I i > x- «*•* % .^v* V 1M Q. ft ^ *-A^t> Digitized by the Internet Archive in 2013 http://archive.org/details/revisedstatutesoOOidah ERRATA. Section 416, line 1, for body read copy. Section 441, line 2 from bottom, for so read to. Section 504, subdivision first, line 5, after elector insert or ivhen any such qualified elector. Section 504, sub. second, line 3, from end of subdivision, for the appli- cant read such applicant. Section 541, line 3, for no read on, and insert strictly after being. Section 553, line 2,, for or read on. Section 555, line 3, for another read any other. Section 557, line 3, insert not after is. Section 571, last line of oath, for voted previously read previously voted: Section 575, line 2, for the vote read to vote Section 575, line 3, insert to before him. Section 602, line 3, for office read officer. Section 651, sub. sixth, line 10, omit where. Section 651, sub. 16, line 11, after from insert said districts from. Section 672, line 1, for present read parent. Section 755, line 7, for remembered read reimbursed. Section 812, line 2, for it read is. Section 902, last line, after able insert bodied. Section 947, next to last line, for with read to. Section 963, line 3, after refuses insert either. Section 1153, line 5, for if read of. line 6, for contagious read contagion. line 3, omit over. last line, for rate read date. line 4 from bottom, omit no. line 4, omit the comma after pharmacy. at end, villages of over should read villages of [not] over. next to last line, for of read in. line 5, for digitates read digitalis. sub. third, line 4, for a read one. next to last line, after be insert made. line 9, for said read such. sub. second, line 7, omit same. line 3, before agent insert the. line 2, for of read in. line 5, for thereof read thereto. last line, for by read of. line 2, insert of after or. line 3, for deed to read deed, of. line 1, for provided redid proved. sub. 16, line 2, for tax read law. line 7, omit to. line 3, for applications read appliances. line 3 from end, omit the second be. line 4, for where read ivhen. next to last line, for f/ie relate read ^e^/ relate. Section 1153 Section 1162 Section 1265 Section 1266 Section 1282 Section 1285 Section 1288 Section 1295 Section 1301 Section 1428 Section 1463 Section 1463 Section 1478 Section 1501 Section 1535 Section 1551 Section 1552 Section 1553 Section 1556 Section 1759 Section 1760 Section 1763 Section 1775 Section 1776 Section 2032 il ERRATA. Section 2142, last line, for distance read distant. Section 2152, next to last paragraph, after less insert than. Section 2207, next to last line, for of read or. Section 2208, line 6, omit and. Section 2230, sub. 13, line 4, after sums insert paid. Section 2230, sub. 35, line 4, for place read peace. Section 2232, line 11, for each read such. Section 2232, line 14, for each read such. Section 2599, line 13, for call read called. Section 2600, line 2, for if read of. Section 2649, last line, after corporation insert shall be extended. Section 2650, line 4 from bottom, for the read t h is. Section 2666, sub. 3, line 3, their should read [other,] Section 2723, line 11, for interested read interest. Section 2951, sub. 1, after court insert of. Section 3100, next to last line, for subsequent read subsequently. Section 3101, line 13, period after claim and cap. W. Section 3203, next to last line, before must insert he. Section 3365, line 3, omit to. Section 3386, sub. 1, line 2, after that insert it. Section 3387, line 10, for return read retain. Section 3391, next to last line, for make read take. Section 3398, next to last line, for effected read effectual. Section 3602, line 5, after tvhen insert the. Section 3830, at top of page, for unjust read impost. Section 3866, line 5, for reasons read purposes. Section 3944, line 3, for and read are. Section 3952, next to last line, omit days. Section 3971, next to last line, after must insert be. Section 4009, line 2, after to insert its. Section 4143, line 9, for any read a. Section 4231, line 4, for reserved read reversed. Section 4255, line 5, for a court read the court. Section 4280, line 3, after deliver insert it. Section 4288, sub. 3, last line, for tendency read tending. Section 4297, line 17, after hearing insert as. Section 4297, line 4 from end, for an read any. Section 4305, line 12, period after undertaking and cap. s. Section 4457, line 10, for stated read stayed. Section 4478, line 2, omit party. Section 4480, sub. 3, line 8, insert or after reserved. Section 4480, subdivision 6, line 4, after earns insert his. Section 4482, sub. 3, line 5, for or read and. Section 4542, paragraph 4, line 2, after party insert is. Section 4597, line 2, for instrument read investment. Section 4704, sub. 3, line 9, for receive read recover. Section 4842, line 7, for if read is. Section 4842, line 8, for if read is. Section 4893, line 2 from bottom, after bring insert him. Section 4915, line 3 from bottom, for sufficient read insufficient. Section 5098, line 4 from end, for and read an. Section 5167, line 3, after of insert attachment. Section 5191, last line, county should read [district]. Section 5226, next to last line, after in insert evidence. Section 5227, last line, for sided read sides. Section 5298, line 1, for provision read petit ion. Section 5311, line 1, for and read all. Section 5467, line36, for on read or. ERKATA. Ill Section 5599, line 5, for a read or. Section 5628, line 5 from end, for recovered read reversed. Section 5644, line 4, for approving read appointing. Section 5705, line 1, for decrees read degrees, and for completed, read com- puted. Section 5788, line 6, for depositing read disposing of. Section 5876, line 7, for unwillingness read ivillingness. Section 5882, line 13, for of the read to the. Section 5899, line 1, for distributed read disturbed. Section 5918, line 3, for judiciary read fiduciary. Section 6077, line 2, for parties read party. Section 6304, line 2, for officer read office. Section 6308, line 2, after that omit the. Section 6411, line 4, for adopted read approved. Section 6570, last line, for or read and. Section 6584, line 2, after carries insert him. Section 6713, line 2, omit so. Section 6731, line 4, for chemicals read chemical. Section 6741, line 5, after under omit the. Section 6768, last line, for for read to. Section 6794, line 1, for provided read provides. Section 6860, line 1, person should read [physician.] Section 6867, line 1, for brand read brands. Section 6882, line 2, for head read herd. Section 6931, line 4, after or insert while. Section 6975, sub. 2, line 1, for part read portion. Section 6976, line 3, after over insert the same. Section 6977, line 2, for included read iucludes. Section 7028, line 3, for letters patent read letters-patent. Section 7028, line 16, omit action before real. Section 7028, line 21, for a lien read alien. Section 7037, line 2, for from read for. Section 7040, last line, omit ./me before imprisonment. Section 7080, insert or fear at end of second line. Section 7086, line 3, insert other before property. Section 7090, line 4, for convenience read connivance. Section 7093, sub. 1, line 1, for such read any. Section 7151, last line, for following read preceding. Section 7154, line 1, for the read to be. Section 7158, sub. 5, line 4, for part read park. Section 7163, line 1, for or read and. Section 7208, line 3 from bottom, omit last is. Section 7400, next to last line, for aids read aiders. Section 7401, line 3, for aids read aiders. Section 7425, [in office.] should be added to section. Section 7431, line 5, omit and. Section 7553, line 6, for an read any. Section 7565, line 2, for on read upon. Section 7575, line 3, for prosecution redid, prosecutor. Section 7609, sub. 7, last line, for challenged read challenging. Section 7833, sub. 1, line 1, after fact insert is. Section 7855, sub. 2, line 1, for the counsel read other counsel. Section 7869, last line, for be read is. Section 7915, line 3, after must insert then. Section 7996, sub. 3, line 2, for a read the. Section 8076, line 3, for transmitted read remitted. Section 8126, line 6, for the minutes read its minutes. Section 8178, line 4, for or read on. IV ERRATA. Section 8186, line 5, after his insert making an. Section 8188, line 3, after or insert o/. Section 8314, line 1, for entering read entitling. Section 8324, line 9, after on insert the. Section 8346, line 5, after him omit to. Section 8358, line 1, after person insert tvho. Section 8384, line 5, before inquisition insert the. Section 8504, line 9, for such read each. Section 8506, line 4, for and read or. Section 8544, line 4, for there read then. THE REVISED STATUTES OF IDAHO TEKRITOKY. iLisr^crjEr) at xhe FOUBTEENTH SESSION OF THE LEGISLATIVE ASSEMBLY. In Force June 1, 1887. BOISE CITY, IDAHO: PRINTED FOR THE TERRITORY. 1 S87. HENRY GIBSON, PRINTER AND BINDER, OMAHA, NEB. ' \&t \ INTRODUCTION. The Thirteenth Session of the Legislative Assembly, by an Act, ap- proved February 5, 1885, authorized the Governor of the Territory to appoint a commission of three persons to revise, simplify, arrange and consolidate all statutes of the Territory, which should be in force at the time of the final report of the Commission. Before they had fairly entered upon their labors, his colleagues upon the Commission were, in common with their fellow citizens, called upon to mourn the death of the Honorable Henry E. Prickett, late a Justice of the Supreme Court of the Territory, and a member of the Commission by the appointment of Governor Bunn. In the death of Judge Prickett the people of the Territory were deprived of the benefit of his profound learning, his long experience and great familiarity with the Statutes, and his patient and untiring industry; which, coupled with his acknowl- edged singleness and honesty of purpose, went to make up a character in which the public reposed this, and many other trusts, with unques- tioning confidence. In the history of the legislation of the Territory, there has been but one former revision or compilation of the Statutes, that of 1875, by Ed- ward Jay Curtis, Esq., which, though gratuitously undertaken, Avas ex- ecuted in so masterly a manner that it at once commanded, if not an adequate, a substantial acknowledgment from a grateful people. 'The work of the present commission, which will hereafter be known as the Revised Statutes of Idaho, is divided into four parts, designated, for convenience of classification and reference, respectively, the Political Code, which contains the enactments relating to the machinery of gov- ernment as far as the same is regulated by Territorial legislation; the Civil .Code, relating to personal and private rights and private property; the Code of Civil Procedure, regulating the entire subject of civil procedure in all the Courts; and the Penal Code, which embraces crimes, criminal procedure, the Territorial prison and county jails. The several codes are divided into Parts, Titles, Chapters, Articles and Sections. Two methods of numbering the sections were presented to us, — First, to number the entire work in one series; second, to form a distinct se- ries of the sections of each chapter. The former has, among other advantages, the great convenience of enabling us to index the work by sections and to cite any part of it without naming Code. Part, Title or Chapter. By the other plan, chapters and sections may be added from time to time without confusion, but every reference would have to name the Code. Title, and Chapter as well as the Section. INTRODUCTION. We have, after considering the advantages and disadvantages of each, adopted the former plan, and at the same time endeavored to secure sonic <>f the benefits of the latter by leaving blank numbers between each chapter and title, so that, with a little care, amendments and addi- tions may be made without confusion. The Legislature by Joint Resolution, passed on the day of its adjourn- ment, directed that in preparing the Revised Statutes and the other gen- eral laws passed at the Fourteenth Session, for publication, such other general laws, when practicable, should be inserted in their proper places and the sections numbered consecutively with the sections of the Re- vised Statutes, preserving the original numbers, when necessary, in parentheses; and that, in printing, all parts of the Revised Statutes clearly repealed, should be omitted. All the general laws passed at the Fourteenth Session of the Legislative Assembly have been inserted in proper Titles of the Revised Statutes, so that the latter, when they go into operation on the first day of June next, will embrace all the general laws of the Territory. All parts of the Revised Statutes repealed by un- mistakable reference, have been omitted from the printed volume; but as many of the acts of the last session made no reference to the Revised Statutes, but concluded with the general repealing clause, it was beyond the power of any commission to reconcile contradictions by further omis- sions. These contradictions cannot properly be charged to the Commis- sion. They can only be avoided in the future by making proposed legis- lation take the form of amendments or additions to particular Chapters of the Statutes, and re-enacting in full, as amended, any section or sec- tions that it is proposed to amend. Notwithstanding the failure of the recent session to designate, in many instances, just what parts of the Revision they intended to repeal, and the unavoidable discrepancies that result from such failure, the people are indebted to that session for many improvements in the laws, which the Commission did not feel authorized to make. As directed by the Legislature, the Declaration of Independence, the Constitution of the United States, and such parts of Title Twenty-three of the Revised Statutes of the United States as are applicable to the Territory, commonly known as the ''Organic Act,'' with the subsequent legislation of Congress affecting the same, have been prefixed to the Statutes of the Territory; and it is believed that this compilation of the "Organic Act" will be found more complete than any heretofore made. Richard Z. Johnson, James H. Beattv. John S. Gray, Commissioners, Boisk City. March 1. 1887. DECLARATION OF INDEPENDENCE. IN CONGRESS, JULY 4TH, 1776. THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF AMERICA. When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God en- title them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. \Ve hold these these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness; That to secure these rights Governments are instituted among men, deriving their just powers from the consent of the governed. That when- ever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Gov- ernment, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolish- ing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies, and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all hav- ing in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and press- ing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of large dis- tricts of people, unless those people would relinquish the right of Repre- sentation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfort- able, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. G DECLARATION OF INDEPENDENCE. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise: the State re- maining in the meantime exposed to all the dangers of invasion from bout, and convulsions within. tl<> has endeavored to prevent the population of these States; 'for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the con- ditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his As- sent to Laws for establishing Judiciary Powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance. He has kept among us. in times of peace. Standing Armies, without the Consent of our legislature. He has affected to render the Military independent of and superior to the Civil Power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws: giving his Assent to their acts of pretended Legislation: For quartering large bodies of armed troops among us: • For protecting them, by a mock Trial, from Punishment for any Mur- ders which they should commit on the Inhabitants of these States: For cutting off our Trade with all parts of the world: For imposing taxes on us without our Consent : For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences: For abolishing the free System of English LawTs in a neighboring Prov- ince, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally, the Forms of our Government: For suspending our own Legislature, and declaring themselves inves- ted with Power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protec- tion and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large armies of foreign mercenaries to compleat the wTorks of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us. and has endeav- ored to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions, we have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People. Nor have We been wanting in attention to our Brittish brethren. We have warned them from time to time of attempts by their legislature to 1 ECLARATION OF INDEPENDENCE. extend an unwarrantable jurisdiction over us. We Lave reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separa- tion, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, the Representatives of the United States of America, in General Congress Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and de- clare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to Levy War, con- clude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. JOHN HANCOCK. NEW HAMPSHIRE. Josiah Bartlett, Wm. Whipple. Matthew Thornton, MASSACHUSETTS BAY. Saml Adams, John Adams, Robt Treat Paine, Eldridge Gerry, RHODE ISLAND. Step. Hopkins. William Ellery. CONNECTICUT. Roger Sherman, Sam'l. Huntington, Wm. Williams, Oliver Wolcott. NEW YORK. Wm. Floyd, Phil. Livingston, Frans. Lewis, Lewis Morris. NEW JERSEY. Richd. Stockton, Jno. Witherspoox. Frans Hopkinson, John Hart. Abra. Clark, PENNSYLVANIA. Robt. Morris. Benjamin Rush, Benja. Franklin, John Morton. Geo. Clymer, Jas. Smith, Geo. Taylor, James Wilson. Geo. Ross. DELAWARE. Caesar Rodney, Geo. Read. Tho. M'Kean, DECLARATION OF INDEPENDENCE. MARYLAND. Samuel Chase. Wm. Paca, Thos. Stone. Charles Carrol of Carrollton. VIRGINIA. George Wythe, Richard Henry Lee, Th. Jefferson. Benja. Harrison, Thos. Nelson. Jr. . Francis Lightfoot Lee. Carter Braxton. NORTH CAROLINA. Wm. Hooper, Joseph Hewes. John Penn, SOUTH CAROLINA. Edward Rutledge, Thos. Hayward, Junr.. Thomas Lynch, Junr., Arthur Middleton. GEORGIA. Button Gwinnett. Lyman Hall. Geo. Walton. CONSTITUTION OP THE UNITED STATES. 1877. We the People of the United States, in Order to form a Preamble, more perfect Union, establish Justice, insure domestic Tran- quility, provide for the common defence, promote the gen- eral Welfare, and secure the Blessings of Liberty to our- selves and our Posterity, do ordain and establish this Con- stitution for the United States of America. ARTICLE I. Section 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 Representatives. Section 2. The House of Representatives shall be com- posed of Members 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 several States which may be included 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 Per- sons. 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 Number of Representatives, shall not exceed one for every thirty Thou- sand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachu- setts eight, Rhode-Island and Providence Plantations one, Connecticut five. New York six, New Jersey four, Pennsyl- vania eight, 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 Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall choose their Speaker and other officers; and shall have the sole Power of Impeach- ment. Legislative powers, where vested . House of Rep- resentatives, how constituted. Qualifications of a representative. Representatives and direct taxes how apportion- ed. Census. Vacancies to be filled. Power of choos- ing officers ; and of impeach- ment. 10 CONSTITUTION OF THE UNITED STATES. Senators, how and by whom chosen. How classified. Vacancies, how filled. Qualifications of a senator. President of senate, his right to vote. Officers of sen- ate, how chosen. Power to try im- peachments. Chief justice lo preside when . Sentence. Times etc. of holding elec- tions. One sesion in each year. Membership. Quorum. Adjournments. Rules ; power to punish or expel. Journal. Section 3. The Senate of the United States shall be com- posed of two Senators from each State, chosen by the Leg- islature 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 Expiration of the second Year, of the second Class at the expiration of the fourth Year, 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, but shall have no Vote, unless they be equally divided. The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice Presi- dent, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeach- ments. 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 Per- son shall be convicted without the Concurrence of two- thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and Disqualification to hold and enjoy any Office of Honor, Trust, or Profit under the United States : but the Party convicted shall neverthe- less be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be pre- scribed in each State by the Legislature thereof ; but the Congress may at any time by Law make or alter such Reg- ulations, except as to places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section 5. Each House shall be the Judge of the Elec- tions, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Busi- ness ; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts CONSTITUTION OF THE UNITED STATES. 11 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, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section 6. The Senators and Representatives shall re- ceive a Compensation 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 returning 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 was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created or the Emoluments whereof shall have been in- creased during such time; and no Person holding any Of- fice under the United States, shall be a Member of either House during his Continuance in Office. Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Repre- sentatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he ap- prove he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the ( )bjections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall 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 Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concur- rence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him. or be- ing disapproved 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 Yeas and nays. Time of adjourn- ment, limited, unless, etc. Compensation. Privileges. Disqualification in certain cases. House to orig- inate all revenue bills. Veto. Bill may be passed by two- thirds of each house notwith- standing. Bill not returned ii^ten days. Joint resolutions to be presented to the president for approval. Powers of con- gress. 12 CONSTITUTION OF THE UNITED STATES. Provision as to migration or im- portation of cer- tain persons. Habeas corpus. of the United States; but all Duties. Imposts and Excises shall 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 States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and .uni- form 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 Se- curities and current Coin of the United States ; To establish Post Offices and post Roads ; To promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the ex- clusive 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 Offences 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 Lawrs of the Union, suppress Insurrections and repel In- vasions ; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be em- ployed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the Disci- pline prescribed by Congress ; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten miles square) as may, by Cession of particular States, and the Acceptance of Con- gress, become the seat of the Government of the United States, and to exercise like authority over all Places pur- chased by the Consent of the Legislature of the State in which the same shall be, for the erection of Forts. Maga- zines. Arsenals. Dock-Yards, and other needful 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 Constitution in the Government of the United States, or in any Department or Officer thereof. Section 0. The Migration or Importation of such Persons as any of the States now existing shall think proper to ad- mit, shall not be prohibited 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 exceeding ten dol- lars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. CONSTITUTION OF THE UNITED STATES. 13 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 herein before di- rected 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 Com- merce or Revenue to the Ports of one State over those of an- other: nor shall Vessels 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 Con- sequence of Appropriations 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 States : And no Person 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 what- ever, from any King. Prince, or foreign State. Section 10. No State shall enter into any Treaty, Alli- ance, or Confederation: grant Letters of Marque and Repri- sal: 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 LTse 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 of Tonage, keep Troops, or Ships of War in time of Peace, enter into any Agreement 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. Bills of attain- der, etc. Taxes, how ap- portioned. No export duty. No commercial preferences. No money drawn from treasury unless appro- priated by law. No title of nobil- ity. Officers not to receive presents. States prohibit- ed from the ex- ercise of certain powers. ARTICLE II. Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected as follows Each State shall appoint, in isuch Manner as the Legisla- ture 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. [Here followed provisions as to the mode of casting the electoral votes, which ore superseded by the Twelfth Amend- ment.] The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. President and vice president: their term of of- fice. Electors of pres- ident and vice president; num- ber and how ep- p Dintfed. Electors to vote on the same day. 11 CONSTITUTION OF THE UNITED STATES. lit'icatious of tlip president. (>:i whom hi* dmtiea devolve in case at his re- moval,death or liability. Presidents corn- pens ation. His oath President to be commander-in- chief. He may require opinion of cabi- net officeis. Pardoning pow- er. Treaty making power. Nomination of certain officers. When president may fill vancies . Message to co;: gress. May convene and in some cases adjourn congress. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Con- stitution, 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 thirty-five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, 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 act as President, and such Officer shall act ac- cordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Ser- vices, a Compensation, which shall neither be encreased nor diminished during 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 Execution of his Office, he shall take the following Oath or Affirmation: — "I do solemnly "swear [or affirm] that I will faithfully execute the Office "of President of the United States, and wrill to the best of "my Ability, preserve, protect, and defend the Constitution "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 Depart- ments, upon any Subject relating to the Duties of their re- spective 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 Con- sent 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, shall appoint Ambassadors, other public Ministers and Con- suls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein oth- erwise provided for, and which shall be established 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 Depart- ments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by grant- ing Commissions which shall expire at the End of their next Session. Section 3. He shall from time to time give to the Con- gress Information of the State of the Union, and recom- mend to their Consideration such Measures as he shall judge necessary and expedient; he may. on extraordinary Occasions, convene both Houses, or either of them, and in case of Disagreement between them, with Respect to Time of Adjournment, ho may adjourn them to such Time as he CONSTITUTION OF THE UNITED STATES. 15 Shall receive ambassadors. Forfeiture of of- fices for crime. Judicial power, where vested. Tenure of office. Compensation. Extent of judicial power. See amendment XI. shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faith- fully executed, and shall Commission all the officers of the United States. Section 4. The President. Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for. and Conviction of. Treason. Bribery, or other high Crimes and Misdemeanors. ARTICLE III. Section' 1. The judicial Power of 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 estab- lish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in ( )ffice. Section 2. The Judicial Power shall extend to all Cas- es, 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 affect- ing Ambassadors, other public* Ministers, and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Con- troversies 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, and foreign States, Citizens or Sub- jects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the 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 Crimes 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 con- sist 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 Corrup- tion 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 Eaohstateto State to the public Acts, Records, and judicial Proceedings tue°records of of every other State. And the Congress may by general everyother. Original jurisdic- tion of Supreme Court. Appellate. Trial by j ury of criminal prose- cutions. Place of trial. Treason defined. Proof. Its punishment. 16 CONSTITUTION OF THE UNITED STATES. Privileges of cit- izens Of eat-h Stat i . Fugitives from justice to be de- livered a p. Persons held to service, having escaped to be de- livered up. Admission of new States. Power of Con- gress over terri- tory and other property of the United States. Republican form of government guaranteed. Each Staite to be protected. Constitution, how amended. Limitation of amendments. Confirmation of old obligations of the United States . Laws prescribe the Manner in which such Acts. Records and Proceedings shall be proved, and the Effect thereof . Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason. Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be re- moved to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Conse- quence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section 3. New States may be admitted by the Con- gress into this Union ; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of 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 United States: and noth- ing 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 this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Appli- cation of the Legislature, or the Executive (when the Leg- islature cannot be convened) against domestic Violence. ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it necessaiy, shall propose Amendments to this Con- stitution, or on the Application of the Legislatures of two thirds of the several States, shall call a Convention for pro- posing 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 pro- posed 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, be- fore 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, under the authority of the CONSTITUTION OF THE UNITED STATES. 17 United States, shall be the supreme Law of the Land; and gSSSSKn0' the Judges in every State shall be hound thereby, Anything treaties, and in the Constitution or Laws of any State to the Contrary uSe^ states. notwithstanding. The Senators and Representatives before mentioned, and oath to support the Members of the several State Legislatures, and all exec- whomSieS.' by utive 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 no religious be required as a Qualification to any Office or public Trust under the United States. test. constitution. ARTICLE VII. The Ratification of the Conventions of nine States, shall S^sufficfent to be sufficient for the Establishment of this Constitution be- establish this tween the States so ratifying the Same. 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 Eigh- tv seven and of the Independence of the United States Of America the Twelfth IN WITNESS whereof We have hereunto subscribed our Names. Go ; W ASHINGT( )N, Presidt. and Deputy from Virginia. NEW HAMPSHIRE. John Langdon, Nicholas Oilman. MASSACHUSETTS. Nathaniel Gorham, Rufus King. C( )NNECTICUT. Wm. Saml. Johnson. Roger Sherman. NEW YORK. Alexander Hamilton. XEW JERSEY. Wjl: Livingston, David Brearlev. Wm. Patterson. Jona. Dayton. PENNSYLVANIA. B. Franklin Thomas Mieflin. Robt. Morris. Geo: Clymer, Tho: Fitzsimons, J a red Ingersoll, James Wilson. Gouv: Morris. DELAWARE. Geo: Read, Richard Bassett, John Dickenson. Gunning Bedford. Jmrr, Jaco: Broom. MARYLAND. James McHenev. Dane. Carroll. Dan. of St. Tho: Jenifer. VIRGINIA. John Blair. James Madison. Jr. NORTH CAROLINA. Wm. Blount. Hr. Wellluison, Richd. Dolls. Spaight. SOUTH CAROLINA. J. Rutledge, Cmaklls PlN( KN1 Charles Cotesworto Pinckney, Peihof Butler. GEORGIA. William Few. A.i;l. Baldwin. Attest: WILLIAM JACKSON, Secretary. 2 18 CONSTITUTION OF THE UNITED STATES. ARTICLES IX ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF TDK UNITED STATES OF AMERICA, Religious estab- lishment prohib- ited. Freedom of speech and of the press, and right of petition. Right to keep and bear arms. Quartering sol- diers in private houses. Right of search and seizure reg- ulated. Criminal pros- ecutions, trials and punish- ments. Taking private property for public use. Further provis- ions respecting criminal prose- •cutions. Proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fiftn article of the original Constitution. (ARTICLE I.) 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 prescribed 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 violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affir- mation, 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 other- wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising 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 sub- ject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liber- ty, or property, without due process of law; nor shall pri- vate property be taken for public use. without just compen- sation. (ARTICLE VI.) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the Slate and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law. and to be informed of the nature mid cause of the accusation; to be confronted with the witnesses against him; to have ( lompulsory process for obtaining Wit- nesses in his favor, and to have the Assistance of Counsel for his defence. CONSTITUTION OF THE UNITED STATES. 19 by (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 accord- ing to the rules of the common law. Right of trial jury. (ARTICLE VIII.) Excessive bail shall not be required, nor excessive fines Excessive ban or ■*- - _ ' . _ *rm ni an rnori to imposed, nor cruel and unusual punishments inflicted. (ARTICLE IX.) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (ARTICLE X.) The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (ARTICLE XL) The Judicial power of the United States shall not be con- strued to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. (ARTICLE XII.) The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with them- selves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all per- sons voted for as President, and of all persons voted for as Vice-President, and of the number 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 Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for Presi- dent, 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 immediately, by ballot, the President. But in choos- ing the President, the votes shall be taken by states, the rep- resentation 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 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 de- volve upon them, before the fourth day of March next fol- punisbments. Rights retained by tbe people. Powers not del- egated to the United States. Suits against a state by an in- dividual. Manner of choosing presi i- dent and vice president. l.x H C tn !-*• o- 0B_ r+ 00 P3 ex o tn 0 o t/J 5' 33 P ■ 0 '20 CONSTITUTION OF THE UNITED STATES. lowing, 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 num- ber 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-Presi- dent; a quorum for the purpose shall consist of two-thirds the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person con- stitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. Slavery abolish- ed. ARTICLE XIII. Section 1. Neither slavery nor involuntary servitude. except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section ->. Congress shall have' power to enforce this ar- ticle by appropriate legislation. Citizenship defined. Privileges of citizens. Apportionment of representa- tives in congress Persons who have broken an ollicial oath (it allegiance, by aiding in rebel- lion, disquali- fied to hold oilier. 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 State shall make or enforce any lawr which shall abridge the privileges or immunities 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 any per- son within its jurisdiction the equal protection of the lawTs. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, ex- cluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice- President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the mem- bers of the Legislature thereof, is denied to any of the male inhabitants of such State, being 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 ba- sis of representation therein shall be reduced in the propor- tion which the number of such male citizens shall bear to the whole number 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 military, 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 ex- ecutive or judicial officer of any State, to support the Con- stitution of the United States, shall have engaged in insur- rection or rebellion against the same, or given aid or com- fort to the enemies thereof. P>ut Congress may by a vote of two-thirds of each House, remove such disability. CONSTITUTION OF THE UNITED STATES. 21 Section 4. The validity of the public debt of the United gpa1^ debt obli" States, authorized by law, including debts incurred for pay- ment of pensions and bounties for services in suppressing in- surrection or rebellion, shall not be questioned. But neith- er 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 eman- claims for cipation of any slave; but all such debts, obligations and c°pluo£y0feman~ claims shall be held illegal and void. slaves. .Section 5. The Congress shall have power to enforce, by appropriate legislation, 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. Section 2. The Congress shall have poAver to enforce this article by appropriate legislation. REVISED STATUTES OV THE UNITED STATES Rights of Indians in person and property not im- paired by this title etc. Bound- aries etc. TITLE XXIII.— The Territories. CHAPTER ONE. Provisions Common to all the Territories. Section 1839. Right of Indians in person and prop- erty not impaired by this Title, &c Boundaries, &c. 1840. Authority to regulate Indians. Ju- risdiction of Indians. 1841. Executive power. 1842. Veto power. 1843. Secretary. 1844. Secretary's duties. 1845. Salaries of Governors and Secre- taries. 184G. Legislative power. 1847. Census and Elections. 1848. Time and place of holding Elections. 1849. Apportionment. 1850. Laws to be submitted to Congress. 1851. Extent of Legislative powers. 1852. Limitof time of sessions. Compensation of members. Num- ber of members, &c. 1854. Members of Legislature prohibited from holding certain offices. Prohibition of extra compensation to certain officers. 1856. Election of Justices of the Peace and Militia officers. t Other officers. Vacancies, how filled. Qualifications of voting and holding office at first election. At future elections. Subordinate officers of Legislature. Delegate to Congress. Time, places, and manner of electing Delegate. Supreme Courts of Territories. Judicial Districts and Courts. i860. Jurisdiction of Courts. 1867. Jurisdiction of Justices of the Peace. 1 808. Chancery and Common Law Juris- diction. 1855. 1857 1858 1859 I860 1861 1862 1863 1864 1865 Section 1869. Appellate Jurisdiction of Supreme Court. 1870. Clerk of Supreme Court. 1871. Clerk of District Court. 1872. Register in Chancery, residence and office. Judicial District, how defined. Judges of Supreme Court to hear certain causes. District Attorneys. Marshals. Appointment of Governor, &c. Oath of office ; how qualified. Salaries of Justices. Salary of Attorney. 1 873. 1874. 1875. 1876. 1877. 1878. 1879. 1880. 1881. Salary of Marshal. 1882. When salaries to be paid. 1883. Fees of Clerks, &c. Salary not to be paid when officer is absent. Seat of government in a new territory. Accounts of the Territories ; no pay- ment unless approved by Con- gress. Limitation on expenses of printing. Limitation on expenses of Legisla- ture. 1889. Legislatures not to grant special charters or pass special laws. 1890. Limitation on rights of religious cor- porations to hold real estate. 1891. Constitution and laws of United States made applicable to all the Territories. 1893 Rules for the government of peniten- tiaries 1894. Payment of Marshal, &c, and of ex- penses of subsistence, &c, of of- fenders. 1 895. Imprisonment in penitentiaries. Public Schools. 1884. 1885 1886 188 1 Sec*. 1839. Nothing in this Title shall he construed to impair the rights of person or property pertaining to the In- dians in any Territory, so long as such rights remain unex- tinguished 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 Terri- tory now or hereafter organized until such tribe signifies its 22 REVISED STATUTES OF THE UNITED STATES, 23 Authority to reg ulate Indians. Jurisdiction over Indians committing certain crimes. 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 reg- ulation respecting the Indians of any Territory, their lands, property, or rights, by treaty, law or otherwise, in the same manner as might be made if no temporary government ex- isted, or is hereafter established, in any such Territory. Sec. 0. That immediately upon and after the date of the passage of this act, all Indians, committing against the person or property of another Indian, or other person, any of the following crimes, namely: murder, manslaughter, rape, assault with intent to kill, arson, burglary and larceny, within any Ter- ritory of the United States, and either within or with- out an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and shall be subject to the same pen- alties as are all other persons charged with the com- mission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States. (Act March 3, 1885.) " Sec. 1841. The executive power of each Territory shall Executive pow- be vested in a Governor, who shall hold his office for four er" years, and until his successor is appointed and qualified, un- less 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 par- dons and reprieves, 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 objections, to that House in which it originated, and that House shall en- ter the objections at large on its Journal, and proceed to re- consider 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 yens and nays, and the names of the persons voting for or against the bill shall be Veto power. 21 REVISED STATUTES OF THE UNITED STATES. S« ■ retary. Secretaries duties. To furuish mates. esti- Salaries of gov- ernor and secre- tary. Legislative power. Census and election. entered on the Journal of such House. If any .bill is not returned by the Governor within three days. Sundays ex- cluded, except in Washington and Wyoming, where the term is five days, Sundays excluded, after it has been pre- sented to him, the same shall be a law, in like manner as if he had signed it. unless the Legislative Assembly, by ad- journment sine die, prevent its return, in which case it shall not be a law. Sec. L843. 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 qualified, unless sooner removed by the President. In case of the death, removal, resignation or absence of the Governor from the Territory. the Secretary 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 proceedings of the Legislative Assembly, and all the acts and proceedings of the Governor in the execu- tive 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 transmit one copy of the executive proceedings and official correspondence semi-an- nually, on the first day of* January and July m 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. And hereafter it shall be the duty of the Secretary of each Territory to furnish estimates in detail for the lawful expenses thereof, to be presented to the Secretary of the Treasury on or before the first day of October of every year. [Act June 20, 1874.] Sec. 1845. From and after the first day of July, eigh- teen hundred and seventy-three, the annual salaries of the Governors of the several Territories shall be three thousand five hundred dollars, and the salaries of the Secretaries shall be two thousand five hundred dollars each. Sec. 1840. The Legislative power in each Territory shall be vested in the Governor and a Legislative Assembly. The Legislative Assembly shall consist 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 Legis- lative Assemblies shall be biennial. Each Legislative As- sembly shall fix by law the day of the commencement of its regular sessions. The members of the Council and of the House of Representatives shall reside in the district or county for which they are respectively elected. Sec. 1847. Previous to the first election for members of the Legislative Assembly of a Territory in which Congress may hereafter provide a temporary government, the Gov- ernor shall cause a census of the inhabitants and qualified REVISED STATUTES OF THE UNITED STATES. 25 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 appoint, and the persons so appointed receive a reasonable conpensation for their services. the first election shall be held at such time and places, be conducted in such manner, both as to the persons superintended such election and the returns thereof, as shall And and who the Governor may direct; and he shall, at the same time, de- clare the number of members of the Council and the House of Representatives to which each of the counties or districts is entitled under the act providing such temporary govern- ment 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 declared by the Governor to be duly elected to the Council, and the persons having the highest number of legal votes for the House of Repre- sentatives 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 persons thus elected to the Legislative As- sembly shall meet at such place and on such day as the Gov- ernor appoints. Sec. 1848. After such first election, however, the time, place and manner of holding elections by the people in any newly created Territory, as well as of holding all such elec- tions in Territories now organized, shall be prescribed by the laws of each Territory. Sec. 1840. The apportionment of representation, which the Governor is authorized to make by Section eighteen hun- dred and forty-seven, 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 elec- tion of the Council and House of Representatives, giving to each section of the Territory representation in the ratio of its population, except Indians not taxed; and thereafter in such new Territory, as well as in all Territories now organ- ized, the Legislative Assemblies, respectively, may re-ad- just and apportion the representation of the two Houses thereof, among the several counties and districts, in such manner, from time to time, as they deem just and proper; but the number of either House, as authorized by law, shall not be increased. Sec. 1850. All Laws passed by the Legislative Assembly and Governor of any Territory except in the Territories of Colorado. Dakota, Idaho, Montana, and Wyoming, shall be submitted to Congress, and, if disapproved, shall be null and of no effect. Sec. 1851. The Legislative power of every Territory shall extend to all rightful subjects of Legislation, not inconsist- ent with the Constitution and laws of the United States. But no law shall be passed interfering with the primary dis- posal of the soil; no tax shall be imposed upon the property 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. L852. The sessions of the legislative Assemblies of Time and place of holding elec- tions. Appointment. Laws to be sub- mitted to con- gress. Extent of legis- lative power. Limit of time of sessions. •20 REVISED STATUTES OF THE UNITED STATES. N amber of mem- Cornpeusabion of members. Mileage . Compensation of president and speaker. Legislation to district terri- tories. Number of dis- tricts. Sections 1847, 1849, 1853, 1922. Members of legis- latures prohibit- ed from holding certain offices. Prohibition of extra compen- sation. Fees of secre- taries. Election of jus- tices of the peace and militia. the several Territories of the United States shall be limited to sixty days" duration. [Act Dec. 23, L880.] Tli at 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 in- to as many council and representative districts as they desire, which districts shall be as nearly equal as practicable, taking into consideration population, except "Indians not taxed": Provided, The number of council districts shall not exceed twelve, and the representative districts shall not exceed twenty-four in any one of said Territories, and all parts of Sections eighteen hundred and forty- seven; eighteen hundred and fort^-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. [Act June 19, 1878.] Sec. 1851. 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 emolu- ments of which have been increased, while he was a mem- ber, during the term for which he was elected, and for one year after the expiration of such term; but this restriction shall not be applicable to members of the first Legislative Assembly in any Territory hereafter organized; and no per- son holding a commission or appointment under the United States, except Postmasters, shall be a member of the Leg- islative Assembly, or shall hold any office under the Gov- ernment of any Territory. The exception of Postmasters shall not apply to the Territory of Washington. Sec. 1855. No law of any Territorial Legislature shall be made or enforced, by which the Governor or Secretary of a Territory, or the members or officers of any Territorial Legislature are paid any compensation other than that pro- vided by the laws of the United States. 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 bv the Territorial Legislatures. [Act June 19, L878.] Sec. 1 856. 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. REVISED STATUTES OF THE UNITED STATES 27 Be it enacted, etc. (Sec. 1.) That when from any cause there shall be a vacancy in the office of jus- tice of the peace in any of the Territories of the United States, it shall be lawful to fill such vacancy by appointment or election, in such manner as has been or may be provided by the Governor and Legis- lative Assembly of such Territory: Provided, That such appointee, or person elected to fill such vacancy, shall hold office only until his suc- cessor shall be regularly elected and qualified as pro- vided by law. [Act April 16, 1880.] Sec. 1X57. All township, district, and county officers, except Justices of the Peace and general officers of the Mili- tia, shall be appointed or elected in such manner as may be provided by the Governor and Legislative Assembly of each Territory; and all other officers not herein otherwise provid- ed for. the Governor shall nominate, and by and with the advice and consent of the Legislative Council of each Ter- ritory, 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 town- ships, 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 vacan- cy happens from resignation or death, during the recess of the Legislative Council, in any office which, under the Or- ganic Act of any Territory, is to be filled by appointment of the Governor, by 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 ses- sion of the Legislative Council. Sec. 1850. Every male citizen above the age of twenty- one, including persons who have legally declared their in- tention to become citizens in any Territory hereafter organ- ized, 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; subject, nevertheless, to the limitations specified in the next section. Sec, 18G0. At all subsequent elections, however, in any Territory hereafter 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 pre- scribed by the Legislative Assembly of each Territory; sub- ject, nevertheless, to the following restrictions on the pow- er of the Legislative Assembly, namely: First. The right of suffrage and of holding office shall be exercised only by citizens of the United States, above the age of twenty-one years, and by those above that age who have declared on oath, before a competent 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 office to a citizen on account of race, color, or previous condition of servitude. Vacancies in the office of justice of the peace/how filled. Other officers. Vacancies, how filled. Qualifiations of voting and hold- ing offices at first election. Future elections. 28 REVISED STATUTES OF THE UNITED STATES. Subordidate cffi cers of legisla- ture. Their compensa- tion from the United States. Delegates to con- gress. Time, place and manner of elect- ing delegate. Supreme court of territories. Judicial districts aud com ts. Jurisdiction of court-. Jurisdiction of justices of th<- peac<\ Third. No officer, soldier, seaman, mariner, or other per- son in the army or navy, or attached to troops in the ser- vice of the United States, shall be allowed to vote in any Ter- ritory, by reason of being on service therein, unless such Territory is and lias been for theperiod 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, except officers of the Army on the retired list. [Act March 3, L883.] Sec. L861. That the subordinate officers of each branch of said Territorial legislatures 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 during 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. [Act June 10, 1878. | Sec. 1862. Every Territory shall have the right to send a delegate to the House of Representatives of the United States, to serve during each Congress, 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 Rep- resentatives, with the right of debating, but not of voting. Sec. 1863. The first election of a Delegate in any Terri- tory for which a temporary government is hereafter pro- vided 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 proclama- tion: but at all subsequent elections therein for a Delegate, as well as at all elections for a Delegate in organized Terri- tories, 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 ap- pointed 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 dis- trict to which he is assigned. SEC. L866. The jurisdiction, both appellate and original, of the courts provided for in section L907 and 1908, shall be limited by law. Sec. 1867. No justices of the peace in any Territory shall have jurisdiction of any case in which the title to land, or the boundary thereof, in anywise comes in question. REVISED STATUTES OF THE UNITED STATES, 29 Sec. L868. The Supreme Court and the District Courts, respectively, of every Territory, shall possess chancery as well as common law jurisdiction. Whereas, by the organic acts establishing several of the Territories of the United States, it is provided that certain courts thereof shall have common law and chancery jurisdiction, and doubts have been en- tertained whether said jurisdictions must be exer- eised separately, or whether they, may be exercised together in the same proceeding, and whether the codes and rules of practice adopted, in said Territo- ries which have authorized a mingling- of said juris- dictions in the same proceeding, or a uniform course of proceeding in all cases legal and equitable, are re- pugnant to the said organic acts respectively: There- fore. Be it, enacted, etc., That it shall not be necessary in any of the courts of the several Territories of the United States, to exercise separately the common law and chancery jurisdictions vested in said courts; and that the several codes and rules of practice adopted in said Territories respectively, in so far as they authorize a mingling of said jurisdictions or a uniform course of proceeding in all cases whether legal or equitable, be confirmed; and that all pro- ceedings heretofore had or taken in said courts in conformity with said respective codes and rules of practice, so far as relates to the form and mode of proceeding, be, and the same are hereby, validated and confirmed: Provided, That no party 1ms been or shall be deprived of the right of trial by jury in cases cognizable at common law. [Act April 7, 1874.] Sec 1869. Writs of error, bills of exception, and appeals shall be allowed, in all cases, from the final decisions of the District Courts to the Supreme Court, of all the Territories, respectively, under such regulation as may be prescribed by law, but in no case, removed to the Supreme Court, shail trial by jury be allowed in that court. Sec. 1870. The Supreme Court of each Territory shall ap- point its own clerk, who shall hold his office at the pleasure of the court for which he is appointed. Sec. 1:871. Each Judge of the Supreme Court of the re- spective 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 ad ready appointed, and only such district clerk shall be entitled to a compensa- tion 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 the court is held. Sec. 1873. Temporarily, and until otherwise provided by law, the Governor of every Territory, which may be here- after established, shall define, by proclamation, the judicial districts of such Territory, and assign the Judges appointed for such Territory, to tic several districts, as well as fix the times and places for holding courts in the respective coun- ties <)]■ subdivisions of each judicial district. Chancery and common law jurisdiction. Preamble. Common law and chancery jurisdiction of territorial courts . Certain codes, rulesof practice, and proceedings confirmed. Trial by jury. Appellate juris- diction of su- preme court. Clerk of supreme court. Clerk of district court. Register in chan- cery ; residence and office . Judicial districts how defined. 30 KKYISED STATUTES OF THE UNITED STATES. Judges of su- preme courts to hear certain causes. District at- torneys. Marshals. Appointment of governor and other officers. Oath of office, how administer ed. Salaries of terri- torial officer?, when to com- mence. Oath ; when ad- ministered. Sec. 1 SM. The Judges of the Supreme Court of each Ter- ritory, are authorized to hold court within their respective districts, in the counties wherein, by the laws of the Ter- ritory, courts have been or may be established; for the pur- pose of hearing and determining all matters and causes, ex- cept those in which the United States is a party; but the ex- pense of holding such courts shall be paid by the Territory, or by the counties in which the courts are held, and the Uni- ted States shall in no case be chargeable therewith. Sec. 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 re- moved by the President. Sec. 1870. There shall be appointed a Marshal for each. Territory. He shall execute all process issuing from the Territorial courts when exercising their jurisdiction as cir- cuit 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 con- sent of the Senate, appointed by the President. • m Sec. 1878. The Governor and Secretary for each Terri- tory 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 appointed, duly authorized to administer oaths by the laws in force therein, or before the Chief Justice or some Associate Justice of the Supreme Court of the United States, to support the Consti- tution of the United States and faithfully to discharge the duties of their respective offices; and such oaths shall be certified by the person before whom the same are taken; and such certificates shall be received and recorded by the Secretary among the executive proceedings ; and the Chief Justice and the 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 certi- fied and transmitted by the person taking the same to the Sec- retary, 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 man- ner and form as may be prescribed by the law of each Ter- ritory. Hereafter payment of salaries of all officers of the Territories of the United States appointed by the President, shall commence only when the person ap- pointed to any such office shall take the proper oath, and shall enter upon the duties of such office in such Territory: and said oath shall hereafter be adminis- EE VISED STATUTES OF THE UNITED STATES. 31 tered in the Territory in which such office is held. [Act May 1, 1876.] Sec. 1870. The annual salary of the Chief Justice and Associate Justices of all the Territories now organized, shall be three thousand dollars each. Sec. 1880. The salary of the Attorney of the United States for each Territory, 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 Territory, shall be at the rate of two hun- dred dollars a year. Sec. 1882. The salaries provided for in this Title, to be paid to the Governor, Secretary, Chief Justices and Asso-. ciate Justices, District Attorney and Marshal of the several Territories, shall be paid quarter-yearly at the Treasury of United States. That hereafter the salaries appropriated for the United States Judges in the foregoing paragraphs, and Judges of the Court of Claims, and of the Terri- tories, may be paid monthly. [Act March 3, 1881.] Sec. 1883. The fees and costs to be allowed to the United States Attorneys and Marshals, to the Clerks of the Supreme and District Courts, and to jurors, witnesses, commission- ers, and printers, in the Territories of the United States, shall be the same for similar services by such persons as pre- scribed in chapter sixteen, Title "The Judiciary," and no other compensation 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 pro- per accounting officer of the Treasury, to be filed in his office. Sec. 1885. The Legislative Assembly of every Territory hereafter organized shall hold its first session at such time and place in the Territory as the Governor thereof shall ap- point and direct; and at the first session of the Legislative Assembly, or as soon thereafter as it may be deemed ex- pedient, the Governor and Legislative Assembly shall pro- ceed 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 Gov- ernor and Legislative Assembly. Sec. 1886. All accounts for disbursements, in the Ter- ritories of the United States, of money appropriated by Con- gress for the support of government therein, shall be settled and adjusted at the Treasury Department; and no act, res- olution, or order of the Legislature of any Territory, direct- ing the expenditure of the sum, shall be deemed a sufficient authority for such disbursement, but sufficient vouchers and proof for the same shall be required by the accounting offi- cers 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 appro- priation for its expenses has been made. Sec. L887. Hereafter no expense for printing, exceeding Salaries of jus- tices. Salary of attorneys. Salary of mar- shal. Salaries, when paid. Fees of clerks. Salary uot to be paid when officer is absent. Seat of govern- ment in a new territory. Accounts of ter- ritories, no pay- ment unless ap- proved by con- gress. Limitation on expense of print- ing. 32 REVISED STATUTES OF THE UNITED STATES. Limitation on expenses ol legislature. Territorial legis- latures. Forbidden to pass certain local or special laws. Kospeciri law to be enact' d where gei oial law can o j tour thousand dollars, including printing laws, journals, bills, and necessary printing of the same nature, shall be incurred i'ov any session of the Legislature of any of the Territories. 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 on'e vear. [Act June L9, L878.] Sec. L888. No Legislative Assembly of a Territory shall, in any instance or under any pretext, exceed the amount ap- propriated by Congress for its annual expenses. Be it enacted, etc., That the legislatures of the Ter- ritories of the United States now. or hereafter to be organized, shall not pass local or special laws in any of the following enumerated cases, that is to say: ( Si-ranting divorces. Changing the names of persons or places. Laying out. opening, altering, and working roads or highways. Vacating roads, town-plats, streets, alleys and public grounds. Locating or changing county scats. Regulating county and township affairs. Regulating the practice in courts of justice. Regulating the jurisdiction and duties of justices of tlie peace, police magistrates, and constables. Providing for changes of venue in civil and criminal cases. Incorporating cities, towns, or villages, or chang- ing or amending the charter of any town, city, or vil- lage. For the punishment of crimes or misdemeanors. For the assessment and collection of taxes for Ter- ritorial, county, township, or road purposes. Summoning and impaneling grand or petit jurors. Providing for the management of common schools. Regulating the rate of interest on money. The opening and conducting of any election or designating the place of voting. The sale or mortgage of real estate belonging to minors or others under -disability. The protection of game or fish. Chartering or licensing ferries or toll bridges. Remitting fines, penalties, or forfeitures. Creating, increasing or decreasing fees, percentage. or allowances of public officers during the term for which said officers are elected or appointed. Changing the law of descent. Granting to any corporation, association, or indi- vidual the right to lay down railroad tracks, or amend- ing existing charters for such purpose. Granting to any corporation, association, or indi- vidual any special or exclusive privilege, immunity, or franchise whatever. In all other cases where a general law can be made applicable, no special law shall be enacted in any of the Territories of the United States by the Territorial legislatures thereof. REVISED STATUTES OF THE UNITED STATES 33 Sec. 2. That no Territory of the United States now or hereafter to be organized, or any political or municipal corporation or subdivision of any such Territory, shall hereafter make any subscription to the capital stock of any incorporated company, or company or association having- corporate powers, or in any manner loan its credit to, or use it for the ben- efit of any such company or association, or borrow any money for the use of any such company or asso- ciation. Sec. 3. That no law of any Territorial legislature shall authorize any debt to be contracted by or on be- half of such Territory except in the following cases: To meet a casual deficit in the revenues, to pay the interest upon the Territorial debt, to suppress insur- rections, or to provide for the public defense, except that in addition to any indebtedness created for such purposes, the legislature may authorize a loan for the erection of penal, charitable or educational insti- tutions for such Territory, if the total indebtedness of the Territory is not thereby made to exceed one per centum upon the assessed value of the taxable property in such Territory as shown by the last gen- eral assessment for taxation. And nothing in. this act shall be construed to prohibit the refunding of any existing indebtedness of such Territory or of any political or municipal corporation, county or other subdivision therein. Sec. 4. That no political or municipal corpora- tion, county or other subdivision, in any of the Ter- ritories of the United States, shall ever become indebt- ed in a ii if ma liner or for any purpose to any amount in the aggregate, including existing indebtedness. exceeding four per centum on the value of the taxa- ble property within such corporation, county, or sub- division, to be ascertained by the last assessment for Territorial and county taxes previous to the incur- ring of such indebtedness; and all bonds or obliga- tions in excess of such amount given by such corpora- tion shall be void: That nothing in this act contained shall be so construed as to affect the validity of any act of any Territorial legislature heretofore en- acted, or of any obligations existing or contracted thereunder, nor to preclude the issuing of bonds al- ready contracted for in pursuance of express provi- sions of law; nor to prevent any Territorial legislature from legalizing the acts of any county, municipal corporation, or subdivision oi any territory as to any bonds heretofore issued or contracted to be issued. Sec. L889. The Legislative Assemblies of the several Ter- ritories shall not grant private charters or special privileges, but they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate, for min- ing, manufacturing, and other industrial pursuits, and for conducting the business of insurance, banks of discount and deposit (but not of issue) loan, trust, and guarantee associ- ations, and for the construction or operation of railroads, wagon roads, irrigating ditches, and the colonization and Not to subscribe etc., to any cor- poration. In what cases debts may be in- curred by terri- tories. Limit. Not to probibit refunding. Limit of indebt- edness to be in curred by coun- ties, etc. Not to be retro * active. General incor- poration acts. Insurance, back- ing, etc., associ- ations included. 34 REVISED STATUTES OF THE UNITED STATES. Powers of con- to annul, etc , laws not abridged. Acts in conflict to be null and void. Limit on right of religious corpor- ations to hold real estate. Constitution and laws of the Unit- ed States made applicable to all territories. Penitentiaries to continue under control of United States marshal. Rules for govern- ment of peniten- tiaries. Payment of mar- shal etc., and of expense of sub- sistence etc., of offenders. Imprisonment in penitentiaries improvement of lands in connection therewith, or for col- Leges, seminaries, churches, libraries, or any other benevo- lent, charitable, or scientific association. Sec. 6. That nothing' in this act contained shall be construed to abridge the power of Congress to annul any law passed by a Territorial legislature, or to modify any existing law of Congress requiring in any case that the laws of any Territory shall be sub- mitted to Congress. Sec. 7. That all acts and parts of acts hereafter passed by any Territorial legislature in conflict with the provisions of this act shall be null and void. [Act July 30, 1886.] Sec. 1890. No corporation or association, for religious or charitable purposes, shall acquire or hold real estate in any Territory, during the existence of the Territorial govern- ment, of a greater value than fifty thousand dollars; and all real estate acquired or held by such corporation or associa- tion 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. Sec. 1891. The Constitution and all laws of the United 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. 2. That the penitentiaries in the Territories of Montana, Idaho, and Wyoming, shall continue un- der the care and control of the Marshal of the United States for said Territories, under and pursuant to the provisions of the act entitled. '"An act in relation to certain Territorial penitentiaries/* approved Jan- uary tenth, eighteen hundred and seventy-one; which said last mentioned act is hereby revived and re-enacted so far as the same applies to the Territories of Montana, Idaho, and Wyoming. [Act June 20, 1874.] Sec. 1893. The Attorney-General of the United States shall prescribe all needful rules and regulations for the Gov- ernment 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 his deputies, for their services under such regulations, shall be 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 peni- tentiary, shall be chargeable on, and payable out of the fund for defraying the expenses of suits in which the United States are concerned, and of the prosecutions for offenses committed against the United States; but nothing herein shall be construed to increase the maximum pompensation now allowed by law to those officers. Se( . 1 895. Any person convicted by a court of compe- tent jurisdiction in a Territory, for a violation of the laws thereof, and sentenced to imprisonment, may. at the cost of such Territory, on such terms and conditions as may be EE VISED STATUTES OF THE UNITED STATES. 35 prescribed by such rules and regulations, be received, sub- sisted, and employed in such penitentiary during the term of his imprisoment. in the same manner as if he had been -convicted of an offense against the laws of the United States. Be it enacted, etc., That the legislative assemblies of the several Territories of the United States may make such provision for the care and custody of such persons as may be convicted of crime under the laws of such Territory as they shall deem proper, and for that purpose may authorize and contract for the care and custody of such convicts in any other Territory or State, and provide that such person or persons may be sentenced to confinement accordingly in such other Territory or State, and all existing legislative enactments of any of the Territories for that pur- pose are hereby legalized: Provided, That the ex- pense of keeping such prisoners shall be borne by the respective Territories, and no part thereof shall be borne by the United States. [Act June 16, 1880.] Be it enacted, etc.. That the nature of alcoholic drinks and narcotics, and special instruction as to their effects upon the human system, in connection with the several divisions of the subject of physiol- ogy and hygiene, shall be included in the branches of study taught in the common or public schools, and in the Military and Naval Schools, and shall be studied and taught as thoroughly and in the same manner as other like required branches are in said schools, by the use of text books in the hands of pu- pils where other branches are thus studied in said schools, and by all pupils in all said schools through- out the Territories, in the Military and Naval Acad- emies of the United States, and in the District of Columbia, and in all Indian and colored schools in the Territories of the United States. Sec. 2. That it shall be the duty of the proper officers in control of any school described in the fore- going section to enforce the provisions of this act; and any such officer, school director, committee, su- perintendent, or teacher who shall refuse or neglect to comply with the requirements of this act, or shall neglect or fail to make proper provisions for the in- struction required, and in the manner specified by the first section of this act, for all pupils in each and every school under his jurisdiction, shall be removed from office, and the vacancy filled as in other cases. Sec. 3. That no certificate shall be granted to any person to teach in the public schools of the District of Columbia or Territories, after the first day of Jan- uary, annvo Domini eighteen hundred and eighty- eight, who has not passed a satisfactory examination in physiology and hygiene, with special reference to . the nature and the effects of alcoholic drinks and other narcotics upon the human system. [Act May 20, 1880.] Care and cus- tody of convicts of any territory contracted for in any other terri- tory or state. Proviso. Alcoholic drinks and narcotics. Study of effects of, to be compul- sory in public schools, in Terri- tories and Dis- trict of Colum- bia, in Military and Naval Acade- mies, and color- ed and Indian Schools in Terri- tories . Enforcement. Punishment for failure to com- ply. Teacher's certif- icates. REVISED STATUTES OF THE UNITED STATES. CHAPTER TWO. OF PROVISIONS CONCERNING PARTICULAR ORGANIZER TERRI- TORIES. Boundaries of Idaho. Elections in Washington and Idaho. Delegate to Con- gress. Judicial power how vested. Probate courts in Idaho to have jurisdiction in certain civil and criminal cases ; but not in land, chancery, or di- vorce cases. Section 1902. Boundaries of Idaho. 1-905. Elections in Washington and Idaho. 1900. The Delegate to Congress must be a citizen of the United States. 1907. The Judicial power, how vested in all the Territories except Arizona. 1909. Writs of error to United States Su- preme Court. 1910. Jurisdiction of District Courts. 1914. Judges of Supreme Courts in Idaho and Montana to define Judicial Districts, etc. 1923. Extra session of Legislative As- sembly in Washington, Idaho, and Montana. 1 92 / . Jurisdiction of Justices of the Peace. Section 1935. Contingent expenses of certain Ter- ritories. 1940. In Washington, Idaho, and Mon- tana. 1911. No Payment of salaries in certain Territories until officers enter on their duties. L943. In Idaho and Montana, mileage of members. 1945. In Idaho and Montana, seat of Gov- ernment. 194(5. School lands in certain Territories. 1949. Agencies, etc., continued. 1931. Disbursing officers in Washington, Idaho and Montana, to give se- curity. Sec. 1902. All that part of the Territory of the United States, included within the following limits, to wit: Begin- ning at a point in the middle channel of the Snake river, where the northern boundary of Oregon intersects the same; then follow down the channel of Snake river to a point op- posite the mouth of the Kooskooskia or Clear Water river: thence due North to the forty-ninth parallel of latitude: thence East, along that parallel, to the thirty-ninth degree of longitude West of Washington ; thence South along that degree of longitude to the crest of the Bitter Root Moun- tains: thence Southward along the crest of the Bitter Root Mountains till its intersection with the Rocky Mountains: thence Southward along the crest of the Rocky Mountains to the thirty-fourth degree of longitude West of Washing- ton; thence South along that degree of longitude to the forty-second degree of North latitude: thence West, along that parallel, to the Eastern boundary of the State of Ore- gon; thence North, along that boundary, to the place of be- ginning, is created into a temporary government by the name of the Territory of Idaho. Sec. 1005. The elections in the Territories of Washington and Idaho for Delegates to the House of Representatives, shall be held bi-ennially, on the Tuesday next following the first Monday in November; and all elective Territorial. County, and Precinct officers shall hereafter be elected at the times herein specified, unless otherwise provided by legislation subsequent hereto, in either of such Territories. Sec1. 1906. The Delegate to the House of Representatives from each of the Territories of Washington, Idaho and Montana, must be a. citizen of the United States. Sec. L907. The judicial power in New Mexico, Utah. Washington, Colorado, Dakota, Idaho. Montana, and Wyom- ing, shall be vested in a Supreme Court, District Courts. Probate Courts, and in Justices of the Peace. Be it enacted, etc., That the probate courts of the Territory of Idaho, in their respective counties, in addition to their probate jurisdiction, be. and they are hereby, authorized to hear and determine all civil causes wherin the damage or debt claimed does not exceed the sum of five hundred dollars, exclusive of interest, and such criminal cases arising under the laws of the Territory as do not require the interven- REVISED STATUTES OF THE UNITED STATES. 37 tion of a grand jury: Provided, That they shall not have jurisdiction in any matter in controversy, when the title, boundary, or right to the peaceable posses- sion of land may be in dispute, or in chancery or di- vorce cases: And, provided further, That in all cases an appeal may be taken from any order, judgment, or decree of said probate courts to the district court. [Act December 13, L870.] Sec. L909. Writs of error and appeals from the final decisions of the Supreme Court of either of the Territories of New Mexico, Utah, Colorado, 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. <>]• of other competent witnesses, exceeds one thousand dol- lars, 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 tin's 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 involv- ing the question of personal freedom. Be it enacted, etc., That no appeal or writ of error shall hereafter be allowed from any judgment or de- cree in any suit at law or in equity in the Supreme Court of the District of Columbia, or in the Supreme Court of any of the Territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars. Sec. 2. That the preceding section shall not ap- ply to any case wherein is involved the validity any patent or copy-right, or in which is drawn question tin4 validity of a treaty or statute of or authority exercised under the United States: but all such cases an appeal or writ of error may Appeals. Writs of error to U. S. court. Of in an in be Appeals or writs of error froru judgments, etc., of supreme court, District of Columbia; or of Territory, not al- lowed unless amount involved be more tban $5,000. Not to apply to cases involving validity of pat- ent or copyright, treaty statute, or authority ex- ercised under United States. brought without regard to the sum or value in dis- pute. | Act March 3, L885. | Sec. 2. That the appellate jurisdiction of the Supreme Court of the United States over the judg- ment and decrees of said Territorial courts, in cases of trial by jury, shall be exercised by writ of error, and in all other eases by appeal according to such rules and regulations as to form and modes of pro- ceeding as tiie said Supreme Court have prescribed, or may hereafter prescribe: Provided, That on appeal, in- stead of the evidence at Large, a statement of the facts of the case in the nature of a special verdict. and also the rulings of the court on the admission or rejection of evidence when excepted to, shall be made and certified by the court below, and transmitted to the Supreme Court together with the transcript of the proceedings and judgment or decree; but no appel- late proceedings in said Supreme Court, heretofore taken upon any such judgment or decree, shall be invalidated by reason of being instituted by writ of error or by appeal: And provided further. That the Proviso, appellate court may make any order in any case Appellate juris- diction of Su- preme Court of United States, how exercised. ProceediDj appeal. REVISED STATUTES OF THE UNITED STATES, Jurisdiction of district courts under constitu- tion, &c. Judges of Su- preme Court in Idaho and Mon- tana to define Judicial dis- tricts, &c Extra sessions Legislative As- sembly in Wash- ington, Idaho, Montana. Jurisdiction of Justices' of Peace. Contingent ex- penses of certain Territories. In Washington, Idaho and Mon- tana. heretofore appealed, which may be necessary to save the rights of the parties: and that this act shall t apply to cases now pending in the Supreme Court of the United States where the record has al- ready been filed. [Act April 7, 1874.] 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 Consti- tution and laws of the United States, as is vested in the Cir- cuit 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 laws: 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. 1014. The Judges of the Supreme Courts of the Territories of Idaho and Montana, or a majority of them, shall, when assembled at their respective seats of Govern- ment, define the judicial districts of each of such Territories, and assign the Judges who may be appointed for each of such Territories to the several districts; and shall also fix the times and places for holding courts in the several counties or subdivisions in each of such judicial districts, and alter the times and places of holding the courts, as to them may seem proper and convenient: but not less than two terms a year shall be held at each place of holding court in the Ter- ritory of Montana, Sec. 1923. In each of the Territories of Washington, Idaho, and Montana, the Governor shall have power to call the Legislative Assembly together by proclamation, on an extraordinary occasion, at any time. Hereafter no extraordinary session of the Legisla- ture of any Territory, wherever the same is now7 au- thorized by law7, shall be called, until the reasons for the same have been presented to the President of the United States, and his approval thereof has been duly given. [Act June 22, 1874.] Sec. 1927. Justices of the Peace in the Territories of Col- orado. Washington. Idaho, Montana and Arizona, shall not have jurisdiction of any matter in controversy where the debt or sum claimed, exceeds three hundred dollars. [Act January 19, 1883.] Sec. L935. There shall be appropriated annually, one thousand dollars, to be expended by the respective Govern- ors, to defray the contingent expenses of New Mexico. Utah, Colorado, Dakota. Arizona. Idaho, Montana and Wy- oming, including the salary of the clerk in the Executive Departments of those Territories. Sec. L940. There shall be appropriated, respectively, for the Territories of Washington, Idaho and Montana, 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 Treasury, to defray the expenses of the Legislative Assembly, and' other incidental expenses. The Governor and Secretary of each Territory above speci- fied shall, in the disbursement of all moneys intrusted to them, be governed solely by the instructions of the Secre- tary of the Treasury, and shall semi-annually, account to BE VISED STATUTES OF THE UNITED STATES. 39 such Secretary for the manner in which such sums of mon- ey have been expended. Sec. 1941. ~No payment of salary shall be made to the Governor, Secretary, Chief Justice, and Associate Justices of Washington, Idaho, and Montana Territories until such officers have entered upon the duties of their respective ap- pointments. Sec. 1943. The members of the Legislative Assembly of Idaho and Montana Territories shall each receive four dol- lars for every twenty miles' travel in going to and return- ing from the sessions of their respective bodies, estimated according to the nearest usually traveled route. Sec. 1945. The Seat of government, when once fixed by the Governor and Legislative Assembly of Idaho and Mon- tana, respectively, shall not be at any time changed, except by an act of such Assembly, for each Territory, respective- ly, duly passed and approved, after due notice, at the first general election thereafter, by a majority of the legal votes cast on that question. Sec. 1946. Sections numbered sixteen and thirty-six, in each township of the Territories of New Mexico, Utah, Col- orado, Dakota, Arizona, Idaho, Montana and Wyoming- shall be reserved for the purpose of being' applied to schools in the several Territories herein named, and in the States and Territories hereafter to be erected out of the same. Sec. 1949. The existing agencies and superintendencies of the Indians inhabiting the Territories of Idaho and Mon- tana shall be continued with the same powers and duties now prescribed by law, except that the President may, at his discretion, change the location of the office of such agents or superintendents. Sec. 1951. All officers to be appointed by the President, by and with the advice and consent of the Senate, for the Territories of Washington, Idaho, and Montana, who. by virtue of the provisions of any law now existing, or which may be enacted by Congress, are required to give security for moneys that may be entrusted to them for disbursement, shall give security at such time and in such manner as the Secretary of the Treasury may prescribe. No payment of salary in certain Territories until officers enter on their duties. Mileage of mem- bers Legislature. Seat of govern- ment School lands in certain Terri- tories. Agencies, &c, continued. Disbursing offi- cers in Washing- ton, Idaho and Montana, to give security. ANALYSIS. REVISED STATUTES OF THE TERRITORY OF IDAHO GENERAL PROVISIONS. Applicable to all the Codes. PART FIRST.— POLITICAL. Sections. 1-20 Preliminary Provisions, 100 TITLE I. SEAT OF GOVERNMENT AND PUBLIC OFFICERS. Chapter I. Seat of Government, 105 II. Classifications of Public Officers., 110 III. Legislative Officers, . . . 115-160 IV. Executive Officers, 170-176 V. Of the Governor, 180-184 VI. Secretary of the Territory. 190-197 VII. Controller 205-222 VIII. Treasurer, 230-243 IX. Attorney General, 250-252 X. Clerk of the Supreme Court, and Clerks of the District Courts. 260-276 XL Notaries Public, 285-295 XII. Commissioners of Deeds 300-306 XIII. Disqualifications, 315-316 XIV. Restrictions upon the Residence of Officers, . . 325-327 XV. Nominations and Commissions of Officers, . . . 335-340 XVI. Oath of Office 350-357 XVII. Prohibitions applicable to certain Officers, . . . 365-371 XVIIL Salaries of Officers when Title is Contested, . . 380-381 XIX. Bonds of Officers 390-424 XX. Resignations, Vacancies, and the Mode of Sup- plying them 430-436 XXL Proceedings to Compel the Delivery of Books and Papers by Officers to their Successors, . . . 440-442 XXII. Miscellaneous Provisions 44S-454 41 42 ANALYSIS OF THE REVISED STATUTES OF IDAHO. TITLE II. OF ELECTIONS. Sections. Time of Holding Elections 465-467 Election Proclamations, 475-483 Miscellaneous Provisions. 490-493 Qualifications and Disabilities of Electors. . . . 500-5096 Election Precincts 510-512 Boards of Election. 520-524 Opening and Closing the Polls. 530-532 Poll Lists 540-541 Election Tickets and Ballots 545-557 Voting and Challenges 565-575 Canvassing and Returning the Vote 585-589 Canvass of Returns, Declaration of Result, Com- mission, and Certificates of Election, .... 600-605 Chapter I. II. 111. [V. V. VI. VII. VIII. IX. X. XI. XII. TITLE III. PUBLIC SCHOOLS. Chapter I. General School Funds 620-625 II. Territorial Superintendent 630-631 III. Territorial Treasurer t . . 640-642 IV. County Superintendent 650-653 V. New Districts 660 VI. Trustees 665-672 VII. Teachers 680-687 VIII. Teachers' Institutes 695-698 IX. Miscellaneous, 705-708 X. Bonds to Build or Provide School Houses. . . . 720-728 TITLE IV. ORDNANCE STORES. 740-743 TITLE V. PUBLIC INSTITUTIONS. Chaptek I. Insane Asylums, 750->2 II. Territorial Law Librarv 800-812 Chapter I. II. III. IV. V. TITLE VI. PUBLIC WAYS. Floating Timber - . 830-836 Highways 850-1001 Toll Roads 1O2O-1059 Public Ferries and Toll Bridges 1070-1108 Miscellaneous Provisions relating to Toll Roads. Bridges and Ferries 1120-1131 ANALYSIS OF THE REVISED STATUTES OF IDAHO. 43 TITLE VII. GENERAL POLICE OF THE TERRITORY. Sections,. Chapter I. Preservation of Public Health, 1150-1154 II. Unclaimed Property. 1160-1163 III. Marks and Brands/ 1170-1185 IV. Protection of Stock Growers, 1195-1197 V. Dogs Killing Sheep or Goats, 1205 VI. Sheep, 1210-1222 VII. Liabilities of Stock Ranchers 1230-1232 VIII. Stallions Running at Large, 1240-1243 IX. Weights and Measures, 1250-1251 X. Money of Account and Interest, 1260-1266 XL Auctioneers of Live Stock, 1275-1279 XII. Practice of Pharmacy 1282-1297 XIII. Practice of Medicine and Surgery, 1298-1298e XIV. Arbor Day. . .' 1299 TITLE VIII. ENCLOSURES AND TRESPASSING OF ANIMALS. Chapter I. Lawful Fences 1300-1311 II. Trespassing of Animals. 1320-1327 III. Enclosures of Reservoirs and Dumps of Quartz Mills 1335-1336 IV. Trespassing of Hogs. 1340-1344 TITLE IX. ESTRAYS. 1360-1370 TITLE X. REVENUE. Chapter I. Property liable to taxation 1400-1401 II. Definitions 1405 III. Levy of Taxes 1410-1414 IV. Assessment of Property 1425-1461 V. Equalization of Taxes 1475-1485 VI. Duties of the Auditor in Relation to Revenue, . 1500-1505 VII. Collection of Property Taxes 1515-1576 VIII. Poll Taxes 1600-1619 TX. Licenses 1630-1652 X. Sett]e7nents with the Controller and Payments into the Territorial Treasury 1670-1685 XI. Miseellaneous Provisions 1700-1711. 44 ANALYSIS OF THE REVISED STATUTES OF IDAHO. Chapter I. II. III. IV. V. VI. TITLE XL THE GOVERNMENT OF COUNTIES. Sections. Counties as Bodies Corporate, 1730-1735 The Board of County Commissioners, .... 1745-1791 County Officers, 1810-2098 Salaries and Fees of Office 2120-2159a Other County Charges, 2100-2161 The County Poor 2170-2181 TITLE XII. DISPOSAL OF TOWN SITES. 2200-2214 TITLE XIII. TOWNS AND VILLAGES. •>^4-2250 PART SECOND. —CIVIL. Preliminary Provisions 2400 TITLE I. PERSONS. 2405-2412 TITLE II. MARRIAGE. Chapter I. The Contract of Marriage 2420-2440 II. Divorce, 2450-2483 III. Husband and Wife , . . . 2493-2512 TITLE III. PARENT AND CHILD. Chapter I. Children by Birth 2530-2535 II. By Adoption 2545-2554 TITLE IV. CONCERNING CORPORATIONS. Chapter I. General Provisions 2575-2(553 II. Railroad Corporations . 2663-2684 III. Bridge, Ferry, Flume, and Boom Corporations, 2094-2090 IV. Telegraph and Telephone Corporations, . . . 2700-2703 V. Water and Canal Corporations 2710-2713 VI. Homestead Corporations, 2720-2729 VII. Insurance Corporations 2740-2759 VI TI. Religious, Social, and Benevolent Corporations, 2760-2766 ANALYSIS OF THE REVISED STATUTES OF IDAHO. 45 TITLE IV. Concerning Corporations.— Continued. Sections. Chap. IX. Agricultural Fair Corporations 2775-2778 X. Gas Corporations, 2787-2791 XI. Land and Building* Corporations, 2796-2805 TITLE V. PROPERTY AND OWNERSHIP. Chapter I. General Provisions, 2825-2830 II. Estates in Real Property, 2850-2861. III. Rights and Obligations of Owners, 2875-28X6 IV. Personal property 2890-2891 TITLE VI. TRANSFERS. Chapter I. Transfers in General, 2900-2907 II. Transfers of Real Property, 2920-2937 III. Acknowledgments, 2950-2976 IV. Recording Transfers 2990-3004 V. Unlawful Transfers. 3015-3023 TITLE VII. HOMESTEADS. Chapter I. General Provisions 3035-3O59 II. Homestead of a Head of the Family 3070-3073 III. Homestead of other Persons 3085-3088 TITLE VIII. MINES AND MINING. Chapter I. Location of Lode Mining Claims, 3100-3107 II. Placer Claims, .* 3120-3122 III. Rights of Way and Easements for the Devel- opment of Mines 3130-3142 TITLE IX. WATER RIGHTS AND IRRIGATION. Chapter I. Water Rights, 3155-3167 II. Right of way for ditches, 3180-3190 III. Distribution for Irrigation, 3200-3205 TITLE X. CONTRACTS AND OBLIGATIONS. Chapter I. General Provisions 3220-3231 II. Sales 3245-3252 46 ALVSIS OF THE REVISED STATUTES OF IDAHO. TITLE XL PARTNERSHIPS. Sections. Chapter \. Special Partnership, 3270-3294 H. Mining Partnership 3300-3309 TITLE XII. LIEXS. Chapter 1. Liens in General 3325-3339 1 1 . Mortgages in General, 3350-3365 III. Mortgage of Real Property. 3375-3377 IV. Mortgage of Personal Property. 3385-3398 V. Pledge 3410-3421) \\. Other liens 3440-3440 TITLE XIII. NEGOTIABLE INSTRUMENTS. Chapter I. Negotiable Instruments in General. .... 34(55-3507 II. Bills of Exchange, 3520-3565 III. Promissory Notes. 3575-3578 IV. Checks, 3590-3591 V. Instruments made Negotiable by Indorsement, 3600-3001 VI. Redemption of County Indebtedness, .... 3(">02-3607 TITLE XIV. NUISANCE. ' Chapter I. General Principles. 3620-3625 II. Public Nuisances, . 3630-3635 III. Private. Nuisances 3640-3642 PART THIRD.- -REMEDIAL. CODE OF CIVIL PROCEDURE. Preliminary Provisions, 3800-3801 PART I— Courts of Justice, TITLE I. ORGANIZATION AND JURISDICTION. 'Chapter I. In General, 3810-3811 II. ( )f the Supreme Court, 3815-3821 III. Of the District Courts, . 3830-3833 IV. Of the Probate Courts, 3840-3844 V. Of Justices Courts 3850-3854 VI. General Provisions respecting Courts of Justice. 3860-3875 ANALYSIS OF THE REVISED STATUTES OF IDAHO. 47 TITLE II. OF JUDICIAL OFFICERS. Sections. Chapter I. In General 3885-3886 II. Powers of Judges at Chambers 3890 III. Disqualifications of Judges 3900-3903 IV. Incidental Powers and Duties of Judicial Offi- 3910-3914 cers, 3910-:)!i]i V. Miscellaneous Provisions Respecting Courts and Judicial Officers 3920-3925 TITLE III. OF JURORS. 3935-3075 TITLE IV. ATTORNEYS AND COUNSELORS' AT LAW. 3990-4014 PART II— Civil actions. TITLE I. OF THE FORM OF CIVIL ACTIONS. 4020-4022 TITLE II. OF THE TIME OF COMMENCING ACTIONS. Chapter I. In General, 4030 II. For the Recovery of Real Property 4035-4246 III. For the Recovery of Property other than Real, 4050-4063 IV. General Provisions. 4068-4080 TITLE III. OF THE PARTIES TO CIVIL ACTIONS. 4090-4113 TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. 4120-4128 TITLE V. OF THE MANNER OF COMMENCING CIVIL ACTIONS. 4138-4149 TITLE VI. OF THE PLEADINGS IN CIVIL ACTIONS. Chapter I. In General 4160-4162 II. The Complaint, 4167-4169 III. Demurrer to the Complaint 1174-4178 48 ANALYSIS OF THE REVISED STATUTES OF IDAHO. TITLE VI. Of the Pleadings in Civil Actions.— Continued. Sections . Chap. IV. The Answer, -4183-4188 V. Demurrer to Answer, 4193-4194 VI. Verification of Pleadings. 4199-4202 VII. General Rules of Pleading, 4207-4220 VIII. Variance, Mistakes, and Amendments, . . . 4225-4231 TITLE VII. OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. Chapter I. Arrest and Bail. 4240-4266 II. Claim and Delivery of Personal Property, . . 4271-4282 III. Injunctions 4287-4297 IV. Attachments 4302-4324 V. Receivers, 4329-4334 VI. Deposit in Court 4339-4341 TITLE VIII. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. Chapter I. Judgment in General, 4350-4355 II. Judgment Upon Failure to Answer, .... 4360 III. Issues — The Mode of Trial and Postponement, 4365-4373 IV. Trial by Jury \ . 4378-4400 V. Trial by the Court 4405-4409 VI. Of References and Trials by Referees. . . . 4414-4421 VII. Exceptions. 4426-4433 VIII. New Trials, 4438-4445 IX. Manner of Giving and Entering Judgments. . 4450-4461 TITLE IX. OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. Chapter I. The Execution, 4470-4499 II. Proceedings Supplementary to the Execution, 4504-4511 TITLE X. ACTIONS IN PARTICULAR CASES. Chapter I. Actions for Foreclosure of Mortgages, . . . 4520-4524 II. Actions for Nuisance, Waste and Willful Tres- pass in Certain Cases on Real Property, . . 4529-4533 III. Actions to Determine Conflicting Claims to Real Property, and Other Provisions Relating to Actions Concerning Real Estate, . . . . 4538-454? IV. Possessory Actions for Public Lands, .... 4552-4556 V. Actions for the Partition of Real Property, . . 4560-4606 VI. Actions for the Usurpation of an Office or Fran- chise 4611-461H ANALYSIS OF THE KE VISED STATUTES OF IDAHO. 49 TITLE XL OF PROCEEDINGS IN ACTIONS IN PROBATE COURTS. Sections. 4629* TITLE XII. OF PROCEEDINGS IN JUSTICES' COURTS. Chapter I. Place of Trial in Justices' Courts, 4639-4645 II. Manner of Commencing Actions in Justices^ Courts, 4650-4661 III. Pleadings in Justices' Courts, 4666-4675 IV. Provisional Remedies in Justices' Courts, . . 4680-4690 V. Judgment by Default, 4695-4696 VI. Time of Trial and Postponement 4701-4705 VII. Trials in Justices' Courts, 4711-4720 VIII. Judgments other than by Default in Justices' Courts ' 4725-4736 IX. Executions from Probate and Justices' Courts, 4741-4745 X. Contempts in Justices' Courts, 4750-4754 XL Dockets of Probate Court and Justices of the Peace, 4759-4766. XII. General Provisions Relating to Probate and Jus- tices' Courts. . . 4771-4778 TITLE XIII. OF APPEALS IN CIVIL ACTIONS. Chapter I. Appeals in General, 4800-4802 II. Appeals to Supreme Court from District Court, 4807-4826 III. Appeals from Probate Courts to District Court in Probate Matters 4831-4833- IV. Appeals from Probate and Justices' Courts to District Courts 4838-4844 TITLE XIV. OF MISCELLANEOUS PROVISIONS. Chapter I. Proceedings Against Joint Debtors, .... 4860-4865 II. Offer of Defendant to Compromise1 4870 III. Inspection of Writings, 4875 IV. Motions and Orders, 4880-4884 V. Notices, and Filing and Service of Papers, . . 4889-4895 VI. Of Costs, 4900-4918 VII. General Provisions 4923-4936. 4 50 ANALYSIS OF THE REVISED STATUTES OF IDAHO. PART III -Of Special Proceedings of a Civil Nature. Sections. Preliminary Provisions 40.55-4956 TITLE I. OF WRITS OF REVIEW, MANDATE AND PROHIBITION. Chapter I. Writ of Review, 4001-4971 II. Writ of Mandate 4076-4989 III. Writ of Prohibition. 4004-4997 1 V. These Writs may Issue and be Heard at Cham- bers . 5000 V. Rides of Practice and Appeals, 5005-5006 TITLE II. OF CONTESTING CERTAIN ELECTIONS. 5026-5042 TITLE III. OF SUMMARY PROCEEDINGS. Chapter I. Confession of Judgment without Action, . . 5060-5063 II. Submitting a Controversy without Action, . . 5068-5070 III. Discharge of Persons Imprisoned on Civil Process \ . 5075-5086 I V. Summary Proceedings for Obtaining Possession of Real Property, 5091-5109 TITLE IV. OF THE ENFORCEMENT OF LIENS. 5125-5139 TITLE V. OF CONTEMPTS. 5155-5168 TITLE VI. VOLUNTARY DISSOLUTION OF CORPORATIONS. 5185-5191 TITLE VII. OF EMINENT DOMAIN. 5210-5229 TITLE VIII. OF CHANGE OF NAMES. 5245-5248 TITLE IX. OF ARBITRATIONS. 5260-5269 ANALYSIS OF THE IlEVISED STATUTES OF IDAHO. 51 TITLE X. OF PROCEEDINGS IN PROBATE COURTS. Sections Chapter I. Of Jurisdiction 5290-529] II, Of Probate of Wills. . . • 5296-5331 III. Of Executors and Administrators, their Letters. Removals and Suspensions, 5340-5412 IV. Of the Inventory and Collection of the Effects of Decedents 5420-5434 V. Of the Provisions for the Support of the Fami- ly, and of the Homestead, 5440-545:> VI. Of Claims Against the Estate. 5460-5483 VII. Of Sales and Conveyances of Property of Dece- dent 5490-554:* VIII. Of the Powers and Duties of Executors and Administrators, and of the Management of Estates, 5550-551 ;o IX. Of the Conveyance of Real Estate by Executors and Administrators, in Certain Cases, . . . 55(55-5575 X. Of Accounts Rendered by Executors and Ad- ministrators, and of the Payment of Debts. 5580-5616 XI. Of the Partition, Distribution, and Final Settle- ment of Estates 5621-5650 XII. Of Orders. Decrees. Process. Minutes. Records, Trials and Appeals 5655-5674 XIII. Of Public Administrator, 5680-5695 XIV. Succession. 5700-5717 XV. Wills, ' 5725-5700 XVI. Of Guardian and Ward 5770-5829 TITLE XL OF SOLE TRADERS. TITLE XII. OF PROCEEDINGS IN INSOLVENCY PAPxT IV.-OF EVIDENCE. 5850-5860 5s;5-5«):}-> TITLE I. OF THE KINDS AND DEGREES OF EVIDENCE. ^Chapter I. Judicial Knowledge 5950-5951 II. Witnesses 5956-5960 III. Public Writings 5965-5984 IV. Private Writings 5989-5999 V. Indispensable Evidence 6005-6011 52 ANALYSIS OF THE REVISED STATUTES OF IDAHO. TITLE II. OF THE PRODUCTION OF EVIDENCE. Sections. Chapter I. By Whom to be Produced 6030 II. Means of Production 6035-6047 III. Mode of Taking- the Testimony of Witnesses. . 6052-6085 TITLE III. OF THE RIGHTS AND DUTIES OF WITNESSES. 6090-6095 TITLE IV. MISCELLANEOUS AND GENERAL PROVISIONS. Chapter I. Tender and Receipt 0110-0111 II. Proceeding to Perpetuate Testimony 6116-6122 III. Administration of Oaths and Affirmations, . . 0127-0131 IV. Fees of Jurors and Witnesses 0130-0141 V. District Courts 6146-6150 PART FOURTH —PENAL. Preliminary Provisions 0300-0310 PART I— Of Crimes and Punishments. TITLE I. ( >F PERSONS LIABLE TO PUNISHMENT FOR CRIME. 6330-633] TITLE II. OF PARTIES TO CRIME. 0,341-03-14 TITLE III. OF CRIMES AGAINST THE ELECTIVE FRANCHISE. 0354-030? TITLE IV. OF CRIMES BY AND AGAINST THE EXECUTIVE POWER. 6380-6392 TITLE V. OF CRIMES AGAINST THE LEGISLATIVE POWER. 0410-0415 ANALYSIS OF THE REVISED STATUTES OF IDAHO. 53 TITLE VI. OF CRIMES AGAINST PUBLIC JUSTICE. Sections. Chapter I. Bribery and Corruption 6430-6436 II. Rescues, 6446-6447 III. Escapes and Aiding- Therein 6452-6458 IV. Forging. Stealing. Mutilating and Falsifying Judicial and Public Records and Documents, 6464-6468 V. Perjury and Subornation of Perjury 0478-6480 ATI. Falsifying Evidence 6500-6505 VII. Other Offenses Against Public Justice. . . . 6510-6535 VIII. Conspiracy, . 6540-6541 TITLE VII. OF CRIMES AGAINST THE PERSON. Chapter I. Homicide 0560-6572 II. Mayhem. (3577-6578 III. Kidnapping 6584-6585 IV. Robbery. 0590-6592 V. Attempts to Kill 0597-0598 VI. Assault with Intent to Commit other Felony, 6703-6700 VII. Duels and Challenges 0711-6716 VIII. False Imprisonment 0721-6722 IX. Assault and Battery, 0727-6734 X. Libel 0737-6745 TITLE VIII. OF CRIMES AGAINST THE PERSON AND AGAINST PUBLIC DE- CENCY AND GOOD MORALS. Chapter I. Rape, Abduction and Seduction 6765-6772 II. Abandonment and Neglect of Children. . . . 0782-6784 III. Abortions 0794-6795 IV. Child Stealing, • 6800 V. Bigamy, Incest, and the Crime Against Nature. 0S05-6812 VI. Disturbing Religious Meetings 0S20-6822 VII. Opium Smoking 6830-6832 VIII. Indecent Exposure, Obscene Books and Prints, and Disorderly Houses 6840-6843 IX. Gaming, . 6850-6852 X. Other Injuries to Persons 6860-6888 TITLE IX. OF CRIMES AGAINST THE PUBLIC HEALTH AND SAFETY. 6908-6933 TITLE X. OF CRIMES AGAINST THE PUBLIC PEACE. 6950-6963 54 WALYSTS OF THE REVISED STATUTES OF IDAHO. TITLE XL OF OFFENSES AGAINST THE PUBLIC REVENUE. Sections. 6973-6986 TITLE XII. OF CRIMES AGAINST PROPERTY. Chapter I. Arson 7000-7009 II. Burglary 7014r-7017 III. Having Possession of Burglarious Instruments and Deadly Weapons, 7022-7023 IV. Forgery and Counterfeiting 7028-7040 V. Larceny 7045-7060 VI. Embezzlement 7065-7076 VII. Extortion - 7080-7086 VIII. False Personation and Cheats 7090-7100 IX. False Weights and Measures, 7105-7111 X. Frauds in the Management of Corporations, . 7114^7127 XL Malicious Injuries to Railroad Bridges, High- ways. Bridges and Telegraphs 7132-7139 TITLE XIII. MALICIOUS MISCHIEF. 7150-7172 TITLE XIV. MISCELLANEOUS CRIMES. Chapter I. Violation of Game and Fish Laws ; L85-7197 II. Of other Miscellaneous Offenses 7205-7214 TITLE XV. GENERAL PROVISIONS. . PART II— OF CRIMINAL PROCEDURE. Preliminary Provisions 7350-7358 TITLE I. OF THE PREVENTION OF PUBLIC OFFENSES. Chapter I. Of Lawful Resistance 7368-7370 II. Of the Intervention of the Officers of Justice. 7375 -7376 III. Security to Keep the Peace 7380-7394 IV. Suppression of Riots 7400-7408 ANALYSIS OF THE REVISED STATUTES OF IDAHO. 55 TITLE II. PROCEEDINGS FOR THE REMOVAL OF PUBLIC OFFICERS. Sections. Chapter I. Of Impeachments 7425-7440 II. Of the Removal of Civil Officers 7445-7459 TITLE III. OF THE PROCEEDINGS IN CRIMINAL ACTIONS, PROSECUTED BY INDICTMENT, TO THE COMMITMENT, INCLUSIVE. Chapter I. Of the Local Jurisdiction of Public Offenses, . 7480-7405 II. Of the Time of Commencing Criminal Actions,, 7500-7504 III. The Information, 7509-7511 IV. The Warrant of Arrest, 7516-7533 V. Arrest, by Whom and How Made, 7538-7554 VI. Retaking After an Escape or Rescue 7559-7500 VII. Examination 7565-7589 TITLE IV. OF PROCEEDINGS AFTER COMMITMENT AND BEFORE INDICT- MENT. Chapter I. Preliminary Provisions 7000-7002 II. Formation of Grand Jury, 7007-7024 III. Powers and Duties of a Grand Jury 7630-7642 IV. Presentment and Proceedings Therein. . . . 7047-7653 TITLE V. OF THE INDICTMENT. Chapter I. Finding and Presentment of the Indictment. . 7665-7670 IT. Pleadings— Indictment 7675-7098 TITLE VI. AFTER INDICTMENT AND BEFORE TRIAL. Chapter I. Of the Arraignment. 7710-7724 II. Setting Aside the Indictment 7730-7734 III. Demurrer 7740-7750 IV. Plea, 7755-7703 V. Removal of the Action Before Trial 7708-7774 VI. The Mode of Trial 7780-77S2 VII. Formation of Trial Jury 7787-7790 VIII. Postponement of the Trial - 77'.i.r> TITLE VII. DURING THE TRIAL AND BEFORE JUDGMENT. Chapter I. Challenging the Jury 7815-7848 II. The Trial. 7855-7889 III. Conduct of the Jurv 7900-7000 ANALYSIS OF THE REVISED STATUTES OF IDAHO. TITLE VII During the Trial and Before Judgment.— Continued. Sections. Chap. IV. The Verdict, 7915-7934 V. Bill of Exceptions, 7040-7946 VI. New Trials, 7 050-7953 VII. Arrest of Judgment 7960-7963 TITLE VIII. OF JUDGMENT AND EXECUTION. Chapter I. The Judgment . 7080-7996 II. The Execution SO05-8022 Chapter I. II. III. IV. Chapter I. II. III. IV. V. VI. VII. VIII. IX. X. XL XII. XIII. TITLE IX. OF APPEALS TO THE SUPREME COURT. Appeals, when Allowed and how Taken, and the Effect Thereof, 8040-8051 Dismissing the Appeal, S056-8057 Argument of the Appeal 8062-8065 Judgment Upon Appeal, 8070-8077 TITLE X. MISCELLANEOUS PROCEEDINGS. Bail 8 100-8136 Who may be Witnesses in Criminal Actions, . S 141-8143 Compelling the Attendance of Witnesses, . . 8L48-8155 Examination of Witnesses Conditionally, . . 8160-8171 Examination of Witnesses on Commission, . . s 176-8189 Inquiry into the Insanity of the Defendant, . . 8194-8200 Compromising Public Offenses by leave of Court, 8205-8207 Dismissal of the Action for want of Prosecution or Otherwise, 8212-8217 Proceedings Against Corporations, 8222-8229 Entitling Affidavits 8234 Errors and Mistakes 8236 Disposal of Property Stolen or Embezzled, . . 8238-8243 Reprieves, Commutations and Pardons, . . . 8248-8253 TITLE XL OF PROCEEDINGS IN PROBATE AND JUSTICES' COURTS AND APPEALS TO THE DISTRICT COURT. Cttapter 1. Proceedings in Probate and Justices' Courts, . 8280-8314 II. Appeals to District Court, . 8320-8327 ANALYSIS OF THE REVISED STATUTES OF IDAHO. 57 TITLE XII. OF SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. Sections. Chapter I. Of the' Writ of Habeas Corpus, 8340-8372 II. Of Coroners' Inquests, and Duties of Coroners, 8377-8386 III. Of Search Warrants, 8390-8409 IV. Proceedings Against Fugitives-from Justice, . 8415-8426 TITLE XIII. PROCEEDINGS FOR BRINGING PERSONS IMPRISONED IN THE TERRITORIAL PRISON, OR JAIL OF ANOTHER COUNTY. BEFORE A COURT. 8435 TITLE XIV. DISPOSITION OF FINES AND FORFEITURES, COSTSJ 8440-8441 part iii— of the territorial prison and County Jails. TITLE I. OF THE TERRITORIAL PRISON. TITLE II. OF COUNTY JAILS. 8500-8512 8525-8547 AN ACT TO REVISE AND CONSOLIDATE THE GENERAL STAT- UTES OF THE TERRITORY OF IDAHO. Be it enacted by the Legislative Assembly of the Territory of Idaho. as follows: REVISED STATUTES OF THE TERRITORY OF IDAHO. GENERAL PROVISIONS. APPLICABLE TO ALL THE CODES. Section 1. Title and divisions ol the Revised Stat- utes. When Revised Statutes take effect. Not retroactive. Construction of the Revised Statutes. Provisions similar to existing laws, how construed. Tenure of offices preserved. Construction of repeal as to certain of- ficers. Actions, etc., not affected by Revised Statutes. Limitations shall continue to run. Holidays. 10. Section 11. Computation of time. 12. Certain acts not to be done on holidays. 13. Seal defined. 14. Joint authority. 15. Words and phrases. 16. Certain terms used in the Revised Stat- utes denned. 17. Statutes, laws, or rules inconsistent with, repealed. 18. Common law, when in force. 19. Prior acts repealed. Effect of Revised Statutes. 20. Effect of Code upon past offenses. Section 1. These statutes consisting of Part First, Political; Part Second, Civil; Part Third, Remedial; Part Fourth, Penal, constitute the Revised Statutes of the Territory of Idaho. Sec. 2. These Revised Statutes take effect at twelve o'clock, noon, of the first day of June, eighteen hundred and eighty-seven. Sec. 3. No part of these Revised Statutes is retroactive, unless expressly so declared. Sec. 4. The rule of the common law that statutes in de- rogation thereof are to be strictly construed, has no appli- cation to these Revised Statutes. The Revised Statutes establish the law of this Territory respecting the subjects to which they relate, and their provisions and all proceed- ings under them are to be liberally construed, with a view to effect their objects and to promote justice. Sec. 5. The provisions of these Revised Statutes, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments. Sec. 6. All persons who at the time these Revised Stat- utes take effect hold office under any of the acts repealed, continue to hold the same according to the tenure thereof, except those offices which are not continued by these Revised Statutes. Sec. 7. When any office is abolished by the repeal of any act, and such act is not in substance re-enacted or con- tinued, in the Revised Statutes, such office ceases at the time the Revised Statutes take effect. Sec. 8. No action or proceeding commenced before the Revised Statutes take effect, and no right accrued, is af- fected by their provisions, but the proceedings therein must 61 Titles and divis- ion of the Re- vised Statutes. When Statutes take effect. ^■IVH^aqk, O.Cfi Not retroacti C. C. P. Sec V:f' / Construction of the Revised Statutes. C. C. P. Sec. 3. 3 Provisions sim- ilar to existing laws, how con- strued. C. C. P. Sec. 4. Tenure of office* preserved. Construction of repeal as to cer- tain officers. Actions, etc., not affected by the Revised Stat- utes. C. C. P. Sec. :>. 6~~ L, 7 % I 1^ POLITICAL CODE OF IDAHO TERRITORY. • PART EIEST.-POLLTICAL. PRELIMINARY PROVISIONS. Section 100. Title of Part First of the Revised Statute! and how cited. Section 100. Part First of these Revised Statutes shall Title of part fir8fc be known as the Political Code of the Territory of Idaho, and of Revised stat- whenever cited, enumerated, referred to, or amended, may be designated simply as the Political Code, adding, when necessary, the number of the section. TITLE I. SEAT OF GOVERNMENT AND PUBLIC OFFICERS. CHAPTER I. Skat of Government. Section 105. Seat of Government, where located. Section 105. The seat of government of this Territory Location of seat is at Boise City, in the County of Ada. co^\Tlranw8?nlJ, S57. CHAPTER II. Classification of Public Officers. ION 110. Classification of public officers. Section 110. The public officers of this Territory are officers, ciaasifi- classified as follows : cation of- ]. Legislative; Executive; ■k Judicial; 1. Ministerial officers and officers of the Courts; But this classification is not to be construed as defining the legal powers of either class. 67 Tit. I. Ch. HI. l.l <.ISLATIVE OFFICEKS. §§ 115-119 Number and designation. Term of office. Election of mem- bers of Legisla- ture. Apportionment of members of Council. 13Ses., 'JO. Apportionment of members of House of Repre- sentatives. 1 3 Ses. 26. CHAPTER III. Legislative Officers. li'N 1 L5. Number and designation. lit!. Term of office. 1 17. Election of members of tbe Legisla- ture. 118. Apportionment of members of tbe Council. 119. Apportionment of members of tbe House of Representatives. 120. Time and place of meeting TJ1. Certificate of election, evidence of right to seat. 122. Organization of Legislature. . l'j;>. What officers of, may administer oaths. 124. Duties of officers at close of session. 125. Who may contest. 126. Contested election to legislature. No- tice of contest. 127. Answer of notice. 123. Testimony. 1 29. Depositions. 130. Testimony taken places. 131. Subpoenas. 132. Same. 133. Depositions taken by consent. 134. Refusal to testify. 135 Examination. 136. Examination, bow conducted. at two or more Section 137. Production of papers. 138. Per diem and mileage of witnesses. 139. Fees of officers. 140. Adjournment. , 141. Return of testimony. 142. Depositions. 143. Further evidence may be taken. 144. Expenses of contested cases. 145. Subpoenas by President or Speaker. 146. Service of subpoenas. 147. Contempt. 148. Compelling attendance. 149. Witnesses not to be held to answer criminally. Refusal to testify. 150. Bills received by the Governor must be indorsed. 151. Approval of Bills. 152. Bills returned without approval. Ifi3. Return, when House not in sessiou. 154. Bills remaining with the Governor more than three days. 155. When statutes take effect. 156. When joint resolutions take effect. 157. Effect of amendment. 158. No repealed act revived by repealing the Act repealing it. 159. Repealing a law creating offense does not bar punishment. 160. When Territorial officers are to report. Sec. 115. The Legislature consists of : 1 . A Council, of twelve members. 2. A House of Representatives, of twenty -four members. Sec. 116. The term of office of members of the Legis- lature is two years from the first day of December, next after their election. Sec. 117. The members of the Legislature must be elected at the general election in the year eighteen hundred and eighty-eight, and at the general election every two years thereafter. Sec. 118. The members of the Legislative Council are apportioned as follows: To the county of Ada, one member; to the counties of Ada and Boise, one member; to the county of Alturas, two members; to the counties of Bear Lake, Oneida and Cassia, one member; to the county of Bingham, one member; to the counties of Bingham and Oneida, one member; to the county of Idaho, one member; to the counties of Lemhi and Custer, one member; to the county of Nez Perce, one mem- ber; to the counties of Owyhee and Washington, one mem- ber; to the counties of Shoshone and Kootenai, one member. Sec. 119. The members of the House of Representatives are apportioned as follows: To the county of Ada, three members; to the county of Alturas, four members; to the county of Bear Lake, one member; to the county of Bingham, two members; to the counties of Bingham and Custer, one member; to the county of Boise, one member; to the county of Cassia, one mem- ber; to the county of Custer, one member; to the county of Idaho, one member; to the county of Lemhi, one member; to the county of Nez Perce, three members; to the county of Oneida, one member; to the county of Owyhee, one member;1 to the county of Shoshone, one member; to the counties of Shoshone and Kootenai, one member; to the county of Washington, one member. 68 120-1-2S LEGISLATIVE OFFICERS. Tit. I. Ch.IIL Sec*. 120. The Legislature must assemble at the seat of Government on the second Monday in December, eighteen hundred and eighty-eight, and on the second Monday in De- cember every two years thereafter. Sec. 121. The certificate of election is prima facie evi- dence of the right to membership. Sec. 122. At the hour of twelve o'clock M., on the day appointed for the meeting of any regular session of the Leg- islature, the presiding officer, or in his absence the Chief Clerk, of each House of the last session, must call the same to order and preside until a presiding officer is chosen, or in case of the absence of both of said officers the senior mem- ber present must perform said duties; all members-elect ]) resent having certificates of election from the clerk of the Board of County Commissioners of their respective coun- ties, and no other person has the right to participate in the organization of the respective Houses. Neither House must organize or transact any business, but must adjourn from day to day, until a majority of all the members au- thorized by law to be elected are present. Sec. 123. The President and President pro tern, of the Council, and the Speaker and Speaker pro tern, of the House, may administer the oath of office to any member, and to the officers of their respective bodies. The members of any com- mittee may administer oaths to witnesses in any matter under examination. Sec. 124. The clerks, at the close of each session of the Legislature, must mark, label, and arrange all bills and pa- pers belonging to the archives of their respective Houses, and deliver them, together with all the books of both Houses, to the Secretary of the Territory, who must certify to the reception of the same. Sec. 125. The right of any person declared elected to a seat in the Legislative Assembly may be contested by any qualified voter of the county or district to be represented by such person. Sec. 126. When any person intends to contest an elec- tion of any member of the Legislative Council, or House of Representatives, he must, within ten days after the result of such election is determined by the Board of Canvassers, give notice in writing to the member whose seat he designs to contest, of his intention to contest the same, and in such notice specify the particular grounds upon which he relies in the contest. Sec. 127. Any member upon whom the notice, men- tioned in the foregoing section is served, must within ten days after the service thereof, answer such notice, admit- ting or denying the facts alleged therein, and stating specif - ically any other grounds upon which he rests the validity of his election, and serve a copy of his answer upon the con- testant. Sec. 128. In such contested election cases the time al- lowed for taking testimony is twenty-five (-35) days, and the testimony must be taken in the following order: The contestant may take? testimony during the first ten days: the return member during the succeeding ten days; and the contestant may take testimony in rebuttal only dur- ing the remaining five days of said period. 09 Time and place of meeting. Certificate of election evidence of right to seat. Organization of Legislature, 10 Ses., 31. What officer may administer oaths. "Huties of Clerks at close of ses- sion. Who may con- test. Contested elec- tion to Legisla- ture. 11 Ses., 259. Notice of con- test. Answer of no- tice. 1 1 Ses., 25!). Testimony. 11 Ses., 260. Tit. I. Ch. III. LEGISLATIVE OFFICERS. 8S 11 Ses., 260. Testimony taken at two or more places. 11 Sea., 260. Subpoenas. 11 Ses., 2t0. Same. 11 Ses. 200. Depositions ta- ken by consent. 11 Ses., 260. Refusal to testi- fy. J I Ses., 261. Examination. 1 1 Ses., 261. Examination, in. w oonduc i ' <1. ■ i Sen., 261. Sec. 129. The party desiring to take a deposition un- der the provisions of this Act, must give the opposite 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 places of residence, and of the name of an officer before whom the same will be taken. The notice must be personally served upon the opposite party, or upon any agent or attorney authorized by him to attend the tak- ing of testimony or cross examining of witnesses in the mat- ter of such contest, if by the use of reasonable diligence such service can be made; but if personal service cannot be made, the service may be made by leaving a duplicate of the no- tice at the usual place of abode of the opposite party. The notice must be served so as to allow the opposite party suf- ficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sundays, and the day of service. Testimony in rebuttal may be taken on three days' notice. Sec. 130. Testimony in contested election cases may be taken at two or more places at the same time. Sec. 131. When any contestant or returned member is desirous of obtaining testimony respecting a contested elec- tion, he may apply for a subpoena, to any District Judge of the Territory, the Paobate Judge, or any Justice of the Peace, Notary Public, Mayor, Recorder, or other civil officer authorized to administer oaths within the county where the witness resides or may be found. Sec. 132. The officer to whom the application author- ized by tlie preceding section is made, must thereupon, issue his writ of subpoena, directed to all such witnesses as are named to him, requiring their attendance before the officer named in the notice, at some time and place named in the subpoena, in order to be examined respecting the contested election. Sec. 133. It is competent for the parties, their agents or attorneys, authorized to act in the premises, by consent in writing, to take depositions without notice; also, by such written consent, to take depositions (whether upon or without notice) before any officer or officers authorized to take depo- sitions in civil actions. Any written consent, given as aforesaid, must be returned with the depositions. Sec. 134. Any person avIio, having been summoned in the manner above directed, refuses or neglects to attend and testify, unless prevented by sickness or unavoidable necessity, forfeits the sum of twenty dollars, to be recov- ered, with costs of suit, by the party at whose instance the subpoena was issued, and for his use, and is guilty of a mis- demeanor. Sec. 135. 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 provided in this chapter must then and there be examined on oath by the officer before whom the depositions are to be taken. Sec. 136. The officer must cause the testimony of the witnesses to be reduced to writing, together with the ques- tions proposed by the parties, or their agents, in his pres- ence, and in the presence of the parties, or their agents, if 70 5§ 137-145 LEGISLATIVE OFFICERS. Tit. 1. Ch. III. attending, and to be duly attested by the witnesses respect- ively. Sec. 137. The officers have power to require the pro- duction of papers; and on the refusal or neglect of any per- son to produce and deliver up any paper or papers in his pos- session pertaining to the election, or to produce and deliver- up certified or sworn copies of the same in case they be offi- cial papers, such person is guitly of a misdemeanor. Sec. 138. Every witness attending by virtue of any sub- poena herein directed to be issued is entitled to receive the sum of two dollars for each day's attendance, and the fur- ther sum of twenty-five cents for every mile necessarily traveled in going and returning; such allowance must be ascertained and certified by the officer taking the examina- tion, and paid by the party at whose instance such witness was summoned. Sec. 139. Officers performing services, in a contested election case, may charge and collect from the party at whose instance such services were performed, the same fees as are allowed for similar services in civil cases. Sec. 140. The taking of the testimony may, if so stated, in the notice, be adjourned from day to day. Sec. 141. All officers taking testimony to be used in a contested election case, must, when the same is completed, certify and carefully seal and forward the same by mail, ad- dressed to the Clerk of the Supreme Court at Boise City, Idaho; and must also endorse upon the envelope the name of the case in which it is taken, together witli the name of the party in whose behalf it is taken, and subscribe such en- dorsement. The Clerk of the Supreme Court must immedi- ately on the organization of the House at the session, if the House be not then organized, transmit the same unopened to that body to which the contest relates. Sec. 142. At any time after notice of contest has been given, and before the trial thereof before the proper branch of the Legislature, either party may also take depositions, to be read on the trial, in like manner and under the same rules as are allowed and required in the cases of depositions to be read on the trial of civil actions; and such depositions, when taken, must be sealed up by the officer taking the same, and directed to the Clerk of the Supreme Court, who must keep the same unopened, and deliver them to the pre- siding officer of the House in which the contest is to be tried. Sec. 143. The House before which the contest is pend- ing may take such other evidence in the case as it deems material. Sec. 144. No payment must be made by the Legisla- tive Assembly, or by either House thereof, to either party to a contested case, for expenses incurred in prosecuting or defending the same. Sec. 145. A subpoena requiring the attendance of any witness before either House of the Legislature or a commit- tee thereof may be issued by the President of the Council, Speaker of the House, or the chairman of any committee before whom the attendance of the witness is desired: and it is sufficient if: 71 Production of papers. 11 Ses., 261. Per diem and mileage of wit- nesses. U Ses., 261. Fees of officers. Adjournment. 11 Ses., 262. lieturn of testi- mony. 11 Ses., 262. Depositions. Further evidence may be taken. Expenses of con- tested cases. 11 Ses., 262. Subpoenas by the President or Speaker. Tit. I. Ch.fi/. LEGISLATIVE OFFICERS. §§ 14G-153 Service of Bub- Contempt. Compelling at- tendance. I . It states whether the proceeding is before the Counci or House, or a committee; '!. It is addressed to the witness; 3. It requires the attendance of such witnesses at a time and place certain; 4. It is signed by the President of the Council; Speaker of the House, or chairman of a* committee. Sec. 146. The subpoena may be served by any person who might be a witness in the matter, and his affidavit that he delivered a copy to the witness is evidence of service. Sec. 147. If any witness neglects or refuses to obey such subpoena, or appearing, refuses to testify, the Council or House may, by resolution entered on the Journal, com- mit him for contempt. Sec. 148. Any witness neglecting or refusing to at- tend in obedience to subpoena may be arrested by the ser- jeant-at-arms and brought before the Council or House. The only warrant of authority necessary to authorize such arrest is a copy of a resolution of the Council or House, signed by the presiding officer, and countersigned by the clerk. Sec. 149. No statement made by any such witness on such examination before either House, or a committee, is competent evidence in any criminal proceeding against such witness; nor can such witness refuse to testify to any fact or to produce any paper, touching which he is examined, for the reason that his testimony or the production of such paper may tend to disgrace him, or render him infamous. Nothing in this section exempts any witness from prose- cution and punishment for perjury committed by him on such examination. Sec. 150. Every bill must, as soon as delivered to the Governor, be indorsed as follows: "This bill was received by the Governor this day of , eighteen ." Sec. 151. When the Governor approves a bill he must Refusal to testi- fy- Bill must be en- dorsed by Gov- ernor. Approval of bills. Bills returned without appro- val. Return when House not in ion. set his name thereto, with the date of his approval. Sec. 152. When a bill has passed both Houses of the Legislature and is returned by the Governor without his signature and with objections thereto, and upon a reconsid- eration passes both Houses by a two-thirds vote, it must be authenticated as having become a law by a certificate in- dorsed thereon, or attached thereto in the following form: "This bill having been returned by the Governor with his objections thereto, and after reconsideration having passed both Houses, by a two-thirds vote, it has become a law, this day of , A. D. ," which indorse- ment, signed by the President of the Council, and Speaker of the House, is a suffiicient authentication thereof. Such bill must then be deposited with the laws, in the office of the Secretary of the Territory. Sec. 153. If. on the day the Governor desires to return a bill without his approval and with his objections thereto to the House in which it originated, that House has adjour- ned for the day (but not for the sesion), he may deliver the bill with his message to the presiding officer, clerk, or any member of such House, and such delivery is as effectual as though returned in open session, if the Governor, on the first dav the House is again in session, by message notifies it 72 £§ 151-170 EXECUTIVE OFFICERS. TILL Ck.IV. of such delivery and of the time when, and the person to whom such delivery was made. Sec* 154. Every bill which has passed both Houses of the Legislature, and has not been returned by the Governor within three days, thereby becoming a law, is authenticated by the Governor causing- the fact to be certified thereon by the Secretary of the Territory in the following form: '"This bill having remained with the Governor three days (Sun- days excepted), and the Legislature being in session, it has become a law this day of A. D. " which certificate must Bills remaining with the Govern- or more than three days. be signed by the Secretary of this Territory and deposited with the laws in his office. Sec. 155. Every statute1, unless a different time is pre- scribed therein, takes effect on the sixtieth day after its pas- sage. Sec. 156 Every joint resolution, unless a different time is prescribed therein, takes effect from its passage. Sec. 157. Where a section or part of a statute is amend- ed, it is not to be considered as having been repealed and re-enacted in the amended form; but the portions which are not altered are to be considered as having been the law from the time when they were enacted, and the new provisions are to be considered as having been enacted at the time of the amendment. Sec. 158. No act or part of an act, repealed by another Act of the Legislature, is revived by the repeal of the repeal- ing act without express words reviving such repealed act or part of an act. Sec. 159. The repeal of any law creating a criminal of- fense does not constitute a bar to the indictment and punish- ment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment and punishment is expressly declared in the repealing act. Sec. 160. All officers, boards of officers and commission- er-, required by law to make reports to the Governor or Legislature, must send such reports to the Governor twenty days prior to the day on which the Legislative Assembly is appointed to meet in regular session, who may cause the same, together with his message, to be printed prior to the beginning of each session. They must also when required, make special reports and furnish such information as the I rovernor may require. When Statutes take effect. 5 Sea., 162. When resolu- tions take effect. 5 Sea., 1G2. Effect of amend- ment . Act repealed not revived by- repeal of repeal- ing act. Comp. Iaw8, 858. Repeal of laws creating offen- ses, effect of. Comp. laws, 858. When Territo- rial officers to report. Act Jan'y 12, 1887. CHAPTER IV. Executive Officers. Section Section 1 To. Designation and number of executive 17'5. Authority of. officers. 174. Vacancies. 171. Territorial executive officers, how ap- 175. Janitor. pointed. 176. Night watchman. 172. Capitol trustees. Section 170. The number and designation of the civil Designation and executive officers are as follows: exSutivS'offi- A ( farvernor* cers. A Secretary of the Territory; A Controller; A Treasurer; An Attorney General ; 73 Tit. I. Ch. IV. EXECUTIVE OFFICERS. §§ 171-176 Territorial exec- utive officers, how appointed. UxoUp'fLtrus. 'Mi |p«^ to Authority of. {p^ 10 Vacancies. Janitor. Night watch- man. A Superintendent of Public Instruction; A Territorial Librarian ; Three Directors of the Insane Asylum: A Medical Superintendent of the Insane Asylum. Such other officers as fill offices created by, or under the authority of the general laws, for the government of coun- ties, cities and towns, or of the charters, or special laws re- specting the same, or of the health, school, election, road, or revenue laws. Sec1. 171. It is the duty of the Governor during each bi- ennial session of the Legislative Assembly to nominate, and by and with the consent of the Legislative Council, to ap- point suitable and qualified persons to the offices of Territo- rial Treasurer, Territorial Controller, and Attorney General, who may hold their respective offices until the end of the next bi-ennial session of the Legislative Assembly, and until their respective successors are appointed and qualified. Sec. 172. (Sec. 1.) The Governor of Idaho Territory is hereby authorized to appoint a Board of Trustees, three in number, for the custody and maintainance of the Capitol buildings and grounds. Sec. .173. (Sec 2.) That the Board of Trustees shall have full control of the building and grounds, to collect all rents for use of building due the Territory, to fix the amount of such rent, as in their best judgment will be just and equita- ble to all parties concerned; to receive and disburse any moneys appropriated by the Legislature, otherwise for the best interests of the Territory in furnishing rooms, improve- ments of grounds, etc. Sec. 174. (Sec. 3.) The Governor shall have power to fill any vacancy that may occur in their Board during the next two years, and report to the ensuing Legislature. Sec. 175. (Sec. 4.) The Trustees shall have power to ap- point a competent person for janitor, at a salary not exceed- ing seventy-five dollars per month ; the janitor to have direct supervision over the whole building; take care of all the offices, halls and rooms, except Legislative halls and Supreme Court chambers during these sessions; and shall attend to the warming of the building, after the adjournment of the Legislature, commencing third quarter of 1888. Sec. 176. (Sec. 5.) The Trustees are impowered to em- ploy a competent person as night watchman, at a salary not exceeding sixty dollars per month; the night watchman shall take charge of the building at 8 o'clock p. m. and re- main in or around the building until G o'clock a. m. It shall be his duty to watch and guard the premises during the night; to visit every office or room occupied during the day, at frequent intervals, and, when necessary, to attend to the steam heater during the night. [Act Feby. 9, 1887, in effect immediately. | 74 §§ 180-182 OF THE GOVERNOR. Tit. 1. Ch. V, CHAPTER V. Of the Governok. Section 180. Powers and duties of Governor. 181. To transmit list of appointments to Legislature. Section 182. Records in office of. 183. Persons acting as Governor. 184. Expenses for postage, etc. Section 180. In addition to those prescribed by the Con- gress the Governor has the power, and may perform the du- ties prescribed in this and the following sections: 1. To supervise the official . conduct of all executive and ministerial officers. 2. To see that all offices are filled and the duties there- of performed, or in default thereof, apply such remedy as the law allows; and if the remedy is imperfect, acquaint the Legislature therewith at its next session. 3. To make the appointments and supply the vacancies mentioned in this code. i. He is the sole official organ of communication be- tween the Government of this Territory and the govern- ment of any other State or Territory, or of the United States. 5. Whenever any suit or legal proceeding is pending against this Territory, or which may affect the title of this Territory to any property, or which may result in any claim against the Territory, he may direct the Attorney General to appear on behalf of the Territory. 6. He may require the Attorney General, or District At- torney of any county to inquire into the affairs or manage- ment of any corporation existing under the laws of this Territory. 7. He may require the Attorney General to aid any Dis- trict Attorney in the discharge of his duties. 8. He may offer rewards, not exceeding one thousand dollars each, payable out of the Territorial treasury, for the apprehension of any convict who has escaped from the Territorial prison, or of any person who has committed, or is charged with the commission of an offense, punishable with death. 9. To perform such duties respecting fugitives from jus- tice as are prescribed by the Penal Code. 10. To issue and transmit election proclamations, as pre- scribed in this Code. 11. He may require any officer or board to make special reports to him, upon demand, in writing. 1 'I. He has such other powers and may perform such other duties as are devolved upon him by this Code, or any other law of this Territory. Sec. 181. Within ten days after the meeting of the Legis- lature the Governor must transmit to it a list of all the ap- pointments made by him and not before communicated. Sec. 182. The Governor must cause to be kept the fol- lowing records: 1. A register of all applications for pardon or for commu- tation of any sentence, with a list of the official signatures and recommendations in favor of each application. 2. A register of statements in capital cases made to him. with his action thereon. Powers and du- ties of Governor. Iff/ H£ ffi yS Comp. laws, •412. To transmit list of appointments. Records in office of. 75 Tlt.l. 67/. VI. OF THE SECRETARY. $$183-191 Persous acting an Governor. Expense of postage, express- age, etc. 9 Ses.,!)7. :>. An account of all his disbursements of Territorial mon- eys, and of all rewards offered by him for the apprehension of criminals and persons charged with crime. 1. A register of all appointments made by him. with date of commission, names of appointee and predecessor. 5. A record of all persons confined in the Territorial pris- on, showing the name of the convict, his age and general appearance, when and where convicted, and of what crime,. tne time of his sentence, and when such time expires. Sec. 183. Every provision in the laws of this Territory in relation to the powers and duties of the Governor, and in relation to acts and duties to be performed by others toward him, extends to the person performing for the time being the duties of the Governor. Sec. 184. The sum of one hundred dollars is appropriat- ed and placed at the disposal of the Governor of Idaho Ter- ritory annually to defray expenses of postage and expres- age, and other expenses attending the transmission of books, maps and public documents for the Territory, and the Controller is hereby authorized and required, on the certificate of the Governor that the bill is correct, to draw his warrant on the treasurer for such sum as may be certi- fied to, not exceeding one hundred dollars per annum; and it is the duty of the treasurer to pay such warrants out of any moneys belonging to the Territory and not otherwise appropriated. CHAPTER VI. Of the Secretary of the Territory. Section 190. Custody of records. 191 . Duties of Secretary of the Territory. 192. Distribution of statutes and journals. 193. Distribution of reports of Supreme Court. Section 194. To mark books distributed. 195. Expenses, etc., how paid. 196. Fees. 197. OfBcial bond. Custody of rec- ords. Duties of Secre- tary of the Ter- ritory. Sec. 190. The Secretary of the Territory is charged with the custody. 1. Of all acts and Resolutions passed by the Legislature. 2. Of the Journals of the Legislature. 3. Of the Great Seal. 4. Of all books, records, deeds, parchments, maps, and papers, kept or deposited in his office pursuant to law. Sec. 191. It is the duty of the Secretary of the Ter- ritory: 1 . To keep a register of and attest the official acts of the Governor. 2. To affix the Great Seal, with his attestation, to com- missions, pardons, and other public instruments to which the official signature of the Governor is required. 3. To record in proper books all conveyances made to the Territory, and all articles of incorporation filed in his office. 4. To receive and record in proper books the official bonds of all the officers whose bonds are required to be filed with him. 5. To take and file in his office receipts for all books dis- tributed bv him. 76 §§ 192-196 OF THE SECRETARY. Tit. 1. Ch. VI. 6. To certify to the Governor the names of those per- sons who have received at any election the highest num- ber of votes for any office the incumbent of which is com- missioned by the Governor. 7. To furnish on demand to any person paying the fees therefor a certified copy of all, or any part of any law, record, or other instrument filed, deposited, or recorded in his office. 8. To present to the Legislature, at the commence- ment of each session thereof, a full account of all purchases made and expenses incurred by him on account of the Ter- ritory. Sec. 192. Immediately after the laws, resolutions, and journals are bound, the Secretary of the Territory must dis- tribute the same as follows: 1. To each department of the Government at Wash- ington and of the Government of this Territory, one copy. 2. To the Library of Congress and the Territorial Library, two copies each. 3. To each of the States and Territories one copy. 4. To our Delegate in Congress, and to each of the Sudges of the Supreme Court of this Territory, one copy. 5. To each member of the Legislature, at the ses- sion when such laws and journals were adopted, one copy. 6. Of the laws alone, to the Auditor of each Coun- ty, in the cheapest and most expeditious manner, to be by the sheriff distributed under the directions of the Auditor, one copy for the Board of Commissioners, one copy to each county officer and each Justice of the Peace. Sec. 193. He must distribute of the bound volumes of the decisions of the Supreme Court, as soon as he receives them: 1. To each State, one copy. 2. To the Library of Congress and the Territorial Libra- ry, two copies each. 3. To each department of this Territory, and to each of the Supreme and Probate Judges, one copy. 4. To each District Attorney, one copy. 5. To the Reporter of the decisions, ten copies. Sec. 194. The Secretary must indelibly mark each book distributed to officers in this Territory (except Legislative officers and the Reporter) with the name of the county to which, and the official designation of the officer to whom it is sent. Such books remain the property of the Terrtory, and must be, by the officers receiving them, delivered to their successors. Sec. 195. The expenses incurred by him, in carrying into effect the provisions of the three preceding sections, must be audited by the comptroller and paid out of any moneys specially appropriated for that purpose. Sec. 196. The Secretary of the Territory, for services performed in his office, may charge and collect the following fees: 1. For a copy of any law, resolution, record, or other document or paper on file in his office, twenty cents per folio. 2. For affixing certificate and seal of the Territory, one dollar. Distribution of statutes and journals. Distribution of Supreme Court, reports. Books distribu- ted, to be marked. Expenses, bow paid. Fees. 77 Tit. I. Ch. VII. CONTROLLER. §§ 197-205 4 ^v 0\ ^(U|(, JO Official bond. .:. For filing articles of incorporation, five dollars. 4. For recording articles of incorporation, twenty cents per folio. 5. For issuing each certificate of incorporation, three dollars. 6. For receiving and recording each official bond, twenty cents per folio. 7 . For eacli commission, or other document signed by the Governor and attested by the Secretary, (pardons excepted) five dollars. 8. For searching records and archives of the Territory, one dollar. But no member of the Legislature or Territorial officer can be charged for any search relative to matter appertaing to the duties of their offices; nor must they be charged any fee for a certified copy of any law or resolution passed by the Legislature, relative to their official duties. Sec. 197. The Secretary of the Territory must execute an official bond to the Territory, in the sum of two thousand dollars, and must receive no fees under the laws of the Ter- ritory until such bond, approved by the Governor, is filed with the Controller. CHAPTER VII. Controller. General duties of Comp. laws, 798. Section 214. What claims audited and paid. 215. Claims referred to Legislature. 216. Same. 217. Delinquents to be reported to Legis- lature. 218. Salary audited and paid. 219. Books and records open to Legisla- ture. 220. Seal, copies of records evidence. 221. Salary. 222 .Official Bond. Section 205. General duties of. 206. Certficate of settlement. 207. Special duties connected with School Fund. 208. Order in which warrants must be drawn. 209. Proceedings against defaulters. 210. Printing of blanks. 211. Claims against the Territory. 212. Controller may examine witnesses on oath. 213. Vouchers and accounts preserved. Section 205. It is the duty of the Controller: 1. To Superintend the fiscal concerns of the Territory. 2. To report to the Governor at least twenty days pre- ceding each regular session of the Legislature, a state- ment of the funds of the Territory, its revenues, and of the public expenditures during the two preceding fiscal years, together with a detailed estimate of the expenditures to be defrayed from the Treasury for the two ensuing fiscal years, specifying therein each object of expenditure, and distin- guishing between such as are provided for by permanent or temporary appropriations and such as must be provided for by a new statute, and suggesting the means from which such expenditures are to be defrayed. 3. To accompany his bi-ennial report with tabular statements,* showing: 1. The amount of each appro- priation for the two preceding fiscal years, the amounts ex- pended, and the balance, if 'any. 2. The amount of revenue chargeable to each county for such years, the amount paid, and the amount unpaid: or due therefrom. 4. When requested, to give information in writing to either House of the Legislature relating to the fiscal affairs of the Territory or the duties of his office. 78 R205 CONTROLLER. Tit. I. Gh.VIl. 5. To suggest plans for the improvement and manage- ment of the puhlic revenues. 6. To keep and state all accounts in which the Territory is interested. 7. To keep an account of all warrants drawn upon the Treasurer, and a separate account under the head of each specified appropriation, showing at all times the unexpend- ed balance of such appropriation. 8. To keep an account between the Territory and the Treasurer, and therein charge the Treasurer with the balance in the Treasury when he came into office, and with all moneys received by him, and credit him with all war- rants drawn on and paid by him. 9. To keep a register of warrants, showing the Fund upon which they are drawn, the number, in whose favor, for what service, the appropriation applicable to the payment thereof, when the liability accrued, and a receipt from the person to whom the warrant is delivered. 10. To audit all claims against the Territory in cases where there are sufficient provisions of law for the payment thereof. 11. To examine and settle the accounts of all persons indebted to the Territory, and to certify the amount to the Treasurer, and upon presentation and filing of the Treasurer's receipt therefor to give such person a discharge and charge the Treasurer therewith. 12. In his discretion to require any person presenting an account for settlement to be sworn before him, and to an- swer, orally or in writing, as to any facts relating to it. 13. To require all persons who have received any moneys belonging to the Territory and have not accounted therefor to settle their accounts. 14. In his discretion to inspect the books of any per- son charged with the receipt, safe keeping, or disbursement of public moneys. 15. In his discretion to require all persons who have received moneys or securities, or have had the disposition or management of any property of the Territory of which an account is kept in his office, to render statements thereof to him; and all such persons must render such statement at such times and in such form as he may require. 10. To direct and superintend the collection of all moneys due the Territory, and institute suits in its name for all official delinquences in relation to the assessment, collec- tion, and payment of the revenue, and against persons who by any means have become possessed of public money or property and fail to pay over or deliver the same, and against all debtors of the Territory, of which suits the Courts of Ada County have jurisdiction, without regard to the residence of the defendants. 17. To draw warrants on the Treasurer for the pay- ment of moneys directed by law to be paid out of the Trea- sury; but no warrant must be drawn unless authorized by law. Every warrant must be drawn upon the Fund out of which it is payable, and specify the service for which it is drawn, and when the liability accrued. is. To furnish the Territorial Treasurer with a list of warrants drawn upon the Treasury. 79 Tit 1. Ch. VII. CONTROLLER. §§ 206-210- Act, Feb. :{. 1—7 Certificate of set- tlement. Special duties connected with school fund. Order on which* warrants must be drawn. Proceedings against default- ers. L9. To have printed and forwarded to the Treasurer of each county blank Territorial licenses. 20. To authenticate with his official seal all drafts and warrants drawn by him, and all copies of papers issued from his office. 21. To provide and transmit to the .Assessor of each coun- ty the blank forms on which to make to the Controller, the annual report and statement of property as provided by sec- tion fourteen hundred and sixty -two (1,462.) Sec. 206. The certificate mentioned in subdivision 11 of Section 205 must show by whom the payment is to be made, the amount thereof, and the Funds into which it is to be paid. and must be numbered in order, beginning with number one at the commencement of each fiscal year. Sec. 207. The Controller must keep a separate account of the School Fund, and of the interest and income thereof, together with such moneys as may be raised by special tax or otherwise for school purposes. Sec. 208. All warrants for claims which have been audited by and filed in his office must be drawn in the order of their allowance. Sec. 209. Whenever any person has received moneys, or has money or other personal property which belongs to the Territory, or has been instructed with the collection, manage- ment, or disbursement of any moneys, bonds, or interest ac- cruing therefrom, belonging to, or held in trust, by the Ter- ritory, and fails to render an account thereof to, and make settlement with the Controller within the' time prescribed by law, or when no particular time is- specified fails to render such account and make settlement, or who fails to pay into the Territorial Treasury any moneys belonging to the Terri- tory, upon being required so to do by the Controller, within twenty days after such requisition, the Controller must state an account with such person, charging twenty-five per cent damages, and interest at the rate of ten per cent per annum from the time of failure; a copy of which account in any suit therein is prima facie evidence of the things therein stated. But in case the Controller cannot for want of information state an account, he may, in any action brought by him, aver that fact, and allege generally the amount of money or other property which is due to or which belongs to the Terri- tory. Sec. 210. The Territorial Controller must, on the first day of August in each year, advertise that he will receive sealed proposals for contracts, for the printing and delivery at the Controller's office in Boise City, of all blanks required by said office during the year next ensuing, and such notice must state the date for delivery of such blanks; a descrip- tion and schedule must be made out, and kept by the Con- troller in his office for the inspection of any person desirous of making proposals for the printing of the same. Said notice must be published in two newspapers, published in the Territo- ry, at least once a week, for at least four successive weeks, and must state the time that all proposals will be opened; the proposals must be publicly opened and the award made to the lowest bidder, at the office of the Controller by the Ter- ritorial Treasurer and Controller, on the day and hour named in the notice, which must be within five days from Printing of blanks. Comp. laws, 825. 9Ses., to. 80 §§ 211-214 CONTROLLER. Tit. I. Ch. VIL the last publication; and the blanks must be delivered within sixty days after the award; but this section does not authorize the expenditure of more than one thousand dol- lars in any one year. The person to whom the contract is awarded must, within ten days thereafter, file with said Controller, a bond in the sum of two thousand dollars, with at least two good and sufficient sureties to be approved by the Controller, and conditioned for the faithful performance of his contract in accordance with the terms thereof. And if he fails or refuses to give such bond, the contract must be awarded to the next lowest bidder, or the Controller may advertise for other proposals as he may think best. All blanks of every description, required to be furnished by the Controller, under any of the laws of the Territory, must be printed under a contract in accordance with the provisions of this chapter, and not otherwise; and no warrant must be drawn by the Controller upon the Territorial Treasurer for any sum for printing, except as herein provided. Sec. 211. All persons having claims against the Terri- claims against tory must exhibit the same, with the evidence in support thereof, to the Controller, to be audited, settled and allowed within two years after such claims shall accrue, and not comp. laws, afterward; and in all suits brought in behalf of the Territory, 80° no debt or claim must be allowed against the Territory as a set off but such as have been exhibited to the controller, and by him allowed or disallowed, except only in cases where it i^ proved to the satisfaction of the court, that the defendant, at the time of trial, is in possession of vouchers which he could not produce to the Controller; or, that he was prevent- ed from exhibiting the claim to the Controller by absence from the Territory, sickness or unavoidable accident; but the Controller shall in no case, audit a claim or set off which is not provided for by law. Sec. 212. The Controller, whenever he may think it controller may necessary to the proper settlement of any account, may ex- nets^^atn. amine the parties, witnesses, and others, on oath or affirma- tion, touching any matter material to be known in the settle- gg{?p- law8» ment of such account, and for that purpose may issue writs of summons, and compel witnesses to attend before him and give evidence in the same manner and by the same means allowed by law to courts of record. Sec. 213. All accounts, vouchers, and documents set- vouchers and tied, or to be settled, by the Controller must be preserved in served! s l>re his office, and copies thereof, authenticated by the official comp. laws, seal of the Controller, shall be given to any person interest-' 800' ed therein who requires the same. Sec. 214. In all cases of specific appropriations, sala- what claims ries, pay and expenses, ascertained and allowed by law, pJjStedand found due to individuals from the Territory, when audited, the Controller must draw warrants upon the Treasury for the Comp. laws, amount; but in cases of unliquidated accounts and claims, 8u,) the adjustment and payment of which are not provided for by law. no warrants must be drawn by the Controller, or paid by the Treasurer until appropriation is made by law for that purpose, nor must the whole amount drawn for and paid for any purpose or under any one appropriation ever exceed the amount appropriated. 6 81 Tit. I. Ch. I'll. CONTROLLER. §§ 215-222 Oomp. lai 801. Same. Coiup. laws, B01 Delinquents *o be reported to the Legislature. Comp. laws, 801. Salary of Con- troller. 14 see. Deputy . 14 ses. Books and rec- ords open to Legislature. Comp. laws, 801. Seal, copies of records evi- dence. Comp. laws, 801. Salary of Con- troller, 12 ses., an. Official bond, Comp. laws, 797. Sec. 215. If any person interested is dissatisfied with the decision of the Controller, or any claim, account, or credit, it is the duty of the Controller, at the request of such person, to refer the same, with the reasons of his decision, to the Legislative Assembly. Sec. 216. In all cases where thelaw recognizes a claim for money against the Territory, and no appropriation is made by law to pay the same, the Controller must audit and settle the same, and give the claimant a certificate of the amount thereof, under the official seal, if demanded, and re-' port the same to the Legislative Assembly, with as little delay as possible. Sec. 217. The Controller must report to the Legislative Assembly, within ten days after the commencement of each regular session, a list of all the collectors of revenue, and other holders of public money, whose accounts remain un- settled for six months after they ought to have been settled according to law, and the reasons therefor. Sec. 218. The salary of the Controller must be audited by the Territorial Treasurer, and paid by him in quarterly installments out of any money in the Treasury not other- wise appropriated, and he shall receive no other compensa- tion whatever except the cost of necessary stationery, pos- tage and expressage, for the Controller's and School Superin- tendent's business, and under no claim or pretext whatever, shall the Territorial Controller receive any other or greater compensation or moneys than as above enumerated; The Controller is authorized to appoint a deputy who shall receive no compensation. Act Feb. 10, 1887, in effect June 1, 1887. Sec. 219. All the books, papers, letters, and transactions pertaining to the office of Controller, are open to the inspec- tion of a committee of the Legislative Assembly, or either branch thereof, who shall examine all the Controller's ac- counts. Sec. 220. The Controller must keep a seal of office, for the authentication of all papers, writings, and documents required by law to be certified by him, and copies so authen- ticated and certified, of all papers and documents lawfully deposited in his office, must be received in evidence as the original. Sec. 221. The annual salary of the Controller, to include all services rendered ex officio or as member of any board or commission as now required, or which may be by la ay hereafter devolved upon him, is one thousand eight hun- dred dollars. Sec. 222. The Controller must execute an official bond in the sum of ten thousand dollars. 82 §§ 230-234 TREASURER. Tit. I. Ch. VIII. CHAPTER VIII. Treasurer. Section 238. Registration of Warrants. 239. Copies of Paper Evidence. 240. Refusal to Pay Warrant. 241. Compensation of . 242. Governor niay Count Money. 243. Publication of Notices for Outstand- ing Warrants, Redemption of . Section' 230. General Duties. 231. Limitations upon receipt of money. 232. General Fund. 233. Salary of Treasurer. 234. Official Bond of. 235. Payment of Warrants. 23G. Payment in Part. 237. Books and Papers Open to Inspection. Section 230. It is the duty of the Treasurer: ' 1. To receive and keep all moneys belonging to the Ter- ritory not required to be received and kept by some other person ; 2. To file and keep the certificates of the Controller de- livered to him when moneys are paid into the Treasury; 3. To deliver to each person paying money into the treas- ury a receipt showing the amount, the sources from which the money accrued, and the. funds into which it is paid, which receipts must be numbered in order, beginning with number one at the commencment of each fiscal year; 4. To pay warrants drawn by the Controller out of the funds upon and in the order in which they are drawn; 5. Upon payment of any warrant, to take upon the back thereof the receipt of the person to whom it is paid, and file and preserve the same; 6. To keep an account of all moneys received and dis- bursed; 7. To keep separate accounts of the different Funds; 8. To report to the Controller, on the last day of each month, the amount disbursed for redemption of bonds and in payment of warrants during the month; which report must show the date and number of such bonds and war- rants, the funds out of which they were paid, and the bal- ance of cash on hand in the treasury to the credit of each Fund; 9. At the request of either House of the Legislature, or of any committee thereof to give information in writing as to the condition of the Treasury or upon any subject relat- ing to the duties of his office. 10. To report to the Governor at the time prescribed in this code, the exact balance in the Treasury to the credit of the Territory, with a summary of the receipts and pay- ments of the Treasury during the two preceding fiscal years; 11. To authenticate with his official seal all writings, and papers issued from his office; 12. To discharge such other duties as may be imposed upon him by law. Sec. 231. He must receive no money into the Treasury unless accompanied by the certificate of the Controller. Sec. 232. The General Fund consists of moneys re- ceived into the Treasury and not specially appropriated to any other Fund. Sec. 233. The annual salary of the Territorial Treasurer is one thousand dollars. Sec. 234. The Treasurer must execute an official bond in the sum of sixty-five thousand ($65,000.00) dollars. Act Feb. 10, 1887, in effect immediately. 83 General duties, Comp. laws, 848. Limitation upon receipt. General fund. Salary of Treas- urer. Bond of Treas- urer. 14 sea. Tit I ( h. VII f. TREASURER. §§ 235-241 Payment ol war- rants. Payment in part, 3 19. Books and pa- pers open to in- spection. 8 ses., 850. Registration of warranto . , ^i i Copies of paper, evidence. 8 ses., 850. Refusal to pay warrants. J50. ipensatiou of treasurer. $51 . Sec. 235. The Territorial Treasurer must pay warrants on any of the several funds in his office in their regular or- der, as prescribed by law. Sec. 236. When any warrant is presented for payment, and there is not money on hand to pay the warrant in full, the Treasurer must pay to the holder thereof such sums only as may be in the fund upon which the warrant is drawn, and divide the warrant, retaining that portion on which the number of the warrant is, and require the owner of the warrant to receipt for the amount received, on the back of said portion; the other part of the warrant must be returned to the owner thereof, with the following endorse- ment on the back: No. (in figures), number of warrant writ- ten, total amount of warrants to date, amount paid on warrant, balance due on warrant on the date of partial pay- ment, date of partial payment, name of treasurer. And said portion of warrant, so endorsed, constitutes a charge against the fund on which it wras originally drawn for the amount of the balance as shown by the endorsement, and is payable out of the first money in said fund; and the above provided division of any warrant -in no way destroys its validity; but nothing in this chapter must be construed as allowing the payment of interest on interest. Sec. 237. The books, papers, letters and transactions pertaining to the office of Treasurer, are at all times during office hours, open to the inspection of a committee of the Legislative Assembly, or either branch thereof, to examine and settle all accounts, or to take copies (3f the same, and to count all moneys; and when the successor of any such treasurer is appointed and qualified, the Territorial Control- ler must examine and settle all the accounts of such treas- urer, remaining unsettled, and give to him a certified state- ment, showing the balance of moneys, securities, and effects for which he is accountable, and which have been delivered to his successor, and report the same to the Legislative As- sembly. Sec. 238. It is the duty of the Territorial Treasurer to keep a register of the Territorial warrants presented to him and not paid for want of funds, in the order of their presen- tation, and write across the back of the same: "Presented and not paid for want of funds ;" said endorsement to be dated and signed by the Treasurer, and said warrants draw interest at the rate of ten per cent per annum, from the date of presentation, until paid. Sec. 239. The Treasurer must keep a seal of office for the authentication of all of all papers, writing and docu- ments required by law to be certified by him ; and copies, so authenticated and certified, of all papers and documents lawfully deposited in his office, must be received in evidence as the original documents. Sec 240. If the Territorial Treasurer willfully and un- lawfully refuses to pay any warrant lawfully drawn upon the treasury, he forfeits and must pay fourfold the amount, to be recovered by action against the Treasurer and his sure- ties on his official bond, or otherwise. Sec. 241. The Treasurer may receive as a compensation for his services, the sum of one thousand dollars per annum, 1 be audited quarterly bv the Territorial Controller, and re- 84 242-250 ATTORNEY GENERAL. Tit. L Ch. IX. tained by said Treasurer, and said sum is in full and only compensation for all services rendered by the Territorial treasurer, under all laws now in force or which may be hereafter passed, imposing duties on said treasurer, includ- ing his duties as Territorial Prison Commissioner, and his duties under an act "to provide for funding the indebtedness of the Territory of Idaho," approved January 12, 1886, and said Treasurer must not be allowed any pay whatever for office rent, fuel, lights or stationery. Sec. 242. The Governor of the Territory is hereby au- thorized and directed, at any time whenever he considers it necessary for the safe keeping and disbursement of public moneys, to make an examination of the amount in the possession of the Territorial Treasurer, and for that purpose must have access to the same. Sec. 243. The sum of one hundred dollars is hereby an- nually appropriated out of any moneys in the Territorial Treasury, not otherwise appropriated, for the purpose of enabling the Territorial Treasurer of Idaho Territory to de- fray the expenses of publishing notices for the redemption of out standing Territorial Warrants, when the sum to be advertised is five hundred dollars or more, as they may be- come due, and for the purpose of providing the necessary stationery for his office, and the Territorial Controller is au- thorized to draw his warrant in favor of the Territorial Treasurer for the above sum annually. Governor may count money. 8 ses., 851. Publication of notice for re- demption of out- standing war- rants. lo ses , 31. CHAPTER IX. Attorney General. Section 250. General Duties. 251. Salary. Section 252. Official Bond. Section 250. It is the duty of the Attorney General : ?|nBesal 3ities* 1. To attend the Supreme Court and prosecute or defend all causes to which the Territory or any officer thereof , in his official capacity, is a party; and all causes to which any county may be a party, unless the interest of the county is adverse to the Territory or some officer thereof acting" in his official capacity: 'L After judgment in any of the causes referred to in the preceding sub-division, to direct the issuing of such process as may be necessary to carry the same into execution: 3. To account for and pay over to the proper officer all moneys which may come into his possession belonging to the Territory or to any county: 4. To keep a docket of all causes in which he is re- quired to appear, which must during business hours be open to the inspection of the public, and must show the county. district, and Court in which the causes have been instituted and tried, and whether they are civil or criminal; if civir, the nature of the demand, the stage of the proceedings, and, when prosecuted to judgment, a memorandum of the judg- ment; of an v process issued thereon, and whether satisfied or not, and if not satisfied, the? return of the Sheriff; and if criminal, the nature of the crime, the mode" of prosecution, the stage of the proceedings, and. when prosecuted to sent- ence, a memorandum of the sentence and of the execution 85 Tit I. Ch. IX. ATTORNEY GENERAL. §§ 251-252 Salary. 13 ses„ 32. Bond, thereof, if the same has been executed, and if not executed, of the reasons of the delay or prevention. 5. To exercise supervisiary powers over District At- torneys in all matters pertaining to the duties of their offices, and from time to time require of them reports as to the con- dition of public business intrusted to their charge. 6. To give his opinion in writing, without fee, to the Legislature or either House thereof, and to the Governor, the Territorial Secretary. Controller, Treasurer, the Trustees or commissioners of Territorial Institutions, when required, upon any question of law relating to their respective offices. 7. When required by the public service, to repair to any county in the Territory and assist the District Attorney thereof in the discharge of his duties. 8. To bid upon and purchase, when necessary, in the name of the Territory, and under the direction of the Controller, any property offered for sale under execution is- sued upon judgments in favor of or for the use of the Terri- tory, and to enter satisfaction in whole or in part of such judgments as the consideration for such purchases. 9. Whenever the property of a judgment debtor in any judgment mentioned in the preceding sub-division has been sold under a prior judgment, or is subject to any judg- ment, lien, or incumbrance taking precedence of the judg- ment in favor of the Territory, under the direction of the Controller to redeem such property from such prior judg- ment, lien, or incumbrance; and all sums of nioney necessary for such redemption must, upon the order of the Controller, be paid out of any money appropriated for such purposes. 10. When in his opinion it may be necessary for the collection or enforcement of any judgment herein before mentioned, to institute and prosecute, in behalf of the Terri- tory, such suits or other proceedings as he may find neces- sary to set aside and annul all conveyances fraudulently made by such judgment debtors, the cost necessary to the prosecution must, when allowed by the Controller, be paid out of any appropriations for the prosecution of delinquents. 11. To discharge the other duties prescribed by law. 12. To report to the Governor, at the time required by this Code, the condition of the affairs of his department, and to accompany the same with a copy of his docket and of the reports received by him from District Attorneys. Sec. 251. The annual salary of the Attorney General is two thousand dollars. Sec. 252. The Attorney General must execute an official bond in the sum of five thousand dollars. 86 §§ 260-289 CLERKS OF COURTS. Tit. I. Ch. X. CHAPTER X. Clerk of the Supreme Court and Clerks of the District Courts. Section 2t)0. General Duties. 261. May appoint deputies. 262. Fees. 263. Office and stationery. 26 1. File papers. 265. Deliver books and papers to successor. 2(5(J. Administer oaths. 2(>7. Must not be an Attorney, etc. 2b'S. May take Acknowledgements . Section 269. Official bond. 270. Duties of Clerk of District Court 271. Appointment of deputies. 272. Duties of deputy. 273. Must attend court. 274. Official bond. 275. Neglect or omission. 276. Fees, Section 260. The Clerk of the Supreme Court must per- form such duties as are prescribed in the Penal Code and Code of Civil Procedure, and such duties as may be required of him by the rules and practice of the Court. Sec. 261. He may appoint a Deputy. Sec. 262. The Clerk of the Supreme Court may law- fully charge, demand and receive the following fees for services rendered in discharging the duties imposed on him by law: For filing each transcript of record from an inferior Court, one dollar; for entering any motion, rule, or order, fifty cents; for entering judgement, for each folio, thirty cents; for each certificate given at request, and under seal, fifty cents; for copy of record, or opinion of court, or other pa- per, for each folio, twenty cents; for entering each cause on calender, and making copy for bar, fifty cents; for filing each paper, twenty-five cents; for every remittitur or man- date, for each folio, twenty cents; for certificate of admis- sion, as Attorney or Counselor, including seal, oath and or- der, two dollars; for administering oaths, or affirmation, in- cluding jurat, twenty-five cents; for taking and writing out acknowledgements of deeds, or other instruments, for each signature, including seal, fifty cents; for recording opinion of Court, each folio, twenty cents; for issuing any process of Court, including seal, one dollar. Sec. 263. He must keep his office in the Capitol Build- ing, and the Territorial controller must audit his bills for the necessary books and stationery for Territorial business, and draw his Warrant on the Territorial Treasurer for the amount, who shall pay the same. Sec. 264. He must file all papers that may be legally lodged with him for that purpose, noting the day, month, and year when so filed. Sec. 265. He is responsible for the safe custody and delivery to his successors of all books and papers belong- ing to his office. Sec. 266. He may administer oaths in every case where an oath is authorized by law. Sec. 267. He must not practice as an attorney or coun- sellor, nor be surety or bail in any case in the court of which he is clerk. &ec. 268. He is authorized to take acknowledgments of deeds and instruments of writing under the seal of his office. Sec. 269. The Clerk of the Supreme Court must execute an official bond in the sum of five thousand dollars. 87 General duties . May appoint deputy. Fees. Comp. laws, 821. Office and sta- tionery. Comp. laws, 820. File papers . Comp. laws, 821. Deliver books and papers to successor. Comp. laws, 821. Administer oaths. Comp. laws, 821. Must not be an attorney, etc. Comp. laws, 821. May take ac- knowledgments. Comp. laws, 821. Bond. Comp. laws, S20. Tit. !. Ch. X. CLERKS OF COURTS. s y 270-276 Duties oJ clerk of District rt. A B. 791. Appointment oi deputies. Comp. laws. 791. Duties of deputy. Comp. laws, 791. Must attend court. Comp. laws, / !»1 . Official bond Comp. laws, 791. Neglect or omis- sion. Comp. laws, 791. Fees. Comp. laws, 791-2. Sec. 270. The Clerk of the District Court for each Judi- cial District must perform such duties as are prescribed in the Code of Civil Proceedure and in the Penal Code, and such duties as may be required of him by the rules and practice of the court. Sec. 271. He must appoint a deputy resident in each county of his district. The appointment must be in writing and riled in the office of the Recorder of the county for which the deputy is appointed, and the appointment may be revoked at will by writing filed in the same office. Sec. 272. The deputy must reside at the county seat of the county for which he is appointed, and must perform all the duties of the office in the absence of his principal. All acts done and process issued by the deputy must be in the name of his principal. Sec. 273. The clerk must, in person or by deputy, at- tend every term of the District Court held in his district. Sec, 274. Before entering upon the discharge of the du- ties of his office the Clerk must execute and deposit with the Territorial Controller an official bond to the Territory in the penal sum of five thousand dollars, with two sufficient sure- ties, to be approved by the Judge of the district, conditioned that he will faithfully perform the duties of his office and at all times account for and pay over all moneys in his hands as Clerk: and the penalty of such bond may at any time be increased by the Judge of the district. The Clerk may require a bond from any deputy. Sec. 275. For any wrongful act or omission to perform any duty imposed by law, by himself or his deputy, the Clerk is liable on his official bond to any person injured. Sec. 276. The Clerk of the District Court may lawfully charge, demand and receive the following fees for services rendered, in discharging the duties imposed on him by law: For entering each suit on the register of actions, and mak- ing the necessary entries therein, thirty cents; For issuing every summons, attachment, writ of injunc- tion, or other original writ or process, fifty cents; For issuing each subpoena, fifteen cents; For filing each paper, fifteen cents; For entering of record every motion, rule, order, default, nonsuit, or discontinuance, twenty cents per folio. For entering every cause on the calander, and making a copy thereof for the bar. for each term of court, fifty cents: For calling and swearing every jury, one dollar. For receiving and entering each verdict of a jury, fifty cents. For entering every final judgment, for each folio, twenty cents. For making a copy of any paper or record, including cer- tificate, when required, for each folio, twenty cents. For making and filing judgment roll, fifty cents. For every certificate under seal, twenty-five cents. For issuing every commission to take testimony, including certificate and seal, one dollar. For taking down testimony or depositions, including oath, certificate and seal, for each folio, twenty cents. For issuing every execution, or other final process, fifty cents. 88 & 285-288 NOTARIES PUBLIC. Tit. I. Ch. XI. For issuing every decree or order of sale, including cer- tificate and seal, for each folio, twenty cents. For receiving and filing remittitur and accompanying pa- pers, from the Supreme Court, twenty-five cents. For taking each bond required by law, twenty-five cents. For acknowledgment of deed, or other instrument, in- cluding seal, fifty cents. For swearing witnesses, fifteen cents . For taking affidavit, including jurat, fifteen cents. For entry of each case in judgment docket, fifty cents. For entering satisfaction of judgment, twenty-five cents. For filing and entering transcript of judgment from jus- tice's court, fifty cents; for all services not herein enum- erated, and of him required or which he is called on to per- form such fees as are herein allowed for similar services. For the trial of each issue, when the charge is felony, five dollars. For the trial of each issue, when the charge is misdemeanor, three dollars. He shall receive no other fees whatever in a criminal ac- tion, except for copies of papers and taking testimony, for each folio, twenty cents. For final papers of naturalization, five dollars, which in- cludes all services in swearing witnesses, making minutes, recording, certifying, and issuing such papers under seal. CHAPTER XL Notaries Public. Section 285. By whom appointed. 286. Oath of office and bond. 287. Oath and bond to be filed. 288. Restrictions as to residence. 289. General duties of . 290. Protests, evidence of facts stated. Section 291 . Records of on death or resignation. 292. Certified copies of records of a pre- decessor. 293. Fees. 294. Certificate of filing bond and oath. 295. Liabilities on official bond. Section 285. The Governor may appoint and commis- sion in each county as many notaries puhlic as he may deem necessary, who shall hold said office for the term of four years. Sec. 286. Each notary public before entering upon the duties of his office must take the usual oath of office, which must be endorsed upon his bond, and must execute a bond to the Territory of Idaho in the sum of one thousand dollars, with two or more sufficient sureties, to be approved by the probate judge of the county for which said Notary may be appointed. Sec. 287. The bond with the oath of office endorsed thereon and duly attested together with a specimen of the signature, and impress of the official seal of the appointee must be filed in the office of the Territorial Secretary. At the issuance of any commission each appointee must pay the sum of ten dollars to said Secretary, who must keep an account of the same and pay one-half thereof to the Terri- torial Library fund, and may apply the residue as his fees in that behalf. Sec. 288. Every person appointed as Notary Public must at the time of his appointment, be an elector of the county for which he is appointed, and must continue to reside in such county. 89 By whoni ap- pointed. Conrp. laws, 816. Oath of office and bond. Comp. laws, 81(>. Oath and bond to be filed. Comp. laws, 817. Restrictions as to residence. Comp. laws, 819. Tit. 1. Gh. \l NOTARIES PUBLIC. 88 General duties of. Comp laws, 317-18. Protests, evi- dence of facts stated . Conip. laws, 818. llecords of, on death or resig- nation. Comp. laws, 819. Copies of rec- ords of a prede- cessor. Comp. laws, 819. Fees. Comp. laws, 819. Certificate of filing bond and oath. N. S. Sec. 289. It is the duty of a Notary Public: 1. When requested, to demand acceptance and payment of Foreign, Domestic and Inland bills of exchange, or prom- issory notes, and protest the same for non-acceptance and non-payment, and to exercise such other powers and duties as by the law of nations and according to commercial usages, or by the laws of any other Territory, State, Government or Country, may be performed by Notaries : 2. To take the acknowledgment or proof of powers of at- torney, mortgages, deeds, grants, transfers, and other in- struments of writing executed by any person, and to give a certificate of such proof or acknowledgment indorsed on or attached to the instrument : 3. To take depositions and affidavits, and administer oaths and affirmations, in all matters incident to the duties of the office, or to be used before any court, judge, officer, or board in this Territory: 4. To keep a record of all official acts done by him under the first subdivision of this section : 5. When requested, and upon payment of his fees there- for, to make and give a certified copy of any record in his office: (j. To provide and keep an official seal, upon which must be engraved his name, the words "Notary Public," and the name of the county for which he is commissioned : 7. To authenicate with his official seal all official acts. Sec. 290. The protest of a Notary, under his hand and official seal, of a bill of exchange or promissory note, for non-acceptance or non-payment, stating the presentment for acceptance or payment, and the non-acceptance or non-pay- ment thereof, the service of notice on any or all of the par- ties to such bill of exchange or promissory note and specify- ing the mode of giving such notice and the reputed place of residence of the party to such bill of exchange or promissory note, and of the party to whom the same was given, and the postoffice nearest thereto, is prima-facie evidence of the facts contained therein. Sec. 291. If any Notary die, resign, is disqualified, re- moved from office, or removes from the county for which he is appointed, his records and all his public papers must, within thirty days, be delivered to the Recorder of the County, who must deliver them to the Notary's successor when qual- ified. Sec. 292. Every Notary having in his possession the records and papers of his predecessor in office, may grant certificates or give certified copies of such records and pa- pers, in like manner and with the same effect as such pre- decessor could have done. Sec. 293- The fees of Notaries are as follows: For drawing and copying every protest for non-payment of a promissory note, or for the non-payment or non- acceptance of a bill of exchange, draft or check, three dol- lars; for drawing and serving every notice of non-payment of a promissory note, or of the non-payment or non-accept- ance of a bill of exchange, order, draft or check, one dollar: for recording every protest, fifty cents: for drawing any paper for which provision is not herein made, for each folio, thirty cents; for taking an acknowledgment or proof of a 90 !S 294-306 COMMISSIONERS OF DEEDS. Tit. I. Ch. XII. deed or other instrument, to include the seal and the writ- ing of the certificate, fifty cents; for administering and cer- tifying an oath, twenty-five cents; for every certificate under seal, to include writing the same, fifty cents. Sec. 294. Each Notary, as soon as he has taken his official oath and filed his official bond, must transmit a cer- tificate of the facts, under the hand and seal of the Territo- rial Secretary, to the Clerk of the District Court for his County. Sec. 295. For the official misconduct or neglect of a Notary Public, he and the sureties on his official bond are liable to the parties injured thereby for all the damages sus- tained. CHAPTER XII. Commissioners of Deeds. Section 300. Governor to Appoint. General Duties of. Effect of Acts Done by Commission- ers. Oaths, When to he Filed. 301. 302. 303. Section 304. Fees. 305. Copy of this Chapter to be Trans- mitted to Appointee . 306. Fees of Secretary. Section 300. The Governor may appoint in each State or Territory of the United States, or in any foreign State, one or more Commissioners of Deeds, to hold office for the term of four years from and after the date of their commis- sion. Sec. 301. Every Commissioner of Deeds has power, within the State for which he is appointed, 1. To administer and certify oaths; 2. To take and certify depositions and affidavits; 3. To take and certify the acknowledgment or proof of power of attorney, mortgages, transfers, grants, deeds, or other instruments for record; 4. To provide and keep an official seal, upon which must be engraved the words ''Commissioner for the Territory of Idaho," and the name of the Commissioner; 5. To authenticate, with his official seal, all his official acts. Sec. 302. All oaths administered, depositions and affi- davits taken, and all acknowledgments and proofs certified by Commissioners of Deeds, have the same force and effect, to all intents and purposes, as if done and certified in this Ter- ritory by any officer authorized by law to perform such acts. Sec. 303. The official oaths of Commissioners of Deeds must be filed in the office of the Secretary of the Territory within six months after they are taken. Sec. 304. The fees of Commissioners of Deeds are the same as those prescribed for Notaries Public. Sec. 305. The Secretary of the Territory must transmit, with the commission to the appointee, a certified copy of this chapter. Sec. 306. The Secretary of the Territory is entitled to receive a fee of five dollars for issuing each commission un- der the provisions of this act to be paid by the party apply- ing therefor. 91 Liabilities on bond. Comp. laws, 818. Governor to ap- point. Comp. laws, 674. General duties of. Comp. laws, 674. Effect of acts done by Commission- ers. Comp. laws, 674. Oath, when to be filed. Comp. laws, 674. Fees. Copy of chapter to be transmitted. Fees of Secretary. Comp. laws, 675. / CK.XIII-XIV. DISQUALIFICATIONS. -RESTRICTIONS. 88 Age and citizenship. 13 see.. 5o. Other disqualifica- tions. Delegate, 13 ses., 107 CHAPTER XIII. i Disqualifications. Section :>15. Age and Citizenship. Section 31(>. Other Disqualifications, Delegate to Congress, and Member of the Leg- islature. Section 315. No 'person is capable of holding a civil office who at the time of his election or appointment is not of the age of twenty-one years, and a citizen and elector of this Territory, for six months prior to his election or ap- pointment. Sec. 316. No person is eligible to the office of Delegate to Congress, to a seat as member of the Council or House of Representatives, or any Territorial office, unless he has been a resident of the Territory one year prior to the time of election. Officers to reside in Boise City. 8 ses. 820. /^^m, Abtetk/SL^ CHAPTER XIV. Restrictions Upon the Residence of Officers. Section 325. Certain Officers must reside in Boise City. Section 32(>. Absence from the Territory. 327. No Allowance for Rent, Fuel, Lights. Section 325. The following officers must reside at and keep their offices in Boise City: The Governor; Secretary of the Territory; Controller; Territorial Treasurer; Attorney General; Superintendent of Public Instruction, and . Clerk of the Supreme Court. v<^£>ec. 326. No Territorial officer must absent himself f$rjftor£afJ: from the Territory for more than sixty days, unless upon business of the Territory, or with the consent of the Legis- lature. Sec. 327. The officers enumerated in the first section of . this chapter may occupy without rent or charge the offices provided for them respectively in the Capitol Building; and no pay or allowance must be made to any one of said officers for rent, fuel, or lights whether such officer occupy such of- fice or not. No allowance for rent, fuel or lights. 92 g§ 335-350 NOMINATIONS.— OATH OF OFFICE. TILL Ch.XV-XVI CHAPTER XV. Nominations and Commissions of Officers. Section I Section 335. Nominations to Council must be in 338. Form of Commissions. writing. | 339. Other Commissions. 336. Resolution of Concurrence. 340. Appointment of Deputies, etc., how 'A'.iT . Commissions by the Governor. made. Section 335. Nominations made by the Governor to the Legislative Council must be in writing, designating the resi- dence of the nominee and the office for which he is nomi- nated. Sec. 336. Whenever the Council concurs in a nomina- tion, its Secretary must immediately deliver a copy of the resolution of concurrence, certified by the President and s. cretary to the Governor. Sec. 337. The Governor must commission: 1. All officers of the militia: 2. All officers appointed by the Governor, or by the Gov- ernor with the advice and consent of the Council. Sec. 338. Tho Commissions of all officers commissioned by the Governor must be issued in the name of the people of this Territory, and must be signed by the Governor and at- tested by the Secretary of the Territory, under the Great Seal. Sec. 339. The commissions of all officers, where no special provision is made by law, must be signed by the pre- siding officer of the body or by the person making the ap- pointment. Sec. 340. The appointment of deputies, clerks, and sub- ordinate officers, when not otherwise provided for, must be nmde in writing, filed in the office of the appointing power or the office of its clerk. Nominations to be in writing. N. S. Resolution of concur- rence. N. S. Commissions by the Governor. N. S. Form of commissions. N.S. Other Commissions. N. S. Appointment of deputies, etc., how made. N. S. CHAPTER XVI.. Oath of Office. Section 350. Official Oath. 352. Oath of members of the Legislature. 3") ,'3. Oath, when taken. 354. Oath, before whom taken. Section 355. Oath, by County officers. 356. Oath, when tiled. 357. Oath of Deputies, etc. Section 350. Before any officer, elected or appointed to fill any office, created by the laws of this Territory, en- ters upon the duties of his office, he must take and subscribe an oath, to be known as the "Official Oath." which is as fol- lows: I do swear (or affirm) that I will support the Constitution of the United States, the Organic Act and the laws of this Territory, and that I will faithfully discharge all the duties of the office of according to the best of my ability, and I do further swear (or affirm) that I am a citizen <>f the United States, over the age of twenty-one years; that 1 had actually resided in Idaho Territory for the period of four months and in this county thirty days next preceding the date of my election (or appointment): that I am not a member of any order, sect or organization, which teacl" advises or encourages the practice 93 of bigamy or polygamy Official oath. 8 ses., 824. Tit. I. Ch. XVII. PROHIBITIONS. §§ 352-365 Oath of members of Legislature. Oath, when taken. Oaths, before whom taken . Oath by county officers. 13 868., 57. Oath, where filed. Oath of deputies, etc. or any other crime defined by law as a duty or privilege re- sulting or arising from the faith or practice of such order, sect, or organization, or that teaches, counsels, encourages, or advises any person or persons to commit the crime of bigamy or polygamy, or any other crime defined by1 law as a religious duty; that I am not a bigamist or a polygamistr and that I do not cohabit with any woman not my lawful wife; that I do not either publicly or privately teach, coun- sel, encourage or advise any person or persons to enter into bigamous or polygamous relations or into the relation known as "Plural" or ' '"Celestial Marriage;" that I regard the Con- stitution of the United States and the laws thereof and of this Territory, as interpreted by the Courts, as the Supreme law of the land, and that I will support and uphold the same, the teachings of any order, sect, or organization to the con- trary notwithstanding, somelp me God. Sec. 352. Members of the Legislature may take the oath of office at any time during the term for which they were elected. Sec. 353. Whenever a different time is not prescribed by law, the oath of office must be taken, subscribed and filed within ten days after the officer has notice of his election or appointment, or before the expiration of fifteen days from the commencement of his term of office, when no such no- tice has been given. Sec. 354. Except when otherwise provided, the oath may be taken before any officer authorized to administer oaths. Sec. 355. The oath of office must be taken by County Commissioners before the County Rocorder of their respec- tive counties on the second Monday of January succeeding each general election; and on the next judicial day the other county officers must take and subscribe the official oath be- fore the Chairman of the Board. Sec. 356. Every oath of office, certified by the officer before whom the same was taken, must be filed within the time required by law, except when otherwise specially di- rected, as follows: 1. The oath of all officers whose authority is not limited to any particular county, in the office of the Secretary of the Territory : 2. The oath of all officers elected or appointed for any county, district or precinct, in the offices of the Recorder of their respective counties. Sec. 357. Deputies, clerks, and subordinate officers must take and file an official oath before entering upon their du- ties. CHAPTER XVII. Officers not to be interested in contracts. Prohibitions Applicable to Certain Officers. Section 365. Certain officers not to be interested in contracts . 366. Nor purchasers or vendors at certain sales. 367. Contracts, in violation, voidable. Section 368. Certain officers prohibited from deal- ing in script, etc. 3()i>. Auditing officers, duties of. :>TO. Ti-easurer, duties of. 371. When settlements must be withheld. Section 365. Members of the Legislature. Territorial count v. city, district and precinct officers, must not be in-- 94 g§ 366-381 SALARIES WHEN TITLE CONTESTED. Tit. I. Ch, XVIII terestecl in any contract made by them in their official ca- pacity, or by any body or board of which they are members. Sec. 366. Territorial, county, district, precinct and city officers must not be purchasers at any sale nor vendors at any purchase made by them in their official capacity. Sec. 367. Every contract made in violation of any of the provisions of the two preceding sections may be avoided at the instance of any party except the officer interested therein. Sec. 368. The Territorial Treasurer and Controller, the several county, city, district or precinct officers of this Ter- ritory, their deputies and clerks, are prohibited from pur- chasing- or selling, or in any manner receiving to their own use or benefit, of any person or persons whatever, any Terri- torial, county, or city warrants, script, orders, demands, claims, or other evidences of indebtedness against the Terri- tory, or any county or city thereof, except evidences of indebtedness issued to or held by them for services rendered as such officer, deputy or clerk, and evidences of the funded indebtedness of such Territorial county, city, district or corporation. Sec. 369. Every officer whose duty it is to audit and allow the accounts of other Territorial, county, district, city or precinct officers, must, before allowing such accounts, require each of such officers to make and file with him an affidavit that he has not violated any of the provisions of this chapter. Sec. 370. Officers charged with the disbursement of public moneys must not pay any warrant or other evidence of indebtedness against the Territory, county, city or dis- trict, when the same has been purchased, sold, received or transferred contrary to any of the provisions of this chap- ter. Sec. 371. Every officer charged with the disbursement of public moneys, who is informed by affidavit that any officer whose account is to be settled, audited, or paid by him, has violated any of the provisions of this chapter, must suspend such settlement or payment, and cause such officer to be prosecuted for such violation. Purchasors at certain sales, not to be. Contracts in violation, voidable. Officers prohibited from dealing . in script, etc. Conap. laws, CG7. Auditing officers, duties of. Duties of Treasurer. Comp. laws. 068. Settlements withheld when. Comp. laws, Go'8. CHAPTER XVIII. Salaries of Officers When Title is Contested. ION 380. Title Contested, Salary must not be Paid. Section 381. Pendency of Suit must be Certified by the Clerk. Section 380. When the title of the incumbent of any Title contested, office in this Territory is contested by proceedings instituted ^poLl"18* not in any court for that purpose, no warrant can thereafter be N- s- drawn or paid for any part of his salary until such proceed- ings have been finally determined. Sec. 381. As soon as such proceedings are instituted, Pendency oi the Clerk of the Court in which they are pending must cer- certified^6 tify the facts to the officers, whose duty it would otherwise clerk- be to draw such warrant or pay such salary. 95 Tit I. Ch. XTX. BONDS OF OFFICERS. CHAPTER XIX. Bonds OF ( >FFICERS. Time for filing bond. Couip. laws, 807. Approval, etc. of bonds. Comp. laws, 808. Bonds of county officers, ap- proval, etc. Corup. laws, 808. Kecord of official bonds. Coinp. laws, 808. Approval must be endorsed on bond. Comp. laws, 808. Bond not to be filed before ap- proval. Comp. laws, 808. Condition of bond. Comp. laws, 812. II ses. Justification of sureties. 390 391 392 393 394 :{<)<; 397 398 399 400 101 M)2 L03 101 405 406 IOT rioN . Time for Filing Bond. . Approval, Filing and Recording Bonds of Territorial Officers. Bonds of County and Township Offi- cers, Approval, Filing and Record- ing. Record of Official Bond. . Approval must be Indorsed on Bond. . Bond not to be Filed before Approval. . Condition of Bond. . Justification of Sureties. Sureties for less than the Penal sum. Custody of Official Bonds. . Form of Bonds . Construction of Bonds. Same. . Suit on Bonds. . Same. Defects in Form, Approval, Filing, etc., not to Vitiate. . Insufficiency of Sureties. . Form of Additional Bond. Section . 408. Force of Original Bond. 409. Liability of Officers and Sureties. 4 10. Separate Judgments on Bonds. 411. Contribution between Sureties. 412. Discharge of Sureties. 413. Persons Appointed to fill Vacancies, Bonds of. 414. Release of Sureties. 41 5. Same. 41(5. Same. 417. When Office may be Declared Vacant for want of Official Bond . 418. Effect of Release of Surety, on Re- maining Sureties . 419. Effect of Discharge of Sureties. 420. Provisions of Chapter apply to Bonds of Administrator, etc. 421. Bonds of Receivers. Assignees, etc. 422. Actions on Official Bonds, Effect of. 423. Same. 42 1. Bonds of Deputies, Clerks, etc. Section 390. Every official bond must be filed in the proper office within the time prescribed for filing the oath, unless otherwise expressly provided by Statute. Sec. 391. Unless otherwise prescribed by Statute, the official bonds of Territorial officers must be approved by the Governor, and filed and recorded in the office of the Secre- tary of the Territory. Sec. 392. Unless otherwise prescribed by Statute, the official bonds of county and precinct officers must be ap- proved by the board of County Commissioners, and filed and recorded in the office of the County Recorder, and must be in such penalties as is required by law. or, when not fixed by law, as required by the board. Sec. 393. Official bonds must be recorded in a book kept for that purpose, and entitled "Record of Official Bonds.** Sec. 394. The approval of every official bond must be indorsed thereon and signed by the officer approving the same. Sec. 395. No officer with whom any official bond is re- quired to be filed must file such bond until approved. Sec. 396. The condition of an official bond must be that the principal will well, truly and faithfully perform all offi- cial duties then required of him by law, and also all such additional duties as may be imposed on him by any law of the Territory. Such bond must be signed by the principal and at least two sureties, to the full penalty of the bond. No person shall be accepted as surety, on such bond, except he shall during the year immediately preceding have been assessed and paid taxes, in his own right, upon property to the amount for which he has become surety. Act Feb v. 3, 1887, in effect June 1, 1887. Sec. 397. The officer whose duty it is to approve official bonds required of Territorial, county, district or precinct officers, must not accept or approve any such bond unless each of the sureties severally justify, before an officer au- thorized to administer oaths, as follows: 1. On a bond given by a Territorial officer, that such sure- ty is a resident and free-holder or house-holder within this Territory; and on a bond given by a county, district, or pre- 96 ?§ 398 404 BONDS OF OFFICERS Till. Ch.XIX. cinct officer, that such surety is a resident and free-holder or house-holder within such county or within an adjoining county : 2. That such surety is worth the amount for which he be- comes surety over and above all his debts and liabilities in unincumbered property situated within this Territory, ex- clusive of property exempt from execution and forced sale. Sec. 398. When the penal sum of any bond required to be given amounts to more than one thousand dollars, the sureties may become severally liable for portions of not less than five hundred dollars thereof, making in the aggregate at least two sureties for the whole penal sum. And if any such bond becomes forfeited, an action may be brought thereon against all or any number of the obligors, and judgment entered against them, either jointly or severally, as they may be liable. The judgment must not be entered against a surety sev- erally bound for a greater sum than that for which he is specially liable by the terms of the bond. Each surety is li- able to contribution to his co-sureties in proportion to the amount for which he is liable. Sec. 399. Every officer with whom official bonds are filed must carefully keep and preserve the same, and give certified copies thereof to any person demanding the same, upon being paid the same fees as are allowed by law for certified copies of papers in other cases. Sec. 400. All official bonds must be in form joint and several, and made payable to the Territory of Idaho in such penalty and with such conditions as required by this chapter, or the law creating or regulating the duties of the office. Sec. 401. Every official bond executed by any officer pursuant to law is in force and obligatory upon the principal and sureties therein for any and all breaches of the condi- tions thereof committed during the time such officer con- tinues to discharge any of the duties of or hold the office, and whether such breaches are committed or suffered by the principal officer, his deputy, or clerk. Sec. 402. Every such bond is in force and obligatory up- on the principal and sureties therein for the faithful dis- charge of all duties which may be required of such officer by any law enacted subsequently to the execution of such bond, and such condition must be expressed therein. Sec. 403. Every official bond executed by any officer pursuant to law is in force and obligatory upon the principal and sureties therein to and for the Territory of Idaho, and to and for the use and benefit of all persons who may be in- jured oraggrieved by the wrongful act or default of such of- ficer in his official capacity, and any person so injured or ag- grieved may bring suit on such bond, in his own name, with- out an assignment thereof. Sec. 404. No such bond is A^oid on the first recovery of a judgment thereon; but suit may be afterwards brought, from time to time, and judgment recovered thereon by the Territory of Idaho, or by any person to whom a, right of ac- tion has accrued against such officer and his sureties, until the whole penalty of tin1 bond is exhausted. Sureties for less than penal sum. Comp. laws, HO<)-10. Custody of official bouds. Comp. laws, 808. Form of bonds. Comp. laws, 808. Construction of bonds. Comp. laws, 810. Same. Comp. laws, 810. Suit '>n bouds. Comp. laws, 810. Same. Comp. laws, sill. 1)7 Tit I. ('/<■ XIX. BONDS OF OFFICERS. §§ 105-411 . form, p laws, 810. Lnsufticiency of sureties. Comp. Laws, B09. Form of addi- tional bond. Coinp. Laws, B12. Form of original bond. Comp. laws, 812. Liabilities of officers. Comp. lavs, HI 'J. Separate judg- ments 00 bonds. Comp. laws, < ontrilnit ion between sure- ties. ( ' .nip. laws, ^1 'J. Sec. 405. Whenever an official bond does not contain the substantia] matter or conditions required by law, or there are any defects in the approval or filing thereof, it is not void so as to discharge such officer and his sureties; but they are equitably bound to the Territory, or a party interested, and the Territory or such party may, by action in anycourt of competent jurisdiction, suggest the defect in the bond, ap- proval, or filing, and recover the proper and equitable de- mand or damages from such officer and the persons who in- tended to become and were included as sureties in such bond. Sec. 406. Whenever it is shown by the affidavit of a credible witness, or otherwise comes to the knowledge of the Judge, Court, Board, Officer, or other person whose duty it is to approve the official bond of any officer, that the sureties or any one of them. has. since such bond was approved, died, removed from the Territory, become insolvent, or from any other cause has become incompetent or insufficient surety on such bond, the Judge, Court, Board, Officer, or other per- son may issue a citation to such officer, requiring him, on a day therein named, not less than three nor more than ten days after date, to appear and show cause why such office should not be vacated, which citation must be served and re- turn thereof made as in other cases. If the officer fails to appear and show good cause why such office should not be vacated, on the day named, or fails to give ample additional security, the Judge, Court, Board, officer, or other person must make an order vacating the office, and^the same must be filled as provided by law. Sec. 407. The additional bond must be in such penalty as directed by the Court, Judge, Board, officer, or other per- son, and in all other respects similar to the original bond, and approved by and filed with the same officer as required in case of the approval and filing of the original bond. Every such additional bond so filed and approved is of like force and obligation upon the principal and sureties therein, from the time of its execution, and subjects the officer and his sureties to the same liabilities, suits, and actions as are prescribed respecting the original bonds of officers. Sec. 408. In no case is the original bond discharged or affected when an additional bond has been given, but the same remains of like force and obligation as if such addi- tional bond had not been given. Sec. 409. The officer and his sureties are liable to any party injured by the breach of any condition of an official bond, after the execution of the additional bond, upon either or both bonds, and such party may bring his action upon either bond, or he may bring separate actions on the bonds respectively, and he may allege the same cause of action, and recover judgment therefor in each suit. Sec. 410. If separate judgments are recovered on the bonds by such party for the same cause of action, he is en- titled to have execution issued on such judgments respective- ly, but he must only collect, by execution or otherwise, the amount actually adjudged to him on the same causes of ac- tion in one of the suits, together with the costs of both suits. Sec. 411. Whenever the sureties on either bond have been compelled to pay any sum of money on account of 98 §§412 120 BONDS OF OFFICERS 'lit: I. Ch.XlX Discharge of sureties. N. S. the principal obligor therein, they are entitled to recover in any court of competent jurisdiction of the sureties on the remaining bond a distributive part of the sum thus paid, in the proportion which the penalties of such bonds bear one to the other and to the sums thus paid, respectively. Sec. 412. Whenever any sureties on the official bond of any officer wish to be discharged from their liability, they and such officer may procure the same, to be done if such officer will execute a new bond with sufficient sureties in like form, penalty, and conditions, and to be approved and filed as the original bond. Upon the filing and approval of the new bond such first sureties are exonerted from all further liability, but their bond remains in full force as to all liabilities incurred previous to the approval of such new bond. The liability of the sureties in such new bond is in all respects the same, and may be enforced in like manner as the liability of the sureties in the original bond. Sec. 413. Any person appointed to fill a vacancy, before entering upon the duties of the office, must give a bond cor- responding in substance and form with the bond required of the officer originally elected or appointed, as- hereinbefore provided. Sec. 414. Any surety on the official bond of a city, dis- trict, precinct, county or Territorial officer may be relieved from liabilities thereon afterwards accruing by complying with the provisions of the three sections following. Sec. 415. Such surety must file with the Judge, Court, Board, Officer or other person authorized by law to approve such official bond, a statement in writing setting forth the desire of the surety to be relieved from all liabilities thereon afterwards arising, and the reasons therefor, which state- ment must be subscribed and verified by the affidavit of the party filing the same,n Sec. 416. A beefy'' of the statement must be served on the officer named in such official bond and due return or affidavit of service made thereon as in other cases. Sec. 417. In twenty days after the service of such no- tice the Judge, Court, Board, Officer, or other person with whom the same is filed, must make an order declaring such office vacant, and releasing such surety from all liability thereafter to arise on such official bond, and such office thereafter is in law vacant, and must be immediately filled by election or appointment, as provided for by law, as in other cases of vacancy of such office, unless such officer has before that time given good and ample surety for the discharge of all his official duties as required originally. Sec 418. The release, discharge, voluntary withdrawal, or incompeiitency of a surety on any official bond does not affect the bond as to the remaining sureties thereon, or alter or change their liability in any respect. Sec. 419. No surety must be released from damages or liabilities for acts, omissions, or causes existing or which arose before the making of the order releasing him from liability, but such legal proceedings may be had therefor in all respects as though no such order had been made. Sec 420. The provisions of this chapter apply to the bonds of receivers, executors, administrators and guardi- ans. Persons appointed to fill vacancies, bonds of. Comp. laws, 81 3. Release of sureties. Comp. laws, 813. Release of sureties. Comp. laws, 813. Same. Comp. laws, 813. When office may be declared vacant, etc. Comp. laws, 813. Remaining sureties reliable. N. S. Discbarge of suretes, effoct of. Comp. laws, 813. This cbaptor applicable to. Comp. laws, 813 99 /. en. \\ RESIGN \TIOXS. VACANCIES, ETC. §§ 421-430 I '. law 8, Actions ou official bunds. Comp. laws, M I. Action on official bonds, effect of. Comi>. laws, 814. Bonds of deputies. Sec. 421. All bonds or undertakings given by trustees, receivers, assignees, or officers of a court in an action or proceeding for the faithful discharge of their duties, where it is not otherwise provided, must be in the name of and payablfe to the Territory of Idaho; and upon the order of this court where such action or proceeding is pending may be prosecuted for the benefit of any and all persons inter- ested therein Sec. 422. When an action is commenced inany court in ' this Territory for the benefit of the Territory, to enforce the penalty of or to recover money upon an official bond or obligation or any bond or obligation executed in favor of the Territory of Idaho, or of the people of this Territory, the attorney or other person prosecuting the action may file with the court in which the action is commenced an affida- vit, stating either positively or on information and belief that such bond or obligation was executed by the defen- dant or one or more of the defendants (designating whom), and made payable to the people of this Territory, or to the Territory of Idaho, and that the defendant or defendants have real estate or interest inlands (designating the county or counties in which the same is situated), and that the action is prosecuted for the benefit of the Territory; and thereupon the clerk receiving such affidavit must certify to the Recorder of the county in which such real estate is situated the names of the parties to the action, the name of the court in which the action is pending 'and the amount claimed in the complaint, with the data of the commence- ment of the suit. Sec. 423. Upon receiving such certificate the county Recorder must indorse upon it the time of its reception, and such certificate must be filed and recorded in the same man- ner as notices of the pendency of an action affecting real estate; and any judgment recovered in such action is a lien upon all real estate situated in any county in which such certificate is so filed belonging to the defendant, or to one or more of such defendants, for the amount that the owner thereof is or may be liable upon the judgment, from the fil- ing of the certificate; and the fees due the Clerk and Recor- der for the services required are a charge against the county where the suit is brought, to be recovered like other costs. Sec. 424, Every officer or body appointing a deputy, clerk, or subordinate officer may require an official bond to be given by the person appointed and may fix the amount thereof. CHAPTER XX. Resignations, Vacancies, and the Mode of Supplying Them. Resignationi whom made , l n; Section Vacancies occurring during session of the Legislature. Power and duty of officers filling un- expired terms. 