate that came to the deceased
child by inheritance from such decedent, descends in equal shares to
the other children of the same parent, and to the issue of any such
other children who are dead, by right of representation.

8. If, at the death of such child, who dies under age, not having been
married, all the other children of his parents are also dead, and any of
them have left issue, the estate that came to such child by inheritance
from his parent, descends to the issue of all other children of the same
parent; and if all the issue are in the same degree of kindred to the
child, they share the estate equally, otherwise they take according to
the riffht of representation.

9. If the decedent leave no husband, wife, or kindred, the estate
escheats to the territory for the support of common schools.

§ 779. Abolished.] Dower and courtesy are abolished.

§ 780. Inheritance by illegitima^te child.] Every illegitimate child
is an heir of the person who, in writing, signed in the presence of a
competent witness, acknowledges himself to be the father of such child;
and in all cases is an heir of his mother; and inherits his or her
estate, in whole or in part, as the case may be, in the same manner as
if he had been bom in lawful wedlock; but he does not represent his
father or mother by inheriting any oart of the estate of his or her kin-
dred, either lineal or collateral, unless, before his death, his parents

Civil "Cade. Suook66K>n. 338

shalb have imtermairried, and his father, after such marriage, acknowl-
edges him aa his child, or adoptB him into his family; in which case
such child and all the legitimate children, are considered brothers and
sisters^ and on the death of either of them, intestate, and without
issue, the others inherit his estate, and a»e heirs, as hereinbefore pro-
vide isk lika manner* as if all the children had been legitimate; saving
to tiie &4iher and mother respectively, their righte in the estates of aU
the children in like manner as if all had been legitimate. The issue of
all marriages, null in law, or dissolved by divorce, are legitimate.

§ 781. From ths same.) If an illegitimate child, who bad not been
acknowledged or adopted by his father, dies intestate, without lawful
issiie^ his estate goes to his mother, or in case of her decease, to her
heirs at law.

§ 782. Each aBNXRATiox a dsgbeb.] The degree of kindri)d is
established by the number of generations, and each genera^tion is
called a degree.

§ 783. LiKSAL AND ooLLATXRAL.] The sories of degrees forms the
lii^; the series of degrees between persons who descend from one
another is called direct or lineal consanguinity; and the series of
degrees between petrsons who do not descend from one another, but
spring from a common ancestor, is called the collateral line or collat-
eral consanguinity.

f 784. AsoBNniNa and dbsoinding.] The direct line is divided into
a direct line descending, and a direct line ascending. The first is that
which connects the ancestor with those who descend from him. The
second is that which connects a person with those from whom he
descends.

§ 785. DiBBOT LiifB DBGBBBS.] In the direct line there are as many
decrees as there are generations. Thus the son is, with regard to the
fawer, in the first degree; the grandson in the second, and vice versa
with regard to the father and grandfather toward the sons and
grandsons.

§ 786. GoUiATBBAL DB0BEB8.] In the collateral line the degrees are
counted by ceueratioiis, &om one of the relations up to the common
ancestor, ana from the common ancestor to the other relations. In
such ^ocxmputation the decedent is excluded, the relative included, and
the ancestor . counted but once. Thus, brothers are related in the
second degree; uncle and nephew in the third degree; cousins german
in the fourth degree,i and so on.

§ 287. . Hali* blood.] Kindred of the half blood inherit e<jually with
those of the whole blood in the same degree, unless the inheritance
come to the intestate by descent, devise, or gifb of some one of liis aur
ceetors, in which case all those who are not of the blood of such
ancestors, must be excluded from such inheritance.

§ 788. Advancbments part of share.} Any estate, real or personal,
given by the decedent in his lifetime, as an advancement to any child
or other lineal descendant, is a part of the estate of the decedent for
the purposes of division and distribution thereof among his issue, and
must be taken by such child or other lineal descendant, toward his
share of the estate of the decedent.

§ 789. Excess not refunded.] If the amount of such advancement
exceeds the share of the heir receiving the same, he must be excluded

824 StrocsssiON. Civil Code.

from any further portion in the division and distribution of the estate,
but he must not be required to refund any part of such advancement;
and if the amount so received is less than nis share, he is entitled to
so much more as will give him his full share of the estate of the
decedent. V

§ 790. Advanobmbnts dbviitbd.] All gifts and grants are made as
advancements, if expressed in the gift or grant to be so made, or if
charged in writing by the decedent as an advancement, or acknowl-
edged in writing as such, by the child or other successor or heir.

1 791. ExpBBssBD VALUB oovBBNS.] If the value of the estate so
advanced is expressed in the conveyance, or in the charge thereof
made by the decedent, or in the acknowledgment of the party receiv-
ing it^ it must be held as of that value in the division and distribution
of the estate; otherwise it must be estimated according to its value
when ffiven, as nearly as the same can be ascertained.

§ 792. Representation — same bulb.] If any child, or other lineal
descendant receiving advancement, dies before the decedent, leaving
issue, the advancement must be taken into consideration in the
division and distribution of the estate, and the amount thereof must
be allowed accordingly by the representatives of the heirs receiving
the advancement, in like manner as if the advancement had been
made directly to them.

§ 793. Inhbbitanob by — defined.] Inheritance or succession by
right of representation takes place when the descendants of any
deceased heir take the same share or right in the estate of another
person that their parents would have taken if living. Posthumous
children are considered as living at the death of their parents.

§ 794. Alienage no disabilitt.1 Aliens may t^ke in all cases, by
succession, as well as citizens; and no person, capable of succeeding
under the provisions of this title, is precluded from such succession by
reason of the alienage of any relative.

§ 795. Escheated estates.] If there is no one capable of succeed-
ing under the preceding sections, and the title fails from a defect of
heirs, the property of a decedent devolves and escheats to the territory;
and an action for the recovery of such property, and to reduce it into
the possession of the territory, or for its sale and conveyance, may be
brought by the district attorney in the district court of the county or
judicial subdivision in which the property is situated.

§ 796. Subject to chabges.] Real property passing to the terri-
tory under the preceding section, whether held by the territory or its
grantees, is subject to the same charges and trusts to which it would
have been subject if it had passed by succession.

§ 797. Liability of heibs.] Those who succeed to ihe property of
a decedent, are liable for his obligations in the cases and to the extent
prescribed by the probate code.

Civil Cade. OBUGATioif b. 825

DIVISION THIRD.

OBLIGATIONS.

Part L Obligations in General.

II. Contracts.

III. Obligations Imposed by Law.

IV. Obligations arising from Particular Transactions.

PART I.

Obligations in General

T1T1.E I. Definition of Obligations.

II. Interpretation of Obligations.

III. Transfer of Obligations.

IV. Extinction of Obligations.

TITLE L

DEFINITION OF OBLIGATIONS.

§ 798. Definition.] An obligation is a legal duty, by which a per-
son is bound to do or not to do a certain thing.
§ 799. Origin and enforcement.] An obligation arises either from:

1. The contract of the parties; or,

2. The operation of law.

An obligation arising from operation of law, may be enforced in the
manner provided by law, or by civil action or proceeding.

B26 Obligations. Civit Code,

TITLK IL

rOTERPRBTATIOU'or OBLlG^Ttdlfs.

Chapter I. Geneml Rules of Interpretation.

II. Joint or Several Obligations.

III. Conditional Obligations.

IV. Alternative Obligatipns.

CHAPTER I.

GENERAL RULES OF INTERPRETATION.

§ 800. Rules of interpretation.] The rules which govern the
interpretation of contracts are prescribed by part two of this division.
Other obligations are interpreted by the garne miles by which statutes
of a similar nature are interpreted.

CHAPTER IL

JOINT OR SEVERAL OBLIGATIONS.

§ 801. Classes.] An obligation imposed upon several persons, or a
right created in favor of several persons, may be:

1. Joint.

2. Several; or,

3. Joint and several.

§ 802. Presumed joint.] An obligation imposed upon several persons,
or a right created in favor of several persons, is presumed to be joint,
and not several, except in the special cases mentioned in the title on
the interpretation of contracts. This presumption, in the case of a
right, can be overcome only by express words to the contrary.

§ 803. Contribution.] A party to a joint, or joint and several,
obligation, who satisfies more than hie share of the claim against all,
may require a proportionate contribution from all the parties joined
with him.

CHAPTER III.

CONDITIONAL OBLIGATIONS. '

f

§ 804. Uncertain event.] An obligation is conditional, when the
rights or duties of any party thereto depend upon the occurrence of an
uncertain event.

Civil Code. Obugations. 327

§ 805. Conditions classed.] Conditions may be precedent, concur-
rent, or subsequent.
§ 806. Precedent.] A condition precedent is one which is to be

Serformed before some right dependent thereon accrues, or some act
eipendent thereon is performed.

§807. Concurrent.] Conditions concurrent are those which are
mutually dependent, and are to be performed at the same time.

§ 808. Subsequent.] A condition subsequent is one referring to a
future event; upon happening of which the obligation becomes no longer
binding upon the other party, if he chooses to avail himself of the
condition.

§ 809. Equity requires equity.] Before any party to an obligation
can require another party to perform any act under it, he must fulfill
all conditions precedent thereto imposed upon himself; and must be
able, and offer, to fulfill all conditions concurrent, so imposed upon him
on the like fulfillment by the other party ; except as provided by the
next section.

§ 810. Performance waived.] If a party to an obligation gives
notice to another, before the latter is in default, that he will not per-
form the same upon his part, and does not retract such notice before
the time at which, performance upon his part is due, such other party
is entitled to enforce the obligation without previously performing or
offering to perform any conditions upon his part, in favor of the
former party.

§ 811. Unlawful conditions.] A condition in a contract, the ful-
fillment of which is impossible or unlawful, within the meaning of the
article on the object of contracts, or which is repugnant to the nature
of the in.terest created by the contract, is void.

§812. Forfeiture.] A condition involving a forfeiture must be
strictly interpreted against the party for whose benefit it is created.

CHAPTER IV.

alternative obligations.

§ 813. Selection allowed.] If an obligation requires the perform-
ance of one of two acts, in the alternative, the party required to
perform has the right of selection, unless it is otherwise provided by
the terms of the obligation.

§ 814. Not used, pass to other. 1 If the party having the right of
selection between alternative acts does not give notice of his selection
to the other party within the time, if any fixed by the obligation for
that purpose, or if none is so fixed, before the time at which the
obligation ought to be performed, the right of selection passes to the
other party.

§ 81d. Alternatives distinct.] The party having the right of
selection between alternative acts, must select one of them in its
entirety, and cannot select part of one and part of another, without the
consent of the other party.

328 Obligations. Civil Code.

§ 816. Valid one prevails.] If one of the alternative acts
required by an obligation is such as the law will not enforce, or
becomes unlawful, or impossible of performance^- the obligation is to
be interpreted as though the other stood alone;

TITLE 111,

TRANSFER OF OBLIGATIONS.

§ 817. Beneficiary's consent.] The burden of an obligation may
be transferred, with the consent of the party entitled to ite benefit^
but not otherwise, except as provided by section eight hundred and
twenty-five.

§ 818. By indorsement.] A right arising out of an obligation is the
property of the person to whom it is due, and may be transferred as
sucn.

2. A non-negotiable written contract for the payment of money or
personal property may be transferred by indorsement, in like manner
with negotiable instruments. Such indorsement shall transfer all
the rights of the assignor under the instrument to the assignee, subject
to all equities and defenses existing in favor of the maker at the
time of tne indorsement.

§ 819. Covenants follow land.] Certain covenants, contained in
grants of estates in real property, are appurtenant to such estates, and
pass with them, so as to bind the assigns of the covenantor, and to
vest in the assigns of the covenantee, in the same manner as if they
had personally entered into them. Such covenants are said to mn
with the land.

§ 820. What so run.] The only covenants which run with the land,
are those specified in this title, and those which are incidental thereto.

§821. If it benefits property.] Every covenant contained in a

grant of an estate in real property, which is made for the direct
enefit of the property, or some part of it, then in existence, runs
with the land.

§ 822. Covenants that run with land.] The last section includes
covenants of warranty, for quiet enjoyment, or for further assurance,
on the part of a grantor, and covenants for the payment of rent, or
of taxes, or assessments upon the land, on the pair of a grantee.

§ 823. Limited to certain assigns.] A covenant for the addition
of some new thing to real property, or for the direct benefit of some
part of the property not then m existence or annexed thereto, when
contained in a grant of an estate in such property, and made by
the covenantor expressly for his assigns or to the assigns of the
covenantee, runs with the land so far only as the assigns thus men-
tioned are concerned.

§ 824. Only follows whole estate.] A covenant running with the
land binds those only who acquire the whole estate of the covenanter
in some part of the property.

Civil Cadi. Obligations. 826

§825. Liability while holding.] No one, merely by reason of
having! acquired an estate subject to a covenant running with the
land, is liable for breach of the covenant before he acquired the
estate, or after he has parted with it, or ceased to enjoy its benefits.

§ 826. Burden appoetionbd.] Where several persons, holding by
several titles, are subject to the burden, or entitled to the benefit of a
covenant running with the land, it must be apportioned among them
according to the value of the property subject to it held by them
respectively, if such value can be ascertained, and if not, then uccord-
ing to their respective interests in point of quantity.

TITLE IV-

extinction of obligations.

Ohapteb I.

Performance.

II.

Offer of Performance.

III.

Prevention of Performance or Oflfer

IV.

Accord and Satisfaction.

V.

Novation.

VL

Release^

CHAPTER I.

PERFORMANCE.

§ 827, Extinguishment.] Full performance of an obligation, by
the party whose duty it is to perform it, or by any other person on his
behalf, and with his assent, if accepted by the creditor, extinguishes it.

§ 828. By one for all.] Performance of an obligation, by one of
several persons who are jointly liable under it, extinguishes the liability
of all.

§ 829. To one for all.] An obligation in favor of several persons
is extinguished by performance rendered to any of them, except in the
case of a deposit made by-owners in common, or in joint ownership,
which is regulated by the title on deposit.

§ 880. Particular manner.] If a creditor, or any one of two or
more joint creditors, at any time directs the debtor to perform his
obligation in a particular manner, the obligation is extinguished by
performance in that manner, even though the creditor does not receive
the benefit of such performance.

% 8&1. AooBPTANOB OF PART.] A partial performance of an indivis-
ible obli^tion extinguishes a corresponding proportion thereof, if the
benefit of such performance is voluntarily retained by the creditor,

32R Obligations. -^ <^°^-

§816. Valid one psEVAtLs.! Tf one of th? ' a uature

required by an obligation is such as the law r-' _ ^^ "^ ^'^^

becomes unlawful, or impossible of perforraancf''-/ -'^P'^'^y'

be interpreted as though the other stood alone- ' // .^tion for the

.y or, under several

;;' .rmance, in whole

. '' ore of such obliga-

rpjmT ji .■■■'. ' itiou or desire of the

to the extinction of

TBAN8FEB C ' ^ / <^^^^^^' '^ mUSt be «0

§ 817. Beneficiary's oonsr' - ■ - ' ^e, the creditor, within a
be transferred, with the con? ' -e, may apjply it toward the

but not otherwise, except » -■ance of which was due to him

twenty -five. ■ performance; except that if similar

§ 818. By indorskmb" ■'ott individually and as a trustee, he

property of the persor -^d by the debtor, apply the performance
such. acii obligations in equal proportion; and an

2. A non-negotip' jg by the creditor cannot be rescinded witiiout
personal propert'^ -Jebtor.

with negotiable ^J, makes such amplication within the time pre-
the rights of J'/, performance must be applied to the extinction of
to all equi'' v ''/«*' wIlo^^K order; and, if there be more than one
time of tb ** 'IsrtJ*'*''*'' ^'^^< ^ the extinction of all in that class,

grants lue at the time of the performance.

pass due at that time.

vg^t ition earliest in date of maturity.

hp tion not secured hy a lien or collateral undertaking.

V fl ' i ,- tion secured by a lien or collateral undertaking.

CHAPTER II.

OITFBR OF PBRPORMANCE,

g 884. Of GOHPLBTE PERFOKHANCB.] An Obligation is extinguished
by au offer of performance, made in conformity to the rules herein
prescribed, and with intent. to extinguish the obligation,

g 835. Partial.] An oft'er of partial performance is of no effect.

§ 836. Must bb by debtor.] An offer of performance must be made
by the debtor, or by some pei^on on his behalf and with his assent.

§ 837. To CREDITOR.] An offer of performance must be made to
the creditor, or to any one of two or more joint creditors, or to a per-
son authorized by one or more of them to receive or collect v/hai is
due under the obligation, if such creditor or authorized person is
present at ih& place where the offer may be made; and if not,
wherever the creditor may be found.

Code. Oblk^ations, 981

Plage op pbrfo(rmance.] In the absence of an express pro-
he contrary, an oflfer of performance may be made, at the
^ " debtor:

^^ i;Ce appointed by the creditor; or,

"% ' he person to whom the oflfer ought to be made, can be

9

^ cannot, with reasonable diligence, be found within

^ ^ ithin a reasonable distance from his r^^idence

^ ^ >• if he evades the debtor, then at his residence,

^ ^ ^^ the same can, with reasonable diligence, be

\'».

y
**

4
>*

4 '%'\ . : or,

> ^ A •;. ^ IT , then at any place within this territory.

*:^''-\ -'^^ *„. ablb hours.] Where an obligation fixes a

" ; '% i ' aance, an oflfer of performance must be made at

' ^"^ ^ reasonable hours, and not before, nor afterwards.

.ji NOT sPBciFiED.l Where an obligation dpes not fix the

uS performance, an oflfer of performance may be made at any

oefore the debtor, upon a reasonable demand, has refused to

.rtorm.

§ 841. Delay compbnsatbd — when.] Where delay in performance
i8 capable of exact and entire compensation, and time has not been
expressly declared to be of the essence of the obligation, an oflfer of
performance, accompanied with an offer of such compensation, may be
made at any time after it is due, but without prejudice to any rights
acquired by the creditor, or by any other person in the meantime.

§ 842. Favorable manner — good faith.] An oflfer of performance
must be made in good faith, and in such manner as is most likely,
under the circumstances, to benefit the creditor.

§ 843. Free FROM condition.] An oflfer of performance must be free
from any conditions which the creditor is not bound on his part to
perform.

§ 844. Ability must attend offer.] An oflfer of performance is of
no eflfect, if the person making it is not able and willing to perform
according to the offer.

§ 845. Production only if accepted.] The thing to be delivered, if
any, need not in any case be actually produced upon an offer of
performance, unless the offer is accepted.

§ 846. Thing offered distinct.] A thing, when offered by way of
performance, must not be mixed with other things from which it
cannot be separated immediately and without diflBcmty.

§ 847. Contingent offer.] When a debtor is entitled to the perform-
ance of a condition precedent to, or concurrent with, performance on
his part, he may make his offer to depend upon the due performance of
suoh condition.

§ 848. Receipt obligatory.] A debtor has a right to require from
his creditor a written receipt for any property delivered in perform-
£uice of his obligation.

§849. Deposit of tender.] An obligation for the payment of
money is extinguished by a due offer of payment, if the amount is im-
mediately deposited in the name of the creditor, with some bank of
deposit withioQ this territory, of good repute, and notice thereof is
given to the creditor.

392 Obligations. Civil Code.

§ 850. Objections waived.] All objections to the mode of an offer
of performance, which the creditor has an opportunity to state at the
time to the person making the oflfer, and which could be then obviated
by him, are waived by the creditor, if not then steted.

§ 851. Profyebed title passes.] The title to a thing duly offered
in performance of an obligation passes to the creditor, if the debtor at
the time signifies his intention to that effect.

§ 852. Deposit of thing offered.] The person offering a thing,
other than money, by way of performance, must, if he means to treat
it as belonging to the creditor, retain it as a depositary for hire, until
the creditor accepts it, or until he has given reasonable notice to the
creditor that he will retain it no longer, and, if with reasonable
diligence, he can find a suitable depositary therefor, until he has
deposited it with such person.

1 853. Due offer stops interest.] An offer of payment or other
performance, duly made, though the title to the thin^ offered be not
transferred to the creditor, stops the running of interest on the
obligation, and has the same effect upon all its incidents as a
performance thereof

§ 854. Bailee of non- accepted offer.] If anything is given to a
creditor by way of performance, which he refuses to accept as such,
he is not bound to return it without demand; but if he retains it, he
is gratuitous depositary thereof.

CHAPTER III.

prevention of performance or offer.

§ 855. Excuses defined and limited.] The want of performance
of an obligation, or of an offer of performance, in whole or in part, or
any delay therein, is excused by the following causes, to the extent to
which they operate:

1. When such performance or offer is prevented or delayed by the
act of the creditor, or by the operation of law, even though there may
have been a stipulation that this shall not be an excuse.

2. When it is prevented or delayed by an irresistible superhuman
cause, or by the act of public enemies of this territory, or of the
United States, unless the parties have expressly agreed to the
contrary; or,

3. When the debtor is induced not to make it, by any act of the
creditor intended or naturally tending to have that effect, done at or
before the time at which such performance or offer may be made, and
not rescinded before that time.

§ 856. Prevented bt creditor.] If the performance of an obliga-
tion be prevented by the creditor, the debtor is entitled to all the
benefits which he would have obtained if it had been performed by
both parties.

§ 857. Ratable part of consideration.] If performance of an
obligation is prevented by any cause excusing performance, other
than the act of the creditor, the debtor is entitled to a ratable

Civil CodA. Oblioations. 338

proportion of the consideration to which he would have been entitled
upon foil performance according to the benefit which the creditor
receives from the actual performance.

§ 858. Refusal bktore offer.] A refusal b}r a creditor to accept
performance, made before an offer thereof, is equivalent to an offer
and refusal, unless, before performance is actually due, he gives notice
to the debtor of his willingness to accept it.

CHAPTER lY.

ACCORD AND SATISFACmON.

§ 859. Definition.] An accord is an agreement to accept, in
extinction of an obligation, something different from or less than that
to which the person agreeing to accept is entitled.

§ 860. Obligation abides.] Though the parties to an accord are
bound to execute it, yet it does not extinguish the obligation until it
is fully executed.

§ 861. Accord extinouishes obligation — when.] Acceptance, by
the creditor, of the consideration of an accord, extinguishes the obli-
gation, and is called satisfaction.

§ 862. Part performance accepted.] Part performance of an obli-
gation, either before or after a breach thereof, when exi)ressly accepted
by the creditor in writing in satisfaction, or rendered in pursuance of
an a^eement in writing for that purpose, though without any new
consideration, extinguishes the obligation.

CHAPTER V.

novation.

§ 868. Definition.] Novation is the substitution of a new obliga-
tion for an existing one.
§ 864. Classes of substitution.] Novation is made:

1. By the substitution of a new obligation between the same parties,
with intent to extinguish the old obligation.

2. By the substitution of a new debtor in place of the old one, with
intent to release the latter; or,

S. By the substitution of a new creditor in place of the old one, with
intent to transfer the rights of the latter to the former.

§ 865. Under rules of contract.] Novation is made by contract,
and is subject to all the rules conceminff contracts in general.

§ 866. Kesoindino acceptance.] When the obligation of a third
person, or an order upon such person, is accepted in satisfaction, the
creditor may rescind such acceptance, if the debtor prevents such per-

384 Obligations. Ctpil Code.

son from complying with the order, or from fulfilling the obligation;
or if, at the time the obligation or order is received, such person is
insolvent, and this fact is unknown to the creditor; or if, before the
creditor can with reasonable diligence present the order to the person
upon whom it is given, he becomes insolvent.

CHAPTER YL

RELEA6B.

§ 867. Extinguishes obligation.1 An obligation is extinguished
by a release therefrom given to the debtor by the creditor, upon a new
consideration, or in writing, with or without new consideration.

§ 868. Only known claims.] A general release does not extend to
claims which the creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.

§ 869. Joint debtors' duties.] A release of one of two or more
joint debtors does not extinguish the obligations of any of the others,
unless they are mere guarantors; nor does it affect their right to con-
tribution from him.

j

Ciml Code. CoNTRAtJTs. 385

PART II.

Contracts.

Title I. Nature of a Contract.

n. Manner of Creating Contracts.

III. Interpretation of Contracts.

IV. Unlawful Contracts.

V. Extinction of Contracts.

TITLE L

NATURE OP CONTRACT.

Chapter I. Definition.

11. Parties.

III. Consent.

IV. Object.

V. Consideration.

CHAPTER I.

DBWNITION.

§ 870. Dbvinftion.] A contract is an agreement to do or not to do
a certain thing. *

§ 871. Requisites of.] It is essential to the existence of a ccmtract
that there should be:

1. Parties capable of contracting.

2. Their consent.

3. A lawful object; and,

4. Sufficient cause or consideration.

38ft Contracts. Ciml Code.

CHAPTER II.

PARTIES.

§ 872. Who may oonteactJ All persons are capable of contract-
ing, except minors, persons of unsound mind, and persons deprived of
civil rights.

§ 873. Capacity op certain classes.] Minors and persons of
unsound mind, have only such capacity as is defined by part one of
the first division of this code.

§ 874. Identity of parties.] It is essential to the validity *of the
contract, not only that the parties should exist, but that it should be
possible to identify them.

§ 875. Beneficiary may enforce.] A. contract made expressly for
the benefit of a third person, may be enforced by him at any time
before the parties thereto rescind it.

CHAPTER III.

CONSENT.

§ 876. QijALiTiES OF CONSENT.) The consent of the parties to a
contract must be:

1. Free. ^ ^

2. Mutual; and,

3. Communicated by each to the other.

§ 877. If not free, rescinded.] A consent which is not free, is
nevertheless not absolutely void, but may hoi rescinded by the parties
in the manner prescribed by the chapter on rescission.

§ 878. Conditions limiting freedom.] An apparent consent is nob
real or free when obtained through:

1. Duress.

2. Menace.

3. Fraud.

4. Undue influence; or,

5. Mistake.

§ 879. Construction.] Consent is deemed to have been obtained
through one of the causes mentioned in the last section, only when it
would not have been given had such cause not existed.
880. Kinds of duress.] Duress consists in:
Unlawful confinement of the person of the party, or of husbaiid
or wife of such party, or of an ancestor, descendant, or adopted ohild
of 8U€^ pstrty, hasband or wife.

2. Unlawful detention of the property of any such person; or,

3. Confinement of such person, lawful in form, but fraudulently
obtained, or fraudulently made unjustly harassing or oppressive.

§ 881. Forms of menace.] Menace consists in a threat:
1. Of such duress as is specified in the first and< third ^nbdivifiiena of
the last section.

Civil Code. Contbacts. 337

2. Of unlawful and violent injury to the person or property of any
such person as is specified in the last section; or,

3. Of injury to the character of any such person.

§ 882. Kinds of fraud.] Fraud is either actual or constructive.

I 883. Actual fraud defined.] Actual fraud, within the meaning
of this chapter, consists in any of the following acts, committed by a
party to the contract, or with his connivance, with intent to deceive
another party thereto, or to induce him to enter into the contract:

1. The suggestion, as a fact, of that which is not true, by one who
does not believe it to' be true.

2. The positive assertion, in a manner not warranted by the inform-
ation of the person making it, of that which is not true, though he
believes it to be true.

3. The suppression of that which is true,, by one having knowledge
or belief of the fact.

4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.

§ 884. Constructive.] Constructive fraud consists:

1. In any breach of duty which, without an actually fraudulent in-
tent, gains an advantage to the person in fault, or any one claiming
under him, by misleading another to his prejudice, or to the prejudice
of any one claiming under him ; or,

2. In any such act or omission as the law specially declares to be
fraudulent, without respect to actual fraud.

§ 885. Question of fact.] Actual fraud is always a question of fact.
§ 886. Kinds of undue influence.] Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or
who holds a real or apparent authority over him, of such confidence
or authority, for the purpose of obtaining an unfair advantage over him.

2. In taking an unfair advantage of another's weakness of mind; or,

3. In taking a grossly oppressive and unfair advantage of another's
necessities or distress.

§ 887. Mistake divided.] Mistake may be either of fact or of law.

§ 888. Must not be illegal.] Mistake of fact is a mistake not caused
by the neglect of a legal duty on the part of the person making the
mistake, and consisting in:

1 . An unconscious ignorance or forgetfulness of a fact past or pres-
ent, material to the contract; or,

2. Belief in the present existence of a thing material to the contract,
which does not exist, or in the past existence of such a thing, which
has not existed.

§ 889. Mistake of law.] Mistakes of law constitute a mistake within
the meaning of this article only when it arises from :

1. A misapprehension of the law by' all parties, all supposing that
they knew and understood it, and all making substantially the same
mistake as to the law ; or,

2. A misapprehension of the law by one party, of which the others
are aware at the time of contracting, but which, they do not rectify.

§ 890. Of foreign laws.] Mistake of foreign laws is a mistake
of fact.

§ 891. Mutual consent defined.] Consent is not mutual unless the
parties all agree upon the same thing in the same sense. But in cer-

S2

3S8 Contracts. Ciml Code.

t

tain cases, defined by the chapter on interpretation, they are to be
deemed so to agree, without regard to the fact.

§ 892. How COMMUNICATED.] Consont can be communicated with
effect, only by some act or omission of the party contracting, by which
he intends to communicate it, or which necessarily tends to such com-
munication.

§ 893. Special mode or condition.] If a proposal prescribes any
conditions concerning the communication of its acceptance, the
proposer is not bound unless they are conformed to; but in other
cases any reasonable and usual mode may be adopted.

§ 894. Transmissions begun in full.] Consent is deemed to be
fully communicated between the ijarties as soon as the party accepting
a proposal has put hi^ acceptance in the course of transmission to the
proposer, in conformity to the last section.

§ 895. Acts which are in acceptance.] Performance of the con-
ditions of a proposal, or the acceptance of the consideration offered
with a proposal, is an acceptance of the proposal.

§ 896. Must be absolute.] An acceptance must be absolute and
unqualified,- or must include in itself an acceptance of that character,
which the proposer can separate from the rest, and which will include
the person accepting. A qualified acceptance is a new proposal.

§ 897. Revocation of proposal.] A proposal may be revoked at any
time before its acceptance is communicated to the proposer, but not
afterwards.

§ 898. Revocations classed.] A proposal is revoked:

1 . By the communication of notice of revocation by the proposer to
the other party, in the manner prescribed by sections eight hundred
and ninety two and eight hundred and ninety four, before his accept-
ance has been communicated to the former.

2. By the lapse of the time prescribed in such proposal for its accept-
ance, or, if no time is so prescribed, the lapse of a reasonable time
without communication of the acceptance.

3. By the failure of the acceptor to fulfill a condition precedent to
acceptance; or,

4. J3y the death or insanity of the proposer.

§ 899. Subsequent consent.] A contract which is voidable solely
for want of due consent, may be ratified by a subsequent consent.

§ 900. Benefits include obligations.] A voluntary acceptance of
the benefit of a transaction is equivalent to a consent to all the
obligations arising from it, so far as the facts are known, or ought to
be known to the person accepting.

CHAPTER lY.

. OBJECT OP A CONTRACT.

§ 901. Definition.] The object of a contract is the thin^ which it
is agreed, on the part of the party receiving the consideration, to do

/%%• ■*» r\4- 4-r\ rir\.

or not to do.

Cml Code. Contracts. 3S9

§ 902. Requisites of objbct.1 The object of a contract must be
lawful when the contract is maae, and possible and ascertainable by
the time the contract is to be performed.

§ 903. Impossibility defined.] Everything is deemed possible except
that which is impossible in the nature of things.

§ 904. Single unlawfitl object void.1 Where a contract has but
a single object, and such object is unlawiul, whether in whole or in
part, or wholly impossible of performance, or so vaguely expressed as
to be wholly unascertainable, the entire contract is void.

§ 905. Lawful part valid.] Where a contract has several distinct
objects, of which one at least is lawful, and one at least is unlawful, in
whole or in part, the contract is void as to the latter, and valid as to
the rest.

CHAPTER V.

consideration.

§ 906. Good oonsideeation defined.J Any benefit conferred, or
aCTeed to be conferred, upon the promiser, by any other person, to
which the promiser is not lawfully entitled, or any prejudice suffered
or agreed to be suffered by such person, other than such as he is at the
time of consent lawfully bound to suffer, as an inducement to the
promiser, is a good consideration for a promise.

§ 907. Moral or legal — how far good.] An existing legal obliga-
tion resting upon the promiser, or a moral obligation, originating in
some benefit conferred upon the promiser, or prejudice suffered by the
promisee, is also a good consideration for a promise, to an extent
corresponding with the extent of the obligation, but no further or
otherwise.

§ 908. Lawful defined.] The consideration of a contract must be
lawful within the meaning of section nine hundred and fifty-three.

§ 909. Effect of illegality.] If any part of a single consideration
for one or more objects, or oi several considerations for a single
object, is unlawful, the entire contract is void.

I 910. Executed or executory consideration.] A consideration
may be executed or executory, in whole or in part. In so far as it is
executory, it is subject to the provisions of chapter IV of this title.

§ 911. Executory — how determined.] When a consideration is
executory, it is not indespensible that the contract should specify its
amount or the means of ascertaining it. It may be left to the decision
of a third person, or regulated by any specific standard.

§ 912. IdEASURE OF VALUE.] W hou a contract tioes not determine
the amount of the consideration, nor the method by which it is to be
ascertained, or when it leaves the amount thereof to the descretion of
an interested party, the consideration must be so much money as
the object of the contract is reasonably worth.

§ 913. Exclusive impossibility void.] Where a contract provides
an exclusive method by which its consideration is to be ascertained,
which method is on its face impossible of execution, the entire con-
tract is void.

340 Ck>NTRACTS. Civil Code.

§914. Same — presumption — burden.] 1. Where a contract pro-
viaes an exclusive method by which its consideration is to be ascer-
tained, which method appears possible on its face, but in fact is, or
becomes, impossible of execution, such provision only is void.

2. A written instrument is presumptive evidence of a consideration.

3. The burden of showing a want of consideration sufficient to
support an instrument lies with the party seeking to invalidate or
avoid it.

TITLE IL

MANNER OF CREATING CONTRACTS.

§ 915. Express or implied.] A contract is either express or implied.

§ 916. Express defined.] An express contract is one, the terms of
which are stated in words.

§ 917. Implied.] An implied contract is one, the existence and
terms of which are manifested bv conduct.

§ 918. What may be oral.] All contracts may be oral, except such
as are specially required by statute to be in writing.

§ 919. May be enforced again'st fraud.] Where a contract, which
is rejiuired by law to be in writing, is prevented from being put into
writing by the fraud of a party hereto, any other party who is by
such fraud led to believe that it is in writing, and acts upon such belief
to his prejudice, may enforce it against the fraudulent party.

§ 920. Contracts which must be written.] The following con-
tracts are invalid, unless the same, or some note or memorandum
thereof, be in writing and subscribed by the party to be charged, or
by his agent:

1. An agreement that, by its terms, is not to be performed within a
year from the making thereof.

2. A special promise to answer for the debt, default, or miscarriage
of another, except in the cases provided for in section one thousand
six hundred and fifty-three of this code.

3. An agreement made upon consideration of marriage, other than
a mutual promise to marry.

4. An agreement for the sale of goods, chattels, or things in action,
at a price not less than fifty dollars, unless the buyer accept or
receive part of such goods and chattels, or the evidences, or some
of them, of such things in action, or pay at the time some part of the
purchase money; but when a sale is made by auction, an entry by the
auctioneer in his sale book, at the time of the sale, of the kind of
property sold, the terms of sale, the jprice, and the names of the
purchaser and person on whose account the sale was made, is a suflBcient
memorandum.

5. An agreement for the leasing for a longer period than one
year, or for the sale of real property, or of an interest therein; and
such agreement, if made by an agent of the party sought to be

Civil Code. Contracts. 341

charged is valid unless the authority of the agent be in writing, sub-
scril^d by the party sought to be charged.

§ 921. Writing excludes oral.] The execution of a contract in
writing, whether the law requires it to be written or not, surpersedes
all the oral negotiations or stipulations concerning its matter, which
preceded or accompanied the execution of the instrument.

§ 922. EFFECT ON delivery.] a contract in writing takes eflFect
upon its delivery to the party in whose favor it is made, or to his
agent-

§ 923. Apply to all contracts.] The provisions of the chapter on
transfers in general, concerning the delivery of grants, absolute and
conditional, apply to all written contracts.

§ 924. How SEAL AFFIXED.] A Corporate or oflScial seal may be
affixed to an instrument by a mere impression upon the paper or other
material on which such instrument is written.

§ 925. Sealed and unsealed alike.] All distinctions between
sealed and unsealed instruments are abolished.

TITLE III.

interpretation of contracts.

§ 926. Same rules for public or private.] All contracts, whether
public or private, are to be interpreted by the same rules, except as
otherwise provided by this code.

§ 927. Effect to lys given.] A contract must be so interpreted as
to give effect to the mutual intention of the parties, as it existed at
the time of contracting, so far as the same is ascertainable and lawful.

§ 928. Intention ascertained.] For the purpose of ascertaining
the intention of the parties to a contract, if otherwise doubtful, the
rules given in this chapter are to be applied.

§ 929. Language governs.] The language of a contract is to
ffovem its interpretation, if the language is clear and explicit, and
does not involve an absurdity.

1 930. From writing if possible.] When a contract is reduced to
writing, the intention of the parties is to be ascertained from the
writing alone, if possible, subject, however, to the other pro^dsions
of this title.

§ 981. Error only disregarded.] When through fraud, mistake,
or accident, a written contract fails to express the real intention of the
parties, such intention is to be regarded, and the erroneous parts of
the writing disregarded.

§ 982. Effect to every part.

The whole of a contract is to be

taken together, so as to give effect to every part, if reasonably practi-
cable, each clause helping to interpret the otners.

§ 933. Several contracts, together.] Several contracts relating
to the same matters, between the same parties, and made as parts of
substantially one transaction, are to be taken together.

342 CoNTEAOTS. Civil Code.

§ 934. Interpretation favors validity.] A contract must receive
such an interDretation ae will make it lawful, oj)erative, definite,
reasonable, ana capable of being carried into effect, if it can be done
without violating the intention of the parties.

§ 935. Words in usual sense, unlbss.I The words of a contract
are to be understood in their ordinary ana popular sense, rather than
according to their strict legal meaning, unless used by the parties in
a technical sense, or unless a special meaning is given to them by
usage, in which case the latter must be followed.

§ 936. Technical words.] Technical words are to be interpreted
as usually understood by persons in the profession or business to which
they relate, unless clearly used in a different sense.

§ 937. Law of place.] A contract is to be interpreted according to
the law and usage of the place where it is to be performed, or, if it does
not indicate a place of performance, according to the law and usage
of the place where it is made.

§ 938. Circumstances explain.] A contract may be explained by
reference to the circumstances under which it was made, and the
matter to which it relates.

§ 939. Restricted to intention.] However broad may be the
terms of a contract, it extends only to those things concerning which
it appears that the parties intended to contract.

§ 940. Sense of belief given.] If the terms of a promise are in
any respect ambiguous or uncertain, it must be interpreted in the
sense in which the promiser believed, at the time of making it, that
the promisee understood it.

§ 941. Part subordinate to whole.] Particular clauses of a con-
tract are subordinate to its general intent.

§ 942. Written and original parts control.] Where a contract is
partly written and partly printed, or where part of it is written or
printed under the special directions of the parlSes, and with a special
view to their intention, and the remainder is copied from a form
originally prepared without special reference to the particular parties
ana particular contract in question, the written parts control the
printed parts, and the parts which are purely original, control those
which are copied from a form. And if the two are absolutely repug-
nant, the latter must be so far disregarded.

§ 943. Repugnance — how reconciled.] Bepugnancjp' in a contract
must be reconciled, if possible, by such an interpretation as will give
some effect to the repugnant clause, subordinate to the general intent
and purposes of the whole contract,

§ 944. Inconsistent words rejected.] Words in a contract which
are wholly inconsistent with ite nature, or with the main intention of
the narties, are to be rejected.

§ 945. Against party causing uncertainty,] In cases of uncer-
tainty not removed by the preceding rules, the language of a contract
should be interpreted most strongly against the party who caused the
uncertainty to exist. The promiser is presumed to be such party,
except in a contract between a public officer, or body, as such, and a
private party, in which it is presumed that all uncertainty was caused
by the private party.

Civil Code. Contracts. 34S

§ 946. Reasonable stipulations implied.] Stipulations which are
necessary to make a contract reasonable, or conformable to usage, are
implied in respect to matters concerning which the contract manifests
no contrary intention.

§ 947. Necessary incidents implied.] All things that in law, or
usage, are considered as incidental to a contract, or as necessary to
carry it into effect, are implied therefrom, unless some of them are
expressly mentioned therein, when all other things of the same class
are deemed to be excluded.

§ 948. No time, reasonable time.] If no time is specified for the
performance of an act required to be performed, a reasonable time is
allowed. If the act is in its nature capable of being done instantly,
as, for example, if it consists in the payment of money only, it must
be performed immediately upon the thing to be done being exactly
ascertained.

§ 949. When time is essence.] Time is never considered as of the
essence of a contract, unless by its terms expressly so provided.

§ 950. Promise joint and several.] Where all the parties who unite
in a promise receive some benefit from the consideration, whether past
or present, their promise is presumed to be joint and several.

§ 951. Singular number.] A promise, made in the singular number,
but executed by several persons, is presumed to be joint and several.

§ 952. Executed — defined.] An executed contract is one, the
object of which is fully performed. All others are executory.

TITLE IV.

unlawful contracts.

§ 953. What is unlawful.] That is not lawful which is:

1. Contrary to an express provision of law.

2. Contrary to the policy of express law, though not expressly pro-
hibited; or,

3. Otherwise contrary to good morals.

§ 954. Certain contracts unlawful.) All contracts which have
for their object, directly or indirectlv, to exempt any one from respon-
sdbility for his own fraud, or willful injury to the person or property of
another, or violation of law, whether willful or negligent, are against
the policy of the law.

§ 955. Penalties void.] Penalties imposed by contract for any
non-performance thereof, are void. But this section does not render
void such bonds or obligations, penal in form, as have heretofore been
commonly used; it merely rejects and avoids the penal clauses.

§ 956. Fixing damages void.] Every contract, by which the amount
of damages to be paid, or other compensation to be made, for a breach
of an obligation, is determined in anticipation thereof, is to that
extent void, except as expressly provided by the next section.

344 Contracts, Civil Code.

§ 957. Exception.] The parties to a contract may agree therein
upon an amount which shall be presumed to be the amount of damage
sustained by a breach thereof, when, from the nature of the case* it
would be impracticable or extremely diflBcult to fix the actual damage.

§ 958. Restraints on legal prooeedingub.] Every stipulation or con-
dition in a contract, by which any party thereto is restricted from
enforcing his rights under the contract, by the usual legal proceedings
in the ordinary tribunals, or which limits the time within which he
may thus enforce his rights, is void. .

§ 959. Same op employment.] Every contract by which any one is
restrained from exercising a lawful profession, trade, or business of
any kind, otherwise than as provided by the next two sections, is to
that extent void.

§ 960. Exception of good will.] One who sells the good will of a
business may aeree with the buyer to refrain from carrying on a simi-
lar business wittiin a specified county, city, or a part thereof, so long
as the buyer, or any person deriving title to the good will from him,
carries on a like business therein.

§ 961. Partners — same.] Partners may, upon or in anticipation of
a dissolution of the partnership, agree that none of them will carry
on a similar business within the same city or town where the partner-
ship business has been transacted, or within a specified part thereof.

§ 962. Restraint of marriage.] Every contract in restraint of the
marriage of any person, other than a minor, is void.

TITLE V.

extinction op contracts.

Chapter I. Contracts, how Extinguished.
II. Rescission.
III. Alteration and Cancellation.

CHAPTER I.
contracts— how extinguished.

§ 963. Manner.] A contract may be extinguished in like manner
with any other obligation, and also in the manner prescribed by this
title.

CHAPTER II.

rescission.

§ 964. Rescission extinguishes.] A contract is extinguished by
its rescission.

§ 965. Cases when party may rescind.] A party to a contract may
rescind the same in the following cases only:

Ciml Code. Coni^iaots. 345

1. If the consent of the party rescinding, or of any party jointly
contracting with him, was given by mistake, or obtamed throueh
duress, menace, fraud, or undue influence, exercised by or with the
connivance of the party as to whom he rescinds, or of any other party to
the contract jointly interested with such party.

2. If tl\rotigh the fault of the party as to whom he rescinds, the
consideration for his obligation fails, in whole or in part.

3. If such consideration becomes entirely void from any cause.

4. If such consideration, before it is rendered to him, fails in a
material respect, from any cause; or,

5. By consent of all the other parties.

§ 966. Rescission allowed in essential mistake.] A stipulation
' that errors of description shall not avoid a contract, or shall be the
subject of compensation, or both, does not take away the right of
rescission for fraud, nor for mistake, where such mistake is in a mat-
.ter essential to the inducement of the contract, and is not capable
of exact and entire compensation.

§ 967. Rescission, how and when.] Rescission, when not effected
by consent, can be accomplished only by the use, on the part of the
party rescinding, of reasonable diligence to comply with the following
rules:

1. He must rescind promptly, upon discovering the facts which
entitle him to rescind, if he is free from duress, menace, undue influ-
ence, or disability, and is aware of his right to rescind; and,

2. He must restore to the other party every thing of value which he
has received from him under the contract; or must offer to restore the
same, upon condition that such party shall do likewise, unless the
latter is unable, or positively refuses to do so.

CHAPTER HI.
alteration and cancellation.

§ 968. Writing extinguishes oral.] A contract not in writing
may be altered in any respect by consent of the parties, in writing,
¥?ithout a new consideration, and is extinguished thereby to the extent
of the new alteration.

§ 969. How writing altered.] A contract in writing may be
altered by a contract in writing, or by an executed oral agreement,
and not otherwise.

§ 970. Destruction by consent.] The destruction or cancellation
of a written contract, or of the signature of the parties liable thereon,
with intent to extinguish the obligation thereot, extinguishes it as to
all the parties consenting to the act.

§ 971. By alteration -effect.] The intentional destruction, can-
cellation or material alteration of a written contract, by a party
entitled to any benefit under it, or with his consent, extinguishes all
the executory obligations of the contract in his favor, against parties
who do not consent to the act.

§ 972. Of duplicate — ^not affect.] Where a contract is executed
in duplicate, an alteration or destruction of one copy, while the other
exists, is not within the provisions of the last section.

846 Oblioations. Civil Code.

Obligations Imposed by La^^.

§ 973. Abstinence from injury.] Every person is bound, without
contract, to abstain from injuring the person or property of another,
or infringing upon any of his rights.

§ 974. Damages for deceit.] One who willfully deceives another,
with intent to induce him to alter his position to his injury or risk, is
liable for any damage which he thereby suffers.

§ 975. Deceits classed.] A deceit, within the meaning of the last
section, is either:

1. The suggestion as a fact, of that which is not true, by one who
does not believe it to be true.

2. The assertion, as a fact, of that which is not true, by one who has
no reasonable ground for believing it to be true.

3. The suppression of a fact, by one who is bound to disclose it, or
who gives information of other facts which are likely to mislead for
want of communication of that fact; or,

4. A promise, made without any intention of performing it.

§ 976. Upon the public] One who practices a deceit with intent to
defraud the public, or a particular class of persons, is deemed to have
intended to defraud every individual in that class, who is actually
misled by the deceit.

§ 977. Restoration.] One who obtains a thing without the consent
of its owner, or by a consent afterwards rescinded, or by an unlawful
exaction which the owner could not at the time prudently refuse, must
restore it to the person from whom it was thus ootained, unless he has
acquired a title tnereto superior to that of such other person, or unless
the transaction was corrupt and unlawful on both sides.

§ 978. Voluntary, when demand.] The restoration required by the
last section must be made without demand; except where a thing is
obtained by mutual mistake, in which case the partv obtaining the
thing is not bound to return it until he has notice of the mistake.

§ 979. Willful acts — negligence.] Every one is responsible, not
only for the result of his willful acts, but also for an injury occasioned
to another by his want of ordinary care or skill in the management of
his property or person, except so far as the latter has, willfully or by
want of ordinary care, brought the injury upon himself. The extent of
liability in such cases is dehned by the title on compensatory relief.

§ 980. Other obligations.] Other obligations are prescribed by the
first and second divisions of this code.

Civil Code. Sale. 847

Obligations Arising From Particular Transactions,

Title I. Sale.

n. Exchange.

III. Deposit.

IV. Loan.
V. Hiring.

VI. Service.

VII. Carriage.

Vm. Trust.

IX. Agency.

X. Partnership.

XI. Insurance.

XII. Indemnity.

XIII. Guaranty.

XIV. Lien.

XV. Negotiable Instruments.

XVI. General Provisions.

TITLE I.

SALE.

Chapter I. General Provisions.

n. Rights and Obligations of the Seller.

m. Rights and Obligations of the Buyer.

IV. Sale by Auction.

CHAPTER I.

OBNERAL PROVI8IOK8.

Abtiolb I. Sale.

II. Agreements for Sale,
in. Form of the Contract

348 Sale. Civil Code.

Article I. — Sale.

§ 981. Sale defined.] Sale is a contract by which, for a pecuniary
consideration, called a pried, one transfers to another an interest in
property.

§ 982. SufejEJcT OF SALE.] The subject of sale must be property, the
title to which can be immediately transferred from the seller to the
buyer.

Article II.— Agreements for Sale.

§ 983. Classes of same.] An agreement for sale is either:

1. An agreement to sell.

2. An agreement to buy; or,

3. A mutual agreement to sell and buy.

§ 984. To SELL DEFINED.] Au agreement to sell is a contract by
which one engages, for a price, to transfer to another the title to a
certain thing.

§ 985. To BUY.] An agreement to buy is a contract by which one
engages to accept from another and pay a price for the title to a
certain thing.

§ 986. To SELL AND BUY.] An agreement to sell and buy is a
contract by which one engages to transfer the title to a certain thing
to another, who engages to accept the same from him, and to pay a
price therefor.

§ 987. What subject of contract.] Any property which, if in
existence, might be the subject of sale, may be the subject of an
agreement for a sale, whether in existence or jiot.

§ 988. Sale of realty.] An agreement to sell real property binds
the seller to execute a conveyance in form sufficient to pass the title
to the property.

§ 989. u suAL COVENANTS.] An agreement on the part of a seller of
real property to give the usual covenants, binds him to insert in the
grant, covenants of seizin, quiet enjoyment, further assurance, general
warranty, and against incumbrances.

§ 990. Substance thereof.] The covenants mentioned in the last
section must be in substance as follows:

The party of the first part covenants with the party of the second part that the former is now
seized in fee simple of the proi)ert v granted ; that the latter shall enjoy the same without any
lawful disturbance; that the same is free from all incumbrances; that the party of the first part,
and all persons ac(|uiring any interest in the same through or for him, will, on demand, execute
and deliver to the party of the second part, at the expense of the latter, any further assurance of
the same that may be' reasonably required; and that the party of the first part will warrant to
the party of the second part all *the said property against every person lawfully claiming the
same.

Article III.— Form of the Contract.

S 991. Statute of frauds personal.] No sale of personal prop-
tnty, or agreement to buy or sell it for a price of fifty dollars or more,
is valid unless:

1. The agreement or some note or a memorandum thereof be in
writing, and subscribed by the party to be charged, or by his agent; or,

2. The buyer accepts and receives part of the things sold, or when it
consits of a thing in action, part of the evidences thereof, or some of
them ; or.

^-•Z.

Ciml Code. Sale. 349

3. The buyer, at the time of sale, pays a part of the price.

§ 992. Contract to manufacture.] An affreement to manufacture
a thing from materials furnished by the manufacturer or by
another person, is not within the provisions of the last section.

§ 993. CojcTRACT FOR SALE OF REAL PROPERTY.] No agreement for
the sale of real property, or of an interest therein, is valid unless the
same, or some note or memorandum thereof, be in writing, and sub-
scribed by the party to be charged, or his agent thereunto authorized,
in writing, but this does not abridge the power of any court to compel
the specific performance of any agreement for the sale of real prop-
erty in case of part performance tnereof.

f 994. Form of transfer.] The form of a transfer of real property
is described by the chapter on such transfers.

CHAPTER II.

RIGHTS AND OBLIGATIONS OF THE SELLER.

Article L Rights, and Duties Before Delivery.
II. Delivery.
III. Warranty.

Article I. — Rights and Duties Before Delivery.

§ 995. Seller acts as depositary.] After personal property has
been sold, and until the delivery is completed, the seller has the rights
and obligations of a depositary for hire, except that he must keep the
property, without charge, until the buyer has had a reasonable oppor-
tunity to remove it.

§ 996. Seller may resell.] If a buyer of personal property does
not pay for it according to contract, and it remains in the possession of
the seller, after payment is due, the seller may rescind the sale, or may
enforce his lien for the price in the manner prescribed by the title on
liens.

Article II. — Delivery.

§ 997. Delivery on demand.] One who sells personal property,
whether it was in his possession at the time of sale or not, must put
it into a condition fit tor delivery, and deliver it to the buyer within a
reasonable time after demand, unless he has a lien thereon.

§ 998. Delivery where.] Personal property sold is deliverable at
the place where it is at the time of the sale or agreement to sell, or, if it
is not then in existence, it is deliverable at the place where it is
produced.

§ 999. Expense of transportation.] One who sells personal prop-
erfy must bring it to his own door, or other convenient place, for its

350 Sale. Ciml Code.

acceptance by the buyer, but further transportation is at the risk
and expense of the buyer.

§ 1000. Notice of option— waived.J When either party to a con-
tract of sale has an option as to the time^ place, or manner of delivery,
he must give the other party reasonable notice of his choice; and if
he does not give such notice within a reasonable time, his right of
option is waived.

§ 1001. Buybe's directions govebn sending.] If a seller agrees to
send the thing sold to the buyer, he must follow the directions of the
latter as to the manner of sending, or it will be at his own risk during
its transportation. If he follows such directions, or if, in the absence
of special directions, he uses ordinary care in forwarding the thing, it
is at the risk of the buyer.

§ 1002. Reasonable hours.] The delivery of a thing sold can be
offered, or demanded, only witnin reasonable hours of the day.

Article III. — Warranty.

§ 1008. Definition.] A warranty is an engagement by which a
seller assures to a buyer the existence of some met affecting the trans-
action, whether past, present, or future.

§ 1004. Not implied by mere sale.] Except as prescribed by this
article, a mere contract of sale, or agreement to sell, does not imply a
warranty.

§ 1005. Warranty op title to personalty.] One who sells, or acrees
to sell personal property, as his own, thereby warrants that he has a
good and unincumbered title thereto.

§ 1006. Of quality by sample.] One who sells, or agrees to sell,
goods by sample, thereby warrants the bulk to be equal to the sample.

§ 1007. Seller knows buyer relies, &c.1 One who sells, or agrees
to sell, personal property, knowing that the buyer relies upon his
advice or judgment^ thereby warrants to the buyer that neither the
seller, nor any agent employed by him in the transaction, knows the
existence of any fact concerning the thing sold which would, to his
knowledge, destroy the buyer's inducement to buy.

§ 1008. Merohandise not in existbnoe.] One who agrees to sell
merchandise not then in existence, thereby warrants that it shall be
sound and merchantable at the place of production contemplated by
the parties and as nearly so, at the place ot delivery, as can be secured
by reasonable care.

§ 1009. Against latent defects.! One who sells, or agrees to sell,
an article of his own manufacture, tnereby warrants it to oe free from
any latent defect, not disclosed to the buyer, arising from the process
of manufacture, and also that neither he nor his agent in such manu-
facture has knowingly used imnroper materials therein.

§ 1010. Fit for purpose.] One who manufactures an article under
an order for a particular purpose, warrants by the sale that it is reas-
onably fit for tnat purpose.

§ 1011. Inaccessible merchandise.] One who sells, or agrees to
sell, merchandise inaccessible to the examination of the buyer, thereby
warrants that it is sound and merchantable.

(Hml Code. Salb. 351

§ 1012. Trade mark genuine.! One who sells or agrees to sell any
article to which there is affixea or attached a trade mark, thereby
warrants that mark to be genuine, and lawfully used.

§ 1013. Marks of quality.] One who sells or agrees to sell any
article to which there is affixed or attached a statement or mark to
express the quantity or quality thereof, or the place where it was in
whole or in part produced, manufactured, or prepared, thereby
warrants the truth tnereof.

§ 1014. Validity op instrument.] One who sells or agrees to sell an
instrument purporting to bind any one. to the performance of an act,
thereby warrants the instrument to be what it purports to be, and to
be binding according to its purport upon all the parties thereto; and
also warrants that he has no knowledge of any facts which tend to
prove it worthless, such as the insolvency of any of the parties thereto,
wherethat is material, the extinction of its obligations, or its invalidity
for any cause.

§ 1015. Food sound and wholesome.] One who makes a business of
selling provision^ for domestic use, warrants, by a sale thereof, to one
who buys for actual consumption, and not for the purpose of sale, that
they are sound and wholesome.

§ 1016. Sale op good will.] One who sells the good will of a
business, thereby warrants that he will not endeavor to draw oflF any
of the customers.

§ 1017. Upon judicial sale.] Upon a judicial sale, the only
warranty implied is that the seller does not know that the sale will
not pass a good title to the property.

§ 1018. General warranty— effect.] A general warranty does not
extend to defects inconsistent therewith, of which the buyer was then
aware, or which were then easily discernible by him, without the
exercise of peculiar skill; but it extends to all other defects.

CHAPTER III.

rights and obligations of the buyer.

S 1019. Buyer to pay and take away. ) A buyer must pay the
price of the thing sold on its delivery, and must take it away within a
reasonable time after the seller offers to deliver it

§ 1020. Right to inspect.] On an affreement for sale, with
warranty, the buyer has a right to inspect tne thing sold, at a reason-
able time, before accepting it; and may rescind the contract if the
seller refojses to permit him to do so.

§ 1021. Buyer may rescind for breach, ac] The breach of a
warranty entitles the buyer to rescind an a^eement for sale, but not
an executed sale, unless the warranty was mtended by the parties to
operate as a condition.

352. Exchange. Civil Code.

CHAPTER IV.

SALE BY AUCTION.

§ 1022. Definition.] A sale by auction is a sale by public outcry to
the highest bidder on the spot.

§ IOI3. When sale complete.] A sale by auction is complete when
the auctioneer publicly announces, by the fall of his hammer, or in
any other customary manner, that the thing is sold.

§ 1024. Withdrawal of bib.\ Until the announcement mentioned
in the last section has been made, any bidder may withdraw his bid, if
he does so in a manner reasonably sufficient to bring it to the notice
of the auctioneer.

§ 1025. Within conditions.] When a sale by auction is made
upon written or printed conditions, such conditions cannot be modi-
fied by any oral declaration of the auctioneer, except so far as tbey
are for his own benefit.

§ 1026. Absolute right op bidder.] If, at a sale by auction, the
auctioneer having authority to do so, publicly announces that the
sale will be without reserve, or makes any announcement equivalent
thereto, the highest bidder in good faith has an absolute right to the
completion of the sale to him; and upon such a sale, bids by the seller
or agent for him are void.

§ 1027. By bidding — fraud.] The employment by a seller at a sale
at auction, without the knowledge of the buyer, of any person to bid
at the sale, without an intention on the part Of such bidder to buy,
and on the part of the seller to enforce his bid, is a fraud upon the
buyer, which entitles him to rescind his purchase.

§ 1028. Auctioneer's memorandum.] When property is sold by auc-
tion, an entry made by the auctioneer in his sale book, at the time of
the sale, specifying the name of the person for whom he sells, the
thing sold, the price, the terms of sale, and the name of the buyer,
binds both parties in the same manner as if made by themselves.

TITLE 11.

exchange.

§ 1029. Definition.] Exchange is a contract by which the parties
mutually give, or agree to give, one thing for another, neither thing,
or both things, being money only.

§ 1030. Validity of contract.] The provisions of section nine
hundred and ninety-one apply to all exchanges in which the value of
the thing to be given by either party is fifty dollars or more.

§ 1031. Each party a seller.] The provisions of the title on sale
apply to exchanges. Each party has the rights and obligations of a
seller as to the thing which he gives, and of a buyer as to that which
•he takes.

§ 1032. Warranty that money genuine.] On an exchange of money,
each party thereby warrants the genuineness of the money given
by him.

Civil Code. Deposit. 853

TITLE 111.

DEPOSIT.

Chapter I. Deposit in General.
II. Deposit for Keeping.
III. Deposit for Exchange.

CHAPTER I.

DEPOSIT IN GENERAL.

Article I. Nature and Creation of Deposit.
II. Obligations of the Depositary.

Article I. — Nature and Creation of Deposit.

§ 1033. Two classes.] A deposit may be voluntary or involuntary ;
and for safe keeping or for exchange.

§ 1034. Voluntary.] A voluntary deposit is made by one giving to
another, with his consent^ the possession of personal property to keep
for the benefit of the former, or of a third party. The person giving
is called the depositor, and the person receiving the depositary.

§ 1035. Involuntary — kinds.] An involuntery deposit is made:

1. By the accidentalleaving or placing of personal property in the
possession of any person, without negligence on the part of its
owner; or, ,

2. In cases of fire, shipwreck, inundation, insurrection, riot, or like
extraordinary emergencies^ by the owner of personal property com-
mittiuje it, out of necessity, to the care of any person.

§ 1036. Must take charge.] The person with whom a thing is
deposited, in the manner described in the last section, is bound to take
charge of it, if able to do so.

§ 1037. For keeping — specific] A deposit for keeping is one in
which the depositary is bound to return the identical thing deposited.

§ 1038. For exchange — kind.] A deposit for exchange is one in
which the depositary is only bound to return a thing corresponding in
kind to that which is deposited.

»s

354 DBPOara*. Civil Code.

Article II. — Obligations of the Depositary.

§ 1039. Delivery on demand.] A depositary must deliver the
thing to the person for whose benefit it was deposited, on demand,
whether the deposit was made for a specified time or not, unless he
has a lien upon the thing deposited, or has been forbidden or
prevented from doing so by the real owner thereof, or by the act of
the law,^nd has given the notice required by section 1042.

§ 1040. Demand necessary.] A depositary is not bound to deliver
a thing deposited without demand, even where the deposit is maae for
a specified time.

§ 1041. Place of delivery.] A depositary must deliver the thing
deposited at his residence or place of business, as may be most con-
venient for him.

§ 1042. Notice to owner of adverse claim.] A depositary must
give prompt notice to the person for whose benefit the deposit was
made, of any proceedings taken advei-sely to his interest in the thing
deposited, which may tend to excuse the depositary from delivering
the thing to him.

§ 1043. Same of wrongful detention.] A depositarj% who believes
that a thing deposited with him is wrongfully detained from its true
owner, may give him notice of the deposit; and if within a reasonable
time afterwards he does not claim it, and sufficiently establish his right
thereto, and indemnify the depositary against the claim of the deposi-
tor, the depositary is exonerated from liability to the person to whom
he gave the notice, upon returning the thing to the depositor, or assum-
ing, in good faith, a new obligation changing his position in respect to
the thing, to his prejudice.

§ 1044. Delivery to disagreeing owners.] If a thing deposited is
owned jointly or in common by persons who cannot agree upon the
manner of its delivery, the depositary may deliver to each his proper
share thereof, if it can be done without injury to the thing.

CHAPTER II.
deposit for keeping.

Article I. General Provisions.

II. Gratuitous Deposit.

III. Storage.

IV. Inn Keepers.
V. Finding.

Article I. — General Provisions.

§ 1045. Indemnity.] A depositor must indemnify the depositary:
1. For all damage caused to him by the defects or vices of the thing
deposited; and,

'

Ciml Code. Deposit. 355

2. For all expenses necessarily incurred by him about the thing,
other than such as are involved in the nature of the undertaking.

§ 1046. Care of animals.] A depositary of living animals must
provide them with suitable food and shelter, and treat them kindly.

§ 1047. Use of deposit forbidden.] A depositary may not use the
thing deposited, or permit it to be used, for any purpose, without the
consent of the depositor. He may not, if it is purposely fastened by
the depositor, open it without the consent of the latter, except in case
of necessity.

§ 1048. Damages for wrongful use.] A depositary is liable for any
damage happening to the thing deposited auring his wrongful use
thereof, unless sucn damage must inevitably have happened though
the property had not been thus used.

§ 1049. Sale of perishing thing.] If a thing deposited is in actual
danger of perishing, before instructions can be obtained from the
depositor, the depositary may sell it for the best price obtainable, and
retain the proceeds as a deposit, giving immediate notice of his pro-
ceedings to the depositor.

§ 10m). Presumed negligence for injury, Sbc.] If a thing is lost or
injured during its deposit, and the dei)Ositary refuses to inform the
depositor of the circumstances under which the loss or injury occurred^
so far as he has information concerning them, or willfully misrepre-
sents the circumstances to him, the depositary is presumed to have
willfully, or by gross negligence, permitted the loss or injury to occur.

§ 1051. Services by depositary.] So far as any service is rendered
by a depositary, or required from him, his duties and liabilities are
prescribed by the title on employment and service.

§ 1052. Measure of damages.] The liability of a depositary for
negligence, cannot exceed the amount which he is informed by the
depositor, or has reason to suppose, the thing deposited to be worth.

Article II. — Gratuitous Deposit.

§ 1053. Definition.] Gratuitous deposit is a deposit for which the
depositary receives no consideration beyond the mere possession of the
thme deposited.

§ 1054. Involuntary.] An involuntary deposit is gratuitous, the
depositary being entitled to no reward.

1 1055. Slight oare at least.] A gratuitous depositary must use
at least slight care for the preservation of the thing deposited.

§ 1056. w HEN DUTIES CEASE.] The duties of a gratuitous depositary
cease:

1. Upon his restoring the thing deposited to its owner; or,

2. Upon his giving reasonable notice to the owner to remove it, and
the owner failing to do so within a reasonaBle time. But an involun-
tary depositary, under subdivision two, of section 1085, cannot give
such notice until the emergency that gave rise to the deposit is past.

Article III. — Storage.

g 1057. Depositary for hire.] A deposit not gratuitous is called
storage. The depositary in such case is called a depositary for hire.

S56 Deposit. Civil Code.

§ 1058. Ordinary oare.] A depositary for hire must use afc least
ordinary care for the preservation of the thing deposited.

§ 105§. Rate of compensation.] In the absence of a diflferent agree-
ment or usage, a depositary for hire is entitled to one week's hire for
the sustenance and shelter of living animals during any fraction of a
week, and to Half a month's hire for the storage of any other property
during any fraction of a half month.

§ 1060. Termination op dbpo&it.] In the absence of an agreement
as to the length of time during which a deposit is to continue, it may
be terminated by the depositor at any time, and by the depositary
upon reasonable notice.

§ 1061. Same — full time paid.] Notwithstanding an agreement
respecting the lenffth of time during which a deposit is to continue, it
may be terminated by the depositor on paying all that would become
due to the depositary in case of the deposit so continuing.

Article IV. — Innkeepers.

§ 1062. Liability of keeper of inn or boarding house.) An
innkeeper or keeper of a boarding house, is liable for all losses of, or
injuries to, personal property placed by his guests or boarders under
his care, unless occasioned by an irresistible superhuman cause, by a
public enemy, by the negligence of the owner, or by the act of some
one whom he brought into the inn or boarding house, and upon such
property the innkeeper or keeper of a boarding house has a lien and
a right of detention for the payment of such amount as may be due
him for lodging, fare, boarding, or other necessaries, by such guest or
boarder; and the said lien may be enforced by a sale of the property in
the manner prescribed in this code for the sale of pledged property.

§ 1063. How EXEMPTED FROM.] If any innkeeper or boarding house
keeper keeps a fire-proof safe, and gives notice to a guest or boarder,
either personally or by putting up a printed notice in a prominent
place in the room occupied by tne guest or boarder, that he teeps such
a safe, and will not be liable for money, jewelry, documents, or other
articles of unusual value and small compass, unless placed therein, he
is not liable except so far as his own acts contribute thereto, for any
loss of, or injury to, such article, if not deposited with him, and not
required by the guest or boarder for present use.

Article V. — Finding.

§ 1064. Finder a depositary.] One who finds a thing lost, is not
bound to take charge of it; but if he does so, he is thenceforward a
depositary for the owner, with the rights and obligations of a depos-
itary for hire.

§ 1065. Must notify owner.] If the finder of a thing knows or
suspects who is the owner, he must, with reasonable diligence, give
him notice of the finding; and if he fails to do so, he is liable in
damages to the owner, and has no claim to any reward offered by him
for the recovery of the thing, or to any compensation for his trouble or
expenses.

§ 1066. Claimant must prove.] The finder of a thing may, in good
faith, before giving it up, require reasonable proof of ownership from
any person claiming it.

Civil Code.

DlBPOSIT.

357

§ 1067. Reward for services.] The finder of a thing is entitled to
compensation for all expenses necessarily incurred by him in its
preservation, and for any other service necessarily performed by him
about it, and to a reasonable reward for keeping it.

§ 1068. Exoneration by storage.] The finder of a thing may
exonerate himself from liability at any time, by placing it on storage
with any responsible person of good character, at a reasonable ex-
pense.

§ 1069. May sell — when.] The finder of a thing may sell it, if it is
a thing which is commonly the subject of sale, when the owner can
not with reasonable diligence be found; or, being^ found, refuses upon
demand to pay the lawful charges of the finder, in the following cases:

1. When the thing is in danger of perishing, or of losing the greater
part of its value; or,

2. When the lawful charges of the finder amount to two-thirds of
its value. .

§ 1070. * Manner of sale.] A sale under the provisions of the last
section must be made in the same manner as the sale of a thing
pledged.

§ 1071. Surrender of thing to finder.] The owner of a thing
found may exonerate himself from the claims of the tinder by sur-
rendering it to him in satisfaction thereof.

§ 1072. Intentionally abandoned.] The provisions of this article
have no application to things which have been intentionally abandoned
by their owners.

CHAPTER TIL

deposit for exchange.

§ 1073. Transfers title.]- A deposit for exchange transfers to the
depositary the title to the thing deposited, and creates between him
and the depositor the relation of debtor and creditor merely..

358 Loan, Civil Code,

TITLE IV.

LOAN.

Chaptbr I. Loan for Use.

II. Loan for Exchange.
III. Loan for Money.

CHAPTER I.

LOAN FOR USE.

§ 1074. Definition.] A loan for use is a contract by which one
gives to another the temporary possession and use of jjersonal prop-
erty, and the latter agrees to return the same thing to him at a future
time, without reward for its use.

§ 1075. Title and increase to lender.] A loan for use does not
transfer the title to the thing; and all its increase during the period of
the loan belongs to the lender.

§ 1076. Care by borrower.] A borrower for use must use Rreat
care for the preservation in safety in good condition of the thing lent.

§ 1077. Of living animal.] One wno borrows a living animal for
use must treat it with great kindness, and provide everything neces-
sary and suitable for it.

§ 1078. Degree op skill.] A borrower for use is bound to have
and to exercise such skill in the care of the thing lent, as he causes
the lender to believe him to possess.

§ 1079. Repair of injuries.] A borrower for use must repair all
deteriorations or injuries to the thing lent, which are occasioned by
his negligence, however slight.

§ lOyO. Uses limited.] The borrower of a thing for use may use it
for such purposes only as the lender might reasonably anticipate at
the time of lending.

§ 1081. Re-lending forbidden.] The borrower of a thing for use
must not part with it to a third person without the consent of the
lender.

§ 1082. Expenses during loan.] The borrower of a thing for use
must bear all its expensjes during the loan, except such as are neces-
sarily incurred by him to preserve it from unexpected and unusual
injury. For such expense he is 'entitled to compensation from the
lender, who may^ however, exonerate himself by surrendering the
thing to the borrower.

§ 1083. Lender liable for defects.] The lender of a thing for
use must indemnify the borrower for damages caused by defects or

Civil Code. LaAN. 359

•

vices in it, which he knew at the time of lending and concealed from
the borrower.

§ 1084. Lendbr may require return.] The lender of a thing for
use may at any time require its return, even though he lent it for a
specified time or purpose. But if, on the faith of such an agreement,
the borrower has made such arrangements that a return of the thing
before the period agreed upon would cause him los>, exceeding, the
benefit derived by him from the loan, the lender must indemnify him
for such loss, if he compels such return, the borrower not having in
any manner violated his duty.

§ 1(^5. Returnable without demand.] If a thing is lent for use
for a specified time or purpose, it must be returned to the lender
without demand, as soon as the time has expired, or the purpose has
been accomplished. In other cases it need not be returned until
demanded.

§ 1086. Place or return.] The borrower of a thing for use must
return it to the lender, at the place contemplated by the parties at the
time of lending; or if no particular place was so contemplated by them,
then at the place where it was at that time.

CHAPTER II.

LOAN FOR EXCHANGE.

§ 1087. Definition.] A loan for exchange is a contract by which
one delivers personal property to another, and the latter agrees to
return to the lender a similar thing at a future time, without reward for
its use.

§ 1088. Same.] A loan, which the borrower is allowed by the lender
to treat as a loan for use, or for exchange, at his option, is subject to
all the provisions of this chapter.

§ 10S5. Title in B0Rig)WER- rights.] By a loan for exchange the
title to the thing lent is transferred to the borrower, and he must bear
all its expenses, and is entitled to all its increase.

§1090. Lender CANNOT modify contract.! A lender for exchange
cannot recjuire the borrower to fulfill his obligations at a time, or in a
manner, different from that which was originally agreed upon.

§ 1091. Sections applicable.] Sections 1083, 1085, and 1086, apply
to a loan for exchange.

CHAPTEK III.

LOAN OF MONEY.

§ 1092. Dbfinition— FOE mbre use.] a loan of money is a contract
by which one delivers a sum of money to another, and the latter
agrees to return at a future time a sum equivalent to that which he
borrowed. A loan for mere use is governed by the chapter on loan
for use.

360 Loan. Civil Code.

§ 1093. Repayment in current funds.] A borrower of money must

{)ay the amount due in such money as is current at the time when the
oan becomes due, whether such money is worth more or less than
the actual money lent.

§ 1094. Loan presumes interest.] Whenever a loan of money is
made, it is presumed to be made upon interest, unless it is other-
wise expressly stipulated at the time in writing.

§ 1095. Interest defined.] Interest is the compensation allowed
for the use, or forbearance, or detention of money or its equivalent.

§ 1096. Annual rate.] When a rate of interest is prescribed by a
law or contract, without specifying the period of time by which such
rate is to be calculated, it is to be deemed an annual rate.

§ 1097. Legal interest seven per cent.] Under an obligation to
pay interest, no rate being specified, interest is payable at the rate of
seven per centum per annum, and in the like proportion for a longer
or shorter time; but in the computation of interest for less than a
year, three hundred and sixty days are deemed to constitute a year.
^•il A* ^\^^ § ^^^^- Highest rate, twelve.] 1. The highest rate of interest which
it shall be lawful for any person to take, receive, retain, or contract for
in this territory, shall be twelve per cent, per annum, and at the same
rate for a shorter time.

2. Unless, within the above limitation, there is an express contract
in writing fixing a diflFerent rate, interest is payable on all moneys at
the rate of seven per cent, per annum, after they become due on any
instrument of writing, except a judgment, and on moneys lent, or due
on any settlement of accounts, from the day on which the balance is
ascertained, and on moneys received to the use of another and detained
from him.

§ 1099. Discount — limitation.] The interest which would become

due at the end of the term for which a loan is made, not exceeding

one year's interest in all, may be deducted from the loan in advance u

the parties thus agree.

^.'5! ^-^V^lg 1100. ' Usury forfeits interest only.] A person taking, receiving,

retistining, or contracting for any higher rate of interest than the
rate of twelve per cent, per annum, shall forfeit all the interest so
taken, received, retained, or contracted for; it being the intent and
meaning of this section not to provide a forfeiture of any portion of
the principal. When a greater rate of interest has been paid than
twelve per cent, per annum, the person paying it^ or his personal
representative, may recover the excess from the person taking it, or
his personal representative, in am action in the proper court. '

§ 1101. Judgments -seven per cent.] Interest is payable on judg-
ments recovered in the courts of this territory, at the rate of seven
per cent, per annum, and no greater rate, but such interest must not
be compounded in any manner or form.

§ 110a. Same rate after breach.] Any legal rate of interest
stipulated by a contract, remains chargeable after a breach thereof,
as oefore, until the contract is superseded by a verdict or other new
obligation.

Civil Code. % Hiring. 361

TITLE V,

HIRING.

Chapter I. Hiring in General.

II: Hiring of Real Propertiy.
HI. Hiring of Personal Property.

CHAPTER I.

HIRING IN GENERAL.

§ 1103. Definition.] Hiring is a contract by which one gives to
another the temporary possession and use of property, other than
money, for reward, and the latter agrees to return the same to the
former at a future time.

§ 1104. Increase to hirer.] The products of a thing hired, during
the hiring, belong to the hirer.

§ 1105. Quiet possession.] An agreement to let upon hire, binds
the letter to secure to the hirer the quiet possession of the thing hired
during the term of the hiring, against all persons lawfully claiming
the same.

§ 1106. OitoiNARY OARE.] The hirer of a thing must use ordinary
care for its preservation in safety and in good condition.

§ 1107. Repairs bt hirer.] The hirer of a thing must repair all
deteriorations or injuries thereto occasioned by his ordinary negligence.

§ 1108. Use por purpose let.] When a thing is let for a particular

Surpose, the hirer must not use it for any other purpose; and if he
oes, the letter may hold him responsible for its safety during such
use, in all events, or may treat the contract as thereby rescinded.

§ 1 109. Hiring terminated by letter.] The letter of a thing may
terminate the hiring, and reclaim the thing before the end of the term
agreed upon:

1. When the hirer uses, or permits a use of the thing hired, in a
manner contrary to the agreement of the parties; or,

2. When the hirer does not, witjiin a reasonable time after request,
make such repairs as he is bound to make.

§ 1110. By hirer.] The hirer of a thing may terminate the hiring
before the end of the term agreed upon :

1. When the letter does not, within a rea^sonable time afber request,
fulfill his obligations, if any, as to placing and securing the hirer in
the quiet possession of the thing hired, or putting it into a good con-
dition, CMT repairing; or,

2. When the greater part of the thing hired, or that part which was,
aad which Uie latter haid, at the time of the hiring, reason to believe
was the material inducement to the hirer to enter into the contract,

362 Hiring. , Civil Code.

Eerishes from any other cause than the ordinary negligence of the
irer.
§ 1111. By other events.] The hiring of a thing terminates:

1. At the end of the term agreed upon.

2. By the mutual consent of the parties.

3. By the hirer acquiring a title to the thing hired, superior to that
of the letter; or,

4. By the destruction of the thing hired.

§ 1112. By death of party, or.] If. the hiring of a thine is
terminable at the pleasure of one of the parties, it is terminated by
notice to the other of his death or incapacity to contract. In other
cases it is not terminated thereby.

1113. Proportionate part.] When the hiring of a thing is
terminated before the time originally agreed upon, tne hirer must pay
the due proportion of the hire for such use as he has actually made of
the thing, unless such use is merely nominal, and of no benefit
to him.

CHAPTER II.

HIRING OP REAL PROPERTY.

§1114. Dwelling MADE pit by lessor.] The lessor of a building
intended for the occupation of human beings must, in the absence or
an agreement to the contrary, put it into a condition fit for such
occupation, and repair all subsequent dilapidations thereof, except
that the lessee must repair all deteriorations or il^ries thereto
occasioned by his ordinary negligence. ^

§ 1115. A^HEN lessee may repair.] If. within a reasonaole time
after notice to the lessor of dilapidations which he ought to repair, he
neglects to do so, the lessee may repair the same himself, and
deduct the expense of such repairs from the rent, or otherwise recover
it from the lessor; or the lessee may vacate the premises, in which
case he shall be discharged from further payment oi rent, or perform-
ance of other conditions.

§ 1116. Presumed for one year.] A hiring of real property, other
than lodgings, in places where there is no usage on the subject, is
presumed to be for one year from its commencement, unless otherwise
expressed in the hiring.

§ 1117. Rent term limits lodging. 1 A hirinc of lodgings for an
unspecified term is presumed to have been made for such length of
time as the parties adopt for the estimation of the rent. Thus a hiring
at a weekly rate of rent is presumed to be for one week. In the
absence of any agreement respecting the length of time or the rent,
the hiring is presumed to be monthly.

§ 1 1 18. Continued possession renews lease.] If a lessee of real

f)perty remains in possession thereof, after the expiration of the
'ing, and the lessor accepts rent from him, the parties are presumed
have renewed the hiring on the same terms and for the same time,
riot exceeding one year.

Civil Code, Hiring. 368

§ 1119. Prbstumed unless noticed.] a hiring of real property, for a
term not specified by the parties, is deemed to be renewed, as stated in
the last section, at the end of the term implied by law, unless one of
the parties gives notice to the other of his intention to terminate the
same, at least as long before the expiration thereof as the term of the
hiring itself, not exceeding one month.

§ 1120. Rent — when payable.] When there is no contract or usa^e
to the contrary, the rent of agricultural and wild land is payable
yearly at the end of each year. Kent^ of lodgings are payable monthly
at the end of each month. Other rents are payable quarterly at the
end of each quarter from the time the hiring takes effect. The rent
for a hiring snorter than the periods herein specified is payable at the
termination of the hiring.

§1121. Must inform landlord — ^to stranger.] Every tenant who
receives notice of any proceeding to recover the real property occupied
by him, or the possession thereof, must immediately inform his land-
lord of the same, and also deliver to the landlord the notice, if in
writing, and is responsible to the landlord for all damages which he
may sustain by reason of any omission to inform him of tne notice, or
to deliver it to him, if in writing.

2. The attornment of a tenant to a stranger is void, unless it is
made with the consent of the landlord, or in consequence of a
judgment of a court of competent jurijidiction.

§ 1122. Part of room includes all.] One who hires part of a room
for a dwelling is entitled to the whole of the room, notwithstanding
any agreement to the contrary; and if a landlord lets a room as a
dwelling for more than one family, the person to whom he first lets any
part of it is entitled to the possession of the whole room for the term
agreed upon, and every tenant in the building, under the same landlord,
is relieved from all obligation to pay rent to him while such double
letting of any room continues.

•t

CHAPTER III.

HIRING OF PERSONAL PROPERTY.

§ 1123. Letter's obligations.] One who lets personal property must
deliver it to the hirer, secure his quiet enjoyment thereof against all
lawful claimants, put it into a condition fit for the purpose tor which
he lets it, and repair all deteriorations thereof not occassioned by the
fault of the hirer, and not the natural result of its use.

§ 1124. Ordinary expenses.] A hirer of personal property must
bear all such expenses concerning it as might naturally be foreseen to
attend it during its use by him. All other expenses must be borne by
the letter.

5i 1125. Extraordinary expenses]. If a letter fails to fulfill his
obligations as prescribed by section 1123, the hirer, after giving him
notice to do so, if such notice can conveniently be ffiven. may exper^
any reasonable amount necessary to make good the letter's defaufL
and may recover such amount from him.

364 Sbrviob. Civil Code.

§ 1126. Rbturn of thing hired.] At the expiration of the term
for which personal property is hired, the hirer must return it to the
letter at the place contemplated by the parties at the time of hiring,
or if no particular place was so contemplated by them, at the place
which it was at that time.

§ 1127. Charter-party.] The contract by which a ship is let is
termed a charter-party: By it the owner may either let the capacity
or burden of the ship, continuing the employment of the owner's
master, crew, and equipments, or may surrender the entire ship to the
charterer, who then provides them himself. The master or part owner
may be a charterer.

TITLE VL

SERVICE.

Chapter I. Service with Employment.
II. Particular Employment.
III. Service without Employment.

CHAPTER L

SERVICE WITH EMPLOYMENT.

Article I. Definition of Employment.

II. Obligations of the Employer.

III. Obligations of the Employe.

IV. Termination of Employment.

Article I. —Definition of Employment.

§ 1128. Definition.) The contract of employment is a contract by
which one, who is called the employer, engages another, who is called
the employe, to do something for the benefit of the employer, or of a
third i>erson.

Article II. - Obligations of the Employer.

§ 1129. Indemnity to employe.] An employer must indemnify his
jjhaploye, except as prescribed in the next section, for all that he neces-
^irily expends or loses in direct consequence of the discharge of his

Civil Code. Service. 365

duties as such, or of his obedience to the directions of the employer,
even though unlawful, unless the employe, at the time of obeying such
directions, believed them to be unlawful.

§ 1130. Co-EMPLOYES.] An employer is not bound to indemnify his
employe for losses suffered by the latter in consequence of the ordinary
risks of the business in which he is employed, nor in consequence of
the negligence of another person employed by the same employer in
the same general business, unless he has neglected to use ordinary care
in the selection of the culpable employe.

§ 1181. Employer's negligence.] An employer must in all cases
indemnify his employe for losses caused by the former's want of ordi-
nary care.

Article III. — Obligations of the Employe.

§ 1132. Gratuitous employe.] One who, without consideration,
undertakes to do a service for another, is not bound to perform the
same, but if he actually enters upon its pei^ormance he must use at
least slight care and diligence therein.

§ 1133. Same.] One who, by his own special request, induces another
to intrust him with the performance of a service, must perform the
same fully. In other cases, one who undertakes a. gratuitous service
may relinquish it at any time.

§1134. Same— POWER of attorney.] A gratuitous employe, who
accepts a written power of attorney, must act under it so long as it
remains in force, or until he gives notice to his employer that he will
not do so.

§ 1135. Duties of Employe for Reward.] One who, for a good
consideration, agrees to serve another, must perform the service, and
must use ordinary care and diligence therein, so long, as he is thus
employed.

§ 1136. Same for his own benefit.] One who is employed at his
own request to do that which is more for his own advantage than for
that of his employer, must use great care and diligence therein to
protect the interest of the latter.

§ 1137. Personal service contract limited.] A contract to render
personal service, other than a contract of apprenticeship, as provided
m the title on master and servant, cannot be enforc^ against the
employe beyond the term of two years from the commencement
of service under it, but if the employe voluntarily continues his
service under it beyond that time,4^he contract may be referred to as
affording a presumptive measure of the compensation.

§ 1138. liiusT OBEY EMPLOYER.] An employe must substantially
comply with all the directions of his employer concerning the service
on which he is engaged, even though contrary to the provisions of this
title, except where such obedience is impossible, or unlawful, or would
impose new and unreasonable burdens upon the employe, or in case of
an emergency which, according to the best information which the
employe can with reasonable diligence obtain, the employer did not
contemplate, in which he cannot, with reasonable diligence, be con-
sulted, and in which non-compliance is judged by the employe, iif
good faith, and in the exercise oi reasonable discretion, to he absolutely

366 Service. Civil Code.

necessary for the protection of the enlployer's interests. In all such
cases, the employe must conform as nearly to the directions of his
employer as may be reasonably practicable, and most for the interest
of the latter.

§ 1139. Must conform to usage.] An employe must perform his
service in conformity to the usage of the place of performance, unless
otherwise directed by his employer, or unless it is impracticable, or
manifestly injurious to his employer to do so.

§ 1140. Reasonable skill, unless.] An employe is bound to exercise
a reasonable degree of skill, unless his employer has notice before
employing him, of his want of skill.

§ 1141. Such skill as he possesses.] An employe is always bound
to use such skill as he possesses, so far as the same is required, for the
service specified.

§ 1142. What belongs to employer.] Everything which an employe
acq^uires by virtue of his employment, except the compensation, it any,
which is due to him from his employer, belongs to the latter, whether
acquired lawfully or unlawfully, or during or after the expiration of
the term of his employment.

§ 1143. Duty to account.] An employe must, on demand, render
to his employer just accounts of all his transactions in the course of
his service, as often as may be reasonable, and must, without demand,

fpve prompt notice to his employer of everything which he receives
or his account.

§ 1144. . Not to deliver without demand.] An employe, who
receives anything on account of his employer, in any capacity other
than that of a mere servant, is not bound to deliver it to him until
demanded, and is not at liberty to send it to him from a distance with-
out demand, in any mode involving greater risk than its retention by
the employe himself.

§ 1145. Preference to employer.] An employe, who has any busi-
ness to transact on his own account, similar to that intrusted to him
by his employer, must always give the latter the preference. If intrusted
with similar affairs by different employers, he must give them prefer-
ence according to their relative urgency, or, other things being equal,
according to the order in which they were committed to him.

§ 1146. Substitute directly responsible.] An employe, who is
expressly authorized to employ a substitute, is liable to his principal
only for want of ordinary care in his selection. The substitute is
directly responsible to the principal.

§ 1147. Kbsponsibility for NEO-LiaENOE.] An employe, who is
guilty of a culpable degree of negligence, is liable to his employer for
the damage thereby caused to the latter; and the employer is liable to
him, if the service is not gratuitous, for the value of such services
only as are properly rendered.

§ 1148. Surviving lynPLOYE.] When service is to be rendered by
two or more persons jointly, and one of them dies, the survivor must
act alone, if the service to be rendered is such as he can rightly per-
form without the aid of the deceased person, but not otherwise.

§ 1149. Confidential relations — trusts.] The obligations peculiar
IJb confidential employments are defined in the title on trusts.

Civil Code. Sbevice. 867

Article IV. — Termination of employment.

§1150. Death and incapacity op employer — other events.]
Every employment, in which the power of the employe is not
coupled with an interest in its subject, is terminated by notice to
him of:

1. The death of the employer; or,

2. His legal incapacity to contract.
Every employment is terminated:

1. By the expiration of its appointed term.

2. By the extinction of its subject.

3. By the death of the employe; or,

' 4. By his legal incapacity to act a»s such.

§ 1151. Continuance in certain cases.] An employe, unless the
tenn of his service has expired, or unless he has a right to discontinue
it at any time, without notice, must continue his service after notice
of the death or incapacity of his employer, so far as is necessary to
protect from serious injury the interests of the employer's successor
in interest, until a reasoAable time after notice of the facts has been
communicated to such successor. The successor must compensate the
employe for such service, according to the terms of the contract of
employment.

§ 1152. Termination at will.] An employment having no specified
term may be terminated at the will of either party, on notice to the
ottier, except where otherwise provided by this title.

§ 1158. For fault by employe.] An employment, even for a
specified term, may be terminated at any time by the employer, in case
of any willful breach of duty by the employe, in the course of his
employment, or in case of his habitual neglect of his duty, or
continued incapacity to perfonn it.

§ 1154. Same by employer.] An employment, even for a specified
term, may be terminated by the employe at any time, in case of any
vrtllful or permanent breach of the obligations of his employer to him
as an employe.

§ 1155. Compensation when dismissed.] An employe, dismissed by
his employer for good cause, is not entitled to any compensation for
services rendered since the last day upon which a payment became
due to him under the contract.

§ 1156. Sbrvios quit for cause.] An employe who quits the
service of his employer for good cause, is entitled to such proportion
of the compensation which would become due in case of full perform-
ance, as the services which he has already rendered bear to the services
which he was to render as full performance.

368 Sebvios. • Ciml Code.

CHAPTER IL

PARTICULAR EMPLOYMENTS.

Article I. Master and Servant.

II. Agents.

III. Factors.

IV. Shipmasters.

V. Mates and Seamen.

VI. Ships' Managers.

Article I. — Master and Servant.

§ 1157. Servant defined.] A servant is one who is employed to
render personal service to his employer, otherwise than in the pur-
suit of an independent calling, and who in such service remains
entirely under the control and direction of the latter, who is called his
master.

§1158. Presumed term — wages.] A servant is presumed to have
been hired for such length of time as the parties adopt for the estima-
tion of wages. A hiring at a yearly rate is presumed to be for one
year; a hiring at a daily rate for one day; a hiring by piece work,
for no specifiea term.

§ 115y. Month presumed.] In the absence of an agreement or
custom as to the rate or value of wages, the term of service, or the
time of payment, a servant is presumed to be hired by the month, at
a monthly rate of reasonable wages, to be paid when the service is
performed.

§ 1160. Renewal presumed.] Where, after the expiration of an
agreement respecting the wages and the term of service, the parties
continue the relation of master and servant, they are presumed to
have renewed the agreement for the same wages and term of service.

§ 1161. Time op domestic service.] The entire time of a domestic
servant belongs to the master; and the time of other servants to such
an extent as is usual in the business in which they serve, not exceed-
ing in any case ten hours in the day.

i 1162. Servant must account.] A servant must deliver to his
master, as soon as with reasonable diligence he can find him, every-
thing that he receives for his account, without demand; but he is not
bound, without orders from his master, to send anything to him
through another person.

§ 1163. Causes for discharge.] A master may discharge any ser-
vant, other than an apprentice, whether engaged for a term or not:

1. If he is guilty of misconduct in the course of his service, or of
gross immorality, though unconnected with the same; or.

Civil Code. Service. 3ft9

2. If, being employed about the person of the master, or in a confi-
dential position, the master discovers that he has been j guilty of mis-
conduct before or after the commencement of his service, of such a
nature that, if the master had known or contemplated it, he would
not have so employed hiin.

Article JL — Agents.

§ 1164. Authority.] An agent must not exceed the limits of his
actual authority, as defined by the title on agency.

§ 1165. Must mt'ORM principal.] An agent must use ordinary
diligence to keep his principal informed of his acts in the course of the
agency.

§ 1166. Collecting agent.] An agent employed to collect a negoti-
able instrument must collect it promptly, and take all measures
necessary to charge the parties thereto, in case of its dishonor, and,
if it is a bill of exchange, must present it for acceptance with reason-
able diligence.

§ 1167. Sub-agent's responsibility.] A mere agent of an agent is
not responsible as such to the principal of the latter.

Article III.— Factors.

§.1168. Factor defined. The factor is an agent who, in the pursuit
of an independent calling, is employed by another to sell property
for him, and is vested by the latter with the possession or control of
the property, or authorized to receive payment] therefor ] from the
purchaser.

§ 1169. Must obey principal.] A factor must obey the instructions
of his principal, to the same extent as any other employe, notwith-
standing any axivances he may have made to his principal upon the
property consigned to him, except that if the principal forbids him to
sell at the market price, he majr nevertheless sell mr his- reimburse-
ment, after giving to his principal reasonable notice of his intention
to do so, and of the time and* place of sale, and proceeding in all
respects as a pledgee.

§ 1170. May give usual credit.] A factor may sell property con-
signed to him on such credit as is usual, but, having once agreed with
the purchaser upon the terms of credit, may not extend it.

§ 1171. Liability under guaranty commission.] A factor who
charges his principal with a guaranty commission upon a sale thereby
assumes absolutely to pay the price when it falls due, as if it were a
debt of his own, and not as a mere ^arantor for the purchaser; but
he does not thereby assume any additional responsibility for the safety
of his remittance of the proceeds.

§ 1172. Believed only by consent.] A factor who receives prop-
erty for sale under a general agreement or usage to guaranty the ssfles,
or the remittance of tne proceeds cannot relieve himself from responsi-
bility therefor without the consent of his principal.

S4

370 Service. Civil Code. •

Article IV. — Shipmasters.

§ 1173. Appointed at pleasure op owner.] The master of a ship is
appointed by the owner, and holds during his pleasure. The word
'*snip/' as used in this code, shall be construed to mean any boat,
vessel, or structure fitted for navigation.

§ 1174. Must be on board — when.] The master of a ship is bound
to be always on board when entering or leaving port. The word
" port," as used in this code, shall be construed to mean any place on
a navigable river or lake where a vessel lauds to receive or put off
freight or passengers, or for any other purpose, and when a vessel has
made a landing it is said to be in port.

§ 1175. Pilotage.] Before leaving a port the master of a ship must
take a pilot on board, and the navigation of the vessel devolves on
him.

§ 1176. Power of master over seamen.] The master of a ship
may enforce the obedience of the mate and crew to his lawful com-
mands by confinement and other reasonable corporal punishment, not
prohibited by law, being responsible for the abuse of his power.

§ 1177. Over Passengers.] The master of a ship may confine any
person on board, during a voyage, for willful disobedience to his law-
ful commands.

§ 1178. Private storks taken.] If, during a voyage, the ship's
supplies fail, the master, with the advice of the officers, may compel
persons who have private supplies on board to surrender them for the
common want, on payment of their value or giving security therefor.

§ 1179. May abandon ship — when.] The master of a ship must
not abandon it during the voyage, without the advice of the other
officers.

§ 1180. Must TAKE treasure.] The naaster of a ship, upon aban-
doning it, must carry with him, so far as it is in his power, the money
and the most valuable of the goods on board, under penalty of being
personally responsible. If the articles thus taken are lost from causes
beyond his control he is exonerated from liability.

§ 1181. Not trade on own account.] The master of a ship, who
engages for a common profit on the cargo, must not trade on his own
account, and if he does, he must account to his employer for all profits
thus made by him.

§ 1182. Care and diligence.] The master of a ship must use great
care and diligence in the performance of his duties, and is responsible
for all damage occasioned by his ne^igence, however slight.

§ 1183. Authority of master.] The authority and liability of the
master of a ship, as an agent for the owners of the ship atid cargo, are
regulated by the title on agency.

Article V. — Mates and Seamen.

§ 1184. Mate defined.] The mate of a ship is the officer next in
command to the master.

§ 1185. Seamen.] All persons employed in the navigation of a ship,
or upon a voyage, other than the master and mate, are to be deemed
seamen, within the provisions of this code.

Civil Code. Service. S7l

§ 1186. Master engages and discharges.] The mate and seamen
of a shij) are engaged by the master, and may be discharged by him at
any period of tne voyage, for willful and persistent disobedience or
gross discinalificition, but cannot otherwise be discharged before the
termination of the voyage.

§ 1187. Unsea worthy vessel.] A mate or seaman iSTiot bound to
go on a voyage in a ship that is not seaworthy; and if there is reason-
able doubt of its seaworthiness, he may refuse to proceed until a proper
survey has been had.

§ 1188. Wages and lien not lost.] A seaman cannot, by reason of
any agreement, be deprived of his lien upon the shia or of any remedy
for the recovery of his wages to which he would otherwise have been
entitled. Any stipulation by which he consents to abandon his right
to wages in case of the loss of a ship, or to abandon any right he may
have or obtain in the nature of salvage, is void.

§ 1189. Law fixes rights— unless.] No special agreement entered
into by a seaman can impair any of his rights, or add to any of his
obligations, as defined by law, unless he fully understands the effect of
the agreement, and receives a fair compensation therefor.

§ 1190. Wages depend on frbightage.1 Except as hereinafter

Erovided, the wages of seamen are due when, and so feir only as
reiRhtage is earned, unless the loss of freightage is owing to the fault
of the owner or master. '

§ 1191. When wages begin.] The right of a mate or seaman to
wages and provisions begins either from the time he begjina work, or
from the time specified in the agreement for his beginning work, or
from bis presence on board, whichever first happens.

§ 1192. Voyage broken up.] Where a voyage is broken up before
departure of the ship, the seamen must be paid wr the time they have
served, and may retain for their indemnity such advances as they have
received.

§ 1193. Wrongful discharge — pull wages.] When a mate or
seaman is wrongfully discharged, or is driven to leave the ship by the
cruelty of the master on the voyage, it is then ended with respect to
him, and he may thereupon recover his full wages.

§ 1194. Wages not lost by wreck.] In case of loss or wreck of the
ship, a seaman is entitled to his wages up to the time of the loss or
wreck, whether freightage has been eamea or not, if he exerts himself
to the utmost to save the ship, cargo, and stores.

§ 1195. Certificate.) A certificate from the master or chief
surviving officer of a ship, to the eflfect that a seaman- exerted himself
to the utmost to save tlie ship, cargo, and stores, is presumptive
evidence of the fact.

§ 1 196. Disabled in duty.] Where a mate or seaman is prevented
from rendering service by illness or injury, incurred without his fault,
in the discharge of his duty on the voyage, or by being wrongfully
discharged^ or by a capture of the ship, he is entitled to wages
notwithstanding.

§ 1197. Expense on* sickness.] If a mate or seaman becomes sick
or disabled during the voyage without his fault, the expense of
fumiishing him with suitable medical advice, medicine, attendance,

372 Sbrviobj. Civil Code.

and other provision for his wants, must be borne by the ship till the
close of the voyage.

§ 1198. Death during voyaob.] If a mate or seaman dies during
the voyage, his personal representatives are entitled to his wages to
the time of his death, if he would have been entitled to them had he
lived to the end of the voyage.

§ 1199. Theft^ AC, FORFEITS WAGES.] Dosertiou of the ship without
cause, or a justifiable discharge by the master during the voyage for
misconduct, or a theft of any part of the cargo or appurtenances of the
ship, or a willful injury thereto, or to the snip, forfeits all wages due
for the voyage to a mate or seaman thus in fault.

§ 1200. CANNof SHIP GOODS.] A mate or seaman may not, under
any pretext, ship goods on his own aecount, without permission from
the master.

§ 1201. Embezzlement or injury.] If any part of the cargo or
appurtenances of a ship is embezzled or injured by the mate or a
seaman, the offender, or if it is not known which is the offender, all
those of whom negligence or fault may be presumed, must make good
the loss.

§ 1202. Further regulations.] The shipment of officers and
seamen, and their rights and duties, are further regulated by law.

^ Article VI. — Ships' Managers.

§ 1203. Manager.] The general agent for the owners, in respect to
the care of a ship and freight, is called the manager; if he is a part
owner, he is also called the managing owner.

§ 1204. Duties.] Unless otherwise directed, it is the duty of the
manager of a ship to i)rovide for the complete seaworthiness of the
ship; to take care of it in port; to see that it is provided with
necessary papers, with a proper master, mate and crew, and supplies
of provisions and stores.

§ 1205. Managing owner.] A managing owner is presumed to have
no right to compensation for his own senaces.

CHAPTER III.

service without employment.

§ 1206. Voluntary interference.] One who ofl&ciously, and without
the consent of the real or apparent owner of a thing, takes it into his
possession, for the purpose of rendering a service ahout ity must
complete such service, and use ordinary care, diligence, and reasonable
skill about the same. He is not entitled to any compensation for his
service or expenses, except that he may deduct actual and necessaiv
expenses, incurred by him about such service, from any profits which
his service has caused the thine to acquire for its owner, and must
account to the owner for the residue.

§ 1207. Salvage.) Any person, other than the master, mate, or a
seaman thereof, who rescues a ship, her appurtenances, or cargo, fi-om

r

Civil Code. Carriage. S73

danger, is entitled to a reasonable compensation therefor, to be paid
out of the property saved. He has a lien for such claim, which is
regulated by the title on liens.

TITLE VII.

CARRIAGE.

Chapter I. Carriage in General.

IT. Carriage of Persons.

III. Carriage of Property.

IV. Carriage of Messages.
V. Common Carriers.

CHAPTER I.

carriage in general.

§ 1208. Contract for— tKinds.] The contract of carriage is a con-
tract for the conveyance of property, persons, or messages, from one
place to another.

1209. Inland or marine.] Carriage is either:
Inland; or,

2. Marine.

8 1210. Classes defined.] Carriers upon the ocean, upon arms of
the sea, upon the great lakes, or such other navigable waters or rivers
as are within the admiralty jurisdiction of the United States, are
marine carriers. All others are inland carriers.

§1211. Carriers by sea.] Rights and duties peculiar to carriers
by sea are defined by acts of congress.

§ 1212. Gratuitous carriers.] Carriers without reward are subject
to the same rules as employes without reward, except so far as is other-
wise provided by this title.

% 1213. Same — must complete.] A carrier without reward, who has
begun to perform his undertaking, must complete it in like manner as
if he had. received a reward, unless he restores the person or thing
carried to as favorable a position as before he commenced the
carriage.

374 Cabrxaoe. Civil Code.

CHAPTER II.

CARRIAGE OF PERSON'S.

Article L Gratuitous Carriage.
II. Carriage for Reward.

Article I. — Gratuitous Carriage of Persons.

§ 1214. Ordinary care.] A carrier of persons without reward
must use ordinary care and diligence for their safe carriage.

Article II.- -Carriage for Reward.

§ 1215. Utmost care — skill.] A earner of persons for reward must
use the utmost care and diligence for their safe carriage, must provide
everything necessary for that purpose, and must exercise to that end
a reasonable degree of skill.

§ 1216. Vehicles safe and fit.] A carrier of persons for reward is
bound to provide vehicles safe and fit for the purposes to which they
are put, and is not excused for default in this respect by any degree of
care.

§ 1217. Not overload.] A carrier of persons for reward must not
overcrowd or overload his vehicle.

§ 1218. Treatment of passengers.] A can-ier of persons for reward
must give to passengers all such accommodations as are usual and reas-
onable, must treat them with, civility, and give them a reasonable
degree of attention.

f 1219. Speed and delays.] A carrier of persons for reward must
travel at a reasonable rate of speed, and without any unreasonable
delay, or deviation from his proper route.

CHAPTER III.
carriage of property.

Article I. General Definitions.

II. Obligations of the Carrier.

III. Bill of Lading.

IV. Freightage.

V. General Average.

Article I. — General Definitions.

§ 1220. Freight -consignor.] Property carried is called freight;
the reward, if any, to be paid for its carriajge is called freightage; the
person who delivers the freight to the carrier is called the consignor;
and the person to whom it is to be delivered is called the consignee.

Civil Code. Carriage. 375

Article IL — Obligations op the Carrier.

§ 1221. 'Degrees of Care.] A carrier of property for reward must
use at least ordinary care and diligence in the performance of all his
duties. A carrier without reward must use at least slight care and
diligence.

§ 1222. Must obey directions.] A carrier must comply with the
directions of the consignor or consignee, to the same extent that an
employe is bound to comply with those of his employer.

§ 1223. When conflicting.] When the directions of a consignor
and consignee are conflicting, the carrier must comply with those of
the consignor in respect to all matters except the delivery of the
freight, as to which he must comply with the directions of the
consignee, unless the consignor has specially forbidden the carrier to
receive orders from the consignee inconsistent with his own.

§1224. Storage — deviation.] A marine carrier must not stow
freight upon deck during the voyage, except where it is usual to do
so, nor make any improper deviation from or delay in the voyage, nor
do any other unnecessary act which would avoid an insurance m the
usual form iipon the freight.

§ 1225. Manner of delivery.] A carrier of property must deliver
it to the' consignee, at the place to which it is addressed, in the manner
usual at that place.

§ 1226. Place of delivery.] If there is no usage to the contrary
at the place of delivery, freight must be delivered as follows :

1. If carried upon a railway owned and managed by the carrier, it
may de delivered at the station nearest the place to which it is
addressed.

2. If carried by sea from a foreign country, it may be delivered at
the wharf where the ship moors, within a reasonable distance from
the place of address; or if there is no wharf, on board a lighter along-
side the ship; or,

3. In other cases, it must be delivered to the consignee or his agent,
personally, if either can, with reasonable diligence, be found.

§ 1227. Notice to * oonsignbe.] If, for any reason, a carrier does
not deliver freight to the consignee or his agent personally, he must
give notice to the consignee of iis arrival, and keep the same in safety,
upon his responsibility as a warehouseman, until the consignee has had
a reasonable time to remove it. If the place of residence or business
of the consignee be unknown to the carrier, he may give the notice
by letter dropped in the nearest postoffice.

§ 1228. May terminate liability.] If a consignee does not accept
and remove freight within a reasonable time after the carrier has ful-
filled his obligation to deliver, or duly offered to fulfill the same, the
carrier may exonerate himself from further liability by placing the
freight in a suitable warehouse, on vStorage, on account of the consignee,
and giving notice thereof to him.

Article III. Bill of Lading.

§ 1229. Definition.] A bill of lading is an instrument in writing,
signed by a carrier or his agent, describing the freight so as to identify

376 Carriage. Civil Code.

it, stating the name of the consignor, the terms of the contract for
carriage, and agreeing or directing that the freight be delivered to the
order or assigns of a specified person at a specified place.

§ 1230. Bill op lading nxgotiablb.] All the title to the freight
which the first holder of a bill of lading had when he received it,
passes to every subsequent indorsee thereof in good faith and for value,
in the ordinary course of business, with like effect and in like manner
as in the case of a bill of exchange.

§ 1231. By delivery.] When a bill of lading is made to bearer, or
in equivalent terms, a simple transfer thereof by delivery conveys the
same title as an indorsement.

§ 1232. Effects of bill on carrier.] A bill of lading does not alter
the rights or obligation of the carrier, as defined in this chapter, unless
it is plainly inconsistent therewith.

§ 1233. Sets of bills to consignor.] A carrier must subscribe and
deliver to the consignor, on demand, any reasonable number of bills of
lading, of the same tenor, expressing truly the original contract for
carriage; and if he refuses to do so, the consignor may take the
freight from him, and recover from him besides all damages thereby
occasioned.

§ 1234. Delivery according to bill.] A carrier is exonerated from
liability for freight, by delivery thereof, in good faith, to any holder of
a bill of lading therefor, properly indorsed, or made in favor of the
bearer.

§ 1235. Surrender of bill on delivery.] When a carrier has given
a bill of lading, or other instrument substantially equivalent thereto,
he may require its surrender, or a reasonable indemnity against claims
thereon, before delivering the freight.

Article IV. — Freiohtags.

§ 1236. Freightage when due,] A carrier may require his freight-
age to be paid upon his receiving the freight; but if he does not
demand it then, he cannot until he is ready to deliver the freight to
the consignee.

§ 1237. Consignor presumed liable.] The consignor of freight is
presumed to be liable for the freightage, but if the contract between
him and the carrier provides that the consignee shall pay it, and the
carrier allows the consignee to take the freight, he cannot afterwards
recover the freightage from the consignor.

§ 1238. Consignee -WHEN liable.] The consignee of freight is
liable for the freightage, if he accepts the freight with notice of the
intention of the consignor that he should pay it.

§ 1239. Natural increase.] No freightage can be charged upon
the natural increase of freight,

§ 1240. Apportionment by contract.] If freightage is apportioned
by a bill of lading, or other contract made between a consignor and
carrier, the carrier is entitled to payment, according to the apportion-
ment, for so much as he delivers.

§ 1241. By acceptance of part.] If a part of the freight is accepted
by a consignee, without a specific objection that the rest is not deliv-

Civil Code. ' Careiage. 377

ered, the freightage must be apportioned and paid as to that part,
thouffh not apportioned in the original contract.

§ 1242. According to distance.] If a consignee voluntarily receives
freight at a place short of the one appointed for delivery, the carrier
is entitled to a just proportion of the freightage, according to distance.
If the carrier, being ready and willing, offers to complete the transit,
he is entitled to the full freightage. If he does not thus offer comple-
tion, and the consignee receives the freight only from necessity, the
carrier is not entitled to any freightage.

§ 1243. Extra carriage.] If freight is carried further, or more
expeditiously, tl\an was agreed upon by the parties, the carrier is not
entitled to additional compensation, and cannot refuse to deliver it,
on the demand of the consignee, at the place and time of its arrival.

§1244. Lien.] A carrier has a lien for freightage, which is regulated
by the title on liens.

Article V. — General Average.

§ 1245. Jettison and general average.] A carrier by water may,
when in case of extreme peril it is necessary for the safety of the ship
or cargo, throw overboard, or otherwise sacrifice, any or all of the cargo
or appurtenances of the ship. Throwing property overboard for such
purpose is called jettison, and the loss incurred thereby is called a
general average loss.

§ 1246. Order of.] A jettison must begin with the most bulky and
least valuable articles, so far as possible.

§ 1247. Who may order.] A jettison can be made only by
authority of the master of a ship, except in case of his disability,
or of an overruling necessity, when it may be made by any other
person.

§ 1248. Loss proportioned.] The loss incurred by a jettison,
when lawfully made, must be borne in due proportion by all that
part of the ship, appurtenances, freightage, and cargo, for the
benefit of which the sacrifice is made, as well as by the owner of the
thing sacrificed.

§ 1249. Ratio of adjustment.] The proportions in which a
general average loss is to borne, must be ascertamed by an adjustment
m which the owner of each seperate interest is to be charged with
such proportion of the value of the thing lost, as the value oi his part
of the property affected bears to the value of the whole. But an
adjustment made at the end of the voyage, if valid there, is valid
everywhere.

§ 1250. Values determined.] In estimating values for the pur-
pose of a general average, the ship and appurtenances must be valued
as at tha end of th^ V9yage, the freightage at one half the amount due
on delivery, dnd the fcargo as at the time and place of its discharge;
adding, in each case, the amount made good by contribution.

§ 1251. Deck stowage.] The owner of things stowed on deck, in
case of their jettison, is entitled to the benefit of a general average
contribution only in case it is usual to stow such things on deck upon
such a voyage.

378 CAttEiAGE. Civil Code.

§ 1252. Other application.] Th6 rules Jierein stated concerning
jettison are equally applicable to every other voluntary sacrifice of
property on a ship, or expense necessarily incurred for thje preserva-
tion of the ship and cargo from extraordinary perils.

CHAPTER IV.

CARRIAGE OF MESSAaES.

§ 1253. Carrier delivers messages.] A carrier of messages for
reward must deliver them at the place to which they are addressed, or
to the persons for whom they are intended.

§11254. Must use care.] A carrier of messages for reward must
usejgreat care and diligence in the transmission and delivery of
messages. A carrier by telegraph must use the utmost diligence
therein.

CHAPTER V.

COMMON carriers.

Article I. Common Carriers in General.

II. Common Carriers of Persons.

III. Common Carriers of Property.

IV. Common Carriers of Messages.

Article I.— Common Carriers in General.

§ 1255. Definition.] Every one who oflfers to the public to carry
persons, property, or messages, is a common carrier of whatever he
thus offers to carry.

§ 1256. Must accept all.] A common carrier must, if able to do
so, accept and carry whatever is offered to him, at a reasonable time
and place, of a kind that he undertakes or is accustomed to carry.

§ 1257. No PREFERENCE.] A commou carrier must not give
preference, in time, price, or otherwise, to one person over another,
except where expressly authorized by statute. ft.vY-^^'^t) ^-^V^T?

§ 125S. Government preferred.] A common carrier must always

five a preference in time, and may give a preference in price, to the
Inited States and to this territory.

§ 1259. Starting.] A common carrier must start at such time and
place as he announces to the public, unless detained by accident or the
elements, or in order to connect with carriers on other lines of travel.

Civil Code. Cabbiaoe. 379

§ 1260. CoMPBNSATiON.] A common c-arrier is entitled to a reason-
able compensation and no more, which he may require to be paid in
advance. If payment thereof is refused, he may refuse to carry.

§ 1261. Obligations how limitbd.] The obligations of a common
carrier cannot be limited by general notice on his part, but may be
limited by special contract.

§ 1262. VOID AGRBBMENTS.] A commou carrier cannot be exonerated
by any agreement made in anticipation thereof, from liability for the
gross negligence, fraud, or willful wrong, of himself or his servants.

§ 1263. CoNstRucTiON OF CONTRACT.] A passcngor, consignor, or
consignee, by accepting a ticket, bill ' of lading, or written contract for
carriage, with a knowledge of it« terms, assents to the rate of hire,
the time, place, and manner of delivery therein stated. But his assent
to any other modification of the carrier's rights or obligations con-
tained in such instrument can only be manifested by his signature to
the same.

Article II. — Common Carriers op Persons.

§ 1264. Must oabrt baggage.] A common carrier of persons,
uidess his vehicle is fitted for the reception of passengers exclusively,
must receive and carry a reasonable amount of luggage for each
passenger, without any charge except for an excess of weight over one
hundr^ pounds to a passenger,

§ 1265. D FiNiTioN.] Luggage may consist of any articles intended
for the use of a passenger while traveling, or for his personal
equipment.

§ 1266. Liability for luggage.] The liability of a carrier for
Itigg*^^ received by him with a passenger, is the same as that of a
common carrier of property.

§ 1267. CarrUlGe and dblivbby of same.] A common carrier must
deliver every passenger's luggage, whether within the prescribed
weight or not, immediately upon the arrival of the passenger at his
destmation; and, unless the vehicle would be overcrowded or over-
loaded thereby) must carry it on the same vehicle by which he carries
the passenger to )vhom it belongs; except that where luggage is trans-
ported by rail, it must be checKed and carried in a regular baggage
car; and whenever passengers neglect or refuse to have their luggage
so checked and transported, it is carried at their risk.

§ 1268. Must provide vehicles.] A common carrier of persons
must provide a sufficient number of vehicles to accommodate all the
passengers who can be reasonably expected to require carriage at any
one time.

§ 1269. Seats fob passengers.] A common carrier of persons must
provide every i)assenger with a seat. He must not overload his
v^cle by receiving and carrying more passengers than its rated
capacity allows.

§ 1270. Business rules.] A common carrier of persons may make
yules for the conduct of his business, and may require passengers to
conform to them, if they are lawful, public, uniform in their applica-
tion, and reasonable.

§ 1271. Farb-^when payable.] A common carrier may demand
the fore of passengers either at starting or at any subsequent time.

880 . Carriage. Civil Code.

§ 1272. Ejection of passengers.] A passenger who refuses to pay
his fare, or to conform to any lawful regulation of the carrier, may be
ejected from the vehicle by the carrier. But this must be done with
as little violence as possible, and at any usual stopping place, or near
spme dwelling house.

§ 1273. No FARE DUE.] After having ejected a passenger, a carrier
has no right to require the payment of any part of his fare.

§ 1274. Lien on luggage.] A common carrier has a lien upon the
luggage of a passenger for the payment of such fare as he is entitled
to firom him. This lien is regulated by the title on liens.

Article III. — Common Carriers of Property.

§ 1275. Liability of inland carrier.] Unless the consignor accom-
panies the freight and retains exclusive control thereof, an inland
common carrier of property is liable, from the time that he accepts
until he relieves himself from liability pursuant to sections 1103 to
1107, for the loss or injury thereof from any cause whatever, except:
1. An inherent defect, vice, or weakness, or a spontaneous action, of
the property itself

2. The act of a public enemy of the United States, or of this
territory.

3. The act of the law; or,

4. Any irresistable superhuman cause.

§ 1276. When not exempt.] A common carrier is liable, even in
the cases excepted by the last section, if his ordinary negligence
exposes the property to the cause of the loss.

§ 1277. Liability for delay.] A common carrier is liable for
delay only when it is caused by his want of ordinary care and
diligence.

§ 1278. Marine carrier.] A marine carrier is liable in like manner
as an inland carrier, except for loss or injury caused by the perils of the
sea or fire.

§1279. Rev. stat. united states, page 831.] The liability of a
common carrier by sea is further regulated by acts of congress.

§ 1280. Perils of sea.] Perils of the sea are from:

1. Storms and waves.

2. Rocks, shoals, and rapids.

3. Other obstacles, though of human origin.

4. Changes of climate.

5. The confinement necessary at sea.

6. Animals peculiar to the sea; and,

7. All other dangers peculiar to the sea.

§ 1281. Valuables to be declared.] A common carrier of gold,
silver, platina, or precious stones, or of imitations thereof, in a man-
ufactured or unmanufactured state, of time-pieces of any description,
of negotiable paper or other valuable writmgs, of pictures, glass or
china ware, is not liable for more than fifty dollars, upon the loss or
injury of any one package of such articles, unless he has notice, upon
his receipt thereof, by mark upon the package or otherwise, of the
nature of the freight.

§ 1282. Beyond usual route.] If a common carrier accepts freight
for a place beyond his usual route, he must, unless he stipulates other-

Civil Code. Carriage. 381

wise, deliver it at the end of his route in that direction to some other
competent carrier, carrying to the place of address, or connected with
those who thus carry, and his liability ceases upon making such
delivery.

§ 1283. Proof of loss.] If freight, addressed to a place beyond the
usual route of the common caiTier who first received it, is lost or
injured, he must, within a reasonable time after demand, give
satisfactory proof to the consignor that the loss or injury did not
occur while it was in his charge, or he will be himself liable therefor.

§ 1284. Other services.] In respect to any service rendered by a
common carrier about freight, other than its carriage and delivery,
his rights and obligations are defined by the titles on deposit and
service.

Article IV. — Common Carriers of Messages.

§ 1285. Order of messages.] A carrier of messages by telegraph
must, if it is practicable, transmit every such message immediately
upon its receipt. But if this is not practicable, and several messages
accumulate upon his hands, he must transmit them in the following
order:

1. Messages from public agents of the United States, or of this ter-
ritory, on public business.

2. Messages intended in good faith for immediate publication in
newspapers, and not for any secret use.

3. Messages giving information relating to the sickness or death of
any person.

I. Other messages, in the order in which they were received.

§ 1286. In other cases.] A common carrier of messages, otherwise
than by telegraph, must transmit messages in the order in which he
receives them, except messages from agents of the United States or
of this territory, on public business, to which he must always give
priority. But he may fix upon certain times for the simultaneous
transmission of messages previously received.

§ 1287. Damages.] Every person whose message is refused or post-
poned, contrary to the provisions of this chapter, is entitled to
recover from the carrier his actual damages, and fifty dollars addition
thereto.

882 Trust. Civil Code,

TITLE VIII.

TRUST.

Chapter I. Trusts in General.

11. Trusts for the Benefit of Third Persons.

CHAPTER L

TRUSTS IN GENERAL.

Article I. Nature and Creation of a Trust.
II. Obligations of Trustees.
III. Obligations of Third Persons.

Article I. — Nature anb Creation of a Trust.

§ 1288. Trusts classed.] A trust is either:

1. Voluntary; or,

2. Involuntary.

§ 1289. Voluntary.] A voluntary trust is an obligation arising
out of a personal confidence reposed in, and voluntarily accepted by
one, for tne benefit of another.

§ 1290. Involuntary.] An involuntary trust is one which is created
by operation of law.

§ 1291. Trustor and trustee.] The person whose confidence creates
a trust, is called the trustor; the person in whom the confidence
is reposed is called the trustee; and the person for whose benefit the
trust is created is called the beneficiary.

§ 1292. What constitutes trustee.] Every one who voluntarily
assumes a relation of personal confidence with another, is deemed a
trustee within the meaning of this chapter, not only as to the person
who reposes such confidence, but also as to all persons of whose affairs
he thus acquires information which was given to such person in the like
confidence, or over whose affairs he, by such confidence, obtains any
control.

§ 1293. Purposes of trust.] A trust may be created for any pur-
pose for which a contract may lawfully be made, except as otherwise
prescribed by the titles on uses and trusts and on transfers.

Civil Code. Trust. 888

§ 1294. Creation as to trustor.] Subject to the provisions of sec-
tion two hundred and seventy-nine, a voluntary trust is created, as to
the trustor and beneficiary, by any words or acts of the trustor, indi-
cating with reasonable certainty:

1. An intention on the part of the trustor to create a trust; and,

2. The subject, purpose, and beneficiary of the trust.

§ 1295. As TO TRUSTEE.] Subjcct to the provisions of section two
hundred and seventy-nine, a voluntary trust is created, as to the
trustee, by any words or acts of his, indicating with reasonable cer-
tainty:

1. His acceptance of the trust, or his acknowledgment, made upon
sufficient consideration, of its existence; and,

2. The subject purpose, and beneficiary of the trust.

§ 1296. Trustee by his own wrong.] One who wrongfully detains
a thing is an involuntary trustee thereof, for the benefit of the owner.

§ 12a7. By negligence.] One who gains a thing by fraud, accident,
mistake, undue influence, the violation of a trust, or other wrongful act,
is, unless he has some other and better right thereto, an involuntary
trustee of the thing gained, for the benefit of the person who would
otherwise have had it.

Article XL — Obligations op Trustees.

§ 1298. Good faith.] In all matters connected with his trust a
trustee is bound to act in the highest good faith toward his benefi-
ciary, and may not obtain any advantage therein over the latter, by
the slightest misrepresentation, concealment, threat, or adverse pres-
sure of any kind,

§ 1299. Not for his profit J A trustee may not use or deal with the
trust property for his own profit, or for any other purpose unconnected
with the trust, in any manner.

§ 1300. Transactions forbidden.] Neither a trustee, nor any of
his agents, may take part in any transaction concerning the trust, in
whicn he, or any one for whom he acts as agent, has an interest, pres-
ent or contingent, adverse to that of his beneficiary, except as follows:

1. When the beneficiary, having capacitv to contract, with a full
knowledge of the motives of the trustee, and of all other facts con-
cerning the transaction which might effect his own decision, and
without the use of any influence on the part of the trustee, permits
him to do so.

2. When the beneficiary not having power to contract, the district
court, upon the like information of the facts, grants the like permis-
sion; or,

3. When some of the beneficiaries having capacity to contract, and
some not having it, the former grant permission for themselves, and
the district court for the latter, in the manner above prescribed.

§ 1301. Influence.] A trustee may not use the influence, which
his position gives him, to obtain any advantage from his beneficiary.

§ 1302. Adverse trust.] No trustee, so long as he remains in the
trust, may undertake another trust adverse in ite nature to the interest
of his beneficiary in the subject of the trust, without the consent of
the latter.

384 Trust. Civil Code.

% 1303. Adverse interest.] If a tanistee acquires any interest, or
becomes charged with any duty, adverse to the interest of his bene-
ficiary in the subject of the trust, he must immediately inform the
latter thereof, and may be at once removed.

§ 1304. Violation a fraud.] Every violation of the provisions of
the preceding sections of this article, is a fraud against the beneficiary
of a trust.

§ 1305. Presumption against trustee.] All transactions between
a trustee and his beneficiary, during the existence of the trust, or
while the influence acquired by the trustee remains, by which he
obtains any advantage from his beneficiary, are presumed to be entered
into by the latter without suflBcient consideration and under undue
influence.

§ 1306. MiNOiiiNG property.] a trustee who willfully and unnec-
essarily mingles the trust property with his own, so as to constitute
himself in appearance its aJbsolute owner, is liable for its safety in all
events.

§ 1307. Liability.] A trustee who uses or disposes of the trust
property, contjrary to section 1299, may, at the option of the beneficiary,
be required to account for all profits so made, or to pay the value of
its use, and, if he has disposed thereof, to replace it, with its fruits, or
to account for its proceeds, with interest.

§ 1308. Same— GOOD faith.] A trustee who uses or disposes of the
trust property in any manner not authorized by the trust, out in ^ood
faith, and with intent to serve the interest of the beneficiary, is liable
only to make good whatever is lost to the beneficiary b}^ his error.

§ 1309. Co-trustees.] A trustee is responsible for the wrongful
acts of a co-trustee, to which he consented, or which by his negligence
he enabled the latter to commit, but for no others.

Article III. — Obligations of Third Persons.

«

§ 1310. When involuntary trustees.] Every one to whom prop-
erty is transferred, in violation of a trust, holds the same as an
involuntary trustee under such trust, unless he purchased it in good
faith and for a valuable consideration.

§ 1311. Third persons when not bound.] One who actually and in
good faith transfers any money or other property to a trustee, as
such, is not bound to see to the application thereof; and his rights can
in no way be prejudiced by a misapplication thereof by the trustee.
Other persons must, at their peril, see to the proper application of
money or other property paid or delivered by them.

Civil Code. Trust. 886

CHAPTER II.

TRUSTS FOR THE BENEFIT OF THIRD PERSONS.

Abtiouc I. • Nature and Creation of the Trust.
II. Obligations of Trustees.

III. Powers of Trustees.

IV. Bights of Trustees.

V. Termination of the Trust.
VI. Succession or Appointment of New Trustees.

Abtiolb I. — Nature and Obsation of the Teust.

§ 1312. Express trusts only.] The provisions of this chapter
apply only to express trusts, created for the benefit of another than
the trustor, and in which the title to the trust property is vested in
the trustee; not including, however, those of executors, administrators
and guardians, as such.

§ 1313. Mutual consent.] The mutual consent of a trustor and
trustee creates a trust, of wnich the beneficiary may take advantage
^t anv time pHor to its rescission.

§ 1314. Appointed by court.] When a trustee is appointed by a
court or public officer as such, such court or officer is the trustor,
within the meaning of the last section.

§ 1315. Declaration.] The nature, extent, and object of a trust are
exjpressed in the declaration of trust.

% 1316. Same by tbubtor.] All declarations of a trustor to his
trustees, in relation to the trust, before its acceptance by the trustees,
or any of them, are to be deemed part of the declaration of the trost,
except that when a declaration of trust is made in writing, all previous
declarations by the same trustor are mei^ed therein.

Abtiolb II. — Obligations op Trustee.

§ 1317. Must obey declaration.] A trustee must fulfill the purpose
of the trust, as declared at its creation, and must follow all the direc-
tions of the trustor ^ven at that time, except as modified by the
consent of all parties interested, in the same manner, and to the same
extent, as an employe.

§ 1318. Dbqree of care.] A trustee, whether he receives any
compensation or not, must use at least ordinary care and diligence in
the execution of his trust.

§ 1319. Appointment of succbs80r.j If a trustee procures or assents
to his discharge from his office, before his trust is fully executed,
he must use at least ordinary care and diligence to secure me appoint-
ment of a trustworthy successor before accepting his own final
discharge.

386 Trust. ChU Code.

% 1820. Investment by trustee,] A trustee must invest money
received by him under the trust, as fast as he collects a sufficient
amount, in such manner as to aflFord reasonable securitv and interest
for the same.

§1321. Omitted investment — penalty.] If a trustee omits to
invest the trust moneys according to the last section, he must pay
simple inteyest thereon, if such omission is negligent merely, and
compound interest if it is willful.

§ 1322. Purchased claims.] A trustee caniiot enforce any claim
ajgainst the trust property which he purchases after or in contempla-
tion of his appointment as trustee; but he may be allowed by any
competent court, to charge to the trust property what he has in good
faith paid for the claim, upon discharging the same.

Article III. — Powers of Trustees.

§ 1323. Trustee, general agent.] A trustee is a general agent for
the trust property. His authority is such as is conferred upon him by
the declaration of trust, and by this chapter, and none other. His acts,
within the scope of his authority, bind the trust property, to the same
extent as the acts of an agent bind his principal.

§1324. All must act.] Where there are several CQ-trustees, all
must unite in any act to bind the trust property, unless the declaration
of trust otherwise provides.

§ 1325. Discretionary powers.] A discretionary power conferred
upon a trustee, is presumed not to be left to his arbitrary discretion,
but may be controlled by the district court if not reasonably exercised,
unless an absolute discretion is clearly conferred by the declaration of
trust.

Article IV.- Rights of Trustees.

• § 1326. Indemnification.] A trustee is entitled to the repayment,
out of the trust property, of all expenses actually and properly
incurred by him in the performance of his trust. He is entitled to
the repayment of even unlawful expenditures, if they were productive
of actual benefit to the estate.

§ 1327. Compensation.] When a declaration of trust is silent upon
the subject of compensation, the trustee is entitled to the same com-
pensation as an executor. If it specifies the amount of his compen-
sation, he is entitled to the amount thus specified, and no more. If it
directs that he shall be allowed a compeuvsation, but does not
specify the rate or amount, he is entitled to such compensation as may
be reasonable under the circumstances.

§ 1328. Not included.] An involuntary trustee, who becomes
such through his own fault, has none of the rights mentioned in this
article.

Article V.— Termination of the Trust.

• <

§1329. By fulfillment.) A trust is extinguished by the entire
fulfillment of its object, or by such object becoming impossible or
unlawful.

Civil Codp. Trust. 887

§ 1380. Ibbevoqablb.] A trust cannot be revoked by the trustor,
after its acceptance, actual or presumed, by the trustee and beneficia-
ries, except by the consent of all the beneficiaries, unless the declara-
tion of trust reserves a power of revocation to the trustor, and in that
case the power must be strictly pursued.

§ 1331. Vacated.] The office of a trustee is vacated:

1. By his death; or,

2. By his discharge.

§ 1332. DisoHAROB OF TRUSTER. 1 A trustee can be discharged from
his trust only, as follows:

1. By the extinction of the trust.

2. By the completion of his duties under the trust.

3. By such means as may be prescribed by the declaration of trust.

4. By the consent of the beneficiary, if he has ca'pacity to contract.

5. By the judgment of a competent tribunal, in a direct proceeding
for that purpose, that he is of unsound mind; or,

6. Bv the district court.

§ 1333. Removal by court.] The district court may remove any
trustee who has violated or is unfit to execute the trust.

Article VI. — Succession or Appointment op New Trustees.

§ 1334. When by oourt.] The district court may appoint a trustee
whenever there is a vacancy, and the declaration of trust does not
provide a practicable method of appointment.

§ 1335. Survives to oo-tbustbes,] On the death, renunciation, or
discharge of one of several co-trustees, the trust survives to the others.

§ 1336. Court powers.] When a trust exists without any appointed
trustee, or where all the trustees renounce, die, or are discharged, the
district court of the county, or judicial subdivision, where the trust
property, or some portion thereof, is situated, must appoint another
trustee, and direct the execution of the trust. The court may, in it^
discretion, appoint the original number, or any less number of trustees.

AoKNolf. Civil Code.

TITLE IX.

AGENCY.

Chapter I. Agency in General.
II. Particular Agencies.

CHAPTER T.

AGENCY IN GENERAL.

Article 1. Definition of Agency.

II. Authority of Agents.

III. Mutual Obligations of Principals and Third Persons.

IV. Obligations of Agents to Third Persons.
V. Delegation of Agency.

VI. Termination of Agency.

Article I. — Definition op Agency.

§ 1337. Agency defined.] An agent is one who represents another
called the principal, in dealings witn third persons. Such representa-
tion is called agency.

§ 1338. Qualifications.] Any person, having capacity to contract,
may appoint an agent; and any person may be an agent.

§1339. Special and general.] An agent for a particular act or
transaction is called a special agent. All others are general agents.

§ 1340. Classified.] An agency is either actual or ostensible.

§ 1341. Actual agency.] An agency is actual when the agent is
really employed by the principal.

§ 1342. Ostensible.] An agency is ostensible when the principal
intentionally, or by want of ordinary care, causes a third person to
believe another to be his agent, who is not really employed by him.

Article II. — Authority of Agents.

§ 1343. What powers.] An agent may be authorized to do any
acts which his principal might do, except those to which the latter is
bound to give his personal attention.

Civil Code. Agbnot. 389

§ 1344. Any lawful act.] Every act which, according to this code,
may be done by or to any person, may be done by or to the agent of
such person for that purpose, unlej=^s a contrary intention clearly
appears.

§ 1345. Not to defraud peincipal.] An agent can never have
authority, either actual or ostensible, to do an act which is, and is
known or suspected by the person with whom he deals, to be a fraud
upon the principal.

§ 1346. How AUTHORIZED.] An agency may be created, and an
authority may be conferred, by a precedent authorization, or a subse-
quent ratification.

§ 1347. No CONSIDERATION.] A Consideration is not necessary to
make an authority, whether precedent or subsequent, binding upon
the principal.

§ 1348. Form of authority.] An oral authorization is sufficient for
any purpose, except that an authoritjr to enter into a contract required
by law to be in writing can only be given by an instrument in writing.

§ 1349. Form of ratification.] A ratification can be made only in
the manner that would have been necessary to confer an original
authority for the act ratified, or, where an oral authorization would
suffice, by accepting or retaining the benefit of the act, with notice
thereof.

§ 1350. Part includes whole.] Ratiticationof part of an indivisible
transaction is a ratification of the whole.

§ 1351. When void.] A ratification is not valid unless, at the time
of ratifying the act done, the principal has power to confer authority
for such an act.

§ 1352. Retroactive, limited.] No authorized act can be made
valid, retroactively, to the prejudice of third persons, without their
consent.

§ 1353. Rkscibsion of ratification.] A ratification may be
rescinded when made without such consent as is required in a
contract, or with an imperfect knowledge of the material facts of the
transaction mtified, but not otherwise.

§ 1354. Authority.] An agent has such authority as the principal,
actually or ostensibly, confers upon him.

§ 1355. Actual.] Actual authority is such as a principal intention-
ally confers upon the agent, or intentionally or by want of ordinary
care, allows the agent to believe himself to possess.

§ 1356. Ostensible.] Ostensible authority is such as a principal
. intentionally, or by want of ordinary care, causes or allows a third
person to believe the agent to possess.

§ 1357. Legal construction.] Every agent has actually such
authority as is defined by this title, unless specially deprived thereof
by his principal, and has even then such authority ostensibly, except
as to persons who have actual or constructive notice of the restriction
upon nis authority.

fl358. Necessary authority.! * An agent has authority:
. To do everything necessaiy, or proper and usual in the ordinary
Qourse of business, for effecting the purpose of his agency; and,

2. To make a representation respecting any matter of fact, not
includixig the terms of his authority, but upon which his right to use

890 Agency. Civil Code.

his authority depends, and the truth of which cannot be determined
by the use of reasonable diligence on the part- of the person to whom
the representation is made.

§ 1359. May disobey.] An agent has power to disobey instructions
in dealing with the subject of the agency, in cases where it is clearly
for the interest of his principal that he should do so, and there is not
time to communicate with the principal.

§ 1360. Construction.] When an authority is given partly in
general and partly in specific terms the general authority gives no
higher powers than those specifically mentioned.

§ 1361. Exceptions to general power.] An authority expressed in
general terms, however broad, does not authorize an agent:

1. To act in his own name, unless it is the usual course of business
to do so.

2. To define the scope of his agency; or,

3. To do any act which a trustee is forbidden to do'by article II, of
chapter I, of the last title.

§ 1362. Implied authority.] An authority to sell personal
property includes authority to warrant the title of the principal, and
the quality and quantity of the property.

§ 1363. Same as to realty.] An authority to sell and convey real
property includes authority to give the usual covenants of warranty.

§ 1364. Receive price.] A general acent to sell, who is intrusted
by the principal with the possession of the things sold, has authority
to receive the price.

§ 1365. Limited.] A special agent to sell has authority to receive
the price on deliveiy of tne things sold, but not afterwards.

Article III. — Mutual Obligations op Principals and Third Pbrsons.

§1366. Principal AFFECTED BY agent.] An agent represents his
principal for all purposes within the scope of his actual or ostensible
authority, and all the rights and liabilities which would accrue to the
agent from transactions within such limit, if they had been entered
into on his own account, accrue to the principal.

§ 1367. Incomplete execution.] A principal is bound by an incom-
plete execution of an authority, when it is consistent with the whole
purpose and scope thereof, but not otherwise.

§ 1368. Notice to both presumed.] As against a principal, both
principal and agent are deemed to have notice of whatever either has
notice of, and ought, in good faith and the exercise of ordinary care
and diligence, to communicate to the other.

§ 1369. Exceeded authority.] When an agent exceeds his authority,
his principal is bound by his authorized acts so far only as they can
be plainly separated from those which are unauthorized.

§ 1370. Bound by certain acts.] A principal is bound by acts of
his agent, under a merely ostensible authority, to those persons only
who have in good faith, and without ordinary negligence, incurred a
liability, or parted with value, upon the faith thereof.

§ 1371. Principal exonerated.] If exclusive credit is given to an
agent by the person dealing with him, his principal is exonerated by
payment or other satisfaction made by him to his agent, in good faith,

Cipil Code. A^bnct. 891

before receiving notice of the creditor's election to hold him re-
sponsible.

§ 1372. Sbt-opfs AGAiNftT.l One who deals with an agent, without
knowing or having reason to believe that the agent acts as such in the
transaction, may set-off, against any claim of the principal arising out
of the same, all claims which he might have set-off against the agent
before notice of the agency.

§ 1373. Construction of contract.] Any instrument within the
scope of his authority, by which an agent intends to bind his princi-
pal, does bind him, if such intent is plainly inferable from the
mstrument itself.

§ 1374. Agent's nboligencb.] Unless required by or under the
authority of law to employ that particular agent, a principal is re-
sponsible to third persons for the negligence of nis agent in the transac-
tion of the business of the agency, inchiding wrongful acts comniitted
by such agent in, and as a part of the transaction of such business,
and for his.wilfuU ommission to fulfill the obligations of the principal.

§ 1375. For other wrongs.] A principal is responsible for no other
wrongs committed by his agent, than those mentioned in the last
section, unless he has authorized or ratified them, even though they
are committed while the agent is engaged in his service.

Article IV. — Obligations of Agents to Third Persons.

§ 1376. Warranty of authority.] One who assumes to act as an
a^ent thereby warrants, to all who deal with him in that capacity,
that he has the authority which he assumes.

§ 1377. Agent to third persons.] One who assumes to act as an
agent is responsible to third persons as a principal for his acts in the
course of his agency, in any of the following cases, and in no others:

1. When, with his consent, credit is given to him personally in a
transaction.

2. When he enters into a written contract in the name of his
principal, without believing, in good faith, that he has authority to do
so; or,

3. When his acts are wrongful in their nature.

§ 1378. Surrender to third party.] If an agent receives anything
for the benefit of his principal, to the possession of which another
person is entitled, he must^ on demand, surrender it to such person, or
80 much of it as he has under his control at the time of demand, on
being indemnified for any advance which he has made to his principal
in good faith, on account of the same: and is responsible therefor, if,
after notice from the owner, he delivers it to his principal.

§ 1379. Incapacity to contract.] The provisions of this article
are subject to th^ provisions of part one oi the first division of this
code.

Article V. — Delegation of Agency.

•

§ 1380. When authorized.] An agent, unless specially forbidden
by his principal to do so, can delegate nis powers to another person in
any of the following oases, and in no others:

1. When the act to be done is purely mechanical.

392 A^EKOT. Civil Code.

2. When it is such as the agent cannot himself^ and the sub-agent
can, lawfully perform.

3. When it is the usage of the place to delegate such powers; or,

4. When such delegation is specially authorized by the principal.

§ 1381. Agent is peincipal.] If an agent employs a sub-agent
without authority, the former is a principal and the latter his agent,
and the principal of the former has no connection with the latter.

§ 1382. Rightful bub- agent.] A sub-agent, lawfully appointed,
represents the principal in like manner with the original agent; and
the original agent is not responsible to third persons for the acts of
the sub-agenti

Article VI. — Termination of Agency.

§ 1383. Classified causes.] An agency is terminated, as to every
person having notice thereof, by:

1. The expiration of its term.

2. The extinction of its subject.

3. The death of the a^ent.

4. His renunciation ot the agency; or,

5. The incapacity of the agent to act as such.

§ 1384. Other causes.] Unless the power of an agent is coupled
with an interest in the subject of the agency, it is terminated as to
every person having notice thereof, by:

1. Its revocation by the principal.

2. His death; or,

3. His incapacity to contract.

CHAPTER TI.
particular agencies.

Article I. Auctioneers.

II. Factors.

III. Shipmasters and Pilots.

IV. Ship's Managers.

Article I. -Auctioneers.

§ 1385. From seller, limited.] An auctioneer, in the absence of
special authorization or usage to the contrary, has authority from the
seller, only as follows:

1 . To sell by public auction to the highest bidder.

2. To sell for cash only, except such articles as are usually sold on
credit at auction.

3. To warrant in like manner with other agents to sell, according to
section 1362.

Civil Code. Agekct. 398

4 To prescribe reasonable rule;; and terms of sale.

5. To deliver the thing sold, upon payment of the price.

6. To collect the price; and,

7. To do whatever else is necessary, or proper and usual, in the ordi-
nary course of business, for effecting these purposes.

§. 1386. To BIND BOTH PARTIES.] An auctioncer has authority from
a bidder at the auction, as well as from the seller, to bind both by a
memorandum of the contract as prescribed in the title on sale.

Article II. — Factors.

§ 1387. Defined.] A factor is an agent, who is employed to buy or
sell property in his own name, and who is intrusted by his principal
with the possession thereof, as defined in section 1168.

§ 1388. Power beyond agent.] In addition to the authority of
agents in general, a factor has actual authority from his principal,
unless specially restricted :

1. To insure property consigned to him uninsured.

2. To sell, on credit, anything intrusted to him for sale, except such
things as it is contrary to usage to sell on credit; but not to pledge,
mortgage, or barter the same; and,

3. To delegate his authority to his partner, or servant, but not to
any person in an independent employment.

§ 1389. Ostensible authority.] A factor has ostensible authority
to deal with the nroperty of his principal as his own, in transactions
with persons not having notice of the actual ownership.

" .1

Article III. — Shipmasters and pilots.

§ 1890. General agent.] The master of a ship is a general agent
for its owner in all matters concerning the same.

§ 1391. Borrow money.] The master of a ship has authority to
borrow money on the credit of its owner, if it is necessary to enable
him to complete the voyage, and if neither the owner nor his proper
agent for such matters can be consulted without injurious delay.

§ 1392. Agent for owner of cargo.] The master of a ship,
during a voyage, is a general agent for each of the owners of the
cargo, and has authority to do whatever they micht do for the pres-
ervation of their respective interests, except to sell or hypothecate the
same.

§ 1393. To contract.] The master of a ship may procure all its
necessary repairs and supplies, may engage cargo and passengers for
carriage, and in foreign port may enter into a charter-party; and his
contracts for these purposes bind the owner to the full amount of the
value of the ship and freightage.

§ 1394. To HYPOTHECATE.] The master of a ship may hypothecate
the ship, freightage, and cargo, in the cases prescribed by the chapters
on bottomry and respondentia, and in no others.

{$ 1395. To SELL SHIP.] When a ship, whether foreign or domestic,
is seriously injured, or the voyage is otherwise broken up, beyond the
possibility of pursuing it, the master, in case of necessity, may sell
the ship without instructions from the owners, unless by the earliest

31Mr Agisnoy. Cinil Code.

use of ordinary means of coxnmuniQation he can inform the owners,
and await their instructions.

§ 1396. To SELL CARGO. 1 The master of a ship may sell the cargo,
if the voyage is broken up beyond the possibility of pursuing it, and
no other ship can be obtained to carry it to its destination, and the
sale is otherwise absolutely necessary.

§ 1397. To PAY RANSOM.] The master of a ship, in case of its
capture^ may engage to pay a ransom for it, in money or in part of the
cargo, and his engagement will bind the ship, freightage, and car^o.

§ 1398. When power oeasbs.] The power of the master of a ship to
bind its owner, or the owners of the cargo, ceases upon the abanaon-
ment of the ship and freightage to insurers.

§ 1399. Master's personal liability.] Unless otherwise expressly
agreed, or unless the contracting parties give exclusive credit to the
owner, the master of a ship is personally liable upon his contracts
relative thereto, even when the owner is also liable.

I 1400. Same to third persons.] The master of a ship is liable to
third persons for the acts or negligence of persons employed in its
navigation whether appointed by him or not, to the same extent as
the owner of the ship.

§ 1401. Responsibility for pilot.] The owner or master of a ship
is not responsible for the negligence of a pilot whom he is bound by
law to employ; but if he is allowed an option between pilots, some of
whom are competent, or is required only to pay compensation to a
pilot whether he employs him or not, he is responsible to third persons.

Article IV. — Ship's JiIanagbrs.

§ 1402. Power to contract.] A ship's manager has power to make
contracts requisite for the performance of his duties as such; to enter
into charter-parties, or make contracts for carriage; and to settle for
freightage and adjust averages.

§ 1403. Limitation of same.] Without special authority, a ship's
manager cannot borrow money, or give up the lien for freightage, or
purchase a cargo, or bind the owners of the ship to ai} insurance.

Civil Code. Partnership. 895

TITLE X,

PARTNERSHIP.

Chapter I. Partnership in General.
II. General Partnership.
III. Special Partnership.

CHAPTER I.
partnership in general.

Article I. What Constitutes a Partnership:

11. Partnership Property.

III. Mutual Obligations of Partners.

rV. Renunciation of Partnership.

Article I. — What Constitutes a Partnership.

§ 1404. Definition.] Partnership is the association of two or more
persons, for the purpose of carrying on business together, and dividing
its profits between them.

§ 1405. Ship owners.] Part owners of a ship do not, by simply
using it in joint enterprise, become partners as to the ship.

§ 1406. Consent necessary.] A partnership can be formed only by
the consent of all the parties thereto, and tnerefore no new partner
can be admitted into a partnership without the consent of every
existing member thereof.

Article II.— PARtNERSHip Property.

§ 1407. Consist of what.] The property of a partnei-ship consists
of all that is contributed to the common stock at the formation of the
partnership, and of all that is subsequently acquired thereby.

§ 1408. Interest in all.] The interest of each member of a part- "5
nership, extends to every portion of its property, O

§ 1409. Share in profits and losses.] In the absence of an agree-
ment on the subject; the shares of partners in the profits or loss of
the business are equal, and the share of each in the partnership prop-
erty is the value of his original contribution, increased or diminished
by his share of profit or loss.

3d§ PxuTJimaismT. * Civil Code.

§ 1410. Implied division of loss.] -An agreement to divide the
profits of a business implies an agreement for a corresponding division
of its losses, unless it is otherwise expressly stipulated.
. § 1411. Property applies to debts.] Each member of a partner-
ship may require its property to be applied to the discharge of its
debts, and has a lien upon the shares of the other partners for this pur-
pose, and for the payment of the general balance, if any, due to him.

§ 1412. Presumption.] Property, whether real or personal, acquired
with partnership funds, is presumed to be partnership property.

Article III. — Mutual Obligations of Partners.

§ 1413. Are trustees.] The relations of partners are confidential.
They are trustees for each other, within the meaning of chapter I of
the title on trusts. Their obligations as such trustees, are defined by
that chapter.

§ 1414. Good faith required.] In all proceedings connected with
the formation, conduct, dissolution, and liquidation of the partnership,
every partner is bound to aot in the highest good faith toward his
copartners. He may not obtain any advantage over them in the
partnership affairs by the slightest misrepresentation, concealment,
threat, or adverse pressure of any kind.

§ 1415. Mutual liability.] Each member of a partnership must
account to it for everything that he receives on account thereof, and
is entitled to reimbursement therefrom for every thing that he properly
expends for the benefit thereof, and to be indemnified thereby for
all losses and risks which he necessarily incurs on its behalf.

§ 1416. No Compensation.] A partner is not entitled to any com-
pensation for services rendered by him to the partnership.

Article IV. Renunciation of Partnership.

§1417. Of profits- exonerates.] A partner may exonerate him-
self from all future liability to a third person on account of the part-
nership, by renouncing, in good faith, all participation in its future
profits, ana giving notice to such third person, and to his own copartners^
that he has made such renunciation, and that, so far as may be in his
power, he dissolves the partnership, and does not intend to be liable on
account thereof for the future.

§ 1 418. Effect of.] After a partner has given notice of his renuncia-
tion of the partnei'ship, he cannot claim any of its subsequent profits,
and his copartners may proceed to dissolve the partnership.

\

Ciml Code, PartnbR8HI1p. 897

CHAPTER IL

QKNERAL PARTNERttHIP

Article I. What is a General Partnerghip.

II. Powers and Authority of Partners.

III. Mutual Obligations of Partners.

IV. Liability of rartners.

V. Termination of Partnership.

VI. Liquidation.

VII. Of the Use of Fictitious Names.

Article I. — What is a*Genbral Partnership.

§ 1419. Definition.] Every partnership that is not formed in
accordance with the law concerning special partnership, and every
special partnership, so far only as the general partners are concerned,
is a general partnership.

Article II.— Powers and Authority of Partners.

§ 1420. Majority govern.] Unless otherwise expressly stipulated,
the decision of the majority of the members of a general partnership
binds it in the cmiduct of its business.

§ 1421. Each a general, agent.] Every general partner is agent
j for the partnership in the transaction of its business, and has authority
' to do whatever is necessary to carry on such business in the ordinary
manner, and for this purpose may bind his copartners by an agreement
in writing.

§ 1422. Limitation's oLAesiFiSD.] A • partner, as such, has not
authority to do any of the following acts, unless his copartners have
wholly abandoned the business to him, or are incapable of acting:

1. To make an assignment of the partnership property, or any por-
tion thereof, to a cremtor^ or to a tbird person m trust for the benefit
«€ ^ creditor, or of all creditors.

2. To dispose of the good will of the business.

3. To dispose of the whole of the partnership property at once,
unless it consisfts entirely of merchandise.

4. To do any act which would make it impossible to carry on the
ordinary business of the partnership.

5. To confess a judgment.

6. To submit a partnership claim to arbitration; or,

7. To do any other act not within the scope of the preceding section.
§ 1498. Bad faith ineffectual.] A partner is not bound by any act

of a copartner in bad faith towards him, though within the scope of a
partners powers, except in favor of persons who have in good faith
parted with value ii^ reliance upon such act.

398 Partnership. Civil Code.

Article III. — Mutual Obligations of Partners.

§ 1424. Profits to firm. ) All profits made by a general jjartner, in
the course of any busines usually carried on by the partnership, belong
to the firm.

*§ 1425. No ADVERSE INTEREST.] A general partner, who agrees to
give his personal attention to the business of the partnership, may not
engage in any business which gives him an interest adverse to that of
the partnership, or which prevents him from giving to such business
all tne attention which would be advantageous to it.

§ 1426. Exception.] A partner may engage in any separate
business, except as otherwise provided by the last two sections.

§ 1427. Must account.] A general partner, transacting business
contrary to the provisions of this article, may be required by any
copartner to account to the partnership for the profits of such
business.

Article IV. — Liability of Partners.

§ 1428. Liable to third person.] Everv general partner is liable
to third persons for all the obligations of the partnership, jointly with
his copartners.

§ 1429. For each other's acts.] The liability of general partners
for each other's acts is defined by the title on agency.

§ 1430. Of one held out as partners.] Any one permitting him-
self to be represented as a partner, general or special, is liable as such
to third persons to whom such representation is communicated, who
on the faith thereof give credit to the partnership.

§ 1431. Not liable.] No one is liable as a partner, who is not such
in fact, except as provided by the last section.

Article V. — Termination of Partnership.

§ 1432. Duration.] If no term is prescribed by agreement for its
duration, a general partnership continues until dissolved by a partner
or by operation of law.

§ 1433. Causes of dissolution.] A general partnership is dissolved,
as to all the partners:

1. By lapse of the time prescribed by agreement for its duration.

2. By tne expressed will of any partner, if there is no such
agreement.

3. By the death of a partner.

4. By the transfer, to a person not a partner, of the interest of any
partner in the partnership property.

5. By war, or the prohibition of commercial intercourse between
the country in which one partner resides and that in which another
resides; or,

6. By a judgment of dissolution.

§ 1434. Partial dissolution.] A general partnership may be
dissolved, as to himself only, by the expressed will of any partner,
notwithstanding his agreement for its continuance; subject^ however,
to liability to his co-partners for any damage caused to them thereby.

Civil Code. Pabtj*br8HIP. 399

unless the circumstances are such as entitle him to a judgment of
dissolution.

§ 1435. Judgment of dissolution.] A general partner is entitled
to a judgment of dissolution:

1. When he, or another partner, becomes legally incapable of con-
tracting.

2. When another partner fails to perform his duties under the
agreement of partnership, or is guilty of serious misconduct; or,

3. When the business of the partnership can be carried on only at a
permanent loss.

§ 1436. Notice of termination.] The liability of a general partner
for the acts of his co-partners continues, even after a dissolution of the
partnership, in favor of persons who have had dealings with, and
given credit to, the partnership, during its existence, until they have
nad personal notice of the dissolution, and in favor of other persons,
until such dissolution has been advertised in a newspaper published in
every county where the partnership, at the time of its dissolution, had
a place of business; to the extent, in either case, to which such persons
part with value, in good faith, and in the belief that such partner is
still a member of the firm.

§ 1437. Notice of change.] A change of the partnership name
which plainly indicates the withdrawal of a partner, is a sufficient
notice of the fact of such withdrawal to all persons to whom it is com-
municated. But a change in the • name whicB does not contain such
an indication is not notice of the withdrawal of any partner.

Article VI. — Liquidation.

§ 1488. Powers after dissolution.! After the dissolution of a
partnership, the powers and authority oi the partners are such only as
are prescrioed by this article.

§ 1439. Who may act.] Any member of a general partnership
may act in liquidation of its affairs, except as provided by the next
section.

§ 1440. Who not.] If the liquidation of a partnership is committed,
by consent of all the partners, to one or more of them, the others
have no ri^ht to act therein; but their acts are valid in favor of
persons parting with value, in good faith, upon the credit thereof.

§ 1441. Power while acting.] A partner authorized to act in liqui-
dation may collect, compromise, or release any debts due to the
partnership, pay or compromise any claims against it, and dispose of
the partnership property.

. § 1442. Partner's power in liquidation.] 1. A partner authorized
to %ct in liquidation, may indorse, in the name of the firm, promissory
notes, or other obligations held by the partnership, for the purpose of
collecting the same, but he cannot create any new obligation in
its name, or revive a debt against the firm, by an acknowledgment,
when an action thereon is barred under the provisions of the code of
civil procedure.

2. On the death of a partner, the surviving partners. succeed to all
the partnership property, whether real or personal, in trust for the
purposes of liquidation, even though the deceased was appointed, by

oHlj

Partnership.

Ciml Code.

Article III. — Mutual Oblt

§ 1424. Profits to firm.) Al^
the course of any busines usup '
to the firm.

J§ 1425. No ADVERSE r
give his personal attenti
^^g^'ge in any business
the partnership, or w^
all tne attention wh *

§ 1426. Except
business, except j

§1427. Must

, the deceased in the
;/is passes to those who

*•

^/'icTiTious Names.

contrary to th
copartner to
business.

.t*''^

^jpj Except as otherwise provided
. 'V//ip transacting business in this
/ ^,^or a designation not showing the
. ;:^ partners in such business, must file
Y^^-ourt of the county or subdivision in
- '/jusiness is situated, a certificate, stating
. c;:'^ fliembers of such partnership, and their
.. If^iish the same once a week for K)ur succes-
• ' /jdr published in the county, if there be one,
"""^^ach county, then in a newspaper published in

^ §14?
bis c

*u."'-* ^ijtnbbs^iP'] a commercial or banking partner-
^ />:i'*^j transacting business in a place witnout the
. .^f^^ ^'Vithout filing the certificate or making the publi-
..•'>^^'io the last section, use in this territory the
^x'*'^^^ used by it there, although it be fictitious, or do not
*' J^/' ^^'^of the persons interested as partners in such business.
,. '^"!'xi*^f,^^^wEi'i>c^MBNT- -Penalty.] The certificate filed with
_/A **^iV j%e district court, as provided in section 1443, must be
^ - ^:/c»r* v^ partners, and acknowledged before some officer author-
f'-'lt '*-Vp acKi^^^l^^&^®^* of conveyances of real property. Where

.r/^:fiA'e»<5

Jj^'f rtjf^^^bip i^^ hereafter formed, the certificate must be filed, and
ii*"* /'^icHtion designated in that section must be made within one
i/i*' i^^ lifter the formation of the partnership, or within one month
t^^'j^f'Sj^ time designated in the agreement of its members for the
^^\^3 ^jjcement of the partnership; where the partnership has been
^}}>^^foYe formed, the certificate must be filed and the publication
\te^^ ^ithin six months after the passage of this act. Persons doing
^^^^j5S as partners contrary to the provisions of this article, shall not
>>**^'^ntain any action upon or. on account of any contracts made or
ii^^^gactions had in their partnership name, in any court of this terri-
^^ry u'^**^^ ^^®y have first filed the certificate and made the publication
herein required.

§ 1446. New certificate.] On every chang[e in the members of a
partnership transacting business in this territory under a fictitious
^fljne, or designation which does not show the names of the persons
interested as partners in the business, except in the cases mentioned
in section 14M, a new certificate must be nled with the clerk of the
district court, and a new publication made as required by this article
on the formation of such partnership.

§ 1447. Registry of firms.] Every clerk of the district court must
keep a register of the names of firms and persons mentioned in the
certificates filed with him, pursuant to this article, entering in alpha-
betical order the name of every such partnership and of each partner
therein.

^ivil Code. Partnership. 401

' 1448. Copies evidence.] Copies of the entries of a clerk of the

'ct court, aslierein directed, when certified by him, and affidavits

'lication, as herein directed, made by the printer, publisher, or

'f^rk of a newspaper, are presumptive evidence of the facts

. stated.

CHAPTER III.

special partnership.

Article I. Formation of the Partnership.

II. Powers, Rights and Duties of the Partners.

III. Liability of Partners.

IV. Alteration and Dissolution of the Partnership.

Article I. — Formation of the Partnership.

§ 1449. How FORMED.] A special or limited partnership may be
formed by two or more persons in the manner and with the eflfect
prescribed in this chapter, for the transaction of any business, except
bankinff or insurance.

§ 1450. Constitution of.] A special partnership may consist of one
or more persons, called general partners, and one or more persons
called special partners.

§ 1451. Certified statement.] Persons desirous of forming a
special partnership must severally sign a certificate, stating:

1. The name under which such partnership is to be conducted.

2. The general nature of the business intended to be transacted,

3. The names of all the partners, and their residences, specifying
which are general and which are special partners.

4. The amount of capital which each special partner has contributed
to the common stock; and,

5. The periods at which such partnership will begin and end.

§ 1452. Acknowledged and piled.] Certificates under the last
section must be acknowledged by all the partners, before some officer
authorized to take acknowledgment of deeds, one to be filed in the
office of the clerk of the district court of the county or subdivision,
and the other recorded in the office of the register of deeds of the
county in which the principal place of business of the partnership is
situated, in a book to oe kept for that purpose, open to public inspec-
tion; and if the partnership has places of business situated in different
counties, a copy of the certificate, certified by the register of deeds in
whose office it is recorded, must be filed in the clerk's office as afore-
said, and recorded in like manner in the office of the register of deeds
in every such county. If any false statement is made in any such cer-
tificate, all the persons interested in the partnership are liable, as
general partners, for all the engagements thereof.

26

'402 Partnership. Civil Code.

§ 1453. Sums contributed.] AlU aflSdavit of each of the partners,
stating that the sums specified in the certificate of the partnership as
having been contributed by each of the special partners, have been
actuafly and in good faith paid in the lawful money of the United
States, must be filed in the same oflBice with the original certificate.

§ 1454. Compliance required.] No special partnership is formed
until the provisions of the last Jive [three] sections are complied
with.

§ 1455. Certificate published.] The certificate mentioned in this
article, or a statement of its substance, must be published in a news-
paper printed in the county where the original certificate is filed, and
if no newspaper is there printed, then in a newspaper in the territory
nearest thereto. Such publication must be made once a week for four
successive weeks, beginning within one week from the time of filing
such certificate. In case tne publication is not so made, the partner-
ship must be deemed general.

§ 1456. Affidavit filed.] An affidavit of publication pursuant to
the preceding section, made by the printer, publisher, or chief clerk of
a newspaper, may be filed with the register of deeds with whom the
original certificate was filed, and is presumptive evidence of the facts
therein stated.

§ 1457. Renewal — same method.] Every renewal or continuance
of a special partnership must be certified, recorded, verified, and
published in the same manner as upon its original formation.

Article II. — Powers, Rights and Duties of the Partners.

§ 1458. Style of special partnership.] The business of a special
partnership must be conducted under a name, consisting of the names
or surnames of one or more of the general partners only, with or
without the addition of the words " and company," or " & Co." Such
partnership shall put up in some conspicuous place, on the outside, and
in front oi the building in which it has its chief place of business,
some sign on which shall be painted, in legible English charactiers, all
the names of all the members of such partnership, designating the
special partners.

§ 1459. Who do business.] The general partners only have
authority to transact the business of a special partnership.

§ 1460. Relations of special partner.] A special partner may at
all times investigate the partnership affairs, and advise his partners or
their agents as to their management.

§ 1461. May loan to firm.] A special partner may lend money to
the partnership, or advance money for it, and take from it security
therefor, and as to such loans or advances, has the same rights as any
other creditor; but, in case of the insolvency of the partnership, all
other claims which he may have against it must be postponed until all
other creditors are satisfied.

§ 1462. Who sue and are sued.] In all matters relating to a"
special partnership, its general partners may sue and be sued alone, in
the same manner as if there were no special partners.

§ 1463. Withdrawal of capital.] No special partner, under any
pretense, may withdraw any part of the capital invested by him in the
partnership during its continuance.

Civil Code. Partnership. 403

§ 1464. May draw profits.] A special partner may receive such
lawful interest, and such proportion of profits, as may be agreed upon,
if not paid out of the capital invested in the partnership by him, or by
some other special partner, and is not bound to refund the same to
meet subsequent losses.

§ 1465. Becomes general partner.] If a special partner withdraws
capital from the firm, contrary to the provisions of this article, he
thereby becomes a general partner.

§ 1466. Preferential transfers.] Every transfer of the property
of a special partnership, or of a partner therein, made after or in con-
templation of the insolvency of such partnership or partner, with
intent to give a preference to any creditor of such partnership or
partner, over any other creditor of such partnership, is void against
the creditors thereof; and every judgment confessed, lien created, or
security given, in like manner and with the like intent, is in like
manner void.

Article III. — Liability of Partners.

§ 1467. Liability general partners.] The general partners in a
special partnership, are liable to the same extent as partners in a
general partnership.

§ 1468. Of special partners.] The contribution of a special partner
to the capital of the firm, and the increase thereof, is liable for its
debts, but he is not otherwise liable therefor, except as follows :

1. If he has willfully made or permitted a false or materially defec-
tive statement in the certificate of the partnership, the affidavit filed
therewith, or the published announcement thereof, he is liable as a
general partner to all the creditors of the firm.

2. If he has willfully interfered with the business of the firm, except
as permitted in article II of this chapter, he is liable in like manner;
or,

3. If he has willfully joined in or assented to an act contrary to
any of the provisions of article II of this chapter, he is liable in like
manner.

§ 1469. Same.] When a special partner has unintentionally done
any of the acts mentioned in the last section, he is liable as a general
partner to any creditor of the firm who has been actually misled
thereby to his prejudice.

§ 1470. Questioning existence of.] One who, upon making a
contract with a partr^ership, accepts from or gives to it a written
memorandum of the contract, stating that the partnership is special,
and giving the names of the special partners, cannot afterwards charge
the persons thus named as general partners upon that contract, by
reason of an error or defect in the proceedings for the creation of the
special partnership, prior to the acceptance of the memorandum, if
an effort has been made by the partners, in good faith, to form a
special partnership in the manner required by law.

Article IV. — Alteration and Dissolution.

§ 1471. Special becomes general.] A special partnership becomes
general, if, within ten days after any partner withdraws from it, or
any new partner is received into it, or a change is made in the nature

4()4 Insuranos. Civil Code.

of its business, or in its name, a certificate of such fact, duly verified
and signed by one or more of the partners, is not filed with the clerk
of the district court and the register of deeds, with whom the original
certificate of the partnership was filed, and notice thereof published
as is provided in article I of this 'chapter for the publication of the
certificate.

§ 1472. New partnbbs.] New special partners may be admitted
into a special partnership, upon a certificate, stating the names, resi-
dences, and contributions to the common stock of each of such part-
ners, signed by each of them and by the general partners, verified,
acknowledged, or proved, and filed with the clerk, and recorded in the
register's office in which the original certificate was filed, according to
the provisions of article I of this chapter.

§ 1473. Dissolution — notice.] A special partnership is subject to
dissolution in the same manner as a general partnership, except that
no dissolution by the act of the partners is complete, until a notice
thereof has been tiled and recorded in the office of the register of
deeds with whom the original certificate was recorded^ and filed in
the office of the clerk of the district court, and published once in
each week, for four successive weeks, in a newspaper printed in each
county where the partnership has a place of business.

TITLE XL

INSURANCE.

Chapter I. Insurance in General.

11. Marine Insurance.

III. Fire Insurance.

IV, Life and Health Insurance,

CHAPTER 1.
insurance in general.

Article I. Definition of Insurance.
II. What May be Insured.

Article I. — Definition of Insurance.

§ 1474. Contract to indemnify.] Insurance is a contract whereby
one undertakes to indemnify another against loss, damage or liability,
arising from an unknown or contingent event.

Civil Code, Inbubakce. 405

Article II. — What may be Insured.

§ 1475. Insurable interest.] Any contingent or unknown event,
whether past or future, which may damnify a person having an insur-
able interest or create a liability against him, may be insured against,
subject to the provisions of this chapter, with the exception of an
insurance for or against the drawing of any lottery, or for or against
anv chance or ticket in a lottery drawing a prize.

§ 1476. Insurance classed.] Tne most usual kinds of insurance
are:

1. Marine insurance.

2. Fire insurance.

3. Life insurance.

4. Health insurance; and,

5. Accident insurance.

§ 1477. Law general,] All kinds of insurance are subject to the
provisions of this chapter.

Article III. — Parties to the Contract.

§ 1478. Insurer.] The person who undertakes to indemnify
another by a contract of insurance, is called the insurer, and the per-
son indemnified is called the insured.

§ 1479. Who may insure.] Any one who is capable of making a
contract may be an insurer, subject to the restrictions imposed by
special statutes upon foreign corporations, non-residents and others.

§ 1480. Who be insured.] Any one except a public enemy may be
insured.

§ 1481. Of mortgaged property.] Where a mortgagor of property
effects insurance in his own name, providing that tne loss shall be
payable to the mortgagee, or assigns a policy of insurance to the mort-
gagee, the insurance is deemed to be upon the interest of the
mortgagor, who does not cease to be a party to the original contract,
and any act of his which would otherwise avoid the insurance will
have the same effect, although the property is in the hands of the
mortgagee.

§ 1482. Same.] If an insurer assents to the transfer of an insur-
ance from a mortgagor to a mortgagee, and, at the time of his assent,
imposes further obligations on tne assignee, makinj^ a new contract
with him, the acts of the mortgagor cannot affect his rights.

Article IV. — Insurable Interest.

§ 1483. Definition.] Every interest in property, or any relation
thereto, or liability in respect thereof, of such a nature that a con#
templated peril might directly damnify the insured, is an insurable
interest.

§ 1484. Classified.] An insurable interest in property may con-
sist in:

1. An existing interest.

2. An inchoate interest founded on an existing interest: or.

3. An expectancy, coupled with an existing interest in that out of
which the expectancy arises.

406 Insubanoe. Civil Code.

§ 1485. Carrier, &c., has.] A carrier or depositary of any kind has
an insurable interest in a thing held by him as such, to the extent of
its value.

§ 1486. Not insurable.] A mere contingent or expectant interest
in anything, not founded on an actual right to the thing, nor upon any
valid contract for it, is not insurable.

§ 1487. Measure of interest,] The measure of an insurable inter-
est in property is the extent to which the insured might be damnified
by loss or injury thereof.

§ 1488. Without interest void.] The sole object of insurance is
the indemnity of the insured, and if he has no insurable interest the
contract is void.

§ 1489. Must exist — when.] An interest insured must exist when
the insurance takes effect and when the loss occurs, but need not
exist in the meantime.

§ 1490. Effect of transfer.] Except in the cases specified in the
next four sections, and in the cases of life, accident, and health insur-
ance, a change of interest in uny part of a thing insured, unaccompanied
by a corresponding change of interest in the insurance, suspends the
insurance to an equivalent extent^ until the interest in the thing and
the interest in the insurance are vested in the same person.

§ 1491. Transfer after loss.] A change of interest in a thing
insured, after the occurrence of an injury which results in a loss, does
not afi'ect the right of the insured to indemnity for the loss.

' § 1492. Exception.] A change of interest in one or more of several
distinct things, separately insured by one policy, does not avoid the
insurance as to the others.

§ 1493. Same by death.] A change of interest, by will or succes-
sion, on the death of the insured, does not avoid an insurance; and his
interest in the insurance passes to the person taking his interest in the
thing insured.

§ 1494. By joint owners — bvidbnob.] 1. A transfer of interest by
one of several partners, joint owners, or owners in common, who are
jointly insured to the others, does not avoid an insurance, even though
it has been agreed that the insurance shall cease upon an alienation of
the thing insured.

2. Every stipulation in a policy of insurance for the payment of loss,
whether the person insured nas or has not any interest in the prop-
erty insured, or that the policy shall be received as proof of such
interest, and every policy executed by way of gaming or wagering,
is void.

Article V. — Concealment and Representation.

p § 1495. Definition.] A neglect to communicate that which a party
knows, and ought to communicate, is called a concealment.

§ 1496. Effect of.] A concealment, whether intentional or unin-
tentional, entitles the injured party to rescind a contract of insurance.

§ 1497. ItfuTUAL DISCLOSURES.] Each party to a contract of insur-
ance must communicate to the other in good faith, all facts within his
knowledge which are, or which he believes to be, material to the
contract, and which the other has not the means of ascertaining, and
as to which he makes no warranty.

Civil Code. iNstnEunros. 407

■

§ 1498. Not bound to disclose.] Neither party to a contract of
insurance is bound id communicate information of the matters follow-
ing, except in answer to the inquiries of the other:

1. Those which the other knows.

2. Those which, in the exercise of ordinary care, the other ought
to know, and of which the former has no reason to suppose him
ignorant.

3. Those of which the other waives communication.

4. Those which prove or tend to prove the existence of a risk
excluded by a warranty, and which are not otherwir^e material; and,

5. Those which relate to a risk excepted from the policy, and which
are not otherwise material.

§ 1499. Legal construction]. Materiality is to be determined not
by the event, but solely by the probable and reasonable influence of
the facts upon the party to whom the communication is due, in form-
ing his estimate of the disadvantages of the proposed contract or in
making his inquiries.

§ 1500. Presumed knowledge.] Each party to a contract of
insurance is bound to know all the general causes which are open to
his inquiry, ecjually with that of the other, and which may effect
either the political or material perils contemplat;ed, and all general
usages of trade.

§ 1501. Right waived.] The right to information of material
facts may be waived, either by the terms of insurance, or by neglect
to make inquiries as to such facts, where they are distinctly implied
in other facts of which information is communicated.

§ 1502. Only on inquiry.] Information of the nature or amount of
the* interest of one insured need not be communicated unless in
answer to inquiry, except as prescribed by section 1518.

§ 1508. Fraud.] An intentional and fraudulent omission, on the
part of one insured, to communicate information of matters proving
or tending to prove the falsity of a warranty, entitles the insurer to
rescind.

§ 1504. Matters of opinion.] Neither party to a contract of
insurance is bound to communicate, even upon inquiry, information
of his own judgment upon the matters in question.

§ 1505. Form.] A representation may be oral or written.

§ 1506. When made.] A representation may be made at the same
time with issuing the policy, or before it

§ 1507. Interpretation.] The language of a representation is to
be interpreted by the same rules as the language of contracts in
general.

§ 1508. As TO future.] A representation as to the future is to
be deemed a promise, unless it appears that it was merely a statement
of belief or expectation.

§ 1509. Qualify implied warranty.] A representation cannot be
allowed to qualify an express provision in a contract of insurance;
but it may qualify an implied warranty.

§ 1510. When withdrawn.] A representation may be altered or
withdrawn before the insurance is effected, but not afterwards.

§ 1511. Reference.] The completion of the contract of insurance
is the time to which a representation must be presumed to refer.

408 {nsuranob. Civil Code,

§ 1512. Information and belief.] When a person insured has no
personal knowledge of a fact, he may nevertheless repeat information
which he has upon the subject, and which he believes to be true, with
the explanation that he does so on the information of others, or he
may submit the information, in its whole extent, to the insurer; and
in neither case is he responsible for its truth, unless it proceeds froto
an agent of the insured whose duty it is to give the intelligence.

§ 1513. Falsity.] A representation is to be deemed false when the
facts fail to correspond with its assertions or stipulations.

§ 1514. Effect of falsity.] If a representation is false in a
material point, whether affirmative or promissory, the injured party is
entitled to rescind the contract from the time when the representation
becomes false.

§ 1515. Rule.] The materiality of a representation is determined
by the same rule as the materiality of a concealment.

§ 1516. Provisions apply — rescission.] 1. The provisions of this
article apply as well to a modification of a contract of insurance as to
its original formation.

2. Whenever a right to rescind a contract of insurance is given to
the insurer by any provision of this chapter, such right may oe exer-
cised at any time previous to the commencement of an action on the
contract.

Article VI. — The Policy.

§ 1517. Definition.] The written instrument, in which a contract
of insurance is set forth, is called a policy of insurance.

§ 1518. Essential specifications.] A policy of insurance must
specify:

1. The parties between whom the contract is made.

2. The rate of premium.

3. The property or life insured.

4. The interest of the insured in property insured, if he is not the
absolute owner thereof.

5. The risks insured against; and,

6. The period during which the insurance is to continue.

§ 1519. Effect of name.] When the name of the person intended
to be insured is specified in a policy, it can be applied only to his own
proper interest.

§ 1520. By trustee or agent.] When an insurance is made by an
agent or trustee, the fact that his principal or beneficiary is the
person really insured, may be indicated by describing him as an agent
or trustee, or by other general words in the policy.

§ 1521. Terms must include.] To render an insurance, effected by
one partner or part owner, applicable to the interest of his copartners,
or 01 other part owners, it is necessary that the terms of the policy
should be such as are applicable to the joint or common interest.

§ 1522. Specific person.] When the description of the insured in
a policy is so general that it may comprehend any person, or any class
of persons, he only can claim the benefit of the policy who can show
that it was intended to include him.

Civil Code. Insuranos. 409

§ 1523. May run to whomsoever.] A policy may be so framed that
it will inure to the benefit of whomsoever, during the continuance of
the risk, may become the owner of the interest insured.

§ 1524. Transfer.] The mere transfer of a thing insured does not
transfer the policy, but suspends it until the same person becomes
owner of both policy and the thing insured.

§ 1525. Classes.] A policy is either open or valued.

§ 1526. To BE ASCERTAINED.] An opcu policy is one in which the
value of the thing insured is not agreed upon, but is left to be ascer-
tained in case of loss.

§ 1527. Agreed value.] A valued policy is one which expresses on
its face an agreement that the thing insured shall be valued at a
specified sum.

§ 1528. Successive insurance.] A running policy is one which
contemplates successive insurance^, and which provides that the
object of the policy may be from time to time defined, especially as to
the subjects of insurance, by additional statements or indorsements.

§ 1529. Effect of receipt.] An acknowledgment in a policy of the
receipt of premium is conclusive evidence of its payment, so far as to
make the policy binding, notwithstanding any stipulation therein that
it shall not be binding until the premium is actually paid.

§ 1530. Void agreement.] An agreement made before a loss, not
to transfer the claim of a person insured against the insurer, after the
loss has happened, is void.

Article VII. — Warranties.

§ 1531. Classified.] A warranty is either express or implied.

§ 1532. No FORM.] No particular form of words is necessary to
create a warranty.

§ 1533. Express to be written.] Every express warranty, made at
or before the execution of a policy, must be contained in the policy
itself, or in another instrument signed by the insured and referred to
in the policy, as making a part of it.

§ 1534. Time.] A warranty may relate to the past, present, the
future, or to any or all of these.

§ 1535. Construction.] A statement in a pones'^, of a matter relating
to the person or thing insured, or to the risk, as a fact, in an express
warranty thereof.

§ 1536. Intention means act.] A statement in a policy, which
imports that it is intended to do or not to do a thing which materially
affects the risk, is a warranty that such act or omission shall take
place.

§ 1537. Omission does not void.] When, before the time arrives
for the performance of a warranty relating to the future, a loss
insured against happens, or performance becomes unlawful at the place
of the contract, or impossible, the omission to fulfill the warranty does
not avoid the policy.

§ 1538. May rescind.] The violation of a material warranty, or
other material provisions of a policy, on the part of either party
thereto, entitles the other to rescind.

410 Insttbanob. Civil Code.

§ 1589. What avoids.] A policy may declare that a violation of
specified provisions thereof, shall avoid it; otherwise the breach of an
immaterial provision does not avoid the policy.

§ 1540. Breach without fraud.] A breach of warranty, without
fraud, merely exonerates an insurer from the time that it occurs, or
where it is broken in its inception, prevents the policy from attaching
to the risk.

Article VIII. — Premium.

§ 1541; When payable.] An insurer is entitled to payment of the
premium as soon as the thing insured is exposed to the peril insured
against.

§ 1542. Return when.] A person insured is entitled to a return of
premium, as follows:

1. To the whole premium, if no* part of his interest in the thing
insured be exposed to any of the perils insured against.

2. Where the insurance is made for a definite period of time, and
the insured surrenders his policy to such proportion of the premium
as corresponds with the unexpired time, after deducting from the
whole premium any claim for loss or damage under the policy which
has previously accrued.

§ 1543. Same.] A person insured is entitled to a return of the pre-
mium when the contract is voidable, on account of the fraud or
misrepresentation of the insurer, or on account of facts, of the
existence of which the insured was ignorant without his fault; or
when, by any default of the insured other than actual fraud, the
insurer never incurred any liability under the policy.

§ 1544. Not so far as risk.] If a peril insured against has existed,
and the insurer has been liable for any period, however short, the
insured is not entitled to return of premiums, so far as that particular
risk is concerned.

§ 1545. Ratable return.] In case of an over-insurance by several
insurers, the insurer is entitled to a ratable return of the premium,
proportioned to the amount by which the afi^greeate sum insured in all
the policies exceeds the insurable value of the tiling at risk.

§ 1546. Contribution.] When an over-insurance is affected by
simultaneous policies, the insurers contribute to the premium to be
returned, in proportion to the amount insured by their respective
policies.

§ 1547. Same.] When an over-insurance is affected by successive
policies, those only contribute to a return of the premium, who are
exonerated by prior insurances from the liability assumed by them,
and in proportion as the sum for which the premium was paid exceeds
the amount for which, on account of prior insurance, they could be
made liable.

Article IX. — Loss.

§ 1548. When insurer liable.] An insurer is liable for a loss of
which a peril insured against was the proximate cause; although a
peril not contemplated by the contract may have been a remote cause
of the loss: but he is not liable for a loss of which the peril insured
against was only a remote cause.

Cwil Code. Insitranoe. 411

§ 1549. In other cases.] An insurer is liable where thfe thin^ insured
is rescued from a peril insured against, that would otherwise have
caused a loss, if in the course of such rescue the thing is exposed to
peril, not insured against, which permanently deprives the insured of
its possession, in whole or in part; or where a loss is caused by eflForts
to rescue the thing insured from a peril insured against.

§ 1550. Exception includes consequences.] Where a peril is
specially excepted in a contract of insurance, a loss, which would not
have occurred but for such peril, is thereby excepted; although the
immediate cause of the loss was a peril, which was not excepted.

§ 1551. Acts of insured — effect of.] An. insurer is not liable for
a loss caused by the willful act of the insured; but he is not exonerated
by the negligence of the insured, or of his agents or others.

Article X. — Notice of Loss.

§ 1552. No unnecessary delay.] In case of loss upon an insurance
againt fire, an insurer is exonerated, if notice thereof be not given to
him by some person insured, or entitled to the benefit of the insurance,
without unnecessary delay.

§ 1553. Best in his power.] Where preliminary proof of loss is
required by a policy, the insured is not bound to give such proof as
would be necessary in a court of justice; but it is sufficient for him to
give the best evidence which he has in his power at the time.

§ 1554. Waiver of defects.] All defects in a notice of loss, or in
preliminary proof thereof, which the insured might remedy, and which
the insurer omits to specify to him, without unnecessary delay, as
grounds of objection, are waived.

§ 1555. Waiver of delays.] Delay in the presentation to an insurer
of notice or proof of loss is waived, if causea by any act of his, or if
he omits to make objection promptly and specifically upon that ground.

§ 1556. Reasonable diligbnpe.] If a policy requires, by way of
preliminary proof of loss, the certificate or testimony of another
pereon than tne insured, it is sufficient for the insured to use reason-
able diligence to procure it, and in case of the refusal of such person
to give it, then to furnish reasonable evidence to the insurer that such
refusal was not induced by any just grounds of disbelief in the facts
necessary to be certified.

Article XI. — Double Insurance.

§ 1557. Definition. A double insurance exists where the same
person is insured by several insurers seperately in respect to the same
subject and interest.

§ 1558. Order of liability.] In case of double insurance, the
several insurers are liable to pay losses thereon as follows:

1. In fire insurance, each insurer must contribute ratably towards
the loss, without regard to the dates of the several policies.

2. In marine insurance, the liability of the several insurers for a total
loss, whether actual or constructive, where the policies are not simul-
taneous, is in the order of the dates of the several policies; no liability
attaching to a second or other subsequent policy, except as to the

412 Insurance. Civil Code.

excess of the Joss over the amount of all previous policies on the same
interest. If two or more policies bear date upon the same day, they
are deemed to be simultaneous, and the liability of insurers on simul-
taneous policies is to contribute ratably with each other. The
insolvency of any of the insurers does not aflfect the proportionate
liability of the other insurers. The liability of all insurers on the
same marine interest for a partial or average loss, is to contribute
ratably. .

Article XII. — Re-Insurance.

§ 1559. Definition.] A contract of re-insurance is one by which an
insurer procures a third person to insure him against loss or liability
by reason of such original insurance.

§ 1560. Disclosure required.] Where an insurer obtains re-in-
surance, he must communicate all the representations of the original
insurer, ,and also all the knowledge and information he possesses,
whether previously or subsequently acquired, which is material to the
risk.

§ 1561. Presumed nature of.] A re-insurance is presumed to be a
contract of indemnity against liability, and not merely against
damage.

§ 1562. Who iucluded.] The original insured has no interest in a
contract of re-insurance.

CHAPTER II:
marine insurance.

Article I. Definition of Marine Insurance.

II. Insurance Interest.

III. Concealment.

I V. Representations.

V. Implied Warrantees.

VI. The Voyage and Deviation.

VII. Loss.

VIII. Abandonment.

IX. Measure of Indemnity.

Article I. — Definition of Marine Insurance.

§ 1563. Definition.] Marine insurance is an insurance aeainst
risks connected with navigation, to which a ship, cargo, freightage,
profits, or other insurable interest in movable property, may oe ex-
posed during a certain voyage or a fixed period of time.

Article II. Insurable Interest.

§ 1564. Owner retains.] The owner of a ship has in all cases an
insurable interest in it, even when it has been chartered by one who
covenants to pay him its value in case of loss.

Civil Code. Insurance. 413

§ 1565. Hypothecation reduces.] The insurable interest of the
owner of. a ship hypothecated by bottomry is only the excess of its
value over the amount secured by bottomry.

§ 1566. Definition.] Freightage, in the sense of a policy of marine
insurance, signifies all the benefit derived by the owner, either fi'om
the chartering of the ship, or its employment for the carriage of his
own goods, or those of others.

§ 1567. Expected earnings.] The owner . of a ship has an insur-
able interest in expected freightage which he would have certainly
earned but for the mtervention of a peril insured against.

§ 1568. Same.] The interest mentioned in the last section exists,
in the case of a charter-party, when the ship has broken ground on
the chartered voyage ; and, if a price is to be paid for the carriage of
goods, when they are actually on board, or there is some contract for
putting them on board, and both ship and goods are ready for the
specified voyage. »

§ 1569. In profits.] One who has an interest in the thing from
which profits are expected to proceed, has an insurable interest in the
profits.

§ 1570. Charterer.] The cliarterer of a ship has an insurable
interest in it, to the extent that he is liable to be damnified by its
loss.

Article III. — Concealment.

§ 1571. Disclosures.] In marine insurance each party is bound to
communicate,, in addition to what is reauired by section 1497, all the
information which he possesses, material to the risk, except such as is
mentioned in section 1498, and to state the exact and whole truth in
relation to all matters that he represents, or upon inquiry assumes to
disclose.

§ 1572. Belief material.] In marine insurance information of the
belief or expectation of a third person, in reference to a material fact,
. is material.

§ 1573. Presumed knowledge.] A person insured by a contract of
marine insurance is presumed to have had knowledge, at the time of
insuring, of a prior loss, if the information might possibly have reached
him in the usual mode of transmission, and at the usual rate of com-
munication.

§ 1574. Partial exoneration.] A concealment in marine insurance;
in respect to any of the following matters, does not vitiate the entire
contract, but merely exonerates the insurer from a loss resulting from
the risk concealed:

1. The national character of the insured. '

2. The liability of the thing insured to capture and detention.
8. The liability to seizure from breach of foreign laws of trade.

4. The want of necessary documents; and,

5. The use of false and simulated papers.

Article IV. — Representations.

8 1576. Falsity rescinds.] If a representation, by a person insured
by contract fo marine insurance, is intentionally false m any respect,

414 Insubanok. Civil Code.

whether material or immaterial, the insurer may rescind the entire
contract.

§ 1576. Same.] The eventual falsity of a representation as to
expectation does not, in the absence of fraud, avoid a contract of
insurance.

Article V. — Implied Warranties.

§ 1577. Seaworthiness.] In every marine insurance upon a ship,
or freight, or freightage, or upon anything which is the subject of
marine insurance, a warranty is implied that the ship is seaworthy.

§ 1578. Definition of.] A ship is seaworthy when reasonably fit to
perform the services, and to encounter the ordinary perils of the
vovage, contemplated by the parties to the policy.

I 1579. When seaworthy — exceptions.] An implied warranty of
seaworthiness is complied with if the ship be seaworthy at the time of
the commencement of the risk, except in the following cases:

1. When the insurance is made for a specified length of time, the
implied warranty is not complied with, unless the ship be seaworthy
at the commencement of every voyage she may undertake during that
time; and,

2. When the insurance is upon the cargo, which by the terms of the
policy, or the description of the voyage, or the established custom of
the trade, is to be transhipped at an intermediate port, the implied
warranty is not complied with, unless each vessel upon which the
cargo is shipped, or transhipped, be seaworthy at the commencement
of its particular voyage.

§ 15y0. What included in.] A warranty of seaworthiness extends
not only to the condition of the structure of the ship itself, but
requires that it be properly laden, and provided with a competent
master, a sufficient number of competent officers and seamen, and the
requisite appurtenances and equipments, such as cables and anchors,
food, fuel, and lights, and other necessary or proper stores and imple-
ments for the voyage.

§ 1581. Degrees of in parts.] Where diflferent portions of the
voyage, contemplated by a policy, diflFer in respect to tne things requi-
site to make the ship seaworthy therefor, a warranty of seaworthiness
is complied with, if, at the commencement of each portion, the ship
is seaworthy with reference to that portion.

*§ 1582. Delayed repairs.] When a ship becomes unseaworthy
during the voyage to which an insurance relates, an unreasonable
delay in repairing the defect, exonerates the insurer from liability for
any loss arising tnerefrom. ,

§ 1583. Seaworthiness for cargo.] A ship which is seaworthy for
the purpose of an insurance upon the ship, may, nevertheless, by reason
of being unfitted to receive the cargo, be unseaworthy for the purpose
of insurance upon the cargo.

§ 1584. Neutral papers.] Where the nationality or neutrality of
a ship or cargo is expressly warranted, it is implied that the ship will
carry the requisite documents to show such nationality or neutrality,
and that it will not carry any documents which cast reasonable
suspicion thereon.

Civil Code. Insueanoe. 415

Article VI. — The Voyage and Deviation.

§ 1585. Mercantile usage.] When the voyage contemplated by a
policy is described by the places of beginning and ending, the voyage
insured is one which conforms to the course from point to point fixed
by mercantile usage between those places.

§ 1586. Same — exception.] If the course of sailing is not fixed by
mercantile usage, the voyage insured by a policy is the way between
the places specified, which, to a master of ordinary skill and aiscretion,
would seem the most natural, direct, and advantageous.

§ 1587. Deviation defined.] Deviation is a departure from the
course of the voyage insured, mentioned in the last two sections, or an
unreasonable delay in pursuing the voyage; or the commencement of
an entirely diflferent voyage.

§ 1588. Proper deviations.] A deviation is proper:

1. When caused by circumstances over which neither the master
nor the owner of the ship has any control.

2. When necessary to comply with a warranty, or to avoid a peril,
whether insured against or not,

. 3. When made in good faith, and upon reasonable grounds of belief
in its necessity to avoid a peril; or,

4. When made in good faith, for the purpose of saving human life,
or relieving another vessel in distress.

§ 1589. Others improper.] Every deviation, not specified in the
last section, is improper.

§ 1590. Exonerates insurer.] An insurer is not liable for any loss
happening to a thing insured subsequently to an improper deviation.

Article VII. -Loss.

1591. Classified.] A loss may be either total or partial.
^ 1592. Partial.] Every loss which is not total is partial.
1 1593. Total.] A total loss may be either actual or constructive.
I 1594. Causes of same.] An actual total loss is caused by:

1. A total destruction of the thing insured.

2. The loss of the thing by sinking, or by being broken up.

3. Any damage to the thing which renders it valueless to the owner
for the purposes for which he held it; or,

4. Any other event which entirely deprives the owner of the pos-
session at the port of destination of the thing insured.

§ 1595. Constructive total loss.] A constructive total loss is one
which gives to a person insured a right to abandon under section
1603.

§ 1596. Actual presumed.] An actual loss may be presumed from
the continued absence of a ship without being heard of; and the length
of time which is sufficient to raise this presumption depends on the
circumstances of the case.

§ 1597. Voyage broken up. ] When a ship is prevented, at an
intermediate port, from completing the voyage, by the perils insured
against, the master must make every exertion to procure, in the same
or contiguous port, another ship, for the purpose of conveying the
cargo to its destination; and the liability of a marine insurer thereon
continues after they are thus reshipped.

416 Insuranob. Civil Code.

§ 1598. Cost op reshipment.] In addition to the liability mentioned
in the last section, a marine insurer is bound for damages, expenses of
discharging, storage, reshipment, extra freiffhtage, and all other
expenses incurred in saving cargo reshipped pursuant to the last
section, up to the amount insured.

§ 1599. Payment without notice.] Upon an actual total loss a
person insured is entitled to payment without notice of abandonment.

§ 1600. General average loss.] Where it has been agreed that
an insurance upon a particular thing, or class of things, shall be free
from particular average, a marine insurer is not liable for any
particular average loss not depriving the insured of the possession, at
the port of destination, of the whole of such thing, or class of things,
even though it become entirely worthless; but he is liable for his pro-
portion of all general average loss assessed upon the thing insured.

§ 1601. Insurance against total loss.] An insurance confined in
terms to an actual total loss, does not cover a constructive total loss,
but covers any loss which necessarily results in depriving the insured
of the possession, at the port of destination, oi the entire thing
insured.

Article VIII. — Abandonment.

§ 1602. Definition.] Abandonment is the act by which, after a
constructive total loss, a person insured by a contract of marine
insurance, declares to the insurer that he relinquishes to him his
interest in the thing insured.

§ 1603. When authorized.] A person insured by a contract of
marine insurance may abandon the thing insured, or any particular
portion thereof, separately valued by the policy, or othei'wise separately"
insured, and recover for a total loss thereof, when the cause of the loss
is a peril insured against:

1. If more than half thereof, in value, is actually lost, or would have
to be expended to recover it from the peril.

2. If it is injured to such an extent as to reduce its value more than
one-half.

3. If the thing insured being a ship, the contemplated voyage
cannot be lawfully performed, without incurring an expense to the
insured of more than half the value of the thing abandoned, or without
incurring a risk which a prudent man would not take under the cir-
cumstances; or,

4. If the thing insured being cargo or freightage, the voyage cannot
be performed, nor another ship procured by the master within a reason-
able time, and with reasonable diligence, to forward the cargo,
without incurring the like expenses or risk. But freightage cannot in
any case be abandoned, unless the ship is also abandoned.

§ 1604. Must be absolute.] An abandonment must be neither
partial nor conditional.

§ 1605. When made.] An abandonment must be made within
a reasonable time after information of the loss, and after the com-
mencement of the voyage, and before the party abandoning has
information of its completion.

§ 1606. When ineppeotual.] Where the information upon which
an abandonment has been made proves incorrect, or the thing insured

Civil Code. Insurance. 417

was so far restored when the abandonment was made that there was
then in fact no total loss, the abandonment becomes ineflfectual.

§ 1607. Form of notice.] Abandonment is made by giving notice
thereof to the insurer, which may be done orally or in writing.

§ 1608. Requisites of.] A notice of abandonment must be explicit,
and must specify the particular cause of the abandonment; but need
state only enough to show that there is probable cause therefor, and
need not be accompanied with proof of interest or of loss.

§ 1609. Notice governs.] An abandonment can be sustained only
upon the cause specified in the notice thereof.

§ 1610. Is A transfer.] An abandonment is equivalent to a trails-
fer by the insured, of his interest, to the insurer, with all the chances
of recovery and indemnity.

§ 1611. r A YMENT ENTITLES TO SALVAGE.] If a marine insurer pays for
a loss as if it were an actual total loss, he is entitled to whatever may
remain of the thing insured, or its proceeds or salvage, as if there had
been a formal abandonment.

§ 1612. Agents of insurer.] Upon an abandonment acts done in
good faith by those who were agents of the insured, in respect to the
thing insured, subsequent to the loss, are at the risk of the insurer,
and for his benefit.

§ 1613. Acceptance unnecessary.] An acceptance of an abandon-
ment is not necessary to the rights of the insured, and is not to be
presumed from the mere silence of the insurer, upon his receiving
notice of abandonment.

§ 1614. Conclusive.] The acceptance of an abandonment, whether
express or implied, is conclusive upon the parties, and admits the loss
and suflSciency of the abandonment.

§ 1615. Irrevocable.] An abandonment once made and accepted
is irrevocable, unless the ground upon which it was made proves to be
unfounded.

§ 1616, Effect of freightage.] On an accepted abandonment of
a ship, freightage earned previous to the loss belongs to the insurer
thereof; but freightage subsequently earned, belongs to the insurer of
the ship.

§ 1617. Refusal to accept.] If an insurer refuses to accept a valid
abandonment, he is liable as upon an actual total loss, deducting from
the amount any proceeds of the thing insured which may have come
to the hands of tne insured.

§ 1618. Omission.] If a person insured omits to abandon, he may,
nevertheless, recover his actual loss.

Article IX. — IkfEASURE or Indemnity.

§ 1619. Valuation conclusive.] A valuation in a policy of marine
insurance is conclusive between the parties thereto, in the adjustment
of either a partial or total loss, if the insured has some interest at
risk, and there is no fraud on his part; except that when a thing has
been hypothecated by bottomry or respondentia, before its insurance,
and witnout the knowledge of the person actually procuring the
insurance, he may show the real value. But a valuation fraudulent in
fact entitles the insurer to rescind the contract.

37

41 S Insuranck. Ciml Cods.

§ 1620. Partial loss.] A marine insurer is liable, upon a partial
loss, only for such proportion of the amount insured by him, as the
loss bears to the value of the whole interest of the insured in the
property insured.

§ 1621. Profits.] Where profits are separately insured in a con-
tract of marine insurance, the insured is entitled to recover, in case of
loss, a proportion of such profits equivalent to the proportion which
the value of the property lost bears to the value of the whole.

§ 1622, Valuation proportioned.] In case of a valued policy of
marine insurance on freightage or carffo, if a part only of the subject
is exposed to risk, the valuation applies only in proportion to such
part.

§ 1623. Presumption.] When profits are valued and insured by a
contract of marine insurance, a loss of them is conclusively presumed
from a loss of the property out of which they were expected to arise,
and the valuation fixes their amount.

§ 1624. Rules for estimate.] In estimating a loss under an opeu
policy of marine insurance, the following rules are to be observed:

1. The value of a ship is its value at the beginning of the risk,
including all articles or charges which add to its permanent value, or
which are necessary to prepare it for the voyage insured.

2. The value of cargo is its actual cost to the insured, when laden
on board, or where the cost cannot be ascertained, its market value at
the time and place of lading, adding the charges incurred in purchas-
ing and placing it on board, but without reference to any losses
incurred in .raising money for its purchase, or to any drawback on its
exportation, or to the fluctuations of the market at the port of desti-
nation, or to expenses incurred on the way, or on arrival.

3. The value of freightage is the gross freightage, exclusive of prim-
age, without reference to the cost of earning it; and,

4. The cost of insurance is in each case to be added to the value thus
estimated.

§ 1625. Arrival dam aged.] If cargo insured against partial loss
arrives at the port of destination in a damaged condition, the loss of
the insured is deemed to be the same proportion of the value which
the market price at that port of the thing so damaged bears to the
market price it would have brought if sound.

§ 1626. Expenses.] A marine insurer is liable for all the expenses
attendant upon a loss which forces the ship into port to be repaired;
and where it is agreed that the insured may labor for the recovery of
the property, the insurer is liable for the expense incurred thereby,
such expense, in either case, being in addition to the total loss, if that
afterwards occurs.

§ 1627. General average.] A marine insurer is liable for a loss
falling upon the insured, through a contribution in respectto the thing
insured, required to be made by him towards a general average loss
called for by a peril insured against.

§ 1628. Contribution.] Where a person insured by a contract of
marine insurance has a demand against others for contribution, he
may claim the whole loss from the insurer, subrogating him to his own
right to contribution. But no such claim can be made upon the
insurer after the separation of the interests liable to contribution, nor

m •

Givil Code, iNgURANC*. 419

when the insured, having the right and opportunity to enforce con-
tribution from others, has neglected or waived the exercise of that
right.

§ 1629. New for old.] In the case of a partial loss of a ship, or
its equipments, the old materials are to be applied toward payment
for the new, and whether the ship is new or old, a marine insurer is
liable for only two-thirds of the remaining cost of the repairs, except
that he must pay for anchors and cannon in full, and for sneathing
metal at a depreciation of only two and one-half per cent, for each
month that it has been fastened to the ship.

CHAPTER in.

FIRE INSURANCE.

§ 1630. Increasing rise.] An alteration in the use or condition of
a thing insured, from that to which it is limited by the policy,
made without the consent of the insurer, by means within the, control
of the insured, and increasing the risk, entitles an insurer to rescind a
contract of fire insurance.

1 1631. Same in use.] An alteration in the use or condition of ^
thing insured^ from that to which it is limited by the policy, which
does not increase the risk, does not aflfect a contract of fire insurance.

§ 1632. Act op insured.] A contract of fire insurance is not
aflFected by any act of the insured, subsequent to the execution of th§
policy, which does not violate its provisions, even though it increase^
the nsk, and is the cause of a loss.

§ 1633. Measure of indemnity.] If there is no valuation in the
policy, the measure of indemnity in an insurance against fire is the
full amount stated in the policy; but the e£fect of a valuation in a
policy of fire insurance is the same as in a policy of marine insurance.

CHAPTER IV.

life and health insurance.

§ 1634. When payable.] An insurance upon life may be made
payable on the death of the person, or on his surviving a specified
period, or periodically so lone as he shall live, or otherwise contin-
gentlv on the continuance or determination of life.

§ 1635. Insurable interest.] Every person has an insurable
interest in the life and health:

1. Of himself.

2. Of any person on whom he depends wholly or in part for educa-
tion or support.

3- Of any person under a legal obligation to him for the payment of
money, or respecting property or services, of which death or illness
might delay or prevent the performance; and,

/

^

420 Insuranob. Civil Code.

4. Of any person upon whose life any estate or interest, vested in
him, depends.

§ 1636. Assignee.] A policy of insurance upon life or health may
pass by transfer, will, or succession, to any person, whether he has an
insurable interest or not, and such person may recover upon it what-
ever the insured might have recovered.

§ 1637. Notice of tbansfbe.] Notice to an insurer of a transfer or
bequest thereof is not necessary to preserve the validity of a policy of
insurance upon life or health, unless thereby expressly required.

§ 1638. Measure of indemnity,] Unless the interest of a person
insured is susceptible of exact pecuniary measurement, the measure of
indemnity under a policy of insurance upon life or health is the sum
fixed in tte policy.

§ 1639. Indemnity defined.] Indemnity is a contract by which
one engages to save another from a legal consequence of the conduct
of one of the parties, or of some other person.

§ 1640. Unlawful.] An agreement to indemnify a person against
an act thereafter to be done, is void, if the act be known by sucn per-
son at the time of doing it to be unlawful.

§ 1641. Valid.] An agreement to indemnify a person against an
act already done, is valid, even though the act was known to be
wrongful, unless it was a felony.

§ 1642. Includes agents.) An agreement to indemnify against the
acts of a certain person, applies not only to his acts, and their conse-
quences, but also to tho^ of his agents.

§ 1643. Several means each.] An agreement to indemnify several
persons applies to each unless a contrary intention appears.

§ 1644. Joint and separate.] One who indemnifies another against
an act to be done by the latter, is liable jointly with the person indem-
nified, and separately to every person injured by such act.

§ 1645. Rules of interpretation.] In the interpretation of a con-
tract of indemnity, the following rules are to be applied,* unless a
contrary intention appears:

1. Upon an indemnity against liability, expressly, or in other equiva-
lent terms, the person indemnified is entitled to recover upon becom-
ing liable.

z. Upon an indemnity against claims or demands, or dainages or
costs, expressly, or in other equivalent terms, the person indemnified
is not entitled to recover without payment thereof.

3. An indemnity against claims or demands, or liability, expressly,
or in other equivalent terms, embraces the costs of defense against
such claims, demands, or liability incurred in good faith, and in the
exercise of reasonable discretion.

4. The person indemnifying is bound, on request of the person
indemnified, to defend actions or proceedings brought against the lat-
ter in respect to the matters embraced by the indemnity, but the per-
son indemnified has the right to conduct such defenses, if he chooses
to do so.

5. If, after request, the person indemnifying neglects to defend the
person indemnified, a recovery against the latter, suffered by him in
good faith, is conclusive in his favor against the former.

Civil Code. Guaeaiwt. 421

6. If the person indemnifying, whether he is a principal or a surety
in the agreement, has not reasonable notice of the action or proceed-
ings against the piBrson indemnified, or is not allowed to control its
defense, judgment against the latter is only presumptive evidence
a^inst the former.

7. A stipulation that a judgment against the person indemnified
shall be conclusive upon the person inaemnifying, is inapplicable if he
had a good defense upon the merits, which by want of ordinary care
he failed to establish in the action.

§ 1646. When a surety.] When one, at the request of another,
engages to answer in damages, whether liquidated or unliquidated, for
any violation of duty on the part of the latter, he is entitled to be
reimbursed in the same manner as a surety for whatever he may pay.

§ 1647. Bail.] Upon those contracts of indemnity which are taken
in legal proceedings, as security for the performance of an obligation
imposed or declared by the tribunals, and known as undertakings or
recognizances, the sureties are called bail.