433 436 Section 430, Resignations, to whom made. 131. Vacancies, how they occur. 132. Notice of removal, by and to whom given. 433. Vacancies in Legislature, how filled. 134, Vacancies, how filled when n t otherwise provided for to Section 430 ns follows: 1. By all Territorial officers and members of the Legisla- tive Assembly, and all officers appointed by the Governor, Resignations must be in writing and made 100 g§ 431-436 RESIGNATIONS, VACAN'CIES, ETC. Tit. I. Ch. XX. with the consent of the Legislative Council, to the Gov- ernor. '2. By all county, district and precinct officers, except County Commissioners, to the Board of County Commis- sioners. 3. By County Commissioners, to the Clerk of the Board. 4. By all other appointed officers, to the body or officer that appointed them. Sec. 431. An office becomes vacant on the happening of either of the following events before the expiration of the term: 1. The death of the incumbent. 2. His insanity, found upon a commission of lunacy issued to determine the fact. 3. His resignation. 4. His removal from office. r>. His ceasing to be an inhabitant of the Territory, or if the office be local, of the district, county, city, or precinct for which he was chosen or appointed, or within which the duties of his office are required to be discharged. 6. His absence from the Territory without permission of the Legislature or Board of County Commissioners beyond the period allowed by law. 7. His ceasing to discharge the duties of his office for the period of three consecutive months, except when prevented by sickness, or when absent from the Territory by permis- sion of the Legislature, or Board of County Commissioners. 8. His conviction of a felony, or of any offense involving a violation of his official duties. 9. His refusal or neglect to file his official oath or bond within the time prescribed. 10. The decision of a competent tribunal declaring void his election or appointment. Sec. 432. Whenever an officer is removed, declared in- sane or convicted of a felony or offense involving a viola- tion of his official duty, or whenever his election or appoint- ment is declared void, the body, Judge, or officer before whom the proceedings were had must give notice thereof to the officer empowered to fill the vacancy. Sec. 433. Whenever a vacancy occurs in either House of the Legislature the Governor must at once issue a writ of election to till such vacancy, if during, or prior to a session. Sec. 434. When any office becomes vacant, and no mode is provided by Law for filling such vacancy, the Gov- ernor must fill sucli vacancy by granting a commissioner, to expire at the end of the next session of the Legislature or at the next election by the people. Sec. 435. Vacancies occuring in office during the recess of the Legislature, the appointment to which is vested in the Governor and Council, or in the Legislature, must be filled by appointment made by the Governor; but the person so ap- pointed can only hold the office until the adjournment of the next session of the Legislature. Sec. 436. Any person elected or appointed to fill a va- cancy, after filing his official oath and bond, possesses all the rights and powers and is subject to all the liabilities, duties, and obligations of the officer whose vacancy he fills. 101 Vacancies, how tbey occur. 13 sea., 116. Notice of removal, by and to whom given. N. S. Vacancies in Legislatures. Vacancies, how filled, when not otherwise pro- vided for. 13 ses., 1 16. Vacancies during recess of legislature. 13 sos., 1 16. Olhcers filling unexpired terms, powers of, etc. 1 '.', ri('8.( 116. Tit. I. Ch. XXI XXII. DELIVERY OF BOOKS.— MISCELLANEOUS. §§ 440-454 Possession of books and papers. Comp. laws, .">7l>. Proceedings to compel delivery of. N. S. Attachment and -warrant to enforce. N. S. CHAPTER XXI. Proceedings to Compel the Delivery of Books and Pa pers by Officers to their Successors. . Section 112. Attachment and warrant to enforce. Section. 110. Possession of hooks and papers. 111. Proceedings to compel delivery of. Section 44.0- Every public officer is entitled to the pos- session of all books and papers pertaining to his office, or in the custody of a former incumbent by virtue of l^is office. Sec. 441- If any person, whether a former incumbent or another person, refuse or neglect to deliver to the actual incumbent any such books or papers, such actual incumbent may apply by petition to any court of record sitting in the county where the person so refusing or neglecting resides, or to any Judge of the District or Probate Court residing therein, and the court or officer applied to must proceed in a summary way, after notice to the adverse party, to hear the allegations and proof of the parties, and 4o order any such books or papers to be delivered to the petitioner. Sec. 442. The execution of the order and the delivery of the books and papers may be enforced by attachment as for a witness, and also, at the request of the petitioner, by a warrant directed to the sheriff or a constable of the coun- ty, commanding him to search for such books and papers, and to take and deliver them to the oetitioner. Seals of execu- tive officers. N. S. Great seal. N. S. Oaths, who may administer. Salaries of officers. Comp. laws, 851-801. 13se8., 32. Office hours N. S. Officers acting ex officio, signa- tures of. N. S Records open to public inspec- tion. CHAPTER XXII. Miscellaneous Provisions. Section. 448. Seals of executive officer. 449. Great seal. 450. Executive and judicial officers administer oaths. may Section 45 1 . Salaries of officers. 452. Office hours. 453. Signature of officers acting ex-officio. 454. Records open to public inspection. Section 448. Except when otherwise specially pro- vided by law, the seals of office of the various executive officers are those in use by such officers at the time this title takes effect, and each of such officers must at once file a de- scription and impression of such seal in the office of the Sec- retary of the Territory. Sec. 449. The Great Seal of the Territory is the one in use at the time of the adoption of this title. Sec. 450. Every executive and judicial officer may ad- minister and certify oaths. Sec. 451. Unless otherwise provided by law. the salar- ies of officers must be paid out of the Territorial Treasury, quarterly, on the last day of each quarter. Sec. 452. Unless otherwise provided by law. every officer must keep his office open for the transaction of business from ten o'clock a. m., until four o'clock p. m . each day3 except upon holidays. Sec. 453. When an officer discharges ex-officio the duties of another office than that to which he is elected or appoint- ed, his official signature and attestation must be in the name of the office the duties of which he discharges Sec. 454. The public records and other matters in the office of any officer-are at all times, during office hours, open to the inspection of any citizen of thi^ Territory. 102 §§465-477 ELECTIONS. -ELECTION PKOCLAMATIONS. Tit. 11. Ch. I-IL TITLE II. OF ELECTIONS. CHAPTER I. Time of Holding Elections. Section 465. General Election, When to be Held. 460 Officers to be Elected. • Srction , d 5- O 43 — CO += Certificate . Name Descx-iption of © CD ■•-? 25 . s Where Naturalization s 3 of - of Exhibit? Remarks. o *a plicant. registration is made, entitled to vote thereat. He must also. on any other day of the week, except holidays, during said time of registration, register any such elector, who may find and apply to him at his place of registration, and he may at any time or place, during said time of registration, reg- ister any such elector of his precinct. First" He may at any time examine under oath, any appli- cant as to his qualifications, and he must likewise examine, also permit any qualified elector of his county to examine any applicant for registration, either when such applicantjs cr* csA*^ not known to the Registrar to be a qualified elector Achal- a^ cJLUfsU, . lenges such applicant, and distinctly states his cause of challenge. Second When any applicant claims to be a naturalized citi- zen, the production by him of his Certificate of Naturaliza- tion, is prima facie evidence of his citizenship; if he cannot produce such certificate, he must state under oath, positive- ly, the time when, and place and court where, he was nat- uralized: also, he must by his own. or other, testimony make it satisfactorily appear to such Registrar that he has been duly naturalized, but that his certificate thereof is lost, de- stroyed, or beyond his control, and thereupon he must be deemed a citizen and entitled to registration, if otherwise qualified, all examinations before suchp^ggistrar, must be reduced to writing, when desired by tfees applicant, chal- lenging elector, or the Registrar, but such examination for any one (1) applicant shall not exceed one-half (£) hour, without the consent of the Registrar. If any applicant refuses to answer all questions, give all information under his control, take all oaths, and do all other acts and things required of him by law, his applica- tion must be rejected by the Registrar. The Registrar must, before he registers any applicant, require him to take and subscribe the oath, to be known as the "Elector Oath,*' which is as follows: I do swear (or affirm) that I am a maJe citizen of the oath of elector United States of the age of twenty-one (21) years, (or will be the day 18 (naming date or next succeeding election) that I have (or will have) actually resided in this Territory for four (4) months, and in this county for thirty (30) days next preceding the day of the next ensuing elec- tion ; (in case of any election requiring a different time of residence, so make it) that I have never been convicted of treason, felony or bribery; that I am not now .registered, or entitled to vote* at any other place in this Territory; and 1 do further swear- that I am not a bigamist or polygamist ; that I am not a member of any order, organization, or asso- ciation which teaches, advises, counsels or encourages its members, devotees, or any other person to commit the crime of bigamy or polygamy, or any other crime defined by law, as a duty arising or resulting from membership in such or- der, organization or association, or which practices bigamy orpolygamy, orplural or celestial marriage, asa doctrinal rite of such organization; that I do not, and will not, publicly or privately, or in any manner whatever, teach, advise. Coun- sel, or encourage, any person to commit the crime of big- amy orpolygamy, or any other crime defined by law, either as a religious duty or otherwise; that 1 do regard the consti- 107 a. Any person is guilty of felony who votes or offers to vote at any election, in the name of some other registered elector, or other person, or any person who wil- fully registers his name in one precinct, while- registered in another, without attempting to procure his certificate of transfer, or any person who attempts to register or vote in any precinct when he knows he is not entitled thereto, or any person who aids, advises, or abets, any one in unlaw- fully registering his name, or in violating any of the provis- ions of this act: and any Registrar who corruptly registers any person whom he knows is not entitled thereto, or re- fuses to register any one complying with the provisions of this act, and whom he knows to be a qualified elector; also any officer connected with the administration of this law, who wilfully does any act in violation of the provisions hereof, or who by wilfully destroying, carrying away, or misplacing, any books or papers connected with registra- tion, defeats an election or renders an election unfair, or deprives electors of their votes, and upon conviction there- of before any Court of competent jurisdiction, must be pun- ished as provided for felony. Any person who directly or indirectly barters or sells his vote, or takes, receives, or agrees to take or receive, solic- its or asks any money, property, reward, promise of reward, or favor of any kind whatever, as a consideration,, payment or reward for his vote, is guilty of felony, and upon convic- tion thereof, must be punished as provided for felony, and forever debarred from thereafter holding any office, or vot- ing under the laws of this Territory : Provided, nothing in this act shall apply to any elections in this Territory, except General Elections. Act Feb. 8th, 1887, in effect June 1st, 1887. Peualty against elector. Penaly against registrar. Penalty against election officers. Corruption of; elector. CHAPTER V. Election Precincts. Section. 510. Commissioners to establish election precincts. 511. Board may alter, etc., precincts. Section 512. Board to designate place in precinct for holding election. Section 510. The board of Commissioners of each coun- ty must establish a convenient number of election precincts therein. Sec. 511. The Board may, from time to time, change the boundaries of, create new, or consolidate established precincts; but they must not alter or change any election precinct, or change the place of holding election in any pre- cinct, after their regular July meeting next preceding any election. Sec. 512. The Board must, in its order" appointing Judges of Election, designate the house or place within the precinct where the election must be held. Ill Commissioners to establish precincts. 13 ses., 107. Board may, etc., precincts. 13 ses., 107. Board must designate place of holding election. 13 ses., 10S. Tit. IF. Lh. VI VII. JUDGES OF ELECTIONS.-POLLS. SS Judges <'f election, how appointed. 13 si-s., 1U7. Judges not of same party. N. S. Oaths, who may administer. Clerks . 13 ses. L08. Judges and clerks to be 8 worn. 13 ses , 108. CHAPTER VI. J cjdges of Election Si ction 520. Judges of Election, how appointed. 521. Judges not to be of same political party. Section 5 '-!'_!. Judges and Clerks may administer oaths. 523. Clerks. 524. Judges and Clerks to be sworn. Section 520. It is the duty of the County Commission- ers at their regular session in July, preceding a general election, to appoint three capable and discreet persons pos- sessing the qualifications of electors, to act as Judges of Election, at each election precinct; and the Clerk of the Board must make out and deliver to the Sheriff of the coun- ty, immediately after the appointment of such Judges a notice thereof in writing directed to the Judges so appoint- ed; and the Sheriff within ten days of the receipt of said notice, must serve the same upon each of the said Judges of election by registered mail. If in any precinct any of said Judges do not serve, the voters of said precinct may elect a Judge or Judges to fill the vacancy on the morning of the election, to serve at such election. Sec. 521. All Judges appointed must not be members of the same political party, in any precinct. Sec. 522. Either Judge may administer and certify oaths required to be administered during the progress of an elec- tion, i Sec. 523. The Judges must 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 in their respective precincts, until other Judges are appointed; and the said clerks of election may continue to act as such during the pleasure of the Judges of Election; and the County Com- missioners must, from time to time, fill all vacancies which may occur in the office of Judges of Election, at any elec- tion precinct within their respective counties. Sec. 524. Before opening the polls, each Judge and each Clerk must take and subscribe an oath to faithfully perforin the duties imposed upon them by law. Any elector of the township may administer and certify such oath. Time ot opening and closing the polls. 13 ses , LOO. CHAPTER VII. Openinc; and Closing the Polls. Section 530. Time of opening and closing the polls 531. Ballot-box. Section 532. Ballot-box to be exhibited. Section 530. At all elections to be held under this title. the polls must be opened at the hour of eight o'clock in the forenoon, if the regularly appointed Judgpe of election are present; but in case they are not present, then the polls must not be opened by Judges elected; until the hour of nine o'clock unless a majority of the regularly appointed Judges are present; and the polls must continue open until seven o'clock in the evening of the same day. at which time the polls must be closed; and upon opening the polls, one of the Clerks, under the direction of the Judges, must make pro. 112 531-541 POLL LISTS. Tit. II. Ch. VIII. clamation of the same; and thirty minutes before closing the polls, proclamation must be made in like manner, and the polls closed in half an hour thereafter. Sec. 531. The Judges of each election precinct must provide, at the expense of the County, a suitable ballot-box, with a lock and key and an opening in the lid sufficient to admit a single folded ballot, and no larger. The key must be delivered to one of the Judges designated by the Board. Sec. 532. Before receiving any ballots the Judge must, in the presence of any persons assembled at the polling place, open and exhibit, close and lock the ballot box; and thereafter it must not be removed from the polling place or presence of the bystanders until all the ballots are counted, nor must it be opened until after the polls are finally closed. Ballot box. 13 ses., 111. Ballot box to be exhibited. 13 ses., 111. CHAPTER VIII. Poll Lists. Section 540. Form of poll lists. Section 54 1. Want of form not to vitiate Form of Section 540. The following is the form of poll lists to be poinists. kept by Judges and Clerks of Election: N. S. POLL LISTS. Of the election held in the precinct of County of on the day of in the in the year A. D. one thousand eight hundred and A. B., C. D. and E. F., Judges, and G. H. and J. K., Clerks, of said election, were respectively sworn (or affirm- ed) as the law directs, previous to their entering on the duties of their respective offices. NUMBER AND NAMES OF ELECTORS VOTING. No. Name. No. Name. 1. 2. A. B. C. D. 3. 4. E. F. G. H. We hereby certify that the number of electors voting at this election amounts to . Clerks. / Judges of Election. A. B. C. D. , E. F. ) No list, tally, paper, or certificate returned from any election must be set aside or. ^ejected for want of form, nor So account of its not beingAih accordance with the directions of this title, if it can be satisfactorily under- stood. Attest : G. H. J. K. Sec. 541. Want of form not to vitiate. N. 8. 8 113 Tit II Ch.l V. ELECTION TICKETS AND BALLOTS. S8 545-352 CHAPTER IX. Election Tickets and Ballots. Ballot defined. 13 >ea., 109. Form of ballot. 13 ses., 109, sec. 13. Ballots to have no marks on outside. N. S. Ballots must have no marks by which it can be told who voted it. N. S. Tickets folded, bow. 13 ses., 109. Tickets, how not folded. N. S. When two Joldcd together to be rejected. N. S. When ballot not to be re- jected. 13 ses., 1 \r,. Section 545. Ballot defined. .". 1 ( i . F or rn o f b al lot. 547. Ballots to have no marks on out- side. 548. Ballot to have no marks by which it can be told who voted it. r> t'.). Tickets, how to be folded. 550. Tickets not to be folded so as to indi- cate their contents. 551. Tickets folded together must be re- jected. n,~)2. Ballots not to be rejected for ob- security in the name of person or office. Section 553. When more persons are designated for an office than are to be cho- sen, ballot to that extent must be rejected. 554. Written and printed names for the same office, which to be rejected. 555t Printed tickets not to be erased but by lead pencil or ink. 550. Two votes on same ballot for same person must be counted as one. 557. Ballots not in compliance with law not to be received. Section 545. A ballot is a ticket folded in such a man- ner that nothing written or printed thereon can be seen. Sec. 546. No ticket must be used at any election, or circulated on the day of election, unless: 1. It is written or printed on plain white paper: 2. It is four inches in width and twelve inches in length, or within one-fourth of an inch of such size : 3. If printed, the names of the persons voted for and the office designated are printed in black ink, and in long primer capitals — the name of the office in small capitals, and of the person in large capitals — and both without spaces, except between the different words or initials in each line: 4. If printed, the same margin is left abqve the printed matter as below it, and the side margins are equal in size: 5. If printed, the lines are straight, and the matter single leaded: 6. If written, the matter is so written that no sign there- of appears when the paper is folded: and 7. It is free from every mark, character, or device, or thing that would enable any person to distinguish it by the back, or when folded, from any other legal ticket or ballot. Sec. 547. No ballot must be used at any election, or cir- culated on the day of any election having any mark or thing, on the back or outside thereof whereby it might be distin- guished from any other ballot legally used on the same day. Sec. 548. No ballot or ticket must be used or circulated on the day of any election, having any mark or thing there- on by or from which it can be ascertained what persons or what class of persons, or at what time in the day such bal- lot was voted or used. Sec 549. Every ticket, when used as a ballot, must be folded crosswise (four times) from the center, so as to make the ballot three-fourths of one inch in size, and must be pressed flat. Sec 550. No ticket must be folded in a manner to in- dicate its contents when used as a ballot; but any elector, who is entitled to a vote for part and not all of the officers to be chosen, must vote an open ballot. Sec. 551. If in the ballot box twro tickets are found folded together in the form of a" ballot, they must both be rejected. Sec. 552. No ballot or part thereof must be rejected by reason of any obscurity therein in relation to the name of the person voted for or the designation of the office, if the 114 ^ 553-569 VOTING AND CHALLENGES. Tit. II. Ch. X. ■*r Board, from an inspection of the ballot, can determine the person voted for and the office intended. Sec. 553. If the names of more persons are designated or any ballot found in the ballot box for the same office, than are to be chosen for such office, then, except in the cases provided for in the next section, all the names desig- nated for such offices must be rejected, and the fact of such rejection, and the reasons therefor, must at the time of such rejection be noted on the ballot and signed by a ma- jority of the judges. Sec. 554. When upon a ballot found in any ballot box a printed name and a name written with ink or with pencil appears, and there are not so many persons to be chosen for the office, the printed name must be rejected and the writ- ten one counted, and the fact must at the time be noted on the back of the ballot, and such note must be signed by a majority of the judges. Sec. 555. When upon a ballot found in any ballot box a name has been erased and another substitute therefor, in another maimer than by the use of a lead pencil or common writing ink, the substituted name must be rejected and the name erased, if it can be ascertained from an inspection of the ballot, must be counted, and the fact thereof must be noted upon the ballot, and such note must be signed by a majority of the Judges. Sec. 556. If a ballot is found in any ballot box contain- ing the name of the x>erson an(j ^ne office for which he is designated, or either, two or more times, it must not for that reason be rejected; it must be counted as one ballot. Sec. 557. The Judges must refuse to receive or to allow to be deposited^in the ballot box any ballot offered if it is ap- parent that it isAiii compliance with the provisions of this chapter. Ballot rejected to what extent. N. S. Written and printed names for same office, which to be rejected. 13 sea., 116. Printed tickets, how erased. N. S. 7\ Ballots not to be received unless in compliance with law. 13ses., 109. CHAPTER X. Voting and Challenges. Section 565. Voting, when to commence and con- tinue. 506. Manner of voting. 567. Same. 568. Same. 569. Clerk to keep lists. 570. Who may challenge. 571. Oath of elector. Section 572. On ground of conviction of a felony. 573. If person refuse to be sworn, vote to be rejected. 574. Determination of questions of resi- dence. 575. Proceedings upon determination of challenge. Section 565. Voting may commence as soon as the polls are opened, and may be continued during all the time the polls remain open. Sec. 566. The person offering to vote must hand his ballot to one of the Judges, and announce his name. Sec. 567. The Judge must receive the ballot, and before depositing it in the ballot box must, in an audible tone of voice, announce the name of the person voting. Sec. 568. If the vote is not rejected upon a challenge taken, the Judge must place the ballot, without being opened or examined, in the ballot box. Sec. 569. Each Clerk must keep a list of persons voting, and the name of each person who votes must be entered thereon and numbered in the order of voting. 115 Voting, when commence, etc. Manner of vot- ing. 13 ses.,109. Same. 13 ses., 109. Same. 13 ses., 109 lO. Clerks to keep poll lists. 13 sea., 100. //. ('},. X. VOTING AND CHALLENGES. 570-572 Challenge. 13 sea., 1 1«». Outh of elector . 1 l(»-lll Conviction of felony. N. S. Sec. 570. A person offering to vote may be orally chal- lenged by any elector entitled to vote at the same poll, and either Judge must challenge any person offering to vote whom he knows or suspects not to be qualified. Sec. 571. One of the judges must declare the qualifica- tions of an elector, to any person so challenged, if such per- son then declare himself duly qualified, and the challenge is not withdrawn, one of the Judges must then tender him the following oath: ••Yon do solemnly swear (or affirm) that you are a male citizen of the United States, over the age of twenty-one years: that you have actually resided in this Territory for four months last past, and in this county thirty days; that you are not a bigamist or polygamist; that you are not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devo- tees or any other persons to commit the crime of bigamy or polygamy or any other crime defined by law, as a duty arising or resulting from membership in such order, organization or association, or which practices bigamy or polygamy or plural or celestial marriage, as a doctrinal rite of such organization. That you do not, either publicly or privately, or in any manner whatever, teach, advise, counsel, or encourage any person to commit the crime of bigamy or polygamy or any other crime defined by law either as a religious duty or oth- erwise. That you regard the Constitution of the United States, and the laws thereof, and of this Territory as inter- preted by the Courts as the supreme law of the land, the teachings of any order, organization or associatijanto the contrary notwithstanding, and that you have not(yx)te^Wevi- vouslff at this election. So help you God." If 'the person offering to vote be a naturalized citizen and does not produce his certificate of naturalization, the Judge of the election must propound the following interrogatories : First. In what country were you born? Second. How long have you resided in the United States ? Third. When and before whom did you declare your in- tention to become a citizen of the United States? Fourth. When and in what Court were you finally admit- ted to citizenship? Fifth . When did you last see your certificate of naturaliz- ation, and where is it now, if you know? These interrogatories must be answered under oath, and if it appear that the person offering to vote has been duly naturalized in a competent court, and he possess all the other qualifications of a voter, his vote must be received, otherwise it must be rejected. Provided, That when a per- son is entitled to vote only for a part of the officers voted for at such election, the oath must be varied accordingly, and the Clerk must enter the names of all persons who are challenged on the poll lists, and the word sworn, in brack- ets, opposite, such name and such entry shall be presump- tive evidence that such voter wras sworn, and if any person refuses to take the oath so tendered, his vote must be re- jected. Sec. 572. If the challenge is on the ground that the person challenged has been convicted of a felony and has not been pardoned, he must not be questioned; but the fact 116 §§ 573-58S CANVASSING AND RETURNING THE VOTE. Tit. II. Ch. XL may be proved by the production of an authenticated copy of the record, or by the oral testimony of two witnesses and the non-production of a pardon. Sec. 573. If any person challenged refuses to take the oaths tendered, or refuses to be sworn and to answer the questions touching the matter of naturalization, he must not be allowed to vote. Sec. 574. A person must not be held to have gained or lost a residence by reason of his presence at or absence from a place while employed in the service of the United States, or of this Territory, nor while a student at any institution of learning, nor while kept in an almshouse, asylum, or prison. Sec. 575. Ifj_the challenge is determined against the person offering t£§ vote, the ballot offered must, without examination, be returned^him; if determined in his favor, the ballot must be deposited in the ballot box. Person refusing to be sworn, vote rejected. N. S. Questions of residence, de- termination of. N. S. Determination of challenge, proceedings. N. S. CHAPTER XL Canvassing and Returning the Vote. Section 535. Canvass to be public and without adjournment. 5>»i Canvass, how commenced. Bal- lots must be made to agree with names on list. Section 587. Same. f>88. Same. Counting the 'votes. 589. Certain papers to be sealed up. Section 585. As soon as the polls are finally closed the Judges must immediately proceed to canvass the votes given at such election. The canvass must be public, in the presence of bystanders, and must be continued without adjournment until complet- ed and the result thereof declared. Sec. 586. The canvass must commence by a comparison of the poll lists from the commencement, and a correction of any mistake that may be found therein, until they are found to agree. The box must then be opened and the bal- lots found therein counted by the Judges, unopened, except to ascertain whether each ballot is single; and if two or more ballots be found so folded together as to present the appearance of a single ballot, they must be laid aside until the count of the ballots is completed; and if, on a compar- ison of the count with the poll lists, and the appearance of such ballots, a majority of the Judges are of the opinion that the ballots thus folded together were voted by one elector, they must be rejected. Sec. 587. If the ballots in the box are found to exceed the whole number of votes on the poll lists, they must be replaced in the box (after being purged as above stated) and thoroughly mingled, and one of the Judges, after being blind- folded, must publicly draw out and destroy therefrom so many ballots unopened as are equal to such excess. Sec. 588. The ballots and poll lists agreeing, or being made to agree, the Board must then proceed to count and ascertain the number of votes cast, and the Clerks must set down in their poll books the name of every person voted for, and then at full length the office for which such person re- ceived such votes, and the number he did receive, the num- ber being expressed at full length; such entry to be made 117 Canvass to be public without adjournment. 13 ses., Ill, Sec. 22. Canvass, how commenced. Ballot must agree with names on list. 13 ses., 112. Same. 13 ses. 112. Counting the votes. 13 ses., 112. Tit. II. Ch. XII. CANVASS OF RETURNS, ETC, Certain papers to be sealed ur>. 13 ses., 112. Judges of Election. as nearly as circumstances will permit, in the following form, to-wit: At an election held at the house of (A. B.) in the town (district or precinct) of , in the County of — , and in the Territory of Idaho, on the day of , A. B. the following named persons received the number of votes annexed to their respective names for the following de- cribed offices, to wit: (A. B.) had votes for Delegate to Congress: (I. J.) had votes for Member of Legislative Council: (K. L.) had votes for Member of House of Rep- resentatives, (and in like manner for any other person voted for.) Certified by us, (M. N.) O. P.) Attest: (Q. R.) (& T.) ) Clerks of Election. Sec. 589. The Judges of election must then enclose and seal one of the poll books under cover, directed to the Clerk of the Board of County Commissioners of the county in which such election was held. And the package thus sealed must be deposited in the nearest post office by one of said Judges, to be chosen by lot. And the postage thereon and the fees for registering the same must be fully prepaid. And said package must be duly registered and receipt there- for taken. And the other poll book and poll list together with the ballots must be by said Judges, placed in the bal- lot box, and by them sealed up, and then deposited with one of said Judges, to be decided by lot. if they can not other- wise agree. And the said poll books and ballots must be kept with the seal unbroken, for at least eight months un- less the same is required as evidence in a Court of law in any case arising under the election laws of this Territory ; and then only when the Judge having said ballot box in charge is served with subpoena requiring him to produce the same in Court as evidence in any such before mentioned case, when the same may be opened under the direction of said Court. Meoting of com- missioners to canvass roturns, canvas how made 13 BOH., 1 1 3. CHAPTER XII. Canvass of Returns — Declaration of Result- sions and Certificates of Election. -Commis- Section (500. Meeting of Commissioners to can- vass returns ; Canvass, how made. 601. Declaration of result. 602. District returns, how made up ; how transmitted ; Duty of Clerk receiv- ing district returns. Section 603. Returns, how made and transmitted. Canvass of vote for Delegate. 604. Duty of Secretary of Territory to send a messenger when returns are not received. 605. Defects in form of returns, when to be disregarded . Section 600. The Board of Commissioners in the several counties must act as a Board of Canvassers of Elections, and must on the tenth day after any general or special election (provided that five days additional be allowed in Shoshone county), or sooner, if all the returns be received and all the Commissioners are present, proceed publicly at their office to open the returns and can\*ass the votes of said election, and make up abstracts thereof, and it is their duty to can- vass and make up abstracts of all returns that are intelligi- 118 §§ 601-602 CANVASS OF RETURNS, ETC. Tit. II. Ch. XII. ble on their face and which are sufficiently authenticated to show what returns they are, and if any returns are rejected on account of informality, ambiguity or uncertainty — and none must be rejected for other causes — then it is the duty of the Board to deliver the returns so rejected to the Sheriff of the county, who must proceed, at once, to sum- mons and call together the Board of Judges of election of the precinct from which said return was received, and in- form them that such return has been rejected, and it is the duty of such Board of Judges to meet publicly, at the place where the election was held in their precinct, immediately after receiving such notice and at once proceed to put said return in due form, and certify to the same and for the pur- pose of so doing they may have the ballot-box brought in, and opened in their presence, the contents thereof inspected, and when said returns have been duly corrected they must be delivered into the hands of the Sheriff sealed; and the Board of Canvassers may adjourn to await the correction of said returns, for a period of not more than five days at one time, nor more than ten days in all. When said canvass is completed, the abstract must be made up and signed by the Board. The abstract of votes for Delegate to Congress must be on one sheet, and the abstract of votes for mem- bers of the Territorial Council and Assembly shall be on one sheet, and the abstract of votes for county, dis- trict and precinct officers must be on one sheet. The Board must declare the result of the election, and cause a certi- ficate of election to be given by their Clerk to any person or persons elected to a county, district, or precinct office with- in their county, and certify to each of said abstracts as here- in provided. When a tie exists between two or more per- sons for the Council or House of Representatives, or for any county, district or precinct office, the Clerk of the Board must give notice to the Sheriff of the county who must immediately advertise another election, giving at least ten days notice. It is the duty of the Clerk of the Board of Commissioners of each county on the receipt of the returns of any general or special election, to make out his certificate, stating therein the compensation to which the Judges and Clerks of the election are entitled for their services, and lay the same before the County Commissioners at their next session, and the Board of Commissioners must order the compensation paid out of the County Treasury. Sec. 601. The Board must declare elected the person having the highest number of votes given for of each office to be filled by the votes of a single county or subdivision thereof. Sec. 602. When two or more counties are united for the election of members of the Council or House of Representa- tives, or for the election of any officejrthe Clerks of the Boards of County Commissioners of the respective counties so joined, must, at the time of canvassing the votes of an election, proceed to canvass the votes of Joint Councilman or Representative, or both, or any other officer; and must immediately thereafter transmit each to the other Counties so joined, a certified abstract of all the votes cast in his county for such Councilman and Representative or other person; and the person having the highest number of votes 119 Declaration of result. 13 S6fl., 115. Returns, how made up, how transmitted. Duty of clerk receiving same. 13 sea., 115. Tit. II. Ch. XII. CANVASS OF KETUKNS, ETC. §§ 003-G05 Koturns, how made and trans- mitted; canvass of vote for Delegate. 13 ses., 114. A^w for thr respective offices must be declared duly elected, and must receive a certificate of election from the Recorder of the County first organized. In case either of the Counties so joined have not a Board of County Commissioners, the Judges of election must, immediately after they have* can- vassed the votes, as in this chapter provided, seal up one set of the poll hooks, retaining the hoxes with the ballots, as herein provided, and immediately transmit such poll books to the Clerk of the Board of County Commissioners of the County to which they are attached having the oldest organ- ization, who must immediately proceed to canvass the votes as in other cases of election in his own County, and issue certificate of election to the person found to be entitled there- to. The returns mentioned in this section may be sent by mail, express, or by some safe, private conveyance, being securely sealed up, addressed to the Clerk of the Board of County Commissioners, and endorsed on the back, Elec- tion Returns of county. Sec. 603. The Clerk of the Board of County Commis- sioners, immediately after making out the abstract of the votes given in his county, must make out a copy of each of said abstracts of votes for Delegate to Congress and mem- bers of the Legislature and transmit it by mail, express or special messenger, to the Secretary of the Territory, at the seat of Government; and it is the duty of the Secretary of the Territory, with the Marshal of the Territory, or his depu- ty, in the presence of the Governor, to proceed within thirty days after the election, and sooner, if the returns be all re- ceived, to canvass the vote given for Delegate to Congress, and the Governor must grant a certificate of election to the person having the highest number of votes, and must also issue a proclamation declaring the election of such person. In case there is no choice, by reason of any two or more persons having an equal and the highest number of votes, the Governor must, by proclamation, order a new election. Sec. 604. If the returns of the election of any county in this Territory are not received at the office of the Secretary of the Territory within twenty days after the election, the said Secretary may forthwith send a messenger to the Clerk of the Board of County Commissioners, whose duty it is to furnish the said messenger with a copy of such returns and the said messenger must be paid out of the county Treasury of said county, the sum of thirty cents for each mile he necessarily travels in going to and returning from the said county. Sec. 605. No declaration of the result, commission, or certificate must be withheld on account of any defect or informality in the return of any election, if it can with reasonable certainty be ascertained from such return what office is intended, and who is elected thereto. Duty of secre- tary to send messenger when returns not all received. 13 ses., 111. Defects in form of returns, when to be disre- garded . \juu §§ 620-625 GENERAL SCHOOL FUNDS Tit. HI. Ch.I. TITLE III. PUBLIC SCHOOLS. CHAPTER I. General School Funds. Skction. 1520. What moneys Fund. 621. School Fund Tax. <>-2. How assessed. constitute School Section 6-j:?. No fees allowed for collecting. 624. A separate fund. 625. Fines set apart for. Section 620. All moneys accruing from the sale of lands given, or that may be given, by the Congress of the United States for school purposes in said Territory, and all moneys that may be given and appropriated by the Con- gress for school purposes, unless the same by special pro- vision, be appropriated for the establishment of a university or other high school, together with any moneys, by legacy or otherwise donated for educational purposes and appro- priated for the general fund, and all moneys accruing to the Territory from the estates of deceased persons, are set apart and constitute an irreducible and indivisible Territo- rial General School Fund, the interest only accruing from which may be appropriated to the respective counties of the Territory in the manner hereinafter provided. Sec. 621. For the purpose of establishing and main- taining public schools in the several counties of the Terri- tory, it is the duty of the county commissioners of each county, at the time of levying the taxes for county and Territorial purposes, to levy a tax of not less than four mills, nor more than ten mills, on each dollar of taxable property in their respective counties for school purposes. Sec. 622. Said taxes must be assessed and cojlected in each county as other taxes on property for county and Ter- ritorial purposes. Sec. 623. The Tax Collectors, Treasurers, and other officers of the respective counties must not receive any fees or percentage for collecting, holding and disbursing the moneys so received from said taxes, and set apart for pub- lic school purposes, but they must perform all such duties without fee or reward. Sec. 624. The moneys so collected are hereby set apart and appropriated for the support of the public schools of the respective counties, and must be paid by said Collectors or other officers receiving such moneys, to the County Treasurers of the respective counties, and by said Treas- im (is must be placed in a separate account, to be called the County School Fund, and must only be drawn from each county treasury in the manner hereinafter provided. Sec. 625. For the further support of the public schools there must be set apart by the County Treasurer of each county, and placed in the County school fund as a part of the same, all moneys arising from fines and forfeitures for a breach of any of the penal laws of this Territory. 121 What moneys constitute school fund. 13 sea. 180. School fund tax . How assessed. No fees allowed for collecting. School fund a separate fund. Fines set apart for Tit. III. Ch. II. ilUTOIUAT/SUPERINTENDESTT. §§ 630-631 Territorial Su- perintendent Public Instruc- tion. Term of office, Bond. Duties of. CHAPTER II. Territorial Superintendent. Section | Section 630. Territorial Superintendent of Public ! 632. Effect of act. Instruction. 033. Repealing clause. 631. Superintendent Public Instruction, | duties of. Sec. 630. A Territorial Superintendent of Public In- struction shall be appointed by the Governor, by and with the advice and consent of the Legislative Council, and shall enter upon the duties of his office on or before the thirtieth day after his appointment and confirmation, and shall hold office for the term of two years and until his successor is appointed and qualified, and shall execute a bond in the penal sum of one thousand dollars to be approved by the Governor of the Territory, conditioned upon the faithful discharge of his official duties. Said Superintendent shall receive for such duties the sum of twelve hundred dollars per annum, to be paid quarterly in the same manner as other salaries of Territorial officers are paid. Sec. 631. It is the duty of the Superintendent of Public Instruction : First. To superintend the public schools in the Terri- tory : Second. To report to the Governor on or before the first day of December preceding each regular session of the Leg- islature the condition of the public schools: Th ird. To accompany his report with tabular statements, showing the number of school children in the Territory, the number attending public schools and the average atten- dance; the amount raised by county and district taxes, or from other sources of revenue for school purposes, and the amount expended in accordance with the provisions of this Title: Fourth. To present such suggestions as he may deem necessary in relation to the construction of school houses, the improvement and management of the public schools, to the qualification of teachers, the ways and means for rais- ing funds for the support of public schools, and for the pro- motion of the general interest of education throughout the Territory : Fifth. To prepare and have blanks printed for reports, contracts, notices and certificates of all school officers and teachers, and copies of the General School Laws of this Ter- ritory in pamphlet form, which he shall distribute, by send- ing the necessary number to each County Superintendent, and it shall be the duty of the Territorial controller upon re- ceiving from the Territorial Superintendent, a certificate of the expenses incurred in or the amount due for such print- ing and distribution of the blanks and laws aforesaid to is- sue warrants therefor in favor of the persons to whom any sum or sums may be due on account thereof not to exceed in the aggregate the sum of three hundred dollars: Sixth. To decide disputed points in school law: and all such decisions have the force of law till reversed by the Courts. 122 &5 632-641 TERRITORIAL TREASURER. Tit. J If. Ch. ILL To visit the several counties, Seventh. To authenticate with his official seal all papers and writings issued from his office, and to deliver over, at the expiration of his term of office, on demand, to his successor, all property, books, documents, maps, records, reports and all other papers belonging to his office, or which may have been received by him for the use of his office, for which he must take a receipt of his successor, and file the same in the office of the Territorial Secretary. It shall be the duty of said Territorial Superintendent to travel in the different counties of the Territory where com- mon schools are taught, so far as possible without neglecting the other duties of his office during at least three months in each year, for the purpose of visiting schools, consulting with county superintendents, perfecting titles to school property, collecting amounts due from escheated estates, holding examinations of candidates for Territorial teachers, certificates, delivering lectures to teacher's institutes and ad- dressing public assemblies on subjects pertaining to the public schools; and his necessary traveling expenses not ex- ceeding the sum of five hundred dollars in any one year, upon his certifying the same to the Governor and Territorial Con- troller,shall be paid said Territorial Superintendent out of any funds not otherwise appropriated in the Territorial Treasury, and the Controller is hereby authorized and directed to draw his warrant therefor and the Territorial Treasurer to pay the same. Sec. 632. (Sec. 4.) Nothing in the act hereby amended Effect of acts, shall operate or be construed as a discontinuance of the office hereby created, but such office shall be deemed to be in ex- istence and the sections hereby amended to be in full force and effect upon the passage of this act. Sec. 633. (Sec. 5.) All acts and parts of acts in conflict with the provision of tins act are hereby repealed. Act Feb. 10th. L887, in effect immediately. Traveling ex- penses. Repeal . CHAPTER III. Territorial Treasurer. Section 640. Territorial Treasurer, duties of. 641. Same. Section 642. Same, Section 640. It is the duty of the Territorial Treasurer duties of. to receive and hold a special deposit, and place in a separate fund, to be called the Territorial General School Fund, all moneys designated and set apart for that purpose, as speci- fied in the first section of this title, for the safe keeping and disbursement of which moneys he is responsible on his official bond. Sec. 641. It is the duty of the Territorial Treasurer to ap- same, poii ion to the several counties the amount of money in the school fund of the Territory subject to be apportioned, to which each is entitled, in proportion to the number of children residing therein between the age of five and twen- ty-one years, as shown by the last previous report of the County School Superintendent or other officers charged there- with, and make a record of such apportionment in a book to be kept for that purpose, and to furnish to the Territorial Superintendent, and to each County Treasurer, and to each 128 Tit. III. Ch. IV. COUNTY SUPERINTENDENT. ss 642-651 Same. County School Superintendent, an abstract of such appor- tionment, and at the same time to furnish to each County Treasurer a warrant for the amount to which his county is entitled, drawn on the Territorial Treasurer in conformity with the provisions of. this Title. Sec. 642. The Territorial Treasurer must, without un- necessary delay, transmit to each County Treasurer the amount due his county, as exhibited by the said warrants; and each County Treasurer must furnish to the Territorial Su- perintendent a receipt for the same, with duplicate, to the Territorial Treasurer, which receipts the said Superinten- dent and Treasurer must file in their respective offices. CHAPTER IV. County Superintendent. Section (550. County Superintendent, bow elected. 651. Duties of. How elected, compensation, oath of office. Duties of. Examination of teachers. Permits. Blanks. Section 052. Requisition for warrant ; duty of Aud- itor. 053. Special deposit ; duty of Treasurer Section 650. At each general election, there must be elected, in counties containing more than five school dis- tricts, a County Superintendent, who holds his office for the term of two years, or until his successor is elected and quali- fied. The Board of County Commissioners of such counties must B.x the compensation of such County Superintendent, and provide for the payment of contingent expenses of his office. Before entering upon his duties he must take and subscribe an oath before the County Recorder faithfully to perform the duties of School Superintendent of his county. In case of a vacancy at any time, the County Commission- ers must appoint a County Superintendent to hold office until the next general election and until his successor is elected and qualified. In counties containing not more than ^.ve school districts the Probate Judge is ex-officio County Superintendent. Sec. 651. It is the duty of the County Superintendent: First. To superintend the schools of his county: Second. To hold examinations on the first Wednesday of February. May. August and November of each year, at such place in his county as lie may select, and continue the same, if necessary, from day to day, for not more than three days, till the' examinations are completed: and all applicants ap- plying for certificates are required to be in attendance at 10 o'clock a. M., of the first day. He may call to his aid, for the purpose of assisting in the examinations, any competent person : Third He may grant permits to teach to any one whom he deems capable, until the next quarterly examination, and to teachers in remote districts in his Countv lie may grant certificates upon the recommendation of any one whom he may appoint to examine such applicant: Fourth. To distribute promptly such blanks, reports. forms and laws as are received by him from the Territorial Su- perintendent of Public Instruction for the use of School Trus- tees,Census Marshals and Teachers, and any other officer en- titled to receive the .same: 124 § 651 COUNTY SUPERINTENDENT. Tit. III. Ch. IV. Fifth. To keep on file in his office the reports of the School Trustees, Census Marshals and Teachers, and to re- cord all his official acts in a book provided for that purpose: Sixth. To make a full report annually, on or before the 15th day of October in each year, for the school year ending on the 31st day of August next previous thereto, to the Ter- ritorial Superintendent, containing a statement of the num- ber of school houses in each district in his county, the num- ber of children of school age, and the number of pupils at- tending in each district in his county, and the average at- tendance, the number of libraries and the number and char- acter of volumes in each library, in how many' districts, wfee^e a school has been taught during the past year, and for how long a time, and what school books have been used in each district, what proportion of children of school age in each district has attended the school during the past year, the amount of money paid to teachers, and the expense as nearly as may be, of conducting each school district. The statement together with such other information and sug- gestions as he may deem proper or important to the cause of education in the county, must be forwarded to the Territorial Superintendent of Public Instruction, on or before the first day of November of each year, that the same may be embod- ied in his report to the Legislative Assembly : Seventh. To appoint School Trustees to serve till the next school election, for newly organized districts, and to fill by appointment all vacancies that may occur by death, resig- nation or otherwise, or when the voters of the districts fail to elect trustees in accordance with the provisions of this Title and to draw his requisition on the County Auditor as heretnafter provided, in favor of the Board of Trustees, for the purchase of school books which may be furnished by said trustees to indigent children of the district, making the same payable out of the public school moneys in the County School Treasury apportioned to said district: Eigh th . To collect, by process of law, all penal fines not paid over by Justices of the Peace or other officers required to pay the same, and the same may be recovered by an action in which the Territor}^ of Idaho, by the County Superintend- ent is plaintiff, and the Justice of the Peace or other officer, neglecting or refusing to pay over said moneys, is defendant. Ninth. To visit and examine each school in his county at least once in each year, and for every school not so visited, the Board of County Commissioners must, on proof thereof, deduct ten dollars from his salary, which must be applied to the County School Fund. And the County Commissioners must draw a warrant on the school fund in his favor for his actual traveling expenses, incurred in visiting the schools of his county. Tenth. To preside over teachers' institutes, if any, held in his county, and to secure the attendance thereat of lecturers or other persons competent to instruct in the art of teaching, and to make such rules and regulations, for the government of teachers and pupils, as lie may deem nec- essary. Eleventh, He must, with the concurrence of at least two of the County Commissioners, adopt uniform text books for the use of the schools in his county, and enforce the sain.'. 125 Records of office. Annual reports. Appoinftrus- tees. Books for indi- gent children. Fines not paid over. Visit schools. Teachers' insti- tutes . Text books Tit Hi- ' '<• n COUNTY SUPERINTENDENT. § 651 Record of ex- amination. Reports . Books delivered to successor. Apportionment of county school fund. Suino. and such books must not be changed for a period of four ts: he may invite publishers of school books to submit their various publications for examination and comparison, and no bid must be considered unless accompanied by sam- ples of all books offered for adoption, together with a printed or written guaranty signed by the publisher or his author- ized agent, and approved by the commissioners, that if any of their books are adopted, they will maintain the quality and excellence of the books offered for adoption, and that the price will not be increased during the time for which they are adopted. The Superintendent and Commissioners are authorized to make such terms and conditions with pub- lishers as they may deem best for the interest of the county. Twelfth. To keep record of his official acts, and of the proceedings of the Examiners, including a record of the standing in each study of all applicants examined. Thirteenth. To make reports when directed by the Super- intendent of Public Instruction, showing such matters relat- ing to the public schools as may be required of him, so far as within his knowledge. Fourteenth. To preserve carefully all reports of school officers and teachers, and at the close of his official term de- liver to his successor all records, books, documents and papers belonging to the office, taking a receipt for the same, which must be filed in the office of the County Recorder. Fifteenth. It is the further duty of the County Superin- tendent to require of the County Treasurer a report of the amount of the school moneys on hand to the credit of the several school funds of the county not already apportioned, and it is the duty of said Treasurer to furnish such report when so required. It is the duty of the County School Su- perintendent upon receiving the notice from the county Treas- urer to apportion the public school moneys, both county and territorial reported by the Treasurer to be in the county treasury of the county, among the several school districts in the following manner, to wit: one-half of the whole amount reported he must divide equally among the several organized districts that have complied with the provisions of this Title, counting one district for each fifty children or frac- tion over twenty -five, the remaining one-half of said whole amount he must apportion per capita among the several districts in proportion to the number of children in each district as shown by the last report of the Census Marshal of each district, and credit each district with the amount to which such apportionment entitles it. Provided, That each district is entitled to at least one apportionment, re- gardless of the number of school children therein; such ap- portionment he must place upon record in his office and forthwith furnish a copy thereof to the County Treas- urer, and he must report the portion of each district to the Clerk of the Board of Trustees thereof. Sixteenth. The County Superintendent must make such apportionment on the first Monday in January in each year, and monthly thereafter, if there is over one hundred dollars in the School Fund; provided, that where any new school district is organized from any part of any other organized district or districts, the County Superintendent, after hay- ing ascertained the amount of moneys belonging to said 126 5§ 652-860 NEW DISTRICTS. Tit. III. Ch. V. When to draw warrant in old district or districts, and also the indebtedness and liabil- ities of said old district or districts, and deducing the same, must apportion to said new districts its due per capita pro- portion of money or indebtedness, as the case may be, from- °^^ which it may be formed. Each school district within the Territory must keep at least three months school in each school year to entitle it to draw any of the public moneys. Seventeenth. He must draw his requisition on the County Auditor on presentation of an order from the Clerk of Board favoVof school of Trustees, or of any two of the Board of Trustees; but no dl8trict8- such warrant must be drawm in favor of any school district until full and complete returns have been made by the same as required by law, and the certificate of the district Board of Trustees, showng for what purpose in accordance with the provisions of this Title the money is required, and no such school district must receive a warrant for a larger amount than there is cash in the treasury to the credit of said district; and no district must receive any of the public school moneys in which there has not been reported at least ten children by the School Census Marshal at the last report; but each county constitutes at least one school district, ir- respective of the number of children of school age in said county. Sec. 652. Upon receiving and allowing any requisition Duty of Auditor, from the County Superintendent, the County Auditor must draw his warrant upon the School Fund of the county for the amount thereof, Provided, That the Auditor must in no event draw any warrant upon the School Fund without re- ceiving such requisition, which must be recited in his war- rant. Sec. 653. It is the duty of each County Treasurer to receive and hold as special deposit, all moneys belonging to the public schools of his county, in accordance with the pro- visions of this Chapter, and pay them over only on the war- rant of the County Auditor. Duty of Treas- urer. CHAPTER V. New Districts. Section 660. Number to organize; Petitions; Public Meetings, Ada County excepted. Section 660. Whenever at least four heads of families representing at least ten children of school age, petition the County Superintendent for the organization of a new school district, or for the sub-division of or change in the bounda- ries of an old one, the Superintendent must immediately notify the Clerk of the Board of Trustees of the district or districts to be affected by the change proposed, that a peti- tion is on file in his office, and state in said notice the pro- posed change or changes to be made, and that the said peti- tion will be presented to the Board of County Commissioners at their next regular meeting for final action. The Super- intendent must present to the Board of County Commis- sioners, at their first regular meeting after having received the same, the said petition, together witli all information in his possession relative thereto, and if twenty days have elapsed since the Clerk of the Board of Trustees of the dis- 127 Number to organize. Petition. Tit ITT. Ch. VI. TRUSTEES. 88 trict to be affected by such change was notified, then the Board of County Commissioners must take into consideration with said petition any remonstrance that may be presented, and may approve, modify, or disapprove of said petition, and their disapproval shall only be upon the ground that such organization or any change of boundaries would be unjust to individuals or the community. It is the duty of the Clerk of the Board of Trustees, when notified by the Superintendent of a proposed change in his district, to post notices in at least three public places in his district that a Petition has been filed in the office of the School Su- perintendent stating the proposed change to be made, and Public meeting, calling a public meeting of the inhabitants of said district, at the school house in said district; or if there be no school house, then at some suitable place in said district, said public meeting to be held within Hve days from the time of posting said notices; which said meeting is for the purpose of afford- ing to any person or persons who might be injuriously affect- ed by said petition an opportunity of remonstrating against said petition; provided, that this section must not be construed Exception. to authorize the increase of districts in Ada County, beyond the limitation fixed in the act creating the Independent School District of Boise City. Election, term of office 12 ses., 23. Polls, time open. 12 res, 24. Duties of trus- tees. 12 ses , 24. CHAPTER VI. Trustees. Section 665. Election ; term of office. 666. Polls, time open. 667. Trustees, duties of and collection of Taxes. 668. Report of bad conduct of pupils. Section 669. Meeting of trustees ; census marshal Enumeration. 670. Compensation of census marshal. 671. Oath of Trustees. 672. Compulsory education. Section 665. A school election must be held annually on the first Monday in September of each year at each dis- trict school house. At the first school election in any newly organized district there must be elected three Trustees, one of whom must hold office for three years, one for two years and one for one year; and the ballots must designate the length of time which said Trustees are to serve. At the second and every subsequent school election, there must be elected one Trustee for the term of three years; immediate- ly after their election, they must elect from their number a Chairman and Clerk. Sec. 666. At said election, the polls shall be opened by one of the Board of Trustees, or by any voter if no Trustee be present, at one o'clock, and closed at five o'clock p. m., of the same day; said election shall be conducted generally as other county elections, except that one Judge and one Clerk shall constitute a Board of Election, and that any one of the Trustees may, and it is hereby made their duty, to qualify said Judge and Clerk to perform the duties of said Board of Election to make returns of such election to the County Superintendent immediately, which returns shall be filed in the office of the same. Sec. 667. It shall be the duty of the Trustees of each district : First. To employ teachers on a written contract, and fix their salaries and length of their term, and they have power 123 §667 TRUSTEES. Tit. III. Ck. VL Fixing salaries. 13 868., ]HW. Visit schools. Quorum. First meeting. Charge of I)roperty. to discharge any teacher for any neglect of duty or any cause that, in their opinion, renders Ids services unprofita- ble as a teacher. But no teacher can be discharged before the end of his term without a reasonable hearing; Second. To visit the schools in their districts from time to time, and not less than once a month each; Third. Any two of said Trustees constitute a quorum for the transaction of business; Fourth. At their first meeting after their election *and qualification one of their number must be chosen Clerk of their Board, and the proceedings of all meetings must be in writing, and kept in a book, signed by the Clerk thereof, and such book is a public record; Fifth. They have charge of all school property in their districts, and. as such Trustees, have power to receive in trust all real estate or other property conveyed to said school district, and to convey by deed, duly executed and deliver- ed, all the estate or interest of their districts in any school house or site directed to be sold by any vote of their dis- trict, and all conveyances made to said Board must be made in their corparate names: To Trustees of School District, No. County Idaho Territory, and to their suc- cessors in office; Sixth . Said Trustees have further power when directed by Powers of. a vote of their district to purchase, receive, hold, and con- vey real and personal property for school purposes, and to hold, purchase, hire, and repair school houses, and supply the same with necessary furniture in accordance with the provisions of this Title and to fix the location of school houses : Provived, that no Trustee shall be pecuniarially interested in any contract made by the Board of Trustees of which he is a member, and any contract made in violation of this section is null and void; Seventh. They may, by giving ten days notice in writing, special taxes, posted in three conspicuous places in their district, call at any time prior to the second Monday of September an elec- tion of the legal voters of their district, for the purpose of deciding whether or not a special tax, specifying the rate proposed to be collected, which must not exceed ten mills on the dollar of the taxable property be levied on said dis- trict for the building or repairing of school houses, or for the support of public schools in the district, and they may appoint two Judges and a Clerk of said election. The vot- ing at each election must be by ballot, on which ballot must be written or printed ''Tax Yes" or "Tax No", and none but actual residents free-holders or heads of families of said dis- trict are entitled to vote at such election. If a majority of the votes polled at such election are in favor of such tax, the Board of Trustees must immediately make such levy, and certify the fact of such election, the date thereof, and ;i careful statement of the rate of tax levied, the year for which levied, and the name or number of the district to the Clerk of the Board of County Commissioners and to the County Assessor, but not more than one such special tax can be levied during any one school year. rpou receiving such statement from the Trustees, the Assj '»r must assess upon all the property in the district subject to taxation the tax so levied and certified to him as Ballot Levy . County assessor. 9 129 ///. Ch. VI TRUSTEES. £667 Lien. Compensation of assessor. Blankb. Independent districts. Rate bill. Trustees must furnish. Innual report. aforesaid, but for that purpose he is not required to take new ttements from the owners of property, but his assessment of all special taxes so levied may be computed and made upon the valuation of property as fixed by the County Board of Equalization for Territorial and County purposes, and as appears upon the Assessment Roll in the current year, they must become a lien upon the property assessed from the date of assessment and with all other school or other taxes must become due and payable at the same time as Territorial and County taxes, and in all respects are to be collected in the same way, except that the Assessor must keep a separate list or assessment roll thereof, when paid must be named in his receipt to the tax payer, as a separate item, and he must pay them to the Treasurer as he pays other taxes, but at time of payment he must specify to the Treasurer what taxes they are, and take a separate receipt therefor, and keep separate accounts thereof. The Assessor must receive three per centum on all such special school taxes so collected by him, having first rendered his account therefor to, and having same allowed by, the Board of County Commissioners, and such Board may, at any time after the levy of such taxes, require of the Assessor such additional bonds, as the Board may deem best, not to exceed double the amount of suchjspecial tax. The said Board of County Commissioners must furnish the Assessor such blanks as are needed to comply with the pro- visions thereof. The provisions of this act must not applVto independent school districts now established, which have special laws for the collection of school taxes. Eighth. When any repairs are required not exceeding the sum of twenty-five dollars in value, the Trustees may in their discretion levy and collected a rate bill to be paid by all the parents or guardians of all pupils attending such school in proportion to the number of pupils sent to said school by each parent or guardian, but no pupil can be pro- hibited from attending such school on account of his parent's or guardian's inability to pay said rate, and the clerk of said school district has the same power to enforce the collection of the amounts of said rate bill, as is given to tax collectors in the collection of Territorial and County taxes; Ninth. The Trustees of the respective districts must fur- nish all things not otherwise herein provided for, necessary for the use and comfort of the schools in their districts — such as fuel, improvements, maps, apparatus, and library, and for such purposes may audit and allow accounts against the school fund of their school districts not to exceed twenty per cent, of the amount of said school fund; Tenth. The Trustees of each district must make a full statement, in writing, annually, on the first day of Septem- ber, to the County Superintendent of their county, of all matters pertaining to their schools, such as the building and repairing of school-houses, the cost of the same, and from what source paid, the number of months schools have been taught in their districts during the preceding school year, what the monthly salaries paid teachers, and generally such information as will promote the interest and advance the cause of education, and make such other reports as may be 130 §§ 668-672 TRUSTEES. Tit. 111. Ch. VI. required by the Superintendent of Public Instruction or by County Superintendents. Sec* 668. It is the duty of Trustees of the respective dis- tricts on receiving a report from any teacher, of the dis- orderly or bad conduct of large pupils, to decide how such insubordinate pupils be punished, or whether they be dis- missed from school, and the teacher must enforce the deci- sion so made. Sec. 669. Said Trustees must, on the first Monday of July of each year, which is hereby declared a day for a re- gular meeting of said Board, appoint a Census Marshal who must immediately qualify by taking an oath faithfully to discharge the duties of his office to the best of his ability and the Clerk of the Board or either of the Trustees is here- by authorized to administer such oath or affirmation; said Census Marshal must proceed immediately after his appoint- ment and qualification to take a correct enumeration of the children in his district between the ages of five and twenty- one years; provided, that the Census Marshal must not enumerate any children in his district who are not bona fide residents of the same. After the Census Marshal has fin- ished his enumeration he must forthwith report the same to the Trustees of his district, who must hold a meeting to re- ceive the same, and said Trustees must cause a true and cer- tified copy of said Census, together with a certificate of the Marshal having performed his duties, which census or enum- eration and certificate must be forthwith transmitted to the County Superintendent of his county. Sec. 670. For such services well and faithfully perform- ed said Census Marshal is allowed, as full compensation, ten cents for each child so enumerated, and the Clerk of the Board of Trustees must furnish said Census Marshal a cer- tificate of the performance of his duty; and upon presenting such certificate, the County Superintendent must draw his requisition upon the County Auditor for the amount so al- lowed in favor of said Census Marshal, and must charge the same against his district. Sec. 671. Trustees must qualify within fifteen days af- ter their election by taking the official oath and an oath faithfully to perform the duties of their office to the best of their ability, and to promote the interest of education in the district, which oath may be administered by either of the re- tiring Trustees, or any civil officer authorized to administer oaths, and filed in the office of the County Superintendent. Sec. 672. Every plfeent guardian or other person in the Territory of Idaho, having control and charge of a child or children between the ages of eight and fourteen years, shall be required to send such child or children to a public •school for a period of twelve weeks in each school year, at least eight weeks of which shall be consecutive, unless such child or children are excused from such attendance by the Board of* School Trustees of the School District in which such parents or guardians reside, upon its being shown to their satisfaction that the bodily or mental condition of such child or children has been such as to prevent his, or her, or their attendance at school; or application to study for the period required, or that such child or children, are taught in a private school or at home in such branches as are usu- 131 Bad conduct of pupils. 13 ses., 190. Meeting of trustees. 12 ses., 27. Census, Marshal. Enumeration of children. Compensation. 12 ses., 37. 13 ses., I!M). Oath of trustees. 13 ses, 101. Compulsory education. Excuses. Tit. III. Ch. VI. TRUSTEES. g 672 List of children. Collection of penalty. Children who labor. Penalty. Books for in- digent children. Disposition of fines. Notice posted. ally taught in a primary school, or have already .acquired the ordinary branches of learning' taught in the public schools: provided in ca.se a public school shall not be taught for the period of twelve weeks, or any part thereof, during the year, within two miles by the nearest traveled road of the residence of any such parent or guardian within the school district — he or she shall not be liable to the provis- ions of this act. 1. It shall be the duty of the Board of School Trustees of each school district in this Territory, on or before the first Monday in September in each year, to furnish the Principal in each public school taught in such district with a list of all children resident in the school district between the ages of eight and fourteen years, said list to be taken from the report of the School Census Marshal. At the beginning of each school month thereafter it shall be the duty of the Principal of each school, in such district, to report to the Board of School Trustees of such district the names of all children attending school during the previous school month, when, if it shall appear at the expiration of three school months, to the Board of School Trustees that any parent, guardian or other persons having charge or control of any child or children, shall have failed to comply with the pro- visions of this act, the Board shall cause demand to be made upon such parent, guardian or person, for the amount of the penalty hereinafter provided; when if such parent, guardian or other person, shall neglect or recuse to pay the same, within five days after making of said demand, the Board shall commence proceedings in the name of the school district for the recovery of the fine hereinafter provided, before any court having jurisdiction, provided that noth- ing in subdivision I., shall apply to any child or children who are actually and necessarily compelled to labor for the support of a parent or parents. 2. Any parent, guardian, or other person having control or charge of any child or children, failing to comply with the provisions of this act, shall be liable to a fine of not less than five dollars, nor more than twenty-five dollars, for the first offense; nor less then ten dollars, no more than fifty dollars for the second and each subsequent offense, besides the cost of collection. 3. Whenever it shall appear to the satisfaction of the Board of School Trustees, of any school district in this Ter- ritory, that the parents, guardians, or other persons having control of any child or children, in attendance upon the public school of said district, in accordance with the provi- sions of this act, are unable to procure suitable books, sta- tionery, etc., for such child or children, it shall be the duty of such Board to procure or cause to be procured for such child or children, all necessary books, stationery, etc., the same to be paid out of the fund of said school district in the same way that other claims against the school district are now allowed and paid. 4. All fines collected under the provisions of this act shall be paid into the county treasury, the same to be placed to the credit of the school district collecting the same. ■V The Board of School Trustees in each school district shall cause to be posted annually in three public places in 132 §§ 680-G83 TEACHERS. Tit. Ill Ch. VII. their district, notices of the requirements and penalties of this law. [Act Feb. 9th, 1887, in effect Aug. 1st, 1887.] CHAPTER VII. Teachers. Section. Section <>S0 Duties of school examiners ; certify (>S3. Territorial certificates. cate to teach ; graded certificates. 684. Cost of certificates. 681. Certificates necessary to teach. Per- 685. Expense of examination mits. <)S(5. School register. 5>7. Adjourn school. I 698. Expense of common schools, paid. How Section 695. The County Superintendent in any county in this Territory containing ten. or more organized school districts nuiv. when lie believes that educational interestsof 134 §§ 696-708 MISCELLANEOUS. Tit. III. Ch. IX. his county would be promoted thereby, hold annually a Teachers' Institute at such time as he may designate, and such Institute must continue in session not less than two nor more than five days. He must give at least ten days notice of the time and place of holding such Institute by publica- tion in some newspaper published in the county, if there be one; if not, by a written notice to each qualified teacher in the county. Sec. 696. It is the duty of all teachers engaged in the county, and of all persons holding certificates, to attend such Institute and participate in the exercises thereof, and all teachers who may have charge of schools at the time of holding the annual Institute must adjourn their schools for the time during which the Institute is held. Sec. 697. All teachers who may adjourn school for the purpose of attending any annual Institute must be allowed the same pay while in actual attendence as when teaching, and the County Superintendent must certify to the number of days' attendence of each teacher, and the Trustees of the several districts must count them as so many days lawfully employed. Sec. 698. The County Superintendent must provide a building, fuel, lights, stationery, janitor's services and all things necessary for the holding of the Institute, and must present an itemized account of such expenses, not to exceed fifty dollars, to the Board of County Commissioners, and it must be paid from the Current Expense Fund of the county. Length of session. Teachers must attend. Adjourn school. Expenses of, how paid. CHAPTER IX. Miscellaneous. Section 705. Books to be used. 706. Non-resident pupils. 707. School year ; school month. Section 708. Report of County Superintendent, penalty. Section 705. No books, papers, tracts, or documents of a political, sectarian, or denominational character must be used or introduced in any school established under the pro- visions of this Title, and any and every political, sectarian, or denominational doctrine is hereby expressly forbidden to be taught therein, nor shall any teacher nor any district re- ceive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this Title. t Sec. 706. Trustees must determine whether pupils out- side of their district may attend school in such district and upon what terms. Sec. 707. The school year within this Territory commen- ces on the first Monday of September of each year. \ school month is four weeks of five school days each. Sec. 708. If the County Superintendent fails to make a full and correct report to the Superintendent of Public In- struction of all statements required by law to be made, he for- feits the sum of one hundred dollars from his salary, and the Board of County Commissioners are hereby authorized and required to deduct therefrom the sum aforesaid, upon infor- mation from the Superintendent of Public Instruction thai such reports have not been made. 135 Books to be used. 12ses., 32. Non-resident pupils. School year, school month. Report of Su- perintendent. Penalty. Tit. III. Ch.X. BONDS TO BUILD OR PROVIDE SCHOOL HOUSES. §§720-723 CHAPTER X. Bonds to Build or Provide School Houses. Question sub- mitted to vote. i:i ses., 59. Election, bow conducted. Bonds. Hale of bonds. Faith pledged for payment. Section Sfction 720. Question submitted to vote. / 25. Redemption 721. Election, bow conducted. Bonds. 726. Payment of interest. 722. Sale of Bonds. 727. Bonds to be printed. 72:>. Faith pledged for payment. 728. Failure to pay over proceeds. 724. Tax to pay. Section 720. The Board of School Trustees of any school district may. whenever a majority so decide, submit to the electors who are resident freeholders or heads of families of the district, the question whether the Board be authorized to issue coupon bonds to a certain amount not to exceed four per cent, of the taxable property in said district and bearing a certain rate of interest not exceeding eight per centum per annum, and payable and redeemable at a certain time, for the purpose of building or providing a school house in said district with all necessary furniture, as desks, blackboards, globes, charts, outline maps, etc. Sec. 721. Such elections must be held in the manner prescribed for special election in chapter YI of this Title, the ballots must contain the words ''Bonds Yes", or "Bonds No". If two-thirds of the votes at such election are "Bonds Yes", the Board of Trustees must issue such bonds in such forms as the Board may direct ; they must bear the signature of the Chairman of the Board of Trustees, and be counter- signed by the Clerk of the school district; and the coupons attached to the bonds must be signed by said chairman and said clerk. And each bond so issued must be registered by the County Treasurer in a book provided for that purpose, which must show the number and amount of each bond, and the person to whom the same is issued. And the said bonds must be sold by the said school trustees, as hereinaf- ter provided. Sec. 722. The School Trustees must give notice in some newspaper published in the Territory, for a period of not less than four weeks, to the effect that the said school Trus- tees will sell said bonds, briefly describing the same, and stating the time when and the place where such sale will take place. Provided, that the said bonds must not be sold for less than their par value, and the Trustees are author- ized to reject any bids, and to sell said bonds at private sale if they deem it for the best interest of the district, and all money, arising from the sale of said bonds must be paid forthwith into the Treasury of the county in which said district may be located, to the credit of said district, andthesame are immediately available for the purpose of building or providing the school house authorized by this chapter. Sec. 723. The faith of each school district is solemnly pledged for the payment of the interest and the redemption of the principal of all bonds which are issued under this chapter, and for the purpose of enforcing the provisions of this chapter, each school district is a body corporate, and may sue and be sued, by or in the name of the Board of chool Trustees of said district. 136 724-72!) DISTRICTS. Tit. III. Oh. XL Sec. 724. The School Trustees of each district must as- certain and levy, annually, the tax necessary to pay the interest as it becomes due, and a sinking fund to redeem the bonds at their maturity, and said tax is a lien upon the property in said school district, and must be collected in the same manner as other taxes for school purposes. Sec. 725. When the sum in the sinking- fund equals or exceeds the amount of any bond then due, the County Treas- urer shall post in his office a notice that he will, within thirty days from the date of such notice, redeem the bonds then payable, giving the numbers thereof, and preference must be given to the oldest issue; and if at the expiration of the said thirty days, the holder or holders of said bonds shall fail or neglect to present the same for payment, interest thereon must cease; but the Treasurer shall at all times thereafter be ready to redeem the same on presentation, and when any bonds are so purchased or redeemed the County Treasurer must cancel the same by writing across the face of each bond in red ink the word "Redeemed" and date of such redemption. Sec. 726. The County Treasurer must pay out of any moneys belonging to a school district the interest upon any bonds issued under this chapter by such school district when the same becomes due, upon the presentation at his of- fice of the proper coupon, which must show the amount due and the number of the bond to which it belonged; and all coupons so paid must be reported to the School Trustees at their first meeting thereafter. Sec. 727. The School Trustees of any district must cause to be printed or lithographed, at the lowest rates, suitable bonds, with the coupons attached, when the same become necessary, and pay therefor out of any moneys in the coun- ty treasury to the credit of the school district. Sec. 728. If any of the School Trustees fraudulently fail or refuse to pay into the proper county treasury the money arising from the sale of any bonds provided for by this Chapter, they are guilty of felony. Tax to pay. Redemption. Payment interest. Bonds to ba printed. Failure to pay over proceeds. CHAPTER XI. Pkovidixg for the Establishing of Independent School Districts. Section 7-Ji>. formation of Independent Districts. 730. Rights and obligations. Powers. 731. Officers. 732 . Election of Trustees . Sfction 733. Contracts, when void. of Board. 73 1 . Meetings of Board . 735. Powers of Board. ; 73<>. Existing laws. Organization Formation of independent districts. Section 729. When any school district within this Ter- ritory as defined by the Board of County Commissioners, lias within its limits taxable property of the amount of two hundred thousand dollars, or over, as shown by the last as- mient roll for the county, it may be organized into an independent school district, upon one-fifth or over of those within the district, who are qualified to vote at school elec- tions itioning the said Board forthe establishment of such district as an independent school district, and if a greater Election. number of such qualified voters do not remonstrate against such establishment, the Board must first, clearly by its or- 187 Tit. III. Ch.XL DISTRICTS. §§ 730-732 Order. Name. Bights and obligations. Powers. Powers. Officers. Trustees . Election of trustees . Notice. Elections-. Tie vote der of record, define the boundaries of such district, if not already done, and within one month order that the question of so establishing such independent school district must be submitted to a vote of all the electors of the district, who un- der the provisions of this title, are authorized to vote for the levy of taxes and issue of bonds, and must make the neces- sary arrangements for such election, giving at least twenty days notice thereof and the time and place of holding the same. If a majority of those so voting, vote in favor of so or- ganizing such independent district, said Board must make its order of record, and declare such district established, and designate it as the Independent School District (state name and number of District) in County, Idaho Territory. Sec. 730. The district so established is constituted a body corporate and succeeds to the title of all property rights and privileges, and assumes, and must discharge and pay all debts, obligations, and duties belonging to, or devolv- ing upon the old district of which it is so framed and es- tablished, and by its corporate name it may : First. Make contracts, sue, and be sued. Second. Take, hold, and convey such real and personal property only, as is needed for actual school purposes. Third. To have a Corporate Seal. Fourth. To choose such officers as herein provided for. Sec. 731. The officers of such district consist of a Board of Trustees composed of six qualified electors who are resi- dent freeholders within the district. The first Board of Trustees must be appointed by the Board of County Commissioners, immediately after the dis- trict is so established, and hold their offices for terms as fol- lows, to wit: Two until the next school election held under the provi- sions hereof, two for two, and two for four years, after such election, and until their successors are elected and qualified, and said Board so appointing must designate the term of each Trustee so appointed. Sec. 732. There must be an election for two members of the Board of Trustees, to be held on the first Monday of September following the establishment of such district, and bi-ennially thereafter an election must be held to elect two Trustees; the Clerk of the Board must give at least ten days notice of the time and place of such election by publication in a newspaper or by three posted notices in the district, and at all elections under this Chapter, voters must have the same qualifications prescribed by this Title for school elec- tions. At all such elections any person offering to vote may be challenged and required to take all oaths required of voters at general elections in this Territory, and on refusing to take such oaths must not be allowed to vote, and the Board of Trustees may appoint, for all such elections, two Judges and one Clerk. Voting must be by ballot and if upon counting the ballots there is a tie, and three qualified persons have the highest, and an equal number of votes, the Board of Trustees must select two from among the three, and when there is a failure 138 §§ 733-735 DISTRICTS. Tit. 1(1. Ch.XL Vacancies. Contracts when void. Oath . to elect by reason of a tie vote, the Board of Trustees must select. If any Trustee dies, removes from the district, or ceases to have the qualifications for such office, or from any cause his office is vacant, or he neglects or refuses to act, or with- out excuse ceases to attend the meetings of the Board for four successive regular meetings, thereof, his office thereby becomes vacant, and a majority of said Board of Trustees may appoint another qualified person to fill his unexpired term. Sec. 733. Xo Trustee must be interested in any contract let or made by or with the Board, or any officer thereof, or in any supplies furnished to or for said district or a surety for the performance of any contract with the said Board or district, or the agent or partner of any contractor, with said Board or district, and no action can be maintained, or recov- ery had against said Board or district upon any contract or obligation in which any Trustee is so interested, but the same is void. Each Trustee must before entering upon the duties of his office take and subscribe the official oath, which must be filed with the County School Superintendent, and immediate- ly after the appointment of such Trustees, by the Board of County Commissioners as above provided, and after each bi-ennial election, the Trustees, or a majority thereof, must meet at the school house and organize as a Board, and from their number must elect a Chairman, a Clerk, and Treasurer, or they may elect as Treasurer some competent and re- sponsible person, who is not a Trustee. No school officer whatever must receive any pay or com- pensation for his time or services, or in any way be allowed to make any pecuniary profit or a gain by reason of his of- fice, and any school officer or person who has the custody, in any way, of any school funds must give good bonds, with at least two good sureties , in double the amount of the funds likely, at any time, to be in his custody. Sec. 734. Regular meetings of the Board of Trustees must be held on the second Monday of each month, and special meetings may be called by the Chairman of the Board, or by any two Trustees, by personal notice of the time and place of such meeting to each member of the Board, or if he cannot be found, by leaving such notice at his place of residence, with some person of suitable age and discretion. Four Trustees constitute a quorum for the transaction of any business, but a less number may adjourn any regular meet- ing from time to time until a quorum can be obtained, but no meeting of the Board, not provided for by its rules or by law. is Legal, unless all the members thereof have; been notified as provided for in this section. Sec. 735. The Board of Trustees of said district must e power to, and it is their duty : First. To make such by-laws for their own government By-iaws. and for the government of the schools of the district as they may deem expedient, not inconsistent with the provisions of this Chapter. Second. To employ or discharge teachers, mechanics and Teachers. laborers, and to fix, allow and order paid, their salariesand 139 Organization of board. No compensa- tion. Bond. Meetings of board . Quorum. Powers of board. Tit. Ill Ch. XL DISTRICTS. §73G Tuition. Text books Cban^i' Furniture. School houses. Build. Pupils. Teachers. School hours. Indigent pupils Book*. Sectarian books. Teachers. Moaals. Existiu< laws. compensation, and to determine the rates of tuition for now residenl pupils. Third. To fix the course of study, the exercises, and the kind of text books to be used: Provided, that but one kind of text books of the same grade, or branch of study, shall be used in the same department of the school, and that after the adoption of any kind of book it must not be changed in less than three years, unless the price thereof is unwarrantable advanced, or the mechanical quality lowered, or the supply stopped. Fourth. To provide for school furniture, fixtures and ap- paratus, and for everything needed in the school house or for the use of the Board. Fifth. To rent, repair and insure school houses and pro- perty, and preserve the same for the benefit of the schools of the District. Sixth. To build or remove school houses and buildings, and to purchase or sell school lots. Seventh. To suspend or expel pupils from school, who re- fuse to obey the rules thereof, and to exclude from school, children under six years of age. Eighth. To determine the number and qualifications of teachers that shall be employed, and length of time that the school shall be kept; to fix the time for the opening or clos- ing of school, and for the dismissal of primary pupils before the regular time for closing schools. Si nth. To provide books for the use of indigent children, on the written statement of the teacher that the parents of such children are not aide to purchase them. Tenth. To require pupils to be furnished with proper and suitable books, as a condition of membership in the schools. Etc re nth. To exclude from the schools, and school libraries of said district, all books, tracts, papers, or catech- isms, of a sectarian nature. Twelfth. To require teachers to conform to the law and the regulations of the Board. Thirteenth. To protect the morals and health of the pupils while at school. Sec*. 736. All the provisions of this Title, providing for a public school system, wherein not contradictory to or in- consistent with, the provisions of this Chapter, and which may be made applicable to the objects hereof, are adopted as a part of the law governing the establishment and manage- ment of Independent School Districts. [Act of February loth, L887, in effect immediately . ] 140 §§ 740-74:3 ORDNANCE STORES. Tit. IV. TITLE IV. ORDNANCE STORES. Section 742. Loan of arras to Grand Army posts. 743. Arms to be drawn from Federal Gov- ernment. Section 740. Ordnance under control of govern- ment. 741. Expenses for keeping same, how paid. Section. 740. All ordnance and ordnance stores be- longing to the Territory are under the control and manage- ment of the Governor as commander-in-chief of the militia of the Territory to be by him held as the property of the Territory and to be used solely for the purpose of public de- fense under such rules and regulations as the Governor may prescribe. Sec. 741. For the purposes of defraying the necessary expenses of preserving ordnance, and ordnance stores, the Territorial Controller must, upon the written order of the Governor, issue warrants upon the Territorial Treasurer for the sum necessary to meet such expenses; said warrants to be paid out of any money in the treasury not otherwise ap- propriated: the said ordnance and ordnance stores must be stored in the Capitol building, and the warrants drawn by the order of the Governor, for all expenses connected with said ordnance and ordnance stores, must not exceed one hun- dred and fifty dollars per annum. Sec. 742. That the Governor of this Territory is hereby empowered to loan to the Grand Army Posts within the Territory, arms and equipments not to exceed six stands to each Post, upon said Grand Army Posts receipting for the same: with a provision that they be returned on demand, and without expense to the Territory. And in case any part of said arms and equipments are lost by fire or otherwise, that the value thereof as stipulated when the arms were drawn, together with the freight thereon, be returned to the Territorial treasury. Sec. 743. And, whereas, this Territory has to its credit under the law for arming the militia (Sec. 1661 Revised Statutes) the sum of eleven thousand two hundred fifty- seven and 68-100 dollars ($11,257 68-100) which can be drawn by the Governor at the prices named in said statutes, there- fore be it further Resolved, That the Governor of the Territory of Idaho be requested to draw said arms and equipments, and of such kinds as he may deem advisable, and upon receipt of the same, said* arms and equipments must be stored in the Capi- tol building and must be under the care and supervision of the janitor of said building, subject to the order of the Gov- ernor. [Resolution Jan.. 15. 1887, in effect immediately.] 141 Ordnance under control of government. Conip, laws, 717. Expenses for keeping same, how paid. Comp. laws, 717. Loan of arms to Grand Army posts. Arms to be drawn from federal govern- ment. Tit. V. Ch. I. INSANE ASYLUM. §§ 750-752 TITLE V. PUBLIC INSTITUTIONS. Under control directors . 13 ses., 05. Board, how appointed, etc. 13 ses., 65-(i<>. of Powers and du- ties of board. 13 ses.. 0(5-67. CHAPTER I. Insane Asylum. Section 750 751 Under control of Board of Directors. Board, how appointed, and qualified, and organized. 752. Powers and duties of Board. 753. Moneys for support of Asylum, how drawn. 754. Board must contract for supplies. 755. Compensation of Directors. 750. Qualifications of Medical Superin- tendent. 757. Must reside at Asylum. 758. General powers and duties. 759. Must estimate expenses and report to Directors. 700. Salary. 701. Bond. 702. Salaries, when payable. 703. Approval and filing of official Bonds . 704. Discharge of patients on recovery. 705. Insane convicts ; reception and return of. 700. Person having contagious disease not admitted. Section admission of non- 708. 709. 770. 771. 772. 773. 774. 775. 770. 777. 778. 779. 780. 781. 782. Restriction upon residents. Disposition of moneys unexpended at discharge or death of patient. Examination, before whom. Two witnesses. One physician. Witnesses, duty of. Physicians, duty of. Certificate of physicians. To be made on forms, etc. Action of Judge, Commitment. Sheriff to deliver insane person, com- mitment, etc., at Asylum. Money found on insane person to be delivered at Asylum. Idiots, imbeciles, etc., not to be ad- mitted. Fees of Sheriff. Fees of physicians. Insane person able to pay. Section 750. The Idaho Insane Asylum located at Blackfoot, is under the management and control of a Board of Directors, consisting of three persons. Sec. 751. Said Board of Directors must be nominated, and by and with the advice and consent of the Legislative Council appointed by the Governor. Their term of office is two years and until their successors are appointed and qualified. Before entering upon the duties of their office they must each take and subscribe an oath to support the Constitution of the United States and well and faithfully dis- charge their duties according to law, and the oath provided for county officers. They must elect one of their number President, and another Secretary. Sec. 752. The powers and duties of the Board of Direc- tors of the Insane Asylum are as follows : 1. To make by-laws, not inconsistent with the laws of this Territory, for their own government and the Government of the Asylum. 2. To hold stated meetings at the Asylum for the transac- tion of business quarterly, and they may provide in their by- laws for calling special meetings when necessary. 3. To keep a record of their proceedings open at all times to the inspection of any citizen. 4. To elect a medical superintendent, to hold his office dur- ing the pleasure of the Board. 5. To receive, take and hold property, both real and per- sonal, in trust for the Territory and for the use and benefit of the Asylum. 6. To appoint all officers and employes of the Asylum, prescribe their duties, and remove them when in their judg- ment the good of the public service requires. ;. To visit the Asylum once in three (3) months, and keep themselves constantly advised of all items of labor and ex- 142 §§ 753-754 INSANE ASYLUM. Tit. V. Ch. I. pense, and the condition of the buildings and the property of the Asylum, and shall have power toinake such improve- ments, as. in their judgment, are actually necessary for the care of the inmates; not to exceed four thousand (4,000.00) dollars, for permanent improvements, for the years 1887 and L888. The Board have discretionary power in case of absolute necessity to remove patients to the nearest possible safe and appropriate place. 8. To cause the accounts of the asylum to be so kept and reported as to show the quality, quantity, cost and vendor of every article purchased. 9. To examine and audit the expenditures for salary of employes and all other expenses incident to the conduct of the Asylum, and care and maintenance of the patients, and if approved by them, to certify the same to the Controller. 10. To make regulations and fix the terms for the ad- mission of insane persons who are not indigent or who are not residents of the Territory. All receipts from such source must be naid into the Territorial treasury. 11. To make diligent inquiry into the departments of labor and expenses, the condition of the Asylum and its property. 12. To report to the Governor on the loth day of Septem- ber in each year, a statement of the receipts and expendi- tures, the condition of the Asylum, the number of patients during the preceding year under treatment, and of such other matters touching the duties of the Board as is advisa- ble. To make a bi-ennial report to the Governor substan- tially in the same manner as above, thirty (30) days before each session of the Legislature. To report to the Territorial Controller, which must be a certified copy of the records of each meeting of the Board. Sec. 753. All itemized bills of purchases and other ex- Money for sup: penditures made, when examined by the Board of Directors g£j drawn!™31' and found correct, must be certified by the President of the Board then sitting, and the same transmitted to the Control- ler, to be audited and allowed by him, in the same manner as other accounts against the Territory are audited and al- lowed. And the Territorial Controller must draw his warrant on the Territorial Treasurer for the amount so audited by him. And the said Treasurer is hereby authorized and required to pay the same out of any money in the Territorial treas- ury, not otherwise appropriated. Sec. 754. Upon the receipt of each report from the Sup- Board must erintendent of provisions, fuel, and clothing required as sSppUes. f°r hereinafter provided, the Board of Directors must advertise i3ses„68. in two newspapers published in the Territory, for four suc- cessive weeks, for contracts for furnishing said supplies, or so much thereof as they deem necessary. The Board may reject any and all bids, and no more than the market price must be paid for any article purchased for the Asylum. All contracts awarded must be to the lowest bidder upon his giving satisfactory security for the faithful performance of his contract. Nothing in this section prevents the Board from purchasing contingent supplies at the lowest market rate until the next semi-annual letting. No director, ttuper- 143 Tit. V. Ch. I. INSANE ASYLUM. ^ 750-762 Oompi i titiou of tors. Qualifications medical super- intendent^ 13 see., (i. Must reside at and give his en- tire time to the asylum. 13 ses., (i/ . General powers and duties. 13 ses., O Estimate of expenses. Bond . Siilari< is, v hen ])Myal)l«-. intendent or employe must be pecuniarily interested in any contract for supplies furnished for the Asylum. Sec. 755. The Directors must each be paid five (85.00) dollars per day for each day actually employed, which must include the time employed in traveling to and from the Asy- lum; provided that no Director shall receive more than one hundred ($100.00) dollars per annum for per diem service. And in performing the mecessarvvi^itations required by this chapter, and must be remrorlbeTfea for all the necessary expenditures incurred in their official duties: such accounts to be allowed and paid as other accounts against the Asylum are allowed and paid. Sec. 756. The Medical Superintendent must be a grad- uate in medicine and must have practiced his profession five years after the date of his diploma. Sec. 757. He must reside at the Asylum and give his entire time and attention to promote the best interests of the patients. His duties not specified in this chapter, must be prescribed by the Board of Directors in their by-laws. Sec. 758. He is the chief executive officer of the Asy- lum, with powers and duties as follows: 1. To control the patients, prescribe the treatment, and prescribe and enforce the sanitary regulations of the Asy- lum. 2. With the consent of the Board of Directors, to fix the number and compensation of, and appoint, control, and re- move the attendants and assistants. 3. To prescribe and enforce the performance of the duties of the attendants and assistants. 4:. To ascertain and report to the Board of Directors the amount, character, and quality, of provisions, fuel, and clothing required for the six months ending on the first of June and December in each year. 5. With the consent of the Board of Directors to make any expenditure necessary in the performance of his duties, except for provisions, fuel and clothing. 6. To receive and pay to the Territorial Treasurer all moneys found upon insane persons. 7. To keep a daily record of his official acts in the mode prescribed by the by-laws. 8. To make up his annual accounts to the first of July in each year, and as soon thereafter as possible to report a statement thereof, and of the general condition of the Asy- lum, to the Board of Directors. Sec. 759. He must estimate quarterly in advance, the probable expenses of the Asylum, and submit such estimate to the Directors at their stated meetings, for their considera- tion and approval. Sec. 760. The salary of the Medical Superintendent must be fixed by the Board of Directors. Sec. 761. He must execute an official bond in the sum of five thousand dollars with two or more sufficient sureties, conditioned that he will faithfully discharge his duties as such officer. Sec. 762. The salaries and compensation fixed by the provisions of this chapter must be paid quarterly. 144 63-776 INSANE ASYLUM. Tit. V. Ch. L Sec. 763. The official bonds required by the provisions of this Chapter must be approved by the Board of Directors, and filed in office of the Controller. Sec. 764. Insane persons received in the Asylum must upon recovery be discharged therefrom. Sec. 765. Insane convicts must be received into the In- sane Asylum, and returned to the Territorial Prison again as provided in the Penal Code. Sec 766. No person laboring under any contagious or infectious disease must be admitted into the Asylum as a patient. Sec. 767. No insane person non-resident of this Territo- ry, must be received into the Asylum unless he became in- sane within this Territory, and the indigent insane of this Territory must have the preference. Sec. 768. If at the time of the discharge of a person from the Asylum, or after the death and burial of any per- son therein confined, there remains in the custody of the Directors or Superintendent any moneys paid for the sup- port or maintenance of such person, it must, upon demand, be repaid. Sec. 769. Whenever it appears by affidavit to the satis- faction of a magistrate of the county that any person within the county is so far disordered in his mind as to endanger health, persons, or property, he must issue and deliver to some peace officer for service a warrant, directing that such person be arrested and taken before any Judge of a Court of record within the county for examination. Sec 770. When the person is taken before the Judge he must issue subpoenas to two or more witnesses, best ac- quainted with such insane person, to appear and testify be- fore him at such examination. Sec 771. The Judge must also issue subpoenas for -at least one graduate of medicine to appear and attend such ex- amination. Sec 772. At the examination the persons subpoenaed must appear and answer all questions pertinent to the matter under investigation. Sec 773. The physician must hear such testimony, and must make a personal examination of the alleged insane person. Sec 774. The physician, after hearing the testimony and making the examination, must, if he believes such person to be dangerously insane, make a certificate, under his hand, showing as near as possible: 1. That such person is so far disordered in his mind as to endanger health, person, or property; 2. The premonitory symptoms, apparent cause or class of insanity, the duration and condition of the disease; 3. The nativity, age, residence, occupation, and previous habits of the person; 4. The place from whence the person came, and the length of his residence in this Territory. Sec. 775. The certificate must be made in the form pre- scribed by, and, if they can be had, upon blanks furnished by the Medical Superintendent of the Asylum. Sec. 776. The Judge, after such examination and cer- tificate made, if he believes the person so far disordered in 10 145 Approval of bonds, etc. Discbarge of patients. Insane convicts. 13 ses., 71. Person baving contagious disease. 13 ses., 68. Non-residents, admission of. 13 ses., 68-69. Disposition of moneys. Examination, before whom. 11 ses., 301. Two witnesses. One physician. Witnesses, dutv of. Physician, duty of. Certificate of physician. To be made on forms, etc. Commitment. Tit. V. ' INSANE ASYLUM. £§ 777-782 SheritY I etc. Money found on insane person to be delivered at asylum. Idiots, etc., not admitted. Fees of sheriff. JjL (i U1 11 Fee of physi- cian. Insane person able to pay. Guardian. Bond of. iiis mind as to endanger health, person, or property, must make an order that he be confined in the Insane Asylum. Sec. 777. The insane person, together with the order of the Judge and certificate of the physician, must be delivered to the Sheriff of the county, and by him must be delivered to the officer in charge of the Insane Asylum. Sec. 778. Any moneys found on the person of an insane person at the time of arrest must be certified to by the Judge and sent with such person to the Asylum, there to be delivered to the Medical Superintendent, who must deliver the same to the Territorial Treasurer. If the sum exceed ( >ne hundred dollars, the excess must be applied to the pay- ment of the expenses of such person while in the Asylum; if the sum is one hundred dollars or less, it must be kept and delivered to the person when discharged, or applied to the payment of funeral expenses if the person dies at the Asy- lum. Sec. 779. No case of idiocy or imbecility, or simple feebleness of mind, must be maintained at nor must any case of delirium tremens be admitted into the asylum. Sec. 780. The person delivering insane persons to the Asylum is allowed therefor forty cents per mile, one way only, for the legal distance from the county seat of the coun- ty where such insane person was committed to the Asylum; and for every additional patient taken at the same time, twenty cents per mile. He must also receive the necessary expense of an assistant, when more than one person is re- quired to convey such insane persons; payment thereof to be made by the County Treasurer of the county where the ex- amination was had, on the order of the Board of Commis- sioners. Sec. 781. The physician attending each examination of an insane person is allowed five dollars, to be paid by the County Treasurer of the county where the examination was had, on the order of the Board of County Commissioners. Sec. 782. The Judge must inquire into the ability of in- sane persons committed by him to the Asylum to pay for his transportation to the Asylum, and the expense of the exam- ination, and bear the actual charges and expenses for the time that such person may remain in the Asylum. In case an insane person committed to the Asylum under the pro- visions of this chapter, is possessed of real or personal prop- erty sufficient to pay such charges and expenses, the Judge must appoint a guardian for such person, who is subject to all the provisions of the general laws of this Territory in relation to guardians, as far as the same are applicable; and when there is not sufficient money in the hands of the guar- ' dian, the Judge may order a sale of property of such insane person, or as much thereof as may be necessary, and from the proceeds of such sale the guardian must pay said ex- penses and the Board of Directors the sum fixed upon by them, each month, quarterly in advance, for the mainte- nance of such ward; and also out of the proceeds of such sale, or such other funds as he may have belonging to his ward, pay for such clothing as the Medical Superintendent may from time to time furnish to such insane person; and he must give a bond with good and sufficient sureties, pay- able to the Board of Directors and approved by the Judge, 146 §§ 800-807 TERRITORIAL LAW LIBRARY. Tit. V. Ch. 1L for the faithful performance of the duties required of him by this section as long as the property of his insane ward is sufficient for the purpose. CHAPTER II. Territorial Law Library. Section 800. Location of Library. Secretary to be Librarian. 801 . Duties of the Librarian . 802. Who may take books from Library. 803. Same. 804. When books to be returned. 805 . Same. Section 800. Liability for loss or injury. 807. Library Fund. 808. How expended. 809. Duty of Clerks of Courts. 8 10. Library, time to be kept open. 811 . Bond of Librarian. 812. Expenditures, how audited and paid. Section 800. The Territorial Law Library is located in the Library Room of the Capitol Building and the Territo- rial Secretary is Librarian thereof. Sec. 801. It is the duty of the Librarian: 1. To make rules and regulations not inconsistent with law for the government of the Library; 2. To sell or exchange duplicate copies of books; o. To keep in order and repair the books and property in the Library; 4. To report to the Governor bi-ennially a statement of his transactions; 5. To number and stamp all books and maps belonging to the Library, and to keep a catalogue thereof; 6. To have bound all books that require rebinding and provide necessary shelves and furniture for the Library Room, at a cost not to exceed one hundred and fifty dollars per annum; 7. To keep a register of all books and property added to the Library and of the cost thereof; 8. To keep a register of all books taken from the Library. Sec. 802. Books may be taken from the Library by the Justices of the Supreme Court. At the request of a coun- selor of the Court, the bailiff must take from the Library to the Court room books for use in the argument of any cause. Sec. 803. Books may be taken from the Library by the members of the Legislature during the session thereof, and by other Territorial officers at any time. Sec. 804. Books taken by members of the Legislature must be returned at the close of the session ; and before the Secretary pays any member of the Legislature for his last weeks salary, he must be satisfied that such member has returned all books taken by him and paid for any injuries thereto. Sec. 805. The Controller, if notified by the Librarian that any officer has failed to return books taken by him within the time prescribed by the rules, and after demand made, must not draw his warrant for the salary of such offi- cer until the return is made, or three times the value of the books or of any injuries thereto, has been paid to the Li- brarian. Sec. 806. Every person who injures or fails to return any book taken is liable to the Librarian in three times the value thereof. Sec. 807. The Territorial Library Fund consists of all moneys paid to the Territorial Treasurer for the use of said 147 Location of library, who librarian. Duties of librarian. Who may take books. Same. Books taken by members of Legislature. Books taken by officers must be returned. Liability for injury to books. liibrary fund. Coiup. laws, Tit V. Ch. II. ti:i;i;itouial law library §§ 808-812 How expended. Comp. laws, fund by attorneys at Law upon their admission to the prac- tice as required by the Code of Civil Procedure; and any other moneys and fees required by law to be paid into said fund and the annual sum of one hundred and fifty dollars, which is hereby appropriated annually out of the Territori- al Treasury to said Fund. Sec. 808. The Library fund must be expended by the Librarian, under the direction of the Justices of the Su- preme Court for the purchase of law reports, digests, and text-books. The Controller must draw his warrant upon said fund in such sums as may be specified in the order of the Justices, or any one of them, not exceeding- the amount in said fund, to defray the cost of such purchases. Sec. 809. The Clerk of the Supreme Court and the sev- eral clerks of the District Courts must annually report to the Territorial Treasurer the names of all attorneys admit- ted or licensed to practice in the courts of which they are Clerk respectively. Sec. 810. The Librarian must keep the Library open every day except non- judicial days, from nine o'clock, a.m. during the sessions of the Legislature or the Supreme Court, until nine o'clock p. m. , and at other times until five o'clock p. m. : Provided, That the expense to the Territory must not Duties of clerks of courts. Comp. laws, 788. Library, time to be kept open. Comp. laws, 789. Bond of libra- rian. Expenditures, audited and paid how. exceed the sum of three hundred dollars per annum; to be paid monthly. Sec. 811. The Librarian must execute an official bond in the sum of one thousand dollars. Sec. 812. The Territorial Controller is1 authorized to audit all expenditures under this chapter, and if authorized, to allow the same and draw his warrant on the Treasurer for the amount which the Treasurer must pay out of any moneys in the treasury applicable thereto, provided that no warrant must be drawn upon the library fund in excess of the amount then in that fund. 148 5§ 830-835 FLOATING TIMBER. Tit. VI. Ch. I. TITLE VT. PUBLIC WAYS CHAPTER I. Floatinci Timber. Section 834. Subsequent disposition of proceeds. 835. Dam or boom, how constructed. 836. Boom or weir must have sluiceway or passage. Section 830. Definition of timber. 831. Owner may reclaim timber. 832. If not taken away to be turned over to Sheriff. 833. Application of proceeds when sold. Section 830. The word "timber" is used in this chapter to designate all logs, boards, planks, lumber, railroad ties, poles, rails, posts, cordwood or beams, and whether in rafts or otherwise, but does not include the sort of wood common- ly called driftwood. Sec. 831. Whenever any timber drifts upon any island in any of the waters of this Territory, or upon the bank of any such waters, the owners of the timber may remove it on payment or tendering to the owner or occupant of the land the amount of the damages which he has sustained by reason thereof, and which may accrue in its removal; and if the parties cannot agree as to the amount of such dam- ages, either party may have the same appraised by two dis- interested citizens of the county, who may hear proofs and determine the same at the expense of the owner of the tim- ber. Sec. 832. If the owner of such timber does not, within three months from the time it was so drifted, take the same away, the owner or occupant of the land must deliver a bill of his charges and appraisement of damages, together with the timber, to the Sheriff of the county, and thereafter the Sheriff must sell the same after three days' notice posted in three public places of the precinct. Sec. 833. When sold,the proceeds of the timber must be applied, first, to the payment of the charges of the sale, and in liquidation of the expenses and damages awarded to the person entitled thereto ; and the residue must be paid to the County Treasurer, to be by him paid over to the owner, or his representative or assigns, on the production of satisfac- tory proof of ownership to the Probate Judge, and on his order therefor made within one year after its receipt. Sec. 834. The rejection by the Probate Judge of any claimant's right to such proceeds is conclusive, unless with- in six months thereafter he commences action therefor. In case no claim is made or sustained to such proceeds the same must, by the County Treasurer, by placed in the com- mon school fund of the county. Sec. 835. No dam or boom must be hereafter construct- ed or permitted on any creek or river, unless said dam or boom has connected therewith a sluiceway, lock or fixture sufficient and so arranged as to permit timber to pass around, through or over said dam or boom without unreasonable delay or hindrance. 149 Definition of timber. 13 ses., 177. Owner may re- claim timber. 13 ses., 178. To be turned over to sheriff. Application of proceeds when sold . Subsequent disposition of proceeds. Dam or boom, how construct- 13 ses., 178. Tit. VI. Ch. IT. HIGHWAYS. §§ 83G-861 Boom or weir urn- pa6P" 13 ses., 178. Sec. 836. Any boom or weir in or over any creek or river so constructed as to prevent the passage of logs or lumber, is a public nuisance, which may be abated unless a suitable sluiceway, lock or passage, be made thereon, within thirty days after written notice given by any person inter- terested, and any person owning, holding or occupying such boom or weir, is liable to pay five dollars for every day the same remains in or over said creek or river, after thirty days' notice to remove the same, and be liable for any dam- ages sustained by individuals by reason of said boom or weir. CHAPTER II. Highways. < What are high- ways. 13 see., 162. Origin of high- 13 ses.. 161 ^X3sesT.162. Abandonment of highways. 13 ses., 172. Duties of clerks relative to road matters . N. S. The public easement. N. S. Adjoining owner may con- struct side- walks. N. S. ARTICLE I. Enumeration of Highways. i Section 853. Duties of clerk relative to road mat- I ters Section 850. What are highways. 851. Origin of highways. 852. Abandonment of highways . Section 850. Highways are roads, streets or alleys, and bridges, laid out or erected by the public, or if laid out or erected by others, dedicated or abandoned to the public. Sec. 851. Roads laid out and recorded as highways, by order of the Board of Commissioners, and all roads used as such for a period of five years, are highways. Whenever any corporation owning a toll bridge or a turnpike, plank or common wagon road is dissolved, or discontinues the road or bridge, or has expired by limitation, the bridge or road becomes a highway. Sec. 852. A road not worked or used for the period of five years ceases to be a highway for any purpose whatever. Sec. 853. The Clerk of the Board of Commissioners must keep a book in which must be recorded separately all proceedings of the Board relative to each road district, in- cluding orders laying out, altering, and opening roads; and in a separate book a description of each road district, its overseers, its roads, highways, contracts, and all other mat- ters pertaining thereto. article II. Bales (mil Restrictions respecting the Use of Highways. Section s(>:}. Gas, water, and railroad corpora- tions may lay down conductors and track. Section 860. The public easement. 8(31. Adjoining owner may construct sidewalk. 8(>2. May plant trees. | Section 860. By taking or accepting land for a high- way, the public acquire only the right of way and the inci- dents necessary to enjoying and maintaining it. All trees within the higliAvay, except only such as are requisite to make or repair the road or bridges on the same land, are for the use of the owner or occupant of the land. Sec. 861. Any owner or occupant of land may con- struct a sidewalk on the highway along the line of his land, subject, however, to the authority conferred by law on the Board of Commissioners and the Overseers of Highways; 150 §§ 862-870 HIGHWAYS. Tit. VI. Ch. II. and any person using such sidewalk with horse or team without permission of the owner, is liable to such owner or occupant in the sum of five dollars for each trespass, and for all damages suffered thereby. Sec. 862. Any owner or occupant of land adjoining a May plant trees, highway not less than three rods wide, may plant trees on the side" contiguous to his land. They must be set in regular rows, at a distance of at least six feet from each other and not more than six feet from the boundary of the highway. If the highway is more than six rods wide the row must not be less than six nor more than twelve feet from the boundary of the highway. Whoever injures any of them is liable to the owner or to the occupant for the damage which is thereby sustained. Sec. 863. Every gas, water, or railroad corporation has Gas, water and power to lay conductors and tracks through the public ways rTtion^ma^iay and squares in any city, village, or town when it is estab- ' 1a £► 7 ber of road districts and appoint therefor annually, or iXl£Ztr/7/<^/ whenever vacancies occur, Overseers, with power to remove them at pleasure ; 2. Cause to be surveyed, viewed, laid out, recorded, opened, and worked, such highways as are necessary for public convenience, as in this chapter provided; 3. Cause to be recorded as highways such roads as have become such by usage or abandonment to the public; 4. Abolish or abandon such as are unnecessary; 5. Contract, agree for, purchase or otherwise acquire the right of way over private property for the use of public high- ways; and for that purpose institute, or require the District Attorney to institute proceedings under the Code of Civil Procedure, and to pay therefor from the District Road Fund of the particular district; 6. Let out by contract the improvement of highways: and the construction and repair of bridges or other adjuncts to highways, when the amount of work to be done by contract exceeds one hundred dollars; 7. Levy a property road tax; 8. Order and direct Overseers specially in regard to work to be done on particular roads in their districts; 9. Cause to be erected and maintained on the highways they may designate, guide posts, properly inscribed; 10. Cause the road tax collected each year to be apportioi i - 151 L. IT HIGHWAYS. sTl-874 Road district, how defined and described. 13 ses., !(!<;. Overseers, bond, oath, etc. 13 ses., 1(>0. over- ses., 168. General road fund. N. S. ed to the road districts entitled thereto, and kept by the Treas- urer in separate funds; 1 1. Audit and draw warrants on the funds of the respec- tive road districts when required to pay for right of way or improvements thereon. Sec. 871. The road districts must be carefully and dis- tinctly defined and described; until such division is made the road districts of the various counties must continue as they are at present defined. Road districts may be altered, changed, created or modified by the Board of Commission- ers, as occasion requires. Sec. 872. Overseers of road districts receive notice of their appointment from the Clerk of the Board of Commis- sioners, and within -ten days thereafter must give the official bond required by the Board in the order of the appointment or confirmation, and take the usual oath of office. The no- tice and certificate that the bond has been filed, and the oath taken and indorsed thereon, or a certified copy thereof, con- stitutes a commission, and authorizes the person named in and holding the same to discharge the duties of Overseer until superceded. Sec. 873. Road Overseers under the direction and super- vision and pursuant to orders of the Board of Commissioners appointing them must : 1. Take charge of the public highways within their re- spective districts; t 2. Keep them clear from obstructions and in good re- pairs; 3. Cause banks to be graded, bridges and causeways to be made where necessary, keep the same in good repair, and renew them when destroyed; 4. Give two days notice to the inhabitants of his road dis- trict liable to do work on roads, when, where, with what im- plements, and under whose direction to work, and superin- tend the same; 5. Collect, from each inhabitant notified to work and who fails to work or prefers to pay it, the commutation fee; 6. Make semi-annual reports of all labor performed in his district, and how all road poll tax and commutation moneys were expended, to the Board of Commissioners un- der oath; 7. Receive and present petitions for new roads, recom- mend or disapprove the same, and assist in laying them out; 8. Collect all road poll taxes in the mode provided for the collection of other poll taxes, and faithfully account for and pay over the same; 9. Pay over to his successor, or into the Fund of his road district in the County Treasury, all road moneys in his hands and unexpended: 10. Receive for his services, from money coming into his hands belonging to his road district, the sum of three dol- lars for each day's service performed by him, to be audited and ordered paid by the Board of Commissioners. Sec. 874. From the road tax collected from all sources the Board of Commissioners may annually set apart a sum not exceeding twenty-five per cent, of the aggregate for general county road purposes, from which they may direct such amounts to be paid as may be found necessary for such 152 §§ 880-885 HIGHWAYS. Tit. VI. Ch. II. general road purposes in which the inhabitants of all the districts are more or less interested. The object of the ap- propriation must be specified in each order made therefor. ARTICLE IV. Highway Taxes. Section 380. B81. 882. 883. Section 884. Who owe a road poll tax . Overseers to make a list of inhabi- tants. 885. Levy of road and poll tax, wnen and how made. Road poll tax receipts. 886. 887. Tax list made out, tax collected and applied. Overseers to add omitted and new inhabitants. Annual property i*oad tax, how lev- ied, collected, etc Cities to constitute Road Districts. Sectiox 880. Every male inhabitant of a road district over twenty-one and under fifty years of age must perform two days' labor annually to be known as the road poll tax, upon the roads and highways of the district, under the de- mand and direction of the Road Overseer thereof, or pay to such Overseer a commutation fee of four dollars, or such smaller amount as may be fixed as the commutation fee by the Board of Commissioners. Sec. 881. Each Road Overseer must, within twenty days after being notified of his appointment and qualifica- tion, deliver to the Clerk of the Board of Commissioners, a list of the inhabitants of his district liable for the road poll tax therein. This list must be laid before the Board of Com- missioners at their first meeting held thereafter. Sec. 882. The Board of Commissioners must each year, at the meeting at which they are required to levy the prop- erty tax for county purposes, estimate the probable amount of property tax for highway purposes which may be neces- sary for the ensuing year over and above the road poll tax, and must regulate and fix the amount of property highway tax. and levy the same thereby; and at the same time, the Board of Commissioners must fix the commutation fee for the road poll tax at an amount not exceeding four dollars. Sec. 883. At the time of fixing the commutation fee the Board of Commissioners must provide proper blank road poll tax receipts, to be signed by the Clerk of the Board, and must deliver to each Road Overseer a number to each, equal to the number of inhabitants of their respective district liable for road poll tax, take receipt therefor, and charge the Road Officer receiving the same therewith; but credit must be given to each Road Overseer for all unsold blank road poll tax receipts returned to the Clerk of the Board of Com- missioners. Sec. 884. The Road Overseers must make out lists of the inhabitants of the road districts liable for road poll tax, and require of each the performance of the labor or the pay- ment of the commutation fee fixed by the Board of Commis- si oners and apply such labor and commutation money in the opening, maintenance, and repair of the highways and ad- juncts in their respective road districts. Sec. 885. The Overseers must, from time to time, add to the lists the names of persons liable for road poll tax who were omitted or who have become inhabitants of his district since the original list was made, and enforce the road poll tax or collect the commutation fee therefor, and apply the same as hereinbefore provided. 153 Who owe a road poll tax. 13 ses., 1<)7. Overseers to make list of in- habitants. N. S. Levy of road poll tax, when and how made. 13 ses., 167. Road poll tax receipts 13 ses., 10/. Tax lint inn do out Tax col- lected and applied. K. S. Overseers to add omitted and n^ \\r inhabitants. N. S. 'nt. n ' v //. HIGHWAYS. §§ 88G-904 ; u* ifi& Cities to consti- tute road dis- tricts. 13 ses., I7:i. wSEStluhQ* ^EC- 886. The annual property tax for road purposes must levied, etc. be levied by the Board of Commissioners at their session, INv 13 Be( i when thetax is by them levied for county purposes, and must not be less than ten nor exceed sixty cents on each1 one ( hundred dollars in value of taxable property. This property road tax. when levied, must be annually assessed and col- lected by the same officers and in the same manner as other Territorial and county taxes are levied, assessed and collect- ed, and turned over to the County Treasurer for the use of the road districts from which it is respectively collected. Sec. 887. Each incorporated city in this Territory con- stitutes a separate road district under this Title, and the City Council of each city, as far as relates to their city, has the powers conferred, and must perform the duties imposed up- on the Board of County Commissioners of their respective counties by this chapter. Each City Council must appoint a Road Overseer, who must, within such city, have the powers conferred, and perform the duties imposed by this chapter upon Road Overseers; and the City Council may remove the Overseer or may require a bond or settlement from him at any time, and must fill any vacancy in such office; and may regulate the length, grade and size of bridges, cause- ways and culverts; may provide for the construction and maintenance of sewers, sidewalks, and street crossings, and the grade and construction and maintenance of streets and alleys, and has all the powers as to streets and alleys, con- ferred by their respective charters or acts of incorporation, and by this chapter. article v. Performance of Highway Labor and Com mutation. Work out of district. N. S. Employer* re- sponsible for highway labor assessed to em- ployes. N. 8. Penalty for idle- ness, substi- tutes. 13 ses . , 108. Penulty for neglect 13 bob., 1 87. Excuse for neglect uo ex- emption K S. Section 900. Persons must not work out of dis- trict. 901. Employers responsible for highway labor assessed to employes. 902. Penalty for loss of time or idleness ; substitutes. 903. Penalty for neglect. Section 904. Excuse for neglect no exemption. 905. Overseers, to whom and what to re- port. 906. Reports, by whom and what. 907. Report of unexpended moneys. 908. Penalty for failure to report or pay over. Section 900. Road Overseers must not require an indi- vidual to work out of the district in which he resides. Sec. 90 1 . Corporations or other employers of residents in any highway district, are responsible for the road poll tax assessed against their employes, and a notice to the em- ployer or managing agent requiring the payment of the road poll tax of the employe, charges such employer or corpora- tion with such road poll tax. Sec. 902. Each person appearing must actually work eight hours each day, to be credited to him by the Overseer, for every hour unnecessarily lost or idled away he must be charged two hours, to be worked out on some other day un- der notice from the Overseer. Any person may work by an able^substitute. Sec. 903. Every person receiving due notice, who does not appear and labor or commute, is delinquent. Sec. 904. The Overseer's acceptance of an excuse for a neglect in no case exempts the person excused from perform- ing or commuting for the whole number of days work for which he was assessed. 151 905-922 HIGHWAYS. Tif.Vf. Ch.IL Sec. 905. Every Overseer must make to the Commis- sioners, semi-annually, a written account, under oath, con- taining*: 1. The names of all persons assessed to work in his dis- trict; •J. The names of all who have actually worked, and the number of days; 3. The names of all who have commuted; and the amount received from them; 4. The names of all delinquents, and the amount collected from them; 5. A full return by items of the amount of labor and money expended at each separate point, and the manner in which, and the time when the same was done; 6. The number of road poll tax receipts sold, and those returned unsold ; 7. An accurate account of every day he himself was em- ployed, and the nature and items of the service rendered. Sec. 906. The Commissioners may require special re- ports from Road Overseers when deemed proper. Sec. 907. The Road Overseers must accompany their re- ports with all unexpended moneys remaining in their hands Overseers, to whorn and what to report. C^^V/<3 Reports, by whom. N. Sy Unamended at the date of the report, and a statement of all moneys in jgj^^^r^ &U>^^^ report Penalty |or orarw /eoorfei the County Treasury to the credit of their road districts. Sec. 908. A failure to make a report as required, or to o^r^rrepw pay over, on the order of the Commissioners, any moneys in his hands, subjects the Overseer to a penalty of twenty-five dollars, to be recovered in an action on his bond, together with any balance due from him; suit therefor may be insti- tuted by the District Attorney, under order of the Board of Commissioners. /j ARTICLE Vl.$heucL$e^ Laying Out, Altering, and Discontinuing Roaasr"? j i 2 tr< ^^JLf-/^3 // Section 920. Who may apply for change. 921. What the petition must show. 5>2J. Petitioners to give bonds for costs. U-'.\. Commissioners to appoint Viewers. 924. Viewers, their duties. !>'_T». Report of Viewers. :•'_'<.. Report not to be approved, when. !»27. Viewers and Surveyors, how paid, and on what certificate. 928. Proceedings of Board in hearing re- port. SECTION 929. Effect of, and proceedings on ap- proval of Viewers' report. 930. Proceedings to procure right of way. 931 . Awards, how and by whom paid. 932. Width of highways. 933. Private roads, how opened. 93 1. Conveyances or decrees of condemna- tion of lands to be recorded. 935. Roads crossing railroads, canals or ditches 936. Fences to be removed, how. 937. Changing direction of road . Section 920. Any ten inhabitants of a road district taxable therein for road purposes, may petition in writing" the Board of Commissioners to alter or discontinue anyroad or to lay out a new road therein. Sec. 921. The petition must set forth and describe par- ticularly the road to be abandoned, discontinued, altered, or constructed, and the general route thereof, over what lands, and who the owners thereof are, whether the owners con- sent thereto, and if not, the probable cost of the right of way, the necessity for and the advantages of the proposed change. Sec. 922. The petitioners must accompany the petition with a good and sufficient bond, to be approved by the Com- missioners, in double the amount of the probable cost of the viewing and laying out or altering of any road, conditioned that the bondsmen will pay all the costs of viewing and sur- 155 Who may apply for change. 13 ses., 162. What the peti- tion must show 13 ses., 162. Petitioners to give bonds for costs. 13 see., !<;.""). Tit. VI- ' U. II. HIUHWA1S. §§ 923-927 point vi»-\s ■ Viewers, their duti 13 sea., Itii. Keport of viewers . 13 ses., 10(>. 13 ses., 163. Keport not to be approved, when. N. S. Viewers and veying in case the prayer is not granted, and the road final- ly not opened. Sec. 923. Uponfiling such petition and bond, the Board of Commissioners must appoint three Viewers one of whom must be a surveyor, to view and survey any proposed alter- ation of an old or opening of a new road, to be made in ac- cordance with the description in the petition, and submit to the Board an estimate of the cost of the change, alteration, or opening, including the purchase of the right of way and their views of the necessity thereof. Sec. 924. The Road Viewers must be disinterested citi- zens of the county, but not petitioners; they must be sworn to discharge their duties faithfully; must view and lay out the proposed alteration or new road over the most practica- ble route; notify the owners of the land over which it passes of the proposed route; ascertain whether the owners con- sent thereto, and the amount, if any, they claim or demand for the right of way over the same; estimate the actual damage to any land over which it passes, and the cost of any bridges or grading necessary; the necessity for and pub- lic convenience to be subserved by the road, and whether the opening thereof or change therein proposed should be had. Sec. 925. When the view and survey of the proposed alteration or new road is completed, the Viewers must re- port to the Board of Commissioners: \ 1. The course, termini, length, and cost of construction of the proposed road; 2. The estimate of damage to the owner of any land over which it is proposed to run the road; 3. The names of land owners who consent to give the light of way and their written consent thereto; 4. The names of land owners who do not consent, and the amount of damage claimed by each ; 5. Such other facts bearing upon the subject, of importance to be known by the Board of Commissioners. Sec. 926. No report of Viewers must by the Board of Commissioners be approved, which, without the consent of the owner and occupant, runs the road: 1. Through an orchard of four years' growth: 2. Through a garden or yard four years cultivated; 'I. Through buildings or fixtures, or erections for the pur- poses of residence, trade, or manufacture; 4. Through inclosures necessary for the use or enjoyment of buildings, fixtures or erections; unless the Board of Com- missioners are satisfied, from personal examination and ob- servation, or from the sworn statement of at least twelve respectable residents of the road district, that the opening of such road throng]) such premises is an absolute necessity, a great public benefit, or a great convenience to a moiety of the inhabitants of the district. Sec. 927. The Viewers must be paid three dollars each per day for their services out of the Road Fund of the dis- trict through which the road passes, and the Surveyor for services in running out and mapping the road and making the plat and field notes, which must be filed when required before he receives his compensation, five dollars per day. 156 \% 928-934 HIGHWAYS. Tit. VI. Ch. II. Sec. 928. The Board of Commissioners on the coming in of the report, must fix a day for hearing the same, must notify the owners of land not consenting to give the right of way of the hearing, by having written notice served on them personally, or on the occupant, or agent of the owner, or if neither, by posting notice at the most conspicuous place on the land, or left at the owner's, agent's, or occupant's residence ten days prior to the day fixed for the hearing; and must, on the day fixed, or to which it may be postponed or adjourned, hear evidence and proof from all parties in- terested for and against the proposed alteration or new road, ascertain, and by order declare, the amount of damage awarded to each non-consenting land owner, and declare the report of the Viewers to be approved or rejected. If the report is rejected the road must not be altered or opened. Sec. 929. If the Board approve the report, and there are no non-consenting land owners, the road must, by order, be declared a public highway, and the Road Overseer ordered to open the same to the public. If there are non-consenting land owners, the Board must appropriate from the Road1 Fund of the district, and cause the Road Overseer to tender to such non-consenting land owners the award for damages made b}r the Board. If the awards are all accepted the road must be declared a public highway and be opened as before provided. Sec. 930. If any award of damages is rejected by the landowners, the Board must, by order, direct proceedings to procure the right of way to be instituted by the District At- torney of the county, under and as provided in the Code of Civil Procedure, against all non-accepting land owners, and when thereunder the right of way is procured the road must be declared a public highway and opened as hereinbefore provided. Sec. 931. All awards by agreement, ascertainment by the Board, or by the proper Court, must be paid out of the Road Fund of the district on the order of the Board of Com- missioners. If the road lies in more than one district, the Commissioners must proportionately divide the awards and other costs between them. Sec. 932. All highways, except alleys and bridges, must be at least fifty feet wide except those now existing of a less width. Sec. 933. Private or by-roads may be opened for the convenience of one or more residents of any road district in the same manner as public roads are opened, whenever the Board of Commissioners may for like cause order the same to be viewed and opened, the person for whose benefit the same is required paying the damages awarded to land own- ers, and keeping the same in repair. Sec. 934. In all cases where consent to use the right of way for a highway is voluntarily given, purchased, or con- demned and paid tor, either an instrument in writing con- veying the right of way and incidents thereto, signed and acknowledged by the party making it, or a certified copy of the decree of the Court condemning the same, must be made and filed and recorded in the office of the Recorder of the 157 Proceedings ol board 8 in hear- ing report. • 13aes., 163-64. Effect of, and proceedings on approval of viewers' report. 3fses., 164. / .; Proceedings to procure right of way. 13 ses., 164. Width of highways. 13 ses., 165 Private roads, how opened. 13 ses., 165-66. Conveyances or decrees of con- demnation of lands to be recorded . N. S. VI. Ch.IL HIGHWAYS. §§ 035-945 i canals or ditches. Fence to be removed, how. N S. Changing the direction of roads . 13 ses., 1(55. count} in which the land so conveyed or condemned must be particularly described. Sec. 935. Whenever highways are laid out to cross rail- roads, canals or ditches on public lands, the owners or cor- porations using the same must, at their own expense, so pre- pare their roads, canals or ditches, that the public highway may cross the same without danger or delay; and when the right of way for a public highway is obtained through the judgment of any Court over any railroad, canal, or ditch, no damages must be awarded for the simple right to cross the same. Sec. 936. When the alternation of an old or the opening of a new road makes it necessary to remove fences on land given, purchased, or condemned by order of a Court for road or highway purposes, notice to remove the fences must be given by the Road Overseer to the owner, his occupant, or agent, or by posting the same on the fence, and if the same is not 'done within ten days thereafter, or commenced and prosecuted as speedily as possible, the Road Overseer may cause it to be carefully removed at the expense of the owner, and recover of him the cost of such removal, and the fence material may be sold to satisfy the judgment. Sec. 937. If any person through whose lands any public highway is established, is desirous of turning such road through any other part of his lands, such person may, by petition, apply to the County Commissioners, to permit him to turn such road through another part of hi^ land, without materially increasing the distance to the injury of the pub- lic; and on receipt of such petition, accompanied by a suffi- cient bond to pay the costs and expense to be incurred there- by, the Commissioners may appoint three disinterested view- ers and surveyor, if they deem it necessary, who must view the ground over which the road is proposed to be turned, and ascertain the distance such road will be increased by the pro- posed alteration, and a report in writing, stating the several distances so found, together with their opinion as to the utility of making such alterations; and if the viewers report to the Commissioners that the prayer of the petition is reason- able, the Commissioners, upon receiving satisfactory evi- dence that the proposed new road has been opened a legal width, and in all respects made equal to the old road for the convenience of travelers, may declare such new road a pub- lic highway, and make record thereof, and at the same time vacate so much of the old road as is embraced in the new; and the person petitioning for the alteration must pay all the costs and expense of the view and survey, if ordered. ARTICLE VII. Erection and Maintenance of Bridges. Section 945. Bridges, how maintained, and by whom. 940. When aid may be given by county for bridges . 947. Construction and repair of bridges to be lot out by contract. 948. When one overseer fails to aid, who may repair bridge. Section 949. Overseers failing, how bridge re- paired. 950. Construction of bridge petitioned for and notice. 951. If found necessary, the bridge to be built. 952. Report of officers to embrace bridges. p-ridgos, ho^Vv/J Section 945. All public bridges not otherwise specially provided for are maintained by the road district in which l^i^ wbnuj o^a- 1<] ^ 158 940-950 HIGHWAYS. Tit. VI Ch. II they are situate, the districts which they unite, and the county at large, in the same manner as highways, and under the management and control of the Road Overseer and Board of Commissioners, the expense of constructing, maintaining, and repairing the same being primarily payable out of the Road Fund of the district in the hands of the Road Overseer or County Treasurer, and from road poll taxes. Sec. 946. Whenever it appears to the Board of Commis- J^hei^ibmay si oners that any road district is or would be unreasonably county? for burdened by the expense of constructing or maintenance and ^ id|e ; repair of any bridge, they may in their discretion cause a j^pict^c^^0 portion of the aggregate cost or expense to be paid out of the ^ ' £o~*r° General Road Fund of the county, or out of the Gen- ^ eral County Fund, or both; or they may levy a special / 'v« rseer of the district to build or repair the same at the • xpense of such person, and the cost thereof is a lien upon tin* land and premises of such ditch owner or owners, and may be sued for and collected, by and in the name of such Tseer in any Court of competent jurisdiction. Sec. 970. Whoever removes or injures any guide post, or any inscription on such, erected on any highway, is lia- ble to a penalty of ten dollars for every such offense, and punishable as provided in the Penal Code. S E< . 971. Any person may notify the occupant or owner of any land from which a tree or other obstruction has fallen upon any highway to remove such tree or obstruction forth- with. If it i> not so removed the owner or occupant is liable 11 161 No gate allowed except where. N. S. Penalty for leaving open gate, or riding off road. N. S. Penalty for ob- struction or injury. N. S. Running water across high- way. 13 ses., 172-73. Neglect of owner ; over- seer to build culvert. 13 ses., 173. Peualty for injury. Guide post. N. S. Removal of fallen trees. N. S. Tit. VI. Ch. If. HIGHWAYS. i^ 972-987 Felling of trees. ea., 1' Notice on bridges, penalty for disregarding . N. S. Destroying shade trees N. S. y*y Road laws now in force not affected by this code. N. S. to a penalty of one dollar for every day thereafter till it is removed, and the cost of removal. Sec. 972. Whoever cuts down a tree so that it falls into any highway, must forthwith remove the same, and is liable to a penalty of five dollars for every day the same remains in such highway. Sec. 973. The Road Overseers may put up on bridges under their charge notices that there is "Five dollars fine for riding or driving on this bridge faster than a walk." Whoever thereafter rides or drives faster than a walk on such bridge is liable to five dollars for each offense. Sec. 974. Whoever digs up, cuts down, or otherwise in- jures or destroys any shade or ornamental tree planted and standing on any highway, forfeits twenty-five dollars for each such tree. Sec. 975. All penalties or forfeitures given in this Chapter, and not otherwise provided for, must be recovered by the Road Overseers of the respective road districts, and be applied on the highways in which they are collected. Sec. 976. Nothing in this Chapter affects the provisions of any statute in relation to roads and highways now in force and made applicable to one or more counties by name; but whenever such statute is repealed, then the provisions of this chapter are applicable to the county named in the statute repealed. 3} 4 ^dc^-f ^*V WVt ARTICLE IX. Leasing Roads. Section Section 986. Lease of roads, length of lease. 994. County roads . 987. Order to lease. 995. Toll, who shall not pay. 988. Bids. Sureties. 996. Forfeiture of lease. 989. Contract for lease. Lessee. Sure- 997. Toll, charge of. ties. 998. Gates, number of. Construction. 990. Sureties in undertaking. Bids shall specify. 991. Roads leased, cleaned, bridged and 999. Bids, opening of. repaired. 1000. Conditions of lease. Width of road 992. Toll collected. Bridges. 993. Rate of toll. Avoid paying. 1001. Road labor. Lease of roads, length of lease. 12 ses.,50. 13 ses., 161. Order to lease . 12 ses., 51. Publication of notice. Section 986. Whenever a county road in any county in this Territory is so located that there is little or no local labor along the line or in the vicinity of said road, the Board of County Commissioners of the county where such road or any portion of the same is, or may hereafter be lo- cated, is authorized to lease such road, or any portion of the same, to any person or corporation to open, improve, and keep the same in repair for a period not exceeding five years, with the right in consideration thereof to collect and receive tolls for travel thereon in the manner provided in this ar- ticle. Sec. 987. Whenever it becomes expedient to lease a public road, or any specified section thereof, the County Commissioners must make an order to that effect, specifying therein the termini thereof, and directing the Clerk of the Board of County Commissioners to cause the same to be published in some newspaper published in the county if there be one, or if there be no newspaper published in the county, then in a newspaper of general circulation therein, for a period not less than four weeks, and in like manner to give notice therewith that sealed bids will be received at such Clerk's office until a particular hour of a certain dajr 162 §§ 988-995 HIGHWAYS. Tit. VI. Ch. II. thereafter, and not more than ten days after the expiration of the publication of such order and notice, for the leasing of such toad. Sec. 988. No bids must be considered unless accompan- ied by an undertaking, executed by two or more sureties in the sum of two thousand dollars, to be void upon the condi- tion that the bidder, if the lease is awarded to him, will, within ten days thereafter, enter into the contract for keep- ing the road, and give the undertaking to secure the per- formance thereof, as hereinafter provided. Sec. 989. The contract for the lease must be subscribed by the lessee and approved by the County Commissioners and filed with the Clerk of the Board, At the time of filing the contract, the lessee must give an undertaking to the county in a sum to be fixed by the County Commissioners, not less than two thousand and not more than ten thousand dollars, with two or more sufficient sureties, to be void upon the condition that the lessee will faithfully perform the contract in relation to such road, and comply with the provisions of this article. Sec. 990. The sureties, in the undertaking mentioned in the last section, must have the qualifications of bail upon arrest in civil actions, and must justify in like manner be- fore the County Commissioners or the Clerk thereof. Sec. 991. The road leased under this article must be cleared of standing timber, and have a track for traveling of the width, and be kept in the condition, and the streams or other waters on the line thereof, must be bridged, or fer- ries established thereon and must be made of such grade and of such materials as the contract shall specify. Sec. 992. No toll must be collected for travel on such roads except at a gate, nor unless a sign-board be posted at such gate in full view of the travel on the road, with the rates of toll plainly printed or painted thereon. The lease must specify the number of gates that may be placed on the road, and the location thereof, and thereafter the number of such gates must not be increased; but the County Com- missioners, upon the application of the lessee, may, at any time, for good reasons, authorize the lessee to change the location of such gates, or any of them. Sec. 993. The rates of toll that the lessee may collect and receive must be specified in the lease, and none other must be charged; and any person who passes through a gate on such road without paying the toll legally chargeable thereat, or when traveling on such road goes around such gat<\ with intent to avoid the payment of such toll, is liable to the lessee for three times the amount of such toll; and any lessee of such road, who, by himself, his agents or ser- vants, collects or receives of any persons illegal toll for traveling on such road, is liable to such person for three times the amount of such toll. Sec. 994. The road leased as provided in this article, is nevertheless to be deemed a county road, subjectto the pro- visions of the lease. Sec. 995. No footman can be required to pay toll for traveling on such road, nor any person while traveling from one portion of his or his employer's farm to another, with Bids, sureties. 12 S68., 51. Cou bract for lease. Lt'Shee. 12 ses.,51. Sureties. Sureties in undertaking. 12 ses., 51 . Roads leased must be cleared, bridged, etc. 12 ses., 51. Toll collected. 12 ses., 52. Rates of toll. Toll, avoid paying. 12 ses.. 52. County road. 12 ses., 52. Till, who shall not pay. 1 "_' ses., 52. 163 Tit. VZ Ch. II. HIGHWAYS. ;§ 996-1001 of loase. 12 ses., 52. Tolls charged on. 12 ses., 52. Number of gates. 12 ses., 53. Bid must specify. Opening of bids. 12 se8.,53. Conditions of lease. 12 868., 53. Width of road. Bridges . Road labor. 12 see., 53. or without any stock or vehicle, or in going to or returning from church, a funeral or an election. Sec. 996. The County Commissioners have authority, upon the application of the lessee, to cancel or modify the Uase upon such terms as may be equitable and just; and the proper District Attorney may maintain an action against the lessee in the name of the county to have such lease de- clared forfeited whenever the lessee fails or neglects to comply with the provisions thereof, and of this article. Sec. 997. Tolls are chargeable by the lessee upon the following items, or classes of persons, or property only: 1. Sheep and hogs; 2. Loose horses, mules, asses and cattle; 3. Man and riding animals and pack animals loaded; 4. Vehicles loaded or unloaded and drawn by one or more animals. Sec. 998. The order of the Commissioners must specify the number of gates to be placed on the road, the grade of. the road, the materials for the construction thereof, and the period for which the same is to be let. The bid must specify the rates of toll which the bidder is willing to accept for putting and maintaining the road in the condition accord- ing to the specifications in the order. Sec. 999. Upon opening the bids, the lease must be awarded to the lowest bidder; but the County Commissioners may, and it is their duty to reject, any or all bids when there appears sufficient cause therefor, and in such case they may subsequently re-advertise and let the same. Sec. 1000. The Commissioners must insert in every con- tract with a lessee of a road leased under this article that the same must be cleared of standing timber for thirty feet in width of said road, and have a track in the centre not less than sixteen feet wide, furnished and kept in good traveling condition, except where the cutting on said road is six feet or more deep on either side, where said track need not be more than ten feet wide, with turnouts of sixteen feet in width every quarter of a mile of such narrow track and of sufficient length to enable the teams traveling said road to pass each other conveniently, and that all streams and other waters on the line of such road be safely and securely bridged: they may also insert therein such condition for keep- ing the road open during the winter season, as they may deem reasonable or expedient. Sec. 1001. The granting of any lease or leases under this article must not release any person liable to road labor from the performance thereof on the county roads not leased, or otherwise discharging the same in money in lieu of such labor. 164 §§ 1020-1024 TOLL ROADS. Tit. VI. Ch.HL CHAPTER III. Toll Roads. article I. Construction of Toll Roads. Section 1032. One road corporation using the road- bed of another. 1 0:53. How to be constructed. 1 034. May relay with what. 1035. Guide posts. 1036. Inspection, certificate and comple- tion. 1037. Erection of gates, etc. 1038. Rates of toll fixed, how, by whom. 1039. Applicants to give bond. 1040. Abandonment of road, and what be- comes of it., 1041. County may purchase road, how. 1042. How the appraisement and award is made, and its effect. Section 1020. Notice of and application to con- struct the road. 1 02 1 . Hearing the application. l'»22. Action of Commissioners. 1023. Commissioners, how appointed for other counties and by corpcration. 1024. Laying out the road. 1025. Compensation of Commissioners, map and report. 1026. Branches and Extensions. 1027. Acquiring lauds by grant. 1028. Appropriation of damages for high- ways taken. 1029. Application, when unnecessary. 1 030. Orchards and gardens. 1031. Bridging streams. Section 1020. If all land necessary for the road-bed and other purposes are not otherwise acquired as hereinafter pro- vided, the company proposing- to construct a toll road through any part of a county must publish a notice in some newspa- per published therein, and if none, then in the newspaper nearest thereto, once in each week for six successive weeks, specifying the character of the road, the termini, and each town, city, or village through which it is proposed to con- struct it, and the time when the application hereinafter re- quired will be made. After such notice is complete, on the day specified therein, application must be made to the Board of Commissioners of the county for authority to take the necessary land and to construct the road described in the notice. Sec. 1021. On the hearing all residents of the county and others interested may appear and be heard. The Board may take testimony, or authorize it to be taken by any officer of the county, and adjourn the hearing from time to time. Sec. 1022. If it appears to the Board of Commissioners that the public interests will be promoted thereby, a majority of all the members thereof may grant the application, and by order authorize the company to take the real property neces- sary, and appoint two Road Commissioners to lay out the road, who are disinterested either in the company or in any land sought to be taken or adjoining thereto. A copy of this order must be recorded in the County Recorder's office be- fore action under it is bad. Sec. 1023. If the road extends into more than one coun- ty, the application must specify their names, and the Board of Commissioners of each of such counties must appoint Road Commissioners to aet in their respective counties with the ( 'ommissioner and Surveyor of the company. The com- pany must appoint one ( 'ommissioner of like qualification as those appointed by the Board of Commissioners, and furnish a Surv.-vor to accompany and act with them. Sec. 1024. The Road Commissioners must take the oath of office, and view and lay out the road as in their judgment will besl promote the public interest. They must bear all 165 Notice of and application to construct the road. Comp. laws, 867. Hearing the application. Actions of commissioners Comp. laws, 864. Commissioners, how appointed, etc. Laying out the road. Tit VI. Ch.lIL TOLL ROADS. §§1025-1033 persons interested, and may take testimony: they may deter- mine the breadth of the way, not exceeding one hundred feet, except where the company acquire a greater breadth by grant. They must make, sign, and certify an accurate survey and description of the route and of the land necesary for the road, buildings, and gates in each county, and record the same in the office of the County Recorder thereof. When the breadth of the road is not fixed by the Road Com- missioners, it may be fixed by the Board Commissioners of the county. ofTommfs^u- Sec. 1025. The company must pay to each Road Commis- ers.mapand sioner his expenses and four dollars a day for his services; report. cause their Surveyor to make the map of the proposed road, which, when approved and certified by the Road Commis- sioners, must be filed with the report in the office of the Clerk of the Board of County Commissioners and recorded. extenCrionB*nc Sec. 1026. The Directors of any such company may, with the written consent of the holders of two-thirds of the stock, proceed in the manner prescribed by the preceding six sections to construct branches to their road, or to extend it or alter any part of its route or branches. by grant.8 lands Sec. 1027. Lands necessary f or the purposes of the road or appurtenances may be acquired by purchase or condem- nation. Lands within any highway may be granted by the Board of Commissioners or city authorities on such terms and for such sums as may be agreed upon. diSSaSfefS!!1 °f Sec- 1028. When the road company desires the exclu- h ways, taken sive use of lands forming part of a highway, and such use iQll' is g,ran^e(i by the County Commissioners, the damages re- ceived therefor are to be paid to the Road Fund of the Road District in which the same is situated. wb?ncunnece8- Sec- 1029. When the Company has obtained all the sary. lands necessary in any county, by purchase or agreement, the road may be constructed without making the applica- tion to the Board of Commissioners hereinbefore provided for; but before proceeding to do so an accurate survey of such part of the road must be made by a practical surveyor, signed and sworn to by the President and Secretary, and recorded in the County Recorder's office; and if the road ex- tends into another county, authority to construct the road there must first be obtained. ^rd^ns18 and ^EC* 1030. No such road must be laid out through any orchard of four years' growth, to the injury of the fruit trees, or any garden of four years' cultivation, or any dwelling house or building connected with a dwelling house or any yard or inclosure necessary thereto, without the con- sent of the owner. 8tredam88 ^EC* 1031. The road company may bridge any stream or river on the route of their road, when not within the limits prescribed by law for the erection and maintenance of any other bridge and in bridging streams used fop rafting lumber, the bridge must be so constructed as not to prevent or endan- ger the passage of any raft forty feet in width. Son uS)0ia" Sec. 1032. No plank road company must construct its roadbed'of road on the road of another company, except in case of another. crossings, without consent of the latter. STnTtructed Sec. 1033. Every such road must be laid out at least fifty feet wide. The track of plank roads must be constructed 16G 8S 1034-1039 TOLL KOADS. Tit. VI. Ch. IIL eighteen feet wide, of timber, plank or other hard material. The track of turnpikes must be bedded with stone, grav- el, or such other hard material found on the line thereof, to the width of eighteen feet, and faced with broken stone or gravel. The common wagon road must be graded at least twelve feet in width, and so constructed with necessary turn- outs as to permit vehicles to pass each other conveniently. All the roads must be ditched on the sides when practica- ble, and have proper and necessary sewerage, and be so con- structed that vehicles may pass on and off the track at all in- tersections of roads. Sec. 1034. Every company that has once laid their road with plank may relay it or any part of it with broken stone, gravel, or other hard material whereby they keep a good, substantial road. Sec. 1035. A guide post must be erected at every place where the road is intersected by a public road, with an in- scription showing the name of the place to which such in- tersecting road leads, in the direction to which the name on the guide post points. Sec. 1036. When the road or three consecutive miles thereof, is completed, the Road Overseer or other person thereto specially appointed by the Board of Commissioners of the county, must inspect the road when requested, and if satisfied that the road conforms to the requirements of the law, must certify to the facts and file the certificate in the office of the County Recorder, for such service four dollars per day must be by the company paid to the Inspector or ( )verseer. When only three miles of any plank road are completed, if it is not the entire road, tolls must not be col- lected thereon for more than one year, unless the road or five consecutive miles are completed within the year. Sec. 1037. When the certificate of completion is filed, toll gates may be erected and tolls collected. No toll gate, toll house, or other building must be put up within ten rods of the front of any dwelling house, barn or outhouse, with- out written consent of the owner thereof. Sec. 1038. The Board of County Commissioners must fix and regulate the rates of toll for all franchises granted under the provisions of this chapter within the limits of their respective counties, having due regard to the cost of construction, magnitude of structure and expenses incident thereto, and in keeping the same in good repair. The Board of Commissioners must also tax such sum as may appear reasonable, not less than twenty -five dollars nor more than two hundred dollars per annum, for each license granted; and the person or parties to whom such license is granted, must pay to the County Treasurer the tax for one year in advance, taking his receipt therefor, and upon the produc- tion of such receipt the Clerk of the Board of Commissioners must issue such license, with a statement of the rates of toll 1 f Commissioners. Sec. 1078. The license tax of a ferry or bridge connect- ing two counties must be paid to the Treasurer of the coun- ty granting it, and the license issued by the Auditor thereof; but the Treasurer of such county must pay to the treasury of the county in which the other end or landing of the bridge or ferry is located, one-half the sum so received an- nually, or the Auditor may issue the license on filing with him receipts for their respective halves of the tax taken from the Treasurer of each of the two counties. Sec. 1079. When a Commissioner is interested in an application to erect, construct, or take tolls, or alter tolls on 171 lieport of bridge, ferry owner keeper. Inquiry of the board of com- missioners fixing tolls. When to direct license to issue. Bond, conditions and execution . cr CD O- CD Ct> CO When bridge unites tw< » counties. Cornp. law$, 863-870. en C o t-h CO en to — » =3 c o V CD 0 CD Board divided, probate judge to act. Tit. VI. Ch. n PUBLIC FERRIES ANM) TOLL BRIDGES. 8S 1080-1091 Toll bridges or forrv within one mile of another, when. How lauds are acquired for use of bridge or ferrv. Must post rates of toll. Revenue derived from license, disposal of. Banks to be kept in repair a bridge or ferry, the Probate Judge of the county must act in his stead. Sec. 1080. No toll bridge or ferry must be established within one mile immediately above or below a regularly es- tablished ferry or toll bridge, unless the situation of a town or village, the crossing of a public highway, or the intersec- tion of some creek or ravine renders it necessary for public convenience. In addition to the public notice hereinafter required, notice of intention to apply for authority to erect a toll bridge or ferry, as in this section provided, must be served upon the proprietor of the ferry or toll bridge already established at least ten days prior thereto, giving the time and place and grounds of such application. Sec. 1081. When there are lands necessary for the construction, erection or use of such bridge or ferry which cannot be procured by agreement between the owner or cor- poration and the land owner, the right of way and all other lands necessary for the use and construction or erection thereof may be acquired by condemnation. Sec. 1 082. Every licensed toll bridge or ferry must have the rates of toll as fixed by the Board of Commissioners, printed or written, posted up in some conspicuous place on or near the bridge or ferry. Sec. 1083. The proceeds of the license tax on ferries and toll bridges must be paid into the County Treasury for the the use of roads and highways, or may be used by the Board of Commissioners at any time in the purchase of toll roads and toll bridges. Sec. 1084. All ferry and toll bridge keepers must keep the banks of the streams or waters at the landings of their ferries and bridges graded and in good order for the passage of vehicles. For every day compliance herewith is neglected twenty -five dollars is forfeited, to be collected for the use of the Road Fund of the count v. Application for leave to construct. Comp. laws, H(J7. Hearing appli- cation. ARTICLE II. Toll Bridges. Section 1090. Application for leave to construct. 1091. Hearing application. 1092. Action of the Board of Commission- ers. 1093. What the Board of Commissioners may require. Section 1094. Use of highways. 1095. Completion of bridge, rate of toll, and license tax. 1096. Persons exempt. 1097. Penalty for avoiding tolls. 1098. County may purchase toll bridge. Section 1090. Every applicant for authority to con- struct a toll bridge must publish a notice in at least one news- paper in each county in which the bridge or any part of it is to be. or if no paper is published therin, in an adjoining county once in each week for six successive weeks, specify- ing the location, the length and breadth of the bridge, and the time at which the application hereinafter required will be made. After notice is given, application must be made to the Board of Commissioners of the proper county, at any meeting specified in the notice, for authority to con- struct it. Sec 1091. On the hearing, any personmay appear and be heard. The Board may take testimony or authorize it to be taken by any judicial officer of the county: and it may adjourn the hearing from time to time. A copy of the articles of incorporation, certified by the Secretary of the 172 §§ 1092-1105 PUBLIC FERRIES AND TOLL BRIDGES. Tit. VI. Ch. 17. Territory or by the Clerk where they are filed, must be attached to and filed with the application if made by a cor- poration. Sec. 1092. If the Board are of opinion that the public interests will be promoted thereby, it may, by the assent of a majority of all the members of the Board, grant the application by an order entered in its minutes, and particular- ly describing the bridge. The applicant must cause a certified copy of the order, with a copy of the application to be recorded in the office of the Recorder of the county before proceeding under it. Sec. 1093. The Board of Commissioners may, at the time of granting authority to construct a toll bridge, by order, require the bridge to be constructed within a certain time, to be of a certain width, character, or description and to be constructed of certain materials, which order must be com- plied with by the owner or corporation constructing the same before license to take tolls is issued. Sec. 1094. The corporation or bridge owner may use, in such manner as prescribed by the Board, so much of any pubic road on either side of the stream or waters as may be necessary for constructing and maintaining the bridge and toll houses. Sec. 1095. Every bridge erected under these provisions must have good and substantial railings or sidings, at least four and a half feet high. When a bridge is completed, and j i certificate that it is so, and is safe and convenient for the public use, is signed by the Chairman of the Board of Com- missioners, and filed in the County Recorder's office, in the county or counties in which it is located, the owner may erect a toll gate at such bridge and require such tolls as the Boards of Commissioners of the county or counties from time to time prescribe. A license therefor must be issued by the Auditor of the county on giving the necessary bond * i ii*l paying the license tax fixed therefor. Sec. 1096. Any person going to or from a funeral, school, performing highway labor, or Court, which by law he is required to attend as a witness in a criminal case, is exempt from the payment of tolls. Sec. 1097. Any person liable to pay toll, forcibly or fraudulently passing the gate of a toll bridge without pay- ing the toll is liable to a penalty of ten dollars in addition to the damages caused, to be recovered by the owner. Sec. 1098. Within the same time, in like manner, and to the same effect as toll roads are purchased under the provisions of the last chapter, the county or counties, joint- ly acting, in which the same is situated, may purchase a toll bridge constructed under the provisions of this chapter. Action of board of coni- niissionerB. What board of commissioners may require. Use of high- ways. Completion of bridge, rate of toll, and license tax. Persons exempt. Penalty lor avoiding tolls. County may purchase toll bridge. ARTICLE III. Toll Ferries. ION L105. Application for leave to erect, and notice. 1100. Duty of Board of Commissioners. Skction 1107. Powers of Board of Commission- ers. 1 !<>-:. Penalties, how disposed of. SECTION 1105. Every applicant for authority to erect Application and take tolls on IK)-. Proceeds unclaimed, where to go. 1163. Property upon which advances are made may be sold, when. SE< 1 ION 1160. Common carriers may retain good until charges are paid. L161. Property unclaimed within four months to be sold, how. • Section 1160. When any goods, merchandise or other property has heen received by any railroad or express com- pany, or other common carrier, commission merchant, inn- keepers or warehousemen for transportation or safe keep- ing, and are not delivered to the owner, consignee or other authorized person, the carrier, commission merchant, inn- keeper or warehouseman, may hold or store the same with some responsible person, until the freight and all just and reasonable charges are paid. Sec. 1161. If no person calls for the property within four months from the receipt thereof and pays freight and charges thereon, the carrier, commission merchant, inn- keeper or warehouseman may sell such property, or so much thereof, at auction to the highest bidder, as will pay freight and charges, first having given twenty days' notice of the time and place of sale to the owner, consignee, or consignor, when known, and by advertisement in a daily paper ten days, (or if in a weekly paper, four weeks), published where such sale is to take place; and if any surplus is left after paying freight, storage, cost of advertising and other rea- sonable charges, the same must be paid over to the owner of such property at any time thereafter, upon demand be- ing made therefor within sixty days after the sale. Sec. 1162. If the owner or his agent fails to demand such surplus within sixty days of the time of such sale, then it must be paid «eer into the County Treasury, subject to the order of the owner. Sec. 1163. When any commission merchant or ware- houseman receives on consignment produce, merchandise, or other property, and makes advances thereon for freight and charges, he may, if the same is not paid to him within four months from the date of such advances, cause the pro- duce, merchandise, or property on which the advances were made, to be advertised and sold as provided herein. Stock drovers. 1 1 8«;h , 295. CHAPTER III. Marks and Brands. Section 1170. Stock drovers . Stock growers. Brand for cattle. Brand for horses . Brand for sheep and hogs . Purchase of stock and brands. Live stock to be marked. Records of brands . Place of branding. » Earmarks. Same brand not to be recorded by more than one stock-grower. Partnership brands. Defacing or counterfeiting of brands. Brand to be prima facie evidence of ownership. Section 1170. Every person, whether owner or em- ployee, who drives or brings, or assists in driving or bring- 178 1171. 3 172. 1173. 1171. 117;"). 1 1 70. 1177. 1178. 1170. Section 1180. Road brands ; cattle not belonging to stock drover found in his herds. 1181. Driving cattle from range by person not owning the same. Penalty of ; evidence warranting conviction. 1182. Liability to civil action. Attach- ment of stock. 1183. Prevention of trespassing of cattle ; herding of cattle on improved land, penalty for. Stock inspectors ; duties and powers of ; compensation of. 1 1 85. Violation of provisions of this chap- ter ; penalty for. 118 S§ 1171-1175 MARKS AND BRANDS. Tit. Vlf. Ch.III. # ing any cattle, horses, mules, asses, sheep, or hogs, through " or into this Territory, is deemed a stock drover. Every per- son who owns any cattle, horses, mules, asses, sheep or hogs, in this Territory, and is engaged in the business of breeding, growing, or raising the same for profit, is deemed a stock- grower: and all cattle, horses, mules, asses, sheep, and hogs are deemed live stock. Sec. 1171. Every stock-grower in this Territory must use one, and only one brand and mark for cattle; Provided, That any stock-grower may use a smaller sized brand to brand his cattle on the horns, of the same kind as his flesh brand; one and only one brand or mark for horses, mules, and asses; one and only one brand or mark for sheep; and one and only one brand or mark for hogs : which brands and marks must be placed upon some conspicuous part of the an- imal branded or marked; Provided, That nothing in this chapter forbids the use of one brand or mark for all or sev- eral of the four classes of live stock hereinbefore enumerated in this section; but a stock-grower may, at his option, use a different brand and mark for each of the aforesaid four classes of live stock. Sec. 1172. In all cases of the purchase of an entire band of live stock by any resident stock-grower, together with the sole right to the brand of the party selling said live stock, it is lawful for the party purchasing such band and brand to have such purchased brand recorded in his own name, upon presentation to the County Recorder of the county where such brand is recorded of a duly authenticated bill of sale of such brand and band of live stock, but it is not lawful for any stock-grower to use more than one of these brands or marks, on the increase of his band of live stock. But the provisions of this section must not be so construed as to release any stock drover from the obligations to brand or mark all live- stock driven through any portion of this Territory, as here- inafter provided. Sec. 1 1 73. Every stock-grower must record, in the office of the County Recorder of his county, a full and correct des- cription of his brands and marks, describing particularly on what part of the animal to be marked or branded, the brand or mark is to be placed. He may also, at his discretion, re- cord the same in the office of the County Recorder of any other county or counties within the Territory. Sec. 1174. No stock-grower in this Territory must use any other brands or marks than the brands and marks re- corded, as provided for in section four of this chapter, which must in all cases be placed on the part of the animal de- signated in the description recorded. When there is already a brand on that particular place, then as near thereto as pos- sible; Provided, That stock kept for use need not be branded unless the owner or owners choose to brand them. Sec. 1175. Any stock-grower in this Territory may select an earmark, and after recording the same as herein- before provided, may use the same in marking his live stock. Such mark must be made by cutting or shaping the ear or ems of the animal so marked; but in no case must the person so marking the animal, cutoff more than one-third of the ear, or cut an ear on both sides to a point. 179 Stock growers. Live stock . Brands for cattle, horses, sheep and hogs. 11 ses., 295. Purchase of stunk and brands. 11 ses , 296. All live stock to be marked. Record of brands. 11 ses., 296. Place of brand- ing. 11 res, 296. Ear marks. 11 ses., 296. Tit. ML Ch. III. MARKS AND BRANDS. 117G-1181 Knuae brand not to be re- . .1 by more than one stock ? rower. 1 see., 297. Partnership brands. 11 see., 297. Defacing or counterfeiting of brands. 11 see., 297. Brands to be prima facie evidence of ownership. Uses., 297. Road brand. 11 see., 297. Cattle not belonging to stock drover not found in his herd. Driving cattle from range by person not owning the same. Penalty of. 11 868., 29*. Evidence war- ranting convic- tion. Sec. 1 176. No stock-grower must have recorded or use, and no County Recorder must record, any brand or mark which has been previously selected or recorded by any per- son or persons in his county, unless the same has been abandoned, and notice of the abandonment duly recorded by the County Recorder of his county, except as provided in section 1172 of this chapter. Sec. 1177. Partners in stock-growing may adopt and use partnership brands or marks, in which case they must select, record and use the same in the manner provided for the individual stock-growers, or they may adopt and use the individual brand or mark of any individual member of the partnership, duly selected and recorded as provided in this chapter. Sec. 1178. No stock-grower or other person in this Territory must change, conceal, deface, disfigure, or oblit- erate any brand or mark previously branded, impressed or marked on any head of live stock, or put his own, or any other brand upon or over any part of any brand previously branded upon any head of live stock, and no person must mark or use any counterfeit of any brand or mark provided for in this chapter. Sec. 1 179. In all civil suits, or in any criminal proceed- ing, where the title of any live stock is involved, the brand or mark on any such animal is prima facie evidence of the ownership of the person whose brand or mark it may be : Provided, That such brand has been duly recorded as re- quired by this chapter. Proof of the right of any person to use such brand or mark may be made by a copy of the record of the same, certified by the County Recorder of any county in which the same is recorded. • Sec. 1 180. It is the duty of every stock drover to select and use a road brand for all live stock driven or moved through or into this Territory by him or by his assistance or direction, which road brand must be plainly and distinct- ly branded on some conspicuous part of each animal; and it is the duty of every such stock drover or his assistants, each day to carefully search through and examine his herd or drove after driving or moving them over any portion of this Territory, and separate from and drive and keep away from his herd or drove all live stock not belonging thereto and not branded with his road brand; Provided, That any drover may drive the stock of other drovers with different brands; bub he must have written authority from the owner to drive said stock. Sec. 1181. Any person not being the owner or entitled to the possession of any head of live stock, who is found knowingly and willfully driving, riding or leading, or as- sisting to drive, ride or lead the same away from its usual range, unless he corrals the same at the first corral nearest to such range, is guilty of a misdemeanor. And proof that such person was found driving, riding or leading such live stock from its usual range, as aforesaid, is evidence suffi- cient to warrant a conviction, unless the evidence produced on the trial shows that the accused acted in good faith and with an innocent purpose; Prodded, That any stock-grower or his employees may drive any stock that he finds herding with any stock belonging to him or under his control on the 180 §§ 1182-1184 MARKS AND BRANDS. TIL VII. Ch.IIL range to the nearest suitable corral that can be obtained, and there separate it from the stock of said stock-grower, and such stock must be by him driven or caused to be driv- en back to or near the range from which such stock was driven. Sec. 1182. Any stock drover or other person engaged in driving or moving any herd or drove of live stock through this Territory, who, without the owner's consent, drives or moves, or assists in driving or moving, any herd of live stock, the property of another person, away from its usual or accustomed range in this Territory, is guilty of a misde- meanor; and is also liable for damages in a civil action in any court of competent jurisdiction in this Territory by the party injured, for double the value of each head of live stock so as aforesaid driven or moved away, together with costs of suit; and the party injured may at the commence- ment of such civil action, or during the pendency thereof, have such herd or drove of live stock or such number of live stock thereof as are sufficient, attached, seized, and held as security for all damages and costs that may be recovered in such action. Sec. 1 183. Any person owning or having charge of any herd or drove of live stock, who drives or moves the same into or through any county in this Territory, in which the owner thereof is not a resident or land owner, and where the land is owned or is occupied and improved, must prevent such herd or drove from mixing with the live stock belong- ing in said county and must also prevent such herd or drove from trespassing on land in the possession of any actual settler, and used by him for grazing purposes, or for the growing of grain, hay, or other crops, or injuring any ditches owned or used by such settler. If any owner or person in charge of any such herd or drove of live stock willfully or negligently injures any resident of this Territory by driving or moving such herd or drove of live stock from any public highway, and herding or grazing the same on land occupied and improved by any settler in possession of the same, he is guilty of a misdemeanor; and is also liable in a civil action to the party injured for the damages by him sus- tained. Sec. 1184. The County Commissioners of any county in this Territory must upon petition of five of the resident stock-owners of said county, appoint one or more inspectors; said inspectors must be experienced stock men, and duly Bworn to faithfully perform the duties and requirements of this chapter, whose duty it is to discover and detect any vio- lation of this chapter or of any law of this Territory relating to live stock. Said inspector or inspectors have full power t<» cut out and separate from any herd or drove of live stock, all range stock of every description not belonging to such herd or drove, and to detain the herd or drove nor that pur- pose, and have full power without a warrant, to arrest any person or persons violating any of the provisions of this chapter, and take them before any court having jurisdiction of the offense. They may receive such compensation for their services as are allowed by any Board of County Com- missioners of such county, to be paid out of the county treasury. Any Board of County Commissioners in this Ter- 181 Corral of cattle not owned by drover. Liability to civil action. 11 ses., 298. Attachment of stock. Prevention of trespassing of cattle. 11 868., 299. Herding of cattle on improved land. Stock in- spectors, duties and powers of ; compensation of. 11 sea., 299. Tit. VII. Ch.Il'-r. STOCK GROWERS.-DOGS KILLING SHEEP. §§1185-1205 ritory may offer and provide for the payment of suitable rewards for the detection of any violation of this chapter. violu\m')t°er ^Et ' H85. Any person violating any of the provisions 11 ses.^ooi of this chapter, is guilty of a misdemeanor. Person' slaughtering cattle to keep record . 9 ses., 3<>. Must preserve hide thirty days. 9 ses., 36. Penalty. 9 ses., 37. CHAPTER IV. Protection of Stock-Growers. Section 1195. Persons slaughtering cattle to keep record. Section 1196. Must preserve hide thirty days. 1197. Penalty. Section 1195. Any person engaged in the business of slaughtering cattle, must keep at their place of business a book in which they must enter daily the number and class of cattle slaughtered, the name of the person or persons from whom said cattle were purchased, and the marks and brands of such cattle. Said book must be kept ready at all times for the inspection of any person who may desire to examine the same. Sec. 1196. Any person not regularly engaged in the business of slaughtering cattle, who at any time slaughters any cattle, must retain in his possession the hide taken off said cattle with the ears attached thereto without any alter- ation of the marks on the same, or any disfiguration of the brand for the period of thirty days, and any owner of cattle may within the period of time herein mentioned demand an exhibition of the hide or hides of any cattle so killed or slaughtered by the person so killing the same, or by any other person for whose use and benefit such animal or ani- mals were killed, and upon such demand being made he must produce said hide or hides for inspection. Sec. 1197. Any person violating any of the provisions of this chapter, or who may destroy the hide of any cattle slaughtered, within thirty days from the slaughtering there- of, is guilty of a misdemeanor. Killing sheep by dogs . Sees., 84:J. CHAPTER V. Dogs Killing Sheep or Goats. Section 1205. Killiug sheep by dogs. Section 1205. The owner, possessor, orharborer of any dog or other animal that kills, worries, or wounds any sheep, angora or cashmere goats, is liable to the owner of the same for the damages and costs of suit, to be recovered be- fore any Court of competent jurisdiction: 1. In the prosecution of actions under the provisions of this Title it is not necessary for the plaintiff to show that the owner, possessor, or harborer of such dog or other animal had knowledge of the fact that such dog or other animal would kill or wound sheep or goats; 2. Any person, on finding any dog, not on the premises of its owner or possessor, worrying, wounding, or killing any sheep, angora or cashmere goats, may at the time of so find- ing said dog kill the same, and the owner thereof can sus- tain no action for damages against any person so killing such dog. 182 §§ 1210-1217 SHEEP, Tit. VII. Ch. VI. CHAPTER VI. Sheep. Section 1217. Proceed to examine. 1218. Driving of sheep . 1219. Owners wishing to move sheep. 1220. Penalty. 1221. Infected sheep. 1222. Compensation of Commissioner Section 1210. Herding of sheep. 1211. Penalty. 1212. Same. 1213. Sheep Commissioner. 1214. Summon assistance. 1215. Certificate of Health. 1216. Duties of Sheep Commissioner. Section 1210. It is not lawful for any person owning or having charge of sheep to herd the same, or permit them to be herded on the land or possessory claims of other per- sons, or to herd the same or permit them to graze within two miles of the dwelling house of the owner or owners of such possessory claim. Sec. 1211. The owner or the agents of such owner of sheep violating the provisions of the last section, on com- plaint of the party or parties injured before any Justice of the Peace for the precinct where either of the interested par- ties may reside, is liable to the party injured for all dam- ages sustained; and if the trespass be repeated; is liable to the party injured for the second and every subsequent of- fense in double the amount of damages sustained. Sec. 1212. When the owner or the agent of such owner of sheep found trespassing upon the land or possessory claims of another, or within two miles of the dwelling house of the claimant or occupant of such possessory claim, is un- known to the party injured by such trespass, all sheep so trespassing may be treated as estrays. Sec. 1213. It is the duty of the Board of County Com- missioners of the several counties of this Territory, on the application of three property holders, to appoint a Sheep Commissioner who must subscribe an oath and enter into bonds to the county in any sum that the County Commission- ers may designate, for the faithful performance of the du- ties of his office. Sec. 1214. The Sheep Commissioner has the power, if deemed necessary, to summon to his assistance at any ex- amination, competent persons as experts to assist him. Sec. 1215. The Sheep Commissioner, if upon examina- tion of any flock of sheep finds them free from scab or other infectious diseases, must make and deliver to the owner or owners of said sheep a certificate in writing, stating that at the date of such certificate said sheep were in a healthy condition. Said certificate must be recorded in a book kept for that purprse, before it is delivered. Sec. 1216. It is the duty of the Sheep Commissioner to make within ten days after the examination, a statement in writing with his certificate attached thereto, which state- ment must set forth the condition of each and every band or flock of sheep in his county and record the same in a book provided for that purpose to be kept in the office of the County Auditor. Sec. 1217. The Sheep Commissioner must, at any time, upon complaint under oath being made to him, that any sheep within his county, are infected with scab or other in- 183 Herding of sheep. Act Jan'y 14, 1875. Penalty. Act Jan'y 14, 1875. Same. Act Jan'y 14, 1875. Sheep com- missioner. 12 ses., 58. Summon assistance. 12 ses., 59. Certificate of health. 12 sea., 59. Duties of commissioner 12 ses., 59. Proceed to examine. 12 ses., 59. Tit. III. Ch. VI. SHEEP. >? Driving of sheep. 12 868., 59. Owner wishing to move sheet). 12 ses. ,(!(). Penalty. 13 868., 179. Infected sheep. 12 ses., CO. Compensation of commig- Bloner. 13 ses., 170. factious disease, proceed at once to examine the sheep so complained of and if such sheep are found to be so infected, then the certificate of the soundness of such sheep which may have been issued, must be annulled, and he must enter on the margin of the record of such certificate the word "an- nulled," and the date thereof; but if the complaint is found to be frivolous or malicious, then the party making such complaint must pay all the costs of such examination. Sec. 1218. No sheep must be permitted to enter any county of the Territory, until the same have been examined by the Sheep Commissioner of the county, and a certificate of the healthfulness of such sheep is issued by the said Sheep Commissioner to the owner thereof; Pro vided. That where any person or persons may be driving their sheep with due dili- gence through the Territory, a certificate, as provided in this section, from the Commissioner of the county first en- tered will be sufficient for all counties through which they may pass. Sec. 1219. It is the duty of the Sheep Commissioner, when notified that the owner of any sheep wishes to move the same into his county, to proceed as soon as may be to examine said sheep, and, if found in a healthy condition, he must deliver to the owner thereof a certificate to that ef- fect, whereupon such sheep must be permitted to enter his county; no sheep must enter any of the counties of this Ter- ritory until such certificate has been obtained. Sec. 1220. If any person drives or causes to be driven any sheep into any counties of this Territory and fails for the space of ten days after such sheep are driven therein, to ob- tain a certificate of the healthfulness of such sheep, such per- son is deemed guilty of a misdemeanor, and must be fined in any sum not less than two hundred and fifty nor more than five thousand dollars, and in default of payment must be committed to the county jail at hard labor until such fine and costs are paid. Sec. 1221. Any person owning any sheep infected by scab or any other infectious disease, must keep the same se- cure from contact with other sheep, and must not move or drive the same upon any highway, by-way, or across any range where other sheep are liable to range or be driven; but the owner of such sheep so infected may move the same, by first obtaining a written permission of the Sheep Commis- sioner of the county wherein he wishes to move them, which permission must state the manner in which they are to be moved, and the place to which they are to be moved, and the route designated; but the Sheep Commissioner must not give permission to any person to move any sheep so infected across any range where healthy sheep are accustomed to range. Any person violating any of the provisions of this section is guilty of a misdemeanor, and must be fined in any sum not less than two hundred and fifty, nor more than two thousand dollars; and the Sheep Commissioner has the power to regulate the herding of sheep already within the limits of his county that are or may be infected with scab or other infectious disease. Sec. 1222. The services of the Sheep Commissioner so rendered by him, are a lien upon the sheep so examined by him, and if the owner of such sheep, or any agent of such 184 |§ 1230-1242 STOCK RANCHERS.-STALLIONS. Tit. VII Ch. VII-VI1I. owner thereof, or other person having the same in charge, refuses or fails for the space of ten days after the presenta- tion to him of the claim of said Commissioner for his said services to pay the same, the said Commissioner has the right to distrain and sell in manner now provided by law for the forced sale of personal property on execution, so many of such sheep as may be required to pay his said claim and all costs and expenses incurred in such distraining and sale. CHAPTER VII. Liabilities of Stock Ranchers. Section 3 232. Using horses, penalty for. Section 1230. Who deemed stock rancher. 1231. Duty of. Section 1230. Every person who, for a consideration, takes horses or other stock to keep and take care of by the day, week, month or year, is deemed a stock rancher. Sec. 1231. It is the duty of every stock rancher to use due diligence to' prevent the death or loss of, or injury to, any animal in his charge as such rancher; and in case of death, loss or injury to such animal while in possession of a stock rancher, the owner thereof may recover before any court of competent jurisdiction, the full amount of dam- ages sustained, if it appears that such loss, death or injury was in consequence of the failure of the stock rancher to use due and reasonable diligence. Sec. 1232. Any stock rancher using any animal placed in his charge, by riding or working the same in any man- ner whatever, unless there is an express contract between himself and the owner thereof allowing such animal to be used, forfeits all claims or demands for ranch fees on such animal; and he is liable for any damages or injury to such animal by reason of such use. CHAPTER VIII. Stallions Running at Large. Who deemed stock rancher. Comp. laws, 744. Duty of. Comp. laws, 744. Using horses, penalty for. Comp. laws, 744. 8ECTI0N 1240. What stallions may run at large 1241. What may not. Section 1242. May be castrated. . I 1213. When the owner is uukuown. / Section 1240. The owner of any stallion over the age i^ sliuons^ of eighteen months must not allow the same to run at large 1™Y nmat :PA . w unless it is of the cash value of one hundred and fifty dol- 7?^r tf JLs ¥f Mav be cas- trated. 13 ses., 4:5. Tit VII. Ch. IX X. WEIGHTS AND MEASURES.— MONEY. }§ 1243-1262 When owner is unknown. i:> ut's.. 13. fa^Y' ^ in his enclosures, and when so doing must give the owner thereof five days' notice that such an animal is in his pos- session; and if at the expiration of the aforesaid time the owner neglects to remove such animal and pay all reason- able costs for keeping the same, then the taker up may cause such animal to be castrated. Sec. 1243. Should the owner of such animal be un- known, then it is the duty of the person in whose possession the animal may be, to forthwith give ten days' notice with the description of the animal, its marks or brands, by posting up at least three written or printed notices in at least three conspicuous places in the county, calling upon the owner to claim the property; and if at the expiration of the ten days the owner neglects to remove such animal and pay all reasonable costs for keeping the same, the party taking up said animal may cause it to be castrated, such castration being performed in the usual manner, so that the life of the animal be endangered as little as possible. Weights of bushels of various pro- ducts. Act Jan'v 1 -J, 1883. Stone rua6on standard of Act Jan'y 21 1883. ry, >, CHAPTER IX. Weights and Measures. Section 1250. Weights of bushels of various pro- ducts. Section 1251. Stone masonry. Section 1250. Whenever wheat, rye, Indian corn, bar- ley, buckwheat, flaxseed, or oats are sold by the bushel, and no special agreement as the weight or measurement is made by the parties, the bushel consists of sixty pounds of wheat, of fifty-four pounds of rye, of fifty-two pounds of Indian corn, of fifty pounds of barley, of forty pounds of buckwheat, of fifty-six pounds of flaxseed, and of thirty-two pounds of oats. Sec. 1251. The perch is the standard of measurement of stone masonry, and contains sixteen and one-half solid feet. Dollar, cent and mill. Act Feb. 2 1 , 1879. Money of other denominations. Act Feb . 21, 1870. Judgments, how computed. Act Feb. 21. 1 879. CHAPTER X. Money of Account and Interest. Section 1264. Interest, contract rate 1265. Compound interest. 1266. Usury, penalty for. Section 1260. Dollar, cent and mill. 1261. Money of other denominations. 1262. Judgments, how computed. 1263. Interest, legal rate. Section 1 260. The money of account in this Territory is the dollar, cent, and mill, and all public accounts and the proceedings of all courts in relation to money must be kept and expressed in money of the above denominations. Sec. 1261. The above provisions do not in any manner affect any demand expressed in money of another denomi- nation, but such demand in any suit or proceeding affecting the same must be reduced to the above denominations. Sec. 1262. In all judgments rendered by any court for any debt, damages, or costs, and in all executions issued thereon, the amount must be computed, as near as may be, in dollars and cents, rejecting small fractions; and no judg- ment or other proceeding is erroneous for such omission. 186 §§ 1263-1206 MONEY OF ACCOUNT AND INTEREST. Tit. VII. Ch.X Sec. 1263. When there is no express contract in writing- fixing a different rate of interest, interest is allowed at the rate of ten cents on the hundred by the year, on : 1. Money due by express contract; 2. Money after the same becomes due ; 3. Money lent; 4-. Money due on the judgment of any competent court or tribunal; 5. Money received to the use of another, and retained be- yond a reasonable time without the owner's consent, express or implied; 6. Money due on the settlement of mutual accounts from the clay the balance is ascertained; 7. Money due upon open accounts after six months from the date of the last item. Sec. 1264. Parties may agree in writing for the pay- ment of any rate of interest on money due or to become due on any contract, not to exceed the sum of one and one-half per cent, per month ; any judgment rendered on such contract bears interest at the rate of ten per cent, per annum until satisfied. Sec. 1265. Compound interest is not allowed, but a debtor may agree in writing to pay interest upon interest over-due at the rate of such agreement. Sec. 1266. If it is ascertained in any suit brought on any contract, that a rate of interest has been contracted for greater than is authorized by this chapter, either directly or indirectly, in money or in property, such contract works a forfeiture of ten cents on the hundred by the year, and at that rate, upon the amount of such contract, to the School Fund of the county in which the suit is brought and the plaintiff must have judgment for the principal sum less all payments of principal or interest theretofore made and without interest or cost. The court must render judgment in said action for ten per cent per annum upon the entire principal of said contract, against the defendant in favor of the Territory for the use of the School Fund of the county, whether the unlawful interest is contested or not; and in no case where unlawful interest is contracted for, must the plaintiff have judgment for more than the principal sum less the payments already made, whether the unlawful interest be incorporated with the principal sum or not. But no indorsee in due course of negotiable paper, is affected by any usury exacted by any former holder of such paper unless he have actual notice of the usury previous to his purchase; but in no such ease the judgment above provided in favor of the School Fund must be entered against the drawer or maker, if a party to the action, and he may recover back the usury paid from the party who received the same. Interest, let-'ul rate. Act Feb. 21 , 1*79. Interest. Contract note. Act Feb. 21, 1*79. Compound interest. Act Feb. 21, 1879. Usury, penalty for. N. S. 187 Tit. VH. Ch. XI XII. AUCTIONEERS-PRACTICE OF PHARMACY, ^g 1275 1282 OHAPTEE XI. Auctioneers of Live Stock. Must keep a register. 13 sea., 32. Must enter description. 13 bes., 33. Register open to inspection. 13 ses., 33. Register de- posited with recorder. 13 ses., 33 Penalty. 12 sea., 33. Section 1278. Register deposited with Recorder. 1279. Penalty. Section 1275 . Must keep a register. 1276. Must enter description. 1277. Register open to inspection. Section 1275. Every person who is licensed, under the laws of this Territory, to sell live stock or other goods and wares, must keep in his office a book for the purpose of re- gistering a description of each animal that he may sell; to be called the Auctioneer's Register Book of stock sold. Sec. 1276. Every auctioneer before selling any animal, must take down in ink on the register book, provided for in the preceding section, a correct description of each animal he is about to sell, the color, age, mark and brand as near as practicable; also the date and name of. and residence of the owner of said animal, and, when sold, add to said description the name and residence of the purchaser. Sec. 1277. Every auctioneers register book of stock sales must, upon application by any county or territorial of- ficer, or any stock grower of the county, be open for his in- spection. Sec. 1278. Any auctioneer who discontinues the busi- ness of selling live stock or removes from the county, must deliver to the Recorder of said county, all of his register books of live stock sold. The recorder must keep said register in his office for the inspection of any citizen of the county or Territory. Sec 1279. Any auctioneer failing to comply with the provisions of this chapter is guilty of a misdemeanor. Sale of drugs and poison. CHAPTER XII. Practice of Pharmacy. Section 1282. Sale of drugs and poisons. Who may be registered as a Phar- macist. Graduates in pharmacy. Licentiates in pharmacy . Examin- ation. Certificates. Assistant pharmacist. Board of pharmacy. Organization and duties of Board. Prosecutions. Meetings. Regis- ter. Persons now engaged in the busi- ness. Clerk and assistants in pharmacy. Renewal of certificates. Fees . Fees and charges. 1283. 1284. 1285. 12«G. 1287. 1288. 1289. 1290. Certificate to be Section 1291, Annual fees, posted. Compensation of Board. Disposi- tion of moneys. Bond of Secre- tary. Report. Trading without registration. Per- mitting unregistered person to sell. Failure to renew registra- tion. Penalty. Physician. Pro- prietary medicines . Adulteration of drugs. Penalty. Poisons must be marked and re- cord kept. Prosecutions under this chapter. Repealing clause. 1292. 1 293. 1294. 1295. 1296. 1 21)7. Section 1282. (Sec. 1.) It shall hen after be unlawful for any person, other than a registered pharmacist, to retail. compound or dispense drugs, medicines or poisons, or to in- stitute or conduct any pharmacy, store or shop for retailing, compounding, or dispensing drugs, medicines or poisons, un- less such person shall be a registered pharmacist or shall em- ploy and place in charge of said pharmacy or store a regis- tered pharmacist within the full meaning of this act as here- inafter provided. 188 SS 1283-1287 PRACTICE OF PHARMACY. Tit. VII. Ch. XII. Sec. 1283. (Sec. 2.) In order to be registered, within the Jjjg^ full meaning of this act, all persons must be either graduates pharmacist. in pharmacy, or shall, at the time this act takes effect, be engaged in the business of a dispensing pharmacist on their own account, in the Territory of Idaho, in the preparations of physicians prescriptions and in the vending and com- pounding of drugs, medicine and poisons, or shall be licentiates of pharmacy. Sec. 1284. (Sec. 3.) Graduates in pharmacy shall be Graduates m considered to consist of such persons as have had four years Pnarma°y- practical experience in drug stores where prescriptions of medical practitioners are compounded, or have obtained a diploma from such colleges or schools of pharmacy as shall be approved by the Board of Pharmacy. Such shall be judged by the said Board of Pharmacy as sufficient guaran- tee of their attainments and proficiency. Sec. 1285. (Sec, 4.) Licentiates in pharmacy shall be Licentiates in such persons as have had two years' practical experience in pharmacy, drug stores wherein the prescriptions of medical practition- ers are compounded, and have sustained a satisfactory ex- amination before such Board of Pharmacy hereinafter men- tioned. The said Board of Pharmacy may grant certificates Examination, of registration to licentiates of such other State Boards as it may deem proper without further examination. It shall be the duty of the Board to grant in towns or villages of certificates. less than five hundred inhabitants, a minor certificate to such persons as they may deem competent to sell or vend Minor certm- such medicines and compounds as are required by the gen- cate' eral public, but such parties shall not be considered compe- tent unless they have had two years' experience in the sale of such medicines and compounds. The said certificate shall entitle the holder thereof only to registration as assistant Assistant pharmacist in towns and villages of over five hundred inhab- Pharmacifi itants. Sec. 1286. (Sec. 5.) The County Commissioners of Board of phar- each county in the Territory of Idaho at their first meeting after the passage of this act, shall appoint three reputable and practicing pharmacists or physicians of such county, Provided, There be the required three members residing therein; if not, then they shall select so many as may be required to fill said Board from the nearest and most con- venient adjoining county who shall constitute the Board of Pharmacy of such county, and shall hold office as respec- Term of office. tively designated in their appointments, for the term of one, two and three years respectively, as hereinafter provided, and until their successors have been duly appointed. The County Commissioners shall annually thereafter appoint one pharmacist or physician to fill the vacancy annually occurring in said Board. The term of office shall be three years. In case of the resignation or removal from the coun- ty of any member of said Board, or of a vacancy occurring vacancies, from any cause, the County Commissioners shall fill the vacancy by appointing some reputable pharmacist or physi- cian to serve as member of the Board for the remainder of the term. Sec. 1287. (Sec. 0.) The said Board shall within thirty organization days of its appointment meet and organize by the selection of board- of a Chairman and Secretary from the number of its own Duties of board. 189 & Tit. VII. Ch. Ml. PRACTICE OF PHARMACY. 8S 1288-1290 Prosecution*. Meetings nl the board Notice. Register. Persons now engaged in the business. to** •Boa-1 asV ,to^\ tio0' y0eH- members, who shall serve for the term of one year and shall perform the duties prescribed by the Board. It shall be the duty of the Board to examine all applications for registra- tion submitted in proper form; to grant certificates of regis- tration to such persons as may be entitled to the same, un- der the provisions of this act: to cause the prosecution of all persons violating its provisions; to report annually to the County Commissioners; said report shall furnish a record of the proceedings of the said Board for the year, as well as the names of all pharmacists duly registered under this act. The Board shall hold meetings for the examination of appli- cants for registration and the transaction of such other busi- ness as shall pertain to its duties, at least once in six months, and the said Board shall give thirty days notice of the time and place of such meeting. The said Board shall keep a book of registration in which shall be entered the names and places of business of all persons registered under this act, which registration book shall also contain such facts as said persons shall claim to justify their registration. Sec. 1288. (Sec. 7.) Every person claiming the right of registration under this act, who shall within three months after the passage of this act, forward to the Board of Phar- macy satisfactory proof supported by his affidavit, that he was engaged in the business of dispensing pharmacist on his own account in said county at the time of the passage of this act as provided in section 2, shall! upon the payment of the fee hereinafter mentioned, be granted a certificate of registration. Provided, That in case of failure or neglect to register as herein specified, then such person shall in order to be registered, comply with the requirements provided for registration as graduates &¥ pharmacy or licentiates in pharmacy, within the meaning of this act. Sec. 1289. (Sec. 8.) Any person engaged in the posi- tion of assistant or clerk in pharmacy at the time of this act akes effect, not less than eighteen years of age, who shall ave had at least two years' experience in drug stores where e prescriptions of medical practitioners are compounded, d who shall furnish satisfactory evidence to that effect to Board of Pharmacists shall, upon making application •egistration and upon payment to the Secretary of said d a fee of one dollar within sixty days after this act effect, be entitled to a certificate as ' 'registered assist- which certificate shall entitle him to continue in such as clerk or assistant, but such certificate shall noten- n to engage in business on his own account except ded for in section 4, or to the certificate of registered ist, unless he shall have had at least four years' ex- n such stores where the prescriptions of medical ers are compounded at the time of the passage of Thereafter he shall pay annually to the said Sec- um of one dollar during the time he shall con- q duties in return for which sum he shall receive his certificate. . (Sec. 9.) Every person claiming registration 1 pharmacist under section 7 of this act shall, cate is granted pay to the Secretary of said nacy the sum of five dollars and a like sum said Secretary by graduates in pharmacy and 190 &o\i\a^ ,?t'.e«' ge 6§ 1291-1293 PKACTICE OF PHARMACY. Tit. I'll. Ch.XII. Certificates to be posted. by such licentiates of other boards who shall apply for reg- istration under this act, and every applicant for registration by examination shall pay to the said Secretary the sum of ten dollars before such examination be attempted. Sec. 1291. (Sec. 10.) Every registered pharmacist who Annual fee. desires to continue the practice of his profession shall, an- nually during the time he shall continue in such practice, on such date as the Board of Pharmacy may determine, pay to the Secretary of such Board a registration fee. the amount of which shall be fixed by the Board and which, in no case, shall exceed five dollars; in return for which payment he shall receive a renewal of said registration. Every cer- tificate of registration, and every renewal of such certificate shall be conspicuously exposed in the pharmacy to which 'it applies. Sec. 1292. (Sec. 11.) Each member of such Board of compensation Pharmacy shall receive the sum of three dollars per day for of Soa?d.er8 each day actually engaged in such service and all legitimate and necessary expenses incurred in attending the meetings of such Board: said expenses shall be paid from the fees and penalties received by said Board under this act, and no part of the salary, or other expenses of said Board, shall be paid out of the public treasury. All moneys received by said Board in excess of said allowance and other expenses here- inbefore provided for, shall be held by the Secretary of said Board as a special fund for meeting the expenses of said Board; said Secretary giving such bonds as the said Board shall from time to time direct. The said Board shall in its annual report to the County Commissioners render an ac- count of all moneys received and disbursed by them pursuant to this act. Sec. 1293. (Sec. 12.) Any person not being or not hav- ing in his employ a registered pharmacist, within the full meaning of this act, except as provided in section 4, who shall after the expiration of ninety days from the passage of this act keep a pharmacy store or shop for retailing, com- pounding or dispensing medicines, or who shall take, use or compounding exhibit the title of a registered pharmacist, shall for each StherepersMi8. and every such offense be liable to a penalty of fifty dollars. . Any registered pharmacist or other person who shall permit ^/v^^-t^- <^ the compounding or dispensing of prescriptions or the vend-^ /^T X^^cvc o^.* J_ ffigof drugs, medicines or poisons in his store or place of business except under the supervision of a registered pharma- Failure to renew cist, or except by registered assistant pharmacist or any reglBtratlon- pharmacist, or registered assistant who, while continuing in business shall fail or neglect to procure his annual registra- tion, or any person who shall willfully make any false repre- sentation to procure registration for himself, or other per- son, or who shall violate any of the provisions of this act, shall for each and every such offense be liable to a penalty Penalty Disposition of moneys. Bond of secre- tary. Report of re- ceipts and dis- bursements. Trading without being registered. 1 1 fifty dollars, Provided, That nothing in this act shall in any ""inner interfere with the business of a physician in regular Physician. practice, or prevent him from supplying to his patients such articles as may seem to him proper, nor with the4 making l!"l vending of proprietary medicine or medicines placed in sealed packages with the name of the contents and of the pharmacisl or physician by whom prepared or compounded. Proprietary ' with the sale of the usual domestic remedies by retail medLcine8- 191 Tit. V IT. Ch.XIL PRACTICE OF PHARMACY. §§ 1294-1297 Quality of drugs . Adulteration, Penalty. Poisons must be marked. Record of poi- sons sold. Penalty. Prosecutions under this chanter. Repealing clause.) dealers, nor with the exclusively wholesale business of any dealers except as hereinafter provided. Sec. 1294. (Sec. 13.) Every proprietor or conductor of a drug store shall be held responsible for the quailty of all drugs, chemicals and medicines sold by him, except those sold in the original packages of the manufactures', and ex- cept those articles or preparations known as patent or pro- prietary medicines ; and should such proprietor or conduc- tor of a drug store knowingly, intentionally, or fraudulently adulterate, or cause to be adulterated such drugs, chemicals, or medicinal preparation, he shall be deemed guilty of a misdemeanor, and upon conviction, shall be liable to a pen- alty of not less than fifty dollars nor more than two hun- dred dollars, and his name stricken from the register. Sec. 1295. (Sec. 14.) No person shall sell or retail any poisons commonly recognized as such and especially aconite, arsenic, belladona, biniodide of mercury, carbolic acid, chloral hydrate, chloroform, conium, corrosive-sublimate, creosote, croton-oil, cyanide of potassium, digitates, hydro- cyanic acid, laudanum, morphine, nux vomica, oil of bitter almonds, opium, oxalic acid, strychnine, sugar of lead, sul- phate of zinc, white precipitate, red precipitate or cocoaine without affixing to the bottle, box, vessel or package con- taing the same, and to the wrapper or cover thereof a label bearing the name ''poison'*, distinctly shown together with the name and place of the seller; Provided, That nothing herein contained shall apply to physician's prescriptions specifying any of the poisons aforesaid. For his own pro- tection the pharmacist shall be required to keep a book to be known as a poison register in which he shall be required to keep a record of the kind of poison sold, the amount sold, for what purpose sold, accompanied with the signature of the purchaser. Any person failing to comply with the re- quirements of this section shall be deemed guilty of a mis- demeanor and shall be liable to a fine of not less than five dollars for each and every such offense. Sec. 1296. (Sec. 15.) All suits for the recovery of the several penalties prescribed in this act shall be prosecuted in the name of the people of the Territory of Idaho in any court having jurisdiction, and it shall be the duty of the Dis- trict Attorney of the county wherin such offense is commit- ted to prosecute all persons violating the provisions of this act upon proper complaint being made. All penalties col- lected under the provisions of this act, shall inure one-half to the Board of Pharmacy and the remainder to the School Fund of the county in which the suit was prosecuted and judgment obtained. Sec. 1297. (Sec. 10.) All acts or parts of acts regulat- ing the practice of pharmacy and the sale of poisons within this Territory, enacted prior to the passage of this act are hereby repealed. [Act Feb. 7, 1887. In effect immedi- ately.] 192 §§1298-1298e PRACTICE OF MEDICINE AND SURGERY. Tit. VII. Ch. XIII. CHAPTER XIII. Practice of Medicine and Surgery Section 1298. Who may practice medicine. 1298a. Must file diploma for record. L2986. Proof of identity. 1298c. Penalties. Section 1298d. Duty of public sherift and consta- ble. 1 298e. Exceptions out of act. Section 1298. (Sec. 1.) No person shall practice medi- cine or surgery in this Territory, who has not received a medical education, and a diploma from some regularly chartered medical school; said school to have a bona fide existence at the time when said diploma was granted. Sec. 1298a. (Sec. 2. ) Every physician or surgeon when about to take up his residence in this Territory, or, who now resides here shall file for record with the County Eecorder of the county in which he is about to practice his professsion, or where he now practices it a copy of his diplo- ma, at the same time exhibiting the original or a certificate from the Dean of the medical school of which he is a grad- uate, certifying to his graduation. Sec. 1298fr. (Sec. 3.) Every physician or surgeon when filing a copy of his diploma or certificate of graduation as required by section 2 of this act, shall be identified as the person named in the papers about to be filed — either by the affidavit of two citizens of the county or by his affidavit taken before a notary public or commissioner of deeds for this Territory, which affidavit shall be filed in the office of the County Recorder. Sec. 1298c. (Sec. 4.) Any person practicing medicine or surgery in this Territory without complying with sec- tions 1, 2 and 3 of this act, shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than fifty ($50) dollars, nor more than five hundred ($500) dollars; or by imprisonment in the county jail for a period of not less than thirty days nor more than six months, or by both fine and imprisonment for each and every offense; any person filing or attempting to file as his own the diplo- iria or certificate of graduation of another, or a forged affi- davit of identification shall be guilty of a felony, and upon conviction shall be subject to such fine and imprisonment as is made and provided by the Statutes of this Territory for said offense. Sec. 1298c/. (Sec. 5.) It shall be the duty of the pub- lic sheriff or constable to arrest all persons practicing medi- cine or surgery in this Territory, who have not complied with the provisions of this act; and the officer making the arrest shall be entitled to one-half of the fine collected. Sec 1298c. (Sec. 0.) No portion of this act shall apply to any person who in an emergency may prescribe or give advice, in medicine or surgery in a township where no phy- sician resides, or where no physician resides within conven- ient distance. Nor shall this act apply to midwifery or nurses in cases of child-birth, nor to those who have prac- ticed medicine or surgery in this Territory for a period of ten years next preceding the passage of this act, nor to persons prescribing in their own family. [Act Feb. LO, L887. In effect sixty days.] 13 193 Who may practice med- icine. Must file diplo- ma for record. Proof of identi- ty. Penalty. Duty of public sheriff. Exceptions out of act, catnip tea and moss- back . Tit.Vll. Ch. XIV. ARBOR DAY. §1299 CHAPTER XIV. Arbor Day. Section 1299. Arbor day, a legal holiday. Section 1299. That the last Monday in April in each year, is set apart for and hereby declared to be a legal holi- day in Idaho Territory, to be known as 'Arbor Day, "and is so declared for the purpose of encouraging the planting and setting out of trees in said Territory. [Act Feb. 1, 1887. In effect immediately.] 194 §§ 1300-1301 LAWFUL FENCES. Tit. VIII. Ch. I TITLE VIII. ENCLOSURES AND TRESPASSING OF ANIMALS. CHAPTER I. Lawful Fences. Section 1300. Lawful fences. 1301. Kinds of fences. 1302. Erection of partition fences. 1303. Duty of owners . 1304. Liability of adjoining owners. 1305. Disagreement, viewers to decide. Section 1306. Partition fence. 1307. Fence on another's land. 1308. Not to be removed. 1309. Survey of line. 1310. When may remove. 1311. Gates. Lawful fences. Kinds of stone. Worm, trv\ faf-*- Section 1300. A lawful fence, except as hereinafter provided, must be not less than four and a half feet high, and the bottom board, rail, pole or wire must not be more than twenty inches above the ground, and the space be- tween the top and bottom board, rail, pole or wire must be w^ell divided. Sec. 1301. Lawful fences are described as follows : 1st. If made of stone, four and a half feet high, two foot base and one foot thick on top. 2d. If it be a worm fence, the rails must be well laid and at least four and a half feet high. 3d. If made of posts with boards, rails or poles, the posts must be well set in the ground, and not more than eight feet apart, w^ith not less than three six inch boards or rails, or poles not less than two and a half inches in diameter at the small end; if four poles are used they must not be less than two inches in diameter at the small end, and if five or more poles are used they shall not be less than one and one- half (1|) inches in diameter at the small end. The top board, rail or pole must be not less than four and a half feet from the ground, the spaces well divided, and the boards, rails or poles securely fastened to the posts; if poles not less than three inches in diameter at the small end are used, the posts may be set twelve feet apart. 4th. If wire is used in the construction of fences, the posts must be not more than sixteen feet apart with not less than two barbed or three plain wires, together with one xrfyiA ^ U. board, rail,blockwire or pole, the wires must be well stretched and all securely fastened from one post to another; the board, rail, blockwire or pole must be placed at the top of such fence, and at a distance of not less than four and a half feet from the ground; and unless such, board, rail, blockwire or pole be placed and maintained at the top, the owner of any fence, constructed in part of wire, is liable for injury to stock caused thereby unless such stock was running at large contrary to law. 5th. If made in whole or in part of brush, ditch, pickets, hedge or any other materials, the fence to be lawful, must be equal in strength and capacity to turn stock, to the fences above described. 6th. All fences in good repair, of suitable material, and creeks, etc of every description, and all creeks, brooks, rivers, sloughs, ponds, bluffs, hills or mountains, that present a suitable 195 Posts. {jd^VL */* cA. if- BrusL, etc. Tit. VIII. Ch. I. LAWFUL FENCES. §§ i:i02-130G Partition fences, erection of. Act Feb. 5 , 1885. Dutv of owners Act Feb. 5, 1885. Liability of adjoining owners. Act Feb. 5 , 1885. Disagreement, viewers to decide. Act Feb. 5, 1885. Partition fence. Act Feb. 5, 1885. obstruction to stock are deemed a lawful fence. • [Act Feb. 10, 1887. In effect June 1, L887. | Sec. 1302. When two or more persons own land adjoin- ing which is inclosed by one fence, and it becomes neces- sary for the protection of the rights and interests of one party that a partition fence be made between them, the other or others when notified, must proceed to erect, or cause to be erected, one-half of such partition fence; said fence to be erected on or as near as practicable, the line of said land. And if, after notice given in writing, either par- ty fails to erect and complete within six months time there- after one-half of such fence, the party giving the notice may proceed to erect the entire partition fence and collect by law one-half of the costs of such fence from the other party, and he has a lien upon the land thus partitioned. Sec. 1303. Each co-terminous land owner must con- struct and keep in repair a just proportion of the line fence between their respective tracts of land, unless the owner of one of said tracts chooses to allow his land to lie uninclosed. Sec. 1304. When one of such adjoining proprietors has allowed his land to lie uninclosed, and afterwards* incloses it, he owes and is indebted to such adjoining owner one-half the value of any division fence owned by the other, used by him in forming such inclosure; and each must thereafter keep one-half of such fence in repair. Sec. 1305. If adjoining proprietors cannot agree as to the proportion or the particular part of a division fence to be made, maintained or kept in repair by each respectively, either party may apply, on five days' notice, to a justice of the peace of the township, if there be one, if not, to the Pro- bate Judge, for the appointment of three viewers who may examine witnesses on oath, and view the premises and must determine : 1. If the fence is owned by one proprietor, how much the other must pay as his proportion of the value; 2. If the fence or the whole thereof is not built, which part thereof must afterwards be built and kept in repair by each. The determination of the viewers must be reduced to writing and signed by them, and filed in the office of the County Recorder, and such determination is conclusive upon the parties. If any part of such determination consists in fixing the value of a fence for which one party is to pay the other a proportion also fixed, such proportion must be paid within thirty days after notice of such determination, and if not so paid may be recovered by action in any court of competent jurisdiction. The viewers are entitled to a fee of three dollars each, one-half to be paid by each proprietor. Sec. 1306. When one party ceases to improve his land, or open his inclosure, he must not take away any part of the partition fence belonging to him and adjoining the next inclosure, if the owner or occupant of such adjoining inclos- ure will, within two months after the same is ascertained, pay therefor such sum as is agreed upon by the parties, or, if failing to agree, then such sum as may be adjudged by viewers as provided in the last section; nor must such par- tition fence be removed when by so doing it will expose to destruction any crops in such inclosures. 196 5§ 1307-1320 TRESPASSING OF ANIMALS. Tit. VIII. Ch. II, Sec. 1307. When any person has built, by mistake and in good faith, a fence on the land of another, such person or his successor in interest may, within one year from the time of discovering such mistake, go upon the land of such other person and remove such fence, doing no .unnecessary dam- age thereby. Sec. 1308. The occupant or owner of land whereon a fence has been built by mistake, must not throw down or in any manner disturb such fence during the period which the person who built it is authorized by the last section to remove it, when by so doing lie will expose any crop to destruction. Sec. 1309. The person building- such fence, or the occu- pant or owner of the land whereon the same is built, may upon notice to the other party, whenever doubts arise about the location of such fence, require the surveyor of the county to run the division line between their respective lands, and the line so run is sufficient notice to the party making the mistake, so as to require him to remove such fence within one year thereafter. Sec. 1310. In all cases where the inclosures of two or more persons is divided by a partition fence of any kind, and either of the parties thinks proper to vacate his part of such enclosure, or to make a lane of passage between such adjoining inclosures, such person is at liberty to remove his share or part of such partition fence, on giving six months notice in writing of such intention to the party own- ing or occupying the adjoining inclosure, or to his agent, if such party is not a resident of the county. Sec. 1311. In all cases where a partition fence exists between parties, and a gate is established for passage through their lands, any other person may pass through such gate free, doing no unneccessary damage, and if any such person leave any such gate open, or does other dam- age to the premises, he is liable to the party aggrieved in double damages. ' Fence on another's land. Act Feb. 5, 1885. Not to be re- moved . Act Feb. 5, 1885. Survey of line. Act Feb 5, 1885. When may remove. Act Feb. 5, 1885. Gates. Act Feb. 5, 1885. CHAPTER II. Trespassing of Animals. Section 1324. Compensation of viewers. 1325. Execution, sale, costs. 1326. Surplus, disposition of. 1327. Appeal may be taken. Section 1320. Trespassing, penalty for, etc., manner of proceeding. 1321. Same. 1322. Same. 1323. Parties injured, proceeding. Section 1320. Any person having any inclosure in con- formity with the provisions of chapter I of this Title is deemed to possess a lawful inclosure, and if any horses, mules, jacks, jennies, cattle, hogs or sheep break into such inclosure, the attorney or party injured has alien upon such animals until he is recompensed for all damages committed by said animals; Provided, That persons owning or occu- pying any lands which are inclosed by any water course or natural embankment, or hill, or any cliff or rocks, may have the same examined by viewers as is provided in this chap- ter, and if such appraisers report the same a sufficient inclos- ure it must be deemed a lawful inclosure. 197 Trespassing, penalty for, etc. manner of pro- ceeding. Comp. laws, 832. Tit. VIII. Ch. If. TRESPASSING OF ANIMALS. £§ 1321-1326 Same. Coinp. laws, B32. Same. Cornp. laws, 832. Parties injured, proceedings. Cornp. laws, 333. Appraisers, compensa- itonof. Cornp. laws, 833. Execution, sale, costs. Comp. laws. 833. Surplus, dis- position of. Comp. laws, 834. Sec. 1321. If any animal before mentioned breaks into any inclosure or through any fence conforming to the re- quirement of chapter I, the owner of such animal must for such trespass pay to the party injured the full amount of damage he has sustained by reason of such trespass, to be recovered with costs in any court having jurisdiction. Sec. 1322. The party injured may take up any animal breaking into such inclosure and keep the same at the ex- pense of the owner, and the said taker-up has a lien upon such animal for damages, costs and expenses; but the owner may at any time pay charges, costs and expenses and take such animal. Sec. 1323. Upon complaint of the party injured, to any justice of the peace in the county in which such trespass is alleged to have been committed, said justice must issue a summons, as in civil actions against the owner of said pro- perty as defendant; if not known he may be designated in said summons by a fictitious name; upon the return of said summons, if personally served, proceedings must be had as in civil actions; if the summons be not personally served in consequence of such defendant not being found in the county, then the said justice must forthwith issue an order requiring three disinterested freeholders of the precinct named there- in, not related to the parties, to forthwith view the fence where the trespass is alleged to have been committed, and to appear at the time mentioned in said order, before said jus- tice and give evidence thereof; and upon such hearing, if said justice finds that said fence was lawful and sufficient, he must proceed to assess the damages accruing in consequence of said trespass, and render judgment therefor, together with costs, as in other actions; such judgment only binds said property. Sec. 1324. The viewers appointed are entitled each to the sum of three dollars for their services, and fifty cents each for every mile necessarily traveled by them, which must be taxed as costs in said proceedings. Sec. 1325. Upon the judgment, the justice must issue execution, particularly describing said property, and direct- ing a sale thereof for the satisfaction of said judgment and costs; and the officer to whom the same is delivered for ser- vice, must thereupon post notices in three conspicuous and public places in said precinct, which notice must contain a particular description of said property, and specify a time and place of sale thereof, as in notice of sale on execution. The justice, constable or sheriff may receive the same fees as for like services in civil action; at any time before said sale the owner may redeem said property from said lien, upon paying the costs and judgment, when rendered, or amount of said claim and costs. Sec. 1326. Upon the sale of any property as provided in this chapter, and after the payment of all damages, expenses and costs, the overplus, if any there be. must be paid over to the justice, and if not demanded by the owner of said pro- perty within ninety days from the date of said sale, seventy- five per cent, thereof must be paid by said justice into the county treasury for the benefit of the common school fund, and twentv-five per cent., the balance thereof, to the person 198 §§ 1327-1343 QUARTZ MILLS.— TRESPASSING OF HOGS. Tit. VIII. Ch. III-IV. taking and impounding said animal as compensation for his services. Sec. 1327. Nothing in this chapter contained prevents £j,g£*£ttay appeals as in civil cases. If in any case the amount of such comp. laws, damages equals or exceeds three hundred dollars, proceed- 834- ings to sell said property may be had in the district court. CHAPTER III. Enclosures of Reservoirs and Dumps of Quartz Mills. Section 1335. Reservoirs, etc., to be euclosed. Section 1336. Liability of owners. Section 1335. The owner or operator of any quartz mill Reservoirs, etc., must enclose with a good and substantial fence, sufficient c°ompe laws?*1' to turn stock, all reservoirs and dumps or other material, 74i. known to contain that which is injurious to the health of stock. Sec. 1336. Every person who fails to comply with the Liability of provisions of the last section is liable to the owner of any compfiaws, stock injured by drinking the water or acids that flow from 741- such mill, in twice the damage sustained. CHAPTER IV. Trespassing of Hogs. Section 1340. Not required to fence against. 1341 . Hogs trespassing, to be taken up and kept. Section 1342. Notices. 1343. Arbitration of damages. 1344. Failure of owner to appear ; sale. Section 1340. The owner or occupant of premises is not required to fence against hogs. Sec. 1341. If any hog is found trespassing, the occu- pant or proprietor of the premises may take up and safely Teep at the expense of the owner thereof, such hog, and ! lold the same until the payment of the expense and damages 3y the owner. Sec. 1342. Any person taking up a hog under this chap- ter, must immediately thereafter write out three notices in a plain, legible hand, giving a correct description thereof with the marks and brands, if any, on said hog, and the time and place of taking up, and at once post up said notices in a good and substantial manner in three conspicuous places in the precinct in which said hog was taken up. Sec. 1343. If the owner and taker-up of such hog can- not agree as to the amount of damage, they must each select a disinterested person residing in the precinct where such tres- pass has been committed, who must, after first hearing all the facts in the case from both parties interested, fix the amount of damages, if any, to be paid, and the same are a lien upon such hog until paid by the owner, and if said amount is not paid within five days together with costs of keeping said nog, the taker-up must notify the constable of the precinct whose duty it is to sell said hog at public auction on the premises where taken up, after first giving five days' notice of such sale in the manner prescribed in the last section, and the proceeds of such sale must be applied, first, to the payment of the constable's fees, which are the same as on 199 Not required to fence against. Act Jan'y 22, Hogstrespass^t^<^^ ^ Act Jan'y 22. fic^ 'I Notices. Act Jan'y 22, 1881. Arbitration of damages. Act Jan'y 22, Lien. ^ •* Sale. Appeal. Tit VIII. Ch. IV. TRESPASSING OF HOGS. 1344 Bond. J\\\^ Failure of owner to appear. Act Jari'y 22, 1881. Is 5 Sale. Disposal of proceeds. J VivjiA^dLt'L ^**| Vt, (XcVcVu^ execution; second, the payment of the award and subse- quent charges for keeping to the taker-up of such hog, and the remainder, if any, must be paid to the owner of such hog; Provided, That either party feeling aggrieved by the award may appeal to any justice's or Probate Court within the county within five days after said award; and the party so appealing must file a good and sufficient bond for the payment of all costs and expenses arising from said ap- peal. Sec. 1344. If the owner or person entitled to the pos- session of such hog does not appear and substantiate his title thereto and pay the charges thereon, within ten days after notice has been given, as above provided, such hog must be sold by the sheriff or any constable of the county at pub- lic auction, upon first giving public notice thereof in writ- ing, by posting the same in three of the most public places in the precinct where such hog was taken up, five days be- fore such sale. After deducting all the lawful charges of the taking-up, and the fees of the officers, which are the same as on execution, the remaining proceeds of such sale must be by said officer paid to the County Treasurer, taking his receipt therefor, which he must immediately file with the Auditor and Recorder of the county; and if at anytime within six months after the filing of said receipt the owner makes a satisfactory proof to the Board of County Commis- sioners that he was the lawful owner of said hog at the time it was taken up and sold, the Board of County Commission- ers must direct the Auditor and Recorder to draw a war- rant on the County Treasurer in favor of such party for the amount paid to such County Treasurer from the proceeds of the sale of such hog as shown by the receipt of said Treas- urer. 1 200 ^ uiv [ii4^\s-f/3tfr 31. ()wv £cV % y l*L -ft fy-v^ __ Cvaa. *\ ■%■ "pzrv-^A-cl C L <*-?£_ T\A\svy y*w\ 7 ^A^d_ qJUC "Cry) ^ ^^^ H* ^ ^ ^a-v^^u §§ 1360-1364 ESTRAYS. Tit. IX. TITLE IX. ESTRAYS. Section 1366. Penalty for rescue. 1367. Penalty for neglect to advertise. 1368. Claiming proceeds by owner. 1369. When estray may be taken up. 1370. Penalty for conversion. Section. 1360. Notice to owner. 1361. When may be taken up. 1362. Notice when owner unknown. 1363. Owner of estrays. 1364. Settlement of amount of damages. 1365. Sale of estrays. Section 1360. Every person taking up any stray ani- mal, must within five days thereafter, notify the owner thereof, if to him known, and request such owner to pay all reasonable charges and take such stray away. Sec. 1361. Any person finding an animal known to be an estray upon land enclosed and in the possession of such person, at any time between the first day of November and the first day of April, may immediately take up such ani- mal as an estray; or if, during such time, an animal be found upon premises occupied by another, in a condi- tion to require food to preserve its life, it may be taken up and published as an estray in accordance with the provisions of this Title. Sec. 1362. If the owner or claimant of any stray ani- mal be unknown, the taker-up must within ten days after taking up such animal post written notices giving a descrip- tion of such animal, the marks, brands, natural or arti- ficial as near as practicable, the name and residence of the taker-up, and the time at which the same was taken up, one in three public places of the county, and one also shall be posted at the door of the Auditor's office of said county, or give such notice by publication thereof in a weekly newspa- per published in the county, in at least four issues of said pa- per; the written notice must also be deposited by the taker-up of such estray in the office of the County Auditor, and must be kept on file by said Auditor for the period of six months. Sec. 1363. If the owner, or any person entitled to the possession of any estray, appears at any time within two months after said notice is filed with the auditor, as afore- said, and make out his right thereto, he is entitled to the pos- session of such estray upon payment of all lawful charges which have been incurred in relation to the same; Provided, That he need not pay for the keeping of said estray more than five days prior to the filing of the notice with the Audi- tor by the taker-up. Sec. 1364. If the owner and taker-up of any estray can- not agree upon the amount of such charges, or for the use of any such stray, either party may make application to any justice of the peace of the county where such stray was taken up to settle the same, and the party making such ap- plication must give notice thereof to the other party, and if any amount be found due to the taker-up by said justice, over the value of the use of such stray, the same is a lien on said stray until paid by the owner, together with the cost of such adjudication, and if not paid, said justice may enter up judgment and issue execution, commanding the sale of such estray to pay such debt and cost, but only sue}] strav 201 Notice to owner. Comp. laws, 746. When may be taken up. Comp. laws, 746. Notice when owner unknown, 9 ses.. 41. Owner of estrays. 12 ses., 61 Settlement of amount of damages. Comp. laws, 747. Tit. IX. ESTRA1S. §§ 1365-1370 Sale of e strays. 12 ses., 62. Penalty 1 T for rescue. Comp. laws, 748. Penalty for neglect to advertise. Comp. laws. 748. Claiming proceeds by owner. 9 ses., 42. When estray may be taken up. 9 ses., 42. Penalty for commission. Comp. laws, 748. can be made liable for debt and cost, and either party has the right to appeal to the district court as in other cases. Sec. 1365. If any person entitled to the possession of any estray does not appear and substantiate his title there- to, and pay the charges thereon, within two months from the time when such notice is filed with the county auditor, such estray must be sold at the request of the taker-up by the sheriff or any constable of the county, at public auction, upon first giving public notice thereof, in writing, by post- ing up the same in three of the most public places "in the precinct where such estray was taken up, at least ten days before such sale; and the taker-up may bid thereon at such sale; and after deducting all the lawful charges of the taker- up, as aforesaid, and the fees of the sheriff or constable, which are the, same as on an execution, the remaining pro- ceeds of such sale must be deposited in the county treasury. Sec. 1366. If any person, without the consent of the taker-up, takes away any stray taken up pursuant to the pro- visions of this Title, without first paying all the lawful charges incurred in relation to the same, he is liable to the taker-up for the full value of such stray, and may be pro- ceeded against before any court having competent juris- diction. Sec. 1367. If the taker-up of an estray neglects to cause the same to be advertised, or notice therof to be posted, or if he moves or causes the same to be moved beyond the bounds of the county where taken up, or if he neglects to perform any of the duties required of him by this Title, he is preclud- ing from acquiring any right of property in such stray, and from receiving any damages or charges for keeping the same, and he forfeits and must pay into the county treasury, a sum equal to the value of such stray, to be sued for and recovered by the County Treasurer, in the name of the county, and the amount so recovered must be applied to the common school fund of the county. Sec. 1368. If the owner or claimant of any stray sold under the provisions of this Title within the period of six months after such sale, make satisfactory proof of owner- ship to the County Commissioners of said county in which said stray was sold, the said Commissioners must thereupon order a warrant to be drawn upon the treasurer for the amount paid to him upon the sale of such estray. In case such proof is not made within the said six months the money must be applied to the county school fund of the county. Sec. 1369. Nothing in this Title must be so construed as to permit any person or persons to take up or treat any animal as an estray between the first day of April and the first day of November. Sec. 1370. If the taker-up of estray property converts the same to his own use, before the title thereto vests in him according to law, or if he knowingly and willfully violates any of the provisions of this Title, he may be fined in any sum not exceeding five hundred dollars; but in case estrays are work animals, they may be used by the taker-up in the same manner as though he were the owner thereof, and the value of such use must be deducted from the charges attach- ing to such estray. 202 £§ 1400-1405 TAXATION. -DEFINITIONS. Tit X. Gh. III. TITLE X. REVENUE. CHAPTER I. Property Liable to Taxation. Section I Section 1400. Property subject to taxation. | 1401. Property exempt from taxation. Section 1400. All property in this Territory, not ex- property sub- empt under the laws of the United States, except as erium- ^l^t^f^0^ erated in the next section, is subject to taxation as in this Title provided; but nothing in this Title shall be construed a to require or permit double taxation. // / c J. Sec. 1401. The following property is exempt from tax- jE&p?MfiM £rA First. All property used exclusively for public schools, and such as may belong to the United States, this Territory, [M / $ or to any county or municipal corporation or school district jh within this Territory; P& &!> /o O Second. Churches, chapels and other buildings, with the lots of ground appurtenant thereto and used therewith, be- longing to any church organization or society and used for religious worship, and from which no rent is derived; with their furniture and equipments; also public cemeteries; Third. Buildings or parts of buildings owned and used by the Order of Masons or Odd Fellows, or by any other benevolent or charitable society exclusively for the pur- poses of their order, and their furniture and equipments; Fourth. The property of resident widows and orphan children, not to exceed the amount of one thousand dollars to any one family; when their total assessment is less than five thousand dollars: Fifth. Growing crops; Sixth. Capital stock of corporations where the property of the corporation has been assessed; Seventh. Mining claims, but machinery, property and improvements upon or appurtenant to mining claims shall not be so exempt; Eighth. Public and private libraries; Ninth. Tools of a mechanic, farmer, miner or prospect- or and household furniture of a family or householder, not exceeding in value two hundred dollars; Tenth. Possessory rights to public lands. CHAPTER II. Definitions. Section 1405. Certain terms and phrases defined. Section 1405. Whenever the terms mentioned in this Phra8e8 efcc. section are employed in this Title, they are employed in the defined.' sense hereafter affixed to them: Kev- actt sec 5> First. The term ''property" includes moneys, credits, bonds, stocks, dues, franchises and all other matters and 203 TitX. Ch.Ill. LEVY OF TAXES. S§ 1410-1411 tilings, real, personal and mixed, capable of private owner- ship. Second. The term ''real estate" includes: 1. The possession of, claim to, ownership of or right to, the possession of land : 2. All mines, minerals and quarries in and under the land and all rights and privileges appertaining thereto; 3. Improvements. Third. The term "improvements" includes: 1. All buildings, structures, fixtures, fences and improve- ments erected upon or affixed to the land: 2. All fruit, nut bearing or ornamental trees and vines not 'of natural growth. Fourth. The term "personal property*' includes every thing which is the subject of ownership not included within the meaning of the term "real estate." Fifth. The terms "value" and "full cash value" mean the amount at which the property would be taken in payment of a just debt due from a solvent debtor. Sixth, The term "credits" means those solvent debts, owing to the person, firm, corporation, or association as- sessed. The term "debts"' means those liabilities owing by the person, firm, corporation, or association assessed to bona fide residents of this Territory, or firms, associations, or cor- porations doing business therein. Territorial and county tax, commie sioners, duties of. 12 see., 12. CHAPTER III. Levy of Taxes. Section 1410. Territorial Tax. County tax. Coun- ty Commissioners, duties of. 1411. Commissioners to regulate county rate of taxation. 1412. Tax to operate as a judgment or lien against property. Section 1413. Tax on personal property operates as a lien on real property . 1414. Tax on real property and tax on improvements a lien upon both. 1415 . Levy to pay outstanding warrants. Commissioners to regulate rate of taxation. Rev. act, sec. 2, Section 1410. An annual ad valorem tax of thirty -five cents upon each one hundred dollars, of the assessed value of all property in this Territory not exempted from taxation, is hereby levied for territorial purposes; and upon the same property the Board of County Commissioners, of each county is also hereby authorized and empowered to levy annually a tax for county expenditure, not exceeding one hundred and seventy-five cents on each one hundred dollars: and if they deem necessary, a tax of twenty-five cents on each one hun- dred dollars, to be expended for the repairs and construction of bridges within the county, as the Board of County Com- missioners may order and direct; and such additional and special taxes as the laws of this Territory may authorize and require them to levy; Provided, however, That whenever the Board of County Commissioners levy any tax such levy must be entered on the record of their proceedings, and their clerk must deliver a certified copy thereof to the Assessor, Tax Collector, Auditor and Treasurer; each of whom must file said copy in his office. Sec. 141 1. The Board of County Commissioners of each county must at their regular meeting in April, unless other- wise provided by special act. annually fix the rate of taxes to be levied for county purposes, designating the number of 204 §§ 1412 1425 LEVY OF TAXES.-ASSESSMENT. Tit. X. Ch. IV. cents on each one hundred dollars of taxable property levied for each purpose, and add thereto the amount levied by law on each one hundred dollars of taxable property for either Territorial or county purposes. Sec. 1412. Every tax has the effect of a judgment against the person, and every lien created by this Title has the force and effect of an execution duly levied against all property of the delinquent; the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof. Sec. 1413. Every tax due upon personal property is a lien upon the real property of the owner thereof from and after the second Monday in April in each year. Sec. 1414. Every tax due upon real property is a lien against the property assessed; and every tax due upon im- provements upon real estate assessed to others than the owner of the real estate, is a lien upon the land and improve- ments; which several liens attach as of the second Monday of April in each year. Sec. 1415. (Seel.) The County Commissioners of the several counties of the Territory at the time of levying other taxes are hereby authorized and empowered to levy a special tax of from six to fifteen mills on each one hundred dollars of taxable property to be assessed and collected as other taxes are assessed and collected, and the County Treasurer of the several counties are directed to place all moneys aris- ing from said special tax, and paid into their hands as a special fund, to be used for the payment of outstanding war- rants of the county not otherwise provided for in the order of their registry. [Act. Feb. 10, 1887, in effect immediately.] Tax as a lien or judgment againbt prop- erty. Rev. act, 3. Tax as a lien on real property. Rev. act, sec. 3. Tax as a lien on real property and improve- ments. Rev. act, sec. 3. Levy to pay outstanding warrants. 14 see. CHAPTER IV. Assessment of Property. •Section 1425. Property, how assessed. 1426. Live stock of non-residents. 1 127. Duty of Assessor. 1428. Assessment to be made, when. 1 129. Assessor to require a statement containing what. 1 i:',(). Commissioners to furnish blank forms of statement, etc. 1431. Statement to be filled out and re- turned to Assessor. 1432. Assessor may subpoena witnesses. 1433. Property of person neglecting or re- fusing to give statement, how assessed. 1434. Assessment of unknown or absent owners of property . 1435. Same. 143 # 1^3 />«f« /*! Tit.X. Ch.1V. ASSESSMENT OF PROPERTY. £§ 1426-1429- Live stock of non-residents. 13 6es., 13(3. 0- ^ 4. 4- <- *^v teky Duty of asses- sor. 13ses., 136 Assessments, how and by "whom made. Bev. act, sec. 11. Statement to be demanded by assessor, what to contain. Rev. act, sees. 11-12 be separately assessed. Every contract by which a debtor agrees to pay any tax or assessment on money loaned, or any mortgage, deed of trust, or other lien, shall as to such tax or assessment, be null and void. Sec. 1426. All live stock driven into this Territory for the purpose of grazing is liable to taxation for Territorial and county purposes at the full value in the county where found, at the end of thirty days after being so driven into this Territory. But this section does not apply to live stock on the trail and being moved through the Territory, or out of it, and the same stock must not be taxed twice in this Territory in the same fiscal year; provided that if the taxes have in good faith been paid on such live stock in another State or Territory in the same fiscal year then they shall not be taxed in this Territory. Sec. 1427. It is the duty of the Assessor and Collector of each of the Counties of this Territory to assess at their full value all live stock grazed as in the last section provided, at the end of thirty days after they are brought into this Territory. The Assessor must, where real estate is not liable therefor, require such taxes to be paid or secured at once, and incase of failure, must take possession of sufficient of such stock to pay such taxes and costs of sale, and must at once sell the same after advertising in the manner pro- vided by law in case of other delinquent taxes. Sec. 1428. Unless otherwise provided by special law, all taxable property shall be assessed in the county, city, or dis- trict in which it is situated on the second Monday of April, or, if not with the Territory on that day, on the day of the assessment; The Assessor must, between the second Mon- days of April and August in each year, ascertain the names of all taxable inhabitants and all property in his county sub- ject to taxation, and must assess such property to the per- sons by whom it was owned or claimed, or in whose posses- sion or control it was at twelve o'clock, m. of the second Monday of April next preceding, or on the day of the assess- ment as aforesaid ; but no mistake in the name of the owner or supposed owner of real property, shall render the as- sessment thereof invalid. In assessing solvent credits not secured by mortgage or trust deed a reduction therefrom shall be, of debts due to bona fide residents of this Terri- tory. Sec. 1429. He must exact from each person a state- ment, under oath, setting forth specifically all the real and personal property owned by such person, or in his posses- sion or under his control, at twelve o'clock, m. on the second Monday in April, and as to property not within the Territory on that day, on the day of the assessment. Such statement shall be in writing, showing separately: 1. All property belonging to, claimed by, or in the posses- sion or under the control or management of such person; 2. All property belonging to, claimed by, or in the pos- session or under the control or management of, any firm of which such person is a member; 3. All property belonging to, clamed by, or in the posses- sion, or under the control or management of any corpora- tion of which such person is president, secretary, cashier or managing agent; 206 § 1430 ASSESSMENT OF PROPERTY. Tit. X Ch. IF. 4. The county in which such property is situated, or in which it is liable to taxation, and (if liable to taxation in the county in which the statement is made), also the city, school district, road district, or other revenue districts in which it is situated; 5. An exact description of all lands in parcels, improve- ments and personal property, including all vessels, steam- ers and other water craft; and all taxable state, county, city, or other municipal or public bonds, and the taxable bonds of any person, firm or corporation, and deposits of money, gold-dust or other valuables, and the names of the persons with whom such deposits are made, and the places in which they may be found; all mortgages, deeds of trust, contracts and other obligations by which a debt is secured and the property in the county affected thereby; 6. All shares of stock in any national banking associa- tion located within this Territory, and all solvent credits unsecured by deed of trust, mortgage, or other lien on real or personal property, owned by, or due, or owing to such person or any firm of which he is a member, or any corpor- ation of which he is president, secretary, cashier or man- aging agent, deducting from the sum total of such credits and the assessed value of such shares of stock, such debts only unsecured by trust deed, mortgage, or other lien on real or personal property as may be owing by such person, firm or corporation, to bona fide residents of this Territory. No debt shall be so deducted unless the statement shows the amount of such debt as stated under oath in aggregate, Provided, In case of banks, the statement is not required to show the debt in detail, or to whom it is owing; but the as- sessor shall have the privilege of examining the books of such banks to verify said statement. Whenever one mem- ber of a firm, or one of the proper officers of a corporation, has made a statement showing the property of the firm, or corporation, another member of the firm or another officer need not include such property in the statement made by him: but his statement must show the name of the person or officer who made the statement in which such property is included. Sec. 1430. The Board of Commissioners must furnish the assessor with ''blank forms'* of the statements provided for in the preceding section, affixing thereto an affidavit, which must be substantially as follows : "I, , do swear that I am a resident of the county of (naming it) ; that the above list contains a full and correct statement of all pro- perty subject to taxation which I, or any firm of which I am a member, or any corporation, association, or company of which I am president, cashier, secretary, or managing agent, owned, claimed, possessed, or controlled at twelve o'clock, m. on the second Monday in April last, or now own, claim, possess or control and which was not within the Ter- ritory on that day, and which is not already assessed this year; and that I have not in any manner whatsoever trans- ferred or disposed of any property or placed any property out of said county, or my possession, for the purpose of avoiding any assessment upon tin? same, or of making this statement, and that the debts therein stated as owing by me are owing to bona fide residents of this Territory, or 207 Commissioners to furnish blank forma. Rev. act, sees. 11-12. Tit. X. Ch. II ASSESSMENT OF PROPERTY. §§ 1431-1440 Statement to be returned to assessor. Rev. act, sees. 11-12. Assessor uiay subpoena witnesses. N. S. Property of person neglect- ing to give statement. Rev. act, 22. Assessment of absent owners of property. Rev. act, 11. Same. Rev. act, 11. Property in another county Rev. act, 13 Teams tempora- rily within the Territory. Act Jan'y 2 , 1877. Consigned property. Rev. act, sec. 101. Trustees, etc, 2*. S. Holders of stock in a firm or corporation . Rev. act, 1 1 to firms or corporations doing business in this Territory." The affidavit to the statement on behalf of a firm or corpora- tion, must state the principal place of business of the firm or corporation, and in other respects must conform, sub- stantially, to the preceding form. Sec. 1431. The Assessor may fill out the statement at the time he presents it. or he may deliver it to the person and require him. within an appointed time, to return the same to him. properly filled out. Sec. 1432. The Assessor may, in his discretion, sub- poena and examine witnesses in relation to any statement: and all persons are required to testify when requested so to do by him; and in case of refusal, the Judge of any court must issue a subpoena and compel a refusing witness to give testimony, and may for each refusal impose a fine not ex- ceeding twenty dollars. Sec. 1433. If any person, after demand made by the Assessor, neglects or refuses to give under oath the state- ment herein provided for, or to comply with the other re- quirements of this Title, the Assessor must note the refusal on the assessment book, opposite his name, and must make an estimate of the value of the property of such person, and the value so fixed by the Assessor must not be reduced by the Board of Commissioners. Sec. 1434. If the owner or claimant of any property, not listed by another person, is absent or unknown, the As- sessor must make an estimate of the value of such property. Sec. 1435. If the name of the absent owner is known to the Assessor, the property must be assessed in his name; if unknown, the property must be assessed to ''unknown owners. " Sec. 1436. The Assessor, as soon as he receives a state- ment of any taxable property, situated in another county, must make a copy of such statement for each county in which the same is situated and transmit the same by mail or express to the Assessor of the proper county, who must assess the same as other taxable property therein. Sec. 1437. Any team, wagon, pack train, or any animal or property belonging thereto, or connected therewith, owned without the Territory and temporarily within the Territory for the purpose of carrying or delivering goods or other freight, is not subject to taxation. Sec. 1438. All personal property consigned to any per- son within this Territory from any place out of this Terri- tory must be assessed as other property; and all property in transit to any county in this Territory must be assessed at its destination or in any county where it remains thirty days. Sec. 1439. When a person is assessed as agent, trustee, bailee, guardian, executor, or administrator, his represent- ative designation must be added to his name, and the assess- ment entered on a separate line from his individual assess- ment. Sec. 1440. The owner or holder of stock in any firm or corporation, the entire capital or property whereof is assess- ed, must not be assessed individually for his stock in such firm or corporation. 208 §g 1141-1450 ASSESSMENT OF PROPERTY Tit.X. Ch.1V. Sec. 1441. The stockholders of every banking associa- tion located within this Territory, and organized under the laws of the United States or of this Territory, must be assessed and taxed on the value of their shares of stock therein in the county where such bank is located, whether such stockholders there reside or not, such shares must be listed and assessed with regard to the ownership thereof, subject however, to all deductions allowed in the assessment of other moneyed capital and subject to the restriction that taxation of such shares must not be at a greater rate than is assessed on any other moneyed capital in the hands of individual citizens of the Territory in the place where such bank is located. Every such banking association must fur- nish to the Assessor a full and correct list of the names and residence of its stockholders and the number of shares held by each. The taxes upon such shares must be assessed against the holder of the same in the list of personal prop- erty and must be paid by the bank. The real estate of such banking associations, is subject to territorial, county, mu- nicipal and district taxation as other real estate. Sec. 1442. The property of every firm and corporation must be assessed in the county where the property is situate, and must be assessed in the name of the firm or corpora- tion. Sec. 1443. The undistributed or unpartitioned property of deceased persons may be assessed to the heirs, guardians, executors, or administrators; and a payment of taxes made by either binds all the parties in interest for their equal pro- portions. Sec. 1444. Ferries and toll bridges must be assessed in the county where tolls are collected. Sec. 1445. All vessels of every class which are by law required to be registered must be assessed and the taxes thereon paid only in the county where the same are regis- tered, enrolled, or licensed. Sec. 1446. Vessels registered, licensed, or enrolled out of and plying, in whole or in part, in the waters of this Territory, the owners of which reside in this Territory, must be assessed in this Territory. Sec. 1447. All boats and small craft not required to be registered must be assessed in the county where their own- er resides. / Sec. 1448. Money and property in litigation in possession of a County Treasurer, of a Court, Clerk, or Receiver, must be assessed to such Treasurer, Clerk, or Receiver, and the taxes be paid thereon under the direction of the Court. Sec. 1449. Any property willfully concealed, removed, transferred or misrepresented by the owner or agent thereof to evade taxation, upon discovery must be assessed at not exceeding ten times its value, and the assess- ment so made must not be reduced by the Board of Com- missioners. Sec. 1450. Any property discovered by the Assessor to have escaped assessment for the last preceding year, if such property is in the ownership or under the control of the same person who owned or controlled it for such preceding year. may be assessed at double its value. 14 209 Taxation of bank shares. Kev. act, 5. Property of corporation or firm. Rev. act, 14. Undistributed property of deceased per- sons. Rev. act, 14. Ferries, etc. Rev. act, 5. Vessels. Rev. act, 5. Vessels. Rev. act, 5. Roats, etc. Rev. act, 5. Property in litigation. N. S. Concealed property. Rev. act, 16. Property not taxed previous- lv. N. S. Tit. X. Ch. TV, ASSESSMENT OF PROPERTY §§ 1451-1452 Property, liow listed. Kev. act. IS. Form of assess- ment book. K<>v. Act, IS. Sec. 1451. The Assessor must prepare an assessment book, with appropriate headings, alphabetically arranged, in which must be listed all property within the county and in which must be specified, in separate columns, under the appropriate head : 1. The name of the person to whom the property is assessed; 2. Land, by township, range, section, or fractional sec- tion; and when such land is not a congressional division or sub-division, by metes and bounds, or other description suf- ficient to identify it, giving an estimate of the number of acres, locality, and the improvements thereon. When any tract of land is situate in two or more school, road or other revenue districts of the county, the part in each district must be separately assessed, together with the improve- ments thereon; 3. City and town lots, naming the city or town, and the number of the lot and block, according to the system of numbering in such city or town, and improvements thereon; 4. All personal property showing the number, kind, amount, and quality; but a failure to enumerate in detail such personal property, does not invalidate the assessment; o. lots; 6. The cash value of real estate, other than city or town The cash value of improvements on such real estate; The cash value of city and town lots; The cash value of improvements on city and town 8. lots; 9. The cash value of improvements on real estate assessed to persons other than the owners of the real estate; 10. The cash value of all personal property, exclusive of money; 11. The amount of money; 12. The assessment of the franchise, roadway, road-bed, rails, and rolling stock of any railroad. Taxable improve- ments owned by any person, firm, association, or corpora- tion, located upon land exempt from taxation, shall, as to the manner of assessment, be assessed as other real estate upon the assessment roll. No value shall, however, be as- sessed against the exempt land, nor under any circum- stances shall the land be charged with or become responsible for the assessment made against any taxable improvements located thereon; 13. The school, road, and other revenue districts in which each piece of property assessed is situated; 14. The total value of all property; 15. The figure one (1), in separate columns, opposite the name of every person liable to pay a poll tax. Sec. 1452. The form of the assessment book must be substantially as follows: 210 § 1452 ASSESSMENT OF PROPERTY. Tit.X. Ch.ll <» <£, Ss o (■A O 2 Remarks. Poll tax. Total tax . Total value of all property after equalization. Total value of all property for taxation. Deductions on account of debts due bona-fide residents. Total value of all property. Amount of money. *- » *- * » +> Value of personal property, Value of improvements on real estate assessed to per- sons other tban owners of the real estate Value of improvements thereon. Value of city and town lots. Value of improvements thereon. Value of real estate other than city and town lots . School, road, or other district in which located . Number of Acres. H ft o 9 & ft o O — h M 1 o 02 ft - Block. Lot. Fraction. a a 5 03 U O o ao «j K >, „ -»« C3.Q aa — ■ g Section. Subdivision of section. Residence. Tax-payers' Names. When tax paid. 211 • s o> a W.2 ■J ® H £ « A W 00 0^ a oc a a Ou Tit. X. Ch. VI. ASSESSMENT OF PROPERTY. \% 1453-1462 A8S6B8UHJIJt book, ■when completed. Kev. act, 19. Oath of assessor. Assessment delivered to clerk of coin- mis sioners. Rev. act, 19. Notice of equalization. Penalty for failure to com- plete assess- ment book . Rev act, 26. Owners of property desir- ing to be assessed. N. S. Assessor liable for taxes. Rev. act, 26. District attorney to prosecute. Rev. act, 26. Judgment, when entered. Rev. act, 26. Ditches, roads, etc. N. S. Statistics to be furnished by assessor. 14 see. Sec. 1453. On or before the second Monday of August in each year, the assessor must complete his assessment book. He and his deputies must take and subscribe an affi- davit in the assessment book, to be substantially as follows: "I, , assessor of (or deputy assessor, as the case may be) county, do swear that between the second Mon- day in April and the second Monday in August eighteen hundred and , I have made diligent inquiry and ex- amination to ascertain all the property within the county (or within the subdivision thereof assessed by me, as the case may be), subject to assessment by me, and that the same has been assessed on the assessment book, equally and uniformly, according to the best of my judgment, informa- tion, and belief, at its full cash value; and that I have faith- fully complied with all the duties imposed on the assessor under the revenue laws; and that I have not imposed any unjust or double assessment through malice or ill-will, or otherwise; nor allowed any one to escape a just and equal assessment through favor, or reward or otherwise." But the failure to take or subscribe such an affidavit, or any af- fidavit required by this Title, will not in any manner affect the validity of the assessment. Sec. 1454. As soon as completed, the assessment book, together with the statements, must be delivered to the Clerk of the Board of Commissioners, who must immediately give notice thereof, and of the time the Board will meet to equalize assessments, by publication in a newspaper, if any is printed in the county ; if none, then in such manner as the Board may direct; and in the meantime the assessment book must remain in his office for the inspection of all persons inter- ested. Sec. 1455. Every Assessor who fails to complete his assessment book forfeits the sum of one thousand dollars, to be recovered on his official bond for the use of the county. Sec. 1456. Lands once described on the assessment book need not be described a second time, but any person claiming the same and desiring to be assessed therefor, may have his name inserted with that of the person to whom such land is assessed. Sec. 1457. The Assessor and his sureties are liable on his official bonds for all taxes on property within the county, which through his willful failure or neglect, is unassessed. Sec. 1458. The District Attorney must, after the As- sessor completes the assessment book for the year, com- mence an action on the Assessor's bond for the amount of taxes lost from such willful failure or neglect. Sec. 1459. On the trial of such action, the value of the proj)erty unassessed being shown, judgment for the amount of taxes that should have been collected thereon must be en- tered. Sec. 1460. Water ditches constructed for mining, man- ufacturing, or irrigation purposes, and wagon or turnpike toll-road or telegraph lines, must be assessed the same as real estate by the Assessor of the county, at a rate per mile for that portion of such property as lies within his county. Sec. 1462. That the Assessor of the several counties of this Territory must forward to the Territorial Controller on 212 § 1463 ASSESSMENT OF PROPERTY. Tit.X. Ch.IV. or before the tenth day of September, in each year a com- plete synopsis of their assessment roll, giving the number of horses, cattle, sheep, mules, jacks, and jennies, and the amount at which they are assessed; number of acres of im- proved land, patented and unpatented with improvements and their value; number of mercantile establishments and value of merchandise assessed; number of quartz mills, con- centrators, samplers, smelters, and other mining improve- ments and their value; number of poll-tax receipts sold; amount of wheat, oats, barley, corn, flaxseed, hay and veg- etables assessed and their value ; number of miles of railroad track assessed and value per mile; amount of rolling stock, depots and other railroad properties assessed, and their value; estimated population of the county, and such other infor- mation concerning the progress and development of their respective counties as may be in their possession. Sec. 1463. (Sec. 1.) The president, secretary, super- intendent, or other principal accounting officers of any rail- road or telegraph company having property in this Territo- ry, whether incorporated by any law of this Territory or not, when any portion of the property of said railroad or telegraph company is situated in more than one county, shall list for assessment and taxation, verified by the oath of the person so listing all the following described property belonging to said corporation within the Territory, viz.: road-bed superstructure, right of way and all structures situate thereon, rolling stock, side track, telegraph lines, furniture and fixtures, and personal property belonging to such corporation. Such list shall contain, first, the number of miles of such railroad or telegraph line in the Territory, and the number of miles of the same in each organized county therein ; Second. And such return must be made to the Territorial Controller on or before the first day of April annually. If the return aforesaid be not received by said Controller by the third day of April, he must thereupon proceed to obtain the facts and information aforesaid in any manner that may appear most likely to secure the same correctly, and for that same purpose may address a written communica- tion to the corporation or to some officer of the corporation who has failed or refused to make the return aforesaid. As soon as practicable after the Controller has received said re- turn or procured the information to be set forth in said re- turn, a meeting of the Territorial Board of Equalization, con- sisting of the Governor, Territorial Treasurer and Controller, shall be held at the office of said Controller, and the said Board must then value and assess the property of said cor- poration for each mile of said road or line, the value of each mile to be determined by dividing the sum of the whole valuation by the number of miles of said road or line. In making up such valuation or assessment, the said Board shall examine and consider the return herein required to be made, or the information procured by the Controller in de- fault of such return, together with such other reliable in- formation relative thereto as they may be able to procure; said Board shall not assess the value of any machine shop, or repair shop, or other buildings not situated on said right of way, or grounds, or other real estate of any corporation 213 Railroad or telegraph in more than one county. 14 ses. List for taxa- tion. List to contain what. Keturn to con- troller annually . Failure to return. Board of equal- ization. Valuation and assessment. Buildings on right of way. TitX. Ch.f. EQUALIZATION OF TAXES. §§ 1464-1476. Duty of county assessor. Assessments certified to. counties. Placed on the county assess- ment roll. Penalty when return refused. False list or statement. or company within this Territory : but it shall be the duty of the Assessor of the county, city or district in which said machine or repair shops, or other buildings, or grounds, or other real estate is situated, to assess the same and make return thereof in the manner provided for the -assessment and return of real estate belonging to individuals. On or before the second Monday of May, or as soon thereafter as the said Board, or any two thereof, shall have made and de- termined said valuation and assessment, the Territorial Controller must certify to the Clerks of the Boards of Coun- ty Commissioners of the several counties in which property of the aforesaid corporations, or any part thereof, may be situated, the assessment per mile so made on the property of any such corporation, specifying the number of miles and amount in each of said counties; the county commissioners must thereupon divide and adjust the number of miles and the amounts falling within each precinct, city, town, school district or other division in their respective counties, and cause such amounts to be entered and placed on the lists of taxable property, or assessment rolls returned by the several Assessors. The Controller must certify whether a return was made to him by such corporation, or proper officer thereof, or whether the information required in and by such returns was procured by himself; and in case the return was not made as required by this act, or, being made, was not sworn to, it is the duty of the County Commissioners to add any amount not exceeding ten per cent, to the valua- tion thus brought before them. Sec. 1464. (Sec. 2.) Whoever shall willfully make a false list, schedule or statement required by this act, under oath is guilty of a felony. [Act Feb. 10, 1887. In effect immediatelv.] Commissioners, •when to equal- ize assessment. Rev. act, 22. Commissioners may correct assessments. Rev act, 22. CHAPTER V. Equalization of Taxes. Sectton 1475. Commissioners, when to equalize assessment. 1470. Commissioners empowered to cor- rect assessment. 1477. No reduction to be made unless on application of person assessed. 1478. Examination of person assessed by commissioners for purposes of equalization. 1479. Commissioners may subpoena wit- nesses and take evidence. 1480. Assessor and Deputy to attend upon hearing of application. Section 1481. County Recorder to attend with ab stract of titles. 1482. Commissioners to use information and direct entry of mortgages, etc. 1483. Commissioners may direct new as- sessment to be made, etc. ; notice to person interested. 1484. Clerk of Commissioners to record proceedings, alterations, etc. ; oath of Clerk as to correctness of rec- ord. 1485. Commissioners to determine on ad- ditional assessments and correc- tions. Section 1475. The Board of Commissioners of each county must meet on the fourth Monday of August in each year, to examine the assessment book and equalize the as- sessment of property in the county. It must continue in session for that purpose from time to time until the business of equalization is disposed of. Sec. 1476. The Board lias power to determine all complaints in regard to the assessed value of property, and may, except as prohibited in this Title, correct any valua- tion by adding or deducting such sum as may be necessary to make it conform to the actual cash value. 214 §g 1477-1485 EQUALIZATION OF TAXES. Tit. X. Ch. V. Sec. 1477. No reduction must be made in the valuation of property unless the party affected thereby, or his agent, makes and files with the Board a written application there- for verified by his oath, showing the facts upon which it is claimed such reduction should be made. Sec. 1478. Before the Board grants the application or makes any reduction applied for. it must first examine, on oath, the person or^&gent making the application touching the value of the property of such person. No reduction must be made unless such person or the agent making the application attends and answers all questions pertinent to the inquiry. Sec. 1479. Upon the hearing of the application the Board may subpoena such witnesses, hear and take such evidence in relation to the subject pending as in its discre- tion it may deem proper. Sec. 1480. During the session of the Board the Asses- sor and any Deputy whose testimony is needed must be present, and may make any statement or introduce and ex- amine witnesses on questions before the Board. Sec. 1481. The County Recorder must, when required, during the session, attend on the Board with an abstract of all unsatisfied mortgages and trust deeds given to secure the payment of loans and other liens on record in his office. Sec. 1482. The Board may use the abstract and all other information it may gain from* the records of the Coun- ty Recorder or elsewhere in equalizing the assessment of the property of the county, and must require the Assessor to enter upon the assessment book any property which has not been assessed; and any assessment made as prescribed in this section, has* the same force and effect as if made by the Assessor before the delivery of the assessment book to the Clerk of the Board. Sec. 1483. During the session of the Board, it may di- rect the Assessor to assess any taxable property that has escaped assessment, or increase any valuation or add to the amount, number or quantity of property when a false or in- complete list has been rendered, and make and enter new as- sessments (at the same time cancelling previous entries), when any assessment made by him is deemed by the Board so incomplete as to render doubtful the collection of the tax; but where they have not appeared the Clerk must notify the persons interested by letter deposited in the post-office or express, post paid and addressed to the person interested at least ten days before action taken, of the day fixed when the matter will be investigated, which shall be the first Mon- day of October. Sec. 1484. The Clerk of the Board must record in a book to be kept for that purpose all changes, corrections and orders made by the Board, and also all proposed changes and corrections as to which notice is required to be given, and during its session, or as soon as possible after its ad- journment, must enter upon the assessment book all changes and corrections made by the Board. Sec. 1485. On the first Monday of October, the Board must meet and continue in session until all the parties ap- pearing have been heard, and until the proposed additional assessment, changes and corrections have been acted upo?i. 215 Reduction on application of person. Kev. act, 22. Examination of person, etc. Rev. act, 22. Commissioners may subpoena witnesses. Rev. act. 22. Assessor and deputy to attend hearing. Rev. act. 22. County recorder to attend. Rev. act, 22. Commissioners to use informa- tion, etc. Rev. act, 22. Commissioners may direct new assessments to be made. Rev. act, 22. Clerk to record proceedings, etc. Rev. act, 23. Commissioners to determine additional assessments. Tit. X. Ch. VI. DUTIES OF THE AUDITOR. §§ 1500-1504 and the Board may subpoena witnesses and hear evidence as provided upon application for reduction of: assessments; and the Clerk of the Board must keep a record of their pro- ceedings, and as Auditor he may receive from the tax col- lector the original assessment book, and may retain the same for the time necessary to enter the additional assess- ment, changes and corrections ordered by the Board, when he shall return it to the tax collector with his affidavit at- tached, that all such additional assessments, changes and corrections have been properly entered therein. Auditor to enter in assess- ment book valu- ation of prop- erty. Rev. act, 2:;. Auditor to prepare state- ment. N. S. Statement transmitted to ■controller. N. S. Delivery of assessment book. Affidavit. Tax collector eharged with tax levied. N. S. CHAPTER VI. Duties of the Auditor in Relation to Revenue. Skction 1 500. Auditor to enter in assessment book total valuations of property. l.")01. Auditor to prepare statement, show- ing what. 1502. Statements transmitted to Control- ler. Section 1503. Delivery of assessment book to Col- leccor and Auditor's affidavit. 1504. Tax Collector charged with full amount of taxes levied. 1505. Auditor to verify all statements made by him. Section 1500. The County Auditor, as soon as the assessment book is corrected and equalized as directed by the Board of Commissioners, must proceed to add up the valuations, and enter the total valuation of each kind of property and the total valuation of all property on the assessment book, and also carry out in a separate money col- umn the totals of taxes composed of Territorial, county, and other taxes to each person. Sec. 1501. The Auditor must, on or before the third Monday ^November in each year, prepare from the "assess- ment book" of such year, as corrected by the Board of Com- missioners, a statement, showing in separate columns: 1 . The total value of all property ; 2. The value of real estate; 3. The value of the improvements thereon; 4. The value of personal property, exclusive of money; 5. The amount of money. Sec. 1502. The Auditor must, as soon as such state- ment is prepared, transmit it by mail or express, to the Ter- ritorial Controller. Sec. 1503. On or before the second Monday of Septem- ber he must deliver the corrected assessment book to the tax collector, with an affidavit attached thereto, and by him subscribed as follows: "I , do solemnly swear that, as Clerk of the Board of Commissioners of County, I have kept correct minutes of all the acts of the Board touch- ing* alterations in the assessment book; that all alterations agreed to and directed to be made, have been made and en- tered in the book, and that no changes or alterations have been made therein except those authorized: and that as Auditor I have reckoned the respective sums due as taxes, and have added up the columns of valuations and taxes, as required by law." Sec. 1504-. On delivering the assessment book to the Tax Collector, the Auditor must charge the Tax Collector with the full amount of the taxes levied and forthwith trans- 216 £§ 1505-1516 COLLECTION OF PROPERTY TAXES. Tit.X. Gh. ril. mit by mail to the Territorial Controller a statement of the amount so charged. Sec. 1505. The Auditor must verify by his affidavit ^fitorto attached thereto all statements made by him under the pro- Itatementa. visions of this Title. N- s- CHAPTER VII. Collection of Property Taxes. Section 1515. 1516. 1517. 1518. 1519. 1520. 1521. 1522. 1523. 1524. 1525, 152G. 1527. 1528. 1529. 1530. 1531. 1532. 1533. 1531. 1535. 1536. 1537. 1538. 1539. 1540. 1511. 1542. 1513. 1541. Tax Collector to publish notice, specifying what. Manner of publication of notice. Tax Collector to note date of pay- ment Receipt to be given. Taxes of decedents, bow paid ; duty of Probate Judge. Settlement of Collector with Auditor, when made ; form of. Liability of Tax Collector refusing or neglecting to settle. Action against Collector for such re- fusal or neglect. Wnen taxes are delinquent, addition thereto of fifteen per cent. Certain times when taxes must not be received. When delinquent list must be com- pleted. All matters on assessment book, etc., to be set down in numerical or al- phabetical order . Credit to be given to Tax Collector on final settlement, etc . Tax Collector charged with delin- quent taxes and fifteen per cent, additional. Auditor to transmit statement to Controller, time when; form of. Publication of delinquent list, when made, what to contain. Notice of sale appended to delin- quent list. Manner of making publication. Same. Sale, when and where to take place. Notice containing what to be filed with County Recorder. Collector to collect an additional sum to defray costs, etc., sum, how collected. Manner of conductiug sale. Same. Owner of property may designate what portions to be sold first. Property purchased by county . Redemption of same. When purchaser does not make pay- ment on next day, property to be re-sold. Bid of person once refusing to make payment not to be received Collector to give purchaser a dupli- cate certificate of sale. Section 1545. Certificate of sale, one to be given to purchaser, one filed with Recorder and the other retained by Collec- tor. 154G. Collector to enter in a book descrip- tion of land sold, etc. 154/. Lien of Territory vests in purchas- er ; how divested . 1548. Redemption of property. 1549. Redemption, how made. 1550. Treasurer to report to Auditor the names of persons entitled to re- demption. 1 55 1 . Recorder to file certificate of sale. 1552. When property is redeemed, Recor- der to note it in book. 1553. When property is not redeemed within six months, Collector to give deed to purchaser. 1554. Property sold to county ; redemption of distribution of moneys. 1555. Recitals in deed primary evidence of what. 1556. What recitals are conclusive evi- dence. 1557. Deed conveys absolute title. Ex- ception. 1558. Assessment book, delinquent lists, etc., primary evidence of what. 1559. Protest against sale. 1560. Seizure and sale of personal prop- erty for taxes. 1561. Manner of conducting sale. 1562. Same. 1563. Collector's charges for conducting sale and for seizure. 1564. Title to such property vests in pur- chaser on payment, etc. 1565. Excess of proceeds over taxes and costs returned to owner, etc. 1566. Unsold portion to be left at place of sale at risk of owner. 1567. Final settlement of Collector with Auditor. 15(58. Same. 1569. Same. 1 570. Collector to make certain affidavit. 1571. Auditor to file statement of unpaid taxes. Cancellation. 1572. Unpaid taxes not cancelled to be en- tered on assessment book of each succeeding year. 1 573. Rate of interest on delinquent taxes. 15/4. What mistakes do not affect sale of property for taxes . 1575. Collection of taxes by action. 1576. Same. Section 1515. Within ten days after the receipt of the Colloctorto assessment hook, the Tax Collector must publish a notice publish notice, specifying that taxes will become delinquent on the second 14ses- Monday in December next thereafter, and that unless paid prior thereto, ten per cent, wjll be added thereon. Sec. 1516. The notice in every case must .be published Manner of pub- fortwo weeks in some weekly or daily newspaper published UotSe?01 in the county, if there is one; or if there is not, then by post- Rer.aot.29. ing it in five public places in the county. 217 Tit. X. Ch. VII COLLECTION OF PROPERTY TAXES. §§ 1517-1527 Date ol pay- ment. Rev. act, 30. Receipt. Rev. act, 30. Taxes of deced- ents, duty of probate judge. Rev. act, 14. Settlement of collector . Rev. act, 32. Collector re- fusing to settle. Rev. act, 33. Action against collectors . Rev. act, 33. Delinquent taxes. 14 ses. When taxes not received. 14 ses. Delinquent list, ■when completed. 14 ses. Matters on assessment hooks, etc. 11 ses., 236. Credit to be given to tax collector . Rev. act, 32. Sec. 1517. The Tax Collector must mark the date of the payment of any tax in the assessment book, opposite the name of the person paying. Sec. 1518. He must give a receipt to the person paying any tax, specifying the amount of the assessment and the tax paid, with a description of the property assessed. Sec. 1519. The Probate Judge must require every ad- ministrator and executor to pay out of the funds of the estate all taxes due from such estate; and no order or decree for the distribution of any property of any decedent among the heirs or devisees must be made until all taxes against the estate are paid. Sec. 1520. On the first Monday in each month the Tax Collector must settle with the Auditor for all moneys col- lected for the Territory or county and pay the same to the County Treasurer and take duplicate receipts therefor and on the same day must deliver to and file in the office of the Auditor, the Treasurer's receipt and a statement under oath, showing: 1. An account of all his transactions and receipts since his last settlement; 2. That all money collected by him as Tax Collecter has been paid. Sec. 1521. A Tax Collector refusing or neglecting for a period of five days to make the payments and settlements required in this Title, is liable for the full amount of taxes charged upon the assessment roll. Sec. 1522. .The District Attorney must bring suit against the Tax Collector and his sureties for such amount, and in case of neglect, the Board of Commissioners may require him to do so; and when the suit is commenced, no credit or allowance must be made to the collector for the taxes outstanding. Sec. 1523. On the second Monday in December of each year all unpaid taxes are delinquent, and thereafter the Tax Collector must collect thereon, for the use of the county, an addition of ten per cent. Sec. 1524. No taxes must be collected or received from the second to the third Monday of December, inclusive, in each year. Sec. 1525. The Tax Collector must make out and, on the third Monday of December deliver to the Auditor a com- plete delinquent list of all persons and property then owing taxes. Sec. 1526. In the list so delivered must be set down in numerical or alphabetical order all matters and things con- tained in the assessment book and relating to delinquent persons or property. Sec. 1527. The Auditor must carefully compare the list with the assessment book, and if satisfied that it con- tains a full and true statement of all taxes due and unpaid, he must foot up the total amount of taxes so remaining un- paid, credit the Tax Collector who acted under it therewith, and make a final settlement wi^h him of all taxes charged against him on the assessment book, and must require from him the Treasurer's receipt for any existing deficiency. 218 §§ 1528-1538 COLLECTION OF PROPEETY TAXES. Tit X. Ch. VII. Sec. 1528. After settlement with the Tax Collector, as prescribed in the preceding section; the auditor must charge the Tax Collector with the amount of taxes, due on the de- linquent tax list, with the ten per cent, added thereto, and deliver the list duly certified to such Tax Collector. Sec. 1529. Within ten days after the final settlement, the auditor must transmit, by mail or express, a statement to the Territorial Controller, in such form as he requires, of each kind of property assessed and delinquent, and the total amount of delinquent taxes. Sec. 1530. On or before the fourth Monday in Decem- ber, the Tax Collector must publish the delinquent list which must contain the names of the persons, and a description of the property delinquent, and the amount of taxes and costs due opposite each name, and description, with the taxes due on personal property, added to taxes on real estate, where the real estate is liable therefor, or the several taxes are due from the same person. Sec. 1531. The Tax Collector must append and publish with the delinquent list a notice that unless the taxes de- linquent, together with the costs and percentage, are paid, the real property upon which such taxes are a lien will be sold at public auction. Sec. 1532. The publication must be made once a week, for six consecutive weeks, in some newspaper, or supplement thereto published in the county, or if there is none, then by posting a copy of the list in three public places in the countv. Sec. 1533. The publication must designate the time and place of sale. Sec. 1534. The time of sale must not be less than forty- two nor more than fifty days from the first publication; and the place must be in front of the County Court House. Sec. 1535. The Collector, as soon as he has made the publication required, must file with the County Recorder a copy of the publication, with an affidavit attached thereto that it is a true copy of the same; that tjie publication was made in a newspaper or supplement thereof, stating its name and place of publication, and the date of each appearance; and in case there was no newspaper published in his county, that notices were put up in three public places in the county designating the places therein, which affidavit is prima facie (.vi'lence of all the facts stated therein. Sec. 1536. The Collector must collect in addition to the taxes due on the delinquent list, and ten per centum added thereto, fifty cents on each lot, piece, or tract of land separately assessed, and on the assessment of personal pro- perty which must be paid into the County Treasury. Sec. 1537. On the day fixed for the sale, or on some subsequent day to which he may have postponed it, of which he must give notice, the Collector, between the hours of ten o clock, a. m. and three p. m. must commence the sale of the property advertised, commencing at the head of the list, and continuing alphabetically or in the numerical order of lots and blocks until completed. Sec. 1538. He may postpone the day of commencing 1 1 x' sale or the sale from day to day; but the sale must be completed within two weeks from the day first fixed. 219 Collector charged witb delinquent list. 14 ses. Auditor to transmit statement. Rev. act, 32. Publication of delinquent list. 14 ses. Notice of sale. N. S. / ( publication. s J^ iff/ f>«t*&? / Same. 11 ses., 237. Time and place of sale. 14 ses. Notice contain- ing what. N. S. Defraying costs. 14 ses. Manner of conducting sale. 11 ses., 237. Same. 11 ses , 237. Tit. X. Ch. VII. COLLECTION OF PROPERTY TAXES. §§ 1539-1546 Owner may designate portions first sold. 11 sc3., 237 38. Assessment and sale of property. Redemption of property sold to county Purchaser not making pay- ment. 11 ses., 237. Bid of person refusing to pay rejected. 11 ses., 237. Collector to give purchaser certificate. 11 ses., 238. Certificate of sale. 11 ses., 238. Desci'iption of land sold entered in a book. N. S. Sec. 1539. The owner or person in possession of any real estate offered for sale for taxes due thereon may desig- nate, in writing, to the tax collector, prior to the sale, what portion of the property he wishes sold, if less than the whole; but if the owner or the possessor does not, then the Collec- tor may designate it and the person who will take the least quantity of the land, or in case an undivided interest is assessed, then the smallest portion of the interest, and pay the taxes and costs due, including fifty cents to the collector for the duplicate certificate of sale, is the purchaser. But in case there is no purchaser in good faith for the same, as provided in this chapter, on the first day that the property is offered for sale, then when the property is offered there- after for sale, and there is no purchaser in good faith of the same, the whole amount of the property assessed shall be struck off to the county as the purchaser and the duplicate certificate delivered to the County Treasurer and filed by him in his office. No charge shall be made for the duplicate certificate when the county is a purchaser; and in such case the Tax Collector shall make an entry "sold to the county," on the delinquent list opposite the tax. and he shall be cred- ited with the amount thereof in his settlement. Sec. 1540. In case property assessed for taxes is pur- chased by the county pursuant to the provisions of the last section, it shall be assessed the next year for taxes in the same manner as if it had not been so purchased. But it shall not be exposed for sale; and the sale thereof, under such assessment shall be adjourned until the tinie of redemption, under the previous sale, shall have expired. Sec. 1541. In case property is sold to the county as purchaser, and is subsequently assessed, no person shall be permitted to redeem from such sale, except upon payment also of the amount of such subsequent assessment, cost, fees and interest. Sec. 1542. If the purchaser does not pay the taxes and costs before ten o'clock, a. m. of the following day, the prop- erty on the next sale day, before the regular sale, must be re-sold for the taxes and costs. Sec. 1543. The bid of any person refusing to make the payment for property purchased by him must not after such refusal be received on the sale of any property advertised in the delinquent list of that year. Sec. 1544. After receiving the amount of the taxes and costs, the Collector must make out in duplicate a certifi- cate, dated on the day of sale, stating (when known) the name of the person assessed, a description of the land sold, the amount paid therefor, that it was sold for taxes, giving the amount and year of the assessment, and specifying the time when the purchaser will be entitled to a deed. Sec. 1545. The certificates must be signed by the Col- lector and one copy delivered to the purchaser, and the other filed in the office of the County Recorder. Sec. 1546. The Collector before delivering any certifi- cate, must in a book enter a description of the land sold cor- responding with the description in the certificate, the date of sale, purchaser's name and amount paid, regularly num- ber the descriptions on the margin of the book and put a corresponding number on each certificate. Such book must 220 §§ 1547-1554 COLLECTION OF PROPERTY TAXES. Tit. X. Ch. VII. corder must that required Sec. 1552. be open to the public inspection without fee during office hours when not in actual use. Sec. 1547. On filing- the certificate with the County Re- corder, the lien of the Territory vests in the purchaser and is only divested by the payment to him or to the Tax Collector for his use, of the purchase money and twenty -five per cent thereon. Sec. 1548. A redemption of the property sold may be made by the owner or any party in interest within one year from the date of the purchase. Sec. 1549. Redemption must be made in lawful money of the United States, and when made to the Tax Collector he must credit the amount paid to the person named in the Collector's certificate, and pay it on demand to the person or his assignees. , Sec. 1550. In each report the Collector makes to the Auditor, he must name the person entitled to redemption money, and the amount due to each. Sec. 1551. On receiving the certificate of sale the Re- it, and make an entry in a book similar to the Collector. On the presentation of the receipt of the per- son named in the certificate, or tfi& Tax Collector for his use, of the total amount of redemption money, the Recorder must mark the word ''Redeemed," the date and by whom redeemed on the certificate and in the margin of the book where the entry of the certificate is made. Sec. 1553. If the property is not redeemed within six months from the sale, the Collector or his successor inyoffice must make to the purchaser or his assignee a deed m the property, reciting in the deed substantially the matters con- tained in the certificate, and that no person redeemed the property during the time allowed by law for its redemption. The collector is entitled to receive from the purchaser, two dollars and fifty cents for making such deed. Sec. 1554. In all cases where real estate has been or may hereafter be sold for delinquent taxes, and the county has become the purchaser, and has not disposed of the same, the person whose estate has been or may hereafter be sold, or his heirs, executors, administrators, or other successors in interest, at any time after the time of purchase thereof by the county, and before the county has disposed of the same, has the right to redeem such real estate by paying to the County Treasurer of the county wherein the real estate is situated the amount of taxes due thereon at the time of said sale, with interest thereon at the rate of ten per cent per an- num; and also all taxes that were a lien upon said real es- tate at the time said taxes became delinquent; and also for each year since the sale for which taxes on said land have not been paid, an amount equal to the percentage of Terri- torial and county tax for that year, upon the value of said real estate assessed for the year of the sale, with interest from the first day of January of each of said years respec- tively, at the same rate; and also all costs and expenses, and fifty per cent penalty, which may have accrued by reason of such delinquency and sale, and the costs and expenses of such redemption, as hereinafter specified. The County Aud- itor must, on the application of the person desiring to re- 221 Lieu "vests in purchaser. 14 ses. Redemption. 14 ses. Redemption, how made. Uses., 239. Treasurer to report, etc. N. S. Filing of certifi- cate. 11 ses., 238. Recorder to note redemption of property. 11 ses., 239. When property , not redeemed in / , . six months. yfovt tsi<<- &JI C^ 11 ses. ,238. e . p jj$C^^ J J Right to redeem by certain pay; ments. Tit.X. Ch. I'll. COLLECTION OF PROPERTY TAXES. §§ 3 555-1559 deem, make an estimate of the amount to be paid, and must give him duplicate certificates, specifying the several amounts thereof, one of which certificates must be delivered to the County Treasurer, together with the money; and the County Treasurer must execute a deed to the redemptioner. The County Treasurer must settle for the moneys received as for other Territorial and county moneys. The treasurer and auditor must be paid by the redemptioner for making out said estimates and deed, the sum of two dollars each. Upon the payment of the money specified in said certificate, and the giving of the deed aforesaid by the treasurer, any deed or certificate of sale that may have been made to the county becomes null and void, and all right, title, and inter- est acquired by the county under or by virtue of the tax sale ceases and determines. Whenever property sold to the county, pursuant to the provisions of this chapter, shall be redeemed, the moneys received on account of such redemp- tion shall be distributed between the Territory and the coun- ty, and to the respective funds, in the same manner as if the same had been paid in the first instance to the Tax Col- lector. Sec. 1555. The matters recited in the certificate of sale must be recited in the deed, and such deed, duly acknowl- edged or proved, is prima facie evidence that : 1. The property was assessed as required by law; 2. The property was equalized as required by law; 3. The taxes were levied in accordance with law; 4. The taxes were not paid ; 5. At a proper time and place the property was sold as prescribed by law, and by the proper officer; 6. The property was not redeemed; 7. The person who executed the deed was the proper officer; 8. Where the real estate was sold to pay taxes on personal property, that the real estate belonged to the person liable to pay the tax. /j-rcvtdL Sec. 1556. Such deed duly acknowledged or provided, is (except as against actual fraud) conclusive evidence of Money 8 received , how distributed. Recitals in deed, evidence of what. 11 ses., 239. Recitals conclu- sive evidence. 11 ses., 239. Absolute title. 11 ses., 239. Exception. Assessment book, etc., evi- dence of what. Validity of sale, protest. the regularity of all other proceedings, from the assessment by the Assessor, inclusive, up to the execution of the deed. Sec. 1557. The deed conveys to the grantee the abso- lute title to the lands described therein, free of all incum- brances, except any lien for taxes which may have attached subsequently to the assessment. Sec. 1558. The assessment book, or delinquent list or a copy thereof certified by the County Auditor showing unpaid taxes against any person or property, is prima facie evi- dence of the assessment, the property assessed, the delin- quency, the amount of taxes due and unpaid, and that all the forms of law in relation to the assessment and levy of such taxes have been complied with. Sec. 1559. Whenever property is advertised for sale for the non-payment of delinquent taxes, and the assessment is valid in part and void for the excess, the sale shall not for that cause be deemed invalid, nor any grant subsequently made thereunder be held to be insufficient to pass a title to the grantee, unless the owner of the property, or his agent, shall, not less than six days before the time at which the 222 §§ 1560-1572 COLLECTION OF PROPERTY TAXES. Tit. X. Ch. VII. property is advertised to be sold, deliver to the Tax Collector a protest in writing, signed by the owner or his agent, speci- fying the portion of the tax which he claims to be invalid, and the grounds upon which such claim is based. Sec. 1560. The Tax Collector may, at any time after it is assessed, collect the taxes due on personal property except when real estate is liable therefor, by seizure and sale of any personal property owned by the delinquent. Sec. 1561. The sale must be at public auction, and of a sufficient amount of the property to pay the taxes, percent- age, and costs. Sec. 1562. The sale must be made after one week's no- tice of the time and place thereof, given by publication in a newspaper in the county, or by posting in three public places. Sec. 1563. For seizing and selling personal property, the Tax Collector may charge in each case the same mileage as is allowed by law to the Sheriff of the county. Sec, 1564. On payment of the price bid for any prop- erty sold, the delivery thereof with a bill of sale, vests the title thereto in the purchaser. Sec. 1565. All excess over the taxes, per cent, and costs of the proceeds of any such sale, must be returned to the owner of the property sold, and until claimed must be deposited in the County Treasury subject to the order of the owner, heirs or asigns. Sec. 1566. The unsold portion of any property may be left at the place of sale at the risk of the owner. Sec. 1567. The Tax Collector must annually, on the first Tuesday after the first Monday of January, attend at the office of the Auditor with the delinquent list, and the Audi- tor must then carefully compare the list with the assessments of persons and property not marked as "Paid" on the assess- ment book, and when taxes have been paid, must note the the fact in the appropriate column in the assessment book. Sec. 1568. The Auditor must then administer to the Tax Collector an oath to be written and subscribed in the delinquent list, that every person and all property assessed in the delinquent list on which taxes have been paid, has been credited in the list with such payment. Sec. 1569. The Auditor must then foot up the amount of taxes remaining unpaid, and credit the Tax Collector with the amount, and have a final settlement with him; and the delinquent list must remain on file in the Auditor's office. Sec. 1570. At the same time the Collector must make an affidavit, indorsed on the list, that the taxes not marked as "Paid" have not been paid, and that he has not been able to discover any property belonging to, or in possession of, the persons liable to pay the same whereof to collect them. Sec. 1571. A statement of the amount of unpaid taxes must be filed by the Auditor with the Board of Commission- ers, and the Board may cancel all taxes which in its opinion cannot be collected, and return the statement to the Audi- tor. Sec. 1572. All taxes not canceled must be entered by the Auditor on the assessment book of each succeeding year until paid or canceled. 223 Seizure of per- sonal property, 8 ale of. Rev. act, 27. Manner of con- ducting sale. Rev. act, 27. Same. Rev act, 27. Collector's charges. Rev. act, 27. Title to property. Rev. act, 27. Excesa of pro- ceeds over taxes, etc. N. S. Unsold property. N. S. Final settlement. 11 sea., 240. Same. 11 aes., 240. Same 11 sea., 241. Collector to make affidavit. 11 ses.,241. Unpaid taxes. Cancellation. 11 bob., '241. Taxes uot can- celed. 11 sea , 241 . Tit. X. Ch. VIII. POLL TAXES. >> Kate of interest. N. S. Mistakes. N. S. Collection of taxes by action. N. S. ff\ Collection by action. Rev. act, 40. Sec. 1573. Interest at the rate of two per cent, per month must be collected on such delinquent taxes from the time they were first delinquent until paid. Sec. 1574. When land is sold for taxes correctly im- posed as the property of a particular person, no misnomer of the owner or supposed owner, or other mistake relating to the ownership thereof, affects the sale, or renders it void or voidable. Sec. 1575. When the owner of any assessed personal property, the taxes upon which are not a lien upon real prop- erty, has removed, concealed, or disposed of, or threatens or is about to remove, conceal or dispose of such property, or any part thereof, before the taxes levied thereon have been paid, or do, or suffer or cause to be done any act to pre- vent the seizure thereof by the Tax Collector, or when from any cause the Tax Collector is unable or fails to collect the taxes upon any assessed personal property, the District At- torney must upon written notice from the Tax Collector commence a personal action in the county where the assess- ment was made for such taxes and the percentage, interest, and costs, in the name of the county against such owner, and in any such action the provisional remedies of arrest and bail and of attachment may be issued against such owner and his property. Sec. 1576. On the trial a certified copy of the assess- ment, signed by the Auditor of the county where the same was made, with the affidavit of the Collector thereto at- tached, that the tax has not been paid, describing it as on the assessment book or delinquent list, is prima facie evi- dence that such tax and the per centum is due, and entitles him to judgment, unless the defendant proves that the tax was paid. f"rA Persons liable to poll-tax . Rev. act, 58. 13 ses., Bees 120-153. \^ SU. Cow ° CHAPTER VIII. Poll Taxes. Section 1600. Persons liable to poll tax. 1601. Territorial Controller to have blank poll tax receipts printed . Style to be changed every year. County Treasurer's duties in relation to same. 1602. Receipts to be delivered to Tax Col- lector. 1603. No oLher receipts to be used. 1604. Receipts to be charged to Tax Col- lector. 1605. Poll tax may be collected by seizure and sale of personal property. 1606. Mode of conducting such seizure and sale. 1607. Tax Collector may demand names. 1608. Debtors of persons owing poll tax to pay same for such person. Section 1609. Debtor may charge creditor for poll tax paid. 1610. Receipt for poll tax delivered 1 purchaser. 1611. Receipt, evidence of payment. 1612. Monthly settlement of Collector with Auditor. 1613. Collector's final settlement with Auditor. 1614. Auditor to return receipts to Treas- urer. 1615. Treasurer to credit Auditor. 1616. Poll tax books, willful omission of names. 1617. Collection of poll taxes. Delin- quents. 1618. Names on poll tax book. 1619. Poll tax, how divided. Section 1600. Every male inhabitant of this Territory over twenty-one and under sixty years of age. except pau- pers, insane persons, Indians not taxed, and active members of any volunteer fire company regularly enrolled as such, must annually pay a poll tax of three dollars; Prodded The same be paid prior to the second Monday in November; but if not paid prior to that day, then it shall be three dol- lars and fifty cents; three-fourths of which additional fiftv cents must be paid into the school fund of the county, and 224 §£ 1601-1608 POLL TAXES. Tit. X. Ch. VIII. the remaining one-fourth in addition to fifteen per cent on three dollars of all poll taxes collected, may be retained by the Tax Collector in full for collection of poll taxes. Sec. 1601. The Territorial Controller must, before the second Monday of January of each year, cause a sufficient number of blank poll tax receipts to be printed, of uniform appearance, changing the style thereof each year; and said Controller, after signing and numbering them, must cause a number thereof equal to the probable number of inhabi- tants in each county liable to pay poll tax, to be immediate- ly forwarded to the County Treasurer of each county, who shall sign them, or so many of them as may be required, and make an entry thereof in a book to be kept for that pur- pose; and thereupon deliver them to the County Auditor, who must likewise sign them and make an entry of the number he receives, in a book to be kept by him for that purpose. Sec. 1602. The County Auditor must from time to time issue to the Tax Collector so many of the receipts for poll tax as he may need, taking his receipt therefor. Sec. 1603. No receipts for poll tax other than those mentioned in this chapter, must be used or given for the payment of any such tax. Sec. 1604. Upon delivering any such receipts to the Tax Collector, the Auditor must charge the same to him and take his receipt therefor. All such receipts delivered to the Tax Collector before the second Monday of November must be for the sum of three dollars each and he must be charged that sum for each, and all such receipts delivered to the Tax Collector after the second Monday of November in each year must be for the sum of three dollars and fifty cents each, and he must be charged that sum for each. Sec. 1605. The poll tax is a lien upon the real property assessed to the person liable therefor, but when such person is not assessed for real property the Tax Collector may col- lect his poll tax at any time. The Tax Collector must de- mand payment of poll tax of every person liable therefor, and on the neglect or refusal of any person, who is not assessed for real property to pay the same, he must collect it by seizure and sale of any personal property owned by such person. Sec. 1606. The sale may be made after three hours verbal notice of time and place, and the provisions of the last preceding chapter as to seizure and sale of personal property are applicable thereto. Sec. 1607. The Tax Collector may demand of any em- ployer, or from the superintendent or foreman of any mine or reduction works or any agent of a corporation the names of all persons in his employ or employed in such mine or works or by any such corporation. Sec. 1608. Every person, company, or corporation in- debted to one who neglects or refuses, after demand, to pay a poll tax for which he is liable, becomes liable therefor, and must pay the same after service upon him, or upon any mem- ber or agent of such company or agent of such corporation, by the Collector of a notice in writing stating the name of any such delinquent. Territorial con- troller to have blank poll-tax II jai (Us. du $LL.t^' receipts printed. changed every Jo #. .<• _fi_ *-/ year. r County treas- urer's duties in relation to same. Receipts to be delivered to tax collector. Rev. act, 60. No other receipts- to be used. Rev. act, 61. Receipts to be charged to tux collector. Rev. act, 62. SI C^siA.* t-; % Poll tax may be collected by seizure and sale of personal property. Rev. act, 60. Mode of conduct- ing such seizure and sale. Rev. act, 06. Tax collector may demand names. Debtors of per- sons owing poll-tax to pay same for such person. 15 225 Tit.X. Ch. VII T. POLL TAXES. §§ 1609-1616 Debtor may charge creditor for poll-tax paid Rev. act, C6. Receipt for poll-tax deliv- ered to pur- chaser. Rev. act, 66. k\«-v- oJL» Receipt, evi- dence of payment. Rev. act, 64. Monthly set- tlement of collector with auditor. Rev. act, 70. Collector's final settlement with auditor. Rev, act, 70. -P Auditor to re- turn receipts to treasurer. Rev. act, 70. Treasurer to credit auditor. Rev. act, 70. Poll-tax books. 11 ses., 242. Wilful omis- sion ut liuines. Sec. 1609. Every person, company or corporation pay- ing the poll tax of another may deduct the same from any indebtedness to such person. Sec. 1610. The Tax Collector must deliver the poll tax receipt, filled out with the name of the person owing the taxes, to the purchaser of property at any such sale; in other cases he must deliver it, filled out in like manner, to the person paying the tax. Sec. 1611. The receipt so delivered is the only evidence of payment. Sec. 1612. On the first Monday in each month the Col- lector must make an oath, before the Auditor of the total amount of poll taxes collected by him during the last preceding month, and must at the same time settle with the Auditor for the same, and pay into the County Treasurer's office the total amount of poll taxes collected and file the Treasurer's receipt therefor with the Auditor. Sec. 1613. On the second Monday in November the Tax Collector must return to the auditor all three dollar poll tax receipts received by him and not used, and make full settle- ment with the auditor therefor, and pay to the Treasurer the total amount collected and not before paid in, and file the Treasurer s receipt therefor with the auditor; and at the time of this final settlement on the first Tuesday after the first Monday of January each year, the Tax Collector must re- turn to the auditor all three dollar and fifty cent poll tax re- ceipts received by him and not used, and make final settle- ment with the auditor therefor, and pay the Treasurer all poll tax money not before paid in and file the Treasurers re- ceipt therefor with the Auditor. Sec. 1614. The auditor must, as soon as either settle- ment is made, return to the Treasurer the receipts not used. Sec. 1615. The Treasurer must credit the auditor with , the receipts so returned, and must thereupon seal them up securely and transmit them to the Territorial Controller. Sec. 1616. It is the duty of the officer charged by law with the collection of poll taxes in the several counties of this Territory, during the month of January next succeeding any general election, to copy into a book furnished him by the Board of County Commissioner's of his county, to be known as the "Poll Tax Book,'' the name of every person on said poll lists subject to the payment of a poll tax. The names must be alphabetically arranged according to the first letter of the family name, and said book must be kept in his office as a public record. Such officer must from time to time add to the lists in said book, under the proper letter, the names of any residents of his county, or of any persons who may become residents of said county, or who may attain their majority, who are subject to the payment of a poll tax. And any resident of the county may require such officer to insert in said book, under the proper letter, any omitted name of any resident of said county who is subject to the payment of a poll tax, and for the willful omission from the proper place in said book of the name of any resident of his county, subject to the payment of a poll tax, such officer for- feits to the school fund of his county the sum of twenty-five dollars for each name so willfully omitted, to be recovered in 226 §§ 1617-1630 LICENSES. Tit. X. Ch. IX. Collection of poll-taxes. 11 sea., 242. Delinquents an action on his official bond by the County Superintendent of Public Instruction. Sec. 1617. Such officer must at the regular meeting of the Board of County Commissioners, in October each year, produce his poll tax books to the Board, and he must be charged with one poll tax for every name in said book, and can only be discharged by showing that he has collected the tax of every person named in said book, or that those from whom he has failed to collect such poll tax have died, re- moved from the county, or become exempt, or that for some other sufficient reason the tax in such case could not be col- lected; and every poll tax from which he is not thus dis- charged by the Board, he must collect before the first Tues- day after the first Monday of January then next ensuing, or be finally charged therewith; and the Board must cause ac- tion to be brought upon the official bond of such officer for the amount of such final charge, together with the amount of any other poll taxes he has willfully failed to collect; and in any such action, proof that the name of any delinquent is on his poll tax book, and that he was not discharged from the collection of the tax from such delinquent by the Com- missioners, or that any resident of the county had given him the name of any delinquent as that of a person subject to the payment of such tax, is prima facie evidence of such willful neglect by the officer, and can only be rebutted by proof that the tax is paid, or that the alleged delinquent is exempt or not subject to poll tax in the county, or that it could not be collected by the means afforded by law. Sec. 1618. No name once entered on said poll tax book must be erased therefrom except by the direction of the Board of County Commissioners, on the ground that the party is not subject to the tax; and any name once placed on a poll tax book must be carried to the new books succes- sively, to be prepared after each general election, unless so directed to be omitted. Sec. 1619. All money collected as poll tax under the provisions of this chapter, after the expense of collecting is paid, must be paid into the county treasury, one-third there- of to be appropriated to Territorial purposes, and the remain- ing two-thirds to county purposes. 11 ses., 243. Names on poll- tax book. Poll-tax, how divided. compiled laws, 505. 13 sea., 153. CHAPTER IX. , 4fhjU^oU-Ct "L CicCjiu Licenses. i to, Section 530. Licenses to be prepared and printed. Controller to transmit licenses. Forms and licenses. Auditor to sign and deliver. Auditor to keep license account. County Treasurer to report to Con- troller. When license to be procured. Suit against delinquents ; damages. Tax Collectors ; duties. Proof on trials. First Monday in each month settle- ments and payments to be made. Fees for licenses. License tax of auctioneers. 1631. 1632. 1633. 1634. 1635. 1636. 1637. L638. 1639. 1640. 1641. 161 J. Section 1643. 1644. 1645. 1646. 1647. 1648. 1649. 1650. 1651. 1652. Bridge or ferry license. Brokers.trust companies and others. Different kinds of licenses : (I. Billiards; i 2. Theaters, etc. ; ] 3. Caravans, shows, etc. ; [4. Pawnbroker. Certain exhibitions, etc., exemptod. Banking games at cards. Retail liquor licenses. Merchants' and keepers' of livery stables license. Exception in using liquors. Peddlers' and bawkers' license. Additional license, when required. ZJ6ty Section 1630. The Territorial Controller must prepare Licenses to be and have printed blank licenses of all classes mentioned in SrSPSfd and 227 printed. Rev. act, 81. Tit. X. Ch. IX. LICENSES. §§ 1631-1636 Controller to transmit licensee to treasurer. Rev. act, 81. Forms and licenses. Comp. laws, 501. Auditor to number, sign, and deliver. Rev. act, 82-85. Auditor to keep license account. Rev. act, 82. this chapter for terms of three, six and twelve months, and for such shorter terms as are herein authorized to be issued, with a blank receipt attached for the signature of the Tax Collector when sold. Sec. 1631. The Territorial Controller, after signing, numbering, and classifying the same, must transmit as many as may be required to the Treasurer of each county and charge him therewith. The Treasurer must counter- sign the same and deliver them to the County Auditor, tak- ing his receipt therefor and charge him therewith, giving in the entry the number, classes and amounts thereof. Sec. 1632. The Auditor must furnish printed forms (similar to those furnished by the Controller) for all licenses, the entire proceeds of which are paid into the county treas- ury, and each license must be first numbered by the County Treasurer, and by said Treasurer charged to the Auditor in a book kept for that purpose. Sec. 1633. The County Auditor must affix his official seal to, and sign all licenses, and from time to time deliver them to the Tax Collector in such quantity as may be re- quired; taking his receipt therefor and charge him there- with, giving in the entry the numbers, classes, and amounts thereof. Sec. 1634. The Auditor must keep in his office the stumps of all licenses hy him delivered to the Tax Collector, and a ledger in which he must keep the Collector's account for all licenses delivered to him, sold, or tre turned unsold by him. A correct statement of the Collector's license account must be certified to the County Treasurer each month by the Auditor. Sec. 1635. On the first business day of January, April, July and October, respectively, of each year, or within ten days thereafter, each County Treasurer must report to the Territorial Controller, the number of licenses issued by the Tax Collector or officer charged with the duty of issuing the same, the amount of money paid for the same, and the num- ber and description of licenses on hand, and the Territorial Controller must hold each county treasurer or other county officer responsible for all licenses issued to him under this act, not accounted for or returned at the settlement required by this act to be made on the first Tuesday after the first Monday of January of each year. Sec. 1636. A license must be procured immediately be- fore the commencement of any business or occupation liable to a license tax from the Tax Collector of the county where the applicant desires to transact the same, which license authorizes the party obtaining the same in his town, city or particular locality in the county to transact the business described in such license; separate licenses must be obtained for each branch, establishment or separate house of business located in the same county. No license issued under this chapter authorizes any person to carry on any business within the limits of any incorporated city or town having power by its charter to impose or levy city or town license taxes, unless such person in addition to the license provid- ed by this chapter, also procures the license required by the ordinances or orders of such city or town. Treasurer to report to con- troller. Rev. act, 87. When license to be procured. Rev. act, 84. 228 §§ 1637-1G44 LICENSES. Tit.X. Ch.IX. Sec. 1637. Against any person required to take out a license who fails, neglects or refuses to take out such license, or who carries on, or attempts to carry on, business without such license, the Collector may direct suit in the name of the Territory of Idaho as plaintiff, to be brought for the re- covery of the license tax, and in such case either the Collec- tor or District Attorney may make the necessary affidavit for, and a writ of attachment may issue without any bonds being given on behalf of the plaintiff; and in case of a re- covery by the plaintiff, twenty dollars damages must be in- cluded in the judgment and costs to be collected from the defendant, and when collected five dollars thereof must be paid to the Collector and fifteen dollars to the District At- torney prosecuting the suit. Sec. 1638. Each Tax Collector must make diligent in- quiry as to all persons in his county liable to pay licenses as provided in this chapter, and must require each person to state under oath or affirmation the probable amount of busi- ness which he, or the firm of which he is a member, or for which he is an agent or attorney, or the association or cor- poration of which he is president, secretary or managing agent, will do in the next succeeding three months; and thereupon such person, agent, president, secretary or other officer must procure a license from the tax Collector for the term desired, and the class for which such party is liable to pay; and in all cases where an under-estimate has been made by the party applying, the party making such under- estimate, or the company he represented, are required to pay for a license for the next quarter double the sum other- wise required. Sec. 1639. Upon the trial of any action authorized by this chapter, the defendant is deemed not to have procured the proper license unless he either produces it or proves that he did procure it; but he may plead in bar of the action a recovery against him and the payment by him in a civil action of the proper license tax, together with the damages and costs. Sec. 1640. On the first Monday in each month the Col- lector must return to the Auditor all licenses unsold, and be credited therewith and must, with the Auditor, appear at the Treasurer's office and pay into the county treasury, one-tenth for Territorial and nine-tenths for county purpo- ses, all moneys collected for licenses sold during the preced- ing month, take the Treasurer's receipt therefor, and file duplicates thereof with the Auditor. The Auditor must credit the Collector and charge the Treasurer therewith. Sec, 1641. For each license issued, the Collector must collect a fee of one dollar, which must be equally divided between the Auditor and Collector. Sec. 1642. Every auctioneer must obtain a license from the Tax Collector and must pay therefor ten dollars per month. Sec. 1643. Licenses to take tolls on bridges or ferries are fixed annually by the Commissioners. The licenses therein provided for are issued by the County Auditor, and must be obtained from the Tax Collector of the county. Sec. 1644. Persons, associations, or corporations en- gaged in the occupation of banking, loaning money at inter- 229 Suit against delinquent, damages . Rev. act, 84. Tax collectors, duties of. Rev. act, 84. Proof on trials. Rev. act, 84. Time of making settlements and payment.-.. Rev. act, 82-86. Fees for li- censes. Rev. act, 75. License of auctioneers Rev. act, 7'.i. Bridge or ferry license. Comp. laws, 868. Brokers, trust companies, and others. Rev. act, 78, 79, 80. Tit.X. Ch.IX. LICENSES. ?£ 1645-1646 est, or in buying or selling notes, bonds, or other evidences of indebtedness of private persons, or in buying or selling State, Territorial, county or city stocks, or other evidences of State, Territorial, county, or city indebtedness; or stocks or notes, bonds, or other evidences of indebtedness of incorpor- ated companies. or in buying or selling gold dust, gold or silver bullion, or gold or silver coin, are divided into five classes, and must pay license as follows : 1. Those doing business in the aggregate to the amount of two hundred and fifty thousand dollars per quarter and over, constitute the first class, and must pay a license of one hundred dollars per quarter; 2. Those doing business to the amount of two hundred thousand dollars and less than two hundred and fifty thous- and dollars per quarter, constitute the second class, and must pay a license of eighty dollars per quarter; 3. Those doing business to the amount of one hundred thousand dollars and less than two hundred thousand dol- lars per quarter, constitute the third class, and must pay a license of fifty dollars per quarter; 4. Those doing business to the amount of fifty thousand dollars, and less than one hundred thousand dollars per quarter, constitute the fourth class, and must pay a license of forty dollars per quarter; 5. Those doing business in any amount under fifty thou- sand dollars per quarter, constitute the fifth class, and must pay a license of thirty dollars per quarter. All revenue col- lected under this section may be retained by and for the use Act jan y 12, Q£ ^q county in which it is collected. Licenses, Sec. 1645. Licenses must be obtained for the purposes Redact, 72. hereinafter named, for which the Tax Collector must require 12 ees., i3T' the payment as follows: V))umiaifc^ Kl- From each proprietor or keeper of a billiard, pool or bagatelle table, or any other kind of table on which games %*^4^~vu, } are played with balls and cue, for hire, for each table fifteen / fftf / /piKCV 7~3l dollars per quarter; and for a bowling alley, five dollars per quarter for each alley; but no license must be granted for a term less than three months; Theaters, etc. 2. From the manager or lessee of every theater, three dollars per day, if granted for a less term than one month ; if granted for one month, fifty dollars; and for each exhibition of serenaders, negro minstrels, opera, melodeon perform- ance, or other musical entertainment, dancing or ballet, the same pay for license as is herein provided for a theater license; caravans, etc, ^ jror each exhibition for pay of a caravan or menagerie, or any collection of animals, circus, equestrian or other acrobatic performance, ten dollars; and for each show for pay of any figures, jugglers, necromancers, magicians, wire or rope dancing, or sleight-of-hand exhibition, five dol- lars each day; Pawnbroker. ^ From each pawnbroker fifty dollars per quarter. certain exhi- Sec. 1646. The provisions of sub-division 2 and 3 of the exempted0" last section do not apply to Boise City or to exhibitions or 10 see., 27. entertainments given for the benefit of churches, schools, or other charitable entertainments, by any amateur dramatic association or literary society of the town or district in which such exhibition or entertainment is given. 230 1647-1649 LICENSES. Tit.X. Ch.lX. Banking games at cards. 13 ses., 161. Merchants' and keepers of livery stables license. Sec. 1647. Persons who keep or run, or in whose saloon, house, or place of of business is kept or run any faro, monte or twenty-one game or any other banking game or games at cards, dice, or other device, must pay a license of fifty dol- lars per quarter, or any less time, for each and every such game; but no person can have a license for French or three carde monte, E. O. or roulette, or for any percentage game, or the game commonly called the thimble game, or for any game declared unlawful by the laws of this Territory. All moneys received for licenses under this sec- tion must be paid into the county treasury for the county school fund. Sec. 1648. Every person who sells spirituous, malt, or J®*jjJ liquor fermented liquors or wine, in less quantities than one quart, Rev? act, 75. must obtain a license from the Tax Collector as prescribed in this chapter, and pay therefor fifty dollars per quarter; Provided, That within the corporate limits of Boise City, in Ada County, such license shall be twenty-five dollars per quarter; and Provided further, That all persons engaged in retailing liquors in connection with the entertainment of travelers, at any point distant one mile or more outside the limits of any city or town, shall pay a quarterly license of fifteen dollars. Sec. 1649. Every person who, at a fixed place of busi- ness, sells any goods, wares or merchandise, wines or dis- tilled liquors, drugs or medicines, jewelry or wares of pre- cious metals, whether on commission or otherwise, (except the agricultural productions of the Territory when sold by the producer thereof, and except such as are sold by auction- eers at public sale under license,) and all persons who keep horses or carriages for hire, or run omnibuses, coaches, cabs or hacks for hire or transportation, (except such as are used in the transportation of goods, and except stages transport- ing United States mail,) must obtain from the Tax Collector of the county in which the business is transacted and for each branch of such business, a license, and pay quarterly therefor an amount of money to be determined by the class in which such person is placed by the Tax Collector; such business to be classified and regulated by the amount of the average monthly sales made or hiring done, and at the rates following: 1. Those who are estimated to make average monthly sales or hiring to the amount of twenty thousand dollars or more, constitute the first class and must pay twenty-five dollars per month; 2. Of ten thousand dollars and less than twenty thousand dollars, constitute the second class, and must pay twenty dollars per month; 3. Of five thousand dollars and less than ten thousand dollars, constitute the third class and must pay fifteen dol- lars per month; 4. Of two thousand five hundred dollars and less than five thousand dollars, constitute the fourth class and must pay ten dollars per month; 5. Of one thousand dollars and less than two thousand nye hundred dollars, constitute the fifth class and must pay sight dollars per month; ,;- Of five hundred dollars and less than one thousand 231 Tit. X. Ch. IX. LICENSES. §§ 1650-16 g Exception in using liquors. 11 ses., 234. Pedlers'and hawkers' license. Rev. act, 73. dollars, constitute the sixth class and must pay six dollars per month; 7. Of three hundred dollars and less than five hundred dollars, constitute the seventh class and must pay four dol- lars per month; 8. Of two hundred dollars and less than three hundred dollars constitute the eighth class and must pay three dollars per month ; (.». Of one hundred dollars and less than two hundred dol- lars, constitute the ninth class, and must pay two dollars per month; 10. Of all amounts under one hundred dollars, constitute the tenth class, and must pay one dollar per month. Sec. 1650. The sale of liquors and wines by persons licensed under the preceding section, must not be in less quantity than one quart measure. No license must be re- quired of physicians, surgeons, apothecaries, or chemists for any wines or spirituous liquors they may use in the prepara- tion of medicines or sell for medicinal or medical purposes. Sec. 1651. Every traveling merchant, hawker, or ped- dler, who carries a pack and vends goods, wares, or mer- chandise of any kind other than the manufactures or pro- ductions of this Territory, must pay for a license ten dollars per month; and every such traveling merchant, hawker or peddler, who uses a wagon, boat or other water craft, or one or more animals, for the purpose of vending such goods, wares, or merchandise of any kind, must pay for a license twenty dollars per month. Sec. 1652. Every person required by this chapter to obtain a license, where the amount or class of license is regulated by the amount or average amount of monthly or quarterly business or sales, must before any such license is issued to him, take and subscribe an affidavit before the Tax Collector or other officer issuing such license, stating the total amount of business done or sales made by him, or the firm or company of which he is a member, or for which he desires a license, during the last preceding quar- ter, and such affidavit must be preserved in the office of the License Collector, and if such amount is greater than the amount for which such person, firm, or company procured a license for such preceding quarter, such person, firm, or company must pay for and procure a license for such pre- ceding quarter according to his or their actual business or sales in addition to the license theretofore procured, before such person, firm or company can receive any license for the current or succeeding quarter; but this section does not relieve any person, firm or company from the penalties im- posed by any other provision of law; and if any person in making such affidavit willfully swears falsely, he is liable to the pains and penalties of perjury. Additional license, when required. 11 ses., 234. 232 |§ 1670-1673 SETTLEMENTS WITH THE CONTROLLER. Tit X. Ch.X CHAPTER X. Settlements with the Controller and Payments into the Territorial Treasury. 1671. 1672. 1673. 1671. 1675. 1676. 1677. 1678. Section 1670. Compensation of county officers for collecting Territorial revenue. Controller's statement, to contain what. County Treasurer to file Controller's statement with Auditor. Auditor to make certain entries. Controller may examine books of any revenue officer. When revenue officer has been guilty of defrauding, etc., District Attorney to prosecute. Other counsel may be employed; expenses, how paid. 16 SO. 1681. 1682. 1683. 1681. 1685. Section 1670. County Treasurers to settle with Controller upon his order. Time when certain Treasurers shall make settlement. Settlement of Treasurer. Allowance to be certified to. Treasurers neglecting to settle ; pen- alty. Settlement of County Auditors with Controller. Auditor to transmit report to Con- troller by mail. Failure of Auditor to make report ; penalty. Controller to deduct fees, and mile- age, etc., on settlement. Section 1670. The Treasurers of the respective counties must at any time, upon the order of the Controller and Treasurer of the Territory, settle with the Controller, and pay over to the Treasurer all moneys in their possession be- longing to the Territory. Sec. 1671. The Treasurers of the several counties re- spectively, must, between the first and fifteenth days of January, April, July, and October of each year, make out and transmit by mail, express, or other safe conveyance, a statement to the Territorial Controller and Treasurer, and settle in full with the Territorial Controller, and pay over in cash to the Territorial Treasurer all funds which have come into their hands as County Treasurers before the close of business at the end of the previous month, and belonging to the Territory. Sec. 1672. And each county treasurer must at the time of making his settlement with the Controller, produce to him statements of transactions had in Territorial and county licenses and poll tax receipts since the last settlement; which statement must be made by the County Auditor according to the forms which are furnished by the Ter- ritorial Controller for that purpose, and each county treas- urer must at the same time produce to the controller the cer- tified statement of the County Auditor of the amount allow- ed and paid to the assessor, tax-collector and auditor as pre- scribed by this Title; and no county treasurer is allowed to make any settlement with the Controller or in any manner to release himself and bondsmen from liability for the full amount of money by him received, unless he produces to the Controller the statement required by this section. Sec. 1673. Whenever any allowance is made to any Assessor, Tax Collector or Auditor, as in this act provided, the Clerk of the Board of Commissioners must certify to the amount so allowed to the Auditor, who shall draw his warrant on the County Treasurer for that part of the same which the county is required to pay, which must be in pro- portion to the amount of the taxes levied for Territorial and county purposes respectively; and the Auditor must make a certified copy of the account and endorse thereon the amount due from the Territory, and endorse on the account remaining in his office the same, and must furnish such copy 233 County treas- urers to settle with controller upon his order. Rev. act, 93. Time when treasurers must make settle- ments. Rev. act, 93. Settlement of treasurer. Rev. act, 94. Allowances to be certified to. Rev- act, 95. Tit. X. Ch. X SETTLEMENTS WITH THE CONTROLLER. §§ 1674-1681 Treasurers neglecting to settle, penalty. Rev. act, 93. Settlement of auditors with controller. Rev. act, 93. Auditor to transmit report to controller. Rev. act, 93. Failure of auditor to make report, penalty. N. S. Controller to deduct fees, etc., on settle- ment. Rev. act, 93. Compensation of county officers for col- lecting Terri- torial revenue. 9 ses., 15. Controller '8 statement, what to contain. N.S. Treasurer to file controller's statement with auditor. N. S. with the endorsement thereon to the County Treasurer, who must pay out of the money belonging to the Territory the amount endorsed on such account, to the Assessor, Tax Col- lector or Auditor, and take his receipt thereon; and the Treasurer on making his quarterly settlement must present with the Auditor's statement, such copy of the account al- lowed by the Board to the Assessor, Tax Collector or Audi- tor endorsed and receipted as herein provided, and the Ter- ritorial Controller must allow him for the amount so paid. Sec. 1674. Every County Treasurer who neglects or re- fuses to transmit such statement to the Controller and Treas- urer at the times specified in this chapter, and to settle and make payment as required by this chapter, forfeits all fees and percentage which would have otherwise been due him from the Territory and is liable on his official bond. Sec. 1675. The Auditor of each county, between the first and fifteenth day of each month in which the Treas- urer of his county is required to settle with the Controller, must make in duplicate and verify by his affidavit a report to the Controller, showing specifically the amount due the Territory from each particular source of revenue at the close of business on the last day of the preceding month. Sec. 1676. The Auditor must at once transmit by mail or express to the Controller one copy of the report, and must deliver the other copy to the Treasurer of his county. Sec. 1677. Every Auditor who fails to make and trans- mit the report required by this chapter, or any report or statement required by this Title, forfeits all compensation which would be otherwise due him from the Territory, and is liable on his official bond. Sec. 1678. In the settlement the Controller must deduct the commissions allowed to the County Treasurer for his services, and any other amount due the county or the offi- cers thereof; and the Territorial Treasurer may pay out of the Territorial treasury the necessary expense of the trans- mission of Territorial moneys from the respective County Treasurers to the Territorial treasury. Sec. 1679. The compensation for the services of Audit- ors, Assessors, and Tax Collectors, and County Treasurers respectively, for the duties performed by them in asessing, collecting, receiving, and paying over Territorial taxes or the Territorial portion or any taxes are as follows: To the Assessor and Tax Collector, as full compensation for his services and the services of his deputies, seven (7) per centum of the amount by him paid over; to the County Treasurer and Auditor, each three (3) per centum of the amount paid over by the Treasurer. Sec. 1 680. The "Controller must, after the Treasurer has made settlement and payment, enter upon each copy of the Auditor's report a statement showing: 1. The amount of money by the County Treasurer paid into the treasury of the Territory; 2. The amount deducted for commissions and other allowances; and must then return one copy of the report to the County Treasurer. Sec. 1681. The County Treasurer must file with the Auditor of his county the copy returned to him by the Con- troller. 234 §§ 1682-1706 MISCELLANEOUS PRO VISIONS. Tit.X. Ch.XI Sec. 1682. The Auditor must then make the proper en- tries in his account with the Treasurer. Sec. 1683. The Controller may examine the books of any officer charged with the collection and receipt of Terri- torial taxes. Sec. 1 684. If he believes any officer has been guity of de- frauding the Territory of revenue, or has neglected or refused to perform any duty relating to the revenue, he must direct the District Attorney or other counsel to prosecute the de- linquent. Sec. 1685. The Controller or Attorney General may employ other counsel than the District Attorney, and the expenses must be paid out of the Territorial treasury. Auditor to make entries. N. S. Controller may examine books. Officer guilty of defrauding, prosecution of. Other counsel may be em- ployed, expenses, how paid. CHAPTER XI. Miscellaneous Provisions. Section 1700. Omissions, errors, defects in form of assessment books, when may be corrected. 1701. Omissions, etc. in delinquent lists, how corrected. 1702. Publication of corrected delinquent lists, etc. 1703. Initial letters, abbreviations, and figures may be used in certain cases. 1704. No assessment illegal on account of informality. . Section 1705. Fines, forfeitures, penalties, etc., paid into county treasury. Revenue officers suspended and re- moved. Taxes payable only in lawful money. Annual settlements of certain offi- cers with Auditor. Officers to perform only the duties pertaining to their own offices . Saving clause. Books to be open for inspection. 1706. i707. 1708. 1709. 1710. 1711. Section 1700. Omissions, errors or defect in form in any assessment book, when it can be ascertained therefrom what was intended, may be supplied or corrected by the As- sessor at any time prior to the delinquent sale and after the original assessment was made. Sec. 1701. When the omission, error or defect has been carried into a delinquent list or any publication, the list or publication may be republished as amended, or notice of the correction may be given in a supplementary publication. Sec. 1702. The publication must be made in the same manner as the original publication, and for not less than one week. Sec. 1703. In the assessment of land, advertisement and sale thereof for taxes, initial letters, abbreviations and figures may be used to designate the township, range, sec- tion or parts of section, lot or block. Sec. 1704. No assessment, or act relating to assessment, or collection of taxes is illegal on account of informality, nor because the same was not completed within the time re- quired by law. Sec. 1705. The fines, forfeitures and penalties incurred by a violation of any of the provisions of this Title, must be paid into the treasury for the use of the School Fund of the county where the person, against whom the recovery is had, resides. ^ Sec. 1706. Whenever any Assessor, Collector, Auditor, Treasurer, or any other officer upon whom any duties de- volve under this act, or under any other revenue act of this Territory, willfully neglects or refuses to perform any such duties, or performs them in a careless or incompetent man- ner, he may be removed from office in the manner prescribed 235 Errors, etc., in assessment book, when may be corrected. lOses., 11. Omissions, etc., in delinquent list, how cor- rected. Uses., 236. Publication of corrected de- linquent list. 11 ses., 230. Initial letters, abbreviations, etc., when may be used. 11 ses., 236. No assessment illegal on ac- count of infor- mality. 10 ses., 11. Fines, etc., paid into county treasury. Revenue officers suspended and removed. Rev. act, 97. Tlt.X. Ch.XT. MISCELLANEOUS PROVISIONS. §§ 1707-1711 Taxes payable iu lawful inoney. Annual settle- ments of cer- tain officers with auditor. Kev. act, 98. Officers to per- forin only the duties pertain- ing to their office. Rev. act, 99. Saving clause. Books to be open for inspection. Kev. act, 51 by law, and when proceedings are commenced to remove such officer from his office, the Board of' Commissioners, (and in case such officer be a Commissioner, then the Pro- bate Judge) may suspend such Assessor, Collector, Auditor, Treasurer, or other officer from his powers and duties un- der this act, and under any other revenue act, >and appoint a competent person in his place, until the proper tribunal has either removed or acquitted such suspended officer; and any act concerning the revenue or assessment, or the collec- tion of taxes or sale of property for the non-payment of taxes, performed by any such temporary officer, is as valid and of the same force and effect as if performed by the sus- pended officer; Provided, That such appointee has first qual- ified and given such bond with sureties for the faithful per- formance of the duties of his office as required of persons elected thereto. Sec. 1707. Taxes must be paid in lawful money of the United States. Sec. 1708. Every Assessor and Tax Collector, District Attorney and County Treasurer must annually, on the first Tuesday after the first Monday of January, make a settle- ment with the County Auditor of all transactions connected with the revenue for the previous year. Sec. 1709. The Treasurer, Tax Collector, Assessor, Clerk of the Board of Equalization, and each member of the Board must separately perform the duties required of him in his office, and must not, except in the cases provided by law, ; perform the duties required of any other officer under this Title. Sec. 1710. All taxes assessed before this Code takes ef- fect must be collected under the laws in force at the time the assessment was made, and in the same manner as if this Code had not been passed. Sec. 1711. The books, papers, and accounts of each of- ficer relating to the assessment or collection of taxes, or to the receiving, auditing or disbursing moneys collected for the use or benefit of the Territory, or of any county, must at all times during office hours, when not necessarily in use by the officers, be open for any person whomsoever to in- spect or copy without any fee or charge. 236 §§ 1730-1735 COUNTIES AS BODIES CORPORATE- Tit XL Ch. I. TITLE XI. THE GOVERNMENT OF COUNTIES. CHAPTER I. Counties as Bodies Corporate. Section 1730. Every county a body corporate. 1731 . Powers, how exercised. 1732. Name and designation. 1733. Enumeration of powers. Section 1734. Limitation on powers; loaning credit. 1735 . Payment of judgment against coun- ties. Section 1730. Every county is a body politic and cor- porate, and as such has the powers specified in this Title or in other statutes, and such powers as are necessarily implied from those expressed. Sec. 1731. Its powers can only be exercised by the Board of County Commissioners, or by agents and officers acting under their authority, or authority of law. Sec. 1732. The name of a county designated in the law creating it is its corporate name, and it must be known and designated thereby in all actions and proceedings touching its corporate rights, property, and duties. Sec. 1733. It has power: 1. To sue and be sued; 2. To purchase and hold lands within its limits; 3. To make such contracts and purchase and hold such personal property as may be necessary to the exercise of its powers ; 4. To make such orders for the disposition or use of its property as the interests of its inhabitants require; 5. To levy and collect such taxes for purposes under its exclusive jurisdiction as are authorized by law. Sec. 1 734. No county must in any manner loan or give its credit to or in aid of any person, association, or corpora- tion unless it is expressly authorized by law so to do. Sec. 1735. Upon presentation to the Board of County Commissioners of a final judgment for money or damages, duly certified, against their county, the Board must allow the same and direct its payment as other claims against the county are paid. 237 Every county a body corpor- ate Comp. laws, p. 754. Powers, how exercised. Comp. laws, p. 520. Name and designation. Enumeration of powers. Comp. laws, p. 754. Limitation on powers. N. S. Payment of judgment against coun- ties. Comp. laws, p. 754. Tit. XL Ch. 11. THE BOARD OF COUNTY COMMISSIONERS. £§ 1745-1749 CHAPTER II. The Board of County Commissioners. Board, number to compose. Comp. laws, p. 520. Qualifications. 13 8es., 85. Term of office. Comp. laws, p. 521. .County, dis- 5 A (S13 •. laws, p. 852. Sec. 1755. The regular meetings of the Boards of Com- missioners must be held at their respective county seats on the second Mondays in January, April, July, and October of each year, and must continue from time to time until all the business before them is disposed of. Such other meet- ings must be held, to canvass election returns, equalize tax- ation, and other purposes, as are prescribed by law or pro- vided for by the Board. Sec. 1756. Adjourned meetings may be provided for, fixed, and held for the transaction of business by an order duly entered of record, in which must be specified the char- acter of business to be transacted at such meetings, and none other than that specified must be transacted. Sec. 1757. If at any time after the adjournment of a regular meeting the business of the county requires a meet- ing of the Board, a special meeting may be ordered by a majority of the Board. The order must be entered of record, and five days notice thereof must, by the Clerk, be given to each member not joining in the order. The order must specify the business to be transacted and none other than that specified must be transacted at such special meeting. Sec. 1758. All meetings of the Board must be public, and the books, records, and accounts must be kept at the office of the Clerk, open at all times for public inspection, free of charge. The Clerk of the Board must give five days public notice of all special or adjourned meetings, stating the business to be transacted by posting three notices in conspicuous places, one of which shall be at the Court House door. , Sec. 1759. The Boards of Commissioners in their re- spective counties, have jurisdiction and power, under such limitations and restrictions as are prescribed by law. 1. To supervise the official conduct of all county officers, and officers of all districts and other sub-divisions of the county charged with assessing, collecting, safe keeping, management, or disbursement of the public moneys and revenues; see that they faithfully perform their duties; di- rect prosecution for delinquencies; approve the official bonds of county and precinct officers, and when necessary, require them to renew their official bonds, to make reports, and to present their books and accounts for inspection; 2. To divide the counties into precincts, school, road and other districts required by laiv, change the same and create others, as convenience requires; 3. To establish, abolish, and change election precincts, and to appoint Judges of Elections, canvass all election re- turns, declare the result, and issue certificates thereof; 4. To lay out, maintain, control, and manage public roads, turnpikes, ferries, and bridges within the county, and levy such tax therefor as authorized by law; 5. To provide for the care and maintenance of the indi- gent sick, or the otherwise dependent poor of the county; erect, officer, and maintain hospitals therefor, or otherwise provide for the same ; and to levy the necessary tax therefor, per capita, not exceeding two dollars, and an ad valorem tax not exceeding one-fourth of one per cent, or either of such 240 1759 THE BOARD OF COUNTY COMMISSIONERS. Tit. XL CI i. II. To provide county farm . Acquire prop- erty for the county. May sell county property . levies, when both are not required, on all persons subject to poll tax in the county and taxable property of the county; 6. To provide a farm in connection with the county hos- pital, and make regulations for working the same, or for the maintenance of the inmates under a lease of the same; 7. To purchase, receive by donation, or lease any real or personal property necessary for the use of the county; pre- serve, take care of, manage, and control the county prop- erty, but no purchase of real property must be made unless the value of the same has been previously estimated by three disinterested citizens of the county, appointed by them for that purpose, and no more than the appraised value must be paid therefor: 8. To sell at public auction at the court house door, af- ter thirty days previous notice given by publication in a newspaper of the county, or posted in five public places of the county, and convey to the highest bidder, for cash, any property, real or personal, belonging to the county, not nec- essary for its use, paying the proceeds into the County Treasury for the use of the county; 0. To examine and audit the accounts of all officers hav- ing the care, management, collection, or disbursement of moneys, belonging to the county, or appropriated by law, or otherwise, for its use and benefit; 10. To examine, settle, and allow all accounts legally chargeable against the county, and order warrants to be drawn on the County Treasurer therefor, and provide for the issuing of the same; 11. To levy such tax annually on the taxable property of the county as may be necessary to defray the current ex- penses thereof, including salaries otherwise unprovided for, not exceeding the amount authorized by law; and to levy such taxes as are required to be levied by special or local statutes ; 12. To equalize the assessments; 13. To direct and control the prosecution and defense of all suits to which the county is a party in interest, and em- ploy counsel to conduct the same, with or without the Dis- trict Attorney, as they may direct; 14. To insure the county buildings in the name of and for the benefit of the county; 15. To grant licenses and franchises, as provided by law, for constructing, keeping, and taking tolls on roads, bridges and ferries, and fiiL the tolls and licenses; 16. To fix the compensation^ of all county officers not otherwise by general or special tsxfixed, and provide for the payment of the same; 17. To fill by appointment all vacancies that may occur in county or precinct officers; 18. To contract for the county printing, and provide books and stationery for county officers; 19. At the adjournment of each session of the Board to cause to be published in a newspaper or otherwise a fair statement of all their proceedings, and semi-annually a state- ment of the financial condition of the county; 20. To make and enforce such rules and regulations for the government of their body, the preservation of order and the transaction of business as may be necessary; 16 241 " Audit accounts of officers. Allow accounts. Levy tax for current ex- penses. Board of equalization. To direct legal proceedings. Iusuring property. Granting' franchises. Compensation of officers. To fill vacancies. Printing. To publish pro- ceedings. May make rules for board. Tit. XL Ch. TT. THE BOARD OF COUNTY COMMISSIONERS. §§ 1760-1760C May provide eeal. May do other acts required or necessary. Destruction of wild animals. ^r Bounty. Tax to pay •bounty. Proof required. Scalps. Surplus trans- ferred to gen- eral fund. 21. To adopt a seal for their Board; 22. To do and. perform all other acts and things required by law not in this Title enumerated, or which may be neces- sary to the full discharge of the duties of the chief executive authority of the county government; Sec. 1760. (Sec. 1.) The Board of County Commis- sioners of each county in Idaho Territory, may, and upon petition of not less than one-tenth of the qualified voters who are tax payers of the county, shall fix and determine the bounty to be paid in the county for the destruction of each coyote, squirrel, wild cat, fox, lynx, bear, rabbit, pan- ther, cougar, lion, badger and nondescript, and to prescribe rules for making proof of such destruction and obtaining such bounty, Provided, That in no case shall the bounty for rabbits or squirrels be less than three cents nor more than five cents for each animal destroyed. Sec. 1760«. (Sec. 2.) In order to pay bounties provid- ed for in section 1 of this act, the Board of County Commis- sioners of any county in which a bounty for any or all the animals in section 1 has been offered, are hereby authorized and required to levy and cause to be collected a special tax of not more than one-half of one per cent on all taxable property in said county. Said levy shall be made at the same time that other taxes are levied, and collected as other taxes are collected, and when so collected shall be paid into the county treasury and then become a special fund to be known as the scalp fund. Sec. 17606. -(Sec. 3.) Any person desirous of obtaining any bounty offered for the destruction of any animals men- tioned in section 1, shall present to the Board of County Commissioners a verified statement showing the number and kind of animals destroyed by the person seeking the bounty and that the animals destroyed by him were killed in the county in which application for bounty is made. And such person shall also be required to furnish to the Board of County Commissioners the scalps or ears of the animals de- stroyed, Provided, Any party residing over ten miles from the county seat may make affidavit before any one author- ized to administer oaths in said county, and said Commis- sioners shall allow such claim when accompanied with the scalp from said animals. Said scalps and ears shall be im- mediately destroyed in the presence of the County Commis- sioners. Sec. 1760c. (Sec. 4.) The County Commissioners of any county in which a scalp fund shall have been established, may at the end of any quarter when there is a deficiency in the current expense fund of said county and a surplus in the scalp fund in excess of one hundred dollars, transfer all of such surplus exceeding one hundred dollars to the current expense fund, after all the warrants previously drawn on such scalp fund shall have been paid, and whenever there shall occur a deficiency in the scalp fund the Treasurer shall transfer from the current expense fund to the scalp fund a sufficient amount of money to supply the deficiency if not in excess of the amount previously transferred to the said current expense fund, and at the time due the scalp fund. | Act Jan. 22, 1887, in effect immediately.] 242 §§1761-1762 THE BOARD OF COUNTY COMMISSIONERS. Tit. XL Ch. II. Sec. 1761. The Board must cause to be erected or fur- Courthouse, nished, a court house, jail and such other public buildings uses., 248. as may be necessary; and must, when necessary, provide offices with necessary furniture for the Sheriff, the County offices for Recorder and Auditor, Clerk of the District Court, County couuty officers- Treasurer, District Attorney and Probate Judge, and must draw warrants in payment of the same; Provided, That the contract for the erection of, any such building must be let after thirty days' notice for proposals to the lowest bidder, contracts. who will give security for the completion of any contract he may make respecting the same: and, Provided further, No contract must be let under the provisions of this section when the expenses thereunder will exceed one thousand dol- lars. The Board must also provide all necessary books of record for the County Recorder and Auditor, County Treas- urer, County Assessor and Collector, Clerk of the District fe°o^oi: Court, Probate Court and the Board, and stationery for the stationery. use of the Board and so much a& is necessary for the use of said county officers in the transaction of official business for which no fee is provided by law. Sec. 1762. When a petition signed by at least one-third Taxpayers may of the tax payers who are qualified voters of any county, is buiidings°r new presented to the Board at any regular meeting, asking that comp^iaws, a court house, jail, or other public buildings or improve- ' ments be built for the use and benefit of the county, the cost of which will exceed one thousand dollars, the Board must not act upon the said petition until the next regular meeting; and at least for four weeks before the next meeting, the Clerk of the Board must give notice by publication in a newspaper or otherwise, as ordered by the Board, of pre- sentation of said petition, and the nature and cost of said buildings, or improvements contemplated, and that the peti- tion will be acted upon by the Board, at their next regular meeting. If they deem the interest of the county demands it, the Board must order the said improvements or buildings to be made or erected, and must thereupon advertise for sealed proposals for making said improvements or erecting said buildings. Such notice for sealed proposals must be given by the Clerk, in a newspaper or otherwise, as ordered by the Board, for at least thirty days, and must con- tain explicit specifications of the improvements or buildings to be made or erected, and state the day when said proposals will be opened. Proposals may be received until the open- ing of the session on the day they are to be opened, and they must be opened and considered publicly, and the con- tract let to the lowest responsible bidder, unless they all be rejected, which the Board shall have power to do if they are too high; and the Board may proceed to advertise again or let the same by private contract, provided it be for a less sum than that proposed by the lowest bidder. The person or persons awarded the contract must give a good and suffi- cient bond to be approved by the Commissioners for the completion of the contract according to the specifications. The building or improvements may be paid for by warrants upon the proper fund, or by the levying of a special tax, not exceeding fifty cents on each one hundred dollars of assess- able property, to be paid into a special fund for that purpose; againsl which warrants may be drawn in pavmentfor build- 243 Tit. XI. Ch. II. THE BOARD OF COUNTY COMMISSIONERS. §§ 1763-17G9 Provide appli- ances for hold- ing elections. 13 ses., lU'J. Certificates issued as board of canvassers. Comp. laws, p. 524. Appointments made on peti- tion. N. S. List of claims allowed to be furnished board and county treas- urer. Board must not divert money from one fund to another. Comp. laws, 528. May transfer inoperative fund. 14 ses. Power to re- quire attendance of witnesses. N. B. Examination of witnesses. N. S. ings or other improvements constructed or made under the provisions of this section. Sec. 1763. The Board must provide all poll lists, poll books, blank returns and certificates, proclamatjpn^ojf jelec- tion and other appropriate and necessary appte£^e& for holding all elections in the county, and allow reasonable charges therefor, and for the transmission and return of the same to the proper officers. Sec. 1764. Whenever, as -canvassers, the Board of Commissioners have declared the result of an election held in the county, certificates must be by their Clerk issued to all persons elected to a county office, or to a precinct or dis- trict office therein, and such other certificates must be made out and transmitted as required by the Title relative to "Elections." Sec. 1765. No appointment to fill a vacancy in office must be made by the Board except upon petition, signed by at least thirty qualified electors of the county, if for a county office, or by not less than fifteen of the qualified electors of the precinct, or district, if for a precinct or district office. Sec. 1766. The Board must require their Clerk at the close of every session to furnish them with a list of all bills and accounts of every nature, approved by them at said ses- sion giving the name of each person in whose favor an ac- count or bill of any kind or nature has been allowed, with the amount allowed him and out of what fund the same is to be paid. They must compare their list with the record of their proceedings, and if not found correct, make it so and certify to said list and file it with the County Treasurer, and the Treasurer must pay no warrant drawn on any fund in the county treasury that does not correspond with the files furnished him by the Board. Sec. 1767. The Board must not transfer any money from one fund to another, nor in any manner divert the money in any fund to other uses except in cases expresshr provided and permitted by law, nor make any preferred creditor, nor cause any warrant to be drawn payable out of its order ex- cept on the order of the district court in cases provided by law, and the County Treasurer must, in all things observe these instructions; Provided, That when any money shall have been assessed and collected in any of the counties of this Territory, and the same set apart as a separate fund, for a special purpose, and from any cause the money in said fund shall have become inoperative for the purpose for which said fund was created, it shall be lawful for the Board of County Commissioners, in such cases to transfer the money in said fund to such fund as the Board of County Commissioners may deem best. [Act Jan. 29, 1887.] Sec. 1768. The Board may, by their Chairman, or the Chairman of any committee, issue subpoenas to compel the attendance of any person and the production of any books or papers relating to the affairs of the county, for the pur- pose of examination upon any matter within their juris- diction. Sec. 1769. A witness is bound to attend, when served, and to answer all questions which he would be bound to an- swer in th<> same case before a court of justice. Obedience 244 Sg 1770-1775 THE BOARD OF COUNTY COMMISSIONERS. Tit. XL Ch.Il. Officers and witnesses not to be prepaid. When board must not allow claims or con- tract debts. Comp. iaws, p. 527. I to the subpoena, or to an order to attend, or to testify, may be enforced by the Board, and for that purpose the Board has all the powers conferred by. and the witness is subject to all the provisions of the Code of Civil Procedure. Sec. 1770. Neither the officers serving- subpoenas nor the witnesses subpoenaed to testify in relation to matters of public concern before the Board of Commissioners, are entitled to have their fees prepaid, but officers must serve the sub- poenas and witnesses must attend without their fees being prepaid. The Board may allow them reasonable compensa- tion for services and attendance. Sec. 1771. The Board must not for any purpose con- tract debts or liabilities, except in pursuance of law. They must not allow any account, or cause or permit any warrant to be issued to any county or precinct officer entrusted with the collection, safe keeping or disbursement, of the public funds, who has failed to make any statement or settlement of his accounts, as required by law, or who has failed to ac- count for and pay over the public funds received by him when, and as required by law, or who is in any way a delin- quent or defaulter in his trust, nor _ to any delinquent tax payer. They must not allow any account, or cause or per- mit any warrant to be drawn in favor of any person who is liable, either as principal or surety, upon any official or other bond, cognizable by the Board after a breach of such bond, or upon any recognizance in a criminal action, or proceed- ing in the county after the forfeiture of such recognizance. They must not allow any account or claim for services to a deputy of any officer, or cause or permit any warrant to be drawn therefor, except to and through, and in the name of his principal. They must not provide any stationery for any officer, to be used for any purpose or act for which such of- ficer is allowed a fee by law. They must not allow any ac- count or claim of any officer while he neglects or refuses to perform any duty required of him bv law. [Act Feb. 3. 1887.] Sec. 1772. No county officer must, except for his own services, present any claim, account or demand for allow- ance against the county, or in any way advocate the relief asked on the claim or demand made by another. Any citi- zen and tax payer of the county in which he resides may appear before the Board and oppose the allowance of any claim or demand made against the county. Sec. 1773. The Board of Commissioners must not hear or consider any claim in favor of an individual against the county unless an account properly made out, giving all items of the claim, duly verified as to its correctness, and that the amount claimed is justly due, is presented to the Board within a year after the last item of the account ac- crued. Sec. 1774. No account must be necessarily passed upon by the Board unless made out as prescribed in the preceding section and filed by the Clerk at least one day prior to the session at which it is asked to be heard. Sec. 1775. When the Board finds that any claim pre- sented is not payable by the county or is not a proper coun- ty charge, it must be rejected; if they find it to be a proper county charge, but greater in amount than is justly due, the 245 14 ses. County officer not to present certain claims against county, Comp. laws, p. 52S. Account, how made and pros- ecuted. Comp. laws, p. 528. Account must be filed prior to session. Comp. laws, p. 528. Claims to be rejected, proceedings on part allowance Comp. laws, 527-523. Tit XL Ch.IL THE BOARD OF COUNTY COMMISSIONERS. §§ 1776-1782 Appeals from actions of the board. Corop. laws, 529. Appeal, how taken. Conip. laws, 529. Undertaking. Papers trans- mitted to dis- trict court. Conip. laws, 529. Hearing and decision on appeal. Comp. laws, 529. Claimant may sue, when, recover costs, when. N. S. What waraants may specify, how presented. Comp. laws, 575. In what trans- actions commis- sioners not to be interested. Comp. laws, 528. Board may allow the claim in part and draw a .warrant for the portion allowed, on the claimant filing a receipt in full for his account. If the claimant is unwilling to receive such amount in full payment, the claim maybe again be consider- ed at the next regular succeeding session of the Board, but not afterwards. Sec. 1776. An appeal may be taken from any order, decision or action of the Board while acting in an official capacity, by any person aggrieved thereby, or by any tax payer of the county wTher$ any demand is allowed against the county, or when he deems any order, decision or action of the Board illegal or prejudicial to the public interests. Sec. 1777. The appeal may be taken by filing wTith the Clerk of the Board within twenty days after the order or decision is made, or the action is taken, a written notice of such appeal and serving a copy thereof upon any person having a beneficial interest, or upon any one of two or more having a joint beneficial interest in such order, decision or action, and filing with the Clerk of the Board an undertak- ing in the sum of three hundred dollars for the payment of costs, with two sufficient sureties, to be approved by said Clerk or the Probate Judge, verified and conditioned as pro- vided in the Code of Civil Procedure for undertaking on ap- peal; but no undertaking must be required when the Dis- trict Attorney or the Probate Judge appears in behalf of the county. Sec. 1778. The Clerk of the Board omreceiving the no- tice and undertaking, when an undertaking is required, must certify to the District Court a transcript of the record show- ing the order, decision or action of the Board appealed from, and therewith transmit the notice of appeal, undertaking, and any account, bill, contract or paper presented to the Board in connection with the subject matter of the appeal. Sec. 1779. On the appeal the matter must be heard anew, and the Court may affirm, reverse or modify the or- der, decision, or action appealed from, with or without costs. Sec. 1780. A claimant dissatisfied with the rejection of his claim or demand, or with the amount allowed him on his account, may sue the county therefor at any time wTithin six months after the final action of the Board, but not after- ward; and if in such action judgment is recovered for more than the Board allowed, on presentation of the judgment the Board must allow and pay the same, together with the costs adjudged; but if no more is recovered than the Board allowed, the Board must pay the claimant no more than was originally allowed. Sec. 1781. Warrants drawn by order of the Commis- sioners on the County Treasury for the current expenses during each year, must specify the liability for which they are drawn, and wThen they accrued, and must be paid in the order of presentation to the Treasurer. If the fund is insuf- ficient to pay any warrant, it must be registered, and there- after paid in the order of its registration. Sec. 1782. No member of the Board must be interested, directly or indirectly, in any property purchased for the use of the county, nor in any purchase or sale of property be- longing to the county, nor in any contract made by the 21G §g 1783 1788 THE BOARD OF COUNTY COMMISSIONERS. Tit. XL Ch.ll, Board or other person on behalf of the county, for the erec- tion of public buildings, the opening or improvement of roads, or the building of bridges, or for other purposes. Sec. 1783. Whenever an application is made to the Transfer of "°^rd for an ^wi-- ^apchise, or license, relating to any toll w^fat^ases' m Tit. XL Ch.IL THE BOAKD OF COUNTY COMMISSIONERS. §§ 177G-1782 Board may allow the claim in part and draw a warrant for the portion allowed, on the claimant filing a receipt in full for his account. If the claimant is unwilling to receive such amount in full payment, the claim maybe again be consider- ed at the next regular succeeding session ^ +>«> Board, Iv Apr boa* NO. 815. Cod STATE OF IDAHO, Plaintiff, vs. Am JIM JONES, Defendant. Con 529 ATTORNEYS Kenneth S. Mackenzie, for Plaintiff. Geo. W. Edgington, for Defendant. Unci Pap» mitt \ trict Com 529. No. 816. STATE OF IDAHO, Plaintiff, Heai VS. decii g£f LOUIS BREWER, Defendant. 529. ATTORNEYS Claii 8ue' Kenneth S. Mackenzie, for Plaintiff. reco ' whei NS- For Defendant. Whai may how ] Comj 575. — 1- In wl actioi sione inter( Comj 528. m 1783 1788 THE BOARD OF COUNTY COMMISSIONERS. Tit. XL Ch.ll, Transfer of application, in what cases made. N. S. Notices, how given . Leaves of absence. Comp. laws,, p. 522. Board or other person on behalf of the county, for the erec- tion of public buildings, the opening or improvement of roads, or the building of bridges, or for other purposes. Sec. 1783. Whenever an application is made to the Board for an order, franchise, or license, relating to any toll road, bridge, ferry, or other subject over which the Board has jurisdiction, in which a majority of the Board are not disinterested,, the application, by order of the Board, must be transferred to the District Court of the County: the Clerk of the Board must thereupon certify the application and all orders and papers relating thereto to the Court to which the transfer is ordered: and thereafter tjie court to which the same is certified has full jurisdiction to hear and determine the application. Sec. 1784. All public notices of proceedings of, or to be had, before the board, not otherwise specially provided for, must be published in a newspaper published in the county; if there is no such newspaper, then copies thereof must be posted at the court house door, and at two other public places in the county. Sec. 1785. The Board of Commissioners may grant to any county officer of their respective counties (except the Probate Judge or a member of the Board of Commissioners of such county) leave of absence from their county and the Territory, for a period not exceeding ninety days, during which time the absence of such officer does not work a for- feiture of his office; Provided, That before the granting of such leave of absence, the officer must appoint a deputy to perform the duties of his office, as by statute in such cases made and provided, and must present to, and file with the Board of Commissioners of his county, the written consent of each person liable on his official bond, that such leave of absence be granted. Sce. 1786. All claims against the county presented by members of the Board of Commissioners for per diem and mileage, or other service rendered by them, must be verified as other claims, and must state that the service has been actually rendered. Sec. 1787. The Board must have prepared by the Clerk, and under their direction, prior to their annual January meeting, a statement showing: 1 . The indebtedness of the county, funded and floating, stating the amount of each class and the rate of interest borne by such indebtedness or any part thereof; 2. A concise description of all property owned by the county, with an approximate estimate of the value thereof, and the amount of cash in the county treasury and its several funds. Sec. 1788. When a petition, signed by at least five of the tax payers residing in any town or village, is presented to the Board asking that a committee be appointed for the purpose of inspecting chimneys, stove pipes, and fire-places, the Board at their first regular meeting must act upon such petition by appointing not less than three nor more than five tax payers of such town or village, who shall constitute a "Fire Guard'' within such limits as may be designated by the Commissioners. 0-~ns\ Claims in favor of commis- sioners. N. S. Annual state- ment, when made, con- tents of. N. S. Fire guard. 10 see., 13. 247 Tit. XI. Ch.II. THE BOARD OF COUNTY COMMISSIONERS. §§ 1789-1792 Same. 10 sea., 13. Same. 10 ses., 13. Commissioner, neglect of duty. Camp fires. Notice. 14 ses. Sec. 1789. They are invested with the power to exam- ine fire places, stove pipes, chimneys, and fire escapes in all public and private buildings within the limits designated by the Commissioners, and may, when in their opinion there exists danger from fire in any building, give a notice in writ- ing to the owner or occupant thereof, requiring him to re- pair, alter, or remove defective or insecure chimneys, fire- places, stoves, or stove pipes, within a reasonable time; and upon his refusal or failure to comply with such written order, the Board may have the same done at the expense of such owner or occupant. Sec. 1 790. To enforce the payment of such alterations and repairs, the Fire Guard may seize so much of the personal property of any person liable and refusing or neglecting to pay for such alterations and repairs, as will be sufficient to pay for the same and costs of seizure, which costs shall not exceed three dollars, and may sell the same at any time or place upon giving a verbal notice of one hour previous to such sale. Sec. 1791. Any Commissioner who neglects or refuses to perform any duty imposed on him without just cause therefor, or who willfully violates any law provided for his government as such officer, or fraudulently or corruptly performs any duty imposed on him, or willfully, fraudulently or corruptly attempts to perform an act, as Commissioner, unauthorized by law, in addition to the penalty provided in the Penal Code, forfeits to the county five hundred dollars for every such act. Sec. 1792. It is the duty of the Board of County Com- missioners of each county in this Territory, within sixty days after this act takes effect, to cause to be erected in a conspicuous place at the side of each public highway, and at such places as they may deem proper, a notice in large letters, substantially as follows :"Camp fires must be totally extinguished before breaking camp, under penalty of not to exceed six months imprisonment or three hundred dollars fine, or both as provided by law. (Signed.) County Commissioners." The erection and maintenance of such notices shall be at the expense of the respective counties, and at least ten in number of such notices shall be posted in each and every county in this Territory. [Act Feb. 10, 1887.] 248 :§§ 1810-1814 COUNTY OFFICERS. Tit. XL Ch. Iff. CHAPTER III. County Officers. article i. General Provisions. Section 18 LO. Age, citizenship and residence as to county officers. 1811. Same as district and township officers. 1812. County officers enumerated. 1813. Township and other inferior officers. 1814. County officers, when elected and term of office. 1815. May appoint deputies. 1816. Same. 1817. Same. 1818. Deputy to act during absence or va- cancy. 1819. Appointment to be in writing . 1820. Official name of principal officer in- clude deputies. 1821. Vacancies, how filled. Section 1822. What offices to be kept at county seat. 1823. Civil penalty for non-performance of duty attached to official bond. 1824. County" officers may administer oaths. 1825. Certain officers must reside at coun- ty seat. 182C, Absence of county officers from Territory. 1827. Certain officers prohibited from practicing law. 1828. Official bonds classified and amounts thereof. 1829. When amount of bond is not fixed by law. Section 1810. No person is eligible to a county office who at the time of his election or appointment is not of the age of twenty-one years, a citizen of the Territory, and for six months prior to the day of his appointment or election, an elector of the county in which the duties of the office are to be exercised. Sec. 1811. No person is eligible to ^district or precinct office who is not of the age of twenty-one years, a citizen of the Territory, and for six months prior to the day of his ap- pointment or election, an elector of the district or precinct in which the duties of the office are to be exercised, or for which he is elected. Sec. 1812. The officers of a county are: A Probate Judge; A Treasurer who is ex officio Public Administrator; A Sheriff; A District Attorney; A Recorder, who is ex officio Auditor; An Assessor, who is ex officio Tax Collector; A Surveyor: A School Superintendent; A Coronor; A Board of County Commissioners. Sec. 1813. The officers of x)recincts are two Justices of the Peace, one Constable, and such other inferior and sub- ordinate officers as are provided for elsewhere in this code or by the Board of Commissioners. Sec. 1814. All county district and precinct officers must be elected at the general election in November, eighteen hundred and eighty-eight, and every two years thereafter, and hold office for two years from the second Monday of January next after their election, and until their successors, respectively, are elected and qualified. Every officer now in office must hold his office and exercise the duties thereof until his successor is elected at the general election in eighteen hundred and eightv-eight, and dulv qualified. 249 Qualifications for coimty officer. 13 sesM 58. Qualifications. 13 ses.,58. County officers enumerated. Township and other officers. County officers, when elected, term of office. 13 ses., 57. Tit. XL Ch.IU. COUNTY OFFICERS. §§ 1815-1828 \UH.U (V^(' May appoint deputies. 5~ StLVJunA' Comp. laws, Same. Comp. laws, 822. Same. Comj). laws, 822. Deputy to act during absence or vacancy. 8 ses., 546-557. Appointment must be in writ- ing and filed. Comp. laws, 546. Official name of principal officer includes deputies. Comp. laws, 546. Vacancies, bow filled. 13 ses., 116. Offices to be kept at county seat. Comp. laws, 545-557-577. Penalty for non- performance of duty. Officers may administer oatbs . Certain officers to reside at county seat. Absence of officers from tbe Territory. Officers pro- hibited from practicing law. Comp. laws, 552. Official bonds classified, amounts thereof. Sec. 1815. Every county officer except Probate Judge, Commissioner, School Supperintendent and Coroner may appoint as many deputies as may be necessary for the faith- ful and prompt discharge of the duties of his office. Sec. 1816. Any county officer who may be granted leave of absence from the county wherein he resides and holds office, is reqired to appoint a good and sufficient dep- uty to act for him and in his place while absent. Sec. 1817. Should any county officer who is granted leave of absence fail to appoint a deputy as required by this chapter, the act granting such leave of absence is null and void and the office vacant, and the vacancy must be filled by the Board of County Commissioners of the county. Sec. 1818. When a county officer lias more than one deputy he must designate one, by indorsement upon his ap- pointment as senior deputy, and in case of a vacancy in the office, by death, resignation, or otherwise, or of the officer's absence, or inability to perform the duties of his office, such deputy must continue to perform the duties of the office during such vacancy, absence, or inability. Sec. 1819. The appointment of deputies and subordin- ate officers must be made in writing, and filed in the office of the County Recorder. Sec. 1820. Whenever the official name of any principal officer is used in any law conferring power, imposing duties or liabilities, it includes his deputies. Sec. 1821. All vacancies in county; district and pre- cinct offices are filled by appointments made by the Board of Commissioners. ♦Appointees hold until the vacancies are filled by election. Sec. 1822. Sheriffs, Recorders, Treasurers, Assessors and District Attorneys must have their offices at the county seat, and keep them open for the transaction of business from nine o'clock a. m. till five o'clock p. m. every day in the year except holidays. The Probate Judge must have an office at the county seat, and must establish such rules and hours for official business as may be necessary for the dispatch thereof. Sec. 1823. Whenever, except in criminal prosecutions, any special penalty, forfeiture or liability is imposed on any officer for non-performance or mal-performance of official duty, the liability therefor attaches to the official bond of such officer and to the principal and sureties thereon. Sec. 1824. Every county officer and every Justice of the Peace may administer and certify oaths. Sec. 1825. The following officers must reside at the county seat of their respective counties: The Probate Judge, the Sheriff, the Tax Collector, the District Attorney, the Re- corder. Sec. 1826. No county officer must absent himself from the Territory for more than ten days, unless with the con- sent of the Board of the County Commissioners. Sec. 1827. Sheriff s, Clerks of Courts and their deputies, and Constables are prohibited from practicing law or acting as attorneys or counselors at law, or having as a partner a lawyer or any one who acts as such. Sec. 1828. County, district and precinct officers must execute official bonds in the following amounts: 250 §§ 1829-1836 COUNTY OFFICERS. Tit. XL Gh. III. 1. County Commissioners each in the sum of five thou- sand dollars; 2. Probate Judges each in the sum of five thousand dol- lars; 3. County Treasurers each in double the probable amount of money that may at any time come into his hands as such Treasurer, to be fixed by the Board of County Commission- ers, but in no case to be less than ten thousand dollars; 4. Sheriffs each in the sum of ten thousand dollars; 5. County Recorders each in the sum of not less than five nor more than twenty thousand dollars, to be fixed by the Board of County Commissioners and to cover his duties 8 see., 557. and liabilities as Recorder, Auditor and Clerk of the Board of County Commissioners; 6. Assessors each in the sum of five thousand dollars; 8 ses.,480. 7. Tax Collectors each in the sum of not less than five, uses., 235. « nor more than twenty thousand dollars, to be fixed by the ^7~.«~-^e Board of County Commissioners; 8. District Attorneys each in the sum of two thousand uses., 251. dollars; 9. School Superintendents each in the sum of one thou- sand dollars; 10. County Surveyors each in the sum of two thousand dollars; 11. Coroners each in the sum of one thousand dollars; 12. Public administrators each in the sum of two thou- sand dollars; 13. Justices of the Peace and Constables, each in the sum of not less than five nor more than ten hundred dollars. Sec. 1829. When the amount of the bond to be given Bond not fixed by any county, district or precinct officer is not fixed by law by law- the amount must be fixed by the Board of Commissioners. ARTICLE 11. Probate Judge. Section 1835 . Duty of Probate Judge. Section 1830. Fire proof office for. Section 1835. The Probate Judge must: 1. Perform the duties of a magistrate; 2. Hold Probate Courts; 3. Take and certify acknowledgments to the execution of instruments in writing and grant certificates to the offi- cial character of the county officers; 4. Perform such other duties as are prescribed in any of the laws of this Territory. 1 Sec. 1836. (Sec. 1.) It shall be the duty of the Board of County Commissioners of the different counties of the Terri- tory when the county owns a fire proof building, to provide an office in said building for the uses of the Probate Judge and for the safe keeping and protection of all probate re- cords. [Act Feb. 10, 1887, in effect immediately.] 251 Duty of pro- bate judge. Office for pro- bate judge. 14 ses. Tit. XL Ch. fit. COUNTY OFFICERS. §§ 1840-1814 ARTICLE III. County Treasurer. Duties of county treasurer. Comp. laws, p. 575. No money re- ceived on auditor's certifi- cate. Must receipt for money. Rev. act, 92. Comp. laws, p. 575. Mode of re- deeming war- rants. Comp. laws, p. 575. Registry of warrants, when no funds. Comp. laws, p. 575. Section 1853. When 1854. 1855. 1856. 1857. 1858. 1859. 18(50. 1861. he must sue District At- torney. When he must sue Coroner. What he must do with property re- ceived from Coroner. Money from Coroner in Treasury may be demanded within six years . Treasurer must not loan public money or make general deposit. Commissioners may suspend Treas- urer . No commissions allowed. Books and vouchers subject to in- spection. Treasurer must permit Auditor to examine his books, etc. Section 1840. Duty of County Treasurer. 1841. To receive no money, except on cer- tificate of Auditor. 1842. Must receipt for money. 1843. Mode of redeeming warrants. 1844. Registry of warrants, when no funds. 1845. Notice of redemption of warrants. 1846. What it must state, and how pub- lished. 1847. Priority in payments of warrants. 1 848. Funds reserved sixty days therefor. 1849. Must note the interest paid on war- rant. 1850. Settlements, when and how made monthly and annually. 1851. Report to Board of Commissioners each session. 1852. Penalty for not reporting. Section 1840. The County Treasurer must: 1. Receive all moneys belonging to the county, and all other moneys by law directed to be paid to him, safely keep the same, and apply and pay them out, rendering account thereof as required by law; 2. File and keep the certificates of the Auditor delivered to him when moneys are paid into the Treasury: 3. Keep an account of the receipt and expenditure of all such moneys, in books provided for the purpose; in which must be entered the amount, the time when, from whom, and on what account all moneys were received by him; the amount, time when, to whom, and on what account all dis- bursements were made by him; 4. So keep his books that the amounts received and paid out on account of separate Funds or specific appropriations are exhibited in separate and distinct accounts, and the whole receipts and expenditures shown in one general or cash account; 5. Enter no moneys received for the current year on his account with the county for the past fiscal year, until after his annual settlement for the past year has been made with the County Auditor; 0. Disburse the county moneys only on county warrants issued by the County Auditor; based on orders of the Board of Commissioners, or as otherwise provided by law. Sec. 1841 . He must receive no money into the Treasury unless accompanied by the certificate of the Auditor. Sec. 1842. When any money is paid to the County Treasurer he must give to the person paying the same a re- ceipt therefore, which must forthwith be deposited with the the County Auditor, who must charge the Treasurer there- with and give the person paying the same a receipt. Sec. 1843. When a warrant is presented for payment if there is money in the treasury for that purpose, he must pay the same, and write on the face thereof "Paid", the date of payment and sign his name thereto. Sec. 1844. When any warrant is presented to the Treas- urer for payment and the same is not paid for want of funds, the Treasurer must indorse thereon, "Not paid for want of funds," annexing the date of presentation andsignhis name thereto; and from that time until paid the warrant bears seven per cent, per annum interest. 252 So 1845-1851 COUNTY OFFICERS. Tit. XL Ch. III. Sec. 1845. When there are sufficient moneys in the treasury to pay the warrants drawing interest, the Treasurer must give notice in some newspaper published in his county, or, if none is published, then by written notice posted upon the Court House door, stating therein that he is ready to pay such warrants. From the first publication or posting of such notice, such warrants cease to draw interest. Sec. 1846. In advertising warrants under the provis- ions of this section in any newspaper, the Treasurer must not publish the warrants in detail, but give notice only that county warrants presented for payment prior to such a date, stated in the notice, are payable. When a part only of the warrants presented for payment on the same day are paya- ble, the Treasurer must designate such payable warrants in the advertisement. Sec. 1847. Warrants drawn on the treasury and prop- erly attested, are entitled to preference as to payment out of moneyes in the treasury properly applicable to such war- rants according to the priority of time in which they were presented. The time of presenting such warrants must be noted by the Treasurer and upon the receipt of moneys into the treas- ury not otherwise appropriated, he must set apart the same or so much thereof as is necessary for the payment of such warrants. Sec. 1848. Should such warrants not be re-presented for payment within sixty days from the time of the notice hereinbefore provided for is given, the fund set aside for the payment of the same must be by the Treasurer applied to the payment of unpaid warrants next in order of registry. The Board of Commissioners may, on application and pre- sentation of warrants, property indorsed, which have been advertised, pass an order directing the Treasurer to pay them out of any money in the treasury not otherwise ap- propriated. Sec. 1849. When the Treasurer pays any warrant on which any interest is due, he must note on the warrant the amount of interest paid thereon and enter on his account the amount of such interest distinct from the principal. Sec. 1850. The Treasurer must settle his accounts re- lating to the collection, care and disbursement of public revenue, of whatsoever nature and kind, with the Auditor, on the first Monday of each month. For the purpose of making such settlement, he must make out a statement un- der oath, of the amount of money or other property received prior to the period of such settlement, the sources whence the same wras derived, the amount of payments or disburse- ments, and to whom, with the amount remaining on hand. He must in such settlements, deposit all warrants redeemed by him and take the Auditor's receipt therefor. He must also make a full settlement of all accounts with the Auditor annually on the second Monday of January, in the presence of the Commissioners, who have a supervisory control thereof. Sec. 1851. Each County Treasurer must make a de- tailed report at every regular meeting of the Board of Com- missioners of his county, of all moneys received by him and the disbursement thereof, and of all debts due to and from 253 Notice of re- demption of warrants. 11 ses., 250, sec. 11. What it must state and how published. Priority in payment of warrants . Rev. act, sec. 13. 9 ses., 21. Funds reserved sixty days. Rev. act, sec. 13. Must note the interest paid on warrant. Sec. 12. Settlements, when and how made. Sec. 18. Report to board of commis- si ouers each session. lit. XL Ch. III. COUNTY OFFICERS. §§ 1852-1859 Penalty for uot reporting. When he must sue district attorney. When he must sue coroner. Comp. laws, p. 569. Property re- ceived from coroner, disposal of. Comp. laws, 569. Money from coroner in treasury may be demanded within six years. Comp. laws, 569. Treasurer must not loan public money or make general deposit. Bev. act, 92. Commissioners may suspend treasurer. No commissions allowed. the county, and of all other proceedings in his office, so that the receipts into the Treasury and the amount of disburse- ments, together with the debts due to and from the county may clearly and distinctly appear. Sec. 1852. If any County Treasurer neglects' or refuses to settle or report as required in sections 1850, 1851, he for- feits and must pay to the county the sum of five hundred dollars for every such neglect or refusal, and the Board of Commissioners must institute suits for the recovery thereof. Sec. 1853. If the District Attorney refuses or neglects to account for and pay over money received by him as re- quired by law, the County Treasurer must bring an action against him for the recovery thereof in the name of the county, and may recover in such action in addition to the amount so received, fifty per cent, thereon by way of dam- ages. Sec. 1854. If the Coroner or any Justice of the Peace acting as Coroner, fails to deliver to the Treasurer within thirty days after any inquest upon a dead body, all money and property found upon such body, unless claimed in the meantime by the legal representative of the decedent as re- quired by law, the Treasurer must proceed against the Cor- oner, or Justice acting as Coroner, to recover the same by civil action in the name of the county. Sec. 1855. The Treasurer upon receiving from the Coroner or Justice acting as Coroner, money found on a dead body, must place it to the credit of the county. On receiving other property in like manner 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. Sec. 1856. If the money in the treasury is demanded within six years by the legal representatives of the decedent, the Treasurer must pay it to them, after deducting the fees and expenses of the Coroner and of the county in relation to the matter; or the same may be so paid at any time there- after upon the order of the Board of Commissioners. Sec. 1857. The County Treasurer must keep all moneys belonging to this Territory or to any county of this Territory in his own possession until disbursed according to law. He must not place the same in the possession of any person to be used for any purpose; nor must he loan or in any manner use or permit any person to use the same, except as provided by law; but nothing in this section prohibits him from mak- ing special deposits for the safe keeping of the public moneys. Sec. 1858. Whenever an action based upon official mis- conduct is commenced against any County Treasurer, the Commissioners, may, in their discretion, suspend him from office until such suit is determined, and may appoint some person to fill the vacancy. Sec. 1859. In case of the death of any County Treasurer his legal representatives must deliver up all official moneys, books, accounts, papers, and documents which come into their possession. No percentage must be allowed to the Treasurer on any money by him received from his predeces- sor in office or from the legal representatives of such prede- cessor. 254 §§ 1860-1871 COUNTY OFFICERS. Tit XL Ch.IIl Sec. 1860. The books, accounts, and vouchers of the Treasurer are at all times subject to the inspection and ex- amination of the Board of Commissioners and Grand Jury. Sec. 1861. The Treasurer must permit the County Com- missioners and Auditor to examine his books and count the money in the treasury whenever they may wish to make an examination or counting. ARTICLE IV. She riff- Section Sectio 1870. "Process" and "notice" denned. 1885. 1871. Duties of Sheriff. 1886. 1872. Service and execution of process. 1873. Return primary evidence . 1887. 1874. Penalty for non-return of process.etc 1888. 1875. Liable for refusing to levy. 1889. 1876. Damages for refusing to pay over money. 1890. 1877. Liable for permitting an escape. 1878. Liable for a rescue. 1891. 1879. No action for escape or rescue after recapture. 1892. 1880. Direction to Sheriff must be in writ- 1893. 1881. . ing. When office of Sheriff deemed va- cant. 1894. 1---J. When Sheriff justified in executing process. 1895. 1883. Officer to exhibit process. 1896. 1884. Sheriff to act as crier. Service on Sheriff, how made. Coroner, to execute process when Sheriff is a party. Elisors to act in cases designated. Other duties. When Sheriff cr officer perform ser- vice for Territory . Proceedings in cases of arrest of Sheriff, etc. Powers and duties of elisors. County Recorder to issue certifi- cates to new Sheriff. Sheriff to deliver county property to successor. Sheriff to acknowledge transfer of same. Sheriff to complete process begun, etc. When Sheriff refuses to deliver to successor. Section 1870. "Process" as used in this article includes all writs, warrants, summons and orders of courts of justice or judicial officers. "Notice*' includes all papers and orders (except process) required to be served in and proceeding before any court, Board or officer, or when required by law to be served inde- pendently of such proceeding. Sec 1871. The Sheriff must: 1. Preserve the peace; 'l. Arrest and take before the nearest magistrate for ex- amination, all persons who attempt to commit or who have committed a public offense; 3. Prevent and suppress all affrays, breaches of the peace, riots and. insurrections which may come to his knowl- edge; 4. Attend all courts, except Justices' and Probate Courts, at their respective terms held within his county, and obey their lawful orders and directions; 5. Command the aid of as many male inhabitants of his county as he may think necessary in the execution of these duties; 6. Take charge of and keep the county jail and the pris- oners therein; 7. Indorse upon all process and notices the year, month, day, hour and minute of reception, and issue therefor to the person delivering it on payment of fees, a certificate show- ing the names of the parties, title of paper and time of re- ception; 8. Serve all process and notices in the manner prescribed by law; 0. Certify under his hand upon process or notices the manner and time of service, or if he fails to make service, the reasons of his failure and return the same without delay. 255 Books, etc., subject to in- spection. Auditor and commissioners may examine books. "Process" ♦'Notice" defined. N. S. and Duties of sheriff. Comp. laws, 544. Til. XL Ch. III. COUNTY OFFICERS. Services and execution of process. Coinp. laws, 1>. 