§ 1648. How REGULATED.] The obligations of bail are governed by
the statutes specially applicable thereto.

TITLE XIII.

GUARANTY.

Chapter I. Guaranty in General.
II. Suretyship.

CHAPTKR I.

guaranty in general.

Article L

Definition of Guaranty.

II.

Creation of Guaranty.

III.

Interpretation of Guaranty.
Liability of Guarantors.

IV.

V.

Continuing Guaranty.

VI.

Exoneration of Guarantors.

Article I. — Definition of Guaranty.

§ 1649. Definition.! A guaranty is a promise to answer for the
debt, default, or miscarriage of another person.

§ 1650. Without consent.] A person may become guarantor even
without the knowledge or consent of the principal.

422 Guaranty. ' Civil Codei

Abtiole II. — Creation op Guaranty.

§ 1651. Consideration.] Where a guaranty is entered into at the
same time with the original obligation, or with the acceptance of the
latter by the guarantee, and forms with that obligation, a part of the
consideration to him, no other consideration need exist. In all other
cases there must be a consideration distinct from that of the original
obligation,

§ 1652. In writing.] Except as prescribed by the next section, a
guaranty must be in writing, and signed by the guarantor; but the
writing need not express a consideration.

§ 1653. Exception.] A promise to answer for the obligation of
another, in any of the following cases, is deemed an original obligation
of the promisor, and need not be in wi-iting :

1. Wnere the promise is made by one wnb has received property of
another upon an undertaking to apply it pursuant to sucn promi^;
or by one who has received a discharge from an obligation in whole
or in part, in consideration of such promise.

2. Where the creditor parts with value, or enters into an obligation,
in consideration of the obligation in respect to which the promise is
made, in terms or under circumstances such as to render the party
making the promise the principal-debtcw^ and the person in whose
behalf it is made his surety.

8. Where the promise, being for an antecedent obligation of another,
is made upon the consideration that the party receiving it cancels the
antecedent obligation, accepting the new promise as a substitute
therefor; or upon the consideration that the party receiving it releases
the property of another from a levy, or his person from imprisonment
under an execution on a judgment obtained upon the antecedent
obligation; or upon a consideration beneficial to rae promiser, whether
moving from either party to the antecedent obligation, or from another
person.

4. Where a factor undertakes, for a commission, to sell merchandise
and guaranty the sale.

5. Where the holder of an instrument for the payment of money,
upon which a third person is or may become liable to him, transfers it
in payment of a precedent debt of his own, or for a new consideration,
and in connection with such transfer enters into a promise respecting
such instrument.

§1654. Acceptance. NBOBSSAR Y.J A mere oflFer to guaranty is not
binding, until notice of its acceptance is communicated by the
guarantee to the guarantor; but an absolute guaranty is binding upon
the guarantor without notice of acceptance.

Abtiole III. — Interpretation of Guaranty.

§ 1655. Implied guaranty.] In a guaranty of a contract, the terms
of which are not then settled, it is implied that its terms shall be such
as will not expose the guarantor to greater risks than he would incur
under those terms which are most common, in similar contracts, at
the place where the principal contract is to be performed.

§ 1656. Of solvency.] A guaranty to the effect that an obligation
is good, or is collectible, imports that the debtor is solvent, and that

Civil Code, Guaranty. 493

the demand is collectible by the usual legal proceedings, if taken with
reasonable diligence.

§ 1657. Recovery.] A guaranty, such as is mentioned in the last
section, is not discharged by an omission to take proceedings upon the
principal debt, or upon any collateral security for its payment, if no
part ot the debt could have been collected thereby.

§ 1658. Insolvency presumed.] In the cases mentioned in section
1656, the removal of the principal from the territory, leaving no
property therein from which the obligation might be satisfied, is
ec[uivalent to the insolvency of the principal, in its effect upon the
rights and obligations of the guarantor.

Article IV. — Liability of Guarantors.

. § 1659. Guaranty construed.] A guaranty is to be deemed uncon-
ditional, unless its terms import some conaition precedent to the
liability of the guarantor.

§ 1660. Liability — when and how.] A guarantor of payment or
performance is liable to the guarantee immediately upon the default
of the principal, and without demand or notice.

§ 1661. Of conditional obligation.] Where one guaranties a
conditional obligation, his liability is commensurate with that of the
principal, and he is not entitled to notice of the default of the prin-
cipal, unless he is unable, by the exercise of reasonable diligence, to
acquire information of such default, and the creditor has actual notice
thereof.

§ 1662. Limitation of obligation.] The obligation of a guarantor
must be neither larger in amount nor in other respects more burden-
some than that of the principal; and if, in its terms, it exceeds it, it
is reducible in proportion to the principal obligation.

§ 1663. Illegal contract void.] A guarantor is not liable if the
contract of the principal is unlawful ; but he is liable notwithstand-
ing any mere personal disability of the principal, though the
disability be such as to make the contract void against the principal.

Article V. — Continuing Guaranty.

§ 1664. Definition.] A guaranty relating to a future liability of
the principal, under successive transactions, which either continue his
liability or from time to time renew it after it has been satisfied, is
called a continuing guaranty.

§ 1665. Revocation.] A continuing guaranty may be revoked at
any time by the guarantor, in respect to future transactions, unless
there is a continuing consideration as to such transactions which he
does not renounce.

Article VI.~ Exoneration of Guarantors.

§ 1666. Exoneration.] A guarantor is exonerated, except so far as
he may be indemnified by the principal, if by any act of the creditor,
without the consent of the guarantor, the original obligation of the
principal is altered in any respect, or the remedies or rights of the
creditor against the principal, in respect thereto, in any way impaired
or suspended.

424 Guaranty. Civil Code,

§ 1667. Void promi:se.] A promise by a creditor, which for any
cause is void, or voidable by him at his option, does not alter the
obligation or suspend or impair the remedy, within the meaning of
the last section.

§ 1668. Alteration rescinded.] The rescission of an agreement
altering the original obligation of a debtor, or impairing the remedy
of a creditor, does not restore the liability of a guarantor who has
been exonerated by such agreement.

§ 1669. Part performance.] The acceptance, by a creditor, of any
thing in partial satisfaction of an obligation, reduces the obligation
of a guarantor thereof, in the same measure as that of the principal,
but does not otherwise affect it.

§ 1670. Delay no discharge.] Mere delay on the part of a creditor
to proceed against the principal, or to enforce any other remedy, does
not exonerate a guarantor.

§ 1671. Indemnity.]. A guarantor, who has been indemnified by
the principal, is liable to the creditor to the extent of the indemnity,
notwithstanding that the creditor, without the assent of the guarantor,
niay have modified the contract or released the principal.

§ 1672. Act of law.] A guarantor is not exonerated by the dis-
charge of his principal by operation of law, without the intervention
or omission of the creditor.

CHAPTER TI.

SURETYSHIP.

Article L Who are Sureties.

II. Liability of Sureties.

III. Rights of Sureties.

IV. Rights of Creditors.
V. Letter of Credit.

Article I. — Who are Sureties.

§ 1673. Definition.] A surety is one who, at the request of
another, and for the purpose of securing to him a benefit, becomes
responsible for the performance by the latter of some act in favor of a
third person, or hypothecates property as security therefor.

§ 1674. Surety who appears principal.] One who appears to be a
principal, whether by the terms of a written instrument, or otherwise,
may show that he is in fact a surety, except as against persons who
have acted on the faith of his apparent character of principal.

Article II. — Li^^bility op Sureties.

§ 1675. Obligation.] A surety cannot be held beyond the express
terms of his contract, and if such contract prescribes a penalty for its
breach, he cannot in any case be liable for more than the penalty.

Civil Code. Guaranty. 425

§ 1676. Like other contracts.] In interpretinff the terms of a
contract of suretyship, the same rules are to be observed in the case
of other contracts.

§ 1677. Continues as surety.] Notwithstanding the recovery of
judgment by a creditor against a surety, the latter still occupies the
relation of surety.

§ 1678. Exoneration.] Performance of the principal obligation, or
an offer of such performance, duly made as provided in this code,
exonerates a surety.

§ 1679. Same.] A surety is exonerated:

1. In like manner with a guarantor.

2. To the extent to which he is prejudiced by any act of the
creditor which would naturally prove injurious to the remedies of
the surety or inconsistent with Ms rights, or which lessens his security;
or,

3. To the extent to which he is prejudiced by an omission of the
creditor to do anything, when required by the surety, which it is his
duty to do.

Article III. — Rights of Sureties.

§ 1680. Rights of a guarantor.] A surety has all the rights of a
guarantor, whether he becomes personally responsible or not.

§ 1681. Proceedings against principal.] A surety may require his
creditor to proceed against the principal, or to pursue any other
rernedy in his power which the surety cannot himself pursue, and
which would lighten his burden; and if in such case the creditor
neglects to do so, the surety is exonerated to the extent to which he is
thereby prejudiced.

§ 1682. May compel principal.] A surety may compel his principal
to perform the obligation when due.

§ 1683. Reimbursement.] If a surety satisfies the principal obliga-
tion, or any part thereof, whether with or without legal proceedings,
the principal is bound to reimburse what he has disbursed, including
necessary costs and expenses; but the surety has no claim for reimburse-
ment against other persons, though they may have been benefited by
his act^ except as prescribed by the next section.

§ 1684. Same.] A surety, upon satisfying the obligations of the
principal, is entitled to enforce every remedy which the creditor then
has against the principal, to the extent of reimbursing what he has
expended; and also to reauire all his co-sureties to contribute thereto,
without regard to the oraer of time in which they became such.

§ 1685. Entitled to all securities.] A surety is entitled to the
benefit of every security for the performance of the principal obliga-
tion, held by the creditor, or by a co-surety, at the time of entering
into the contract of suretyship, or accjuired by him afterwards,
whether the surety was aware of the security or not.

§ 1686. Principal's property first.] Whenever property of a
surety is hypothecated with the property of the principal, the surety
is entitled to have the property of the principal first applied to the
discharge of the obligation.

y

42ft Guaranty. Civil Code,

Article IV. — Rights of Creditors.

§ 1687. Right to every security.] A creditor is entitled to the
benefit of everything which a surety has received from the debtor by
way of security for the performance of the obligation ; and may, upon
the maturity of the obligation, compel the application of such
security to ite satisfaction.

Article V. — Letter of Credit.

§ 1688. Definition.] A letter of credit is a written instrument,
addressed by one person to another, requesting the latter to give credit
to the person in whose favor it is drawn.

§ 1689. To SEVERAL.] A letter of credit may be addressed to
several persons in succession.

§ 1690. When writer liable.] The writer of a letter of credit is,
upon the default of the debtor, liable to those who gave credit in
compliance with its terms.

§ 1691. Classes defined.] A letter of credit is either general or
special. When the request for credit, in a letter, is addressed to specified
persons by name or description, the letter is special. All other letters
of credit are general.

§ 1692. General.] A general letter of credit gives any pei-son to
whom it may be shown, authority to comply with its request, and by
his so doing it becomes, as to him, of the same effect as if addressea
to him by name.

§ 1693. Successive credits on.] Several persons may successively
give credit upon a general letter.

§ 1694. Continuing guaranty.] If the parties to a letter of credit
appear by its tenns to contemplate a course of future dealing between
the parties, it is not exhaustea by giving a credit, even to the amount
limited by the letter, which is subsecjuently reduced or satisfied by
payments made by the debtor, but is to be deemed a continuing
guaranty.

§ 1695. Notice to writer.] The writer of a letter of. credit is liable
for credit given upon it without notice to him, unless its terms express
or imply the necessity of giving notice.

§ 1696. Credit must agree with letter,] If a letter of credit
prescribes the persons by whom, or the mode in which, the credit is
to be given, or the term of credit, or limits the amount thereof, the
writer is not bound except for transactions which, in these respects,
conform strictly to the terms of the letter.

Cinil Code. Lisi^. 437

TITLE XIV.

LIEN.

Chapter I. Liens in General.

II. Mortgage.

III. Pledge.

IV. Bottomry.

V. Respondentia.

VI. Other Liens.

VII. Stoppage in Transit.

CHAPTER I.

LIEKS IN OENSRAX.

Article I. Definition of Liens,

11. Creation of Liens.

III. Eflfect of Liens. .

IV. Priority of Liens.

V. Redemption from Liens.

VI. Extinction of Liens.

Article I. — Definition of Liens.

§ 1697. Definition.] A lien is a charge imposed upon specific .
property, by which it is made security for the performance of an act.

§ 1698. Classified.] Liens are either general or special.

§ 1699. General lien.] A general lien is one which the holder
thereof is entitled to enforce as a security tor the performance of all
the obligations, or all of a particular class of obligations, which exist in
his favor against the owner of the property.

§ 1700. Special — prior liens.] 1. A special lien is one which
the holder thereof can enforce only as a security for the performance
of a particular act or obligation, and of such obligations as may be
incidental thereto.

2. Where the holder of a special lien is compelled to satisfy a prior
lien for his own protection, he may enforce payment of the amount
80 paid by him, as a part of the claim for which his own lien exists.

§ 1701. Tms chapter applies.] Contracts of mortgage, pledge,
bottomry, or respondentia, are subject to all the provisions of this
chapter.

428 LiBK; Cii?il Code.

<

Article II. — Creation of Liens.

§ 1702. Two methods.] A lien is created:

1. By contract of the parties; or,.

2. By operation Of law.

§1703. When BY LAW.] No lien arises by mere operation of law
until the time at which the act to be secured thereby ought to be per-
formed.

§1704. On future interest.] An agreement may be made to
create a lien upon property not yet acquired by the party agreeing to
give the lien, or not yet in existence. In such case the lien agreed for
attaches from the time when the party agreeing to give it acquires
an interest in the thing to the extent of such interest.

§ 1705. Immediate effect.) A lien may be created by contract, to
take immediate effect, as security for the performance of obligations
not then in existence.

Article III. — Effect of Liens.

§ 1706. Transfers no title.] Notwithstanding an agreement to
the contrary, a lien or a contract for a lien transfers no title to the
property subject to the lien. • .

§ 1707. Void contracts.] All contracts for the forfeiture of prop-
erty subject to a lien, in satisfaction of the obligation secured thereby,
and all contracts in restraint of the right of redemption from a lien,
are void, except in the case specified in section 1071.

§ 1708. Does not imply obligation.] The creation of a lien does
not of itself imply that any person is bound to perform the act for
which the lien is a security.

§ 1709. Extent limited.] The existence of a lien upon property
does not of itself entitle* the person, in whose favor it exists, to a lien
upon the same property, for tne performance of any other obligation
than that which the lien originally secured.

§ 1710. No compensation to holder.] One who holds property by
virtue of a lien thereon, is not entitled to compensation from the
owner thereof for any trouble or expense which he incurs respecting
it, except to the same extent as a borrower, under sections lCfe2 and
1083..

Article IV.— Priority of Liens.

§ 1711. According to date.] Other things being equal, .different
liens upon the same property have priority ac^cording to the time of
their creation, except in cases of bottomry and respondentia.

§ 1712. Priority of purchase price.] A mortage given for the
price of real property, at the time of its conveyance, nas priority over
all other liens created against the purchaser, subject to the operation
of the recording laws.

§ 1713. Order of resort.) Where one has a lieu upon several
things, and other persons have subordinate liens upon, or interests in,
some but not all of the same things^ the person having the prior lien,
if he can do so without risk of loss to himself, or of injustice to other

Civil Code. Lien. 429

Sersons, must resort to the property in the following order, on the
emand of any party interested :

1. To the things upon which he has an exclusive lien.

2. To the things which are subject to the fewest subordinate liens.

3. In like; manner inversely to the number of subordinate liens upon
the same thing; and,

4. When several things are within one of the foregoing classes and
subject to the same number of liens, resort must be had:

1. To the things which have not been transferred since the prior
lien was created.

2. To the things which have been so transferred without a valuable
consideration; and,

3. To the things which have been so transferred for a valuable con-
sideration.

Article V. — Redemption of Lien.

§ 1714. Right of every owner.] Every person, having an interest
in property subject to a lien, has a right to redeem it from the lien, at
any time after the claim is due, and before his right of redemption is
foreclosed.

§ 1715.] Inferior — subrogation.] One who has a lien, inferior to
another upon the same property, has a right:

1. To redeem the property in the same manner as its owner
might, from the superior hen; and,

2. To be subrogated to all the benefits of the supjerior lien, when
necessary for the protection of his interests, upon satisfying the claim
secured thereby.

§ 1716. How MADE.] Redemption from a lien is made by j)erform-
ing, or offering to perform, the act for the performance of which it is
a security, ana paying, or offering to pay, the damages, if any, to which
the holder of the lien is entitled for delay.

Article VL — Extinction of Liens.

§ 1717. Deemed accessory.] A lien is to be deemed accessory to
the act for the performance of which it is a security, whether any
pel-son is bound tor such performance or not, and is extinguishable in
like manner with any other accessory obligation.

§ 1718. Sale or conversion by lienor.] The sale of any property
on which there is a lien, in satisfaction of the claim secured thereb}^
or, in case of personal property, its wrongful conversion l)y the person
holding the lien, extinguishes the lien thereon.

§ 1719. Not by mere lapse op time.] A lien is not extinguished
by the mere lapse of the time within which, under the provisions of
the code of civil procedure, an action can be brought upon the prin-
cipal obligation.

§ 1720. Apportionment op lien.] The partial performance of an
act secured by a lien does not extinguish the lien upon any part of
the property subject thereto, even if it is divisible.

§ 1721. When restoration extinguishes.] The voluntary restora-
tion of property to its owner bjr the holder of a lien thereon,
dependent upon possession, extinguishes the lien as to such property,

n

480 LiBK. Citnl Code.

unless otherwise agreed by the parties, and extinguishes it, notwith-
standing any such agreement, as to creditors of the owner and
persons subsequently acquiring title to the property, or a lien thereon,
m good faith, and for a good consideration.

CHAPTER II.

MORTGAGE.

Abtiolx I. Mortgage in General.

n. Mortgage of Real Property,
ill. Mortgage of Personal Property.

AbTIOLE I. — MOBTGAGS IN GeNBBAL.

§ 1722. Definition — weitten formalities.] 1. Mortgage is a con-
tract, by which specific property is hypothecated for the performance
of an act, without the necessity of a change of possession.

2. A mortgage of real property can be created, renewed, or extended,
only by writing, executed with the formalities required in the case of a
grant of real property.

§ 1723. Special lien.] The lien of a mortgage is special, unless
otherwise expressly agreed, and is independent of possession.

§ 1724. What deemed a mortgage.] Every transfer of an interest
in property, other than in trust, made only as a security for the per-
formance of another act, is to be deemed a mortgage, except when in
the case of personal property it is accompanied by actual change of
possession, in which case it is to be deemed a pledge.

§ 1725. Exceptions.] Contracts of bottomry or respondentia,
although in the nature of mortgages, are not affected by any of the
provisions of this chapter.

§ 1726. Defeasibilitt may be proved.] The fact that a tranafw
was made subject to defeasance on a condition, may, for the purpose
of showing such transfer to be a mortgage, be proved, except as against
a subsequent purchaser or incumbrancer, for value and without notice,
though the fact does not appear by the terms of the instrument.

§ 1727. Rules governing mortgage.] 1. Any interest in property,
which is capable of being transferred may be mortgaged.

2. Title acquired by the mortgagor subsequent to the execution of
the mortgage, inures to the mortgagee as security for the debt in like
manner as if acquired before the execution.

8. A mortgage does not bind the mortgagor personally to perform
the act for the performance of which it is a security, unless there is an
express convenant therein to that effect.

4. The assignment of a debt secured by mortgage carries with it the
security.

§ 17^8. On property adversely held.] A mortgage may be
created upon property held adversely to the mortgagor.

Civil Codf^. Lii5N. 481

2. A mortgage of property held adversely to the mortgagor takes
effect from the" time at which he, or one claiming under him, obtains
possession of the property; but has precedence over every lien upon
the mortgagor's interest in the property, created subsequently to the
recording oT the mortgage.

§ 1729. Power of sale.] A power of sale may be conferred by a
mortgage upon the mortgagee or any other person, to be exercised
after a breach of the obligation for which the mortgage is a security.

§ 1730. Power OP attorney.] 1. A power of sale under a mortgage
is a trust, and as to real property, can be executed only in the manner
prescribed by the code of civil procedure.

2. A power of attorney to execute a mortffage must be in writing,
subscribed, acknowledged, or proved, certineo, and recorded in like
manner as powers of attorney for grants of real property.

§ 1731. Lien of mortgage.] A mortgage is a lien upon every-
thing that would pass by a grant of the property, and upon nothing
more.

§ 1732. Against whom.] A mortgage is a lien upon the property
mortgaged, in the hands of every one claiming under the mortgagor
subsequently to its execution, except purchasers or incumbrancers in
good faith, without notice and for value, * and except as otherwise
provided by article III of this chapter.

§ 1733. Possession — impairing security.! 1. A mortgage does not
entitle the mortgagee to the possession of the property unless author-
ized by the express terms of the mortgage ; but alter the execution of
the mortgage, the mortgagor may agree to such change of possession
without a new consideration.

2. No person whose interest is subject to the lien of a mortgage may
do any act which will substantially impair the mortgagee's security.

1 1734. Foreclosure.] A mortgagee may forecfose the right of
redemption of the mortgagor, in the manner prescribed by the code of
civil procedure.

§ 1785. Assignment — rboord — discharge.] 1. An assignment of a
mortgage may be recorded in like manner as a mortgage, and such
record operates as notice to all persons subsequently deriving title to
the mortgage from the assignor.

2. When the mortgage is executed as security for money due, or to
become due, on a promissory note, bond, or other instrument, desig-
nated in the mortgage, the record of the assignment of the mortgage
is not, of itself, notice to a mortgagor, his heirs or personal representa-
tives, so as to invalidate any payment made by them, or either of
them, to the person holding such note, bond, or other instrument.

8. A recorded mortgage may be discharged by an entry in the
margin of the record thereof, signed by the mortgagee, or his personal
represQptative or assignee, acKnowledginc the satisfaction of the
mortgage in the presence of the register, who must certify the ackowl-
edgment in form substantially as follows :

Signed and acknowledged before me, this day of , in the year

A. B., Register.

4. A recorded mortgage, if not discharged as provided in the
preceding subdivision, must be discharged upon the record by the

432 Lien. Civil Code.

oflBcer having custody thereof, on the presentation to him of a certifi-
cate signed by the mortgagee, his personal representatives or assigns,
acknowledged, or proved and certified, as prescribed by the chapter
on recording transfers, stating that the mortgage has been paid, or
otherwise satisfied and discharged.

5. A certificate of the discharge of a mortgage, and a proof or
acknowledgment thereof, must be recorded at length, and a reference
made in the record to the book and page where the mortgage is
recorded, and in the minute of the discharge made upon the record of
the mortgage, to the book and page where the discharge is recorded.

6. When any mortgage has been satisfied, the mortgagee or his
assignee must immediately, on demand of the mortgagor, execute and
deliver to him a certificate of the discharge thereof and must, at the
expense of the mortgagor, acknowledge the execution thereof, so as to
entitle it to be recorded, or he must enter satisfaction, or cause satis-
faction of such mortgage to be entered of record; and any mortgagee,
or assignee of such mortgage, who refuses to execute and deliver to the
mortgagor the certificate of discharge, and to acknowledge the execu-
tion tnereof, or to enter satisfaction, or cause satisfaction to be entered
of the mortgage, as provided in this chapter, is liable to the mortgagor,
or his grantee or heirs, for all damages which he or they may susfaiin
by reason of such refusal, and also forfeit to him or them the sum of
one hundred dollars.

Article II. — Mortgage of Real Property.

§ 1736. Form.] A mortgage of real property may be made in sub-
stantially the following form:

This mortgage made the day of , in the year , by A B, of ,

mortgagor, to 0 D, of mortgagee, witnesseth :

That the mortgagor mortgages to the mortgagee (here describe the property), as security for

•the payment to him of dollars, on or before the day of in the

year , with interest thereon (or as security for the payment of an obligation, describing

It, etc.) ^ A B.

§ 1787. Mortgage follows property.] When real property, subject
to a mortgage, passes by succession or will, the successor or devisee
must satisfy the mortgage out of his own property, without resorting
to the executor or admmistrator of the mortgagor, unless there is an
express direction in the will of the mortgagor that the mortgage shall
be otherwise paid.

§ 1738. Executed like grants.] Mortgages of real property may
be acknowledged or proved, certified and recorded, in like manner and
with like effect, as grants tnereof.

§ 1739. Notice by record.] The record of a mortgage, duly made,
operates as notice to all subsequent purchasers and incumbrancers.

§ 1740. Record op accompanying paper.] Every grant of real prop-
erty, or of any estate therein, which appears, by any other writing, to
be intiended as a mortgage within the meaning of chapter I of this
title, must be recorded as a mortgage; and if such grant and other
writing explanatory of its true character are not recorded together,
at the same time and place, the grantee can derive no benefit from
such record.

»

K

Civil Code. Libn. 43S

§1741. Defeasance must bb recorded.] When a grant of real

Sroperfcy purports to be an absolute conveyance, hnt is intended to be^
efeasable on the performance of certain conditions, such grant is not
defeated or affected as against any person, other than the grantee or
his heirs or devisees, or persons having actual notice, unless an instru-
ment of defeasance, duly executed ana acknowledged, shall have been
recorded in the office of the register of deeds of the county where the
property is situated.

Article III. — Mortgage op Personal Property.

§ 1742. Form.] A mortgage of personal property may be made in
substantially the following form :

This mortgage, made the .day of , in the year , by A B, of by

occupation a mortgagor, to C D, of , by occupation a , mortgagee,

witnesseth :

That the mortgagor mortgages to the mortgagee (here describe the property), as security for

the payment to him of dollai-s, on (or before) the day of. .'; , in the year

witli interest thereon (or as security for the payment of a note or obligation, describing

it. etc.) A B. .

§ 1743. Two METHODS OF FORECLOSURE. J A mortgage of personal
property, when the debt to secure which the mortgage was executed
becomes due, may foreclose the mortgagor's right of redemption by a
sale of the property, made in the manner and upon the notice pre-
scribed by tTie title on pledge, or by proceedings under the code of civil
procedure.

§ 1744. Void unless filed— how.] A mortgage of personal prop-
ert,y is void as against creditors of the mortgagor, and subsequent
purchasers and incumbranc/ei's of the property in good faith for value,
unless the original, or an authenticated copy thereof, be filed by
depositing the same in the office of the register of deeds of the county
where thfi property mortgaged, or any part thereof, is at such time
situated.

§ 1745. Notice of filino.] The tiling of a mortgage of personal
property, in conformity to the provisions of this article, operates as
notice thereof to all subsequent purchasers and incumbrancers of so
much of said property as is at the time mentioned in the preceding
section situated in the county or counties wherein such mortgage or
authenticated copy thereof, is filed.

§ 1746. Property in transit— of OAfeRiBR.] 1. For the purposes
of this article property in transit from the possession of the mortgagee
to the county of the residence of the mortgagor, or to a location for
use, is, during a reasonable time for transportation, to be taken as
situated in the countj^ in which the mortgagor resides, or where it is
intended to be used.

2. For a like purpose personal property used in conducting the
business of a common carrier is to be taken as situated in the county
in which the principal office or place of business of the carrier is
located.

§ 1747. Valid only where duly filed.] A single mortgage -of
personal property, embracing several things of such character, or so
situated, that by the provisions of this article, separate mortgages
upon them would be required to be filed in different counties, is only

98

434 LiBK. Civil Code.

valid in respect to' the things as to which it is duly filed; but a copy
of the original mortgage may be authenticated by the register of deeds
in whose office it is nl^, and such copy /be filed in any other county
with the same effect as to the property therein that the original could
have been.
tV*^**^' ^%) § 1748. FiujNro valid threb tbabs — renewal.] A mortgage of per-
sonal property ceases to be valid, as against creditors of the mortgagor,
and subsequent purchasers or incumbrancers in good faith, after the
expiration of three years from the filing thereof, unless, within thirty
days njBxt preceding the expiration of such term, a copy of the mort-
gage, and a statement of the amount of existing debt for which the
mortgagee claims a lien, sworn to and subscribed by him, are filed
anew in the office of the register of deeds, in the county in which the
mortgagor then resides. And in like manner the mortgage and state-
ment of debt must be again filed every three years, or it ceases to be
valid, as against the parties above mentioned.

§1749. Execution — two witnesses.] A mortgage of personal
property mus£ be signed by the mortgagor in the presence of two
persons who must sign the same as witnesses thereto, and no further
proof or acknowledgment is required to admit it to be filed.

§ 1750. How FILED — CAREFUL CUSTODY — OANOELLATiON.] The register
, of deeds of each of the several counties must receive and file all such
instruments as are offered to him, and must keep the same in his
office in regular and orderly file, for the public information, and must
not permit them or any of them to be removed from his office until
canceled. Every such mortgage may be canceled by the register of
deeds upon the presentation to him of a receipt for the sum, money,
or property secured, or an acknowledgment of satisfaction thereof
signed by the mortgagee.

§ 1751. Reoistrt INDEX — ENTRIES.] Evory register of deeds with
whom any such mortgage or authenticated copy tnereof is filed, most
indorse a number upon the same in regular order, together with the
time of receiving the same, and .must enter the name of every party
thereto in a book kept for that purpose, alphabetically, placing mortr
gagors and mortgagees under a separate head, and statins in separate
columns, opposite each name, the number indorsed upon the morteagfe,
the date thereof, and of the filing, the amount secured thereby, a bnef
of the substance thereof not otherwise entered, and the time at which
it is due. A mortgage is not to be deemed defectively filed by reason
of any errors in the copy filed, which do not tend to mislead a party
interested ; and the negligence of the officer with whom a mortgage is
filed does not prejudice the rights of the mortgagee.

?1752. When mortoaoor may take property.] If the mortgagor
untarily removes or permits the removal of tne mort^ged prop-
erty from the county in which it was situated at the time it was
mortgaged, the mortgagee may take possession and dispose of the
property as a pledge fcr the payment of the debt, though the debt is
not due.

§ 1753. May be attached.] Personal property mortgaged may be
taken under attachment or execution issued at the suit oi a creditor
of a mortgagor.

Civil Code, ' Lien. 485

§ 1754. MoRTOAGBE*8 BIGHTS.] Before the property is so taken, the
officer must pay or tender to the mortgagee the amount of the mort-
gage debt and interest, or must deposit tne amount thereof with the
county treasurer, payable to the order of the mortgagee.

§ 1755. Peoobbds how applied.] When the property thus taken is
sold under process, the officer must apply the proceeds of the sale as
foUows :

1. To the payment of the sum paid to the mortgagee, with interest
from the date of such payment; and,

2. The balance, if any, in like manner as the proceeds of sales under
execution are applied in other cases,

§ 1756. Ship mobtoages.] No mort^a^e of any ship or vessel, or
part thereof, of the United States, shall be valid against any person,
(other than the mortgagor, his heirs and devisees, and persons having
actual notice thereof), unless such mortgage is recorded in the office
of the collector of the customs where such vessel is registered or
enrolled. [Sec. 4192 R. S. of U. S.]

2. Sections 1744 to 1755 inclusive, of this article, do not, therefore,
apply to any mortgage of a ship or vessel ( or any part thereof) which
is required as above, oy act of congress, to be recorded in a particular
place or manner.

CHAPTER III.

PLEDGE.

§ 1757. Dbeinition.] Pledge is a deposit of personal property by
way of security for the performance of another act.

§ 1758. CoNSTRuoTiON,] Evory contract by which the possession of
personal property is transferred, as a security only, is to be deemec) a
pledge.

§ 1759. Possession necessary.] The lien of a pledge is dependent
on jpossession, and no pledge is valid until the property pledged is
delivered to the pleagee, or to a pledge-holder, as hereafter
prescribed.

§ 1760. Increase.] The increase of property pledged is pledged
with the property.

g 1761. Lien upon hen.] One who has a lien upon property may
pledge it to the extent of his lien.

§ 1762. Pledge by apparent owner,] One who has allowed another
to assume the apparent ownership of property for the purpose of
making any transfer of it, cannot set up his own title, to defeat a
pledge of the property, made by the other, to a pledgee who received
the property in good faith, in the ordinary course pf business, and
for value.

§ 1763. For other person.] Property may be pledged as security
for the obligation of another person than the owner, and in so doing
the owner has all the rights of a pledgor for himself, except as here-
inafter stated.

4fit Lien. ' Civil Codt.

§1764. Pledge-holder.] A pledgor and pledgee may agree upon a
third person with whom to deposit the property pledged; who, if he
accepts the deposit, is called a pledge-holder.

§ 1765. Cannot withdraw.] One who pledges property as security
for the obligation of another, cannot withdraw the property pledged
otherwise tnan as a pledgor for himself might; and, if he receives
from the debtor a consideration for the pledge, he cannot withdraw it
without his consent.

§ 1766. Exoneration of holder.] A pledge-holder for reward cannot
exonerate himself from his undertaking; and a gratuitous pledge-
holder can do so only by giving reasonable notice to the pledgor and
pledgee to appoint a new pledge-holder, and, in case of their failure to
agree, by depositing the property pledged with some impartial person,
who will then be entitled to a reasonable compensation for his care of
the same.

§ 1767. Duties.] A pledge-holder must enforce all the rights of the
pledgee, unless authorized by him to waive them.

§ 1768. Depositary.] A pledgee, or a pledge-holder for reward,
assumes the duties and liabilities of a depositary for reward.

§ 1769. Same.] A gratuitous pledge-holder assumes the duties and
liabilities of a gratuitous depositary.

§ 1770. Misrepresentation.] Where a debtor has obtained credit,
or an extension of time, by a -fiwHswUilent misrepresentation of the
value of property pledged by or for him, the creditor may^ demand a
further. . pledge to correspond with the value represented; and in
default thereof may recover his diebt immediately, though it be not
actually due.

§ 1771. Sale — when.] When performance of the act for which a
pledge is given is due, in whole or in part, the pledgee may collect
what is due to him by a sale of property pledged, subject to the rules
and exceptions hereinafter prescribed.

§ 1772. Demand required.] Before property pledged can be sold,
and after performance oi the act for which it is security is due, the
pledgee must demand performance thereof from the debtor, if the
debtor can be found.

§ 1773. Notice to pledgor.] A pledgee must give actual notice to
the pledgor of the time and place at which the property pledged will
be sold, at such a reasonable time before the sale, as will enable the
pledgor to attend.

§ 1774. Waiver.] Notice of sale may be waived by a pledgor at
any time; but is not waived by a mere waiver of demand of per-
formance.

§ 1775. How DONE.] A debtor or pledgor waives a demand of
performance as a condition precedent to a sale of the property pledged,
by a positive refusal to perform, after performance is due, but cannot
Waive it in any other manner except by contract.

§ 1776. Auction.] The sale by a pledgee, of property pledged, must
be made by public auction, in the manner and upon the notice to the
public usual at the place of sale, in respect to auction sales of similar
property; and must be for the highest obtainable price.

§ 1777. Securities.] A pledgee cannot sell any evidence of debt

Civil Code. Lixn. 487

pledged to him, except the obligations of governments, states, or
corporations; but he may collect the same when due.

§ 1778. Sale kequired.] Whenever property pledged can be sold
for a price sufficient to satisfy the claim of the pledgee, the pledgor
may require it to be sold, and its proceeds to be applied to such satis-
faction, when due.

§ 1779. Account.] After a pledgee has lawfully sold property
pledged, or otherwise collected its proceeds, he may deduct therefrom
the amount due under the principal obligation, and the necessary
expenses of sale and collection, and must pay the surplus to the
pledgor, on demand.

§ 1780. Same.) When property pledged is sold by order of the
pledgor before tne claim of the pledgee is due, the latt-er may retain
out of the proceeds all that can possibly become due under his claim
until it becomes due.

§ 1781. Cannot purchase.] A pledgee or pledge-holder cannot pur-
chase the property pledged except bv direct aealing with the pledgor.

§ 1782. Foreclosure. Instead of selling property pledged as here-
inbefore provided, a pledgee may foreclose the right of redemption
by a judicial sale under the direction of a competent court; and in
that case may be authorized by the court to purcnase at the sale.

CHAPTER IV.

BOTTOMRY.

§ 1783. Definition.] Bottomry is a contract by which a ship or
its freightage is hypotheticated'Tcs*^ecurity for a loan, which is to
be repaid only in case the ship survives a particular risk, voyage, or
period.

§ 1784. Owner may.] The owner of a ship may hypothecate it or
its freightage, upon bottomry, for any lawful purpose, and at any time
and place.

§ 1785. Master may.] The master of a ship may hypothecate it
upon bottomry, only for the purpose of procuring repairs or supplies
wnich are necessary for accomplishing the objects of the voyage, or
for securing the safety of the ship.

§ 1786. bAME — LIMITED.] The master of ship can hypothecate it
upon bottomry, only when he cannot otherwise relieve the necessities
01 the ship, and is unable to reach adequate funds of the owner, or to
obtain any upon the personal credit of ihe owner, and when previous
communication with him is precluded by the urgent necessity of the
case.

§ 1787. Same- freightage.] The master of a ship may hypothe-
cate freightage upon bottomry, under the same circumstances as those
which authorize an hypothecation of the ship by him.

§ 1788. Interest.] Upon a contract of bottomry, the parties may
lawfully stipulate for a rate of interest higher than that allowed by
the law upon other contracts. But a competent court may reduce
the rate stipulated when it appears unjustifiable and exorbitant.

488 Lien. Civil Code.

§ 1789. Foreclosure.] A lender upon a contract of bottomry,
made by the master of a ship as such, may enforce the contract,
though the circumstances necessary to authorize the master to hypoth-
ecate the ship did not in fact exist, if, after due diligence and inquiry,
the lender had reasonable grounds to believe, and did in good faith
believe, in the existence of such circumstances.

§ 1790. Void.] A stipulation, in a contract of bottomry, imposing
any liability for the loan independent of the maritime risks, is void.

§ 1791. No RECOVERY.] In case of a total loss of the thing hypoth-
ecated, from a risk to which the loan was subject, the lender upon
bottomry, can recover nothing; in case of a partial loss, he can
recover only to the extent of the net value to the owner of the part
saved.

§ 1792. When loan due.] Unless it is otherwise expressly agreed,
a bottomry loan becomes due immediately ujpon the termination of
the risk, although a term of credit is specified m the contract.

§ 1793. Lost by omission.] A bottomry lien is independent of
possession, and is lost by omission to enforce it within a reasonable
time.

§ 1794. Preference over other lien.] A bottomry lien, if created
out of a real or apparent necessity in good faith, is preferred to every
other lien or claim upon the same thing, excepting only a lien for
seamen's wages, a subsequent lien of materialmen for supplies or
repairs, indispensible to the safety of the ship, and a subsequent lien for
salvage.

§ 1795. Among each other.] Of two or rnore bottomry liens on
the same subject, the latter in date has preference, if created out of
necessity.

CHAPTER V.

REBPONDENTIA.

§ 1796. Definition.] Respondentia is a contract by which a cargo,
or some part thereof, is hypothecated as security for a loan, the repay-
ment of which is dependent on maritime risk.

§ 1797. By owner.] The owner of cargo may hypothecate it upon
respondentia, at any time and place, and lor any lawful purpose.

§ 1798. By master.] The master of a ship may hypothecate its
carKO upon respondentia, only in a case in which he would be author-
ized to hypothecate the ship and freightage, but is unable to borrow
suflBcient money thereon for repairs or supplies, which are necessary
for the successful accomplishment of the voyage; and he cannot do so,
even in such case, if there is no reasonable prospect of benefiting
the cargo thereby.

§ 1799. Reference.] The provisions of sections 1788 to 1795 apply
equally to loans on respondentia.

§ 1800. Cargo owner.] The owner of a ship is bound to repay to
the owner of its cargo all which the latter is compelled to pay, under
a contract of respondentia made by the master, in order to discharge
its lien.

CimlCode, LiUN. 439 •

CHAPTER VI.

OTHER LIENB.

§ 1801. For price ot realty.] One who sells real property has a
special or vendor's lien thereon, independent of possession, for so much
of the price as remains unpaid, and unsecured otherwise than by the
personal obliption of the buyer. .

§ 1802. Waiver of same.] Where a buyer of teal property gives to
the seller a written contract for payment of all or part of the price,
an absolute transfer of such contract by the seller, waives his hen to
the extent of the sum payable under the contract, but a transfer of such
contract in trust to pay debts, and return the surplus, is not a waiver
of the lien.

§ 1803. Certain liens valid.] The liens defined in sections 1801
and 1805 are valid against every one claiming under the debtor, except
a purchaser or incumbrancer in good faith and for value.

g 1804. Same as plbboe.] One who sells personal property has a
special lien thereon, dependent on possession for its price, if it is in his
possession when the price becomes payable; and may enforce his lien
in like manner as if the property was pledged to him for the price.

§ 1805. Purchaser's lien.] One who pays to the owner any part of
the price of real property, under an agreement for the sale thereof, has
a special lien upon the property, inoependeni of possession, for such
part of the amount paid as he may be entitled to recover back, in case
of a failure of consideration.

§ 1806. For services.] Every person who, while lawfully in pos-
session of an article of personal property, renders any service to the
owner thereof, by labor or skill employed for .the protection, improve-
ment, safe keeping, or carriage thereof, has a special lien thereon,
dependent on possession, for the compensation, if any, which is due to
him from the owner for such service.

§ 1807. Of factor.] A factor has a general lien, dependent on pos-
session, for all that is due to him as sucn, upon all articles of commer-
cial value that are intrusted to him by the same principal.

§ 1808. Banker.] A banker has a general lien, dependent on pos-
session, upon all property in his hands belonging to a customer, for the
balance due to him nrom such customer in tne course of the business.

§ 1809. Ship master.] The master of a ship has a general lien,
independent of possession, upOn the ship and freightage, for advances
necessarily made, or liabilities necessarily incurred by him for the
benefit of the ship, but has no lien for his wages.

§ 1810. Seamen.] The mate and seamen of a ship have a general
lien, independent or possession, upon the ship and freightage for their
wages, which is superior to every other lien.

§ 1811. By levy.] An officer, who levies an attachment or execu-
tion upon personal property, acquires a special lien, dependent on
possession, upon such property, which authorizes him to hold it until
the process is discharged or satisfied, or a judicial sale of the property
is had.

440 Lien. Civil Code.

m

§ 1812. Various liens.] Innkeepers, boarding-house keepers, attor-
neys-at-law, and others, have liens which are denned and regulated by
and in the various codes.

§ 1813. Judgment.] The lien of a judgment is regulated by the
code of civil procedure.

§1814. Mechanics.] 1. The liens of mechanics, for materials and
services upon real property, are regulated by the code of civil pro-
cedure.

2. k person who makes, alters, or repairs any article of personal
property, at the request of the owner or legal possessor of the property,
has a lien on the same for his reasonable charges for work done and
materials furnished, and may retain possession of the same until the
charges are paid. If not paid within two months after the work is
done, the person may proceed to sell the property at public auction,
by giving ten days' public notice of the sale, by advertising in some
newspaper published in the county in which the work was done;
or, if there be no newspaper published in the county, then by posting
up notices of the sale in three of the most public places in the town
wnere the work was done, for ten days previous to the sale. The pro-
ceeds of the sale must be applied to the discharge of the lien, and the
cost of keeping and selling the property; the remainder, if any, must
be paid over to the owner thereof.

CHAPTER VII.

STOPPAGE IN TRANSIT.

§ 1815. When operative,] A seller or consignor of property, whose
claim for its price or proceeds has not been extinguished, may, upon
the insolvency of the buyer or consignee becoming known to him after
parting with the property, stop it while on its transit to the buyer or
consignee, and resume possession thereof.

§ lyl6. Insolvency defined.] A person is insolvent, within the
meaning of the last section, when he ceases to pay his debts in the
manner usual with persons of his business, or when he declares his
inability or unwillingness to do so.

§ 1817. Transit ends.] The transit of property is at an end when
it comes into the posession of the consignee, or into that of his agent,
unless such agent is employed merely to forward the property to the
consignee.

§ 1818. How effected.] Stoppage in transit can be eflFected only
by notice to the carrier or depositary of the property, or by taking
actual possession thereof.

§ 1819. Effect of.] Stoppage in transit does not of itself rescind
a sale, but is a means of enforcing the lien of the seller.

Civil Code, Negotiable Insteumbnts. 441

TITLE XV.

NEGOTIABLE INSTRUMENTS.

Chapter I. Negotiable Instruments in General.

II. Bills of Exchange.

III. Promissory Notes.

IV. Cheques.

V. Bank Notes and Certificates of Deposit.

CHAPTER I.

*

MKUOTIABLE INSTRUMENTS IN GENERAL.

Article I.

General Definitions.

II.

Interpretation.

III.

Indorsement.

IV.

Presentment for Payment.

V.

Dishonor.

VI.

Excuse of Presentment and Notice

VII.

Extinction.

Article I. -General Definitions.

§ 1820. Scope op title.J The provisions of this title apply only to
negotiable instruments, as definea in this article.

8 1821. Definition.] A negotiable instrument is a written promise
or request for the payment of a certain sum of money, to order or
bearer, in conformity te the provisions of this article.

§ 1822. Payable in money— cbrtaiNv] A negotiable instrument
must be made payable in money only, and without any condition not
certain of fulfillment.

§ 1823. Payee certain.] The person to whose order a negotiable
instrument is made payable, must be ascertainable at the time the
instrument is made.

§ 1824. Not included.] A negotiable instrument may give to the
payee an option between the payment of the sum specified therein,
and the performance of another act; but as to the latter, the instru-
ment is not within the provisions of this title.

§ 1825. Date, place, and time.] A negotiable instrument may be
with or without date, and with or without designation of the time or
place of payment.

442 Nbgotia^le Instrumewts. Civil Code.

§ 1826. Collateral.] A negotiable instrument may contain a
pledge of collateral security, witn authority to dispose thereof.

§ 1827. Single contract.] A negotiable instrument rpust not
contain any other contract than such as is specified in this article.
, § 1828. Nominal pate.] Any date may be inserted by the maker
of a negotiable instrument, whether past, present, or future, and the
instrument is not invalidated by his death or incapacity at the time of
the nominal date.

§ 1829. Classified.] There are six classes of negotiable instru-
ments, namely:

1. Bills of exchange.

2. Promissory notes.

3. Bank notes.

4. Cheaues.

5. Bonds.

6. Certificates of deposit.

Article II. — Interpretation of Negotiable Instruments.

§ 1830. When payable.] A negotiable instrument which does not
specify the time of payment, is payable immediately.

§ 1831. Where.] A negotiable instrument which does not specify
a place of payment, is payable at the residence or place of business of
the maker, or wherever he may be found.

§ 1832. . To WHOM.] An instrument, otherwise negotiable in form,
payable to a person named, but adding the words, "or to his order/' or
"or to bearer," or words equivalent thereto, is in the former case pay-
able to the written order of such person, and the latter case, payable
to the bearer.

§ 1833. Same as to bearer.] A negotiable instrument, * made
payable to the order of the maker, or of a fictitious person, if issued by
the maker for a valid consideration, without indorsement, has the
same effect against him and all other persons having notice of the
facts, as if payable to the bearer.

§ 1834. Same.] A negotiable instrument, made payable to the order
of a person obviously fictitious, is payable to the bearer.

§ 1835. Consideration presumed.] The signature of every drawer,
acceptor, and indorser of a negotiable instrument, is presumed to have
been made for a valuable consideration, before the maturity of the
instrument, and in the ordinary course of business.

Article III. — Indorsement.

§ 1886. Definition.] One who writes his name upon a negotiable
instrument, otherwise than as a maker or acceptor, and delivers it
with his name thereon to another person, is called an indorser, and
his act is c-alled indorsement.

§ 1837. Agreement to indorse.] One who agrees to indorse a
negotiable instrument is bound to write his signature upon the back
of the instrument, if there is sufficient space thereon for that purpose.

§ 1888. On annexed paper.] When there is not rooiA for a signa-
ture upon the back of a negotiable instrument, a signature eauivalent
to an indorsement thereof may be made upon a paper annexed thereto.

Civil Code. Negotiable Instruments. 443

§ 1889. Classified.] An indorsement may be general or special.

1 1840. General.] A' general indorsement is one by whicb no
indorsee is named.

§ 1841. Special.] A special indorsement specifies the indorsee.

§ 1842. Changed to special.] A negotiable instrument bearing a
general indorsement, cannot be afterwards specially indorsed; but any
lawful holder may turn a general indorsement into a special one by
writing above it a direction for payment to a particular person.

§ 1843. Not negotiable.] A special indorsement may, by express
words for that purpose, but not otherwise, be so made as to render the
instrument not negotiable.

§ 1844. Warranties implied.] Every indorser of a negotiable
instrument warrants to every subsequent holder thereof, who is not
liable thereon to him:

1. That it is in all respects what it purports to be.

2. That he has a good title to it.

3. That the signatures of all prior parties are binding upon them.

4. That if the instrument is dishonored, the indorser will, upon
notice thereof duly given to him, or without notice, where it is excused
by law, jpay the same in full, with interest, unless exonerated under
the Dro visions of sections 1894, 1932 or 1934.

§ 1845. Liability.] One man who indorses a negotiable instrument
before it is delivered to the payee, is liable to the payee thereon, as
an indorser.

§ 1846. Qualified indorsement.] An indorser may qualify his
indorsement with the words, "without recourse " or equivalent words;
and upon such indorsement he is responsible only to the same extent
as in the case of a transfer without indorsement.

§1847. Same.] Except as otherwise prescribed by the last section,
an indorsement without recourse has the same effect as any other
indorsement.

§ 1848. Prior indorsers.) An indorsee of a negotiable instrument
has the same rights against every prior narty thereto, that he would
have had if the contract had been made dii-ectly between them in the
first instance.

§ 1849. Rights of guarantor.] An indorser has all the riehts of a
guarantor, as defined by the chapter on guaranty in general, and is
exonerated from liability in like manner.

§ 1850. Accomodation.] One who indorses a negotiable instrument,
at the request, and for the accomodation of another party to the
instrument, has all the rights of a surety, as defined by the chapter on
suretyship, and is exonerated in like manner, in respect to every one
having notice of the facts, except that he is not entitled to contribu-
tion from subsequent indorsers.

§ 1851. Not exonerated.] The want of consideration for the
undertaking of a maker, acceptor, or indorser of a negotiable instru-
ment, does not exonerate him trom liability thereon to an indorsee in
good faith for a consideration.

§ 1858. Definition.] An indorsee in due course is one who, in good
faith, in the ordinary course of business, and for value, before its
apparent maturity or presumptive dishonor, and without knowledge

444 Negotiable Instruments. Civil Code.

of its actual dishonor, acquires a negotiable instrument duly indorsed
to him, or indorsed generally, or payable to the bearer.

§ 1853. Absolute title.] An mdorsee of a negotiable instrument,
in due course, acquires an absolute title thereto, so that it is valid in
his hands, notwitnstanding any provision of law making it generally
void or voidable, and notwithstanding any defect in the title of the
person from whom he acquired it.

§ 1854. Blank indorsement,] One who makes himself a party to
an instrument intended to be negotiable, but which is left wnolly or
partly in blank, for the purpose of filing afterwards, is liable upon the
mstrument to an indorsee tnereof in due course, in whatever manner
and at whatever time it may be filled, so long as it remains negotiable
in form.

Article IV.- -Presentment for Payment.

§ 1855. Demand.] It is not necessary to make a demand of pay-
ment upon the principal debtor in a negotiable instrument, in order to
charge him; but if the instrument is by its terms payable at a
specified place, and he is able and willing to pay it there at maturity,
such ability and willingness are equivalent to an ofter of payment
upon his part.

§ 1856. How PRESENTED.] Presentment of a negotiable instrument
for payment when necessary must be made as follows, as nearly as by
reasonable diligence it is practicable:

1. The instrument must be presented by the holder.

2. The instrument must be presented to the principal debtor, if he
can be found at the place where presentment should be made; and if
not, then it must be presented to some other person having charge
thereof, or employed therein, if one can be found there.

3. An instrument which specifies a place for its payment must be
presented there; and if the place specified includes more than one
house, then at the place of residence or business of the principal
debtor, if it can be found therein.

4. An instrument which does not specify a place for its payment
must be presented at the place of residence or business of the prin-
cipal debtor, or wherever he may be found, at the option oi the
presentor; and,

5. The instrument must be presented upon the day of its maturity,
or, if it be payable on demand, it may be presented upon any day. It
must be presented within reasonable hours; and, if it be payable at a
banking house, within the usual banking hours of the vicinity, but, by
the consent of the person to whom it should be presented, it may be
presented at any hour of the day.

6. If the principal debtor have no place of business, or if his place
of business or residence cannot, with reasonable diligence, be ascer-
tained, presentment for payment is excused.

§ 1857. Apparent maturity.] The apparent maturity of a nego-
tiable instrument, payable at a particular time, is the day on which
by its terms it becomes due; or, when that is a holiday, the next
business day.

§ 1858. Presumed dishonor.] A bill of exchange, payable at a
certain time after sight, which is not accepted within ten days after

Civil Code. Negotiable Instruments. 445

its date, in addition to the time which would suffice, with ordinary
diligence, to foi-ward it for acceptance, is presumed to have been
dishonored.

§ 1859. Maturity defined.] The apparent maturity of a bill of
exchange, payable at sight or on demand, is:

1. If it bears interest, one year after its date; or,

2. If it does not bear interest, ten days after its date, in addition to
the time which would suffice, with ordinary diligence, to forward it
for acceptance.

§ 186(}. Same of note.J The apparent maturity of a promissory
note, payable at sight or on demand, is:

1. If it bears interest, one year after its date; or,

2. If it does not bear interest, six months after its date.

§ 1861. Added time.] Where a promissory note is payable at a
certain time after sight or demand, such time is to be added to the
periods mentioned in the last section.

§ 1862. Conditions required.] A party to a negotiable instrument
may require, as a condition concurrent to its payment by him:

1. That the instrument be surrendered tonim, unless it is lost or
destroyed, or the holder has other claims upon it; or,

2. If the holder has a right to i-etain the instrument, and does retain
ifcr then that a receipt for the amount paid, or an exoneration of the
party paying, be written thereon; or,

3. If the instrument is lost or destroyed, then that the holder ^ive to
him a bond, executed by himself and two sufficient sureties, to indem-
nify him against any' lawful claim thereon.

Article V. — Dishonor of Negotiable Instruments.

§ 1863. Dishonor defined.] A negotiable insti-ument is dishonored
when it is either not paid, or not accepted, ac<*.ording to its tenor, on
presentment for the purpose, or without presentment, where that is
excused.

§ 1864. Notice how given.] Notice of the dishonor of a negotiable
instrument may be given:

1. By a holder thereof; or,

2, By any party to the instrument who might be compelled to pay it
to the holder, and who would, upon taking it up, have a rignt to
reimbursement from the party to whom the notice is given.

§ 1865. Form of notice.] A notice of dishonor may be given in any
form which describes the instrument with reasonable certainty, and
substantially ihforms the party receiving it that the instrument has
been dishonored.

§ 1866. How SERVED.] A notice of dishonor may be given:

1. By delivering it to the party to be- charged, personally, at any
place; or,

2. By delivering it to some person^ of discretion at the place of
residence or business of such party, apparently acting for him; or, ♦

8. By properly folding the notice, directing it to the party to be
charged at his place of residence, according to the best information
that the person giving the notice can obtain, depositing it in the post
office most conveniently accessible from the place where the present-
ment was made, and paying the postage thereon.

446 ' Negotiable Instruments. Civil Code,

§ 1807. Service after death.] In case of the death of a party to
whom notice of dishonor should otherwise be given, .the notice must
be given to one of his personal representatives; or if there are none,
then io any member of his family who resided with him at his death;
or if there is none, then it must be mailed to his last place of residence,
as prescribed by subdivision three of the last section.

§ 1868. Same valid.] A notice of dishonor sent to a party after his
death, but in ignorance thereof, and in good faith, is valid.

§ 1869. If not by mail, when.] Notice of dishonor, when given by
the bolder of an instrument, or his agent, otherwise than by mail,
must be given on the day of his dishonor, or on the next business day
thereafter.

§ 1870. Notice by mail.] When notice of dishonor is given hj
mail, it must be deposited in the post oflSce in time for the first mail
which closes after noon of the first business day succeeding the dis-
honor, and which leaves the place where the instrument was
dishonored, for the place to which the notice should be sent.

§ 1871. By agent.] When the holder of a negotiable instrument,
at the time of its disnonor, is a mere agent for the owner, it is sufficient
for him to give notice to his principal in the same manner as to an
indorser, and his principal may give notice to any other party to be
charged, as if he were himself an indorser. And if an agent of the
owner employs a sub-agent, it is sufficient for each successive agent or
sub-agent to give notice in like manner to his own principal.

g 1872. Notice to pbior parties.] Every party to a negotiable
instrument receiving notice of its dishonor, has the like time^. there-
after to give similar notice to prior parties, as the original holder had
after its dishonor. But this additional time is available only to the
particular party entitled thereto.

§ 1873. Benefits all pabtibb.1 A notice of the dishonor of a
negotiable instrument, if valid in favor of the party giving it, inures
to the benefit of all other parties thereto, whose right to give the
like notice has not then been lost

Article VI. — Excuse of Presentment and Notice.

§ 1874. EyousES classified.] Notice of dishonor is excused:

1. When the party by whom it should be given cannot, with reason-
able diligence, ascertain either the place of residence or business of the
party to DC charged; or,

2. When there is no post office communication between the town of
the party by whom the notice should be given, and the town in which
the place of residence or business of the party to be charged is
situated; or,

3. When the party to be charged is the same person who dishonors
the instrument; or,

4» When the notice is waved* by the party entitled thereto.

§ 1875. Presentment EXCUSED.] Presentment and notice are excused
as to any party to a negotiable instrument, who informs the holder,
within ten days before its maturity, that it will be dishonored.

§ 1876. Security excuses.] If, before or after the maturity of an
instrument, an indorser has received full security for the amount

Civil Code. Nsootiable Instruments. 447

thereof, or the maker has assigned all his estate to him, as such secur-
ity, presentment and notice to him are excused.

§ 1877. Delay excused.] Delay in presentment, or in giving notice
of dishonor, is excused, when caused by circumstances which the
party delaying could not have avoided by the exercise of reasonable
care and diligence.

§ 1878. Extent of waivbb.] A waiver of presentment waives
notice of dishonor, also, unless the contrary is expressly stipulated;
but a waiver of notice does not waive presentment.

§ 1879. Waivee of protest.] A waiver of protest on any negoti-
able instrument other than a foreign bill of exchange, waives
presentment and notice.

Article VII. — Extinction of Negotiable Inbteuments.

§ 1880. What does.] The obligation of a party to a negotiable
instrument is extinguished:

1. In like manner with that of parties to contracts in general ; or,

2. By payment of the amount due upon the instrument, at or after
its maturity, in good faith and in the ordinary course of business, to
any person ^having actual possession thereof, and appearing, by its
terms, to be entitled to pavment.

y§ 1881. Revivor.] If, after its extinction, a negotiable instrument
comes into the possession of an indorsee in due course, the obligation
thereof revives m his favor.

i*tm

CHAPTER 11.

bills of exchanob.

Article I. Form and Interpretation.

II. Days of Grace.

III. Presentment for Acceptance.

IV. Acceptance.

V. Acceptance or Payment for Honor.

VI. Presentment for Payment.

VIL Excuse of Presentment and Notice.

VIII. Foreign Bills.

Article I. — Form and Interpretation of a Bill.

§ 1882. Form of bill.! A bill of exchange is an instrument,
negotiable in form, by which One, who is called the drawer, requests
another, called the drawee, to pay a specified sum of money.

§ 1888. Additional drawee.] A bill of exchange may give the
name of any person in addition to the drawee, to be resorteci to in case
of need.

448 Negotiable Instruments. Civil Cod^..

§ 1884. Parts of a set.] A bill of exchange may be drawn in any
number of parts, each part stating the existence of the others, and all
forming one set.

§ 1885. In three parts.] An agreement to draw a bill of exchange
binds the drawer to execute it in three parts, if the other party to the
agreement desires it.

§ 1886. One part for whole.] Presentment, acceptance, or pay-
ment, of a single part in a set of a bill of exchange, is sufficient for the
whole.

§ 1887. Place op payment.] A bill of exchange is payable:

1. At the place where, by i^ terms, it is made payable; or,

2. If it specify no place of payment, then at the place to which it is
addressed; or,

3. If it be not addressed to any place, then at the place of residence
or business of the drawee, or wherever he may be found. If the
drawee has no place of business, or if his place of business or residence
cannot with reasonable diligence be ascertained, presentment for
payment is excused, and th6 bill may be protested for non-payment.

§ 1888. Drawer.] The rights and obligations of the drawer of a
bill of exchange, are the same as those of the first indorser of any
other negotiable instrument.

Ahtiolb IJ.HtPays of Grace.

§ 1889. What instruments have grace.] Days of grace are allowed,
unless there be an express stipulartien-to the contrary, a,s follows:

1. On all bills of exchange, or drafts, payable at sight whether for-
eign or inland, the party or parties upon whom the same are drawn shall
have three days of grace after presentation for payment of the same;
but Sundays and holidays are excluded from the computation of the
aforesaid days of grace.

2. The like days of grace, to be computed as above, shall be allowed
for the payment of all promissory notes, bills of exchange, and drafts,
on the face of which time is given or specified; and,

3. Notes due on demand shall also be subject to the like days of
grace, in manner as aforesaid, after demand is made for the payment
of the same.

Article III. — Presentment for Acceptance.

§ 1890. Before paybtent.] At any time before a bill of exchange
is payable the holder may present it to the drawee for acceptance, and
if acceptance is refused the bill is dishonored.

§ 1891. Manner of presentment.] Presentments for acceptance
must be made in the following manner, as nearly as by reasonable
diligence it is practicable. >

1. The bill must be presented by the holder or his a^ent.

2. It must be presented on a business day, and witnin reasonable
hours.

8. It must be presented to the drawee, or, if he be absent from his
place of residence or business, to some person having charge thereof,
or employed therein; and.

OinU Co(i4i. Nbgotiabljb iNSXRUMia^TS. 449

4. The drawee, on such presentment, may postpone his acceptance
or refusal Until the next day. If the drawee nave no place of busi-
ness, or if his place of business or residence cannot with reasonable
diligence be ascertained, presentment for acceptance is excused, and
the bill may be protested for non-acceptance.

§ 1892. Joint drawees.] Presentment for acceptance to one of
several joint drawees, and refusal by him, dispenses with presentment
to the others.

. § 1898. Drawee in need.] A bill of exchange which specifies a
drawee in case of need, musit be presented to him for acceptance or
payment, as the case may be, berore it can be treated as dishonored.

§ 1894. When made.] When a bill of exchange is payable at a
specified time after sight, the drawer and endorsers are exonerated, if
it is not presented for acceptance within ten days after the time which
would suffice, with ordinary diligence, to forward it for acceptance,
unless presentment is excused.

Article IV. — Aoobptanob.

§ 1895. How MADE.] An acceptance of a bill must be made in
writing, by the drawee, or by an acceptor for honor; and may be made
by the acceptor writing his name across the face of the bill, with or
without other words.

. §. 1896. Holder entitled to.] The holder of a bill of exchange, if
entitled to an acceptance thereof, may treat the bill as dishonored, if
the drawee refuses to write across its fiace an unqualified acceptance.

§ 1897. What DEEMED sufficient.] - The holder of a^bill of exchange
may, without prejudice to his rights against prior parties, receive and
'treat as a sufficient acceptance:

1. An acceptance written upon any part of the bill, or upon a sepa-
rate paper.

2. An acceptance qualified so far only as to make the bill payable at
a particular place within the pity or town, in which, if the acceptance
was unqualified, it would be payable; or,

8. A refusal by the drawee to return the bill to the holder after pre-
sentment; in which case the bill is payable immediately, witnout
regard to its terms.

g 1898. Upon separate paper.] The acceptance of a bill of
exchange, by a separate instrument, binds the acceptor to one, who,
upon the faith thereof, has the bill for value, or other good considera-
tion.

§ 1899. Promise to accept.] An unconditional promise, in writing,
to accept a bill of exchange^ is a sufficient acceptance thereof^ in favor
of every person wlio, upon the faith thereof, has taken the bill for value
or other good consideration.

§ 1900. Cancellation of.] The acceptor of a bill of exchange may
cancel his acceptance at any time before delivering the bill to the
holder, and before the holder has, with the consent of the acceptor,
transferred his title to another person who has given value for it upon
the faith of such acceptance.

§ 1901. Admissions by.] The acceptance, of a bill of exchange
ad^nits the signature of the drawer, but does not admit the signature
• of any indorser to be genuine.

»9

450 Negotiable iNSTRUMENTd. Civil Code.

Article V. — Acceptance oe Payment foe Honoe.

§ 1902. When may be done.] On the dishonor of a bill of exchange
by the drawee, and, in case of a foreign bill, after it has been duly pro-
tested, it may be accepted or paid by any person, for the honor of any
party thereto.

§ 1903. What hqldee must accept.1 The holder of a bill of exchange
is not bound to allow it to be acceptea for honor, but is bound to accept
payment for honor.

1 1904. Foe honoe, how made.] An acceptor or payer for honor
must write a memorandum upon the bill, stating therein for whose
honor he accepts or pays, and must give notice to such parties, with
reasonable diligence, of the fact of such acceptance or payment.
Having done so, he is entitled to reimbursement &om such parties,
and from all parties prior to them. , , .

§ 1905. How enfOeced.] A bill of exchange which has been
accepted for honor, must be presented at its maturity to the drawee
for payment, and notice of its dishoner by him must be given to the
acceptor for honor in like manner as to an indorser; after which the
acceptor for honor must pay the bill.

§ 1906. Notice by holuee eequieed.] The acceptance of a bill of
exchange for honor does not excuse the holder from giving notice of
its dishonor by tfie drawee.

Aetiols VI. — Peesentmbnt foe Payment.

§ 1907. Place.] If a bill of exchange is by its terms jjayable at a
particular place, and is not accepted on presentment, it must be
presented at the same place for payment, when presentment for pay-
ment is necessary.

§ 1908. Peesented when accepted.] A bill of exchange, accepted
payable at a particular place, must be presented at that place for pay-
ment, when presentment for payment is necessary, and need not be
presented elsewhere.

§ 1909. Reasonable diligence.] If a bill of exchange, payable at
sight, or on demand, without interest, is not duly presented for pay-
ment, within ten days after the time in which it could, with reasonable
diligence, be transmitted to the proper place for such presentment, the
drawer and indorsers are exonerated, unless such presentment is
excused.

§ 1910. No EXONEEATiON.] Mere delay in presenting a bill of
exchange payable with interest, at sight or on demand, does not
exonerate any party thereto.

Aetiole VIL — Excuse of Peesentment and Notice.

§ 1911. Lack op capacity to accept.] The presentment of a bill
of exchange for acceptance is excused if the drawee has not capacity
to accept it.

§ 1912. Beyond conteol.] Delay in the presentment of a bill of
exchange for acceptance is excused, when caused by circumstances
over which the holaer has no control.

Civil Code. Nbgotiable iNsrotTMBKTfi. 451

§ 1918. When forbidden.] Presentment of a bill of exchange for
acceptance or payment, and notice of its dishonor, are excused as to
the drawer, if he forbids the drawee to accept, or the acceptor to ^ pay
the bill; or if, at the time of drawing, he had no reason to oelievfe that
the drawee would accept or pay the same.

Abtiolb VIL — Foreign Bills.

§ 1914. Definition.] An inland bill of ^xchauj^e is one drawn and
payable within this territory. All others are foreign.

§ 1915. Protest neoessaby.]- Notice of the dishonor of a foreign
bill of exchange can be given only by notice of its protest.

§ 1916. Bf wHOH PBOTSBTBD.] Protest must be made by a notary
public, if with reasonable diligence one can be obtained; and if not,
then by any reputable person in the presence of two witnesses.

§ 1917. Form of protest.] Protest must be made by an instrument
in writing, giving a literal copy of the bill of exchange, with all that
is written thereon, or annexing the original; stating me presentment,
and the manner in which it was madi3; the presence or absence of the
drawee or acceptor, as the case may be; the refusal to accept, or to
pay, or the inability of the drawee to give a binding acceptance; and
m case of refusal, the reason assigned, if any; and finally protesting
against all the parties to be charged.

§ 1918. Place of pbotest.] A protest for non-acceptance must be
made in the city or town in which the bill is presented for acceptance;
and a protest for non-pa3rment in the city or town in which it is
presented for pajrment.

§ 1919. When noted.] A protest must be noted on the day of the
presentment, or on the next business day; but it may be written out
at anv time thereafter.

§ 1920. Pbotest excused.) The want of protest of a foreign bill
of exchange or delay in making the same, is excused in like cases with
the want or delay of presentment.

8 1921. Notice how given.1 Notice of protest must be given in
the same manner as notice oi dishonor, except that it may be given
by the notary who makes the protest.

§ 1922. Protest waived by bill.] If a foreign bill of exchange on
its face waives protest, notice of dishonor may oe given to any party
thereto, in like manner as of an inland bill; except tnat if any indbrser
of such a bill expressly requires i)rotest to be made, by a direction
written on the bill at or before his indorsement, protest must be made,
and notice thereof given to him and to all subsequent ihdorsers.

§ 1923. Deolabation for honor.I One who pays a foreign bill of
exchange for honor must declare, oefore payment, in the presence of
a person authorized to make protest, for whose honor he pays the
same, in order to entitle him to reimbursement.

§ 1924. Damages include.] Damages are allowed as hereinafter

Srescribed, as a full compensation for interest accrued before notice of
ishonor, re-exchange, expenses, and all other damages in favor of
holders for value only, upon bills of exchange drawn or negotiated
within this territory, and protested for non-acceptance or non-
payment.

462 Kegotiablb Inbtrttmbnts. Civil Code.

m

§ 1925. Ratss of bamagbs.] Damages are allowed under the last
section upon bills drawn upon any person:

1. If drawn upon any person in this territory, two dollars upon each
one hundred dollars of the principal sum specified in the bill.

2. If drawn upon any person out of this territor}% but in the
states of Nebraska, Iowa, Minnesota, Wisconsin, Illinois, and Missouri,
or in the territory of Montana, three dollars upon each hundred
dollars of the principal sum specified in the bill.

3. If drawn upon any person in any of the United States or terri-
tories other than those above named, five dollars upon each hundred
dollars of the principal sum specified in the bill.

4. If drawn upon any person in any place in a foreign country, ten
dollars upon eacn hundred dollars of the principal sum specified m the
bill. ,

And from the time of notice of dishonor and demand of payment,
lawful interest must be allowed upon the aggregate amount of the
principal sum specified in the bill, and the damages mentioned as
above.

§ 1926. In united states MONfcY.] If the amount of a protested
bill of exchanffe is expressed in money of the United States, damages
are estimated upon such amount without regard to the rate of
exchange.

§ 1927. In foreign money.] If the amount of a protested bill of
exchange is expressed in foreiffn money, damages are estimated upon
the value of a similar bill at the time of protest, in the place nearest
to the place where the bill was negotiated, and where such bills ate
currently sold.

■'■■;■

CHAPTER III.

PROMISSORY NOTES.

§ 1928. Definition.] A promissory note is an instrument, negoti-
able in form, whereby the signer promises to pay a specified sum of
money.

§ 1929. Certain bill a note.] An instrument in the form of a bill
of exchange, but drawn upon and aijcepted by the drawer himself, is to
be deemed a promissory note.

§ 1930. Converted into note.] A bill of exchange, if accepted,
with the consent of the owner, by a person other than the drawee, or
an acceptor for honor, becomes in effect the promissory note of such
person, and all prior parties thereto are exonerated.

§ 1931. Laws applicable.] Chapter I of this title, and sections
1889 and 1910 of this code, apply to promissory notes.

§ 1932. Delay exonerates.] If a promissory note, payable on
demand or at sight, without interest, is not duly presented for payment
within six months from its date> the indorsers thereof are exonerated
unless such presentment is excused. *

Civii Code. Genera];^ Provisions. 453

CHAPTER IV.

CHEQUBS.

§ 1933. Definition.] A cheque is a bill of exchange drawn upon a
bank or banker, or a person described as such upon the face thereof,
and payable on demand,, without interest.

§ 1934. Like bill, except.] A cheque is subject to all the provis-
ions of this code concerning bills of exchange, except that:

1. The drawer and indorsees are exonerated by delay in presentment,
only to the extent of the injury which they suflfer thereby.

2. An indorsee, after its apparent maturity, but without actual
notice of its dishonor, acquires a title equal to that of an indorsee
before such period.

3. No days of grace are allowed on cheques.

CHAPTER V.

BONDS, BANK NOTES AND CERTIFICATES OP DEPOSIT.

§ 1935. Continuing neootiablility.I A bank note remains nego-
tiable, even after it has been paid by the maker.

§ 1936. Known dishonor.] A transferree of a bond, bank note, or
certificate of deposit, after it& apparent maturity or actual dishonor
within his knowledge, acquires a title equal to that of a transferree
before such event.

TITLE XVI.

general PBOYIfilONB.

' § 1937. The contract may waive these titles.1 Except where it
is otherwise declared the provisions of the foregoing fifteen titles of
this part, in respect to the rights" and obligations of parties to con-
tracts, are subordinate to the intention of the parties, when ascer-
tained in the manner prescribed by the chapter on the interpretation of
contracts; and the benefit thereof may be waived by any psi-rty entitled
thereto, unless such waiver would be against public policy.

454 Rbuxf. Civil Code.

DIVISION FOURTH.

GENERAL PROVISIONS.

APPLICABLE TO PERSONS, PROPERTY AND OBLIGATIONS, OB TO TWO OF

THOSE 8UBJECTB.

Paet I. Relief.

IL Special Relations of Debtor and Creditor.

III. Nuisance.

IV. Maxims of Jurisprudence.

V. Definitions and u^eneral Provisions.

PART I.

Relief

TiTiB I. Relief in General.

II.- Compensatory Relief.

III. Specific Relief.

IV. Preventive Relief.

i**-

TITLE I.

RELIEF IN OENERAL.

§ 1938. Species of relief.] As a general rule, compensatibn is the
relief or remedy provided by the law of this territory for the violation
of private rights, and the means of securing their observance; and
specific and preventive relief may be given in no other cases than
those specified in this part of the civil code.

§ 1939. Relief from forfeiture.] Whenever, by the terms of an
obligation, a party thereto incurs a forfeiture, or a loss in the natm'e
of a forfeiture, by reason of his failure to comply with its provisions,
he may be relieved therefrom, upon making full compensation to the
other party, except in case of a grossly negligent, willful, or fraudulent
breach of duty.

Civil Code. Compbnsatoey Rblibf. 455

TITLE 11.

COMPENSATORY RELIEF.

Chapter I. Damages in General.
IT. Mea.sure of Damages.

CHAPTER I.

DAMAGES IN GENERAL -

Article L General Principles. '
II. Interest as Damages.
III. Exemplary Damages.

Article I. — General Principles.

§ 1940. Damages for any injury.] Every person who suffers detri-
ment from the unlawful act or omission of another, may recover from
the person in fault a compensation therefor in money, which is called
damages.

§ 1941. Definition.] Detriment is a loss or harm suffered in person
or property.

§ 1942. Future detriment.] Damages may he awarded in a judicial
proceeding for detriment resulting after the commencement thereof,
or certain to result in the future. j

Article II. — Interest as Damages.

§ 1948. Interest upon damages.] Every person who is entitled to
recover damages certain, or capable of being made certain by calcula-
tion, and the right to recover which is vested in him upon a particular
day, is entitled also to recover interest thereon from that day, except
during such time as the debtor is prevented by law, or by the act of the
creditor, from paying the debt.

§ 1944. Jury may allow.] In an action for the breach of an obli-
gation not arising from contract, and in every case of oppression, fraud,
or malice, interest may be given, in the discretion of the jury.

§ 1945. Waiver of interest.] Accepting payment of the whole
principal, as such, waives all claim to interest.

Article III. — Exemplary Damages.

§ 1946. When jury may give.] In any action for the breach of an
obligation not arising from contract, where the defendant has been

456 Compensatory Relief. Civil Code.

guilty of oppression, fraud, or malice, actual or presumed, the jury, in
addition to the actual damages, may give damages for the sake of
example, and by way of puni^ihing the defendant.

CHAPTER 11.

MEASURE OF DAMAGES.

Article I. Damages for Breach of Contract.

11. Damages for Wrongs.

III. Penal Damages.

IV. General Provisions.

Artiolx I. — Damages for Breach op Contract.

§ 1947. Proximate results.]* For the breach of an obligation
arising from contract, the measure of damaffes, except where other-
wise expressly provided by this code, is the amount which will
compensate the party aggrieved for all the detriment proxiinately
caused thereby, or which, in the ordinary course of things, would' be
likely to result therefrom.

§ 1948. Must be cektain.] No damages can be recovered for a
breach of contract, which are not clearly ascertainable in both their
nature and origin.

§ 1949. Principal and interest.] The detriment caused by the
breach of an obligation to pay- money only is deemed to be the amount
due by the terms of the (^ligation, with interest thereon.

§ 1950. Foreign bills.] For the dishonor of foyeign bills of
exchange, the damages are prescribed by sections 1925, 1926, and 1927
of this code.

§ 1951. Covenants in grants.] The detriment caused by the breach
of a covenant of seizin, of right to convey, of warranty, or of quiet
enjoyment, in a grant of an estate in real property, is deemed to be:

1. The price paid to the grantor, or if the breach is partial only, such
proportion of the price as the value of the property affected by the
breach, bore at the time of the grant to the value of the whole
property.

2. Interest thereon for the time during which the grantee derived no
benefit from the property, not exceeding six years; and,

3. Any expenses |)roperly incurred by the covenantee in defending
his possession.

§ 1952. Incumbrances.] The detriment caused by the breach of a
covenant against incumbrances in a grant of an estate in real prop-
erty, is deemed to be the amount which has been actually expended
by the covenantee in extinguishing either the principal or interest
thereof; not exceeding, in the former case, a proportion of the price
paid to the grantor, equivalent to the relative value at the time of

Civil Code. Cokpensatort REtiET. 457

the grant, of the property affected by the breach, as compared with
the whole; or in the latter case, interest on a like amount.

§ 1953. Agreement to convey.] The detriment caused by the breach
of an aCTeement to convey an estate in real property, fs deemed
to be tne price paid, and the expenses properly incurred in
examining the title and preparing the necessary papers, with interest
thereon ; but adding thereto, in case of bad faith, the difference between
the price agreed to be paid, and the value of the estate agreed to be
conveyed, at the time of the breach, and the expenses properly incurred
in preparing to enter upon the land.

§ 1954. Same of buy.J The detriment caused by the breach of an
agreement to purchase an estate in real property, is deemed to be the
excess, if any, of the amount which would have been due to the seller
under the contract, over the value of the property to him.

§ 1955. Delivery op personality.1 The detriment caused by the
breach of a seller's agreement to deliver personal property, the price
df which has not been fully paid in advance, is deemed to be the excess,
if any, of the value of the property to the buyer, over the amount
which would have been due to the seller under the contract, if it had
been fulfilled.

§ 1956. Same.1 The detriment caused by the breach of a seller's
agreement to deliver personal property, the price of which has been
fully paid to him in aavance, is deemed to be the same as in case of a
wrongful conversion.

§ 1V)57. Agreement to accept and pay.] The detriment caused by
the breach of a buyer's agreement to accept and pay for personal
property, . the title to whicn is vested in him, is deemed to be the
conti^Ct price.

§ 1958. To BUY PERSONALTY.] The detriment caused by the breach
of a buyer's agreement to accept and pay for personal property, the
title to which is not vested in hinrtEndeemed to be:

1. If the property has been resold, pursuant to section 1804, the
excess, if any, of the amount due from the buyer, under the contract,
over the net proceeds of the resale; or,

2. If the property has not been resold in the manner prescribed by
section 1804, the excess, if any, of the amount due from the buyer,
under the contract, over the value to the seller, together with the
excess, if any, of the expenses i)roperly incurred in carrying the prop-
erty to market, over those which would have been incurred for the
carriage thereof, if the buyer had accepted it.

§ 1959. Breach op warranty to title.] The detriment caused by
the breach of a warranty of the title of personal property sold, is
deemed to be the value thereof to the buyer, when he is deprived of its
possession, together with any costs which he has become liable
to pay, in an action brought for the property by the true owner.

g 1960. As TO QUALITY,] The detriment caused by the breach of a
warranty of the quality of personal property, is deemed to be the excess,
if any, of the value which the property would have had at the time
to which the warranty referred, if it had been complied with, over its
actual value at that time.

§ 1961. Fitness.] The detriment caused by the breach of a
warranty of the fitness of an article of personal property for a partic-

458 CoiCFitr^SATOBY Relief. Civil Code.

ular purpose, is deemed to be that which is defined by the last seetion,
togetner with a fair compensation for the loss incurred by an effort in
good faith to use it for such purpose.

§ 1962. ^ By CAERiBR to accept.] The detriment caused by the
breach of a carrier's obligation to accept freight, messages, or passen-

fers, is deemed to be the difference between the amount which he
ad a right to charge for the carriage, and the amount it would be
necessary to pay for the same service when it ought to be performed.

§ 1963. To DELIVER.] The detriment caused by the breach of a
carrier's obligation, to deliver freight, where he has not converted it to
his own use, is deemed to be the value thereof at the place and on the
day at which it should have been delivered, deducting the freightage
to which he would have been entitled, if he had completed tne
delivery.

§ 1964. Delay by carrier.] The detriment caused by a carrieVs
delay in the delivery of freight, is deemed to be the depreciation in the
intrinsic value of the freight during the delay, and also the deprecia-
tion, if any, in the market value thereof, otherwise than by reason of
a depreciation in its intrinsic value, at the place where it ought to
have been delivered, and between the day at which it ought to have
been delivered and the day of its actual delivery.

§ 1965. By AGENT OF authority.] The detriment caused by the
breach of a warranty of an agent's authority, is deemed to be the
amount whi6h could "have been recovered and collected from his priii-
cipal if the warranty had been complied witJi, and the reasonable
expenses of legal proceedings taken, in good faith, to enforce the act
of the agent against his principal.

§ 1966. Of marriage.] The damages for the breach of a promise of
marriage rest in the sound discretion of the jury.

CHAPTER 11.

DAMAGES FOR WRONGS.

§ 1967. Proximate detriment.] For the breach of an obligation
not arising from contract, the measure of damages, except where
otherwise expressly provided by this code, is the amount which will
compensate for all the detriment proximately caused thereby, whether
it could have been anticipated or not.

§ 1968. Wrongful occupation.] The detriment caused by the
wrongful occupation of real property, in cases not embraced in sec-
tions 1969, 1975, 1976, and 1977, is deemed to be the value of the use
of the property for the time of such occupation, not exceeding six
years next preceding the commencment of tne action or proceeding to
enforce the right to damages, and the costs, if any, of recovering the
possession.

§ 1969. Detainer by trustee.] For willfully holding over real
property by a person who entered upon the same, as guardian or
trustee for an infant, or by ri^ht of an estate terminable with any
life or lives, after the termination of the trust or peculiar estate, with-

CivU Cod»\ CoHPEKSATOBT Bxus?. 439

out the conseot of the party immediately entitled after such termina-
tion, the measure of damages is the value of the profits received
during such holding over.

§ 1970. Conversion of personalty.] The detriment caused by
the wrongful conversion of personal property is presumed to be:

1. The value of the property at tne time of the conversion, with
the interest from that time; and, '

2. A fair compensation for the time and money properly expended
in pursuit of the property.

§ 1971. Same — presumption.] The presumption declared by the
last section cannot be repelled, in favor of one whose possession was
wrongful from the beginning, by his subsequent application of the
property to the benefit of the owner, without his consent.

§ 1972. Damages to lienor.] One having a mere lien on personal

groperty, cannot recover greater damages for its conversion, from one
avmff a right thereto superior to his, after his lien is discharged,
than tne amount secured by the lien, and the compensation allowed
by section 1970, for loss of time and expenses.

§ 1973. For seduction.] The damages for seduction rest in the
sound discretion of the jury.

§ 1974. Exemplary damages.] For wrongful injuries to animals,
being subjects of property, committed willfully, or by gross negligence,
in disregard of humanity, exemplary damages may be given.

Article III. — Penal Damages.

§ 1975. Double rent.] For the failure of a tenant to give up the
premises held by him, when he has given notice of his intention to do
so, the measure of damages is double the rent which he ought other-
wise to pay.

§ 1976. For willful holding over.] For willfully holding over
real property, by a tenant after the end of his term, and after notice
to quit has been duly given, and demand of possession made, the
measure of damages is double the yearly value of the property, for
the time of withholding, in addition to compensation for the detriment
occasioned thereby.

g 1977. For forcible exclusion.] For forcibly ejecting or exclud-
ing a person from the possession of real property, the measure of
damages is three times such a sum as would compensate for the det-
riment caused to him by the act complained of.

§ 1978. Injuries to timber.] For wrongful injuries to timber, trees,
or underwood upon the land of another, or removal thereof, the
measure of damages is three times such a sum as would compensate
for the actual detriment, except where the trespass was casual and
involuntary, or committed under the belief that the land belonged to
the trespasser, or where the wood was taken by the authority of high-
way officers for the purposes of a highway; in which cases the
damages are a sum equal to the actual detriment.

Article IV. — General Provisions.

I 1979. Rule of value to seller.] In estimating damages, the
value of property to a seller thereof, is deemed to be the price which he

460 OoMPENSATORT BzaLiEF. Civtl Code.

could have obtained therefor in the market neareiSt to the place at
which it should have been accepted by the buyer, and at such time
after the breach of the contract as would have sufficed, with reason-
able diligence, for the seller to eflfect a resale.

§ 1980. Value of equivalent.] In estimating damages, except as
provided by sections 1981 and 1982, the value of property, to a
buyer or owner thereof, deprived of its possession, is deemed to be the
price at which he might have bought an equivalent thing, in the
market nearest to the place where the property ought to have 'been
put into his possession, and at such time after the breach of dutv
upon which his right to damages is founded as would suffice, with
reasonable diligence, for him to make such a purchase.

§ 1981. Peculiar value.] Where certain property has a peculiar
value to a person recovering damages for deprivation thereof, or
injury thereto, that may be deemed to be its value against one who
had notice thereof before incurring a liability to damages in respect
thereof, or against a willful wrong-3oer. •

§ 1982. Title papers.] For the purpose of estimating damages
the value of an instrument in writing is presumed to be equal to that
of the property to which it entitles its owner.

§ 1983. Explanation.] The damages prescribed by this chapter are
exclusive of exemplary damages and interest, except where those are
expressly mentioned.

§ 1984. Limitation.] Notwithstanding the provisions of this chap-
ter, no person can recover a greater amount in damages for the breach
of an obligation, than he could have gained by the full performance
thereof on both sides, except in the cases specified in the articles on
exemplary damages and penal damages, and in sections 1966, 1973,
and 1974.

§ 1985. DAiiiAGES must be reasonable.] Damajges must, in all cases,
be reasonable, and where an .obligation of any kind appears to create
a right to unconscionable and grossly oppressive damages, contrary
to substantial justice, no more than reasonable damages can be
recovered.

§ 1986. Nominal damages.] When a breach of duty has caused no
appreciable detriment to the party aflPected, he may yet recover nomi-
nal damages.

Ciml Ccide. Spbcipio Bblibv. 461

TITLE III.

SPECIFIC AND PREVENTIVE RELIEF.

Cbaptbe I. General Principles.
11. Specific Relief.
III. Preventive Relief.

CHAPTER I.

GENERAL PRINCIPLES.

§ 1987. Certain relief— when.] Specific or preventive relief may
be given in the cases specified in this title, and in no others.
§ 1988. Methods of giving specific relief.] Specific relief is given:

1. By taking po^ession of a thing, and delivenng it to a claimant.

2. By compelling a party himself to do that which ought to be
done; or,

3. By declaring and determining the rights of parties, otherwise
than by an award of damages.

§ 1989. Same — pbeventive.1 Preventive relief is given by prohibit-
ing a party from doing that wnich ou^ht not to be done.

§ 19w. Limitation!] Neither specific nor preventive relief can be
granted to enforce a penal law, except in a case of nuisance/ nor to
eirforce a penalty or forfeiture in any case.

CHAPTER II.

SPECIAL RELIEF.

Article I. Possession of Real Property.

11. Possession of Personal Property.

III. Specific Performance of Obligations.

IV. Revision of Oonti-acts.
V. Rescission of Contracts.

VI. Cancellation of Instruments.

Article I. — ^Possession of Real Property.

§ 1991. How ENFORCED.] A persou entitled to specific real property,
by reason either of a perfected title, or of a claim to title which ought
to be perfected, may recover the same, in the manner prescribed by the

462 Spboifig Relief. Civii Code.

code of civil procedure, either by a judgment for its possession, to be
executed by the sheriff, or by a judgment requiring the other party to
perfect the title, and to deliver possession of the property.

Article II. — Possession of Personal Property.

§ 1992. Judgment of recovery.] A person entitled to the immediate
possession of specific personal property may recover the same in the
manner provided by the code of civil procedure.

§ 1993. Specific delivery.] Any person having the possession or
control of a particular article of personal property, of which he is not
the owner, may be compelled specifically to deliver it to the person
entitled to its immediate possession.

Article III. — Specific Performance of Obligations.

§1994. May BE compelled.] Except as otherwise provided in this
article, the specific performance of an obligation may be compelled.

§ 1995. Remedy mutual.] Neither party to an obligation can be
compelled specifically to perform it, unless the other party thereto has
performed, or is compellable specifically to perform, everything to
which the former is entitled under the same obligation, either com-
pletely or nearly so, together with full compensation for any want of
entire performance.

§ 1996. DIFFERENT PRESUMPTIONS.] It is to bc prcsumcd that the
breach of an agreement to transfer real property cannot be adequately
relieved by pecuniary compensation, ana that the breach of an agree-
ment to transfer personal property can be thus relieved.
. § 1997, When only qnb signed.] A party, who has signed a writ-
ten contract may be compelled specifically to perform it, tjiough the
other party has not signed it, if the latter has performed, or offers to
perform it on his part, and the case is otherwise proper for enforcing
specific performance. .

§ 1998. Performance instead of damages.] A contract otherwise
proper to be specifically enforced, may be thus enforced, though a
penalty is imposed, or the damages are liquidated for its breach, and
the party in default is willing to pay the aame.

§ 1999. Not enforce ableJ The following obligations cannot be
specifically enforced:
' 1. An obligation to render personal service.

2. An obligation to employ another in personal service.

8. An agreement to submit a controversy to arbitration.

4. An agreement to perform an act which the party has not power
lawfully to perform when required to do so.

5. An agreement to procure the act or consent of the wife of the
contracting party, or of any other third person; or,

6. An agreement, the terms of which are not sufficiently certain to
make the precise act which is to be done clearly ascertainable.

§ 2000. Not against party.] Specific performance cannot be
enforced against a party to a contract, in any of the following cases:

1. If he nas not received an adeauate consideration fbr the contract.

2. If it is not, ks to him, just and reasonable.

Chil Code. Specific Relief. 463

3. If his assent was obtained by the misrepresentation, concealment,
circumvention, or unfair practice of any party to whom performance
would become due under the contract, or by any promise of such party
which has not been substantially fulfilled; or,

4. If his assent was given under the influence of mistake, misappre-
hensioiL or surprise,, except that where the contract provides for coip-
pensation in case of mistake, a mistake within the scope of such
provision may be compensated for, and the contract specifically
enforced in other respects, if proper to be so enforced.

§ 2001. Not in favor of party.] Specific performance cannot be
enforced in favor of a party who has not fully and fairly performed ail
the conditions precedent on his part to the obligation of the other
party, except where his failure to perform is only partial, and either
entirely immaterial or capable of being fully compensated; in which
case specific performance may be conipelled, upon full compensation
being made for the default.

§ 2002. Not if title fails.] An agreement for the sale of property
cannot be specifically enforced in favor of a seller who cannot give to
the buyer a title free from reasonable doubt.

§ 2003. Against subsequent holder.] Whenever an obligation in
respect to real property would be specifically enforced a^inst a partic-
ular person, it may be in like manner enforced against any other
person claiming under him by a title created subsequently to the obli-
gation, except a purchaser or incumbrancer in good faith and for value,
and except, also, that any such person may exonerate himself by con-
veying an his estate to the person entitled to enforce the obligation.

Article IV. — Revision of Contracts.

§ 2004. For mistake or fbaud.] When through fraud, or a mutual
mistake of the parties, or a mistake of one party, which the other at
the time knew or suspected, a written contract does not truly express
the intention of the parties, it may be revised on the application of a
party aggrieved, so as to express that intention, so far as it can be done
without prejudice to rights acquired by third persons, in good faith,
and for value.

§ 2005. Intention presumed.] For the purpose of revising a con-
tract, it must be presumed that all the parties thereto intended to
make an equitable and conscientous agreement.

§ 2006. buBSTANCE NOT LANOUAOE.] In revising a written instru-
ment, the court may inquire what the instrument was intended to
mean, and what were intended to be its legal consequences, and is not
confined to the inquiry what the language of the instrument was
intended to be.

§ 2007. Order op actions.] A contract may be first revised and
then specifically enforced.

Article V. — Rescission of Contracts.

§2008. When rescission adjudged.] The rescission of a written
contract may be adjudged on the application of a party aggrieved:
1. In any of the cases mentionea m section 965; or,

464 Spsoipio Rklim', Civil Code.

2. Where the contract is unlawful, for causes not apparent upon its
face, and the parties were not equally in fault; or,

3. When the public interest will be prejudiced by permitting it to
stand.

§ 2009. Not for mebb mistake.] Rescission cannot be adjudged
for mere mistake, unless th6 party against whom it is adjudged can
be* restored to substantially the same position as if the contiAct had
not been made.

§ 2010. Compensation.] On adjudging the rescission of a contract
the court may require the party to whom such relief is granted to
make any compensation to the other which justice may require.

Article VI.— Cancellation of Instruments.

• § 2011. When to be adjudged.] A written instrument, in respect
to which there is a reasonable apprehension that if left outstanding it
may cause serious injury to a person against whom it is void or void-
able, mav, upon his application, be so adjudged and ordered to be
delivered up or cancelled.

§ 2012. Construction.] An instrument, the validity of which is
apparent upon its face, or upon the face of another instrument which
is necessary to the use of the former in evidence, is not to be deemed
capable of causing injury within the provisions of the last section.

I 2013. Part cancellation.] When an instrument is evidence of
different rights or obligations, it may be cancelled in part, and allowed
to stand for the residue.

CHAPTER IIL

PKEVSNTIYE RBLIffiP.

§ 2014. By injunction.] Preventive relief is granted by injunction,
provisional or final.

§ 2015. How REGULATED.] Provisioual injunctions are regulated by
the code of civil procedure.

§ 2016. When injunction allowed.] Except where otherwise
provided by this title, a final injunction may be granted to prevent the
breach of an obligation existing in favor of the applicant:

1. Where pecuniary compensation would not afford adequate
relief

2. Where it would be extremely diflBcult to ascertain the amount of
compensation which would afford adequate relief

3. Where the restraint is necessary to prevent a multiplicity of
j udicial proceedings ; or,

4. Where the obligation arises from a trust.

§^017. When not granted.] An injunction cannot be granted:

1. To stay a judicial proceeding pending at the commencement of
the action in which the injunction is demanded, unless such restraint
is necessary to prevent a multiplicity of such proceedings.

2. To stay proceedings in a court of the United States.

Civil Code. Debtor and Crbditob. 465

3. To stay proceedings in a state upon a judgment of a court of
that state.

4. To prevent the execution of a public statute, by officers of the
law, for the public benefit.

5. To prevent the breach of a contract, the performance of which
would not be specifically enforced. #

6. To prevent the exercise of a public or private office, in a lawful
manner, by the person in possession.

7. To prevent a legislative act by a municipal corporation.

PART II

Special Relations of Debtor and Creditor.

Title I. General Principles.

II. Fraudulent Instruments and Transfers.
III. Assignments for the Benefit of Creditors.

TITLE I.

GENERAL PRINCIPLES.

§ 2018. Debtor defined.] A debtor, within the meaning of this
title, is one who, by reason of an existing obligation, is or may become
liable to pay money to another, whether such liability is certain or
contingent.

§ 2019. Creditor.] A creditor, within the meaning of this title, is
one in whose favor an obligation exi«?ts, by reason of which he is, or
may become, entitled to the payment of money.

§ 2020. Fraud only invalidates.] In the absence of fraud, every
contract of a debtor is valid against all his creditors, existing or sub-
sequent, who have not acquired a lien on the property aflPected by such
contract.

§ 2021. Preferred creditors.] A debtor may pay one creditor in
preference to another, or may give to one creditor security for the
payment of his demand, in preference to another. ♦

§2022. Alternative right to funds.] Where a creditor is
entitled to resort to each of several funds for the satisfaction of his
claim, aifd another person has an interest in, or is entitled as a creditor
to resort to some but not all of them, the latter may require the

30

466 DBBTok AND Crebitob. Civil Code.

former to seek satisfaction from those funds to which the latter has
no such claim, so far as it can be done without impairing the right of
the former to complete satisfaction, and without doing injustice to
third persons.

TITLE II.

FRAUDULENT INSTRUMENTS AND TRANSFERS.

§ 2023. With intent to defraud.] Every transfer of property or
charge thereon made, every obligation incurred, and every judicial
proceeding taken, with intent to delay or defraud any creditor or
other person of his demands, is void against all creditors of the debtor
and their successors in interest, and against any persons upon whom
the estate of the debtor devolves in trust for the benefit of others than
the debtor.

§ 2024. Conclusive presumption.] Every transfer of personal
property other than a thing in action, or a ship or cargo at sea, or in a
foreign port, and every lien thereon, other than a mortgage, when
allowed by law, and a contract of bottomiy or respondentia, is con-
clusively presumed, if made by a person having at the time the
possession or control of the property, and not accompanied by an
immediate delivery, and followed by an actual and continued change
of possession of the things transferred, to be fraudulent and therefore
void, against those who are his creditors while he remains in posses-
sion, and the successors in interest of such creditors, and against any
person on whom his estate devolves in trust for the benefit of others
than himself, and against purchasers or incumbrancers in good faith
subsequent to the transfer.

§ 20a5. Fraud, how avoided.] A creditor can avoid the act or
obligation of his debtor, for fraud, only where the fraud obstructs the
inforcement, by legal process, of his right to take the property
affected by the transfer or obligation.

§ 2026. Question of fact, not law.] In all cases arising under
section 670, or under the provisions of this title, except as otherwise
provided in section 2024, the question of fraudulent intent is one
of fact and not of law; nor can any transfer or charge be adjudged
fraudulent solely on the ground that it was not made for a valustole
consideration.

Civil Code. D»BTOE a»i> Crbdii?o». 467

■ • • •

TITLE III.

ASSIGNMENTS FOB THE BENEFIT OF CREDITORS.

§ 2027. When alxx)wable.] An insolveat debtor may, in good ^
faith, execute an assignment of property to one pr more assignees, in
trust towards the satisfaction of his creditors, in conformity to the pro-
visions of this title; subject, however, to the provisions of this code
relative to trusts and to fraudulent transfers, and to the restrictions
imposed by law upon assi^iments by special partnerships, by cor-
porations, or by other specihc classes of persons; Provided^ moreover.
That such assignment snail not.be valid if it be upon, or contain any
trust or condition by which any creditor is to receive a preference or
priority over any other creditor;: but in such case the property of
the insolvent shall become a trust fund to be administerea in eauity,
in the district court, and shall inure to the benefit of all the creditors
in proportion to their respective claims or demands.

§2028. Insolvency DBWNBD.] A debtor is insolvent, within the
meaning of this title, when he is unable to pay his debts from his own
means, as they become due.

§ 2029. What may pbovidb.] An assignment for the benefit of
creditors may provide for any subsisting liability of the asaignor ^hich
he might lawfully pay, whether absolute or contingent

§ 2030. Void in certain oases.] An assignment for the benefit of
creditors is void against any creditor of the assignor not assenting
thereto, in the following cases:

1. If it tend to coerce any creditor to release or compromise his
demand.

2. If it provide for the payment of any claim known to the assignor
to be false or fraudulent; or for the payment of more upon any claim
than is known to be justly due from the assignor.

3. If it reserve any interest in the assigned property, or in any part
thereof, to the assignor, or for his benefit, before all his existing debts
are paid, other than property exempt by law from execution.

4. If it confer upon the assignee any power which, if exercised,
nright prevent or delay the immediate conversion of the assigned
property to the purposes of the trust.

6. If it exempt him from liability for neglect of duty or misconduct.
• § 2031. How EXECUTED.] Au assignment for the benefit of credit-
ors must be in writing, subscribed by the ajssignor, or by his agent,
thereto authorized by writing. It must be acknowledged, or proved
and certified, in the mode prescribed by the chanter on recording
iaransfers of real property, and recorded as requirea by sections 2086
and 2087.

§ 2032. Void uklb89 sq mapb.] Unless the. provisions of the laat
section are complied with, an assignment for the. benefit of creditors
is void against every creditor of the assignor not assenting thereto.

§ 2033. Rights of assionbb.] An assignee for the benefit of
creditors is not to be regarded as a i>urchaser for value, and has no
greater riehts than his assignor had, in respect to things in action
transfeiroa by ^ the. assig^menti ...

468 Dbbtor and 0«BDiTOft. (Hvil Code.

§2034. Invbntort ebquirbd.] Within twenty days after an
assignment is made for the benefit of creditors, the assignor must
make and file in the manner prescribed by section 1938 [2036], a ftill
and true inventory, showing:

1. All the creditors of the assignor.
• 2. The place of residence of each creditor if known to the assignor,
or if not known, that fact must be stated.

3. • The sum owing ta each creditor, and the nature of each debt, or
liability, whether arisinjf on written security, account, or otherwise.

4. The true consideration of the liability in each case, and the plac«
where it arose.

5. -Every existing judgment, mortgage, or other security for the pay-
ment of any debt or liability of the assignor.

6. All property of the assignor at the date of the assignment which
is exempt by. law from execution ; and,

7. All the assignor's propertv at the date of ttie assignment, both
real and personal, of every Kind not so exempt, and the incumbrances
existing thereon, and all vouchers and securities relating thereto, and
the value of such property according to the best knowledge of the
assignor.

§ 2035. Verification of same.] An affidavit must be made by every
person executing an assignment for the benefit of creditors, to be
annexed to and med with the inventory mentioned" in the last section,
to the effect that the same is in all respects just and true, according to
the best of such assignor's knowledge and belief.

§ 2036. AscoRD AND FILING.] Au assignment for the benefit of
creditors must be recorded, and the inventory required by section 2034
filed with the register of deeds of the county in which the assignor
resided .at the date of the assignment; or if he did not then reside in
this territory, with the like omcer of the county in which his principal
place of business was then situated; or if he had not then a residence
or place of business in this territory, with the like officer of the countv
in which the principal part of the assigned property was then situated.

§2037. Same.] If an assignment for the benefit of creditors is
executed by more than one assignor, it must be recorded, and a copy
of the inventory required by section 2084 must be filed with tne
re^ster of deeds of every county in which any of the assignors resided
at its date, or in which any of them, not then residing in tliis territory,
had then a plaice of business.

§ 2038. Record within twenty days.] An assignment for the benefit
of creditors is void against creditors of the assignor, and against pur-
chasers and incumbrancers in good faith and for value if the assign^
mejptt is not recorded, and the inventory reauired by section 2034 filed,
pursuant to section 8036, within twenty aay» after the date of the
assigpment.

§ 2039. Real propeety.) Where an assignment for the benefit of
cre<Jitors embraces real property, it is subject to the provisions of
article tV of the chapter on recording ttonsters, as well as to those of
this title.

§ 2040. Bond* OF assi&nbeJ Within thirty days after the date of
an assignment for the benefit of creditors, the assignee must enter
into a. ppnd to this territory in double the amount of the value of the

Civil G6de. Ntn&iiroB. ^69

property assigned, with sufficient sureties, to be approved by the jud^e
of the district court of the county in which the original inventory is
filed, and conditioned for the faithful discharge of the trust, and the
due accounting for all moneys received by the assignee, which bond
must be filed in the same office with the ori^nal inventory.

§ 2041. When authority bboins.] Until the inventory and affi-
davit required by sections 2034 and 2035 have been made, and the
assignment has been duly recorded, and the inventory filed, and the
assignee has given a bond as required by the last section, an assignee
for the benefit of creditors has no authority to dispose of the estate or
convert it to the purposes of the trust.

§ 2042. When assignee to account.] After six months from the
date of an assignment for the benefit of creditors, the assienee may
be required, on complaint of any creditor, to account before the district
court of the county where the accompanying inventory was filed, in
the manner prescribed by the code of civil procedure.

§ 2043. Property exempt.] 'Property exempt from execution, and
insurances upon the life of the assignor, do not pass to the assignee by
a general assignment for the benefit of creditors, unless the instru-
ment specially mentions them, and declares an intention that they
should pass thereby. " .

§ 2044. Compensation. I In the absenoe. of any provision in the
assignment to the contrary, an assignee for the benefit of creditors is
entitled to the same commissions as are allowed by law to executors
and guardians, but the assignment cannot grant more, and may restrict
the commissions to a less amount, or deny them altogether.

§ 2045. Goon faith pbotbots assignee.] An assignee for the benefit
of creditoi^ is not to be held liable for his acts done in good faith in
the execution of the trust, merely for the reason that the assignment
is afterward adjudged void.

' g 2046. Cannot be oanobled^] An assignment for the benefit of
creditors, which has been executed and recorded so as to transfer the
property to the assignee, cannot afterwards be canceled or modified
by the parties thereto, without the consent of every creditor affected
thereby. .

fiO N»1sa»©b: Civil Codie.

Pi^RT III

JSTuisaiicie.

Title I. General Principles.
U. Public Nuisances.
Ill, Private Nuisances.'

^»r— *** ' '

TITLE I.

6ENEKAL PRINCIPLBS.

|2ft47. NtriSANOBS defined.} A nuisance consists in unlawfully
doing an act^ or omitting to perform a duty, which act or omission
either:

1. Annoys, injures, or endangers the comfort, repose, health, or
safety of others; or,

2. Oflfends decency; 6r,

3. Unlawfully interferes with, obstructs, or tends to obstruct, or ren-
ders dangerous for passage, any lake or navigable river, bay, stream,
canal, or basin, or any public park, square, street, or highway; or,

4. In any way renders other {>ersOns insecure in life, or in the use of
property.

§ 2048. Public nuisance.] A public nuisance is one which affects
at the same time an entire community or neighborhood, or any con-
siderable number of persons, although the extent of the annoyance or
damage inflicted upon individuals may be unequal.

§ 2049. Private.] Every nuisance not included in the definition of
the last section, is private.

§ 2050. Statute authority.] Nothing which is done or maintained
under the express authority of a statute can be deemed a nuisance.

§ 2051. Successive owners.] Every successive owner of property
who neglects to abate a continuing nuisance upon, or in the use of,
such property, created by a former owner, is liable therefor in the same
manner as the one who first created it.

§ 2052. Damages.] The abatement of a nuisance does not prejudice
the right of any person to recover damages for its past existence.

Civil Code. Maxims of Jubisprudbnob. 471

TITLE II.

PUBLIC NUISANCES

§ 2053. Time does not legalize.] No lapse of time can legalize a
public nuisance, amounting to an actual obstruction of public right.
§ 2054. Remedies.] The remedies against a public nuisance are:

1. Indictment.

2. A civil action ; or,

3. Abatement.

§ 2055. By indictment.] The remedy by indictment is regulated
by the penal code and the code of criminal procedure..

§ 2056. By action.] A private person may maintain an action for
a public nuisance if it is specially injurious to himself, but not
otherwise.

§ 2057. How ABATED.] A public nuisance may be abated by any
public body or officer authorized thereto by law.

§ 2058. Same.] Any person may abat^ a public nuisance which is
specially injurious to him, by removing, or, if Accessary, destroying
the thing which constitutes the same, witnout committing a breach of
the peace, or doing unnecessary injury.

TITLE III.

private nuisances.

§ 2059. Remedies against.] The remedies against a private nui-
sance are:

1. A civil action; or,

2. Abatement.

§ 2060. How PERSON may abate.] a pei*son injured by a private
nuisance may abate it by removing, or, if necessary, destroying the thing
which constitutes the nuisance, without committing a breach of the
peace, or doing unnecessary injury.

§ 2061. When notice of required.] Where a private nuisance
results from a mere omission of the wrong-doer, and cannot be abated
without entering upon his land, reasonable notice must be given to
him before entering to abate it.

472 Definitions. CHml Code.

P^RT IV.

Maxims of Jurisprudence.

§ 2062. How TO BE USED AND APPLIED.] The maxims of jurispru-
dence hereinafter set forth, are intended not to qualify any of the fore-
going provisions of this code, but to aid in their just application. .

§ 2063. When the reason of a rule ceases, so should the rule itself.

2064. Where the reason is the same, the rule should be the same.

2065. One must not change his purpose to the injury of another.
§ 2066. Any one may waive the advantage of a law intended solely

for his benefit. But a law established for a public reason cannot be
contravened by a private agreement.

§ 2067. One must so use his own rights as not to infringe upon the
rights of another. .

' 2068. He who consents to an act is not wronged by it.

2069. Acquiescence in error takes away the right of objecting to it.

2070. No one can take advantage of his own wrong.
§ 2071. He who has fraudulently dispossessed himself of a thing,

may be treated as if he still had possession.

8 2072. He who can and does not forbid that which is done on his
benalf, is deemed to have bidden it.

2073. No one should suflFer by the act of another.

2074. He who takes the benefit must bear the burden.
§ 2075. One who grants a thing is presumed to grant also whatever

IB essential to its use.

2076. For every wrong there is a remedy.

2077. Between those who are equally in the right, or equally in
the wrong, the law does not interpose.

§ 2078. Between rights otherwise equal, the earliest is preferred.

2079. No man is responsible for that which no man can control.

2080. The law helps the vigilant before those who sleep on their
rights.

2081. The law respects form less than substance.

2082. That which ought to have been done is to be regarded a-s
done, in favor of him to whom, and against him from whom, perform-
ance is due.

8 2083. That which does not appear to exist is to be regarded as if it
dia not exist.

2084. The law never requires impossibilities.

2085. The law neither does nor requires idle acts.

2086. The law disregards trifles.
§ 2087. Particular expressions qualify those which are general.
§ 2088. Contemporaneous exposition is in general the best
§ 2089. The greater contains the less.
§ 2090. Superfluity does not vitiate.
§ 2091. That is certain which can be made certain.
§ 2092. Time does not confirm a void act.

Civil Code. Definitions. 473

§ 2093. The incident follows the principal, not the principal the
incident.

§ 2094. An interpretation which gives eflfect is preferred to one
which makes void.

§ 2095. Interpretation must be reasonable.

§ 2096. Where one of two innocent persons must suffer by the act
of a third, he by whose negligence it happened must be the sufferer.

Definition and General Provisions.

§ 2097. Meaning of words.] Words used in any statute are to be
understood in their ordinary sense, except when a contrary intention
plainly appears, and except also that the words hereinafter explained
are to be understood as thus explained.

§ 8098. Statutory meaning. J Whenever the meaning of a word or
phrase is defined in any statute, such definition is applicable to the
same word or phrase wherever it occurs, except where a contrary .
intention plainly, appears.

§ 2099. Degrees op oare.] There are three degrees of care and of
diligence mentioned in this code, namely, slight, ordinary, and great.
The latter include the former.

§ 2100. Degrees defined.] Slight care or diligence is such as
persons of ordinary prudence usuafly exercise about their own aflfairs
of slight importance; ordinary care or diligence is such as they usually
exercise about their own affairs of ordinary importance; and great
care or diligence is such as they usually exercise about their own
affairs of great importance.

§ 2101 . Degrees of negligence.] There are three degrees of negli-

fence mentioned in this code, namely, slight ordinary, and gross.
*he latter include the former.

§ 2102. Degrees defined.] Slight negligence consists in the want
of great care and diligence; ordinary ne^igence, in the want of ordi-
nary care and diligence; and gross negligence, in the want of slight
care and diligence.

§ 2103. Children.] The term children includes children by birth
and by adoption.

§ 2104. Debtor and creditor.] Except as defined and used m part
two of this division, and in sections 2018 and 2019, everyone who owes
to another the performance of an obligation is called a debtor, and the
one to whom he owes it is called a creditor.

§ 2105. Good faith:] Good faith consists in an honest intention to
abstain from taking any unconscientious advantage of another, even

474 DsFiNiTiONS. Civil Code.

through the forms or technicalities of law, together with an absenc^
of all information or belief of facts which would render the transaction
unconscientious.

§ 2106. Notice clAvSsed.] Notice is either actual or constructive. ^

§ 2107. Actual.] Actual notice consists in express information of
a fact.

§ 2108. Constructive.] Constructive notice is notice imputed by
the law to a person not having actual notice.

§ 2109. Presumption of.] Every person who has actual jiotice of
circumstances sufficient to put a prudent man upon inquiry as to a

Particular fact, and who omits to make such inquiry with reasonable
iligence, is deemed to have constructive notice of the fact itself.

§ 2110. False notice.] A notice which is false when given, is not
made valid by the subsequent happening of the event.

§2111. Paper.] The word ^'paper*' means any flexible material
upon which it is usual to write.

§ 2112. Person includes corporation.] The word "person," except
when used by way of contrast, includes not only human beings, but
bodies politic or corporate.

§ 2113. Several.] The word "several," in relation to number,
means two or more.

§ 2114. Third persons.] The words "third persons" include all who
are not parties to the obligation or transaction concerning which the
phrase is used.

§ 2115. Holidays.] Holidays are: every Sunday, the first day of
January, the twenty-second day of Frebruary, the lourth day of July,
the twenty-fifth day of December, every day on which an election is
held throughout the territory, and every day appointed by the president
of the United States, or by the governor of this territory, for a public
fast, thanksgiving, or holiday. .

§ 2116. Additional day.] If the first of January, the twenty-second
of Frebruary, the fourth of July, or the twenty-fifth of December,
falls upon a Sunday, the Itfonday following is a holiday.

§ 2117. Business days.] All other days than those mentioned in
the last two sections, are to be deemed business days, for all pur-
poses.

§2118. Next business day.] Whenever any act of a secular
nature, other than a work of necessity, or mercy, is appointed by law
or contract to be performed upon a particular day, which day falls
upon a holiday, such act may be performed upon the next business
day. with the same effect as if it had been performed upon the day
appointed.

§ 2119. Usa(ie.] Usage, is a reasonable and lawful public custom
concerning transactions oi the same nature as those which are to be
affected thereby, existing at the place where the obligation is to be
performed, and either known to the parties, or so well established,
general, and uniform, that they must be presumed to have acted with
reference thereto.

§ 2120. Customary. The words "usual" and "customary" mean
"according to usage."

§ 2121. Value.] A valuable consideration, is a thing of value
parted with, or a new obligation assumed, at the time of obtaining a

Civil Code. PsriNjTioirft. 475

thing, which is a substantial oompensation for tibat which is obtained
thereby. It it is also called simply * Value."

§ 2122. VuBDiCT.] The word " verdict," includes not only the
verdict of a jury, but also the finding upon the facts of a judge, or of
a referee appointed to determine the issues in a cause.

§2128. Time.] The word "year," means a calendar year, and
"month," a calendar month. " Fractions of a year are to be computed
by the number of months, thus: half a year is six months. Fractions
of a day are to be disregarded in computions which include more than
one day, and involve no questions of priority.

§ 2124. GrENDBB.] Words used in the masculine gender, include the
feminine and neuter.

§ 2125. NuMBBB.] Words used in the singular number include the
plural, and the plural the singular, except wlxere a contrary intention
plainly appears.

§ 2126. Other definitions.] Words used in the present tense
include future as well as the present; the word " oath " includes
" aflBrmation ;" and every mode of oral statement under oath or afiirm-
ation is embraced by the term " testify," and every written one in the
term "depose;" "signature" or " subscription " includes mark, when
the person cannot write, his name being written near it, and written
by a person who writes his own name as a witness. The following
words also have the signification attached to them in this section,
unless otherwise apparent from the context:

1. The word "property" includes property, real and personal.

2. The words "real property" are co-extensive with lands,* tenements,
and hereditaments.

3. The words "personal property" include money, goods, chattels,
things in action, and evidences of debt.

4. The word 'Svill" includes codicils.

§ 2127. Interest.] The words "compound interest" mean interest
added to the principal as the former becomes due, and thereafter
made to bear interest.

§ 2128. Writing and printing.] The words " writing " and
''written" include "printing" and " printed," except in the case of
signatures, and where the words are used by way of contrast to print-
ing. Writing may be made in any manner, except that when a per-
son entitled to require the execution of a writing demands that it be
made with ink, it must be so made.

§ 2129. Code excludes common law.] The rule of the cgmmon law,
that statutes in derogation thereof are to be strictly construed, has no
application to this code. This code establishes the law of this terri-
tory respecting the subjects to which it relates; and its provisions are
to be liberally construed with a view to effect its obiects, and to
promote justice. Whenever this code is cited, enumerated, referred to,
or amended, it may be designated simply as "The Civil Code." adding,
when necessaiy, the number of the section.

§ 21 SO. Impression op seal.] When the seal of a court, public
officer, or person, is required by law to be affixed to any process, com-
mission, paper, or instrument, the word " seal " includes an impression
of such seal upon the paper alone, as well as upon wax, or a waifer
affixed thereto.

476

Dbfinitioks.

Civil Code.

§ 2131-. Majority power.! Words giving a joint authority to three
or more public officers or other persons, are construed as giving such
authority to a majority of them, unless it is otherwise expressedin t&e
act giving, the authority. -

§ 2132. Repeal does not revive.] Whenever any act of the legis-
lative assembly is repealed, which repealed a former act, such former
act shall not thereby be revived, unless it shall be expressly so pro-
vided. [See section 12, R, S. of U. S.]

§ 2133. Effect of repeal.] The repeal of any statute by the
legislative assemby, shall not have the effect to release or extinguish
any penalty, forfeiture, or liability incurred under such statute, unle^
the repealinjj act shall so expressly provide, and such statute shall be
treated as still remaining in force for the purpose of sustaining any
proper action or prosecution for the enforcement of such penalty, for-
teiture or liability. [See section 13, R. S. of U. S.]

Approved, February 16, 1877.

CODE OF CIVIL PEOCEDUEE

AN» ACT to Establish a Code of Civil Procedure for DakoU Territory.
GENERAL DEt'INITIONS AND DIVISIONS.

§ 1. Title and parts of act,] Be it ettacted ^ the Legislative
Assembly of the Territory of Dakota-' This act shall be known as the
Code of Civil Procedure of the Territory of Dakota, and is divided into
three parts, as follows:

Part 1. Of Courts of Justice.

Part 2. Of Civil Actions.

Part 3. Of Special Proceedings of a Civil Nature.

§ 2. Not retroactive.] No part of it is retroactive unless expressly
so declared.

§ 3. Code ezoludss common law.] The rule of the common law,
that statutes in derogation thereof are to be strictly construed, has no
application tp this code. The cJode establishes the law of this terri-
tory, respecting the subjects to which it relates, and its provisions and
all proceedijQgs under it are to be liberally construed with a view to
effect its objects and to promote justice.

§'4. Prior RI0HT8.} No aQtion or proceeding commenced before
this code takes effect, and no right accrued, is affected by its provisions,
but the proceediiigs therein must conform to the requirements of this
code as far as applicable.

§ 5. . Limitations continue.] When a limitation or period of time
prescribed in any existing statute for acquiring a right, or barring a
remedy, or for any other purpose, has be^un to run before this code
goes into effect, and the same or any limitation is prescribed in this
code, the time which has already run shall be deemed part of the time
prescribed as such limitation by this code.

§ 6. Computation of time.] The time in which any act provided
by law is to be done is computed by excluding the first day, and includ-
ing the last, unless the last is a holiday, and tnen it is also excluded.

§ 7. Construction of language.] Words and phrases are con-
structed according to the context and the approved usage of the
language; but tecnnical words and phrases, and such others as have
acquired a peculiar and appropriate meaning in law, or are defined by
statute, are to be construed according to such peculiar and appropriate
meaningor definition.

§ 8. Words defined.] The following words have in this code the
signification attached to them in this section, unless otherwise appar-
el^ from the context:

478 DbfinItions. Code of Civil Procedure,

1. The word '*writ" signifies an order or precept in writing, issued \n
the name of the territory or of a court or judicial officer; and the
word "process" a writ or summons issued in the course of judicial
proceedings.

2. The word "state," when applied to the different parts of the
United States, includes the District of Columbia and the territories;
and the wojds "United States" may include the district and territories.

§ 9. Effect upon foembe laws.] No statute, law, or rule is con-
tinued in force because it is consistent with the provisions of this
code on the same subject; but in all cases provided for by this code, all
statutes, laws, and rules heretofore in force in this territory, whether
consistent or not with the provisions of this code, unless expressly
. continued in force by it, are repealed and abrogated. This repeal or
abrogation does not revive any former law heretofore repealed, nor
does it affect any right already existing or accrued, or any action or
proceeding already taken, except as in this code provided; nor does it
affect any private statute not expressly repealed.

1 10. Act how cited.] This act, whenever cited, enumerated,
referred to, or amended, may be designated simply as the code of civil
procedure, adding, when necessa]^, tne number of the section.

§ 11. Bemsdiss classified.] Remedies in the courts of justice are
divided into:

1: Actions.

2. Special proceedings.

g 12. Action defined.] An action is an ordinary proceeding in a
court of justice, by' which a party prosecutes another party for the
enforcement or protection of a right, the redress or prevention of a
wrong, or the punishment of a puolic offense.

§ 13. Special PROOEBpiKas.] Every other remedy is a special
proceeding.

^ 14. Actions classified.] Actions are of two kinds:
Civil.

2. Criminal.

§ 15. Criminal defined.] A criminal action is one prosecuted by
the territory, as a party, against a person charged with a public offense,
for the punishment thereof.

§16. Civil — process.] Every other is a civil action; and all pro-
cess in civil actions shall run in the name of the Territory of Dakota.

§ 17. Not meeged.] Where the violation of a right admits of both
a civil and criminal remedy, the right to prosecute the one is not
merged in the other.

Code of Citnl Procedure. Supbehb Coukt. 479

PA^RT I.

Courts of Justice and their Jurisdiction.

CHAPTER r.

OF THE COURTS IN GENERAL.

§ 18. C0UBT8.) . The following are the courts of jastice of this
territory:

1. The supreme court.

2. The district courts.

3. The probate cqurts; and,

4. The courts of justices of the peace.

§ 19. Jurisdiction continued.] These courts shall continue to
exercise the jurisdiction now vested in them respectively, except as
otherwise prescribed by law.

CHAPTER II.

OF THE SUPREME COURT.

§ 20. Jurisdiction classified.] The jurisdiction of the supr^ne
court is of two kinds:

1. Original; and,

2. Appellate.

§ 21. Original.] Its original jurisdiction extends to all vmts which
by law may issue from this court, and to all writs necessary to the
exercise of its appellate jurisdiction.

§ 22. Exclusive appellate jurisdiction.] It has exclusive juris- cIL; ^ ' TV
diction to review upon appeal every actual determination hereafter
made at any regular or special terms of the district courts of this
territory, in the mllowing cases, and no other:

1. In a judgment in an action commenced therein, or brought there
from another court, and upon the appeal from such judgment, to
review any intermediate order involving the merits, and necessarily
affecting the judgment.

2. In an order affecting a substantial right, made in such action^
when such order in effect determines the action, and prevents a judg-
ment from which an appeal might be taken, or discontinues the action,
or strikes out a pleading, or any part of a pleading, or arises upon any
interlocutory proceeding, or any question of practice in the action and
does not involve any question of discretion, or grants or refuses a new
trial, or sustains or overrules a demurrer, or grants, refuses, continues

480 SuPEBME Court. Code of Civil Procedure.

or modifies a provisional remedy; but no appeal to the supreme court
from an order granting a new trial shall be eflfectual for any purpose,
unless the notice of appeal contain an assent on the part of the appel-
lant that, if the order be afl&rmed, judgment absolute shall be rendered
against the appellant. Upon every appeal from an order granting a
new ti-ial, if tne supreme court shall determihe that no error was com-
mitted in granting the new trial, the}'^ shall render judgment absolute
upon the right of the appellant; and after the proceedings are remitted
to the court from which the appeal was taken, an assessment of dam-
ages or other proceedings to render the judgment effectual, may be
there had, in cases where such subsequent proceedings are requisite.

3. In a final order affecting a substantial right made in a 3i>ecial
proceeding, or upon a summary application in an action after judg-
ment, and upon such appeal to review any intermediate order involv-
ing the merits and necessarily affecting the order appealed from.

4. Whenever the decision of any motion heretofore made, or any
motion hereafter to be made, in the district court of this territory at a
special term thereof, involves the constitutionality of any law of this
territory, or has been or shall be placed, in the opinion or reason for
such decision of the justice making such decision, upon the unconsti-
tutionality of such law, then an appeal shall lie and may be made from
such decision or from the order entered, or to be entered upon such
decision, to the general term of said supreme court; ProvideOy fiowever^
That the time for appealing from such decision, or from such order,
shall not be extended hereby.

^ 23. SooPB OP JUDOMENT.] The supreme court may reverse, affirm,
or modify, the judgment or order appealed from in whole or in part,
and as to any or all of the parties; and its judgment shall be remitted
to the court below, to be enforced according to law; and may direct
the proper judgment or order to be entered, or direct a new trial or
further proceedings to be had.

§ 24. Terms — calendar.] The times and places for holding the
terms of the supreme court shall be and remain as is now or may nere-
after be provided by law. The court may provide what causes shall
have a preference on the calendar, and regulate the practice and pro-
ceedings therein by general rules not inconsistent with the organic act
and the statutes or this territory. On a second and each subsequent
appeal to the supreme court, or when an appeal has once been dis-
missed for defect or irregularity, the cause shall be placed upon the
calendar as of the time of filing the first appeal; and whenever in any
action or proceeding in which the Territory of Dakota, or any terri-
torial officer, or any board of territorial officers, is or are sole plaintiff
or defendant, an appeal has been or shall be brought from any judg-
ment or order for or against him or them, in any court, such appeal
shall have a preference in the supreme court, and may be moved by
either party out of the order on the calendar.

§ 25. Two JUDOBS MUST CONCUR-] The concurrence of two judges is
necessary to pronounce a judgment. If two do not concur the cause
must be reheard. But no more than two rehearings shall be had;
and if on the second hearing two judges do not concur, the judg-
ment shall be affirmed.

CoAi of Civil Procedure. District Court. 481

§ 26. Adjournment to other rooms.] The supreme court may be held
in other buildings than those designated by law as places for holding
courts, and at a different place in the same, city from that which it is
appointed to be held. Any one or more of the justices may adjourn
the court with the like effect as if all were present. tSU . ^- ^ i:i^. v ^l<f

CHAPTER 111.

OP the DisTmcT court.

§ 27. Chancery ani> common law.] The district courts possess
chancery as well as common law jurisdiction.

§ 28. Exclusive original jurisdiction.} They have exclusive
original jurisdiction in all actions or proceedings in chancery, and in
all actions at law where the debt or sum claimed exceeds one hundred
dollars; and in all cases in which the title to real property or the
boundary thereof in any wise comes in question, except m actions for
forcible entry or forcible and unlawful detainer; and m all actions for
divorce and to obtain a decree of nullity of marriage; and in all such
other cases as now are or may hereafter be provided by law.

§ 29. Of appeals.] They have jurisdiction of appeals from all
final judgments of justices of the peace, and from all judgments,
decrees, or orders of the probate court, or other inferior oflicers or
tribunals, in the cases prescribed by statue. They have also the power
to issue writs of habeas corpus, mandamus, injunction, quo warranto,
certiorari, and all other writs necessary to carry into effect their judg-
ments, decrees, and orders, and to give them a general control over
inferior courts, oflBcers, boards, tribunals, and jurisdictions.

§ 30. Other jurisdiction.] They also possess all such criminal as
well as civil jurisdiction as is conferred by the organic laws, and the
statutes of this territory.

§ 31. Always open for certain purposes.] For the pux-pose of
hearing and determining special proceedings of a civil nature, motions
for new trials in civil actions, motions for and to dissolve or modify
injunctions, motions to set aside or vacate orders of arrest and writs
of attachment, and for the entry of orders and judgments, these
courts are always open. <Jli^ ?k w J. . vi\^ \

CHAPTER IV.

OP probate courts and courts op justices of the peace.

§ 82. JuRiBDiotioN.] The probate courts and the courts of justices
of the peace possess only such jurisdiction as is conferred on them by
the organic laws and the statutes of this territory.

SI

482 Civil Actiot^. Gods of CivU Proceduf^.

PA^RT II.

Civil Actions.

CHAPTER Y.

FORM OF CIVIL ACTIONS.

§ 33. DisTHiTCTiONs ABOLISHED.] The distinction between actions at
law and suits in equity, and the forms of all slich actions and suits,
heretofore existing, are abolished; and there shall be in this territory,
hereafter, but one form of action for the enforcement or protection of
private rights and the redress of private wrongs, which shall be
denominated a civil action.

§ 34. Paetibs named.] In such action, the party complaining shall
be known as the plaintin, and the adverse party as the defendant.

§ 35. Actions upon judgments.] No action shall be brought upon
a judgment rendered in any court of this territory, except a court of a
justice of the peace, between the same parties, without leave of the
court for good cause shown, on notice to the adverse party; and no
action on a judgment rendered by a justice of the peace shall be
brought in the same county, within five years after its rendition,
except in case of his death, resignation, incapacity to act, or removal
from the county, or that the process was not personally serv^ed on the
defendant, or on all the defendants, or in case of the death of some of
the parties, or where the docket or record of such judgment is or shall
have been lost or destroyed.

§ 36. Issues must be stated.] Feigned issues are abolished, and
instead thereof, in the cases where the power now exists to order a
feigned issued, or when a question of fact, not put in issue by the
pleadings, is to be tried by a jury, an order for the trial may be made,
stating distinctly and plainly the question of fact to be tried; and such
order shall be the only authority nace^^iary^- (or a trial.

CHAPTER VI.
time of commencing actions.

in general.

§ 37. Limitations.] Civil actions can only be jcommenced within
the periods prescribed in this code, after the cause of action shall
have accruea, except where, in special cases,. a different limitation is
prescribed by statute. But the objection that the action was not
commenced within the time limited, can only be taken by answer.

Cade of Civil Procedure. Civil Actions. 488

TIMB OF COIIMBHCreO ACTIONS F(^ THE RBCOVBRT OF RBAL FROPBRTT.

g 38. By the territory.] The territory of Dakota will not sue
any person for or in respect to any real property, or the issues or
profits thereof, by reason of the right or title of the territory to the
2i?aine, unless:

1. Such right or title shall have accrued within forty years before
any action or other proceeding for the same shall be commenced; or,
unless. , •

2. The territory, or tliose from whom it claims, shall have received
the rents and profits, of such real property, or of some part thereof,
within the space of forty years.

§39. Persons claiming under.] No action shall be brought for, or
in respect to, real property, by any person claiming by virtue of grants
from the territory, unless the same might have oeen commenced, as
herein specified, in case such grant had not been issued or made.

§ 40. Extension of same.] When grants of real propertv shall
have been issued or made by the territory, and the same shall be
declared void by the determination of a competent court, rendered
upon an allegation of a fraudulent suggestion^ or concealment, or
forfeiture, or mistake, or ignorance of a material fact, or wrongful
detaining, or defective title^ in such case an action for the recovery of
the premises so conveyed may be brought either by the territory, or
by any subsequent grantee of the same premises, his heirs or assigns,
within twenty years after such determination Was made, but not after
that period.

^ 41. Seizin within twenty years.] No action for the recovery of
real property, or for the recovery of the possession thereof, shall be
maintained, unless it appear that the plaintiff, his ancestor, predecessor,
or grantor was seized or possessed oi the premises in question within
twenty years before the commencement of such action.

§ 42. Same.] No cause of action, or defensfe to an action, founded
upon the title to real property, or to rents or services out of the same,
shall be eflfectual unless it appear that the person prosecuting the
action, or making the defense, or under whose title the action is
prosecuted, or the defense is made, Qr the ancestor, predecessor, or
grantor of such person was seized or possessed of the pvemises in
question, within twenty years before the committing of the act in
respect to which such action is prosecuted, or defense made.

§ 43. One year after entry.] No entry upon real estate shall be
deemed sufficient or valid as a claim, unless an action be commenced
thereupon within one year after the makings of such entry, and within
twenty years from the time when the nght to make such entry
descended or accrued.

§ 44. Possession presumed.] In every action for the recovery of
real property, or the possession thereof, the person establishing a legal
title to the premises shall be presumed to have been possessed thereof
within the tiipe required by law; and the occupation of such premises
by any other person shall be deemed to have been under and in
subordination to the legal title, unless it appear that such premises
have been held and possessed adversely to such legal title for twenty
years before the commencement of such action.

r • _

484 Civil Actions. Code oj Civil Procedure.

m

§ 45. Occupation under written instrument.] Whenever it shall
appear that the occupant, or those under whom he claims, entered
into the possession of premises under claim of title, exclusive of any
other right, founding such claim upon a written instrument, as being
a conveyance of the premises in question, or upon the decree or judg-
ment of a competent court, and tnat there has been a continued occu-
Sation and possession of the premises included in such instrument,
ecree, or judgment, or of some part of such premises, under such
claim, for twenty years, the premises so included shall ^be deemed to
have been held adversely; except that where the premises so included
consist of a tract divided into lots, the possession of one lot shall not
be deemed a possession of any other lot of the same tract.

§ 46. Adverse possession.] For the purpose of constituting an
adverse possession, by any person claiming a title founded upon a
written instrument, or a judgment, or a decree, land shall be deemed
to have been possessed and occupied in the following cases:

1 . Where it has been usually cultivated or improved.

2. Where it has been protected by a substantial inclosure.

3. Where, although not inclosed, it has been used for the supply of
fuel or of fencing timber for the purposes of husbandry, or the
ordinary use of the occupant.

4. Where a known farm or a single lot has been partly improved,
the portion of such farm or lot that may have been left not cleared or
not inclosed, according to the usual course and custom of the adjoin-
ing country, shall be deemed to have been occupied for the same length
of time as the part improved and cultivated.

§ 47. Actual adverse holding.] Where it shall appear that there
has been an actual continued occupation of premises, under a claim of
title exclusive of any other right, but not founded upon a written
instrument, or a judgment, or decree, the premises so actually occupied,
and no other, shall be ^eemed to have been held adversely.

§ 48. Under claim not written.] For the purpose of constituting
an adverse possession, by a person claiming title not founded upon a
written instrument, or judgment, or decree, land shall be deemed to
have been possessed ana occupied in the following cases only:

1. Where it has been protected by a substantial enclosure.

2. Where it has been usually cultivated or improved.

§ 49. Landlord and tenant.] Whenever the relation of landlord
and tenant shall have existed between any persons, the possession of
the tenant shall be deemed the possession of the landlord, until the
expiration of twenty years from the termination of the tenancy; or,
where there has been no written lease, until the expiration of twenty
years from the time of the last payment of rent, notwithstanding
that such tenant may have acquired another title, or may have
claimed to hold adversely to his landlord. But such presumptions
shall not be made after the periods herein limited.

§ 50. Effect of descent.] The right of a person to the possession
of any real property shall not be impaired or effected by a descent
being cast in consequence of the death of a person in possession of
such property.

§ 51. Disabilities extend time.] If a person entitled to commence
any action for the recovery of real property, or to make an entry

r —

Code of Civil Procedure. Civil Actions. 485

or defense founded on the title to real property, or to rents or
services out of the same, J)e, at the time such title shall first descend
or accrue, either:

1. Within the age of twenty-one years; or,

2. Insane; or,

3. Imprisoned on gf criminal charge, or in execution upon conviction
of a criminal oflFense for a term less than for life.

The time during which such disability shall continue shall not be
deemed any portion of the time in this chapter limited for the com-
mencement of such action, or the making of such entry or defense;
but such action may be commenced, or entry or defense made, after
the period of twenty years, and within ten years after the disability
shall cease, or after the death of the person entitled who shall die
under such disability; but such action shall not be commenced or
entry or defense made after that period. .

TIME OP COMMENCING ACTIONS OTHER THAN FOR THE RECOYERT OF REAL PROPERTY.

§ 52. Othbb periods.] The periods prescribed in section thirty-
seven for the commencement of actions other than for the recovery of
real property, shall be as follows:

§ 53. Twenty years.] Within twenty years:

1. An action upon a judgment or decree of any court of the United
States, or of any state or territory within the United States.

2. An action upon a sealed instrument.
§ 54. Six years.] Within six years:

1. An action upon a contract, obligation, or liability, express or
implied, excepting those mentioned in section fifty-three.

2. An action upon a liability created by statute, other than a penalty
or forfeiture.

3. An action for trespass upon real property.

4. An action for taking, detaining, or injuring any goods or chattels,
including actions for the specific recovery of personal property.

5. An action for criminal conversation, or for any other injuiy to the
person or rights of another, not arising on contract, and not herein-
after enumerated.

6. An action for relief on the ground of fraud, in cases which hereto-
fore were solely cognizable by the court of chancery, the cause of
action iji such case not to be deemed to have accrued until the dis-
covery by the aggrieved party, of the facts constituting the fraud.

§ 55. Three years.] Within three years:

1. An action against a sheriff, coroner, or constable, upon a liability
incurred by the doing of an act in his official capacity, and in virtue
of his office, or by the omission of an official duty, including the non-
payment of money collected upon an execution. But this section
shall not apply to an action for an escape.

2. An action upon a statute, for a penalty or forfeiture, where the
action is given to the party aggrieved, or to such party and the people
of this territory, except where the statute imposing it prescribes a
different limitation.

§ 56. Two years.] Within two years:

1. An action for libel, slander, assault, battery, or false imprisonment.

4S6 Civil Actions. Code of Civil Procedure.

2. An action upon a statute, for a forfeiture or penalty to the people
of this territory. #

§ 57. One ybae.] Within one year:

1. An action against a sheriflF or other officer, for the escape of a
prisoner arrested or imprisoned on civil process. ^

§ 58. Balance of open account.] In an action brought to recover
a balance due upon a mutual, open, and current account, where there
have been reciprocal demands between the parties, the cause of action
shall be deemed to have accrued from the time of the last item proved
in the account on either side.

§59. F'oEFEiTUEE BY PERSON — TERRITORY.] An actiou upoua statute
for a penalty or forfeiture given in whole or in part to any person who
will prosecute for the same, must be commenC'ed within one year after the
commission of the offense: and if the action be not commenced within
the year by a private party, it may be commenced within two years
thereafter in behalf of the territory, by the district attorney where
the oflFense was committed.

§ 60. Other relief ten years.] An action for relief not herein-
before provided for must be commenced within ten years after the
cause of action shall have accrued.

§ 61. Same to public and persons.] The limitations prescribed in
this chapter, shall apply to actions brought in the name of the terri-
tory, or for its benent, in the same manner as to actions by private
parties.

general provisions as to the timb of commbnciko actions.

§ 62. When action deemed commenced.] An action is commenced
as to each defendant when the summons is served on him, or on a
co-defendant who is a joint contractor or otherwise united in interest
with him. An attempt to commence an action is deemed equivalent
to the commencement thereof, when the summons is delivered, with
the intent that it shall be actually served, to the sheriff or otlier officer
of the county in wtich the defendants, or one of them, usually or
last resided; or, if a corporation be defendant, to the sheriff or lother
officer of the county in which such corporation was established by law,
or where its general business was transacted, or where it kept an
office for the transaction of business. But such an attempt must be
followed by the first publication of the summons, or the service thereof,
within sixty days.

§ 63. Exception — absentee.] If, when the cause of action shall
accrue against any person, he shall be out of the territory, such^action
may be commenced within the terms herein respectively limited*-after
the return of such person into this territory; and if, after such tfause
of action shall have accrued, such person shall depart from and reside
out of this territory, the time of his absence shall not be deemed or
taken as any part of the time limited for the commencement of such
action,

§ 64. Same — disabilities.] If a person entitled to bring an action
other than for the recovery of real property, except for a penalty or
forfeiture, or against a sheriff or other officer for an escape, be at ttte
time the cause of action accrued, either:

1. Within the age of twenty-one years; or,

2. Insane; or,

Code af CivU Procedure. Civil Actions. 487

3. Imprisoned on a criminal chaige; or in execution under the
sentence of a criminal court, for a term less than his natural life.

The time of such disability is not a part of the time limited for the
commencement of the action; Provided, That the period within which
the action must be brought cannot be extended more than five years
by any such disability exoejpt infancy, nor can it be extended in any
case longer than one year after the disability ceases.

% 65. Death.] If a person entitled to bring an actioa die before
the expiration of the time limited for the commencement tliereof, and
the cause of action survive, an action may be commenced by his repre-
sentatives, after the expiration of that time, and within one year from
his death. If a person against whom an action may be brought die
before the expiration of the time limited for the commencement
thereof, and the cause of action survive, an action may be commenced
aj^ainst his executors or administrators after the expiration of that
time, and within one year after the issuing of letters testamentary or
of administration.

§ 66. Wa.r.J When a person shall be an alien subject, or cutizen of
a ooontry at war with the United States, the time of the continuance
of the war is part of the period limited for the commencement of the
action.

§ 67. Whbn judgment bevebsed.] If an action be commenced

within the time prescribed therefor, and a judgment therein be

reversed on appeal, the plaintiff, or if he die and cause of action

survive, his heirs or representatives may commence a new action

^ within one year after the reversal.

§ 68. Stay by injunction, ac] When the commencement of an
action is stayed bv injunction or statutory prohibition, the time of the
continuance of ttie injunction or prohibation is not part of the time
limited for the commencement of tne action.

§ 69. When disability available,] No person can avail himself
of a disability, unless it existed when his rignt of action accrued.

§ 70. . Co-ExisTiNe disabilities.] When two or more disabilities
oo^exiat at the time the right of action accrues, the limitation does not
attach until they are all removed.

§ 71. Bank notes.] This chapter does 'not aflfect actions to enforce
the payment of bills, notes, or other evidences of debt, issued by
moneyed corporations, or issued or put in circulation as money.

§ 72. * Moneyed oobporationb.] Tnis chapt^er shall not affect actions
againsVdirectors or stockholders of a moneyed corporation, or bank-
ing affiociation, to recover a penalty or forfeiture imposed, or to
emort^e a liability created by law; but such actions must be brought
within six years after the discovery, by the aggrieved party, of the
facts upon which the penalty or forfeiture attached, or the liability
was created.

§ 73u New pbomise in wkjting.1 No acknowledgment or promise
is sufficient evidence of a new or continuing contract, whereby to
take tile case out of the operation of this chapter* uuless the same be
contained in some writing signe<^l by the pai-ty to be charged thereby;
but thia section shall not alter the effect of any payment of principal
or interest.

48S CivtL Actions. Code of Civil. Procedure.

CHAPTER VIL

a
«

PARTIES TO CIVIL ACTIONS.

§ 74. Party in interest.] Every action must be prosecuted in the
name of the real party in interest, except as otherwise provided in
section seventy-six ; but this section shall not be deemed to authorize
the assignment of a thin^ in action not arising out of contract. But
an action may be maintained by a grantee of land in the name of a
grantor, when the grant or grants are void by reason of the actual
possession of a person claiming under a title advei'se to that of the
grantor at the time of the delivery of the grant, and the plaintiff
shall be allowed to prove the facts to bring the case within 'this
provision.

§ 75. AssioNBE — equities.] In the case of an assignment of a
thing in action, the action by the assignee shall be without prejudice
to any set-off or other defense existing at the time of, or before notice
of, the assignment; but this section shall not apply to a negotiable
promissorv note or bill of exchange, transferrea in good Mth, and
upon good consideration, before due.

§ 76. Executors and trustees.] An executor or administrator, a
trustee of an express trust, or a person expressly authorized by
statute, may sue, without joining with him the person for whose
benefit the action is prosecuted. A trustee of an express trust,
within the meairing of this section, shall be construed to include a
person with whom or in whose name a contract is made for the benefit
of another.

§ 77. Married woman.] When a married woman is a party, her
appearance, the prosecution or defense of the action, and the joinder
with her of any other person or party, must be governed by the same
rules as if she was single.

§ 78. By ouARDiAN FOR INFANT.) Whcu au infant is a party, he
must appear either by his general guardian, or by a guaiHlian appointed
by the court in which the acj^ion is prosecuted, or by a jud^e thereof.
A guardian may be appointed in any case, when it is deemed
by the court in which the action is prosecuted, or by a judge thereof,
expedient to represent the infant in the action, notwithstanding he
may have a general guardian, and may have appeared by him.

§ 79. How GUARDIAN APPOINTED.] The guardiau shall be appointed:

1. When the infant is plaintiff, upon the application of the itifant,
if he be of the age of fourteen years ; or if under that age, upoh the
application of his general or testamentary guardian, if he has any, or
of a relative or friend of the infant. If ma<fe by a relative or Mend of
the infant, notice thereof must first be given to such guardian, if he
has one ; if he has none, then to the person with whom such infant
resides.

2. When the infant is defendant, upon the application of the infant,
if he be of the age of fourteen years, and apply within twenty days
after the service of summons. If he be under the age of fourteen, or
neglects so to apply, then up6n the application of any othet" patty to
the action, or of a relative or friend of the infant, after notice of such

Code of Civil Procedure. Civil Actions. 489

amplication being first given to the ^neral or testamentary guardian
ol such infant, if he has ome within this territory; if he has none, then
to the infant himself, if over fourteen years of age, and within the
territory; or, if under that aee, and within the territory, to the person
with whom such infant resides. And in actions for the partition of
real property, or for the foreclosure of a mortgage, or other instru-
ment, wnen an infant defendant resides out of this territory, the plain*
tiff may apply to the court, or a judge thereof, in which the action is
pending,* and will be entitled to an order designating some suitable
person to be the guardian for the infant defendant, for the purposes of
the action, unless the infant defendant, or some one in his behalf,
within a number of days after the service of a copy of the order, \yhich
number of days shall be in the said order specified, shall procure to be
appointed a guardian for the said infant; and the court shall give
special directions in the order for the manner of the service thereof,
which may be upon the infant himself, or by service upon any relation
or person with whom the infant resides, and either by mail or person-
ally upon the person bo served. And in case an infant defendant,
having an interest in the event of the action, shall reside in any state
with which there shall not be a regular communication by mail, on
such fact satisfactorily appearing to the court, the court may appoint
a guardian ad litem for such absent infant party, for the purpose of
protecting the right of -such infant in said action, and on such guardian
ad litem process, pleadings, and notices in the action may be served, in
the like manner as upon a party residing in this territory,

§ 80. Guardian's security.] No guardian appointed for an infant
under- the provisions of this chapter, shall be permitted to receive any
money or other property of the infant, except costs and expenses
allowed to the guardian by the court, or recovered by the infant in the
action, until he has given sufficient security, approved by the judge of
ttie C/Ourt, to account for and apply the same under the direction of the
court. And no person appointed a guardian for the purpose of defend-
ing an action brought against an intant, shall be liable for costs of such
action, unless specially charged by the order of the court for some
personal misdemeanor therein.

8 81. Who to be plaintiffs.] All persons having an interest in the
subject of the iaction, and in obtaining the relief demanded, may be
joined as plaintiffs, except as otherwise provided in this chapter.

§ 82. Defendants.] Any person may be made^a defendant who has
or claims an interest in the controversy adverse to the plaintiff, or
who is a necessary party to a complete determination or settlement of
the questions involved therein; and in an action to recover possession
of real estate, the landlord and tenant thereof may be joined as
defendants, and any person claiming title or ri^ht of possession to
real estate may be made parties plaintiff or deiendant, as the case
may require, to any such action.

§ 88. Parties to be joined.] Of the parties to the action, those
who are united in interest must be joined as plaintiffs or defendants;
but if the consent of any one who should have been joined as plain-
tiff cannot be Obtained, he may be made a defendant, the reason
thereof being stated in the complaint; and when the question is one
of a common or general interest of many persons, or when the parties

490 Civil Actions. Code of Okil Procedttre.

are very numerous, and it may be impracticable to bring them all
before the court, one or more may sue or defend for the benefit of the
whole.

§ 84. Bills and notes.] Persons severally liable upon the same
obligation or instrument, including the parties to bills of exchange
and promissory notes, whether the action is brought upon the instru-
ment, or by a party thereto to recover against other parties liable over
to him, and persons liable severally for the same debt or demand,
although upon different obligations or instruments, may all, or aiiy of
them, be included in the same action, at the option of the plaintiff.

§ 85. Action does not abate.] No action shall abate by the death,
marriage, or other disability of a party, or by the transfer of any
interest therein, if the cause of action survive or continue. In case
of death, or other disability of a party, the court, on motion, at any
time within one year thereafter, or afterwards on a supplemental
complaint, may allow the action to be continued by or against his
representatives or successor in interest. In case of any other transfer
of interest, the action shall be continued in the name of the original
party, or the court may allow the person to whom the transfer is made
to be substituted in the action. After a verdict shall be rendered in
any action for a wrong, such action shall not abate by the death of
any party, but the case shall proceed thereafter in the same manner
as in cases where the cause of action now survives by law. At any
time after the death, or other disability of the party plaintiff', the
court in which an action is pending, upon notice to such persons as it
inay direct, and upon application oi any person aggrieved, may, in its
discretion, order that the action be deemed abated, unless the -same
be continued by the proper parties, within a time to be fixed by the
court, not less than six months nor exceeding one year from the
granting of the order.

§ 86. SuocEssoB MAY REVIVE JUDGMENT.] Where judgment has
heretofore or shall hereafter be recovered for the possession of real
property, and the party recovering such judgment shall have died
subsequent to the recovery thereoi, his successor in interest in said
real property, whether by grant, devise, or inheritance, may revive
said judgment and enforce the same by execution, on motion, within
one year after said death, or afterwards on supplemental complaint.

§ 87. NoN-RBSiDBNT INTESTATE.] Whou au intostatc not being an
inhabitant of the territory shall die out of the territory, not leaving
assets therein, and there shall be pending in the supreme court an
appeal brought by such intestate nrom a judgment against him, the
court in which such appeal is pending may order the judgment
appealed from affirmed, with costs, unless the attorney for the intestate
on said appeal procure such action to be revived within six months
after notice to perfect such appeal by the substitution of a representa-
tive in said action.

J^ 88. Death of one of several PAETiEa] Where one of two or
more plaintiffs, or one of two or more detendante, in an action, dies,
and only part of the cause of action, or of several distinct causes of
action, survives to or against the others, the action ma^ proceed with-
out bringing in the person who has succeeded to the rights of the
deceased party; and the judgment shall not affect him or his interest

Code of Civil Procedure. Civil Actions. 491

•

in the subject af the action. But the court may order such successor
of a deceased party, or any person who claims to be such successor, to
be brought in as a party, either plaintiff or defendant, whenever it
appears proper to do so, upon his own application or upon the applica-
tion of anv party to the action, and if necessary, that supplemental
pleadings be put in. The defendant, or surviving defendant, in the
action, may proceed against such successor, in the same manner as a
plaintiff, to bring him m and have his rights settled by judgment.

§ 89. Power of court — interpleader.] The court may determine
any controversy between the parties before it, when it can be done
without prejudice to the rights of othei-s, or by saving their rights: but
when a complete determination of the controversy cannot be had
without the presence of other parties, the court must cause them to be
brought in.

§ w. Intervention when.] Any person may, before the trial,
intervene in an action or proceeding, who has an interest in the
matter in litigation in the success of either party, or an interest
against both. An intervention takes place when a third person is
permitted to become a party to an action or proceeding between other
persons, either by joining the plaintiff in claiming what is sought by
the complaint, or by uniting with the defendant in resisting the claims
of the plaintiff, or by demanding anything adversely to both the
plaintiff and the defendant, and is made by complaint, setting forth
the grounds upoti which the intervention rests, filed by leave of the
court, and served upon the . parties to the action or proceeding who
have not appeared, and upon the attorneys of the parties who have
appeared, wiio may answer or demur to it as if it were an original
complaint.

§ §1. Interpleader.] A defendant against whom an action is
pending upon a contract, or for specific, real, or personal property,
may at any tinie before answer, upon affidavit that a person not a

E arty to the action, and without collusion with him, makes against
im a demand for the same debt or property, upon due notice to such-
person and the adverse party, apply to the court for an order to sub-
stitute such person in his place, and discharge him from liability " to
either party, on his depositing in court the amount of the debt, or
delivering the property or its value to such person as the court may
direct: and the court may in its discretion, make the order.

CHAPTER VIII.

OF THE PLACE OF TRIAL OF CIVIL ACmONS.

§ 92. Where subject matter is. ) Actions for the following causes
must be tried in the county in which the subject of the action, or
some part thereof, is situated, subject to the power of the court to
change ttie place of trial, in the cases provided by statute:

1. For the recovery of real property, or of an estate or interest
therein, or for the determination in any foi*m of such right or inter-
est, and for injuries to real property.

492 Civil Actions. Code of Civil Procedure.

2. For the partition of real property.

3. For the foreclosure of a mortgage of real property.

4. For the recovery of personal property distrained for any cause.

§ 93. Where the cause arose.] Actions for the following causes
must be tried in the county where the cause, or some part thereof,
arose, subject to the like power of the court to change the place of
trial:

1 . For the recovery of a penalty or forfeiture imposed by statute,
except that, when it is imposed for an offense committed on a lake or
river, or other stream of water situated in two or more counties the
action may be brought in any county bordering on such lake, river or
stream, and opposite to the place where the offense was committed.

2. Against a public officer, or person specially appointed to execute
his duties, for an act done by him in virtue of his office, or against a

Serson who, by his command or his aid, shall do anything touching the
uties of such officer.

§ 94. Where any party rksibbs.] In all other cases the action
shall be tried in the county in which the parties or any of them shall
reside at the commencement of the -action, or, if none of the parties
shall reside in the territory, the same may be tried in any county
which the plaintiff shall designate in his complaint, subject, however,
to the power of the court to change the place of trial in the cases
provided by statute. cX^ .^ ^""-^ - ^% v

§ 95. Defendant must asx ohanoe — court may ghanoe;.] If the
county designated for that purpose in the complaint be not the proper
county, the action may, notwithstanding, be tried therein, unless the
defendant, before the time for answering expire, demand in writing
that the trial be had in the proper county, and the place of trial be
thereupon changed by consent of parties, or by order of the court, as
provided in this section. The court may change the place of trial in
the following cases:

1. When the county designated for that purpose in the complaint is
not the proper county.

2. when there is reason to believe that an impai-tiai trial cannot
be had therein.

3. When the convenience of witnesses and the ends of justice would
be promoted by the change.

When the place of trial is changed, all other proceedings shall be
had in the county to which the place of triiil is changed, unless other-
wise provided by the consent of the parties, in writing, duly filed, or
order of the court; and the papers shall be filed or transferred accord-
ingly.

CHAPTER IX.

manner of commencing civil acfions.

§ 96. By summons.] Civil actions in the courts of this territory
shall be commenced by the service of a summons.

§ 97. Bbquisitbs of sam&.} The summons shall be subscribed by
the plaintiff or his attorney, and directed to the defendant, and shall

Code of Civil Procedure, Civil Actions. 493

require him to answer the complaint, and serve a copy of his answer
on the person whose name is subscribed to the summons, at a place
within the territory, to be therein specified, in which there is a post-
office, within thirty days after the service of the summons, exclusive
of the day of service.

§ 98. JToTiOBS REQUIRED IN.] The plaintiff shall also insert in the
summons a notice, in substance as follows:

1. In action arising on contract, for the recovery of money only,
that he will take judgment for a sum specified therein, if the
defendant fail to answer the complaint in thirty days after the service
of the summons.

2. In other actions, that if the defendant shall fail to answer the
complaint within thirty days after the service of the summons, the
plaintiff will apply to the court for the relief demanded in the
complaint.

§ 99. Service of complaint.] A copy of the complaint need not be
served with the summons. In such case the summons must state
where the complaint is oi^ will fte filed; and if the defendant, within
thirty days thereafter, cause notice of appearance to be given, and,
in person or by attorney, demand in writing a copy of the complaint,
specifying a place within the territory where it may be served, a copy
thereof must, within twenty days thereafter be served accoriingly,
and after such service the defendant has thirty days 'to answer, but
only one copy need be served on the same attorney.

§ 100. Notice of no personal claim.] In the case of a defendant
against whom no personal claim is made, the plaintiff may deliver to
such defendant, with the summons, a notice subscribed by the plaintiff
or his attorney, setting forth the general object of the action, a brief
description of the property affected by it, if it affects specific, real, or

Sersonal property, and that no personal claim is made against such
efendant, in which case no copy of the complaint need be served on
such defendant, unless within the time for answering he shall, in writ-
ing, demand the same. If a defendant on whom such notice is served
nnreasonably defend the action, he shall pay costs to the plaintiff.

§ 101. Lis pendens — ^effect of.] In an action affecting the title to
real property, the plaintiff- at the time of filimg the complaint, or at
any other time afterwards, or whenever a warrant of attachment of

Sroperty shall be issued, or at any time afterwards, the plaintiff, or a
efendant when he sets up an affirmative cause of action in his answer,
and demands substantive relief, at the time of filing his answer, or at
any time afterwards, if the same be intended to affect real property,
may file with the register of deeds of each county in which the real
proi)erty is situated, a notice of the pendency of the action, containing
the names of the parties, the object of the action, and the description
of the real property in that county affected thereby; but if the action
be for the foreclosure of a mortgage, no such notice need be filed.
From the time of filing only shall the pendency of the action be con-
structive notice to a purchaser or incumbrancer of the property
affected thereby; and every person whose conveyance or incumbrance is
subsequently executed, or subsequently recorded, shall be deemed a
subsequent purchaser or incumbrancer, and shall be bound by all pro-
ceedings taEen after the filing of such notice to the same extent as if

494 Civil Actions. Cade qf Civil Procedure.

he were a party to the action. For the purpose of. this section, an
action shall be deemed to be pending from the time of filing such
notice; Provided^ however^ That such notice shall be of no avail unless
it shall be followed by . the first publication of the summons on an
order therefor, or by the personal service thereof on a defendant within
sixty days after such filing. And the court in which the said action
was commenced, may in its discretion, at any time after the action
shall be settled, discontinued, or abated, as is provided in section num-
ber eighty-five, on application .of auv person aggrieved, and on good
cause shown, and on such notice $bs shall be directed or approved by
the court, order the notice authorized by this section to be canceled
of record by the register of deeds of any county in whose office the
same may have been filed or recorded; and such canC/ellation sh^.ll be
made by an indorsement to that effect on the margin of the record,
which shall refer to the order, and for which the registerof deeds shall
be entitled to a fee of twenty-five cents.

§ 102. Summons — how sbbve©.] The summons shall be served by
delivering a copy thereof as follows ; t5x*%l*i" i\^ \

1. If the action be against a corporation, to the president or other
head of the corporation, secretary, cashier, treasurer, a director, or
managing agent thereof; but such service can be made in respect to a
foreign corporation only when it has property in this territory, or the
cause of actio» arose therein, or when such service shall be made
within this territory personally upon the president, treasurer, secre-
tary, or duly authorized agent thereof.

2. If against a minor under the age of fourteen years, to such
minor personally, and also to his father, mother, or guardian; or if
there be none within the territory, then to any person having the care
and control of such minor, or with whom he shall reside, or in whose
service he shall be employed.

3. If against a person judicially declared to be of unsound mind^ or
incapable of conducting his own affairs in consequence of habitual
drunkenness, and for whom a guardian has been appointed, to such
guardian and to the defendant personally.

4. In all other cases, to the defendant personally; and if the defend-
ant cannot convenientjjr be found, by leaving a copy thereof at his
dwelling house, in the presence of one or more of the members of his
family over the age of fourteen years; or, if the defendant reside in
the family of another, with one of the members of the family in
which he resides over the age of fourteen years.

Service made in any of the modes provided in this section shall be
taken and held to be personal service.

§ 103. By whom summons served,] The summons may be served by
the sheriff of the county where the defendant may be found, or by any
other person not a party to the action. The service sh^all be made,
and the summons returned with proof of the service to the person
whose name is subscribed thereto, with all reasonable diligence. The
person subscribing the summons may, at his option, by an indorsem^at
on the summons, fix a time for the service thereof^ and the service shall
then be made accordingly.

§ 104. By publication — cases anjd manner.] Where the person on
whom the service of the summons i^ to be made cannot^ after due

Code of Cwil Procsduf^. Civil Actioks. 495

diligence, be found within the territory, and that fact appeal^ by
affidavit to the satisfaction of the court or a judge thereof, and it in
like manner appears that a cause of action exists against the defendant
in respect to whom the service is to be made, or that he is a proper
party to an action relating to real property in this^ territory, such court
or judffe may grant an order that the service be made by the publica-
tion of a summons -in either of the following cases:

1. Where the defendant is a foreign corporation, has property
¥rithin the territory, or the cause of action arose therein.

2. Where the defendant, being a resident of this territory, has
departed therefrom, with intent to de&aud his creditors, or to avoid
the service of a summons, or keeps himself concealed therein with the
like intent.

8. Where he is not a resident of this territory, but has property
therein, and the court has jurisdiction of the subject of the action.

4. Where the subject of the action is real of personal property in
Uns territory, and the defendant has or claims a lien or interest,
actual or contingent, therein, or the relief demanded consist wholly
or partly in excluding the defendant from any interest or lien therein.

5. Where the action is for divorce or for- a decree annulling a
marriage.

The order must direct the publication to be made in some news-
paper to be designated as most likely to give notice to the person to
be served^ and for such lengths of time as may be deemed reasonable,
not less than once a week for six weeks. In case of publication, the
court or judge must also direct a copy of the summons and complaint
to be forthwith deposited in the post office, directed to the person to
be served^ at his place of residence, unless it appear that such residence
is neither known to the party making the application, nor can with
reasonable diligence be ascertained by him. When publication is
ordered, personal service of a copy of the summons and complaint, out
of the territory, is equivalent to publication and deposit in the post
office. The defendant against whom publication is ordered, or his
representatives, on application and sufficient cause shown at any time
before judgment, must be allowed to defend the action; and, except in
an action for divorc/e, the defendant against whom publication is
ordered, or his representatives, may, in like manner, upon good cause
shown, be allowed to defend after judgment, or at any time within one
year after notice thereof, and within seven years after its rendition, on
such terms as may be just; and if the defense be successful, and the
judgment or any part thereof have been collected, or otherwise
enforced, such restitution may thereupon be compelled as the court
directs; but the title to property sold under such judgment to a pur-
ehaser in good faith shall not be thereby affected. And in all cases
where publi^tion is made, the complaint must be first filed, and the
summons, as published, must state the time and place of such filing.
In actions for the foreclosure of mortgages on real estate, already
instituted, or hereafter to be instituted, if any party or parties having
any interest in or lien upon such mortgaged premises are unknown to
the plaintiff, and the residence of such party or parties cannot, with
reasonable diligence, be ascertained by him, and such fact shall be
made to. appear, by affidavit, to the court, or to a justice thereol such

496 Civil Actions. Code of Civil Procedure.

court or justice may grant an order tiiat the summons be served on
siich unknown party or parties by publishing the same for six weeks,
once in each week successively, in a newspaper printed in the county
where the premises are situated, provideii a paper be published in
such county; and if no paper be published in the county, then in a
paper published nearest the county seat of such countv in the territory,
which publication shall be equivalent to a personal service on sudi
unknown party or parties.

§ 105. Joint and sbvbbal debtors.] Where the action is against
two or more defendants, and the summons is served on one or more,
but not on all of them, the plaintiff may proceed as follows:

1. If the action be against defendants jointly indebted upon con-
tract, he may proceed against the defendant served, unless tne court
otherwise direct; and if he recover judgment, it may be entered against
all the defendants thus jointly indebted so far only as that it may be
enforced affainst the joint, property of all, and the separate property of
the defen£ints served, and if they are subject to arrest, against the
persons of the defendants served ; or,

2. If the action be aeainst defendants severally liable, he may pro-
ceed against the defenaants served, in the same manner as if they
were the only defendants.

3. If all the defendants have- been served, judgment may be taken
against any or either of them severally, when the plaintiff would be
entitled to judgment against such defendant or defendants, if the
action had been against them, or any of them alone.

4. If the name of one or more partners shall, for any cause, have
been omitted in any action in which judgment shall have pai^sed
against the defendants named in the summons, and such omission shall
not have been pleaded in such action, the plaintiff, in case the judg-
ment therein shall remain unsatisfied, may by action recover of sucli
partner separately, upon proving his joint liability, notwithstanding
he may n6t have been named in the original action; but the plaintiff
shall have satisfaction of only one judgment rendered for the same
cause of action.

§ 106. When service complete.] In the cases mentioned in section
104, the service of the summons shall be deemed complete at the
expiration of the time prescribed by the order for publication.

§ 107. Proof of service — ^aoobptanob.] Proof of the service of the
summons, and of the complaint or notice, if any^ accompanying the
same, must be as follows:

1. If served by the sheriff, his certificate thereof; or,

2. If by any other person, his affidavit thereof; or,

3. In case of publication, the affidavit of the nrinter, or his fore-
man, or principal clerk, showing the same, and an afSdavit of* a
deposit of- a copy of the summons in the postoffice, as required by law
if the same shall have been deposited; or,

4. The written admissions of the defendant.

In cases of service ^ otherwise than by publication, the certificate,
affidavit, or admission, must state the time, place, and manner of
service.

§ 108. Jurisdiction — appearance.] Prom the time of the service
of the summons in a civil action, or the allowance of a provisional

Codn of Civil Procedure. Civil Actions. 497

remedy, the court is deemed to have acquired jurisdiction, and to have
control of all the subsequent proceedings. A voluntary appearance of
a defendant is equivalent to personal service of the summons upon
him. .

CHAPTER X.

OF PIiBA.fflJ*€tS IN CIVIL ACTIpNa

THE COMPLAINT.

§ 109. Forms abolished.] All forms of pleading heretofore existing
are abolished; and hereafter, the forms of pleading in civil actions in
courts of record, and the rules by which tne sufficiency of the plead-
ings is to be determined, are those prescribed by this act.

8 110. Complaint.] The first pleading, on the part of the plaintiff
is the complaint.

§ 111. What to contain.] The comjpiainfe shall contain:

1. The title of the cause, specifying thenayne of the court in which
the action ^is brought^ the name of county in which the plaintiff
desires the trial to be had, and the names of the parties to the action,
plp.intiff and defendant.

2. A plain and concise statement, of the facts constituting a cause of
action^ without unnecessary repetition.

3. A demand- of the relief to which the plaintiff* supposes himself
entitled. If the recovery of money be demanded, the amount thereof
shall be stated. ^

TH£ DfiMtTRRBR.

§112. Defendant MAY DEMUE OR ANSWER.] The only pleading on
the part of defendant is either a demurrer or an answer. It must be
served within thirty days after the service of the copy of the com-
plaint.

§ 113. Whjin may demur!] The defendant may demur to the com-
plaint when it shall appear upon the face thereof, either:

1. That the. court has no jutisdiction of the person of the defendant,
or the subject of .the action; or,

2. That the plaintiff, has not legal capacity to sue; or,

3. That there is another action pending between the same parties,
for the same cause ; or,

4. That there is a detect of parties, plaintiff or defendant; or,

5. That several causes of action have been improperly united; or,

6. That the complaint does not state facts sufficient to constitute a
cause of action.

§ 114, RsQuisiTiss OF DEMURRER.] The demurrer shall distinctly
specify the grounds of objection to the complaint. Unless it do so, it
may be disregarded. It may be taken to the whole complaint, or to
any of the alleged causes .of action stated therein.

§ 115. If complaint be amended.] If the complaint be amended,
a co]^y thereof must be s^rved on the defendant^ who must answer it
within thirty days, or the plaintiff, upon filing with the clerk, on due
prpof pf the service, ajod of .the defendant's omission, may proceed

8« ' ,

#1

I

498 Civil Actions. Code of .Civil Procedure.

to obtain judgment, as provided by section 199, but where an appli-
cation to the court for judgment is necessary, ten days' notice thereof
must be given to the defendant.

§ 116. When answer.] When any of the matters enumerated^ in
section 113 do not appear upon the face of the complaint, the objection
may be taken by answer.

§ 117. When objection waived.] If no such objection be taken
either by demurrer or answer, the defendant shall be deemed to have
waived the same, excepting only the ot^ection to the jurisdiction of
the court, and the objection that the complaint does not state facta^
sufficient to constitute a cause of action.

•
TUK ▲NSWBU.

§ 118. Requisites of answer.] The answer of the defendant must
contain :

1. A general or specific denial of each material allegation of the
complaint controverted by the defendant, or any knowledge or infor-
mation thereof sufficient to form a belief.

2. A statement of any new matter constituting a defense or counter-
claim, in ordinary and concise language, without repetition.

§ 119. Requisites of counter-claim.] The counter-claim mentioned
in the last section must be one existing in favor of a defendant, and
against a plaintiff, between whom a several judgment might be had in
the action, and arising out of one of the following causes of action:

1. A cause of action arising out of the contract or transaction set
forth in the complaint as the foundation of the plaintiff's claim, or
connected with the subject of the action. ^

2. In an action arising on contract, any other cause of action aris-
ing also on contract and existing at the commencement of the action.
The defendant may set forth by answer as many defenses and counter-
claims as he may have, whether they be such as have been heretofore
denominated legal, or equitable, or both. They must each be separately
stated, and refer to the causes of action which they are intended to
answer, in such manner that they may be intelligibly distinguished.

§ 120. Demurrer and answer.] The defendant may demur to one
or more of several causes of action stated in the complaint, and answer
the residue.

§ 121. SuAM DEFENSES.] Sham and irrelevant answers and defenses
may be stricken out on motion, and upon such ternis as the courts
may in their discretion impose.

THIE BBPLY.

§ 122. Reply when — demurrer to answer.] When the answer
contains new matter constituting a counter-claim, the plaintiff may,
within thirty days, reply to such new matter, denying generally or
specifically each allegation controverted by him, or any knowledge or
information thereof sufficient to form a belief; and he may allege, in
ordinary and concise language, without repetition, any new matter
not inconsistent with the complaint, constituting a defense to such
new matter in the answer; ana the plaintiff may in all cases demur to
an answer containing new matter, where, upon its face, it does not
constitute a counter-claim or defense, and the plaintiff may demur to

I

Code of Civil Procedure. Civil Actions. . 499

one or more of such defenses or counter-claims, and reply to the resi-
due of the counter-claims. And in other cases, When an answer con-
tains new matter constituting a defense by way of avoidance, the
court may, in it& descretion, on the defendant's motion, require a
reply to such new matter; and in that case, the reply shall be sub-
ject to the samq rules as a reply to a counter-claim.

§ 123. Judgment on answer.] If the answer contain a statement
of new matter constituting a counter-claim, and the plaintiff fail to
reply or demur thereto witnin the time prescribed by law, the defend-
ant may move, on a notice of not less than ten days, for such judgment
as he is entitled to upon such statement, and if the case require it, a
writ of inquiry of damages may be issued.

§ 124. Demurrer to reply.] If a reply of the plaintiff to any
defense set up by the answer of the defendant be insufficient, the
defendant may demur thereto, and shall state the grounds thereof.

• * •

GJCNBRAL RULBS OF JPLBADINQ.

§ 125. SuBSRCiBED — VERIFICATION.] Evcry pleading in a court of
record must be subscribed by tlie party or his attorney; and when any
pleading is verified, every subsequent ^pleading, except a demurrer,
must be verified also.

§ 126. Requisittes of verification.] The verification must be to
the effect that the same is true to the knowledge of the person making
it, except as to those matters stated on information and belief, and, as
to those matters, he believes it to be true, and must be by the affidavit
of the party, or if there be several parties united in interest, and plead-
iiig together, by one at least of such parties acquainted with the facts,
if such party be within the countv where the attorney resides, and
capable of making the affidavit. The affidavit may also be made by
the agent or attorney, if the action or defense be founded upon a
written instrument for the payment of money only, and such instru-
nient be in the possession of the agent or attorney, or if all the mate-
rial allegations of the pleading be within the personal knowledge of
the agent or attome;^. When the pleading is verified by any other
person than the party, he shall set forth in tne affidavit his knowledge,
or the grounds of his belief oil the subject, and the reasons why it is
not mme by the party. When a corporation is a party, the verifica-
tion may be made by any officer. thereof; and when the territory, or
any officer thereof in its behalf, is a party, the verification may be
made by any person acquainted with the facts. The verification may
be omitted when an admission of the truth of the allegation might
subject the party to prosecution for felony. And no pleading can be
used in a cnminal prosecution against the party, as proof of a fact
adiqitted or alleged in such pleading.

§ 127. Statement op account.] It shall not be necessary for a party
to set forth in a pleading the items of an account therein alleged; but
he shall deliver to the adverse party, within ten days after the demand
thereof in writitig, a copy of the account, which, if the pleading is
verified,^ must be verified by his own oath, or that of his agent or
attorney, if within the personal knowledge of such agent or attorney,
to the effect that he believes it to be true, or be precluded from giving
evidence thereof The court, or a judge thereof, may order a " further

500 , Civil Actiokb. Code of Civil Procedure,

account," when the one delivered is defective; and the court may in
all c£tses order a bill of particulars of the claim of either party to be
furnished.

§ 128. Liberal oonstbuotion.] In the construction of a
for the purpose of determining its effect, its allegation shall
ally construed, with a view of substantial justice between the parties.

§ 129. Making pleading definite,] If iiTelevant or redundant
matter be inserted in a pleading, it may be stricken out, on motion of
any person aggrieved thereby. And when the allegations of a pleading
are so indefinite or uncertain that the precise nature of the charge or
defense is not apparent, the court may require the pleading to be
made definite and certain by amendment.

§ 130. Pleading a judgment.] In pleading a judgment, or other
determination of a court. or oflScer of special jurisdiction, it shall not
be necessary to state the fstcts conferring jurisdiction, but such judg-
ment or determinatiop may be stated to have been duly given or made.
If such allegation be controverted, the party pleading shall be bound
to establish, on the trial, the facts conferring jurisdiction.

§ 131. Conditions pbecedbnt.] In pleading the performance of
conditions precedent in a contract, it shall not be necessary to state
the facts showing such perfornrance; but it may be stated generally
that the party duly performed all the conditions on his part; and if
such allegations be controverted, the party pleading shall Jbe bound to
establish, on the trial, the facts showing such performance. In an
action or defense founded upon an instrument for the payment of
money only, it shall be sufficient for a party to give a copy of the
instrument and to state that there is due to him thereon from the
adverse party a specified sum which he claims.

§ 132. Private statute.] In pleading a private statute, or a right
derived therefrom, it shall be sufficient Jbo refer to such statute by its
title and the day of its passage, and the court shall thereupon take
judicial notice thereof

§ 133. Libel ob slander.] In an action for libel or slander, it shall
not be necessary to state in the complaint any intrinsic facts, for the
purpose of showing the application to the plaintiff of the defamatory
matter out of which the cause of action arose, but it shall be suffi-
cient to state generally that the same was published or spoken concern
ing the plaintiff, and if such allegation be controverted, the plaintiff
shall be bound to establish, on trial, that it was so published or spoken.

§134. Same- -defendant's ANSWER.] In the actions mentioned in
the last section, the defendant may, in his answer, allege both the
truth of the matter charged as defamatory and any mitigating circum-
stances, to reduce the amount of damages; and whether he prove the
justification or not, he may give, in evidence, the mitigating cir-
cumstances.

§ 135. Answer op possession.] In an action to recover the posses-
sion of property distrained doing damage, an answer that the defendant
or person by whose command he acted was lawfully possessed of the '
real property upon which the distress was made, and that the property
distrained was at the time doing damage thereon, shall be good, with-
out setting forth the title to sucn real property.

Code of Civil Procedure. Civil Actions. 501

§ 136. Joinder of actions — mortgagbs.] The plaintiff may unite in
the same complaint several causes of action, whether they be such as
have been heretofore denominated legal, or equitable, or both, where
they all rise out of :

1. The same transaction, or transactions connected with the same
subject of action.

2. Contract, express or implied; oi-,

8. Injuries, witn or without force, to person and property, or either ; or,

4. Injuries to character: or,

5. Claims to recover real property, with or without damages for the
withholding thereof, and the rents and profits of the same, or for waste
committed thereon; or,

6. Claims to recover personal property, with or without damages
for the withholding thereof; or,

7. Claims against a trustee, by virtue of a contract, or by operation
of law.

But the causes of action, so united, must all belong to one of these
classed, and, excej)t in actions for the forclosure of mortgages, nmst
affect all the parties to the action, and not require different places of trial,
and must be separately stated. In actions to foreclose mortgages, the
court shall have power to adjudge and direct the payment, l:)y the
mortgagor, of any residue of the mortgage debt that may remain
unsatisfied after a sale of the mortgaged premises, in cases in which
the mortgagor shall be personally liable for the debt secured by such
mortgage; and if the mortgage debt be secured by the convenant or
obligation of any person other than the mortgagor, the plaintiff may
make such person a party to the action, and the court may adjudge
payment of the residue of such debt remaining unsatisfied after a sale
of the mortgaged premises against such other person, and may enforce
such judgment as in other cases.

§ 137. Allegations — when deemed true or denied.] Every
material allegation of the complaint, not controverted by the answer,
as prescribed in section 118, and every material allegation of new
matter in the answer, constituting a counter-claim, not controverted
by the reply, as prescribed in section 122, shall, for purposes of
the action be taken as true. But the allegation of new matter in the
answer, not relating to a counter-claim, or new matter in a reply, is
to be deemed controverted by the adverse party upon a direct denial
or avoidance, as the case may require.

MI8TAKB8 IN PLEADING, AND AM ENDMINTS.

§ 138. Material and misleading.] No variance between the
allegation in a pleading and the proof shall be deemed material, unless
it have actually so misled the adverse party to his prejudice, in main-
taining his action of defense, upon the merits. Whenever it shall be
alleged that a party has been misled, the fact shall be proved to the
eati&faction of the court, and in what respect he has been misled ; and
thereupon the court may order the pleading to be amended, upon such
terms as shall be just.

§ 139. If not material.] Where the variance is not material, as
provided in the last section, the court may direct the fact to be found

502 Civil Actions. Code of Civil Procedure.

according to tlie evidepce, or may order an immediate amendment ♦
without costs. ' \ . .

% 140. Failure to prove variance*] Where, however, the allega-
tion of the cause of action or defense to which the proof is directed
is unproved, not in some particular or particulars only, but in its entire
scope and meaning, it shall not be deemed a case of variance, within
the last two sections, but a failure of proof.

§ 141. Amendments— WHEN and how.] Any pleading may be once
amended by the party of course, without costs, and without prejudice
to the proceedings already had, and at any time within twenty days
after it is served, or at any time before the period for answering it
expires; or it can be so amended at any time within twenty days after
the service of the answer or demurrer to such pleading, unless it be
made to appear to the court that it was done for the purpose of delay,
and the plaintiff or defendant will thereby lose the benefit of a term
for which the cause is or may be noticed ; and if it appear to the court
that such amendment was made for such purpose, the same may be
stricken out, and such terms imposed as to the court may seem just.
In such case a copy of the amended pleading must be served on the
adverse party. After the decision of a demurrer, either at a general
or special term, the court may, in its. discretion, if it appear that the i

demurrer was interposed in good faith, allow the party to plead over |

such terms as may be just, if the demurrer be allowed for the cause
mentioned in the fifth subdivision of section 11^, the court may, in its > \

discretion, and upon such terms as may be just, order the action to be
divided into as many actions as may be necessary to the proper deter-
mination of the causes of action therein mentioned.

§ 142. Court may am;end— terms.] The court may, before or after
judgment, in furtherance of justice, and such terms as may be proper,
amend any pleading, process, or proceeding, by adding, or strikmg out
the name oi any party ; or by co jTecting a mistake in the name of a
party, or a mistake in any other respect; or by inserting other allega-
tions material to the case; or, when the amendment does not change
substantially the claim or defense, by conforming the pleading or pro-
ceeding to the facts proved. <
, § 143. Pleading aexer time.] The court niay likewise, in its dis-
cretion, and upon such tqrnjs as may be just, allow an answer or reply
to be made, or other act to be done, after the time limited by tnis
code, or, by an order, enlarge such time; and may also, in its dis- ,
cretion, and upon such terms as may be just, at any time within one
year after notice thereof, relieve a party from judgment, order, or
other proceeding, taken against him through his mistake, inadvertence,
surprise, or excusable neglect, and may supply an omission in any pro-
ceeding; and whenever any proceeding taken by a party fails to
conform in any respect to the provisions of this code, the court may,
in like manner and upon like terms, permit an amendment of -such
proceedings so as to make it coraformable thereto.

§ 144. IInknown name.] When the plaintiff shall be ignorant of
the name of a defendant, such defendant may be designated in any
pleading or proceeding, by any name; and when his true name shall
be discovered, the pleading or proceeding may be amended accord-
ingly.

Code of Civil Procedure. Civil Actioks. 503

§ 145. Trivial defbots BiSBsaARDBD.] The court shall, in every
stage of action, disregard an error or defect in the pleadings, or pro-
ceedings which shall not afifect the substantial rights of the adverse
party; and no judgment shall be reversed or aflfected by reason of
such error or defect.

§ 146. Supplemental PLEADING.] The plaintiff and defendant, respect-
tiyely, may be allowed, on motion, to make a supplemental complaint,
answer, or reply, alleging facts material to the case, occurring after

j the former complain^ answer, or reply, or of which the party was

! ignorant when his former pleading was made. *

!
I

CHAPTER XI.

OP THE PROVISIONAL REMEDIES IN CIVIL ACriONB.

§ 147. Classified.] The provisional remedies in civil actions are:

1. Arrest and bail.

2. Claim and delivery of personal property.

3. Injunction.

4. Attachment.

5. Receivers.

6. Deposit in court.

Abtiolb I. — Abbest and Bail.

§ 148. Abbest limited— contempt.] No person shall be arrested in
a civil action, except as prescribed by this code; but this provision
shall not apply to proceedings for contempt.

§ 149. Cases when dependant abrested.] The defendant may be
arrested, as hereinafter prescribed, in the following cases:

1. In an action for the recovery of damages, on a cause of action
not arising out of contract, where the defendant is not a resident of
the territory, or is about to remove therefrom,* or where the action is
for an injury to person or character, or for injuring, or for wrongfully
taking, detaining, or converting property.

2. In an action for a fine or penalty, or on a promise to marry, or
for money received, or for property embezzled or fraudulently mis-
applied, by a public oflBcer, or by an attorney, solicitor, or counselor,
or by an officer or agent of a corporation or banking association, in
the course of his employment as such, or by any factor, agent, broker,
or other person in a fiduciary capacity, or for any misconduct or
neglect in office, or in a professional employment.

o. In an action to recover the possession of personal property
unjustly detained, where the jproperty or any part thereof has been
concealed, removed, or disposed of, so that it cannot be found or taken
by the sheriff, and with the intent that it should not be found or taken,
or .with the intent to deprive the plaintiff of the benefit thereof.

4. When the defendant has been guilty of a fraud in contracting
the debt, or incurring the obligation for which the action is brought,
or in concealing or disposing of the property for the taking, detention.

■ ' *

504 Ci7?iii Actions. Code of Givil Procedure.

or conversion of which the a\?ttbn is "brought, ot when the action is
brought toi recover damages fot fraud or deceit.

5. When the defendant has removed or disposed of his property, or
is about to do so, with the intent to defraud his creditors. '

But no female shall be arrested in any action, except for a willful
injury to person, character, or property.

§ 150. WHERE ORDER OBTAINED.] Ah Order for the arrest of the
defendant must be obtained from a judge of the court in which the
action is brought.

§ 151. " Basis of order.] The order may be made whenever it
appears to the jud^e, by the affidavit of the plaintiflF, or some other
person, that a sufficient cause of action exists, and that the case is one
of those mentioned in section 149. The affidavit must be either
positive or upon information and belief; and when upon information
and belief, it must state the facts upon which the information and
belief are founded. . If an order of arrest be made, the affidavit must
be filed in the office of the clerk of the court.

§ 152, Undertaking from plaintiff.] Before making the order,
the judge shall require a written undertaking on the part of the plain-
tiff, with or without sureties, to the effect that if the defendant recover
judgment, the plaintiff will pay all costs that may be awarded to the
defendant, and all damages which he may sustain by* reason of the
arrest, not exceeding the sum specified in the undertaking, which shall
be at least one hundred dollars. If the undertaking be executed by
the plaintiff without sureties,, he shall annex thereto an affidavit that
he is a resident and householder or freeholder within the t>erritory.
and worth double the sum specified in the undertaking, over all his
debts and liabilities, and exclusive of all property exempt from execu-
tion by the laws of this temtory.

§ 153. When ordbb issued and served.] The order may be made
to accompany the summons, or at any time afterwards before judgment.
It shall require the sheriff of the county where the defendant may be
found, forthwith to arrest him and hold him to bail in a specified sum,
and return the order, at a place and time therein mentioned, to the
plaintiff or attorney, by whom it shall be subscribed or indorsed. But
said order of arrest shall be of no avail, and shall be vacated or set
aside on motion, unless the same is served upon the defendant, as
provided by law, before the docketing of any judgment in the action;
and the defendant shall have twenty days, after the service of the order
of arrest, in which to answer the complaint in the action, and to. move
to vacate the order of arrest, or to reduce the aitaount of bail.

§ 154. Papers to defendant.] The affidavit and order of arrest
shall be delivered to the sheriff, who upon arresting the defendant,
shall deliver to him a copy thereof.

§ 155. Sheriff's duties- bail.] The sheriff must execute the order
by arresting the defendant, and keeping him in custody until dis-
charged by Taw, and may call the power of the county to his aid in the
execution of the arrest, as in case of process. The defendant may give
bail whenever arrested, at any hour of the day or night, and must
have reasonable opportunity to procure it, before being committed to
prison.

Code of Civil Procedure. Civil Actions. ;^5

§ 156. Discharge.] The defendant, at anytime before execution,
shall be discharged from the arrest, either upon giving bail, or upon
depositing the amount mentioned in the order of arrest, as provided
in this article.

§ 157. Bail how given.] The defendant may give bail by causing
a written undertaking, in the sum specified in the order of arrest, to
be executed by two or more sufBicient bail, stating their places of
residence and occupations, to the effect that the defendant shall at all
times render himself answerable to the process of the court during the
tendency of the action, and to such as may be issued to enforce the
; udgment thereon, or if he be arrested for the cause mentioned in the
;hird subdivision of section 149, an undertaking to the same effect as
that provided in section 181.

§ 158: SuBRENDER BY BAIL.] At anytime before a failure to comply
with the undertaking, the bail may surrender the defendant in their
exoneration, or he may surrender himself to the sheriff of the county
where he was arrested, in the following manner:

1. A certified copy of the undertaking of the bail shall be delivered
to the sheriff, who shall detain the defendant in his custody thereon,
as upon an order of arrest, and shall by a certificate in writing
acknowledge the surrender.

2. Upon the production of a copy of the undertakinff and sherift*'s
certificate, a judge of the court may, upon a notice to ttie plaintiff of
eight days, with a copy of the certificate, order that .the bail be exon-
erated; and on filing the order and the papers used on said application,
they shall be exonerated accordingly. But this section shall not apply
to an arrest for cause mentioned in subdivision three of section 149, ^o
as to discharge the bail from an undertaking given to the effect pro-
vided by section 181.

§ 159. Bail may arrest.] For the purpose of surrendering the
deiendant, the bail, at any time or place, before they are finally
charged, may themselves arrest him, or by a written authority, indorsed
on a certified copy of the undertaking, may empower any person of
suitable age and discretion to do so.

§ 160. Action against bail.] In case of failure to comply with the
undertaking, the bail may be proceeded against by action only.

§ 161. Bail exonerated.] The bail may be exonerated either by
the death of the defendant, or his imprisonment in a state or terri-
torial prison, or by his legal discharge from the obligation to render
himself amenable to the process, or by his surrender to the sheriff of
the county where he was arrested, in executicm thereof, within twenty
days after the commencement of the action against the bail, or within
such further time as may be granted by the court.

§ 162. Plaintiff may except to bail.] Within the time limited for
that purpose, the sheriff shall deliver the order of arrest to the plaintiff,
or attorney by whom it is subscribed, with his return indorsed, and a
certified copy of the undertaking of the bail. The plaintiff, within ten
days thereafter, may serve upon the sheriff a notice that he does not
accept the bail, or he shall be deemed to have accepted it, and the
shenff shall be exonerated from liability.

§ 168. Justification.] On the receipt of such notice, the sheriff or
defendant may, within ten days thereafter, give to the plaintiff or attor-

606 Civil Actions. Code of Civil Procedure.

ney by whom the order of arrest is subscribed, notice of the justifica-
tion of the same or other bail, specifving the place of residence
and occupation of the latter, before a judge of the court, at a specified
time and place; the time to be not less than five nor more than ten
days thereafter. In case other bail be given, there shall be a new
undertaking, in the form prescribed in section 157.

§ 164. Requisites q? bail.] The qualifications of bail must be as
follows:

1. Each of them must be a resident and householder or freeholder
within the territory.

2. They must each be worth the amount specified in the order of
arrest, exclusive of property exempt from execution; but the judge, or
a justice of the peace, on justification, may allow more than two bail
to justify severally in amounts less than that expressed in the order,
if the whole justification be equivalent to that of two suflBcient
bail.

§ 165. Examination of bail.] For the purpose of justification, each
of the bail shall attend before the judge, or a justice of the peace, at
the time and place mentioned in the notice, and may be examined on
oath on the part of the plaintiff' touching his sufficiency, in such man-
ner as the judge or justice of the peace, in his discretion, may think
proper. The examination shall be reduced to writing, and subscribed
by the bail, if required by the plaintiff.

§ 166. Allowance of.] If the judge or justice of the peace, find
the bail sufficient, he shall annex the examination to the undertaking,
indorse his allowance thereon, and cause them to be filed with the
clerk; and the sheriff shall thereupon be exonerated from liability.

§ 167. Deposit — discharge.] The defendant may, at the time of
his arrest, instead of giving bail, deposit with the sheriff the amount
mentioned in the order. The sheriff shall thereupon give the defend-
ajat a certificate of the deposit, and the defendant shall be discharged
out of custody.

§168. Payment into court.] The sheriff shall, within four days
after the deposit, pay the same into court, and shall take from the
officer receiving the same two certificates of such payment, the one of
which he shall deliver to the plaintiff and the other to the defendant
or his attorney. For any default in making such payment the same
proceedings may be had on the official bond of the sheriff" to collect
the sum deposited as in other cases of delinquency.

§ 169. Kefunded on approvep bail.] It money be dei)osited, as
provided in the last two-sections, bail may be given and justified upon
notice, as prescribed in section 163, any time before iudgnaent; there-
upon the judge before whom the justification is had, shall direct in the
order of allowance, that the money deposited be refunded by the
sheriff to defendant, and it shall be refunded accordingly.

§ 170. Applied on judgment.] Where money shall have been so
deposited, if it remain on deposit at the time of an order or judgment
for the payment of money to the plaintiff, the clerk shall, under the
direction of the coui*t, apply the same in satisfaction thereof, and after
satisfying the judgment, shall refund the surplus, if any, to the defend-
ant. If the judgment be in favor of the defendant, the clerk shall
refund to him the whole sum deposited and remaining unpaid.

* •

Code of Civil Procedure. Civil AcTicms. fi07

§ 171. Shebifv's liabiutt.] If, after beiug arrested, when there is
a jail to which the defendant may be committed, the defendant escape
or be rescaed, or bail be not giyen or justified, or a deposit be not.
made instead therepf, the sheriff shall himself be liable as bail. But.
he may discharge himself from such liability, by the giving and.
justification of bail, as provided in sections 163, 164, 165, and 166, a^
any time before process su;ainst the person of the defendant, to enforce
an order or judgment in the action.

§ 172. JuBGMXNT against shi&iff.] If a judgment be recovered
against the shenff, upon his liability as bail, and an execution thereon
be returned unsatisfied, in^ whole or in part, the same proceedings may
be had on the official bond of the sheriS^ to collect, the deficiency, as
in other cases of delinquency.

§ 173. Bail uable to sheriff.] The bail taken upon the arrest
shall, unless tixey justify, or other bail be given or justified, be liable
to the sheriff by action for damages which he may sustain by reason :
of such omission.

§ 174. Motion to vacate abbest.] A defendant arrested may, at
any time before judgment, apply, on motion, to vacate the order of
arrest, or to reduce the amount of bail.

.§175. HsABD UPON AFFIDAVIT.] If the motiou be made upon
affidavits on. the part of the defendant^ but not otherwise, the plaintiff
may oppose the same by affidavits, or other proofe, in addition to thoae
on whicn the order of arrest was made.

Abtiole II. — Claim and Dslivbbt of Pbbsonal Pbopbrty.

§ 176. When may claim.] The plaintiff, in an action to recover the
possession of personal property, may, at the time of issuing the sum-
mons, or at any time before answer, claim the immediate delivery of
such property, as provided in this article.

g 177. Plaintiff's affidavit.] Where a delivery is claimed, an
affidavit must be made by the plaintifl^ or by some one in his behalf,
stating:

1. Tnat the plaintiff is the owner of the property claimed^ particu:
laril jr describing it, or is lawfullv entitled to the possession thereof,
by virtue of a special property tnerein, the facts in respect to which
shall be set fortn.

2. That the property is wrongfully detained by the defendant.

3. The alleged cause of the detention thereof, according to his best
knowledge, information, and belief

4. That the same has not been taken for a tax, assessment, or fin6.
pursuant to a statute; or seized under an execution or attachment
against the property of the plaintiff? or, if so seized, that it is, by.
stetute, exempt from such seizure ; and, ■ *

5. The actual value of the property.

§ 178. Requisition to shbbiff.I The plaintiff may, thereupon, by
an indorsement in writing upon the affidavit, require the sheriff of the
county where the property claimed may be, to take the same from the
defendant and deliver it to the plaintiff.

§ 179. SE(5nBiTy by plaintiff.] Ui)on the receipt of the affidavit
and notice, with a written undertaking executed by one or more

506 Civil Actions. Code of Civil Procedure.

sufBoient sureties, approved by the sheriflF, to the effect that they are
bound in double the value of the property, as stated iii the affidavit for
the prosecution of the action, for tne return of the property to the
defendant, if return thereof be adjudged, and for the payment to him
of such sum as may, for any cause, be recovered against the plaintiff,
the sheriff shall forthwith take the property described in the affidavit,
if it be in the possession of the defendant or his agent, and retain it in
his custody. He shall also, without delay, serve on the defendant a
copv of the affidavit, notice, and undertaking, by delivering the same
to him personally, if he can be found, or to his agent, from whose
possession the property is taken ; or if neither can be found, by leaving
them at the usual place of abode of either, with some person of suitable
age and discretion.

§ 180. ExofiPTTONs BY iTBFENDANT.J The defendant mav, within
three days after the service of a copy of the affidavit and unaertaking,
give notice to the sheriff that he excepts to the sufficiency of the
sureties. If he fail to do so, he shall be deemed to have waived all
objection to them. When the defendant excepts, the sureties shall
justify on notice in like manner as upon bail on arrest. And the
sheriff shall be responsible for the sufficiency of the sureties, until the
objection to them is either waived as above provided, or until they
shall justify, or neAV sureties shall be substituted and justify. If the
defendant except to the sureties, he cannot reclaim the property, as
provided in the next section.

§ 181. Re-delivery to defendant.] At any time before the delivery
of the property to the plaintiff, the defendant may, if he da not except
to the sureties of the plaintiff, require the return thereof, upon giving
to the sheriff a written undertaking, executed by two or more sufficient
sureties, to the effect that they are bound in double the value of the
property, as stated in the affidavit of the plaintiff, for the delivery
thereof to the plaintiff, if such delivery be adjudged, and for the
payment to him of such sum as may, for any cause, be recovered
a^inst the defendant. If a return of the property be not so required,
within three days after the taking and service of notice to the
defendant, it shall be delivered to tne plaintiff, except as provided in
section 186.

§ 182. ' Justification.] The defendant's sureties, upon a notice to
the plaintiff of not less than two nor more than six days, shall justify
before a judge or justice of the peace, in the same manner as upon bail
on arrest; upon such justification the sheriff shall deliver the property
to the defendant. The sheriff shall be responsible for the derenaant*s
sureties, until they justify, or until justification is completed or
expressly waived, aiid may retain the property until that time; but if
they, or others in their place, fail to justify at the time and place
appointed, he shall deliver the property to the plaintiff,

§ 183. Same.] The qualifications of sureties, and their justification,
shall be as are prescribed by sections 164 and 165, in respect to bail
upon an order of arrest.

§ 184. Concealed property.] If the property, or any part thereof,
be concealed in a building or inclosure, the sheriff shall publicly
demand its delivery. If it be not delivered, he shall cause the build-
ing or inclosure to be broken open, and take the property into his

Code of Civil Procedure. Civil Actions, 500

pofisession; and, if necessary, he may call to his aid the power of his
county.

g 185. EsBPiNa PEOPERXT.] When the sheriff shall have taken
property, as in this article provided, he shall keep it in a secure place,
and deliver it to the party entitled thereto, upon receiving his lawful
fees for taking, and his necessary expenses lor keeping, the same.

g 186. Claim by third persons.] K the property taken be claimed
by any other person tihan the defendant or his a^ent, and such person
shall make amdavit of his title thereto and nght to the possession
thereof, stating the grounds of such right and title^ and serve the.
same upon the sherin, the sheriff shall not be bound to keep the
property, or deliver it to the plaintiff, unless the plaintiff, on demand
of him or his agent, shall indemnify the sheriff against such claimt
by an undertaking,. executed by two sufficient sureties, accompanied
by their affidavits, that they are each worth double the value of the
property as specified in the affidavit of the plaintiff, exclusive of
property exempt frpm execution, and freeholders or householders of
Hie county* And no claim to such property, biy anj other petson
than the defendant or his agent, shall be valid against the sherifl^
unless made as aforesaid; an^ notwithstanding sucn clairut when so
made, he may retain the property a reasonable time to demand such
indemnity.

§ 187. Papers piled with olekk.] The sheriff shall file the notice
and affidavit, with his proceedings thereon, with the clerk of the court
in which the action is pending, within twenty days after taking the
property mentiojaed therein.

Article III.— Injunotiow.

§ 188. Injunction by order.] The writ of injunction, as a provis*
ional remedy, is abolished^ .and ati injunction by order is substituted
therefor. The order may be made by the court in which the action is
brought, or . by a judge thereof in the cases provided in the next
section, and, when mfl^ae by a judge, may be enforced as the order of
the court. .

§ 189. Oases when granted.] Ati injunction may be grapted in
either of the following cases :

1. It shall appear by the complaint that the plaintiff is entitled to
the relief demanded, and such relief, or any part thereof, consists in
restraining the commission or continuance of some act the commission
or continuance of which, during the litigation, would produce injury
to the plaintiff; or,

2. when, during the litiA^ation, it shall appear that the defendant is
doing, or threatens, or is about to do, or procuring or suffering some
act to be done in violation of the plainti£rs rights respecting the sub-
ject of the action, and tending to render the judgment inefleclual, a
temporary injunction may be granted to restrain such act.

3. And when, during the pendency of an action, it shall appear by
affidavit that the defendant threatens, or is about to remove or dispose
of his property, with intent to defraud his creditors, a temporary
injunction may be granted to restrain such removal or disposition.

.510 Civil Actions. Cod^ of Ciml Procedure.

§ 190. Time — pafbbs sbbvxd.] The injunction may be granted at
the time of commencing the action, or at any time afterwards, before
judgment, upon its ajipearing satisfactory to the court or judge, by the
affidavit of the plaintiflF, or of any other person, that sufficient grounds
exist therefor. A copy of the affidavit must be served with the
injunction.

. § 191. AWER ANSWER.] An injunction shall not be allowed after
the defendant shall have answered, unless upon notice, or upon an
order to show cause; but in such case the defendant may be restrained
until the decision of the court or judge granting or refusing the
injunction.

§192. Security— DAMAGES.] Where no provision is made by
st^uteasto security upon an injunction, the court or judge shall
rbquire a written undertaking; on the part of the plaintiff, with or
^thout sureties, to the effect that the plaintiff will pay to the party
enjoined, such damages, not exceeding an amount to be specified, as he
may sustaiij . by reason of the injunction, if the court shall finally
decide that the plaintiff was not entitled thereto. The damages may
be ascertained by a reference, or otherwise, as the court shall direct..

§ 198. Order to show cause.] If the court or judge deem it proper
that the defendant, or any of the several defendants, should be heard
before granting the injunction, an order may be made requiring catise
to be shown, at a specified time and place, why the injunction should
not be granted; and the defendant may, in the meantime, be
restrained.

§ 194. Against corporation.] An injunction to suspend the
general and ordinary business of a corporation must not be panted
without due notice of the application tnerefor, to the proper officer of
the corporation, except when the territory is a party to the pro-
ceeding.

§ 195. Application to vacate.] If the injunction be granted by a
judge of the court, without notice, the defendant at any time before
the trial, may apply, upon notice, to a judge of thie court in which the
action is brought, to vacate or modify the same. The application
may be made upon the complaint, and the affidavits on which the
injunction was granted, or upon affidavits on the part of the defend-
ant, with or witnout the answer.

§ 196. Counter affidavits.! If the application be made upon
affidavits on the part of the defendant, but not otherwise, the plaintiff
may oppose the same by affidavit or other proofs, in addition to those
OB which the injunction was granted.

Article IV. — Attaohhent.

§ 197. Propeett of non-rssidents, &o., mat be attached.] In an
action arising on contract for the recovery of money only; or, in an
action for the wrongful conversion of personal property, against a
corporation created by or under the laws of any other territory,
state, government, or country; or, against a defendant who is not a
resident of this territory; or against a defendant who has absconded
or concealed himself; or whenever any person or corporation is about
to remove any of his or its property from this territory; or, has as-

Code of Civil Procedure. Civil Actions. 51 1

.signed, disposed of, secreted, or is about to assign, dispose of, or secrete
any of his or its property with intent to defraud creditors, as herein-
aflJer mentioned.- The plaintiff, at the time of issuing the summons,
or any time afterwards, may have the property of such defendant
or corporation attached, in the manner hereinafter prescribed, as
a security for the satisfaction of such judgment as the plaintiff may
recover; and for the purposes of this section an action shall be deemed
commenced when the summons is issued; Provided^ however, That
personal service of such summons shall be made, or publication
thereof commenced within thirty days.

§ 198. Warrant issued by clerk — seal.] A warrant of attach-
ment must be obtained from the clerk of the court in which the action
is brought; and such warrant of attachment must be attested in the
name of the presiding judge and must be sealed with the seal of the
court.

% 199. Affidavit — requisites.] The warrant may issue upon
affidavit, stating:

1. That a cause of action exists agaipst such defendant, specifying
the amount of the claim and the grounds thereof; and,

2. That the defendant is either a foreign corporation, or not a
resident of this territory, or has departed therefrom witn intent to
defraud his creditors, or to avoid the service of a summons, or keeps'
himself concealed therein with the like intent; or, tSj^^^a^ ^%\

3. That such corporation or person has removed, or is about to
remove, any of his or its propei-ty from the territory with intent to
defraud his or its creditors; or,

4. Has assigned, disposed of, or secreted, or is about to assign,
dispose of, or secrete, any of his or its property with the like intent,
whether such defendant be a resident of this territory or not.

§ 200. Plaintiff's undertaking.] Before issuing the warrg,nt, the
clerk must require a written undertaking on the part of the plaintiff
with sufficient surety, to the effect that if the defendant recovei^judg-
ment, or the attachment be set aside by the order of the court, the
plaintiff will pay all costs that may be awarded to the defendant, and
all damages which he may sustain by reason of the attachment, not
exceeding the sum named in the undertaking, which must be at least
the amount of the claim specified in the affidavit, and in no case less
than two hundred and fifty dollars.

§ 201. Requisites of warrant.] The warrant must be directed to
the sheriff of any county in which property of such defendant
may be, and must require him to attach and safely keep all the prop-
erty of such defendant within his county, not exempt from execution,
or so. much thereof as may he sufficient to satisfy the plaintiff's demand,
the amount of which must be stated in conformity with the com-
plaint unless the defendant give him security by the undertaking
of at least two sufficient sureties, in an amount sufficient to satisfy
such demand, besides costs, or in an amount equal to the value of the
. property which has been, oris about to be, attached; in which case,

f. to take such undertaking. Several writs may be issued at the same

^ time to the sheriffs of different counties.

^ § 202. Execution of warrant.] The sheriff to whom such warrant

) ' of attachment is directed and delivered, must immediately attach all

S?"

^

c

E

512 Civil Actions. Code of Civil Procedure,

the real property of such debtor and all his personal estate, or so much
thereof as may be sufficient to satisfy the plaintiff's demand, costs,
and expenses, and including debts, credits, money, £|,nd bank notes,
excepi property exempt from execution; ana must take into his custody
all DOOKS oT accounte, vouchers, evidences of indebtedness, and all
papers relating to the property, debts, credits, and effects of such
debtor, together with all evidences of his title to real property. .