54r>. Return prima facie evidence. X. S. Penalty for non-return of process Comp. law s, p. 545 . Liable for refusal to levy. Comp. laws, p. 545. Damages for refusing to pay over mouey. Comp. laws, 545. Liabilit\ for permitting an escape. Comp. laws, p. 549. Liable for a rescue. Comp. laws, 549. No action for escape or rescue after recapture. Comp. laws, p. 549. Direction to a sberiff roust be in writing Comp. laws, p. 551. Wben office deemed vacant. Comp. laws, 551. Sec. 1872. When process or notices are returnable to another county, he may inclose such process or notice in an envelope addressed to the officer from whom the same ema- nated and deposit it in the post-office, prepaying postage. Sce. 1873. The return of the Sheriff upon process or notices, is prima facie evidence of the facts in such return stated. Sec. 1874. If the Sheriff does not return a notice or pro- cess in his possession with the necessary endorsement there- on without delay, he is liable to the party aggrieved for the sum of two hundred dollars and for all damages sustained by him. Sec. 1875. If the Sheriff to whom a writ of execution is delivered neglects or refuses, after being required by the creditor or his attorney, to levy upon or sell any property of the party charged in the writ which is liable to be levied upon and sold, he is liable to the creditor for the value of such property. Sec. 1876. If he neglects or refuses to pay over on de- mand, to the person entitled thereto, any money which may come into his hands by virtue of his office (after deducting his legal fees), the amount thereof, with twenty-five per cent, damages and interest at the rate of ten per cent, per month from the time of demand, may be recovered by such person. Sec. 1877. A Sheriff who suffers the^escape of a person arrested in a civil action, without the consent or connivance of the party in whose behalf the arrest or imprisonment was made, is liable as follows: 1. When the arrest is upon an order to hold to bail or up- on a surrender in exoneration of bail before judgment, he is liable to the plaintiff as bail; 2. When the arrest is on an execution or commitment to enforce the payment of money, he is liable for the amount expressed in the execution or commitment; 3. When the arrest is on an execution or commitment other than to enforce the payment of money, he is liable for the actual damages sustained; 4. Upon being sued for damages for an. escape or rescue he may introduce evidence in mitigation and exculpation. Sec. 1878. He is liable for a rescue of a person arrested in a civil action, equally as for an escape. Sec. 1879. An action cannot be maintained against the Sheriff for a rescue, or for an escape of a person arrested up- on an execution or commitment, if, after his rescue or escape and before the commencement of the action, the prisoner re- turns to the jail, or is retaken by the Sheriff. Sec. 1880. No direction or authority by a party or his attorney to a Sheriff, in respect to the execution of process or return thereof, or to any act or omission relating thereto. is available to discharge or excuse the Sheriff from a liability for neglect or misconduct, unless it is contained in a writing, signed by the attorney of the party, or by the party if he has no attorney. Sec. 1881. When the Sheriff is committed under an execution or commitment, for not paying over money re- ceived by him by virtue of his office, and remains com- mitted for sixty days, his office is vacant. 256 &5 1882-1890 COUNTY OFFICERS. Tit. XL Ch. III. Sec. 1882. A Sheriff, or other ministerial officer, is justified in the execution of and must execute all process and orders regular on their face and issued by competent au- thority, whatever may be the defect in the proceedings upon which they were issued. Sec. 1883. The officer executing process must then, and at all times subsequent, so long as he retains it, upon re- quest show the same, with all papers attached, to any per- son interested therein. Sec. 1884. The Sheriff in attendance upon Court must act as the Crier thereof, call the parties and witnesses and all other persons bound to appear at the Court, and make proclamation of the opening and adjournment of the Court, and of any other matter under its direction. Sec. 1885. Service of a paper, other than process, upon the Sheriff may be made by delivering it to him or to one of his deputies, or to a person in charge of the office during office hours, or if no such person is there, by leaving it in a conspicuous place in the office. Sec. 1886. When the Sheriff is a party to an action or proceeding, the process and orders therein, which it would otherwise be the duty of the Sheriff to execute, must be exe- cuted by the Coroner of the county. Sec. 1887. Process and orders in an action or proceed- ing may be executed by a person residing in the county, designated by the Court, the Judge thereof, or a Probate Judge, and denominated an Elisor in the following cases : 1. When the Sheriff and Coroner are both parties; 2. When either of these officers is a party and the process is against the other; and 3. When either of these officers is a party and there is a va- cancy in the office of the other, or when it appears by affi- davit to the satisfaction of the Court in which the proceed- ing is pending, or th£ Judge thereof, that both of these of- ficers are disqualified, or by reason of any bias, prejudice, or other cause, would not act promptly or impartially. When the process is delivered to an Elisor he must execute and return it in the same manner as the Sheriff is required to execute similar process. Sec. 1888. The Sheriff must perform such other duties as are required of him by law. Sec. 1889. When the Sheriff or other officer is legally required to perform a service in behalf of the people of this Territory, which is not chargeable to his county or a private person, his account and claim for compensation therefor, must be filed with the Territorial Controller, and by him transmitted to the Legislature with his report thereon, at its first session after the rendition of such service for its action thereon. Sec. 1 890. If the Sheriff, on being arrested by a Coroner or if the Sheriff, or Coroner on being arrested by an Elisor, or if another person in an action in which both the Sheriff and Coroner are plaintiffs upon an order of arrest in a civil action . neglect to give bail or make a deposit of money instead thereof, or if the Sheriff be arrested on execution against his body, or on a warrant of attachment, he or they must be confined in a house other than that of the Sheriff, or the county jail, in the same manner as the Sheriff is required t 17 257 When sheriff justified in executing pro- cess. Coinp. laws, 552. Officer to ex- hibit process. Corap. laws, 552. Sheriff to act as crier. Comp. laws, 552. Service on sheriff, how niade. Comp. laws, 545. Coroner to exe- cute process, when. Comp. laws, 552. Elisors to act in cases designated. Comp. laws, 552-53. Other duties. When sheriff or officer perform service for Territory. Comp. laws, 551. Proceedings in. case of nrrest of sheriff, etc. Comp. laws, 55:}. ( I Tit. XL Ch. TIL COUNTY OFFICERS. §§ 1891-2005 Powers and duties of elisors. Comp. laws, 5:.:;. County recorder to issue certifi- cate to new sheriff, etc. Comp. laws, 550. Sheriff to de- liver county property to successor. Comp. laws, 550. Sheriff to acknowledge transfer of same. Comp. laws, 550. Sheriff to com- plete process begun, etc. Comp. laws, 550. When sheriff refuse to de- liver to hia successor. Conip. laws, 550. confine a prisoner in the county jail; the house in which he is thus confined thereupon becomes for that "purpose the county jail. Sec. 1891. An Elisor appointed to execute process and orders in the case mentioned in this article, is invested with the powers, duties, and responsibilities of the Sheriff, in the execution of the process, or orders, and in every matter in- cidental thereto. Sec. 1 892. When a new Sheriff is elected and has quali- fied, and given the security required by law, the County Re- corder must give a certificate of that fact, under his seal of office, upon the service of which on the former Sheriff his powers cease, except as otherwise provided in this article. Sec. 1893. Within three days after the service of the certificate upon the former Sheriff, he must deliver to his successor : First. The jail of the county, with its appurtenances, and the property of the county therein; Second. The prisoners then confined in the county jail; Third. The process, orders and other papers in his cus- tody, authorizing or relating to the confinement of the prisoners; Fourth. All process and orders for the arrest of a party, and all papers relating to the summoning of a grand or trial jury, which have not been fully executed; Fifth. All executions, attachments, and final process, except those which he has executed or has begun to execute, by the collections of money or a levy on property. Sec. 1894. He must also at the same time, deliver to the new Sheriff a written transfer of the property, process, papers, and prisoners delivered, specifying the process or order by which each prisoner delivered was committed and detained. The new Sheriff must thereupon acknowledge, in writing on a duplicate of the transfer, the receipt of the property, process, papers, and prisoners therein specified. Sec. 1895. Notwithstanding the election and qualifica- tion of a new Sheriff, the former Sheriff must return all pro- cess and orders before and after judgment, which he has fully executed, and must complete the execution of all final process which he has begun to execute previous to the ex- piration of his term of office. Sec. 1896. If the former Sheriff refuse or neglect to de- liver to his successor the jail, process, ^papers, and prisoners in his charge, the new Sheriff may, notwithstanding, take possession of the jail, and of the prisoners confined therein, and the Probate Court, or the Probate Judge, may, upon ap- plication, order the delivery of the process and papers. Auditor to draw warrants and settle accounts. Comp. laws, ~>»>4, see. 2*i ARTICLE V. Auditor. Section 2005. Auditor to draw warrants and set- tle accounts. 2006. Warrants must specify what. 2007. Settlements with debtors to the county. 2008. To keep accounts, file receipts, etc. 2009. Warrants of Auditor to be num- bered. Section 2010. Quarterly statements concerning collection cf revenue to be made, when. 2011. Other duties. 20 1 2. Auditor to report to Controller. 2013. Bond where filed and recorded. Section 2005. The Auditor must draw warrants on the ( Jounty Treasurer in favor of all persons entitled thereto, in 258 .§§ 2006-2013 COUNTY OFFICERS. Tit. XL Ch. III. payment of all claims and demands chargeable against the county which have been legally examined, allowed and or- dered paid by the Board of Commissioners; also, for all debts and demands against the county when the amounts are fixed by law, and which are not directed to be audited by some other person or tribunal. Sec. 2006. All warrants must distinctly specify the lia- bility for which they are drawn, and when it accrued. Sec. 2007. The Auditor must examine and settle the accounts of all persons indebted to the county, or holding- moneys payable into the county treasury, and must certify the amount to the Treasurer, and upon the presentation and filing of the Treasurer's receipt therefor, give to such person a discharge and charge the Treasurer with the amount re- ceived by him. Sec. 2008. The Auditor must keep accounts current with the Treasurer, and when any person deposits with the Auditor any receipt given by the Treasurer for any money paid into the treasury, the Auditor must file such receipt and charge the Treasurer with the amount thereof. Sec. 2009. All warrants issued by the Auditor during each year commencing with the first Monday in January, must be numbered consecutively, and the number, date and amount of each, and the name of the person to whom paya- ble, and the purpose for which drawn, must be stated there- on, and they must at the time they are issued, be registered by him. Sec. 2010. The Auditor and Treasurer of each county must, on the second Monday in January. April, July and October, make a joint statement to the Board of Commis- sioners, showing the whole amount of collections (stating particularly the source of each portion of the revenue) from all sources paid into the county treasury, the funds among which the same was distributed, and the amount to each; the total amount of warrants drawn and paid, and on what fund; the total amount of warrants drawn and unpaid, and accounts or claims audited, or allowed and unpaid, and the fund out of which they are to be paid, and generally make a full and specific showing of the financial condition of the county. Sec 2011. The Auditor must discharge such other du- ties as are required by law. Sec 2012. Every County Auditor must, on the first Monday of November in each year, transmit to the Territo- rial Controller an exact and full statement under oath, of the financial condition of his county; and said report or statement must plainly set forth the amount of indebted- ness, if any, the amount of funds, on hand, if any, and an?y and all liabilities of the county. Sec 2013. The bonds of the Recorder and Auditor must be filed by the Probate Judge in the Probate Court of the county, and a copy thereof duly recorded by the Coun- ty Recorder, and when so recorded, fully attested by the Probate Judge. 259 Warrants must specify, what. Settlement with debtors to the county. Comp. laws, 575. To keep ac- counts, file receipts, etc. Comp. laws, 563. Warrants of auditor to be numbered. Comp. laws, 564. Quartei-ly statements, when made. Rev. act, 55. Other dutien. Auditor to re- port to control- ler. 12 ses., 05. Bond of recorder. Comp. laws, 557. Tit. XI. Ch. 111. COUNTY OFFICEKS. §§ 2023-2025 ARTICLE VI. Recorder. Recorder to procure record books. Corap. laws, 557. What to be recorded . Comp. laws, 558. Indexes to be kept by re- corder. Comp. laws, 558 to 561. Section 2023. Recorder to pi-ocure record-books. 2024. What to be recorded. 2025. Indexes to be kept by Recorder. 2026. Records of certificates of sale 2027. To record decrees or partition. 2028. Filing of copy to impart notice. 2029. May keep two or more indexes same volume. Section ( 2030. Recorder's duty on receipt of instru- ment to be recorded. 2031. Recorded instruments to be in- dorsed. 2032. Recorder to make searches. 2033. Liable for neglect of certain duties. 2034. Fees to be prepaid. 2035. Records to be open for inspection. Section 2023. The Recorder must procure such books for records as the business of his office requires, but orders for the same must first be obtained from the Board of Com- missioners. He has the custody of and must keep all books, records, maps, and papers deposited in his office. Sec. 2024. He must, upon the payment of his fees for the same, record separately, in large and well-bound sepa- rate books, in a fair hand: 1. Deeds, grants, transfers and. mortgages of real estate, releases of mortgages, powers of attorney to convey real estate and leases which have been acknowledged or proved; 2. Mortgages of personal property; 3. Certificates of marriage and marriage contracts; 4. Wills admitted to probate; 5. Official bond; 6. Notices of mechanics* liens; 7. Transcripts of judgments which by law are made liens upon real estate; 8. Notices of attachments upon real estate; 9. Notices of the pendency of an action affecting real es- tate, the title thereto or possession thereof;. 10. Instruments describing or relating to the separate property of married women; 11. Notices of pre-emption claims; 12. Such other writings as are required or permitted by law to be recorded. Sec. 2025. Every Recorder must keep: 1. An index of deeds, grants, and transfers, labeled "Grantors", each page divided into four columns, headed respectively: "Names of grantors**, "Names of grantees", "Date of deeds, grants or transfers'", and "Where recorded"; 2. An index of deeds labeled ''Grantees", each page di- vided into four columns, headed respectively: "Names of grantees'", "Names of grantors", "Date of deeds, grants, or transfers", and "Where recorded": 3. Two indexes of mortgages, labeled respectively: "Mort- gagors of real property", "Mortgagors of personal property", with the pages thereof divided into five columns, headed respectively: "Names of mortgagors", "Names of mortga- gees", "Date of mortgages", "Where recorded", "When discharged"; 4. Two indexes of "Mortgagees", labeled respectively: ' 'Mortgagees of real property", ' 'Mortgagees of personal prop- erty", with the pages thereof divided into five columns, headed respectively: "Names of mortgagees", "Names of mortgagors", "Date of mortgages", "Where recorded'', ''When discharged": 260 2025 COUNTY OFFICERS. Tit XL Ch. III. 5. Two indexes of release of mortgages, labeled respect- ively: ' 'Releases of mortgages of real property — mort- gagors", "Releases of mortgages of personal property — mortgagors", with the pages thereof divided into six col- ums, headed respectively: "Parties releasing", "To whom releases are given", "Date of releases", "Where releases are recorded'', "Date of mortgages released", "Where mortgages released are recorded"; G. Two indexes of releases of mortgages, labeled respect- ively: "Releases of mortgages of real property — mort- gagees", "Releases of mortgages of personal property — mortgagees", with the pages thereof divided into six columns, headed respectively : "Parties whose mortgages are released", "Parties releasing", "Date of releases", Where recorded", "Date of mortgages released", "Where mortgages released are recorded": 7. An index of powers of attorney, labeled "Pow- ers of Attorney", each page divided into five colums headed respectively: "Names of parties executing the pow- ers", "To whom powers are executed", "Date of powers", "Date of recording", "Where powers are recorded"; 8. An index of leases, labeled "Lessors'', each page di- vided into four columns, headed respectively: "Names of lessors", "Names of lessees", "Date of leases", "When and where recorded"; 9. An index of leases, labeled "Lessees", each page di- vided into four columns, headed respectively: "Names of lessees", "Names of lessors", "Date of leases", "When and where recorded"; 10. An index of marriage certificates, labeled "Marriage certificate — Men", each page divided into six columns, headed respectively: "Men married", "To whom married", "When married", "By whom married", "Where married", "Where certificates are recorded"; 11. In index of marriage certificates, labeled "Marriage certificates — Women", each page divided into six columns, headed respectively: "Women married" (and under this head placing the family names of the women), "To whom married", "When married", "By whom married", "Where married", "Where certificates are recorded"; 12. An index of assignments of mortgages and leases, labeled " Assignments of Mortgages and Leases — Assignors", each page divided into five columns, headed respectively: "Assignors", "Assignees", "Instruments assigned", "Date of assignments", "When and where recorded"; 13. An index of assignments of mortgages and leases, labeled "Assignments of Mortgages and Leases — As- signees'', each page divided into five columns, headed re- spectively: "Assignees". " Assignors", "Instruments assign- ed", "Date of assignments", "When and where recorded"; 14. An index of wills, labeled, "Wills", each page divided into four columns, headed respectively: "Names of testa- tors", "Date of wills", "Date of Probate." "When and where recorded": 15. An index of official bonds, labeled "Official Bonds", each page divided into five columns, headed respectively: "Names of officers", "Names of offices", "Date of bonds", "Amount of bonds". "When and where recorded". 261 Tit. XL Ch. III. COUNTY OFFICERS. § 202G 16. An index of notices of mechanics' liens, labeled "Me- chanics' liens", each page divided into three columns, head- ed respectively, "Parties claiming liens'', "Against whom claimed'', "Notices*', "When and where recorded". 17. An index to transcripts of judgment, labeled "Tran- scripts of judgments'', each page divided into seven col- umns, headed respectively, "Judgment debtors''. "Judg- ment creditors", "Amount of judgments", "Where recov- ered", "When recovered", "When transcript filed", "When judgment satisfied". 18. An index of attachments, labeled "Attachments', each page divided into six columns, headed respectively, "Parties against whom attachments are issued", "Parties issuing attachments", "Notiices of attachments", "When recorded", "Where recorded", "When attachments dis- charged". 19. An index of notices of the pendency of actions, la- beled "Notices of actions", each page divided into three columns, headed respectively, "Parties to the actions", "Notices when recorded", "Where recorded". 20. An index of the separate property of married women labeled "Separate property of married women", each page divided into five columns, headed respectively "Names of married women", "Names of their husbands", "Nature of instruments recorded", "When recorded", "Where record- ed". 21. An index of possessory claims, labeled "Possessory claims", each page divided into five columns, headed re- spectively, "Claimants", "Notices", "When received", "Date of notices", "When and where recorded". 22. An index of homesteads, labeled "Homesteads". each page divided into five columns, headed respectively, "Claimants", "Date of declaration", "When and where re- corded", "Abandonment", "When and where recorded". 23. An index of agreements and bonds affecting the title of real property, labeled "Real property agreements", each page divided into four columns, headed respectively, "Yen- dors", "Vendees", "Date of agreement", "When and where recorded". 24. An index of mining claims, labeled "Mining claims", each page divided into five columns, headed "Locators". "Name of claim", "Date of location", "When filed for rec- ord", "Where recorded". 25. An index of water rights, labeled "Water rights", each page divided into four columns labeled "Locators'". "Date of notice", "When filed for record", "Where re- corded". 20. A general index of all papers to be entered as they are filed. Records of certif- $ec. 2026. The Recorder must keep in his office a book icatesofsaie. tQ be caUed ^Certificates of Sale," and record therein all certificates of saleof real estate sold under execution or under order made in any judicial proceeding. He must also prepare an index thereto, in which in separate columns he must en- ter the names of the plaintiff in the execution, the defendant in the execution, the purchaser at the sale, and the date of the sale. 202 gg 2027-2033 8S COUNTY OFFICERS. Tit. XT. Ch. III. Sec. 2027. The Recorder must file and record with the record of deeds, grants and transfers, certified copies of final judgments or decrees partitioning or affecting the title or possession of real property, any part of which is situate in the county of which he is Recorder. Sec. 2028. Every such certified copy of partition from the time of the filing same with the Recorder for record, im- parts notice to all persons of the contents thereof; and sub- sequent purchasers, mortgagees, and lienholders, purchase and take with like notice and effect as if such copy of de- cree was a duly recorded deed, grant or transfer. Sec. 2029. The Recorder may keep in the same volume any two or more of the indexes required to be kept, but the several indexes must be kept distinct from each other, and the volume distinctly marked on the outside in such way as to show all the indexes kept therein. The names of the parties in the first column in the several indexes must be arranged in alphabetical order, and when a conveyance is ex- ecuted by a Sheriff, the name of the Sheriff and the part}7 charged in the execution must both be inserted in the index under the name of the latter, and when an instrument is re- corded to which an execution, administrator or trustee is a party, the name of such executor, administrator or trustee, together with the name of the testator or intestate, or party for whom the trust is held, must be inserted in the index under the name of the latter. Sec. 2030. When any instrument, paper or notice au- thorized by law to be recorded, is deposited in the Recorders office for record, the Recorder must endorse upon the same the time when it was received, noting the year, month, day, hour and minute of its reception, and at once enter it in the proper index, and must record the same without delay, to- gether with the acknowledgments, proofs and certificates, written upon or annexed to the same, with the plats, surveys, schedule and other papers thereto annexed, in the order and as of the time when the same was received for record, and must note at the foot of the record the exact time of its re- ception, and the name of the person at whose request it was recorded. Sec. 2031. He must also indorse upon each instrument, paper or notice, the book and pages in which it is recorded. And must thereafter deliver it upon request to the party leaving the same for record, or to his order. Sec. 2032. The Recorder must, upon the application of any person, and upon the payment or tender of the fees therefor, make searches for conveyances, mortgages, and all other instruments, papers, or notices recorded or filed in his office, and furnish a certificate thereof, stating the names of the parties to such instruments, papers, and notices, the dates thereof, the year, month, day, hour, and minute they were filed, the extent to which they purport to affect the property to which thevrelate, and the book and pages where they are recorded. Bec. 2033. If any Recorder to whom an instrument, proved or acknowledged, according to law, or any paper or notice which mav by law be recorded, is delivered for rec- ord: 1. Neglects or refuses to record such instrument, paper, 263 To record decrees of partition. Filing of copy to impart notice. Two or more indexes in same volume. Comp. laws, p. 561. Recorder's duty on receipt of instrument to be recorded. Comp. laws, 561. Recorded in- struments to be indorsed. Comp. laws, 561. Recorder to make searches. Comp. laws. 561. Liable for neglect of cer- tain duties. Comp. laws, 562. Tit. XI. Ch.lII. COUNTY OFFICERS. g§ or notice within a reasonable time after receiving the same; or, 2. Records any instruments, papers, or notices untruly, or in any other manner than as hereinbefore directed; or, 3. Neglects or refuses to keep in his office such indexes as are required by this chapter, or to make the proper entries therein; or, 4. Neglects or refuses to make the searches and to give the certificate required by this chapter; or if such searches or certificate are incomplete and defective in any important particular affecting the property in respect to which the search is requested; or, 5. Alters, changes, or obliterates any records deposited in his office, or inserts any new matter therein; — he is liable to the party aggrieved for three times the amount of the dam- ages which may be occasioned thereby. ^reee8aidbe ^ec. 2034. He is not bound to record any instrument comp. laws, or file any paper or notice, or furnish any copies, or to ren- 063 • der any service connected with his office, until his fees for the same, as prescribed by law, are, if demanded, paid or tendered. Records to be Sec. 2035. All books of record, maps, charts, surveys, spIctkS.111" and other papers on file in the Recorder's office, must, dur- coinp. laws, mg office hours, be open for the inspection of any person who may desire to inspect them, and may be inspected without charge; and the Recorder must arrange the books of record and indexes in his office in such suitable places as to facili- tate their inspection. ARTICLE VII. Assessor and Tax Collector. Section 2040. Assessor and Tax Collector. Assessor, Section 2040. The Assessor must perform all tlie duties 1 ?8esU,e235.' required and imposed by law in the assessement of all prop- erty for taxation; he is ex-officio Tax Collector and is au- thorized and required to receive and collect all per capita or poll taxes, and all taxes assessed upon real and personal property as provided by law, and he has the powers pro- vided by law to enforce the collection and payment of all such taxes. ARTICLE VIII. District Attorney, Section 2050. Qualifications. 2051. When Court to appoint. 2052. Duties of District Attorney. 2053. To give receipts for money re- ceived. 2<)54. Not to be retained against the peo- ple. Section 2055. Appointment of counsel for de- fendant. 2050. Legal adviser of Commissioners. 2057. Must not act as Attorney for claims against his own county. / V Arr^vAcW^^8 Section 2050. No person is eligible to the office of Dis- ^ n>v^ X^'^4 t rict Attorney who is not an attorney and counselor at law, ^s^a^ (^y licensed to practice as such in the District Courts of the Territory; and District Attorneys must not hold any other county or any Territorial office, during their term of office as such District Attorneys. 264 j§ 2051-2053 COUNTY OFFICERS. Tit. XL Ch. 111. When court to appoint. 11 ses., 251, Duties. 11 ses., 251. When the peo- ple a party. j^yru^-u. c{jlne way; i. Bingham, six dollars per day for every day in which leis actually engaged in transacting county business, and ifteen cents per mile both ways: '■>. Bear Lake, four dollars per day for each day's services endered the county, to be paid quarterly out of the county reasury ; 5. Xez Perce, five dollars per day, and forty cents per nile from his place of residence to the county seat computed >ne way only; ('<. Oneida, six dollars per day for each day's attendance it regular sessions of the Board, and twenty cents per mile )oth ways; 269 County officers, compensation of, how paid. N. S. General pro- visions, commissioners. Comp. laws, 530. Special provis- ions, commis- sioners. 12ses., R4. Alturas . 13ses., 44. Bingham. Bear Lake. 9 ses., 87. Nez Perce. 9 ses., 109. Oneida. 11 sets, 351. TH. XL Ch. W SALARIES AND FEES OF OFFICE. §§ 2123-2126 ( )w> lire i 1 . Washington. ■ ,201 Penalty for Don- attendance Comp. lav. a, 530. Fees of clerk of proDato court. Sheriff's fees, service of pro- cess. Levy, arrest, delivery of per- sonal property. Coinp. laws, f>33. K eeper . 'I'ii king bauds. Copies. Notico, etc., posting and advertising. 'Writ of resti- tution . ; . ( ) w y bee, t wo hundred and fifty dollars, and forty cents per mile one way: s. Washington, one hundred and fifty dollars, and ten cents per mile both ways, but if any Commissioner fails to attend any day of any regular, special or adjourned session of the Board, six dollars must be deducted from his salary or com- pensation for each day's non-attendance. Sec. 2123. Probate Courts must receive no other com- pensation or fees from the county, but for other services may receive fees to be paid by the party for whom the ser- vices are performed as follows : In civil actions where the debt or sum claimed does not exceed three hundred dollars, the Judge or Clerk of the Pro- bate Court may receive the same fees as are allowed by law to Justices of the Peace for the same services; in other civil actions the same fees allowed the Clerk of the District Court for the same services. Eor issuing letter testamenta- ry, or of administration, or of guardianship, fifty cents; for writing and posting all the required copies of each notice required to be posted, fifty cents; for each notice including all the copies for publication and posting, in addition to the costs of publication, fifty cents; for recording wills or other papers required by law to be recorded, for each folio, twen- ty-five cents ; for copies of all papers or proceedings in the Probate Court, including certificate and seal when required, for each folio, twenty cents; for entering each order for each folio, twenty-five cents; for all other services the same fees as are allowed the Clerk of the District Court for like services; Provided, That if, upon the filing of the appraise- ment of any estate it appears that the whole estate is not of the value of one thousand dollars, no further Clerk's fees must be charged. Sec. 2126. The Sheriff is allowed and may demand and receive the fees hereinafter specified: 1. For serving a summons and complaint, or any other process and return thereon by which an action or proceed- ing is commenced, on each defendant, one dollar; 2. For serving an attachment on property, or levying an execution, or executing an order of arrest, or order for the delivery of personal property, one dollar; 3. For his trouble and expense in taking and keeping possession of and preserving property under attachment or execution, or other process, such sum as the Court may or- der, provided that no more than three dollars per diem be allowed to a keeper; 4. For taking bond or undertaking in any case in which he is authorized to take the same, fifty cents ; 5. For copy of any writ, process or other paper, when demanded or required by law, for each folio, twenty cents; c>. For serving every notice, rule or order, fifty cents; 7. Formaking and posting notices, and advertising prop- erty for sale on attachment or execution, or under anv judg- ment or order of sale, exclusive of the costs of publication, each notice, twenty-rive cents per folio; 8. For serving a writ of possession or restitution, putting a person in possession of premises and removing the occu- pant, three dollars; 270 2126 SALARIES AND FEES OF OFFICE. Tit. XL Ch.1V. 9. For holding each inquest, a trial of right of property, to include all services in the matter except milage, three dollars: 10. For serving a subpoena, for each witness summoned, thirty cents; 11. For commissions for receiving and paying over mon- ey on execution or other process, when land or personal property has been levied on and sold, on the first one thou- sand dollars, two per cent; on all sums above that amount, one per cent. ; but in no case of sale of real estate shall his commission exceed one hundred dollars, and when the amount of such sale is credited on the debt and no money is transferred, then one-half of such commission; 12. For commissions for receiving and paying over money on execution without levy, or where lands or goods levied on are not sold, on the first one thousand dollars, one and one-half per cent; and one-half of one per cent on all over that sum, but not to exceed in any case fifty dollars. The fees herein allowed, for the levy of an execution, costs for advertising and percentage for making or collecting the money on execution, must be collected from the judgment debtor by virtue of such execution, in the same manner as the sum therein directed to be made; 13. For drawing and executing a Sheriff's deed, includ- ing the acknowledgment, to be paid by the grantee before delivery, three dollars; 14. For executing a certificate of sale exclusive of the filing and recording of the same, one dollar; 16. For making every arrest in a criminal proceeding, two dollars; 18. For summoning each trial juror, twenty-five cents; 21. For serving a subpoena in a criminal action or pro- ceeding, for each witness summoned, twenty-five cents; 23. For traveling, to be computed in all cases from the court house, to serve any summons and complaint, or any other process by which action or proceeding is commenced, notice, rule, order, subpoena, venire, attachment on proper- ty, to levy an execution, to post notice of sale, to sell property under execution or other order of sale, or execute an order of arrest, or order for the delivery of personal prop- erty, writ of possession or restitution, to hold inquest or trial of right of property, for each mile actually and neces- sarily traveled, in going only, twenty cents; for traveling to execute any warrant of arrest, subpoena, venire or other process in criminal cases, or for taking a prisoner from prison before a court or magistrate, or for taking a prisoner from the place of arrest to prison or before a court or mag- istrate, for each mile actually and necessarily traveled, in going only, twenty cents; for each additional prisoner taken at the same time, fifteen cents per mile; but if any two or more papers be required to be served in the same action or proceeding, civil or criminal, or be in the possession of the Sheriff for service at the same time and in the same direc- tion, one mileage only shall be charged; and in serving a subpoena, venire, process or paper, when two or more jurors, witnesses, parties or persons to be served reside or are found in the same direction, traveling fees must be charged only for the most distant: and only one mileago per day must be 271 Trial of right of property. Subpoena . Commissions for receiving and paying over money after sale. Same, without sale. Costs collected of the judg- ment debtor . Sheriff's deed. Certificate of sale. Arrest. Trial jurors. Subpoena in criminal action . Mileage . Recorder and auditor. Comp. laws, 504. 11 ses.. J64. 13 ses., 138. Recorder and auditor, general pro. visions. County sur- veyor, fees of . Comp. laws, 795. Tit AT. Ch. IV. SALARIES AND FEES OF OFFICE. .§§ 2128-2132 Recorder und auditor. Oomp. laws, 5t>4. 11 866., 264, 13 ses., 138. Recorder and audit- r, general provisions. County survey- or, fees of. Comp. laws, 795. UiXuh \S~ 0-tyYO charged for taking a prisoner from prison before a court or magistrate: and constructive mileage must in no case be charged or allowed. For all services arising in Justices' courts, the same fees as are allowed to Constables for like services. Sec. 2128. The County Recorder and Auditor, is al- lowed, and may receive for his services the following fees and compensation, to be paid him, by the party procuring his services as Recorder: For filing, indorsing and indexing every instrument, paper or notice, when to be recorded, twenty-five cents; and for similar services, when the instrument, paper, or notice is not for record, but to be kept on file, fifty cents; for record- ing every instrument, paper or notice, for each folio, twenty cents ; for copies of any record or paper, for each folio, twenty cents; for each certificate under seal, when required, fifty cents; for abstract of title, including searching the records therefor, for each conveyance or incumbrance certified, fifty cents; for entry of discharge of mortgage or other instru- ment on the margin of the record, witnessing and indexing the same, twenty-five cents; for recording every town plat or map, for first one hundred lots or less, three dollars and fifty cents, and for each additional lot, one cent; for taking acknowledgments, including seal, fifty cents; for filing, re- cording, and indexing marriage certificates, one dollar; for administering to the locator the oath, and certifying the same on the location notice of a mining claim, and for filing, recording and indexing each notice, two dollars, which must be divided equally between him and his mining deputy, who receives such notice; for recording each mark or brand, fifty cents; for administering an oath, including jurat, twenty- five cents; and certifying same when required, twenty-five cents additional; for all other services as Recorder not enum- erated herein the same fees allowed the Clerk of the district court for like services. As Auditor: He is allowed and may receive when not otherwise pro- vided by law, fees as follows : For administering an oath including jurat, if required, twenty-five cents. Sec. 2132. The County Surveyor is allowed and may demand and receive for his services of the party for whom performed, the following fees: For the first mile actually run with compass and chain, in bush or wood, five dollars, and for each succeeding mile three dollars; and for the same services in open, clear land, three dollars for the first mile and two dollars for each suc- ceeding mile; for each mile run with compass alone, one- half the fee above; for each lot laid out and platted in any city or town, one dollar; for each copy of a plat of survey and certificate, two dollars; for calculating the quantity of every tract of land or sub-division thereof, except town lots, one dollar; for calculating the quantity of every tract of land not divided, one dollar; for traveling to the place of survey, for each mile in going only, forty cents; for ascer- taining the location of every town lot in an old survey and measuring and marking the same, three dollars; for copies and certificates, per folio thirty cents; for erecting a mon- 272 §§2133-2136 SALARIES AND FEES OF OFFICE. Tit. XL Gh.TV. ument at the corner of any survey when required, fifty cents; the expense of assistants is an additional charge to be agreed upon between the parties, or to be allowed by any court or Board of Commissioners ordering the survey. In the county of Cassia in addition to the fees allowed by law, the County Surveyor must receive an annual salary of two hundred dollar^. Sec. 2133. The Coroner must receive from the county for his services fees as follows: For all services in summoning a jury of inquest, five dol- lars; for swearing the jury, fifty cents; for each mile trav- eled from his residence to the place of the dead body and re- turning home, twenty cents; for issuing subpoenas, twenty- five cents; for swearing each witness, twenty-five cents; for taking down the testimony of witnesses, for each folio, twenty-five cents; for issuing each warrant of arrest, fifty cents; for attending to the burial of the dead body, when required by law, ten dollars; for all services rendered when acting as Sheriff, the same fees allowed to Sheriffs for simi- lar services. Sec. 2135. A Justice of the Peace may charge, demand and receive the following fees for services performed in dis- charge of the duties imposed upon him by law : For filing each paper, fifteen cents; for issuing any sum- mons, writ or process by which action is commenced, fifty cents; for entering such cause on his docket, including all docket entries before judgment, fifty cents; for subpoena to witness,twenty-five cents; for administering an oath or affirm- ation, including jurat and certificate, fifteen cents; for issu- ing writ of attachment, or of arrest, or for delivery of prop- erty, one dollar; for entering any final judgment, for each folio, twenty-five cents; for taking and approving any bond or undertaking directed by law to be taken or approved by him, fifty cents; for taking justification to bond or under- taking when required by law, after exception to sureties, fifty cents; for swearing a jury, fifty cents; for taking de- position per folio, twenty cents; for entering satisfaction of judgment, twenty-five cents; for copy of judgment, order, docket, proceedings, or paper in his office, per folio, twenty cents; for issuing commission to take testimony, fifty cents; for making up and transmitting transcript and papers on appeal, two dollars; for making up and transmitting papers on change of venue, including copy, certificate and order, one dollar; for issuing search warrant, fifty cents; for issu- ing an execution, fifty cents; for celebrating marriage and returning certificate to the Recorder, five dollars; for all ser- vices and proceedings before a Justice of the Peace, in a criminal action or proceeding on examination, when an ex- amination is not waived, or trial upon an issue of fact, six dollars; when an examination is waived or there is a plea of guilty, three dollars: for taking bail after commitment in criminal cases, fifty cents; for entering an action without process, fifty cents: for entering judgment by confession and only an affidavit as required in the District Court, in full for all services before execution, one dollar. Sec. 2136. A Constable is allowed and may collect and coustabiea, receive for any services required of him by law, fees as fol- n^/'iaws lows: 571-572. - • 18 273 Tit. XI Ch. IV. SALARIES AND FEES OF OFFICE. 5§ 2137-2142 Officer to per- form service when fees are paid . For serving summons in civil cases, for each defendant, fifty cents; for summoning a jury before a Justice of the Peace, one dollar and fifty cents; for taking a bond required to be taken, fifty cents; .for summoning each witness, twenty -five cents; for serving an attachment against the property of the defendant, one dollar; for receiving and taking care of property on execution, attachment or order, his actual necessary disbursements and expenses to be allowed by the Justice who issued the process, up- on satisfactory proof that such charges are correct, not to exceed two dollars per day; for collecting all sums of money on execution, three per centum to be charged against the defendant in the execution; for serving a warrant or or- der for the delivery of personal property or making an arrest in civil cases, one dollar; Constables must receive the same mileage for each mile necessarily traveled, in going only, as Sheriffs are authorized to receive in similar cases; for services and travel in .criminal cases, the same fees as Sher- iffs are authorized to receive for like services; for all other services, except attending court, the same fees as are al- lowed Sheriffs for similar services. Sec. 2137. The officers mentioned in this Title are not in any case, except for the Territory or county, to perform any official services unless upon the prepayment of the fees prescribed for such services except as in the succeeding sec- tion provided by law; and on such payment the officer must perform the services required. For every failure or refusal to perform official duty when the fees are tendered, the offi- cer is liable on his official bond. Sec. 2138. No fee or compensation of any kind must be charged or received by any officer for duties performed or services rendered in proceedings upon habeas corpus. Sec. 2139. Every officer whose fees are herein ascer- tained must publish and set up in his office fair tables of his fees, according to this Title, within one month after he en- ters upon the duties of his office, in some conspicuous place, for inspection of all persons who have business in his office, upon pain of forfeiting for each day, a sum not exceeding twenty dollars, which may be recovered by any person by action before any Justice of the Peace of the same county, with costs. Sec. 2140. If any Clerk, Sheriff, Justice of the Peace, or Constable shall not have received any fees which may be due him for services rendered in any suit or proceeding, he may have execution therefor, in his own name against the party from whom they are due, to be issued from the court in which the action is pending. Sec. 2141. The term ' 'f olio", when used as a measure for computing fees or compensation, shall be construed to mean one hundred words, counting every three figures necessarily used as a word. Any portion of a folio, when in the whole draught or paper, should there not be a complete folio, and when there should be an excess over the last folio exceeding a quarter, shall be computed as a folio. The filing of a pa- per shall be construed to include the certificate of the same HiS.ec. 2142. "When any Sheriff, Constable, or Coroner, seivcs more than one process in the same case, not requir- 274 No charge cm proceedings under habeas corpus. Tables of fees. Kxecutiou of fei Folio, how construed. Mileage §§ 2143-2148 SALARIES AND FEES OF OFFICE. Tit. XL Ch. IV, ing more than one journey from his office, he shall receive mileage only for the most distanfcrservice. Sec. 2143. No counselor or attorney at law in any case shall be allowed any fees for attendance as a witness in any such cause. Sec. 2 1 44. Every officer upon receiving any fees for offi- cial duty or services, may be required by the person making the same to make out in writing and deliver to such person a particular account of such fees, specifying for what they respectively accrued and shall receipt for the same; and if he refuses or neglect to do so, when required, or shall receive illegal fees, he shall be liable to the party paying for three times the amount so paid. Sec. 2145. Officers whose fees and compensation are set forth in this Title, shall not be entitled to charge or re- ceive any fees, compensation, or salary not herein enumer- ated and provided for. Sec. 2146. The Attorney-General or any district attor- ney is authorized to cause subpoenas to be issued and com- pel the attendance of witnesses on behalf of the Territory, without paying or tendering fees in advance to any officers or witnesses; and any witness failing or neglecting to at- tend, after being served with a subpoena may be proceeded against and shall be liable in the same manner as provided by law in other cases when fees have been tendered or paid. Sec. 2147. (Sec. 1.) For the purpose of regulating the compensation of certain county, precinct and district officers within the several counties of Idaho Territory, the counties are classified according to their valuation, based upon the assessment roll for the year A. D. 1886, as follows, to wit: First Class: All counties having a valuation of three million two hun- dred and fifty thousand ($3,250,000) dollars and over, shall belong to and be known as counties of the First Class. Second Class: All counties having a valuation of two million ($2,000,000) dollars, and under three million two hundred and fifty thousand ($3,250,000) dollars, shall belong to and be known as counties of the Second Class. Third Class: All counties having a valuation of one million ($1,000,000) dollars and under two million ($2,000,000) dollars, shall be- long to and be known as counties of the Third Class. Fourth Class : All counties having a valuation of five hundred thousand (*.">00,000) dollars and under one million ($1,000,000) dollars, shall belong to and be known as counties of the Fourth Class. Fifth Class: All counties having a valuation of less than five hundred thousand ($500,000) dollars, shall belong to and be known as counties of the Fifth Class. Sec. 2148. (Sec. 2.) All counties created or organizer after the passage of this act shall immediately come under and be governed by its provisions so far as the same are ap- plicable thereto, Provided, That all newly created counties 275 No fees as witness, who. Receipt for fees. No other com- pensation. Witness fees. Salaries of county officers, classification of counties. First class. Second class. Third class. Fourth class. Fifth class. New counties. IT. Ch. IV. SALARIES AND FEES OF OFFICE. S§ 2149-2152 i . liow .!• termined, County ollici i s. Compensation fixed by com- missioners, No other com. pensation. First-class sheriffs. Allowance for ing prison. order )u.d audil shall for the purposes of fixing- the compensation of county, precind and district officers enter the class of counties hav- ing a valuation of loss tlian five hundred thousand ($500,000) dollars. Sec. 2149. (Sec. 3.) It shall be the duty of the County Commissioners of the several counties of this Territory now created or hereafter created at their regular meeting in Jan- uary of each year, after the year A. D. 1887, to designate by an order entered upon their minutes, the class to which their said county belongs, which shall be ascertained by the assessment roll of such county for the year immediately preceding such meeting, and such county shall enter the list of such class so designated. Sec. 2150. (Sec. 4.) The officers of a count v are: 1 . A Sheriff. 2. A Recorder, who shall be ex-officio auditor and ex-offi- cio clerk of the Board of County Commissioners. 3. An Assessor who shall be ex-officio tax collector. 4. A Probate Judge. 5. A District Attorney. (J. A County Treasurer, who shall be ex-officio Public Ad- ministrator. 7. A Superintendent of Schools. 8. A Surveyor. 9. A Coroner. 10. Three members of the Board of County Commission- ers. Sec. 2151. (Sec. 5.) It shall be the duty of the Board of County Commissioners of each county at their regular meeting in April, A. D. 1887, and thereafter at their regular meeting in January of each year to fiJL the compensation of the several county, precinct and district officers of their county hereafter named, which in no case shall be less than the lowest amount designated for such officer, and which in no case shall be in excess of the highest amount designated for such officer as herein after designated, and the compensa- tion so fixed by said Board shall be the only compensation of such officer for all services required of such officer by virtue of his office, rendered or performed for his said county. Sec. 2152. (Sec. 6.) In the counties of the first class: The Sheriff shall receive a salary of not less than four thousand ($4,000) dollars per annum, and not to exceed six thousand ($6,000) dollars per annum; he shall be allowed in addition to such salary as fixed by said Board, the sum of not less than one (1) dollar, nor more than one (1) dollar and fifty (50) cents per day for each prisoner confined in the county jail, as remuneration in full for the board, clothing, lights and medical attendance of such prisoner; he shall be allowed a jailer, for whose services he shall be allowed the sum of not less than two (2) dollars and fifty (50) cents, nor more than three (3) dollars and twenty-five (25) cents per day for each day a prisoner or prisoners are confined in the county jail of his county. The Recorder the sum of not less than nine hundred ($900.- 00) dollars per annum, and not to exceed twelve hundred (si, 200.00) dollars per annum as Recorder, ex-officio Auditor and ex-officio Clerk of the Board of Countv Commissioners. 276 § 2153 SALARIES AND FEES OF OFFICE. Tit. XL Ch.lV. The Assessor not less than twelve (12) per centum and not to exceed fifteen (15) per centum of all per capita and hospital taxes collected, and not less than three (3) per centum, and not to exceed six (6) per centum of all other taxes by him collected. The Probate Judge the sum of not less than eight hundred ($800.00) dollars per annum, and not to exceed fifteen hun- dred ($1,500.00) dollars per aunum. The District Attorney the sum of not less than twenty-five hundred ($2,500.00) dollars per annum, and not to exceed five thousand ($5,000.00) dollars per annum. The County Treasurer the sum of not less than seven hun- dred ($700.00) dollars per annum, and not to exceed one thousand (81,000.00) dollars per annum. The Superintendent of Schools, the sum of not less than five hundred ($500.00) dollars per annum, and not to exceed nine hundred ($900.00) dollars per annum. The Clerk of the District Court, the sum of not less eight hundred ($800.00) dollars per annum, and not to exceed twelve hundred ($1,200.00) dollars per annum. Each Road Supervisor within the county the sum of not less than two (2) dollars and fifty (50) cents per day, and not to exceed four (4) dollars per day for each day that he is nec- essarily engaged in the performance of the duties required of him by virtue of his office. Sec. 2153. (Sec. 7.) In the counties of the second class: The Sheriff shall receive a salary of not less than two thou- sand five hundred (82,500.00) dollars per annum, and not to exceed three thousand five hundred ($3,500.00) dollars pel- annum; he shall also be allowed in addition to such salary as fixed by said Board the sum of not less than one (1) dol- lar, nor more than one (1) dollar and fifty (50) cents per day for each prisoner confined in the county jail, as remunera- tion in full for the board, clothing, lights and medical at- tendance of such prisoner; he shall also be allowed a jailer for whose services he shall be allowed the sum of not less than two (2) dollars and fifty (50) cents, nor more than three (3) dollars and twenty-five (25) cents per day, for each day a prisoner or prisoners are confined in the county jail of his county. TheRecorder the sum of not less than eight hundred ($8l M ). - 00) dollars per annum, and not to exceed one thousand ($1,- 000.00) dollars per annum as Recorder, ex-officio Auditor and ex-officio Clerk of the Board of County Commissioners. The Assessor not less than twelve (12) per centum and not to exceed fifteen (15) per centum of all per captia taxes col- lected, and not less than four (4) per centum and not to ex- ceed six (6) per centum of all other taxes by him collected. The Probate Judge the sum of not less than six hundred •0.00) dollars per annum, and not to exceed nine hundred ($900. 00j dollars per annum. The District Attorney the sum of not less than two thou- sand ($2,000.00) dollars per annum, and not to exceed twen- ty-five hundred ($2,500.00) dollars per annum. The County Treasurer the sum of not less than six hun- dred ($000.00) dollars per annum, and not to exceed oi^l it hundred ($800.00) dollars per annum. The Superintendent of Schools the sum of not less than Assessor. Probate judge. Dist. attorney. County treasur- er. School superin- tendent. Clerk district court. Road supervisor. Second-class, sheriffs . Allowance for keeping prison- ers Jailor. 277 Recorder and auditor. Assessor. Probate judge. Dist. attorney. County treas- School superin- tendent. Tit. XI. Ch. TV. SALARIES AND FEES OF OFFICE. §§ 2154-2155 f ■list. i Bupervi- Third-class sheriff. Allowance for keeping prison- Tailor. Recorder and auditor. Assessor. Probate judge. Dist. attorney. County treas- urer. School suporin- intcudent. • Clerk dist. court. supervisor. Fourth class bhree hundred (8300.00) dollars per annum, andnotto exceed six hundred (*G00.00) dollars per annum. Tlie Clerk of the District Court the sum of not less than six hundred (8000.00) dollars per annum, and not to exceed eight hundred ($800.00) dollars per annum. Each Road Supervisor within the county the sum of not less than two (2) dollars and fifty (50) cents per day, and not to exceed the sum of four (4) dollars per day for each day that he is necessarily engaged in the performance of the duties re- quired of him by virtue of his office. Sec. 2154. (Sec. 8.) In the counties of the third class: The Sheriff shall receive a salary of not less than seven- teen hundred ($1,700.00) dollars per annum, and not to exceed twenty-five hundred ($2,500.00) dollars per annum; he shall also be allowed in addition to such sallary as fixed by said Board the sum of not less than one (1) dollar nor more than one (1) dollar and , fifty cents per day for each prisoner confined in the county jail as remuneration in full for the board, clothing, lights and medical attendance of such pris- oner; he shall be allowed a jailer for whose services he shall be allowed the sum of not less than two (2) dollars and fifty (50) cents, nor more than three (3) dollars and twenty-five (25) cents per day for each day a prisoner or prisoners are confined in the county jail of his county. The Recorder the sum of not less than seven hundred ($700) dollars per annum, and not to exceed nine hundred ($900) dollars per annum as Recorder, ex-officio Auditor and ex-officio Clerk of the Board of County Commissioners. The Assessor not less than twelve (12) per centum and not to exceed fifteen (15) per centum of all per capita taxes col- lected, and not less than four (4) per centum and not to ex- ceed six (6) per centum of all other taxes by him collected. The Probate Judge, the sum of not less than five hundred ($500) dollars per annum, and not to exceed seven hundred ($700) dollars per annum. The District Attorney, the sum of not less than one thous- and ($1,000) dollars per annum, and not to exceed fifteen hundred ($1,500) dollars per annum. The County Treasurer the sum of not less than five hun- dred ($500) dollars per annum, and not to exceed seven hun- dred ($700) dollars per annum. The Superintendent of Schools, the sum of not less than three hundred ($300) dollars per annum, and not to exceed five hundred ($500) dollars per annum. The Clerk of the District Court, the sum of not less than three hundred ($300) dollars per annum, and not to exceed five hundred ($500) dollars per annum. Each Road Supervisor within the county the sum of not less than two (2) dollars and (50) cents per day, and not to exceed the sum of four (4) dollars per day, for each day that he is necessarily engaged in the performance of the duties required of him by virtue of his office. Sec. 2155. (Sec. 9.) In the counties of the fourth class: The Sheriff shall receive a salary of not less than twelve hundred ($1,200) dollars and not to exceed two thousand ($2,000) dollars per annum; he shall also be allowed in addition to such salary as" fixed by said Board the sum of not less than 278 §2156 SALARIES AND FEES OF OFFICE. Tit. XL Ch. IV one (1) dollar nor more than one (1) dollar and fifty (50) cents per day for each prisoner confined in the county jail, as re- muneration in full for the board, clothing, lights and medical attendance of such prisoner; he shall be allowed a jailer for whose services he shall be allowed the sum of not less than two (2) dollars and fifty (50) cents nor more than three (3) dollars and twenty-five (25) cents per day for each day a prisoner or prisoners are confined in the county jail of his county. The Recorder the sum of not less than five hundred ($500) dollars per annum, and not to exceed eight hundred ($800) dollars per annum as Recorder, ex-officio Auditor, and ex- officio Clerk of the Board of County Commissioners. The Assessor not less than twelve (12) per centum, and not to exceed fifteen (15) per centum of all per capita taxes collected, and not less than (5) per centum, and not to ex- ceed seven (7) per centum of all other taxes by him collect- ed. The Probate Judge the sum of not less than three hundred ($300) dollars per annum, and not to exceed five hundred ($500) dollars per annum. The District Attorney the sum of not less than eight hun- dred ($800) dollars per annum, and not to exceed twelve hun- dred ($1,200) dollars per annum. The County Treasurer the sum of not less than three hun- dred ($300) dollars per annum, and not to exceed five hun- dred ($500) dollars per annum. The Superintendent of Schools the sum of not less than two hundred ($200) dollars per annum, and not to exceed three hundred ($300) dollars per annum. The Clerk of the District Court the sum of not less than three hundred ($300) dollars per annum, and not to exceed five hundred ($500) dollars per annum. Each Road Supervisor within the county the sum of not less than two (2) dollars and fifty (50) cents per day, and not to exceed the sum of four (4) dollars per day for each day that he is necessarily engaged in the performance of the duties required of him by virtue of his office. Sec. 2156. In the counties of the fifth class: The Sheriff shall receive a salary of not less than twelve hundred ($1,200) dollars per annum, and not to exceed fifteen hundred ($1,500) dollars per annum; he shall also be allowed in addition to such salary as fixed by said Board the sum of not less than one (1) dollar, nor more than one (1) dollar and fifty (50) cents per day for each prisoner confined in the county jail as remuneration in full for the board, clothing, lights and medical attendance of such prisoner; he shall be allowed a jailer for whose services he shall be allowed the sum of not less than two (2) dollars and fifty (50) cents, nor more than three (3) dollars and twenty-five (25) cents per day for each day a prisoner or prisoners are confined in the county jail of his county. The Recorder the sum of not less than four hundred ($400) dollars per annum, and not to exceed six hundred ($000) dollars per annum, as Recorder, ex-officio Auditor and ex- officio Clerk of the Board of County Commissioners. The Assessor, not less than twelve ( 1 2) per centum, and not to exceed fifteen (15) per centum of all per, capita taxes col- lected, and not less than five (5) per centum, and not to ex- 279 sheriff's allow- ance for keeping prisoners . Jailor. Recorder and auditor. Assessor. Probate judge. Dist. attorney. County treas- urer. School superin- tendent. Clerk dist , court. Road super- visor. Sheriffs, fifth- class allowance for keeping pris- oners. Jailer. Recorder and auditor. Assessor. Tit XL Ch. IV. SALARIES AND FEES OF OFFICE. £§ 2157-2158 Probt Diet, attorney. County treas* arer. School superin- tendent. Clerk diet. court. Road super- visor. Other salary and fees. Treasurer. Sheriff to collect licenses. School superin- tendent, travel- ing expenses. Dist. attorney, from territory. Mileage. Deputy. Territorial moneys. Dist. attorneys, duties of. Duties ol sher- iff. Penalty. Balarles paid quarterly. ceed seven (7) per centum of all other taxes by him col- lected. The Probate Judge, the sum of not less than two hundred (*200.00) dollars per annum, and not to exceed four hundred ($400. 00 j dollars per annum. The District Attorney, the sum of not less than six hundred ($600.00) dollars per annum and not to exceed nine hundred ($900.00) dollars per annum. The County Treasurer, the sum of not less than three hun- dred (8300.00) dollars per annum, and not to exceed four hundred ($400.00) dollars per annum. The Superintendent of Schools, the sum of not less than one hundred ($100.00) dollars per annum, and not to exceed two hundred ($200.00) dollars per annum. The Clerk of the District Court, the sum of not less than two hundred and fifty ($250.00) dollars per annum, and not to exceed four hundred ($400.00) dollars per annum. Each Road Supervisor within the county, the sum of not less than two (2) dollars and fifty (50) cents per day, and not to exceed the sum of four (4) dollars per day for each day that he is necessarily engaged in the performance of the duties required of him by virtue of his office. Sec. 2157. (Sec. 11.) None of the officers, mentioned in sections six (6), seven (7), eight (8), nine (9), and ten (10) of this act, shall receive any salary or fees from their coun- ty, for services rendered, except: First. The Treasurer shall receive the fees now allowed by law as public administrator; Second. The Sheriff shall receive six (6) per centum for collecting county and Territorial licenses, and he shall col- lect such licenses; Third. The Superintendent of Schools shall be allowed his actual and necessary traveling expenses in visiting the schools of .his county once each year; Fourth. The District Attorney shall be allowed three hundred ($300.00) dollars per annum, to be paid by the terri- tory, also twenty-five (25) cents per mile one way for travel- ing to attend felony examinations before committing magis- trates, and in counties of the first class, if the commissioners deem proper, they may permit him to appoint a deputy or deputies, at a cost to the county of not to exceed one thous- and ($1,000.00) dollars per annum; Fifth. The County Auditors and Treasurers shall receive three (3) per centum on all territorial money collected .in their counties; Sixth. It shaU be the duty of the District Attorney to at- tend all felony examinations, and all trials, and investiga- tions before the grand jury, in the district court, and to per- form all other duties now required of him by law; Seventh. It shall be the duty of the Sheriff to serve all process delivered to him or at his office for service, and if he refuse to do so, then the cost of serving all process in favor of the people of the United States in the Territory of Idaho, must be deducted from his salary. Sec. 2158. (Sec. 12.) The compensation herein men- tioned and provided for the officers named in this act, shall be paid quarterly out of the county treasury upon the Audi- tor's warrant, after the same has been allowed by the Board 280 §§ 2159-2161 OTHER COUNTY CHARGES. Tit XL Gh. V. Other officers, compensation of. of County Commissioners, and such warrant shall be drawn upon the "Current Expense" or "County General" fund of the county. Sec. 2159. (Sec. 13.) The Surveyor, Coroner and mem- bers of the Board of County Commissioners, each Justice of the Peace and Constable within the county, shall receive the salary and fees now allowed by law, and nothing in this act shall in any manner affect the compensation of the offi- cers mentioned in this section. Sec. 2159«. (Sec. 14.) All acts and parts of acts in conflict with the provisions of this act are hereby repealed. [Act Feb. 7, 1887. In effect April 11, 1887.] Repealing clause. CHAPTER V. Other County Charges. Section 2160. County charges to be audited. ! Section j 2161. Examination of county charges. Section 2160. Accounts for county charges of every description must be presented to the Board of County Com- missioners to be audited as provided by law. Sec. 2161. The following are county charges : 1. Charges incurred against the county by virtue of any provision of this Title; 3. The compensation allowed by law to constables for executing process on persons charged with criminal of- fenses; for services and expenses in conveying criminals to jail; for service of subpoena issued by or at the request of the District Attorneys, and for other services in relation to criminal proceedings for which no specific compensation is prescribed by law; 4. The expenses necessarily incurred in the support of persons charged with or convicted of crimes and committed therefor to the county jail; 5. The sums required by law to be paid to Grand Jurors and indigent witnesses in criminal cases; 6. The accounts of the Coroner of the county for such ser- vices as are not provided to be paid otherwise; 7. All charges and accounts for services rendered by any Justice of the Peace for services in the examination of per- sons charged with crime not otherwise provided for by law ; 8. The necessary expenses incurred in the support of county hospitals, and the indigent sick and the otherwise dependent poor whose support is chargeable to the county: 9. The contingent expenses necessarily incurred for the use and benefit of the county; 10. Every other sum directed by law to be raised for any county purpose under the direction of the Board of Couniy Commissioners, or declared to be a county charge 281 Couuty charges to be audited. Examination of county charges. '■''. VI. THE COUNTY POOR. §§ 2170-2174 CHAPTER VI. The County Poor. Contract for maintenance poor. Comp. laws, 853. County phy- sician. I2 8e8.,80. Work. Keeper to keep accts. and to report. 12 368., S<>. A plication for county aid. 13B68., 127. Duty of officer to whom applica tion ia made 13 soh , 127. SKCTION 2170. Contract for maintenance of poor.' 2171. County physician. Work. 2172. Keeper of, to keep accounts. 2173. Application for county aid. 2174. Duty of officer to whom application is made. 2175. Duty of County Commissioners . Section 2 17(3. No claim allowed without certificate. 2177. Application by third party. 2178. When discharged. 2179. Treatment of inmates . 2180. Hospital tax; collection and dis- bursement. 2181. Hospital tax , receipts . Section 2170. The Board of County Commissioners, in their respective counties, may contract for the care, protec- tion and maintenance of the indigent sick, or otherwise de- pendent poor of the county. They must require the con- tractor to enter into a bond to the county with two or more approved sureties, in such sum as the Board may fix, condi- tioned for the faithful performance of his duties and obliga- tions as such contractor, and require him to report to the Board quarterly all persons committed to his charge, show- ing the cause and nature of their confinement and the ex- pense attendant upon their care and maintenance. Sec. 2171. The Board must employ a physician to at- tend, when necessary, upon the inmates of the poor-house or county hospital. They must provide for the employment at some kind of manual labor of such of the inmates as are capable and able to work, and the attending physicians must certify to the keeper or lessee of the poor-farm the names of such of the inmates as are incapable of manual la- bor and when any such inmate becomes capable the physi- cian must certify the fact. Sec. 2172. The keeper of the county poor-farm, poor- house or hospital must keep a correct account of all receipts and expenditures in connection therewith and make full and complete reports thereof quarterly to the Board of County Commissioners. Sec. 2173. Any sick or indigent person desiring aid from any county of this Territory, must, before such aid can be given, make a written application to the Probate Judge, the Clerk of the Board of County Commissioners or to any Justice of the Peace in the precinct where such ap- plicant may reside, setting forth and describing all the prop- erty, real, personal and mixed, wherever it is situated, own- ed in whole or in part by such applicant, or in which he or she has any legal or equitable interest; if such applicant have no available property, real or personal, then he must declare his indigency and destitution, which nrust be signed by the party or parties making such application and sworn to before some officer authorized by the laws of this Terri- tory to administer oaths and filed in the office of the Clerk of the Board of County Commissioners. Sec. 2 1 74. It is the duty of the Probate Judge, Clerk of the Board of County Commissioners, or the Justice of the Peace to whom such application is made, to immediately investigate the grounds of such application and for such purpose he may require the applicant and such other per- sons as may be deemed necessary,to testify under oath, and if such officer is full v satisfied that said applicant is really sick, 282 S 2175-2179 THE COUNTY POOR Tit. XL Ch. VI. Duty of county commissioners. 13 sea., 128. No claim allow- ed without cer- tificate. 13 868., 128. indigent and in destitute circumstances, and would suffer un- less aided by the county, he must file a certificate to that effect with the Clerk of the Board of County Commissioners of such county, and in case said Board of County Commission- ers is not in regular session at the time of the date of such cer- tificate, the officer to whom said application is made may, in his discretion, authorize the applicant to be placed in the poor-house or hospital of the county, or, if the county is not provided with a poor-house or hospital, he may authorize the expenditure of any sums not exceeding the sum of forty dollars in the aggregate, to provide for the immediate ne- cessities of such applicant, and must present his bill for such expenditure to the Board of County Commissioners du- ly verified under oath and the Board must audit and pay such bill out of the proper fund of such county at their next regular session. Sec. 2175. That the County Commissioners of such county must, after the filing of the certificate as aforesaid, if in their judgment the applicant is sick and indigent, and would suffer if not aided by the county, make such provis- ions for his relief as may be necessary under the circum- stances. Sec. 2176. That the County Commissioners must not allow any claim or demand against the county for services rendered to any sick or indigent person who has not pre- viously obtained from the Probate Judge, Clerk of the Board of County Commissioners or the Justice of the Peace, as aforesaid, the certificate heretofore mentioned, and must not allow any claim or demands whatsoever against the county for any expense incurred by, or in behalf of, any sick or indigent person before the filing of the application and certificate aforesaid. Sec. 2177. That if any sick and indigent person or per- sons, desiring assistance from any county in this Territory, is unable from illness to make the application in writing re- quired in this chapter, such application may be made for him or on his behalf, by any other person under oath. Sec. 2178. Every person admitted to the county poor- house or hospital, must be discharged therefrom by the keeper: First, at his own request, if capable of taking care of him- self, or if his friends or relatives are willing to take care of him. Secondly, whenever, in the judgment of the keeper and attending physician, the person is capable of supporting himself; but in such case the County Commissioners have the power to revise the act of the keeper and attending phy- sician, and can return a person, who, in their judgment, has been improperly discharged, or may discharge any one that in their judgment, should no longer be an inmate of the poor-house or hospital. Sec. 2179. The treatment of all inmates of the poor- house and hospital must be kind and humane; they must be supplied with comfortable clothing, sufficient bedding and plain, substantial food, and must not be required to perform labor to an extent that is detrimental to health; but the keeper has power to compel those who are able to perform labor, to perform the same by reasonable and humane coer- cion. Application by- third party . 13 868., 128. When dis- charged . 12ses., 81. Treatment of inmates. 12 sob., 81. 293 Tit. XL Ch. VI. THE COUNTY POOR. 2180-2181 hoiv oolleoted and dial) Coin]>. Lai Hospital tax re- ceipt*. Cornp. laws, 853. Six. 2180. The per capita and ad valorem tax, when levied by the Board of County Commissioners for the care and maintenance of the poor of the county, must be collect- ed by the Tax Collector in the same manner and at the same time as other county taxes, and when collected must be paid into the county treasury and constitute the county hospital fund, and must be used for the care and maintenance of the indigent sick or otherwise dependent poor of the county, and for no other purpose, and can only be drawn from the county treasury upon presentation of the warrant of t lie Commissioners drawn upon the hospital fund. Sec. 2181. The County Treasurer must provide blank receipts for the special per capita hospital tax when levied, which must be signed by the Treasurer and countersigned and registered by the Auditor, and delivered and charged to the Tax Collector and his receipt taken therefor. 284 §§ 2200-2202 DISPOSAL OF TOWN SITES. Tit XII TITLE XII. DISPOSAL OF TOWN SITES ENTERED UNDER THE LAWS OF THE UNITED STATES. 2201. 2202. 2203. 2204 2205 2206 Section 2207. To render account, compensation, how paid, by whom. Fees must be tendered, payment of. Conveyance to claimants, request of. Rights of officer or trustee entering lands, interest of, how settled. Determining adverse rights, who deemed to possess title. Costs of action, how regulated. Contracts. Duties of successors in trust, pow- ers of . 2208. 2201). 2210, 2211. 2212. 22 \'.i. 2214. Section 2200. Corporate authorities or Probate Judge to enter Towns sites at United States Land Office Conveyance how made and to whom covenant. Notice of entry, how given, by whom. Statement of party claiming inter- est what to contain. Adverse claims, how determined. Trial, what evidence may be given. Proceedings in District Court to de- termine controversy. Section 2200. It is the duty of the corporate authori- ties of any city or incorporated town; or of the Probate Judge of any county in which is situate any incorporated town, to enter at the proper land-office of the United States such quantity of land as the inhabitants of such city or town may be entitled to claim, in the aggregate, according to the population, in the manner required by the laws of the Unit- ed States and the regulations prescribed by the Secretary of the Interior of the United States, and make and sign all nec- essary declaratory statements, certificates and affidavits, or other instruments requisite to carry into effect this Title and Chapter eight of Title thirty -two of the Revised Statutes of the United States, and to make proof, when required, of the facts necessary to establish the claim of such inhabitants to the lands so granted by the laws of Congress. Sec. 2201. Any such corporate authorities, or judge, holding the title to any such lands in trust, as declared in said acts of Congress, must by a good and sufficient convey- ance, grant and convey the title to each and every block, lot, share or parcel of the same to the person entitled thereto, ac- cording to his rights or interest in the same as they exist, in law or equity, at the time of the entry of such lands, and when any parcel or share of such lands is occupied or pos- sessed by one or more persons, claiming the same by grant, lease or sale, the respective rights and interest of such per- sons, in relation to each other in the same, are not changed or impaired by any such conveyance. Every conveyance, by such corporate authorities or judge, pursuant to the pro- visions of this Title, must be so executed and acknowledged as to admit the same to be recorded, and if made previous to the issuing of the patent for such lands, it must contain a covenant that the grantor will, after the issuing of such pat- ent, execute, acknowledge and deliver to the grantee, his heirs or assigns, such further conveyance, as may be or be- come necessary to fully vest and perfect the title to the lands therein described in the grantee, his heirs or assigns. Sec. 2202. Within thirty days after the entry of such lands the corporate authorities or Judge, entering the same, must give public notice of such entry by posting the no- tice thereof in at least three public places in said town, and by publishing such notice in a newspaper printed and pub- lished in the county in which such towu is situated, or, in 285 Corporate au- thorities or pro- bate judge to enter town sites at United •States land office. Comp. laws, 69^. Conveyance, how made and to whom cove- nant. Notice of entry, how given, by whom. Tit XII. meal of party claiming interest, what to ecu tain. Adverse claims, how determined. Trial, what evidence may be i.*iven. Proceedings in district court to determine con- troversy. DISPOSAL OF TOWN SITES. §§ 2203-2206 $e there is no such newspaper, then in some newspaper printed and published at the seat of government; such no- tice must be so published once in each week for at least three successive weeks, and must contain the name of> the towa site, and an accurate description of the lands so entered as the same are described in the certificate of entry or dupli- cate receipt for the purchase money thereof, issued at the time of entry. Sec. 2203. Every person, association, or company claiming to be entitled to such lands, or any block, lot, share or parcel thereof, must within sixty days after the first publication of such notice, in person or by duly author- ized agent or attorney, sign a statement in writing contain- ing an accurate description of the particular parcel or parts in which he claims to have an interest, and the specified right, interest, or estate therein, which he claims to be en- titled to receive, also a brief statement of the facts upon which such right, interest, or estate depends, for its validity, and deliver the same to such corporate authorities or Judge, and all persons failing to sign and deliver such statement, within the time specified in this section, are, as against any claimant, forever barred the right of claiming or recovering such lands, or any interest therein. Sec. 2204. In case there are adverse claimants to such lands, or to any part, parcel or share thereof, and the con- troversy is not settled by agreement in writing between the parties thereto, such controversy may be determined by voluntary submission thereof by the parties to reference or arbitration and by the written award of the arbitrators; and in case any such controversy is not so settled or determined within three months from the time of the entry of the land, either of the claimants may bring a civil action against the adverse claimant in the district court for the county in which the lands are situated. Sec. 2205. Upon the trial in such action either party may give in evidence the statement mentioned in this Title, deposited by the other, or by the person under whom he plaims, with the corporate authorities or Judge holding the title to the lands in controversy therein, and the person who made the first claim to, and settlement upon such lands, either in person or by agent, servant or tenant, or those claiming under him, must in such actions be deemed to have the right to such lands, provided there has been no aban- donment thereof since such settlement. Sec. 2206. In case any controversy between adverse claimants to such lands is not settled or determined by agreement or arbitration within the time allowed therefor as hereinbefore specified, and no action to determine the same is commenced by either claimant within one month thereafter, the corporate authorities or Judge holding the title to any such lands, must bring an actionjn the District Court for the count}7" in which the lands in controversy are situated, against the adverse claimants thereto, to settle and determine such controversy. The complaint in such case must be in the nature of a bill of interpleader, and set forth a description of the lands thus claimed by adverse claimants, and the character and extent of the right, inter- est or estate therein claimed by each, as the same appears 285 8 2207-2209 DISPOSAL OF TOWN SITES. Tit. XII, by the statements deposited with such authorities or Judge (as the case may be), and pray that the several adverse claimants may be required to appear in such court and pros- ecute their claims or be forever barred. Any party to such action who fails to appear and answer such complaint, and thus prosecute his claim to the land described therein, pur- suant to the summons in such case, and the practice of the District Court, is forever barred of the right to assert any claim or title to such lands adverse to the other claimants in any court whatsoever. If the adverse claimants of the land described in the complaint appear, they must respec- tively answer such complaint, and either disclaim any right, title, interest or estate in the land therein described, or set forth the nature, character and extent of the title and interest which they respectively claim therein. Sec. 2207. As soon as may be after the expiration of sixty days from the first publication of the notice, the cor- porate authorities or Judge holding the title to the lands de- scribed in such notice, must make a true statement in writ- ing containing a true account of moneys expended in the acquisition of the title, and the administration or execution of the trust to that time, including all moneys paid for the purchase of such lands, all necessary traveling expenses, all moneys paid for posting and publishing such notices, and for proof thereof, and for all other necessary and proper ex- penses incident to such trust, and also a true account for time and service employed in the business of such trust to that time. The whole amount of such account for moneys and reasonable charges for compensation is a charge upon the lands so held in trust, in favor of the trustee, and must be paid by the several claimants entitled to such lands, in proportion to the several quantities df* shares thereof to which they are respectively entitled. Sec. 2208. Before the corporate authorities or Judge holding any such lands in trust as aforesaid can be required to execute, acknowledge or deliver any conveyance thereof, or of any lot, block, parcel or share thereof, as hereinbefore mentioned, to any person claiming to be entitled to such conveyance, ami such person mu*st pay or tender the sum of money chargeable upon the part thereof to be conveyed ac- cording to the statement or account mentioned in the last section, together with interest on each of the money items of such account at the rate of twenty-four per cent per an- num from the time when the same accrued, and also such further sums as are a reasonable compensation for prepar- ing, executing and acknowledging such conveyance, and and the fees of the officers taking the acknowledgment thereof. > Sec. 2209. After the expiration of sixty days from the time of the first publication of the notice, the corporate au- thorities or Judge holding the title to the lands described therein, must, upon a reasonable demand or request, and upon the payment or tender of the moneys mentioned in the last preceding section, execute, acknowledge and deliver to each and every claimant, association or company of claimants of such lands, or of any lot, block, parcel or snare thereof, a conveyance thereof, according to the statement made and deposited as aforesaid; Provided, That no such 287 To render ac- count, compen- sation, how paid, by whom. Fees must be tendered, pay- ment of. Conveyance t<< claimants, re- quest of. Tit. XII. DISPOSAL OF TOWN SITES. §§ 2210-2214 Bights oi o or trustee enter- ing land-. Determining adverse rights. Costs. Contracts . Duties of suc- cessors in tirust, ISV ^%o\ conveyance must be executed, acknowledged or delivered for any part, lot, block or share of such lands to which there are adverse claimants until the controversy thereon is set- tled or determined in the manner hereinbefore prescribed, and whenever any such controversy is so settled or deter- mined, the said corporate authorities or Judge, must, upon the like demand or request, and the like payment or tender, convey the land, or interest, or share therein, the right to which has been thus ascertained to the person thereby deter- mined to be entitled to the same. Sec. 2210. In case any judge or other officer who enters any such lands under the provisions of the acts of Congress and thus becomes the sole trustee thereof, is possessed of, or entitled to any part, lot, block or share thereof, according to and by virtue of the provisions of this Title, and the same is not claimed adversely to him by any person, he is seized and possessed of the title thereto and estate therein, to his own use in fees simple, absolute, free, and discharged of such trust, and no conveyance other than the patent of the lands including the same, is necessary to perfect his abso- lute title thereto. In case any such land or share therein so claimed by said Judge or other officer, is claimed by any other person adversely to him, the conflicting claims must be adjusted or determined by settlement, arbitration or ac- tion as hereinbefore prescribed. Sec. 221 1. For the purpose of determining the rights of adverse claimants to any land so entered, the corporate au- thorities or Judge hereinbefore mentioned is deemed to pos- sess and hold the title to such lands in trust from the time of the entry thereof. Sec. 2212. The costs in the actions mentioned in this Title are recoverable as in other civil actions. Sec. 2213. Every person in whom the title to any lands is vested under and by the provisions of this Title, may be compelled to specifically perform any prior valid agreement for a conveyance. Sec. 2214. The successor in office of any Judge or other officer entering lands under said acts of Congress, must, when the trust has not been fully executed, succeed to said trust and has authority to execute the same as fully as his predecessor might have done while in office. 288 §§ 2224-2226 TOWNS AND VILLAGES tu. xm. TITLE XIII, TOWNS AND VILLAGES. Section '2'237. Power to make improvements. Taxes for general purposes. Assessment. Notice ; collecting of taxes. Taxes delinquent. Ceme.ery. By laws and Ordinances. Vacancies. E lectio u Board. Kotice of Elections. Vacancies i'i Board. Qualified electors. Polls kept open. No corporation dissolved. 223 S. 2239. ?2J0. 22 U. 2242. 2243. 2244. 2245. 2246 2247. 22 18. 22-19 2250. Section 2224 Incorporation of towns and vil- lages. 2225. Trustees, election of . 2226. Terms of office of; qualifications. 2227. Oath, etc. m 2228. Quorum. 2229. Kules. 2230. Corporate powers, enumeration of. 2231. Fines, disposition of. 2232. Officers. 2232a. Repealing clause. 2233. Debts and expenses. 2234. Borrow money. 2235 . i1 nnding indebtedness . 2236. Sinking fund. Section 2224. When a majority of the taxable male in- habitants of any town or village, within this Territory, pre- sent a petition to the Board of County Commissioners of the county in which said town or village is situated, setting forth the metes and bounds of their town or village together with the adjacent bounds, in all not exceeding six miles square, which they desire to include therein, and praying that they may be incorporated, and police established for their local government, and the county commissioners are satisfied that a majority of the taxable male inhabitants of such town or village have signed such petition and that the prayer of the petitioners is reasonable, the Board of County Commissioners may declare such town or village incor- porated, designating in such order the metes and bounds thereof; and thenceforth the inhabitants within such bounds are a body politic and corporate, by the name and style of the inhabitants of the town of, or village of (naming it), and by that name they and their successors shall be known in law, have perpetual succession (unless such corporation be dissolved), sue and be sued, implead and be impleaded, de- fend and be defended, in all courts of law and equity, and in all actions, fjleas and matters whatsoever; may grant, purchase, hold and receive property, real and personal, and may lease, sell, and dispose of the same for trie benefit of the town, and may have a common seal, and break and alter the same at pleasure. Sec. 2225. The corporate powers and duties of every town or village so incorporated are vested in a Board of Trustees to consist of five members. The first Board of Trustees must be appointed by the Board of County Com- missioners at the time of declaring such town or village in- corporate, and continue in office uiltil their successors are elected and qualified, and such successors must be chosen by the qualified electors residing in such town or village, on the first Monday of April in every year, in the manner here- inafter provided. Sec. 2226. Any person may be a Trustee who has at- tained the age of twenty-one years, and is a male citizen of the United States, and is an inhabitant of the town or vil- lage at the time of his election and has resided therein one year next preceding; and every Trustee so elected holds his 19 289 Incorporation of towns and vil- lages. 13 sea., 87. Ninne. Per vera. Truateea. 13 .es., 88. Qualifications trustees. 13 sea., 88. of Tit. A J II. TOWNS AND VILLAGES. §§ 2227-2230 Oath, etc. 13 8th , B8 Quorum 13 868.. 88. Rules. 13ses.,>-. Corporate pow- ers. Ordinances. Nuisances . Bawdy-houee6. Gambling. Licensing. 13 ses., 8!). Firearm 6. Fast driving. Night-watches . Hospitals . Pest houses. Diseases. Firoh. Insuruncf o< m- pUJji' office for the term of one year and until a successor is elect- ed and qualified. Sec. 2227. Every Trustee before entering upon the du- ties of his office must take an oath to support the Constitu- tion of the United States and the Organic Act of the Terri- tory of Idaho, and faithfully and impartially to discharge the duties of his office; and every Board of Trustees must assemble within ten days after their appointment or election and choose a Chairman from their number. The Board of Trustees must, by ordinance, fix the time and place of hold- ing their stated meetings and may be convened at any time by the Chairman. Sec. 2228. At all meetings of the Board a majority of the Trustees constitute a quorum to do business; a smaller number may adjourn from day to day and may compel the attendance of absent members in such manner and under such penalties as the Board of Trustees by ordinance have previously prescribed. Sec. 2229. The Board of Trustees may determine rules for their own proceedings, punish any member or other per- son for disorderly behavior in their presence, and with the concurrence of four of the Trustees, expel or suspend any member, but not a second time for the same cause. They must keep a journal of their proceedings, and at the desire of any member cause the yeas and nays to be taken and en- tered on the journal on any question or ordinance, and their proceedings must be public. Sec. 2230. Said Board of Trustees have power: 1. To pass by-laws and ordinances; 2. To prevent and remove nuisances; 3. To prevent, restrain and suppress bawdy-houses, gam- bling houses, opium dens, and other disorderly houses with- in the limits of such town or village; 4. To regulate and prohibit gambling; 5. To provide for licensing and regulating dram shops, tippling houses, saloons, gambling houses, theatrical and other amusements, traveling shows, circuses, and other ex- hibitions and shows within said town or village; 6. To prevent the firing of fire-arms; 7. To prevent furious and unnecessary fast driving or riding of any horse or other animal within such town or village, or such part thereof as they may think proper; 8. To establish night watches; 9. To erect and maintain poor-houses and hospitals; 10. To provide pest houses; 11. To prevent the introduction and spread of contagious diseases; 12. To prevent and extinguish fires, and for that purpose have power to purchase fire engines and to erect engine houses, to purchase hose carts, hose, hooks, ladders, trucks, buckets, ropes and all other apparatus, to maintain a fire department, to provide cisterns, hydrants, water works or to purchase water for fire purposes from others maintaining water works in such 'town or village, in such manner as the trustees by ordinance determine; L3. To levy and collect from insurance companies doing business in such town or village, a license tax for the sup- port of the fire department therein not exceeding five per 290 §2230 TOWNS AND VILLAGES. Tit. XIII. cent, of the gross sums.to such insurance companies in such town or village, annually, as premiums; 14. To provide fire limits within such town or village; 15. To establish and regulate markets; 16. To keep in repair and unobstructed from rubbish, filth, or other deleterious substance, all highways, streets, and alleys within such town or village ; 17. To erect, repair, and regulate wharves and the rates of wharfage: 18. To regulate the landing of steamboats, rafts and other water crafts; 19. To provide for the inspection of lumber, building ma- terials and provisions to be used or offered for sale in such town or village or to be exported therefrom; 20. To remove all obstructions from the sidewalks, curb- stones, gutters, cross-walks, alleys, and open ditches and streams of water running through such town or village, at the expense of the owners or occupants of the ground front- ing or abutting thereon, or at the expense of the person placing the same there; 21. To require and regulate the planting of shade trees in the streets; 22. To regulate the building of stairways, railways, door- ways, awning posts, and all other structures projecting upon or over and adjoining, and all other excavations through and under the sidewalks of such town or village; 23. To have streets and alleys opened, graded and re- paired, and the footways and sidewalks paved or planked at the expense of the owners or occupants of the adjacent lots, and if any such owner or occupant fails to open, re- pair or pave or plank the same, as required by ordinance, such Board of Trustees may cause the same to be done, and may recover the full expense thereof, and the costs of the proceedings, to obtain such recovery from such owner or oc- cupant by action in the name of the corporation before any court of competent jurisdiction, and if any tenant be re- quired to open, grade, repair, or plank in front of the prop- erty occupied by him, the expense thereof is a good set off against so much rent due or to become due the owner, but no tenant can be required to expend more than the rent due or to become due for the term for which he occupies the property, and such charges are a lien upon the property and may be enforced and collected as other liens; 24. To regulate or restrain the running at large of cat- tle, horses, hogs, mules, sheep, goats, dogs or other animals, and to cause such as may be running at large to be im- pounded and sold to discharge the cost and penalties pro- vided for the violation of such prohibitions and the expense of impounding and keeping the same, and of such sale; 25. To provide for taxing the owners and harborers of dogs, and to destroy dogs found at large contrary to any ordinance regulating the same; 20. To provide for the erection of all needful pens, pound 3 and buildings for the use of the town or village, within or without the limits of the same, and to appoint and com- pensate the keepers thereof, and to establish and enforce rules governing the same; 27. To regulate the storage of gunpowder, dynamite 291 Fire limits. Markets. Streots and alley 8. Wharves. Steamboats, Inspection. Sidewalks. Shade trees. Awning posts, Streets and alleys. Cattle. Dogs. Pounds. Gunpowder. Kill. TOWNS AND VILLAGES. 8 2231 8t6vepipou. Riots, etc. Concealed weapons. Vagrants. Water rights. Water- work a Public library General welfare Tenuities. Fines. eg., 91 nitroglycerine, and all powders and explosives containing nitroclycerine, and all other explosive and inflammable materials and articles dangerous to life and property; 28. To regulate the construction of and cleaning of fire- places, chimneys, stovepipes, stoves, ovens, boilers, kettles, forges, or any other apparatus used in any building, manu- factory or business, which may be dangerous in causing or promoting fires, and to prescribe limits within which no dangerous or obnoxious or offensive business shall be car- ried on; 29. To prevent and restrain riots, noises, disturbances or disorderly assemblies in any street, alley, commons, house or place in the town or village; 30. To regulate, prevent and punish the carrying of con- cealed weapons; 31. To arrest, regulate, punish, fine, imprison, or set at work on streets, or elsewhere, all vagrants, and persons found in the town or village, without visible means of sup- port, or some legitimate business; 32. To acquire water rights for the benefit of the inhabi- tants of such town or village, for culinary, domestic, or irri- gating purposes, for the extinguishing of fires, and for all other useful and necessary purposes for which water can be beneficially used for the benefit of the inhabitants of such town or village; 33. To erect and maintain water works for the purpose of furnishing water to the inhabitants of such town or village, and for the extinguishment of fires, and for such purposes to condemn lands, to acquire by condemnation, or otherwise, waterways, springs, streams and watercourses, the right of way and to do all things necessary to enable such town or village to acquire and maintain water works within the limits, not inconsistent with the laws of the United States or of this Territory; 34. To establish and maintain a free public library and reading room in such town or village to be under the man- agement and control of the Board of Trustees, to appoint a librarian and janitor therefor, and to levy by tax upon the taxable property within said town or village, annually, not exceeding two mills on the dollar, for the purpose of estab- lishing and maintaining such free public library and read- ing room, said taxes to be levied and collected in the same manner as other taxes are levied and collected in said town or village for general purposes ; 35. To make all such ordinances, by-laws, rules, regula- tions and resolutions not inconsistent with the laws of the United States o&g4$his Territory, as may be expedient to maintain the p*aee, good government and welfare of the town or village and its trade, commerce and manufactories; 36. To enforce all ordinances by inflicting penalties for the violation thereof, not exceeding one hundred dollars for any one offense, recoverable with costs together with im- prisonment until the amount of said judgment and costs are paid. Sec. 2231. All moneys which are collected within the limits of such town or village for liquor and gambling licenses, or from fines or penalties under any ordinance ol said town, must be paid over by the officers collecting the 292 8 2232-2235 TOWNS AND VILLAGES. Tit. XIII. same, to the Trustees of the several school districts of said town or village for the benefit of the public schools of said town or village, the same to be divided, in case there are more than one district in said town or village, among the several districts in proportion to the number of children of school age residing in each, according to the last school cen- sus in such district. Sec. 2232. (Sec. 1.) That the Marshal, City Attorney, officers. Corporation Counsel, and all other officials of all cities and 14 8es* towns now incorporated or hereafter to be incorporated either under special charter, or the provisions of this act, shall be elected by the qualified voters of each incorporated city or town at the same time and in the same manner, in each city and town as is now prescribed by the respective charters thereof, or by the general law for that of members of City Council, or Town Council, or Boards of Trustees; l^cLthat the City or Town Council, or Boards of Trustees of eaeh incorporated cities or towns, shall have power to fix and regulate by ordinance the salary and fees of all officials specified in this section at their last regular meeting prior to the election of such officers, in each towns or cities, and at any time thereafter to prescribe their duties, and said City or Town Council, or Board of Trustees shall have power to fill all vacancies that may occur until next election; and shall require the Treasurer of such town or city, and such other officers as they shall in their opinion deem necessary or expedient, to give bonds, with sufficient security, to be approved by them in such sum or sums as they shall deem necessary, to secure the faithful performance of the duties of their respective offices and security for the proper appro- priation and payment of all moneys coming into their hands as such officers. Sec. 2232a. (Sec. 2.) That all acts or parts of acts in Repeal, special charters of cities or towns, or of the general law re- u ses- lating to cities or towns in conflict to this act, are hereby re- pealed. [Act Feb. 10, 1887. In effect immediately.] Sec. 2233. The Board of Trustees have power to appro- Debts and ex- priate money and provide for the payment of the debts and il^es8', 91. expenses of the town or village, and when such Board of Trustees order any account or demand to be paid, if money has been appropriated for that purpose and not otherwise, the Clerk must draw a warrant upon the Treasurer for the amount ordered paid, which warrant must be drawn on the special or general fund appropriated therefor, and be signed by the chairman of the Board of Trustees, and countersigned by the Clerk. Sec. 2234. The Board of Trustees have power to borrow Borrow money, money on the credit of the town or village and to pledge its 13 8eB < 92- credit, revenue and public property for the payment there- of, Provided, That no sum or sums exceeding one thousand dollars must be borrowed, until the Board of Trustees are in- structed so to do by a majority of all the votes cast at an election held in such town or village for that purpose. Sec. 2235. The Board of Trustees have power to pro- vide for the issuing of bonds for the purpose of funding the indebtedness of the town or village. Said bonds must be payable in not less than five, nor more than twenty years from the date of their issue, and must bear interest at a 293 Funding indebt- edness. 13 BOB., 92. Tit. XI 11. TOWNS AND VILLAGES. §§ 2236-2239 Sinking fund. 13 sob., 02. Power to make improvements. 13 988., 92. Taxeafor gener- al purposes 13 sea., 93. Assessment. 13 sea., 93. rate not exceeding ten per cent per annum, with interest coupons attached, payable annually or semi-annually, and to levy taxes upon all taxable property in such town or vil- lage, in addition to other taxes, for the payment of said coupons as they become due, and such taxes shall be paya- ble only in cash or said coupons. But the bonded indebted- ness must not at any one time exceed ten per cent of the value of the real estate in said town or village according to the assessment of the preceding year. And no bonds must be negotiated by said Board of Trustees at less than their par value. Sec. 2236. The Board of Trustees have power to make provisions for a sinking fund, to pay at maturity the bonded indebtedness of the town or village and to levy and collect taxes on all the taxable property in the town or village, in addition to other taxes, for the purpose of paying the same, and to provide that said tax be paid in cash; and whenever any town or village has heretofore issued bonds by virtue of any special authority derived from the Legislature of this Territory, the Board of Trustees have power to levy and col- lect taxes for the purpose of paying such bonds as is provid- ed in the laws giving such authority. Sec. 2237. The Board of Trustees have power to make any and all improvements of a general nature in the town or village, and, for the purpose of paying for the same, may borrow money on such terms as the Board of Trustees may prescribe, subject, however, to the limitations and restric- tions provided in this Title, and for money so borrowed may issue the bonds of the town or village, due in not less than five nor more than twenty years from the date of their issue, with interest thereon at a rate not exceeding ten per cent per annum, with interest coupons thereto attached, payable annually, or semi-annually, and may levy taxes on all the taxable property within the town or village, in addition to other taxes, to pay such bonds at their maturity, and the interest coupons as they respectively come due, which taxes must be paid in cash only. Sec. 2238. The Board of Trustees have power to levy and collect taxes for general revenue purposes, not to ex- ceed ten mills on the dollar in any one year, on all property within the limits of such incorporated towns or villages, taxable according to the laws of the Territory of Idaho; the valuation of such property to be taken from the books or assessment rolls of the County Assessor of the county in which such town or village is situated for the last preceding assessment. Sec. 2239. The Assessor appointed by the Board of Trustees of such town or village, must make a fair and full assessment of all the real and personal and other property within the limits of such town or village subject to taxation under the laws of the Territory; and to do this he must copy and make up such list or assessment so to be made by him from the books and assessment rolls of the last preceding assessment made under the laws of this Territory by the As- sessor of the county in which such town or village is situated, and he must deliver the same to the Board of Trustees; and the Clerk of said Board of Trustees must, under the direc- tion of* said Board of Trustees, prepare and deliver to the 294 $§ 2240-2242 TOWNS AND VILLAGES. Tit. Xllt. Treasurer of such town or village, a duplicate of said tax- list, keeping in his office the original list returned by the Assessor as aforesaid, and he may receive therefor such compensation as the Board of Trustees may prescribe. Sec. 2240. The Treasurer of such town or village re- €eiving such duplicate tax list, within ten days thereafter must give notice that the said tax list is in his hands for the collection of taxes; that the taxes if not paid within three months from the date of such notice, will be delinquent and subject to all the forfeitures and penalties attaching to delinquent taxes under the general laws of the Territory; such notice must be made by publication one time in a news- paper published in the town or village, or in case no news- paper is published therein, then by printed or written notices posted in four public places within the limits of said town or village. Sec. 2241. Whenever any of said taxes become delin- quent as aforesaid, it is the duty of the Treasurer of said town or village to deliver to the Tax Collector of the county in which said town or village is situated, at least thirty days before the time appointed by law for advertising lands for sale for delinquent county taxes, a certified list of the delinquent taxes due the said town or village as well for previous years as for that year, and the lots and parcels of land upon which such delinquent taxes may be due must be advertised and sold by such County Tax Collector at the same time and in the same manner and with like effect as lands or lots are sold by such County Tax Collector for county taxes and such County Tax Collector must make out certificates of sale, and must make, execute and deliver tax collector's deeds for lots or land so sold within the same time and in the same manner as is now provided by law when land is sold for delinquent county taxes, and such certificates and deeds have the same force and effect as those made in cases of sale for delinquent county taxes; the County Tax Collector must forthwith pay over to the Town Treasurer all moneys collected by him for delinquent taxes as aforesaid. Sec. 2242. The Board of Trustees have power to pur- chase, hold and pay for lands, not exceeding twenty acres in one body, within or outside of the limits of such town or village, for a cemetery for the burial of the dead, and to Mirvey, map, grade, fence, ornament and otherwise improve such cemetery grounds, and to provide for the expense thereof; to convey cemetery lots by certificates signed by the Chairman of the Board of Trustees, and countersigned by the Clerk of the Board, and such certificate vests in the pro- prietor, his heirs and assigns, a right in fee simple to such lot for the sole purpose of interment; the Board may pass rules, regulations and ordinances regulating, protecting and governing the cemetery, the owners of lots therein, and visi- tors and trespassers thereon; the moneys received from the Bale of such cemetery lots must be kept separate from other moneys belonging to such town or village, and be known as the Cemetery Fund, and such moneys must be applied in payment for such cemetery ground, when such payment is not otherwise provided for by the Board of Trustees and for the improvement and ornamentation thereof. 295 Notice, collection of taxes. 13ses,, i>3. Taxes delin- quent. 13 ses., 94. Cemetery. 13 ses., 94. Tit A J J /• TOWNS AND VILLAGES. §§ 2243-2250 Dv-lnv vacancies. 13 86F 94 ; on board. 13 8t>6 , 95. Notice of elections . 13 bos., 95. Vacancies. 13 86^.. 95 Qualified elec- tors. 13 bob., 95. Polls kept open. 13 bos., 95. Corporation, dissolution of. 13 B6B.. 95. Sec. 2243. The Chairman of the Board of Trustees must cause to be printed and published the by-laws and ordinances of the Board for the information of the inhabi- tants, and cause the same to be carried into effect, and in case of the absence of the Chairman of the Board from any meeting of the Board of Trustees, such Board may appoint a Chairman, pro tempore, who may, for the time being, ex- ercise and have the same powers and perform the same duty of the regular Chairman. Sec. 2244. All vacancies in the Board of Trustees must be filled by a special election called by the Board after ten days' notice thereof. Sec. 2245. The Board of Trustees must, as often as may be necessary, appoint live qualified voters to act as an Elec- tion Board, three of whom must act as Judges, and two as Clerks of Election, who must control and superintend all elections for Trustees or other officers required to be elected under this Title. Sec. 2246. The Board of Trustees must give public notice of the time and place of holding such elections, said notice to be given not less than ten nor more than twenty days previous to the election. Sec. 2247. If on any day appointed for holding any election under the provisions of this Title, any of the Judges or Clerks of Election fail to attend, the electors present may fill such vacancies from among the qualified electors present. Sec. 2248. All male persons, citizens of the United States, of the age of twenty-one years, who are qualified electors in this Territory, residing within the limits of such incorporated town or village, and who have resided within the same for four months next preceding the election, are entitled to vote at all elections of town officers, or upon any question submitted to the electors of such towns or villages by the Board of Trustees. Sec. 2249. At all elections as herein provided for, the polls must be kept open from nine o'clock in the morning until six o'clock in the afternoon. Sec. 2250. No corporation is dissolved by this Title, and all towns and villages heretofore incorporated under the laws of this Territory, and not heretofore dissolved as pro- vided by law, may continue under their respective charters- 296 CIVIL CODE OF IDAHO TEEEITOK1 PART SECOND.-CIVIL PRELIMINARY PROVISIONS. Section 2400. Title of Part Second of the Revised Statutes and how cited. Section 2400. Part Second of the Revised Statutes shall be known as the Civil Code of the Territory of Idaho, and whenever cited, enumerated, referred to or amended, may be designated simply as the Civil Code, adding, when nec- essary, the number of the section. Title II, how cited . TITLE I. PERSONS. Section 2405. Minors, who are. 2400. Unborn child. 2407. When minor may disaffirm. 2408. Cannot disaffirm contract for neces- saries. 2409. Nor certain obligations. Section 24 10. Contracts of persons without under- standing. 2411. Contracts with other insane per- sons. 2412. Powers of persons whose incapacity has been adjudged. Section 2405. Minors are: 1. Males under twenty-one years of age; 2. Females under eighteen years of age. Sec. 2406. A child conceived, but not yet born, is to be deemed an existing person so far as may be necessary for its interests, in the event of its subsequent birth. Sec. 2407. In all cases other than those specified in the next two sections, the contract of 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 a rea- sonable time afterwards ; or, in case of his death within that period, by his heirs or personal representatives; 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 re- storing the consideration to the party from whom it was re- ceived, or paying its equivalent. Sec. 2408. A minor cannot disaffirm a contract other- wise 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 pro- vide for him or them. Sec. 2409. A minor connot disaffirm an obligation oth- erwise valid, entered into by him under the express author- ity or direction of a statute. Sec. 2410. A person entirely without understanding has no power to make a contract of any kind, but he is lia- ble for the reasonable value of things furnished to him nec- essary for hi 3 support or the support of his family. Sec. 241 1. A conveyance or other contract of a person of unsound mind, but not entirely without understanding, 299* Minors. Who are. Comp laws, 741). Unborn child. Minor, dis- affirmance of t9^ f ° Cannot dis- affirm contract for necessaries , Nor certain ob- ligations . Porsons without understanding, liabilities of, etc. Contract of Insane -ubject to rescission. Til. I. • PERSONS. § 2412 made before his incapacity has been judicially determined. is subject to rescission. Powers on Sec. 2412. After his incapacity has been judicially de- caracity°imHU" termined. a person of unsound mind can make no convey- been adjudged, ance or other contract, nor delegate any power or waive any right until his restoration to capacity. But a certificate from the medical superintendent or resident physician of the insane asylum to which such person may have been committed, showing that such person had been discharged therefrom cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such discharge. 300 §§ 2420-2426 THE CONTRACT OF MARRIAGE. Tit. II. Gh.I. TITLE II. MARRIAGE. CHAPTER I. The Contract of Marriage. Sbction 2420. What constitutes marriage. Minors capable of contracting mar- riage. Marriage, how manifested and proved. Certain marriages voidable. Incompetency of parties to. Of whites and negroes or mnlattoes void. Polygamy forbidden. Release from marriage contract, when. Marriages contracted without the Territory. 2421. 2422. 2423. 2424. 2425. 2426. 2427. 2428. Section 2429. Marriage, how solemnized. 2430. Duty of person solemnizing mar- riage. 2431. By whom solemnized. 2432. No particular form of solemniza- tion. 2433. Proof of qualification. 2434. Certificate of marriage , 2435. Certificate recorded. 2436. Certificate to parties . 2437. Penalty for neglect. 2438. Fees. 2439. Validity. 2440. Evidence. Section 2420. Marriage is a personal relation arising out of a civil contract, to which the consent of parties capa- ble of making it is necessary. Consent alone will not consti- tute marriage; it must be followed by a solemnization or by a mutual assumption of marital rights, duties or obligations. Sec. 242 1 . Any unmarried male of the age of eighteen years or upwards, and any unmarried female of the age of sixteen years or upwards, and not otherwise disquali- fied, are capable of consenting to and consummating mar- riage. Sec. 2422. Consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases. Sec. 2423. If either party to a marriage be incapable 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. Sec. 2424. Marriages between parents and children, an- cestors and descendants of every degree, and between broth- er and sisters of the half as well as the whole blood, and be- tween uncles and nieces, or aunts and nephews are incestu- ous, and void from the beginning, whether the relationship is legitimate or illegitimate. Sec. 2425. All marriages of white persons with negroes or mulattoes are illegal and void. Sec. 2426. 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 beginning 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 immediately preceding, or was generally reputed and was believed by such person to be dead at the time such subsequent marriage was contracted; in either of which cases the subsequent marriage is valid untir its nullity is adjudged by a competent tribunal. 301 What consti- tutes marriage . 9 ses.. 24. Minors capable of con- tracting mar- riage. 9 ses., 24. Marriage, how manifested and proved . 9 ses., 24. Marriage i when voidable . 9 ses., 25. Incompetency of parties to . 9 ses., 25. Negroes. N. 8. Second marri- age, when illegal and void. 9 ses., 25. Tit.n. Ch.I. THE CONTRACT OF MARRIAGE. §§ 2427-2437 Release from contract. Marriages without the Territory. 1) see., 25. Marriages, how solemn- ized, 9 see . , 25 . Duty of person solemnizing marriage, i) ses., 25. By whoiu solemnized. 9 ses., 25. Form of solemn- ization, none. 9 sea., 25. Proof of ciuali- fication 9 ses., 2t>. Certificate of marriage . 9 ses., 26. Certificate re- corded. 9 ses., '_'•;. Oertifloate to parti 9 ses., '.!<;. !> BOH., 'J(l. Sec. 2427. Neither party to a contract to marry is bound by a promise made in ignorance of the other's want of per- sonal chastity, and either is released therefrom by unchaste conduct on the part of the other, unless both parties partici- pate therein. Sec. 2428. All marriages contracted without this Terri- tory, which would be valid by the laws of the country in which the same were contracted, are valid in this Terri- tory. Sec. 2429. Marriage must be solemnized, authenticated, and recorded as provided in this chapter, but non-compliance with its provisions does not invalidate any lawful mar- riage. Sec. 2430. All persons herein authorized to solemnize marriages must ascertain and be assured of: First. The identity of the parties; Second. Their real and full names and places of resi- dence; Third. That they are of sufficient age to be capable of contracting marriage ; Fourth. If the male is under the age of eighteen or the female under the age of sixteen years, the consent of the father, mother, or guardian, if any such, is given, or that such non-aged person has been previously but is not at the time married; and that the parties applying for the rites of marriage, and making such contract, have a legal right so to do. Sec. 2431. Marriage may be solemnized by either a Justice of the Supreme Court, District or Probate Judge, the Governor, a Justice of the Peace, Mayor, priest, or min- ister of the gospel of any denomination. Sec. 2432. No particular form for the ceremony of mar- riage is required, but the parties must declare, in the pres- ence of the person solemnizing the marriage, that they take each other as husband and wife. Sec. 2433. The person solemnizing the marriage may administer oaths and examine the parties and witnesses for the purposes of satisfying himself that the contracting par- ties are qualified under the requirements of this chapter. Sec. 2434. Every person solemnizing a marriage must make a record thereof, and within thirty days after such marriage, make and deliver to the Recorder of the county where the marriage took place, a certificate, under his hand, containing the names, and residences of the parties, and of at least two witnesses present, and of the time and place of such marriage; and when the consent of the parent or guar- dian is necessary, stating that the same is duly given. Sec. 2435. All such certificates must be filed and re- corded by the Recorder in a book to be kept by him for that purpose; and he may receive a fee of one dollar from the person solemnizing the marriage, who may demand the same from the parties before the marriage. Sec. 2436. When a marriage has been solemnized, the person solemnizing the same must give to each of the par- ties, i( required, a certificate thereof. Sec. 2437. Every person solemnizing a marriage, who neglects to make and deliver to the Recorder a certificate t hereof within the time above specified, forfeits and must pay 302 S§ 2438-2450 DIVORCE. Tit. II. Ch.IL Fees . 9 sea., 26. Validity. 9ses.,26. for such neglect, the sum of twenty dollars; and every Re- corder who neglects to record such certificate so delivered, forfeits the like penalty. Sec 2438. The person solemnizing a marriage is for such service entitled to receive from the parties married the sum of five dollars, but may receive any other or greater sum voluntarily given by the parties to such marriage. Sec. 2439. !N o marriage solemnized by any person pro- fessing to be a Judge, Justice, or minister, is deemed or re- garded void, nor is the validity thereof to be in any way af- fected on account of any want of jurisdiction or authority: Provided, It be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. Sec. 2440. The original certificate and record of mar- riage made by the Judge, Justice, or minister, as prescribed in this chapter, and the record thereof by the Recorder of ^^Ivjlaa. cl^^ the county, or a copy of such record duly certified by such i^ ^^ ^ Recorder, must be received in all courts and places as pre- sumptive evidence of the fact of such marriage. t^ cc SjJL Evidence. 9 sea., 27. CHAPTER II. Divorce. Section 2450. 2451. 2452. 2453. 2454. 2455. 2456. 2457. 2458. 2459. 2460. 2461. 2462. 2463. 2464. 2465. 2466. 2467. 2468. 2469. 2470. Ground for annulment of marriage. Action to obtain decree of nullity in certain caseB, when and by whom commenced . Children of annulled marriage. Custody of children. Effect of judgment of nullity. Marriage, how dissolved. Divorce, effect of judgment. Causes for divorce. Adultery defined. Extreme cruelty, what. Desertion, what. Willful neglect, what. Habitual intemperance what. Habitual intemperance for one year. Divorces denied on showing, what. Collusion, what. Recrimination, what. Condonation in a recriminatory de- fense a bar to such defense, when . Divorces denied, when. Divorces granted, when. Proof of actual residence required. Presumptions do not apply . Section 2471. Divorces not to be granted by de- fault, etc. Expense of action. Orders respecting custody of chil- dren. Support of wife and children on di- vorce or separation granted to wife. Security for maintenance and ali- mony. Court must resort to what, in ex- ecuting certain sections. If wife has sufficient for her sup- port, court may withhold allow- ance. Community and separate property may be subjected to support and educate children . Legitimacy of issue. Disposition of community property on divorce . Same. Such an action subject to revision on appeal. Jurisdiction in District Court. 2472. 2473. 2474. 2475. 2476. 2477. 2478. 2479. 2480. 2481. 2482. 2483. Section 2450. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or persons having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabits with the other as husband and wife; 2. 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 cohabit with the other as husband or wife; 4. That the consent of either party was obtained by fraud . 303 Grounds for annulment of marriage. Act January 13, 1875. Tit. II. Ch. 11. DIVORCE. 5§ 2451-2457 Actiou to obtain decroe of nul- lity, when and by whom may be commenced. Children of annulled marriage. Custody of children. Effect of judgment of nullety. Marriage, how dissolved. Effect of ju ■ I tu- rnout. Causes for divorce. unless such party afterward, with full knowledge of the facts 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 afterwards freely cohabited with the other as husband or wife; 6. That either party was, at the time of marriage, physic- ally in capable of entering into the married state, and such incapacity continues, and appears to be incurable. Sec. 2451. An action to obtain a decree of nullity of marriage, for causes mentioned in the preceding section, must be commenced within the 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 con- sent, within four years after arriving at the age of consent; or by a parent, guardian, or other person having charge of such non-aged male or female, at any time before such mar- ried 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 in- jured party, within four years after the marriage; 6. For causes mentioned in subdivision six ; by the injured party, within four years after the marriage. Sec. 2452. When a marriage is annulled on the ground that a former husband or wife is living, or on the ground of insanity, children begotten before the judgment are legiti- mate and succeed to the estate of both parents. Sec. 2453. The court must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. Sec. 2454. A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them. Sec. 2455. Marriage is dissolved only : 1. 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. Sec. 2456. The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons. Sec. 2457. Divorces may be granted for any of the fol- lowing causes: 1. Adultery; 2. Extreme cruelty; 3. Willful desertion; 4. Willful neglect; 5. Habitual intemperance; 6. Conviction of felony. 804 §§ 2458-2470 DIVORCE. Tit. II Ch. II Sec. 2458. Adultery is the voluntary sexual intercourse of a married person with a person, other than the offender's husband or wife. Sec. 2459. Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage. Sec. 2460. Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert. Sec. 246 1 . 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 dissipation. Sec. 2462. Habitual intemperance is that degree of in- temperance from the use of intoxicating drinks which dis- qualifies the person a great portion of the time from proper- ly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party. Sec. 2463. Willful desertion, willful neglect or habitual intemperance must continue for one year before either is a ground for divorce. Sec. 2464. Divorces must be denied upon showing: 1. Collusion; or 2. Condonation; or 3. Recrimination; or 4. Limitation and lapse of time. Sec. 2465. Collusion is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having commit- ted, acts constituting a cause of divorce for the purpose of enabling the other to obtain a divorce, and is a bar to an ac- tion for such acts. Sec. 2466. Recrimination is a showing by the defend- ant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. Sec. 2467. Condonation of a cause of divorce shown in the answer as a recriminatory defense, is a bar to such de- fense when the condoriee has fully performed the marital duties, and is without reproach since the condonation, or if two years or more have elapsed after the condonation. Sec. 2468. A divorce must be denied: 1. When the cause is adultery and the action is not com- menced 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 commenced before the expiration of one year 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. Sec. 2469. A divorce must not be granted unless the plaintiff has been a resident of the Territory for six months next preceding the commencement of the action. Sec. 2470. In actions for divorce the presumption of law that the domicile of the husband is the domicile of the wife, does not apply. After separation each may have a separate domicile, depending for proof upon actual residence, and not upon legal presumptions. Adultery defined. Extreme cru- elty, what. Desertiou, what. Willful neglect, what. Habitual in- temperance, what. Intemperance, etc., for one year. Divorces denied, on showing what. Collusion, what. Recrimination, what. Condonation. N. 8. Divorces denied, when. N. S. Divorces granted, when. 8ses.,639. Proof of actual residence required. N.S. 20 305 Tit II. Ch. II. DIVORCE. ^ 2471-248C nivurce not -niutt-d by letault, etc. 8 ses. , 6 l"- \4* Expense of action. 8 868., 010. Orders respect- ing custody of children. ActJau'y 13, 1875. Support of wife and child- ren on divorce or separation granted wife. Act Jan 'y 13, 1875. Security for maintenance and alimonv. N. S. Court must resort to what, in executing certain sections. ActJan'y 13, 1875. When court may withhold allowance. Education of children . Ligitimacy of issue. ActJan'y 13, 1875. Community, Eroperty and omestead, how disposed of on divorce. Act Jan'y G, 1-75. Sec. 2471. No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, ad- mission 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 rinding of the referee, require proof of the facts alleged, and such proof, if not taken be- fore the court, must be upon written questions and answers. Sec. 2472. While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. Sec. 2473. In an action for divorce the court may, be- fore or after judgment, give such direction for the custody r care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. Sec." 2474. Where a divorce 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 as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects. Sec. 2475. The court may require the husband to give reasonable security for providing maintenance 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. Sec. 2476. In executing the four preceding sections the court must resort: 1. To the community property; then 2, To the separate property of the husband. Sec. 2477. ■ When the wife has a sufficient separate es- tate, or there is community property sufficient to give her alimony or a proper support, the court must withhold any allowance to her out of the separate property of the hus- band. Sec. 2478. The community property and the separate property may be subjected to the support and education of the children in such proportions as the court deems just. Sec. 2479. When a divorce is granted for the adultery of the wife, the legitimacy of children begotten of her be- fore the commission of the adultery is not affected; but the legitimacy of other children of the wife may be determined by the court upon the evidence in the case. Sec. 2480. In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the com- munity property and the homestead must be assigned as follows: 1 . If the decree be rendered on the ground of adultery or extreme cruelty, the community property must be as- signed to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties deems just; 2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community proper- iy must be equally divided between the parties; 3. If a homestead has been selected from the community 306 5§ 2481-2497 HUSBAND AND WIFE. Tit. II. Ch.II/. Order of court for disposition of property. property, it may be assigned to the innocent party, either absolutely or for a limited period, subject in the latter case to the future disposition of the court; or it may be divided or be sold and the proceeds divided; 4. If a homestead has been selected from the separate property of either, it must be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party. Sec. 2481. The court, in rendering a decree of divorce, must make such order for the disposition of the community property, and of the homestead as in this chapter provided, and, whenever necessary for that purpose, may order a par- tition or sale of the property and a division or other dispo- sition of the proceeds. Sec. 2482. The disposition of the community property, and of the homestead, as above provided, is subject to re- vision on appeal in all particulars, including those which are stated to be in the discretion of the court. Sec. 2483. Exclusive original jurisdiction of all ac- original tions and proceedings under this chapter is in the District ^l^this11 Court, and the Judge thereof at chambers may make all Chapter is8 in necessary orders for temporary alimony and support, and Act Jan-yiaj" the expenses of the action and the custody of children and 1875. property during the pendency of the action. iul Order subject to revision on appeal. /*a CHAPTER III. Husband and Wife. Section 2493. Mutual obligations of husband arid wife. 2494. Rights of husband as head of fam- ily- 2495. Separate property of the wife. 2496. Separate property of the husband. 2497. Community property. 2498. Management of wife's separate prop- erty. 2499. Mismanagement— trustee appoint- ed. 2500. Inventory of separate property of wife. 2501. Filing inventory notice of wife's title. 2502. Earnings of wife when living sepa rate, separate property. Section 2503. Liabilty for debts of wife contracted before marriage. Wife's property not liable for debts of the husband, but liable for her own debts . Power of the husband over commun- ity property. Courtesy and dower not allowed. When wife must support husband. Rights of husband and wife gov- erned by what. Marriage settlement contracts, how executed. To be acknowledged and recorded. Effect of recording. Minors may make marriage settle- ments. 2504. 2505. 250<>. 2507. 2508. 2509. 2510. 2511. 2512. Section 2493. Husband and wife contract toward each other obligations of mutual respect, fidelity, and support. Sec. 2494. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. Sec. 2495. All property of the wife, owned by her be- fore marriage; and that acquired afterwards by gift, bequest, devise, or descent is her separate property. Sec. 2496. All property owned by the husband before marriage, and that acquired afterwards by gift, bequest, de- vise, or descent is his separate property. Sec. 2497. All other property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband or wife, is community property; unless by the instrument by which any such prop- erty is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use; in which case the management and disposal of such rents and 307 Mutual obli- gations of. N. S. Husband, head of family. N. S. y Separate prop- erty of wife. Act Jan'y (>, 1875. Separate property of husband. Act Jan'y (3, 1875. Community property. Act Jan'y 6, 1875. Tit. II. Ch.III. HUSBAND AND WIFE. §§ 2498-2507 Husband to have uianage- ment and control of wife's prop- erty. lan'y U, M isuianagerueut of husband, trustee ap- pointed. Act Jan'v 6, 1875. profits belong to the wife, and they are not liable for the debts of the husband. Sec. 2498. The husband has the management and con- trol of the separate property of the wife, during the contin- uance of the marriage, but no sale or other alienation of any part of such property can be made, nor any lien or incum- brance created thereon, unless by an instrument in writ- ing, signed by the husband and wife, and acknowledged by her upon an examination, separate and apart from the husband, as upon a conveyance of real estate . Sec. 2499. If the wife has just cause to apprehend that her husband has mismanaged or wasted, or will mismanage or waste, her separate property, she, or any other person m her behalf, may apply to the District Court for the appoint- ment of a trustee to take charge of and manage her separate estate; such trustee may, for good cause shown, be, from time to time, removed by the court, and another appointed in his place. Before entering upon the discharge of his trust, he must execute a bond with sufficient sureties, to be ap- proved by the court for the performance of his duties. /In case of the appointment of a trustee for the wife, he must account for and pay over to the husband and wife, or either of them, the income and profits of the wife's estate in such manner and proportion as the court may direct. Sec. 2500. A full and complete inventory of the sepa- rate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner re- quired by law for the acknowledgment or proof of a con- veyance of real property by an unmarried woman, and re- corded in the office of the Recorder of the county in which the parties reside. Sec. 2501. The filing of the inventory in the Recorder's office is notice and prima facie evidence of the title of the wife. Sec. 2502. 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 sepa- rate property of the wife. Sec. 2503. The separate property of the husband is not liable for the debts of the wife contracted before the mar- inventory of separate prop- erty of wife. Act Jan'y 6, 1875. Filing inventory notice of title. Act Jan'y 6, 1875. Earnings of wife. N. S. Liability for debts. Act Jan'y 6, 1875. Wife's property not liable for debts, etc. Act Jan'y G, 1875. Power of husband over community property. Courtesy and dower not allowed. Act Jan'y (>, 1 875. When wifo muBt Hupport husband. riage. Sec. 2504. The separate property of the wife is not lia- ble for the debts of her husband, but is liable for her own debts contracted before or after marriage. Sec. 2505. The husband has the management and con- trol of the community property, with the like absolute power of disposition (other than testamentary) as he has of his separate estate; but such power of disposition does not ex- tend to the homestead or that part of the common property occupied or used by the husband and wife as a residence. Sec. 2506. 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 wife upon the death of her husband. Sec. 2507. The wife must support the husband out of her separate property whenhe has no separate property, and they no community property, and he from infirmity is not able or competent to support himself. 308 2508-2512 HUSBAND AND WIFE. Tit.IL Ch.UL Sec. 2508. The property rights of husband and wife are governed by this chapter, unless there is a marriage settle- ment containing stipulations contrary thereto. Sec. 2509. All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as conveyances of land are required to be executed and acknowledged or proved. Sec. 2510. When such contract is acknowledged or proved, it must be recorded in the office of the Recorder of every county in which any real estate may be situated which is granted or affected by such contract. Sec. 2511. The recording or non-recording of such con- tract has a like effect as the recording or non-recording of a conveyance of real property. Sec. 2512. A minor capable of contracting marriage may make a valid marriage settlement. 309 Rights of husband gov- erned by what. Act Jan'y 6, 1875. Marriage settlement con- tracts, how executed. Act Jan'y 0, 1875. To be acknwl- edged and re- corded . Act Jan'y 6, 1875. Effect of record- ing. Act Jan'y G, 1875. Minors, marriage settle- ments. Act Jan'y (!, 1875. Tit. fir. Ch.I-II. CHILDREN BY BIRTH -ADOPTION SS 2530-2547 TITLE III. PARENT AND CHILD. Allowance to parent. .Reciprocal duties of parents aud children. When parents liable for necessaries. Wages of minors. When wife may obtain custody of children. Child legiti- mized, when, f) ses., 27. Child may be adopted. 10 He Who may adopt . 10 Hf'B.. 9. 'II f, iBary. IB., 9. CHAPTER I. Children by Birth. Section 2530. 2531. 2532. Allowance to parent. Reciprocal duties of parents and children in maintaining each other . When a parent is liable for neces- saries supplied to a child. Section 2533. Wages of minors. 2534. Wife in certain cases may obtain custody of children. 2535. Child legitimized by marriage of parents. Section 2530. The proper court may direct an allow- ance to be made to the parent of a child, out of its property for its past or future support and education, on such condi- tions as may be proper, whenever such direction is for its benefit. Sec. 2531. It is the duty of the father, the mother, and the children of any poor person who is unable to main- tain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding. Sec. 2532. If a parent neglects to provide articles nec- essary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent. Sec. 2533. The wages of a minor employed in service may be paid to him, unless, within thirty days after the com- mencement of the service, the parent or guardian entitled thereto gives the employer notice that he claims such wages. Sec. 2534. When a husband and wife live in a state of separation, without being divorced, any court of competent jurisdiction, upon application of either, if an inhabitant of this Territory, may inquire into the custody of any unmar- ried minor 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 must be guided by the welfare of the child. Sec. 2535. A child born before wedlock becomes legiti- mate by the subsequent marriage of its parents. CHAPTER II. Adoption. Section 2545. Child may be adopted. 254 G. Who may adopt. 2547. Consent of wife necessary. 254 8. Consent of child's parents. 2549. Consent of child . Section 2550. Proceedings on adoption. 2551. Judge's order. 2552. Effect of adoption. 2553. Effect on former relations of child. 2554. Adoption of illegitimate child. Section 2545. Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in the chapter. Sec. 2546. The person adopting a child must be at least fifteen years older than the person adopted. Sec. 2547. A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife; nor can a married woman, not thus separated from her 310 ig 2548 2554 ADOPTION. Tit. III. Ch. II. Consent of parents . 10 ses., 9. 14 ses. Consent of child. 10 ses., 9. Proceedings on adoption. 10 ses., 9. 13 ses., 25. husband without his consent, provided the husband or wife. not consenting, is capable of giving such consent. Sec. 2548. A legitimate child cannot be adopted with- out the consent of its parents, if living, nor an illegitimate • liild 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 guilty 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 neglect. If it can be shown satisfactorily to the judge that the parent or parents have abandoned, or ceased to provide for its support, then it may be adopted by the written consent of its legal guardian. If no guardian then of its nearest relative. If no relative then by the consent of some person appointed by the judge to act in the proceedings as the next friend to such child. [Act Feb. 5, 1887. In effect June 1, 1887.] Sec. 2549. The consent of a child, if over the age of twelve years, is necessary to its adoption. Sec. 2550. The person adopting a child, and the child adopted, and the other persons, if within or residents of the county, whose consent is necessary, must appear before the Probate Judge of the county where the person adopting re- sides, and the necessary consent must thereupon be signed, and an agreement be executed by the person adopting, to the effect that the child shall be adopted and treated in all re- spects as his own lawful child should be treated. But if the parent or guardian of the child, or either of them, is a non- resident of the county where the application is made, such non-resident parent or guardian may execute his consent in writing, and acknowledge the same before any officer au- thorized by the laws of this Territory to take acknowledg- ments of deeds, which consent being filed in the court where the application is made, is deemed a sufficient appearance on the part of such non-resident. Sec. 2551. The Judge must examine all persons appear- ing before him pursuant to the last 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 thenceforth be regarded and treated in all re- spects as the child of the person adopting. Sec. 2552. A child, when adopted, may take the name of the person adopting, and the two thenceforth sustain to- ward each other the legal relation of parent and child, and have all the rights and are subject to all the duties of that relation. Sec. 2553. The parents of an adopted child are, from the time of the adoption, relieved of all parental duties to- wards, and all responsibility for, the child so adopted, and have no right over it. Sec. 2554. The father of an illegitimate child, by pub- licly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating 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 for< - going provisions of this chapter do not apply to such an adoption. 311 Judge's order. 10 ses., 9. Effect of adop- tion. 10 ses., !). Effect on for- mer relations of ';bild. lOses., !). Adoption of illegitimate child. 10 ses., «.). Tit n . Ch. I. GENERAL PROVISIONS. 2575-2578* TITLE IV. CONCERNING CORPORATIONS. CHAPTER I. General Provisions. Corporations, public or private. Private corpor- ations, how formed. For any lawful purpose. Articles of incorporation. Same, what to contain. Section 2575. Corporations, public or private. 2576. Private corporations, how formed. 2577. For any lawful purpose. 2578. Articles of incorporation. 2579. Same, what to contain. 2580. Same, further facts . 2581. Same, how executed, and by whom. 2582. Prerequisite in filing articles. 2583. Subscription and payment before certificate . 2584. Articles, where filed, certificate. 2585. Copy of articles evidence. 258G. Stockholders and members. 2587. Articles filed in what counties. 2588. By-laws, when, how, and by whom adopted. 2589. Directors, election of. 2590. By-laws, for what may provide. 2591. Same, recording and amending. 2592. Directors, how many and who to be. 2593. Same, elected at first meeting. 2594. Election, how conducted. 2595. Organization of Board. 2596. Dividends, only from surplus prof- its. 2597. Directors, removed from office. 2598. Justice of the Peace may order meeting, when. 2599. Majority of stock must be repre- sented. 2600. Stock of minors, etc. 2601. Election postponed. 2602. Complaints and proceedings regard- ing elections. 2603. False certificates, reports or notices. 2604. Meeting by consent. 2605. Proceedings binding. 2606. Meetings, where held. 2607. Where no provision, meetings how called. 2608. Change of principal place of busi- ness. 2609. Stockholders liable for debts. 2610. Certificates, how and when issued. 2611. Transfer of shares. 2612. Same held by married women, etc. 2613. Non-resident stockholders. Section 2575. Corporations are either public or private- Public corporations are formed or organized for the govern- ment of a portion of the Territory; all other corporations are private. Sec. 2576. Private corporations may be formed by the voluntary association of any five or more persons in the manner prescribed in this Title. A majority of such persons must be bona fide residents of this Territory. Sec. 2577. Private corporations may be formed for any purpose for which individuals may lawfully associate them- selves. Sec. 2578. The instrument by which a private corpora- tion is formed, is called "Articles of Incorporation." Sec. 2579. Articles of incorporation must be prepared Betting forth: First . The name of the corporation; Second. The purpose for which it is formed: 312 Section 2614. Assessments, when may be levied . Limitation of assessments. Levy of assessment. What order shall contain. Notice of assessment. Same, service and publication of. Delinquent notice. Same, contents of. Same, publication of. Jurisdiction acqtfired, how. Sale, how conducted. Purchases. When corporation may purchase Stock purchased by corporation. Postponement of sale. Assessment not invalidated. Action to recover stock sold. Proof of publication. Waiver of sale, action for assess- ment. Powers of corporations. Not to emit paper money . Misnomer. To organize within one year. Increasing and diminishing capitaL stock. Acquisition of real property. Records of corporations. Same. Right of repeal reserved. Franchise sale of under execution Purchaser may conduct business.* Same, may recover penalties, etc. Effect of sale. Redemption of franchise. Sale, where made. On dissolution, directors as trustees for creditors. May extend time of existence. Existing corporations may continue under this title. Same, Application of this chapter. Foreign corporations to designate person upon whom service may be made. 2615. 2616. 2617. 2618. 2619. 2620. 2621. 2622. 2623. 2624. 2625. 2626. 2627. 2628. 2629. 2630. 2631. 2632. 2633. 2634. 2635. 2636. 2637. 2638. 2639. 2640. 2641. 2642. 2643. 2644. 2645. 2646. 2647. 2648. 2649. 2650. 2651. 2652. 2653. §§ 2580-2584 GENERAL PROVISIONS. Tit. IV. Ch, L Third. The place where its principal business is to be transacted; Fourth. The term for which it is to exist, not exceeding fifty years; Fifth. The number of its directors or trustees; and the names and residence of those who are appointed for the first year: Pro ruled, At any time during the existence of the cor- poration, the number of the directors may be increased, in corporations for profit, by a majority of the stockholders of the corporations, to any number not exceeding eleven, who must be members of the corporation, whereupon a certifi- cate, stating the number of directors, must be filed, as pro- vided for the filing of original articles of incorporations; Sixtti. The amount of the capital stock, and the number of shares into which it is divided; Seventh. If there is a capital stock, the amount actually subscribed, and by whom. Sec. 2580. The articles of incorporation of any railroad, wagon road or telegraph organization must also state: Fust. The kind of road or telegraph intended to be con- structed; Second. The place from and to which it is intended to be run, and all the intermediate branches; Third. The estimated length of the road or telegraph line. Sec. 2581. The articles of incorporation must be sub- scribed by five or more persons, a majority of whom must be resident freeholders of this Territory, and acknowledged by each before some officer authorized to take and certify acknowledgments of conveyances of real property. Sec. 2582. Each intended railroad, wagon road or tel- egraph corporation, before filing articles of incorporation, must have actualty subscribed to its capital stock, for each mile of the contemplated work, the following amount, to wit: First. One thousand dollars per mile of railroads: Second. One hundred dollars per mile of telegraph lines; Third. Three hundred dollars per mile of wagon roads. Sec. 2583. Before the Secretary of the Territory or the Recorder of the county issues to any such corporation a cer- tificate of the filing of articles of incorporations, there must be filed in his office an affidavit of the president, secretary or treasurer named in the articles that the amount of the capital stock thereof required by law has been actually sub- scribed. Sec. 2584. Upon filing the articles of incorporation in the office of the County Recorder of the county in which the principal business of the company is to be transacted, and i\ copy thereof, certified by the County Recorder, with the Secretary of the Territory, and filing the affidavit mentioned in the last section, when such affidavit is required, the Sec- retary of the Territory or such County Recorder must issue to the corporation, over his official seal, a certificate that a copy of the articles, containing the required statement of facts, has been filed in his office; and thereupon the persons executing the articles and their associates and successors shall be a body politic and corporate, by the name stated in the articles, and for the term of fifty years, unless it is in 313 Same, further facts . Same, how executed, by whom. Prerequisite in filing articles. Subscription and payment before cer- tificate. Articles where filed, certificate. Tit VI, Ck. I. GENERAL PROVISIONS. Copy of articles. dene Stockholders and members. Articles filed in what counties. Bydaws. ■when, how and by whom adopted. Directors, election of. By-laws, for what may provide. the articles of incorporation otherwise stated,, or by law oth- erwise specially provided. Sec. 2585. A copy of any articles of incorporation filed in pursuance to this title and certified by the secretary of the Territory, or the Recorder of the proper county, must be received in all courts and other places as prima facie evi- dence of the facts therein stated. Sec. 2586. The owners of shares in a corporation which lias a capital stock, are called stockholders. If a corpora- tion has no capital stock, the corporators and their success- ors are called members. Sec. 2587. No corporation formed under the provisions of this Title, shall purchase, locate, or hold, property in any county of this Territory, without filing a certified copy of its articles of incorporation in the office of the County Recorder of the county in which such property is situated, within sixty days after such purchase or location is made, and ev- ery corporation now in existence must, within ninety days after the passage of this Title, file a certified copy of its ar- ticles of incorporation, as provided in this section. Any cor- poration failing to comply with the provisions of this sec- tion, must not, while so in default, maintain or defend any action or proceeding in relation to such property. Sec 2588. Every corporation formed under this Title must, within one month after filing articles of incorpora- tion, adopt a code of by-laws for its government not incon- sistent with the laws of Congress and of this Territory. The assent of stockholders representing a majority of all the sub- scribed capital stock, or a majority 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 if such meeting be called, two weeks' notice of the same by adver- tisement in some newspaper published in the county in which the principal place of business of the corporation is located, or, if none be published therein, then in a paper published at the capital of the Territory, must be given by order of the acting president. The written assent of the holders of two-thirds of the stock subscribed, or of two-thirds of the members, if there be no capital stock, shall be effect- ual to adopt a code of by-laws without a meeting for that purpose. Sec. 2589. The directors of a corporation must be elect- ed annually by the stockholders or members, and if no pro- vision is made in the by-laws for the time of the election, the election must be held on the first Tuesday in June. No- tice of such election must be given, and the right to vote de- termined as prescribed in the last preceding section. Sec. 2590. A corporation may, by its by-laws, where no other provision is specially made, provide, among other things, for: First. The time, place, and manner of calling and con- ducting its meetings: Second. The number of stockholders or members consti- tuting a quorum; Third. The mode of voting by proxy ; Fourth. The time of the annual elections of directors, and the mode and manner of giving notice thereof: Fifth. The duties and compensation of officers; 314 §§ 2591-2594 GENERAL PROVISIONS. Tit. IV Ch. 1 Same, record- ing and amending . Sixth. The manner of election, and the terms of office of all officers other than the directors; and Seer nth. Suitable penalties for violation of by-laws, not exceeding, in any case, one hundred dollars for any one of- fense. Sec. 2591. All by-laws adopted must be certified by a majority of the directors and the secretary of the corpora- tion, and copied in a legible hand in some book kept in the principal office of the corporation in this Territory, to be known as the "Book of By-Laws," and no by-law shall take effect until so copied, and the book shall be open to the in- spection of the public during office hours of each day, ex- cept holidays. The by-laws may be repealed or amended, or new by-laws may be adopted, at the annual meeting of the stockholders or members called for that purpose by the directors, by a vote representing two-thirds of the sub- scribed stock, or two-thirds of the members when there is no capital stock, or the power to repeal and amend the by-laws, and adopt new by-laws, may, by a similar vote at any such meeting, be delegated to the board of directors. This power, when so 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 original by- laws, and immediately after them, and shall not take effect until so copied. If any by-law be repealed, the fact of re- peal, with the date of the meeting at which the repeal was enacted, must be stated in the said book, and until so stated the repeal must not take effect. Sec. 2592. The corporate powers, business and property of all corporations formed under this Title must be exer- cised, conducted and controlled by a board of not less than five nor more than eleven directors, to be elected from among the holders of stock, or when there is no capital stock, then from among the members of such corporation. A majority of the directors must be, in all cases, citizens and actual bona fide residents within this Territory. Directors of corporations for profit must be holders of stock therein, in an amount to be fixed by the by-laws. Di- rectors of all other corporations must be members thereof. Unless a majority is present and acting, no business per- formed or act done by the board of directors is valid as against the corporation. Whenever a vacancy occurs in the office of directors, unless otherwise provided by the by-laws, such vacancy must be filled by the board. Sec. 2593. At the first meeting at which the by-laws are adopted, or at such subsequent meeting as may be then designated, directors must be elected, to hold their offices for one year, and until their successors are elected and qual- ified. Sec. 2594. All elections of directors must be by ballot, and a vote of stockholders representing a majority of the subscribed capital stock, or of a majority of the members, if there be no capital stock, is necessary to a choice. If there be capital stock in the corporation, each stock- holder is entitled to one vote for each share held by him at all such elections, and at all elections at other meetings of stockholders. Directors, how many and who to be Same, elected at first meeting. Election, how conducted. 315 Tit. IV. Ch. J. GENERAL PROVISIONS. §§ 2595-2598 Organization of board . Dividends only from sur- plus profits. Directors re- moved from office. Justice of peace may order meeting, when. Sec. 2595. Immediately after their election, the direct- ors must organize by the election of a president, who must be one of their number, a secretary and a treasurer. They must perform the duties enjoined on them by law and by 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 a valid corporate act, as though made by a majority of all the di- rectors of the corporation. Sec. 2596. The directors of corporations must not make dividends, except from the surplus profits 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 reduce or increase the capital stock, except as in this title specially provided. For a violation of the provisions of this section, the di- rectors, under whose administration the same may have oc- curred, (except those who may have caused their dissent therefrom to be entered at large on the minutes of directors at the time, or, when not present, when the same did oc- cur) are, in their individual and private capacity, jointly and severally liable to the corporation, and to the creditors thereof, in the event of dissolution, to the full amount of the capital stock so divided, withdrawn, paid out, or re- duced. There may, however, be a division and distribution of the capital stock of any corporation which remains after the payment of all its debts, upon its dissolution or the ex- piration of its term of existence. Sec. 2597. No director can be removed from office un- less by a vote of the stockholders holding two-thirds of the capital stock, or of two-thirds of the members, where there is no capital stock, at a general meeting held after previous notice of the time and place, and of the intention to pro- pose such removal. Meetings of stockholders or members 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 there- upon give notice of the time, place, and object of the meeting, and by whose order it is called. If the secretary refuses 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 manner provided in section 2588 of this Title, unless other express provision has been made therefor in the by-laws. In case or removal, the vacancy may be filled by election at the same meeting. Sec. 2598. Whenever, from any cause, there is no per- son authorized to call or to preside at a meeting of a corpora- tion, any Justice of the Peace of the county where such cor- poration is established, may, on written application of three or more of the stockholders, or of the members thereof, is- sue 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 di- rect such person to preside at such meeting until a secretary 316 £§ 2599-2604 GENERAL PROVISIONS. Tit. IV. Ch. I. is chosen and qualified, if there is no officer present legally authorized to preside thereat. Sec. 2599. At all elections or votes had for anj^ purpose, there must be a majority of the subscribed capital stock, or of the members, when there is no capital stock, represented either in person, or by proxy, in writing*. Every person act- ing therein in person, or by proxy, or by representative, must be a member thereof, or a bona fide stockholder, having stock in his own name on the stock-booksof the corporation, at least ten days prior to the election. Any vote or election had otherwise than in accordance with the provisions of this Title, 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 or to the Judge of said court at his chambers. Any regular or call meeting of the stockholders or members may adjourn from day to day, or from time to time, if from any reason there is not present a majority of the subscribed stock or members, or no election or majority vote had. Such adjournment and rea- sons thereof being recorded in the journal of proceedings of the board of directors. Sec. 2600. The shares of stock of an estate of a minor, or insane person, may be represented by his guardian, anddf a deceased person by his executor or administrator. Sec. 2601. If from any cause an election does not take place on the day appointed in the by-law, it may be held on any day thereafter, as may be provided for in such by- laws, or to which such election maybe adjourned or ordered by the directors. If an election has not been held at the ap- pointed time, and no adjourned or other meeting for the purpose has been ordered, a meeting may be called by the stockholders, as provided in section 2o97 of this Title. Sec. 2602. Upon the application of any person, or body corporate, aggrieved by any election held by any corporate body, or any proceedings relating to any such election, the District Judge of the district in which such election is held, must proceed forthwith summarily to hear the allegations and proofs of the parties, or otherwise inquire into the mat- ters of complaint, and thereupon confirm the election, order a new one, or direct such other relief in the premises as ac- cords with right and justice. Before the proceedings are had under this section, five days' notice thereof must be given to the adverse party, or to those to be affected there- by, if found within the Territory. Sec. 2603. Any officer of a corporation, who willfully gives a certificate, or willfully makes an official report, pub- lic notice, or entry in any of the records of books of the cor- poration, concerning the corporation or its business, which is false in any material representation, is liable for all the damages resulting therefrom to any person injured thereby; and if two or more officers unite or participate in the com- mission of any of the acts herein designated, they are joint- ly and severally so liable. Sec. 2604. 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 at a meeting legally called and notified. 317 Majority of stock must be represented. Stock of minors, etc. Election postponed. Complaints and proceedings regarding elections. False certifi- cates, reports or notices Meeting by consent. Tit IV. Ch. I. GENERAL PROVISIONS. |§. 2605-2609 Proceedings binding. Meetings, •when held. When no provision, meetings how called. Change of principal place of bhsiness. Stockholders liable for debts . ^ytv Sec. 2605. The stockholders or members of such cor- poration, when so assembled, may elect officers to fill all vacancies then existing, and may act upon such other busi- ness as might lawfully be transacted at regular meetings of the corporation. Sec. 2606. The meetings of the stockholders, members and board of directors of a corporation must be held at its office, or principal place of business. Sec. 2607. When no provision is made in the by-laws for regular meetings of the directors, and the mode of call- ing special meetings, all meetings must be called by special notice in writing, to be given by the secretary to each di- rector, if within the Territory, on the order of the presi- dent, or if there be none, on the order of two directors. Sec. 2608. Every corporation that has been or may be created under the general laws of this Territory may change its principal place of business from one place to another within this Territory. Before such change is made, the con- sent, in writing, of the holders of two-thirds of the capital stock, or of two-thirds of the members, when there is no capital stock, must be obtained and filed, notice of such in- tended removal or change must be published, at least once a week, for three successive weeks, as provided in section 2588, giving the name of the county where it is situated, and that to which it is intended to remove. Sec. 2609. Each stockholder of a corporation is indi- vidually and personally liable for such portions of its debts and liabilities 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 corporation. Any creditor of the corporation may institute joint or several actions against any of its stockholders, for the proportion of his claim pay- able by each, and in such action the court must ascertain tr> AiV YixcweV 1 I ~ Jne. Proportion of the claim or debt for which each defendant is liable, and a several judgment must be rendered against each, in conformity therewith. If any stockholder pays his proportion of any debt due from the corporations, incurred while he was such stockholder, he is relieved from any further personal liability for such debt, and if an action has been brought against him upon such debt, it must be dis- missed, as to him, upon his paying the costs, or such portion thereof as may be properly charged against him. The liability of each stockholder is determined by the amount of stock or shares owned by him at the time the debt or liability was incurred by the corporation; and such liability is not re- leased by any subsequent transfer of stock. The term stock- holder, as used in this section, applies not only to such per- sons as appear by the books of the corporation to be such, but also to every equitable owner of stock, although the same appears on the books in the name of another; and, also, to every person who has advanced the installments or pur- chase 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 cannot be liable under the provisions of this section, by reason of any such investment; nor can the person for whose benefit this 318 |§ 2610-2613 GENEEAL PKOVISIONS. Tit. IV. Ch. 1. investment is made be responsible in respect to the stock until he becomes competent and able to control the same; but the responsibility of the guardian or trustee making* the in- vestment must continue until that period. Stock held as col- lateral security, or by a trustee, or in any other representa- tive 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 stock- holder, 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 stockhold- ers, and similar judgments may be rendered. The liability of each stockholder of a corporation not formed under the laws of this Territory, but doing business within this Terri- tory, is the same as the liability of stockholder of a corpora- tion created under the laws of this Territory. Sec. 2610. All corporations for profit must issue certifi- cates for stock when fully paid up, signed by the president and secretary, and may provide, in their by-laws, for issu- ing certificates prior to the full payment, under such re- strictions and for such purposes as their by-laws may pro- vide. Sec. 2611. Whenever the capital stock of any corpora- tion is divided into shares, and certificates therefor are is- sued, such shares of stock are personal property, and may be transferred by endorsement by the signature of the propri- etor, 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 name of the par- ties by and to whom transferred, the number and designa- tion of the shares, and the date of the entry. Corporations may, by by-laws, provide that no transfer of its stock shall be made upon its books until all indebtedness to the cor- poration of the person in whose name the stock stands, whether for assessments, calls, or otherwise is paid. Sec. 2612. Shares of stock in corporations, held or owned by a married woman, may be transferred by her, her agent or attorney, without the signature of her husband, in the same manner as if such married woman were a femme sole. All dividends payable upon any shares of stock of a corpora- tion held by a married woman, may be paid to such married woman, her agent or attorney, in the same manner as if she were unmarried, and it is not necessary for her husband to join in a receipt therefor; and any proxy or power given by a married woman touching any shares of stock of any cor- poration, owned by her, is valid and binding without the signature of her husband, the same as if she were unmar- ried. Sec. 2613. When shares of stock in a corporation an; owned by a non-resident of the Territory, the president, secretary, or directors of the corporation, before entering any transfer of the shares on its books, or issuing certificate 319 Certificates, bow and whets issued. Transfer of shares. Shares held l>y married women, etc. Non-resident stockholders. IF. Ch. I. GENERAL PROVISIONS. >§ 2614-2617 Assessments, when may be levied. J ..imitation <•( asaeasments. Levy of assessment What order shall contaii therefor to the transferee, may require satisfactory evidence that the non-resident owner was alive at the date of the t ransfer, and if such satisfactory evidence be not furnished, may require a bond of indemnity, with two sureties, satis- factory to the officers of the corporation, or approved by the Judge of the district court of the district in which the principal office of the corporation is situate, conditioned to protect the corporation against any liability to the heirs or legal representatives of the owner of the shares, in case of his or her death before the transfer; and if such evidence or bond be not furnished when required, as herein provided, neither the corporation nor any officer thereof is liable for refusing to enter the transfer on the books of the corpora- tion. Sec. 2614. 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 expenses, conducting business, or paying debts, levy and collect assessments upon the subscribed capital stock thereof, in the manner and form, and to the extent herein provided. Sec. 2615. No one assessment must exceed ten per cent of the amount of the capital stock named in the articles of incorporation, except in the cases in this section otherwise provided as follows: First. 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 percent- age as will raise that amount; Second. The directors of railroad corporations may assess the capital stock in installments of not more than ten per centum per month, unless in the articles cf incorporation it is otherwise provided; Third. The directors of fire insurance corporations may assess such a percentage of the capital stock as they deem proper. Sec. 2616. No assessment must be levied while any portion of a previous one remains unpaid, unless : First. The power of the corporation has been exercised in accordance with the provisions of this Title for the pur- pose of collecting such previous assessment; Second. The collection of the previous assessment has been enjoined; or, Third. The assessment falls within the provisions of one of the subdivisions of the last preceding section. Sec. 2617. The order levying an assessment must spec- ify the amount thereof, when, to whom and where payable; fix the day subsequent to the full term of publication of the ) sessment notice, on which the unpaid assessments will be delinquent, not less than thirty or 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 fif- teen nor more than sixty days from the day the stock is declared delinquent. 320 §§ 26 18-2622 GENEKAL PROVISIONS. Tit. iv. en. l Same, ami service publi' cation of. Delinquent notice. Sec. 2618. Upon the making of the order the secretary assessment must cause to be published a notice thereof, in the following- form : (Name of corporation in full. Location of principal place of business.) Notice is hereby given that at a meeting of the directors held on the (date) an assessment of (amount) per share was levied upon the capital stock of the corpora- tion, payable (when, to whom, and where) any stock upon which this assessment remains unpaid on the (day fixed) will be delinquent, and advertised for sale at public auc- tion, and unless payment is made before, will be sold 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.) Sec. 2619. The notice must be published once a week, for four successive weeks, in some newspaper of general circulation 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 situated in a differ- ent county and a paper be published therein. If there be no newspaper published in the place designated as the princi- pal place of business of the corporation, then the publica- tion must be made in some other newspaper of the county, if there be one, and if there be none, then in a newspaper published at the capital of the Territory. Sec. 2620. If any portion of the assessment mentioned in the notice remains unpaid on the day specified therein for declaring the stock delinquent the secretary must, un- less otherwise ordered by the board of directors, cause to be published in the same papers in which the notice hereto- fore provided for has been published, a notice substantially in the following form: (Name in full. Location of principal place of business.) Notice: — There is delinquent upon the following described stock on account of assessment levied on the (date), (and assessments previous thereto, if any), the several amounts set opposite the names of the respective shareholders as fol- lows: (names, number of certificate, number of shares, amount.) And in accordance with law, so many shares of each parcel of such stock as may be necessary, will be sold at the (particular place), on the (date), at (the hour) of such day, to pay delinquent assessments thereon, together with the cost of advertising and expenses of the sale. (Name of secretary, with location of office.) Sec. 2621. The notice must specify every certificate of same, stock, the number of shares it represents and the amount due thereon, except when certificates may not have been issued to parties entitled thereto, in which case the number of shares and amount due thereon must be stated. Sec. 2622. The notice, when published in a daily paper, must be published for ten days, excluding Sundays and legal holidays, previous 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 prior to the day of sale. contents of. Same publi- cation of. 21 321 Tit. IV. Ch.L GENERAL PROVISIONS. §§ 2G23-2629 Lsdiction, no i wired » how conducted. Purchaser. When corpora- tion may purchase. Stock purchased by corpora- tions. Postponement of sal A88e8nuK'M wot .lidated Sec. 2623. By the publication of the notice the corpor- ation acquires jurisdiction to sell and convey a perfect title to all of the stock described in the notice of sale, upon which any portion of the assessment or cost of advertising remains unpaid at the hour appointed for the sale, but must sell no more of such stock than is necessary to pay the assessment due and costs of advertising and sale. Sec. 2624. On the day, at the place, and at the time ap- pointed in the notice of sale, the secretary must, unless otherwise ordered by the board of 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 assess- ment. Sec. 2625. The person offering at such sale to pay the assessment and costs for the smallest number or shares or fraction of a share, is the highest bidder, and the stock pur- chased must be transferred to him on the stock books of the corporation on payment of the assessments and costs. Sec. 2626. If at the sale of stock, no bidder offers the amount of the assessment and costs and charges due, the same may be bid in and purchased by the corporation, through the secretary, president or any director thereof, at the amount of the assessment, charges and costs due; and said amount must be credited as paid in full on- the books of the corporation, and entry of the transfer of the stock to the corporation made. While the stock remains the proper- ty of the corporation it is not assessable, nor must any divi- dend be declared thereon, but all assessments and dividends must be apportioned upon the stock held by the stockhold- ers of the corporation. Sec. 2627. All purchases of its own stock made by any corporation, vest the legal title to the same in the corpora- tion; and the stock so purchased is held subject to the con- trol of the stockholders, who may make such disposition of the same as they deem fit, in accordance with the by-laws, on vote of a majority of all the remaining shares. When- ever any portion of the capital stock of a corporation is held by the corporation, it shall not be voted upon, but a majori- ty of the remaining shares is a majority of the stock for all purposes of election or voting. Sec. 2628. The dates fixed in any notice of assessment or notice of delinquent sale, published as aforesaid, may be extended from time to time for not more than thirty days, by oider of the directors, entered on the records of the cor- poration; but no such order is effectual unless notice of such extension or postponement is appended to and published with the notice to which the order relates. Sec. 2629. No assessment. is invalidated by a failure to make publication of the notices, nor by the non-perform- ance of any act required in order to enforce the payment of the same; but in case of any substantial error or omission in the course of proceedings for collection, all previous pro- ceedings except the levying of assessment, are void, and publication must begin anew. 322 §§ 2630-2634 GENERAL PROVISIONS. TIL IV. Ch.L Sec. 2630. No action must be sustained to recover stock sold for delinquent assessments, upon the ground of irregu- larity in the assessment; irregularity or defect in the notice of sale or in its publication ; or defect or irregularity in the sale; unless the party seeking to maintain 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 subsequent assessments which may have been paid or may be due thereon, and interest on such sums from the time they were paid; and no such action must be sustained unless the same is commenced within six months after such sale was made. Sec. 2631. The publication of notice required by this Title may be proved by the affidavit of the printer, publish- er, 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 description of the stock sold, and to whom, and for what price, and of the fact of the purchase money being paid. Such affidavit must be filed in the office of the corporation, and copies of the same, certified by the Secretary thereof, are prima facie evidence of the facts therein stated. Certificates of files and records of the corporation in his office, signed by the secretary, and under the seal of the corporation, are prima facie evidence of their contents. Sec. 2632. On the day specified for declaring the stock delinquent, or at any time subsequent thereto, and before the sale, the board of directors may elect to waive further proceedings by sale, and may elect to proceed by action to recover the amount of the assessment and the costs and ex- penses already incurred, or any part or portion thereof. Sec. 2633. Every corporation, as such, has power: First. Of succession, by its corporate name, for the pe- riod limited; and when no period is limited, perpetually; Second. To sue and be sued, in any court, as a natural person may; Third. To make and use a common seal, and alter the same at pleasure; Fourth. To purchase, hold and convey such real and per- sonal estate as the purposes of the corporation may require, not exceeding the amount limited by this Title; Fifth. To appoint such subordinate officers or agents as the business of the corporation may require, and to allow them suitable compensation; Sixth. To make by-laws not inconsistent with any exist- ing law, for the management of its business and property, the regulation of its affairs, and for the transfer of its stock; Sere nth. To admit stockholders or members, and to sell their stock or shares for the payment of assessments or in- stallments; Eighth. To enter into any contracts or obligations essen- tial, necessary or proper to the transaction of its ordinary affairs, or for the purposes of the corporation. Sec. 2634. No corporation shall emit paper money or create or issue bills, notes or other evidences of debt, upon loans or otherwise, for circulation as money. 323 Action to re- cover stock sold. Proof of publication. Waiver of sale, action for assessment. Powers of corporations. Corporations. N"t to omit piper money. IV. Ch.L GENERAL PROVISIONS. \% 2635-2638 To organize within oue year Increasing und diminishing capital stock. Acquisition ot real property, Sec, 2635. The misnomer of a corporation" in any writ- ten instrument does not invalidate the instrument, if it can be reasonably ascertained from it what corporation is in- tended. Sec. 2636. If a corporation does not organize and com- mence the transaction of its business or the construction of its works within one year from the date of its incorporation its corporate powers cease. The due incorporation of any company, claiming in good faith to be a corporation under this Title, and doing business as such, or its right to exer- cise corporate powers, shall not be inquired into, collater- ally, in any private suit to which such de facto corporation may be a party; but such inquiry may be had at the suit of The People of The Territory, on the information of the Dis- trict Attorney of the county of the principal place of busi- ness of the corporation. Sec. 2637. Every corporation may increase or dimin- ish its capital stock as in this section provided: First. By a majority vote of the directors there may be called a meeting of the stockholders, to be convened for the purpose of increasing or diminishing the capital stock; Second. Personal notice of the time and place of such meeting, and the object thereof must be served on each stockholder resident in this territory; or, in lieu thereof , the notice must be published in every issue of a newspaper pub- lished in the county where the principal place of business is located, for four weeks successively; Third.' The notice must also contain the amount to which it is proposed to increase or diminish the capital stock; Fourth. The capital stock must in no case be diminished to an amount less than the indebtedness of the corporation or the estimated cost of the works which it may be the ob- ject or purpose of the corporation to construct; Fifth. At least two-thirds of the entire capital stock must vote in favor of such increase or diminution before the same is effected; Sixth. A certificate signed and verified by the chairman and secretary of the meeting, must be made, showing a strict compliance with all the requirements of this section, the amount to which the capital stock has been increased or diminished, the amount of stock represented at the meet- ing, the vote by which the object was accomplished; Seventh. This certificate must be subscribed by a major- ity of the directors, and duplicates made, one to be filed in the office of the County Recorder and one in the office of the Secretary of the Territory, as provided for original articles of incorporation, and thereupon the capital stock is so in- creased or diminished; Eighth. The written assent of the holders of three- fourths of the subscribed capital stock is as effectual to au- thorize the increase or diminution of the capital stock, as if a meeting were called and held; and upon written assent, the directors may proceed to make the certificate herein provided for. Sec. 2638. No corporation must acquire or hold any more real property than may be reasonably necessary for the transaction of its business, or the construction of its works, 324 §§ 2639-2644 GENERAL PROVISIONS. Tit. IV. Gh. L except such right of way or other property as it may acquire under the laws of Congress, or as may be otherwise special- ly provided. A corporation may acquire real property, as provided in the Code of Civil Procedure, when needed for any of the uses and purposes there mentioned. Sec. 2639. All corporations for profit are required to keep a record of all their business transactions; a journal of all meetings of their directors, members, or stockholders, with the time and place of holding the same, whether regu- lar 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 absent and, if requested by any director, member, or stock- holder, the time must be noted when he entered the meeting or obtained leave of absence therefrom. On a similar re- quest, the ayes and noes must be taken on any proposition, and a record thereof made. On similar request, the protest of any director, member, or stockholder, to any action or pro- posed 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. Sec. 2640. In addition to the records required to be kept by the preceding section, 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 re- ligious 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 inspec- tion of any stockholder, member, or creditor. Sec. 2641. The legislature may at any time amend or repeal this Title or any chapter, articles or section thereof, and dissolve all corporations created thereunder; but such amendment or repeal does not, nor does the dissolution of any such corporation take away or impair any remedy giv- en against any such corporation, its stockholders or officers, for any liability which has been previously incurred. Sec. 2642. 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 like effect as any other property. Sec. 2643. The purchaser at the sale must receive a cer- tificate of purchase of the franchise, and be immediately let into 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, privileges, and subject to all its liabilities, until the redemption of the same as hereinafter provided. Sec. 2644. 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 there- of, or for any damages or other cause, occurring during the time he holds the same, and may use the name of the cor- 325' Records of corporations. Same. Right of repeal reserved. Franchise, sold under execution. Purchaser may conduct business. Same, may recover penal- ties, etc. Tit. IV. Ch.L GENERAL PROVISIONS. §§ 2645-2650 Klf« ct of sale. Redemption of franchise. Sale, when made. On dissolution, directors as trustees for creditors. May extend term < >t existence. Existing corj orations may continue under this chapter. poration for the purpose of any action necessary to recover the same. A recovery for damages or any penalties thus had, is a bar to any subsequent action by or on behalf of the corporation for the same. Sec. 2645. The corporation whose franchise is sold, as in this Title provided, in all other respects retains the same powers, is bound to discharge the same duties, and is liable to the same penalties and forfeitures as before such sale. Sec. 2646. 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 ten per cent interest thereon, but without any allow- ance for the toll which he may in the meantime have re- ceived; 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. Sec. 2647. The sale of any franchise under execution must be made in the county in which the corporation has its principal place of business. Sec. 2648. Unless other persons are appointed by the court, the directors or managers of the affairs of such cor- poration at the time of its dissolution are trustees of the creditors and stockholders, or members of the corporation dissolved, and have full power to settle the affairs of the corporation. Sec. 2649. Every corporation formed ior a period less than fifty years may, at any time prior to the expiration of the term of its corporate existence, extend such term to a period not exceeding fifty years from its formation. Such extension may be made at any meeting of the stockholders or members called by the directors expressly for consider- ing the subject, if voted by stockholders representing two-thirds of the capital stock, or by two-thirds of the mem- bers; or may be made upon the written assent of that num- ber of stockholders or members. A certificate of the pro- ceedings of the meeting upon such vote, or upon such as- sent, must be signed by the chairman and secretary of the meeting of a majority of the directors and be filed in the of- fice of the County Recorder, where the original articles of incorporation were filed, and a certified copy thereof in the office of the Secretary of the Territory, and thereupon the term of the corporation for the specified period. Sec. 2650. Any existing corporation formed under any law of this Territory may continue under this chapter, or under the provisions of any subsequent chapter particularly applicable thereto, by the unanimous vote of all its directors, or its election so to continue may be made at any annual meeting of the stockholders, or members or at any meeting called by the directors expressly for considering the subject, if voted by stockholders representing a majority of the cap- ital stock, or by a majority of the members, or may be made by the directors upon the written consent of that number of such stockholders or members. A certificate of the action of the directors, signed by them and their secretary, when the election is made by their unanimous vote or upon the written consent of the stockholders or members, or a certifi- cate of the proceedings of the meeting of the stockholders or members, when such election is made at any such meet- 326 \% 2651-2653 JGENERAL provisions. Tit. IV. Ch.I. ing signed by the chairman and secretary of the meeting and a majority of the directors, must be filed in the office of the Recorder of the county where the original arti- cles of incorporation are filed, and a certified copy thereof must be filed in the office of the Secretary of the Territory, and thereafter the corporation must continue its existence under the provisions of the Title, which are applicable thereto: and must possess all the rights and powers, and be subject to all the obligations, restrictions and limitations prescribed thereby. Sec. 2651. No corporation formed or existing befor twelve o'clock, noon, of the day upon which this Title take effect, is effected by the provisions of this Title unless such corporation elects to continue its existence under it as pro- vided in the last section, but the laws under which such corporations were formed and exist are applicable to all such corporations, and are repealed subject to the provisions of this section. Sec. 2652. The provisions of this chapter are applica- ble to every corporation, unless such corporation is exemp- ted from its operation, or unless a special provision is made in relation thereto inconsistent with some provision in this chapter, in which case the special provision prevails. Sec. 2653. Every corporation not created under the laws of this Territory, doing business in this Territory, must within three months after the passage of this Title, or from the time of commencement to do business in this Territory, designate some person residing in the county in which the principal place of business of such corporation, in this Ter- ritory, is conducted, upon whom process issued by authority of, or under any law of this Territory, may be served, and within the time aforesaid must file such designation in the office of the Secretary of the Territory, and in the office of the Clerk of the District Court for such county, and a copy of such designation certified by either of said officers must be evidence of such appointment; and it is lawful to serve on such person, so designated, any process issued as afore- said, and such service must be'deemed a valid service there- of. Every such corporation which fails to comply with the provisions of this section shall be denied the benefit of the Statutes of this Territory limiting the time of the commence- ment of civil actions, and any limitations in such Statutes shall only run in favor of any such corporation during such time as shall be within the Territory such person duly desig- nated as aforesaid, upon whom such service can be made. Provided, further, That such foreign corporations comply- ing with the provisions of this section shall have all the rights and privileges of like domestic corporations, includ- ing the right to exercise the right of eminent domain, and shall be subject to the laws of this Territory applicable to like domestic corporations. ["Act of February 10th, 1887, in effect June 1st, 1887.*' | 327 Same. Application of this chapter. Foreign cor- porations to designate person upon whom process may be served. Rights of foreign cor- porations. Tit. IV. Ch. II. RAILROAD CORPORATIONS. §§ 2663-2666 • CHAPTER II. Railroad Corporations. Section Vm< \<0 1 tt he £i4 4i w •/- /2670 M-^>nt 2671 26(;;;. 2664. 2665. 2666. 2667. '/-2668. Election of directors. May borrow money and issue bonds. "Sinking fund. Enumeration of powers. Location of route. I >t real (•state. Acquire real estate. 2(572. 2673. Election of directors. May borrow money and issue bonds. Sinking fund. Enumeration of powers. Map and profile to be filed. Change of line of road. Time for construction. Crossings and intersections. Use of streets and alleys in city or town. Crossing railroad highways . Corporations may consolidate. Section 2<>7i. Checks to be affixed to baggage. 2(575. Duties of corporations. 2676. Damages for refusal. 2(577. Accommodations for passengers. 2678. Printed rules and regulations. 2679. Fences. 2680. Liable for stock killed. 2681. To keep book of descriptions. 2682. Carcass and hide. 2683. Bell or whistle. 2684. Refusing to pay fare. Section 2663. Directors of railroad corporations may be elected at a meeting of the stockholders other than the annual meeting, as a majority of the fixed capital stock may determined, or as the by-laws may provide; notice thereof to be given as provided for notices of meetings to adopt by- laws in chapter I of this Title. Sec. 2664. Railroad corporations may borrow, on the credit of the corporation, and under such regulations and restrictions as the directors thereof may impose, such sums of money as may be necessary for constructing and com- pleting their railroad, and may issue and dispose of bonds or promissory notes therefor, in denominations of not less than five hundred dollars, and at a rate of interest not ex- ceeding ten per cent per annum, and may also issue bonds or promissory notes, of the same denomination and rate of interest, in payment of any debts or contracts for construct- ing and completing their road, with its equipments and all else relative thereto. The amount of bonds or promissory notes issued for such purposes must not exceed, in all, the amount of their capital stock; and to secure the payment of such bonds or notes, they may mortgage their corporate property and franchise. Sec. 2665. The directors must provide a sinking fund, to be specially applied to tjie redemption of such bonds on or before their maturity, and may also confer on any holder of any bond or note issued, for money borrowed or in payment of any debt or contract for the construction and equipment of such road, the right to convert the principal due or owing thereon into stock of such corporation, at any time within eight years from the date of such bonds, under such regulations as the directors may adopt. Sec. 2666. Every railroad corporation has power: First. To cause such examination and surveys to be made as may be necessary to the selection of the most advantageous route for the railroad; and for such purposes their officers, agents, and employes may enter upon the lands or waters of any person, subject to liability for all damages which they do thereto; Second. To receive, hold, take, and convey, by deed or otherwise, as a natural person, such voluntary grants and donations of real estate and other property which may be made to it to aid and encourage the construction, mainte- nance, and accommodation of such railroad; Third. To purchase, or by voluntary grants or donations to receive, enter, take possession of. hold, and use all such 323 § 2666 RAILROAD CORPORATIONS. Tit. IV. Ch. II. real estate and their property as may be necessary for the construction and maintenance of such railroad, and for all stations, depots, and other purposes necessary to successful- ly work and conduct the business of the road; Fourth. To lay out its road, not exceeding nine rods wide, and to construct and maintain the same, with a single or double track, and with such appendages and adjuncts as may be necessary for the convenient use of the same; Pro- vided, That any such railroad corporation may take and hold any right of way or other property, of whatever width or ex- tent that it may acquire under the laws of Congress; Fifth. To construct its road across, along or upon any stream of water, water course, navigable stream, street, avenue or highway, or across any railway, canal, ditch or flume which the route of its road intersects, crosses or runs along, in such manner as to afford security for life and prop- erty; but the corporation must restore the stream or water- course, road, street, avenue, highway, railroad, canal, ditch or flume thus intersected to its former state of usefulness as near as may be, or so that the railroad shall not unnecessa- rily impair its usefulness or injure its franchise; Sixth. To cross, intersect, join or unite its railroad with any other railroad, either before or after construction, at any point upon its route, and upon the grounds of such other railroad corporation with the necessary turnouts, sid- ings and switches, and other conveniences in furtherance of the objects of its connections; and every corporation whose railroad is, or shall be hereafter, intersected by any new- railroad, must unite with the owners of such new rail- road in forming such new intersections and connections, and grant facilities therefor. And if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points or the manner of such crossings, in- tersections and connections, the same must be ascertained and determined as is provided in the Code of Civil Pro- cedure; Seventh. To purchase lands, timber, stone, gravel or other materials to be used in the construction and mainte- nance of its road, and all necessary appendages and adjuncts, or acquire them in the manner provided in the Code of Civil Procedure for the condemnation of lands; and to change the line of its road in whole or in part whenever a majority of the directors so determine, as is provided hereinafter, but no such change must vary the general route of such road as contemplated in its articles of incorporation; Eighth. To carry persons and property on their railroad and receive tolls or compensation therefor; Ninth. To erect and maintain all necessary and con- venient buildings, stations, depots, fixtures and machinery for the accommodation and use of their passengers, freight and business; Tenth. To regulate the time and manner in which pas- sengers and property shall be transported, and the tolls and compensation to be paid therefor within the limits prescribed by law, and subject to alteration, change or amendment by the legislature at any time; Eleventh. To regulate the force and speed of their loco- motives, cars, trains, or other machinerv used and em- 329 Lay out road, width of. Construct road, where. May cross or connect roads. May purchase materials. Carry persons and freight. Erect necessary buildings. Regulate time and toll. Regulate speed and establi-h regulations. Tit TV. Ch. II. RAILROAD CORPORATIONS. 5§ 2667-2G71 Ifap and i i to be ; Change of line of road. Time for construction. Crossings and intersections . Use of streets and alleys In city or town. ployed on their road, and to establish, execute, and enforce all needful and proper rules and regulations for the man- agement of its business transactions usual and proper for railroad corporations. Sec. 2667. Every railroad corporation in this Territory must, within a reasonable time after its road is finally lo- cated, cause to be made a map and profile thereof, and of the land acquired for the use thereof, and the boundaries of the several counties through which the road may run, and file the same in the office of the Secretary of the Territory; and also like maps of the parts thereof located in different counties, and file the same in the office of the Recorder of the county in which such parts of the road are, there to re- main of record forever. The maps and profiles must be cer- tified by the chief engineer, the acting president and sec- retary of such company, and copies of the same, so certified and filed, be kept in the office of the secretary of the cor- poration, subject to examination by all parties interested. Sec. 2668. If, at any time after the location of the line of the railroad and the filing of the maps and profiles there- of, as provided in the preceding section, it appears that the location can be improved, the directors may, as provided in subdivision 7, section 26G6, alter or change the same, and cause new maps and profiles to be filed, showing such changes, in the same offices where the originals are on file, and may proceed, in the same manner as the original loca- tion was acquired, to acquire and take possession of such new line, and must sell or relinquish the lands owned by them for the original location, within five years after such change. No new location as herein provided, must be run so as to avoid any points named in their articles of incor- poration. Sec. 2669. Every railroad corporation must, within two years after filing its original articles of incorporation, begin the construction of its road and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to extend its road beyond the point then completed is for- feited. Sec. 2670. Whenever the track of one railroad inter- sects or crosses the track of another railroad, whether the same be a street railroad, wholly within the limits of a city or town, or other railroad, the rails of either or each road must be so cut and adjusted as to permit the passage of the cars on each road with as little obstruction as possible; and in case the persons or corporations owning the railroads can- not agree as to the compensation to be made for cutting and adjusting the rails, the condemnation of the right of way over the one for the use of the other road maybe had in pro- ceedings under the Code of Civil Procedure, and the damages assi sssed and the right of way granted as in other cases. Sec. 2671. No railroad corporation must use any street, alley, or highway, or any of the land or water, within any incorporated city or town, unless the right to so use the same is granted by a two-thirds vote of town or city au- thority from which the right must emanate. 330 2672-2675 RAILROAD CORPORATIONS. Tit. IV. Ch.JL Sec. 2672. Whenever the track of such railroad crosses a railroad or highway, such railroad or highway may be carried under, over, or on a level with the track as may be most expedient; and in cases where an embankment or cut- ting necessitates a change in the line of such railroad or highway, the corporation may take such additional lands and materials as are necessary for the construction of such road or highway on such new line. If such other necessary lands cannot be had otherwise, they may be condemned as provided in the Code of Civil Pro- cedure; and when compensation is made therefor, the same becomes the property of the corporation. Sec. 2673. Two or more railroad corporations may con- solidate their capital stock, debts, property, assets, and fran- chises in such manner as may be agreed upon by their re- spective boards of directors. Xo such amalgamation or consolidation must take place without the written consent of the holders of three-fourths in value of all the stock of each corporation; and no such amalgamation or consolidation must in any way relieve any such corporation or the stockholders thereof from any and all just liabilities. In case of such amalgamation or consolidation, due notice of the same must be given, by advertisement for one month in at least one newspaper in each county, if there be one pub- lished therein, into or through wmich such roads run; and when the consolidation and amalgamation is completed, a copy of the new articles of incorporation must be filed in the office of the Secretary of the Territory and in the office of the Recorder of the county where the original articles of in- corporation were filed. Sec. 2674. A check must be affixed to every package or parcel of baggage when taken for transportation by any agent or employe of a railroad corporation, and a duplicate thereof given to the passenger or person delivering the same in his behalf; and if such check is refused on demand, the railroad corporation must pay to such passenger the sum of twenty dollars to be recovered in an action for damages; and no fare or toll must be collected or received from such pas- senger, and if such passenger has paid his fare the same must be returned by the conductor in charge of the train; and on producing the check, if his baggage is not delivered to him by the agent or employe of the railroad corpora- tion, he may recover the value thereof from the corpora- tion. Sec. 2675. Every such corporation must start and run their cars for the transportation of persons and property, at such regular times as they shall fix by public notice, and must furnish sufficient accommodations for the transporta- tion of all such passengers and property as, within a reason- able time previous thereto, offer or is offered for transporta- tion at the place of starting, at the junction of other rail- roads and at siding and stopping places established for re- ceiving and discharging way passengers and freight; and must take, transport and discharge such passengers and property at, from and to such places, on the due payment of toll, freight or fare therefor. 331 Crossing rail- road or high- ways. Corporations may consoli- date. Checks to be affixed to baggage. Duties of corporation' Tit. IV. Ch. 11. RAILROAD CORPORATIONS. 3§ 2676-2681 Damages tor refusal. Accomodations for passengers Printed rules and regulations. Fences. Liable for stock killed. To keep lx»ok '»f descriptions. Sec. 2676. In case of refusal by such corporation or their agents so to take and transport- any passengers or property, or to deliver the same at the regular appointed places, such corporation must pay to the party aggrieved all damages which are sustained thereby, with costs of suit. Sec. 2677. Every railroad corporation must furnish on the inside of its passenger cars, sufficient room and accom- modations for all passengers to whom tickets are sold for any one trip, and for all persons presenting tickets entitling them to travel thereon; and when fare is taken for trans- porting passengers on any baggage, wood, gravel or freight car, the same care must be taken and the same responsibil- ity is assumed by the corporation as for passengers on pas- senger cars. Sec. 2678. Every railroad corporation must have print- ed and conspicuously posted on the inside of its passenger cars its rules and regulations regarding fare and conduct of its passengers; and in case any passenger is injured on or from the platform of a car, or on any baggage, wood, gravel or freight car, in violation of such printed regulations, or in violation of positive verbal instructions or injunctions given to such passenger in person by any officer of the train, the corporation is not responsible for damages for such in- juries, unless the corporation failed to comply with the pro- visions of the preceding section. Sec. 2679. Railroad corporations must make and main- tain a good and sufficient fence on either or both sides of their track or property, whenever the line of their road at any time passes through or along, or abuts upon, or is con- tiguous to, private property, or enclosed land in the actual possession of another. Railroad corporations paying to the owner of the land through or along which their road is lo- cated, an agreed price, for making and maintaining such fence, or paying the cost of such fence with the award of damages allowed for the right of way for such railroad, are relieved and exonerated from all claims for damages arising out of the killing or maiming any animals of persons who thus fail to construct and maintain such fence: and the owners of such animals are responsible for any damages or loss which may accrue to such corporation from such animals being upon their railroad track, resulting from the non- construction of such fence, unless it is shown that such loss or damage occurred through the negligence or fault of the corporation, its officers, agents, or employes. Sec. 2680. Every railroad company operating any line of railroad within this Territory, that maims or kills any horse, mare, gelding, filly, jack, jenny or mule, or any cow, heifer, bull, ox, steer or calf, or any other domestic animal, by running any engine or cars over or against any such ani- mal, is liable to the owner of such animal for the damages sustained by such owner by reason thereof unless the injury occurred through the neglect or fault of the owner. Sec. 2681. Every railroad company must keep a book a1 a principal station in each county into or through which its road runs to be designated by the company, and a notice of the station so designated must be filed with the Recorder of the count v in which the station is located: and every such 332 5§ 2682-2694 BRIDGE, FERRY AND FLUME CORPORATIONS. Tit IV. Ch. IIL Carcass and hide yKuu^ XjJJ \>CK^lff company must cause to be entered in said book within fifteen days after the killing or maiming of any animal, a descrip- tion as nearly as may be of such animal, its color, age, marks and brands, and keep said book subject to public inspection. Should any company fail to keep such book, or to file such notice in the manner herein provided, or to enter therein such description of any animal maimed or killed, for a period of fifteen days thereafter, such company is liable to the owner of such animal for twice the value thereof. Sec. 2682. In case of maiming or killing of any cattle, sheep or hog, the body of the animal belongs to the company unless the owner elects within twelve hours to take the same in satisfaction or reduction of damages; the company . may proceed to take care of and preserve the body of such | JT" Sj^Ml aav iKdwyo animal; and must, unless taken by the owner, preserve the hide of all such cattle and sheep for at least thirty days for inspection at the station house nearest to the place where such maiming or killing occurred; and for every failure so to keep any such hide for inspection, the company, in addi- tion to the damages to the owner, forfeits one hundred dol- lars, to be recovered in an action in the name of the Territo- ry in any court of competent jurisdiction, one-half to be paid into the school fund of the county and the residue to the in- former. Sec. 2683. A bell, of at least twenty pounds weight, must be j)laced on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad crosses any street, road, or highway, and be kept ringing until it has crossed such street, road, or highway; or a steam whistle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at in- tervals until it has crossed the same, under a penalty of one hundred dollars for every neglect, to be paid by the corpora- tion operating the railroad, which may be recovered in an action prosecuted by the District Attorney of the proper county, for the use of the Territory. The corporation is also liable for all damages sustained by any person, and caused by its locomotives, trains, or cars, when the provisions of this section are not complied with. Sec. 2684. If any passenger refuses to pay his fare, or to exhibit or surrender his ticket, when reasonably requested so to do, the conductor and employes of the corporation may put him and his baggage out of the cars, using no unneces- sary force, at any usual stopping place, or near any dwell- ing house, on stopping the train. Bell or whistle. Refusing to pay fare. CHAPTER IIL Bridge, Ferry, Flume, and Boom Corporations. Section 2694. Must not take tollB until licensed. 2695 . When franchise ceases . Section 2696. Applies to natural persons. Section 2694. When a corporation is formed for the construction and maintenance of a bridge, ferry, flume, or boom, or for two or more of said purposes, it must not take tolls on or for the same until authority is granted therefor by the Boards of County Commissioners of the county or 333 Must not take tolls until licensed. Tit. IV. Ch. TV. TELEGRAPH AND TELEPHONE CORPORATIONS. §§2695-2703 When franchise cens' counties where its flume or abutments, landings or anchor- ages are situate. But after such authority is granted it may demand and receive such tolls as it is so authorized to take, and may. when necessary, secure the right of way for its flume, and the necessary chutes, raceways, landings, abut- ments, and anchorages under the provisions of the Code of Civil Procedure. Sec. 2695. Every such corporation ceases to be a body corporate: First. If, within one year from filing its articles of in- corporation it has not commenced the construction of its bridge, flume, or boom, as the case may be, and if within two years from such filing its bridge or boom is not com- pleted; Second. If, when the bridge or boom of such corporation is destroyed, it is not reconstructed and ready for use within two years thereafter; Tli ird. If the ferry of any such corporation is not in run- ning order within four months after authority to take tolls thereon is obtained, or if at any time thereafter it ceases, for a like term consecutively, to perform the duties imposed by law. Sec. 2696. When a bridge, ferry, flume, or boom is operated or owned by a natural person, this chapter is ap- plicable to such person in like manner as it is applicable to corporations. Applies to nutural persons^ CHAPTER IV. Telegraph and Telephone Corporations. May use right of way. Injuring property of, Party guilty of injury. Disposition of Section 2700. May use right of way along waters, roads and highways. 2701. Injuring telegraph or telephone property. Section" 2702. Party guilty of willful and malicious injury. 2703. May dispose of certain rights. Section 2700. Telegraph and telephone corporations may construct lines of telegraph or telephone along and upon any public road or highway, along or across any of the waters or lands within this Territory, and may erect poles, posts, piers, or abutments for supporting the insula- tors, wires, and other necessary fixtures of their lines in such manner and at such points as not to incommode the public use of the road or highway, or interrupt the naviga- tion of the waters. Sec. 2701. Any person who injures or destroys, through want of proper care, any necessary or useful fixture of any telegraph or telephone corporation, is liable to the corpora- tion for all damages sustained thereby. Sec. 2702. Any person who willfully or maliciously does any injury to any telegraph or telephone property mentioned in the preceding section, is liable to the corpora- tion for one hundred times the amount of actual damages sustained thereby, to be recovered in any court of competent jurisdiction. Sec. 2703. Any telegraph or telephone corporation may, at any time, with the consent of the persons holding two-thirds of the issued stock of the corporation, sell, lease, assign, transfer, or convey any rights, privileges, franchises, 334 §§ 2710-2713 WATER AND CANAL CORPORATIONS. Tit IV. Ch.V. Contract for supplying city or tuwn. Duties of water corporations. Rat a fixed by commissioners. or property of the corporation, except its corporate fran- chise. CHAPTER V. Water and Canal Corporations. Section | Section 2710. Corporations may obtain contract 2/12. Right to use streets, ways, alleys to supply city or town. and roads. 2711. Duties of water corporations . Rates [ 2713. To build and keep bridges in repair. fixed by commissioners. I Section 2710. No corporation formed to supply any city or town with water must do so unless previously au- thorized by an ordinance of the authorities thereof, or unless it is done in conformity with a contract entered into be- tween the city or town and the corporation. Contracts, so made are valid and binding inlaw, but do not take from the city or town the right to regulate the rates for water, nor must any exclusive right be granted. No contract or grant must be made for a term exceeding fifty years. Sec. 2711. All corporations formed to supply water to cities or towns must furnish pure, fresh water to the inhab- itants thereof for family uses, so long as the supply permits, at reasonable rates and without distinction of person, upon proper demand therefor; and must furnish water to the ex- tent of their means in case of fire or other great necessity, free of charge. The rates to be charged for water must be determined by commissioners to be selected as follows: Two by the city or town authorities, or when there are no city or town authorities, by the Board of Commissioners of the county, and two by the water company; and in case a majority cannot agree to the valuation, the four commis- sioners must choose a fifth commissioner; if they cannot agree upon a fifth, then the Probate Judge of the county must appoint such fifth person. The decision of the major- ity of the commissioners must determine the rates to be charged for water for one year, and until new rates are es- tablished. The Board of County Commissioners or the proper city or town authorities, may prescribe proper rules relat- ing to the delivery of water, not inconsistent with the laws of the Territory. Sec. 2712. Any corporation created under the provi- sions of this Title for the purposes named in this chapter, subject to the reasonable direction of the Board of County Commissioners, or city or town authorities, as to the mode and manner of using such right of way, may use so much of the streets, ways and alleys in any town, city or county, or any public road therein, as may be necessary for laying pipes for conducting water into any such town or city, or through or into any part thereof. Sec. 2713. Every water or canal corporation must con- struct and keep in good repair at all times for public use, jacross their canal, flume or water pipe, all of the bridges that the Board of Commissioners of the county in which such canal is situated may require, the bridges being on the lines of public highways and necessary for public uses in connection with such highways; and all water- works must be so laid and constructed as not to obstruct public high- ways. 335 Right to use streets, ways, alleys and roads. To build and keep bridges in repair. IV. Ch. VI. HOMESTEAD CORPORATIONS. §§ 2720-2723 Corporate , existence, time of. By-laws to be furnished, etc. Advertisement and sale of delinquent and forfeited shares. May borrow nnd loan. How and for what time. CHAPTER VI. Homestead Corporations. 2721. 2722. 2723. 2724. Section 2725 . Forfeiture for speculating in or own- ing landb exceeding, etc. When corporation is terminated and how. Payment of premiums. Annual report to be published. Publication in certain cases. 2727. 2728. 2729. Section 2720. Time of corporate existence. By-laws to be furnished, etc. Advertisement and sale of delin- 2726. quent and forfeited shares. May borrow and loan funds, how and for what time. Minor children, wards, and married women may own stock. Section 2720. Corporations organized for the purpose of acquiring lands in large tracts, paying off incumbrances thereon, improving and subdividing them into homestead lots or parcels, and distributing them among the sharehold- ers, and for the accumulation of a fund for such purposes, are known as homestead corporations, and must not have a corporate existence for a longer period than ten years. Sec. 2721. Such corporations must specify in their by- laws the times when the installments of the capital stock are payable, the amount thereof, and the fines, penalties, or forfeitures, incurred in case of default. A printed copy of the articles of incorporation and by-laws must be furnished to any shareholder on demand. Sec. 2722. Whenever any shares of stock are declared forfeited by resolution of the board of directors, the directors may advertise the same for sale, giving the name of the sub- scriber and the number of shares by notice of not less than three weeks, published at least once a week in a newspaper of general circulation in the city, town, or county where the principal place of business of such corporation is located. Such sale must be made at auction, under the direction of the secretary of the company. The corporation may be a bidder, and the shares may be disposed of to the highest bid- der for cash. No defect, informality, or irregularity in the proceedings respecting the sale invalidates it, if notice is given as herein provided. After the sale is made, the secretary must, on receipt of the purchase money, transfer to the purchaser the shares sold, and after deducting from the proceeds of such sale all installments then due, and all expenses and charges of sale, must hold the residue subject to the order of the de- linquent subscriber. Sec. 2723. Homestead corporations may borrow money for the purposes of the corporation not exceeding at any one time one-fourth of the aggregate amount of shares or parts of shares actually paid in, and the income thereof; no greater rate of interest must be paid therefor than twelve per cent per annum. For the purpose of completing the purchase of lands intended to be divided and distributed, they may borrow on the security of their shares on the land thus purchased, or that owned by the corporation at the time of procuring the loan any sum of money which, to- gether with the interested contracted to become due there- on, will not exceed ninety per cent of the unpaid amount subscribed by the shareholders: but no loan must be made to the corporation for a term extending beyond that of its existence. 336 §§ 2724-1728 HOMESTEAD CORPORATIONS. Tit. IV. Ch. VI. Sec. 2724. Such shares of stock in homestead corpora- tions as may be aquired by children the, cost of which, and the deposits and assessments on which' are paid from the personal earnings of the children, or with gifts from persons other than their male parents, may be taken and held for them by their parents or guardians. Married women may hold such shares as they acquire with their personal earn- ings, or those of their children, voluntarily bestowed there- for, or from property bequeathed or given to them by per- sons other than their husbands. Sec. 2725. Homestead corporations must not purchase and sell, or otherwise acquire and dispose of real property or any interest therein, or any personal property for the sole pur- pose of speculation or profit. Nor must any such corporation at any one time own or hold, in trust or otherwise, for its purposes, real property or any interest therein, which in the aggregate exceeds in cash value the sum of fifty thous- and dollars. For any violation of the provisions of this sec- tion, corporations forfeit their corporate rights and powers. On the application of any citizen to a court of competent jurisdiction, such forfeiture may be adjudged and the judg- ment carries with it cost of proceedings. Sec. 2726. Except for the purpose of winding up and settling its affairs, every homestead corporation must termi- nate at the expiration of the time fixed for its existence in the articles of incorporation, or when dissolved as provided in this Title. No dividend of funds must be made on termination of its corporate existence until its debts and liabilities are paid; and upon the final settlement of the affairs of the corpora- tion, or upon the termination of its corporate existence,the di- rectors, in such manner as they may determine, must di- vide its property among its shareholders in proportion to their respective interests, or upon the application of a ma- jority in interest of the stockholders, must sell and dispose of any or all real estate of the corporation upon such terms as may be most conducive to the interests of all the stock- holders, and must convey the same to the purchaser, and distribute the proceeds among the shareholders or may, at any time, when best for the interests of all the shareholders, cause the lands of the corporation to be subdivided into lots and distributed, by sale for premiums at auction or other- wise, among the shareholders. Sec. 2727. Such premiums on lots may be made paya- ble at the time they are bid off, and if not so paid on any lot of land, the directors may immediately offer the same for sale again. If made payable at a future day, and any share- holder fails to pay his bid on the day the same is made due and payable, the directors may advertise and sell the shares of stock representing the lots of land on which the pre- miums remain unpaid, in the manner provided in the by- laws for the sale of shares on account of delinquent install- ments and premiums. Sec. 2728. The actual financial condition of all home- stead corporations must, by the directors thereof, be pub- lished annually in a newspaper published at the principal place of business of the corporation, for four weeks, if pub- lished in a weekly, and two weeks if published in a dailv. 22 337 Minor children, wards, and married women may own stock. Forfeiture for speculating in or owning lands exceeding, etc. When corpora- tion is termin- ated, and how. Payment of premiums. Annual report to he published, TV. Ch. VII. INSURANCE CORPORATIONS. §§ 2729-2742 Publication in '•el tain cases. The statement must be made up to the end of each year, and must be verified by the oath of the president and secretary, showing the items of property and liabilities. Sec. 2729. In any case in which a publication is re- quired, and no newspaper is published at the principal place of business, the publication may be made in a paper 1 mblished at the capital of the Territory. CHAPTER VII. Insurance Corporations. Subscriptions to capital stock. Purchase and •conveyance of real estate. Poli ios, bow issued i>v whom Section 2740. Subscriptions to capital stock. Purchase and conveyance of real estate. Policies, how issued and by whom signed. Dividends, of what, and when de- clared . Directors liable for loss. Capital to be all paid in twelve months. Certificate of capital stock paid up to be filed. Property which may be insured. Funds may be invested, how. Risk, limitation of. Amounts to be reserved before mak- ing dividends. Capital stock of life insurance com- panies. 2741. 2742. 2743. 2744. 2745. 2746. 2747. 2748. 2749. 2750. 2751. Section 2752. Capital of foreign insurance com- panies required. Certificate to do buiness. Sworn statement. Agent upon whom service may be made. Annual statement required. Agent for foreign insurance com- pany may act when. Fees of Treasurer. Statement and certificate to be renewed annually. Investigation by Treasurer, may re- voke certificate when. Expense of investigation. Annual license. Blanks. Treas- urer's reports. Charitable socie- ties. Return of premium after loss. Penalty for transacting business without certificate. 2753. 2754. 2755. 2756. 2757. 2758. 2759. 2759a Section 2740. After the certificate of incorporation of an insurance company is issued, as provided in chapter I of this Title, the directors named in the articles of incorpor- ation must proceed in the manner specified, or 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 unsubscribed, and to secure subscriptions to the full amount of the fixed capital; to levy assessments and install- ments thereon, and to collect the same, as in this Title pro- vided. Sec. 2741. No insurance corporation must purchase, hold or convey real estate, except as hereinafter set forth, to wit: First. Such as is requisite for its accommodation in the convenient transaction of its business, not exceeding in val- ue thirty thousand dollars; Second. Such as is conveyed to it, or to any person for it, by way of mortgage or in trust or otherwise, to secure or provide for the payment of loans previously contracted, or for moneys due; Third. Such as is purchased at sales upon deeds of trust or judgments obtained or made for such loans or debts; Fourth. Such as is conveyed to it in satisfaction of debts previously contracted in the course of its dealings; all such real estate, so acquired, which is not requisite for the accom- modation of such corporation in the transaction of its busi- ness, must be sold and disposed of within five years after such corporation acquired title to the same. Sec. 2742. All policies made by insurance corporations must be subscribed by the president or vice-president, or in case of the death, absence or disability of those officers, by any two of the directors, and countersigned by the secre- tary of the corporation. All such policies are as binding 338 S 2743-2751 INSURANCE CORPORATIONS. Tit. IV. Ch. VII. Dividends, of what and when declared. Directors liable lor loss. Capital to be all paid in twelve months. Certificate of capital stock paid up to be filed. and obligatory upon the corporation as if executed over the corporate seal. Sec. 2743. The directors of every insurance corporation at such times as their by-laws provide, must make, declare and pay to the stockholders dividends of so much of the net profits of the corporate business and interest on capital invested, as to them appears advisable, but the moneys re- ceived and notes taken for premium on risks which are undetermined and outstanding at the time of making the dividend must not be treated as profits nor divided except as provided in this chapter. Sec. 2744. If any insurance corporation is under liabil- ities for losses to an amount equal to its capital stock, and the president or directors, after knowing the same, make any new or further insurance, the estates of all who make such insurance or assent thereto, are severally and jointly liable for the amount of any loss which takes place under such insurance. Sec. 2745. The entire capital stock of every fire insur- ance corporation must be paid up in cash within twelve months from the filing of the articles of incorporation, and no policy of insurance must be issued or risk taken until twenty-five per cent of the whole capital stock is paid up. Sec. 2746. The president and a maj ority of the directors must, within thirty days after the payment of the twenty- five per cent of the capital stock, and also within thirty days after the payment of the last installment or assessment of the capital stock limited and fixed, prepare, subscribe and swear to a certificate setting forth the amount of the fixed capital and the amount thereof paid up at the times respec- tively in this section named, and file the same in the office of the County Recorder of the county where the principal place of business of the corporation is located. Sec. 2747. Every corporation formed for fire insurance may make insurance on all insurable interests within the scope of its articles of incorporation, and may cause itself to be re-insured. Sec. 2748. Every fire insurance corporation may, by its board of directors or as the by-laws direct, invest its funds in loans upon real or personal property, or in the pur- chase of stocks, bonds or other securities, but no loan must be made on the stock of the corporation as security. Sec. 2749. Eire insurance corporations must never take on any one risk, a sum exceeding one-tenth part of their capital actually paid in and intact at the time of taking such risk, without re-insuring the excess above one-tenth. Sec. 2750. No corporation transacting fire insurance business under the laws of this Territory, must make any dividends except from profits remaining on hand after re- taining unimpaired: First, The entire subscribed capital stock; Second, All the premiums received or receivable on out- standing risks; Third. A sum sufficient to pay all losses reported or in the course of settlement, and all liabilities for expenses and taxes. Sec. 2751. Every corporation formed for the purpose of mutual insurance on the lives or health of persons, or 339 Property which may be insured. Funds may be invested, how. Risk, limita- tion of . Amounts to be reserved before making dividends. Capital stock of fife insurance companies. Tit. IV. Ch. VII. INSURANCE CORPORATIONS. §§ 2752-2757 Capital of foreign insurance companies required. Certificate to do business. Sworn statement of company. Agent upon whom service may be made. Annual statement required. May is6ue, when. Fees of treasurer. Statements and certificates renewed annually. Investigation by treasurer. against accidents to persons for life or for any -fixed period of time, or to purchase and sell annuities, must have a cap- ital stock of not less than one hundred thousand dollars. It must not make any insurance upon any risk or transact any other business as a corporation until its capital stock is fully paid up in cash. Sec. 2752. (Sec. 2.) That it shall be unlawful for any fire or life insurance company, association, corporation or partnership, incorporated by or under, or organized pursu- ant to the laws of any foreign government, or any State or Territory of the United States, or any person or persons, di- rectly or indirectly to take any risks or transact any busi- ness of fire or life insurance in this Territory, unless pos- sessed of an actual paid up capital of not less than one hun- dred thousand ($100,000.00) dollars. Sec. 2753. (Sec. 3.) It shall be unlawful for any agent of any fire or life insurance company to transact the busi- ness of fire or life insurance within [this [Territory, unless the insurance company shall have first obtained a certificate of authority from the Treasurer of the Territory; which cer- tificate shall be issued to any agent of such company, when- ever the said company shall have filed with the Treasurer of the Territory a statement sworn to by the secretary, pres- ident or manager of said company, showing, First. The name and locality of the company. Second. The amount of capital stock. Third. The capital paid up. Fourth. The amount of its assets and liabilities. Fifth. Net surplus over all liabilities. Sixth. The name of the attorney or agent for the Terri- tory, who shall be a resident thereof, upon whom service of civil process, in any civil action against said company, may be made. Seventh. Receipts and expenditures during the preceding year. Sec. 2754. (Sec. 4.) The statement referred to in section 3 of this act shall be renewed annually, in April of each year. The first statement may be made at any time. Sec. 2755. (Sec. 5.) It shall be lawful for the agent of any company or companies, which have complied with the provisions of this act, to procure insurance through such companies. Sec. 2756. (Sec. 6.) The Treasurer of the Territory shall be entitled to the following fees: For filing statements, one (1) dollar each; For issuing certificates, two (2) dollars each; Each certificate shall be renewed upon filing each annual statement, and each certificate shall expire upon the last day of April of each and every year. Sec. 2757. (Sec. 7.) Upon the written representation of three (3) citizens who are insured in the company com- plained of, or upon belief of the Treasurer that any company doing insurance business in this Territory has less than one hundred thousand ($100,000) dollars paid up, unimpaired cash capital, it shall be the duty of the Treasurer to make such investigation or require such proof as shall be satisfactory to him concerning the financial condition of such company; Provided, however, the certificate of the insurance officer 840 S§ 2758-2759a INSURANCE CORPORATIONS. Tit IV Ch. VII. Certificate revoked, when. Expenses of investigation. Annual license. Blank. Treasurer's reports. of any State having an insurance department, that such company has a paid up, unimpaired cash capital equal to one hundred thousand ($100,000) dollars shall be accepted by said Treasurer as satisfactory. If such company does not within sixty (GO) days after de- mand by the Treasurer, produce such certificate, the Treas- urer shall revoke his certificate of authority to such compa- ny to do business in this Territory, and in the meantime may withdraw or withhold his certificate of authority until such certificate is produced. Such company shall pay the expense of such investiga- tion, and upon refusal so to do, the certificate of authority may be withdrawn by the Treasurer. Sec. 2758. (Sec. 8.) The Treasurer shall collect from each company transacting an insurance business in this Ter- ritory, an annual license of fifty ($50) dollars payable at the time of filing the first statement, and annually thereafter, at the time of filing the statement in April of each year, and before he shall issue his certificate of authority. Blank licenses shall be issued and signed by the Controller of the Territory to the Treasurer from time to time as required, and charged to him. The Treasurer shall make monthly reports on the first of each month to the Controller, of the number of licenses issued by him. The money derived from the sale of licenses under this act shall be paid into the gen- eral fund. Provided, however, That nothing contained in this act shall be construed to apply to any charitable secret society, or to prevent the same from issuing benefits to its own members. Sec. 2759. (Sec. 9.) In the event of the destruction of any insured property, on which the amount of the appraised or agreed loss shall be less than the total amount insured there- on, the insuring company or companies shall return to the insured, the insurance premium for the excess of {he insur- ance over the appraised or agreed loss, to be paid at the same time and in the same manner as the loss shall be paid. Sec. 2759a. (Sec. 10.) Any person or agent transact- ing an insurance business without the certificate herein re- quired, or after such certificate shall have been withdrawn or revoked, shall be guilty of a misdemeanor, and upon con- viction thereof shall be fined in any sum not exceeding one hundred ($100.00) dollars, or imprisonment in the county jail not exceeding six (6) months, or by both such fine and im- prisonment. ["Act of Jan. 26, 1887, in effect immediately."] Charitable societies. Loss, return of premium. Penalty for transacting business without cer- tificate. 341 Tit. IV. Ch. VIII. BENEVOLENT COKPORATIONS. §§ 2760-2765 Corporations for purposes other than for profit, how formed. Additional facte set out. Corporation to hold property. How much land certain societies may hold. Corporations, by order of district court, may mortgage or sell real estate. What may bo provided for in by-laws, etc. CHAPTER VIII. Religious, Social and Benevolent Corporations. SECTION 2700. 2761. 2702. 2703. other Corporations for purposes than profit, how formed. Additional facts articles of incorpo- ration to set out. Corporations to hold property. How much land certain societies may hold. Skction 2764. Corporations, by order of dis+rict court, may mortgage or sell real estate. 2705. What may be provided for in their by-laws, etc. 2706. Mutual relief associetions. Section 2760. Any number of persons associated to- gether for any purpose, where pecuniary profit is not their object, may, in accordance with the rules, regulations or discipline of such association, elect directors, the number thereof to be not less than three nor more than eleven, and may incorporate themselves as provided in this Title. Sec. 2761. In addition to the requirements of chapter I, the articles of incorporation of any such association must set forth the holding of the election for directors, the time and place where 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 officers conducting the election. Sec. 2762. All such corporations may hold all the prop- erty of the association owned prior to incorporation or ac- quired thereafter in any manner, and transact all business relative thereto; but no such corporation must own or hold more real estate than may be necessary for the business and objects of the association. Sec. 2763. In addition to that provided for in the pre- ceding section, Masons, Odd Fellows, and Pioneer incorpor- ated associations may hold such real estate as may be nec- essary to .carry out their charitable purposes, or for the es- tablishment and endowment of institutions of learning con- nected therewith. Sec. 2764. Corporations of the character mentioned in this chapter, may mortgage or sell real property held by them upon obtaining an order for that purpose from the District Court held in the county in which the property is situated. Before making the order, proof must be made to the satisfaction of the court that notice of the application for leave to mortgage or sell has been given by publication in such manner and for such time as the court or Judge has directed, and that it is for 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 corpora- tion may oppose the granting the order of it by affidavit or otherwise. Sec. 2765. Corporations organized for purposes other than for profit may in their by-laws, ordinances constitutions, or articles of incorporation, in addition to the provisions in Chapter I, provide for: First. The qualifications of members, mode of election, and terms of admission to membership; Second. The fees of admission and dues to be paid to their treasury by members; Third. The expulsion and suspension of members for 342 §§ 2766-2777 AGKICULTURAL FAIR CORPORATIONS. Tit IV. Ch.IX. misconduct or non-payment of dues; also, for restoration to membership; Fourth. Contracting, securing, paying, and limiting the amount of their indebtedness; Fifth. Other regulations not repugnant to the laws of the Territory and consonant with the objects of the corpor- ation. Sec. 2766. Associations may be formed for the purpose Mutual relief of paying to the nominee of any member, a sum upon the associations. death of said member not exceeding three dollars for each member of such association. No such association must ex- ceed in number one thousand persons. It may, upon the death of each member, levy an assessment upon each mem- ber living at the time of the death, not exceeding three dol- lars for each member, and collect the same, and pay the same to the nominee of such deceased; and may also pro- vide the payment of such annual payments of members as may be deemed best. Such annual assessment upon any one member not to be raised above the annual assessment established at the time such member joined such associa- tion. Such association, by its name, may sue and be sued, and may loan such funds as it may have on hand, and may own sufficient real estate for its business purposes, and such other real estate as it may be necessary to purchase on fore- closure of its mortgages; Provided, Such real estate so ob- tained through foreclosure shall be sold and conveyed with- in five years from the day title is obtained, unless the Dis- trict Court of the proper district shall, upon petition and good cause shown, extend the time. CHAPTER IX. Agricultural Fair Corporations. Section 2777. Not for profit. 2778. Aid from the countv. Section 2775. May acquire and hold real estate, how much. 2776. Muat not contract debts or liabili- ties exceeding amount in treasury. Section 2775. Agricultural fair corporations may pur- May acquire chase, hold, or lease any quantity of land, not exceeding in and hoIc* the aggregate one hundred and sixty acres, with such Low much.' buildings and improvements as may be erected thereon, and may sell, lease, or otherwise dispose of the same, at pleas- ure. This real estate must be held for the purpose of erect- ing buildings and other improvements thereon, to promote and encourage agriculture, horticulture, mechanics, manu- factories, stock raising, and general domestic industry. Sec. 2776. Such corporation must not contract any Must not con- debts or liabilities in excess of the amount of money in the tract debts treasury at the time of contract, except for the purchase of ( real property, for which they may create a debt not exceed- ing five thousand dollars, secured by mortgage on the prop- erty of the corporation. The directors who vote therefor are personally liable for any debt contracted or incurred in violation of this section. Sec. 2777. Agricultural fair corporations are not con- ducted for profit, and have no capital stock or income other than that derived from charges to exhibitors and fees for 313 exceeding amount in treasury. Not for profit. Tit TV. Ch.X. GAS CORPORATIONS. £§ 2778-2790 Aid from the county. membership, which charges, together with the term ofmem- bership and the mode of acquiring the same, must be pro- vided for in their by-laws. Such fees must never be greater than to raise sufficient revenue to discharge the debt for the real estate and the improvements thereon, and to defray the current expenses of fairs. Sec. 2778. (Sec. 1.) The Boards of County Commis- sioners of any county in this Territory, in which there is a regularly organized agricultural fair association, or any other corporation or company having for its object the ex- hibition of live stock and agricultural products of their county, or of the Territory, may, in their discretion, appro- priate annually out of the county treasury, any sum not to exceed five hundred dollars, to be paid to the trustees or managers of such association, to assist in defraying the ex- penses of such fair. But no appropriation can be made in any year in which a fair is not held, nor can any appropri- ation be made to more than one such association in any one year. Appropriations made under this act shall be paid out of the County General Fund. [Act of Feb. 10, 1887. "In effect immediately."] Must obtain privilege from city or town. Gas to be supplied on written application W ben cor- porations may refuse to supply gas. Agent of I oration may inapoct • is. CHAPTER X. Gas Corporations. Section 2790. Agents of corporations spect meters. 2791. Wben persons neglect to may be sbut off. may in- pay, gas Section 2787. Corporations to obtain privilege from city or town. 2788. Gas to be supplied on written appli- cation. 2789. Wben corporations may refuse to supply gas. Section 2787. No corporation hereafter formed must supply any city or town with gas, or lay down mains or pipes for that purpose in the streets or alleys thereof, with- out permission from the city or town authorities. Sec. 2788. Upon the application in writing of the owner or occupant of any building or premises distant not more than one hundred feet from any main of the corpora- tion, and payment by the applicant of all money due from him, the corporation must supply gas as required for such building or premises, and can not refuse on the ground of any indebtedness of any former owner or occupant thereof, unless the applicant has undertaken to pay the same. If, for the space of ten days after such application, the corpor- al t ion refuses or neglects to supply the gas required, it must pay to the applicant the sum of fifty dollars as liquidated damages, and five dollars a day as liquidated damages, for every day such refusal or neglect continues thereafter. Sec. 2789. No corporation is required to lay service pipe where serious obstacles exist to laying it, unless the applicant, if required, deposits in advance, with the corpor- ation a sum of money sufficient to pay the cost of laying such service pipe, or his proportion thereof. Sec. 2790. Any agent of a gas corporation exhibiting written authority, signed by the president or secretary there- of for such purpose, may enter any building or premises I ighted with gas supplied by such corporation, to inspect the gas meters therein, to ascertain the quantity of gas sup- 344 §§ 2791-2800 LAND AND BUILDING CORPOKATIONS. Tit. IV. Ch.XI plied or consumed. Every owner or occupant of such buildings who hinders or prevents such entry or inspection must pay to the corporation the sum of fifty dollars as liquidated damages. Sec. 2791. All gas corporations may shut off the sup- ^t^ybe ply of gas from any person who neglects or refuses to pay when0 ' for the gas supplied, or the rent for any meter, pipes, or fittings provided by the corporation as required by his con- tract; and for the purpose of shutting off the gas in such case any employe of the corporation may enter the building or premises of such person, between the hours of eight o'clock in the forenoon and six in the afternoon of any day, and remove therefrom any property of the corporation used in supplying gas. CHAPTER XL Land and Building Corporations. 2797 2798. 2799. 2800. Section 2801. What the by-laws may provide . Secretary must make annual state- ment and publish same. Liability of shareholders for debts. Consolidation and transfer of cor- poration business and property. Married women and minors. 2802. 2803. 2804. 2805. Section 2796. How organized. * May borrow money. Powers and object of the corpora- tion. May insure the lives of its members and debtors. What real estate may be owned at any one time . Section 2796. Corporations organized for the erection of buildings and making other improvements on real proper- ty, may raise funds in shares not exceeding two hundred dol- lars each, payable in periodical installments. Such bodies are known as land and building corporations, and may be organized with or without a capital stock. Sec. 2797. Any such corporation may borrow money for the purpose of carrying out its objects, and may give as security therefor its snares or mortgages upon its real es- tate. Sec. 2798. Any such corporation may purchase real es- tate and erect buildings for its members, and make loans to its members for the purpose of aiding them in acquiring and improving real estate. Such loan must in all cases be secured on such real estate. Sec. 2799. Such corporation may insure, in some life insurance company, the lives of its members and debtors. In case of the death of a debtor or member so insured, the amount recovered on the policy, must be applied to ex- tinguish the indebtedness, including the premium paid, and the residue, if any, must be paid to the legal representative of the decendent. Sec. 2800. Any such corporation may purchase, hold, and convey real estate, as follows: First. The lot and building in which the business of the corporation is carried on, the cost of which must not exceed twenty thousand dollars; Second. Such as may, from time to time, be necessary to supply the wants of members, the cost of which held unalloted to the members thereof at any one time, must not exceed the sum of fifty thousand dollars; 345 How organized. May borrow money. Powers and object of. May insure the lives of members and debtors . What real estate may be owned at any one time. Tit. TV. Ch.XL LAND AND BUILDING CORPORATIONS. §§ 2801-2804 What the by-laws may provide. Secretary must make annual statement and publish same. Liability of shareholder 8 for debts. Consolidation and transfer of corporation businehs and prope Third. Such as have been mortgaged, pledged, or con- veyed to it in trust, to secure money loaned or to secure the purchase price thereof in pursuance of the regular business of the corporation. Sec. 2801. The by-laws of such corporations must spec- ify the amount of the periodical subscriptions or payments to be made by each member, the time and manner in which such payments are to be made; the fines and forfeitures for default; the time and manner of election of directors and other officers, and their terms of office; the manner in which the real estate may be distributed, allotted or sold to its members; the terms and conditions upon which loans may be made to its members, and by them repaid to the corpora- tion; the manner in which a person may become, and cease to be a member; the conditions on which members may withdraw from the corporation, and the provisions for the payment to withdrawing members of the sums of money due them, arising from subscriptions or payments, and the proportion of the profits such withdrawing members may receive on withdrawal. Sec. 2802. The secretary of any such corporation must, once in each year during: the existence of the corporation, prepare a full and explicit statement of the financial affairs thereof, comprising a balance sheet, statements of receipts and expenditures, profit and loss, and asset? and liabilities, which must be audited and verified by two competent per- sons (not directors) elected by the general body of share- holders, and be countersigned by the president and secre- tary. A copy of such statement must be printed and circu- lated among the members, and appear immediately after the annual meeting of the corporation, daily at least one week, or weekly at least four weeks, in one or more news- papers published at the place of business of the corporation. Sec. 2803. Every present and past member of such cor- poration is personally liable for such proportion of all its debts and liabilities, incurred during his membership, as the number of shares subscribed by him bears to the whole number of subscribed shares; but no past member is liable for such contribution if more than one year elapsed since he ceased to be a member before suit is commenced, nor for any debt or liability contracted after the time at which he ceased to be a member, nor unless it appears to the Court that that corporation is unable to satisfy such debts and lia- bilities; nor must any contribution be required from any member or past member exceeding the amount unpaid on the shares in respect to which it is liable. Sec. 2804. Any two or more such corporations may unite and become incorporated in one body, with or without any dissolution or division of the funds of such corporation, or either of them; or any such corporation may transfer its engagements, funds and property to any other such corpor- ation upon such terms as may be agreed upon by two-thirds of the members of each of such bodies present at general meet- ings of the members, convened for the purpose, by notice, stating the object of the meeting, sent through the post of- fice to every member, and by general notice appearing daily, 346 § 2805 LAND AND BUILDING CORPORATIONS. Tit. IV. Ch. XL at least one week, or weekly, at least two weeks, in some newspaper published at the place of the principal business of the corporation; but no such transfer can prejudice any right of any creditor of either corporation. Sec. 2805. Married women and minors may be admit- Married women ted as members, and may take and hold shares in such cor- and minors. porations, and may execute all necessary instruments, and give all necessary acquittances, and sell and transfer their shares in like manner as other members. 347 Tit. V. Ch. I. GENERAL PROVISIONS. §§ 2825-2836 TITLE V. PROPERTY AND OWNERSHIP. CHAPTER I. General Provisions. Real property Personal property. Who may own pr >perty. Interests in common. Community property . Vested interests. Contingent interests. Two or more future interests. Posthumous children. Comp. laws, 604. Qualities of expectant OBtat Same. How loi)^' it .mi i mdedL Section 2825. Real property. 2826. Personal property. 2827. Who may own property. 2828. What interests are in common. 2829. Community property. 2830. Vested interest. 2331. Contingent interest. 2832. Two or more future interests. Section 2833. Posthumous children. 2834. Qualities of expectant estates. 2835. Same. 2836. How long it may be suspended. 2837. Future interests, when defeated. 2838. Future interests, when not defeated , 2839. Same. Section 2825. Real property or real estate consists of: 1. Lands, possessory rights to land, ditch and water rights, and mining claims, both lode and placer; 2. That which is affixed to land; 3. That which is appurtenant to land. Sec. 2826. Every kind of property that is not real is personal. Sec. 2827. Any person, whether citizen or alien, may take, hold, and dispose of property, real or personal. Sec. 2828. Every interest created in favor of several persons in their own right, is an interest in common, unless acquired by them in partnership, for partnership purposes, or unless declared in its creation to be a joint interest, or unless acquired as community property. Sec. 2829. Community property' is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either. Sec. 2830. A future interest is vested when there is a person in being who would have a right, defeasible or inde- feasible, to the immediate possession of the property upon the ceasing of the immediate or precedent interest. Sec. 2831. A future interest is contingent wrhilst the person in whom, or the event upon which, it is limited to take effect remains uncertain. Sec. 2832. Two or more future interests may be created to take effect in the alternative; so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly. Sec. 2833. When a future interest is limited to suc- cessors, heirs, issue or children, posthumous children are en- titled to take in the same manner as if living at the death of their parent. Sec. 2834. Future interests pass by succession, will and transfer in the same manner as present interest. Sec. 2835. A mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind. Sue. 2836. 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 of the limitation or condi- tion, except in the single case of contingent remainder in 343 5§ 2837-2855 ESTATES IN REAL PROPERTY. Tit. V. Ch. II. fee authorized in section two thousand eight hundred and fifty-one. Sec. 2837. A future interest, depending on the contin- gency 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. Sec. 2838. No future interest can be defeated or barred by any alienation or other act of the owner of the inter- mediate or precedent interest, nor by any destruction of such precedent interest by forfeiture, surrender, merger, or otherwise. Sec. 2839. No future interest, valid in its creation, is same. defeated by the determination of the precedent interest be- fore the happening of the contingency on which the future interest is limited to take effect; but should such contin- gency afterwards happen, the future interest takes effect in the same manner and to the same extent as if the pre- cedent interest had continued to the same period. Future interests when defeated. Fxiture interests when not defeated. CHAPTER II. Estates in Real Property. 2851. 2852. 2853. 2854. 2855. Section 2856. Effect of power of appointment. Tenancy at will may be terminated by notice. Effect of notice. Re entry, when and how to be made. Summary proceedings in certain cases provided for. Notice not necessary before action . 2857. 2858. 2859. 2860. 2861. Section 2850. Future estates, what. Contingent remainder in fee. Limitation of successive estates for life. Remainder upon estates for life or term of years. Remainder upon a contingency. Heirs of a tenant for life, when to take as purchasers. Section 2850. 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 pre- cedent estate created at the same time. Sec. 2851. A contingent remainder 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 lim- ited die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain majority. Sec. 2852. Successive estates for life can not 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 in its creation, takes effect in the same manner as if no other life estate had been created. Sec. 2853. No remainder can be created upon suc- cessive estates for life, provided for in the preceding section, unless such remaider is in fee; nor can a remainder be created upon such estate in a term for years, unless it is for the whole residue of such term. Sec. 2854. A remainder may be limited on a contin- gency which, in case it should happen, will operate to abridge or determine the precedent estate; and every such remainder is to be deemed a conditional limitation. Sec. 2855. When a remainder is limited to the heirs, or heirs of the body, of a person to whom a life estate in 349 Future estate?, what. Contingent remainder in fee. Limitation of successive estates for life. Remainder upon estates for life or term of years. Remaindf > upon a con- tingency . Heirs of a tenant for life, when to take as purchasers. Tit. V. Ch. Ill RIGHTS AND OBLIGATIONS OF OWNERS. 2856-2877 Effect of power of appointment. Tenancy tit will may be terminated by notice. Effect of notice Re-entry, wben and how made. Summary proceedings. Notice not necessary before action. the same property is given, the persons who,. on the term- ination 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 success- ors of the owner for life. Sec. 2856. A general or special power of appointment does not prevent the vesting of a future estate limited to take effect in case such power is not executed. Sec. 2857. A tenancy or other estate at will, however created, may be terminated by the landlords giving notice in writing to the tenant, in the manner prescribed by the Code of Civil Procedure, to remove from the premises with- in a period of not less than one month, to be specified in the notice. Sec. 2858. After such notice has been served, and the period specified by such notice has expired, but not before, the landlord may re-enter, or proceed according to law to recover possession. Sec. 2859. Whenever the right of re-entry is given to a grantor or a lessor in any grant or lease, or otherwise, such re-entry may be made at any time after the right has ac- crued, upon three days' notice, as provided in the Code of Civil Procedure. Sec. 2860. Summary proceedings for obtaining posses- sion of real property forcibly entered, or forcibly and unlaw- fully detained, are provided for in the Code of Civil Proced- ure, y Sec. 286 1 . An action for the possession of real property, leased or granted, with a right of re-entry, may be main- tained at any time, in the District Court, after the right to re-enter has accured, without notice. Rights of grantees of rents and n - version. I -nihilities of assignee of Lessee. Rights of lessees and then- assignees, etc. CHAPTER III. Rights and Obligations of Owners. Section 2875. Rights of grantees of rents and re- versions. 2876. Liability of assignee of lessee. 2877. Rights of lessees and their assignees, etc. 2878. Remedy on leases for life. 2879. Rent dependent on life. 2880. Remedy of reversions, etc. Section 2881. Terms of lease may be changed by notice . 2882. What fixtures tenant may remove. 2883. Boundaries, by-ways. 2884. Lateral and sub-adjacent support; right of owner to excavate. 2885. Duties of tenant for life. 2886. Monuments and fences. Section 2875. A person to whom any real property is transferred or devised, upon which rent has been reserved or to whom 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 for- feiture, as his grantor or devisor might have had. Sec. 2876. Whatever remedies the lessor of any real property has against his immediate lessee for the breach of any agreement in the lease, or for recovery of the possession, he has against the assignees of the lessee for any cause of action accruing while they are such assignees except where the assigment is made by way of security for a loan, and is not accompanied by possession of the premises. Sec. 2877. 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 350 2878-2886 RIGHTS AND OBLIGATIONS OF OWNERS. Tit V. Ch. III. the assigns of the lessor, and the assigns of the lessee may have against the lessor and his assigns, except upon cove- nants against incumbrances or relating to the title or pos- session of the premises. Sec. 2878. Rent due upon a lease for life may be recov- ered in the same manner as upon a lease for years. Sec. 2879. Rent dependent on the life of a person may be recovered after as well as before his death. Sec. 2880. A person having an estate in fee, in remain- der or reversion, may maintain an action for any injury done to the inheritance, notwithstanding an intervening es- tate for life or years, and although, after its commission, his estate is transferred, and he has no interest in the prop- erty at the commencement of the action. Sec. 2881. In all leases of lands or tenements, or of any 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 effect at the expiration of the month. 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 ten- ant shall continue to hold the premises after the expiration of the month. Sec. 2882. A tenant may remove from the demised premises, any time during the continuance of his term, any- thing affixed thereto for the purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises. Sec. 2883. 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. Sec. 2884. Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjacent 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 precautions to sustain the land of the other, and giving previous reasonable notice to the other of his intention to make such excavations. Sec. 2885. 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 extraordinary assessments benefiting the whole inheritance. Sec. 2886. 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 without fencing, in which case, if he af- terwards incloses it, he must refund to the other just pro- portion of the value, at that time, of any division fence made by the latter. 351 Remedy on leases tor life. Rent dependent on life. Remedy of reversioners, etc Terms of lease may be changed by notice. What tenures tenant may remove. Boundaries, by-ways. Lateral and subjacent support, right of owner to excavate. Duties of tenant for life. Monuments and fences. Act Feb. 5. L885. Tit. /'. Ch. IV. PERSONAL PROPERTY. 5§ 2890-2891 CHAPTER IV. Personal Property. By what law governed. Transfer and survivors- hip. Section 2890. By what law governed. Section 2891. Transfer and survivorship. Section 2890. 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. Sec. 289 1 . A thing in action arising out of the violation of a right of property, or out of an obligation, may be trans- ferred by the owner. Upon the death of the owner it passes to his personal representatives, except where, in the cases provided in the Code of Civil Procedure, it passes to his de- visees or successor in office. 352 §§ 2900-2921 TRANSFERS IN GENERAL.— REAL PROPERTY. Tit. VI. Gh.I-Il. TITLE VI. TRANSFERS. CHAPTER I. Transfers in General. Section 2900. Possibility. 2901 . Right of re-entry can be transferred. 2902. Owner ousted of possession may transfer. 2903. When oral. Section 2904. Grant, what. 2905. Words of inheritance unnecessary. 2906. Meaning of "heirs" and "issue" in certain remainders. 2907. Tenancy in common. Section 2900. A mere possibility not coupled with an interest, cannot be transferred. Sec. 2901. A right of re-entry or of re-possession for breach of condition subsequent, can be transferred. Sec. 2902. Any person claiming title to real property in the adverse possession of another, may transfer it with the same effect as if in actual possession. Sec. 2903. A transfer may be made without writing, in every case in which a writing is not expressly required by statute. Sec. 2904. A transfer in writing is called a grant, or conveyance, or bill of sale. Sec. 2905. Words of inheritance or succession are not requisite to transfer a fee in real property. Sec. 2906. Where a future interest is limited by a grant to take effect on the death of any person without heirs, or heirs of his body, or without issue, or in equivalent words, such words must be taken to mean successors, or issue liv- ing at the death of the person named as ancestor. Sec. 2907. Every interest in real estate granted or de- vised to two or more persons, other than executors or trus- tees, as such constitutes a tenancy in common, unless ex- pressly declared in the grant or devise to be otherwise. Possibility. Right of re- entry . Act Jan. 12,1875 Owner ousted of possession may transfer. Comp. laws, 602. When oral. Grant what. Inheritance, words of unnecessary. Comp. laws, 603. Meaning of "heirs" and "issue," in certain remainders. Comp. laws, 604. Tenancy in common. Comp. laws, 603. CHAPTER II. Transfer of Real Property. 2921. 2922. 2923. 2924. 2925. 2926. 2927. 2928. Section 2920. Conveyance, how made. Conveyance of homestead or resi- dence. Conveyance by married women, how acknowledged. Same, when executed without her husband. Power of attorney of married wo- men; acknowledgment. Attorney in fact ; how must execute for principal. What easements pass with prop- erty. When fee simple is presumed to pass. Subsequently acquired title passes by operation of law. Section 2920. A conveyance of an estate in real prop- erty may be made by an instrument in writing, subscribed by the party disposing of the same, or by his agent there- unto authorized by writing. Sec. 2921. No estate in the homestead of a married per- son, or in any part of the community property occupied as a 23 353 Section 2929. Grant ; how far conclusive on pur- chasers. Conveyance by owner for life or for years. Grant made on condition subse- quent. Instrument to pass an estate on con- dition precedent only an execut- ory contract. Conveyance of rents, reversions and remainders. Boundary by highway. Implied covenants. Incumbrances ; what include. Lineal and collateral warranties abol- ished. 2930. 2931. 2932. 2933. 2934. 2935. 2936. 2937. Conveyance how made. Comp. laws, Jan. 12, 1875. Conveyance of homestead or residence. Tit. VI. Ch.IL TRANSFER OF REAL PROPERTY. §§ 2922-2930 Conveyance by n nirried women, ac- knowodgement. Comn. laws, OOO. Same, when executed without her husband. Power of attorney of married women . Attorney in fact, how must execute for principal. What ease- ments pass with property. N. S. When fee simple title is presumed to pass. Subsequently acquired title passes by operation of law. Comp. laws, 002. Conveyance, how far con- clusive on purchaser. Conveyances for life or years. residence by a married person can be conveyed or incum- bered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or incumbered, and it be acknowledged by the wife as pro- vided in chapter III of this Title. Sec. 2922. No estate in the real property of a married woman passes by any grant or conveyance purporting to be executed or acknowledged by her, unless the grant or in- strument is acknowledged by her in the manner prescribed in chapter III of this Title, and her husband, if a resident of the Territory, joins with her in the execution of such grant or conveyance. Sec. 2923. If her husband has not been a bona fide resident of the Territory at any time within the year next preceding her conveyance, a married woman may convey her separate real property, or any interest therein, by an in- strument in writing, by her subscribed, and acknowledged by her in the manner required by chapter III of this Title. Sec. 2924. A power of attorney of a married woman, authorizing the execution of an instrument transferring an estate in her separate real property, has no validity for that purpose until acknowledged by her in the manner provided in Chapter III, of this Title, and her husband, if a resident of the Territory, join therein. But if her husband has not been a bona fide resident of the Territory at any time with- in one year next preceding the execution of the power, she may execute the same alone, as in the last section provided for the execution by her of conveyances when her husband is a non-resident. Sec. 2925. When an attorney in fact executes an in- strument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact. Sec. 2926. A transfer of real property passes all ease- ments attached thereto, and creates in favor thereof an easement to use other real property of the person whose es- tate is transferred, in the same manner and to the same ex- tent as such property wras obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. Sec. 2927. A fee simple title is presumed to be in- tended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended. Sec. 2928. Where a person purports by proper instru- ment to convey or grant real property 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 suc- cessors. Sec. 2929. Every grant or conveyance of an estate in real property is conclusive against the grantor, also against everyone subsequently claiming under him, except a pur- chaser or incumbrancer, who in good faith, and for a valua- ble consideration, acquires a title or lien by an instrument that is first duly recorded. Sec. 2930. 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 es- 354 §§ 2931-2937 TRANSFER OF REAL PROPERTY. Tit. VI. Ch. 11. Grant made on condition subsequent. Instrument to pass an estate on condition precedent only an executory- contract. tate, but passes to the grantee all the estate which the grantor could lawfully transfer. Sec. 2931. Where a grant is made upon condition sub- sequent, and is subsequently defeated by the non-perform- ance of the condition, the person otherwise entitled to hold under the grant must reconvey the property to the grantor or his successors by grant, duly acknowledged for record. Sec. 2932. An instrument purporting to be a grant of real property, to take effect upon condition precedent, does not pass the estate upon the performance of the condition. Such instrument is an executory contract for the convey- ance of the property. Upon compliance with the condition, the grantee is entitled to a grant or conveyance from the grantor or his successors, for the property, duly acknowledged for record. Sec. 2933. Grants of rents or of reversions or of re- mainders are good and effectual without attornments of the tenants; but no tenant who, before notice of 'the grant, has paid rent to the grantor, must suffer any damage thereby. Sec. 2934. 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 center thereof, unless a different intent appears from the grant. Sec. 2935. From the use of the word "grant" in any conveyance by which an estate of inheritance, possessory right, or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless restrained by express terms contained in such con- veyance: 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 conveyance free from incumbrances done, made, or suffered, 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. Sec. 2936. The term "incumbrances" includes taxes, assessments, and all liens upon real property. Sec. 2937. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who has made any covenant or agreement in reference to the title of, in, or to any real property, are an- swerable 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. Grant of rents, reversions, etc. Boundary by highway. Implied covenants. Comp. laws, 604. Incumbrances, what include. Lineal and collateral warranties abolished. Comp. laws, 604 . 355 Tit. VI. Ch. HI. ACKNOWLEDGMENTS. 2950-2955 CHAPTER III. Acknowledgments. Acknowledg- ments taken, by whom. Same. 8 ees., 597. By whom taken without the Territory. Comp. laws. 597. By -whom taken without the United States. Section 2950. By whom acknowledgments may be "taken in this Territory. 2951. Same. 2952. By whom taken without the Terri- tory. 2953. By whom taken without the United States. 2954. Deputy can take acknowledgment, 2i»55. Requisites for acknowledgments. 2956. Acknowledgment by married wo- men. 2957. Officer must endorse certificate. 2958. General form of certificate. 2959. .Form of acknowledgment by cor- poration. 2960. Form of certificate of acknowledg- ment by married women. 2961. Form of certificate of acknowledg- ment by attorney in fact. 2962. Officers must affix" their signatures. 2963. Certificate of authority of justices in certain cases. Section 2964. Proof of execution, how made. Witness must be personally known to officer. "Witness must prove, what, Handwriting may be pioved, when. Evidence must prove, what. Certificate of proof. Officers authorized to do certain things. When instrument is improperly cer- tified, party may have action to correct error. In certain cases, parties interested may obtain judgment of proof of an instrument. Effect of judgment in such action. Conveyances heretofore made to be governed by then existing laws. Recording, and as evidence, to be governed by then existing laws. 2976. Records, what notice deemed from. 5965. 3966. 2967. 2968. 2969. 2970. 2971. 2972. 2973. 2974. 2975. Section 2950. The proof or acknowledgment of an in- strument may be made at any place within this Territory, before a Justice or Clerk of the Supreme Court. Sec. 2951. The proof or acknowledgment of an instru- ment may be made in this Territory within the city, county or district for which the officer was elected or appointed, before either: o^-^ 1. A Judge or Clerk of a Court ^record; or, 2. A County Recorder; or, 3. A Notary Public; or, 4. A Justice of the Peace. Sec. 2952. The proof or acknowledgment of an instru- ment may be made without this Territory, but within the United States, and within the jurisdiction of the officer, be- fore either: 1. A Justice, Judge or Clerk of any Court of Record of the United States; or, 2. A Justice, Judge or Clerk of any Court of Record of any State or Territory; or, 3. A Commissioner appointed by the Governor of this Territory for that purpose; or, 4. A Notary Public; or, 5. Any other officer of the State or Territory where the acknowledgment is made authorized by its laws to take such proof or acknowledgment. Sec. 2953. The proof or acknowledgment of an instru- ment may be made without the United States, before either: 1. A Minister, Commissioner or Charge d' Affairs of the United States, resident and accredited in the country where the proof or acknowledgment is made; or, 2. A Consul or Vice-Consul of the United States resident in the country where the proof or acknowledgment is made; <»r. 5. A Judge of a Court of Record of the county where the proof <>r acknowledgment is made; or 4. Commissioners appointed for such purposes by the Governor of the Territory pursuant to statute; or 5. A Notary Public. 356 §§ 2954-2960 ACKNOWLEDGMENTS. Tit. VI. Ch. Ill Sec. 2954. When any of the officers mentioned in the four preceding sections are authorized by law to appoint a deputy, the acknowledgment or proof may be taken by such deputy, in the name of his principal. Sec. 2955. The acknowledgment of an instrument must not be taken, unless the officer taking it knows, or has satis- factory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in, and who executed the in- strument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation. Sec. 2956. 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, and that she does not wish to retract such execution. Sec. 2957. An officer taking the acknowledgment of an instrument must endorse thereon a certificate substantially in the forms hereinafter prescribed. Sec. 2958. The certificate of acknowledgment, unless it is otherwise in this chapter provided, must be substantial- ly in the following form: Territory of Idaho, ) County of f ss* On this day of , in the year of ,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 person whose name is subscribed to the within instrument, and acknowledged to me that he (or they) executed the same. Sec. 2959. The certificate of acknowledgment of an in- strument executed by a corporation, must be substantially in the following form: Territory of Idaho, ) County of f &s' On this day of , in the year , before me (here insert the name and quality of the officer,) personally appeared , known to me (or proved tome on the oath of ) to be the president (or the secretary) of the corporation that executed the instrument and acknowl- edged to me that such corporation executed the same. Sec. 2960. The certificate of acknowledgment by a married woman must be substantially in the following form: Territory of Idaho, / County of f 8S' On this day of , in the year of , before me (here insert the name and quality of the officer), person- ally appeared , known to me (or proved to me on thf oath of ) to be the person whose name is sub- scribed to the within instrument, described as a married wo- man; and upon an examination without the hearing of her husband, I made her acquainted with the contents of the in- strument, and thereupon she acknowledged to me that she 357 Deputy can take acknowl- edgment. Kequisites for acknowl- edgments. Comp. laws, 597. Acknowledg- ment by married women . Comp. laws, GOO. Officer must indorse certificate. General form of certificate. Comp. laws, 598. Form of acknowledg- ment by corporation. Form of certificate of acknowledg- ment by married women. Comp. laws, 600. Tit. VI. Lit. III. ACKNOWLEDGMENTS. §§ 2961-2967 Form of certit'icn: Acknowledg- ment by attorney in fact. Coinp. laws, 601. executed the same and that she does not wish to retract such execution. Sec. 2961. The certificate of acknowledgment by an attorney in fact, must be substantially in the following form: Territory of Idaho, ) na Officers must affix signatures. Comp. laws, 597. Certificate of authority of justices in certain cases. Proof of execution, how made. Comp. laws. 598. Witness must be personally known to officer. Comp. laws, 598. Witness must prove, what. Comp. laws, 598. When hand- writing may be proved . Comp luws. 598-599. County of- clay of in the year before On this me, (here insert the name and quality of the officer) person- ally appeared , known to me (or proved to me on the oath of ) to be the person whose name is subscribed to the within instrument as the and acknowledged there- attorney in fact of to me that he subscribed the name of - to as principal, and his own name as attorney in fact. Sec. 2962. Officers taking and certifying acknowledg- ments or proof of instruments for record, must authenticate their certificates by affixing thereto their signatures, fol- lowed by the names of their offices; also their seals of office, if by the laws of the territory, state, or country where the ac- knowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals. Sec. 2963. The certificate of proof or acknowledgment, if made before a Justice of the Peace, when used in any county other than that in which he resides, must be accom- panied by a certificate under the hand and seal of the Recorder of the county in which the Justice resides, setting forth that such Justice, at the time of taking such proof or acknowl- ment, was authorized to take the same, and that the Recor- der is acquainted with his handwriting, and believes that the signature to the original certificate is genuine. Sec. 2964. 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 the cases hereinafter mentioned. Sec. 2965. If by a subscribing witness, such witness must be personally known to the officer taking the proof, to be the person whose name is subscribed to the instrument, as a witness, or must be proved to be such, by the oath of a cred- itable witness. Sec. 2966. 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 ex- ecuted it, and that the witness subscribed his name thereto as a witness. Sec. 2967. The execution of an instrument may be estab- lished by proof of the handwriting of the party and of a subscribing witness, if there is one, in the following cases: 1 . When the parties and all the subscribing witnesses are dead: or, 2. When the parties and all the subscribing witnesses are non-residents or 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 can- 358 S§ 2968-2974 ACKNOWLEDGMENTS. Tit. VI Ch. III. Evidence must prove, -what. Comp. laws, 599. Certificate of proof . Comp. laws, 598. not 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 wit- ness to testify for the space of one hour, after his appear- ance. Sec. 2968. 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 men- tioned 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 gen- uine; and, 3. That the witness testifying personally knew the per- son who subscribed 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. Sec. 2969. An officer taking proof of the execution of any 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 before him on the pro- ceeding, together with the names of all the witnesses ex- amined before him, their places of residence respectively, and the substance of their testimony. Sec. 2970. Officers authorized to take the proof of in- struments, are authorized in such proceedings : 1. To administer oaths or affirmation, as prescribed in the Code of Civil Procedure; 2. To employ and swear interpreters; 3. To issue subpoena, as prescribed in the Code of Civil Procedure; 4. To punish for contempt as prescribed in the Code of Civil Procedure. The civil damages and forfeiture to the party aggrieved are prescribed in the Code of Civil Procedure for a witness disobeying a subpoena. Sec. 2971. When the acknowledgment or proof of the execution of an instrument is properly made, but defective- ly certified, any party interested may have an action in the District Court to obtain a judgment correcting the cer- tificate. Sec. 2972. Any person interested under an instrument 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. Sec. 2973. A certified copy of the judgment in a pro- ceeding instituted under either of the two preceding sections, showing the proof of the instrument, and attached thereto, entitles such instrument to record, with like effect as if acknowledged. Sec. 2974. The legality of the execution, acknowledg- ment, proof, form, or record of any conveyance or other in- strument made before this Code goes into effect, executed, acknowledged, proved, or recorded is not affected by any- thing contained in this chapter, but depends for its validity and legality upon the laws in force when the act was per- formed. Officers authorized to do certain things. Comp. laws, 599. Instrument improperly certified, party may have. -what. Parties may obtain judg- ment, etc. Effect of judg- ment. Conveyances governed by existing lawH 359 Til. VI. Ch. IV. RECORDING TRANSFERS. §§ 2975-2995 Recordiu^', etc. Comp. Laws, 605. Records, what notice deemed from. Certified copies as evidence. Sec. 2975. All conveyances of real property made be- fore this Code goes into effect, and acknowledged or proved, according to the laws in force at the time of such 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. Sec. 2976. Any instrument affecting real property, which previous to the time this Code takes effect, is copied into the proper book of record, kept in the office of any County Recorder; imparts notice of its contents to subse- quent purchasers and incumbrancers, notwithstanding any defect, omission, or informality in the execution of the in- strument, or in the certificate of acknowledgment thereof, or the absence of any such certificate; but nothing herein affects the rights of previous purchasers or incumbrancers. Duly certified copies of the record of any such instrument may be read in evidence, with like effect as copies of an in- strument duly acknowledged and recorded, provided it be first shown that the original instrument was genuine. CHAPTER IV. Recording Transfers. What may be recorded. Judgments may be recorded without ac- knowledgment. Letters patent. Notice of location may be recorded without ac- knowledgment. Instruments must be ac- knowledged, except, etc. Whoa instru ineut not recorded. Section 2900. What may be recorded. Judgments may be recorded with- out acknowledgment. Letters patent may be recorded without acknowledgment. Notices of location. Instruments must be acknowledged, except, etc. Instruments executed under power of attorney . Fees of recorder to be endorsed. 2991. 2992. 2993. 2994. 2995. 2990. Section 2997. In what office. 2998. Instrument, when deemed re- corded. 2999. Books of record. 3000. Record, where and to whom notice. 3001. Conveyances to be recorded, or are void, etc. 3002. Conveyance defined. 3003. Powers of attorney, how revoked. 3001. Unrecorded instrument valid. Section 2990. Any instrument or judgment affecting the title to or possession of real property may be recorded under this chapter. Sec. 2991. Judgments affecting the title to or posses- sion of real property, authenticated by the certificate of the Clerk of the Court in which such judgments were rendered, may be recorded without acknowledgment or further proof. Sec. 2992. Letters patent from the United States exe- cuted and authenticated pursuant to existing law, may be recorded without further proof. Sec. 2993. Certificates and notices of location author- ized by law with the affidavits attached may be recorded without acknowledgment or further proof. Sec. 2994. Before an instrument may be recorded, un- less it is otherwise expressly provided, its execution must be acknowledged by the person executing it, or if executed by a corporation, by its president or secretary, or proved, and the acknowledgment or proof certified in the manner prescribed by chapter III of this Title. Sec. 2995. An instrument executed by an attorney in fact must not be recorded until the power of attorney au- thorizing the execution of the instrument is filed for record in the same office. 360 §§ 2996-3015 UNLAWFUL TRANSFERS. Tit VI. Ch. V. Sec. 2996. The Recorder must in all cases endorse the amount of his fee on the instrument recorded, and on the record thereof. Sec. 2997. Instruments entitled to be recorded must be recorded by the County Recorder of the county in which the real property affected thereby is situated. Sec. 2998. An instrument is deemed to be recorded when, being- duly acknowledged, or proved and certified, it is deposited in the Recorder's office with the proper officer for record. Sec. 2999. Grants and conveyances absolute in terms, are to be recorded in one set of books, and mortgages in an- other. Sec. 3000. Every conveyance of real property, acknowl- edged or proved, and certified, and recorded as prescribed by law, from the time it is filed with the Recorder for record, is constructive notice of the contents thereof to subsequent purchaser and mortgagees. Sec. 3001. Every conveyance of real property other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a val- uable consideration, whose conveyance is first duly record- ed. Sec. 3002. The term "conveyance" as used in this chapter, embraces every instrument in writing by which any estate or interest in real property is created, alienated, mortgaged or incumbered, or by which the title to any real property may be affected, except wills. Sec. 3003. No instrument containing a power to convey or execute instruments affecting real property, which has been recorded, is revoked by any act of the party by whom it was executed, unless the instrument containing such re- vocation is also acknowledged or proved, certified and re- corded in the same office in which the instrument contain- ing the power was recorded. Sec. 3004. An unrecorded instrument is valid as be- tween the parties thereto and those who have notice •there- of. Fees of recorder to indorsed. In what office. Instrument when deemed recorded. Books of record. Record, when and to whom notice. Comp. Laws, 601. Conveyances to be recorded. Comp. laws, 601: Conveyance defined. Comp. laws, 602. Powers of attorney, how revoked. Comp. laws, 601. Unrecorded instrument valid. N. S. CHAPTER V. Unlawful Transfers. Section 3015. Certain instruments void against purchasers, etc. 3016. Not void against purchaser having notice, unless fraud is mutual. 3017. Power to revoke when deemed exe- cuted. 3018. Same. Section 3019. Personal property, certain trans- fers of, void. Transfer, etc . , with intent to defraud creditors . Certain transfers presumed fraudu- lent. Question of fraud, how determined. As to purchasers. 3020. 3021. 3022. 3023. Section 3015. Every instrument, other than a will, af- fecting 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. 361 Certain instru- ments void against purchasers. Act Jan 6, 1875. Tit. VI. Ch. V. UNLAWFUL TRANSFERS. ££ 301G-3023 d against purchaser, Act Jtiil. 6| Power to revoke. Act Jan. 6, 1875. Same. Act Jau. (> 1875. Personal property, certain trans- fers of void. Cotnp. laws, COS. Transfer, etc., with intent to defraud creditors. Certain trans- fers presumed fraudulent. Fraud, how determined. As to purchas- ers. Comp. laws, GO!*. Sec. 3016. No instrument is to be avoided under the last section, in favor of a subsequent purchaser or incum- brancer having notice thereof at the time his purchase was made, or his lien acquired, unless the person in whose favor the instrument was made was privy to the fraud intended. Sec. 3017. Where a power to revoke or modify an in- strument affecting the title to, or the enjoyment of, an es- tate in real property, is reserved to the grantor, or given to any other person, a subsequent grant of, or charge upon, the estates, by the person having the power of revocation, in favor of a purchaser or incumbrancer for value, operates as a revocation of the original instrument, to the extent of the power, in favor of such purchaser or incumbrancer. Sec. 3018. Whore a person having a power of revoca- tion within the provisions of the last section, is not entitled tc 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 exe- cute it. Sec. 3019. All deeds of gift, all conveyances and all transfers or assignments verbal or written, of goods, chattels or things in action, made in trust, for the use of the person making the same, are void as against the creditors existing or subsequent of such person. Sec. 3020. Every transfer of property, or charge there- on made, every obligation incurred, and every judicial pro- ceeding 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 person upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor. Sec. 3021. Every transfer of personal property other than a thing in action, and every lien thereon, other than a mortgage, when* allowed by law, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an imme- diate delivery and followed by an actual and continued change of possession of the things transferred, to be fraud- ulent, and therefore void, against those who are his cred- itors while he remains in possession, and the successors in interest of such creditors, and against any persons 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. Sec. 3022. In all cases arising under the provisions of this Title, except as otherwise provided in the last section, 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 valuable consideration. Sec. 3023. The provisions of this chapter do not in any manner affect or impair the title of a purchaser for a valuable consideration, unless it appears that such purchas- er had previous notice of the fraudulent intent of his imme- diate grantor, or of the fraud rendering void the title of such grantor. 362 }§ 3035-3041 GENERAL PROVISIONS. Tit VII. Ch.l. TITLE VII, HOMESTEADS. CHAPTER I. General Provisions. Section 3035. Homestead, of what consists. 3036. From what it may be carved. 3037. From what not. 3038. Exempt from forced sale. 3039. Subject to, when . 3040. How conveyed or incumbered 3041. Hbw abandoned. 3042. Same. 3043. Proceedings on execution against homestead. 3044. Same . 3045. Same. 3046. Same. 3047. Same. Section 3048. Same. 3049. Same. 3050. Same. 3051. Same. 3052. Same. 3053. Same. 3054. Same. 3055. After sale, money equal to home- stead exemption protected, 3056. Compensation of appraisers. 3057. Costs. 3058. Who may select homestead, value of. 3059. Head of a family defined. Section 3035. The homestead consists of the dwelling house in which the claimant resides, and the land on which the same is situated, selected as in this Title provided. Sec. 3036. If the claimant be married, the homestead may be selected from the community property, or the separate property of the husband, or with the consent of the wife from her separate property. When the claimant is not married, but is the head of a family, the homestead may be selected from any of his or her property. Sec. 3037. The homestead cannot be selected from the separate property of the wife without her consent, shown by her making the declaration of homestead. Sec. 3038. The homestead is exempt from execution or forced sale, except as in this Title provided. Sec. 3039. The homestead is subject to execution or forced sale in satisfaction of judgments obtained: 1. Before the declaration of homestead was filed for re- cord, and which constitute liens upon the premises; or in an action in which an attachment was levied upon the prem- ises before the filing of such declaration ; 2. On debts secured by mechanic's, laborer's or vendor's liens upon the premises; 3. On debts secured by mortgages upon the premises, ex- ecuted and acknowledged by the husband and wife or by an unmarried claimant; 4. On debts secured by mortgages upon the premises, executed and recorded ' before the declaration of homestead was filed for record. Sec. 3040. The homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife. Sec. 3041. A homestead can be abandoned only by a declaration of abandonment, or a grant or conveyance thereof, executed and acknowledged: 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried. 363 Homestead, of what consists. Comp. laws, 0 27. From what may be selected. When selected from wife's separate estate. Exempt from forced sale. Comp. laws, (527. Subject to execution, when. Comp. laws, 628. How conveyed or incumbered. Comp. laws, 628. How abandoned. Comp. laws, 628. Tit. VII. Ch. I GENERAL PROVISIONS. |§ 3042-3055 Sauio. Execution against home stead, pro- ceedings cm. Comp. laws. 648. Same. N. S. Same. N. S. Same. Comp. laws, 048. Same. Comp. laws, C48. Same. Same. Comp. laws, G28. Same. Same. Coinp. laws, 628. Same. Comp. laws, 028. Same. Comp. laws, 02!). Same. Comp. luws, 620. Money from execution Bale protection . Comp. laws, 629. Sec. 3042. A declaration of abandonment is effectual only from the time-it is filed in the office in which the home- stead was recorded. Sec. 3043. When an execution for the enforcement of a judgment, obtained in a case not within the classes before enumerated, is levied upon the homestead, the judgment creditor may apply to the Probate Judge of the county in which the homestead is situated for the appointment of per- sons to appraise the value thereof. Sec. 3044. The application must be made upon a veri- fied petition, showing: 1. The fact that an execution has been levied upon the homestead ; 2. The name of the claimant; 3. That the value of the homestead exceeds the amount of the homestead exemption. Sec. 3045. The petition must be filed with the Clerk of the Probate Court. Sec. 3046. A copy of the petition, with a notice of the time and place of hearing, must be served upon the claim- ant, at least two days before the hearing. Sec. 3047. At the hearing the Judge may, upon proof of the service of a copy of the petition and notice, and of the facts stated in the petition, appoint three disinterested residents of the county to appraise the value of the home- stead. Sec. 3048. The persons appointed, before entering upon the performance of their duties, must take an oath to faithfully perform the same. Sec. 3049. They must view the premises and appraise the value thereof, and if the appraised value exceeds the homestead exemption, they must determine whether the land claimed can be divided without material injury. Sec. 3050. Within ten days after their appointment they must make to the Judge a report in writing, which re- port must show the appraised value and their determination upon the matter of a division of the land claimed. Sec. 3051. If, from the report, it appears to the Judge that the land claimed can be divided without material in- jury, he must, by an order, direct the appraisers to set off to the claimant so much of the land, including the residence, as will amount in value to the homestead exemption, and the execution may be enforced against the remainder of the land. Sec. 3052. If, from the report it appear to the Judge that the land claimed exceeds in value the amount of the homestead exemption, and that it cannot be divided, he must make an order directing its sale under the execution. Sec. 3053. At such sale no bid must be received, un- less it exceeds the amount of the homestead exemption. Sec. 3054. If the sale is made, the proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution. Sec. 3055. The money paid to the claimant is entitled, for the period of six months thereafter, to the same protec- tion against legal process and the voluntary disposition of the husband, which the law gives to the homestead. 364 3056-3072 HOMESTEAD OF THE HEAD OF A FAMILY. Tit. VII Gh.IL Sec. 3056. The Court must fix the compensation of the appraisers, not to exceed five dollars per day each for the time actually engaged. Sec. 3057. The execution creditor must pay the costs of these proceedings in the first instance; but if the ap- praised value exceeds the homestead exemption the amount so paid must be added as costs on execution, and collected accordingly. Sec. 3058. Homesteads may be selected and claimed : 1. Of not exceeding five thousand dollars in value by any head of a family; 2. Of not exceeding one thousand dollars in value by any other person. Sec. 3059. The phrase "head of a family," as used in this Title, includes within its meaning: First. The husband or wife when the claimant is a mar- ried person; Second. Every person who has residing on the premises with him or her and under his or her care and maintenance either: (1.) His or her minor child, or the minor child of his or her deceased wife or husband; (2.) A minor brother or sister, or the minor child of a deceased brother or sister; (3.) A father, mother, grandfather or grandmother; (4.) The father, mother, grandfather or grandmother of a deceased husband or wife; (5.) An unmarried sister, or any other of the relatives mentioned in this section who have attained the age of ma- jority, and are unable to take care of or support themselves. Compensation of appraisers. N. S. Costs. Who may select home- stead, value of. Comp. laws, 627. Head of family denned. Comp. laws, 629. CHAPTER II. Homestead of the Head of a Family. Section 3070. Mode of selection. 3071. Declaration, what to contain. 3072. Declaration must be recorded . Section 3073. Homestead right, when it attaches ; survivorship and succession. Section 3070. In order to select a homestead, the hus- band or other head of a family, or in case the husband has not made such selection, the wife must execute and ac- knowledge in the same manner as a conveyance of real property is acknowledged, a declaration of homestead, and file the same for record. Sec. 3071. The declaration of homestead must contain: 1. A statement showing that the person making it is the head of a family; or, when the declaration is made by the wife, showing that her husband has not made such declara- tion, and that she therefore makes the declaration for their joint benefit; 2. A statement that the person making it is residing on the premises, and claims them as a homestead; 3. A description of the premises; 4. An estimate of their actual cash value. Sec. 3072. The declaration must be recorded in the office of* the Recorder of the county in which the land is sit- uated. . 365 Mode of selection. Comp. laws, 627. Declaration, what to contain. Comp. laws, 027. Declaration must be recorded. Comp. lawr, 027. Tit. VII. Ch. III. HOMESTEAD OF OTHER PERSONS. §§ 3073-3088 Homestead ritfht, when it attaches. Cotup. laws, 629. Survivorship and succession. Mode of selection. N. S. Declaration of homestead. N. S. Declaration recorded. N. S. Effect of filing for record. N. S. Sec. 3073. From and after the time the- declaration is tiled for record, the premises therein described, constitute a homestead. If the selection was made by a married per- son from the community property; the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this Title; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the Probate Court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner, except as provided in this Title. CHAPTER HL# Homestead of Other Persons. Section 3085 . Mode of selection. 3086. Declaration of homestead. 3087. Declaration must be recorded. Section 3088. Effect of filing for record the declar- ation of homestead. Section 3085. Any person other than the head of a family, in the selection of a homestead, must execute and acknowledge, in the same manner as a conveyance of real property is acknowledged, a "declaration of homestead." Sec. 3086. The declaration must contain everything required by the second, third and fourth subdivisions of the section prescribing the declaration of a head of a family. Sec. 3087. The declaration must be recorded in the office of the County Recorder of the county in which the land is situated. Sec. 3088. From and after the time the declaration is filed for record, the land described therein is a homestead. 366 §g 3100-3103 LOCATION OF LODE MINING CLAIMS. Tit. VIII. Ch. I. TITLE VIII. MINES AND MINING. CHAPTER I. Location of Lode Mining Claims. Sfction 3100. Width of claim. 3101. Location; notice, how placed. 3102. What to contain. 3103. When to be recorded ; Deputy Re- corders. Section 3104. Affidavit of locator. 3105. How recorded; fee. 3106. Deputy to transmit notices to Coun- ty Recorder. 3107. Duties of deputy ; seal. Section 3 1 00. Mining claims hereafter located upon veins or lodes of quartz, or other rock in place bearing any of the metals, or other valuable deposits mentioned in section 2320 of the Revised Statutes of the United States, may ex- tend to three hundred feet on each side of the middle of the vein or lode; Provided, That when the locators have set the stakes, posts or monuments described in the next section, to indicate the line of the vein, ledge or lode, such stakes, posts or monuments must be taken for the purposes of said location, to mark correctly the line thereof, and such line must not be afterwards changed so as to affect rights ac- quired or interfere with any locations made subsequent^r thereto. Sec. 3101. The locator of any lode mining claim must, at the time of making the location, place a substantial stake or post, not less than four inches square or in diameter, at each end of the ground claimed, and as near as practicable along the course or line of the vein or ledge, and also a similar stake or post at each corner of the location. Such stakes or posts must be at least four feet high above the suf- face, and must each be marked distinctly with the name of the claim. The notice of location hereinafter mentioned, must be conspicuously attached to one of said center end posts, so that the same may be easily read; or it must be con- spicuously posted in like manner at the point of discovery and prospecting work on the claim, where stakes or posts cannot be conveniently had, well built monuments of stone, of the like height above the surface answer the purpose of stakes or posts, but the notice must be so placed on the side of such monument as to be readily seen. Sec. 3102. The notice must contain the date of the location, the names of the locators, the name of the claim, ledge or lode, the quantity in feet claimed along the ledge or lode, the width claimed from the middle of the vein, and must also give such a description of the locality of the claim, by reference to natural land marks or fixed objects, and contiguous claims, if there be any, as to render the situation of the same reasonably certain from the letter of the notice itself. Sec. 3103. Every claim must be recorded within fifteen days from the time of the posting of the notice, in the dis- trict in which the same is situated, or at the nearest office to the claim. For the convenience of prospectors and locators, the County Recorders of the several counties must appoint 367 ' Width of claim. Act Feb. 10, 1881. Location. Act Feb. 10, 1881. Notice, how placed. What to con- tain. Act Feb. 10, 1881. Wben to be recorded. Act Feb. 10, 1881. Tit. VIH. Ch. I. LOCATION OF LODE MINING CLAIMS. §§ 3104-3106 Deputy : lire. Affidavit of locator. 13 ses., 138. a deputy at any place where he may deem it necessary, and at all pi aces more than ten miles distant from an existing office, whenever ten or more mining locators interested petition for the appointment of such deputy. Upon the failure of any Recorder to make the appointment of a deputy for ten days after a petition in writing has been x presented to him, the resident miners at such district may appoint temporarily one of their number to act as Recorder of the dis- trict whose records shall be as valid as if made by a deputy, and must be entered by the Recorder as hereinafter required; Provided, That whenever at any time afterwards the Re- corder appoints a deputy for such district or place, the au- thority of the person elected by the resident miners ceases. Sec. 3104. At the time of presenting a notice of loca- tion for record, or within five days thereafter, one of the lo- cators named in the same, must make and subscribe an affi- davit in writing, on or attached to the notice, substantially in the following form, to wit: Territory of Idaho, ) County of j ss* I, , do solemnly swear that I am acquaint- How recorded, 13 'ses., 138. Deputy to transmit notices to county recorder. Act Feb. 1<>, ed with the mining ground described in the notice of loca- tion herewith, called the ledge, lode, or claim, and that the ground and claim therein described, or any part thereof, has, not, to the best of my knowledge and be- lief been heretofore located according to the laws of the United States and of this Territory, or if so located, that the same has been abandoned or forfeited by reason of the fail- ure of such former locators to comply, in respect thereto, with the requirements of said laws. Subscribed and sworn to before me, this day of , A. D. 18 — . A. B. Sec. 3105. The notice herein required to be recorded, is a copy of the notice placed upon the claim, or substantially a copy of the same. It must be recorded by the deputy ap- pointed for the district, or the person elected for that pur- pose as above provided (when the legal fee therefor is ten- dered) in a book, to be kept for that purpose. Said book must be indexed, with the names of all locators arranged in alphabetical order, according to the first letter of the family or surname of each. The fee to be tendered for making such record, administering the oath to the locator and certifying the same for indexing the names appearing upon the notice, and to include the recording of the notice by the Recorder, as hereinafter required, and the indexing by said Recorder is two dollars, which fee must be equally divided between the Recorder and the deputy, or person acting under an election as hereinabove provided, and no other or additional sum of money must be demanded or received by either of them for any services connected with the recording of any notice of location made pursuant to the requirements of this chapter. Sec. 3106. The Deputy Recorder of mining claims of each district, or the person elected, as hereinabove pro- vided, to make the record in case of the failure of the Re- corder to appoint a deputy, must at least once in each month, transmit to the Recorder, at the county seat, all the notices of location filed with him for record and not previously 368 §§ 3107-3130 PLACER CLAIMS.— RIGHTS OF WAY. Tit VIII. Ch. II-1IL transmitted, which must at once be recorded by said Re- corder, in a book to be kept in his office, and be known as the "Book of Mining Claims/"' The names of all persons ap- pearing in every notice of location must be indexed by the Recorder, said names being arranged in said index in alpha- betical order, according to the first letter of the surname of said locators. Sec. 3107. The Deputy Recorders provided for in this chapter, are not, by virtue of the provisions hereof, au- thorized to perform any other than the special duties herein specified. They must keep an official seal, and the records in their custody are public records, but the seal of a Deputy Recorder must not be attached to any paper except for the purpose of authenticating certificates attached to transcripts of the records in his custody as Deputy Recorder. Duties of deputy, seal. Act Feb. 10, 1831, CHAPTER II. Placer Claims. Section 3122. Recording. Section 3120. Location. 3121. Marking on the ground and notice. Section 3120. Placer claims, as mentioned in section 2329 of the Revised Statutes of the United States, may be located under like circumstances and conditions, and upon similar proceedings, as far as applicable, to those provided by chapter I, of this Title in the case of lode claims. Sec. 3121. The locator of any placer mining claim must, at the time of making the location, place a substantial stake or monument, as required in the preceding chapter for lode claims, at each corner of the location and post on each a no- tice of location containing a description of the claim, the date of the locations and the name of the locator, as required in the case of a lode claim. Sec. 3122. The same affidavit must be attached to the notice of location of every placer claim hereafter located and the notice and affidavit must be filed for record within the time, at the place and in the manner required by chapter I of this Title in the case of lode claims; and for that purpose Deputy Recorders may be appointed as there provided. Location. N. S. Marking on the ground and notice. N. S. Recording. N. S. CHAPTER III. Rights of Way and Easements for the Development of Mines. Section 3130. Right of way. 3131. Rights of way and easements. 3132. Petition. 3133. Citation. 1134, Hearing; appointment of Commis- sioners. 3135. Oath, report. Skction 313(>. Report, when set aside. 3137. Rights upon payment or tender. 3138. Appeal. 3139. Trial on appeal. 3140. Rights pending appeal. 3141. Costs. 3142. Costs. Section 3130. The owner, locator, or occupant of a mining claim, whether patented under the laws of the United States or held by location or possession, may have and acquire a right of way for ingress and egress, when necessary in working such mining claim, over and across the lands or mining claims of others, whether patented or otherwise. 24 369 Right of way. Act Jan. 12, 1877. Tit VI II. Ch.IIf. RIGHTS OF WAY. §§ 3131-3134 Rii-btsof way nu'273. spring for the purpose of irrigation, or have, or claim a com- mon right to the waters of any ditch, stream, or spring for such purposes, constitute a water district, and a majority of such inhabitants having such common right may annu- ally, on the fourth Monday of March, at a meeting of such inhabitants, elect a water master for their district, whose duty it is to superintend the distribution of such waters among those having such common right, or accustomed to participate in such common use. The water master of the district, or if there be no water master, or upon his failure or neglect so to do, any six residents of the district entitled to such common right, must give three days' public notice of the time and place of such election, by posting written or printed notices thereof in three of the most public places in the water district. Said meeting must be opened at ten o'clock in the forenoon, and the majority of those present water master. who are entitled to such common right, may organize the same and determine the manner of such election, and whether the same be by ballot or otherwise. The water 377 Water master. Election of Tit. IX. Ch. Iff. DISTRIBUTION FOR IRRIGATION. 3201-3204 Bond of. Compensation of. Water master for private ditch. 11 ses., 274. Duties of water master. 11 ses., 274. Repair of ditches. 11 ses., 275. IIi'iulgatcH and dams. 1 1 ses , 275. master must execute to the county in which his district is situate, and file in the office of the County Recorder, for the benefit of any person who may be injured by his wanton or illegal act, or omission, as such, a bond in the sum of five hundred dollars, with two sufficient sureties, and conditional for the faithful and impartial discharge of his duties as wa- ter master of his district; and any person so injured may have an action on such bond in his own name for his actual damages. A water master may employ one or more depu- ties, as authorized by the inhabitants of his district claim- ing such common right, as aforesaid; and he is liable for their wanton and illegal acts upon his official bond; and, be- fore entering upon their duties, the water master and his deputies, must take and subscribe an oath, before any mag- istrate, faithfully and impartially to discharge the duties of their office; and they may receive such compensation, to be paid in such manner as may be agreed upon with such in- habitants. Sec. 3201. The owner or owners of any ditch for the distribution and sale of water, for the purposes of irrigation, must employ a water master for the distribution of the water of the ditch to the persons purchasing the same for such purposes; and no account or demand for the use of such wa- ter during any time such water master is not so employed, is valid or collectable. Sec. 3202. The water master and his deputies must reg- ulate the distribution of water among the several ditches of his district, and among the several inhabitants who are en- titled and accustomed to the use thereof, according to their respective rights and necessities; and when the quantity of water is not sufficient to afford a full supply to those entitled or accustomed to use the same, according to the usage of the district, the water master and his deputies must regu- late the quantity used by each person, and the time at and during which, each person may use the same; Provided, Nothing in this chapter must be so construed as to in- terfere with the vested rights of individual companies or corporations, or in any manner to interfere with the rights of individuals, companies, or corporations to the use and control of water, which is or may be their private property. Sec. 3203. Where a ditch is common property, or there is a common right to the use of the water of a ditch without payment therefor, and any labor or materials are neces- sary for the repair or cleaning of the ditch, or any gate or flume thereon or thereunto belonging, the water master of the district may make a fair pro rata assessment of labor or ma- terials against the inhabitants of the district claiming the use of such water, according to the benefits received by each ; and if any person so assessed neglects or refuses, for the period of three days after notice so to do from the water master or his deputy, to furnish his just proportion of the necessary labor or materials, according to such assessment, must pay his pro rata in cash to be recovered, with costs, in an action by the water master in his own name. Sec. 3204. The water master must see that there are provided the necessary and proper headgates and dams; and that the water is turned and runs into the ditches of his dis- 378 § 3205 DISTRIBUTION FOR IRRIGATION. Tit. IX. Ch.lII. trict at the proper season of the year; and he may require all persons receiving water to construct proper gates at the points at which they take water from any ditch, dam or reservoir; and he has such control of the location of ditches and gates as may be necessary to secure the most equitable distribution of the water among all entitled to its use. Sec. 3205. Any person who, without the consent of the water master of the district, diverts any water from the ditch or channel where it was placed, or caused, or left to run by the water master or his deputies, or who shuts or opens any ditch, gate or dam with intent so to divert any water, and thereby deprive any person of the use of the same during any part of the time he is entitled to such use, or who, without the consent of the water master, cuts any ditch or the banks thereof, or breaks or destroys any gate or flume, is guilty of a misdemeanor, and is liable in a civil action to any person injured thereby in three times the actual damage sustained in consequence of any such wrongful act or acts. Liability for opening gat© or cutting ditch. Uses., 275. 379 Tit. X Ch.1. GENERAL PROVISIONS. §§ 3220-3230 TITLE X. CONTRACTS AND OBLIGATIONS. CHAPTER I. General Provisions. Who may contract. When contract for benefit of third person may be enforced. Written instrument, evidence ci consideration. Burden of proof. What contracts may be oral. Contract through fraud may be enforced against fraudulent party. Corporate seal, how affixed. Seals abolished. Contract, partly written and partly printed. Restraints upon legal proceedings. Written roceiptH. 3221. 3222. 3223. 3224. 3225. Section 3226. Corporate seal, how affixed. Provisions abolishing seals. Contract partly written and partly printed. Restraints upon legal proceedings. Written receipts. Objections to mode of offer. 3227. 3228. 3229. 3230. 3231. Section 3220. Who may contract. When contract for benefit of third person may be enforced. Written instrument presumptive evidence of consideration. Burden of proof. What contracts may be oral. Contract not in writing through fraud, may be enforced against fraudulent party. Section 3220. All persons are capable of contracting, except minors, persons of unsound mind, and persons de- prived of civil rights. Sec. 3221. 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. Sec. 3222. A written instrument is presumptive evi- dence of a consideration. Sec. 3223. The burden of showing a want of considera- tion sufficient to support an instrument lies with the party seeking to invalidate or avoid it. Sec. 3224. All contracts may be oral, except such as are specially required by statute to be in writing. Sec. 3225. Where a contract, which is required by law to be in writing, is prevented from being put into writing by the fraud of a party thereto, 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 fraud-- ulent party. Sec. 3226. A corporate or official seal may be affixed to an instrument by a mere impression upon the paper or other material on which such instrument is written. Sec. 3227. All distinctions between sealed and un- sealed instruments are abolished. Sec. 3228. Where a contract is partly written and partly printed, or where part of it is written or printed un- der the special directions of the parties, 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 and the 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 repugnant, the latter must be so far disregarded! Sec. 3229. Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void. Sec. 3230. A debtor has a right to require from his creditor a written receipt for any property delivered in per- formance of his obligation. 380 §§ 3231-3252 SALES. Tit. X. Ch. II. Sec. 3231. 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 offer, and which could be then obviated by him, are waived by the creditor if not then stated. Objections to mode of offer. CHAPTER II. Sales. Section 3245. Warranty of title to personal prop- erty. 3246. Warranty on sale by sample. 3247. Marks of quality and quantity. 3248. Warranty of provisions for domes- tic use. Section 3249. Notice of election as to delivery. 3250. Delivery, where made. 3251. Expense of transportation. 3252. When seller must act as depositary. Section 3245. One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good and unincumbered title thereto. Sec. 3246. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sam- ple. Sec. 3247. One who sells any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, thereby warrants the truth thereof. Sec. 3248. One who makes a business of selling pro- visions for domestic use, warrants by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome. Sec. 3249. When either party to a contract 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. Sec. 3250. 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. Sec. 3251. One who sells personal property must bring it to his own door or other convenient place, for its accept- ance by the buyer, but further transportation is at the risk and expense of the buyer. Sec 3252. 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 rea- sonable opportunity to remove it. Warranty of title to personal property. Warranty on sale by sample. Marks of quality and quantity. Warranty of provisions for domestic use. Notice of election as to delivery. Delivery, where made . Comp. laws, 650. Expense of transportation. Comp. laws, 650. When seller must act as depository. 381 Tit XL Ch.L SPECIAL PARTNERSHIP. §§ 3270-3274 TITLE XI. PARTNERSHIP. CHAPTER I. Special Partnership. Formation of special partnership. 13 see., 148. Of whom to consist. 13 ses., 148 Certified statement. 13 ses., 148. Acknowledged and recorded. 13 ses., 148. Alfidavit as to sums contributed. . L48. Section 3270. Formation of special partnership. 3271 . Of whom to consist. 3272. Certified statement. 3273. Acknowledged and recorded. 3274. Affidavit as to sums contributed. 3275 . No partnership until compliance. 3276. Certificate to be published. 3277. Affidavit of publication filed. 3278. Renewal of special partnership. 3279. "Who to do business. 3280. Special partners may advise. 3281. May loan money. 3282. General partners may sue and be sued. 3283. Withdrawal of capital. Section 3284. Interest and profits. 3285. Result of withdrawing capital. 3286. Preferential transfer void. 3287. Liability of partners. 3288. Of special partners. 3289. Liability for unintentional act. 3290. Who may question existence of special partnership. 3291. When special partnership becomes general. 3292. How new special partners may be admitted. 3293. Dissolution of special partnership. 3294. The name of a special partner not used, unless. Section 3270. A special partnership may be formed by- two or more persons in the manner and with the effect pre- scribed in this chapter, for the transaction of any business except banking or insurance. Sec. 3271. A special partnership may consist of one or more persons called general partners, and one or more per- sons called special partners. Sec. 3272. Persons desirous of forming a special part- nership must severally sign a certificate stating: First. The name under which the partnership is to be conducted; Second. The general nature of the business intended to be transacted; Third. The names of all the partners, and their resi- dences, specifying which are general and which are special partners; Fourth. The amount of capital which each special partner has contributed to the common stock; Fifth. The periods at which such partnership will begin and end. Sec. 3273. Certificates under the last section must be acknowledged by all the partners, before some officer au-, thorized to take acknowledgments of deeds, and recorded in the office of the Recorder of the county, in which the prin- cipal place of business of the partnership is situated, in a book to be kept for that purpose, open to public inspection; and if the partnership has places of business situated in dif- ferent counties, a copy of the certificate, certified by the Re- corder in whose office it is recorded, must be recorded in like manner in the office of the Recorder in every such county. If any false statement is made in any such certificate, all the persons interested in the partnership are liable, as gen- eral partners, for all the engagements thereof. Sec. 3274. An affidavit 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 actually and in good faith paid, must be filed in the same office with the original certificate. SPECIAL PARTNERSHIP. Tit. XL Ch.L Sec. 3275. No special partnership is formed until the provisions of the last five sections are complied with. Sec. 3276. The certificate mentioned in this chapter 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 news- paper in this Territory published nearest thereto. Such publication must be made once a week, for four succes- sive weeks, beginning within one month from the time of filing the certificate. In case such publication is not so made, the partnership must be deemed general. Sec. 3277. An affidavit of the making of the publica- tion mentioned in the preceding section made by the print- er, publisher or chief clerk of the newspaper in which such publication is made, may be filed with the County Recorder with whom the original certificate was filed, and is presump- tive evidence of the facts therein stated. Sec. 3278. Every renewal or continuance of a special partnership must be certified, recorded, verified and pub- lished in the same manner as upon its original formation. Sec. 3279. The general partners only have authority to transact the business of a special partnership. Sec. 3280. A special partner may at all times investi- gate the partnership affairs, and advise his partners or their agents, as to their management. Sec. 3281. A special partner may lend money to the partnership, or advance money for it, and take from it secu- rity 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. Sec. 3282. In all matters relating to a special partner- ship, its general partners may sue and be sued alone, in the same manner as if there were no special partners. Sec. 3283. No special partner under any pretense, may withdraw any part of the capital invested by him in the partnership, during its continuance. Sec. 3284. 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. Sec. 3285. If a special partner withdraws capital from the firm contrary to the provisions of this chapter, he there- by becomes a general partner. Sec. 3286. Every transfer of the property of a special, partnership, or of any 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 part- nership or partner, over any other creditor of such partner- ship, is void against the creditors thereof; and every judg- ment confessed, lien created, or security given in like man- ner and with the like intent, is in like manner void. Sec. 3287. The general partners in a special partner- ship are liable to the same extent as partners in a general partnership. Sec. 3288. The contribution of a special partner to the capital of the firm, and the increase thereof, is liable for its 383 No partnership until com- pliance. 13 sea., 149. Certificate to be published. 13 ses., 140. Affidavit of publication filed. 13 ses., 149. Renewal of special partnership. 13 ses., 149. Who to do business. 13 ses., 149. Special partners may advise. 13 868., 149. May loan money. 13 ses., 149. General partners may sue, etc. 13 ses., 149. Withdrawal of capital . 13 ses., 149. Interest and profits. 13 868., 149. Result of withdrawing capital. 13 ses., 149. Preferential transfer void . 13 ses., 149. Liability ol partners. 13 ses., 150. Of special partners. 13 see., 150. Tit. XL Ch.L SPECIAL PARTNERSHIP. §§ 3289-3294 Liability for unintentional 13 ses., 150. Who may question existence of special partnership. 13 ses., 150. debts, but he is not otherwise liable therefor, except as fol- lows: First. If he has willfully made or permitted a false or materially defective statement in the certificate of the part- nership, the affidavit filed therewith, or the published an- nouncement thereof, he is liable as a general partner to all creditors of the firm; Second. If he has willfully interfered with the business of the firm, except as permitted in this chapter, he is liable in like manner; or Third. If he has willfully joined in or assented to an act contrary to any of the provisions of this chapter, he is liable in like manner. Sec. 3289. When a special partner has unintentionally done any of the acts mentioned in the last section, he is lia- ble as a general partner to any creditor of the firm who has been actually misled thereby to his prejudice. Sec. 3290. One who, upon making a contract with a partnership, accepts from or gives to it a written memoran- dum of the contract, stating that the partnership is special, and giving the names of the special partners, cannot after- wards 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 this chapter. Sec. 3291. 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 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 County Recorder with whom the orig- inal certificate of the partnership was filed, and notice thereof published as is provided in this chapter for the pub- lication of the certificate. Sec. 3292. New special partners may be admitted into a special partnership upon a certificate stating the names, residences and contributions to the common stock of each of such partners, signed by each of them, and by the gen- eral partners, verified, acknowledged, or proved, according to the provisions of this chapter, and filed with the County Recorder with whom the original certificate of partnership was filed. Sec. 3293. A special partnership is subject to dissolu- tion 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 filed and recorded in the of- fice of the County Recorder, with whom the original certifi- cate was recorded, and published once in each week for four successive weeks, in a newspaper printed in each coun- ty where the partnership has a place of business. Sec. 3294. The name of a special partner must not be used in the firm name of partnership, unless it be accom- panied with the word "limited." When special partnership becomes general. 13 ses., 150. How new special partners may be admitted. 13 ses., 150. Dissolution of special partnership. 13 ses., 150. Name of special partner not used, unless. 13 ses., 151. 384 §§ 3300-3309 MINING PARTNERSHIPS. Tit. XL Ch. II. CHAPTER II. Mining Partnerships. Section 3300. When ruining partnership exists. 3301. Express agreement not necessary to constitute. 3302. Profits and losses, how shared. 3303. Lien of partners . 3304. Mine— Partnership property. 3305. Partnership not dissolved by sale of interest. SECTION 3306. Purchaser takes, subject to liens, unless, etc. 3307. Takes with notice of lien, when. 3308. Contract in writing, when binding. 3309. Owners of majority of shares gov- ern. Section 3300. A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the mineral therefrom, actually engage in working. the same. Sec. 3301. An express agreement to become partners or to share the profits and losses of mining is not necessary to the formation or existence of a mining partnership. The relation arises from the ownership of shares or interests in the mine and working the same for the purpose of extract- ing the minerals therefrom. Sec. 3302. A member of a mining partnership shares in the profits and losses thereof in the proportion which the interest or share he owns in the mine, bears to the whole partnership capital or whole number of shares. Sec. 3303. Each member of a mining partnership has a lien on the partnership property for the debts due the cred- itors thereof, and for money advanced by him for its use. A lien exists in favor of the creditors notwithstanding there is an agreement among the partners that it must not. Sec. 3304. The mining ground owned and worked by partners in mining, whether purchased with partnership funds or not, is partnership property. Sec. 330<7. One of the partners in a mining partnership may convey his interest in the mine and business without dissolving the partnership. The purchaser, from the date of his purchase, becomes a member of the partnership. Sec. 3306. A purchaser of an interest in the mining ground of a mining partnership takes it subject to the liens existing in favor of the partners for debts due all creditors thereof, or advances made for the benefit of his partnership unless he purchased in good faith, for a valuable considera- tion, without notice of such lien. Sec. 3307. A purchaser of the interest of a partner in a mine when the partnership is engaged in working it, takes with notice of all liens resulting from the relation of the partners to each other and to the creditors of the partner- ship. Sec. 3308. No member of a mining partnership or other agent or manager thereof can, by a contract in writing, bind the partnership except by express authority derived from the members thereof. Sec. 3309. The decision of the members owning a ma- jority of the shares or interests in a mining partnership, binds it in the conduct of its business. When mining partnership exists. Express agreement not necesMiry to constitute. Profits and losses, how shared. Lien of partners. Mine partner- ship property. Partnership not dissolved by sale of interest. Purchaser takes, subject to liens, unless, etc. Takes with notice of lien, when. Contract, when binding. Owners of majority of shares govern. 25 385 Tit. XII. Ch. I. LIENS IN GENERAL. §§ 3325-3336 TITLE XII. LIENS. CHAPTER I. Liens in General. 'Lien, what. General or special. General lien, what. Special lien, what. Prior liens. Contracts subject to this chapter. Liens on future interest. Lien may be created by contract. Lien, etc., transfers no title. Certain con- tracts void. Creation of lien does not imply personal obligation. Prioiity of mortgage for .price. Section 3325. Lien what. 3326. Liens ; general or special. 3327. General lien, what. 3328. Special lien, what. 3329. Prior liens. 3330. Contracts subject to this chapter. 3331. Lien on future interest. 3332. Lien may be created by contract. 3333. Lien, or contract for, transfers no title. Sf.ction 3334. Certain contracts void. 3335. Creation of lien does not imply per- sonal obligation. 3336. Priority of mortgage for price. 3337 Right to redeem. 3333. Rights of inferior lienor. 3339. When restoration extinguishes lien. Section 3325. A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act. Sec. 3326. Liens are either general or special. Sec. 3327. A general lien is one which the holder there- of is entitled to enfore as a security for 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. Sec. 3328. A special lien is one which the holder thereof can enforce only as security for the performance of a par- ticular act or obligation, and of such obligations as may be incidental thereto. Sec. 3329. Where the holder of a special lien is com- pelled to satisfy a prior lien for his own protection, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists. Sec. 3330. Contracts of mortgage and pledge, are sub- ject to all the provisions of this chapter. Sec. 3331. An agreement may be made to create a lien upon property not yet acquired by the parfy 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 said interest. Sec. 3332. A lien may be created by contract, to take immediate effect, as security for the performance of obliga- tions not then in existence. Sec. 3333. Notwithstanding an agreement to. the con- trary, a lien, or a contract for a lien, transfers no title to the property subject to the lien. Sec. 3334. All contracts for the forfeiture of property subject to a lien, in satisfaction of the obligation secured thereby, and all contracts in restraint of the right of re- demption from a lien, are void. Sec. 3335. The creation of a lien does not of itself im- ply that any person is bound to perform the act for which the lien is a security. Sec. 3336. A mortgage given for the price of real prop- erty, at the time of its conveyance, has priority over all other liens created against the purchaser, subject to the operation of the recording laws. 386 §§ 3337-3356 MORTGAGES IN GENERAL. Tit. XII. Ch.II Sec. 3337. Every person, having an interest in property subject to a lien, lias a right to redeem it from the lien, at any time after the claim is clue, and before his right of re- demption is foreclosed. Sec. 3338. One who has a lien inferior to another, upon the same property, has a right : 1. To redeem the property in the same maimer as its owner might, from the superior lien; and, 2. To be subrogated to all the benefits of the superior lien, when necessary for the protection of his interests upon satisfying the claim secured thereby. Sec. 3339. The voluntary restoration of property to its owner by the holder of a lien thereon, dependent upon pos- session, extinguishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it, not- withstanding any such agreement, as to creditors of the owner and persons subsequently acquiring a title to the property, or a lien thereon, in good faith, and for a good consideration. CHAPTER II. Mortgages in General. Section 3359. Recording assignment of mortgage not notice to mortgagor. 3360. Mortgage passes by assignment of debt. 3361. Mortgage, how discharged. 3362. Same. 3363. Same. 3301. Duty of mortgagee on satisfaction of mortgage. 3305. Affidavit as to payment of taxes on mortgages . Section 3350. Mortgage, what. 33^ 1 . To be in writing. 3352. Lien of a mortgage, when special. 3353. Transfer of interest, when deemed a mortgage. 3354. Transfer made subject to defeas- ance may be proved. 3355. Mortgage, on wnat a lien. 335 . Subsequently acquired title inures to mortgagee. 3357. Po vver of attorney to execute. 3358 Recording assignment of mortgage. Section 3350. Mortgage is a contract by which specific property is hypothecated for the performance of an act without the necessity of a change of possession. Sec. 3351. A mortgage can be created, renewed or ex- tended only by writing, executed with the formalities re- quired in the case of a grant or conveyance of real property. Sec. 3352. The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of posses- sion. Sec. 3353. Every transfer of an interest in property other than in trust, made only as a security for the perform- ance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by an actual change of possession, in which case it is to be deemed a pledge. Sec. 3354. The fact that a transfer was made subject to defeasance on a condition, may, for the purpose of show- ing 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. Sec. 3355. A mortgage is a lien upon everything that would pass by a grant or convenance of the property. Sec. 3356. 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. 387 Right to redeem. Rights of inferior lienor. When restora- tion extinguishes. Mortgage, what. To be in writing. Lien of mort- gage when special. Transfer of interest when deemed a mortgage. Transfer made subject to defeasance may be proved. Mortgage, on what a lien. Subsequently acquired title inures to mortgagee. Tit XII. Ch.II. MORTGAGES IN GENERAL. £§ 3357-3365 Power of attorney to execute. Recording assignment of mortgage. Recording assignment of mortgage not notice to mortgagor . Mortgage passes by assignment of debt. Mortgage, how discharged. Comp. laws, 002. Same. Comp. laws, 003. Same. Comp. laws, 003. Satisfaction of mortgages. Comp. laws, 003. Affidavit as to payment of taxes on mortgages. Act Dec. 30, 1880. Sec. 3357. A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged, or proved, certified and recorded in like manner as powers of attorney for grants of real property. Sec. 3358. An assignment of a mortgage may be re- corded in like manner with a mortgage, and such record operates as notice to all persons subsequently deriving title to the mortgage from the assignor. Sec. 3359. The record of the assignment of a mortgage is not of itself notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee. Sec. 3360. The assignment of a debt secured by mort- gage carries with it the security. Sec. 3361. A recorded mortgage may be discharged by an entry in the margin of the record thereof, signed by the mortgagee, or his personal representative or assignee, ac- knowledging the satisfaction of the mortgage in the pres- ence of the Recorder, who must certify the acknowledg- ment in form substantially as follows: "Signed and acknowledged before me this day of , in the year of . A. B., Recorder." Sec. 3362. A recorded mortgage, if not discharged as provided in the preceding section, must be discharged upon the record by the officer having custody thereof, on the pre- sentation to him of a certificate signed by the mortgagee his personal representative or assigns, acknowledged or proved and certified as prescribed by the chapter on "Record- ing Transfers," stating that the mortgage has been paid, satisfied, or discharged. Sec. 3363. ■ A certificate of the discharge of a mortgage, and the 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. Sec. 3364. When any mortgage has been satisfied, the mortgagee or his assignee must immediately, on the demand of the mortgagor, execute, acknowledge, and deliver to him a certificate of the discharge thereof so as to entitle it to be recorded, or he must enter satisfaction or cause satisfaction of such mortgage to be entered of record; and any mortgagee, or assignee of such mortgagee, who refuses to execute, ac- knowledge, and deliver to the mortgagor the certificate of discharge, or to enter satisfaction, or cause satisfaction of the mortgage to be entered, as provided in this chapter, is liable to the mortgagor or his grantee or heirs, for all dam- ages which he or they may sustain by reason of such refusal, and shall also forfeit to him or them the sum of one hun- dred dollars. Sec. 3365. Before satisfaction or release of any mort- gage or lien, other than mortgages given to secure the purchaser money of the property mortgaged to be entered or filed for record, the Recorder must be satisfied by affi- davit reduced to writing, either taken before him, or any officer authorized to administer oaths, which affidavit may be made by the mortgagee or the person holding 388 ■§§ 3375-3386 MORTGAGES OF PROPERTY. Tit. XII. Ch.III-IV. such mortgage or lien, or his agent or attorney, and which must be filed in said Recorder's office, that all taxes assessed on the mortgage or lien or on the debt secured thereby have been paid. Said affidavit must be substantially in the fol- lowing form: I do solemnly swear, that all taxes assessed on this mort- gage, or debt secured by this mortgage or lien, had been paid. If any County Recorder enters or permits to be entered satisfaction without the filing of such affidavit, he is liable, on his official bond to pay the county the sum of five hundred dollars, which may be recovered by an action, which it is the duty of the District Attorney to prosecute, and he shall have for each prosecution twenty-five per cent- um of the amount recovered. CHAPTER III. Mortgage of Real Property. Section 3375. What real property may be mort- gaged. Section 3376. Defeasance, to affect grant absolute on its face, must be recorded. 3377. Maybe recorded. IS Section 3375. Any interest in real property which capable of being transferred may be mortgaged. Sec. 3376. When a grant of real property purports to be an absolute conveyance, but is intended to be defeasable 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 instrument of defeasance, duly executed and acknowledged, is recorded in the office of the County Recorder of the county where the property is situated. Sec. 3377. Mortgages of real property may be acknowl- edged, or proved, certified and recorded in like manner and with like effect as grants and conveyances thereof. What may be mortgaged. Defeasance to affect grant absolute on its face, must be recorded. May be recorded. CHAPTER IV. Mortgage of Personal Property. Section Section 3385. On what property. 3392. Service of affidavit. 3386. When void as to third person. 3393. Notice of sale. 3387. Mortgages to be recorded. 3394. Bill of sale. 3388. Removal from the county. 339 i. Return of sale. 3389. How attached. 3396. Action to contest foreclosure 3390. Foreclosure by action. 3397. Removal of property. 3391. Foreclosure by notice and sale. 3398. Time to record . When void as to third per son '. i *_ a-v- L «rn Section 3385. Chattel mortgages may be made upon onwnat all property, goods or chattels not defined by statute to be i^eeart,y47 real estate. Sec. 3386. A mortgage of personal property is void as against creditors of the mortgagor and subsequent pur- chasers and incumbrances of the property in good faith and for value, unless : l.j-It is accompanied by the affidavit of the mortgagor that/ is made in good faith and without any design to hinder, delay, or defraud creditors; 2. It is acknowledged or proved, certified, and recorded in like manner as grants of real property. 389 Ka id^^rViA Tit. XI f. Ch.IV. MORTGAGE OF PERSONAL PROPERTY. §§ 3387-3391 Mortgages to be recorded. 13 6es., 7 i . V OAuu^i^ Removal from the county. 13 ses., 74. How attached. 13 ses., 75. Foreclosure. 13seB.,75. Foreclosure by notice and sale. 13 see., 7~. Sec. 3387. Mortgages of personal property must be re- corded in the office of the County Recorder, of the county in which the mortgaged property be situated, in a book kept exclusively for that purpose; Provided, That property in transit from the possession of the mortgagee to the county in. which the mortgagor resides, or to a location for use, shall for a reasonable length of time for such transportation be considered as located in the county to which the same is being removed; Provided, further, That if the mortgagee receive and return actual possession of the property mort- gaged, he may omit the recording of his mortgage,^ during the continuance of such actual possession. Sec. 3388. When mortgaged personal property is there- after removed from the county wherein it was situated at the time of the execution of the mortgage by the written consent of the mortgagee, it is, except as between the parties to the mortgage, exempt from the operations thereof, un- less, either, first, the mortgagee within ten days after such removal cause the mortgage to be recorded in the county to which the property has been removed, or second, the mort- gagee within ten days after such removal take possession of the mortgaged property. Sec. 3389. All mortgaged personal property may be at- tached at the suit of any creditor of the mortgagor: such creditor, however, must pay or tender to the mortgagee, the amount due him on such mortgage before the officer mak- ing such attachment is entitled to the actual possession of such property. When the property thus attached and re- deemed by the creditor is sold by the officer under due legal proceedings, he must: Fivst. Pay to such creditor the amount advanced by him to pay the mortgage with lawful interest thereon: Second. Pay all costs appertaining to the judgment, execution and sale: Third. Pay the judgment creditor the amount of his judgment, and the surplus, if any, to the judgment debtor; if the creditor of the mortgagor prefer he may cause to be attached the equity of redemption of the mortgagor; such attachment is made by serving upon the mortgagor and the mortgagee a copy of the writ of attachment, together with a notice signed by the officer that the interest of the mort- gagor in such property is attached, when the sale of such equity is made on execution obtained by such attaching creditor, the proceeds must be applied to the payment of the costs and the satisfaction of the judgment, and the remainder, if any, paid to the judgment debtor. The purchaser at such sale is entitled to the possession of the property, subject, however, to the rights of the mortgagee. Sec. 3390. Any mortgage of personal property, when the debt to secure which the mortgage was given is due, may be foreclosed by notice and sale as hereinafter provided, or it may be foreclosed by action in the District Court having jurisdiction in the county in which the property is situated. Sec. 3391. In proceeding to foreclose by notice and sale, the mortgagee, his agent or attorney, must make an affidavit stating the date of the mortgage, the names of the parties thereto, a full description of the property mort- gaged, and the amount due thereon. Such affidavit must 390 §§ 3392-3398 MORTGAGE OF PERSONAL PROPERTY. Tit. XII. Ch.IV.. Service of affidavit. 13 sea., 75. Notice of sale. 13 ses., 76. Bill of sale. 13 ses., 70. be placed in the hands of the Sheriff, together with a no- tice signed by the mortgagee, his agent or attorney, requir- ing such officer to make the mortgaged property into his possession and sell the same. Sec. 3392. The affidavit must be personally served upon the mortgagor, or other person having possession of the mortgaged property, in the same manner as is provided by law for the service of a summons. At the time of such ser- vice of the affidavit, the officer must also serve a notice signed by himself, setting forth a full description of the property, the amount claimed to be due by the mortgagee, and the time and place of sale; Provided, however, That if the mortgagor or other person interested, caimot be found within the county wherein the mortgage is being foreclosed, and has no agent therein known to the officer, the general notice of sale directed in the next section is sufficient ser- vice upon all parties interested. Sec. 3393. The officer must take the property into his possession and give notice of sale in the s'ame manner and for the same length of time as is required in cases of the sale of like property on execution, and the sale must be conduct- ed in the same manner. Sec. 3394. The purchaser at such sale takes all the in- terest which the mortgagor had in the mortgaged property at the time of the execution of the mortgage, and the officer selling must execute to him a bill of sale of the property, which must set forth the date of the mortgage, the names of the parties thereto, the date of sale, a description of the property, and the amount paid therefor. Sec. 3395. The officer must make return upon the affi- davit hereinbefore mentioned of all his proceedings, and must transmit the same by mail or otherwise, to the Clerk of the District Court having jurisdiction in the county in which the sale was made, and the clerk must file such re- turn in his office. Sec. 3396. The right of the mortgagee to foreclose, as well as the amount claimed to be due, may be contested in the District Court by any person interested in so doing, for which purpose an injunction may issue if necessary. Sec. 3397. If the mortgagor of any property mort- gaged in pursuance of the provisions of this chapter, while such mortgage remains unsatisfied, in whole or in part, will- fully removes from the county or counties where the mort- gage is recorded, destroys, conceals, sells; or in any manner disposes of the property mortgaged, or any part thereof, without consent of the holder of said mortgage, is guilty of larceny, and such sale or transfer is void. Sec. 3398. The mortgagee is allowed one day for every twenty miles or fraction thereof of the distance between his residence and the County Recorder's office where such mort- gage is to be recorded, to conform to the provisions of this chapter, before any subsequent incumbrance, sale or seiz- ure, under any process, is effected to hold or bind the mort- gaged property. Return of sale. 13 ses., 7G. Action to con- test foreclosure. 13 ses., 7(>. Removal of property. 13 ses., 7G. Time to record. 13 ses., 77. 391 TU. XII. Ch. V. PLEDGE. §§ 3410-3421 CHAPTER V. Pledge. When contract deemed pledge. Delivery essential to validity of pledge. Increase of thing. Lienor may pledge property. Real owner cannot defeat pledge. Pledge holder, what. Pledge holder must enforce rights. Debtor's Misrepresenta- tion of value of pledge. When pledgee may sell. When pledgee must demand performance Notice of sale to pledgor. Waiver of notice of Bale. Section 3410. When contract is to be deemed a pledge. Delivery essential to validity of pledge. Increase of thing. Lienor may pledge property to ex- tent of his lien. Real owner cannot defeat pledge of property transferred to apparent owner for purpose of pledge. Pledgeholder, what. Pledge holder must enforce rights of pledges. Debtor's misrepresentation of value of pledge. 3411. 3412. 3-113. 3414. 3415 341 G 3417 Section 3418. When pledgee may sell. 3419. When pledgee must demand per- formance. 3420. Notice of sale to pledgor. 342 1 . Waiver of notice of sale .' 3422. Waiver of oemand. 3423. Sale must be by auction . 3424. Pledgee's sale of securities. 3425. Sale on the demand of the pledgor. 3426. Surplus to be paid to pledgor. 3427. Same. 3428. Pledgee's purchase of property pledged. 3429. Pledgee may foreclose right of re- demption. Section 3410. Every contract by which the possession of personal property is transferred, as security only, is to be deemed a pledge. Sec. 341 1. The lien of a pledge is dependent on posses- sion, and no pledge is valid until the property pledged is de- livered to the pledgee, or to a pledge holder, as hereafter prescribed. Sec. 3412. The increase of property pledged is pledged with the property. Sec. 3413. One who has a lien upon property may pledge it to the extent of his lien. Sec. 3414. 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 of business and for value. Sec. 3415. A pledgor and pledgee may agree on a third person with whom to deposit the property pledged, who, if he accepts the deposit, is called a pledge holder. Sec. 3416. A pledge holder must enforce all the rights of the pledgee, unless authorized by him to waive them. Sec. 3417. Where a debtor has obtained credit or an extension of time by a fraudulent misrepresentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value rep- resented; and in default thereof may recover his debt imme- diately, though it be not actually due. Sec. 3418. 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. Sec. 3419. Before property pledged may be sold, and after performance of the act for which it is security is due, the pledgee must demand performance thereof from the debtor, if the debtor can be found. Sec. 3420. 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 • 'liable the pledgor to attend. Sec. 3421. Notice of sale may be waived by a pledg- or at any time; but is not waived by a mere waiver of de- mand of performance. 392 §§ 3422-3442 OTHER LIENS. Tit. XI I. Ch. VI. Sec. 3422. A debtor or pledgor waives a demand of performance as a condition precedent to a sale of the prop- erty pledged, by a positive refusal to perform after perform- ance is due; but cannot waive it in any other manner ex- cept by contract. Sec/ 3423. The sale by a pledgee of property pledged, must be made by public auction in the manner and upon the notice required upon sale of personal property under execu- tion; and must be for the highest obtainable price. Sec. 3424. A pledgee cannot sell any evidence of debt pledged to him except the obligations of governments, states, territories, counties or corporations; but he may col- lect the same when due. Sec. 3425. 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 ap- plied to such satisfaction when due. Sec. 3426. 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. Sec. 3427. When property pledged is sold before the claim of the pledgee is due, he may retain out of the pro- ceeds all that can possible become due under his claim, until it becomes due. Sec. 3428. A pledgee, or pledge holder, cannot purchase the property pledged, except by direct dealing with the pledgor. Sec. 3429. Instead of selling property pledged, as here- inbefore provided, a pledgee may foreclose the right of re- demption by a judicial sale, under the direction of a com- petent court; and in that case may be authorized by the court to purchase at the sale. Waiver of demand. Sale must be by auction. Pledgee's sale of securities. Sale on the demand of pledgor. Surplus to be paid to pledgor. Same. Pledgee's purchase of property pledged. Pledgee may foreclose right of redemption. CHAPTER VI. Other Liens. Bection 3440. Lien of seller of real property. 3441. When transfer of contract waives lien. 3442 Extent of seller's lien 3443. Lien of seller of personal property . 3444. Purchaser's lien on real property. Section 3445. Lien of services. 3446. Liens on personal property. 3447. Lien of factor. 3448. Banker's lien. 3449. Mechanic's lien. Section 3440. One who sells real property has a ven- dor's lien thereon, independent of possession, for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer. Sec. 3441. Where a buyer of real 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 lien 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. Sec. 3442. The liens of vendors and purchasers of real property are valid against every one claiming under the debtor, except a purchaser or incumbrancer in good faith and for value. 393 Lien of seller on real property. When transfer of contract waives lien. Extent of seller's lien. Tit. XI I. Ch.VI. OTHER LIENS. §§ 3443-4449- Lien of seller of personal property. Purchaser's lien on real property. Lien for sarvicep. Liens on isersonal property. Lien of factor. Banker's lien. Mechanic's lien Sec. 3443. One who sells personal property has a specific lien thereon, dependent on possession, for its price, if it is in his possession when the price becomes payable, and may en- force his lien in like manner as if the property was pledged to him for the price. Sec. 3444. 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, independent of possession, for such part of the amount paid as he may be entitled to recover back, in case of a failure of consideration. Sec. 3445. Every person who, while lawfully in posses- sion of an article of personal property, renders any service to the owner thereof, by labor or skill, employed for the protection, improvement, safe keeping, or carriage thereof, has a special lien thereon, dependent on possession, for the- compensation, if any, which is due him from the owner of such service, and livery or boarding or feed stable pro- prietors, and persons pasturing horses, or stock, have alien,, dependent on possession for their compensation in caring for, boarding, feeding, or pasturing such horses or stock. Sec. 3446. A person who makes, alters, or repairs any article of personal property, at the request of the owner, 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' pub- lic notice of the sale by advertising in some newspaper pub- lished 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 where the work was done, for ten days previous to the sale. The proceeds 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. Sec. 3447. A factor has a general lien, dependent on possession, for all that is due to him as such, upon all articles of commercial value that are intrusted to him by the same principal. Sec. 3448. A banker has a general lien, dependent on possession, upon all property in his hands, belonging to a customer, for the balance due to him from such customer in the course of the business. Sec. 3449. The liens of mechanics, for materials and services upon real property, are regulated by the Code of Civil Procedure. 394 §§3465-3472 NEGOTIABLE INSTRUMENTS IN GENERAL. Tit.XIIL Ch. I TITLE XIII. NEGOTIABLE INSTRUMENTS. CHAPTER I. Negotiable Instruments in General. Section 3465. Instruments payable to a person or his order, how construed. 3406. Unindorsed note, when negotiable. 3467. Fictitious payee. 3468. Presumption of consideration. 3469. Agreement to indorse. 3470. When may be made on separate paper. 3471. Kinds of indorsement. 3472. General indorsement, what. 3473. Special indorsement, what. 3474. General indorsement, how made special. 3475. Destruction of negotiability by in- dorser. 3476. Implied warranty of indorser. 3477. Indorsement without recourse. 3478. Same. 3479. Indorsee privy to contract. 3480. Effect of want of consideration. 34 1. Indorsee, in due course, what. 3482. Instrument left blank. 3483. Effect of want of demand on prin- cipal debtor. 3484. Presentment, how made. $485. Apparent maturity, when. 3486. Presumptive dishonor of bill, paya- ble after sight. Section 3487. Apparent maturity of bill, payable at sight. 3488. Apparent maturity of note. 3489. Same. 3490. Surrender of instrument, when a condition of payment. 3491. Dishonor, what. 3492. Notice, by whom given. 3493. Form of notice. ;*494. Notice, how served. 3495. Notice, how served after indorser's death. 3496. Notice, given in ignorance of death, valid. 3497. Notice, when to be given. 3498. Notice of dishonor, when to be mailed. 3499. Notice, how given by agent. 3500. Additional time for notice by in- dorser. 3501. Effect of notice of dishonor. 3502. Notice of dishonor, when excused. 3503. Presentment and notice, when ex- cused. 3504. Same. 3505. Delay, when excused. 350(5. Waiver of presentment and notice. 3507. Waiver of protest. Section 3465. An instrument otherwise negotiable in form, payable to a person named, but with the words added, "or to his order" or "to bearer;" or words equivalent thereto, is in the former case payable to the written order of such person, and in the latter case payable to the bearer. Sec. 3466. A negotiable instrument made payable to the order of the maker, or of a fictitous 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. Sec. 3467. A negotiable instrument, made payable to the order of a person obviously fictitious, is payable to the bearer. Sec. 3468. 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. Sec. 3469. One who agrees to indorse a negotiable in- strument is bound to write his signature upon the back of the instrument, if there is sufficient space thereon for that purpose. Sec. 3470. When there is not room for a signature upon the back of a negotiable instrument, a signature equivalent to an indorsement thereof may be made upon a paper an- nexed thereto. Sec. 3471. An indorsement may be general or special. Sec. 3472. A general indorsement is one by which no indorsee is named. 395 Instrument payable to a person or his order, how construed. Comp. laws, 052. Unindorsed note, when negotiable. Comp. laws, (553-5. Fictitious payee. Presumptions of consideration. Agreement to indorse. When may be made on separate paper. Kinds of indorsements. General, what. Tit. XIII. Gh. I. NEGOTIABLE INSTRUMENTS IN GENERAL. §§3473-3483 Special, what. General, how made special. Destruction of negotiability by indorser. Implied warranty of indorser. Indorsement without recourse. Same . Indorsee, privy to con- tract. Effect of want of consideration. Indorsee in due course, what. Instrument left blank. Effect of want of demand on principal debtor. Sec. 3473. A special indorsement specifies the in- dorsee. Sec. 3474. 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. Sec. 3475. A special indorsement may, by express words for that purpose, but not otherwise, be so made as to render the instrument not negotiable. Sec. 3476. 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, pay so much of the same as the holder paid therefor, with interest, unless exonerated under the provisions of this Title for failure to present the same. Sec. 3477. 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 indorse- ment. Sec. 3478. Except as otherwise prescribed by the last section, an indorsement without recourse has the same ef- fect as any other indorsement. Sec. 3479. An indorsee of a negotiable instrument has the same rights against every prior party thereto that he would have had if the contract had been made directly be- tween them in the first instance. Sec. 3480. The want of consideration for the undertak- ing of a maker, acceptor or indorser of a negotiable instru- ment, does not exonerate him from liability thereon to an indorsee in good faith for a consideration. Sec. 3481. 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 of its actual dishonor, acquires a nego- tiable instrument duly indorsed to him, or indorsed gener- ally, or payable to the bearer. Sec. 3482. One who makes himself a party to an instru- ment intended to be negotiable, but which is left wholly or partly in blank for the purpose of filling afterwards, is lia- ble upon the instrument to an indorsee thereof in due course in whatever manner and at whatever time it may be filled, so long as it remains negotiable in form. Sec, 3483. It is not necessary to make a demand of payment upon the principal debtor in a negotiable instru- ment in order to charge him, but if the instrument is by its terms payable at a specified place, and he is able and will- ing to pay it there at maturity, such ability and willingness are equivalent to an offer of payment upon his part. 396 5§ 3484-3490 NEGOTIABLE INSTRUMENTS IN GENERAL. Tit.XIfl. Ch.I. Sec. 3484. Presentment of a negotiable instrument for payment when necessary, must be made as follows, as near- ly as by reasonable diligence it is practicable: First. The instrument must be presented by the holder or his agent : Second. The instrument must be presented to the princi- pal 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 of the place, or employed therein, if one can be found there; Third. 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 at the place; Fourth. An instrument which does not specify a place for its payment, must be presented at the place of residence or business of the principal debtor, or wherever he may be found, at the option of the presentor; and, Fifth. The instrument must be presented upon the day of its maturity, or, if it be payable on demand, it may be pre- sented upon any day. It must be presented within reason- able hours; and if it be payable at a banking house, within the ususal banking hours of the vicinity, but, by the con- sent of the person to whom it should be presented, it may be presented at any hour of the day; Sixth. If the principal debtor have no place of business, or if his place of business or residence cannot, with reason- able diligence, be ascertained, presentment for payment is excused. Sec. 3485. The apparent maturity of a negotiable in- strument, 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. Sec. 3486. A bill of exchange, payable at a certain time after sight, which is not accepted within ten days after its date, in addition to the time which would suffice, with ordinary diligence, to forward it for acceptance, is presumed to have been dishonored. Sec. 3487. The apparent maturity of a bill of exchange, payable at sight or on demand, is: 1. If it bears interest according to its terms one year af- ter its date; or, 2. If it does not bear interest according to its terms ten days after its date, in addition to the time which would suf- fice, with ordinary diligence, to forward it for acceptance. Sec. 3488. The apparent maturity of a promissory note, payable at sight, or on demand, is: 1 . If it bears interest according to its terms, one year af- ter its date; or, 2. If it does not bear interest according to its terms, six months after its date. Sec. 3489. Where a promissory note is payable at a cer- tain time after sight or demand, such time is to be added to the periods mentioned in the last section. Sec. 3490. A party to a negotiable instrument may re- quire, as a condition concurrent to its payment byjhim: 397 Presentment, how made. Apparent maturity, when. Presumptive dishonor of bill payable after eight. Apparent maturity of bill payable at sight. Apparent maturity of note. Same. Surrender of instrument when a con- dition payment. Tit. XIII. Ch. I. NEGOTIABLE INSTRUMENTS IN GENERAL. §§ 3491-3498 Dishonor, what. Notice, by whom given. Form of notice. Notice, how served. 1. That the instrument be surrendered to him unless it is lost or destroyed; or the holder has other claims upon it; or 2. If the holder has a right to retain the instrument and does retain it, 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 give to him a bond; executed by himself and two sufficient sureties to indemnify him against any lawful claim thereon. Sec. 3491. A negotiable instrument is dishonored when it is either not paid, or not accepted according to its tenor, on presentment for the purpose, or without presentment where that is excused. Sec. 3492. Notice of the dishonor of a negotiable in- strument may be given: 1. By any holder thereof or his agent; or 2. By any party to the instrument who might be com- pelled to pay it to the holder, and who would upon taking it up, have a right to reimbursement from the party to whom the notice is given, or the agent of such party. Sec. 3493. A notice of dishonor may be given in any form which describes the instrument with reasonable cer- tainty and substantially informs the party receiving it that the instrument has been dishonored. Sec. 3494. 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 act- ing for him ; or 3. By properly folding the notice, directing it to the par- ty to be charged, at his place of residence, according to the best information that the person giving the notice can ob- tain, depositing it in the postoffice most conveniently ac- cessible from the place where the presentment was made, and paying the postage thereon. Sec. 3495. In case of the death of a party to whom no- tice of dishonor should otherwise be given, the notice must be given to one of his personal representatives; or, if there are none, then to 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 sub- division 3 of the last section. . Sec. 3496. A notice of dishonor sent to a party after his death, but in ignorance thereof, and in good faith, is valid. Sec. 3497. Notice of dishonor when given by the holder of an instrument or his agent, otherwise than by mail, must be given on the day of dishonor, or on the next business day thereafter. Sec. 3498. When notice of dishonor is given by mail, it must be deposited in the postoffice in time for the first mail which closes afternoon of the first business day suc- ceeding the dishonor, and which leaves the place where the instrument was dishonored, for the place to which the no- Notice, how served after indorser's death. Notice given in ignorance of death valid. Notice, when to be given. Notice of dis- h >uor, when to be mailed. tice should be sent. 398 §§ 3499-3507 NEGOTIABLE INSTRUMENTS IN GENERAL. Tit. XIII. Ch. L Sec. 3499. When the holder of a negotiable instrument, at the time of its dishonor, 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 him- self 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. Sec. 3500. Every party to a negotiable instrument, re- ceiving notice of its dishonor, has the like time thereafter 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. Sec. 3501. A notice of the dishonor of a negotiable in- strument, 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. Sec. 3502. Notice of dishonor is excused: 1. When the party by whom it should be given cannot, with reasonable diligence, ascertain either the place of resi- dence or business of the party to be charged; or, 2. When there is no postoffice 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 waived by- the party entitled thereto. Sec. 3503. Presentment and notice are excused as to any party to a negotiable instrument who informs the holder in writing within ten days before its maturity, that it will be dishonored. Sec. 3504. If, before or after the maturity of an instru- ment, an indorser has received full security for the amount thereof, or the maker has assigned all his estate to him as such security, presentment and notice to him are excused. Sec. 3505. 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. Sec. 3506. A waiver of presentment waives notice of dishonor also, unless the contrary is expressly stipulated; but a waiver of notice does not waive presentment. Sec. 3507. A waiver of protest on any negotiable in- strument other than a foreign bill of exchange waives pre- sentment and notice. Notice, how given by agent. Additional, time for notice by indorser. Effect of notice of dishonor. Notice of dis- honor, when excused. Presentment, etc., when excused. Same. Delay, when excused. Waiver of presentment and notice. Waiver of protest. 399 Tit. XIII. Ch. II. BILLS OF EXCHANGE. ££ 3520-3527 CHAPTER II. Bills of Exchange. Bill of exchange, what. Drawee, in case of need. When niust be in a set. Presentment, etc., part of set. Bill, where payable. Rights and obligations of drawer. Days of grace. When a bill may be presented. 3521. 3522. 3523. 3524. 3525. 3526. 3527. 3528. 3529. 3530. 3531. 3532. 3533. 3534. 3535. 3536. 3537. 3538. 3539. 3540. 3541. 3542. 3543. Section 3544. Presentment, when bill not accept- ed ; where made. Presentment of bill, payable at par- ticular place Effect of delay in presentment, in certain cases. Effect in other cases. Presentment, when excused. Delay, when excused. Presentment and notice, when ex- cused. Definitions. Protest necessary. By whom made. How made . Where made. When made. When excused. Notice of, how given . Waiver of. Declaration before payment for honor. Damages allowed on dishonor of foreign bill. Rate of damages. Interest on amount of protested bill. Damages, how estimated. Same. 3545. 3546. 3547. 3548. 3549. 3550. 3551. 3552. 3553. 3554. 3555. 3556. 3557. 3558. 3559. 3560. 3561. 3562. 35G3. 3564. 3565. Section 3520. Bill of exchange., what. Drawee, in case of need. When must be in a set. Presentment; etc., of part of set. Bill, where payable. Rights and obligations of drawer. Days of grace. When a bill may be presented. Presentment, how made. Presentment to joint drawees. When presentment to be made to drawee in case of need. Presentment, when must be made. Acceptance, how made. Holder entitled to acceptance on face of bill. What acceptance sufficient with consent of holder. Acceptance by separate instrument. Promise to accept, when equivalent to acceptance. Cancellation of acceptance. What is admitted by acceptance. When bill may be accepted or paid for honor . Holder of bill of exchange bound to accept payment for honor. Acceptance for honor, how made. How enforced. Notice of dishonor not excused by acceptance for honor. Section 3520. A bill of exchange is an instrument ne- gotiable in form, by which one who is called the drawer, requests another, called the drawee, to pay a specified sum of money. Sec. 3521. A bill of exchange may give the name of any person in addition to the drawee, to be resorted to in case of need. Sec. 3522. 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. Sec. 3523. Presentment, acceptance or payment of a single part in a set of a bill of exchange, is sufficient for the whole. Sec. 3524. A bill of exchange is payable : 1. At the place where, by its 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 dili- gence be ascertained, presentment for payment is excused, and the bill may be protested for non-payment. Sec. 3525. 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. Sec. 3526. Days of grace arc not allowed upon bills of exchange or promissory notes. Sec. ,3527. At any time before a bill of exchange is pay- able, tne holder may present it to the drawee for acceptance and if acceptance is refused, the bill is dishonored. 400 §§ 3528-3537 BILLS OF EXCHANGE. Tit. XIII. Ch. II. Sec. 3528. Presentment for acceptance must be made in the following manner, as nearly as by reasonable dili- gence it is practicable: 1. The bill must be presented by the holder or his agent; 2. It must be presented on a business day, and within reasonable hours; 3. It must be presented to the drawee, or, if he be absent from his place of residence or business, to some person hav- ing charge thereof, or employed therein; and 4. The drawee, on such presentment, may postpone his acceptance or refusal until the next day. If the drawee have no place of business, or if his place of business or resi- dence cannot, with reasonable diligence, be ascertained, presentment for acceptance is excused, and the bill may be protested for non-acceptance. Sec. 3529. Presentment for acceptance to one of sev- eral joint drawees, and refusal by him, dispenses with pre- sentment to the others. Sec. 3530. A bill of exchange which specifies a drawee in case of need, must be presented to him for acceptance or payment, as the case may be, before it can be treated as dis- honored. Sec. 3531. When a bill of exchange is payable at a spec- ified time after sight, the drawer and indorsers are exoner- ated 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. Sec. 3532. 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. Sec. 3533. 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 face an unqualified acceptance. Sec. 3534. The holder of a bill of exchange may, with- out 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 separate paper; 2. An acceptance qualified so far only as to make the bill payable at a particular place within the city or town which, if the acceptance was unqualified, it would be payable; or, 3. A refusal by the drawee to return the bill to the holder after presentment, in which case the bill is payable imme- diately without regard to its terms. Sec. 3535. 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 con- sideration. Sec. 3536. An unconditional promise in writing, to ac- cept a bill of exchange, is a sufficient acceptance thereof, in favor of every person who, upon the faith thereof, has taken the bill for value or other good consideration. Sec. 3537. 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 witli the consent of the ac- Preaentment for acceptance, how made. Presentment to joint drawees. Presentment made to drawee. Presentment, when must be made. Acceptance, how made. Comp. laws, 653. Holder entitled to acceptance on face of bill. Comp. laws, 653. What accept- ance sufficient with consent of holder. Comp. laws, 653. Acceptance by separate instrument. Comp. laws, 653. Promise to accept when equivalent to acceptance. Comp. laws. 653. Cancellation of acceptauce. 26 401 Tit. XIII. Ch. II. BILLS OF EXCHANGE. §§ 3538-3551 What is ad- mitted by acceptance. When bill may be accepted or paid for honor. Holder of bill of exchange bound to accept pay- ment for honor. Acceptance for honor, how made. How enforced. Notice of dishonor not excused. Presentment when bill not accepted, where made. Presentment of bill payable at particular place. Effect of delay in presentment in certain cases. Effect in other cases. Presentment, when excused. Delay, when excused. Presentment and notice, when excused. Definitions. ceptor transferred his title to another person who has given value for it upon the faith of such acceptance. Sec. 3538. The acceptance of a bill of exchange admits the signature of the drawer, but it does not admit the sig- nature of any indorsee to be genuine. Sec. 3539. On the dishonor of a bill of exchange by the drawee, and, in case of a foreign bill, after it has been duly protested, it may be accepted or paid by any person, for the honor of any party thereto. Sec. 3540. The holder of a bill of exchange is not bound to allow it to be accepted for honor, but is bound to accept payment for honor. Sec. 3541. The acceptor or payor for honor must write a memorandum upon the bill stating therein for whose hon- or 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 from such parties and from all parties prior to them. Sec. 3542. 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 dishonor by him must be given to the acceptor for honor, in like manner as to an endorser, after which the acceptor for honor must pay the bill. Sec. 3543. The acceptance of abill of exchange for hon- or does not excuse the holder from giving notice of its dis- honor by the drawee. Sec. 3544. If a bill of exchange is by its terms payable at a particular place, and is not accepted on presentment it must be presented at the same place for payment, when presentment for payment is necessary. Sec. 3545. 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. Sec. 3546. It: a bill of exchange, payable at sight or on demand without interest, is not duly presented for payment within ten days after the time in which it could, with reas- onable diligence be transmitted to the proper place for such presentment, the drawer and indorser are exonerated, unless such presentment is excused. Sec. 3547. Mere delay in presenting a bill of exchange or promissory note payable with interest at sight or on demand, does not exonerate any party thereto. Sec. 3548. The presentment of a bill of exchange for acceptance is excused if the drawee has not capacity to ac- cept it. Sec. 3549. Delay in the presentment of a bill of ex- change for acceptance is excused, when caused by circum- stances over which the holder has no control. Sec. 3550. Presentment of a bill of exchange for ac- ceptance 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 believe that the drawee would accept or pay the same. Sec. 3551. An inland bill of exchange is one drawn and payable within this Territory. All others are foreign. 402 §§ 3552-3562 BILLS OF EXCHANGE. Tit. XII I. Ch.II. Sec. 3552. Notice of the dishonor of a foreign bill of exchange can be given only by notice of its protest. Sec. 3553. 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 wit- nesses. Sec. 3554. 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 the presentment, and the manner in which it was made; the presence or absence of the drawee or acceptor, as the case may be; the refusal to accept or to pay, or the inabil- ity of the drawee to give a binding acceptance; and in case of refusal, the reason assigned, if any; and finally, protest- ing against all the parties to be charged. Sec. 3555. A protest for non-acceptance must be made in the city or town in which the bill is presented for accept- ance and a protest for non-payment in the city or town in which it is presented for payment. Sec. 3556. A protest must be noted on the day of pre- sentment, or on the next business day; but it may be writ- ten out at any time thereafter. Sec. 3557. The want of a protest of a foreign bill of ex- change, or delay in making the same, is excused in like cases with the want or delay of presentment. Sec. 3558. Notice of protest must be given in the same manner as notice of dishonor, and may be given by the No- tary who makes the protest. Sec. 3559. If a foreign bill of exchange on its face waives protest; notice of dishonor may be given to any party thereto in like manner as of an inland bill; except that if any indorser of such a bill expressly requires protest to be made, by a direction written on the bill at or before his in- dorsement, protest must be made, and notice thereof given to him and to all subsequent indorsers. Sec. 3560. One who pays a foreign bill of exchange for honor, must declare before 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. Sec. 3561. Damages are allowed as hereinafter pre- scribed, as a full compensation for interest accrued before notice of dishonor, 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. Sec. 3562. Damages are allowed under the last section upon bills drawn upon any person: 1. If drawn upon any person in this Territory, two dol- lars upon each one hundred dollars of the principal sum spec- ified in the bill; 2. If drawn upon any person out of this Territory, but in any of the states or other territories west of the Rocky Mountains, five dollars upon each one hundred dollars of the principal sum specified in the bill; 3. If drawn upon any person in the United States east of the Rocky Mountains, ten 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 403 Protest necessary. Protest, by whom made. Protest, how made. Protest, where made. When mude. When excused. Notice, how given. waiver of protest. Declaration before pay- ment for honor. Damages allowed on dishonor of foreign bill. Comp. laws, 654, Rate of damages. Tit. XIII. Ch.III-IV. PROMISSORY NOTES.-CHECKS. §§ 3563-3591 country, fifteen dollars upon each hundred dollars of the principal sum specified in the bill. Sec. 3563. 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 in the preceding section. Sec. 3564. If the amount of a protested bill of ex- change is expressed in money of the United States, dam- ages are estimated upon such amount without regard to the rate of exchange. Sec. 3565. If the amount of a protested bill of exchange is expressed in foreign 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 are currently sold. Intorost ou amount of protested bill. Comp. laws, 654. Damages, how estimated . Comp. laws. 654. Same. 655. Promissory note, what. Certain instruments promissory notes. Bill of exchange when con- verted into :t note. Effect of delay in presentment. CHAPTER III.. Promissory Notes. Section 3575. Promissory note, what. 3576. Certain instruments promissory notes. Section 3577. Bill of exchange, when converted into a note. 3578. Effect of delay in presentment. Section 3575. A promissory note is an instrument ne- gotiable in form, whereby the signer promises to pay a spec- ified sum of money. Sec. 3576. An instrument in the form of a bill of ex- change, but drawii upon and accepted by the drawer him- self, is to be deemed a promissory note. Sec. 3577. 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 exon- erated. Sec. 3578. 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. Check, what. Rules applicable to checks. CHAPTER IV. Checks. Section 3590. Check, what. Section •3591. Rules applicable to. Section 3590. A check 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. Sec. 3591. A check is subject to all the provisions of this Code concerning bills of exchange except that : 1 . The drawer and endorsers are exonerated by delay in presentment only to the extent of the injury which they suffer 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. 404 §§ 3600-3602 INSTRUMENTS.- COUNTY INDEBTEDNESS. Tit. XIII. Ch. V-VL CHAPTER V. Instruments Made Negotiable by Indorsement. Section 3600. Non-negotiable instruments be transferred. may Section 3601. Liability of assignor. Section 3600. A non-negotiable written contract for Non-negotiabie the payment of money or personal property may be trans- mlySJf ents f erred by indorsement, in like manner with negotiable in- • transferred. struments. Such indorsement transfers 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 the indorsement. Sec. 3601. Every assignor, his heirs, executors, or admin- istrators, of every such instrument in writing, is liable to the action of the assignee thereof, his executors, or administra- tors, if such assignee has used diligence, by the institution and prosecution of a suit against the maker of such instru- ment, or against his heirs, executors, or administrators, for recovery of the money or property due thereon, or damages in lien thereof; but if the institution of such suit would have been unavailing, or the maker had absconded or left, or was absent from the Territory when such assigned in- strument became due, or absconds within twenty days there- after, such assignee, his heirs, executors or administrators, may recover against the assignor, or his heirs, executors, or administrators, as if due diligence by suit had been used. By "due diligence," shall be understood the institution of suit within sixty days after the maturity of the obligation. 8 ses.,048. Liability of assignor. Comp. laws, 649. CHAPTER VI. Redemption of County Indebtedness. Section 3602. Funding county indebtedness. Clas- sification of indebtedness. Bonds. Interest. Time and place of pay- ment. 3603. Bonds and coupons, execution of recital 6. Section 3604. Notice 3605. 3606. of intention to issue. Re- gister of bonds. Sale of bonds. Proceeds. Notice of redemption of indebtedness. Treasurer's rec- ord of bonds. Tax to pay bonds and interest. Property pledged for payment. Application of funds. Compensation of Treasurer. Section 3602. The Board of County Commissioners of any county may issue negotiable coupon bonds of their county for the purpose of paying, redeeming, funding or re- funding the principal and interest of any of the following- indebtedness of their county, when, same can be done, at a lower rate of interest and to the profit and benefit of the county. First. Any indebtedness contracted prior to July 30th, A.D. 1886. Second. Any indebtedness contracted subsequent to July 30th, A.D. 1886. And all bonds issued under the provisions of this act must show, on their face, for which of the fore- going classes of indebtedness they are issued. Said bonds shall be issued as near as practicable in de- nominations of one thousand dollars each, but bonds of the denominations of five hundred and one hundred dollars may 405 Funding county indebtedness. 14 ses. Indebtedness classified. Bonds, denominations of. Tit. XIII. Ch.VL REDEMPTION OF COUNTY INDEBTEDNESS. §§ 3603-3604 Rate of interest. When due. Place of payment. Time of payment. Bonds and coupons. Signed and attested. Recitals. Chapter to be printed on bonds. Public notice. Bidders. Bonds prepared. Registry of bonds. Delivery to treasurer. Sale of bonds. be issued when necessary. Said bonds must bear interest at a rate of not to exceed eight per cent per annum, to be paid on the first day of January and the first day of July in each year, at the office of the county treasurer, or at such bank in the city of New York as may be designated by the Board of County Commissioners, at the option of the holder thereof; such bonds to be redeemed by the county in the following manner: Ten per cent of the total amount issued to be paid in ten years from the date of issue; and ten per cent annually thereafter until all of said bonds are paid, making the last bonds redeemable twenty years from the date of issue. But said bonds, or any part thereof, may, at the option of the county issuing the same, be redeemed at any time after five years from the date of their issue, provided such time and option be stated upon the face of each bond, and each bond must be redeemed in the order it is numbered. Sec. 3603. The bonds mentioned in section 3602 of this chapter, must have attached to each bond, when negotiated semi-annual interest coupons covering the interest ex- pressed in the bond from the date of issue until paid; such bonds must be signed by the chairman of the Board of County Commissioners, attested by the clerk of said board; and bear the seal of the Board of County Commissioners and countersigned by the County Treasurer of the county; and the coupons annexed to such bonds must be signed by the Treasurer of said county. Each coupon must have an- nexed to the same a number corresponding with the num- ber of the bond, and each bond must state, upon its face, the amount for which the same is issued, to whom issued and the date of issue; and must also recite that it is issued in conformity with the provisions of this chapter, and this chapter must be printed on the back of each bond. Sec. 3604. The said Board of County Commissioners must give notice by publication in some newspaper pub- lished in the county, if there be one, dtherwise by three no- tices posted up in the county, one of which must be at the court house door, of its intention to issue and negotiate such bonds, and invite bidders therefor, and after ascertaining the best terms upon and the lowest interest at which such bonds can be negotiated, must secure the proper engraving and printing thereof, and thereafter must have them con- secutively numbered and otherwise properly prepared, and executed, and when so executed they must be by the Audi- tor registered in a public record book to be kept for that pur- pose; and therein must be stated the number, date, amount of bond, time and place of payment, rate of interest, num- ber of coupons attached and any other proper description thereof for future identification; that then said board must from time to time in such amounts as it may deem best, de- liver said bonds to the County Treasurer, and take and file his receipt therefor, and charge him with all bonds so deliv- ered, and any duties required of said board in pursuance of the provisions of this chapter may be performed at any gen- eral, special or called meetings thereof. The Treasurer must, under the general supervision of said board, sell said bonds for cash or exchange them for any of the county indebted- ness for the redemption of which they were so issued, but in no case must said bonds be sold or exchanged for less 406 §§3605-3606 REDEMPTION OF COUNTY INDEBTEDNESS. TitXIIL Ch. VI. Redemption of indebtedness. Proceeds of bonds. Notice of redemption. Cancellation of warrants redeemed. Treasurers record of bonds. Statement to board . Levy to pay bonds and interest. than their face or par value and the accrued interest at time of disposal; nor must any county indebtedness be redeemed at more than its face value and any interest that may be due thereon. If any portion of said bonds are sold for money, the proceeds thereof must be applied exclusively toward the redemption of said county indebtedness for the redemption of which such bonds were issued. And the treasurer must give notice, as provided by law, of his readi- ness to redeem such indebtedness, and thereafter interest thereon shall cease. When the Treasurer redeems any county indebtedness he must endorse, by writing or stamp- ing in ink, on the face of the paper evidencing such indebt- edness so redeemed, the time when and the amount for which redeemed, whether by money or the exchange of bonds, and the words "redeemed" and "cancelled." He must also keep a record of all bonds disposed of by him, showing their number, rate of interest, date and amount of sale, when, where and to whom payable; and if exchanged, for what, which record he must keep open for inspection for the public at all reasonable office hours. And he must make such detailed statements to and as often as required by said board, of all his transactions under the provisions of this chapter, and return to the board evidences of indebtedness, redeemed by him, cancelled as aforesaid. Sec. 3605. The Board must cause to be levied annually upon all the taxable property of the county, in addition to other authorized taxes, a sufficient sum to pay the interest on all bonds disposed of in pursuance of the provisions of this chapter, and must at least one year before such bonds become due, and in time to provide the means for their pay- ment, cause to be levied a sufficient additional sum to pay said bonds as they become due, and all such taxes must be levied, assessed and collected as other county taxes, until the bonds so issued are fully paid, including the interest thereof; the faith, credit, and all taxable property within the limits of the county as constituted at the time of such issue are, and must continue pledged, and the proper officer of the county must continue to assess and collect on all the tax- able property within such limits, the necessary taxes to pay said bonds and interest thereon as the same becomes due; but the segregated territory must be relieved of such taxa- tion when the county acquiring such territory pays to the county losing the same, the same proportion of the whole indebtedness of the county as the assessed value of the prop- erty in the segregated territory bears to the assessed value of the property in the whole county, as constituted before the division thereof. Should the tax for the payment of in- terest on any bonds issued under the provisions of this chapter, at any time not be levied or collected in time to meet such payment, the interest must be paid out of any moneys in the county general or current expense fund of the county, and the moneys so used for such payment of in- terest must be repaid to the fund from which so taken out of the first moneys collected from taxes. Sec. 3606. It shall be the duty of the county treasurer to apply the funds derived from the sale of the bonds to the payment of the indebtedness herein mentioned, and to no other purpose; and it shall be the duty of the county officials 407 Property pledged for payment. Segregated territory. Payment of interest out of general fund. Application of funds. Tit. XI II. Ch. VI. KEDEMPTION OF COUNTY INDEBTEDNESS. 3607 Application of tax. Penalty. Compensation of treasurer. to levy, collect and apply the tax herein provided for the payment of interest and redemption of the principal of the bonds in the manner specified, and for no other purpose; and any failure to comply with the conditions of this chapter by the proper officers or any neglect or refusal to levy and col- lect any such tax, as aforesaid, shall be deemed a mis- demeanor, and any county official guilty of the same must, upon conviction, be fined in an amount equal to the sum that should have been levied, or for any misappropriation he shall be fined in an amount equal to the sum so misap- propriated, and imprisoned in the county jail for a term of not less than three months nor more than twelve months. Sec. 3607. The treasurers of the respective counties shall, for the servicesrequired of them by the provisions of this act, receive a compensation of not less than one-fourth of one per cent, nor more than one-half of one per cent, of the amount of bonds issued under the provisions of this act, and the Board of County Commissioners shall, at the time of issuing such bonds, fix the rate of compensation, and when such bonds are sold shall audit and allow the account of such treasurer. [Act Jan. 25, 1887, in effect immediately.] 408 * §§3620-3634 GENERAL PRINCIPLES.-PUBLIC NUISANCES. Tit XIV. Ch.l-IL TITLE XIV. NUISANCE. CHAPTER I. General Principles. Section 3620. Nuisance, what. 3621. Public nuisance. 3622. Private nuisance. Section 3623. What not deemed a nuisance. 3624. Successive owners. 3625. Abatement does not preclude action. Section 3620. Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the com- fortable enjoyment of life or property, or unlawfully ob- structs the free passage or use, in the customary manner, of any navigable lake, or river, stream, canal, or basin, or any public park square, street, or highway, is a nuisance. Sec. 3621. A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be un- equal. Sec. 3622. Every nuisance not included in the defini- tion of the last section is private. Sec. 3623. Nothing which is done or maintained under the express authority of a statute can be deemed a nui- sance. Sec. 3624. 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 there- for in the same manner as the one who first created it. Sec. 3625. The abatement of a nuisance does not prej- udice the right of any person to recover damages for its past existence. CHAPTER II. Public Nuisances. Section 3630. Lapse of time does not legalize. 3631. Abatement. 3632. Indictment. Section 3633. Remedies for public nuisance. 3634. Action. 3635. How abated. Nuisance, what. Public nuisance. Private nuisance. What is not deemed a nuisance. Successive owners . Abatement does not pre- clude action. Section 3630. No lapse of time can legalize a public Lapse of time nuisance, amounting to an actual obstruction of public does not legalize. right. Sec. 3631. The remedies against a public nuisance are: Abatement. 1. Indictment; 2. A civil action; or, 3. Abatement. Sec. 3632. The remedy by indictment is regulated by indictment, the Penal Code. Sec. 3633. A private person may maintain an action for Remedies for a public nuisance if it is specially injurious to himself, but public nuisance. not otherwise. Sec. 3634. A public nuisance may be abated by any Action in. public body or officer authorized thereto by law. 409 Tit. XIV. Ch.ni. PRIVATE NUISANCES. §§ 3635-3642 How abated. gEC# 3635. Any person may abate a public nuisance which is specially injurious to him by removing, or, if nec- essary, destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnec- essary injury. Remedies for private nuisance. Abatement, when allowed. When notice required . CHAPTER III. Private Nuisances. Section 3640. Remedies for private nuisance. 3641. Abatement, when allowed. Section 3(542. When notice is required. Section 3640. The remedies against a private nuisance are: 1. A civil action; or 2. Abatement. Sec. 3641. A person 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. Sec. 3642. 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. 410 CODE OF CIVIL PKOCEDUEE OF IDAHO TEEEITORY. PART THIKD.-REMEDIAL. CODE OF CIVIL PROCEDURE. PRELIMINARY PROVISIONS. Section 3800. Title of Part III of the Revised Statutes, and how cited. Section 3801. Civil and criminal remedies not merged. Title of Part III of statutes, and how cited. Section 3800. Part Third of these Revised Statutes shall be known as the Code of Civil Procedure of the Terri- tory of Idaho, and whenever cited, enumerated, referred to, or amended, may be designated simply as the Code of Civil Procedure, adding, when necessary, the number of the section. Sec. 380 1 . When the violation of aright admits of both civii and crimi Y a civil and criminal remedy, the right to prosecute the one £Stm™ge1\ "fy C.C PART I.— COURTS OF JUSTICE. TITLE I. OPvGANIZATION AND JURISDICTION. CHAPTER I. Courts of Justice, in General. Section 3810. The several courts of this Territory. Section 3811. Courts of Record . ■I Section 3810. The following are the Courts of Justice The courts of this Territory: 1. The Supreme Court; 2. The Districts Courts; 3. The Probate Courts; 4. The Justices' Courts. Sec. 3811. The courts enumerated in the first three courts of record subdivisions of the preceding section are Courts of Record. 413 hi ■ *f Tit.L Ch.II-III. THE SUPREME COURT.-DISTRICT COURTS. §g 3815-3830 CHAPTER II. Op the Supreme Court. Section 3815. Jurisdiction of two kinds. 3810. Original jurisdiction. 3817. Appellate jurisdiction. 3818. May reverse, affirm, modify, etc., remittitur. Section 3819. Number of Judges necessary for the transaction of business. 3820. Number to pronounce judgment. 3821. Terms, when held, additional terms. $ 5~o ? & ? M Original juris- diction. Appellate juris- diction. May reverse, affirm, or modi- fy, etc., remit- titur . Decisions in writing. Presence of two justices. Concurrence of two justices. Terms of the supreme court. the is- habeas its ap- jurisdiction. Section 3815. The jurisdiction of this court is of two kinds : 1. Original; and 2. Appellate. Sec. 3816. Its original jurisdiction extends to suance of writs of mandate, review, prohibition, corpus, and all writs necessary to the exercise of pellate jurisdiction. Sec. 3817. Its appellate jurisdiction extends to a re- view of all cases removed to it under such regulations as are imor may be prescribed by law, from the final decisions of the District Courts. Sec. 3818. The court may reverse, affirm, or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct anew trial or further proceedings to be had. Its judgment must be re- mitted to the court from which the appeal was taken. The decisions of the court shall be given in writing; and in giv- ing a decision, if a new trial be granted, the court shall pass upon, and determine all the questions of law in- volved in the case, presented upon such appeal, and nec- essary to the final determination of the case. Sec. 3819. The presence of two Justices is necessary for the transaction of business, hut one of the Justices may adjourn the court from day to day with the same effect as if all were present. Sec. 3820. The concurrence of two Justices is necessa- ry to pronounce a judgment; if two do not concur, the case must be reheard. Sec. 382 1 . There must be at least one term in each year for the hearing of causes, to be held at the capital of the Territory at such time as the court may by rule, or order, designate. Additional terms may also be held by order of the court. Mxaa.(Iju J^ SUW^ ^am f-fef^APTER III. IViP-l ^ cxolcWq ^^<^)F THE DlSTRICT courts. I Section Section 3830. Jurisdiction. [3833. Judgments may be entered in vaca- 3831. Duration of terms. tion. 3832. Adjournment of the court. Sec. 3830. The jurisdiction of the District Courts ex- tends: 1. To all civil actions for relief formerly given in Courts of Equity; 2. To all civil actions in which the subject of litigation is not capable of pecuniary estimation; 3. To all civil actions in which the subject of litigation is capable of pecuniary estimation, which involve the title or 414 Jurisdiction. 3831-3842 OF THE PROBATE COURT. Tit. I. Ch. IV. possession of real estate; or the legality of any tax, rnqfist assessment, toll, or municipal fine, or in which the demand or the value of the property in controversy exceeds one hun- dred dollars; 4. To all special proceedings; 5. To the issuance of writs of mandate, review, prohibi- tion, habeas corpus, and all writs necessary to the exercise of its powers; 6. To the trial of all indictments; 7. Its appellate jurisdiction extends to all cases arising in Probate or Justices' Courts; and to all other matters and cases wherein an appeal is allowed by law. Sec. 3831. Each term must be held until the business is disposed of, or until a day fixed for the commencement of some other term in the district. Sec. 3832. The court may adjourn from time to time Adjournments. during the term, and may, when the public convenience re- quires, adjourn the term over the time fixed by law for the commencement of another term in the same district. Sec. 3833. Judgments and orders of this court may be judgments entered either in term or vacation. ■r77 Duration ol term. and orders entered in vacation . CHAPTER IV. Of the Probate Court. P. Section 3840. Court in each county. 3841. Jurisdiction of. 3842. Presumptions in favor of its judg- ments. Section _ _ , . / 3843. Terms of the court in the respective I 0/ I ■ P&f0- counties. ' / ' 3844. Terms, where held. Shall have a Clerk. I Section 3840. There must be a Probate Court held in each of the counties. Sec. 3841. The Probate Court has jurisdiction: 1. To open and receive proof of last wills and testaments and to admit them to proof; 2. To grant letters testamentary of administration and of guardianship, and to revoke the same; 3. To appoint appraisers of estates of deceased persons; 4. To compel executors, administrators and guardians to render accounts; 5. To order 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 and the produc- tion of title deeds, papers and other property of an estate or of a minor; 9. To make such orders as may be necessary to the exer- cise of the powers conferred upon it. In addition to their probate jurisdiction to hear and de- termine all civil causes wherein the damage or debt claimed does not exceed the sum of five hundred dollars, exclusive of interest, and concurrent jurisdiction with Justices of the Peace in criminal cases. Sec. 3842. The proceedings of this court are const ruei I in the same manner and with like intendments as the pro- ceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees there is accorded like force, 415 Court in each county. Jurisdiction of probate court. Prosumptions as to probate proceedings. Tit. I. Ch. V. OF JUSTICES' COURTS. £§ 3843-3853 Terms in the several counties. effect and legal presumptions as to the records, orders, judg- ments and decrees of District Courts, Provided, That this section shall be applicable to its probate proceedings, rec- ords, orders, judgments and decrees only. Sec. 3843. The terms of the Probate Courts in the several counties for the transaction of all probate business, except that specially authorized by law to be done in vacation, must be held on the fourth Monday in each month. For the trans- action of all civil, other than probate business, and all crim- inal business, these courts are always open. Sec. 3844. The terms of the Probate Courts must be held at the county seats. There shall be a Clerk of said Court to be appointed by the Judge thereof or the Probate Judge may act as Clerk of his own Court. Every Probate Judge shall be responsible upon his official bond, for every default or misconduct in office of his Clerk. Terms where held. Clerk. f m Justice must hold court where. Civil juris- diction. Jurisdiction restricted. Jurisdiction extends to countv. CHAPTER V. Of Justices' Courts. Section 3850. Justices of the Peace must hold. 3851. Civil jurisdiction. 3852. Civil jurisdiction restricted. Section 3853. Territorial extent of civil jurisdic- tion. 3854. Criminal jurisdiction. Section 3850. Every Justice of the Peace must hold a Justice's Court in the precinct or city for which he is elected or appointed. Sec. 3851. The civil jurisdiction of these courts within their respective precincts or cities extends: 1. To an action arising on contract, for the recovery of money only, if the sum claimed does not exceed three hun- dred dollars; 2. To an action for damages to the person, or for taking or detaining personal property, or for injuring personal property, or for an injury to real property, where no issue is raised by the answer involving the plaintiff's title, or possession of the same, if the damages claimed do not ex- ceed three hundred dollars; 3. To an action for a fine, penalty or forfeiture, not ex- ceeding three hundred dollars, given by statute or the ordi- nance of an incorporated city: 4. To an action upon a bond or undertaking conditioned for the payment of money not exceeding three hundred dol- lars, 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 becomes due; 5. To an action to recover the possession of personal prop- erty when the value of such property does not exceed three hundred dollars; 6. To take and enter judgment on the confession of a de- fendant, when the amount confessed does not exceed three hundred dollars. Sec. 3852. The jurisdiction conferred by the last section shall not extend however to a civil action in which the title or possession of real property is put in issue. Sec. 3853. Mesne and final process of Justices' Courts may be issued to any part of the county in which they arc held. 416 ■:§§ 3854-3862 COURTS OF JUSTICE. Till. Ch. VI. Sec. 3854. These courts have jurisdiction of the follow- ing public offenses, committed within the respective coun- ties in which such courts are established: 1. Petit larceny; 2. Assault and battery, not charged to have been commit- ted upon a public officer in the discharge of his duties; 3. Breaches of the peace, riots, affrays, committing a willful injury to property, and all misdemeanors punished by fine not exceeding three hundred dollars, or imprison- ment in the county jail not exceeding six months, or by both such fine and imprisonment. Criminal jurisdiction. /M CHAPTER VI. General Provisions Respecting Courts of Justice. Section 3860. Sittings public. 3861. Limitation on preceding section. 3862. Powers of court respecting the con- duct of judicial proceedings. 3863. Courts of record may make rules . 3864. When rules take effect. 3865. Days on which courts, etc., may be held. 3866. Days on which courts shall not be open. 3367. Court appointed, etc., for those days, deemed for next day. Section 3868. Adjournment of court for absence of Judge. 3869. Same. 3870. Judge may, in certain cases, change place of holding court. 3871. Parties to appear at place ap- pointed. 3872. Booms, etc., when Judge may or- der. 3373. What courts have seals. 3874. Seals, by whom kept. 3875. To what procedings to be affixed. Limitations on preceding section. Powers of cour respecting the conduct of judicial proceedings. Section 3860. The sittings of every court of justice sittings public are public, except as provided in the next section. Sec. 3861. In an action for divorce, criminal conversa- tion, seduction, or breach of promise of marriage, the court may direct the trial of any issue of fact joined therein to be private, and may exclude all persons except the officers of the court, the parties, their witnesses, and counsel; Provided, That in any cause the court may, in the exercise of a sound discretion during the examination of a witness, exclude any and all witnesses in the cause. Sec. 3862. Every court has power: 1. To preserve and enforce order in its immediate pres- ence; 2. To enforce order in the proceedings before it or before a person or persons empowered to conduct a judicial investi- gation under its authority; 3. To provide for the orderly conduct of proceedings be- fore it or its officers; 4. To compel obedience to its judgments, orders and pro- cess, and to the orders of a Judge out of court in an action or proceeding pending therein; 5. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner -connected with a judicial proceeding before it, in every mat- ter appertaining thereto; G. To compel the attendance of persons to testify in an action or proceeding pending therein, in the cases and man- ner provided in this code; 7. To administer oaths in an action or proceeding pending therein, and in all other cases where it may be necessary in the exercise of its powers and duties; 8. To amend and control its process and orders, so as to make them conformable to law and justice. 27 417 f /jut f/xf Tit. I. Ch. VI. COURTS OF JUSTICE. }§ 3863-3870 v /^ IT/30 I /33 f> 3j /3f £/f 0 fMY Courts of record may make rules. When rules take effect. Days on which courts, etc., may be held. Days on which courts shall not be opened. Ex«eptionei Court appointed, etc., for those days, deemed for next day. Adjournment of court for absence of judge. Same, Judge may, in certain cases, change place of holding court. Sec. 3863. Every Court of Record may make rules not inconsistent with the laws of this Territory, for its own government and the government of its officers; but such rules must neither impose a tax or charge upon any legal proceeding nor give an allowance to any officer for services. Sec. 3864. The rules adopted by the Supreme Court take effect sixty days, and those adopted by other courts, thirty days after their publication. Sec. 3865. The Courts of Justice may be held and judi- cial business be transacted on any day except as provided in the next section. Sec. 3866. No court can be opened nor can any judicial business be transacted on Sunday, on the first day of Janu- ary, on the fourth day of July, on Christmas or Thanksgiv- ing day, or on a day on which the general election is held, except for the following reasons : 1. To give, upon their request, instructions to a jury when deliberating on their verdict; 2. To receive a verdict or discharge a jury; 3. For the exercise of the powers of a magistrate in a criminal action or in a proceeding of a criminal nature; Pro- vided, That in civil causes orders of arrest may be made and executed; writs of attachments, executions, injunctions and writs of prohibition may be issued and served; proceed- ings to recover possession of personal property may be had; and suits for the purpose of obtaining any such writs and proceedings may be instituted on any day. Sec. 3867. If any of the days mentioned in the last sec- tion happen to be the day appointed for the holding of a court or to which it is adjourned, it is deemed appointed for, or adjourned to the next day. Sec. 3868. If no Judge attend on the day appointed for holding the court, or on the day to which it may have been adjourned, before noon, the Sheriff or Clerk must adjourn the court until the next day at ten o'clock a.m.; and if no Judge attend on that day before noon, the Sheriff or Clerk must adjourn the court until the following day at the same hour, and so on from day to day for one week, unless the Judge by written order directs it to be adjourned to some day certain fixed in said order, in which case it shall be so adjourned. Sec. 3869. If no Judge attend for one week and no written order is made as provided in the last section, the Sheriff or Clerk shall adjourn the session until the time ap- pointed for the holding of the next regular session. Sec. 3870. A Judge authorized to hold or preside at a court appointed to be held in a county, city or town, may, by an order filed with the Clerk and published as he may prescribe, direct that the court be held or continued at any other place in the city, town or county than that appoint- ed, when war, insurrection, pestilence or any other public calamity or the danger thereof, or the destruction or danger of the building appointed for holding the court may render it necessary, and may in the same manner revoke the order, and in his discretion appoint another place in the same city, town or county for holding the court. 418 3871-3875 COUKTS OF JUSTICE. Tit. I. Ch. VI. Sec. 3871. When the court is held at a place appointed as provided in the last section, every person held to appear at the court must appear at the place so appointed. Sec. 3872. If suitable rooms for holding the District Courts and the chambers of the Judges of such courts be not provided in any county by the Commissioners thereof, to- gether with attendants, furniture, fuel, lights and station- ery sufficient for the transaction of business, the court may direct the Sheriff of such county to provide such rooms, at- tendants, furniture, fuel, lights and stationery, and the ex- penses thereof are a charge against such county. Sec. 3873. Each of the following courts has a seal: 1. The Supreme Court; 2. The District Courts; 3. The Probate Courts. Sec. 3874. The Clerk of the Court must keep the seal thereof. Sec. 3875. The seal of the court need not be affixed to any proceeding therein, or document except: 1. To a writ; 2. To the certificate of the probate of a will, or of the ap- pointment of an executor, administrator or guardian; 3. To the authentication of a copy of a record or other proceeding of a court, or of an officer thereof, or of a copy of a document on file in the office of the Clerk. Parties to appear at place appointed. /A/3 Rooms, etc.. when judge may order f /¥■*£ What courts have seals. Seals, by whom kept. Seal of court, to what proceedings affixed. f / v 7 f / j~d 419 Tit. II. Ch.I-II-IIL JUDICIAL OFFICERS.-JUDGES. §§ 3885-3900 TITLE II. OF JUDICIAL OFFICERS. CHAPTER I. Judicial Officers in General. Residence of probate judge and justice. District judges may hold courts in another district. Skction 3885. Places of residence of Judges. Section 3886. District Judges may hold courts in another district. Section 3885. Each Probate Judge shall reside at the county-seat of his county, and every Justice of the Peace shall reside in the precinct in which his court is held. Sec. 3886. A District Judge may hold a court in any county in this Territory upon the request of the Judge of the district in which such court is to be held; and when by rea- son of sickness or absence from the Territory, or from any other cause a court cannot be held in any county in a dis- trict by the Judge thereof, a certificate of that fact must be transmitted by the Clerk to the Governor, who may there- upon direct some other District Judge to hold such court. £ (burets Powers of district judges at chambers. CHAPTER II. Powers of Judges at Chambers. Section 3^90. Powers of Judges at Chambers. Section 3890. District Judges, at Chambers, may grant all orders and writs which are usually granted in the first instance upon ex parte applications, and may, at Chambers, hear and dispose of such writs and of motions for new trials, and try and determine writs of review, mandate and prohibitions, and may hear applications to discharge all such orders and writs. In case of vacancy in the office of any District Judge, or his absence from the Territory, mo- tions may be made before and orders granted by any other District Judge. £ C]0tWV;fled -p When disquali- CHAPTER III. Disqualification of Judges. Section 3900. When disqualified. 3901. Not to act as attorney in his own Court. Section 3902. Certain Judges not to act as at- torneys. 3903. No judicial officer to have a part- ner. Section 3900. A Judge cannot act as such in any of the following cases: 1. In an action or proceeding to which he is a party, or in which he is interested; 2. When he is related to either party by consanguinity or affinity within the third degree, computed according to the rules of law; 3. When he has been attorney or counsel for either party in the action or proceeding. But this section does not apply to the arrangement of the calendar or the regulation of the 420 )§ 3901-3913 INCIDENTAL POWERS AND DUTIES OF. Tit. II. Ch.IV. order of business, nor to the power of transferring the cause to another county. Sec. 3901. A Judge cannot act as attorney or counsel in a court in which he is Judge, or in an action or proceed- ing removed therefrom to another court for trial or review, or in an action or proceeding from which an appeal may lie to his own court. Sec. 3902. A Justice of the Supreme Court, or Judge of certain judges the District Court, cannot act as attorney or counsel in any court, except in an action or proceeding to which he is a party on the record. Sec. 3903. No Judge or other judicial officer, shall have a partner acting as attorney or counsel in any court of this Territory. Not to act as attorney in his own court. not to act as attorneys. No judicial officer to have a partner. jf/7V CHAPTER IV. Incidental Powers and Duties of. Section 3910. Of judicial officers. 3911. General powers of Judges out of court. Section 3912. Powers of judicial officers as to con- duct of proceedings before them. 3913. Same. 3914. Same. Section 3910. A Judge may exercise, out of court, all the powers expressly conferred upon a Judge, as contradis- tinguished from the court. Sec. 3911. Every judicial officer has power: 1. To preserve and enforce order in his immediate pre- sence, and in the proceedings before him, when he is en- gaged in the performance of an official duty; 2. To compel obedience to his lawful orders, as provided in this code; 3. To compel the attendance of persons to testify in a pro- ceeding before him, in the cases and manner provided in this code; 4. To administer oaths to persons in a proceeding pending before him, and in all other cases where it may be necessary, in the exercise of his powers and duties. Sec. 3912. For the effectual exercise of the powers con- ferred by the last section, a judicial officer may punish for contempt, in the cases provided in this code. Sec 3913. The Justices of the Supreme Court, and the Judges of the District Courts, have power in any part of the Territory, and Probate Judges and Justices of the Peace within their respective counties, to take and certify: 1. The proof and acknowledgment of a conveyance of real property or of any other written instrument; 2. The acknowledgment of a satisfaction of a judgment of any court; 3. An affidavit or deposition to be used in this Territory. General powers of judges out of court. Powers of judicial officers as to conduct proceedings before them. f nn Same. Same f nf . f 111 421 Tit. II. Ch. V. COURTS AND JUDICIAL OFFICERS. 3§ 3920-3925 \%^ ?l«3 pis' Subsequent applications for orders , when prohib- ited. Violations of last section. No proceeding affected by a vacancy in office of judge, etc. Proceedings to be in the English language. Abbreviations and figures. Meaus to be used to execute judicial powers an certain cases. CHAPTER V. Miscellaneous Provisions respecting Courts and Judi- cial Officers. Section 35)20. Subsequent applications for orders, when prohibited. 3921. Violations of last section. 35)22. No proceedings affected by a vacan- cy in office of Judge, etc. Section 3923. Proceedings to be in the English language. 