§ 203. Inventory — perishable property.] Immediately upon
making such seizure he shall make a just and true inventory of all the
roperty so seized, and of the books, vouchers, and papers, taken into
is custody, stating therein the estimated value of the iseveral articles
and kinds of personal property, enumerating such of them as are
perishable, ana giving a description of the real property so attached,
which inventory must be signed by the sherifl^ attached to and made
a part of the return on the warrant of attachment. And any subse-
quent execution pf the warrant of attachment upon other property of
the debtor, must be made and an inventory thereof made and returned
in like manner.

§ 204. Custody and oolleoI'ion of property.] The sheriff must
keep the property seized by him, or the proceeds of such as shall have
been sold, to answer any judgment which may be obtained in such
action, and must, subject to the direction of the court pr judge, collect
and receive ii^to his possession all debts, credits, and effects of . the
debtor. The sheriff may also take such legal proceedings, either in
his own name or in the name of such debtor, as may be necessary for
that purpose, and discontinue the same at such times and on such
terms as the court or judge may direct.

§ 205. Perishable — sold under order.] If iany of the property so
seized shall be perishable, the sheriff must sell the same at public
auction, under an order of the court or a judge thereof, and must
retain m his hands the proceeds ot such sale, after deauctlng his
expenses, which proceeds must be paid into court and there abide its
further order.

§ 206. Claimed property — sheriff's jury.] If any property so
seized be claimed by or on behalf of any person other than such .
defendant, the sheriff may sumnaon a jury and try the validity of such
claim in the same manner with Uke effect as in case of seizure
under execution.

§ 207. Stocks and corporate interests.] The rights or shares
which such defendant may have in the stock of any association or
corporation, together with the interest and profits thereon, and all
other property m this territory of such defendant, shall be liable to
be attached and levied upon, and sold to satisfy the judgment and
execution.

§ 208. Property incapable of delivery.] The execution of the
attachment upon any such rights, shares, or any debts, or other prop-
erty, incapable of manual delivery to the sheriff, must be made by
leaving a certified copy of the warrant of attachment with the presi-
dent or other head of the association or corporation, or the secretary,
cashier, or managing agent thereof, or with the debtor or individual
holding or occupying such property, with a notice showing the prop-
erty levied on, or, if the property attached be unoccupied real property,

Code of Civil Procedure. Civil Aotiqn8. 513

by putting a certified copy of such warrant upon the outer door of the
court house, or other buildinff in which the district court shall be held
w^ithin the county or judicial subdivision in which such unoccupied
real property shall be situated.

§ 209. Cbrtipicatb of defendant's interest.] Whenever the
sheriff shall, with a warrant of attachment, or execution against the
defendant, apply to such officer, debtor, or individual, for the purpose
of attachinff or levying upon such property, such officer, debtor, or
individual shall furnish him with a certificate under his hand, desig-
nating the number of rights or shares of the defendant in the stock of
such association or corporation, with any dividend or any incumbrance
thereon, or the amount and description of the property held by such
association, corporation, or indiviaual, for the benefit of or debt owing
to the defendant. If such officer, debtor, or individual refuse to do so,
or if it be made to appear by affidavit or otherwise to the satisfaction
of the court or Judge thereof, that there is reason to suspect that any
certificate given by him is untrue, or that it fails to fully set forth the
facts required to be shown thereby, he may be required by the court
or judge to attend before him, and be examined on oath concerning
the same, and obedience to such order may be enforced by attachment.

§ 210. Judgment — how satisfied.] In case judgment be entered
for the plaintiff in such action, the sheriff shall satisfy the same out
of the property attached by him, if it shall be sufficient for that
purpose :

1. By paying over to such plaintiff the proceeds of all sales of
perishable property, and of any vessel, or share or interest in any ves-
sel sold by him, or of any debts or credits collected by him, or so much
as shall be necessary to satisfy such judgment.

2. If any balance remain due, and an execution shall have been
issued on such judgment, he shall proceed to sell, under such execu-
tion, so much of the attached property, real or personal, except as
provided in subdivision four of this section, as may be necessary to
satisfy the balance, if enough for that purpose shall remain in his
hands; and in case of the sale of any rights or shares in the stock of
a corporation or association, the sheriff shall execute to the purchaser
a certificate of sale thereof, and the purchaser shall thereupon have
^W the rights and privileges in respect thereto which were had by such
defendant.

3. If any of the attached property belonging to the defendant, shall
have passed out of the hands of tjie sheriff without having been sold
or converted into money, such sheriff shall repossess himself of the
same, and for that purpose shall ,have all tne authority which he
had to seize the same under the attachment; and any person who shall
willfully conceal or withhold such property from the sheriff, shall be
liable to double damages, at the suit oi the party injured.

4. Until the judgment against the defendant shall be paid, the
sheriff mav proceed to collect the notes and other evidences of debts
that may have been seized or attached under the warrant of attach-
ment, and to prosecute any bond he may have taken in the course
of such proceedings and apply the proceeds thereof to the payment of
the judgment. At the expiration of six months from the docketing
of the judgment, the court shall have power upon the petition of

88

514 Civil AcrriONS. Code of Civil Procedure.

^ the plaintiff, accompanied by an affidavit setting forth fully all the
proceedings which have been had by the sheriff since the service of
the attachment, the property attached, and the disposition thereof,
and also the affidavit of the sheriff that he has used diligence and
endeavored to collect evidences of debts in his hands so attached, and
that there remains uncollected of the same any part or portion thereof
to order the sheriff to sell the same, upon such terms and in siich man-
ner as shall be deemed proper. Notice of such application shall be
given to the defendant or his attornej'^, if the defendant shall have
appeared in the action. In case the summons has not been personally
served on the defendant, the court shall make such rule or order, as to
the service of the notice and the time of service, as shall be deemed

i'ust. When the judgment and all costs of the proceedings shall have
)een paid, the sheriff, upon reasonable demand, shall deliver over to
the defendant the residue of the attached property, or the proceeds
thereof

§211. Plaintiff MAY PROSECUTE ACTIONS — undertaking.] The actions
herein authorized to be brought by the sheriff may be prosecuted by
the plaintiff or under his direction, upon the delivery by him to the
sheriff* of an undertaking executed by two sufficient sureties, to the effect
that the plaintiff will indemnify the sheriff from all damages, costs, and
expenses on account thereof, not exceeding two hundred and fifty dol-
lars in any one action. Such sureties shall, in all cases, when required
' by the sheriff, justify by making an affidavit that each is a house-
holder, and worth double the amount of the penalty of the bond, over
and above all demands and liabilities, and exclusive of property
exempt from execution.

§ 212. Delivery to defendant.] If the foreign corporation, or
absent, or absconding, or concealed defendant, recover judgment
against the plaintiff' in such action, any bond taken by the sheriff,
except such as are mentioned in the last section, all the proceeds of sales
and moneys collected by him, and all the property attached remaining
in his hands shall be delivered by him to the defendant, or his agen^
on request, and the warrant shall be discharged and the property
released therefrom.

§ 213. Defendant may apply for discharge.] Whenever the
defendant shall have appeared in such action, he may apply to the
clerk who issued the attachment, or to the court, for the discharge of
the same; and, upon the discharge, all the proceeds of the sales and
moneys collected by him, and all property attached remaining in his
hands, must be delivered or paid by him to the defendant, or his agent,
and released from the attachment. And when there is more ttian one
defendant, and several property of either of the defendants has been
seized by virtue of the warrant of attachment, the defendant whose
several property has been seized, may apply to the clerk who issued
the warrant, or the court, for discharge of the attachment.

§ 214. Undertaking fob I)Isch:argb — plaintiff's exceptions.] Upon
such application the defendant must deliver to the court or clerk, an
undertaking executed by at least two sureties, who are residents and
freeholders or householaers in this territory, approved by such court
or clerk to the effect that such sureties will, on demand, pay to the
plaintiff' the amount of judgment that may be recovered against the

^

Code of Civil Procedure. Civil Aotiokb. 515

defendant in the action, not exceeding the amn specified in the under-
taking, which must he at least double the amount claimed by the
plaintiff in his complaint. If it appear by affidavit that the prop-,
erty attached is worth less than the am.ount claimed by the plaintiff,
the court, or the clerk issuing the attachment, may order the same to
be appraised, and the amount of the undertaking shall then be double
the amount so apprs^^ised. And the plaintiff may within three days
after receiving written notice of the filing of such undertaking, give
notice to the sheriff that he excepts to the sufficiency of the sure-
ties. If he fail so to de, he shall be deemed to have waived all
objection to them. When the plaintiff' excepts, the sureties must
justify, on notice, in like manner as upon bail on arrest. And the
sheriff shall be responsible for the sufficiency of the sureties, and may 'j

re^in possession of the property attached, and the proceeds thereof
in his hands, until the objection to them be either waived^ as above
provided, or until they justify, or new sureties are substituted and
justify.

§ 215. LiENOB MAT MOVE DiSGHARGB.] lu all ca^s the defendant or
any person who has acquired a lien upon or interest in the defendant's
property after it was attached, may move to discharge the attachment
as in the case of other provisional remedies, and when there is more
than one defendant, and several property of. either of the defendants
has been seized by virtue of the warrant of attachment, such defend-
ant may deliver to the court or clerk an undertakinjg in accordance
with the provisions of the preceding section, to the effect that he will,
on demand, pay to the plaintiff the amount of jud^meYit that may be
recovered against such defendant; and all the provisions of the preced-
ing section relating to such undertaking apply thereto. Ok,? % t^- •^\.'^ ^

g 216. Partnership property— undertaking.] If a warrant of
attachment be levied upon the interest of one or more partners, in
personal property of a partnership, the other partners, or any of them,
may, at any time before judgment, apply to the court from which the
warrant of attachment issued, or a judge thereof, upon affidavit stat-
ing such fact for an order to discharge the attachment as to the part-
nership property. The applicant must give an undertaking with at
least two sufficient sureties to the effect that,, if judgment shall be
rendered in the action in favor <>f the plaintiff, they will pay to
the sheriff on demand the amount of defendant's interest in such
artnership property, the amount of such interest to be determined
y reference or otherwise, as the court may direct. The amount of
such undertaking must be fixed bv the court or judge thereof, and
must not be less than the value of the interest of the defendant in
the goods, chattels, credits, and effects of the partnership; and for the

Eurpose of fixing the amount of the undertaking, the court or judge may
ear affidavits or oral testimony, respecting the value of the defendant's
interest in the attached property. If the plaintiff except to the suffi-
ciency of the sureties they must justify, on noticei in like manner as
provided by section 214.

§ 217. Return by oefiobr.] When the warrant shall be fully
executed or discharged, the sheriff must return the sg^me with his pro-
ceedings thereon, to the court in which the action was brought.

I

616 Civil Actions. Code of Civil Procedure.

% 218. Action before claim due.] 1. When a debtor has sold, con-
veyed, or otherwise disposed of his property with the fraudulent ititent
to cheat or defraud his creditors, or to hinder or delay them in the
collection of their debts ; or, iJL • J i oi . . \ % v

2. Is about to make sale, conveyance, or disposition of his property,
with such fraudulent intent; or,

3. Is about to remove his property, or a material part thereof, with
the intent, or to the effect, of cheating or defrauding his creditors, or
of hindering and delaying them in the collection of their debts.

A creditor may bring an action on a claim before it is due, and have
attachment against the property of the debtor; and the proceedings on
such attachment shall be conducted in all respects as if the claim were
due, but judgment must not be rendered in the action under [until] the
debt or claim upon which such attachment is made and shall become
due and payable.

Article V. — Of Receivers.

§ 219. Cases when appointed.] A receiver may be appointed by
the court in which an action is pending, or by the judge thereof:

1. In an action by a vendor to vacate a fraudulent purchase of prop-
erty, or by a creditor to subject any property or fund to his claim, or
between partners or others jointly owning or interested in any
property or fund, on the application of the plaintiff, or of any party
whose right to or interest m the property or fund, or the proceed^
thereof, is probable, and where it is shown that the property or fiind
is in danger of being lost, removed, or materially injured.

2. In an action by a mortgagee for the foreclosure of his mortgage
and sal6 of the mortgaged property, where it appears that the mort-
gaged property is in dancer of being lost, removed, or materially
injured, or that the conditions of the mortgage have not been per-
formed, and that the property is probably insufficient to discharge the
mortgage debt.

• 3. A^r judgment, to carry the judgment into effect.

4. After judgment to dispose of the property according to the judg-
ment, or to preserve it diiring the pendency of an appeal, or in
proceedings in aid of execution, when an execution has been returned
unsatisfied, or when the judgment debtor refuses to apply his property
in satisfaction of the judgment.

5. In the cases where a corporation has been dissolved, or is insol-
vent, or is in imminent danger of insolvency, or has forfeited its
corporate rights.

6. In all other cases where receivers have heretofore been appointed
by the usages of courts df equity.

§ 220. Receivers for corporation dissolved.] Upon the dissolu-
tion of any corporation, the district court of the county in which the
corporation carries on its business, or has its principal place of busi-
ness, on application of any creditor of the corporation, or of any
stockholder or member thereof, may appoint one or more persons to
be receivers or trustees of the corporation, to take charge of the estate
and effects thereof, and to collect the debts and propertv due and
belonging to the corporation, and to pay the outstanding debts thereof,

Code of Civil Procedure. Civil Actions. 517

and to divide the moneys and other property that shall remain over,
among the stockholders or members.

§221. Who mat.be receiver — undertaking by applicant.] No
party or person interested in an action can be appointed receiver
therein, without the written consent of the party, filed with the clerk.
If a receiver be appointed upon an ex parte application, the court,
before making the order, may require from the applicant an under-
taking, with sufficient sureties, in an amount to be fixed by the court,
to the effect that the applicant will pay to the defendant all damages
he may sustain by reason of the appointment of such receiver, and the
entry by him upon his duties, in case the applicant shall have procured
such appointment wrongfully, maliciously, or w^ithout sufficient cause;
and the court, may, in its discretion, at any time after said appoint-
ment, require an additional undertaking.

§ 222. Qualification of receiver.] Before entering upon his duties
the receiver must be sworn to perform them faithfully, and, with one
or more sureties, approved by the court or judge, execute an under-
taking to such person and in such sum as the court or judge may
direct to the enect that he will faithfully discharge the duties of
receiver in the action, and obey the orders of the court therein.

§ 233. Powers.] The receiver has, under the control of the court,
power to bring and defend actions in his own name as receiver, to
take and keep possession of the property, to receive rents, collect debts,
to compound for and compromise the isame, to make transfers, and
generally to do such acts respecting the property as the court may
authorize.

§ 224. Investment of funds on consent.] Funds in the hands of a
receiver may be invested upon interest, by order of the court; but no
such order can be made except upon the consent of all the parties to
the action.

Article VI. — Of Deposit.

§ 225. What subject to order of deposit.] When it is admitted
by the pleadings or the examination of a party that he has in his

Sossession, or under his control, any money or other thing capable of
elivery. which, being the subject of the litigation, is held by him as
trustee tor another party, or which belongs or is due to another party,
the court may order the same to be deposited in court, or delivered to
such party, with or without security, subject to the further direction
of the court.

§ 226. Disobedience — contempt.] Whenever in the exercise of its
authority, a court shall have ordered the deposit, delivery, or convey-
anoe of money or other property, and the order is disobeyed, the court,
besides punishing the disobedience as for contempt, may make an
order requiring the sheriff to take the money or property, and deposit,
deliver, or convey it in conformity with the direction of the court.

§ 227. Defendant's admissions.] When the answer of the defend-
ant, expressly, or by not denying, admits part of the plaintiff's claim
to be just, the court, on motion, may order such defendant to satisfy
that part of the claim, and may enforce the order as it enforces a judg-
ment or a provision^-l remedy.

518 CrviL Actions. Code of Civil Procedure.

CHAPTER Xri.

■

OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS.

Article I. — Judgment Upon Failure to Answer, &c.

§ 228. Judgment defined.] A judgment is the final determination
of the rights of the parties in the action.

§ 229. On failure to answer counter-claim — relief — published
SERVICE — RESTITUTION.] Judgment may be had if the defendant fail
to answer the complaint as follows:

1. In any action arising on contract for the recovery of money only,
the plaintiff may file with the clerk proof of personal service of the
summons and complaint, on one or more of the defendants, or of the
summons according to the provisions of section 99, and that no
answer has been received. The court shall thereupon 'enter judgment
for the amount mentioned in the summons, against the defendant or
defendants, or against one or more of the several defendants in the
cases provided for in section 105. But if the complaint be not sworn
to, and such action be On an instilment for the payment of money
only, the court. On its production shall assess the amount due to the
plaintiff thereon, and m other cases shall ascertain the amount which
the plaintiff is entitled to recoVer in such action from his examination,
under oath, or other proof, and enter the judgment for the amount so
assessed or ascertained. In case the defendant give notice of appear-
ance in the action, he shall be entitled to five days' notice of the time
and place of such assessment. Where the defendant, by his answer
in any such action, shall not deny the plaintiff's claim, but shall set
up a counter-claim, amounting to less than the plaintiff's claim, judg-
ment may be had by the plaintiff for the excess of said claim over
the said counter-claim, in like manner in any such action, upon the
p^aintiff's filing with the clerk of the court a statement admitting
such counter-claim, which statement shall be annexed to and be a
part of the judgment roll.

2. In other actions the plaintiff' may, upon the like proof, apply to
the court, after the expiration of the time for answering, for the relief
demanded in the complaint. If the taking of an account, or of the
proof of any fact, be necessary to enable the court to give judgment,
or to carry the judgment into effect, the court may take the account
or hear the proof, or may, in its discretion, order a reference for that
purpose. And where the action is for the recovery of money only, or
of specific real or personal property, with damages for the with-
holaing thereof, the court may order the damages to be assessed by a
jury, or, if the examination of a long account be involved, by a refer-
ence as above provided. If the defendant give notice of appearance
in the action before the expiration of the time for answering, he shall
be entitled to eight days' notice of the time and place of application
to the court for the relief demanded by the complaint.

3. In actions where th6 service of the summons was by publication,
the plaintiff may, in like manner, apply for judgment, ana the court
must thereupon require proof to be made of the demand mentioned

Code of Civil Procedure. Civil Aotions. 519

in the complaint; and if the defendant be not a resident of the terri-
tory, must require the plaintiff or his agent to be examined on oath
respecting any payments that have been made to the plaintiff, or to
any one for his use, on account of such demand, and may render judg-
ment for the amount which he is entitled to recover. Before render-
ing judgment the court may, in its discretion, require the plaintiff to
cause to be filed satisfactory security, to abide the order of the court,
touching the restitution of any estate or effects which may be directed
by such judgment to be transferred or delivered, or the restitution of
any money that may be collected under or by virtue of such judgment,
in case the defendant or his representatives shall anply and be admit-
ted to defend the action, and shall succeed in such aefense.

§ 230. On frivolous pleading.] If a demurrer, answer, or reply be
frivolous, the party prejudiced thereby, upon a previous notice of five
days, may apply to a judge of the court either in or out of the court,
for judgment thereon, and judgment may be given accordingly.

Article II. — Issues and Mode of Trial.

§ 231. Origin and classes of issues.] Issues arise upon the plead-
ings when a fact of conclusion of law is maintained by the one party,
controverted by the other. They are of two kinds:

1. Of law; and,

2. Of fact.

§ 232. Issues of law.] An issue of law arises upon a demurrer to
the complaint, answer or reply ; or to some part thereof.

' 233. Of fact classified.] An issue of fact arises:

Upon a materia] allegation in the complaint controverted by the
answer; or,

2. Upon new matter in the answer controverted by the reply; or,

3. Upon new matter in the reply, except an issue of law is joined
thereon.

§ 234. Both — order of trial.] Issues both of law aiid of fact may
arise upon different partstof the pleadings in the same action. In
such cases the issues of law must be first tried, unless the court other-
vf ise direct.

§ 235. Trial defined.] A trial is the judicial examination of the
issues between the parties, whether they be issues of law or of fact.

§ 236. By whom triable.] An issue of law must be tried by the
court, unless it be ireferred as provided in sections 271 and 272. An
issue of fact in an action for the recovery of money only, or of specific,
real or personal property, or for a divorce from the marriage contract,
must be tried by a jury, unless a jury trial be waived as provided in
section 265, or a reference be ordered, as provided in section 272. Every
other issue is triable by the court, which, however, may order the whole
issue, or any specific question of fact involved therein, to be tried by a
jury, or may refer it, as provided in .section 272.

§ 237. Single judoEt-when issues tried.] All issues of fact, tria-
ble by a jury or ])y the court, must be tried before a single judge.
Issues of fact must be tried at a regular term of the district court,
when the trial is by jury, otherwise at a regular or special terra, as the
court may, by its rules, prescribe. Issues of law must be tried at a
regular or special term of the district court. JL'^b ^- <\s I

520 dviL Actions. Code of Civil Procedure.

% 288. Note of issub — oontenta — orbbr of trials.] At any time
after issue, and at least ten days before the court, either party may
give notice of trial. The party giving the notice shall furnish the
clerk, at least eight days before tne court, with a note of the issue,
containing the title of the action, the names of the attorneys, and the
time when the last pleading was served; and the clerk shall thereupon
enter the cause upon the calendar, according to the date of the issue.
There need be but one notice of trial, and one note of issue from either
party, and the action must then remain on the calendar until disposed
of, and when called may be brought to trial by the party giving the
notice. The issues on the calendar shall be disposed of in the follow-
ing order, unless, for the convenience of parties or the dispatch of
business, the court shall otherwise direct:

1. Issues of fact to be tried by a jury.

2. Issues of fact to be tried by the court.

3. Issues of law.

§ 239. Either party proceeds— separate trials.] Either party,
when the case is reached upon the calendar, and in the absence of the
adverse party, unless the court, for good cause, otherwise direct, may

Sroceed with his case, and take a dismissal of the complaint, or a ver-
ict, or judgment, as the case may require. A separate trial between
a plaintiff and any of the several defendants may be allowed by the
court, whenever, in its opinion, justice will be promoted.

§ 240. Who to furnish papers.] When the issue shall be brought
to trial by the plaintiff, he shall furnish the court with a copy of the
summons and nleadings, with the offer of the defendant, if any shall
have been made. When the issue shall be brought to trial by the
defendant, and the plaintiff shall neglect or refuse to furnish the court
with a copy of the summons and pleadings, and the offer of the defend-
ant, the same may be furnished by the defendant.

•

Article III. — Formation of the Trial Jury.

§ 241. Jury tickets.] At the opening of the court the clerk must
prepare separate ballots containing the names of the persons returned
as jurors, which must be folded as nearly alike as possible, and so that
the names cannot be seen, and must deposit them in the trial jury box.

§ 242. Clerk to draw jury.] When the action is called for trial by
jury, the clerk must draw from the trial jury box of the court the bal-
lots containing the names of the jurors summoned, until the jury is
completed or tlie ballots are exhausted.

§ §43. Challenges classed--- by whom.] Either party may challenge
the jurors, but where there are several parties on either side, they must
join in a challenge before it can be maae. The challenges ariB to indi-
vidual jurors, and are either peremptory or for cause. Each party is
entitled to three peremptory challenges. If no peremptory challenges
are taken until the panel is full, they niust be taken by the parties
alternately, commencing with the plaintiff.

§ 244. For cause.] uhallenges for cause may be taken on one or
more of the following grounds:

1. A want of any of the qualifications prescribed by the political
code to render a person competent as a juror.

Code of Civil Procedure, Civil Aotiows. 621

#

2. ConBangaiftitv or affinity, within the fourth deffree, to either party.

3. Standing in the relation of guardian and ward, master and serv-
ant, employer and clerk, or princii)al and agent to either party, or
being a member of the family of either party, or being a partner in
business with either party, or surety on any bond or obligation for
either party.

4. Having served as a -juror or been a witness on a previous trial
between the same parties for the same cause of action.

5. Interest on the part of the juror in the event of the action, or in
the main question involved in the action, except his interest as a mem-
ber or citizen of a municipal corporation.

6. Having an unqualified opinion or belief as to the merits of the
action, founded upon knowledge of its material facts, or some of them.

7. The existence of a state of mind in the juror evincing enmity
against^ or bias to or against, either parfcy.

8. That he does not understand the English language as used in the
courts.

§ 245. Trial of same.] Challenges for cause must be tried by the
court. The juror challenged and any other person may be examined
as a witness on the trial of the challenge.

§ 246. Oath to juboes.J As soon as the jury is completed, the fol-
lowing oath must be administered to the jurors:

'* You, and each of you, do solemnly swear, that you will well and truly liy the matters in

iflBue between the plaintiff, and defendant, and a true verdict render

according to the evidence. So help you God.

If any person be conscientiously scrupulous of taking an oath, he
shall be allowed to make affirmation, su ostituting for tne words " So
help you God," at the end of the oath, the following: "This you do
affirm under the pains and penalties of perjury."

Article IV. — Of the Conduct of the Trial.

§ 247. Order op trial.'I When the jury has been sworn, the trial
must proceed in the following order, unless the judge, for special
reasons, otherwise directs:

1. The plaintifT, after stating the issue and his case, must produce
the evidence on his part.

2. The defendant may then open his defense, and offer his evidence
in support thereof.

8. Tne parties may then respectively offer rebutting evidence only,
unless the court, for good reason, in furtherance of justice, permit
them to offer evidence upon their original case.

4. When the evidence is concluded, unless the case is submitted to
the jury on either side or on both sides without argument, the plaintiff
must commence and may conclude the argument.

5. If several defendants, having separate defenses, appear by
different counsel, the court must determine their relative order in the
evidence and argument.

6. The court may then charge thfe jury.

§ 248. Charge wholly written — giving and refusing.] The court,
in charging the jury, shall only instruct as to the law of the case; and
no judge snail instruct the petit jury in any case, civil or criminal,

522 Civil Actions. Code of Civil ProcMwre.

unless such instructions are reduced to writing; aod whfen instructiotis
are asked which the judge cannot give, he shall write on the mar^n
thereof the word, " refused," and such as he approves, he shall write
on the margin thereof the word, *' given;" and he shall, in no case,
after instructions are given, qualify, modify, or in any manner explain
the same to the jury, otherwise than in writing; and all instructions
asked for by counsel shall be given or refused by the judge, without
modification or change, unless such modification or change be con-
sented to by the counsel asking the same.

§ 249. Order of reading — by whom-— jury to have — bxoeptiohs
BEFORE judgment.] All iustructious given by the judge shall be read
to the jury in the following order:

1. Defendant's instructions by defendant's counsel.

2. Plaintiff's instructions by plaintiff's counsel.

3. Instructions given by the judge, of his own motion, if any, by the
judge giving the same; and ail instructions so given and read shall be
taken by the jury in their retirement, and returned into court with
their verdict. Exceptions to the giving or refusing any instruction,
or to its modification or change, may be taken at any time before the
entry of final judgment in the case.

§ 250. View by jury.] When, in the opinion of the court, it is
proper for the jury to have a view of the property which is the subieet
of litigation, or of the place in which any material fact occurred, it
may order them to be conducted, in a body, under the charge of an
oflScer, to the place, which shall be shown to them by some person
appointed by the court for that purpose. While the jury are thus
absent, no person, other than the person so appointed, shall speak to
them on any subject connected with the trial.

§ 251. Admonitions to jury.] If the jury are permitted to separate,
either during the trial, or after the case is submitted to them, they
shall be admonished by the court that it is their duty not to converse
with, or suffer themselves to be addressed by any other person, on any
subject of the trial, and that it is their duty not to form or express an
opinion thereon until the case is finally submitted to them.

§ 252. Papers jury may take.] Upon retiring for deliberation, the
jury may take with them all papers which haye been received as
evidence in the cause, except depositions, or copies of such papers as
ought not, in the opinion of the court, to be taken from the person
having them in possession; and they may also take with them notes
of the testimony or other proceedings on the trial, taken by them-
selves, or any of them, but none taken by any other person.

§ 253. Conduct of jury in retirement.] When the case is finally
submitted to the jury, they may decide in court or retire for delibera-
tion. If they retire, they must be kept together in some convenient
place, under charge of an ofiicer, until they agree upon a verdict or
are discharged by the court. Unless by order of the court, the officer
having them under his charge must not suffer any communication to
be made to them, or make any himself, except to ask them if they
have agreed upon a verdict; and he must not, before their verdict is
rendered, communicate to any person the state of their deliberations,
or the verdict agreed upon.

Cod^ of Civil Procedure. Civij. Actions. SftS*

§ 254. DisAGREEMBNT-'iNFORMATioN.] After thft jurv have retired
for deliberation, if there be a disagreement between them as to any

f)art of the testimony, or if they desire to be informed of any point of
aw arising in the case, they may reqnire the officer to conduct them
into court. Upon their being brought into court, the information
required must be given in the presence of, or after notice to, the
parties or counsel.

§ 255. Sick juror discharged.] If, after the empaneling of a jury,
and before a verdict, a juror become sick, so as to be unable to perform
his duty, the court may order him to be discharged. In that case, the
trial may i)roceed with the other jurors, or another juror may be sworn,
and the trial begin anew; or the jury may be discharged, and a new
jury then or afterwards empaneled.

§ 256. Prevented verdict-— new trial.] In all cases where the-
jury are discharged, or prevented from giving a verdict, by reason of
accident or other cause, during the progress of the trial, or after the
cause is submitted to them, the action may be again tried immediately,
or at a future time, as the court may direct.

§ 257. Sealed verdict — adjournment.] While the jury are absent,
the court may adjourn from time to time, in respect to other business: *
but it is nevertheless open for every purpose connected with the cause
submitted to the jury, until a verdict is rendered or the jury dis-
charged. The court may direct the jury to bring in a sealed verdict, at
the opening of the court, in case of an agreement during a recess or
adjournment for the day. A final adjournment of the court for the
term discharges the jury.

§ 258. Receiving verdict.] When the jury have agreed upon their
verdict, they must be conducted into court, their names called by the
clerk, and the verdict rendered by their foreman. The verdict must be
in writing signed by the foreman, and must be read by the clerk to the
jury, and the inquiry made whether it is their verdict. If any juror
disagrees, they must be sent out again; but if no disagreement be
expressed, and neither party requires the jury to be polled, the verdict
is complete, and the jury discharged from the case. Either party may
require the jury to be polled, which is done by the court or clerk ask-
ing each juror if it is his verdict. If any one answer in the negative,
the jury must again be sent out.

§ 259. Correcting verdict.] When the verdict is announced, if it
be informal or insufficient, in not covering the issue submitted, it may
be corrected by the jury under the advice of the court, or the jury
may be again sent out.

Article V. — Of the Verdict.

§ 260. General and special verdict defined.] The verdict of a
jury is either general or special:

1. A general verdict is that by which they pronounce generally
upon all or any of the issues, either in favor of the plaintiff or defend-
ant; and,

2. A special verdict is that by which the jury find the facts only,
leaving the judgment to the court.

The special verdict must present the conclusions of fact as estab-
lished by the evidence; and not the evidence to prove them; and these

524 Civil Actions. Code of Civil Procedure.

conclusions of fact must be so presented as that nothing shall remain
to the court but to draw jfrom them conclusions of law.

§ 261. Whbn either — special when directed.] In an action for
the recovery of money only, or specific real property, the jury, in
their discretion, may render a general or special verdict. In^all other
cases the court may direct the jury to find a special verdict in writing
upon all or any of the issues, and in all cases may instruct them, if
tney render a general verdict, to find jipon particular questions of fact
to be stated in writing, and may direct a written finding thereon. The
special verdict or finding must be filed with the clerk, and entered
upon the minutes. Where a special finding of facts is inconsistent with
the general verdict, the former controls the latter, and the court must
give judgment accordingly.

§ 262. Jury TO find amount — assessment.] When a verdict is found
for the plaintiff" in an action for the recovery of money, or for the
defendant, when a counter-claim for the recovery of money is est<ab-
lished, exceeding the amount of the plaintiffs claim as established,
the jury must also find the amount of the recovery; and they may
also, under the direction of the court, assess the amount of the
recovery, when the .court gives judgment for the plaintiff on the
answer.

§ 263. Must find value and damages.] In an action for the
recovery of specific i>er8onal property, if the property has not been
delivered to the plain^ff, or the defendant by his answer claim a
return thereof, the jury, if their verdict be in favor of the plaintiff, or,
if being in favor of the defendant, they also find that he is entitled to
a return thereof, must find the value of the property, and, if so
instructed, the value of specific portions thereof, and may at the same
time assess the damages, if any are claimed in the complaint or answer,
which the prevailing party has sustained by reason of the taking or
detention of such property.

§ .264. Verdict and entries.] Upon receiving a verdict an entry
must be made by the clerk in the minutes of the court, specifying the
time of trial, the names of the jurors and witnesses, and setting out
the verdict at length; and where a special verdict is found, either the
judgment rendered thereon, or, if the case be reserved for argument or
futher consideration, the order thus reserving it.

•

Article VI. — Op the Trial by the Court.

§ 266. How JURY waived.] Trial by jury may be waived by the
several parties to an issue of fact in actions arising on contract, or
for the recovery of specific real or personal property, with or without
damages, and with the assent of the court in other actions, in manner
following:

1. By failing to appear at the trial.

2. By written consent^ in person or by attorney, filed with the
clerk.

3. Bv oral consent, in open court, entered in the minutes.

§ 266. When court to decide.] Upon the trial of a question of fact
by the court, its decision must be given in writing and filed with the
clerk within thirty days after the cause is submitted for decision.

r

Code of Civil Procedure. Civil Actions. &25

§ 267. Separatbly stated.] In giving the decision, the facts found
and the conclusions must be separately stated. Judgment upon the
decision must be entered accordingly.

§ 268. Findings waived:] Findings of fact may be waived by the
several parties to an issue of fact:

1. By failing to appear at the trial.

2. By consent in writing, filed with the clerk.

3. Bv oral consent, in opefi court, entered in the minutes.

§ 269. Preparation op findings by partieib.] At the time the cause
is submitted the judge may direct eithcF or both parties to prepare
findings of facts, unless they have been waived, and when so airected
the party must within two days prtpare and serve upon his adversary,
and submit l!R the judge such findings, and may, within two days
thereafter, briefly suggest in writtin^ to the jud^e why he desires
findings upon the pomts included within the finaing:8 prepared by
himself, or why he objects to findings upon the points included within
the findings prepared by his adversary. The judge may adopt, modify
or reject the findings so submitted. If at the time of the submission
of the cause, the judge does not direct the preparation of findings,
or those prepared are rejected, then he must himself prepare the
findings.

§ 270, MAKiNia UP JUDGMENT.] Ou a judgment for the plaintiff unon
an issue of law he may proceed in the manner prescribed hv the nrst
two subdivisions of section 229, upon the faiiire of the derendant to
answer. If judgment be for the defendant upOn an issue of law, and
the taking of an account, or the proof of any fact, be necessary to
enable the court to comnlete the judgment, a reference may be ordered
as in that section provided.

Article YII. — Of Rejpsrskobs and Trials by Referees.

§ 271. Reference by consent.] A reference may be ordered upon
the agreement of the parties, filed with the clerk, or entered in the
minutes: • ,

1. To hear and determine any or all of the issues of fact in an action
or proceeding, and to report a finding upon which judgment may be
entered by the court.

2. To ascertain a fact necessary to enable the court to determine an
action or proceeding.

§ 272. Without coNSENt.] Where the parties do not consent, the
court may, upon the application of either, or of its own motion, direct
a reference in all cases formerly cognizable in chancery in which
reference might be made.

§ 273. To WHOM ORDERED.] A reference may be ordered to any per-
son or persons, not exceeding three, agreed upon by the parties. If the
parties do not agree, the court or judge must appoint one or more
referees, not exceeding three, who reside in the county or subdivision
in which the action or proceeding is triable, and against whom there
is no legal objection.

§ 274. Challenges to referee.] Either party may object to the
appointment of any person as referee for the same cause for which
cnallenges for cause may be taken to a petit juror in the trial of a civil
action.

626 Civil Actions. Co<le of Civil Procedure.

% 275. Court or jddoe hkabs.] The obieotions taken to the appoint-
ment of any person aa referee must be heard and disced of by the
court or judge thereof. Affidavits may be read and witnesses exam-
ined ias; to Siuoh objections. .

§ 276. Report by referees.] The referees must report their find-
ings in writing to the court within twenty days after tne testimony is
closed; but the time maybe extended by consent of the parties, or by
order of the court or judge.

§ 277. Fi??i)M;rG ONLY of facts — special verdict.] The reference in
all cases shall be to find the facts, and the finding reported has the
efiect of a special verdict, and may be excepted to and set aside in like
manner.

278. OAtH OF referees.] The referees, before proceeding to hear
any testimony, must be sworn to well and truly hear and determine
the facts referred to them, and true findings render according to the
evidence; and they have power to administer oaths to all witnesses
produced before them.

Article VIII. — Exceptions.

§ 279. How stated.] No particular form of exception is required.
The objection must be stated, with so much of the evidence or other
matter, as is necessary to explain it, and no more. But when the
exception is to the v.erj|jct or decision, upon the grounds of the insuf-
ficiency of the evidence to sustain it, the objection must specify the
particulars in which such evidence is alleged to be insuflicient.

§ 280. Settled at time or after.] A bill containing the excep-
tions to any ruling may be presented to the judge at the time the ruling
is made, or the exception may be entered on tne judge's minutes, and
afterwards settled. The bill must be conformable to the truth, or be
at the time corrected until it be so, and signed by the judge and filed
with the clerk.

§ 281. Settled in ten days on three days' notice.] If a bill is not
presepted at the time of the ruling, a bill containing the exceptions,
or any of them^ relating to any ruling had up to the time of the entry
of judgment, may upon three days' notice to the adverse party, at any
time alter such ruling is made, and within ten days after the entry of
judgment, or such otner time as may be fixed by the court, be pre-
sented to the judge and settled. Ail. %3^. ^"^v

§ 282. ExoBPTjONs AFTER JUDGMENT.] Exceptious to any decision
made after judgment, may be presented to the judge at the time of
such decision, and may be settled or noted as provided in section 280,
and a bill thereof may be presented swid settled afterwards, as provided
in section 281, and within like periods after entry of the order, upon
appeal from which such decision is reviewable.

I 283; Application to supreme court.] If the judge in any case
refuse to allow an exception in accordance with the facts, the party
desirine the bill settled may apply by petition to the supreme court to
prove the same. The application may be made in the mode and man-
ner, and under such regulations as the court may prescribe, and the
bill, when proven, must be certified by a justice thereof as correct, and
filed with the clerk of the court in which the action was tried, and

y

Code of Civil Procedure. Civil Actions. 527

when so filed it has the same force and effect as if settled by the judge
who tried the cause^

§ 284; In case of vacancy.] If the judge who presided at the trial
ceases to hold office before the bill is tendered or settled, he may never-
theless settle such bill, or the party may, as provided in the preceding
section, apply to the supreme court to prove the same.

Article IX. — Of New Trials.

§ 285. Definition.] A new trial is a re-examination of an issue of
fact in the same court aftej a trial and decision by a jury or court, or
/*3fo referees.

§ 286. Causes for — who applies.] The former verdict or other
decision may be vacated and a new trial granted, on the application
of the party aggrieved, for any of the following causes, materially
affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury, or adverse party,
or any order of the court, or abuse of discretion by which either party
was prevented from having a fair trial,

2. Misconduct of the jury; and whenever any one or more of the
• jurors have been induced to assent to any general or special verdict,

or to a finding on any question submitted to them by the court, bv a
tiesort to the determination of chance, such misconduct may be proved
by the affidavit of any one of the jurors.

8. Accident or surprise, which ordinary prudence could not have
guarded against.

4. New^ discovered evidence, material to the party making the
application, which he could not, with reasonable diligence, have dis-
covered and produced at the trial.

5. Excessive damages, appearing to have been given under the
influence of passion or prejudice.

6. Insufficiency of the evidence to justify the verdict or other
decision, or that it is against law.

7. Error in law, occuring at the trial and excepted to by the party
making the application.

§ 287. Upon affidavits or record.] When the application is
made for a cause mentioned in the first, second, third, and fourth sub-
divisions of the preceding section, it must be made upon affidavits; for
any other cause it may be made, at the option of the moving party,
either upon the minutes of the couiii, or a bill of exceptions, or a
statement of the case, prepared as hereinafter provided. t5L.1% a- vf\>^>

§ 288. Notice — contents — when heard.] The party intending to
move for a new trial must serve upon the adverse party a notice of
his intention, designating therein generally the grounds upon which
the motion will be made. Such motion must be made and determined
during the term at which the cause was tried, unless for good cause
further time be given by the court; and, except in cases of newly dis-
covered evidence, the application must be made within three days
after the verdict or decision is rendered. Motions for new trial on the
ground of newly discovered evidence may be made at the term at
which the cause is tried or at the next succeeding term, ci*.- %t ^. i^% I

528 Civil Actions. Code of Civil Procedure,

% 289. Verdict vacated by oouet.] The verdict of a jury may
also be vacated, and a new trial granted by the court in which the
action is pending, on its own motion, without the application of either
of the parties, when there has been such plain disregard by the jury
of the instructions of the court, or the evidence in the case, as to
satisfy the court that the verdict was rendered under a misapprehen-
sion of such instructions, or under the influence of- passion or
prejudice.

§ 290. Hearing at chambers or in other court.] When the action
is tried by a district judge in his district, out of the county of his
residence, the motion for a new trial may, upon the consent of parties,
be brought to a hearinff before such judge at chambers, or in open
court, in the county of his residence, or in any other county. tJL,%BA-tV^ >

Article X. — ^Manner of Giving, Entering, and Satisfying Judgments.

§ 291. Entered by clerk on order.] Judgment upon an issue of
law, or fact, or upon confession, or upon fauure to answer, may be
entered by the clerk upon the oraer of the court or the judge thereof.

§ 292. Against whom — counter-claim.] 1. Judgment may be given
for or against one or more of several plaintiffs, and for or against one
or more of several defendants; and the court may determine the alti*
mate rights of the parties on each side as between themselves.

^. If a counter-claim, established at the trial, exceed the plaintiff's
demand, so established, judgment for the defendant must be given for
the excess; and the court may grant to the defendant any amrmative
relief to which he may be entitled.

3. In an action against several defendants, the court may, in its
discretion, render judgment against one or more of them, leaving the
action to proceed against the others, whenever a several judgment
may be proper.

4. The court may also dismiss the complaint, with costs in fiivor of
one or more defendants, in case of unreasonable neglect on the part of
the plaintiff to serve the summons on other defendants, or to proceed
in the cause against the defendant or defendants served. In an action
brought by or against a married woman, judgment may be given
against her as well for costs as for damages, or both for such coste and
for such damages, in the same manner as against other persons, to be
levied and collected of her separate estate, and not otherwise.

§ 293. Relief limited by complaint.] The relief granted to the

Slaintiff, if there be no answer, cannot exceed that which he shall have
emandtf4 in his complaint; but in any other case the court may
grant him relief consistent with the case made by the complaint and
embraced within the issue.

§ 294. Death before judgment.] If a party die after a verdict or
decision upon any issue of fact, and before judgment, the court may
nevertheless render judgment thereon. Such judgment is not a lien
on the real property of the deceased party, but is payable in the course
of administration on his estate.

§ 295. .To RECOVER PERSONALTY.] In au action to recover the
possession of personal property, the judgment for the plaintiff may be
for the possession, or for the recovery of possession, or the value

Code of Civil Procedure. Civil Actions. 529

thereof in case a delivery cannot be had, and of damages for the deten-
tion. If the property have been delivered to the plaintiff, and the
defendant claim a return thereof, judgment for the defendant may be
for a return of the property, or the value thereof in case a return
cannot be had, and damages for taking and withholding the same.

§ 296. Putting in possession.] Every judgment that contains a
direction for the sale of any specific real property may also direct the
delivery of the possession of such property to the purchaser; and the
officer receiving the execution or order 'of sale, may enforce such"
judgment by putting the purchaser in possession of the premises, in
like manner and with like authority, as if special execution had been
directed to him for that purpose.

§ 297. Judgment book.] The clerk shall keep, among the records
of the court, a book for the entry of the judgments, to be called the
"judgment book."

§ 298. Entries.] The judgment shall be entered in the judgment
book, and shall specify clearly the relief granted, or other determina-
tion of the action.

§ 299. Judgment boll — contents.] Unless the party or his attorney
shall furnish a judgment roll, the clerk, immediately after entering*
the judgment, shall attach together, and file the following papers,
which shall constitute the judgment roll:

1. In case the complaint be not answered by any defendant, the
summons and complaint, or copies thereof, proof of service, and that
no answer has been received, the report, if any, and a copy of the
judgment.

2. In all other cases, the summons, pleadings, or copies thereof, and
a copy of the judgment with any verdict or report, the offer of the
defendant, exceptions, case, and all orders or papers in any way involv-
ing the merits and necessarily aftecting the judgment.

g 300. Docketing in other counties — secured on appeax — effect.]
On filing a judgment roll, upon a judgment directing, in whole or in
part, the pajrment of money, it may be docketed witn the clerk of the
court in which it was rendered, in a book to be known as the judg-
ment docket, and in any other county or subdivision, upon filing witn
the clerk of the district court for said county or subdivision, a tran-
script of the original docket; and it shall be a lien on all the real property, \
except the homestead, in the county or subdivision where the same is
so docketed, of everj^ person against whom any such judgment shall
be rendered, and which he may have at the time of the docketing
thereof in the county or subdivision in which such real property is
situated, or which he shall acquire at any time thereafter, for ten
years from the time of docketing the same in the county or subdi-
vision where it was rendered. But whenever an ajppeal from any judg-
ment shall be pending, and the undertaking requisite to stay execution
on such judgment shall have been given, and the appeal perfected as
provided in this code, the court in which such judgment was recovered
may, on special motion^ after notice to the person owning the judg-
ment, direct the clerk to make an entry on the judgment aocket that
the same is "secured on appeal," and thereupon it shall cease, during
the pendency of the appeal, to be a lien on the real property of the
judgment debtor as against purchasers and mortgagees in good faith.

34

580 Civil Actions. Code of Civil Procedure.

§ 301. Form of judgment docket.] The clerk shall docket the judg-
ment by entering alphabetically in tne judgment docket the names of
the judgment debtor or debtors, the names of the party or parties in
whose favor the judgment was rendered, the sum recovered or directed
to be ^aid, in figures; the date of the judgment; the year, day, hour,
and minute when the judgment roll or transcript was filed; the year,
day, hour, and minute when the judgment was docketed in his office,
and the page in the judgment book where the same is entered ; the
name of the court in which the judgment was rendered; the name of
the attorney or attorneys for the party recovering the judgment; and,
if there are two or more judgment debtors, such entries must be
repeated under the initial letter of the surname of each.

8 302. Assignment of judgment formalities — entries.] Every
clerk of the district court, upon the presentation to him of an assign-
ment of any judgment rendered or docketed therein, signed by the
party in whose favor the judgment is rendered, his executor or admin-
istrator, and acknowledged in the manner prescribed by law for the
acknowledgment of deeds, must immediately enter the same in the
. judgment book, and must note the fact of such assignment, the date
thereof, and the name of the assignee, in the margin of the entry of
such judgment, in such judgment book, and also upon the docket of such
judgment. And the clerk of the district court ^of any other county or
subdivision where such judgment is docketed, must note the fact of
such assignment, the date thereof, and the name of the assignee, upon
the presentation to and filing with him a certified copy of tneorigiiijj
judgment docket .with the said facts of such assignment noted thereon.

§ 303. Cancellation and discharge.] Any judgment rendered
or docketed in the district courts of the territory, may be canceled
and discharged by the clerk thereof:

1. Upon the filing with him of an acknowledgment of the satisfaction
thereof, signed by me party in whose favorthe judgment was obtained,
his attorney of recora, his executor, administrator, or assignee, and
duly acknowledged in the manner require^ to admit a deed of real
property to record.

2. Upon the return of any execution,, issued upon such judgment
wholly satisfied, or the presentation of a satisfaction piece duly execu-
ted and acknowledged as hereinbefore provided, to tne clerk of any
district court, he must immediately note upon the judgment docket^
and in the margin of the judgment book where such judgment is
entered, the date of such cancellation and the manner thereof, by sat-
isfaction piece filed, execution returned satisfied, or otherwise.

3. And any partial satisfaction of the judgment may be made and
noted upon the records in like manner; and thereupon all judgments
and liens thereby created, must be taken and deemed to be canceled
and discharged, to the extent of the entries so made upon the judg-
ment docket, and no more.

4. And the clerk of any other district court, or the district court of
any other county or subdivision, wherein a transcript of any such
judgment docket shall have been filed, and judgment docketed
accordingly, must cancel the same in like manner upon his judgment
docket, upon the filing in his office of a certified copy of the original
judgment docket entry, duly canceled as hereinbefore provided.

Code of Civil Procedure. Civil Actions. 531

§ 304. Justice's judgment docketed by clerk — lien.J A justice
of the peace, on the demand of a party in whose favor he shall have ren-
dered a judgment, must give a certified transcript thereof, which may
be filed in the office of the clerk of the district court of the county
or subdivision in which the judgment was rendered, and such clerk
must thereupon enter such judgment in the judgment book, and upon
the judgment docket; and from the time of the docketing thereof, it
becomes a judgment of such district court, and a lien upon real property,
and a certified transcript of the docket of such judgment may be
filed, and the judgment docketed ^'accordingly, in any other county
or subdivision, with the like effect, in every respect, as if the judgment
had been rendered in the district court where such judgment is
filed.

§ 305. Set-off of judgments.] Mutual final judgments may be
set off, pro tanto, the one against the other, by the court upon proper
application and notice.

CHAPTER XIIL

OF THE EXECUTION OP THE JUDGMENT IN CIVIL ACTIONS.

THE EXECUTION AND LEVY.

§ 806. Within five years.] The party in whose favor judgment
has heretofore been, or shall hereafter be given, and, in case of his
death, his personal representatives, duly appointed, may, at any time
within five years after the entry of judgment, proceed to enforce the
same by writ of execution as provided in this chapter.

§ 307. After five years, by leave.] After the lapse of five years
from the entry of judgment, an execution can be issued only by leave
of the court, upon motion, with personal notice to the adverse party,
unless he be absent, or non-resident, or cannot be found to make such
service, in , which case such service may be made by publication, or
in such other manner as the court shall direct. Such leave shall not
be given unless it be established by the oath of the party, or other
satisfactory proof, that the judgment, or some part thereof, remains
unsatisfied and due. But the leave shall not be necessary when execu-
tion has been issued on the judgment within five years, and returned
unsatisfied in whole or in part.

§ 308. For delivery or sale.] Where a judgment requires the
payment of money, or the delivery of real or personal property, the
same may be enforced in those respects by execution, as provided in
this chapter. When the judgment requires the sale of property, the
same may be enforced by a writ reciting such judgment, or the
material points thereof, and directing the proper officer to execute the
judgment, by making the sale and applying the funds in conformity
therewith. Where it requires the performance of any other act,
a<5ertified copy of the judgment may be served upon the party against
whom it is given, or the person or officer who is required thereby, or
by law, to obey the same, and his obedience thereto enforced. If he
refuse, he may be jranished by the court as for contempt.

532 Civil Actions. Code of Civil Procedure.

§ 309. • Kinds of execution.] There shall be three kinds of execu-
tion: one against the property of the judgment debtor; another
against his person; and the third for the delivery of the possession of
real or personal property, or such delivery with damages * for with-
holding the same.

*§ 310. Against property — to different counties.] When the exe-
cution is against the property of the judgment debtor, it may be issued
to the sheriff of any county where the judgment is docketed. When
it requires the delivery of real or personal property, it must be issued
to the sheriff of the county where the property, or some part thereof, is
situated. Executions may be issued at the same time to different
counties. Real property adjudged to be sold must be sold in the county
where it lies, by the sheriff of such county, or by a referee appointed
by the court for that purpose, and thereupon the sheriff or referee must
execute a certificate of sale to the purchaser, as hereinafter provided.
An execution may issue against a married woman, and it must direct"
the levy and collection ot the amount of the judgment against her
from her separate propertj^ and not otherwise.

§ 311. Against person — when,] If the action be one in which the
defendant might have been arrested, as provided in section 149 and
section 151, an execution against the person of the judgment debtor
may be issued to any county within the jurisdiction of the court, after
the return of an execution against his property unsatisfied in whole or
in part. But no execution shall issue against the person of a judgment
debtor, unless an order of arrest has been served, as in this code pro-
vided, or unless the complaint contains a statement of facts showing
one or more of the causes of arrest required by section 149.

§ 312. Issue and contents of execution.] The writ of execution
must be issued in the name of the Territory of Dakota, attested in the
name of the judge, sealed with the seal of the court, and subscribed
by the clerk, and directed to the sheriff, or to the coroner when the
sheriff is a party or interested; and it must intelligibly refer to the
judgment, stating the court, the county where the judgment roll or
transcript is filed, the names of the parties, the amount of judgment,
if it be for money, and the amount actually due thereon, and the time
of docketing in the county to which the execution is issued, and shall
require the officer substantially as follows:

1. If it be against the property of the judgment debtor, to satisfy
the judgment, with interest and accruing costs, out of the personal
property of such debtor; and if sufficient personal property cannot be
found, out of the real property belonging to him on the day when the
judgment was docketeu in the county, or at any time thereafter.

2. If it be against real or personal property in the hands of personal
representatives, heirs, devisees, legatees, or tenants of real property, or
trustees, to satisfy the judgment out of such property.

8. If it be against the person of the judgment debtor, to arrest such
debtor, and commit him to the jail of the county until he shall pay the
judgment, or be discharged according to law.

4. If it be for the delivery of the possession of real or personal prop-
erty, to deliver the possession of the same, particularly describing it,
to the party entitled thereto, and may at the same time require th
officer to satisfy any costs, damages, or rents, or profits, recovered b

Code of Civil Procedure, Civil Actions. 533

the same judgment, out of the personal property of the party against
whom it was rendered, and the value of the property tor which the
judgment was recovered, to be specified therein; if a delivery thereof
cannot be had, and if sufficient personal property cannot be found,
then out of the real property belonging to him on the day when the
judgment was docketed, or at any time thereafter, and shall in that
respect be deemed an execution against property.

§ 313. Time of return.] The execution shall be returnable within
sixty days, after its receipt by the officer, to the clerk with whom the
record of judgment is filed.

§314. What property taken.] All goods, chattels, moneys, and
other property, both real and personal, or anv interest therein of the
judgment debtor, not exempt by law, and all property and rights of
property, seized and held under attachment in trie action, are liable to
execution. Shares and interests in any corporation or company, and
debts and credits, and all other property, both real and personal, or any
interest in real or personal property, and all other propertjr not capable
of manual delivery, shall be liable to be taken on execution and sold
as hereinafter provided. .

§ 315. Officer's proceedings on.] When an execution is delivered
to any officer, he must indorse thereon the day and hour when he
received it, and must proceed to execute the same with diligence; and,
if executed, an exact description of the property at len^h, with the
date of the levy, sale, or other act done by virtue thereof, must be
indorsed upon or appended to the execution; and if the writ was not
executed, or executed in part only, the reason in such case must be
stated in the return. If no personal property be found, an indorse-
ment to that effect must be made on the writ, before levy is made on
real property.

§ 316. Levy any sale.] The officer must execute the writ by
levying on the property of the judgment debtor, collecting the things
in action by suit in his own name, if necessary, or by selling the same,
selling the other property, and paying to the plaintiff the proceeds, or
so much thereof as will satisfy the execution.

§ 317. Amount levied — lien on personalty.] The officer must in
all cases select such property, and in such quantities, as will be likely
to bring the exact amount required to be raised, as nearly as prac-
ticable, and having made one levy, may, at any time thereafter, make
other Jevies if he deem it necessary, oxxt no writ of execution shall
be a lien on personal property before the actual levy thereof.

§ 318. Things in action.] Judgments, bank bills, and other things
in action, may be sold, or appropriated, as provided in the next follow-
ing section, and assignment thereof by the officer shall have the same
effect as if made by the defendant.

§ 319. Property not to be sold.] Money levied may be appro-
priated without being advertised or sold. The same may be done with
bank bills, drafts, promissory notes, or other papers of the like
character, if the plaintiff will receive them at their par value as cash,
or if the officer can exchange them for cash at that value.

§ 320. Payment to sheriff.] After the rendition of the judgment,
any person indebted to the defendant in execution, may pay to the
sheriff the amount of such indebtedness, or so much thereof as is

^34 Civil Actions. Code of Civil Procedure.

necessary to satisfy the execution; and the sheriffs receipt shall be a
sufficient discharge therefor.

§ 321. .Claim by third person— sheriff's jury.] If the property
levied on be claimed by a third person as his property, the sheriff may
summon from his county six persons qualified as jurors, between the
parties, to try the validity of the claim. He must also give notice of
the claim and of the time of trial to the plaintiff, who may appear
and contest the claim before the jury. The jury and the witnesses
must be sworn by the sheriff; and if their verdict be in favor of the
claimant, the sheriff may relinquish the levy, unless the judgment
creditor give him a sufficient indemnity for proceeding thereon. The
fees of the jury, the sheriff, and the witnesses must be paid by the
claimant, if the verdict be against him; otherwise by the plaintiff.
Each party must deposit with the sheriff, before the trial, the amount
of his fees, and the fees of the jury, and the sheriff must return to the
prevailing party the amount so deposited by him.

BXEMPTIOX8.

§ 322. Exempt from all process.] Except as hereinafter provided,
the property mentioned under this heading, is exempt from attach-
ment or mesne process, and from levy and sale on execution, and from
any other final process issued from any court.

§ 323. Absolute exemptions.] The property mentioned in this
section is absolutely exempt from all sucn process, levy, or sale:

1. All family pictures.

2. A pew or other sitting in any house of worship.

3. A lot or lots in any burial ground.

4. The family bible, and all school books used by the family, and all
other books used as a part of the family library, not exceeding in value
one hundred dollars.

5. All wearing apparel and clothing of the debtor and his family.

6. The provisions for the debtor and his ftimily, necessary for one
year's supply, either provided or growing, or both, and fuel necessary
for one year. ^

7. The homestead, as created, defined and limited by law.

§ 324. Additional exemptions.] In addition to the propertv men-
tioned in the preceding section, the debtor may, by himself or his
agent, select from all other of his personal property, not absolutely
exempt, goods, chattels, merchandise, money, or other personal prop-
erty, not to exceed in the aggregate fifteen nundred dollars in value,
which is also exempt, and must be chosen and appraised as herein-
after provided.

§ 325. Specific alternative exemptions.] Instead of the exemp-
tion granted in the preceding section the deotor may select and choose
the following property, whicn shall then be exempt, namely:

1. All miscellaneous books and musical instruments for the use of
the family, not exceeding five hundred dollars in value.

2. All household and kitchen furniture, including beds, bedsteads,
and bedding, used by the debtor and his family, not exceeding five
hundred dollars in value; and in case the debtor shall own more than
five hundred dollars worth of such property, he must select therefrom
such articles to the value of five hundred dollars, leaving the remainder
subject to legal process.

Code of Civil Procedure. Civil Actions. 535

3. Three cows, ten swine, one yoke of cattle, and two horses or
mules, or two yoke of cattle, or two span of horses or mules, one
hundred sheep and their lambs under six months old, and all wool of
the same, and all cloth or yarn manufactured therefrom, the necessary
food for the animals hereinbefore mentioned for one year, either
provided or growing, or both, as the debtor may choose; also one
wagon, one sleigh, two plows, one harrow, and farming utensils,
including tackle for teams, not exceeding, three hundred dollars in
value.

4. The tools and implements of any mechanic, whether a minor or
of age, used and kept lor the purpose of carrying on his trade or busi-
ness, and in addition thereto, stock in trade not exceeding two hundred
dollars in value. The library and instruments of any professional
person, not exceeding six hundred dollars in value.

§ 32o. Those 'BY number chosen; by value appraised.] All the
articles enumerated in the preceding section which are exempt by
limitation of number, must be chosen by the debtor, his agent or
attorney; so, also, all property exempt by limitation of value must be
determined by. an appraisement made under the direction of the
sheriff or other oflScer.

§ 327. Appraisers selected.] To make the appraisement, the
debtor, his agent or attorney, must select one person, and the creditor,
his agent or attorney, another person, and these two, so selected, a
third person, who must all be disinterested citizens of the county not
related to either party nearer than the fourth degree. If the two fail
to agree upon the third person, the sherift* or other officer must select
the third person; and in like manner, if either the debtor or creditor
fail or refuse, upon notice, to select a person .to act as one of the
appraisers, the sheriff or other officer must select one for them.

§ 328. Oath and duties of appraisers.] The three appraisers so
selected must take ai^d subscribe an oath before the sheriff or other
officer, to be attached to the inventory of appraisement, that they will
truly, honestly, and impartially appraise the property of the debtor.
The property must be appraised at the usual price of such articles at
sheriflTs sales, as near as can be determined, and must be set down in
an inventory by articles or by lots when definitely descriptive, with
the value opposite. From the appraisement so made, if over the
limitation in value, the debtor, his asent or attorney, may select the
amount in value of fifteen hundred dollars, or the alternative amounts
in value, of each class, leaving the remainder, if any, in either case,
subject to legal process.

§ 329. Wife, or child over sixteen, may act.) If, in any case, the
debtor neglect, or refuse, or for any cause fail to claim the whole or
any of the aforesaid exemptions, his wife is entitled to make such
claim or demand, and to select and choose the property, to select and
designate one of the appraisers, and to do all other acts necessary in
the premises, the same and with like effect as the debtor himself
might do; and if she neglect, refuse, or for any cause fail so to do, in
whole or in part, then one of their children, of sixteen years of age
and upwards, bemg a member of the family, may do so in like manner
and with like effect.

536 Civil Actions. Code of Civil Procedure.

§ 330. Sheriff to return bxemptions.] The sheriflF, or other officer
having any process of levy or sale, must make return with his writ
or waiTant, of any inventory and appraisement of any such exempted
or other personal property.

§ 331. Notice by sheriff to debtor — his claim.] In all cases of a
levy upon personal property by a sheriff, constable, or other officer, he
must give notice thereof to the debtor, his attorney, agent, or wife, or,
failing conveniently to find either, to such child as is described in
section 329; and the debtor, or such other person for him, must claim
or demand the benefit of these exemptions within three days after
such notice from the officer; and said notice of levy may be by copy
or by reading.
SLl.^-v^^- ^^^ §382. Laborers' or mechanics' wages.] Nothing in this chapter

shall be so construed as to exempt any personal property from execu-
tion for laborers' or mechanics' wages, except that absolutely exempt.

§ 333. Persons having no exemptions — partnerships.] Except
those made absolute, the exemptions herein provided for must not be
construed to apply to the following persons, namely:

1. To a corporation for profit.

2. To a non-resident.

3. To a debtor who is in the act of removing with his family from
the territory; or,

4. Who has absconded, taking with him his family.

5. A partnership firm can claim but one exemption of fifteen hun-
dred dollars in value, or the alternative property, when so applicable,
instead thereof, out of the partnership property, and not a several
exemption for each partner.

§ 334. For fines, penalties, and costs— forfeitures op recog-
nizances.] No property, either real or personal, except the homestead
and other exemptions made absolute, shall be exempt from levy, seiz-
ure and sale, by virtue of any final writ or process issued on a judg-
ment for fines, penalties, or costs of criminal prosecutions; and no
property, except the homestead and other exemptions made absolute,
and personal property of any kind in addition thereto, to the value of
five hundred dollai-s, shall be exempt from levy, seizure, or sale,
by virtue of any final writ or process issued on a judgment for forfeitures
of undertakings and bonds, or of recognizance taken and entered in
criminal cases.

sales.

§ 335. Published notice — perishable property.] The officer who
levies upon personal property by virtue of an execution, must, before
he proceeds to sell the same, cause public notice to be given of the
time and place of such sale, for at least ten days before the day of
«iale. The notice must be given by advertisement, published in some
newspaper printed in the county or subdivision, or, in case no news-
paper be printed therein, by posting up advertisements in five public

I places in the county. Perishable property may be sold by order of

the court or a judge thereof, prescribing such notice, time, and manner
of sale as may be reasonable, considering the character and condition
of the property.

tJU.'^^'o^.cy,/^ §336. Keal property.] Before any real property or interest
therein, taken in execution, shall be sold, the officer making such sale

Code of Civil Procedure. Civil Actions. 537

must cause public notice of the time and place thereof to be given by-
advertisement, published in some newspaper printed in the county or
subdivision where the real property to be sold is situated, once a week
for at least thirty days, and in case there be no newspaper printed
therein, then the officer making such sale must cause such advertise-
ment to be made in some newspaper having a general circulation in
such county or subdivision, and in addition thereto must post a copy
of such advertisement on the outer door of the court house, or building
wherein the district court of the county or subdivision was last' held,
and in five other public places in the county. All sales made without
notice as herein provided must be set aside by the court to which the
execution is returnable, upon motion to confirm the sale.

§ 337. Sale at court house door.] All sales of real property, or
any interest therein, under execution, must be held at the court house,
if there be one in the county or subdivision in which such real prop-
erty is situated, and if there be no court house, then at the door of the
house in which the district court was last held, and if there be no
court house, and no district court have been held in the county or
subdivision, then at such place, within the county or subdivision, as
the sheriff shall designate in his notice of sale.

§ 338. Manner and time of sale.] All sales of property under
execution must be made at public auction, to the niffhest bidder,
between the hours of nine in the morning and four in tne afternoon.
After sufficient property has been sold to satisfy the execution, no
more can be sold. No sheriff or other officer, nor his deputy, holding
the execution or making the sale of property, either personal or real,
can become a purchaser, or be interested, directly or indirectly, in any
purchase, at such sale, and every purchase so made shall be considered
fraudulent and void. When the sale is of personal property, capable
of manual delivery, it must be within view of those wno attend the
sale, and be sold in such parcels as are likely to bring the highest
price;, and when the sale is of real property, consisting of several
known lots or parcels, they must be sold separately. The judgment
debtor, if present at the sale, may also direct the order in which prop-
erty, real or personal, shall be sold, when such property consists of
several known lots or parcels, or of articles which can be sold to
advantage separately, and the sheriff or other officer must follow such
directions.

§ 339. Postponements.] When there are no bidders, or when the
amount offered is grossly inadequate, or when from any cause the sale
is prevented from taking place on the day fixed, the sheriff may post-
pone the sale for not less [more] than three days, without being required
to give any further notice thereof; but he shall not make more than
two such postponements, and such postponement must be publicly
announced when and where the sale should have taken place.

§ 340. Overplus.] When the property sells for more than the
amount required to be collected, the overplus must be paid to the
defendant, unless the officer have another execution in his hands on
which said overplus may be rightfully applied.

§ 341. New sale — additional levy — alias writ.] When property
is unsold for want of bidders, the levy still holds good ; and if there
be sufficient time it may again be advertised or the execution returned

538 Civil Actions. Code of Civil Procedure.

and one issued commanding the oflBcer to sell the property, describing
it, previously levied on, to which a clause may be added, that if sucn
property do not produce a sum sufficient to satisfy such execution, the
officer must proceed to make an additional levy, on which he shall
proceed as on other executions; or the plaintiflF may, in writing, filed
with the clerk, abandon such levy upon paying the costs thereof; in
which case execution may issue with the same effect as if none had
ever been issued.

§ 342. Purchaser's right — sheriff's certificate.] Upon a sale
of real property the purchaser is substituted to, and acquires all the
right, title, interest, and claim of the judgment debtor thereto; and
when the estate is less than a leasehold of two years' unexpired term,
the sale is absolute. In all other cases the real property is subject to
redemption as provided in this chapter. The officer must give to the
purchaser a certificate of sale, containing:

1. A particular description of the real property sold.

2. The price bid for each distinct lot or parcel.

3. The whole price paid.

4. When subject to redemption it must be so stated.

Such certificate must be executed by the officer and acknowledged
or proved, as is. or may be required by law for deeds of real property,
and may be recorded in the office of the register of deeds of the county
wherein the real property is situated; and flie same, or a certified copy
thereof, certified by such register, shall be taken ana deemed evidence
of the facts therein recited and contained.

CONFIRMATION. '

§ 343. Proceedings upon confirmation.] If the court, upon the
return of any writ of execution, for the satisfaction of which any real
property or interest therein has been sold, shall, after having carefully
examined the proceedings of the officer, be satisfied that the sale has,
in all respects, been made in conformity to the provisions of this
chapter, the court must make an order confirming the sale, and direct-
ing the clerk to make an entry on the journal, that the court is satisfied
of the legality of such sale, and an order that the officer make to the
purchaser a deed of such real property, or interest therein, at the
expiration of one year from the day of sale unless the same be
redeemed as herein provided. And the officer, after making such sale,
may retain the purchase money in his hands, until the court shall have
examined his proceedings, as aforesaid, when he must pay the same
to the person entitled thereto by order of the court.

RKDEMPTION.

§ 344. Who may redeem— redemptioner.] Property sold subject
to redemption, or any part sold separately, may be redeemed in the
manner hereinafter provided, by trie following persons, or their suc-
cessors in interest:

1. The judgment debtor, or his successor in interest.

2. A creditor having a hen by judgment or mortgage on the propertv
sold, or on some share orpart thereof, subsequent to that on whicn
the property was sold. The persons mentioned in the second sub-
division of this section are, in this chapter, termed redemptioners.

Code of Civil Procedure. Civil Actions. 589

§ 345. Payment on and period for J f he judgment debtor or
redemptioner may redeem the property from the purchaser within one
year after the sale, on paying the purchaser the amount of his pur-
chase, with twelve per cent, interest thereon, together with the amount
of any assessment of taxes which the purchaser may have paid
thereon after the purchase, and interest at the same rate on such
amount; and if the purchaser be also a creditor, having a prior lien to
that of the redemptioner, other than the judgment under which such
purchase was made, the amount of such lien, with interest.

§ 346. Successive redemptions— payments.] If property be so
redeemed by a redemptioner, another redemptioner may, within sixty
days after the last redemption, again redeem it from the last redemp-
tioner, on paying the sum paid on such last redemption, with the like
interest thereon in addition as provided by the preceding section, and
the amount of any assessment or taxes which the last redemptioner
may have paid thereon after the redemption by him, with like interest
on such amount, and, in addition, the amount of any liens held by said
last redemptioner prior to his own, with interest; but the judgment on
which the property was sold need not be so paid as a lien. Tne prop-
erty may be again, and as often as a redemptioner is so disposed,
redeemed from any previous redemptioner, within sixty days after the
last redemption, on paying the sum paid on the last previous redemp-
tion, with interest at the same rate as provided for the first redemption
in section 345, in addition, and the amount of any assessment or taxes
which the last previous redemptioner paid after the redemption by
him, with like interest thereon, and the amount of any liens other
than the judgment under which the property was sola, held by the
last redemptioner previous to his own, with interest.

§ 347. Record of redemption.] Written notice of redemption
must be given to the sheriff, and a duplicate filed with the register of
deeds of the county; and if any taxes or assessments are paid by the
redemptioner, or it he has or acquires any lien other than that upon
which the redemption was made, notice thereof must in like manner
be ^iven to the sheriff, and filed with the register of deeds; and if such
notice be not filed, the property may be redeemed without paying such
tax, assessment, or lien.

§ 348. Period for deed — debtor's right.] If no redemption be
made within one year after the sale, the purchaser or his assignee is
entitled to a conveyance; or, if so redeemed, whenever sixty days have
elapsed, and no other redemption has been made, and notice thereof
given, and the time for redemption has expired, the last redemptioner,
or his assignee, is entitled to a sheriff's deed; but in all cases the judg-
ment debtor shall have the entire period of one year from the date of
the sale to redeem the property.

§ 349. Debtor's redemption.] If the debtor redeem, he must make
the same payments as are required to effect a redemption by a redemp-
tioner. If the debtor redeem, the effect of the sale is terminated, and
he is restored to his estate. Upon a redemption by the debtor, the
person to whom the payment is made must execute and deliver to him
a certificate of redemption, acknowledged or proved before an officer
authorized, to take acknowledgments of conveyances of real property.
Such certificate must be filed and recorded in the office of the register

' ,

540 Civil Actions. Code of Civil Procedure,

of deeds of the county in which the property is situated, and the
register of deeds must note the record thereof in the margin of the
record of the certificate of sale.

% 350. Payments to whom.] The payments mentioned in the last
five sections may be made to the purchaser or redemptioner, or for
him, to the officer who made the sale.

§ 351. Requisite papers.] A redemptioner must produce to the
officer or person from whom he seeks to redeem and serve, with his
notice to the sheriff:

1. A copy of the docket of the judgment under which he claims the
right to redeem, certified by the clerk of the district court of the
county where the judgment is docketed, or, if he redeem upon a mort-
gage or other lien, a note of the record thereof certified by the register
of deeds.

2. A copy of the assignment necessary to establish his claim, verified
by the affidavit of himself, or of a subscribing witness thereto.

3. An affidavit by himself or his agent, showing the amount then
actually due on the lien.

§ 352. Use of premises- waste.] Until the expiration of the time
for redemption, the court may restrain the commission of waste on the
property, by order granted with or without notice, on the application
of the purchaser or the judgment creditor. But it is not waste for the
person in possession of the property at the time of the sale, or entitled
to possession afterwards, during the period allowed for redemption, to
continue to use it in the same manner in which it was previously used;
or to use it in the ordinary course of husbandry; or to make the neces-
sary repairs of buildings thereon; or to use wood or timber on the
property therefor; or for the repair of fences; or for fuel in his family,
while he occupies the property.

§ 353. Rents — account for.] The purchaser, from the time of the
sale until a redemption, and a redemptioner, from the time of his
redemption until another redemption, is entitled to receive from the
tenant jn possession, the rents of the property sold, or the value of the
use and occupation thereof. But when any rents or profits have been
received by trie judgment creditor or purchaser, or his or their assigns,
from the property thus sold, preceding such redemption, the amounts
of such rents and profits snail be a credit upon the redemption
money to be paid; and if the redemptioner or judgment debtor, before
the expiration of the time allowed for such redemption, demands in
writing of such purchaser, or creditor, or his assigns, a written and
verified statement of the amounts of such rents and profits thus
received, the period for redemption is extended five days after such
sworn statement is given by such purchaser or his assigns, to such
redemptioner or debtor. If the purchaser or his assigns shall, for a
period of one month from and after such demand, fail or refuse to give
such statement, such redemptioner or debtor may bring an action in
the district court of the county where the real property is situat^ed to
compel an accounting and disclosure of such rents and profits, and
until fifteen days from and after the final determination of such
action, the right of redemption is extended to such redemptioner or
debtor.

-4^

Code of Civil Procedure. Civil Actions. 641

THB SHERIFF'S DEED.

§ 354. Effect of — contents.] Upon the expiration of the period for
redemption, the proper oflBcer must make the purchaser, or the party
entitled thereto, a deed of the real property sold. The deed shall be suffi-
cient evidence of the legality of such sale, and the proceedings therein
until the contrary is proved, and shall vest in the purchaser, or other
party as aforesaid, as good and as perfect title in the premises therein
mentioned and described, as was vested in the debtor at or after the
time when such real property became liable to the satisfaction of the
judgment. And such deed or conveyance, to be made by the sheriflF or
other officer, must recite the execution or executions, or the sutetance
thereof, and the names of the parties, the amount, and date of rendi-
tion of such judgment, by virtue whereof the said real property was
sold as aforesaid, and must be executed, acknowledged, or proved, and
recorded, as is or may be provided by law to perfect the conveyance
of real property in other cases.

§ 355. Successors, same power.] If the term of service of the
sheriff, or other officer, who has made, or shall hereafter make sale
of any real property, shall expire; or, if the sheriff or other officer
shall be absent, or be rendered unable, by death or otherwise, to make
a deed or conveyance of the same, any succeeding sheriff or other
officer may execute to the purchaser or person entitled thereto, or
his legal representatives, a deed of conveyance of said real property
so sold ; and such deed shall be as good and valid in law, and nave the
same effect, as if the sheriff* or other officer, who made the sale, had
executed the same.

QBNERAL PROVISIONS.

§ 356. Printer's fees in advance.] The officer who levies upon
personal property or real property, or who is charged with the duty of
selling the same by virtue of any writ of execution, maj'^ refuse to
publisn a notice of the sale thereof by advertisement in a newspaper,
until the party for whose benefit such execution is issued, his agent or
attorney, shall advance to such officer so much money as will be
sufficient to discharge the fees of the printer for publishing such
notice. Before any officer shall be excused from publishing the notice,
as aforesaid, he must demand of the party for whose benefit the execu-
tion was issued, his agent or attorney, provided either of them reside
in the county, the amount of money for such fees.

§ 357. Effect of reversal.] If any judgment, in satisfaction of
which any real property be sold, shall at any time thereafter be
reversed, such reversal shall not defeat or affect the title of the
purchaser; but in such ca.se, restitution must be made by the judgment
creditor, of the money for which such real property was sold, with
lawful interest thereon from the day of sale.

§ 358. Principal and surety.] In all cases where judgment is
rendered upon any instrument in writing, in which two or more
persons are severally bound, and it shall be made to appear to the
court, by parol or other testimony, that one or more of saia persons so
bound, signed the same as surety or bail for his co-defendant, the
court must, in entering judgment thereon, state which of the defend-
ants is principal debtor, and which are sureties or bail. And execution

542 Civil Aotioks. Gocle of Civil Procedure.

issued on such judgfnent must command the sheriflF or other oflBcer to
cause the money to be made of the personal property, and real
property of the principal debtor, but for want of sufficient property of
the principal debtor to make the same, to cause the same to be made
of tM personal and real property of the surety or bail. In all cases
the property, both personal and real, of the principal debtor, within
the jurisdiction of the court, must be exhausted before any of the
property of the surety or bail shall be taken in execution.

§ 359. Amercement of sheriff.] If any sheriff or other officer shall
refuse or neglect to execute any writ of execution to him directed,
which has come to his hands; or to sell any personal or real property;
or to return any writ of execution to the proper court, on or before the
return day; or, on demand, to pay over to the plaintiflf, his agent or
attorney of record, all moneys by him collected or received, for the
use of said party, at any time after collecting or receiving the same
except as otherwise provided; or, on demand made by the defendant,
his agent or attorney of record, to pay all overplus received from any
sale; such sheriff or other officer shall, on motion in court and two
days' notice thereof in writing, be amerced in the amount of said debt,
damages and costs, with ten per centum thereon to and for the use of
said plaintiff or defendant, as the case may be.

§ 360. Of olebk — same.] If any clerk of a court shall neglect or
refuse, on demand made by the person entitled thereto, his agent or
attorney of record, to pay over all money by him received, in his
official capacity, for the use of such person, every such clerk may be
amerced; and the proceedings against him and his sureties shall be
the same as provided for in the foregoing section against sheriffs and
their sureties.

§ 361. Measure of same.] When the cause of amercement is for
reftising to pay over money collected as aforesaid, the said sheriff, or
other officer shall not be amerced in a greater sum than the amount so
withheld, with ten per centum thereon.

§ 362. Return of writ by mail.] When execution shall be issued
in any county, and directed to the sheriff or coroner of another county,
it shall be lawful for such sheriff or coroner having the execution, after
having discharged all the duties required of him by law, to inclose such
execution by mail, to the clerk who issued the same. On proof being
made by such sheriff or coroner, that the execution was mailed soon
enough to have reached the saia clerk within the time prescribed by
law, the sheriff or coroner shall not be liable for any amercement or
penalty, if it do not reach the office in due time.

§ 363. Proceedings against officer.] No sheriff shall forward, by
mail, any money made on such execution, unless he shall be specially
instructed to do it by the plaintiff, his agent or attorney of record. In
all cases of a motion to amerce a sheriff, or other officer, of any county
other than the one from which the execution issued, notice in writing
shall be given to such officer, as hereinbefore required, by leaving it
with him, or at his office, at least fifteen days before the first day of
the term at which such motion shall be made, or by transmitting the
notice by mail at least sixty days prior to by the first day of the term
at which such motion shall be made. All amercements so procured

Code of Civil Procedure. Civil Actions. 543

shall be entered on the record of the court, and shall have the same
force and eflfect as a judgment.

§ 364. Surety made party.] Each and every surety of any sheriff
or other officer may be made a party to the judgment rendered as afore-
said, against the sheriff or other officer, by action to be commenced
and prosecuted as in other cases; but the property, personal or real, of
any such surety, shall not be liable to be taken on execution when
sufficient property of the sheriff, or other officer, against whom execu-
tion may be issued, can be founa to satisfy the same. Nothing herein
contained shall prevent either parly from proceeding against such
sheriff or other officer by attachment or other proceeaing. at Ms
election.

§ 365. Officer's reimbursement.] In cases where a sheriff' or other
officer may be amerced, and shall not have collected the amount of the
original judgment, he must be permitted to take out executions and
collect the amount of said judgment in the name of the original plain-
tiff, for his own use.

CHAPTER XIV.

PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION.

§ 366. Discovery — debtor's appearance — examination — arrest op
DEBTOR — ANSWERS NOT EXCUSED.] 1. When an execution against prop-
erty of the judgment debtor, or any one of the several debtors in the
same judgment, issued to the sheriff of the county where he resides or
has a place of business, or, if he do not reside in the territory, to the
sheriff of the county where a judgment roll, or a transcript of a
justice's judgment for twenty-five dollars oV upwards, exclusive of
costs, is nled, is returned unsatisfied in whole or in part, the judgment
creditor, at any time after such return made, is entitled to an order
from a judge of the court, requiring such judgment debtor to appear
and answer concerning his property before such judge, at a time and
place specified in the order, within the county to which the execution
was issued.

2. After the issuing of an execution against property, and upon
proof by affidavit, of a party or otherwise, to the satisfaction of the
courfc, or a judge thereof, that any judgment debtor, residing in the
district where such judge resides, has property which he unjustly
refuses to apply towards the satisfaction of the judgment, such court
or judge may, by an order, require the judgment debtor to appear at a
specified time and place, to answer concerning the same; and such
proceedings may thereupon be had for the application of the property
of the judgment debtor towards the satisfaction of the judgment, as
are provided upon the return of an execution.

3. On an examination under this section, either party may examine
witnesses in his behalf, and the judgment debtor may be examined in
the same manner as a witness.

4. Instead of the order requiring the attendance of the judgment
debtor, the judge may, upon proof by affidavit or otherwise, to his
satisfaction, that there is danger of the debtor leaving the territory.

544 Civil Actions. ^ Code of Civil Procedure.

or concealing himself, and that there is reason to believe he has prop-
erty which lie unjustly refuses to apply to such judgment, issue a
warrant requiring the sheriff of any county where such debtor may
be, to arrest him and bring him before such judge. Upon being
brought before the judge, he may be examined on oatn, and if it then
appears that there is danger of the debtor leaving the territory, and
that he has property which he has unjustly refused to apply to such
judgment, ordered to enter into an undertaking, with one or more
sureties, that he will, from time to time, attend before the judge as he
shall direct, and that he will not, during the pendency of the proceed-
ings, dispose of any portion of his property not exempt from execution.
In default of entering into such undertaking, he may be committed to
prison by warrant of the judge, as for contempt.

5. No person shall, on examination pursuant to this chapter, be
excused from answering any questions on the ^ound that his exam-
ination will tend to convict him of the commission of a fraud; but his
answer shall not be used as evidence against him in any criminal
proceeding or prosecution. Nor shall he be excused from answering
any question on the ground that he has, before the examination,
executed any conveyance, assignment, or transfer of his property for
any purpose, but his answer shall not be used as evidence against him
in any criminal proceeding or prosecution.

§ 367. Debtor's debtor.] After the issuing of execution against
property, any person indebted to the judgment debtor may pay to the
sheriff the amount of his debt, or so much thereof as shall be neces-
sary to satisfy the execution, and the sheriff's receipt shall be a
sufficient discharge for the amount so paid.

§ 368. Examination of same.] After the issuing or return of an
execution against property of the judgment debtor, or of any one of
several debtors in the same judgment, and upon an affidavit that any
person or corporation has property of such judgment debtor, or is
indebted to him in an amount exceeding ten dollars, the judge may,
by an order, require such person or corporation, or any officer or
member thereof, to appear at a specified time and place, and answer
concerning the same. The judge may also, in his discretion, require
notice of such proceeding to be given to any party to the action in
such manner as may seem to him proper. The proceedings mentioned
in this section, and in section 366, may be taken upon the return of
an execution unsatisfied, issued upon a judgment recovered in an action
against joint debtors, in which some of the defendants have not been
served with the summons by which said action was commenced, so far
as relates to the joint property of such debtors; and all actions by
creditors to obtain satisfaction of judgments out of the property of
joint debtors are maintainable in the like manner and to the like effect.
These provisions shall apply to all proceedings and actions now

Sending, and -not actually terminated by any final judgment or
ecree.

§ 369. Witnesses.! Witnesses may be required to appear and
testify on any proceeding under this chapter, in the same manner as
upon the trial of an issue.

§ 370. Referee — answers on oath.[ The party or witness may be
required to attend before the judge, or before a referee appointed by the

Code of Civil Procedure. Civil Aotiokb. 545

court or judge; if before a referee, the examination shall be taken by
the referee, and certified to the judge. All examinations and answers
before a judge or referee, under this chapter, shall be on oath, except
that when a corporation answers, the answer shall be on the oath of
an officer thereof.

§ 371. Propeety applibd — wages exempt.] The judge may order
any property of the judgment debtor, not exempt from execution, in
the hands either of himself or any other person, or due the judgment
debtor, to be applied towards the satisfaction of the judgment; except
that the earnings of the debtor for his personal services, at any time
within sixty days next preceding the order, cannot be so applied when
it is made to appear by the debtor's affidavit or otherwise, that such
earnings are necessary for the use of a family supported wholly or
partly oy his labor.

§ 372. Recbivbr^-rbsteaint op propbety teansfbbs — RECORD.] The
juage may also, by order, appoint a receiver of the property of the
judgment debtor, in the same manner, and with the like authority, as if
the appointment was made by the court, accordiuR to section 219.
But before the appointment of such receiver, the judj^e shall ascertain,
if practicable, by the oath of the party, or otherwise, whether any
other supplementary proceedings are pending against the judgment
debtor, and if such proceedings are so pending, the plaintiff therein shall
have notice to appear before him, and shall likewise have notice of
all subsequent proceedings in relation to said receivership. No more
than one receiver of the property of a iudgment debtor shall be
appointed. The judge may also, hj order, lorbid a transfer or other
disposition of the property of the judgment debtor not exempt from
execution, and any interference therewith. Whenever the judge shall
. grant an order for the appointment of a receiver of the property of
the judgment debtor, the same shall be filed in the office of the clerk
of the court where the judgment roll in the action or transcript from
justice^s jud^ent, upon which the proceedings are taken, is filed; and
the said ciem shall record the order in a book to be kept for that pur-
pose in his office, to be called "Book of orders appointing receivers of
judgment debtors*," and shall note the time of filing of said order
therein. A certified copy of said order shall be delivered to the receiver
named therein, and he shall be vested with the property and effects of
the judgment debtor from the time of the filing and re(;ording of the
order as aforesaid. The receiver of the judgment debtor shall be sub-
ject to the direction and control of the court in which the judgment
was obtained upon which the proceedings are founded. But before
he shall be vested with any real property of such judgment debtor, a
certified copy of said order shall also be filed and recorded in the office
of the register of deeds of the county in which any real estate of such
judgment debtor sought to be affected by such order is situated, and
also in the office of tne register of deeds of the county in which such
judgment debtor resides.

§ 378. Adversb claims — prooebdings on.] If it appear that a per-
son or corporation alleged to have property of the judgment debtor,
or indebted to him, claims an interest in the property adverse to
him, or denies the debt, such interest or debt shall be recoverable only
in an action against such person or corporation by the receiver; but
a5

546 Civil Actions. Code of Civil Procedure.

the judge may, by order, forbid a transfer or other disposition of such
property or interest, till a suflScient opportunity be given to the receiver
to commence the action, and prosecute the same to judgment and
execution; but such order may be modified or dissolved by the judge
granting the same, at any time, on such security as he shall direct.

§ 374. Referbk — appointment.] The judge may, in his discretion,
order a reference to a referee agreed upon by the parties, or appointed
by him, to report the evidence or the facts, and, may in his discretion,
appoint such referee in the first order, or at any time.

§ 375. Witness' fees — disbursements.] The judge may allow to
the judgment creditor, or any party so examined, whether a party to
the action or not, witness' fees and disbursements.

§ 376. Disobedience — contempt.] If any person, party, or witn^s,
disobey an order of the judge or referee, duly served, such person, party,
or witness, may be punished by the judge as for a contempt. And in
all cases of commitment under this chapter, the person committed
may, in case of inability to perform the act required, or to endure the
imprisonment, be discharged from imprisonment by the court or judge
committing him, or the court in which the judgment was rendered, on
such terms as may be just.

CHAPTER XV.

OF THE COSTS AND DISBURSEMENTS IN CIVIL ACTIONS.

§ 377. Fees by agreement.] The amount of fees of attomevs,
solicitors and counsel, in civil and criminal actions must be left to the
agreement, express or implied, of the parties.

§ 378. Same in written instrument.] When by the terms of any
written instrument, it appears that the debtor has made a written
contract for the allowance of attorney's fees, the same must be
allowed by the court, in conformity to the instrument, and must form
a part of the judgment and be incorporated therein.

§ 379. Costs taxed in judgment.] In all actions -and special pro-
ceedings, the clerk must tax as a part of the judgment, in favor of the
prevailmg party, the allowance of his witnesses', the jury, officers'
and printers' fees, the compensation of referees, and the necessary
expenses of taking depositions, and procuring necessary evidence.

§ 380. Ai^PEAL PROM same.] Any person aggrieved by the taxation
of costs may appeal therefrom to the court or a judge thereof.

§ 381. Costs limited by damages — several actions.] In an action
for assault, battery, false imprisonment, libel, slander, malicious prose-
cution, criminal conversation, or seduction, if the plaintiff recover less
than fifty dollars damages, he shall recover no more costs than
damages. And in an action to recover the possession of personal prop-
erty, if the plaintiff recover less than fifty dollars damages, he shall
recover no more costs than damages, unless he recovers also property,
the value of which, with the damages, amounts to fifty dollars, or the
possession of property be adjudged to him, the value of which, with
the damages, amounte to fifty dollars; such value must be determined
by the jury, court, or referee, by whom the action is tried. When several

Code of Civil Procedure. Civil Actions. 547

actions shall be brought on one bond, recognizance, promissory note,
bill of exchange, or other instrument in writing, or m any other case
for the same cause of action, against several parties who might have
been joined as defendants in the same action, no costs shall w allowed
to the plaintiff in more than one of such actions, which must be at his
election; Provided^ That the party or parties proceeded against in
such action or actions, shall, at the time of the commencement of the
previous action or actions, have been openly within this territory, and
not secreted.

§ 382. Costs to certain dependants.] In all actions where there
are several defendants, not united in interests, and making separate
defenses by separate answers, and the plaintiff fails to recover judg-
ment against all, the court may award costs to such of the defetxdants^
as have judgment in their favor.

§ 383. DiscBETiON OF COURT.] lu the following cases the costs of an
appeal must be in the discretion of the court:

1. When a new trial shall be ordered.

2. When a judgment shall be affirmed in part and reversed in part.
§ 384. Against attempting party.] When an action is dismissed

from any court for want of jurisdiction, or because it has not been
regularly transferred from an inferior to a superior court, the costs
must be adjudged against the party attempting to institute or bring
up the action.

§ 385. On APPEAiiS.] Costs must be allowed to the prevailing party
in jud^ents rendered on appeal from justices' courts, in all cases,
including his costs taxed in the court below.

§ 386. Interest.] When the judgment is for the recovery of
money, interest, from the time of the verdict or report until judgment
be finally entered, must be computed by the clerk and added to the
costs of the party entitled thereto.

§ 387. Notice oir taxing costs — verification— items. The clerk
must insert in the entry of judgment, on the application of the prevail-
ing party, upon five days' notice to the other, except when the attor-
neys reside in the same city, village, or town, and then, upon two
days' notice, the sum of the allowances for cosi^, as provided by this
code. The costs must be stated in detail and verified by affidavit of
the party or his attorney, stating in substance that the items of
costs have been, or will necessarily be, incurred in the action or pro-
ceeding. A copy of the items of the costs and affidavit must be served
with a notice of adjustment. Whenever it shall be necessary to adjust
costs in any interlocutory proceeding in an action, or in any special pro-
ceeding the same shall be adjusted by the judge before whom the same
be heard, or the court before which the same may be decided or pend-
ing, or in such other manner as the judge or court may direct.

8 388. Referees' fees.] The fees of referees shall be three dollars
to each, for every day spent in the business of the reference; but the
parties may agree in writing upon any other rate of compensation.

§ 389. Costs op postponement.] When an application is made to
a court or referee to postpone a trial, the payment of costs occasioned
by the postponement, may be imposed, in the discretion of the court or
referee, as a condition of granting the same.

548 Civil Actions. Code of Civil Procedure.

§ 390. Of infant plaintiff by guardian.] When costs are adjudged
against an infant plaintiff, the guardian, by whom he appeared in the
action, must be responsible therefor, and payment thereof, may be
enforced by attachment.

§ 391. Of trustee from trust funds.] In an action prosecuted or
defended by an executor, administrator, trustee of an express trust, or
a person expressly authorized by statute, costs shall be recovered, as
in an action by and against a person prosecuting or defending in his
own right; but such costs must, by the judgment, be chargeable only
upon, or collected of, the estate, fund, or party represented, unless the
court shall direct the same to be paid by the plaintiff or defendant
personally, for mismanagement or Dad faith in such action or defense.

§ 392. AlOainst territory — exception.] In all civil actions prose-
cuted in the name of the territory, by an officer duly authorized for
that purpose, the territory shall be liable for the costs in the same
cases and to the same extent as private parties. If a private person be
joined with the territory as plaintiff, he shall be liable in the first
iiistance for the defendant's costs, which shall not be recovered of the
territory until after execution be issued therefor against such private
party and returned unsatisfied.

§ 393. To PARTY in interest.] In an action prosecuted in the name
of- the territory, for the recovery of money or property, or to establish
a right or claim for the benefit of any county, city^ town, village, cor-
poration, or person, costs awarded against the party plaintiff ^all be
charged against the party for whose teneflt the action was prosecuted^
and not against the territory.

§ 394. Costs taxed to assignee.] In actions in which the cause of
action shall, by assignment, after the commencement of the action, or
in any other manner, become the property of a person not a party to
the action, such person shall be liable for the costs in the same manner
as if he were a party, and payment thereof may be enforced by
attachment.

§395. On change of venue.] Whenever a change of venue is
granted in any case pending in the district courts, aU the costs and
fees paid by the county to which the. case is ordered for trial shall be
charged to the county from which such case is sent.

§ 396. Account for same.] The board of county commissibners of
the county to which any case is ordered for trial, as provided by this
code, must make out and present for payment to the county from
which such case is sent, an itemized bill of all the costs and fees of the
trial of such case, paid by the county according to law; said bill must
be sworn to by the county clerk, and the board of county commis-
sioners receiving such bill or account must examine the same and pay
the whole thereof, or so much as is legal, proper, and correct.

§ 397. Surety for by non-resident.] In cases in which the
plaintiff is a non-resident of the territory or a foreign corporation,
before commencing such action, the plaintiff must furnish a sufficient
surety for costs. The surety must be a resident of the county or sub-
division where the action is to be brought, and must be approved by
the clerk. His obligation shall be complete by simply endorsing the
summons, or signing his name on the complaint as security for costs.

Code of Civil Procedure, Citil Actions. 549

§ 398. Responsibility OP.] He shall be bound for the payment of
all costs which may be adjudged against the plaintiff in the court in
which the action is brought, or in any other to which it may be
carried, and for costs of the plaintiff's witnesses, whether the plaintiff
obtain judgment or not.

§ 399. Dismissal.] An action in which security for costs is required
by the last section, and has ]:iot been given, shall be dismissed on the
motion and notice by the defendant at any proper time before judg-
ment, unless in a reasonable time, to be allowed by the court, such
security for costs be given.

§ 400. Plaintiff becoming non-resident.] If the plaintiff' in an
action, after its commencement, become a non-resident of the territory,
he shall give security for costs in the manner and under the restrictions
provided in the two preceding sections.

§ 401. Additional sbcuritt.] In an action in which security for
costs has been given, the defendant may at any time before judgment,
after reasonable notice to the plaintiff, move the court for additional
security on the part of the plaintiff; and if^ on such motion, the court
be satisfied that the surety has removed from this territory, or is not
sufficient, the action may be dismissed, unless in a reasonable time, to
be fixed by the court, sufficient surety be given by the plaintiff'.

§ 402. Judgment against surety.] After final judgment has been
rendered in an action, in which security for costs has been given, as
required by this chapter, the court, on motion of the defendant, or any
other person having a right to such costs or any part thereof, after ten
days' notice of such motion, may enter up judgment in the name of
the defendant or his legal representatives, against the surety for costs,
his executors or administrators, for the amount of the costs adjudged
against the plaintiff, or so much thereof as may be unpaid. Execution
may be issued on such judgment, as in other cases, for the use and
benefit of the person entitled tiO such costs.

CHAPTER XVI.

OF appeals in civil actions.

§ 403. Chapter governs.] The modes of reviewing a judgment or
order in a civil action, shall be those prescribed by this chapter.

§404. Order without notice.] An order made out of court,
without notice to the adverse party, may be vacated or modified,
without notice, by the judge who made it, or may be vacated or
modified on notice in the manner in which other motions are made.

§ 405. Appeals allowed.] Any party aggrieved may appeal in the
cases prescribed in section twenty-two of this code.

§ 406. Parties — how termed.] The party appealing is known as
the appellant, and the adverse party as the respondent, but the title of
the action must not be changed in consequence of the appeal.

§ 407. Notice op appeal— amendment — service op notice.] An
appeal must be made*

550 Civil Aotions. Code of Civil Procedure.

1. By the service of a notice in writing on the adverse party or his
attorney, and on the clerk with whom the judgment or order appealed
from is entered, stating the appeal from the same, or some specified
part thereof.

2. When a party shall, in good faith, give notice of an appeal from
a judgment or order, and shau omit, through mistake, to do any other
act necessary to perfect the appeal or to stay proceedings, the court
may permit an amendment on such terms as may be just.

3. If service of the notice of appeal upon the attorney for the
adverse party cannot, with due diligence, be made within the territory
in the manner prescribed by this code, the notice of appeal may be
served, and notice of the subsequent proceedings may be given to him,
in such manner as the court or a judge thereof shall direct.

§ 408. Transmission of papers.] If the appellant do not, within
twenty days after his appeal is perfected, cause a certified copy of the
notice of appeal and of the judgment roll, or if the appeal be from an
order or any part thereof, a certified copy of such order and the papers
upon which tne order was granted, to be transmitted to the supreme
court by the clerk with whom the notice of appeal is filed, the respond-
ent may cause such certified copy to be transmitted by such clerk to
the supreme court, and recover the expenses thereof as costs on such
appeal, in case the judgment or order appealed from be in whole or in
part affirmed.

§ 409. Dismissal upon failure.] If the appellant fail to cause the
requisite papers to be transmitted to the supreme court, as required
by the preceding section and the rules of the court, the appeal may
be dismissed.

§ 410. Effect of.] The dismissal of an appeal is, in effect, an
affirmance of the judgment or order appealed from, unless the dismissal
be expressly made without prejudice to another appeal.

§ 411. What reviewable on appeal.] Upon an appeal from a
judgment the supreme court may review any verdict, decision, or
intermediate order, involving the merits and necessarily affecting the
judgment.

§ 412. Power of supreme court.] Upon an appeal from' a judgment
or order, the supreme court may reverse, affirm, or modify the judg-
ment or order appealed from, in the respect mentioned in the notice
of appeal, and as to any or all of the parties, and may, if necessary or
proper, order a new trial. When the judgment is reversed or modified,
the supreme court may make complete restitution of all property and
rights lost by the erroneous judgment so far as such restitution is con-
sistent with any rights of purchasers at sheriff 's sale.

§ 413. Time for appeals.] The appeal to the supreme court under
subdivision two of section twenty-two of this code, must be taken
within sixty days after written notice of the order shall have been
given to the party appealing; every other appeal allowed must be
taken within two years after the judgment shall be perfected by filing
the judgment roll.

§ 414. Undertaking required.] To render an appeal effectual for
any purpose, a written undertaking must be executed on the part of
the appellant, by at least two sureties, to the effect that the api>ellant
will pay all costs and damages which may be awarded against him on

Code of Civil Procedure. Civil Actions. 551

the appeal, or on a dismissal thereof, not exceeding two hundred and
fifty dollars; or that sum must be deposited with the clerk with whom
the judgment or order was entered, to abide the event of the appeal.
Such undertaking or deposit may be waived by a written consent on
the part, of the respondent.

§ 415. Stay of execution — additional security — deposit.] If an
appeal be from a judgment directing the payment of money, it does not
stay the execution of the judgment unless a written undertaking be exe-
cuted on the part of the appeliant by at least two sureties, to tne effect
that, if the judgment appealed from, or any part thereof, be affirmed,
or the appeal be dismissed, the appellant will pay the amount directed
to be paid by the judgment, or the part of such amount as te which
the judgment shall be affirmed, if it be affirmed only in part, and all
damages and costs which shall be awarded against the appellant upon
the appeal. Whenever it shall be made satisfactorily to appear to the
court that since the execution of the undertaking the sureties have
become insolvent, the court may, by rule or order, require the appellant
to execute, file, and serve a new undertaking as above; and in case of
neglect to execute such undertaking within twenty days after the
service of a copy of the rule or order requiring such new undertaking,
the appeal may, on motion to the court, be dismissed with costs.
Whenever it shall be necessary for a party to any action or proceeding
to give a bond or an undertaking, with surety or sureties, he may, in
lieu thereof, deposit with the omcer or into court, as the case may
require, money to the amount for which such bond or undertaking is
to DC given. The court in which such action or proceeding is pending
may direct what disposition shall be made of such money, pending
the action or proceeding. In any case where, by this section, the
money is so deposited with an officer, a judge ot the court, at special
term, or at chambers, upon the application of either party, may, before
such deposit, if made, order it to be deposited in court instead of with
such officer; and a deposit made pursuant to such order shall be of
the same effect as if made with such officer.

§ 416. Judgment to assign or deliver documents.] If the judg-
ment appealed from direct the assignment or delivery of documents
or personal property, the execution of the judgment shall not be
stayed by appeal, unless the things required to be assigned or delivered
be brought into court, or placed in the custody of such officer or
receiver as the court shall appoint, or unless an undertaking be
entered into on the part of the appellant, by at least two sureties, and
in such amount as the court, or judge thereof, shall direct, to the
effect that the appellant will obey the order of the appellate court
upon the appeal.

§417. To execute conveyance.] If the judgment appealed from
direct the execution of a conveyance or other instrument, the execu-
tion of the judgment shall not be stayed by the appeal until the
instrument snail have been executed and deposited with the clerk
with whom the judgment is entered, to abide the judgment of the
appellate court.

§ 418. To SELL AND DELIVER REALTY.] If the judgment appealed
from direct the sale or delivery of possession of real property, the
execution of the same must not be stayed, unless a written under-

552 ' CrviL Actions. Code of Civil Procedure.

taking be executed on the'part of the appellant, with two sureties, to
the effect that during the possession of such property by the appellant
he will not commit, or suffer to be committea, any waste thereon, and
that if the judgment be affirmed, or the appeal be dismissed, he will pay
the value of the use and occupation of the property, from the time of
the appeal until the delivery of possession thereof, pursuant to the
judgment, not exceeding a sum to be fixed by a judge of the court by
which judgment was rendered, and which must be specified in the
undertaking. When the judgment iS for the sale of mortgaged
premises, and the payment of a deficiency arising upon the sale, the
undertaking must also provide for the payment oi such deficiency.

§419. Effect OP perfected appeal — security limited.] When-
ever an appeal is perfected, as provided in sections 416, 416, 417, and
418, it stays all further proceedings in the court below upon the judg-
ment appealed from, or upon the matter embraced therein, but the
court below may proceea upon any other matter included in the
action and not effected by the judgment appealed from. And the
court below may, in its discretion, dispense with or limit the security
required by sections 415, 416, and 418, when the appellant is an
executor, administrator, trustee, or other person acting in another's
right; and may also limit such security to an amount not less than
fifty thousand dollars, in the cases mentioned in sections 416, 417 and
418, where it would otherwise, according to those sections, exceed
that sum.

§ 420. Service op undertakings.] The undertakings prescribed by
sections 414, 415, 416 and 418, may be in one instrument or several, at
the option of the appellant; and a copy, including the names and resi-
dence of the sureties, must be served on the adverse party, with the
notice of appeal, unless a deposit be made as provided in section 414,
and notice thereof given.

§ 421. Justification — notice — exceptions.] An undertaking upon
an appeal shall be of no effect, unless it be accompanied by the affi-
davit of the sureties that they ar^ each worth double the amount
specified therein. The respondent may, however, except to the suffi-
ciency of the sureties, within ten days after the notice of the appeal;
and unless they or other sureties justify before a judge of the court
below, as prescribed by sections 165 and 166, within ten days there-
after, the appeal must be disregarded as if no undertaking had been
§iven. The justification must be upon a notice of not less than
ve days.

§ 422. Other cases — perishable property.] In the cases not
provided for in sections 415, 416, 417, and 418, the perfecting of an
appeal, by giving the undertaking mentioned in section 414, shall stay
proceedings in the court below, upon the judgment appealed from,
except that where it directs the sale of perishable property, the court
below may order the property to be sold, and the proceeds thereof to
be deposited or invested, to abide the judgment of the appellate
court.

§ 423. Filing.] The undertaking must be filed with the clerk with
whom the judgment or order appealed from was entered.

§ 424. Special and summary procbedinos.] The provisions of this
chapter as to the security to be given upon appeals, and as to the stay

t

Code of Civil Procedure. Civil Actions. 663

•

of proceedings, shall apply to appeals taken under subdivision three of
section twenty-two of this code.

§ 425. Other appeals.] In addition to the appeals provided for in
this chapter, and section twenty-two of this code, writs of error shall
be allowed on all final decisions of the district courts to the supreme
court under such regulations as may be prescribed by the rules or
practice of the supreme court.

CHAPTER XVII.

proceedings against joint debtors, heirs, devisees, legatees, and

tenants holding under a judgment debtor.

§ 426. Summons after judgment.] When a judgment shall be
recovered aeainst one or more of several persons jointly indebted upon
a contract, by proceeding as provided in section 105, those who were
not orijSfinally summoned to answer the complaint, and did not appear
in the action, may be summoned to show cause why they should not
be bound by the judgment in the same manner as if they had been
originally summoned.

§ 427. Requisites of same.] The summons provided in the pre-
ceding section must be subscribed by the judgment creditor, or his
attorney must describe the judgment, and require the person
summoned to show cause within thirty days after tne service of the
summons; and must be served in like manner as the original summons.
It is not necessary to file a new complaint.

§ 428. Affidavit.] The summons must be accompanied by an
affidavit of the person subscribing it, that the judgment has not been
satisfied, to his knowledge or information and belief, and must specify
the amount due thereon.

§ 429. Defense.] Upon such summons the party summoned may
answer within the time specified therein, denying the judgment or
setting up any defense which may have arisen subseciuently ; and he
may make the same defense which he might have originally made to
the action, except the statute of limitations.

§ 430. Further pleadings.] The party issuing the summons may
demur or reply to the answer, and the party summoned may demur to
to the reply; and the issues may be tried and judgment may be given
in the same manner as in an action, and enforced by execution: or, the
application of the property charged to the payment of the judgment,
may be compelled by attachment, if necessary.

§ 431. Pleadings verified.] The answer and reply must be verified
in the like cases and manner, and be subject to the same rules, as the
answer and reply in an action.

554 Civil Actions. Code of Civil Procedure.

CHAPTER XVIII.

OFFER OF THE DEFJBNDANT TO COMPROMISE THE WHOLE OR A PART OF THE

ACTION.

*

§ 432. Judgment offered — effect.] The defendant may at any
time before the trial or verdict, serve upon the plaintiff, an offer in
writing to allow judgment to be taken against him for the sum or
property, or to the effect therein specified, with costs. If the plaintiff
accept the offer, and give notice thereof in writing within ten days, he
may file the summons, complaint, and offer, with an afiidavit of notice
of acceptan<5e, and the court or judge thereof must, thereupon, order
judgment accordingly. If the notice of acceptance be not given, the
offer is to be deemed withdrawn, and cannot be given in evidence;
and if the plaintiff' fail to obtain a more favorable judgment, he
cannot recover costs, but must pay the defendant's costs from the time
of the offer.

§ 433. By plaintiff to countbr-olaim.] If the defendant set up a
counter-claim in his answer, to an amount greater than the plaintiff's
claim, or sufficient to reduce the plaintiff's recovery below fifty dollars,
then the plaintiff may serve upon the defendant an offer, in writ-
ing, to allow judgment to be taken against him for the amount
specified, or to allow said counter-claim to the amount specified with
costs. If the defendant accept the offer, and give notice thereof in
writing, within ten days, he- may enter judgment as above, for the
amount specified, if the offer entitle him to judgment, or the amount
specified m said offer shall be allowed him in the trial of the action.
If the notice of acceptance is not given, the offer is deemed to be
withdrawn, and cannot be given in evidence; and if the defendant fail
to recover a more favorable judgment, or to establish his counter-claim
for a greater amount than is specified in said offer, he cannot recover
costs, but must pay plaintiff's costs from the time of the offer.

§ 434. Proffer of fixed damages.] In an action arisiuff on con-
tract, the defendant may, with his answer, serve upon the plaintiff an
offer in writing, that if he fail in his defense, the damages be assessed
at a special sum ; and if the plaintiff signify his accepteruce thereof in
writing, with or before the notice of trial, and on the trial, have a
verdict, the damages must be assessed accordingly.

% 435. Plaintiff refusing — proof — costs.] If the plaintiff do not
accept the offer, he must prove his damages as if it had not been
made, and shall not be permitted to give it in evidence. And if the
damages in his favor do not exceed the sum mentioned in the offer,
the defendant shall recover his costs incurred in consequence of any
necessary preparations or defense in respect to the question of
damages.

Code of Civil Procedure. Civil Actions. 566

CHAPTER XIX.

ADMISSION OR INSPECTION OF WRITINGS.

§ 436. Exhibit and refusal — costs.] Either party may exhibit to
the other, or to his attorney, at any time before the trial, any paper,
material to the action, and request an admission in writing of its
genuineness. If the adverse party, or his attorney, fail to give the
admission within four days after the request, and if the party exhibit-
ing the paper be afterwards put to costs in order to prove its genuine-
ness, and the same be finally proved or admitted on the trial, such
costs must be paid by the party refusing the admission, unless it
appear to the satisfaction of tne court that there were good reasons for
the refusal.

§ 487. Copy op documents — penalty.] The court before which an
action is pending, or a judge thereof, may in its or his discretion, and
upon due notice, order either party to give to the other, within a
specified time, an inspection and copy, or permission to take a copy, of
any books, papers and documents, m his possession or under his con-
trol, containing evidence relating to the merits of the action, or the
defense therein. If compliance with the order be refused, the court
may, on motion, exclude the paper from being given in evidence, or
punish the party refusing, or botn.

CHAPTER XX

examination of parties.

§ 438. Action fob discovery.] No action to obtain discovery under
oath, in aid of the prosecution or defense of another action, shall be
allowed, nor shall any examination of a party be had on behalf of the
adverse party, except in the manner prescribed by this chapter.

§ 439. Adversary a witness.] A party to an action may be exam-
ined as a witness, at the instance of the adverse party, or any of
several adverse parties, and for that purpose may be compelled, in the
same manner, and subject to the same rules of examination, as any
other witness, to testify, either at the trial, or conditionally, or upon
commission.

§ 440. Examination before trial.] The examination, instead of
being had at the trial, as provided in the last section, may be had at
any lime before the trial, at the option of the party claiming it, before
a judge of the court, on a previous notice to the party to be examined,
and any other adverse party, of at least five days, unless, for good
cause shown, the judge order otherwise. But the party to be exam-
ined shall not be compelled to attend in any other county than that of
his residence, or where he may be served with a summons for his
attendance.

§ 441. Attendance — examination filed.] The party to be exam-
ined, as in the last section provided, may be compelled to attend in the
same manner as a witness who is to be examined conditionally; and

566 Civil Actions. Code of Civil Procedure.

the examination shall be taken and filed by the judge in like manner,
and may be read by either party on the trial.

§ 442. Rebuttal.] The examination of the party, thus taken, may
be rebutted by adverse testimony.

§ 443. Refusal to testify contempt.] If a party refuse to attend
and testify, as in the last four sections provided, he may be punished
as for a contempt, and his complaint, answer, or reply, may be stricken
out.

§ 444. Same on own behalf.] A party examined by an adverse party,
as in this chapter provided, may be examined on his own behalf, sub-
ject to the same rules of examination as other witnesses.

§ 445. Beneficiary examined.] A person for whose immediate
benefit the action is prosecuted or defenaed, though not a party to the
action, may be examined as a witness in the same manner, and subject
to the same rules of examination, as if he were named as a party.

CHAPTER XX r.

witnesses and evidence.

§ 446. Not excluded except — husband and wife — decedent's state-
ment.} No person oflFered as a witness in any action or special
proceeding, in any court, or before any officer or person having
authority to examine witnesses or hear evidence, shall be excluded or
excused, by reason of such person's interest in the event of the action
or special proceeding; or because such person is a party thereto; or
because such person is the husband or wife of a party thereto; or of
any person in whose behalf such action or special proceeding is brought,
prosecuted, opposed, or defended, except as hereinafter provided:
lw.\lA,\i^ 1. A husband cannot be examined for or against his wife without
her consent; nor can either, during the marriage or afterwards, be,
without the consent of the other, examined as to any communication
made by one to the other during the marriage; but this section does
not apply to a civil action or proceeding by one against the other, nor
to a*^ criminal action or proceeding for a crime committed by one
against the other.

2. In civil actions or proceedings by or against executors, adminis-
trators, heirs at law, or next of kin, in which judgment may be
rendered, or order entered for or against them, neither party shall be
allowed to testify against the other, as to any transaction whatever
with, or statement by, the testator or intestate, unless called to testify
thereto by the opposite party.

But if the testimony of a party to the action or proceeding has been
taken, and he shall afterwards die, and after his death the testimony
so taken shall be used upon any trial or hearine in behalf of his
executors, administrators, neirs at law, or next of kin, then the other
party shall be a competent witness, as to any and all matters to which
the testimony so taken relates.

Code of Civil Procedure. Civil Actions. 657

MEANS OF PRODUCING WITNESSES.

§.447. SuBPCENAs ISSUE BY WHOM.] Clerks of the supreme and
district courts, the judges thereof, notaries public, justices of the
peace, and referees shall, on the application of any person having a
cause or any matter pending in court, or before any such officer or
tribunal, issue a subpoena for witnesses, inserting all the names
required by the applicant in one subpoena, which may be served by
any person not interested in the action, or by the sheriff, coroner, or
constable; but when served by any person other than a public officer,
proof of service shall be shown by affidavit; but no costs of serving
the same shall be allowed except when served by an officer.

§ 448. Requisites op.] The subpoena shall be directed to the
person therein named, requiring him to attend at a particular time
and place, to testify as a witness; and it may contain a clause directing
the witness to bring with him any book, writing, or other thing under
his control, which he is bound by law to produce as evidence.

§ 449. Depositions.] When the attendance of the witness before
any officer, authorized to take depositions, is required, the subpoena
may be issued by such officer.

§ 450. How SERVED.] The subpoena shall be served either by reading
or by copy, delivered to the witness, or left at his usual place of resi-
dence; but such copy need not contain the name of any other witness.

§ 451. Where witness not required to attend.] A witness shall not
be obliged to attend for examination on the trial of a civil action, except
in the county of his residence, nor to attend to give his deposition out
of the county where he resides, or where he may be when the subpoena
is served upon him.

§ 452. Fees witness may demand.] A witness may demand his
traveling fees, and fee for otie day's attendance, when the subpoena is
served upon him, and if the same be not paid, the witness shall not be
obliged to obey the subpoena. The fact of such demand and non-pay-
ment shall be stated in the return.

§ 453. Disobedience contempt.] Disobedience of a subposna, or a
refusal to be sworn, or to answer as a witness, or to subscribe a deposi-
tion, when lawfully ordered, may be punished as a contempt of the
court or officer, by whom his attendance or testimony is required.

§ 454. Attachment for.] When a witness fails to attend in obedi-
ence to a subpoena, except in case of a demand and failure to pay his fees,
the court or officer before whom his attendance is required, may issue
an attachment to the sheriff, coroner, or constable of the county, com-
manding him to arrest and bring the person therein named before the
court, or officer, at a time and place to be fixed in the attachment, to give
his testimony and answer for the contempt. If the attachment be
not for immediately bringing the witness before the court or officer, a
sum may be fixed in which the witness may give an undertaking with
surety for his appearance. Such sum shall Be indorsed on the back
of the attachment, and if no such sum is fixed and indorsed, it shall
be one hundred dollars. If the witness be not personally served, the
court may, as a rule, order him to show cause why an attachment
should not issue against him.

/

558 Civil Actions. Code of Civil Procedure.

§ 455. Punishment foe disobbdienob,] The punishment for the
said contempt shall be as follows: When the witness fails to attend,
in obedience to the subpoena, except in case of a demand and failure to
pay his fees, the court or officer may fine the witness in a sum "not
exceeding fifty dollars. In other cases, the court or officer may fine a
witness in a sum not exceeding fifty nor less than five dollars, or may
imprison him in the county jau, there to remain until he shall submit
to be sworn, testify, or give his deposition. The fine imposed by the
court, and that imposed by the officer, shall be paid into the common
school fund of the county. The witness shall also be liable to the
paxty injured, for any damages occasioned by his failure to attend, or
nis refusal to be sworn, testify, or cive his deposition.

§ 456. Judge mat disohabge.] A witness so imprisoned by an officer
before whom his deposition is being taken, may apply to a judge of the
district court, who shall have power to discharge him, if it appear that
his imprisonment is illegal.

§ 45* Requisites op weit and commitment.] Every attachment for
the arrest or order of copimitment to prison of a witness, by a court
or officer, pursuant to this chapter, must be under the seal of the court
or officer, if he have an official seal, and must specify particularly the
cause of the arrest or commitment; and if the commitment be for
refusing to answer a question, such question must be stated in the
order. Such order of commitment may be directed to the sheriff, cor-
oner, or any constable of the county where such witness resides or may
be at the time, and shall be executed by commiting him to the jail of
such county, and delivering a copy of the order to the jailer.

§ 458. Examination of prisoner.] A person confined in any prison
in this territory may, by order of any court, be required to be produced
for oral examination in the county where he is imprsioned; but in all
other cases his examination must be by deposition.

§ 459. Remains in custody.] While a prisoner's deposition is being
taken, he shall remain in the custody of the officer having him in
charge, who shall afford reasonable facilities for the taking of the
deposition.

I 460. Witness free from suit in other county.] A witness shall
not be liable to be sued in a county in which he does not reside, by
being served with a summons in such county while going, returning, or
attending in obedience to a subpoena.

§ 461. Daily fees.] At the commencement of each day after the
first day, a witness may demand his fees for that day's attendance, in
obedience to a subpoena, and if the same be not paid, he shall not be
required to remain.

§ 462. Oath of witness.] Before testifying, the witness must be
sworn to testify as follows:

You do solemnly swear that the evidence you shall give relative to the matter in difference

now in Liearlug, between , plaintiff, and , defendant, shall be the truth,

the whole truth, and nothing but the truth. So help jou God.

Any witness who is conscientiously scrupulous of taking the oath
above described, shall be allowed to make affirmation, substituting for
the words **So help you God,'' at the end of the oath, the. following:
" This you do affirm under the pains and penalties of perjury."'

Code of Civil Procedure. Civil Aotiokb. 659

MODE OF TAKING THE TESTIMONY OP WITNESSES.

§ 463. Three modes.] The testimony of witnesses is taken in
three modes:

1. By affidavit.

2. By deposition.

3. By oral examination.

§ 464. Affidavit.] An affidavit is a written declaration under
oath, made without notice to' the adverse party.

§ 465. Deposition.] A deposition is a written declaration under
oath, made upon notice to the adverse party for the purpose of
enabling him to attend and cross-examine; or upon written inter-
rogatories.

I 466. Oral examination:] An oral examination is an examination

in the presence of the jury or tribunal which is to decide the fact or

act upon it, the testimony being heard by the jury or tribunal from the

lips of the witness.

affidavit.

§ 467. Use of affidavit.] An affidavit may be used to verify a
pleading, to prove the service of a summons, notice, or other process
in an action, to obtain a provisional remedy, an examination of a
witness, a stay of proceedings, or upon a motion, and in any other case
permitted by law.

§468. Where AND HOW made.] An affidavit maybe made in and
out of this territory before any person authorized to take depositions,
and must be authenticated in the same way.

depositions.

§ 469. Cases when deposition used.] The deposition of any wit"
ness may be used only in the following cases:

1. When the witness does not reside in the county where the action
or proceeding is pending, or is sent for trial, by change of venue, or is
absent therefrom.

2. When from age, infirmity, or imprisonment, the witness is unable
to attend court, or is dead.

3. When the testimony is required upon a motion, or in any other
case where the oral examination of the witness is not required.

§ 470. When taken.] Either party may commence taking testi-
mony by depositions at any time after service upon the defendants.

officers who may take them.

§ 471. Before whom.] Depositions may be taken in this territory
before a judge or clerk of the supreme court, or district court, or
before a justice of the peace, notary public, or any person empowered
by a special commission.

§ 472. Out op territory.] Depositions may be taken out of the
territory by a judge, justice, or chancellor, or clerk of any court of
record, a justice of the peace, notary public, mayor or chief magistrate
of any city or town corporate, a commissioner appointed by the gov-
ernor of this territory to take depositions, or any person authorized by
a special commission from any court of this territory.

§ 473. Not intersstsd or op kin.] The officer before whom
depositions are taken, must not be a relative or attorney of either

560 Civil Actions. Code of Civil Procedure.

party, or otherwise interested in the event of the action or pro-
ceeding.

§ 474. Commission to take.] Any court of record of this territory,
or any judge thereof, is authorized to grant a commission to teke
depositions within or without the territory. The commission must be
issued to a person or persons therein named, by the clerk, under
the seal of the court granting the same, and depositions under it must
be taken upon written interrogatories, unless the parties otherwise
agree.

MANNER OF TAKING AND AUTHENTICATING THEM.

§475. Notice to adverse party.] Prior to the taking of any
deposition, unless taken under a special commission, a written notice,
specifying the action or proceeding, the name of the court or tribunal
in which it is to be used, and the time and place of taking the same,
shall be served upon the adverse party, his agent or attorney of record,
or left at his usual place of abode. The notice shall be served so as to
allow the adverse party sufficient time, by the usual route of travel, to
attend, and one day for preparation, exclusive of Sundays and the aay
of service, and the examination may, if so stated in the notice, be
adjourned from day to day.

g 476. Same by publication.] When the party against whom the
deposition is to be read is absent from, or a non-resiaent of the terri-
tory, and has no agent or attorney of record therein, he may be notified
of the taking of the deposition by publication. The publication must
be made three consecutive weeks, in some newspaper printed in the
county where the action or proceeding is pendmg, if there be any
printed in such county; and if not, in some newspaper printed in this
territory, of general circulation in that county. The publication must
contain all that is required in a written notice, and may be proved in
the manner prescribed in publication of summons.

§ 477. Written and subscribed.] The deposition must be written
by the officer, or, in his presence, by the witness, or some disinterested
person; and must be subscribed by the witness.

§ 478. How RETURNED-;-OPENING — MAY BE TAKEN AND USED IN OTHER

TRiBUNALS.J The deposition so taken shall be sealed up and indorsed
with the title of the cause and the name of the officer taking the same,
and by him addressed and transmitted to the clerk of the district court
where the action or proceeding is pending. It shall remain under seal
until opened by the clerk by order of the court, or at the request of a
party to the action or proceeding, or his attorney. Depositions taken
pursuant to this chapter, shall be admitted in evidence, on the trial of
any civil action or proceeding, pending before any other court, officer,
or tribunal, and such deposition must be sealed up, indorsed with the
title of the action or proceeding, the name of the officer taking the
same, and addressed and transmitted by such officer, to such court,
officer, or tribunal.

§ 479. Read in action between same parties.] When a deposition
has once been taken, it may be read in any stage of the same action or
proceeding, or in any other action or proceeding upon the same
matter, between the same parties, subject, nowever, to all such excep-
tions as may be taken thereto under the provisions of this chapter.

Coda of Civil Proeedure. Civil Actions. 561

§ 480. How authenticated.! Depositions taken pursuant to this
chapter by any judicial or other officer herein authorized to take
depositions, having a seal of office, whether resident in this territory
' or elsewhere, shall be admitted in evidence upon the cei-tificate and
signature of such officer, under the seal of the court of which he is an
officer, or his official s^al, and no other or further act or authentication
shall be required. If the officer taking the same have no official seal,
the dept)sition, if not taken in this temtory, shall be certified
and signed by such officer, and shall be further authenticated, either
by parol proof, adduced in court, or by the official certificate and seal
of any secretary or other officer of state keeping the gredt seal thereof^
or of the clerk or prothonotary of any court having a sestl, attesting
thai such judicial or other officer was, at the time of taking the same,
within the meaning of this chapter, authorized to take the same. But
if the deposition be taken within or without this territory, under a
special commission, it shall be sufficiently authenticated by the official
signature of the officer or commissioner taking the same.

§ 481. Certificate to deposition.] The officer taking the deposi-
tion shall annex thereto a certificate showing the following facts:

1. That the witness was first sworn to testify the truth, the whole
truth, and nothing but the truth.

2. Tha^t the deposition was reduced to writing by some proper person,
naming him.

8, That the deposition was written and subscribed in the presence of
the officer certifying thereto.

4. That the deposition was taken at the time and place specified in
the notice.

§ 482. Requisite to reamng.] When a deposition is offered to be
read in evidence, it must appear to the, satisfaction of the court that
for some cause, specified in section 469 of this code, the attendance of
the witness cannot be procured.

§ 483. When deposition filed.] Every deposition intended to be
read in evidence an the trial, must be filed at least one day before the
trial.

EXCEPTIONS TO DEPOSITIONS.

§ 484. In writing.] Exceptions to depositions shall be in writing,
specifying the grounds of objections, and filed with the papers in the
cause.

§ 485. When filed.] No exception, other than for incompetency
or irrelevancy, shall be regarded, unless made and filed before the com-
mencement of the ferial.

§ 486. Heard before trial.] The court shall, on motion of either
party, hear and decide the questions arising on exceptions to deposi-
tions, before the conimencement of the trial.

§ 487. Errors waived.] Errors of the court, in its decisions upon
exceptions to depositions, are waived unless excepted to.

OF PUBLIC documents, RECORDS, ETC.

§ 488. Statutes, decisions, maps and books.] Printed copies in vol-
umes of statutes, code, or other written law, enacted by any other
territory or state, or foreign government, purporting or proved to have

86

562 Civil Aotions. Cade of Civil Procedure.

been published by the authority thereof, or proved to be commonly
admitted as evidence of the existing law in the court^s or tribunals of
such territory, state or government, shall be admitted bj^ the courts
and officers of this territory on all occasions, as presumptive evidence
of such laws. The unwritten or common law of any other territory,
state or foreign government, may be proved as facts by parol evidence;
and the books of reports of cases adjudged in their courts may also be
admitted as presumptive evidence of such law. The term "public
document" is defined to be all the publications and maps printed by
order of the legislative assembly, or congress, or either house thereof;
and all such documents are admissible in evidenco.

§ 489. Judicial reooeds, etc.] Copies of the records and judicial
proceedings of any court of any state or territory of the United States,
shall be admissible in evidence in all cases in this territory, when
attested by the clerk and the seal of the court annexed, if there be a
seal, tJbgether with a certificate of the judge, chief justice, or presidiag
magistrate, that the attestation is in due form. And the saia records
and judicial proceedings so authenticated shall have such faith and
credit given to them in every court within this territory as they have
by law or usage in the (M)urt8 of the state or territory from which they
are taken.

§ 490. Proof of publication.] The affidavit of any printer, Jforeman
of any printer, or publisher of any newspaper published in this terri-
torj\ of the publication of any notice, order, or advertisement which,
by any law of this territory, shall be re(j[uired or authorized to be
published in such newspaper, shall be entitled to be read in evidence
m all courts of justice, and in all proceedings before any officer, boanl,
or body, and shall be prima facie evidence of such publication and of
the facts stated therein,

§491. Certified ji^stice's RECORD.) A transcript fnmi the docket
of any justice of the peace, of any judgment had before him, of the
proceedings in the action, of the execution issued thereon, if any, and
of the return to such execution if any, when certified by such justice,
shall be evidence to prove the facts contained in such transcript in
any court, or legal proceedings in the county or subdivision wherein
such iudgment was rendered.

§492. Evidence IN OTHER COUNTY.] And such ti*anscript may be
read in evidence in any other county or subdivision, when there shall
be attached thereto a certificate of the clerk of the district CyOurt, of
the county or subdivision in which such judgment was rendered, under
t^ie seal of the court, to the effect that the pei'sgn subscribing such
transcript was, at the date of the judgment therein mentioned, a
justice of the peace of such county.

§ 493. Acknowledged instruments,] Every instrument in writing,
which is acknowledged or proved, and duly recorded, is admissible as
evidence without further proof.

§ 494. Record or copy how evidence.] The record of such instru-
ment, or a duly authenticated copy thereof, is admissible in evidence
whenever, by the party's own oath, or otherwise, the original is shown
to be lost, or hot belonging to the party wishing to use the same, and
not within his control.

Code of Civil Procedure. Civil Actions. 668

g 495. Official becobds.] Entries in [mblic or other official books
or records, made in the performance of his dnty by a public officer of
this territory, or by another person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts stated
therein.

§ 496. Same.] An entry made by an officer, or board of officers, or
under the direction and in the presence of either, in the course of
official duty, is prima facie evidence of the facts stated in such entry.

§ 497. Certificate to copy — contents. ] Whenever a copy of a
writing is certified for the purpose of evidence, the certificate must
state in substance that the copy is a correct copy of the original, or of
a specified part thereof, as the case may be. The certificate must be
under the official seal of the certifying officer, if there be any, or, if he
be the clerk of a court, having a seal, under the seal of such court.

§ 498. Deemed natuballt dead.] [f any person, upon whose life
any estate in real property depends, remains without the United
States, or absents himself in the territory or elsewhere, for seven
years together, such person must be accounted naturally dead, in any
action or special proceeding concerning such property, in which his
death shall come m question, unless sufficient proof be made in such
case of the life of such person.

§ 499. Confidential relations violate.] There are particular rela-
tions in which it is the policy of the law to encourage confidence and
to preserve it inviolate; therefore, a person cannot be examined as a
witness in the. following cases:

1. An attorney cannot, without the consent of his client, be exam-
ined as to any communication made by the client to him, or his advice
given thereon in the course of professional employment.

2. A clergyman or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to him
in his professional character in the course of discipline enjoined in the
church to which he belongs.

3. A physician or surgeon cannot, without the consent of his patient,
be examined in a civil action as to any information acquired in attend-
ing the patient which was necessary to enable him to prescribe or act
for the patient.

4. A public officer cannot be examined as to communications made
to him in official confidence, when the public interests would suffer
bv the disclosure.

§ 5()<). How waived.] If a j^erson offer himself as a witness, that
is to be deemed ;i consent to the examination, also of an attorney,
clergyman, priest, physician, or surgeon, on the same subject, within
the meaning of the fii'st three subdivisions of the preceding section.

§ 501. When judge oe juror witness.] The judge himself, or any
juror, may be called as a witness by either party; but in such case it
is in the discretion of the court or judge to order the trial to be post-
poned, and to take place before another judge or jury.

§502. Interpreters— 8ubp<ena — oath.] When a witness does not
understand and speak the English language, an interpreter must be
sworn to interpret for him. Any person, a resident of the proper
county may be subpoenaed by any court or judge to appear oefotre
4iuch court or judge to act as an interpreter in any action or proceed-

564 Civil Actions. Code of Civil Procedure^

ing« The subpoena must be served and returned in like manner as a
subpoena for a witness. Any person so subpoenaed who fails to attend
at tne time and place named in the subpoena, is guilty of contempt.-.
The oath of the interpreter shall be as follows:

You do solemnly swear that you will justly, truly, and impartially interpret to

the oath about to be administered to him ; and the questions which may be asked him, and the
answers that he shall give to such questions, relative to the cause now under c6ustderatlon
before this court {ot officer.) So help you God. *

If the interpreter have conscientious scruples as to taking an oatlu
he may affirm in form as heretofore provided in case of witnesses.

PROCEEDINGS TO PERPETUATE TESTIMONY.

§,503» Statements in vs&ifibd petition.] The testimony of a
witness nmy be perpetuated in the following manner: The applicant
shall file in the office of the clerk of the district court, a petition, to
be verified, in which shall be set forth specially, the subject matter
relative to which testimony is to be taken, and the names of the
persons interested^ if known to the applicant; and if not known, such
general description as he t^an give of such persons, as heirs, devisees^
alienees, or otherwise. . The petition shall also state the names of the-
witnesses to be examined, and the interrogatories to be propounded to-
each; that the applicant expects to be a party to an action m a court
in this territory, in which such testimony will, as he believes, be
material, and the obstacles preventing the immediate commencement
of the action, where the applicant expects to be plaintiff.

§ 504.. OsJOEjEL FOR EXAMINATION.] The court or judge thereof, may
forthwith make an order allowing the examination of such witnesses^
The order shall prescribe the time and place of the examination, how^
long the parties interested shall be notified thereof, and the manner in
which they shall be notified.

§ 505. AtTORNEY WHEN— EXAMINATION.] Whcu it appears satis-
factory to the court or judge that the parties interested cannot be
notified, such court or judge shall appoint a competent attorney to
examine the petition and prepare and file cross-interrogatories ta
those, contained therein. The witnesses shall be examinea upon the-
interrogatories of the applicant, and upon cross-inteiTOgatories, wher^
they are required to be prepared, and no others shall be propounded
to them; nor shall any statement be received which is not responsive
to some of them. The attorney filing the cross-interrogatories shall
be allowed a reasonable fee therefor, to be taxed in the bill of costs.

§ 506. Before WHOM — return,] Such depositions shall be taken
before some one authorized by law to take depositions, or before some
one specially authorized by the court or judge, and shall be returned
to the clerk's office of the court in which the petition was filed.

§ 507. Approval, filing and use.] The court or judge, if satisfied
that th€^ depositions have been properly taken, and as herein required,
shall approve the same and order them to be filed; and if a trial be
had between the parties named in the petition, or their privies or
successors in interest, such depositions, or certified copies thereof,
may be given in evidence by either party, where the witnesses are dead
or insane, or where their attendance for oral examination cannot be
obtai^ed or^ required; hut 8uch^ depositions shall be subject to the?

Oode of Civil Procedure. Civil Actions. 565

•

^ame objections for irrelevancy and incompetency as may be made to
depositions taken pending an action.

g 508. Costs.] The applicant shall pay the costs of all such pro-
ceedings.

CHAPTER XXII.

MOTIONS AND ORDERS.

% 509. Order DEFiNBD.] Every direction of a court or judge, made
or entered in writing, and not included in a judgment, is denominated
an order.

§ 510. Motions — notice — preference — stay — referee.] 1. An
application for an order is a motion.

2. Orders made out of court, without notice, may be made by any
judge of the court, in any part of the territory.

3. Motions upon notice must be made within the district in which
the action is triable.

4. In all the districts, a motion to vacate or modify a provisional
remedy, and an appeal from an order allowing a provisional remedy,
shall have preference over all other motions.

5. No order to stay proceedings for a longer time than twenty days
shall be granted by a judge out of court, except to stay proceedings
under an order or judgment appealed from, or upon previous notice to
the adverse party.

When any party intends to make or oppose a motion in any court,
and it shall be necessary for him to have the affidavit of any person
who shall have refused to make the same, such court may, by order,
appoint a referee to take the affidavit or deposition of such person:
Such person may be subpoenaed and compelled to attend and make
an affidavit before such referee, the same as before a referee to whom
it is referred to try an issue, and the fees of such referee, for such
service, shall be three dollars per day.

§ 511. Service of notice.] When a notice of a motion is neces-
sary, it must be served three days before the time appointed for the
hearing; but the court or judge may, by an order to show cause,
prescribe a shorter time.

§ 512. Extension of time.] The time within which any proceeding
in an action must be had, after its commencement, except the tinae
within which -an appeal must be taken, may be enlarged, upon an
affidavit showing grounds therefor, by a judge of the court. The affi-
davit, or a copy thereof, must be served, with a copy of the order, or
the order may be disregarded.

CHAPTER XXITI.

«

notices, and filings, and service op papers.

§ 613. Notices in writing.] Notices shall be in writing; and
notices and other papers may be served on the party or attorney in the

566 Civil Actions. Code of Civil Procedure.

the manner prescribed in the next three sections, where not otherwise
provided by this code.

§ 614. Manner OF service.] The service may be personal, or by
delivery to the party or attorney, on whom the service is required to
be made; or it may be as follows:

1. If upon an attorney, it may be made during his absence from his
office, by leaving the ^aper with his clerk therein, or with a person
having charge thereof; or when there is no person in the office, by leav-
ing it, between the hotirs of six in the mbrniujg and nine in the even-
ing, in a conspicuous place in the office; or if it be not open so as to
admit of such service, then by leaving it at the attorney s residence,
with some person of suitable age and discretion.

2. If upon a party, it may be made by leaving the paper at his resi-
dence between the hours of six in the morning and nine in the evening,
with some person of suitable age and discretion. '

§ 515. By mail.] Service by mail may be made where the person
making the service and the person on whom it is to be made reside
in different places between which there is a regular communication by
mail.

§ 516. Method op same.] In case of service by mail, the paper
must be deposited in the post office, addressed to the person on whom
it is to be served, at his place of residence, and the postage paid.

§ 517. Same — double time.] When the service is by man, it shall
be tiouble the time recjuired in cases of personal service, except service
of notice of trial, which may be made sixteen days before the day of
trial, including the day of service.

§ 618. Personal -THREE days.] Notice of a motion, or other pro-
ceeding before a court or judge, when personally served, shall be given
at least three days before the time appointed therefor.

§ 519. When notice unnecessary.] Where a defendant shall not
have demurred or answered, service of notice or papers, in the ordi-
nary proceedings in an action, need not be made upon him unless he
be imprisoned for want of bail, but shall be made upon him or his
attorney, if notice of appearance in the action has been given.

§ 520. Non-resident party.] Where a plaintiff or a defendant who
has demurred or answered, or gives notice of appearance, resides out
of the territory, and has no attorney in the action, the service may be
made by mail, if his residence be known; if not known, on the clerk
of the court for the party.

§ 521. Summons and pleadings when filed.] The summons and
the several pleadings in an action shall be filed with the clerk within
ten days after the service thereof, respectively, or the adverse party,
on proof of the omission, shall be entitled, without notice, to an order
from a judge that the same be filed within a time to be specified in the
order, or be deemed abandoned.

§ 522. Service upon attorney.] Where a party shall have an
attorney in the action, the service of papers shall be made upon the
attorney, instead of the party.

§ 523. Certain process not included.] The provisions of thia
chapter shall not apply to the service of a summons, or other process,
4ff of any paper to bring a party into contempt.

Codi ef Civil Procedure. Civil Actions. 567

CHAPTER XXIV.

DUTIES OF SHERIFFS AND CORONERS.

^ 524. Service of papers -in subdivision.] Whenever, pursuant to
this code the sheriflf may be required to serve or execute any summons,
order, or judgment, or to do any other act, he shall be bound to do so
in like manner as upon process issued to him, and shall be equally
liable in all respects for neglect of duty; and if the sheriff be a party,
the coroner shall be bound to perform the service, as he is now bound
to execute process where the sheriff is a party; and the provisions of
this code relating to the sheriff* shall apply to coroners when the sheriff
is a party. The sheriffs and coroners of the several counties in which
the district courts are held, shall have and exercise the same power
and authority in the service of papers, and the execution of writs and
process of such courts in any county or place within the subdivision of
which this county forms a part, as they have or can exercise in their
own county.

CHAPTER XXV.

miscellaneous provisions.

% 525. ('opY QF lost paper.] If any process, original pleadings, or
any other i)aper be lost or withheld by any person, the court may
authorize a copy thereof to be filed and used instead of the original.

§ 526. Undertakings where filed.] The various undertakings
required to be given by this code, must be filed with the clerk of the
court, unless the court expressly provides for a different disposition
thereof, except that the undertakings provided for in this code for the
claim and delivery of personal property, shall, after the justification of
the sureties, be delivered by the sheriff to the parties respectively for
whose benefit they are taken.

§ 527. Title of affidavits.] It shall not be necessary to entitle an
affidavit in the action, but an SLffidavit made without a title, or with a
defective title, shall be as valid and effectual, for every purpose, as if
it were duly entitled, if it intelligibly refer to the action or proceeding
in which it is made.

§ 528. Consolidatino actions.] When two or more actions are
pending at any one time between the same parties and in the same
court, upon causes of action which might have been joined, the court
may order the actions to be consolidated.

§ 529. Action when pending.] An action is deemed to be pending
from the time of its commencement until its final determination upon
appeal, or until the time for appeal has passed, unless the judgment be
sooner satisfied.

§ 530. Clerk's register of actions.] The clerk must keep among
the records of the court a register of actions. He must enter therein
tiiti.)titie of the action, rwith brief notes under it, from time to time, of
all papers filed and proceedings had therein.

568 Civil Actions. Code of Civil Procedme:

CHAPTER XXVI.

ACrriONS IN PLACE OP SCIRE FACIAS, QUO WARRANTO AND OF INFORMATION

IN THE NATURE OF QUO WARRANTO.

§ 531. By civil action.] The remedies formerly attainable by the
writ of scire facias, the writ of quo warranto, and proceedings by
information in the nature of quo warranto, may be obtained by civil
actions under the provisions of this chapter.

§ 532. Territory against corporation.] An action may be brought
by any district attorney in the name of the territory, on leave granted
by the district court, or judge thereof, for the purpose of vacating the
charter or the articles of incorporation, or for annulling the existence
of a corporation other than municipal, whenever such corporation
shall :

1. Offend against any of the laws creating, altering, or renewing such
corporation; or,

2. Violating the provisions of any law, by which such corporation'
shall have forfeited its charter or articles of incorporation, by abuse of
its power; or,

3. Whenever it shall have forfeited its privileges or franchises by
failure to exercise its powers; or,

4. Whenever it shall have done or omitted any act which amounts
to a surrender of its coi^porate rights, privileges, and franchises; or,

5. Whenever it shall exercise a franchise or privilege not conferred
upon it by law.

And it shall be the duty of any district attorney, whenever he shall
have reason to believe that any of these acts or omissions can be
established by proof, to apply for leave, and upon leave granted to
bring the action, in every case of public interest, and also in every
other case in which satisfactory security shall be given to indemnify
the teiTitory against the costs and expenses to be incurred. thereby.

§ 533. Leave to bring such action.) Leave to bring the action
may be granted upon the application of any district attorney, and the
court or judge may, at discretion, direct notice of such application to
be given to the corporation or its officers, previous to granting such
leave, and may hear the corporation in opposition thereto.

§ 534. Territory against person usurping — officer — illegal cor-
poration.] An action may be brought by any district attorney in the
name of the territory, upon his own information, or upon the
complaint of any private party, against the parties offending in the
following cases:

1. When any person shall usurp, intrude into, or unlawfully hold or
exercise any public office, civil or military, or any franchise within this
territory, or any office in a corporation created by the authority of this
territory; or,

2. When any public officer, civil or military, shall have done or
suffered an act which, by the provisions of law, shall make a forfeito^
of his office; or,

3. When any association or number of persons shall act within this
territory as a corporation, without being duly incorporated.

Code of Civil Procedure. Civil Actions. 669

§ 535. Pbbson joined with terbitoey.] When an action shall be
brought by the district attorney by virtue of this chapter, on the
relation or information of a person having an interest in the question,
the name of such person shall be joined with tne territory as plaintiff.
And in every such case the district attorney may require, as a condi-
tion for bringing such action, that satisfactory security shall be given
to indemnify the territory against costs and expenses to be incurred
thereby.

§ 536. ' Pboobedinos for usurping office.] Whenever such action
shall be brought against a person for usurping an office, the district
attorney, in addition to the statement of the cause of action, may also
set forth in the complaint the name of the person rightfully entitled
to the office, with a statejoient of his right thereto; and in such case,
upon proof by affidavit that the defendant has received fees or emolu-
ments belonging to the office, and by means of his usurpation thereof^,
an order may be granted by a judge of the court for the arrest of such
defendant, and holding him to bail; and thereupon he shall be arrested
and held to bail, in the manner, and with the same effect, and subject
to the same rights and liabilities, as in other civil actions where the
defendant is subject to arrest.

§ 537. Judgment includes claimant,] In every such case, judg-.
ment shall be rendered upon the right of the defendant, and also upon
the right of the party so alleged to be entitled, or only upon the right
of the defendant, as justice shall require.

§ 538. Claimant takes office when.] If the judgment be rendered;
upon the right of the person so alleged to be entitled, and the same
be in favor of such person, he shall be entitled, after taking the oath:
of office, and executing such official bond as may be required by law,
to take upon himself the execution of the office; and it shall be his^
duty, immediately thereafter, to demand of the defendant in the
action all the books and papers in his custody, or within his powers
belonging to the office from which he shall have been excluded.

§ 539. Refusal to deliver.] If the defendant shall refuse ;<)r
neglect to deliver over such books or papers, pursuant to the demand,
he shall be deemed guilty of a misdemeanor, and the same proceed-
ings shall be had, and with the same effect, to compel delivery of such
books and papers, as are or may hereafter be prescribed by law.

§ 540. Damages for usurpation.] If judgment be rendered upon
the right of the person so alleged to be entitled, in favor of such
person, he may recover by action, the damages which he shall haVe
sustained by reason of the usurpation by the defendant of the office,
from which such defendant has been excluded.

§541. Joinder of several claimant.] Where several personal
claim to be entitled to the same office or franchise, one action may be.
brought against all such persons, in order to try their respective rights
to such office or franchise.

§ 542. Judgment against intruder.] When a defendant, whether
a natural person or a corporation, against whom such action shall
have been brought shall be adjudged guilty of usurping or intruding
into, or unlawfully holding or exercising any office, franchise, or
privilege, judgment shall be rendered that such defendant be excluded)
from such office, franchise, or privilege, and also that the plaintiffi

570* Civil Actions. Code of Civil Procedure.

recover costs against such defendant. The court may also, in its dis-
cretion, fine such defendant a sum not exceeding five hundred dollars,
which tine, when collected, shall be paid into the treasury of the
territory.

§ 543. Against corporation.] If it shall be adjudged that a cor-.
poration against which an action shall have been brought pursuant to
this chapter, has by neglect, abuse, or surrender, forfeited its corporate
rights, privileges, and &anchise, judgment shall be rendered that the
corporation be excluded from such corporate rights, privileges, and
franchises, and that the corporation be dissolved.

§ 544. Costs, how collected.] If judgment be rendered in such
action against a corporation, or against a person claiming to be a
corporation, the court may cause the costs therein to be collected by
execution against the person claiming to be a corporation, or by
attachment or process against the directors or other officers of such
corporation.

§ 545. Closing corporate affairs.] When such judgment shall be
rendered against a corporation the court has power to restrain the
corporation, to appoint a receiver of its property, and to take an
account and make distribution thereof among its creditors; and the
dirfirict attorney must, immediately after the rendition of such judg-
ment, institute proceedings for that purpose.

§ 546. Judgment filed with secretary.] Upon the rendition of
such judgment against a corporation, the district attorney must cause
a copy of the judgment to be forthwith filed in the oflBce of the
secretary of the territory, whose duty it shall be to record the
same.

§ 547. Forfeitures to territory.] Whenever, by the provisions
of law, any property, real or personal, shall be forfeited to the terri-
tory, or to any officer for its use, an action for the recovery of such
Sroperty, alleging the ground of the forfeiture, may be brought bjr the
istrict attorney, in the district court of the county or subdivision
where the property is situated.

CHAPTER XXYII.

action for the partition of real property.

§ 548. When action brought.] When several co-tenants hold and
are in possession of real property as parceners, joint-tenants, or
tenants in common, in which one or more of them have an estate of
inheritance, or for life or lives, or for years, an action may be
brought by one or more of such persons for a partition thereof,
according to the respective rights of the persons interested therein,
and for a sale of such property, or a part thereof, if it appear that
a partition cannot be mad^ without great prejudice to the owners.

g 549. Requisites of complaint.] The interests of all persons in
the property, whether suchpersons.be known or unknown, must beset
forth in the complaint specifically and particularly, as far as known to
the plaintiff, and if one or more of the parties, or the share or (jiuan-
tiity of interest of any of tihe i^rties, be unknown to the plaintiff^ or

Gadeof Civil Procedure. Civil Actions. 571'

be uncertain, or contingent, or the ownership of the inheritance-
depend upon an executory devise, or the remainder be a contingent
remainder, so that such parties cannot be named, that fact must be set
forth in the complaint.

§ 650. Lienors op record. | No person having a conveyance of, or
claiming a lien on, the property, or some part of it, need be made a
party to the action, unless such conveyance or lien appear of record.

§551. Lis PENDENS REQUIRED.] Immediately after tiling the com-
plaint in the district court, the plaintiff must record in the office of
the register of deeds of the county, or of the several counties in which
the property is situated, a notice of the pendency of the action,
containing the names of the parties, so far as known, the object of the
actiouf and a description of the property to be Jiftected thereby.
From the time of filing such notice for record all persons shall be
deemed to have notice of the pendency of the action.

§ 552. Summons to whom. | The summons must be directed to all
the joint-tenants and tenants in common, and all i>ersons having an
interest in, or any liens of record by mortgage, judgment, or other-
wise upon the piDperty, or upon any particular portion thereof; and
generally, to all persons unknown who have or claim any interest in
the property.

§ 553. Service by publication. | If the party having a share or
interest be unknown, or any one of the unknown parties reside out of
the territory, or cannot be found therein, and such fact is made to
appear by affidavit, the summons may be served on such absent or
unknown party by publication as in other cases. When publication
is made, the summons, as published, must be accompanied by a brief
description of the property which is the subject of the action.

§ 554. Requisites of answers.] The defendants who have been
personally served with the summons and a copy of the (5omplaint, or
who have appeared without such service, must set forth in their
answers, fully and particularly the origin, nature, and extent of their
respective interests in the property: and if such defendants claim a
lien on the property by mortgage, judgment, or otherwise, they must
state the original amount and aate of the same, and the sum remain-
ing due thereon; also, whether the same has been secured in any other
way, or not; and if secured, the nature and extent of such security, or
they are deemed to have waived their right to such lien.

§ 555. Title, proofs, and judgment.] The rights of the several
parties, plaintiff as well as defendant, may be put in issue, tried, and
determined in such action; and when a sale of the premises is necessary^
the title must be ascertained by proof to the satisfaction of the court,
before the judgment of sale can oe made; and where service of the
complaint has been made by publication, like proof must be required
of the right of the absent or unknown parties before such judgment
is rendered ; except that where there are several unknown persona
having an interest in the property, their rights may be considered
together in the action, as not between themselves.

§ 556. Part partition and subdivision. | Whenever from any
cause it is, in the opinion of the court, impracticable or highly incon-
yenient to niake a complete partition, in the first instance, among all
the parties in interest^ the court may first ascertain and determine

672 Civil Aotions. Code of Civil Procedure,

the shares or interest respectively held by the original co-tenants, and
thereupon adjudge and cause a partition to be made, as if such original
<50-tenants were the parties, and sole parties, in interest, and the only
parties to the action, and thereafter may proceed in like manner to
adjudge and make partition separately of each share or portion ^o
ascertained or alloted as between those claiming under the original
tenant to whom the same shall have been so set apart or may allow
them to remain tenants in common thereof, as they may desire.

§ 557. Outstanding likns — reperbe.] If it appear to the court by
the certificate of the register of deeds, or clerk of the district court,
or by the sworn or verified statement of any person who may have
examined or searched the records that there are outstanding liens or
incumbrances of record upon such real property, or any part or por-
tion thereof, which existed and were of record at the time of the
<;ommencement of the action, and the persons holding such liens are
not made parties to the action, the court must either order such per-
sons to be made parties to the action by an amendment or supplemen-
tal comi)laint, or appoint a referee to ascertain whether or not such
liens or incumbrances have been paid, or, if not paid, what amount
remains due thereon, and their order among the liens or incumbrances
severally held by such persons and the parties to the action, and
whether the amount remaining due thereon has been secured in any
manner, and if secured, the nature and extent of the security.

§ 558, Appearance before referee — service — report,] The
plaintiff must cause a notice to be served a reasonable time previous
ta the day for appearance before the referee appointed, as provided in
the preceding section, on each person having outstandmg liens of
record, who is not a party to the action, to appear before the referee
at a specified time and place, to make proof, by his own affidavit or
otherwise, of the amount due or to become due contingently or
.absolutely thereon. In case such person be absent, or his residence be
unknown, service may be made by publication or notice to his agent,
under the direction of the court, in such manner as may be proper.
The report of the referee thereon must be made to the court, and must
be confirmed, modified, or set aside, and a new reference ordered, as
the justice of the case may require.

§ 559. Sale or partition.) If it be alleged in the complaint and
established by evidence, or if it appear by the evidence without such
allegation in the complaint, to the satisfaction of the court, that the
property, or any part of it, is so situated that partition cannot be
made without great prejudice to the owners, the court may order a
sale thereof. Otherwise, upon the requisite proof being made, it must
order a partition according to the respective rights of the parties, as
ascertained by the court, and appoint three referees therefor; and must
designate the portion to remain undivided for the owners whose
interests remain unknown, or are not ascertained.

I 560. Method and rules of partition.) In making the partition,
referees must divide the property and allot the several portions thereof
to the respective parties, q^uality and quantity relatively considered,
according to the respective rights of the parties as determined by the
•court, pursuant to the provisions of this chapter, designating ihe
several portions by proper land-marks^ and may employ a surveyor^

Code of Civil Procedure. Civil Actions. 575

with the necessary assistants to aid them. Before making partition
or sale, the referees may, whenever it will be for the advantage of
those interested, set apart a portion of the property for a way, road, or
street, and the portion so set apart shall not be assigned to any of the
parties, or sold, but shall remain an open and public way, road, or
street, unless the referees shall set the same apart as a private way
for the use of the parties interested, or some of them, their heirs and
assigns, in which case it shall remain such private way.

§661. Referees' report.] The referees must make a report of
their proceedings, specifying therein the manner in which they executed
theif trust and describing the proi)erty divided, and the share allotted
to each party, with a particular description of each share.

% 662. Judgment on report — effect op.] The court may confirm^
change, modify, or set aside, the report, and if necessary, appoint n^w
referees. Upon the report being confirmed, judgment must be
rendered that such partition be effectual forever, which judgment is
bibding and conclusive:

1. On all persons named as parties to the action, and their legal
representatives, who have at the time any interest in the property
divided, or any part thereof, as oWners in fee, or as tenants for life, or
for years, or as entitled to the reversion, remainder, or the inheritance
of such property, or any part thereof, after the determination of a
particular estate therein, and who by any contingency may be entitled
to a beneficial in the property, or who have an interest in any undivided
share thereof as tenants for years or for life.

2. On all persons interested in the property, who may be unknown,
to whom notice has been given in the action for partition by publica-
tion.

3. On all other persons claiming from such parties or persons, or
either of them.

And no judgment is invalidated by reason of the death of any party
before final judgment or decree; but such judgment or decree is
as conclusive against the heirs, legal representatives, or assigns, ot
such decedent as if it had been entered before his death.

§563. Tenants not affected.) The judgment does not affect
tenants for years, less than ten, to the whole of the property which i»
the subject of the partition.

§ 564. Payment of expenses.] The expenses of the referees^
including those of a surveyor and his assistants, when employed, must
be ascertained and allowed by the court, and the amount thereof,
together with the fees allowed by the court, in its discretion, to the
referees, must be apportioned among the different parties to the action,,
equitably.

§ 665. Liens follow owner's share.] When a lien is on an
undivided interest or estate of any of the parties, such lien, if a parti-
tion be made, shall thenceforth be a charge only on the share assigned
to such party; but such share must first be charged with iis just pro-
portion of the costs of the partition, in preference to such lien.

§ 566.' Certain estates set off.] When a part of the property only
is ordered to be sold, if there be an estate for life or years, in an
undivided share of the whole property, such estate may be set off" in
any part of the property, not ordered to be sold.

574 Civil Actions. Code of Civil Procedure.

§ 667. Procbsds of incumbbred propbety applied.] The prooeed»
of the 8ale of incumbered property must be applied uuder the airection
of the court, as follows:

1. To pay its just proportion of the general costs of the action.

2. To pay the costs of the reference.

3. To satisfy and cancel of record the several liens in their order of
priority, by payment of the sums due and to become due; the amount
one to be verified by affidavit at the time of payment.

4. The residue among the owners of the property sold, acex)rding to
their respective shares therein.

§ 568. Lienor having othbr security. | Whenever any party to an
Hction who holds a lien upon the property, or any part thereof, has
other securities for the pavment of tne amount of sucn lien, the court
may, in its discretion, order such security to be exhausted before dis-
tribution of the proceeds of sale, or may order a just deduction to be
made from the amount of the lien on the property on account thereof.

§ 569. Distribution by referee.] The proceeds of sale and the
.securities taken by the referees, or any part thereof, must be distrib-
uted by them to the persons entitled thereto, whenever the court so
directs. But in case no direction be given, all of such proceeds and
securities must be paid into court, or deposited therein, or as directed
by the court.

§ 570. Part action continued. | When the proceeds of the sale of
any share or parcel belonging to persons who are parties to the action*
and who are known, are paid into court, the action may be continued
Hs between such parties, for the determination of their respective
claims thereto, which must be ascertained and adjudged by the court.
Further testimony may be taken in court, or by a referee, at the
discretion of the court, and the court may, if necessary, require such
parties to present the fH(*ts or law in controversy, by pleadings as in
an original action.

§ 571. Sales how made.| All sales of real property, made by
referees under this chapter, must be made at public auction to the
hie:hest bidder, upon notice published in the manner required for the
»sale of real property on execution. The notice must state the terms
of sale, and if the property, or anj^ part of it, is to be sold subject to
<i prior estate, charge, or lien, that must be stated in the notice.

j^ 572. Terms op sale.] The court must, in the order for sale, direct
the terms of credit which may be allowed for the purchase money of
^ny portion of the real property of which it may direct a sale on
credit, and for that portion of which the purchase money is required,
to be invested for the benefit of unknown owners, infants, or parties
out of the teiTitory.

§ 573. Security for purchase money. | The referees may take
separate mortgages and other securities for the whole, or convenient
portions of the purchase money, or such parts of the property as are
directed by the court to be sold on credit, for the shares of any known
owner of full age, in the name of such owner; and for the shares of •
an infant, in the name of the guardian of such infant; and for other
shares in the name of clerk of the district court, and his successors in
oflBce.

Code of Civil Procedure. Civil Actions. b7%

§ 574. Estate foe life or yeaes.] The person entitled to a tenancy
for life or yeai^s, whose estate has been sold, is entitled to receive
such sum as mav be deemed a reasonable satisfaction for such estate,
and which the person so entitled may consent to accept instead
thereof, by an instrument in writing, filed with the clerk of the court.
Upon the filing of such consent, the clerk must enter the same in the
mjnutes of the court-.

§ 575. Compensation for.] If such consent be not given, tiled and
entered as provided in the last section, at or before a jwlgment of sale
is rendered, the court must ascertain and determine what proportion
of the proceeds of the sale, after deducting expenses, will be a just and
reasonable sum to be . allowed on account of such estate, and must
order the same to be paid to such party, or deposited in court for him,
as the case may require.

§ 576. Same unknown.] If the persons entitled to such estate for
life or years be unknown, the court must provide for the protection of
their rights in tjie same manner, as far as may be, as if they were
known and had appeared.

^ 577. Future estates.] In all cases of sales, where it appears
that any person has a vested or contingent future right or estate in
any of the property sold, the court must ascertain and settle the
proportionate value of such contingent or vested right or estate, and
must dii^ect such proportion of the proceeds of the sale to be invested^
secured, or paid over, in such manner a.s to protect the rights and
intei'ests of the parties.

J^ 578. Announcements at sale.| In all cases of sales of property,
the terras must be made known at the time, and if the premises consist
of distinct farms or lots, they must be sold separately.

§ 579. Interest excludes buyers.] Neitner of the referees, nor
any person for the benefit of either of them, can be interested in any
purchase: nor can a guardian of an infant party be interested in the

fmrchase of any real property, being the subject of the action, except
or the benefit of the infant. All sales contrary to the provisions of
this section are void.

§ 580. Report of sale.| After completing a siile of the property,
or anj' part thereof, ordered to be sold, the referees must report the
same to the court, with a description of the different parcels of land
sold to each purchaser, the name of the purchaser, the price paid or
secured, the terms and conditions of the sale, and the securities, if any,
taken. The report must be filed in the office of the clerk of the
district court where the property is situated.

§581. Order TO CONVEY. I If the sale be confirmed by the court,
an order must be entered, directing the referees to execute convey-
ances and take securities pursuant to such sale, which they are
hereby authorized to do. Such order may also give directions to
them respecting the disposition of the proceeds of the sale.

§ 582. Lienor or party a purchaser.] When a party entitled to
a share of the property, or an incumbrancer entitled to have his lien
paid out of the sale, becomes a purchaser, the referees may take his
receipt for so much of the proceeds of the sale as belongs to him.

§ 583. Record and bar op conveyance.] The conveyance must be
recorded in the county where the premises are situated, and shall be a

S76 Civil Actions. Code of Civil Procedure.

bar against all persons interested in the property in any way, who
shall have been named as parties in the action ; and against all such
parties and persons as were unknown if the summons was served by
publication, and against all persons claiming under them, or either of
them, and against all persons having unrecorded deeds or liens, at the
commencement Of the action.

§ 584. Proceeds due unknown.] When there are proceeds of. a.
sale belonging to an unknown owner, or to a person without the terri-
tory who has no legal representative within it, the same must be
invested in bonds of the United States, for the benefit of the persons
entitled thereto.

§ 585. Securities run to clerk.] When the security of the pro-
ceeds of the sale is taken, or when an investment of any such proceeds
is made, it must be done, except as herein otherwise provided, in the
name of the clerk of the district court of the county where the
papers are filed, and his successors in office, who must hold the same
for the use and benefit of the parties interested, subject to the order
of the court.

8 586. Security to parties.] When security is taken by the
referees on a sale, and the parties interested in such security by an
instrument in writing, under their hands, delivered to the referees,
agree upon the shares and proportions to which they are respectively
entitled, or when shares and proportions have been previously
adjudged by the court, such securities must be taken in the names of
and payable to the parties respectively entitled thereto, and must be
delivered to such parties upon their receipts therefor. Such agree-
ment and receipt must be returned and filed with the clerk.

§ 587. Clerk's duty.] The clerk of the district court, in whose
name a security is taken, or by whom an investment is made, and
his successors in office, must receive the interest and principal as it
becomes due, and apply and invest the same as tne' court may
direct; and must deposit with the county treasurer all securities taken
and keep an account in a book provided and kept for that purpose in
the clerk's office, free for inspection by all persons, of investmente and
moneys received by him thereon, and the aisposition thereof.

§ 588. Compensation for inequality.] When it appears that the
partition cannot be made equal between the parties according to their
respective rights, without prejudice to the rights and interests of
some of them, and a partition be ordered, the couit may adjudge com-
pensation to be made by one party to another, on account of the
inequality; but such compensation shall not be required to be made
to others by owners unknown, nor by an infant, unless it appears
that such infant has personal property sufficient for that purpose, and
that his interest will be promoted thereby. And in all cases the court
has power to make compensatory adjustment between the respective
parties, according to the ordinary principles of equity.

§ 589. Infant s SHARE.] When the share of an infant is sold, the*
proceeds of the sale may be paid by the referee making the sale to his*
general guardian, or the especial guardian appointed for him in
the action, upon giving the security required by law, or directed by
order of the court.' ' • ,

Code of Civil Procedure. Civil Actions. 577

§ 590. Insane and iNCOMPETENr.] The guardian who may be
entitled to the custody and management of the estate of an insane
person, or other person adjudged incapable of conducting his own
affaiiu whose interest in real property has been sold, may receive in
"behalf of such person his share of the proceeds of such real property
from the referees, on executing, with sufficient sureties, an undertak-
ing, approved by a judge of the court, that he will faithfully discharge
the trust imposed in him, and will render a true and just account to
the person entitled, or to his legal representative.

§ 591. . Guardian's powers.] The general guardian of an infant,
tt.nd the guardian entitled to the custody and management of the
•estate of an insane person or other person adjudged incapable of con-
-ducting his own affairs, who is interested in real property held in
joint tenancy, or in common, or in any other manner, so as to author-
ize his being made a party to an action for the partition of, ina.y
^•onsent to a partition without action, and agree upon the share to be
set off to such infant, or other person entitled, and may execute a
release in his behalf to the owners of the shares of the parts to which
they may be respectively entitled, upon an order of the court.

§ 592. Fees and disbursements.] The costs of partition, including
reasonable counsel fees, expended by the plaintiff or either of the
defendants, for the common benefit, fees or referees, and other disburse-
ments, must be paid by the parties respectively entitled to share in
the lands divided, in poi'portion to their respective interests therein,
and may be included ana specified in the judgment. Tn that case
they shall be a lien on the several shares, and the judgment may
be enforced by execution against such shares, and against other prop-
erty held by the respective parties. When, however, litigation arises
between some of the parties only, the court may require the expense
of such litigation to be paid by the parties there, or any of them.

§ 598. Single referee.] The court, with the consent of the parties,
inay appoint a single referee, instead of three referees, in the proceed-
ings under this chapter; and the single referee, when thus appointed,
lias all the poweiu and may perform all the duties required of the
three referees.*

§ 5{)4. Abstract of title — cost of same.] If it appears to the court
that it was necessary to' have made an abstract of the title to the
l)roperty to be partitioned, and such abstract shall have been procured
by the plaintiff*, or if the plaintiff shall have failed to have the same
made before the commencement of the action, and any of the defend-
ants shall have had such abstract afterwards made, the cost of the
abstract, with interest thereon from the time the same is subject to
the inspection of the respective parties, must be allowed and taxed.
Whenever such abstract is produced by the plaintiff*, before the com-
mencement of the action, he must file with his complaint a notice
that an abstract of the title has been made, and is subject to the
inspection and^ use of all the parties to the action, designating therein
where the abstract will be kept for inspection. But if the plaintiff
shall have failed to procure such abstract befoi'e commencing the
action, any defendant shall procure the same to be made, he shall as
soon jts he has directed it to be made, file a noticejbhereof in the action
with the clerk of the court, stating who is making the same, and

87

578 Civil Actions, Code of Civil Procedure^

where it will be kept when finished. The court, or the judge thereof^
may direct from time to time, during the progress of the action, who
shall have the custody of the abstract.

§ 595. Who makb abstracts.] The abstract mentioned in the last
preceding section may be made by any competent searcher of records,
and neecfnot be certified by the register o;f deeds or other oflScer, but
instead thereof, it must be verified by the affidavit of the person mak-
ing it, to the effect that he believes it to be correct; but the same may
be corrected from time to time if found incorrect, under the direction
of the court.

§ 596. Interest on disbursements.] Whenever, during the pro-
gress of the action for pajt-tition, any disbursements shall have been
ipaade, under the direction of the court or the judge thereof, by a party
thereto, interest must be allowed thereon from the time of making
such disbursements. , .

CHAPTER XXVIII.
foreclosure of mortgages.

FORECLOSURE. BY ADVEKTISBMENT.

§ 597. Power of sale.] Every mortgage of real property contain-
ing therein a power of sale, upon default oeing made in the condition
of such mortgage, may be foreclosed by advertisement in the cases and
manner hereinafter specified.

§ 598. Requisites of proceeding.] To entitle any party to give
notice as hereinafter prescribed, and, to make such foreclosure, it shall
be reauisite:

1. That Some default in a condition of such mortgage shall have
accrued Iby which the power to sell has become operative.

2. That no action or proceedings shall have been instituted at law
to recover the debt then remaining secured by such mortgage, or any
part thereof, or, if any action or proceeding has been instituted, that
the same has been discontinued, or, that an execution, upon the judg-
ment rendered therein, has been returned unsatisfied, in whole or m
part; and,

3. That the mortgage containing such power of sale has been .duly
recorded, and, if it shall have been assigned, that all the assignments
thereon have been duly recorded in the county where such mortgaged
premises are situated.

§ 599. Installments taken separate.] In cases of mortgages given
to secure the payment of money by installments, each of the install-
ments mentioned in such mortgage, after the first, shall be taken and
d6emed to be a separate and independent mortgage, and such mort-
gage, for each of such installments, may be foreclosed in the sams
manner and with like efiect, as if such separate mortgage were given
for each such subsequent installment; and a redemption oi any such sale^
shall have the like effect as if the sale for such installment had been
made upon a prior, i\idependent mortgage.

\

•»

Code of Civil Procedure, Civil Actions, * 579

§ 600. Publishing notice.] Notice that such mortgage will be
foreclosed by sale of the mortgaged premises, or some part of them,
must be given by publishing the same for six successive weeks, at least
once in each week, in a newspaper of the county where the premises
intended to be sold, or some of them, are situated, if there be one, and,
if not, then in the nearest newspaper published in the territory.

§ 601. Contents oi^ same.] Every notice must specify:

1. The names of the mortgagor and mortgagee, and the assignee, if
any.

2. The date of the mortgage.

3. The amount claimed to oe due thereon at the date of the notice.

4. A description of the mortgaged premises, conforming substan-
tially with that contained in the mortgage; and,

5. The time and place of sale.

§ 602. Manner op sale.] The sale must be at public auction,
between the hours of nine o'clock in the forenoon and the setting of
the sun on that day, in the county in which the premises to be sold^ or
some part of them, are situated, and must be made by the person
appointed for that purpose in the mortgage, or by the sheriflF, or his
deputy, of the county, to the highest bidder.

I 603. Postponement op sale.] Such sale may be postponed, from
time to. time, by inserting a notice of such postponement, as soon as
practicable, in the newspaper in which the original advertisement was
published, and continuing such publication until such time to which
the sale shall be postponed, at the expense of the party requesting such
postponement.

§ 604. Separate sales op tracts.] If the mortgaged premises con-
sist of distinct farms, tracts, or lots, they must be sold separately, and
no more farms, tracts, or lots, must be sold than shall Tbe necessary
to satisfy the amount due on such mortgage at the date of the notice
of sale, with interest and the costs and expenses allowed by law.

§ 605. Mortgagee may purchase.] The mortgagee, his assigns, or
their legal representatives, may, fairly and in good faith, purchase the
premises so advertised, or any part thereof at such sale.

§ 606. Certipicate op sale.] Whenever any real property shall be
sold by virtue of a power of sale contained in any mortgage, the oflBcer
or pei*son making tne sale shall immediately give to the purchaser a
certificate of sale containing:

1. A particular description of the real property sold.

2. The price bid for each distinct lot or parcel.

3. The whole price paid.

And such officer or person shall file in the office of the register of
deeds where the mortgage is recorded, within ten days from the day of
sale, a duplicate of such certificate; which certificate must be executed
and acknowledged, and may be recorded as provided in case of a
certificate of sale of real property upon execution, and shall have the
same validity and effect.

§ 607. Redemption — by , whom — rights.] The property sold may
be redeetned within one year from the day of sale in like manner and
to the same effect as provided in chapter aIII of this 6ode for redemp-
tion of r^al property sold upon execution, so far as the same may be
applicable by:

580 Civil Actions. Code of Civil Procedure.

1. The mortgagor or his successor in interest in the whole or any
part of the property.

2. A creditor having a lien by judgment or mortgage on the prop-
erty sold, or on some share or part thereof subsequent to that on
which the property was sold. Such creditor is termed a redemptioner,
and has all the rights of a redemptioner under that chapter.

And the mortgagor and his successor in interest*, has all the rights of
the judgment debtor and his successor in interest as provided therein.

§ 608. Notice to officer.] The notice of redemption required to
be given to the sheriflf' under that chapter, may, m foreclosure by
advertisement, be given to the officer or person making the sale.

§ 609. Deed.] If such mortgaged premises be not redeemed, it
shall be the duty of the officer, or nis successor in office, or other per-
son, who sold the same, or his executors or administrators, or sbme
other person appointed by the district court for that purpose, to
complete such sale, by executing a deed of the premises so sold, to
the original purchaser, his heirs, or assigns, or to any person who may
have acquired the title and interest of such purchaser, by redemption
or otherwise.

§ 610. Overplus.] If after any such sale, there remain in the
hands of the officer, or other pei'son making the sale, any surplus
money, after satisfying the moii:gage on such real property sold,
and payment of the costs and expenses of such forclosure and sale,
the suinplus must be paid over by such officer or other person, on
demand^ to the mortgagee, his legal representatives or assigns.

§611. Record evidence of sale.| Any party desirmg to per-
petuate the evidence of any su(*h sale, made in pui'suance of these
provisions, may proceed :

1. An affidavit of the publication of the notice of the sale, and of
any notice of postponement may be made by the printer or publisher
of a newspaper in which such notice was published, or some personin
his employ knowing the facts.

2. An affidavit of the fact of any sale pursuant to such notice, to be
made by the person who acted as auctioneer at the sale, stating the?
time and place, the sum bid, and the name of the purchaser.

The affidavits specified in this section may be taken and certified by
any officer authorized to administer oaths.

§ 612. Affidavits recordbd.1 Such affidavits must be recorded at
length by the register of deeas of the county in which the real
property is situated, in a book kept for the record of mortgages, and
such original affidavits, the record thereof, and certified copies of
such record, sliall be prima facie evidence of tlie facts therein con-
tained.

§ 613. Reference note.] A note referring to the page and book
where the evidence of any sale having been made under a mortgage
is recorded, shall be made by the register recordmg such evidence m
the margin of the record of such mortgage.

§ 614. Effect of record and deed.] A record of the affidavits
aforesaid, and the deed executed, upon the sale of the real property
shall vest in the purchaser or person acquiring title thereto, by
redemption or otherwise, the same force and validity as th6 deed upon
foreclosure by action provided for in section 623 of this code.

Code of Civil Procedure. Civil Actions. 581

§ 615, Costs and attorney's fee.] The party foreclosing a mort-
gage by advertisement shall be entitled to his costs and disbursements,
out of the proceeds of the sale, in addition to any attorney fee agreed
upon in the mortgage.

FORBCLOSURB BY ACTION,

§ 616. Where realty situate — service of process.] Actions for
the foreclosure or satisfaction of mortgages may be brought in the
district court of the county or judicial subdivision where the mort-
gaged real property, or some portion thereof, is situated, and in case any
defendant oe not a resident of the county or subdivision, process may
be served on him in any other county or subdivision within the terri-
tory; or, if he be a non-resident of the territory, or absent, or con-
cealed, the same proceedings may thereupon be had as are provided by
this code in such cases.

§ 617. Judgment includes.] Whenever an action shall be brought
for the foreclosure or satisfaction of a mortgage, the court shall /have
power to render a judgment against the mortgagor for the amount of
the mortgage debt due at the time of the rendition of such judgment,
and the costs of the action, and to order and decree a sale of the mort-
gaged premises, or such part thereof as may be sufficient to pay the
amount so adjudged to be due, and (^osts of sale, and shall have
power to order and compel the delivery of the possession of the
premises to the purchaser; but in no case under this chapter shall the
possession of the premises so sold, be delivered to the purchaser, or
person entitled thereto until after the expiration of one year from
such sale; and the court may direct the issuing of an execution for
the balance that may remain unsatisfied after applying the proceeds
of such sale.

§618. Action exclusive.] After such action shall be commenced
while the same is pending, no proceedings at law shall be had for the
recovery of the debt secured by the mortgage, or any part thereof,
unless authorized by the court.

§619. Other party. | If the mortgage debt be secured by the
obligation, or other evidence of debt, of any other person than the
mortgagor, the plaintiff may make such other person a party to the
action, and the court may render judgment for the balance of such
debt remaining unsatisfied, after a sale of the mortgaged premises, as
well against such other person as against the mortgagor, and may
enforce such judgment as in other cases, by execution or other process.

§ 620. Complaint to state.] In an action for the foreclosure or
satisfaction of a mortgage, the complaint shall state whether any

Sroceedings have been had at law or otherwise for the recovery of the
ebt secured by such mortgage, or any part thereof; and if there has,
whether any and what part thereof has been collected.

§ 621. Judgment at law.] If it appear that any judgment has
been obtained in an action at law for the moneys demanded by such
complaint, or any part thereof, no proceedings shall be had in such
case unless an execution against the property of the defendant in such
judgment has been issued, and the sheriff or other officer shall have
maae return that the execution is unsatisfied in whole or in part, and
that the defendant has no property whereon to satisfy such execution.

582 Civil Actions. Code of Civil Procedure.

§ 622. Sales by whom and where.] All sales of mortgaged prem-
ises under an order and decree of foreclosure must be made by a
referee, sheriflF, or his deputy, of the county or subdivision where the
court, in which the judgment or decree is rendered, is held, or other
person appointed by the court for that purpose, and must be made in
the county or subdivision where the premises, or some part of them
are situated, and shall be made upon the like notice and in the same
manner as provided by law for the sale of real property upon
execution.

§ 623. Certificate of sale — deed aijd effect.] Whenever any
real property shall be sold under an order, decree, or judgment of
foreclosure, under the provisions of this chapter, the officer or other
person making the sale must give to the purchaser a certificate of sale
as provided by section 606 of this code; and at the exj^iration of the
time for the redemption of such mortgaged premises, if the same be
not redeemed, the person or officer making the sale, or his successor in
office, or other officer appointed by the court, must make to the pur-
chaser or purchasers, their heirs or assigns, or to any person acquiring
the title of such purchaser, by redemption or otnerwise, a deea
or deeds to such premises which shall vest in the purchaser
or other party entitled thereto, the same estate that was vested in
the mortgagor at the time of the execution and delivery of the mort-
gage, or at any time thereafter; and such deed shall be as valid as if
executed by the mortgagor and mortgagee, and shall be a complete
bar against each of them, and against all the parties to the action in
which the judgment for such sale was rendered, and against their
heirs respectively, and all persons claiming under such heirs.

§ 624. Proceeds — overplus.] The proceeds of every such sale
must be applied to the discharge of the debt adjudged by the court
to be due, and of the costs; and, if there be any overplus, it must be
brought into court for the use of the defendant or of the person
entitled thereto, subject to the order of the court.

§ 625. Same.] If such overplus, or any part thereof, shall remain
in court, for the term of three months, without being applied for, the
judge of the district court may direct the same to be put out at
interest, for the benefit of the defendant, his representatives or
assigns, subject to the order of the court.

§ 626. Part payment.] Whenever an action shall be commenced
for the foreclosure of a mortgage upon which there shall be due any
interest, or any portion or installment of the principal, and there
shall be other portions or installments to become due subsequently,
the complaint shall be dismissed upon the defendants bringing into
court at any time before decree of sale, the principal and interest due,
with costs and disbursements.

§ 627. Same before sale.] If at any time before sale, the defend-
ant shall bring into court the principal and interest due, with cost^
the proceedings in such action shall be stayed until a further default;
and in case of a subsequent default in the judgment [payment] of any
of the installments, or any part thereof, of such mox'tgage, the court
may enforce by order or other process the collection of such subse-
quent installment.

'Code of Civil Procedure. Civil Actions. 583

§ 628. Referee view premises.] If the defendant shall not bring
into court the amount due, with costs, or if any other cause, a judgment
or decree shall be entered for the plaintiflF, the court may appoint a
referee to ascertain and report the situation of the mortgaged
premises, or may determine the same on oral or other testimony, and
if it shall appear that the same can be sold in parcels, without injury
±0 the interests of the parties, the decree must direct so much of the
mortgaged premises to be sold as will be sufficient to pay the amount
then due on such mortgage, with costs, and such judgment or decree
shall remain as security for any subsequent default.

§ 629. Successive judgments and sales.] If, in the case mentioned
in the preceding section, there shall be any default, subsequent to
such judgment or decree, in the payment of any portion or install-
ment of the principal, or of any interest due upon such mortgage, the
court may, upon the application of the plaintiff, by a further order
founded upon such first judgment or decree, direct a sale of so much
of the mortgaged premises to be made, under such decree, as will
be sufficient to satisfy the amount so due with costs of the application
and the subsequent proceedings thereon; and the same proceedings
may be had as often as a default happen.

I 630. Sale of whole on first default.] If, in any of the fore-
going cases, it shall appear to the court that the mortgaged premises
are so situated that a sale of the whole will be most beneficial to the
parties, the judgment or decree must, in the first instance, be entered
lor the sale of the whole premises accordingly.

§ 631. Rebate on undue part.] In such case the proceeds of such
sale must be applied as well to the interest or portion or installment
of the principal due, as towards the whole or residue of the sum
secured by such mortgage, and not due and payable at the time of such
sale, and if such residue do not bear interest, then the court may
direct the same to be paid with a rebate of the legal interest for the
time during which residue shall not be due and payable, or the court
may direct the balance of the proceeds of such sale, after paying the
sum due, with costs, to be put out at interest for the benefit of the
plaintiflF, to be paid to him as the installments or* portions of the prin-
cipal or interest, may become due, and the surplus for the benefit of
the defendant, his representatives or assigns, to be paid to them by
order of the court.

§632. Appeals,] Appeals to the supreme court may be taken in
actions for the foreclosure of mortgages in the same manner as in
other civil actions.

§ 633. Redemption.] All real property sold upon foreclosure of
mortgages, by order, judgment, or decree of court, may be redeemed
at any time within one year after such sale, as prescribed by section
635 of this chapter upon foreclosure by advertisement.

§ 634. Restraint of injury.] The court may, by injunction, on
good cause shown, restrain the party in possession from doing any
act to the injury of real property during the existence of the lien or
foreclosure of a mortgage thereon, and until the expiration of the
time allowed for redemption.

584 Civil Actions. Code of Civil Procedure^

CHAPTER XXIX.

ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND*

OTHER ACTIONS CONCERNING REAL ESTATE.

§ 635. Ejectment.] An action may be brought by any person against
another who claims an estate or interest in real property advei*se to
him, for the purpose of determining such adverse claim.

§ 636. Default no costs.] If the defendant in such action dis-
claim in his answer any interest or estate in the property, or suflfer
judgment to be taken against him without answer, the plaintiff can-
not recover costs.

§ 637. Description.) In an action for the recovery of real property
it must be described in the complaint with such certainty as to enable
an officer, upon execution, to identify it.

§ 638. Joinder of defendants.] In an action brought by a pei-son
out of possession of real property, to determine an adverse claim
of an interest or estate therein, the person making such advei'se claim
and persons in possession may be joined as defendants, and if the judg-
ment be for the plaintiff, he may have a writ for the possession of the
premises, as against the defendants in the action, against whom the
judgment has passed.

§ 639. Of plaintiffs.] Anv two or more persons claiming any
estate or interest in lands under a common source of title, whether
holding as tenants in common, joint- tenants, co-parcenei's, or in sever-
alty, may unite in an a(*tion aeainst any person claiming an adverse
estate or interest therein, for tne purpose of determining such adverse
claim, or of establishing such common source of title, or of declaring
the same to be held in trust, or of removing a cloud upon the same.-

§ 640. Right failing after action.] In an ai^tion for the recovery
of real property, where the plaintiff* shows a right to recover at the
time the action was commenced, but it appears that his right has
terminated during the pendency of the action, the verdict and judg-
ment must be according to the fact, and the i)laintiff* may recover
damages for withholding the property.

§ 641. Improvements in good faith. | In an action for the recovery
of real property, upon which permanent improvements have been
made by a defendant, or those under whom he claims, holding under
color of title adversely to the claim of the plaintiff, in good faith, the
value of such improvements must be allowed as a counter-claim hy
such defendant.

§ 642. Same how pleaded.] The counter-claim in such action
must set forth, among other things, the value of the land aside from;
the improvements thereon, and also as accurately as practicable the
improvements upon the land and the value thereof.

8 643. Specific findings.] Issues may be joined and tried as in
other actions, and the value of the land aside from the value of the
improvements thereon, and the separate value of the improvements
must be specifically found by the verdict of the jury, the report of the
referee, or the findings of the court.

p

Code of Civil Procedure. Civil Actions, 585

§644. Cross JUDGMENTS -adjustment.] The judgment of the court
upon such finding, if in favor of the plaintiflF, for the recovery of the
real property, and in favor of the defendant for the counter-claim,
shall require such defendant to pay to the plaintiff* the value of the
land as determined by such finding, and the damages, if any, recovered,
for withholding the same, and for waste committed ujDon such land by
the defendant, within sixty days from the rendition ot such judgment,
and in default of such payment by the defendant, that the pTaintifT
shall pay to the defendant the value of the improvements as deter-
mined by such finding, less the amount of any damages so recovered
by plaintiff* for withholding the property, and for any waste committed
upon such land by the defendant, and until such payment, or tendeiv
and deposit in the office of the clerk of the court, in which such action
is pending, no execution or other process shall issue in such action to
dispossess such defendant, his heirs or assigns.

§ 645. Right of entry.] The court in which an action is pending
for the recover}^ of real property, or for damages for an injury thereto,
or a judge thereof, may, on motion, upon notice by either party, for
good cause shown, grant an order allowing to such party the right to*
enter upon the property, and make survey and measurement thereof,
and of any tunnels, shafts, or drifts thereon, for the purpose of the
action, even though entry for such pui-pose has to be made through
other lands belonging to parties to the action.

§ 646. Order for service.] The order must describe the property,,
and a copy thereof must be served on the owner or occupant; and
thereupon such jjarty may enter upon the property, with necessary
surveyors and assistants, and make such survey and measurement; but
if any unnecessarj^ injury be done to the property, he is liable therefor.

§ 647. Purchaser under execution.] When real property has been
sold on execution, the purchaser thereof, or any person who may have-
succeeded to his interest, may, after his estate becomes absolute,,
recover damages for injury to the property by the tenant in possession
after sale, and before possession is delivered under the conveyances.

§ 648. Alienation not to affect action.] An action for the
recovery of real property against a person in i)ossession cannot be
prejudiced by any alienation made by such person, either before or
after the commencement of the action.

§ 649. Mining customs,] In actions respecting mining claims, proof
must be admitted of the customs, usages, or regulations established
and in force at the bar or diggings embracing such claim; and such
customs, usages, or regulations, when not in conflict with the laws of
this territory and of the United States, must govern the decision of
the action.

§ 650. Occupying claimants.] Any person settled upon the public
lands belonging to the United States, on which settlement is not.
expressly prohibited by congress, or some department of the general
government, may maintain an action for any injuries done the same;
also an action to recover the possession thereof, in the same manner
as if he possessed a fee-simple title to said lands.

586 Civil Actions. Code of Civil Procedure,

CHAPTER XXX.

ACTION FOR NUISANCE, WASTE, AND WILLFUL TRESPASS ON REAL PROPERTY.

§ 651. Nuisance defined — who may bring action.] Anything
which is injui'ious to health, or indecent, or offensive to the senses, or
an ohstruction to the free use of property, so as to interfere with the
"Comfortable enjoyment of life or property, is a nuisance, and the
subject of an action. Such action may be brought by any person
whose property is injuriously affected, or whose personal enjoyment is
lessened by the nuisance; and by the judgment the nuisance may be
enjoined or abated, as well as damages recovered.

I 652. Waste- ^ when actionable.] If a guardian, tenant for life or
years, joint tenant' or tenant in common of real property, commit waste
thereon, any person aggrieved by the waste may bring an action against
him therefor, in which action there may be judgment for treble
■damages, forfeiture of the estate of the party offending, and eviction
from the premises.

§ 653. To WHOM JUDGMENT GIVEN.] Judgment of forfeiture and
eviction shall only be given in favor of the person entitled to the
reversion against the tenant in possession, when the injury to the
estate in reversion shall be adjudged in the action to be equal to the
value of the tenant's estate or unexpired term, or to have been done
in malice.

CHAPTER XXXI.

ACTION TO ENFORCE MECHANICS^ LIENS.

§654. No LIEN.] No person is entitled to a mechanic's lien who
takes collateral security on the same contract.

§ 655. Lien to whom and for what.] Every mechanic, or other
jjerson who shall do any labor upon, or furnish any materials, machinery,
or fixtures for any building, erection, or other improvements upon
land, including those engaged in the construction or repair of any
work of internal improvement, by virtue of any contract with the
owner, his agent, trustee, contractor, or sub-contractor, upon comply-
ing with the provisions of this chapter, shall have for his labor done,
or materials, machinery, or fixtures furnished, a lien upon such build-
ing, erection, or improvement, and upon the land belonging to such
•owner, on which the same is situated, to secure the payment of such
labor done, or materials, machinery, or fixtures furnished.

§ 656. Proceedings by sub-contractor.] Every sub-contractor wish-
ing to avail himself of the benefits of this chapter, shall give notice
to the owner, his agent, or trustee, before or at the time he furnishes
any of the things aforesaid or performs any labor, of his intention to
perform the same, and the probable value thereof; and if afterwards
the things are furnished or labor done, the sub-contractor shall settle
with the contractor therefor, and the settlement in writing, signed by
the contractor and certified by him to be just, shall be given to the

Code of Civil Procedure^ Civil Actions. 587

owner, his agent or trustee, within thirty days from the time the
things shall have been furnished, or the labor performed; the sub-con-
tractor shall file with the clerk of the district court of the county or
judicial subdivision in which the building, erection, or other improve-
ment is situated, a copy of such settlement, which shall be a lien on
such building, erection, or other improvement for which the things
were furnished or the labor performed; and shall at the time file a
correct description of the property to be charged with the lien, the
correctness of which shall be verified by affidavit. (fl^^^voi, ^t\

% 657. Notice presumed- lien filed in sixty days — limitation.]
Every railway owner, company, or contractor and sub-contraLctor upon
any railway, shall be deemed to have the notice provided for by the pre-
ceding section for a period of sixty days from the last day of the
month in which such labor was done, or material* furnished, during
which period any person who has performed such labor, or furnished
such material may file a lien with the clerk of the district court as
provided in the preceding section, which lien shall be binding upon
the erection, excavation, embankment, bridge, road-bed or right of
way, and upon all land upon which the same may be situated, to the
full value of such labor or material, in the county or judicial subdi-
vision in which the same is filed. In case the lien is sought to be
enforced against the owner, the liability shall not be greater than his
liability would have been to the owner at the time the labor was per-
formed or material furnished; but the liability of the owner, in case
actual notice shall be given after the sixty days, shall be the same
as provided in this chapter.

§ 658. Lien in six months affidavit- statement.] Every sub-
oontractor may, at any time within six months after his labor is
performed or materials furnished, make a statement thereof in writing,
supported by affidavit that the same is just and true, and file the same
with the clerk of the district court of the proper county or judicial
subdivision, and give notice thereof, with a copy of such statement to
the owner, his agent, or trustee, anfl to the contractor; and from and
after the service of such notice, his lien therefor, shall have the same
force and effect, and be prosecuted in like manner as a lien by the
contractor, but shall be enforced against the property only to the
extent of the balance due to the contractor at the time of the service
of such notice upon the owner, his agent or trustee.

§ 659, If settlement refused.] In case the contractor shall
refuse to make and sign such settlement, then the sub-contractor may
make a just and true statement of the labor done, or things furnished,
giving all credits, which he shall present to the owner, his agent, or
trustee, and shall also, within said thirty days, file a copy of the same,
verified by affidavit, with the clerk of the district court of the
county or judicial subdivision in which the building, erection, or
other improvement is situated, together with a correct description
of the property to be charged with the lien.

§ 660. Effect of certificate.] The certificate of settlement or
statement of the sub-contractor, shall be a justification to the owner
in withholding from the contractor the amount appearing thereby to
be due the sub-contractor until the same has been paid, and the

588 Civil Actions. Code of Civil Procedure,

owner shall become the surety of the contractor to the sub-contractor
for the amount due to the extent before provided,

§ 661. Service of notices.] The notices mentioned in this chapter
mav be served by any sheriff or constable, and the return thereon
shall be received in evidence without further proof.

§ 662. Liens of other persons.] Every person, except as has been
provided for sub-contractors, who wishes to avail himself of the pro-
visions of this chapter, may file with the clerk of the district court
of the cpunty or judical subdivision in which the building, erection,
or other improvement to be charged with the lien is situated, and
within ninety days after all the things aforesaid shall have been fur-
nished or the labor done, a just and true account of the demand due him
after allowing all credits, and containing a correct description of the
property to be charged with said lien, and verified by affidavit; but a
failure to file the same within the time aforesaid shall not defeat the
lien, except against purchasers or incumbrancers in good faith, with-
out notice, whose rights accrued after the ninety days and l>efore any
claim for the lien was filed.

§ 663. Clerk's record entries.] The clerk of the district court
shall indorse upon every account the date of its filing, and make an
abstract thereof in a book to be kept by him for that purpose, and
properly indorsed, containing the date of its filing, the name of the
person filing the lien, the amount of said lien, the name of the pei'son
against whose property the lien is filed, and a description of the prop-
erty to be charged with the same.

§ 664. Priority op liens.] The liens for labor done or things fur-
nished shall have priority in the order of the filing of the accounts
thereof as aforesaid, and shall be preferred to all other liens and
incumbrances which may be attached to or upon said building, erection,
or other improvement, and to the land on which the same is situated,
or either of them, made subsequent to the commencement of said
building, erection, or other improvement.

§ 665. Extent of liens — on leased land.] The entire land upon
which any such building, erection, or other improvement is situated,
including that portion of the same not covered therewith, shall be
subject to all liens created by this chapter, to the extent of all the
right, title, and interest owned therein by the owner thereof, for whose
immediate use or benefit such labor was done or things furnished, and
when the interest owned in said land by such owner of §uch building,
erection, or other improvement, is only a lease-hold interest, the
forfeiture of such lease for the non-payment of rent, or for non-
compliance with any of the other stipulations therein, shall not for-
feit or impair such liens so far as it concerns such buildings, erections,
and improvements, but the same may be sold to satisfy said lien, and
be removed within thirty days after the sale thereof by the
purchaser.

§ 666. Lien superior to mortgage when.] The lien for the things
aforesaid, or work, shall attach to the buildings, erections, or improve-
ments, for which they were furnished or done, in preference to any
prior lien or incumbrance, or mortgage upon the land upon which the
same is erected or put, and any person enforcing such lien, may have
such building, erection, or other improvement, sold under execution.

r

I.

Code of Civil Procedure. Civil Actions. 589

and the purchaser may remove the same within a reasonable time
thereafter.

§ 667. Action to enforce.] Any person having a lien by virtue of
this chapter may bring an action to enforce the same in the district
court 01 the county or judicial subdivision wherein the property is
situated.

§ 668. Demand upon Lienor.] •Upon the written demand of the
owner^ his agent or contractor, served on the person holding the lien,
requiring him to commence suit to enforce such lien, such suit shall
be commenced in thirty days thereafter or the lien shall be for-
feited.

§ 669. Owner defined.] Every person for whose immediate use
^nd benefit any building, erection, or improvement is made, having
the capacity to contract, including guardians of minors, or other
persons, shall be included in the word owner thereof.

§670. Satisfaction of liens- penalty.] Whenever a lien has
been claimed by filing the same in the clerk's officS, and it is after-
wards paid, the creditor shall acknowledge the satisfaction thereof on
the proper book in such office, or otherwise, in writing, and if he
negler*,ts to do so for ten days after demand, he shall forfeit and pay
twenty-five dollars to the owner or contractor, and be liable to any
person injured to the extent of the injury.

I 671. SuB-coNTRACTOR DEFINED.] All pcrsous fumishiug things or
doing work provided for by this chapter, shall be considered sub-con-
tractors, except such as have therefor contracts directly with the
owner, proprietor, his agent or trustee.

LIENS FOR KEEPING AND PASTURING STOCK.

§ 672. Who have liens.] Any farmer, ranchman, or herder of cattle,
tavern, keeper, or livery stable keeper, to whom any horses, mules,
cattle, or sneep, shall be entrusted for the purpose of feeding, herding,
pastuiing, or ranching, shall have a lien upon said horses, mules, cattle,
or sheep, for the amount that may be due for such feeaing, herding,
pasturing, or ranching, and shall be authorized to retain possession of
such horses, mules, cattle, or sheep, until the said amount is paid;
Provided, That these provisions shall not be construed -to apply to
stolen stock.

§ 673. Lien only against owner.] The provisions of this act shall
not be construed to give any farmer, rancnman or herder of cattle,
tavern keeper or livery stable keeper, any lien upon horses, mules, cat-
tle, or sheep, put into their keeping, for the purposes mentioned in the
previous section, when said property was not owned by the person
entrusting the same at the time of delivering them into the possession
of said farmer, ranchman, herder, tavern keeper, or livery stable keeper.

CHAPTER XXXII.

ACTION TO foreclose LIENS orf CHATTELS.

§ 674. Who may maintain — requisites of judgment.] An action to
foreclose a lien upon a chattel may be maintained by an innkeeper;

590 Civil Actions. Code of Civil Procedure.

boarding-house keeper, mechanic, workman, bailee, or other person
having a lien at common law or under the statutes of this territory.
A judgment in favor of the plaintiff must specify the amount of the
lien and direct a sale of the chattel, to satisfv the same and costs, bv
the sheriff or other officer of the court in like manner as when the
sheriff sells personal property under execution, and the application
by him of the proceeds of the sale, less his fees and expenses, to the
payment of the judgment and costs. The jlidgment must also pro-
vide for the payment of the surplus to the owner of the chattel, and
for the safe keeping of such surplus if necessary, until it is claimed
by him.

§ 675. Justice's jurisdiction,] A justice of the peace has jurisdic-
tion of such action, in all cases to enforce liens upon personal prop-
erty where the amount of the lien claimed is less than one hundred
dollars, concurrent with the district court; ^ Provided, This chapter
shall not be construed to affect any other existing right or remedy to
foreclose or enforce a lien upon a chattel.

CHAPTER XXXIII.

DAMAGES FOR INJURIES TO PERSONS AND PROPERTY. '

§ 676. Loss OF LIFE BY RAILROAD.] If the life of any person not in
the employment of a railroad corporation, shall be lost, in this terri-
tory, by the reason of the negligence or carelessness of the proprietor or
f)roprietors of any railroad, or by the unfitness, or negligence or care-
essness .of their employes or agents, the personal representatives of
the person whose life is so lost, may institute suit and recover dam-
ages in the same manner that the person might have done for any
injury where death did not ensue.

§ 677. Who may sue — punitive damages.] If the life of any per-
son or persons is lost or destroyed by the neglect, carelessness, or
unskillfulness of another person or persons, company or companies,
corporation or corporations, their or his agents, or servants or
employes, then the widow, heir, or personal representatives of the
deceased shall have the right to sue such person or persons, company
or companies, corporation or corporations, and recover punitive dam-
ages for the loss or destruction of the life aforesaid.

§ 678. For stock injured.] All railroad corporations in this terri-
tory shall pay full damages to the owner or owners of horses and
other stock and cattle that they may negligently or carelessly kill or
damage by their cars, locomotives, agents, or employes, along saiS
railroad or its branches, within the Tenitory of Dakota.

§ 679. Presumption.] The killing or damaging of any horses, cattle,
or other stock, by the cars or locomotives along said railroad or
branches, shall be prima. facie evidence of carelessness and negligence *
of said corporation, •

§680. rROOBBDiNos.] • Whenever any horses, cattle, or stock
may be kiUed or crippled by any train of cars or locomotives upon
any railway within this territory, it shall be lawful for the owner of

Code of Civil Procedure. Civil Actions. 591

the horses, stock, or cattle so killed or crippled, after first giving a
station agent of the corporation to which said railway shall belong,
written notice of his intention, to apply to a justice of the peace within
the caunty in which said stock may have been killed or crippled, to
apmint appraisei-s to affix a value upon the horses, cattle or stock so
killed or crippled, and said justice of the peace shall appoint three
discreet and disinterested citizens of the county a board of appraisers,
who after having been duly sworn, shall examine the horses, cattle, or
stock so killed or crippled, and affix a value upon the same if killed,
or a|8see8 the damages to the same if crippled, and return to said
justice of the peace a written report, describing the horses, cattle,
or stock, stating whether they were killed or crippled, and also
setting out the valuation or assessment of damage made by them;
which report said justice shall preserve as a part of the records of
his office.

§ 681. Action ip corporation pail.| In case the corporation shall
fiail, for the space of sixty days, to pay to the owner of the horses,
cattle or stock so killed or crippled, the full amount assessed by said
board of appraisers, and one-half the costs attending the assessment,,
the owner shall have the right to institute an action, in any court, in
the county of competent jurisdiction, on the original cause of action;
and if upon the trial of this action the owner recovers a verdict, it
shall be the duty of the court to render judgment in the owner's favor
for the amount of said verdict, and all costs incurred subsequent to tlxo
killing or crippling; but if the owner fails to recover a verdict, the
costs of the action shall be taxed against him.

§ 682. Fees.] The justice of the peace and the three appraisers
shall receive for their services under thitj act, each, the sum of one
dollar, to be paid equally by the railroad corporation, owner or owners,
of the horses, cattle, or stock, killed or crippled.

Special Proceedings of a Civil Nature.

CHAPTER XXX IV.

PRELIMINARY PROVISIONS.

§ 683. Parties.] The party prosecuting a special proceeding may-
he known as the plaintiff, and the adverse party as the defendant.

§684. Definitions.] A judgment in a special proceeding is the
final jjetermiuation of the rights of the parties therein. The dehnitions
qf a motion and an order in a civil action are applicable to similar
acts in a special proceeding.

592 Civil Actions. Code of Civil Procedure.

writ of certiorari.

§ 685. When and by whom grantbd;] A writ of certiorari may be
granted by the supreme and district courts when inferior courts,
officers, boards, or tribunals have exceeded their jurisdiction, and there
is no writ of error or appeal, nor in the judgment of the court, any
other plain, speedy, and adeouate remedy.

§ 686. How COMMENCED. | The anplication must be made on affidavit
by the party beneficially interested, and the court may require a notice
of the application to be g:iven to the adverse party, or may grant an
order to show cause why it should not be allowed, or may grant the
writ without notice.

§ 687. To WHOM WRIT directed. 1 The writ may be directed to the
inferior' court, tribunal, board, or officer, or to any other person having
the custody of the record or proceedings to be certified.

§ 688. Keqdisites of writ.| The writ of certiorari shall command
the party to whom it is directed to certify fully to the court issuing
the writ, at a specified time and plar^, and annex to the writ a
transcript of the record and proceedings, describing or referring to
them, with convenient certainty, that the same may be reviewed by
the court: and requiring the party in the meantime to desist from
further proceedings in the matter to be reviewed.

§ 689. Stay of proceedings.] If a stay of proceedings be not
intended, the woihIs requiring the stay must be omitted trom the writ;
these words may be inserted or omitted, in the sound discretion of the
court, but if omitted, the power of the inferior court, or officer, is not
suspended, or the proceedings stayed.

§ 690. ^5ervice.] The writ must be served in the same manner as a
ijummons in civil action, except when otherwise expressly directed by
the court.

§ 691. Extent of review.) The review upon this writ cannot be
extended further than to determine whether the inferior courts tri-
bunal, board or officer, has regularly pursued the authority of such
court, tribunal, board or officer.

§ 692. Return and hearing.] If the return of the writ be defective,
the court may order a further return to be made. When a full return
has been made, the court must hear the parties, or such of them as
may attend for that purpose, and may thereupon give judgment either
affirming or annulling, or modifying the proceedings below.

§ 693. Judgment sent below.] A copy of the judgment, signed by
the clerk, must be ti-ansmitted to the interior court, tribunal, board, or
officer, having the custody of the record or proceedings certified up.

§694. Judgment roll.| A copy of the judgment, signed by the
clerk, entered upon or attached to the writ and return, constitute the
judgment roll.

writ of mandamus.

§ 69^). By and to whom issued.] The writ of mandamus may be
issued by the supreme and district courts, to any inferior tribunal,
corporation, board or person^ to compel the performance of an act, .
which the law specially enjoins, as a duty resulting from an office,
trust, or station; or to compel the admission of a partj^ to the use and

i '

f

i

Code of Civil Procedure. Civil ActioKs. 598

enjoyment of a right or office to which he is entitled, and from which
he is unlawfully precluded by such inferior tribunal, corporation, board,
or person.

§ 696. Whbn issued.] The writ must be issued in all cases where
there is not a plain, speedy and adequate remedy, in the ordinary
course of law. It must be issued upon affidavit upon the application
of the party beneficially interested.

§ 697. Alternative ob peremptory.] The writ may be either
alternative or peremptory. The alternative writ must state generally
the allegation against the party to whom it is directed, and command
such party, immediately upon the receipt of the writ, or at some other
specified time, to do the act required to be performed, or to show cause
before the court, at a specified time and place, why he has not done so.
The peremptory writ must be in a similar form, except that the words
reqmring tne party to show cause why he has not done the command,
must be omitted, and a return day inserted.

§ 698. When eac« may issue.] When the application to the court
is made without notice to the adverse party, and the writ be allowed,
the alternative writ must be first issued; but if the application be
upon due notice, and the writ be allowed, the peremptory writ may
be isTOed in the first instance. The notice of the application, when

fiven, must be a,t least ten days. The writ cannot be gi-anted by
efanlt. The case- must be heard by the court, whether the adverse
partv appear or not.

§. 699. Answer. | On the return of the alternative writ, or the day
on which the application for the writ is noticed, the party on whom
the writ or notice has been served may show cause by answer, undet
oath, made in the same manner as an answer to a complaint in a civil
action.

% 700. Jury may assess DAMxaBS.] If an answer be made, which
raises a question as to a matter of fact essential to the determination
of the motion, and aflfecting the substantial rights of the parties; and
upon the supposed truth of which allegation the applicatior^ for the
writ is based, the court may, in its discretion, order the question to be
tried before a jury, and postpone the argument until such trial can be
had, and the verdict certified to the court. The question to be tried
must be distinctly stated in the order for trial, and the county or
subdivision must be designated in which the same shall be had. The
order may also direct the jury to assess any damages which the appli-
cant may have Sustained; in case they find for him.

§ 701. Latitude of proof.] On the trial the applicant is not
precluded by the answer from any valid objection to its sufficiency,
and may countervail it by proof, either in direct denial or by way of
avoidance.

§ 702. New trial.] The motion for'neW trial must be made in the
court in which the issue of fact is made.

§ 708; ' Transmission (>t verdict.] If no notice of a motion for a
new trial be givQn, or^ if given, the motion be denied, the clerk, within
five days after i-endition of the verdict or denial of the motion, must
transmit to the court in which the application for the writ is pending^
a ei^rtified copy of the verdiqt Attached to the order of trial, after which

38 ."•.''_. ..•

594 Civil Actions: fJode of Civil Procedure.

ieither party may bring on the argument of the application, upon
reasonable notice to the adverse party.

§ 704. Hearing.] If no answer be made, the case must be heard on
the papers of the applicant. If the answer raises only questions of
law, or i3uts in issue only immaterial statements, not affecting the
substantial i-ights of the parties, the court must proceed to hear, or fix
a day for hearing, the argument of the case.

§ 705. Damages — peremptory writ.] If judgment be given for the
applicant, he may recover the damages which he has sustained, as
found by the jury, or as may be determined bv the court or referee,
upon a reference to be ordered, together with costs; and for such
damages and costs execution may issue; and a peremptory mandamus
must also be awarded without delay.

§ 706. Service upon majority of board.] The writ must be served
in the same manner as summons in a civil action, except when other-
wise expressly directed by order of the court. Service upon a majority
of the members of any board or body is service upon the board or body,
whether at the time of the service the board was in session or not.

§ 707. Disobedience -PUNISHMENT.] When a peremptory mandamus
has )>eeu issued, and directed to an inferior tribunal, corporation,
board, or person, if it appear to the court that any member of such
tribunal corporation, board, or such person upon whom the writ has
been parsonally served, has, witholit just excuse, refused or neglected
to obey the same, the court, may, upon motion, impose a fine not
exceeding one thousand dollars. In case of persistence in a refusal
of obedience, the court may order the party to be imprisoned, until
the writ is obeyed, and may make any orders necessary and proper for
the complete enforcement of the writ.

writ op prohibition.

§ 708. Definition of writ. J The writ of prohibition is the counter-
part of the writ of mandamus. It arrests the proceedings of any
tribunal, corporation, board, or person, when such proceedings are
without or in excess of the jurisdiction of such tribunal, corporation,
T[)oard, or person.

§ 709. By whom and when issued.) It may be issued by the
supreme and district courts, to an inferior tribunal, or to a corpora-
tion, board, or person, in all cases where there is not a plain, speedy^
and adequate remedy in the ordinary com-se of law. It is issued upon
affidavit, on the application of the person beneficially interested.

§ 710. Alternative or peremptory.] The writ must be alternative
or peremptory. The alternaitiye writ must state generally the allega-
tion against the party to whom it is directed, and command such
party to desist or refraiji from further proceedings in the action or
matter specified therein, until further, order of the court fix>m which
it is issued, and to show cause before such courts at a ^specified time
and place, why such party should not be absolutely restrained from
any further proceedings in such action or matter. The peremptory
writ must be in a similar form, except that the words requiring the
party to show cause why he should not be absolutely restrained, etc*,
must be omitted and a return day inserted.

€o(ie of Civil Procedure. Civil Actions. 595

§ 711, Peocbedinos,] The provisions for the proceeding under the
writ of mandamus, except the first three sections thereof, apply to
"this proceeding.

MISCELLANEOUS PROVISIONS.

§ 712. Supreme or district judges.] Writs of certiorari, manda-
mus, and prohibition may be issued by any two justicesof the supreme
<50urt or by a judge of the district court, in vacation, and when issued
by a judge of the district court, may be made returnable, and a hear-
ing thereon be had in vacation.

8 713. Rules of practice.] Except as otherwise provided in this
chapter, the provisions of part two, of this code are applicable to and
constitute the rules of practice in the proceedings mentioned in this
chapter.

§ 714. New trials and appeals.] The provisions of part two, rela-
tive to new trials and appeals, except in so far as they are inconsistent
herewith, apply to the proceedings mentioned in this chapter.

CHAPTER XXXV.

• %

4

OF BUMMARY PROCEEDINGS.
CONFSSSION OF JUDOMBNT WITHOUT ACTION.

§715. For: WHAT CONFESSED.] A jadgment by confession maybe
entered without action, either for money due or to become due, or to
-secure any person against contingent liabibilitv on behalf of the
defendant or both, in the manner prescribed by this chapter.

§ 716. Verified statement — contents.] A statement in writing
must be made, signed by the defendant, and verified by his oath, to the
following effect:

1. It must state the amount for which judgment may be entered,
and authorize the entry of judgment thereior.

2. If the judgment to be confessed be for money due or to become
due, it must state concisely the facts out of which the debt arose,
and must show that the sum confessed therefor is justly due, or to
hecome due.

3. If the judgment to be confessed be for the purpose of securing
the plaintiff against a contingent liability, it mu.st state concisely the
facts constituting the liability, and must show that the sum confessed
therefor does not exceed the amount of such liability.

§ 717. Pbooeedings in court— execution.] The statement niust be
presented to the district court or a judge thereof, and if the same be
found sufficient, the court or judge shall indorse thereon an order
that judgment be entered by the clerk, whereupon it may be filed in
the office of the clerk who shall enter in the judgment book a judg-
ment for the amount confessed, with costs. The statement and affi-
davit, with the judgment, shall thenceforth become the judment i*oll.
Execution may be issued and enforced thereon, in the same manner
as upon judgments in other cases in such courts. When the debt fot

596 Civil Actions. Code of Civil Procedure,

which the judgment is recovered is not all due, or is payable in
installments and the installments are not all due, the execution may
issue upon such judgment for the collection of such installments as
have become due, and shall be in the usual form, but shall have
endorsed thereon, by the attorney or person issuing the same a
direction to the sheriflf to collect the amount due on such judgment,
with interest and costs, which amount shall be stated with interest
thereon, and the costs of said judgment. Notwithstanding the issue
and collection of such execution, the judgment shall remain as
security for the installments thereafter to become due, and whenever
any further installments become due, execution may, in like
manner, be issued for the collection and enforcement of the same.

SUBMITTING A CONTROVERSY WITHOUT ACTION.

§ 718. Requisites of the case.] Parties to a question in difference,
which might be the subject of a civil action, may, without action*
agree upon a case containing the facts upon which the controversy
dej)ends, and present a submission of the same to any court
which would have jurisdiction if an action had been brought. But
it must appear by affidavit that the controversy is real, and the pro-
ceeding in good faith, to determine the rights of the parties. The
court snail thereupon hear and determine the case, at a general term,
and render judgment thereon, as if an action were pending.

I 719. Judgment and roll.] Judgment shall be entered in the
judgment book, as in other cases, but without costs for any proceeding
prior to trial. The case, the submission, and a copy of the judgment
'$hall constitute the judgment roll.

8 720. When on civil judgment.] The judgment may be enforcjed
in the same manner as if it had been rendered in an action, and shall
%e subject to appeal in like manner. ' • . *

RELIEF OF PERSONS CONFINED IN JAIL ON CIVIL PROCB88.

§ 721. Discharge authorized.], lEvery person confined ip jail on
execution issued on judgment recovered in civil action, shall be dis-
charged, therefrom at the end of ten days from his first confinement
therein, upon the conditions hereinafter specified.

§ 722. Notice of application.] Such person must cause notice in
writing to be givei^ to the plaintiff when and where he will apply to
the ju^e of the district court in which the judgment was submitted,
for the purpose of obtaining a discharge from his imprisonment.

§ 723. Service of notice.] Such notice must be served by deliver-
ing to and leaving with the plaintiff, his agent, or attorney, a copj'
thereof, at least one day before the hearing of the application, when
the plaintiff, his agent or attorney served, live in the town or city where
the application is to be heard, to which time of service one day must
be added for every twentj^ mil^s, or fraction thereof, the plaintiff, his
agent, or attorney, served shall reside distant from the place of hearing.

§ 72*4. Hearing.] At the time and place speciifiea in the notice,
such person must be taken under th^ custody of the sheriff before sucj>
district judge ah4 examined on oath concernitig hife pro;|f)ert>' and
effects, and the disposal thereof, and his ability to pky the judgment

Code of Cwil Procedure. Civil AqriONa 597

for which he is committed; and such district judge shall also hear any
other legal or pertinent evidence that may be •produced by the debtor
or creditor; and such examination must, at the election of the creditor,
be reduced to writing and subscribed and sworn to by the debtor and
other w itnesses.

§ 725. Oath by prisoner.] If, upon such examination, the judge
before whom the same is had, shall be satisfied that the prisoner is
entitled to his discharge, he shall administer to hinji the following
oath, to wit:

I do solemnly swear [or affirm] that I have not any estate, real or personal, to

the amount of ten dollars, excippl such as is by law exempt from levy and sale on execution,
nnd that I have not any other estate, nor have I conveyed, concealed, or in any way disposed of
any of my property, real or personal, with design to secure the same to my use, to hinder, or
delay, or dofrand my creditors. So help me God. [Signed A. B.]

§ 726. Certificate op discharge.] After administering the oath,
the judge must make a certificate under his hand as follows:

To the sheriff of the county . . . : I do hereby certify that confined in your jail

upon an execution at the suil oi , is entitled to be discliarged from imprisonment, if he be

imprisoned from no other cause.

§ 727, Forever exempt.] The jailer, upon receiving such certifi-
cate, must forthwith discharge the prisoner, if he be imprisoned from
no other cause. The prisoner, after being so discharged, shall be for-
ever exempt from arrest or imprisonment for the same debt, unless he
shall have been convicted of having sworn falsely upon his examin-
ation, or in taking the oath herein prescribed.

1 728. Judgment against estate.] The judgment against any
prisoner who is discharged as herein provided for shall remain in full
force against the estate which may then, or at any time after, belong
to him. And the plaintiflf may take out a new execution against the
^oods and estate of the debtor, in like manner and with like eflfect as
if he had never been committed in execution.

§ 729. Prison costs.] If the debtor nhall undertake to satisfy the
execution he shall not be entitled to his discharge from imprisonment
until he has paid all the charges for his commitment, and support in
prison, in addition to the sum due on the execution, and the costs and
charges thereon.

, § 730. Discharge by plaintiff. | The prisoner may at any time be
discharged upon the order of the plaintiff in the action, and when so
discharged such debtor shall not thereafter be liable to imprisonment
again for the same cause of action.

§ 731. Expenses advanced.] Whenever a debtor is committed to
jail on execution in a civil action, the creditor, or some one in his
behalf, must advance to the sheriff or jailer sufficient money to pav
for the support of such prisoner from time to time; and in case sucn
creditor shall neglect or refuse to so advance the money for such
prisoners support, upon the sheriff's or jailers demand, the jailer must,
at th^ expiration of twenty-four hours after such demand, discharge
euch prisoner froin custody, and such discharge shall have the same
effect as a discharge by order of the creditor.

§ 732. Recommitment.] If upon the examination the prisoner shall
not be discharged he must be recommitted to jail under the exeputioru,
an.d shall not be again entitled to apply for his discharge from

598 Civil Actions. Code of Civil Procedure^

imprisonment, as herein ^provided, except upon the ground of newly-
discovered evidence, or for other good cause shown to the district
judge granting the application.

§ 73B. Appeals.] Either party may api)eal to the siipreme court
from the order of the disti'ict judge, panting or refusing a discharge
from imprisonment, under these provisions, in the same manner as
from an order granting, refusing, continuing, or ;nodifying, a pro-
visional remedy.

CHAPTER XXXVI.

CHANGE OF NAMES OP PERSONS AND PLACES.

§ 734. District court power.] The district court shall have the
authority to change the names of persons, towns, villages, and cities
within this teiritory.

§ 735. Petition — contents.] Any person desiring to change his or
her name, may file a petition in the district court of the county or
subdivision in which such person may be a resident, setting forth:

1. That the petitioner has been a bona fide citizen of such county or
subdivision for at least six months prior to the filing of the petition.

2. The cause for which the change of the petitioner's name is sought,

3. The name asked for.

And it shall be the duty of the jud^e of the district court, at any
term thereof after the filing of such petition, upon being duly satisfied
by proof in open court, of the truth of the allegations set forth in the
petition, and that there exists proper and reasonable cause for chang-
ing the name of the petitioner, and that thirty days previous notice of
the intended application has been given in some newspaper printed in
such district, to order and direct a change of the name of such peti-
tioner, and to direct that such order be entered by the clerk in the
journal of the court.

§ 736. Town, village, or city.] Whenever it may be desirable to-
change the name of any town, village, or city, in any county of the ter-
ritory, a petition for that purpose may in like manner be filed in the
district court of the county or subdivision in which such town, village,
or city is situated, setting forth the cause why such change of name is
desirable, and the name asked to be substituted ; and the court being
satisfied by proof that the prayer of the petitioners is just, proper and
reasonable, and that notice, as in case of the change of names of per-
sonsj provided for in. the preceding section, has been given, and that
two-thirds of the legal voters of such town, village or city, desire such
change of name, and that there is no other town, village or city, in the
territory of the name asked for, may order and direct such change of
name, and direct the clerk to enter such order upon the journal of the
court.

§ 737. Costs — limitation.] All proceedings under this chapter shall
be at the cost of the petitioner or petitioners, and judgment niay be
entered against him or them for costs, as in other civil actions; Jrro-
vided always, That any change of name under the provisions of this

Code of Civil Procedure. Civil Actions. -^ 599

chapter shall in no manner affect or alter any action or legal proceed-
ings then pending, or any right, title, or interest, whatsoever.

CHAPTER XXXVII.

OP BASTARDS.

§ 788. Complaint.] When any woman residing in any county in
this territory is delivered of a bastard child, or is pregnant with a
child which, if bom alive, wrill be a bastard, a sworn complaint may
be made in writmg by any person to the district court of the county
or judicial subdivision where she resides, stating that &ct, and charg-
ing the proper person witii being the father thereof. The proceedings
shall be entitled, in the name of the people of the territory against the
accused as defendant.

§ 739. Summons.] Upon the tiling of the complaint the clerk shall
issue a summons against the person so charged, which shall be served
as in civil actions.

§ 740. LiBN UPON REALTY.] From the time of the filing of such
complaint a lien shall be created upon the real property of the accused
in the county or judicial subdivision where the action is pending, for
the payment of any money and the performance of any order adjudged
by the proper court.

§ 741. ATTAOHMBNT.} The judge of the district court may order an
attachment to issue on such complaint without undertaWng, which
order shall specify the amount in value of property to be seized under
the attachment, and may be revoked at any time by such judge, or by
the district court on a showing made for the revocation of the same,
and on sucli terms as may be deemed proper in the premises.

I 742. District attorney prosecutes.] The district attorney, on
bein^ notified of the facts justifying a complaint as contemplated in
the first section of this subdivision, or of the filing of such complaint,
shall prosecute the action on behalf of the complainant.

§ 748. Issue — how tried.] The issue on the trial shall be "guilty,"
or **not guilty," and shall be tried as a civil action at law.

§ 744. Judgment.] If the accused be found ffuilty, he shall be
charged with the maintenance of the child in such sum or sums, and
in such manner as the court may direct, and with the costs of the suit;
and tiie clerk may issue execution for any sum ordered to be immedi-
ately paid, and afterwards, from time to time, as it shall be required
and necessary to compel compliance with the order of the court.

§ 745. Modification of same.] The court may at any time, enlarge,
diminish, or vacate any order or judgment rendered in the proceeding
herein contemplated, on either party and notice to the other.

§ 746. County may prosecute.] In case any bastard becomes a
county charge, for the support of which no proceedincrs have been
instituted under the provisions of this subdivision, it shall be the duty
of tiie board of county commissioners to proceed against the father of
such bastardy if known, as herein directed.

600 ^, HsKD Law. Code of Civil Procedure.

' .CHAPTER XXXVIII. ,

^ll^.V^'^-V^V HERD LAW.

§ 747. Liability for trespass of animals.] Any person owning, or
having in his or their charge, or possession, any horses, mules, cattle,
goats, sheep, or swine, or any such animals, which shall trespass upon
any cultivated land, cultivated or uncultivated meadow lands, or
young timber, either fenced in or not fenced, belonging to any person
or persons other than the owners of such animals, such person or
persons owning or having in charge or* possession such trespassing
animal or animals, shall be liable to any party or parties sustaining
such injury for all damages he, she, or they may have sustained by
reason of such trespassing aforesaid, to be recovered in civil action,
before any court having jurisdiction thereoi^ in the county where such
damage may have occurred, and the proceedings shall be the same in
all respects as in other civil actions, except as herein modified; Pro-
videdj That no property shall be exempli except those exemptions
made absolute, from seizure and sale under executions issued upon
judgments obtained under or by virtue of this chapter.

§ 748. Owner defined.] Any person occupying or cultivating
lands shall be considered the owner thereof in any action under the
provisions of the last section.

§ 749. Notice of damages.] The parties sustaining damage done
by animals as mentioned in section 747, before commencing an action
thereon, shall notify the owner or person having in charge such offend-
ing animal or animals, of such damage, the probable amount thereof;
Provided, He knows to whom such animal or animals belong.

§ 750. Custody of animals.] The person suffering damage done by
animals, as mentioned in section 747, may retain and keep in custody
such offending animals until the damage and costs are paid, or until
good and sufficient security be given for the same; and whenever any
animal or animals are restrained under this chapter, the person
restraining the same shall forthwith notify the owner or person in
whose custody the same was at the time the trespass was committed,
of the seizure of said animals, providing the owner or person wha had
the same in charge is known to the person making saia seizure.

§ 751. Trial — lien upon animals. J Upon trial oi an action under the
provisions of section 747, of thi^ chapter, the plaintiff' shall prove the
amount of damage sustained, and if he has retained and kept in
custody the animals committing such damage, the amount of expense
incurred for keeping the offending animals, and any judgment renaered
for damages, costs and expenses against the defendant shall be a liien
upon the animals committing the damage, and they may be sold, and
the proceeds applied to the satisfaction of the judgment, as nn other
cases of sale of personal property on execution; but if it shall appear
upon the trial that no damage was sustained, judgment shall be ren-
dered against the plaintiff for cost of suit^ and damage sustained by
defendant.

§ 752. Unknown owner — sbevioe*] If upon trial it appears that
the defendant is not the owner or person in charge of such offending

Code of Ciml Procedure. Mill Dams. 601

animals he shall be discharged and the action and the suit may proceed
as against a defendant whose name is unknown; and if at the com-
mencement of the action, the plaintiflF does not know the name of
the owner, or keeper of such offending animals, he may bring suit
against a defendant unknown. In such case service shall be made by
publishing a copy of the summons with a notice, stating the nature of
the action, in a weekly newspaper, if there be one published in the
county; and if not, by posting copies of the summons and notice in
three of the most public places within the county, in either case not
loss than ten days previous to the day of trial.

§ 758. OvBRPLus.] After judgment shall have been rendered
against the deiTendant, unknown as aforesaid, the offending animals
shall be sold, as in #ther civil actions; and after the said judgment and
costs have been satisfied, if there is a surplus of money, it shall be
placed in the hands of the county treasurer, and if the defendant does,
not appear and C9,ll for the same, within sii months from the day of
sale, it shall be paid into the school fund for the use of the public
schools of said county.

§ 754. Justice's jurisdiction.] Justices of the peace shall have
concurrent jurisdiction with the district court of all actions and pro-
ceedings under this chapter, when the damages claimed do not exceed
one hundred dollars.

Approved, February 17, 1877.

CHAPTER XXXIX.

• MILL DAMS AND MILLS. Olic.9 *" ^> "^"^^
AN ACT to Encourage the erection of Mill Dams and Mills. [Chapter LI. laws of 1862^.]

§ 1. Right stated.] Be it enacted- by the Legislative Assembly of the
Territorjf of Dakota: When any i)er8on may be desirous of erecting
and maintaining a mill dam upon his own land, across any water
course not navigable, and shall deem it nepessary to raise the water
by means of such dam, or occupy ground for mill yard, so as to
damage, by overflowing or otherwise, real estate not owned by him,
nor damaged by consent, he may obtain the right to erect and main-
tain said dam, by proceeding as in this act provided.

§ 2. Petition— CONTENTS J He shall present to the judge of any
court of record in which jury trials are had in the county^ or, if there
be no such court in the county, then in the district in which said dam
or any part thereof is to be located, a petition setting forth the place,
as near as may be, where said dam is to be located, the height to
which it will be raised, the purposes to which the water power will be
applied, and such other facts as may be necessary to show the objects
of the petition.

§ 3. Commissioners appointed.] Upon the presentation of such
petition, the judge shall appoint three disinterested residents of the
county, in which said dam or a parjb of it is to be erected, commis-
sioners to meet at the place of its proposed erection, on a day specified
by such judae, and to inquire touching the matters contained in ;^aid
petition, ana the judge snail fix the fees of said commissioners.

602 Mill Dams. Code of Civil Procedure:

§ 4. Oath.] Before entering upon their duties, the commissioners
shall severally take and subscribe an oath before some person quali-
fied to administer oaths, faithfully and impartially to discharge the
duties of their appointment.

§ 5. Notice of mbbtino.] At the request of the petitioner, the
commissioners shall give, or cause to be given, notice of the time,
place, and object of their meeting to every person named by said
petitioner.

§ 6. Time and manner of notice.] At least five days notice shall
be given in all cases, and in cases of infants, such notice shall be
served on their guardians, or on persons with whom they reside: in
case of idiots, lunatics, or distracted persons, on their guardians, if
they have any, and if not, then on the person unier whose care or
charge they may be found; in cases of femmes-covert on the husband
as well as the femme-covert; but notic^es to non-residents of the
county or counties where said dam or part of it is to. be located, shall
be published in some newspaper in the county aforesaid, or the one
nearest thereto, for three weeks in succession, previous to the meeting
of said commissioners.

§ 7. Examination and assessment.] The commissioners shall meet
at the time and place specified in the notice, and shall proceed to
examine the point at which said dam is proposed to be erected, and
the lands and real estate above and below, which will probably be
injured by the erection of said dam; shall hear the allegations and testi-
mony of all parties interested, and shall proceed to make a separate
assessment of damages which will result to any person by the erection
of said mill dam and its maintenance forever.

§ 8. Report.] Within thirty days after completing their examina-
tion, the commissioners shall file the petition, their appointment^
jurats (oaths), and a report of their proceedings, in the office of the
clerk of the court in the first section of this act mentioned, and shall
give notice of the filing of said report as of their meeting. .

§ 9. Damages— HOW paid.] Upon the filing of said report the peti-
tioners may make payment of the damages assessed to the pd^rties
entitled to the same in the manner following, to wit:

1 . To parties laboring under no disability.

2. To guardians of infants, husbands or trustees of femmes-covert.

3. To guardians or conservators of insane persons.

And receipts for such payment, filed in the office of the clerk afore-
said, shall stop the parties receipting from all further claim or proceed-
ing in the premises. Payments to parties residing in the territory,
but not in the county or counties where said dam or part of it is to
be erected, as well as to the infants who have no guardian, and insane
persons who have no guardians or conservators, and payments to
parties residing out of the territory, aird to persons whose names are
unknown, and to persons who shall refuse to receive the payments
when tendered, snail be made by depositing the money with the
treasurer of the county or counties aforesaid, who shall pay cpt the
same upon the order of the commissioners or court, take receipts for
all payments, and file the same with the order, in the office of the
clerk of the court aforesaid, alid such deposit shall have the same

Code of Civil Procedure. Mill Dams. 60B

eflFect as the first mentioned receipts unless an appeal be taken by the
party entitled thereto.

§ 10. Appeals, by whom.] Appeals from the assessments made by
the. commissioners may be taken and prosecuted in the court afore-
said, by any party interested (the petitioner excepted) not under
lega'l disabifity, by husbands or trustees of femmes-^vert, gaardiane
of infants, guardians or trustees of insane persons; and in cases where
infants or insane persons have no guardians or conservators, appeals
may be taken by the friend of sucii parties, and a written notice of
such appeal be served upon the appellee, as a summons in ordinary
civil actions; Pravided, That no appeal shall be taken after the
expiration of thirty days from the time of the notification of the filing
of the report aforesaid.

§ 11. 60ND BY PETITIONER.] The ercctioii of said dam shall not be
hindered, delayed, or prevented, by the prosecution of any appeal;
Provided^ The petitioner shall execute and file with the clerk of the
court in which the appeal is pending, a bond, to be approved by said
clerk, with surety or sureties, conditioned that the person executing
the same shall pay whatever amount is required by the judgment of
the court, and abide any rule or order of the couit in relation to the
matter in controversy.

§ 12, Bond by appellant.) The appellant shall file with the clerk
aforesaid, a bond with security, to be approved by said clerk, in double-
the amount of the assessment appealed from, payable to the people of
the territory, for the use of all pei*sons interested, in the condition in
which bond the proceeding appealed from shall be recited, with con-
dition for the due and speedy prosecution of the appeal, and that he
or they will satisfy the judgment that may be rendered in the premises
and pay the costs of the appeal, if adjudged to do so by the court in
reference to the matter in controversy.

§ 13. Trial of appeal.] Appeal shall bring before the court the
propriety of the amount of damages reported by the commissioners in
respect to the parties to the appeal, and unless the parties otherwise
agree, the matter shall be submitted to and tried by a jury as other
appeal cases, and the court or jury, as the case may be, shall assess the-
damages aforesaid, making the verdict conform to the question and
facts m the case.

§ 14. Actual damage only.] No exemplary or vindictive damages:
shall be allowed by the commissioners, court, or jury.

§ 15. Judgment.] Upon verdicts rendered by juries, or an assess-
ment by the court, judgment shall be entered, declaring that upon
payment of the damages assessed by the court or jury, as the case
may be, and costs, if any, the right to erect and maintain the mill
dam aforesaid, according to the petition, shall, as against the parties
interested' in such verdict, be and remain in the petitioner, his heirs
and assigns forever, subject to be lost as hereinafter provided, and pay-
ments of such judgments made as payments of assessments, by the
commissioners, as hereinbefore provided.

§ 16, Other improved powers,] No mill dam shall be erected or
maintained under the provisions of this act to the injury of any water
power previously improved.

604 Mill Dams. Code of Civil Procedure.

§ 17. Limitation of actions.] No action for damaees, occasioned
by the erection and maintenance of a mill dam, shall be hereafter
sustained unless such action be brought within two years after the
■erection of said dam; Provided, That such limitation shall not run
against or apply to persons living on and holding government land
under the pre-emption laws, until a patent for the land damaged or
overflown shall have been issued.

§ 18. Dams previously b^uilt.] Any person may obtain a right to
maintain or raise a dam heretofore erected upon his own land, across
any water-course not navigable, by complying with the provisions of
this act, adapting his petition to the nature of the case.

§ 19. Proceedings suspend suits.] Upon the evidence of the com-
mencement of proceedings, as provided in the second and eighteenth
sections of this act, the court, before which any suit for damages
occasioned by such mill dam shall be instituted after the commence-
ment aforesaid, shall have power to suspend any such suit until the'
result of such proceedings snail be known.

§ 20. Petitioner pays costs.] The costs of all proceedings under
this act, except such as arise or grow out of appeals, shall be paid by
the petitioner, and costs of appeal shall be paid as the court may
•direct.

§ 21. Entry authorized.] For the purpose of making surveys and
examinations relating to any proceedings under the provisions of this
act, it shall be lawful to enter upon any land, doing no unnecessary
injury.

§ 22. Loss OF right.] Any person having obtained right to erect
and maintain, or to maintain or raise any dam, under the provisions
of this chapter, who shall not . within one year thereafter begin to
build, if he lias not previously built said dam, and finish the same, and
apply the water power thereby created to the purposes stated in his
petition, within three years; or in case the said dam and mills con-
nected therewith shall be destroyed, shall not begin to rebuild in one
year after such destruction, and finish in three years; or having erected
^uch mills shall fail to keep them in operation for one year at any one
time, shall forfeit all rights acquired by virtue of the provisions oi this
act, unless at the time of such destruction the owner be an infant, or
otherwise disabled in law, in which casie the same time shaJl be
allowed after the removal of such disability.

§ 23. Effect.] This act shall take effect and be in force from and
Sifter its passage and approval by the governor.

Approved, January 7, 1863.

I
\

PKOBATE CODE.

SPECIAL PROCEEDINGS OF A CIVIL NATURE.

TITLE 1-

PROCEEDINGS IN PROBATE COURTS.

CHAPTER I.

JURISDICTION.

§ 1. " Jurisdiction and powbrs.] Be it enacted by the Legislative^
Assembly of the Territory of Dakota, That the probate 'coirrt has juris-
diction, and the jadge thereof power, which must b^ exercised in the
cases, and in the mannet prescribed by statute:

1. To open and receive proof of last wills and testaments, and to
admit' them to proof, and to revoke the probate thereof, and to
allow and record foreign wills.

2. To ffrant letters testamentary, of administration and of guay dian-
ship, and to revoke the sariie.

8. To appoiht appraisei-s of estates of deceased persons.

4. To compel executors, administrators, and guardians to render
^fcccounts;

5. To orfer the sale' of property of estates, or belonging to minors.

6. To order the payment of debts due from estates.

7. To order and regulate all distributions of property or estates of
deceased persons.

8. To compel the attendance of witnesses attd tb* production of titio
deeds, papers and other property of an estate, or of a minor.

9. To exercise all the powers conferred by this chapter or by other
law. ' '

10. To make such orders as may be necessary to the exercise of the
powers conferred Upon it. .

II.'Td appoint' and remove guardians for infants, and for persona
insane or otnerwise incompetent; to compel payment and delivery by

1

606 Jurisdiction. ProbcUe Code,

them of money or property belonging to their wards ; to control their
conduct and settle their accounts.

§ 2. Construction and effect of proceedings.] The proceedings of
this court are construed in the same manner, and with like intend-
ments, as the proceedings of courts of general jurisdiction, and to its
records, orders, judgments and decrees, there are accorded like force,
«flFect, and legal presumptions as to the records, orders, judgments and
decrees of district courts.

§ 3. Service of process.] All process issued by the probate court
shall be served in the same manner, and by the persons and officers, as
provided for the service of process of the district court, with the same
fees.

§ 4. When judge disqualified.] When the judge of the probate
court is a party to any proceeding therein, or connected by blood or
affinity to any person so interested nearer than the fourth degree, or is
personally interested in the conduct or event of anv probate matter or
proceeding, or when he is named as a legatee or devisee, or executor,
•or trustee in a will, or is a witness thereto, he shall be disqualified to
act therein, and it shall be disposed of as follows:

1. He shall call the county clerk, who shall in such cases be sub-
.stituted for and have power to act in place of the judge of the probate
court; and such acts of the county clerk, while acting as judge of the
probate court, shall be binding upon all parties interested therein, and
the record shall set forth the occasion of his substitution, and show by
his official signature the proceedings had, and the acts done by and
before him.

2. Whenever in such cases the probate of any will, the appointment
of any executor, administrator, or guardian, or any other probate act,
is resisted, and any issue of law or fact is joined, tiiie saia issue, and
all the papers and records relating thereto, shall be sent to the district
^ourt for the county or judicial subdivision which shall have fuU luris-
•diction of the same, and it shall be tried and determined, and the
necessary judgment and order made by that court, and all the pro-
ceedings had and the judgments and orders made therein shall be
entered by the clerk of said court in the record of the probate court,
and returned, together with all the papers, to the probate court; and
the clerk of the district court is entitled to charge and receive the
same fees as for like services in the district court, and the county
clerk the same fees as the judge of the probate court in like esses.

§ 5. Jurisdiction resumed.] Under the substitution or transfer of
jurisdiction provided in the last section, the law and the rights of
parties shall in all other respects be and remain the same; and i^ before
the issues so transferred are decided, or the administration of such
estate is closed, another person be elected or appointed and qualified
as judge of the probate court, who is not disqualified to act in tne settle-
ment of the estate, he must resume full jurisdiction of the case,
and upon notice to that effect from the judge of the probate court, the
clerk of the district court must return all papers and records to the
probate court.

§ 6. Judge's powers.] A judge of the probate court, as contra-dis-
tinguished from the probate court, may exercise out of court all the
powers expressly conferred upon him as a judge.

Probate Code. Probate op Wills. 607

§ 7. Venue of probate acts,] Wills must be proved, and letters
testamentary or of administration granted:

1. In the county of which the decedent was a resident at the time of
his death, in whatever place he may have died.

2. In the county in which the decedent may have died, leaving estate
therein^ he not being a resident of the territory.

3. In the county in which any part of the estate may be, the decedent
having died out of the territory, and not resident thereof at the time
of his death.

4. In the county in which any part of the estate may be, the dece-
dent not being a resident of the territory, but dying vrtthin it, and not
leaving estate in the county in which he died.

5. In all other cases, in the county where application for letters is
first made.

§ 8. In either county.] When the estate of the decedent is in more
than one county, he having died out of the territory, and not having
been a resident thereof at the time of his death, or being such non-
resident and dvinff within the tenitory, and not leaving estate m the
county where he died, the probate court of that county in which appli-
cation is first made for letters testamentary or of administration, nas
exclusive jurisdiction of the settlement of the estate.

§ 9. Territorial exclusive jurisdiction. ] The probate.court of the
county in which application is first made for letters te««tamentary or of
administration in any of the ca^es above mentioned, shall have juris-
diction co-extensive with the territory in the settlement of the estate
of the decedent and the sale and distribution of his real estate, and
excludes the jurisdiction of the probate court of every other county.

CHAPTER II.

PROBATE OF WILLS.

Article I. — Petition, Notice, and Proof.

§ 10. Custodian must deliver. -Every custodian of a will, within
thirty days after receipt of infonnation that the maker therieof is d^ad,
must deliver the same to the probate court having jurisdiction of tjie
estate, or to the executor named therein. A failure to comply with the

Provisions of this section makes the person failing responsible for all
amages sustained by any one inj urea thereby.

§ if. Who may petition.] Any executor, devisee or legatee named
in any will, or any other person interested in the estate, may, ajt any
time after the death of the testator, petition the court having juris-
diction to have the will proved, whether the same be in writiojg, in his
possession or not, or is lost or destroyed, or beyond the jurisdiction of
the territory, or a nuncupative will.

§ 12. Requisites of petition.] A petition for the probate of a will
must show : ^

1. The jurisdictional facts.

608 Probate of Wills. Probate Code.

2. Whether the person named as executor consents to act, or
renounces his right to the letters testamentary.

3. The names, ases, and residence of the heirs and devisees of the
decedent so far as Known to the petitioner.

4. The probable value and character of the property of the estate.

5. The name of the person for whom letters testamentary are
prayed.

No defect of form, or in the statement of jurisdictional facts actually
existing, shall make void the probate of a will.

§ 13. Presumed renunciation.] If the person named in a will as
executor, for thirty days after he has knowledge of the death of the
testator, and that he is named as executor, fails to petition the proper
court for the probate of the will, and that letters testamentary be
issued to him, he may be held to have renounced his right to letters,
and the court may appoint any other competent person administrator,
unless good cause for delay is shown.

§ 14. CoiffPULSORY production of will.] If it be alleged in any
petition that any will is in the possession of a third person, and the
court is satisfied that the allegation is correct, an order must be issued
and served upon the person having possession of the will, requiring
him to produce it in the court at the time named in the order. Ifhe has
possession of the will and neglects or refuses to produce it in obedience
to the order, he may, by warrant of the court, be committed to the
jail of the bounty, and kept in close confinement until he produces it.

§ 15. He ARiNG — NOTICE. I When the petition is filed and the will
produced, the judge of the probate court must fix a day for hearing
the petition, not less than ten nor more than thirty days from the
production of the will. Notice of the hearing shall be given by the
judge by publishing the same in a newspaper of the county; if there
is none, then by three written or printed notices posted at three of the
most public places in the county. If the notice be published in a
weekly newspaper, it must appear therein ^n at least three different
days of publication, and if in a newspaper published oftener than
once a week, it shall be so published that there must be at least ten
days from the first to the last day of publication, both the first and
the last days being included. If the notice is by posting, it must be
given at least ten days before the hearing.

% 16. Heirs noticed by mail.] Written or printed copies of the
notice of the time appointed for the probate of the will, must be
addressed to the heirs of the testator resident in the territory, at their
places of residence, if known to the petitioner, and deposited in the
post-office, with the postage thereon prepaid by the petitioner, at
least ten days before the hearing; the notice must be issued by the
judge over the seal of the court. Proof of the' mailing of the notice
must be made at the hearing; the same notice and proof of service
thereof on the person named as eiecutm* must be made if he be not
the ^titioner; al&o on any person natned as W-texecutor, not petition-
ing, if their place of residence be known. " •

§ 17. Powers at chambers.] The judge otf the probate court may.
out 6f tei*m tiihe, or at chambers, receive 'petitions for the probate of
wills, and make and issue all necessary orders and writs to enforce
the production of wills, and the attendaiice of Witnesses,, and may

Probate Code. Probate of Wills. 609

appoint special terms of his court for hearing the petitions, trials of
issues, and admitting wills to probate.

§ 18. Peoof of notice — waivee.] At the time appointed for the
hearing, or at the time to which the hearing may have been postponed,
the court, unless the parties appear, must require proof that the notice
has been given, which being made, the court must hear testimony in
proof of the will. If such notice is not proved to have been given, or
if from any other cause it is necessary, the hearing may be postponed
to a day certain, and notice to absentees given thereof, as onginal
notice is required to be given. The appearance in court of parties
interested is a waiver of notice.

§ 19. Contestants.] Any person interested may appear and con-
test the will.* Devisees, legatees, or heirs of an estate may contest
the will through their guardians, or attorneys appointed by themselves,
or by the court, for that purpose; but a contest made by an attorney
appointed by the court, does not bar a contest, after probate, by the
party so represented, if commenced within one year after such pro-
bate; nor does the non-appointment of an attorney by the court of
itself invalidate the probate of a will.

§ 20. Requisites when'no contest.] If no person appears to contest
the probate of a will, the court may admit it to probate on the testi:
mony of one of the subscribing witnesses only, if he testifies that
the will was executed in all particulars as required by law, and that
the testator was of sound mmd at the time oi its execution.

§ 21. Ologeaphic — HOW PEOVED.] An olographic will may be proved
in the same manner that other private writings are proved.

Aeticle II. Contesting Peobate of Wills.

§ 22. Peoce'edings — issues- -tbial.1 If any one appears to contest
the will, he must file written grounas of opposition to the probate
thereof, and serve a copy on the petitioner and other residents of th6
county interested in the estate, any one or more of whom may demur
thereto upon any of the grounds of demurrer allowed by law in civil
actions. If the demurrer be sustained, the court must allow the con-
testant a reasonable time, not exceeding ten days, within which to
amend his written opposition. If the demurrer is overruled, the
petitioner, and others interested, may jointly or separately answer
the contestant's grounds, traversing or otherwise obviating or avoiding
the objections. Any issues of fact thus raised, involving:

1. The competency of the decedent to make a last will and testa-
ment;

2. The freedom of the decedent at the time of the execution of the
will from duress, menace, fraud, or undue influence;

3. The due execution an^ attestation of the will by the decedent or
subscribing witnesses; or,

4. Any other questions substantially affecting the validity of the
will;

Must be tried and determined by the court. On the trial the con-
testant is plaintiff, and the petitioner is defendant.

|, 23. , Findings and conclusions — eeooed.] The court, after hearing
the caae, must give in writing the findings of fact and conclusions of

30

610 Probate of Wills. Probate Code.

law upon the issues submitted, and upon these the court must render
judgment, either admitting the will to probate or rejecting it. In
either case, the proofs of the subscribing witnesses must be reduced
to writing. If the will be admitted to probate, the judgment, will, and
proofs must be recorded.

§ 24, Witnesses on contest.] If the will is contested, all the sub-
scribing witnesses who are present in the county, and who are of sound
mind, must be produced and examined; and the death, absence, or
insanity of any of them must be satisfactorily shown to the court.
If none of the subscribing witnesses reside in the county, and are not
present at the time appointed for proving the will, the court may
admit the testimony of other witnesses, to prove the sanity of the tes-
tator and the execution of the will ; and, as evidence of the execution,
it may admit proof of the handwriting of the testator and of the
. subscribing witnesses, or any of them.

§ 25, Testimony preserved.] The testimony of each witness,
reduced to writing and signed by him, shall be taken, kept and filed
by the judge, and shall be g-ood evidence in any subsequent contests or
trials concerning the validity of the will, or the sufficiency of the
proof thereof, if the witness be dead, or has permanently removed
from this territory.

§ 20. Certifioate of probate.] f f the court be satisfied upon the
proof taken that the will was duly executed, and that the testator was
at the time of the execution thereof, of sound and disposing mind,
and not acting under duress, menace, fraud, or undue influence, a
certificate of the proof and the facts so found, signed by the judge,
and attested bj^ the seal of the court, must be attached to the will.

§ 27. Record of same.] The will and the certificate of the proof
thereof, together with all the evidence taken, must be filed by the
judge, and recorded by him in a book to be provided, at the charge of
the county, for that purpose.

Article III.- -Probate of Foreign Wills.

*

% 28. Where estate claimed.] Evei-y will duly {proved and allowed
in any other of the territories, or in any of the United States, or the
District of Columbia, or in any foreign country or st^te, may be
allowed and recorded in the probate court of any county in which the
testator shall have left any estate, or any estate for which claim is
made.

§ 29. Petition.] When a copy of the will and the probate thereof,
duly authenticated, shall be produced by the executor, or by any other
person interested in the will, with a petition for letters, the same
must be filed, and the court or judge must appoint a time for the
hearing, notice whereof must be given as provided for an original
petition for the probate of a will.

§ 30. Requisites of proof.] If, on the hearing, it appears upon the
face of the record that the will has been proved, allowed and admitted
to probate in any other of the territories, or any state of the United
States, the District of Columbia, or in any foreign country or state,
and that it was executed according to the law oi the i)Iace in which
the same was made, or in which the testator was at the time domiciled,

Probate Code. Probatb op Wills. 611

-or in conformity with the laws of this territory, it must be admitted
to probate, be certified in like manner according to the facts, and
recorded, and have the same force and effect as a will first admitted
i>o probate in this territory, and letters testamentary or of adminis*
tration issued thereon.

Article IV. — Contesting Will a.fter Probate.

§ 31. Causes —limitations.] When a will has been admitted to
probate, any person interested therein may, at any time within one
year after such probate, contest the same or the validity of the will.
For that purpose he must file in the court in which the will was proved
a aworn petition in writing, containing his allegations, that evidence
discovered since the probate of the will, the material facts of which
must be set forth, show:

1. That a will of a later date than the one proved by the decedent,
xevoking or changing the former will, has oeen discovered, and is
offered; or,

2. That some jurisdictional fact was wanting in the former pro-
l>ate; or,

3. That the testator was not competent, free from duress, menace,
fraud, or undue influence when the will allowed was made; or,

4. That the former will was nqt duly executed and attested.

§ 32. Citation to whom.] Upon filing the petition, a citation must
•be issued to the executors of the will, or to the administrators^ with
the will annexed, and to all the legatees and devisees mentioned m the
will, and heirs residing in the territory, so far as known to the peti-
tioner, or to their guardians if any of them are minors, or their
personal representatives if any of them are dead, requiring them to
Hppear before the court on some day of a regular term tnerein specified,
to show cause why the probate of the will should not be revoked.

§ 33. Other will — notice.] If another will be offered by the
petition, it must show all that is required in the original case of a
petition for the probate of a will, and like notices must be served in
the same manner, and upon all the parties as required before the
hearing of proof of any will originally; Provided, That such notices
need not be served on any persons upon whom the citation required
in the preceding .section is to be served.

§ 34. Hearing proofs.] At the time appointed for showing cause,
or at any time to which the hearing is postponed, personal service of
the citations having been made upon the persons named therein, and
the required publication, posting and service of the notices having
been made, and all duly proved, the court must proceed to try
the issues joined in the same manner as in an original contest of a
will. If, upon hearing the proofs of the parties, the court shall
decide that the will is, for any of the reasons alleged, invalid, or that
it is not proved to be the last will of the testator, tne probate must be
annulled and revoked; and if the court shall decide tnat the new will
is valid, it may admit the same to probate^ in the same manner as
originally upon the probate of a contested will.

§ 36. Effect of revocation.] Upon the revocation being made,
the powers of the executor or administrator with the will annexed,

*

\

v

612 Probate of Wills. Probate Code^

must cease; but such executor or administrator shall not be liable for
any act done in good faith previous to the revocation.

§ 36. Costs.] The fees and expenses must be paid by the party
contesting the validity or probate of the will, if the will in probate be
confirmed. If the probate be annulled and revoked, the costs must be
paid by the party who resisted the revocation, or out of the property
of the decedent, as the court directs.

§ 37. Probate when conclusive.] If no peraon within one year
after the probate of a will, contests the same or the validity thereof,
the probate of the will is conclusive, saving to infants and persons of
unsound mind, a like period of one year after their respective
disabilities are removed.

Article V. -Probate of Lost or Destroyed Will.

§ 88, Proceedings.] Whenever any will is lost or destroyed, the^
probate court must take proof of the execution and validity thereof
and establish the' same, notice to all persons interested being first
given, as prescribed in regard to proofs of wills in other cases. All the^
testimony given must be reduced to writing, signed by the witnesvses,
filed and preserved.

§ 39. Special requisites.] No will shall be proved as a lost or
destroyed will, unless the same is proved to have been in existence at
the time of the death of the testator, or is shown to have been fraud-^
ulently destroyed in the lifetime of the testator, nor unless its
provisions are clearly and distinctly proved by at least two credible
witnesses.

§ 40. Statement of will.] When a lost will is established, the
provisions thereof must be distinctly stated and certified by the judge
of the probate coui-t, under his hand and the seal of the court, and the
certificate must be tiled and recorded as other wills are filed and
recorded, and letters testamentary or of administration with the will
annexed, must be issued thereon in the same manner as upon wills
produced and duly proved; the testimony must be reduced to writings
signed, certified, and filed as in other cases, and shall have the same
effect as evidence as provided in article II of chapter II.

§ 41. Restraint of other acts.] If, before or during the pendency
of an application to prove a lost or destroyed will, letters of adminis-
tration are grranted' on the estate of the testator, or letters testamentary
of any previous will of the testator are granted, the court may restrain
the administrators or executors, so appointed, from any acts or
proceedings which would be injurious to the legatees or devisees
claiming under the lost or destroyed will.

Article VI. -Probate of Nuncupative Wills,

§ 42. Special additional facts.] Nuncupative wills may at any
time, within Six months after the testamentary words are spoken by
the decedent, be adniitted to probate on petition and notice as pro-
vided for the probate of wills executed in writing. The petition, in
addition' tp the ^H^dictional fiicts, must alleee that the testamentary
words, or the substance thereof, wer^ reduced tO' writing within thirty

I

Probate Code. Executors. 613

<lay8 after they were spoken, which writing must accompany the
petition.

§ 43. Limitation of timb and fact.] The probate court must not
receive or entertain a ^petition for the probate of a nuncupative will,
until the lapse of fourteen days from the death of the testator, nor
must such petition be at any tune acted on, unless the testamentary
words are, or their substance is, reduced to writing and filed with the
I)etition, nor until the surviving husband or wife, ii any, and all other
pei-sons resident in the territory or county, interested in the estate, are
notified, as provided in article I of chapter II.

§ 44. Double time foe revocation.] Contests of the probate of
nuncupative wills, and appointments of executors and administrators
of the estate devised thereby, must be had, conductjed and made as
hereinbefore provided in cases of the probate of written wills: Pro-
vided^ That double the period allowed for the petition of revocation of
the probatiC of a written will, shall be allowed in which to petition for
the revocation and annulling of a nuncupative will.

CHAPTER 111.

EXECUTORS AND ADMINISTRATORS, THEIR LETTERS, BONDS, REMOVALS, AND

SUSPENSIONS.

Article I. Letters Testamentary, and of Administration with the

Will Annexed, how and to Whom Issued.

§ 45. Executors by the will.] The court admitting the will to
probate after the same is proved and allowed, must issue letters thereon
to the persons named therein as executors, who are competent to dis-
charge the trust, who must appear and qualify, unless objection be
made as provided in the second section following.

§ 46. Incompetency defined.] No person is competent to serve as
executor who, at the time the will is admitted to probate, is:

1. Under the age of majority.

2. Convicted of an infamous crime.

3. Adjudged by the court incompetent to execute the duties of the
trust, by reason of drunkenness, improvidence, or want of understand-
inc or integrity.

if the sole executor or all the executors are incompetent^ or renounce
or fail to apply for letters, or to appear and Qualify, letters of admin-
istration with the will annexed must be issued.

§ 47. Objections to executors.] Any person interested in a will
may file objections in writing, to granting letters testamentary to the

Eersons named as executors, or any of them; and the objections must
e heard and determined by the court. A petition may, at the same
time, be filed for letters of administration, with the will annexed.

§ 48. Woman's marriage annuls.] When an unmamed woman,
appointed executrix, marries, her authority is extinguished. When a
married woman is named as executrix, she may be appointed and
serve in every respect as a femme-sole.

614 Executors. Probate Code^

m

§ 49. Executor's death.] No executor of an executor shall, as
such, be authorized to administer on the estate of the first testator,
but on the death of the sole or surviving executor of any last will,
letters of administration with the will annexed, of the estate of the
first testator, left unadministered, must be issued.

§ 50. Disqualification removed.] Where a person absent from the
territory, or a minor, is named executor, and there is another' executor
who accepts the trust and qualifies, the latter may have letters testa-
mentary and administer the estate until the return of the absentee, or
the majority of the minor, who may then be admitted as joint execu-
tor. If there is no other executor, letters of administration with the
will annexed, must be granted; but the court may, in its discretion,
revoke them on the return of the absent executor, or the arrival of the
minor at the age of majority.

§ 51. Appointment or act op part.] When all the executors
named are not appointed by the court, those appointed have the sd^me
authority to perforni all acts and discharge the trust, required by the
will, as effectually for every purpose as if all were appointed and
should act together; when there are two executors or administrators,
the act of one alone shall be effectual, if the other is absent from the
teiTitory, or laboring under any legal disability from serving, or if he
has ffiven his co-executor or co-administrator authority in writtin^, to
act lor both; and when there are more than two executors or adminis-
trators, the act of a majority of them is valid.

§ 52. Administrators same power.] Administrators with the will
annexed have the same authority over the est^^tes which executors
named in the will would have, and their acts are as effectual for all
purposes. Their letters must be signed by the judge of the probate
court, and bear the seal thereof.

Article II. — Form of Letters.

§ 53. Testamentary.] Letters testamentary must be substantially
in the following form:

Territory of Dakota, {
CJouKTY of S

The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and

recorded in the probate court of the county of , C, D., who is naine<l therein, is hereby

appointed executor.

Witness, G. H., judge of the probate court of the county of , with the seal of the

•ourt affixed, the day of , A. D., 18..

[Seal, and the official signature of the judgej

§ 54. Of administration with will.] Letters of administration
with the will annexed must be substantially in the following form:

Territory of Dakota, }
Co^JNTY of i"

The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and

recorded in the probate court of the county of , and there being no executor named in

the will [or, as the case may be], C. D., is hereby appointed administrator, with the will
annexed.

Witness, G. H., judge of the probate court of the county of , with the seal of the court

affixed, the day of , A. D., 18..

[Seal, and the official signature of the Judge.]

Probate Code. Administbatobs. ' 615

§ 55* Op administration.] Letters of administration must be
signed by the judge, under the seal of the court, and substantially in
I the following form:

I Tbbbitobt op Dakota, } '
i COUKTYOF... i

C. D., is hereby appointed administrator of the estate of A. B., deceased.

Witiiess, G. H., jimge of the probate court of the county of , with the seal thereof

aflBixed, the day of , A. D., 18. .

[Seal, and official signature of the judge.]

Article IIL — Letters of Administeation — to Whom and the Order

IN which thbt are Granted.

§ 56. Who entitled — order.] Administration of the estate of a
person dying intestate must be granted to some one or more of the
persons hereinafter mentioned, and they are respectively entitled
thereto in the following order:

1. The surviving husband or wife, or some competent person whom
he or, she may request to have appointed.

2. The children.

3. The father or mother.
4. . The brothers.

5. The sisters.

6. The grandchildren.

7. The next of kin entitled to share in the distribution of the
estate.

S. Thef'creditors.

9. Any person legally competent.

If the d!ecedent was a member of a partnership at the time of his
decease, the surviving partner must in no case be appointed adminis-
trator of his estate.

§ 57. Peefkrences required.] Of several persons claiming and
equally entitled to administer, males must be preferred to females,
and relatives of the whole blooa to those of the half blood.

§ 58. Equally entitled.] When there are several persons equally
entitled to the administration, the court may grant letters to one or
more of them; and when a creditor is claiming letters, the court may,
in its discretion, at the request of another creditor, grant letters to
any other person legally competent.

§ 59. To GUARDIAN OP MINOR.] If any person entitled to adminis-
tration is a minor, letters must be granted to his or her guardian, or
any other person entitled to letters of administration, in the discretion
of the court.

§ 60. Incompetency defined.] No person is competent to serve as
administrator or administratrix, who, when appointed, is:

1. Under the age of majority.

2. CJonvicted of an infamous crime.

3. Adjudged by the court incompetent to execute the duties of the
trust by reason of drunlienness, improvidence, or want of understand-
ing or integrity.

8 61. Women.] A married woman must not be appointed adminis-
tratinx. When an unmarried woman, appointed administratrix,
mapries, her authority is extinguished.

■

els' Administratoes. Probate Code.

Article ' IV. — Petition and Contest for Letters, and Action

THEREON.

§ 62. Requisites of petition.] Petition for letters of administra*
tion must be in writing, signed by the applicant or his counsel, and
filed with the judge of the court stating tne facts essential to give the
court jurisdiction of the case, and when known to the applicant, he
must state t^e names, ages, and residence of the heirs of the decedent,
and the value and character of the property. If the jurisdictional
facts existed, but are not fully set forth in the petition, and are stfter-
wards proved in the course of administration, the decree or order of
administration and subsequent proceedings are not void on account of
such want of jurisdictional averments.

§ 63. When granted.] Letters of administration may be granted
at a regular term of the court or at a special term appointed by the
judge tor the hearing of the application.

§ 64. Notice of hearing.] When a petition praying for letters of
administration is filed, the judge must give notice thereof containinff
the name of the decedent, the name of the applicant for letters, ana
the day and term of the court at which the application will be heard,
which notice must be published b v postinff, or printing in a newspaper,
the same as required for notice of the prooate of a will.

§ 65. Who may contest — grounds.] Any person interested may
contest the petition by filing Written opposition thereto on the ground
of the incompetency of the applicant, or may assert Jiis own rigMs
to the administration and pray that letters be issued to himself, in
the latter case the contestant must file a petition and give the notice
required for an original petition, and the court must hear the two
petitions together.

§ 66. Hearing.] On the hearing, it being first proved that notice
has been given as herein required, the court must hear the alle^tions
and proofs of the parties, and order the issuing of letters of aaminis-
tration to the party best entitled thereto.

§ 67. Proof of notice.] An entry in the minutes of the court, that
the required proof was made and notice given, shall be conclusive
evidence of the fact of such notice.

§ 68. Waiver of better right.] Letters of administration must
be granted to any applicant, though it appears that there ^are other
persons having better rights to the administration when such persons
fail to appear and claim the issuing of letters to themselves.

§ 69. Proof of intestacy, property, &c.] Before letters of adminis-
tration are granted on the estate of any person who is represented to
have died intestate, the fact of his dying intestate must be proved by
the testimony of the applicant or others; and the court may also
examine any other person concerning the time, place, and manner of
his death, the place of his residence at the time, the value and charac*
ter of his property, and whether or not the decedent left any will, and
may compel any person to attend as a witness for that purpose.

§ 70. Other appointees — non-residents.] Administration may be
granted to one or more competent persons, although not entitled to
the same, at the written request of the person entitled, filed in the
court. When the person entitled is a non-resident of the terriiiory.

Probate Code. Administrators. 617

affidavits or depositions taken ex-parte before any ofl&cer authorized
by the laws of this territory to take acknowledgments and administer
oaths out of this territory, may be received as prima facie evidence of
the identity of the party, if free from suspicion, and the fact is estab-
lished to the satisfaction of the court.

Article V. Revocation of Letters and Proceedings Therefor.

§ 71. When allowed.] When letters of administration have been
granted to any person other than the surviving husband or wife, child,
father, mother, orother, or sister of the intestate, any one of th€«n
may obtain the revocation of the letters and be entitled to the adminis-
tration, by presenting to the probate court a petition praying the
revocation, and that letters of administration may be issued to him.

§ 72. Additional notice.] When such petition is filed, the judge
must, in addition to the notice, provided upon petition for letters, issue
a citation to the administrator to appear and answer the same at the
time appointed for the hearing.

§ 73. Hearing.] At the time appointed, the citation having been
duly served and returned, the court must proceed to hear the allega-
tions and proofe of the parties; and if the right of the applicant is
established, and he is competent, letters of administration must be
granted to him, and the letters of the former administrator revoked.

§ 74. Prior rights asserted.] The surviving husband or wife, when
letters of administration have been granted to a child, father, mother,
brother, or sister of the intestate, or any of such relatives when let-
ters have been granted to any other of them, may assert his prior
right, and obtam letters of administration, and have the letters before
granted revoked in the manner prescribed in the three preceding
sections.

Article VI. Oaths and Bonds of Executors and Administrators.

§75. Oath —record.] Before letters testamentary or of adminis-
tration are issued to the executor or administrator, he must take and
subscribe an oath, before some officer authorized to administer oaths,
that he will perform, according to law, the duties of executor or
administfator, which oath must be attached to the letters. All letters
testamentary and of administration issued to, and all bonds executed
by executors or administrators, with the aflftdavits and certificates
thereon, must be forthwith recorded by the judge in books to be 'kept
by him in his office for that purpose.

§ 76. Bond — form — penalty.] Every person to whom letters testa*
mentary or of administration are directed to issue, must, before
receiving them, execute a bond to the Territory of Dakota, with two
or more sufficient sureties, to be approved by the judge of the probate
court. In form the bond must be joint and several, and the penalty
must not be less than twice the value of the personal property and
twice the probable value of the annual rents, profits, and issues of the
real property belonging to the estate, which valued must be ascertained
by the probate judge, by examining on oath the party applying, >nd
any other persons.

618 Administeatoibs. Probate GoJe^

§ 77. Additional bond.] The judge must require an additional
bond whenever the sale of any real estate belonging to an estate is
ordered by him; but no such additional bond must be required when it
satisfactorily appears to the court that the penalty of the bond given
before receiving letters, or any bond given m place thereof, is equal ta
twice the value of the personal property remaining in, or that will
come into the possession of the executor or administrator, including the
aniltial rents, profits, and issues of real estate still belonging to the
estate, and twice the probable amount to be realized on the sale of
the real estate orderiBd to be sold.

§ 78. Condition of bond.] The bond must be conditioned that the
executor or administrator, shall faithfully execute the duties of the
trust according to law.

§ 79. Separate bonds.] When two or more persons are appointed
exet5utors or administrators, the judge of the probate court must
require and take a separate bond from each of them.

g 80. SxjccTESSivE recoveries.] The bond shall not be void ui>on
the first recovery, but may be sued and recovered upon from time to
time, by any person aggrieved, in his own name, until the whole
penaJty is exhausted.

§ 81. Justification— APPROVAL- -record.] In all cases where bonds
are required to be given, under this title, the officer taking the same
must require the sureties to accompany it with an afiidavit that they
are each residents and householders or freeholders within the terri-
tory, and are each worth the sum specified in the bond over and above
all their just debts and liabilities, • exclusive of property exempt
from execution; but when the amount specified in the bona exceeaa
one thousand dollars, and there are more than two sureties thereon,
they may'state in their affidavits that they are severally worth amounts
less than that expressed in the bond, if the whole amount be equiva-
lent to that of two suflScient sureties, and the affidavits thereof must
be attached to, and filed and recorded with the bond. All such bonds
must be approved by the judge of the probate court before being filed
and recorded.

Before the judge of the probate court approves any bond required
under this title, and after its approval he may, of his own motion^
or upon the motion" of any person interested in the estate, supported
by affidavit that the sureties or some one or more of them are not
worth as much as they have justified to, issue a citation, requiring-
such sureties to appear before him, at a designated time and place, to
be examined touching their property and its value; and the judge
must at the same time issue a notice to the executor or administrator,
requiring his appearance on the return of the citation; and on its
return he' may examine the sureties and such witnesses as may be
produced, touching the property of the sureties and its value; and if
upon such examination he is satisfied that the bond is insufficient, he
must require sufficient additional security.

§ 82. Examination of sureties.] If sufficient security be not given
within the time fixed by the judge s order, the right of such executor
or stdministrator to the administration shall cease, and the person next
entitled to the administration on the estate, who will execute a
sufficient bond, must be appointed to the administration.

Probate Code. Administbators. 61^

§ 83. Bond waived by will.] When it is expressly provided in the
will that no bond shall be required of the executor, letters testamentary
may issue and sales of real estate be made and confirmed without any
bond, unless the court, for ^ood cause, require one to be executed ; but
the executor may, at any time afterward, if it appears from any cause
necessary or proper, be required to file a bond as m other cases.

§84. Bond BECOMING INSUFFICIENT.] Any person interested in an
estate may, by verified petition, represent to the judge of the 'probate
court that the sureties of the executor or administrator thereof have
become or are becoming insolvent, or that they have removed or are
about to remove from this territory, or that from any other cause the
bond is insufiicient, and ask that further security be required.

§ 85. Service of citation.] If the judge is satisfied that the matter
requires investigation, a citation must be issued to the executor or
administrator, requiring him to appear, at a time and place to be
therein specified, to snow cause why he should not give further
security. The citation must be served pei"s<)na.lly on the executor or
administrator, at least five days before the return day. If he has
absconded or cannot be found, it may be served by leaving a copy of it
at his last place of residence, or by such publication as the judge may
order.

§ 86. Hearing and order.] On the return of the citation, or at
such other time as the judge may appoint, he must proceed to hear the
proofs and allegations of the parties*. If it satisfactorily appeai-s that
the security is, from any cause, insufficient, he may make an order
requiring the executor or administrator to give further security, or to
tile a new bond in the usual form within a. reasonable time, not lesa
than five days.

§ 87. Revocation for disobedience.] If the executor or adminis-
trator neglects to comply with the order within the time prescribed,
the judge must, by order, revoke his letters, and his authority must
thereupon cease.

§ 88. Suspension of powers.] When a petition is presented praying-
that an executor or administrator be required to give further security^
or to give bond where by the tenns of the will no bond was originally
required, and it is alleged on oath, that the executor, or adminis-
trator is wasting the property of the CvState, the judge may, by
order, suspend his powers until the matter can be heard and
determined.

§ 89. Judge must inquire. | When it comes to his knowledge that
the bond of any executor or administrator is, from any cause,
insufficient, the judge of the probate court, without any application,
must cite him to appear and show cause why he should not give
further security, and must proceed thereon as upon the application of
any pefson interested.

8 90. liEiiKASE OF surety.] When a surety of any executor or
administrator desires to be released from responsibility, on account
of future acts, he may make application by petition to the judge of
the probate court for relief. The judge must issue a citation to the
executor or administrator, to be served personally upon him, requiring
him to appear at a time and place to be therein specified, and give
other security. If he has absconded, left, or removed from the

^20 Administbators. Probate Code,

territory, or cannot be found after due diligence and inquiry, service
may be made as provided when the citation is to require further
security.

§ 91. When allowed.] If new sureties be given to the satisfaction
of the judge, he may thereupon make and enter an order that the
sureties who applied for relief shall not be liable on their bond for
any subsequent act, default, or misconduct of the executor or adminis-
trator.

§ 92. Revocation.] If the executor or administrator neglects or
refiises to mve new sureties, to the satisfaction of the judge, on the
return of tne citation, or within such reasonable time as the judge shall
allow, unless the suretj'^ making the application shall consent to a
longer extension of time, the judge must, by order, revoke his letters.

§ 93. Hearings out op term.] The applications authorized by the
nine preceding sections of this chapter, may be heard and determined
out of term time: and all orders made therein must be entered upon
the minutes of the court.

Article VII. Special Administrators. Their Powers and Duties.

§ 94. When may be appointed.] When there is delay in granting
letters testamentary or of administration, from any cause, or when such
letters are granted irregularly, or no sufficient bond is filed as required,
or when no application is made for such letters, or when an adminis-
trator or executor dies, or is suspended or removed, the judge of the
probate court must appoint a special administrator to collect and
take charge of the estate of the decedent, in whatever county or
counties the same may be found, and to exercise such other powers as
may be necessary for the preservation of the estate.

^ 95. ' How APPOINTED.] The appointment may be made out of
term time, and without notice, and must be made by entry upon the
minutes of the court, specifying the powei's to be exercised by the
administrator. Upon such order being entered, and after the person
appointed has given bond, the judge must issue letters of administra-
tion to such person, in conformity with the order in the minutes.

§ 96. Preference.] In making the appointment of a special
administrator, the judge must give preference to the person entitled
to letters testamentary or of administiation, but no appeal must be
allowed from the appointment.

. § 97. Bond.] Before any letters issue to any special administrator,
he must give bond in such sum as the judge may direct, with sureties
to the satisfaction of the judge, conditioned for the faithful perform-
ance of his duties; and he must take the usual oath and have the
i5iame indorsed on his letters.

§ 98. Duties of special administrator.] The special administrator
must collect and preserve for the executor or administrator, all the
.^oods, chattels, debts, and effects of the decedent, all incomes, rents,
issues, and profits, claims and demands, of the estate, must take the
<5harge and management of, enter upon and preserve from damage,
waste and injury, tne real estate, and ror such and all necessary purposes
may commence and maintain, or defend, suits and other legal proceed-
ings, as an administrator; he may sell such perishable property as the

Probate Code. Administrators, 621

probate court may order to be sold, and exercise such other powers as
are conferred upon him by his appointment, but in no case is he liable
to an action by any creditor on a claim against the decedent.

§ 99. SuPEROBDED.] When letters testamentary or of administra-
tion on the estate of the decedent have been granted, the powers of
the special administrator cease, and he must forthwith deliver to the
executor or administrator all the property and effects of the decedent
in his hands; and the executor or administrator may prosecute to final
judgment any suit commenced by the special administrator.

§ 100. Account.] The special administrator must render an account,
on oath, of his proceedings, in like manner as other administrators are
required to do.

Article VIII. Wills Found after Letters of Administration

Granted, and Miscellaneous Provisions.

§ 101. Administration revoked.] If, after granting letters of
administration on the ground of intestacy, a will of the decedent ia
duly proved and allowed by the court, the letters of administration
must be revoked, and the power of the administrator ceases, and he
must render an account of his administration within such time as the*
court shall direct.

§ 102. Succession to duties.] In such case, the executor or the.
administrator with the will annexed, is entitled to demand, sue for,
recover, and collect, all the rights, goods, chattels, debts, and effects
of the decedent remaiiung unadministered, and may prosecute to final
judgment any suit commenced by the administrator before the revoca-
tion of his letters of administration.

§ 103. One remaining completes duty,] In case any one of several
executors or • administrators, to whom letters are granted, dies,
becomes lunatic, is convicted of an infamous crime, or otherwise
becomes incapable of executing the trust, or in case the letters tes-
tamentary or of administration are revoked or annulled, with respect
to any one exe(»utor or administrator, the remaining executor or
administrator must proceed to complete the execution of the will or
administration.

§ 104. Successor appointed.] If all such executors or admin-^
istrators die or become incapable, or the power and authority of all of
them are revoked, the probate court must issue letters of administra-
tion with the will annexed, or otherwise, to the widow, or next of kin,
or others, in the same order and manner as is directed in relation .t<>
original letters of administration. The administrators so appointed
must give bond in the like penalty, with like sureties and conditions,,
as hereinbefore required of administrators, and shall have the like
power and authority.

§ 105. Resignation — liability.] Any executor or administrator
may, at any time, by writinff^ tiled in the probate court, resign .hia
appointment, having first settled his accounts and delivered up all the
estate of the person whom the court shall appoint to receive the same.
If, however, by reason of any delays in such settlement and delivering
up Qf the estate, or for ajay other, cause, the ciucjumstajaoes of tkQ
estate or the rights of those interested therein require it, the cpurt

622 Administrators. Probate Code.

may, at any time before settlement of accounts and delivering up of
the estate is conipleted, revoke the lettei-s of such executor or admin-
istrator, and appoint in his stead an administrator, either special or
general, in the same manner as is directed in relation to original
letters of administration. The liability of the outgoing executor or
^ministrator, or of the sureties on his bond, shall not be in any man-
ner discharged, released, or affected, bj*- such appointment or resig-
nation.

§ 106. Previous acts valid.] All acts of an executor or adminis-
trator, as such, before the revocation of his letters testamentary or of
administration, are as valid to all intents and purposes, as if such
executor or administrator had continued lawfully to execute the
duties of his tnist.

§ 107. Proof of appointment.] A transcript from the minutes of
the court, showing the appointment of any person as executor or
administrator, together with the certificate of the judge under his
hand and the seal of his court, that such person has ^iven bond and
qualified, and that letters testamentary or of administration have
been issued to him and have not been revoked, shall have the same
effect in evidence as the letters themselves.

Article IX. Removals and Suspensions tn Certain Cases.

§ 108. Embezzlement.] Whenever the judge of the probate court
has reason to believe, from his own knowledge or from credible
information, that any executor or administrator has wasted, embezzled
or mismanaged, or is about to waste or embezzle the property of the
estate committed to his charge, or has committed or is about to com-
mit a fraud upon the estate, or is incompetent to act, or is per-
manenth^ removed from the territory, or has wrongfully neglected the
^estate, or has 4ong neglected to perfonn any act as such executor
or administrator, he must, by an order, entered upon the minutes of
the court, suspend the powers of such executor or administrator, until
the matter is investigated.

§109. Suspension — citation.] When such suspension is made,
notice thereof must be given to the executor or administrator, and he
must be cited to appear and show cause why his letters should not be
revoked. If he fail to appear in obedience to the citation, or, if appear-
ing, the court is satisfied there exists cause for his removal, his letters
must be revoked, and letters of administration granted anew as the
casfe may require.

§110. Hearing ISSUES.] At the hearing, any person interested in
the estate may appear and file his allegations m writing, showing
that the executor or administrator should be removed; to which the
executor or administrator may demur or answer, as hereinbefore pro-
vided, and the court must hear and determine the issues raised.

§ 111. Notice by publication.] If the executor or administrator
has absconded or concealed himself, or has removed or absented him-
self from the territory, notice may be given him of the pendency of
the proceedings by publication, m such manner as the court may
direct, and the court may proceed upon such notice as if the citation
had been personally served.

Probate Code. Administrators. 623

•

§ 112. Compulsory attendance.] In the proceedings authorized by
the preceding four sections, for the removal of an executor or adminis-
trator, the court may compel his attendance by attachment, and may
compel him to answer questions, on oath, touching his administration,
and upon his refusal to do so, may commit him until he obey, or may
revoke his letters, or both.

CHAPTER IV.

OF THE INVENTORY AND COLLECTION OP THE EFFECnS OF DECEDENTB.

Article I. Inventory, Appraisement, and Possession of Estate.

§ 113. Inventory of estate.] Every executor or administrator
must make and return to the court, at its first term after his appoint-
ment, a true inventory and appraisement of all the estate of the
decedent, except the homestead, if any, which has come to his posses-
sion or knowledge.

§ 114. Appraiser's duties -fees. J To make the appraisement, the
judge must appoint three disinterested persons, any of whom may act,
who are entitled to receive a reasonable compensation for their ^r-
vices, not to exceed two dollars per day, to be allowed by the court.
The appraisers must, with the inventory, file a verifiea account of
their services and disbursements. If any part of the estate is in any
other count3% the same appraisers may proceed to view and appraise
the same, or other appraisers in that (*.ountymay be api^ointed to per-
form that duty, by the judge of the probate court or the county in
w^hich the letters were issued, as; he may deem best, and the like
report must be made in each case direct to the probate court of the
countv which issued the letters.

§115. Oath- inventory contents.] Before proceeding to the execu-
tion of their duty, the appraisers must take and subscribe an oath, to
be attached to the inventory, that they will truly, honestly and impar-
tially appraise the property exhil)ited to them, according to the oest
of their knowledge and ability. Thej^ nfust then i)roceed to estimate
and appmise the property; each article must be set down separately,
with the value thereof in dollars and cents, in figures, opposite to the
articles respectively; the inventory must contain all the estate of the
decedent real and personal, except the homestead, a statement of all
debts, partnerships and other interests, bonds, mortgages, notes and
other securities for the payment of money belonging to the decedent,
specifying the name of the debtor in ea(*h security, the date, the sum
originally payable, the indorsements thereon, if any, with their dates,
ana the sum which, in the judgment of the appraisers, may be colleetea
on each debt, interest or security.

§ 116. Money received.] The inventory must also contain an
account of all moneys belonging to the decedent, which have come to
the hands of the executor or administrator, and if none, the fact must
be so stated in the inventory. If the whole estate consists of money,
there need not be an appraisement, but an inventory must be made
and returned as in other cases.

624 Administrators. Probate Code,

§ 117. Executor's personal debt.] The naming of a person as
executor, does not thereby discharge him from any just claim which
the testator has against him, but the claim must be included in the
inventory, and the executor is liable for the same, as for so much
money in his hands, when the debt or demand becomes due.

§ 118. Bequest to -construed.] The discharge or bequest in a will
of any debt or demand of the testator against the executor named, or
any other person, is not valid against the creditors of the decedent, but
is a specific bequest of the debt or demand. It must be included in
the inventory, and, if necessary, applied in the payment of the debts.
If not necessary for that purpose, it must be paid in the same manner
and proportion as other specific legacies.

§ 119. Return of inventory.) The inventory must be signed by
the appraisers, and the executoi* or administrator must take and sub-
scribe an oath, before an officer authorized to administer oaths, that
the inventory contains a true statement of all the estate of the dece-
dent which has come to his knowledge and possession, and particularly
of all money belonging to the decedent, and of all pst claims of the
decedent against the affiant. The oath must be indorsed upon or
annexed to the inventory.

§ 120. Refusal- revocation.] If an executor or administrator
neglects or refuses to return the inventory within the time prescribed,
or within such further time, not exceeding two months, which the
judge shall, for a reasonable cause, allow, the court may, upon notice,
revoke the letters testamentary or of administration, and the executor
or administrator is liable on his bond for any injury to the estate, or
any person interested therein, arising from such failure.

§ 121. Additional inventory.] Whenever property not mentioned
in an inventory that is made and filed, comes to the possession or knowl-
edge of an executor or administrator, he must cause the same to be
appraised in the manner prescribed in tli,is article, and an inventory
thereof to be returned within two months after the discovery; and the
making of such inventory may be enforced, after notice, by attachment
or removal from oflSce.

§ 122. Possession by representative. 1 The executor or adminis-
trator is entitled to the possession of all the real and personal estate
of the decedent, and to receive the rents and profitsof the real estate^
except the realty and improvements thereon properly belonging to
the homestead, arid such personal property as is reserved by law to
the widow and children of the decedent, or either of them, until the
estate is settled, or until delivered over by order of the probate court
to the heirs or devisees; and must keep in good tenaiitable repair all
houses, buildings, and fixtures thereon, which are under his controL
The heirs or devisees may themselves, or jointly with the executor o^
administrator, maintain an action for the possession of the real estate,
or for the purpose of quieting title to the same, against any one except
the executor or administrator.

§ 123. Term of possession.] Unless it satisfactorily appeai-s to the
probate court that the rents, issues, and profits of the real estate for
a longer period are necessary to be received by the executor or admin-
istyator wherewith to pay the debts of the decedent, or tljat it will
probably be necessary to sell the real estal^e for the payuient of such

Probate Code, Administrators. 625

-debts, at the end of ten months from the first publication of the notice
to creditors, the court must direct the executor or administrator to
deliver possession of all the real estate to the heirs at law, or devisees.

Article II.— EMBBZzftuMENT and Surrender op Property of the

Estate.

§ 124. Embezzlement before letters.! If any person before the
granting of letters testamentary or of administration, embezzles or
alienates any of the moneys, goods, chattels, or eflFects of a decedent,
he is chargeable therewith, and liable to an action by the executor or
administrator of the estate, for double the value of the property so
embezzled or alienated, to be recovered for the benefit of the estate.

§ 125. Complaint — examination.] If any executor, administrator,
or other person interested in the estate of a decedent, complains to the
probate court, on oath, that any person is suspected to have c^oncealed,
-embezzled, smuggled, conveyed away, or disposed of any moneys, goods,
or chattels of the decedent, or has in his possession or knowledge, any
deeds, conveyances, bonds, contracts, or other writings, which contain
evidences of, or tend to disclose the right, title, interest, or claim of the
decedent to any real or personal estate, or any claim or demand, or any
lost [last] will, the judge may cite such person to appear before the
probate court, and may examine him, on oath, upon the matter of
such complaint, if he can be found in the territory. But if cited from
another county, and he appears and is found innocent, his necessary
expenses must be allowed him out of the estate.

^ 126. Commitment — disclosure.] If the person so cited refuses
to appear and submit to an examination, or to answer such interrog-
atories as may be put to him, touching the matters of the complaint,
the court may, by warrant for that purpose, commit him to the
county jail, there to remain in close custody until he submits to the
order of the CQurt or is discharged according to law. If, upon such
examination, it apj^ears that he has concealed, embezzled, smuggled,
conveyed away, or disposed of any moneys, goods, or chattels of the
decedent, or that he has in his possession or knowledge any deeds con-
vej^ances, bonds, contracts, or other writings, tending to disclose the
right, title, interest, or claim of the decedent to any real or personal
estate, claim, or demand, or any lost will of the decedent, the probate
court may make an order requiring such person to disclose his
knowledge thereof to the executor or administrator, and may commit
him to tne county jail, there to remain until the order is complied
with, or he is discharged according to law; and all such interrogatories
and answers must be in writing, signed by the party examined, and
tiled in the probate court. The order for such disclosure made upon
.such examination, is prima facie evidence of the right of such
administrator to judgment recovered therein, must be for double the
value of the property as assessed by the district court or jury, or for
return of the property, and damages in addition thereto, equal to the
value of such property. In addition to the examination of the party,
witnesses may be produced and examined on either side.

§ 127. Account by third persons.] The probate judge, upon the
complaint, on oath, of any executor or administrator, may cite any

40

626 ABMiNisTRATOBe. ' Pi'obate Code.

Serson who has been entrusted with any part of the estate of the
ecedent, to appear before such court and require him to render a fiill
account, on oath, of any moneys, goods, chattels, bonds, accounts, or
other property or papers belonging to the estate, which have come to
his possession in trust for the executor or administrator, and of pro-
ceedings thereon; and if the person so cited refuses to appear and
render such account, the court may proceed against him as provided
in the preceding section.

CHAPTER V.

OF THE HOMESTEAD, AND OF THE ALLOTMENT OF PERSONAL PROPERTY-

§ 128. Property immediately delivered to family.] Upon the
death of either husband or wife, the survivor may continue to possess
and occupy the whole homestead until it is otherwise disposed of
according to law; and upon the death of both husband and wife the
children may continue to possess and occupy the whole homestead
until the youngest child becomes of age. [See chapter 38 of the
political code, page 162.) And in addition thereto the following per-
sonal property must be immediately delivered by the executor or
administrator to such surviving wife or husband, and child or
children, and is not to be deemed assets, namely:

1. All family pictures.

2. A pew or other sitting in any house of worship.

3. A lot or lots in any burial ground.

4. The family bible and all school books used by the family; and all
other books used as a part of the family library, not exceeding in value
one hundred dollai-s.

5. All wearing apparel and clothing of the decedent and his family.

6. The provisions for the family necessary for one year's supply,
either provided or growing, or both; and fuel necessary for one year.

The executor or administrator must make a separate and distinct
inventory of all the personal property specified in this section, by
articles, and opposite each article give the appraised value of the same,
in dollars and cents, as given in the general inventory of the apprais-
ers appointed by the court, and return the same to the probate court:
and no such property shall be liable for any prior. debts or claims

whatever. 7 t.V.. v t ^ c)- - ^\> % ^

§ 129. Additional allotment.] In addition to the property men-
tioned in the preceding section, there shall also be allowed and set
apart to the surviving wife or husband, or the minor child or children
of the decedent, all such personal property or money as is exempt by
law from levy and sale on execution, or other final process from any
court, to be, with the homestead, possessed and used by them; and the
executor or administrator must make and return a separate and dis-
tinct inventory thereof, in the same manner as required for the prop-
erty mentioned in the preceding section, and no such property shall be
liable for any prior debts or claims against the decedent, except when
there are no assets thereunto available for the payment of the neces-

Probate Code. Administkators. 627

sary expenses of his last illness, funeral charges, and expenses of
administration.

§ 130. Selection of homestead.] If no homestead has been
selected, marked out, platted, and recorded, as provided by the home-^
stead law, the judge of the probate court must cause the same to be'
done according to the provisions of said law.

§ 131. Same exempt.] The homestead is not subject to the pay-
ment of any debt or liability contracted by or existing against the
husband and wife, or either of them, previous to or at the time of the
death of such husband or wife, except as provided in the law relating
to homesteads.

§ 132. Family allowance.] If the amount so as aforesaid set apart
be less than ttiat allowed, and insufficient for the support of the
widow and children, or either, or, if there be no such personal property
to be set apart, and if there be no other estate of the decedent, the
court may, in its discretion, make such reasonable allowance out of
the estate as shall be necessary for the maintenance of the family,
according to their circumstances, during the progress of the settle-
ment of the estate, which in case of an insolvent estate, must not be
longer than one year after granting letters testamentary or of admin-
istration.

§ 133. Same — preferred claim.] Any allowance made by the
court in accordance with the provisions of this chapter must be paid
in preference to all other charges, except funeral charges or expenses
of administration; and any such allowance, whenever made, may, in
the discretion of the court, take eflFect from the death of the decedent.

§ 134. Who receives property.] When personal property is set
apart for the use of the family, in accordance with the provisions of
this chapter, if the decedent left a widow or surviving husband, and no
minor child, such property is the property of the widow or surviving
husband. If the decedent left also a minor child, the one-half of such

Eroperty shall belong to the widow or surviving husband, and the other
alf to the minor child; and if the decedent left more than one minor
child, the one-third of such property shall belong to the widow or
surviving husband and the remainder in equal shares to the minor chil-
dren; and if the decedent left no widow or surviving husband, such
property shall belong to the minor child, or, if more than one minor
child, to them in equal parts.

§ 135. Summary administration.] If, upon the return of the inven-
tory of the personal estate of an intestate, it appears that the value of
the whole personal estate does not exceed the sum of fifteen hundred
dollars, the probate court, by a decree for that purpose, must assign
for the use and support of the widow and minor child or children, if there
be a widow or minor child, and if no widow, then for the children if
there be any, the whole of the estate, after the payment of the funeral
expenses, the expenses of the last sickness, and expenses of the
administration, and there must be no further proceedings in the
administration unless further estate be discovered; and wnen it so
appears that the value of the whole estate does not exceed the Sum of
three thousand dollars, it is in the discretion of the probate court to
dispense with the regular proceedings, or any part thereof, prescribed
in this chapter, and there must be had a summary administration of

• 628 Administrators. Probate Code.

the estate, and an order of distribution thereof at the end of six
months after the issuing of letters; the notice to creditors mast be
given to present their claims within four months after the first publica-
tion of such notice, and those not so presented are barred as in other
cases.

§ 136. Widow's separate property.] If the widow has a mainte-
nance derived from her own property, equal to the portion set apart to
her by the preceding sections of this subdivision, the whole property
so set apart, other than her right in the homestead, must go to the
minor children.

CHAPTER FI.

OF CLAIMS AGAINST THE ESTATE.

§ 137. Notice to creditors.] Every executor or administrator
must, immediately after his ap]3ointment, cause to be published in
some newspaper of the county, it there be one, if not, then in such
newspaper as may be designated by the court, a notice to the creditoi's
of the decedent, requiring all persons having claims against him to
exhibit thorn with t-lie necessary vouchers, to the executor or adminis-
trator, at the place of his residen(*e or business, to be specified in the
notice. Snch notice mus't. be published as often as tbe judge shall
direct, but not less than once a week for four weeks. The judge may
also direct additional notice l)y publication or posting. In case such
executor or administrator resigns, or is removed, before the time
expressed in the notice, his successor must give notice only for the
unexi)ired time allowed for such presentation.

§ 138. Periods allowed.] The time expressed in the notice must
be six months after its first publication, when the estate exceeds in
value the sum of five thousand dollars, and four months when it does
not.

§ 139. Proof, approval, and record of notice.] After the notice is
given, as required by the preceding section, a copy thereof, with the
affidavit of due publication, or of publication and posting, must be
filed, and upon such affidavit or other testimony to the satisfaction of
the court, an order or decree, showing that due notice to creditors
has been given must be made by the court and entered in the minutes
and recorded.
V.\V7«J. <i\%\ § 140. Claims not presented barred exceptions.] If a claim

arising upon a contract heretofore made, be not presented within the
time limited in the notice, it is barred forever, except as follows; If
it be not then due, or if it be contingent, it may be presented within
one month after it becomes due or absolute; if it be made to appear
by the affidavit of the claimant, to the satisfaction of the executor or
administrator and the judge of the probate court, that the claimant
had no notice, as provided in this chapter, by reason of being out of
the ten-itory, it may be presented at any time before a decree of
distribution is entered; a claim for a deficiency remaining unpaid
after a sale of property of the estate mortgaged or pledged must be
presented within one month after such deficiency is ascertained. All

Probate Code, Administratoes. 629

claims arising upon contracts hereafter made, whether the same be
due, not due, or contingent, must be presented within the time limited
in the notice; and any claim not so presented is barred forever:
Provided^ howeve7% That when it is made to appear by the affidavit of
the claimant, as above provided, that he had no notice, by reason
of being out of the territory, it may be presented as therein provided.

§ 141. Proof of claims.] Every claim which is due when presented
to the administrator must be supported by the affidavit of the claim-
ant, or some one in his behalf, that the amount is justly due, that no
payments have been made thereon which are not credited, and that
there are no oflfeets to the same, to the knowledge of the claimant or
affiant. If the claim be not due when presented, or be contingent,
the particulars of such claim must be stated. When the affidavit is
made by a person other than the claimant, he must set forth in the
affidavit the reason why it is not made by the claimant. The executor
or administrator may also require satisfactory vouchers or proofs to be
produced in support of the claim. If the estate is insolvent, no
ffreater rate of interest shall be allowed upon any claim, after the
first publication of notice to creditors, than is allowed by law oa
judgments obtained in the district court.

§ 142. How ALLOWED NOT PROVED. | Wlicu it shall appear, upon the
settlement of the accounts of any executor or administrator, that
debts against the deceased have been paid without the affidavit and
allowance prescribed by the preceding section, and shall be proven
by competent evidence to the satisfaction of the probate court that
such debts were justly due, were paid in good faith, that the amount
paid was the true amount of such indebtedness over and above all
payments or set-offs, and that the estate is insolvent, it shall be the
duty of the said court to allow the said sums so paid in the settlement
of said acountjr.

§ 143. Claim by probate judge.] Any judge of the probate court
may present a claim against the estate of a aecedent, for allowance,
to the executor or administrator thereof; and if the executor or
administrator allows or rejects the claim, he must, in writing, present
the same to the county clerk of the county, who shall thereupon be
substituted in the settlement of said estate in place of the probate
judge, as provided by law, and the judge of the probate court present-
ing such claim, in case of its rejection by the executor or adminis-
trator, or by such county clerk, acting as judge, has the same right to
sue in a proper court for its recovery as other persons have when their
claims against an estate are rejected.

§ 144. Allowance and rejection of claims.] When a claim,
accompanied by the affidavit required in this chapter, is presented to
the executor or administrator, he must indorse thereon his allowance
or rejection, with the day and date thereof. If he allow the claim, it
must be presented to the judge for his approval, who must, in the same
manner, indorse upon it his allowance or rejection. If the executor
or administrator, or the judce refuse or neglect to indorse, such
allowance or rejection for ten days after the claim has been presented
to him, such refusal or neglect is equivalent to a rejection on the
tenth day; and if the present^^tion be made by a notary, the certificate
of such notary, under seal, is prima facie evidence of such presenta-

630 Administrators. Probate Code.

tion and rejection. If the claim be presented to the executor or
administrator before the expiration of the time limited for the
presentation of claims, the same is presented in time, though acted
upon by the executor or administrator, and by the judge, after the
expiration of such time.

§ 145. Claims filed in court.] Every claim allowed by the execu-
tor or administrator, and approved by the judge, or a copy thereof, as
hereinafter provided, must, within thirty days thereafter, be filed in
the probate court, and be ranked among the acknowledged debts of
the estate, to be paid in due course of administration. If the claim
is founded on a bond, bill, note, or any other instrument, a copy of
such instrument must accompany the claim, and the original instru-
ment must be exhibited if demanded, unless it is lost or destroyed, in
which case the claimant must accompany his claim by his affidavit,
containing a copy or particular description of such instrument, and
stating its loss or destruction. If the claim or any part thereof is
secured by a mortgage or other lien which has been recorded or filed,
according to law, in tne office of the register of deeds of the county in
which the land affected by it lies, it is sufficient to describe the mort-
gage or lien, and refer to the date of its filing and volume, and page
of its record. If, in any case, th6 claimant has left any original
voucher in the hands of tlie executor or administrator, or suffered the
same to be filed in court, he may withdraw the same w^hen a copy of
the same has been already, or is then, attached to his claim. A brief
description of every claim filed must be entered by the judge in the
register, showing the name of the claimant, the amount and char-
ac/ter of the claim, rate of interest, and date of allowance.

§ 146. Suit on rejected claim.] When a claim is rejected, either
by the executor or administrator, or the judge of the probate court,
the holder must bring suit in the proper court, to- wit: before a justice
of the peace or in the district court, according to its amount, against
the executor or administrator, within three months after the date of
its rejection, if it be then due; or within two months after it becomes
due; otherwise the claim is forever barred.

§ 147. Claims barred — examination.] No claim must be, allowed
by the executor or administrator, or by the judge, which is barred by
the statute of limitations. When a claim is presented to the judge for
his allowance, he may, in his discretion, examine the claimant and
others, on oath, and hear any other legal evidence touching the validity
of the claim.

§ 148. Presentment required.] No holder of any claim against an
estate shall maintain any action thereon, unless the claim is nrst pre-
sented to the executor or administrator.

§ 149. Vacancy in administration.] The time during which there
shall be a vacancy in the administration, must not be included in any
limitation herein prescribed.

§ 150. Actions pending at death.] If an action is pending against
the decedent at time of his death, the plaintiff must m like manner
present his claim to the executor or administrator, for allowance or
rejection, authenticated as required in other cases; and no recovery
shall be had in the action unless proof be made of the presentation
required.

s

Probate Code. Administrators. 631,

§ 151. Partial allowance.] Whenever any claim is presented to
an executor or administrator, or to the judge of the probate court, and
he is willing to allow the same in part, he must state in his indorse-
ment the amount he is willing to allow. If the creditor refuse to
accept the amount allowed in satisfaction of his claim, he shall recover
no costs in an action therefor, brought against the executor or admin-
istrator, unless he recovers a greater amount than that offered to be
allowed.

^ 152. Effect of judgment.] A judgment rendered against an
executor or administrator in the district court, or before a magistrate,
upon any claim for money against the estate of his testator or intes-*
tate, only establishes the claim in the same manner as if it had been
allowed by the executor or administrator and the judge of the probate
court, and the judgment must be that the executor or administrator
ay, in due course of administration, the amount ascertained to be
ue. A certified transcript of the judgment must be filed in the pro-
bate court. No execution must issue upon such judgment, nor shall it
create any lien upon the property of the estate or give to the judgment
creditor any priority of payment.

§ 153. Judgments before death— how collecte©.] When any
judgment has been rendered for or against the testator or intestate in
his lifetime, no execution shall issue thereon after his death, except:

1. In case of the death of the judgment creditor, upon the applica-
tion of his executor or administrator, or successor in interests.

2. In case of the death of the judgment debtor, if the judgment be
for the recovery of real or personal property,, or the enforcement of a
lien thereon.

A judgment against the decedent for the recovery of money, must
be presented to the executor or administrator, like any other claim. *
If the execution is actually levied upon any property of the decedent
before his death, the same may be soli for the satisfaction thereof, and
the officer making the sale must account to the executor or adminis-
trator for anj^ surplus in his hands.

^ 154. Death after verdict.] A judgment rendered against a
decedent, dying after verdict or decision on an issue of fact, but before
judgment is rendered thereon, is not a lien on the real property of the
decedent, but is payable in due course of administration.

§ 155. Reference of claim.] If the executor or administrator
doubts the correctness of any claim presented to him, he may enter
into an agreement, in writing, with the claimant, to refer the matter
in controversy to some disinterested person, to be approved by the judge
of the probate court, upon filing the agreement and approval of the judge
of the probate court, in the office of the clerk of the district court- for the
county, or judicial subdivision, in which the letters testamentary or of
administration were granted, the clerk must, either in vacation or in
term, enter a minute of the order referring the matter in controversy
to the person so selected; or, if the parties consent, a reference may
be had in the probate court; and the report of the referee, if confirmed,
establishes or rejects the claim, the same as if it had been allowed or
rejected by the executor or administrator and the probate judge.

§ 156. Referee's duties.] The referee must hear and determine
the matter, and make his report tnereon to the court in which his

632 Administrators. Probate Code^

appointment is entered. The same proceedings shall be had in all
respects, and the referee shall have the same powers, be entitled to the^
same compensation, and subject to the same control as in other cases
of reference. The court may remove the referee, appoint another in
his place, set aside or confirm his report, and adjudge costs, as in
actions against executors or administrators, and the judgment of
the court thereon shall be as valid and effectual, in all respects, as
if the same had been rendered in a suit commenced bv ordinarv
process.

§ 157. Costs against representative.] When a judgment if?
Recovered, with costs, against any executor or administrator, he shall
be individually liable for such costs, but they must be allowed him in
his administration accounts, unless it appears that the suit or proceed-
ing in which the costs were taxed was prosecuted or defended without
just cause.

§ 158. Claim by.] If the executor or administrator is a creditor of
the decedent, his claim, duly authenticated by affidavits, must be pre-
sented for allowance or rejection to the judge of the probate court,
and its allowance by the judge is sufficient evidence of its correctness,
and it must be pnid as other claims, in due course of administration.
If, however, the judge rejects the claim, action thereon may be had
against the estate by the claimant, and summons must be served
upon the judge of the probate court, who may appoint an attorney at
the expense of the estate, to defend the action. Ii the claimant recover
no judgment he must pay all costs, including defendant's attorney s
fee.

§ 159. Neglect to give creditors notice.) If an executor or
administrator neglect for two months after his appointment to give
"notice to creditors, as prescribed by this subdivision, the court must
revoke his letters, and appoint some other person in his stead, equally,
or next in order, entitled to the appointment.

§ 160. Statement op claims.] At the same term at which he is^
required to return his inventory, the executor or administrator must
also return a statement of all claims against the estate which have
been presented to him, if so required by the court; and from term to
term thereafter he must present a statement of claims subsequently
presented to him. In all such statements he must designate the names
of the creditors, the nature of each claim, when it became due or will
become due, and whether it was allowed or rejected by him.

§ 161. Payment of claims not due.] If there be any debt of the
decedent bearing interest, whether presented or not, the executor or
administrator may, by order of the probate court, pay the amount then
accumulated and unpaid, or any part thereof, at any time when there
are sufficient funds properly applicable thereto, whether said claim be
then due or not; and interest shall thereupon cease to accrue upon the
amount so paid. This section does not apply to debts existing at the
date this law goes into effect, unless the creditor consent to accept the
amount.

Probate Code. Administrators. 63S

CHAPTER VII.

OF SALES AND CONVEYANCES OF PROPERTY OF DECEDENTS.

Article I. — Of Sales in General.

§ 162. Property cha'rgeable.] All the property of a decedent,
except as otherwise provided for the homestead and personal property
set apart for the surviving wife or husband, and minor child or children,
shall be chargeable with the payment of the debts of the deceased, the
expenses of administration, and the allowance to the family. And the
property, ];)ersonal and real, may be sold as the court may direct, in
the manner hereinafter prescribed. There shall be no prioritj^ as
between personal and real property for the above purposes.

§ 163. Court orders all sales.] No sale of any property of an
estate of a decedent is valid unless made under order of the probate
court, except as othei'wise hereinafter provided. All sales must be
reported under oath, and confirmed by the probate (*ourt, before the
title to the property sold passes.

§ 164. Petitions for orders.] All petitions for orders of sale must
be in writing, setting forth the facts showing the sale to be necessary,
and upon the hearing, any person interested in the estate may file
his written objections, which must be heard and determined. A
failure to set forth the facts, showing the sale to be necessary, will not
invalidate the subsequent proceedings, if the defect be supplied by the
proofs at the hearing, and the general facts showing the necessity be
stated in tlie order directing the sale.

§ 165. But one sale.] When it appears to the court that the
estate is insolvent, or that it will require a sale of all the property of
the estate, of every character, chargeable therewith, to pay the family
allowance, expenses of administration, and debts, there need be l)ut
one petition filed, but one order of sale made, and but one sale had.
except in cases of perishable property, which may be sold as provided
in the next section. The probate court, when a petition for the sale of
any property, for any of the purposes herein named, is presented,
must inquire fully into the probable amount required to make all
such payments, and if there be no more estate chargeable therewith
than sufficient to pay the same, may require but one proceeding for
• the sale of the entire available estate. In such case the petition must
set forth all the facts required by section 172.

Artycle 11. - Sales of Personal Property.

§ 166. What sold without notice.] At any time after receiving
letters the executor, administrator, or special administrator •niay
apply to the judge and obtain an order to sell perishable and other per-
sonal property likely to depreciate in value, or which will incur loss
or expense by being kept, and so much other personal property as
may be necessary to pay the allowance made to the family of the
decedent. The order for the sale may be made without notice; but
the executor, administrator or special administrator, is responsible for

1

€84 Administeators. Probate Cade.

the propert}^ unless, after making a sworn return, and on a proper
showing, the court shall approve the sale.

§ 167. Pre-requisites to sales.] If claims against the estate have
been allowed, and a sale of propertj'^ is necessary for their payment, or
the expenses of administration, or for the payment of legacies, the
executor or administrator may apply for an order to sell so much of
the personal property as may be necessary therefor. Upon filing his
petition, notice of at least five days must be given of the hearing
of the application, either by posting notices or by advertising. He
may also make a similar application, either in vacation or term, from
time to time, so long as any personal property remains in his hands,
and sale thereof is necessary. If it appear for the best interest of the
ostate, he may, at any time after filing the inventories, in like manner
4ind after giviiig like notice, apply for and obtain an order to sell the
whole of the personal property belonging to the estate, remaining and
not set apart, whether necessary to pay debts or not.

§ 168. Partnership and claims.] Partnership interests, or interests
belonging to any estate by virtue of any partnership formerly existing,
interest in personal property pledged, and choses in action, may be
sold in the same manner as other pei-sonal property, when it appears
to be for the best interest of the estate. Before confirming the sale
of any partnership interest, whether made to the surviving partner or
to any other person, the judge must carefully inquire into the condition
of the partneship affairs, and must examine the surviving partner, if in
the county and able to be present in court.

§ 169. Causes for sales — what sold.] If it appear that a sale is
necessary for tlie payment of debts or the family allowance, or for the
bCvSt interest of the estate, and . the persons interested in the property
to be sold, whether it is or is not necessary to pay the debts or family
allowance, the court or judge must order it to be made. In making
■orders and sales for the payment of debts or family allowance, such
articles as are not necessaiy for the support and subsistence of the
family of the decedent, or are not specially bequeathed, must be first
5old, and the court or judge must so direct.

^ 170. Method and notice of sale.] The sale of personal property
must be made at public auction, and after public notice given for at
least fifteen days, by notices posted in three public places in the
county, or by publication in a newspaper, or both, containing the time
-and place of sale, and a brief description of the property to be sold;
unless for good reasons shown, the court or judge orders a private
sale, or a shorter notice. Public sales of such property must be made
at the court house door, or at the residence of the decedent, or at some
other public place, but no sale shall be made of any personal property,
which is not present at the time of sale, unless the court or judge
otherwise order.

Article fll. -Sales of Real Estate, Interests Therein, and Con-
firmations Thereof.

§ 171. When sale nboessary.] When a sale of property of the
estate is necessary to pay the allowance of the family, or the debts
outstanding against a decedent, or the debts, expenses, or charges of

Probate Code, Administrators. 635

administration, or legacies, the executor or administrator may also
sell any real, as well as personal property of the estate, in his hands
and chargeable for that purpose, upon the order of the probate court;
and an api)lication for the sale of real property may also embrace the
sale of personal property.

§ 172. Requisites of petition for sale.] To obtain an order for
the sale of real property, he must present a verified petition to the
probate court, or to the judge thereof, setting forth the amount of
personal property that has come into his hands as assets, and how
much thereoi, if any, remains undisposed of; the debts outstanding
against the decedent, as far as can be ascertained or estimated; the
amount due upon the family allowance, or that will be due after the
same has been in force for one year; the debts, expenses, and charges
of administration already accrued, and the estimate of what will or
may accrue during the administration; a general description of all
the real property, except the homestead, oi which the decedent died
seized, or in which he had any interest, or in which the estate has
acquired any interest, and the condition and value thereof; the names
of the legatees and devisees, if any, and the heirs of the decedent, so
far as known to the petitioner. If any of the matters here enume-
rated cannot be ascertained, it must' be so stated in the petition ; biit a
failure to set forth the facts showing the sale to be necessary, will not
invalidate the subsequent proceedings, if the defect be supplied by
the proofs at the hearing, and the general facts showing such necessity
be stated in the decree.

§ 173. Order for hearing.] If it appears to the court or judge,
from such petition, that it is necessary to sell the whole or some por-
tion of sucn real estate for the purposes and reasons mentioned in the
preceding section, or of any of them, such petition must be filed .and
an order thereupon made, directing all persons interested in the estate
to appear before the court, at a time and place specified, not less than
four nor more than ten weeks from the time of making such order, to
show cause why an order should not be granted to the executor or
administrator to sell so much of the real estate of the decedent as is
necessary.

§ 174. Service on whom — waiver.] A copy of the order to show
cause must be personally served on all persons interested in the estate,
any general guardian of a minor so interested, and any legatee or
devisee, or heir of the decedent, provided they are residents of the
county, at least ten days before the time appointed for hearing the
petition, or be published four successive weeks in such newspaper of
the county as the court or judge shall direct. If all persons interested
in the estate join in the petition for the sale, or signify in writing their
assent thereto, the notice may be dispensed with and the hearing may
be had at any time.

§ 175. Hearing, unless written consent.] The probate court, at
the time and place appointed in such order, or at such other time to
which the hearing may be postponed, upon satisfactory proof of per-
sonal service or publication of a copy of the order, by afiBdayit or
otherwise, if the consent in writing to such sale of all parties inter-
ested is not filed, must proceed to hear the petition, and hear and
examine the allegations and proof of the petitioners, and of persons

686 Administratoes. Probate Code.

interested in the estate who may oppose the application. All claims
against the decedent not before presented, if the period of presenta-
tiop has not elapsed, may be presented and passed upon at the hearing.

§ 176. Compulsory attendance.] The executor, administrator, and
witnesses may be examined on oath by either party, and process to
compel them to attend and testify may be issued by the juage of the
probate court in the same manner and with like effect as in other
cases.

§ 177. All realty may be sold.] If it appear necessary to sell a
part of the real estate, and that by a sale thereof the residue of the
estate, real or personal, or some specific part thereof, would be greatly
injured or diminished in value, or subjected to expense, or rendered
unprofitable, or that after such sale the residue would be so small in
quantity or value, or would be of such a character, with reference to
its future disposition among the heirs or devisees, as clearly to render
it for the best interests of all concerned that the same should be sold,
the court may authorize the sale of the whole estate, or of any part
thereof necessary and for the best interest of all concerned.

§ 178. Order of sale.] If the court be satisfied, after a full
hearing upon the petition and an examination of the proofs and alle-
gations of the parties interested, that a sale of the whole or some
portion of the real estate is necessary, for any of the causes mentioned
in this article, or if such sale be assented to by all the persons inter-
ested, an order must be made to sell the whole, or so much and such
parts of the real estate described in the petition, as the court shall
judge necessary or beneficial.

§ 179. Contents of order —terms and method of sale.] The order
of sale must describe the lands to be sold and the terms of sale, which
may be for cash, or may be for one-third cash, and the balance on a
credit not exceeding two years, payable in gross, or in installments
within that time, with interest, as the court may direct. The land
may be sold in one parcel, or in subdivisions, as the executor or
administrator shall judge most beneficial to the estate, unless the
court otherwise specially directs. If it appears that any part of
such real estate has been devised, and not charged in such devise with
the payment of debts or legacies, the court must order the remainder
to be sold before that so devised. Every such sale must be ordered to
be made at public auction, unless, in the opinion of the court, it would
benefit the estate to sell the whole or some part of such real estate at
private sale; the court may, if the same is asked for in the petition,
order or direct such real estate, or any part thereof, to be sold at
either public or private sale, as the executor or administrator shall
judge to be most beneficial for the estate. If the executor or admin-
istrator neglects or refuses to make a sale under the order and as
directted therein, he maj^ be compelled to sell, by order of the court,
made on motion, after due notice, by any party interested.

§ 180. Petition for sale by others.]
istrator neglects to apply for any order of sale when it is necessary,
any person may make application therefor, in the same manner as
the executor or administrator, and notice thereof must be given to
the executor or administrator, before the hearing. The petition of
such applicant must contain as many of the matters required for the

If the executor or admin-

Frohafe Code, Administrators, #87

Setitioii of the executor or administrator as he can ascertain, and the
ecree of sale must fix the period of time within which the executor
or administrator must make the sale.

§ 181. Notice of sale.) When a sale is ordered, and is to be made
at public auction, notice of the time and place of sale must be posted
in three of the most public places in the county in which the land is
situated, and published in a newspaper if there be one printed in the
same county, but if none, then in such paper as the court may direct,
for three weeks successively next before the sale. . The lands and
tenements to be sold must be described with common certainty in the
notice.

§ 182. Place and time op sale.] Sales at public auction must be
made in the county where the land is situated: but when the land is
situated in two or more counties, it may be sold in either. The sale
must be made between the houi's of nine o'clock in the morning and
the setting of the sun on the sam^ daj% and must be made on the day
named in the notice of sale, unless the same is postponed.

§ 183. Private sale notice — bids.] When a sale of real estate is
ordered to be made at private sale, notice of the same must
be posted up in three of the most public places in the county in which
the land is situated, and published in a newspaper, if there be one
printed in the same county: if none, then in such paper as the court
may direct, for two weeks successively next before the day on or after
which the sale is to be made, in which the lands and tenements to be
sold must be described with common certaintv. The notice must state
a day on or aft^r which the sale will be made, and a place where offers
or bids will be received. The day last referred to must be at least
fifteen days from the first publicaticm of notice, and the sale must not
be made before that day, but must be made within six months there-
after. The bids or offers must be in writing, and may be left at the
place designated in the notice, or delivered to the executor or
administrator personally, or may be filed in the office of the judge of
the probate court, to which the return of sale must be made, at any
time after the first publication of notice, and before the making of the
sale. If it is shown that it will be for the best interest of the estate,
the court or judge may, by an order, shorten the time of notice, which
shall not, however, be less than one week, and may provide that the
sale may be made on or after a day less than fifteen, but not less than
eight, days from the first publication of the notice, in which case the
notice of sale and the sale may be made to correspond with such order.

§ 184. Limit of price- -re-apprais«ment.] No sale of real estate at
private sale shall be confirmed by the court unless the sum ofTered is
at least ninety per cent, of the appraised value thereof, nor unless such
real estate has been appraised within one year of the time of such sale.
If it has not been so appraised, or if the court is satisfied that the
appraisement is too high or too low, appraisers must be appointed, and
they must make an appraisement thereof in the same manner as in
<?ase of an original appraisement of an estate. This may be done at
any time before the sale or the confirmation thereof.

§ 185. SECTTRify FOR CREDIT.] The oxccutor or administrator must,
when the sale is made upon a credit, take the notes of the purchaser

638 Administrators. Probate Code,

for the purchase money with a mortgage on the property to secure
their payment.

§ 186; Return OF SALE — hearing — re-sale.] The executor or admin-
istrator after making any sale of real estate, must make a return of his
proceedings to the probate court, which must be filed by the judge, at
any time subsequent to the sale, either in term or vacation. Tf the
sale be made at public auction, and the return is made and filed on or
before the first day of the next term thereafter, no notice is required
of such return or of the hearing thereof, but the hearing may be had
upon the first day of the term, or any subsequent day to which the
same may be postponed. If the sale be not made at public auction, or
if made at public auction a hearing upon the return of proceedings be
asked for in the return, or is brought on for a hearing upon a day
before the first day of the next term thereafter, or upon any other day
than the first day of the next term after such sale, the court or judge
must fix the day for the hearing, of^which notice of at least ten days
must be given by the judge, by notices posted in three public places in
the county, or by publication in a newspaper, or both, as he may deem
best, and must briefly indicate the land sold, the sum for which it was
sold, and must refer to the return for further particulars. Upon the
hearing the court must examine the return and witnesses in relation
to the same, and if the proceedings were unfair, or the sum bid dis-
proportionate to the value, and if it appear that a sum exceeding such
bid at least ten per cent., exclusive of the expenses of a new sale, may
be obtained, the court may vacate the sale and direct another to be
had, of which notice must be given, and the sale in all respects con-
ducted as if no previous sale liad taken place; if an offer ten per cent,
more in amount than that named in the return be made to the court
in writing, by a responsible person, it is in the discretion of the court
to accept such offer and confirm the sale to such person or to order a
new sale.

§ 187. Objections to sale.] When return of the sale is made and
filed, any person interested in the estate may file written objections to
the confirmation thereof, and may be heard thereon when the return
is heard by the court or judge, and may produce witnesses in support
of his objections.

§ 188. Confirming order — re-sale.] If it appear to the court that
the sale was legally made and fairly conducted, and that the sum bid
was not disproportionate to the value of the property sold, and that a

greater sum, as above specified, cannot be obtained, or if the increased
id mentioned in section 231 [186] be made and accepted by the courts
the court must make an order confirming the sale, and directing con-
veyances to be executed. The sale, from that time, is confirmed and
valid, and a certified copy of the order confirming it and directing
conveyances to be executed, must be recorded in the office of the regis-
ter of deeds of the county within which the land sold is situated. If
after the confirmation the purchaser neglects or refuses to comply
with the terms of sale, the court may, on motion of the executor or
administrator, and after notice to the purchaser, order a re-sale to be
made of the property. If the amount realized on such re-sale does
not cover the bid and the expenses of the previous sale, such purchaser
is liable for the deficiency to the estate.

Probate Code. Administrators. 63^

§ 189. CoNVBYANCB AND BEGORD — EFFECT OF.] Conveyances must
thereupon be executed to the purchaser by the executor or adminis-
trator, and they must refer to the orders of the probate court authoriz-
ing and confirming the sale of the property of the estate, and directing
conveyances thereof to be executed, and to the record of the order
of confirmation in the office of the register of deeds, by the date,
volume, and page of the record, and such reference shall have the
same effect as if the orders were at large inserted in the conveyance.
Conveyances so made convey all the right, title, interest, and estate of
the fJecedent, in the premises, at the time of his death; if, prior to the
sale, by operation oi law or otherwise, the estate has acquired any
right, title, or interest in the premises, other than, or in addition to,
that of the decedent at the time of his death, such right, title, or
interest also passes by such conveyance.

§ 190. Proof before order.] Before any order is entered confirm-
ing the sale, it must be proved to the satisfaction of the court that
notice was given of the sale as prescribed, and the order ©f confirma-
tion must show that such proof was made.

§ 191. Postponement of sale.] If at the time appointed for the
sale the executor or administrator deems it for the interest of the
persons concerned therein that the same be postponed, he may post-
pone it from time to time, not exceeding in all three months.

§ 192. Notice of same at place.] In case of a postponement,
notice thereof must be given by a public declaration, at the time and
place first appointed for the sale, and if the postponement be for more
than one day, further notice must be given by posting notices in three
or more public places in the county where the land is situated, or
publishing the same, or both, as the time and circumstances will
admit.

§ 198. Will must be ' followed.] If the testator makes provision
by his will, or designates the estate to be appropriated for the pay-
ment of his debts, the expenses of administration, or family expenses,
they must be paid accordins to such provision or designation, out of
the estate thus appropriated so far as the same is sufficient.

§ 194. Sales under will — confirmation.] When property is
directed by the will to be sold, or authority is given in the will to sell
property, the executor may sell any property of the estate without
the order of the probate court, and at either public or private sale,
and with or without notice, as the executor may determine; but the
executor must make return of such sales as in other cases; and if
directions are given in the will as to the mode of selling, or the par-
ticular property to be sold, such directions must be observed. In
either case no title passes unless the sale is confirmed by the court.

§ 195. Preferred property.] If the provision made by the will,
or the estate appropriated therefor, is insufficient to pay the debts,
expenses of administration, and family expenses, that portion of the
esta^te not devised or disposed of by will, if any, must be appropriated
and disposed of for that purpose, according to the provisions of this
article.

§ 196. Property liable for debts, etc.] . The estate, real and
personal, given by will to legatees or devisees, is liable for the debts,
expenses of administration, and family expenses, in proportion to the

640 Administrators. Probate Code,

value or amount of the several devises or legacies, but specific devises
or legacies are exempt from such liability if it appears to the court
necessarry to carry into efl'ect the intention of the testator, and there
is other sufficient estate.

§ 197. Contribution from all.] When an estate given by will has
been sold for the payment of debts or expenses, all the divisees and
legatees must contribute according to their respective interests to the
devisee or legatee whose devise or legacy has been taken therefor, and
the probate court, when distribution is made, must, by decree for
that purpose, settle the amount of the several liabilities, and decree the
amount each person shall contribute, and reserve the same from their
distributive shares respectively for the puipose of paying such con-
tribution.

§ 19S. Contract to purchase land.] If a decedent, at the time of
his death was possessed of a contract for the purchase of lands,
his interest in such land and under such contracts may be sold on the
application of his executor or administrator, in the same manner as
if ne had died seized of such land, and the same proceedings may be
had for that purpose as are prescribed in this chapter for the sale of
lands of which he died seized, except as hereinafter provided.

§ 199. Terms of such sale.] The sale must be made subject to all
payments that may thereafter become due on such contracts, and if
there are any such, the sale must not be confirmed by the probate
court until the purchasei's execute a bond to the executor or adminis-
ti-ator, for the benefit and indemnity of himself and of the persons
entitled to the interest of the decedent in the lands so contracted for,
in double the whole amount of payments thereafter to become due
on such contract, with such sureties as the probate judge shall approve.

§ 200. Bond from purchaser.] The bond must l)e conditioned that
the purchaser will make all payments for such land that become due
after the date of the sale, and will fully indemnify the executor or
adrhinistrator and the persons so entitled against all demands, costs,
charges and expenses, by reason of any convenant or agreement con-
tained in such contract.

^201. Transfer of title.] Upon the confirmation of the sale,
the executor or administrator must execute to the purchaser an assign-
ment of the contract, which vests in the purchaser, his heirs aiid
assigns, all the right, title and interest of the estate, or of the persons
entitled to the interest of the decedent, in the lands sold at the time
of the sale, and the purchaser has the same rights and remedies
against the vendor of such land as the decedent would have had if he
were living.

§ 202. Liens on realty paid.] When any sale is made by an execu-
tor or administrator, pursuant to the provisions of this chapter, of
lands subject to any mortgage or other lien, which is a valid claim
against the estate of the decedent, and has been presented and allowed,
the purchase money must be applied, after paying the necessary
expenses of the sale, first to the payment and satisfaction of the
mortgage or lien, and the residue, if any, in due course of administra-
tion. The application of the purchase money to the sq.tisfaction of
the mortgage or lien must be made without delay; and the land is
subject to such mortgage or lien until the purchase money has been

Probate Code, - Administrators. 641

actually so applied. No claim against any estate which has been pre-
sented and allowed is affected by the statute of limitations, pending
the proceedings for the settlement of the estate. The purchase
money, or so much thereof as may be suflBcient to pay such mort-
gage or lien, with interest and any lawful costs and cnarges thereon,
may be paid into the probate court, to be received by the judge
thereof, whereupon the mortgage or lien upon the land must cease,
and the purchase money must be paid over by the judge without
delay, in payment of the expenses of the sale, and m satisfaction
of the debt, to secure which the mortgage or other lien was taken,
and the surplus, if any, at once returned to the executor or
administrator, unless for good case shown, after notice to the executor
or administrator, the judge otherwise directs. i

§ 203. Lienor may purchase.] At any sale under order of the

Erobate court, of lands upon which there is a mortgage or lien, the
older thereof may become the purchaser, and his receipt for the
amount due him from the proceeds of the sale is a payment pro tanto.
If the amount for which he purchased the property is insufficient to
defray the expenses and discnarge his mortgage or lien, he must pay
to the judge an amount sufficient to pay such expenses.

§ 204. Misconduct of sale.] If there is any neglect or misconduct
in the proceedings of the executor or administrator in relation to any
sale, by which any person interested in the estate suffers damage, the
party aggrieved may recover the same in an action upon the bond of
the executor or administrator, or otherwise.

§ 205. Fraudulent sale.] Any executor or administrator who
fraudulently sells any real estate of a decedent, contrary to or other-
wise than under the provisions of this chapter, is liable in double the
value of the land sold, as liquidated damages, to be recovered in an
action by the person having an estate of inneritance therein.

§ 206. Actions to recover limited.] No action for the recovery of
any estate, sold by an executor or administrator under the provisions
of this chapter, can be maintained by any heir or other person claim-
ing under tne decedent, unless it be commenced within three years
next after the sale. An action to set aside the sale may be instituted
and maintained at any time within three years from the discovery of
the fraud, or other grounds upon whic^ the action is based.

§ 207. Legal disabilities.] The preceding section shall not ai)ply
tK) minors, or others under any legal disability, to sue at the time
when the right of action first accrues; but all such persons may com-
mence an action at any time within three years after the removal of
the disability.

§ 208. Account of sales.] When a sale has been made by an executor
or administrator, of any property of the estate, real or personal, he
must return to the prooate court, at its next term thereafter, an
account of sales, verified by his affidavit. If he neglect to make such
return, he may be punished by attachment, or his letters may be
revoked, one day's notice having been first given him to appear and
show cause why such attachment should not issue, or such revocation
should not be made.

41

642 Administrators. Probate Code,

§ 209. Representative not purchaser.] No executor or adminis-
trator must, directly or indirectly, purchase any property of the estate
he represents, nor must he be interested in any sale.

CHAPTER VITT.

OF THE POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS, AND

OF THE MANAGEMENT OF ESTATES.

§ 210. Possession, powers, and duties.] The executor or adminis-
trator must take into his possession all the estate of the decedent, real
and personal, except the homestead and personal property not assets,
and collect all debts due to the decedent or to the estate. For the
purpose of bringing suits to quiet title or for partition of such estate,
the possession of the executors or administrators is the possession of
the heirs or devisees; such possession by the heirs or devisees is subject,
however, to the possession of the executor or administrator, for the
purposes of, administration, as provided in this title.

§ 211. Actions by and against.] Actions for the recovery of any
property, real or pei'sonal, or for the possession thereof, and all actions
founded upon contracts, may be maintained by and against executors
and administrators, in all cases and in the same courts in w^hich the
same might have been maintained by or against their respective
testators or intestates.

§ 212. Waste and conversion.] Executors and administrators may
in like manner maintain actions against any person who has wasted,
destroj'^ed, taken, or carried away, or converted to his own use, the
goods of their testator or intestate in his lifetime. They may also
maintain actions for trespass committed on the real estate of the
decedent in his lifetime.

§ 213. Same against representatives.] Any person, or his per-
sonal representatives, may maintain an action against the executor or
administrator of any testator or intestate who in his lifetime has
wasted, destroyed, taken, or carried away, or converted to his own use,
the goods or chattels of any such person, or committed any trespass
on the real estate of such persoh.

§ 214. Inventory and bond by surviving partner.] When a part-
nership exists between the decedent, at the time of his death, and any
other person, the surviving partner shall immediately, in company
with the executor or administrator, or some other person or persons,
to be appointed by the judge of the probate court, take and furnish to
said executor or administrator a correct and full inventory, and a fair
and just appraisement, of all partnership property and assets held and
belonging to himself and the deceased partner, after which the surviv-
ing partner shall settle the business of the co-partnership. The sur-
viving partner shall settle the affairs of the partnership without delay,
and account with the executor or administrator, and pay over such
balances as may from time to time be payable to him in right of the
decedent. Upon the application of the executor or administrator, the
judge of the probate court shall in all cases require the surviving part-

Probate Code, Administrators. 643

iier to give a good and sufficient bond, to be approved by the judge of
the probate court, for the honest and faithful disposal of the interest
of the decedent in the co-partnership, and the prompt payment of the
proceeds thereof over to the executor or administrator, and, in case of
neglect or refusal, may, after notice, compel it by attachment; and the
executor or administrator may maintain against him any action which
the decedent could have maintained.

§ 215. Actions against predecessor.] An administrator may, in
his own name, for the use and benefit of all parties • interested in the
estate, maintain actions on the bond of an executor, or of any former
administrator of the same estate.

§ 216. Joinder of parties.] In actions by or against executors, it
is not necessary to join those as parties to wham letters were issued,
but who have not qualified.

§ 217. Compounding debts.] Whenever a debtor of a decedent is
unable to pay all his debts, the executor or administrator, with the appro-
bation of the probate judge, may compound with him, and give him a
discharge upon receiving a fair and just dividend of his effects. A
(Compromise may also be authorized, when it appears to be just, and
for tne best interest of the estate.

§ 218. Recovery of fraudulent conveyances.] When there is a
deficiency of assets in the hands of an executor or administrator, and
when the decedent, in his lifetime, has conveyed any real estate, or
any rights or interests therein, with intent to defraud his creditors, or
to avoid any right, debt, or duty of any person, ox has so conveyed
«4»ch estate that by law the deeds or conveyances are void as iigainst
creditors, the executor or administrator must commence and prose-
cute to final judgment any proper action for the recovery of the same;
and may recover for the benefit of the creditors all such real estate so
fraudulently conveyed; and may also, for the benefit of the creditors,
sue and recover all goods, chattels, rights, or credits which have been
so conveyed by the decedent in his lifetime, whatever may have been
the manner of such fraudulent conveyance.

^ 219. Creditors may require same.] No executor or administrator
is bound to sue for such estate as mentioned in the preceding section,
for the benefit of the creditors, unless oni application of creditors, who
must pay such part of the costs and expenses of the suit, or give such
security therefor to the executor or administrator, as the judge shall
direct.

§ 220. Sale of such realty.] All real estate so recovered must be
sold for the payment of debts, in the same manner as if the decedent
had died seized thereof, upon obtaining an order therefor from the
probate court; and the proceeds of all goods, chattels, rights, and
^ iTedits so recovered must be appropriated in pajrment of the debts

of the decedent, in the same manner as other property in the hands
.of the executor or administrator.

644 Administratobs. Probate Code^

CHAPTER IX.

OF THE CONVEYANCE OF REAL ESTATE BY EXECUT0R8 AND ADMINISTRA-
TORS IN CERTAIN CASES.

§ 221. Deeds by decedent's contract.] When a person who is
bound by contract in writing to convey any real estate dies before
making the conveyance, and in all cases when such decedent, if living,
miffht be compelled to make such conveyance, the probate court may
make a decree authorizing and directing his executor or administrator
to convey such real estate to the person entitled thereto.

§ 222. Petition for and notice.] On the presentation of a verified
petition by any person claiming to be entitled to such conveyance from
an executor or administrator, setting forth the facts upon which the
claim is predicted, the probate judge must appoint a time and place
for hearing the petition, at a regular term of courts and must order
notice thereof to be published at least four successive weeks before
such hearing, in such newspaper in this territory as he may designate.

§ 223. Hearing.] At the time and place appointed for the hearing,
or at such other time to which the same may be postponed, upon satis-
factory proof, by aflBdavit or otherwise, of the due publication of the
notice, the court must proceed to a heariYig, and all persons interested
in the estate may appear and contest such petition, by filing their ob-
jections in writing, and the court may examine, on oath, the petitioner
and all who may be produced before him for that purpose.

§ 224. Decree.] If, after a full hearing upon the petition and
objections, and examination of the facts and circumstances of the
claim, the court is satisfied that the petitioner is entitled to a convey-
ance of the real estate described in the petition, a decree authorizing
and directing the executor or administrator to execute a conveyance-
thereof to the petitioner must be made, entered on the minutes of the
court, and recorded.

§ 225. Deed and record — effect.] The executor or administrator
must execute the conveyance according to the directions of the decree,
a certified copy of which must^be recorded with the deed in the office
of the reeister of deeds of the county where the lands lie, and is prima
facie evidence of the coiTCctness of the proceedings and of the authority
of the executor or administrator to make the conveyance.

§ 226. Dismissal and appeal.] If, upon hearing ' in the probate
court, as hereinbefore provided, the right of the petitioner to have a
specific performance of the contract is found to be doubtful, the court
must dismiss the petition without prejudice to the rights of the
petitioner, who may, at any time within six months thereafter, proceed
in the district court to enforce a specific performance thereof.

§ 227. Effect of conveyance.] Every conveyance made in pursu-
ance of a decree of the probate court, as provided in this chapter, shall
pass the title to the estate contracted for as fully as if the contracting
party himself was still living and executed the conveyance.

§ 228. Decree gives possession.] A copy of the decree for a convey-
ance, made by the probate court, and duly certified and recorded in the
office of the register of deeds of the county where the lands lie, gives the

Probate Code. Administrators. 645

person entitled to the conveyance a right to the possession of the lands
contracted for, and to hold the same according to the terms of the
conveyance, in like manner as if they had been conveyed in pursuance
of the decree.

{5 229. Enforcing decree.] The recording of any decree, as pro-
vided in the preceding section, shall not prevent the court making the
-decree from enforcing the same by other process.

§ 230. Death of claimant.] If the person entitled t6 the convey-
ance die before the commencement of proceedings therefor under this
chapter, or before the completion 01 the conveyance, any person
entitled to succeed to his rights in the contract, or the executor or
administrator of such decedent may, for the benefit of the person so
entitled, commence such proceedings, or prosecute any already com-
menced, and the conveyance must be so made as to vest the estate in
the persons entitled to it, or in the executor or administrator, for their
benefit.

§ 231. Surrender ordered by decree.] The decree provided for
in this chapter may direct the possession of the property therein
described to be surrendered to the person entitled thereto, upon his
producing the deed, and a certified copy of the decree, when, by the
terms of the contract, possession is to be surrendered.

CHAPTER X.

OF ACCOUNTS RENDERED BY EXECUTORS AND ADMINISTRATORS, AND OF

THE PAYMENT OF DEBTS.

Article I. — Liabilities and Compensation of Executors and Admin-
istrators.

§ 232. Requisites op contract by representative.] No executor
>or administrator is chargeable upon any special promise to answer
damages, or to pay the debts of the testator or intestate out of his
own estate, unless the a^eement for that purpose, or some memoran-
dum or note thereof, is in writing and signed by such executor
or administrator, or by some other person by him thereunto specially
authorized.

§ 233. With whatproperty charged.] , Every executor and admin-
istrator is chargeable in his account with the whole of the estate of
the decedent which may come into his possession, at the value of the
appraisement contained in the inventory, except as provided in the
following sections, and with all the interest, profit, and income of
such estate.

§ 234. Neither profit nor loss.] He shall not make profit by the
increase, nor suffer loss by the decrease or destruction, without his
fault, of any part of the estate. He must account for the excess when
he sells any part of the estate for more than the appraisement, and if
^ny part be sold for less than the appraisement, he is not responsible
for the loss, if the sale has been justly made.

646 Administrators. Probate Code^

§ 235. Uncollected debts.] No executor or administrator is
accountable for any debts due to the decedent, if it appears that they
remain uncollected without his fault.

§ 236. Pay for services and expenses.] He shall be allowed all
necessary expenses in the care, management, and settlement of the
estate, and for his services such fees as are provided in this chapter;
but when the decedent, by his will, makes some other provision for
the compensation of his executor, that shall be a full compensation
for his services, unless by a written instrument, tiled in the probata
court, he renounces all claim for compensation provided by the will.

§ 237. Not purchase claims.] No administrator or executor shall
purchase any cjaim against the estate he represents; and if he pays any
claim for less than its nominal value, he is only entitled to charge in
his account the amount he actually paid.

§ 238. Fees and commissions.] When no compensation is provided
by the will, or the executor renounces all claim thereto, he must be
allowed commissions upon the amount of the whole estate accounted
for by him, excluding all property not ranked as assets, as follows:
For the first thousand dollars, at the rate of five per cent.; for all
above that sum, and not exceeding five thousand dollars, at the rate of
four per cent.; for all above that sum, at the rate of two and one-
half per cent. ; and the same commission must be allowed adminis-
trators. In all cases such further allowance may be made as the
probate judge may deem just and reasonable, for any extraordinaiy
service. The total amount of such allowance must not exceed the
amount of commissions allowed by this section^

Article II.— Accounting and Settlement by Executors and Admin-
istrators.

§ 289. Full statement.] At the third term of the court after his
appointment, and thereafter at any time when required by the court,
either upon its own motion or upon the application of any person
interested in the estate, the executor or administrator must rend!ei\ for
the information of the court, an exhibit under oath, showing the
amount of money received and expended by him, the amount of all
claims presented against the estate and the names of the claimants,,
and all other matters necessary to show the condition of its affairs.

§ 240. Citation upon failure.] If the executor or administrator
fail to render an exhibit at the third term of the court, the judge of
the probate court must issue a citation requiring him to appear and
render it.

§ 241. Petition for by third person.] Any person interested ia
the estate may, at any time before the final settlement of accounts^
present his petition to the probate judge, praying that the executor ol-
administrator be required 'to appear and render such exhibit, setting
forth the facts showmg that it is necessary and proper that such an
exhibit should be made.

§ 242. Action upon same.] If the judge be satisfied, either from-
the oath of the applicant or from any other testimonv offered, that
the facts alleged are true, and considers the showing oi the applicant
suflBcient, he must issue a citation to the executor or administrator,.

Probate Code. Administrators. 647

requiring him to appear at some day named in the citation, which
must be during a term of the court, and render an exhibit as prayed
for.

§ 243. Contest of exhibit.] When an exhibit is rendered by an
executor or administrator, any person interested may appear and, by
objections in writing, contest any account or statement therein con-
tained. The court may examine the executor or administrator, and if
he has been guilty of neglect, or has wasted, embezzled, or misman-
aged the estate, his letters must be revoked. ,

§ 244. Compulsory attendance.] If any executor or adminis-
trator neglects or refuses to appear and render an exhibit, after
having been duly cited, an attachment may be issued against him and
such exhibit enforced, or his letters may be revoked, in the discretion
of the court.

§ 245. Full account in one year.] Every executor or adminis-
trator must render a full account and a report of his administration
at the expiration of one year from the time of his appointment.
If he fail to present his account, the court must compel the rendering
of the account by attachment, and any person interested in the estate
may apply for and obtain an attachment, but no attachment must
issue unless a citation has been first issued, served, and returned,
requiring the executor or administrator to appear and show cause why
an attachment should not issue. Every account rendered must
exhibit not only the debts which have been paid, but also a statement
of all the debts which have been duly presented and allowed during
the period embraced in the account.

§ 246. Account to successor.] When the authority of an executor
or administrator ceases or is revoked for any reason, he may be cited
to account before the probate court at the instance of the person
succeeding to the administration of the same estate, in like manner
as he might have been cited by any person interested in the estate
durine the time he was executor or administrator.

§ 247. Revocation.] If the executor or administrator resides out
of the county, or absconds, or conceals himself, so that the citation
cannot be personally served, and neglects to render an account within
thirty days after the time prescribed in this article, or if he neglects
to render an account within thirty days after being committed where
the attachment has been executed, his letters must be revoked.

§ 248. Vouchers to account.] In rendering his account, the
executor or administrator must produce and file vouchers for all
charges, debts, claims, and expenses which he has paid, which must
remain in the court; and he may be examined on oath touching such
payments, and also touching any property and effects of the decedent,
and the disposition thereof. When any voucher is required for other
purposes, it may be withdrawn on leaving a certified copy on file : if
a voucher is lost, or for other good reason cannot be produced on the
settlement, the payment may be proved by the oath oi any competent
witness.

§ 249. Items without vouchers.] On the settlement of his account
he may be allowed any item of expenditure, not exceeding fifteen
dollars, for which no voucher is produced, if such item 'be supported
by his own uncontradicted oath, reduced to writing, and certified by

648 Administbators. Probate Code.

m

the judge, positive to the fact of payment, specifying when, where,
and to whom it was made; but such allowances in the whole must not
exceed three hundred dollars against any one estate, nor over ten per
cent, of the inventory appraised value of any estate under three
thousand dollars.

§ 250. Notice for settlement.] When any account is rendered for
settlement, the court or judge must appoint a day for the settlement
thereof; the judge must thereupon give notice thereof, by causing
notices to be posted in at least three public places in the county,
settine forth the name of the estate, the executor or administrator,
and tne day appointed for the settlement of the account, which must
•be on some day of a term of the court. The court or judge may order
such further notice to be given as may be proper.

§ 251. Requisites for notice of final settlement.] If the account
mentioned in the preceding section be for a nnal settlement,
and the estate be ready for distribution, the notice of the settlement
must state these facts, and must be served, published or waived in the
same manner as provided for sales of real property and interests
therein; .and on confirmation of the final account, distribution and
partition of the estate to all entitled thereto may be immediately had
without further notice or proceedings. If, from any cause, the hear-
inff of the account, or the partition and distribution be postponed, the
order postponing the same to a day certain is notice to all persons
interested therein.

§ 252. Exceptions to account.] On the day appointed, or any sub-
sequent day to which the hearing may be postponed by the courts any
person interested in the estate may appear and file his exceptions in
writing to the account, and contest tne same.

§ 253. What heirs may contest — hearing.] All matters, including
allowed claims not passed upon on the settlement of any former
account, or on rendering an elhibit, or on making a decree of sale,
may be contested by the heirs, for cause shown. The hearing and
allegations of the respective parties may be postponed from time to
time, when necessary, and thfe court may appoint one or more referees
to examine the accounts and make report thereon, subject to confirm-
ation; and may allow a reasonable compensation to the referees, to
be paid out of the estate of the decedent.

§ 254. Effect of allowance.] The settlement of the account and
the allowance thereof by the court, or upon appeal, is conclusive
against all persons in any way interested in the estate, saving, how-
ever, to all persons laboring under any legal disability, their right to
move for cause to reopen and examine the account, or to proceed by
action against the executor or administrator, either individually or
upon his bond, at any time before final distribution ; and in any action
brought by any such person, the allowance and settlement of such
account is prima facie evidence of its correctness.

§ 255. Froof of notice — decree.] The account must not be
allowed by the court until it is first proved that notice has been given
as required by this chapter, and the decree must show that such proof
was made to the satisfaction of the court, and is conclusive evidence
of the fact.

Probate Code. Abministeatoes. 649

§ 256. Personalty sold when.] Whenever it appears to the court
on any hearing of an application for the sale of real property, that it
would be for the interest of the estate that personal property of the
estate or some part of such property, should be first sold, the court
may decree the sale of such personal property, or any part of it, and
the sale thereof shall be conducted in the same manner as if the
application had been made for the sale of such personal property in
the fii'st instance.

§ 257. Investments op funds.] Pending the settlement of any
estate on the petition of any party interested therein, the probate
court may order any moneys in the hands of the executor or adminis-
trators, to be invested for the benefit of the estate, in securities of the
United States. Such order can only be made after publication of notice of
the petition in some newspaper to be designated by the judge.

Article III.— The Payment of Debts of the Estate.

§ 258. Order of payment.] The debts of the estate must be paid in
the following order:

1. Funeral expenses.

2. The expenses of the last sickness.

3. Debts having preference by the laws of the United States.

4. Judgments rendered against the decedent in his lifetime, and
mortgages, in the order of their date.

5. All other demands against the estate.

§ 259. Limit as to mortgage.] The preference given in the preced-
ing section to a mortgage only extends to the proceeds of the property
mortgaged. If the proceeds of such property be insufficient to pay the
mortgage, the part remaining unsatisfied must be classed witn other
demands against the estate.

§ 260. Equal within classes.] If the estate be insufficient to pay
all the debts of any one class, each creditor must be paid a dividena in
proportion to his claim ; and no creditor of any class shall receive any
payment until all those of the preceding class are fully paid.

§ 261. When certain expenses paid.] The executor or adminis-
trator, as soon as he has sufficient funds in his hands, must pay the
funeral expenses, and the expenses of the last sickness, and the allow-
ance made to the family of the decedent. He may retain in his hands
the necessary e^cpenses of administration, but he is not obliged to pay
any other debt or any legacy until, as prescribed in this article, the
payment has been ordered by the court.

§ 262. Order for payment op debts.] Upon the settlement of the
accounts of the executor or administrator, at the end of the year, as
required in this chapter, the court must make an order for the pay-
ment of the debts, as the circumstances of the estate require. If there
be not sufficient funds in the hands of the executor or administrator,
the court must specify in the decree the sum to be paid to each
creditor. If the wnole assets of the estate be exhausted by such pay-
ment or distribution, such account must be considered as a nnal
account, and the executor or administrator is entitled to his dischai^e,
on producing and filing the necessary vouchers and proofs showing

650 ADMijasTBATOES. Probate Code,

that such payments have been made, and that he has fully complied
with the decree of the court.

§ 263. Advance payments — solvency.] If there is any claim not due,
or any contingent or disputed claim against the estate, the amount
thereof, or such part of the same as the holder would be entitled to if
the claim were due, established or absolute, must be paid into the
court., and there remain, to be paid over to the party when he becomefj
entitled thereto ; or, if he fails to establish his claim, to be paid over or
distributed as the circumstances of the estate require. If any creditor
whose claim has been allowed, but is not yet due, appears and assents to
a deduction therefrom of the le^al interest for the time the claim has
yet to run, he is entitled to be paid accordingly. The payments provided
for in this section are not to be made when the estate is insolvent,
unless a pro rata distribution is ordered.

§ 264. Liable for debts ordered paid.] When a decree is made
by the probate court . for the payment of creditors, the executor or
administrator is personally liable to each creditor for his allowed
claim, or the dividend thereon, and execution may be issued on such
decrees, as upon judgment in the district court, in favor of each credi-
tor, and the same proceeding m*ay be had under such execution as if
it had been issued from the district court. The executor or adminis-
trator is liable therefor, on his bond, to each creditor.-

§ 265. Other liability.] When the accounts of the administrator
or executor have been settled, and an order made for the payrnent of
debts and distribution of the estate, no creditor whose claim was
not included in the order for payment has any right to call upon the
creditors who have been paid, or upon the heirs, devisees, or legatees,
to contribute to the payment of his claim; but if the executor or
administrator has failed to give the notice to creditors as required in
the first and second sections of chapter VI, such creditor may recover
on the bond of the executor or administrator the amount of his claim,
or such part thereof as he would have been entitled to had it been
allowed. This section shall not apply to any creditor whose claim
was not due ten months before the day of settlement, or whose claim
was contingent and did not become absolute ten months before such
day.

i 266. Extension of time.] If the whole of the debts have been
paid by the first distribution, the court must direct the payment of
legacies and the distribution of the estate among the heirs, legatees,
or other persons entitled as provided in the next chapter; but if there
be debts remaining unpaid, or if, for other reasons, the estate be not
in a proper condition to be closed, the court must give such extension
of time as may be reasonable for a final settlement of the estate.

§ 267. Final account and settlement.] At the time designated ir.
the last section, or sooner, if within that time all the property of the
estate has been sold, or there are sufficient funds in his hands for the
payment of all debts due by the estate, and the estate be in a proper
condition to be closed, the executor or administrator must render a
final account, and pray a settlement of his administrator.

§ '268. Provisions applying to.] If he neglect to render his account,
the same proceedings may be had as prescribed in this chapter in
regard to the first account to be rendered by him; and all the provis-

Probate Code. Administrators. 651

ions of this chapter relative to the last mentioned account, and the
notice and settlement thereof, apply to his account presented for
final settlem^t.

CHAPTER XL

OF THE PARTITION, DISTRIBUTION, AND FINAL SETTLEMENT OF ESTATES.

Article I. Partial Distribution Prior to Final Settlement.

' § 269. Petition for legacy or share.) At any time after the lapse
of four months from the issuing of letters testamentary or of adminis-
tration, any heir, devisee, or legatee may present his petition to the
court for the legacy or share of the CvState to which he is entitled, to
be given to him upon his giving bond, with security, for the payment
of his proportion of the debts of the estate.

^ 270. Notice to representative.] Notice of the application must
be given to the executor or administrator, personally, and to all per-
sons interested in the estate, in the same manner that notice is
required to be given of the settlement of the account of an executor
or administrator.

§ 271. Who may resist.] The executor or administrator, or any
person interested in the estat.e, may appear at the time named and
resist the application, or any other heir, devisee or legatee may make
a similar application for himself

§272. When petition allowed- conditions partition.] If at
the hearing it appears that the estate is but little indebted, and that
the share of the party applying may be allowed to him without loss to
the creditors of the estate, the court must make an order in conformity
with the prayer of the applicant, requiring:

1. Each heir, legatee or devisee obtaining such order, before receiv-
ing his share or any portion thereof, to execute and deliver to the
executor or administrator a bond, in such sum as shall be designated
by the probate judge, with sureties to *be approved by the judge,
payable to the executor or administrator, and conditioned for the
payment, whenever required, of his proportion of the debts due from
the estate, not exceeding the value or amount of the legacy or portion
of the estate to which he is entitled.

2. The executor or administrator to deliver to the heir, legatee, or
devisee the whole portion of the estate to which he may be entitled,
or only a part thereof, designating it.

If, in the execution of the oi-der, a partition is necessary between
two or more of the parties interested, it must be made in the manner
hereinafter prescribed. The costs of these proceedings to be paid by
the applicant, or if there be more than one, to be apportioned ecjually
amongst them.

§ 273. Assessment against legatee or devisee.] When any bond
has been executed and delivered, under the provisions of the preceding
section, and it is necessary for the settlement •of the estate to require
the payment of any part of the money thereby secured, the executor
or aaministrator must petition the court for an order requiring the

660 ADMiiasTRATORS. Probate Code.

that such payments have been made, and that he has fully complied
with the decree of the court.

§ 263. Advance payments — solvency.] If there is any claim not due,
or any contingent or disputed claim against the estate, the amount
thereof^ or such part of the same as the holder would be entitled to if
the claim were due, established or absolute, must be paid into the
court, and there remain, to be paid over to the party when he becomes
entitled thereto; or, if he fails to establish his claim, to be paid over or
distributed as the circumstances of the estate require. If any creditor
whose claim has been allowed, but is not yet due, appears and assents to
a deduction therefrom of the le^al interest for the time the claim has
yet to run, he is entitled to be paid accordingly. The payments provided
for in this section are not to be made when the estate is insolvent,
unless a pro rata distribution is ordered.

§ 264. Liable for debts ordered paid.] When a decree is made
by the probate court . for the payment of creditors, the executor or
administrator is personally liable to each creditor for his allowed
claim, or the diviaend thereon, and execution may be issued on such
decrees, as upon judgment in the district court, in favor of each credi-
tor, and the same proceeding m*ay be had under such execution as if
it had been issued from the district court. The executor or adminis-
trator is liable therefor, on his bond, to each creditor.-

§ 265. Other liability.] When the accounts of the administrator
or executor have been settled, and an order made for the payment of
debts and distribution of the estate, no creditor whose claim was
not included in the order for payment has any right to call upon the
creditors who have been paid, or upon the heirs, devisees, or legatees,
to contribute to the payment of his claim; but if the executor or
administrator has failed to give the notice to creditors as required in
the first and second sections of chapter VI, such creditor may recover
on the bond of the executor or administrator the amount of his claim,
or such part thereof as he would have been entitled to had it been
allowed. This section shall not apply to any creditor whose claim
was not due ten months before the day of settlement, or whose claim
was contingent and did not become absolute ten months before such
day.

I 266. Extension of time.] If the whole of the debts have been
paid by the first distribution, the court must direct the payment of
legacies and the distribution of the estate among the heirs, legatees,
or other persons entitled as provided in the next chapter; but if there
be debts remaining unpaid, or if, for other reasons, the estate be not
in a proper condition to be closed, the court must give such extension
of time as may be reasonable for a final settlement of the estate.

§ 267. Final account and settlement.] At the time designated in
the last section, or sooner, if within that time all the property of the
estate has been sold, or there are sufficient funds in his hands for the
payment of all debts due by the estate, and the estate be in a proper
condition to be closed, the executor or administrator must render a
final account, and pray a settlement of his administrator.

§ '268. Provisions applying to.] If he neglect to render his account^
the same proceedings may be had as prescribed in this chapter in
regard to the first account to be rendered by him; and all the pro vis-

Probate Codti. Administrators. 651

ions of this chapter relative to the last mentioned account, and the
notice and settlement thereof, apply to his account presented for
final settlem^t.

CHAPTER XL

OF THE PARTITION, DISTRIBUTION, AND FINAL SETTLEMENT OF ESTATES.

Article I. Partial Distribution Prior to Final Settlement.

' § 269. Petition for legacy or share.] At any time after the lapse
of four months from the issuing of letters testamentary or of adminis-
tration, any heir, devisee, or legatee may present his petition to the
court for the legacy or share of the estate t^o which he is entitled, to
be given to him upon his giving bond, with security, for the payment
of his proportion of the debts of the estate. ^

^ 270. Notice to representative.] Notice of the application must
be given to the exe(*utor or administrator, personally, and to all per-
sons interested in the estate, in the same manner that notice is
required to be given of the settlement of the account of an executor
or administi^ator.

§ 271. Who may resist.] The executor or administrator, or any
person interested in the estate, may appear at the time named and
resist the application, or any other heir, devisee or legatee may make
a similar application for himself.

§ 272. When petition allowed conditions partition.] Tf at
the hearing it appears that the estate is but little indebted, and that
the share of the party applying may be allowed to him without loss to
the creditors of the estate, the court must make an order in conformity
with the prayer of the applicant, recjuiring:

1. Each heir, legatee or devisee obtaining such order, before receiv-
ing his share or any portion thereof, to execute and deliver to the
executor or administrator a bond, in such sum as shall be designated
by the probate judge, with sureties to be approved by the judge,
payable to the executor or administi'ator, and conditioned for tbe
payment, whenever required, of his proportion of the debts due from
the estate, not exceeding the value or amount of the legacy or portion
of the estate to which he is entitled.

2. The executor or administrator to deliver to the heir, legatee, or
devisee the whole portion of the estate to which he may be entitled,
or only a part thereof, designating it.

If, in the execution of the order, a paitition is necessary between
two or more of the jmrties interested, it must be made in the manner
hereinafter prescribed. The costs of these proceedings to be paid by
the applicant, or if there be more than one, to be apportioned equally
amongst them.

§ 278. Assessment against legatee or devisee.] When any bond
has been executed and delivered, under the provisions of the preceding
section, and it is necessary for the settlement *of the estate to require
the payment of any part of the money thereby secured, the executor
or administrator must petition the court for an order requiring the

€52 Administrators. Probate Code.

payment, and have a citation issued and served on the party bound,
requiring him to appear and show cause why the order should not be
made. At the hearing, the court, if satisfied of the ne^ssity of such
payment, must make an order accordingly, designating the amount
and giving a time within which it must be paid. If the money be not
paid within the time allowed, an action may be maintained by the
executor or administrator on the bond.

•

Article II. Distribution and Final Settlembnt,

§ 274. Court distributes— deceased heir -settlement.] Upon the
final settlement of the accounts of the executor or administrator or kt
any subsequent time, upon the application of the executor or adminis-
trator, or of any heir, legatee, or devisee, the court must proceed to
distribute the residue of the estate in the hands of the executor or
administrator, if any, am one the persons who by law are entitled
thereto, and if the decedent has left a surviving child, and the issue
of other children, and any of them, before the close of administration,
have died while under age and not having been manied, no adminis-
tration on such deceased child was entitled to b^^ inheritance, must,
without administration, be distributed to the other heirs at law. A
statement of any receipts and disbursements of the executor or admin-
istrator, since the rendition of his final accounts, must be reported and
filed at the time of making such distribution, and a settlement thereof^
together with an estimate of the expenses of closing the estate, must
be mfide by the court and included in the order or decree; or the court
or judge may order notice of the settlement of such supplementary
account, and refer the same as in other cases of the settlement of
accounts.

§ 275. Decree of distribution — contents — effect.) In the order
or decree, the court must name the persons and the proportions or
paints to which each shall be entitled, and such persons may demand,
sue for^ and recover their respective shares from the executor or
administrator, or any person having the same in possession. Such
order or decree is conclusive as to the rights of heirs, legatees, or
devisees, subject only to be reversed, set aside, or modified on appeal.

§ 276. Delivery to executor under foreign will.] Upon applica-
tion for distribution, after final settlement of the accounts of adminis-
tration, if the decedent was a non-resident of this temtory, leaving a
will which has been duly proved or allowed in the state, territory or dis-
trict of his residence, ana an authenticatedcopy thereof has been admit-
ted to probate in this territory, and it is necessary, in order that the
estate or any\)art thereof may be distributed according to the will, that
the estate in tnis territory should be delivered to the executor or admin-
istrator in the estate or place of his residence, the court mav order
such delivery to be made, and, if necessary, order a sale of the real
estate, and a like delivery of the proceeds. The delivery, in accord-
ance with the order of the court, is a full discharge of the executor
or administrator with the will annexed in this territory, in relation
to all property embraced in such order, which, unless reversed on
appeal, binds and concludes all parties in interest. Sales of real
estete, ordered by virtue of this section, must be made in the same

Probate Code, Administrators. 655

manner as other sales of real estate of decedents by order of the
probate court.

§ 277. Petition and notice for decree.] The order or decree may
be made on the petition of the executor or administrator, or of any
person interested in the estate. Notice of the application must be
^ven by posting or publication, as the court may direct, and for such
tiirie as may be ordered. If partition be applied for, as provided
in this chapter, the decree of distribution shall not divest the
court of jurisdiction to order partition, unless the estate is finally
closed.

§ 278. Taxes paid before decree.] Before any decree of distribu-
tion of an estate is made, the probate court must be satisfied, by the
oath of the executor or administrator, or otherwise, that all territorial,
county, school, and municipal taxes, legally levied upon personal
property of the estate, have been fully paid.

Article III. — Distribution and Partition.

§ 279. Partition by three commissioners.] When the estate, real
or personal, assigned by the decree of distribution to two or more
heirs, devisees, or legatees, is in common and undivided, and the
respective shares are not separated and distinguished, partition or
distribution may be made by three disinterested persons, to be
appointed commissioners for that purpose by the probate court or
judger, who must be duly sworn to the faithful discharge of their duties.
A certified copy of the order of their appointment, and of the order
or decree assigning and distributing tlie estate, must be issued to
them as their warrant, and their oath must be indorsed thereon.
Upon consent of the parties, or when the court deems it proper and
just, it is sufficient to appoint one commissioner only, who has the
same authority, and is governed by the same rules as if three were
appointed.

§ 280. Petition for and notice.] Such partition may be ordered
and had in the probate court, on the petition of any person interested.
But before commissioners are appointed, or partition ordered by the
probate court, as directed in this subdivision, notice thereof must be
given to all persons interested, who reside in this territory, or theii*
guardians, and to the agents, attorneys, or guardians, if any, in this
territory, of such as reside out of the territory, either pei'sonally or bj"-
public notice, as the probate court may direct. The petition may be
filed, attorneys, guardians, and agents appointed, and notice given, at
any time before the order or decree of distribution, but the commis-
sioners must not be appointed until the order or decree is made
distributing the estate.

§ 281. Realty in different counties.] If the real estate is in
difterent counties, the probate court may, if deemed proper, appoint
commissioners for all, or different commissioners for each county.
The whole estate, whether in one or more counties, shall be divided
amouR the heirs, devisees, or legatees as if it were all in one county,
and the commissioners must, unless otherwise directed by the probate
court, make division of such real estate, wherever situated within this
territory.

654 Administrators. Probata Code.

% 282. When part conveyed.] Partition or distribution of the
real estate may be made as provided in this chapter, although some of
the original heirs, legatees, or devisees may have conveyed their shares
to other persons, and such shares must be assigned to the person
holding the same, in the same manner as they otherwise would have
been to such heirs, legatees, or devisees.

§ 283. How SHAR1ES SET APART.] When both distribution and
partition are made, the several shares in the real and personal
estate must be set out to each individual in proportion to his
right, by metes and bounds, or description, so that the same can be
distinguished, unless two or more of the parties interested consent to
have their shares set out so a,s to be held bv them in common and
undivided.

§284. Joint SHARES PREFERENCES DIFFERENCE p^iD.] When the
real estate cannot be divided without prejudice or inconvenience to
the owners, the probate court may assif^n the whole to one or more of
the parties entitled to shares therein, who will accept it, always pre-
ferring the males to the 'females, and among children preferring the
elder to the younger. The parties accepting the whole must pay to
the other parties interested their j ust proportion of the true value
thereof, or secure the same to their satisfaction, or, in case of the
minority of such party, then to the satisfaction of his guardian, and
the true value of the estate must be ascertained and reported by
the commissioners. When the commissioners appointed to make
partition are of the opinion that the real estate cannot be divided
without prejudice or inconvenience to the owners, they must so
report to court, and recommend that the whole be assigned as herein
rovided, and must find and report the true value of such real estate.

11 filing the report of the commissioners, and on making or securing
the payment as before provided, the court, if it appeal's just and
proper, must confirm the report, and thereupon the assignment is
complete, and the title to the whole of such real estate vests in the
person to whom the same is so assigned.

^ 2Si). Whole to one party excess paid.] When any tract of
land or tenement is of greater value than any one's share in the estate
to be divided, and cannot be divided without injury to the same, it
may be set off by the commissioners appointed to make partition to
any of the parties who will accept it, giving preference as prescribed
in the pi-eceding section. The party accepting must pay or secure to
the others such sums as the commissioners shall award to make the
partition equal, and the commissioners must make their award accord-
ingly; but such partition must not be established by the court until
the sums awarded are paid to the parties entitled to the same, or
secured to their satisfaction.

§ 286. Sale op whole.] When it appears to the court, from the
^commissioners' report, that it cannot be otherwise fairly divided, and
should be sold, the court may order the sale of the whole or any part
of the estate, real or personal, by the executor or administrator, or by
a commission appointed for that purpose, and the proceeds distrib-
uted. The sale must be conducted, reported, and confirmed in the
.same manner, and under the same requirements as provided in article
III, chapter VII of this title.

s

Probate Code. Administrators. 655

§ 287. Notice to all before partition.] Before any partition is
made, or any estate divided, as provided in this chapter, notice must
be given to all persons interested in the partition, their guardians,
argents, or attorneys, by the commissioners, of the time and place
wlien and where they shall proceed to make partition. The commis-
sioners may take testimony, order surveys, and take such other steps as
may be necessary, to enable them to form a judgment upon the mat-
ters before them.

§ 288. Report by commissioners — confirmation — record.] The
commissioners must report their proceedings an^ the partition agreed
upon by them, to the probate court, in writing, and the court may, for
sufficient reasons, set aside the report and commit the same to the
same commissioners, or appoint others; and when such report is
finally confirmed, a certified copy of the judgment or decree of
partition made thereon, attested by the judge, under the seal of the
court,* must be recorded in the office of the register of deeds of the
county where the lands lie. ^

§ 289. Residue assigned.] When the probate court makes a judg-
ment or decree assigning the residue of any estate to one or more
persons entitled to the same, it is not necessary to appoint commis-
ijioners to make partition or distribution thereof, unless the parties to
whom the assignment is decreed, or some of them, request that such
partition be made.

§ 290. . Advancements- contents of decree.] AU questions as to
advancements made, or alleged to have been made, by the decedent to
his heirs, may be heard and determined by the probate cx)urt, and
must be specified in the decree assigning and distributing the estate;
and the final judgment or decree of the probate court, or m case of an
appeal, of the district court or supreme court, is binding on all parties
interested in the estate.

Article IV. Agents for Absent Parties —Discharge of Executor

OR Administrator.

§ 291. Agent for non-resident.] When any estate is assigned or dis-
tributed by a judgment or decree of the probate court, to any person
residing out of and having no agent in this ten-itory. and it is neces-
sary that some person should he authorized to take possession and
charge of the same for the benefit of such absent i>ersou, the court
may appoint an agent for that purpose, and authorize him to take
charge of such estate as well as to act for such absent person in the
distribution.

g 292. Bond by agent -pay.] The agent must tirnt give a bond to the
probate judge, to be approved by him. conditioned that he shall
faithfully manage and account for the estate. The court appoint-
ing such agent may allow a reasonable sum out of the profits of the
estate for his services and expenses.

g 293. Sale of such property.] When personal property remains
in the hands of the agent unclaimed for a year, and it appears to the
court that it is for the benefit of those interested, it snail be sold
under the order of the court, and the proceeds, after deducting the
expenses of the sale allowed by the court, must be paid into the terri-

666 - Administrators. Probate Code.

torial treasury. When the payment is made, the agent must take from
the treasury duplicate receipts, one of which he must file in the office
of the territorial auditor, and the other in the probate court.

§ 194. Agents account — requisites.] The agent must render to
the probate court appointing him, annually, an account, showing:

1. The value and character of the property received by him, what
portion thereof is still on hand, what sold, and for what.

2. The income derived therefrom.

3. The taxes and assessments imposed thereon, for what, and whether
paid or unpaid. •

4. Expenses incurred in the care, protection, and management
thereof, and whether paid or unpaid.

When filed the probate court may examine witnesses and take
proofs in regard to the account; and if satisfied from such accounte
and proofs that it will be for the benefit and advantage of the persons
interested therein, the court may, by order, direct a sale to be made of
the whole or such parts of the real or personal property as shall appear
to be proper, and tne purchase money to be deposited in the territorial
treasury, to be receipted for and the receipts filed as in like cases
before provided.

§ 295. Liability on bond.] The agent is liable on his bond for the
care and preservation of the. estate while in his hands, and for the
payment of the proceeds of the sale as required in the preceding sec-
tions, and may be sued thereon by any person interested.

§ 296. Claimant for property.] When anj'^ person appears and
claims the money paid into the treasury, the probate court making the
distribution must inquire into such claim, and, being first satisfied of
his right thereto, must grant him a certificate to that efifect, under its
seal; and upon the presentation of the certificate to him the terri-
torial auditor must draw a warrant on the treasurer for the amount.

§ 297. Decree discharging representative.] When the estate has
been fully administered, and it is shown by the executor or adminis-
trator, by the production of satisfactory vouchers, that he has paid all
sums of money due from him, and delivered up, under the order of the
court, all the property of the estate to the parties entitled, and per-
formed all the acts lawfully required of him, the court must make a
judgment or decree discharging him from all liability to be incurred
thereafter.

§ 298. Subsequent property discovered.] The final settlement of
an estate as hereinafter provided, shall not prevent a subsequent issue
of letters testamentary or of administration, or of administration with
the will annexed, if other property of the estate be discovered, or if it
become necessary or proper, for any cause, that letters should be again
issued.

Probate Vo(U. Administratorh. 65t

t ■ 4

CHAPTEE XII.

OF ORDERS, DECREEB, PROCESS, MINUTES, RECORDS, TRIALS, AND APPEALS.

I

Article I. — Orders, Decrees, Process, Minutes, Records, and Trials.

§ 299. Requisites— RECORD.] Oi-ders and decrees made hy the pro-
bate court, ot the jud^e thereof, need not recite the existence of facfe,
or the performance 6i acts upon which the jurisdiction of the court or
judge may depend, hut it sh^u only be necessary that they contain the
matters btdered 6r adjudged, except as otherwise provided in this title.
All orders and decrees of the court or jud^e must be entered at length
in the minute book of the court, and upon the close of each regular or
special term the judge must sign the same.

§ 300. Publication — how.] When any publication is ordered, such
publication mu^^t be made daily or otherwise, as often during the pre-
scribed period as the paper'is regularly issued, uhless otherwise proyided
in this title. The court or judge m^yj hoofer,' order a tess number
of publications during tlie period.

§801. Nof ICE iBlpARTiiD BY RECORDED DtidRiTB.] Wheii' itis provi-dec}
in this title that any order or decree of a probate court or jud^e, or a
copy thereof; rhufet'be Irecorded in the officfe of '.the county 'f*egister pi
deeds, from the tinie of filing the same foi* 'record, notice is imparted
to air pertens of tlje contents thereof^

§ 30a. CriATioNs — ^REQUISITES • OP.] Citati6ris must be directed to
thS person to be cited,' signed by the judge, and Is^tfed under the sfeal
of the court, and,must contain: '

1. The title of the proceeding. ' .

2. A brief statement of the naiture of the piroceeding.

3. A direction that the person cited appear at a time and ^lace
specified. . .

§ 303. Service op.] The citation tnust be served in the same man-
ner as a summons in a civil action.

§ 304. Personal notice.] When a personal notice is required, and
no mode [of] giving it is prescribed in this title, it must be given by
citation.

§ 305. Time op service.] When no other time is specially prescribed
in this title, citations must be served at least five days before the
return day thereof.

§ 806. Description op realty.] When a complete description of
the real property of an estate sought to be sold has been given aiid
published in a newspaper, as required in the order to show cause why
the sale should not be made, such description need not be published in
any subsequent notice of sale, or notice of a petition for the confirma-
tion thereof. It is sufficient to refer to the description contained in
the publication of the first notice, as being provied and on file in the
court.

§ 307. Trials — pindings — judgments — executions.] All issues of
feicts joined in the probate court must be tried by said court, and in
all such proceedings the party affirming is plaintiff', and the one deny-
ing or avoiding is defendant. After the hearing the court shall give,

4«

658 Administrators. Probate Code.

in writing, the findings of facts and conclusions of law. Judgments
thereon, as well as for costs, may be entered and enforced by execution
or otherwise, by the probate court, as in civil actions. If the issues
are not sufficiently made up by the written pleadings on file, the court,
on due notice to the opposite party, must settle and frame the issues
to be tried, and upon wliich the court may render judgment.

§ 308. Attorneys appointed by court.] At or before the hearing
of petitions and contests for the probate of wills: for lettei-s testamen-
tary or of administration; for sales of real estate, and confirmations
thereof; settlements, petitions, and distributions of estates; and all
other proceedings wherA all the parties interested in the estate are
required to be notified thereof, the court may, in its discretion,
appoint some competent attorney at law to represent in all such pro-
ceedings the devisees, legatees, heirs, or creditors of the decadents who
are minors and have no general guardian in the comity, or who are
non-residents of the territory, and those interested, who, though they
are neither such minors or non-residents, are unrepresenteo! The
order must specify the names of the parties for whom the attorney is
appointed, who is thereby authorized to represent such parties in all
such proceedings had subsequent to his appointment. The attorney
may receive a tee to be fixed by the court for his services, which must
be paid out of the funds of the estate as necessary expenses of admin-
istration, and upon distribution may be charged to the party represented
by the attorney. If, for any cause, it becomes neceasary, the pro-
bate court may substitute another attorney for the one first appointed,
in which case the fee must be proportionately divided. The non-
appointment of an attorney will not affect the validity of any of the
proceedings.

§ 309. Decree recorded in register's office,) When a judgment
or decree is made, setting apart and defining the homestead, confirm-
ing a sale, making distribution of real property, or determining any
other matter afiecting the title to real property, a certified copy of the
same must be recorded in the office of the register of deeds of the
county in which the real property is situated.

§ 310. Revocation for contumacy.] Whenever an executor,
administrator, or guardian is committed for contempt, in disobeying
any lawful order of the probate court or the judge thereof, and has
remained in custody for thirty days without obeying such order, or
purging himself otherwise of the contempt, the probate court may, by
order reciting the facts, and without further showing or notice, revoke
his letters and appoint some other person, entitled thereto, executor,
administrator or guardian, in his stead.

J^ 311. Service upon guardian.] Whenever an infant, insane or
incompetent person, has a guardian of his estate residing in this terri-
tory, personal service upon the guardian of any process, notice, or
order of the probate court concerning the estate of a deceased
pei'son, in which the ward is interested, is equivalent to service upon
the ward; and it is the duty of the guardian to attend to the interests
of the ward in the matter. Such guardian may also appear for his
ward, and waive any process, notice, or order to show cause which an
adult or a person of sound mind might do.

Probate Code. Administrators. 659

Article II.-^Of Appeals and fioNDfl.

§ 312. Decisions from which appeals lie.] An appeal may be
taken to the district court from a judgment, decree or order of the
probate court:

1. Granting, or refusing, or revoking letters testamentary or of
administration, or of guardianship.

2. Admitting, or refusing to admit, a will to probate.

3. Against or in favor of the validity of a will, or revoking the
probate thereof.

4. Against or in favor of setting apart property, or making an
allowance for a widow or child.

5. Against or in favor of directing the petition, sale, or conveyance
of real property.

6. Settling an account of an executor or administrator, or guardian.

7. Refusing, allowing, or directing the distribution or partition of
an estate, or any part thereof, or the payment of a debt, claim, legacy,
or distributive share; or,

8. From any other judgment, decree, or order of the probate court,
or of the judge thereof^ affecting a substantial right.

§ 813. Who may appeal.] Any party aggrieved may appeal as
aforesaid, except where the decree or order of which he complains,
was rendered or made upon his default. •

§ 314. Same.] A person interested in the estate or fund affected
by the decree or order, who was not a party to the special proceeding
in which it was made, but who was entitled by law to be heard therein,
upon his. application; or who has acquired, since the decree or order
was made, a right or interest which would have entitled him to be
heard, if it had been previously acquired, may also appeal as pre-
scribed in this article. The facts, which entitle such a person to
appeal, must be shown by an affidavit, which must be filecl with the
notice of appeal.

§ 315. Period in which appeal taken.] An appeal by a party,
or by a person interested who was present at the nearing, must be
taken within ten days, and an appeal by a person interested, who was
not a party and not present at the hearing, within thirty days,
from the date of the judgment, decree, or order appealed from.

§ 316. Appeal how taken] The appeal must be made:

1. By jRling a written notice thereof with the judge of the probate
court stating the judgment, decree, or order appealed from, or some
specific part thereof, and whether the appeal is on a question of law,
or of fact, or of both, and, if of law alone, the particular grounds
upon which the party intends to rely on his appeal ; and,

2. By executing and tiling, within the time limited in the preceding
section, such bond as is required in the following sections. ^

It shall not be necessary to notify or summon the appellee or
respondent to appear in the district court, but such respondent shall
be taken and held to have notice of such appeal in the same manner
as he had notice of the pendency of the proceedings in the probate
court.

§ 317. Bond — ^requisites op.] The appeal bond shall be in such
sum as the judge of the probate court shall require and deem sufficient,

660 Administrators. Probate Code.

with at least two sufficient sureties to be approved by the judge,
conditioned that the appellant will prosecute his appeal with due
diligence to a determination, and will jabide, fulfill, and perform
whatever judgment, decree, or order may be rendered against him in
that proceeding by the district court, and that he will pay all dam-
ages which the opposite party may sustain by reason of such appeal,
together with all costs that may be adjudged against him.

1 318. Stay— BFFBOT of appeal.] If the judgment, decree, or order
appealed from be for, or direct, the payment of money, or the delivery
of any property, or grant leave to issue an execution, the appeal shall
not stay the execution thereof, unless the appeal bond be furthermore
conditioned to the effect that if the judgment, decree, or order, or any
part thereof be affirmed, or the appeal be dismissed, iJie appellant shall
pay the sum so directed to be paid or "levied, or, as the case may
require, shall deliver the property so directed to be delivered, or the
part thereof as to whicn the judgment, decree, or order shall be
affirmed.

§ 319. Same — bond.] An appeal from any judgment, decree, or
prd^r directing the commitment of any person, does not stay the
execution thereof unless the appeal bond be also to tlie effect that if
the judgment, decree, or order appealed from be affirmed, or the appeal
be dismissed, the appellant shall, within twenty days after such
affirmance or dismissal, surreflder himself in obedience to the judg-
ment, decree, or order, to the custody of the sheriff to whom he was
committed. If the condition of such bond be violated, it may be
prosecuted in the same manner and with the same effect as an admin-
istrator's official bond; and the proceeds of the action must be paid or
distributed^ as directed by the probate court^ to or among the persons
aggrieved, to the extent of the pecuniary injuries sustained by them,
ana the balance, if any, must be paid into the county treasury.

§ 820. Justification by sureties — new bqnd*] The sureties in
every appeal bond must justify in the manner required in article VI
of chapter III of this title; and the respondent may apply to the
appellate court or the judge thereof, upon notice, for an order requiring
the appellant to increase the sum nxed by the judge of the probate
court, or to give additional security; and if the applicant make default
in giving a new bond, pursuant to an order to increase the same, or to
give additional security, the appeal may be dismissed.

§ 321. Form of bond — action upon.] Every appeal bond must be to
the Territory of Dakota; must contain the name and residence of each
of the sureties thereto ; and must be filed in the probate court. The
judge of the probate court may, at any time, in his discretion, make an
order, authorizing any person aggrieve.d to bring an action on the
bond in his own name or in the name of the territorv. When it is
brought in the name of the territory the damages collected must be
paid over td the probate court and therein distributed as justice may
require.

. § 322. Lettbes issub notwithstanding appeal.] An appeal from
a decree or order admitting a will to probate, or granting letters
testamentary, or letters of administration, does not stay the issuing of
letters, where, in the opinion qf the probate judge, manifested by an
entry upon the minutes of the court, the preservation of the estate

Probate Code. Abministb^torb. 661

requires that such letters should issue. But the letters so issued do
not confer power to sell real property by virtue of any provision in
the will, or to pay or satisfy legacies, or to distribute the property of
the decedent among the next of kin, until the final determination of
the appeal.

§ 323. Appeal does not stay — when.] An appeal from a decree or
order revoking probate of a will, letters testamentary, letters of adminis-
tration, or letters of guardianship, or from a decree or order suspend-
ing or removing an executor, administrator, or guardian, or removing
or suspending a testamentary trustee, or a person appointed by the
probate court, or appointing an appraiser of personal property, does
not stay the execution of the decree or order appealed from.

§ 324. Transcript to district court — non-appearance.] The
judge of the probate court niustj within ten days from the tiling of
the notice of appeal and the giving of the required bond, cause a
certified copy thereof, and of the judgment, decree, or order, or specific
part thereof appealed from, and of the minutes, records, papers, and
proceedings in the case, to be transmitted to the clerk of the district
court of the county, or judicial subdivision, to be filed in his office;
and the appeal may be heard and determined at any day thereafter by
said court, at any general, special, or adjourned term; and if the
appellant make no appearance when the case is called for trial, or
otherwise fail to prosecute his appeal, the respondent may, on motion,-
have the appeal aismissed, or may open the record and move for an
affirmance.

§ 325. Parties named — powers of appellate oourt.] The plaiiitifi^
in the probate court shall be the plaintiff in the district court; and •
when the appeal is on questions of law alone, the appellate court' may ;
reverse, affirm, or modify the judgment, decree, or order, or the part
thereof appealed from, and every intermedial order which it is
authorized by law to review, in any respect mentioned in the notice of
appeal, and as to any or all of the parties, and it may order a new
hearing. Upon such appeal, so much of the evidence as may be nec-
essary to explain the grounds, and no more, may be certified into the
appellate court. •

§ 326. Trial de novo of fact by court.] When the appeal - is on
questions of fact, or on questions of both law and fact, the trial in the
district court must be de novo, and shall be conducted in the same
manner as if the case and proceedings had lawfully originated in that
court; and such appellate court has the same power to decide the
questions of fact which the probate court, or juage had; and it may,
in its discretion, as in suits in chancer}^, and with like effect, make an
order for the trial by a jury of any or all the material questions of
fact, arising upon the issues between the parties; and such an order
must state distinctly and plainly the questions of fact to be tried.

§ 327. Neglect of probate record.] If the judge of the probate
court neglect or refuse to make or transmit such certified copies as are
hereinbefore reauired to be transmitted to the clerk of the district
court in cases of appeal, he may be compelled by the district court, by
an order entered upon motion, to do so, and he may be fined as for
contempt for any such neglect or refusal. A certified copy of such

662 Administbatobs. Probate Code.

order may be served upon the probate judge, by the party or his
attorney.

§ 328. Dismissal is afpiemanoe — amendment.] The dismissal of an
appeal by the district court, is in efltect an affirmance of the judgment,
decree or order, appealed from; and when an appellant shall have
given, in good fq,ith, notice of appeal, but omits, through
mistake, to do any other act necessary to perfect the appeal or to stey
proceedings, the appellate court may permit an amendment on such
terms as may be just.

§ 329. Costs — how payable.] Such appellate court may award to
the successful party the costs of the appeal; or it may direct that
such costs abide the event of a new hearing, or of the subsequent
proceedings in the probate court. In either case the costs may be
made payable out of the estate fund, or personally by the unsuccessful
party, as directed by the appellate court; or, if no such direction be
given, as directed by the probate court.

§ 330. Enfobcembnt by pbobate ooubt.] When a judgment, decree,
or order, from which an appeal has been taken, is wholly or partly
affirmed, or is modified by the judgment rendered by the district court
upon such appeal, it must be enforced, to the extent authorized by the
latter judgment, by the probate court, in like manner as if no appeal
therefrom had been taken; and the district court must direct the
proceedings to be remitted for that purpose to the probatie court or
to the judge thereof.

§ 331. Official bonds good on appeal.] When an executor or
administrator who has given an official bond appeals from a judgment,
decree, or order, of the probate court or judge, made in the proceed-
ings had upon the estate of which he is administrator or executor, his
said bond stands in the place of an appeal bond, and the sureties
therein are liable on stich appeal bond,

§ 332. Lawful aotb valid— when.] When the order or decree
appointing an executor, or administrator, or guardian, is reversed on
appeal for error, and not for want of jurisdiction of the court, all
lawful acts in administration upon the estate, performed by such
executor, or admi»istrator, or guardian, if he have qualified, are as
valid as if such order or decree had been affirmed.

Probate Code. Guardian and Ward. 663

CHAPTER XIY.

OF guardian and ward.

Article I. -Guardians of Minors.

§ 333. Of pbrsons and estates.] The probate court of each county,
when it appears necessary or convenient may appoint guardians for
the persons and estates, or either, or both of them, of minors who
have no guardian legally appointed by will, or deed, and who are
inhabitants or residents of the county, or who reside without the ter-
ritory and have estate within the county. Such appointment may
be made on the petition of a relative or other person m behalf of such
minor. Before making the appointment, the jud^e must cause such
notice as hlB deems reasonable to be given to the relatives of the
minor residing in the county, and to any person having care of such
minor.

§ 334, When minor may nominate.) If the minor is under the age
of fourteen years, the probate judge may nominate and appoint
his guardian. If he is above the age of fourteen years he may nomi-
nate his own guardian, who, if approved by the judge, must be
appointed accordingly. And the probate court, in appointing a
guardian, is to be guided by the considerations named in section 127
of the civil code.

§ 335. When judge may appoint.) If the guardian nominated by
the minor be not approved by the judge, or if the minor resides out of
the territory, or if, after being duly cited by the judge, he neglects for
ten days to nominate a suitable person, the judge may nominate and
appoint the guardian, in the same manner as if the minor was under
the age of fourteen years.

§ 336. Minor may appoint. | When a guardian has been appointed
by the court for a minor under the age of fourteen ,years, the minor,
at anjr time after he has attained that age, may appoint his own
guardian, subject to the approval of the probate judge.

§ 337. Father or mother entitled.] The father of the minor, if
living, and in case of his decease, the mother, while she remains
unmarried, being themselves respectively competent to transact their
own business, and not otherwise unsuitable, must be entitled to the
guardianship of the minor.

g 338. Guardian has custody.] If the minor has no father or
mother living competent to have the custody and care of his educa-
tion, the guardian appointed shall have the same.

§ 339. Same until marriage.] Every guardian appointed shall
have the custody and care of the education of the minor, and the care
and management of his estate, until such minor arrives at the age of
majority, or marries, or until the guardian is legally discharged.

§ 340. Bond to minor — requisites — letters — oath.] Before the
order appointing any person guardian under this chapter takes effect,
and before letters issue, the judge must require of such person a bond

664 Guardian and Wabd. Probate Code.

^ *

to the minor, with sufficient sureties, to be approved by the judce, and
in such sum as he shall order, conditioned that the guardian will faith-
fully execute the duties of his trust according to law; and the follow-
ing conditions shall form and constitute a part of every such bond
without being expressed therein :

1. To make an inventory of all the estate, real and personal, of his
ward that comes to his possession or knowledge, and to return the
same within such time as the judge may order.

2. To dispose of and manage the estate according to law, and for
the best interest of the ward, and faithfully to discharge his trust in
relation thereto, and also in relation to the care, custody, and educa-
tion of the ward.

3. To render an account, on oath, of the property, estate and moneys
of the ward in his hands, and all proceeds or interests derived there-
from, and of the .management and disposition of the same, within
three months after his appointment, and at such other times, as the
court directs; and at the expiration of his trust to settle, his accounts
with the probate judge, or with the ward, if he be of full age, or his legal
representatives! and to pay over and' deliver all the estate, moneys,
and effects remaining in his hands, or due from him on such settlement,
to the person who is lawfully* fentitled thereto. :

Upon filing the bond, duly approved, letters of guardianship must
issue to the person -appointed.' In form the letters' of guardianship
must be substantially the same as- letters of administration; and the
oath of the guardian must be endorsed thei'eon that he will perform,
the duties of hid office, a& 8uch guardian, aocording to law.

§ 341. Additional conditions.] When any person is appoiilted
guardian of a minor, tbe^probalie judge may, with the consent of such
person, insert in the. order of» appointment conditions not otherwise
obligatoty,»providiilg for the care, treatment, education, and welfare of
the minor. The performance of such conditions is a part of the duties
of the guardian, for the faithful performance of which he. and the
sureties on his bond are responsible.

§ 342.: :Rboord OF LBTTBRB AND BOND.] All lottors of guardiauship
issued, and all cuardians' bonds executed under the . provisions of this
chapter, withtl^e affidavits and. certificates thereon, must be recorded
by the judge of the probate court having jurisdiction of the persons
and estates of the wards. : • .

§ 843. Extra elxpbnses.] If any minor, having a father living, has
property, the income of which is sufficient for his maintenance and
education in* a manner more expensive than his father can reasonably
afford, regard being had to the situation of the father's family, and to
all the circumstances of the case, the expenses of the education and
maintenance of such minor may be defrayed out of the income of his
own property, in whole or in part, as judged reasonable, and must be
directed by the probate court: and the charges therefor may be
allowed accordingly in the settlement of the accounts of his guardian.

§ 344. Testamentary guardian.] Every testamentary guardian
must give bond and qualify, and has the same po worst and must pei:-
form the same duties in regard to the person and estate of his ward,
as guardians appointed by the probate court, except so far as their

Probate Code. Guaediai^ and Ward. 666

powers and duties are legally modified; enlarged, or. changed by the
will by- which such guardian was appointed.

§ 345. GrUARDiAN AD LITEM.] Nothing contained in this chapter
affects or impairs the power of any court to appoint a guardian to
defend the interests oi any minor interested in any suit or matter
pending therein.

Article II. — Gtuardians of Insane and Incompetent Persons.

§ 346. Petition aKd notice.] When it is represented to the probate
court, upon verified petition of any relative or friend, that any per-
son is insane, or from any cause mentally incompetent to manage his
property, the judge must cause notice to be given to the supposed
insane or incompetent person, of the time and place of hearing the
case, not less than five days before the time so appointed, and such per-
son if able to attend, must be produced before him on the hearing.

§ 347. Hearing — appointment.] If after a full hearing and exam-
ination upon such petition, it appears to the judge of the probate
court that the person in question is incapable of taking care of hiih-
self and managing his property, he must appoint a guardian of his
person and estate, ^witn the powers and duties in this chapter
specified.

§ 348. Powers— BOND.] Every guardian, appointed as provided in
the preceding section, has the care and custody of the person of his
ward, and the management of all his estate, until such guardian is
legally discharged; and he must give bond to such ward, in like
manner and with like conditions as before prescribed with respect to
the guardian of a minor.

§ 349. Procebdinos to declare restoration.] Any pefson who has
been declared insane, or the guardian or any relative of such person,
within the third degree, or any friend may apply, by petition to the
probate court of the county in which .he was declared insane, to have
the fact of his restoration to capacity judicially determined. The
petition shall be verified, and shall state that such person is then
sane. Upon receiving the petition* the judge must appoint a day for
the hearing, and cause notice of the trial to be given to the guardian
of the petitioner, if there be a guardian, and to his or her husband or
wife, if there be one, and to his or her father or mother, if living in
the county. On the trial, the guardian or relative of the petitioner,
and in the discretion of the judge, any other person, may contest the
right of the petitioner to the relief demanded. Witnesses may be
required to appear and testify, as in other cases, and may be called and
examined by the judge on his own motion. If it be found that the
petitioner be of sound mind and capable of taking care of himself
and his property, his restoration to capacity shall be adjudged, and the
guardianship of such person, if such person be not a minor, shall
cease.

Article III. — The Powers and Duties of Guardians.

§ 350, Payment of debts — sales.] Every guardian appointed
under the provisions of this chapter, whether for a minor or any

666 Guardian and Ward. Probate Cade.

other person, must pay all just debts due from the ward out of his per-
sonal estate and income of his real estate, if suflScient; if not, then out
of his real estate, upon obtaining an order for the sale thereof, and
disposing of the same in the manner provided by law for the sale of real
estate of decedents.

§ 351. Collect and pay debts — appear in oourts.I Every guardian
must settle all accounts of the ward, and demand, sue lor, and
receive all debts due to him, or may, wdth the approbiation of the

Srobate judge, compound for the same and give discharges to the
ebtors on receiving a fair and just dividend of his estate and eflfects;
and he must appear for and represent his ward in all legal suits and
proceedings, unless another person is appointed for that purpose as
guardian or next friend.

§ 352. Rules governing management.] Every guardian must man-
age the estate of his ward frugally and without waste, and apply the
income and profits thereof, as far as may be necessary, for the coni-
fortable and suitable maintenance and support of the ward, and his
family, if there be any ; and if such income and profits be insuflBicient
for that purpose, the guardian may sell the real estate, upon obtain-
ing an order of the probate court therefor, as provided, and must
apply the proceeds of such sale, as far as may be necessary, for the
maintenance and support of the ward and his family, if there be any.

§ 368. Maintenance and support.] When a guardiiu) lias advanced
for the necessary maintenance, support, and education of his ward,
an amount not disproportionate to the value of his e>ilate or his
condition of life, and the same is made to appear to the .satisfaction
of the court, by proper vouchers and proofs, the guardian must be
allowed credit therefor in his settlement. Whenever a guardian fails,
neglects, or*refuses to furnish suitable and necessary maintenance,
support, or education for his ward, the court may order him to do so,
ana enforce such order by proper process. Whenever any third
person, at his request, supplies a ward with such suitable and neces-
sary maintenance, support, or education, and it is shown to have been
done after refusal or neglect of the guardian to supply the same, the
court may direct the guardian to pay therefor out of the estate, and
enforce such payment oy due process.

§ 354. Assent to partition.] The guardian may join in and assent
to a partition of the real esta,te of the ward, whenever such a^ssent
may be given by any person.

§ 355. Inventory and account.] Every guardian must return to
the probate court an inventory of the estate of his ward within three
months after his appointment, and annually thereafter. When the
value of the estate exceeds the sum of twenty thousand dollars, semi-
annual returns must be made to the probate court. The court may,
upon application made for that purpose by any person, compel the

fuardian to render an account to the probate court of the estate of
is ward. The inventories and accounts so to be returned or rendered,
must be sworn to by the guardian. All the estate of the ward
described in the first inventory must be appraised by appraisers
appointed, sworn, and acting in the manner provided for regulating
the settlement of the estate of decedents. Such inventory, with the

Probate Code. Guardian and Ward. 667

appraisement of the property therein described, must be recorded by
the judge of the probate, court, in a proper book kept in his oflSce for
that purpose. Whenever any other property of the estate of any
ward is discovered, not included in the inventory of the estate ah-eady
returned, and whenever any other property has been succeeded to or
acquired by any ward, or for his benefit, the like proceedings must be
had for the return and appraisement thereof that are herein provided
in relation to the first inventory and return.

§ 356. Settlement at end op year.] The guardian must, upon the
expiration of a year from the time of his appointment, and as often
thereafter as he may be required, present his accounts to the probate
court for settlement and allowance.

§ 357. Account by one of joint guardians.] When an account is
rendered by two or more joint guardians, the probate judge may, in
his discretion, allow the same upon oath of any of them.

§ 358. E^XPENSES AND PAY.] Evory guardian must be allowed the
amount of his reasonable expenses incurred in the execution of his
trust, and he must also have such compensation for his services as the
court in which his accounts are settled deems just and reasonable.

Abtiolb IV. — The Sale of Property and Disposition of the Pro-

CEEDS.

§ 359. Causes for sale.] When the income of an estate under
gua,rdianship is insuflBcient to maintain the ward and his family, or to
inaintain and educate the ward when a minor, his guardian may sell
his real or personal estate for that purpose, upon obtaining an order
therefor.

§ 360. Sale poe investment.] When it appears to the satisfaction
of the court, upon the petition of the guardian, that for the benefit of
his ward, his real estate, or some part thereof, should be sold, and the
proceeds thereof put out at interest, or invested in some productive
stock, or in the improvement or security of any other real estate of the
ward, his guardian may sell the same for such purpose, upon obtaining
an order therefor.

§ 361. Proceeds — how applied.] If the estate is sold for the pur-
poses mentioned in this article, the guardian must apply the proceeds
of the sale to such purposes, as far as necessary, and put out the
residue, if any, on interest, or invest it in the best manner in his
power, until the capital is wanted for the maintenance of the ward
and his family, or the education of his children, or for the education
of the ward when a minor, in which case the capital may be used for
that purpose, as far as may be necessary, in like manner as if it had
been personal estate of the ward.

§ 362. Investment — how made.] If the estate be sold for the pur-
pose of putting out or investing the proceeds, the guardian must make
the investment according to his best judgment, or in pursuance of any
order that may be made by the probate court.

§ 363. Petition for sale.] To obtain an order for such sale, the
guardian must present to the probate court of the county in which he

668 GuAEi>tA.N AND Waed. ProhoU Code.

was appointed guardian, a verified petition therefor, setting forth the
condition of the estate of his ward, and the facts and circumstances on
which the petition is founded, tendfig to show the necessity or expedi-
ency of a sale.

§ 364. Hearing and order.] If it appear to the court or judge,
from the petition, that it is necessary, or would be beneficial to the
ward that the real estate, or some part of it, should be sold, or that
the real and personal estate should be sold, the court or judee must
thereupon make an order directing, the next of kin of the ward, and all
persons interested in the estate, to appear before the court, at a tune
and place therein specified, not less than four nor more than eight
weeks from the time of making such order, to show cause why an
order should not be granted for the sale of such estate. If it appear
that it is necessary, or would be beneficial to the ward to self the
personal estate, or some part of it, the court must order the sale to be
made.

§ 365. Service of order on whom.] A copy of the order must be
personally served on the next of kin of the ward, and on all per-
sons int6restQd in the estate, at least fourteen days before the
hearing of the petition, or must be published at least three successive
weeks in a newspaper printed in the county, or if there be none printed
in the county, then in such newspaper as may be specified by the
court or judge iii the order. If written consent to making the order
of sale is subscribed by all persons interested therein, and the next of
kin, notice need not be served personally or by publication.

§ 366. Hearing upon ordJsr.] The probate court, at the time and
place appointed in the order, or such other time to which the hearing
is postponed, upon proof of the service or publication of the order,
must hear and examine the. proofs Si^nd allegations of the petitioner
and of the next of kin, and of all other persons interested in the
estate who oppose the application.

§ 367. Witnesses attendance.] On the hearing the guardian n\ay
be examined on oath, and witnesses mg^y be produced and examined
by either party, and process to compel their attendance and testimony
may be issued by the probate court or judge, in the same manner and
with like effect as in cases provided for in the settlement of the
estates of decedents.

§ 368. Costs.] If any person appears and objects to the granting
of any order prayed for under the provisions of this article, and it
appears to the court that either the petition or the objection thereto
is sustained, the court may, in granting or refusing the order, award
costs to the party prevailing, ana enforce the payment thereof.

§ 369. Order for sale— contents.] If, after a full examination,
it appears necessary, or for the benefit of the ward, that his real
estate, or some part thereof, should be sold, the court may grant an
order therefor, specifying therein the causes or reasons why the sale is
necessary or beneficial, and may, if the same has been prayed for in
the petition, order such sale to be made either at public or private
sale.

§ 370. Bond by guardian.] Every guardian authorized to sell real
estate, must, before the sale, give bond to the probate judge, with

Probate Code. Gtuardian and Waeb. 669

sufficient surety, to be approved by him, with condition to sell the
same in the manner and to account for the proceeds of the sale as
provided for in this chapter and chapter VII of this title.

§ 371. Reference to law governing.] All the proceedings under
petition of guardians for sales of property of their wards, giving
notice and the hearing of such petitions, granting and refusing an
order of sale, directing the sale to be made at public or private sale,
reselling the same property, return of sale and application for confirm-
ation thereof, notice and hearing of such application, making orders,
rejecting or confirming sales, and reports of sales, ordering and
making conveyances of property sold, accounting and the settlement
of accounts, must be had and made as provided and required by the
provisions of law concerning the estates of decedents, unless, otherwise
specially provided in this chapter.

§ 372. Time order in force.] No order of sale granted in pur-
suance of this article continues in force more than one year after
granting the same, without a sale being had.

§ 373. Terms of sale — security.] All sales of real iestate of Wards
must be for cash, or for part cash and part deferred payments, not to
exceed three years, bearing date from date of sale, as, in the discretion
of the probate judge is most beneficial to the ward. Guardians making
sales must demand and receive from the purchasers bond and mort-

§age on the real estate sold, with such additional security as the judj
eems tiecessary and sufficient to secure the faithful payment of tl
deferred payments and the interest thereon.

§ 374. Orders to invest.] The probate court, on the application of
a guardian or any person interested in the estate of any ward, after
such notice to persons interested therein, as the judge shall direct, may
authorize and require the guardian to invest the proceeds of sales, and
any other of his ward's money in his hands, in real estate, or in any
other manner most to the interest of all concerned therein; and the
probate court may make such other orders arfd give such directions as
are needful for the management, investment and disposition of the
estate and efiects, as circumstances require.

Article V. — Non-resident Guardians and Wards.

§ 375. Guardians for non-resident ward.] When a person liable
to be put under guardianship, according to the provisions of this chap-
ter, resides vsrithout this territory, and has estate therein, any friend
of such person, or any one interested in his estate, in expectancy or
otherwise, may apply to the probate judge of any county in which
there is any estate of such absent person, for the appointment of a
guardian; and if, after notice given to all interested, in such manner
as the judge orders, and a full hearing and examination, it appears
proper, a guardian for such absent person may be appointed.

§ 376. rowBRS J Every guardian, appointed under the preceding
section, has the same powers and performs the same duties, with
respect to the estate of the ward found within the territory, and with
respect to the person of the ward, if he shall cease to reside therein, as

670 Guardian and Ward. Probate Code.

are prescribed with respect to any other guardian appointed under
this chapter.

§ 377. Bond — exceptions.] Every such guardian must give bond to
the ward, in the manner and with the like conditions as hereinbefore
provided for other guardians, except that the provisions respecting the
inventory, the disposal of the estate and effects, and the account to be
rendered by the guardian, must be confined to such estate and effects
as come to his hands in this territory.

§378. First APPOINTMENT EXCLUSIVE.] The guardianship which is
first lawfully granted, of any person residing without this territory,
extends to all the estate of the ward within the same, and excludes
the jurisdiction of the probate court of every other county.

i5 379. Removal of property.] When the guardian and ward are
both non-residents, and the ward is entitled to property in this terri-
tory which may be removed to another territory, state, or foreign
country, without conflict with any restriction or limitation thereupon,
or impairing the right of the ward thereto, such jproperty may be
removed to the territory, state, or foreign country of the residence of
the* ward, upon the application of the guardian to the judge of the
probate court of the county in which the estate of the wara, or the
principal part thereof, is situated.

§ 380. Application for — proofs — order.] The application must be
made upon ten days' notice to the resident executor, administrator,
or guardian, if there be such, and upon such application the non-
resident guardian must produce and file a certificate, under the hand
of the clerk, judge, surrogate, or other authorized officer, and the seal
of the court from which his appointment was derived, showing:

1. A transcript of the record of his appointment.

2. That he has entered upon the discharge of his duties.

3. That he is entitled, by the laws of territory, state, or country of
his appointment to the possession of the estate of the ward; or must
produce and file a certifit*ate under the hand and seal of the clerk,
judge, surrogate, or other authorized officer of the court having juris-
diction in the country of his residence, of the estates of persons under
guardianship, or of the highest court of such territory, state, or
country, that by the laws of such country the applicant is entitled to
to the custody of the estate of his ward without the appointment of
any court.

tjpon such application, unless good cause to the contrary be shown,
the judge of the probate court must make an order granting to such
guardian leave to take and remove the property of his ward to the
territory, state, or place of his residence, which is authority to him
to sue for and receive the same in his own name, for the use and
benefit of his ward.

§ 381. Effect of order.] Such order is a discharge of the execu-
tor, administrator, local guardian, or other person in whose possession
the property may be at the time the order is made, on filing with the
probate court the receipt therefor of the foreign guardian of such
absent ward.

Probate Code. Goardiak and Ward. 671

Article VI. — General and Miscellaneous Provisions.

§ 382. Complaint against guardian.] Upon complaint made to
him by any guardian, ward, creditor, or other person interested in the
estate^! or having a prospective interest therein as heir or otherwise,
against any one suspected of having concealed, or conveyed away any
of the money, goods, or effects, or an instrument in writing, belonging
to the ward or to his estate, the judge of the probate court may cite
such suspected person to appear beiore him, and may examine and
proceed with him on such charge in the manner provided by law with
respect to persons susj^^ected of, and charged with, concealing or
embezzling the effects ot a decedent.

§ 383. Cause for removal.] When a guardian, appointed either by
the testator or the probate court or judge, becomes insane, or other-
wise incapable of discharging his trust, or unsuitable therefor, or has
wasted or mismanaged the estate or failed for thirty days to render
an account er maKe a return, the probate court may, upon such
notice to the guardian as the court may require, remove him and
compel him to surrender the estate of the ward to the person found to be
lawrally entitled thereto. Every guardian may resign when it appears
proper to allow the same; and upon the resignation or removal of a
guardian, as herein provided, the probate court may appoint another
in the place of the guardian who has resigned or has been removed.

§ 384. Events terminate guardianship.] The marriage of a minor
ward terminates the guardianship; and the guardian of an insane or
other person may be discharged by the judge of the probate court
when it appeal's to him, on the application of the ward or otherwise,
that the guardianship is no longer necessary.

§ 385. New bonds.] The judge of the probate court may require
a new bond to be given by a guardian whenever he deems it necessary
and may discharge the existing sureties from further liability, after
due notice given as he may direct, when it shall appear that no injury
can result therefrom to those interested in the estate.

§386. Bonds PRESERVED —actions UPON.] Every bond given by a
guardian must be filed and preserved in the office of the probate judge
of the county; and in case of a breach of a condition thereof, may be
prosecuted for the use and benefit of the ward or of any person
interested in the estate.

§ 387. Within three years disabilities.] No action can be
maintained against the sureties on any bond given by a guardian,
unless it be commenced within three years from the discharge or
removal of the guardian; but if at the time of such discharge the per-
son entitled to bring such action is under any legal disability to sue,
the action may be commenced at any time within three years after
such disabilitv is removed.

§ 388. Recovery of estate sold.] No action for the recovery of
any estate, sold by a guardian, can be maintained by the ward, or by
any person claiming under him, unless it is commenced within three
years next after the termination of the guardianship, or when a legal
disability to sue exists by reason of minority or otherwise, at the time

670 Guardian and Ward, obate Code.

are prescribed with respect to any other guardis^*^ ^ext after the
this chapter.

§ 377. Bond — bxcbptions.I Every such guar*' ^ discretion, when-
the ward, in the manner and with the like co aan of any person
provided for other guardians, except that the ad be governed and
inventory, the disposal of the estate and ef^

rendered by the guardian, must be confi'^ jcbt.] The power con-
as come to his hands in this territory. guardians and wards may

§ 378. -First appointment exclusiv act of the probate court,
first lawfully granted, of any persor minting a guardian must be
extends to all the estate of the ^ court. The provisions of this
the jurisdiction of the probate cr ,ts, §0 far as they relate to the

^ 379. Removal of propers ^ct courts, apply to proceedings
both non-residents, and the ^
tory which may be remov
country, without conflict ^
or impairing the right
removed to the territo'
the' ward, upon the a
probate court of tb ^

principal part the

§380. Applk
made upon te^
or guardian,
resident gv
of the ck
of the r

h ^

2.

h"

r^

/

8TICES' CODE

*olish a Code of Proceedings in Courts of Justices of tlie Peace, and to Limit

the Jurisdiction of the same.

CHAPTER I.

OP CIVIL PROCEEDINGS IN JUSTICES' COURTS.

t

Article L — Of the Jurisdiction of Justices' Courts.

§ 1. Place of office.] Be it enacted by the Legislative Assembly of
ihe Territory of Dakota: Justices of the peace must keep their omces
and hold their courts at some place selected by them, in their
respective townships and counties, in and for which they may be
elect-ed, and these courts are always open for the transaction of
business.

§2. Civil jurisdiction classified and limited.] The civil juris-
diction of these courts, within their respective counties extend:

1. To an .action arising on contract, for the recovery of money only,
where the sum claimed does not exceed one hundred dollars.

2. To an action for damages for injury to the person, or for taking
or detaining personal property, or for injuring personal property, or

I for an injury to real property, where the title or boundary of such
real property does not in any wise come in question, and where the
f damages claimed do not exceed one hundred dollars.

3. To an action for a fine, penalty, or forfeiture, not exceeding one
hundred dollars, given by statute or the ordinance of an incorporated
city or town. ^

4. To an action upon a bond or undertaking conditioned for the
payment of money, not exceeding one hundred dollars, though the
penalty exceed that sum, the judgment to be given for the sum actually
due. When the payments are to be made by installments, an action
may be brought for each installment as it becdmes due.

5. To an action to recover the possession of personal property, when
the value of such property does not exceed one hundred dollars.

6. To take and enter judgment on the confession of a defendant,
when the amount confessed does not exceed one hundred dollars.

7. To actions for forcible entry and detainer, or detainer only of real
property, where the title or boundary thereof in no wise comes in
question.

43

;

674 Civil Proceedings. Justices' Code^

§ 3. Criminal jurisdiction — to try — to examine.] These courts
shall have criminal jurisdiction to try and determine all cases of
misdemeanor, committed within their respective counties, not indict-
able, where the punishment is a fine not exceeding one hundred dollars,
or imprisonment in the county jail for a period not exceeding thirty^
days, or both such fine and imprisonment. And as to all public
offenses which are indictable, they have the power of committing^
magistrate. *

Article IL — Place of Trial,

§ 4. Actions, where commenced and tried.] Actions in justices'^
courts must be commenced, and subject to the right to change the place
of trial as hereinafter provided, must be tried in the county where
the defendant resides, or in which he may be summoned,
t § 5. Causes for change of place.] The court may at any time-

before the trial, on motion, change the place of trial in the following
cases :

1. Where it appears to the satisfaction of the justice before whom
the action is pending, by affidavit of either party, that such, justice ia
a material witness for either party.

2. Where either party makes and files an affidavit, that he believes
he cannot have a fair and impartial trial, before such justice, by rea-
son of the interest, prejudice, or bias of the justice.

3. When from any cause the justice is disqualified from acting.

4. When the justice is sick or unable to act.

§ 6. But one change, when.] The place of trial cannot be changed
on motion of the same party more than once.

§ 7. To WHERE CHANGED.] Whcu the court orders the place of trial
to be changed, the action must be transferred for trial to a justice'a
court the i)arties may agree upon; and if thev do not so agree, then
to another justice's court in the same county.tV.*8% dL. t\^^\
L.:i *^ 19 § 8. Proceedings upon the change.] After an order has been made,.
transf erring the action for trial to another court, the following pro-
ceedings must be had.

1. The justice ordering the transfer must immediately transmit to
the justice of the court to which it is transferred, on payment by the
party applying of all the costs that h?tve accrued, ana costs of trans-
ferring tne same to the docket of the other justice, all the papers in
the action, together with a certified transcript from his docket, of the
proceedings therein.

2. Upon the receipt by him of such papers, the justice of the court
to which the case is transferred must issue a notice, stating when and
where the trial will take place, which notice must be served upon the
parties at least one day before the time fixed for trial.

§ 9. New court's jurisdiction.] From the time the order chang-
ing the place of trial is made, the court to which the action is thereby
transferred has the same jurisdiction over as it though it had been
commenced in such court.

. § 10. Title or boundary of lands — district court.] The parties
to an action in a justice's court cannot introduce evidence upon any
matter wherein the title to, or toundaiy of, real property in any wise

Justices^ Code. Civil Pbogeedings^ 675

comes in question; and if it appear from the answer of the defendant,
verified by his oath, that the determination of the action will neces*
sarily involve the question of title to, or boundary of, real property,
in any wise, the justice must suspend all further proceedings in the
action, and certify the pleadings, and if any of the pleadings are oral
a transcript of the same from his docket, to the clerk of the district
court of the county or subdivision, on the payment by the plaintiff, of
one dollar for such transcript, and all costs accrued before such justice;
and from the time of filing such pleadings or transcript with the clerk,
the district court has over the action the same jurisdiction as if it had
been commenced therein.

Article III. — Manner of Commencing Actions.

§ 11. How COMMENCED.] . An actiou in a justice's court is com-
menced by the issuing the summons, or by the voluntary appearance
and pleading of the parties.

§ 12. Parties in person or by attorney.] Parties in justices'
courts, may appear and act in person or by attorney; and any person,
except by whom the summons or jury process was served, may act as
attorney.

§ 13. Infant's appearance — plaintiff — defendant.] When an
infant is a party, he must appear either by his general guardian, if lie
have one, or by a guardian appointed by the justice as follows:

1. If the infant De plaintiff the appointment must be made before
the summonses issued, upon the application of the infant, if he be of
the a^e of fourteen years; if under that age, upon the application of a
relative or friend.

2. If the infant be defendant, the guardian must be appointed at the
time the summons is returned, or before the answer. It is the right
of the infant to nominate his own guardian, if the infant be over
fourteen years of age; otherwise the justice must make the appoint-
ment,

§ 14. Summons — requisites of.] The summons must be^directed to
the defendant and signed by the justice, and must contain f

. 1. The title of the court, name of the county or township in which
the action is commenced, and the names of the parties thereto.

2. A suflBcient statement of the cause of action in general terms
to apprise the defendant of the nature of the claim against him.

3. A direction that the defendant appear and answer before the
justice at his office, at a time specified in the summons.

4. In an action arising on a contract, for the recovery of money or
damages only, a notice that unless the defendant so appears and
answers, the plaintiff will take judgment for the sum claimed by him,
stating it.

5. In other actions, a notice that unless the defendant so appears
and answers^ the nlaintiff will apply to the court for the relief
demanded. If the plaintiff has appeared by attorney, the name of the
attorney must be indorsed on the summons.