3924. Abbreviations and figures. 3925. Means to be used to execute judicial powers in certain cases. Section 3920. If an application for an order, made to a Judge of a court in which the action or proceeding is pend- ing, is refused, in whole or in part, or is granted condition- ally, no subsequent application for the same order can be made to any other Judge, except of a higher court; but noth- ing in this section applies to motions refused for any inform- ality in the papers or proceedings necessary to obtain the order or to motions refused, with liberty to renew the same. Sec. 3921. A violation of the last section may be pun- ished as a contempt, and an order made contrary thereto may be revoked by the Judge who made it, or vacated by a Judge of the court in which the action or proceeding is pending. Sec. 3922. No proceeding in any court of justice in an action or special proceeding pending therein, is affected Jby a vacancy in the office of all or any of the Judges, or by the failure of a term thereof. Sec. 3923. Every written proceeding in a Court of Justice in this Territory shall be in the English language, and judicial porceedings shall be conducted, preserved and published in no other. Sec. 3924. Such abbreviations as are in common use may be used, and numbers may be expressed by figures or numerals, in the customary manner. Sec. 3925. When jurisdiction is, by this code or by any other statute, conferred on a court or judicial officer all the means necessary to carry it into effect are also given; and in the exercise of the jurisdiction if the course of proceedings be not specially pointed out by this code,or the Statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code. 422 8S 3935-3941 OF JURORS. Tit. III. TITLE III. OF JURORS. Section 3935. Jury defined. 3936. Different kind of juries. 3937. Grand jury defined. 3938 . Trial jury defined . 3939. Number of a trial jury. 3940. Jury of inquest defined. 3941 . Who are competent to act as jurors. 3942. Who are not competent to act as j urors . 39-43. Who are exempt 3944. Firemen exempt. 3945. Who may be excused. 3946. Exempt juror may file affidavit. 3947. List of persons to serve as jurors to be made by Commissioners. 3948. How selection shall be made. 394!). List to be placed with Clerk. 3950. Duty of clerk on receiving lists. 3951. Regular jurors to serve one year. 3952. Jury to be drawn upon the order of the Judge. 3953. Clerk to notify County Judge and Sheriff of time of drawing. 3954. Sheriff and Judge to witness draw- ing. 3955 . Drawing, when to be adjourned. 3956. Shall proceed, when. Section 3957. Drawing how conducted. 3958. After adjournment of court, disposi- tion to be made of ballots. 3959. Copy of list to be furnished bv Clerk. 3960. Sheriff to summon jurors, how. 3961. Court may order jury drawn, when. 3962. When jury may be completed from the body of the county, or by- standers. 3963. Jurors for Probate and Justice's Courts, by whom summoned. 3964. How summoned. 3965. Officer's return. 3966. Manner of summoning juries of in- quest. 3967. Obedience to summons, how en- forced. 3968. Grand jury, when to be impaneled. 3969. Grand jury, how constituted. 3970. Jury to be impaneled as prescribed by law. 3971 . Names of trial jurors, how kept. 3972. Trial juries, how impaneled. 3973. Impaneling jury in Justices' Courts. 3974. In criminal cases. 3957. Juries of inquest, how impaneled. f/9 0 Di ferent kinds Of juries. f / It Attorney of Other States aiid Territory, ann'iuU'd. 17/ Tit. IV. ATTORNEYS AND COUNSELORS AT LAW. §§ 3995-4001 ?t°tl!r0ney9. Sec- 3995. Each Clerk must keep a roll of attorneys and counselors admitted to practice by the court of which he is Clerk, which roll must be signed by the person admitted before he receives a license. Pra?ticiufor ^EC> 3996. If any person shall practice law in any wUhoutuficense. court, except a Justice's Court, without having received a license as attorney and counselor, he is guilty of a contempt of court. General duties. Sec. 3997. It is the duty of an attorney and counselor: 1. To support the constitution and laws of the United States and of this Territory; 2. To maintain the respect due to the Courts of Justice and judicial officers; 3. To counsel or maintain such actions, proceedings, or defenses only as appear to him legal or just, except the de- fense of a person charged with a public offense; 4. To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never seek to mislead the Judges by an artifice or false statement of fact or law; 5. To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client; • 6. To abstain from all offensive personality, and to ad- vance 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; 7. Not to encourage either the commencement or the con- tinuance of an action or proceeding from any motive of pas- sion or interest; 8. Never to reject for any consideration personal to him- - self the cause of the defenseless or the oppressed. ^-50 Authority of Sec. 3998. An attorney and counselor has authority: 1. To bind his client in any of the steps of an action or proceeding, by his agreement filed with the Clerk, or entered upon the minutes of the court and not otherwise; 2. To receive money claimed by his client in an action or proceeding during the pendency thereof, or after judgment, unless a revocation of his authority is filed, and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment. p. <>U change of Sec. 3999. The attorney in an action or special pro- attorney, ceeding may be changed at any time before judgment or final determination as follows : 1. Upon his own consent, filed with the Clerk, or entered upon the minutes; 2. Upon the order of the court or Judge thereof, upon the application of the client, after notice to the attorney. Notice of Sec. 4000. When an attorney is changed, as provided change. m the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party: until then, he must recognize the former attorney. Death or Sec. 4001. When an attorney dies, or is removed or aetto?Jty°f suspended, or ceases to act as such, a party to an action for whom he was acting as attorney must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney or to ap- pear in person. 430 5§ 4002-4009 ATTORNEYS AND COUNSELORS AT LAW. Tit. IV. Amended. 1 tV Sec. 4002. An attorney and counselor maybe removed ^?8mj|Jaj0r ^ & 7 or suspended by the Supreme Court and by the District 8U8pen810n- Courts for either of the following causes, arising after his admission to practice : 1. His conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction is conclusive evidence; 2. Willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, and any violation of the oath taken by him or his duties as such attorney and coun- selor; 3. Corruptly and without authority, appearing as attor- ney for a party to an action or proceeding; 4. Lending his name to be used as an attorney and coun- selor by any other person who is not an attorney and coun- selor; 5. Failure for ten days after written demand, and pay- ment or tender of the fees and expenses due him from his client to pay over or deliver any money or other property belonging to his client, which he shall have received in his office of attorney or counselor in the course of collection or settlement of any claim or demand. In all cases where an attorney is removed or suspended by a District Court, the judgment or order of removal or suspension, may be reviewed on appeal, by the Supreme Court. Sec. 4003. In case of the conviction of an attorney or conviction of counselor of a felony, or misdemeanor involving moral tur- moralturpitude: pitude, the Clerk of the Court in which a conviction is had, must, within thirty days thereafter, transmit to the Supreme Court a certified copy of the record of conviction. Sec. 4004. The proceedings to remove or suspend an proceedings attorney and counselor under the first sub-division of sec- J°r '^Jon °r tion 4002, must be taken by the court on the receipt of a certi- fied copy of the record of conviction. The proceedings un- der the second sub-division of section 4002, may be taken by the court for matters within its knowledge, or may betaken upon the information of another. Sec. 4005. If the proceedings are upon the information Accusation, of another, the accusation must be in writing. Sec. 4006. The accusation must state the matters verification, charged, and be verified by the oath of some person to the effect that the charges therein contained are true. Sec 4007. After receiving the accusation the court citation to must, if in its opinion the case requires it, make an order re- an8wer* quiring the accused to appear and answer, the accusation at a specified time in the same or subsequent term, and must cause a copy of the order and of the accusation to be served upon the accused within a prescribed time before the day appointed in the order. Sec. 4008. The accused must appear at the time appoint- Appearance, ed in the order and answer the accusation, unless for suffi- cient cause the court assign another day for that purpose; if he does not appear, the court may proceed and determine the accusation in his absence. Sec. 4009. The accused may answer to the accusation How to answer. either by objecting to sufficiency or denying it. 431 1 *f - f a t- 1 3 1/ Tit. IV. ATTORNEYS AND COUNSELORS AT LAW. *§ 4010-4014 w Demurrer. Answer. Trial. Reference. Judgment. Sec. 4010. If he object to the sufficiency of the accusa- tion, the objection must be in writing, butneednotbeinany specific form, it being sufficient if it presents intelligibly the grounds of the objection. If he deny the accusation, the denial may be oral and without oath, and must be entered upon the minutes. Sec. 401 1. If an objection to the sufficiency of the ac- cusation be not sustained, the accused must answer within such time as may be designated by the court. Sec. 4012. If the accused plead guilty, or refuse to an- swer the accusation, the court must proceed to judgment of removal or suspension. If he deny the matters charged, the court must, at such time as it may appoint, proceed to try the accusation. Sec. 4013. The court may, in its discretion, order a reference to a committee to take depositions in the matter. Sec. 4014. Upon conviction, in cases arising under the first subdivision of section 4002, the judgment of the court must be that the name of the party must be stricken from the roll of attorneys and counselors of the court, and that he be precluded from practicing as such attorney or counsel- or in all the courts of this Territory, and upon conviction in cases under the other subdivisions of that section, the judgment of the court may be according to the gravity of the offense charged — deprivation of the right to practice as an attorney or counselor in the courts of this Territory, permanently, or for a limited period. 432 §§ 4020-4022 OF THE FORM OF CIVIL ACTIONS. Tit. I. PART II.— CIVIL ACTIONS. TITLE I. OF THE FORM OF CIVIL ACTIONS. 8BCTION 4020. One forni of civil action only. 4021. Parties to action, how designated. Section 4022. Special issues not made by plead- ings, how tried. Section 4020. There is in this Territory but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs; Provided, That in all matters not regulated by this code, in which there is any conflict or variance between the rules of equity jurisprudence and the rules of the common law, with reference to the same matter, the rules of equity shall pre- vail. Sec. 4021. In such actions the party complaining is known as the plaintiff, and the adverse party as the defend- ant. Sec. 4022. A question of fact not put in issue by the pleadings may be tried by a jury upon an order for the trial, stating distinctly and plainly the question of fact to be tried; and such order is the only authority necessary for a trial. 28 433 One form of civil action only. Amended. Ooj Parties to actions how designated. Special issues not made by pleadings, how tried. 1°% Vit.ll. Ch.I-IL IN GENERAL.-RECOVERY OF REAL PROPERTY. §§403(H«7 TITLE II. OF THE TIME OF COMMENCING CIVIL ACTIONS. iw Comnienceineut of civil actions. CHAPTER I. In General. Section 4030. Commencement of civil actions. Section 4030. Civil actions can only be commenced within the periods prescribed in this Title, after the cause of action shall have accrued, except when in special cases, a different limitation is prescribed by statute. Ur When the people will not sue. 5i8 ■ilf Seizin within five years, when necessary in action for real property . Such seizin when necessary in action or defense arising out of title to or rent of real property. CHAPTER II. For the Recovery of Real Property. Section 4035. When the people will not sue. Seizin within five years when nec- essary in action for real property. Such seizin when necessary in ac- tion or defense arising out of title to or rents of real property. Entry on real estate. Possession when presumed. Occu- pation deemed under legal title, unless adverse. Occupation under written instru- ment or judgment, when deemed adverse. 4036. 4037. 4038. 4039. 4040. Section 4041. What constitutes adverse posses- sion under written instrument or judgment. 4042. Premises actually occupied under claim of title deemed to be held adversely. 4043. What constitutes adverse possession under claim of title not written. 4044. Relation of landlord and tenant as affecting adverse possession. 4045. Right of possession not affected by descent caste. 4046. Certain disabilities excluded from time to commence actions. Section 4035. The people of this Territory will uot 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 people to the same unless: 1. Such right or title shall have accrued within ten years before any action or other proceeding for the same is com- menced; or 2. The people or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof within the space of ten years. Sec. 4036. No action for the recovery of real property, or for the recovery of the possession thereof, can be main- tained, unless it appear that the plaintiff", his ancestor, pre- decessor or grantor, was seized or possessed of the property in question within five years before the commencement of the action; and this section includes possessory rights to lands and mining claims. Sec. 4037. No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual unless it appears that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor, of such per- son was seized or possessed of the premises in question with- in five years before the commencement of the act in respect to which such action is prosecuted or defense made. 434 §§403tM043 FOR THE RECOVERY OF REAL PROPERTY. Tit. II. Ch. II. Sec. 4038. No entry upon real estate is deemed suffi- cient or valid as a claim, unless an action be commenced thereupon within one year after making such entry, and within five years of the time when the right to make it de- scended or accrued. Sec. 4039. In every action for the recovery of real prop- erty, or the possession thereof, a person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by another person is deemed to have been under and in subordination to the legal title, unless it ap- pear that the property has been held and possessed ad- versely to such legal title, for five years before the com- mencement of the action. Sec. 4040. When it appears that the occupant, or those under whom he claims, entered into the possession of the property under claim of title, exclusive of other right, found- ing such claim upon a written instrument, as being a con- veyance of the property in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the property in- cluded in such instrument, decree or judgment, or of some part of the property under such claim, for five years, the property so included is deemed to have been held adversely except that when it consists of a tract divided into lots, the possession of one lot, is not deemed a possession of any other lot of the same tract. Sec. 4041. For the purpose of constituting an adverse possession by a person claiming a title founded upon a writ- ten instrument, or a judgment or decree, land is 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 inclos- ure; 3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of hus- bandry, or for pasturage, or for the ordinary use of the oc- cupant; 4. Where a known farm or single lot has been partly im- proved, 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 adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated. Sec. 4042. Where it appears that there has been an ac- tual continued occupation of land, under a claim of title, ex- clusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occu- pied, and no other, is deemed to have been held adversely. Sec. 4043. For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial inclos- ure; 2. Where it has been usually cultivated or improved. Provided, hoivever, That in no case shall adverse posses- 435 Entry ou real estate. 3l o Possession when presumed . Occupation deemed under title, unless adverse. Occupation under written instrument or judgment, when deemed adverse. 3x 3xz^ 1*>-X, What consti- tutes adverse possession undt r written instru- ment or judgment. 3a4 Premises actually occu- pied under claim of title deemed to be held adverse!) What consti- tutes adverse possession under claim ol title not wrute t nv ju' Tit. II. Ch.IlI. RECOVERY OF PROPERTY OTHER THAN REAL. &U044-4050 3 tb Relation of landlord and tenant as af- fecting adverse possession. i^7 3T-Z Right of posses- sion not affected by descent caste. Certain dis- abilities ex- cluded from time to com- mence actions. sion be considered established under the provisions of any sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, territorial, county, or municipal, which have been levied and assessed upon such land according to law. Sec. 4044. When the relation of landlord and tenant has existed between any persons, the possession of the ten- ant is deemed the possession of the landlord until the ex- piration of five years from the termination of the tenancy, or, where there has been no written lease, until the expira- tion of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired an- other title, or may have claimed to hold adversely to his landlord. But such presumptions cannot be made after the periods herein limited. Sec. 4045. The right of a person to the possession of real property is not impaired or affected by a descent caste in consequence of the death of a person in possession of such property. Sec. 4046. If a person entitled to commence an action for the recovery of real property, or for the recovery of the possession thereof, or to make any entry or defense founded on the title to real property, or to rents or services out of the same, be at the time such title first descends oi accrues, either: 1. Within the age of majority; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution, upon conviction of a criminal offense, for a term less than for life; or, 4. A married woman, and her husband be a necessary party with her in commencing such action or making such entry or defense; The term during which such disability continues is not deemed any portion of the time in this title limited for the commencement of such action or the making of such entry or defense, but such action may be commenced, or entry or defense made, within the period of five years after such dis- ability 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. Sit Periods of limitations prescribed. CHAPTER III. For the Recovery of Property Other Than Real. Section 4030. Periods of limitation prescribed. 4051. Within six years. 4052 . Within five years. 4053. Within four years . 4054 . Within three years. 1055 . Within two years. 4056. Within one year. 1057. Within six months. 4058. Where cause of action accrues on mutual account. Section 4059. Action for a deposit. 4060. Actions for relief not hereinbefore provided for. 4061 . Actions by the people subject to the {imitations of this Title. 4062. Action to redeem a mortgage with- out account of rents and profits. 4063. Same, when there are two or more such mortgages. Section 4050. The periods prescribed for the com- mencement of actions other than for the recovery of real property, are as follows: §§4051-4057 RECOVERY OF PROPERTY OTHER THAN REAL. Tit.IL Ch. III. Sec 4051. Within six 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 for mesne profits of real property. Sec. 4052. Within five years: An action upon any contract, obligation, or liability founded upon an instrument in writing. Sec. 4053. Within four years: An action upon a contract, obligation, or liability, not founded upon an instrument of writing. Sec. 4054. Within three years: 1. An action upon a liability created by statute, other years than a penalty or forfeiture; 2. An action for trespass upon real property; 3. An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property; 4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. Sec 4055. Within two* years: 1. An action against a Sheriff, Coroner, or Constable, up- on the 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; 2. An action upon a statute for a penalty or forfeiture, where the action is given to an individual, or to an indi- vidual and the Territory, except where the statute imposing- it prescribes a different limitation; 3. An action upon a statute or upon an undertaking in a criminal action for a forfeiture or penalty to a county or to the people of the Territory; 4. An action to recover damages for the death of one caused by the wrongful act of another; 5. An action for libel, slander, assault, battery, false imprisonment or seduction; 6. An action against a Sheriff or othor officer, for the es- cape of a prisoner arrested or imprisoned on civil process. Sec. 4056. Within one year: An action against an officer or officer de facto: 1. To recover any goods, wares, merchandise, or other property seized by any such officer in his official capacity as tax collector, or to recover the price or value of any goods, wares, merchandise or other personal property so seized, or for damages for the seizure, detention, sale of or injury to, any goods, wares, merchandise, or other personal property seized, or for damages done to any person or property in making any such seizure; 2. For money paid to any such officer under protest, or seized by such officer in his official capacity as a collector of taxes, and which, it is claimed, ought to be refunded. Sec 4057. Actions on claims against a county which have been rejected by the Board of Commissioners, must be commenced within six months after the first rejection there- of by such Board. 437 Within six yeare. Within five years. Within four years. j 3 & yiolc Within three Within two yeare. J 3 ^ *Vl o U 3*40 Within one year. JY/ Ho a Witbin six months. Tit. II Ch. IV GENERAL PROVISIONS. §£ 4058-4069 /¥order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, 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. Sec. 4110. Whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. The order of substitution may be made, and the action of interpleader may be main- tained, and the applicant or plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one an- other. Sec. 4111. 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 of the parties, or an in- terest 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 any thing adversely to both the plaintiff and the defendant, and is made by complaint, set- ting forth the grounds upon 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, who may answer or demur to it as if it were an original complaint. Sec. 4112. When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; a?id the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been named defendants and had been sued, upon their joint liability. Sec. 4113. The court may determine any controversy between parties before it, when it can be done without prej- udice to the rights of others, 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 then order them to be brought in, and thereupon the party, directed by the court, must cause to be served a copy of the summons in the action, and the order aforesaid, in like man- ner as provided for the service of the summons, upon each of the parties ordered to be brought in, who shall have ten pays or such time as the court may order, after service in which to appear and plead; and in case such party fail to adpear and plead within the time aforesaid, the court may 444 §4113 OF THE PARTIES TO CIVIL ACTIONS. Tit III. cause his default to be entered and proceed as in other cases of default, or make such other order as the condition of the action and justice shall require, and when, in an action for the recovery of real or personal property, a person not a par- ty to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. 445 Tit IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. §§ 4120-4123 TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. i^ Certain actions to be fried where the subject or some part thereof is situ- ated . Jn Other actions where the cause or some part thereof arose. i<*/l /!? fice of the clerk from which it issued. When it is served K by any other person, it must be returned to the same place, with an affidavit of such person of its service, and of the /5W,c^o/at ^> service of a copy of the complaint, when such copy is served. Sec. 4144. The summons must be served by delivering summons, upon a copy thereof, as follows: whom 8evved- 1. If the suit is against a corporation formed under the laws of this Territory to the president or other head of the corporation, secretary, cashier, or managing agent thereof; 2. If the suit is against a foreign corporation, or a non- resident joint stock company or association, doing business and having a managing or business agent, cashier or secre- tary within this Territory to such agent, cashier, or secre- tary, or to any station, ticket or other agent of such cor- poration transacting business thereof in the county where the action is commenced, and if there is no such agent in said county, then service may be had upon any such agent in any other county; 3. If against a minor under the age of fourteen years re- siding within this Territory; to such minor, personally, and also to his father, mother, or guardian; or if there be none within this Territory, then to any person having the care or control of such minor, or with whom he resides or in whose service he is employed; 4. If against a person residing within this Territory who has been judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian lias been appointed; to such person and also to his guardian; 5. If against a county, city or town; to the cl urn-man of the Board of Commissioners, president of the council, or trust* or other head of the legislative department thereof; 6. In all other cases to the defendant personally. 29 449 Tit. V. OF THE MANNER OF COMMENCING CIVIL ACTIONS. 4145-4149 from the Ter- ritory, con- cealed, or a foreign corpora- tion, having no agent, etc. /J(\a< dyid^ UvhtA t />«f^3Jff % Service bv whenictbtei°dne- ^ec. 4145. When the person on whom the service is to iff} fendant is absent be made resides out of the Territory, or has departed from the Territory, or cannot, after due diligence, be found with- in the Territory, or conceals himself to avoid the service of summons, or is a foreign corporation having no managing or business agent, cashier, or secretary within the Territory, and the fact appears by affidavit to the satisfaction of the court or a judge thereof, or a Probate Judge, and it also appears by such affidavit, or by the verified complaint on file that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or Judge may make an order that the service be made by the publi- cation of the summons. Sec. 4146. The order must direct the publication to be publication how made in a newspaper to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; but publication against a defendant residing out of the Ter- ritory or absent therefrom, must not be less than one month. In case of publication, where the residence of a non-resident or absent defendant is known, the court or judge must di- rect a copy of the summons and complaint to be forthwith deposited in the postoffice, directed to the person to be served at his place of residence. When publication is or- dered, personal service of a copy of the summon? and com- plaint out of the Territory, is equivalent to publication and deposit in the postoffice; and in either case the service of the summons is complete at the expiration of the time pre- scribed by the order for publication. Sec. 4147. When the action is against two or more de- fendants jointly or severally liable on a contract and the summons is served on one or more but not on all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants. Proof of service, Sec. 4148. Proof of the service of summons and com- J t* Ce,£. how made- plaint must be as follows : Proceedings when there are several de- fendants and part only are served. /?< Jurisdiction, when acquired - appearances. 4. The written admission of the defendant. In case of service otherwise than by publication, the certificate or af- fidavit must state the time and place of service. Sec. 4149. From the time of the service of the sum- mons and of a copy of a complaint in a civil action, where service of a copy of the complaint is required, or of the com- pletion of the publication, when service by publication is ordered, the court is deemed to have acquired jurisdiction of the parties and to have control of all the subsequent proceed- ings. The voluntary appearance of a defendant is equiva- lent to personal service of the summons and copy of the complaint upon him. 450 4160-4169 IN GENERAL.— THE COMPLAINT. Tit. VI. Ch.I-IL TITLE VI. OF THE PLEADINGS IN CIVIL ACTIONS. CHAPTER I. In General. Section 4162. What pleadings are allowed. Section 4160. Definition of pleadings. 4161. This code prescribes the form and rules of pleadings. Section 4160. The pleadings are the formal allega- tions by the parties of their respective claims and defenses, for the judgment of the court. Sec. 4161. The forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed in this code. Sec. 4162. The only pleadings allowed on the part of the plaintiff are : 1. The complaint; 2. The demurrer to the answer; And on the part of the defendant : 1. The demurrer to the complaint; 2. The answer. Definition of pleadings . This code prescribes the form and rules of pleadings . What pleadings are allowed. CHAPTER II. The Complaint. Section 4167. Complaint, first pleading. 4168. Complaint, what to contain. Section 4169. What causes of action may be joined. Section 4167. The first pleading on the part of the complaint first plaintiff is the complaint. Sec. 4168. The complaint must contain: 1. The title of the action, the name of the court and county in which the action is brought, and the names of the parties to the action; 2. A statement of the facts constituting the cause of ac- tion, in ordinary and concise language; 3. A demand of the relief which the plaintiff claims; if the recovery of money or damages be demanded, the amount thereof must be stated. Sec. 4169. The plaintiff may unite several causes of ac- tion in the same complaint, where they all arise out of: 1. Contracts, express or implied; 2. Claims to recover specific real property, with or with- out damages for the withholding thereof, or for waste com- mitted thereon, and the rents and profits of the same; 3. Claims to recover specific personal property, with or without damages for the withholding thereof; 4. Claims against a trustee by virtue of a contract, or by operation of law; o. Injuries to character; 6. Injuries to person; 7. Injuries to property. 451 pleading. Complaint, what to contair. V'x^ (/iC What causes of action may be joined. w; Tit. VI. Ch. III. DEMURRER TO THE COMPLAINT. §§ 4174-4178 The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action and not require different places of trial, and must be sepa- rately stated; but an action for malicious arrest and prose- cution, or either of them, may be united with an action for either an injury to the character or to the person. CHAPTER III. Demurrer to the Complaint. Section 4174. When defendant may demur. 4175. Demurrer must specify, etc. May be taken to part. May answer and demur at the same time. Section 41 70. What proceedings are to be had when complaint is amended. 4177. Objection not appearing on com- plaint, may be taken by answer. 4178. Objections, when deemed waived. When defendant may demur. £o£Uf / C/3 f Demurrer must specify, etc. to v^ V^o c/3 j 3. That there is another action pending between the y , same parties for the same cause; or, 4. That there is a defect or misjoinder of parties, plain- / tiff or defendant; or, Lf-C 5. That several causes of action have been improperly / united; or, r 3ft " p */Y¥ 6. That the complaint does not state facts sufficient to constitute a cause of action ; or, VvT/ 7. That the complaint is ambiguous, unintelligible or un- certain. Sec. 4175. The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so it may be disregarded. It may be taken to the whole complaint or to any of the causes of action stated therein, or the defendant may demur and an- swer at the same time. Sec. 4176. If the complaint is amended, a copy of the amendments must be filed, or the court may, in its discretion, require the complaint, as amended, to be filed; and a copy of the amendments or amended complaint, must be served upon the defendants affected thereby. The defendant must answer the amendment or the complaint as amended, with- in ten days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. Sec. 4177. When any of the matters enumerated in section 4174 do not appear upon the face of the complaint, the objection may be taken by answer. Sec. 4178. If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. May be taken part, may answer and demur at same time. What proceed- ings are to be had when complaint is amended. Objection not appearing on complaint, may be taken by answer. Objections, when deemed waived. 452 S§ 4183-4188 THE ANSWER. Tit. VI. Ch. IV CHAPTER IV. The Answer. Section 4183. Answer, what to contain. 4184. When counter claim may be set up. 4185. When defendant omits to set up counter claim. 41 8G. Counter claim not barred by death or assignment. Section 4187. Answer 4188. may contain several grounds of defense. Defendant may answer part and demur to part of complaint. Cross-complaint. Section 4183. The answer of the defendant shall con- tain: * 1. A general or specific denial of the material allegations of the complaint controverted by the defendant; 2. A statement of any new matter constituting a defense or counter claim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his an- swer, and place his denial on that ground. If the complaint be not verified a general denial is sufficient, but only puts in issue the material allegations of the complaint. Sec. 4184. 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 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 upon contract; any other cause of action arising also upon contract and existing at the com- mencement of the action. Sec. 4185. If the defendant omit to set up a counter claim in the cases mentioned in the first subdivision of the last section, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor. Sec. 4186. When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counter claim could have been set up, the two demands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof by the assignment or death of the other. Sec. 4187. The defendant may set forth by answer as many defenses and counter claims as he may have. They must be separately stated, and the several defenses must re- fer to the causes of action which they are intended to an- swer, in a manner by which they may be intelligibly distin- guished. The defendant may also answer one or more of the several causes of action stated in the complaint and de- mur to the residue. Sec. 4188. Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by per- 453 Answer, what to contain. V3) When counter claim to be set up. yj P When defendant omits to set up counter claim. Cross demands deemed compensated. kZ J? V V Answer may contain several) grounds of defense. w Defendant may answer part and demur to part of com- plaint. Tit VI. Ch.V-VI. DEMURRER TO THE ANSWER.-VERIFICATION. SS 4193-4200 Cross-com- plaint. mission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint. CHAPTER V. Demurrer to the Answer. Section 4193. When plaintiff may demur to an- swer. Section 4194. Grounds of demurrer. IjV^ Demurrer to answer. V /VV •Grounds of demurrer. f ^ £* Ixc S V^iTl j> i g Section 4193. The plaintiff -may, within the same length of time after service of the answer as the defendant is allowed to answer after service of summons, demur to the answer of the defendant, or to one or more of the sev- eral defenses or counter claims set up in the answer. Sec. 4194. The demurrer may be taken upon one or more of the following grounds : 1. That several causes of counter claim have been im- properly joined; 2. That the answer does not state facts sufficient to con- stitute a defense or counter claim; 3. That the answer is ambiguous, unintelligible or un- certain. CHAPTER VI. Verification of Pleadings. Section 4199. Verification of pleadings. 4200. Copy of written instrument con- tained in complaint admitted, un- less answer is verified. sj^(, Verification of pleadings. Amended. W Copy of written instrument contained in complaint ad- mitted, unless answer is verified. Section 4201. When defense is founded on written instrument set out in answer, its execution admitted, unless denied by plaintiff under oath. 4202. Exceptions to rules, prescribed by two preceding sections. Section 4199. Every pleading must be subscribed by the party or his attorney; and when the complaint is veri- fied, or when the Territory, or any officer of the Territory, in his official capacity, is plaintiff, the answer must be veri- fied unless an admission of the truth of the complaint might subject the party to a criminal prosecution, or unless an officer of the Territory, in his official capacity, is defend- ant. In all cases of a verification of a pleading, the affida- vit of the party must state that the same is true of his own knowledge, except as to the matters which are therein stated to be on his information or belief, and as to those matters, that he believes it to be true; and where a pleading is verified, it must be by the affidavit of a party, unless the parties are absent from the county where the attorney re- sides, or from some cause unable to verify it, or the facts are within the knowledge of his attorney, or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When a corporation is a party, the verification may be made by any officer thereof. Sec. 4200. When an action is brought upon a written instrument, and the complaint contains a copy of such in- strument, or a copy is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, un- less the answer denying the same be verified. 454 §§ 4201-4212 GENERAL RULES OF PLEADING. Tit. VI. Ch. VII. Sec. 4201. When the defense to an action is founded ^e8t JumTnTb of on written instrument, and a copy thereof is contained in the Sntroverted™ answer, or is annexed thereto, the genuineness and due ex- ecution of such instrument are deemed admitted, unless the plaintiff file with the Clerk, within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant. Sec. 4202. But the execution of the instruments men- Exceptions to tioned in the two preceding sections, is not deemed admitted b^tw^prece?-^ by a failure to deny the same under oath, if the party de- ing sections. siring to controvert the same, is, upon demand, refused an inspection of the original. Such demand must be in writ- ing, served by copy, upon the adverse party or his attor- ney, and filed with the papers in the case. T V^f CHAPTER VII. General Rules of Pleading. Skction 4207. Pleadings to be liberally construed. Sham and irrelevant answers, etc. , may be stricken out. How to state an account in plead- ings. Description of real property in a pleading. Judgments, how pleaded. Conditions precedent, how to be pleaded. Statute of limitations, how pleaded. Private statutes, how pleaded. 4208. 4209. 4210. 4211. 4212. 4213. 4214. Section 4215. Libel 4216. 4217. 4218. 4219. 4220. and slander, how stated in complaint. Not necessary to al- lege or prove special damages. Answer in such cases. Allegations not denied ; when to be deemed true ; when to be deemed controverted. A material allegation defined. Supplemental complaint and answer. Pleadings subsequent to complaint, must be filed and served. Section 4207. In the construction of a pleading for the purpose of determining its effect, its allegations must be liberally construed with a view to substantial justice be- tween the parties. Sec. 4208. Sham and irrelevant answers, and irrele- vant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may in its dis- cretion, impose. Sec. 4209. It is not necessary for a party to set forth in pleading the items of an account therein alleged, but he must deliver to the adverse party within ten days after a demand thereof in writing, a copy of the account, or be pre- cluded from giving evidence thereof. The court or a Judge thereof, may order a further account when the one deliv- ered is too general or is defective in any particular. Sec. 42 1 0. In an action for the recovery of real proper- ty, it must be described in the complaint with such certain- ty as to enable an officer, upon execution, to identify it. Sec. 421 1. In pleading a judgment or other determina- tion of a court, officer or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or de- termination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction. Sec. 4212. In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading must establish on the trial the facts showing such perform- ance. 455 Pleadings to be liberally con- strued. VcTL^ Sham and f\ irrelevant V«?ti» I ^^ answers, etc., may be stricken / , /,^ ,p ^1 How to state an account in pleadings. y«A v Description of real property in a pleading. Judgments, how pleaded. v/j « / ( Condition pre- cedent, how to be pleaded. / Tit. VI. Ch. VIII. VARIANCE, MISTAKES AND AMENDMENTS. §§ 4213-4225 U-<*\ tatSon?.howmi" Sec- 4213. In pleading the statute of limitations it is pleaded. not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the code of civil procedure; and if such allegation be controverted, the party pleading must establish on the trial the facts showing that the cause of action is so barred. Private statute, Sec. 4214. In pleading a private statute or a right de- how pleaded. rived therefrom, it is sufficient to refer to such statute by its title and the day of its passage. 1/ < Libei and sian- Sec. 4215. In an action for libel or slander, it is not incompiatot.6 necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action Not necessary arose; but it is sufficient to state, generally, that the same proveefpedai was published or spoken concerning the plaintiff; and if damages. such allegation be controverted, the plaintiff must estab- lish on the trial that it was so published or spoken. Answer in such Sec. 4216. 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 cir- cumstances to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances. Allegations not Sec. 4217. Every material allegation of the complaint bedleemldtruel n°t controverted by the answer, must, for the purposes of wil™i,?be * the action, be taken as true; the statement of any new mat- deemed contro- , ,, ' . .,' ... ,. J -, » verted. ter in the answer, in avoidance or constituting a defense or counter claim, must, on the trial, be deemed controverted by the opposite party. a material Sec. 4218. A material allegation in a pleading is one defined.011 essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient. supplemental Sec. 4219. The plaintiff and defendant, respectively answer!Dt and may be allowed, on motion, to make a supplemental com- plaint or answer, alleging facts material to the case occur- ing after the former complaint or answer. Pleadings to Sec. 4220. All pleadings subsequent to the complaint served! an must be filed with the Clerk, and copies thereof served upon the adverse party, or his attorney. CHAPTER VIII. Variance, Mistakes and Amendments. Section 4229. Amendments by the court, enlarg- ing time to plead and relieving from judgments, etc. 4230. Suing a party by a fictitious name, when allowed 4231. No error or defect to be regarded unless it affects substantial rights. % yj variance, when Section 4225. ISTo variance between the allegation in a material. pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. When- ever it appears that the party has been so misled, the court may order the pleading to be amended, upon such terms as may be just. 456 Section 4225. Material variance, how provided for. 4220. Immaterial variance, how provided for. 4227. What not to be deemed a variance. 4228. Amendments of course, and effect of demurrer. g§ 4226-4229 VARIANCE, MISTAKES AND AMENDMENTS. Tit. VI. Ch. VIII. Sec. 4226. Where the variance is not material, as pro- vided in the last section, the court may direct the fact to be found according to the evidence, or may order an immedi- ate amendment, without costs. Sec. 4227. Where, however, the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of vari- ance, within the last two sections, but a failure of proof. Sec. 4228. Any pleading may be amended once by the party of course, and without costs, at any time before an- swer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended, and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading. A demurrer is not waived by fil- ing an answer at the same time; and when the demurrer to complaint is overruled and there is no answer filed, the court may, upon such terms as may be just, allow an an- swer to be filed. If a demurrer to the answer be overruled, the facts alleged in the answer must be considered as de- nied, to the extent mentioned in section 4217. Sec. 4229. The court may, in furtherance of justice and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow upon such terms as may be just, an amend- ment to any pleading or proceeding in other particulars and may, upon like terms, allow an answer to be made after the time limited by this code, and also relieve a party, or his le- gal representative from a judgment, order, or other proceed- ing taken against him through his mistake, inadvertence, surprise, or excusable neglect; and whenever, for any rea- son satisfactory to the court or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order, or proceeding com- plained of was taken, the court, or the judge thereof in vaca- tion may grant the relief upon application made within a reasonable time, not exceeding six months after the adjourn- ment of the term. When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such de- fendant, or his legal representative at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action. When in an ac- tion to recover the possession of personal property, the per- son making any affidavit did not truly state the value of the property and the officer taking the property or the sure- ties on any bond or undertaking, is sued for taking the same, the officer or sureties may, in their answer, set up the true value of the property, and that the person in whose behalf said affidavit was made, was entitled to the possession of the same when said affidavit was made or that the value in the affidavit stated was inserted by mistake, the court shall disregard the value as stated in the affidavit and give judg- 457 Immaterial variance how provided for. What not to be deemed a variance. Amendments of couree and effect of demurrer. V / r "*?> V/i. Amendments on terms. y > J> Discretion and' power of court. Affidavit, may be disreqarde d. Tit. VI. Oh. Vlir. VARIANCE, MISTAKES AND AMENDMENTS, gg 4230-4231 Yi V/ V 1* merit according to the right of possession of said property at the time the affidavit was made. Sec. 4230. When the plaintiff is ignorant of the name of a defendant, he must state that fact in the cpmplaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discov- ered, the pleading or proceeding must be amended accord- ingly. Sec. 4231. The court must, in every stage of an action, disregard any error or defect in the pleadings or proceed- ings which does not affect the substantial rights of the par- ties and no judgment shall be reserved or affected by reason of such error or defect. Suing a party by a fictitious name, when allowed. No error or defect to be regarded unless it affects sub- stantial rights. t/v -LA^O^Z o\j 458 §§ 4240-4241 AKREST AND BAIL. Tit. VII. Ch.I. TITLE VII. OF THE PROVISIONAL REMEDIES IN CIVIL AC- TIONS. CHAPTER I. Arrest and Bail. Section 4240. No person to be arrested except as prescribed by tbis code. Cases in which defendant may be arrested. Order for arrest, by whom made. Affidavit to obtain order, what to contain. Security by plaintiff before order of arrest. Order, when made, and its form. Affidavit and order to be delivered to the Sheriff, and copy to de- fendant. Arrest, how made. Defendant to be discharged on bail or deposit. Bail, how given. Surrender of defendant. Same. Bail, how proceeded against. Bail, how exonerated. 4241. 4242. 4243. 4244. 4245. 4246. 4247. 4248. 4249. 4250. 4251. 4252. 4253. Section 4254. Delivery of undertaking to plaintiff and its acceptance or rejection by him. 4255. Notice of justification. New under- taking of other bail. 4256. Qualification of bail. 4257. Justification of bail. 4258. Allowance of bail. 4259. Deposit of money with Sheriff. 4260. Payment of money into court by Sheriff. 4261. Substituting bail for deposit. 4262. Money deposited, how applied or disposed of. 4263. Sheriff, when liable as bail, and his discharge from liability. 4264. Proceedings on judgment against Sheriff. 4265. Motion to vacate order of arrest, or reduce bail . Affidavits on motion. 4266. When the order vacated or bail re- duced. Section 4240. No person can be arrested in a civil ac- tion, except as prescribed in this code. Sec. 4241. The defendant may be arrested as hereinaf- ter prescribed, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon a contract express or implied where the defendant is about to depart from the Territory with intent to defraud his creditors, or when the action is for willful injury to person, to character, or to property, knowing the property to belong to another; 2. In an action for a fine or penalty, or on a promise to marry, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such or by any other person in a fiduciary capacity; or for miscon- duct or neglect in office or in a professional employment or for a willful violation of duty; 3. In an action to recover the possession of personal prop- erty unjustly detained when the property, or any part there- of, has been concealed, removed, or disposed of to prevent its being found or taken by the Sheriff; 4. When the defendant has been guilty of a fraud in con- tracting the debt or incurring the obligation for which the action is brought; or in concealing or disposing of the prop- erty for the taking, detention, or conversion of which the action is brought; 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to' defraud his creditors. 459 No person to be arrested except as prescribed by this code. Defendant when subject to arrest. Tit. VII. Ch. I. ARREST AND BAIL. §§ 4242-4251 >*% l\ uiiV •^3 ■f u <4 Order for arrest bv whom made. Affidavit for order of arrest requisite. Undertaking required of plaintiff. Order when made, and its form. Affidavit and order to be delivered to the sheriff, aud copy to defendant. Arrest, how made. Defendant to be discharged on bail or deposit. Bail, how given. Surrender of defendant. Surrender of defendant. Sec. 4242. An order for the arrest of the defendant must be obtained from a Judge of the court in which the ac- tion is brought or from a Probate Judge. Sec. 4243. The order may be made whenever it appears to the Judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 4241. The affida- vit 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 with the Clerk of the Court. Sec. 4244. Before making the order, the Judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the Judge, which must be at least five hundred dollars, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertak- ing. The undertaking must be filed with the Clerk of the Court. Sec. 4245. The order may be made at the time of the issuing of the summons, or at any time afterwards before judgment. It must 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 to return the order at a time therein mentioned, to the Clerk of the Court in which the action is pending. Sec. 4246. The order of arrest, with a copy of the affi- davit upon which it is made, must be delivered to the Sheriff, who, upon arresting the defendant, must deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. Sec. 4247. The Sheriff must execute the order by ar- resting the defendant and keeping him in custody until dis- charged by law. Sec. 4248. The defendant, at any time before execution, must be discharged from the arrest, either upon giving bail or depositing the amount mentioned in the order of ar- rest. Sec. 4249. The defendant may give bail by causing a written undertaking to be executed by two or more sufficient sureties, to the effect that they are bound in the amount mentioned in the order of arrest that the defendant will at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action. Sec. 4250. At any time before judgment or within ten days thereafter, the bail may surrender the defendant in their exoneration, or he may surrender himself to the Sheriff of the county where he was arrested. Sec. 4251. For the purpose of surrendering the defend- ant, the bail, at any time or place before they are finally charged, may themselves arrest, or, by a written authority indorsed on a certified copy of the undertaking, may em- 460 §§ 4252-4258 AEREST AND BAIL. Tit. VII. Ch. L power the Sheriff to do so. Upon the arrest of defendant by the Sheriff, or upon his delivery to the Sheriff by the bail, or upon his own surrender, the bail are exonerated, if such arrest, delivery, or surrender take place before the ex- piration of ten days after judgment; but if such arrest, de- livery, or surrender be not made within ten days after judg- ment, the bail are finally charged on their undertaking, and bound to pay the amount of the judgment within ten days thereafter. Sec. 4252. If the bail neglect or refuse to pay the judg- ment within ten days after they are finally charged, an ac- tion may be commenced against such bail for the amount of the original judgment. Sec. 4253. The bail are exonerated by the death of the defendant or his imprisonment in the Territorial prison, or by his legal discharge from the obligation to render himself amenable to the process. Sec. 4254. Within the time limited for that purpose, the Sheriff must file the order of arrest in the office of the Clerk of the Court in which the action is pending, with his return indorsed thereon; together with a copy of the under- taking of the bail. The original undertaking he must retain in his possession until filed, as herein provided. The plain- tiff within ten days thereafter, may serve upon the Sheriff a notice that he does not accept the bail, or he is deemed to [have] accepted them, and the Sheriff is exonerated from lia- bility. If no notice be served within ten days, the original undertaking must be filed with the Clerk of the Court. Sec. 4255. Within five days after the receipt of notice, the Sheriff or defendant may give the plaintiff or his attor- ney, notice of the justification of the same, or other bail (specifying the places of residence and occupation of the latter), before the Judge of a^Gourt or Probate Judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter, except by consent of parties. In case other bail be given there must be a new undertaking. Sec. 4256. The qualifications of bail are as follows: 1. Each of them must be resident and householder or freeholder within the Territory; 2. Each must be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this chapter, over and above all his liabilities, exclusive of property exempt from execution; but the Judge on justification, may allow more than two sureties to justi- fy severally in amounts less than that expressed in the or- der, if the whole justification be equivalent to that of two sufficient bail. Sec. 4257. For the purpose of justification each of the bail must attend before the Judge 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 manner as the Judge in his discretion, may think proper. The examination must be reduced to writing and subscribed by the bail, if required by the plaintiff. Sec. 4258. If the Judge find the bail sufficient, he must annex the examination to the undertaking, indorse his al- 461 Bail, how pro- ceeded against. Bail, bow exonerated. Delivery of undertaking to plaintiff, and its acceptance or rejection by him. W/o v ?/ V ?v V ?J Notice of justi- fication. New undertak- ing of other bail. Qualifications of bail. K/?^ Justification of bail. Allowance of bail. Ttt. VII. Ch. I ARREST AND BAIL. 4259-4266 I Vfj v/Vtf f°l Deposit of money with sheriff. Payment of money into court by sheriff. Substituting bail for deposit. Money depos- ited, how ap- plied or disposed of. ^ $c lowance thereon, and cause them to be filed, and the Sheriff is thereupon exonerated from liability. Sec. 4259. The defendant may at the time of his arrest, instead of giving bail, deposit with the Sheriff the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this chapter, the defendant may de- posit such amount instead of giving bail. In either case the Sheriff must give the defendant a certificate of the de- posit made, and the defendant must be discharged from custody. Sec. 4260. The Sheriff must, immediately after the de- posit, pay the same into court and take from the Clerk re- ceiving the same, two certificates of such payment, the one of which he shall deliver to the plaintiff's attorney and the other to the defendant. 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. Sec. 4261. If money is deposited, as provided in the two last sections, bail may be given and may justify upon notice, at any time before judgment; and on the filing of the undertaking and justification with the clerk, the money deposited must be refunded to the defendant. Sec. 4262. Where money has been deposited, if it re- mains on deposit at the time of the recovery of a judgment in favor of the plaintiff, the Clerk must, under the direction of the Court, apply the same in satisfaction thereof; and af- ter satisfying the judgment, refund the surplus, if any, to the defendant. If the judgment is in favor of the defend- ant, the Clerk must, under like direction of the Court, re- fund to him the whole sum deposited and remaining unap- plied. Sec. 4263. If, after being arrested, the defendant es- cape or is rescued, the Sheriff is liable as bail; but he may discharge himself from such liability by the giving bail at any time before judgment. Sec. 4264. If a judgment is recovered against the Sher- iff upon his liability as bail, and an execution thereon is re- turned unsatisfied in whole or in part, the same proceedings may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency. Sec. 4265. A defendant arrested may, at any time be- fore the trial of the action, or if there be no trial, before the entry of judgment, apply to the Judge of the court in which the action is pending, or to the court, upon reasonable no- tice, to vacate the order of arrest or to reduce the amount of bail. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other proofs, in addition to those on which the order of arrest was made. Sec. 4266. If, upon application, it appears that there was not sufficient cause for the arrest, the order must be vacated; or if it appears that the bail was fixed too high, the amount must be reduced. Sheriff when liable as bail, and his dis- charge from liability. Proceedings on C^O *\/ J udgment against sheriff. Motion to vacate order of arrest or reduce bail. Contest of motion. When the order vacated or bail reduced. 462 §§ 4271-4275 DELIVERY OF PERSONAL PROPERTY. Tit. 711. Ch. II. CHAPTER II. Claim and Delivery of Personal Property. ( ^UotU JyiolfaMf Section 4271. Delivery of personal property, when it may be claimed. Affidavit and its requisites. Requisition to Sheriff to take and deliver the property. Security on the part of plaintiff, and proceedings in serving the or- der. Exception to sureties and proceed- ings thereon, or on failure to ex- cept. 4272. 4273. 4274. 4275. Section 4276. Defendant, when entitled to rede- livery. 4277. J ustification of defendant's sureties. 4278. Qualification of sureties. 4279. Property, how taken when con- cealed in building or iuclosure. 4280. Property, how kept. 4281. Claim of property by third person. 4282. Notice and affidavit, when and where to be filed. Delivery* 4V""f f *?°. , personal proper- ty, when it may be claimed. 3 £f«,yis/ jj £//^\S^ turn thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, the Sheriff must forthwith take the property de- scribed in the affidavit, if it be in the possession of the de- fendant or his agent, and retain it in his custody. He must, without delay, serve on the defendant a copy of the affida- vit, 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, y leaving them at the usual place of abode of either, with some person of suitable age and discretion, or, if neither have any known place of abode, by putting them intlx' nearest post office, directed to the defendant. Sec. 4275. The defendant may, within two days after the service of a copy of the affidavit and undertaking, give notice to the Sheriff that he excepts to the sufficiency ofthf 463 Requisition to /)./,»< /f «, \ ,/V/ sheriff to take and deliver the Security on the part of the plaintiff and proceedings in servingthe Q&hm f & S~/'h U order. V Exception to ' ) sureties and proceedings thereon, or on failure to except. 3 CZLt_f*A*"* Tit. VII Ch.II. DELIVERY OF PERSONAL PROPERTY. §§ 4276-4282 Defendant when entitled to re- delivery. & V^^vf/-, * U. /- rlf^fO Claim of proper- JCe£> y--11 1 ty by third person. /t^^^| f^lv sureties. If he fails to do so he is deemed to have waived all objections to them. When the defendant excepts, the sureties must justify on notice in like manner as upon bail on arrest; and the Sheriff is responsible for the sufficiency of the sureties until the objection to them is either waived or until they justify. If the defendant except to the sureties, he cannot reclaim the property as provided in the next section. Sec. 4276. At any time before the delivery of the prop- erty to the plaintiff, the defendant may, if he do 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 against the defendant. If a return of the property be not so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, except as provided in section 4281. Sec. 4277. The defendant's sureties, upon notice to the plaintiff of not less than two or more than five days, must justify before the Judge of the Court or Probate Judge, in the same manner as upon bail on arrest; and upon such justification the Sheriff must deliver the property to the de- fendant. The Sheriff is responsible for the defendant's sureties until they justify, or until the justification is com- pleted or waived, and may retain the property until that time. If they, or others in their jilace, fail to justify at the time and place appointed, he must deliver the property to the plaintiff. Sec. 4278. The qualification of sureties must be such as are prescribed by this code, in respect to bail upon an order of arrest. Sec. 4279. If the property, or any part thereof, be con- cealed in a building or inclosure, the Sheriff must publicly demand its delivery. If it be not delivered, he must cause the building or inclosure to be broken open, and take the property into his possession; and, if necessary, he may call to his aid the power of his county. Sec. 4280. When the Sheriff has taken property, as in this chapter provided, he must keep it in a secure place, and deliver to the party entitled thereto, upon receiving his fees for taking, and his necessary expenses for keeping, the same. Sec. 4281. If the property taken be claimed by any other person than the defendant or his agent, and such per- son make affidavit of his title thereto, or right to the posses- sion thereof, stating the grounds of such title or right, and serve the same upon the Sheriff, the Sheriff is not bound to keep the property or deliver it to the plaintiff unless the plaintiff, on demand of him or his agent, indemnify the Sheriff against such claim, by an undertaking by two suffi- cient sureties. Sec. 4282. The Sheriff must file the notice, undertaking 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 mentioned therein. 464 Justification of defendant's ^ sureties. */ to t2iL rf y <$, / ^ 4J 1 \l u fy Quaiification o sureties. Property, how taken when oty * concealed in 7 (FTl") building or / inclosure. Property, how v-i^o-r Notice and affidavit, and where to be filed g§ 4287-4288 INJUNCTIONS. Tif. VU. Ch. III. CHAPTER III. Injunctions. Section 4287. Injunctions, what is, and who may grant it. 4288. When it may be granted. 4289. At what time it may be granted, and what is required to obtain it. 4290. Injunction after answer. 4291. Security upon injunction. 4292. Order to show cause why injunction should be granted. Section 4293. Injunction to suspend business of a corporation, how and by whom granted . Injunction against Territorial of- ficers. Motion to vacate or modify injunc- tion. When to be vacated or modified. Affiants when to be produced. 4294. 4295. 4296. 4297. Section 4287. An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought, or by a Judge thereof, and when made by a Judge, it may be enforced as the order of the court. Sec. 4288. An injunction may be granted in the fol- lowing cases: 1. When it appears 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 continu- ance of the act complained of, either for a limited period or perpetually; 2. When it appears by the complaint or affidavit that the commission or continuance of some act during the liti- gation would produce waste, great or irreparable injury to the plaintiff; 3. When it appears during the litigation that the defend- ant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plain- tiff's rights, respecting the subject of the action, and ten- dency to render the judgment ineffectual; 4. When it appears, by affidavit, that the defendant dur- ing the pendency of the action, threatens, or is about to re- move, or to dispose of his property with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition; 5. An injunction may also be granted on the motion of the defendant upon filing a cross complaint, praying for af- firmative relief upon any of the grounds mentioned above in this section, subject to the same rules and provisions pro- vided for the issuance of injunctions on behalf of the plain- tiff; 6. The District Courts or any Judge thereof sitting in chambers, in addition to the powers already possessed, shall have power to issue writs of injunction for affirmative relief having the force and effect of a writ of restitution, restor- ing any person or persons to the possession of any real pro] >- erty from the actual possession of which he or they may be ousted by force, or violence, or fraud, or stealth, or any combination thereof, or from which he or they are kept out of possession by threats whenever such possession was tak- en from him or them by entry of the adverse party on Sun- day or a legal holiday, or in the night time, or while the party in possession was temporarily absent therefrom. The granting of such writ shall extend only to the right of pos- session under the facts of the case, in respect to the manner 30 465 Injunction what is, and who may grant it. When it may be granted. cTicr- ,ft-G \JtZ<- Ctc^c Amendment. Amendment. Amendment. 14 see. Tit. VII. Ch. III. INJUNCTIONS. §§ 4289-4294 cO 7 At what time it raay be granted, and what is required to obtain it. r*f fit Ini unction after answer. Undertaking on injunction. kTJ D c / A//// \%**ri<\ f JvK c f u/^iT Shares of stock and debts due defendant, how attached and disposed of. $t*A t^f f^^ / How real and personal property shall be attached. ,, t- t/_ \_ /Qetiv-Kf j/ Tit. VII. Ch.IV. ATTACHMENTS. §g 4308-4311 ^ &<£>/>//? ftifot &JLSJIL4. attachment when filed, in the names, both of the defendant and of the person by whom the property is held, or in whose name it stands on the records; 3. Personal property, capable of manual delivery must be attached by taking it into custody; 4. Stock or shares, or interest in stock or shares, of any corporation or company, must be attached by leaving with the president, or other head of the same, or the secretary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ; 5. Debts and credits, and other personal property, not . capable of manual delivery, must be attached by leaving with the person owing such debts, or having in his posses- sion, or under his control, such credits or other personal property, or with his agent, a copy of the writ, and a notice that the debts owing by him, to the defendant, or the cred- its or other personal property in his possession, or under his control, belonging to the defendant, are attached in pursu- ance of such writ. Sec. 4308. Upon receiving information in writing from the plaintiff or his attorney, that any person has in his pos- session or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the sheriff must serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pur- suance of such writ. Sec. 4309. All persons having in their possession or un- der their control, any credits or other personal property be- longing to the defendant, at the time of service upon them of a copy of the writ and notice, as provided in the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the Sheriff, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged or any judgment recov- ered by him be satisfied. Sec. 4310. Any person owing debts to the defendant, or having in his possession or under his control, any credits or other personal property belonging to the defendant, may be required to attend before the court or Judge or a referee appointed by the court or Judge and be examined on oath re- specting the same. The defendant may also be required to attend for the purpose of giving information respecting his property and may be examined on oath. The court or Judge may, after such examination, order personal property capa- ble of manual delivery to be delivered to the Sheriff on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and de- scription thereof. Sec. 4311. The Sheriff must make a full inventory of the property attached, and return the same with the writ. To enable him to make such return as to the debts and cred- its attached, he must request, at the time of service, the party owing the debt or having the credit to give him a memorandum, stating the amount and description of each and if such memorandum be refused, he must return the 470 Attorney to give written in- structions to sheriff what to attach. Garnishment, when garnishee liable to plain- tiff. ASLlasv^uj f >TVV Citation to garnishee to appear before a court or judge. vLuaXko f r*+^ Inventory, how made. J &{JUs k j yy^jharge of writ, when and before whom made. 0 Co dcf U(l/i4M.c f ,/a!/vft/it may be If jiy attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment. Sec. 4317. If the execution be returned unsatisfied in whole or in part, the plaintiff may prosecute any undertak- ing given pursuant to section 4305 or section 4320, or he may proceed as in other cases upon the return of an execu- tion. Sec. 4318. If the defendant recover judgment against the plaintiff, any undertaking received in the action, all the proceeds of sales and money collected by the Sheriff, and all the property attached remaining in the Sheriff's hands must be delivered to the defendant or his agent. The order of at- tachment shall be discharged and the property released therefrom. Sec. 43 1 9. Whenever the defendant has appeared in the action, he may, upon reasonable notice to the plaintiff, apply to the court in which the action is pending, or to the Judge thereof for an order to discharge the attachment wholly or in part; and upon the execution of the undertaking men- tioned in the next section, an order may be made, releasing from the operation of the attachment any or all of the prop- erty attached, and all of the property so released, and all of the proceeds of the sales thereof must be delivered to the defendant, upon the justification of the sureties on the un- dertaking, if required by the plaintiff. Sec. 4320. Before making such order, the court or Judge must require an undertaking on behalf of the defend- ant by at least two sureties, residents, and freeholders, or householders, in the county, to the effect that in case the plaintiff recover judgment in the action, defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of the judgment, or, in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released. The court or Judge making such order may fix the sum for which the undertaking must be executed, and, df necessary in fixing such sum to know the value of the property released, the same may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify before the court or Judge, and the property attached cannot be released from the attachment without their justification if the same be required. Sec. 4321. The defendant may also at any time, either before or after the release of the attached property, or be- fore any attachment shall have been actually levied, apply on motion upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the Judge thereof , that fie writ of attachment be discharged on the ground that the s une was improperly or irregularly issued. Sec. 4322. If the motion be made upon affidavits on tiie part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in ad- dition to those on which the attachment was made. Sec. 4323. If upon such application, it satisfactorily appears that the writ of attachment was improperly or ir- regularly issued, it must be discharged. 3 tvtac f /// ¥- Deposit in court, / 7* S7Y Money paid to clerk must be deposited with county treas- urer. Manner of enforcing the order. Sec. 4331. No party, or attorney, or person interested in an action, can be appointed receiver therein, without the written consent of the parties, filed with the Clerk. l If a re- ceiver be appointed upon an ex parte application, the court, before making the order, may require from the applicant an undertaking, 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 without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking. Sec. 4332. 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 undertaking, to such person, and in such sum as the court or Judge may direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein. Sec. 4333. 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 comprom- ise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize. Sec. 4334. Funds in the hands of a receiver maybe in- vested upon interest, by order of the court; but no such or- der can be made, except upon the consent of all the parties to the action. CHAPTER VI. Deposit in Court. Section 4341. Manner of enforcing the order. Section 4339 Deposit in court. 4340, Money paid to clerk must be depos- ited with County Treasurer. Section 4339. When it is admitted by the pleading, or shown upon the examination of a party, that he has in his possession, or under his control any money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which be- longs or is due to another party, the court may order the same, upon motion, to be deposited in court or delivered to such party, upon such conditions as may be just, subject to the further direction of the court. Sec. 4340. If the money is deposited in court it must be paid to the Clerk, who must deposit it with the County Treasurer, by him to beheld subject to the order of the court. For the safe keeping of the money deposited with him the Treasurer is liable on his official bond. Sec. 4341. Whenever, in the exercise of its authority, a court has ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the court, beside punish- ing the disobedience, may make an order requiring the Sheriff to take the money, or thing, and deposit, or deliver it in conformity with the direction of the court. 474 §§ 4350-4355 JUDGMENT IN GENERAL. Tit. VIII. Ch. I. TITLE VIII. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. CHAPTER I. Judgment in General. Section 4350. Judgment defined. 4351. Judgment may be for or against one of the parties. 4352. Judgment may be against one party and action proceed as to others. Section 4353. The relief to be awarded to the plaintiff. 4354. Action may be dismissed or non- suit entered. 4355. All other judgments are on the merits. Section 4350. A judgment is the final determination of the rights of the parties in an action or proceeding. Sec. 4351. Judgment maybe given for, or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves. Sec. 4352. 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 is proper. Sec. 4353. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have de- manded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. Sec. 4354. An action may be dismissed, or a judgment of non-suit entered, in the following cases: 1. By the plaintiff himself, at any time before trial, upon the payment of costs; Provided, A counter claim has not been made or affirmative relief sought by the cross-com- plaint or answer of defendant. If a provisional remedy has been allowed the undertaking must thereupon be de- livered by the clerk to the defendant, who may have his action thereon; 2. By either party, upon the written consent of the other; 3. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal; 4. By the court, when, upon the trial, and before the final submission of the case, the plaintiff abandons it; 5. By the court, upon motion of the defendant, when, up- on the trial, the plaintiff fails to prove a sufficient case for the jury. The dismissal mentioned in the first two sub- divisions is made by an entry in the Clerk's register. Judg- ment may thereupon be entered accordingly. Sec. 4355. In every case, other than those mentioned in the last section, judgment must be rendered on the merits. Judgment defined. Judgment may be for or against one of the parties. Judgment may be against one party and action proceed as to others. The relief to be awarded to the plaintiff. Action may be dismissed or nonsuit entered. J n S~ 7 8 t/ 7? Jfro r r( All other judg- ments are on the merits. rt- 475 Tit. VIII. Ch. II-III. FAILURE TO ANSWER.— POSTPONEMENTS. §| 4360-4365 v nr In what cases judgment may be had upon the failure of the defendant to answer. CHAPTER II. Judgment upon Failure to Answer.1 Section 4360. In what cases judgment may be had upon the failure to answer. Section 4360. Judgment may be had, if the defendant fail to answer the complaint, as follows: 1. In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the Clerk of the Court within the time specified in the sum- mons, or such further time as may have been granted, the Clerk, upon application of the plaintiff, must enter the de- fault of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, includ- ing the costs against the defendant, or against one or more of several defendants, in the cases provided for in section 4147; 2. In other actions, if no answer has been filed with the Clerk of the Court within the time specified in the summons, or such further time as may have been granted, the Clerk must enter the default of the defendant: and thereafter the plaintiff may apply at the first or any subsequent term of the court for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, is necessary to enable the court to give judgment, or to carry the judg- ment 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 dam- ages, in whole or in part, the court may order the damages to be assessed by a jury; or if, to determine the amount of damages, the examination of a long account be involved, by a reference as above provided; 3. In actions where the service of the summons was by publication, the plaintiff, upon the expiration of the time for answering, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the court must thereupon require proof to be made of the demand mentioned in the complaint; and if the defendant be not a resident of the Territory, 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 judgment for the amount which he is entitled to recover. CHAPTER III. Issues — The Mode of Trial and Postponements. Sf.ction 4365. Issue 43GG. 4367. 4368. 4369. defined, kinds. Issue of law, how raised. Issue of fact, how raised. Issue of law. how tried. Issue of fact, how tried. sues both of law aud and the diffei'ent When is- fact, the former to be first disposed of. Section 4370. Clerk must enter causes on the calendar, to remain until disposed of. 4371. Parties may bring issue to trial. 4372. Motion to postpone a trial for ab- sence of testimony, requisites of. ■1373. In cases of adjournment a party may have the testimony of any witness taken. issue defined, Section 4365. Issues arise upon the pleadings when a and the different f act or a conclusion of law is maintained by the one party and is controverted by the other. They are of two kinds: 476 §§4366-4373 MODE OF TRIAL AND POSTPONEMENTS. Tit. VIII. Ch.IIL Issue of lav/, how raised. Issue of fact, how raised. Issue of law, how tried . Issues, by whom tried, and order of trial. 1. Of law; and, 2. Of fact. Sec. 4366. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. Sec. 4367. An issue of fact arises: 1. Upon a material allegation in the complaint contro- verted by the answer; and, 2. Upon new matters in the answer, except an issue of law is joined thereon. Sec. 4368. An issue of law must be tried by the court, unless it is referred upon consent. Sec. 4369. In actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this Code. Where, in these cases, there are issues both of law and fact, the issue of law must be first disposed of. In other cases, issues of fact must be tried by the court subject to its power to order an issue to be referred to a referee, as provided in this Code. Sec. 4370. The Clerk must enter causes upon the cal- endar of the court according to the date of issue. Causes once placed on the calendar must remain upon the calendar from court to court, until finally disposed of; Provided, That causes may be dropped from the calendar by consent of parties, or by order of the court, and may be again restored upon notice. Sec. 4371. Either party may bring an issue to trial, or to a hearing, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case and take a dismissal of the action, or a ver- dict, or judgment, as the case may require. Sec. 4372. A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be ob- tained, and that due diligence has been used to procure it. The court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. Sec. 4373. The party obtaining a postponement of a trial in any court of record must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, be then taken by de- position before a Judge or Clerk of the court in which the case is pending, or before such Notary Public as the court may indicate, which must accordingly be done; and the tes- timony so taken may be read on the trial, with the same ef- fect, and subject to the same objections, as if the witnesses were produced. 477 J~X? J-?o S 7/ •r/v Clerk must enter causes on the calendar, to remain until disposed of. Parties may bring issue to trial . Motion to post- pone a trial for absence of testimony, requisites of. € Order of pro- ceeding on trial . (,, ? Charge to the jury. Court niuBt furnish in writ- ing, upon request, the points of law contained therein. Special instructions. ( p a o h> 6 o / View by jury of the premises. 6/c Admonition when jury per- mitted to separate. Tit. VIII. Ch.IV. TEIAL BY JURY. S§ 4388-4394 f *\ C 13 GcJ L iL Li) C(f Jury may take with them certain papers. Deliberation of jury, how conducted . May come into court for further instructions. duty not to form or express an opinion thereon until the case is finally submitted to them. Sec. 4388. Upon retiring for deliberation the jury may take with them all papers which have been received as evi- dence in the cause, except depositions, or copies of such pa- pers 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 pro- ceedings on the trial, taken by themselves or any of them, but none taken by any other person. Sec. 4389. When the case is finally submitted to the jury, they may decide in court or retire for deliberation. If they retire, they must be kept together, in some con- venient place, under charge of an officer, 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 are agreed upon their verdict; and he must not, before their verdict is rendered, communicate to any person the state of their de- liberations, or the verdict agreed upon. Sec. 4390. After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desired to be informed of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the pre- sence of, or after notice to, the parties or counsel. Sec. 4391. If, after the impaneling of the jury, and be- fore verdict, a juror become sick, so as to be unable to per- form his duty, the court may order him to be discharged. In that case the trial may proceed 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 impaneled. Sec. 4392. 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. Sec. 4393. 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 discharged. 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 dis- charges the jury. Sec. 4394. When the jury have agreed upon their ver- dict, 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 480 Proceedings in case a juror becomes sick. When prevented from giving a verdict the cause may be again tried. While jury are absent, court may adjourn from time to time. Sealed verdict. Final adjourn- ment discharges the jury. Verdict how declared. Form of, Polling the jury. §§ 4395-4400 TRIAL BY JURY. Tit. VIII. Ch.IV. Proceedings when verdict is informal. General and special verdict defined. When a general or special verdict may- be rendered. party may require the jury to be polled, which is done by the court or Clerk asking each juror if it is his verdict. If any one answer in the negative, the jury must again be sent out. Sec. 4395. When the verdict is announced, if it is in- formal 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. Sec. 4396. The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues either in favor of the plaintiff or defendant ; 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 established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the court but to draw from them conclusions of law. Sec. 4397. In an action for the recovery of money only, or specific real property, the jury, in their discretion, may ren- der a general or special verdict. In all other cases the court may direct a jury to find a special verdict in writing upon all or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon 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 ac- cordingly. Sec. 4398. 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 estab- lished, exceeding the amount of the plaintiff's claim as es- tablished, the jury must also find the amount of the recov- ery. Sec. 4399. In an action for the recovery of specific per- sonal property, if the property has not been delivered to the plaintiff, 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 pre- vailing party has sustained by reason of the taking or de- tention of such property. Sec. 4400. 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 special ver- dict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it. / " entered thereon in the same manner as if the action had been tried by the court. Reference ordered on motion, in what cases. fj ? Number of referees, quali- fications, etc. £ Either party- may object. V / Objections, how disposed of. Referees to report within twenty days. Effect of ref- eree's flndlogt 6: 483 Tit. VIII. Ch. VII (• L J How excepted to, etc. EXCEPTIONS. §§ 4421-4427 Sec. 4421. The findings of the referee may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the "finding re- ported has the effect of a special verdict. Lit 1 1 £ (c Exception what is. When taken. 14 ses. fc«o Time for, What deemed excepted to. Amendment. CHAPTER VII. Exceptions. 4427. 4428. 4429. 4430. Section 443 1 . . Exceptions after judgment, etc . 4432. When exception is refused, applica- tion to Supreme Court to prove the same, etc 4433. Proceedings where Judge ceases to hold office. Section 4426. Exceptions may be taken. Time when taken, etc. What deemed excepted to. Exception. Form of. Exceptions signed by Judge and filed with Clerk. Exceptions not presented at time of ruling. Notice to adverse par- ty, how settled upon, etc. Section 4426. An exception is an objection upon a matter of law, to a decision made either before or after judgment, by a court, tribunal, Judge, or other judicial offi- cer in an action or proceeding. Except as provided in the next section, the exception must be taken and settled at the time the decision is made, and no order of court shall be made for the settlement of such exception at any other time, except by the agreement of both parties. When an exception is taken, the court, Judge, tribunal, or judicial officer shall allow sufficient time for the reduc- tion to writing, and settlement of the same, and in case such time shall not be allowed, or such exception shall not be fairly settled, the facts may be shown by affidavit, and the party taking such exception may apply to the court, or tribunal, to which an appeal lies, in the action or proceed- ing, to settle the same fairly, according to the facts, and when so settled, the same shall become a part of the record in such action or proceeding. [Act Jan. 31, 1887. in effect June 1, 1887.] Sec. 4427. The verdict of the jury, the final decision in an action or proceeding, an interlocutory order or decision, finally determining the rights of the parties, or some of them; an order or decision made upon a contested motion; an order or decision from which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance; an order made upon ex-parte application, and an order or de- cision made in the absence of a party, are deemed to have been excepted to; and such exception to the verdict of a jury; to the final decision of an action or proceeding; to an order or decision finally determining the rights of the parties or any of them; to an order sustaining or overruling a demur- rer; or to any other order or decision included within the terms of this section, where such order or decision and the papers upon which it is made are a part of the records and files in the action, need not, unless desired by the party ob- jecting thereto, be embodied in a bill of exceptions, but the same, appearing in the record or files, may be reviewed upon appeal as though settled in such bill of exceptions. 484 §§ 4428-4430 EXCEPTIONS. Tit. VIII. Ch. Vll. Sec. 4428. No particular form of exception is required. But when the exception is to the verdict or decision, upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient. The objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more. Only the substance of the Reporter's notes of the evidence shall be stated. Docu- ments on file in the action or proceeding may be copied, or the substance thereof stated, or a reference thereto, suffi- cient to identify them may be made. Sec. 4429. A bill containing the exception to any deci- sion may be presented to the court or Judge for settlement at the time the decision is made, and after having been set- tled, shall be signed by the Judge and filed with the Clerk. When the decision excepted to is made by a tribunal other than a court, or by a judicial officer, the bill of exceptions shall be presented to, and settled and signed by such tribunal or officer. Sec. 4430. When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, with- in ten days after the entry of judgment, if the action were tried with a jury, or after receiving notice of the entry of judgment, if the action were tried without a jury, or such further time as the court in which the action is pending, or a Judge thereof, may allow, prepare the draft of a bill, and serve the same, or a copy thereof, upon the adverse party. Within ten days after such service, the adverse party may propose amendments thereto, and serve the same, or a copy thereof, upon the other party. The proposed bill and amend- ments must within ten days thereafter, by the party seek- ing the settlement of the bill, be delivered to the Clerk of the Court for the Judge who tried or heard the case. When re- ceived by the Clerk, he must immediately deliver them to the Judge, if he be in the county; if he be absent from the county, and within the Territory, and either party desire the papers to be forwarded to the Judge, the Clerk must, upon notice in writing of such party, immediately forward them by mail, or other safe channel; if not thus forwarded, the Clerk must deliver them to the Judge immediately after his return to the county. When received from the Clerk, the Judge must* designate the time at which he will settle the bill, and the Clerk must immediately notify the parties of such designation. At the time designated, the Judge must settle the bill. If the action was tried before a referee, the proposed bill, with the amendments, if any, must be pre- sented to such referee for settlement within ten days after service of the amendments, and thereafter, upon notice of five days to the adverse party, the referee shall settle the bill. If no amendments are served, or if served are allowed, the proposed bill may be presented, with the amendments, if any, to the Judge or referee, for settlement without notice to the adverse party. It is the duty of the Judge or referee, in settling the bill, to strike out of it all redundant and use- less matter, so that the exceptions may be presented as briefly as possible. When settled, the bill must be signed by the Judge or referee, with his certificate to the effect that the same is allowed, and shall then be filed with the Clerk. 485 Exception, form of. c yj\ Bill of exceptions. if 9 Bill of excep- tions, prepara- tion and settle- ment of, amended. (To Action before referee. Tit. VIII. Ch. Till. NEW TRIALS. 4431-4439 »JV Exceptions after judgment, etc. u i- When exception is refused, application to supreme court to prove the same, etc. (^r3 Proceedings where judge ceases to hold office, etc. Sec. 4431. Exceptions to any decision made after judg- ment, may be presented to the Judge at the time of such decision and be settled or noted as provided in section 4429, and a bill thereof may be presented and settled afterwards, as provided in section 4430, and within like periods after en- try of the order upon appeal from which such decision is re- viewable. Sec. 4432. If the Judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the Supreme Court to prove the same. The application may be made in the mode and manner, and under such regulations as that Court may prescribe; and the bill when proven, must be certified by a Justice as correct, and filed with the Clerk of the Court in which the action was tried, and when so filed it has the same force and effect as if settled by the Judge who tried the cause. Sec. 4433. When the decision excepted to was made by any judicial officer other than a Judge, the bill of exceptions shall he presented to such judicial officer and be settled and signed by him, in the same manner as it is required to be presented to, settled and signed by a court or Judge. A Judge or judicial officer may settle and sign a bill of excep- tions after as well as before he ceases to be such Judge or judicial officer. If such Judge or judicial officer, before the bill of exceptions is settled, dies, is removed from office, becomes disqualified, is absent from the Territory, or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the Supreme Court may, by its order or rules, direct. Judges, judicial officers, and the Su- preme Court shall respectively possess the same power, in settling and certifying statements as is by this section con- ferred upon them in settling and certifying bills of excep- tions. C re (, vT 7 New trial denned. When a new trial may be granted. CHAPTER VIII. New Trials. 4438. New trial denned. 4439. When a new trial may be granted. 4440. On what papers moved for. 4441. Notice of motion, upon whom served and what to contain. Section 4442. Motion to be heard . 4443. Record on appeal. 4444. New trial ordered by court. 4445. Motion, where heard. Section 4438. A new trial is a re-examination of an is- sue of fact in the same Court after a trial and decision by a jury or Court or by referees. Sec. 4439. 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 discre- tion by which either party was prevented from having a fair trial; 2. Misconduct of the jury; and when 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, by a resort to the determination of chance. 486 §§4440-4441 NEW TRIALS. Tit. riu. ch. rni. On what papers moved. Notice of inten- tion, when to be filed and what to contain. Such misconduct may be proved by the affidavit of any one of the jurors; 3. Accident or surprise, which ordinary prudence could not have guarded against; 4. Newly discovered evidence, material for the party mak- ing the application, which he could not, with reasonable diligence, have discovered and produced at the trial; 5. Excessive damages, appearing to have been given un- der 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, occurring at the trial, and excepted to by the party making the application. Sec. 4440. When an application is made for a cause mentioned in the first, second, third, and fourth subdivisions of the last 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 records, and files in the action, or the minutes of the court or a bill of exceptions, or a statement of the case prepared as hereinafter provided. Sec. 4441. The party intending to move for a new trial must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the Clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the records and files in the action, or the minutes of the court or a bill of exceptions, or the statement of the case; 1. If the motion is to be made upon affidavits, the moving Affidavits. party must, within ten days after serving the notice, or such further time as the court in which the action is pending, or a Judge thereof may allow, file such affidavits with the Clerk and serve a copy upon the adverse party, who shall have ten days to file counter affidavits, a copy of which must be served upon the moving party; 2. If the motion is to be made upon a bill of exceptions, Bin of and no bill has already been settled as hereinbefore provid- exceptions ed, the moving party shall have the same time after service of the notice to prepare and obtain a settlement of a bill of exceptions, as is provided after the entry of judgment or after receiving notice of such entry by section 4430, and the bill shall be prepared and settled in a similar manner. If a bill of exceptions has been already settled and filed, when the notice of motion is given, such bill shall be used on the motion; 3. If the motion is to be made on a statement of the case, statement the moving party must, within ten days after service of the notice, or such further time as the Court in which the action is pending, or the Judge thereof may allow, prepare a draft of the statement, and serve the same, or a copy thereof upon the adverse party. If such proposed statement be not agreed to by the ad- verse party, he must, within ten days thereafter, prepare amendments thereto, and serve the same or a copy thereof, upon the moving party. If the amendments be adopted, the statements shall be amended accordingly and then pre- 487 £, r f 6 ;>g 4479-4480 THE EXECUTION. Tit. IX. Ch. I> Sec. 4479. 13 ses., 79. Amendment. All real and personal estate belonging to property0f any married woman at the time of her marriage, or to which Semp^ron^' she subsequently becomes entitled in her own right, and execution- all the rents, issues and profits thereof, and all compensa- tion due or owing for her personal services, is exempt from execution against her husband. Sec. 4480. In addition to the homestead exempted by what exempt the civil code, the following property belonging to an act- am?ndedCUti0"' ual resident of the Territory, is exempt from execution, ex- cept as herein otherwise specially provided: 1. Chairs, tables, desks and books, to the value of two hundred dollars, belonging to judgment debtor; 2. Necessary household, table and kitchen furniture be- longing to judgment debtor, including one sewing machine in actual use in a family, or belonging to a woman, stoves, stovepipe and stove furniture, beds, bedding and bedsteads, not exceeding in value three hundred dollars; wearing ap- parel, hanging pictures, oil paintings and drawings, drawn or painted by any member of the family, and family por- traits and their necessary frames, provisions actually pro- vided for individual or family use sufficient for three months; two cows with their sucking calves, and two hogs with their sucking pigs; 3. The farming utensils or implements of husbandry of a farmer not exceeding in value the sum of three hundred dollars; also two oxen, or two horses, or two mules and their harness, one cart or wagon, and food for such oxen, horses or mules for one month; also a water right not to exceed one hundred and sixty inches of water, used for the irriga- tion of lands actually cultivated by him; also all seed, grain or vegetables actually provided, reserved on hand for the pur- pose of planting or sowing at any time within the ensuing six months, not exceeding in value the sum of two hundred dollars; 4. Tools or implements of a mechanic or artisan neces- sary to carry on his trade, not exceeding in value the sum Amended of five hundred dollars; the notarial seal and records of a notary public; the instruments and chest of a surgeon phy- sician, surveyor and dentist, necessary to the exercise of their profession, with their scientific and professional libra- ries; the law professional libraries and office furniture of attorneys, counselors and judges, and the libraries of min- isters of the gospel; 5. The cabin or dwelling of a miner, not exceeding in value the sum of five hundred dollars; also his sluices, pipes, hose, windlass, derrick, cars, pumps and tools not ex- ceeding in value two hundred dollars; also one saddle ani- mal and one pack animal, together with their saddles and equipments belonging to a miner actually engaged in pros- pecting, not exceeding in value two hundred and fifty dollars; 6. Two oxen, two horses, or two mules, and their har- ness; and one cart, wagon, dray or truck by the use of which a cartman, drayman, truckman, huckster, peddler, hack- man, teamster or other laborer habitually earns living; and one horse with vehicle and harness, or other equipments used by a physician, surgeon or minister of the gospel, in making his professional visits, with food for such oxen, horses or mules for one month; 495 (o Tit. IX. Ch. I. THE EXECUTION. §§ 4481-4482 Ameuded. o?/ 7. The earnings of the judgment debtor for his personal services rendered at any time within thirty days next pre- ceding the levy of execution, or levy of attachment, when it appears by the debtor's affidavit or otherwise, that such earnings are necessary for the use of his family residing in this Territory supported wholly or in part by his labor; 8. The shares held by a member of a homestead associa- tion duly incorporated, not exceeding in value one thou- sand dollars — if the person holding the share is not the owner of a homestead under the laws of this Territory; 9. All moneys, benefits, privileges or immunities accru- ing, or in any manner growing out of any life insurance on the life of the debtor, to an amount represented by an an- nual premium not exceeding two hundred and fifty dollars; 10. All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, implements and appa- ratus thereto appertaining, and all furniture and uniforms of any fire company or department organized under any law of this Territory ; 11. All arms, uniforms and accouterments required by law to be kept by any person; also one gun; 12. All court houses, jails, public offices and buildings, school house, lots, grounds and personal property appertain- ing thereto; the fixtures, furniture, books, papers, and appur- tenances belonging and pertaining to the court house, jail, and public offices belonging to any county of this Territory, or for the use of schools, and all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings for the use of fire departments and military or- ganizations, and the lots and grounds thereto belonging and appertaining, owned or held by any town or incorporat- ed city, or dedicated by such town or city to health, orna- ment, or public use, or for the use of any fire or military company organized under the laws of this Territory. No article or species of property mentioned in this section is exempt from execution issued upon a judgment recovered for its price, or upon a mortgage thereon. Sec. 4481. The Sheriff must execute the writ against the property of the judgment debtor, by levying on a suffi- cient amount of property if there be sufficient; collecting or selling the things in action, and selling the other property and paying to the plaintiff or his attorney so much of the proceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and accruing costs must be re- turned to the judgment debtor, unless otherwise directed by the judgment or order of the court. When there is more pro- perty of the judgment debtor than is sufficient to satisfy the judgment and accruing costs within the view of the Sheriff, he must levy only on such part of the property as the judg- ment debtor may indicate, if the property indicated be am- ply sufficient to satisfy the judgment and costs. Sec. 4482. Before the sale of the property on execu- tion, notice thereof must be given, as follows: 1. In case of perishable property, by posting written notice of the time and place of sale in three public places of the precinct or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; 496 Writ, bow executed. Notice of sale, how given. 5§ 4483-4488 THE EXECUTION. TIL IX. Ch.L 2. In case of other personal property, by posting a simi- lar notice in three public places in the precinct or city where the sale is to take place, for not less than five nor more than ten days; 3. In case of real property, by posting a similar notice, particularly describing the property, for twenty days, in three public places of the precinct or city where the prop- erty is situated, and also where the property is to be sold, or publishing a copy thereof once a week for the same period, in some newspaper published in the county, if there be one. When the judgment under which the property is to be sold is made payable in a specified kind of money or currency, the several notices required by this section must state the kind of money or currency in which bids may be made at such sale, which must be the same as chat specified in the judgment. Sec. 4483. An officer selling without the notice pre- scribed by the last section forfeits five hundred dollars to the aggrieved party, in addition to his actual damages; and a person willfully taking down or defacing the notice post- ed, if done before the sale or the satisfaction of the judg- ment (if the judgment be satisfied before sale), forfeits five hundred dollars. Sec. 4484. All sales of property under execution must be made at auction, to the highest bidder, between the hours of nine in the morning and five in the afternoon. After sufficient property has been sold to satisfy the execu- tion, no more can be sold. Neither the officer holding the execution nor his deputy can become a purchaser, or be in- terested in any purchase, at such sale. When the sale is of personal property, capable of manual delivery, it must be within view of those who 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, or when a por- tion of such real property is claimed by a third person, and he requires it to be sold separately, such portion must be thus sold. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles which can be sold to advan- tage separately, and the sheriff' must follow such directions. Sec. 4485. If a purchaser refuse to pay the amount bid by him for property struck off to him at a sale under execu- tion, the officer may again sell the property at any time to the highest bidder, and if any loss be occasioned thereby, the officer may recover the amount of such loss, with costs, from the bidder so refusing, in any court of competent juris- diction. Sec. 4486. When a purchaser refuses to pay, the officer may, in his discretion, thereafter reject any subsequent bid of such person. Sec. 4487. The two preceding sections must not be con- strued to make the officer liable for any more than the amount bid by the second or subsequent purchaser and the amount collected from the purchaser refusing to pay. Sec. 4488. When the purchaser of any personal proper- ty capable of manual delivery, pays the purchase money, 32 497 Selling without notice, what penalty attached. Sales, how con- ducted, neither the officer con- ducting it nor his deputy to be a purchaser. Real and per- sonal property, how sold. Judgment debtor, If pres- ent, may direct order of sale, and the officer shall follow his directions. Proceedings on refusal of pur- chaser to pay purchase money. When sheriff may refuse bid. These two sec- tions not to make officer liable, etc. Personal prop- erty capable of manual delivery, how delivered to purchaser. 6? j C ?Y 6 ?kT 6? * Tit. IX. Ch.L THE EXECUTION. §§ 4489-4493 '/f /oo no i loi. 7 °0 Personal prop- erty not capable of manual de- livery, now sold and delivered. Real property, when absolute sale or not. Amended. In the latter case, what the certificate must contain . the officer making the sale must deliver to the purchaser the property, and, if desired, execute and deliver to him a certificate of the sale. Such certificate conveys to the pur- chaser all the right which the debtor had in such' property on the day the execution or attachment was levied. Sec. 4489. When the purchaser of any personal property not capable of manual delivery pays the purchase money, the officer making the sale, must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied. Sec. 4490. 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 all his right, title, interest, and claim thereto at any time during any subsisting lien thereon by attachment in the action, or by the docketing of the j udgment. When the estate is less than a leasehold of two years' unexpired term, the sale is absolute. In all other cases the property is subject to redemption, as provided in this chapter. The officer must give to the pur- chaser 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. And when the judgment, under which the sale has been made is made payable in a specified kind of money or cur- rency, the certificate must also show the kind of money or currency in which such redemption may be made, which must be the same as that specified in the judgment. A duplicate of such certificate must be filed for record by the officer in the office of the Recorder of the county. Sec. 4491. Property sold subject to redemption, as pro- vided in the last section, or any part sold separately, may be redeemed in the manner hereinafter provided, by the follow- ing persons, or their successors in interest: 1. The judgment debtor, 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 property sold, on some share or part thereof, subse- quent to that on which the property was sold. The persons mentioned in the second subdivision of this section are, in this chapter, termed redemptioners. Sec. 4492. The judgment debtor or redemptioner may redeem the property from the purchaser within six months after the sale, on paying the purchaser the amount of his purchase, with twelve per cent thereon in addition, together with the amount of any assessment or taxes which the pur- chaser may have paid thereon after the purchase, and inter- est 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. Sec. 4493. If property be so redeemed by a redemp- tioner, another redemptioner may, within sixty days after the last redemption, and within six months after the sale, again redeem it from the last redemptioner, on paying the sum paid on such last redemption, with four per cent there- 498 'Real property so sold, by whom it may be re- deemed. When it may be redeemed, and redemption money. When judgment debtor or other redemptioner may redeem. §§ 4494-4495 THE EXECUTION. Tit. IX. Ch. I. Notice of redemption. Sheriff's deed. on in addition, and the amount of any assessment or taxes which the last redemptioner may have paid thereon after the redemption by him, with interest on such amount, and in addition the amount of any liens held by said last redemp- tioner prior to his own, with interest; but the judgment un- der which the property was sold need not be so paid as a lien. The property may be again, and as often as a redemp- tioner is so disposed, redeemed from any previous redemp- tioner, within sixty days after the last redemption, and within six months after the sale, on paying the sum paid on the last previous redemption, with four per cent thereon in addition, and the amount of any assessments or taxes which the last previous redemptioner paid after the redemption by him, with interest thereon, and the amount of any liens, other than the judgment under which the property was sold, held by the last redemptioner previous to his own, with in- terest. Written notice of redemption must be given to the Sheriff, and a duplicate filed for record with the Recorder of the county; and if any taxes or assessments are paid by the redemptioner, or if he has or acquires any lien other than that upon which the redemption was made, notice thereof, must in like manner be given to the Sheriff, and filed with the Recorder; and if such notice be not filed, the property may be redeemed without paying such tax, assessment, or lien. If no redemption be made within six months after the sale, the purchaser, or his assignee, is entitled to a con- veyance; or, if so redeemed, whenever sixty days have elapsed, and no other redemption has been made, and notice thereon given, the time for redemption by a redemptioner, has expired, and the last redemptioner, or his assignee, is entitled to a Sheriff's deed at the expiration of six months after the sale; but in all cases the judgment debtor shall have the entire period of six months from the date of the sale to redeem the property. If the judgment debtor redeem, he must make the same payments as are required to effect a redemption by a redemptioner. If the debtor redeem, the effect of the sale is terminated, and he is restored to his es- tate. Upon a redemption by the debtor, the person to whom the payment is made must execute and deliver to him a cer- tificate of redemption, acknowledged and 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 Recorder of the county in which the prop- erty is situated, and the Recorder must note the record thereof in the margin of the record of the certificate of sale. Sec. 4494. The payments mentioned in the last two sections may be made to the purchaser or redemptioner, or for him, to the officer who made the sale. When the judg- ment under which the sale has been made is payable in a specified kind of money or currency, payments must be made in the same kind of money or currency, and a tender of the money is. equivalent to payment. Sec. 4495. 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 oy the clerk of the court, or recorder of the county where the judgment is 499 In the case of redemption, to whom the pay- ments are to be made. What a redemp- tioner must do in order to redeem. 7*?^ Tit. IX. Ch. I. THE EXECUTION. §§ 4496-4498 7^6 Until expiration of redemption time, court may restrain waste on the property. What considered ■waste. 7*7 Rents and profits . of docketed or riled; or, if he redeem upon a mortgage or other lien, a note of the record thereof, certified By the recorder; 2. A copy of any assignment necessary to establish his claim, verified by the affidavit of himself or of a subscrib- ing witness thereto; 3. An affidavit by himself or his agent, showing the amount then actually due on the lien. Sec. 4496. Until the expiration of the time allowed 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 credi- tor. But it is not waste for the person in possession of the property at the time of sale, or entitled to possession after- wards, during the period allowed for redemption, to con- tinue to use it in the same manner in which it was previ- ously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs of buildings thereon ; or to use wood or timber on the property therefor; or for the re- pair of fences; or for fuel in his family, while he occupies the property. Sec. 4497. The purchaser, from the time of the sale un- til a redemption, and a redemptioner, from the time of his redemption until another redemption^ is entitled to receive, from the tenant in 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 the judgment creditor or purchaser, or his or their assigns, from the prop- erty thus sold preceding such redemption, the amount of such rents and profits shall be a credit upon the redemption money to be paid; and if the redemptioner or judgment debt- or, before the expiration of the time allowed for such re- demption demands in writing of such purchaser, or credi- tor, 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 state- ment is given by such purchaser or his assigns, to such re- demptioner or debtor. If such purchaser or his assigns shall, for a period of one month from and after such de- mand, fail or refuse to give such statement, such redemp- tioner or debtor, may, within sixty days after said demand, bring an action in any court of competent jurisdiction, to compel an accounting and disclosure of such rents and prof- its, and until fifteen days from and after the final deter- mination of such action, the right of redemption is extended to such redemptioner or debtor. Sec. 4498. If the purchaser of real property sold on ex- ecution, or his successor in interest, be evicted therefrom in consequence of irregularities in the proceedings concern- ing the sale, or of the reversal or discharge of the judgment, he may recover the price paid, with interest, from the judg- ment creditor. If the purchaser of property at sheriff's sale, or his successor in interest, fail to recover possession in con- sequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execu- tion and sale, the court having jurisdiction thereof must, after notice and on motion of such party in interest, or his attorney, revive the original judgment in the name of the petitioner, for the amount paid by such purchaser at the 500 If purchaser of real property be evicted for irregularities in sale, what he may recover and from -whom. When judgment to be revived. Petition for the purpose, how and by whom made. §§4499-4505 PROCEEDINGS SUPPLEMENTARY TO EXECUTION. Tit. IX Ch.Il. Party who pays rnore than his share may com- pel contribution. sale, with interest thereon from the time of payment at the same rate that the original judgment bore; and the judg- ment so revived has the same force and effect as would an original judgment of the date of the revival, and no more. Sec. 4499. When upon an execution against several persons more than a due proportion of the judgment is sat- isfied out of the proceeds of the sale of the- property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and when a judgment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. In such case, the person so paying or contributing is entitled to the benefit of the judgment, to enforce contribution or repayment, if, within ten days after his payment, he file with the clerk of the court where the judgment was rendered, notice of his payment and claim to contribution or repayment. Upon a filing of such notice, the clerk must make an entry thereof in the margin of the docket. 7°? CHAPTER II. Proceedings Supplementary to the Execution. Section 4508. Witness required to testify. 4509. Judge may order property to be ap- plied on execution. 4510. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debt- or. 4511. Disobedience of orders, how pun- ished. Section 4504. Debtor required to answer concern- ing his property, when. 4505. Proceedings to compel a debtor to appear. In what cases he may be arrested. What bail may be given. 4500. Any debtor of the judgment debtor may pay the latter's creditor. 4507. Examination of debtors, of judg- ment debtor, or of those having property belonging to him. Section 4504. When an execution against property of Debtor required the judgment debtor or of any of several debtors in the same c°iSng hisOU~ judgment, issued to the Sheriff of the County where he re- property, when, sides, or if he do not reside in this Territory, to the Sheriff of the County where the judgment roll is filed, is returned unsatisfied in whole or in part, the judgment creditor at any time after such return is made, is entitled to an order from the Judge of the court, requiring such judgment debtor to appear and answer upon oath concerning his property, be- fore such Judge, or a referee appointed by him, at a time and place specified in the order; but no judgment debtor must be required to attend before a Judge or referee out of the county in which he resides. Sec. 4505. After the issuing of an execution against property, and upon proof by affidavit of a party or other- wise, to the satisfaction of the court or of a Judge thereof, that any judgment debtor 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 before such Judge or a referee appointed by him to answer upon oath concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment &, what cases debtor toward the satisfaction of the judgment, as are ^.0^Jdbe provided upon the return of an execution. Instead of 501 Iff Proceedings to compel debtor to appear. V tT Tit.IX. Ch. II. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. §§4506-4511 t& 1/f l'r ?/f y%o y-u What bail may be given. Any debtor of tbe judgment debtor may pay the latter's creditor. Examination of debtors of judg- ment debtor, or of those having - property belong ing to him . the order requiring the attendance of the judgment debtor, the Judge may upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor absconding, order the Sheriff to arrest the debtor and bring him before such Judge. Upon being brought be- fore the Judge, he may be ordered to enter into an under- taking, with sufficient surety, that he will attend from time to time before the Judge or referee, as may be directed during the pendency of proceedings and until the final ter- mination thereof, and will not in the meantime dispose of any portion of his property not exempt from execution. In de- fault of entering into such undertaking he may be commit- ted to prison. Sec. 4506. After the issuing of an execution against property and before its return, any person indebted to the judgment debtor may pay to the Sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution; and the Sheriff's receipt is a sufficient discharge for the amount so paid. Sec. 4507. 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, or upon proof by af- fidavit or otherwise, to the satisfaction of the Judge, that any person or corporation has money or property of such judgment debtor, or is indebted to him in an amount ex- ceeding fifty dollars, the Judge may, by an order, require such person or corporation, or any officer or member there- of, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same. Sec. 4508. Witnesses may be required to appear and testify before the Judge or referee, upon any proceeding un- der this chapter, in the same manner as upon the trial of an issue. Sec. 4509. The Judge or referee may order any money or property of a judgment debtor not exempt from execu- tion, in the hands of such debtor or any other person, or due to the judgment debtor, to be applied towards the satisfac- tion of the judgment. Sec. 45 1 0. If it appears that a person or corporation, al- leged to have money or property of the judgment debtor, or to be indebted to him, claims an interest in the money or prop- erty adverse to him, or denies the debt, the court or Judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corpor- ation, for the recovery of such interest or debt; and the court or Judge may, by order, forbid a transfer or other dis- position of such interest or debt, until an action can be com- menced and prosecuted to judgment. Such order may be modified or vacated by the Judge granting the same, or the court in which the action is brought, at any time, upon such terms as may be just. Sec. 4511. If any person, party, or witness disobey an order of the referee properly made in the proceedings before him under this chapter, he may be punished by the court or Judge ordering the reference, for a contempt. Witness re- quired to testify. Judge may order property to be applied on execution . Proceedings upon claim of another party to property, or on denial of indebt- edness to judg- ment debtor. Disobedience of orders, how punished. 502 4520-4523 FORECLOSURE OF MORTGAGES. Tit. X. Ch. I. TITLE X. ACTIONS m PARTICULAR CASES. CHAPTER I. Actions for the Foreclosure of Mortgages. Section 4520. Proceedings in a foreclosure suit. 4521. Surplus money to be deposited in court Section 4522. Proceedings when debt secured falls due at different times. 4523 . Mortgage not deemed a conveyance. ' 4524. Affidavit required. Section 4520. There can be but one action for the recov- ery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which ac- tion must be in accordance with the provisions of this chap- ter. In such action the court may, by its judgment, direct a sale of the incumbered property (or so much thereof as may be necessary) and the application of the proceeds of the sale to the payment of the costs of the court and the ex- penses of the sale, and the amount due to the plaintiff; and sales of real estate under judgments of foreclosure of mort- gages and liens are subject to redemption as in the case of sales under execution; and if it appear from the Sheriff's re- turn that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such bal- ance against the defendant or defendants personally liable for the debt, and it becomes a lien on the real estate of such judgment debtor, as in other cases on which execution may be issued. No person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of re- cord in the proper office at the commencement of the action, need be made a party to such action; and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded con- veyance or lien as if he had been made a party to the ac- tion. Sec. 4521. . If there be surplus money remaining, after Eayment of the amount due on the mortgage, lien or incum- rance, with costs, the court may cause the same to be paid to the person entitled to it, and in the meantime may direct it to be deposited in court. Sec. 4522. If the debt for which the mortgage, lien or incumbrance is held is not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease; and afterwards, as often as more be- comes due, for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the en- tire debt and costs paid, there being a rebate of interest where such rebate is proper. Sec. 4523. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. 503 Proceedings in foreclosure suits. /2£ Surplus money to be deposited in court. Proceedings when debt secured falls due at different times. 7*7 A mortgage must not bo deemed a conveyance. ?* Tlt.X. Ch.II. ACTIONS FOR NUISANCE ON REAL PROPERTY. §§4524-4538 Affidavit re- quired. Couip. laws, 502. Sec. 4524. When an action is brought for the foreclos- ure of a mortgage or lien, other than for purchase money, an affidavit that all taxes levied upon the mortgage or lien, or upon the debt secured thereby, have been paid, must be attached to the complaint in such action; and in case the same is not attached at the commencement of the action, the court in which the suit is pending, on motion of the de- fendant therein must make an order staying all proceedings in such action until such affidavit has been filed; and it is the duty of the court, before entering a decree or judgment in any such case, to require such affidavit or proof. / 3f Nuisance defined, and actions for. 7 7 n^ Waste, actions 0 ^ for. ;jj Trespass for cutting or carry- ing away trees, etc., actions for, ? 3v ?^r Measure of damages in certain cases under the last section . Damages in actions for forcible entry, etc . , may be trebled. CHAPTER II. Actions for Nuisance, Waste and Willful Trespass in Certain Cases, on Real Property. Section 4529. Nuisance defined, and actions for. 4530. Waste, actions for. 4531. Trespass for cutting or carrying away trees, etc., actions for. Section 4532. Measure of damages in certain cases under the last section. 4533. Damages in actions for forcible en- try, etc., may be trebled. Section 4529. Anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfort- able 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 per- sonal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered. Sec. 4530. 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. Sec. 4531. Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles, or other- wise injures any tree or timber on the land of another per- son, or on the street or highway in front of any person's house, village, or city lot, or cultivated grounds; or on the commons or public grounds of or in any city or town, or on the street or highway in front thereof, without lawful au- thority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any court having jur- isdiction. Sec. 4532. Nothing in the last section authorizes the recovery of more than the just value of the timber taken from uncultivated woodland for the repair of a public high- way or bridge upon the land, or adjoining it. Sec. 4533. If a person recover damages for a forcible or unlawful entry in or upon, or detention of any building or any cultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed. 504 §§ 4538-4542 ACTIONS CONCERNING REAL ESTATE. Tlt.X. Gh.Ill CHAPTER III. Actions to Determine Conflicting Claims to Real Prop- erty, AND OTHER PROVISIONS RELATING TO ACTIONS CON- CERNING Real Estate. Section 4538. Parties to an action to quiet title. Wben plaintiff cannot recover costs. If plaintiff's title terminates pond- ing the suit, what he may recover, and how verdict and judgment to be. When value of improvements can be allowed as a set-off. An order may be made to allow a party to survey and measuie the land in dispute. 4539. 4540. 4541 4542. Section 4543. Order, what to contain, and how served. If unnecessary injury done, the party surveying to be liable therefor. 4544. When court may grant injunction ; during foreclosure ; after sale on execution, before conveyance. 4545. Damages may be recovered for in- jury to the possession after sale and before delivery of possession. 4546. Action not to be prejudiced by alien- ation, pending suit. 4547. Mining claims, actions concerning to be governed by local rules. Section 4538. An action may be brought by any person against another who claims an estate or interest in real prop- erty adverse to him, for the purpose of determining such ad- verse claim. Sec. 4539. If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs. Sec. 4540. In an action for the recovery of real prop- erty, 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 judgment must be according to the fact, and the plaintiff may recover damages for withholding the property. Sec. 4541. When damages are claimed for withholding the property recovered, upon which permanent improve- ments 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 set-off against such damages. Sec. 4542. Any person having a bona fide claim to the possession, title of, or interest in any real property or min- ing claim, including any ledges thereof, which is, or which he has good reason to believe, is in the possession of another, either by surface or under-ground holdings or workings, and it is necessary for the ascertainment, enforcement or protec- tion of such rights or interests, that an examination or sur- vey of such property be had, and the person so in the posses- sion thereof, fails or refuses for three days after demand on him made in writing, to permit such examination or survey to be made, the party desiring the same may apply to the court or the Judge thereof, whether he have an action con- cerning such property, pending in such court or not, for an order for such examination and survey. Such application must be made upon written petition or statement under oath, setting out a description of the prop- erty, interest of the party therein, that the premises are in the possession of a party, naming him, the reason why such survey or examination is asked, the demand made for same, and refusal thereof. 505 Parties to an action to quiet title. When plaintiff cannot recover costs. If plaintiff's title terminates pending the suit, wbat he may re- cover, and how verdict and judgment to be. When value of improvements can be allowed as a set-off. ?Sf ? if there be an estate for life or years, in an undi- of the property vided share of the whole property, such estate may be set Sot aii soidheu °ff m any Part °f ^ne property not ordered to be sold. Application of Sec. 4579. The proceeds of the sale of incumbered proceeds of sale property must be applied under the direction of the court £oipneCrTbere'1 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 512 §§ 4580-4586 PARTITION OF REAL PROPERTY. Tit.X. Ch. V Party holding other securities may be required first to exhaust theru. Proceeds of sale, disposition of. When paid into court the cause may be con- tinued for the determination of the claims of the parties. become due; the amount due to be verified by affidavit at the time of payment; 4. The residue among the owners of the property sold, according to their respective shares therein. Sec. 4580. Whenever any party to an action who holds a lien upon the property, or any part thereof, has other se- curities for the payment of the amount of such lien, the court may, in its discretion, order such securities to be ex- hausted before a distribution of the proceeds of sale, or may order a just reduction to be made from the amount of the lien on the property on account thereof. Sec. 4581. The proceeds of sale and the securities taken by the referees, or any part thereof, must be distributed by them to the persons entitled thereto, whenever the court so directs. But in case no direction be given, all of such pro- ceeds and securities must be paid into court or deposited therein, or as directed by the court. Sec. 4582. 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 as 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 facts or law in controversy, by pleadings as in an orig- inal action. Sec. 4583. All sales of real property made by referees, under this chapter, must be made at public auction to the highest 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 any part of it is to be subject to a prior estate, charge or lien, that must be stated in the notice. Sec. 4584. The court must, in the order for sale, direct the terms of credit which may be allowed for the purchase money of any portion of the premises of which it may di- rect a sale on credit, and for that portion of which the pur- chase money is required by the provisions hereinafter con- tained, to be invested for the benefit of unknown owners, infants or parties out of the Territory. Sec. 4585. The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money, of 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 the Clerk of the Court and his successors in office. Sec. 4586. The person entitled to a tenancy for life or years, whose estate has been sold, is entitled to receive such sum as maybe 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 con- sent, the Clerk must enter the same in the minutes of the court. 7?^ ?73 7?* Sales by referees must be at pub- lic auction. J ?* The court must direct the terms of sale or credit. 7? Effect of an order changing ^ * place of trial. £~^ ^£ fe \ 4t4.*L Transfer of cases to the district court. y^s- Amended CHAPTER II. Manner of Commencing Actions in Justices' Courts. Skction 4650. Actions, how commenced. 4651 Summons may issue within a year. 4652. Defendant may waive summons. 4653. Parties may appear in person or by attorney. 465 1 . When guardian necessary, how ap- pointed. 4655. Suminou8, how issued, directed, and what to contain. Section 4656. Time for appearance of defendant. L657. Alias summons. 4658. Same. 4659. Summons, limitation upon time of service. 4660. Summons, by whom and how sorved and returned. 4661. Hour for appearance Section 4650. An action in a Justice's Court is com* menced by filing a complaint. 521 Actions, how commenced. Tit. XII. Ch.II. MANNER OF COMMENCING ACTIONS. §§4651-4657 9* $«> $ Summons may- issue one year. Defendant may waive summons. Parties may appear in person or by attorney. Infant, insane, . ^ or incompetent person to appear by guardian. Amended. Summons, how issued, directed and what to contain, amended. Time for appear- ance of defendant. Alias summons. V v (^ Sec. 4651. The court must indorse on the complaint the date upon which it was filed, and at any time within one year thereafter the plaintiff may have summons issued. Sec 4652. At any time after the complaint is filed the de- fendant may, in writing, or by appearing and pleading, waive the issuing of summons. Sec. 4653. Parties in a Justice's Court may appear and act in person or by attorney; and any person, except the officer by whom the summons or jury process was served, may act as attorney. Sec 4654. When an infant, insane, or incompetent per- son is a party, he must appear either by his general guardian, if he have one, or by a guardian ad litem appointed by the Justice. When a guardian ad litem is appointed by the Justice, he must be appointed as follows: 1. If the infant, insane, or incompetent person, be plaintiff, the appointment must be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years; if under that age, or if insane or in- competent, upon the application of a relative or friend; 2. If the infant, insane or incompetent person, be de- fendant, the appointment must be made at the time the summons is returned, or before the answer, upon the ap- plication of the infant, if he be of the age of fourteen years and apply at or before the summons is returned; if he be under the age of fourteen, or be insane or incompetent, or neglect so to apply, then upon the application of a relative or friend, or any other party to the action, or by the justice on his own motion. Sec 4655. The summons must be directed to the de- fendant, signed by the Justice, and must contain: 1. The title of the court, the name of the county, the name of the precinct or city, in which the action is commenced, and the names of the parties thereto; 2. A sufficient 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 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 defendant so appears and answers, the plaintiff 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. Sec 4656. The time specified in the summons for the appearance of the defendant must be as follows : 1. If an order of arrest is endorsed upon the summons, forthwith ; 2. In all other cases, not less than three nor more than twenty days from its date. Sec 4657. If the summons is returned without being served upon any or all of the defendants, the Justice, upon the demand of the plaintiff, may issue an alias summons, in the same form as the original, except that he may fix the 522 §§ 4658-4666 PLEADINGS IN JUSTICES' COURTS. Tit XII. Gh.IlI. time for the appearance of the defendant at a period not to exceed ninety days from its date. JP k Sec. 4658. The Justice may within a year from the Alias summons, date of the filing of the complaint, issue as many alias sum- mons as may be demanded by the plaintiff. Sec. 4659. The summons cannot be served out of the summons, county in which the action is brought, except where the ac- sS?JiJ© Sr.ou tion is brought upon a joint contract, or obligation of two or more persons who reside in different counties, and the summons has been served upon the defendant, resident of the county in which case the summons may be served upon the other defendants out of the county; and except, al- so, when an action is brought against a party who has con- tracted in writing to perform an obligation at a particular place, and resides in a different county, in which case sum- mons may be served in the county where he resides. When the defendant resides in the county, the summons cannot be served within two days of the time fixed for the appear- ance 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 twenty days of such time. Sec. 4660. The summons in the cases mentioned in the summons, by preceding section may be served by a sheriff or constable of 2er?Sandhow any of the counties of this Territory; Provided, That when a summons issued by a Justice of the Peace, 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 of such county, to the effect that the per- son issuing the same was an acting Justice of the Peace at the date of the summons; or the summons may be served by any male resident, over the age of twentj^-one years, not a party to the suit, within the county where the action is brought and must be served and returned as provided in ac- tions commenced in the District Court; or it may be served by publication and the sections of this Code providing for the publication of summons issued out of the District Court are applicable to the Probate and Justices' Courts, the nec- essary changes and substitutions being made therein. Sec. 4661. The parties are entitled to one hour in which Hour for to appear after the time fixed in the summons, but are not aPPearance- bound to remain longer than the time unless both parties have appeared, and the Justice being present, is engaged in the trial of another cause. frv ? CHAPTER III. Pleadings in Justices' Courts. 8ECTION Section 4666. Form of pleadings . 4672. When plaintiff may demur to an- 4667. Pleadings. swer. 4668. Complaint defined. 4673. Proceedings on demurrer. 4669. When demurrer to complaint may 4674. Amendment of pleadings. be put in. 4675. Answer or demurrer to amended 4670. Answer. pleadings. 4671. If the defendant omits to set up counter claim. Section 4666. Pleadings in Justices' Courts: 1. Are not required to be in any particular form, but pormoi must be such as to enable a person of common understand- pleadings, ing to know what is intended; Tit. XII. Ch. III. PLEADINGS IN JUSTICES' COURTS. §§ 4667-4674 ) d Pleadings. fn Complaint defined. When demurrer ^ . — vy- to complaint Q CHAPTER IV. Provisional Remedies in Justices' Courts. Section 4680. Order for arrest, and arrest of de- fendant. Order executed in any part of the Territory . Affidavit and undertaking for order of arrest. A defendant arrested must be taken before the Justice or Judge im- mediately. The officer must give notice to the plaintiff of airest. 4681. 4082. 4683. 4684. Section 4685 . The officer must detain the defend- ant. 4686. Writ of attachment shall issue upon affidavit. 4687 . Undertaking on attachment must be required. 4688. Writ of attachment, substance of. Officer may take an undertaking instead of levying. 4689. Certain provisions apply to all at- tachments in Justices' Courts. 4690. How claim and delivery enforced. Section 4680. An order to arrest the defendant may be indorsed on a summons issued out of a Justice's Court, and the defendant may be arrested thereon by the Sheriff or Constable, at the time of serving the summons, and brought before the Justice, and there detained until duly discharged, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract when the defendant is about to depart from the Territory, with intent to defraud his creditors; 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied, or converted to his own use by one who received it in a fiduciary capa- city; 3. When the defendant has been guilty of a fraud in con- tracting the debt or incurring the obligation for which the action is brought; 4. When the defendant has removed, concealed, or dis- posed of his property, or is about to do so, with intent to defraud his creditors. But no female can be arrested in any action. Sec. 4681. In cases under the first subdivision of the last section, or when the defendant is about to depart from the Territory, the order of arrest may be executed, and the defendant arrested in any part of the Territory. Sec. 4682. Before an order for an arrest can be made, the party applying must prove to the satisfaction of the Justice by the affidavit of himself, or some other person, the facts upon which the application is founded. The plaintiff must also execute and file a written undertaking in the sum of three hundred dollars, with sufficient sureties, to the ef- fect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the un- dertaking. Sec. 4683. The defendant, immediately upon being ar- rested, must be taken to the office of the Justice who made the order, and if he is absent or unable to try the action, or if it appears to him by the affidavit of the defendant that he 525 Order of arrest, and arrest of defendant. /6 r Order executed in any part of the Territory . Affidavit and undertaking for order of arrest. /^ Defendant arrested must be taken before the justice immediately. s Tit. XII. Ch.IV. PROVISIONAL REMEDIES IN JUSTICES' COURTS. §§4684-4690 fan u-j fat r&9 ?7o Amended. The omcer must give notice to the plaintiff of arrest. The officer must detain the defendant. Writ of attach- ment shall issue upon affidavit. Undertaking on attachment must be required. is a material witness in the action, the officer must imme- diately take the defendant before another justice of the pre- cinct or city, if there is another, and if not, then before the justice of an adjoining precinct or city, who must take jurisdiction of the action, and proceed thereon, as if the sum- mons had been issued and the order of arrest made by him. Sec. 4684. The officer making the arrest must imme- diately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and subscribe a cer- tificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. Sec. 4685. The officer making the arrest must keep the defendant in custody until he is discharged by order of the court. Sec. 4686. A writ to attach the property of the defend- ant must be issued by the Justice at the time of, or after is- suing summons and before answer, on receiving an affida- vit by or on behalf of the plaintiff, showing the same facts as are required to be shown by the affidavit for attachment out of the District Court. Sec. 4687. Before issuing the writ, the Justice must re- quire a written undertaking on the part of the plaintiff, with two or more sufficient sureties, in a sum not less than fifty 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 dam- ages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. Sec. 4688. The writ may be directed to the Sheriff or any Constable of the county, or the Sheriff of any other county, and must require him to attach and safely keep all the 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 defend- ant give him security by the undertaking of two sufficient sureties, in an amount sufficient to satisfy such demand be- sides costs; in which case to take such undertaking. Sec. 4689. The sections of this Code providing for at- tachments out of the District Court, except as in this chap- ter expressly provided, are applicable to attachments issued out of Justices'*Courts, the necessary changes and substitu- tions being made therein. Sec. 4690. In an action to recover possession of person- al property, the plaintiff may at the time of issuing sum- mons or at any time thereafter before answer, claim the de- livery of such property to him; and the sections of this Code providing the practice in proceedings for claim and delive- ry of personal property in the District Court are applicable to like proceedings in Justices' Courts, the necessary changes and substitutions being made therein. Writ of attach- ment, substance of. Officer may take an undertaking instead of levying. Certain provis- ions of code apply to. How claim ai-d delivery enforced. 526 §§4 695-4704 JUDGMENT BY DEFAULT.— TIME OF TRIAL. Tit. XII. Ch.V-VI. CHAPTER V. Judgment by Default. Section 4695. Judgment when defendant fails to appear. Section 4696. Judgment against defendant on de- murrer . Section 4695. When the defendant fails to appear and Judgment when j i xi ■• >r± j • ii ^^ defendant fails answer or demur at the time specified in the summons, or to appear, within one hour thereafter, the court must hear the evidence offered by the plaintiff, and must render judgment in his favor for such a sum (not exceeding the amount stated in the summons), as appears by such evidence to be just. Sec. 4696. In the following cases the same proceedings judgment must be had, and judgment must be rendered in like man- against defend- o • ni-ijn-i^ii i £ -i i < j ant on demurrer. ner, as if the defendant had failed to appear and answer or demur: 1. If the complaint has been amended, and the defen- dant 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 al- lowed by the court. CHAPTER VI. Time of Trial and of Postponements. Section 4701. Time when trial must be commenced 4702. When court may, of its own motion, postpone trial. 4703. Postponement by consent. Section 4704. Postponement upon application of a party. 4705. No continuance for more than ten days to be granted, unless upon filing of undertaking. Time when trial must be commenced. When court may of its own motion, post- pone trial. Section 4701. Unless postponed as prQvided in this chapter, 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 ad- journment for more than twenty-four hours at any one time, until all the issues therein are disposed of. Sec. 4702. The court may, of its own motion, postpone the trial: 1. For not exceeding one day, if, at the time fixed by law or by an order of the court for the trial, the court is. en- gaged in the trial of another action; 2. For not exceeding two days, if, by an amendment of the pleadings, or the allowance of time to make such amend- ment or to plead, a postponement is rendered necessary; 3. For not exceeding three days, if the trial is upon is- sues of fact, and a jury has been demanded. Sec. 4703. The court may, by consent of the parties, given in writing or in open court, postpone the trial to a by consent time agreed upon by the parties. Sec. 4704. The trial may be postponed upon the appli- Postponemer cation of either party for a period not exceeding four months : 527 f? J &-? V Postponement upon applicatiozi of a party. ry # 1 A Tit. XII. Ch. VII. TRIALS IN JUSTICES' COURTS. §§ 4705-4711 I 7' '/ No continuance for more than ten days to be granted, unless upon filing of undertaking. 1. The party making the application must prove, by his own oath or otherwise, that he cannot, for want of mater- ial testimony, which he expects to procure, safely, proceed to trial, and must show in what respect the testimony ex- pected is material, and that he has used due diligence to pro- cure it, and has been unable to do so; 2. If the application is on the part of the plaintiff, and the defendant is under arrest, a postponement for more than three hours discharges the defendant from custody, but the action may proceed notwithstanding, and the de- fendant is subject to arrest on execution, in the same man- ner as if he had not been discharged; 3. If the application is on the part of a defendant under arrest, before it can be granted he must execute an under- taking, with two or more sufficient sureties, to be approved by, and in a sum to be fixed by, the court, to the effect that he will render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein: or that the sureties will payjstQ tlje plaintiff the amount of any judgment which he may m^erve in the action, not exceeding the amount specified in the undertaking. On filing the undertaking specified in this, subdivision, the court must order the de- fendant to be discharged from custody; 4. The party making the application must, if required by the adverse party, consent that the testimony of any wit- ness of such adverse party, who is in attendance, may be then taken by deposition before the court, and that the tes- timony so taken may be read on the trial with the same ef- fect, and subject to the same objections, as if the witness was produced; but the court may require the party making the application to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, -and that it be considered as, actually given on the trial or offered and over- ruled as improper, the trial must not be postponed. Sec. 4705. No adjournment must, unless by consent, be granted for a period longer than ten days, upon the ap- plication of either party, except upon condition that such party file an undertaking in an amount fixed by the court, with two sureties, to be approved by the court, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party ap- plying, not exceeding the sum specified in the undertaking. Issue defined, and the different kinds. CHAPTER VII. Trials in Justices' Courts. Section 4711. Issue defined, and the different kinds. .4712. Issue of law, how raised. 4713. Issue of fact, how raised. 4714. Issue of law, how tried. 4715. Issue of fact, how tried. 4716. Jury, how waived. Section 4717. Either party failing to appear, trial may proceed at request of other party. 4718. Challenges to jurors. 47 1 i) . Manner of pleading a written instru- ment. 4720. If a copy of an instrument be filed, the signatures will be deemed ad- mitted, unless denied under oath. Section 4711. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party 528 5§ 4712-4720 TRIALS IN JUSTICES' COURTS. Tit. XII. Ch. VII and is controverted by the other. They are of two kinds: 1. Of law; and 2. Of fact. Sec. 4712. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. Sec. 4713. An issue of fact arises : 1. Upon a material allegation in the complaint contro- verted by the answer; and, 2. Upon new matter in the answer, except an issue of law is joined thereon. Sec* 4714. An issue of law must be tried by the court. Sec. 4715. An issue of fact must be tried by a jury, un- less a jury is waived, in which case it must be tried by the court. Sec. 4716. A jury may be waived: 1. By the consent of parties, entered in the docket; 2. By a failure of either party to demand a jury before the commencement 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. Sec. 4717. If either party fails to appear at the time fixed for trial, the trial may proceed at the request of the adverse party. Sec. 4718.' The challenges are either peremptory or for cause. Each party is entitled to three peremptory chal- lenges. Either party may challenge for cause on any grounds set forth as grounds of such challenge in the Dis- trict Court. Challenges for cause must be tried by the court. Sec. 4719. 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 ad- verse party, at such time as may be fixed in the order; or, if such order is not obeyed, the account or instrument can- not be given in evidence. Sec. 4720. If the plaintiff annex to his complaint or file with the court at the time of issuing the summons, the original or a copy of the promissory note, bill of exchange, or other written obligation for the payment of money; upon which the action is brought, the defendant is deemed to ad- mit the genuineness of the signatures of the makers, in- dorsers, or assignors thereof, unless he specifically deny the same in his answer, and verify the answer by his oath. Issue of law, bow raised. Issue of fact, how i-aised. Issue of law, bow tried. Issue of fact, bow tried. Jury, bow waived. Either party failing to appeal*, Challenges to jurors. 5 v Manner of pleading a written instrument. V S C If a copy of an instrument be filed, the signatures de< med admitted. tn 34 529 Tit. XII. Ch. VIII. JUDGMENTS, OTHER THAN BY DEFAULT. §§ 4725-4731 CHAPTER VIII. Judgments, Other than by Default, in Justices' Courts. ?13 8?" Judgment by confession . Judgment, -dismissal. Judgment upon verdict. Judgment after trial by the court. Judgment, how entered when defendant sub- ject to arrest. If the sum found due exceeds the jurisdiction the excess may be remitted. Offer to com- promise before trial. Section 4725. Judgment by confession. 4726. Judgment of dismissal entered in certain cases without prejudice. 4727. Judgment upon verdict. 4728. Judgment after trial by the court. 4729. Judgment, when the defendant is subject to arrest. 4730. If the sum found due exceeds the jurisdiction, the excess may be re- mitted. Section 473 1 . Offer to compromise before trial. 4732. Costs must be included in the judg- ment. 4733. Abstract of judgment. 4734. Abstract may be filed and docketed in District Clerk's office. 4735. Effect of docketing. 4736. Judgment not a lien unless abstract is docketed. Section 4725. Judgments upon confession may be en- tered in any Justice's Court specified in the confession, in any amount of which the court has jurisdiction. Sec. 4726. Judgment that the action be dismissed, with- out prejudice to a new action, may be entered with costs, in the following cases: 1. When the plaintiff voluntarily dismisses the action be- fore it is finally submitted; 2. When he fails to appear at the time specified in the summons, or at the time to which the action has been post- poned, 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 al- lowed by the court; 4. When it is objected at the trial, and appears by the evidence, that the action is brought in the wrong county, or precinct, or city; but if the objection is taken and overruled, it is cause only of reversal on appeal, and does not other- wise invalidate the judgment; if not taken at the trial it is waived. Sec. 4727. When a trial by jury has been had, judgment must be entered by the court at once, in conformity with the verdict. Sec. 4728. When the trial is by the court, judgment must be entered at the close of the trial. Sec. 4729. The judgment must be entered substantially in the form required by this Code. When the judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, the fact that the defendant is so subject must be stated in the judgment. Sec. 4730. When the amount found due to either party exceeds the sum for which the court is authorized to enter judgment, such party may remit the excess, and judgment may be rendered for the residue. Sec. 4731. 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 in excess of the offer, he cannot recover costs; but costs must be adjudged against him, and if he re- cover, be deducted from his recovery. The offer and failure to accept cannot be given in evidence, nor affect the recov- ery otherwise than as to costs. 530 §§ 4732-4742 EXECUTIONS FROM JUSTICES' COURTS. Tit. XII. Ch.IX. Sec. 4732. The court must tax and include in the judg- ment the costs allowed by law to the prevailing party. Sec. 4733. The Probate Court or Justice of the Peace, on the demand of a party in whose favor judgment is ren- dered, must give him an abstract of the judgment in the fol- lowing form (filling blanks according to the facts) : Territory of Idaho, County of , - plaintiff, vs. , defendant, In Probate Court of before Costs must be included in the judgment. Abstract of judgment. County, (or, In Justice Court, Justice of the Peace, of Precinct, or City,)- , 18 , (insert date of abstract). Judgment entered for plaintiff (or defendant) for dol- lars, on the day of , 188 — . I certify that the foregoing is a correct abstract of a judg- ment rendered in said action in my court, or (as the case may be) in the Court of , Justice of the Peace, as appears by his docket, now in my possession, as his successor in office, signed by the Clerk of the Probate Court and attested by its seal, or signed by the Justice, as the case may be. Sec. 4734. The abstract may be filed and docketed in the office of the District Clerk of the county in which the judgment was rendered, and must be docketed in the judg- ment docket of the District Court. The time of the receipt of the abstract by the Clerk must be noted by him thereon, and entered in the docket. Sec. 4735. From the time of docketing in the District Clerk's office, execution may be issued thereon by the Dis- trict Clerk to the Sheriff of any county in the Territory, in the same manner and with like effect as if issued on judg- ments of the District Courts. Sec. 4736. A judgment rendered in a Probate or Jus- tice's Court creates no lien upon any lands of the defendant, unless such an abstract is filed and docketed in the office of the Clerk of the District Court of the county in which the lands are situated. When so filed and docketed, such judg- ment is a lien upon the lands of the judgment debtor situa- ted in that county not exempt from execution owned by him at the time, or which he may afterwards, and before the lien expires acquire. The lien continues for two years, unless the judgment be previously satisfied. 9* Punishments for contempts . The conviction must be entered in the docket. 9 o lf n 9"/r Entries therein primary evi- dence of the fact. An index to the docket must be kept. Dockets must be delivered to successor. Proceedings when office be- comes vacant and before a successor is appointed. May issue execution or other process upon the docket of his predecessor. Successor of a justice, who shall be deemed. If two justices might be deemed successors. Sec. 4760. The several particulars of the last section specified must be entered under the title of the section to which they relate, and (unless otherwise in this Code pro- vided), at the time when they occur. Such entries in a Pro- bate or Justice's docket, or a transcript thereof, certified by the Clerk or Justice, or his successor in office, are primary evidence of the facts so stated. Sec. 4761. The Clerk of the Probate Court and every Justice of the Peace must keep an alphabetic^? ' 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 plaintiffs must be entered in the index, in the alphabetical order of the first letter of the family name. Sec. 4762. Every Probate Judge and every Justice of the Peace, upon the expiration of his term of office, must de- posit with his successor 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 pub- lic records. Sec. 4763. If the office of Justice becomes vacant by his death or removal from the precinct or city or otherwise, before his successor 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 precinct, to be by him delivered to the successor of such justice. If there is no other Justice in the precinct, then the docket and papers of such Justice must be deposited in the office of the County Recorder of the county, to be by him delivered to the succes- sor in office of the Justice. Sec. 4764. Any Probate Judge having the docket of his predecessor, and 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 coun- ty, or the change of the boundary between two counties, any Justice 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. Sec. 4766. The Justice elected to fill a vacancy is the successor of the Justice whose office became vacant before the expiration of a full term. When a full term expires, the same or another person elected to take office in the same precinct or city, from that time is the successor. Sec. 4766. When two or more Justices are equally en- titled, under the last section, to be deemed the successors in office of the Justice, the Probate Judge, must by a certificate subscribed by him and filed in the office of the County Rec- order, designate which Justice is the successor of a Justice going out of office, or whose office has become vacant. 534 §§ 4771-4778 PROBATE AND JUSTICES' COURTS. Tit. XII. Ch. XII. CHAPTER XII. General Provisions Relating to Probate and Justices' Courts. Section 4774. In case of disability of Justice, an- other Justice may attend on his behalf. May require security for costs. Who entitled to costs. What provisions of Code applicable. Deposit. 4775. 4776. 4777. 4778. Section 4771. Probate Judge or Justices may is- sue subpoenas and final process to any part of the county. 4772. Blanks must be filled in all papers issued by a Probate Judge or Justice, except subpoenas. 4773. Judge or Justice to receive all moneys collected and pay same to parties. Section 477 1 . Subpoenas out of any Probate or Justice's Court, and final process on any judgment recovered therein, may be issued to any part of the county. Sec. 4772. The summons, execution, and every other paper made or issued by a Probate Court or Justice, except a subpoena, must be issued without a blank left to be filled by another, otherwise it is void. Sec. 4773. Probate Judges and Justices of the Peace must receive from the Sheriffs or Constables of their coun- ty, 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. Sec. 4774. 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 precinct or city 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 entry of proceedings before the attend- ing Justice subscribed 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 sum- mons was returnable may resume jurisdiction. Sec. 4775. Probate and Justices' Courts may in all cases require a deposit of money or an undertaking, as se- curity for costs of court, before issuing a summons. Sec. 4776. The prevailing party in Probate and Justices' Courts is entitled to costs of the action and also of any pro- ceedings taken by him in aid of an execution, issued upon any judgment recovered therein. Sec. 4777. The Probate Courts in the exercise of their civil jurisdiction, and Justices' Courts, being courts of peculiar and limited jurisdiction, only those provisions of this Code which are, in their nature, applicable to the or- ganization, powers, and course of proceedings in these courts, or which have been made applicable by special pro- visions in this Code, are applicable to these courts and the proceedings therein. Sec. 4778. In all civil cases arising in Probate and Justices' Courts, where an undertaking is required by this Code, a deposit with the court of a sum of money equal to the amount of the required undertaking, may be received and held by the court in place of said undertaking. 535 Subpoenas and final process issued to any part of county. Blanks must be filled in all papers except subpoenas. Judge or justice to receive all moneys collect- ed, and pay same to parties . In case of disability of justice, another justice may attend in his behalf. ?'? fXo ?*-/ d 7^2 Security for costs. Costs. Provisions of code applicable. 7^3 Deposit in lieu of undertaking. Tit. XIII. Ch. I- II. APPEALS. §§ 4800-4801 TITLE XIII. OF APPEALS IN CIVIL ACTIONS. fa ?37 fJ? Judgment and orders may be reviewed. Orders made out of court, and without notice, may be reviewed by the judge. Party aggrieved may appeal, names of parties. CHAPTER I. Appeals in General. Section 4802 . Party aggrieved may appeal. Names of parties. Section 4800. Judgment and orders may be re- viewed. 4801 . Orders made out of court, without notice, may be reviewed by the Judge . Section 4800. A judgment or order, in a civil action, ex- cept when expressly made final, may be reviewed as pre- scribed in this Code, and not otherwise. Sec. 4801. 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. Sec. 4802. Any party aggrieved may appeal in the cases prescribed in this Code. The party appealing is known as the appellant, and the adverse party as the respondent. pf Within what time an appeal may be taken . CHAPTER II. Appeals to Supreme Court from District Court. Section 4807. Within what time appeal may be taken. Appeal, how taken. Undertaking or deposit on appeal. Undertaking on appeal from a mon- ey judgment. Appeal from a judgment for a de- livery of documents. Appeal from a judgment directing the execution of a conveyance, etc. Undertaking on appeal concerning real property. Stay of proceedings . The security on appeal may be limited in the case of an executor, etc . Undertaking may be in one instru- ment or several Justification of sureties on under- taking on appeal. Undertakings incases not specified. 4808. 4809. 4810. 4811 4812. 4813. 4814. 4815. 4816. 4817. Section 4818. What papers to be used on an ap- peal from the judgment. What papers used ou appeals from orders, or from judgments render- ed on appeal. What papers to be used on an ap- peal from an order granting or re- fusing a new trial. Copies and undertakings, how cer- tified. When an appeal may be dismissed. Effect of dismissal. What may bt. reviewed on an appeal from judgment. Remedial powers of an Appellate Court. On judgment on appeal, remittitur must be certified to the Clerk of the Court below. 4819. 4820. 4821. 4822. 4823. 4824. 4825. 4826. Section 4807. An appeal may be taken to the Supreme Court from a District Court: 1. From a final judgment in an action or special proceed- ing commenced in the court in which the same is rendered, within one year after the entry of judgment. But an ex- ception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment; 2. From a judgment rendered on an appeal from an infe- rior court, within ninety days after the entry of such judg- ment; 3. From an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an 536 5§ 4808-4810 APPEALS. Tit. XIII. Ch. II A.ppeal, how taken . Undertaking or deposit on appeal, amended. order refusing to grant or dissolve an injunction; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of the place of trial; from any special order made after final judgment, and from an interlocutory judgment in actions for partition of real property, within sixty days after the order or inter- locutory judgment is made and entered on the minutes of the court or filed with the Clerk. Sec. 4808. An appeal is taken by filing with the Clerk of the Court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the Clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing. Sec. 4809. The undertaking on appeal must be in writ- ing, and must be executed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding three hundred 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; Provided, That when more than one appeal in the same action, whether from the judg- ment and an appealable order or orders, or from two or more appealable orders, are taken at the same time, but one such undertaking or deposit for damages and costs need be filed or made. Sec. 4810. If the appeal be from a judgment or order directing the payment of money, it does not stay the execu- tion of the judgment or order, unless a written undertaking judgment be executed on the part of the appellant by two or more sureties to the effect that they are bound in double the amount named in the judgment or order; that if the judg- ment or order 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 order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the ap- peal, and that if the appellant does not make such payment within thirty days after the filing of the remittitur from the Supreme Court in the court from which the appeal is taken, judgment may be entered on motion of the respondent, in nis favor against the sureties, for such amount together with the interest that may be due thereon, and the damages and costs which may be awarded against the appellant upon the appeal. If the judgment or order appealed from, be for a greater amount than two thousand dollars, and the sureties do not state in their affidavits of justification ac- companying the undertaking, that they are each worth the sum specified in the undertaking, the stipulation may be that the judgment to be entered against the sureties shall be for such amounts only as in their affidavits, they may state they are severally worth, and judgment may be entered against 537 Y6 ? y / Undertaking on appeal from a money 7 V -<2_ Tit. XIII. Ch.lL APPEALS. 4811-4814: (JV3 Appeal from a judgment for delivery of documents. ?yy 9vj Appeal from a judgment directing the execution of a conveyance, etc. Undertaking on appeal concern- ing real property . fv£ the sureties by the court from which the appeal is taken pursuant to the stipulations herein designated. When the judgment or order appealed from, is made payable in a specified kind of money or currency, the judgment entered against the sureties upon the undertaking, must be made payable in the same kind of money or currency. Sec. 48 11. If the judgment or order appealed from direct the assignment or delivery of documents or personal prop- erty, the execution of the judgment or order cannot be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or re- ceiver as the court or Judge thereof may appoint; or unless an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the court, or Judge thereof, may direct, to the effect that the appel- lant will obey the order of the Appellate Court upon the ap- peal. Sec. 4812. If the judgment or order appealed from, direct the execution of a conveyance or other instrument, the execution of the judgment or order cannot be stayed by the appeal until the instrument is executed and deposited with the Clerk with whom the judgment or order is entered, to abide the judgment of the Appellate Court. Sec. 4813. If the judgment or order appealed from, di- rect the sale or delivery of possession of real property the execution of the same cannot be stayed, unless a written undertaking be executed on the part of the appellant with two or more sureties, to the effect that during the posses- sion 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 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 or order, not exceeding a sum to be fixed by the Judge of the court by which the judgment was rendered or order made, and which must be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a defi- ciency arising upon the sale, the undertaking must also pro- vide for the payment of such deficiency. Sec. 4814. Whenever an appeal is perfected, as pro- vided in the preceding sections of this chapter, it stays all further proceedings in the court below, upon the judgment or order appealed from, or upon the matters embraced therein , and releases from levy property which has been levied upon under execution issued upon such judgment; but the court below may proceed upon any other matter embraced in the action, and not affected by the order appealed from. And the court below may, in its discretion, dispense with or limit the security required by this chapter, when the appel- lant is an executor, administrator, trustee, or other person acting in another's right. An appeal does not continue in force and attachment, unless an undertaking be executed and filed on the part of the appellant, by at least two sure- ties, in double the amount of the debt claimed by him; that the appellant will pay all costs and damages which the re- spondent may sustain by reason of the attachment, in case the order of the court below be sustained; and unless, with- 538 Stay of proceedings. The security on appeal may be limited when appellant is executor, etc. 4815-4821 APPEALS. Tit. XIII. Ch. II. Undertaking may be in one instrument or several. Justification of sureties on undertaking on appeal. Undertakings in O I/: O cases not specified. in twenty days after the entry of the order appealed from, such appeal be perfected. Sec. 4815. The undertakings prescribed by sections 4809, 4810, 4811 and 4813, may be in one instrument or sev- eral, at the option of the appellant. Sec. 4816. The adverse party may except to the suffi- ciency of the sureties to the undertakings mentioned in sec- tions 4809, 4810, 4811 and 4813, at any time within thirty days after the filing of such undertaking; and, unless they or other sureties, within twenty days after the appellant has been served with notice of such exception, justify before a Judge of the court below, or the Probate Judge of the coun- ty, upon five days' notice to the respondent, of the time and place of justification, execution of the judgment, order, or decree appealed from is no longer stayed; and in all cases where an undertaking is required on appeal by the provis- ions of this Title, a deposit in the court below of the amount of the judgment appealed from, and three hundred dollars, in addition, is equivalent to filing the undertaking; and in all cases the undertaking or deposit may be waived by the written consent of the respondent. Sec. 4817. Incases not provided for in sections 4810, 4811, 4812 and 4813, the perfecting of an appeal by giving the undertaking, or making the deposit mentioned in sec- tion 4809, stays proceedings in the court below, upon the judgment or the order appealed from, except where it di- rects the sale of perishable property; in which case the court below may order the property to be sold and the proceeds thereof to be deposited, to abide the judgment of the appel- late court. And except, also, where it adjudges the defend- ant guilty of usurping or intruding into, or unlawfully hold- ing a public office, civil or military, within this Territory. And except, also, where the order grants, or refuses to grant, a change of the place of trial of an action. Sec. 4818. In an appeal from a final judgment, the ap- pellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case, upon which the appellant relies. Any statement used on motion for a new trial, or settled after decision of such motion, when the motion is made upon the minutes of the court, as provided in section 4443, or any bill of exceptions settled, as provided in sections 4429 or 4430, or used on motion for a new trial, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing the new trial. Sec. 4819. On appeal from a judgment rendered on an appeal, or from an order, except an order granting or refus- ing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order ap- Eeaed from, and of papers used on the hearing in the court elow. Sec. 4820. On an appeal from an order granting or re- fusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the order appealed from, and of the papers designated in section 4443 of this Code. Sec. 4821. The copies provided for in the last three sections must be certified to be correct by the Clerk or the attorneys, and must be accompanied with a certificate of 539 9 y 7 ?K> What papers to be used on an appeal from the judgment. ?' Papers used on appoal from judgment on appeal, or order. What papers used on appeal from or«l granting or refusing oew ferial. Copies and undertakings how certifwi. 9* Tit. XIII. Ch. FIT. APPEALS. §§ 4822-4831 w ^s^ 3 'vtrife CHAPTER III. Appeals from Probate Courts to District Court in Probate Matters. Section -4833. Acts of acting administrator, etc., not invalidated by reversal of or- der appointing him. Section 4831. When may be taken. 4832. Executors aud administrators not required to give undertaking on appeal. Section 4831. An appeal may be taken to the District Court of the county from a judgment or order of the Pro- bate Court in probate matters: 1. Granting, refusing or revoking letters testamentary, or of administration, or of guardianship; 540 §$ 4832-4839 APPEALS. TIL XIII. Ch.IV. 2. Admitting, or refusing to admit, a will to probate; 3. Against or in favor of the validity of a will, or revok- ing the probate thereof; 4. Against or in favor of setting apart property, or mak- ing an allowance for a widow or child; 5. Against or in favor of directing the partition, 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; 8. Confirming report of appraiser setting apart the home- stead. Sec. 4832. When an executor, administrator or guar- dian who has given an official bond, appeals from a judg- ment or order of the Probate Court made in the proceedings had upon the estate of which he is administrator, executor, or guardian, his official bond stands in the place of an un- dertaking on appeal, and the sureties therein are liable as on such undertaking. Sec. 4833. When the order or decree appointing an executor, 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, administrator, or guardian, if he have qual- ified, are as valid as if such orderjor decree had been af- firmed. Executors and administrators not required to give undertak- ing on appeal. Acts of acting executor, etc., not invalidated by reversal of order appointing him. Cj & cT /*. 1* O Appearance. / fl / V Notices after appearance . Service on non- residence. When a party has an attorney, service shall be on such attorney. Proceeding pro- visions not to apply to pro- ceeding to bring party into contempt. Service by telegraph . /J/^ l&f& /o/y Tit. XIV. Ch. VI. OF COSTS. §§ 4900-490* pressed in the telegraphic copy by the letters '*L. S." or by the word "seal." ('0U /' lv «s Compensation of attorneys costs to parties. When allowed of course to plaintiff. jni Several actions brought on a single cause of action can carry costs in but one. a\^ H r~ Defendant's costs allowed in certain cases. Costs, when in the discretion of the court. CHAPTER VI. Of Costs. SECTIO] 4900. 4901. 4902. 4903. 4904. 4905. 4906. 4907. 4908. Compensation of attorneys. Cost to parties. When allowed of course to plaintiff. Several actions brought on a sicgle cause of action can carry costs in but one. Defendant's costs must be allowed of course, in certain cases. Costs, when in the discretion of the court. When the several defendants are not united in interest, costs may be severed. Costs of appeal discretionary with the court in certain cases. Referee s fees. Continuance, costs may be imposed as condition of. Section 4909. Costs when a tender is made before suit brought. Costs in action by or against an ad- ministrator, etc. Costs on review other than by ap- peal. Filing of an affidavit to bill of costs. Costs on appeal, how claimed and recovered. Interest and cost must be included by the Clerk in the judgment. When plaintiff is a non-resident or foreign corporation, defendant may require security for costs. If such secui'ity be not given, the action may be dismissed. Costs when Territory is a party. Costs when county is a party. 4910. 4911. 4912. 4913. 4914. 4915. 4916. 4917. 4918. Section 4900. The measure and mode of compensation of attorneys and counselors at law is left to the agreement express or implied, of the parties; but parties to actions or proceedings are entitled to costs and disbursements, as here- inafter provided. Sec. 4901. Costs are allowed of course to the plaintiff, upon a judgment in his favor, in the following cases: 1. In an action for the recovery of real property; 2. In an action to recover the possession of personal prop- erty where the value of the property amounts to one hun- dred dollars or over; such value shall be determined by the jury, court, or referee, by whom the action is tried; 3. In an action for the recovery of money or damages, when plaintiff recovers one hundred dollars or over; 4. In a special proceeding; 5. In an action which involves the title or possession of real estate, or the legality of any tax, impost, assessment toll, or municipal fine. Sec. 4902. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action, against several parties who might have been joined as defendant in the same action, no costs can be allowed to the plaintiff in more than one of such ac- tions, which may be at his election, if the parties proceeded against in the other actions were at the commencement of the previous action openly within this Territory, but the disbursements of the plaintiff must be allowed to him in each action. Sec. 4903. Costs must be allowed, of course, to the de- fendant upon a judgment in his favor in the actions men- tioned in section 4901, and in special proceedings. Sec. 4904. In other actions than those mentioned in section 4901, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same or ad- verse sides, in the discretion of the court, but no costs can be allowed in an action for the recovery of money or dam- ages, when the plaintiff recovers less than one hundred dol- lars, nor in an action to recover the possession of personal 548 £S 4905-4912 OF COSTS. Tit. XIV. Ch. VI. When the several defend- ants are not united in inter- est, costs may be severed. Costs of appeal discretionary with the court, in certain cases, amended. Referee's fees. / 0 ^- q Continuance, costs may be imposed as condition of. Costs when a tender is made before suit brought. property when the value of the property is less than one hundred dollars. Sec. 4905. When there are several defendants in the actions mentioned in section 4901, not united in interest, and making separate defenses by separate answers, and plaintiff fails to recover judgment against all, the court must award costs to such of the defendants as have judgment in their favor. Sec. 4906. In the following cases the costs of appeal are in the discretion of the court : 1. When a new trial is ordered; 2. When a judgment is modified. In all other cases the prevailing party shall recover costs, including his costs be- low when the appeal is to the District Court. Sec. 4907. The fees of referees are five 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 com- pensation, and thereupon such rate shall be allowed. Sec. 4908. 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. Sec. 4909. When in an action for the recovery of money only, the defendant alleges in his answer that be- fore the commencement of the action be tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court, for plaintiff, the amount so tendered, and the allegation be found to be true, the plain- tiff cannot recover costs, but must pay costs to the defendant. Sec. 4910. In an action prosecuted or defended by an executor, administrator, trustee of express trust, or a per- son expressly authorized by statute, costs may be recovered as in action by and against a person prosecuting or defend- ing in his own right; but such costs must, by the judgment, be made chargeable only upon the estate, fund or party rep- resented, unless the court directs the same to be paid by the plaintiff or defendant, personally for mismanagement or bad faith in the action or defense. Sec. 49 1 1 . When the decision of a court of inferior jur- isdiction in a special proceeding is brought before a court of higher jurisdiction for a review, in any other way than by ap- peal,the same costs must be allowed as in cases on appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case. Sec. 4912. The party in whose favor the judgment is rendered, and who claims his costs, must deliver to the Clerk within five days after the verdict or notice of the decision of the court or referee, a memorandum of the items of his costs and necessary disbursements in the action or proceed- ing, which memorandum must be verified by the oath of the party or his attorney or agent, or by the clerk of his at- torney, stating that to the best of his knowledge and belief, the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding. A party dissatisfied with the costs claimed, may, within three days after the filing of the bill of costs, file a motion to have the same taxed by the court in which the judgment was ren- dered, or by the Judge thereof at chambers. 549 fQl * (oi 7 / <>?-f /o J \t ^ ^ > tA* >oc\^> ^ If an essential question of fact is raised, the court may order a jury trial. The applicant may demur to the answer, or countervail it by proof. Motion for new trial, where made. Clerk must transmit verdict to court where motion is pend- ing, after which hearing shall be had on motion. If no answer be made, or if it raise immaterial issues, proceedings. If applicant succeed, he may have damages, costs, and a peremp- tory mandate. Service of the writ. Penalty for disobedience of writ. Sec. 4982. If an answer be made which raises a ques- tion as to a matter of fact essential to the determination of the motion and affecting the substantial rights of the par- ties, and upon the supposed truth of the allegation of which the application 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 must be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained in case they find for him. Sec. 4983. 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. Sec. 4984. The motion for new trial must be made in the court in which the issue of fact is tried. Sec. 4985. If no notice of a motion for a new trial be given, or if given, the motion be denied, the clerk, within five days after rendition of the verdict or denial of the mo- tion, must transmit to the court in which the application for the writ is pending, a certified copy of the verdict attached to the order of trial; after which either party may Dring on the argument of the application, upon reasonable notice to the adverse party. Sec. 4986. 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 puts in issue immaterial state- ments, not affecting the substantial rights of the parties, the court must proceed to hear or fix a day for hearing the argument of the case. Sec. 4987. 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 by the court or referee, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded without delay. Sec. 4988. The writ must be served in the same man- ner as a summons in a civil action, except when otherwise 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 or body was in session or not. Sec. 4989. When a peremptory mandate has been is- sued and directed to any inferior tribunal, corporation, board or person, if it appear to the court that any menberof such tribunal, corporation or board, or such person upon whom the writ has been personally served, has, without 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. 556 £§ 4994-5000 WEIT OF PROHIBITION.-CHAMBERS. Till. Ch.III-IV CHAPTER III. Writ of Prohibition. Section 4997. Certain provisions of the preceding chapter applicable. Section 4994. Prohibition defined. 4995 . Where and when issued. 4996. Writ may be alternative or per- i emptory. Form of. ! Section 4994. The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceed- ings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. Sec. 4995. It may be issued by any court except Pro- bate or Justices' Courts, to an inferior tribunal, or to a corporation, board, or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It is issued upon affidavit, on the applica- tion of the person beneficially interested. Sec. 4996. The writ must be either alternative or per- emptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party to desist or refrain from further pro- ceedings in the action or matter specified therein, until the further order of the court from which it is issued, and to show cause before such court, at a specified time, and place, why such party should not be absolutely restrained from any further proceedings in such action or matter. The per- emptory 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. Sec. 4997. The provisions of the preceding sections from 4980 to 4089, both inclusive, apply to the proceedings for writ of prohibition. Prohibition 1 1 /I ^L defined. // ( h When and where issued. //0"3 Writ may be alternative or lit) peremptory. i Certain provis- ions of the pre- ceding chapter applicable. //Ofr CHAPTER IV. These Writs May Issue and be Heard at Chambers. Section 5000. Writs of review, mandate, and prohibition may issue and be heard at chambers. Section 5000. Writs of review, mandate, and prohibition may be issued by any of the Justices of the Supreme Court, or by any District Judge, in vacation, and may, in the dis- cretion of the Justice or Judge issuing the writ, be made re- turnable and a hearing thereon be had in vacation. 557 Writs of review, mandate, and prohibition ma3 issue and be heard at chambers. ffPSi Tlt.L Ch. V. KULES OF PRACTICE AND APPEALS. §§5005-5000 CHAPTER V. Rules of Practice and Appeals. Section I Section 5005. Certain provisions applicable. | 5000. Same. \ ft A certain Section 5005. Except as otherwise provided in this Title, ar°iicawe ^e Provisi°ns °f this Code relative to civil actions in the District Court, are applicable to and constitute the rules of practice in the proceedings mentioned in this Title, same. Sec. 5006. The provisions of this Code relative to new trials in and appeals from the District Court, except in and so far as they are inconsistent with the provisions of this Title, apply to the proceedings mentioned in this Title. 558 §§ 5026-5030 OF CONTESTING CERTAIN ELECTIONS. tu.il TITLE II. OF CONTESTING CERTAIN ELECTIONS. Section 5026. Who may contest, and grounds of contest. 5027. Irregularity and improper conduct of Judges. 5028. When not to annul elections. 5029. Illegal votes, when not to vitiate election. 5030. Proceedings on contest. 5031. Statement of cause of contest. 5032. Statement of cause of contest. 5033. Clerk to issue citation to respond- ent. Suction 5034. Witnesses, attendence of, how en- forced. 5035. Power of court. 5030. Rules to govern court in trial of con- test. 5037. Court may declare who was elected. 5038. Fees of officers. 5039. Costs. 5040. Appeal. 5041. When election void and office va- cant. 5042. District offices. Section 5026. Any elector of a county, precinct, or city, may contest the right of any person declared elected to an office to be exercised therein, for any of the following grounds: 1. For malconduct on the part of the Board of Judges, or any member thereof; 2. When the person whose right to the office is con- tested was not, at the time of the election, eligible to such office; 3. When the person whose right is contested has given to any Elector or Inspector, Judge, or Clerk of the elec- tion, any bribe or reward, or has offered any such bribe or reward for the purpose of procuring his election, or has com- mitted any other offense against the elective franchise de- fined by law; 4. On account of illegal votes. • Sec. 5027. No irregularity or improper conduct in the proceedings of the Judges, or any of them, is such malcon- duct as avoids an election, unless the irregularity or im- proper conduct is such as to procure the person whose right to the office is contested, to be declared elected, when he had not received the highest number of legal votes. Sec. 5028. When any election held for an office exer- cised in and for a county is contested on account of any malconduct on the part of the Board of Judges of any pre- cinct election, or any member thereof, the election cannot be annulled and set aside upon any proof thereof, unless the rejection of the vote of such precinct, or precincts, would change the result as to such office in the remaining vote of the county. Sec. 5029. Nothing in the fourth ground of contest is to be so construed as to authorize an election to be set aside on account of illegal votes, unless it appear that a number of illegal votes has been given to the person whose right to the office is contested, which, if taken from him, would re- duce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person. Sec. 5030. When an elector contests the right of any person declared elected to such office, he must, within forty days after the return day of the election, file with the Clerk 559 Who may contest aud grounds of contest. Irreg impr duct when to elections. When not to. Illegal votes when not to vitiate electiou. nf Proceedings on contest. Iftt Tit. II. OF CONTESTING CERTAIN ELECTIONS. 8§ 5031-5038 inv /! 2> 2> Judgment may be confessed for debt due, or contingent liability. Statement in writing and form thereof. 1>A Filing state- ment and enter- ing judgment. \\ %h* How, in probate and justices' courts. CHAPTER I. Confession of Judgment Without Action. Section 5060. Judgment may be confessed. 5061. Statement in writing and thereof. form Section 5062. Piling statement and entering judg- ment. 5063. How, in Probate and Justices r Courts . Section 5060. A judgment by confession may be en- tered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. Such judgment may be entered in any court having jurisdiction for like amounts. Sec, 506 1 . A statement in writing must be made, signed by the defendant and verified by his oath, to the following effect: 1. It must authorize the entry of judgment for a speci- fied sum; 2. If it be for money due or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefor is justly due or to become due; 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts con- stituting the liability, and show that the • sum confessed therefor does not exceed the same. Sec. 5062. The statement must be filed with the Clerk of the Court in which the judgment is to be entered, who must endorse upon it and enter in the judgment book, a judgment of such court for the amount confessed, with five dollars costs. The statement and affidavit with the judg- ment indorsed, thereupon becomes the judgment roll. Sec. 5063. In a Probate or Justices' Court, where the court has the authority to enter the judgment, the statement may be filed with the court or Justice, who must thereupon enter in his docket a judgment of his court for the amount confessed, with three dollars costs. If a transcript of such judgment be filed with the District Clerk, a copy of the statement must be filed with it. 0 '& 9) Controversy, how submitted without action. CHAPTER II. Submitting a Controversy Without Action. Section 5070. Judgment may be enforced or ap- pealed from . Section 5068. Controversy, how submitted with- out action. 5069. Judgment on, as in other cases. Section 5068. 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 contro- versy depends, and present a submission of the same to any court which would have jurisdiction if an action had been 562 §§ 5069-5080 DISCHARGE OF PERSONS IMPRISONED. Tit. III. Ch. 111. brought; but it must appear by affidavit, that the contro- versy is real and the proceedings in good faith, to deter- mine the rights of the parties. The court must thereupon hear and determine the case and render judgment thereon, as if an action where depending. Sec. 5069. Judgment must be entered in the judgment Judgment on, as book as in other cases, but without costs for any proceeding {,ut wSiout68 //n prior to the trial. The case, the submission and a copy of costspriMto / ' the judgment constitute the judgment roll. notice of triaI- Sec. 5070. The judgment may be enforced in the same Judgment may manner as if it had been rendered in an action, and is in the be enfor<*dor //y Q l • j i i * appealed from / / same manner subject to appeal. as in an action. CHAPTER III. Discharge of Persons Imprisoned on Civil Process. Section 5075. Persons confined may be discharged. Notice of application. Service of notice. Examination before Judge . Interrogatories may be in writing. Oath to be administered. Order of discharge. 5076 5077. 5078. 5079. 5080. 5081. Section 5082. If may 5083. 5084. 5085. 5086. oi not discharged, prisoner again apply, when. Discharge, final. Judgment remains in force . Plaintiff may order discharge prisoner. Plaintiff to advance funds for sup- port of prisoner. Section 5075. Any person confined in jail on an execu- tion issued on a judgment rendered in a civil action, must be discharged therefrom upon the conditions in this chapter specified. Sec. 5076. Such person must cause a notice in writing to be given to the plaintiff, his agent or attorney, that at a certain time and place he will apply to the Judge of the Dis- trict Court of the county in which such person may be con- fined; or, in case of his absence or inability to act, to the Judge of the Probate Court of the county in which such per- son may be imprisoned, for the purpose of obtaining a dis- charge from his imprisonment. Sec. 5077. Such notice must be served upon the plain- tiff, his agent or attorney, one day at least before the hear- ing of the application. Sec. 5078. At the time and place specified in the notice, such person must be taken before such Judge, who must ex- amine him under oath concerning his estate, and property, and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed, or any part there- of, and such Judge may also hear any other legal and per- tinent evidence that may be produced by the debtor or the creditor. Sec. 5079. The plaintiff in the action may, upon such examination, propose to the prisoner any interrogatories Eertinent to the inquiry, and they must, if required by him, e proposed and answered in writing and the answer must be signed and sworn to by the prisoner. Sec. 5080. If, upon the examination, the Judge is sat- isfied that the prisoner is entitled to his discharge, he must administer to him the following oath, to wit: "I, do solemnly swear that I have not any estate, real or per- sonal, to the amount of fifty dollars, except such as is by law exempted from being taken in execution; and' that I 563 Persons con fined may be discharged Notice of application . Service oi notice. >///6 Examination before judge t llljio Interrogatories may be in writing. Oath to be administered. /// //', Tit. III. Ch. IV. POSSESSION OF REAL PROPERTY. §§ 5081-5091 Dc[ fr l!^ »* v -% Order of discharge. \* ^ <\ If not dis- charged, prison- er may again apply, when. Discharge final. have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the sameto my use, or to hinder, delay, or defraud my creditors, so help me God." Sec. 5081. After administering the oath the Judge must issue a order that the prisoner be discharged from cus- tody, and the officer upon the service of such order, must discharge the prisoner forthwith, if he be imprisoned for no other cause. Sec. 5082. If such Judge does not discharge the prison- er, he may apply for his discharge at the end of every suc- ceeding thirty days, in the same manner as above provided and the same proceedings must thereupon be had. Sec. 5083. The prisoner after being so discharged, is forever exempted from arrest or imprisonment for the same debt, unless he be convicted of having willfully sworn false- ly upon his examination before the Judge, or in taking the oath before prescribed. Sec. 5084. The judgment against any prisoner who is discharged, remains in full force against any estate which may then or at any time afterward during the life of the judgment belong to him, and the plaintiff may take out a new execution against the goods and estate of the prisoner in like manner as if he had never been committed. Sec. 5085. The plaintiff in the action may at any time order the prisoner to be discharged, and he is not thereafter liable to imprisonment for the same cause of action. Sec. 5086. Whenever a person is committed to jail on an execution issued on a judgment recovered in a civil ac- tion, the creditor, his agent or attorney must advance to the jailer on such commitment, sufficient money for the board of the prisoner at the rate provided by law, for one week, and must make the like advance for every successive week of his imprisonment; and in case of failure to do so, the jailer must forthwith discharge such prisoner from custody, and such discharge has the same effect as if made by order of the creditor. Judgment remains in force. Plaintiff may order discharge of prisoner, who shall not there- after be liable, etc. Plaintiff to advance funds for support of prisoner . CHAPTER IV. Summary Proceedings for Obtaining Possession of Real Property. Section 5091. Forcible entry defined. 5092. Forcible detainer defined. 5093. Unlawful detainer defined. 5094. Service of notice. 5095. Courts have jurisdiction. 5090. Same. 5097. Same. 5098. Parties defendant. 5099. Parties generally. 5100. Complaint and summons. 5101. .Arrest. Section 5102. Judgment by default. 5103. Trial by jury. 5104. Showing required. 5 105 . Complaint must be amended in cer- tain cases. 5106. Verdict and judgment. 5107. Verification of complaint and an- swer. 5108. Effect of appeal uponjthe judgment, 5109. Rules of practice. Appeals, how taken, etc. Forcible entry defined. Section 5091. Evey person is guilty of a forcible entry who either: 1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or, 2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession. 564 §§5092-5093 POSSESSION OF REAL PROPERTY. Tit. 111. Ch. IV. Sec. 5092. Every person is guilty of a forcible detainer er°dCefiieed)Ula // Lr who either: 1. By force, or by menaces and threats of violence, un- lawfully holds and keeps possession of any real property, whether the same was acquired peacefully or otherwise; or, 2. Who, in the night time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. The occupant of real property, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed pos- session of such lands. Sec. 5093. A tenant of real property, for a term less unlawful de- than life, is guilty of an unlawful detainer: amended fined' Jf *° ' 1. When he continues in possession, in person or by sub- tenant, of the property, or any part thereof, after the expir- ation of the term for which it is let to him, without the per- mission of his landlord, or the successor in estate of his landlord, if any there be; but in case of a tenancy at will, it must first be terminated by notice, as prescribed in the Civil Code; 2. Where he continues in possession, in person or by sub- Amended, tenant, without permission of his landlord, or the successor in estate of his landlord, if any there be, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, in writ- ing, requiring its payment, stating the amount which is due, or possession of the property, shall have been served upon him, and if there be a sub-tenant in actual occupation of the premises, also upon such sub-tenant. Such notice may be served at any time within one year after the rent be- comes due. In all cases of tenancy upon agricultural lands, where the tenant has held over and retained possession for more than sixty days after the expiration of his term with- out any demand of possession or notice to quit by the land- lord, or the successor in estate of his landlord, if any there be, he shall be deemed to be holding by permission of the landlord, or the successor in estate of his landlord, if any there be, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during said year, and such holding over ' for the period aforesaid shall be taken and construed as a consent on the part of a tenant to hold for another year; 3. Where he continues in possession in person, or by sub- tenants, after a neglect or failure to perform other condi- tions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than the one for payment of rent, and three days' notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him, and if there be a sub- tenant in actual occupation of the premises, also upon such sub-tenant. Within three days after the service of the notice, the tenant, or any sub-tenant' in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions 565 Tit III. Ch.IV. POSSESSION OF REAL PROPERTY. §§ 5094-5098 I' l*V Service of notice. w o \\ VoH or covenants of the lease, or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture; provided if the covenants and conditions of the lease, vio- lated by the lessee, cannot afterward be performed, then no notice, at last prescribed herein, need be given to said lessee or his sub-tenant demanding the performance of the vio- lated covenant or conditions of the lease. A tenant may take proceedings similar to those prescribed in this chapter, to obtain possession of premises let to an undertenant, in case of his unlawful detention of the premises underlet to him. 4. A tenant or sub-tenant, assigning or sub-letting, or committing waste upon the demised premises, contrary to the covenants of his lease, thereby terminates the lease, and the landlord, or his successor in estate, shall, upon service of three days' notice to quit, upon the person or persons in possession, be entitled to restitution of possession of such demised premises under the provisions of this chapter. Sec. 5C94. The notices required by the preceding sec- tion may be served, either: 1. By delivering a copy to the tenant personally; or, 2. If he be absent from his place of residence and from his usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his place of residence; or, if such place of residence and bus- iness cannot be ascertained, or a person of suitable age or discretion cannot be found there, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a sub-tenant may be made in the same manner. Sec. 5095. The District Court of the county in which the property or some part of it, is situated, has jurisdiction of proceedings under this chapter. Sec. 5096. The Probate Court of the county in which the property, or some part of it, is situated, has jurisdiction of proceedings under this chapter when the whole amount of rent and damages claimed does not exceed five hundred dollars. Sec. 5097. Justices' Courts have jurisdiction of pro- ceedings under this chapter where the whole amount of rent and damages claimed does not exceed three hundred dollars. Sec. 5098. No person other than the tenant of the prem- ises, and sub-tenant, if there be one, in the actual occupa- tion of the premises when the notice herein provided for was served, need be made parties defendant in the proceed- ing, nor shall any proceeding abate nor the plaintiff be non- suited for the non-joinder of any persons who might have been made parties defendant; but when it appears that any of the parties served with process or appearing in the proceeding are guilty of the offense charged, judgment must be rendered against him. Any person who shall be- come a sub-tenant of the premises or any part thereof after the service of notice as provided in this chapter shall be bound by the judgment. In case a married woman be a 566 Courtb have jurisdiction. Jurisdiction of probate court under this chapter. Jurisdiction of justices' courts under this chapter. Amended. Parties defendant. Amended. 5099-5106 POSSESSION OF REAL PROPERTY. Tit. III. Ch. IV. Parties' /// ^ ' generally. // ^ <* The complaiut. //fefc Summons to issue. Arrest • // (o 8 Judgment by default. Trial by jury tenant or a sub-tenant, her coverture shall constitute no de- fense; but in case her husband be not joined, or unless she be doing business as a sole trader: and execution issued up- on a personal judgment against her, can only be enforced against property on the premises at the commencement of the action. Sec. 5099. Except as provided in the preceding section the provisions of this Code, relating to parties to civil ac- tions, are applicable to this proceeding. Sec. 5100. The plaintiff in his complaint, which shall be in writing, must set forth the facts on which he seeks to recover and describe the premises with reasonable certainty and may set forth therein any circumstances of fraud, force, or violence which may have accompanied the alleged forci- ble entry, or forcible or unlawful detainer, and claim dam- ages therefor. In case the unlawful detainer charged be af- ter default in the payment of rent, the complaint must state the amount of such rent. Upon filing the complaint, a sum- mons must be issued thereon returnable as in other cases. Sec. 5101. If the complaint presented establishes, to the satisfaction of the Judge or Justice, fraud, force, or vi- olence in the entry or detainer, and that the possession held is unlawful, he may make an order for the arrest of the de- fendant. Sec. 5102. If, at the time appointed, the defendant do not appear and defend, the court must enter his default and render judgment in favor of the plaintiff as prayed for in the complaint. Sec. 5103. Whenever an issue of fact is presented by the pleadings, it must be tried by a jury, unless such jury be waived as in other cases. The jury shall be formed in the same manner as other trial juries in the court in which the action is pending. Sec. 5104. On the trial of any proceeding for any forci- ble entry or forcible detainer, the plaintiff shall only be re- quired to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer. The defendant may show in his defense that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet possession thereof for the space of one whole year together next before the commencement of the proceedings, and that his interest therein, is not then ended or determined; and such showing is a bar to the proceedings. Sec. 5105. When upon the trial of any proceeding un- der this chapter, it appears from the evidence that the de- fendant has been guilty of either a forcible entry or a forci- ble or unlawful detainer, and other than the offense charged in the complaint, the Judge must order that such complaint be forthwith amended to conform to such proofs. Such amendment must be without any imposition of terms. No continuance shall be permitted upon account of such amend- ment, unless the defendant, by affidavit filed, shows to the satisfaction of the court good cause therefor. Sec. 5106. If, upon the trial, the verdict of the jury, or, if the case be tried without a jury, the finding of the court, be in favor of the plaintiff and against the defendant, judg- 567 /f(>? •//// Showing re- quired of plain- / tiff, forcible // entry on detainer of defendant. Complaint must ' be amended in certain cases. '1 Verdict and judgment. //% ,111 Tit III. Ch.IV. POSSESSION OF REAL PROPERTY. §§ 5107-5109 ment shall be entered for the restitution of the premises; and if the proceeding be for an unlawful detainer after neg- lect or failure to perform the conditions or covenants of the lease or agreement under which the property is held, or af- ter default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement. The jury or the court, if the proceeding be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, al- leged in the complaint, and proved on the trial and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of rent, and the judgment shall be rendered against the defendant guilty of the forci- ble entry, or forcible or unlawful detainer, for three times the amount of the damages thus assessed, and of the rent found due. When the proceeding is for an unlawful de- tainer after default in the payment of rent, and the lease or agreement under which the rent is payable has not by its terms expired, execution upon the judgment shall not be is- sued until the expiration of five days after the entry of the judgment, within which time the tenant, or any sub-tenant, or any mortgagee .of the term, or other party interested in its continuance, may pay into court, for the landlord, the amount found due as rent, with interest thereon, and the amount of the damages found by the jury or the court for the unlawful detainer, and the costs of the proceeding, and thereupon the judgment shall be satisfied and the tenant be restored to his estate; but, if payment, as here provided, be not made within the five days, the judgment may be en- forced for its full amount, and for the possession of the premises. In all other cases the judgment may be enforced immediately. SpSnTani Sec. 5107. The complaint and answer must be verified. answer. sEC# 5108. An appeal taken by the defendant does not a^eaiupon stay proceedings upon the judgment unless the court so di- judgment. rects. Provisions gEC 5109. The provisions of this Code, relative to civil proceedings actions, appeals, and new trials, so tar as they are not m- chapter^is consistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter. 568 §§ 5125-5129 OF THE ENFORCEMENT OF LIENS,, S^^f^Y^ tU/ Tit. IV- 1U^ TITLE IV. OF THE ENFORCEMENT OF LIENS. LiA Section 5125. Liens of mechanics and others. 