676 Civil Proceedings. Justices' Code.

§ 15. Time for defendant's appearance.] The time specified in the
summons for the appearance of the defendant shall in all cases be not
less than three nor more than twelve days from its date.

§ 16. When served in other county — limitation.] The summons
cannot be served out of the county of the justice before whom the
action is brought, except where the action is brought upon a joint con-
tract or obligation of two or more persons who reside in different
counties, and the summons has been served upon the defendant resi-
dent of the countv, or found therein, in which case the summons may
be served upon the other defendants out of the county. When the
defendant resides in the county, or is summoned therein, the summons
cannot be served within two days of the time fixed for the appearance
of the defendant; when he resides out of the county, and the summons
is served out of the county, the summons cannot be served within
seven days of such time.

§ 17. Who may serve summo^is — publication — clerk's certificate.]
The summons may be served by a sheriff, constable, pr any other per-
son not a party to the action, and must be served and returned in
same manner as summons in the district court, or in actions of attach-
ment; it may be served by publication; and sections 103 and 104 of the
code of civil procedure, so far as they relate to the publication of
summons, are made applicable to justices' courts, the word "justice"
being substituted for the word "judge" whenever the latter word
occurs; Provided, That when a summons is to be served out of the
county in which it was issued, the summons shall have attached to it
a certificate under seal by the clerk of the district court, to the effect,
that the person issuing the same was an acting justice of the peace at
the date of the summons.

§ 18. An hour for appearance.] The parties are entitled to one
hour in which to appear after the time fixed in the summons, but are
not bound to remain longer than that time unless both parties have
appojared, and the justice, being present, is engaged in the trial of
another cause.

Article IV. — Pleadings.

§ 19. Form — ^manner — verification.] Pleadings in justice's courts:

1. Are not required to be in any particular form, but must be such
as to enable a person of common understanding to know what is
intended.

2. May be oral or in writing.

3. Must not be verified, unless otherwise provided in this chapter.

4. If in writing, must be filed with the justice.

5. If oral, an entry of their substance must be made in the docket.
§ 20. Order of pleadings.] The pleadings are:

1. The complaint by the plaintiff.

2. The demurrer to the complaint.

3. The answer by the defendant.

4. The demurrer to the answer.

5. Reply to the answer.

§ 21. Complaint — ^what.1 The complaint in justices* courts is a
concise statement of the tacts constituting the plaintiff's cause of
action.

Justices' Code. Civil Procbedinos. 677

§ 22. Demurrer — when.] The defendant may, at any time before
answering, demur to the complaint.

§ 23. Answer — contents of.] The answer may contain a denial of
an^ or all of the material facts stated in the complaint, which the
detendant believes to be untrue; and also a statement, in a plain and
direct manner, of any other facts constituting a defense or counter-
claim, upon which an action might . be brought by the defendant
against the plaintiff in a justice's court,

§ 24. Demurrer to answer.] When the answer contains new
matter in avoidance, or constituting a defense or a counter-claim, the
plaintiff may, at any time before the trial, demur to the same for
insufficiency, stating therein the grounds of such demurrer.

§ 25. Prooeedinqs on demurrer.] The proceedings on demurrer
are as follows:

1. If the demurrer to the complaint is sustained, the plaintiff may,
within such time, not exceeding two days, as the court allows, amend
his complaint, j

2. If the demurrer to a complaint is overruled, the defendant may
answer forthwith.

3. If the demurrer to an answer is sustained, the defendant may
amend his answer within such time not exceeding two days, as the
court may allow.

4. If the demurrer to an answer is overruled, the plaintiff may, if
the answer contain new matter, reply forthwith. If tne answer does
not contain new matter, the action must proceed as if no demurrer
had been interposed.

§ 26. Amendments to pleadings — terms.] Either party may, at
any time before the conclusion of the trial, amend any pleading; but
if the amendment is made after the issue, and it appears to the
satisfaction of the court by oath, that an adjournment is necessary to
the adverse party, in consequence of such amendment, an adjournment
must be granted. The court may also, in its discretion, when an
adjournment will, by the amendment, be rendered necessary, require,
as a condition to the allowance of such amendment made after issues
joined, the payment of such costs to the adverse party, as he may be
put to by reason of such adjournment. The court may also, on such
terms as may be just, and on payment of costs, relieve a party frotn a
judgment by default, taken against him by his mistake, inadvertence,
surprise, or excusable neglect, but the application for such relief must
be made within ten days after the entry of the judgment, and upon
an affidavit showing good cause therefor.

§ 27. Pleading to same.] When a pleading is amended, the
adverse party may answer or demur to it witnin such time not
exceeding two days, as the court may allow.

Article V. — Attachments.

§ 28. When writ to issue.] In the cases mentioned in section 197
of the code of civil procedure, a writ to attach the personal prop-
erty of the defendant must be issued by the justice at the time of, or
after issuing the summons, and before answer. On receiving an affidavit

.678 Civil Proceedings. Justices' Code.

by, or on behalf of the plaintiff, stating the same facts as are required
to be stated by the affidavit specified in section 199 of the code oi civil
procedure.

§ 29. Undertaking by plaintiff.] Before issuing the writ; the
justice must require a written undertaking on the part of the plaintiff,
with two or more sufficient sureties, in a sum not less than nfby, nor
more than three hundred dollars, to the effect that if the defendant
recover judgment, the plaintiff will pay all costs that may be awarded
to the defendant, and all damages which he may sustain by reason of
the attachment, not exceeding the sum specified in the undertaking.

§ 30. Requisites of writ.] The writ may be directed to the sheriff
or any constable of the county, and must require him to attach and
safely keep all the personal property of the defendant within his
county, not exempt from execution, or so much thereof as may be
sufficient to satisfy the plaintiff's demand, the amount of which must
be stated in conformity with the complaint, unless the defendant give
him security, by the undertaking of two sufficient sureties, in an
amount sufficient to satisfy such demand besides costs; in which case,
to take such undertaking.

§ 31. Service and return.] The writ may be served by the sheriff
or any constable of the county in which it is issued, and returned in
the same manner as warrants of attachments are served and returned
in actions in the district court, and with the same force and effect.

Article VI. — Claim and Delivery of Personal Property.

§ 32. When delivery claimable.] In an action to recover posses-
sion of personal property, the plaintiff may, at the time of issuing sum-
mons or at any time thereafter before answer, claim the delivery of
such property to him; and article II, of chapter XI, of the code of civil
procedure, is applicable to such claim when made in justices' courts,
the powers therein ffiven and duties imposed on sheriffs being extended
to constables, and the word "justice" substituted for "judge."

"^ Article VII. — Forcible Entry and Detainer.

§ 83. Justices' jurisdiction.] Any justice of the peace within his
proper county shall have power to inquire in the manner hereinafter
specified of all cases of forcible entry and detainer or detainer only of
real property.

§ 34. Cases where action lies.] This action is maintainable:

1. Where a party has by force, intimidation, fraud, or stealth, entered
upon the prior actual possession of real property of another, and
detains the same.

2. Where a party after entering peaceably upon real property, turns
out by force, threats or menacing conduct, the party in possession; or,

3. Where he by force or by menaces and threats of violence, unlaw-
fully holds and keeps the possession of any real property, whether the
same was acquired peaceably or otherwise; or.

Justices^ Code. Civil Proceedings. ' 679

<

4. Where a lessee in person or by sub-tenants holds over after the
termination of his lease or expiration of his term, or fails to pay his
rent for three days after the same shall be due; or,

5. Wheire a party continues in possession after a sale of the real
property under mortgage, execution, order, or any judicial process,
after the expiration of the time fixed by law for redemption, and
after the execution and delivery of a deed.

6. Where a party continues in possession after a judgment in par-
tition, or after a sale under an order or decree of a probate court.

§ 35. Notice to quit required.] In all cases arising under sub-
divisions four, five, and six of the preceding section, three days written
notice to quit must be given to the lessee, sub-tenant, or party in.
possession, before proceedings can be instituted, and may be served
and returned in like manner as a summons is served and returned.

§ 36. Legal REPRBSBirrATivES.] The le^l representatives of a per-
son who might have been plaintiflF, if alive, may bring this action
after his death.

§ 37. YBRiFiBD COMPLAINT — VENUE.] The complaiut must be in
writing, and verified by the plaintiff, his agent or attorney, and the
proceedings may be had before any justice of the peace of the county
where the premises are situated, and shall be governed by the same
rules as other cases before justices of the peace, except as herein mod-
ified; Provided, That when the title to, or bounaary of the real .
property, in anywise comes in question, the case shall be certified to
the district court as in this chapter provided.

§ 38. Return day — adjournment.] The time for appearance and
pleading must not be less than two, nor more than four days from the
time the summons is served on the defendant, and no adjournment or
continuances shall be made for more than five days, unless the defend-
ant applying therefor shall give an undertaking to the plaintiff with
ffood and sufficient surety, to be approved by the justice, conditioned
TOr the payment of the rent that may accrue, together with the costs,
if judgment be rendered against the defendant.

I 39. Judgment for delivery — costs.] If the finding of the court
or the verdict of a jury be in favor of plaintiff, the judgment shall be
for the delivery of the possession to the plaintiff*, and for costs.(j(^^7 c^l. <\^ \

§ 40. This action single— limitation.] An action under the
provisions of this article, cannot be brought in connection with any
other, nor can it be made the subject of set-off; and no execution for
possession can be served except in the day time. tV\*t7 &1; . ^\^ \

§ 41. Appeal.] An appeal may be taken in the usual way upon
giving the undertaking prescribed in article XV of this chapter, which
shall suspend all further proceedings until the action is determined in
the district court.

Article VIII. — Judgment by default.

§ 42. Proceedings upon default.] When the defendant fails to
ai)pear and answer or demur, at the time specified in the summons, or
within one hour thereafter, then upon proof of service of the sum-
mons, the following proceedings must be had:

680 • Civil Proceedings. Justices^ Code.

1. If the action is based upon a contract and is for the recovery of
money or damages only, the court must render judgment in favor of
plaintiff for the sum specified in the summons.

2. In all other actions the court must hear the evidence oflfered by
the plaintiff, and must render judgment in his favor for such a sum^
not exceeding the amount stated m the summons, as appears by such
evidence to be just.

§ 43. Same — default presumed.] In the following cases the same
proceedings must be had, and judgment must be rendered in like
manner, as if i^he defendant had failed to appear and answer or demur:

1. If the complaint has been amended, and the defendant fails to
answer it as amended, within the time allowed by the court.

2. If the demurrer to the complaint is overruled, and the defendant
fails to answer at once.

3. If the demurrer to the answer is sustained, and the defendant
fails to amend the answer within the time allowed by the court.

Article IX. — Time of Trial and Postponements.

§ 44. When trial to commence — adjournments.] Unless postponed
as provided in this article, or unless transferred to another court, the
trial of the action must commence at the expiration of one hour from
the time specified in the summons for the appearance of defendant^
and the trial must be continued, without adjournment, for more
than twenty-four houi*s at any one time, until all the issues therein
are disposed of.

§ 45, Court may postpone trial— ceases when.] The court may,
of its own motion, postpone the trial:

1. For not exceeding one day, if, at the time specified in the sum-
mons, or by an order of the court for the trial, the court is engaged iri
the trial of another action.

2. For not exceeding two days, if,, by an amendment of the plead-
ings, or the allowance of the time to make such amendment, or to
plead, a postponement is rendered necessary.

3. For not exceeding three days, if the trial is upon issues of fact>
and a jury has been demanded.

§ 46. rosTPONEMENT BY CONSENT.] The court may, by consent of
the parties, given in writing or in open court, postpone the trial to a
time agreed upon by the parties.

§ 47. On applicatbion by party — requisites.] The trial may be
postponed upon the application of either party, for a period not exceed-
ing sixty days:

1. The party making the application must prove, by his own oath
or otherwise, that he cannot, for want of material testimony, which
he expects to procure, safely proceed to trial, and must show in what
respect the testimony expected is material, and that he has used due
diligence to procure it; and has been unable to do so.

2. The party makins the application must, if required by the adverse
party, consent that the testimony of any witness of such adverse
party, who is in attendance, may be then taken by deposition before
the justice, and that the testimony so taken may be read on the trial,

e. Civil Proceedings. 681

me eflfect, and subject 'to the same objections, as if the

.8 produced ; but the court may require the party making

dition to state, upon affidavit, the evidence which he expecte

^, and if the adverse party thereupon admits that such evidence

given, and that it be considered as actually given on the

iffered and overruled as improper, the trial must not be post-

/

If longer than ten days, undertaking.] No adjournment

unless by consent, be granted for a period longer than ten days^

* the application of either party, except upon condition that such

cy file an undertaking, in an amount fixed by the justice, with two

reties, to be approved oy the justice, to the effect that they will pay

0 the opposite party the amount of any judgment which may be

recovered against the party applying, not exceeding the sum specified

in the undertaking.

Article X — Trials.

§ 49. Issues classified.] Issues arise upon the pleadings when a
fact or conclusix)n of law is maintained by the one party, and is con-
troverted by the other. They are of two kinds:

1. Of law; and,

2. Of fact.

§ 50. Of law.] An issue of law arises upon a demurrer to the com-
plaint or answer, or to some part thereof.
§ 51. Of fact.] An issue of fact arises:

1. Upon a material allegation in the complaint controverted by the
answer; and,

2. Upon new matter in the answer, except an issue of law is joined
thereon.

§ 52. Law by court.] An issue of law must be tried by the courts
§ 53. Fact by jury.] An issue of fact must be tried by a jury, tmless.
a jury is waived, in which case it must be tried by the court.
§ 54. Jury, how waived.] A jury may be waived:

1. By consent of parties, entered in the docket.

2. By- a failure of either party to demand a jury before the com-
mencement of the trial of an issue of fact.

3. By the failure of either party to appear at the time fixed for the
trial of an issue of fact.

• § 55. Failure to appear.] If either party fails to appear at the
time fixed for trial, the trial may proceed at the request of the adverse
party. -

§56. Jury — when demanded — how selected.] Where the valueOi,,S^cA,dT^
in controversy or sum demanded exceeds twenty dollars, either party
may demand a jury; and upon such demand, the justice shall write
down the names of eighteen persons, residents of the county, and
having the qualifications of jurors in the district court, from which list
of names each party, the plaintiff* beginning, may strike out three
names alternately; and in case of the absence of either party, or of
his refusal to strike out, the justice shall strike out of said list such
names; and the justice shall at once issue his venire directed to the

*682 Civil Proceedings. Justices' Code.

«heriflf or any constable of the county, commanding him to summon
the twelve persons whose names remain upon the list as jurymen.

§ 57. Challenges and talesmen.] Challenges shall be allowed in
the same manner and for the same Causes as m the district courts in
civil actions; and incase the number shall be reduced below twelve
by such challenges, or in case any jurors summoned shall fail to
attend, the justice shall direct the sheriff or any constable to summon
and return forthwith a sufficient number of talesmen, having the
•qualifications of jurors, to complete the panel. All challenges must
be tried in a summary manner by the justice, who may examine the
juror challenged, or other witnesses under oath.

§ 58. Jury less than twelve.] Parties may agree that the jury
«hall consist of a less number than twelve jurors; but an agreement
to that effect must be in writing, signed by the parties and filed with
the papers in the case, or made in open court, and a minute thereof
entered by the justice in his docket.

§ 59. Oath.] The justice shall administer to the jurors the same
oath as is prescribed for jurors in civil actions in the district court.

§ 60. Production and inspection op papers.] When the cause of
action or counter-claim arises upon an account or instrument for the

Eayment of money only, the court, at any time before the trial, may,
y an order under his hand, require the original to be exhibited to the
inspection of, and a copy to be furnished to, the adverse party, at such
time as may be fixed in the order; or, if such order is not obeyed, the
account or instrument cannot be given in evidence.

§ 61. Genuineness admitted if not denied.] If the plaintiff annex
to his complaint, or file with the justice at the time of issuing the
summons, the original or a copy of the prommissory note, bill of
exchange, or other written obligation for the payment of money, upon
which the action is brought, the defendant is deemed to admit the
genuineness of the signatures of the makers, indorsers, or assignors
therebf, unless he specifically deny the same in his answer, and verify
the answer by his oath.

Article II. — Judgments other than by Default.

§ 62. By confession.] Judgments upon confession may be entered
up in any justice's court specified in the confession.

§ 63. Of dismissal — new action.] Judgment that the action be
dismissed, without prejudice to a new action, may be entered with
costs, in the following cases:

1. When the plaintiff voluntarily dismisses the action before it is
finally submitted.

2. When he fails to appear at the time specified in the suinmons, or
at the time to which the action has been postponed, or within one
hour thereafter.

3. When, after a demurrer to the complaint has been sustained, the
plaintiff fails to amend it within the time allowed by the court.

§ 64. Judgment at once after verdict.] When a trial by jury has
been had, judgment must be entered by the justice at once, in con-
formity with the verdict.

Justices' Code. Civil Proobbdings. 688

§ 65. By the court.] When the trial is by the court judgment
must be entered at the close of the trial.

§ §6. To RECOVER PERSONAL PROPERTY.] In actious to recover the
possession of personal property, the judgment must be entered sub-
stantially in the form required by section 295 of the code of civil
procedure.

§ 67. Excess rbmitteb.] When the amount found due to either
party exceeds the sum for which the justice is authorized to enter
judgment, such party may remit the excess, and judgment may be
rendered for the residue.

§ 68. Offer of judgment — costs.] If the defendant, at any time
before the trial, offer, in writing, to allow judgment to be taken against
him for a specified sum, the plaintiff may immediately have judgment
therefor^ with the costs then accrued ; but if he do not accept such
offer before the trial, and fail to recover in the action a sum equal to
the offer, he cannot recover coste; but co«ts must be adjudged against
him, and if he recover, be deducted from his recovery. The offer and
failure to accept it cannot be given in evidence, nor affect the recovery
otherwise than as to costs.

§ 69. Costs to prevailing party.] ' The justice must tax and
include in the judgment the costs allowed by law to the prevailing
party.

§ 70. Transcript of Judgment.] The justice on the demand of a
party in whose favor judgment is rendered, must give him a certified
transcript thereof on the payment to him of all costs accrued before
him, and one dollar for such transcript.

Article XII. — Executions.

§ 71. Within five years.] Execution for the enforcement of a
judgmemt of a justice's court may be issued by the justice who
entered the judgment, or his successor in office, on the application of
the party entitled thereto, at any time within five years from the
entry of judgment, except when it has been taken to the district
court on error or appeal, or docketed therein.

§ 72. Requisites of execution.] The execution must be directed
to the sheriff or any constable within the county, and must be sub-
scribed by the justice, and bear the date of its delivery to the ofiicer. It
must intelligibly refer to the judgment, stating the names of the
parties thereto, in whose favor, against whom, the time when, the
county where, and the name of the justice before whom the judgment
was rendered; and it must be made returnable to the justice within
thirty days after its' date.

§ 73. On money judgment.] An execution issued upon a judgment
for a sum of money, must state in the body thereof, the sum actually
due upon the judgment, and it must substantially require the officer
to satisfy the judgment, together with interest and costs, out of the
personal property of the judgment debtor; and to bring the money
before the justice by the return day of the execution, to be rendered
by the justice to the party who recovered the judgment. If the judg-

684 Civil Proobbbings. Justices' Code.

ment was rendered for a fine, penalty, or forfeiture of undertakings,
and bonds, or of recognizances taken or entered in a criminal case, the
justice must indorse that fact on the execution. ^

§ 74. For possession of personalty.] An execution issued upon a
judgment for the delivery of the possession of personal property, shall
substantially require the officer to deliver the possession of the same,,
particularly describing it, to the party entitled thereto; and may, at
the same time, require the officer to satisfy ariy costs or damages
recovered by the judgment^ out of the personal property of the party
against whom it was rendered, and the value of the property for which
the judgment was recovered to be specified therein, if a delivery cannot
be had.

§ 75. Same of real property.] An execution issued upon a judg-
ment in an action of forcible entry and detainer, or detainer only of
real property, shall substantially require the officer to deliver the pos^
session of the premises, particularly describing them, to the party
entitled thereto, and may at the same time reqmre the officer to satisfy
the costs out of the personal property of the party against whom the
judgment was rendered.

§ 76. Renewal of execution.] An execution may, at the request
of the judgment creditor, be renewed before the expiration of the time
fixed for its return, by the word " renewed" written thereon, with the
date thereof, and subscribed by the justice. Such renewal has the
effect of an original issue, and may be repeated as ofben as necessary.
If an execution is returned unsatisfied, another may be afterwards
issued.

§ 77. Sale of personalty — posted notice only.] The provisions
of chapter XIII of the code of civil procedure, relating to the levy and
sale or delivery of personal property, so far as the same are applicable
and not inconsistent with the provisions of this chapter, apply to and
govern the levy, sale, and delivery of personal property under an execu-
tion issued by a justice of the peace. And the constable, when the
execution is directed to him, is vested for that purpose with all the
powers of the sheriff; Provided, That notice shall not be published in
a newspaper, but shall be given by posting for ten days in five public
places within the county, one of which shall be at the office of the
justice issuing the execution.

Article XIII. — Contempts in Justices' Courts.

§ 78. Acts which constitute, classed.] A justice may punish as
for contempt, persons guilty of the following acts,- and no otner:

1. Disorderly, contemptuous, or insolent behavior towards the
justice while holding the court, tending to interrupt the due course of
a trial or other judicial proceeding.

2. A breach of the peace, boisterous conduct, or violent disturbance
in the presence of the justice, or in the immediate vicinity of the
court held by him, tending to interrupt the due course of a trial or
other judicial proceeding.

Justices^ Code. Civil Proceedings. 685

3. Disobedience or resistance to the execution of a lawful order or
process, made or issued by him.

4. Disobedience to a subpoena duly served, or refusing to be sworn
or to answer as a witness.

5. Rescuing any person or property in the custody of an officer by
virtue of an order or process of tne court held by him.

§ 79. Summary punishment.] When a contempt is committed in
the immediate view and presence of the justice, it may be punished
summarily; to that end an order must be made, reciting the facts as
they occurred, and adjudging that the person proceeded against is
thereby guilty of contempt, and that he be punished as therein
prescribed.

§ 80. When not in view.] When the ^contempt is not committed
in the immediate view and presence of the justice, a warrant of
arrest may be issued by such justice, on which the person so guilty may
be arrested and brought before the justice immediately, when an
opportunity to be heard in his defense or excuse must be given.
Tne justice^may, thereupon, discharge him, or may convict him of the
offense.

§ 81. Penalty limited.] A justice may punish for contempts, by
fine or imprisonment, or both; such fine not to exceed, in any case,
one hundred dollars, and such imprisonment one day.

§ 82. Docket entries.] The conviction, specifying particularly
the offense and the judgment thereon, must be entered by the justice
in his docket.

Article XIV. — Dockets of Justices.

§ 83. Justice to keep docket — entries and their order.] Every
justice must keep a book, denominated a docket, in which he must
•enter:

1. The title of every action or proceeding.

2. The object of the action or proceeding, and if a sum of money be
claimed, the amount thereof*

8. The date of the summons, and the time of its return ; and if a
writ of attachment be issued, a statement of the fact,

4. The time when the parties, or either of them, appear, or their
non-appearance, if default be made; a minute of the pleadings and
motions, if in writing, referring to them; if not in writing, a concise
statement of the material parts of the pleading.

5. Every adjournment, stating on whose application, and *to what
time.

6. The demand for a trial by jury, when the same is made, and by
whom made, the order for the jury, and the time appointed for the
return of the jury and for the trial.

7. The names of the jurors who appear and are sworn, and the
names of all witnesses sworn, arid at whose request.

8. The verdict of the jury, and when received; if the jury disagree
and are discharged, the fact of such disagreement and discharge.

9. The judgment of the court, specifying the costs included, and the '
time when rendered.

686 Civil Prooeedings. Justices' Code.

10. The issuing of the execution, when issued^ and to whom; the
renewals thereoi, if any, and when made; and a statement of any
money paid to the justice, when and by whom.

11. The receipt of a notice of appeal, if any be given, and of the
appeal bond, if any be filed.

I 84. When and how entered.] The several particulars in the
last section specified, must be entered under the title of the action to
which they relate, and unless otherwise in this chapter .provided, at
the time when they occur. Such entries in a justice's docket, or a
transcript thereof, certified by the justice, or his successor in office,,
are prima facie evidence of the facts so stated.

§ 85. Index to docket.] A justice m ust keep an alphabetical index
to his docket, in which must be entered the names of the parties to
each judgment, with a reference to the page of entry. The names of
the plaintiflFs must be entered in the index, in the alphabetical order
of the first letter of the family name.

§ 86. Records and files to successor.] Every justice of the peace^
upon the expiration of his term of office, must aeposit with his suc-
cessor his official dockets and all papers filed in his office, as well his
own as those of his predecessors, or any other which may be in his
custody to be kept as public records.
. § 87. When vacancy, to other justice.] If the office of a justice

become vacant by his death, removal, or otherwise, before his suc-
cessor is elected and Qualified, the docket and papers in possession of
such justice must be deposited in the office of some other justice in
the township or county, to be by him delivered to the successor of such
justice.

§88. Powers of justice receiving — changed county lines.] Any
justice with whom the docket of his predecessor, or of any other justice,
is deposited, has and may exercise over all actions and proceedings
entered in such docket, the same jurisdiction as if originally com-
menced before him. In case of the creation of a new county, or the
change of the boundary between two counties, any lustice into whose
hands the docket of a justice formerly acting as such within the same
territory may come, is, for the purposes of this section, considered
the successor of such former justice.

Article XV. — Appeals.

§ 89. Within thirty days — notice — law or fact.] Any party dis-
satisfied with a judgment rendered in a civil action in a justice's court,
may appeal therefrom to the district court of the county or subdivision,
at any time within thirty days after the rendition of the judgment.
The appeal is taken by filing a notice of appeal with the justice,
and serving a copy on the adverse party. The notice must state
whether the appeal is taken from the whole or part of the judgment,
and if from a part, what part, and whether the appeal is taken on
questions of law or fact, or both. Ok/V a . o\^ ^ I
cV,^\ri AH^ § 90. Law — statement of case.] When a party appeals to the
district court on questions of law alone, he must, within ten days from
the rendition of the judgment, prepare a statement of the case, and

Justices^ Code. Civil Pbocebdinqs. 687

file the same with, the justice. The statement must contain the
grounds upon which the party intends to rely on the appeal, and so
much of the evidence as may be necessary to explain the grounds, and
no more. Within ten days after he receives notice that the statement
is filed, the adverse party, if dissatisfied with the same, may file
amendments. The proposed statement and amendments must be
settled by the justice, and if no amendments be filed, the original
statement stands as adopted. The statement thus adopted, or as
settled by the- justice with a copy of the docket of the justice, and all
motions filed with him by the parties during the trial, and the notice
of appeal, may be used on the hearing of the appeal before the
district court,

-+ § 9L Fact, or both — trial anew.] When a party appeals to the
district court on question of fact, or on questions of both law and
fact, no statement need be made, but the action must be tried anew
in the district court.

4 § 92. Requisites of appeal — cosTSr— transcript.] Upon receivingA.3'i'*''^vi'^^
the notice of appeal, and on payment of one dollar for the return of
the justice, and all costs accrued before said justice, and filing an
undertaking as required in the next section, and after settlement or
adoption of statement, if any, the justice must, within five days, trans-
mit to the clerk of the district court, if the appeal be on questions of
law alone, a certified copy of his docket, the statement as admitted or
as settled, the notice ol' appeal, and the undertaking filed; or if
the appeal be on questions ot fact, or both law and fact, a certified
copy of his docket, the pleadings, all notices, motions, and other

gapers filed in the cause, tne notice of appeal and the undertaking
led; and the justice may be compelled by the district court, by an
order entered upon motion, to transmit such papers, and may be fined
for neglect or refusal to transmit the same. A certified copy of such
order may be served on the justice by the party or his attorney. In
the district court either party may have the benefit of all legal objec-
tions made in the justice's court.

§ 93. Undertaking for stay^ — deposit.] An appeal from a justice's
court is not effectual for anjr purpose, unless an undertaking be filed,
with two or more sureties, m the sum of one hundred dollars, for the
payment of the costs on the appeal; or, if a stay of proceedings be
claimed, in a sum equal to twice the amoant of the judgment, include
ing costs^ when the judgment is for the payment of money, or twice the
value of the property including costs, when the judgment is for the
recovery of specific personal property, and must be conditioned ; when
the action is for the recovery of money, that the appellant will pay the
amount of the judgment appealed from and all coste; if the appeal be.
withdrawn or dismissed, or the amount of any judgment and all costs .
that may be recovered asainst him in the action in the district court.
When the action is for the recovery of specific personal property, the
undertaking must be conditioned that the appellant will pay the judg-
ment and costs appealed from, and obey the order of the court made
therein, if the appeal be withdrawn or dismissed, or any judgment
and costs that may be recorded [recovered] against him in said action
in the district court, and will obey any order made by the court
therein. A deposit of the amount of the judgment, incluaing all costs.

678 Civil Prooeedings. Justices' Code.

by, or on behalf of the plaintiff, stating the same facts as are required
to be stated by the affidavit specified in section 199 of the code of civil
procedure.

§ 29. Undertaking by plaintiff.] Before issuing the writ; the
justice must require a written undertaking on the part of the plaintiff,
with two or more sufficient sureties, in a sum not less than nfty, nor
more than three hundred dollars, to the effect that if the defendant
recover judgment, the plaintiff will pay all costs that may be awarded
to the defendant, and all damages which he may sustain by reason of
the attachment, not exceeding the sum specified in the undertaking.

§ 30. Requisites of writ.] The writ may be directed to the sheriff
or any constable of the county, and must require him to attach and
safely keep all the personal property of the defendant within his
county, not exempt trom execution, or so much thereof as may be
sufficient to satisfy the plaintiff's demand, the amount of which must
be stated in conformity with the complaint, unless the defendant give
him security, by the undertaking of two sufficient sureties, in an
amount sufficient to satisfy such demand besides costs; in which case,
to take such undertaking.

§ 31. Service and return.] The writ may be served by the sheriff
or any constable of the county in which it is issued, and returned in
the same manner as warrants of attachments are served and returned
in actions in the district court, and with the same force and effect.

«

Article VI. — Claim and Delivery of Personal Property.

§ 32. When delivery claimable.] In an action to recover posses-
sion of personal property, the plaintiff may, at the time of issuing sum-
mons or at any time thereafter before answer, claim the delivery of
such property to him; and article II, of chapter XI, of the code of civil
procedure, is applicable to such claim when made in justices' courts,
the powers therein given and duties imposed on sheriffs being extended
to constables, and the word "justice" substituted for "judge."

\"

Article VII. — Forcible Entry and Detainer.

§ 33. Justices' jurisdiction.] Any justice of the peace within his
proper county shall have power to inquire in the manner hereinafter
specified of all cases of forcible entry and detainer or detainer only of
real property.

§ 34. Cases where action lies.] This action is maintainable:

1. Where a party has by force, intimidation, fraud, or stealth, entered
upon the prior actual possession of real property of another, and
detains the same.

2. Where a party after entering peaceably upon real property, turns
out by force, threats or menacing conduct, the party in possession; or,

3. Where he by force or by menaces and threats of violence, unlaw-
fully holds and keeps the possession of any real property, whether the
same was acquired peaceably or otherwise; or,

^tistices' Code. Civil Proceedings. ' 679

«

4. Where a lessee in person or by sub-tenants holds over after the
termination of his lease or expiration of his term, or fails to pay his
rent for three days after the same shall be due ; or,

5. Where a party continues in possession after a sale of the real
property under mortgage, execution, order, or any judicial process,
:after the expiration of the time iSxed by law for redemption, and
rafter the execution and delivery of a deed.

6. Where a party continues in possession after a judgment in par-
tition, or after a sale under an order or decree of a probate court.

§35. Notice TO QUIT REQUIRED.] In all cases arising under sub-
•di visions four, five, and six of the preceding section, three days written
notice to quit must be given to the lessee, sub-tenant, or party in.
possession, before proceedings can be instituted, and may be served
^nd returned in like manner as a summons is served and returned.

§ 36. Legal representatives.] The legal representatives of a per-
son who might have been plaintiflF, if alive, may bring this action
after his death.

§ 37. Verified complaint — venue.] The complaint must be in
writing, and verified by the plaintiff, his agent or attorney, and the
proceedings may be had before any justice of the peace of the county
where the premises are situated, and shall be governed by the same
rules as other cases before justices of the peace, except as herein mod-
itied; Provided, That when the title to, or bounaary of the real .
property, in anywise comes in question, the case shall be certified to
the district court as in this chapter provided.

§ 38. Return day — adjournment.] The time for appearance and
pleading must not be less than two, nor more than four days from the
time the summons is served on the defendant, and no adjournment or
continuances shall be made for more than five days, unless the defend-
ant applying therefor shall give an undertaking to the plaintiff with
ffood and sufficient surety, to be approved by the justice, conditioned
for the payment of the rent that may accrue, together with the costs,
if judgment be rendered against the defendant.

§ 39. Judgment for delivery — costs.] If the finding of the court
or the verdict of a jury be in favor of plaintiff, the judgment shall be
for the delivery of the possession to the plaintift', and for costs.(j(^^7 ol. ^V^ \

§ 40. This action single— limitation.] An action under the
provisions of this article, cannot be brought in connection with any
other, nor can it be made the subject of set-off; and no execution for
possession can be served except in the day time. tU.tl cA; * ^^^"^ \

§ 41. Appeal.] An appeal may be taken in the usual way upon
giving the undertaking prescribed in article XV of this chapter, which
shall suspend all further proceedings until the action is determined in
the district court.

Article VIII. — ^Judgment by default.

§ 42. Proceedings upon default.] When the defendant fails to
appear and answer or demur, at the time specified in the summons, or
within one hour thereafter, then upon proof of service of the sum-
mons, the following proceedings must be had:

680 ' Civil PROOEBBiKGe. Justices' Code.

1 . If the action is based upon a contract and is for the recovery of
money or damages only, the court must render judgment in favor of
plaintiff for the sum specified in the summons.

2. In all other actions the court must hear the evidence oflfered by
the plaintiff, and must render judgment in his favor for such a sum,.
not exceeding the amount stated m the summons, as appears by such
evidence to be just.

§ 43, Same — default presumed.] In the following cases the same
proceedings must be had, and judgment must be rendered in like
manner, as if ^le defendant had failed to appear and answer or demur:

1. If the complaint has been amended, and the defendant fails to
answer it as amended, within the time allowed by the court.

2. If the demurrer to the complaint is overruled, and the defendant
fails to answer at once.

3. If the demurrer to the answer is sustained, and the defendant
fails to amend the answer within the time allowed by the court.

Article IX. — Time of Trial and Postponements.

§ 44. When trial to commence — adjournments.] Unless postponed
as provided in this article, or unless transferred to another court, the
trial of the action must commence at the expiration of one hour from
the time specified in the summons for the appearance of defendant^
and the trial must be continued, without adjournment, for more
than twenty-four hours at any one time, until all the issues therein
are disposed of.

§ 45. Court may postpone trial — ceases when.] The court may,
of its own motion, postpone the trial:

1. For not exceeding one day, if, at the time specified in the sum-
mons, or by an order of the court for the trial, the court is engaged iii
the trial of another action.

2. For not exceeding two days, if,.by an amendment of the plead-
ings, or the allowance of the time to make such amendment, or to
plead, a postponement is rendered necessary.

3. For not exceeding three days, if the trial is upon issues of fact>
and a jury has been demanded.

§ 46. rosTPONEMENT BY CONSENT.] The court may, by consent of
the parties, given in writing or in open court, postpone the trial to a
time agreed upon by the parties.

§ 47. On application by party — requisites.] The trial may be
postponed upon the application of either party, for a period not exceed-
ing sixty days:

1. The party making the application must prove, by his own oath
or otherwise, that he cannot, for want of material testimony, which
he expects to procure, safely proceed to trial, and must show in what
respect the testimony expected is material, and that he has used due
diligence to procure it, and has been unable to do so.

2. The party makins the application must, if required by the adverse
party, consent that the testimony of any witness of such adverse
party, who is in attendance, may be then taken by deposition before
the justice, and that the testimony so taken may be read on the trial.

tde. Civil Progeedinos. 681

jame effect, and subject • to the same objections, as if the
as produced ; but the court may require the party making
cation to state, upon aflBdavit, the evidence which he expecte
A;i; and if the adverse party thereupon admits that such evidence
e given, and that it be considered as actually given on the
; offered and overruled as improper, the trial must not be post-

iK If longbr than ten days, undertaking.] No adjournment

, unless by consent, be granted for a period longer than ten days^

A the application of either party, except upon condition that such

-•ty file an undertakine, in an amount fixed by the justice, with two

•reties, to be approved oy the justice, to the effect that they will pay

.0 the opposite party the amount of any judgment which may be

recovered against the party applying, not exceeding the sum specified

in the undertaking.

Article X — Trials.

§ 49. Issues classified.] Issues arise upon the pleadings when a
fajit or conclusion of law is maintained by the one party, and is con-
troverted by the other. They are of two kinds:

1. Of law; and,

2. Of fact.

§ 50. Of law.] An issue of law arises upon a demurrer to the com-
plaint or answer, or to some part thereof.
§ 51. Of fact.] An issue of fact arises:

1. Upon a material allegation in the complaint controverted by the
answer; and,

2. Upon new matter in the answer, except an issue of law is joined
thereon.

§ 52. Law by court.] An issue of law must be tried by the court.
§ 53. Fact by jury.] An issue of fact must be tried by a jury, tmleSvS.
a jury is waived, in which case it must be tried by the court.
§ 54. Jury, how waived.] A jury may be waived:

1. By consent of parties, entered in the docket.

2. By a failure of either party to demand a jury before the com-
mencement of the trial of an issue of fact.

3. By the failure of either party to appear at the time fixed for the
trial of an issue of fact.

§ 55. Failure to appear.] If either party fails to appear at the
time fixed for trial, the trial may proceed at the request of the adverse
party. '■

§56. Jury — when demanded — how selected.] Where the valuedv,3^^,in^
in controversy or sum demanded exceeds twenty dollars, either party
may demand a jury; and upon such demand, the justice shall write
down the names of eighteen persons, residents of the county, and
bavitig the qualifications of jurors in the district court, from which list
of names each party, the plaintiff beginning, may strike out three
names alternately; and in case of the absence of either party, or of
his refusal to strike out, the justice shall strike out of said list such
names; and the justice shall at once issue his venire directed to the

682 Civil Proceedings. Justices' Code.

sheriff or any constable of the county, commanding him to summon
the twelve persons whose names remain upon the list as jurymen.

§ 57. Challenges and talesmen.] Challenges shall be allowed in
the same manner and for the same Causes as m the district courts in
civil actions ; and in case the number shall be reduced below twelve
by such challenges, or in case any jurors summoned shall fail to
attend, the justice shall direct the sheriff or any constable to summon
and return forthwith a sufficient number of talesmen, having the
qualifications of jurors, to complete the panel. All challenges must
be tried in a summary manner by the justice, who may examine the
juror challenged, or other witnesses under oath.

§ 58. Jury less than twelve.] Parties may agree that the jury
«hall consist of a less number than twelve jurors; but an agreement
to that effect must be in writing, signed by the parties and Sled with
the papers in the case, or made in open court, and a minute thereof
entered by the justice in his docket.

§ 59. Oath.] The justice shall administer to the jurors the same
oath as is prescribed for jurors in civil actions in the district court.

§ 60. Production and inspection op papers.] When the cause of
action or counter-claim arises upon an account or instrument for the
payment of money only, the court, at any time before the trial, may,
by an order under his hand, require the original to be exhibited to the
inspection of, and a copy to be furnished to, the adverse party, at such
time as may be fixed in the order; or, if such order is not obeyed, the
account or instrument cannot be given in evidence.

§ 61. Genuineness admitted if not denied.] If the plaintiflF annex
to his complaint, or file with the justice at tne time of issuing the
summons, the original or a copy of the prommissory note, bill of
exchange, or other written obligation for the payment of money, upon
which the action is brought, the defendant is deemed to admit the
genuineness of the signatures of the makers, indorsers, or assignors
thereof, unless he specifically deny the same in his answer, and verify
the answer by his oath.

Article II. — Judgments other than by Default.

§ 62. By confession.] Judgments upon confession may be entered
up in any justice's court speciled in the confession.

§ 63. Of dismissal — new action.] Judgment that the action be
dismissed, without prejudice to a new action, may be entered with
costs, in the following cases:

1. When the plaintiflF voluntarily dismisses the action before it is
finally submitted.

2. When he fails to appear at the time specified in the sunamons, or
at the time to which the action has been postponed, or within one
hour thereafter.

3. When, after a demurrer to the complaint has been sustained, the
plaintiflF fails to amend it within the time allowed by the court.

§ 64. Judgment at onoe after verdict.] When a. trial by jury has
been had, judgment must be entered by the justice at once, in con-
formity with the verdict.

Justices' Code. Civil Proceedings. 688

§ 65. By the court.] When the trial is by the court judgment
must be entered at the close of the trial.

§ §6. To RECOVER PERSONAL PROPERTY.] In actious to rccovcr the
possession of personal property, the judgment must be entered sub-
stantially in the form required by section 295 of the code of civil
procedure.

§ 67. Excess remitted.] When the amount found due to either
party exceeds the sum for which the justice is authorized to enter
judgment, such party may remit the excess, and judgment may be
rendered for the residue.

§ 68. Offer of judgment — costs.] If the defendant, at any time
before the trial, offer, in writing, to allow judgment to be taken against
him for a specified sum, the plaintiff may immediately have judgment
therefor with the costs then accrued ; but if he do not accept such
offer beiore the trial, and fail to recover in the action a sum equal to
the offer, he cannot recover costs; but costs must be adjudged against
him, and if he recover, be deducted from his recovery. The offer and
failure to accept it cannot be given in evidence, nor affect the recovery
otherwise than as to costs.

§ 69. Costs to prevailing party.] ' The justice must tax and
include in the judgment the costs allowed by law to the prevailing
party.

§ 70. Transcript of Judgment.] The justice on the demand of a
party in whose favor judgment is rendered, must give him a certified
transcript thereof on the payment to him of all costs accrued before
him, and one dollar for such transcript.

Article XII. — Executions.

S 71. Within five years.] Execution for the enforcement of a
judgmemt of a justice's court may be issued by the justice who
entered the judgment, or his successor in office, on the application of
the party entitled thereto, at any time within five years from the
entry of judgment, except when it has been taken to the district
court on error or appeal, or docketed therein.

§ 72. Requisites of execution.] The execution must be directed
to the sheriff or any constable within the county, and must be sub-
scribed by the justice, and bear the date of its delivery to the officer. It
must intelligibly refer to the judgment, stating the names of the
parties thereto, in whose favor, against whom, the time when, the
county where, and the name of the justice before whom the judgment
was rendered; and it must be made returnable to the justice within
thirty days after its' date.

§ 73. On money judgment.] An execution issued upon a judgment
for a sum of money, must state in the body thereof, the sum actually
due upon the judgment, and it must substantially require the officer
to satisfy the judgment, together with interest and costs, out of the
personal property of the judgment debtor; and to bring the money
before the justice by the return day of the execution, to be rendered
by the justice to the party who recovered the judgment. If the judg-

684 Civil Pboobbdings. Justices' Code^

ment was rendered for a jfine, penalty, or forfeiture of undertakings,
and bonds, or of recognizances taken or entered in a criminal case, the
justice must indorse that fact on the execution. ^

§ 74. For possession of personalty.] An execution issued upon a
judgment for the delivery of the possession of personal property, shall
substantially require the officer to deliver the possession of the same,
particularly describing it, to the party entitled thereto; and may, at
the same time, require the officer to satisfy ariy costs or damages
recovered by the judgment^ out of the personal property of the party
against whom it was rendered, and the value of the property for which
the judgment was recovered to be specified therein, if a delivery cannot
be had.

§ 75. Same op real property.] An execution issued upon a judg-
ment in an action of forcible entry and detainer, or detainer only of
real propertv, shall substantially require the officer to deliver the poe^
session of the premises, particularly describing them, to the paarty
entitled thereto, and may at the same time require the officer to satis^
the costs out of the personal property of the party against whom the
judgment was rendered.

§ 76. Renewal op exboution.] An execution may, at the request
of the judgment creditor, be renewed before the expiration of the time
fixed for its return, by the word " renewed" written thereon, with the
date thereof, and subscribed by the justice. Such renewal has the
effect of an original issue, and may be repeated as often as necessary.
If an execution is returned unsatisfied, another may be afterwaros
issued.

§ 77. Sale of personalty — posted notice only.] The provisions
of chapter XIII of the code of civil procedure, relating to the levy and
sale or delivery of personal property, so far as the same are applicable
and not inconsistent with the provisions of this chapter, apply to and
govern the levy, sale, and delivery of personal property under an execu-
tion issued by a justice of the peace. And the constable, when the
execution is directed to him, is vested for that purpose with all the
powers of the sheriff; Provided, That notice shall not be published in
a newspaper, but shall be given by postine for ten days in five public
places within the county, one of which shall be at the office of the
justice issuing the execution.

Article XIII. — Contempts in Justices' Courts.

§ 78. Acts which constitute, classed.] A justice may punish as
for contempt, persons guilty of the following acts,»and no other:

1. Disorderly, contemptuous, or insolent behavior towards the
justice while holding the court, tending to interrupt the due course of
a trial or other judicial proceeding.

2. A breach of the peace, boisterous conduct, or violent disturbance
in the presence of the justice, or in the immediate vicinity of the
court held by him, tending to interrupt the due course of a trial or
other judicial proceeding.

J^ustices^ Code. Civil Proceedings. 685

8. Disobedience or resistance to the execution of a lawful order or
process, made or issued by him.

4. Disobedience to a subpoena duly served, or refusing to be sworn
or to answer as a witness.

5. Rescuing any person or property in the custody of an officer by
virtue of an order or process of tne court held by him.

§ 79. Summary punishment.] When a contempt is committed in
the immediate view and presence of the justice, it may be punished
summarily; to that end an order must be made, reciting the facts as
they occurred, and adjudging that the person proceeded against is
thereby guilty of contempt, and that he be punished as therein
prescribed.

§ 80. When not in view.] When the ^contempt is not committed
in the immediate view and presence of the justice, a warrant of
arrest may be issued by such justice, on which the person so guilty may
be arrested and brought before the justice immediately, when an
opportunity to be heard in his defense or excuse must be given.
The justice- may, thereupon, discharge him, or may convict him of the
offense.

§ 81. Penalty limited.] A justice may punish for contempts, by
fine or imprisonment, or both; such fine not to exceed, in any case,
one hundred dollars, and such imprisonment one day.

§ 82. Docket entries.] The conviction, specifying particularly
the offense and the judgment thereon, must be entered by the justice
in his docket.

Article XIV. — Dockets of Justices.

§ 88. Justice to keep docket — entries and their order.] Every
justice must keep a book, denominated a docket, in which he must
«nter:

1. The title of every action or proceeding.

2. The object of the action or proceeding, and if a sum of money be
claimed, the amount thereof

3. The date of the summons, and the time of its return; and if a
writ of attachment be issued, a statement of the fact.

4. The time when the parties, or either of them, appear, or their
non-appearance, if default be made; a minute of the pleadings and
motions, if in writing, referring to them; if not in writing, a concise
statement of the material parts of the pleading.

5. Every adjournment, stating on whose application, and *to what
time.

6. The demand for a trial by jury, when the same is made, and by
whom made, the order for the jury, and the time appointed for the
return of the jury and for the trial.

7. The names of the jurors who appear and are sworn, and the
names of all witnesses sworn, arid at whose request.

8. The verdict of the jury, and when received; if the jury disagree
and are discharged, the fact of such disagreement and discharge.

9. The judgment of the court, specifying the costs included, and the '
time when rendered.

686 Civil Progbbbi^os. Justices' Code*

10. The issuing of the execution, when issued,, and to whom; the
renewals thereof, if any, and when made; and a statement of a«y
money paid to the justice, when and by whom.

11. The receipt of a notice of appeal, if any be given, and of the
appeal bond, if any be filed.

§ 84. When and how entbbei>.] The several particulars in the •
last section specified, must be entered under the title of the action to
which they relate, and unless otherwise in this chapter .provided, at
the time when they occur. Such entries in a justice^s docket, or a.
transcript thereof, certified by the justice, or his successor in office^
are prima facie evidence of the facts so stated.

§ 85. Index to docket.] A justice must keep an alphabetical index
to his docket, in which must be entered the names of the parties to
each judgment, with a reference to the page of entry. The names of
the plaintiflfe must be entered in the index, in the alphabetical order
of the first letter of the family name.

§ 86. Records and files to successor.] Every justice of the peace,,
upon the expiration of his term of office, must deposit with his sue-
cesser his official dockets and all papers filed in his office, as well his
own as those of his predecessors, or any other which may be in his
custody to be kept as public records.
. § 87. When vacancy, to other justice.] If the office of a justice

become vacant by his death, removal, or otherwise, before his suc-
cessor is elected and Qualified, the docket and papers in possession of
such justice must be deposited in the office of some other justice in
the township or county, to be by him delivered to the successor of such
justice.

§88. Powers of justice receiving — changed county lines.] Any
justice with whom the docket of his predecessor, or of any other justice^
is deposited, has and may exercise over all actions and proceedings
entered in such docket, the same jurisdiction as if originally com-
menced before him. In case of the creation of a new county, or the
change of the boundary between two counties, any iustice into whose
hands the docket of a justice formerly acting as such within the same
territory may come, is, for the purposes of this section, considered
the successor of such former justice.

Article XV. — Appeals.

§ 89. Within thirty days — notice — law or fact.] Any party dis-
satisfied with a judgment rendered in a civil action in a justice's court,
may appeal therefrom to the district court of the county or subdivision,
at any time within thirty days after the rendition of the judgment.
The appeal is taken by filing a notice of appeal with the justice,
and serving a copy on the adverse party. The notice must state
whether the appeal is taken from the whole or part of the judgment,
and if from a part, what part^ and whether the appeal is taken on
questions of law or fact, or both. ^M A . "^ ^ I
c\\,%\4..\i^A § 90. Law — statement of case.] Wnen a party appeals to the

district court on questions of law alone, he must, within ten days from
the rendition of tne judgment, prepare a statement of the case, and

Justices' Code. Civil Pbogsedinos. 687

file the same with, the justice. The statement must contain the
grounds upon which the party intends to rely on the appeal, and so
much of the evidence as may be necessary to explain the grounds, and
no more. Within ten days after he receives notice that the statement
is filed, the adverse party, if dissatisfied with the same, may file
amendments. The proposed statement and amendments must be
settled by the justice, and if no amendments be filed, the original
statement stands as adopted. The statement thus adopted, or as
settled by the- justice with a copy of the docket of the justice, and all
motions filed with him by the parties during the trial, and the notice
of appeal, may be used on the hearing of the appeal before the
district court.

-+ § 91. Fact, or both— trial anew.] When a pftrty appeals to the
district court on question of fact, or on questions of both law and
fact, no statement need be made, but the action must be tried anew
in the district court.

4 § 92. Requisites of appeal — costs — transcript.] Upon receivingtSv.^A^-^v'*^
the notice of appeal, and on payment of one dollar for the return of
the justice, ana all costs accrued before said justice, and filing an
undertaking as required in the next section, and after settlement or *
adoption of statement, if any, the justice must, within five days, trans-
mit to the clerk of the district court, if the appeal be on questions of
law alone, a certified copy of his docket, the statement as admitted or
as settled, the notice ol* appeal, and the undertaking filed; or if
the appeal be on questions ot fact, or both law and fact, a certified
copy of his docket, the pleadings, all notices, motions, and other

Sapers filed in the cause, tiie notice of appeal and the undertaking
led; and the justice may be compelled by the district court, by an
order entered upon motion, to transmit such papers, and may be fined
for neglect or refusal to transmit the same. A certified copy of such
order may be served on the justice by the party or his attorney. In
the district court either party may have the benefit of all legal objec-
tions made in the justice's court.

§ 93. Undertaking for stay— deposit.] An appeal from a justice's
court is not eflfectual for any purpose, unless an undertaking be filed,
with two or more sureties, in the sum of one hundred dollars, for the
payment of the costs on the appeal; or, if a stay of proceedings be
claimed, in a sum equal to twice the amount of the juogment, includ-
ing costs^ when the judgment is for the payment of money, or twice the
value of the property including costs, when the judgment is for the
recovery of specific personal property, and must be conditioued; when
the action is for the recovery of money, that the appellant will pay the
amount of the judgment appealed from and all costs; if the appeal be.
withdrawn or dismissed, or the amount of any judgment and all costs .
that may be recovered against him in the action in the district court.
When the action is for the recovery of specific personal property, the
undertaking must be conditioned that the appellant will pay the judg-
ment and costs appealed from, and obey the order of the court made
therein, if the appeal be withdrawn or dismissed, or any judgment
and costs that may be recorded [recovered] against him in said action
in the district court, and will obey any order made by the court
therein. A deposit of the amount of the judgment, including all costs.

688 Civil Procbbdings. Justices' Code.

appealed from, or of the value of the property^ including all costs in
actions for the recovery of specific personal property, with the justice,
is e(][uivalent to the filing of the undertaking; and in such cases the
justice must transmit the money to the clerk of the district court, to
be by him paid out on the order of the court. The adverse party may
except to the sufficiency of the sureties within five days after the fil-
ing of the undertaking, and unless they or other sureties justify before
the justice before whom the appeal is taken, within five days there-
after, upon notice to the adverse party, to the amounts stated in their
affidavits, the appeal must be regarded as if no such undertaking had
been riven.

§ 94. Delivery of possession — detainer — requisites op undertak-
ing.] In judgments for the delivery of possession in actions of forcible
entry and deteiner, or detainer only, the execution of the same can
not be stayed unless a written undertaking be executed on the part of
the api)ellant, with two or more sureties, to the effect that during the
possession of such property by the appellant he will not commit or
suffer to be committed any waste thereon, and that if the judgment
be affirmed, or the appeal be dismissed, he will pay all rents for the use
and occupation of the property, and all damages from the time of the
appeal until the delivery of the possession thereof.

§ 95. Order to s^ay execution.] If an execution be issued, on the
filing of the undertaking staying proceedings, the justice must, by
order, direct the officer to stay all proceedings on the same. Such
officer, must, upon payment of his fees for services rendered on the
execution, thereupon relinquish all property levied upon, and deliver
the same to the judgment debtor, together with all moneys collected
from sales or otherwise. If his fees be not paid, the officer may retain
so much of the property or proceeds thereof as may be necessary to
pay the same.

§ 96. Powers of district court on appeal.] Upon an appeal heard
upon a statement of the case, the district court may review all orders
anecting the judgment appealed from, and may set aside, affirm, or
modify the judgment, or may, if necessary or proper, order a new
trial. When the action is tried anew, upon appeal, the trial must be
•conducted in all respects as trials in the district court. The provis-
ions of the code of civil procedure as to changing the place of trial,
and all the provisions as to trials in the district court are applicable
to trials on appeal in that court. For a failure to prosecute an appeal,
or unnecessary delay in bringing it to a hearing, the district court,
after notice, may "order the appeal to be dismissed. Judgments
rendered in the district court on appeal, have the same force and effect
and may be enforced in the district court in the same manner, as
judgmenfe^ in actions commenced therein, except that when a ' new
trisd is granted the case must be remanded, and the new trial shall be
had in the justice's court. t5u . ^' A tn < |

Article XVI. -General Provisions.

§ 97. Process throughout county.] Justices of the peace may
issue in any action or proceedings in the courts held by them, any
original mesne or final process to any part of the county.

Justices^ CodSi Criminal Pbocebdings. * 689

§ 98. Without blank to be filled.] The suininons, execution, and
- every other paper made or issued by a justice, except a subpoena,
must be issued without a blank left to be filled by another, otherwise
it is void.

§ 99. Justice to receive moneys.] Justices of the peace must
receive from the sheriff or constables of their county, all moneys
collected on any process or order issued from their courts respectively,
and all moneys paid to them in their official capacity, and must pay
the same over to the parties entitled or authorized to receive them,
without delay.

§ 100. Other justice may hold court.] In case of the sickness or
other disability, or necessary absence of a justice, on a return of a
summons, or at the time appointed for a trial, another justice of the
same township or county, may, at his request, attend in his behalf^
and thereupon is vested with the power, for the time being, of the
justice before whom the summons was returnable. In that case the
proper entrv of the proceedings before the attending justice, sub-
scribed by him, must be made in the docket of the justice before
whom the summons was returnable. If the case is adjourned^ the
justice before whom the summons was returnable, may resume juris-
diction.

§ 101. Costs prepaid or secured.] Justices shall in all cases
require of plaintiffs a deposit of money or an undertaking as security
for costs of court before issuing a summons. iS\ .S9 o^^ (\% \

% 102. Costs to prevailing party.] The prevailing party in civil
actions in justices' courts is entitled to costs.

§ 103. Code of civil procedure how applicable.] Justice's courts
being courts of peculiar and limited jurisdiction, only those provisions
of the code of civil procedure which are in their nature ai}plicable to
the organization, powers, and course of proceedings in justices' courts,
or which have been made applicable by special provisions in this
chapter, are applicable to justices' courts and the proceedings therein.

CHAPTER II:

OF criminal proceedings in JUSTICES' COURTS.

§ 104. Committing magistrates — law applying.] Chapters III, IV,
V, VI, and VII of the code of criminal procedure, relate to the juris- ^
diction and duties of justices of the peace as committing magistrates; '
and direct the mode of proceeding when an information, verified by
oath, is laid before them of the commission of a public onense triable
on indictment.

§ 105. To KEEP PEACE.] Chapter III of title II of the same code
relates to their jurisdiction and duties in cases of security to keep the
peace.

§ 106. Sworn complaint.] All proceedings and actions before a
justice's court, for a public offense of which such court has jurisdic-

44

ft

690 Criminal Proceedings. Justices' Code.

tion, to try and determine the same, must be comnaenced by complaint
under oath, setting forth the offense charged, witi such particulars of
time, place, person, and property, as to enable the defendant to under-
stand distinctly the character of the offense complained of, and to
answer the complaint.

§ 107. Warrant — form.] If the justice of the peace is satisfied
therefrom that the offense complained of has been committed, he must
issue a warrant of arrest, whicn must be substantially in the follow-
ing form :

County of The Territory of Dakota.

To any Slieriff or Constable of said County:

Complaint upon oath having been this day made before me by C. D.,

that the offense of [designating it generally], has been committed, and accusing E. F^ thereof;
You are therefore commanded forthwith to arrest the above named E. F., and bring him beforp
me forthwith, at [naming the place].

Witness my hand at. . .' this day of A. D

A.B.

§ 108. In other county how served.] The warrant may be served
in any other countj^ in the manner prescribed by sections 101 and 102
of the code of criminal procedure.

§ 109. Criminal docket. J A docket must be kept by the justice of
the peace, in which must be entered each action, and the proceedings
of the court therein.

§110. Plea oral- examination.] The defendant may make the
same plea as upon an indictment. His plea must be oral, and entered
in the minutes. If the defendant plead guilty the court may, before
entering such plea or pronouncing judgment, examine witnesses to
ascertain the gravity of the offense committed; and if it appears to
the court that a higher offense has been committed than the offense
charged in the complaint, the court may order the defendant to be
committed or admitted to bail, to answer any indictment which may
be found against him by the grand jury.

§ 111. When case to be tried.] tfpon a plea other than a plea of
guilty, if the defendant does not demand a trial by jury, or an adjourn-
ment, or change of venue is not granted, the court must proceed to
try the case.

§112. Change of venue.] In criminal proceedings in a justice's
court, a change of the place of trial may be had at any time before
the trial commences, when it appears from the affidavit of the defend-
ant that he has reason to believe, and does believe, that he cannot
have a fair and impartial trial before the justice about to try the case,
by reason of the prejudice or bias of such justice, the cause must be
transierred to another justice of ttie same county.
. § 113. Proceedings upon.] When a change of the place of trjal is
ordered the justice must transmit to the justice before whom the trial
is to be had all the original papers in the cause, with a certified copy
of the minutes of his proceedings; and upon receipt thereof, the justice
to whom they are delivered must proceed with the trial iu the same
manner as if the proceeding or action Imd been originally commenced
in his court.

§ 114. Postponement of triai,.] Before the commencement of the
trial either party ma3% upon good . cause shown, have a reasonable
postponement thereof.

Justices' Code. Criminal Prooi:bding«. 691

§ 115. Defendant's PRB8BNCE.] The defendant must be personally
present before the trial can proceed.

§ 116. Trial jury.] Before the court, hears any testimony upon
the trial the defendant may demand a trial by jury. The formation of
the jury is provided for in chapter I, article X, of this code.

§ 117. Challenges.] The same challenges may be taken by either
party to any individual juror, as on the trial of an indictment for a mis-
demeanor; but the challenge must in all cases be tried by the court.

§ 118. Oath to jury.) The court must administer to the jury the
following oath:

You do swear that you will well and truly try this issue between the Territory of Dakola and
A. B., the defendant, and a true verdict render accoi-ding to the evidence. So help you God.

Any juror who is conscientiously scrupulous of taking an oath, shall
he allowed to make affirmation, substituting for the words " So help
you God," at the end of the oath, the words " This you do affirm, under
the pains and penalties of perjury."

§ 119. Jttry's nuTY.] After the jury are sworn they must sit
together and hear the proofs and allegations of the parties, which must
be delivered in public, and in the presence of the defendant.

§ ISO. Court DECIDES LAW — no charge.] The court must decide all
questions of law which may arise in the course of the trial, but can
^ive no charge with rebpect to matters of fact.

§ 121. Jury's consultation — officer.] After hearing the proofs
and allegations, the jury may decide in court, or may retire for
<*onsideration. If they do not immediately agree, an officer must be
>8worn to the following eifect:

r I

You do BWear that you will Ueep tUi8 jury togetber in Home quiet and convenient place: that
you will not permit any person to speak to them, nor speak to them yourself/unless by order of
the court, or to ask them whether they hare agreed upon a reindict; and that you wHIl return
them into court when tliey Imve so agreed, or when ordered by the courts . • .

■ ' ' ' ,

§ 122. Verhiot.] The verdict of the juiy must in all cases be ^^n-
•eral. When the jury have agreed on their verdict, they must deliver
it publicly to the courtv who iaw^i enter or cause it to be entered. in
the docket.

§ 128. As TO PART. OF DBFBNDANTaJ When several defendants
are tiT?ed together, if thfejury cannot agree upon a verdict as to all,
thej" may render a verdict as to those in regard to whom they do
agree, on which a judgment must be entered accordingly, and the
case, as to the rest, xx\^y be tried by another jury.

§ 124. When discharged.] The jury cannot be discharged after
the cause is submitted to them, until they have agreed upon and ren-
Klered their verdict, unless for good cause the court sooner discharges
them.

§ 126. Trial agaust.] If the jury is discharged, as provided in the
last section, the court may proceed again to the trial, in the same
manner as upon the first trial, and so on until a verdict is rendered.

§ 126. Judgment upon guilt.] When the defendant pleadg
guilty, or is convicted, either by the court or by a jury, the court
must render judgment thereon of fine or imprisonment, or both,
as the case may be. ,

692 Criminal Proceedings. Jt^tioes' Code.

§ 127. Fine and imprisonment.] A judgment that the defendant
pay a fine may also direct that he be imprisoned until the fine is satis-
fied, in the proportion of one day's imprisonment for every two dollars
of the fine,

§ 128. Acquittal and discharge — prosecutor to pay costs.] When
the defendant is acquitted, either by the court or by the jury, he must
be immediately discharged; and if the court certify in the minutes that
the prosecution was malicious or without i)robable cause, it may order
the prosecutor to pay. the costs of the action, or to give satisfactory
security by a written undertaking, with one or more sureties, to pay
the same within thirty days after the trial.

§ 129. Jugdmbnt entered immediately,] At the close of the
trial, judgment must be immediately rendered by the justice, and
entered in his docket.

§ 130. Immediate discharge.] If judgment of acquittal is given,,
and the defendant is not detained for any other legal cause, he must be^
discharged as soon as the judgment is given.

§ 181. Mittimus.] When a judgment of imprisonment is entered,
a certified copy thereof must be delivered to the sheriflf or other
officer, which is a sufficient warrant for its execution.

§ 132. Custody until fine paid.] When a judgment is entered
imposing a fine, or ordering the defendant tq be imprisoned until
the fine is paid, he must be held in custody during the time specified
in the judgment, unless the fine is sooner paid.

§ 133. Fines paid over to treasurer — expenses.] Upon payment
of the fine to the justice, the officer must discharge the defendant, if
he is not detained for any other legal cause, and apply the money to
the payment of the expenses of the prosecution, and pay over the
residue, if any, within ten days, to the county treasurer, for the use of
the public schools of the county. If a fine is imposed, and paid before
commitment, it must be applied as prescribed in this section,

§ 134. Bail before conviction.] The defendant at any time after
his arrest, and before conviction, may be admitted to bail, bv giving
an undertaking with sufficient surety in an amount to be fixed by
the justice, for his appearance before the justice to answer the com-
plaint.

§ 185. SuBPCENAs — CONTEMPTS.] In all criminal proceedings, the
justice may issue subpoenas for witnesses, and punisn for contempts
as provided for in article XIII of the justices' code.

Article IL — Appeals in Criminal Proceedinos.

§ 186. RiaHT TO APPEAL — ORAL NOTICE — ISSUES ON APPEAL.] The

justice immediately on rendering judgment against the defendant-
must inform him of his ri^ht to appeal tnerefrom, and the defendant
may thereupon take an appeal to the district court of the county or
subdivision in which the trial was had, by giving notice orally to the
justice that he appeals, and the justice must make an entry on his
docket of the giving of such notice; and upon such appeal, the
action may be tried anew in the district court upon questions of law
and fact, or fact alone; or the appeal may be determined therein
upon questions of law alone, and the judgment may be set aside,.

I

Justices^ Code. Criminal Proobedings. ft93

affirmed, or modified, or a new trial granted as provided in section
ninety-six of the justices' code.

§ 137. Appeal as in civil actions.] Instead of such. appeal, the
defendant may at any time within thirty days after judgment, appeal
to such district court in the same manner as provided in sections
eighty-nine, ninety, and ninety-one, and such appeal may be determ-
ined therein as provided for in section ninety-six of the justices'
code.

§ 138. Bail on appeal.] Upon an appeal the justice must enter an
order on his docket, fixing the amount in which bail may be given by
the defendant, and the execution of the judgment shall not be
stayed unless he enter into an undertaking in the amount fixed with
sufficient surety to be approved by the justice to appear and answer at
the next term of the district court, and riot depart without leave of
the same.

§ 139. Taken by any magistrate.] The bail may be taken by the
justice who rendered the judgment, or by any magistrate in the county
who has authority to admit to bail, or by the district court, or the
<5lerk thereof.

§ 140. Witnesses may be bound to appear.] When an appeal is
taken, the justice must, if application be made by the district attornej",
cause aU material witnesses on behalf of the prosecution to enter into
an undertaking in like manner as in a case where a defendant is
held to answer on a preliminary examination for an indictable
oifense.

§ 141. Proceedings on appeal — record and papers transmitted.]
Upon an appeal being taken, the justice must, within five days, trans-
mit to the clerk of the district court, if the appeal be on questions of
law alone, a certified copy of his docket, the statement as admitted or
as settled, the notice of appeal, if any, and the undertaking of bail;
or, if the appeal be on questions of fact, or both law and fact, a certi-
fied copy of nis docket, the pleadings, all notices, motions and other
papers filed in the cause, the notice of appeal, if any, and the under-
takings filed; and the justice may be compelled by the district court,
by an order entered upon motion, to transmit such papers, and, if the
return be defective, to make further return, and may be fined for neg-
lect or refusal to transmit the same. A certified copy of such order
may be served on tlie justice bj^ the party, or his attorney. In the
district court, either party may have the benefit of all legal objections
made in the justices' court.

§ 142. No APPEAL dismissed — NEW TRIAL.] No appeal from the
judgment of a justice of the peace in criminal proceedings shall be
dismissed. All proceedings necessary to carry the judgment upon
appeal into effect shall be had in the district court; Provided, however,
That when a new trial is granted, the Case must be remanded, and the
new trial had in the justice's court.

Approved, February 13, 1877.

694 Reports of Justicbs. Justices' Code.

CHAPTER HI.

JUSTICES' QUARTERLY REPORT TO COUNTY BOARD.

AN ACT requiring Justices of the Peace to make a Quarterly Report to the County Commis-
sioners of their respective Counties. [Chapter LX., Laws 1874-5.]

§ 1. Make sworn reports.] Be it enacted by the Legislative Assembly
of the Territory of Dakota : It shall be the duty of all justices of the
peace to make a full report, under oath, of all their proceedings in
actions or matters in which the county or territory is a party, or
interested therein, to the county commissioners of each of their
respective counties, on the first Monday of January, April, July, and
October of each year.

§ 2. Contents of report.] Such report shall contain the names of
the parties to the action or proceeding, a statement of all orders made
by said justice, whether the defendant be bound over or otherwise,
the judgment, whether of dismissal or imprisonment^ or for a fine and
costs, or either; if for imprisonment, the extent thereof and costs; if
for a fine, the amount tnereof and costs, the amount of fine and
costs paid, if any, and the disposition thereof; an itemized account of
the fees of said justices, and of all oflBcers and witnesses, and the
names of each.

§ 3. Must pay over all moneys.] Said justices shall pay into the
treasury of their respective counties all fines and moneys collected by
them in behalf of the county or territory, at the time of making their
reports, as provided in this act; but if, at any time, such moneys in
their hands amount to two hundred dollars, they shall pay the same
into the treasuiy forthwith.

§ 4. Penalty.] Any justice of the ^eace violating any of the
provisions of this act shall be liable to a fane of not less than ten nor
more than one hundred dollars, to be recovered in a civil action by
the county, which action may be brought originally in a justice^*
court or the district court.

§ 5. Violation a crime.] And if any justice of the peace shall
neglect or refuse to make such report, or neglect or refuse to pay over
the aforesaid moneys collected by them, or shall refuse to allow the
county commissioners, or any of them, to examine their records in
regard to such matters, they shall be deemed guilty of willful and
corrupt misconduct in office.

§ 6. Effect.] This act shall take effect from and after its passage
and approval.

Approved, January 15, 1875.

PENAL CODE.

AN ACT to Establish a Penal Code for the Territory of Dakota.

CHAPTER I.

PRELIMINARY PROVISIONS.

§ 1. Title of act J Be it enacted by the Legislative Assembly of the
Territory of Dakota, That this act shall be known as the penal code of
the Territory of Dakota.

§ 2. What acts criminal.] No act or omission shall be deemed
criminal or punishable except as prescribed or authorized by this code,
or by some of the statutes which it specifies as continuing in force, or
such laws as do not conflict with the provisions of this code.

§ 3. Crime defined.] A crime or public oflfense is an act or omis-
sion forbidden by law, and to which is annexed, upon conviction, either
of the following punishments:

1. Death.

2. Imprisonment.

3. Fine.

4. Removal from office; or,

5. Disqualification to hold and enjoy any oflice of honor, trust, or
profit, under this territory.

§ 4. Crimes divided.] Crimes are divided into:

1. Felonies.

2. Misdemeanors.

§ 5. Felony defined.] A felony is a crime which is, or majr be,
punishable with death, or by imprisonment in the territorial prison.

§ 6. Misdemeanor.] Every other crime is a misdemeanor.

§ 7. Objects of penal code.] Thig code specifies the classes of per-
sons who are deemed capable of crimes, and liable^to punishment there-
for; and defines the nature of the various crimes; and prescribes the
kind and measure of punishment to be inflicted for each. The
manner of prosecuting and convicting criminals is regulated by the
code of criminal procedure.

696 Who Punishable. Penal Code.

§ 8. Conviction precedes punishment.] The punishments prescribed
by this code can be inflicted ouly upon a legal conviction in a court
having mrisdiction.

§ 9. Jury find degree of crime.] Whenever a crime is distin-
guished into degrees, the jury, if they convict the prisoner, shall
find the degree of crime of which he is guilty,

§ 10. Rule op construction.] The rule of the common law that
penal statutes are to be strictly construed, has no application to this
code. All its provisions are to be construed according to the fair import
of their terms, with a view to effect its objects and to promote justice.

§ 11. Punishment determined by court.] The several sections of
this code which declares certain crimes to be punishable as therein
mentioned, devolve a duty upon the court authorized to pass sentence,
to determine and impose the punishment prescribed.

§ 12. Punishments.] Whenever in this code the punishment for a
crime is left undetermined between certain limits, the punishment to
be inflicted in a particular case shall be determined by the court
authorized to pass sentence, within such limits as may be prescribed
by this code.

§ 13. Punishment of felonies.] Except in cases where a different
punishment is prescribed by this code or by some existing provis-
ion of law, every offense declared to be felony is punishable by a fine
not exceeding one thousand dollars, or by imprisonment in the terri-
torial prison not exceeding two years, or by both such fine and
imprisonment.

, § 14. Misdemeanors.] Except in cases where a different punishment
is prescribed by this code, or by some existing provisions of law.
every offense declared to be a misdemeanor is punishable by imprison-
ment in a county jail not exceeding one year, or by a fine not
exceeding five hundred dollars, or by both such fine and imprisonment.

CHAPTER IL

of persons liable to punishment for crime.

§ 15. Who liable to punishment.] The following persons are
liable to punishment under the laws of this territory:

1. All persons who commit, in whole or in part, any crime within
this territory.

2. All who commit theft out of this territory, and bring, or are found
with the property stolen, in this territory.

3. All who, being out of this territory, abduct or kidnap, by
force or fraud, any person, contrary to the laws of the place where
such act is committed, and bring, send, or convey such person within
the limits of this territory, and are afterwards found therein.

4. And all who, being out of this territory, cause or aid, advise or
encourage, another person, causing an injury to any person or

Penal Code. Who Punishable. 697

Sroperty within this territory, by means of any act or neglect which is
eclared criminal by this code, and who are afterwards found within
this territory.

§ 16. Who capable of crimes.] All persons are capable of commit-
ting crimes, except those belonging to tne following classes:

1. Children undei* the age of seven years.

2. Children of the age oi seven years, but under the age of fourteen
years, in the absence of proof that at the time of committing the act
or neglect charged against them, they knew its wrongfulness.

3. Idiots.

4. Lunatics, insane persons, and all persons of unsound mind, includ-
ing persons temporarily or partially deprived of reason, upon proof
that at the time of committing the act charged against them they
were incapable of knowing its wrongfulness.

5. Persons who committed the act, or made the omission charged,
under an ignorance or mistake of fact, which disproves any criminal
intent. But ignorance of the law does not excuse from punishment
for its violation.

6. Persons who committed the act charged without being conscious
thereof.

7. Persons who committed the act, or made the omission charged,
while under involuntary subjection to the power of superiors.

§ 17. Intoxication — how considered.] No act committed by a per-
son while in a state of voluntary intoxication, shall be deemed less
criminal by reason of his having been in such condition. But when-
ever the actual existence of any particular purpose, motive, or intent,
is a necessary element to constitute any particular species or degree
of crime, the jury may take into consiaeration the fact that the
accused was intoxicated at the time, in determining the purpose,
motive, or intent, with which he committed the act.

§ 18. Morbid propensity.] A morbid propensity to commit pro-
hibited acts, existing in the mind of a person who is not shown to
have been incapable of knowing the wrongfulness of such acts, forms
no defense to a prosecution therefor.

§ 19. Insanity - court may commit for.] When a jury have returned
a verdict acquitting a defendant upon the ground of insanity, the court
may thereupon, if the defendant be in custody, and they deem his dis-
<5harge dangerous to the public safety, order him to be committed to
the territorial lunatic asylum, or to the care of such person or persons
as the court may direct, till he become sane.

§ 20. Involuntary acts.] The involuntary subjection to the power
of a superior, which exonerates a person charged w^ith a criminal act
or omission from punishment tJierefor, arises either from :

1. Duress; or,

2. Coverture.

§ 21. What duress excuses.] The ^duress which excuses a person
from punishment who has committed a prohibited act or omission
must DC an actual compulsion by use of force, or fear.

§ 22. Subjection inferred from coverture.] A subjection sufficient
to excuse from punishment may be inferred in favor of a wife, from
the fact of coverture, whenever she committed the act charged, in the

698 . Who Punishable. Penal Code.

presence^ and with the assent of her husband, except where such act
IS a participation in:

1. Treason.

2. Murder.

3. Manslaughter.

4. Maiming.

5. An attempt to kill.

6. Rape.

7. Abduction.

8. Abuse of children.

9. Seduction.

10. Abortion, either upon herself or another female.

11. Concealing the death of an infant, whether her own or that of
another.

12. Fraudulently producing a false child, whether as her own, or
that of another.

13. Bigamy.

14. Incest.

15. The crime against nature.

16. Indecent exposure.

17. Obscene exhibitions of books and prints.

18. Keeping a bawdy, or other disorderly house.

19. Misplacmg a railway switch; or,

20. Obstructing a railway track.

§ 23. When not inferred.] In case of the crimes enumerated in
the last section, the wife is not excused from punishment by reason of
her subjection to the power of her husband, unless the facts proved
show a case of duress as defined in section twentv-one.

§ 24. Inference may be rebutted.] The inference of subjection
arising from the fact of coverture may be rebutted by any facts show-
ins that in committing the act charged the wife acted freely.

§ 25. Exemption of public ministers.] Ambassadors and other
public ministers from foreign governments accredited to the president
or the government of the United States, and recognized by it according
to the laws of the United States, with their secretaries, messengers,
families and servants are not liable te punishment in this t^erritory,
but are to be returned to their own country for trial and punishmentl

CHAPTER III.

OF PARTIES TO CRIMES.

§ 26. Classification of parties.] The parties to crimes are classi-
fied as:

1. Principals; and,

2. Accessories.

§ 27. Ppincipals.1 All persons concerned in the commission of
crime whether it be felony or misdemeanor, and whether they directly
commit the act constituting the offense, or aid and abet in its commis-
sion, though not present, are principals.

Penal Code. Crimes Defined. 691>

§ 28. Accessories.] All persons who, after the commission of any
felony, conceal or aid the offender, with knowledge that he has com-
mitted a felony and with intent that he may avoid or escape from
arrest, trial, conviction, or punishment, are accessories.

§ 29. No accessories.] In misdemeanor, there are no accessories.

§ 30. Punishment of accessories.] Except in cases where a differ-
ent punishment is prescribed by law, an accessory to a felony is
punishable by imprisonment in a territorial prison not exceeding five
years, or in a county jail not exceeding one year, or by fine not
exceeding five hundred dollars, or by both such fine and imprisonment.

CHAPTER IV.

OF CRIMES AGAINST RELIGION AND CONSCIENCE.

§ 31. Blasphemy defined.] Blasphemy consists in wantonly utter-
ing or publishing words, casting contumelious reproach or profane
ridicule upon God, Jesus Christ, the Holy Ghost, the hply scriptures, or
the christian religion.

§ 32. Serious discussion.] If it appears beyond reasonable doubt
that the words complained of were used in the course of serious dis-
cussion, and with intent to make Icnown or recommend opinions enter-
tained by the accused, such words are not blasphemy.

§ 33. . ]M[i8demeanor.] Blasphemy is a misdemeanor.

§ 34. Profane swearing defined.] Profane swearing consists in
any use of the name of God, or Jesus Christ, or the Holy Ghost, either
in imprecating divine vengeance upon the utterer, or any other person,
or in light, trifling, or irrevent speech.

§ 35. Punishment of.] Every person guilty of profane swearing is
punishable by a fine of one dollar for eacn offense.

§ 36. Summary conviction for.] Whenever any profane swearing
is committed in the presence and hearing of any justice of the peace,'
mayor, recorder, or alderman of any city, while holding a court, or
under any other circumstances such as in the opinion of the magistrate
amount to a gi'oss violation of public decency, such magistrate may^
in his discretion, immediately convict the offender, without any other
proof.

§ 37. Penalties -HOW collected.] If the offender does not forth-
with pay the penalties incurred, with the costs, or give security for
their payment within six days, he shall be committed by warrant to
the county jail for every offense, or for any number of offenses whereof
he Was convicted at one and the same iime, for not less than one day,.
nor more than three days; there to be confined in a room separate
from all other prisoners.

§ 38. The sabbath.] The first day of the week being by very

feneral consent set apart for rest and religious uses, the law lorbids to-
e done on that day certain acts deemed useless, and serious interrup-
tions of the repose and religious liberty of the community.

§ 39. Sabbath breaking.] Any violation of this prohibition is
sabbath breaking.

700 Crimes Defined. Penal Code.

§ 40. Day defined.] Under the term "day," as employed in the
phrase *' first day of the week," in the eight sections following, is
included all the time from midnight to midnight.

§ 41. Sabbath breaking defined.] The following are the acts for-
bidden to be done on the first day of the week, the doing any of which
is Sabbath breaking:

1. Servile labor.

2. Undue travel.

3. Public sports.

4. Trades, manfactures, and mSchanical employments.

5. Public traffic.

6. Serving process.

§ 42. Sabbath labor.] All manner of servile labor, on the first

day of the week, is prohibited, excepting works of necessity or charity.

5tjL,Hr7pi. \-\^ § 43. Undue travel.] All traveling on the first day of the week

is prohibited, excepting such as is performed upon foot or in carrying
or in a conveyance carrying the United States mail, or such as is done
in cases of charity or necessity, or in going to or returning from some
funeral, place of worship, or religious assembly within the distance of
twenty miles, or in going for medical aid, or for medicines and return-
ing, or in visiting the sick and returning, or in going express by order
of same public officer, in removing one's familj^ or household fur-
niture when such removal was commenced on some other day.

§ 44. Persons observing other day.] It is a sufficient defense in
proceedings for sei*vile labor or undue travel on the first day of the
week, to show that the accused uniformly keeps an other day of the
week as holy time, and does not labor or travel upon that day, and
that the labor or travel complained of was done in such manner as
not to interrupt or disturb other persons in observing the first day of
the week as holy time. ^

§ 45. Public sports.] All shooting, sporting, horse racing, gaming
or other public sports, upon the first day of the week, are prohibited.
, § 46. Trades and employments.] All trades, manufactures and
mechanical employments upon the first day of the week are prohib-
ited.

§ 47. Public traffic] All manner of public selling, or offering, or
exposing for sale publicly, of an}^ commodities upon the first day of the
week, is prohibited, except that meats, milk, and fish may be sold at
any time before nine o'clock in the morning, and except that food
may be sold to be eaten upon the premises where sold, and drugs^ and
medicines and surgical appliances may be sold at any time of the
day.

§48. Serving process.] All service of 'legal process of anjr de-
scription whatever, upon the first day of the week, is prohibited, except
in cases of breach of the peace, or apprehended breach of the
peace, or when sued out for the apprehension of a person charged with
crime, or except where such service shall be specially authorized by
law.

§ 49. Punishment.] Every person guilty' of Sabbath breaking is
punishable by a fine of one dollar for each offense.

§ 50. Fines collected — no exemptions.] The fines prescribed in this
chapter for profane swearing and for Sabbath breaking, may be

Penal Code. Crimes Defined. 701

collected in the manner prescribed by law for the collection of debts;
but no property shall be exempt from execution which has been taken
to satisfy any such fines and costs.

§ 51. Maliciously serving process.] Whoever maliciously procures^
any process in a civil action to be served on Saturday upon any person
who keeps Saturday as holy time, and does not labor on that day, or
serves upon him any px'ocess returnable on that day, or maliciously
procures any civil action, to which such person is a party, to be
adjourned to that day for triaJ, is guilty of a misdemeanor.

^ 52. Compelling form op belief.] Any willful attempt, by means
of threats or violence, to compel any person to adopt, practice, or
profess any particular form of religious belief, is a misdemeanor.

§ 53. Preventing religious act.] Every person who willfully

f)revents, by threats or violence, another person from performing any
awful act enjoined upon or recommenaed to such person by the
religion which he professes, is guilty of a misdemeanor.

§54. Disturbing religious meeting.] Every person who willfully
disturbs, interrupts, or disquiets any assemblage of people met for
religious worship, by any of the acts or things hereinafter enumerated,
is guilty of a misdemeanor.

^ 55. Definition of the offense.] The following are the actj?
deemed to constitute disturbance of a religious meeting:

1. Uttering any profane discourse,' committing any rude or indecent
act, or making any unnecessary noise, either within the place where
such meeting is held, or so near it as to disturb the order and solemn-
ity of the meeting.

2. Exposing to sale or gift any ardent or distilled liquors, or keeping
open any huckster shop within one mile of the place where any
religious society or assembly shall be actually convened for religious
worship, and in any other place than such as shall have been duly
licensed and in which the person accused shall have actually resided
or carried on business.

3. Exhibiting within the like distance, any shows or plays without
a license by the proper autJiority.

4. Engaging in, or aiding, or promoting, within the like distance,
any racing of animals, or gaming of any description.

6. Obstructing in any manner, without authority of law, within the
like distance, the free passage along any highway, to the place of suck
meeting.

CHAPTER V.

CRIMES AGAINST THE ELECTIVE FRANCHISE.

§ 56. Giving ob eeceiviNG bribe.] Every person who, by offering to
give^ or by giving a bribe, to any elector, or who by menace or any
other corrupt means, either directly or indirectly attempts to influence
such elector in giving his vote at any election, and every elector
entitled to vote at such election who shall take or receive such bribe,
shall be punished by fine not exceeding one thousand dollars, and not

702 Crimes Defined. Penal Code.

less than one hundred dollai-s, and be imprisoned in the county jail
not exceeding one year, and not less than three months.

§ 57. Illegal influence.] Every person offering, giving, or loaning
to another anj'^ money, or other thing of value to induce him to influ-
ence any elector to vote in a particular way, or for any person at any
such election, shall be punished by fine not exceeding five hundred dol-
lars, or be imprisoned m the county jail not exceeding one year, or by
both such fine and imprisonment.

§ 58. Betting upon elections.] Every person who makes, offers,
or accepts any bet or wager upon the result of ajiy election, or uDon
the success or failure of any person or candidate, or upon the numoer
of votes to be cast either in the aggregate, or for anj^ particular candi-
date, or upon the vote to be cast by any person or persons, or upon
the decision to be made by any inspector, or canvassar, of any ques-
tion arising in the course of an election, or upon any event whatever
depending upon the conduct or result of an election, is guilty of a
misdemeanor.

§ 59. Offers of office.] Every person who, being a candidate at
:any election, offers, or agrees to appoint or procure the appointment
of any particular person or persons to office, as an inducement or con-
sideration to any person to vote for, or procure or aid in procuring the
election of such candidate, is guilty of misdemeanor.

§ 60. Communicating same.] Every person who, not being a candi-
date, communicates any offer made in violation of the last section,
to any person, with intent to induce him to vote for, or to procure, or
aid in procuring the election of the candidate making the offer, is
guilty of misdemeanor.

§ 61. Money for elections.] Every person, who with intent to

5 remote the election, either of himself or of any other person, or can-
idate, either:

1. Furnishes, or engages to pay or deliver any money or property,
for the purpose of procuring the attendance of voters at the polls, or
for the purpose of compensating any person for procuring attendance
of voters at the polls, except for the conveyance of voters who are
sick, poor, or infirm ; or,

2. Furnishes, or engages to pay or deliver any money or property,
for any purpose intended to promote the election of any candidate,
except for the expi^nses of holding ahd conducting public meeftiAgs
for the discussion of public questions, and of printing and circulating
ballots, handbills, and other papers previous to such election, is guilty
of misdemeanor.

§ 62. Defrauding elector in his vote,] Every person who fraud-
ulently alters the ballot of any elector, or substitutes one ballot for
another, or furnishes any elector with a ballot containing more than
the proper number of names, or who intentionally practices any fraud
upon any elector to induce him to deposit a ballot as his vote, and to
have the same thrown out and not counted, or otherwise to defraud
him of his vote, is guilty of misdemeanor.

§ 63. Obstructing ELECTORS.] Every person who willfully and with-
out lawful authority obstructs, hinders, or delays, any elector on his way
to any poll where an election shall be held, is guilty of a misde-
meanor.

Penal Code. Crimes Defined. 703

§ 64. Double voting or offer.] Every person who votes more
than once at any election, or who offers to vote after having once
voted, either in the same or in another election district, shall be punished
by fine not exceeding two hundred dollars, or by imprisonment in the
<^ounty jail not exceeding one year.

§ 65. Unqualified voting.] Every person knowing himself not to
be a qualified voter, who votes, or oflFers to vote at any election, shall
be punished by fine not exceeding two hundred dollars, or by imprison-
ment in the county jail not exceeding six months.

§ 66. Procuring same.] Every person who procures, aids, assists,
•counsels, or advises another to give his vote, knowing that such person
is disqualified, shall be punishea by fine not exceeding five hundred
dollars, nor less than fifty dollars, and by imprisonment in the county
jail not exceeding one year.

§ 67. Same.] Every person who procures or counsels another to
•enter any town, ward, or election district for the purpose of giving his
vote at an election, knowing that such person is not entitled so to
vote, is guilty of a misdemeanor.

§ 68. Voting out of precinct.] Every person who, at any election,
knowingly votes or offers to vote in any election district in which he
does not reside, or in which he is not authorized bv law to vote, is
guilty of a misdemeanor.

§ 69. Convicted felon.] Every person who having been convicted
of any bribery, or felonj^ thereafter offers to vote at any election with-
out having been pardoned and restored to all the rights of a citizen, is
guilty of a misdemeanor. "•

§ 70. Name registered improperly.] Every person who causes his
name to be registered as that of an elector, upon any registry of
voters authorized by law to be kept in any town, city, or election dis-
trict of this territory, knowing that he is not a qualified voter within
the territorial limits covered by such registry, is punishable by
imprisonment in the territorial prison not less than one year.

§ 71. Personating registered voters.] Every person who, within
any city, town, or election district in this territorj^ in which a registry
of qualified voters is by law authorized to be kept, falsely personates
a registered voter, and in such personating offei-fe to vote at any elec-
tion, is punishable by imprisonment in the territorial prison not ICvSs
than one year.

§ 72. False statements upon.] Every person whd, at the time of
requesting his name to be registered as that of a qualified voter, upon
any registry of voters authonzed by law to be kept in any city, town,
or election district of this territory, or at the time of offering his vote
at any election knowingly makes any false statement, or employs any
fatee representation, or false pretense, or token, to procure his name
to be registered or his vote to be received, is guilty of a misdemeanor.

§ 73. What false statement.] A false statement, representation,
or token, made or used in the presence and to the knowledge of a
person requesting his name to be registered, or offering his vote, is to
be deemed made by himself, if it appears that it was made or used in
.•support of his claim to be registered, or to vote, that he knew it to ])e
false, and suffered it to pass uncontradicted.

704 Crimes Defined. Penal Code^

§ 74. DiSTUBBANCE OF PUBLIC MEETINGS.] Every persou who willfully
disturbs or breaks up. any public meeting of electors and others, law-
fully being held for the purpose of considering public questions, is^
guilty of a misdeamenor.

§ 75. Preventing public meetings.] Every person who, by threats,
intimidations, or unlawful violence, willfully hinders or prevents elec-
tors from assembling in public meeting for the consideration of public
questions, is guilty of a misdemeanor.

§ 76. Preventing attendance.] Every person who makes use of
any force or violence, or of any threat to do any unlawful act, as a
means of preventing an elector from attending any public meeting^
lawfully held for the purpose of considering any public questions, ia
guilty of a misdemeanor.

§ 77. Intimidation and bulldozing.] Every person who willfully,
by unlawful arrest, by force and violence, or by threats or intimida-
tion, prevents or endeavors to prevent an elector from freely giving-
his vote at any election^ or employs either of such means to hinder
him from voting, or to cause him to vote for any person or candidate,
shall be punished by fine not exceeding one thousand dollars, and not
less than fifty dollars.

§ 78. Violence, threats, &c.] Every person who procures or
endeavors to procure the vote of any elector, or the influence of any
person or [over] other electors, at any election, for himself or for or
against any candidate, by means of violence, threats of violence, or
threats of withdrawing custom or dealiijgs in business, or trade, or
enforcing the payr»ent of debts, or bringing a suit or criminal prosecu-
tion, or any otner threat of injury, to be inflicted by him, or by his^
means or procurement, shall be punished by fine not exceeding one
thousand dollars, and by imprisonment in the county jail not exceed-
ing six months.

§ 79. Disobedience to judges.] Every person who willfully diso-
beys a lawful command of a judge or board of judges of any election,
given in the execution of their duty as such, at an election, is guilty
of a misdemeanor.

§ 80. Violence which impedes elections.] Every person who is
guilty of any riotous conduct, or who causes any disturbance or breach
of the peace, or uses any disorderly violence, or threats of violence,
whereby any election is impeded or hindered, or whereby the law-
ful proceedings of the judges or canvassers at such election, in the
discnarge of their du^, are interfered with, is guilty of a misdemeanor.

§ 81. Summary arrest therefor.] Whenever at an election any
person refuses to obey the lawful command of the board of judges, or
by any disorderly conduct in their presence interrupts or disturbs their
proceedings, they may make an order directing the sheriflf, or any
constable of the county, or one or more special constables to be
appointed by them, to take the person so offending into custody, and
detain him until the final canvass of the votes snail be completed.
But such order shall not prohibit the person taken into custody from
voting at the election.

§ 82. No defense.] . The fact that any person, offending against the
provisions of the preceding section, was taken into custody and

J^enal Code. Crimes Defined. 705

•detained, as therein authorized, forms no defense to a prosecution for
the offense committed, under any provisions of this code.

§ 83. Destroying ballots or boxes.] Every person who willfully
breaks or destroys, on the day of any election, or before the canvass is
•completed, any ballot box used or intended to be used at such election,
or defaces, injures, destroys, or conceals, any ballot which has been
deposited in any ballot box at an election, and has not already been
^counted, or canvassed, or any poll list used or intended to be used at
such election, is guilty of a felony.

§ 84. False poll list.J Every clerk of the poll at any election, who
■willfully keeps a false poll list, or knowingly inserts in his poll list any
false statement, is guilty of a misdemeanor. •

§ 85. Misconduct of judges.] Every judge of an election who will-
fully excludes any vote duly tendered, knowing that the person oflfer-
inff the same is lawfully entitled to vote at such election, or who
^willfully receives a vote from any person who has been duly challenged
in relation to his right to vote at such election, without exacting from
«uch person such oath or other proof of qualification as may be
required by law, or who willfully omits to challenge any person offer-
ing to vote whom he knows or suspects not to be duly entitled to vote,
and who has not been challenged by any other person, is guilty of a
misdemeanor.

§ 86. Falsely canvassing or geetifyino.] Every judge of any
•election, member of any board of canvassers, messenger, or other
officer authorized to take part in or perform any duty in relation to any
•canvass or official statement of the votes cast at any election, who will-
fully makes any false canvass of such votes, or makes, signs, publishes,
or delivers any false return, of such election, knowing the same to be
false, or willfully defaces, destroys, .or conceals any statement or
•certiiHcate entrusted to his care, is guilty of a misdemeanor.

§ 87. Bribing election officer.] Every person who gives or offers
.a bribe to any judge, clerk, canvasser, or other 'officer oi an election,
^s a consideration for some act done or omitted to be done contrary to
his official duty, in\relation to such election, shall be punished by fine,
not exceeding five hundred doUai-s, and imprisonment in the county
jail not exceeding six months.

§ 88. Disfranchised.] Any person guilty of either of the offenses
mentioned in sections fifty-six and fifty-seven shall thereafter be
forever disfranchised and rendered ineligible to any office of trust
or profit within the territory, including that of delegate to congress.

§ 89. Witness not excused — exempt.] No person shaul be
exQused from testifying upon a prosecution for an onense mentioned
in section fifty-seven, upon the ground that his statement might tend
to criminate himself, but any person so testifying against the
other party shall thereafter be exempt from punishment for such
offense mentioned in said section.

§ 90. Election defined.] The word "election," as used in this
chapter, designates only elections had within this territory for
the purpose of enabling electors as such, j(o choose some public
officer or officers under tne laws of this territory, or of the iFnited
States.

4^

706 Crimes Defined. Penal Code,

§ 91. Irregularities no defense.] Irregularities or defects in the
mode of noticing, convening, holding or conducting an election author-
ized by law, form no defense to a prosecution for a violation of the
provisions of this chapter.

§ 92. Rights.] Nothing iti this chapter shall be construed to
authorize the punishment of any persons who, by authority of law^
may interfere to ^event or regulate an election which has been
unlawfully noticed or convened, or is being, or is about to be unlaw-
fully conducted.

§ 93. Submission of questions.] Every act which by the provisions
of this chapter is made criminal when committed with reference to
the election of a candidate, is equally criminal when committed with
reference to the determination of a question submitted to electors to
be decided by votes cast at an election.

§ 94. Good faith.] Upon any prosecution for procuring, offering
or casting an illegal vote, the accused may give in evidence any facte
tending to show that he honestly believed, upon good reason, that the
vote complained of was a lawful one; and the jury may take such
facts into consideration in determining whether the acts complained
of were knowingly done or not.

§ 95. Selling liquors on election day.] Every person who sells^
gives away, or disposes of any intoxicating liquors as a beverage, on
the day of any general election. Or special or local election in the
town, city, or county, where held, shall be deemed guilty of a mis-
demeanor, and upon conviction, shall be punished by imprisonment in
the county jail not to exceed twenty days, and by fine not exceeding
one hundred, and not less than fifty dollars, such fine to go to the
county general fuiid.

CHAPTER VI.

of crimes by and against the executive power of the territory.

96. Usurping office.] Every person who executes any of the
functions of a public oflBce without having taken and duly filed the
required oath of office, or without having executed and • dulj'^ filed
the required security, is guilty of a misdemeanor; and in addition
to the punishment prescribed therefor, he forfeits his right to the
office.

§ 97. Acts op officer de facto.] The last section shall not be
construed to effect the validity of acts done by a person exercising the
functions of a public office in fact, where other persons than himself
are interested in maintaining the validity of such acts.

§ 98. Falsely assuming office.] Every person who shall falsely
assume or pretend to be any territorial, county, or township officer, or
who shall knowingly take upon himself to act as such, or to require
any person to act as such, or assist him in any matter pertaining to
such office, shall be punished by imprisonment in the county jail, not
more than two years nor less than three months, and by fine not
exceeding five hundred nor less than fifty dollars.

Penal Code. Crimes Defined. 707

§ 99. Giving oe offering bribes.] Every person who gives or offers
any bribe to any executive officer of this territory, with . intent to
influence him in respect to any act, decision, vote, opinion, or other
proceedings of such officer, is punishable by imprisonment in the terri-
torial prison not exceeding ten years, or by a fine not exceeding five
thousand dollars, or both.

§ 100. Asking or receiving bribes.] Every executive officer or
person elected or appointed to executive office who asks, receives, or
agrees to receive, any bribe upon any agreement or understanding
that his vote, opinion, or action uj)on any matter then pendine, or
which may by law be brought before him in his official capacity, snail
be influenced thereby, is punishable by imprisonment in the territorial

Srison not exceeding ten years, or by a fine not exceeding five thousand
ollars, or both; and in addition thereto^ forfeits his office and is for-
ever disqualified from holding any public office under this territory.

§ 101. Preventing officer's duty.] Every person who attempts,
by means of any threat or violence, to deter or prevent any executive
officer from performing any duty imposed upon such officer by law, is
guilty of a misdemeanor.

§ 102. Resisting officers.] Every person who knowinglj'' resists,
by the use of force or violence, any executive officer in the perform-
ance of his duty, is guilty of a misdemeanor.

§ 103. Taking excessive fees.] Every executive officer who asks
or receives any emolument, gratuity, or reward, or any promise of any
emolument, gratuity, or reward, excepting such as may be authorized
by law, for doing any official act, is guilty of a misdemeanor.

§ 104. Taking reward for omitting or delaying official acts.]
Every executive officer who asks or receives any emolument, gratuity,
or reward, or any promise of any emolument, gratuity, or reward, for
omitting or deferring the performance of any official dutj^ is guilty of
a misdemeanor.

§ 105. Pees for service not rendered.] Every executive officer
who asks or receives any fee or compensation for any official service
which has not been actually rendered, except in cases of charges for
prospective costs, or of fees demandable in advance in the cases
allowed by law, is guilty of a misdemeanor.

§ 106. Taking unlawful reward.] Every officer of this territory
who asks or receives any compensation, fee, or reward of any kind for
any service rendered, or expense incurred in procuring from the gover-
nor of this territory a demand upon the executive authority of a state
or territory of the United States, or of a foreign government, for the
surrender of a fugitive from justice, or of any service rendered or
expense incurred in procuring the surrender of such fugitive, or of
conveying him to this territory, or for detaining him therein, except
upon an employment by the governor of this territory, and upon an
account duly audited and paid out of the territorial treasury, is guilty
of a misdemeanor.

§ 107. Buying appointments to office.] Everjr person who gives, or
a^ees, or offers to give any gratuity or reward in consideration that
himself or any other person shall be appointed to any public office, or
shall be permitted to, or to exercise, perform, or discharge the prerog-
atives or duties of any office, is punished by imprisonment m the

708 Crimes Defined. Penal Code,

county jail, not less than six months nor more than two years, or by a
fine of not less than two hundred dollars, or more than one thousand
dollars, or both.

§ 108. Selling same.] Every person who, directly or indirectly,
asks or receives, or promises to receive, any gratuity or reward, or any
promise of a gratuity or reward, for appointing another person, or
procuring for another person an appointment to any public office, or
any clerkship, deputation, or other subordinate position in any public
office, is punishable by imprisonment in the county jail; not less than
six months nor more than two jiears, or by a fine not less than two
hundred dollars, nor more than one thousand dollars, or both.

§ 109. Rewards for deputation.] Every public officer who, for any
gratuity or reward, appoints another person to a public office, or per-
mits another person to exercise, perform, or discharge any of the pre-
rogatives or duties of his office, is punishable by imprisonment in the
county jail, not less than six months nor more than two years, and by
a fine of not less than two hundred dollars, or more than one thousand
dollars; and in addition thereto he forfeits his office.

§ 110. Unlawful deputation void.] Every erant or deputation
made contrary to the provisions of the two preceding sections is void:
but official acts done before a conviction for any offense prohibited by
those sections, shall not be deemed invalid in consequence of the
invalidity of such grant or deputation.

§ 111. EXERCISINO functions AFTER TERM.] Evory pOTSOU, who,

having been an executive officer, willfully exercises any of the func-
tions of his office after his term of office has expired, and a successor
has been duly elected or appointed, and has qualified in his place, and
he has notice thereof, is guilty of a misdemeanor.

§ 112. Refusal to surrender books.] Every person, who, ha\'ing
been an executive officer of this territory, wrongfully refuses to sur-
render the official seal, or any of the books and papers appertaining
to his office, to his successor, who has been duly elected or appointed,
and has duly qualified, and has demanded the surrender of tne books
and papers of such office, is guilty of a misdemeanor.

§ 113. Administrative officers.] The various provisions of this
chapter which relate to executive officers appiy, in relation to
administrative officers, in the same manner as if administrative and
executive officers were both mentioned together.

CHAPTER VII.

OP 0RIME8 AGAIN8T THE LEGISLATIVE POWER.

§ 114. Preventing meeting of legislature.] Every person, who
willfully and by force or fraud prevents thelegislatureof this territory,
or either of the houses composing it, or anv of the members thereof,
from meeting or organizing, is punishable by imprisonment in the
territorial prison not less than five nor more than ten years, or by a
fine of not less than five hundred dollars nor more than two thousand
dollars, or both.

J^enal Code. Crimes Dbfinbd. 709

§ 115. Disturbing the legislature.] Every person, who willfully
disturbs the le^slature of this territory, or eitner of the houses com-
posing it, while in session, or who commits any disorderly conduct in
the immediate view and presence of either house of the legislature,
tending to interrupt its proceedings or impair the respect due to its
authority, is guilty of a misdemeanor.

§ 116. Compelling ADJOURNMENT.] Every person who willfully and
by force or fraud compels, or attempts to compel, the legislature of this
territory or either of the houses composing it, to adjourn or disperse,
is punishable by imprisonment in the territorial prison not less than
five nor more than ten years, or by fine of not less than five hundred
dollars, nor more than two thousand dollars, or both.

§ 117. Intimidating a member.] Every person who willfully, by
intimidation or otherwise, prevents any member of the legislature of
this territory, from attending any .session of the house of wnich he is
a memberj or of any committee thereof, or from giving his vote u]3on
any question which may come before such house, or from performing
any other official act,, is guilty of a misdemeanor.

§ 118. Compelling hoijse to perform oh omit act.] Every person
who willfully compels or attempts to compel either of the houses com-
posing the legislature of this territory to pass, amend, or reject any
bill, or resolution, or to grant or refuse any petition, or to perform or
omit to perform any other official act, is punishable by imprisonment
in the territorial prison not less than five, nor more than ten years, or
by a fine of not less than five hundred dollars, nor more than two
thousand dollars, or both.

§ 119. Altering draft of bill.] Every person who fraudulently
alters the draft of any bill or resolution which has been presented to
either of the houses composing the legislature, to be passed or adopted,
with intent to procure it to be passed or adopted by either house, or
certified by the presiding officer of either house, in language different
from that intended by such house, is guilty of a felony.

§ 120. Altering engrossed copy.] Every person who fraudulently
alters the engrossed copy or enrollment of any bill which has been
passed by the legislature of this territory, with intent to procure it to
be approved by the governor or certified by the secretary of the terri-
tory, or printed or published by the printer of the statutes in language
different from that in which it was passed by the legislature, is guilty
of felony.

§ 121. Giving bribes to members.] Every person who gives or
offers to give a bribe to any member of the legislature, or attempt,
directly or indirectly, b^ menace, deceit, suppression of truth, or any
other corrupt means, to influence a member m riving or withholding
his vote, or in not attending the house of which he is a member, or
any committee thereof, is punishable by imprisonment in the terri-
torial prison not exceeding ten years, or by fine not exceeding five
thousand dollars, or both.

§ 122. Receiving bribes by members.] Every member of either of
the houses composing the legislature of this territory, who asks,
receives, or agrees to receive, any bribe upon any understanding that
his official vote, opinion, judgment, or action shall be influenced
thereby, or shall be given in any manner or upon any particular side

710 Crimes Defined. Penal Code.

of any (juestion or matter upon which he may be required to act in
his official capacity, or who gives, or offers, or promises to give any
official vote in consideration that another memoer of the legislature
shall give any such vote, either upon the same or another question, is
punishable by imprisonment in the territorial prison not exceeding
ten years, or by fine not exceeding five thousand dollars, or both.

§ 123. Witness refusing to attend.] Every person who, being
duly summoned to attend as a witness before either house of the
legislature, or any committee thereof, authorized to summon witnesses,
refuses or neglects without lawful excuse to attend pursuant to such
summons, is guilty of a misdemeanor.

§ 124. Refusing to testify.] Every person who, being present
before either house of the legislature or any committee thereof author-
ized to summon witnesses, willfully refuses to be sworn or affirmed,
or to answer any material and proper question, or to produce, upon
reasonable notice, any material and proper books, papers, or documents
in his possession or under his control, is giiilty of a misaemeauor.

§ 125. Members forfeiture of office.] The conviction of a mem-
ber of the legislature of either of the crimes defined in this chapter,
involves as a consequence, in addition to the punishment prescribed
by this code, a for^iture of his office, and disqualifies him from ever
afterwards holding any office under this territory.

CHAPTER YIII.

OF crimes against public justice, bribery, and corruption.

§ 126. Bribes to judges, jurors, referees, &o.] Every person
who gives, or offers to give, a bribe, to any judicial officer, juror,
referee, arbitrator, umpire, or assessor, or to any person who may be
authorized by law to hear or determine any question or controversy,
with intent to influence his vote, opinion, or aecision upon any matter
or question which is or may be brought before him for decision, is pun-
ishable by imprisonment in the territorial prison not exceeding ten
years, or by a fine not exceeding five thousand dollars, or both.

§ 127. Receiving bribes by judicial officers.] Every judicial
officer of this territory who asks, receives, or agrees to receive, any
bribe upon any agreement or understanding that his vote, opinion, or
decision upon any matter or question which i& or may be brought
before him for decision shall be thereby influenced, is punishable by
imprisonment in the territorial prison not exceeding ten years, or bjr a
fine not exceeding five thousand dollars, or both; and in addition
thereto forfeits his office, and is foriBver disqualified from holding any
public office under this territory.

§ 128. By jurors, referees, &c.] Everv juror, referee, arbitrator,
umpire, or assessor, and every person authorized by law to hear or
determine any question or controvei*sy, who asks, receives, or agrees
to receive any bribe upon any agreement or understanding that his
vote, opinion, or decision, upon any matter or question wnich is or

Penal Code. Cbimks Defined. 711

*

may be brought before him for decision shall be thereby influenced,
is guilty of felony.

f 129. Misconduct by jueors, ac] Every juror, or person drawn
or summoned as a juror, or chosen arbitrator, or umpire, or appointed
referee, who either:

1. Makes any promise or agreement to give a verdict for or against
any party; or,

2. Willfully permits any communication to be made to him, or
receives any book, paper, instrument, or information relative to any
cause pending before him, except according to the regular course of
proceeding upon the trial of such cause.

Is guilty of a misdemeanor.

I 130. AccEPTiNO GUFTS FEOM PARTIES,] Evory judicial officer, juror,
referee, arbitrator, or umpire, who accepts any gift from any person,
knowing him to be a party in interest, or the attorney or counsel of
any party in interest, to any action or proceeding then pending, or
about to be brought before him, is guilty of a misdemeanor.

§ 131. Gifts defined.] ^ The word "gift" in the foregoing section
shall not be taken to include property received by inheritance, by will,
or by gift in view of death,

§ 132. Attempts to influence juroes, ac] Every person who
attempts to influence a juror, or any person summoned or drawn as a
juror, or chosen an arbitrator or appointed a referee, in respect to his
verdict, or decision of any cause or matter pending, or about to be
brought before him, either:

1. By means of any communication, oral or written, had with him,
except in the regular course of proceedings upon the trial of the
cause;

2. By means of any book, paper, or instrument, exhibited otherwise
than in the regular course oi proceedings upon the trial of cause ;

3. By means of any threat or intimidation ;

4. By means of anj^ assurance or promise of any pecuniary or other
advantage; or,

5. By publishing any statement, argument, or observation relating
to the cause.

Is guilty of a misdemeanor,

§ 133. Drawing jurors fraudulently.] Every person authorized
by law to assist at the drawing of any jurors, to attend any court, who
willfully puts or consents to the putting upon any list of jurors as
having been drawn, any name which shall not have been arawn for
that purpose in the manner prescxibed by law; or, who omits to place
on such list any name that shall have been drawn in the manner i)re-
scribed by law; or^ who signs or certifies any list of jurors as having
been drawn w^hich was not drawn according to law; or, who is guilty
of any other unfair, partial, or improper conduct in the drawing of
any such list of jurors, is guilty of a misdemeanor.

§ 134. Misconduct by officers of jury.] Every officer to whose
charge any juror is committed by any court or magistrate, who
negligently or willfully permits them, or any one of them, either:

1. To receive any communication from any person;

2. To make any communication to any person;

3. To obtain or receive any book or paper, or refreshment; or.

712 « Crimes Defined. Penal Code^

4. To leave the jury room without the leave of such court, or magis-
trate first obtained,
Is guilty of a misdemeanor.

CHAPTER IX-

OF RESCUES.

§ 135. Rescuing prisoners.] Every person, who by force or fraud
rescues, or attempts to rescue, or aids another person in rescuing or in
attempting to rescue any prisoner from any officer or other person
having him in lawful custody, is punishable as follows:

1. If such prisoner was in custody ujjon a charge of conviction of
felony, by imprisonment in the tetritorial prison ror not less than ten
years.

2. If such prisoner was in custody otherwise than upon a charge or
conviction of felony, by imprisonment in a county jail not exceeding^
one year, or by fine not exceeding five hundred dollars, or by both
such fine and imprisonment.

^ 136. Retaking goods from custody.] Every person who willfully
injures or destroys, takes or attempts to take, or assists any other per-
son in taking or attempting to take from the custody of any officer or
person, any personal property which such officer or person has in
charge under any process of law, is guilty of a misdemeanor.

CHAPTER X.

of escapes, and aiding therein.

§ 137. Re- arrest of escaped prisoners.] Every prisoner confined upon
conviction for a criminal offense, who escapes from prison, may be pur-
sued, retaken and imprisoned a^in, notwithstanding the term for
which he was sentenced to be imprisoned may have expired at the
time when he is retaken, and he shall remain so imprisoned, until
tried for such escape, or discharged on a failure to prosecute therefor.

§ 138. Escape from territorial prison.] Every prisoner confined
in the territorial prison for a term less than for life, who by force or
fraud escapes therefrom, is punishable by imprisonment in such prison
for a term not exceeding five years, to commence from the expiration
of the original term of his imprisonment.

§ 139. Attempt to escape.] Every prisoner confined in the terri-
torial prison for a term less than for life, who attempts by force or
fraud, although unsuccessfully, to escape from such prison, is guilty of
felony.

§ 140. Escape from other prison.] Every prisoner confined in any
other than the territorial prison, who by force or fraud escapjes there-
from, is punishable by imprisonment in the territorial prison, not

Penal Code. Crimes Dbfinid. 713

exceeding two years, or in a county jail not exceeding one year, to
commence from the expiration of the original term of his imprison-
ment.

§ 141. Attempt to escape.] Every prisoner confined in any other
prison than the territorial prison, who attempts by force or fraud,
although unsuccessfully, to escape therefrom, is punishable by impris-
onment in a county jail, not exceeding one year, to commence nrom
the expiration of the original term of his imprisonment.

§ 142. Assisting prisoner to escape.] Every person who willfully,
by any means whatever, assists any prisoner confined in any prison to
escape therefrom, is punishable as follows:

1. If such prisoner was confined upon a charge o» conviction of
felony, by imprisonment in the territorial prison not exceeding ten
years.

2. If such prisoner was confined otherwise than upon a charge or
conviction of felony, by imprisonment in the county jail not exceeding
one year, or by fine not exceeding five hundred dollars, or both.

§ 143. Carrying into prison things to aid escape.] Every person
who carries or sends into any prison anything useful to aid any pris-
oner in making his escape, with intent thereby to facilitate the escape
of any prisoner confined therein, is punishable as follows:

1. If such prisoner was confined upon any charge or conviction of
felony, by imprisonment in the territorial prison not exceeding ten
years.

2. If such prisoner was confined otherwise than upon a charge or
conviction of felony, by imprisonment in a county jail not exceeding
one year, or by a fine of five hundred dollars, or both.

§ 144. Concealing escaped prisoners.] Every person who willfully
and knowingly conceals any prisoner, who, having been confined in
prison upon a charge, or conviction of misdemeanor, has escaped there-
from, is guilty of misdemeanor.

§ 145. Assisting escape from officer.] Every person who willfully
assists any prisoner in escaping, or attempting to escape, from the
custody of any officer or person having the lawful charge of such
prisoner under any process of law, or under any lawful arrest, is guilty
of a misdemeanor.

§ 146. Prison defined.] The term prison in this chapter includes
territorial prisons, county jails, and every place designated by law for
the keeping of persons held in custody under process of law or under
any lawful arrest.

§ 147. Prisoner defined.] The term prisoner in this chapter
includes every person held in custody under process of law, issued
from a court of competent jurisdiction, whether civil or criminal, or
under any lawful arrest.

714 Cbimbs Dbfinbd. Penal Code.

CHAPTER XL

PORGING, STEALING, MUTILATING AND FALSIFYING JUDICIAL AND PUBLIC

RECORDS AND DOCUMENTS.

§ 148. Larceny, destruction, &c., of records.] Every clerk,
register, or otter officer having the custody of any record, map, or
book, or of any paper or proceeding of any court of justice, filed or
deposited in any public office, v^ho is guilty of stealing, willfully
destroying, mutilating, defacing, altering or falsifying, or fraudently
removing or secreting such record, map, book, paper, or proceeding,
or vvrho permits any other person so to do, is punishable by impri^^on-
ment in the territorial prison not exceeding hve years, and in addition
thereto forfeits his office.

§ 149. By other persons.] Every person not an officer such as is
mentioned in the last section, who is guilty of any of the acts specified
in that section, is punishable by imprisonment in the territorial prison
not exceeding five years, or in a county jail not exceeding one year, or
by a fine not, exceeding five hundred dollars, or by both such fine and
imprisonment.

§ 150. Offering forged or false instruments for record.] Every
person who knowingly procures or offers any false or forged instrument
to be filed, registered, or recorded in any public office within this terri-
tory, which instrument, if genuine, might be filed, or registered, or
recorded under any law of this territory or of the United States, is
guilty of felony.

CHAPTER XII.

PERJURY AND BUBORNATION OF PERJURY.

§ 151. Perjury.] Every person who, having taken an oath that he
will testify, declare, depose, or certify truly before any competent
tribunal, officer, or person, in any of the cases in which such an oath
may by law be admmistered, willfully and contrary to such oath, states
any material matter which he knows to be false, is guilty of perjury.

§ 152. Oath.] The term " oath,'' as used in the last section, includes
an affirmation, and every other mode of attesting the truth of that
which is stated, which is authorized by law.

§ 153. Oath of office.] So much of an oath of office as relates to
the future performance of official duties is not such an oath as is
intended by the previous sections.

§ 154. Irregularities no defense.] It is no defense to a prosecu-
tion for perjury that the oath was administered or taken in an
irregular manner.

§ 155. Incompetency — same.] It is no defense to a prosecution for
perjury that the accused was not competent to give the testimony,
deposition, or certificate of which falsehood is alleged. It is sufficient
that he actually was required to give such testimony, or made such
deposition or certificate.

Penal Code. Crimes Defined. 715

§ 156. Materially not necessary.] It is no defense to a prosecu-
tion for perjury that the accused did not know the materiality of the
false statement made by him; or that it did not in fact affect the
proceeding in or for which it was made. It is sufficient that it was
material, and might have been used to affect such proceeding,

§ 157. Making depositions.] The making of a deposition or cer-
tificate is deemed to be complete, within the provisions of this chapter,
from the time when it is delivered by the accused to any other person
with intent that it be uttered or published as true.

§ 158. False statement.] An unqualified statement of that which
one does n,ot know to be true is equivalent to a statement of that
which one knows to be false.

§ 159. Punishment of perjury.] Perjury is punishable by imprison-
ment, in the territorial prison as ' follows :

1. When committed on the trial of an indictment for, felony, by
imprisonment not less than ten years.

2. When committed on any other trial or proceeding in a court of
justice, by imprisonment for not more than ten .years.

3. In all other cases by imprisonment not more than five years.

§ 160. Summary committal of witnesses.] Whenever it appears
propable to any court of record that any person who has testified in
any action or proceeding iu such court has committed perjury, such
court may immediately commit such person, by an order or process for
that purpose, to prison, or take a recognizance, with sureties, for his
apjpearing and answering to an indictment for perjury.*

§ 261. Witnesses bound over to appear.] Such court shall there-
upon bind over the witnesses to establish . such perjury to appear
at the proper court to testify before graAd jury, and upon the trial, in
case an indictment is found for such perjury, and shall also cause
immediate notice of such commitment or recognizance, with the
names of the witnesses so bound over, to be given to the district
attorney of the county.

§ 162. Document may be retained.] If, upon the hearing of such
action or proceeding in which such perjury nas probably been com-
mitted, any papers or documents produced by either party shall be
deemed necessary to be used on the prosecution for such perjury, the
court may, by order, detain such papers or documents from the party
producing them, and direct them to be delivered to the district
attorney.

§ 163. Subornation of perjury defined.] Every person who
willfully procures another person to commit any perjury, is guilty of
subornation of perjury.

§ 164. Punishment of.] Every person guilty of subornation of
perjury is punishable in the same manner as he would be if person-
ally guilty of the perjury so procured.

§ 165. Convict of perjury, incompetent.] No person who has been
convicted of perjury, or of subornation oi perjury, shall thereafter
be received as a witness in any action, proceeding, or matter whatever
upon his own behalf; nor in any action or proceeding between adverse
parties, against any person who shall object thereto, until the judg-
ment against him has been reversed, fiut where such person has
been actually received as a witness contrary to the provisions of this

716 Crimss Dbfined. Penal Code,

section, his incompetency shall not prejudice the rights, innocently
acquired, of any other person claiming under the proceeding in which
sucn person was so received.

CHAPTER XIIL

FALSIFYING EVIDENCE.

§ 166. Offering false evidence.] Every person who, upon any
trial, proceeding, inquiry, or investigation wnatever, authorized bv
law, offers in evidence, as genuine, any book, paper, document, recora,
or other instrument in writing, knowing the same to have been forged,
or fraudulently altered, is punishable in the same manner as the
forging or false alteration oi such instrument is made punishable by
the provisions of this code.

§ 167. Deceiving a witness.] Every person who practices an>
fraud or deceit, or knowingly makes or exhibits any false statement^
representation, token, or writing, to any witness or person about to be
called as a witness, upon any trial, proceeding, inquiry, or investiga-
tion whatever, proceeding by authority of law, with intent to affect
the testimony of such witness, is guilty *of a misdemeanor.

§ 168. Prbpabing false evidence.] Every person guilty of falsely
preparing any book, paper, record, instrument in writing, or other
matter or thing, with intent to produce it, or allow it to be produced,
as genuine upon any trial, proceeding, or inquiry whatever, authorized
by law, is guilty of felony.

§ 169. Destroying EViDENCE.] Every person who, knowing that
any book, paper, record, instrument in writing, or other matter or
thin^, is about to be produced in Evidence upon any trial, proceeding,,
inquiry, or investi^tion whatever, authorized by law, willfully
destroys the same, with intent thereby to prevent the same from being
produced, is guilty of a misdemeanor.

§ 170. Preventing witnesses attending.] Every person who
willfully prevents or dissuades any person who has been duly sum-
moned or subpoenaed as a witness from attending, pursuant to the
command of the summons or subpoena, is guilty of a misdemeanor.

§ 171. Bribing witnesses.] Every person who gives, or offers, or
promises to give, to any witness or person about to be called as a
witness, any bribe, upon any understanding or agreement that the tes-
timony of such witness shall be thereby influenced, or who attempts
by any other means fraudulently to induce any witness to give false
testimony, is guilty of a misdemeanor.

OHAPTEE XIV.

OTHER offenses AGAINST PUBLIC JUSTICE.

§ 172. Injury to records and embezzlement.] Every sheriff,
coroner, clerk of a court, constable, or other ministerial officer,
and every deputy or subordinate of any ministerial officer, who either:

Penal Code. Crimes Defined. 717

1. Mutilates, destroys, conceals, erases, obliterates or falsifies any
record or paper appertaining to his office; or,

2. Fraudulently appropriates to his own use, or to the use of another
X)erson, or secretes with intent to appropriate to such use, any money,
^evidence of debt or other property entrusted to him in virtue of his
office,

Is guilty of felony.

§ 173. Permitting escapes by same.] Every sheriflF, coroner,
'Clerk of a court, constable, or other ministerial officer, and every
•deputy or subordinate of any ministerial officer, who either:

1. Allows any person lawfully held by him in custody to escape or go
5it large, except as may be permitted by law; or,

2. Receives any gratuity, or reward, or any security or promise of one,
to procure, assist, connive at, or permit any prisoner m his custody
to escape, whether such escape is attempted or not; or,

3. Commits any unlawful act tending to hinder justice,
Is guilty of a misdemeanor.

§ 174. Refusing to receive prisoner.] Every officer who, in
violation of a duty imposed upon him by laiv as such officer to receive
into his custody any person, as a prisoner, willfully neglects or refuses
so to receive such person into his custody, is guilty of a misde-
meanor.

§ 175. Delaying to take before magistrate.] Every public officer
or other person having arrested any person upon any criminal
<3harge, who willfully delays to take such person before a magistrate
having jurisdiction to take his examination, is guilty of a misde-
meanor.

§ 176. Arrest without lawful authority.] Every public officer
or person pretending to be a public officer, who under the pretence or
oolor of anj' process or other legal authority arrests any person, or
detains him against his will, or seizes or levies, upon any property, or
-dispossesses, any one of any lands or tenements, without due and legal
process, is guilty of a misdemeanor.

§ 177. Misconduct executing search.] Every peace officer, who, in
executing a search warrant, willfully exceeds his authority, or
exercises it with unnecessary severity, is guilty of a misdemeenor.

§ 178. Refusing to aid officer.] Every pei'son, who, after having
been lawfully commanded to aid any officer in arresting any person,
or in retaking any person who has escaped from legal custody, or in
executing any legal process, willfully neglects or refuses to aid such
officer, is guiltj^ of a misdemeanor.

§ 179. Refusing to make arrest.] Every person, who, after having
been lawfully commanded by any magistrate to arrest another person,
willfully neglects or refuses so to do, is guilty of a misdemeanor.

§ 180. Resisting execution of process.] Every person, who, after
proclamation issued by the governor declaring any county to be in a
state of insurrection, resists, or aids in resisting, the execution of pro-
cess in the county declared to be in a state of insurrection, or who
aids or attempts the rescue or escape of another from law^fal custody
or confinement, or who resists, or aids in resisting, a force ordered out
by the governor to quell or suppress an insurrection, is punishable by
imprisonment in the territorial prison for not less than two years.

718 Crimes Defined. Penal Code.

§ 181. OBSTBCCTiNa OFFICER IN DUTY.] Every person who will-
fully delays or obstructs any public officer in the discharge, or attempt
to discharge any duty of his oflBce, is guilty of a misdemeanor.

§ 182. Extra judicial oaths.] Every person who takes an oath
before an officer or person authorized to administer judicial oaths^
except when such oath is required or authorized by law, or is required
by the provisions of some contract as the basis of. or in proof of, a
claim, or when the same has been agreed to be received by some per-
son as pi:oof of any fact, in the performance of any contract, obliga-
tion, or duty, instead of other evidence, is guilty of a misdemeanor.

§. 183. Administering same.] Every officer or other person who
administers an oath to another person, or who makes and delivers
any certificate that another person has taken an oath, except when
such oath is required by the provisions of some contract as a basis of,
or proof of, a claim, or when the same has been agreed to be received
by some person as proof of any fact in the perforinance of any con-
tract, obligation, or duty, instead of other evidence, is guilty of a mis-
demeanor.

§ 184. Compounding crimes.] Every i)erson who, having knowl-
edge of the actual commission of a crime or violation of statute, takes
any money or property of another, or any gratuity or reward, or any
engagement or promise therefor, upon any agreement or understand-
ing, express or implied, to compound or conceal such crime, or viola-
tion of statute, or to abstain from any prosecution therefor, or to with-
hold any evidence thereof, is punishable as follows:

1. By imprisonment in the territorial prison not exceeding five years^
or in a county jail not exceeding one year, where the crime com-
pounded is one punishable either by death or by imprisonment in the
territorial prison for life.

2. By imprisonment in the territorial prison not exceeding three
years, or in a coupty jail not exceeding six months, where the crime
compounded was punishable by imprisonment in the territorial prison
for any other term than for life.

3. By imprisonment in a county jail not exceeding one year, or by
fine not exceeding two hundred and fifty dollars, or hy both such fine
and imprisonment, where the crime or violation of statute compounded
is a crime punishable by imprisonment in 'a county jail or by fine, or
is a misdemeanor, or violation of statute for which a pecuniary or
other penalty or forfeiture is prescribed.

§ 185. Compounding prosecution.] Every person who takes any
money or property of another, or any gratuity or reward, or any
engagement or promise therefor, upon any agreement or understand-
ing, express or implied, to compound, discontinue, or delay any prose-
cution then pending for any crime or violation of statute, or to
withhold any evidence in aid thereof, is guilty of a misdemeanor.

§ 186. Attempt to intimidate officers. &c.] Every person who,
directly or indirectly, utters or addresses any threat or intimidation to
any judicial or ministerial officer, to any juror, referee, arbitrator,
umpire, or assessor, or other person authorized by law to hear or
determine any controversy, with intent to induce him either to any
act not authorized by law, or to omit or delay the performance of any
duty imposed upon him by law, is guilty of a misdemeanor.

Penal Code. Crimbs Defined. 71 &^

§ 187. Suppressing evidence.] Every person who maliciously
practices any deceit or fraud, or uses any threat, menace, or violence,
with intent to prevent any party to an action or proceeding from
obtaining or producing therein any book, paper, or other matter or
thing which might be evidence, or from procuring the attendance or
testimony of any witness therein, or with intent to prevent any person
having in his possession any book, paper, or other matter or thing
which mi^ht be evidence in such suit or proceeding, or prevent any

Serson being cognizant of any feet material thereto from producing or
isclosing the same, is guilty of a misdemeanor.

§ 188. Buying lands in suit.] Every person who takes any con-
veyance of any lands or tenements, or of any interest or estate therein,
from any person not being in the possession thereof, while such lands
or tenements are the subject of controversy, by suit in any court,
knowing the pendency of such suit and that the grantor was not in
possession of such lands or tenements, is guilty of a misdemeanor.

§ 189. Buying pretended titles.] Every person who buys or sells^
or in any manner procures, or makes, or takes any promise or cove-
nant to convey any pretended right or title to any lands or tenements,
unless the grantor thereof, or the person making such promise or cove-
nant, has been in possession, or he and those by whom he claims have
been in possession of the same, or of the reversion and remainder
thereof, or have taken the rents and profits thereof for the space of
one year before such ^ant, conveyance, sale, promise, or covenant
made, is guilty of a misdemeanor.

§ 190. Mortgage when not prohibited.] The two last sections
shall not be construed to prevent any person having a just title to
lands, upon which there shall be an adverse possession, from executing
a mortgage upon such lands.

§ 191. Common barratry defined.] Common barratry is the prac-^
t^ce of exciting groundless judicial proceedings.

§ 192. Misdemeanor.] Common barratry is a misdemeanor.

§ 193. Proof required.] No person can be convicted of common
barratry, except upon proof that he has excited suits or proceedings^
at law, in at least three instances, and with a corrupt or malicious
intent to vex and annoy,

§ 194. Interest.] Upon prosecution for common barratry, the fact
that the accused was himself a party in interest or upon the record to
any iproceedings at law, complained ot^ is not a defense.

§ 195. Buying demands or suito by attorney.] Every attorney
who, either directly or indirectly, buys or is interested in buying any
evidence of debt or thing in action, with intent to bring suit thereon,
is guilty of a misdemeanor.

§ 196. Same by justice or constable.] Every justice of the peace
and every constable who, directly or indirectly, buys or is interested
in buying any evidence of debt or thing in action, for the purpose of
commencing any suit thereon before a justice, is guilty of a misde-
meanor.

§ 197. Loans on claims for collection.] Every attorney, justice of
the peace, or constable, who, directly or indirectly, lends or advances
any money or property, or agrees for, or procures any loan or advance
to any person as a consideration for, or inducement towards, com-

720 Crimes Dbfined. Penal Code.

mitting any evidence of debt or thing in action to such attorney,
justice, constable, or any other person, for collection, is guilty of a
misdemeanor.

§ 198. Forfeiture of office.] Every person convicted of a
violation of either of the three preceding sections, in addition to the
punishment by fine and imprisonment, prescribed therefor by this
code, forfeits his office.

§ 199. Receiving claims allowable.] Nothing in the four preced-
ing sections shall be construed to prohibit the receiving in payment
of any evidence of debt or thing in action for any estate, real or
personal, or for any services of an attorney actually rendered, or for
a debt antecedently contracted, or the buying or receiving any
evidence of debt or thing in action for the. purpose of remittance,
and without any intent to violate the preceding section.

§ 200. Application of previous sections.] The provisions of
section 195, 197 and 199, relative to the buying of claims by an
attorney, with intent to prosecute them, or to the lending or advanc-
ing of money by an attorney, in consideration of a claim being
■delivered for collection, shall apply to every case of such buying a
claim, or lending or advancing money, by any person prosecuting a
suit or demand in person.

§ 201. Witnesses' privilege.] No person shall be excused from
testifying in any civil action, to any facts showing that an evidence
of debt or thing in action has been bought, sold, or received contrary
to law, upon the ground that his testimony might tend to convict him
of a crime. But no evidence derived from the examination of such
person shall be received against him upon any criminal prosecution.

§ 202. Criminal contempts.] Every person guilty of any con-
tempt of court of either of the following kinds, is guilty of a mis-
demeanor:

1. Disorderly, contemptuous, or insolent behavior, committed durii^g
the sitting of any court of justice, in immediate view and presence of
th^ court, and directly tendingr to interrupt its proceedings, or to
impair the respect due to its autnority.

2. Behavior of the like character, committed in the presence of any
referee or referees, while actually sitting for the trial of a cause, or
upon any inquest or other proceedings authorized by law.

3. Any breach of the peace, noise or other disturbance directly tend-
ing to interrupt the proceedings of any court.

4. Willful disobedience of any process or order lawfully issued by
any court.

5. Resistance willfully offered by any person to the lawful order or
process of any court.

6. The contumacious and unlawful refusal of any person to be
sworn as a witness; or, when so sworn, the like refusal to answer anj^
material question.

7. The publication of a false or grossly inaccurate report of the
proceedings of any court. But no person can be punished, as for a
contempt, in publishing a true, full, and fair report of any trial,
argument, decision, or proceeding had in court.

I 203. Application to stay trial.] Every attornev or counselor-
at-law who, knowing that an application has been made for an order

Fenal Code. Ceimes Defined. 721

staying the trial of an indictment to a judge, authorized to ^rant the
same, and has been denied, without leave reserved to renew it,- makes
an application to another judge to stay the same trial, is guilty of a
misdemeanor.

§ 204. Acting after challenge allowed.] Every grand juror who,
with knowledge of a challenge, interposed against him by a defendant,
has been allowed, is present at or takes part, or attempts to take part
in the consideration of the charge against the defendant who inter-
• posed the challenge, or the deliberations of the grand jury thereon, is
guilty of a misdemeanor.

% 205. Disclosure of depositions.] Every magistrate or clerk of
any magistrate who willfully permits any deposition taken on an
information or examination of a defendant before such magistrate,
and remaining in the custody of such magistrate or clerk, to be
inspected by any person, except a judge of a court having jurisdiction
of the offense, the United States attorney, the district attorney of the
district, and his assistants, and the defendant and his counsel, is guilty
of a misdemeanor.

§ 206. Same returned by grand jury.] Every clerk of any court
who willfully permits any deposition returned by any grand jury with
a presentment made by them, and filed with such clerk, to be inspected
by any person, except the court, the deputies or assistants oi such
clerk and the district attorney and his assistants, until after the arrest
of the defendant, is guilty of a misdemeanor.

§ 207. Fraudulent concealment.} Every person who, having been
►called upon, by the lawful order. of any court, to make a true exhibit
of his real and personal effects, either:

1. Willfully conceals any of his estate or effects, or any books or
writing relative thereto; or,

2. Willfully omits to disclose . to the court any debts or demands
which he has collected, or any transfer of his property which he had
made after being ordered to make an exhibit thereof, is guilty of ja
misdemeanor.

§208. Racing near a court.] Every person concerned in. any*
racing, running, or other trial of speed between any horses or other
animals, within one-half mile of the place where any court is actually
sitting, is guilty of a misdemeanor.

§ 209. bELi^TNG liquor IN COURT HOUSES, Ac.J Evcry person who-
sells any spirituous or intoxicating liquor within, or brings withintent.
»to sell, or offer, or expose for sale therein, any such liquor into, either:

1. Any building established as a court house for the holding bf
courts of record while any session of such court is being held therein, >
except in such part of such building not appropriated to the^uSeof
courts, or of juries attending them, in which such sale has beien atith6r-
ized by a resolution of the board of county commissioners of the
county: or, '

2. And building established as a jail or prison ; or,

S. Any building or shed, outhouse, porch, yard, or curtilage apper-
taining to any building which, or any part of which, is at the time
occupied or used for holding the polls at an election of any public
. officei* of this territory, or for canvassing votes cast at such election,

Is guilty of a misdemeanor.

40

722 Orimes Defined. Peftal Code,

% 210. Misconduct by attorneys.] Every attorney who, whether
as attorney or as counselor, either:

1. Is guilty of any deceit or collusion, or consents to any -deceit or
collusion, with intent to deceive the court or any party; or,
. 2, Willfully delays his client's suit with a view to his own gain: or,

3. Willfully receives any money or allowance for or on account of
any money which he has not laid out or become answerable for.

Is guilty of a misdemeanor, and in addition to the punishment pre-
scribed therefor by this code, he forfeits to the party injured treble
damages, to be recovered in a civil action.

§ 211. Permitting name to be used.] If any attorney knowingly
permits any person, not being his genefral law partner, or a clerk in his^
office, to sue out any process, or to prosecute or defend any action in
his name, except as authorized by the next section, such attorney, and
every person who shall so use his name, is guilty of a misdemeanor.

§ 212. In what oases lawful.] Whenever an action or proceeding
is authorized by law to be prosecuted or defended in the name of the
people, or of any public oflRcer, board of officers, or municipal corpora-
tion, on behalf of another party, the attorney general, or district
attorney, or attorney of such public officer, or board, or corporation
may permit any proceeding therein to be taken in his name by an
attorney to be chosen by the party in interest.

§ 213. Pretenses to birth of child.] Every person who fraudu-
lently produces an infant, falsely pretending it to have been bom of
any parent whose child would be entitled to inherit any real estate or
to receive a share of any personal estate, with intent to intercept the
inheritance of any such real estate, or the distribution of any such
personal estate from any person lawfully entitled thereto, is punish-
able by imprisonment in the territorial prison not exceeding ten years.

§ 214. Substituting child.] Eve^y person to whom an infant has.
been confided for nursing, education, or any other purpose, who, with
intent to deceive any parent or guardian of such child, substitutes or
produces to such parent or guardiati another child in the place of the
one so confided, is punishable by imprisonment in the territorial
prison not exceeding seven years.

§ 215. Importing convicts.] Every owner, master, or commander
of any vessel, arriving from a port without this territory, wha
knowingly lands, or permits to land, at anj port, city, or place within
this territory, any passenger or hand who is a foreign convict of any
crime which, if committed in this territory, would be punishable
therein, without giving notice thereof to the mayor of such city, or
other principal municipal officer of such port or place, is guilty of a
misdemeanor.

§ 216. Omission of duty by officer.] Where any duty is or shall
be enjoined by law upon any public officer, or upon any person hold-
iAg any public trust or employment, every willful omission to perform
such duty where no special provisions shall have been made for
the punishment of such delinquency, is punishable a^ a mis<ie-
meaner.

§ 217. Prohibited aot.] Where the performance of an act is
prohibited by any statute, and no penalty for the provision of such
statute is imposed in any statute, the doing such act is a misdemeanor.

Penal Code, Crimes Defined. 723

§ 218. Disclosing indictment.] Every grand juror, district-
attorney, clerk, judge, or other officer, who excepting by issuing or
in executing a warrant to arrest the defendant, willfully discloses
the fact of a presentment or indictment having been made for a
felony, until thp defendant has been arrested, is guilty of a mis-
demeanor.

§ 219. Disclosing jury proceedings.] Every grand juror who,
except when required by a court, willfully discloses any evidence
adduced before the gi'and jury or anything which he himself or any
other member of the ^and jury may have said, or in what manner
he or any other grand juror may have voted on a matter before them,
is guilty of a misdemeanor.

f 220. Suit in a false name.] Every person who maliciously
institutes or prosecutes any action or legal proceeding, or makes or

Erocures any arrest, in the name of a person who does not exist or
as not consented that it be instituted or made, is guilty of a mis-
demeanor.

§ 221. Maliciously procuring search.] Every person who mali-
ciously, and without probable cause, procures a search warrant to be
issued and executed, is guilty of a misdemeanor.

§ 222. Communications with convict.] Every person who, not being
authorized by law, or by a written permission from an inspector,
or by the consent of the warden, communicates with any convict in
the territorial prison, or brings into or conveys out of the territorial
prison any letter or printing to or from a convict is guilty of a
mi.sdemeanor.

§ 223. Neglect to canvass returns.] Every county clerk who
willfully refuses or neglects to canvass the election returns of his"
county, or neglects to make proper abstracts thereof and forward the
same to the proper officer, as is or may hereafter be provided by
law, or fails to issue certificates of election to such persons lawfully
entitled thereto, is punishable by fine not exceeding one hundred
dollars for each refusal or neglect.

§ 224. False certificate.] Every public officer who, being author-
ized by law to make or give any certificate or other writing, knowingly
makes and delivers as true any such certificate or writing containing
any statement which he knows to be false, is guilty of a misdemeanor.

CHAPTER XV.

OONBPIRACY.

' § 225. Criminal conspiracies defined.] If two or more persons
conspire, either:

1. To commit any- crime; or,

2. Falsely and maliciously to indict another for any crime, or to
procure another to be charged or arrested for any crime; or,

8. Falsely to move or maintain any suit, action, or proceeding; or,

4. To cheat and defraud any person of any property by any means

which are in themselves criminal, or by any means, which, if executed,

724 Crimes Defined. Penal Code.

would amount to a cheat or to obtaining money or property by false
pretenses; or,

5. To commit any act injurious to the public healtli, to public
morals, or to trade or commerce, or for the perversion or obstruction
of justice or the due administration of the laws.

They are guilty of a misdemeanor.

^ 226. Against peace of the territory.] If two or more persons,
being out of this territory, conspire to commit any act against the
peace of this territory, the commission, or attempted commissiou,
of which within this territory, would be treason against the territory,
they are punishable by imprisonment in the territorial prison not
exceeding ten years.

§ 227. Overt act — when necessary.] No agreement except to com-
mit a felony upon the person of another, or to commit arscyi or
burglary amounts to a conspiracy, unless some act besides such agree-
ment be done to eflfect the ooject thereof, by one or more of the parties
to such agreement.

CHAPTER XVI.

OF CHIMES against THE PERSON.

SUICIDK.

§ 228. Suicide defined.] Suicide is the intentional taking of one's
own life.

• § 229. No forfeiture.] Although suicide is deemed a grave public
wrong, yet from the impossibility of reaching the successful per-
petrator, no forfeiture is imposed.

§ 230. Attempt,] But every person who with intent to take his
own life, commits upon himself any act dangerous to human life, or
w^hicli if committed upon, or towards another person and followed by
death as a consequence, would render the perpetrator chargeable with
homicide, is guilty of attempting suicide.

§ 231. Aiding suicide.] Every person, who willfully, in any mau-
ner, advises, encourages, abets, or assists another person in taking his
own life, is guilty of aiding suicide.

$^ 232. Furnishing weapon or drug. | Every person who willfully
furnishes another person with any deadly weapon or poisonous drug,
knowing that such person intends to use such weapon or drug in tak-
ing his own life, is guilty of aiding suicide, if such person thereafter
employs such instrument or drug in taking his own life.

^ 233. Aiding attempt.] Every person, who willfully aids another
in attempting to take his owji life in any manner, which by the pre- *
ceding sections would have amounted to aiding suicide, if the person
assisted had actually taken his own life, is guilty of aiding an attempt
at suicide.

§ 234. Incapacity— NO defense.] It is no defense to u prosecution
for aiding suicide, or aiding an. attempt at suicide, that the person who
committed or attempted to commit the suicide was not a person
deemed capable of committing crime.

Penal Code. Crimes Defined. 725

§ 235. Punishment of aiding suicide.] Every person guilty of
aiding suicide is punishable by imprisonment in the territorial prison
for not less than seven years.

§ 236. Punishment of attempting suicide.] Every person guilty
of attemi)ting suicide, or of aiding an attempt at suicide, is punish-
able by imprisonment in the territorial pnson not exceeding two
years, or by a fine not exceeding one thousand dollars, or both.

CHAPTER XVIT.

homicide.

§ 237. Homicide defined.] Homicide is the killing of one human
being by another.

§ 288. Homicides classified,] Homicide is either:

1. Murder;

2. Manslaughter;

8. Excusable homicide; or,

4. Justifiable homicide.

§ 289. Corpus delicti.] No j^eraon can be convicted of murder or
manslaughter, or of aiding suicide, unless the death of the person
alleged to have been killed, and the fact of killing by the accused, are
each established as independent facts beyond a reasonable doubt.

§ 240. Petit treason abolished.] The rules of the common law,
distinguishing the killing .of a master by his servant, and of a husband
by his wife, as petit .treason, are abolished, and these offenses are
deemed homicides, punishable in the manner prescribed by this
chapter.

§ 241. Confidential or domestic relation.] Whenever the grade
or punishment of homicide is made to depend upon its having been
committed under circumstances evincing a depraved mind or unusual
cruelty, or in a cruel manner, the jury may take into consideration
the fact that any domestic or confidential relation existed between the
accused and the person killed, in determining the moral quality of the
acts proved.

§ 242. Murder defined.] Homicide is murder in the following
cases:

1. When perpetrated without authority of law, and with a premed-
itated design to effect the death of the person killed, pr of any other
human being.

2. When pei'petrated by any act imminently dangerous to others
and evincing a depraved mind, regardless of huiaian life, although
without any premeditated design to effect the death of any particular
individual.

3. When perpetrated without any design to effect death, by a person
engaged in the commission of any felony.

§248. Design to effect death inferred.] A design to effect
death is inferred from the fact' of killing, unless the circumstances
raise a reasonable doubt whether such design existed.

726 Crimes Defined. Penal Code.

§ 244. Premeditation.] A design to effect death sufficient to con-
stitute murder, may be formed, instantly before committing the act by
which it is carried into execution.

§ 245. Anger or intoxication no defense.] Homicide committed
with a design to effect •death is not the less murder because the
peri>etrator was in a state of anger or voluntary intoxication at the
time.

§ 246. Act eminently dangerous.] Homicide perpetrated by an
act eminently dangerous to others and evincing a depraved mind,
regardless of human life, is not the less murder because there was no
actual intent to injure others.

§ 247. Duel out of territory.] Every person who, by previous
appointment within this territory, fights a duel without this territory,
and in so doing, inflicts a wound upon his antagonist, or any other
person whereof the person injured dies, and every second engaged in
such duel, is guilty of murder, and may be indicted, tried, and con-
victed in any county of the territory.

§ 248. Murder by forcibly taking mine.] If any person or per-
sons shall associate and agree to enter or attempt to enter by force of
numbers, and the terror such numbers is calculated to inspire, or by
force and violence, or by threats of violence against any person or per-
sons in the actual possession of any lode, gulch, or placer claim, and
upon such entry or attempted entry, any person or persons shall be
killed, said persons and all and each of them so enteriu^ or attempt-
ing to enter, shall be deemed guilty of murder, and punished accord-
ingly. Upon the trial of such cases, any person cognizant of
such entry or attempted entry, who shall be present, and aiding,
assisting, or in anywise encouraging such .entry, or attempted entry,
shall be deemed a principal in the commission of said offense.

§ 249. Punishment of murder.] Every person convicted of murder
shall suffer death for the same.

§ 250. Manslaughter in first degree.] Homicide is man-
slaughter in the first degree in the following cases:

1. When perpetrated without a design to effect death by a person
while engaged in the commission of a misdemeanor.

2. When perpetrated without a design to effect death, and in a heat
of passion, but in a cruel and unusual manner, or by means of a
dangerous weapon, unless it is committed under such circumstances as
constitute excusable or justifiable homicide.

3. When perpetrated unnecessarily either while resisting an attempt
by the person killed to commit a crime, or after such attempt shall
have failed.

§ 251. Killing unborn quick child.] The willful killing of an
unborn quick child by any injury committed upon the person of the
mother of such child, and not prohibited in the next following section
is manslaughter in the first degree.

§ 252. By administering drugs.] Every person who administers to
any woman pregnant with a quick child, or who prescribes for such
woman, or advises or procures any such woman to take any medicine,
drug, or substance whatever, or who uses or employs any instrument or
other means with intent thereby to destroy such child, unless the same
shall have been necessary to preserve the life of such mother, is guilty,

Penal Code, CRiBftjs Defined. 727

in case the death of the child or of the mother is thereby produced, of
manslaughter in the first degree.

§ 253. Punishment manslaughter— first degree.] Every person
guilty of manslaughter in the first degree is punishable by imprison-
ment in the territorial prison for not less than four years.

§ 254. Second degree defined.] Every killing of one human beina
by the act, procurement or culpable negligence of another, which
under the provisions of this chapter is not murder, nor manslaughter
in the first degree, nor excusable nor justifiable homicide, is man-
slaughter in the second degree.

§ 255. Owner of mischievous animal.] If the owner of a mis-
chievous animal, knowing its propensities, willfully suffers it to go at
large or keeps it without ordinary care, and such animal, while so at
large or not confined, kills any human being who has taken all the
precautions, which the circumstances permitted to avoid such
animal, the owner is deemed guilty of manslaughter in the second
degree.

§ 256. Navigating vessels.] Every person navigating aby vessel
for gain who willfully or negligently receives so many passengers or
such a quantity of other lading on board such vessel that by means
thereof such vessel sinkt^, or is overset, or injured, and thereby any
human being is drowned or otherwise killed, is guilty of manslaughter
in the second degree.

§ 257. Having charge of steamboats.] Every captain or other
person having charge of any steamboat used for the conveyance of
passengers, or of the boilers and engines thereof, who, from ignorance
or gross neglect, or for the purpose of excelling any other boat in
speed, creates, or allows to be created, such an undue quantity of steam
as to burst or break the boiler or other apparatus in which it shall be
generated, or any apparatus or machinery connected therewith, by
which bursting or breaking any person is killed, is deemed guilty of
manslaughter m the second degree.

§ 258. Charge of steam engines.] Every engineer, or other person
having charge of any steam boiler, steam engine, or other apparatus
for generating or employing steam, employed in any manufactory,
railway, or other mechanical works, who willfully or from ignorance
or gross neglect, creates, or allows to be created, such an undue quantity
of steam as to burst or break the boiler, engine, or apparatus, or to
<!iause any other accident whereby the death of a human being is pro-
duced, is guilty of manslaughter in the second degree.

§ 259. Liabilities op physicians.] Every physician who, being in
a state of intoxication, without a design to effect death, administers
any poison, drug, or medicine, or does any other act as such physician,
to another person, which produces the death of such other person, is
guilty of manslaughter in the second degree.

§ 260. Keeping gunpowder.] Every person guilty of making or
keeping gunpowder or saltpetre within any city or village, in any
quantity or manner such as is prohibited by law or by any ordinance
of said city or village, in consequence whereof any explosion occurs
whereby any human being is killed, is guilty of manslaughter in the
second degree.

1

728 Crimes DsFfNBD. Penal Code^

§261. Punishment MANSLAUGHTER — SECOND degree.] Every per-
son guilty of manslaughter in the second degree is punishable by
imprisonment in the territorial prison not more than four years, and
not less than two years, or by imprisonment in a county jail not
exceeding one year, or by a fine not exceeding one thousand doUajrs,.
or by both fine and imprisonment.

§ 262. Excusable homicide.] Homicide is excusable in the follow-
ing cases:

1. When committed by accident and misfortune, in lawfully correct-
ing a child or servant, or in doing any other lawful act, bj*^ lawful
means, with usual and ordinary caution, and without any unlawful
intent.

2. When committed by accident and misfortune in the heat of pas-
sion, upon any sudden and sufficient provocation, or upon a sudden
combat; provided that no undue advantage is taken, nor any danger-
ous weapon used, and that the killing is not done in a cruel or unusual
manner.

§ 263. Justifiable homicide by officers.] Homicide is justifiable
when ^mmitted by public officers and those acting by their command
in their aid and assistance, either:

1. In obedience to any judgment of a competent court; or,

2. When necessarily committed in overcoming actual resistance to
the execution of some legal process, or to the discharge of any other
l€|gal duty; or,

3. When necessarily committed in retaking felons who have been
rescued, or who have escaped, or when necessarily committed in arrest-
ing felons fleeing from justice.

§ 264. By other person.] Homicide is also justifiable when com-
mitted by any person in either of the following cases:

1. When resisting any attempt to murder such person, or to commit
any felony upon him or her, or upon or in any dwelling house in which
such person is ; or,

2. When committed in the lawful defense of such person, or of his
or her husband, wife, parent, child, master, mistress, or servant, when
there is a reasonable ground to apprehend a design to commit a felony^
or to do some great personal injury, and imminent danger of such
design being accomplished ; or,

3. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed; or in
lawfully suppressing any riot; or in lawfully keeping and preserving
the peace.

CHAPTER XVIII.

maiming.

§ 265. Maiming defined.] Every person, who, with premeditated
design to injure another, inflicts upon his person any injury which
disfigures his personal appearance, or disables any member or organ
of his body, or seriously diminishes his physical vigor, is guilty of
maiming.

Penal Code. Crimes Defined. 729

§ 266. Maiming one's self.] Every person, who, with design to
disable himself from performing any legal duty, existing or antici-
pated, inflicts upon himself any injury whereby he is so disabled, is
guilty of maiming. •

§ 267. Same.] Every person who inflicts upon himself any injury
such as, if inflicted upon another, would constitute maiming, with
intent to avail himself of such injury, to excite sympathy, or to obtain
alms, or any charitable relief, is guilty of maiming.

§ 268. What injury is maiming.] To constitute maiming it is
immaterial by what means or instrument, or in what manner, the
injury was inflicted.

§ 269. What disfigurement.] To constitute maiming by disfigure-
ment the injury must be such as is calculated, after healmg, to attract
observation. A disfigurement which can only be discovered by close
inspection does not constitute maiming.

§ 270. Design to maim inferred.] A design to injure, disfigure, or
disable, is inferred from the fact of inflicting an injury wnich is
calculated to disfigure or disable, unless the circumstances raise a
rea>sonable doubt whether such design existed.

§ 271. Premeditated design.] . A i)remeditated design to injure^
disfigure, or disable, sufficient to constitute maiming, may be formed
instantly before inflicting the wound.

§ 272. Subsequent recovery.] When it appears, upon a trial for
maiming another person, that the person injured has, before the time
of trial, so far recovered from the wound that he is no longer by it
disfigured in personal appearance, or disabled in any member or organ
of his body, or affected m physical vigor, no conviction for maiming
shall be had; but the accused may be convicted of assault and battery^
with or without a special intent, according to the proof.

§ 273. Punishment.] Every person guilty of maiming is punishable
by imprisonment in the territorial prison not exceeding seven years,
or by imprisonment in a county jail not exceeding one year, or by
fine not exceeding one thousand dollars, or by both such fine and
imprisonment.

CHAPTER XIX.

kidnapping.

§ 274. Kidnapping defined.] Eveiy person who, without lawful
authority, forcibly seizes and confines another, or inveigles, or kidnaps
another, with intent, either:

1. To cause such other person to be secretly confined or imprisoned
in this territory against his will; or,

2. To cause such other person to be sent out of this temtory against
his will ; or,

3. To cause such person to be sold as a slave, or in any way held to
service against his will, is punishable by imprisonment in the terri-
torial prison not exceeding ten years.

Upon any trial for violation of this section, the consent thereto of
the person kidnapped or confined, shall not be a defense, unless it

730 Crimes Defined, Penal Code.

appear satisfactory »to the jury, that such person was above the age of
twelve years, and that such consent was not extorted by threat, or by
duress.

§ 275. Selling services of persons.] Every person who, within
this territory or elsewhere, sells, or in any manner transfers, for any
term, the services of labor of any black, mulatto, or other person of color,
who has been forcibly taken, or inveigled, or kidnapped from this
territory, is punishable by imprisonment in the territorial prison not
exceeding ten yeaix

§ 276. Removing persons held to service.] Every person claiming
that he or another is entitled to the service of a person alleged to \he
held to labor or service in a state or territory of the United States
who, except as authorized by law, takes, or removes, or willfully does
any act tending towards removing from this territory any such person,
is guilty of felony, punishable by imprisonment in the territorial
prison not exceeding ten years, and by a penalty of five hundred dol-
airs recoverable in a civil action by the party agjpdeved.

§ 277. Penalty.] Every judge or other public officer of this terri-
tory who grants or issues any warrant, certificate, or other process in
any proceedine for the removal from this territory of any person
•claimed as held to labor, or sendee in a state or territory of the United
States, except in pursuance of positive enactment, is guilty of a mis-
demeanor; and in addition to the punishment therefor prescribed by
law, he forfeits five hundred dollars to the party aggrieved, recoverable
in a civil action.

CHAPTER XX.

ATTEMPTS TO KILL.

§ 278. Administering poison.] Every person who, with intent to
till, administers, or causes, or procures to be administered to another,
any poison which is actually taken by such other, but by which death
is not caused, is punishable by imprisonment in the territorial prison,
not less than ten years.

§ 279. Shooting and assault.] Every pei-son who shoots or attempts
to shoot at another, with any kind of firearms, air-gun, or other means
whatever, with intent to kill any person, or who commits any assault
and battery upon another by means of any deadly weapon, and by
such other means, or force, as was likely to produce death ^dth intent
to kill any other person, is punishable by imprisonment in the terri-
torial prison not exceeding ten years.

§ 280. Other assaults.] Every person who is guilty of an assault
with intent to kill any person, the punishment for which is not pre-
scribed by the foregoing section, is punishable by imprisonment in the
territorial prison for a term not exceeding five years, or in a county
jail not exceeding one year, or by a fine not exceeding five hundred
dollars, or by both such fine and imprisonment.

Penal Code. Crimbb Dbfined. 731

CHAPTER XXI.

ROBBERY.

§ 281. Robbery defined.] Robbery is a wrongful taking of personal
property in the possession of another, from his person or iminediate
presence, and against his will, accomplished by means of force or fear.

§ 282. How FORCE OR FEAR EMPLOYED.] To constitute robbery, the
force or fear must be employed, either to obtain or retain possession of
the property, or to prevent or overcome resistance to the taking. If
employed merely as a means of escape, it does not constitute robbery.

§283.. Dborbe IMMATERIAL.] When force is employed in either of
the ways specified in the last section, the degree of force employed is
immaterial.

§ 284. What fbar an element.] The fear which constitutes rob-
bery may be either:

1. The fear of an unlawful injury, immediate or future, to the person
or property of the person robbed, or of any relative of his, or member
of his family; or,

2. The fear of an immediate and unlawful injury to the person or
property of any one in the company of the person robbed, at the time
of the robbery.

.§ 285. Value taken immaterial.] When property is taken under
the circumstances required to constitute robbery, the fact that the
property was of trifling value does not qualify the offense.

§ 286. Taking secretly not robbery.] The taking of property
from the person of another is not robbery, when it clearly appears that
the taking was fully completed without his knowledge.

§ 287. Two degrees of robbery.] Robbery when accomplished by
the use of force, or of putting the person robbed in fear of some
immediate injurj'^ to his pei'son, is rbbbery in the first degree. When
accomplished in any other manner, it is robbery in the second degree.

§ 288, Punishment of first degree.] Every person guilty of rob-
bery in the first degree is punishable by imprisonment in the terri-*
torial prison not less than ten years.

§ 289. Of second degree.] Every person guilty of robbery in the
second degree is. punishable by imprisonment in the territorial prison
not exceeding ten years.

§ 290. When by two oe more persons.] Whenever two or more
persons conjointly commit a robbery, or where the whole number of
persons conjointly committing a robbery, and persons present and aid-
ing such robbery amount to two or more, each and either of such per-
sons is punishable by imprisonment for life.

732 Crimes Defined. Penal Code.

CHAPTER XXII.

ASSAULTO WITH INTENT TO COMMIT FELONY OTHER THAN ASSAULTS WITH

INTENT TO KILL.

§ 291. Shooting and assault — deadly weapons.! Every person
who shoots or attempts to shoot at another with any kind of fire-arms,
air-gun, or other means whatever, or commits any assault or bat-
tery upon another by means of any deadly weapon or by such other
means or force as was likely to produce death, with intent to commit
any felony other than assault with intent to kill, or in resisting the
execution of any legal process, is punishable by imprisonment in the
territorial prison not exceeding ten years.

§ 292. Other assaults.] Every person who is guilty of an assault
with intent to commit any felony, except an assault with intent to
kill, the punishment for which assault is not prescribed by the preced-
ing section, is punishable by imprisonment in the territorial prison not
exceeding five years, or in a county jail not exceeding one year, or by
a fine not exceeding five hundred dollars, or by both such fine and
imprisonment.

§ 293. Administering drug.] Every person guilty of administer-
ing to another any chloroform, ether, laudanum, or other intoxicating*
narcotic, or anesthetic agent, with intent thereby to enable or assist
himself, or any other person, to commit any felony, is guilty of felony.

CHAPTER XXIII.

DUELS AND CHALLENGES.

§ 294. Duel defined.] A duel is any combat, with deadly weapons^
fought between two persons by previous agreement or upon a previous
quarrel.

§ 295. Punishment for fighting.] Every person guilty of fighting
any duel, although no death or wound ensues, is punishable by im-
prisonment in the territorial prison not exceeding ten years.

§ 296. Incapacity to hold office.] Every person convicted of
fighting a duel is thereafter incapable of holding, or being elected, or
appointed to any office, place or post of trust or emolument, civil or
military, under this territory.

§ 297. Seconds, aids, and surgeons.] Every person who is present
at the time when any duel is fought, either as second, aid, or surgeon,
or who advises, or gives any countenance to any duel, is punishable by
imprisonment in the territorial prison not exceeding seven years.

8 298. Punishment for challenges,] Every person who challenges
another to fight a duel; every person who accepts any such challenge;
and any person who knowingly forwards, carries, or delivers any such
challenge, is punishable by imprisonment in the territorial prison not
exceeding seven years.

Penal Code, Crimes Defined. 733

§ 299. Challenge defined.] Any words, spoken or written, or any
signs, uttered or made to any person, expressing or implying, or
intended to express or imply a desire, request, invitation, or demand,
to fight a duel, or to meet for the purpose of fighting a duel, are
deemed a challenge.

§ 300. Attempts to induce challenge.] Every person guilty of
sending, uttering, or making to another any words or signs whatever,
with intent to provoke or induce such person to give or receive any
challenge to fight a duel, is guilty of a misdemeanor.

§ 301. Posting for not fighting.] Every person who posts or
publishes another for not fighting a duel, or for not sending or accept-
ing a challenge to fight a duel, or who uses any reproachful or con-
temptuous language, verbal, written, or printed, to or concerning
another, for not sending or accepting a challenge to fight a duel, or
with intent to provoke a duel, is guilty of a misdemeanor.

§ 302. Leaving territory to evade laws.] Every person who
leaves this territory with intent to elude any of the provisions of this
chapter, and to commit any act out of this territory, such as is pro-
hibited by this chapter, and who does any act, although out of this
territory, which would be punishable by said provisions, if committed
within this territory, is punishable in the same manner as he would
have been, in case such act had been committed within this territory,

§ 303. Where tried.] Such person may be indicted and tried in
any county within this territory.

§ 304. Witnesses' privilege.] No person shall be excused from
testifying or answering any question upon any investigation or trial
for a violation of either of the provisions of this chapter, upon the
ground that his testimony might tend to convict him of a crime. But
no evidence given upon any examination of a person so testifying
iihall be received against him in any criminal prosecution or proceeding.

CHAPTER XXIY.

assault and battery

§ 305. Assault.] An assault is any willful and unlawful attempt or
oflfer, with force or violence, to do a corporal hurt to another.

§ 306. Battery.] A battery is any willful and unlawful use of
force or violence upon the person of another.

§ 307. When force allowable.] To use or to attempt to offer to
use force or violence upon or towards the person of another is not
unlawful in the following cases:

1. When necessarily committed by a public officer in the perform-
ance of any legal duty, or by any other person assisting him or acting
by his direction.

2. When necessarily committed l)y any person in arresting one who
has committed any felonj^ and delivering him to a public officer
competent to receive him in custody. *

3. When committed either by the party about to be injured or by
any other person in his aid or defense, in preventing or attempting to

734 Crimes Defined. Penal Code.

prevent an offense against his person, or any trespass, or other unlaw-
ful interference with real or personal property, in his lawful possession:
provided the force or violence used is not more than sufficient to
prevent such offense.

4. When committed b^ a parent or the authorized agent of any par-
ent, or by any guardian, master, or teacher, in the exercise of a law-
ful authority to restrain or correct his child, ward, apprentice, or
scholar, provided res'traint or correction has been rendered necessary
by the misconduct of such child, ward, apprentice, or scholar, or by his
refusal to obey the lawful command of such parent, or authorized
agent, or guai^lian, master, or teacher, and the force or violence used
is reasonable in manner and moderate in degree.

5. When committed by a carrier of pas8enger.s, or the authorized
agents or servants of such carrier, or by any person assisting them, at
their request, in expelling from any carriage, railroad car, vessel, or
other vehicle, any passenger who refuses to obey a lawful and reason-
able regulation prescribed for the conduct of passengers, if such
vehicle has first been stopped and the force and violence used is not
more than is sufficient to expel the offending passenger, with a reason-
able regard to his personal safety.

6. When committed by any person in preventing an idiot, lunatic*
insane person, or other person of unsound mind, including persons
temporarily or partially deprived of reason, from committing an act
dangerous to nimself or to another, or enforcing such restraint
as is necessary for the protection of his person or for his restoration
to health, during such period only as shall be necessary to obtain legal
authority for the restraint or custody of his person.

tJiL^-i^^l^VsA^ § 308. Punishment op assault and battery.] Assault, or assault

and battery, is punishable by imprisonment in a county jail not
exceeding one year, or by fine not exceeding one thousand dollars*
or both.

§ 309. Assaults with dangerous weapons.] Every person who,
with intent to do bodily harm, and without justifiable or excusable
cause, commits any assault upon the person of another with any
sharp or dangerous weapon, or who, without such cause, shoots or
attemp'bs to shoot at another with any kind of fire-arms, or air-gun, or
other means whatever, with intent to injure any person, although with-
out intent to kill such person or to commit any felony, is punishable
by imprisonment in the territorial prison not exceeding five years, or
by imprisonment in a county jail not exceeding one year.

CHAPTEE XXV.

libel.

§ 310. Libel defined.] Any malicious injury to good name, other
than by words orally spoken, is a libel.

§ 311. Libel A misdemeanor.] ' Every person who willfully and with
a malicious intent to injure another, publishes any libel, is guilty of
a misdemeanor.

Penal Code. Crimes Defined. 735

§ 312. Malice presumed.] An injurious publication is presumed
to have been malicious if no justifiable motive for makmg it is
shown.

§ 313. Truth given in evidence.] In all criminal prosecutions or
indictments for libel, the truth may be given in evidence to the jury,
and if it shall appear to the juiy that the matter charged as libelous
is true, and was published with good motives and for justifiable ends,
the party shall be acquitted.

§ 314. Publication defined.] To sustain a charge of publishing
a libel it is not needful that the words complained of should have
been read by any person. It is enough that the accused knowingly
parted with the immediate custody of the libel under circumstances
which exposed it to be read by any other person than himself.
» § 315. Liability of editors and others.] Each author, editor, and
proprietor of any book, newspaper, or serial publication, and each
member of any partnership or incorporated association, by which
any book, newspaper, or serial publication is issued, is chargeable with
the publication of any words contained in any part of said book, or
number of such newspaper, or serial.

§ 316. Privilege.] No reporter, editor, or proprietor of any news-
paper, is liable to any prosecution for a fair and true report of any
judicial, legislative, or other public official proceedings, or of any
statement, speech, argument, or debate in the course of the same,
except upon proof of malice, in making such report, which shall in no
case be implied from the mere fact of publication.

§ 317. Extent of privilege.] Libelous remarks or comments con-
nected with matter privileged by the last section, receive no privilege
by reason of their being so connected.

§ 318. Other privileged communications.] A communication
made to a person interested in the communicatiofi by one who was.
also interested, or who stood in such a relation to the former as to
afford a reasonable ground for supposing his motive innocent, is not
presumed to be malicious, and is called a privileged communication.

§ 319. Threatening to publish libel.] Every person who threat-
ens to another to publish a libel concerning him, or any parent,
husband, wife, or child, of such person, or member of his family, is
guilty of a misdemeanor.

CHAPTER XXVI.

rape, abduction, carnal abuse of children, and seduction.

§ 320. Rape defined.] Rape is an act of sexual intercourse accom*
plished with a female not the wife of the perpetrator, under either of
the following circumstances:

1. Where the female is under the age of ten years:

2. Where she is incapable, through lunacy, or other unsoundness of
mind, whether temporary or permanent, of giving legal consent.

3. Where she resists, but her resistance is overcome by force or
violence.

736 Crimes Defined. Penal Cade.

4. Where she is prevented from resisting by threats of immediate
and great bodilj^ harm, accompanied by apparent power of execution.

5. Where she is prevented from resisting by any intoxicating, nar-
cotic or anesthetic agent administered by or with the privity of the
accused.

6. Where she is at the time unconscious of the nature of the act.,
and this is known to the accused.

7. Where she submits under a belief that the person committing the
act is her husband; and this belief is induced by artifice, pretense or
concealment, practiced by the accused, with intent to induce such
belief.

§ 321. When physical ability must be prgved.J No conviction for
rape can be had against one who was under the age of fourteen years
at the time of the act alleged, unless his physical ability to accomplish^

Senetration is proved as an independent fact, and bej^ond a reasonable
oubt.

§ 322. What sufficient.] The essential guilt of rape consists in
the outrage of the person and feeling of tne female. Any sexual
penetration, however slight, is sufficient to complete the crime.

§ 323. Rape in first degree defined.] Rape committed upon a
female under the age of ten yeaiu or incapable through lunacy, or any
other unsoundness of mind of giving legal consent, or accomplished
by means of force overcoming her resistance, is rape in the first
decree.

f 324. Second degree.] In all other cases rape is of the second
degree.

§ 325. Punishment in first degree.] Rape in the first degree i:<
punishable by imprisonment in the territorial prison not less than
ten years.

§ 326. Second degree.] Rape in the second degree is punishable by
imprisonment in the territorial prison not less than five years.

§ 327. Compelling woman to marry.] Every person who takes any
woman against her will, and by force, menace, or duress, compels her^
to marry nim, or to marry any other person, is punishable by imprison-'
ment in the territorial prison, not less than ten years.

§ 328. To COMPEL WOMAN TO MARRY OR BE DEFILED.] EvCry pCrSOD

who takes any woman unlawfully against her will with the intent to
compel her by force, menace, or duress, to marry him, or to marry any
other person, or to be defiled, is punishable by imprisonment in the
territorial prison, not exceeding ten years.

§ 329. Seduction for prostitution.] Every person who inveigles
or entices any unmarried female of previous chaste character, under
the age of twenty-five years, into any house of ill-fame, or of assigna-
tion, or elsewhere, for the purpose of prostitution, and every person
who aids or assists in such abduction for such purpose, is t)unishable
by imprisonment in the territorial prison not exceeding five years, or
by imprisonment in a county jail not exceeding one year, or by a fine
not exceeding one thousand dollars, or by both such fine and impris-
onment.

§ 330. Abduction.] Every person who takes away any female under
the age of fifteen years, from her father, mother, guardian, or other
person having the legal charge of her person, without their consent.

Penal Code. Cbimbs Dbfinbd. 737

either for the purpose of marriage, concubinage, or prostitution, is
punishable by imprisonment in the. territorial prison not exceeding
five years, or by imprisonment in a county jail not exceeding one year,
or by a fine not exceeding one thousand dollars, or by both such fine
and imprisonment.

§ 331. Seduction under promise of marriage.] Every person, who,
under promise of marriage, seduces and has illicit connection with any
unmarried female of previous chaste character, is punishable by
imprisonment in the territorial prison not exceeding five years, or by
imprisonment in a county jail not exceeding one year, or by a fine not
exceeding one thousand dollars, or by both such fine and imprisonment.

§ 332. Subsequent marriage a defense.] The subse<^uent marriage
of the parties is a defense to a prosecution for a violation of the last
section.

OHAPTEE XXVII.

ADULTERY.

§ 333. Adultery deb^inb^d.] Adultery is the' unlawful voluntar J^
sexual intercourse, of a married person, with one of the opposite sex,
and when the crime is committed between parties, only one of whom
is mar*ried, both are guilty of adulteiy.

§ 334, Punishment for.] Every person guilty of the crime of
adultery, shall be punished by imprisonment in the territorial prison
not exceeding five years, or by fine not exceeding five hundred dollars,
or by both such fine and imprisonment.

CHAPTER XXTIII.

ABANDONMENT AND NBQLBCT OP GHIftDRBN.

§ 335. D^BESTiNG CHILD.] Every parent of any child under the age
of six years, and every person to whom any such child has been
confided for nurture or education, who deserts such child in any place
whatever, with intent wholly to abandon it, is punishable by imprison-
ment in the territorial prison not exceeding seven years, or in a county
jail not exceeding one year.

§ 336. Omitting to provide.] Every parent of anv child who
willfully omits, without lawful excuse, to perform any duty imposed
upon him by law to furnish necessary food, clothing, shelter, or
medical attendance for such child, is guilty of a misdemeanor.

47

738 Crimes Dbfinbd. Peml Cade.

CHAPTER XXIX.

ABORTIONS AND CONCEALING DEATH OP INFANT.

§ 337. Administering drugs.] Every person who administers to
any pregnant woman, or who prescribes for any such woman, or
advises, or procures any such woman to take any medicine, drug, or
substance, or uses or employs any instrument, or other means what-
ever, with intent thereby to procure the miscarriage of such woman,
unless the same is necessary to preserve her life, is punishable by
imprisonment in the territorial prison not exceeding three years, or in
a county jail not exceeding one year.

§ 338. Submitting to attempt.] Every woman who solicits of any
person any medicine, drug, or substance whatever, and takes the same,
or who submits to any operation, or to the use of any means what-
ever, with intent thereby to procure a miscarriage, unless the same is
necessary to preserve her lire, is punishable by imprisonment in a
county jail not exceeding one year, or by a ffne not exceeding one
thousand dollars, or by both.

§ 339. Concealing still birth or death.] Every woman who
endeavors either by herself or by the aid of others to conceal the still
birth of an issue of her body, which if born alive would be a bastard,
or the death of any such issue under the age of two years, is punish-
able by imprisonment in a county jail not exceeding one year, or by a
fine not exceeding one thousand dollars, or both.

CHAPTER XXX.

child stealing.

§ 340. Punishment.] Every person who maliciously, forcibly, or
fraudulently takes or entices away any child under the age of twelve
years, with intent to detain and conceal such child from its parent^
guardian, or other person having the lawful char]ge of such cnild, is
punishable by imprisonment in the territorial prison not exceeding
ten years, or by imprisonment in a county jail not exceeding one year,
or by a fine not exceeding five hundred dollars, or by both such fine
and imprisonment.

CHAPTER XXXI.

BIGAMY, incest AND THE CRIME AGAINST NATURE.

§ 341. Bigamy.] Every person who, having been married to
another who remains living, marries any other person, except in the
cases specified in the next section, is guilty of bigamy.

Pe^ial Code, Crimes Dbfinbd. 739

§ 342. ExoBPTioKS.] The last section does not extend:

1. To any person by reason of' any former marriage, whose husband
or wife by such marriage has been absent for five successive years
without being known to such person within that time to be living;
nor,

2. To any person by reason of any former nciarriage, whose husband
or wife by such marriage has absented himself or herself from his
wife or her husband and has been continually remaining without the
United States for the space of five years together; nor,

3. To any person by reason of any former marriage which has been
pronounced void, annulled, or dissolved by the judgment of a compe-
tent court, unless such marriage was dissolved upon the ground of
adultery committed by such person; nor,

4. To any person by reason of any former marriage with a husband
or wife who has been sentenced to imprisonment for life.

§ 343. Punishment of biq-amy.] Every person guilty of bigamy is
punishable by imprisonment in the territorial pnson not exceeding
five years.

§ 344. Other unlawful marbiaobs.] Every person who knowingly
marries the husband or wife of another, in any case in which euch
husband or wife would be punishable according to the foregoing pro-
visions, is punishable by imprisonment in the territorial prison not
exceeding five years, or in a county jail not exceeding one year, or by
a fine not exceeding five hundred dollars, or by both such £bie and
imprisonment.

§ 345. Incest.] Persons who, being within the degrees of consan-
Ruinity within which marriages are, by the laws of the territory,
declared incestous and void, intermarry with- each other, or commit
adultery and fornication with each other, are punishaUe by imprison-
ment in the territorial prison not exceeding ton years.
§ 346. Crime against nature*] Every person who is guilty of the
detestable and abominable crime against nature, committed with man-
kind or with a beast, is punishable by imprisonment in the territorial
prison not exceeding ten years-.

§ 347. Penetration sufficient.] Any sexual penetration, however
slight, is sufficient to complete the crime against nature.

CHAPTER XXXIL

violating sepulture and the remains of the DEAP.

§ 348. Disposal op one's own body.] Every person has the right to
direct the manner in whieh his hody shall be disposed of after his
death, and to direct the manner in which any part of his body which
becomes separated therefrom during his life time shall be disposed of.
The provisions of this chapter do not apply where such persoin has
given directions tor the disposal of his body, or any part thereof, incon-
sistent with these provisions.

§ 349. Duty op bueiau] Except in the eases in which a right to
dissect a dead body is eispvessly conferred by law, every dead body of

740 Crimes Definbd. Penal Code.

a human being, l3^ng within this territory, must be decently buried
within a reasonable time after the death.

§ 350. Burial in other states.] The last section does not affect
the right to carry the dead body of a human being through this terri-
tory, or to remove from this territory the body of a person dying within
it, for the purpose of burying the same in another state or territory.
* § 361. uissECTiON — WHEN ALLOWED.] The right to dissect the dead
body of a human being exists in the following cases:

1. In the cases authorized by positive enactment of the legislative
assembly of this territory.

2. Whenever death occurs under the circumstances in which a
coroner is authorized by law to hold an inquest upon the body, and a
coroner authorizes such dissection for the purposes of the inquest.

3. Whenever any husband or next of kin of a deceased person,
being charged by law with the duty of burial, authorizes such dissec-
tion for the purpose of ascertaining the cause of death.

§ 361. Unlawful dissection misdemeanor.] Every person who
makes or procures to be made any dissection of the body of a human
being, except by authority of law, or in pursuance or a permission
given by the deceased, is guilty of a misdemeanor. /

§ 362. Remains avter dissection.] In all cases in which a dissec-
tion has been made, the provisions of this chapter requiring the
burial of a dead body, and punishing interference with or injuries to a
dead body, apply ^ually to the remains of the body dissected, as soon
as the lawful purposes of such dissection have been accomplished.

§ 864. Dead limb or member of body.] All provisions of this chap-
ter requiring the burial of a dead body, or punishing interference with
or injuries to a dead body, apply equally to any dead limb or member
of a human body, separated therefrom during life time.

§ 355. By whom burial done.] The duty of burying the body of a
deceased person devolves upon the persons hereinafter specified:

1. If the deceased were a married woman, the duty of burial
devolves upon her husband.

2. If the deceased were not a married woman, but left any kindred,
the duty of burial devolves upon the person or persons in the same
degree nearest of kin to the deceased, being of adult age, and within
this territory, and possessed of sufficient means to defray the neces-
sary expenses.

3. If the deceased left no husband, nor kindred, answering the
foregoing description, the duty of burial devolves upon the coroner
conaucting an inquest upon the body of the deceased, if any such
inquest is held; if none, then upon the persons charged with the sup-
port of the poor in the locality in which the death occurs.

4. In case the person upon^ whom the duty of burial is cast by the
foregoing provisions omits to make such burial within a reasonable
time, the duty devolves upon the person next specified; and if all
omit to act, it devolves upon the tenant, or, if there is no tenant, upon
the owner of the premises, or master, or, if there is no master, upon
the owner of the vessel in which the death occurs or the body is
found.

§ 356. Nbgleot of burial.] Every person upon whom the duty
of making burial of the remains of a- deceased person is imposed by

Penal Code. Cbimbs Dbfinbd. 741

law, who omit to perform that dutv within a reasonable time^ is
guilty of a misdemeanor; and, in addition to the punishment pre-*
scribed therefor, is liable to pay to the person performing the duty in
his stead, treble the expenses incurred by the latter in making the
burial, to be recovered ixi a civil action.

§ 357. Who entitled to custody of body.] The person charged by
law with the duty of burying the body of a deceased person is
entitled to the custody of such body for the purpose of burying it;
except that in the cases in which an inquest is required by law to be
held upon a dead body, by a coroner, such coroner is entitled to its
custody until such inquest has been completed.

§ 358. Unlawful removal of the dead.] Every person who
removes any part of the dead body of a human being from any grave
or other place where the same has been buried, or from any place where
the same is deposited while awaiting burial, with intent to sell the
same, or to dissect it without authority of law, or from malice or wan-
tonness, is punishable by imprisonment in the territorial prison not
exceeding hve years, or in a county jail not exceeding one year, or by
a fine not exceeding five hundred dollars, or by both such fine and
imprisonment.

§ 359. Purchasing same — forbidden.] Every person who purchases,
or who receives, except for the purpose of burial, any dead body of a
human being, knowing that the same has been removed contrary to
the last section, is punishable by imprisonment in the territorial
prison not exceeding five years, or in a county jail not exceeding one
year, or by a fine not exceeding five hundred dollars, or by both such
fine and imprisonment.

§ 360. Unlawful interference with places of burial.] Every
person who opens any grave or any j^lace of burial, temporary or
otherwise, or who breaks open any building wherin any dead body
of a human being is deposited while awaiting burial, with intent,
either:

1. To remove any dead body of a human being for the purpose of
selling the same, or for th,e purpose of dissection; or,

2. To steal the coflSn, or any part thereof, or anything attached
thereto, or connected therewith, or the vestments or other articles
buried with the same; ...

Is punishable by imprisonment in the territorij,! prison not exceed-
ing two, or in a county jail not exceeding six months, or by a fine not
exceeding two hundred and fifby dollars, or by both such fine and
imprisonment.

§ 361. Bbmoval to another burial place.] Whenever a cemetery
or other place of burial is lawfully authorized to be removed from one
place to another, the right and duty to disinter, remove, and rebury
the remains of bodies there lying buried, devolves upon the persons
named in section 355, in the order in which they are named, and, if
they all fail to act, then upon the lawful custodians of the place of
burial so removed. Every omission of such duty is punishable in the
same manner as other omissions to perform the duty of making burial
are made punishable by section 356.

§ 362. Arresting or attaohino dead body.] Every person who
arrests or attaches any dead body of a human being upon any debt

742 CRiMiBS Dbfikbb. Penal Cc

Sr demand whatever, or detains or claims to detain it for any debt
emand, or upon any pretended lien or charge, is guilty of a misdi
meanor. 'I"

§ 368. DiSTtniBiNO FUNERALa] Every person who willfully disfearb«}*'
interrupts or disquiets any assemblage of people met for the purpose',
of any funeral; or who, without authority of law, obstructs or detaina
any persons engaged in carrying or accompanying any dead body of ^
human being to a place of burial, is guilty of a misdemeanor.

§ 364. Injury to cemetery or tomb.] Every person who shall will-
fully destroy, mutilate, deface, injure, or remove any tomb, monument^
or grave-stone, or other structure placed in any cemetery or private
burying ground, or any fence, railing, oi* other work for the protection
or ornament of any such cemetery or place of burial of any human'
being, or tomb, monument, or grave^stone, memento or memorial, or
other structure aforesaid, or of any lot within a cemetery, or shall
willfully destroy, cut, break, ot injure any tree, shrub, or plant within
the limits tliereof, shall be deemed guilty of a misdemeanor, and shall,
upon conviction thereof, be punished by fine of not less than five dol-
lars, nor more than five hundred dollars, or by imprisonment in the
county jail for a term not to exceed six months, or by both such fine
and imprisonment.

§ 365. Dissection. ] Every person who violates any provision of
any enactment of the legislative assembly of this territory, now in
force, or that hereafter may be enacted, not provided for in this code
relative to dissection, is guilty of a misdemeanor.

CHAPTER XXXIIL

indecent exposure, obscene exhibitions, books, and prints, anp

bawdy and other disorderly houses.

§ 366. Indecent exposures — exhibitionb-^piotures.] Every person
who, willfully and lewdly, either:

1. Exposes his person, or the private parts thereof, in any public
place, or in any place where there are present other persons to be
offended or annoyed thereby; or,

2. Procures, counsels, or assists any person so to expose himself, or
to take any part in any model artist exhibition, or to make any 'other
exhibition of himself to public view, or to the view of any number of
persons, such as is offensive to decency, or is adapted to excite vicious
or lewd thoughts or acts ; or,

3. Writes or composes, stereotypes, prints, publishes, sells, distri-
butes, or keeps for sale, or exhibits any obscene or indecent writing,
paper, or booK, or designs or copies, draws or engraves, paints or other-
wise prepares any obscene or indecent picture, or print of any descrip-
tion, or moulds, cuts, casts, or otherwise makes any obscene or indecent
figure, or form,

Is guilty of a misdemeanor.

§ 367. Seizure of indecent articles.] Every person who is
authorized or enjoined to arrest any person for a violation of sub-

- t

\l Code. Cbimeb Dxfinxp. 743

ision three of the last section, is equally authorized and enjoined

seize any obscene or indecent writing, paper^ book, -picture, print, or

re found in possession, or under the control of the person so

ested, and to deliver the same to the. magistrate before whom the

rsou so arrested is required to be taken!

§ 368. Their ohabaptbb suhmabilt dbtbbminbd.] The magistrate
whom any obscene or indecent writing, paper, book, picture, print,
figure, is delivered pursuant to the foregoing section, shall, upon the
amination of the accused, or if the« examination is delayed or pre-
ented, without awaiting such examination, determine the character
f such writing, paper, lx)ok, picture, print, or figure, and if he finds it
to be obscene or indecent, he shall cause the same to be destroyed, or
to be. delivered to the district attorney of the county in which the
accused is liable to indictment or trial, as the interests of justice in
his judgment require. But not more than two copies of any one
writing, paper, book, picture, print, or figure, shall be delivered to the
district attorney.

§ 369. Their dbstbuotion.] Upon the conviction of the accused,
such district attorney shall cause any writing, paper, book, picture,
print, or figure, in respect whereof the accused stands convicted and
which remains in the possession or under the control of such district
attorney, to be destroyed.

§ 370. Ebbpin0 bawdy housb.] Every person who keeps any bawdy
house, house of ill-fame, of assignation, or of prostitution, or any
other house or place for persons to visit for unlawful sexual inter-
course, or for any other lewd, obscene, or indecent purpose, is guilty
of a misdemeanor.

§ 371. Kebpino msobdbelt house.] Every person who keeps any
disorderly house, or any house of public resort by which the peace,
comfort or decency of the immediate neighborhood is habitually dis*
turbed, is guilty of a misdemeanor.

§ 372. Letting building for unlawful pubposes.] Every person
who lets any building, or portion of any building, knowing that it is
intended to be used for any purpose declared punishable by this chap-
ter, or who otherwise permits any building, or portion of a building, to
be so used, is guilty of a misdemeanor.

CHAPTER XXX IV.

lotteries.

§ 373, Lottery defined.] A lottery is any scheme for the disposal
or distribution of property by chance among persons who nave
paid, or promised, or agreed to pay any valuable consideration for the
chance of obtaining such property, or a portion of it, or for any share
of, or interest in such property, upon any agreernent, understanding,
or expectation that it is to be distributed or disposed of by lot or
chance, whether called a lottery, a raffle, or a gift enterprise, or by
whatever name the same may be known.

744 Grimss Defined. Penal Code.

% 874. Lottery a ptiBLic nui&ance.] Every lotteryj ig unlawful, and
a common public nuisance.

§ 375. Drawiko lotteries.! Every person who contrives, prepares,
sets up, proposes, or draws any lottery, is punishable by a fine equal to
double the amount of the whole sum or value for which such lottery
was made, and if such amount cannot be ascertained, then by impris-
onment in the territoHal prison not exceeding two years, or by
imprisonment in a county jail not exceeding one year, or by a fine of
two thousand five hundred dollars, or by both such fine -and imprison-
ment.

§ 876. Selling lottery tickets.] Every person who sells, gives, or
in any manner whatever furnishes Or transfers to, or for any other
person, any ticket, chance, share, or interest, or an^ paper, certificate,
or instrument, purporting, or represented, or understood to be, or
represent any ticket, chance, share, or interest in, or depending upon
the event of any lottery, is guilty of a misdemeanor.

§ 377. Buying lottery tickets.] Every person who buys, or in any
manner whatever accepts or receives for himself or another, any ticket,
chance, share, or interest, or any paper, certificate, or instrument, pur-
porting, or represented, or understood to be, or to represent any ticket,
chance, share, or interest in, or depending upon the event of any lot-
tery, forfeits ten dollars, to be recovered by the county superintendent
of public instruction, of the county in which the offense was commit-
ted, for the use of common schools in said county.

§ 378. Advertising lotteries.] Every person who, by writing or
printing, by circulars or letters, or in any other way, advertises or pub-
lishes any account of any lottery, stating when or where the same is
to be, or has been drawn, or what are the prices, or any of them
therein, or the i)rit5e of a ticket, or of any share, or interest, or where
it may be obtained, or in any way aiding or assisting the same, or
adapted to induce persons to adventure therein, is guilty of a misde-
meanor.

§ 379. Offering mjoperty dependent on lottery.) Every person
who offers for sale, distribution, or disposition in any way, any real or

Sersonal property, or things in action, or any interest therein, to be
etermined by lot or chance, that shall be dependent upon the draw-
ing of any lotterj^ within or out of this territory, and every person
who sells, furnishes, or procures, or causes to be sold, furnished, or
procured in any manner whatsoever, any chance or share, or any
interest whatever in any property offered for sale, distribution, or dis-
position, in violation of this section, or any ticket, or other evidence
of any chance, share, or interest in such property, is guilty of a mis-
demeanor.

§ 380. Lottery offices.) Every person who opens, sets up, or keeps,
by himself, or by any other person or persons, any oflBce or other place
for registering the numbers of any ticket in any lottery, or for mak-
ing, receiving, or registering any bets or wagers upon the drawing,
determination, or result of any lottery, is punishable by imprisonment
in a county jail, not exceeding one year, or by A fine not exceeding one
thousand dollars.

§ 381. Advertising lottery offices.] fivery person who, by writ-
ing or printing, by circulars or lettets, or in any other way, advertises

Penal Code. Cbixbs Devinbd. 745

or publishes any account of the opening, setting up, or keeping of any
office or other plapfe for either of the purposes prohibited by the last
section, is guilty of a misdemeanor.

§ 382. iRjsuRiNG LOTTERY TICKETS.] Evcry pcrsou who insures or
receives any consideration for insuring for or against the drawing of
any ticket, share, or interest in any lottery, or for or against the draw-
ing of any number or ticket, or number of any ticket in any lottery;
and every person who receives any valuable consideration upon any
agreement to pay any sum, or to deliver any property or thing in
action in the event that any ticket, share or interest in any lottery,
or any number, or ticket, or number of any ticket in any lottery shall
prove fortunate or unfortunate, or shall be drawn or not drawn on any
particular day, or in any particular order; and every person who prom-
ises, agrees or oflFers to pay any sum of money, or to deliver any prop-
erty or thing in action, or to do, or forbear to do, anything for the
benefit of any other person, with or without consideration, upon any
event whatever connected with any lottery, is guilty of a misde-
meanor.

§ 388. Advertising — same.] Every person who by writing or
printing, by circulars, or letters, or in any other way, advertises or
publishes any offer, notice, or proposal for any violation of the last
section, is guilty of a misdemeanor.

§ 384. Property offered.] All property offered for sale, distribu-
tion or disposition, in violation of the provisions of this chapter, is
forfeited to the people of this territory, as well before as after the
determination of the chance on whi#h the same was dependent. And
it is the duty of the respective district attorneys, to demand, sue for,
and recover, in behalf of this territory, all property so forfeited, and to
cause the same to be sold when recovered, and to pay the proceeds of
the sale of such property, and any moneys that may be collected in
any such suit, into the county treasury, for the benefit of common
schools.

§ 385. Letting building.] Every person who lets or permits to be
used any building, or portion of any building, knowing that it is
intended to be used for any of the purposes declared punishable by
this chapter, is guilty of a misdemeanor.

§ 386. Lotteries out of territory.] The provisions of this chap-
ter apply in respect to lotteries drawn or to be drawn out of this terri-
tory, whether authorized or not by the laws of the state where they
are drawn, or to be drawn, in same manner as to lotteries drawn or to
be drawn within this territory.

§ 387. Advertisements.] The provisions of sections 378 and 381
are applicable wherever the advertisement was published, or the letter
or circular sent or delivered through or in this territory, notwithstand-
ing the person causing or procuring the same to be published, sent, or
delivered, was out of this territory at the time of so doing.

746 Cbimbs Defined. Penal Code.

CHAPTER XXXV.

GAMING.

§ 388. Keeping gambling apparatus.] It is uulawful to maintain
or keep any table, cards, dice, or any other article or apparatus
whatever, useful, or intended to be used in playing any game of cards,
or faro, or other game of chance, upon which money is usually wagered.

§ 389. Punishment.] Every person who knowingly violates the
last section is guilty of a misdemeanor.

§ 390. Apparatus a nuisance.] Every article or apparatus main*
tained or kept in violation of section 388, is a common and public
nuisance.

§ 391. Exacting payment.] Every person who exacts or receives
from another, directly or indirectly, any valuable consideration, by
reason of the same having been won by playing at cards, faro, or any
other game at chance, or any bet or wager whatever, upon the hands
or sides of players, forfeits five times the value of the consideration
so exacted or received, to be recovered in a civil action, by the county
superintendent of public instruction of the county in which the
offense was committed, for the benefit of common schools in said
•county.

§ 392. Witness' privilege.] No person shall be excused from
giving any testimony or evidence upon any investigation or proceed-
ing for a violation of this chaptegr, upon the eround that such testi-
mony would tend to convict him of a crime; but such testimony or
evidence shall not be received against him upon any criminal investi-
gation or proceeding.

§ 393. Keeping gambling establishments.] Every person who
keeps any building, or part of any building, or any vesssel, or float, to
be used or occupied for gambling, and every owner, agent, or superin-
tendent of any such place, who Itnowingly lets the same or allows it
to be used or occupiea for gambling, is guilty of a misdemeanor.

§ 394. Keeping tables, &o., prohibited.] Every person who, for
gambling purposes, keeps or exhibits any gambling table, establish-
ment, device, or apparatus, or is guilty of dealing faro, or banking for
others to deal faro, or acting as lookout or game-Keeper for the game of
faro or any other banking game where money or property is dependent
upon the result, or who sells or vends what are commonly oallea lottery
policies, or any writing, card, paper, or document in the nature of a
bet, wager, or insurance upon the drawing or drawn numbers of any
public or private lottery, or endorses a book or any otiier document
•for the purpose of enabling others to sell or vend lottery policies, is
deemed a common gambler, and is punishable as for a misdemeanor.

§ 395. Seizure of implements authorized.] Every person who is
authorized or enjoined to arrest any person for a violation of the
provisions of this chapter, is equally authorized and enjoined to seize
any table, cards, dice, or other article or apparatus suitable to be used
for gambling purposes, found in the possession or under the control of
the person so arrested, and to deliver the same to the magistrate
before whom the person so arrested is required to be taken.

Penal Code: Crimbs Defined. 747

§396. Implements DESTROYED OR' DELivEEBD.] The magistrate to
whom anything suitable to be used for gambling purposes is delivered,
pursuant to the foregoing section, shall, upon the examination of the
accused, or if such examination is delayed or prevented, without
awaiting such examination, determine the character of the thing so
delivered to him, and whether it was actually employed by the
accused in violation of the provisions of this chapter; and if he finds
that it is of a character suitable to be used for gambling purposes,
and that it has been used by the accused in violation of this chapter,
he shall cause ijfc to be destroyed or be delivered to the district attorney
of the county in which the accused is liable to indictment or trial, as
the interests of justice, in his judgment, require.

§ 397. To BE DESTROYED UPON CONVICTION.] Upou the convictiou of
the accused, such district attorney shall cause any such thing suitable
to be used for gamblinff purposes, in respect whereof the accused
stands convicted, and which remains in the possession or under the
control of such district attorney, to be destroyed.

§ 398. Persuading person to visit gambling places.] Every
person who pernuades another to visit any building or part of a
building, or any vessel or float used or occupied for the purpose of
gambling, in consequence whereof such other person gambles therein,
is guilty of a misdemeanor, and, in addition to the punishment pre-
scribed therefor, is liable to such other person in an amount equal to
any money or property lost by him at play at such place, to be
recovered m a civil action.

§ 399. Duty of certain officers.] It is the duty of all sheriffs,
police officers, constables, and prosecuting or district attorneys, to
inform against and prosecute all persons whom they have credible
reason to believe are offenders against the provisions of this chapter,
and any omission so to do is punishable by a fine not exceeding five
hundred dollars.

§ 400. DtTTY OF masters of vessels.] If any commander, owner,
or lessee of any vessel or float, knowingly permits any gambling for
money or property on board such vessel or float, and does not, upon
his knowledge of the fact, immediately prevent the same, he is pun-
ishable by a fine not exceeding five hundred dollars, and in addition
thereto is liable to any party losing any money or property by means
of any gambling permitted in violation of this section, in a sum equal
to the money or property, to be recovered in a civil action.

§ 401 . Racing of animals for wager.] All racing, or trial of speed
between horses or animals, for any bet, stake, or rewarc\ except such
as is allowed by special laws, is a common nuisance, and every person
acting or aiding therein, or making or being interested in any such
bet, stake, or reward, is guilty of a misdemeanor: and in addition to
the penalty prescribed therefor, he forfeits all" title or interest in any
animal used with his privity in such race or trial of speed, and in any
sum of money or other property betted or staked upon the result
thereof.

748 Cbimbs Definbo. Penal Code.

CHAPTER XXXVJ..

PAWNBROKERS.

§ 402. Pawnbroking without license.] Every person who carries
on the business of a pawnbroker, by receiving goods in pledge for
loans at any rate of interest above that allowed by law, except
by authority of a license from a municipal corporation empowered to
grant licenses to pawnbrokers, is guilty of a misdemeaWor.

§ 403. Refusing to exhibit stolen goods.] Every pawnbroker, or
person carrying on the business of a pawnbroker, and every junk
dealer, who having received any goods which have been embezzled or
stolen, refuses or omits to exhibit them, upon demand, during the
usual business hours, to the owner of said goods, or his a^ent
authorized to demand an inspection thereof, is guilty of a misde-
meanor.

§ 404. Selling before default.] Every pawnbroker who sells any
article received by him in pledge, before the time to redeem the same
has expired, and every pawnbroker who willfully refuses to disclose
the name of the purchaser and the price received by him for any
article received by him in pledge, and subsequently sold, is guilty of a
misdemeanor.

CHAPTER XXXVIL

of other injuries to persons.

§ 405. Intoxicated physicians.] Every physician who, beiuR in a
state of intoxication, administers any poison, . drug, or meaicine,
or does any other act, as such physician, to another person by which the
life of such other is endangered, is guilty of a misdemeanor..

§ 406. Willfully poisoning food.] Every person who willfully
mingles any poison with any food, drink, or medicine, with intent that
the same shall be taken by any human being to his injury, and every
person who willfully poisons any spring, well, or reservoir of water,
is punishable by imprisonment in the territorial prison not exceeding
ten years, or in a county jail not exceeding one year, or by a fine not
exceeding five hundred dollars, or by botn such fine ana imprison-
ment.

§ 407. Overloading passenger vessel.] Every person navigating
any vessel for gain, who willfully or negligently receives so many
passengers or such a quantity of other lading on board such vessel,
that by means thereof such vessel sinks, or is overset, or injured, and
thereby the life of any human being is endangered, is guilty of a mis-
demeanor.

§ 408. Mismanagement of steamboats.] Every captain or other
person having charge of any steamboat used for the conveyance of
passengers, or of the boilers and engines thereof, who, from ignorance
or gross neglect, or for the purpose of excelling any other boat in speed,

Penal Code. Crimes Dbfinbd. 749

creates or allows to be created such an undue quantity of steam as to
burst or break the boiler, or other apparatus in which it shall be gene-
rated, or any apparatus or machinery connected therewith, by which
bursting or l3reaking human life is endangered, is guilty of a misde-
meanor.

§ 409. Steam boilers.] Every engineer or other person having
charge of any steam boiler, steam engine, or other apparatus for
generating or employing steam, eraployea in any manfactory, railway,
or other mechanical works, who willfully or from ignorance or gross
neglect, creates or allows to be created such an undue quantity of
steam as to burst or break the boiler, or engine, or apparatus, ol* cause
any other accident whereby human life is endangered, is guilty of a
misdemeanor.

§ 410. Fictitious co-partnership.] Every person transacting
business in the name of a person as a partner who is not interested in
his firm, or transacting business under a firm name in which the
designation " and company " or " & Co." is used without represent-
ing an actual partner, except in the cases in which the continued use
of a co-partnership name is authorized by law, is guilty of a misde-
meanor.

§ 411. CouNTBRFBiTiNo TRABB MARKS.] Evory persou who willfully
forges, counterfeits, or procures to b^ forged or counterfeited any trade
mark usually affixed by any person to any goods of such person, with
intent to pass off any goods to which such lorged or counterfeit trade
mark is affixed, or intended to be affixed, as the goods of such person,
is guilty of a misdemeanor.

§ 412. Kbeping dies of trade mark.] Every person who, with
intent to defraud, has in his possession any die, plate, or brand, or any
imitation of the trade mark of any person, for the purpose of making
any counterfeit or imitation of any description whatever of such
trade mark, or of selling the same when made, or affixing the same
to any g:oods, and selling or offering the same for sale or disposal as
the original goods of any other person; and every person who so uses
or sells the same, or who fraudulently uses the genuine trade mark of
another with intent to sell, or offer for sale, or disposal, any goods not
the goods of the person to whom such trade mark properly belongs,
as genuine and original, is guilty of a misdemeanor.

§ 413. Selling goods bearing counterfeit.] Every person who
sells or keeps for sale any goods upon which any counterfeited trade
mark has been affixed, intended to represent such goods as the genuine
goods of another, knowing the same to be counterfeited, is guilty of a
misdemeanor.

§ 414. Colorable imitations.] Every person who, with intent to
defruud, affixes or causes to be affixed to any goods or to any bottle,
case, box, or other package containing any goods, any description of
label stamp, brand, imprint, printed wrapper, label, or mark, which
designates such goods by any word or token which is wholly or in
. part the same to the eye, or to the ear, as the word or any of the
words or tokens used by any other person as his trade mark, and
every person who knowingly sells, or keeps, or offers for sale, any such
bottle, case, box, other package, with any such label, stamp, brand, im-
print, printed wrapper, ticket, or mark affixed- to or upon it, in case the

750 Crim«8 Bbfinbd. Penal Code,

person affixing or causing to be affixed such mark, or so selling, or
exposing, or OToring for sale such bottle, case, box, or other package,
was not the first to employ or use such words as his trade mark,
is ^ilty of a misdemeanor, and in addition to the punishment pre-
scribed therefor is liable to the party aggrieved in the penal sum of
one hundred dollars for each and every offense, to be recovered by
him in a civil action.

% 415. Trade marks dbfinbd.1 The words " trade mark/' as used
in the sections preceding, includes every description of word, letter,
device, emblem, stamp, imprint^ brand, printed ticket, label, or wrap-
per usually affixed by any mechanic, manufactorer, druggist, merchant
or tradesman, to denote any goods to be goods imported, manufactured,
produced, compounded or sold by him, other than any name, word, or
expression generally denoting any goods to be of some particular
class or description.

§ 416. Goods defined.] The word "goods," as used in the sections
preceding, includes every kind of goods, wares, merchandise, com-
pound or preparation, which may be lawfully kept or offered for sale.

§ 417. Affixing defined.] The offense of affixing a false trade
mark to goods is equally complete within the meaning of sections 411,
413, and 414, whether such mark is affixed to the goods themselves, or
to any box, bale, barrel, bottle, case, cask, wrapper, or other package,
or vessel, or any cover, or stopper thereof, in which such goods are
put up.

§ 418. Refilling or selling bottles.] Whenever any person engaged
in manufacturing, bottling, selling in bottles, soda, mineral waters,
porter, ale, cider^ or small beer, has filed and published, in the manner
authorized by law, a description of a name, mark, or label, usually
stamped by him in the bottles containing such beverage, every other

Serson who, without the written consent of such manufaxsturer or
ealer, refills with any beverage, whether genuine or otherwise, with
intent to sell the same, any bottles stamped with such name, mark,
or label, and every person who sells, disposes of, purchases or traffics
in such bottles, is liable to a penalty of fifty ceni^ for each and every
bottle so filled, sold, bought, disposed of, or trafficked in, for the fixst
offense, and five dollars for each and every bottle so filled, bought,
disposed of, or trafficked in, for every subsequent offense.

§ 419. Keeping bottles with intent to refill.] Every person who
keeps any bottles such as are designated in the last section, without
the written consent of the manufacturer so to do, unless it appears
that they were not kept with intent to refill, or use> or sell them in
violation of the last section, is liable to the penalty therein prescribed.
§ 420. Complaint — search — penalty.] Whenever any manufac-
turer or dealer designated by section 418, or his agent, shall make oath
or affirmation before any magistrate that he has reason to believe,
and does believe, that any of his bottles stamped and registered, as
mentioned in said section, are being unlawfully used by any person or
persons selling or manufacturing mineral water or other beverages,
or that any junk dealer, or vender of bottles, has any of such bottles
secreted in any place, such magistrate shall thereupon issue a. search
warrant, to discover and obtain the same under the provisions of the
law upon search warrants, which are hereby declared to fiiUy relate to

Penal Code, Obimbs Defined. 751

the purposes of this chapter; and the magistrate may summarily bring
or cause to b6 brought before him the person in whose possession the
bottles are found, to examine into the circumstances of his possession,
and if such magistrate, on summary examination, finds that such per-
son has been guilty of a violation of section 418, such magistrate snail
proceed to impose the tine therein prescribed, and, if the same be not

Said, to commit such person to prison for a term not exceeding fifteen
ays.

§ 421. Defacing marks.] Every person who defaces or obliterates
the marks upon wrecked property, or in any manner disguises the
appearance thereof, with intent to prevent the owner from discovering
its identity, or who destroys, or suppresses any invoice, bill of lading,
or other document tending to show the ownership, is guilty of a mis-
demeanor.

§ 422. Same on loos, &o.] Every person who cuts out or defaces
any mark made upon any log or lumber, whether such mark be
recorded or not, or puts a false mark upon any log or lumber floating
in any of the waters of this territory, or lying upon land, is guilty of
a misdemeanor.

§ 423. Unlawful detention.] Every officer who, without authority
of law, detains any wrecked property, or the proceeds thereof, after
the salvage and expenses cnargeable thereon have been paid, or
offered to him, or who is guilty of any fraud, embezzlement, or erfcor-
tion in the discharge of his duties, or who violates any provision of the
statutes relating to salvage, is guilty of a misdemeanor.

§ 424. Fraud in partnership.] Every member of a limited part-
nership who is ffuilty of any fraud in the affairs of the partnership, is
guilty of a misaemeanor.

§ 425. Solemnizing unlawful marriages.] Every minister oi; mag-
istrate who solemnizes any marriage, where either of the parties is
known to him to be within the a^e of legal consent, or to be an idiot,
or an insane person, or any marriage to which, within his knowledge,
any legal impediment exists, is guilty of a misdemeanor.

§ 426. Unlawful confinement of lun-atios.] Every overseer of the
poor, constable, keeper of a jail, or other person who confines any idiot,
lunatic, or insane person, in any other manner, or in any other place
than is authorized by law, is guilty of a misdemeanor.

§ 427. Taking usury.] Every person who, directly or indirectly,
receives anv interest, discount, or consideration, upon the loan or for-
bearance of any money, goods, or things in action greater than is
allowed by law, is guilty of a misdemeanor. c)U . \ ^ ^ .A- • '\i'^ ^

§ 428. Reconfining persons.] Every person, who either solely or as
a member of a court, in the execution of a judgment, order, or process,
knowingly recommits, imprisons, or restrains of his liberty, for the same
cause, any person who has been discharged from imprisonment upon
a writ of deliverance, is guilty of a misdemeanor; and in addition
to the punishment prescribed therefor, he forfeits to the party
aggrievea, one thousand dollars to be recovered in a civil action.

f 429. Concealing persons.] Every person having in his custody or
power, or under his rfestraint jL party who, by the provisions of the law
relating to habeas corpus, would be entitled to a writ of habeas corpus,
or for whose relief such writ has been issued, who, with intent to

752 Cbimb8 !Dbfinbd. Penal Cods,

elude the service of such writ, to avoid the effect thereof, transfers the
party to the custody, or places him under the power 'or control of
another, or conceals or changes the place of his confinement, or who,
without lawful excuse, refuses to produce him, is 'guilty of a misde-
meanor.

§ 430. Assisting samb.] Every person who knowingly assists in
the violation of the last section is guilty of a misdemeanor.

CHAPTER XXXVIIL

OF CRIMES AGAINST THE PUBLIC HEALTH AND SAFBTY.

§ 481. Public nuisance defined.] A public nuisance is a crime
against the order and economy of the territory, and consists in unlaw-
fully doing any act or omitting to perform any duty required by the
public good, which act or omission either:

1. Annoys or injures the comfort, repose, health, or safety of any
considerable number of persons; or,

2. Offends public decency; or,

3. Unlawfully interferes with, obstructs, or tends to obstruct, any
lake, or any navigable river, bay, stream, canal, or basin, or any public
park, square, street, or highway; or,

4. In any way renders life or the use of property uncomfortable.

§ 432. Unequal damage.] An act which affects a considerable
number of persons in either of the ways specified in the last section, is
not less a nuisance beoause the extent of the damage is unequal.

§ 433. Maintaining a nuisanob — misdemeanor.] Every person who
maintains or commits any public nuisance, the punishment for which
is not otherwise prescribed, or who willfully omits to perform any
le^al duty relating to the removal of a public nuisance, is guilty of a
misdemeanor.

§ 434. Keeping gunpowder.] Every person who makes or keeps
gunpowder or saltpetre within any city or village, and every person
who carries gunpowder through the streets thereof, in any a uantity or
manner such as is prohibited by law, or by any ordinance 01 such city
or vilage, is guilty of a misdemeanor.

§ 435. Throwing gas tar into public waters.] Every person who
throws or deposits any gas tar, or refuse of any gas house or factory,
into any public j^Jiters,*river, or stream, or into any sewer or stream
emptying into any such public waters, river, or stream, is guilty of a
misdemeanor. «

§ 436. Violations of quarantine laws.] Every master of a vessel
subject to quarantine or visitation by the health officer, by the pro-
visions of any law of this territory, now in force or that hereafter may
be enacted, arrives in any port or at the boat landing of any city or
town in this territory, who refuses or omits, either:

1. To proceed with and anchor or land his vessel at the place
assigned for quarantine, at the time of his arrival ; or,

2. To submit his vessel, cargo, and passengers^ to the examination
of the health officer, and to furnish all necessary information to

Fenal Code. Ceimbs Dsfinsd. 753

enable that oflScer to determine to what length of quarantine and
other regulations they ought respectively to be subject; or,

3. To remain with his vessel at quarantine during the period
assigned for her quarantine, and while at quarantine to comply with
the directions and regulations prescribed by law, and with sucn as any
of the officers of health, by virtue of the authority ^iven them by law,
shall prescribe in relation to liis vessel, his cargo, himself, his passen-
gers, or crew, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not exceeding two thousand dollars,
or both.

§ 437. Offenses by ship master.] Every master of g, vessel hailed
by a pilot, or such officer as. may be specified by law, who, either:

1. Gives false information to such pilot or other officer, relative to
the condition of his vessel, crew, or passengers, or the health of the
place or places from whence he came, or refuses to give such informa-
tion as shall be lawfully required; or,

2. Lands any person from his vessel, or permits any person, except
a pilot or such officer specified by law, to come on board of his vessel,
or unlades or tranships any portion of his cargo before his vessel has
been visited and examined by the proper healtn officers; or,

3. Approaches with his vessel nearer any city or town within this
territory than the place of quarantine to which he may be directed,
is punishable by imprisonment in the county jail of the county in
which the offense was committed, not exceeding one year, or by a fine
not exceeding two thousand dollars, or both such fine and imprison-
ment.

§ 438. Landing before visit of health officers.] Every person
who bein^ on board any vessel at the time of her arrival at any poi^t
within this territory, under the provisions of section 436, lands from
such vessel, or unlades, or tranships, .or assists in unlading or tran-
shipping any portion of her cago, before such vessel has been visited
and examined by the health officers, is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars, or both.

§ 439. Other restrictions.] Every person who ^oes on board of
or has any communication, intercourse, or dealing with any vessel at
quarantine, or with any of the crew, or passengers of such vessel,
without the permission of the health officer, and every person who,
without such authority ,enters the quarantine grounds or anchorage,
is punishable by imprisonment in a county iail not exceeding one
year, or by a fine not exceeding two thousand dollars, or both; and
m acldition thereto he may be detained at quarantine so long as the
health officers shall direct, not exceeding twenty days. And in case
such person shall be taken sick of any infectious, contagious, or pesti-
lentiaJ disease, during such twenty days, he may be detained for such
further time and at such place, as the health officer shall direct.

§ 440. Violating quarantine reoulationsJ Every person who
haying been lawfully ordered by any health omcer to be detained in
quarantine, and not having been discharged, leaves the quarantine
grounds or anchorage, or willfully violates any quarantine law or
regulation, is guilty of a misdemeanor.

48

754 Crimes Defined. Penal Code.

§ 441. Obstructing health officer.] Every person who willfully
opposes or obstructs any health officer, or physician charjred with the
enforcement of the health laws, in performing any legal duty, is guilty
of a misdemeanor.

§ 442. Violation of health laws.] Every person who willfully
violates any provision of the health laws, the punishment for violating
which is not otherwise prescibed by those laws, or by this code, ana
every person who willfully violates, or refuses, or omits to comply with
any lawful order, direction, prohibition, or regulation prescribed by
any board of health or health officer, or any regulation lawfully made
or established by any public officer under authority of the
health laws, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not exceeding two thousand dollars,
or both.

§ 443. Unlicensed piloting.] Every person not holding a license
as pilots' under the laws of this territory, or under the laws of either
the states of Missouri, Kansas, Iowa, or Nebraska, who pilots or oflFers
to pilot any steamboat to or from any port within this territorj^ is
guilty of a misdemeanor.

§ 444. Exceptions..] The last section applies only to vessels pro-
pelled by steam while engaged in conveying freight and passengers, or
either, on the Missouri river.

§ 445. Port warden.] Every person who not being a port warden,
assumes or undertakes to act as such, under or by the provisions of anj'
law of this territory, now in force or that may hereafter be enacted,
and every pei*son who issues any certificate of a survey on vessels,
materials or goods damaged, with the intent to avoid the provisions of
the law, is guilty of a misdemeanor.

§ 446. Apothecary, when liable.] Every apothecary or druggist,
and every person employed as clerk or salesman by an apothecary or
druggist, or otherwise carrying on business as a dealer in drugs or
medicines, who in putting up any drugs or medicines, willfully, negli-
gently, or ignorantly omits to label the same, or puts any untrue label,
stamp, or other designation of contents upon any box, bottle, or other
package containing any dru^, or medicines, or substitutes a diflPerent
article for any article prescribed or ordered, or puts up a greater or
less quantity of any article than that prescribed or ordered, or other-
wise deviates from the terms of the prescription or order which he
undertakes to follow, in consequence of, which -human life or health is
endangered, is guilty of a misdemeanor.

§ 44/. Record and witness of poison sale — labels.] No druggist,
apothecary, or other person dealing or trafficking in drugs or medicines,
and no person employed as clerk or salesman, by any apothecary or
druggist, shall sell or give away any poison or poisonous substances,
except to practicing physicians in their ordinary practice of medicine,
without recording in a book, to be kept for that purpose, the name of
the person or persons receiving such poison, and nis, her, or their resi-
dence, together with the name and residence of some pei-son as witness
to such sale, excepting upon the written order or prescription of some
practicing physician whose name must be attached to such ord^r or
prescription. No person shall sell, give away, or dispose of any
poisonous substance, wihout attaching to the phial, box, or parcel

Fenal Code. Crimes Definbd. 755

<7ontaining such poisonous substance a label with the word "poison"
printed or written upon it in plain and legible characters.

§ 448. Violation misdemeanor.] Any person violating any of the
^provisions of section 447, shall be deemea guilty of a misdemeanor.

§ 449. Record to be public] Every person whose duty it is by
section 447, to keep any book for recording the sale or gift of poisons,
who willfully refuses to permit any person to inspect said book, upon
reasonable demand made during business hours, is punishable by tine
not exceeding fifty dollars.

§ 450. Laying out poisons.] Every person who shall lay out strych-
nine or other poison within the limits of any town, or within one mile
of any dwelling house, or any barn, stable, or out-building, used at
the time for the keeping or shelter of horses, cattle, sheep, or swine, or
within one-half mile of any traveled thoroughfare, on the ceded lands
of this territory, is guilty of a misdemeanor; Provided, Nothing in this
section shall be construed to prohibit the putting out at any time of
poisoned grain for the purpose of killing gophers.

§ 451". Omitting to mark hay.] Every person who, in putting up
or pressing any bundle of hav for market, omits to put the number of
pounds in each bundle or bale so put up, for which he sellsi or offers to
iiell it for, is guilty of a misdemeanor.

§ 452. Inoeeased weight.] Every person w^ho, by putting up in any
bag, bale, box, barrel, or other package, any hops, cotton, hay, or other
goods usually sold in bags, bales, barrels, or packages, by weight, put^
in or conceals therein anything whatever, for the purpose of increas-
ing the weight of such bag, bale, box, barrel, or package, is punishable
by a fine of twenty-five dollars for each offense.

§ 453. Adulterating food.] Every person who adulterates or
dilutes any article of food, drink, drug, medicine, strong, spirituous, or
malt liquor, or wine, or any article useful in compounding either of
them, whether one useful for mankind or for animals, with a fraudu-
lent intent to offer the same, or cause or permit it to be offered for
sale as unadulterated or undiluted, and everj^ pei'son who fraudulently
sells, or keeps, or offers for sale the same as unadulterated or undiluteci,
knowing it to have been adulterated or diluted, is guiltj^ of a mis-
demeanor.

§ 454. Disposing of tainted food.] Every person who knowingly
fijells, or keeps, or offers for sale, or otherwise disposes of any article
of food, drink, drug, or medicine, knowing that the same has become
tainted, decayed, spoiled, or otherwise unwelcome or unfit to be eaten
or drank with intent to permit the same to be eaten or drank by any
person or animal, is guilty of a misdemeanor.

§ 455. Slung shot.] Every person who manufactures or causes
to be manufactured, or sells, or offers or keeps for sale, or gives or
disposes of any instrument or weapon of the Kind usually known as
»slung shot, or of any similar kind, is guilty of a misdemeanor.

§ 456. Carrying or using same.] Eyery person who carries upon
his person, whether concealed or not, or uses or attempts to use
against another, any instrument or weapon of the kind usually known
as slung shot, or of any similar kind, is guilty of a feloii)^.
. §45/. CoNOKALBD weapons.] Evory porsou who carries concealed
xibout his person any description of fire-arms, beii^g loaded or jpartly

756 ^ Crimes Defdted. Peftal Code^

loaded, or any sharp or dangerous weapon such as is usually employed
in attack or defense of the person, is guilty of a misdemeanor.

§ 458. Willful praieie fires.] Every person who shall willfulh;

set on fire, or cause to be set on fire, any woods, marshes, or prairie,

with intention to injure the property of another, shall be deemed

guilty of a misdemeanor, and shall be liable for all damages done by

such fire.

C* § 459. Same by negligence -damages.] Every person who negli-

r gently or carelessly sets on fire, or causes to be set on fire, any woods,

— marshes or prairies, or who, having set the same on fire, or caused it to-

^ be done, negligently or carelessly, or without full precaution or efforts

to {prevent, permits it to spread beyond his control, shall, upon con-

. viction, be fined not exceeding one hundred dollars and not less than

^ ten dollars, and shall be liable to injured p?irties for all damages

^ occasioned thereby. One-half of such fine shall, when collected, go

*^ to the informer.

"^ § 460. Refusing aid at fires.] Every person, who, at any t)urning
of a building, is guilt}'^ of any disobedience to lawful orders of any
public officer or fireman, or of any resistance to or interference with
the lawful efforts of any fireman, or company of firemen, to extinguish
the same, or of any disorderly conduct calculated to prevent the same
from being extinguished, or who forbids, prevents, or dissuades others

Ufrom assisting to extinguish the^ame, is guilty of a misdemeanor.
^"^^11 §461. Unlawful ferry.] Every person who maintains any ferry
for profit or hire upon any w^aters within this territory, without
authority of law, is punishable by fine not exceeding twenty-five
dollars for each time of crossing or running such ferry. Where such
ferry is upon waters dividing two counties, the offender may be
prosecuted in either.

§ 462. Ferry bond.] Everj' person who, having entered into a bond
or obligation, as provided by his ferry charter, or any general law on
the subject of ferries, to keep and attend a ferry, violates the condition
of such bond or obligation, is guilty of a misdemeanor.

§ 463. Failure to ring locomotive bell.] Every person in charge,
as engineer, of a locomotive engine, who omits to cause a bell to ring,
or a steam whistle to sound, at the distance of at least eighty rods
from the place where the track crosses, on the same level, any traveled
public way, is punishable by a fine not exceeding fifty dollars, or by-
imprisonment in the county jail not exceeding sixty days.

§ 464. Drunken manager.] Every person who, while in charge, as
engineer, of a locomotive engine, or while acting as conductor or driver
upon a railroad train or car, whether propelled oy steam or drawn by
horses, is intoxicated, is guilty of a misdemeanor.

§ 465. Agent's neglect of duty.] Every engrineer, conductor,
brakeman, switch- tender, or other officer, agent, or servant, of any
railroad company, who is guilty of any willful violation or omission of
his duty as such officer, agent, or servant, by which human life or safetv
is endangered, the punishment for which is not otherwise prescribed*
is guilty of a misdemeanor.

I 466. Guards of ioe cuttings.] All persons and incorporated
companies cutting ice in or upon any waters within the boundaries of
this territory, for the purpose of removing such ice for sale, shall sur-

Penal Code. Cbimss Defined. 757

round the cuttings and openings made, with fences of bushes or other
guards sufficient to warn all persons of such cuttings and openings.

§ 467. How LONG MAINTAINED.] Such fouces or guards must be
•erected at or before the time of commencing such cuttings or open-
ings, and must be maintained until ice has again formed in such open-
ings to the thickness of at least six inches.

% 46vS. Misdemeanor.] Every person who violates the provisions of
the last two sections, is guilty of a misdemeanor.

J^ 469. Obstrvcting navigation.! Every person who in any man-
ner obstructs the free navigation ot any navigable water course within
this territory, is guilty of a misdemeanor.

§ 470. Exposing person with contagious disease.] Every person
w^ho willfully exposes himself or another person, being, affected with
any contagious disease, in any public place or thoroughfare, except in
his necessary removal in a manner not dangerous to the public health,
is guilty of a misdemeanor.

§ 471. Frauds to affect market price.] Every person who will-
fully makes or publishes any false statement, spreads any false rumor,
or employs any other false or fraudulent means or device, with intent
to affect the market price of any kind of property, is guilty of a misde-
meanor.

§ 472. False statements in newspapers.] Every editor or proprie-
tor of any newspaper who willfully publishes in such newspaper as
true, any statement which he has not good reason to believe to be
true, with intent to increase thereby the sales of copies of such paper,
is guilty of a misdemeanor.

§ 473. Eavesdropping.] Every person guilty of secretly loitering
about any building, with intent to overhear, discourse therein, and to
repeat or publish the same to vex, annoy, or injure others, is guilty of
a misdemeanor.

§ 474. Racing upon highways.] Every person driving any convey-
ance drawn by horses upon any public road or Way, who causes or suffers
his horses to run, with intent to pass another conveyance, or to pre-
vent such other from passing his own, is guilty of a misdemeanor.

CHAPTER XXXIX.

crimes against the public peace.

§ 475. Disturbing lawful meetings.] Every person, who, without
authority of law, willfully disturbs or breaks up any assembly or
meeting, not unlawful in its character, other than such as are men-
tioned in sections 54, 74, and 363 of this code, is guilty of a misde-
meanor.

§ 476. Riot defined.] Any use of force or violence, or any threat
to use force or violence, if accompanied by immediate power of
execution, by three or more persons acting together and without
authority of law, is riot.

§ 477. Punishment op riot,] Every person guilty of participating
in any riot is punishable as follows:

758 Crimes Depinbd. Penal Code.

1. If any murder, maiming, robbery, rape, or arson, was committed
in the course of such riot, such person is punishable in the same man-
ner as a principal in such crime.

2. If the purpose of the riotous assembly was to resist the execution
of any statute of this territory, or of the United States, or to obstruct
any public officer of this territory, or of the United States, in the per-
formance of any le^l duty, or in serving or executing any le^al
process, such pei-son is punishable by imprisonment in the territonal
prison, not exceeding ten years, and not less than two.

8. If such person carried, at the time of such riot, any species of
fire-arms, or other deadly or dangerous weapon, or was disguised, he is
punishable by imprisonment in a territorial prison not exceeding ten
years, and not less than two.

4. If such person directed, advised, encouraged, or solicited, other
persons, who participated in the riot, to acts of force or violence, he is
punishable by imprisonment in the territorial prison, for not less than
three yeai-s.

5. In all other cases such person is punishable as for a misdemeanor.
§ 478. Rout defined.] Whenever thr§e or more persons, acting

together, make any attempt or to do any act towards the commission of
an act which would be riot if actually committed, such assembly is a
rout.

§ 479. Unlawful assembly.] Whenever three or more persons*
assemble with intent or with means and preparations to do an unlaw-
ful act which would be riot if actually committed, but do not act
towards the commission thereof, or whenever such persons assemble
without authority of law, and in such a manner as is adapted to dis-
turb the public peace, or excite public alarm, such assembly is an
unlawful assembly.

§ 480. Punishment.] Every person who participates in any rout or
unlawful assembly, is guilty of a misdemeanor.

§ 481. Warning to disperse.] Every person remainins present at
the place of any riot, rout, or unlawful assembly, after the same has
been lawfully warned to disperse, except public officers and persons
assisting them in attempting to dispei'se tlie same, is guilty of a mis-
demeanor.

§ 482. Present after unlawful purpose.] Where three or more
persons assemble for a lawful purpose, and afterwards proceed to
commit an act that would amount to riot if it had been the original
purpose of the meeting, every person who does not retire when the
change of purpose is made known, except public officers and persons
assisting them in attempting to disperse the same, is guilty of a mis-
demeanor.

§ 483. Refusing to arrest rioter.] Every person present at any
riot, and lawfully commanded to aid the magistrate or officers in
arresting any rioter, who neglects or refuses to obey such command, is
deemed one of the rioters, and punishable accordingly.

§ 484. Combinations to resist process.] Every person who resists,
or enters into a combination with any other person to resist the exe-
cution of any legal process, under circumstances not amounting to a
riot, is punishable by imprisonment in a county iail not exceeding one
year, or by a fine not exceeding one thousand dollars, or both.

Penal Code, Crimes Defined. 759

§ 485. Prize pioht.] Every person who engages in, instigates,
encourages, or promotes, any ring or prize fight, or any other premedi-
tated fight or contention, whether as principal, aid, second, umpire,
surgeon, or otherwise, although no death or personal injury ensues, is
guiltv of a misdemeanor.

§ 486. Challenge to prize fight.] Every person who challenge«
another to engage in any such fight as is specined in the last section,
every person who.accepte any such challenge, every person who know-
ingly forwards, carries, or delivers- any such challenge; and every
person who bets, stakes, or wafers any money or property upon the
result of any such fighty or ymo undertakes to hold any money or
property so betted, stoked, or watered, to be delivered tx) or for the
benefit of the winner thereof, is guilty, of a misdemeanor.

§ 487. What is a challenge.] Any words spoken or written, or
any signs uttered or made to any person, expressing or implying, or
intended to express or imply a desire, request^ invitation, or demand
to engage in any fight, such as is mentioned in section 485, are deemed
a challenge within the meaning of the last section.

§ 488. Leaving territory to engage in.] Every person who leaves
this territory with the intent to elude any of the provisions of the last^
three sections, and to commit any act out of this territory, such as is
prohibited by them, and who does any act which would be punishable
under these provisions, if committed within this territory, is punish-
able in the same manner as he would have been in case such act had
been committed within this territory.

§ 489. Place of trial.] Such person may be indicted and tried in
any county within this territory.

§ 490. Duty of peace officers.] It is the duty of all sheriffs, con-
stables, policemen, and watchmen, who have reasonable grounds to
believe tnat any offense specified in section 485 is about to be commit-
ted within their jurisdiction, to make complaint under the provisions
of this act to some magistrate within their jurisdiction.

§ 491. Neglect a misdemeanor.] Every sheriff, constable, police-
man, or watchman, who willfully neglects the duty prescribed by the
last section, is guilty of a misdemanor, and in addition to the punish-
ment prescribed therefor, he forfeits his office.

§ 49^. Forcible entry and detainer.] Every person guilty of
using, or procuring, encouraging, or assisting another to use any force
or violence in entering upon, or detaining any lands, or other posses-
sions of another, except m the cases and manner allowed by law, is
guilty of a misdemeanor.

§ 493. Returning to possession.] Every person who has been
removed from any lands by process of law, or who has removed from
any lands pursuant to the lawful adjudication, or direction of any
court, tribunal, or officer, and who afterwards, without authority of
law, returns to settle oi* reside upon such lands, is guilty of a misde-
meanor.

§ 494. Unlawful intrusions.] Every person who intrudes or squats
upon any lot or piece of land within the bounds of any incorporated
city or village, without license or authority from the owner thereof, or
who erects or occupies thereon any hut, hovel, shanty, or other struc-
ture whatever, without such license or authority; and every person

760 Crimes Defined. Penal Code.

who places, erects, or occupies within the bounds of any street or
avenue of such city or village, any hut, hovel, shanty, or other struc-
ture whatever, is guilty of a misdemeanor.

§ 495. Discharging firearms.] Every persdn who willfully dis-
charges any species of firearms, air-gun, or other weapon, or throws
any other missile in any public place, or in any place where there is
any person to be endangered thereby, although no injury to any person
• shall ensue, is guilty of a misdemeanor.

§ 496. Witness' privilege.] • No person shall be excused from
giving ainy evidence upon any investigation, or prosecution for any of
the oiffenses specified in this chapter, upon the ground that such testi-
mony or evidence might tend to convict him of a crime. But such
answer or evidence shall not be received against him upon any crim-
inal proceeding or prosecution.

CHAPTER XL.

OF CRIMES AGAINST THE REVENUE AND PROPERTY OF THE TERRITORY.

§497. Embezzlements and false acoounts by oppioers.] EJvery
public officer, and every deputy, or clerk of any such officer, and eveiy
other person receiving any moneys on behalf of, or for account of this
territory, or of any department of the government of this territory, or
of any bureau or fund created by law, and in which this territory, or
the people thereof, are directly or indirectly interested, who either:

1. Appropriates to his own use, or to the use of any person not
entitled thereto, without authority of law, any money received by him
as such officer, clerk, or deputy, or otherwise, on behalf of this terri-
tory, or the people thereof, or in which they are interested; or,

2. Knowingly keeps any false account, or makes any false entn^ or
erasure in any account of^ or relating to any moneys so received by
him, on behalf of the territory, or the said people, or in which they are
interested; or,

3. Fraudulently alters, falsifies, conceals, destroys, or obliterates any
such account; or,

4. Willfully omits or refuses to pay over to this territory, or its offi-
cer, or agent authorized by law to receive the same, any money
received by him under any duty imposed by law so to pay over the
same.

Is guilty of a felony.

§ 498. Other violation.] Every officer or other person mentioned
in the last section who willfully disobeys any provisions of law regu-
lating his official conduct, in cases other than tnose specified in that
section, is guilty of a misdemeanor. '

§ 499. Officer's fraud.] Every public officer, bein§ authorised to
sell or lease any property, or malce any contract m his official
capacity, who voluntarily becomes interested individually in such sale,
lease, or contract, directly or indirectly, is guilty of a misdemeanor.

§ 500. Refusal to perform duty.] Every register of deeds, judge
of the probate court, district attorney, county commissioner, sheri

JPenal Code, Crimes Defined. 761

coroner, or county superintendent of public schools, who willfully fails
or refuses to perform the duties of his office according to law, is guilty
of a misdemeanor.

§ 501. Obstructing COLLECTING REVENUE.] Every person who will-
fully obstructs or hinders any public officer from collecting any rev-
enue, taxes, or other sums of money in which, or in any park of which
the people of this territory are directly or indirectly interested, and
which such officer is by law empowered to collect, is guilty of a misde-
meanor.

§ 502. Other OFFICERS.] The provisions of section 500 shall also
apply to county treasurers, justices of the peace, and all other county
and precinct officers.

§ 508. Territorial officers.] Every territorial auditor, territorial
treasurer, superintendent of public instruction for this territory, or
any other territorial officer, who willfully neglects or refuses to per-
form the duties of his office, as prescribed by law, is guilty of a misde-
meanor.

§ 504. Auctioneer to have but one place.] No auctioneer, in any
town or county of this territory shall at one time have more than one
place for carrying on the general business of an auctioneer.

§ 505. Selling at other place.] No such auctioneer shall expose
to sale by public auction any articles liable to atiction duties at any
other place than that so designated, except goods sold in original
packages, as imported pictures, household furniture, libraries,
stationery and such bulky articles as have usually been sold in ware-
houses, or in the public streets, or on the wharves.

§ 506. Punishment.] A violation of either of the last two sections
is punishable by a tine not exceeding two hundred and fifty dollars for
each offense.

§ 507. Fraud in quality.] Every person carrying on, interested in
or employed about, the business of. selling property or goods by
auction, who sells any goods or property in a damaged condition,
which he offers as sound or in a good condition, is guilty of a misde-
meanor.

§ 508. Sales must be by day except.] All sales of goods by public
auction by a licensed auctioneer shall be made in the dav time
between sunrise and sunset, unless otherwise authorized by the law
under which he holds his license, excepting:

1. Books, prints, pictures, or stationery.

2. Goods sold in the original packages as imported, according to a
printed catalogue, of which samples shall have been openea and
exposed to public view at least one day previous to the sale. Every
person who violates the provisions of this section is guilty of misde-
meanor; and, in addition to the ijunishment prescribed therefor by
law, is forever disqualified, after his conviction therefor, from being
licensed to act as an auctioneer within this territory.

§ 509. Omitting to account,] Every auctioner, and every partner
or clerk of an auctioneer, and every person whatever, in any way con-
nected in business with an auctioneer, who willfully omits to render
any semi-annual or other account, by law required to be rendered, at
the time or in the manner prescribed by law, or who willfully

762 Crimbs Defined. Penal Co4e^

omits to pay over any duties legally payable by him at the time and
in the manner prescribed by law, is guilty of a misdemeanor.

§ 510. Auctioneer committing fraud.] . Every auctioneer, and
every partner or clerk of any auctioneer, and every person whatever,
in any way connected in business with an auctioneer, who commits
any fraud or deceit, (x by any fraudulent means whatever seeks to
evade or defeat the provisions of the laws of this territory relating^
to auctions, now in force, or that may hereafter be enacted^
is guilty of a misdemeanor, and in addition to the punishment pre-
scnbed therefor is liable in treble damages to any party injured
thereby.

§ 511. False bill of lading.] Every person whose duty it may be
to deliver to any collector of tolls upon any canal that hereafter
may be' constructed and owned by thifi territory, a bill of lading of
any property transported upon any such canal, who knowingly
delivers a false bill of lading as true, or makes or signs a false bill of
lading intending to be delivered as true, is punishable by imprison-^
ment in the territorial prison not exceeding one year, or by a fine not
exceeding five times the value of any property omitted in such bill, or
both.

§ 512. Weigh master making false entry.] Every weigh master
upon any canal that may hereafter be constructed and owned by this
territory, and every clerk of such weigh master, who knowingly makes
a false entry of the weight of any boat, or cargo of any boat navigat-
ing such canal, or who knowingly makes a false certificate of the light
weight of any boat, is guilty of a misdemeanor.

§ 513. Injuring public buildings.] Every person who willfully
bums, destroys, or injures any public building or improvement in this
territory, is punishable by imprisonment in the territorial prison not
exceeding five years.

§ 514. Seizing military stores.] Every person who enters any
fort, magazine, arsenal, armory, arsenal yard, or encampment, and
seizes or takes away any arms, ammunition, military stores, or
supplies belonging to the people of this territory, and every person
who enters any such place with intent 6o to do, is punishable by
imprisonment in the territorial prison not exceeding ten years.

§ 515. False statement about taxes.] Every person who, in
making any statement, oral or written, which is required or authorized
* by law to be made as the basis of imposing any tax or assessment, or
of an application to reduce any tax or assessment, willfully states any
material matter which he knows to be false, is guilty of a misde-
meanor. .

CHAPTER XLI.

arson.

§ 516. Arson defined.]. Arson is the willful and malicious burning
of a building, with intent to destroy it.

§ 517. Building defined.] Any house, edifice, structure, vessel, or
other erection, capable of affording shelter for human beings, or

Penal Code, Ckimies Defined. 7j63

appurtenant to, or connected with an erection so adapted, is a " build-
ing" within the meaning of the last section.

§ 518. Inhabited BtriLDiNO.] Anj'- building is deemed an " inhab-
ited building" within the meaning of this chapter, any part of which
has usually been occupied by any person lodging therein at night.

§ 519. Night defined.] The words " night time" in this chapter
include the period between sunset and sunrise. * *

§ 520. Burning defined.] To constitute a burning within the
meaning of section 516 it is not necessary that the building set on fire
should be destroyed. It is suflBcient that fire is applied so as to take
effect upon the substance of the building.

§.521. Ownership.] To constitute arson it is not necessary that
another person than the accused should have had ownership in the
building set on fire. It is suflBcient that at the time of the burning
another person was rightfully in the possession of, or was actually
occupying, such building, or any part thereof.

§ 522. Variance in proof.] An omission to designate, or error in
designating in an indictment for arson, the owner or occupant of a
building, shall not prejudice the proceedings thereupon, if it appears
that upon the whole description given of the building, it is suflRciently
identified to enable the prisoner to prepare .his defense.

§523. Malice.] Malice suflBcient to constitute arson is inferred
from proof that the prisoner committed an act of burning a building,
and tnat some other person was rightfully in possession of, or actually^
occupving any part thereof. It is not necessary that the accused
shoula have had actual knowledge of such possession or occupancy, or
should have intended to injure any person.

§ 524. No intent to destroy.] But the burning of a building
under circumstances which shows beyond a reasonable doubt, that
there was no intent to destroy it, is not ai*son.

§ 525. Contiguous buildings.] Where any appurtenance to any
building is so situated with reference to such building, or where any
building is so situated .with reference to another building, that the
burning of one will manifestly endanger the other, a burning of the
one is deemed a burning of the other, within the foregoing definition
of arson, and as against any person actually participating in the
original setting fire, as of the moment when the fire from the one
shall communicate to and bum the other.

§ 526. Degrees of arson.] Arson is distinguished into four degrees.

§ 527. First degree.] Maliciously jpuming in the night time an
inhabited building, in which there is at the time some human being,
is arson in the first degree.

§ 528. Appurtenances to buildings.] No warehouse, bam, shed,
or other outhouse, is a subject of arson in the first degree, unless it i&
immediately connected with, and forms part of an inhabited building.

§ 529. Arson in second degree.] Maliciously burning in the day
time an inhabited building, in which there is at the time some human
being, is arson in the second degree.

§ 530. In night time when 8ame.| Maliciously burning in the
night time a building, not an inhabited building, but adjoining to or
within the curtilage of an inhabited building in which there is at the
time some human oeing, so that such inhabited building is endangered.

764 Crimes Defined. Penal Code,

•even though it be not in fact injured by such burning, is arson in the
second degree. .

§ 531. In DAY TIME WHEN THIRD DEGREE.] Maliciously bumlng in
the daytime a building, the burning of which in the night time would
be arson in the second degree, is arson ip the third degree.

§ 532. In night time.] Maliciously burning in the night time any
building, ifot the subject of arson in the first or second degree,
including any house for public worship, school-house, or public build-
ing, belonging to the people of this territory, or to any county, city,
town, or village, any building in which have usually been deposited
the papers of any public officer, and any barn, mill, or manutactory,
is arson in the third degree.

§ 533. Fourth degree defined.] Maliciously burning in the day
time any buildine the burning of which in the night time would be
arson in the thira degree, is arson in the fourth degree.

§ 534. Punishment of arson.] Arson is punishable by imprison-
ment in the territorial prison, as follows:

1. Arson in the first degree, for any term not less than ten years.

2. Arson in the second degree, not exceeding ten years and not . less
than seven years.

3. Arson in the third degree, not exceeding seven years and not less
than four years.

4. Arson in the fourth degree, not exceeding four years'^and not less
than one year; or by imprisonment in a county jail not exceeding one
vear.

CHAPTER XLIL

BURGLARY AND HOUSE-BREAKING.

§ 535. Burglary in first dbgreb.I Every person who breaks into
and enters in the night time the dwelling-house of another, in which
there is at the time some human being, with intent to commit some
crime therein, either;

1. By forcibly bursting or breaking the wall, or an outer door, window,
or shutter of a window of such house, or the lock or bolt of such door,
or the fastening of such window, or shutter; or,

2. By breaking in any other manner, being armed with a dangerous
weapon, or being assisted or aided by one or more confederates, then
actually present; or,

3. By unlocking an out^r door by means of false keys, or by picking
the lock thereof,

Is guilty of burglary in the first degree.

§ 536. In second dbgrbb.] Every person who breaks into any
dwelling-house in the day time under such circumstances as would
have constituted the crime of burglary in the first degree if committed
in the night time, is guilty of burglary in the second degree.

§ 537. Samb.] Every person who, having entered the dwelling
house of another in the night time, through an open outer door or
window, or other aperture not made by sucn person, breaks any inner

Penal Code. Crimes Defined. TBS'

door,%win(low, partition, or other part of such house, with intent to-
commit any crime, is guilty of burglary in the second degree.

§ 538. Same.] Every person who, being lawfully in any dwelling-
house, breaks in the night time any inner door of the same house,
with intent to commit any crime, is guilty of burglary in the second
degree.

§ 539. Burglary, third degree.] Every person who breaks into
any dwelling-house in the night time, with intent to commit a crime,
but under such circumstances as do not constitute the oflfense of bur-
glary in the first degree, is guilty of burglary in the third degree.

§540. Other bur*glaries IN THIRD DEGREE.) Every person who breaks
and enters, in the day or in the night time, either:

1. Any building within the curtilage of a dwelling-house, but not
forming a part thereof; or,

2. Any building, or any part of any building, booth, tent, railroad car,
vessel, or other structure or erection in which any property is kept,
with intent to steal therein, or to commit any felony,

Is guilty of burglary in the third degree.

§541. Burglary in fourth degree.] Every person who breaks
and enters the dwelling house of another by day or by night, in such ""

manner as not to constitute any burglary specified in the preceding
section, with intent to commit a crime, is guilty of burglary in the
fourth degree.

§ 542. oAME.] Every person, who, having committed any crime in
the dwelling house of another, breaks in the night time, any outer
door, window shutter, or other part of such house to get put of the
same, is guilty of burglary in the fourth degree.

§ 543. Punishment.] Burglary Ls punishable by imprisonment in
the territorial prison as follows:

1. Burglary m the first degree, for any term not less than ten years.

2. Burglary in the second degree, not exceeding ten years, and not
less than five years.

3. Burglary in the third degree not exceeding five years.

4. Burglary in the fourth degree, not exceeding three years.

§ 544. Burglar's implements.] Every person, who, under circum-
stances not amounting to any felony, has in his possession in ^e
night time any dangerous, oflFensive weapon or instrument whatever,
or any picklock, crow, key, bit, jack, jimmy, nippers, pick, betty, or
other implement of burglary, with intent to break and enter any
building or part of any building, booth, tent, railroad car, vessel,
or other structure or erection, and to commit any feilony therein, is
guilty of a misdemeanor. •

§ 545. Entering other buildings.] Every person, who, under
circumstances not amounting to any burglary, enters any build-
ing, or part of any building, booth, tent, warehouse, railroad car,
vessel, or other structure or erection with intent to commit any felony,
larceny, or malicious mischief, is guilty of a misdemeanor.

§ 546. Dwelling house defined.] The term '* dwelling house,'* as
used in this chapter, includes every house or edifice, any part of which
has usually been occupied by any person lodging therein at night,
and any structure joined to and immediately connected with such 8u
house or edifice.

766 Cbimbb Defined. Penal Code.

§ 547. Night time defined.] The words "night time" in this^ chap-
ter, include the period between sunset and sunrise.

CHAPTER XLIIL

FORGERY AND COUNTERFEITING.

§ 548. Forgery OF wills, &c.] Every person, vtho, with intent to
defraud, forges, counterfeits, or falsely alters:

1. Any will or codicil of real or personal property,, or any deed or
other instrument being or purporting to be the act of another, by
which any right or interest in real nroperty is, or purports to be
transferred, conveyed, or in any way charged or affected; or,

2. Any certificate or endorsement of the acknowledgment by any
person of any deed or other instrument which by law may be
recorded or given in evidence, made or purporting to have been made
by any officer duly authorized to make such certificate or indorse-
ment; or,

3. Any certificate of the proof of any deed, will, codicil, or other
instrument, which by law may be recorded or given in evidence, made
or purporting to have been made by any court or officer duly author-
ized to make such certificate.

Is guilty of forgery in the first degree.

§ 549. Forgery of public securities.] Every person who, with
intent to defraud, forges, counterfeits, or falsely alters :

1. Any certificate or other public security, issued or purporting to
have been issued under the authority of this territory, by virtue of any
law thereof, by which certificate or other public security, the payment
of any money, absolutely or upon any contingency, is promised, or the
receipt of any money or property acknowledged ; or,

2. Any certificate of any share, right, or interest in any public stock,
created by virtue of any law of this territory, issued or purporting to
have been issued by any public officer, or an j- other evidence of any
debt or liability of the people of this territory, either absolute or con-
tingent, issued or purporting to have been issued bj^ ^ny public offi-
4^er; or,

3. Any indorsement or other instrument, transferring or purporting
to transfer the right or interest of anjr holder of any such certificate,
public security, certificate of stock, evidence of debt or liability, or of
a,ny person entitled to such right or interest,

Is guilty of forgery in the first degree.

§ 550. Of public and corporate seals.] Every person who, with
intent to defraud, forges, or counterfeits the great or privy seal of this
territory, the seal of any public office authorized by law, the seal of
any court of record, including judgje of probate seals, or the seal of any
wrporation created by the laws of this territory, or of any state, gov-
ernment, or country, or any other public seal authorized or ipecognized
by the laws of this territoiy, or of any other state, government, or
<;ountry, or who falsely makes, forges, or counterfeits any impression

Penal Code, Crimes Defined. 767

purporting to be the impression of any such seal; is guilty of forgery
in the second degree.

§551. FOROERY OF RECORDS AND OFFICIAL RETURNS.] EveiJ pCrSOD

i?vho, with intent to defraud,' falsely alters, destroys, corrupts, or
falsifies:

1. Any record of any will, codicil, conveyance, or other instrument,
the record of which is, by law, evidence ; or,

2. Any record of any judgment in a court of record, or any enroll-
ment of any decree of a court of equity; or,

3. The return of any officer, court, or tribunal to any process of any
court.

Is guilt}^ of forgery' in the second degree.

§ 552. Making false entries.] Every person who, with intent to
defraud, falsely makes, forges, or alters any entry in any book of rec-
ords, or any instrument purporting to be any record or return, speci-
fied in the last section, is guilty of forgery in the second degree.

§ 553. False certificates.] If any officer authorized to take the
acknowledgment or proof of any conveyance of real property, or of
any other instrument which by law may be recorded, knowingly and
falsely certifies that any such conveyance or instrument was acknowl-
edged by any other party thereto, or was proved by any subscribing *
witness, when in truth such conveyance or instrument was not
acknowledged or proved as certified, he is guilty of forgery in the
second degree.

§ 554. False bank note plates.] Every person who makes or
engraves, or causes or procures to be made or engraved, any plate in
the form or similitude of any promissory note, bill of exchange, draft,
check, certificate of deposit, or other evidence of debt, issued by any
banking corporation or association, or individual banker, incorporated
or carrying on business under the laws of this territory, or of any other
i5tate, government, or country, without the authority of such bank, or
has or keeps in his custody or possession any such plate, without the
authority of such bank, with intent to use or permit the same to be
used for the purpose of taking therefrom any impression, to be passed,
sold, or altered, or has or keeps in his custody or possession, without
the authority of such bank, any impression taken from any such plate, *
with intent to have the same filled up and completed for the purpose
of being passed, sold, or altered : or makes or causes to be made, or has
in his custody or possession, any plate upon which are engraved any
figures, or words, which may be used for the purpose of falsely alter-
ing any evidence of debt issued by any such bank, with the intent to
use the same, or to permit them to be used for such purpose, is guilty
of forgery in the second degi*ee.

§ 555. Imitation of a genuine.] Every plate specified in the last
section shall be deemed to be in the form and similitude of the
genuine instrument imitated, in either of the following cases:

1. When the engraving on such plate resembles and conforms to
such parts of the genuine instrument as are engraved; or,

2. When such plate is partly finished, and the part so finished
resembles and conforms to similar parts of the genuine instrument.

§ 556. Sale of forgbd evidences.] Every person who Bells,
exchanges, or delivers for any consideration any forged or counter-

768 Crimes Defined. ^ Pen^l Code.

feited promissory note, check, bill, draft, or other evidence of debt, or
engagement for the payment of money absolutely, or upon any con-
tingency, knowing tne same to be forged or counterfeited, with intent
to have the same uttered or passed, or who offers any such note or
other instrument for sale, exchange, or delivery for any considera-
tion, with the like knowledge and intent, or who receives any such
note or other iustrument upon a sale, exchange, or delivery for any
consideration, with the like knowledge and intent, is guilty of forgery
in the second degree.

§ 557. Having in possession.] Every person, who, with intent to
defraud, has in his possession any forged, altered, or counterfeit
negotiable note, bill, draft, or other evidence of debt, issued or pur-
porting to have been issued by any corporation or company auly
authorized for that purpose by the laws of this territory, or of any other
«tate, government, or country, the forgery of which is hereinbefore
declared to be punishable, knowing the same to be forged, altered* or
counterfeited, with intent to utter the same as true or as false, or to
cause the same to be so uttered, is guilty of forgery in the second degree.

§ 558. Other forged instruments.] Every person, who has in his
possession any forged or counterfeited instrument, the forgery of
* which is hereinbefore declared to be punishable, other than such as
are enumerated in the last section, knowing the same to be forged,
counterfeited, or falsely altered, with intent to injure or defraud by
uttering the same as true, or as false, or by causing the same to be so
uttered, is guilty of forgery in the fourth degree. ,

§ 559. Issuing spurious certificates.] Every officer, and every
agent of any corporation or joint stock association formed or existing-
under or by virtue of the laws of this territory, or of any other stated
government, or country, who, within this territory, willfully signs, or
procures to be signed, with intent to issue, sell, or pledge, or to cause to be
issued, sold, or pledged, or who willfully issues, sells, or pledges, or
causes to be issued, sold, or pledged, any false or fraudulent certificate
or other evidence of the ownership or transfer of any share or shares of
the capital stock of such corporation or association, whether of full paid
shares or otherwise, or of any interest in its property or profits, or of
. any certificate or other evidence of such ownership, transfer, or inter-
est^ or any instrument purporting to be a certificate or other evidence
of such ownership, transfer, or interest, the signing, issuing, selling, or
pleding of which has not been duly authorized by the board of direc-
tors, or other managing body of such corporation or association
having authority to issue the same, is guilty of foi'gery in the second
degree.

f 560. Reissuing cancelled certificates.] Every officer, and every
agent of any corporation or joint stock association formed or existing
under or by virtue of the laws of this territory, or of any other atate^
government, or country, who within this territory willfully reissues,
sells, or pledges, or causes to be reissued, sold, or pledged, any sur-
rendered or canceled certificate, or other evidence of the ownership or
transfer of any share or shares of the capital stock of such corporation
or association, or of an interest in its property or profits, witn intent
to, defraud is guilty of forgery in the second degree.

Penal Ccxfe. ^ Crihsb Defined. 769

§ 561. Falsv kvudsnoes of debt.] Every ojBEicer ainl every agent of
iany corporation, municipal or otherwise, of any joint stock associa-
tion formed or existing under or by virtue of the laws of this territory,
•or of any other state, government, or country, who within this terri-
tory willfpUy signs, pr procures to be signed with intent to issua sell,
or pledge, or to cause to be.iasued, sold, or pledged, or ¥^o willfully
issues, sella, or pledges, or .causey to be issued^ sold, or pledged, any
false or fraudulent bond or other evidence of debt against such corpora-
tion or association of any instrument purporting to be a bond or^
other evidence of debt sigainst such corporation or association, the
signing, issuing, selling, pr pledging of which has not been duly
:authonzed by . the board of directors or common council or other
managing. body or ofiSc^r^ of such corporation having authority to
issue the same, is guilty of forgery in the second degree.

§ 562. CoijNTERjFKiTiNa COIN.] Evcry person who counterfeits any
^old or silver coin, whether oi the United States or of any foreign
:govemment or country, with intent to sell, utter, use, or circulate the
same as genuine, within this territory, is guilty of forgery in the
second degree. . . .

§ 563, Sake.] Every .person who- counterfeits aay gold or silver
<soin, whether of the United States or of any foreign countary or gov-
•ernment, with intent to export the same, or permit them to- be
exported, to injure or defraud any foreign government, or the subjects
thereof, is guilty of forgexy in the third degree.

§ 564. FoRoiNCk PHOCESB OF COURT.] Evory peracm who, with intent
to defraud, falsely mtikes, alters, forges, or counterfeits:

1. Any instrument in writing, being or purporting to be any process
issued by any competent court, magistrate or officer^ or. beings or pur-
porting to be, any pleading,, proceeoing, bond, or undertaking filed or
entered in any court, or bemg» or purporting to be, any certificate,
order, or allowance, by fiiny, competent .court oir ofilcer, or being, or
purporting to be, a^iy ■, license or authority authorised by any stat-
ute; or,

2, Any instrument or wyiting being or purportio^ to be, the act of
^another, by which any pecuniary demand or obligation is, or* purports
to be created increased, discharged,. qr diminished, or by which any
rights or property whatever, are or purport to be» transferred^ con-
veyed, discharged, dim^ini^hed, pr in any n^smner affected, the punish-
ment of which is not hereinbefore presoribed, by which false making,
altering, forging, or counterfeiting, any person may be affected, bouna,
or in any way injured in his person or property,.

Is guilty of forgery in the. third degree. ^ ♦ f

^565. False ENTRIES IN PUBLIC books.] Every 'person who, with
intent to defraud, makes any false entry or falsely alters any* entry
made in any book of accounts kept in the office of the auditor of this
territory, or in the office of the treasurer of this territory, or of any
county treasurer, by which any demand or obligation, clami^ right, or
interest, either against or in favor of the people of this territory, or
any county or town, or any individual, is, or purports to be, discharged,
diminished, increased, created, or in any manner affected, is guilty of
forgery in the third degree. . ^

49

770 Ceimes Dbfihbd. ^ Penal Code^

§ 566. FoRGH^o PASSAGB TICKETS.] * EvBtj peTB^xk who, with intent
to defraud, forges, counterfeits, or fklsely alters any ticket, check, or
other paper or writing, fentitling or purporting to entitle the holder or
proprietor thereof to a pa;ssa^ upon any i^ailroad, bt in any vessel, or
other public convieyance; and ^ very person who, with like intent, sells,
exchanj^es, or delivers, or keeps orofferfe for ^feilef, exchange, or delivery,,
or receives upon any puri^hase, exichange, or dfeliveiy, any such ticket,
knowing the same to nave been forged, counterfeited, or falsely altered,,
is guilty of forgery in the third degree.

9 567. Pon&iNG DKiTBB STATES s'^AMPs.] Evory person who forges,
counterfeits, or alters any postage or r^enue Stamp of the United
States, or who' sells, or offers, or kee^s for sale, as genuine, or as forged,
any such stamp, knowing it to be foiged, counterfeited, or falsely
altered, is guilty of forgery in the third degree.

§568. Makino FALSE ENTRIES m ooBPORATB 600KS.] Bvcry porsott
who, with intent to deftuud, makesi any false entry, or falsely alters
any entry made in any book of accounts kept by any corporation
within this territoryj or in any book of accounts kept by any such
corporation or its officers, and delivered, or intended to be delivered, to
any person dealing with such corporation, by which ariiy^ pecuniary
obligation, claim, or credit is, or purports to be, discharged, diminished,,
increased, crelated, or in any manner affected, is guilty of forgery in
the third degree. < '

§ 569. Same.] Every person who, being a' member or officer, or in
the employment of any corporation, association, oi^ partnership, fal-
sifies, alters, erases, obliterates, or desltroys, any acicount, or book of
accounts^ or reccMvis belonging to such corporation, association, or
partnership, or appertaining to iheir business, or makes any false
entries in such account or book, or keeps any feilse account in such
business, with intent to defraiid his (Employers, or to conceal any
embezzlement of their ihoney or property, or atoy defalcation, or other
misconduct, committed by any person in the raanugementof their
business, is guilty of forgery in the fourth degree.

g 570. GouNTEAFEFT ooiK.I Every persoti who has in his possession
any counterfeit of any gold or silver coin, whether of the United
States, or of anr foreign countty or^goVemment, knowing the same to-
be counterfeited, with intent to sell, utter, use, circulate, or export the
«ame as trtie or as false, or by causing the same to be uttered or
passed, is giiilty of forgery in the fourth degree,

§ 671. Punishment of mbobrt.] Porgery is punishable by
imprisonment in the territorial prison as followsr

1. Forgery in tlie first degree, by imprisonment not less than ten
years^

2. Forgery in the second degipe, not exceeding ten years, and not
less than five.

8. Forgery in the third degree, not exceeding five years.

4. Forgery in the fourth degree^ by imprisonnielit in the territorial
prison not exceeding two years, or by imprisonment in a County jail
not exceeding ohe year. . •

% 572. Uttering pobosb instrument bR' coin.] Every person who^
with intenlf to defraud, utters, or publishes as true any forged, altered,,
or counterfeited instrumeni^ or any counterfeit gold or silver coin.

Penal Code. % Crimes Dbfii^bd. 771

• the forffing, altering, or counterfeiting of which is hereinbefore
declarea to be punishable, knowing such instrument, or coin to be
forged, altered, or counterfeited, is guilty of forgery in the same degree
as if he had forged, altered, or counterfeited the instrument or coin so
uttered, except as in the next section specified.

§ 673. Exception.] If it appears on the trial of the indictment,
that the accused received such forged or counterfeited instrument or
coin from another, in good faith, and for a good and valuable consider-
ation, without any circumstances to justify a suspicion of its beine
forged or counterfeited, the jury may find the defendant guilty of
forgery in the fourth degree.

§ 574. Fraudulently signing own name.] Every person who, with
intent to defraud, makes or subscribes any instrument in his own
name, intended to create,, increase, discharge, defeat^ or diminish any
pecuniary obligation, right, or interest, or to transfer or affect any
property whatever, and utters or passes such instrument, under the
pretence that it is the act of another who bears the same name, is
guilty of forgery in the same degree as if he had forged the instru-
ment of a person bearing a different name from his own.

§ 675. Fraudulent indorsing own nambJ Every person who, with
intent to defraud, indorses any negotiable instrument in his own
name, and utters or passes such instrument, under the fhiudulent pre-
tense that it is indorsed by another person who bears the same name,
is guilty of forgery in the same degree as if he had forged the indorse-
ment of a person bearing a different name from his own.

§ 576. Erasures and obliterations.] The total or partial erasure,
or obliteration of any instrument or writinjj, with intent to defraud,
by which any i)ecuniary obligation, or any right, interest, or claim to
property is, or is intended to be created, increased, discharged, dimin-
ished, or in any manner affected, is forgery in the same degree as the
false alteration of any part of such instrument or writing.

§ 577. Writing and written defined,] Every instrument partly,
printed and partly written, or wholly printed with a written signature
thereto, and every signature of an individual, firm, or corporation^ or
of any oflSoer of such body, and every writing purporting to be such
signature, is a writing or a written instrument, within the meaning of
the provisions of this chapter.

§ 578. Fictitious names.] The false making or forging of an evi-
dence of debt, purporting to have been issued by any corporation, and
bearing the pretended signature of any person, as w ageijit or officer of
such corporation, is forgery in the same degree as if suqh person wsms
at the time an officer or agent of such corporation; nqtw;ithstanding
such person may never have been an officer or agent of such corpora-
tion, or notwithstanding there never was any si^ch person in existence.

§ 579. Removing or destroyino icpRTaAaED ohatt^lsJ Every mort-
gagoif of personal property, or his legal representatives who, while his
mortgage thereof remains in force, and unsatisfied, wi]llfully destroys,
removes^ eonceals^ sells, or in any manner disposes of, or materially
iiyures the projjerty or any part thereoj^ covered by such mortgage,
without the written consent of the then holder of such mortgage,
shall be deemed guilty of. felony, and shall ujj^n conviction, be pun-
ished by imprisonmient in the territorial pri^on for a period not

772 Crimes Depinbd. Penal Code.

exceeding three years, or in the county jail not exceeding one year, *
and by fine not exceeding five hundred dollars.

CHAPTER XLIT.

LAliCENY.

§ 580. Larceny defined.] Larceny is the taking of personal prop-
erty accomplished by fraud or stealth, and with intent to deprive
another thereof.

§ 581. Larceny of lost property.] Ohe who finds lost property
under circumstances which give him knowledge or means of inquiry
as to the true owner, and who appropriates such property to his own
* use, or to the use of another person who is not entitled thereto, with-
out having first made such eflbrt to find the owner and restore the
property to him as the circumstances render reasonable and just, is
guilty of larceny.

§ 582. Grand and petit larceny.] Larceny is divided into two
• degrees; the first of which is termed grand larceny, the second petit
larceny.

§ 583. Grand and petit larceny.] Grand larceny is larceny com-
mitted in either of the following cases:

1. When the property taken is of value exceeding twenty dollars.

2. When such property, although not of valile exceeding twenty dol-
lars in value, is taken from the person of another.

Larceny in other cases is petit larceny.

§ 584. Punishment of orand larceny.] Grand larceny is pun-
ishable by imprisonment in the territorial prison not exceeding five
years. '

Li^x.<\^i^ §585. Petit larceny.] Petit 4arceny is punishable as a misde-
meanor.

§ 586. Grand larceny in house or vessel.] When it appears
upon the trial of an indictment for grand larceny that the larceny
alleged was committed in any dwelling house or vessel, the offender
may be punished by imprisonment in the territorietl prison not exceed-
ing eight years. '

% 5y7. In night tiice from person.] When it a]>pears upon such
trial, that such larceny was- ComrnittM by stealing in the night
time, from the person of another, the' offender may be punished
by irtiprisoninent in the territorial prison not exceeding ten yeai^.

§ 588. Larceny of written iNSTfttMENi*.] • If th^ thing stolM
consists of any evidence 6f debt or other written instrument, the
amount of money due therefupott^ or steijured to be paid thereby,
and remaining unsatisfied, of which in ' any contingency might be
collected thereon, or the value of the property, th6 title to which
is shown thereby, or the sum whi(^ might be recovered in the abeefnc e
thereof, as the case may be, «hall be deemed th^ value of the thing
stolen.

§ 589. Valtte op passage Tic«:Et.] If the thing stolen is any
tidcet, or other papel* or writing entitling, or purporting to entitle, the

Ptnal Code. Crimes Definxd. 773

holder or proprietor thereof to a passage upon any railroad or in any
vessel or other public conveyance, the price at which tickets entitling
a person to a like passage, are usually sold by the proprietors of such
conveyance, shall oe deemed the value of such ticket.

§ 590. Securities.] All the provisions of this chapter shall apply
where the property taken is an instrument for the payment of money,
evidence of debt, public securitv. or .passage ticket, completed and
ready to be issued or delivered, though the same has never been issued
or delivered by the makers thereof to any person as a purchaser or
owner*

§ 591. Severed fijctures.] All the provisions of this chapter shall
apply where the thing taken is any fixture or part of the realty, and
is severed at the time of the taking, in the same manner as if such
thing had been, severed by another person atsome previous time.

§ o92. Stbalino wrecked goods.] Every person who takes away
any goods from any stiunded or wrecked steamboat or other vessel, or
any goods floating on the water, or goods cast by the water upon the
shore, or goods lodged upon drifts, snags, or other obstructions in a
water course, or goods found in any creek, or who knowingly becomes
possessed of any such, and does not deliver the same, within forty-
eight hours thereafter, to the sheriff or the coroner of the county
where the same were found, is guilty of a misdemeanor.

§ 593. Receiving stolen property.] Every person who buys or
receives, in any manner, upon any consideration, any personal prop-
erty of any value whatsoever, that has been stolen from any other,
knowing the same to have been stolen, ia punishable by imprisonment
in the territorial prison not exceeding five years, or in the county jail
not exceeding six months, or by a fine not exceeding two hundred and
fifty dollars, or by both such fine and imprisonment.

§ 594. B'raudulent consumption op gas.] Every person, who, with
intent to defraud, makes or causes to be made, any pipe or other
instrument, or contrivance, and connects the same, or causes it to be
connected with any pipe laid for conducting illuminating gas, so as to
conduct gas to a point where the same may be consumed without its pass-
ing through the meter provided for registering the quantity consumed,
or in any other manner so as to evade paying therefor, and every per-
son who with like intent injures or alters any gas meter, or obstructs
its action^ is guilty of a misdemeanor.

§ 595. Larceny out of territory.] Every person who steals the
property of another in any other state or country, and brings the same
into this territory, may be convicted and punished in the same man-
ner as if such larceny had been committea in this territory; and such
larceny may be charged to have been committed in any town or city
into or through whicn such stolen property has been brought.

774 Crimes Bbvinbd. Penal Code.

CHAPTER XLV.

EMBEZZLEMENT.

§ 596. Embezzlement defined.] Embezzlement is the firandulent
appropriation of property by a person to whom it has been entrusted.

§ 597. When opfiobr guilty op.] If any person, being anj officer,
director, trustee, clerk, servant, or agent of any association, society,
or corporation, public or private, fraudulently appropriates to
any use or purpose not in the due and lawful execution of his
trust, any property which he has in his jpossession or under his
control in virtue of his trust, or secretes it with a fraudulent intent to
appropriate it to such use or purpose, he is guilty of embezzlement

§ 598. When carrier or other ouilty op.] If any carrier or other
person having under his control personal property f6r the purpose of
transportation for hire, fraudulently appropriates it to any use or
purpose inconsistent with the safe keeping of such property and its
transportation according to his trust, he is Ruilty of embezzlement,
whether' he has broken the package in which such property is con-
tained or has otherwise separated the items thereof, or not.

§ 599, When trustee, ac, guilty op.] If any person, being a
trustee, banker, merchant, broker, attorney, agent, assignee in trust,
executor, administrator, or collector, or being otherwise entrusted
with or having in his control property for the use of any other person,
ou for any public or benevolent purpose, fraudulently appropriates it to
any use or purpose not in the due and lawful execution of his trust, or
secretes it with a fraudulent intent to appropriate it to such use or
purpose, he is guilty of embezzlement.

§ 600. Bailee guilty of.] If any person being entrusted with any
property as bailee, or with any power of attorney for the sale or
transfer thereof, fraudulently converts the same or the proceeds thereof
to his own use, or secretes it or them with a fraudulent intent to
convert to his own use, he is g:uilty of embezzlement, whether he has
broken the package or otherwise determined the bailment or not.

§ 601. Clerk or servant.] If any clerk or servant of any private
person Or copartnership or corporation, except apprentices and persons
within the age of eighteen years> fraudulently appropriates to his own
use, or secretes with a fraudulent intent to appropriate' to his own
use, any property 6f anv other person, which has come into his con-
trol or care by virtue of his employment as such <5lerk or servant, he is
guilty of embezzlemefnt. . .

§ 602. Distinct taking' not 4^eoessary.] A ■ dilstinct act of taking
is not necessary to constitute embezzlemen,t, "but any fraudulent
appropriation, convei'sion, or use of property, coming within the
above prohibitions, is sufficient.

§ 603. Evidence of debt.] Any evidence of debt, negotiable by
delivery only, and actually executed, is equally the subject of embez-
zlement whether it has been actually delivered or issued as a valid
instrument or not.

§ 604. Claim of title.] Upon any indictment for embezzlement it
is a sufficient defense that the property was appropriated openly

J^enal Code. Cbimes Defined. 775

:a,Qd avowedly, and under a claim of title preferred, in good faith
even though such claim is untenabla But wis provision 3haU not
-excuse the retention of th^ property oi another^ to offset or. pay
demand held, against him»

§ 605. Intent to bestqile vo^ sgsFEtf^E.] . The fact that the accused
intended to restore tjba property eml>ezzled» is no ground of defense,
or of mitigation of pmushmeni if it has not been restored before an
information has been laid before a ipaagistrate,. chaa*ging the commis-
sion of the ofiGense. ,

§ 606. MiTjoATioN OF ]?mf§B.yLmT.] Whenever it is .made to appear
-that i)rior to any information laid before a magistrate^ charging the
<H>mmi6sion. of pmbes^zlemeqt, the person accused, voluntarily and
^u^tually restored or tendered restoration of ihe property alleged to
liave been embezzled, or any part thereoi^ such fact is not a ground of
<lefense to the indictmeni^ but it authorizes the court to mitigate
punishment in its discretion.

§ 607. Punishment.] Every person guilty of embezzlement is
punishable in the manner prescribed for feloniously stealing property
of the value of that embezzled. And where the property embezzled
is an evidence of debt or right in action, the sum due upon it, or
secured to be paid by it, shall be taken as its value.

CHAPTER XLVI,

EXTORTION.

§ 608. £xtobtxok defined.] Extortion is the obtaining of property
from another with his consent, induced by a wrongful use of force or
fear, or under color of official right.

§ 609. What threats constitute extoibtion.] Fear, such as will
constitute eiitortion, may be induced by a threat, either:

1. To do an unlawful injury to the person or property of th^ indi-
vidual threatened, or to any relative of his, or member of his
family; or,

2. To accuse him, or any relative of his, or member of his family^of
any crime; or, , ^ . -. ■

3. To expose, or impute to him, or them, any deformity or dis-
grace; or, ; . ... . '

4. To expose, any secret inffeeting. him or them.

§610. JPuNrtHMENT.l Every persqu who. extorts a^y money or
other piroperty &om another,) under circumstanoes not amounting to
TObberyyil^ mestna of force, oi;iany thifeat 3uph *8 ia mentioned i^ the
last section, is punishable- bsy< impfri^fonmient in the territorial ^nson
not exceeding five years. . , . , , , . . . . ; i ,

§ 6U... . Same.] 'Every < person who commits any extprtjon .iMK^er
color oft offiejjal, bright, itt iW^es for. which a different puai^hment is not
prescribed by this oode^ or by $ome;Of tbfl, statutes which it .specifies
as continuing in forces is < guilty of a misden^W^nor* ... . . ,

§612, OBTAUfjN((^.^iGjfA!pp*E^] JEvccy pejcsou ij^hOi by is^ny p j^tor-i
tionate means, obtains from another, hiasigiiature, to ^^y paper or

776 Orimbs Defined. Penal Code^

instrui^ent, whereby, if such signature were freely given, any prop-
erty would be transferred, or any debt, demand, charge, ot right of
action created/ is punishable in the same mannfer as if the actual
delivery of such property or payment of thd amount of such debt,
demand, charge, or right of action were obtained. •

§ 618. Sending thrbatbnino leipwjbs.] Every person who, with intent
to extort any money or other property rrom another, sends to any per-
son any letter or other' writing, whether subscribed or not, expressing
or impljdng, or adapted to imply, any threat, such as is specified in
section 609, is punishable in the same manfteras if such money or
property were actually obtained by means of sruch threat.

§^614. ATTEMPTS TO :fi!XT0RT MONEY.] Evory person who unsuccess-
fully attempts, by mefans of any verbal threat, such as is specified in
section 609, to extort money or other property from another, is guilty
of a misdemeanor.

CHAPTER XLYIT.

FALgE PERSONATION AND CHEATS.

§ 615. Falsely personating another.] Every person who falsely
personates another, and in such assumed character, either:

1. Marries or pretends to marry, or to sustain the marriage relation
towards another, with or without the connivance of such other
person; or,

2. Becomes bail or surety for any party in any proceeding whatever,
before any court or officer authorized to take such bail or surety; or,

3. Subscribes, verifies, publishes, acknowledges, or proves, in tiie
name of another person, any written instrument, with intent that the
same may be delivered or used as true; or,

4. Does any other act, whereby, if it were done by the person falsely
personated, he might in any event become liable to any suit or
prosecution, or to pay any sum of money, or to incur any charge, for-
feiture or penalty, or whereby any benefit might accrue to the party
personating, or to any other person.

Is punishable by imprisonment in the territorial prison not exceed-
inff ten years.

§616. Falsely personating and receiving.] Every -person who
falsely personates another, and in such assigned character receives any
money or property, knowing that it is intended to be delivered to the
individual so personated, with intent to oonvert the same *to his own
use, gr to that of anotiher person who is not entitled thereto, is
punishable in the same manner and to the same extent as for larceny
of the money or property so received.

§617. Personating ofpiobrs and otheas.] Every person who
falsely personates any public officer, civil or military, or any fiteman,
or any private individual having special authority by law to perform
any act aflecting the rights or interests of another, or assumes, with-
out authority, anjr uniform or badge, by which such are ufeually dis-
tinguished, and in such assumed character does any act whereby

Petial Code. Cbikm Dbfivbd. ' 777

another person is injured, defrauded, vexed, or annoyed, is guilty of a
misdemeanor. !

§618. Obtainhtg property by false pretenses.] Every person,
who, with intent to cheat or defoaud • another, designedly, by color or
aid of any false token or writing, or other false pretense, obtains the
signature of any person to any written instrument, or obtains from
any person any money or property, is punishable by imprisonment in
the territorial prison not exceeding three years, or in a county
jail not exceeding one year, or by a fine not exceeding three times the
value of the money or property so obtained, or by both such fine and
imprisonment.

§ 619. For charitable purposes.] Every person who designedly^
by color or aid of any false token or writing, or other false pretence,
obtains the signature of any person to any written instrument, or
dbtains from any pei'son any money or property for any alleged charita-
ble Qr.beneyolent purpose whatever, is punishable by imprisonment in
the territorial prison not exceeding three years, or in a county jail not
exceeding one year, or by a fine not exceeding the value of the money
or property so obtained, or by both such fine and imprisonment.

§ 620. False pretenses.] If the false token by which any money
or property is obtained in violation of sections 618 and 619, is a
promissory note or other negotiable evidence of debt purporting to be
issued by or under the authority of any banking company or corpora-
tion not in existence, the person guilty of such cheat is punishable by
imprisonment in the territorial prison not exceeding seven years, .
instead of by the punishments prescribed by those sections.

§ 621. Using false check.] The use of a matured check, or other*
order for the payment of money, as a means of obtaining any
signature, money, or property, such as is specified in the last two sec-
tions, by a person who knows that a drawer thereof is not entitled to
draw, for the sum specified therein, upon the drawee, is the use of a
false token within the meaning of those sections, although no
representation is made in respect thereto.

§ 622. Mock auctions.] Every person who obtains any money or
property from another, or obtains the - signature of another to any
written instrument, the false making of which would be forgery, by
means of any false or fraudulent sale of property or pretended prop-
erty by auction, or by any of the practices kxiown as mock auctions, is
punishable by imprisonment in the territorial prison not exceeding
three years, or in a county jail not exceeding one year, or by a fine not
exceeding one thousand dollars, or by both such fine and imprison-
ment, and, in addition thereto, he forfeits any license he may hold to
act as an auctioneer, and is forever discj^oalified from receiving a
license to act as auctioneer within this. territory.

I ,

778 * Cbiioeb Dbixvbd. Penal Code.

CHAPTER XLVIII.

I

FRAUDULENTLY FITTING OUT AND DE6TROVINO VB8BBL8.

§623. Willfully destroying vessel.] Every captain or other
officer or person in command or charge of anjj vessel, who within this
territory willfully wrecks, sinks, or otherwise injures or destroys such
vessel, or any cargo in such vessel, or willfully permits the same to be
wrecked, sunk, or otherwise injured or destroyed; with intent to
prejudice or defraud an insurer or any other person, is punishable by
imprisoument in the territorial prisfon for life.

§624. Same.] Every person other than such as are embraced
within the last section, who is guilty of any act therein prohibited, is
punishable by imprisonment in the territorial prison not exceeding ten
years and not less than three.

§ 625. Intent to wreck vessel.] Every persoii guilty of fitting
out any vessel, or lading any cargo on board of any vessel, with
intent to cause or permit tne same to be wrecked, sunk, or otherwise
injured or destroyed, and thereby to prejudice or defraud an insurer or
any other person^ is punishable by imprisonment in the territorial
prison not exceeding ten years, and not less than three.

§ 626. Making false manifest.] Every person guilty of preparing,

making or subscribing any false or fraudulent manifest,, invoice, biU

of lading, boat's register or protest, with intent to defraud another, is

punishable by imprisonment in tne territorial prison not exceeding

•three yeai^, or by a fine not exceeding one thousand dollars, or both.

CHAPTER XLIX.

fraudulent destruction of property insured.

§ 627. Destroying- property insured.] Every person who willfiilly
bums, or in any other manlier injures or destroys any property
whatever, which is at the time insured against Iosb or damage by fire,
or by any other casualty, with intent to defratid or piieiiidioe the
insurer, whether the same b^ the property of sia<5h person or of any
other, is punisbabte by imprisonment in the temtorial prison not
exceeding seven years, and not lees than foiw.

§ 628. False proofs.] Every person who preseclts' or causes to be
presented any false or fraudtilent claim, or any proof in support of
any such claim, upon any contract of insurance, for the- payment
of any loss, or who prepares, makes, or subscribes any account, cer-
tificate, survey, affidavit, proof of loss, or other book, paper, or
writing, with intent to present or use the same, or to allow it to
be presented or used in support of any such claim, is punishable by
imprisonment in the territorial prison not exceeding three years, or
by a fine not exceeding one thousand dollars, or both.

Penal Code, Crimbs DBFiNBi>. 781

uy under-

CHAPTER L. " W^'

nisde-

FALSE WEIGHTS AND MEASURES. <^j.

§ 629* False weights atto measukbs.] If any perfeon with intent
to defrand, nse a false balance, weight, or meamire, in the weighing
or measuring of anything' whatever, that is purchased, sold, bartered,
shipped or delivered, for sale or baiter, or that is pledged, or given in
payment, he shall be punished by fine not exceeding one hundred dol-
lars, nor less than five dollars; or by imprisonment in the county jail
not more than thirty days, or by both such fine and imprisonment;
and shall be liaible to the injured party in double the amount of
damages.

§ 6SD. Retaining same.] Every person who retains in his posses-
sion any weight or measure, knowing it to he false, unless it appears
beyond a reasonable doubt that it was so retained without intent to
use it, or permit it to be used in violation of .the last section, shall be
punished as therein provided.

§ 631. Authorized to be seized.] Every person who is authorized
or enjoined by law to arrest another person for a violation of sections
629 and 690, is equally authorized and enjoined to seize any false
weights or measures found in the possession of the person so arrested,
and to deliver the same to the magistrate before whom the person so
arrested is i*equired to be taken.

§ 682. Mat be tested Akd destroyed.) The magistrate to whom
any weight or measure is delivered pursuant' to the last section, shall,
upon the examination of the accusea, or if the examination is delayed
or prevented, without awaiting such examination, cause the same to
be tested by comparison with standards conformable to law; and if he
finds it to be false, he shaH'^atise it to be destroyed, or to be delivered
to the district attomely of the county in which the accused is liable to
indictment or trial, as the interests of justice in his judgment require.

§ 638. Shall be destroyed — when.] Upon the conviction of the
accused, such district attorney shall cause any weight or measure in
respect whereof the accused stands convicted, and Which remains in
the possession or under the control of such district attorney, to be
destroyed.

§ 634. Stamping false weight or tare.] Every person who know-
ingly marks or stamps false or short weight, or false tare on any cask
or package, or knowingly sells or offers for sale any cask or package so
marked, is guilty of a misdemeanor.

CHAPTER LI.

. . PBAUDTOENT j^SpiyENQ^E^ BY iNDiyiDL>LS.

§ 685. FRAtTptfLEiftr ooNVEtAtfOE.] ' ! 'Every perscm who, being a party
to any conveyance* or assignment of uny real or personal property, or
of any interest therein, made or created with intent^ to defraad prioi:

/

778

CRiUBe Defined.

Penal Code^

B, or to hinder, delay, or defraud creditors or
' persdn being privy to or knowing of such
t)r charge, who willrally puts the same in use
iood faith, is guilty of a misdemeanor.
EMOVAL OF PROPERTY.] Evcry porsou who
rty out of any county, with intent to prevent
\d upon ]t)y any execution or attachment, or
ivey§, or otherwise disposes of any of bis
)fraud any creditor^ or to prevent such prop^
the payment of his debts, and every person

who receives any such property with such intent^ is guilty of a misde-
meanor.

§ 637. Assignments — when prohibited.] Every person who, know-
ing that his property is insufficient for the payment of all his lawful
deotsj assigns, transfers, or delivers any property for the benefit of
any creditor or creditors, upon any trust or condition, that any
creditor shall receive a preference or priority over any otiier, except
in the cases in which su(5p preference is expressly allowed to be given
by law, or with intent to create such preference or priority, is guilty
of a misdemeanor.

§ 638. Frauds in bankruptcy.] Everv person who, upon making
or prosecuting any application for a discharge as an insolvent debtor,
under the provisions of any law now in force, or that may hereafter
be enacted, either:

1. Fraudulently presents, or authorizes to be presented on his behalf
such apnlication; in a case in which it is not authorized by law; or,

2. Makes or presents to any court or officer, in support of such
application, any petition, schedule, book, account^ voucner, or other
paper or document, knowing the same to contain any false state-
ment; or,

3. Fraudulently makes and exhibits or alters^ obliterates or destroys
any account or voucher relating to the condition of his affairs, or any
entry or statement in such account or voucher; or,

4. Practices any fraud upon any creditor, with intent to induce him
to petition for, or consent to such discharge; or,

0. Conspires with or induces any person fraudulently to unite as
creditor in any petition for such dischiarge, or to practice any fraud in
aid thereof.

Is guilty of a misdemeanor.

CHAPTER LII.

FRAUDULENT INSOLVENCIES BY CORPORATIONS, AND OTHER FRAUDS, IN

THEIR MANAGEMBXIT.

§ 639. Fraud in subscriptions for stock.] Every person who signs
the name of a fictitious person to any subscription ror, or agreement
to take sto<^ in any corporation, existing or iH^oposed; and every
person who signs, ta any subscription or agreement, the name of any
person, knowing that such peiBon has not means or does not intend in

Penal Code. Crimes Defined. 781

igood faith to comply with all the terms thereof, or under any under-
handing or agreement that the terms of^uch subscription or a^ee-
ment are not to be complied with or enforced, is guilty of a misde-
meanor.

§ 640. Frauds in procurino oroanikation.] Eve*y officer, agent, or
clerk, of any corporation, or of any persons proposing to orji^anize a
<:;orporation, or to increase the capital stock of any corporation, who
knowingly exhibits any false, forged, or altered book, paper, voucher,
security, or other instrument of evidence to any public officer or
board authorised by law. to examine the organization of such corpora-
tion, or to investigate its aflfairs, or to allow an increase of its capital,
with intent to deceive such- officer or board in respect thereto, is
punishable by imprisonment in the territorial prison not exceeding
ten yeai^ and not less than three yeai*s.

§ 641. Unauthorized use of names*} Every person, who, without
being authorized so to do, subscribes the name of aiiother t0i» or inserts
the name of another in any prospectus, circular, or other advertise-
ment or announcement of any corporation or joint .stock associa-
tion existing, or intended to be formeii, With intent to permit the same
to be published* and thereby to- lead parsons to believe . tJ!^t the person
whose name is so subscribed is an officer, agents member,, or promoter
of such corporation or association, is guilty of a misdemeanor.

§ 642. MisooNDucT OF DiREOTORS;] E Very ditoctor of auy stock cor-
poration, who concurs in any vote or -act of the directors of such
•corporation, or any of them, by. which it is intended, either:

1. To make any dividend, except from the surplus profits arising
from the business of the corporation, and in the cases and manner
-flowed by law; or,

2, To divide, withdraw, or in any manner pay to the stockholders, or
any of them, any part of the capital stock of the corporation; or to
2^uce such capital stock without the consent of the legislature; or,

8. To discount or receive any note or other evidence of debt in pay-
ment of any installment actually called in, and required to be> paid,
or with the intent of providing the means of making such pay-
ment; or,

4. To receive or discount any note or other evidence^ of xiebt with
the intent of enabling any stockholder to withdtaw any part of the
money paid in by him, or his stock; or,

5. To apply any portion of the funds, erf isuch oorporation, except
surplus profits, directly or indirectly^ to the purchase of ahares of its
own stock; or, . ••

. 6. To receive any such shares in payment or satisfaction of any debt
due to such corporation ; or, .

7. To receive from any oth^r stock corporation, in exchange for the
shares, notes, bonds, or other Evidences of debt of their own corpora-
tion, shares of the capital stock of such other corporation, or notes,
Ibonds, or other evidences of debt issued by such other corporation^

Is ffuilty of a misdemeanor; (k V, ^^ ^ b <»i» ^ «^V T

§ ^3. • Same in BANxSi] Every director of any corporation having
banking powers, who concurs in any vote or act of the directors of
such corporation, or any of them, by which it is intended, either:

782 Grimes Defined. Penal Code.

1. To make any loan, or diseount, by wMch the whole amount of the
loans and discounts of the corporai^ion is made to exceed three times
its capital stock then paid in and actually possessed; or,

2. To make any loan or discount to any director of such corporation,
or upon paper upon which any such director is responsible, to an
amount exceeding in the aggregate one-third of the capital stock of
such corporation then paid m and actually possessed,

Is guilty of a misdemeanor. •

§ 644. Loans not invalid.] ' Npthing in the last section shall ren-
der any loan made by the directors of any such- corporation in viola-
tion thereof, invalid.

§ 645. Sale, ao., op bank notes.} Every officer or agent of any oor-
poration having banking powers, who sells, or causes or permits to be
sold, any bank notes of such corporation, or pledges, or hypothecates^
or causes or permi1» to be pledj^ed or hypothecated, with any other
corporation, association, or individual, any «uch- notes, as a security for
a loan or for any liability of such corporation, is punishable by imprison-
ment in a county js^il not exceeding one year, or by a fine not exceed-
ing five thousand dollars, or both.

§ 646. CiBCULATiNo Excess OP bank notes.} Every officer or agent
of any corporation having banking powers, who issues or puts in
circulation, or causes or permits to be issued or put in circulation,
the bank notes of such corporiEition, to an amount, which, together
with previous issues, leaves in circulation, or outstanding, a greater
amount of notes than such corporation is allowed by law to issue and
circulate, is punishable by imprisonment in a coudty jail not exceeding
one year, or by a fine not exceeding five thousand dollars, or both.

§ 647. Oppioeb making guarantee or indorsement.] Every officer
or agent of any banking corporation, ' who makes or delivers any
^arantee or endorsement upoit behalf of such corporation, whereby
it may become liable upon any of its discounted notes, bills or obliga-
tions, in any sum beyond the amount of loans and discounts which
such corporation may legally make, is guilty of a misdemeanor.

§648. Overdrawing ACCOUNT.] Every officer, agent teller, clerk^
or servant of any bank, banking association, or savings bank, who
knowingly overdraws his account with such bank, and thereby
wrongfully obtains the money, notes, or funds of such bank, is guilty
of a misdemeanor.

§ 649, Omitting to enter rbokipt.] Every director, officer, or
agent of any corporation or joint stock association, who knowingly
receives or possesses himself of any property of such corporation or
association, o4)herwise than in payment of a just demand, and whor
with intent to defraud, omits to make, or to cause or direct to be made,
a full and true entry thereof, in the books or accounts of such corpo-
ration or association, is guilty of a misdemeanor.

§ 650. Destroying or palsipying books.] Every director, t)fficer,
a^ent, or member of any corporation or joint stock association, who,
with intent to defraud^ destroys, alters, mutilates, or faMfies any of
the books, pap^ers^ writings, or securities belon^ngto such corporation
or association, or makes or concurs in making any false entry or
omits or concurs in omitting to make any material entry in any
book of accounts, or other record or document kept by such corpora-

Penal Code. Cbimbs Dbfutbd. 78S

tion or association, is punisbahle by imprisonment in the territorial
prison not exceeding ten years, and not less than three, or by impris-
onment in a county jail not exceeding one year, or by a fine not
exceeding five hundred dollars, or by both such fine and imprisonment.

§ 661. PuBLiBHiNa FALSE HBPOBTB.j Every director, officer, or agent
of any corporation or joinit stock association;, who knowingly concurs in
making, or pubiisfaes ah<y written report, exhibit, or statement of its
affairs or pecuniary condition, containing any material statement
which is false^ other than such as are mentioned in sections 640
and 641, or willfall^ refuses or neglects to make or deliver any
written report, exhibit or statement required by law, is guilty of a mis-
demeanor.

% 653. RBFtrsiKe ro pi»imit iKSPEOTroo?.] Every officer or agent of
any corporation having or keeping an office within this territory, who
has in nis custody or control any book, paper, or document of such
corporation, and who refuses to give to a stockholder, or member of
sucn corporation, lawfully demanding, during office hours, to inspect
or take a copy of the same, or any pad*t thereof, a reasonable oppor-
tunity so to do, is guilty of a misc^emeanor.

% 653. Insolvsnohbs dbsmsd FRAUMnjiNT;] Every insolvency of a
moneyed corporation is deemed fraudulent, unless its* afGEiirs appear^
upon investigation, to have been administered feirly and legally, and
generally with the same cara and diligence that agents receiving a
compensation for their services are bouoid by law to observe.

§^ d54. How PUKiSHABLs;.} In every case of a imudulent insolvency
of a moneyed corporation, every director thereof who participated in
such fraud, if no other punishment is prescribed therefor by this code,
or any of .the acts which are specified as continuing in force, is guilty
of a misdemeanor.

§ 655. Violation of Dutv,] Every director of any moneyed corpora-
tion, who willfully does any act as such director, which is expressly for-
bidden by law, or willfully omibs to perform a^y duty expressly imposed
upon him as such director, oy law, the punishment for which act or
omission is not otherwise prescribed by this oode, or by Some of the
acts which it specifies as cohtiHuing in force, is guilty of a misde-
meanor.

§ 656. CozffTBACTiNo BBBT, ExcBBTDiNG MEANS.] Evory officer, agout,
or stockholder of any railroad company who knowingly assents to, or
has any agency in contracting, any debt, by, or on behalf of such,
company, unauthorized by a spepial law for the purpose, the amount
of which debt witii other debts of the company, exceeds its available
means for the payment of ilfs debts, in its possession^ under its control,
and belonging: to it, at the tim/e such debt is contracted, including it&
bona fide and available stock subscriptions, and exclusive of its real
. estate, is guilty of a misdemeanor. (lv.V*^-^<>^' \"\^

§ 657. Debt not invalid.] The last section does not affect the
validity of a debt created in violation of its provisions, as against the
company.

§ 658. Director prbsvmbi) to havb knowli^bob.] Every director of
a corporation, or joint stock association, is;deemed to possess such
a knowledge of the affairs of his ^corporation, as to enable him to-

784 Cbiices Dbfinbd; Penal Code.

determine whether any act, proceeding, or omission of its directors, is
a violation of this chapter.

§ 669. When «>re8umed to havb assented.] Every director of a
corporation, or joint stock association, who is present at a meeting of
the directors, at which any act proceeding, or amission of such direc-
tors, in violation of this chapter occurs, is deenrod to have concurred
therein, unless heat the time causes, or in writing requires, his dissent
therefrom to be entered in the minutes of the directors.

§ 660. Same, when absent.] Every director of a corporation, or
joint stock association, although not present at a meeting of the
directors, at which any act, proceeding, or omission of such directors,
in violation of this chapter occurs, is deemed to have concurred therein,
if the fact, constituting such violation appear on the records or
minutes of the proceedings of the board of directors; and he remains
a director of the same company tor six months thereafter, and does
not, within that time, cause, or in writing require his disaent from
isuch illegality to be entered in the minutes of the directors*

§ 661. FoBEiaN ooBFOBATiONs.] It is no defense to a prosecution for
a violation of the provisions of this chapter, that the- corporation was
one created by the laws of another bbaAe, government, or country, if it
was one carrying on business, or keeping an officer therefor, within this
territory.

§ 662. DiBBOTOB BEFiNED.} The term director, as used in this
chapter, embraces any of the persons having by law the direction or
management of the affairs of a corporation, by whatever name such
persons are described in its charter, or known by law.

t ■ ^ ■ '

CHAPTER LIII.

I

FRAUDS m THE SALE OF PASSAGfE TICKETS.

§ 663. Passaoe tIokets— to bb sold by whom.] 'No person exce|>t
the persons designated in section 670^ shall issue^ or sell, or offer to
sell, within this territory, any passage ticket, or any instrument given
or purporting to give any right either absolutely or upon any condi-
tion or contingency, to any passage or conveyance upon any vessel or
railroad strain, unless he is an authorized agent of the owners or con-
signees of such vessel, or of the company rnnning such train, and no
person is deemed an authorized agent of such owners,* consignees, or
company,' within the meaning of this chapter^ unless be has been by
them duly appointed by an authority in writing, and which designated
the name of the company, line, vessel, or railroad for which such
person is authorized to act £es agent, together with the street and
number of the street, and the city, town, or village in which his office
shall be kept, for the sale of passage tickets.

§ 664. Same— restbictions.] No persons except the persons designated
in section 670 shall, within . this territory, ask, take, or l)eceive any
money or valuable thin^ as a consideration for any passage or con-
veyance upon any vessel^or railroad train, or for the procurement of
any ticket, or instrument giving or purporting to give any right, either

I

f

Penal Code. Crimbs Defined. 785

absolutely, or upon any condition, or contingency, to any passage or
conveyance upon any vessel, or railroad train, unless he is an authorized
agent within the provisions of the last section; nor shall any person,
as such agent, sell any such ticket or instrument, or ask, take, or receive
any consideration for any such passage or conveyance, excepting at
the office designated in his appointment, nor until he has been
authorized to act as such agent according to the provisions of the pre-
ceding section, nor for a sum exceeding the price charged at the
time of such sale, by the company, owners, or consignees of the vessel
or railroad referred to in such ticket. Nor shall any such ticket or
instrument be issued or sold, which purports to entitle a person to a
passage by any mode of conveyance, or to any place of destination, or
by any route, vessel, or train, other than the one bargained for.

§ 665. Unlawfully procuring tickets.] No person other than an
agent appointed, as provided in section 663, shall sell, or offer to sell,
or in any way attempt to dispose of any order, certiiScate, receipt, or
other instrument for the purpose, or under the pretense of procuring
any ticket, or instrument mentioned in section 663, upon any company
or line, vessel or railroad train therein mentioned. And every such
order sold or offered for sale by any agent, must be directed to the
company, owners, or consignees at their office;

§ 666. Punishment.] Every person guilty of a violation of any of
the provisions of the preceding sections of this chapter, is punish-
able by imprisonment in the territorial prison not exceeding two
years, or by imprisonment in a county jail not less than six
months.

§ 667. Conspiring to sell passage tickets.] All persons who con-
spire together to sell or attempt to sell, to any person, any passage
ticket, or other instrument mentioned in sections 663 and 665, in violar
tion of those sections, and all persons, who, by means of any such con-
spiracy obtain, or attempt to obtain, any money or other property,
under the pretense of procuring or securing any passage or right of
passage in violation of this chapter, are punishable by imprisonment
in the territorial prison not exceeding five years.

§ 668. Conspirators may be indicted.] Persons guilty of violating
the last section, may be indicted and convicted for a conspiracy,
notwithstanding the object of such conspiracy has been executed.

§ 669. Certain offices declared disorderly houses,] All offices
kept for the purpose of selling passage tickets in violation of any of
the provisions of this chapter, and all offices where any such sale is
made, are deemed disorderly houses; and all persons keeping any such
office, and all persons, associating together for the purpose of violating
any of the provisions of this chapter, are punishable by imprisonment
in a county jail for a period not exceeding six months, and not less
than three months.

§ 670. Who allowed to sell tickets.] The provisions of this
chapter do not prevent the actual owners or consignees of any vessel,
from selling passage tickets thereon, nor do they prevent the pur-
ser or clerk of any vessel, or station master upon any railroad, or other
ticket ^agent of any vessel or railroad, from selling in his office on
board of such vessel, or in any station on such railroad, any passage
tickets upon such vessel or railroad, nor do they prevent any conductor

50

786 Crimbb Defined. Penal Code,

upon any railroad from selling any passage tickets upon the trains of
such railroad.

§ 671. Delay in i>bparturb of vessels.] Whenever the departure
of any vessel, for a passage on board of which, to a port without this
territory, any ticket or instrument above mentioned has been sold,
is delayed more than two days after the day of departure mentioned
in such ticket, the person holding such ticket is entitled to his board
and lodging in such vessel without any additional charge, from the
second day after the day named for departure until the actual depart-
ure of such vessel, and is also entitled to receive from the owners or
consignees of such vessel, fifty cents per day for each day of such
detention. And in case of refusal on the part of the owners, con-
signees, or master of the vessel so detained, to comply with this
section, the person holding such ticket is entitled to recover back
from the owners or consignees the amount of passage paid by him,
together with his damages for such detention, not exceeding fifty
dollars.

§ 672. Passage tickets — requisites.] Every ticket or instrument
issued as evidence, of a right of passage upon the Missouri river, from
any port in this territory, to any port of any other state or terri-
tory, and every certificate or order issued for the purpose, or under
pretense of procuring any such ticket or instrument, and every
receipt for money paid for any such ticket or instrument must state
the name of the vessel on board of which the passage is to be made,
the name of the owners or consiKnees of such vessel, the name of the
company, or line, if any, to whicn such vessel belongs, the place from
which such passage is to commence, the place where such passage is
to terminate^ the day of the month and year upon which the voyage
i? to commence, the name of the person or persons purchasing such
ticket or instrument, or receiving such order, certificate, or receipt,
and the amount paid therefor; and such ticket or instrument, order,
certificate, or receipt, unless sold or issued by the owners or consignees
of such vessel, must be signed by their authorized agent.

§ 673. Not filled out— misdemeanor.] Every person who issues,
sells, or delivers to another, any ticket, instrument, certificate, order,
or receipt, which is not made or filled out as prescribed in the last
section, is guilty of a misdemeanor.

'§ 674. Kequisites op indictment.] No indictment or conviction
under any provision of the preceding sections of this chapter, for the
sale, attempted sale, issuing or delivering of any ticket, instrument
certificate, order, or receipt, is defective, because such ticket, instru-
ment, certificate, order, or receipt is not made or filled out according
to the requirements of the last section.

§ 675. Company defined.] The term company, as used in this
chapter, includes all corporations, whether created under the laws of
this territory, or of those of any other state or nation.

§676. Foreign railroad companies.] The provisions of this chapter
do not permit railroad companies incorporated in any other state to
sell passage tickets under this chapter in this territory; nor do they
permit the owners or agents of any vessel to sell tickets for or on
behalf of any such railroad company, unless such agent be a resident
of this territory.

Penal Code. Crimes DEFil^Et>. 787

CHAPTER LIY.

FRAUDULENT ISSUE OF DOCUMENTS OF TITLES TO MERCHANDISE.

§ 677. Bills op lading.] Every person being the master, owner, or ^
agent of any vessel, or officer, or agent of any railroad, express, or
transportation company, or otherwise being or representing any car-
rier who delivers any bill of lading, receipt, or other voucher, or by
which it appears that, any merchandise of any description has been
shipped on board any vessel, or delivered to any railroad, express, or
transportation company, or other carrier, unless the same has been so
shipped or delivered, and is at the time actually under the control of
sucli carrier, or the master, owner, or agent of such vessel, or of some
officer or agent of such company, to be forwarded as express in such
bill of lading, receipt, or voucher, is punishable by imprisonment in
the territorial prison not exceeding five years, or by a fine not exceed-
ing one thousand dollars, or both.

§ 678. Warehouse receipts.] Every person carrying on the busi-
ness of a warehouseman, wharfinger, or other depositary of property,
who issues any^receipt, bill of lading, or other voucher for any mer-
chandise of any description which has not been actually received upon
the premises of such person, and is not under his actual control at the
time of issuing such instrument, whether such instrument is issued to
a person as being the owner of such merchandise, or as security for
any indebtedness, is punishable by imprisonment in the territorial
prison not exceeding five years, or by a fine not exceeding one thou-
sand dollars, or both.

§ 679. Exceptions.] No person can be convicted of any offense
under the last two sections by reason that the contents of any barrel,
box, case, cask, or other vessel or package mentioned in the bill of lad-
ing, receipt or other voucher did not correspond with the description
given in such instrument of the merchandise received, if such descrip-
tion corresponded substantially with the marks, labels, or brands upon
the outside of such vessel or package, unless it appears that the
accused knew that such marks, labels, or brands were untrue.

§ 680. Duplicate reoidipts.J Every person mentioned in sections
677 and 678, who issues any second or duplicate receipt or voucher, of
a kind specified in those sections, at a time while any former receipt
or voucher for the merchandise specified in such second receipt is out-
standing and uncanceled, without writing across the face of the same
the word " duplicate," in a jjlain and legible manner, is punishable by
iniprisonment in the territorial prison not exceeding five years, or by
a fine not exceeding one thousand dollars, or both.

§ 681. Selling goods so received.] Every person mentioned in
sections 677 and 67!*$ who sells, hypothecates, or pledges any merchan-
dise for which any bill of lading, receipt, or voucher has been issued by
him, without the consent in writing thereto of the person holding such
bill, receipt, or voucher, is punishable by imprisonment in the terri-
torial prison not exceeding five years, or by a fine not exceeding one
thousand dollars, or both.

§ 682. Bill of lading or receipt must be canceled when.] Every
person, such as mentioned in section 678, who delivers to another any

788 Crimes Defineb. Penal Code.

merchandise for which any bill of lading, receipt^ or voucher has been
issued, unless such receipt or voucher bore upon its face the words
'' not negotiable," plainly written or stamped, or unless such receipt is
surrendered to be canceled at the time of such delivery, or unless, in
the case of a partial delivery, a memorandum thereof is endorsed upou
such receipt or voucher, is punishable by imprisonment ^in the terri-
torial prison not exceeding five years, or by a fine not exceeding one
thousand dollars, or both.

§ 683. Do NOT APPLY.] /The last two sections do not apply where
property is demanded by virtue of process of law.

CHAPTER LV.

MALICIOUS IN,nJRIES TO RAILROADS, HIGHWAYS, BRIDGES, AND TELE

GRAPHS.

t

§ 684. Injuries to railroads.] Every person who maliciously,
either:

1. Removes, displaces, injures, or destroys any part of any railroad,
whether for steam or horse cars, or any track of any railroad, or any
branch or branchway, switch, turnout, bridge, viaduct, culvert,
embankment, station house, or other structure or fixture, or any part
thereof, attached to or connected with any railroad; or,

2. Places any obstruction upon the rails or tracks of any, railroad,
or of any branch, branchway, or turnout connected with any railroad.

Is punishable by imprisonment in the territorial prison not exceed-
ing four years, or in a county jail not less than six months.

§ 685. Cases whbre death ensues.] Whenever any ofiense speci-
fied in the last section results in the death of any human being, the
offender is punishable by imprisonment in the territorial prison for
not less than four years.

§ 686. Injuries to highways, &o.] Every person who maliciously
digs up, rempves, displaces, breaks, or otherwise injures or destroys
any public highway or bridge, or any private way laid out by
authority of law, or bridge upon such way, is guilty of felony.

§ 687. Obstructing highway.] Every person who shall knowingly
and willfully obstruct, or plow up, or cause to be obstructed or plowed
up, any public highway or public street of any town, except by order
of the road supervisors for the purpose of working the same, or injure
any bridge on the public highway, shall be deemed guilty of a misde-
meanor, and upon conviction shall be punished by fine not exceeding
one hundred dollars, and shall be liable for all damages to person or
property by reason of the same.

§ 688. Toll Houses and turnpike gates.] Every person who
maliciously injures or destroys any toll house or turnpike gate, is
guilty of felony.

§ 689. Mile boards and guide posts.] Every person who removes
or injures any mile board, mile stone, or guide post, or any inscription
on such, erected upon any highway, is guilty of a misdemeanor.

§ 690. Injuring telegraph.] Every persou who maliciously takes
down, removes, injures, or obstructs any line of telegraph, or any part

Penal Code, Crimes Defined. 789

thereof, or appurtenance or aipparatus therewith connected, or severs
any wire thereof, or fraudulently intercepts any message in its pas-
sage over such wire, is guilty oi a misdemeanor.

CHAPTER LVI.

OF MALICIOUS MISCHIEF.

§ 691. Malicious mischief.] Every person who maliciously injures,
defaces, or destroys any real or personal property not his own, in
: cases other than such as are specified in the following sections, is
guilty of a misdemeanor, and in addition to the punishment prescribed
therefor, he is liable in treble damages for the injury done, to be
recovered in a civil action by the owner of such property or public
officer having charge thereof.

§ 692. Following sections not restrictive.] The specification of
the acts enumerated in the following sections of this chapter, is
not intended to restrict or qualify tne interpretation of the last
section.

§ 693. Poisoning cattle!! Every person who willfully administers
poison to any animal, the property of another, and every person who
maliciously exposes any poisonous substance, with intent that the
same shall be taken by any such aninftil, is punishable by imprison-
ment in the territorial prison not exceeding three years, or in a county
jail not exceeding one year, or by a fine not exceeding two hundred and
fifty dollars, or by both such fine and imprisonment.

§ 694. Killing, maiming, or torturing animals.] Every person
who mali>eiously kills, •maims, or wounds any animal, the property of
another, or who maliciously and cruelly' beats, tortures, or injures any
animal, whether belonging to himself or another, is guilty of ^af
misdemeanor. <JLu,t^Aoi. iT^^^y

§ 695. Abusing stock.] Every person who shall willfully or negli-
gently maltreat or abuse any domestic animal by exposure to heat or
cold, or by deprivation of food or water, or by leaving hitched in the
open air during cold weather or storm, or in. the night time, shall,*
upon conviction, be fined not exceeding twenty-five dollars. Any
officer finding an animal so maltreated or abused, shall cause the
same to be taken care of, and the charges therefor shall be a lien upon
such animal, to be collected thereon as upon a pledge.

§ 696, Fighting animals. | Every person wno maliciously, or for
any bet, stake, or reward, instigates, encourages, or promotes any fight
between animals, or instigates or encourages any animal to attack,
bite, wound, or worry another, is guilty of a misdemeanor.

§ 697. Keeping houses, pits, &c.] Every person who keeps any
house, pit, or other place, to be used in permitting any fight between
animals or in any other violation of the last section, is guilty or a
misdemeanor.

§ 698. Wounding or trapping birds in cemetery.] Every person
who, within any public cemetery or burying ground, wounds or
traps any birds, or destroys any bird's nest, or I'emoves any eggs or
young birds from any nest; and every person who buys or sells, or offers

790 Cbimbs Defined, Penal Code.

or keeps for sale, any bird which has been killed or trapped in violation
of Uiis section, is punishable by a fine of five dollars for each offense,
recoverable by a civil action in any justice's court within the county
where the offense is committed, brought in the name of any person
making a complaint. Such fine shall be applied to the support of
common schools of such county.

§ 699. Burning buildings, grain, &o.] Every person who willfully
burns any building not the subject of arson, any stack of grain of any
kind, or of any hay, any growing or standing grain, grass, trees, or
fence, not the property of such person, is punisnable by imprisonment
in the territorial prison not exceeding four years, and not less than
one year, or by imprisonment in a county jail not exceeding one year. .
§ 700. Injuring houses of worship.] Every person who willfully
breaks, defaces, or otherwise injures any house oi worship, or any part
thereof, or any appurtenance thereto, or any book, furniture, ornament,
musical instrument, article of silver or plated ware, or other chattel
kept therein for use in connection with religious worship, is guilty of
felony.

§ 701. Using gunpowder, &o.] Every person who maliciously, by
the explosion of gunpowder, or other explosive substance, destroys,
throws down, or injures the whole or any part of any building, by
means of which the life or safety of any human being is endangered,
is punishable by imprisonment in the territorial prison not exceeding
ten years, and not less than thiee.

§ 702. Endangering human life.] Every person who places in,

upon, under, against, or near to any building, any gunpowder or other

explosive substance, with intent to destroy, throw down, or injure, the

whole or any part thereof, under circumstances that, if such intent

were accomplished, human life or safety would be endangere(i thereby,

although no damage is done, is guilty of felony.

cSli '7A^^\T3 § ^^^' Malicious injuries to freeholds.] Every person who will-

! ' lully commits any trespass, by either: , .N

! 1. Cutting down or destroying any kind of wood or timber, standing

or growing upon the lands of another; or,

2. Carrying away any kind of wood or timber that has been cut
down, and is lying on s^uch lands; or,

3. Maliciously severing from the freehold any produce thereof, or
anything attached thereto; or,

4. Digging, taking, or carrying away from any lot situated within the
bounds of any incorporated city, without the license of the owner, or
legal occupant thereof, any earth, soil, or stone, being a part of the
freehold, or severed therefrom at some previous time, under such cir-
cumstances as would render the trespass a larceny, if the thing so
severed or carried away were personal property: or,

5. Digging, taking, or carrying away from any land in any incorpo-
rated city or town of this territory, laid down on the map or plan of
said city or town as a street or avenue, or otherwise established or
recognized as a street or avenue, without the license of the
mayor and common council, or other governing body of such city or
town, or owner of the fee thereof, any earth, sou, or stone, under such
circumstances as would render the trespass a larceny, if the thing so
severed or carried away were personal property,

Is guilty of a misdemeanor.

Penal Code, Cbimbs Defined. 791

§ 704. Injuring timber, fences, &o.] Every person who shall wan-
tonly or maliciously cut, dig up, or injure any timber set out, planted,
caltivated, or growing naturally, or who shall wantonly or maliciously
open, let down, throw down, or prostrate any fence, gate, or bars
belonging to any inclosure of any description of cultivated and grow-
ing timber, or tears down, or opens any such fence, gate, or bars, shall
be deemed guilty of a misdemeanor, and upon conviction thereof, shall
be punished by imprisonment in the county jail not exceeding thirty
days, or by tine not exceeding one hundred dollars, or by both such fine
and imprisonment, and shall be liable in damages to the party injured.

§ 705. Injuring standing crops, ac] Every person who maliciously
injares or destroys any standing crops, gram, cultivated fruits, or
vegetables, the property of another, in any case for which a punish-
ment is not otnerwise prescribed by this code, or by some of the
statutes which it specifies as continuing in force, is guilty of a misde-
meanor.

§ 706. Fruit and melons.] Every person who^ maliciously or mis-
chievously, entei^s in the day time, tne inclosure, or goes upon the
premises . of another, with the intent to knock off, pick, destroy, or
carry away, or having lawfully entered or gone upon, does afterward
wrongfully knock off, pick, destroy, or carry away any apples, peaches,
pears, plums, grapes, or other fruit, melons, or flowers of any tree,
shiiib, bush, or vine, shall be punished by fine not exceeding one hun-
dred dollars, and not less than five dollars, or by imprisonment in the
counfy jail not exceeding thirty days.

§ 707. Same —night time.] Every person who shall, maliciously or
naischievously, enter the inclosure, or go upon the premises of another
in the night time, and knock off, pick, destroy, or carry away, any
apples, peaches, pears, plums, grapes, or other fruit, melons, or flowers,
of any tree, shrub, bush, or vine, or having entered the inclosujre, or
gone upon the premises of another, in the night time, with the intent
to knock oft', pick, destroy, or carry away, any fruit or flowers, as afore-
said, be actually found thereon, shall, on conviction thereof, be pun-
ished by fine not exceeding one hundred and not less than ten dollars,
or by imprisonment in the county jail not exceeding thirty days.

§ 708. Injuring fruit trees, ac] Every pei-son who shall mali-
ciously or mischievously bruise, break, or pull up, cut down, carry
away, destroy, or in any wise injure any fruit or ornamental tree,
shrub, vine, or material for hedge, being, growing, or standing on the
land of another, shall be punished by fine not exceeding one hundred
and^ not less than ten dollars, or by imprisonment in tne county jail
not'exceeding thirty days.

§ 709. Removing or altering landmarks.] Every person who either:

1. Maliciously removes any monuments of stone, wood, or other
material, erected for the purpose of designating any point in the
boundary of any lot or tract of land; or,

2. Maliciously defaces or alters the marks upon any tree, post, or
other monument, made for the purpose of designating any point,
coui*se, or line in any such boundary; or,

3. Maliciously cuts down or removes any tree upon which any such
marks have been made for such purpose, with intent to destroy such
marks.

Is guilty of a misdemeanor.

792 (Jbimbs Definsd. Penal Code.

§ 710. Interfering with piers and dams.] Every person who,
without authority of law, interferes with any pier, booms, or dams,
lawfully erected or maintained upon any waters within this territory,
or hoists any gate in or about said dams, is guilty of a misdemeanor.

§ 711. Destroying dam.] Every person who maliciously destcoys
any dam or structure erected to create hydraulic power, or any embank-
ment necessary for the support thereof, or maliciously makes, or causes
to be made, any- apperture in such dam or embankment, with intent to
destroy the same, is guilty of a misdemeanor.

§ 712. Removing or injuring piles.] Every person who maliciously
draws up, or removes, or cuts or otherwise injures any piles fixed in
the ground and used for securing any bank or dam of any river, canal,
drain, aqueduct, marsh, reservoir, pool, port, dock, c[uay, jetty, or lock,
is punishable by imprisonment in the territorial prison not exceeding
five years, and not less than two, or by imprisonment in a county
jail not exceeding one year, or by a fine not exceeding five hundred
dollars, or by botn such tine and imprisonment.

§ 713. Removing buoy.] Every person who willfully removes any
buoy placed in the Missouri river by any lawful authority, is guilty of
a misdemeanor.

§ 714. Masking or removing signal light.] Every person who
unlawfully masks, alters, or removes any light or signal, or willfully
exhibits any false light or signal, with intent to bring any locomotive
or any railway car or train of cars into danger, is punishable by
imprisonment in the territorial prison not exceeding ten years, and not
less than three years.

§ 715. Injuring written instruments.] Every person who
maliciously mutilates, tears, defaces, obliterates, or destroys any writ-
ten instrument being the property of another, the false making of
which would be forgery, is punishable in the same manner as the for-
gery of such instrument is made punishable.

§ 716. Same of election returns.] Every messenger appointed by
authority of law to receive and carry any report, certificate, or certified
copy of any statement relating to the result of any election, who will-
fully mutilates, tears, defaces, obliterates, or destroys the same, or
does any other act which prevents the delivery of it as required by law,
and every person who takes away from such messenger any such
report, certificate, or certified copy, with intent to prevent its delivery,
or who willfully does any injury or other act such as is above specified,
is punishable by imprisonment in the territorial prison not exceeding
five years, and not less than two years.

§ 717. Sealed letters.] Every person who willfully opens or reads,
or causes to be read, any sealed letter not addressed to himself, with-
out being authorized so to do, either by the writer of such letter, or by the
person to whom it is addressed, and every person who without like
authority publishes any letter, knowing it to have been opened in
violation of this section, or any part thereof, is guilty of a misde-
meanor.

§ 718. Disclosing telegraph dispatches.] Every person who
discloses the contents of any telegraphic dispatch, or any part
thereof, addressed to another person, without the permission of
such person, to his loi^s, injury, or disgrace, is guilty of a misdemeanor,

F

Penal Code. Crimbs Dbwnbd. 793

§ 719. Sbcrbting SAME.] Every person having in his possession any
telegraphic dispatch addressed to another, maliciously secretes, con-
ceals or suppresses the same, is guilty of a misdemeanor.

§ 720. Injuring works of art or improvement.] Every person who
willfully injures, disfigures or destroys, not being the owner thereof,
any monument, work of art, or useful or ornamental improvement,
within the limits of any village, town, or city, or any shade tree or
ornamental plant growing therein, whether situated upon private
ground or on any street, sidewalk, or public park or place, is guilty
of a misdemeanor.

§ 721. Destroying works of literature or art.] Every person
who maliciously cuts, tears, disfigures, soils, obliterates, breaks, or
destroys any book, map, chart, picture, engraving, statute, coin, model,
apparatus, specimen, or Other work of literature or art, or object of
curiosity, deposited in any public library, gallery, museum, collection,
fair, or exhibition, is punishable by imprisonment in the territorial prison
for not exceeding three years, or in a county jail not exceeding one year.

§ 722. Breaking gas or water pipes.] Every person who willfully
breaks, digs up or obstructs, any pipe or main for conducting gas or
water, any works erected for supplying buildings with gas or water, or
any appurtenances or appendages therewith connected, is punishable by
imprisonment in the territorial prison not exceeding three years, or in
a county jail not exceeding one year.

CHAPTER LVII.

OF MISCELLANEOUS CRIMES.

§ 723. Illegally granting license.] Every officer or other
person whose duty it is made by law, to grant license to sell intoxi-
cating liquors, or any one who ^rn^nts any such license contrary to the
provisions of the political code, s^iall be deemed guilty of a misdemeanor.

§ 724. Liquor to Indian.] Every person who shall give, barter,
sell, or in any manner dispose of any intoxicating liquor to any Indian,
shall be guilty of a misdemeanor.

§ 725. Public intoxication.] Every person being found intoxicated
in any public place, is punishable, upon conviction before a justice of
the peace, by a fine of ten dollars.

§ 726. Seli^ing liquors to minors, &c.] Every person found guilty of
selling any intoxicating liquors, by agent or otherwise, to minors,
unless upon the written order of their parents, guardians, or family
physicians, or to persons intoxicated, or who are inthehabit ofgettinjj
mtoxicated, is punishable by a fine not exceeding one hundred an^
fifty dollars, and not less than twenty dollars for each offense.

§ 727. Selling liquor to paupers.] Every person who sells or gives
to any person, knowing him to be a pauper, or inmate of any poor
house, or alms house, any strong or spirituous liquor or wine, without
authority from the superintendent or physician of such poor house or
alms house, is punishable by a fine of twenty-five dollars.
, § 728. Selling liquor upon Sunday.] Every innkeeper, or person
licensed to sell liquors, who sells or gives away any strong or spirit-
uous liquor or wine upon Sunday, is guilty of a misdemeanor.

794 Cbimes Dbfined. Penal Code.

§ 729. Same on boat.] Every master or other person engaged in
navigating any steamboat, who* allows any liquors mentioned m the
last section, to be sold on his boat, on Sunday, while stopping at any
wharf, landing, city, or town in this territory, is guilty of a misde-
meanor.

§ 730. District attorneys and their partners.] Every attorney
who directly or indirectly advises in relation to, or aids, or promote
the defense of any action or proceeding in any court, the prosecution
of which is carried on, aided, or promoted by any person as district
attorney or other public prosecutor, with whom such person is directly
or indirectly connected as a partner, or who takes or receives, directly
or indirectly, from or on behalf of any defendant therein, any valu-
able consideration, upon any understanding or agreement whatever,
express or implied, having relation to the defense thereof, is guilty of
a misdemeanor, and in addition to the punishment prescribed therefor,
he forfeits his licence to practice.

§ 731. Prosecutors advising defense.] Every attorney who, having
prosecuted, or in any manner aided or promoted any action or pro-
ceeding in any courts as district attorney or other public prosecutor,
afterwards directly or indirectly advises in relation to, or takes any
part in, the defense thereof, as attorney or otherwise, or takes or
receives any valuable consideration from or on behalf of any defend-
ant therein, upon any undei^standing or agreement whatever, express
or implied, having relation to the defense thereof, is guilty of a mis-
demeanor, and in addition to the punishment prescribed .therefor, he
forfeits his license to practice.

§ 732. Attorneys may defend themselves.] The two la.st sections
do not prohibit an attorney from defending himself in person, a^
attorney or as counsel, when prosecuted either civilly or criminally.

§ 733. Intimidating laborers.] Every person who, by any use of
force, threats, or intimidation, prevents, or endeavors to prevent, any
hired foreman, journeyman, apprentice, workman, laborer, servant, or
other person employed by anotlier, from continuing or performing his
work, or from accepting any new work or employment, or to induce
such hired person to relinquish his work or employment, or to return
any work he has in hand, before it is finished, is guilty of a misde-
meanor.

§ 734. Intimidating employers.] Every person who, by any use of
force, threats, or intimidation, prevents or endeavors to prevent
another from employing any person, or to compel another to employ
any person, or to force or induce another to alter his mode of carry-
ing on business, or to limit or increase the number of his hired fore-
men, journeymen, apprentices, workmen, laborers, servants, or other
persons employed by hini, or their rate of wages, or time of service, is
guilty of a misdemeanor.

J^ 735. Conspiracy and mobs against mines.) In all cases where
t>vo or more persons shall associate themselves together for the nur-
pose of obtaining possession of any lode, gulch, or placer claim, then
in the actual possession of another, by force and violence, or by threats
of violence, or by stealth, and shall proceed to carry out such purpose
by making threats against the party or parties in possession, or who
shall enter ui3on such lode or mining claim for the purpose aforesaid,

Penal Code. Cbiicbs Dsfinbd. 795

or who shall enter upon or into any lode, gulch, placer . claim, or
quartz mill, or other mining property, or not being upon such property
but within hearing of the same, shall make any threats, or make use
of any language, sign, or gesture, calculated to intimidate any person,
or persons at work on said property, from continuing to work thereon
or therein, or to intimidate others from engaging to work thereon or
therein, every such person so offending, shall, upon conviction, be pun-
ished by imprisonment in the county jail not exceeding six months
and not less than thirty days, and by fine not exceeding two hundred
and fifty dollars, such fine to be discharged either by payment or by
confinement in such jail until such fine is discharged at the rate of two
dollars and fifty cents per day. On trials under this section, proof of
a common purpose of two or more persons to obtain possession of
property, as aforesaid, or to intimidate laborers, as above set forth,
accompanied or followed bjr any of the acts above specified, by any of
them, shall be sufficient evidence to convict any one committing such
acts, although the parties may not be associated together at the time
of committing the same.

§ 736. Taking saw logs.J Any person who shall willfully and
without authority, take any saw logs that may be on any river, or on
the land adjoining or near a river, which may have floated down said
river, or on to said land, and shall remove or attempt to remove the
same, or who shall cut or split said logs, or otherwise destroy or injure
them, shall be deemed guilty of a misdemeanor, and upon conviction,
where the value of the logs exceed one hundred dollars, be punished
by imprisonment in the county jail not more than one year, nor less
than three months, and by fine not to exceed one hundred and not less
than ten dollars, and where the value of the logs is one hundred dol-
lars or less, the punishment shall be by fine not exceeding eighty, and
not less than twenty dollars.

§ 737. Receiving same.] Any person who shall purchase, receive,
or secrete saw logs, so taken or removed, or who shall cut or other-
wise injure logs so taken or removed, knowing them to have been so
taken or removed, shall be punished as prescribed in the preceding
section,

§ 738. Concealing bstray— lost goods.] Any person who shall
attempt to conceal any estray, or any lost goods, found or taken up by
him, or shall efface any marks or brands tnereon, or carry the same
beyond the limits of the territory, or knowingly permits the same to
be done, or shall willfully fail to cause the same to be advertised, sold,
or otherwise dealt with as provided by the statute on estray and lost
goods, shall be deemed guilty of a misdemeanor, and, upon conviction
thereof, shall be punished by fine not exceeding one hundred dollars,
nor less than ten dollars, one-half to be paid to the informer, and the
other half into the county treasury.

§ 739. Woman or child— hours of labor.] Every owner, stock-
holder, overseer, employer, clerk, or foreman, of any manufactory,
workshop, or other place used for mechanical or manufacturing pur-
poses, who, having control, shall compel any woman or any child under
eighteen years of age, or permit any child under foui1>een years of age,
to labor in any day exceeding ten hours, shall be deemed guilty of a

I

796 Crimes Defined. Penal Code.

misdemeanor, and upon conviction, shall be punished by fine not
exceeding one hundred, and not less than ten dollars.

§ 740. Harboring Indians.] Every person who shall harbor or keep
on or about his premises or place of abode, within any organized
county in this territory, any Indian or Indians, who have not adopted
the manners and habits of civilized life, or who induces or encourages
any such Indian or Indians, to camp, remain, or hunt for any time or
for any purpose within any village or settlement of white people, or
in the vicinity of such village or settlement, within any organized
county in this territory, shall be deemed guilty of a misdemeanor, and
upon conviction, shall be punished by fine not less than twenty-five
dollars for each Indian, so kept, harbored, or induced to remain, and
shall stand committed until such fine and costs are paid; Provided,
The aggregate of such fine, upon each conviction, shall not exceed one
hundred dollars.

• §741. Voting UNLAWFULLY AT TOWN meeting.] Every person who
votes at any annual township meeting, in a township ii;i which he does
not reside, or who ofters to vote at any annual township meeting, after
having voted at an annual township meeting held in another township
within the same year, is guilty of a misdemeanor.

§ 742. Injurious acts not /expressly forbidden.] Every person w^ho
willfully and wrongfully commits any act which grossly injures
the per-son or property of another, or which grossly disturbs the public
peace or health, or which openly outrages public decency, and is
injurious to public morals, although no punishment is expressly pre-
scribed therefor by this code, is guilty of a misdemeanor.

CHAPTER LVIII.

GENERAL PROVISIONS.

{^ 743. AcTvS punishable in different ways.] An act or omission
which is made punishable in different ways by different provisions
of this code or other penal statute, may be punished under either of
such provisions, exc^ept that in the cases specified in sections 754 to 757,
inclusive, the punishments therein prescribed are substituted
for those prescribed for a fii-st offense, but in no wise can it be punished
under more than one; and an acquittal or conviction and sentence
under either one, bars a prosecution for the same act or omission
under any other.

S 744. Acts punishable under foreign law.] An act or omission
declared punishable by this code, is not less so because it is also pun-
ishable under the laws of another state, government, or country,
unles.s the contrary is expressly declared in this code.

§ 745. Foreign conviction or acquittal.] But whenever it appears
ii[)on the trial of an indictment that the accused has already been
accjuitted or convicted upon any criminal prosecution under the laws
of another state, government, or countrjr, founded upon the act or
omission in respect to which he is upon trial, this is a sufficient
defense.

Penal Code. Cbimbs Definbp. 797

* § 746. CoNTSMPTS PUNISHABLE AS GRIMES.] A Criminal act is not
the less punishable as a crime, because it is also declared to be punish-
able as a contempt.

§ 747. Mitigation of punishment.] But where it is made to appear
at the time of passing sentence upon a person- convicted upon indict-
ment, that such person has alreauy paid a fine, or suffered an imprison-
ment for the act which he stands convicted, under an order adjudging
it a contempt, the court authorized to pass sentence may mitigate the
punishment to be imposed, in its discretion.

§ 748. Aiding in misdemeanor.] AVhenever an act is declared a
misdemeanor, and no punishment for counseling or aiding in the com-
mission of such act is expressly prescribed by law, every person who
counsels or aids another in the commission of such act, is guilty of a
misdemeanor.

§ 749. Sending letter, when complete.] In the various cases in
which the sending of a letter is made criminal by this code, the offense
is deemed complete from the time when such letter is deposited in any
post office, or any other place, or delivered to any person with intent
that it shall be forwarded. And the party may be indicted, and tried
in any county wherein such letter is so deposited or delivered, or in
which it shall be received by the person to whom it is addressed.

§ 750. Omission to perform duty.] No person is punishable for
an omission to i)erform an act, where such act has been performed by
another person acting in his behalf, and competent by law to per-
form it.

§ 751. Attempts to commit crimes.] No person can be convicted of
an attempt to commit a crime when it appears that the crime intended
or attempted was perpeti^ted by such person in pursuance of such
attempt.

§ 75a. Failures punishable.] Every person who attempts to com-
mit any crime, and in such attempt does any act towards the commis-
sion of such crime, but fails, or is prevented, or intercepted in the
perpetration thereof, is punishable, w^here no provision ls made by
law for the punishment of such at£empt, as follows:

1. If the offense so attempted be punishable by imprisonment in
the tei'ritorial prison for four years or more, or by imprisonment in a
county jail, the person guilty of such attempt Ls punishable by
imprisonment in the territorial prison, or in a county jail, as the case
may be, for a term not exceeding one-half the longest teion of imprison-
ment prescribed upon a conviction for the offense so attempted.

2. Ii the offense so attempted be punishable by imprisonment in the
territorial prison for any time less than four j ears, the pei'son guilty
of such attempt is punishable by imprisonment in a county jail for
not more than one year.

3. If the offense so attempted be punishable by a fine, the offender
convicted of such attempt is punishable by a tine not exceeding one-
half the largest fine which may be imposed upon a conviction of the
offense so attempted.

4. If the offense so attempted be punishable by imprisonment and
by a fine, the offender convicted oi such attempt may be punished
by both imprisonment and fine, not exceeding one-half the longest

y

798 Crimes Defined. Fmal Code,

term of imprisonment, and one-half the largest fine which may be
imposed upon a conviction for the offense so attempted.

§ 753. Kestriction.]- The last two sections do not protect a person
who in attempting unsuccessfully to commit a crime, accomplishes the
commission of another and different crime, whether greater or less in
guilt, from suffering the punishment prescribed by law for the crime
committed.

§ 754. Second offenses.] Every person, who having been convicted
of any offense punishable by imprisonment in the territorial prison,
commits any crime after such conviction, is punishable therefor as
follows:

1. If the offense of which such person is subsequently convicted is
such that, upon a first conviction an offender would be punishable by
imprisonment in the territorial prison for any term exceeding five
years, such person is punishable by imprisonment in the territorial
prison for a term not less than ten years.

2. If such subsequent offense is such that, upon a first conviction, the
offender would be punishable by imprisonment in the territorial prison
for five years, or any less term, then the person convicted of such sub-
sequent offense is punishable by imprisonment in the territorial
prison for a term not exceeding ten years.

3; If such subsequent conviction is for petit larceny, or for any
attempt to commit an offense which, if committed, would be punish-
able by imprisonment in the territorial prison, then the person con-
victed of such subsequent offense is punishable by imprisonment in
the territorial prison for term not exceeding five years.

§ 755. Attempts to conceal death op child.] Every woman who,
having been convicted of endeavoring to conceal the birth of any issue
of her body which, if born alive, would be a bastard, or the death of
any such issue under the age of two years, subsequently to such con-
viction endeavors to conceal any such birth or death of issue of her
body, is punishable by imprisonment in the territorial prison not
exceeding five years, and not less than two.

§ 756. Second offenses — how punished.] Every person who,
having been convicted of petit larceny, or of any attempt to commit
an offense which, if perpetrated, would be punishable by imprisonment
in the territorial prison, commits any crime after such conviction, is
punishable as follows:

1. If such subsequent offense is such that upon a first conviction,
the offender would be punishable by imprisonment in the territorial
prison for life, at the discretion of the court, such person is punishable
by imprisonment in such prison during life.

2. If such subsequent offense is such that upon a first conviction,
the offender would be punishable by imprisonment in the territorial
prison for any term less than for life, such person is punishable by
imprisonment in such prison for the longest time prescribed upon a
conviction for such first offense.

3. If such subsequent conviction is for petit larceny, or for any
attempt to commit an offense which, if perpetrated, would be punish-
able by imprisonment in the territorial prison, then such person is

Sunishable by imprisonment in such prison for a term not exceeding
ve years.

r —

Penal Code. Crimes Defined. 799

§ 757. Foreign conviction.] Every person who has been con-
victed in any other state, government, or country of an offense which,
if committed within this territory, would be punishable by the laws
of this territory by imprisonment in the territorial prison, is punish-
able for any subsequent crime committed within this territory, in the
manner prescribed in the last three sections, and to the same extent as
if such conviction had taken place in any court of this territory.

§ 758. Two OR MORE TERMS OF IMPRISONMENT.] Whou any person is
convicted of two or more crimes before sentence has been pronounced
upon him for either, the imprisonment to which he is sentenced upon
the second or other subsequent conviction, must commence at the
termination of the first term of imprisonment to which he shall be
adjudged, or at the termination of the second or other subsequent
term of imprisonment, as the case may be.

§ 759. Imprisonment for life.] Whenever any person is declared
punishable for a crime by imprisonment in the territorial prison for
a term not less than any specified number of years, and no limit to the
duration of such imprisonment is declared, the court authorized
to pronounce judgment upon such convictioi), may, in its discretion,
sentence such offender to imprisonment during his natural life
or for any number of years, not less than such as are prescribed.
But no person can in any case be sentenced to imprisonment in the
territorial prison for any term less than one year.

§ 760. Sentence — how to be limited.] In cases where convicts
sentenced to be imprisoned in the territorial prison for a longer period
than' one year, it is the duty of the court before which the conviction
is had, to limit.the time of the sentence so that it will expire between
the month of March and the month of November, unless the exact
period of the sentence is fixed by law.

§ 76!. Jdvbnile offenders.] 'Whenever any person under the age
of sixteen years is convicted of an offense punishable by imprison-
ment in the territorial prison, the court before whom such conviction
was held, may, in its discretion, sentence the person so convicted to
imprisonment in the county jail of the county in which such convic-
tion was had.

§ 762. Fine may be added to imprisonment.] Upon a conviction
for any crime punishable by imprisonirient in any jail or prison, in
relation to which no fine is herein prescribed, the court may impose a *
fine on the offender not exceeding two hundred dollars in addition to
the imprisonment prescribed.

§ 763. CiyiL RIGHTS SUSPENDED.] A scnteuce of imprisonment in
the territorial prison for any term less than for life, suspends all the
civil rights of the person so sentenced, and forfeits all public offices,
and all private trusts, authority, or power, during the term of such
imprisonment. . •'

§ 764. Civil death.] A person sentenced to imprisonment in the
territorial prison for life, is thereafter deemed civilly dead.

§ 765. Person op convict protected.] The person of a convict
sentenced to imprisonment in the territorial prison is under the pro-
tection of the law, and any injury to his person, not authorized by
law, is punishable in the same manner as if he was not convicted or
sentenced.

/

800 Crimbs Defined. Penal Code.

§ 766. FoBFEiTUBEs.] No conviction of any person for crime works
any forfeiture of any property, except in the cases of any outlawry
for treason, and other cases in which a forfeiture is expressly imposed
by law.

^ 767. Witness' testimony — perjury.] The various sections of
this code which declare that evidence obtained upon the examination
of a person as a witness shall not be received against him in any
criminal proceeding, do not forbid such evidence, being proved against
such person upon any proceedings founded upon a charge of perjury
committed in such examination.

§ 768. Certain terms defined.] Wherever the terms mentioned in
the following sections are employed in this code, they are deemed to
be employed in the senses hereafter affixed to them, except where a
different sense plainly appears.

§ 769. Willfully defined.] The term " willfully," when applied
to the intent which an act is done or omitted, implies simply a pur-
pose or willingness to commit the act or the omission referred to. It
does not require any intent to violate law, or to injure another, or to
acquire any advantage.

§ 770. Neglect, negligence, &o.] The term "neglect," "negligence,"
"negligent," and "negligently," when so employea, import a want of
such attention to the nature or probable consequenses of the act or
omission as a prudent man ordinarily bestows m acting in his own
concerns.

§ 771. Corruptly defined.] The term "corruptly," when so em-
ployed, imports a wrongful design to acquire some pecuniary or other
advantage to the person guilty of the act or omission referred to.

§ 772. Malice and maliciously defined.] The terms "malice" and
"maliciously," when so employed, import a wish to vex, annoy, or
injure another person, established either by proof or presumption of
law.

§ 773. Knowingly defined.] The term "knowingly," when so
applied, imports only a knowledge that the facts exist which bring the
act or omission within the provisions of this code. It does not require
any knowledge of the unlawfulness of such act or omission.

§ 774. Bribe defined.] The term " bribe" signifies any money,
goods, right in action, property, thing of value, or advantage, present
• or prospective, or any promise or undertaking to give any, asked, given,
or accepted, with a corrupt intent to influence unlawfully the person
to whom it is given, in his action, vote, or opinion, in any public or
official capacity.'

§775. VESSEL DEFINED.] The word " vessel," when used with ref-
erence to shipping, includes ships of all kinds, steamboats, and steam-
ships, canal boats, and every structure adapted to be navigated from
place to place.

§ 776. Peace officer defined.] The term " peace officer" signifies
any sheriff, coroner, constable, policeman, watchman of any incorpora-
tion, city, or town, and such other officer or officers whose duty it is
made to enforce and preserve the public peace.

§ 777. Magistrate defined.] The term " magistrate" signifies any
justice of the peace, judge of probate court, mayor of any incorporated

Penal Code. Crimes Dsfinbd. 801

city or town, and such other officer or officers, whose duty it is made
by law to examine and punish violations of the public peace.

§ 778. Signature defined.] The term " signature includes any
name, mark, or sign, written with intent to authenticate any instru-
ment or writing.

§ 779. Writing.] The term " writing" includes printing.

§ 780. Real property defined.] The term " real property" includes
every estate, interest, and right in lands, tenements, and heredita-
ments. \

§ 781. Personal property.] The term "personal property" includes
every description of money, goods, chattels, effects, evidences of right
in action, and written instruments, by which any pecuniary obligation,
right or title to property, real or personal, is created or acknowledged,
transferred, increased, defeated, discharged, or diminished.

§ 782. Property defined.] The term " property" includes both
real and personal property.

§ 783. Person defined.] The word " person" includes corporations,
as well as natural persons.

§ 784. Same.] W here the term '^person" is used in this code to des-
ignate the party whose property may be the subject of any offense, it
includes this territory, any other state, government, or countrv, which
may lawfully own any property within this territorv, ajid all public
and private corporations, or joint associations, as well as indi via uals.

§ 785. Singular includes plural.] The singular number includes
the plural, and the plural the singular.

§ 786. Gender.] Words used in the masculine gender, comprehend
as well the feminine and nenter.

§ 787. Present tsnbb.] Words used in the present tense include
the future, but exclude the past.

% 788. Intent to defraud.] Whenever, by any of the provisions
of this code an intent to defraud is required in order to constitute any
offense, it is sufficient if an intent appears to defraud any person,
association, or body politic or corporate, whatever.

§ 789. Civil remedies.] The omission to specify or affirm in this
code, any liability to any damages, penalty, forfeiture, or other
remedy, imposed by law, and allowed to be recovered or enforced in
any civil action or proceeding, for any act or omission declared pun-
islmble herein, does not affect any right to recover or enforce the
same.

§^790. Prooebdino to impeach or remove.] The omission to
specify or affirm in this code any ground of forfeiture of a public
office or other trust or special authority conferred by law, to impeach,
remove, depose, or suspend any public officer or other person holding
any trust, appointment or other special authority conferred by law,
does not affect such forfeiture or power, or any proceeding authorized
by law to carry into effect such impeachment, removal, deposition, or
suspension.

§ 791. Military punishments.] This code does not affect any power
conferred by law upon any court martial or other military authority
or officer to impose or inflict punishment upon offenders; nor any
power conferred by law upon any public body, tribunal, or officer, to

51

802 Ceimes Defined. Penal Code.

impose or inflict punishment for a contempt; nor any provisions of
the laws relating to apprentices, bastards, disorderly persons, Indians,
and vagrants.

§ 792! Pines, ac, to county general fund.] All fines, forfeitures,
and pecuniary penalties, prescribed as a punishment, by any of the
provisions of this code^ when collected, shall, when not otherwise
specially provided, be paid into the treasury of the proper county, to
be added to the county general fund.

§ 793. Costs to be taxed.] In all cases of conviction, the costs of
the prosecution shall be taxed against the defendant, and enforced as
other judgments in criminal causes.

Approved, Pisbruary 7, 1877.

CHAPTER LIX.

AN ACT to Protect the Citizens of Dakota Territory, and Elevate the Standing of the Medical

Profession. [Chapter 14, Laws of 1868-9.]

§ 1. Who mat practice mbdicikb.] Be it enacted by the Legislative
Assembly of the Territory of Dakota: It shall be unlawful for any per-
son within the limits of said territory, who has not attended two fall
courses of instruction, and grad^uated at some school of medicine,
either of the United States, or some fore^n country, or who cannot
produce a certificate of qualification, from some state or county
medical society, and is not a person of good moral character, to prac-
tice medicine in any of its departments, for reward or compensation,
or attempt to practice medicine, or prescribe medicine or medicines,
for reward or compensation, for any sick person within the said Terri-
tory of Dakota; Provided, That in all cases when any person has been
continuously engaged in the practice of medicine for a period of ten
years or more, lie shall be considered to have complied with the
provisions of this act. .

§2. Punishment prbscmbbd.] Any person living in the Territory
of Dakota, or any person coming into said territory, who shall practice
medicine, or attempt to practice medicine, in any of its departments,
or perform, or attempt to perform, any surgical operation upon any
person within the limits of said territory,* in violation of section one of
this act, shall, upon conviction thereof, be fined not less than fifty nor
more than one hundred dollars for such offense ; and upon conviction
for a second violation of this act, shall, in addition to the above fine
be imprisoned in a jail within said territory for a term not less than
thirty days; and in no case wherein this act shall have been violated,
shall any person so violating receive a compensation for services ren-
dered ; Provided, That nothing herein contained shall in any way be
construed to apply to any person practicing dentistry.

§ 3. Effect.] This act shall take effect and be in force from and
after its passage and approval.

Approved, January 15, 1869.

Penal Code. Crimbs Dbtinkd. SOS

CHAPTER LX.

AN ACT to Regulate the time for Burning Prairies.

§ 1. Pbairie fires forbidden.] Be it enacted by the Legislative
Assembly of the Territory of Dakota^ That if any person or persons shall
set or cause to be set on fire any woods, marsh, or prairie, or any grass
or stubble lands in the months of September, October, November,
December, January, February, March, April, May^ or June, except as
hereinafter provided, such person or persons shall be deemed guilty of
a naisdemeanor, and upon conviction thereof be fined a sum not more
than one thousand dollars nor less than ten dollars, and imprisonment
in the county jail a period not longer than six months, one or both, at
the discretion of the court, and shall also be liable in a civil action to
any person or persons damaged by such fire to the amount of such
damages.

§ 2. Fires permitted — when.] That for the purposes of destroy-
ing any grass or stubble that may be on any piece of land at the time
any person or persons commence to break or plow the same, it shall
be lawful for such person or persons to set the same on fire at any
time in the year; Provided^ That at the time of setting such grass or
stubble on fire there shall be a strip of land well plowed or burned
over at least fifty feet in width, completely encompassing the place
where such fire is set. •

§ 3. Accidental damages.] That if any fire set as provided in sec-
tion two of this act should by accident and without any fault or neglect
of the person or persons setting the same, get beyond his or their con-
trol, such person or persons shall be liable, as provided in section one of
this act, for all damages done by said fire, but not otherwise. But if
such fire should by nefflieence, carelessness, or be intentionally per-
mitted to spread beyond the bounds of such strip of land mentioned
in section two, then the person or persons setting such fire shall be
liable both civilly and criminally, as provided in section one of this
act.

§ 4. Grasshopper destruction.] That it shall be lawful for any
person or persons at any time between the 20th day April and the 20th
day of June, to set on fire, for the destruction of grasshoppers, any
marshes, prairies, grass, or stubble lands owned or occupied by him, her,
or themselves, or any marshes, prairies, grass, or stubble lands adjacent
thereto; ProvVrf^rf, That the person or persons desiring to set such fire
shall give at least twenty four hours notice to all persons residing within
one and a half miles of the place where the fire is to be sei^ and shall state,
at the time of giving said notice, the time when and the place where
such fire will be set. Such person or persons shall take all necessary
precaution before the setting of such nre, to prevent damage by the
same.

§ 5. Fire limited.] That fire set under the provisions of section four
of this act, shall not be allowed to spread beyond the control of the

804 CRimss Depittbd. Penal Code.

person or persons setting the same, and shall be subdued and extin-
guished the same day on which it is set.

§ 6. Penalty.] Any person or persons violating the provisions of
section live, shall be liable in a civil action, to any person or persons
damaged by^uch fire, to the amount of such damage, and in case any
person or persons shall negligently, carelessly, willfully, maliciously,
or intentionally violate any of the provisions of section nve, such per-
son or persons shall be liable, both civilly and criminally, the same as
though they had violated the provisions of section one of this act.

§ 7. Effeot.j This act shall take effect and be in force from and
after its passage and approval.

Approved, February 17, 1877.

CODE OF CRIMINAL PROCEDDRE.

• \ . ^ 'i

AN ACT to EstabliKh a Code of Criminal Procedure for DakoU Territory.

PRELIMINARY PROVISIONS.

§ 1. Title of code.] Be it enacted by the Legislative Assembly of the
Territory of Dakota: This act shall be known as the Code of Criminal
Procedure of the Territory of Dakota.

§ 2. Crime defined — punishments.] A crime or public offense is an
act or omission forbidden by law, and to which is annexed, upon con-
viction, either ^of the following punishments:

1. Death.

2. Imprisonment.

3. Fine.

4. Removal from office.

5. Disqualification to hold and enjoy any office of honor, trust, or
profit under this territory.

§ 3. Division of crimes.] Crimes or public offenses are divided
into:

1. Felonies.

2. Misdemeanors.

§ 4. Felony defined.] A felony is a crime which is, or may be,
punishable with death, or by imprisonment in the territorial prison.

§ 5. Misdemeanor.] Every other crime is a misdemeanor.

I 6. Punishment only on conviction.] No person can be punished
for a public offense except upon legal conviction in a court having
jurisdiction thereof.

§^ 7. Indictment necessary, except.] Every public offense must be
prosecuted by indictment, except:

1. Where proceedings are had for the removal of civil officers of the
territoiy.

2. Offenses arising in the militia, when in actual service, and in
the land and naval forces in time of war, or which this territory may
keep, with the consent of congress, in time of peace.

3. Offenses tried in justice's and police courts, in cases concerning
which, lawful jurisdiction, without the intervention of a grand jury is,
or may be, conferred upon said courts.

§ 8. Criminal action defined.] The proceedina; by which a party
charged with a public offense is accused and brought to trial and pun-
ishment^ is known as a criminal action.

806 Jurisdiction. Criminal Procedure.

§ 9. How PROSECUTED.] A Criminal action is prosecuted in the name
of the Territory of Dakota as a party, against the person charged with
the offense.

§ 10. Party defendant.] The party prosecuted in a criminal
action is c*esignated in this code as the defendant.

§ 11. RianTfi OF defendant.] In a criminal action the defendant is
entitled:

1. To a speedy and public trial;

2. To be allowed counsel, as in civil actions, or to appear and defend
in person and with counsel; and, &•%>% cV. 7 ^A. . ^ 9

3. To produce witnesses on his behalf, and to be confronted with
the witnesses against him in the presence of the court.

§ 12. But onjb prosecution, except.] No person can be subjected
to a second prosecution for a public offense, for which he has once
been prosecuted and dulv convicted or acquitted, except as herein-
after provided for new trial s.

§ 13. Witness against self — restraint.] No person can be com-
pelled in a criminal action, to be witness against himself; nor can a
person charged with a public offense be subjected before conviction to
any more restraint than is necessary for his detention to answer the
charge.

§ 14. How CONVICTION CAN BE HAD.] No pcrsou cau be convicted of
a public offense, unless by the verdict of a jury accepted and recorded
by the court, or upon a plea of guilty, or upon judgment against him
upon £L demurrer to the indictment, in the case mentioned in section
269 [272], or upon a judgment of a police or justice's court, in cases in
which such judgment may be lawfully given without the intervention
of a jury and grand jury.

TITLE L

of THE COURTS HAVIKG aiTRISDICTION IN CRIBilNAL ACTIONS.

§ 15. Jurisdiction of district court.] There is in each of the three
districts of this territory a court denominated the district court, with
jurisdiction conferred bj'^ the organic act of this territory and other
laws of coiigress, and having, among other things, common law juris-
diction, and authority for the redress of all wrongs committed against
the laws of this territory, affecting persons or property.

§ 16. District court, where held.] Each of the said district
courts inay be held, for the trial of criminal actions, in any county or
subdivision in the same district as is, or may be, provided by law.

§ 17. Jurisdiction of district court.] The district court has juris-
diction:

1. To inquire by the intervention of a grand jury of all public
offenses committed or triable in the county or subdivision for which
the court may be held,

2. To inquire into the cause of the detention of all persons im-
prisoned \jx the jail of the county or subdivision, or otherwise detained,

Criminal Procedure. Public Offenses. 807

and to make an order for their recommitment or discharge, or other-
wise according to law.

3. To hear, try, and determine all criminal actions according to law,
and to exercise all powers, whether original or appellate, conferred
upon it by this code, or by the other laws of this territory.

§ 18. Final DB0I8I0NS — how rbyibwabls.] The flnal decisions of
the district courts are reviewable and determinable . by the supreme
court according to law, on writs of error allowable by the supreme
court and bringing up for review the record and bills of exceptions.

§ 19. Jurisdiction of justices of the peace.] Justices of the
peace shall have power and jurisdiction throughout their respective
counties, as follows:

1. As committing magistrates, under the pro(visions of this code,
and sections three and one hundred and four of the justice's code; and,

2- To exercise such lawful jurisdiction, to try and determine petit
misdemeanors, not indictable, as by the organic law and said justices'
code, or other laws, is now, or may hereafter be conferred upon them.

TITLE 11.

OF THE PREVENTION OF PUBLIC OFFENSES.

Chapter I. Of lawful resistance.

II. Of the intervention of officers of justice.

III. Security to keep the peace.

IV. Police in cities and villages, and their attendance at

exposed places.

V. Suppression of riots.

CHAPTER 1.

OF LAWFUL RESISTANCE.

§ 20. To COMMISSION OF OFFENSE — BY WHOM.I Lawful rcsistauce to
the commission of a public offense may be maae:

1. By the party about to be injured,

2. By other parties.

§ 21. By party to be injured.] Resistance sufficient to prevent the
offense may be made by the party about to be injured:

1. To prevent an offense againt his person or his family, or some
member thereof

2. To prevent an illegal attempt, by force, to take or injure property
in his lawful possession.

§ 22. By others.] Any other person, in aid or defense of the per-
son about to be injured, may make resistance sufficient to prevent the
offense.

S08 Public Offenses. Criminal Procedure.

CHAPTER II.

OF THE INTERVENTION OF THE OFFICERS OF JUSTICE.

§ 23. Public offenses prev^ented.] Public offenses may be pre-
vented by the intervention of the officers of justice:

1. By requiring security to keep the peace.

2. By forming a police in cities and villages, and by requiring their
attendance in exposed places.

3. By suppressing riots.

§ 24. Persons assisting officers justified.] When the oftcers of
justice are authorized to act in the prevention of public offenses, other

Sersons who by their command, act in their aid, are justified in so
oing.

• CHAPTER III.

security to keep the peace.

§ 25. Informations before whom.] An information verified by the
oath of the complainant, may be laid before any of the ma^sti*ates
mentioned in section ninety-four, that a person has threatened to com-
mit an offense against the person or property of another.

§ 26. Magistrate must issue warrant.] If it appear 'from the
information that there is just reason to fear the commission of the
offense threatened, by the person complained of, the magistrate must
issue a warrant, directed generally to the sheriff of the county, or any
constable, or marshal, or policeman of the city or town, reciting the
substance of the information, and commanding the officer forthwith to
arrest the person complained of, and bring him before the magistrate
of the county.

§ 27. Proceedings if charge controverted.] When the person
complained of is brought before the magistrate, if the charge be con-
troverted, the magistrate must take testimony in relation thereto.
The evidence must, on demand of the defendant, be reduced to writ-
ing, and subscribed by the witnesses.

§ 28. Person to be discharged.] If it appear that there is no just
reason to fear the commission of the offense alleged to have oeen
threatened, the person complained of must be discharged.

§ 29. When person must give bond.] If, however, there be just
reason to fear the commission of the offense, the person complainea of
may be required to enter into an undertaking, in such sum, not
exceeding one thousand dollars, as the magistrate may direct, with
one or more sufficient sureties, to abide the order of the next district
court of the county, and in the meantime to keep the peace toward
the people of this territory, and particularly towards the com-
plainant.

§ 30. Where bond is or is not given.] If the undertaking required
by the last section be given, the party complained of must be dis-
charged. If he do not give it, the magistrate must commit him to

Criminal Procedure. Pttblio Opitbnsbs. 809

prison, specifying in the warrant the requirement to give security, the
amount thereof, and the omission to give the same.

§ 31. Person may be discharged.] If the person complained of be
committed for not giving security, he may be discharged by any jus-
tice of the peace of the county, or police, or special justice of the city,
upon giving the same.

§ 32. Magistrate to transmit undertaking.] The undertaking
must be transmitted by the magistrate to the next district court of the
county.

§ 33. Assault in presence of magistrate.] A person who, in the
presence of a court or magistrate, assaults or threatens to assault
another, or commit an offense against his person or property, or who
contends with another with angry words, may be ordered by the court
or magistrate to give security, as provided in section twenty-nine, or
if he refuse to do so, he inay be committed as provided in section
thirty.

§ 34. Person must appear at district court.] A person who has
entered into an undertaking to keep the peace must appear on the
first day of the next term of the district court of the county. If he do
not, the court may forfeit his undertaking, and order it to be prose-
cuted unless his default be excused.

§ 35. When person may be discharged.] If the complainant do
not appear, the person complained of may be discharged, unless good
cause to the contrary be shown.

§ 36. Proceedings when parties appear.] If both parties appear,
the couVt may hear their proofs and allegations, and may either dis-
charge the undertaking, or require a new one for a time not exceeding
one year.

§ 37. When undertaking to keep the peace is broken.] An
undertaking to keep the peace is broken on the failure of a person
complained of to appear at the district court, as provided in section
thirty-four, or upon nis being convicted of a breach of the peace.

§ 38. Undertaking prosecuted.] Upon the district attorney pro-
ducing evidence of such conviction to the district court to which the
undertaking is returned, that court must order the undertaking to be
prosecuted, and the district attorney must thereupon commence an
action upon it in the name of this territory.

§ 39. What alleged in the action.] In the aistion, the offense
stated in the record of conviction must be alleged as the breach of the
undertaking, and such record is conclusive evidence thereof.

§ 40. Limitation.] Security to keep the peace or to be of good
behavior cannot be required, except as prescribed in this chapter.

CHAPTER IV.

police in cities, and their attendance at exposed places.

§ 41. Organization of police.] The organization and regulation of
the police in the cities and villages of this territory are governed by
special statutes.

810 Public Offenses. Crinmial Procedure.

§ 42. FoROB TO ATTEND PUBLIC MEETINGS.] The mayor or other
oflBcer having the direction of the police in a city or village, must
order a force sufficient to preserve the peace to, attend any public
meeting, when he is satisfied that a breach of the peace is reasonably
apprehended.

CHAPTER V.

SUPPRESSION OF RIOTS.

§ 43. Offiobk may command assistance.] When a sheriff of other
public officer, authorized to execute process, finds, or has reason to
apprehend, that resistance will be made to the execution of the nrocess,
he may Command as many male inhabitants of his county as ne may
think proper, and any military company or companies in the county,
armed and equipped, to assist him in overcoming the resistance, and
if necessary, m seizing, arresting, and confining the resisters and their
aiders and abettors, to be punished according to law.

§ 44. Officer must report resisters.] The officer must certify to
the court from which the process is issued, the names of the resisters
and their aiders and abettors, to the end that they may be proceeded
against for contempt.

§ 45. Refusal a misdemeanor.] Every person commanded by a
public officer to assist him in the execution of process, as provided in
section forty-three, who, without lawful cause, refuses or neglects to
obey the command, is guilty of a misdemeanor.

§ 46. Governor order additional force.] If it appears to the
governor that the power of the county is not sufficient to enable the
sheriff to execute process delivered to him, or to suppress riots and to
preserve the peace, he must, on the application of the sheriff, or the
judge, order such a force from any other county or counties, as is
necessary; and all persons so ordered or summoned by the governor or
acting governor, are required to attend and act; and any such persons
who without lawful cause refuse or neglect to obey the command, are
guilty of a misdemeanor.

§ 47. Governor may call on the military.] Under the facts and
circumstances mentioned in the last section, and when the civil power
of the county is not deemed sufficient, it shall be the duty of the
governor to apply to the military authorities of the United Stetes for
a force sufficient to execute the laws and to prevent resistance thereto,
to suppress riots, execute process, and preserve the peace.

§ 48. Unlawful assemblage.] Where any number of persons,
whether armed or not, are unlawfully or riotously assembled, the
sheriff of the county, or any sheriff of the subdivision, and his deputies,
the officials governing the city or town, or the justices of the peace,
and marshals, and constables, and police thereof, or any of them,
must go among the persons assembled, or as near to them as possible,
and command them in the name of the territory, immediately to
disperse.

§ 49. Proceedinqs if do not disperse.] If the persons assembled
do not immediately disperse, the magistrates and officers must arrest

Criminal Procedure. Removal of Officbrb. 811

them, or cause them to be arrested, that they may be punished accord-
ing to law, and for that purpose may command the aid of allpersons
present or within" the county.

§ 50. Who deemed rioters.] If a person, so commanded to aid the
magistrates or oflBlcers, neglect to do so, he is deemed one of the rioters
and is punishable accordingly.

§ 51. Officer guilty of misdemeanor.] If a magistrate or oflBcer
having notice of an unlawful or riotous assembly, mentioned in section
forty-eight, neglect to proceed to the place of the assembly, or as
near thereto as he can with safety, and to exelrcise the authority with
which ^ he is invested for suppressing the same, and arresting the
offenders, he is guilty of a misdemeanor.

§ 52. When officers may disperse same.] If the persons assembled
and commanded to disperse, do not immediately disperse, any two of
the magistrates or oflBlcers mentioned in section forty-eight, may com-
mand the aid of a suflScient number of persons, and may proceed in
such manner a3 in their judgment is necessary to disperse the assembly
and arrest the oflfenders.

§ 53. Precautions before endangering life.] Every endeavor
must be used, both by the magistrates and civil ofl&cers, and by the
oflfieer commanding the troops, which can be made consistently with
the preservation of life, to induce or force the rioters to disperse
before an attack is made upon them by which their lives may be
endangered.

§ 54. Penalty for resisting.] A person who after the publication
of a proclamation by the governor or acting governor, or who, after
lawful notice as aforesaid to disperse and retire, resists, or aids in resist-
ing the execution of process in a county declared to be in a state of
riot or insurrection, or who aids or attempts the rescue or escape of
another from lawful custody or confinement, or who resists or aids
ill resisting a force ordered out by the governor or any civil officer, as
aforesaid, to quell or suppress an insurrection or riot, is euilty of a
felony, and is punishable by imprisonment in the territorial prison for
not less than two years.

TITLE III.

of judicial proceedings for the removal of public officers.

CHAPTER I.

OF THE REMOVAL OF CIVIL OFFICERS.

§ 55. Pkoobedings.] In addition to the proceedings mentioned in
chapter XXVI of the Code of Civil Procedure and chapter XXII of
the Political Code, and apart and distinct from any other criminal
action or proceedings, the following provisions are adopted to obtain
a judgment of removal from office,

812 Removal of Officers. Criminal Procedure.

§ 56. Accusation, how presented.] An accusation in writing
against any county, township, city, or municipal officer, for willful or
corrupt misconduct in office may be presented by the grand jury to
the district court of the county in or for which the officer accused is
elected or appointed.

§ 57. Requisites of accusation.] The accusation must state the
offense charged, in ordinary and concise language, without repetition,
and in such manner as to enable a person of common understanding
to know what is intended.

§ 58. Duty of judge and attorney.] After receiving the accusation
the judge to whom it is delivered must forthwith cause it to be trans-
mitted to the district attorney of the county or subdivision, except
when he is the officer accused, who must cause a copy thereof to be
served upon the defendant, and require, by written notice of not less
than five days, that he appear before the district court of the county or
subdivision, and answer the accusation at a specified time. The
original accusation must then be filed with the clerk of the court,

§ 59. Defendant to appear.] The defendant must appear at the
time appointed in the notice, and answer the accusation, unless, for
sufficient cause, the court assigns another day for that purpose. If he
do not appear, the court may proceed to hear and determine the accu-
sation in his absence.

§ 60. Defendant's answer.] The • defendant may answer the
accusation either by objecting to the sufficiency thereof, or of any
article therein, or by denying the truth of the same.

§ 61. How OBJECTION MADE.] If he object to the legal sufficiency of
the accusation, the objection must be in writing, but need not be in
any specific form, it being sufficient if it present intelligibly the ground
of the objection.

§ 62. Denial.] If he deny the truth of the accusation the denial
may be oral, and without oath, and must be entered upon the
minutes.

§ 63. Answer.] If an objection to the sufficiency of the accusation
be not sustained, the defendant must answer the accusation forthwith.

§ 64. Judgment or trial.] If the defendant plead guilty, or refuse
to answer the accusation, the court must render judgment of convic-
tion affainst him. If he deny the matters charged, the court must
proceed to try the accusatio;n.

§ 65. Method of trial.] The trial must be by a jury, and con-
ducted, in all respects, in the same manner as the trial of an indict-
ment for a misdemeanor. '

§ 66. Judgment if convicted.] Upon a conviction, the court must
pronounce judgment that the defendant be removed from office. But
to warrant a removal, the judgment must be entered upon the minutes,
assigning therein the causes of removal.

§ 67. Removal of territorial officers.] The same proceedings
may be had, on like grounds, for the removal of any territorial officer
elected by the people of the territory, or appointed by the governor
thereof, except delegate to congress and members of the legislative
assembly.

§ 68. What jury to present.] In such proceedings the accusation
may be presented by the grand jury of the county or subdivision in

Criminal Procedure. Procebdwos. 813

which such territorial officer resides, or in which he has his place of
office for the usual transaction of his official business.

§ 69. Removal op distbiot attorney.] The same proceedings may
be had on like grounds for the removal of a district attorney, except
that the accusation must be delivered by the judge to the clerk, and
by him to such person as may be appointed by the judge, to act as
prosecuting officer in the matter, who is authorized and required to
conduct the proceedings.

§ 70. Other proceedings and penalties.] The same proceedings
may be had against any officer within the jurisdiction oi the court,
who is accused of charging and collecting illegal fees for services ren-
dered or to be rendered in his office, or who has refused or neglected
to perform the official duties pertaining to his office, or who has ren-
dered himself incompetent to perform his said duties by reason of
habitual drunkenness, and upon a conviction thereof, the court may
pronounce judgment that the defendant be removed from office,
or that he pay a fine not exceeding five hundred dollars, in favor of
the informer, with costs of suit; or the court may, in its discretion,
pronounce judgment, both for his removal from office and for the pay-
ment of the fine and costs.

TITLE IV.

OF THE proceedings IN CRIMINAL ACTIONS PROSECUTED BY INDICTMENT

TO THE COMMITMENT iNOLUSIVE.

Chapter L Of the local jurisdiction of public offenses.

II. Of the time of commencing criminal actions.

III. Of the information.

IV.. The warrant of arrest.

V. Arrest, by whom, and how made.

VI. Retaking after ^n escape or rescue.

VII. Examination of the case and discharge of the defend-
ant, or holding him to answer.

CHAPTER I.

OP THE LOCAL JURISDICTION OP PUBLIC 0PPEN8ES.

§ 71. Who punishable.] Every person is liable to punishment for
a public offense, as is prescribed by section fifteen of the penal code,
except it is by law cognizable exclusively in the courts of the United
. States.

§ 12. Offenses consummated within territory.] When the com-
mission of a public offense, commenced without this territory, is
consummated within its boundaries, the defendant is liable to punish-
ment therefor in this territory, though he were out of the territory at
the time of the commission of the offense charged, if he consummated it

814 PBOOBBDiKas. Criminal Procedure.

in this territory through the intervention of an innocent or guilty
agent, or by any other means proceeding directly from himself; and
in such case, the jurisdiction is in the county in which the offense is
consummated.

§ 73. JuEiSMOTiON IN OASB OF DUEL.] Whou an inhabitant or resi-
dent of this territory, by previous appointment or engagement, fights
a duel, or is concerned as second therein, out of the jurisdiction of this
territory, and in the duel a wound is inflicted upon a person, whereof
he dies in this territory, the jurisdiction of the offense is in the county
where the death happened.

§ 74. When person leaves to evade law.] When an inhabitant
of this territory shall have left the same for the purpose of evading
the operation of the provisions of the statutes relating to dueling and
challenges to fight, with the intent or for the purpose of doing any
of the acts prohibited therein, the jurisdiction is in the county in which
the oft'ender was an inhabitant when the offense was committed, or in
any county in which, in the opinion of the governor, the evidence can
be most conveniently obtained and produced, to be designated by him
by a written appointment, filed in the office of the clerk of the court
of that county.

§ 75. Offense committed in two counties.] When a public offense
is committed, partly in one county and partly in another county, or
the acts or effects thereof^ constituting or requisite to the offense,
occur in two or more counties, the jurisdiction is in either county.

§ 76. Committed near boundary.] When a puolic offense is com-
mitted on the boundary of two or more counties, or within five
hundred yards thereof, the jurisdiction is in either county.

§ 77. On board vessel.] When an offense is committed in this
territory on board a vessel navigating a river, lake, or canal, or lying
therein in the prosecution of her voyage, the jurisdiction is in any
county through which the vessel is navigated in the course of her
voyage, or in the county where the voyage terminates.

§ 78. Jurisdiction in certain oases.] The jurisdiction of an
indictment:

1. For forcibly and without lawful authority seizing and confining
another, or inveigling or kidnapping him with intent, against his
will, to cause him to be secretly confined or imprisoned in this terri-
tory, or to be sent out of the territory, or from one county to another; or,

2. For decoying, or taking, or enticing away a child under the age
of twelve years, with intent to detain and conceal it from its parent,
guardian, or other person having lawful charge of the child; or,

3. For inveigling, enticing, or taking away an unmarried female of
previous chaste character, under the age of twenty-one years, for the
purpose of prostitution; or,

4. For taking away any female under the age of sixteen years, from
her father, mother, guardian, or other person having the legal charge
of her person, without their consent, either for the purpose of con- .
cubinage or prostitution.

Is in any county in which the offense is committed, or into or out of
which the person upon whom the offense was committed, may, in the
commission of the offense, have been brought, or in which an act was
done by the defendant in instigating, procuring, promoting, aiding, or

I

Criminal Procedure. PaooBBraNGs. 815

in being an accessory to the commission of the offense, oi in abetting
the parties concerned therein.

§ 79. Bigamy or incest.] When the offense, either of bigamy or of
incest, is committed in one county, and the defendant is apprehended
in another, the jurisdiction is in either county.

§ 80. Proceedings in certain oases.] When property taken in one
county, by burglary, robbery, larceny, or embezzlement, has been
brought into another, the jurisdiction of the offense is in either county.
But ii, before the conviction of the defendant in the latter, he be
indicted in the former county, the sheriff of the latter must, upon
demand, deliver him to the sheriff' of the former county, upon being
served with a certified copy of the indictment, and upon a receipt
indorsed thereon by the sheriff of the former county, of the delivery
of the body of the defendant; and is, on filing the copy of the indict-
ment and the receipt, exonerated from all liability in respect to the
custody of the defendant.

§ 81. Jurisdiction of accessory.] In the case of an accessory in
the commission of a public offense, the jurisdiction is in the county
where the offense of the accessory was committed, notwithstanding
the principal offense was committed in another county.

§ 82. CfoNVioTioN OR acquittal a bar.] When an act charged as a
public offense is within the jurisdiction Of another territory, county,
or state, as well as this territdry, a conviction or acquittal thereof in
the former, is a bar to a prosecution or indictment therefor in this
territory.

§ 83. Sams of two oountibs.] When an offense is in the jurisdic-
tion of two or more counties^ a conviction or acquittal thereof in one
county is a bar to a prosecution or indictment thereof in another.

§ 84. Inmctmbnt for escape.] The jurisdiption of an indictment
for escaping from prison is in anv county of the territory.

§ 85. Stolen property.] The jurisdiction of an inaictment for
stealing in any state or country, or other territory, the property of
another, or receiving it, knowing it to have been stolen, and bringing
the same into this territory, is in any county into or through which
such stolen property has been brought.

§ 86. For murder or manslaughter.] The jurisdiction of an
inaictment for murder or manslaughter, when the injury which caused
the death was inflicted in one county, and the party injured dies in
another county, or out of the territory, is in tne county where the
injury was inflicted.

§ 87. Against a principal not present.] The jurisdiction of an
indictment against a principal in the commission of a public offense,
when such principal is not present at the commission of the principal
offense, is in the same county it would be under this code if he were
80 present and aiding and abetting therein.

816 PROOSSDiKas. Criminal Procedure.

CHAPTER II.

OF THE TIME OP COMMENCING CRIMINAL ACTIONS.

§ 88. For murder unlimited.] There is no limitation of the time
within which a prosecution for murder must be commenced. It may
be commenced at any time after the death of the person killed.

§ 89. Limit in other oases.] In all other cases, an indictment for
a public oflFense must be found within three years after its commission.

§ 90. Defendant's absenoe.] If, when the oflfense is committed.
the defendant be out of the territory, the indictment may be found
within the term herein limited after his coming within the territory,
and no time during which the defendant is not an inhabitant of, or
usually resident within the territory, is part of the limitation.

§ 91. When indictment is pound.] An indictment is found within
the meaning of the last three sections, when it is duly presented by
the grand jury in open court, and there received and filed.

CHAPTER III.

OP the information.

§ 92. Information defined.] The information is the allegation in
writing, made to a magistrate, that a person has been guilty of some
designated public oflfense.

§ 98. Magistrate defined.] A magistrate is an officer having
power to issue a warrant for the arrest of a person charged with a
public oflfense.

§ 94. Who are magistrates.] The following persons are magis-
trates :

1. The judges of the supreme court.

2. The district ludges.

3. Justices of the peace.

4. Police and other special justices, appointed or elected in a city,
village, or town.

CHAPTER IV.

THE WARRANT OF ARREST.

§ 95. Magistrate must issue.] When an information, verified by
oath or affirmation, is laid before a magistrate of the commission of a
public offense, he must, if satisfied therefrom that the offense com-
plained of has been committed, and that there is reasonable ground to
believe that the defendant has committed it, issue a warrant of arrest.

§ 96. Warrant — form of.] A warrant of arrest is an order in
writing in the name of the territory, signed by a magistrate, com-

Criminal Procedure. Pbocbbdings. , 817

manding the arrest of the defendant, and may be substantially in the
following form:

County of

The Territory of Dakota. To any sheriff, constable, marshal, or policeman, in this territoty
(or in the county of , or as the case may be) :

Information upon oath having been this day laid before me that the crime of (designating it)
has been committed, and accusing C. D. thereof;

You are therefore commanded forthwith to arrest the above named C. D.and bring him before
me, at (naming the place), or in case of my absence or inability to act, before the nearest or
most accessible magistrate in this county.

Dated at , this day of ,18....

E. F., Justice o{ the peace (or as the case may be).

§ 97. Requisites op warrant.] The warrant must specify the
name of the defendant, or if it be unknown to the magistrate, the
defendant tnay be designated therein by any name. It must also
state an offense in respect to which the magistrate has authority to
issue the warrant, and the time of issuing it, and the county, city,
town, or village, where it is issued, and be signed by the magistrate
with his name of oflSce.

§ 98. To WHOM DIRECTED.] The warrant must be directed to and
executed by a peace oflScer.

§99. Peace OFFICER.] A peace officer is a sheriff of a county or
subdivision, or constable, marshal, or policeman of a city, town, or
village, or township.

§ 100. Warrant by judges.] If the warrant be issued by a judge
of the supreme court, or a district judge, it may be directed generally
to any^ sheriff, constable, marshal, or policeman, in the territory, and
may be executed by any of those officers to whom it may be delivered.

§ 101. Execution — other county.] If it be issued by any other
ma^strate. it may be directed generally to any sheriff, constable, mar-
shal, or policeman, in the county in which it is issued, and may be
exeoutea in that county, or if the defendant be in another county it may
be executed therein, upon the written direction of a magistrate of that
<50tinty, indorsed upon the warrant, signed by him, with his name of
office, and dated at the county, city, town, or village where it is made,
to the following effect:

■

This warrant may be executed in the county of (as the case may be).

§ 102. Prerequisites to indorsekent.] The indqrsement men'-
tioned in, the last section cannot^ however, be made unless upon the
oath of a creditable witness, in writing, indorsed on or aimexea to the
warrant, proving the handwriting of the magistrate by whom it was
issued. Upon this proof the magistrate indorsing the warrapt is
exempted from liability to a civil or criminal action, though it after-
wards appear that the warrant was illegally or improperly issued.

§ 103. Duty op officer if felony.] If the offense charged in the
warrant be a felony, the officer making the arrest must take the
defendant before the magistrate who issued the warrant, or some other
magistrate in the same county, as provided in section 107.

§ 104. If a misdemeanor.] If the offense charged in the warrant be
a misdemeanor, and the defendant be ^arrested in another county, the
officer must, upon being required by the defendant, take him before a
magistrate in that county, who must admit the defendant to bail, and
take bail from him accordingly.

59

818 Proceedings. Criminal Procedure.

§ 105. Proceedings if bail taken.] On taking bail, the magistrate
must certify that fact on the warranty and deliver the warrant and
undertaking of bail to the officer having charge of the defendant. The
officer must then discharge the defendant from arresti, and must, with-
out delay, deliver the warrant and undertaking to the clerk of the
court at which the defendant is required to appear.

§ 106. Where bail is not given.] If, on the admission of the
defendant to bail, as provided in section 104, bail be not forthwith
given, the officer must take the defendant before the magistrate "who
issued the warrant, or some other magistrate in the same county, as
provided in the next section.

§ 107. When issuing — ^magistrate absent.] When, by the preceding
sections of this chapter, the defendant is required to be taken before
the magistrate who issued the warrant, he may, if the magistrate
be absent or unable to act, be taken before the nearest or most access-
ible ma^strate in the same county. The officer must, at the same
time, deliver to the magistrate the warrant, with the return indorsed
and subscribed by him.

§ 108. Delay prohibited.] The defendant must in all cases be taken
before the magistrate without unnecessary delay.

§' 109. Before magistrate did not issue.] If the defendant be taken
before a magistrate other than the one who issued the warrant, the
information on which the warrant was granted must be sent to that
magistrate, or if it cannot be procured, tne prosecutor and his witness
must be summoned to give their testimony anew.

§ 110. Defendant from other county.] When an information is
laid before a magistrate of the commission of a public offense triable in
another county of the territory, but showing tnat the defendant is in
the county where the information i& laid, the same proceedings must
be had as prescribed in this chapter, except that tne warrant most
require the defendant to be taken before the nearest and most access-
ible magistrate of the county in which the offense is triable, and tbe .
information of the informant with the dispositions, if any, of the wit-
nesses who may have been produced, must be delivered by the magis-
trate to whom the warrant is delivered.

§ 111. Duty of officer.] The officer who executes the warrant
must take the defendant before the nearest or most accessible magis-
trate of the county in which the ofltense is triable, with his return
indorsed thereon, and the magistrate must then proceed in the same
manner as upon a warrant issued by himself.

§ 112. If OFFENSE A MISDEMEANOR.] If the offeuse charged in the
warrant issued pursuant to section 110, is a misdemeanor, the officer
must, upon being required by the defendant, take him before a mag-
istrate of the county in which the warrant was issued, who must admit
the defendant to bail, and immediately transmit the warrant, informa-
tion, depositions, if any, and undertaking, to the clerk of the court in
which tne defendant is required to appear.

Crim inal Procedure. Proceedings. 819

CHAPTER V.

ARREST, BY WHOM^ND HOW MADE.

§ 113. Arrest defined.'] Arrest is the taking of a person into
•custody, that he may be held to answer for a public offense.
§ 114. By whom made.] An arrest may be either:

1. By a peace officer, under a warrant:

2. By a peace officer, without a warrant; or,

3. By a private person.

§115. Aid OP officer.] Every person must aid an officer in the
•execution of a warrant, if the officer require his aid.

§ 116. Felony, when made — misdemeanor.] If the offense charged
is a felony, the arrest may be made on any day, and at any time of the
day or night. If it is a misdemeanor, the arrest cannot be made at
night, unless upon the direction of the magistrate indorsed upon the
warrant.

§ 117. Arbe8t how made.] An arrest is made by an actual restraint
of the person of the defendant, or by his submission to the custody of
the officer.

§ 118. Restraint.} The defendant is not to be subjected to any
more restraint than is necessary for his arrest and detention.

§ 119. Officer must show warrant.] The officer must inform the
'defendant that he acts under the authority of the warrant, and must
^Iso show the warrant if required.

§ 120. . If defendant resist.] If, after notice of intention to arrest
the defendant, he either flee or forcibly resist, the officer may use all
necessary means to affect the arrest.

^ 121. Officer may break door.] The officer may break open an
•outer or inner door or window of a dwelling house, to execute the
warrant, if after notice of his authority and purpose, he be refused
•admittance.

§ 122. Same to liberate.] An officer may break open an outer
•or inner door or window of a dwelling house for the puri)ose of
liberating a person who, having entered tor the purpose of making an
arrest, is detained therein, or when necessary for his own liberation.

§ 123. Arrest without warrant] A peace officer may, without
a warrant, arrest a person:

1. For a public offense, committed or attempted in his presence.

2. When the person arrested has committed a felony, although not
in his presence.

3. When a felony has in fact been committed, and he has reasonable
•cause for believing the person arrested to have committed it.

4. On a charge, made upon reasonable cause^ of the. commission of ^
felony by the party arrested.

§ 124. May BREAK door.] To make an arrest as provided in the
last section, the officer may bVeak open an outer or inner door or win-
dow of a dwelling house, it^ after notice af his office and purpose, he be
refused admittance.

8 125. Without warrant at night.] He may also at night, with-
out a warrant, arrest any person whom he has reasonable cause for

820 Pboobbdings. Criminal Procedure^

believing to have committed a felony, and is justified in making the
arrest though it afterward appear that the felony had not been com-
mitted.

§ 126. Authority stated.] When arresting a person without a
warrant, the officer must inform him of his authority and the cause of
the arrest, except when he is in the actual commission of a public offense^
or is pursued immediately after an escape.

§ 127. Bystander's arrest.] He may take before a magistrate, a.
person, who, being engaged in a breach of the peace, is arrested by a
bystander and delivered to him.

§ 128. Offense in presence of magistrate.] When a public
offense is- committed in the presence of a magistrate, he may, by a verbal
or written order, command any. person to arrest the offender, and may
thereupon proceed as if the offender had been brought before him on a
warrant of arrest.

§ 129. Private person arrest.] A private person may arrest
another:

1. For a public offense committed or attempted in his presence.

2. When the person arrested has committed a felony, although not
in hispresence.

3. Wh^n a felony has been in fact committed, and he has reasonable*
cause for believing the person arrested to have committed it.

§ 130. Inform person of cause.] He must, before making the
arrest, inform the person arrested oi the cause thereof, and require
him to submit, except when he is in the actual commission oi the
offense, or when he is arrested on pursuit immediately after its com-
mission.

§ 131. Private person may break door.] If the person to be
arrested have committed a felony, and a private person, after notice of
his intention to make the arrest, be refused admittance, he may break
open an outer or inner door or window of a dwelling house, for the
purpose of making the arrest.

§ 132, Duty in such oases.J A private person who has arrested
another for the commission of a public offense, must, without unneces-
sary delay, take him before a magistrate or deliver him to a peace
officer.

§ 133. Offensive weapons taken.] Any person making an arrest
must take from the person arrested all offensive weapons which he
may have about his person, and must deliver them to the magistrate
before whom he is taken.

CHAPTER VI.

retaking after ant escape or rescue.

§ 134. Pursuit and re-arrest.] If a person arrested, escape or be
rescued, the person from whose custodj^ 4xe escaped or was rescued^
may immediately pursue and retake him, at any time, and in any
place in the territory.

§ 135. May break door or window.] To retake the person escapin^^
or rescued, the person pursuing may, after notice of his intention and

Criminal Procedure. Proceedings. 821

refusal of admittance, break open an outer or inner door or window
of a dwelling house.

CHAPTER YII.

EXAMINATION OF THE CASE AND DISCHARGE OF THE DEFENDANT, OR

HOLDING HIM TO ANSWER.

•

§ 136. Magistrate's duty.] When the defendant is brought before
a magistrate upon an arrest, either with or without a warrant, on a
charge of having committed a public oflfense, the magistrate must
immediately inform him of the charge against him, and of his right
to the aid of counsel in every ertage of the proceedings, and also of
his right to waive an examination before any further proceedings are
had. /- '»

§ 137. Allow depend AiTT^ciwiisEL.] He must also allow the defend-
antfL reasonable time to seudl fi^ eounsel, and adjourn the examination
for that purpose; and mu84«, upon/the request of the defendant, require
a peace officer to take a me^agg to such counsel in the county or city,
as the defendant may name!', Tfhe officer mqst without delay perform
that duty, and shall receive ' fees therefor as upon service of a sub-
poena.

§ 138. Examination.] The magistrate must^ immediately after the
appearance of counsel, or if none appear and the defendant require
tne aid of counsel, after waiting a reasonable time therefor, proceed
to examine the case.

§ 139. Adjournment.] The examination must be completed at one
session unless the magistrate for good cause adjourn it. The adjourn-
ment cannot be for more than two days at each time, normoi^e than
six days in all, unless by consent or on motion of the defendant.

§ 140. Disposition of defendant on adjournment.] If an adjourn-
ment be had for any cause, the magistrate must commit the defendant
for examination, or discharge him from custody upon sufficient bail
or upon the deposit of money as provided in this code, as se curity for
his appearance at the time to which the examination is adjourned.

§ 141. Commitment for examination.] The commitment for exam-
ination is by an indorsement signed by the magistrate on the warrant
of arrest, to the following effect:

The within named A. B., having been broaght before me under this warrant, and having

failed to give bail for his appearance^ is committed to the sheritf of the county of (or to

the marshal of the city of , as the case may be) to await examination on the day

of 18.. at o*clock, at which time you will have his body before me at my office.

§ 142. Duty on examination.] At the examination, the magistrate
must, in the first place, read to the defendant the information on file
before him. He must also, after the commencement of the prosecu-
tion, issue subpoenas for any witness required by the prosecutor or
the defendant.

§ 143. Rights of defendant.] The witnesses must be examined in
the presence of the defendant, and may be cross-examined in his
behalf And on demand of the defendant all the testimony in the
<5ase must be reduced to writing in the form of depositions.

822 Proceedings. Criminal Procedure^

§ 144. May produce witnesses.] When the examination of the
witnesses on the part of the territory is closed, any witnesses the
defendant may produce must be sworn and examined.

§ 145. Magistrate to keep depositions.] The magistrate or his
clerk must keep the depositions taken on the examination, if any have
been taken, and the statement of the defendant, if any, until they are
returned to the proper court, and must not permit them to be inspected
by any person except a judge of a court naving jurisdiction of the
offense, the district attorney of the county, and the defendant and his
counsel.

§ 146. Violation, misdemeanor.] A violation of the provisions of
the last section, is punishable as a misdemeanor.

§ 147. Discharged defendant.] After hearing the proofs and the
statement of the defendant, if he have made one, if it appear, either
that a public offense has not been comiiaitted, or that there is no
suflScient cause to believe the defendant guilty thereof, the magistrate
must order the defendant to be disch^ifi^6d,> by an endorsement on the
information over his signature, to th# wllbwing effect:^^^4j^^ d*..^%bL i^%)

There being no sufficient cause to believe the witiinifamed A. B. guilty of the offense
within mentioned, I order him to be discharged. >;« f

§148. When HELD TO answer.] If,* Jiowever, it appear from the
examination that a public offense has been committed, and that there
is sufficient cause to believe the defendant guilty thereof, the magis-
trate must, in like manner, indorse on the information an order signed
by him to the following effect:

It appearing to me that the offense in the within information mentioned (or any other offeoae^
according to the fact, stating generally the nature thereof)* has been committed, and that there
is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to-
answer the same.

§ 149. Proceedings if not bailable.] If the offense be not bailable^
the following words, or words to the same effect, must be added to the
indorsement:

And that he is hereby committed to (the sheriff of , or to the marshal of the city of. . . .,.

or as the case may be).

§ 150. When bailable.] If the offense is bailable, and bail is taken
by the magistrate, the following words, or words to the same effect^
mnst be added to the indorsement mentioned in section 148:

And I have admitt^ him to bail, to answer, by the undertaking hereto annexed.

§ 151. Ip BAIL NOT TAKEN.] If the offcnse is bailable, and the defend-
ant is admitted to bail, but bail have not been taken, the following
words, or words to the same effect, must be added to the indorsement
mentioned in section 148:

And that he is admitted to bail in the sum of . * . • dollars, and be committed to the sheriff of

the county of ... (or the marshal of the city of , or as the case may be) until said bail be

given.

§ 152. Commitment.] If the magistrate order the defendant to be
committed, as provided in sections 149 and 151, he must make out a
commitment, signed by him, with his name of office, and deliver it,
with the defendant, to the officer to whom he is committed, or if that

Criminal Procedure. Prooeedinos. 823

officer be not present, to a peace officer, who must immediately deliver
the defendant into the proper custody, together with the . commitment.
§ 153. Form of commitment.] The commitment must be to the fol-
lowing effect:

County of ... -

The Territory of Dakota. To the sheriff of the county of * . . . (or marshal of the city of ... .
or as the case may be) :

An order having been this day made by me, that A. B. be held to answer upon a charge of
(stating briefly the nature of the offense, with time and place as near as may be), yon are com-
manded to receive him into your custody, and detain him until he is legally discharged.

Dated at . . .- , this .... day of . . . ., 18. . . .

C. D., Justice of the Peace (or as the case may be).

§ 154. Witness to give undertaking.] On holding the defendant
to answer, the magistrate may take from each of the material wit-
nesses examined before him, on the part of the territory, a written
undertaking, without surety, to the effect that he will appear and
testify at the court to which the information and depositions, if any, are
to be sent, or that he will forfeit such sum as the magistrate may fix
and determine.

§ 156. Same with security.] When the magistrate is satisfied, by
proof, on oath, that there is reason to believe that any such witness
will not appear and testify, unless security be required, he may order
the witness to enter into a written undertaking, with such sureties and
in such sum as he may deem proper, for his appearance, as specified in
the last section.

g 156. Infants and marribi) women.] Infants and married women,
who are material witnesses against the defendant, may, in like man-
ner, be required to procure sureties for their appearance, as provided
in the last section.

§ 157. Witness committed.] If a witness, required to enter into an
undertaking to apjjear and testify, either with or without sureties,
refuse compliance with the order for that purpose, the magistrate must
commit him to prison until he comply, or is legally discharged.

§ 158. Subsequent security.] When, however, in pursuance of
section 154, any material witness on the part of tiie people has been
discharged on his undertaking, without surety, if afterwards on the
sworn application of the district attorney or otner person on behalf of
the territory, made to the magistrate or to any juc&e, it satisfactorily
appears that the presence of such witness or any other person on the
part of the people is material, or necessary on the trial m court, such
magistrate, or judge, may compel such witness, or any other material
witness on the part of the temtory, to give an underba.kin^, with sure-
ties, to appear on the said trial and give his tiostimony therein; and,
for that purpose, the said magistrate or jud^e, may issue a warrant
against any such person, under his hand, with or without seal, directed
to a sheriff, marshal, or other officer, to arrest such person and bring
him before such magistrate or judge.

§ 159. Witness may be confined.] And in case the person so
arrested shall neglect or refuse to give said undertaking in the manner
required by said ma^strate or judge, he may issue a warrant of com-
mitment a^inst such person, which shall be delivered to said sheriff
or other officer, whose duty it shall be to convey such person to the
jail mentioned in said warrant, and the said person shall remain in
confinement until he shall be removed to the grand jury and to the court.

824 Before Indictment. Criminal Procedure.

for the purpose of giving his testimony, or until he shall have given
the undertaking required by said magistrate or judge.

§ 160. What magistrate must return.] When a magistrate has
discharged a defendant, or has held him to answer as provided in sec-
tions 147 and 148, he must return immediately to the next district
court of the county or subdivision, the warrant, if any, the informa-
tion, the depositions, if any have been taken, of all the witnesses
examined before him, th^e statement of the defendant if he have made
one, and all undertakings of bail or for the appearance of witnesses
taken by him, together with a certified record of the proceedings as
they appear on his docket.

TITLE V.

OP proceedings after commitment and before indictment.

Chapter I. Preliminary provisions.

11. Formation of the grand jury.

III. Powers and duties of the grand jury.

IV. Presentment and proceedings thereon.

CHAPTER I,

preliminaby provisions.

§ 161. Public offenses — how prosecuted.] All public offenses
triable in the district courts must be prosecuted by indictment, except
as provided in the next section.

§ 162. Removal from office.] When the proceedings are had for
the removal of county, township, city, municipal, or territorial oflBcers,
they may be commenced by an accusation in writing, as provided in
chapter I, of title III, of this code.

CHAPTER II.

formation of the grand jury.

§ 163. Grand jury defined.] A grand jury is a body of men con-
sisting of sixteen jurors, impaneled and sworn to inquire into, and
true presentment make of all public offenses against the territory,
committed or triable within the county or subdivision for which the
court is holden.

Criminal Procedure. Befobe Indictment. 825

§ 164. Completing jury.] Whenever challenges to individual
grand jurors is allowed, the court shall make ^an order to the sheriff,
deputy sheriff, or coroner, to summon without delay, from the body of
the county or subdivision, a suflBcient number of persons to complete
or to form a grand jury.

§ 165. Twelve juroes find indictment.] No indictment shall be
found, nor shall any presentment or accusation be made without the
concurrence of at least twelve grand jurors.

§ 166. Who may challenge panel.] The territory, or a person
held to answer a charge for a public offense, may challenge the panel of
a grand jury, or an individual grand juror.

§ 167. Challenge to panel.] A challenge to the panel may be
interposed by either party for one or more of the following causes
only:

1. That the requisite number of ballots was not drawn from the
jury box of the county or subdivision.
• 2. That notice of the drawing of the grand jury was not given.

3. That the drawing was not had in the presence of the officers
designated by law, or m the manner prescribed by law,

§ 168. Jury disohargbi).] If a challenge to the panel be allowed,
the grand jury must be discharged.

§ 169. Challenge op juror.] A challenge to an individual grand
juror may be interposed by either party, for one or more of the foUow-
ine causes only:

1. That he is a minor.

2. That he is not a q^ualified elector.

3. That he is otherwise disqualified under any of the provisions of
chapter XIX of the Political Code.

4. That he is insane.

5. That he is a prosecutor upon a charge against the defendant.

6. That he is a witness on the part of the prosecution^ and has been
served with process or bound by an undertaking as such.

7. That a state of mind existe on his part in reference to the case, ox
to either party, which will prevent him from acting impartially and
without prejudice to. the substantial rights of the party challenging,
but no person shall be disqualified a$ a juror by reason of
having formed or expressed an opinion upon the matter or cause to be
submitted to such jury, foundea upon public rumor, statements in
public journals, or common notoriety, provided it satisfactorily appear
to the court upon his declaration, under oath, or otherwise, that he
can and will, notwithstanding such an opinion, act impartially and
fairly upon the matters to be submitted to him.

§ 170. Oral or written.] Challenges may be oral or in writing,
and must be tried by the court.

§ 171. Duty of court and clerk.] The court must allow or dis-
allow the challenge, and the clerk must enter its decision upon the
minutes.

§ 172. Effect of challenge allowed.] If a challenge to an
individual grand juror is allowed, he cannot be present at, or take
part in the consideration of the charge against the defendant who
interposed the challenge, or the deliberations of the grand jui-y
thereon.

826 Before Indictment. Criminal Procedure.

§ 173. Violation of last section.] The grand jury must inform
the court of a violation of the last section, and it is punishable by the
court as a contempt.

§ 174. Challenge before oath.] Neither the territory, nor a per-
son held to answer a charge for a public oflfense, can take advan^ge
of any objection to the panel or to an individual grand juror unless
it be by challenge, and before the grand jury is sworn, except that
after the grand jury is sworn, and before the indictment is found, the
court may, in its discretion, upon a good cause shown, receive and
allow a challenge.

§ 175. Court order another jury.] If the grand jury is discharged
by an allowance of a challenge to the whole panel, or if an offense is
committed during the sitting of the court, after the regular discharge
of the grand jury, or if afber such discharge a new indictment becomes
requisite by reason of an arrest of judgment, or by the quashing of
an indictment, or if from any other good and suflBcient cause another
grand jury may become necessary, the court mav, in its discretion,
order that another grand jury be summoned, and the court may to
that end forthwith make an order to the county commissioners for the
immediate selection and furnishing to the clerk of a list of jurors,
and may make such further orders to the clerk, sheriff, and other
officers for an immediate compliance with their duties as may be
proper to obtain another grand jury at and during the same term of
the court.

§ 176. Special grand jury.] A grand jury formed and impaneled
as to and in a particular case, after a challenge or challenges to
individual grand jurors have been allowed, shall only be sworn to act
in such particular case, and as to all other cases at the same term of
the court the grand jury shall be formed in the usual manner provided
by law.

§ 177. Court to appoint foreman.] From the persons summoned
to serve as grand jurors, and appearing, the court must appoint a foft-
man. The court must also appoint a foreman when a person alreadv
appointed is discharged or excused before the grand jury are dismissed,

g 178. Oath of foreman.] The following oath must be administered
to the foreman of the grand jury:

Tou, as foreman of this grand Jury, shall diligently inquire into, and true presentment make
of all public offenses against this territory, committed or triable within this county (or subdi-
vision), of which you shall have or can obtain legal evidence. You will keep your own counsel
ana that of your fellows, and of the territory, and will not, except when required in the due course,
of Judicial proceedings, disclose the testimony of any witness examined before you, nor any-
thing which you or any other grand Juror may have said, nor the manner in which yon or any
other grand ^uror may have voted on any matter before you. You shall present no person
through malice, hatred, or ill will, nor leave any unpresented through fear, favor, or affeetion,
or for any reward, or the promise, or hope thereof; but in all your presentments, or indictments,
you shall present the truth, the whole truth, and nothing but the truth, according to the best of
your skill and understanding. So help you God.

§ 179. Oath to other grand jurors.] The following oath must
be immediately thereupon administered to the other grand jurors
present:

The same oath which your foreman has now taken before you on his part, you, and each of
you, shall well and truly observe on your part. So help you God.

§ 180. Grand jury charged.] The grand jury being impaneled
and sworn, must be charged by the court. In doing so, the court

Criminal Procedure. Befobb Indictment. 827

must give them such information as it may deem proper as to
the nature of their duties, and as to any charges itor public
offenses returned to the court, or likely to come before the grand
jury.

§ 181. Jury must retire.] The grand jury must then retire to a
private room, and inquire into the offenses cognizable by them.

§ 182. Appoint clerk — ^his duty.] The grand jury must appoint
one of their number as clerk, who must preserve minutes of their
proceedings, except of the votes of the individual members, and of the
evidence given before them.

g 183. Jury DISCHARGED.] On the completion of the business before
them, or whenever the court shall be of opinion that the public
interests will not be subserved by a further continuance of the
session, the grand jury must be discharged by the court: but
whether the business be completed or not, they are discharged by the
final adjournment of the court.

CHAPTER III.

POWERS AND DUTIES OF A .GRAND JURY.

§ 184. General powers and duties.] The ^rand jury has power^
and it is their duty to inquire into all public offenses committed
or triable in the county or subdivision, and to present them to
the court, either by presentment or indictment, or accusation in
writinff.

§ 185. Presentment defined.] A presentment is an informal
statement in writing by the grand jury, representing to the court
that a public offense has been committed, which is triable in the
county or subdivision, and that there is reasonable ^ound for
believing that a particular individual, named or described, has com-
mitted it.

% 186. Indictment defined.] An indictment is an accusation in
writing presented by a grand jury to a competent court, charging a per-
son with a public offense.

§ 187. Oath to witness.] The foreman may administer an oath to
anv witness appearing before the grand jury.

§ 188. Evidence received.] In the investigation of a charge for
the purpose of either presentment, or indictment, or accusation, the
grand jury can receive no other evidence than such as is given by wit-
nesses produced and sworn before them, or furnished by legal docu-
mentary evidence.

§ 189. Same.] The grand jury can receive none but legal evidence,
and the best evidence in degree to the exclusion of hearsay or sec-
ondary evidence.

§ 190. Evidence for defendant.] The grand jury is not bound to
hear evidence for the defendant, but it is their duty to weigh all the evi-
dence submitted to them, and when they have reason to believe that
there is other evidence, they may by and with the consent of the dis-
trict attorney order such evidence to be produced, and for that pur-
pose the district attorney may issue process for the witnesses.

828 Before Indictment. Criminal Procedure.

§ 191. Indictment to be found.] The grand jury ought to find an
indictment when all the evidence before them, taken together, is such
as in their judgment would, if unexplained or uncontradicted, warrant
a conviction by the trial jury.

§ 192. Member give evidence.] If a member of the ^rand jury
knows, or has reason to believe, that a public offense has been com-
mitted, which is triable in the county or subdivision, he must declare
the same to his fellow jurors, who must thereupon investigate the
same.

§ 193. Subjects of inquiry.] The grand jury must inquire:

1. Into the case of every person imprisoned in the jail of the county
or subdivision, on a criminal charge, and not indicted;

2. Into the condition and management of the public prisons in the
county or subdivision; and,

3. Into the willful and corrupt misconduct in office of public officers
of every description in the county or subdivision.

§ 194. Access to prisons.] They are also entitled to free access, at
all reasonable times, to public prisons, and to the examination, with-
out charge, of all public records m the county.

§ 195. District attorney privileged.] The grand jury may at all
reasonable times ask the advice of the court, or of the district
attorney. The district attorney may at ail times appear before the
grand jury for the purpose of giving information or advice relative to
any matter cognizable before them, and may interrogate witnesses
before them whenever he thinks it necessary; but no other person is
permitted to be present during their sessions except the members and
a witness actually under examination, and no person whomsoever
must be permitted to be present during the expression* of their opin-
ions or the giving of their votes upon any matter before them.

§ 196. Secrecy.] Every member of the erand jury must keep
secret, whatever he himself, or any other grand juror may have saia,
or in what manner he or any other grand juror may have voted on a
matter before them.

§ 197. When juror may disclo.^e.] A member of the grand jury
may, however, be required by any court to disclose the testimony of
a witness examined before the grand jury, for the purpose of ascer-
taining whether it is consistent with that ^iven by the witness before
the court, or to disclose the testimony given before them by any
person, upon a charge against him for perjury in giving his testimony,
or upon his trial therefor.

§ 198. JtJROR not questioned.] a grand juror cannot be questioned
for anything he may say, or any vote he may give in the grand jury,
relative to a matter legally pending before the jury, except for a per-
jury of which he may have been guilty in making an accusation or
giving testimony to his fellow jurors.

Criminal Procedure. Befobb Inmotment. 829

CHAPTER IV.

PRESENTMENT AND PROCEEDINGS THEREON.

§ 199. Presentment — how found.] A presentment cannot be
found without the concurrence of at least twelve grand jurors. When
so found it must be signed by the foreman.

§ 200. How DISPOSED OP.] The presentment, when found, must be
presented by the foreman, in presence of the grand jury, to the couri^
and must be filed with the clerk.

§ 201. Bench warrant may issue.] If the facts stated in the
presentment constitute a public oflFense, triable in the county or sub-
division, the court must direct the clerk to issue a bench warrant for
the arrest of the defendant.

§ 202. By clerk.] The clerk, on the application of the judge or
district attorney, may accordingly, at any time after the order, whether
the court be sitting or not, issue a bench warrant, under his signature
and the seal of the court, into one or more counties, or into any part
of the territorv.

§ 208. Form: of warrant.] The bench warrant, upon presentment,,
must be substantially in the following form:

Coimty of

The territory of Dakota, To any slieriff, constable, marshal, or policeman in this territory:

A presentment having been made on the day of ,18 , to the district court

of the county of (or subdivision . . .) charging CD. with the crime of (designating it

generally), you are therefore commanded forth wim to arrest the above named 0. D., and take

him before E. F., a magistrate of the county of ; or in case of his absence or inability to act^

before the nearest and most accessible magistrate in. . . .county.

Given un(|er my hand, with the seal of said court affixed, this. . . .day of. . . . A. D. 18. . . .

By order of the court.

•[seal.] a. F., Clerk.

§ 204. Where served.] The bench warrant may be served in any
county or part of the territory, and the officer serving it must proceed
thereon as upon a warrant of arrest on an information, except that
when served in another county or part of the territory it need not be
indorsed by a magistrate of that county or nart of the territory.

§ 205. Proceedings by magistrate.] The magistrate, when the
defendant is brought before him, must proceed upon the charges con-
tained in'the presentment, in the same manner as upon a warrant of
arrest on an information.

830 Thk Indictment. Criminal Procedure.

TITLE VI.

OF THE INDICTMENT.

Chapter I. Finding and presentation of the indictment.

II. Rules of pleading, and form of the indictment.

CHAPTER I.

FINDING AND PRESENTATION OF THE INDICTMENT.

§ 206. PiNDiNa.] An indictment cannot be found without the con-
currence of at least twelve grand jurors. When so found, it must be
indorsed, "A true bill," and the indorsement must be signed by the
foreman of the grand jury.

§ 207. Dismissal.] If twelve grand jurors do not concur in finding
an indictment against a defendant who has been held to answer, the
ordinal information of [and] the certified record of the proceedings
beiore the magistrate transmitted to them, must be returned to the
court, with an indorsement thereon, signed by the foreman, to the
effect that the charge is dismissed.

§ 208. Re-submission of charge.] The dismissal of the charge does
not, however, prevent its being a^ain submitted to a grand jury as
often as the court may so direct. But without such direction, it can-
not be again submitted.

§ 209. Names of witnesses.] When an indictment is found the
names of the witnesses examined before the grand jury, must, in all
cases, be inserted at the foot of the indictment or incforsed thereon
before it is presented to the court.

§ 210. Indictment — how peesbnted.] An indictment when found by
the grand jury, must be presented by their foreman, in their presence,
to the court, and must be filed with the clerk, and remain in his office
as a public record.

§ 211. Proceedings to arrest.] When an indictment is found
against a defendant who has not been previously arrested, and is not
under bail, the same proceedings must he had as are prescribed in sec-
tions 239 to 246 inclusive, against a defendant who fails to appear for
arraignment.

CHAPTER II.

rules of pleading and form of the indictment.

* § 212. Forms of pleading.] All the forms of pleading in crim-
inal actions and rules by which the sufficiency of pleadings is to be
determined, are those prescribed by this code.

Criminal Procedure. The Indiotment. 831

§ 213. First pleadinq.] The first pleading on the part of the terri-
tory is the indictment.
§ 214. Requisites of indictment.] The indictment must contain:

1. The title of the action, specifying the name of the' court to which
the indictment is presented, and the names of the parties.

2. A statement of the acts constituting the o£fense, in ordinary and
concise language, and in such manner as to enable a person of com-
mon understanding to know what is intended.

§ 215. Certain and direct.] The indictment must be direct and
certain, as it regards:

1. The party charged.

2. The o£fense charged.

3. The particular circumstances of the offense charged, when they
are necessary to constitute a complete offense.

§ 216. Fictitious name.] When a defendant is indicted or prose-
cuted by a fictitious or erroneous name, and in any stage of the pro-
ceedings his true name is discovered, it must be inserted in the
subsequent proceedings, referring to the fact of his being
indicted by the name mentioned in the indictment.

§ 217. Charge but one offense.] The indictment must charge but
one offense, but the same offense may be set forth in different forms or
degrees under different counts; and when ^he offense may be com-
mitted by the use of different means, the means may be alleged in the
altematiye in the same count.

§ 218. Time offense committed.] The precise time at whicl^ the
offense was committed, need not be stated in the indictment; but it
may be alleged to have been committed at any time before the find-
ing thereof, except where the time is a material ingredient in the offense.

9 219. Certain errors not material.] When an offense involves
the commission of, or an attempt to commit a private injury, and is de-
scribed with sufficient certainty in other respects to identify the act, an
erroneous allegation as to the person injured, or intended to be injured,
is not material.

§ 220. Words how construed.] The words used in an indictment
must be construed in their usual 'acceptance,* in common language,
except words and phrases defined by law, which are to be construed
according to their legal meaning.

§ 221. Statute not strictly pursued.] Words used in a statute
to define a public offense, need not be strictly pursued in the indict-
ment; but other words conveying the same meaning may be used.

§ 222. What is sufficient.] The indictment is sufficient if it can
be understood therefrom:

1. That it is entitled in a court having authority to receive it though
the name of the court be not stated.

2. That it was found by a grand jury of the county or subdivision in
which the court was held.

8. That the defendant is named, or if his name cannot be discovered,
that he is described by a fictitious name, with the statement th^t
his true name is to the jury unknown.

4. That the offense was committed at some place within the
jurisdiction of the court, except where the act, though done without
the local jurisdiction of the county or subdivision, is triable therein.

The Indictment. Criminal Procedure.

lat the offense was committed at some time prior to the time of
y the indictment.

Aat the act or* omission charged as the offense is clearly and
distiiictly set forth in ordinary and concise language, without repe-
tition, and in such a manner as to enable a person of common under-
standing to know what is intended.

7. That the act or omission charged as the offense, is stated with such
a degree of certainty, as to enable the court to pronounce judgment
upon a conviction according to the right of the case.

§ 223. Certain informalities disregarded.] No indictment is
insufficient, nor can the trial, judgment, or other proceedings thereon
be affected, by reason of a defect or imperfection in matter of
form which does not tend to the prejudice of the substantial rights of
the defendant upon the merits.

§ 224. Need not be stated.] Neither presumptions of law, nor
matters of which judicial notice is taken, need be stated in an indict-
ment.

§ 225. Pleading judgment.] In pleading a judgment or other
determination of, or proceeding before, a court or officer of special
jurisdiction, it is not necessary to state- the facts conferring jurisdic-
tion, but the judgment or determination may be stated to Have been
duly given or made. The facte constituting jurisdiction, however,
must be established on the trial.

§ 226. Pleading private statute.] In pleading a private statute,
or a light derived therefrom, it is sufficient to refer to the statute by
its titlfe and the day of its passage, and the court must thereupon take
judicial notice thereof. •

§ 227. Requisites for libel.] An indictment for libel need not set
forth any extrinsic facts for the purpose of showing the application
to the party libeled of the defamatory matter on which the indictment
is founded, but it is sufficient to state generally that the same was
published concerning him, and the fact that it was so published must
be established on trial.

§ 228. Indictment for forgery.] When an instrument, which is
the subject of an indictnlent for forgery, has been destroyed or with-
held by the act or procurement of the defendant, and the fact of the
destruction or withholding is alleged in the indictment and established .
on the trial, the misdescription of the instrument is immaterial.

§ 229. For perjury.] In an indictment for perjury or subordina-
tion of i>erjury, it is sufficient to set forth the substance of the
controversy or matter in respect to which the oflfense was committed,
and in what court or before whom the oath alleged to be false was
taken, and that the court or person before whom it was taken had
authority to administer it, with proper allegations of the falsity of
the matter on which the perjury is assigned, but the indictment need
not set forth the pleadings, record, or proceedings with which the
oath is connected, nor the commission or authority of the court or
person before whom the perjury was committed.

§ 230. Larceny or embezzlement.] In an indictment for the larceny
or embezzlement of money, bank notes, certificates of stock, or valu-
able securities, or for a conspiracy to cheat and defraud a person of
any such property, it is sufficient to allege the larceny or embezzle-

Criminal Procedure. The Indictment. 833

ment, or the conspiiacy to cheat and defraud, to be of money, bank
notes, certificates of stock, or valuable securities, without specifying
the coin, number, denomination, or kind thereof.

§ 231. Selling obscene books.) An indictment for exhibiting, pub-
lishing, passing, selling, or oflFering to sell, or having in possession, with
such intent, any lewd or obscene book, pamphlet, picture, print, card,
paper, or writing, need not set forth any portion of the language used
or figures shown upon such book, pamphlet, picture, print, card,

{)aper, or writing, but it is sufficient to state generally the fact of the
ewdness or obscenity thereof.

§ 232. Several defendants.] Upon an indictment against several
defendants, any otie or more may be convicted or acquitted.

§ 233. Accessories and principals.] The distinction between an
accessory before the fact and a principal, and between principals in
the first and second degree, in cases of felony, is abrogated, and all
persons concerned in the commission of a felony, whether they directly
commit the act constituting the oflfense,^ or aid and abet in its commis-
sion, though not present, must hereafter be indicted, tried, and pun-
ished as principals, and no additional facts need be alleged in any
indictment against such an accessory than are required in an indict-
inent against his principal.

§ 234. Accessory tried, ac] An accessory to the commission of a
felony, may be indicted, tried, and punished, though the principal
felon be neither indicted nor tried, and though the pnncipal may have
been acquitted.

§ 285. CoMPOuiffDiNa a felony.] A person may be indicted for hav-
ing, with the knowledge of the commission of a public oifense, taken
money or property of another, or a ei-atuity, or reward, or an engage-
ment, or promise therefor, upon tne agreement or understanding,
express or implied, to compound or conceal the offense, or to abstain
from a prosecution therefor, or to withhold any evidence thereof,
though the person guilty of the original offense have not been indicted
or tried.

53

834 After Indictment. Criminal Procedure.

TITLE VII.

OF PLEADINGS AND PROCEEDINGS AFTER INDICTMENT AND BEFORE THK

COMMENCEMENT OF THE TRIAL.

Chapter I. Of the arraignment of the defendant.

II. Setting aside the indictment.

III. Demurrer. •

IV. Plea.

V. Removal of the action before trial.

VI. The mode of trial.

VII. Formation of the trial jury.

VIII. Postponement of the trial.

CHAPTER I.

OF THE ARRAIGNMENT OF THE DEFENDANT.