5126. Sub-contractors and others. 5127. Liens for grading and filling lots. 5128. Interest in the land. 5129. Effect of liens. 5130. Claim of lien. 5131. Liens upon two or more pieces of property, each to be designated. 5132. Claim to be recorded. Section 5133. Time of continuance. 5134. Sub-contractors. 5135. Recovery by contractor. 5136. Court to declare rank of liena . 5137. Actions for separate liens. 5138. Lien does not impair right to ac- tion. 5139. Rules of practice. New trials and appeals. —hryK^ 1 isVj yp, *l Section 5125. Every person performing labor upon, or furnishing materials to be used in the construction, altera- tion, or repair of any mining claim, building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, wagon road, aqueduct, to create hydraulic power, or any other structure, or who performs labor in any mining claim, has a lien upon the same for the work or labor done or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building or other im- provement, or his agent, but the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay. Sec. 5126. Any sub-contractor, material man, laborer, or other person, performing labor or furnishing materials for a contractor who is entitled to a lien under the provisions of the last section, may, at any time, serve upon the owner, or his agent, or the person employing the contractor, written notice of the amount due him for such labor or materials, and such sub-contractor, material man, laborer, or other per- son, may have a lien for such amount, but not exceeding the amount then or thereafter due such contractor from such owner, or person employing him, under the contract. And any person furnishing materials, or performing labor for a sub-contractor, may, by like notice to the contractor, be subrogated to the rights of such sub-contractor. Sec. 5127. Any person who, at the request of the owner of any lot in any incorporated city or town, grades, fills in, or otherwise improves the same, or the street in front of or adjoining the same, has a lien upon such lot for his work done and materials furnished. Sec. 5128. The land upon which any building, improve- ment, or structure is constructed, together with a con- venient space about the same, or so much as may be re- quired for the convenient use and occupation thereof, is also subject to the liens, if, at the time of the commencement of the work or of the furnishing of the materials for the same, the land belonged to the person who caused said building, improvement, or structure to be constructed; altered, or re- paired; but if such person owned less than a fee simple es- tate in such land, then only his interest therein is subject to such lien. Sec. 5129. The liens provided for in this chapter are preferred to any lien, mortgage, or other incumbrance which may have attached subsequent to the time when the building, improvement, structure or work was commenced 569 What laborers, contractors, etc., may have liens upon. Notice by sub-contractor, etc., and lien for amount due contractor . Liens fox- grading and filling lots and streets. i)V What interest in the land subject to the lien, amended. //*V Ot of liens. an Tit. IV. OF THE ENFORCEMENT OF LIENS. §§ 5130-5135 I' Claim of lieu to be filed iu recorder's office. «1 v ^ V «<\ \\ <\ Vi A "b or materials were commenced to be furnished; also, to any lien, mortgage, or other incumbrance of which the lien- holder had no notice, and which was unrecorded at the time the building, improvement, or structure was com- menced, work done, or the materials were commenced to be furnished. Sec. 5130. Every original contractor, within sixty days after the completion of his contract, and every person, save the original contractor, claiming the benefit of this chapter, must, within thirty days after the completion of any build- ing, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record with the County Re- corder of the county in which such property, or some part thereof, is situated, a claim containing a statement of his demand, after deducting all just credits and off -sets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the material, with a statement of the terms, time given, and conditions of his contract, and also a description of the property to be charged with the lien, suf- ficient for identification, which claim must be verified by the oath of himself or some other person. Sec. 5131. In every case in which one claim is filed against two or more buildings, mining claims, or other im- provements owned by the same person, the person filing such claim must at the same time designate the amount due to him on each of such buildings, mining claims or other im- provements; otherwise, the lien of such claim is postponed to other liens. The lien of such claimant does not extend beyond the amount designated, as against other creditors having liens, by judgment, mortgage, or otherwise, upon either of such buildings or other improvements, or upon the land upon which the same are situated. Sec. 5132. The Recorder must record the claim in a book kept by him for that purpose, which record must be indexed as deeds and other conveyances are required by law to be indexed, and for which he may receive the same fees as are allowed by law for recording deeds and other instruments. Sec. 5133. No lien provided for in this Title, binds any building, mining claim, improvement or structure, for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same; or, if a credit be giv- en, then ninety days after the expiration of such credit; but no lien continues in force for a longer time than two years from the time the work is completed, by any agreement to give credit. Sec. 5134. All persons entitled to liens on the structure or improvement, except those who contracted with the own- er thereof, are sub-contractors, and the court in the judg- ment must direct the amount due sub-contractors to be paid out of the proceeds of sales before any part of such proceeds are paid to the contractor. Sec. 5135. The contractor shall be entitled to recover upon a lien filed by him, only such amount as may be due to him according to the terms of his contract, after deduct- Lieus upon two or more pieces of property. ^ X Amount due l from each to be designated. Claim to be recorded, fees of recorder. Time of continu- ance of lien. Sub-contractors, who are, and when paid out of proceeds of sale. Measure of recovery by contractor, protection of owner's rights. 570 ■§§ 5136-5139 OF THE ENFORCEMENT OF LIENS. Tit. IF. Court to declare rank of liens . ing all claims of other parties for work done and materials furnished, as aforesaid; and in all cases where a lien shall be filed under this Title for work done or materials furnished to any contractor, he shall defend any action brought there- upon at his own expense; and during the pendency of such action, the owner may withhold from the contractor the amount of money for which the lien is filed; and in case of judgment against the owner or his property, upon the lien, the said owner shall be entitled to deduct from any amount due, or to become due by him to the contractor, the amount of such judgment and costs. Sec. 5136. In every case in which different liens are asserted against any property, the court in the judgment must declare the rank of each lien, or class of liens, which shall be in the following order, viz.: First, All persons other than the original contractors and sub-contractors. Second, The sub-contractors. Third, The original contract- ors. And the proceeds of the sale of the property must be applied to each lien, or class. of liens, in the order of its rank, and whenever on the sale of the property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for the deficiency in like manner and with like effect as in actions for the foreclosure of mortgages. Sec. 5137. Any number of persons claiming liens may join or intervene in the same action, and when separate ac- tions are commenced, the court may consolidate them. The court may also allow as part of the costs, the moneys paid for filing and recording the lien. Sec. 5138. Nothing contained in this Title shall be con- strued to impair or affect the right of any person to whom any debt may be due for work done or materials furnished, to maintain a personal action to recover such debt against the person liable therefor. Sec. 5139 Except as otherwise provided in this Title, the provisions of this Code relating to civil actions, new trials and appeals, are applicable to, and constitute the rules of practice in the proceedings mentioned in this Title. />W Separate actions may be consoli- dated, costs . Liens not to im- pair right to personal action. Provisions applicable to proceedings under this title. o //yo # ///; //fi !Ia_su t) 'I HO 571 J A J\^ JLkula^jq AH^jLC -6-^ V»/*, > May enter to make surveys. Jurisdiction in district court. The complaint and its contents. /*i h-AI How issued and Tit. VII. OF EMINENT DOMAIN. $§5217-5220 2. The names of all owners and claimants of the prop- erty if known, or a statement that they are unknown, who must be styled defendants; 3. A statement of the right of the plaintiff: -i. If a right of way be sought, the complaint must show the location, general route, and termini, and must be ac- companied with maps thereof; 5. A description of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel or tract. All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings, at the option of the plain- tiff, but the court may consolidate or separate them, to suit the convenience of parties, summons, what Sec. 5217. The clerk must issue a summons, which must contain the names of the parties, a general description of the whole property, a statement of the public use for which it is sought, and a reference to the complaint for descriptions of the respective parcels, and a notice to the defendants to appear and show cause why the property described should not be condemned as prayed for in the served."" complaint. In all other particulars it must be in the form of a summons in civil actions, and must be served in like manner. whomayde- Sec. 5218. All persons in occupation of , or having or anlweT^ay*16 claiming an interest in any of the property described in the show. complaint, or in the damages for the taking thereof, though not named, may appear, plead, and defend, each in respect to his own property or interest, or that claimed by him, in like manner as if named in the complaint, court shaii have Sec. 5219. The court shall have power: jurisdiction to i To regulate and determine the place and manner of / -i regulate the , . » . r . mode of making making connections and crossings, or or enjoying the com- eSoySiSa0com- mon use mentioned in the fifth subdivision of section 5212; monuse. 2. To hear and determine all adverse or conflicting claims to the property sought to be condemned, and to the dam- ages therefor. 3. To determine the respective rights of different parties seeking condemnation of the same property. court or jury Sec. 5220. The court, jury, or referee must hear such .damages. legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess : 1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed. 2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will ac- crue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff. 3. Separately, how much the portion not sought to be condemned, and each estate or interest therein, will be spec- ially and directly benefited, if at all, by the construction of the improvement proposed by the plaintiff; and if the bene- 578 §§ 5221-5226 OF EMINENT DOMAIN. Tit. VII. fit shall be equal to the damages assessed, under subdivision 2, the owner of the parcel shall be allowed no compensation except the value of the portion taken; but if the benefit shall be less than the damages so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value; 4. If the property sought to be condemned be for a rail- road, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle guards where fences may cross the line of such railroad; As far as practicable, compensation must be assessed o. for each source of damages separately. Sec. 5221. For the purpose of assessing compensation and damages, the right thereto shall be deemed to have ac- crued at the date of the summons, and its actual value, at that date, shall be the measure of compensation for all prop- erty to be actually taken, and the basis of damages to prop- erty not actually taken, -but injuriously affected, in all cases where such damages are allowed, as provided in the last section. No improvements put upon the property, subse- quent to the date of the service of summons, shall be in- cluded in the assessment of compensation or damages. Sec. 5222. If the title attempted to be acquired is found to be defective from any cause, the plaintiff may again in- stitute proceedings to acquire the same, as in this Title pre- scribed. Sec. 5223. The plaintiff must, within thirty days after final judgment, pay the sum of money assessed; but may, at the time of or before payment, elect to build the fences and cattle guards; and if he so elect, shall execute to the de- fendant a bond, with sureties to be approved by the court in double the assessed cost of the same, to build such fences and cattle guards within eight months from the time the railroad is built on the land taken, and if such bond is given, need not pay the cost of such fences and cattle guard. In an action on such bond the plaintiff may recover reasona- ble attorney's fees. Sec. 5224. Payment may be made to the defendants entitled thereto, or the money may be deposited in court for the defendants, and be distributed to those entitled thereto. If the money be not so paid or deposited, the defendants may have execution as in civil cases; and if the money can- not be made on execution, the court upon a showing to that effect, must set aside and annul the entire proceedings, and restore possession of the property to the defendant, if pos- session has been taken by the plaintiff. Sec. 5225. When payments have been made and the bond given, if the plaintiff elects to give one, as re- quired by the last two sections, the court must make a final order of condemnation, which must describe the property condemned and the purposes of such condemnation. A copy of the order must be filed in the office of the Recorder of the County, and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified. Sec. 5226. At any time after trial and judgment entered or pending on appeal from the judgment to the Supreme Court, whenever the plaintiff shall have paid into the court for the defendant, the full amount of the judgment, and The date with respect to which compen- sation shall be assessed, and the measure thereof. /> - ? New proceedings to cure defective title. Payment of damages, or deposit of bond therefor /2*SO iJ / Damages, to whom paid. A cT^ Final order of / a t j condemnation, / / U J what to contain. When filed, title vests. 579 Patting plalctifl /'• ,• V in possession. ' *■ 14 sea.^ Tit VII. OF EMINENT DOMAIN. §5226 such further sum as shall be required by the court as a fund to pay any further damages and costs that may be recov- ered in said proceedings as well as all damages that, may be sustained by the defendant, if for any cause the property shall not be finally taken for public use, the District Court in which the proceeding was tried may, upon notice of not less than ten days, authorize the plaintiff if already in pos- session to continue therein, and if not, to take possession of and use the property during the conclusion of the litigation, and may, if necessary, stay all actions and proceedings against the plaintiff on account thereof. The defendant who is entitled to the money paid into court for him upon any judgment, shall be entitled to de- mand and receive the same at any time thereafter upon ob- taining an order therefor from the court. It shall be the du- ty of the court or the Judge thereof, upon application being made by such defendant, to order and direct that the money so paid into court for him, to be delivered to him upon his filing a satisfaction of the judgment or upon his filing a re- ceipt therefor and an abandonment of all defenses to the ac- tion or proceeding except as to the amount of damages that he may be entitled to' in the event that a new trial shall be granted. A payment to a defendant as aforesaid shall be held to be an abandonment by such defendant of all defenses interposed by him excepting his claim for greater compensation. The court may order the money to be depos- ited in the county treasury, and in such case it shall be the duty of the treasurer to receive all such moneys, duly re- ceipt for, and safely keep the same and to pay out such moneys in such manner, and at such times, as the court or Judge thereof may direct, and for such duty he shall be. lia- ble to the plaintiff upon his official bond. Provided, furth- er, That at any time after the commencement of proceed- ings, in the District Court, as provided for in this Title, to condemn property and upon ten days' notice to the adverse party, the District Court may appoint three disinterested persons, who shall be residents of the county in which the land is situated as commissioners to assess and determine the damages that the defendant will sustain by reason of the condemnation and appropriation of the property de- scribed in the complaint, and the said commissioners shall, before entering upon the discharge of their duties, take and subscribe an oath to faithfully and impartially discharge their duties as such commissioners. Such commissioners shall give in writing at least five days' notice of the time and place where they will meet for the purpose aforesaid, which place, unless agreed upon between the parties, shall be within five miles of the premises aforesaid; at the time and place mentioned in such notice they may administer oaths to witnesses, and hear the evidence offered by the parties, and after viewing the premises shall report in writ- ing their proceedings and the damages which they find the defendant will sustain by reason of the condemnation and appropriation of said property, which report shall be signed by said commissioners, or a majority thereof, and be filed in the office of the Clerk of the District Court in which such actions shall be pending; and at any time after payment to the defendant of the amount so assessed and found by said 580 §§ 5227-5229 OF EMINENT DOMAIN. Tit. VII. commissioners as damages, or in case the defendant shall refuse to receive the same, then at any time after such amount shall be deposited with the Clerk of the said court to abide the result of said action, the plaintiff may enter upon and take possession of and use the property mentioned in the complaint, until the final conclusion of the litigation concerning the same. Provided further, That the amount of damages so assessed and, determined by said commission- ers shall not be offered In^or be made known to the jury upon the trial of such proceedings. [Act Feb. 10, 1887. In effect June 1, 1887.] Sec. 5227. Costs may be allowed or not, and if allowed, may be apportioned between the parties on the same or ad- verse sideS, in the discretion of the court. Sec. 5228. Except as otherwise provided in this Title, the provisions of this Code relative to civil actions and new trials and appeals, are applicable to and constitute the rules of practice in the proceedings in this Title. Sec. 5229. Nothing in this Code must be construed to Exceptions abrogate or repeal any statute providing for the taking of property in any city or town for street purposes. Costa may be allowed, distri- bution thereof. Provisions applicable to proceedings under this title. /*- kT~J 2- &S /V^ -VfC der staying the entry of judgment has been served, the award must be entered by the Clerk in the judgment book, and thereupon has the effect of a judgment. Sec. 5266. The court on motion may vacate thev award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, in its discre- tion : 1. That it was procured by corruption or fraud; 2. That the arbitrators were guilty of misconduct or committed gross error in refusing on cause shown, to post- pone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced; 3. That the arbitrators exceeded their powers in making their award; or that they refused, or improperly omitted to consider a part of the matters submitted to them; or that the award is indefinite or cannot be performed. Sec. 5267. The court may, on motion, modify or cor- rect the award where it appears: 1. That there was a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein; 2. When a part of the award is upon matters not submit- ted, which part can be separated from other parts, and does not effect the decision on the matters submitted; 3. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imper- fection disregarded. Sec. 5268. The decision upon either motion is subject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment, if entered be- fore a motion made, cannot be subject to appeal. Sec. 5269. If a submission to arbitration be revoked, and an action be brought therefor, the amount to be recov- ered can only be the costs and damages sustained in prepar- ing for and attending the arbitration. Court may, on motion, modify or correct the award. Decision, on motion, subject i;o appeal, but not the judg- ment entered 'before motion . If submission be revoked and an action brought, what to be recovered. 584 §§ 5290-5291 OF JURISDICTION. Tit. X, Ch. T. TITLE X. OF PROCEEDINGS IN PROBATE COURTS. CHAPTER I. • Of Jurisdiction. Section 5290. Jurisdiction of Probate Court over the estate, when exercised. Section 5291. When jurisdiction decided by first application. Section 5290. Wills must be proved, and letters testa- mentary 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 Ter- ritory. 3. In the county in which any part of the estate may be, the decedent having died out of the Territory, and not resi- dent thereof at the time of his death; 4. In the county in which any part of the estate may be, the decedent not being a resident of the Territory, 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. Sec. 5291. 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 dying within the Territory, and not leaving estate in the county where he died, the Pro- bate Court of that county in which application is first made for letters testamentary or of administration, has exclusive jurisdiction of the settlement of the estate. 585 Jurisdiction of probate court over the estate, when exercised. /*-? When jurisdic- tion decided by first application. /I? TU.X. Ch.IL OF THE PROBATE OF WILLS. §§ 5296-5298 CHAPTER II. Of the Probate of Wills. M* Custodian of will to deliver same to whom. /'iff l$(l« Who may petition for probate of will. Contents of a petition. Section 5296. Custodian of will to deliver same to whom, penalty. Who may petition for probate of will-. Contents of petition. When executor forfeits right to let- ters. Will to accompany petition, or its presentation prayed for and how enforced. Notice of petition for probate, how given. Heirs and named executors to be notified, how. Petition may be presented to Judge at chambers, and what Judge may do. Hearing proof of will after proof of service of notice. Who may appear and contest the will. Probate, when no contest. Olographic wills. Contestant to file grounds of con- test, and petition to reply. How jury obtained and trial had. Verdict of the jury. Judgment. Ap- peal. Witnesses, who and how many to be examined. Proof of handwrit- ing admitted, when. Testimony reduced to writing for future evidence. If proved, certificate to be at- tached. Will and proof to be filed and rec- orded. 5297. 5298. 5299. 5300. 5301. 5302. 5303. 5304. 5305. 5306. 5307. 5308. 5309. 5310. 5211. 5312. 5313. 5314. Section 5315. Wills proved in other states to be recorded, when and where. Proceedings on the production of a foreign will. Hearing proofs of probate of foreign wiU. The probate may be contested with- in one year. Citation to be issued to parties in- terested. The hearing had on proof of ser- vice. Petitions to revoke probate of will tried by a jury or court. Judg- ment, what. On revocation of probate, powers of executor, etc., cease, but not liable for acts in good faith . Costs and expenses, by whom paid. Probate when conclusive. One year after removal of disability given to infants and others . Proof of lost or destroyed will to be taken. Must have been in existence at time of death. To be certified, recorded, and letters thereon granted. Court to restrain injurious acts of executors or administrators dur- ing proceedings to prove lost will. Nuncupative wills, when and how admitted to probate. Additional requirements in probate, nuncupative wills. Contests and appointments to con- form to provisions as to other wills. 5316. 5317. 5318. 5319. 5320. 5321. 5322. 5323. 5324. 5325. 5326. 5327. 5328. 5329. 5330. 5331. Section 5296. Every custodian of a will, within thirty- days after receipt of information that the maker thereof is dead, must deliver the same to the Probate Court having jurisdiction of the estate, or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sus- tained by any one injured thereby. Sec. 5297. Any executor, devisee, or legatee named in any will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the same be in writing, in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the Territory, or a nuncupative will. Sec. 5298. A provision for the probate of a will must show: 1. The jurisdictional facts; 2. Whether the person named as executor consents to act, or renounces his rights to letters testamentary; 3. The names, ages, and residence of" the heirs and de- visees of the decedent, so far as known to the petitioner; 4. The probable value and charactei 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. r 86 §§ 5299-5304 OF THE PROBATE OF WILLS. Tit. X. Ch. II. Sec. 5299. 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 re- nounced his right to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown. Sec. 5300. If it is alleged in any petition that any will is in 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, re- quiring him to produce it at a time named in the order. If he has possession of the will and neglects or refuses to produce it in obedience to the order, he may by warrant from the court, be committed to the jail of the county, and be kept in close confinement until he produces it. Sec. 5301. When the petition is filed and the will pro- duced, the Probate Judge 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 Clerk of the Court, 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 is published in a weekly newspaper, it must appear therein on at least three different days of publication, and if in a newspaper published oftene'r 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 day being included. If the notice is by posting, it must be given at least ten days before the hearing. Sec. 5302. Copies of the notice of the time appointed for the probate of the will must be addressed to the neirs of the testator resident in the Territory, at their places of res- dence, if known to the petitioner, and deposited in the post- office, with the postage thereon paid, at least ten days be- fore the hearing. If their places of residence be not known, the copies of notice may be addressed to them and deposited in the postoffice at the county seat of the county where the proceedings are pending. A copy of the same notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also to any person named as co- executor not petitioning, if their places of residence be known. Proof of mailing the copies of the notice must be made at the hearing. Personal service of copies of the no- tice at least ten days before the day of hearing, is equiva- lent to mailing. Sec. 5303. The Probate Judge may, out of term time 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 attendance of witnesses, and may appoint special terms of his court for hearing the peti- tions, trials of issues, and admitting to probate. Sec. 5304. At the time appointed for, or to which the hearing may have been postponed, the court must require proof, by affidavit, that the notices hereinbefore requin <1 have been personally served or mailed and published, whirl i 587 When execu- tor forfeits rights to letters. 3 r// Will to accompany petition, or its presentation prayed for and how enforced. /jf/^ Notice of petition for probate, how given. /3 r/5 Heirs and named execu - / -t jy •/ tors to be notified, how. Petition may be presented to . judge at chambers, nnd wbat judge may do. Hoaring proof of will after proof of service of notice. Tit.X. Ch. 11. OF THE PROBATE OF WILLS. §g 5305-5309 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 original notice is required to be given. The ap- pearance in court of parties interested is a waiver of notice. . who may Sec. 53Q5. Any person interested may appear and con- /3^ content the win. test the will. Devisees, legatees, heirs, or creditors of an estate may contest the will through their guardians, or at- torneys 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 the time "provided in this chapter; nor does the non-appointment of an attorney by the court of itself invalidate the probate of a will. Probate, when Sec. 5306. If no person appears to contest the probate no contest. 0f a w{\\^ the court may admit it to probate on the testimo- ny 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 mind at the time of its execution, olographic wins. Sec. 5307. An olographic will may be proved in the same manner that other private writings are proved, contestant Sec. 5308. If any one appears to contest the will, he of contest^ and must file written grounds of opposition to the probate there- / j J \ petitioner'to of, and serve a copy on the petitioner and other residents of the county interested in the estate, any one or more of whom may demur thereto upon any of the grounds of de- murrer to a complaint in civil actions. If the demurrer is sustained, the court must allow the contestant a reasonable time, not exceeding ten days, within which to amend his written opposition. If the demurrer is overruled, the peti- tioner and others interested may jointly or separately an- swer 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 testament; 2. The freedom of the decedent at the time of the execu- tion of the will from duress, menace, fraud, or undue in- fluence; 3. The due execution and attestation of the will by the decedent or subscribing witnesses; or, 4. Any other questions substantially affecting the validity of the will; Must, on request of either party in writing (filed three days prior to the day set for the hearing), be tried by a jury. If no jury is demanded, the court must try and determine the issues joined. On the trial the contestant is plaintiff, and the petitioner is defendant. jrj/2 how jury Sec. 5309. When a jury is demanded, the Probate triafhad.aml Court must summons and impanel a jury to try the case, in the manner provided for summoning and impaneling trial juries in civil actions, and the trial must be conducted in the same manner as the trial of civil actions in the District Court. 5310-5318 OF THE PKOBATE OF WILLS, Tit. X. Ch. II. Sec. 5310. The jury, after hearing the case, must re- turn a special verdict upon the issues submitted to them by the court, upon which the judgment of the court must be rendered, 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 is admitted to pro- bate, the judgment, will, and proofs must be recorded. Sec. 5311. If the will is contested, and the subscribing 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 satisfac- torily shown to the court. If none of the subscribing wit- nesses reside in the county at the time appointed for prov- ing the will, the court may admit the testimony of other witnesses to prove the sanity of the testator and the execu- tion 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. Sec. 5312. The testimony of each witness, reduced to writing and signed by him, shall be good evidence in any subsequent contests 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. Sec. 5313. If the court is satisfied, upon the proof taken or from the facts found by the jury, that the will was duly executed, and that the testator at the time of its execu- tion was of sound and desposing mind, and not acting under duress, menace, fraud, or under influence, a certificate of the proof and the facts found, signed by the Probate Judge and attested by the seal of the court, must be attached to the will. Sec. 5314. The will and a certificate of the proof there- of, must be filed by the Clerk and recorded by him in a book to be provided for the purpose. All testimony shall be filed by the Clerk. ' Sec. 5315. Every will duly proved and allowed in any part of the United States, or in any foreign country or state, may be allowed and recorded in the Probate Court of any county in which the testator shall have left any estate. Sec. 5316. When a copy of the will and the probate thereof, duly authenticated, shall be produced, by the exe- cutor, 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 hereinbefore provided for an original peti- tion for the probate of a will. Sec. 5317. If, on the hearing, it appears upon the face of the record that the will has been proved, allowed and ad- mitted to Probate in the United States, or in any foreign country, and that it was executed according to the law of the place in which the same was made, or in which the tes- tator was at the time domiciled, or in conformity with the laws of this Territory, it must be admitted to probate, and have the same force and effect as a will first admitted to probate in this Territory, and letters testamentary or of administration issued thereon. Sec. 5318. When a will has been admitted to probate, any person interested may at any time within one year af- 589 Verdict of the jury. Judgment. Appeal. Witnesses, who and how many to be examined. Proof of handwriting. /J/( /3/f Testimony reduced to writing for future evidence. If proved, certificate to be attached. /Jf(c /3/7 Will and proof to be filed and recorded. Wills proved in other states to be recorded, when and where. Proceedings on the production of a foreign will. /3/

? W 1331 I 3 3V /TO "bV\ Citation to be issued to parties interested. The hearing had •on proof of service . Petitions to revoke probate of will tried by jury or court. Judgment, what. On revocation of probate, powers of executor, etc., cease, but not liable for acts in good faith. Costs and expenses, by whom paid. Probate, when conclusive. Cne year after removal of disability given to infants and others . Proof of lost or destroyed will to be taken. Must have been in existence at time of death. ter 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 petition in writing containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked. Sec. 5319. 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 in the will and heirs residing in the Territory so far, as known to the petitioners; or to their guardians, if any of them are minors, or to their personal representatives, if any of them are dead, requiring them to appear before the court on some day of a regular term therein specified, to show cause why the probate of the will should not be revoked. Sec. 5320. At the time appointed for showing cause or at any time to which the hearing is postponed, personal ser- vice of the citations having been made upon any persons named therein, the court must proceed to try the issues of fact joined in the same manner as in an original contest of a will. Sec. 532 1 . In all cases of petitions to revoke the probate of a will, wherein the original probate was granted without a contest, on written demand of either party, filed three days prior to the hearing, a trial by jury must be had, as in cases or the contest of an original petition to admit a will to probate. If, upon hearing the proofs of the parties, the jury shall find, or, if no jury is had, the court shall decide, that the will is for any reason invalid ; or that it is not sufficient- ly proved to be the last will of the testator, the probate must be annulled and revoked. Sec. 5322. Upon the revocation being made, the powers of the executor or administrator with the will annexed, must cease; but such executor or administrator shall not be liable for any act done in good faith previous to the revo- cation. Sec. 5323. The fees and expenses must be paid by the party contesting the validity or probate of the will, if the will in probate is confirmed. If the probate is 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. Sec. 5324. If no person, within one year after the pro- bate of a will, contests the same, or the validity thereof, the probate of the will is conclusive; saving to infants and per- sons of unsound mind, a like period of one year after their respective disabilities are removed. Sec. 5325. 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 inter- ested being first given, as prescribed in regard to proofs of wills in other cases. All the testimony given must be re- duced to writing, and signed by the witnesses. Sec. 5326. 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 fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. 590 5327-5331 OF THE PROBATE OF WILLS. Trt.X. Ch, Sec. 5327. When a lost will is established, the provis- ions thereof must be distinctly stated and certified by the Probate Judge under his hand and the seal of his court, and the certificate, together with the testimony upon which it is founded, must be filed 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. Sec. 5328. If before or during the pendency of an ap- plication to prove a lost or destroyed will, letters of admin- istration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are grant- ed, 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. Sec. 5329. Nuncupative wills may at any time within six months after the testamentary words are spoken by the decedent, be admitted to probate on petition and notice as provided for the probate of written wills. The petition in addition to the jurisdictional facts, must allege that the tes- tamentary words, or the substance thereof, were reduced to writing within thirty days after they were spoken, which writing must accompany the petition. Sec. 5330. The Probate Court must not receive or en- tertain 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 at any time be acted on until the tes- tamentary words are, or their substance is, reduced to writ- ing and filed with the petition, nor until the surviving hus- band or wife (if any), and all other persons resident in the Territory, interested in the estate, are notified as hereinbe- fore provided. Sec. 5331. Contests of the probate of nuncupative wills and appointments of executors and administrators of the estate devised thereby must be had, conducted and made as hereinbefore provided in cases of the probate of written wills. 591 To be certified, recorded, and letters therein granted . Courts to re- strain injurious acts of execu- tors, or admin- istrators during proceedings to prove lost will. Nuncupative wills, when and how admitted to probate . /:* t/o /3V /3V¥- Additional re- quirements in probate of nuncupative wills. /3t/* Contests and appointments to conform to pro- visions as to other wills. Tit.X. Ch.IIL OF EXECUTORS AND ADMINISTRATORS. §§ 5340-5341 CHAPTER III. Of Executors and Administrators, Their Letters, Re- movals and Suspensions. To whom letter! on proved will to iBSue. Who are in- competent as executors, or administrators. Section 5340. To whom letters on proved will to issue. 5341 . Who are incompetent as executors or administrators. Letters with will annexed to issue, when. 5342. Interested parties may file objec- tions. 5343. Unmarried woman, executrix or ad- ministratrix, marrying, her au- thority ceases. Married woman named may be executrix, but not administratrix. 5344. Executor of an executor. 5345. Letters of administration durante minore cetate. 5346. Acts of a portion of executors valid. 5347. Authority of administrators with will annexed. Letters, how is- sued. 5348. Form of letters testamentary. 5349. Form of letters of administration with the will annexed. 5350. Form of letters of administration. 5351 . Order of persons entitled to admin- ister. Partner not to administer. 5352. Preference of persons equally in ti- tle. 5353. In discretion of court to appoint ad- ministrator, when. 5354. When minor entitled, who appoint- ed administrator. 5355. Who ai-e incompetent to act as ad- ministrators. 535G. Married woman not to be adminis- tratrix. 5357. Applications, how made. 5358. When granted. 5359. Notice of application. 5360. Contesting applications. 5361 . Hearing of application. 5362. Evidence of notice. 5363 . Grant to any applicant. 5364. What proof 8 must be made before granting letters of administration. 5365. Letters may be granted to others than those entitled. 5366. Revocation of letters of administra- tion. 5367. When petition filed, citation to is- sue. 5368 . Hearing of petition for revocation. 5369. Prior rights of relatives entitles them to revoke prior letters. 5370. Administrator or executor to take oath. Letters and bond to be re- corded. 5371. Bond of administrators, form and requirements of. 5372. Additional bonds, when required. 5373 . Condition s of bonds . 5374. Each or more than one administra- tor to give separate bonds. 5375. Several recoveries may be had on same bond. 5376. Bonds, and justification of sureties on, must be approved. Section 5340. The court admitting a will to probate, after the same is proved and allowed, must issue letters thereon to the persons named therein as executors, who are com- petent to discharge the trust, who must appear and qualify, unless objection is made, as hereinafter provided. Sec. 5341. 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; 592 Section 5377. Citation and requirement of Judge on deficient bond. Additional se- curity. Right ceases, when. When bond may be dispensed with. Petition showing failing sureties and asking for further bonds. Citation to executor, etc . , to show cause against such application. Further security may be ordered. Neglecting to obey order. Suspending powers of executor, etc. Further security ordered without application of party in interest. Release of sureties. New sureties. Neglect to give new sureties forfeits letters. Applications to be determined out of term time . Special administrator, when ap- pointed. Special letters may be issued out of term time. Preference given to persons entitled to letters . Special administrator to give bond and take oath. Duties of special administrator. When letters testamentary or of ad- ministration are granted, special administrator's powers cea6e. Special administrator to render ac- count. On proof of will, after grant of let- ters of administration, letters re- voked. Power of executor in such a case. Remaining administrator or execu- tor to continue when his colleagues are disqualified. Who to act when all acting are in- competent. Executor or administrator may re- sign, when . Court to appoint suc- cessor. Liability of outgoer. All acts of executor, etc., valid un- til his power is revoked. Transcript of court minutes to be evidence. When Judge not to act. Judge being disqualified, proceed- ings to be transferred, and where. Transfer not to change right to ad- minister. Retransfer, how made. When proceedings to be returned to original court. Suspension of powers of executor. Executor to have notice of his sus- pension, and to be cited to appear. Any party interested may appear on hearing . Notice to absconding executors and administrators . May compel attendance . 5378. 5379. 5380. 5381. 5382. 5383. 5384. 5385. 5386. 5387. 5388. 5389. 5390. 5391. 5392. 5393. 5394. 5395. 5396. 5397. 5398. 5399. 5400. 5401. 5402. 5403. 5404. 5405. 5406. 5407. 5408. 5409. 5410. 5411. 5412. §§ 5342-5348 OF EXECUTORS AND ADMINISTRATORS. Tit. X. Ch. III. 3. Adjudged by the court incompetent to execute the du- ties of the trust by reason of drunkenness, improvidence, or want of understanding 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 administration with the will annexed must be issued. Sec. 5342. Any person interested in a will may file ob- jections in writing, to granting letters testamentary to the persons named as executors, or any of them; and the objec- tions must be heard and determined by the court. A peti- tion may, at the same time, be filed for letters of administra- tion, with the will annexed. Sec. 5343. When an unmarried woman, appointed as 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 feme sole. Sec. 5344. No executor of an executor shall, as such, be authorized to administer on the estate of the first testa- tor, 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. Sec. 5345. Where a person absent from the Territory, or a minor is named executor — if there is another executor who accepts the trust and qualifies — the latter may have letters testamentary and administer the estate until the re- turn of the absentee or the majority of the minor, who may then be admitted as joint executor. 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. Sec. 5346. When all the executors named are not ap- pointed by the court, those appointed have the same author- ity to perform all acts and discharge the trust, required by the will, as effectually for every purpose as if all were appoint- ed and should act together; where there are two executors or administrators, the act of one alone shall be effectual, if the other is absent from the Territory or laboring under any legal disability from serving, or if he has given his co-exec- utor or co-administrator authority, in writing to act for both; and where there are more than two executors or ad- ministrators, the act of a majority is valid. Sec. 5347. Administrators with the will annexed have the same authority over the estates which executors named in the will would have, and their acts are as effectual for all purposes. Their letters must be signed by the Clerk of the Court and bear the seal thereof. Sec. 5348. Letters testamentary must be substantially in the following form : " Territory of Idaho, county of . The last will of A. B., deceased, a copy of which is hereto annexed, hav- ing been proved and recorded in the Probate Court of the county of — , C. D., who is named therein, is hereby appointed executor. Witness, G. H., Clerk of the Probate Letters with will annexed to issue, when. Interested . parties may file objections. Unmarried woman. Married woman. Executor of an executor. Letters of administration durante minore altate. Acts of a portion of executors valid . Authority of administrators with will annexed . Letters, how issued. Form of letters testamentary. 38 593 Tit X. Ch. III. OF EXECUTORS AND ADMINISTRATORS. §8- 5349-5354 with the seal of the — , A. D.,18 — . Form of letters of administra- tion with the will annexed. Form of letters of administra- tion. Order of persons entitled to administer. Partner not to administer. Preference of person equally entitled. In discretion of court to appoint administrator, when. When minor entitled, who appointed administrator. Court of the county of court affixed, the day of [Seal.] By order of the court. G. H., Clerk." Sec. 5349. Letters of administration, with the will an- nexed must be substantially in the following form: ' The Territory of Idaho, county of . The last will of A. B., deceased, a copy of which is hereto annexed, hav- ing 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., Clerk of the Probate Court of the county of , with the seal of the court affixed, the day of , A. D., 18 — . [Seal.] By order of the court. G. H., Clerk.'* Sec. 5350. Letters of administration must be signed by the Clerk under the seal of the court, and substantially in the following form: * 'Territory of Idaho, county of . C. D. is hereby appointed administrator of the estate of A. B. deceased. [Seal.] Witness, G. H., Clerk of the Probate Court of the county of , with the seal thereof affixed, the day of, , A. D., 18 — . By order of the court. G.H., Clerk." Sec. 5351. Administration of the estate of a person dy- ing 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; 8. Any of the kindred ; 9. The public administrator; 10. The creditors; 11. Any person legally competent; If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate. Sec. 5352. Of several persons claiming and equally en- titled to administer, males must be preferred to females, and relatives of the whole to those of the half blood. Sec. 5353. When there are several persons equally en- titled 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 compe- tent. Sec. 5354. If any person entitled to administration is a minor, letters must be granted to his or her guardian, or 594 §§ 5355-5364 OF EXECUTORS AND ADMINISTRATORS. Tit.X. Ch.IIl. Who are in- competent to act as adminis- trators . Married woman not to be admin- istratrix. Application, how made. When granted. Notice of application . any other person entitled to letters of administration, in the discretion of the court. Sec. 5355. No person is competent to serve as adminis- trator or administratrix who is: 1. Not a bona fide resident of the Territory; 2. Under the age of majority; 3. Convicted of an infamous crime; 4. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. Sec. 5356. A married woman must not be appointed administratrix. When an unmarried woman appointed ad- ministratrix marries, her authority is extinguished. Sec. 5357. Petitions for letters of administration, must be in writing, signed by the applicant or his counsel and filed with the Clerk of the Court, stating the facts essential to give the court jurisdiction of the case, and when known to the applicant, he must state the names, ages, and resi- dence of the heirs of the decedent, and the value and char- acter of the property. If the jurisdictional facts existed, but are not fully set forth in the petition, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments. Sec. 5358. Letters of administration may be granted at a regular term of the court, or at a special term appointed by the judge for the hearing of the application. Sec. 5359. When a petition praying for letters of ad- ministration is filed, the Clerk must give notice thereof by causing notices to be posted in at least three public places in the county, one of which must be at the place where the court is held, containing the name of the decedent, the name of the applicant, and the time at which the application will be heard. Such notice must be given at least ten days before the hearing. Sec. 5360. Any person interested may contest the peti- tion by filing written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to him- self. 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. Sec. 5361. On the hearing, it being first proved that notice has been given as herein required, the court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto. Sec. 5362. An' entry in the minutes of the court, that the required proof was made and notice given, shall be con- clusive evidence of the fact of such notice. Sec. 5363. Letters of administration must be granted to any applicant, though it appears that there are other per- sons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves. Sec. 5364. Before letters of administration 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 Contesting application. Hearing of application. Evidence of notice. Grant to any applicant. What proof 8 must be made before granting letters of administration. 595 Tit.X. Ch.HL OF EXECUTORS AND ADMINISTRATORS. 5365-5371 Letters may be granted to others than those entitled. Revocation of letters of administration . When petition filed, citation and notice. Hearing of petition for revocation. Prior rights of relatives en- titles them to revoke prior letters . Administrator or executor to take oath. Letters and bond to be recorded. Boud of administrator, form and re- quirements of. 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 character of his property, and whether or not the decedent left any will, and may compel any per- son to attend as a witness for that purpose. Sec. 5365. Administration may be granted to one or more competent persons, although not otherwise 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 Territory, affidavits taken ex parte before any officer authorized by the laws of this Territory to take acknowledg- ments and administer oaths out of the Territory, may be re- ceived as primary evidence of the identity of the party, if free from suspicion, and the fact is established to the satis- faction of the court. Sec. 5366. When letters of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother or sister of the intestate, any one of them who is competent, or any competent per- son at the written, request of any of them, may obtain the revocation of the letters and be entitled to the administra- tion by presenting to the court a petition praying the revo- cation and that letters of administration may be issued to him. Sec. 5367. When such petition is filed, the Clerk must in addition to the notice required on application for letters, issue a citation to the administrator to appear and answer the same at the time appointed for the hearing. Sec. 5368. At the time appointed, the citation having been duly served and returned, the court must proceed to hear the allegations and proofs of the parties, and if the right of the applicant is established and he is competent, let- ters of administration must be granted to him and the letters of the former administrator revoked. Sec. 5369. The surviving husband or wife, when let- ters of administration have been granted to a child, father, brother, or sister of the intestate; or any of such relatives, when letters have been granted to any other of them, may assert his prior right, and obtain letters of administration, and have the letters before granted revoked in the manner prescribed in the three preceding sections. Sec. 5370. 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 administrator, which oath must be attached to the letters. All letters testamentary and of ad- ministration issued to, and all bonds executed by executors or administrators, with the affidavits and certificates there- on, must be forthwith recorded by the Clerk of the Court having jurisdiction of the estates, in books to be kept by him in his office for that purpose. Sec. 5371. Every person to whom letters testamentary or of administration are directed to issue, must, before re- ceiving them, execute a bond to the Territory of Idaho, with two or more sufficient sureties, to be approved by the Probate Judge. In form, the bond must be joint and sev- eral, and the penalty must not be less than twice the value 596 §§ 5472-5378 OF EXECUTOKS AND ADMINISTKATOKS. Tit. X. Ch. 111. of the personal property, and twice the probable value of the annual rents, profits, and issues of the real property belong- ing to the estate, which values must be ascertained by the Probate Judge, by examining on oath the party applying, and any other persons. Sec. 5372. The Probate Judge must require an addi- Additional tional bond whenever the sale of any real estate belonging re°qu\8red.hen to an estate is ordered; 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 of any bond given in place thereof, is equal to twice the value of the personal property remaining in, or that will come into, the possession of the executor or administrator, including the annual rents, profits, and issues of real estate, and twice the probable amount to be realized on the sale of the real estate ordered to be sold. Sec. 5373. The bond must be conditioned that the ex- conditions of ecutor or administrator shall faithfully execute the duties bonds- of the trust according to law. Sec. 5374. When two or more persons are appointed §fanonemore executors or administrators, the Probate Judge must re- administrator to quire and take a separate bond from each of them. bondsepaxate Sec. 5375. The bond shall not be void upon the first re- Recoveries had covery, but may be sued and recovered upon from time to on same bond- time, by any person aggrieved, in his own name, until the whole penalty is exhausted. Sec. 5376. In all cases where bonds or undertakings Bonds and are required to be given, under this Title, the sureties must iureSeson" ° justify thereon as required by this Code, and the certificate thereof muse be attached to, and filed and recorded with the bond or undertaking. All such bonds and undertak- Must be ings must be approved by the Probate Judge before being apprOT filed or recorded. Sec. 5377. Before the Probate Judge approves any ^^em^s of bond required under this Title, he may of his own motion, judg^on de- or at any time after the approval of such bond, upon the flcient bond motion of any person interested in the estate, supported by affidavit that any one or all of such sureties are not worth as much as they have justified to, order a citation to issue, requiring such sureties to appear before him, at a certain time and place, to testify touching their property and its value; and the Judge must, at the time such citation is is- sued, cause a notice to be issued to the executor or admin- istrator, requiring his appearance at the return of the cita- tion. Upon the return of the citation, the Judge may swear and examine the sureties, and such witnesses as may be produced, touching the property of such sureties and its value; and if, upon such investigation, the Judge is satisfied ^^j™ Rl that the bond is insufficient, he may require sufficient addi- tional security, within such time as may be reasonable, not less than five days. Sec. 5378. If sufficient security is not given within the Right ceases, time fixed by the Judge's order, the right of such executor or administrator 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. 597 Tit. X. Ch.IIl. OF EXECUTORS AND ADMINISTRATORS. i§ 5379-5386 When bond may be dispensed with. Petition show- ing failing sureties and asking for further bonds. Citation to executor, etc., to show cause against such application. Further security niay be ordered. Neglecting to obey order. Suspending powers of execu- tor, etc. Further security ordered without application of party in interest. Release of sureties. Sec. 5379. When it is expressly provided in the will of a testator that no bond is required of the executor, letters testamentary may issue and sales of real estate be made and confirmed without any bond being given; but an executor to whom letters are issued without bond, may at any time afterward (when it appears from any cause necessary or proper), be required to file a bond as in other cases. Sec. 5380. Any person interested in an estate may, by verified petition, represent to the Probate Judge that the sureties of the executor or administrator thereof have be- come or are becoming insolvent, or that they have removed or are about to remove from the Territory, or that from any other cause the bond is insufficient, and ask that further security be required. Sec. 5381. If the Probate 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 show cause why he should not give further security. The citation must be served personally 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 court or Judge may order. Sec. 5382. 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 ap- pears that the security is from any cause insufficient, he may make an order requiring the executor or administrator to give further security or to file a new bond in the usual form, within a reasonable time, not less than five days. Sec. 5383. If the executor or administrator neglects to comply with the order within the time prescribed, the Judge must, by order, revoke his letters, and his authority must thereupon cease. Sec. 5384. When a petition is presented praying that an executor or administrator be required to give further se- curity, or to give bond, where, by the terms of the will, no bond was originally required, and it is alleged on oath that the executor or administrator is wasting the property of the estate, the Judge may by order suspend his powers until the matter can be heard and determined. Sec. 5385. When it comes to his knowledge that the bond of any executor or administrator is, from any cause, insufficient, the Probate Judge, without any application, must cause him to be cited to appear and show cause why he should not give further security, and must proceed thereon as upon the application of any person interested. _ Sec. 5386. When a surety of any executor or adminis- trator desires to be released from responsibility on account of future acts, he may make application to the Probate Court or Judge for relief. The court or Judge must cause a citation to the executor or administrator to be issued, and served personally, requiring him to appear at a time and place to be therein specified, and to give other security. If he has absconded, left, or removed from the Territory, or if he cannot be found after due diligence and inquiry, service may be made as provided in section 5381. 598 §§ 5387-5394 OF EXECUTORS AND ADMINISTRATORS. Tit. X. Ch. III. Sec. 5387. If new sureties be given to the satisfaction of the Judge, he may thereupon make 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 administrator. Sec. 5388. If the executor or administrator neglects or refuses to give new sureties, to the satisfaction of the Judge, on the return of the citation, or within such reasonable time as the Judge shall allow, unless the surety making the ap- plication shall consent to a longer extension of time, the court or Judge must, by order, revoke his letters. Sec. 5389. The applications authorized by the nine pre- ceding sections of this chapter may be heard and determined at any time. All orders made therein must be entered up- on the minutes of the court. Sec. 5390. 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 administrator or executor dies, or is suspended or removed, the Probate Judge 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; or he may di- rect the Public Administrator of his county to take charge of the estate. Sec. 5391. The appointment may be made at anytime, and without notice, and must be made by entry upon the minutes of the court, specifying the powers to be exercised by the administrator, upon such order being entered, and after the person appointed has given bond, the clerk must issue letters of administration to such person, in conformity with the order. Sec. 5392. In making the appointment of a special ad- ministrator, the Probate Judge must give preference to the person entitled to letters testamentary or of administration, but no appeal must be allowed from the appointment. Sec. 5393. Before any letters issue to any special ad- ministrator, he must give bond in such sum as the Probate Judge may direct, with sureties to the satisfaction of the judge, conditioned for the faithful performance of his duties; and he must take the usual oath and have the same endorsed on his letters. Sec. 5394. The special administrator must collect and preserve for the executor or administrator, all the goods, chattels, debts, and effects of the decedent, all incomes, rents, issues and profits, claims and demands of the estate; must take the charge and management of, enter upon and preserve from damage, waste, and injury, the real estate, and for any such and all necessary purposes, may com- mence and maintain, or defend, suits and other le^al pro- ceedings, as an administrator; he may sell such perishable property as the Probate Court may order to be sold, and ex- ercise 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. 599 New sureties. Neglect to give new sureties forfeits letters. Applications to be determined out of term time. Special administrator, when appointed. Special letters may be issued out of term time. Preference given to persons entitled to letters. Special administrator to give bond and take oath . Duties of special administrator. Tit X. Ch. III. OF EXECUTORS AND ADMINISTRATORS. §§5395-5401 When letters testamentary or of administra- tion are granted, special adminis- trator's powers cease. Special administrator to render account. On proof of will, after grant of letters of admin- istration, letters revoked. Power of exe- cutor in such a case. Remaining administrator or executor to continue when his colleagues are disqualified. Who to act when all acting are incompetent. Executor or administrator may resign, when. Court to appoint successor. ' Liability of outgoer. Sec. 5395. When letters testamentary or of adminis- tration 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. Sec. 5396. The special administrator must render an account on oath, of his proceedings, in like manner as other administrators are required to do. Sec. 5397. If, after granting letters of administration on the ground of intestacy, a will of the decedent is duly proved and allowed by the court, the letters of administra- tion 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. Sec. 5398. In such case, the executor or the adminis- trator, with the will annexed, is entitled to demand, sue for, recover, and collect all the rights, goods, chattels, debts, and effects of the decedent remaining unadministered, and may prosecute to final judgment any suit commenced by the administrator before the revocation of his letters of ad- ministration. Sec. 5399. In case any one of several executors or ad- ministrators, to whom letters are granted, dies, becomes lunatic, is convicted of an infamous crime, or otherwise be- comes incapable of executing the trust; or in case the let- ters testamentary or of administration are revoked or an- nulled, with respect to any one executor or administrator, the remaining executor or administrator must proceed to complete the execution of the will or administration. Sec. 5400. If all such executors or administrators die or become incapable, or the power and authority of all of them is revoked, the Probate Court must issue letters of ad- ministration 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 to original letters of ad- ministration. 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. Sec. 5401. Any executor or administrator may, at any time, by writing, filed in the Probate Court, resign his ap- pointment, having first settled his accounts and delivered up all the estate to the person whom the court shall appoint to receive the same. If, however, by reason of any delays in such settlement and delivering up of the estate, or for any other cause, the circumstances of the estate or the rights of those interested therein require it, the court may, at any time before settlement of accounts and delivering up of the estate is completed, revoke the letters of such ex- ecutor or administrator, and appoint in his stead an admin- istrator, 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 administrator, or of the sureties on his bond, shall not be in any manner discharged, released, or affected, by such appointment or resignation. GOO §§ 5402-5407 OF EXECUTORS AND ADMINISTRATORS. Til. X Gh. III. Sec. 5402. All acts of an executor or administrator, 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 trust. Sec. 5403. A transcript from the minutes of the court, showing the appointment of any person as executor or ad- ministrator, together' with the certificate of the Clerk under his hand and the seal of his court, that such person has giv- en bond and been qualified, and that letters testament- ary or of administration have been issued to him and have not been revoked, shall have the same effect in evidence as the letters themselves. Sec. 5404 No Probate Court shall admit to probate any will, or grant letters testamentary or of administration, in any case where the Judge thereof is interested as next of kin to the decedent, or as a legatee or devisee under the will, or when he is named as executor or trustee in the will, or is a witness thereto, or is in any other manner inter- ested or disqualified from acting. Sec. 5405. When a petition is filed in the Probate Court praying for admission to the probate of a will, or for grant- ing letters testamentary or of administration, or when pro- ceedings are pending in the Probate Court for the settle- ment of an estate, and the presiding Judge of the Court is disqualified to act from any cause, upon his own or the mo- tion of any person interested in the estate, he must make an order transferring the proceeding to the Probate Court of an adjoining county; and the Clerk of the Court ordering the transfer must transmit to the Clerk of the Court to which the proceeding is ordered to be transferred, a certified copy of the order and all the papers on file in his office in the pro- ceeding; and thereafter the Probate Court to which the pro- ceeding is transferred shall exercise the same authority and jurisdiction over the estate, and all matters relating to the administration thereof, as if it had original jurisdiction of the estate. Sec. 5406. The transfer of a proceeding from one court to another, as provided for in the preceding section, shall not affect the right of any person to letters testamentary or of administration on the estate transferred, but the same persons are entitled to letters testamentary or of administra- tion on the estate in the order hereinbefore provided. If be- fore the administration is closed of any estate so transferred as herein provided, another person is elected or appointed, and qualified as Probate Judge of the county wherein such proceeding was originally commenced, who is not disquali- fied to act in the settlement of the estate, and the causes for which the proceeding was transferred no longer exist, any person interested in the estate may have the proceeding re- turned to the court from which it was originally transferred by filing a petition setting forth these facts and moving the court therefor. Sec. 5407. On hearing the motion, if the facts required by the preceding section to be set out in the petition are sat- isfactorily shown, and it further appears to the court that the convenience of parties interested would be promoted by such change, the Judge must make an order transferrii;^ 601 Acts of executor, etc , valid until hie power is revoked. Transcript of court. Minutes to be evidence. When Judge not to act. Judge being disqualified, proceedings to be transferred and where. Transfer not to change right to administer. Re-transfer, how made. When procc e<; ings to be re- turned to original court. Tit. X Ck, III. OF EXECUTORS AND ADMINISTRATORS. §§ 5408-5412 Suspension of powers of executor. the proceeding back to the Probate Court where it was orig- inally commenced; and the Clerk of the Court ordering the transfer must transmit to the Clerk of the Court in which the proceeding was originally commenced, a certifledv copy of the order and all the original papers on file in his office in the proceeding; and the court where the proceeding was originally commenced shall thereafter have jurisdiction and power to make all necessary orders and decrees to close up the administration of the estate. Sec. 5408. Whenever the Probate Judge has reason to believe, from his own knowledge or from credible informa- tion that any executor or administrator has wasted, embez- zled, or mismanaged, or is about to waste or embezzle the property of the estate committed to his charge, or has com- mitted or is about to commit, a fraud upon the estate, or is incompetent to act, or has permanently removed from the Territory, or has wrongfully neglected the estate or has long neglected to perform any act as such executor or adminis- trator, he must, by an order entered upon the minutes of the court, suspend the powers of such executor or adminis- trator until the matter is investigated. Sec. 5409. 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 ci- tation, or, if appearing, the court is satisfied that there exists cause for his removal, his letters must be revoked and let- ters of administration granted anew as the case may re- quire. Sec. 5410. At the hearing, any person interested in the estate may appear and file his allegation in writing, show- ing that the executor or administrator should be removed; to which the executor or administrator may demur or an- swer, as hereinbefore provided. The issues raised must be heard and determined by the court. Sec. 5411. If the executor or administrator has abscond- ed or conceals himself, or has removed or absented himself from the Territory, notice may be given him of the pendency of the proceedings by publication in such manner as the court may direct, and the court may proceed upon such no- tice as if the citation had been personally served. Sec. 5412. In the proceedings authorized by the pre- ceding 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, touch- ing his administration, and, upon his refusal so to do, may commit him until he obev, or may revoke his letters, or both. Executor to have notice of his suspension, and to be cited to appear '. Any party interested may appear on hearing. Notice to absconding executors and administrators . May compel attendance . 602 §§ 5420-5422 INVENTORY OF EFFECTS OF DECEDENTS. Tit.X. Gh.IV. CHAPTER IV. Of the Inventory and Collection of the Effects of Decedents. Section 5420. Inventory to be returned, including the homestead . Appraisement, and pay of ap- praisers. Oath of appraisers and inventory, how made. Inventory to account for moneys. If all money, no appraisements necessary. Effect of naming a debtor executor. Discbarge or bequest of debts against executor. To make oath to inventory. Letters may be revoked for neglect of administrator . Inventory of after discovered prop- erty. 5421. 5422. 5423. 542 4. 5425. 5426. 5427. 5428. Section 5429. Administrator and executor to pos- sess real and personal estate. 5430. Executor or administrator to de- liver real estate to heirs or de- visees at the end of ten months unless there are debts to be satisfied . 5431. Embezzling estate before grant of letters testamentary. 5432. Citation to person suspected to have embezzled estate, etc. 5433. Refusal to obey citation, penalty for, and for embezzlement. May be compelled to disclose by im- prisonment. Liable for double damages . 5434. Persons entrusted "with estate of decedent may be cited to account. Section 5420. Every executor or administrator must make and return to the court, at its first term after his ap- pointment, a true inventory and appraisement of all the es- tate of the decedent, including the homestead, if any, which has come to his possession or knowledge. Sec. 5421. To make the appraisement, the Probate Judge or Court must appoint three disinterested persons (any two of whom may act), who are entitled to receive a reasonable compensation for their services, not to exceed four dollars per day, to be allowed by the court or Judge. The appraisers must, with the inventory, file a verified ac- count of their services and disbursements. If any part of the estate is in any other county than that in which letters issued, appraisers thereof may be appointed, either by the Probate Judge, having jurisdiction of the estate, or by the Probate Judge of such other county, on request of the Judge having jurisdiction. Sec. 5422. Before proceeding to the execution of their duty, the appraisers, before any officer authorized to ad- minister oaths, must take and subscribe an oath, to be at- tached to the inventory, that they will truly, honestly, and impartially appraise the property exhibited to them, or which shall come to their knowledge, according to the best of their knowledge and ability. They must then proceed to estimate and appraise 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, a statement of all debts, partnerships, and other interests, bonds, mortgages, notes, and other securities for the payment of money belonging to the decedent, speci- fying the name of the debtor in each security, the date, the sum originally payable, the indorsements thereon (if any), with their dates, and the sum which, in the judgment of the appraiser, maybe collected on each debt, interest, or security; the inventory must show, so far as the same can be ascertained by the executor or the administrator, what portion of the property is community property and what portion is the separate property of the decedent. 603 Inventory to be returned including homestead. Appraisement and pay of appraisers. Oath of appraisers and inventory, how made. Tit.X. Ch.IV. INVENTORY OF EFFECTS OF DECEDENTS. §§ 5423-5429 Inventory to account for moneys. If all money no appraisment necessary. Effect of naming a debtor executor. Discharge or bequest of debt against executor. To make oath to inventory. Letters may be revoked for neglect of administrator. Inventory of after discovered property. Administrator and executor to possess real and personal estate. Sec. 5423. 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 appraise- ment, but an inventory must be made and returned as in other cases. Sec. 5424. The naming of a person as executor does not thereby discharge him from any just claim which the testator has against him, but the claims 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 de- mand becomes due. Sec. 5425. 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 demand or debt. It must be included in the inventory, and, if necessary, ap- plied in the payment of the debts. If not necessary for that purpose, it must be paid in the same manner and pro- portion as other specific legacies. Sec. 5426. The inventory must be signed by the ap- praisers, and the executor or administrator must take and subscribe an oath before an officer authorized to administer oaths, that the inventory contains a true statement of all the estate of the decedent which has come to his knowledge or possession, and particularly of all money belonging to the decedent, and of all just claims of the decedent against the affiant. The oath must be indorsed upon or annexed to the inventory. Sec. 5427. 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 court or Judge shall, for 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. Sec. 5428. Whenever property of more than two hun- dred and fifty dollars in value, not mentioned in an inven- tory 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 this chap- ter, and an inventory thereof to be returned within two months after the discovery; and the making of such inven- tory may be enforced after notice, by attachment or re- moval from office. Sec. 5429. The executor or administrator is entitled to the possession of all the real and personal estate of the de- cedent, and to receive the rents and profits of the real estate, 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 tenan table repair all houses, buildings, and fixtures thereon, which are under his control. The heirs or devisees may themselves, or jointly with the execu- tor or 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 administra- 604 5430-5433 INVENTORY OF EFFECTS OF DECEDENTS. Tit. X. Ch. IV. Executor or administrator to deliver real estate to heirs, etc., at end of ten months, unless debts are to be satisfied. Embezzling estate before grant of letters testamentary. Citation to person suspect- ed to have embezzled estate, etc. tor; but this section shall not be construed as requiring them so to do. Sec. 5430. Unless it satisfactorily appears to the Pro- bate Court, that the rents, issues and profits of the real es- tate for a longer period, are necessary to be received by the executor or administrator, wherewith to pay the debts of the decedent, or that it will probably be necessary to sell the real estate for the payment of such debts, at the end of the time limited for the presentation of claims against the estate, the court must direct the executor or administrator to deliver possession of all the real estate to the heirs at law or devisees. Sec. 5431. If any person before the granting of letters testamentary or of administration, embezzles or alienates any of the moneys, goods, chattels or effects of a decedent, he is chargeable therewith and liable to an action by the ex- ecutor 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. Sec. 5432. If any executor, administrator or other per- son interested in the estate of a decedent, complains to the Probate Judge on oath, that any person is suspected to have concealed, 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 dece- dent to any real or personal estate, or any claim or demand, or any 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 such person is not in the county where letters have been granted, he may be cited and examined, either before the Probate Court of the county where he is found, or before the court issuing the citation. But if in the latter case he appears and is found innocent, his necessary expenses must be allowed him out of the estate. Sec. 5433. If the person so cited refuses to appear and submit to an examination, or to answer such interrogatories 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 court, or is discharged according to law. If upon such examination it appears that he has concealed, embezzled, smuggled, conveyed away or dis- posed of any moneys, goods or chattels of the decedent, or that he has in his possession or knowledge any deeds, con- veyances, bonds, contracts or other writings tending to dis- close the right, title, interest or claim of the decedent to any real or personal estate, claim or demand, or any last 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 the county jail there to remain until the order is complied with or he is discharged according to law; and all such interrog- atories and answers must be in writing, signed by the party examined, and be filed in the Probate Court. The order for such disclosure made upon such examination, is primary Refusal to obey citation, penalty for and for embezzlement. May be com- pelled to dis- close by imprisonment 605 Tit. X. Ch. V. SUPPORT OF THE FAMILY AND HOMESTEAD. §§ 5434-5441 evidence of the right of such administrator to such property in any action brought for the recovery thereof; and any judgment recovered therein must be for double the value of the property as assessed by the court or jury, or for re- turn of the property, and damages in addition thereto, equal to the value of such property. In addition to the ex- amination of the party, witnesses may be produced and ex- amined on either side. Sec. 5434. The Probate Judge, upon the complaint, on oath, of any executor or administrator, may cite any person who has been entrusted with any part of the estate of the decedent, to appear before such court, and require him to render a full account, on oath, of any moneys, goods, chat- tels, 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 his proceedings there- on; and if the person so cited refuses to appear and render such account, the court may proceed against him as pro- vided in the preceding section. Liable for double damages. Persons entrusted with estate may be cited to account. Widow and minor children may remain in decedent's house, etc. All property exempt from execution to be set apart for family. CHAPTER V. Of the Provision for the Support of the Family, and of the Homestead. 5441. 5442. 5443. 5444. 5445. 5446. 5447. 5448. Section 5449 . Appraisers to carve out of the origi- nal exceeding five thousand dol- lars in value, a homestead, and re- port the same. 5450. Report of the appraisers. Majority and minority, which may be con- firmed . 5451. Day to be set for confirming or re- jecting the report of the ap- praisers. Appeal. 5452. Costs, to whom chargeable. Per- sons succeeding to rights of home- stead owners have all their powers and rights. Certified copies of certain orders to be recorded. 5453. Section 5440. Widow and minor children may re- main in decedent's house, etc. All property exempt from execu- tion to be set apart for use of family . May make extra allowance. Payment of allowance. Property set apart, how apportioned between widow and children. Estates less than fifteen hundred dollars to go to wife and child, or to be summarily administered. When all property to go to children. Rights of survivor to homestead. Selected and recorded homestead set off to person entitled. Sub- sisting liens to be paid by solvent estate. Section 5440. When a person dies leaving a widow or minor children, the widow or children, until letters are granted and the inventory is returned, are entitled to remain in possession of the homestead, of all the wearing apparel of the family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their sup- port, to be allowed by the Probate Judge. Sec. 5441. Upon the return of the inventory, or at any subsequent time during the administration, the court or the Probate Judge may, on his own motion or on petition there- for, set apart for the use of the surviving husband or wife, or the minor children of the decedent, all property exempt from execution, including the homestead selected, desig- nated, and recorded. If none has been selected, designated and recorded, the Judge or the court must select, designate, set apart, and cause to be recorded, a homestead for the use of the persons hereinbefore named in the manner provided in this chapter, out of the real estate belonging to the dece- dent. 606 $ 5442-5445 SUPPORT OF THE FAMILY AND HOMESTEAD. Tit. X. Ch. V. Sec. 5442. If the amount set apart be insufficient for the support of the widow and children, or either, the Pro- bate Court or Judge must make such reasonable allowance out of the estate as shall be necessary for the mainte- nance of the family, according to their circumstances, during the progress of the settlement of the estate; which, in case of an insolvent estate, must not be longer than one year af- ter granting letters testamentary or of administration. Sec. 5443. Any allowance made by the court or Judge, in accordance with the provisions of this chapter, must be paid in preference to all other charges except funeral charges and expenses of administration: and any such al- lowance, whenever made, may, in the discretion of the court or Judge, take effect from the death of the decedent. Sec. 5444. When property is set apart to 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 or children, the one-half of such property shall belong to the widow or surviving husband, and the remainder to the child, or in equal shares to the children, if there be more than one. If there be no widow or surviving husband, the whole belongs to the minor child or children. If the prop- erty set apart be a homestead, selected from the separate property of the deceased, the court can only set it apart for a limited period, to be designated in the order, and the title vests in the heirs of the deceased, subject to such order. Sec. 5445. If, upon the return of the inventory of the estate of a deceased person, it shall appear therefrom that the value of the whole estate does not exceed the sum of fif- teen hundred dollars, and if there be a widow or minor children of the deceased, the court or a judge thereof shall, by order, require all persons interested to appear on a day fixed, to show cause why the whole of said estate should not be assigned for the use and support of the family of the deceased. Notice thereof shall be given and proceedings had in the same manner as upon the settlement of accounts of executors and administrators. If, upon the hearing, the court finds that the value of the estate does not exceed the sum of fifteen hundred dollars, it shall, by a decree for that purpose, assign for the use and support of the widow and minor children, if there be a widow and minor children, and if no widow, then for the children, if there be any, and if no children, then for the widow, the whole of the estate, after the payment of the expenses of the last illness of the de- ceased, funeral charges and expenses of administration, and there must be no further proceedings in the administration, unless further estate be discovered; and when it so appears that the value of the whole estate does not exceed the sum of fifteen hundred dollars, it is in the discretion of the Probate Court to dispense with the regular proceedings, or any part thereof, prescribed in this Title, and there must be had a summary administration of the estate, and an order of distribution thereof at the end of six months after the issuing of letters; the notice to creditors must be given to present their claims within four months after the first pub- 607 May make extra allowance. Payment of allowances. Property set apart, how apportioned between sur- vivors and children. Estates loss than fifteen hundred dollars to go to wife and child, or to be summarily administered. Tit. X. Ch. V. SUPPORT OF THE FAMILY AND HOMESTEAD. §§ 5446-5449 When all property to go to children. Kights of survivor to homestead. lication of such notice, and those not so presented, are barred as in other cases. Sec. 5446. If the widow has a maintenance derived from her own property equal to the portion set apart to her by the preceding sections of this chapter, the whole prop- erty so set apart, other than her half of the homestead, must go to the minor children. Sec. 5447. If the homestead selected by the husband and wife or either of them, during their coverture, and re- corded while both were living, was selected from the com- munity property, or from the separate property of the per- son selecting or joining in the selection of the same, it vests, on the death of the husband or wife, absolutely in the sur- vivor. If the homestead was selected from the separate property of either the husband or the wife, without his or her consent, it vests, on the death of the person from whose property it was selected, in his or her heirs, subject to the power of the Probate Court to assign it for a limited period, to the family of the decedent. In either case it is not sub- ject to the payment 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 in satisfaction of judgments obtained: 1. Before the declaration of homestead was filed for rec- ord and which constitute liens upon the premises; 2. On debts secured by mechanics', laborers' or venders' liens upon premises; 3. On debts secured by mortgages on the premises, exe- cuted and acknowledged for any portion of the purchase price thereof, or by the husband and wife, or by an unmar- ried claimant; 4. On debts secured by mortgages on the premises exe- cuted and recorded before the declaration of homestead was filed for record. Sec. 5448. If the homestead selected and recorded prior to the death of the decedent is returned in the inventory, appraised at not exceeding five thousand dollars in value, the Probate Court must, by order, set it off to the persons in whom title is vested by the preceding section. If there are subsisting liens or incumbrances on the homestead, they must be paid out of the funds of the estate, if there remain sufficient for that purpose, after the payment of all claims allowed against the estate. Sec. 5449. If the homestead, as selected and recorded, be appraised at more than five thousand dollars, the ap- praisers must, before they make their return, determine whether the premises can be divided without material inju- ry, and if they find that they can be thus divided, they must admeasure and set apart to the parties entitled thereto such portion of the premises, including the dwelling house, as will amount in the value to the sum of five thousand dollars, and make report thereof, giving the metes, bounds and full description of the portion set apart as a homestead. If the appraisers find that the premises exceeded in value, at the time of their selection, the sum of five thousand dollars, and that they cannot be divided without material injury, they must report such finding, and thereafter the court Selected and recorded home* stead set off to person'entitled. Subsisting liens to be paid by solvent estate . Appraisers inP,D case homestead ■woi th over five thousand dollars - 608 §£ 5450-5460 OF CLAIMS AGAINST THE ESTATE. Tlt.X. Ch. VI. Report of appraisers. Day for con- firming or rejecting report of appraisers. may make an order for the sale of the premises and the distribution of the proceeds to the parties entitled thereto. Sec. 5450. Any two of the appraisers concurring, may discharge the duties imposed upon the three, and make the report. A dissenting report may be made by the third ap- praiser. The report must state fully the acts of the apprais- ers. Both reports may be heard and considered by the court in determining a confirmation or rejection of the majority report, but the minority report must in no case be con- firmed. Sec. 5451. When the report of the appraisers is filed, the court must set a day for hearing any objections thereto, from any one interested in the estate. Notice of the hear- ing must be given for such time and in such manner as the court may direct. If the court be satisfied that the report is correct, it must be confirmed, otherwise rejected. In case the report is rejected, the court may appoint new ap- praisers to examine and report upon the homestead, and similar proceedings may be had for the confirmation or re- jection of their report as upon the first report. Sec. 5452. The costs of all proceedings in the Probate Court provided for in this chapter, must be paid by the es- tate as expenses of administration. Persons succeeding by purchase, or otherwise, to the interests, rights and title of successors to homesteads, or to the right to have home- steads set apart to them as in this chapter provided, have all the rights and benefits conferred by law on the persons whose interests and rights they acquire. Sec. 5453. A certified copy of every final order made in pursuance of this chapter, by which a report is con- firmed, property assigned or sale confirmed, must be record- ed in the office of the Recorder of the county where the home- stead property is situated. Costs, to whom chargable. Certified copies of certain orderi to be recorded. CHAPTER VI. Of Claims Against the Estate. Section 5460. 5461. 5462. 5463. 5464. 5465. 5466. 5467. 5468. 5469. 5470. Notice to creditors . Additional no- tice. Time expressed in the notice. Copy and proof of notice to be filed and order made . Time within which claims against an estate must be presented. Claims to be sworn to, and when al- lowed, to bear same interests as judgments. Probate Judge may present claim, and action thereon. Allowance and rejection of claims. Approved claims or copies to be filed. Claims secured by liens may be described. Lost claims. Rejected claims to be sued for with in three months. Claims barred by statute of limita- tions. When and who Probate Judge may examine. Claims must be presented before suit. Section 5471. 5472. 5473. 5474. 5475 . 5476, 5477. 5478. 5479. 54*0. 5481. 5482. 5483. Time of limitation. Claims in action pending at time of decease. Allowance of claim in part. Effect of judgment against execu- tion. Execution not to issue after death. If one is levied, the property may be sold. What judgment is not a lien on real property of estate. May refer doubtful claims. Effect of referees allowance or rejection. Trial by referee, how confirmed, and its effect. Liability of, executor, etc., for costs. Claims of executor, etc., against es- tate. Executor neglecting to give notice to creditors, to be removed. Executor to return statement of claims. Payment of interest on claims. Section 5460. Every executor or administrator must, Notice to immediately after his appointment, cause to be published in creditors. some newspaper of the county, if there be one, if not, then in such newspaper as may be designated by the court, a no. 39 009 TitS. Ch.VI. OF CLAIMS AGAINST THE ESTATE. g§ 5461-5465 Additional notice. Time expressed in the notice. Copy and proof of notice to be filed and order made. tice to the creditors of the decedent, requiring all persons having claims against him to exhibit them with the neces- sary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice. Such notice must be published as often as the Judge or court shall direct, but not less than once a week for four weeks. The court or Judge may also direct additional notice by publication or posting. In case such executor or adminis- trator resigns, or is removed, before the time expressed in the notice, his successor must give notice only for the un- expired time allowed for such presentation; Provided, That when no newspaper is published in the county, the no- tice shall be posted in not less than three public places in the county, one of which shall be at the court house door, for such time, not less than four weeks, as the court may order. Sec. 5461. The time expressed in the notice must be ten months after its first publication, when the estate ex- ceeds in value the sum of fifteen hundred dollars, and four months when it does not. Sec. 5462. After the notice is given, as required in 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, and directing that such order or decree be entered in the minutes and recorded, must be made by the court. Sec. 5463. All claims arising upon contracts, 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, hoivever, That when it is made to appear by the affidavit of the claimant, to the satisfaction of the court or a Judge thereof that the claim- ant had no notice as provided in this chapter, by reason of being out of the Territory, it may be presented at any time before a decree of distribution is entered. Sec. 5464. Every claim which is due, when presented to the executor or administrator, must be supported by the affidavit of the claimant, 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 off- sets to the same, to the knowledge of the affiant. If the claim be not due when presented, or be contingent, the par- ticulars 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 oath may be taken before any officer au- thorized to administer oaths. The executor or administrator may also require satisfactory vouchers or proofs to be pro- duced in support of the claim. If the estate be insolvent, no greater rate of interest shall be allowed upon any claim af- ter the first publication of notice to creditors than is allowed on judgments obtained in the District Court. Sec. 5465. Any Probate Judge may present a claim against the estate of a decedent, for allowance, to the exe- cutor or administrator thereof; and if the executor or ad- ministrator allows the claim, he must, in writing, designate 610 Time within which claims must be presented. Claims to be sworn to, and when allowed, to hear same interests as judgments. Probate judge may present claim, and action thereon. 5466-5468 OF CLAIMS AGAINST THE ESTATE. Tit. X. Ch. VI. Allowance and rejection of claims. some Probate Judge of an adjoining county, who, upon the presentation of such claim to him, is vested with the same power to allow or reject it as he would have if the will had been proved or administration granted in his own county; and the Probate Judge presenting such claim, in case of its rejection by the executor or administrator, or by such Pro- bate Judge as shall have acted upon it, 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. Sec. 5466. When a claim, accompanied by the affidavit required in this chapter, is presented to the executor or ad- ministrator, he must indorse thereon his allowance or rejec- tion, with the day and date thereof. If he allows the claim, it must be presented to the Probate Judge for his approval, who must, in the same manner, indorse upon it his allow- ance or rejection. If the executor or administrator, or the Judge, refuse or neglect to indorse such allowance or rejec- tion for ten days after the claim has been presented to him, such refusal or neglect is equivalent to a rejection; and if the presentation be made by a Notary, the certificate of such Notary, under seal, is primary evidence of such presentation 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. Sec. 5467. Every claim allowed by the executor or ad- ministrator, and approved by the Probate Judge on 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 in- strument must accompany the claim, and the original in- strument 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 de- scription of such instrument, and stating its loss or destruc- tion. If the claim or any part thereof is secured by a mort- gage or other lien which has been recorded in the office of the Recorder of the county in which the land affected by it lies, it is sufficient to describe the mortgage on lien, and re- fer to the date, volume, and page of its record. If, in any case, the claimant has left any original voucher in the hands of the executor or administrator, or suffered the same to be filed in court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allowance. £>ec. 5468. When a claim is rejected, either by the ex- ecutor or administrator, or the Probate Judge, the holder must bring suit in the proper court 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. Approved claim e or copies to be filed. Claims secured by lien may be described. Lost claims. Rejected claims sued for within three months. 611 Tit.X. Ch. VI. OF CLAIMS AGAINST THE ESTATE. 5469-5475 Claims barred by statute of limitations. Claims must be presented before suit. Time of limitation. Claims in action pending at time of decease. Allowance of claim in part. Effect of judgment against execu- tor. Execution not ito issue after death. Sec. 5469. No claim must be allowed by the executor or administrator, or by the Probate Judge, which was barred by the statute of limitations, at the time of the death of the decedent. When a claim is presented to the Probate Judge for his allowance, he may, in his discretion, exam- ine the applicant and others, on oath, and hear any other legal evidence touching the validity of the claim. Sec. 5470. No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator except, in the fol- lowing case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint. Sec. 5471. The time during which there shall be a va- cancy in the administration, must not be included in any limitations herein prescribed. Sec. 5472. If an action is pending against the decedent at the time of his death, the plaintiff must in like manner present his claim to the executor or administrator for allow- ance or rejection, authenticated as required in other cases; and no recovery shall be had in the action unless proof be made of the presentations required. Sec. 5473. Whenever any claim is presented to an ex- ecutor or administrator, or to the Probate Judge, and he is willing to allow the same in part, he must state in his in- dorsement the amount he is willing to allow. If the credi- tor refuse to accept the amount allowed in satisfaction of his claim, he shall recover no costs in any action therefor, brought against the executor or administrator, unless he re- covers a greater amount than that offered to be allowed. Sec. 5474. A judgment rendered against an executor or administrator upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner, as if it had been allowed by the executor or ad- ministrator and the Probate Judge, and the judgment must be that the executor or administrator pay in due course of ad- ministration the amount ascertained to be due. A certified transcript of the judgment must be filed in the Probate 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. Sec. 5475. When any judgment has been rendered for or against the testator intestate in his lifetime, no execution shall issue thereon after his death, except as provided in Part Second of this Code. A judgment against the dece- dent for the recovery of money, must be presented to the executor or administrator like any other claim. If execu- tion is actually levied upon any property of the decedent before his death, the same may be sold for the satisfaction thereof; and the officer making the sale must account to the executor or administrator for any surplus in his hands. A judgment creditor having a judgment which was ren- dered against the testator or intestate in his lifetime, may redeem any real estate of the decedent from any sale under foreclosure or execution in like manner and with like effect, as if the judgment debtor were still living. 612 §§5476-5482 OF CLAIMS AGAINST THE ESTATE. TU.X. Ch.VI. Sec. 5476. A judgment rendered against a decedent, dying after verdict or decision on an issue of fact, but be- fore judgment is rendered thereon, is not a lien on the real property of the decedent, but is payable in due course of ad- ministration. Sec. 5477. If the executor or administrator doubts the correctness of any claim presented to him, he may enter in- to an agreement, in writing, with the claimant, to refer the matter in controversy to some disinterested person, to be ap- proved by the Probate Judge. Upon filing the agreement and approval of the Probate Judge in the office of the Clerk of the District Court for the county 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 con- firmed, establishes or rejects the claim, the same as if it had been allowed or rejected by the executor, or administrator and the Probate Judge. Sec. 5478. The referee must hear and determine the matter, and make his report thereon to the court in which his 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 re- spects as if the same had been rendered in a suit commenced by ordinary process. Sec. 5479. When a judgment is recovered, with costs, against any executor or administrator, he shall be individu- ally liable for such costs, but they must be allowed him in his administration accounts, unless it appears that the suit or proceeding in which the costs were taxed was prosecuted or defended without just cause. Sec. 5480. If the executor or administrator is a creditor of the decedent, his claim, duly authenticated by affidavits, must be presented for allowance or rejection to the Probate Judge, and its allowance by the Judge is sufficient evidence of its correctness, and it must be paid as other claims, in due course of administration. If, however, the Probate Judge rejects the claim, action thereon may be had against the es- tate by the claimant, and summons must be served upon the Probate Judge, who may appoint an attorney at the ex- pense of the estate, to defend the action. If the claimant recovers no judgment, he must pay all costs, including de- fendant's attorney's fees. Sec. 5481. If an executor or administrator neglects for two months after his appointment to give notice to creditors, as prescribed by this chapter, the court must revoke his let- ters, and appoint some other person in his stead, equally or the next in order entitled to the appointment. Sec. 5482. 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 613 What judgment is not a lien on real property of estate. May refer doubtful claims. Effect of referee's allowance or rejection. Trial by referee how confirmed and its effect. Liability of executor, etc. for costs. Claims of executor, etc. against an estate. Executor neglecting to give notice to creditors, to be removed . Executor to return statement of claims. Tit. X. Ch. VIL CONVEYANCES OF PROPERTY OF DECEDENT. §£ 5483-5490 Payment of interest on claims. 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 statements he must designate the names of the creditors, the nature of each claim, when it becomes due or will be- come due, and whether it was allowed or rejected by him. Sec. 5483. If there be any debt of the decedent bearing interest, whether presented or not, the executor or adminis- trator may, by order of the court, pay the amount then ac- cumulated 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 existing debts, unless the creditor consent to accept the amount. CHAPTER VIL Of Sales and Conveyances of Property of Decedent. Personal estate first chargeable. Real estate, when sold. Section 5490. Personal estate first chargeable. Real estate, when sold. No sales valid except by order of Probate Court. Applications for orders of sale. But one petition, order, and sale, must be had when it is possible to do so. Perishable and depreciating prop- erty to be sold. Order to sell personal property. Partnership interests and choses in action, how sold. Order of sale, what to direct, and what to be first sold. Sale of personal property. Mines may be sold, how. Petition for sale, who may file and what to contain. Order to show cause, how made, and on what notice. Order of sale, when and how made. Further proceedings to conform to the proceedings upon the sale of real estate. To sell real estate, when. Verified petition for sale, what to contain, and to what it may refer. Order to persons interested to ap- pear. Copy to be served, assent given, or publication made. Hearing after proof of service. Administrator, executor, and wit- ness may be examined. To sell real estate or any part, when. Order of sale, when to be made. What the order of sale must con- tain. May be at public or private sale. Interested persons may apply for order of sale. Form of petition. To deliver copy of order to execu- tor. Notice of sale. 5491. 5492. 5493 5494. 5495. 5496. 5497. 5498. 5499. 5500. 5501. 5302. 5503. 5504. 5505. 5506. 5507. 5508. 5509. 5510. 5511. 5512. 5513. 5514. 55 1C. estate, how Bids, when Section 5516. Time and place. Private sale of real made, and notice, and how received. Ninety per cent of appraised value must be offered. Purchase money on sale on credit, how secured. Hearing and setting aside sale, and when resale may be ordered. May file objections, when and who. When order of confirmation is to be made, and when not. Conveyances. Order of confirmation, what to state. Sale may be postponed. Notice of postponement. Where payment of debts etc., pro- vided for by will. Sale without order, may require se- curity. Where provision by will insuffi- cient. Estates subject to debts, etc. Contribution among legatees. Contract for purchase of lands may be sold, how. Conditions of sale. Purchaser to give bond. Executor to assign contract. Sales by executors or administrators of lands under mortgage or lien. The holder of the mortgage or lien may purchase the lands. His re- ceipt to the amount of his claim a valid payment. Administrator and executor liable for misconduct in sale. Fraudulent sales. Limitation of actions for vacating sale, etc. To what cases preceding section not to apply. Account of sale to be returned. Executor, etc., not to be purchaser. 5517. 5518. 5519. 5520. 5521. 5522. 5523. 5524. 5525. 5526. 5527. 5528. 5529. 5530. 5531. 5532. 5533. 5534. 5535. 5536. 5537. 5538. 5539. 5540. 5541. o542. 5543. Section 5490. The personal estate of the decedent which comes into the hands of the executor or administrator is first chargeable with the payment of the debts and expenses; if the goods, chattels, rights, and credits in the hands of the executor or administrator are not sufficient to pay the debts of the decedent, the expenses of administration, and the al- lowance to the family, the whole of the real estate may be sold for that purpose by the executor or administrator. 614 j§ 5491-5496 CONVEYANCES OF PROPERTY OF DECEDENT. Tit.X. Ch. VII. Sec. 5491. No sale oi; any property of an estate of a de- cedent is valid unless made under order of the Probate Court, except as otherwise provided in this chapter. All sales must be reported under oath, and confirmed by the Probate Court, before the title of the property sold passes. Sec. 5492. All petitions for orders of sale must be in writing, setting forth the facts showing the sale to be nec- essary, 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 Eroceedings, if the defect be supplied by the proofs at the earing, and the general facts showing the necessity be stated in the order directing the sale. Sec. 5493. 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, to pay the family allow- ance, expenses of administration, and debts, there need be but one petition filed, but one order of sale made, and but one sale had, except in the case 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 in- quire fully into the probable amount required to make all such payments, and if there be no more estate than suffi- cient to pay the same, may require but one proceeding for the sale of the entire estate. In such case the petition must set forth substantially the facts required in a petition for the sale of real estate. Sec. 5494. At any time after receiving letters the exec- utor, administrator, or special administrator, may apply to the court or Judge and obtain an order to sell perishable and other personal 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 al- lowance made to the family of the decedent. The order for the sale may be made without notice; but the executor, ad- ministrator, or special administrator is responsible for the property, unless, after making a sworn return, and on a proper snowing, the court shall approve the sale. Sec. 5495. If claims against the estate have been al- lowed and a sale of property is necessary for their payment or the expense of administration, the executor, or adminis- trator may apply for an order to sell so much of the person- al 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, eith- er 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 is made to appear for the best interests of the estate, he may at any time after filing the inventory, in like manner and after giving like notice, apply for and ob- tain an order to sell the whole of the personal property be- longing to the estate, whether necessary to pay debts or not. Sec. 5496. Partnership interests or interests b< 'long- ing to any estate by virtue of any partnership formerly ex- isting, interest in personal property pledged, and choses in 615 No sales valid, except by order of probate court. Applications for orders of sale, etc. But one petition, order, and sale must be had, except in case of perishable property. Perishable and depreciating property to be sold. Order to sell personal property-. Partnership interests and choses in action, how sold. Tit.X.Ch.VIL CONVEYANCES OF PROPERTY OF DECEDENT. §§5497-5501 Order of sale, what to direct, etc. Sale of personal property. action, may be sold in the same manner as other personal property when it appears to be for the best interest of the estate. Before confirming the sale of any partnership inter- est, whether made to the surviving partner or to aiiy other person, the court or Judge must carefully inquire into the con- dition of the partnership affairs, and must examine the sur- viving partner if in the county and able to be present in court. Sec. 5497. If it appears that a sale is necessary for the payment of debts or the family allowance, or for the best in- terest of the estate and the persons interested in the proper- ty 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, the court or Judge must so direct; and such articles as are not necessary for the sup- port and subsistance of the family of the decedent, or are not specially bequeathed, must be first sold. Articles be- queathed must not be sold to pay debts or family allowance, until all other personal estate has been applied to the pay- ment thereof. Sec. 5498. The sale of personal property must be made at public auction, and after public notice, given for at least ten 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 prop- erty to be sold; unless for good reason shown, the Probate Court or Judge orders a private sale, or a shorter notice. Public sales shall not be made of any property which is not present at the time of selling it, unless the court otherwise order. Sec. 5499. When it appears from the inventory of the estate of any decedent that his estate consists in whole or in part of mines or interests in mines, such mines or inter- ests may be sold under the order of the Probate Court hav- ing jurisdiction of the estate, as hereinafter provided. Sec. 5500. The executor, administrator, or any heir at law, or creditor of the estate, any partner or member of any mining company in which interests or shares are held or owned by the estate, may file in the Probate Court a pe- tition in writing, setting forth the general facts of the es- tate being then in due course of administration, and partic- ularly describing the mine, interest, or shares which it is desired to sell, and particularly the condition and situation of the mines or mining interests, or of the mining company in which such interests or shares are held, and the grounds upon which the sale is asked to be made. Sec. 5501. Upon the presentation of such petition the Probate Judge must make an order directing all persons in- terested to appear before him 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 such mines, mining interests, shares, or stocks, as are set forth in the petition and belonging to the estate. A copy of the order to show cause must be personally served on all per- sons interested in the estate, at least ten days before the time appointed for hearing the petition, or published at 616 Mines may be sold, how. Petition for sale, who may file and what to contain. Order to show cause, how made and on what notice. )§ 5502-5507 CONVEYANCES OF PROPERTY OF DECEDENT. Tit. X. Ch. VII. Order of sale, wheu and how made. Further proceedings. To sell real estate, when. Verified petition lor sale, what to contain, etc. least four successive weeks in such newspaper as the court shall specify. If all persons interested in the estate signify in writing their assent to such sale, the notice may be dis- pensed with. Sec. 5502. If upon hearing the petition, it appears to the satisfaction of the Probate Judge that it is to the inter- est of the estate that such mining property or interests of the estate should be sold, or if it appears to his satisfaction that an immediate sale is necessary in order to secure the just rights or interests of the mining partners, or tenants in common, such Probate Judge must make an order au- thorizing the executor or administrator to sell such mining interests, mines, or shares, as hereinafter provided. Sec. 5503. After the order of sale is made, all further proceedings for the sale of such mining property, and for the notice, report, and confirmation thereof, must be as pro- vided upon the sale of real estate. Sec. 5504. When the personal estate in the hands of the executor or administrator is exhausted or insufficient to pay the allowance of the family, the debts outstanding against the decedent, and the debts, expenses, and charges of administration, the executor or administrator may sell the real estate for that purpose, upon the order of the Pro- bate Court. Sec. 5505. To obtain such order he must present a verified petition to the Probate Court, or to the Judge at chambers, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, re- mains undisposed of; the debts oustanding against the de- cedent, 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 an esti- mate of what will or may accrue during the administration; a description of all the real estate of 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 of the respective portions and lots thereof, and whether the same be community or separate property ; the names and ages of the devises, if any, and of the heirs of the decedent. If all the matters above enumerated cannot be ascertained it must be so stated in the petition. Sec. 5506. If it appears to the court or Judge, from such petition, that it is necessary to sell the whole or some portion of the real estate for the purposes and reasons men- tioned in the preceding section, or any of them, such peti- tion 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. Sec. 5507. A copy of the order to show cause must be personally served on all persons interested in the estate, and on any general guardian of any minor, devisee, or heir of the decedent resident in the county, at least five days before the time appointed for hearing the petition, or must be pub- 617 Order to persona interested to appear. Copy to be sorved, assent given, or publi- cation made. Tit.X. Ch. VLL CONVEYANCES OF PROPERTY OF DECEDENT. §§5508-5512 Hearing after proof of service. Administrator, etc . , may be examined. To sell real estate or any part, when. lished at least four successive weeks in such newspaper as the court or Judge shall direct. The notice is served if the publication is completed five days before the day set for hearing. If all persons inter- ested in the estate join in the petition for the sale, or signify in writing their assent thereto, the notice may be dispensed with. Sec. 5508. 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 affida- vit or otherwise, if the consent in writing to such sale of all parties interested is not filed, must proceed to hear the peti- tion, and hear and examine the allegations and proofs of the petitioners, and of all persons interested in the estate who may oppose the application. Sec. 5509. 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 Probate Judge, in the same manner and with like effect as in other cases. Sec. 5510. If it appears necessary to sell a part of the real estate, and that by a sale thereof the residue of the es- tate, 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 any 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. Sec. 5511. If the court is 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 chapter, or if such sale be assented to by all the persons interested, an order must be made to sell the whole, or so much and such parts of the real es- tate described in the petition as the court shall judge neces- sary or beneficial. Sec. 5512. The order of the sale must describe the lands to be sold and the terms of sale, which may be for cash or on a credit not exceeding one year, payable in gross or in installments, and in such kind of money, 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 other- wise specially directs. If it appears that any part of such real estate has been de- vised 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 or- dered 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 618 Order of sale, when to be made. What order of sale must contain . May be at public or private sale. §§5513-5517 CONVEYANCES OF PROPERTY OF DECEDENT. Tit.X. Ch. VII. Interested persons niay apply for order of sale. Form of petition. To deliver copy of order to executor. Notice of sale. 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 administrator neglects or refuses to make a sale under the order and as directed therein, he may be compelled to sell by order of the court, made on motion after due notice, by any party interested. Sec. 5513. If the executor or administrator neglects to apply for an order of sale when it is necessary, any person interested in the estate may make application therefor, in the same manner as the executor or administrator, and no- tice 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 in petitions of exe- cutors and administrators as he can ascertain, and the de- cree of sale must fix the period of time within which the ex- ecutor or administrator must make the sale. Sec. 5514. Upon making the order mentioned in the last section, a certified copy of the order of sale must be de- livered by the court or the Clerk to the executor or adminis- trator, who is thereupon authorized and required to sell the real estate as directed. Sec 5515. 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 more, then in such paper as the court may direct, for three weeks suc- cessively next before the sale. The lands and tenements to be sold must be described with common certainty in the notice. Sec. 5516. Sales at public auction must be made in the county where the land is situated; but when the land is sit- uated in two or more counties, it may be sold in either. The sale must be made between the hours of nine o'clock in the morning and the setting of the sun on the same day, and must be made on the day named in the notice of sale, unless the same is postponed. Sec. 5517. 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 de- scribed with common certainty. The notice must state a day on or after 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 publication of notice, and the sale must not be made before that day, but must be made within six months thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice, or deliver to the executor or administrator personally, or may be filed in the office of tin; Clerk of the Probate Court, to which the return of sale must be made, at any time after the first publication of the notice, and before the making of the sale. If it is shown Time and place. Private sale of real estate, how made, etc. Bids, when and how received. 619 Tit.X. Ch. VII. CONVEYANCES OF PKOPERTY OF DECEDENT. §S 5518-5522 Ninety per cent of appraised value must be offered. Purchase money on sale or credit, how secured. Hearing and setting aside sale, and when re-sale may be ordered. 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 pub- lication of the notice, in which case the notice of sale and the sale may be made to correspond with such order. Sec. 5518. No sale of real estate at private sale shall be confirmed by the court unless the sum offered 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 case of an original appraisement of an estate. This may be done at any time before the sale or the confirmation thereof. Sec 5519. The executor or administrator must, when the sale is made upon a credit, take the notes of the pur- chaser for the purchase money, with a mortgage on the property to secure their payment. Sec 5520. The executor or administrator, after making any sale of real estate, must make a return of his proceed- ings to the court, which must be filed in the office of the Clerk at any time subsequent to the sale. A hearing upon the return of the proceedings may be asked for in the return or by petition subsequently, and thereupon the court or Judge must fix the day for the hearing, of which notice of at least ten days must be given by the Clerk by notices post- ed in three public places in the county, or by publication in a newspaper, or both, as the court or Judge shall direct, 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 disproportionate 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 conducted as if no previous sale had taken place : if an offer of ten per cent more in amount than that named in the re- turn be made to the court in writing by a responsible per- son 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. Sec 5521. When return of the sale is made and filed, any person interested in the estate may file written objec- tions 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. Sec 5522. If it appears to the court that the sale was legally made and fairly conducted, and thai 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 bid before mentioned be made and ac- cepted by the court, the court must make an order confirm- ing the sale, and directing conveyances to be executed. The sale, from that time, is confirmed and valid, and a cer- 620 May file objections, when and who. When order of confirmation is to be made, and when not. §§5523-5528 CONVEYANCES OF PROPERTY OF DECEDENT. Tit.X. Ch. VII tified copy of the order confirming it and directing convey- ances to be executed must be recorded in the office of the Recorder of the County within which the land sold is sit- uated. 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 previous sale, such purchaser is liable for the deficiency to the estate. Sec. 5523. Conveyances must thereupon be executed to the purchaser by the executor or administrator, and they must refer to the orders of the Probate Court authorizing and confirming the sale of the property of the estate, and directing conveyances thereof to be executed, and to the re- cord of the order of confirmation in the office of the County Recorder, either by the date of such recording, or by the date, volume, and page of the record, and such reference shall have the same effect as if the orders were, at large, in- serted in the conveyance. Conveyances so made convey all the right, title, interest, and estate of the decedent, in the premises, at the time of his death; if, prior to the sale, by operation of law or otherwise, the estate has acquired any right, title, or interest in the premises, other than, or in ad- dition to, that of the decedent at the time of his death, such right, title, or interest also passes by such conveyances. Sec 5524. Before any order is entered confirming the sale, it must be proved to the satisfaction of the court that notice was given of the sale as prescribed, and the order of confirmation must show that such proof was made. Sec. 5525. If at the time appointed for the sale, the executor or administrator deems it for the interest of all persons concerned therein that the same be postponed, he may postpone it from time to time, not exceeding in all three months. Sec. 5526. 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 post- ing 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. Sec. 5527. If the testator makes provisions by his will, or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or family ex- penses, they must be paid according to such provision or designation, out of the estate thus appropriated, so far as the same is sufficient. Sec. 5528. 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 order of the 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 casrs; and if directions are given in the will as to the mode of selling, or the particular property to be sold, such directions must be observed. In either case, no title passes unless the ale be confirmed by the court. 621 Conveyances Order of confirmation, what to state. Sale may be postponed. Notice of postponement. Payment of debts, etc., provided for by will. Sale3 without order, amended. Tlt.X. Ch. VII. CONVEYANCES OF PROPERTY OF DECEDENT. §§5529-5536 When provision by will insufficient. Estate subject to debts, etc. Contribution among legatees. Contract for purchase of lands may be sold, how. Conditions of sale. Purchaser to give bond. Executor to assign contract. Sales by executors or administrators of lands under mortgage lien. Sec. 5529. If the provision made by the will, or the es- tate appropriated therefor, is insufficient to pay the debts, expenses of administration, and family expenses, that por- tion of the estate not devised or disposed of by the will, if any, must be appropriated and disposed of for that purpose, according to the provisions of this chapter. Sec. 5530. 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 value or amount of the several devises or legacies, but spe- cific devises or legacies are exempt from such liability if it appears to the court necessary to carry into effect the in- tention of the testator, and there is other sufficient estate. Sec 5531. When an estate given by will has been sold for the payment of debts or expenses, all the devisees and legatees must contribute according to their respective inter- ests to the devisee or legatee whose devise or legacy has been taken therefor, and the Probate Court, when distribu- tion 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 purpose of paying such contribution. Sec. 5532. If a decedent, at the time of his death, was possessed of a contract for the purchase of lands, his inter- est in such land and under such contracts may be sold on the application of his executor or administrator in the same manner as if he 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. Sec. 5533. The sale must be made subject to all pay- ments that may thereafter become due on such contracts, and if there are any such, the sale must not be confirmed by the Probate Judge until the purchasers execute a bond to the executor or administrator, for the benefit and indem- nity 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 ap- prove. Sec. 5534. The bond must be conditioned that the pur- chaser will make all payments for such land that shall be- come due after the date of the sale, and will fully indemni- fy the executor or administrator, and the persons so entitled against all demands, costs, charges and expenses, by rea- son of any covenant or agreement contained in such con- tract. Sec. 5535. Upon the confirmation of the sale, the exec- utor or administrator must execute to the purchaser an as- signment of the contract which vests in the purchaser, his heirs and assigns, all the right, title and interest of the es- tate, 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 vender of such land as the decedent would have had if he were living. Sec. 5536. When any sale is made by an executor or administrator, pursuant to the provisions of this chapter, of 622 5§ 5537-5541 CONVEYANCES OF PKOPERTY OF DECEDENT. Tit. X. Ch. VII. Holder of mortgage lien may purchase lands, etc. lands subject to any mortgage or other lien, which is a valid claim against the estate of the decedent, and has been pre- sented 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 administration. The appli- cation of the purchase money to the satisfaction of the mortgage or lien must be made without delay; and the land is subject to such mortgage or lien until the purchase mon- ey has been actually so applied. No claim against any es- tate which has been presented 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 suf- ficient to pay such mortgage or lien, with interest, and any lawful costs and charges thereon, may be paid into the Pro- bate Court to be received by the Clerk thereof, whereupon the mortgage or lien upon the land must cease, and the pur- chase money must be paid over by the Clerk of the Court without delay, in payment of the expenses of the sale, and in satisfaction of the debt, to secure which the mortgage or other lien was taken, and the surplus, if any, at once re- turned to the executor or administrator unless for good cause shown, after notice to the executor or administrator, the court otherwise directs. Sec. 5537. At any sale under order of the Probate Court of lands upon which there is a mortgage or lien, the holder thereof may become the purchaser, and his receipt for the amount due him from the proceeds of the sale is a payment protanta. If the amount for which he purchased the property is insufficient to defray the expenses and dis- charge his mortgage or lien, he must pay to the court or the Clerk thereof, an amount sufficient to pay such ex- penses. Sec. 5538. If there is any neglect or misconduct in the proceedings of the executor in relation to any sale, by which any person interested in the estate suffers damage, the par- ty aggrieved may recover the same in an action upon the bond of the executor or administrator, or otherwise. Sec. 5539. Any executor or administrator who fraudu- lently sells any real estate of a decedent contrary to or oth- erwise 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 inheritance therein. Sec. 5540. 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 claiming under the decedent, unless it be commenced with- in three years next after the sale. An action to set aside the sale may be instituted and maintained at any time with- in three years from the discovery of the fraud, or other grounds upon which the action is based. Sec. 5541. The preceding section shall not apply to minors or others under any legal disability, to sue at the time when right of action first accrues; but all such persons may commence an action at any time within three years after the removal of the disability. 623 * Administrator and executor liable for misconduct in sale Fraudulent sales. Limitation for actions for vacating sale, etc. To what case 8 preceding section not to apply. Tit. X. Ch. VIII. POWERS AND DUTIES OF EXECUTORS. |§ 5542-5554 Account of sale to be returned. Executors, ^tc . , not to be purchasers. Sec. 5542. When a sale has been made by an executor or administrator of any property of the estate, real or per- sonal, he must return to the Probate Court, at its next term thereafter, an account of sales, verified by his affidavit. If he neglects to make such return, he may be punished by at- tachment, 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. Sec. 5543. No executor or administrator must, directly or indirectly, purchase any property of the estate he repre- sents, nor must he be interested in any sale. Executor to take possession of the entire estate. Executors may sue and be sued. May maintain actions for waste, etc. Executor and administrator may be sued for waste, etc. Surviving partner to settle business CHAPTER VIII. Of the Powers and Duties of Executors and Adminis- trators, and of the Management of Estates. Section 5550. Executors to take possession of the entire estate. 5551. Executors may sue and be sued for recovery of property. 5552. May maintain actions for waste, conversion and trespass. 5553. Executor and administrator may be sued for waste or trespass of de- cedent. 5554. Surviving partner to settle up busi- ness. Interest therein to be ap- praised. Account to be rendered. Section 5555. Actions on bond of executor or ad- ministrator may be brought by another administrator . 5556. What executors are not parties to action. 5557. May compound. 5558. Recovery of property fraudulently disposed of by tostato \ 5559. When executor to sue. as provided in preceding section. 5560. Disposition of estate recovered . Section 5550. The executor or administrator must take into possession all the estate of the decedent, real and person- al, and collect all debts due to the decedent or to the estate. For the purpose of bringing suits to quiet title, or for parti- tion of such estate, the possession of the executors or ad- ministrators 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 pur- poses of administration as provided in this Title. Sec. 5551. Actions for the recovery of any property, real or personal, or for the possession thereof, and all ac- tions founded upon contracts, may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by or against their respective testators or intestates. Sec. 5552. Executors and administrators may main- tain actions against any person who has wasted, destroyed, 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. Sec. 5553. Any person or his personal representatives may maintain an action against the executor or adminis- trator 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 person. Sec. 5554. When a partnership exists between the de- cedent, at the time of his death, and any other person, the surviving partner has the right to continue in possession of the partnership, and to settle its business, but the interest of the decedent in the partnership must be included in the in- 624 SS 5555-5560 POWERS AND DUTIES OF EXECUTORS. Tit.X. Ch. VIII. Interest to be appraised. Account to be rendered. Actions on bond of execu- tor, etc. What executors are not parties to actions. May compound, ventory , and be appraised as other property. The surviving partner must settle the affairs of the partnership without de- lay, 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 Probate Judge may, whenever it appears necessary, order the surviving partner to render an account, 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. Sec. 555b. 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. Sec. 5556. In actions by or against executors, it is not necessary to join those as parties to whom letters were is- sued, but who have not qualified. Sec. 5557. Whenever a debtor of a decedent is unable to pay all his debts, the executor or administrator, with the approbation of the Probate Court or 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 the best interest of the estate. Sec. 5558. When there is a deficiency of assets in the hands of an executor or administrator, and when the dece- dent, in his lifetime, has conveyed any real estate, or any rights or interests therein, with intent to defraud his credi- tors, or to avoid any right, debt, or duty of any person, or so conveyed such estate that by law the deeds or convey- ances are void as against creditors, the executor or adminis- trator must commence and prosecute to final judgment any proper action for the recovery of the same; and may re- cover 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 cred- its which have been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyance. Sec. 5559. No executor or administrator is bound to sue for such estate as mentioned in the preceding section, for the benefit of the creditors, unless on application of cred- itors, who must pay such part of the costs and expenses of the suit or give such security to the executor or administra- tor therefor, as the Probate Judge shall direct. Sec. 5560. 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, chat- tels, rights, and credits so recovered must be appropriated in payment of the debts of the decedent in the same man- ner as other property in the hands of the executor or admin- istrator. .Recovery of property fraudulently disposed of by testator. When executor to sue. Disposition of estate recovered. 40 625 Tit.X. Ch.IX. CONVEYANCE OF REAL ESTATE BY EXECUTORS. §§5565-5570- CHAPTER IX. Executor to complete contracts for sale of real estate. Petition for executor to make conveyance. Interested parties, may contest. Conveyances, when ordered to be made. Execution of conveyance, etc. , how enforced. Rights of petitioner to enforce contract, Of the Conveyance of Real Estate by Executors and Administrators in Certain Cases. Section 5565. Executor to complete contracts for sale of real estate. 5566. Petition for executor to make con- veyance and notice of hearing. 5567. Interested parties may contest. 5568. Conveyances, when ordered to be made. 5569. Execution of conveyance and record thereof, how enforced . 5570. Rights of petitioner to enforce con- tract . Section 5571. Effect of conveyance. 5572. Effect of recording a copy of the de- cree. 5573. Recording decree does not supercede power of court to enforce it. 5574. When party to whom conveyance to be made is dead . 5575. Decree may direct possession to be surrendered. Section 5565. When a person who is bound by con- tract in writing to convey any real estate, dies before mak- ing the conveyance, where such decedent, if living, might be compelled to make such conveyance, the Probate Court may make a decree authorizing and directing his executor or ad- ministrator to convey such real estate to the person entitled thereto. Sec. 5566. 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 predicated, the Probate Court must ap- point a time and place for hearing the petition, at a regular term of the court,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. Sec. 5567. At the time and place appointed for the hearing, or at such other time to which the same may be postponed upon satisfactory proof, by affidavit or otherwise, of the due publication of the notice, the court must proceed to a hearing, and all persons interested in the estate may ap- pear and contest such petition, by filing their objections in writing, and the court may examine on oath, the petitioner and all who may be produced before him for that purpose. Sec. 5568. If, after a full hearing upon the petition and objections, and examination of the facts and circum- stances of the claim, the court is satisfied that the petitioner is entitled to a conveyance of the real estate described in the petition, a decree authorizing and directing the executor or administrator to execute a conveyance thereof to the peti- tioner must be made, entered on the minutes of the court, and recorded. Sec. 5569. 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 Recorder of the county where the land lies, and is prima facie evidence of the correctness of the pro- ceedings, and of the authority of the executor or adminis- trator to make the conveyance. Sec. 5570. 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 doubt- ful, the court must dismiss the petition without prejudice to 626 Effect of conveyance. Effect of recording a copy of the decree. 5571-5575 CONVEYANCE OF EEAL ESTATE BY EXECUTOKS. Tit.X. Ch.IX. the rights of the petitioner, who may, at any time within six months thereafter, proceed, in the District Court, to en- force a specific performance thereof. Sec. 5571. Every conveyance made in pursuance 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. Sec 5572. A copy of the decree for a convey ance made by the Probate Court, and duly certified and recorded in the office of the Recorder of the county where the lands lie, gives the 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 intended conveyance, in like manner as if they had been conveyed in pursuance of the decree. Sec. 5573. The recording of any decree, as provided in the preceding section, shall not prevent the court making the decree from enforcing the same by other process. Sec 5574. If the person entitled to the conveyance dies before the commencement of the proceedings therefor under this chapter, or before the completion of the convey- ance, any person entitled to succeed to his rights in the con- tract, or the executor or administrator of such decedent may for the benefit of the person so entitled, commence such pro- ceedings, or prosecute any already commenced, 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. Sec 5575. 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 produc- ing the deed and a certified copy of the decree, when by the terms of the contract, possession is to be surrendered. Recording decree, etc. Where party to whom convey- ance to be made is dead. Decree may direct possesion to be surrendered. 627 ) Tit.X. Ch. X. OF ACCOUNTS RENDERED BY EXECUTORS. §§5580-5584 When executor or administrator personally liable. Executor to be charged with all estate. Not to profit or lose by estate. Uncollected debts without fault. Compensation of executor, etc. CHAPTER X. Of Accounts Rendered by Executors and Administra- tors, AND OF THE PAYMENT OF DEBTS. Section 5580. When 5581. 5582. 5583. 5584. 5585. 5586. 5587. 5588. 5589. 5590. 5591. 5592. 5593. 5594. 5595. 5596. 5597. 5598. 5599. executor or administrator personally liable. Executor to be charged with all es- tate, etc. Not to profit or lose by estate. Uncollected debts without fault. Compensation of the executor and administrator. Not to purchase claims against the estate. Executors' and administrators' com- missions. To render an exhibit of receipts and disbursements, and claims al- lowed. Citation to account at third term . Petition for citation to render final or other account. Citation to account on application. Objections to account, who may file. Attachments for not obeying cita- tion. To render accounts at expiration of term. Executor to account after his au- thority revoked . Revoking authority of executor, when. To produce and file vouchers which remain in court. Vouchers for items less than twenty dollars, when accepted. Day of settlement to be appointed, and must give notice thereof. Final settlement, partition and dis- tribution may be made at same time. Postponing order is notice. Section 5600. Interested party may file exception to account. All matters may be contested by the heirs. Hearing may be postponed. Settlement of accounts to be conclu- sive, when and when not. Proof of notice of settlement of ac- counts . Sale of personal in lieu of real prop- erty. Funds pending settlement. Order in which debts to be paid . Where property insufficient to pay mortgage. Estate insufficient, a dividend to be paid. Funeral expenses, and expenses of last sickness. Order for payment of debts and dis- charge of the executor oradminis- tor. Provision for disputed and contin- gent clains . After decree for payment of debts, executor personally liable to cred- itors . Claims not included in order for payment of debts, how disposed of. Order for payment of legacies and extension of time. Final account, when to be made. Neglect to render final account, how treated. 5601. 5602. 5603. 5604. 5605. 5606. 5607. 5608. 5609. 5610. 5611. 5612. 5613. 5614. 5615. 5616. Section 5580. 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, un- less the agreement for that purpose, or some memorandum or note thereof, is in writing and signed by such executor or administrator, or by some other person by him thereunto specially authorized. Sec. 558 1 . Every executor and administrator is charge- able in his account with the whole of the estate of the dece- dent 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 the estate. Sec. 5582. 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 any is sold for less than the ap- praisement, he is not responsible for the loss, if the sale has been justly made. Sec. 5583. No executor or administrator is accountable for any debts due to the decedent, if it appears that they re- main uncollected without his fault. Sec. 5584. He shall be allowed all necessary expenses in the care, management, and settlement of the estate, and for his services such fees as provided in this chapter; but when the decedent, by his will, makes some other provision 628 §§ 5585-5591 OF ACCOUNTS RENDEKED BY EXECUTORS. Tit. X. Ch. X. Not to purchase claims against the estate. Executor's and administrator's commissions. To render an exhibit of receipts, etc. for the compensation of his executor, that shall be a full compensation for his services, unless, by a written instru- ment, filed in the Probate Court, he renounce all claim for compensation provided by the will. Sec. 5585. No administrator or executor shall purchase any claim 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. Sec. 5586. 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 estate ac- counted for by him, as follows: For the first thousand dol- lars, at the rate of seven per cent; for all above that sum and not exceeding ten thousand dollars, at the rate of five per cent; for all above that sum, at the rate of four per cent; and the same commission must be allowed administrators. In all cases, such further allowance may be made as the Probate Judge may deem just and reasonable, for any ex- traordinary service. The total amount of such allowance must not exceed the amount of commissions allowed by this section. Sec. 5587. At the third term of the court after his ap- pointment, and thereafter at any time when required by the court, either upon its own motion or upon the applica- tion of any person interested in the estate, the executor or administrator must render, 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 con- dition of its affairs. Sec. 5588. If the executor or administrator fails to render an exhibit at the third term of the court, the Judge of the Probate Court must cause a citation to be issued re- quiring him to appear and render it. Sec. 5589. Any person interested in the estate may, at any time before the final settlement of accounts, present his petition to the Probate Judge, praying that the executor or administrator be required to appear and render such exhi- bit, setting forth the facts showing that it is necessary and proper that such an exhibit should be made. Sec. 5590. If the Judge is satisfied, either from the oath of the applicant or from any other testimony offered, that the facts alleged are true, and considers the showing of the applicant sufficient, he must direct a citation to be is- sued to the executor or administrator, requiring him to ap- pear at some day to be named in the citation, which must be during a term of the court, and render an exhibit as prayed for. Sec. 5591. When an exhibit is rendered by ah execu- tor or administrator, any person interested may appear and, by objections in writing, contest any account or statement therein contained. The court may examine the executor or administrator, and if he has been guilty of neglect, or has wasted, embezzled, or mismanaged the estate, his let- ters must be revoked. Citation to account at third' term. Petition for citation. Citation to account on application. Objections to account, who urn y (tye. 629 Tit. X. Ch.X. OF ACCOUNTS RENDERED BY EXECUTORS. & 5592-5598 Attachment for not obeying citation. Amended to render accounts at expiration of term. Executor to account after his authority revoked. When revoking •authority of executor. To produce and file vouchers, which remain dn court. Vouchers for items, etc., less than twenty dollars. Day of settlements. Notice. Sec. 5592. If any executor or administrator 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. Sec. 5593. Within thirty days after the expiration of the time mentioned in the notice to creditors within which claims must be exhibited, every executor or administrator must render a full account and report of his administration. If he fails to present his account, the court or Judge 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, re- quiring the executor or administrator to appear and show cause why an attachment should not issue. Every account must exhibit all debts which have been presented and al- lowed during the period embraced in the account. Sec 5594. When the authority of an executor or ad- ministrator 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 es- tate, in like manner as he might have been cited by any person interested in the estate during the time he was ex- ecutor or administrator. Sec 5595. 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 ren- der an account within thirty days after the time above pre- scribed, 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. Sec 5596. 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 of any competent witness. Sec. 5597. On the settlement of his account he may .be allowed any item of expenditure, not exceeding twenty dol- lars, for which no voucher is produced, if such item be sup- ported by his own uncontradicted oath positive to the fact of payment, specifying when, where, and to whom it was made; but such allowances in the whole must not exceed five hundred dollars against any one estate. Sec 5598. When any account is rendered for settle- ment, the court or Judge must appoint a day for the settle- ment thereof; the Clerk must thereupon give notice thereof , by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of the account, which must be on some day 630 |§ 5599-5605 OF ACCOUNTS RENDERED BY EXECUTORS. Tit. X. Ch. X. Final settlement and distribution, amended. Interested party may file exceptions. Heirs may contest all matters. Hearing. Settlement of accounts to be conclusive. of a term of the court. The court or Probate Judge may order such further notice to be given as may be proper. Sec. 5599. If the account mentioned in the preceding section be for a final settlement, and a petition for the final distribution of the estate be filed with said account, the no- tice of the settlement must state those facts, which notice must be given by posting a publication, as the court may direct, and for such time as may be ordered. On the settle- ment of said account, distribution and partition of the es- tate to all entitled thereto may be immediately had without further notice or proceedings. Sec. 5600. On the day appointed, or any subsequent day to which the hearing may be postponed by the court, any person interested in the estate may appear and file his exceptions in writing to the account and contest the same. Sec. 5601. All matters including allowed claims not passed upon on the settlement of any former account, or on rendering an exhibit, 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 the court may appoint one or more referees to examine the accounts and make re- port thereon, subject to confirmation; and may allow a rea- sonable compensation to the referees, to be paid out of the estate of the decedent. Sec. 5602. The settlement of the account and the al- lowance thereof by the court, or upon appeal, is conclusive against all persons in any way interested in the estate, sav- ing, however, to all persons laboring under any legal disa- bility, their rights to proceed against the executor or ad- ministrator, either individually or upon his bond, within two years after their respective disabilities cease; and in any action brought by any such person, the allowance and settlement of the account is prima facie evidence of its correctness. Sec. 5603. 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 con- clusive evidence of the fact. Sec. 5604. 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 prop- erty 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 first instance. Sec. 5605. Pending the settlement of any estate, on the petition of any party interested therein, and upon good cause shown therefor, the court may order any moneys in the hands of the executors or administrators to be invested for the benefit of the estate in securities of the United States or of this Territory. Such order can only be made after publication of notice of the petition in some newspaper to be designated by the court or Judge thereof. Proof of notice of settlement of accounts. Sale of personal in lieu of real property, amendment. Funds pending settlement, amendment. 631 Tit. X. Ch. X. OF ACCOUNTS RENDERED BY EXECUTORS. §§5606-5612 Order in which debts to be paid. When property insufficient to pay mortgage. Estate insuffi- cient, a dividend to be paid. Funeral expenses, etc. last sickness, family allowance. Order for payment of debts and discharge of executor. Provision for dieputed and contingent claims. After decree for payment of debts, executor personally liable to creditors. Sec. 5606. 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 life- time, and mortgages in the order of their date; 5. All other demands against the estate. Sec. 5607. The preference given in the preceding sec- tion to a mortgage only extends to the proceeds of the property mortgaged. If the proceeds of such property is insufficient to pay the mortgage, the part remaining unsat- isfied must be classed with the other demands against the estate. Sec. 5608. If the estate is insufficient to pay all the debts of any one class, each creditor must be paid a dividend in proportion to his claim; and no creditor of any one class shall receive any payment until all those of the preceding class are fully paid. Sec. 5609. The executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses and the expenses of the last sickness, and the al- lowance made to the family of the decedent. He may re- tain in his hands the necessary expenses of the administra- tion, but he is not obliged to pay any other debt or any lega- cy until, as prescribed in this chapter, the payment has been ordered by the court. Sec. 5610. Upon the settlement of the accounts of the executor or administrator, as required in this chapter, the court must make an order for the payment of the debts, as the circumstances of the estate require. If there is not suf- ficent 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 whole property or the estate be ex- hausted by such payment or distribution, such account must be considered as a final account, and the executor or administrator is entitled to his discharge, on producing and filing the necessary vouchers and proofs showing that such payments have been made, and that he has fully complied with the decree of the court. Sec. 5611. If there is any claim not due, or any con- tingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be en- titled 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 legal 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. Sec. 5612. When a decree is made by the Probate Court for the payment of creditors, the executor or ad- ministrator is personally liable to each creditor for his al- 632 §§ 5613-5616 OF ACCOUNTS RENDERED BY EXECUTORS. Tit. X. Ch. X. Claims not included in order for payment of debts. lowed claim, or the dividend thereon, and execution may be issued on such decree, as upon a judgment in the District Court, in favor of each creditor, and the same proceeding may be had under such execution as if it had been issued from the District Court. The executor or administrator is liable therefor, on his bond, to each creditor. Sec. 5613. When the accounts of the administrator or executor have been settled, and an order made for the pay- ment 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 pay- ment of his claim; but if the executor or administrator has failed to give the notice to the creditors, as prescribed by this Title, 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. Sec 5614. 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. Sec. 5615. 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 the 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 set- tlement of his administration. Sec 5616. If he neglects 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 provisions of this chapter relative to the last men- tioned account, and the notice and settlement thereof, apply to his account presented for final settlement. Order for payment of legacies, etc. Final account, wben to be made. Neglect to render final account. 633 Tit. X. Ch. XL OF THE DISTRIBUTION OF ESTATES. §3 5621-5624 Payment of legacies upon giving bonds. Notice of application for legacies. Executor, etc., may resist application. Decree to require bond, wbich must be given. CHAPTER XL Of the Partition, Distribution, and Final Settlement of Estates. , legacies upon giving Section 5621. Payment of bonds. Notice of application for legacies . Executor or other person may re- sist application . Decree for to require bond, which must be given. May order whole or part of share to be delivered. Where partition necessary, how made. Costs. Order for payment of bond, and suit thereon . Distribution of estate, how made and to whom. What the decree must contain, and is final. Distribution when decedent was not a resident of this Territory. Decree to be made only after notice. No distribution to be ordered until all taxes on personal property are paid. Estate in common. Commissioners. Partition and notice thereof, and the time of filing petition. Estate in different counties, how divided. Partition may be made, although some of the heirs, etc., have parted with their interest. 5622. 5623. 5624. 5625. 5626. 5627. 5628. 5629. 5630. 5631. 5632. 5633. 5634. set out by metes and Section 5635. Shares to be bounds. Whole estate may be assigned to one in certain cases . Payments for equality of partition, by whom and how. Estate may be sold. To give notice to all persons and guardians before partition. Duties of Commissioners. To make report, and partition to be recorded. When Commissioners to make par- tition are not necessary. Advancement made to heirs. Court may appoint agent to take possession for absentees. Agent to give bond; and his compen- sation. Unclaimed estate, how disposed of. When real and personal property of absentee to be sold. Liability of agent on his bond. Certificates to claimant. Final settlement, decree, and dis- charge . Discovery of property. 5636. 5637. 5638. 5639. 5640. 5641. 5642. 5643. 5644. 5645. 5646. 5647. 5648. 5649. 5650. Section 562 1 . At any time after the lapse of four months from the issuing of letters testamentary or of administra- tion, any heir, devisee, or legatee may present his petition to the court for the legacy or share of the estate to which he is entitled, to be given to him upon his giving bonds, with security, for the payment of his proportion of the debts of the estate. Sec. 5622. Notice of the application must be given to the executor or administrator personally, and to all persons 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. Sec. 5623. 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. Sec. 5624. If at the hearing it appears that the estate is but little indebted and that the share of the party apply- ing 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 be- fore receiving 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 sure- ties 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 propor- tion 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 634 '§§ 5625-5628 OF THE DISTRIBUTION OF ESTATES. Tit X. Ch. XL he may be entitled, or only apart thereof, designating it. If in the execution of the order, 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 shall be paid by the applicant, or if there be more than one, to be apportioned equally amongst them. Sec. 5625. When any bond has been executed and de- livered 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 ex- ecutor or administrator must petition the court for an order requiring the 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 necessity of such payment, must make an order accordingly, designating the amount and giving a time within which it must be paid. If the money is not paid within the time allowed, an action may be main- tained by the executor or administrator on the bond. Sec. 5626. Upon the final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee or devisee, the court must proceed to dis- tribute the residue of the estate in the hands of the executor or administrator, if any, among 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, be- fore the close of administration, have died while under age and not having been married, no administration on such deceased child's estate is necessary, but all the estate which such deceased child was entitled to by inheritance, must, without administration, be distributed to the other heirs at law. A statement of any receipts and disbursements of the executor or administrator, 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 made 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 oth- er cases of the settlement of accounts. Sec. 5627. In the order or decree the court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand and sue for, and recover their respective shares from the executor or admin- istrator, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, lega- tees or devisees, subject only to be reversed, set aside, or modified on appeal. Sec. 5628. Upon application for distribution, after final settlement of the accounts of administration, if the dece- dent was a non-resident of this Territory, leaving a will which has been duly proved or allowed in the state of his residence, and an authenticated copy thereof has been ad- mitted to probate in this Territory, and it is necessary, in order that the estate or any part thereof may be distributed according to the will, that the estate in this Territory should be delivered to the executor or administrator in the state or 635 When partition neces9ary, how made. Coats. Order for payment of bond. Distribution of estate, how made and to whom. What the decree m,ust contain. Distribution when decedent was not resident of this Territory TitX. Ch.XI. OF THE DISTRIBUTION OF ESTATES. §§ 5629-5633' Decree to be made after notice. Amended. place of his residence, the court may 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 reewered on appeal, binds and concludes all parties in interest. Sales of real estate ordered by virtue of this section, must be made in the same manner as other sales of real estate of decedents by order of the Probate Court. Sec. 5629. The order or decree may be made on the pe- tition of the executor or administrator, or of any person in- terested in the estate. Notice of the application must be given by posting or publication, as the court may direct, and for such time 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. Sec. 5630. Before any decree of distribution of an es- tate is made, the Probate Court must be satisfied, by the oath of the executor or administrator, or otherwise, that all Territorial, county and municipal taxes, legally levied upon personal property of the estate, have been fully paid. Sec. 5631. 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 dis- tribution may be made by three disinterested persons, to be appointed commissioners for that purpose by the Probate Court or Judge, who must be duly sworn to the faithful dis- charge of their duties. A certified copy of the order of their appointment, and of the order or decree assigning and dis- tributing the estate, must be issued to them as their war- rant, and their oath must be indorsed thereon. Upon con- sent 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. Sec. 5632. 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 or- dered by the Probate Court, as directed in this chapter, no- tice thereof must be given to all persons interested, who re- side in this Territory, or to their guardians, and to the agents, attorneys, or guardians, if any in this Territory, of such as reside out of the Territory, either personally or by public notice, as the Probate Court may direct. The peti- tion may be filed, attorneys, guardians, and agents ap- pointed, and notice given, at any time before the order or decree of distribution, but the Commissioners must not be appointed until the order or decree is made distributing the estate. Sec. 5633. If the real estate is in different counties, the Probate Court may, if deemed proper, appoint a Commis- sioner for all, or different Commissioners for each county. The estate in each county must be divided separately among the heirs, devisees, or legatees, as if there was no other es- 636 No distribution to be ordered till taxes are paid. Estate in common. Commissioners. Partition and ' notice, time of filirg petition. Estate in different counties, bow divided. S 5634-5638 OF THE DISTRIBUTION OF ESTATES. Tit.X. Ch.XL tate to be divided, but the Commissioner first appointed must, unless otherwise directed by the Probate Court, make division of such real estate, wherever situated within this Territory. Sec. 5634. 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 as- signed to the person holding the same, in the same manner as they otherwise would have been to such heirs, legatees, or devisees. Sec. 5635. 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 easily distinguished, unless two or more of the parties inter- ested consent to have their shares set out so as to be held by them in common and undivided. Sec. 5636. When the real estate cannot be divided without prejudice or inconvenience to the owners, the Pro- bate Court may assign the whole to one or more of the par- ties entitled to share therein who will accept it, always pre- ferring the males to the females, and among children pre- ferring the elder to the younger. The parties accepting the whole must pay to the other parties interested, their just 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 Com- missioners. 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 the court, and recommend that the whole be assigned as herein provided, and must find and re- port the true value of such real estate. On filing the report of the Commissioners, and on making or securing the pay- ment as before provided, the court, if it appears just and proper, must confirm the report, and thereupon the assign- ment is complete and the title to the whole of such real es- tate vests in the person to whom the same is so assigned. Sec. 5637. 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 preceding section. The party accept- ing must pay or secure to the others such sums as the com- missioners shall award to make the partition equal, and the commissioners must make their award accordingly; but 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. Sec. 5638. When it appears to the court, from the com- missioners' report, that it cannot otherwise be 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 ex- ecutor or administrator, or by a commissioner appointed for that purpose, and the proceeds distributed. The sale 637 Petition may be made, etc. Shares to be set out by metes and bonds. Whole estate may be assigned to one, in certain cases. Payments for equality of partition, by whom and how. Estate mav be sold. Tit. X. Ch. XI. OF THE DISTRIBUTION OF ESTATES. §§ 5639-5646 To gi^e notice to all persons, etc. Duties of commissioners. To make report, and record partitions. When commissioners to make partition not necessary. Advancement made to heirs must be conducted, reported, and confirmed in the same manner and under the same requirements provided in Chapter VII of this Title. Sec. 5639. 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, agents, or attorneys, by the commissioners, of the time and place, when and where they shall proceed to make parti- tion. The commissioners may take testimony, order sur- veys, and take such other steps as may be necessary to en- able them to form a judgment upon the matters before them. , Sec. 5640. The commissioners must report their pro- ceedings, and 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 re- port is finally confirmed, a certified copy of the judgment or decree of partition made thereon, attested by the clerk, under the seal of the court, must be recorded in the office of the recorder of the county where the lands lie. Sec. 5641. When the Probate Court makes a judgment or decree assigning the residue of any estate to one or more persons entitled to the same, it is not necessary to appoint Commissioners to make partition or distribution thereof, un- less the parties to whom the assignment is decreed, or some of them, request that such partition be made. Sec. 5642. All questions as to advancements made, or alleged to have been made, by the decedent, to his heirsr may be heard and determined by the Probate Court, and must be specified in the decree assigning and distributing the estate; and the final judgment, or decree of the Probate Court, or, in case of appeal, of the District or Supreme Court, is binding on all parties interested in the estate. Sec. 5643. When any estate is assigned or distributed by a judgment or decree of the court, as provided in this chapter, to any person residing out of and having an agent in this Territory, and it is necessary that some person should be authorized to take possession and charge of the same for the benefit of such absent person, 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. Sec. 5644. The agent must first give a bond to the Pro- bate Judge, to be approved by him, conditioned that he shall faithfully manage and account for the estate. The court approving such agent may allow a reasonable sum out of the profits of the estate for his services and expenses. Sec. 5645. 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 shall 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 Territorial Treasury. When the payment is made the agent must take from the Treasury duplicate re- ceipts, one of which he must file in the office of the Territo- rial Controller, and the other in the Probate Court. Sec. 5646. The agent must render to the Probate Court appointing him, annually, an account, showing: 638 Court may appoint agent to take possession for absentees. Agent to give bond. Compensation. Unclaimed estate, how disposed of. Absentees, when real and person- al property of, to be sold. §§ 5647-5650 OF THE DISTRIBUTION OF ESTATES. Tit. X. Ch. XL 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 manage- ment thereof, and whether paid or unpaid. When filed, the Probate Court may examine witnesses and take proofs in re- gard to the account; and if satisfied from such accounts 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 per- sonal property as shall appear to be proper, and the pur- chase money to be deposited in the Territorial Treasury. Sec. 5647. 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 sections, and may be sued thereon by any person interested. Sec. 5648. When any 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 certifi- cate to that effect, under its seal; and upon the presentation of the certificate to him, the Controller must draw his war- rant on the treasurer for the amount. Sec. 5649. When the estate has been fully adminis- tered, and it is shown by the executor or administrator, 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 performed all the acts lawfully re- quired of him, the court must make a judgment or decree discharging him from all liability to be incurred thereafter. Sec. 5650. The final settlement of an estate does not prevent the subsequent issuance of letters testamentary, or of administration with the will annexed, whenever other property of the estate is discovered, or whenever it becomes necessary or proper, from any cause, that letters should be again issued. 639 Liability of agent. Certificate to claimant. Final settle- ment, decree, and discharge. Discovery of property. Tit.X. 'Ch.XII. OF ORDERS, DECREES, PROCESS, ETC. S§ 5655-5662 CHAPTER XII. Of Orders, Decrees, Process, Minutes, Trials, and Appeals. Orders and decrees to be entered. Publication to be made, bow often. Recorded decree or order, to impart notice Citation, bow directed, wbat to contain. Citation, bow issued. Citation, bow served. Personal notice given by citation. Wben citation to be served. Section 5655. Orders and decrees to be entered in minutes. How often publication to be made. Recorded decree or order to impart notice from day of filing. Citation, bow directed, and wbat to contain. Citation, bow issued. Citation, bow served. Personal notice given by citation. Citation to be served five days before return. One description of real estate sougbt to be sold being publisbed, is suffi- cient for all purposes. Rules of practice generally. New trials and appeals. Within wbat time appeal must be taken. 5656. 5657. 5658. 5659. 5660. 5661. 5662. 5663. 5664. 5665. 5666. Section 5667. Issues joined in Probate Court, bow tried and disposed of. Court to try case wben no jury is demanded. How and wbat issues to be tried. Court to appoint attorney for minor or absent heirs, devisees, legatees, or creditors. Where and what com- pensation he is to receive. Decree relative to homestead and effect thereof. Costs, by whom paid in certain cases. Executor, administrator, or guard- ian to be removed wben commit- ted for contempt, and another ap- pointed. Service of process on guardian. Disposition of life estate on owner's death. 5668. 5669. 5670. 5671. 5672. 5673. 5671. Section 5633. All orders and decrees made by the Probate Court during its terms, and all orders which the Probate Judge is specially authorized to make out of term time, or at chambers, must be entered at length in the minute book of the court. Upon the close of each term the Judge must sign the minutes. Sec. 3636. When any publication is ordered, such pub- lication must be made daily or otherwise, as often during the prescribed period as the paper is regularly issued, unless otherwise provided in this Title. The court or Judge may, however, order a less number of publications during the period. Sec. 5657. When it is provided in this Title that any order or decree of a Probate Court or Judge, or a copy there- of, must be recorded in the office of the County Recorder, from the time of filing the same for record, notice is impart- ed to all persons of the contents thereof. Sec. 5658. Citations must be directed to the person to be cited, signed by the clerk, and issued under the seal of the court, and must contain : 1. The title of the proceeding; 2. A brief statement of the nature of the proceeding; 3. A direction that the person cited appear at a time and place specified. Sec. 5659. The citation may be issued by the clerk upon the application of any party, without an order of the Judge, except in cases in which such order is by the provis- ions of this Title expressly required. Sec. 5660. The citation must be served in the same manner as a summons in a civil action. Sec. 5661. When personal notice is required, and no mode of giving it is prescribed in this Title, it must be given by citation. Sec. 5662. When no other time is specially prescribed in this Title, citations must be served at least five days before the return day thereof. 640 5663-5669 OF ORDERS, DECREES, PROCESS, ETC. Tit. X. Ch. XII. Sec. 5663. When a complete description of the real property of an estate sought to be sold has been given and 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 confirmation thereof. It is suf- ficient to refer to the description contained in the publica- tion of the first notice, as being proved and on file in the court. Sec. 5664. Except as otherwise provided in this Title, the provisions of Part II of this Code are applicable to and constitute the rules of practice in the proceedings mentioned in this Title. Sec. 56Q5. The provisions of Part II of this Code, rela- tive to new trials and appeals — except in so far as they are in- consistent with the provisions of this Title — apply to the proceedings mentioned in this Title. Sec. 5666. The appeal must be taken within sixty days after the order, decree, or judgment is entered. Sec. 5667. All issues of fact joined in the Probate Court must be tried in conformity with the requirements of Chapter II of this Title, in cases of contests of wills, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. Judgments therein on the issues joined, as well as for costs, may be entered and enforced by execution or otherwise, by the Probate Court, as in civil actions. Sec. 5668. If no jury is demanded, the court must try the issues joined. If, on written demand, a jury is called by either party, and 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 submit the same, together with the evidence of each party, to the jury, on which they must render a verdict. Either may move for a new trial upon the same grounds and errors, and in like manner, as provided in this Code for civil actions. Sec. 5669. At or before the hearing of petitions and contests for the probate of wills, for letters testamentary or of administration; for sales of real estate, and confirmations thereof; settlements, partition, and distribution of estates, setting apart homesteads, and all other proceedings where all the parties interested in the estate are required to be no- tified thereof, the court may, in its discretion, appoint some competent attorney at law to represent in all such proceed- ings, the devisees, legatees, heirs, or creditors of the dece- dent, who are minors and have no general guardian in the county, or who are non-residents of the Territory; and those interested who, though they are neither such minors or non- residents, are unrepresented. The order must specify the names of the parties, so far as known, for whom the attorney is appointed, who is thereby authorized to represent such parties in all such proceedings had subsequent to his ap- pointment. The attorney may receive a fee, to be fixed by the court, for his services, which must be paid out of the funds of the estate as necessary expenses of administration, and up- on distribution may be charged to the party represented by the attorney. If, for any cause, it becomes necessary, the 41 641 One description of real estate sought to be sold, publication of, etc. Rules of practice generally. New trials and appeals. Time of appeal to be taken. Issues joined in probate court, how tried, etc. Court to try- case when no jury is demanded. Issues. Amended. Attorney for minor or absent heirs, etc., compensation he is to receive. Tit. X. Ch. XII. OF ORDERS, DECREES, PROCESS, ETC. §§ 5670-5674 Decree relative to homestead, and effect thereof. Costs, by whom paid in certain cases. Executor, etc., to be removed when committee for contempt. court may substitute another attorney for the one first ap- pointed, in which case the fee must be proportionately di- vided. The non-appointment of an attorney will not affect the validity of any of the proceedings. Sec. 5670. When a judgment or decree is made, setting apart a homestead, confirming a sale, making distribution of real estate, or determining any other matter affecting the title to real estate, a certified copy of the same must be re- corded in the office of the Recorder of the county in which the land is situated. Sec. 5671. "When it is not otherwise prescribed in this Title, the Probate Court, or the District or Supreme Court, on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the es- tate, as justice may require. Execution for the costs may issue out of the Probate Court. Sec 5672. Whenever an executor, administrator, or guardian is committed for contempt, in disobeying any law- ful 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. Sec 5673. 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 court concerning the estate of a de- ceased person, in which the ward is. interested, is equiva- lent to the service upon the ward, and it is the duty of the guardian to attend to the interests of the ward in the mat- ter. 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. Sec 5674. If any person has died, or shall hereafter die, who at the time of his death was the owner of a life estate which terminates by reason of the death of such per- son, any person interested in the property, or in the title thereto, in which such life estate was held, may file in the Probate Court of the county in which the property is situ- ated his verified petition setting forth such facts, and there- upon, and after such notice, by publication or otherwise, as the court may order, the court shall hear such petition and the evidence offered in support thereof, and if, upon such hearing, it shall appear that such life estate of such de- ceased person absolutely terminated by reason of his death, the court shall make a decree to that effect, and thereupon a certified copy of such decree may be recorded in the office of the County Recorder, and thereafter shall have the same effect as a final decree of distribution so recorded. 642 Service of process on guardian. Amendment. Disposition of life estate on owner's death. Amendment. 5§ 5680-5683 OF PUBLIC ADMINISTRATOR. Tit. X. Ch. Xllh CHAPTER XIII. Of Public Administrator. . Section 5680. County Treasurers to be ex-officio Public Administrators. Bond. 5681. Wbat estates to be administered by Public Administrator. 5682. Public Administrator to obtain let- ters, when and how. His bond and oath. 5683. Duty of persons in whose house any stranger dies. 5684. Must return inventory and admin- ister estates according to this Title. 5685. When another person is appointed administrator or executor. Public Administrator to deliver up the es- tate. 5686. Civil officers to give notice of waste to Public Administrator. 5687. Suits for property of decedents. i Section 5688. Order to examine party charged with embezzling estate. Punishment for refusing to attend. Order on Public Administrator to ac- count. Every six months to make and pub- lish return of condition of estate. When there are no heirs or claim- ants, moneys and effects paid to County Treasurer, etc. Not to be interested in the payments for or on account of estates in his hands. 5694. Proceedings, how and by whom in- stituted against Public Adminis- trator failing to pay over money as ordered. Preceding chapters applicable to Public Administrator. 5689. 5690. 5691. 5692. 5693. 5695. Section 5680. The County Treasurers of the various counties of this Territory are hereby declared to be ex-officio public administrators in their respective counties. Each Public Administrator shall, before he enters upon the duties of his office, take and file his official oath and execute and file an official bond, conditioned as the bonds of other coun- ty officers are, with two good and sufficient sureties, in a sum not less than two thousand dollars ; Provided, That the Probate Court may, upon reasonable cause therefor shown, require at any time a new official bond, or an addi- tional bond, to be given upon ten days' notice in writing. Sec. 5681. Every Public Administrator duly qualified, must take charge of the estates of persons dying within his county, as follows: 1. Of the estates of decedents for which no administra- tors are appointed, and which, in consequence thereof, are being wasted, uncared for or lost; ' 2. Of the estates of decedents who have no known heirs; 3. Of estates ordered into his hands by the Probate Court; and, 4. Of estates upon which letters of administration have been issued to him by the Probate Court, as provided in Chapter III of this Title. Sec. 5682. Whenever a Public Administrator takes charge of an estate which he is entitled under the provis- ions of Chapter III, of this Title, to administer without let- ters of administration being issued, or under order of the court, he must, with all convenient dispatch, procure letters of administration thereon. No notice of application for let- ters by a Public Administrator is necessary, and his official bond and oath are in lieu of the administrator's bond and oath; but when real estate is ordered to be sold, another bond may be required by the court. Sec. 5683. Whenever a stranger or person without known heirs, dies intestate in the house or premises of an- other, the possessor of such premises, or any one knowing the facts, must give immediate notice thereof to the public administrator of the county; and in default of so doing, he is liable for any damage that may be sustained thereby, to 643 County treas- urers to be ex-officio public administrator s . Act of Feb. 9, 1881. Bond of administrator. New or addition- al bond. What estates to be administered by public administrators. Public administrator to obtain letters, when and how. Amended. Bond and oath. Duty of persons in whose house any stranger dies. Tit. X. Ch. XIII. OF PUBLIC ADMINISTRATOR. 5684-5691 Must return inventor}', etc. Amended. be recovered by the Public Administrator, or any party in- terested. Sec. 5684. The Public Administrator must make and return a perfect inventory of all estates taken into his pos- session, administer and account for the same, according to the provisions pf this Title, subject to the control and direc- tion of the Probate Court. When, as shown by the in- ventory, the estate amounts to less than two hundred and fifty dollars, no notice to creditors or other formal proceed- ings by the Public Administrator are required, but after the payment of the funeral expenses, the expenses of the last sickness and of administration, the Probate Court must order the residue, if any, converted into money and paid as may be just to such creditors or heirs as may appear, or into the Territorial Treasury as provided in this chapter. Sec. 5685. If, at any time, letters testamentary or of administration are regularly granted to any other person on an estate of which the Public Administrator has charge, he must, under the order of the Probate Court, account for, pay, and deliver to the executor or administrator thus appointed, all the money, property, papers, and estate of every kind in his possession or under his control. Sec. 5686. All civil officers must inform the Public Ad- ministrator of all property known to them, belonging to a decedent, which is liable to loss, injury, or waste, and which, by reason thereof, ought to be in the possession of the Public Administrator. Sec. 5687. The Public Administrator must institute all suits and prosecutions necessary to recover the property, debts, papers, or other estate of the decedent. Sec. 5688. When the Public Administrator complains to the Probate Judge, on oath, that any person has con- cealed, embezzled, or disposed of, or has in his possession, any money, goods, property, or effects, to the possession of which such administrator is entitled in his official capacity, the Judge may cite such person to appear before the Probate Court, and may examine him on oath touching the matter of such complaint. Sec. 5689. All such interrogatories and answers must be reduced to writing and signed by the party examined, and filed in the Probate Court. If the person so cited refuses to appear and submit to such an examination, or to answer such interrogatories as may be put to him touching the mat- ter of such complaint, the court may commit him to the county jail, there to remain in close custody until he sub- mits to the order of the court. Sec. 5690. The Probate Court may at any time, order the Public Administrator to account for and deliver all the money and property of an estate in his hand, to the heirs, or to the executors or administrators regularly appointed. Sec. 5691. The Public Administrator must, once in every six months, make to the Probate Judge, under oath, a return of all estates of decedents which have come into his hands, the value of the same, the money which has come into his hands from each estate, and what he has done with it, and the amount of his fees and expenses incurred, and the balance, if any, remaining in his hands. When another person appoint- ed executor, etc . , public administrator to deliver up estate. Civil officers to give notice of waste to public administrator. Suits for property of decedents. Order to examine party charged with embezzling estate. Punishment for refusing to attend. Order on public administrator to account. Must publish condition of estate, etc. 644 5§ 5692-5702 SUCCESSION. Tit. X. Ch. XIV. Sec. 5692. After a final settlement of the affairs of any estate, if there be no heirs or other claimants thereof, the Public Administrator must pay into the Territorial Treas- ury, all moneys and effects in his hands belonging to the estate, as provided in Chapter XI of this Title for payments by agents. Sec. 5693. The Public Administrator must not be in- terested in the expenditures of any kind, made on account of any estate he administers; nor must he be associated, in business or otherwise, with any one who is so interested. Sec. 5694. When it appears, that any money remains in the hands of the Public Administrator (after a final set- tlement of the estate) unclaimed, which should be paid over to the Territorial Treasurer, the Probate Judge must order the same to be paid over; and, on failure of the Public Ad- ministrator to comply with the order within ten days after the same is made, the District Attorney for the county must immediately institute the requisite legal proceedings against the Public Administrator for a judgment against him and the sureties on his official bond, in the amount of money so withheld, and costs. Sec. 5695. When no direction is given in this chapter for the government or guidance of a Public Administrator in the discharge of his duties, or for the administration of an estate in his hands, the provisions of the preceding chap- ters of this Title must govern. Moneys, etc., paid into Territorial treasury, when. Amended. Administrator not to be interested in payments, etc. When public administrator fails to pay over money, how proceedings are instituted. Preceding chapters appli- cable to public administrator. CHAPTER XIV. Succession. Section 5700. Succession defined. 5701. Who first succeeds to possession of estates not devised, and for what purpose. 5702. Succession to and distribution of property. 5703. Illegitimate children to inherit in certain events. 5704. The mother is successor to illegiti- mate child. 5705. Degrees of kindred, how computed. Relatives of the half blood. 5706. Advancements constitute part of dis- tributive share. 5707. Advancements when too much, or not enough. 5708. What are advancements. Section 5709. Value of advancements, how deter- mined. When heir, advanced to, dies before decedent. Inheritance of husband and wife from each other. Distribution of the common property in case of death of the wife. Distribution of common property on death of the husband. Inheritance by representation. Aliens may inherit, when and how. Succession not claimed, Attorney General to cause to be sold and proceeds deposited. When the property and estate goes to the school fund. 5710. 5711. 5712. 5713. 5714. 5715. 5716. 5717. Section 5700. Succession is the coming in of another to take the property of one who dies without disposing of it by will. Sec. 5701. The property both real and personal, 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. Sec. 5702. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this 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 645 Succession defined. Succession to estates of intestates. Amended. Succession to and distribution of property. Amended. TIL X. Ch. XIV. SUCCESSION. 8 5702 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 rep- resentation. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists 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 shares to the children living or to the child living, and the issue of the deceased child or children by right of representation. 2. If the decedent leave no issue, the estate goes, one-half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either be dead, the whole of said half goes to the other; if there be no father or mother, 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 representa- tion. If the decedent leave no issue, nor husband, nor wife, the estate must go to his father and mother, in equal shares, or if either be dead, then to the other. 3. If there be neither issue, husband, wife, 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 representation. 4. If the decedent leaves a surviving husband or wife, and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife. 5. If the decedent leave neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestors must be preferred to those claiming through an ancestor more remote. 6. If the decedent leave several children, or one child and the issue of one or more children, and any such surviv- ing 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. 7. 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 parents descends to the issue of all other children of the same par- ent; and if all the issues are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation, 640 §§ 5703-5707 SUCCESSION. Tit. X. Ch. XIV. Illegitimate children, when to inherit. 8. If the decedent be a widow or widower, and leave no kindred, and the estate, or any portion thereof, was com- mon property of such decedent, and his or her deceased spouse, while such spouse was living, such common prop- erty shall go to the father of such deceased spouse, or if he be dead, to the mother. If there be no father nor mother, then such property shall go to the brothers and sisters of such deceased spouse, in equal shares, and to the lawful issue of any deceased brother or sister of such deceased spouse, by right of representation. 9. If the decedent leave no husband, wife, or kindred, and there be no heirs to take his estate, or any portion thereof, under subdivision eight, of this section, the same shall be paid into the Territorial Treasury for the support of common schools. Sec. 5703. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a compe- tent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inher- its his or her estate, in whole or in part as the case may be, in the same manner as if he had been born in lawful wed- lock, but he does not represent his father or mother by in- heriting any part of the estate of his or her kindred, either lineal or collateral, unless before his death, his parents shall have intermarried, and his father, after such marriage, ac- knowledges him as his child or adopts 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 are heirs as hereinbefore provided, in like man- ner as if all the children had been legitimate; saving to the father and mother respectively, their rights in the estates of all the children in like manner as if all had been legiti- mate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. Sec. 5704. If an illegitimate child who has not been ac- knowledged or adopted by his father, dies intestate without lawful issue, his estate goes to his mother, or in case of her decease, to her heirs at law. Sec. 5705. The decrees of kindred are Gompl^ted ac- cording to the rules of the civil law. Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance. Sec. 5706. 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 dece- dent for the purpose 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 de- cedent. Sec. 5707. If the amount of such advancement exceeds the share of the heir receiving the same, he must be exclud- ed 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 647 Mother is successor to illegitimate child. Relatives of the half blood. Advancements constitute part of distributive share. Advancements, when too much, or not enough. Tit.X. Ch.XIV. SUCCESSION. 5708-571& What are advancements. Value of advancements, how determined. When heirs, advanced to, die before decedent. less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. Sec. 5708. All gifts and grants are made as advance- ments, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such by the child or other suc- cessor or heir. Sec. 5709. If the value of the estate so advanced is ex- pressed in the conveyance, or in the charge thereof made by the decedent, or in the acknowledgment of the party re- ceiving it, it must be held as of that value in the division and distribution of the estate; otherwise it must be estimat- ed according to its value when given, as nearly as the same can be ascertained. Sec. 5710. If any child or other lineal descendant re- ceiving 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 there- of, 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. Sec. 5711. The provisions of the preceding sections of this chapter, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents. Sec. 5712. Upon the death of the wife, the entire com- munity property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her, by judicial decree, for her sup- port and maintenance, which portion is subject to her tes- tamentary disposition, and in the absence of such disposi- tion, goes to her descendants, or heirs, exclusive of her hus- band. Sec. 5713. Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same de- gree of kindred to the decedent; otherwise, according to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community property is equally sub- ject to his debts, the family allowance, and the charges and expenses of administration. Sec. 5714. Inheritance or succession "by right of rep- resentation" takes place when the descendants of any de- ceased heir take the same share or right in the estate of an- other person that their parents would have taken if living. Posthumous children are considered as living at the death of their parents. Sec. 5715. Resident aliens may take in all cases by succession 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; but no non-resident foreigner, can take, by succession, unless he Inheritance of husband and wife from each other. Community property on death of wife. Act of Feb. 21, 1879. Distribution of common property on death of husband. Act of Feb. 21, 1879. Inheritance by representation. Aliens may inherit, when, and how. N. S. ' 648 § 5716-5727 OF WILLS. TitX. Ch. XV. appears and claims such succession within five years after the death of the decedent to whom he claims succession. Sec. 5716. When succession is not claimed as provided succession not in the preceding section, the District Court, on information, begone.' what to must direct the Attorney General to reduce the property to New section. his or the possession of the Territory, or to cause the same to be sold, and the same, or the proceeds thereof, to be de- posited in the Territorial Treasury for the benefit of such non-resident foreigner, or his legal representative, to be paid to him whenever, within five years after such deposit, proof to the satisfaction of the Territorial Controller and Treasurer, is produced that he is entitled to succeed thereto. Sec. 5717. When so claimed, the evidence and the when the joint order of the Controller and Treasurer, must be filed by property and the Treasurer as his voucher, and the property delivered or tneascnooT fund. the proceeds paid to the claimant on filing his receipt there- for. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent is placed by the Territorial Treasurer, to the credit of the school fund. CHAPTER XV. Of Wills. 5726. 5727. 5728. 5729. 5730. 5731. 5732. 5733. 5734. 5735. 5736. 5737. 5738. 5739. 5740. 5741. 5742. 5743. 5745. 5746. 5747. 5748. 5749. 5750. 5751. 5752. 5753. 5754. 5755. 5756. 5757. 5758. 5759. 5760. tes- of of Section 5744. Children or issue of children of tator unprovided for by will. Share of after born child, out what part of estate to be paid. Advancement during lifetime testator. Death of devisee, etc. Devisee of land, how construed. Will passes after acquired estates. Restriction to power of devisee to charitable uses. Property of intestate chargeable with debts. Order of, resort to property for pay- ment of debts. Same; payment of legacies. Same. Specific devises and legacies. Legacies, when due. Executor not to act till qualified. Provisions as to revocations. Prior wills, execution of, etc., not effective . Law of place applies. Section 5725. Who may make a will. Separate property of married wo- men. Written will, how to be executed. Definition of an olographic will. Witness to add residence. Competency of subscribing witness. Written will, how revoked. Evidence of revocation. Revocation of duplicate. Antecedent not revived by revoca- tion of subsequent will. Revocation by marriage and birth of issue. Effect of marriage of a man on his will. Effect of marriage of a woman on her will. Contract of sale not a revocation. Mortgage not a revocation . Conveyance, not a revocation, when. When it is a revocation. Revocation of codicils. After born child, unprovided for, to succeed. Section 5725. 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 Chapter XIV of this Title, being chargeable in both cases with the payment of all the decedent's debts, as provided in this Code. Sec. 5726. A married woman may dispose of all her separate estate by will, without the consent of her husband, and may alter or revoke the will in like manner as if she were single. Her will must be attested, witnessed, and proved in like manner as all other wills. Sec. 5727. 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 follows: 1. It must be subscribed at the end thereof by the testa- tor himself, or some person in his presence and by his direc- tion must subscribe his name thereto; 649 Who may make a will. Separate property of married woman. Written will, how to be executed. Tit. X. Ch. XV. OF WILLS. §§ 5728-57^6 Definition of an olographic will. Witness to add residence. Competency c f subscribing witness. Written will, how revoked. 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 ac- knowledging 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 presence. Sec. 5728. An olographic will is one that is entirely written, dated and signed, by the hand of the testator him- self. It is subject to no other form, and may be made in or out of this Territory, and need not be witnessed. Sec. 5729. A witness to a written will must write, with his name, his place of residence; and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will. Sec. 5730. If the subscribing witnesses to a will are competent at the time of attesting its execution, their sub- sequent incompetency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise satisfactorily proved. Sec. 5731. Except in the cases in this Chapter men- tioned, no written will, nor any part thereof, can be revoked or altered otherwise than : 1. By a written will, or other writing of the testator, de- claring 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 de- stroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his pre- sence and by his direction. Sec. 5732. 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. Sec. 5733. The revocation of a will, executed in dupli- cate, may be made by revoking one of the duplicates. Sec. 5734. If, after making a will, the testator duly makes and executes a second will, the destruction, cancella- tion, or revocation of such second will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation, or re- vocation, the first will is duly republished. Sec. 5735. If, after having made a will, the testator marries, and has issue of such marriage, born either in his lifetime or after 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 pro- vided 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. Sec. 5736. If, after making a will the testator marries, and the wife survives the testator, the will is revoked, un- 650 Evidence of revocation. Revocation of duplicate. Antecedent not revived by revocation of subsequent will. Revocation by marriage and birth of issue. Effect of marriage of a man on his will. §§ 5737-5745 OF WILLS. Tit. X. Ch. XV. less provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way men- tioned therein as to show an intention not to make such pro- vision; and no other evidence to rebut the presumption of revocation must be received. Sec. 5737. A will, executed by an unmarried woman, is revoked by her subsequent marriage, and is not revived by the death of her husband. Sec. 5738. 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 the by will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise against the devisees or legatees, as might be had against the testa- tor's successors, if the same had passed by succession. Sec. 5739. 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 revoca- tion of any will relating to the same estate which was pre- viously executed; but the devise and legacies therein con- tained must pass, subject to such charge or incumbrance. Sec. 5740. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously dis- posed 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. Sec. 5741. If the instrument by which an alteration is made in the testator's interest in a thing previously disposed of by his will expresses his intent that it shall be a revoca- tion, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary 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. Sec. 5742. The revocation of a will revokes all its codicils. Sec. 5743. Whenever a testator has a child born 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 men- tioned in his will, the child succeeds to the same portion of the testator's real and personal property that he would have succeeded to if the intestator had died intestate. Sec. 5744. 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 the testator as if he had died intestate, and succeeds thereto as provided in the preceding section. Sec. 5745. 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 herein- before mentioned, the same must first be taken from the es- tate not disposed of by the will, if any; if that is not suffi- cient, 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 the testator in relation to some specific devise 651 Marriage of woman, effect of on will. Contract of sale not a revocation. Mortgage not a revocation of will. Conveyance, when not a revocation. When it is a revocation. Codicils, revocation of. Afterborn child, unprovided for, to succeed. Children or issue of children of testator, unprovided for by will. Share of afterborn child, out of what part of estate to be paid. Tit. X. Ch.XV. OF WILLS. §§ 5746-5752 Advancement during lifetime of testator. Death of devisee. •Devisees of land, how construed. Will passes after acquired estates. or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devise, legacy or pro- vision may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted. Sec. 5746. If such children, or their descendants, so un- provided for, had an equal proportion of the testator's es- tate bestowed on them in the testator's lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections. Sec. 5747. 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 he survived the testator. Sec. 5748. Every devisee 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. Sec. 5749. Any estate, right or interest in lands ac- quired by the testator after the making of his will, passes thereby and in like manner as if the title thereto was vested in him at the time of making the will, unless the contrary manifestly appears 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. Sec. 5750. No estate, real or personal, shall be be- queathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for char- itable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made, at least thirty days prior to such death, such de- vise or legacy, and each of them shall be valid; Provided, That no such devises or bequests shall collectively exceed one-third of the estate of the testator leaving lineal descend- ants, and in such case, a pro rata deduction from such de- vises or bequests shall be made so as to reduce the aggre- gate thereof to one-third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee next of kin, or heirs, accord- ing to law. Sec. 5751. When a person dies intestate, all his prop- erty, real and personal, without any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in this Code. Sec. 5752. The property of a testator, except as other- wise specially provided for in this Code, must be resorted to for the payment of debts in the following 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 specially devised or bequeathed ; and, 652 Restriction of power to devise to charitable uses. Property of intestate chargeable with debts. Order of, resort to property for payment of debts. 5753-5760 OF WILLS. Tit. X. Ch. XV. Same, paymeut of legacies. 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. Sec. 5753. The property of a testator, except as other- wise specially provided for in this Code, must be resorted to for the payment of legacies, in the following order: 1. The property which is expressly appropriated 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 (not) specifically devised or be- queathed. Sec. 5754. Legacies to husband, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator. Sec. 5755. In a specific devise or legacy, the title passes by the will, but possession can only be obtained from the personal representative; and he may be authorized by the judge of the Probate Court to sell the property devised and bequeathed, in the cases herein provided. Sec. 5756. Legacies are due and deliverable at the ex- piration of one year after the testator's decease. Annuities commence at the testator's decease. Sec. 5757. No person has any power, as an executor, until he qualifies, except that, before letters have been is- sued, he may pay funeral charges and take necessary meas- ures for the preservation of the estate. Sec. 5758. The provisions of this Title in relation to the revocation of wills apply to all wills made by any testator living at the expiration of one year from the time it takes effect. Sec. 5759. The provisions of this Title do not impair the validity of the execution of any will made before it takes effect, or affect the construction of any such will. Sec. 5760. Except as otherwise provided, the validity and interpretation of wills are governed, when relating to real property within this Territory, by the law of this Terri- tory; when relating to personal property, by the law of the testator's domicile. Same. Specific devises and legacies. Legacies, when due. Executor not to act till qualified. Provisions as to revocations. Execution and construction of prior wills not affected. The law of what place applies. 