§ 236. Defendant arraigned.] When the indictment is jGiled, the
defendant must be arraigned thereon before the court in which it is
found, if triable therein; if not, before the court to which it is removed
or transmitted.

§ 237. Must be present if felony.] If the indictment is for &
felony, the defendant must be personally present, but if for a misde*
meaner only, his personal appearance is unnecessary, and he may
appear upon the arraignment by counsel.

§ 238. Same — duty of court.] When his personal appearance is
necessary, if he be in custody, the court may direct the oflScer in
whose custody he is, to bring him before it to be arraigned, and the
officer must do so accordingly.

§ 239. Bench warrant issued.] If the defendant have been dis-
charged on bail, or have deposited money instead thereof, and do not
appear to be arraigned, when his personal attendance is necessary,
the court, in addition to the forfeiture of the undertaking of bail or of
the money deposited, may direct the clerk to issue a bench warrant
for his arrest.

§ 240. Samb.1 The clerk, on the application of the district attor-
ney, may accordingly at any time after the order, whether the court
be sitting or not, issue a bench warrant into one or more counties.

§ 241. Form of warrant.] The bench warrant, upon the indict-
ment must, if the oflFense is a felony, be substantially in the following
form:

County of . . . .

The territory of Dakota. To any sheriff, constable, policeman, or marshal in this terriUny:

An indictment having been found on the. . . .day of. . . .A. D. 18. . . ., in the district court m

and for the county (or subdivision) of. . . ., charging C. D. with the crime of. . . . (designatinir it

generally), you are therefore commanded forthwith to arrest the above named C. D. and bring

Criminal Procedure. After Indictment. 835

bim before that court (or })efore the court to which the indictment may have been removed,
naming it) to anstver said indictment; or if the court have adjourned for the term, that you
deliver him into the custody of the sheriff of the county of . . . .

Given under my hand, with the seal of said court affixed, this. . . .day of. . . .A. D. 18. . . .

By order of the court.

[seal.] E. F., Clerk.

§ 242. Same. If the oflfense is a misdemeanor or a bailable felony,
the bench warrant must be in a similar form, adding to the body
thereof a direction to the following eflFect:

Or if he requires it tiiat you take him before any magistrate in that county, or in the county
in which you arrest him, that he may give bail to answer the indictment.

§ 243. Court fix amount of bail.] If the offense charged is bail-
able, the court, upon directing the bench warrant to issue, must fix the
amount of bail; and an endorsement must be made on the bench war*
rant and signed by the clerk, to the following eflfect:

The defendanl is to be admitted to bail in the sum of •dollars.

§ 244. Offense not bailable.] The defendant when arrested under
a warrant for an oflfense not bailable, must be held in custody by
the sheriflF of the county or subdivision in which the indictment is
found.

§ 245. Warrant served in any county.'] The bench warrant may
be served in any county in the same manner as a warrant of arrest,
except, that when served in another county it need not be endorsed by
a magistrate of that county.

§ 246. Taking bail.] If the defendant is brought before a magis-
trate of another county for the purpose of giving bail, the magistrate
must proceed in respect thereto, in the same manner as if the defend-
ant had been brought before him upon a warrant of arrest, and the
same proceedings may be had thereon.

S 247. Duty of court on indictment.] When the indictment is for.
a felony, and the defendant, before the finditfg thereof, has given bail
for his appearance to answer the charge, the court, to which the indict-
ment is presented, or sent, or removed for trial, may order the defend-
ant to be committed to actual custody, either without bail, or unless
he give bail in an increased amount, to be specified in the order.

§ 248. Defendant present.] If the defendant is present when the
order is made, he must be forthwith committed accordingly. If he is
not present, a bench warrant must be issued and proceeded upon in
the manner provided in this chapter.

§ 249. Counsel before arraignment.] If the defendant appear for
arraignment, without counsel, he must be informed by the court that
it is his right to have counsel before being arraigned, and must be
asked if he desire the aid of counsel. If he desires, and is unable to
employ counsel, the court must assign counsel to defend him.

§ 250. How ARRAIGNMENT MADE.] The arraignment must be made
by the court, or by the clerk or district attorney, under its direction,
and consists in reading the indictment to the defendant, and asking
him whether he pleads guilty or not guilty to the indictment.

§ 251. True name.] When the detendant is arraigned, he must be
informed that if the name by which he is indicted be not his true
name, he must then declare his true name or be proceeded against by
the name in the indictment.

836 After Indictment. Crimuial Procedure.

§ 252. None given.] If he gives no other name", the court may pro-
ceed accordingly.

§ 253. Another given — to be entered.] If he allege that another
name is his true name, the court must direct an entry thereof in the
minutes of the arraignment, and the subsequent proceedings on the
indictment may be had against him by that nunie, refeiTing also to the
name by which he is indicted.

§ 254. Time to answer.] If, on the arraignment, the defendant
require it, he must be allowed until the next day, or such further time
may be allowed him as the court may deem reasonable, to answer the
indictment.

§ 255. Set aside — demur or plead.] If the defendant do not
require time, as provided in the last section, or if he do, then on the
next day, or at such further day as the court may have allowed him,
he may, in answer to the arraignment, either move the court to set
aside the indictment, or may demur or plead thereto.

CHAPTER IL

SETTING ASIDE THE INDICTMENT.

§ 256. Causes classified.] The indictment must be set aside by
the court in which the defendant is arraigned, and upon his motion,
in either of the following cases :

1. When it is not found, indoi*sed. and presented or filed, as pre-
scribed in this act;

2. When the names of the witnesses examined before the grand jury
are not inserted at the fpot of the indictment, or endorsed thereon; "

8. When a person is permitted to be present during the session of the
grand jury, while the charge embraced in the indictment is under con-
sideration, except as provided in section 195.

4. When the defendant had not been held to answer before the find-
ing of the indictment, on any ground which would have been good
ground for challenge, either to tne panel or to any individual grand
juror.

§ 257. Afterwards precluded.] If the motion to set aside the
indictment be not made, the defendant is precluded from afterwards
taking the objections mentioned in the last section.

§ 258. When j^iotion heard.] The motion must be heard at the
time it is made, unless for good cause the court postpone the hearing
to another time.

§ 259. Answer immediately.] If the motion be denied, the defend-
ant must immediatelj'' answer to the indictment either bjulemurring or
pleading thereto.

§ 260. When defendant discharged.] If the motion be granted,
the court must order that the defendant, if in custody, be discharged
therefrom, or if admitted to bail, that his bail be exonerated, or if he
have deposited money instead of bail, that the money be refunded to
him, unless it direct that the case be re-submitted to the same, or
another grand jury.

Criminal Procedure. After Indictment. 837

§ 261. Ee-8ubmis8ion.] If the court direct that the case be re-sub-
mitted, the defendants if already in custody, must so remain, unless he
be admitted to bail; or if already admitted to bail, or money have
been deposited instead thereof, the bail or money is answerable for
the appearance of the defendant to answer a new indictment, and
unless a new indictment is found before the next grand jury of the
county is discharged, the court must, on the discharge of such grand
jury, make the order prescribed by the preceding section.

§ 262. Not a bar.] An order to set aside an indictment, as pro-
vided in this chapter, is no bar to a further prosecution for the same
offense.

CHAPTER III.

DEMURRER.

§ 263. Defendant's pleading.] The only pleading on the part of
the defendant is either a demurrer or a plea.

§ 264. Made in open court.] Both the demurrer and the plea must
be put in open court, either at the time of the arraignment, or at such
other time as may be allowed to the defendant for that purpose.

§ 265. When may demur.] The defendant may demur to the indict-
ment when it appears upon the face thereof, either:

1. That the grand jury by which it was found had no legal author-
ity to inquire into the offense charged, by reason of its not being
within the legal jurisdiction of the county or subdivision.

2. That it does not substantially conform to the requirements of
this act.

3. That more than one offense is charged in the indictment.
' 4. That the facts stated do not constitute a public offense.

5. That the indictment contains any matter, which if true, would
constitute a legal justification, or excuse of the offense charged, or
other legal bar to the prosecution.

§ 266. Requisites of demurrer.] The demurrer must be in writ-
ing, signed either by the defendant, or his counsel, and filed. It must
distinctly specify the grounds of the objection to the indictment, or it
must be disregarded.

§ 267. Objections heard.] Upon the demurrer being filed, the
objections presented thereby, must be heard, either immediately or at
such time as the court may appoint.

§ 268. Judgment of court.] Upon considering the demurrer the
court must give judgment, either sustaining or overruling it, and an
order to that effect must be entered upon the minutes.

§269. Effect if sustained.] If the demurrer is sustained, the
judgment is final upon the indictment demurred to, and is a bar to
another prosecution for the same offense, unless the court being of
opinion that the objection on which the demurrer is sustained may be
avoided in a new indictment, direct the case to be re-submitted to the
same or another grand jury.

§ 270. Defendants discharged.] If the court do not direct the
case to be re-submitted, the defendant, if in custody, must be dis-

838 Aptee Indictment. Criminal Procedure.

charged, or if admitted to bail, his bail is exonerated, or if he have
deposited money instead of bail, the money must be refunded to hinoL

§ 271. Prooeedings if re-submitted.] If the court direct that the
case be submitted anew, the same proceeding must be had thereon
as are prescribed in this act, or in sections 259 and 260.

§ 272. Plea where demurrer is overruled.] If the demurrer be
overruled, the court must permit the defendant, at his election, to
plead, which he must do forthwith, or at such a time as the court may
allow. If he does not plead, judgment may be pronounced against
him.

§ 273. Certain objection — how taken.] When the objections
mentioned in section 265 appear upon the face of the indictment, they
can only be taken by demurrer, except that the objection to the juris-
diction of the court over the subject of the indictment, or that the
facts stated do not constitute a public offense, may be taken at the
trial, under the plea of not guilty, and in arrest of judgment.

CHAPTER IV.

PLEA.

274. Pleas classified.] There are three kinds of pleas to an
indictment. A plea of :

1. Guilty.

2. Not guilty. .

3. A former judgment of conviction or acq^uittal of the offense
charged, which may be pleaded either with or without the plea of not
guilty.

§ 275. Plea to be oral.] Every plea must be oral, and must be
entered upon the minutes of the court.

§ 276. Form op plea.] ♦ The plea must be entered in substantially
the following form:

1. If the defendant plead guilty:

The defendant pleads that he is guilty of the offense charged in this indictment.

2. If he plead not guilty:

The defendant pleads that he is not guilty of the offense charged in this Indictment.

3. If he plead a former conviction or acquittal:

The defendant pleads that he has already been convicted (or acquitted, as the case may be)

of the offense charged in this indictment, by the judgment of the court of (naming it)

rendered at , (naming the place) on the. . . .day of. . . .

§ 277. Requisites in plea of guilty.] A plea of guilty can in no
case be put in, except by the defendant himself, in open court, unless
upon an indictment against a corporation, in which case it can be put
in by counsel,

I 278. Plea may be withdrawn.] The court may, at any time
before judgment, upon a plea of guilty, permit it to be withdrawn, and
a plea of not guilty substituted.

§ 279. Issues on plea.] The plea of not guilty puts in issue every
material allegation in the indictment.

Criminal Procedure. Aftbe Indictment. 889

§ 280. Evidence under plea.] All matters of fact tending to
establish a defense other than that specified in the third subdivision of
section 274, may be given in evidence under the plea of not guilty.

§ 281. Former acquittal not op same offense.] If the defendant
was formerly acquitted on the ground of variance between the indict-
ment and the proof, or the indictment was dismissed upon an objec-
tion to its form or substance, or in order to hold the deiendant for a
higher offense, without a judgment of acquittal, it is not an acquittal
of the same offense.

§ 282. Same on merits.] When, however, he was acquitted on the
merits, he is deemed acquitted of the same offense, notwithstanding a
defeat in form or substance in the indictment on which he was
acquitted.

§ 283. Former acquittal or conviction.] When the defendant
«hall have been convicted or acquitted upon an indictment, the convic-
tion or acquittal is a bar to another indictment for the offense charged
in the former, or for an attempt to commit the same, or for an offense
necessarily included therein, of which he might have been convicted •
under that indictment.

§ 284. Refusal to plead.] If the defendant refuse to answer the
indictment by demurrer or plea, si plea of not guilty must be entered.

CHAPTER Y.

THE REMOVAL OF THE ACTION BEFORE TRIAL.

§ 285. Action removed — when — how.] A criminal action, pros-
ecuted by indictment, may, at any time before trial is begun, on the
application of the defendant, be removed from the court in which it is
pending, if the offense charged in the indictment be punishable with
death, or imprisonment in the territorial prison, wnenever it shall
appear to the satisfaction of the court by affidavits, or if the court
anould so order by other testimony, that a fair and impartial trial can-
not be had in such county or subdivision, in which case the court may
order the person accused to be tried in some near or adjoining county,
in any district where a fair and impartial trial can be had; but the
party accused shall be entitled to a removal of the action but once,
and no more, and if the accused shall make affidavit that he cannot
have an impartial trial, by reason of the bias or prejudice of the pre-
siding judge of the district court where the indictment is pending, the
judge of such court may call any other judge of a district court to
preside at such trial; and it shall be the duty of such other judge to so
preside at said trial, and do any other act with reference thereto, as
though he was presiding judge of said district court.

§ 286. Duty of clerk.] The order of removal must be entered
upon the minutes, and the clerk must thereupon make out and trans-
mit to the court to which the action is removed, a certified copy of the
order of removal, and of the records, pleadings, and proceedings in
the action, including the undertakings for tne appearance of the
defendant and of the witnesses.

840 After Indictment. Criminal Procedure:.

§ 287. Disposition op dependant.] If the defendant is in custody,
the order must provide for the removal of the defendant, by the sheriff
of the county or subdivision where he is imprisoned, to the custody of
the proper officer of the county or subdivision to which the action is
removed, and he must be removed according to the terms of sach
order.

§288. Court may require bail.] When the court has ordered a
removal of the action, it may reciuire the accused, if the offense be
then bailable, to enter into an undertaking with good and sufficient
sureties, to be approved by the court, in^ such sum as the court inay
direct, conditioned for his appearance in 'the court to which the action
has been removed, on the first day of the next term thereof, and to
abide the order of such court; and in default of such undertaking, a
warrant shall be issued to the sheriff or other proper officer, command-
ing him safely to keep, and at the proper time to convey the prisoner
to the jail of the county or subdivision where he is to be tried, there
to be safely kept by the jailer thereof until discharged by due course
of law.

§ 589. Witness recognized.] When a removal of the action is
allowed, the court may recognize the witnesses on the part of the
territory to appear before the court in which the defendant is to be
tried.

§ 290. Trial, records, and papers.] The court to which the action
is removed must proceed to trial and judgment therein the same in
all respects as if the action had been commenced in such court. If it
is necessary to have any of the original pleadings or other papers^
before such court, the court from which the action is removed must^
at any time, upon application of the district attorney or the defend-
ant, order such papers or pleadings to be transmitted by the clerk, a
certified copy thereof being retained.

§ 291. Removal by territory.] The district attorney on behalf of
the territory, may also apply in a similar manner for a removal of
the action, and the court being satisfied that it will promote the ends of
justice, may order such removal upon the same terms and to the same
extent as are provided in this chapter, and the proceedings on such
removal shall be in all respects as above provided.

CHAPTER VI.

the mode of trial.

§ 292. Issue of fact.] An issue of fact arises:

1. Upon a plea of not guilty; or,

2. Upon a plea of a former conviction or acquittal of the same
offense.

§ 293. How TRIED.] Issues of fact must be tried by a jury.

§ 294. Dependant to be present.] If the indictment is for a felony,
the defendant must be personally present at the trial, but if for a
misdemeanor or not punishable by imprisonment, the trial may be
had in the absence of the defendant; if, however, his presence is

Criminal Procedure. After Indictment. 841

necessary for the purpose of identification, the court may, upon
application of the district attorney, by an order or waiTant, require
the personal attendance of the defendant at the trial.

CHAPTER Vll.

FORMATION OF THE TRIAL JURY.

§ 295. Who are jurors.] The jurors duly drawn and summoned
for the trial of civil actions, are also the jurors for the trial of crimi-
nal actions.

§ 296. Trial juries formed.] Trial juries for criminal actions may
also be formed in the same manner as trial juries in civil actions.

§ 297. Clerk to prepare ballots.] At the opening of the court
the clerk must prepare separate ballots containing the names of the
persons returned as jurors, which must be folded as nearly alike as
possible, and so that the names cannot be seen, and must deposit them
in a sufficient box.

§ 298. Names of all may be called.] When the case is called for
trial, and before drawing the jury, either party may require the names
of all the jurors in the panel to be called, and the court in its discre-
tion may order that an attachment issue against those who are absent,,
but the court may, in its discretion, wait or not, for the return of the
attachment.

§ 299. Manner of drawing jury.] Before the name of any -juror
is drawn, the box must be closed and shaken, so as to intermingle the
ballot's therein. The clerk must then, without looking at the ballots,,
draw them from the box.

§ 300. Disposition of ballots.] When the jury is completed, the
ballots containing the names of the jurors sworn, must be laid aside
and kept apart irom the ballots containing the names of the other
jurors, until the jury so sworn is discharged.

§ 301. Same.] After the jury are so discharged, the ballots contain-
ing their names must be aeain folded and returned to the box, and so
on, as often as a trial is had.

§ 302. -When juror absent.] If a juror be absent when his name
is drawn, or be set aside, or excused from serving on the trial, the
ballot containing his name must be folded and returned to the box b»
soon as the jury is sworn.

§ 303. If all do not appear.] When a jury has been duly sum-
moned, if, upon calling the cause for trial, twenty-four of the jurors
summoned do not appear, the court may, in its discretion, order the
sheriflF to summon from the body of the county or subdivision, as
many persons as it may think proper, at least sufficient to make
twenty-four jurors, from whom a jury for the trial of the cause may
be selected.

§ 304. Names put in box.] The names of the persons summoned
to complete the jury must be written on distinct pieces of paper,
folded each as nearly alike as possible, and so that the name cannot
be seen, and must be deposited in the box mentioned in section 297.

842 After Indictment. Criminal Procedure.

§ 305. Drawing the jury.] The clerk must thereupon, under the
•direction of the court, publicly draw out of the box so many of the
ballots, one after another, as are sufficient to form the jury.

§ 306. Number op jury — how sworn.] The jury consists of twelve
men, chosen as prescribed by law, and sworn or affirmecj well and truly
to try and true deliverance to make between tlie Territory of Dakota
and the defendant whom they shall have in charge, and a true verdict
to give according to the evidence, which verdict must be unanimous.

§ 307. If number pails.] If a sufficient number cannot be
obtained from the box to form a jury, the court may, as often as is
neccessary, order the sheriff to summon from the body of the county or
subdivision, so many persons qualified to serve as jurors as it deems
sufficient to form a jury. The jurors so summoned may be called
from the list returned by the sheriff, and so many of them not excused
or discharged, as may be necessary to complete the jury, must be
impaneled and sworn.

§ 308. Appirmation.] Any juror who is conscientiously scrupulous
of taking the oath above described, shall be allowed to make affirm-
ation, substituting for the words " So help you God," at the end of the
oath, the following: "This you do affirm under the pains and penalties
of perjury."

CHAPTEE YIII.

postponement of the trial.

§ 309. For cause by either.] When an indictment is called for
trial, or at any time previous thereto, the court mav, upon sufficient
cause by either party, direct the trial to be postponed to another day
in the same or next term.

Criminal Procedure, The Trial. * 843

TITLE VIIL

OF PROCEEDING AFTER THE GOMMENCEMENT OF THE TRIAL AND BEFORE

JUDGMENT.

Chapter I. Challenging the jury.

II. The trial

III. Conduct of the jury after the cause is submit-

ted to them.

IV. The verdict.

V. Bill of exception.

VI. New trials.

VII. Arrest of judgment.

CHAPTER I.

CHALLENGING THE JURY.

§ 310. Challenges classed.] A challenge is an objection made to
the trial jurors, and is of two kinds:

1. To the panel.

2. To an individual juror.

§311. Several DEFENDANTS.] When several defendants are tried
together they cannot sever their challenges, but must join therein.

§ 312. Panel defined.] The panel is a list of jurors returned by a
sheriff, to serve at a particular court, or for the trial of a particular
action.

§^13. Challenge to panel.] A challenge to the panel is an
objection made to all the trial jurors returned, and may be taken by
either part3^

§ 314. Cause for.] A challenge to the panel can be founded only
on a material departure from the forms prescribed by law in
respect to the drawing and return of the jury, or on the intentional
omission of the sheriff* to summon one or more of the jurors
drawn.

§ 315. When taken.] A challenge to the panel must be taken
before a juror is sworn, and must be in writing, specifying plainly
and distinctly the facts constituting the ground of challenge.

§ 316. Issue on the challenge.] If the sufficiency of the facts
alleged as a ground of challenge be denied, the adverse party may
except to the challenge. The exception need not be in writing, but
must be entered upon the minutes of the court, and thereupon the
court must proceed to try the suflRciency of the challenge, assuming
the facts alleged therein to be true.

§ 317. Proceedings on exoeption.] If, on the exception, the
court deem the challenge sufficient, it may, if justice require it,

844 The Trial. Criminal Procedure.

permit the Darty excepting to withdraw his exception, and to deny
the facts alleged in the challenge. If the exception be allow^ed
the court may, in like manner, permit an amendment of the
challenge.

§ 318. When challenge is denied.] If the challenge is denied, tlie
denial may, in like manner, be oral, and must be entered upon the.
minutes oi the court, and the court must proceed to try the question
of fact.

§ 319. Trial of challenge.] Upon the trial of the challenge,
the officers, whether judicial or ministerial, whose irregularity is
complained of, as well as any other persons, may be examined to
prove or disprove the facts alleged as the ground of the challenge.

§ 320. Bias of officer.] When the panel is formed from persons
whose names are not drawn as jurors, a challenge may be taken to
the panel on account of any bias of the officer who summoned them,
which would be good ground of challenge to a luror. Such challenge
must be made in the same form, and determined in the same manner
as if made to a juror.

§ 321. DiscHAROE OF JURY.] If, upou an exception to the challenge,
or a denial of the facts, the challenge be allowed, the court must <fis-
charge the jury, and another jury can be summoned for the same
term forthwith, from the body of the county or subdivision; or the
judge may order a lury to be drawn and summoned in the regular
manner. If it be disallowed, the court must direct the jury to be
impaneled.

§ 322. Challenging individual jurors.] Before a juror is called,
the defendant must be informed by the court, or under its direction,
that if he intend to challenge an individual juror, he must do so when
the juror appears, and before he is sworn.

§ 323. Nature of challenge.] A. challenge to an individual juror
is either:

1. Peremptory; or,

2. For cause.

§ 324. Taken before sworn.] It must be taken when the juror
appears, and before he is sworn, but the court may, for good cause^
permit it to be taken after the juror is sworn, and before the jury is
completed.

§ 325. Peremptory challenge.] A peremptory challenge can be
taken by either party, and may be oral. It is an objection to a juror
for which no reason need be given, but upon which the court must
exclude him.

§ 326. Defendant's challenge.] In all criminal cases the defend-
ant is entitled to the following challenges:

1. For capital offenses the defendant may challenge peremptorily
twenty jurors.

2. In prosecutions for offenses punishable by imprisonment in the
territorial prison, ten jurors.

3. In other prosecutions, three jurors.

§ 327. Prosecutor's challenges.] The prosecuting attorney in
capital cases may challenge peremptorily six jurors; in other cases,
three jurors.

Criminal Procedure, The Tbial. 845

§ 328. Challenge fob cause.] A challenge for cause may be taken
either by the territory or the defendant.

§ 329. Fob cause classed.] It is an objection to a particular
juror, and is either:

1. General, that the juror is disqualified from serving in any case
on trial; or,

2. Particular, that he is disqualified from serving in the case on trial.
330. Classes OF GENEBAL.] General causes of challenges are:

A conviction for felony.

2. A want of any of the qualifications prescribed by law, to render
a person a competent juror, including a want of knowledge of the
English language as used in the courts.

3. Unsoundness of mind, or such defect in the faculties of the mind
or organs of the body as renders him incapable Of performing the
duties of a juror.

§ 331. Pabticulab cause.] Particular causes of challenges are of
two kinds:

1. For such a biasas when the existence of the facts is ascertained,
in judgment of law disqualifies the juror, and which is known in this
code as implied bias.

2. For the existence of a state of mind on the part of the juror, in
reference to the case, or to either party, which satisfies the court, in
the exercise of a sound discretion, that he cannot try the issue impar-
tially, without prejudice to the* substantial rights of the party chal-
lenging, and which is known in this code as actual bias.

§ 332. Fob implied bias.] A challenge for implied bias may be
taken for all or any of the lollowing causes, and for no other:

1. Consanguinity or aflSnity within the sixth decree, inclusive, to the
I)erson alleged to be injured by the offense charger, or on whose com;
plaint the prosecution was instituted, or to the defendant.

2. Standing in the relation of guardian and ward, attorney and
client, master and servant, or landlord and tenant, or being a member
of the family of the defendant, or of the person alleged to be injured
by the offense charged, or on whose complaint tlfe prosecution was
instituted, or in his employment on wages.

3. Being a party adverse to the defendant in a civil action, or hav-
ing complained against, or been accused by him in a criminal
prosecution.

4. Having served on the grand jury which found the indictment, or
on a coroner's jury which inquired into the death of a person whose
death is the subject of the indictment.

5. Having served on a trial jury which has tried another person for
the offense charged in the indictment.

6. Having been one of a jury formerly sworn to try the indictment,
and whose verdict was set aside, or which was discharged without a
verdict, after the cause was submitted to it.

7. Having served as a juror in a civil action brought against the
defendant for the act charged as an offense.

8. If the offense charged be punishable with death, the entertaining
of such conscientious opinions as would preclude his finding the
defendant guilty, in which case he shall neither be permitted nor
compelled to serve as a juror.

846 The Trial. Criminal Procedure.

§ 333. Not cause, but privilege.] An exemption from service on
a jury is not a cause of challenge, but the privilege of the person
exempted.

§ 334. Causes stated on challenge - -opinion.] In a challenge for
implied bias, one or more of the causes stated in section 332 must be
alleged. In a challenge for actual bias, the cause stated in the second
subdivision of section 331 must be alleged; but no person shall be
disqualified as a juror by reason of having formed or expressed an
opinion upon the matter or cause to be submitted to said jury, founded
upon rumor, statements in public journals, or common notoriety, pro-
vided it appears to the court, upon his declaration, under oath or other-
wise, that ne can and will, notwithstanding such an opinion, act
impartially and fairly upon the matters to be submitted to him. The
challenge may be oral, but must be entered upon the minutes of the
court.

§ 335. Exception to challenge.] The adverse party may except
to the challenge in the same manner as to a challenge to the panel,
and the same proceedings must be had thereon as prescribed in section
316, except that if the exception be allowed the juror must be excluded.
The adverse party may also orally deny the facts alleged as the ground
of challenge.

8 336. How tried.] All challenges, whether to the j^anel or to
individual jurors, shall be tried by the court, without the aid of triers.

§ 337. Juror challenged a witness.] Upon the trial of a challenge
to an individual juror, the juror challenged may be examined as a
witness to prove or disprove the challenge, and is bound to answer
eveiy question pertinent to the inquiry therein.

§ 338. Other witnesses.] Other witnesses may also be examined
on either side, and the rules of evidence applicable to the trial of
other issues, govern the admission or exclusion of testimony, on the
trial of the challenge.

S 339. Duty of court.] On the trial of a challenge, the court must
either allow or disallow the challenge, and direct an entry accord-
ingly upon the minutes.

§ 340. Order op taking.] All challenges to an individual juror,
except peremptory, must be taken, first by the defendant, and then by
the territory, and each party must exhaust all his challenges before
the other begins.

§ 341. Order of challenges for cause.] The challenges of either
party for cause need not all be taken at once, but they must be taken
separately, in the following order, including in each challenge all the
causes of challenge belonging to the same class:

1. To the panel.

2. To an individual pror for a general disqualification.

3. To an individual juror for implied bias.

4. To an individual juror for actual bias.

§ 342. Peremptory challenges.] If all challenges on both sides
are disallowed, either party, first the territory and then the defendant,
may take a peremptory challenge, unless the party's peremptory chal-
lenges are exhausted.

Criminal Procedure. The Tbial. 847

CHAPTER 11.

THE TRIAL.

§ 343. Order of trial.] The jury having been impaneled and
sworn, the trial must proceed in the following order:

1. If the indictment is for felony, the clerk or district attorney must
read it, and state the plea of the (defendant to the jury. In all other
cases, this formality may be dispensed with.

2. The district attorney, or other counsel for the territory, must open
the case and offer the evidence in support of the indictment.

3. The defendant or his counsel may then open his defense, and offer
his evidence in support thereof.

4. The parties may then, respectively, offer rebutting testimony
only, unless the court, for good reason, in furtherance of justice, or to
correct an evident oversight permit them to offer evidence upon their
original case.

5. When the evidence is concluded, unless the case is submitted to
the jury on either side, or on both sides, without argument, the coun-
sel for the territory shall commence, and the defendant or his counsel
shall follow, then the counsel for the territory shall conclude the argu-
ment to the jury. ^ t

6. The juage must then charge the jury; he may state the testi-
mony, and must declare the law, but must not charge the jury in
respect to matters of fact; such charge must, if so requested, be
reduced to writing before it.is given, unless by tacit or mutual conseni^
it is given orally, or unless it is fully taken down at the time it is
given by a stenographic reporter, appointed by the court.

§ 344« Order mat be ghanj&bd.] When the state of the pleadings
requires it, or in any other case, for good reasons, and in the sound
discretion of the court, the order of trial and argument prescribed in
the last section may be departed from.

§ 345. Court to dbgidb law.) The court must decide all questions
of law which arise in the course of the trial.

§ 846. Jury dbterminb law and pact.] On the trial of an indict-
ment for libel, the jury have the right to determine the law and the
fact.

§ 347. When only fact.] On the trial of an indictment for any
other offense than libel, questions of law are to be decided by the
court, and questions of fact are to be decided by the iury; and,
although the jury have the power to find a general verdict, which
includes questions of law as well as of fact, they are bound, neverthe-^
less, to receive as law what is laid down as such by the court.

§ 348. Restriction of argument.] If the indictment is for an
offense punishable with death, three counsel on each side may argue
the case to the jury. If it is for any other offense, the court may, in
its discretion, restrict the argument to one counsel on each side.

§ 349. Presumed innocent:] A defendant in a criminal action is
presumed to be innocent until the contrary is proved, and in case of
a reasonable doubt as to whether his guilt is satisfactorily shown, he
is entitled to be acquitted.

848 The Trial. Crimhial Procedure.

§ 350. Doubt as to degree.] When it appears that a defendant
has committed a public oflfense, and there is reasonable ground of
doubt in which of two or more degrees he is guilty, he can be con-
victed of the lowest of such degrees only.

§ 351. Defendants tried separately.] When two or more
defendants are jointly indicted for a felony, any defendant requiring
it must be tried separately. In other cases defendants jointly prose-
cuted may be tried separately or jointly in the discretion of the court

§ 352. Discharge of defendant^ as witness.] When two or more
persons are included in the same indictment, the court may, at any
time before the defendants have gone into their defense, on the appli-
cation of the district attorney, direct any defendant to be discharged
from the indictment, that he may be a witness for the territory.
^ § 353. Same — duty of court.] When two or more persons are
included in the same indictment, and the court is of opinion that in
regard to a particular defendant there is not sufficient evidence to put
him on his defense, it must, before the evidence is closed in order that
he may be a witness for his co-defendant, submit its said opinion to
the jury, who. if they so find, may acquit the particular defendant for
the purpose aforesaid.

§ 354. Rules op evidence.) The rules of evidence in civil cases
are applicable also to criminal cases, except as otherwise provided in
this code. tAk* \t tL. o^l 9

§ 355. To gonvtct of conspiracy.] Upon- a trial for conspiracy, in a
case where an overt act is necessary to constitute the offense, the de-
fendant cannot be convicted, unless one or more overt acts be expressly
alleged in the indictment, nor unless one or more of the acts alleged
be proved, but any other overt act hot alleged in the indictment^ may
be given in evidence.

§ 856. Same^ — ACCOMPLICE.] A conviction cannot be had upon the
testimony of an accomplice unless he be corroborated by such other
evidence as tends to connect the defendant with the commission of
the offense, and the corroboration is not sufficient if it merely show
the commission of the offense, or the circumstances thereof.

§ 357. Evidence of false pretense.] Upon atrial for having, with
an intent to cheat or defraud another designedly by any false pretense,
obtained the signature of any person to a wuitten instrument, or hav-
inff obtained from any person any riioney, personal property, or
valuable thing, the defendant cannot be convicted if the false pretense
was expressed in language unaccompanied by a false token or writing
unless the pretense, or some note or memorandum thereof, be in wrifc-
inff, either subscribed by, or in the handwriting of the defendant, or
unless the pretense be proven by the testimony of two witnesses, or
that of one witness and corrolx)rating circumstances. But this section
does not apply to a prosecution for falsely representing or personating
another, and in such assumed character, manying, or receiving money
or property.

§ 358. Evidence op seduction.] Upon a trial for inveiffUng,
enticing, or taking away an unmarried female of previous chaste
character, under the age of twenty-five years, for the purpose of pros-
titution, or aiding or assisting therein, or for having, under promise of
marriage, seduced and had illict connection with an unmarried female

Criminal Procedure. The Trial. 849

of previous chaste character, the defendant cannot be convicted upon
the testimony of the person injured unless she is corroborated by
other evidence tending to connect the defendant with the commission
of the oflfense.

g 359. CouBT MAY SUSPEND PBOCEEDiNos.] If it appear by the
testimony that the facts proved constitute an oflfense of a higher
nature than that charged in the indictment, the court may direct the
jury to be discharged, and all proceedings on the indictment to be sus-
pended, and may order the defendant to be committed or continued on,
or admitted to bail to answer any new indictment which may be
found against him for the higher oflfense.

% 860. Same not fobxsb agquittal.J If an indictment for the
higher oflfense is found by a grand jury impaneled within a year next
thereafter, he must be tried thereon, and a plea of former acquittal to
such last found indictment is not sustained by the fact or the dis-
charge of the jury on the first indictment.

§ 361. Original indictment.] If a new indictment is not found for
the higher oflfense within a year, as aforesaid, the Court must again
proceed to try the defendant on the original indictment.

§ 962. Jury mat be discharged.] The court may direct the jury
to be discharged, where it appears that it has not jurisdiction of the
offense, or that the facts as charged in the indictment do not con-
stitute an offense punishable by law.

§ 363. Disposition of prisoner.] If the jury is discharged because
the court has not jurisdiction of the offense charged in the indictment,
and it appears that it was committed out of the jurisdiction of this
territory, the court may order the defendant to be discharged, or to be
detained for a reasonable time si>ecified in the order, until a com-
munication can be sent by the district attorney to the chief executive
oflBcer of the state, territory, or district where the offense was com-
mitted«

§ 364. Same — bail and records.] If the offense was committed
within the exclusive jurisdiction of another county of this territory,
the court must direct the defendant to be committed for such time as
it deems reasonable to await a warrant from the proper county for his
arresi^ or if the offense be a misdemeanor only, it may admit him to
bail in an undertaking, with sufficient sureties that he will, within
such time as the court may appoint, render himself amenable to a
warrant for his arrest from the proper county, and if not sooner
arrested thereon, will attend at the office of the sheriff of the county
where the trial was had, at a time particularly specified in the under-
takiog, to rarrender himself upon the warrant, if issued, or that his
bail will forfeit such sum as the court may fix, and to be mentioned in
the undertaking, and the clerk must forthwith transmit a certified
copy of the indictment, and all the papers in the action, filed with him,
to the district attorney of the proper county, the expense of which
transmission is chai^eable to that counl^.

I 36&. When prisoner discharged.] If the defendant is not
anrested on a warrant from the proper county, he must be discharged
from custody, or his bail in the action be exonerated, or money
deposited instead of bail refunded, as the case may be, and the sure-

54

850 The Trial. Criminal Procedure.

ties in the undertaking, as mentioned in the last section, must be dis-
charged.

§ 366. Proceedings if defendant arrested.] If he is arrested, the
same proceedings must be had thereon as upon the arrest of a defend •
ant in another county, on a warrant of arrest issued by a magis-
trate.

§ 367. Court must discharge prisoner.] If the jury be discharged
because the facts as charged do not constitute an offense punishable
by law, the court must order that the defendant, if in custody, be dis-
charged therefrom, or if admitted to bail that his bail be exonerated,
or if ne have deposited money instead of bail, that the money depos-
ited be refundea to him, unless in its opinion a. new indictment can be
framed, upon which the defendant can be legally convicted, in which
case it may direct that the case be re-subiAitted to the same or another
grand jury.

§ 368. May advise jury to acquit.] If, at any time after the evi-
dence on either side is closed, the court deem it insufficient to wanfant
a conviction, it may advise the court to acquit the defendant. But the
jury are not bound by the advice, nor can the court, for any cause,
prevent the jury from giving a verdict.

I 369. Jury may view place.] ^ When, in the opinion of the court,
it IS proper that the jury should view the place in which the offense
was charged to have been committed, or in which any other material
fact occurred, it may order the jury to be conducted in a
body, in the -custody of proper of officers, to the place which must be
shown to them by a person appointed by the court for that purpose, and
the officers must be sworn to suffer no person to speak or communicate
with the jury, nor to do so themselves, on any subject connected with
the trial, and to return them into court without unnecessary delay, or
at a specified time.

§ 370. Must be declared in court.] If a juror have any personal
knowledge respecting a fact in controversy in a cause, he must
declare it in open court during the trial. If, during the retirement of
a jury, a juror declare a fact, which could be evidence in the cause, as
of his own knowledge, the jury must return into court. In either of
these cases, the juror making the statement ihust be sworn as a
witness and examined in the presence of the parties.

§ 371. Custody and conduct op jury.] The jurors sworn to try
an indictment, may, at any time betbre the submission of the cause to
the jury, in the discretion of the court, be permitted to separate, or to
be kept in charge of proper officers. The officers must be sworn
to keep the jurors together until the next meeting of the court, to
suffer no person to speak or communicate with tnem, nor to do so
themselves, on any subject connected with the trial, and to retom
• them into court at the next meeting thereof

I 372. Jury ADMONISHED by court.] The jury must also, at each
adjournment of the court, whether permitted to separate or kept in
charge of officers, be admonished by the court that it is their duty
not to converse among themselves or with any one Olse on any subject
cdnnected with the trial, or to form or expresis any opinion thereon,
until the case is finally submitted to them.

Crimifial Procedure, The Trial. 851

§ 373. When juror becomes sick.] If, before the conclusion of a
trial a juror become sick, so as to be unable to perform his duty, the
•court may order him to be discharged. In that case a new juror may
"be sw^orn, and the trial begin anew, or the iury may be discharged,
and a new jury then or afterwards impanelea.

§ 374. Murder — burden of proof.] Upon a trial for murder, the
commission of the homicide by the defendant being proved, the
"burden of proving circumstances of mitigation, or that justify or
•excuse it, devolves upon him, unless the proof on the part of the
prosecution tends to show that the crime committed only amounts to
manslaughter, or that the defendant was justifiable or excusable.

§ 875. Bigamy— proof on trial.] Upon a trial for bigamy, it is not
necessary to prove either of the marriages by the register, certificate,
or other record evidence thereof, bnt the same may w proved by such
evidence as is admissible to prove a marriage in other cases, and when
the second marriage took place out of this territory, ^roof of that
fact> accompanied with proof of cohabitation thereafter in this terri-
tory, is sufficient to sustain the charge.

§ 376. FoBosBT — SAME.} Upoii a trial for forging any bill or note
purporting to be the bill or note of an incorporated company or
bauK, or lor passing, or attempting to pass, or navii^ in possession
with intent to pass any such forged bill or note, it is not neces^ry to
prove the incorporation of such bank or company by the charter or
act of incorporation, but it may be proved by general reputation, and
persons of sfciU are competent witnesses to prove that such bill or
note is forged or counterfeited.

§ 377. fisQuisiTEs OF court's oHABas.] In chai^ng the jury, the
<;ourt must state to them all matters of law which it i&nks necessary
for their information in giving their verdict, and if it state the testi-
mony of the case, it must in addition inibrm the jury that they are
the exclusive judges of all questions of £8cct. Either party may pre-
sent to the court any written chai^^ Si^nd request that it be given. If
the court thinks it correct and pertinent, it must be given, if not, it
must be refused. Upon each charge presented^ and given or refused, the
court niust indorse or sign its decision. If part of any written
•oharge be given and part refused, the court must distinguish, showing
by the indorsement or answer what part of each charge was given,
and what part refused.

§ 378. JuB7 AFTBR OHAR0B.} After hearing the charge, the jury
may dther decide in court, or may retire for deliberation. If they do
not agree without retiring, one or moi^ officers inust be sworn, to
keep them together in sonje private and convenient place, without
food or drink, except bread and water, unless otherwise ordered by the
•court, and not to permit any person to speak to or communicato with
them, nor do so themselves, unless it Se by order of the court, or
to a^ ib&m whether tiiey have agreed upon a verdict, and to return
them into court when they have so agreed, :or when ordered by the
court.

§ 879. Dependant may m oohmittbiI.] When a defendant, who
has given bail, appeal's for trial, the court may, in its discretion, at
any time after his appearance for trial, order him to be committed to
the custody of the proper officer of the county, to abide the judgment

852 , The Trial. Criminal Procedure^

or further order of the court, and he must be committed and h^d in
custody accordingly.

§ 380. Substitute for district attorney.] If the district attorney
fails, or is unable to attend at the trial, the court must appoint some
attorney at law to perform the duties of the district attorney on sach
trial.

CHAPTER III.

CONDUCT OP THE JURY AFTER THE CAUSE 18 SUBMITTED TO THEM.

§ 381. Jury room.] A room must be provided by the board of com-
missioners of the county, for the use of the jury, upon their retire-
ment for deliberation, with suitable furniture, fuel, lights, and
stationery. If the commissioners neglect, the court may order the
sheriff to do so, and the expenses incurred by him in carrying the
order into effect, when certined by the court, are a county charge.

§ 882. Food and lodging.] While the jury are kept together, either
during the progress of the trial or after their retirement for delibera-
tioiL tney must be provided by the sherifl^ upon the order of the eourty
at tne expense of the county, with suitable and sufficient food and
lodging.

§ 883. Papers jury take.] Upon retiring for deliberation, the jury
may take with them all papers which have been received as evidence
in ttie cause, or copies of such parts of public records or private docu-
ments, given in evidence, as ought not, m the opinion of the court, to
be taken :&om the person having them in possession.

§884. Jury may be brought into court.] After the jury have
retired for deliberation, if there be a disa^eement between them as to
any part of the testimony, or if they desire to be informed on a point
of law arising in the cause, they must require the officer to conduct
them into court. Upon their being brought into court, the informa*
tion required must be given in the presence of, or afber notice to tiie
district attorney, and the defendant, or his counsel, or after they have
been called.

§ 385. Juror sick.] If, after the retirement of the jury, one of
them become so sick as to prevent the continuance of his duty, or any
other accident or cause occur to prevent their being kept together for
deliberation, the jury may be discharged.

§ S86. Cannot be discharged until.] Except as provided in the
last section, the }urv cannot be discharged after the cause is submitted
to them until they have agreed upon their verdict, and rendered it in
open court, unless by tiie consent of both parties, entered upon the
minutes^ or unless at the expiration of such time as the court deems
proper, it satisfactorily appear that there ^ no reasonable probability
that the jury can agree.

§ 387. Cause retried.] In all cases where a jury are discharged, or
prevented from giving a veidict, by reason of an accident or other
cause, except where the defendant is discharged from the indictment
during the progress of the trial, or after tne cause is submitted to

driminal Procedure. The Trial. 853

•

-fchem, the cause may be again tried at the same or another term, as
the court may direct.

§ 388. Adjournment while jury absent.] While the jury are
absent the court may adjourn, from time to time, as to other business,
but it is nevertheless deemed open for every purpose connected with
tibe cause submitted to them, until a verdict is rendered or the jury
•discharged.

§ 389. Discharge of jury.] A final adjournment of the court dis-
charges the jury.

CHAPTEE IV.

the verdict.

§ 390. Return of verdict.] When the jury have agreed upon their
yerdict, they must be conducted into court by the officer having them
in charge. Their names must then be called, and if all do not appear,
i>he rest must be discharged without giving a verdict. In that case the
«ause must be again tried, at the same or another term.

§ 391. Verdict in presence of defendant.] If the indictment is
for a felony the defendant must, before the verdict is received, appear
in person. If it is for a misdemeanor, the verdict may, in the dis-
<5retion of the courts be rendered in his absence.

§ 392. Proceedings when jury appear.] When the jury appear,
they must be asked, by thq court or the clerk, whether they nave
aj^eed upon their verdict, and if the foreman answers in the affirma-
tive, they must, on being required, declare the same.

§ 393. Verdict.] The jury may either render a general verdict,
or where they are in doubt as to the legal effect of the facts
proved, they may, except upon an indictment for libel, find a special
verdict.

§ 394. Fork of general verdict.] A general verdict upon a plea
of not guilty, is either "guilty," or "not guilty," which imports a con-
viction or acquittal of the offense charged in the indictment. Upon a
plea of a former conviction' or acquittal of the same offense, it is
•either "for the territory," or "for the defendant." When the defendant
is acquitted on the ground that he was insane at the time of the commis-
sion of the act charged, the verdict must be "not guilty by reason of
insanity." When the defendant is acquitted on the ground of variance
between the indictment and the proof, the verdict must be "not
guilty by reason of variance between indictment and proof."

§ 395. Special verdict.] A sjjecial verdict is that by which the jury
find the facts only, leaving the judgment to the court. It must pre-
sent the conclusions of fact, as established by the evidence and not the
•evidence to prove them, and the conclusions of fact must be so pre-
sented as that nothing remains to the court but to draw conclusions of
law upon them.

§ 396. Special verdict to be written.] The special verdict must
be reduced to writing by the jury, or in their presence entered upon

854 The Trial. Criminal Procedufe^

the minutes of the court, read to the jury, and agreed to by them
before they are discharged.

§ 397. FouM OF SPECIAL VERDICT.] The special verdict need not
be in any particular form, but is sufficient if it presents intelligibly th^
facts found by the jury.

§ 398. Argument of special verdict.] The special verdict niay be
brought to argument by either party, upon two days' notice to the
other, at the same or another term of the court.

§ 399. Judgment upon special verdict.] The court must give judg-
ment upon the special verdict as follows:

1. If the plea is not guilty, and the facts prove the defendant guilty
of the offense charged in the indictment, or of any other offense of
which he could be convicted under the indictment, judgment must be
given accordingly, but if otherwise, judgment of acquittal must be
given.

2. If the plea is a former conviction or acquittal of the same
offense, the court must give judgment of conviction or acq^uittal,
according as the facts prove or fail to prove the fonner conviction or
acquittal.

§ 400. New trial.] If the jury do not, in a special verdict, pro-
nounce affirmatively or negatively on the facts necessary to enable the
court to give judgment, or if they find the evidence of facts merely,
and not the conclusions of fact from the evidence, as established to
their satisfaction, the court must order a new trial.

§ 401. Degree must be found.] Whenever a crime is distinguished
into degrees, the jury, if they convict the defendant, must find the
degree of the crime of which he is guilty.

§402. May FIND ANY degree.] The juiry may find the defendant
guilty of any offense, the commission of which is necessarily included
m that with which he is charged in the indictment, or of an attempt
to commit the offense.

§ 403. Same — several defendants.] On an indictment against
several, if the jury cannot agree upon a verdict as to all, they may
render a verdict as to those in regard to whom they do agree, on which
a judgment must be entered accordingly, and the case as to the rest
may be tried by another jury.

§ 404. Jury reconsider verdict.] When there is a verdict of con-
viction in which it appeal's to the court that the jury have mistaken
the law, the court may exj)lain the reason for that opinion, and direct
the jury to reconsider their verdict, and if, after the reconsideration,
they return the same verdict, it must be entered. But when there is
a verdict of acquittal, the court cannot require the jury to recon-
sider it.

§ 405. Same.] If the jury render a verdict which is neither a
general nor a special verdict, the court may, with proper instructions
as to the law, direct them to reconsider it, and it cannot be recorded
until it be rendered in some form from which it can be clearly under-
stood what is the intent of the jury, whether to render a general
verdict, or to find the facts specially, and to leave the judgment to
the court.

§ 406. Judgment if jury persist.] If the jury persist in finding
an informal verdict, from which, however, it can be clearly under-

•

Crifnifial Procedure. The Trial. 855

stood that their intention is to find in favor of the defendant upon
the issue, it must be entered in the. terms in which it is found, and
the court must give judgment of acquittal. But no judgment of
conviction can be given unless the jury expressly find against the
defendant, upon the issue, or judgment be given against him on a
special verdict.

§ 407. . JuEY MAY BE POLLED.] Whou a vordict is rendered, and
before it is recorded, the jury may be polled on the requirement of
either party, in which case they* must be severally asked whether it is
their verdict, and if any one answer in the negative, the jury miist be
sent out for further deliberation.

§ 408. Clerk to record verdict.] When the verdict is given, and
is such as the court may receive, the clerk must immediately record
it in full upon the minutes, and must read it to the jury and inquire
of them whether it is their verdict. If any juror disagree, the fact
must be entered upon the minutes, and the jury again sent out; but
if no disagreement is expressed, the verdict is complete, and the
jury must be discharged from the case.

§ 409. When defendant to be discharged.1 If the judgment of
acquittal is given on a general verdict, and the deiendant is not detained
for any other legal c^use, he must be discharged as soon as judgment
is given, except that when tlje acquittal is for a variance between
the proof and the indictment, which may be obviated by a new
indictment, the court may order his detention to the end that a new
indictment may be preferred in the same manner and with like effect,
as provided in 367.

§ 410, Committal of defendant.] If a general verdict is rendered
against the defendant, or a special verdict is given, he must be
remanded, if in custody, or if on bail, he may be committed to the
proper oflScer of the county, to await the judgment of the court upon
the verdict. When committed his bail is exonerated, or if money is
deposited instead of bail, it must be refunded to the defendant.

§ 411. Defense insanity, and jury acquits.] If the defense is 'the
insanity of the defendant, the j ury must be instructed, if they acquit
him on that ground, to state the fact with their verdict. The court
may thereupon, if the defendant is in custody, and they deem his dis-
charge dangerous to the public peace or safety, order him to be
committed to the care of the sherin until he becomes sane.

CHAPTER V.

BILLS OF EXCEPTION'.

§ 412. Exceptions to matters of law.1 On the trial of an indict-
ment, exceptions may be taken by the deiendant to the decision of the
court upon a matter of law by which his substantial rights are
prejudiced, and not otherwise, in any of the following cases:

1. In disallowing a challenge to the panel of the jury, or to an indi-
vidual juror for implied bias.

856 The Trial. Criminal Procedure.

2. In admitting or rejectinff witnesses or testimony, on the trial of a
challenge to a juror for actual bias.

3. In admitting or rejecting witnesses or testimony, or in deciding
any question of law, not a matter of discretion, or in charging or
instructing the jury upon the law, on the trial of the issue,

§ 413. Bill signed and filed.] A bill containing the exceptions
must be settled and signed by the presiding judge, and filed with the
clerk.

§ 414. Character op bill op exceptions.] The bill of exceptions
must be settled at the trial, unless the court otherwise direct. If no
such direction be given, the point of the exception must be particularly
stated in writing, and delivered to the court, and must immediately
be corrected or added, until it is made comformable to the truth.

§ 415. When prepared if not settled at trial.] If the bill of
exceptions be not settled at the trial, it must be prepared and served,
within three days thereafter, on the district attorney, who may, within
three days thereafter, serve on the defendant, or his counsel, amend-
ments thereto. The defendant may then, within three days, serve the
district attorney with a notice to appear before the presiding judge of
the court, at a specified time, not less than five, nor more tnan ten
days thereafter, to have the bill of exceptions settled.

§ 416. Judge to settle and sign.] At the time appointed the judge
must settle and sign the bill of exceptions.

§ 417. Time — how enlarged.] The time for preparing the bill of
exceptions or the amendments thereto, or for settling the same, maybe
enlarged by the consent of the parties, or by the presiding judge.

§ 4l^. Exceptions deemed abandoned.] If the bill oi exceptions
be not served within the time prescribed m section 415, or within the
enlarged time therefor, as prescribed in the last section, the exc6i)tion8
are deemed abandoned. If it be served and the parties omit, within the
time limited by section 415, the one to prepare amendments, and the
othQr to give notice of appearance before the judge, they are respectively
deemed, the one to have agreed to the bill of exceptions, the other to
the amendments.

§ 419. What exceptions to contain.] The bill of exceptions must
contain so much of the evidence only as is necessary to present the
questions of law upon which the exceptions were taken, and the judge
must, upon the settlement of the bill, whether agreed to by the parties
or not, strike out all other matters contained therein.

§ 420. To BE piled.] The bill of exceptions must be filed with the
clerk of the court at the time of, or before, taking the vrit of error.

§ 421. Other exceptions.] Exceptions may be taken by either
party to a decision of the court or judge upon a matter of law:

1. In granting or refusing a motion m arrest of judgment.

2. In granting or refusing a motion for a new trial.

Criminal Procedure. The Trial. 857

CHAPTER YI.

NEW TRIALS.

§ 422. New trials.] A new trial is a re-examination of the issue
in the same conrt, before another jury after a verdict has been given.
The granting of a new trial places the parties in the same position as
if no trial had been had. All the testimony must be produced anew,
and the former verdict cannot be used or referrea to, either in
evidence or in argument^ or be i)leaded in bar of any conviction which
might have been nad under the indictment.

§ 423. Court has power to grant a new trial.] The court in
which a trial has been had upon an issue of fact, has power to grant a
new trial, when a verdict has been rendered against the defendant
by which his substantial rights have been prejudiced, upon his appli-
cation, in the following cases only:

1. When the trial has been had in his absence, if the indictment is
for felony.

2. When the jury has received any evidence out of court other than
that resulting from a view of the premises.

3. When the jury have separated without leave of the court, after
retiring to deliberate upon their verdict, or been guilty of any mis-
conduct by which a fair and due consideration of the case has been
prevented.

4. When the verdict has been decided by lot, or . by any means
other than a fair expression of opinion on the part of all the jurors.

5. When the court has misdirected the jury m a matter of law, or
has erred in the decision of any question of law arising during the
course of the trial.

6. When the verdict is contrary to law or evidence.

§ 424. Before judgment.] The application for a new trial must be
made before judgment.

CHAPTEB Til.

arrest op judgment.

g 425. Motion por defined.] A motion in arrest of judgment is an
application on the part of the defendant, that no judgment be ren-
dered on plea or verdict of guilty, or on a verdict against the defend-
ant on a plea of a former conviction or acquittal. It may be founded on
any of the defects in the indictment mentioned in section 265, unless
the objection to the indictment has been waived by a failure to demur,
and must be made before or at the time the defendant is called for
judgment.

§ 426. Arrest op judgment — no bar.] The court may also, on its
own view of any of these defects, arrest the judgment, without
motion. The effect of allowing a motion in arrest of judgment is to
place the defendant in the same situation in which he was before the

868 The Judgment. Criminal Procedure.

indictment was found, and in no case of arrest of judgment is the
verdict a bar to another prosecution or indictment.

§ 427. Guilty, but indictment insufficient.] If, from the evidence
on the trial there is reasonable ground to believe the defendant guilty,
and a new indictment can be framed upon which he may be convicted,
the court may order him to be recommitted to the officer of the proper
county or subdivision, or admitted to bail anew to answer the new
indictment. If the evidence shows him guilty of another offense, he
must be committed or held thereon. But if no evidencfe appears suffi-
cient to charge him with any offense, he must, if in custoay, be dis-
charged, or if admitted to bail, his bail is exonerated, or if money has
been deposited instead of bail, it must be refunded to the defendant,
and the arrest of judgment operates as an acquittal of the charge
upon which the indictment was founded.

TITLE IX-

OF JUDGMENT AND EXECUTION.

Chapter I. The judgment.
II. The execution.

CHAPTER I.

THE JUDGMENT.

§ 428. Court appoints time for.] After a plea or verdict of guilty,
or after a verdict against the defendant on a plea of a former con-
viction or acquittal, if the judgment is not arrested, or a new trial
granted, the court must appoint a time for pronouncing judgment.

§ 429. Time specified.] The time appointed must be at least two
days after the verdict, if the court intend to remain in session so long,
or if not, at as remote a time as can reasonably be allowed,

§ 430. Defendant's absence.] For the purpose of judgment^ if the
conviction is for a misdemeanor, judgment may be pronounced in his
absence.

§ 431. Officer to produce prisoner.] When the defendant is in
custody the court may direct the officer in whose custody he is, to
bring him before it for judgment, and the officer must do so accord-
ingly.

§ 432. Bench warrant.] If the defendant has been discharged on

bail, or has deposited money instead thereof, and does not appear for
judgment when his personal attendance is necessary, the court, in

Criminal Procedure. The Judgment. 859^

addition to the forfeiture of the undertaking of bail, or of money
deposited, may direct the clerk to issue a bench warrant for his
arrest.

§ 438. Same — ^duty of clerk.] The clerk, on the application of the
district attorney may accordingly, at any time after the order, whether
the court be sitting or not, issue a bench warrant into one or more
counties.

§ 434. Form of warrant.] The bench warrant must be substan-
tially in the following form :

County of ... .

TTie Territory of Dakota. To any sherilf, constable, marshal, or policeman in this territory:

A. B. having been, on the .... day of » A. D. ly. .; clulv convicted in the district court of

the county of , of tlie crime of (designating it generally), you are therefore commanded

forthwith'to arrest the above named A- B., and bring him before that court for judgment ; or if
the court has adjourned for the term, you are to denver him into the custotly of the sheriff of
the county of ... . ( aa the case may be).

Given und,er my hand, with Uie seal of said court afl3xed, this day of ....... A. D.

eighteen hundred and .....

By order of the court.

[8BAL.] E. F., Clerk.

■

§ 485. How WARRANT SERVED.] The bench warrant may be served
in any county, in the same manner as a warrant of arrest, except that
when served in another county, it need not be endorsed by a magis-
trate of that county.

§ 486. Disposal of defendant.] Whether the bench warrant is
served in the county in which it was issued, or in another county, the
officer must arrest the defendant and bring him before the court, or
commit him to the officer mentioned in the warrant, according to the
command thereof.

§ 437. Defendant informed by court.] When the defendant
appears for judgment, he must be informed by the court, or by the
clerk under its direction, of the nature of the indictment, and of his

Elea and the verdict, if any thereon, and must be asked whether he
as any legal cause to show why judgment should not be pronounced
against him.

§ 438. May show cause against judgment.] He may show for
cause against the judgment:

1. That he is insane, and if in the opinion of the court there is reas-
onable ground for believing him to be insane, the question
of his insanity must be tried as hereinafter in this code provided for.
If upon the trial of that question the jury find that he is sane, judg-
ment must be pronounced, but if they find him insane, he may be
committed to the territorial lunatic asylum, if there be one, until he
becomes sane or be otherwise committed according to law, and when
notice is given of that fact, as hereinafter provided for, he must be
brought before the court for judgment.

2. That he has good cause to offer, either in arrest of judgment, or
for a new trial, in which case the court may, in its discretion, order
the judgment to be deferred, and proceed to decide upon the motion
in arrest of judgment, or for a new trial.

% 439. Judgment rendered.] If no sufficient cause be alleged, or
appear to the court why judgment should not be pronounced, it must
thereupon be rendered.

860 The Judgment. Criminal Procedure.

§ 440. Court hear further evidence.] After a plea or verdict of
guilty, in a case where a discretion is conferred upon the court as to
the extent of the punishment, the court upon the suggestion of either
party, that there are circumstances which may be properly taken into
view, either in aggravation or mitigation of the punishment, may, in
its discretion, hear the same summarily at a specified time, and upon
such notice to the adverse ^arty as it may direct.

§ 441. How PRESENTED.] The circumstances must be presented, by
the testimony of witnesses examined in open court, except, that when
a witness is so sick or infirm as to be unable to attend, his deposition
naay be taken by a magistrate of the county out of court, at a specified
time and place, upon such notice to the adverse party as the court
may direct.

§ 442. Other evidence prohibited.] No aflBdavit, or testimony, or
representation of any kind, verbal or written, can be offered to, or
received by, the court or member thereof, in aggravation or mitigation
of the punishment, except as provided in the last two sections.

§ 443. Judgment in two offenses,] If the defendant have been con-
victed of two or more offenses, before judgnaent on either, the judg-
ment may be, that the imprisonment upon any one may commence at
the expiration of the imprisonment upon any other of the offenses,

§ 444. Fine and imprisonment.] A judgment that the defendant
pay a fine, may also direct that he be imprisoned until the fine is
satisfied, specifying the extent of the imprisonment, which cannot
exceed one day for every two dollars of the fine.

§ 445. Fine constitutes a lien.] A judgment that the defendant
pay a fine constitutes a ^lien, also, in like manner, as a judgment for
money rendered in a civil action.

§ 446. Papers filed by clerk.] When judgment upon a conviction
is rendered, the clerk must enter the same upon the minutes, stating
briefiy the offense for which the conviction nas been had, and must
immediately annex together and file the following papers, which con-
stitute a record of the action:

1. The indictment, and a copy of the minutes of the plea or
demurrer.

2. A copy of the minutes of the trial.

3. The charges given or refused, and the indorsements, if any,
thereon; and,

4. A copy of the judgment.

CHAPTER IL

the execution.

§ 447. Papers furnished officer.] When a judgment, except of
death, has been pronounced, a certified copy of the entry thereof upon
the minutes, must be forthwith furnished to the oflScer whose duty it
is to execute the judgment, and no other warrant or authority is
necessary to justify or require its execution.

§ 448. When for fine.] If the judgment is for a fine alone,
execution may issue thereon as on a judgment in a civil action.

Criminal Procedure, The Judgment. 861

§ 449. Foe imprisonment.] If the judgment be imprisonment, or a
fine and imprisonment, until such fine be paid, the defendant must
forthwith be committed to the custody of the proper officer, and by
him detained until the judgment be complied with.

§ 450. Imprisonment or fine.] When the jndgment is imprison-
ment in a county jail, or a fine, and that the defendant be imprisoned
until it be paid, the judgment must be executed by the sheriff of the
county or subdivision. In all other cases when the sentence is
imprisonment, the sheriff of the county must deliver the defendant to
the proper officer, in execution of the judgment.

§ 451. Imprisonment in territorial prison. If the judgment is
for imprisonment in the territorial prison the sheriff* of the county or
snbdivision, must, upon receipt of a certified copy thereof, take und
deliver the defendant to the warden, superintendent, or keeper, of the
territorial prison. He must also deliver to the warden or otner proper
officer, a certified copy < of the judgment, and take from the warden
or other proper officer a receipt for the defendant, and make return
thereof to the court.

§ 452. Authority while conveying prisoner.] The sheriff or his
deputy, while conveying the defendant to the proper prison, in execu-
tion of a jud^ent of imprisonment, has the same authority to
require the assistance of any citizen of this territory, in securing the
defendant, and in retaking him if he escape, as if the sheriff were in
his own county, and every person who refuses or neglects to assist the
sheriff, when so required, is punishable as if the sheriff were in his
own county.

§ 458. Proceedings on judgment op death.] When judgment of
death is rendered, the judge must sign and deliver to the sheriff of the
county, a warrant, duly aUested by the clerk, under the seal of the
court, stating the conviction and judgment, and appointing a day on
which the judgment is to be executed, which must not be less than
thirty, nor more than sixty days* from the time of the judgment.

§ ^4. Duty op judge in such case.] The judge of a court at which
a conviction requiring judgment of death is hsui, must, immediately
after the conviction, transmit to the governor, by mail or otherwise, a
statement of the conviction and judgment^ and of the testimony given
at the trial.

§ 465. Governor may require opinion op judges.] The governor
may thereupon require the o]ftnion of the jud^s of the supreme
coarty or any of them, upon the statement so mmished.

g 456. Governor only can rspriete.] No judge, court, or officer,
other than the governor, can reprieve or suspend tne execution of a
judgment of death, except the sheriff, in the cases provided in the
next seven sections, unless a writ of error is adlowed and taken.

§ 457. Ip dependant become insane.] If, after judgment of deaths
tibere is ^ood reason to suppose that the defendant has oecome insane,
the sheriff of the county or subdivision, with the concurrence of the
judge of the court by which the judgment was rendered, may summon
from the list of jurors selected, or to be selected forthwith by the
county commissioners, a jury of twelve persons to inquire into the
supposed insanity, and mc^st give immediate notice thereof to the
distinct attorney.

862 The Judgment. Criminal Procedure.

§ 458. Inquisition to tey insanity.] The district attorney must
attend to the inquisition, and may produce witnesses before the jury,
for which purpose he may issue process in the same manner as for
witnesses to attend before the grand jury, and disobedience thereto
may be punished in like manner as disobedience to process issued by
the court. \

§ 459; Return of cebtificate.] A certificate of the inquisition
must be signed by the jurors and the sheriff, and' filed with the
<5lerks of the court in which the conviction was had.

§ 460. Duty of sheriff on the finding.] If it. is found by the
inouisition that the defendant is sane, the sheriff must execute the
judgment; but if it is found that he is insane, the sheriff must suspend
the execution of the judgment until he receives a warrant from the

Sovernor, or from a majority of the judges of the supreme court,
irecting the execution of the judgment.

§ 461. Same.] If the inquisition find that the defendant is iasane,
the sheriff must immediately transmit to the governor, who may,
when the defendant becomes sane, issue a warrant appointing a day
for the execution of the judgment.

§ 462. Female pregnant — inquisition.] When there is good reason to
suppose that a female, against whom j>udgment of death is rendered^ is
pregnant, the sheriff of tne county or subdivision, with the concurrence
of the judge of the court by which the judgment was rendered, may
summon a jury of three physicians of the territory to inquire into the
supposed pregnancy. Immediate notice thereof must be given to the
district attorney. The provisions of sections 460 and 461 apply to the
proceedings upon the inquisition.

§ 468. I)uTY OF SHERIFF ON FiNuiNO.] If it is fouud by the inqui-
sition that the female is not pregnant^ the sheriff must execute the
judgment. If, however, it is found that she is pregnant^ the Bheriff
must suspend the execution of the judgment, and transmit the inqui-
sition to the governor. * ^

g 464. Governor to orber execution.] When the governor is
satisfied that the female is no longer pregnant, he may issue his wsn-
rant appointing a day for the execution of the judgment.

§465. Duty OF COURT WHEN judombnt NOT executed.] If, for any
reason, a judgment of death has not been executed, and it remains in
force, the court in which the conviction was had, on the application of
the district attorney, must order the defendant to be brought before
it, or, if he is at large, a warrant for his apprehension may be issued.

§ 466. Sake.] upon the defendant being brought before the court,
it must inquire into the facts, and if no legal reason exists against
the execution of the judgment, mu^t make an order that the sheriff
of the proper county execute the judgment at a. specified time. The
sheriff must execute the judgment accordingly.

§ 467. How DEATH produced.] The punishment of death must be
inflicted by hanging the defendant by the neck until he is dead.

§ 468. Death — where executed.! A ludgment of death must be
executed within the walls or yard of a jail of the county in which the
conviction was had, or some convenient private place in the county.
If there is no such jail or prison in the Qounty in which the convic-
tion was had, or if it becomes unfit or unsafe for the confinement of

/

Criminal Procedure. Weit of Error. 863

prisoners, or is destroyed by fire or otherwise, and the jail of another
county has befen legally designated for the confinement of the prisoners
of the county in wnich the conviction was had, the judgment must be
executed in manner as above.

§ 469. Prbsbnt at bxkoution.] The sheriff or deputy-sheriff of the
county must be present at the execution, and must invite the
presence, by at least three days' notice, of the district attorney,
together with one physician and twelve reputable citizens, to be
selected by him. He must also, at the request of the defendant,
permit any minister or ministers of the gospel whom the defendant
may name, and any of his relatives or fnends, not to exceed five, to
attend the execution, and also such peace officers as the sheriff or
under-sheriff may deem proper. But no persons other than those
mentioned in this section can be present at the execution, nor can any
person under age be allowed to witness the same.

§ 470. Return of wxboution.] The sheriff or deputy*fiheriff must
prepare and ^gn, with their names of office, a certificate attached to
the death warrant, setting forth the time, manner, and place of the
execution, and that the judgment was executed upon the defendant
according to the provisions of the last three sections, and attested by
at least twelve persons, not relatives of the defendant, who witnessed
the execution.

§ 471. Sheriff to file^ oertifioatb.] The sheriff or deputy-sheriff
must cause the certificate to be filed in the office of the clerk of the
court.

TITLE X.

writ of error.

Chapter L Writs of error, when allowed and how taken,

and the effect thereof.
II, Dismissing the Writ for Irregularity.
IIL Argument of the Writ,
lY. Judgment in Supreme Court

CHAPTER I.
wurrs of error, when allowed and how taken, and the e1?'pect

THEREOF.

§ 472. Writ of error.] Either party may sue out a writ of error
to remove to the supreme court, and therein to re-examine and review
the record and bills of exception in a criminal action, upon matters
of law decided in the district courts in manner as prescribed in this
chapter.

864 Writ of Error. Criminal Procedure.

§ 473. Proceedings to obtain writ.] Writs of error shall be
allowed in all cases from the final decisions of said district courts, to
the supreme court, under such regulations as are herein or may be
prescribed by law. The party seeking the writ must apply to the
judffe, or to a justice of the supreme court, by petition, verijSed by
af&davit, setting forth clearly and succinctly the cnief matters of error
complained of.

§ 474. Title of parties to writ.] The party suing out the writ is
known as the plaintiff in error, and tlie adverse party as the defend-
ant in error, but the title of the action is not changed in consequence
of the writ.

1 475. When by defendant.] The writ may. be sued out by the
defendant:

1. From a final judgment of conviction.

2. From an order refusing a motion in arrest of judgment.

3. From an order refusing a motion for a new tnaJ.

4. Upon bills of exception for any of the causes mentioned in sec-
tion 412 of this code.

§ 476. Bt the territory.] The writ may be sued out by the
territory:

1. From a judgment for the defendant on a demurrer to the indict-
ment.

2. From an order arresting the judgment.

3. From an order granting a new trial.

§ 477. Limit of time for writ.] The writ must be sued out within
one year after the rendition of the judgment, and within sixty days
after an order is made.

§ 478. Effect of writ.] A writ sued out by the territory, in no
case stays or affects the operation of a judgment in favor of the
defendant, until judgment is reversed.

§ 479. Supersedeas.] A writ of error from the supreme court to
remove and re-examine or review a judgment of conviction, stays the
execution of the judgment in all capital cases, and in all other cases,
upon filing with the clerk of the court in which the conviction was
had, a certificate of the judges of such court, or of a justice of the
supreme court, that, in his opinion, there is probable joause for the writ^
but not otherwise.

& 480. Duty of sheriff.] If the certificate provided for in the pre-
ceding section is filed, the sheriff must, if the defendant be in his
custody, upon being served with a ^opy thereof, keep ttie defendant in
his custody without executing the judgment, and detain him to abide
the judgment of the supreme court.

§ 481. Execution suspended.] If, before the granting of the
certificate, the judgment has commenced, the further execution thereof
is suspended, and upon service of a co^y of such certificate the defend-
ant must be restored, by the officer in whose custody he is, to his
original custody.

§482. Clerk's return ON writ.] Upon the writ of erroo* being
sued out, the clerk of the court upon whom it is served, must, within
ten days thereafter, or within such reasonable time as may be allowed
to him, transmit to the clerk of the supreme court the writ, with his
return thereon, to which shall be annexed and returned an authen-

Criminal Procedure. Wbit of Error. 865

ticated copy of the record of this action ag mentioned in section 448,
and of all bills of exception, together with an assignment of errors
and prayer for reversal,

§ 4i83. Return to contain obrtificatb op judge.] The return
must also embrace a certificate of the judge or of a justice of the
supreme court that the record contains in iteelf all the bills of excep-
tion and a true copy of all the evidence bearing upon, or necessarily
relating to, any bill of exception.

§ 484. Exceptions to oHARChE.] The judges of the district courts
shall not allow any bills of exception which shall contain the charge
of the (x>urt at large to the jury, upon any general exception to the
whole of such charge, but the party. excepting shall be required to
state dictinctly the several ana particular matters of law in such
charge to which he excepts, and such matters of law, and those only,
shall be inserted in the bills of exception, and allowed by the court.

§ 485. Adverse party notified.] , Immediately after the issuing of
the writ, a citation to the adverse party to be and appear at the
supreme court, to be issued by the clerk thereofi shall be served on him
or his attorney, giving at least ten days' notice thereof.

§ 486. Concerning certiorari.] No certiorari for diminution of
the record shall be hereafter awarded in any action, unless a motion
therefor shall be made in writing, and the facts on which the same is
founded, shall, if not admitted by the other party, be verified by affi-
davit, and all motions for such certiorari, shall be made at the first
term of the entry of the action; otherwise, the same shall not be
granted, unless upon special cause shown to the court accounting
satisfactorily for the delay.

CHAPTER 11.

DISMISSING THE WRIT FOR IRREGULARITY.

§ 487. In substantial particulars.] If the writ is irregular in
any substantial particular, but not otherwise, the court may, on any
day in term, on motion of the defendant in error, upon two days'
notice, with copies of the papers on which the paotion was founded,
order it to be dismissed.

§ 488, For error in return.] The court may also, upon like
motion, dismiss the writ, if the return is not made as provided in
sections 484 and 485, unless for good cause they enlarge the time for
that purpose.

CHAPTER III.

argument op the writ.*

§ 489. How BROUGHT ON.] The writ of error may be brought to
argument by either party on ten days' notice, on any day, at a general
or adjourned term of the supreme court, but it mftst be heard and
determined at the first term after the record is filed, unless for good
cause shown.
ftft

866 Wbit of Ebbob. Criminal Procedure,

§ 490. What plaintiff to furnish.] When the writ is called for
argument^ the plaintiff in error must furnish each member of the
court with a copy of the record of the action, 43ills of exception, and
of the assignment of errors. If he fails to do so, the writ must be
dismissed unless for cause shown the court otherwise direct.

§ 491. Failure to appear.] The judgment may be affirmed if the
plaintiff in error fails to appear, but can be reversed only after ail-
ment, though the defendant in error fails to appear.

§ 492. Number of counsel heard.] • Upon the argument of the
writ, if the offense is punishable with death, three counsel on each
side must be heard, if they require it. In any other case, the c^urt
may, in its discretion, restrict tne argument to one counsel on each
side.

CHAPTER IV.

judgment in supreme court.

§ 493. When court must give judgment.] After hearing the writ,
the court must give judgment without regard' to technical errors or
defects, or to exceptions which do not affect the substantial rights of
the parties.

§ 494. Power qf supjieme court.] The supreme court may re verse,
aflBrm, or modify, the judgment or order of the district court, and
may. if proper, order a new trial.

§ 495. Duty of court if judgment is reversed,] If a judgment
against the defendant is reversed, without ordering a new trial, the
supreme court must direct, if he is in custody, that he be discharged
therefrom, or if on bail, that his bail be exonerated, or if money was
deposited instead of bail, that it be refunded to the defendant.

§ 496. When original judgment must be enforced.] On a judg-
ment of affirmance against the defendant, the original judgment must
be enforced.

8 497. Disposition of judgment from supreme court.] When the
judgment of the supreme court is given, it must be entered in the
minutes, and a certified copy of the entry forthwith remitted to the
clerk of the district court.

§ 498. When supreme court has no further jurisdiction.] After
the certificate of the judgment has been retaitted to the court below,
the supreme court has no further jurisdiction of the writ, or of the
proceedings thereon, and all orders which may be necessary to carry
the judgment into effect, must be made by the court to which the cer-
tificate is remitted.

Criminal Procedurei MiBCBLiiANBOtTs. . 867

TITLE XI.

MISCELLANEOUS PROCEEDINGS.

Chapter I. Compelling the attendance of witnesses.

II. Inquiring into the in$anity of the defendant before trial
or after conviction.

III. Compromising misdemeanors by leave of the court.

IV. Proceedings against corporations.
V. Entitling aflRdavits.

VL Errors and mistakes in pleadings or other proceedings.

VII. Disposal of property stolen or embezzled.

VIII. Reprieves, commutations and pardons.

IX. Bail.

X. Of search warrants..

XL Proceedings against fugitives from justice.

XII. Dismissal of the action before or after indictment, for

want of prosecution or otherwise.

XIII. General provisions and definitions applicable. to this code.

CHAPTER I.

COMPELLING THE ATTENDANCE OF WITNESSES.

§ 499. SuBPCENA DEFINED.] The process by which the attendance
of a witness before a court or magistrate is required is a subpoena.

§ 500. Magistrates may issue.] A magistrate before whom an
information is laid, or to whom a presentment of a grand jury is sent,
may issue subpoenas, subscribed by him, for witnesses within the terri-
tory, either on behalf of the territory or the defendant.

§ 501. District attorney for grand jury,] The district attorney
may issue subpoenas, subscribed by him, for witnesses within the
territory, in support of the prosecution, or for such other witnesses as the
grand jury may direct, to appear before the grand jury upon an
investigation before them.

§ 502. Same for trial.] The district attorney may in like manner
issue subpoenas for witnesses within the territory, in support of an
indictment, to appear before the court at which it is to be tried,

§ 503. Clerk issues blank for defendant.] The clerk of the court
at which an indictment is to be tried, must, at all times, upon the
application of the defendant, and without charge, issue as many blank
subpoenas, under the seal of the court, and subscribed by him as]clerk,
for witnesses within the territory, as may be required by the defendant.

868 MisoBLLANBOUs. . Criminal Procedure.

§ 504. Form of.] A subpoena authorized by the last four sections
must be substantially in the following, form :

' In the name of the Territory of Dakota :
To A B:

You are commanded to appear before 0 D, a justice of the peace at the town of ... . (or **Uie

grand jury of the county of ," or **the district court ," or as the case may be), on

(stating the day and hour), as a witness in a criminal action prosecuted by the Territory of Dakota
against £ F.

Dated at the town of. . . . (as the case may be) the . . .day of. . . ., 18. .

'*G H, justice of the peace," or '*I K, district attorney," or "by order of the court, L M, clerk,"
(as the case may be).

§ 505. SuBPCBNA DTTCBS TECUM.] If the books, papers, or documents
be required, a direction to the following effect must be contained in
the subpoena:

And you are required also to bring with you the following: (Describe intelligibly the books,
papers, or documents required.)

§ 506. By whom sbrved.] A peace oflBcer must serve in his county,
city, town, or village, as the case may be, any subpoena delivered to
him for service, either on the part of the territory or of the defendant,
and must make a written return of the service, subscribed by him,
stating the time and place of service, without delay, A subpoena may,
however, be served by any other person.

§ 507. How SERVED.] A subpoena is served by delivering it, or by
showing it, and delivering a copy thereof to the witnesses personally.

§ 508. Witness' expenses.] When a person attends before a magis-
trate, grand jury, or court, as a witness on behalf of the territory,
upon a subpoena, or pursuant to an undertaking, and it appears that
he has come from a place out of the county, or that he is poor, the
court, if the attendance of a witness be upon a trial, by an order
entered upon its minutes, or in any other case, the district judge, by a
written order, may direct the county treasurer to pay the witness a
reasonable sum, to be specified in the order for his expenses.

§ 509. Payment.] Upon the production of the order, or a certified
copy thereof, the county treasurer must pay the witness the sum
specified therein, out of the county treasury.

§510. Witness RESIDING OUT OF COUNTY.] No person is obliged to
attend as a witness, before a court or magistrate out of the county
where the witness resides or is served with the subpoena, unless the
judge of the court in which the offense is triable, upon an aflBdavit of
the prosecutor or district attorney, or of the defendant or his counsel,
stating that he believes that the evidence of the witness material, and
his attendance at the examination or trial necessary, shall indorse on
the subpoena an order for the attendance of the witness.

§511. Disobedience TO SUBPOENA.] Disobedience to a subpoena, or
a refusal to be sworn or to testify, may be punished by the court or
magistrate, as for a criminal contempt, in the manner provided in the
code of civil procedure.

§ 512. Witness for defendant disobeying.] A witness disobeying
a subpoena issued on the part of the defendant, also forfeits to the
defendant the sum of fifty dollars, which may be recovered in a civil
action.

Criminal Procedure. Misctellanboub. 869

CHAPTER II.

INQUIRING INTO THE INSANITY OP THE DEFENDANT BEFORE TRIAL OR

AFTER CONVICTION.

§ 513. Re-bnactment.] Chapter V, of article VIII, of title XI, of
an act to establish a code of criminal procedure for Dakota Territory,
approved January 12, 1869, said chapter being headed, " Inquiry into
the insanity of the defendant before trial or after conviction,^* so far
as the same is not in conflict with the provisions of this present act,
is hereby revived and re-enacted. The remainder of this chapter is
the law referred to.

. § 514. Insane cannot be tried.] An act done by a person in a
state of insanity cannot be punished as a public offense, nor can a
person be tried, adjudged to punishment, or punished for a public
(^ense while he is insane.

§ 515. When doubt arises.] When an indictment is called for
trial, or upon conviction the defendant is brought up for judgment, if
a doubt arise as to the sanity of the defendant, the court must order
a jury to be impaneled, from the jurors summoned and returned for
the term, or who may be summoned by direction of the court as pro-
vided in sections 303 to 308, both inclusive, to inquire into the fact.

§ 5J6. Trial to be suspended.] The trial of the indictment or
the pronouncing of the judgment, as the case may be, must be sus-
penaed until* the question of insanity is determined by the verdict of
the jury.

§ 517. Order of trial.] The trial of the question of insanity
must proceed in the following order:

1. The counsel for the defendant must open the case and offer
evidence in support of the allegation of insanity.

2. The counsel for the territory may then open their case and offer
evidence in support thereof.

3. The parties may then respectively offer rebutting testimony only,
unless the court, for good reason, in furtherance of justice, permit
them to offer evidence upon their original case.

4. When the evidence is concluded, unless the case is submitted to
the jury, on either side or on both sides, without argument, the coun-
sel for the territory must commence, and the defendant or his counsel
may conclude the argument to the jury.

6. If the indictment be for an offense punishable with death, two
counsel on each side may argue the cause to the jury, in which case they
must do so alternately. If it be for any other offense, the court may,
in its discretion, restrict the argument to one counsel on each side.

6. The court must then charge the jury.

§ 518. Charge of court.] The provisions of sections 345 and 347,
in respect to the duty of the court upon questions of law, and of the
jury upon questions of fact, and the provisions of section 377, in
respect to the charge of the court to the jury, upon the trial of an
indictment or information, apply to the question of insanity.

870 MisoBLLANBOUB. Criminal Procedure.

§ 519. If sane, trial proceeds.] If the jury find the defendant
sane, the trial of the indictment must proceed, or judgment may be
pronounced, as the case may be.

§ 520. If FotTND INSANE.] If the jury find the defendant is insane,
the trial or judgment must be suspended until he becomes sane, and
the court, if it deems his discharse dangerous to the public peace or
safety, may order that he be in tne meantime committed to the care
of the sheriff until he becomes sane.

§ 521. If committed, bail.] The commitment of the defendant, as
mentioned in the last section, exonerates his bail, or' eQtitles a person
authorized to receive the property of the defendant^ to a return ot
money he may have deposited instead of bail.

§ 522, Restored to sanity.] When he becomes sane the sheriff
must thereupon, without delay, place him in the proper custody until
he be brought to trial or judgment^ as the case may be, or be legally,
discharged.

§ 523. Expenses.] The expenses of keeping the defendant are in
the first instance chargeable to the county, but the county may recover
them from the estate of the defendant^ if he have any, or from a
relative.

CHAPTER III.

compromising misdemeanor by leave of the court.

§ 524. Limitation.] When a defendant is held to answer on a charge
of misdemeanor, for which the person by the act constituting tne
offense, has a remedy by a civil action, the offense may be compromised
as provided in the next section, except when it was committed:

1. By or upon an officer of justice while in the execution of the
duties of his office;

2. Riotously; or,

3. With an intent to commit a felony.

§ 525. To BE BY permission.] If the party injured appear before the
court to which the depositions and statement are required by section
160 to be returned, at any time before trial, on an indictment for
the offense, and acknowledge in writing that he has receive satis-
faction for the injury, the court may, in its discretion, on payment of
the costs incurrea, order all proceedings to be stayed upon the prose-
cution, and the defendant to be discharged therefrom. But in that
case the reasons for the order must be set forth therein and entered
upon the minutes.

§ 526. Order a bar.] The order authorized by the last section is
a bar to another prosecution for same offense.

§ 527. No PUBUc OFFENSE COMPROMISED.] No public offeuso can be
compromised, nor can any proceeding for the prosecution or punish-
ment thereof upon a compromise, be stayed, except as provided in sec-
tions 524 and 525,

Criminal Procedure. Misobllanboub. 871

CHAPTER IV.

PROCEEDINGS AGAINST CORPORATIONS.

§ 528. Summons.] Upon a presentment against a corporation, the
magistrate must issue a summons signed by him, with nis name of
office, requiring the corporation to appear before him at a specified
time and place, to answer the charge. The time to be not less than
ten davs after the issuing of the summons.

§ 529. Form of summons.] The summons must be in substantially
the following form:

County of

In the name of the Territory of Dakota.
To the (naming the corporation) :

You are hereby summoned to appear before me at (naming the place), on (specifying the day
and hour) to answer to the charge made against you, upon the information of A. d. (or the
presentioent of the grand jury of the county of ) for (designating the offense generally).

Dated at the city, or town, of .... , the day of 18. .

G. H., Justice of the peace*(or as the case may be).

§ 630. When and how served.] The summons must be served at
least five days before the day of appearance fixed therein, by deliver-
ing a copy thereof and showing the original to the president, or other
head of the corporation, or to the secretary, cashier, or managing
agent thereof.

§ 531. Examination of charge.] At the time appointed in the
summons the magistrate must investigate the charge in the same
maTiner as in the case of a natural person brought before him, so far as
those proceedings are applicable.

§ 532. Certificate of magistrate.] After hearing the proofs the
magistrate must (certify upon the depositions, either that there is or is
not sufficient cause to believe the corporation guilty of the offense
charged, and must return the depositions and certificate in the same
manner prescribed in section 160.

§ 533. Grand jury may proceed.] If the magistrate return a cer-
tificate that there is sufficient cause to believe tne corporation guilty
of the offense charged, the grand jury may proceed thereon, as in the
case of a natural person held to answer.

§ 534. Appearance and plea.] If an indictment be found, the cor-
poration may appear by counsel to answer the same. If they do not
thus appear, a plea of not guilty must be entered, and the same
proceedings had thereon as in other ca^es.

§ 535. Fine collected.] When a fine is imposed upon a corpora-
tion on conviction, it may be collected by virtue of the order imposing
it, by the sheriff of the county, out of their real and personal prop-
erty, in the same manner as upon an execution.

872 MisoBLLANBOUS. Criminal Procedure.

CHAPTER Y.

ENTITLING AFFIDAVITS.

§ 536. Entitling unnecessary.] It is not necessary to entitle an
affidavit or deposition in the action, whether taken before or after
indictment, or upon a writ of error, but if nxade without a title, or
with an erroneous title, it is as valid and effectual for every purpose
as if it were duly entitled, if it entelligibly refer to the proceeding,
indictment^ or writ of en'or, in which it is made.

CHAPTER VL

ERRORS AND MISTAKES IN PLEADINGS OR OTHER PROCEEDINGS.

§ 537. Informalities not fatal.] Neither a departure from the
form or mode prescribed in this code, in respect to any pleadings or
proceeding, nor an error or mistake therein, renders it invalid, unless
it has actually prejudiced the defendant, or tended to his prejudice, in
respect tp a substantial right.

CHAPTER Vll. .

disposal op PROPERTY STOLEN OR EMBEZZLED.

§ 538. To BE HELD BY OFFioBijL.] Whou property alleged to have
been stolen or embezzled^ comes into the custody of a peace ofB.cer, he
must hold it subject to the order of the magistrate authorized by the
next section to direct the disposal thereof.

§ 539. Order for its delivery.] On satisfactory proof of the title
of the owner of the property, the magistrate before whom the iufoi^
mation is laid, or who examines the charge against the person accused
of stealing or embezzling the property, may order it to be delivered to
the owner on his paying the reasonable and necessary expenses incurred
in its preservation, to be certified by the magistrate. The order
entitles the owner to demand and receive the property.

§ 540. Magistrate must deliver on proof,] If property stolen or
embezzled come into the custody of a magistrate, it must be delivered
to the owner on satisfactory proof of his title, and on his paying the
necessary expenses incurred in its preservation, to be certified by the
magistrate.

§ 541. Court may deliver by order.] If property stolen or embez-
zled have not been delivered to the owner, the court before which a
trial is had for stealing or embezzling it, may, on proof of his title,
order it to be restored to the owner.

§ 542. If not claimed in six months.] If property stolen or
embezzled be not claimed by the owner before the expiration of six

p

Criminal Procedure. MibobUiANBOUS. 873

months from the conviction of a person stealing or embezzling it, the
ma^strate or other officer having it in his custody, must, on jjayment
of the necessary expenses incurred in its preservation, deliver it to the
county commissioners, to be paid into the county* treasury.

§ 543. Reobipt to defendant and clerk.] When money or other
property is t^Jten from a defendant, arrested upon a charge of public
offense, the officer taking it must, at the time, give duplicate receipts
therefor, specifying particularly the amount of money, or the kind of
property taken. One of which receipts he must deliver to the defend-
ant, ana the other of which he must file with the clerk of the court to
which the depositions and stetement must be sent, as provided in
section 160.

CHAPTER YIII.

REPRIEVES. COMMUTATIONS, AND PARDONS.

§ 544. RB'Bnaotment.] Chapter XII of article VIII of title XI of
"the aforesaid act of January 12, 1869, said chapter being entitled
"reprieves, commutations, and pardons," so far as the said chapter is
in accordance with the organic act, and consistent with the provisions
of this code, is hereby revived and re-enacted. The remainder of this
chapter i« the law referred to.

§ 545. Governor may grant.] The governor has power to grant
reprieves, commutations, and pardons, after conviction, for all oifenses
except treason and cases of impeachment, upon such conditions, and
with such restrictions and limitations as he may think proper, subject
to the regulations provided in this chapter.

§ 546. Treason — duty op legislature.] He may also suspend the
execution of the sentence upon a conviction for treason, until the case
can be reported to the legislature, at the next meeting, when the
legislature must either pardon or commute the sentence, direct the
execution thereof, or grant a further reprieve.

§ 547. Report to legislature.] He must annually communicate
to the legislature, each case of reprieve, commutation, or pardon,
stating the name of the convict, the crime of which he was convicted,
the sentence and its date, and the date of the commutation, pardon,
or reprieve.

§ 548. Report of oases required.] When an application is made
to the governor for a pardon, he may require the presiding judge of
the court before which the conviction was had, or the district attorney
by whom the action was prosecuted, to furnish him, without delay,
with the statement of the facts proved on the trial, and of any other
facts having reference to the propriety of granting the pardon.*^

§ 549. Notice to district attorney.] At least ten days before the
governor acts upon an application for a pardon, written notice of the
mtention to apply therefor, signed by the person applying, must be
served upon the district attorney of the county where the conviction
was had, and proof by affidavit of the service, must be presented by
the governor;* Provided^ Such application is not signed by such district
attorney;

874 MisosLLANBons. Criminal Procedure.

§ 550. PuBuoATiON OP NOTICE.] Unless dispensed with by the
goveruor, a copy of the notice must also be published, for thirty days
from the first publication, in the territorial paper, and a paper in the
county in which the conviction was had, nearest the pLla4^ of con-
viction.

§ 551. Papers filed with sbceetary.] When the governor grants
a reprieve, commutation, or pardon, he must, within ten days thereafter,
file all the papers presented to him in relation thereto, in the office
of the secretary of the territory, by whom thej must be kept as rec-
ords, open to public inspection.

CHAPTER IX.

OP bail.

§ 552. Must be admitted, when.] Bail, by sufficient sureties, shall
be admitted upon all arrests in criminal cases where the offense is
not punishable by death, and in such cases it may be taken by any
of the persons or courts authorized by law to arrest and imprison
offenders.

§ 553. May, when.] Bail, by sufficient sureties, may be admitted
upon all arrests in criminal cases where the punishment may be death,
unless the proof is evident or the presumption great; but in such cases
it shall be taken only by the supreme court or a district court, or by a
justice or judge thereof, who shall exercise their discretion therein,
having regard to the nature and circumstances of the offense, and of
the evidence, and to the usages of law.

§ 554. After conviction — classed,] After conviction of an offense
not punishable with death, a defendant who sues out a writ of error
for tne revision of a judgment may be admitted to bail:

1. As it matter of right when the writ of error is from a judgment
imposing a fine only.

2. As a matter of discretion in all other cases.

§ 555. Qualification and justification.] The qualifications of bail
are the same as those in civil cases, and the sureties must in all cases
justify by affidavits taken before the magistrate, court, or judge, that
they each possess those qualifications.

§ 556. Discharge of dependant.] Upon the allowance of bail and
the execution of the requisite recognizance, bond, or undertaking, to
the territory, the magistrate, judge, or court must, if the defendant
is in custody, make and sign an order for his discharge, upon the
delivery of which to the proper officer the defendant must be discharged.

§ 557. Deposit for bail. | A deposit of the sum of monev meptioned
in the order admitting to bail, is equivalent to bail, and upon such
deposit the defendant must be discharged from custody.

^ 55S. Arkbst by bail.] Any party charged with a criminal offense
iiud admitted to bail, may be arrested by his bail at any time before
they are finally iiischarged, and at any place within the territory,
or by a written authority indorsed on a certified copy of the recog-
nizance, bond, or undertaking, may empower any officer or person of
suitable age and discretion to do so, and he may be surrendered and

mm^^a^^mm^m^ammmmmmii

Criminal Procedure. Misosllakboub. 875

delivered to the proper sheriff or other officer, before any court, judge,
or magistrate having the proper jurisdiction in the case, and at the
request of such bail, the court, judge, or magistrate, shall recommit
the party so arrested to the custody of the sheriff or other officer,
and endorse on the recognizance, bond, or undertaking, or certified
copy thereof, after notice to the district attorney, and if no cause to
the contrary appear, the discharge and exoneration of such bail, and
the party so committed shall therefrom be held in custody until dis-
charged by due course of law^

§ 559. Forfeit — ^exousb.] If, without sufficient excuse, the defend-
ant neglects to appear according to the terms or conditions of the
recognizance, bona, or undertakmg,. either for hearing, arraignment,
trial, or judgment, or upon any other occasion when his presence in
court, or before the magistrate, may be lawfully required, or to sur-
render himself in execution of the judgment, the court must direct
the fact to be entered upon its minutes, and the recognizance, bond,
or undertaking of bail, or the money deposited instead of bail, as the
case may be, is and shall be, thereupon declared forfeited. But, if at
any time before the final adjournment of the court, the defendant or
his bail appear and satisfactorily excuse his neglect, the court may
direct the forfeiture to be discharged upon such terms as may be just.
After the forfeiture the district attorney must proceed with all due
diligence, by action against the bail upon the instrument so forfeited.
If money deposited instead of bail be so forfeited, the clerk of the
court or other officer, with whom it is deposited, must, immediately
after the final adjournment of the court, pay over the money deposited
to the county treasurer. '

I 560. Additional security.] When proof is made to any court,
judge, or other magistrate, having authority to commit on criminal
charges, that a person previously admitted to bail on any such charge
is about to abscond, or that his bail is insufficient, or has removed from
the territory, the judge or magistrate shall require such person to
give better security, or for default thereof, cause him to be committed
to prison, and an order for his arrest may be indorsed on the former
committment, or a new warrant therefor may be issued by such judge
or magistrate, setting forth the cause thereof.

CHAPTER X.

or SEARim WARRANTS.

§561. Search WARRANT DEFINED.] A searcli warrant is an order
in writing, in the name of the territory, signed by a magistrate,
directed to a peace officer, commanding him to search for personal
property, and bring it before the magistrate.

§ 562. (jbounds for its issue.] It may be isued upon either of the
following grounds:

1. When the property was stolen or embezzled, in which case it may
be taken on the warrant, from, any house or other place in which it is

876 MisoBLLANHOUB. Criminal Procedure,

concealed, or from the possession of the person by whom it was stolen
or embezzled, or of any other person in whose possession it may be.

2. When it was used as the means of committing a felony, in
which case it may be taken on the warrant from any house or other
place in which it is concealed, or from the possession of the person by
whom it was used in the commission of the offense, or of any other
person in whose possession it may be.

3. When it is in the possession of any person, with the intent to
use it as the means of committing a public offense, or in the possession
of another to whom he may have delivered it for the purpose of con-
cealing it or preventing its being discovered. In which case it may
be taken on the warrant from such person, or from a house or other
place occupied by him, or under his control, or from the possession of
the person to whom he may have so delivered it.

§ 563. Pbobablb cause.] A search warrant cannot be issued but
upon probable cause, supported by affidavit, naming or describing the
person, and particularly describing the property and the place to be
searched.

§ 564. Issued on sworn complaint.} The magistrate must, before
issuing the warrant, take, on oath, the complaint of the prosecuting
witness in writing, which must set forth the facffcs tending to estab-
lish the grounds of whereof is punishment by imprisomnent tn the terri-
torial prison, shall be the application, or probable cause for believing
that they exist.

§ 565. Requisites of warrant.] If the magistrate be thereupon
satisfied of the existence of grounds of the application, or that there is
probable cause to believe their existence, he' must issue a search war-
rant, signed by him with his name of office, to a peace officer in his
county, commanding him forthwith to search the person or place
named, for the property specified, and to bring it before the magis-
trate, and also to arrest the person in whose possession the same may
be found, to be dealt with according to law.

§ 566. Form of warrant.] The warrant must be in substantially
the following form:

County of ... .

In the name of the Territory of Dakota: To any sheriff, constable, marshal, or policeman in
the county of ....

Proof by affidavit having been this day made before me, by (naming every person whose affi-
davit has been t4iken;, the (stating the particular grounds of the application according to sec-
tion 562, or if the affidavit be not positive) that there is probable cause for believing that (stating
the grounds of the application in the same manner).

You arc therefore commanded, in the day time, (or '* at aoy time of the day or night/* as the
case may be, according to section 570) to make immediate search on the person of C. D. (or "in
the house situated," describing it, or any other place to be searched, vrith reasonable particn-
larity, as the case may be), for the following property (describing it with reasonable particu-
larity), and if you find the same, or any part thereof, to bring it forthwith before me, at (stating
Ihejplace).

Dated at the .... day of ! . . . 18 . .

E. F., justice of the peace of the city (or town) of (or as the case may be).

§ 567. By whom 8ervei).1 A search warrant may in adl cases be
served by any of the oflBcers mentioned in its direction, but by no
other person except in aid of the oflBcer, on his requiring it, he being
present and acting in its execution.

§ 568. Opfiobr may break: door.] The officer may break open an
outer or inner door, or window of a house, or any part of the nouse,

Criminal Procedurt. MisoiLL^insous. 877

or anything therein, to execute the warrant, if, after notice of his
authority and purpose, he be refused admittance.

§ 569, Samb.] He may break open any outer or inner door, or win-
dow of a house, for the purpose of liberating a person who, having
entered to aid him in the execution of the warrant, is detained therein,
or when necessary, for his own liberation.

§ 570. Sbbyxd in wight, whbn.] The magistrate must insert a
direction in the warrant, that it be served in the day time, unless the
affidavits be positive that the property is on the person, or in the place
to be searched. In which case he may insert a direction that it be
served at any time of the day or night.

jg 571. Void aftbb ten days.] A search warrant must be executed
and returned to the ma^strate by whom it was issued within ten days.
After the expiration of these times respectively, the warrant, unless
executed, is void.

§ 572. Peqpbety, how disposed of.] When the property is delivered
to the magistrate, he must, if it was stolen or embezzled, dispose of it
as provided in sections 540 to 543, both inclusive. If it were taken on
a warrant issued on the grounds stated in the second and third subdi-
visions of section 562, he must retain it in his possession, subject to
the order of the court to which he is required to return the proceed-
ings before him, or of any other court in which the offense, in respect
to which the property was taken, is triable.

§ 573. EsTUEN OF WARRANT.] The officer must forthwith return
the warrant to the magistrate, and deliver to him a written inventory
of the property taken, made publicly, or in the presence of the person
from wnose possession it was taken, and of the applicant for the war-
rant, if they be present, verified by the affidavit of the officer, and
taken before the magistrate, to the following effect:

I, A. B., the officer by whom this warrant was executed, do swear that the above inventory
contains a true aud detailed account of al] the property taken by me on the warrant.

§ 574. Copy OF inventory.] The magistrate must thereupon, if
required, deliver a copy of the inventory to the person from whose
possession the property was taken, and to the applicant for the
warrant. *

§ 575. Complaint contbovertbb.I If the grounds on which the
warraoot was issued be controverted, the magistrate must proceed to
take testimony in relation thereto.

§ 576. Tbbtimony— HOW taken.] The testimony given by each wit-
ness must be reduced to writing, and authenticated in the manner
prescribed in sections 143 and 145.

§577. PaopiaBTY to bb rbstokbd.] If it appear that the property
taken is not the same as that described in the warrant, or that there
is no probable cause for believing the existence of the grounds on
which the warrant was issued, tne magistrate must cause it to be
restored to the person from whom it was taken.

§ 578. Dbpositionb returned.] The magistrate must annex together
the depositions^ the search warrant and return, and the inventory, and
then return thein to the next district court of the county having
power to inquire into the offense in respect to which the search war-

878 MiscBLLAKBOtrs. Criminal Procedure.

rant was issued, by the intervention of a grand jury, at or before its
opening on the first day.

§ 579. Without cause.} A person who maliciously and without
probable cause, procures a search warrant to be issued and executed,
is guilty of a misdemeanor.

§680. Officer exceeding authority.] A peace officer in exe-
cuting a search warrant, who willfully exceeds his authority, or
exercises it with unnecessary severity, is guilty of a misdemeanor.

§ 581. Searching defendant by magistrate.] When a person
charged with a felony is supposed by the magistrate before whom he is
brought to have upon his person a dangerous weapon, or anything
which may be used as evidence of the commission of the oflFense, the
magistrate may direct him to be searched in his presence, and the
weapon or other thing to be retained, subject to his order, or the order
of the court in which the defendant may be tried.

CHAPTER XI.

proceedings against fugitives prom justice.

582. Governor may offer reward.} The governor may oflFer a
reward not exceeding one thousand dollars, payable out of the terri-
torial treasury, for the apprehension:

1. Of any convict who has escaped from the territorial prison; or,

2. Of any person who has committed, or is charged witn the com-
mission of, an offense punishable with death.

§ 583. Delivery on requisition.] A person charged in any state or
territory of the United States, with treason, felony, or other crime,
who shall flee from justice, and be found in this territory, must, on
demand of the executive authority of the state or territory from
which he fled, be delivered up by the governor of this territory, to be
removed to the state or territory having jurisdiction of the crima

§ 584. Magistrate to issue warrant,] A. magistrate may issue a
warrant for the apprehension of a person so charged, whb shall flee
from justice, and be found within this territory.

§ 585. Proceedings.] The proceedings for the arrest and oamimit-
ment of a person charged, are in all respects similar to those provided
in this code for the arrest and commitment of a person charged with
a public offense committed in this territory. Except that an exem-
plified copy of an indictment found, or other judicial proceedings had
against him in the state or territory in which he is charged to < have
committed the offense, may be received as evidence before the mag*
istrate,

§ 586. Committed for reasonable time.] If^ from the exanunation,
it appear that the person charged has committed the crime alleged^
the magistrate, by warrant reciting the accusation, must commit him
to the proper custody for a time specified in the warrant, which the
magistrate deems reasonable, to enable the arrest of the fugitive under
the warmnt of the executive of this territory, on the requisition of
the executive authority of the state or territory in which he committed

JCJLm

Criminal Procedure. MisosiXAKEOtre. 879

the ofi^Bnse, unless he give bail, as provided in the next section, or until
he be legally discharged.

g 587. Admission to bail.] The magistrate may admit the person
arrested to bail by an undertaking, witti sufficient sureties, and in such
sum as he deems proper, for his appearance before him at a time
specified in the undertaking, and for his surrender to be arrested upon
the warrant of the governor of this territory.

§ 588. Notice to district attorney.] Immediately upon the arrest
of the person charged, the magistrate must give notice to the district
attorney.

§ 589. DcTTY OF district attorney.] The district attorney must
immediately thereafter, give notice to the executive authority of the
state or territory, or to the prosecuting attorney or presiding pdge of
the criminal court of the city or county therein, having jurisdiction of
the offense, to the end that a demand may be made for the arrest and
surrender of the person charged.

§ 590. Discharged, unless.] The person arrested must be discharged
from custody or bail, unless before the expiration of the time desig-
nated in the warrant or undertaking, he be arrested under the warrant
of the governor of this territory.

§ 591. Maoistratb to return proceedings.] The magistrate must
return his proceedings to the next district court of the county, which
must thereupon inquire into the Cause of the arrest and detention of
the person charged, and if he be in custody, or the time for his arrest
have not elapsed, it may discharge him from detention, or may order
his undertaking of bail to be canceled, or continue his detention for a
longer time, or re^admit him to bail, to appear and surrender himself
within a time specified in the undertaking.

§ 592. Accounts for foreign arrests.] When the governor shall
demand from the executive authority of a state or territory of the
United States, or of a foreign government, the surrender to the
authorities of this territory, of a fugitive from justice, the accounts of
the person employed by him for that purpose must be paid out of the
territorial treasury.

§ 593. No COMPENSATION ALLOWED.] No Compensation, fee, or reward
of any kind, can be paid to, or received by a public officer of this
territory, for a service rendered or expense incurred in procuring from
the governor the demand mentioned in the last section, or the surren-
der of the fugitive, or for conveying him to this territory, or detaining
him herein, except as provided in section 592.

§ 594. Misdemeanor.} A violation of the last section is a misde-
meanor.

CHAPTER XII.

dismissal of the action before or a#ter indictment for want of

prosecution or otherwise.

§ 595. No nrDiOTMEKT.] When a person has heen held to answer
for a public offense, if an indictment is not found against him at the
next term of the court at which he is held to answer, the court must

-J-

880 Mi8CSLLAjrBO08. Criminal Procedure.

order the prosecution to be dismissed^ unless ((ood cause to the contrary
be shown.

§ 596. Whbn not brought to trial.] If a defendant^ prosecuted
for a public offense, whose trial has not been postponed upon his appli-
cation, is not brought to trial at the next term oi court m which the
indictment is triable after it is found, the court must order the
prosecution to be dismissed, unless good cause to the contrary be
shown.

§ 597. Court may ordbr continuance.] If the defendant is not
prosecuted or tried, as provided in the last two sections, and sufficient
reason therefor is shown, the court may order the action to be con-
tinued from term to term, and in the meantime may dischsut^e the
defendant from custody, on his own undertaking, or on the undertaking
of bail for his appearance to answer the charge at the time to which
the action is continued,

§ 598. Action dismissed.] If the court direct the action to be dis-
missed, the defendant must, if in custody, be discharged therefrom, or
if admitted to bail, his bail is exonerated, or money deposited instead
of bail must be refunded to him.

'§ 599. Reasons for dismissal in order,] The court may, either of
its own motion or upon the application of the district attorney, and in
furtherance of justice order an action or indictment to be dismissed;
but in that case the reasons of the dismissal must be set forth in the
order, which must be entered upon the minutes.

§ 600. Nolle prosequi abolished.] The entry of a nolle prosequi
is abolished, and the district attorney cannot discontinue or abandon
a prosecution for a public offense, except as provided in the last
section.

§ 601. Dismissal not a bar.] An order for the dismissal of the
action, as provided in this chapter, is not a bar to any other prosecution
for the same offense.

CHAPTER XIII.
general provisions and definitions applicable to this C01>E.

k

§ 602. Rule of construction.] The rule of common law that, penal
statutes are to be strictly construed, has no application to this code.
This code establishes the law of this territory respecting the subjects
to which it relates, and its provisions and all proceedings under it are
to be liberally construed, with a view to promote its objects, aj;id in
furtherance of justice.

§ 603. Code not retroactive.] No part of this code is retroactive
unless expressly so declared.

§ 604. Construction of words.] Unless when otherwise provided,
words used in this code in the present tense include the future as well
as the present. Words used in xhe masculine comprehend as well the
feminine and neuter. The singular number includes the plural, and
the plural the singular. And the word person includes a corporation
as well as a natural person.

§ 605. Writing.] The term writing includes printing.

Criminal Procedure. Jails. ^^

§ 606. Oath.] The term oath includes an affirmation.

§ 607. What signature inclubes.] The term signature includes a
mark when the person cannot write, his name being written near it, and
the mark being witnessed by a person who writes his own name as a
witness, except to an affidavit or deposition, or a paper executed before
a judicial officer, in which 'case the attestation of the officer is suf-
ficient.

§ 608. To WHAT CODE APPLIES.] This code applies to criminal actions
and to all other proceedings in criminal cases which are herein pro-
vided for, from the time vmen it takes effect.

§ 609. Effect upon actions commenced.] All modes of procedure
in criminal actions heretofore enacted in this territory having relation
to aiiy matters herein provided for shall, upon the takingeffect of this
code, be entirely abrogated, and from thence abolished; rrovided^ how- ^
ever. That all proceedings of every kind or character whatsoever,
commenced before the taking effect of this code, shall not, by reason
of anything in this code contained, be deemed to have abated; Pro-
vided. That this code shall not be construed as repealing the procedure
in justices' courts in cases in which they have lawful onginal jurisdic-
tion; And provided' further, That this code shall not be construed as
repealing an act entitled " An act respecting grand and petit jurors of
the district courts," approved December 24, 1§67.

§ 610. Common law when code silent.] That from and after the
taking effect of this act, the procedure, practice, and pleadings in the
district courts of this territory, in criminal actions, or in matters of a,
criminal nature, not specifically provided for in this code, shall be in
accordance with the procedure, practice, and pleadings of the common
law, and assimilated as near as may be with the procedure, practice,
and pleadings of the United States or federal side of said courts.

§ 611. When to take effect.] This act shall take effect at noon
on the tenth day of March, A. D., one thousand eight hundred and
seventy-five.

Approved January 15, 1875.

*

KoTE.— The foregoing code is printed as amended by the act approved February 16, 1877, in
sections 9, 19, 402, 422, 426, and 952 to 500, both inclusive, also by inserting the words "Territory
of Dakota" in place of the "people of this territory" or ttie like corresponding phrases.

CHAPTER XIV.

JAILS.
AN ACTT for the Regulation of County Jails. [Chapter XLVIII, Laws of 18G2.]

§ 612. Judges pbescribe rules for jails.] Be it enacted by the
Legislative Assembly of the Territory of Dakota : The judges of the
district courts of the several judicial districts of this territory, shall
from time to time, as they may deem necessary, prescribe, in writing,
rules for the regulation and government of the jails in the several
counties within their respective districts, upon the following subjects:

1. The cleanliness of the prisoners.

56

88p Jails. Criminal Procedure.

2. The classification of prisoners in regard to sex, age, and crime,
and also persons insane, idiots, and lunafics.

3. Beds and clothing.

4. Warming, lighting, and ventilation of the prison.

5. The employment of medical and suirgical aid when necessary.

6. Employment, temperance, and instruction of the prisoners.

7. The supplying of each prisoner with a bible.

8. The intercourse between prisoners and their counsel and other
persons.

9. The punishment of prisoners for violation of the rules of the
prison.

10. Such other regulations as said judges may deem necessary to
promote the welfare of said prisoners; Provided, That such rules shall
not be contrary to the laws of this territory.

§ 613. How PROMULGATED AND PRESERVED.] The Said judges shall,
£is soon as necessary, cause a copy of said rules to be delivered to the
county commissioners in the several counties in their respective
judicial districts; and it shall be the duty of said commissioner forth-
with to cause the same to be printed, and to furnish the sheriff of
their county with a copy of said rules, for each and every room or cell
of said jail, and also to forward a copy of said rules to the secretary
of the territory, who may file away and preserve the same.

§ 614. Duty op sheriff.] The sheriff shall, on the receipt of said
rules, cause a copy thereof to be posted up and continued in some
conspicuous place in each and every room or cell of said jail.

§ 615, Judges may amend rules.] The judges aforesaid may, from
time to time, as they may deem necessary, revise, alter, or amend
said rules, and such revised rules as shall be printed and disposed of
by said commissioners and sheriff, in the ^same manner as' is directed
by sections 613 and 614 of this act.

§ 616.^ Sheriff has charge of jail.] ThlB sheriff, or, in case of his
death, removal, or disability, the person by law appointed to supply his
place, shall have charge of the county jail of his proper county, and
of all persons by law confined therein, and such sheriff or other
officer is hereby required to conform, in all respects, to the rules and
directions of said district judge above specified, or which may
from time to time, by said judge, be made and communicated to him
by said commissioners.

§ 617. Sheriff to keep jail REGfisTEE.] The sheriff or other
officers performing the duties of sheriff of each county in this terri-
tory, shall, as soon as necessary after the passage of this act, procure,
at the expense of the proper county, a suitable book, to be called the
jail register, in which the said sheriff, by himself or his jailer, shall
enter:

1. The name of each prisoner T^ith the date and cause of his or her
commitment.

2. The date or manner of his or her discharge.

3. What sickness, if any, has prevailed in the jail during the year,
and if known, what were the causes of such disease.

4. Whether any, or what labor has been performed by the prisoners,
and the value thereof.

Criminal Procedure. ' Jailb. 883

5. The practice observed during the year, of whitewashing and
cleaning the occupied cells or apartments, and the times and seasons
of so doing.

6. The habits of the prisoners as to personal cleanliness, diet, and
order.

7. The means furnished prisoners of literary, moral, and religious
instruction, and of labor.

8. All other matters required by said rules, or in the discretion of
such sheriif deemed proper; that the said sheriff or other officers per-
forming the duties of sheriff, shall carefully keep and preserve the said
jail register, in the office of the jailer of his proper county, and at the
expiration of said office, shall deliver the same to his successor in
omce.

§ 618. Sheriff to make jail report.] The sherifl^ or other officer

Serforming the dhties of sheriff, shall, on or before the first Mon-
ay of November in each year, make out in writing, from said jail
register, a jail report, one copy of which said report he shall forthwith
file in the office of the clerk of the district court of the proper dis-
trict, one copy with the county clerk of his county, for the use of the
commissioners thereof, and one copy of said report he shall transmit
to the secretary of the territory, and it shall be the duty of the secre-
tary of the territory to communicate the reports of the several sheriffs
of this tei-ritory to the legislative assembly, on or befor6 the tenth day
of its session annually.

§ 619. Charge to grand jury.] It shall be the duty of the district
court to give this act in charge of the grand jury once each term of
said court, and lay before them any and all rules, plans, and regula-
tions, established by the district judge, relating to county jails and
prison discipline, which shall then be in force.

g 620. Grand jury visit jail and report.] That the grand jury
of each county in this territory shall, once at each term of tne district
court, while in attendance, visit the jail, examine its state and condi-
tion; examine and inquire into the aiscipline and treatment of pris-
oners, their habits, diet, and accommodations, and it shall be their
duty to report to said court in writing, whettier the rules of the said
district jud^e have been faithfully kept and observed, or whether any
of the provisions of this act have been violated. It shall also be the
duty of the county commissionei's of each county of this territory to
visit the jail of their county once during each of their regular meet-
ings of each year.

1 621. Duty of county board in relation to jails.] It shall be the
duty of the county commissioners, at the expense of their respective
counties, to provide suitable means for warming the jail, and its cells
or apartments, beds and bedding, night buckete, and such other per-
manent fixtures and repairs as may be prescribed by the said district
judge; said commissioners shall also have power to appoint a physi-
cian to the jail, when they may deem it necessary, and pay him such
annual or other salary as they may think reasonable and proper, which
salary shall be drawn out of the county treasury; and said medical
officer, or any physician, or surgeon, who may be employed in the jail,
shall make a report in writing whenever required by said commis-
sioner, district judge, or grand jury.

S84 PeisOns. Criminal Procedure.

§ 622. Sheriff p&ovides board and necessaries.] It shall be the
duty of the sheriflF of each county to provide, /r^f [fuel], bed clothing,
washing, nursing, when required, and board generally, and all neces-
saries for the comfort and welfare of said prisoners, as the said judge
by his said rules shall designate, for all persons confined by hiw, and
he shall be allowed such compensation for services required by the
provisions of this act, as may be prescribed by the county commissioners
of their respective counties.

§ 623. Sheriff to visit jail, when.I The sheriff shall visit the jail
in person, and examine into the condition of each prisoner, at least
once each month, and once during each term of the district court; and
it is hereby made his duty to cause all the cells and rooms used for
the confinement of prisoners, to be thoroughly whitewashed at least
three times in each year.

§ 624. Jailer to be deputy sheriff.) The jailer or keeper of the
jail shall, unless the sheriff elect to act as jailer in person, be a deputy
appointed by the sheriff', and such jailer shall take the necessary oaths
before entering upon the duties of his office; Provided, The sheriff
shall, in all cases, oe liable for the negligence and misconduct of the
jailer as of other deputies.

§ 625. If sheriff or jailer refuse —penalty.] If the sheriff" or
jailer, having in charge any county jail, shall neglect or refuse to con-
form to all or either of the rules and regulations established by said
judge, or to any other duty or duties required of him by this act, he
shall, on conviction thereof by indictment, for each case of such
failure or neglect of duty as aforesaid, pay into the county treasury of
the proper county, for the use of such county, a fine not less than ten
dollars, nor more than one hundred dollars, to be assessed by the dis-
trict court of the proper district.

§ 626. Effect.] This act shall take effect and be in force from and
after its passage.

Approved, May 8, 1862.

CHAPTER XV.

prisons and imprisonment for offenses.

[Chapter XXXIIL Laws of 1862-3.]

§ 627. Common jails used as prisons.] The common jails now
erected, or which shall hereafter be erected, in the several counties in
the charge of the respective sheriflfe, shall be used as prisons:

1. For the detention of persons charged with onenses, and duly
committed for trial.

2. For the detention of persons who may be duly committed to
secure their attendance as witnesses on the trial of any criminal cause.

3. For the confinement of persons pursuant to a sentence, upon a
conviction for an oflfense, and of all otner persons duly committed for
any cause authorized by law.

Crimitml Procedure. Prisons. 885

4. For the confinement of persons who may be sentenced to impris-
onment in the territorial prison, until a suitable prison shall be
provided.

§ 628. When no jail in county.] Whenever there is no jail ere<Jted
in any county, every judicial or executive officer of such county who
shall have power to order, sentence, or deliver any person to the county
jail, maj'^ order, sentence, or deliver such. person to the jail of any
adjoining county; and if there is no jail erected in any adjoining
county, then to either of the forts or garrisons in the territory, with
the consent of the commanding officer of the s^-ncie; and the jailer of
any such adjoining county shall receive and keep such prisoner in the
same manner as if he had been ordered, sentenced, or delivered to him
by any officer or court of his own county. The county from which
such prisoner was taken, shall pay all the expenses of keeping and
maintaining him in said jail.

§629. Expenses OF — how paid — limitation.) All charges and
expenses for safe keeping and maintaining convicts who have been
sentenced to confinement in the territorial prison shall be paid out of
the treasury of the territory yearly, the accounts of the keeper being
first allowed by the board of county commissioners of the county
where the convict shall be confined; and the expenses of safe keeping
and inaintaining persons charged with offenses, and duly committed
for trial, and of those who are sentenced to confinement in the county
jail, or who may be committed for the non-payment of any fine, shall
be paid out of the treasury of the county, the account of the keeper
being in like nianner allowed by the board of county commissioners;
Provided, That the territory, nor any county, shall ever pay more than
two and a half dollars a week for the support of any person as
aforesaid.

§ 630. Commissioners inspectors of prisons.] The county commis-
sioners in the several counties shall be inspectors of the prisons in
their respective counties, and shall visit them at least once in each year,
and shall examine fully into the condition of such prison, as to health,
cleanliness, and discipline; and the keeper thereof shall lay before them
a calendar setting forth the name, age, and cause of committal of each
prisoner; and if it shall appear to the said inspectors that any of the
provisions of law have beeil violated or neglected, they shall forthwith
give notice to the district attorney of the county.

§ 631. No LIQUOR TO prisoners.] No sheriff, jailer, or keeper of any
prison, shall, under any pretense, give, sell, or deliver, to any person
committed to any prison, for any cause whatever, any spirituous
liquor, or any mixed liquor, part of which is sjjirituous, or any wine,
cider, or strong beer, unless a physician shall certify in writing, that
the health of such prisoner requires it, in wliich case he may be
allowed the quantity i>rescribed, and no more. And no sheriff, jailer,
or keeper, as aforesaid, shall put up, or keep in the same room, male
and female prisoners together. •

§ 632. Penalty — sexes sepbrate.] If any sheriff, jailer, or keeper,
of any prison, shall sell or deliver to any prisoner in his custody, or
shall willingly or negligently suffer any such prisoner to have any
liquor, prohibited in section 631 of this chapter, or shall place or keep
together prisoners of different sexes, contrary to the provisions of

886 Prisons. Criminal Procedure.

said section 631,. he shall in each case forfeit and pay for the first
offense the sum of twenty-five dollars, and such officer shall, on a sec-
ond conviction, be further sentenced to be incapable of holding the
office of sheriff, deputy-sheriff, jailer, or keeper of any prison, for the
term of five years.

§ 633. Liquor by other persons.] If any person, other than is
mentioned in the preceding section, shall sell or deliver to any person
committed for any cause whatever, any liquor, prohibited in this chap-
ter, or shall have in his possession in the precincts of any prison, any
such liquor, with intent to carry or deliver the same to any prisoner
confined therein, he shall be punished by fine not exceeding fifteen
dollars.

§ 634. Prison KEPT CLEANLY.] The keeper of such prison shall see
that the same is constantly kept in a cleanly and healthful condition,
and shall see that strict attention is constantly paid in the personal
cleanliness of all the prisoners in his custody, as far as may be, and
shall cause the shirt of each prisoner to be washed at least once in
each week; each prisoner shall be furnished daily with as much clean
Water as he shall have occasion for, either for drink or for the purpose
of personal cleanliness, and with a clean towel once a week, and shall
be served three times each day with wholesome food, which shall be
well cooked and in sufficient quantity.

§ 635. Bible furnished each prisoner.] The keeper of each prison
shall provide, at the expense of the county, for each prisoner under
his charge, who may be able and desirous to read, a copy of the bible,
or new testament, to be used by such prisoner at proper seasons during
his confinement, and any minister of the gospel, disposed to aid in
reforming the prisoners, and instructing them in their moral and
religious duties, shall have access to them at seasonable and proper
times.

§ 636. Calendar op all persons committed — contents.] The
sheriffs of the respective counties shall keep a true and exact calendar,
or register of all persons committed to any prison under their care,
and the same shall be kept in a book, to be provided by the county for
that purpose; said calendar shall contain the names of all persons who
shall be committed to prison, the places of abode, the time of their
commitment; shall state the cause of their commitment, and the
authority that committed them, and if they are committed for crim-
inal offenses, shall contain a description of their persons; and when
any prisoner shall be liberated, said calendar shall state the time
when, and the authority by which such liberation took place; and if
any prisoner escapes shall also state particularly the time and manner
of said escape.

§ 637. Sheriff to furnish court with copy of calendar.] At the
opening of each session of the district court, within his county, the
sheriff shall return a copy of said calendar under his hand, to the
judge holding said court; and if any sheriff shall neglect or refuse so
to Qo, he shall be punished by nne not exceeding three hundred
dollars.

§ 638. Jails — how constructed.] In the jails erected, or which
shall be hereafter erected in this territory, there shall be provided
sufficient and convenient apartmente for confining prisoners not crim-

Criminal Procedure. Prisons. 887

inal, separate from felons and other criminals, and also for confining
persons of different sexes, separate and apart from each other.

§ 689. Solitary imprisonment.] Whenever any person shall be
duly sentenced to solitary imprisonment ind confinement at hard
labor, in the territorial prison, or either of' thein, the sheriff of the
proper county is required to execute such sentence of solitary imprison-
ment until a suitable territorial prison shall be provided, by confining
such convict in one of the cells of the jail, or if there be no such cell,
then in the most retired and solitary part of the jail, and during the
time of such solitary imprisonment, the convict shall be fed with
bread and winter only, unless other food shall be necessary for the
preservation of his health; and no intercourse shall be allowed with
such convict during such confinement, except for the conveyance of
food and other necessary purposes.

§ 640. Imprisonment at hard labor.] Whenever any person shall
be confined in any jail pursuant to the sentence of any court, if such
sentence or any part thereof shall be that he be confined at hard
labor, the sheriff of the county in which such person shall be confined,
shall furnish such convict with suitable tools and materials to work
with, if in the opinion of the said sheriff, the said convict can be
profitably employed, either in the jail or yard thereof, and the expense
of said tools and materials shall be defrayed by the county in which
said convict shall be confined, and said county shall be entitled to his
earnings. tSU- % b «A A^ 1 9

§ 641. Keeper order solitary confinement.] Whenever any
person committed to prison for any cause whatever, shall be unruly,
or shall disobey any of the regulations established for the manage-
ment of prisons, the sheriff or Keeper may order such prisoner to be
kept in solitary confinement and fed on bread and water only, as is
provided in section 639 of this chapter, for a period not exceeding
twenty days for each offense.

§ 642. Bedding, fuel, <fcc.l The keeper of each prison shall furnish
necessary bedding, clothing, and fviel, and medical aid for all prisoners
who shall be in his custody, and shall be paid therefor according to
the provisions of section 629 of this chapter, and such payment shall
be deducted from the sum he is entitled to receive for the weekly
support of the prisoner, according to the i}rovisions of section 629.

I 643! Penalty for breaking prison.] If any person who may be
in any prison, under sentence of imprisonment in the territorial
prison, snail break the prison and escape, he shall be punished by
imprisonment in the territorial prison for the terni of one year, in
addition to the unexpired term mr which he was originally sentenced.

§ 644. Same for person not convicted.] If any person who may
be imprisoned pursuant to a sentence of imprisonment in the county
jail, or any person who shall be committed for the purpose of detain-
ing him for trial, for any offense not capital, shall break prison and
escape, he shall be imprisoned in the county jail for the term of six
months.

§ 645. Same committed for capital offense.] If any person who
shall be committed to prison, for the purpose of detaining him for
trial for a capital offense, shall break prison and escape, he shall be
imprisoned in the territorial prison for the term of two years.

888 Prisons. Criminal Procedure.

§ 646. Prisoners in case of fire.] If any prison, or any building
thereto, shall be on fire, and the prisoners shall be exposed to danger
by such fire, the keeper may remove such prisoners to a place of safety,
and there confine them so long as may be necessary to avoid such
danger, and such removal and confinement shall not be deemed an
escape of such prisoners.

§ 647. Held for fines and costs.] When any jpoor convict shall
have been confined in any prison for the space of six months, for the
non-payment of fines and costs only, or either of them, the sheriflF of
the county in which such person shall be imprisoned, shall make a
report thereof to any two justices of the peace for such county; if
required by such justices, the said keeper shall brin^ such convict before
them, either at the prison or at such other convenient place thereto as
they shall direct, the said justices shall proceed to inquire into the
truth of said report, and if they shall be satisfied that such report is
true, and the convict has not had since his conviction, any estate,
real or personal, with which he could have paid the sum for the non-
payment of which he was committed, they sha,ll make a certificate
thereof to the sheriff of the county, and direct him to discharge such
convict from prison, and the sheriff shall forthwith discharge him.

§ 648. Sheriff to receive prisoners,] All sheriffs, jailers, prison-
keepers, and their, and each and every, of all their deputies, within
this territory, to whom any person or persons shall be sent or com-
mitted, by virtue of le^al process, issued by or under the authority of
the United States, shall be and they are hereby enjoined and required to
receive such persons into custody and to keep them safely until they
be discharged by due course of the laws of the United States;
and all such sheriffs, jailers, prison-keepers and their deputies,
offending in the premises, shall be liable to the same pains and penal-
tieSj and the parties aggrieved shall be entitled to the same remedies
against them, or any of them, as if such prisoners had been committed
to their custody by virtue of legal process issued under the authority
of this territory.

§ 649. Pay for keeping same.] The United States shall be liable
to pay for the support and keeping of said prisoners, the same charges
and allowances as are allowed tor the support and keei)ing of prisoners
committed under authoritj'^ of this territory.

§ 650. Calendar of same.] Before every stated term of the United
States court, to be held within this territory, the said sheriffs, jailers,
and prison-keepers shall make' out, under oath, a calendar of prisoners
in their custody, under the authority of the United States, with the
date of their commitment, by whom committed, and for what offense,
and transmit the same to the judge of the district court of the United
States, for this district, and at the end of every six months they shall
transmit to the United States marshal of this territory, for allowance
and payment of their account, if any, against the United States, for
the support and keeping of such prisoners aforesaid.

§ 651. Prisons required in every county.] That there shall be
established and kept in every county, by authority of the board of
county commissioners, and at the expense of the county, a prison for
the safe keeping of prisoners lawfully committed.

Criminal Procedure. Prisons. 889

§ 652. Gband juries to examine prisons.] That the grand jury, at
each term of the district court, shall make personal inspection of the
condition of the county prison, as to the sufficiency of the same for
the safe keeping of prisoners, their convenient accommodation and
health, and shall inquire into the manner in which the same has been
kept since the last term ; and the court shall give this duty in special
charge to such grand jury, and it shall be imperative upon the Doard
of county commissioners to issue the necessary orders, or cause to be
made the necessary repairs, in accordance with the complaint or
recommendation of the grand jury.

§ 653. Sheriffs or deputies keep jail.] The sheriff of the county,
by himself or deputy, shall keep the jail, and shall be responsible for
the manner in which the same is kept. He shall keep separate rooms
for the sexes, except where they are lawfully married; he shall pro-
vide proper meat, drink, and fuel for prisoners.

§ 654. Keeping paid by county.] Whenever a prisoner is com-
mitted for crime, or in any suit in behalf of the territory, the county
board shall allow the sheriff his reasonable charge for supplying such .
prisoner.

§ 655. Sheriff's authority.] When a prisoner is confined by
virtue of any process directed to the sheriff, and which shall require
to be returned to the court, whence it issued, such sheriff shall keep a
copy of the same, together with his returns made thereon, which
copy, duly certified by such sheriff, shall be prima facie evidence of his
right to retain such prisoner in custody.

§ 656. Commitments filed by sheriff.] All instruments of every
kind, or attested copies thereof, by which a prisoner is committed or
liberated, shall be regularly indorsed and filed, and safely kept in a
suitable box by such sheriff, or by his deputy, acting as a jailer.

§ 657. Deliver to successor.] Such box, with its contents, shall
be delivered to the successor of the officer having charge of the prison.

§ 658. Jail of another county.] When there is no sufficient prison
in any county wherein any criminal offense shall have been committed,
any jud^e of the district court of such county, upon application of
the sheriff, may order any person charged with a criminal offense, and
ordered to be committed to prison, to be sent to the jail of the county
nearest having a sufficient jail, and the sheriff of such nearest county
shall, on exhibit of such judge's order, receive and keep in custody, in
the jail of his county, the prisoner ordered to be committed fis afore-
said, at the expense of the county from which said- prisoner was sent,
and the said sheriff shall, upon the order of the district court, or a
judge thereof, re-deliver such prisoner when demanded.

§ 659. Fugitive in any county jail.] Any county jail may be used
for the safe keeping of any fugitive from justice or labor in this terri-
tory, in accordance with the provisions of any act of congress, and
the jailer shall, in this case, be entitled to reasonable compensation
for the support and custody of such fugitive from the officer having
him in custody.

§ 660. Juvenile prisoners.] Juvenile prisoners shall be treated
with humanitv, and in a manner calculated to promote their reforma-
tion; they shall be kept, if the jail will admit of it, in apartments
separate from those containing more experienced and hardened

890 Convicts. Criminal Procedure.

criminals; the visits of parents, guardians, and friends who desire to
exert a moral influence over them, shall at all reasonable times be
permitted.

§ 661. Conflicting acts rei^ealed.1 All acts or parts of acts incon-
sistent with this act, are hereby repealed.

§ 662. Effect.] This act shall take effect from and after its passage
and approval.

Approved, January 9, 1863.

CHAPTER XVI.

CONVICTS.
AN ACT to Piovide for the Custody of Convicts. [Chapter IX, Laws of 1870-1.]

§ 663. Governor authorized to contract.] Be it enacted by the
Legislative Assembly of the Territory of Dakota^ That the governor
is authorized, and it is hereby made his duty, to enter into a contract
with the proper authorities of the state of Iowa, to keep and
maintain any convict or convicts now under conviction, or that
may hereafter be convicted and sentenced by any of the district
courts of this territory, for violation of the laws thereof, during the
time for which said convict or convicts may have been sentenced by
courts or either of them, upon the terms most advantageous to the
territory that he can obtain.

§ 664. Prison for territory designated.] That the state prison
or penitentiary located at Fort Madison, in the state of Iowa, shall be
regarded and recognized as the territorial prison of the Territory of
Dakota, and all persons who are now, or who may be hereafter, under
conviction for any oflFense against the laws of the Territory of Dakota,
the penalty whereof is punishment by imprisonment in the territorial
prison, shall be sentenced to the state prison of the said state of Iowa,
and such sentence shall be as legal in all respects as if such person or
persons had been sentenced to a territorial prison within the limits of
the Territory of Dakota; Provided, however, That the governor may,
whenever the interests of the territory require it, annul and cancel the
contract with the said state of Iowa, and enter into a new contract
with the authorities of any other neighboring state to keep and main-
tain the convicts of this territory; And provided further, That should
the said state of Iowa annul or cancel the said contract or agreement
entered into with this territory, then in that case the governor is
authorized, and it is hereby made his duty to enter into a contract
upon the most favorable terms possible with the authorities of some
other neighboring state to keep and maintain the convicts from this
territory, and in either case, wnen the governor shall contract with
any other neighboring state to keep and maintain the convicts of this
territory, it shall be his duty to immediately notify the auditor and
the several judges of the district courts of this territory, of the nature
of said contract, and the location of the prison of said state, and after
receiving such notification it shall be lawful for the said district
judges to sentence persons convicted in their several courts, when the

Criminal Procedure. Convicts. 891

punishment to be inflicted is imprisonment in the territorial prison, to
the prison designated by the governor as the one located in the state
with whom he nas made such contract, and all the provisions of this
act shall in such case apply as fully and completely to the sentence
and transportation of convicts to such prison as it does by virtue of
this act to the state prison of Iowa.

§ 665. Sheriffs to convey convicts.] That the sheriff of each
county within this territory shall, at the close of each term of the dis-
trict court in such county, convey all persons who may have been
convicted of offenses f)unishable by imprisonment in the territorial
prison, and sentenced in accordance with the provisions of this act to
the said state prison of the state of Iowa, and he shall receive from
the territorial treasury, for services in going to and returning from
such prison, including all expenses by him incurred, at the rate of ten
cents per mile for each and every mile actually and necessarily trav-
eled in going to and returning from said prison; Provided, however^
That when more than one convict is taken at the same time, the sheriff
shall receive in addition to ten cents per mile, all necessary expenses ^
incun-ed in the way of fare and hiring help for the safe conveyance of
said extra convicts.

§ 666. Penalty for violation.] Should any sheriff fail to take all
convicts at the same time to the said prison which may have been
convicted at any one term of court as herein provided, or shall he
knowingly demand or receive greater compensation than is expressly
given herein by the preceding section, he shall be guilty of a misde-
meanor, and upon conviction by any court having competent juris-
diction, shall be fined in any sum not less than twenty-five, nor more
than five hundred dollars for each offense.

§ 667. Sheriff's report to auditor.] It shall be the duty of every
sherifi' who shall have Conveyed any convict or convicts, to the said
prison at Fort Madison, or other prison designated by the governor in
Accordance with the provisions oi section 664 of this act, to immedi-
ately notify the auditor of the territory, in writing, of the exact date
that said convict or convicts were received by the authorities of said
prison, and a neglect of this duty by any sheriff of this territory,
shall render him liable upon conviction before the district court
wherein said sheriff shall reside, to a fine of not less than twenty-five,
nor more than two hundred dollars for each and every offense.

§ 668. Accounts of sheriff to be audited.) It shall be the duty of
the auditor to audit all accounts presented by the sheriffs of the differ-
ent counties of this territory, for services rendered under the provisions
of this act in conveying convicts to the state prison, at Fort Madison,
Iowa, or other prison designated by the governor as aforesaid -when
verified by the affidavit of such sheriff, that he actually and necessarily
traveled the distance, and rendered the services stated in his said
account, and to draw a warrant on the territorial treasurer for the
amount found due such sheriff for such services rendered.

§ 669. Same for maintenance of convicts.] It shall be the duty ot
the auditor to audit all accounts presented by the authorities of the
said state of Iowa, or other stat6 designated by the governor, as the one
with whom he has contracted for keeping and maintaining the con-
victs of this territory, Under such regulations as he may prescribe,

892 Habeas Corpus. Criminal Procedure.

and to draw his warrant or warrants on the territorial treasurer for
the amount or amounts found due said state.

§ 670. Effect.] This act shall take eflFect and be in force from and
after its passage and approval.

Approved, December 14, 1870.

CHAPTER XYIL

HABEAS CORPUS.
AN ACT Regulating the Proceedings on Habeas Corpus. [Chapter XLIV. Laws of 186»-4>.]

§ 671. Application for — issue and service op writ.] Be it
enacted by the Legislative Assembly of the Territory of Dakota: If any
person shall be committed or detained for any criminal or supposed
criminal matter, it shall and may be lawful for him to apply to the
supreme or district court, in term time, or any judge thereof in vaca-
tion, for a writ of habeas corpus, which application shall be in writinff,
and signed by the prisoner or some person on his behalf, setting fortJQ
the facts concerning his imprisonment, and in whose custody he is
detained, and shall be accompanied by a copy of the warrant or war-
rants of commitment, or an affidavit that the said copy has been
demanded pf the person in whose custody the prisoner is detained, and
by him refused or neglected to be given. The said court or judge to
whom the said application shall be made, shall forthwith award the
said writ of habeas corpus, unless it shall appear from the petition
itself, or from the document annexed, that the party can neither be
discharged nor admitted to bail, nor in any other manner relieved,
which said writ, if issued by the court, shall be under the seal of the
court; if by a judge, under the hand of the jud^e, and shall be directed
to the person in whose custody the prisoner is detained, and made
returnable forthwith, to the intent that no officer, sheriff, jailer, keeper,
or other person, to whom such writ shall be directed, may pretend
ignorance thereof. Every such writ shall be endorsed with these
words, "by the habeas corpus act," and whenever the said writ shall,
by any person, be served upon the sheriff, jailer, or keeper, or other
person whatsoever, to whom the same shall be directed, or being
brought to him, or being left with any of his under officers or deputies,
at the jail or place wnere the prisoner is detained, he, or some of
his under officers or deputies, shall, upon payment or tender of the
charges of bringing said prisoner, to be ascertained by the court or
judge awarding the said writ, and indorsed thereon, not exceeding
fifteen cents per mile, and upon sufficient security given to pay the
charges carrying him back, if he shall be remanded, make return of
such writ, and bring or cause to be brought, the body of the prisoner,
before the court or judge who granted the writ, or incase of the adjourn-
ment of the said court, or absence of the judge, then before any of the
judges aforesaid, and certify the true cause of his imprisonment, within
three days thereafter, unless the commitment of such person be in a
place beyond the distance of twenty miles Jfrom the place where the

Criminal Procedure. Habbaa Corpus. * 893

writ is returnable; if beyond the distance of twenty miles, and not
above one hundred miles, then within ten days, and if beyond the dis-
tance of one hundred miles, then within twentydaysafber the delivery
of the writ as aforesaid, and not longer.

% 672. Person not criminally committed.] When any person, not
being committed or detained for any criminal or supposed criminal
matter, shall be confined or restrained of his or her liberty, under any
color or pretense whatever, he or she may apply for a writ of habeas
corpus as aforesaid. Application shall be in writing, signed by the

Earty or some person on nis behalf, setting forth the facts concerning
is or her imprisonment, and wherein the illegality of such imprison-
ment consists, and in whose custody he or she is detained; which
application or petition shall be verified by the oath or affirmation of
the party applying, or some other person on his or her behalf. If the
connnement or restraint is by virtue of any judicial writ, or process,
or order, a copy thereof shall be annexed thereto, or an affidavit made
that the same has been demanded and refused; the same proceedings
shall thereupon be had in all respects as are directed in the preceding
section.

§ 673. Return of writ — hearing — causes for discharge.] Upon
the return of the writ of habeas corpus, a day shall be set for the
hearing of the cause of imprisonment or detainer, not exceeding five
days thereafter, unless the prisoner shall request a longer time. The
said prisoner may deny any of the material facts set forth in the
return, or may allege any fact to show, either that the imprisonment
or detention is unlawful, or that he is then entitled to his discharge,
which allegations or denials shall be made on oath. The said return
may be amended by leave of the court or iudge before or after the
same is filed, as also may all suggestions made against it, that thereby
material facts may be ascertained. The said court or judge shall pro-
ceed in a summary way to settle the said facts by hearing the testimony
and arguments, as well of all parties interested civilly, if any there be,
as of the prisoner and the person who holds him in custody, and shall
dispose of the prisoner as the case may require; if it appears that the
prisoner is in custody by virtue of process from any court legally
constituted, he can be discharged only for some of the following
causes:

1. When the court has exceeded the limit of its jurisdiction, either
as to the matter, place, sum, or person.

2. Where, though the ori^nal imprisonment was lawful, yet by some
act, omission, or event, which has subsequently taken place, the party
has become entitled to his discharge.

3. Where the process is defective in some substantial form required
by law.

4. Where the process, though in proper form, has been issued in a
case, or under circumstances where the laws do not allow process, or
orders for imprisonment, or arrest to issue.

5. When, although in proper form, the process has been issued or
executed • by a person, either unauthorized to issue or execute the
same, or where the person having the custody of the prisoner, under
such process, is not the person empowered by law to detain him.

894 Habbab Corpus. Criminal Procedure.

6. Where the process appears to have obtained by false pretense or
bribery.

7. Where there is no general law, nor any judgment, order, or decree
of a court, to authorize the process, if in a civil suit, nor any convic-
tion, if in a criminal proceeding.

No court or judge, on the return of a habeas corpus, shall, in any
other manner, inquire into the legality, or justice of a judgment, or
decree of a court legally constituted; in all cases where the imprison-
ment is a criminal, or supposed criminal matter, if it shall appear to
the said court or judge that there is suflBcient legal cause for tne com-
mitment of the prisoner, although such commitment may have been
informally made, or without due authoritj^ or the process may have
been informally made, or without due authority, or the process may
have been executed by a person not authorized, the court or judge
shall make a new commitment in proper form, and directed to the
proper officer, or admit the party to bail if the case be bailable.

§ 674. Recognizance with security.] When any person shall be
admitted to bail on habeas corpus, he shall enter into recognizance,
with one or more securities, in such sum as the court or judge shall
direct, having regard to the circumstances of the prisoner, and the
nature of the onense, conditioned for his or her appearance at the
next district court, to be holden in and for the county where the
offense was committed, or where the same is to be tried. Where any
court or judge shall admit to bail, or remand any prisoner brought
before him or them on any writ of habeas corpus, it shall be the duty of
the said court or judge, to bind all such persons as do declare any thing
material to prove the offense with whicn the prisoner is charged, by
recognizance to appear at the proper court having cognizance of
the offense, on the hrst day of the next term thereof, to give evidence
touching the said offense, and not to depart the said court without
leave, wnich recognizance, so taken, together with the recognizance
entered into by the prisoner when he is admitted to bail, shall be
certified and returned to the proper court, on the first day of the
next succeeding term thereof; if any such witness shall neglect or
refuse to enter into a recognizance, as aforesaid, when thereunto
required, it shall be lawful for the court or judge to comuxit him to jail
until he shall enter into such recognizance, or he be otherwise dis-
charged by due course of law; if any judge shall refuse or neglect
to bind any such witness or prisoner by recognizance, when taken as
aforesaid, he shall be deemed guilty of a misdemeanor in office, and be
proceeded against accordingly.

§ 675. Remanding prisoner— second writ.] When any prisoner,
brought up on a writ of habeas Qorpus, shall be remanded to prison,
it shall be the duty of the court or judge remanding him [to make
out and deliver to the sheriff*, or other person to whose custody he shall
be remanded, an order, in writing, stating the cause or causes of
remanding him.] If such prisoner shall obtain a second writ of
habeas corpus, it shall be the duty of such sheriff or other person to
whom the same shall be directed, to return therewith the order afore-
said, and if it shall appear that said prisoner was remanded for any
offense adjudged not bailable, it snail be taken and received as

Criminal Procedure. ' Habeas Coepus. 895

conclusive, and the prisoner shall be remanded without further pro-
ceedings.

§ 676. Power of judge undee second writ.] It shall not be law-
ful for any court or judge, on a second writ of habeas corpus obtained
by such prisoner, to discharge the said prisoner, if he is clearly and
specifically charged in the warrant of commitment with a criminal
offense, but the said comrt or judge shall, on the return of such second
writ, have power only to admit such prisoner to bail, where the
offense is bailable by law, or remand him to prison, where the
offense is not bailable, or where such prisoner shall fail to give the
bail required.

§ 677. Not again committed unless indicted.] No person who has
been discharged by order of a court or jud^e on a nabeas corpus,
shall be again imprisoned, restrained, or kept m custody for the same
cause, unless he oe afterwaLrds indicted for the same offense; nor
unless by the legal order or process of the court wherein he is bound
by recognizance to appear. The following shall not be deemed to be
the same cause.

1. If after a discharge for a defect of proof, or on any material defect
in the commitment^ in a oriminal case, the prisoner should be again
arrested on sufficient proof, and committed by. legal process for the
same offense.

2. If in a civil puit the party has been discharged for any illegality
in the judgment or process, and is afterwards imprisoned by legal pro-
cess for the same cause of action.

3. Generally, whenever the discharge has been ordered on account
of the non-observance of any of the Forms required by law, the party
may be a second time imprisoned, if the cause be legal, and the forms
required by law observed.

§ 678. Want of prosecution — witnesses cannot be had.] If any
person shall be committed for a criminal or supposed criminal matter,
and not admitted to bail, and shall not be tried on or before the second
term of the court having jurisdiction of the offense, the prisoner shall
be let at liberty by the court, unless the delay shall happen on the
application of the prisoner; if such court at the second term shall be
satisfied that the due exertions have been made to procure the evi-
dence for and on behalf of the territory, and that there are reasonable
grounds to believe that such evidence may be procured at the third
term, they shall have power to continue such case till the third term;
if any such prisoner shall have been admitted to bail for a crime other
than a capital offense, the court may continue the trial of said cause
to a thira term, if it shall appear by oath or affirmation that the wit-
nesses for the territory are absent, such witnesses being mentioned by
name, and the court shown wherein their testimony is material.

§ 679. Writ not to delay trial.] To prevent any person from
avoiding or delaying his trial, it shall not be lawful to remove any
prisoner on habeas corpus under this act out of the county in which
he or she is confined, within fifteen days next preceding the term of
the court at which such person ought to be tried, except it be to con-
vey him or her into the county where the offense with which he or she
stands charged is properly cognizable.

896 Habeas Corpus. Criminal Procedure.

§ 680: Removal pbom one place or jail to another.] Any person,
being committed to any prison, or in custody of any officer, sheriff,
jailer, keeper, or other person, or his under officer or deputy, for any
criminal or supposed criminal matter, shall not be removed from the said
prison or custody into other prison or custody, unless it be by habeas
corpus, or some other any legal writ;, or where the prisoner shall be
delivered to the constable, or other inferior officer, to be carried to
some common jail; or shall be removed from one place to another,
within the county, in order to his discharge or trial m due course of
law; or in case of sudden fire, infection, or other necessity; or where
the sheriff shall commit such prisoner to the jail of an adjoining
county for the want of a sufficient jail in his own county, as is-
provided in the act concerning jails or jailers; or where the prisoner,
in pursuance of a law of tne United States, may be claimed or
demanded by the executive of the United States or territories; if any
person shall, after such commitment as aforesaid, make out, sign, or
countersign, any warrant or warrants for such removal, except as
before excepted, then he or they shall forfeit to the prisoner or
aggrieved party, a sum not exceeding three hundred dollars, to be
received by the prisoner, or party aggrieved, in the manner herein-
after mentioned.

§ 681. Penalty ip judge pail or delay writ.] Any judge
empowered by this act to issue writs of habeas corpus, who shall
corruptly refuse to issue such writ, when legally applied to, in 'a case
where such writ may lawfully issue, or who shalj, for the purpose of
oppression, unreasonably delay the issuing of such writ, shall, for
every such offense, forfeit to the prisoner or party aggrieved a sum
not exceeding five hundred dollars.

§ 682. Ofpioer refusing to execute and return.] If any officer,
sheriff, iailer, keeper, or other person to whom any such writ shall be
directea, shall neglect or refuse to make the returns as aforesaid, or
to bring the body of the prisoner according to the command of said
writ within the time required by this act, all and every such officer,
sheriff', jailer, keeper, or other person, shall be deemed guilty of con-
tempt of the court or judge who issued said writ; wnereupon, the
said court o;* 1^^^ niay, and shall issue an attachment against
such officer, sheriff jailer, keeper, or other person, and cause him or
them to be committed to the jail of the county, there to remain with-
out bail or mainprize, until he or they shall obey the said writ; such
officer, sheriff, jailer, keeper, or other person, shall also forfeit to the
prisoner or aggrieved party a sum not exceeding five hundred dollars,
and shall be incapable of holding or executing his said office.

§ 683. Removing or concealing.] Any one having a person in
his custody or under his restraint^ power, or control, tor whose relief
a writ of habeas corpus is issued, who, .with intent to avoid the effect
of such writ, shall transfer such person to the custody, or place him
or her under the control of another, or shall conceal him or her, or
change the place of his or her confinement, with intent to avoid the
operation of such writ, or with intent to remove him or her out of
this territory, shall forfeit for every such offense, one thousand dol-
lars, and be imprisoned not less than one year, nor more than five
years; in any prosecution for the penalty incurred under this section,

Criminal Procedure. Habeas Coepus. 897

it shall not be necessary to show that the writ of habeas corpus had
issued at the time of the removal, transfer, or concealment therein
mentioned, if it be proven that the acts therein forbidden were done
with the intent to avoid the operation of such writ.

§ 684. Copy of commitment to prisoneii.] Any sheriff or his deputy,
any jailer or coroner, having custody of any prisoner committed on a
civil or criminal process of any court or magistrate, who shall neglect
to give such prisoner a copy of the process, order, or commitment, by
virtue of which he is imprisoned, within six hours after the demand
made by said prisoner, or any one on his behalf, shall forfeit five
hundred dollars.

§ 685. Re-arresting for same cause.] Any person who, knowing
that another has been discharged by order of a competent judce or
tribunal on a habeas corpus, shall, contrary to the provisions of this
act, arrest or detain him again for the same cause which was shown on
the return of such writ, shall forfeit five hundred dollars for the first
offense, and one thousand dollars for every subsequent offense.

§ 686. Penalties go to personI All the pecuniary forfeitures under
this act shall inure to the use of the party for whose benefit the writ
of habeas corpus issued, and shall be sued for and recovered, with costs,
in the name of the territory, by every person aggrieved.

g 687. General issue may be pleaded.] In any action or suit for
any offense against the provisions of this act, the defendant or defend-
ants may plead the general issue, and give the special matter in
evidence.

§ 688. No BAR.] The recovery of the said penalties shall be no bar
to a civil suit for damages.

§ 689. Who may issue writ, ac] The supreme and district courts
within this territory, or the judges thereof in vacation, shall have
power to issue writs of habeas corpus, for the purpose of bringing the
body of any person confined in any jail within the same before them,
to testify or be surrendered in discharge of bail. When a writ of
habeas corpus shall be issued for the purpose of bringing into court
any person to testify, or the principal, to he surrendered in discharge
of bail, and such principal or witness shall be confined in any jail m
this territory out of tne county in which such principal or witness is
required to be surrendered, or to any county in this territory, and there
be executed and returned by any ofncer to whom it shall be directed,
and the principal, after being surrendered, or his bail discharged, or a
person testifying as aforesaia, shall, by the officer executing such writ,
I be returned by virtue of an order of the court, for the purpose afore-
said, an attested copy of which, lodged with the jailer, snail exonerate
such jailer from being liable for an escape. The party praying out
such writ of habeas corpus shall pay to the ofiicer e:xecuting the same,
8uch reasonable sum foi;his services as shall be adjudged by the courts
respectively.

§ 690. Effect.] This act shall take effect and be in force from and
after its passage.
Approved, Jlmuary 9, 1863.

57

GENEEAL REPEALING ACT.

AN ACT Declaring Certain Acts Repealed^ and for Other Purp<Met».

§ 1. Acts op first session, 1862. J Be it enacted by the Legislative
Assembly of the Territory of Dakota: The following acts passed at the
first session of the legislative assembly, in the year 1862, are repealed:

Chapters one, two, three, five, six, seven, eight, nine, ten, eleven,
twenty, twenty-three, twenty-five, twenty-six, twenty-seven, twenty-
eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three, thirty-
four, thirty-five, thirty-six, thirty-seven, thirty-eight, thirty-nine, forty,
forty-one. forty-two, forty-three, forty-four, forty-five, forty-six, forty-
seven, forty-nine, fifty, fifty-one, fifty-two, fifty-three, fifty-four,
fifty-five, fifty-six, fifty-seven, fifty-nine, sixty, sixty-one, sixty-two,
sixty-three, sixty-four, sixty-five, sixty-seven, sixty-eight, sixty-nine,
seventy, seventy-one, seventy-two, seventy-nine, eighty, eighty-one,
eighty-two, eighty-three, eighty-four, eighty-five, eighty-six, eighty-
seven, eighty-nine, ninety, and ninety-one.

§ 2. Second session, 1862-3.] The following acts passed at the
second session of the legislative assembly in trie years 1862 8, are
repealed :

Chapters one to thirty-two, inclusive, and chapters thirty-four,
thirty-five, thirty-six. thirty-seven, thirty-eight, forty-five, forty-six,
forty-seven, forty-eignt, forty-nine, fifty-two, fifty-three, fifty-six, and
fifty-seven.

§ 3. Third session, 1863-4.J The following acts passed at the
third session of the legislative assembly in tne years 1863-4, are
repealed :

Chapters one, two, three, six, seven, eleven, sixteen, seventeen*
eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three,
twenty-four, twenty-five, twenty-six, twenty-seven, thirty, forty, forty-
one, and forty-two.

§ 4. Fourth session, 1864-5.] The following acts passed at the
fourth session of the legislative assembly in tne years 1864-5, are
repealed :

Chapters two, three, four, six, seven, ten, eleven, twelve, thirteen,
fourteen, fifteen, seventeen, eighteen, nineteen, twetity. thirty, thirty-
one, thirty-two, and thirty-three.

§ 5. Fifth session, 1866-6,] The following acts passed at the fifth
session of the legislative assembly in the years 1865-6, are repealed:

Chapters one, an act to establish a civil code; two, an act to estab-
lish a justices' code; and chapters three, four, five, six, seven, eight
nine, ten, twelve, thirteen, fourteen, fifteen, sixteen, sevent-een,
eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three,
twenty-four, twenty-five, thirty-one, thirty-two, and thirty-three.

§ 6. Sixth session, 1866-7.] The following acts passed at the sixth
session of the legislative assembly in the years 1866 7, are repealed:

General Repealing Act. 899

Chapters one, two, three, four, eight, nine, ten, eleven, twelve,
thirteen, sixteen, seventeen, eighteen, twenty, and twenty-three.

§ 7. Seventh session, 186y-8.] The following acts passed at the
seventh session of the legislative assembly, in the years 1867-8, are
repealed:

An act to simplify and abridge the practice, pleadings, and proceed-
ings in the courts of this territory, and chapters one, two, three, four,
five, six, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eight-
een, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-
six, twenty-seven, twenty-eighty twenty-nine, thirty, thirty-one, thirty-
two, thirty-three, thirty-four, thirty-five, and thirty-seven.

§ 8. Eighth session, 1868-9.] The following acts passed at the
eighth session of the legislative assembly in the years 1868-9, are
repealed:

Chapters one, two, three, four, five, six, seven, eight, nine, ten,
twelve, thirteen, fifteen, sixteen,^seventeen, eighteen, nineteen, twenty,
twenty-one, twenty -two, twenty-three, twenty-four, twenty-five, twenty-
six, tw^enty-seven.

§ 9. Ninth session, 1870-1.| The following acts passed at the
ninth session of the legislative assembly in the years 1870-1, are
repealed:

Chapters one, two, three, four, five, six, seven, eight, eleven, twelve,
thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen,
twenty, twenty -one, twenty-two, twentjr-three, twenty-four, twenty-
five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty-one,
thirty-two, thirty-three, thirty-five, thirty-six, thirty-seven, thirty-
eight, and thirty-nine, and chapter five of the special and private
laws.

§ 10. Tenth session, 1872-3.] The following acts passed at the
tenth session of the legislative assembly in the years 1872-3, are
repjBaled :

Chapters one, two, three, four, five, six, seven, eight, nine, ten,
eleven, twelve, thirteen, fourteen, twenty-one, twenty-two, twenty-
three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-
eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three, thirty-
four, thirty-five, thirty-six, forty-^even, forty-eight, forty-nine, fifty,
fifty-one, and fifty-two, and chapters one, two, and ten of the special
and private laws.

§ ll. Eleventh session, 1874-5] The following acts passed at
the eleventh session of. the legislative assembly, in the years 1874-5,
are repealed:

Chapters five, seven, eight, nine, ten, eleven, twelve, thirteen, four-
teen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-five,
twenty-six, twenty-seven, twenty-eight, thirty-four, thirty-six, thirty-
seven, thirty-nine, forty, forty-one, forty-two, forty-three, forty-five^
forty-six, forty-seven, forty-eight, forty-nine, fifty-one, jBlfty-two, fifty-
three, fifty-four, fifty-five, fifty-six, fifty-seven, fifty-eight fifty-nine,
sixty-one, sixty-two, sixty-three, sixty-four, sixty-five, sixty-six, sixty-
seven, sixty-eight, sixty-nine, seventy, seventy-one, seventy-two,
seventy-three, seventy-five, seventy-six, seventy-seven, seventy-eight,
seventy-nine, eighty, eighty-one, eighty-two, eighty-three, eighty-
seven, eighty-eight, eighty-nine, ninety, ninety-one, arid ninety-ttiree,
and chapters eight, ten, and fourteen, of special and private laws.

900 General Rbpealino Act.

§ 12. Former LAWS SUSTAIN RIGHTS, 8UIT8, AND LI ABILITIES THEREUNDER.]

The repeal of the several acts in this act enumerated, shall not affect
any act done, or any ri^ht accruing or accrued, or any suit or proceed-
ing had or commenced in any civil cause before said repeal^ but all
rignts and liabilities under said acts shall continue, and mav be enforced
in the same manner, as if said repeal had not been made; nor shall
said repeal, in any manner a£Eect the right to any office, or change the
term or tenure thereof.

§ 13. Sams of penalties and forfeitures.] All offenses committed,
and all penalties or forfeitures incurred under anv statute hereby
repealed, prior to such repeal, may be prosecuted and punished in the
same manner and with the same effect, as if said repeal had not been
made; Provided, That all acts passed at the present session of the
legislative assembly, relating to civil and criminal procedure, shall
apply to and govern, so far as applicable, in all actions and proceed-
ings now pending.

f 14. Limitations, civil and criminal continue.] All acts of lim-
itation, whether applicable to civil or criminal actions, or for the
recovery of penalties or forfeitures, embraced in any of said codes, and
covered by the repealing provisions of this act, shall not be affected by
such repeal, but all civil and criminal actions, and all proceedings, for
causes arising or acts done or committed prior to said repeal, may be
commenced and prosecuted, within the same time, as if said, repeal
had not been maae.

§ 15. Titles and order of codes.] The several codes enacted by
the legislative assembly, shall be known as the political code, the
civil code, the code of civil procedure, the probate code, the justices'
code, the penal code, and the code of cnminal procedure, and by
such titles may be referred to and amended, and in the publication
and binding, shall be arranged in the above order, and the whole body
of law^ shall be designated, as the Revised Codes of the Territory of
.Dakota.

§ 16. Construction- CODES deemed one act.] For the purposes of
construction, the several codes passed at the present session of the
legislative assembly shall be held. and deemed to have been passed on
the same day as parts of the pame statute. But if the provisions of
any law passed at the present session of the legislative assembly
contravene, or are inconsistent with the provisions of either of the
codes, the provisions of such law shall prevail.

§ 17. Conflict adjusted,]' If the provisions of any code, title,
chapter, or article, conflict with or contravene the provisions of any
other code, title, chapter, or article, the provisions of each code, title,
chapter, or article must prevail as to all matters and questions arising
thereunder out of the »ame subject matter.

§ 18. Secretary max arrange and cqmpile.] In the publication
of the codes and general statutes, the secretary of the territory. has
power, without altering the general plan, to renumber and readjust
sections, chapters, q-rticles, and subdivisions, and also to place and
distribute general statutes, not. now embraced in the codes in the
same, under the appropriate chapter or other heading.

§ 19. Date of effect.] This act shall take effect and be in force
from and after its passage and approval.

Approved, Feb. 17, 1877.

INDEX.

Pa«b.

ABATBM INT oflegMlM 3»

of Dnlsaiic«4 does Bot imiwlr cUim Ibr damMgem 470

by whom made 471

of action by deatb, etc, of a party, when 480

bj tranaCBT of latareat. 480

ABDUCTION forbidden ai

of persons oat of territory <MM

pnniahment of TSt, 797

jplaceoftrlal 814

ABORTION, procuring or attempting, where death

enaoea 78S

other attempt! to procure 788

ACCESSION to real property 297

of fixtures WZ

of alluvion W7

by remoTal of bank 07

by accumulation of earth 897

by change of stream's courae 897

To PxBsoHAL Pbopbbtt 896

l^ union of sereral things 896

by workmanship thereon 8j8

by formation of new thing 896

by admixture of materials 898

by willful trespass, 896

ACCBSSORT follows principal aOi, 47S

lien is 489

to felony, defined 690

punisbmencof 609

none in misdemeanor 600

local Jurisdiction of 815

before the fact, may be indicted, triedt etc.,

when

requisites of indictment against

andjprlncipal, distinction abolished

ACCIDENT, error in contract caused by, to be oor- '

rected 841

deposit by, must be accepted 868

thing gained by, held Intrust 888

Seeltfwato.

A ground for new trial B87

ACCOMPLICE, no conviction on testimony of,

alone 848

ACCORD defined 888

eflfect of 888

acceptance of, la satlsltetion 888

ACCOUNT, caose of action on, when accrues 486

hew may be pleaded 400

copy ot, to be given if required 400

ftmiier, court may order 400

reference to taker 618, 686

of property of corporation 670

Suardlan to render 480
y guardian, executor, etc 606,046,666

Ihlse, by public ofllcer 760

employe must render 866

for what trustee must 884

for what partner muft 806, 808

ACCUMULATIONS of income, certain allowed... 288

allotfaervoid 88S

void direction for, does not vitiate the remain-
der of instrument 888

certain allowances may be made out of 888

ACCUSATION, in proceeding to remove offlcer. ... 818

answer to 818

trialof 818

against territorial offlcer, in what county 818

twelve jurors must concur in finding 885

ACKNOWLBDQMBNT of marriage certifioate 814

of Indenture of apprenticeship 888

of consent to transfer of indeatnrs 898

of execution of power by married woman 846

of consent to execution of poA^r 847

of instrument, necessary to its record 805

wbomayuke 20, 806

offlcer must know person making. 806

by married woman 807

certificate of 806, 800

action to correct defective

powers of offlc«rs antborizad to take

Paoi.

ACKNOWLBDGMENT-CbntiRiMid.

of ceriificate of fbrmatlon, elo., of special paitp

nerahip 101,408

of assignment for benefit of cr«dttoTa 487

Ibe for 178

tUI BSCENCE rsmoves oUcctlon 478

•UIsrilON OF PROPER'rT 806

^U ITT AL. defendant to be dlschargea upon — 808

foreign, a aefsnse 816, 706

of one or more of several defbndanta 854, 888

of same offense, what 1«

former, effect of. as a bar 706,

plea of former, form of

. not sustained by discbarge of Jury, when 840

verdict of Jury not requirsd to reconsider — \ . 864
Judgment of, on informal verdict, when 866

ACTION defined 478

division into civil and criminal 478

bringing. In false name ?tt

defondlng In certain caaes 7V4

ACTS not expressly forbidden 706

ADJOURNMENT of supreme court 481

of disutct court 81

of execution sale 687

costs of 877,547

in Justice's court, civil case 680

forcible entry, etc 670

criminal case 600

final, discharges Jury 868, 887, 088

ADMINISTRATOR, actions against, when to be

commenced 487

may sue without Joining party In Interest 488

costs against * 688, 548

may enforce Judgment, when 581

may siie for injury causing death 600

Jurisdiction of probate court over 606

who not competent as i*. 615

oath and bond of 617

revocation of letters of.. .617, 680, 688, 688, 641, 668

suspension of 610, 688

power of, ceases on probate of will, when 681

effect of death, disability, etc., of 681

resignation of 681

may be restrained, pending proof of lost will. . . 618

accounting by 881,646

with will annexed 014

power of 614

power ceases, when 611

clutlon to, on contest after probate 611

special, appointment, powers and duties of 880

bee Eseeutor, Kttaim of Decedent, LeiUr% of
AdminiifiTatiim,

ADMINISTRATRIX, married woman not compe-
tent as 616

See AdminUHralor.

ADMISSION of service of summons 406

of part of plalntlfl^s claim 517

of counter claim 618

of genulnenesN of writing 665

of genuineness of note, etc., filed

ADOPTION of minor child, when allowed.

may be made by whom

consent of parents, when required . .

consent of child, when

order of probate Judge neeesssry to. . . .

eflSeet of

of llle|rftimate child

ADULTERY, cause for divorce 815

See Divorce,

defined 815, 787

pnnlsbroent of 797

ADVANCEMENT deemed part df fntesUte*s estate

when heir excluded fkom succession by

what deemed an

value of, bow ascertafoed

when deemed an ademption 810

AD VE RS E POSSESSION, what eonstltnces 4S4

AFFIDAVIT tot delivery of personal property .... W
of service of sammone

902

Index.

AFFID AY IT— Oontlniied .

to obtain or vacate injanction 510

attachment 1 511

of coBtB 547

with snmmonB to Joint debtor 568

defined 56B

wlien may be used 560

before wnom made 669

entitling of 878, 5B7

necesBary on motion, how obtained (SBS

for enlargement of time 565

YOlnntary, when allowed 718

APFIKMANCB in Bupreme conrt 480

Sartial, costs on 547
iamisBaliB 560

AFFIRMATION, when allowed »!

included in the term oath 475, 881, 714

AGENCY defined 38Q

parties to, defined 888

actual, defined S88

oBteneible, defined :388

how created 889

orally 889

bywrltlng 389

by ratification 389

authority conferred by 889

actual 389

osteuBible 389

extant of 389, 390

obligations of parties to :)90

richtd of third persons under 891, 390

delegation of 891

bow terminated in all cases :)92

where agent has no interest 393

See Agents Authoiily^ Auctioneer, Factor^
Principal, Shipmaster^ SMp^a Manaoer.

AGKNT defined 888

who may appoint 888

who may be 388

flpecial, defined 388

general, defined 388

actual, defined 388

ostensible, defined :)88

authority of 388

may extend to what 389, 888

to defraud principal 889

precedent 389

Bubsequent 389

conBideration not neceaeary to 888

oral, when sufiacient * 880

in writing, when necessary 389

by ratification, how given 472, 380

partial, when total 389

when valid or not 380

to prejudice of third person 389

may be rescinded when 889

extent of 389

actual, defined 389

OBtenBible, defined 389

how far implied ^. 889

special restrictions dpon, efi'ect of i^

to disobey Instructions 890

general, how limited 390

to sell personal property, efi'ect of. 890

real property, effect of 390

when ffives power to receive price 800

represents principal how far 390

acts of, bind principal, when 800, 391

deemed to have notice of what 300

when principal exonerated by payment to 890

when person dealing with, may set off claims

against 391

principal responsible for negligence of, when.. 391

for wrongful acts of, wiien 301

when not 391

may delegate powers, when 891

employment of sub-agent by, effect of 392

responsible for sub-agent, when 302

when not 302

obligations ot to third persons 801

as to warranty of authority 801

as principal, in certain casee 301

to surrender property to true owner 881

when incapable of contracting 801

to principal 860

to conform to authority 860

to inform of his acts 868

as to collection of bills, etc 860

to principal of principal 860

power of, how terminated 302

auctioneer as 802

See ^iict<an«er.

894

Pass.

AGBNT--Oemt<nu«i.

factor as

See Fa^ctor.

shipmaster as

See Shipmcuier.

ship's manager as

See 8hip*s Manaoer-

partner as 887

See Partnership^ Partner,

trustee as 88B

8ee2Vu8tee.

insurance by, how to be made 406

indemnity extends to acts of, when 4S0

duties of, in giving notice of dishonor 446

damages for breach of warranty of authority of 456
See Agency, Principal.

of corporation, service of summons on 494

verification of pleadings by 499

liable to arrest 5L3

for absentee in admin letratlon of estate 655

AGRICULTURAL FAIR CORPORATIONS «l

See Corporation.

ALIBN may hold property 230

may take by succession 3M

enemy, limitation against 467

ALLEGATIONS, not controverted, taken as true. . 501
AMBASSADORS and attendants, exempt trma

trial here 686

AMENDMENT of pleading in case of material

variance 501

of immaterial variance 501

by party 606

on terms after decision of demurrer SOS

before or after Judgment 606

of process before or after Judgment 506

of proceeding 506

of appeal 530

of pleadings in Justice's court 677

See Mistake, Error.

ANIMALS, when subjects of ownership 216

duties of depositary of S55

of borrower of. 338

damages for injuries to 459

liability of owner for injuries by 737

poisoning 789

killing, or crneliy treating 7S9

causing to fight 760

ANSWER, service of 4Sf!

to amended complaint 497

certain objections not taken by, waived 466

what must contain 496

and demurrer to parts of same complaint 486

sham, or irrelevant, nwy be stricken oat 496

several defences, etc., may be embraced in 498

how mufet be stated 4B8

reply to.. 496

demurrer to 498

in action for libel or slander 600

for possession of property distrained GOO

allegations of, when deeihed admitted SOI

in proceeding against Joint debtor CS6

in partition 571

in mandamns 598

Judgment on failure to 497, 518

frivolous •. 619

time to 487, 665

supplemental 508

in Justice's court 6T7

of title, etc., to land 675

in proceedings to remove ofllcer 812

See Pleadingg, Defendamt.

APOTHECARY, mislabeling drugs 754

making up prescriptions wrongly 7M

mast keep record, etc., of poison sold 754

APPEAL, whomay 548

in what cases 519

parties, how designated on 5tt

how taken 680

notice of 480, 500

effect of dismissal of 561, 560

undertaking neoassaiy to 590

to stay execution on 561, 683

To SupHBXB CotmT 549, 4?9

dismissal of 660

power of court upon * 460, 6S0

m>m Judgment, what reviewable 868

time for taking S60

in foreclosure 888

in special proceeding 566, 586, 685

From Pbobatb OoirnT 669

in what cases allowed 6B8

may be taken by whom |6G8

Indbx.

903

APPBAXr— ConttHiMd.

time for te©

how made W*

stay on 861, 660

bond on 668, 660

hearins of 681

effect of dismUsal of 66S

coeta on 662

Fbok Justxcb*8 Court 688

time for 686

how taken 686

notice of. 686

Btatement on 687

undertaking neceseary to « 687

atav of execction on 687, 688

hearing of 888

dlamiBBai of 888

FBOM JU8T10K*d COUBT, IN CbIMINAL CabK 802

how taken 688,692

notice of. 892

hall on 6«3

h'ei^ng of 693

not to bo dlsmiseed 893

Pnox CoDiiTY Board 130, 30

in proceeding to remove panper 149, 1S2

to condemn for mill site, 608

f^om taxation of costs. 548

See Writ of Error.
APPEASANCE equivalent to personal service — 497

entitles defendant to notice 518

failure of, effect 681, SM

is waiver of notice 609

in Jo8tice*scoart 875

APPELLANT, party appealing known as 549

must file transcript. 660

APPRAISERS, in estrays 164

of exemptions 535

of estates of decedenU >. .^606, 688

APPRENTICESHIP, who may enter into 296

whose consent is necessary to 8S7

consent to, how given 226

parent, etc.,wbenllable for breach of contract of, 227

of pauper child 151, 227

of Indian child 227

what must be stated in contract of SsfT

indentore of, where to be filed 227

of immigrant minor, how made 227

indenture to be acknowledged 2s£

bow assigned 228

indenture of, when void 228

penalty for breach of 228

assignment of 228

certain restraints upon apprentice void 228

APPROPRIATIONS to publfgh laws 196

for relief of E. A. Sherman 195

ARRAIGNMENT, before what court made 884

defendant's presence necessary, when 834

presence, how secured 834, 835

right to counsel before 836

how made 835

ARREST in civil cases, when allowed 544, 603, 680

of female 504

order of, how Issued and served 504

when to be served before execution

against person 532

motion to vacate 507

court always open for 481

discharge from 505

iustification of bail on 506

In criminal cases, defined 819

how made 819

by peace ofllcer, under warrant 817. 818, 819

without warrant 819

by private person 820

• powers and duties of one maldng 819, 820

may be made at night, when 819, 820

warrant of , 817,890

under bench warrant 859, 835, 829

making without lawful authority 717

refhslng to make or aid In 717

by ball 874, 505

See BaU.
ARREST AND BAIL. See ^ rrest, Bafl.

ARREST OP JUDGMENT, motion In, defined 867

upon what founded 857

when to be made 867

by court without motion 867

disposition of defendant on 858

eflbctof 857

ARSON defined 762, 788

ownership of the building 763

what constltntea maUta 783

contiguous buildings 783

Pass

AR80N-Oontini4«l.

how punishable 784

indictment for 783

ASSAULT, costs in action for, limited 548

time of commencing action for 485

with Intent to kill 730

with deadly weapon 730, 782

with intent to commit felony 782

definition of 733

and battery, punishment of 734

with dangerous weapon 734

in presence of court or magistrate 809

ASSESSMENT of taxes. See Jt&oenue,

ot damages, after Judgment on appeal \ 480

on injunction 510

by jury 518, 594

of value of personal property 6M

of amount of recovery M8

of taxes, false sutement as to 762

ASSESSOR, when elected 84

duties of 46

compensation of 171

to ftamish valuation to school dlstricta 187

See Revenue, Oi^lc«r.

ASSIGNEE must sue in his own name 488

Uke subject to set ofi*. 488

liable for costs 546

may be substituted pending action 490

ASSIGNMENT of mortgage, may be recorded. ... 431
effect of record <m 481

Seneral, excuses notice of dishonor, when 446
oes not abate action 490

Fob Bbnevet OF Cbkditobs 467

may be made, by whom 487

effect of preference in 780, 467

■ what debu may be provided for by 467

void against creditor, when 467

how must be executed, etc 467

sssignee under, has same rights as debtor had. 467

inventory to accompany 468

affidavit to be annexed to 468

must be filed, where 488

must be recorded, where 488

void, if not recorded, etc 466

of real property, subject to certain provisions.. 468

assignee Under, must give security 468

has no power, until when 469

may be required to account 489

compensation of 469

not liable for acts in good faith 469

property exempt from execution does net pass

hy... 489

life insurances do not pass by 460

how canceled or modified 489

partner has not authority to make 397

ASYLUM rOR THE POOR. See Poor,

ATTACHMENT, in what cases allowed 510

warrant of, how Issued and executed 511

what property may be uken under 51S

property taken by, claimed by third person. ... 612

how applied, if Judgment for plaintiff 518

discharge of. 614

court always open for motion for 481

return of warrant 515

when may be had before debt is due 516

against witness 567

in bastardy proceeding 599

for costs 548

in justice's court 877

ATTEMPT to kill by poison 780

by assault witn deadly weapon 780

by other assault 730

to commit crime, whea punishable 797

Dunishment of. 797

ATTORNEY, who may act as. In Justice's court. . . 675

who may be licensed 25

oath of 26

from other states 25

duties of. 25

punishment for deceit 782, 28

powers of. 26

when must prove authority 26

must not be surety 26

lien of 28

how released 28

court may revoke or suspend license 27

causes for 27

proceedings, how commenced. 27

accusation, how answered and tried 27

Judgment 27

appeal 27

refusal to pay over money 27

must subscribe summons 402

904

Inbsz.

Pagb.
ATTORNKT--Oontinued.

pleadings 499

bnt one copy complaint need be served on 498

verification of pleiadlngs by 499

liable to arrest BOB

compensation of. 546

when allowed as costs 646

cannot be witness, when 668

service npon 666

fees of, in partition 577

baying demands for suit 790,719

conviction for, forfeits office TXi

coUnsion or fraad by 732

nse of name bv other person 72St

defending certain prosecntions 794

■ power ofTnot affected bv certain provisions 944

dvties of person holding 866

AUCTION. 8ee8al«.

AUCTIONEER, license of, 160

period of 160

selling wUhoQt 161

anthority of, f^om seller 892

from buyer 898

may make memorandum of sale SS2, 898

to have bat one place of business 761

selling elsewhere 761

damaged goods as sound 761

what sales must be by day 761

omitting to account 761

ftrand or evasion of law by 76B

AUDITOR, territorial, appointment, term of office, 10

office at capital 10

aodits accounts against territory 10

issues territorial warrants 11

in small amounts if required 11

to keep warrant book 11

method of accounts 11

biennial report to governor 11

reports county sssessmente to treasurer 12

inspection of his books, etc., '. . 12

' reporu lands becoming taxable 120, 12

prepares forms, etc., for assessments 107, 12

may remit tax penalties, when 12

reports railroad, etc., assessments to treasurer. 12

certain expenses of, how paid 12

proceedings by, against defaulting officers 12

may administer oaths 13

duly in organising townships 52

one of bovd of equalisation t lOB

transmits rate of ter. tax to county clerks 106

salary and allowance to 104

acts of former incumbents legalized 196

See Revenue^ Officer.
AVERAGE, general, defined 877

how adjusted 877

owner uf goods stowed on deck, when en-
UUedto 877

marine Insurer liable for 416, 418

ship's manager may adjust 894

insurance free of, mTect of 416

BAILdefined 491

in dvil case9, general provisions 608, 507

may surrender defendant 605

sheriff when liable as 607

how exonerated 606

in criminal cases 874

where punishment may be death 674

In other cases 874

after conviction 874

aualifications of 874
ischirge of defendant on 874

deposit equivalent to 874

mav arrest defendant 874

forfeiture of bond, etc., of. 875

additional may be required, when 885, 876

on arrest on Information 818

on a(!Uourning preliminary hearing 821

on holding defendant to answer 828

on arrest upon bench warrant 886

on removal of action 840

on dismissing li dlctinent 849

on habeas corpus 894

in Justice's court 692

on appeal 693

See Arretit.

BAILIFFS, district court appoints; fees 178

BAILMENTS. See Deposit, Loan, HirinOy Car-
riage, etc.

BANKER, 11-n of 489

BANK NOTE, negotiable 442, 458

after payment 453

See Neqotidble Instrument,

limitation of action to enforce — 487

384

r.U>/ ^. '■

ft W^W

,v.ajuO

BARRATRY, deflniUon of. 7»

is a misdemeanor 719

proof necessary to conviction of 719

BASTARDS, proceeding against supposed fhtherof BW

who entitled to custody of

legitimatixation of

takes by succession, when

BATTERY defined

punishment for 71

action for. limitation of

costs in, limited 546

BAWDY HOUSE, keeping or letting 7«

BENCH WAiiRANT, npon presentment ~"

upon indictment 884,

to obtain •defendant's presence for Judgment

BENEFICIARY of trust defined :

most be indieated by trust

mav allow trustee to act in adverse interest,

when

trustee may not take advantage of

adverse trust without consent of

entitled to information of trustee^s adverse in-
terest

what is fk^ud against. •

when presumed to be under undtie infiuence..
may require trustee to account for breach of

trust, how

may take advantage of trust before it is rescind-
ed

consent of, necessary to revocation of tmst,

when 887

trustee may be discharged by, when 887

in real property has no interest therein 864

may not transfer his interest, when SM

when entitled to release from trustee

See 2Vi/sf , Use$ and TVu^ts.

BENEVOLENT CORPORATIONS

See Corporatirins.

exemption from taxation 97

BEQUEST, what may pass by 811

who may take by 811

subject to lien when 814

takes partial effect only, when 814

when revoked by transfer, etc , 815

when does not lapse by death of legatee 815

to subscribing witness, when void SIS

clear, cannot be controlled by words lees dear, 848
of all of testator's personal property, efllect of.. 817

of residue of estate, etc, effect of 817

to heirs, relations, etc., effect of 817

to a class. Includes whom 818

vests, when 818

howoiivested 818

conditional , defined 318

vests, when SIB

to several persons, efflBCt of $18

what is ademption of. 819

of income, when accrues 820

See Legacy, Will.

BIGAMY, cause for divorce 214

defined 788,788

punishment of 789

place of trial 815

evidence on trial for 851

BILL OF EXCEPTIONS. See E^^ccptfon.

BILL OP EXCHANGE, defined 447

may give name of drawee In case of need 4fi

may be in a set 448

when must be in set 44B

presentment, etc., of one of a set, sufficient 446

where pavable 448

drawer or, has same rights, etc., as tndorser 448

days of grace on 448

presentment of, for acceptance 448

when ma^e 449, 448

how made 448*

bv whom made 448

to whom made < 448

when ezcuned 400, 451

to one of several Joint drawees 449

when drawer, etc., exonerated by delay in . . 449

to drawee in case of need 449

mstnrityof 415

agent for collection must present, for accept-
ance

when presumed dishonored

acceptance of, how made 449

must be in writing 449

must be unqualified 449

how made, by consent of holder 44}

by refrisal to return 449

. by separate instrument 449

promise to accept, when sufficient 449

tX-v"^ 0 >i «vt\

\Tt

Ikpsz.

906

BILL OF BXCHANOE-Omtimied.

may be canceled, when 449

what i» admitted by 449

for honor, when allowed 460

holder not boand to recelye 460

how made 460

how enforced 460

notice of dishonor, not exeaatd by 450

payment of, for honor, how made 460

matt be received by holder 450

presentment of, for payment, where made 460

effect of delay in ^ 460

excoees for want of presentment, etc., of 453, 460

inland defined 461

foreiKn defined 461

notice of dishonor of, how given 461

protest of, by whom made 461

how mad[e 461

where made 461

when made 461

when excused • 461

notice of, how given r. 451

may be waived 461

how paid for honor 461

damages for dishonor of 408, 461

bow estimated in U. 8. money 462

in foreign money 488

Bee ITeaotlable instruynent.

BILL OF LADING defined 875

negotiable 876

effect of, on rights and dnties of carrier 876

consignor entitled to 876

effect of refhsal to kIto 876

carrier may require surrender of, on delivery

of goods 876

flUxe and f^adnlent 787, 768

BILL OP PARTICULARS, court may order 600

BIRDS, protection of 191

BLASPHRMT defined 6B9

is a misdemeanor 699

BOARD OF COUNTY COMMISSIONERS. See

0>un/y OommittfonerR.
BOARD OF SUPERVISORS. See CCvfl IV)U/n«h(p«.

BOARDING HOUSE KEEPERS, liability of 866

how exempted flrom liability by notice, etc 866

lien of 440, 866

BOND, negotiable 442

title of transferee of, after dishonor 468

See JVecFotlaOfe ImHrvmenl.

of executor or administrator 617

of guardian 664

on appeal firom probate court 660, 668

of civil oflleers 8

for liquor license 167

action on, in Jnstice^s court, when 678

BOTTOMRY defined 487

owner may hypothecate upon, in any case 487

shipmaster may hypothecate upon, when 487

rate of interest upon 487

rights of lender upon, when not necessary 488

supulatlon for personal liability under, void 488

loan upon, when due 488

lien of, how lost 488

preferred to other liens, when. 488

priority of several liens of 487

See lA&Oy ReapnnderUia.

BOUNDARY or real property 941

evidence or answer of, in Justice's court ... 674

of Judicial dlstricu 198,197,17, 16

of counties 198, 194

BRANDS. 8ne Marks and Brands.

BRIBEdeflned .800

BRIBERY at elections 701, 708

of executive officer 707

of members of legislature 709

of judicial officers, etc 710

of witness 716

BRIDGE CORPORATIONS, term of existence of.. 887

articles of, what must srste 887

when may construct bridge, etc 887

when cease to be bodies corporate..... 887

duties of. 888

toll, rates of, must be posted 888

taking ozcearive 888

when not to be taken 888

payment of before passing 288

passing without piling 888

annual report to county boird.

to be published .

See Corporations.

BRIDGES a part of the highway Itt

malicious iqjury to

See Hf0lkioa|r*

^^^. Tamm.

BROTHER takes by succession, when 888

right of, to letters of administration 615, 617

BUGGB R Y . See Crime aaalnst Nature.
BUILDING FUND, proceeds of sales of lots to be, 88

duty of county board to use 88

BURGLARS' TOOLS 786

BURGLARY, degrees of, defined 765, 764

f»unlshment of. 766
ocal jurisdiction of B16

BURIAL. See Dead Body.

right of^ay be held as servitude 888, 289

CALENDAR of supreme court, preferred causes. . . 480

on second and subsequent appeals 480

order of issues on 680

CANCELLATION of grant of real estate, does not

revest title 800

of written contract, effect of 846

of written instrument maybe adjudged, when. . 464

void on its face, not allowed 464

partial, may be adjudged 464

of acceptance by accepior, when allowed 449

CAPITAL OFTEhRirORY 1

CARE, degrees of 478

sliarht, defined 478

ordinary, defined 478

great, defined 478

slight, required of gratuitous depositary 866

employe 866

carrier of property 875

ordinary, required of depositary for hire 866

of hirer 861

of employe, for reward 866

of irratultous carrier of persons 874

of carrier of property for reward 376

of trustee 886

great, required of borrower 858

employe, fbr his own benefit 866

of carrier of messages, for reward 878

utmost, required of carrier of persons for re-
ward 874

CARRIAGE, contract of, defined 838

different kinds of .378

of persons 874

gratuitous 874

tor reward 874

of property 874

of messages 878

See Carrier^ FreigfUage, Average.

CARRIER defined 878

inland 878

marine 878

without reward, obligations of 878

Or Pkbsons, gratuitous, obligatioDS of 874

tor reward, must use utmost care 874

must provide safe vehicles 874

must not overload vehicle 874

must give reasonable accommodatiims 874

must travel without delay 874

liable for misconduct of servants 138

Of Propbbty, for reward, must use ordinary care 375

gratuitous, must use slight care 875

must obey orders 875

duties of, in case of canfllctlng orders 87A

must not stow freight on deck 875

must not deviate 375

must not vitiate Insurance on freight 876

must deliver (height, where 87fi

must give notice of arrival, when 875

may terminate liability, how 875

may place in warehouse, when 875

must give bills of lading 876

may deliver freight to holder of bill of lading... 876
may require bill of lading to be surrendered... . 876
See But of Ladina-

fk-eightage of 376

See Fr^htaoe.

may throw freight overboard, when 877

See .^veroi^e. Jettison.

Of ICessaobs, must deliver, how 378

degree of care, etc., required of 378

ComoN, defined 878

must accept what is offered .378

must not give preference 878

except to government, etc., 878

must start when 378

compensation of 879

obligation of, how modified by notice or agree-
ment 37 9

cannot be relieved nrom certain liabilities 379

of persons, must carry luggage, when 379

liability of, for luggage 379

must deliver luggage, when 379

must provide sulcTent accomodation 879

906

iKtotz.

CARRIBS— OonUnued.

may demand fare, when 879

may eject pasBenger, when 784, 880

cannot demand payment after ejection. ... 880

liaa lien upon laggage 880

of property, liability of 880

exceptions to 380

for negligence 880

for delay 880

marine, liability of ■ ... .878, 380

duties of, in respect to freight going beyond

his route 880

must firive evidence of cause of lose 881

obligations of in other respects 881

of messages, must transmit in what order 881

]penalty upon for improper delay 381

has insurable interest 406

lien of 439, 880

damages for refusal of. to accept goods 458

for neglect of, to deliver goods 380, 468

for delay of. in delivery 458

CAUSE OF ACTION, in certain cases, when

deemed to accrue 486

how to be stated in complaint 497

what may be Joined 581, 501

misjoinder of ground for demurrer 497

CEMETERY, corporation: 291

See CoiTxyratioHS.

defacing tombs, etc, in 742

wounding, etc.. birds in 789

CERTIOKAHI, writ of general provisions 502

issue and hearing of. 595

rules of practice In .595

new trials and appeals in 595

for diminution of record 866

CHALLENGE, to civil trial Jurors 520, 521

In Justice's court 682

in criminal action to trial Jurors 848, 846 -

In Jnstice*s court 691

to graud juroro 886^ 826

exception for disallowing 856

for error on trial of 856

See Dud, Prize Fight.

CHAMPKRTY 719,720

CHANGE of venue in civil cases 492, 674

in criminal cases 880

of names of persons, towns, etc 596

of possession not necessary to mortgage 480

necessary to pledge 485

mortgagor may agree to, when 481

want ofV conclusive of fraud, when 466

of purpot^e, when not allowed 472

CHAPLAIN, feef of. 173

CHARITABLE CORPORATIONS 289,292

See Cort)oratimu.

exemption of, A-om taxation 97

CHEATS 776

CHEQUE defined 458

uejgotlable 442

efl^ct of delay in pret<entment of 463

title of indorsee to 453

no days of grace on 453

See BiU8 of Kxchanyej Negotiable ImftrumeJil.

CHILD, abduction of, forbidden 211

when presumed legitimate 221

who may dispute legitimacy of 221

of divorced parents, legitimacy of 823, 215, 217

who must support 221, 222

who entitled to custody and earnings of 221, 222, 223

allowance for support of 222, 221

patent has no control over property of 221

abuse of parental authority over 221

when parent's authority over ceases 222

compeui>ation of county, etc., for support of ... 222
third person may recover for necessaries fur-
nished to 222

relative not entitled to compensation for sup-
port of 222

relations between stepfather and 222

parent not entitled to compensation for support

of 222

nor liable for services of 2^

may relinquish right of control over 222

may change residence of 222

not answerable for acts of 222

custody of. may be granted to either parent... 223

must maintain poor parent 222

may receive its own wages, when 222

adoption of , 223

See Adoption.

rights of unborn 324, 208

birth of, revokes will, when 814

born after will, takes by succession, when 816

CHILD— Ckmtinued.

takes as one of a claaa, when 318

illegitimate, who succeed to property of.

succeeds to parents' property, when

duress of, avoids contract of parent, when . ...
menace of injury to, avoids contract of parent,

when

See Minor, Parent and CMld.

right of, to letters of administration 617, 615

to occupy homestead after parents' dece«a»e

16S, 626

of decedext,. allotment to 626, 628

when capable of crime GBT

fhindulent pretense as to birth of 71

sabstituting one for another T

neglect or desertion of 7S7

concealing still birth of 738

stealing 788

hoars of labor of. ?B6

correction of. lawful, when 734

CHOSE IN ACTION. See Thing in AUUm.

CITATION, requisites of, in probate court 667

service of

to defendant In error

CITIES. See Incorporation of, cU.

CIVIL-ACTION defined 4*3^

remedy by, not merged in criminal action 478

and suit, distinction abolished

forms of, abolished

time of commencing

how commenced 673,

when deemed commenced 486, 494, 406, 511

pending 4d4.

must be in name of party in Interest

parties to, how designated

on appeal

does not abate by death, etc

how continued on transfer of interest 400

See Parties.

Slace of trial of 481, 674
1 vlded into several actions, when SOB

consolidation of 567

offer to compromise B&U

controversy submitted without

upon Judgment, when allowed

in place of scire facias, quo warranto, etc

to vacate charter of corporation 568

to recover property forfeited to territory. .. . 570

for partition 570

concerning real estate 584

for nuisance, waste, etc. 566

to foreclose mortgage SBl

to enforce mechanic's lien

liens on chattels

for injuries causing death

by and against counties SS, 85

townships tA, 62

towns and cities 74, 80

to remove civil officers 60

by and against personal representatives 6tt

See Execution, PJeadingt^ TriaU JudgmenU
Appeah LimUatiom.

CIVILCODB 207,476

title of act esUblishlng 900, 207

divlsionsof 207

words in, how to be understood 4T8

defined in 47S

t-o be liberally construed 475

how may be cited, etc 900, 475

CIVIL TOWNSHIP 51

<See T(ywn»hip.

CLAIMS, notice of no personal |I8S

of third person to attached property 512

property taken bv execution 564

to real propertv, limitation of. 483

determination of 584

against estate of decedent

propertv chargeable for. . . .321, 819, 311, 68S, 696

purchase of, by attorney. Justice , etc 719

CLAIM AND DELIVEBt of penonal property.

general provisions 507

limitation of action 485

verdict in 524

Judgment in 668

costs in , 545

in Justice's court. . /. 678

CLARK COUNTY boundaries changed IM

CLERKS OF DISTRICT COUHT, appointment of 90

how to qualify 26

toprocnre and keep seal 69

ofl&ce at county seat 20

responsibility for neglect of duty 20

duuesof : 26, 21

Isvn^i

907

Paob.

CLBBKS OF D18TBICT COURT— Oontifiuecl.

deputy of 10, 21

when may adjonm conrt 21

keep records of notaries ptiblic, when 24

ceniiy official character of officers 24, 56

may administer oaths 81

fees of 164

may require fees In advance. 172

amercement of 642

may take acknowledgments, etc 806

maT issne subpoena 867, 567

to keep register of actions 567

CIjJSRGTmEN cannot be witness, when 568

CODEOP CIVIL PROCEDURB 477, 604

title of act esUbllshing 900, 477

Is not retroactive 477

to be liberally constroed ^ 477

does not affect prior proceedings or rights 477

former limitations continoe 477

meaning of certain words In 477

effect o^ upon former laws 478

how may be cited, etc 200, 478

how flir applies to Justice conrt 689

CODE OF CRIMINAL PROCEDURB .806, 900

tltleof 900, 806

regulates criminal prosecutions — 696

not to be strictly construed 880

is not reiroactire 880

to what proceedings applies 881

effect of, upon pending proceedings 881

CODES, title and order of 900

conflict between, a^usted 900

arrangement and publication of. . .'. 900

CODICIL. See WIU.

CODINGTON COUNTY defined 194

COLLEQES, incorporation of 289, 290

exemption of, trom. taxation 97

COLLUSION defined 217

divorce denied, on showing 216

COMMISSION to take depositions 560

COMMISSIONERS OF DBBDS 22

seal of 28

acknowledgments by, valid .906, 22

may administer oaths, etc 22

how qpalifv 22

COMMITMBNT of person held ft>r crime

821, 82S, 886, 849

form of ; 828

of defendant on verdict of guilty 866

of witness for contempt 668

to secure evidence 823

COMMON BARRATRY. See Barratry.

COMMON CARRIER. See Carritr.

COMMON LAW, divisions of. 207

eridence of, where found 207

where non-existent 880, 477, 207

criminal practice according to, when 861

COMMUTATIONS 878

COMPENSATION OF PUBLIC OFFICERS .. 164, 178

COMPLAINT need not be served with summons. . . 496

copy must be served. If demanded 496

is first pleading by plaintiff 497

what shall contain 497

demurrer to 497

certain objections to, how waived 496

amended, must be served 497

defendant must answer 497

inaction for libel or slander 500

for usurping office 569

what causes of action may be Joined in 601

allegations of, when deemed admitted 601

dismissal of 628, 520

relief, how limited by 628

in partition 670

In loreclosnre 581

in action to recover real property 584

in bastardy proceeding 699

fllinfof 566,496

supplemental 508,490

in Justice's court, civil case 676

for forcible entry 679

in criminal action 690

See Plecuiinas^ ParHes, CivQ Action.

COMPOUNDING crime or prosecution 718

indictment for, may be found, when 888

COMPROMISE, offer of 564

of misdemeanor, by leave of court 870

CONCEALED WEAPON, carrying 766

CONDITION, species of 827,282

restraining marriage, when void 282

alienation, when void 282

of power, when may be disregarded M6

when must be onserved 946

Paob.
CONDITION-OonCiniMd.

grant delivered on 300

will may be denied probate according to 812

precedent, effset of unlawfhl, etc., 282, 327

in will, defined 818

effect of 318

when deemed performed 318

in obligation, defined 327

when must be performed 327

concurrent, in obligation, defined 327

when must be performed 327

subsequent, in will, defined 818

in obligation, defined 327

effect of 827

Involving forfsituxe, how construed 327

offer of performance may be made upon, when . 331

of proposal, must be fhlflUed by acceptance 338

performance of, is acceptance 338

failure to perform, revokes proposal 388

rieht of re-entry for breach of, not assignable. . 300

what, may be In negotiable instrument 441

performance of precedent, how pleaded 600

CONDONATION defined 217

divorce denied on showing 217

is revoked when 217

CONFESSION of Judgment 606

In Justice's court 678

CONFLICTING CLAIMS. See CUUfM.

CONNIVANCE defined 217

divorce denied on showing 216

CONSPIRACY, definition of 728, T24

when overt act is necessary 794

indictment . , 848

evidence 648

against peace of territory 724

for sale of pa/^sage tickets 786

to selae mine 794

to defhiud of money, etc., indictment 882

CONSTABLES, election of 64, 34

fees of 170

may serve Justice^ summons 676

may execute writ of attachment 678

powers and duties as to execution 664

power in claim and delivery 678

power in making arrest 819

CONSTRUCTION. See Interpretation.

CONTEMPT, breach of legislative privilege Is 2

failure of Juror to attend when summoned ... 30

by officer, for neglect in drawing, etc, Jury 80

provisions not applicable to 566, 503

refhsal to obey Judgment Is, when 581

in supplementary proceedings 646

by witness 667, 566

in Justice's court 092, 664

when criminal 720

how punishable 797

punishments for, preserved 801, 802

county board has power to punish 86

CONTESTS OF LEGIdLATIVE ELECTIONS. 199, 201

CONTRACT defined 835

essential elements of 835

Pabtiiis to, who may be 336

when minors, etc, may be 386

must be capable of identification 386

for benefit of third person, enforcable by him,

when 386

* CoirsBTrr to, must be free, mutual, etc 386

when not free, voidable 886

apparent, when not free 396

when deemed obtained by fraud, etc 336

duress in obtaining, defined 386

menace in obtaining, defined 386

fraud in obtaining, defined 887

undue influence in obtaining;, defined 387

mistake in obtaining, defined 337

when deemed mutual 387

when communicated 336

when complete 886

proposal of, when may be revoked 888

now revoked 888

voidable, may be ratified 386

' acceptance of benefit, when equivalent to 338

Objxct ot, defined 386

must be lawfol, possible and ascertainable 889

when deemed possible or not 888

when illegality of, renders contract wholly void, 889

when partly void M9

CoNsiDBBATioH OT, good, defined

when existing obligation is

must be lawful

effect of illegality of

may be executed or executory

execntoiy, need not be defined.

908

Inbsil

CONTBACT— Oontinti^d.

how avcertalned 889

impogfibllHy ot efllMit of 889,840

writing preBQmptiTe evidence of 840

Crxatxox of 840

by ezprees words 840

by Implication 840

ofally 340

bywrltlng 840

supersedes oral negotiations 841

when takes effect 841

delivery necessary to 841

under seal 841

sealed and nnseaied, distinction abolished 841

interpretation of, to be uniiTonn 841

to effectuate matual intention 841

to ascertain intention 841

to be governed by language used 841

to be by written words 841

to be exception In case of fhtud, etc 341

entire contract to be considered in — 841

several contracts to be taken together In . . . 841

to be favorable to its validity 843

according to ordinary sense of words 8^

technical words in 848

what law governs 848

by surronnding circnustances ... 348

to be restrained by its object 348

uncertainty in, to be construed against

whom 848

general intent to prevail in 848

original and written parts to prevail in 848

repugnances in 848

ioconslstent words to be retected in 848

what stipalations are implied in 348

Incidentis to contract, when implied in 848

in respect to time for performance 848

time, when essential in 848

Joint and several, when presumed to be 848

executed defined. . 848

executory defined 848

Unlawful defined 348

certain contracts declared 848

imposing penalty 848

fixingdamages 844,848

reptralning legal proceedings 844

tnde wheo .... 844

when not 344

marrlaee 844

extinction of, how effected 844

by resclssidn , 844

in what cases .. 844

certain stipulations do not pf^vent 846

how effected 846

by alteration, cancellation, or destruction.. 846

modification of 846

transfer is an executed 899

See Tran9fer.

delivery of, how regulated 841

not implied Id mortgage 480

CONTRIBUTION, Joint debtor may require, when 886
release of Joint debtor docs not affect rig^t of

others to 384

to general average loss 877

between insarers 411

between co-sureties 486 •

indorser not entitled to 448

CONTROVERSY, court may determine, what 481

.MubTr)itt<'d without action 696

CONVEYANCE defined 810

See Transfer, Grant, J^\•audvllenl.

CONVICT, lUeMl voilng by 708

Importing foreign 788

nnanthonzed communication with 788

protected by law 799

lu county jail, general provisions 884, 690

in territorial prison 890, 898

CONVICTION must precede panishment 806, 696

what necessary to 808

foreign, a defense 796, 816

for former offense, effect of 799

works forfeiture, when 800

• former, effect of, as a bar 796, 889

of infamous crime, disqualifies executor, etc. . .

618, 615

of peijary, disqaalifies witness 715

of one or more of several defendants 838

noue, on testimony of accomplice alone 84B

verdict of, reconsidered, when 884

judgment of, on verdict, when 866

in Justice's court 691

for felony, cause for divorce, 816

CORONER, when elected, M

acts ss sheriff, when 4t

inquests by, whenhald 4S

proceedings on ^ 4S, 45

auditing account of 4S

fees of ... !•?

SeeOffle^.
OORPORlTION defined

how created

grants of power to, subject to repeaL

existence of, how may be questioned 80.

name of

public

private

articles of Incorporation of

acceptance of, necesaary

must be absolut*

how nroved,

private, now formed.

for what purposes allowed

articles of, what to state

how subscribed, etc

avCoro o* ■■•••«•-••■ ■•»•••• ••■•■■•■

when completely formed

stockholders of, defined

members of, defined

stock of, subscriptions to, by whom enforced..

remedies for non-payment of

books of subscriptions to, opened

certificates of, wnen issued an*

transfer of shares of. K8, 9tl

over issue- of, void SB*

shares of, personal property SSS

may be held by it 886, 2SS

dividend upon, to whom due SS6

shares of minors, etc., of. .. SSB

shares of marriea women KB

amount of, how changed VI

Eowers of, enumerated
y-laws of, how madOt etc >

scope of

directors of, when chosen

who may be

to exercise its powers, etc

organization of board of.

certain acts by, forbidden

when personally liable

removal of

limitation of action, against ..

atockholders, meetinn ofT 987,

power of, at UBcaued meeting

limitation of actions against

records of

dissoluiion of

v<^untary, how effected

for want of organisation

trustees on

thelrlUWlity

how revived after

Judgment of

assessment of stock

sale of stock for non-payment of. 866, 886

when void for errors 886

action for amount of

sale of franchise, etc., ot, on execution

examination of

railroad 868,838

wagon road *"•!!!

insurance 880,"^

mining, manulkctnrinir. etc

ditch. 886,;

fiume '

tunnel '

bridge 987, 1

reliEious, benevolent, etc

now formed l

realesute of, limited 864,1

annual report of

how convey real estate

admitted members of

religious

institutions of learning

cemetery

other benevolent

agricultural fair

existing corporations

foreign, duties of.

actions against S10,<

InJ unctions against, granted only on notice —

service of summons upon

verification of pleadings by 4W

receiver of BTO, 5I«

brmz.

909

Pa«b.
OOBPOBATION-OtmMmiecl.

sapplementaiy proeeedtega •niBflt 544« 545

action against, to vacAte Mtlciei, etc 668

jadgmeatin 970,669

ftctitions BabtCfflptSoa for stock of 780

frand In organixtag. TBI

Araadln nseef namesinproapoetaoof. TBI

ftandla aceonnts of 788

pnblishing Iklso reports 783

refasing inspoetiOB of books. 788

directors^ knowledge i»«8uned 788

assent presumed, when 784

foreign provisions applicable to 784

director oi; dcined 784

hiMiki>>y, miacondnet of directors 781

ttxeesstve loan bj — 782

not invalid 788

sale, etc., of notes, by ofllcer 788

excessive circulation 78B

officer oTerdrawing aceonnt 782

makinff certain endorsoBcnta, etc 788

monered, frauanlent inaolvnncj of 788

directors of, poniskabie TBS

violation of dnkj bf 788

included in the term penoa 474, 880,801

criminal proceedings against 871

GORPSB. See Dead Body.

COSTS, after notice of no personal claim 408

what may be taxed as 171,178,646

in certain actions limited 646

wben allowed in but one action 647

wkere defendants not nnliod in interest 647

when in discretion of court 647

on amendment 608

on dismissal for want of Jurisdiction 647

on appeals from >usiic«*B court 647

on postponement ctf trial 977, 647

on change of venue 648

interest when added to 647

taxation of 647

appeal from 646

against infitnt pUintift. 648

trustee, etc .• 688, 548

terri tory 648

assignee 648

secarity for, when required 689, 648

after offer of compromise 688, 631, 664

against corporation 570

in partition ffTS, 577

in foreclosure 681

in action to determine conflicting claim, etc 684

on QiMe submitted without action 606

on jadgrocnt by confession 605

on contest of will 612

on appeal from probate court 662

in Justice's court 689, 688, 677

in criminal cases, taxation of 166, 172, 802

to be entered on record separately 172

COUNSEL for defendant in criminal case 800, 981

assigned by coort, when 886

coart may restrict argument of, when 847

COUNSELOR AT LAW. See^Momei/.

COUNTER CLAIMS may be set up in answer 498

defined 498

bow must be stated •-' 498

Judgment for excess of, admitted, demand over. 618

for excess of, over plain ttirs demand 628

oflbr to allow 654

for improvements on real estate 584

COUNTERFEITING. See Forgery.

COUNTI ES charged fbr supplying loet statutes .... 6

petition to organize 31

annexed territory part of 82

corporate powers of 83

Judgments against 88

ofllcars of 84

seal of 84

public grounds of« how may be sold, etc 85

annual exhfbit of finances of 194

each county to relievo its poor 146

actions by 86f 88

may adopt township organisation 51

See County Gommtefon^rs, County fieot, Revenue,,

TOWTUMJpS.

COUNTY ASSESSOR. See Ammor.

COUNTY ASYLUM. Seo Poor.

COUNTY CLEAK to make raqaisitioa for statutes

for county 5

proceedings sgainst dafbnltlng officers 18

msj administer oaths 81

may ca)l special session of county board 84

duty as to appeals from board 89

to report proceedings of board to printer 40

69

Paov.
COUNTY CLERK— ConUiwad.

register of deeds is ex officio 48

to keep record of county board, etc 4S

general duties of 48

election dutiea 98,88,87,48

report and record of civil townships by 58

salary and fees of 165

to levy county school lax. 184

duty sa to dlstriet school tax 184

when acts as probate Judge 606, 689

See ISItfct^ofw. Aevcniie, OJIoer.
COUNTY COMMISSIONERS may admlnistar

oaths : 31

for new counties appointed, term 81

appoint other county officers, term 88

locate county seat » 88

divide county into districts 88

how and wlMn elected, term 84, 88

duty of, as to change of county seat 32

as to county seat on public land 88

survey, plat, etc., of same 33

sale of tots 88

deed for same 38

to levv tax to pay Judgment against county. ... 33

constitute county board. 34

to procure and keep county seal 34

when and where to hold sessions 34

special sessions, how called 84

chainnan of board, when chosen, term 34

duties of. 84

tie vote of board, proceedlnn on 34

copies of proceedfnsrs of, evidence 85

may punisn contempts 36

account with coonty treasurer 86

record of orders and decisions of 85

as to roads and bridges 85

of warrants to be kept by 86

may sue in name of county 85

make orders as to county propertir 85

sell and purchase public icroonds, etc. 85

levv tax and pay indebtedness 86

audit officers^ accounts 36

power as to bridges and roads 86

See Highwa/ys.

elections 36

to equalise assessments 86

to fbrnlsh books, etc., for officers 36

safe for board 86

duties as to fiscal concerns of county 36

may procure field notes and map of county 86

what qnestions to submit to vote 124, 87, 86

mode of submitting qufstions 87

Proceeding when mijorlty for proposition ... 87
oard cannot rescind proposition 37

all warrants issned on order of board 88

session public, at county seat 38

can hear matters In session only 88

may continue business from regular session 88

what books constitute record of 38

to provide court room, Jail, offices, etc 38

Sower to erect, etc., county buildings 88
uty as to building ftind .i8

contract for buildings, how let 89

appeaUi from decisions of 39

certain officers to settle with 89

if refuse or neglect, duty of board 40

proceedings of, to oe publlsned 40

may order county property insured 47

vacancies in certain offices filled by RO

action by, to remove officers 60

submit township organisation to vote, when. . . 51

divide county into townships 51

appoint Judges of election 87

establish election precincts 87

divide county Into road districts 185

appoint supervisors for 185

fill vacancies 186

how to expend road fhnd 136

overseers of the poor 146

as such, how designated 146

may raise money to support poor 146

must institute bastardy proceedings, when 509

duties in relation to county Jails 888, 890

See FerrU% Poor^ Intoxicatina lAquon^, Ped-
dlers^ Auctioneen, Licenss, Revenue^ Elec-
titmA> Offic«r,

COUNTY JAILS, rules for government 681, 888

duties of sheriff In relation to 884, 890, 882, 884

inspection of 886, 888

their use 864

restrictions upon use of liquor in 886

prisoners to be provided with food, clothing, etc. 884
bible Ibmlshed each prisoner

910

Indsz.

Paoi.
COUNTY JAILQ—Continued.

Bolitarjr confinement In 697

impriaonment at hard labor 887

escape from 887

remoral of prisoners in case of fire. , 888

relief of poor conviet in 888

United States prisoners received in 888

fugitives fh)m justice conilned in 880

COUNTT SB AT, district oonrt clerk's office at 20

courts held at 10

county board locates, in new counties 82

when and how selected by people 8S

locati(^ of, how changed 82

on public lands 82

survey plat, etc, of 88

sale of lots.. ^ 83

certificate to purchasers, deed 83

proceeds to be fhnd for buildings 33

sheriflTs office at 43

probate judge's 46

treasurer's 47

COUNTY BUPBRINTENDENT OP SCHOOLS,

.election, term and compensation of 176

qualification by 175

has charge of school interest of comnty 175

shall divide county into districts 176

county school fhnd paid on order of 176

apportioned to districts by — 176

school visitation by 176

to supervise district clerk's reports 177

to hear appeals from district board 177

examination of teachers by 177

to appoint meeting in new district 177

appeal firom, to county board 177

to superinteadent public instruction 174

other duties of 177

to deliver books, etc., to snceessor 177

filling vacancy in office of — 178

report of, to territorial superintendent 178

to aid at territorial institute 177, 187

county institutes held by, when 187

to ftarnish district map to assessor 187

See School DistricU Putdie Schools.

COUNTY SURVEYOR, election of 84

general duties of 47

surveys b/, presumed correct 47

record!of notes and plats 48

re-survey and subdivision 48

Hworn assistanta, when 48

requiKites of notes and plats 48

boundaries, etc., followed by, when 48

assisUiuts, how paid 48

fees of 171

See OtHccT.

COUNTY TREASURER, when elected, etc 34

to receive county and other moneys 46

to pay county money on warrants only. . . . , 46

it) collector of taxes 47

office at county seat 47

when to attend at his office 47

method of accounts by 47

who may inspect same 47

settlement with countv board 47

when to inenrc county property 47

fees for collecting citv tax 77

for collection by distresB, etc 114

for deed or certificate of sale 117

fee bill of 169

to report school fund to county snp't 176

pay same to districts on his order 176

is collector of school taxes 185

See Heventte^ Officer.
COURT, copy of pleadings, etc., to be furnished to. 520

charge of 521

duty of, on separation of Jury 522

trial by 5'^

decision on 524

waiver of findings on 525

to determine and impose punishments 696

contempt of 790

decides questions of law 847

may discnarge jury, when 849

may advise acquittal 860

requisites of charge of 847, 851

to appoint time for judgment 858

duty on pronouncing judgment. 850

COURTS enumerated 47t

jurisdiction generally 479

See Namr, ofecich Omrt.
COVENANTS, what implied in grant of real prop*

erty 802

heirs and devisees, when liable upon 803

Paab
COVBNANTB-0(mtini««l.

running with land defined SSB

who bound by i 828

who are not

apportionment of burden, etc, of

for benefit of land, run with land

forfhturo addition to land....

for warrants, run with land

for quiet ez^oyment, run with land

for future assuranee, mn with land

for payment of rent, taxes, etc., run with land. . 328

what are the usual 348

formof usual 848

express necessary to bind mortgagor personally 430
of seicure, warranty, etc., damages for breach of 456
aninst incumbrances, damages for breach of. . . 466
COVERTURB, when it affects responsibility for

crime 697, 6B8

CREDITOR defined 473,465

trust fhnd, how far liable to M3

when void against 944

power, when Hen against dl6

creates a fee in favor of, when 2M

reserved continuea ownership in favor of. . . 9tt

special and benefieiil liable to MS

gift in view of death, treated as legacy in fia^or

of 8M

when competent witaeas to prove will 915

entitled to benefit of surety's seenritles. 426

performance in manner directed by, sufficient. . S9

application of performance by 390

acceptance by, necessary to satislkction 320, 333

must give receipt on payment 331

must state objections to offer

title to thing ofl!l»nd passes to, when

obligations of, as to thing offered

peribrmsnce excused if prevented by

effect of prevention, etc., of performance by

effect of refosal by, to accept performance 333

acceptance of accord by, is satisfaction

release by, how made

effect of

may rescind novation, when . .

liabilitv of partner after dissolution to

lien void against, when 430,

chattel mortgage not filed, void against -«»»

void against, unlcM filing renewed 434

contract of debtor valid against, when 465

debtor may prefer, when 465

may not, when 467

must resort to different fVinds, in what order. 574,
certain transfers, etc, of debtor void against. . .

can avoid act of debtor, when 466

transfer without value, when void against

assignment for benefit of

See Awignment.

right of letters of administration 615

of decedent, presentation of claims by

CRIME defined 806,

degree must be found by Jurv

who are capable of committing 607

committed under Bubjecdon 607

classification of parties to 606

compounding 718

when com 1 Off under different provisions 706

mitigation or punishment 707

punishable under foreign laws 796

foreign conviction or acquittal 815, 706

attempts, when punishable 707

second offenses 706

foreign conviction for former offense 790

forfeiture of property 800

must be prosecuted by indictment, when. . .884, 805
prevention of, by lawfhl resis^nce 807

by intervention of officers 808

local jurisdiction of. 81$, 815

See Velnny, Misdemeanor.

CRIME AGAINST NATURE, punishment of 730

CRIMINAL ACTION, defined ' 805. 478

remedy by, not merged in civil action ..... 478

civil pleading, etc., not evidence In 400. 544

parties to BOB

place of trial 81S, 815

time of commencing 816

removal of, before trial 89

rules of evidence in 8tt

what constitutes record of 8B0

dismibsal of 879

practice where no provision in code 081

taxation of costs in ltt« ITS, OK

to remove civil offlc«rs 611

writ of error in

iNmz.

911

Paok.
See uLrreat^ Pnitimitiaint BxaminiMUon^ Orand
Jury, PreMnUnentn IndictmatLt PtMuHngt^
PUa, ArroianmenU Demurrer, Trkd, Ver-
dict, ExeefKiofUy New TricOs, ArretL of
Judgment, Judgment, Exeeulion.

CRIMINAL CONVBRSATION, ootfta In ncVUm for,

limited 546

time of commeDcloK action for 485

CRIMINAL PROPENSITY not a defense 097

COURTESY abolished 2», 828

CUSTER COUNTY defined 1«

organization of 193

DAMAGES, in general , 456

defined 455

person wrongfally using materials of another,

Uablein.... .• 899

mAy be liquidated, when 848

may cover future loss, when 466

interest by way of 455

damages bear, when 465

allowed for breach of obligation other than

contract 455

for firaed, malice, etc 455

acceptance of principal, wairea 455

exemplary, when allowed 459, 590, 455

* not against minor, lunatic, etc 209

penal 450

MaABUBK or, for breach of contract 456

mast be clearly ascertainable 456

for non-payment of money 456

for dishonor of bills of exchange 456

for breach of covenant of seizin | 456

of right to convey 456

of warranty 456

of (^uiet enjoyment 456

agaiiieit inoumbranees 456

of agreement to convey real property. . . 457

to purchase real prop«»rty 457

to sell personal property not paid for 457
to sell personal property paid for.. . 457

to buy personal property 457

of warranty of title to pemonal property 457

of qnauty of personal property 457

of carrier's obligation to accept freight,

etc 4QB

to deliver freight 458

to deliver messages 381

of warranty of ageat'e authority 456

of promise of marriage 456

for wrongs in general 458

for wrongfiil occupation of real property. . . 458

for holding over real property 456

for conversion of personal property 459

in fkvor of lienor 459

for seduction 459

for li^uries to animals 459

for tenant^s failnro to quit after notice 469

holdingover 459

for forcible dispoaseselon 459

for injuries to trees, etc 459

value of property, how estimated in assessing,

in favor of seller 469

in favor of buyer 460

peculiar, when allowed as 460

• of title papers, how estimated in aeeesaing. 460

compensatory onlv allowed 460

must be reasonable 460

nominal 460

for delay, must be paid en redemption ftrom lien 489
difficulty of ascertaining, fnround for preventive

relief. 464

inadequacy of ground for preventive relief 464

excessive cause for new trial, when; 587

offer to liquidate 554

assessment of....» (MM, 618

writ of inquiry of 499

on injuncnoo 510

costs in certain actions limited by 546

by usurpation of office 569

for injuries causing death 590

to stock 590,691

D£AD BODY must be burled 799, 740

disposal of one *8 own 789

unlawful dissection of 748, 740

custody of 741

who charged with burial of. 45, 740

punishment for not burying 740. 741

mnlawful removal of 741

purchase of 741

violating place of burial 741

attaching for debt 741

• removal of cemetery , 741

Page.

DEAD BODY —Continued.

interference with burial of 742

inquests upon 48, 45

DB ATB, without heirs, meaning of. 8oi

gift in view of 804

§eeO^(.

proposal revoked by 836

nirlng terminates by, when 868

employment 867

vacates office of trustee 887

effect of, on agency HSH

of party to action 578, 588, 41X)

when presumed 568

liability for Injury causing 590

of executor or administrator, effect of 621

civil, defined 799

DEATH WARRANT 861

DEBTOR defined 478, 465

performance roust be made by or for 889

offer of performance must be made by or for... . 880

mav require receipt upon payment 881

rignts of, upon prevention m performance 888

Joint, effect of release of 884

contracts of. when valid against creditor 465

may prefer one creditor to another 465

certain trausfers, etc.. of, void against creditors 466

when creditor can avoid act of. 466

insolvent, may assign for beueflt of creditors. . . 467

defined 467

no preferences may be given by 780, 467

See Af5si(jnment.

examination of, In supplementary proceedings. 548

to Judgment debtor, may pay to sheriff 538, 544

may be examined 544

discharge of, from lmpri»onment 888, 596

DEBTOR AND CREDITOR, special relations of . . 465
See Asuignmcnt, Creditor, Debtor, Fraiudulent
Jnalrvments.

DECEDENT. See £fi£«Ui» o/ Decedents.

DECEIT an essential element of fraud 381

when actionable 846

DECREE of probate court 657

See Judgment.

DEED. See Transfer, Orant,

DEFAMATION, definition of 310

right of protection ft-om 810

See Libeh Slander.

DEFAULT. JudKment by 679, 518

DEFEASANCE of transfer may be proved, when. . 480
must be recorded with grant 488, 488

DEFENSE after Judgment SQ8, 619, 495

how suted in answer 498

sham and irrelevant, struck out 498

DEFENDANT in civil actions, who is 488

who may be Joined as 489

unreasonable defense bv 498

when may defend after Judgment 508, 510, 495

Jolntlv or severally liable 496

pleadings bv 497

waiver of ODjections to complaint by 498

must answer amended complaint 497

may answer and demur 496

designated by fictitious name, when 508

effect of appearance by 518, 496

when may nirnish copy, pleadings, etc., to court 590

may offer compromise 554

several, Judgment against one or more 588

when papers need not be served upon 566

In Crimihal Casis, who is 806

rights of. In general 806

designated by fictitious name, when . . . .817, 881, 885
must be taken before, magistrate wItJiont de-
lay 890, 818

rights of, on preliminary hearing a<l, 888

must be prosecuted bv indictment, when. . .806, 884

may challenge grand Jurors, when 886

arraignment of. 884, 886

entitled to counsel before 885

must give true name upon 885

entitled to time to answer on 886

how mav answer indictment 886

motion by, to set aside Indictment 836

when discharged on granting 886

pleadings by 887

oischarged on sustaining demurrer, when 887

may plead on overruling demurrer 888

See Demurrer.
plea of— &ee Plea.

may apply for removal of action, when 889

svver&i, must Join in challenge H48

couvlctloo or acquittal of one or more. 888

tried separatel V, when 848

Jury not agreeing as to all 854

912

iNiDBJC.

Pags.
DEPENDANT— Continued.

when mast be present at trial 840

on arraignment 884

on receiving verdict 8S3

for jndgment 868

discharged during trial, when 860, 849, 848

on jndgment of acqalttal, when 866

acquitial of joint, to beceme witness 848

when held for higher offense 849

presumed innocent 847

in case of reasonable doubt, to be acquitted. . . . 847

convicted of lowest degree 848

disposition of, during trial 851

or verdict against him 856

securing presence of, for judgment 85d

at the trial 840

for arraignment — 886

may take exceptions, in what cases 866, 850

See Kxceptiaits.

may move for new trial 9S7

See New Trial.

In arrest of judgment 867

what may show agtunst judgmcot 850

See Writ of Error, Bad, Trial, Uabects Corpus,
Indictment.

in josllce's coort, p'ea of 690

muet be present at trial 691

DEFINITIONS, abandonment 416

adult 208

annnity 319

appnrtenancee 230

bnildtng 768

burning 763

business days 474

charter-party 384

chattel, real 886

interest 236

children 473

company 786

compound interest 475

concealment 406

conditional limitation 237

consideration 339

consignee 374

consignor 374

corruptly 800

credits 101

onstomary 474

declaration of trust 986

depose 475

detriment 466

deviation 416

f>roper 415
mproper 416

diligence • 473

ordinary 473

great 478

dishonor 445

dominant tenement 289

drawee 447

drawer 447

dwelling house 765

escrow 800

estate in fee 285

of flreehold 2F4

freight 374

good faith 478

impossibility 339

income 234

incnmbrance . . 803

indenture 226

inhabited building 783

Intent to defraud 801

knowingly 800

lots, total. 415

partial 415

actual total 416

couBtrnctive total 415

maliciously 800

maturity apparent 444

month 475

neglect .-. .. 800

negligent 800

negligently 800

night lime 868, 766

object of contract 888

owner 689

peace officer 800, 817

perild of the sea 380

person 474

possibility 839

price 848

protest of bill ^ 451

Pa«b.
DBFINITIONS-OontiAMed.

public document 502

re-insarance 412

reversion 886

seaworthiness 414

servient tenement 28i

several .474

shipping 2S1

appurtenances of 961

signature 475,801,881

sUte 4W

sub-contractor ( , SS9

subscription 475

testify 4135

thirdpersons 474

usnal 474

valnable consideration 474

value 450, 4aO 435

willfkilly 800

year 475

DEGREE of crime must be found by jury 854, 806

DELIVERY of grant to grantee necessarilv abso-
lute 800

may be made to stranger In escrow 800

of gia necessary to its validity 804

datles of seller before 819

of goods sold, when to be made 349, 3S0

where to be made 849

expense of, bv whom borne 849

notice of choice as to mode of. .-. 3S0

buyer's direclioKs as to« to be followed 850

when may be demanded 3S0

written contract takes effect on 841

of written contract, effect of. 341

of thing deposited, must be made on demand.. 854

demand of, necessary 3S4

must be mado, where SB4

by joint ownerst etc ZS4

of freight, how to be made 875

to holder of bill of lading sulllclent 378

of messages, how to be made 378

of luggage, when to be made 871

essential to pledge 436

of real property, when specifically enforced 481

of personal property, when specifically enforced 40S
DEMAND of thing wrongfully withheld, when nec-

essarv 346

of goods sold, necessary 819

thing deposited, mnst be delivered on 864

need not be d^lvered without 854

for return of thing lent, when neeessaiy 869

of performanee before sale of pledge 486

that trial be had in proper county 48S

of copy of complaint.

ili< " "

of relief in complaint 497

of books and papers in quo warranto 660

DEMURRER to complaint, time for 497

grounds for 487

what shall specify 497

may be to the whole or part of it 497

to part and answer to reoidne 490

action severed on declaion of, when SO

certain objections not taken by, waived-... 498

to answer 498

to reply 499

decision of, pleading over after, when .•601

judgment upon 595

frivolous, iudgment on 619

in proceeding against joint debtor 558

in jtistice's court Si7

toacoosaCioB against oflloer 819

to fndictment, when and how put in 897

onuaes for 887

requisites of 8S7

hearing of 887

judgment sustaining, effect of 887

against defendant unon, when 89B

certain objections not taken by^ WBlved 888^ 867
See Pleadings.

DEPOSIT defined 868

voluntary 8SS

involuntary 868

for keeping 889

for exchange 8S8

Obligations of depositary on 354

See Depotitaru-

Fob KKBPiiia, obligations of parties to 8S4, S66

gratuttotu, defined 8B6

Involuntary is .•966

obligation of depositary on 856

for reward, called storage ZS&

degree of care requued on 868

rate of compensation on 866

Indbx.

913

Pagv.
DKFOSIT~Cont<ntied.

how terminated 866

with innkeepers 366

8ee Innkeeper.

of thing found 366

BeefVmier.

for exchange 867

of money offered In payment of debt, how made 331

In court, when may im ordered 517

le eqnivalent to bail 874

as secarlty on arrent 506

on appeal 661, 668

of summons in post oflke Vi6

DBPOSITAKY defined 868

who bound to become 858

mnst deliver deposit on demand 864

not bound to delirer withont demand 854

mnst dellTor where 854

mnst give notice to depositor of advwse alalm. 854
relieved fh>m liability to third person by giving

notice 864

may deliver to joint owners In shares 354

to be indemnUed for damage and expenses 854

of animals, mnst provide snltably for them 855

may not use deposit , — ... 855

liability of, during wresigftd use of deposit 855

may sell deposit, what 865

must give information of eanse of loss. 355

duties and liabilities oC, In respect to servlee. . . 356

liability of, for negligence, how limited 855

gratuitous, must use slight care 355

duties of, cease when 355

when creditor Is 382

for hire, defined 355

mnst use ordinary care 866

rlghtsof 866

when person offering thing In performance is. . 883

has insurable interest 406

lienof. 439

issue of fraudulent reeeipt by 787

Bee Deposit, DepoeiUw.

DJCP081TI0K, cosuof toking 546

defined 550

when may be used 56l»

may be taken 560

before whom may be taken 560

taking and authentication of. 660

exceptions to 561

making of, when deemed complete 715

disclosure of, when pnnlshed 88i, 7S1

DBPOeiTOR defined 868

mnst indemnify depositary for what 8M

depositary to pve eertain information to 365

nuy terminate deposit at any time 366, 854

See Depottt, Depositorif.

DBPUTIBSTT 10

DBSCBNT. east, effectof ... 484

DETAINER. See Fofre^9 Bntry and Detainer.
DETERMINATION complete, power tff eonrt to

make 401, 688

of oourt or ofloer, how pleaded 888, 600

of claims to real property 684

DEVISE, what may pasa by 311

who may take by 811

subject to lien, when 814

takes partial eflbct only, when 814

when is revoked by translbr 815

when does not lapse by death of devlBee 815

to snbscriblng witness, when void 815

clear, caAnot oe controlled by words less clear. 810

embraeea property under power^ when 817

of all testators real property, effsci of. 817

of residue of estate, effect or. 817

to ''heirs," "^relatieBs," etc, effect of 817

to a Glass, i&elndea whom 818

vests, when 818

how divested 818

conditional, defined 318

vests, when 818

to several persons, effect of 819

when not to impair rights of purchaser, etc.... 880

specific, title passes by^ 380

See Bequeet^ Legaew, fVUl.

DBYE8BE may petition probate of will 607

may contest will 600

notice to, on contest after probate 611

may sue for sttate pending administration 684

entitled to possession, when 684

^ possession of executor is possession of, when. . 648

fiabiUtyfor tesUtor's debts 881

for mortgage debt 488

DI8C0VSBT of property 518

action for 565

Paox.

DISEASE, exposli^; person with contagions 7B7

DISMISSAL of complaint 588, 680

for want of Jnrlsaictlon, costs on 547

unless security for costs given, when 549

of appeal 668, 668, 551, 590

of charge by grand Jury, eflisct of 680

of writ of error 866

of criminal sctlon 879

DISORDERLY HOUSE 786

keeping or letting 748

DISSECTION. See Dead BfHly.

DISTRIBUTION of decedent's estote .605, 651, 658

of Intestate's property, how made 381

See .Succession.
DISTRICT ATTORNEY, election and term of

oAoe 81

duties of- 81

to receive only lawftil fees 81

vacancies in, filling same 88

salary and fees of 164

action by, against corporations 568

for usurping ofllce 568

to prosecute bastardy proceeding 599

may appear l>eforo grand Jury 888

substitute for, appointed when 852

may issue subpoenas 867

See Offlcer.
DISTRICT COURT, for district, terms of 106, 197, 17

has federal Jurisdiction 197, 17

pending cases in, when triable 197

for snb-divislon, terms of 80, 18

expenses of. how paid 19

judge may appoint term of, in any county. . 80

Jurfsdlction of criminal actions 806

adjournment of 81, 90

clerk of 80

to appoint bailiffs 173

jurisdiction of 806, 481

original 481

appellate 659, 481

power of, on appeal from justice 688

from county board 39

from probate court 661

for what purpose's always open 481

Judge or clerk of, may issue snbpcena Uff

may take acknowledgments, etc 906

deposition 669

transfer of issue to, from probate court 6 6

may alter or vacate towns 86

final decisions of, how reviewable 868, 549, 807

Judges of, are magistrates 816

may prescribe rules for' jails 881

DISTURBANCE of rellgioaa meetings 701

ofmeetings of electors 704

of legislature 709

of proceedings of court or referee 780

of nineral 748

of other lawfhl meetings 757

DITCH CORPORATIONS 885

See Corporation.

DIVORCE, on ground of nnllity 814

where party was under age 814

where former husband, etc., was living 814

where party was of unsound mind 814

where consMit obtained by fraud, etc 814

for physical incapacity 814

when action for, must be brought 815

rights of children after 815

deposition of children after 815

Judgment of, how far conclusive 815

on ground of adultery 815

when to be denied 817, 816

time of commencing action for 818

effect of, on children. 817

who marry after 818

on other grounds 81A

certain causes to continue two years 816

when to be denied 816, 817

other causes for denying 818

limitation of actions for 818

plaintiff must be resident 318

presumption as to domlcil 818

evidence necessary to granting 818

when denied, certain relief allowed 318

alimony pending action for 818

disposition of children 810

support of wife and children 819

disposition of homestead 819

enforcement of orders 819

service by publication in 495

no defense aftf>r judgment 495

DOMESTIC ANIMALS. See Marks and Bramde,
tietraye^ Herd Law.

914

Indrx.

Paob.

DOWER »boU0h«d .VKK9SI2

DRUGGIST. See Apothecary.

DRITNKARD, habit«*l, selttag llqaor to 798

DRUl^KBNNSHS. Hee InUuneaWm.

DUEL, definition of 788

punishment for flghtiog 732

of secocdp, etc 732

for challenging or acceptUig 732

challenge defined 733

poBting for not fighting 733

out of territory 738,796

place of trial, of 733,614

limlution of wltneaa' privilege 733

DURBSSdefined 336

will procured by, may be dented prtbate 811

contract procured by, voidable M6, 336

when a defense in crime 607

E AS KMENT defined 238

partition of harden of 839

who may Q0e 239

who may enforce 239

passes with property to which it ii incident 802

See SKTvitudeH.

EAVESDROPPING 757

EDUCATION. See PtMic Edueatiim.

EDUCATIONAL CORPORATIONS. See Cnrpo-
rationft.

ELECTION of members of leglalalore 1

of district attorneys 21

of officers for new eonntlea 32

to locate or change conntr-aeat. . . ^ 38

of county officers 84

to sell pnblic gronnds, etc 86, 87

to levy special tax 37

to fill vacanclee W, 98, 50

for township organization 51

of tow ti ship officers 64

- precinct, each township in .* 65

to incorporate town or city 78

of town or city officers 73

of Huperintenpeut of public schools 175

general, when held 87

precincts 87

judges and clerks 87, 88

oath of 88

notice of 88

poll, when opened and closed 89

judge rejecting legal vole 80

manner of voting at 89

challenging vote at 89

false swearing on 89

bal lot box 90

ballot not to be opened 90

clerks to keep poll list 90

officers duty on adiournmcnt 90

Judges duty to cliallenge 90

may maintain order 90

canvass to be public 91

when and now made 91

poll books, form of 96, 91

box, etc., disposition of 91

returns, neglect to delimr 98

county canvassers, duties 94, 92

tie vote, how decided 92

duties of territorial caavaasera 98

when returns not received 98

canvass in connties forming one district 94

officers, compensation of ,J 94

returns, not relhsed for certain causes 94

misconduct by officers of 96

plurality elects 95

no civil process served oil day of 96

rules for condoot of eanvaas 95

who entitled to vote at 95

who eligible to office 96

secretary to provide forms 96

to note date of receiving retaroe. 96

betting upon ^... 702

bribery, menace, etc 701, 70S

fornishing money, etc., for 702

defrauding elector of his vote 702

obstructing electors attending 702

voting illegally 708'

procuring illegal votes 708

illegal ref strv 708

personating qualified voter 703

registering or voting under telse pretense 708

preventing electors firom voting 704

riotous condact at i 704

disobeying judges 704

destroying ballots or boxes 705

sammary arrest tor disturbance ^tM

keeping false poll list 705

Page.

ELECTION— Oont<nu«cl.

fUaely canvassing or retarning votes 7Q&

mlscondnct by judges 705

defined 706

irregularities in, no defense r. 706

rights of persons lawfolly interfering 7U6

good faith in offering to vote 706

selling llgnora <w day of 706

near polls 7?1

neglect to canvass returns 723

contest of legislative 199

EMBANKMENTS, injury to 7^2

EMBEZZLEMENT, definition of 774

by ministerial officer 717

bV public officer 760

claim of title a defenae 771

intent to restore^ no defense 775

restoration may mitigate 77;>

ImBiahmeat lor 77o
ocal jurisdletionof. 815

of money, etc, indictment for 832

EMPLOYE defined 964

entitled to indenanlficati^n, whem 364, 8G

when not 365

gratuitous obligations of 9G5

wltb power off attorney, muat act 365

for reward, obligations of 865

for his own benefit, ohllgatioeis of a&

canaot be bound for more than two years 865

must obey employer

must serve according to usage

must use reasonable skill

whatever skill he has

what acquired by, belongs to employer —

must give accounts 9S6

not bound to deliver without demand

must give preference to emplsyer's business.

to several employers, in order

liable to employer far negligence

how far liable for snbstitote

surviving, when, to act

discharged by notice of death, etc., of emi^oyer ^
when to ctmtinue after eraployer*s death, etc. . . 967
compensation to, from employer's successor,

when 8S7

may quit service, when and how 967

may be discharged for Caul t. 387

compensation or, when dismissed forcanae ... 387

quitting for caase 967

See Kmpli}ymei\U £mp{oi/er, Agetii, Factor^
Seamariy Mate^ ShipmctHter, SMp*9 Manager.

EMPLOYER defined TT.. 964

to IndemnlQr smiploye fiMT expMises 964

for loss osnsed by his nejgllgenoe 965

when not bound to indemnify employe 965

cannot enforce contract of service beyond two

years :

diieotions of, must bs obsyed

entltied tb all acquired in oonrse of service..

accounts

employment tenilnatsd by dsath of, etc, whea 3b7

may be terminated by, when 967

See KnipinumenU Empk^f^ JPHneipal, Magter.

EMPLOYMENT defined \^. 964

obligations of employer nndsr 364

See Employer.

obligations of employe under

See Employe.

termination of ov4

when servloe must be ceatinusd lAler 997

may be terminated by either party, when 967

by employer, when. . : 987

by employe, when 967

right of empfoye to fay, after termination of . . . ~ ~
contract for personal, sol speeifleaUy eafbreed.

ESCHEAT, when property passes by

ENTRY, on real esUte, action after

on calendar

of verdict

of orders 4R1

ofjndgment 481, 5:»

official, evidence of what 563

of orders and decrees ef probate conrt. 657

ERRORS, when aliaU be dlsisfp^ded .872, 832, 606

in law, cause for new trial &27

writs of, when allowed 807,959

See WrU of Mirror^ KxoepUom* New lYiof .

ESCAPE and aiding therein 887, 712

permltttBg »717

local jurisdiction of 815

retaking after

ESTATES IN REAL PROPERTY. See Reai
Property^ RenuUndLer^ BevenUm.

Imbbz.

915

Paos.
SSTATBS OP DSCSDBNTS, Jiirlfl«led«iO««r...
power of apecUl adminlstrmior orer

of ezecQtor ML

iaTentory, apprmisemeiit and posMSSkm or

. .. .ttft, 6M, 642

embezslement, etc., <^. SB

aUotment to liunily MS

preferred claimB Against &7

aammary adminUtratton of 687

claims aininst, presentation of , etc &B

sales of, in general 63S

of personal propertj 688

of real estate.... 884

maaagement of 64S

payment of debts doe from 649

distribution of, before final settlement 661

and final settlement 658

and partition of. 863

See JSxeetOor, AdnUmMroiMtr, fF4B, LieUen
2Vsfainentary, etc., Sutoetmkm.

B8TRAY8, by whom and in what case taken ap. . . . IM

notice of 154

appraisement by Jnstioe's jnry 164

notice posted by jostlce 155

justice's report to register of deeds 166

record of appraisement 165

in case of two or more animals 155

proceedings by claimant 186

when person taking np to hare 186

whentobesold 155

proceeds, how disposed of 156

description filed with treaaarer 156

feea first lien 156

penalty for unlawful taking op 156

using permitted 156

lose of, when ezcnsed 157

place of sale of 157

fees in matter of 172

penalty for concealing 795

BVICnON, Judgment of 666

BVIDENCJB of consideration, writing is presomp-

tlve 340

of notice of protest, notary's record is 94

copy county board's proceedim^ received am.,. 35

treasurer's deed, of what conclnsive. 1 18

of what prima iseie 118

certificate of sale, of what presomptiTS 116

of msrriage, certificate Is preaomptive 814

of afce of apprentice, Indentore is presumptive 827
of oral declarations, not received t# ex|rfain

will 816,318

of ownership, mav be required by finder 366

of pnblLcation, amdavii of printer, etc, when. .

401, «H, 568
copy of articles of Ineorpofatlon received as. . . 2S5
of new or continuing contract, what snflcient. . 487

insnfilciency of. cause for new trial 587

civil pleading, not to be used in criminal case. .

644, 440

sherliTs certificate of sale is, of what 688

deed is, df what 541

general provisions concerning 668, 465

of foreign laws 661

Copies of foreign records received as 688

copy of jostictTs docket is, of what 608

ackikowledged instrument received as 810, 562

record or copy ot when 668

ofiBctal eutrtes, of what prima facie 663

record of mortgage foreclosore is, of what 600

of negligence, killing stock by cam, etc, Is 680

probate court may compel production of 605

of title, etc., in Justice's conn not to be given . . 074

Justice's docket, of what prima fhete 686

of convict of peijury, when ezclnded 715

destroying 716

false, offering 716

preparing 716

withholding, for reward 718

suppression of 719

grand Jury to receive, what 8K7

what admissible under plea of not guilty 880

rules of, In crimloal case 848

in conspiracy, what necessary 848

of accomplice, not snfflcient, when 848

of Ihlse preunse, what neoessary 848

of seduction, what necessary 848

on trial for bigamy 851

for forging bank note, ete 851

for murder 851

common barratry 719

in action for divorce 818

See PrtstiinfiCiofi.

PaoH.

EXAMINATIOIT of baU S06

of debtor ta supplementary proceedings 648

of parties 566

of witnesses 660,566

oral defined 560

of corporations 888

before m^fistrate 881

BXCHANGJB defined 388

contract of, when to be in writing, etc 358

rights and obligations of parties U> , . 868

of money, warranty upon .' 358

title passes bv, when 304

deposit for, oefined 353

regulated 357

factor nas not authority to 398

upon dishonor of foreign bills 461, 468

BXCUSABLB HOMICIDE. See Honriefde.

BXCBFTION ineivil cases

requisites ot 686

to verdict for insnlBciency of evidence 586

after Judgment. 586

to charge of the court BB

settlement of. 586

if Judge refoses to allow 586

if trial Judge oat of offlce 587

to sureties 688, 505, 508. 568, 515

todeposition 561

on trial of Indictment 855

to matters of law, in what cases 866, 855

bill of, to be settled and signed 856

settlement of 866

deemed abandoned, when 856

what to contain 865,866

review of 863

BXCISB. See InUtrieatino Liquor.
BXBCUTOR, who entitled to letters as, though not

named 380

Kwer to, of appointing executor void 380
8 no power until he Has qoallfled 380

executor of. has no power as such 614, 381

actions against, when to be commenced 487

may sue without Joining party In interest 488

costa sgainst 632, 548

may enforce Judgment 581

mav sue for Injury caosing death 500

Jurisdiction of probate court over 083, 605

may petition for probate of will 607

when presomed to have renounced trust. 608

when to have notice of petition for probate 608

citation to, on contest of will 611

power of, ceases on revocation of probate 611

may be restrained, pending proof of lost will.. . 618

letters issued to person named as, when 613

who not competent as 613

one may act for all, when 614

act of majoritv valid 614

oath and bon4lof 617

suspension of. 619, 688

revocation of letters of ... .658, 619, 690, 088, 632, 641

appointed after letters of administration 681

efl'ect of death, disability, etc., of. 681

resignation of 681

return of inventory and appraisement by.

886, 683, 688

not discharged from debt to testator, when 684

entitled to possession of tcstatoi's estate 684

duties in allotment to family 686

as to claims against esUte 688

when a creditor of testator 638

duties of. in sale of property of estate 633, 648

cannot purchase property of testator. . . ... 648

powers and duties of, geuerally 618

conveyances by 644

liabilities and compensation of 645

acconnting and settlement by 646

discharge of 655

may sue for forcible entry, etc.. when 679

See KHaU* o/ Decedents, WQL
BXBCUTION may issue, when 831

only by leave of court, when 631

what Judgments may be enforced by 581

kinds of. 538

to what counties may be Issued 538

against the oerson, when 538

requisites <n. 538

against property ,. 588

heirs, devisees, etc 688

the person 538

mairied women 588

for specific property 684, 588

when and where returnable 533

what property liable to 583

ofllcer*s proceedings on

916

IWDSZ.

I

Paoi.

BXECUTION-GKmMniMd.

of property claimed by thi»l person 534

how to be executed .... 533

levy under .^. -. 533

when a lien on personality .^ 588

what property applied without sale 533

debts to defendant In, paid to sheriff^ 544, 538

exemption from 684

See JSxcempiifm.

sale under, manner of 537

sheriff cannot bid at 537

postponement of 537

proceeds of, how disposed of 538, 637

proceeding when no bidders at 537

of personality, notice of 536

of realty, notice of 536

where and by whom made 682, 687

when absolute 538

when subject to redemption 538

certificate of 638

what title passes by 641, 538

confirmation of 538

redemption from 538

See Redemption.

waste after 685, 540

rents, etc., after, who to receive 640

deed upon 541

when and by whom made 539, 641

effect of 541

effect of reversal on 496, 541

neglect, etc., of officen as to 642

return of, by mail 642

proceedings in aid of 543

stay of, on appeal 551, 552

for balance after mortgage sale 581

in case of death of party 681

from probate court 657

on justice's judgment 683

of judgment in criminal action 860, 863

KXECUTKIX, marriage extinguishes authority of,

when 61

See Execvlor.

EXEMPTION of homestead 627, 16

from taxation 292, 96

of pro[)erty of cemetery corporation 292

from execution or other process 634

absolute 534

additional 634

how selected 635

when muHt be claimed, 636

in what cases not allowed 636

of partnership 636

for flues, etc., in criminal cases 536, 169

upon bonds, etc., in criminal cases 636

of debtor's earnings 646

EXTRADITION, general provisions 878

unlawful reward for services in 707

EXTREME CRUELTY defined 216

is a cause for dlvtirce 216

EXTORTION defined 776

by force or fear, how uunished 775

under color of ofticial right. 776

sending threatening letters 776

obtaining .signature by threat, etc 775

attempted 776

FACT, mistake of, defined 337

(juestions of, not in issue, how tried 482

nnding.s of, liow waived 625

<'ontrol general verflict 524

ignorance ot, see MUtakc.

determined by jury 847

FACTOR <iefincd 309, 393

must obey instructions ,.». 369

may sell on credit 3G9

guarantying sales, liability of 369

can not refu.se to guaranty, when 369

anthoritv of, actnial 303

ostensible , 393

gimranty by, need not be in writing 422

lien of 439

See Agency^ Aoent, Emplovment.

liable to arrest m civil case 603

RAIU'RE of proof 602

FALSE report of court proceedings 720

certificate, by public oflftoer, 723

name, bringing action in 723

personation of another 776

pretences, obtaining property by 777

evidence 848

manifest, invoice, etc 778

weights and measures, using. . .'. 779

keeping... 779

seizure of 779

FALSE^-OmMfllMl.

destruction of 7?9

weight, marking on package, etc 779

claim lor inaurance , 778

statement, to affect market price 757

imprisonment, action for 485^ 646

FATHER, right of, to letters of administralion.aiS. 07

of guardlansUp .
See Parent and ChOd.

FEES of officers 164,

taking excessive

for services not rendered

FEIGNED ISSUES abolished

PELON Y defined 805,

punishment of

accessory to

See Aeeutory.
What abs Felonies:

procuring name to be recfstered improperiy. . .

Sersonatine qualified vocer at election
estroytng Dallots or boxes »

bribery of executive officer

accepting bribe by executive officer

preventing lealslature from meeting

compelling aujoumment of legislature

compelling or preventing official act of legisla-
ture

altering draft of bill

engrossed copy of bill

bribery of member of legislature 2,

member receiving bribe or "log rolling' ' . . . .
judicial officer, oiferlng bribe to

accepting bribe

rescue of prisoner, when

escape from prison, when 887,

of felon, aiding in

J public records, etc., destroying or stealing. . . .
alse or forged Instrument, filing, recording, etc

perjury 80,

false evidence, offering

preparing

emoesuement, or injury to records by officer..

resisting process, etc.. when 811,

compounding felony

fraud as to birth of child

substituting one child for another

conspiracy against public peace

suicide, attempting

aiding, or an attempt .•'... .

murder 725^

manslaughter 726,

maiming

kidnapping ;

attempts to kill

robbery, two degrees

assault with deadly weapon

with intent to commit felony

dueling

challenge, sending, bearing or accepting

assault with dangerous weapon

rape .'

Bcductlon .*. ra6,

abduction

adultery

desertion of child

attempt to procure abortion

child stealing

bigamy

marriage with one already married

incest

crime against nature

unlawful removal of corpse

purchase of corpse

violating burial place

poisoning food^ wells, etc

aiding in riot, m what cases

embezzlement, etc., by public officer 124,

false bill of lading

' willfully Iniuring public buUdinga

seizing military stores

arson, four degrees 762,

burglary, four degrees 764^

forgery, four degrees 7M,

removing or destroying mortgaged chattels

grand larceny

receiving stolen pioperty

embezzlement 774.

extortion by force or threat

sending threatening letten

falsely personating another ^.'..

false pretenses, obtaining property by

mock auctions

vessels, destroying, to defraud insurer

173
707
707
482
696

G99

708
703
796
707
707
708
709

TOO

709
709
710

710
712
712
713
714
714
714
716
716
717
717
71S
722
722
724
T2&
72S

728

729

7:»

731
732

732

732

732

734

735

737

736

737

737

738

7S8

739

739

739

739

741

741

741

748

758

760

7S2

762

7«2

764

765

7TO

771

772

773

775

775

776

776

777

777

778

Indkz.

917

Pa«.

FELONY— GoniintMd.

fitting out for such puiTpose 778

making zalse manifest, inyoice, otc 778

destroyiiig insured property.' 778

presenting false claim of loss 778

corporation, fraud in organizing 781

in accounts , 782, 78S

passage tickets, unlawful sale of 785

conspiracy to sell 785

bill of lading, issuing fictitious 787

warehouse receipt, issuing fictitious 787

duplicate, not so marked , 787

delivering property without canceling 787

selling property received for carriage or stor-
age 787

railroad, injuring or obstructing 788

highway, injuryto.. 788

tou house or turnpike, injury to 788

burning property, not subject of arson. 790

defacing houseoi worship 790

blowing up buildings 790

attempt to blow up ouildlng 790

removing or tnjunng piles 792

maskluK or removing signal light.... 792

mutHattng written instrument 792

destroying election returns 792

books in public library, etc 798

injuring gas or water pipes 796

fidse swearing on voting. '89

firaudolent tax receipt or duplicate. 121

FEMALE, when liable to arrest m civil ease. 604

males preferred to. in granting letters 615

pregnant, under death sentenoe 862

FERRIES, unlawful without lease 188

how far apart on same stream 133

county board lease 183

rates on certain rivers limited 133

in unorganized counties « 134

duties of lessees 134

penalty for unlawful 756, 184

moneys received from, go to school fund 185

small streams excepted 185

forfeiture of lease 185

violation of bond 756

on corporate wagonroad 278

FlCimOUS NAME of partnership^ use of 400

defendant may be designated by, when

817, 881, 602

FINDER not bound to take charge of thing 356

taking charge, is depositary for hire 856

must give notice to owner 356

may require proof of title 356

entitled to compensation 867

may exonorate himself by storing thing 867

may sell thing, when and how 357

owner may exonerate himself from claims of,

how 857

absolutely entitled to thing abandoned 357

duties of 157

See Estrays.

appropriating thing, when owner known 772

FINDINGS by court 525

of law and fact, separate 525

walverof 525

parties to prepare, when 525

of referees, eflbctof 526

in case of counter-claim for improvements. ... 584

of facts, control general verdict. 524

by probate court 687

FINS3, arrest in action for 503

action for, in justice's court, when 678

judgment imposins 86d, 692

when collected, paid to school fund 692

may be added to imprisonment. 860, 799

paid to county general fund, when 802

judgment for. uen of 860

may be collected by execution 871, 860

FIRE, refusing aid at 766

obstructing attempts to extinguish.. 756

involuntary depont in case of. 358

FIRE ARMS, discharging in public place 760

FIXTURES defined 230

who entitled to 297

FOOD, poisoning 748

adulterating 755

selling, etc., when spoiled 755

FORCE, when lawfully used 807, 211, 733

FORCIBLE ENTRY AND DETAINER, action for

Jurisdiction 678

when maintainable .... 678

notice to quit, when reouired 287, 679

who may oring action tor 679

complalntin 679

60

Pa«s.
FORCIBLE ENTRY— GbnUfiued.

when title, etc., to land comes in question 679

summons, when returnable 679

adjournments limited 679

Judgment In 679

cannot be Joined with other action 679

execution must be served in day time 679

requisites of 684

appealin 679

is a misdemeanor 759

FORECLOSURE of mortgage 433, 431, 578

by advertisement 578

by action, general provisions as to 581

receiverln 616

judgment in... 581, 505

place of trial 581, 492

guardian of infant, defendant in 489

service of summons by publication 495

no notice of lis pendens need be filed 498

of pledge 487

See Mortgaue, Pledfe.

of mechanic's lien 589

of liens on chattels 580

FOREIGN CORPORATION. See Corporation,
bill of exchange. See Bf& of Sxehonge.

laws, how proved 562

wHl, probate of 610

convict. Importing 722

conviction or acquittal, effect of 799, 796

FORFEITURE, agreement for, when void 428

relief to be given against 454

not specifically enforced 461

action for, limitation of 486, 485

place of trial of 492

of property to territory 570

and eviction, judgment of 586

J udgment of, against corporation 570

action for, in Justice's court, when 673

not imposed for suicide 724

of office, by acting without qualifying 706

by executive officer 707

for selling appointment 706

by member ox legislature 710

by judicial officer ' 710

by clerk or register 714

for buying claims, etc 720

for not reporting prise fight 750

of property, by conviction for crime 800

when collected, goes to county fund 802

FORGERY in first degree, definitions of 766

punishment 01 770

in second degree, definitions of 766, 769

punishment of 770

in third degree, definitions of 769, 770

punishment of 770

in fourth degree, definitions of "768, 770

punishment of 770

of wills, deeds, etc. 766

of public securities 766

of public and corporate seals 766

or destruction of records 767

false certificate of acknowledgment 767

of bank notes 767

evidence on trial for 851

uttering forged evidence of debt 767, 768

having forged Instruments with intent to atter 768

spurious or canceled certificates of stock 768

false evidences of corporate debt 769

counterfeiting coin 769

of process and other instruments 769

in public accounts 769

of passage tickets 770

ol united States stamps 770

in corporation accounts 770

having counterfeit coin for uttering 770

in accounts of employer 770

uttering instrument, etc., same as making 770

using one's own name 771

erasures, etc 771

fictitious names 771

indictment for 882

FORMER ACQUITTAL. See AemMUA,
FORMER CONVICTION. See Convictlofi.

FORMS, members' oath 2

attorneys' oath 26

coroner's warrant for Jurors. . 44

oath to coroner's jury 44

witnesses' before same 44

verdict of coroner's jury 44

numerical Indices 41

for civil townships 65, 70

notice of election 88

oath of election Judges and clerks 88

918

1nDB;5.

Paok.

FORMS— Continued. ^

oath to voter challenged 89

oath to tax liAts 100

assessor's oath to roll 101

assessment roll 106, 106

tax list and duplicate 110

treasurer's tax receipt Ill

cash book 112

sale book 116

certificate of sale 116

tax deed 118

warrant book }*1

miner's affidavit of labor 144

for schools, etc 187, 190

notice of corporate assessment 264

of sale of stock for assessment 265

grant of real property 302

certiflcates of acknowledgment .431, 806

usual covenants 848

real mortgage .' 482

chattel mortgage 483

oath to jurors 521

to witness 658

to interpreter 564

to imprisoned debtor o»7

of action abolished 482

of pleading abolished 497

letters .testamentary, etc i 614

warrant of arrest on complaint 690

oath to jury in justice's court 691

officer in charge of Jury 6*1

warrant of arrest on information 817

commitment for examination 821

order holding or discharging defendant 822

commitment on holding to answer 828

oath to grand jurors 826

bench warrant upon presentment 829

indictment 884

pleas to indictment 838

bench warrant upon conviction 859

subpoena in criminal case 868

summons against corporation 871

search warrant 876

rejurnof 877

FRANCHISE, corporate, sale of 267

action against claimants of 568, 569

FRA Ul>, divorce on account of 214, 216

instruments in execution of power, how affect-
ed by 247

will procured by. may be denied probate 811

in obtaining consent to contract 837

actual or constructive 837

actual defined 337

constructive defined. . : .* 337

a question of fact, when 466, 337

contract not in writing through, may be en-
forced 840

error in contract caused by. to be corrected — 341
contract exempting from liability for, void — 343

consent obtained by, may be rescinded 844

right to rescind for, not taken away by agree-
ment * — 345

thing gained by, held in tru«t 383

certain transactions of trustee deemed 384

agent cannot have authority to commit 389

interest may be given in case of 455

exeinplarv damages may be given in case of.. 455

limitation of action for 485

arrest in civil action for 503

as to birth of child 722

in putting up goods sold by weight 755

to affect market price 757

in removing property 780

FRAUDULENT instrument, when void against

purchasers, etc 310

when not 310

when void against oreditors, etc 466

when can be avoided by creditor 466

intent a question of fact 466

concealment when, avoids insurance 407

representation avoids insurance 413

oreach of duty no relief against forfeiture

incurred by 454

dispossession disregarded, when 472

transfers by decedent, exeoutor, etc., may set

aside 643

fitting out or destroying vessel 778

destruction of insured property 778

conveyances 779

removal of property 780

insolvency by corporation 780

issue of documents of title to merchandise 787

FRBtGHTAOE defined 37A

when payable Si6

consignor, when liable for S76

consignee, when liable for 376

not chargeable upon increase of freight. .* 3f76

apportionment of, by contract 3^

by operation of law • 376

according to distance 377

extra, when not allowed 377

lien for 377

ship's manager can not give up 394

how valued on general average * 377

meaning of, in insurance, deiined 413

who has Insurable interest in 413

hypothecation of, by bottomry 437

FRIVOLOUS pleading, judgment on 519

FUGITIVES from justice 878

may be confined in county jail 889

FUNERAL, disturbance of .. 742

GAMBLING on Sunday 700

near religious meenngs 701

apparatus, punishment for keeping 746

public nuisance 746

exacting payment of winnings at 746

witness^privlUge restricted 746

houses, tables, ete 746

apparatus to be seised and destroyed 746, 747

certain officers must prosecute 747

enticing into houses for 747

on vessels, masters must prevent 747

GAME, right of taking, may oe held as easement 238

protection of IW

Gas, tar, throwing Into streams, etc 7S£i

fraudulent consumption of 773

injuring pipes fOr 798

GIFT defined 304

how to be made 304

ordinary, not revocable 304

in view of death, defined 904

when gift presumed to be 304

may be revoked 304

when deemed revoked aoi

effi»ot of will upon 304

to be treated as a legacy, when aoi

certain worda in a will, when words of 317

effect of words of, in a will sit

deemed an ad^mptiotl of legooy, when 319

GIFT ENTERPRISE. Bee LMVery.

GOOD \VILL of business, defined 295

is property 295

seller of, may agree not to do busine» in county 314

implied warranty on s&le of S5i

partner may not dispose of 397

GOVERNOR appolnU certain officers

10, 13, 22, 23, 178. 32

what officers resign to 49, 93. 94

whaM vacancies filled by. . .'. 22, 98» 94, aO

is member of board of equalization 106

commandeivin^kiaf of militia 1S7

appoints certain officers of 137. 141

when may order oat same 138

power as to pardons, reprieves, etc 873

fugitives from justice . . • 818

may contract for keeping convicts 890

for care of insane is&

duty in organization of n«w counties CI

in suppression of riots 810

GRANDCHILDREN, right of, to letters of admin-
istration 615

GRAND JURY, summoning, etc., of S25, 28, SI

of bow many jurors to consist . 29. 8S4

duty, as to intoxicating liouors 160

kocusation by, to remove (wlcer 812

defined 824

who may challenge 825

challenges to, orsut or in writing 825

when must be taken

tried by the court

to panel, causes for

effect of oilowanoe of 825

to individual juror, causes for 825

effect of allowance of ^835

when court may order another 826

foreman of, appointed by court 836

may administer oaths 827

oath of. aas

charge of court to 826

clerk of saS"

powers and duties of 827

what evidence to receive 827

should indict, when

member of. knowing of crime

rfn,

Index.

919

Paov.
GRAND JURY— Owitinuad.

special subjects of iDqulry by 828

may ask advice of court or distriet attorney . . . 828

sessions of, to be secret 828, 836

member of, not to be questioned for vote, etc. . 828

(lismiMsal of charf^ by 830

re-submistiion of case to, when.. ..860, 830, 887, 838

must be discharfired. when 827

final adjournment of court discharges 827

coQnt>- jails, duty in relation to 883, 889

act conceniing, to be given in charge of . . . 888
Sec Jur' m.

GRANT defined 300

takes efTect from delivery 3U0

when presumed d£livered 300

delivery of. in escrow 300

not to g^ntee 300

when constructively deilyexed 300

interpretation of 1 300

of limitation In 300

by aid of recitaLs 300

aeainst grantor 300

of repugnant elausea in. . ; 301

of "heirs," "issue." etc., in 301

words of inheritance, etc., not necessary la. . . 301

of power, how made 246

of life estate, passes power of owner to make

leases 248

of corporate power subject to repeal 253

must be accepted 254

necessary incidents Implied in 472

of refU property how executed ... ... ...4 ..... 301

form of ..302

' by married woman 302

by attorney in fact 302

what easements pass by 302

what covenants impUed in. < MB

against whom conclusive '. 802

purporting to pass greater estate than gran-
tor had 302

when passes title to highway 303

valid without attornment of tenant ...^... 303

when presumed to pass fee 303

on condition, when estate passes 303

effect on. after acquired tiUe , 303

may be recorded '. .. 305

against whom void, unless recorded. 309

intended to defraud purchasers, etc., void. 310

adversely possessed, void 719, 311

re-delivery of, does not revest title 300

Intended as a mortgage, must be so recorded

432, 433

See Record nf IngLrum^nts, Tranffer.

GRANT COUNTY boundaries changed. 194

GUARANTY defined 421

knowledge of principal not necessary to 421

how created ..-. 422

consideration, when necessary to 422

need not be expressed in 422

must be in writing 422

when promise to answer for anocber not

deemed 422

when acceptance necessary to validity of . . . .422

interpretation of 422

o! incomplete contract 422

that obligation is Kood or collectable 422

that obligation is good, omis.<}ion U> sue 423

when broken by principal leaving territory 423

when deemed unconditional 423

may be eniforced without demand or notice,

when 423

of conditional obligation, efTect of 423

continuing, definecT. 423

may be revoked, when 423

letter of credit, when deemed 426

party to, liability of, not greater than princi-
pal's 423

where principal contract void 428

not restored by rescission of agreement ex-
onerating 424

reduced by partial satisfaction of principal

obligation 424

exonerated by certain dealings with prin-
cipal 428

not exonerated by void promise, etc 424

by mere delay 424

by release of principal, when 4*21

by legal discbarge of principal 424

See Letter (if CredfL Surely.

G UARDIA N and ward, relations of 224

. definition of 224

-224

general, what

special, what '^i

Paos.
GUARDIAN— Continued.

how and by whom appointed 663, 224

of property of non-resident, may be appointed

663,224

who has control over 224

rules for appointment of 663, 22.>

powers of, when appointed by court 66:i, 225

when not 664, 224

of the person, duties of 225

of property, duties of 664, 225

relation of, confidential 225

may be controlled by court 22-"»

power of joint, continues to survivor 225

lor what causes, may be removed ■22."i

power of. how superseded 663. 226

settlement of accounts of 226

when entitled to discharge 226

may defend ward by force 211

may consent to apprenticeship of ward, when 227
necessary to legal proceedings by minor. . .675, 209

ad litem for Infants 675, 488

must give security 489

not liable for costs 489

when is 548

in partition, powets of 577

waste by 586

of minors 663

of insane or incompetent persons 663

powers and duties of 666

Jurisdiction of probate court over 605

of non-residents 669

removal of 671

See Letters of OuardiansMp.

GUIDE POST, malicious injury to 788

GUNPOWD£R, making or keeping unlawfully. . . . ?27

keeping or carrying 7S2

HABEAS (JORPrs. proceedings on flea

HABITUAL lNTE>iPJ!«ANCl defined 216

is a cause for divorce 215

HAMUN COUNTY defined 194

HAY. putting up, without marking 755

HEIRS, the word, not necessary to pass a fee. .301, 317

death without, meaning of 301

property passes to, by succession 321

may contest will 609

actions by, pending administration 624

when enntled to possession 624

HERD LAW 600

HIGHWAYS, record of .^5

on section lines, established 125

width of 125

power of county board in relation to ^36, 125

location, vacation and change of. 125, 190

running through more than one county 125, 128

but one county 128, 129

on section and quarter-section lines 130

of private road .' 131

over public lands, when 181

settlers have rights of freeholders 131

benefits considered in awarding damages.. 131

viewers, etc., who competent as 131

compensation of 131

on line between individuals 131

appeal from decision ol board in 130

width of 130

on county, etc., line, how repaired . 130

through enclosure, opening of 130

effect of six years* non-use of 130

twenty years' use of 131

timber and nedge along 132

Sublic bridges, part of 132
uties of persons using 132

poll tax for. who subject to 136

taxes for, how may be paid 136

obstruction of 136, 788

malicious injury to 788

racing upon 757

Sec Road Dtatrtet, Road Superviaor.

HIRING in general, defined 361

hirer entitled to product of thing during 361

covenant for quiet no28es8ion implied in 361

obligations of parties to 361

when letter may terminate 361

when hirer may terminate 361

terminates, when 862

by death, etc., of party, when S62

apportionment of hire of 365

OK Kral Property, rights and obligations of

parties to , 3ii2

term of, when no limit fixed 362

when presumed to be renewed ;i62

notice, when necessary to terminate 237, ;^6.'{

terms, etc.. of, may be changed by notice, when 241

920

Ikdsz.

Paox.
HIRING— Continued.

rent under, when payable 368

in parts of rooms forbidden 368

See LcmdUtrd, Tenant*

term of, restricted 283

Op Personal Property, rights and obligations

of parties to 368

HOLIDAYS, whatare 474

acts appointed to be done on, may be done
when 474

HOMESTEAD of family, exemption of... 584, 627, 162

of widow or widower, deemed family 162

convevance, etc., of, when invalid 162

liable 'for taxes and mechanic's liens 162

for purchase debt. 162

must embrace house used as home 162

when may embrace one or more tracts \d2

extent of 162

selection, marking and recording of 627, 168

how changed 163

new, exempt same as old 168

disagreements as to extent of, how decided ... 168
survivor of family coiitinues to occupy — 626, 168

when descends free of debt 163

devise of 164

family further defined 164

disposition of, on divorce 219

HOMICIDE, definition of 725

different kinds of 725

what proof required 726

domestic or confidential relation in 725

excusable, defined 728

Justifiable, defined 728

See Murder, Manstaughter*

HORSE RACING. See Ractna.

HOUSE OF ILIi-FAME. See Bawdy BoiiM.

HOUSEBREAKING. See Burglary.

HOTEL KEEPER. See Innkeeper.

HUSBAND is head of the familv 210

must support himself and wife 219

liable for necessaries furnished wife 220

not liable for debts of wife abandoning him . 220

not bound to maintain wife's children 223

abduction of. forbidden 211

consent of, not necessary to wife's exeentive

power 246

succession to wife's property 321

not liable for debts oz wife befbre marriage. . . 220
has no estate by courtesy in wife's property. . . . 320
right to administer estate of deceased wife 615, 017

to occupy homestead 626

allotment to, from wife's estate 626, 628

kllUngof, by wife 725

HUSBAND AND WIFE, rights and duties of. . .216, 219

have no interest in each other's property 219

may enter into contract with eacli other 219

cannot alter their relations 220

may agree to separate 220

may hold property together 220

not answerable for each other's acts 220

duress of either, avoids contract of the other,

when 336

menace of Injury to either avoids other's con-
tract, when 386

cannot be witness for or against each other. . . 556

HYPOTHECATION. See lAen^ Martgage^ Pledge,
Bottomry, Respondentia.

ICE, cutting, must be guarded 756, 757

IDIOT. See Persons '»/ Unsound Mtnd.

IGNORANCE, of fact. See MUtake.

of law does not excuse crime 607

IMPRISONMENT, on civil process, genera] provis-
ions 596, 507

discharge from, proceedings for 596

on criminalcharffe, elfect on limitation 487, 485

on conviction before Justice 692

Illegal 729

second term, commences, when 799

for life 799

effect of, upon marriage, after pardon 2US

of Juvenile offenders 889, 799

fine may be added to 799

In territorial prison, suspends dvil rights 799

for life, is civil death 799

relief of poor convict from 888

See Punishment.

INCEST, punishment of 739

local jurisdiction of 815

INCORPORATION OF TOWNS AND CITIES,

site to be surveyed and platted , . . . 71

census to be taken 71

application for 71

duty of county board 71, 72

INCORPORATION-amtintied.

auestioii submitted toYOte 72

final order 72

election of oilloers... 72. 7S

vacancies, how filled 73

officers, how qualify 78, 76

president and trustees, a body corporate 74

powers of board of trustees. 74. 75

jurisdiction ovet public grounds 75

auditing and pavment of accounts 76

corporate Indebtedness 76

officers to deliver books, etc., to successor. ... 76

levy and collection of taxes 76, 77

duties of treasurer 77

of board of trustees 78

of clerk 78

Sowers of marshal 78
utles of fire wardens 0 78

compensation of officers 78

sidewalks and streets 78

extension of corporate limits 79

dissolution of corporation 79

certain rights not affected by 80

when town must show compliance with la'vr. . . 80
present corporations may a^lopt act 80

UablUties not affected by 80

violation of ordinances 80

ordinances, bow proved .. . 80

spedaltaxes alien 81

how collected 81

proceedings in Justice's court of 81, 8S

INDECENT exposure of person 742

exhibittons, etc 742

pictures, books, etc 742

indictment 8S3

articles to be seised 742

tobedestroyed 743

INDEFINITE pleading, how corrected 500

INDEMNITY defined

for future wrongful act.

for past wrongful act, valid 420

extends to act of agent as well as principal 430

to several, applies to each 4S0

creates Joint liability with person indemnified 430

Interpretation of 420

when person giving has rii^t of surety 421

in legal proceedings, called ball 421

by wnat rules governed 421

carrier may require, when 378

Insurance a contract of 404, 406

guarantor Indemnified, liable to extent of 424

party paying negotiable Instrument, when en-
titled to 445

INDIAN LANDS, restraints upon alienation of. ,

INDIANS, rights and duties of

cannot hold office

lands of, not alienable

marriages between 212

sale of Intoxicating liquor to 798

harboring 796

INDICTMENT defined.

crimes must be prosecuted by, when. 805. 824

when deemed found 816

grand Jury should find, when 828

twelve Jurors must concur in flndf&g 825, ^0

Indorsement, presentment and filing ol . . .836, 830

witnesses' names must be added to 836, 830

is first pleading on part of territory 831

what must contain 831

must be direct and certain as to what ^l

must charge but one offense 831

need not state precise time of offense 831

certain errors in, not material 831

words in. how construed 831

need not pursue exact words of statute 831

is sufficient, when 831

formal defects, etc., in, disregarded 832

what matters need not be stated in 832

for libel 832

for fomry 832

for perjury, etc 882

for larceny, 6tc., of money 832

for conspiracy 848

for arson 76S

as to obscene books, etc 838

against aooessory before the fact 883

may be found, when 833

for compounding crime, may be found, when. 83S

against several defendants % 888

arraignment of defendanton 8M, 896

See Arraignment

modes of answering 836

motion to set aside, causes for 836

^

Indkx.

921

PA«a.
INDICTMENT— 0)ntlmi«d.

must be made, when 836

objections waived by not making 836

when heard 836

proceeding on denying 836

on granting 836, 837

order to set aside, no bar 837

demurrer to. see Demurrer.

trial of, suspended when 849

conviction for what offenses, under 854

See Pteadinge^ Trials Arrest of Judffm«'nt.
re-application to stay trial of, without leave. . . 720

disclosure of finding of 728

INDORSEE. See NeootiabU Inttrument.
INDORSEMENT. See NegntiabU Ingtrumeni.
INDORSER. See NeQOtiable Ingtrument.
INFANT. See Chiid, Minor, Taxtml arid CMdy

Ovardiaru Ward^ AppreniieetMp.
INFORMATION in nature of quo warranto, action

in place of 568

for security of the peace 808

of crime, defined 816

warrant of arrest upon 816

INJUNCTION, preventive relief by 464

grovisional, how regulated 464
nal, may be granted, when 464

cannot be granted, when 464

writ of. as provisional remedy, abolished 509

provisional, by whom granted 509

In what cases 509

at what time 510

upon what evidence 510

wnen allowed, only on notice 510

security upon 510

damages caused by, how ascertained 510

application to vacate 510

court always open for hearing of 481

effect of, on time of limitation 487

to prevent waste, after execution sale 540

on mortg^ed real property 583

writ of. for affirmative relief, in case of min^ 145

IN J URIOUS ACTS not expressly forbidden 796

INJURY, right of protection from 210

right to use force to defend from 807, 783, 211

threat of, see Menace.

contract for exemption from liability for. void 843

obligation to abstain from 346

to personal property, damages for 458, 459

to animals, dami^es for — 459

to timber, damases for 450

to the person, joinder of action for 501

arrest for 508

limitation of action 485

INNKEEPER, liability of 356

how exempted from liability by notice, etc., . .. SS9

lien of 440, 356

how enforced 689, 856

INQUEST. See Coroner.

INQUISITION into insanity of defendant 869, 861

as to pregnancy of femaie under death sentence

862

INSANE, the Governor contracts for care of 152

asylum for 158

expense territorial charge 158

verification of accounts 158

proceeding to confine insane person 153

INSANE PERSONS. See Perwm of Uimmnd

Mind.
INSANITY, investigation of, by probate judge. ... 158

proposal of contract, revoked by 338

a defense to criminal prosecution 869, 697

of defendant, inauiry into. 869, 861, 859

as a defense, verdict in case of 855

INSOLVENCY defined 467, 440

fraudulent, of corporation 783, 780

by individuals 779

INSOLVENT defined 467

fraud in applying for discharge of 780

preferential assignment by 467, 780

See Aesignment, Dwtor.

INSPECTION of writing 682, 554

INSURANCE, in general 404

defined 405

what may be insured against 405

usual kinds of 405

parties to, defined 406

who may be 406

by mortgagor in favor of mortgagee, effect of .. 405

insurable interest in, defined 405

may consist in what 405

carrier or depositary has 406

. mere contingency or expectancy is not 406

meaaureof 406

PA«a.
INSURANCE— OmMmiMk

essential to validity of insurance 406

must exist at whAt time 406

effect of transfer of 406

after loss 406

in one of several things 406

between joint owners, etc 406

effect of chanee of, by death 406

concealment in, defined 406

ground for rescission 406

what must be communicated in 406

what need not bo communicated in 407

wl^at is deemed material in 407

what parties to, are bound to know 107

right to information in, how waived 407

what information not necessary to 407

fraudulent concealment of facts concerning

warranty avoids 407

representation in, oral or written 407

when made 407

how interpreted 407

when deemed a promise 407

how may effect policy 407

may be withdrawn when 407

refers to what time 407

upon information, etc 408

wnen deemed false 406

false, Kround for rescission 408

materiality of, how determined. 406

modification of, rules governing 408

right to rescind, may be exercised, when 406

policy of, defined 408

must specify What 408

whose interest covered by 408

in favor of agent, etc., how expressed 408

of partner, etc., how expressed 408

general description in, to whom applicable 406
maybe framea for benefit of successive

owners 400

not transferred by transfer of thing in-
sured 409

open, defined 409

valued, defined 409

running, defined 409

effect of, receipt in 409

agreement not to transfer claim under,

void 409

executed by way of wagering, void 406

warranty in, defined. 409

express must be contained, in what, 409

defined 409

may relate to past, present or future 409

as to future, deffned 4O9

performance of, when excused 409

breach of material, ground for rescission. . 409

of immaterial, wnen avoids 410

without fraud, effect of 410

premium of, when earned 410

return of, when due 41©

when not due 4io

in case of over-insurance. 410

contribution to 4lo

perils, what covered by 4lo

loss incurred by rescue from, covered by . 41i

excepted from 4H

caused by fraud, when not covered by. 411

notice of loss' under, must be given 411

defects or delay in, how waived. . . 411

proof of loss under, what must be eiven 411

defects or delay in, how waivea 411

peculiar, when excused 411

fraudulent 778

double, defined 411

liability of insurers under 411

re-insurance, defined 412

what must be communicated on 412

presumed to be against liability 412

original Insured, nas no interest in 412-

special partnership may not engage in busi-
ness of 401

fraudulent destruction of, subject of 778

Marine, defined 412

insurable interest under. 412

owner of ship has 418, 412

freightage, when 413

under charter party, when begins 413

in profits 413

of charterer of ship 415

what must be communicated in 413

what information is material in ? 413

other person insured by, presumed to have in-
formation 413

effect of certain concealments upon 41^

922

Ikdsz.

Pass.
IN8URANC£--09ntiitMed.

representation willfully false, avoids 413

eventually false, does not avoid 414

warranty of seaworthiness implied in 414

when complied with 414

to what extends 414

as to different parts of voyage 414

delay in repainuK, breach oi 414

of neutrality, eflfect of 414

voyage covered by. how determined 415

deviation from, defined 415

when proper 415

wlien improper 415

effectof 415

loKs under, total or partial 415

actual or constructive 415

actual total, defined 415

constructive total, defined 415

actual, when presumed 415

abandonment unnecessary, upon actual

total ; 416

of profits, when presumed 418

covers expenses of re-shipment in certain

crises 416

free of average, effect of 416

against total loss only, effect of 416

abandonment under, defined 416

may be made, in what cases 416

at what time 416

how 417

must be absolute and total 416

when defeated '. 416

notice of, oral or written 417

what must contain 417

sustained o^ly on ground specified in

notice i 417

effectof 417

insurer paying total loss entitled to 417

agents of insured act for insurer after — 417

acceptance of, not necessary 417

not presumed from silence 417

conclusive 417

made and accepted, irrevocable 417

to whom freightage belongs after 417

liability of insurer refusing to accept 417

not necessary to recover actual lost 417

total loes 416

terminates authority of master for ship-

owner 394

measure of Indemnltv under ; 417

valuation in policy of, when conclusive 417

when applicable to partial loss 418

apportioned 418

of profits 418

measure of indemnity under open policy of . . 418

in case of damage 418

where expenses are incurred 418

for general average 418

where insured entitled to contribution ... 418

in case of partial loss of ship, etc.* 419

Fire, effect of alteration in thing, upon 419

how affected by acts of iosared. 419

measure of indemnity under. % 419

Life and Health, when may be payable 419

who may be insured by 419

may be transferred, etc., to person without 1d«

•terest 420

notice of transfer of. not necessary 420

measure of indemnity under 420

does not pass to assignee for creditors 469

See Inmirance Otrp^^rniinn8.
IN8UR.\NCE CORPOR.\TIONS, statements to be

filed by 280

penalty for not filing 281

when may hold real estate 281

foreign, additional statements by; 281, 282

to appoint resident agent 282

agents certificate 281, 282

agent of. defined 283

only one statement required 288

mutual 283

agent's certificate to be filed, etc 283

taxation of 102

See Corporationg, Irwurance.
INTEREST in property. See PropeHy.

of money, aeflned 360

loan presumed to be on 360

presumed to be at annual rate 360

rate of. when not specified 360

highest allowen 360

upon judgments 360

upon contract after breach 360

may be deducted from loan, when 360

Pask.
INTEREST— Oemtinued.

unlawful, may be recovered back 360

applications of payments to .^30

stopped by offer of payment, when .ts*2

may be required of trustee, when 3M, ;i8fi

special rate of, allowed on bottomry 4:17

by way of damages, who entitled to 4.S5

when in discretion of jury 4.>>

how waived 4.'vi

compound, defined iTTy

when added to costs of action .M7

party in, action to be in name of 48K

when Joined 483

with territory as plaintiff .769

does not exclude witness :>Vi

party in, mav petition probate of will 607

may contest will 611', 612

may object to granting letters 61.S

may appeal from probate courL (&d

See Ova Action, Parties.

INTERPLEADER, when ordered 491

INTERPRETATION of granto 309

of wills 316

of obligations 336

of contracts 341

to follow intent of parties 316. 341

in whose favor to be made 800, 342

of doubtful words and phrases 300» 317, 342

of repugnances 301, 316, 342

to be upon the whole instrument 316, 341

all of several related instruments 316, 341

to be reasonable. . . .341, 342, 473

to support rather than avoid instrument

to be in ordinary sense of words

831, 477.317,342,473

to be governed by surrounding circumstances

316. 318b M2

of technical words 477, 317, 342

of guaranty 422

of negotiable instruments 442

of indemnity > 420

of suretyship... 425

maxims of 472. 473

of words defined in a statute 831, 477, 473

of words, as to gender, number, etc... 880, 801. 475

of the civil code 475

of authority to three or more ofllcers or persons 476

of the code of civil procedure 478, 477

of pleadings in civil causes 500

of indictment 831

of penal code 696

of code of criminal procedure 881

INTERPRETERS 563

feesof 1T2

INTERVENTION defined 491

who has right of 491

how made 491

INTIMIDATION of voter 704

of member of legislature 709

of ofllcer, Juror, etc 718

of employers or laborers 79t

INTOXICATING LIQUOR, sale of, unUwful with-
out license, etc 157

county board grants license for 157

charge for. requirements of bond 157

to habitual drunkard, how prevented 156

penalty for 793» 158

when county board to revoke license for 158

same does not discharge bond 158

town or cilT authority to license 158

license by both county and city 159

care of intoxicated person 159

selling, defined IS9

penalty for violations 159

exemptions limited 159

license bond, how construed 150

what officers to make complaints 159

list of licenses for grand Jury 160

duty of grand Jury I6O

illegally granting license for 798

to Indians, minors, paupers, etc 158» 798

on Sunday or election Ofliy 706, 793, 794

in court house, Jail, etc 886, 886, 721

INTOXICATION of driver of coach 182

crime committed during 697

no defense in case of murder 726

of physician 727

of railroad engineer, conductor, or driver 7.%

in public 798

INTRUSION into ofllce, action for 568

IRRELEVANT answers or defenses may be struck

out 498

^

5» ^-5

an

:m*e<;ic

1SUINT»S a^^lT
ISSrE, f-irri<-i. *^

defiiit'i

of U*

of f*-i ---

onier •' : ••' -tl-»r*iftr
note ••f . . ^ - - -

to r*- Tn<»i -7 ;Tri

S€* Trio'.
JAILS S-^ r«.w^*i, JoA
JETTIS^iX .i^f--J .. .

in vhftZ ori^T je*t b«

by whom cay "S? *r.*5e

of fATT*' z<. dt^i
See ^rrri^.

JOINDER o« t*rbe*

of c«n«e* 'jf •/:— 3C.

of deftr-ses

of forc-'-".* eciTT «v_ «-sdj ccfaer
See Parfww. FV<»ir^4i.

JOINT. owTier*b:p r:ay s*-.

inte-refC. d?:±£(«e<d

obli«^&:r<yn SCAT Ke. .

^ ' - be - -
<s »r.rntr:;;^wfi &c<v€«& panic* u>
ligb: ftiftT be
■ad «eTcWu. c-cliemSo« »•▼

defendAsi*. ^'
debum. fo^'ye

See /VirtUK'ii.
JUIKJE. See yaf**- '^
JUDGMENT I3C crrn Ca.*!: defaocd..

whAt mAT be i*a«^Tatined by

vhAt »Ljui «{«e«ii7

entry of

court iblv«,v« ^.^f^eo for.

roll, CODMBl* o<

doc-ke;!:.^ of

of ju^i;'-^

lien of 38,

"Mrcured oc apfKAl"

mseiznicesc of

di5cha^<r of

««l-off erf Hj-jriii

howenl.^n*-i 5»

See £jr«niti'>ii.

action af^>Q -•^

manri<erof plf-vl^s^ «fi2.

revi v*u of — -j^-

throurb naUtate etr.. leLeffrom t»>«.

mode« of revie wiris:. •>#.

efSeci of revtrraAl oi, oo execution sale 46o.

c«:Mif«r**k>n of 6*1

oifer of ^^

on failure toansvcr *?7.

to reply

on serrvi-e by pjjblif-aiion

on fnvoloa* deuiuirer, answer or reply

on special venii* t

on decision of court

on i*siic oi law

in cape Mibmttxed witboct aelkin

of death after Terd:*^ CSL. a2S,

for part of cluixn adir.m^

for exce#.« of admiu^d d<rmand crer csounter-
claim

of eonnter-elaini orer plalnriflTg demand. .

in foreclr*nre of zaongvs^ •t''!.

In ref/.evln toi.

In action to enjoin tax. etc

for n«nirpini|: €>tlke€

for nuisance

for wa.«te

to for*^'^Wfe chattel lien

in partition 571.

a«:ainst wbom conciiuire

in certiorari

in baatarrly proceedingr

in case of counier-clalm ffM* imprr^Tementa —

where plaintiflT^ tit> ceaaea pendinx salt

for sale of real property

again«t married wox£*a.o

coantiet

township

surety *25,

4^2

-'4

= "»

5*-**r.*iaa!S* v*rt>r -e

agairVc «xe«"=,*-c e^r. e4c«.^ y

«rf >rj<*3e >-.:in

f:c*:rC-r rrrrr *^c

5n

oc ;x.j: tsslL. t erii-t

<c <c«e^.al rerd*. •

:rf

in i2feea^ts^zr«- oc ie^eadari wfc
aersnsj: defg^ -Var.! s tvvwsot icr
whaz sjky &e ik^ow~a xc <az.;
ppcocosceii if ^c oa^M

fee.

ipLi*:^ xz>e .>r-r oc

sn

ocS
529
obC
4^1
59S
ccS

^a?

540
&30
5X1
5G6

4^
oOj

4»j

5<f2

>>;

•Ml
5&5
554
519
4S«
oIi>
519
524

5»b

5r3

517

51«
535
>1
5-^5
119
569
5h6
5^3
-'«9
572
573
5£r*

5^5
5k4

529

63
Ml

of cccTi^tioc ::7»>a w^i eaz be
S<* JLvuKiL Wri: -^ JE^rxw.
at:*;- lAl ^ ISTEiCT^ V-ca

JTi: ULLSALE- 5
JVRI^IIZTION of cOQ2ts

erf ruicitsre cvxirt ._

of Ciscrjiet ecurs .'

of fc^tase cxxirt

Oif ;:i«oir«e « cooit

o< a(n:x<c. when d«eaied acM^zlred

wad otl fro&nd oi dra

of lerrixory over crioes
of puLlic offe:
dcEc^nr
;:iry discharced fvir

of wiixof

;^e Som€ a' cock 1 «i«rl
JURORfr. who •: >E:pe*e2: as

who act o:^:peaeM to

dnwU^oi

fnmmcnms of

failure oL xb appear, a coatc9i|K

feesof

in civil actkeks. ebaEoicei to*. .

how tried

o*ih to

in criminal aruo«& panei o^

SeeChoiZc

bribery of

nii5o:»nd!:c< by

in:pr»>per aitespt to inf ■:»i>ce . . .

ir.i-.rr.: iaii. -i: :••

fraud -ilrnily drawinr

dsoonduci* oi officer in rhiaree of

%1X

2«L

grand, ar lizif after ThilieiL^

iwed.

disclo«'.ir<» of eridrsKe, eu*-. by

of iz: iictraent by '

GraxkA Jury, lYial Jury.
JURY. See Gmud Jwry. Ti-^Jmrm.

JLsTinCATK»N of slander

of bail

of sureties \Si. M \

JUSTICE uF THE PEACE may admin ii^er <iath5

when elected M.

when may act a« con>ner

of township, acli- -n oc bosd of S\

when di«<qual;ned

fees of 5dL

in esiray?

may bo re-uired in adran*^

powers an4 d ;n« a^ lo es4ray?.

as to ren:oraI of pa':per."

office of. whf re :o be kt'j>t

power to punish c* r.terr.pt*.

docket of. and entne< therein

is nrima facie evideutv

inaex u>

most deliver papers. cj*\. to suf^^assor

powers as to itsiie of pn^ress

3»

ri
ia

sa

7»
7U

ni

71*
711

ni

721

process mus; be is*\ied I y. withi^ut blank.

moneys receive^! and }*A:»i by

in case of disabtlstv. aii*.^hef may act. . .

must require <ei unty uv c\t8«ts. . T

may issue sub^Mena. '

take deposition

take ae knowledsmeau etc.

.'a
>i

11>

ir:

IM

i«t
<;-:;

6S^
(^
««

65<>

«W9
«»?
6!!«^

5»
306

9^4

lin>B2.

Pawb.

JU8TICB O^ THE PBACB^-OontiiUMd.

tm magiftrate, powers and duties of 807, 689

in case of security of peace ; 689

may issue subpoenas 692

punish contempts 692

quarter^ report of 694

must pay over fines, etc 692, 694

buying demand for suit 719

is a magistrate 816

See Justice's Court, MagiabraU.

JUSTICE'S CODE 673,694

titleof 900

JUSTICE'S COURT, where held 673

always open 683

jurlscliction civil 601, 200,481, 67,

criminal 807, 67*

no evidence of title or boundary allowed In. . . 67^

answer of title in, effect ot 67^

actions in, where commenced 674

how commenced 675

appearance of parties in, manner of 675

time for 676

summons in, requisites of 675

when returnable 676

service of 676

. pleadings in 676

amendment of 677

attachment in 677

claim and delivery in 678

forcible entry and detainer 678

trial, civil 681

place of -k 674

change of 674

timeof 680

postponement of 680

by court, when 681

by jury, when 681

waiiver of 681

judgment in, by default 679

relief from, when 677

upon confession 682

of dismissal 682

on verdict 682

on trial Uy court 683

to recover personal propertv 683

where claim ezceeas jurisaiction of 683

offer of 683

costs included in 688

transcriptof 686, 562,581, 683

executions, when issued 688

requisites of 683

for money 683

for personal property 684

in forcible entry, etc 684

removal of 684

sales under 684

contempts in 684

appeals from, in civil cases : 686

costs in 1 689

civil procedure, how far applicable to 6^

foreclosure of liens in 590

actions under herd law, in 601

Criminal Proceedings in 689

complaint in 690

warrant of arrest 690

service of 690

docket of 690

plea of defendant 690

holding defendant to answer 690

trial, defendant's presence at 691

change of place of 690

postponement of 690

by court, when 690

by jury, when 691

court decides law on 691

judgment — 602

on plea of guilty 690

on conviction 692, 691

warrant for execution of 692

appeal from 692

bail by defendant 698, 692

discharge of defendant 692

criminal procedure, how far applicable to 689

See JugtiM of the Peace, MctguCrate, Appeal.
JUSTIFIABLE HOMICIDE. See Bomidde.

KIDNAPPING of person out of territory 696

defined 729

punishment of 729

place of trial 814

efi'ect of injured party's consent 729

selling services 01 persons of color 730

removing persons held to service elsewhere. . 730

judicial officers aiding in 780

See Child SteoMng.

PAffB.

LAND, definition of 2»

See BeaL Property.

buying or selling pretended title to 719

buying, under suit 719

under adverse possession, may be mortgaged

forcible enlry and detainer of 678* 799

unlawful re-entry upon ^9

intrusion or squatting upon 799

LANDLORD must repair, when 362

tenant may repair at expense of , when 382

acceptance of rent by, renews lease, when . . . SK
tenant must inform, of adverse proceedings . . SSS

may not let room In parts 383

relation of, at will, how terminated 237

when may re-enter 288

when may sue for possession 238

may change terms of lease by notice, when. . . 211

possession of tenant deemed that of 481

may be loined with tenant as defendant 489

Bee Hiring.

LARCENY, definitions of 772

granddefined 772

Funishmentof 772
defined 772

punishment of 772

determining value of article. 773, 772

of securities not issued 773

severing thing from realty 773

taking wrecked goods t 773

committed out of territory 696, 773

local jurisdiction of 815

of money, etc.. indictment for. . » 832

LAW, definition of.....* m

of nations, part of common law 207

domestic or municipal 207

mistake of, defined 337

personal property governed by what. 250

real property governed by what SSS

interpretation of wiU governed by what. .... 321

0! contract governed bv what 342

earri«r not liable foractof. ,

proof of foreign

(gnorance of. does not excuse crime

in criminal.case, decided by court 847

LAWRENCE COUNTY defined 192

organisation provided for 193

LAWS. See Statutes.

LEASE, limited induration 281

See Hiring^ Real Property.

LEGACY, various kinds of S19

specific 319

demonstrative 819

residuaiy 319

general S19

property, how applied to payment of. 319

now resorted to lor payment of debts. .640, 639, 819
to kindred, etc., chargeable only after others.. 320

abatement in 820

specific, title passes by 330

possession of, how obtained 390

for life, inventory to be given of. 320

of income, when^accrues. 330

may be satisfied 830

whendue 830

interest on 320

advancement, etc., when deemed ademption
of 319

LEGATEE for life must make Inventory, etc 320

liability for testator's debU 321, 639, 640

mav petition probate of will 607

contest will 609

citation to, on contest after probate 611

LEGISLATIVE ASSEMBLY cannot interfere with

primarv disposition of soil 290

See JuMidalure.

LEGISLATIVE ELECTIONS, contests of 190

LEGISLATURE, election of members, term of office 1

sessions of, when and where 1

privileges of members and officers 2

may punish certain contempts 2

contempt a mtedemeanor 2

members' oath, by whom administered 2

form of 2

oaths administered by committee 2

each house judge of its members 2

officers of each nouse 2

how and when chosen 3

duties of chief clerks 3

to make roll of members 3

to call sessions to order 3

oompensation of officers 4

removal of officers, filling .vacancies. 4

Index.

925

PAflS.

LE6ISLATTTft£-6>fitifiiie(f.

resiffnationa, to whom made 49

before qualifying 93

▼acancies, how fiUea 93

daring session 94

apportionment of members 202

preyenting meeting of. 708

disturbance of 709

compelling adjournment of 709

preventing member of, from voting 709

compelling or preventing official act by 709

altering draft of biU 709

altering engrossed copy of bill 709

bribery of member 709

member receiving bribe, etc 709

forfeiture of office by member 710

refusal of witness to attend or testify 710

LETTER OF CREDIT defined 426

may be addressed to whom 426

writerof, liable to whom # 426

without notice, when 426

onlv for credit duly given 426

general, defined 426

any person may give credit under 426

several persons may give credit under 426

special, denned 426

when deemed continuing guaranty 426

credit given must agree with terms of 426

See (hMranty^ Surety.

LETTERS, ownership of private 296

■ending threatening 776

opening or publishing sealed 792

sending, when complete 797

Testaxentary 613

lurisdiction to grant or revoke 606

in what county must be granted 607

when and to whom issued 613

form of 614

record of 617

revocation of 620, 619

on foreign will 610

on lost or destroyed will 612

appeal does not stay granting, etc. of 660, 661

Of Adminictration 615

jurisdiction to grant or revoke 605

In what county must be granted 607

form of 615

order in which parties are entitled to 615

petition and contest for 616

action thereon 616

revocatlonof 621,620,619,617

record of 617

to special administrator 620

Of Administration with Will Annexed 613

when granted 614

form of 614

on foreign will 610

on lost or destroyed will 612

Of Guardianship 664

See Executor^ Admini$trator^ Ouardian.

LIABILITY, indemnitv against, effect of 490

created by statute, limitation of action on 486

LIBEL, definition of MO

See PrMUaed PublieatUmM.

action for limiutlonof 486

pleading in 600

costs in 646

criminal, deilned 784

is a misdemeanor 784

frablication of, defined 786
lability of editors, etc 786

miUlce presumed 785

its truth may be proved 786

threatening to publish 785

indictment for 882

Janr decides law and fact in 847

LIBRABT, TERRITORIAL, statntea fbr 6

seeretarv haa custody of 16

appropriation for 15

certain expenses for, territorial charge 15

LICENSE, peddlers*, territorial 119

county 160

auctioneers* 160

for sale of intozleating llqaora 167, 169

granting illesally 798

offerrlea, BeePlerriat.

LlElf defined 487

aceesaory to some obligation 489

general defined 497

special defined 427

what contracts subject to law of 497

how created 498

by operation of law ariaea, when

«1

PA«a.
LIEK— Contfmied.

may be created upon property not acquired 488

to secure future ooligation. . 496

effect of. 498

cannot tranafer title 496

doea not Implv any personal obligation 40

confined to original obligation 488

holder of, no compensatTou for trouble 498

rights of, on satisfying prior lien 499, 487

may pledge its subject to extent of lien — 485

priority uf, according to creation 498

mortgage over other 498

of mechanics 668

order of resort in case of. 574, 498

redemption from, who has right of 499

when inferior lienor has right of. 498

bow made 499

cannot be restrained 498

extinguished, how 429

by sale or converalon of subject 499

not by lapae of time 499

not by part performance 499

bv restoration of, anbject to owner 429

foreclosure of, see Foreelimure,

of seller of real property 489

how waived 489

aeainstwhom valid 489

of seller of personal property 489

of buyer of real property 438

for services on personal property 489

of flMtor 489

of banker 489

of shipmaster 489

of mates and seamen 489

of sheriflb and similar ofllcers 688, 489

of innkeepers, etc 440

of attorneys at law 96, 440

for aalvage 37>8

for feeding or pastoring stock 589

in bastardv proceeding 599

under herd law 600

of Jadgment, see JudQment.

of mechanics, upon real property 686, 440

on persooal property 440

See Bottomry, Mortooge^ PUdQt^ Regpondentia,
Stoppoffe in Trayatt.

LIMITATION of action to avoid Ux sale 118

to annul marriage 215

for divorce 818

for damages caused by mlll-dam 604

of civil actions in general 477, 489

must be set up In answer 469

lien not extinguished by 499

in case of disability 487, 486, 484

of absence ftt>m territory 486

of death 487

of war 4^

of Judgment reversed 487

of stay, etc 487

to enforce bank notes, etc 487

against corporations, etc 487

debt Barred by, how revived ^7

of action for claim agalnut decedent 680

to aet asidH sale by executor, etc 641

by guardian 671

against surety on guardian*s bond 671

of criminal actions 816

effect of absence on 816

effect of repeal upon 900

LIQUOR. See Intoxicating Liquor.

LIS PENDENS, notice of 498

effect of 498

how canceled 494

in partition 571

LOAN for Usr, defined 398

does not transfer title 858

obligations of borrower under SS8, 850

of lender under 856, 850

when lender may terminate 859

duties of borrower upon termination of 850

For Exchanor defined 850

transfers title 860

obligations of parties to 859

Of Monet defined 850

payable in current money 800

presumed to be upon laterest 800

reward for, called Interest 860

rate of Interest on, presumed annual 800

when not specinied 860

highest rate qjlowed 800

interest on, may be deducted in advance. . . . 860
uaorioRa, mi^ be fecovered back 860

926

Index.

Paob.

LODGINGS, for what term presumed to be hired. . 86S

rent of, when parable 868

See Landlords Tenanty Hiring,

LOGS and lumber 146

defacing marks upon 761

taking or Isijaring 795

LOST GOODS, Uking up, etc 157

concealing 795

LOST PAPER, how supplied 667

LOTTERY, definition of 748

Sunishment for setting up 744
eclared a public nuisance 744

tickets, buying or selling 744

advertising 744

disposing of property by 744

property offisred, forfeited 746

ofSce, keeping or advertisins; 744

* tickets, insuring or offering lo 745

out of territory . 745

advertisement of 745

letting building for purpose of. 745

LUMBBR. See Logs,

LUNATICS. SeePitrwnsof Umound Mind.

MAGISTRATE defined 816, 800

duty, in cases of security of peace 809, 808

must issue warrant of arrest, when 816

duties of, on preliminary examination 881, 8S4

proceeding of, on presentment 829

may issue subp<sna 867

duty in proceeding against corporation 871

as to stolen goeds coming into custody 873

as to Uking Dall 874

in issuing search warrant 875, 878

as to fagUiTes f^om justice 878

MAIL, service of papers by 666

MAIMING defined 728, 729

one^s self, to avoid duty 729

to obtain alms 729

design inferred from Injury 729

premeditation 729

recovery from li\Jury, when deemed a defense... 729

punishment of 729

MAINTENANCE 720,719

MALICE presumed in respect to libel 735

interest may be given In case of 456

exemplary damages may be given in case of — 46^

defined 800

MALICIOUS MISCHIEF, general definition of.... 789

special cases of 789, 793

MALICIOUS PROSECUTION, costs in action for,

limited 546

MALPRACTICE by attorneys 719, 720, 722, 794

by physicians 726, 748

MAYHEM. See Maiming.

MANAGING AGENT of corporation, service of

summons on 494

MANDAMUS, writ of, general provisions 925

isBue and hearing of 695

new trials and appeals in 605

laws applicable to 595

MANSLATOHTER in first degree, defined 726

punishment of 727

in second degree, defined 727

killing by mischievous animal 727

by overloading vessel 727

by explosion of nteam engine — 727

by physician intoxicated 727

by keeping gunpowder, etc., unlawfully 727

pnnUbment of 728

Jurisdiction, in what county 816

See Homicide.

MANUFACTURING CORPORATIONS 884

See Corporatiotis.

MARKS AND BRANDS 168

MARRIAGE, contract of 211

validity of 211

not subject to rules of other contracts 212

definition of 211

consent alone does not constitute 211

what consent Is necessary to 211

consent to, how proved 211

who may enter into '. ... 211

incestuous, defined 789, 212

when voidable for want of consent 212

of capacity 212

when void on account of prior marriage 212

between Indians : 212

effect of pardon upon 212

mode of solemnization of 212

by whom may be solemnised ^12

duties of person solemnising 214, 213

certificate of. 213

entry of , 214

Paob.
MARRIAGE— OonMntifd.

is evidence of 214

authentication of, when not solemnised 213

when no record 218

penalty for solemnizing illegal 751, 214

for what causes may be annul led 214

how dissolved 215

releases from parental authority 222

certain restraints upon, void 232, 344

revokes will, when 314

promise in consideration of, must be in wriUng 340
promise of, by what rules governed 212

need not be in writing 340

damage for breach of 45B

See Divorce, Hiuibatid and Wife.

of party to action, eflbct of 490

extinguishes authority of executrix 613

of administratrix 615

compelling woman to marry 738

proof of, on trial for bigamy 851

MARRIED Wt)MAN, obligations of, to her hus-
band. 216,219

right of, to support / 219, iSi

may contract as if unmarried 219

may convey separate property without hnsband*a

consent

may file inventory of her separate property

earnings of, not liable for husband s debts.

has no estate in dower upon husband's death. .

power, may be vested in 247

how executed by 246

vested in, what estate may be created nnder 247

grant of real property by, must be acknowledged
a^, 802

power of attorney by, must be acknowledged.. 808

acknowledgment by, how made 307

grant by, effect of 307
ee Husband and Wife, Wife.

action by or against, how prosecuted 488

Judgment against 928

execution against 532

may be executrix, when 613

not competent as administratrix 615

MASTER and servant, contract of apprenticeship

between 226

relation of, in genersJ 308

mutual right of protection between 211

relation of, when renewed 868

right of, to protection against abduction, etc., of

servant Sll

may discharge servant, when

See Service. ^

killing of, by servant 7^

MASTER IN CHANCERY, fees of 167

MATE defined 870

rights and obligations of 37%, 371

lienof 439

See Seaman.

MAXIMS OF JURISPRUDENCE 472,473

MEASURES. See Weights and Meamres^

MECHANIC'S LIEN 440

general provisions as to 586

MENACE defined S36

will procured by, may be denied probate 311

concent to contract obtained by, voidable. . 346, 336
MERGER, none of civil snd criminal remedies .. 47S

MILE STONE, malicious injury to 798

MILITI A, who subject to duty In 137

territory, one division 137

who commander-in-chief of 137

census of 187,138

when liable to duty 810« 138

active* how raised 138

who enrolled in 13S

organizstlon, etc., of 188, 13S

return of, by commandants 139

term of service of . , . ; 139

exemption of 139

by-laws of companies of 140

commissions in 140

annual muster of 140

resignations 141

staff officers of 141

officer's uniform 141

companies muster 141

officer's oath 141

officers and privates, how tried 141

MILL DAMS and mills 001, 604

MINES and mining 142

leneth of lode claim 142

width of same 142

discoverer to record his claim 142

location certificate, when void 14S

Indbz.

927

Pass.

MVifBS— Continued.

maBDer of locating cUim 142

marking sarface kK>undarie8 142

what deemed discovery shaft; 143

time to Biok same 143

location, how construed 143

claims subject to right of way 143

miner to secure Huri'acc owner 143

filing amended certificate 143

work to be done yearly 144

affidavit of labor to be made, etc 144

relocation of abandoned claims 144

certificate to claim one location only 144

fee for recording, etc 144

judge may order t*arvey of claim 585, 145

wltnesseii to examine 145

restitution of, if seized by force, etc 145

cntitoms, usages, etc., as to 585

homicide in forcible taking ^ — 726

conspiracy to seize 794

MINING CORPORATIONS how formed 284

term of exisience of 284

articles of, what must state 284

officers of. liable for misuse of funds 284

stockholders of, may inspect books 284

liable for labor 284

statement of accounts to 284, 285

annual report by 284

may have office without territory 285

directors of. liable for misconduct 285

Don-nser forfeits rights of 287

See Corporalwns^ Ditch O>rporatforw.

M IN OR, definition of. 208

age of, how compuied 208

custody of 224, 208

powers of 208

contracts of 208

disaffirmance of 206, 209

liable for wrongs 2()9

extent of liability of 20»

may enforce rights 209

wages of, may be paid to, when 222

allowance out of fund, for benefit of 664, 233

restraints npon marriage of, allowed . . . .232, 344
bee ChUd, Parent and ChUd, Quardiany Ward.

limitation of action by 612, 485, 487

action by and againit, how prosecuted 675, 488

costs against 548

aervice of summons against 494

cannot be executor or administrator 618, 615

aervice upon, in probate court 658

power of probate court over 605

when may nominate guardian 663

Bale of intoxicating liquor to 793

MISCARRIAGE. See AboHUm.

MISDJBHBANOR defined 806, 695

punishment of 6%

no accessories in 699

includes acts not expressly forbidden 796

Aiding in 797

compromising 870

Wbat abs Misdbxeanobs.
blashemy 699

Srofane swearing 699
abbath-breaking 699

maliciously serving process*. 701

compelling adoption of form of religious belief 701

preventing religious act 7ul

disturbing religions meeting 701

bribery, etc. at elections 705, 701, 708

betting on election 702

defrauding elector of his vote 702

voting more than once 708

procuring Illegal votes 703

voting out of precinct 708

voting by unpardoned convict , — 703

false statement on voting, etc 703

disturbance of public meetings 704

preventing public meeting? 704

electors attending public meetings 704

Intimidating electors 704

disobeying judges of elections 704

riotous conduct at elections 704

keeping false poll lieft 705

miscondnct by Judges of elections 95, 705

falsely canvassing or returning votes 95, 7U5

selling liquor ou election day 706

acting as public officer without qnaliTying 706

fialsely assuming office 706 •

attempting to intimidate officer 707 '

resisting executive officer 707 j

asking excessive fees 707 i

reward for omitting or delaying official acts 707

Paob.
MISDB MB ANOR-Continued.

fees for services not rendered 707

reward for services in extradition 879, 707

buyins or selling appointments to office 707, 706

exercise of functions of office after term 708

reftisal of officer to surrender seal, etc., to suc-
cessor 186,706, 6

after Judgment of ouster. 509

disturbance of legislature 709

preventing member from acting 709

witness refusing to attend legiinature 2, 710

reAising to testify 2, 710

misconduct by Jurors, etc 711

judicial officer, etc., receiving gift 711

improper attempt to Influence 711

jurors, fraudulently drawing 711

misconduct by officer in charge of 711

rescue of prisoner in certain cases 712

re-taking, etc., goods ft-om custody 712

escape, attempting, when 713

aiding in, when 887, 713

concealing prisoner after, when 713

permitting, by ministerial officer 717

deceiving witness 716

destroying evidence. 716

preventing witness from attending 716

Dribing witness 716

ministerial officer, unlawfttl acts by 717

refhsing to receive prisoner 717

delaying to take prisoner before magistrate 717

seizing person or property without authority... 717

misconduct in ezecuting search 878, 717

refusing to aid officer in arresting, etc 810, 717

to make arrest 717

obstrueting officer in his duty 718

extra judicial oath, taking 718

administering 718

compounding mudemeanor 718

intimidating officer, etc 718

suppressing evidence 719

buying lands in suit 719

buying or selling pretended titles 719

common barratry 719

loans on claims for collection 719

buying claims by attorney, etc 719

criminal contempt of court 720

of legislature 2

renewing motion to stay trial, when 790

grand Juror acting after challenge allowed ... .721
isclosure of depositions taken by magistrate
888, 721

returned by grand Jnry 721

racing near a court 721

selling liquor in Jail or prison 886, 885, 721

in court house, or near election poll 731

collusion or fraud by attorney 722

attorney allowing name to be used 793

refusing to pay over money 27

ImportinK foreign convicts 722

omission of duty bv public officer 722

doing act prohibltea by statute 722

disclosure of Indictment 728

evidence, etc., by grand juror 723

instituting suit in false name 723

maliciously procuring search warrant 878, 723

communication with convict 728

neglect to canvass rettims 92, 783

false certificate by public officer 783

conspiracy 728, 724

challenge, attenapt to provoke 733

posting for not fighting 738

assault, or ascault and oattery 733

libel, publishing of 784

threatening to publish 735

omitting to provide for child 737

submitting to attempt of abortion 738

concealing still- birth 738

nnlawftil dissection 742, 740

omitting to bury 740

attaching corpse for debt 741

disturbing funeral 742

defacing tomb^, etc 742

indecent exposure, exhibitions, etc 742

bawdy house, etc., keeping or letting 743

disorderly, keeping or letting 743

buyiu<; or selling lottery tickets 744

di.*' posing of property bv chance 744

keeping or advertising lottery office 744

Injuring lottery tickets, or oflering to 745

letting bouse for lottery purposes 745

keeping gambling apparatus 746

exacting money won at play 746

gambling house, keeping or letting 746

928

Ikdbx.

MISDBM£ANO}t-.amtinued.

enticing into 747

omitting to prosecute for gambling 747

masters allowing gambling on vessels 747

niciog for wager 747

pawn broking without license 748

pawn broker refbsing to show stolen goods — 748

selling pledses prematurely 748

malpractice oy intozicated physician 748

overloading passenger vessel 748

bursting boiler, etc 748, 749

usiUjg flctitlous co-partnership name 749

foi'ging trade-marks 749

keeping dies, etc., for purpose of 749

keeping goods bearing forged trade-mark 749

imitations of trade-marks 749

refllling or selling stamped bottles 75n

defacing marks on wrecked property, logs, etc. 761
officer unlawfully detaining wrecked property, 751

fraud in limited partnership . . 751

solemnizing illegal marriage 214, 761

unlawful conflnement, etc., of lunatic 751

takins usury 761

reconlning aif>charged prisoner 761

concealing prisoner to prevent discharge. . .896, 751

maintaining public nuisance 752

unlawfally keeping gunpowder 762

throwing gas-tar into public waters 752

violation of quarantine laws 768, 754

piloting without license 764

acting as port warden without authority 754

mislabeling drugs 754

poison, selling without recording sale 754, 755

record, refusing to exhibit 756

selling without label 764, 755

laying out 755

bailing hay without marking 755

ftraud in packages sold by weight 755

food, drags, etc., adulterating or selling 755

selling, etc., when spoiled 766

selling or keeping slnug-shot 756

oarryuig concealed weapon 765

prairie fires, willftil 808, 756

by negligence 803, 756

refQsmu aid at fires 756

maintaining ferry without authority 756

violation of bona to keep ferry 756

neglect to sound bell at railroad crossing 756

engineer, conductor, etc., intoxicated 756

neglect of duty by . . 1 766

neglect to guard ice cuttings 757, 756

navigation, obstruction of 757

exposing one with contagious disease 767

iklse statements to affect market price 757

publishing in newspaper 757

eavesdropping 767

racing upon highways 767

disturbing lawful meeting 757

aiding in riot, when 758, 757

participating In rout or unlawful assembly 758

remaining present at riot, etc TiS

in assembly becoming unlawfdl 768

resisting execution of process 758

prize fight, aiding in 759

chaTlenglns or betting on 769

ofilcer neglecting to report 769

forcible entry and detainer 769

unlawful re-entry upon lands 759

squatting on town lots 759

shooting, etc., in public place 760

ofliclal misconduct 761, 760

officer taking interest in contract made by htm. 760

obstructing collection of revenue 761

auctioneer having more than one place 761

selling goods elsewhere 761

unlawfully after dark 761

omitting to render account 761

ft*aud or evasion of law by 762

weighmaster making false entry 762

fblse statement in reference to taxes 762

having burglar^s tools 766

entering buildings not dwellings 766

petit larceny 772

taking wrecked goods, eto 778

evading or iniurlng gas metre 778

extortion unaer color of official right 775

attempting by verbal threat 776

receiving money in false character 776

J>er4onatIng officer, fireman, etc 776
^Ise weights or measures, using or keeping 779

marking false weight on package 779

assignments with preferences 780

franaulent conveyances 779

Paab.

MISDBM£AVOBp-Oontintied.

removal, ete., of property 7B0

InsolvencT 780

corporation, frand in subscription for stock 780

unauthorized use of names In prospectus. . . 781

miscondnet by directors of 781

excessive circulation 782

indorsement, etc TBS

officer overdrawing Account 782

fldse report of condition of TBS

refusing inspection of books 788

fraudulent insolvency of 78S

violation of duty by director TBS

railroad, excessive debt by T8S

passage tickets, keeping office for nnlawftil sale

of TB5

selling incomplete T8&

highway, obstrnction of TB8

guide-posts, mile-boards, etc., injury of. T88
ilegraph line, injury to TBB

malicious mischief, not specified 789

killing or crnelly treating animals 789

causing animals to fight 789

keeping a house for animals to fight 789

wounding or trapping birds tn cemetery — TB9

malicious injurine to freeholds 790

to growing crops T91

to fruit trees, etc 791

removing or defacing landmarks 791

interfering with piers and dams 798

destroying dams T9<

removing Duoy 792

opening or publishtng sealed letter 7SS

disclosing telegraph despatch 798

concealing telegraph despatch 796

iojuring work of art 788

gran tine liquor Ifcense wrongfhlly tn

sellins Tiqnor to Indians 796

to nabitnal drunkards, etc 168, 791

to paupers 79S

on Sunday 793

unlawftilly 158

attorney defending certain prosecutions 79i

intimidating emp^yere or laborera 794

conspiracy to seize mine . . 794

taking or receiving saw-logs nnlawJftilly 795

concealing estray 796

harborine Indians 796

voting unlawfully at town-roeetins 796

Injurions acts not expressly fbrbidden 796

medicine, unauthorized practice of 809

unlawfhlly burning prairie 808

messenger failing lo deliver poll book 92

sending pauper ont of county Itt

diversion of school money 180

false report by district clerk 186

violating jail regulations 681

MISNOMER, when allowed 8S1, 817, 502

See Name,

MISTAKE in will, how corrected S18

consent given by, voidable 886, 845

may be of fact or law .. 887

of fact, defined 887

of law, defined 887

of foreign law, is a mistake of Cact 887

in written contract, not to be followed 841

to rescind for, when not lost by agreement 845

thing obtained by, must be restorad when 840

held in trust

contract made through, not specifically en

forced

may be compensated for, when 463

in written contract, may be revised, when 468

ground for rescission, when .468, 464

in pleading, etc., court may correct SQ2

disregarded, when 872

judgment through, relief against SOi

of fact, disproving intent, a defense 607

MOCK AUCTIONS 77T

MORTGAGE, in general 480

defined 480

nature of lien of 480

transfer as security deemed a 430

bottomry and respondentia not governed by

law of 480

absolute transfer may be shown to be, when — 480

what may be subject to 480

effect of, upon after-acquired title 480

does not bind mortgagor personally 480

passes by assignment of oebt secured by it 490

on property adversely held, effect of 719, 480

power of sale may be given by 481

under, is a trast 481

Index.

929

Pahs.
IfORTGAGB— ConMntied.

how can be executed 431

mast be in writing, etc 431

A lien upon what 431

against whom 431

does not entitle mortgagee to posseselon 481

person bonnd by, may not impair secorltj 481

may be foreclosed 481

record of, assignment of^ 431

effect of. 481

discharge of. 431

of certificate of discharge of 482

on satisfaction of, certificate to be given 482

of real property, how created 430

form of. 432

who must satisfy after succession or devise. 438

record of, how made 432

effect of 482

grant Intended as, how mast be recorded

432, 488

foreclosure of 578, 681

of personal property, form of 433

how to be executed 434

may be forelo.«ed, how 433

filing of. necessary 483

effect of 438

mode of 484

where 483

renewal of 484

duty of officers concerning 434

when defects in, disregarded 434

neglijgence of officer In, not to prejudice 484
proyUions concerning, do not apply to

ships 436

removing or destroying chattels subject to. 771

* when mortgagee may take property under. . 434

property covered by, may be attached, etc. . 484

of a ship, must be recorded . 436

factor has not authority to execute 808

See Lien.
MOTHER of legitimate child, righU and duties of. 221

of illegitimate child, rights and duties of 221

succeeds to its property : 328

property of, passes to child, when 322

right of, to letters of administration 616, 617

to guardianship 668

MOTION defined 891, 666

how made 566

preferred 665

noticeof 665

reference to take affidavit on 666

to set aside indictment 886

for removal of action 888

to postpone trial 842

fkrr a new trial 867

in arrest of Judgment 867

MUNICIPAL CORPORATIONS. Bee Ineorparti-
Hon of Towns and Cities^ T\yumsMp^ Sehool
JXstrict.

MURDER defined 725, 726

design, when Inferred 861, 725

premeditation in 726

anger or intoxication no defense 726

punishment of 726

place of trial of 726, 814, 815

no limitation of prosecution for 816

See Homicide.

NAME, fictitious, party designated by, when.. .881, 502

of person, town, etc., change of 698

suing in, false 728

Sroceeding, if party indicted by wrong 881, 835
ee PictitwuB Name.

NAVIGATION, obstruction of 757

rules of 251

NEGLIGENCE defined 800

degrees of 478

slight, defined 478

ordinary, defined 478

gross, defined 473

nabiHty for, in general 252, 846

of depositary for, how limited 865

of guest, excuses innkeeper 356

hirer must repair injuries caused by his 861

liability of employer for, how limited 865

of employe for 365, 866

of carrier for 879,380

See Carrier.

when relieves principal from liability 390

of agent, principal responsible for, when 891

of insarea, does not exonerate insurer 411

of officer filing mortgage, not to prejudice 484

causing death, liability for 590

excusable, relief in case of. 577, 602

Paok.

NEGOTIABLE INSTRUMENT defined 441

must be for payment of monov absolutely 44i

payee of, must be ascertainable, when 441

may be in alternative 441

date, etc , of 441

may contain pledge 442

must not conmin other contract 442

mBj bear any date 442

dinerent species of 442

interpretation of 442

as to time of payment 442

as to place of payment 442

when payable to order, etc 442

to fictitious person 442

when issued unindorsed 442

when and for what presumed to be made 442

indorsement of. defined 442

how to be made 442

may be made on separate paper, when 442

general, defined 443

how made special 448

special, defined 443

how may destrov negotiability 443

implied warranty of. 448

berore delivery to payee, effect of 443

without recourse, effect of 443

gives privity to contract 443

party making, has rights of guarantor 443

ror accommodation, rights of party making 443

without consideration, when binding 443

in due coarse, defined 443

rights conferred by 444

ofblank 444

blanks in. may be filled up, when 444

presentment of, for payment 444

not necessaiy to cbaif;e principal 444

how made 444

apparent maturity of, defined 444

surrender of, etc., may be required on payment

of 445

dishonor of, defined 445

notice of, by whom given 446

form of. 445

how served 445

after death of party 446

at what time given 446

agent need only give principal 446

time allowed party receiving, to give ... 446

takes effect in whose favor 446

when excused 446

presentment and notice of dishonor of, when

excused 446

delay in, when excused 447

how waived 447

how extineal»hed 447

bow revived after extinction 447

implied warranty on sale of 861

duties of agent employed, to collect

See Bank Notes^ BttZ of Exchange^ Prominury
Nnte^ Checques.

NEW TRIAL, IN Civil Casks, defined 527

causes for 527

motion for, upon what made 527

when to be made 627

court always open for hearing of 481

notice of, what to specify 527

where heard 527, 528

granted without motion, when 528

when no verdict is given 623, 691

in mandamus 593

in special proceeolngs 595

when ordered on appeal 480, 550

In Criminal Casks, defined 857

effect of granting 857

court may grant, in what cases 857

applicatiiin for, when to be made 857

on special verdict ordered, when 854

when verdict prevented , 852

when Jury not all present at giving verdict. ... 853

NOLLE PROSEQUI abolished 880

NONSUIT. SeeJ)lsmi89al

NOTARIES PUBLIC, appointment and term of . . . :»

how qualify *. . S3

records of, where filed on vacancy 28

protest of bills and notes by 451, 23

records of evidence 24

sealof. 24

commission to be recorded 24

full credit to official acts of 24

may administer oaths 81

fbesof 169

may issue 8ubp€ena 557

take deposition 569

930

Indsx.

Page.

NOTARIES PUBLIC— Contijiued.

take acknowledgment 306

See Officers.
NOTB, promissory- See Promigsury Note, NegotiOr
hie Tnntmment-

NOTE OFISSUK 520

NOTICE defioed 474

HCtual defined 474

constructive defined 474

who deemed to have 474

false, nut made valid by unbaequent event 474

record of real mort^cage operates as 4^

of a«Hignment of mort$rage operates ae 4.31

filing of chattel mortgage operates as 433

legal, must be in writing bGb

how served 565

NOVATION defined 383

how made 338

a contract 3:i3

may be rescinded, when 883

NUISANCE defined 686, 4TO

nothing anthorLzed by staiute, tu be deemed. . . 470

liability of siicce»»sive owners of 470

abatement of does. not prejudice claim for dam-
age<« 470

public, defined.

75^, 470

not legalized by lapse of time 471

remedies against 471

by indictment, how regulated 471

when private perHon may sue for 471

may be abaied by whom, and how 471

mamtainine:, etc., a misdemeanor 7{^

private, defined 470

remedies against 586, 471

may be abated by whom, and how 471

only upon notice, wlien 471

penal law specifically enforced against 461

OATH defined 475, 881

administratioa of. 31

afilrraation, when allowed tn place of 81

defined, in refurence to perjury 714

of ofilce. violation of, not perjury 714

extrajudicial, lAking or administering 718

OBLIGATION defined 835

how created 325

interpretation of ^tt

^oiut or several 326

joint, when ^6

contribution between parties to 3i26

coDdltlonal, when 326

species of 327

wiiac mnsi be done before enforcing 327

when condition of, void 327

Involving forfeiture, how interpreted 327

See ConditAoiiH.

alternative 827

right of selection nnder, who has 327

how lost 327

how to be vzercised 327

how interpreted, when one alternative void 328
transfer of burden of .^8

of fight of 328

running with land 328

See Covenants.

extinction of 329

by performance ^29

See Performance.

by offer of performance 880

See Offer of Performance.

by preventiO'i of performance ]{32

See Pi^ecention or Perftyrmance.

by accord and satisfaction 838

See Acctu'd^ Saliftfaction.

by novation 383

See Novat Utn.

by release 334

See Release.
created by contract, see Contract.
imposed by law 346

to abstain from injury 346

to compensate for deceit 346

* CO restore thing wrongfully acquired 346

upon df-mand 346

wit hunt demand 346

to coinpcn!*ate for negligence 346

damagu.- for breach of 458

sabject of ownership 229

how far a good consideration 339

implied warranty on sale of written 851

not implied from creation of Hen 428

specific performance of 462

Paoi.
Bee Specific Performance, Aoencys Carrfcipe,
Ihposit, Exchange, Qtuuranty, HirinOy In-
demnity, Insuranccy Lien, Law, Negotiable
IntdrumcnU PartTiership, Service., Trwd.

OBSCENE hooks, etc., see Indecent.

OCCUPANCY, title acquired by 2S%

OCCUPYING CLAIMANTS 585

OFFENSE. See Crime.

OFFER of judgment G83, 554

to liquidate damages Sbi

OFFER OF PERFORMANCE exllngutshes obli-
gation aao

for payment of money, when 381

partial, of no eflText 880

to be made by whom 880

to whom 380

where 381

when 381

with compensation for delay SSI

to be made in good faith 831

to be unconditional SSI

except as to certain things 331

party making, must be able SSI

receipt may be required upon 331

objections to mode of, when waived 382

thing offered upon, need not be produced 881

must be kept separate 8S1

title to. vents in creditor, when 382

how to be kept by debtor 3S

effect of, on incidents of obligation 832

of conditions concurrent, necessary, when 3S7

excused, when 327

ability and willingness, when eonlvalent to 444

OFFIi ' E, lawful exercise of, not enjoined 465

action for usurping 568, 569

for forfeiture of 588

acting in, without qualifying 706

falsely assuming TM

buying or selling appointment to 707, 708

such appointment void 706

wrongful exercise of. 708

See (mcers. ,

OFFICERS, civil, how to qualify 7

bonds of 1 , 8

oath of. 7, 8

term of, commences when 9

shall qualify, when 9

effect of failure to qualify 9

bonds and oaths of, now construed 9

to account before a second term 9

must deliver books, etc., to successor 5, 50, 9

deputies of 10

of new counties appointed, term 82

county, enumerated 34

who eligible as 84

certain, to settle with county board 80

resignation by, to whom made 49

vacancies, events causing 49

causes for removal of certain 49

action to remove 811, 813, 50

vacancies, how filled SO

when not to be filled SO

appointments In writing, term 51

appointees to vacancies, how qualify 51

when may resign <a

who eligible as 96

dereliction by certain, forfeits pay 131

compensation of. 164, 178

aflidavit of time, when required 178

payment to, without 178

acts of certain, legalixed 198

actions against, place of trial of 498

determination of, how pleaded 600

privilege of, as witness 568

executive, giving or offering bribe to 707

asking or receiving bribe 707

attempting to intimidate 707

resisting T07

askln s or receiving excessive fees 707

taklne reward for omitting or delaying

official acts 707

taking fees for serricea not rendered. ...... 707

taking reward for services in extradition. . . 707
refbusal to surrender seal, etc., to snccossor. 706

de facto, validity of his acts V06, 706

administrative, same provisions apply to 706

judicial, offering bribes to 710

taking bribes 710

receiving gifts fh)m parties 711

ministerial, permitting escape of prisoner 717

injury to records or embezzlement by 717

committing other onlawAil acts 717

Index.

931

Pass.
OFFICB R8— Continued.

rel\i8iiig to receive prisone r into his cafltody . . . 717
delaying to take prisoner before magistrate 818, 717

public arresting, etc., without authority 717

refusing aid to, In maklni^ arrest, etc 810, 717

misconouct by, in executing search 717

obstructing, in discharge of duty 718

attempt to intimidate 718

omisston of duty by 811, 72i

disclosing indictment 723

giving false certificate 723
etainlng wrecked property 751

embezalement by 760

taking interest in contract made by him 760

official miscoDdnct by 760, 761

peace, duty in suppression of riot 8lo, 811

powers and duties in making arrest 819, 820

See (Met* Township, Election,

OMISSION, in proceeding, how supplied fiOS

ORDER defined 691,565

made out of court, how vacated 549

how reviewed 549

appeal from 479, 480

court always open for entry of 481

out of court how made 565

of probate court 637

ORDERS, Incorporation of 293, 292

OVERSEERS OF THE POOR. See Poor, County
CornmUgioners.

OWNER. See Property.

OWNERSHIP. 8ee Property,

PAPERS defined 474

transfer of, on change of venue 690, 674, 493

to be furnished court 520

admission and inspection of 682, 556

lost or withheld 567

flJing and service of 565

production of, in probate court 605

PARDON does not restore conjugal rights 212

governor, power to grant 873

PARENT, child protected against abduction of. . . 211
deserting or neglecting child 737

PARENT AND CHILD, by birth 221

when relationship of, legitimate 221

rights and duties of 221, 222

not liable for each other's acts 222

succession of, to each other's property .. . .321, 322

by adoption 223

contract of either avoided by duress, etc., of

theother 386

marriages between forbidden 212

See ChUdL

PARTIES to civil actions 488

how designated 482.

on appeal 649

party in interest must sue 488

exception in case of trustee, etc 488

who may be Joined as plaintiffs 489, 684

who may be made defendants 489, 584

united in Interest, must be Joined 489

need not be Joined, when 489

in case of general Interest of many 489

of several, liable on instrument 490

married woman as 488

infant as 675, 488

effect of death or disability of. 578, 490

of transfer of interest of 490

others ordered brought In as, when 491

intervention of 491

interpleader of 491

special partner need not be Joined as 402

executor, not qualified, need not be 643

for partition 671, 572

unknown or absent 571, 495

cannot serve summons 494

defect of, ground for demurrer 497

examination of. 566

in supplementary proceedings 643, 545

may submit case without action 596

service upon 666

to special proceedings 592, 691, 598

tp criminal actions 806

to crimes, classification of 698

to contracts, see Contracts.

PARTITION, general provisions as to 670

place of trial of 492

guardian of infant, defendant in 489

of real estate of decedent 653

PARTNER, who is 395

part owner of ship Is not 395

can only be admitted by unanimous consent 895

interest of. In partnership property 395

•hare of, in profits and property 395

Pasr.

PARTNER-ContintttJd.

may require firm property to be applied to

debts.. 396

lien of, upon partnership property 396

relation of, confidential 396

is a trustee 396

obligation of, as trustee 396

must act in best of faith with copartner 396

may not take advantage of co-partner 306

must account to the &m 396

\ entitled to compensation for expenses • 396

not for services 386

may renounce partnership, how 396

effect of renunciation by 896

who liable as 306

Gbnxbal, authority of 397

to bind minority of co-partners 397

as agent for the firm 397

to bind firm by contract in writing 387

to make general assignment, when 397

to dispose of good will, when 397

of whole propertv, when 397

confined to acts in good faith 897

ih liquidation 399

f profits made by, belong to firm, when 396
labilltyof 396

Joint with CO- partner 398

fbr acts of co-partner 398

continues after dissolution, when 399

notice of withdrawal of, when sufficient 399

may act in liquidation, when 399

in what manner 399

in special partnership, has sole authority 402

may sue, etc., without special partner 402

liability of 403

Sfxcial, authority of 402

may investigate 'and advise 402

may lend to or for firm 408

claims of, on firm are subordinate 402

not necessary party to actions by or against firm 402

may not withdraw capital 402

may receive interest snd profits 403

when becomes general 408

liability of 403

of contribution of 403

as general partner 401, 406

new, how admitted 404

may quit partnership, how 404

transfer fVom one to another does not avoid in-
surance 406

insurance by, when applicable to partnership

interest 406

See Partnership.

omitted in action, proceeding against 496

cannot be administrator of deceased partner... 415
powers and duties of surviving 399, 642

PARTNERSHIP defined 895

nterest defined 231

, oint use of ship, does not create 395

low formed 395

property, defined 895

Interest of partners in 396

to be applied to partnership debts 396

what presumed to be 396

how passes bv succession 399

exemption or. 536

profits and losses, how divided 395

obligations of parties to .396

See Partner.

renunciation of 396

effect of 396

genera!, defined .. .397

bound by decision of majority 397

each partner agent for 397

authority of partners In 897

acts in bad faith do not bind 897

obligations of parties to 898

profits of partners belong to 398

partner In, may not engage in certain busi-
ness 398

may engage in other business 398

must account for certain profits 898

liability of 898

of one held out as 396

who liable as 398

duration of 398

how dissolved 396

partner may withdraw fh)m, at any time ... 898

entitled to dissolution, when 399

notice of dissolution of 399

change of name, when sufficient 899

power of^partncrs after dissolution of 389

liquidation of 889

932

IkdeK.

Paos.
PARTNBRSHIP-Omiintied.

who may act In

who may not act In 899

powers of partner acting in 899

me of flctitlons namea bv 749, 400

certificates to be filea on^ when 400

Speoial, how formed 401

of whom composed 401

certificate of, to be made 401

to be acknowledged 401

to be filed, etc 401

copy of. to be recorded 401

to be published 408

affidavit of payment of capital Qf, required 40S

of publication of certificate of, required — 408

when completely formed 408

renewel, etc., of, to be certified, recorded, etc. . 402

in what name to bu conducted 408

sign to be pat up by 408

who may transact business of. 408

special partner in, ma^^ investigate and advise.. 408

may lend to, and recover from 408

must not withdraw capital from 408

may receive profits from 408

when becomes general 406

general partners in, may sue and be sued alone. 408
transfers of, with intent to prefer creditors,

void 408

liability of general partners in 40S

of special partners in 408

who may not question existence of 408

bow made general 406

admission of new partners in 404

dissolution of 404

frtiud in, penalty for TBI

partners may agree not to do business in same
town after dissolution of 844

PASSAGE TICKETS, sale by agents regulated. .. . 784

by other persons forbldoen 784

of certificates or receipts . . 786

conspiracy to sell 785

pnniehment for prohibited sales 786

ofiSces for sales of, disorderly houses 786

sales by owners, station masters, etc., allowed. 785

requisites of. 786

penalty for selling incomplete 788

requisites of indictment 786

PAUPERS. SeePdor.

selling liquor to .^ T98

PAWNBROKER, acting Without license 748

reihsing to exhibit stolen goods 746

selling pledge too soon 748

concealing name of purchaser, etc 748

PATMENT defined 880

application of general 880

oi less than liquidated debt, when satisfaction.. 888

time allowed lor 848

to agent, when sufficient 890

when necessary to claim on indemnity 480

See Performance, Offtr of Performance.

effect of, on limitation 487

examination of plaiutiff as to 619

or debts of decedents 649,606

PEDDLERS, license required 161, 160

granted by county board 160

authority under 160

temporary permit by clerk 160

certain persons excepted 161

territorial license 119

PENAL CODE, title of 900,696

objector 69B

not to be strictly construed 696

PENALTY imposed by contract void 843

surety not liable beyond 424

specific relief not granted to enforce 461

contract with, may be specifically enforced 468

action for, limiiation of. 486

place of trial of. 492

arrest in 608

in justice's court, when 678

when collected, goes to county fhnd 808

incurred, not released by repeal 900, 476

PENNINGTON COUNTY defined 198

organization provided for 198

PERFORMANCE of obligation extinguishes it.... 329

by one joint debtor relieves all 329

to one joint creditor sufficient 329

in mode directed by creditor sufficient 329

effect of partial 829

when called payment 330

application of general 330

o{ condition precedent, necessary when 327

when excused 327

PERFORMANCE— 6m6(nued.

offer of 330

See Offer of Performanee.

prevention of 332

See Prevention of Perfcrmanee.

what time is allowed for 331, 343

partial does not extinguish lien 429

specific 482

ot conditions precedent, how pleaded 500

PERISHABLE PROPERTY, sale of. on attachment 512
on execution 536

PERJURY defined 714

irregularity In administering oath, no defense 714
making of deposition, etc., is complete, when 715

incompetency of witness, no defense 715

witness need not know his evidence materlaL. 715
stating what one does not know to be true. . . 715

punishment of 715

summary committal of witness suspected of. . 715

securing proof of 715

convict of, when incompetent as witness 715

subornation of 715

indictment for 8S2

PERPETUATION OF TESTIMONY 564

PERSONAL PROPERTY defined 801, 475, 2»

by what law governed 250

accession to 296

See Accession,

transfer of ... 303

See Tramfer.

bequest of 311

See TTilZ, Bequest.

real property, when deemed 218

mortgage of. 433

See MnrtgoQe.

gle<tee of. 435
ee Pledge.
remedies concerning, see DamtOQe^ Specific Rdief.
See Property^ Corporation, Qood WuU Product
of the Mind, Ship, Trade Mark.

verdict in action for SM

judgment in action for S2S

PERSONAL RELATIONS 211

See Marriage, Parent and Child, OuorvUcm,
Ward, Master, Servant.

PERSONAL RIGHTS defined and regulated 210

PERSONS, general proyisions as to 206

meaning of the word 880, 801, 474

PERSONS OF UNSOUND MIND deflnM 208

custody of, how regulated 20B

contracts of 209

willsof 209,311

liability of, for wrongs 20»

marriage of, may be annulled 214, 215

guardian of, may be appointed 665, 224

proceedings for appointment of 663

powers and duties of 665

may be placed in asylum 1^ 226

restoration of, how adjudged 665

service of summons i^ainst 491

limitation of actions by 612, 484. 486

service upon 658

embezzlement of estate of 671

incapable of crime, when 697

if acquitted, how disposed of 865, 697

unlawful confinement of 751

force to restrain, lawful when 734

PETITION to perpetuate testimony 564

to incorporate town 71

for organization of county 31

to change name 566

to locate, change, etc., highway 125, 128

formill-site 601

to take land for railroad 269

for probate of will 707

for letters of administration 616

to revoke letters 617

for sale of decedent's estate 6^635

for appointment of guardian 633

PHYSICIAN not compelled to serve as juror 38

malpractice from intoxication 748, 727

who qualified as 802

unauthorized practice as, punishable SEU

of county jail 883

PIERS, interfering with 792

PILES, removing from embankment 792

PILOT, shipmaster must take, when 370

liable for negligence of, when 394

acting, etc., without license 764

PLACE OF TRIAL of civil actions 674, 49l

change of 674, 4S2

of criminal action, change of 839, 690

of public offenses 813, 815

0,

Hv..^WvxW^ ciV.^^.«i:,i4

i

Indbx.

93S

PA«a.

PLAINTIFF, who is 482

who may be Joined as 488

complaint, first pleading by 497

capacity to sue, demurrer for want of 497

in attacnment, may sue instead of sheriff — 514
must furnish copv of pleadings, etc., to court. 520

failure to proceed, dismissal for 528

judgment for one or more of seyeral 528

may be required to give security, when . . .619, 548

relief granted to 528

death of , pending action 490

to have satisfaction of but one Judgment 496

See Parties.

PLATS, townorcity 84, 87

of townships 52

by county surveyor 48

PLEA to criminal complaint 690

to Indictment, kinds of 838

must be oral 888

form of 838

of guilty, by defendant in person 838

may be withdrawn, when 838

of not guilty, what puts in issue 838

what may bo shown under 839

entered on refusal to plead 839

of former acquittal 849

See PUadinos^ Dtftndant^ /ndlctment.

PLEADING, IN Civil Actions 497

existing forms of, abolished 497

efficiency of, how determined 497

must be subscribed by whom 499

verified, when 353, 499

verification of, form of 499

by whom to be made 499

items of account need not be set forth in . . 499

to be liberally construed 500

improper matter in, may be stricken out . . 500

when will be made more definite, etc 500

Judgment, etc., how may be stated in 500

performance, how may be stated in 500

claim on instrument for money 500

private statute 500

mistakes in 501

amendment of 504

See A.menAm«nt.

copy of amended, must be served 502

certain errors and defects in, disregarded. 503

supplemental 503

when to be filed 566

lost or withhold 567

striking out, for refusal of party to testify. 556
See ComvlainU Answer^ Demurrer^ iieply.

In Criminal Actions, forms of 830

sufficiency of, how determined 830

Jiidgment, etc., how may be stated in 532

private statute 832

errors and mistakes in 872

on part of territory 831

See Indictment.

on part of defendant 8S7

See Demurrer^ PUa.

In Justice's Cotjbt, civil cases 676

criminal cases 690

PLEDGE defined 435

what to be deemed 430, 435

lien of, dependent on possession 435

covers increaiie of property 435

lienor may, to extent of lien 435

factor mav not 398

when valid against real owner 435

to secure anotoer's obligation 435

when may be withdrawn 486

holder, defined 436

obligations of 436

how may be exonerated 436

further, when may be required 4S6

sale of, may be made, when 436

not until demand made 436

notice of, necessary 436

when may be waived 436

demand before, may be waived, how 436

how made 486

• pledgor may compel, when 437

evidences* of debt under. ../... . » 436

pledgor entitled to surplus at 437

what pledgee may retain from 437

pledgee may purchase, how 437

foreclosure of 437

Secl^^n.
^^ may be contained in negotiable instrument ... 442

POISON , sale of, must be recorded 764

refusing to exhibit record 755

selling without label 755

Pa«s.
POISON-Oontinued.

laying out 755

See Attempt to KUL

POISONING food, wells, etc 748

cattle 789

POLICE, in cities, etc., how regulated 809

duty of officer in charge of 810

POLITICAL CODE. 1, 206

may be referred to by title 900

POOR, overseers of, commissioners are 146

suits by and against 146

duty of, generally 148, 147

in county without poorhouse 147

as to complaints by poor 148

to bind out poor children 228, 151

return by, to county clerk 149

compensation of 149

settlement with county board 149

each county to relieve its own 146

settlement now acquired 146, 147

allowance to certain 148

when settlement uncertain 148

of other county, relief to, when 148

removal of, to proper county 149

non-resident sick, relief to 150

burial of 160

asylum for 150

superintendent of 150, 151

physician of 150

tox for 151

inspection of 152, 151

instruction at 151

discontinuance of 151

tax for support of 162

sending out of proper county 162

bringing in pauper 152

appeals in matters of 148, 151, 152

PORT WARDEN, acting as, without authority.. . . 764

POSSESSION of real property, when may be re-
covered 4.. 461

of personal property, how recovered 462

change of, not necessary to mortgage 430

necessary to pledge 435

to transfer of chattels, when 466

mortgagee, when entitled to 431

of real estate, when presumed 483

of tenant, possession of landlord 484

adverse, what constitutes 484

of estate of decedent, who entitled to 626, 624

of executor, eto., is possession of heir 642

POWER, in relation to real property 244

limited to those specified 244

defined 244

author of, defined. 246

holder of, defined 246

general 245

special 246

beneficial 246

In trust 245

general 245

special 246

who'can create 245

who may hold 246

how created 245

reserved by grantor of estate 245

irrevocable 245

lien upon property 246

execution of, by whom 246

how made 246

by devise 246

when not by will 246

when author's directions as to, binding.. . . 246

not binding 246

consent of third person to, how given 247

how far necessary 247

may be compelled, when 249

instrument In, need not recite power 247

may be recorded- 247

suspension of alienation by, how com-
puted 247

what estate may be given by 247

how affected by fraud 247

excessive, disposition by virtue of 247

married woman may be vested with 247, 248

vested with, may act as if unmarried.. 247, 248

absolute, gives estate in fee, when 248

when deemed absolute 248

to life owner to make leases, grantable 248

cannot be separated from estate 248

how extinguished 248

bound by mortgage 248

special and beneficial, liable to creditors 240

beneficial, not specified, void 90

934

Inbbx.

Paoi.
POWER— ConMmied.

in trust, Is imperative 240

shares of beneficiaries under 249

execution of, after death of trustee 249

when devolves upon court 249

mav' be adjudged for creditors 249

defective, may be cured 249

certain provisions apply to 249

POWER OF ATTORNEY, certain provisions not

applicable to 244

gratuitous employe under, must act S65

by married woman, how must be executed — 902

PRAIRIE FIRE, setting out 756

regulation of 80S, 804

PRAYER for relief in complaint 497

PRELIMINARY EXAMINATION, magistrate's

duties on 821, 824

rights of defendant 821, 822

defendant discharged, when 822

held to answer, when 822

in what cases, admitted to bail 822

when committed 822

securing witnesses before grand iuiy 823

PRESCRIPTION, title acquired by 296

PRESENTMENT defined... 827

twelve jurors must concur in finding 82S, 829

must be signed by foreman 829

Sroceedings on presenting 829
ee Negotiable instrument.

PRESUMPTION that grant was delivered at its

date 800

that gift is made in view of death 904

that right or obligation is joint 326

that creditor's retention of part performance is

not voluntary 330

that written instrument is upon consideration 340

as to origin of uncertainty in contract 342

of extent of damages, may be agreed upon,

when 344

that depositary is in fault in certain cases 355

as to term for which real property is hired 362

that hiring of real property is renewed, when . 362

that master's certificate to sailor is true 371

that managing ship owner has no compensa-
tion 372

as to dealings between trustee and beneficiary 384
as to time rei>resentation in insurance refers to 407

that insured is aware of prior loss 413

that negotiable paper is for value 442

that bill of exchange is dishonored, when 444

as to damage for conversion of personal prop-
erty 469

as to ade9uacy of damages as relief 462

that parties intended a fair agreement 463

conclusive, that certain transfers are fraudu-
lent 466

See Evidence.

that possession follows the legal title 483

that tenant's possession is landlord's, 484

of death, when arises 563

of negligence from killing stock 590

as to proceedings of probate court • 606

that defendant fa innocent 847

of murder from homicide 851

PRETENDED TITLES, bu>'ing or selling 719

PREVENTION OF PERFORil ANCE, when an ex-
cuse 332

righlR of debtor in case of 332

PRINCIPAL does not follow incident 301, 473

incident follows 430, 301, 478

In Agency and agent, defined 388

relations of 388

may authorize agent to do what 388

agent cannot have authority to defraud 389

consideration not necessary to bind 389

must have power to do act ratified 389

authority conferred by 389

may be disobeyed, when 390

represented by agent for what purposes . . . 390
bound by incomplete execution of authority,

when 390

deemed to have notice of what 390

bound by act in excess of authority, how

far 390

nnder ostensible authority, when 390

by instrument, when 391

exonerated by payment to agent, when 390

claim against agent may be set off against,

when 391

responsible for wronffs of agent, when 391

agent, when responsible as 391

must not deliver to, when 391

has no connection with sub-agent, when 892

Paci.
PRINCIPAL-Oontintied.

represented by sub-agent, when 882

agency may be revoked by, when 392

In Guaranty, consent of, not necessary to guar-
anty 421

removal of, equivalent to insolvency 423

liability of guarantor on default of iSH

notice to guarantor of default of, when neoe»>

sary 42S

obligation of guarantor cannot exceed that of. 423
guarantor liable notwithstanding disability of. 423

guaranty for successive liabilities of 423

guarantor released by certain dealings with... 42S

not released by delav in suing.: 424

by discharge of, by act of law 424

indemnified by, how far liable 421

Is Suretyship, apparent may show he Is surety. 424
surety may require creditor to proceed against 425

may compel, to perform obligation 425

mav enforce creditor's Mmeales against. . . 425
entitled to application of property of, to dis-
charge of ODllgation 42&

must reimDurse surety 425

In Crime, who is e9S

local jurisdiction 815

and accessory, distinction abolished 8S3

PRINTERS, legal rates for 171

PRISON defined 718

escape from 887, 712

attempting 712. 713

sellingjlquors in 721

PRISONER defined 713

rescuing, from custody 717,712

re-arrest of, after escape » 820, 712

aiding, to escape 713

permitting escape of 717

refusing to receive, into custody 71;

reconfining, when discharged ^1

concealing, to prevent discharge 89(5, 751

treatment of juvenile 889

release of, on nabeas corpus 882

PRIVILEGED COMMUNICATION, definition of

- 735.210

in session of grand jury 826

PRIVILEGED PUBLICATION, definition of 210

report of official proceeding is 735

PRIZE FIGHT, punishment of 799

challenge to, punishment of 758

defined , 739

bettingon 7»

leaving territory to engage in 750

place of trial 814,739

officers to report suspicion of 759

PROBATE CODE 605, «72

title of 900

PROBATE COURT, estabUshed 46

is a court of record 46

always open 46

terms of 46

judge of, when elected 84

office at county seat 46

coiint>' provides furniture, etc., for 46

when not to be counsel 46

when disqualified to act 606, 829

may administer oaths SI

powers of 606

leesof 158, 167, 169

jurisdiction of, generally 605, 481

proceedings of, now construed 606

issue, etc., in, when sent to district court 606

of what county, has jurisdiction 607

orders and decrees of 657

citations of, what to contain 657

trials, judgments, etc., in 657

may appoint attorneys for parties 658

certain judgments, etc., of; must be recorded. 658

appeals from 6S9

PROBATE JUDGE. See Probate CourL

PROCESS defined 478

form of civil 478

amendment of SOS

lost or withheld 567

service of ^ ; . 566

of probate court, service of 606

when it may be served on Sunday 700

maliciously serving in holy time 701

takiuff, etc., property in custody under 712

resisting, in county in insurrection ..811, 717

dLsobeying or resisting, is contempt 720

combination to resist 758

civil, not served on election day 95

PRODUCT OF THE MIND, how fax subject of
ownership 291

Indkx.

935

PRODUCT OF THE MIND— Omtintied.

Hhares of joint owners of 295

may be transferred 2$)5

excrasiTe right to, how lost 295

rights of se<H)nd author of 295

PROFANE SWEARING defined 699

punishment of 699

summary conviction for 699

PROHIBITION, writ of, general provisions 594

issue and hearing of 595

provisions applicable to 595

of action, effect on limitation 487

PROMISSORY NOTE defined 452

instrument in form of bill of exchange, when

deemed 452

certain provisions apply to 452

effect of delay of presentment of 452

apparent maturity of i 445

days of grace on 448

See Neaotiable Ingtfitment.

PROOF of instrvments for record 806

by whom taken 806

by whom made 307

' officer must know person making 907

where witness, etc., are dead, etc,, how made 307

certificate of — 808, 309

of service of summons 496

fallureof 502

laws of other state or territory 562

of will 607

PROPERTY in general 229

defined 801, 476

nature of 229

ownership in 229

in what may exist 229

modifications of 230

conditions of 232

termination of 234

real, what 229, 230

personal, what 280

always has an owner 230

what owned by territory 230

who may hold 230

interests in 230

absolute 231

qualified 231

several 281

Joint 231

partnership 231

In common 281

present 231

future 231

perpetual 231

limited 231

vested 28i

contingent 231

future, may be in alternative 231

not void because improbable 232

posthumous children take, when 232

passes by transfer, etc 232

only those specified 232

when void for suspension of alienation 232

how defeated 234

what deemed time of creation of. 234

conditional 232

restraints upon alienation of 282, 233

accumulation of Income of 233

See Accumulations.

rights of owners of 233

who to have income in certain cases 233

ownership of, how terminated 234

real or immovable 235

See Real Property, Estates^ ServttwUSj Uses
and Trusts^ Fowers.

Personal or movable 250
ee Thing in jLclion, 8Md^ Corporationtt^ Pro-
duct of the Mind, Trade Marks, Good Willy
LeUers.

acquisition of 296

by occupancy •. 296

amounting to prescription 296

by accession 297

See Accession.

by transfer 299

See Transfer^ Orant.

by will 311

See WiR.

by succession 321

^ee Succession.

sale of 818

Bee Sale.

exchange of 852

See Exehangc.

Paos.
PROPERTY— Oon(inii«l.

deposit of 353

SeeJDepostt.

358

loan
SeeXiOdfi.

hirine of 361

See Hirtnq.

carriage of 873

See Carriaoe.

insurance of 404

See Inmirance.

lien upon 427

See Lien.

mortgage of 430

See Mortgaoe.

Sledge of 435
ee Pledge.

distrained doing damage, action for 500

execution against 532

perishable, levied upon 512, 536

forfeited to state 570

force in defence of. lawful, when 807, 211, 734

PROTEST. See Bitts of Exchange.

PROVISIONAL REMEDY, after allowance of.court

has jurisdiction 496

species of 503

See ArrtO. and Bail, Claim and Delivery, In-
junction, Attachment, Receivers, Deposit in
Court.
PUBLICATION of dissolution, etc.. of partnership

404,399

of formation of special partnership 402

of renewal of same 402

service of papers bv 676, 560, 531, 495, 572, 571

of notice ot execution sale 536

of notice of sale under mortgage 579

of laws 4

of proceedings of county board 40

of delinquent tax list 114

of statement of insurance company 283

judgment after service by 518

in probate court 667

of false report of court proceedings 720

PUBLIC EDtUATION 173

donations for 186

See Superintendent of Public Instruction,
County Superiniendent of Schools, PubUc
Schools, School District.

PUBLIC SCHOOLS, visitation of. 174, 176

sectarian instruction in, discouraged 174

superintendent of 175

teachers of, institutes for 187, 175, 186

to file report with district clerk 185

examination of 177, 174

hiring of 184

freetownom 184

branches to be tausht in 184

revenue for suppon of 184, 185

in cities, etc., entitled to share of public fund. 185
See Superintendent of Public Instruction,
County Superintendent of Schools, School
DMriet.

PUNISIfMENT for crime, species of 805, 695

must be preceded by conviction 805, 696

how determined 696

of felonies and misdemeanors 696

who liable to 696

mitigation of 776, 797

PURCHASER, record of conveyance, notice to

subsequent 310

for value, relieved from defective execution of

power 247

fraudulent grants, etc., void against 310

exception in case of notice to 310

when grant is revocation of power in

favor of . 310

unrecorded convevance. when void against 309
title of, unaffected by certain provisions. . . 311

by trust 384

unfiled chattel mortgage, void against 433

specific performance not enforced against. 463

certain transfers void against

grant with defeasance, absolute in favor of.

when 433

lien void against, when 429, 430

QUALIFICATION for office .7, 9

See Ojnean.

QUARANTINE LAWS, violaUon of 752

QUESTION of fact, actual fraud is 466, 337

of fact, not in issue by pleadings, trial of 482

decided by jury P 847

of law decided by court 847

QUO WARRANTO, action in place of 568

936

Inbbz.

Pagb.

RACING on Sunday 700

near religious meeting 701

nearacourt 721

for wager, declared a nuisance 747

how punished 747

on highways 757

RAFFLE. See LotUry.

RAILROAD CORPORATIONS, taxaUon of 102

IKJwerg of, enumerated 278, 268, aOJ)

proceedings hy, to condemn lands 269, 271

rights and duties of, as to ways 277, 271

occupation of streets, etc.. by 272

may cross, etc., other railroads 272

consolidation of 272

proceedings for 274, 275

efFectof 275

obligations after 275

extension of road into other states 272, 278

power of. to mortgage property 273

to aid other railroads 275

annual report of 276

general duties of 276

penalty for violation 276

when not liable for personal injuries 277

duty to passengers 277

to keep bridges in repair 277

to erect signs at crossings*. 277

as to bell and whistle 756, 277

to make crossings 278

when passenger may be ejected 278

liability of, for injury causing death 690

for stock, killed or Injured 590

contracting excessive debt 783

such debt valid 783

malicious injury or obstruction of road of 788

See Corporati(m8^ Carrter.

RAILROAD TICKETS. See Pcuuagt Tickets.
RAPEdefined 785,

when physical ability must be proved

two degrees.

\

punishment :

RATIFICATION, voidable contract valid by, when

Sec Agency^ Agent.
REAL ESTATE. See Real Property.

REAL PROPERTY defined 801, 476, 229,

interests In, how denominated

by what law governed

estates in

of inheritance

fee simple 235,

fee taU, abolished

freehold

for years

at will

future

in reveniion

remainder

termination of

burdens or servitudes upon

See Easementg, Serviludee.

rights of owners of

in respect to water

how may oe used by owner for life

by tenant for years or at will

remedies of devisee, etc., for rent of

of lessee against assigns of lessor of

of lessor against assigns of lessee of

rent of, how recoverable

who may sue for injury to inheritance in

boundaries of

sky

water

736
736
736
736
338

way

lateral support

trees :

coterminious owners of, their rights

obligations of owners of

owner of life estate

coterminious owners

uses and trusts In ,

See Tnuft in Real Property.

powers in relation to

See Powers.

of Indians, not alienable

accession to

See Accession^

transfer of

See Trantfer.

hiring of

See Hiring.

when deemed personal

seller of, must execute sufficient grant. . .
agreement for sale of, must be in writing.

230
232
235
23.3
235
236
236
236
236
236
236
236
23()
237
238

240
240
240
240
240
240
240
241
241
241
241
241
241
241
241
241
242
242
242
242

244

209
297

301

862

318
348
849

Pa«b.
REAL PROPERTY-Cbnfintletf.

morteageof 432

See Mofrtgage.

remedies concerning, see Dam(Hfes% Relief.

limitation of actions to recover 4gi

for trespass upon 485

possession of, deemed to be under legal tifle.. 48S

adverse pos-aession of > — 4Si

entry on, when valid as a claim 48S

right to, not affected by descent cast 484

parties to action s for possession of 489

judgment for sale of 529

partition of 570

actions aS'ecting, general provisions 58(

notice of lis pendens in 585, 493

place of trial of 491

lien of judgment on 529

execution against S32

title to, under judgment set aside 495, 541

conflicting claims to, determination of 584

of religious bodies 201

REASONABLE DOUBT, in case of, defendant to be

acquitted 817

to be convicted of lowest degree 848

RECEIVER appointed, in what oases 516

upon dissolution of corporation 570. 516

interested party disqualified n» 517

howtoquauify 517

powers of 51"

lunds in hands of, may be invested 517

In supplementary proceedings 545

RECORD of instruments affecting real property. . . S05

acknowledgment, etc., necessary to .105

affecting personal property 805

in what office 305

in what books SOS

duties of registers in relation to .. .41. 306, 306

affecting title to ships 306

acknowledgment- etc., before 306

See AckMjwledffment^ Proof.

effect of 309

of want of 309

of special partnership 401, 404

of real mortgage 432. 433

of assignment of mortgage .' 431

of discharge of mortgage 431. 4S2

of assignment for benefit of creditors 467, 468

of judgment 529

of assignment of 590

of discnarge of {iao

of justice's judgment 531

of homestead 163

proof of foreign 562

of instrument, when evidence. 562

of mortgage sale 580

of probate of will 610

of letters testamentary, etc 617

stealing or destroying public 714

offering false instrument for 714

injury to, by ministerial officer 716

of criminal action MO

of wife's separate personal property 230

of articles of incorporation 255

of mechanic's lien 5f«

RECRIMINATION defined 217

a cause for denial of di vorc;e 217

REDEMPTION from lien A2S

who has right of 429

how made 429

contract in restraint of, void 428

right of, may be foreclosed 429, 431. 4S3

See Lien, Mortgage.

from tax sales 117

from execution sale 5W

who has right of 588

time for.... : 540, 589

how made 540,539

effectof 539

waste, during time for. . . .^ 510

rents, etc., wno entitled to 5iO

from mortgage sale — ^ 588, 579

RE-ENTRY, right of, not transferable 300

REFEREES, appointment of 525

challenges to 5S>

trial of 536

report of 536

oath of 536

{>owers of , 536
n supplementary proceedings 544, 546

fees of. 547

may issue subpcena 5S7

in partition, cannot purchase 575

bribery of 710

Ikbbz.

937

Paob.
BEFEREES— Gontfnued.

improper attempts to Influence 711

disturbing proceedings of 720

See Reference.
REFERENCE to ascertain damages from injunc-
tion 510

to take account 525, 518

in general, when may be ordered 525

shall be to find facta 526

finding, has effect of special verdict 526

See Referee.

in supplementary proceedings 544, 546

to take affidavit, etc 565

in partition 572

in foreclosure 583

in mandamus 594

of claim against decedent 631

REGISTER IN (MIANCERY, may require fees in

advance 172

REGISTER OF DEEDS, when elected, term of

office 34

general duties of 40

to keep numerical index, etc 41

form of same 41, 42

compensation for 42

certain counties excepted 42

is ex officio county clerk 42

to record brands, etc 153

to keep estray register 156

report to grand jury 160

feesof 144,165,172

may require fees in advance 172

duties in recording instruments 40, 41, 3a5, :?06

iu filing chattel mortgages 434

See Qffleera, Countu Clerk.

REGISTRATION OF WARRANTS 205, 206

REHEARING in supreme court 480

RELEASE, obligation extinguished by 334

general, what not aifected by 334

of one joint debtor, does not discharge others. 3Si

of guardian by ward 226

of power to make leases 248

RELIEF in general 4.'V4

compensatory, the usual form 454

specific and preventive, limited to special

cases 454, 461

from forfeiture 454

compensatory 456

See DamayeB.

specific 461

how^ven 461

not given to enforce penalties, etc 461

to recover real property 461

to recover possession of personal property 462
See Specific Performance, RevUrlon^ Aescto-
eion^ Cancellation.

preventive 464

how given 461

not given to enforce penalties, etc 461

See Iniunetinn.

must be demanded in complaint . 497

against judgment by mistake, etc 677, 502

how limited by complaint 528

affirmative, to defendant 528

of persons imprisoned for debt 596, 888

RELIEF BOND ACT repealed 196

RELIGIOITS bodies, real estate of '204

corporations 280, 290

See Corporattona.

act preventing performance of 701

belief, compelling adoption of 701

meeting, disturbance of 701

REMAINDER defined 236

contingent upon prior remainder in fee 236

upon term of years 237

when may be created 236, 237

when must be for residue of term 237

when must take effect 286, 237

for life upon term of years 2^

upon a contingency 237

to heirs, what title vests under 237

REMEDIES in courts of justice, how divided 478

civU and criminal, not merged 478

civil, preserved 801

REMOVAli from territory, same as insolvencv,

when * . 423

of trustee, when and how made 887

See Executor., Administrator, Ouardian,
of officers, see Officers.

RENT under lease for life, how recovered 241

dependent on life, when recoyerable -. . . 241

remedies for, by assignees 240

payment of, to grantor by tenant 303

See Hiring, Real Property,

Pass.

REPEAL does not revive former act 476

effect upon penalties, etc., incurred 900, 476

general act of 898

effect on prior transactions 900

REPLEVIN. See aaim and DeUvery.

REPLY, in what case required 498

when and how made 498

court may require, when 499

demurrer to 499

judgment for want of 499

allegations of, deemed controverted, when 501

frivolous, judgment on 519

in proceedings against joint debtor 553

in justice's court 6T7

See Pleadingft.
RFPRIEVE fC^

RESCISSIONVcontract extinguished by" !!."!.!!! 344

may be made, when :{44

when stipulation against, does not defeat right

of 345

how effected :U'y

minor has right of 208

of novation may be made, when 333

third person cannot enforce contract after 336

of sale, for non-payment of price 349

for refusal of inspection ,'«1

for breach of warrantv :i'»i

for by-bidding at auction j{52

of ratification, when alloweii 389

of insurance, when allowed 406, 409

of alteration, effect upon guarantor 424

stoppage in transit, is not 440

judgment of, in what cases granted 463

Tor mere mistake, not granted, when 464

may be upon condition of compensation . . 464
See Revocation.

RESCUE of prisoner 712

retaking after 820

RESISTANCE lawful, when 733, '211, 807

See Seif Defense.
of officers, see Officers.
RESIGNATIONS. See Officers.

RESPONDENT, who is 549

may file transcript if appellant falls 5.^

except to appellant's sureties 552

RESPONDENTIA defined 4;»

owner may hypothecate by, in any case 438

master may hypothecate by. when 438

law of bottomry applicable to 438

obligatidn imposed upon ship owner by 438

See BoUiimrih Lien.

RESTITUTION of mine seized by fraud, etc 145

after judgment reversed 541, 550, 519, 495

REVENUE, auditor reports county assessments

to treasurer 12

reports lands becoming taxable 120, 12

prepares forms, etc., for assessments... 107, 12

when may remit tax penalties 12

. to correct errors in assessments 12

report railroads, etc., assessments to treas-
urer 12

proceedings against defaulting officers of 12

territorial treasurer assesses and collects cer-
tain taxes 14

proceeds of lot-sales to be building fund 33

special countv tax must be voted 124, 37, 36

to bo paia in money only 37

method of submitting to vote 37

money raised, to be a distinct fund 38

townships exempt from court ty road, etc., tax. 57

what property taxable 96

exempt from taxation 97, 96

taxable property enumerated 98, 97

county board proviaes assessor's blanks, etc . . 99

lists, what to contain 99

commissioner's may extend 100

assessment, when to berin lOO

property assessed at cash value 100

assessor to demand sworn statements 100

how to proceed, if refused 100

absent, etc.. owners, how assessed 300

lists to be signed and sworn to 100

oath by whom administered 100

form of 100

proceedings on refusal, etc., to list 101, 100

penalty 100

assessment roll, when delivered to clerk 101

property valued by assessor 101

assessor's oath to roll 101

sworn false list, perjury 762, 101

"credits." defined 101

who to list property 101

commifisiou merchants, what to list 102

938

Indbx.

Paos.

REVENUE— Continued. ^, ,^

personal property, where listed, etc 101, 102

in behalf of another, where 102

corporate property, how listed, etc Iw

pereons doing business in several counties — lOS

insurance companies, how taxed 108

depreciated bank notes, etc., how valued 103

credits and annuities 108

deductions from credits 108

who deemed a merchant 104

stock, how estimated 104

who deemed a manufacturer 104

stock, how estimated 104

when assessors deliver roll to clerk 104

what to contain, form 104

assessor's return, neglects, etc., to list 106

commissioners, board of equalization 106

when meet, and powers of 106

may correct errors 107

county clerk, clerk of board 107

clerk to make abstract of roll 107

contents of 107

transmitted to auditor 107

terri torial board of equalization 108

who constitute, meeting, duties 108

rates of territorial and county taxes 108

of county school tax 184

auditor reports rate of territorial tax to clerks. 108

commissioners levy county tax, when 108

when levy territorial tax. rate 109

county clerk makes tax list, contents 109

keeps same, delivers duplicate to treasurer 109

form, etc., of tax list and duplicate 110

(lommissioner's warrant attached 110

tax not illegal for informality 110

treasurer's duty in collection of taxes 110

various taxes, in what funds payable 110

treasurer makes duplicate tax receipts HI

form of same Ill

county clerk to examine, etc Ill

how numbered Ill

taxes paid, how noted on list 112

treasurer's cash book, how kept 112

receipts for funds other than taxes 112

form of treasurer's cash book 112

clerk keeps duplicate of same 113

errors, etc.. in tax list and roll 113

no demand of taxes necessary 113

when collected by distress, etc 113

when delinquent, interest : .113

penalty 113

Hen of taxes defined 113

collection by distress, etc 113

resisting treasurer in 114

tax received after time for 114

treasurer sells real estate for town, etc., tax — 114

notice of sale of real estate for tax 114

expense of advertising to be added 114

sale public, time and place of , . . 115

may by adjourned 115

what property to be offered 115

no taxable property exempt 115

regulations as to sale 115

proceeding if bidder fall to pay 115

treasurer's returns of sale 115

form of 116

purchaser entitled to certificate of sale 116

rights acquired by purchaser 116

form of certificate 116

treasurer's fee for deed, etc 117

when may sell at private sale 117

certificate of sale 117

redemption, when and by whom 117

of undivided interest 117

treasurer's duty In such case 117

treasurer's deed, when made 118

title vested by 118

how executed 118

of what conclusive evidence 118

of what prima facie 118

form of 118

limitation of action, to avoid 118

taxes, costs, etc., first to be paid 118

sale not invalid for irregularity 119

certificate canceled on delivering deed 119

proceeding if certificate lost 119

wrongful sales, county saves purchaser. 119

treasurer's liability for 119

judgment In actions to avoid taxes, etc 119

peddler's license, territorial 119

how obtained 119

peddling without, penalty 119

fines go to school fund 120

Paob.
REVENUE— OonttntMd.

refusing to exhibit license 120

county treasurer, how and when pays territo-
rial funds 120

penalty for failure VJH

treasurer's warrant book, form 130

issuing, etc., false tax receipt 121

fraudulent duplicate 121

dereliction by ofllcer of, forfeits pay 121

treasurer's duplicate receipts for all moneys. . . 122
interest paid on warrants, how noted, etc... .. . 122

warrants redeemed, how marked 122

when warrant exceeds tax 122

part payment of tax regulated 122

action against delinquent treasurer 122

county board may remove 122

may require additional bond 122

failure to jji ve. creates vacancy 123

treasurer not to discount warrants 128

when no credit for interest on same 12S

not to loan or use funds 128

when to pay over district, etc., funds 123

annual exhibit by clerk and treasurer IS

embezzlement, etc., of public funds 124

road taxes, how may be paid 195

how to be expended 136

road poll tax, who .subject to 138

tax to purchase poor farm, etc 151

for support of poor 152

certain fees, when pai(}, go to county 171, 165

obstructing collection of 761

8ee License^Townthip^ Fines.

REVERSAL of Judgment, limitation on 487

restitution on 495, 519, 541, 560

not adjudged for trivial errors, etc 503

REVIEW. See Appeal, Writ of Error.
REVISED CODES^ See Codes.

REVISION of contract, when allowed. . . . '. 46S

to be made on equitable principles 463

intention of parties to be fully considered in.. 46S

may be followed by specific enforcement 463

REVOCATION of power, when allowed. 245, 246

must be recorded SIO

grantor reserving power of, when deemed

owner 248

of gift in view of death, allowed 304

of other gifts not allowed 304

when grant by person having power of, ope-
rates as 310

of conjoint win 312

of will, how made 313

void, if not freely made 311

how proved 313

by obliteration, when complete S14

in duplicate 814

by suq/sequent will 314

does not revive prior will 814

by marriage, etc 314

contract for sale, not 814

charge or incumbrance not 314

transfer, when not 314

when is 815

revokes codicils 315

of proposal of contract, may be made when

and now 388

of trust, may be made when and how 387

of continuing guaranty, may be made when.. 423
SeelBeseisBfon.

right; civil, division of 207

may be waived, etc 207

arising out of obligation, transferable 328

not to oe Injuriously used 472

of entry, limitation of action after 48S

RIGHT OF WAY. See Way.

RIOTdeftned ^...757

punishment of 737

refusineald in quelling 811, 738

remaining present at •. 756

suppression of 810, 811

involuntary deposit in case of 3S8

ROAD CORPORATION 278,280

See Corporation.
ROAD SUPERVISORS, commissioners appoint... 135

fill vacancies In ofilce of jS^

duty of 185

to order out persons subject to road labor 136

certificate of, received for road tax 18S

to remove obstructions in highways 136

report to commissioners 186

compensation of 137, 196

refusal to serve by, penalty 137

See Ogieers.
ROADS. See Highioau^

Iimxz.

939

ROBBERY defined 7S1

two degrees 731

in first degree, punishment of 7S1

in second degree, punishment of 731

by two or more, punishment of 731

local jurisdiction of ; 815

ROUT defined 758

Euni£hment of 758
eing present at 758

SABBATH-BREAKING, definition of 699

what time is included 700

persons obserrinK other day than Sunday 700

what traffic prohibited 700

£uniBhment of 700
OR may make nuncupative will, when 312

SALE defined 348

subject of, what must be 348

agreement for, defined 348

to sell 348

to buy 348

to sell and buy 848

what may be subject of 348

. of real property, efTect of 348

contract of, when must be in writing 848, 349

of real property, form of 349

rights and obligations of seller under, defined. 349

as to payment of price 349

as to delivery 349, 350

See Delivery.

as to warranty 360, 351

See Warranty.
rights and obligations of buyer under, defined 851

as to payment of price 851

as to inspection of goods 351

effect of breach of warranty upon 351

by auction, defined 352

when complete 352

when bid at, may be withdrawn 352

written conditions of, not to be modified.. . 852

when absolute 352

by-bidding at, a fraud 352

auctioneer's memorandum of, binding 352

title passes by, when 304

buyer's title by, better than seller's, when 304

of thing found, for expenses, how made 357

of property, under lien, effect of 429

under mortgage foreclosure 433

of pledge 436

not rescinded by stoppage in transit 440

damages for breach of contract of 457

specific enforcement of 46i2, 463

under execution 536

of real party in partition 574

under mortgage foreclosure 6«2, 579

of property of decedents 633, 642

for taxes, see Revenue-

by guardians 665, 667

of intoxicating liquor, see Intoxicaling Liquor.

SALVAGE, who entitled to 872

priority of lien for 373, 438

SATISFACTION, what operates as 333

of debt by part payment, when 383

of mortgage 481, 432

of part of claim admitted to be due 517

of Judgment 630

SCHOOL DISTRICT, formation of 176

from parts of more than one county 176

when deemed organized 179

style and corporate powers of 179

meetings annual 180

special 180

in new district 177

powers of voters at 178, 180

qualification of voter at 179

cnallenging vote at 179

ofllcers of, enumerated 179

refusing to serve 179, 186

compensation of 186

for what term chosen 179

director, duties of 180

clerk, duties of 181

pro tem appointed, when 181

to give notice of meetings 181, 180

to draw orders on treasurer 181

to notify county clerk of district levy 181

report to coun^- superintendent bv 181

punishment for false 185

refusins: to deliver books to successor 186

teachers report to 186

assessor to report valuation to 187

treasurer, bond of ... .' 182

ofiice of, deemed vacant, when 182

school moneys to be paid over to 176, 182

ft

Paos.

SCHOOL DISTRICT— OonMfiiied.

paid out by, on orders 183

refusins to pay over to successor 183

responsible for money lost by neglect 183

annual report of 183

refusing to deliver books, etc., to successor 186

board, powers and duties of 183

haa care of school house, library, etc 183

may admit scholars from other districts ... 183

may remove scholars for bad conduct 183

may send scholars- to other districts 183

to equip school house 184

hiring teachers by 184

may refund district tax, when 185

vacancv in, how filled ^ 184

property of. exempt from taxation 96

revenue for support of schools in 184, 185

donations to * 186

actions by and against 186

Judgments u^ainst. 186

See FviAic SchoolB, Superintendent of Publie
Instruction, County Superintendent of
iScTiooIs.

SCIRE FACIAS, action in place of 568

SEAL of the territory 7

of commissioners of deeds 22

of notaries public 24

of county 34

• corporation may have 256

not necessary to srant of real estate 301

corporate or official, how may be afilxed. . .341, 475
instruments under, same as others 341

SEAMAN defined 370

how engaged 371

when may be discharged 371

not bound to sail in unseaworthy vessel 371

can not forfeit wages or lien by agreement — 371

restrictions upon contracts with 371

wages of, when begin 371

depend on freightage, when 371

when not 371

where voyage broken up 871

when wrongfully discharged, etc 371

when prevented from rendering service ... 371
when personal representatives entitled to. 372

when forfeited 3?2

must be provided for in sickness 371

may not ship goods on own account 372

liability of, for injuries to ship 372

lien of 439

SEARCH-WARRANT, using undue severity. ..878, 717

maliciottsly procuring 878, 72:J

general provisions 875, 878

SEAT OF GOVERNMENT of terrltorj' 1

SECOND OFFENSES 798

SECRETARY OF TERRITORY, records of legisla-
ture deposited with 3

to procure printing of statutes 4

to correct, arrange and distribute 900, 4

to supply lost volumes to counties 6

to sen statutes for benefit of territory 6

to place volumes In territorial library 6

has care and custody of library 15

to prepare election blanks, etc 96

to endorse election returns on receipt 96

is territorial canvasser 93

*to send messeiiger for returns, when 93

oflicials bonds filed with 8

to record articles of incorporation 255

SECURITY on order for arrest ri04

on injunction 510

for restitution on reversal of judgment 519

by guardian 489

for costs 548

See Undertakino-

on action in name of territory 569

to keep the peace 809, 808

indorser liaving, not entitled to notice of dis-
honor 446

by assignee, for benefit of creditors 468. 469

held by creditor, surety to have benefit of 425

held by surety, creditor to have benefit of 426

by way of lien, see Lien, Mortgage, Pledae, etc

SEDUCTION, right of protection from 211

damages for 439

costs m action for, limited .546

for purpose of prostitution 736

place of trial 814

evidence necessary 848

under promise of marriage 737

marriage a defense 737

evidence necessary 848

SELF-DEFENSE, right of 807, 733, 734, 211

%

\

,^v

940

Inbbx

SEPARATE estate of married woman.. . . .S32, 528, 220

defenses 496

trial 848,620

judgment 528

SERVANT, abduction, etc., of, forbidden 211

Iniuryto, forbidden 211

relations of master and 226

not to be restricted as to carrying on business. 228

defined 368

term of hiring of 368

time of, how far belongs to master. .' 368

must deliver property without demand 368

may be dLscharged, when 368

SERVICE, witl\ employment 364

See EmptoymenU Servant.

without employment 372

personal, for over two years, required when. . . 365

contract for, not specincally enforced 462

of papers generally 565

summons, how made .' 494

by whom 494

by publication, in what cases 571, 494

how made 495

when complete 496

out of territory 495

appearance equivalent to 497

proof of 496

complaint 493

amended complaint 497

demurrer 497

answer •. 497

notice of appeal 550

order of arrest 504

subpoona 868, 557

writ of certiorari 592

mandamus 604

process of probate court 606

citation 657

justice's court summons 675

warrant of arrest, criminal 817, 690

bench warrant a'W, 829, 835

criminal summons against corporation — 871

writ of habeas corpus 892

SERVITUDES, when called easements 288

when may be held apart from land 238

by whom grantable 239

may be held 239

extent of, how determined 239

do not bar suit for land by owner 289

how extinguished 239

See Eaeement.

SHAM answers and defenses, stricken out 498

SHERIFF of subdivision 567, 19

may administer oaths 81

duty of, as to sale of county seat lots 33

w^hen elected 34

general duties of 43

office of. at county seat 43

election duties 95; 88, 43

when coroner acts as 43

to make list of militia 138, 137

fees of 165

may be required in advance 172

when liable as bail, etc 508, 507

duties of, on arrest in civil case 501^, 507

in ('.laim and delivery' 508, 509

in attachment 511, •515

as to execution 533, 543

in service of papers generally 567

cannot bid at execution sale 537

deed of 541

may require i)rinter's fees in advance 540

amercement of, for neglects, etc 542

may command assistance, when 810

duties in preserving the peace 810, 811

l^MJwers and duties in making arrests 819, 820

in executing sentence of imprisonment... 8C1

in conveying convicts to prison 891, 861

in executing judgment of death 861, 8(>3

in relation to c(mnty jail 881, 890

in drawing and summoning jurors 29, 30

settlement by, with county board 39

Sec Offlcers.

SHIP deiined : 370,251

appurtenances of 251

foreign, defined 251

domestic, defined 251

rigiits of part owners ... 251

who responsible for supplies of 251

registry, enrollment, ana license of 251

navigation of, rules for 251

collisions between ship and 252

transfer of, must be in writing 303

Paos.
SHIP— Oontifuied.

how recorded 306

charter party of, defined 361

master of. see ShipmaaUr.
seaman on, see Seaman.
manager of, see Ship^B Manager.

stowage on deck of, not allowed 375

See Ax}erage, Bill of Lading, Carrier, Inanranee.
sacrifice may be made for safety of 377

must be borne ratably 377

how valued on general average 377

master may hypothecate, when 437, SSS

may sell, wnen 393

may ransom, when 394

part owners of, not partners 395

mortgage of, how recorded 435

hypothecation of, by mortgage, see Mortgage.

by bottomry, see Botttmury.
owner of, must pay owner of cargo, amount

paid under respondentia 438

liens on 438

See Vessel.

SHIPMASTER, how appointed ^. 330

must be on board, when 370

must take a pilot, when 379

power of, over seamen « 370

over passengers 370

to impress private stores 370

must not abandon ship without advice 370

duties o/, on abandoning ship 370

must not trade on his own account, when 370

care and diligence required of 370

general agent for ship owner 398

for owners of cargo 3©

authority of, to borrow on credit of ship owner 39S

on behalf of owner of cargo 393

to transact business of ship

to sell ship 398

to sell cargo »4

to ransom ship 394

ceases, when 394

to hypothecate ship 39S, 437

freightage 393,437

cargo 398,438

See Bottomry^ Respondentia.

persoually liable, when 394

liabiUty of, for persons employed on ship 391

for acts of pilot 394

Itenof 439

SHIP'S MANAGER defined 372

duties of 372

compensation of 372

authority of. as agent 394

See Agent, Employe.

SIGNAL light, masking or removing 792

SISTER, right of protection from seduction of. . . 211

takes by succession, when o32

right of, to letters of administration 615^ 617

SLANDER, definition of 210

See Privileged Publications.

pleading in action for 500

costs in action for, limited 546

limitation of action for 485

SLUNG SHOT, making, keeping, carrying, etc. .. 755

SOCIETIES, incorporation of 293

SODOMY. See Ohme Against Nature.

SOLDIER may make nuncupative will, when. 312

SPECIAL PROCEEDING defined 478

court always open for hearing of 481

parties to, now designated 591

Judgment in, defined S91

motion in, defined 591

order in, defined 591

See Certiorari, Mandamwt^ Prohibition^ Con-
fession of Judgment, Svbmisskm of Contro-
versy^ ete.

provisions applicable to 695

new trials and appeals in 995

specific: PERFORmIvNCE of obligations, may

be compelled when 4fi2

not enforced unless mutual 46^

presumption in favor of, as to real property. . . 462

against as to personal property 462

may be enforced in favor of party not bound,

when 462

may be enforced notwithstanding penalty in

contract 462

of what obligation'^, not enforced 462

when not enforced against a party 462

in favor of a party 463

of agreement to buy, when title doubtful 463

affainst one claiming under party, bound. 46S

of trust power may be compellea 349

L

wm

mini iTiwa

Indsx.

941

Paob.
SPECIFIC PERFORMAN'CE— ContintKd.

may be enforced after revision 463

judf^ent for, how enforced 631

when ordered by probate court 644

SQUATTING on lands 759

STATUTES, secretary to procure printing of 4

correct errors in 4

to distribute 4. •">

requinition for, by county clerks .^

officers to deliver to Huccewwrs '>

failure, punished fi

lost volumes, how supplied : ... 0

secretary to sell 6

volumes, for territorial library ^ 6

appropriation to publish ]9o

foreif?n, how proved ri62

private, how pleaded 8:«, nOO

action upon, limitation of 486, 4R.'>

constitutionality of. decision involving 4H0

oblif^ation entered into, under authority of 209

aci by authority of, not a nuisance 470

no injunction to siuy execution of 4fi.'>

STAY of execution, on appeal ;V)1, .v)2

from probate court 661, tViO

from justice's court 687, Cjbs

of proceedings, eftect on limit4ition 487

order for. how made .'»6.'>

in certiorari ,, .">92

of trial, reapplicatiou for. without leave 730

STEAMBOAT, liability of persons in charge of 74«. 727

explosions, etc 748

See 8/iip.

STEAM ENGINE, explosion, etc., of 748, 727

.STOLEN GOODS. recei\ing 773

local Juri.sdietion of 81.')

disposal of, bv officers 872

STOPPAGE IN TRANSIT, wh(. mav exercise right

of .* .440

when may Ikj exercised 440

how effected 440

does not rescind sale 440

STORAGE. See I>fpo«rtt.

STRIKES. See Intimidating.

ST 'KDI VISION of judicial districts 18, 20

SUBMISSION of controversv without action 396

SUBORNATION OF PERJORY defined 715

punishment of 7ir>

indictment for SSrl

SI'BPCENA, who may issue 8(>7, 692, .V)7

service of .V>7

requisites of .'io7

disobedience of 868, jV>7

defined 867

forms of 868

service of 868

SUBSTITUTION of party on transfer of interest..

by interpleader

SUUCES.i^ION deflnt'd

both real and personal property pass by

to whom property passes by

distribution of property subject to

Illegitimate child to take by, when

mother of illegitimate child to take by

by children of divorced parents 215, 217,

r*omputation of degrees of kindred

relatives of half blooil, when take by

exclusion from, by advancement .T23,

by representation
Aiient

IS may take by »

alienage of relatives does not ])r<.T'Iude from . .
territory takes by, when

subject to charges

liability of heirs for debts of decedent.

to partnership property

posthumous ch ild may take by

oftnistees .' '.

change of interest by, does not avoid insurance
See Dower, Courtagy.

SUICIDE defined

no forfeiture for

attempting, defined

punishment of

aiding, defined

punishment of

incapacity of suicide no defense

proof required

attempt at, defined

punishment of

SUMMAR\ proceedings 5Q.\

punishment of contempt

conviction for profane swearing

arrest for disturbance at election

committal for perjury

63

490

491

;J21

.Til

:«i

.•J22

32:1

324
3-34
324
:124
:124
324

im
im
:m

.'»7
406

724
71i
724
?2.i
724
725
724

72r,

724
725
.598
685
699
704
715

Paos.

SUMMONS, action commenced by service of 492

requisites of 492

for money 493

for relief 493

when complaint not served 493

in cajte of no personal claim 493

service of .571,494

See Service.

proof of 496

against joint debtor, not sorvetl 5.53

in partition 571

in bastardy proceedings 599

filing of 566

in ju.stice's court 675

action (!ommenced by issuing 675

against corporation on presentment 871

SUPERINTENDENT OF COINTY AS Y LCM, See

SUPERINTENDENT OF PUBLIC IN.^TRrCTlON.

appointment and term of « 173

vacancy in office of, how filled 173

qualification by 173

general powers and duties of 174

mav appoint a deputy 174

shall hold annual institute 175

compensation of 174

See Public Ldtwatitm.
SUPERVISORS. See Townships, Rtmd Supeiviti'
org.

SUPPLEMENTARY PROCEKDINGS .513

receiver in 54.'i. 516

SUPREME COURT, terms of, and where held, «*0. 15

as.sl^nnicnt of justices of 16

justices of, may hold court in any district 16

when required to. in other districts 16

jurisdiction of 479

original 479

appellate 479

power of, on appeal 550, 480

may make niles of practi<*e 480

two judges of. must concur in judgment 480

adjournment of 481

calendar of 480

settlement of exceptions by 526

appeals to .5.>0

writ of error to 86:J, 866, 807. 55:i

judge or clerk of, may issue subpnena 557

may administer oaths ;;i

may take acknowledgments, etc 306

deposition 559

judges of, are magistrates 816

may issue writ of habeas con>tis 897, 892

SURETY defined 424

apparent princiual may show that be is 424

llabllltyof 424

cannot exceed terms of contract 424

not altered by j iidgment 425

discharged by ofl'er to perform principal

obligation 425

interpretation of contract of 425

how exonerated 125

rights of 43-5

same as guarantors 4:

to compel creditor to sue

425

principal to perform 425

to repay nim 42.^i

co-sureties to contribute 425

to enforce creditor's remedies against prin-
cipal 42.'»

to benefit of securltic's held by creditxjr or

co-surety .' 425

to have principal's property taken first.. 541, 425

rights of creditor against 426

to benefit of securities held by 426

release of principal releases .' 3;54. 42:J

indemnitor, how far entitled to rights of 421

Indonser for accommo<lation has rights of 443

for costs, liability of ^19

See GuaraivLy, Letter of Credit.

judgment and execution agaln.«st .541

to undertakings, exception to.688, 5.52, 5ft'>, ,508, 515

justification of 688. .5:'j2, 508, ."jOe, 515

to executor's or administrator's bond 618

release of 619

to guardian's bond, limitation of action against 671

SURPRISE, contract made bv, not specifically en-
forced ' 46.'^

See MiaUske.

cause for new trial ; 527

SURVEYOR, see County Surveyor,

SURVEYS, rules for 47. 48

TAX. 8m Revenue.

TAX SALES. See Aevenue.

942

iNtoiX.

Faob.

TBLBGBAPH, nullclons Injury to 788

dUcloelDff dispatch 79i

sappresstDg dispatch 7^

TBN ANT at will, how required to qait 887

may repair at expense of landlord, when 862

continued posiesslon of, renews lease, when. . . 86S
mast notify ]analord of adverse proceeding . . . 868

of part of room, entitled to the whole 868

released from rent by letting of rooms in parts. 868

holding over, damages against 499

possession of, deemed landlord's 484

may be Joined with landlord as defendant 489

not affected by Judgment in partition, when 678

waste by 686

attornment by, to stranger void 868

See Birino-, Lecue.

TENDER. See Off tr of Performance*

TERRITORIAL AUDITOK. See AwiiUxr.

TERRITORIAL BOARD OF EQUALIZATION... 108

TERRITORIAL LIBRARY. See lAtyrary.

TERRITORIAL PRISON 890, 898

escapes Arom 718,713

commanlcation with convict in 783

TERRITORIAL SEAL 7

TERRITORIAL T.\XES. See i?eventie.

TERRITORIAL TREASURER appointment and

term of office 18

charge and payment of pnbllc fUnda 18

account with territory 18

with each county 18

how receive and redeem warrants 18

Indorse warrants not paid intereet on 14

return redeemed warrants to auditor 14

biennial report to governor 14

inspection of his accounts, etc 14

must not discount warrants 14

to assess and collect certain taxes 14

responsibilities for delinQuencies 14

one of board of equalization 108

ealanr, etc 164

See Keventt«, Officers.

TERRITORY, what propertv owned by 280

what newly formed land belongs to 297

grant by, of land adversely held, valid 811

propertv of intestate passes to, when 822, 824

subject to what charge^, etc 324

when will not sue for real property 483

limiution of actions by 486

costs against 648

actions in name of 668

to recover property forfeited to 670

Jurisdiction of, over crimes 696

criminal actions prosecuted In name of 806

removal of, on behalf of 840

TESTAMENT. See WOL

TESTIMONY of witnesses, modes of taking 660

perpetuation of 664

See Witneif9. EvUience.

THING IN ACTION defined 250

transfer of, etc 2S0

suit by assignee of, subject to set off 488

liable to execution, etc 512,688

buying for purpose of suing 719

TICKET, to passenger, effect of 879

See Paasaoe Tick4:t9.

TIMBER, damaees for injuries to 450

exemption from taxation by planting 97

along highways 132

malicious injuries to 790, 791

See Loga and Lumtter.

TIME, not of essence unless so expressed . . . .381, 843

lapse of, when proposal revoked by 338

void act not confirmed by 472

fractions of day disregarded in computing 475

how computed 477

of commencing civil actions 482

criminal actions 816

for service of complaint 493

to answer or demur. 497

to reply 498

to amend 608

to give notice of trial 620

to take appeal 659, 560

to sue out writ of error 864

to notice motion 666

double, where service is by mail 566

enlargement of 565, 502

for service of citAiion 657

TITLE 10 property, how acquired 296

what veets under transfer 801

to personal property passes by sale, when 804

when buyer's better than seller's 804

'o when passes under specific devise or legacy 880

TITLE— Contintied

to personal property, w&rrftniy of, when iMpUed 860

does not pass by loan for use 856

passes by loan lor exchange 868

cannot pass bv lien 488

seller aemanaing apeclilc performance must

give clear 468

ofcaasein complaint 49?

under execution sale, what vesta 541, 938

how affected by reversal 496,541

of action on appeal 864, 549

of affidavit 872,567

evidence or answer of, in Justice's court 674

buying or selling pretended 719

of action in indictment 831

TITLE DEEDS, by whom owned 2K

^ production of, may be compelled 605
L HOUSE, malicious injury to 79i

TOWN AND CITY PLATS 84, .84

TOWN. See Incorporation ojT, etc.

TOWNSHIP, civil 51

organization, how adopted 51

what laws do not apply to county having SI

division of county into 51

how named 51, 38

present, remain 8

corporate powers of S

acts and proceedings by and agidnst St

conveyance for benefit of 52

powers of electors of 53

meetings 63, 5*

election of officers of. 54, 55

qualification by officers of 55

board of supervisors of, powers 56, 57

police power of 56, ST

exempt from county road or bridge tax 57

auditing board of 57, 58

board o? health 58, 59

clerk, duties of 56, «

treasurer 60, 61

officers, compensation of 61

acting before qualifying 56

pound master, duties aad lees of 62

actions by ana against 0

guide posts In 6S

pounds, in whose care M

charges, enumerated 04

taxes, how levied 84

officers to deliver books, etc., to successors.. 64, 65

each, an election precinct 65

debts of, limited 65

cities not included 65

forms for 66, 70

TOWN SITES 88, 84

TRADE, contract in restraint of, how fkr allowed.. 844

TRADE-MARKS, definition of 780

subjects of ownership

what may be appropriated as.

implied warranty of 851

counterfeiting 74J

keeping dies, etc., to counterfeit 749

fraudulently using genaine • 74S

colorable imitations of 749

affixing, defined 750

refllline or keeping stamped bottles 730

search Tor stamped bottles 750

TRANSFER defined 899

subject to law of contracts 299

what may be subject of 800, W

mode of 300

when must be in writing 800

effect of 301

to vest title in transferee 391

upon Incidents of thing transferred 430, 801

in favor of stranger 301

of real property -. VH

See Orant.

effect of W

upon tenant^s rights 80S

when passes title to highway 809

of personal property SOS

when must be in writing 80S

by sale, etc 301

when title passes under 804

to purchaser in good Caith 3M

by gift, defined 30(

See Gift.

recording 305

See Recording.

unlawful and fraudulent 810

intended to defraud purchasers, etc., void.. 810

when not void 310

exception in Ikvor of purchaser under 811

TBAHBFBB- Crmtinued.

at Isnd BdTsnsIr pO(-

when cradlInr<»D (void ..
I of. Implied ..

obllpillon
ol rifchl iiUIng ont ol

effect Dt 338

eel or, npon iDSDcanca..
morlgiKe or pl«die

papars oa cWie of venue 090. S74. 49!

TRANSIT, cloppagefti. *40

TRAVELINH onSnndsy TOO

TKKASOK. patil ■bDllshed -. 7%

TRSAttUREB. &ta County TnaaiTBr. Territorial
Triatura; lovmthip. School Dtotrlct.

TBIAL, Ik Civil AcnoM. daflned 619

■ pl«ce of. 401

BM Befertt*. Befererux-

it be preaent M. when . . .

Inrj decidat tacts Bf7

niKj determine 1&W. when 84T

■rjinmeiit of coanaal UB 847

may be a asp ended. »ben MR

Jur

w by Jnr

le wltne

I OD, whan...

cnetodT und conduct arjurr daring

jarorslck before conclae Ion of

chwga of court npon

dltpoaillon of defendant daring

mnBtbaapaod)' »nd pDhllc

uilnat ucaeaorr beibre nut

Bea EtMenet, Trial Jury, liuUctmait.

BetJitrom.

^allebgai to

□ty of court In chnrglng-. .

hirihei InitrDOtloDs to. on dlugreement. . .
naaberot. bacomlngBlcJi bafbreTiidlct. .

TRIAL JDRT-Con(ln««d.

■dJonrnmaDt dorine retlrBment of. a

flnal. dlachiriiea ES

verdict of. see Vtrdict.

mlacondiict by, canae for new trial BS

In CBixtNM. Action, deSued 64

fornislloD of W

Challcugea to M

See Clutilengt.

decide qneeuone of ftet U

of lav. and fact, when S4

nnil receive 1H« from cunrt B4

tnay And ganaral vardlct Id nil CMaa — 84T. K

conrt may advlaa. Ui acqnit .M

eannol prevent verdict by Bf

kDOwledga of faci In laene by member of K

asparalioD of. during trial 8E

caalody and condncl of. dnrlng trial BE

member of. alck daring trial. K

may decide In court, or retire! '. .'.'.'..'.'.'.'. 8!

conductor, after canae anbmltud, , StS, M

what must be provided for. 6:

may Uke what papers on retiring SE

member of, ilck after rellnmaut SS

diacharga of. before canae aubmltlad »4B. »

after retirement, wlthont verdict .8K. SE

action retired after, when ..BM. 84

adjouri.ment during tellremenl of BE

llnal dlacbaraee .. ■ ,. BE

verdict of. how riven 89

See FenltcC.

mnatDnd degree or crime 696. BE

mlBcondact of, ground Ibmew trial Ho

Set Trial.

IM Jnanoi Codbt 681, St

TRUST, volnaury. denned.. 38

Involuntary, defined , X

partlea to, defined 38

who deemed Iruatee 88

far what pnrpoae may be created 8B

TOlnntsry. how created, attotrnator.. 38

involnntary, how created 38

oblleaHona of tiuatee under 38

See Tnirtte.

obU|!>tlon of third paraona In reapecC to 38

for benefit of third p«i*on«, defined 38

how created SB

when coart. etc, imatotln 38

bow declared 38

troataa. under obllgatlona of 38

powereof. S8

rightaof. 38

BDCceetloD of new 38

Unnloation of. 88

bow extlbgulabed 88

when Mvocable 38

bow tranaferable SO

pew err In. lee Pmotn.

Eower of eala under mortgaee. la a 43
reach of. may be prevenied by Injunction 48

See Bencfldari/, iWutee. TruaMin Real Prop-
IE defined 38

WBO la deemed 88

traat. how created aa to 38

InTOlnntarr. wrongful holder of thing 38

frandulent, eto.. gainer of thing 88

obllgatlona of 38

mnalact In the bent of f 1th 38

may not take advantage of beneficiary 38

naa cruat property for any but trnat pnrpoa-

ee 88

take part In traDaacIloD In wblch be baa

advene Interest 88

except by apaclal permliiilaii 38

nae Infiaeoce to obtain advanuce from ben-
eficiary 38

onderuSe advar-e trnat 88

acquiring adverae laureat, moat Infurm ben-

eflclary 38

mav be removed 38

gnlhj or fraud, when 39

advantage obl^ned by. pnaomed to be fraudu-
lent 88

mlilng trnat ftind with hia own. bow liable.... 38

mlaiuing trnat fond, how liable 38

rMpoDuble tor acta of co-IrOBtee, when 38

944

Index.

TRUSTEE— Con«?iueri.

when person acqairlni; trust property becomes 384

payment to, when sufficient 384

assent of trustor and, creates trust 385

appointed by court, etc., who Is trustor of 385

must fulfill purpose of trust 385

must obey declaration of trut»t 386

must use ordinary care and diligence 386

must procure trustworthy successor upon dis-
charge 386

mast invest trust ftind, how 386

must pay interest, when 886

cannot enforce certain claims against trust

fund 386

.powers of 886

general agent for trust property 386

authority of 886

cannot act without co-trustee 886

discretionary power of, how controlled 386

rights of 886

to compensation for expenses 886

for services 886

under involuntary trust 886

office of, how vacated 887

how discharged 387

how removable 387

appointment of new 387

survivorship of 387

trust without, how executed 887

See Tnju<t» in Real Property, Pincers, Corpora-
tUm.

partner is 806

iuBOrance by, how made 406

See Trugt.

of express trust, who is 488

may sue wirhout joining beneficiary 488

Joinder of claims against 501

costs against, how collected 548

TRUSTOR defined :«2

trust, how created as to 383

declaration of trust by, defined 38.')

must be obeyed 385

cannot revoke trust, when 387

TRUST IX REAL PROPERTY, limited to those

specified

when legal estates

for simple use of another, void

trustee under, must release

by operation of law. not affected

how must be created

resulting, when presumed

not to prejudice purchasers, etc

express, for what purposes allowed

when deemed only a power

when liable to creditors

when no estate vests under

vest whole estate in trustees

power of author of, over land

estate of devisee, etc., subject to

estate left in author of

power over, of beneficiaries

when void against creditors, etc

when acts in breach of, void

when to cease

UNDERTAKING, on order of arrest

of ball

SeeBati.

for delivery of persenal property

on ii\junctlon

in attachment 678, 515, 514,

of receiver

on appeal must be served

must be filed

of no effect, when

for costs, etc

to stay execution 551,

disposition of

See Security.

on appeal Arom justice

to keep the peace 808,

action on, in jnstlce^t court, when

UNDUE INFLUENCE defined

will procured by, may be denied probate

contract procured by, voidable 346,

thing gained by, held in trust

UNLAWFUL ASSEMBLY, definition of

being present at

punishment of

USAGE deflned

meaning of words fixed by, to be followed

of what place to govern interpretation

wbfttis necessary to conform contract to, im-

• piled

S42
242
242
242
242
'M;i
248
243
213
243
248
24!)
244
244
244
244
241
241
244
244

504
505

506
510
211
517
551
552
552
550
552
567

687
809
673
387
311
886
883
758
758
768
474
842
342

348

Pa»b.
USAGE— Corttinufd.

incidents necessary by, implied 343

employe must conform to usage aS6

acent may delegate authority when according to 38S

mining, when govern decision 585

USES AND TRUSTS. See Tni»U in Real Prop-
erty.

USURPATION of office, action for SeB

is a misdemeanor '706

USURY, taking, is a misdemeanor 751

See Interest .
VACANCIES in oiflce. See Oilers.

VARIANCE, when material sai

when deemed a failure of proof 5(fi

VENDOR. See Sate.
VENUE. See Place of Trial.

VERDICT defined 4i-5

In Civil Action, death of party after . . .631, 490, 50

may be given in court or after retirement SS

if prevented, action to be retried 923

must be in writing SS

how to be given sa

when complete SB

jury to be polled on receiving, when 5Q

sealed, court may order 83

insuflicient or Informal, corrected 59

general, deflned SB

special, deflned 323

court may require, when SS4

must be filed, etc SM

controls general verdict , 584

assessment of damage, etc., with SM

entry of SM

causes for vacating SC, 9SS

See New TYiai^ Tnal Jury.

in replevin 594

where plaintiff's right ceases pending action.. . a64
in case of counter-claim for improvements... . 584

Im Cbininal Action, must be unanimous 842

may be given in court or after retirement . . 8S1

if prevented, action retried, when 892

court cannot prevent jury giving 930

rendering, manner of S5S

in absence of defendant, when 813

jury may be polled on 855

general, forms or 8B8

jury may find, in all cases 847, 863

special, deflned 8SS

jury may find, when 8SS

requisites of . : 853, 851

form of 854

argument of 854

judgment upon 854

if Insuflicient, new trial ordered 854

disposition of defendant on 856

of conviction, must flnd degree of crime 854

for offense Included In tliat charged 854

jury required to reconsider, when 854

disposition of defendant on — , 865

informal, proceedings on 854

entry of , 8B5

Is complete, when 855

of acquittal, on ground of insanity 851

jury not required to reconsider 855

judgment of conviction on. when 854, 8S5

of acquittal, when 854, 856

in jnstioe^s court ©1

See Trial Jury, Neio Triai.
VERIFICATION of pleadings 499, B5S

VESSEL deflned 800

overloading 787, 7^

ftrandulent aestruction. etc., of — 7<8

offenses on board of. where tried 814

See Ship.

VOTER. See Electi4m.

WAIVER, of private rights, allowed 207, 47i

of objections to offer of performance 30

of performance excnses it, when 832

of option, as to delivery of goods sold 850

of objections to proof of insurance loss 411

of demand, before sale of pledge 48S

of notice of dishonor 446

of presentment, waives notice of dishonor 447

of notice, does not vi^ive presentment 447

of protest, effect of 447

of certain provisions of code, allowed 458

of change of venue 4Xt

of objections to complaint 498

of objections te sureties or bail 505, SOS

of jurv trial in civil action 681, 584

of findings of fl&ct by the court iB5

of witnesses, privilege 96S

of lien in partition S71

945

of notice, •ppeinDC* U

or objection ■ lo Indictment .....' 8i

•r Inteceat. by acceptlDff prlnelpBl

of excspUanl

WAUON EOAD CORPOHATJONS, road o

OCCDpHtiDU Of hii^wiyB bf...
peaoUj tot In] or!

w«ppiied. en

tolls by, how rBBDlaled im, STB

-Mltytor "~

dividsDdi bj

hypothecmtloD ot romd, a
Krtlcle ippllei to nstarsl
Sea COruoratiimt.
WARD, Kiurdlui and

•ettlament betwsea gniudlau and ...

See Gvardian.
WAREHOUSEUAN. Bea DevosiUiry.
WARRANT of sUicbmaut

{■■aed by nia^atnta. wb
form ■Dd reqaliliei of. . .

WARRAtiTIEsi liiietl i

WARRANTS, regldntlon of KR, SM

territorial, luaad by auditor !. 11

frkctloiul . .

credit of lerritoiy pledgsd f<

pkyeblefroni trexnrj

rscelrible for pahllc daei

ceiTftbli I

ITY defli

not Implied I

Implied u Id

of Eoode ._

of proTleloi

where buyer re'

upon Beller'e jQdg-

u Id olhiiT marka on goodi.

on lale of obllutloD SSI

oujadfclii —I"
-El, how llml

collab

, ahollihei
Ithland..

. , 467

la I

II for breach of . , . . 4D8

WASTB after eieentlon Ml* 540

a POD mortgage premise) — SSR

action for S86

by eiecntora, ere (122.943

WE|{IHT(i and meaearea Ifli, im

„ See False WeK/hU.

WIDOW Utoi by soccesalon, when 3S1

right

allotmi

copy hi

WIPE, contract U procure act of. Dot ipeclflcally

enforced 4«a

See HiulKiiHl and WUt, Marriea Woman.

committing crime nndcr fnbjection 6ST

kllllDg of Snaband b; Ttt

'VV^aXt^ (^VJj^ dt.-l^'-i J.^^i

WILLFUL DBSBRTION deHaed *"«

iBftCailie rordlTOree 31S

WILLFUL NEOLECTdelned... 318

iBicaoe for divorce

WILL, eiecullon and n

procnrad by fraod. etc., may be denied probate sil'
rCTocatloii of, obtained by tnai. etc., may be

annulled 311

wbatmay be dlepoecd of bT 311

In whoaefiivormaybemadB 311

DoncnpatlTe, by whom ma* be made BIS

howmade SIS

probate of Sia

coiiJolDt or mntnal SU

olographic 813

probate of. l»9

maybe coDdltlonal SI3

bow to be eiecitad and attested 313

wllneaa to, maetatate realdence 313

person who labieribei fat Leitator maat be wit-
new to 313

effect of codicil upon 311

made with oni territory when yalld 313

pmbateof SID

void, if notdnljeiecated 3ia

change of domfclJe doea not aSecC SIS

may be depoalled with probate Judge 813

dcpoelled. to wbom dellTorable 313

by whom and when to be opened 313

loBl or dealroyed, may be eetabllsbeo 811, 313

revocation of, how made 313

by obllleralion.V.'. ■.■.■.■.■.'.'.'..**".*.*.".'.'','.'.".'.;! 314
Id dflpUcaU 314

S- anfcieqnent win 314
aabeeqaent will, doea not levlTeprior. . . 114
by marriage of tcetatoraad binh oi laane.. 3U

of lealatrli 314

contract to tell property dlepaeedof by will,

ianot 314

ehatee Dpou property dlipoeedoT by will, l<

conyeyance. etc., whan "not 314

whan It ie 3IG

teroliea codlclla 815

child bom alter matlsg of. takea ahaie SIB

ahara of. Itom what taken SIB

•itatecoBYByedby Sib

certain dlapoeltlons by, not to lapse 81E

wllneu to. can take ander, when SIB

may taksahare Independent of. 316

eubaeqnent Incompetency of 318

Interprelallon of. 818

according to InlentloD 318

tobecoi3lnedto written will 318

ruleeof SIS

Mveral to betaken together In SIS

all pane to be coneldered In 816

latter part controla 316

diatinct clBRBe not to be diiregardedln SIfl

lo caee of donbl 31T

worda taken In ordinal? eenie in SIT

to be Riven effect In 817

technical, how taken 31T

effect of certain, in '.,'.'.'. 317

of gift, what lo be deemed in 817

lo avoid lolMtacv :,... 817

of devlaa. etc., of all property In 318, SIT

of teeldueof esme in 817

aa referring to time ot death 317

devlie, etc.. to a elaaa SIS

direction a for oonveraton 818

when pealhomoue child Ukea ander 818

mlatakea and amlaatona In, bow corrected SIS

when devlaea, etc.. of, reat., SIB

can be dlveated SIS

effect of death of datlaee before testator SIS

eondlllonat devlae, etc.. In, what la 318

condition precedent In, what la 31S

effect of. SIS

when deemed to he performed 818

condition aabaeqaant In, what la 318

who take Id common under 819

when giru. etc.. do aot radnce legacies Sin

lagaclei of 319

See Ltgacia. Legatet.

lltle lo leal eetat*. whan not aflteled by .ISO

Inclndea codicil 341, 475

by what law governed — 321

946

Indbx.

Pass.

WILL— Continued.

beneficiaries of, when liable for testator'! debts S21

effect of, on gift In view of death 304

probate of 607, 618

petition, notice and proof 607

contesting 809, 613

after probate 613, 611

See Devise, Executor.

WITNB8S, fees of 171

to grant of real property, when necessary 301

proof by 306

how made 307

to will necessary 312

duties of 312

cannot take nnder will, when 815, 316

change of venue for convenience of. 492

in supplementary proceedings 544

death of, after examination 5&6

examination of parties as 565

who may be 556

means of producing 566, 557

need not attend out of county 557

may require fees in advance 567

contempt by 730, W6, 557

exemption of, from process or salt 558

oath to 558

modes of taking testimonv of •''SO

certain personi* not examined as, when 568

perpetuation of testimony of 564

probate court may compel attendance of 606

one sufficient tu (rove will, when 609

privilege of, restricted.... 800, 760, 746, 733, 730, 706
revising to attend before legislature or commit-
tee, or to testify 710

convict of perjury Incompetent as 715

penalty for deceiving 716

Ereventine, Arom attending 716
ribery of. 716

securing, on holding defendant to answer 828

names of, to be Indorsed on ludictment 836, 830

recognized on removal of action 840

discharge of, a defendant to become 848

in criminal case, compelling attendance 867

accused to be confk'onted by 806

not compelled to be, against himself 806

juror to be examined as, when 850

WRECKED PROPERTY, unlawftil detention of. . . 751
defacing marks upon 751

Pa«s.

WRIT defined 4W

of ln<iniry 4S9

of injunction abolished S09

of execution 581

of error 807, 58S

of certiorari SU

of mandamus 562

of prohibition 594

of habeas corpus 893

WRIT OF ERROR, in criminal case, sned out by

whom 883

petition to obtain.: 881

parties to, how designated 884

in what cases sued out by defendant 884

by territory 864

time for suing out 884

operates as a stay, when 884

return of, what to contain 864, 86

citation to defendant in 865

dlsmiosing for irregularity 865

argument of. 88i

Iudgment on 866
urisdlction of, ceases when 8Bi
n civil cases, how regulated SSS

WRITING defined 800, 881, 771, 475

apprentice's indenture must be in SS

trust in real property must be In MS

power concerning real property must be in 346

private communicatioDS in, belong to whom. . . 396

transfer may be made without, when 300

in called grant 300

of real property, must be in 301

of ship, must oe in SOS

of trust, must be in 906

what contracts must be in 840, 848, 349

contract not in, throush firand, when enforc^.. 840

supersedes oral negotiations 341

contract in, takes effect, when 3(1

« intention of parties to, how ascertained 341

instrument In, evidence of consideration 840

how pleaded 600

admission and Inspection of 656

promise of executor, etc., most be in 645

mutilation of 7SS

YANKTON, seat of government 1

excepted ftrom general school law W

ZIEBACH COUNTY 1»

\

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