653 Tlt.X. Ch.XVI. OF GUARDIAN AND WARD. j§ 5770-5771 CHAPTER XVI. Of Guardian and Ward. Probate court to appoint guardians, when. Amended. 5771. 5772. 5773. 5774. 5775. 5776. 5777. 5778. 5779. 5780. 5781. 5782. 5783. 5784. 5785. 5786. 5787. 5788. 5789. 5790. 5791. 5792. 5793. 5794. 5795. 5796. 5799. 5800. 5801. 5802. 5803. 5804. 5805. 5806. 5807. 5808. 5809. 5810. 5811. 5812. 5813. 5814. 5815. 5816. 5817. 5818. 5819. 5820. 5821. When and when not minor may nominate guardian. Section 5770. Probate Judge to appoint guardians, when, and on what petition. When minor may nominate guard- ian ; when not. When appointment may be made by Judge, when minor is over four- teen. Nomination by minors after arriving at fourteen. Father or mother entitled to guard- ianship. Minor having no father or mother. Powers and duties of guardian. Bond of guardian, conditions of. Probate Judge may insert conditions in order appointing guardian. Letters of guardianship and bond of guardian to be recorded. Maintenance of minor out of income of his own property. Appointment of guardian by parent. Guardian to give bond. Powers limited. Power of courts to appoint guard- ians and next friend not impaired. Guardians of insane and other in- competent persons. Appointment by Probate Judge after hearing. Powers and duties of such guardians. Proceeding for restoration of insane, etc. Guardian to pay debts of ward out of ward's estate. Guardian to recover debts due his ward and represent him. Guardian to manage his estate, maintain ward, and sell real estate. Maintenance, education and sup- port of ward, how enforced. May assent to a partition of real estate. Guardian to return inventory of es- tate of ward. Appraisers to be appointed. Like proceedings when other property acquired. Settlement of guardians. Allowance of accounts of joint guardians. Expenses and compensation of guardians . 5797. May sell property in certain cases. Section 5770. The Probate Court of each county, when it appears necessary or convenient, may appoint guardians for the persons and estates, or either 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 Territory and have estate within the county. Such appointment may be made on the petition of a relative or other person on behalf of the minor, or on the petition of the minor, if fourteen years of age. Before making such appointment, the court must cause such notice as such court deems reasonable to any person having the care of such minor, and to such relatives of the minor in the county as the court may deem proper. Sec. 5771. If the minor is under the age of fourteen years, the Probate Court may nominate and appoint his guardian. If he is above the age of fourteen years, he may nominate his own guardian, who, if approved by the court, must be appointed accordingly. 654 Section 5798. Sale of real estate to be made upon order of court. Application of proceeds of sales . Investment of proceeds of sales. Order for sale, how obtained. Notice to next of kin, how given. Copy of order to be served, published, or consent filed. Hearing of application. Who may be examined on such hearing. Costs to be awarded to whom. Order of sale, to specify what. Bond before selling. All proceedings for sales of property by guardians to conform to Chap- ter VII of this Title. Limit of order of sale. Conditions of sales of real estate of minor heirs, bond and mortgage to be given for deferred payments. Probate Court may order the invest- ment of money of the ward. Guardian of non-resident persons. Powers and duties of guardians ap- pointed under preceding section. Such guardians to give bonds. To what guardianship shall extend. Removal of non-resident ward's property. Proceedings on such removal. Discharge of person in possession. Examination of persons suspected of defrauding wards or concealing property. Removal and resignation of guardian and surrender of estate. 5822. Guardianship, how terminated. 5823. New bond, when required. 5824. Guardian's bond to be filed. Action on. 5825. Limitation of actions on guardian's bond. 5826. Limitation of actions for the re- covery of property sold. 5827. More than one guardian of a person may be appointed. 5828. Power of Probate Judge in cham- bers . 5829. Provisions of section apply to guardian. £§ 5772-5778 OF GUARDIAN AND WARD. Tit.X. Ch.XVI When judge may make appointment. minors after arriving at fourteen . Father or mother entitled to guardianship. Minor having no parents. Powers and duties of guardian . Sec. 5772. If the guardian nominated by the minor is not approved by the court, or if the minor resides out of the Territory, or if, after being duly cited by the court, he neglects for ten days to nominate a suitable person, the court may nominate and appoint the guardian, in the same manner as if the minor were under the age of fourteen years. Sec. 5773. When a guardian has been appointed by the Nomination by court for a minor under the age of fourteen, the minor, at any time after he attains that age, may appoint his own guardian, subject to the approval of the Probate Court. Sec. 5774. 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. Sec. 5775. If the minor has no father or mother living, competent to have the custody and care of his education, the guardian appointed shall have the same. Sec. 5776. 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. Sec. 5777. Before the order appointing any person Bond of guardian under this chapter takes effect, and before letters gua*dian. X1T1 ,x. /?i iiiji conditions of . issue, the Judge must require of such person a bond to the minor, with sufficient sureties, to be approved by the Judge, and in such sum as he shall order, conditioned that the guardian will faithfully execute the duties of his trust ac- cording to law; and the following conditions shall form a part of such bond, without being expressed therein: 1. To make an inventory of all the estate, real and per- sonal, 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 dis- charge his trust in relation thereto, and also in relation to the care, custody, and education 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 in- terests derived therefrom, and of the management and dis- position of the same, within three months after his appoint- ment, and at such other times as the court directs; and at the expiration of his trust to settle his accounts with the court or with the ward, if he be of full age, or his legal rep- resentatives, 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 entitled 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 indorsed thereon that he will perform the duties of his office, as such guardian, according to law. Sec. 5778. When any person is appointed guardian of Probate judge a minor, the Probate Court may, with the consent of such SmiiTion^in f\KK order appointing OOO guardian. Tit.X. Ch.XVl. OF GUARDIAN AND WARD. |§ 5779-5786 Letters of guardianship, and bond of . Maintenance of minor out of income of his own property"? Appointment of guardian by will or deed. Amendment. person, insert in the order of appointment conditions not other- wise obligatory, providing for the care, treatment, educa- tion, and welfare of the minor. The performance of such conditions is a part of the duties of the guardian, for the faith- ful performance of which he and the sureties on his bond are responsible. Sec. 5779. All letters of guardianship issued, and all guardians' bonds executed under the provisions of this chap- ter, with the affidavits and certificates thereon, must be re- corded by the Clerk of the Probate Court having jurisdic- tion of the persons and estates of the wards. Sec. 5780. If any minor, having a father living, has property, the income of which is sufficient for his mainten- ance and education in a manner more expensive than his father can reasonably afford, regard being had to the situ- ation 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 there- for may be allowed accordingly in the settlement of the ac- counts of his guardian. Sec. 5781. A guardian 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 par- ent appointing: 1. If the child be legitimate, by the father, with the writ- ten 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. Sec. 5782. Every testamentary guardian must give bond and qualify, and has the same powers and must per- form the same duties, with regard to the person and estate of his ward, as guardians appointed by the Probate Court, except so far as their powers and duties are legally modified, enlarged, or changed by the will by which such guardian was appointed. Sec. 5783. Nothing contained in this chapter affects or impairs the power of any court to appoint a guardian to de- fend the interests of any minor interested in any suit or matter pending therein. Sec. 5784. When it is represented to the Probate Judge, upon verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to manage his property, the Judge must cause a 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 person, if able to at- tend, must be produced before him on the hearing. Sec. 5785. If, after a full hearing and examination upon such petition, it appears to the Probate Court that the person in question is incapable of taking care of himself and managing his property, the court must appoint a guard- ian of his person and estate, with the powers and duties in this chapter specified. Sec. 5786. 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 to give bond, powers limited. Power of courts to appoint guardians. Guardians of insane and other incompe« tent persons. Appointment by probate judge after hearing. Powers and duties of such guardians. 656 §§ 5787-5791 OF GUARDIAN AND WARD. Tit. X. Ch. XVI. guardian is legally discharged; and he must give bond to such ward in like manner and with like conditions as be- fore prescribed with respect to the guardian of a minor. Sec. 5787. Any person who has been declared insane or incompetent, or the guardian or any relative of such person, 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 snail state that such per- son is then sane or competent. Upon receiving the petition the court must appoint a day for a hearing before the court, and if the petitioner request it, shall order an investigation before a jury, which shall be summoned and impaneled in the same manner as juries are summoned and impaneled in civil actions. The court shall cause notice of the trial to be given to the guardian of the person so declared insane or incompetent, 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 person so de- clared insane or incompetent, and, in the discretion of the court, any other person may contest the right to the relief demanded. Witnesses may be required to appear and testi- fy, as in civil cases, and may be called and examined by the court on its own motion. If it be found that the person 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. Sec. 5788. Every guardian appointed under the provis- ions of this chapter, whether for a minor or any other per- son, must pay all just debts due from the ward, out of his personal estate and the income of his real estate, if suffi- cient; if not, then out of his reaj, estate, upon obtaining an order for the sale thereof, and depostt-mg the same in the manner provided in this Title for the sale of real estate of decedents. Sec. 5789. Every guardian must settle all accounts of the ward, and demand, sue for, and receive all debts due to him, or may, with the approbation of the Probate Judge, compound for the same and give discharges to the debtors on receiving a fair and just dividend of his estate and ef- fects; and he must appear for and represent his ward in all legal suits and proceedings, unless another person is appoint- ed for that purpose. Sec. 5790. Every guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, as far as may be necessary, for the com- fortable and suitable maintenance, support and education of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell the real estate, upon obtaining an order of the 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. Sec. 5791. When a guardian has advanced, for the nec- essary maintenance, support, or education of his ward, an amount not disproportionate to the value of his estate or his Proceeding for restoration of insane, etc. Amendment. Guardian to pay debts of ward out of ward's estate. Guardian to recover debts due hi6 ward Guardian to manage bin estate, main- tain ward, and sell real estate. Maintenance, support and education oi ward, bow enforced. 42 657 Tit. X. Ch. XVI. OF GUAEDIAN AND WARD. j§ 5792-5798 May assent to a partition of real estate . Guardian to return inventory . Appraisers to be appointed . 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 settlements. 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, and enforce such order by proper process. Whenever any third person, at his request, supplies a ward with such suitable and nec- essary 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 by due process. Sec. 5792. The guardian may join in and assent to a partition of the real estate of the ward, wherever such assent may be given by any person. Sec. 5793. 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. The Probate Court may, upon application for that purpose by any person, compel the guardian to render an account to the Probate Court of the estate of his ward. The inven- tories and accounts so to be returned or rendered must be sworn to by the guardian. All the estate of the ward des- cribed in the first inventory must be appraised by ap- praisers appointed, sworn, and acting in the manner pro- vided for regulating the settlement of the estate of dece- dents. Such inventory, with the appraisement of the prop- erty therein described, must be recorded by the Clerk of the Probate Court in a proper book kept in his office for that purpose. Whenever any other property of the estate of any ward is discovered, not included in the inventory of the es- tate already 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 ap- praisement thereof that are herein provided in relation to the first inventory and return. Sec. 5794. The guardian must, upon the expiration of a year from the time of his appointment, and as often there- after as he may be required, present his account to the Pro- bate Court for settlement and allowance. Sec. 5795. When an account is rendered by two or more joint guardians, the Probate Judge may, in his discre- tion, allow the same upon the oath of any of them. Sec. 5796. Every 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 ser- vices as the court in which his accounts are settled deems just and reasonable. Sec. 5797. When the income of an estate under guar- dianship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, his guardian may sell his real or personal estate for that pur- pose, upon obtaining an order therefor. Sec. 5798. 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 Like proceed- ings -when other property acquired . Settlements of guardians. Allowance of accounts . Expenses and compensation of guardian . May sell property in certain cases. Sale of real estate to be made upon order of the court. 658 §§ 5799-5805 OF GUARDIAN AND WARD. Tit. X. Ch.XVI. Application of proceeds of sales. Investments of proceeds of sales. Order for sale, how obtained. Notice to next of kin, how given. 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. Sec. 5799. If the estate is sold for the purposes men- tioned in this chapter, 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 pur- pose, as far as may be necessary, in like manner as if it had been personal estate of the ward. Sec. 5800. If the estate is sold for the purpose of put- ting out or investing the proceeds, the guardian must make the investment according to his best judgment, or in pur- suance of any order that may be made by the Probate Court. Sec. 5801. To obtain an order for such sale, the guar- dian must present to the Probate Court of the county in which he was appointed guardian, a verified petition there- for, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale. Sec. 5802. If it appears 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 Judge 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 time and place therein spec- ified, 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 ap- pears that it is necessary or would be beneficial to the ward to sell the personal estate or some part of it, the court must order the sale to be made. Sec. 5803. A copy of the order must be personally served on the next of kin of the ward, and on all persons interested 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, if there be none printed in the county, then in such newspaper as may be specified by the court or Judge in the order. If written consent to making the order of sale is sub- scribed by all persons interested therein, and the next of kin, notice need not be served or published. Sec. 5804. 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 publica- tion of the order, must hear and examine the proofs and allegations of the petitioner and of the next of kin, and of all other persons interested in the estate who oppose the application. Sec. 5805. On the hearing the guardian may be ex- amined on oath, and witnesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the Probate Copy of order to' be served, etc. Hearing of application . Who may be examined on sucn hearing. 659 Tit.X. Ch.XVI. OF GUARDIAN AND WARD. §§ 5806-5813 Costs to be awarded, to ■whom. Order of sale, to specify -what. Bond before selling. Amended. Proceedings for sale of property . Limit of order of sale. Conditions of sales of real estate of minor heirs. Bond and mortgage to be given for defer- red payments. Probate court may order investment of money of ward Guardians of non-resident persons. Court or Judge, in the same manner and with like effect as in other cases provided for in this Title. Sec. 5806. If any person appears and objects to the granting of any order prayed for under the provisions of this chapter, 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, and enforce the payment thereof. Sec. 5807. 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. Sec. 5808. Every guardian authorized to sell real es- tate must, before the sale, give bond to the ward, with suffi- cient surety, to be approved by the court, or a judge thereof, with condition to sell the same in the manner, and to ac- count for the proceeds of the sale, as provided for in this chapter, and Chapter VII of this Title. Sec. 5809. All the proceedings under petition of guard- ians for sales of property of their wards, giving notice and the hearing of such petitions, granting or refusing the order of sale, directing the sale to be made at public or private sale, reselling the same property, return of sale and applica- tion for confirmation thereof, notice and hearing of such ap- plication, making orders rejecting or confirming sales and reports of sales, ordering and making conveyances of prop- erty sold, accounting and the settlement of account, must be had and made as required by the provisions of this Title concerning estates of decedents, unless otherwise specially provided in this chapter. Sec. 5810. No order of sale granted in pursuance of this chapter continues in force more than one year after granting the same, without a sale being had. Sec. 581 1. All sales of real estate 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 mortgage on the real estate sold, with such additional security as the Judge deems nec- essary and sufficient to secure the faithful payment of the deferred payments and the interest thereon. Sec. 5812. 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 Pro- bate 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 and give such directions as are needful for the management, invest- ment, and disposition of the estate and effects, as circum- stances require. Sec. 5813. When a person liable to be put under guardianship, according to the provisions of this chapter, 660 §§ 5814-5819 OF GUARDIAN AND WARD. Tit.X. Ch.XVL Powers and duties of guardian. Guardians to give bonds. To what guardianship shall extend . Removal of non-resident ward's property . resides without 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 Court 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 ap- pears proper, a guardian for such absent person may be ap- pointed. Sec. 5814. Every guardian, appointed under the pre- ceding section, has the same powers and performs the same duties, with respect to the estate of the ward found within this Territory, and with respect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed under this chapter. Sec. 58 15. Every 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. Sec. 5816. The guardianship which is first lawfully granted, of any person residing without this Territory, ex- tends to all the estate of the ward within the same, and ex- cludes the jurisdiction of the Probate Court of every other county. Sec. 5817. 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 a State, another Territory, or foreign country without conflict with any restriction or limitation thereupon, or impairing the right of the ward thereto, such property may be removed to the Territory, State or foreign country of the residence of the ward, upon the application of the guardian to the Probate Court of the county in which the estate of the ward, or the principal part thereof, is situated. Sec. 5818. 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 un- der the hand of the clerk, and 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 the State or Territory of his appointment to the possession of the estate of the ward. Upon such application, unless good cause to the contrary is shown, the Probate Court must make an order, granting to such guardian leave to take and remove the property of his ward to the state or place of his residence, which i authority to him to sue for and receive the same in his own name, for the use and benefit of his ward. Sec. 5819. Such order is a discharge of the executor, administrator, local guardian, or other person in whose pos- session 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. 661 Proceedings on such removal. Discharge of person in possession 'Tit.X. Ch.XVL OF GUARDIAN AND WARD. §§ 5820-5827 Examination of persons suspected of defrauding wards, etc. Benaoval and resignation of guardian. Surrender of estate. Guardianship, how terminated. New bond when required. Guardian's -bond to be filed. Limitation of actions on guardian's bond. Limitation of actions for the recovery of property sold. More than one guardian may be appointed. Sec. 5820. Upon complaint made to him by any guard- ian, 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, embezzled, or conveyed away, any of the money, goods, or effects, or an instrument in writing, belonging to the ward or his estate, the Probate Judge may cite such suspected person to appear before him, and may examine and proceed with him on such charge in the manner provided in this Title with respect to persons suspected of, and charged with concealing or em- bezzling the effects of a decedent. Sec. 5821. When a guardian, appointed either by the testator or the Probate Court, becomes insane or otherwise incapable of discharging his trust, or unsuitable therefor, or has wasted or mismanaged the estate, or failed for thirty days after being required to render an account or 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 lawfully entitled thereto. Every guardian may resign when it appears proper to allow the same; and upon the res- ignation or removal of a guardian, as herein provided, the Probate Court or the Judge thereof may appoint another in the place of the guardian who has resigned or has been re- moved. Sec. 5822. The marriage of a minor ward terminates the guardianship, and the guardian of an insane or other person may be discharged by the Probate Court when it ap- pears to him, on the application of the ward, or otherwise, that the guardianship is no longer necessary. Sec. 5823. The Probate Judge may require a new bond to be given by a guardian whenever he deems it necessary, and may discharge the existing sureties from further liabil- ity, after due notice given as he may direct, when it shall appear that no injury can result therefrom to those interest- ed in the estate. Sec. 5824. Every bond given by a guardian must be filed and preserved in the office of the Clerk of the Probate Court 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. Sec. 5825. No action can be maintained against the sureties on any bond given by a guardian, unless it be com- menced within three years from the discharge or removal of the guardian; but if at the time of such discharge, the person entitled to bring such action is under any legal dis- ability to sue, the action may be commenced at any time within three years after such disability is removed. Sec. 5826. 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 minori- ty or otherwise, at the time when the cause of action ac- crues, within three years next after the removal thereof. Sec. 5827. The court, in its discretion, whenever nec- essary, may appoint more than one guardian of any person 662 §8 5828-5829 OF GUARDIAN AND WARD. Tit. X. Ch. XVI. subject to guardianship, who must give bond and be gov- erned and liable in all respects as a sole guardian. Sec. 5828. The power conferred upon the Probate Judge pOWerof in relation to guardians and wards, may be exercised by probate judge in him at chambers, or as the act of the Probate Court, when c ambers- holding such court; and any order appointing a guardian must be entered as, and become a decree of the court. The provisions of this Title relative to the estates of decedents, so far as they relate to the practice in the Probate or Dis- trict Courts, apply to proceedings under this chapter. Sec. 5829. The provisions as to qualification and justi- certain pro- fication of sureties to undertakings, are hereby declared to 2uardfans.ply t0 apply to guardians appointed by the court, and to the bonds Amended. taken, or to be taken, from such guardians, and to the sure- ties on such bonds. 663 Tit XL OF SOLE TRADERS. §§ 5850-5855 Who may become sole traders . Notice, bow given and what to contain . Petition, what to contain, and wben filed. May bave $500 of community or husband's property. Who may oppose it and how. Trial or hearing. TITLE XL OF SOLE TRADERS. Section 5850. Who may become sole traders. 5851. Notice, bow given and what to con- tain. 5852. Petition, what to contain and when filed. 5853. May have five hundred dollars of community or husband's property. 5854. Who may oppose it, and how. Section 5855. Trial or hearing . 5850. Decree, what it must be. 5857. Oath, copy of order to be recorded. 5858. Rights and liabilities of sole traders. 5859. Sole trader must maintain her children. 5860. Husband of sole trader not liable for debts. Section 5850. A married woman may become a sole trader by the judgment of the District Court of the county in which she has resided for six months next preceding the application. Sec. 5851. A person intending to make application to become a, sole trader, must publish notice of such intention in a newspaper published in the county, or if none, then in a newspaper published in an adjoining county, for four suc- cessive weeks. The notice must specify the term, and the day upon which the application will be made, the nature and place of the business proposed to be conducted by her, and the name of her husband.. Sec. 5852. Ten days prior to the day named in the notice, the applicant must file a verified petition, setting forth : 1. That the application is made in good faith, to enable the applicant to support herself, or herself and others de- pendent upon her, giving their names and relation; 2. The fact of insufficient support from her husband, and the causes thereof, if known; 3. Any other grounds of application which are good causes for a divorce, with the reason why a divorce is not sought; and, 4. The nature of the business proposed to be conducted, and the capital to be invested therein, if any, and the sources from which it is derived. Sec. 5853. The applicant may invest in the business proposed to be, a sum derived from the community property, or of the separate property of the husband, not exceeding five hundred dollars. Sec. 5854. Any creditor of the husband may oppose the application, by filing in the court (prior to the day named in the notice) a written opposition verified, containing either: 1. A specified denial of the truth of any material allega- tion of the petition; or setting forth, 2. That the application is made for the purpose of defraud- ing the opponent; or, 3. That the application is made to prevent, or will pre- vent, him from collecting his debt. Sec. 5855. On the day named in the notice, or on such other day to which the hearing may be postponed by the court, the applicant must make proof of publication of the notice hereinbefore required, and the issues of fact joined, if any, must be tried as in other cases; if no issues are joined, the court must hear the proofs of the applicant, and find the facts in accordance therewith. 664 §§ 5856-5860 OF SOLE TKADERS. Tit XL Sec. 5856. If the facts found sustain the petition, the court must render judgment, authorizing the applicant to carry on in her own name and on her own account, the bus- iness specified in the notice and petition. Sec. 5857. The sole trader must make, and file with the Clerk of the court, an affi davit, in the following form: "I, A. B., do, in the presence of Almighty God, solemnly . swear that this application was made in good faith, for the purpose of enabling me to support myself (and any depend- ent, such as husband, parent, sister, child, or the like, nam- ing them, if any), and not with any view to defraud, delay or hinder any creditor, or creditors of my husband; and that, of the moneys so to be used by me in business, not more than five hundred dollars have come, either directly jor indirectly, from my husband. So help me God." A certified copy of the decree,' with this oath indorsed thereon, must be recorded in the office of the recorder of the county where the business is to be carried on, in a book to be kept for such purpose. Sec. 5858. When the judgment is made and entered, and a copy thereof, with the affidavit provided for in the last section duly recorded, the person therein named is en- titled to carry on the business specified, in her own name, and the property, revenues, moneys, and credits so by her invested, and the profits thereof, belong exclusively to her, and are not liable for any debts of her husband; and she thereafter has all the privileges of and is liable to all legal processes provided for debtors and creditors, and may sue and be sued alone, without being joined with her husband; Provided, however, That she shall not be at liberty to carry on said business in any other county than that named in the published notice, until she has recorded in such other county a copy of said judgment and affidavit. Sec. 5859. A married woman who is adjudged a sole trader is responsible and liable for the maintenance of her minor children. Sec. 5860. The husband of a sole trader is not liable for any debts contracted by her in the course of her sole trader's business, unless contracted upon his written con- sent. Decree, what it must be. Oath, copy at order to be recorded. Rights and liabilities of sole traders. Sole trader mw maintain her children. Husband of 6<>i" trader not liablo for debts. 6'35 Tit. XII. OF PROCEEDINGS IN INSOLVENCY. §3 5875-5877 TITLE XII. OF PROCEEDINGS IN INSOLVENCY. Insolvent may be discharged from debts. Petition. Schedule. Section 5875. Insolvent may be discharged from his debts. Petition. Schedule. Inventory. Affidavit Order of transfer of property and stay of proceedings. Publication. Election of assignee. Bond. Assignee, when appointed. Assignment. Authority of assignee. Recording assignment. Resignation of assignee. Powers of assignee. Delivery of books and papers. Embezzlement. Penalties, etc., against persons suspected of concealing, etc . , prop- erty of debtor. Estate to be converted into money. Private sales. Sale of perishable property. Outstanding debts. Expenses for management of prop- erty. Commissions. Accounts of assignee. Orders for accounts and distribu- tions . Creditors to share pro rata. Dividends not to be disturbed for subsequently proved debts. Discharge of assignee. Final account of assignee. Insolvency of partnerships. Applicable to corporations . All debts may be proved against debtor. 5876. 5877. 5878. 5879. 5880. 5881. 5882. 5883. 5884. 5tf85. 5886. 5887. 5888. 5889. 5890. 5891. 5892. 5893. 5894. 5895. 5896. 5897. 5898. 5899. 5900. 5901. 5902. 5903. 5904. Section 5905. Proof of demands for tortious acts. 5906. Proof of demands against debtor, or indorser, surety, etc. 5907. Contingent liabilities. 5908. Person liable for debtor may prove debt, etc. 5909. Rent and installment debts. 5910. Mutual credits. Set-offs and counter claims. 5911. Mortgages and pledges against debtor. 5912. Creditors proving claims to waive suits and rights of action. 5913. Examination of debtor. 5914. Petition for discharge. Notice to creditors . 5915. Discharge, when not granted. 5916. Opposition to discharge. 5917. Certificate of discharge. 5918. Fraudulent debts not discharged. 5919. Effect and operation of discharge. 5920. Refusal of discharge not to affect administration of estates. 5921. Death of insolvent pending proceed- ings. 5922. Statute of limitations, when not to run. 5923. Representation by attorney. 5924. Homesteads and exemptions. 5925. What deemed commencement of proceedings. 5926. Certain words defined. 5927. Receivers. 5928. Contempts. 5929. Attachment liens, costs in contested matters. 5930. Dismissals and discontinuances. 5931. Appeals. 5932. Other assignments void. Section 5875. Every insolvent debtor may, upon com- pliance with the provisions of this Title, be discharged from his debts and liabilities. Sec. 5876. An insolvent debtor, owing debts exceeding in amount the sum of three hundred dollars, may apply by petition to the District Court of the county, in which he has resided for six months next preceding the filing of his peti- tion, to be discharged from his debts and liabilities. In his petition he must set forth his place of residence, his inability to pay all his debts in full, his unwillingness to surrender all his estate and effects for the benefit of his creditors, and his desire to obtain a discharge from his debts and liabilities, and must annex thereto a schedule and inventory, and valuation, in compliance with the provisions of this Title. The filing of such petition is an act of insolvency, and there- upon such petitioner must be adjudged an insolvent debtor. Sec. 5877. Said schedule must contain a full and true statement of all his debts and liabilities, exhibiting, to the best of his knowledge and belief, to whom said debts or liabilities are due, the place of residence of his creditors, and the sum due to each; the nature of the indebtedness or de- mand, whether founded on written security, obligation, con- tract or otherwise; the true cause and consideration thereof, and the time and place when and where said indebtedness accrued, and a statement of any existing pledge, lien, mortgage, judgment, or other security for the payment of the same. 666 §§ 5878-5881 OF PROCEEDINGS IN INSOLVENCY. Tit.XIT. Sec. 5878. Said inventory must contain an accurate inventory. description of all the estate, both real and personal, of the petitioner, including his homestead, if any, and all property exempt by law from execution, and where the same is situated, and all incumbrances thereon. Sec. 5879. The petition, schedule, and inventory must Affidavit. be verified by the affidavit of the petitioner, annexed there- to, and must be in form substantially as follows: I, , do solemnly swear that the schedule and inventory now delivered by me contain a full, perfect and true discovery of all the estate, real, personal and mixed, goods and effects, to me in any way belonging; all such debts as are to me owing, or to any person or persons in trust forme, and all securities and contracts, and contracts where- by any money may hereafter become payable, or any bene- fit or advantage accrue to me or to my use, or to any other person or persons in trust for me; that I have no lands, money, stock or estate, reversion or expectancy, beside that set forth in my schedule and inventory; that I have in no in- stance created or acknowledged a debt for a greater sum than I honestly and truly owe; that I have not, directly or indirectly, sold or otherwise disposed of or concealed, any part of my property, effects or contracts; that I have not, in contemplation of insolvency, in any way compounded with my creditors whereby to secure the same, or to receive, or to expect any profit or advantage therefrom, or to defraud or deceive any creditor to whom I am indebted in any manner. So help me God. Sec. 5880. Upon receiving and filing such petition, order of transfer schedule and inventory, the court, or the Judge thereof, ^ndTta^df must make an order declaring the petitioner insolvent, and proceedings. directing the Sheriff of the county to take possession of all the estate, real and personal, of the debtor, except such as may be by law exempt from execution, and of all his deeds, vouchers, books of account and papers, and to keep the same safely until the appointment of an assignee. Such order must further forbid the payment of any debts and the delivery of any property belonging to such debtor, to him, or for his use, and the transfer of any property by him; and must further appoint a time and place for a meeting of the creditors to prove their debts and choose one or more as- signees of the estate, which must not be less than thirty days after the making of said order, and shall designate a newspaper or newspapers of general circulation in which publication thereof must be made. Upon the granting of said order, all proceedings against the said insolvent are stayed. Sec. 5881. A copy of said order must immediately be publication. published by the Clerk of said Court, in the newspaper or newspapers designated therein, as often as the newspaper is printed before the meeting of creditors, and be served by the clerk forthwith by United States mail, postage prepaid, or personally, on all creditors named in the schedule. The order of adjudication must direct the publication thereof in a newspaper published in the county in which the petition is filed, if there be one, and if there be none, in a newspaper published nearest to such county; Provided, That no order of adjudication must be entered unless there first be depos- 667 Tit. X12. OF PROCEEDINGS IN INSOLVENCY. . §§5882-5885. Election of assignee bond. ited with the clerk in addition to the usual cost of com- mencing said proceedings, a sum of money sufficient to de- fray the cost of the publications ordered by the court, and ten cents for each copy to be mailed to, or served on, the creditors, which latter sum is hereby constituted the legal fee of the clerk for the mailing or service required in this section. Sec. 5882. At a meeting of the creditors, in open court, those having proven their claims, by filing a verified state- ment showing the amount, nature, and security, if any, must proceed to the election of one assignee. The assignee must be a resident of the county where the insolvent resides, or where he has carried on his business. In electing an assignee, the opinion of the majority in amount of claims must prevail. The Clerk of the court must keep a minute of the deliberations of said creditors, and of the election and appointment of an assignee. The assignee must file, within five days, unless the time be extended by the court or Judge, with the clerk, a bond, in an amount to be fixed by the court, or Judge, of the Territory of Idaho, with two or more sufficient sureties approved by the court, or Judge, and conditioned for the faithful performance of the duties devolving upon him. The bond is not void upon the first recovery, but may be sued upon from time to time by any creditor aggrieved, in his own name, until the whole penalty is exhausted. The sureties on such bond may be required to justify upon the application of any party interested, in the same manner as bail upon arrest in civil cases. Sec. 5883. If, on the day appointed for the meeting, the creditors to not attend, or refuse to elect an assignee, or if after election, the assignee fails to qualify within the proper time, the court or Judge, before whom the said meeting takes place, may appoint an assignee and fix the amount of his bond. Sec. 5884. As soon as the assignee is appointed and qualified, the Clerk of the Court must, by an instrument under his hand and seal of the court, assign and convey to the assignee all the estate, real and personal, of the debtor, with all his deeds, books, and papers relating thereto, and such assignment relates back to the commencement of the proceedings in insolvency, and by operation of law vests the title. to all such property and estate, both real and per- sonal, in the assignee. Such assignment vests in the assignee all the estate of the insolvent debtor not exempt by law from execution, subject to the lawful and bona fide liens and incumbrances thereon. Sec. 5885. The assignee has the right to recover all es- tate, debts, and effects of said insolvent. If, at the time of the commencement of proceedings in insolvency, an action is pending in the name of the debtor, for the recovery of a debt or other thing which might or ought to pass to the as- signee by the assignment, the assignee must be allowed and admitted to prosecute the action in like manner and with like effect as if it had been originally commenced by him. In suits prosecuted by the assignee, a certified copy of the assignment made to him is conclusive evidence of his au- thority to sue. 668 Assignee, when appointed. Assignment Authority of assignee. $§ 5886-5889 OF PROCEEDINGS IN INSOLVENCY. Tit. XI T. Recording assignments. Powers of assignee. Sec. 5886. The assignee must, within one month after the making of the assignment to him, cause the same to be recorded in every cpunty within this Territory, where any lands owned by the debtor are situated, and the record of such assignment, or a duly certified copy thereof, is conclu- sive evidence thereof in all courts. Sec. 5887. Any assignee may at any time, by writing Resignation of filed in court, resign his appointment,* having first settled assignee. his accounts, and delivered up all the estate to such success- or as the court or Judge may appoint; Provided, That if in the discretion of the court or Judge the circumstances of the case require it, upon good cause being shown, the court or Judge may at any time before such settlement of account and delivery of the estate is completed, revoke the appoint- ment of such assignee, and appoint another in his stead. The liability of the outgoing assignee, or of the sureties on his bond is not in any manner discharged, released or af- fected by such appointment of another in his stead. Sec. 5888. The assignee has power: 1. To sue in his own name, and recover all the estate, debts, and things in action, belonging or due to such debtor, and no set-off or counter claim must be allowed in any such suit for any debt, unless it was owing to such creditor by such debtor at the time of the adjudication of his insolv- ency; 2. To take into his possession all the estate of such debtor, except property exempt by law from execution, whether de- livered to him or afterwards discovered, and all books, vouchers, evidences of indebtedness, and securities belong- ing to the same ; 3. From time to time to sell at public auction all the es- tate, real and personal, vested in him as such assignee, as ordered by the court; 4. On such sales to execute the necessary conveyances and bills of sale; 5. To redeem all valid mortgages and conditional con- tractg, and all valid pledges of personal property, and to sat- isfy any judgments which may be an incumbrance on any property sold by him, or to sell such property subject to such mortgage, contracts, pledges, or judgments; 6. To settle all matters and accounts between such debtor and his debtors, subject to the approval of the court; 7. Under the order of the court appointing him, to com- pound with any person indebted to such debtor, and there- upon to discharge all demands against such person; 8. To have and recover from any person receiving a con- veyance, gift, transfer, payment or assignment, made fraud- ulently or contrary to any provision of this Title, the prop- erty thereby transferred or assigned, or in case a redelivery of the property cannot be had, to recover the value thereof, with damages for the detention. Sec. 5889. The insolvent must, either before or on the day appointed for the meeting of creditors, deliver to the court all the commercial or account books he may have kept, which books must be deposited in the Clerk's office of said court. Said insolvent must also deliver to the court, at the same time, all vouchers, notes, bonds, bills, securities, or other 669 Dolivery of books and papi Tit. XII. OF PROCEEDINGS IN INSOLVENCY. §§ 5890-5896 Embezzlement. Penalties, etc., persons suspected of concealing, etc., property of debtor. Estate to be converted into money. Private sales. evidences of debt, in any manner relating to or having any bearing upon or connection with the property surren- dered by said debtor, and all such papers, or securities must be deposited in the Clerk's office of said court, and the clerk must deliver them, together with the books of the insolvent, to the assignee who may be appointed. Sec. 5890. If any person, before the assignment is made, having notice of the commencement of proceedings in insol- vency, embezzles or disposes of any of the moneys, goods, chattels, or effects of the insolvent, he is chargeable there- with, and liable to an action by the assignee for double the value of the property so embezzled or disposed of, to be re- covered for the benefit of the estate. Sec. 589 1 . The same penalties, forfeitures, and proceed- ings by citation, examination, and commitment apply on behalf of an assignee against persons suspected of having concealed, embezzled, conveyed away, or disposed of any property of the debtor, or of having possession or knowledge of any deeds, conveyances, bonds, contracts, or other writ- ings which relate to any interest of the debtor in any real or personal estate, as provided in the case of the estates of deceased persons. Sec. 5892. The assignee must, as speedily as possible, convert the estate, real and personal, into money. He must keep a regular account of all moneys received by him as assignee, to which every creditor, or other person interested therein may, at all reasonable times, have access. No pri- vate sale of any property of the estate of an insolvent debtor is valid unless made under the order of the court upon a pe- tition in writing, which must set forth the facts showing the sale to be necessary. If it appears that a private sale is for the best interests of the estate, the court or Judge may order it to be made. Sec. 5893. When it appears to the satisfaction of the court or Judge that the estate of the debtor, or any part thereof, is of a perishable nature, or is liable to deteriorate in value, or is disproportionately expensive to keep, . the court or Judge may order the same to be sold in such man- ner as may be deemed most expedient, under the direction of the sheriff or assignee, as the case may be, who must hold the funds received in place of the property sold until the further order of the court. Sec. 5894. Outstanding debts, or other property due or belonging to the estate, which cannot be collected and re- ceived by the assignee without unreasonable or inconvenient delay or expense, may be sold and assigned in like manner as the remainder of the estate. Sec. 5895. Assignees must be allowed all necessary ex- penses in the care, management, and settlement of the es- tate, and are collectively entitled to charge and receive for their services, commissions upon all sums of money coming to their hands and accounted for by them, as follows: For the first thousand dollars, at the rate of ten per cent; for all above that sum and not exceeding ten thousand dollars, at the rate of five per cent; and for all above that sum, at the rate of four per cent. Sec. 5896. At the expiration of three months from the appointment of the assignee in any case, or as much earlier 670 Sale of perishable property. Outstanding debts. Expenses for management of property. Comniissions. Accounts of assignee. §§ 5897-5901 OF PROCEEDINGS IN INSOLVENCY. Tit. XII. as the Judge may direct, the assignee must exhibit to the Judge and to the creditors, and file, just and true accounts of all his receipts and payments, verified by his oath, and a statement of the property outstanding, specifying the cause of its outstanding; also what debts or claims are yet undeter- mined, and stating what sum remains in his possession, and thereupon a dividend must be made, unless for cause the court or Judge otherwise order. Thereafter, further ac- counts, statements, and dividends must be made in like manner as often as occasion requires. Sec. 5897. The court or Judge must at any time, upon the motion of any two or more creditors, require the assignee to file his account, and if he has funds subject to distribu- tion, he must be required to distribute them without delay. Sec. 5898. All creditors whose debts are duly proved and allowed are entitled to share in the property and estate pro rata, without priority or preference whatever, other than as provided in this Title; Provided, That any debt proved by any person liable as bail, surety, guarantor, or otherwise, for the debtor, must not be paid to the person so proving the same until satisfactory evidence is produced of the payment of such debt by such person so liable; and the share to which such debt would be entitled may be paid into court, or otherwise held for the benefit of the party entitled thereto, as the court may direct. Sec. 5899. No dividend already declared, must be dis tgibulafl by reason of debts being subsequently proved, but the creditors proving such debts, are entitled to a dividend equal to those already received by the other creditors, be- fore any further dividend is made to the latter; provided, the failure to prove such claim has not resulted from the creditor's own neglect. Sec. 5900. Should the assignee refuse or neglect to render his accounts, or to pay over a dividend when he has, in the opinion of the court or Judge, sufficient funds for that purpose, the court or Judge must immediately dis- charge such assignee from his trust, and appoint another in his place. The assignee so discharged must forthwith de- liver over to the assignee appointed, all the funds, property, books, vouchers, or securities belonging to the insolvent, without charging or retaining any commission or compen- sation for his personal services. Sec. 5901. Preparatory to the final account and divi- dend, the assignee must submit his account to the court, and file the same, and must at the time of filing, accompany the same with an affidavit, that notice by mail has been given to all creditors who have proved their claims; that he will apply for a settlement of his account, and for a dis- charge from all liability as assignee at a time specified in such notice, which time must be not less than ten or more than twenty days from such filing. At the hearing, the court must audit the account, and any person interested may appear and file exceptions in writing, and contest the same. The court thereupon must settle the account and order a dividend of any portion of the estate remaining un- distributed, and discharge the assignee, subject to compli- ance with the order of the court, from all liability as assignee to any creditor of the insolvent. 671 Orders for accounts and distribution. Creditors to share pro rata. Dividends not to be disturbed for subsequently proved debts. Discharge of assignee. Final account of assignee. Tit. XII. OF PROCEEDINGS IN INSOLVENCY. §§ 5902-5903 Insolvency of partnerships. Applicable to corporations. Sec. 5902. Two or more persons who are partners in business may be adjudged insolvent, either on the petition of such partners, or any one of them, in which case an or- der must be issued in the manner provided by this Title, upon which all the joint stock and property of the partner- ship, and also all the separate estate of each of the partners must be taken, excepting such parts thereof as may be ex- empt by law, and all the creditors of the company, and the separate creditors of each partner, may prove their respect- ive debts; and the assignee must be chosen by the creditors of the co-partnership, and must keep separate accounts of the joint stock or property of the co-partnership, and of the separate estate of each member thereof; and after deduct- ing out of the whole amount received by such assignee the whole amount of the expenses and disbursements, the net proceeds of the joint stock must be appropriated to pay the creditors of the co-partnership, and the net proceeds of the separate estate of each partner must be appropriated to pay his separate creditors; and if there is any balance of the separate estate of any partner after the payment of his sep- arate debts, such balance must be added to the joint stock for the payment of the joint creditors, and if there is any balance of the joint stock after the payment of the joint debts, such balance must be divided and appropriated to and among the separate estate of the several partners ac- cording to their respective rights and interest therein, and as it would have been if the partnership had been dissolved without insolvency; and the sum so appropriated to the sep- arate estate of each partner must be applied to the payment of his separate debts, and the certificate of discharge must be granted or refused to each partner as the same would or ought to be if the proceedings had been by him alone under this Title; and in all other respects the proceedings as to partners must be conducted in the like manner as if they had been commenced and prosecuted by or against one per- son alone. If such co-partners reside in different counties, that court in which the petition is first filed may retain exclusive juris- diction over the case. If the petition be filed by less than all the partners of a co-partnership, those partners who do not join in the petition must be ordered to show cause why they should not be adjudged to be insolvent. Sec. 5903. The provisions of this Title apply to corpor- ations, and upon petition of any officer of any corporation duly authorized by the vote of the board of directors or trus- tees, at a meeting specially called for that purpose, or by the assent in writing of a majority of the directors or trustees, as the case may be, the like proceedings shall be had and taken as are provided in the case of individual debtors. All the provisions of this Title which apply to the debtor, or set forth his duties, examination and liabilities, or prescribe penalties, or relate to fraudulent conveyances, payments and assignments, apply to each and every officer of any corporation in relation to the same matters concerning the corporation. Whenever any corporation is declared insol- vent, all its property and assets must be distributed to the creditors; but no discharge can be granted to any corpor- ation. 672 5904-5911 OF PROCEEDINGS IN INSOLVENCY. Tit. XII. Sec. 5904. All debts due and payable from the debtor at the time of the adjudication of insolvency, and all debts then existing but not payable until a future time, a rebate of interest being made, when no interest is payable by the terms of the contract, may be proved against the estate of the debtor. Sec. 5905. All demands against the debtor for or on account of any goods or chattels wrongfully taken, con- verted, or withheld by him may be proved and allowed as debts, to the amount of the value of the property so with- held, from the time of the conversion. Sec. 5906. If the debtor is bound as indorser, surety, bail or guarantor, upon any bill, bond, note, or other spe- cialty or contract, or for any debt of another person, and his liability has not become absolute until the adjudication of insolvency, the creditor may prove the same after such liability becomes fixed, and before the final dividend is declared. Sec. 5907. In all cases of contingent debts, and con- tingent liabilities contracted by the debtor and not herein otherwise provided for, the creditor may make claim therefor and have his claim allowed, with the right to share in the dividends if the contingency happens before the order for the final dividend, or he may, at any time, apply to the court or Judge to have the present value of the debtor liability ascertained and liquidated, which must be done in such manner as the court or Judge may order, and must be allowed to prove for the amount so ascertained. Sec. 5908. Any person liable as bail, surety, orguaran- tor, or otherwise, for the debtor who has paid the debt, or any part thereof, in discharge of the whole, is entitled to prove such debt, or to stand in the place of the creditor, if he has proved the same, although such payments are made after the proceedings in insolvency were commenced; and any person so liable for the debtor, and who has not paid the whole of said debt, but is still liable for the same, or any part thereof, may, if the creditor fails or omits to prove such debt, prove the same in the name of the creditor. Sec. 5909. Where the debtor is liable to pay rent, or other debt falling due at fixed and stated periods, the creditor may prove, for a portionate part thereof up to the time of the insolvency, as if the same became due from day to day, and not at such fixed and stated periods. Sec. 5910. In all cases of mutual debts and mutual credits between the parties, the account between them must be stated, and one debt set off against the other, and the balance only allowed and paid. But no set-off or counter- claim must be allowed of a claim in its nature not provable against the estate; or in favor of any debtor to the in- solvent of a claim purchased by or transferred to him after the filing of the petition, for the purpose of making such set-off or counterclaim. Sec. 5911. When a creditor has a mortgage or pledge of real or personal property of the debtor, or a lien thereon, for securing the payment of a debt owing to him from the debtor, he must be admitted as a creditor only for the bal- ance of the debt, after deducting the value of such prop- erty, to be ascertained by agreement between him and the 43 673 All debts may be proved against debtor. Proof of demands for tortious acts. Proof of demands against debtor, or indorser, surety, etc. Contingen liabilities. Person liable for debtor may prove debt, etc. Rent and installment debts. Mutual credits, set-offs and counter claims. Mortgages and pledges agai'ist debtor. Tit. XII. OF PROCEEDINGS IN INSOLVENCY. §§ 5912-5915 Creditor proving claims to waive suits and rights of action . Examination of debtor. assignee, or by a sale thereof, to be made in such manner as the court or Judge may direct; or the creditor may release or convey his claim to the assignee, upon such property, and be admitted to prove his whole debt. If the value of the property exceeds the sum for which it is so held as security, the assignee may release to the creditor the debtor's right of redemption thereon on receiving such excess; or he may sell the property, subject to the claim of the creditor thereon, and in either case the assignee and creditor respectively must execute all deeds and writings necessary or proper to con- summate the transaction. If the property is not sold or re- leased, and delivered up, the creditor must not be allowed to prove any part of his debt. Sec. 5912. No creditor proving his debt or claim must be allowed to maintain any suit at law or in equity therefor against the debtor, but is deemed to have waived all right of action and suit against him, and all proceedings already commenced, are deemed to be discharged and surrendered thereby; Provided, That no valid lien existing in good faith thereunder is thereby affected; and, Further provided, That a creditor proving his debt or claim is not held to have waived his right of action or suit against the debtor where a discharge is refused, or the proceedings are determined without a discharge. Sec. 5913. The court or Judge may, upon the applica- tion of the assignee, or of any creditor of the debtor or with- out any application before or after adjudication in insolv- ency, examine upon oath the debtor in relation to his prop- erty and his estate, and any person tendering or making proof of claims, may subpoena witnesses to give evidence relating to such matters. All examinations of witnesses must be had and depositions must be taken in accordance with and in the same manner as is provided by the Code of Civil Procedure. Sec. 5914. At any time after the expiration of three months from the adjudication of insolvency, the debtor may apply to the court for a discharge from his debts, and the court must thereupon order notice to be given to all credit- ors who have proved their debts, to appear on a day appoint- ed for that purpose and show cause why a discharge should not be granted to the debtor; said notice must be given by mail, and by publication at least once a week, for four weeks, in a newspaper published in the county, or if there be none, in a newspaper published nearest such county; Provided, That if no debts have been proven, such notice is not re- quired. Sec. 5915. No discharge.must be granted, or if granted is valid, if the debtor has sworn falsely in his affidavit an- nexed to his petition, schedule, or inventory, or upon any examination in the course of the proceedings in insolvency, in relation to any material fact concerning his estate, or his debts, or to any other material fact; or if he has concealed any part of his estate or effects, or any books or writings relating thereto; or if he has been guilty of fraud or willful neglect in the care, custody, or delivery to the assignee of the property belonging to him at the time of the presentation of his petition and inventory, excepting such property as he is permitted to retain under the provisions of this Title, or 674 Petition for discharge. Notice to , creditors. Discharge, when not granted. 3§ 5916-5917 OF PROCEEDINGS IN INSOLVENCY. Tit. XII. if he has caused or permitted any loss or destruction thereof ; or if, within one month before the commencement of such proceedings, he has procured his lands, goods, money, or chattels to be attached, or seized, on execution; or if he has destroyed, mutilated, altered, or falsified any of his books, documents, papers, writings, or securities, or has made or been privy to the making of any false or fraudulent entry in any book of account or other document with intent to defraud his creditors; or if he has made any fraudulent gift, transfer, conveyance, or assignment of any part of his prop- erty, or has admitted a false or fictitious debt against his estate, or if, having knowledge that any person has proven such false or fictitious debt, he has not disclosed the same to his assignee within one month after such knowledge; or if, being a merchant or tradesman, he has not, subsequently to the passage of this Title, kept proper books of account; or if he or any other person on his account, or in his behalf, has influenced the action of any creditor at any stage of the proceedings, by any pecuniary consideration or obligation; or if he has, in contemplation of becoming insolvent, made any pledge, transfer, assignment, or conveyance of any part of his property, directly or indirectly, absolutely or condi- tionally, for the purpose of preventing the property from coming into the hands of the assignee, or of being distrib- uted under this title in satisfaction of his debts; or if he has been convicted of any misdemeanor under this Title, or has been guilty of fraud contrary to the true intent of this Title, or has received the benefits of this or any other act of insol- vency or bankruptcy within three years next preceding his application for discharge, and before any discharge is granted, the debtor must take and subscribe an oath to the effect, that he has not done, suffered, or been privy to any act, matter or thing specified in this Title, as ground for withdrawing such discharge or as invalidating such dis- charge if granted. Sec. 5916. Any creditor opposing the discharge of a debtor, must file specifications, in writing, of the grounds of his opposition, and after the debtor has filed and served his answer thereto, which pleadings must be verified, the court must try the issue or issues raised, with or without a jury, according to the practice provided by law in civil cases. Sec. 591 7. If it appears to the court that the debtor has in all things conformed to his duty under this Title, and that he is entitled, under the provisions thereof, to receive a discharge, the court must grant him a discharge from all his debts, except as hereinafter provided, and must give him a certificate thereof, under the seal of the court, in sub- stance, as follows: In the District Court of the Judicial District of Idaho Territory, in and for County. Whereas, has been duly adjudged an insolvent under the insolvent laws of this Territory, and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by the court that said be forever discharged from all debts and claims, which by said insolvent laws, are made provable against his estate, and which existed on the day of , on which the petition for adjudication was filed by him, excepting such debts, if any, as are, by said insolvent 675 ' Opposition to discharge. Certificate o£ discharge. Tit. XII OF PROCEEDINGS IN INSOLVENCY. 5§ 5918-59 25 laws, excepted from the operation of a discharge in in- solvency. Given under my hand, and the seal of the court, this — day of , A. D. 18 — . Attest, , Clerk. (Seal.) ; Judge. Sec. 5918. No debt created by fraud or embezzle- Frauduleut debts not discharged. Effect arid operation of discharge. Refusal of discharge, effect of. Death of insolvent, pending proceedings. Statute of limitations, when not to run. Representation by attorney . Homesteads and exemptions. Commencement of proceedings. ment of the debtor, or by his defalcations as a public officer, or while acting in a judiciary character, and no indebted- ness or liability for funds, deposits, or goods received as a banker, broker, commission merchant or factor, can be dis- charged under this Title, but the debt may be proved and the dividend thereon is a payment on account of said debt; and no discharge granted under this Title releases, dis- charges or affects any person liable for the same debt for or with the debtor, either as partner, joint contractor, indorser, surety or otherwise. Sec. 5919. A discharge duly granted under this Title, with the exceptions aforesaid, releases the debtor from all claims, debts, liabilities and demands set forth in his sched- ule, or which were or might have been proved against his estate in insolvency, and may be pleaded by a simple aver- ment that on the day of its date such discharge was granted to him, setting forth the same in full, and the same is a complete bar to all suits brought on any such debts, claims, liabilities or demands, and the certificate is prima facie evi- dence in favor of such fact, and of the regularity of such discharge; Provided, however, That any creditor of said debtor whose debt was proved, or provable, against the es- tate in insolvency, who sees fit to contest the validity of such discharge on the ground that it was frudulently ob- tained, and who has discovered the facts constituting the fraud subsequent to the discharge, may, at any time within two years after the date thereof, apply to the court which granted it, to set aside and annul the same; or if the same is pleaded, the effect thereof may be avoided collaterally upon any such grounds. Sec. 5920. The refusal of a discharge to the debtor does not affect the administration and distribution of his estate under the provisions of this Title. Sec. 5921. If any debtor dies after the order of adjudi- cation, the proceedings may be continued and concluded in like manner and with like validity and effect as if he had lived. Sec. 5922. Pending proceedings by any person, co-part- nership or corporation, no statute of limitations runs against a claim which in its nature is provable against the estate of the debtor. Sec. 5923. Any creditor at any stage in the proceedings, may be represented by his attorney or duly authorized agent. Sec. 5924. It is the duty of the court or Judge having jurisdiction of the proceedings, to exempt and set apart for the use and benefit of said insolvent, such real and personal property as is by law exempt from execution. Sec. 5925. The filing of the petition upon which an or- der of adjudication in insolvency may be made, shall be deemed to be the commencement of proceedings in insolv- ency under this Title. 676 §S 5926-5932 OF PROCEEDINGS IN INSOLVENCY. Tit XII. Sec. 5926. Words used in this Title in the singular, in- clude the plural, and in the plural, the singular, and the word "debtor" includes partnerships and corporations. Sec. 5927. A receiver maybe appointed by the court or Judge in which an insolvent proceeding is pending before the election of an assignee: 1. Upon the application of creditors, where it is shown that the property, or any portion thereof, is in danger of be- ing lost, removed or materially injured; 2. In all other cases where receivers are appointed by the usage of Courts of Equity. And thereupon the appoint- ment, oath, undertaking and powers of such receiver are in all respects regulated by the general laws applicable to receivers. Sec. 5928. All sections of the Code of Civil Procedure relating to contempts are hereby made applicable to all pro- ceedings under this Title. An appeal is allowed to the Supreme Court from any order adjudging any person guilty of contempt of court. Sec. 5929. When an attachment has been made and is not dissolved before the commencement of proceedings in insolvency, or is dissolved by an undertaking given by the defendant, if the claim upon which the attachment suit was commenced is proved against the estate of the debtor, the plaintiff may prove the legal costs and disbursements of the suit, and of the keeping of the property, and the amount there- of is a preferred debt. In all contested matters in insolv- ency the court may, in its discretion, award costs to either party, to be paid by the other, or to either or both parties, to be paid out of the estate, as justice and equity may re- quire. In awarding costs the court may issue execution therefor. Sec. 5930. The court or Judge may, upon the applica- tion of the debtor, dismiss the petition and discontinue the proceedings at any time before the appointment of assignee. After the appointment of assignee no dismissal must be made without the consent of all parties interested in or af- fected thereby. Sec. 5931. An appeal may be taken to the Supreme Court in the following cases: 1. Allowing or rejecting a creditor's claim, in whole or in part; 2. Overruling a motion for a new trial; 3. Settling an account of an assignee; 4. Against or in favor of setting apart homestead or other property claimed as exempt from execution; 5. Granting or refusing a discharge to the debtor. The notice, undertaking, and procedure on appeal must conform to the general laws of this Territory, regulating appeals in civil cases, except that when the assignee has given an offi- cial undertaking and appeals from a judgment or order in insolvency his official undertaking stands in the place of an undertaking on appeal, and the sureties therein are liable on such undertaking. Sec. 5932. No assignment of any insolvent debtor, otherwise than -as provided in this Title, is legal or binding on creditors. 677 Certain words defined. Receivers Contempts. Attachment liens, costb in contested matters . Dismissals and discontinuances. Appeals. Other assign- ments void. Tit. 1. Ch. I-II. JUDICIAL KNOWLEDGE.- WITNESSES. }§ 5950-5956 PART IV.— OF EVIDENCE. TITLE I. OF THE KINDS AND DEGREES OF EVIDENCE. \W .V Certain facts assumed to be true. Specification of. Questions of law addressed to the court. New section. CHAPTER I. Judicial Knowledge. Section 5950. Certain facts of general notoriety assumed to be true. Specification of such facts. Section 5951. Questions of law addressed to the court. Section 5950. Courts take judicial notice of the follow- ing facts: 1. The true signification of all English words and phrases, and of legal expressions ; 2. Whatever is established by law; 3. Public and private official acts of the legislative, ex- ecutive and judicial departments of this Territory and of the United States; 4. The seals of all the courts of this Territory and of the - United States; 5. The accession to office and the official signatures and seals of office of the principal officers of government in the legislative, executive and judicial departments of this Ter- ritory, and of the United States; 6. The existence, title, national flag, and seal of every state or sovereign recognized by the executive' power of the United States; 7. The seals of courts of admiralty and maritime juris- diction, and of notaries public; 8. The laws of nature, the measure of time, and the geographical divisions and political history of the world. In all tnese cases the court may resort for its aid to appropri- ate books or documents of reference. Sec. 5951. All questions of law arising upon the trial, including the admissibility of testimony, the facts pre- liminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court when submitted and before the trial proceeds, and all disoussions of law are to be addressed to the court. "Whenever the knowledge of the court is by this chapter made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it. CHAPTER II. Witnesses. Section 5956. All persons capable of perception and communication may be wit- nesses. 5957. Persons who cannot testify. Section 5958. Persons in certain relations to part- ies prohibited. 5959. Judge or juror may be witness. 5960. When an interpreter to be sworn. \iW \< ofTe°rSeptioln!ble Section 5956. All persons, without exception, otherwise may be than is specified in the next two sections, who, having or- witnes8oa. r 678 §§ 5957-5959 WITNESSES. Tit.L Ch.IL gans of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although in every case the credibility of the witness may be drawn in question, by the manner in which he testifies, by the char- acter of his testimony, or by evidence affecting his char- acter for truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive jud- ges of his credibility. Sec. 5957. The following persons cannot be witnesses: 1. Those who are of unsound mind at the time of their production for examination; 2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly; 3. Parties or assignors of parties to an action or proceed- ing, or persons in whose behalf an action or proceeding is prosecuted, against an executor or an administrator, upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. Sec. 5958. There are particular relations 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. A husband cannot be examined for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterwards, be without the consent of the other, exam- ined as to any communication made by one to the other dur- ing the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a crim- inal action or proceeding for a crime committed by violence of one against the person of the other; 2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of profes- sional employment; 3. 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 by the church to which he belongs; 4. A physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any infor- mation acquired in attending the patient which was neces- sary to enable him to prescribe or act for the patient; 5. A public officer cannot be examined as to communica- tions made to him in official confidence, when the public in- terests would suffer by the disclosure. Sec. 5959. 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 to order the trial to be postponed or suspended, and to take place before another Judge or jury. 679 Persons who cannot testify. /ff-o Persons in crtain relations to parties prohibited. /ff/ Judge or jurojr may be witness. /rta Tit. I. Ch.IIL PUBLIC WRITINGS. 5§ 5960-5970- \* When an interpreter to be sworn. Sec. 5960. 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 summoned by any court or Judge to appear before such court or Judge to act as interpreter in any action or proceeding. The summons must be served and returned in like manner as a subpoena. Any person so summoned who fails to attend at the time and place named in the sum- mons, is guilty of a contempt. CHAPTER III. Public Writings. Mv \W W \WV Citizens en- titled to inspect public writing. Public officers must give copies. Amended. Statutes defined. Kinds of public writings . \C\bO Bonks contain- ing laws pre- sumed to be correct. W\ Certified copy of law, or public writing. Section 5965. Every citizen entitled to inspect and copy public writings. Public officers bound to give copies. Public and private statutes. Four kinds of public writings. Books containing laws presumed to be correct. Public seal autbenticates a law or document. Other evidence of laws of other States and Territories. Recitals in statutes, how far evi- dence. Judicial record defined. Record how authenticated as evi- dence. 5966. 5967. 5968. 5969. 5970. 5971. 5972. 5973. 5974. Section 5975. Record of a foreign country, how authenticated. 5976. Oral evidence of a foreign record. 5977. Manner of proving other official documents. 5978. Public record of private writing evidence 5979. Entries in official books primary evidence. 5980. Justice's judgment in other States, how proved. 5981. Same. 5962. Contents of other official certificates. 5983. Certificates of purchase primary evidence of ownership. 5984. Entries made by officers or Boards primary evidence. Section 5965. Every citizen has a right to inspect and take a copy of any public writing of this Territory, except as otherwise expressly provided by statute. Sec. 5966. Every public officer having the custody of a public writing, which a citizen has a right to inspect, is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor, and such copy is admiss- ible as evidence in like cases and with like effect as the original writing. Sec. 5967. Statutes are public or private. A private statute is one which concerns only certain designated indi- viduals, and affects only their private rights. All other statutes are public, in which are included statutes creating or affecting corporations. Sec. 5968. Public writings are divided into four classes: 1. Laws; 2. Judicial records; 3. Other official documents; 4. Public records kept in this Territory, of private writ- ings. Sec. 5969. Books printed or published under the au- thority of a State, Territory, or foreign country, and pur- porting to contain the statutes, code, or other written law of such State, Territory, or country, or proved to be com- monly admitted in the tribunals of such State, Territory, or country as evidence of the written law thereof, are admiss- ible in this Territory as evidence of such law. Sec. 5970. A copy of the written law, or other public writing of any State, Territory, or country, attested by the certificate of the officer having charge of the original, un- der the public seal of the State, Territory, or country, is ad- missible as evidence of such law or writing. 680 !§ 5971-5977 PUBLIC WETTINGS. Tit. I. Ch.III. Sec. 5971. The oral testimony of witnesses skilled there- in, is admissible as evidence of the unwritten law of a State, other Territory, or foreign country, as are also printed and published books of reports of decisions of the courts of such State, Territory, or country, commonly admitted in such courts. Sec. 5972. The recitals in a public statute are conclu- sive evidence of the facts recited for the purpose of carrying it into effect, but no further. The recitals in a private statute are conclusive evidence between parties who claim under its provisions, but no further. Sec. 5973. A judicial record is the record or official entry of the proceedings in a Court of Justice, or of the official act of a judicial officer, in an action or special pro- ceeding. Sec. 5974. A judicial record of this Territory, or of the United States, may be proved by the production of the original, or by a copy thereof, certified by the clerk or other person having the legal custody thereof. That of a State or other Territory may be proved by the attestation of the clerk and the seal of the court annexed, if there be a clerk and seal, together with a certificate of the Chief Judge or presiding magistrate, that the attestation is in due form. Sec. 5975. A judicial record of a foreign country may be proved by the attestation of the clerk, with the seal of the court annexed, if there be a clerk or seal, or of the legal keeper of the record, with the seal of his office an- nexed, if there be a seal, together with a certificate of the Chief Judge, or presiding magistrate, that the person making the attestation is the clerk of the court or the legal keeper of the record, and, in either case, that the signature of such person is genuine, and that the attestation is in due form. The signature of the Chief Judge, or presiding magistrate, must be authenticated by the certificate of the Minister or Embassador, or a Consul, Vice-Consul, or Con- sular Agent of the United States in such foreign country. Sec. 5976. A copy of the judicial record of a foreign country is also admissible in evidence, upon proof: 1. That the copy offered has been compared by the wit- ness with the original and is an exact transcript of the whole of it; 2. That such original was in the custody of the Clerk of the Court, or other legal keeper of the same; and, 3. That the copy is duly attested by a seal which is proved to be the seal of the court where the record remains, if it be the record of a court, or if there be no such seal, or if it be not a record of a court, by the signature of the legal keeper of the original. Sec. 5977. Other official documents may be proved as follows : 1. Acts of the Executive of this Territory, by the records; and of the United States, by the records of the Departments of the United States, certified by the heads of those depart- ments respectively. They may also be proved by public documents, printed by the order of the Legislature or Con- gress, or either house thereof; 2. The proceedings of the Legislature of this Territory, or of Congress, by the journals of those bodies respectively, 681 Other evidence / if C V^ of laws of other States and Territories. Recitals in f Q f\ ~X statutes, how far evidence. Judicial record denned. f^O^ Record, how / 9 f) J^ authenticated as evidence. Record of foreign country, how authenticated. /fo(o Oral evidenc _> of a foreign record. /tfO-} Manner of proving other official documents. ffff Titl. Ch.IIL PUBLIC WRITINGS. % 5978-5981 \\W V\ "\ vy Same. or either house thereof, or by published statutes or resolu- tions, or by copies certified by the clerk, or printed by their order; 3. The acts of the Executive, or the proceedings • of the Legislature of a State or other Territory in the same man- ner; 4. The acts of the Executive, or the proceedings of the Legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof, is some public act of the Executive of the United States; 5. Acts of a municipal corporation of this Territory or of a Board or department thereof, by a copy, certified by the legal keeper thereof, or by a printed book, published by the authority of such corporation; 6. Documents of any other class in this Territory, by the original, or by a copy, certified by the legal keeper thereof; 7. Documents of any other class in a State, or other Territory, by the original, or by a copy, certified by the legal keeper thereof, together with the certificate of the Secretary of State, Judge of the Supreme, District, Superior, or County Court, or Mayor of a city of such State or Terri- tory, that the copy is duly certified by the officer having the legal custody of the original; 8. Documents of any other class in a foreign country, by the original, or by a copy, certified by the legal keeper thereof, with a certificate under seal, of the country or sovereign, that the document is a valid and subsisting docu- ment of such country, and that the copy is duly certified by the officer having the legal custody of the original; 9. Documents in the departments of the United States Government, by the certificate of the legal custodian thereof. Sec. 5978. A public record of a private writing may be proved by the original record, or by a copy thereof, cer- tified by the legal keeper of the record. Sec. 5979. Entries in public or other official books or records, made in the performance of his duty by a public officer of this Territory, or by another person in the perform- ance of a duty specially enjoined by law, are prima facie evidence of the facts stated therein. Sec. 5980. A transcript from the record or docket of a Justice of the Peace of a State or other Territory, of a judgment rendered by him, of the proceedings in the action before the judgment, of the execution and return, if any, subscribed by the Justice and verified in the manner pre- scribed in the next section, is admissible evidence of the facts stated therein. Sec. 5981. There must be attached to the transcript a certificate of the Justice that the transcript is in all respects correct, and that he had jurisdiction of the action, and also a further certificate of the clerk or prothonotary of the county in which the Justice resided at the time of render- ing the judgment, under the seal of the county, or the seal of the Court of Common Pleas, or County Court, or court of general jurisdiction thereof, certifying that the person sub- scribing the transcript was, at the date of the judgment, a Justice of the Peace in the county, and that the signature is 682 ' Public record of private writing evidence. Entries in official books prima facie evidence. Justice's judgment, how- proved. §§ 5982-5991 PRIVATE WRITINGS. Tit. I. Ch. IV. Official certificates, contents of. genuine. Such judgment, proceedings, and jurisdiction may also be proved by the Justice himself, on the produc- tion of his docket, or by a copy of the judgment, and his oral examination as a witness. Sec. 5982. Whenever a copy of a writing is certified for the purpose of evidence, the certificate musrt 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 certifi- cate must be under the official seal of the certifying officer, if there be any, or if he be a Clerk of a Court having a seal, under the seal of such court. Sec. 5983. A certificate of purchase, or of location, of any lands in this Territory, issued or made in pursuance of any law of the United States, is primary evidence that the holder or assignee of such certificate is the owner of the land described therein; but this evidence may be overcome by proof that, at the time of the location, or time of filing a pre-emption claim on which the certificate may have been issued, the land was in the adverse possession of the adverse party, or those under whom he claims, or that the adverse party is holding the land for mining purposes. Sec. 5984. 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. /(ft 3 Certificates of purchase evidence of ownership. fpid^ Entries made by officers, etc, prima facie evidence. . /?7~7 CHAPTER IV. Private Writings. Section 5989. Manner of making seal. 5990 . Books, maps, etc. , how far evidence. 5991 . When in possession of adverse par- ty, notice to be given. 5992. Writings called for and inspected may be withheld. 5993. Writing, how may be proved. 5994. Other witnesses may also testify. Section 5995. When evidence of execution not necessary. Entries of decedents evidence in specified cases. Private writings acknowledged and certified. Instrument acknowledged. Contents of writing, how proved. 5996. 5997. 5998. 5999. Section 5989. A public seal in this Territory is a stamp or impression made by a public officer with an instrument provided by law to attest the execution of an official or public document, upon the paper or upon any substance at- tached to the paper, which is capable of receiving a visible impression. A private seal may be made in the same man- ner by any instrument, or it may be made by the scroll of a pen, or by writing the word "seal" against the signature of the writer. A scroll or other sign made in a State or other Territory or foreign country, and there recognized as a seal, must be so regarded in this Territory. Sec. 5990. Historical works, books of science or art, and published maps or charts, when made by persons in- different between the parties, are prima facie evidence of facts of general notoriety and interest. Sec. 5991. If the writing be m the custody of the ad- verse party, he must first have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in case of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by the adverse party. 683 Public and private seals, how made. (c, Scroll or sign. Books, maps, etc., how far evidence. When in possession of adverse party, notice to be given. /?: 93? Tlt.L Ch.IV. PBIVATE WRITINGS. )§ 5992-599$ 992. Though a writing called for by one party is produced by the other, and is thereupon inspected by the party calling for it, he is not obliged to produce it as evi- dence in the case. Sec. 5993. Any writing may be proved either: 1. By any one who saw the writing executed; or, 2. By evidence of the genuineness of the handwriting of the maker; or, 3. By a subscribing witness. Sec. 5994. If the subscribing witness denies or does not recollect the execution of the writing, its execution may still be proved by other evidence. Sec. 5995. Where, however, evidence is given that the party against whom the writing is offered, has at any time admitted its execution, no other evidence of the execution need be given, when the instrument is one produced from the custody of the adverse party, and has been acted upon by him as genuine. Sec. 5996. The entries and other writings of a dece- dent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as prima facie evidence of the facts stated therein, in the fol- lowing cases: 1. When the entry was made against the interest of the person making it; 2. When it was made in a professional capacity, and in the ordinary course of professional conduct; 3. When it was made in the performance of a duty spe- cially enjoined by law. Sec. 5997. Every private writing, except last wills and testaments, may be acknowledged or proved and certi- fied in the manner provided for the acknowledgment or proof of conveyances of real property, and the certificate of such acknowledgment or proof is prima facie evidence of the execution of the writing, in the same manner as if it were a conveyance of real property. Sec. 5998. Every instrument conveying or affecting real property, acknowledged or proved, and certified, as pro- vided by law, may, together with the certificate of acknowl- edgment or proof, be read in evidence, in an action or pro- ceeding, without further proof, and a certified copy of the record, of such conveyance or instrument thus acknowledged or proved, may also be read in evidence, with the like effect as the original, on proof, by affidavit, or otherwise, that the original is not in the possession or under the control of the party producing the certified copy. Sec. 5999. There can be no evidence of the contents of a writing, other than the writing itself, except in the follow- ing cases : 1. When the original has been lost or destroyed; in which case proof of the loss or destruction must first be made; 2. When the original is in the possession of the party against whom the evidence is offered, and he fails to pro- duce it after reasonable notice; 3. When the original is a record or other document in the custody of a public officer; 684 §§ 6005-6009 INDISPENSABLE EVIDENCE. Tit. I. Ch. V. 4. copy When the original has been recorded, and a certified of the record is made evidence by this Code or other statutes; 5. When the original consists of numerous accounts or other documents, which cannot be examined in court with- out great loss of time, and the evidence sought from them is only the general result of the whole. In the cases mentioned in subdivision three and four, a copy of the original, or of the record, must be produced; in those mentioned in sub- divisions one and two, either a copy or oral evidence of the contents. CHAPTER V. Indispensable Evidence. Section 6005. To prove perjury and treason. 6006. Will to be in writing. 6007. Transfer of real property to be in writing. 6003. Last section not to extend to cer- tain cases. Section 6009. Agreement not in writing, when in- valid. 6010. When valid. 6011 . Representation of credit by writing. Section 6005. Perjury and treason must be proved by testimony of more than one witness. Treason by the testi- mony of two witnesses to the same overt act; and per jury by the testimony of two witnesses, or one witness and corrob- orating circumstances. Sec. 6006. A last will and testament, except a nuncu- pative will, is invalid, unless it be in writing and executed with such formalities as are required by law. When, there- fore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents be given. Sec. 6007. No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner re- lating thereto, can be created, granted, assigned, surren- dered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering or de- claring the same, or by his lawful agent thereunto author- ized by writing. Sec. 6008. The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to. compel the specific performance of an agreement, in case of part performance thereof. Sec. 6009. In the following cases the argument is in- valid, unless the same or some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents : 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 the next section; 685 Perjury and f y (pX treason to prove. Will to be in writing. I^W Transfer of t G 1 f real property to 111' be in writing. Last section to extend to certain cases. not f?7v Agreement not in writing, wben invalid. ff?3 Tit I. Ch.7. INDISPENSABLE EVIDENCE. S§ 6010-6011 Engagement to answer for obligation of another, when deemed original. (I VW 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 two hundred dollars, .unless the buyer accept and receive part of such goods and chat- tels, 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 auc- tioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price and the names of the purchaser and person on whose account the sale is made, is a sufficient 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 charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged. Sec. 6010. 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 writing: 1. Where the promise is made by one who has received property of another upon an undertaking to apply it pur- suant to such promise; or by one who has received a dis- charge from an obligation in whole or in part, in considera- tion of such promise; 2. Where the creditor parts with value, or enters into an obligation, in consideration of the obligations in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the princi- pal debtor, and the person in whose behalf it is made, his surety; 3. 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 considera- tion that the party receiving it releases the property of another from a levy, or his person from imprisonment un- der an execution on a judgment obtained upon the antece- dent obligation; or upon a consideration beneficial to the promisor, whether moving from either party to the antece- dent obligation, or from another person; 4. Where a factor undertakes, for a commission, to sell merchandise and guarantee 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 instru- ment. Sec. 60 1 1 . No evidence is admissible to charge a person upon a representation as to the credit of a third person, un- less such representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged. Representation of credit by writing. 68S 6030-6036 BY WHOM TO BE PKODUCED.-PRODUCTION. Tit.II. Ch.I-U TITLE II. OF THE PRODUCTION OF EVIDENCE. CHAPTER I. By Whom to be Produced. Section 6030. Writing altered, who to explain. Section 6030. The party producing a writing as genu- ine which has been altered, or appears to have been altered after its execution in a part material to the question in dis- pute, must account for the appearance or alteration. He may show that the alteration was made by another with- out his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that he may give the writing in evidence, but not otherwise. CHAPTER II. Means of Production. Writing altered, who to explain. /? 0-0!^ If made in a foreign country, before whom taken . Certificate of clerk. where filed. gEC> 6054. If such affidavit be made in an action or special proceeding pending in a court, it may be filed with the court or a clerk thereof. If not so made, it may1 be filed with the Recorder of the county where the newspaper is printed. In either case the original affidavit, or a copy thereof, certified by the Judge of the court or officer having it in custody, is prima facie evidence of the facts stated therein. Sec. 6055. An affidavit to be used before any court, Judge or officer of this Territory, may be taken before any Judge or Clerk of any Court, or any Justice of the Peace, or Notary Public in this Territory. Sec. 6056. An affidavit taken in a State or other Terri- tory of the United States, to be used in this Territory, may be taken before a Commissioner appointed by the Governor of this Territory to take affidavits and depositions in such State or Territory, or before any Notary Public in such State or Territory, or before any Judge or Clerk of a Court of Rec- ord having a seal. Sec. 6057. An affidavit taken in a foreign country to be used in this Territory, may be taken before an embassador, minister, consul, vice-consul or consular agent of the Unit- ed States, or before any Judge of a Court of Record having a seal, in such foreign country. Sec. 6058. When an affidavit is taken before a Judge or a court in a State or other Territory, or in a foreign coun- try, the genuineness of the signature of the Judge, the ex- istence of the court, and the fact that such Judge is a mem- ber thereof, must be certified by the Clerk of the Court, un- der the seal thereof. Sec. 6059. The testimony of a witness out of the Terri- jitnesstfutof tory may be taken by deposition, in an action, at any time taken1!01 y*7^/after the service of the summons, or the appearance of the defendant; and in a special proceeding, at any time after a question of fact has arisen therein. Sec. 6060. The testimony of any person in this Terri- tory, competent to testify as a witness, may be taken in a civil action, at any time after the service of summons or the appearance of the defendant; and in a special proceeding, after a question of fact has arisen therein; but such deposi- tion shall be used only when it shall appear at the time the same is offered for use: 1. That the witness reside out of the county in which the action or proceeding is pending, or is absent therefrom; or, 2. That the witness is unable to attend court on account of age, infirmity, imprisonment, or death. [Act Feb. 10, 1887.] Sec. 6061. Where a party intends to make or oppose a motion in a court of record, in an action pending or about to be commenced, and it is necessary for him to have the affi- davit or deposition of a person not a part}r to use upon the motion, the court or a Judge authorized to make an order, in the cause, may, in its or his discretion, make an order, appointing a referee to take the depositions of that person. The order must be founded upon proof, by affidavit, that the applicant intends to make the motion, or that notice of a motion' has been given, which the applicant intends to op- pose. The affidavit must specify the nature of the motion, 69(T ao^ Testimony of witness out of Testimony taken in thisSTerritory. 14 sesV (\ V. SL4^jL.<-*n\ Deposition to be used on motion. New section. §§6062-6067 TAKING THE TESTIMONY OF WITNESSES. Tit. II. Clt. III. and must show that the affidavit or deposition is necessary thereon, and that such person has refused to make an affida- vit of the facts which the applicant verily believes are with- in his knowledge. The order may be made upon or without notice. The person to be examined may be subpoenaed, and compelled to attend, as upon the trial. The deposition when taken, must be delivered to the attorney for the party who procured the order, unless the order provides for a dif- ferent disposition thereof. Sec. 6062. The deposition of a witness out of this Territo- Testimony of a q% ties agree to that mode, the examination may be without written interrogatories. Sec. 6064. The commission must authorize the commis- Duties, etc., of 7 ->-2- c sioner to administer an oath to the witness, and to take his commissioner. deposition in answer to the interrogatories, or, when the ex- 'f&Lhs.ovlecJL* amination is to be without interrogatories, in respect to the J^. 4 d t v^ J^^y^^j question in dispute, and to certify the deposition to the court, , ^ ^ h ^ f^ ,3 ^ in a sealed envelope, directed to the clerk or other person ' f ' designated or agreed upon, and forwarded to him by mail or other usual channel of conveyance. Sec. 6065. A trial or other proceeding must not be post- Trial, when poned by reason of a commission not returned, except upon f^l^ldclexci ^u^^^ evidence, satisfactory to the court, that the testimony of the fc- ' /«/>*/ j-z— witness is necessary, and that proper diligence has been * ' used to obtain it. Sec. 6066. The deposition mentioned in this chapter Deposition, by may be used by either party on the trial or other proceeding, yp^^fcDhitJL^^. ^'^^ against any other party giving or receiving the notice, sub- jg^ - /£f3 fo^y-n /«?£ ject to all just exceptions. Sec. 6067. Either party may have the deposition taken Depositions mu> of a witness in this Territory, in either of the cases men- be. taken before tioned in section 6060 before a Judge or officer authorized to a 3U ge' e c' administer oaths, on serving upon the adverse party previous (Ty . sodeU ^a^^ notice of the time and place of examination, together with 'J—/ a copy of an affidavit, showing that the case is within that jCo<+i.4J /f~f& r section. Such notice must be at least five days, adding also / gj* one day for every twenty -five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless for a cause shown, a Judge, by order, prescribes a shorter time. When a shorter time 691 Tit. II. Ch. III. TAKING THE TESTIMONY OF WITNESSES. §§6068-6073 Maimer of taking epositions. May be used by either party on trial. 0-O w /^O^S" >v °) «v c/O •is prescribed, a copy of the order must be served with the notice. Sec. 6068. Either party may attend the examination and put such questions, direct and cross, as may be proper. The deposition, when completed, must be carefully read to the witness and corrected by him in any particular, if de- sired: it must then be subscribed by the witness, certified by the Judge or officer taking the deposition, inclosed in an envelope or wrapper, sealed, and directed to the Clerk of the Court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the Judge or officer to the Clerk or such person, or tran- smitted through the mail or by some safe private opportunity; and thereupon such deposition may be used by either party upon the trial or other proceeding against any party giving or receiving the notice, subject to all legal exceptions; but if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken under subdivisions 2, 3 and 4, of Section 6060, proof must be made at the trial that the witness con- tinues absent or infirm, or is dead. The deposition thus taken may be also read in case of the death of the witness. Sec. 6069. Notwithstanding the taking of a deposi- tion, it may be excluded from the case upon proof, that suf- ficient notice was not given to the party against whom it is offered to enable him to attend the taking thereof, or that the taking was not in all respects fair. Sec. 6070. When a deposition has been once taken, it may be read by either party in any stage of the same action or proceeding, or in any other action between the same parties, upon the same subject, and is then deemed the evi- dence of the party reading it. Sec. 607 1. Any party to an action or special proceeding in a court, or before a Judge of a State or other Territory, may obtain the testimony of a witness residing in this Ter- ritory to be used in such action or proceeding, in the cases mentioned in the next two sections. Sec. 6072. If a commission to take such testimony has been issued from the court or Judge before whom such ac- tion or proceeding is pending, on producing the commission to a District or Probate Judge, with an affidavit satisfactory to him of the materiality of the testimony, he may issue a subpoena to the witness, requiring him to appear and testify before the commissioner named in the commission, at a specified time and place. Sec. 6C73. If a commission has not been issued, and it appears to a District or Probate Judge, or Justice of the Peace, by affidavit satisfactory to him: 1. That the testimony of the witness is material to either party; 2. That a commission to take the testimony of such wit- ness has not been issued; 3. That according to the law of the State or Territory where the action or special proceeding is pending, the depo- sition of a witness taken under such circumstances, and be- fore such Judge or Justice, will be received in the action or proceeding; — He must issue his subpoena, requiring the wit- 692 Deposition one \ taken may be read at any time. Deposition in this Territory to be used in other States. How to procure witness upon commission. How, if no commission. 6074-6082 TAKING THE TESTIMONY OF WITNESSES. Tit. II. Gh. III. ness to appear and testify before him at a specified time and place. Sec. 6074. Upon the appearance of the witness, the Judge or Justice must cause his testimony to be taken in writing, and must certify and transmit the same to the court or Judge before whom the action or proceeding is pending, in such manner as the law of that State or Terri- tory requires. Sec. 6075. If either party requires it, the Judge may exclude from the court room any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of other witnesses. Sec. 6076. The examination of a witness by the party producing him is denominated the direct examination; the examination of the same witness, by the adverse party, the cross-examination. The direct examination must be com- pleted before the cross-examination begins, unless the court otherwise direct. Sec. 6077. A question which suggests to the witness the answer which the examining parties desires is denomin- ated a leading or suggestive question. On a direct examin- ation, leading questions are not allowed, except in the sound discretion of the court, under special circumstances, mak- ing it appear that the interests of justice require it. Sec. 6078. A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or im- mediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writ- ing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So also a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution. Sec. 6079. The opposite party may cross-examine the witness as to any facts material to the issues in the action, and in so doing may put leading questions. Sec. 6080. The party producing a witness, is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times, statements inconsis- tent with his present testimony. Sec. 6081. A witness once examined cannot be re-ex- amined as to the same matter without leave of the court, but he may be re-examined as to any new matter upon which he has been examined by the adverse party. And after the examinations on both sides are once concluded, the witness cannot be recalled without leave of the court. Leave is granted or withheld, in the exercise of a sound dis- cretion. Sec. 6082. A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examin- 693 Depositions, how taken. ^o 3fr Witnesses may be excluded, when. Direct and cross-examin- ation defined. N. S. 2 0*3 JtWJ^ Leading ques- „. s tions defined. New section. When witness may refresh memory from notes. *\o v- / \stdt 1 o y $ Cross-examine/, %. c / „ ,/ ation.ast^.^T'W^jOcl what. /p Si^Kt. «Cci C 6083. A witness may also be impeached by evi- dence, that he has made, at other times, statements incon- sistent with his present testimony; but before this can be done, the statements must be related to him, with the cir- cumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. 3 character, etc. Sec. 6084. Evidence of the good character of a party is not admissible in a civil action, nor of a witness in any action, until the character of such party or witness has been impeached, or unless the issue involves his character, writing shown Sec. 6085. Whenever a writing is shown to a witness, Sispectedby7 be it may be inspected by the opposite party, and if proved by opposite party, the witness, must be read to the jury before his testimony is closed, or it cannot be read except on recalling the witness. 694 £§ 6090-6094 OF THE RIGHTS AND DUTIES OF WITNESSES. Tit III. TITLE III. OF THE RIGHTS AND DUTIES OF WITNESSES. Section (J090. Witnesses bound to attend when subpoenaed. 6091. Witnesses bound to answer ques- tions. 6092. Witnesses protected from arrest. Section 6093. Arrest to be made void. 6094. To make affidavit if arrested. 6095. Court to discharge witnesses arrest. from Section 6090. A witness, served with a subpoena, must attend at the time appointed, with any papers under his con- trol, required by the subpoena, and answer all pertinent and legal questions, and, unless sooner discharged, must remain until the testimony is closed. Sec. 6091. A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to pun- ishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony. Sec. 6092. Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, Judge, Commissioner, referee, or other person, in a case where the disobedience of the witness may be punished as a contempt, is exonerated from arrest in a civil action, while going to the place of attendance, necessarily remaining there and returning therefrom. Sec. 6093. The arrest of a witness, contrary to the pre- ceding section, is void, and, when willfully made, is a con- tempt of the court; and the person making it is responsible to the witness arrested for double the amount of the dam- ages which may be assessed against him, and is also liable to an action at the suit of the party serving the witness with the subpoena, for the damages sustained by him in conse- quence of the arrest. Sec. 6094. An officer is not liable to the party for mak- ing the arrest in ignorance of the facts creating the exoner- ation, but is liable for any subsequent detention of the party, if such party claim the exemption, and make an affidavit stating: 1. That he has been served with a subpoena to attend as a witness before a court, officer, or other person, specifying the same, the place of attendance, and the action or pro- ceeding in which the subpoena was issued; and, 2. That he has not thus been served by his own procure- ment, with the intention of avoiding an arrest; 3. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and exonerates him from liability for discharging the wit- ness when arrested. Witness to attend when subpoenaed. Witness bound to answer questions. ao£v ^0V. 701 \ PENAL CODE OF IDAHO TEERITORY. PART FOURTH -PENAL. PRELIMINARY PROVISIONS. 6301. 6302. 6303. 6304. 6303. 6306. 6307. (>3i>8. 'public offense" de- Section 6309. "Crime" and fined. Crimes, how divided. Felony and misdemeanor defined. Punishment of felony, when not otherwise prescribed. Punishment of misdemeanor, when not otherwise prescribed. To constitute crime there must be unity of act and intent. Intent, how manifested, and who considered of sound mind. Drunkenness no excuse for crime. When it may be considered. 6310. 11311. 6312. 6313. 6314. 6315. 6316. Sectiox 6360. Title of PartIV of the Revised Stat- utes and how cited. Ceitain terms defined in the senses in which they are used in this Code. What intent to defraud is sufficient. Civil remedies preserved. Proceedings to impeach or remove officers and others preserved. Courts of justice to punish for con- tempts . Of sections declaring crimes punish- able. Duty of court Punishments, how determined. Witness' testimony may be read against him on prosecution for perjury. Section 6300. Part Fourth of these Revised Statutes, Title of Part iv, shall be known as the Penal Code of the Territory of Idaho, how cited. and whenever cited, enumerated, referred to, or amended, may be designated simply as the Penal Code, adding, when necessary, the number of the section. Sec. 6301. The following words, have in this Code the certain terms signification attached to them in this section, unless other- defined- wise apparent from the context: First. The word "willfully," when applied to the intent waifuiiy. with which an act is done or omitted, implies simply a pur- pose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage; Second. The words "neglect," "negligence," "negli- Negligence. gent," and "negligently," import a want of such attention to the nature or probable consequences of the act or omis- sion as a prudent man ordinarily bestows in acting in his own concerns; Third. The word "corruptly," imports a wrongful design corruptly, to acquire or cause some pecuniary or other advantage to the person guilty of the .act or omission referred to, or to some other person; Fourth. The words "malice," and "maliciously," import Malice. a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presump- tion of law ; Fifth. The word "knowingly," imports only a knowledge Knowingly. that the facts exist which bring the act or omission withm the provisions of this Code. It does not require any knowl- edge of the unlawfulness of such act or omission; Sixth. The word "bribe" signifies anything of value or Bribe, advantage, present or prospective, or any promise or under- taking to give any, asked, given, or accepted, with a cor- 45 705 PRELIMINARY PROVISIONS. §§ 6302-6309 r S \o h/ i v !«■ Person. What intent to defraud is sufficient. Cr. S., 156. Civil remedies preserved. N. S. Proceedings to remove officers and others preserved. K S. Courts of justice to punish for contempts. N. S. Duty of court. Punishments, how determined, N. S. Witness' testimony, etc. N. S. "Crime" defined, Cr. Prac, Sec. 1. rupt intent to influence, unlawfully, the person to whom it is given, in his action, vote, or opinion, in any public or official capacity; Seventh. Where the word "person" is used in this Code to designate the party whose property may be the subject of any offense, it includes this Territory, any other Terri- tory, any State, government, or country, wilich may lawfully own any property within this Territory, and all public and private corporations or joint associations, as well as indi- viduals. Sec. 6302. 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 any intent appears to defraud any person, association, or body politic or corporate, what- ever. Sec. 6303. The omission to specify or affirm in this Code any liability to damages, penalty, forfeiture, or other remedy imposed by law and allowed to be recovered or en- forced in any civil action or proceeding, for any act or omis- sion declared punishable herein, does not affect any right to recover or enforce the same. Sec. 6304. The omission to specify or affirm in this Code any ground of forfeiture of a public officer , or other trust or special authority conferred by law, or any power conferred by law to 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 removal, deposition, or suspension. Sec. 6305. This Code does not affect any power con- ferred by law upon any public body, tribunal or officer, to impose or inflict punishment for a contempt. Sec. 6306. The several sections of this Code which de- clare certain crimes to be punishable as therein mentioned, de- volves a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed. Sec. 6307. Whenever in this Code the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case, must be de- termined by the court authorized to pass sentence within such limits as may be prescribed by this Code. Sec. 6308. The various sections of this Code which de- clare that the evidence obtained upon the examination of a person as a witness cannot 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. Sec. 6309. A crime or public offense is an act commit- ted or omitted in violation of a law forbidding or command- ing it, 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 office of honor, trust or profit in this Territory. 706 §§ 6310-6316 PRELIMINARY PROVISIONS. Sec. 6310. Crimes are divided into: • 1. Felonies; and, 2. Misdemeanors. Sec. 63 11. A felony is a crime which is punishable with death or by imprisonment in the Territorial prison. Every other crime is a misdemeanor. When a crime punishable by imprisonment in the Territorial prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than impris- onment in the Territorial prison. Sec. 6312. Except in cases where a different punish- ment is prescribed by this Code, every offense declared to be a felony, is punishable by imprisonment in the Territorial prison not exceeding five years, or by fine not exceeding five thousand dollars, or by both such fine and imprison- ment. Sec. 6313. Except in cases where a different punish- ment is prescribed by this Code, every offense declared to be a misdemeanor, is punishable by imprisonment in a coun- ty jail not exceeding six months, or by a fine not exceeding three hundred dollars, or by both. Sec. 6314. In every crime or public off ense there must exist a union, or joint operation of act and intent, or crim- inal negligence. Sec. 6315. The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity. Sec. 6316. No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the act- ual 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 consideration the fact that the accused was intoxicated at the time, in deter- mining the purpose, motive or intent with which he com- mitted the act. 707 Crimes, how divided. Cr. Prac, Sec. 2. Felony and misdemeanor denned. Cr. Prac., Sec. 3, 4. Punishment of felony. Cr., 151. Punishment of misdemeanor. Cr., 151. To constitute crime, what. Cr., 1. Intent, how manifested etc. Cr , Sec. 2, 3. Drunkenness no excuse for crime. Cr., 7. When it may be considered. /G o n /? 7-0 2./ ■X TILL OF PERSONS LIABLE TO PUNISHMENT FOR CRIME. §§6330-6331 PART I.— OF CRIMES AND PUNISHMENTS. >L> Who are capable of -committing crimes. Cr.,4. Cr.,3. Cr., 8. Cr., 6. Cr., 0. V Who are liable to punishment. TITLE I. OF PERSONS LIABLE TO PUNISHMENT FOR CRIME. Section 0330. Who are capable of committing crimes. Section 0331. Who are liable to punishment. Section 6330. All persons are capable of committing crimes, except those belonging to the following classes: 1. Children under the age of fourteen years, in the ab- sense of clear proof that at the time of committing the act charged against them, they knew its wrongfulness; 2. Idiots; 3. Lunatics and insane persons; 4. Persons who committed the act or made the omission charged, under an ignorance or mistake of fact which dis- proves any criminal intent; 5. Persons who committed the act charged without being conscious thereof; 6. Persons who committed the act or made the omission charged, through misfortune or by accident, when it ap- pears that there was no evil design, intention or culpable negligence; 7. Married women (unless the crime be punishable with death) acting under the threats, command, or coercion of their husbands; 8. Persons (unless the crime be punishable with death) who committed the act or made the omission charged, un- der threats or menaces sufficient to show that they had rea- sonable cause to and did believe their lives would be en- dangered if they refused. Sec. 6331. The following persons are liable to punish- ment 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 larceny or robbery out of this Terri- tory, and bring to, or are found with the property stolen, in this Territory; 3. All who, being out of this Territory, cause or aid, ad- vise or encourage, another person to commit a crime within this Territory, and are afterwards found therein. 708 |§ 6341-6344 OF PARTIES TO CRIME. Tit. II. TITLE II. OF PARTIES TO CRIME. Section 6341 . Classification of parties to crime. 6342. Who are principals. Section 6343. Who are accessories. 6344. Punishment of accessories. Classification of parties to crime. N. S. Who are principals. Cr., 10. Section 6341. The parties to crimes are classified as: 1. Principals; and, 2. Accessories. Sec. 6342. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have ad- vised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics, or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are prin- cipals in any crime so committed. Sec. 6343. All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessories. Sec. 6344. Except in cases where a different punish- ment is prescribed, an accessory is punishable by imprison- c^ii.™611* °*' ment in the Territorial prison not exceeding two years, or by fine not exceeding five thousand dollars. do V Cr., 7. Who are accessories. Cr., 11. Accessories, Tr3^ i 709 TIL III. OF CRIMES AGAINST THE ELECTIVE FRANCHISE. §S 6354-6357 Af' TITLE III. f Violation of election laws, by certain officers. Elec. law. Sec. 34, 27. Act Feb. 3, 1885. ^3 \\-S Refusal to be sworn, a misdemeanor. N. S Voting without being qualified, etc., felonies. Act Feb. 7 1381. m:0 Attempting to vote without being qualified. Act Fob. 7. 1881. OF CRIMES AGAINST THE ELECTIVE FRANCHISE. Section 6354. Violation of election laws by certain officers a felony. 6355. Refusal to be sworn by or to answer questions of Board of Judges of Election a misdemeanor. 6356. Voting without being qualified, vot- ing twice, and other election frauds, felonies. 6357. Attempting to vote without being qualified. 6358. Procuring illegal voting a misde- meanor. 6359. Changing ballots or altering i*eturns by election officers, felonies. Section 6360. Election officers unfolding or mark- ing tickets guilty of a misde- meanor. Forging or altering returns a felony. Adding to or subtracting from votes given a felony. Persons aiding and abetting or con- cealing guilty of felony. Intimidating, corrupting, deceiving or defrauding electors, a misde- meanor. Riotous conduct at elections. Betting on elections. Violation of election laws by per- sons not officers. 6361. 6362. 6363. 6364. 6365. 6366. 6367. Section 6354. Every person charged with the perform- ance of any duty, under the provisions of any law of this Territory relating to elections, who willfully neglects or re- fuses to perform it, or who, in his official capacity, know- ingly and fraudulently acts in contravention or violation of any of the provisions of such laws, is, unless a different punishment for such acts or omissions is prescribed by this Code, punishable by fine not exceeding one thousand dollars, or by imprisonment in the Territorial prison not exceeding five years, or by both. Sec. 6355. Every person who, after being required by the Board of Judges at any election, refuses to be sworn, or who, after being sworn, refuses to answer any pertinent question propounded by such Board, touching his right, or the right of any other person to vote, is guilty of a misde- meanor. Sec. 6356. Every person not entitled to vote, who fraudulently votes, and every person who votes more than once at any one election, or knowingly hands in two or more tickets folded together, or changes any ballot after the same has been deposited in the ballot box, or adds, or attempts to add, any ballot to those legally polled at any election, either by fraudulently introducing the same into the ballot box before or after the ballots therein have been counted, or adds to or mixes with, or attempts to add to or mix with, the ballots lawfully polled, other ballots, while the same are being counted or canvassed, or at any other time, with intent to change the result of such election; or carries away or destroys, or attempts to carry away or destroy, any poll list, or ballots, or ballot box, for the pur- pose of breaking up or invalidating such election, or will- fully detains, mutilates, or destroys any election returns, or in any manner so interferes with the officers holding such election or conducting such canvass, or with the voters lawfully exercising their rights of voting at such election, as to prevent such election or canvass from being fairly held and lawfully conducted, is guilty of a felony. Sec. 6357. Every person not' entitled to vote, who fraudulently attempts to vote, or who, after being entitled to vote, attempts to vote more than once at any election, is guilty of a misdemeanor. 710 §£6358-6364 OF CRIMES AGAINST THE ELECTIVE FRANCHISE. Tit. Ill Sec. 6358. Every person who procures, aids, assists, counsels, or advises another to give or offer his vote at any election, knowing that the person is not qualified to, vote, is guilty of a misdemeanor. Sec. 6359. Every officer or clerk of election who aids in changing or destroying any poll list, or in placing any ballots in the ballot box, or taking any therefrom, or adds, or attempts to add, any ballots to those legally polled at such election, either by fraudulently introducing the same into the ballot box before or after the ballots therein have been counted, or adds to or mixes with, or attempts to add to or mix with the ballots polled any other ballots, while the same are being counted or canvassed, or at any other time, with intent to change the result of such election, or allows another to do so, when in his power to prevent it, or carries away or destroys, or knowingly allows another to carry away or destroy any poll list, ballot box, or ballots lawfully polled, is guilty of a felony. Sec. 6360. Every officer, Judge, or clerk of an election, who, previous to putting the ballot of an elector in the ballot box, attempts to find out any name on such ballot, or who opens, or suffers the folded ballot of any elector which has been handed in, to be opened or examined previous to put- ting the same into the ballot box, or who makes, or places any mark or device on any folded ballot, with a view to as- certain the name of any person for whom the elector has voted, or who, without the consent of the elector, discloses the name of any person which such officer, Judge, or clerk has fraudulently or illegally discovered to have been voted for by such elector, is punishable by fine, not less than fifty nor more than five hundred dollars. Sec. 6361. Every person who forges or counterfeits re- turns of an election purporting to have been held at a pre- cinct, town, or ward where no election was in fact, held, or willfully substitutes forged or counterfeit returns of elec- tion in the place of the true returns, for a precinct, town, or ward where an election was actually held, is guilty of a felony. Sec. 6362. Every person who willfully adds to or sub- tracts from the votes actually cast at an election, in any re- turns, or who alters such returns, is guilty of a felony. Sec. 6363. Every person who aids or abets in the com- mission of any of the offenses mentioned in the four preced- ing sections, is punishable by imprisonment in the county jail for the period of six months, or in the Territorial prison not exceeding two years. Sec. 6364. Every person who, by force, threats,menaces, bribery, or any corrupt means, either directly or indirectly attempts to influence any elector in giving his vote, or to deter him from giving the same, or attempts by any means whatever, to awe, restrain, hinder, or disturb any elector in the free exercise of the right of suffrage, or furnishes any elector wishing to vote, who cannot read, with a ticket, in- forming or giving such elector to understand that it contains a name written or printed thereon different from the name which is written or printed thereon, or defrauds any elector at any such election, by deceiving and causing such elector to vote for a different person, for any office, than he intended 711 Procuring illegal voting, a misdemeanor. Act Feb. 7, 1881. Changing ballots, altering returns, etc., felonies, Act Feb. 7, 1*81. L/ 7 yf Officers unfold- ing tickets, etc., misdemeanor. Act Feb. 7, 1881. cZ 9 Forging returns, a felony. Act 1881. cTo Adding to or subtracting . from, a felony. Act 1881. Aiding and abetting, punishment of. N. S. Intimidating, corrupting, etc., a misdemeanor. Act 1881. Tit. III. OF CRIMES AGAINST THE ELECTIVE FRANCHISE. §§ 6365-0367 Riotous conduct at elections. Actof 1881. 6° ti or desired to vote for; or who, being officer, Judge, or clerk of any election, while acting as such, induces, or attempts to induce, any elector, either by menace or reward, or promise thereof, to vote differently from what such elector intended or desired to vote, is guilty of a misdemeanor. Sec. 6365. Any person who willfully disturbs, or is guilty of any riotous conduct, at or near any election place, or voting precinct, with intent to disturb the same, or inter- feres with the access of the electors to the polling place, or in any manner, with the free exercise of the election franchise of the voters, or any voter there assembled, or disturbs or interferes with the canvassing of the votes, or with the making of the returns, is guilty of a misdemeanor. Sec. 6366. Every person who makes, offers, or accepts any bet or wager upon the result of any election, or upon the success or failure of any person or candidate, or upon the number of votes to be cast, either in the aggregate or for any particular candidate, or upon the vote to be cast by any person, is guilty of a misdemeanor. Sec. 6367. Every person who willfully violates any of the provisions of the laws of this Territory relating to elec- tions is, unless a different punishment for such violation is prescribed by law, punishable by fine not exceeding one thousand dollars, or by imprisonment in the Territorial prison not exceeding five years, or by both. Betting on elections . N. S. Violation of election laws persons not Officers. by 712 §§ 6380-6386 CRIMES BY AND AGAINST THE EXECUTIVE POWER. Tit, IV. TITLE IV. OF CRIMES BY AND AGAINST THE EXECUTIVE POWER. Section 6380. Giving or offering bribes to execu- tive officers . Asking or receiving bribes. Resisting officers. Extortion. Violation of laws probibiting certain officers from dealing in scrip, etc , and from being interested in con- tracts . Fraudulently presenting bills or claims to public officers for allow- ance or payment. 6381. 6382. 6383. 6384. 6385. Section 6386. Buying appointments to office. 6387. Taking rewards for deputation. 6388. Exercising functions of office wrong- » fully. 6389. Refusal to surrender books, etc., to successor. 6390. Preceding sections to apply to ad- ministrative and ministerial offi- cers. 6391. Disqualified person bolding office. 6392. Officer performing duties of two offi- ces. Section. 6380. 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 proceeding as such officer, is guilty of a felony. Sec. 6381. Every executive officer or person elected or appointed to an executive office, who asks, receives, or agrees to receive any bribe upon any agreement or un- derstanding that his vote, opinion, or action upon any mat- ter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is guilty of a felony, and forfeits his office. Sec. 6382. 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, or who knowingly resists by the use of force or violence, such officer, in the performance of his duty, is punishable by fine not exceeding five thousand dollars or imprisonment in the Territorial prison not exceeding five years, or both. Sec. 6383. Every executive officer who asks or receives any emolument, gratuity, or reward, or any promise thereof, excepting such as may be authorized by law, for doing any official act, is guilty of a misdemeanor. Sec. 6384. Every officer or person prohibited by the laws of this Territory from becoming a purchaser at sales, or from purchasing scrip, or other evidences of indebtedness, who violates any of the provisions of such laws, is punisha- ble by a fine of not more than one thousand dollars, or by imprisonment in the Territorial prison not more than five years. Sec. 6385. Every person who, with intent to defraud, presents for allowance or for payment to any Territorial board or officer, or to any county, town, city, ward, or vil- lage board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony. Sec. 6386. Every person who gives or offers any gratu- ity or reward, in consideration that he or any other person shall be appointed to any public office, or shall be permitted to exercise or discharge the duties thereof, is guilty of a misdemeanor. 713 Giving or offer- ing bribes to executive officers. Cr., 93. Asking or receiving bribes. Cr.,94. C 7 6? Resisting officers. Cr., 100. Act Jan. 12„ 1877. Extortion. N. 8. Probibiting officers from dealing in scrips etc. Act Jan. 5,. 1875. (nCf 7o 7/ Fraudulent bills, etc. N. 8. 7 7-- Buying appointment©. N. 8. 7c? Tit. IV. CRIMES BY AND AGAINST THE EXECUTIVE POWER. §§ 6387-6392 1 4 1 > V Taking rewards for deputation . Cr., 115. Exercising functions of office wrong- fully. N. S. Refusal to surrender books, etc., to successor. Cr., 97. 113. Preceding sec- tions applicable . N. S. Disqualified person holding office. 13 sea., 117. Officer perform- ing duties of two offices or neglecting duties under revenue law. Conip. laws, 516. Sec. 6387. Every public officer who, for any gratuity or reward, appoints another person to a public office, or per- mits another person to exercise or discharge any of the du- ties of his office, is punishable by a fine not exceeding five thousand dollars, and in addition thereto forfeits his office. Sec. 6388. Every person who willfully and knowingly intrudes himself into any public office to which he has not been elected or appointed, and every person who, having been an executive officer, willfully exercises any of the functions of his office after his term has expired, and a suc- cessor has been elected or appointed and has qualified, is guilty of a misdemeanor. Sec. 6389. Every officer whose office is abolished by law, or who, after the expiration of the time for which he may be appointed or elected, or after he has resigned or been legally removed from office, willfully and unlawfully with- holds or detains from his successor, or other person entitled thereto, the records, papers, documents, or other writing ap- pertaining or belonging to his office, or mutilates, destroys, or takes away the same, is guilty of a felony. Sec. 6390. The various provisions of this Title apply to administrative and ministerial officers, in the same manner as if they were mentioned therein. Sec. 6391. Every person not a legal voter and possess- ing all the qualifications prescribed for voters, or who is un- der any disqualification created by the laws of this Territory, who holds or exercises any office, is guilty of a misde- meanor. Sec. 6392. Any officer who, at the same time, performs the duties of any two officers, in any manner connected with the public revenue, except in the manner expressly provided by law, or any collecting or disbursing officer who refuses or neglects the performance of the duties required of him by the title "Revenue" of the Political Code is guilty of a felony, and on conviction thereof must be punished by imprisonment in the Territorial prison not more than one year, or by a fine of not less than two hundred nor more than one thousand dollars, or by both such fine and impris- onment, and must forthwith be removed from office. 714 §§6410-6415 OF CRIMES AGAINST THE LEGISLATIVE POWER. Tit V. TITLE V. OF CRIMES AGAINST THE LEGISLATIVE POWER. Section 64 10. Altering draft of bill or resolution. 6411. Altering enrolled copy of bill or resolution. 6412. Giving or offering bribes to mem- bers of the Legislature. 6413. Receiving bribes by members of the Legislature. Section 6414. Witnesses refusing to attend, testi- fy, or produce papers before the Legislature or committees there- of. 6415. Members of the Legislature, in ad- dition to other penalties, to for- feit office and be disqualified, etc. Section 6410. 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 felony. Sec. 6411. Every person who fraudulently alters the enrolled copy of any bill or resolution which has been passed or adopted by the Legislature with intent to procure it to be adopted by the Governor, or certified by the Secretary of the Territory, or printed or published by the printer of the statutes, in language different from that in which it was passed or adopted by the Legislature, is guilty of felony. Sec. 6412. Every person who gives or offers to give a bribe to any member of the Legislature, or to another per- son for him, or attempts by menace, deceit, suppression of truth, or any corrupt means, to influence a member in giv- ing or withholding his vote, or in not attending the House or any committee of which he is a member, is guilty of a felony. Sec. 6413. Every member of either of the Houses com- posing 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 in- fluenced thereby, or shall be given, in any particular man- ner, or upon any particular side of any question or matter upon which he may be required to act in his official capac- ity, or gives, or offers, or promises to give, any official vote in consideration that another member of the Legislature shall give any such vote either upon the same or another question, is guilty of a felony. Sec. 6414. Every person who, being summoned to at- tend as witness before either House of the Legislature or any committee thereof, refuses or neglects, without lawful excuse, to attend pursuant to such summons; and every person who, being present before either House of the Legis- lature or any committee thereof, willfully refuses to be sworn 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 guilty of a misdemeanor. Sec. 6415. Every member of the Legislature convicted of any crime defined in this chapter, in addition to the punishment prescribed, forfeits his office, and is forever dis- qualified from holding any office in this Territory. 715 Altering draft of bill or rosoution. N. S. ft Altering enrolled copy of bill or resolution. N. S. Bribing judges, jurors, etc. Crs., 92, 93. <\h Judicial officers, etc . , receiving bribes. Cr., 92, 93. q<4 ^ Extortion. Cr., 113. Improper attempts to influence'juror, etc. Cr., 112. <\Vj Misconduct of jurors, etc. Cr., 112. TITLE VI. OF CRIMES AGAINST PUBLIC JUSTICE. CHAPTER I. Bribery and Corruption. Section 6430. Giving bribes to judges, jurors, ref- erees, etc. 6431. Receiving bribes by judicial offi- cers, jurors, etc. 6432. Extortion. 6433. Improper attempts to influence jurors, referees, etc. Section 6434. Misconduct of jurors, referees, etc. 6435. Justice or constable purchasing judgment, 6436. Officers to forfeit and be disqualified from holding office. Section 6430. Every person who gives or offers to- give a bribe to any judicial officer, juror, referee, arbitrator, or umpire, or to any person who may be authorized by law to hear or determine any question or controversy, with in- tent to influence his vote, opinion, or decision upon any matter or question which is or may be brought before him for decision, is guilty of a felony. Sec. 6431. Every judicial officer, juror, referee, arbi- trator, or umpire, and every person authorized by law ta hear or determine any question or controversy, who asks, receives, or agrees to receive, any bribe, upon any agree- ment or understanding that his vote, opinion, or decision upon any matters or question which is or may be brought before him for decision, shall be influenced thereby, is guilty of a felony. Sec. 6432. Every judicial officer who asks or receives any emolument, gratuity, or reward, or any promise there- of, except such as may be authorized by law, for doing any official act, is guilty of a misdemeanor. Sec. 6433. Every person who corruptly attempts to in- fluence a juror, or any person summoned or drawn as a juror, or chosen as an arbitrator or umpire, or appointed a referee, in respect to his verdict in, or decision of, any cause 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; 2. By means of any book, paper, or instrument ex- hibited, otherwise than in the regular course of proceedings; 3. By means of any threat, intimidation, persuasion, or entreaty; or, 4. By means of any promise or assurance of any pecun- iary or other advantage ; is guilty of a felony. Sec. 6434. Every juror or person drawn or summoned as a juror, or chosen arbitrator or umpire, or appointed ref- eree, who either: 1. Makes any promise or agreement to give a verdict or decision for or against any party; or, 2. Willfully and corruptly permits any communication to be made to him, or receive any book, paper, instrument or information relating to any cause or matter pending be- fore him, except according to the regular course of proceed- ings, is guilty of a felony. 716 §§6435-6452 RESCUES.— ESCAPES AND AIDING THEREIN. Tit. VI. Ch.II-III. Sec. 6435. Every Justice of the Peace or Constable of phasing0'' the same precinct who purchases or is interested in the pur- judgment0 chase of any judgment or part thereof on the docket of, or Cr*' 114, on any docket in possession of such Justice, is guilty of a misdemeanor. Sec. 6436. Every officer convicted of any crime defined officers to in this chapter, in addition to the punishment prescribed, forfeit office' forfeits his office. 91 C ft CHAPTER II. Rescues. Section 6446. Rescuing prisoners. Section 6447. Retaking goods from custody of of- ficer. 101 Section 6446. Every person who rescues, or attempts Rescuing to rescue, or aids another person in rescuing or attempting cS!°ioei,sio2. to rescue, any prisoner from any prison, or from any officer or person having him in lawful custody, is punishable as fol- lows: 1. If such prisoner was in custody upon a conviction of felony punishable with death, by imprisonment in the Ter- ritorial prison not less than one, nor more than fourteen years; 2. If such prisoner was in custody upon a conviction of any other felony, by imprisonment in the Territorial prison not less than six months nor more than five years; 3. If such prisoner was in custody upon a charge of felo- ny, by a fine not exceeding one thousand dollars and im- prisonment in the county jail not exceeding one year; 4. If such prisoner was in custody otherwise than upon a charge or conviction of felony, by fine not exceeding five hundred dollars and imprisonment in the county jail not exceeding six months. Sec. 6447. Every person who willfully injures or de- Retaking goods stroys, or takes, or attempts to take, or assists any person £rcustody of in taking or attempting to take, from the custody of any n. s. 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 III. Escapes and Aiding Therein. Section 6452. Escapes from Territorial prison. 6 453. Attempt to escape from Territorial prison. 6154. Escapes from other than Territorial prison. Section (! 155. Officers suffering convicts to escape. 6456. Assisting prisoner to escape. 6457. Carrying into prison things useful to aid in an escape. 6458. Expense of trial for escape. Section 6452. Every Territorial prisoner confined in the Territorial prison for a term less than for life, who es- capes therefrom, is punishable by imprisonment in the Ter- ritorial prison for a term equal in length to the term he was serving at the time of such escape; said second term of im- prisonment to commence from the time he would otherwise have been discharged from said prison. 717 Escapes from Territorial prison. N. S. / £>«A Tit. VI. Ch.IV. FORGING AND STEALING PUBLIC RECORDS. §£6453 6465 ot (01 H \0<\ f'l Attempt to escape from Territorial prison. N. S. Escapes from other prisons. N. S. Officers suffer- ing convicts to escape. Crs., 103, 107. Assisting prisoners to escape. Cr., 106. Carrying in to prison things useful to aid in an escape. Cr., 104. Expense of trial for escape. N. S. Sec. 6453. Every prisoner confined in the Territorial prison for a term less than for life, who attempts to es- cape from such prison, is guilty of a felony, and, on convic- tion thereof, the term of imprisonment therefor shall com- mence from the time such convict would otherwise have been discharged from said prison. Sec. 6454. Every prisoner confined in any other prison than the Territorial prison, who escapes or attempts to es- cape therefrom, is guilty of a misdemeanor. Sec. 6455. Every keeper of a prison, Sheriff, Deputy Sheriff, Constable or jailor, or person employed as a guard, who fraudulently contrives, procures, aids, connives at, or voluntarily permits the escape of any prisoner in custody, is punishable by imprisonment in the Territorial prison not exceeding ten years, and fine not exceeding ten thousand dollars. Every such officer or person who negligently suf- fers such escape is guilty of a misdemeanor. Sec. 6456. Every person who willfully assists any pris- oner confined in any prison or in the lawful custody of any officer or person to escape, or in an attempt to escape from such prison or custody, is guilty of a felony. Sec. 6457. Every person who carries or sends into a prison anything useful to aid a prisoner in making his es- cape, with intent thereby to facilitate the escape of any pris- oner confined therein, is guilty of a felony. Sec. 6458. Whenever a trial shall be had of any per- son under any of the provisions of the first two sections of this chapter, and whenever a Territorial convict in the Ter- ritorial prison shall be tried for any crime committed there- in, the Clerk of the District Court shall make out a state- ment of all the costs incurred by the county for the trial of such case, and for the guarding and keeping such convict, and when certified by the Judge who tried the case, such statement shall be audited by the Controller and paid by the Territorial Treasurer to the Treasurer of the county where the trial was had. CHAPTER IV. Forging, Stealing, Mutilating, and Falsifying Judicial and Public Records and Documents. 113 \i Larceny, etc. of records by officers. Cr., 95. Larceny, etc., of records by other persons. Cr., 95. Section Section 6464. Larceny, destruction, etc., of rec- 6466. Offering false or forged instru- ords by officers having them in rnents to be filed of record, custody. 6467. Adding names, etc., to jury lists. 6465. Larceny, destruction, etc., of rec- 6468. Falsifying jury lists, etc. ords by other persons. Section 6464. Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his hands for any purpose, who is guilty of stealing, willfully destroying, mutilating, defacing, altering or falsifying, re- moving or secreting the whole or any part of such record, map, book, paper or proceeding, or who permits any other person so to do, is punishable by imprisonment in the Terri- torial prison not less than one nor more than fourteen years. Sec. 6465. Every person not an officer such as is re- ferred to in the preceding section, who is guilty of any of the acts specified in that section, is punishable by imprison - 718 §36466-6482 PEKJUKY AND SUBOENATION OF PERJURY. Tit. VI. Ch. V. ment in the Territorial prison not exceeding five years, or in a county jail not exceeding one year, or by a fine not ex- ceeding one hundred dollars, or by both. Sec. 6466. Every person who knowingly procures or offering false or offers any false or forged instrument to be filed, registered J£*|et^ jjj'jjj1' or recorded in any public office within this Territory, which filed. instrument, if genuine, might be filed, or registered, or re- N* s* corded under any law of this Territory or of the United States, is guilty of felony. Sec. 6467. Every person who adds any names to the Adding names, / / (» list of persons selected to serve as jurors, either by placing ^ t0 Jur^ the same in the jury box or otherwise, or extracts any name n. s.' therefrom, or destroys the jury box or any of the pieces of paper containing the names of jurors, or mutilates or defaces such names so that the same cannot be read, or changes such names on the pieces of paper, except in cases allowed by law, is guilty of a felony. Sec. 6468. Every officer or person required by law to Falsifying // / certify to the list of persons selected as jurors who malic- j^y lists, etc. iously, corruptly, or willfully certifies to a false or incorrect list, or a list containing other names than those selected, or who, being required by law to write down the names placed on the certified lists on separate pieces of paper, does not write down and place in the jury box the same names that are on the certified lists, and no more and no less than are on such list, is guilty of a felony. CHAPTER V. Perjury and Subornation of Perjury. Section 0485. Statement of that which one does not know to be true. 0486. Punishment of perjury. 0487. Subornation of perjury. 0488. Procuring the execution of innocent person. 0489. Falsely swearing to qualifications as a voter. Section 6478. Pejury defined. 0479. Oath defined. 0480. Oath of office. 0481. Irregularity in administering. 6482. Incompetency of witness no defense. 0183. Witness' knowledge of materiality of his testimony not necessary. 0484. Making depositions, etc., when deemed complete. Section 6478. Every person who, having taken an oath Perjury defined. // s* Sec. 6482. It is no defense to a prosecution for perjury incompetency that the accused was not competent to give the testimony, °t witness no deposition, or certificate of which falsehood is alleged, It Nefsnse' is sufficient that he did give such testimony or make such deposition or certificate. 719 Tit. VI Ch. VI FALSIFYING EVIDENCE. ' §§ 6483-6503 ft* n4 Knowledge of witness, etc. N. S. Making deposition, etc. N. S. Statement, etc. N. S. Perjury, pun- ishment of. Cr., 90. Subornation of perjury. Cr., 91. Execution of innocent prisoner. Cr., 91. Falsely swearing to qualifications as a voter. 13 ses , 117. Sec. 6483. It is no defense to a prosecution 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. Sec. 6484. The making of a deposition or certificate is deemed to be complete, within the provisions of this chap- ter, from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true. Sec. 6485. An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false. Sec. 6486. Perjury is punishable by imprisonment in the Territorial prison not less than one or more than four- teen years. Sec. 6487. Every person who willfully procures another person to commit perjury is guilty of a subornation of per- jury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured. Sec. 6488. Every person who, by willful perjury or subornation of perjury, procures the conviction and execu- tion of any innocent person, is punishable by death. Sec. 6489. Every person who, upon his right to vote being challenged at any election held under the laws of this Territory, willfully, corruptly and falsely swears touching his qualifications as a voter, is guilty of perjury. \iv P 0 A ■T 131 Offering false evidence. N. S. Preparing false evidence. N. 8. Destroying evidence. N. S. Preventing witness from attending. N. S. CHAPTER VI. Falsifying Evidence. Section 6500. Offering false evidence. 6501. Preparing false evidence. 6502. Destroying evidence . Section 6503. Preventing or dissuading witness from attending. 6504. Bribing -witnesses. 6505. Taking or offering to take bribes. Section 6500. Every person who, upon any trial, proceed- ing, inquiry, or investigation whatever, authorized or per- mitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writ- ing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony. Sec. 65(3 1. Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony. Sec. 6502. Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, will- fully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor. Sec. 6503. Every person who willfully prevents or dis- suades any person who is or may become a witness, from attending upon any trial, proceeding, or inquiry, authorized by law, is guilty of a misdemeanor. 720 5§ 6504-6513 OTHEE OFFENSES AGAINST PUBLIC JUSTICE. Tit. VI. Ch. VII, Sec. 6504. Every person who gives or offers, or prom- ^Jj^°|es ises to give, to any witness, or person about to be called as a n. s. witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influ- enced, or who attempts by any other means fraudulently to induce any witness to give false or to withhold true testi- mony, is guilty of a misdemeanor. Sec. 6505/ Every person who is a witness, or is about Taking or to be called as such, who receives or offers to receive any JS^es.8 10 take bribe, upon any understanding that his testimony shall be n. s. ' influenced thereby, or that he will absent himself from the trial or proceeding upon which his testimony is required, is guilty of a misdemeanor. A* 7 /Jf CHAPTER VII. Other Offenses Against Public Justice. 6511. 6512. 6513. 6514. 6515. 6516. 6517. 6518. 6519. 6520. 6521. 6522. 6523. Section 6524. Buying demands or suit by an at- torney. Attorneys forbidden to defend pros- ecutions carried on by tbeir part- ners or formerly by themselves. Limitation of preceding section. Grand juror acting after challenge has been allowed. Bribing members of common coun- cils, boards of commissioners, or trustees. Criminal contempts. False certificates by public offi- cers . Disclosing fact of indictment or pre- sentment having been found or made. Grand juror disclosing what tran- spired before the grand jury. Maliciously procuring search war- rant. Omission of duty by public officer. Penalty when not prescribed. 6525. 6526. 6527. 6528. 6529. £530. 6531. 6532. 6533. 6534. 6535. Section 6510. Officer refusing to receive or arrest parties charged with crime. Public administrator, neglect of duty or violation of duty by. Delaying to take person arrested before a magistrate. Making arrest, etc., without lawful authority. Inhumanity to prisoners. Resisting public officers in the dis- charge of their duties. Assaults, etc., by officers, under color of authority . Refusing to aid officers in arrest, etc. Compounding crimes. Debtor fraudulently concealing his property. Defendant fraudulently concealing his property. Common barratry defined. How punished. What proof is required. Neglect or refusal to pay over money. Section 6510. Every sheriff, coroner, keeper of a jail, constable, or other peace officer, who willfully refuses to re- ceive or arrest any person charged with criminal offense, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding one year. Sec. 6511. Every person holding the office of public ad- ministrator, who willfully refuses or neglects to perform the duties thereof, or who violates any provision of law relating to his duties or the duties of his office, for which some other punishment is not prescribed, is punishable by fine not ex- ceeding five thousand dollars, or imprisonment in the coun- ty jail not exceeding one year, or both. Sec. 6512. Every public officer, or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having juris- diction, to take his examination, is guilty of a misdemeanor. Sec. 6513. Every public officer, or person pretending to be a public officer, who, under the pretense or color of any 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 tene- ments, without a regular process or other lawful authority therefor, is guilty of a misdemeanor. 46 721 Officer refusing to arrest parties. Cr., 108. Public administrator, neglect of duty, etc. A ct Feb. 9, 1881. /V2- /** Delaying to take / */ person arrested before a magistrate. N. S. Making arrests, etc., without authority. N. & YG Tit. VI. CI). VII. OTHER OFFENSES AGAINST PUBLIC JUSTICE. £§ 6514-6520 1 +% 4. Resisting public officers in the discharge of their duties. Cr., 100. Assaults, etc., by officers under color of authority. N. S. Refusing to aid officers in arrest. C. Prac, 36. Compounding crimes. Cr., 109. Debtor fraudu- lently conceal- ing property. Cr., 135. \S Defendant fraudulently concealing groperty. r., 135. Sec. 6514. Every officer who is guilty of willful in- humanity or oppression toward any prisoner under his care or in his custody, is punishable by fine not exceeding two thousand dollars, and by removal from office. Sec. 6515. Every person who willfully resists, delays, or obstructs any public officer, in the discharge, or attempt to discharge any duty of his office, when no other punish- ment is prescribed, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding one year. Sec. 6516. Every public officer who, under color of authority, without lawful necessity, assaults or beats any person, is punishable by fine not exceeding five thousand dollars and imprisonment in the county jail not exceeding one year. Sec. 6517. Every male person above eighteen years of age who neglects or refuses to join the posse cornitaus or power of the county, by neglecting or refusing to aid and assist in taking or arresting any person against whom there may be issued any process, or by neglecting to aid and assist in retaking any person who, after being arrested or confined, may have escaped from such arrest or imprison- ment, or by neglecting or refusing to aid and assist in pre- venting any breach of the peace, or the commission of any criminal offense, being thereto lawfully required by any sheriff, deputy sheriff, coroner, constable, judge, or justice of the peace, or other officer concerned in the administra- tion of justice, is punishable by fine of not less than fifty nor more than one thousand dollars. Sec. 6518. Every person who having knowledge of the actual commission of a crime, takes money or property of another, or any gratuity or reward, or any engagement, or promise thereof, upon any agreement or understanding to compound or conceal, such crime, or to abstain from any prosecution thereof, or to withhold any evidence thereof, except in the cases provided for by law, in which crimes may be compromised by leave of court, is punishable as fol- lows: 1. By imprisonment in the Territorial prison not exceed- ing five years, or in a county jail not exceeding one year where the crime was punishable by death or imprisonment in the Territorial prison for life. 2. By imprisonment in the Territorial prison not exceed- ing three years, or in the county jail not exceeding six months, where the crime was punishable by imprisonment in the Territorial prison for any other term than for life. 3. By imprisonment in the county jail not exceeding six months, or by fine not exceeding five hundred dollars, where the crime was a misdemeanor. Sec. 6519. Every debtor who fraudulently removes his property or effects out of this Territory, or fraudulently sells, conveys, assigns, or conceals his property with intent to defraud, hinder, or delay his creditors of their rights, claims, or demands, is punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding- five thousand dollars, or by both. Sec. 6520. Every person against whom an action is pending, or against whom a judgment has been rendered 722 §$ 6521-6528 OTHER OFFENSES AGAINST PUBLIC JUSTICE. Tit. IV. Ch. VII. for the recovery of any personal property, who fraudulently conceals, sells, or disposes of such property, with intent to hinder, delay, or defraud the person bringing such action or recovering such judgment, or with such intent removes such property beyond the limits of the county, in which it may be at the time of the commencement of such action or the ren- dering of such judgment, is punishable as provided in the preceding section. Sec. 6521. Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by im- Erisonment in the county jail not exceeding six months and y fine not exceeding five hundred dollars. Sec. 6522. jSTo person can be convicted of common bar- ratry except upon proof that he has excited suits or proceed- ings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy. Sec. 6523. Every attorney at law, agent, collector, or other person who collects or receives any money or property on any debt, claim or demand due to another person, and, upon demand made by said person to whom such debt, claim or demand is due, for the space of twenty days, refuses or neglects to pay over said money, or deliver up said prop- erty so received to such person making said demand, is guilty of grand or petit larceny according to the amount of the money or value of the property so refused to be deliv- ered over. Sec. 6524. Every attorney who, either directly or in- directly, 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. Sec. 6525. Every attorney who directly or indirectly, advises in relation to, or aids, or promotes 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, having himself prosecuted or in any manner aided or promoted any action or proceeding in any court as Dis- trict Attorney or other public prosecutor, afterwards, direct- ly or indirectly, advises in relation to, or takes any part in the defense thereof, as attorney or otherwise, or who takes or receives any valuable consideration from, or on behalf of any defendant in any such action, upon any understanding or agreement whatever having relation to the defense there- of, is guilty of a misdemeanor, and in addition to the pun- ishment prescribed therefor, forfeits his license to practice law. Sec. 6526. The preceding section does not prohibit an attorney from defending himself in person as attorney or counsel, when prosecuted, either civilly or criminally. Sec. 6527. Every grand juror who, with knowledge that 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 defend- ant who interposed the challenge or the deliberations of the grand jury thereon, is guilty of a misdemeanor. Sec. 6528. Every person who gives or offers a bribe to any member of any common council, board of commission- 723 Common barratry, how punished. N. S. What proof is required. N. S. Neglect or refusal to pay money. Cr., 75. /«T /J-f Buying demands or suit by an attorney. N. S. Attorneys forbidden to defend prosecu- tions carried on by their partners. N. S. /6/ /i l^ Limitation of preceding section. N. S. Grand juror acting after challenge has been allowed. Bribing mem- bers of councils, commissioners, etc. Cr., 93. /- Tit. VII. Ch. VU-V1II. DUELS.— FALSE IMPRISONMENT. §§ 6711-6722 n /, . (~ Duel defined. 7 Cr.,35. Duel, punish- . / /j ment for. "V1 Cr.,35. />^1 O-'M Duel, punish- ment for. Cr., 36. Posting for not fighting. Cr., 38. O- 30 Duty of officers to preTent duels . Cr., 125. Witness' privilege. Cr., 37. <^ ■V CHAPTER VII. Duels and Challenges. Section 0711. Duel defined. 6712. Punishment for fighting a duel ■when death ensues . 6713. Punishment for fighting a duel although death does not ensue. Section 6714. Posting for not fighting. 6715. Duties of officers to prevent duels. 6716. Witness' privilege. Section 6711. A duel is any combat with deadly wea- pons, fought between two or more persons, by previous agreement or upon a previous quarrel. Sec. 6712. Every person guilty of fighting any duel, from which death ensues within a year and a day, is pun- ishable by imprisonment in the Territorial prison not less than one nor more than seven years. Sec. 6713. Every person who fights a duel, although no death or wound s© ensue, or who sends or accepts a chal- lenge to fight a duel, is punishable by imprisonment in the Territorial prison or in a county jail not exceeding one year. Sec. 6714. Every person who posts or publishes another for not fighting a duel, or for not sending or accepting a challege to fight a duel, or who uses any reproachful or con- temptuous language, verbal, written, or printed, to or con- cerning another, for not sending or accepting a challenge to fight a duel, or with intent to provoke a duel, is guilty of a misdemeanor. • Sec. 6715. Every judge, justice of the peace, sheriff, or other officer bound to preserve the public peace, who has knowledge of the intention on the part of any persons to fight a duel, and who does not exert his official authority to arrest the party and prevent the duel, is punishable by fine not exceeding one thousand dollars. Sec. 6716. 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 examina- tion of a person so testifying shall be received against him in any criminal prosecution or proceeding. *3G 7-31 False imprison- ment defined. Cr., 49. False imprison- ment, how punished. Cr.,49. CHAPTER VIII. False Imprisonment. Section G721. False imprisonment defined. Section 6722. False imprisonment, how punished. Section 6721. False imprisonment is the unlawful vio- lation of the personal liberty of another. Sec. 6722. False imprisonment is punishable by fine not exceeding five thousand dollars, or by imprisonment in the county jail not more than one year, or both. 730 §3 6727-C739 ASSAULT AND BATTERY.— LIBEL. Tit. TIL Ch. IX-X CHAPTER IX. Assault and Battery. Section 6727. Assault defined. 6728. Assault, how punished. 6729. Battery defined. Section 6730. Battery, how punished. 6731. Assaults with caustic chemicals. 6732. Assaults with deadly weapons. Section 6727. An assault is an unlawful attempt, coup- led with a present ability, to commit a violent injury on the person of another. Sec. 6728. An assault is punishable by fine not exceed- ing one hundred dollars, or by imprisonment in the county jail not exceeding three months. Sec. 6729. A battery is any willful and unlawful use of g&tfceyy defined force or violence upon the person of another. Sec. 6730. A battery is punishable by fine not exceed- ing three hundred dollars, or by imprisonment in the county jail not exceeding six months, or both. Sec. 6731. Every person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, or caustic chemical* of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by impris- onment in the Territorial prison not less than one or more than fourteen years. Sec. 6732. Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily in- jury, is punishable by imprisonment in the Territorial prison not exceeding two years, or by fine not exceeding five thou- sand dollars, or by both. ^ w-^l Assault defined. Cr., 46. Assault, how punished. Cr.,46. Cr.,48. Battery, how punished. Assault with chemical. I/O ^y 3 Assault with deadly weapon, Cr., 47. yj-\ Qaa 0 >// v. ir^ CHAPTER X. Libel. Section 6737. Libel defined. Punishment of libel. Malice presumed. Truth may be given in evidence. Jury to determine law and fact. Publication defined. Liability of editors and publishers. (J73 6739. 6740, 6741. 6742. Section 6743. Publishing a true report of public official proceedings published. 6744. Extent of privilege. 6745. Threatening to publish libel. Offer to prevent publication, with in- tent to extort money. Section 6737. A libel is a malicious defamation, ex- Libei defined, pressed either by writing, printing, or by signs or pictures, Cr" 126- or the like tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputa- tion, or publish the natural or alleged defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule. Sec. 6738. Every person who willfully, and with a Libei, punish- malicious intent to injure another, publishes or procures to ceni26 be published any libel, is punishable by fine not exceeding r'' five thousand dollars, or imprisonment in the county jail not exceeding six months. Sec. 6739. An injurious publication is presumed to Maiice have been malicious if no justifiable motive for making it presumed. is shown. N' s< 731 ^y^ ^^9 2 vTo ^ Tit. VII. Ch. X. LIBEL. §§ 6740-6745 Truth given in evidence. Or., L26. ') Publication denned. N. S. h.£ V Liability of editors, etc. N. S. 0-O Publishing report of public official proceedings. N. S. KsHf Extent of h rf~ privilege. N. S. Threatening to publish libel. ^] Sec. 6740. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it ap- pears to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury have the right to determine the law and the fact. Sec. 6741. To sustain a charge of publishing a libel, it is not needful that the words or things complained of should have been read or seen by another. It is enough that the accused knowingly parted with the immediate custody of the libel under %be- circumstances which exposed it to be read or seen by any other person than himself. Sec. 6742. Each author, editor, and proprietor of any book, newspaper, or serial publication, is chargeable with the publication of any words contained in any part of such book, or number of such newspaper or serial. Sec. 6743. No reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true re- port of any judicial, legislative, or other public official pro- ceedings, 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 not be implied from the mere fact of publication. Sec. 6744. Libelous remarks or comments connected with matter privileged by the last section receive no privi- lege by reason of their being so connected. Sec. 6745. Every person who threatens another to pub- lish a libel concerning him, or any parent, husband, wife, or child of such person, or member of his family, and every person who offers to prevent the publication of any libel upon another person, with intent to extort any money or other valuable consideration from any person, is guilty of a misdemeanor. 732 §§ 6765-6770 KAPE, ABDUCTION, AND SEDUCTION. Tit. V UI. Ch.l. TITLE VIII. OF CRIMES AGAINST THE PERSON AND AGAINST PUBLIC DECENCY AND GOOD MORALS. CHAPTER I. Rape, Abduction and Seduction. Section 6765. Rape defined. 6766. When physical ability must be proved. 6767. Penetration sufficient. 6768. Punishment of rape. 6769. Abduction of women. Section 6770. Seduction for purposes of prostitu- tion. 6771. Abduction. 6772. Admission of minors to places of prostitution. Section 6765. Rape is an act of sexual intercourse ac- Rape defined, complished with a female, not the wife of the perpetrator, c^' 44, ' under either of the following circumstances: J\ it A 1. Where the female is under the age of ten years; L%fhtl\>LcL 2. Where she is incapable through lunacy, or any other Jjt^xvu «t*v*Vta* unsoundness of mind, whether temporary or permanent, of ire ^ ha<>c /n giving legal consent; lojo^j^ 'O 3. Where she resists, but her resistance is overcome by force or violence; 4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by appar- ent power of execution; or by any intoxicating, narcotic or anaesthetic substance, administered by or with the privity of the accused; 5. Where she is at the time, unconscious of the nature of the act, and this is known to the accused; 6. Where she submits, under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief. Sec. 6766. No conviction for rape can be had against when physical one who was under the age of fourteen years at the time of ability must be the act alleged, unless his physical ability to accomplish Nr°s.ed' penetration is proved as an independent fact, and beyond a reasonable doubt. Sec. 6767. The essential guilt of rape consists in the Penetration outrage to the person and feelings of the female. Any sex- sufficient. ual penetration, however slight, is sufficient to complete the r' "' 363' crime. Sec. 6768. Rape is punishable by imprisonment in the Rape, punish- Territorial prison not le§s than five years, and the imprison- jj?enJ?f- ment may be extended for life. Sec. 6769. Every person who takes any woman unlaw- fully, against her will, and by force, menace, or duress, compells her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment in the Terri- torial prison not less than two nor more than fourteen years. Sec. 6770. Every person who inveigles or entices any seduction for unmarried female, of previous chaste character, under the purpose of age of eighteen years, into any house of ill-fame, or of assig- Pro*tltutlon- nation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every per- 733 Women, abduction of. Cr., 5.'}. Tit. VIII. Ch.lllll. NEGLECT OF CHILDREN.-ABORTIONS. .§§6771-6794 Abductior, N. S. son who aids or assists in such inveiglement or enticement, 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 thou- sand dollars, or by both such fine and imprisonment. Sec. 6771. Every person who takes away any female under the age of eighteen years from her father, mother, guardian, or other person having the legal charge of her person, without their consent, for the purpose of prostitu- tion, is punishable by imprisonment in the Territorial prison not exceeding five years, and a fine not exceeding one thou- sand dollars. Sec. 6772. Any proprietor, keeper, manager, conductor, or person having the control of any house of prostitution, or any house or room, resorted to for the purpose of prostitu- tion, who shall admit or keep any minor of either sex there- in, or any parent or guardian of any such minor who shall admit or keep such minor, or sanction, or connive at the admission or keeping thereof, into, or in any such house or room, shall be guilty of a misdemeanor. Admission of minors to places of prostitution. N. S. Omitting to provide child with neces- saries. Deserting child. Minors frequenting saloons. 8 868., 760. CHAPTER II. Abandonment and Neglect of Children. Section 6782. Omitting to provide child with nec- essaries. Section 6783. Deserting child. 6784. Minors frequenting saloons. Section 6782. Every parent of any child who willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for such child, is guilty of a misdemeanor. Sec. 6783. 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 imprisonment in the Territorial prison not exceeding seven years or in a county jail not exceeding one year. Sec. 6784. Every proprietor of a saloon who allows any minor between the age of five and sixteen years to fre- quent or enter his saloon, is guilty of a misdemeanor and punishable by fine of not less than ten and not exceeding twenty-five dollars. AdminiBtovi: g drugs, etc. Cr.,4.2. CHAPTER III. Abortions. Section 6794. Administering drugs, etc., with in- tent to produce miscarriage. Section 6795. Submitting to an attempt to pro- duce miscarriage. Section 6794. Every person who provides, supplies, or administers to any pregnant woman, or procures any such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with in- tent thereby to procure the miscarriage of such woman, un- less the same is necessary to preserve her life, is punishable by imprisonment in the Territorial prison not less than two nor more than five years. 734 §§ 6795-6809 CHILD STEALING.-BIGAMY, INCEST, ETC. Tit. VIII. Ch. IV-V. Sec. 6795. Every woman who solicits of any person any ana^enTtto medicine, drug, or substance whatever, and takes the same, produce^ or who submits to any operation, or to the use of any means ^carriage. whatever, with intent thereby to procure a miscarriage, un- less the same is necessary to preserve her life, is punishable by imprisonment in the Territorial prison not less than one nor more than five years. CHAPTER IV. Child Stealing. Section 6800. Definition and punishment of child stealing. Section 6800. Every person who maliciously, forcibly or fraudulently takes or entices away a 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 charge or such child, is punishable by imprisonment in the Territorial prison not exceeding ten years, or by imprison- ment in a county jail not exceeding one year, and a fine not exceeding five hundred dollars. Child stealing definition of. Cr., 54. CHAPTER V. Bigamy, Incest, and the Crime Against Nature. Section 6805 . Bigamy defined. 6806. Exceptions. 6807. Punishment of bigamy. 6808 . Marrying a husband or wife of an- other. Section 6809. Incest. 6810. Crime against nature. 6811. Penetration sufficient to complete crime. 6812. Lewd cohabitation . Section 6805. Every person having a husband or wife living, who marries any other person, except in the cases specified in the next section, is guilty of bigamy. Sec. 6806. 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 per- son within that time to be living; nor, 2. To any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent court. Sec. 6807. Bigamy is punishable by fine not exceeding- two thousand dollars and by imprisonment in the Territori- al prison not exceeding three years. Sec. 6808. Every person who knowingly and willfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under the provi- sions of this chapter, is punishable by fine not less than two thousand dollars, or by imprisonment in the Territorial prison not exceeding three years. Sec. 6809. Persons being within the degrees of con- sanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are pun- ishable by imprisonment in the Territorial prison not exceed- ing ten years. 735 Bigamy defined. Cr., 127. Exceptions. Cr.,127, Cr., 127. Bigamy, gunishment of. r., 127. Marrying husband or wife of another. Cr., 128. Incest. Cr., L29. Tit. VIII. Ch. VI-VIL DISTURBING PEACE.-OPIUM SMOKING. g§ 6810 6830 Crime against nature. Cr., 45. Penetration, etc. N. S. Lewd cohabitation. 14 see., 1887. Sec. 6810. Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the' Territorial prison not less than five years. Sec. 6811. Any sexual penetration, however slight, is sufficient to complete the crime against nature. Sec. 6812. If any man and woman, not being married to each other, shall live and cohabit together as man and wife, or shall lewdly and notoriously associate together, such man or woman is guilty of a misdemeanor. [Act of Feb. 10, 1887. In effect June 1, 1887.] Disturbing re- ligious meetings. Cr.,123. Camp meeting, selling liquors at. Limitation of preceding section. CHAPTER VI. Disturbing Religious Meetings. Section 6822. Limitation of preceding section. Section 6820. Disturbing religious meetings. 6821. Selling liquors at camp meeting. Section 6820. Every person who willfully disturbs or dis- quiets any assemblage of people met for religious worship by noise, profane discourse, rude or indecent behavior, or by any unnecessary noise, either within the place where such meeting is held, or so near it as to disturb the order and solemnity of the meeting, is guilty of a misdemeanor. Sec. 6821. Every person who keeps or erects a booth, tent, stall, or other contrivance for the purpose of selling or otherwise disposing of any wine, or spirituous, or intoxicating liquors, or any drink of which wines, spirituous, or intoxi- cating liquors form a part, or for selling or otherwise dis- posing of any article of merchandise, or who peddles, or hawks about any such drink or article, within one mile of any camp or field meeting for religious worship, during the time of holding such meeting, is punishable by fine of not less than five nor more than five hundred dollars. Sec. 6822. The provisions of the preceding section do not apply to any person carrying on a regular business in the sale of liquors or other articles which business was established prior to the appointment of the meeting referred to in such section. \Jryt Place of resort. P UU V CHAPTER VII. Opium Smoking. Section I Section 6830. Places of resort, sale of, destruc- 6831. Purchase of opium, tion of. I 6832. Smoking of opium. Section 6830. Every white person who opens, maintains or keeps any house or place as a resort for the purpose of smoking opium, or any preparation containing opium, or who barters, sells, vends, or gives away opium, or any pre- paration containing opium for the purpose of being smoked, or that is smoked upon the premises, shall be guilty of a mis- demeanor, and upon conviction thereof, shall be punished by fine in any sum not exceeding three hundred dollars, or by imprisonment in the county jail, not exceeding six months, or by both such fine and imprisonment; and in case any such fine and the costs of prosecution are not paid, any person or persons convicted under this section and sentenced 736 ^ 6831-6840 INDECENT EXPOSURE, OBSCENE BOOKS. Tit. VIII. Ch. VIII. Destruction of. 14 ses. to pay a fine, may be held by the sheriff and compelled to work at hard labor in a chain-gang or otherwise, in charge of a keeper, upon the public highway or elsewhere, or for any person who may contract with the sheriff for such labor, until such fine and costs are fully paid, at the rate of one dollar per day for each day of ten hours hard labor, and any money so received, shall be applied to the payment of the fine and costs. And upon any conviction under this section, the court be- fore which such conviction is had, may direct the sheriff, or arresting officer, to destroy any opium, or preparation containing opium, and all pipes, utensils, implements and other things used, had or kept for use, or designed or adopted for use in smoking opium, or any such preparation that may have been used in evidence on the trial of any person con- victed under this act, or that may be found upon his person or premises. Sec. 6831. Every white person who bargains for, buys, takes or accepts any opium, or preparation containing opium in any house or place to be smoked upon the premises, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding one hundred dol- lars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. Sec. 6832. Every white person who is found in any( house, or place kept or used as a resort, or place for the purpose of smoking opium, or any preparation containing opium, without any lawful business, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding fifty dollars, or by impris- onment not exceeding three months, or by both such fine and imprisonment. [Act Feb. 10, 1887. In effect June 1, 1887.] Opium, purchase of. 14 sea. ±tfag0f. 14 ses. f?3 Z6^ 1~%- CHAPTER VIII. Indecent Exposure, Obscene Books and Prints, Disorderly Houses. and Section 6840 . Indecent exposures, exhibitions and pictures. 6841. Seizure of indecent articles author- ized. Section 6842 . Keeping disorderly houses . 6843. Publishing notices of means to pro- cure abortion or miscarriage. Every person who willfully and lewdly ImleCent ex- posures, ex- Section 6840. either: 1. Exposes his person, or the private parts thereof, in picture"8' and any public place, or in any place where there are present N- s- other person to be offended or annoyed thereby; or, 2. Procures, counsels or assists any person so to expose himself, or to take 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 to vicious or lewd thoughts or acts; or, 3. Writes, composes, stereotypes, prints, publishes, sells, distributes, keeps for sale, or exhibits any obscene or in- decent writing, paper, or book, or designs, copies, draws, engraves, paints, or otherwise prepares any obscene or in. 47 737 Tit. VIII. Ch.IX. GAMING. §§ 6841-6852 Seizure of in- decent articles authorized. N. S. Keeping dis- orderly houses. N. S. Publishing notices of means to procure abortion, etc. N. S. decent picture or print ; or moulds, cuts, casts, or otherwise makes any obscene or indecent figure; or, 4. Writes, composes, or publishes any notice or adver- tisement of any such writing, paper, book, picture, print, or figure; or, 5. Sings any lewd or obscene song, ballad, or other words, in any public place, or in any place where there are persons present to be annoyed thereby, is guilty of a mis- demeanor. Sec. 6841. Every person who is authorized or enjoined to arrest any person for a violation of subdivision 3, of the last section, is equally authorized and enjoined to seize any obscene or indecent writing, paper, book, picture, print, or figure found in possession or under the control of the per- son so arrested, and to deliver the same to the magistrate before whom the person so arrested is required to be taken. Sec. 6842. Every person who keeps any disorderly house, or any house for the purpose of assignation or pros- titution, or any house of public resort, by which the peace, comfort, or decency of the immediate neighborhood is dis- turbed, or who keeps any inn in a disorderly manner, is guilty of a misdemeanor. Sec. 6843. Every person who willfully publishes any notice or advertisement of any medicine or means for pro- ducing or facilitating a miscarriage or abortion, or for the prevention of conception, or who offers his services by any notice, advertisement, or otherwise, to assist in the accom- plishment of any such purpose, is guilty of a felony. l4v\Uaa. Gaming prohibited. Act.B'eb. 5, 18W Permitting gambling in houses, etc. N. S. Witness' privilege. N. S. CHAPTER IX. Gaming. Section 6850. Gaming prohibited. Penalty. 6851. Permitting gambling in houses own- ed or rented. Section 6852. Witness' privilege. s Section 6850. Every person who deals, plays, or carries on, opens or causes to be opened, or who conducts, either as owner or employe, whether for hire or not, any game of French monte, three card monte, E. O. or roulette, or the game commonly called the thimble game, or percentage stud-poker, or any other percentage game played with cards, dice, or any other device, for money, checks, credit, or any other representative of value, is punishable by fine of not less than one hundred nor more than three hundred dollars, and shall be imprisoned in the county jail until such fine and costs of prosecution are paid, such imprisonment not to exceed six months. Sec. 6851. Every person who knowingly permits any of the games mentioned in the preceding section to be play- ed, conducted, or dealt in any house owned or rented by such person, in whole or in part, is punishable as provided in the preceding section. Sec. 6852. No person, otherwise competent as a wit- ness, is disqualified from testifying as such concerning the offense of gaming, on the ground that such testimony may criminate himself; but no prosecution can afterwards be had against him for any offense concerning which he testified. OTHER INJURIES TO PERSONS. Tit. VIII. Ch. X. CHAPTER X. Other Injuries to Persons. Section 6860. Acts of intoxicated physicians. 6861. Willfully poisoning food, medicine, or water. 6862. Counterfeiting trade marks. 6863. Selling goods which bear counter- feit trade marks. 6864. Counterfeiting trade mark denned. 6865. Definition of phrase "trade mark," etc. 6866. Defacing marks upon logs, lumber or wood. 6867. Altering brands. 6868. Running iron. 6869. Slaughtering cattle. 6870. Persons removing skin. 6871. Persons slaughtering. 6872. Herding and grazing sheep. 6873. Contracting or solemnizing incestu- ous marriages. 6874. False return or record of marriage. Section 6875. Cruel treatment of lunatics, etc. Refusing to issue or obey writ of habeas corpus. Reconfining persons discharged upon writ of habeas corpus. Concealing persons entitled to benefit of habeas corpus. Changing brands and marks. Driving stock from range. Drover driving other stock from range. Grazing herd on occupied lands. Penalty for violation of Chapter III of Title VII of Political Code. Penalty for not keeping description and hide of slaughtered cattle. Protection against scab on sheep. Moving infected sheep. Auctioneer of live slock. Conversion of estrays. 6876. 6877. 6878. 6879. 6880. 6881. 6882. 6883. 6884. 6885. 6886. 6887. 6888. Section 6860. Every person who, in a state of intoxica- tion, does any act as such physician to another person by which the life of such other person is endangered, is guilty of a misdemeanor. Sec. 6861. Every person who willfully mingles any poison with any food, drink or medicine, with intent that the same shall be taken by 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 for a term not less than one nor more than ten years. Sec. 6862. Every person who willfully forges or counter- feits or procures to be forged or counterfeited, any trade mark usually affixed by any person to his goods, with intent to pass off any goods to which such forged or counterfeited trade mark is affixed or intended to be affixed, as the goods of such person, is guilty of a misdemeanor. Sec. 6863. Every person who sells or keeps for sale any goods upon or to which any counterfeited trade mark has been affixed, intending to represent such goods as the gen- uine goods of another, knowing the same to be counterfeited, is guilty of a misdemeanor. Sec. 6864. The phrases "forged trade mark" and "coun- terfeited trade marks," or their equivalents, as used in this Chapter, includes every alteration or imitation of any trade mark so resembling the original as to be likely to deceive. Sec. 6865. The phrase "trade mark," as used in the three preceding sections, includes every description of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label, or wrapper usually affixed by any mechanic, manu- facturer, druggist, merchant, or tradesman, to denote any goods to be goods imported, manufactured, produced, com- pounded, or sold by him, other than any name, word, or ex- pression generally denoting any goods to be of some partic- ular class or description. Sec. 6866. Every person who cuts out, alters, or de- faces any mark made upon any log, lumber, or wood, or puts a false mark thereon with intent to prevent the owner from discovering its identity, is guilty of a misdemeanor. 739 Acts of intoxi- cated • physicians. N. S. Willfully poisoning food, etc. Cr., 130. Counterfeiting trade marks. Cr., 80. Selling goods which bear counterfeit trade marks. Cr,, 81. "Counterfeited trademarks" defined. Cr.,80, 81. "Trade mark" defined. Cr., 80, 81, Defacing marks, etc., on logs. 13ses., 178. Tit. VIII. Ch. X. OTHER INJURIES TO PERSONS. §§ 6867-6877 Altering brands. Act Feb. 9, 1881. Running iron. 13 ses., 61. Slaughtering cattle. Persons remov- ing the skin. 12 ses., 126. Persons slaughtering. 12 ses., 126. Herding sheep . 12 ses., 126. Incestuous marriages. N. S. Making false return or record of marriage . Act Jan. 12, 1877. Cruel treatment of lunatics, etc. N. 8. Habeas corpus, refusing to obey. N. S. Reconfining persons, etc. N. S. Sec. 6867. Every person who marks or brand, alters, or defaces the mark or brand of any horse, mare, colt, jack, jennet, mule, bull, ox, steer, cow, calf, sheep, goat, hog, shoat or pig belonging to another, with intent thereby to steal the same or to prevent indentification thereof by the true owner, is punishable by fine not less than twenty-five nor more than three hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. Sec. 6868. Any person who uses, or has, or keeps in his possession any running branding iron, tool, or instru- ment used by him for running a brand on any live stock, or who changes or disfigures any brand with such instrument, is guilty of grand larceny and punished as provided by law. The possession of such iron or instrument is prima facie evidence of guilt. Sec. 6869. Every person who slaughters any head of cattle at any place more than one-half mile from a house or corral then in actual use is guilty of a misdemeanor. Sec. 6870. Any person other than the owner, his ser- vant or agent who skins or removes from the carcass, the skin, hide, or pelt of any neat cattle or sheep found dead or perished, is guilty of a misdemeanor. Sec. 687 1 . Any person who slaughters any head of neat cattle, before the same is distinctly marked or branded, is guilty of a misdemeanor. Sec. 6872. Any person owning or having charge of sheep who herds, grazes, or pastures the same, or permits or suffers the same to be herded, grazed or pastured on any cattle range previously occupied by cattle, or upon any range usually occupied by any cattle grower, either as a spring, summer or winter range for his cattle is guilty of a misde- meanor; but the priority of possessory right between cattle and sheep owners to any range, is determined by the priority in the usual and customary use of such range, either as a cattle or sheep range. Sec. 6873. Every person authorized to solemnize mar- riage, who willfully and knowingly solemnizes any incestu- ous or other marriage forbidden by law, is punishable by fine of not less than one hundred nor more than one thou- sand dollars, or by imprisonment in the county jail not less than three months nor more than one year, or by both. Sec. 6874. Every person authorized to solemnize any marriage, who willfully makes a false return of any mar- riage or pretended marriage to the recorder, and every per- son who willfully makes a false record of any marriage re- turn is punishable as provided in the preceding section. Sec. 6875. Every person guilty of any harsh, cruel or unkind treatment of, or any neglect of duty towards, any idiot, lunatic, or insane person, is guilty of a misdemeanor. Sec. 6876. Every officer or person to whom a writ of habeas corpus may be directed, who, after service thereof, neglects or refuses to obey the command thereof, is guilty of a misdemeanor. Sec. 6877. Every person who, either solely or as a mem- ber of a court, knowingly and unlawfully recommits, im- prisons, or restrains of his liberty, for the same cause, any 740 §§ 6878-6886 OTHEE INJUBIES TO PERSONS. Tit. VIII. Ch. X. Concealing persons entitled to habeas corpus. 8 ses., 474, Sec. 38. Changing brands and marks. 11 ses., 297. Driving stock from range. 11 see., 298. Drover driving other stock from range . Uses., 298. person who has been discharged upon a writ of habeas corpus, is guilty of a misdemeanor. Sec. 6878. Every person having in his custody or under his restraint or power, any person for whose relief a writ of habeas corpus has been issued, who, with the intent to elude the service of such writ or to avoid the effect thereof, trans- fers such person to the custody of another, or places him under the power or control of another, or conceal or changes the place of his confinement or restraint, or removes him without the jurisdiction of the court or judge issuing the writ, is guilty of a misdemeanor. Sec. 6879. Every person who changes, conceals, de- faces, disfigures, or obliterates any brand or mark pre- viously branded, impressed, or marked on any head of live stock, or puts his own or any other brand upon or over any part of any brand previously branded upon any head of live stock, or who makes, or uses any counterfeit of any brand or mark provided for by Chapter Three of Title Seven of the Political Code, is guilty of a misdemeanor. Sec. 6880. Any person, not the owner or entitled to the possession, who is found knowingly and willfully driving, riding, or leading or assisting to drive, ride or lead any head of live stock away from its usual range, unless he corrals and separates the same at the first suitable corral that can be obtained, is guilty of a misdemeanor. Sec. 6881. Any stock drover or other person engaged in driving or moving any head or drove of live stock through this Territory, who, without the owner's consent, drives or moves, or assists in driving or moving any head of live stock, the property of another person, away from its usual or accustomed range in this Territory is guilty of a misde- meanor. Sec. 6882. Any owner, or other person in charge of any hetfd or drove of live stock who willfully or negligently in- jures any resident of the Territory by driving or moving such herd or drove from any public highway, and herding Or grazing the same on land occupied and improved by any settler in possession of the same is guilty of a misdemeanor. Sec. 6883. Any person violating any of the provisions of Chapter Three of Title Seven of the Political Code as to marks and brands, is guilty of a misdemeanor and, where no other penalty is imposed, must be punished accordingly. Sec. 6884. Any person violating any of the provisions of sections 1195 or 1196 of the Political Code, is guilty of a misdemeanor. Sec. 6885. Any person who drives or causes to be driven any sheep into any county of this Territory and fails for ten days thereafter to obtain a certificate of the healthf ul- ness of such sheep, is guilty of a misdemeanor and must be fined in any sum not less than two hundred and fifty nor more than five thousand dollars and committed to the county jail at hard labor until the fine and costs are paid. Sec. 6886. Any person owning sheep infected with scab or any other infectious disease, who fails to keep the same secure from contact with other sheep, or who moves or drives the same upon any highway, by way, or across any range where other sheep are liable to range or be driven, without first obtaining a written permission of the sheep Grazing herd on occupied land. 11 ses., 299. Violation of certain chapter. 11 ses., 300. Keeping de- scription of slaughtered cattle, penalty for not. 9 ses., 37. Scab on sheep, protection against. 11 ses., 179. Moving infected sheep. 12 ses., GO. 741 Tit. VIII. Ch.X. OTHER INJURIES TO PERSONS. £§ 6887-6888 commissioner as provided in section 1221 of the Political Code, is guilty of a misdemeanor and must be fined in any sum not less than two hundred and fifty nor more than two thousand dollars. Sec. 6887. Any auctioneer failing to comply with the provisions of Chapter Eleven of Title Seven of the Political Code is guilty of a misdemeanor. Sec. 6888. Every taker up of estray property who con- verts the same to his own use before the title thereto vests in him according to law, or who knowingly and willfully violates any of the provisions of Title Nine of the Political Code, may be fined in any sum not exceeding five hundred dollars. Auctioneer of live stock. 13 sea 33. Conversion of estrays. Cornp. laws, 284. 742 §§ 6908-6912 OF CRIMES AGAINST THE PUBLIC HEALTH. Tit, IX. TITLE IX. OF CRIMES AGAINST THE PUBLIC HEALTH AND SAFETY. 6905). 6910. 69 11. 6912. 6913. 6914. 6915. 6916. 6917. 6918. 6919. 6920. 6921. 6922. Section 6923. 692-4. 6925. 6926. 6927. 6928. 6929. 6930. 6931. 6932. 6933. Engineer of locomotive engine omit- ting to ring bell when crossing highway. Intoxication of engineers, conduc- tors, or drivers of locomotives on cars . Placing passengers in cars in front of freight cars. Violation of duty by employes of railroad companies. Exposing person infected with any contagious disease in a public place. Racing upon highways. Selling liquor to Indians . Selling firearms and ammunition to Indians. Death from mischievous animals. Using or exposing animal with glan- ders. Animal having glanders to be killed. Section 6908. Death from explosions, etc. Death from collision on railroads . "Public nuisances" defined. Unequal damage. Maintaining a nuisance, a misde- meanor. Establishing or keeping pest houses within cities, towns or villages. Putting dead animals in streets, rivers, etc. Keeping gunpowder, etc. unlaw- fully. Apothecary omitting to label drugs, or labeling them wrongfully, etc. Oleomargarine, etc. Adulterating food, drugs, liquors, etc. Disposing of tainted food, etc; Sale of famished animals. Setting woods on fire. Crossing toll bridges, etc., without paying toll. Section 6908. Every person having charge of any steam boiler or steam engine, or other apparatus for gene- rating or employing steam, used in any manufactory, or on any railroad, or in any vessel, or in any kind of mechanical work, or for heating, who willfully, or from ignorance or 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 cause any other accident whereby the death of a human being is produced, is punishable by imprison- ment in the Territorial prison for not less than one nor more than ten years. Sec. 6909. Every conductor, engineer, brakeman, switchman, or other person having charge, wholly or in part, of any railroad, car, locomotive, or train, who willfully or negligently suffers or causes the same to collide with anoth- er car, locomotive or train, or with any other object or thing whereby the death of a human being is produced, is punish- able by imprisonment in the Territorial prison for not less than one nor more than ten years. Sec. 6910. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the custom- ary manner, of any navigable lake, or river, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance. Sec. 6911. An act which affects an entire community or neighborhood, or any considerable number of persons, as specified in the last section, is npt less a nuisance because the extent of the annoyance or damage inflicted upon indi- viduals is unequal. Sec. 6912. Every person who maintains or commits any public nuisance, the punishment for which is not other- wise prescribed, or who willfully omits to perform any lega 743 Death from explosions, etc. Death from collision on railroads. N. S. Public nuis- ances defined. Cr., 130. Unequal annoyance or damage. Cr., 130. Maintaining a nuisance. Cr., 130. Tit. IX. OF CRIMES AGAINST THE PUBLIC HEALTH. 5§ 6913-6919 Pest houses. N. S. Dead animals in streets. N. S. Gunpowder, unlawful keeping of. N. S. Apothecary, false labeling, etc. N. S. duty relating to the removal of a public nuisance, is guilty of a misdemeanor. Sec. 6913. Every person who establishes or keeps, or causes to be established or kept, within the limits of any city, town or village, any pest house, hospital, or place for person affected with contagious or infectious diseases, is guilty of a misdemeanor. Sec. 6914. Every person who puts the carcass of any dead animal, or the offal of any slaughter pen, corral, or butcher shop, into any river, creek, pond, street, alley, pub- lic highway or road in common use, or who attempts to de- stroy the same by fire within one-fourth of a mile of any city, town or village, is guilty of a misdemeanor. Sec. 6915. Every person who makes or keeps gunpow- der, nitro-glycerine, or other highly explosive substance, within any city or town, or who carries the same through the streets thereof, in any quantity or manner prohibited by law, or by any ordinance of such city or town, is guilty of a misdemeanor. Sec. 6916. Every apothecary, druggist, or person car- rying on business as a dealer in drugs or medicines, or per- son employed as clerk or salesman, by such person, who, in putting up any drugs or medicines, or making up any pre- scription, or filling any order for drugs or medicines, will- fully, negligently, or ignorantly omits to label the same, or puts an untrue label, stamp, or other designation of contents, upon any box, bottle, or other package containing any drugs or medicines, or substitutes a different article for any article prescribed or ordered, or puts up a greater or less quantity of any article than that prescribed or ordered, or otherwise 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 mis- demeanor, or if death ensues is guilty of a felony. Sec. 6917. Every person who sells or keeps for sale, or offers for sale, or otherwise disposes of oleomargarine, but- terine, mixture imitating butter, or adulterated butter, under the name of or under the pretense that the same is butter, or keeps for sale or manufactures oleomargarine, butterine, mixture imitating butter, or adulterated butter, without branding the same or the package in which it is contained, on the outside thereof, with the word oleomar- farine, butterine or adulterated butter, is guilty of a mis- emeanor. Sec. 6918. Every person who adulterates or dilutes any article of food, drink, drug, medicine, spirituous or malt liquor, or wine, or any article useful in compounding them with a fraudulent intent to offer the same or cause or permit it to be offered for sale as unadulterated or undiluted, and every person who fraudulently sells, or keeps or offers for sale the same, as unadulterated or undiluted, is guilty of a misdemeanor. Sec. 6919. Every person who knowingly sells, or keeps or offers for sale, or otherwise disposes of any article of food, drink, drug, or medicine, knowing the same has be- come tainted, decayed, spoiled, or otherwise unwholesome or unfit to be eaten or drank, with intent to permit the same to be eaten or drank, is guilty of a misdemeanor. Oleomargarine, butterine, etc. 13ses.,61. Adulterating food, drugs, liquors, etc. Cr.,131. Disposing of tainted food. Cr., 131. 744 ;§ 6920-6929 OF CRIMES AGAINST THE PUBLIC HEALTH. Tit IX Sec. 6920. Every person who slaughters, offers or ex- poses for sale to the public, any animal or animals that have been confined for forty-eight hours or more without proper food, or twenty hours without water, is guilty of a misdemeanor. Sec. 6921. Any person who shall willfully or care- lessly set on fire, or cause to be set on fire, any timber or Erairie lands in this Territory, thereby destroying the tim- er, grass or grain or any such lands, or any person who shall build a camp fire in any woods, or on any prairie, and leave the same without totally extinguishing such fire, or any railway company which shall permit any fire to spread from its right of way to the adjoining lands, is guilty of a misdemeanor. [Act Feb. 10, 1887. In effect June 1, 1887.] Sec. 6922. Every person not exempt from paying tolls, who crosses on any ferry or toll bridge, or passes through any toll gate, lawfully kept, without paying the toll there- for, and with intent to avoid such payment, is punishable by fine not exceeding twenty dollars. Sec. 6923. Every person in charge of a locomotive en- gine, who, before crossing any traveled public way, omits to cause a bell to ring or steam whistle to sound at the dis- tance of at least eighty rods from the crossing, and up to it, is guilty of a misdemeanor. Sec. 6924. Every person who is intoxicated while in charge of a locomotive engine, or while acting as conductor or driver upon any railroad train or car, whether propelled by steam or drawn by horses, or while acting as train dis- patcher or as telegraph operator, receiving or transmitting dispatches in relation to the movement of trains, is guilty of a misdemeanor. Sec. 6925. Every person who, in making up or running railroad trains, places or runs, or causes to be placed or run, any freight car in the rear of passenger cars, is guilty of a misdemeanor, and if loss of life or limb results from such placing or running, is guilty of felony. The term "frieght car" as used in this section, does not include a baggage, ex- press, or mail car. Sec. 6926. Every engineer, conductor, brakeman, switchtender, or other officer, agent, or servant of any rail- road company, who is guilty of any willful violation or omis- sion of his duty as such officer, agent, or servant, whereby human life or safety is endangered, the punishment of which is not otherwise prescribed, is guilty of a misde- meanor. Sec. 6927. Every person who willfully exposes himself or another afflicted with any contagious or infectious dis- ease, in any public place or thoroughfare, except in his neces- sary removal in a manner the least dangerous to the public health, is guilty of a misdemeanor. Sec. 6928. Every person driving any conveyance drawn by horses, upon any public road or way, who causes or suffers his horses to run, with intent to pass another con- veyance, or prevent such other from passing his own, is guilty of a misdemeanor. Sec. 6929. Every person who sells or furnishes, or causes to be sold or furnished, intoxicating liquors to any Indian, is guilty of a misdemeanor. 745 Sale of famished animals. Act of Jan. 27, 1883. _... Setting woods on fire. 14 ses. Crossing bridge without paying toll. N. S. Engineer to ring bell, etc. N. S. Engineer, intoxication of. N. S. Passenger car in front of freight car. N. S. Violation of duty by employes of railroad companies. N. S. Persons with contagious disease, exposing. N. S. Racing upon highways. N. S. Selling liquor to Indians. Act of Feb. 17, 1879. Tit . IX. OF CRIMES AGAINST THE PUBLIC HEALTH. §§ 6930-6933 Selling firearms to Indians . Act Feb. 17, 1879. Death f»orxi mischievous animals. N. S. Using or expos- ing animal with glanders . N. S. Animal having glanders to be killed. N. S. Sec. 6930. Every person who sells or furnishes to any Indian, any firearm, or ammunition therefor, is guilty of a misdemeanor. Sec. 6931. If the owner of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and such animal, while so at large, orAnot kept with ordinary care, kills any human being who has taken all the precautions which circum- stances permitted, or which a reasonable person would ordi- narily take in the same situation, is guilty of a felony. Sec. 6932. Any person who shall knowingly sell, or offer for sale, or use, or expose, or who shall cause or pro- cure to be sold or offered for sale, or used, or exposed, any horse, mule, or other animal having the disease known as glanders, or farcy, shall be guilty of a misdemeanor. Sec. 6933. Every animal having glanders, or farcy, shall at once be deprived of life by the owner or person hav- ing charge thereof, upon discovering or knowledge of its condition; and any such owner or person omitting or refus- ing to comply with the provision of this section, shall be guilty of a misdemeanor. 746 §S 6950-6959 OF CRIMES AGAINST THE PUBLIC PEACE. Tit. X. TITLE X. OF CRIMES AGAINST THE PUBLIC PEACE. Section 6950. "Riot" defined. 6951. "Riot" punishment of. 6952. "Rout" defined. 6953. "Unlawful assembly" defined. 6954. Punishment of rout and unlawful assembly. 6955. Remaining present at place of riot, etc., after warning to disperse. 6956. Magistrates neglecting or refusing to disperse rioters. 6957. Prize fights. Section 6958. Dog or cock fighting. Disturbing the peace in night time. Refusing to disperse upon lawful command. Exhibiting deadly weapon in rude, etc., manner, or using the same unlawfully. Forcible entry and detainer. Returning to take possession of lands after being removed by legal proceedings . 6959 6960. 6961. 6962. 6963. Section 6950. Any use of force or violence, disturbing the public peace, or any threat to use such force or vio- lence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot. Sec. 6951. Every person who participates in any riot is guilty of a misdemeanor. Sec. 6952. Whenever two or more persons, assembled and acting together, make any attempt or advance toward the commission of an act which would be a riot if actually committed, such assembly is a rout. Sec. 6953. Whenever two or more perspns assemble to- gether to do an unlawful act, separate without doing or ad- vancing toward it, or do a lawful act in a violent, boister- ous, or tumultuous manner, such assembly is an unlawful assembly. Sec. 6954. Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor. Sec. 6955. Every person remaining 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 dis- perse the same, is guilty of a misdemeanor. Sec. 6956. If a magistrate or officer, having notice of an unlawful or riotous assembly, mentioned in this Title, neglects to proceed to the place of assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for suppressing the same and ar- resting the offenders, he is guilty of a misdemeanor. Sec. 6957. Every person who engages in, instigates, encourages, or promotes any ring or prize fight, or any other premeditated fight or contention (without deadly weapons) either as principal, aid, second, umpire, surgeon, or otherwise, is punishable by imprisonment in the Territo- rial prison not exceeding two years. Sec. 6958. Every person who participates in dog or cock fighting, or who aids or abets the same by his presence, is guilty of a misdemeanor. Sec. 6959. Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offen- sive conduct, or by threatening, traducing, quarreling, chal- lenging, to fight or fighting, or who, on the public streets of any unincorporated town or village, or upon the public 747 "Riot" defined. Cr.f 122. Riot, punishment of, "Rout" defined. Cr., 122. "Unlawful assembly" defined. Cr., 121. "Rout," etc., punishment of. Cr., 121. Persons remain- ing at riot. Cr., 119. Magistrate neglecting to disperse rioters. Cr. Pr., 41. Prize fights. Cr., 39. Dog or cock fighting. Act Jan. 27, 1883. Disturbing the peace in night time. Tit.X. OF CRIMES AGAINST THE PUBLIC PEACE. §§ 6960-6963 Refusing to disperse. Cr.,119. Exhibiting deadly weapon. Cr., 40. Foroible entrv. 8 bos., p. 209*. Taking re- possession of land. N. S. highways in such unincorporated town or village, run any horse race, either for a wager or for amusement, or fires any gun or pistol in such unincorporated town or village, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor. Sec, 6960. If two or more persons assemble for the purpose of disturbing the public peace, or committing any unlawful act, and do not disperse on being desired or com- manded so to do by a public officer, the persons so offending are severally guilty of a misdemeanor. Sec 6961. Every person who, not in necessary self-de- fense, in the presence of two or more persons, draws or ex- hibits any deadly weapon in a rude, angry, and threatening manner, or who, in any manner, unlawfully uses the same, in any fight or quarrel, is guilty of a misdemeanor. Sec. 6962. Every person using or procuring, encour- aging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and in the manner allowed by law, is guilty of a misdemeanor. Sec. 6963. 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 unlawfully returns to settle, reside upon, or take possession of sucn lands, is guilty of a misdemeanor. 748 §§ 6975-6977 CRIMES AGAINST THE REVENUE OF THE TERRITORY. Tit XL TITLE XI. OF CRIMES AGAINST THE REVENUE AND PROP- ERTY OF THIS TERRITORY. Section 6975. Embezzlement and falsification of accounts by public officers. 6976. Officers neglecting to pay over pub- lic moneys. 6977. "Public moneys" as used in tbe pre- ceding section defined. 6978. Failure to pay over fines and forfeit- ures received, a misdemeanor. 6979. Refusing to give assessor list of property, or giving false name. 6980. Delivering receipts for poll taxes, etc. Section 6981. Having blank receipts for licenses, etc., other than those prescribed by law. Refusing to give name of persons in employment, etc. Carrying on business without li- cense. Neglect by tax collector. Neglect by county auditor. Selling territorial arms. 6982. 6983. 6984. 6985. 6986. Section 6975. Each officer of this Territory, or of any county, city, towns, or district of this Territory, and every other person charged with the receipt, safe keeping, trans- fer, or disbursement of public moneys, who either: 1. Without authority of law, appropriates the same or any portion thereof to his own use, or to the use of another; Or, focrrttcm, 2. Loans the same or any part thereof; or, having the possession or control of any public money, makes a profit out of, or uses the same for any purpose not authorized by law; or, 3. Fails to keep the same in his possession until disbursed or paid out by authority of law; or, 4. Deposits the same or any portion thereof in any bank, or with any banker or other person, otherwise than on spec- ial deposit; or, 5. Changes or converts any portion thereof from coin into currency, or from currency into coin or other currency, without authority of law ; or, 6. Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same; or, 7. Fraudulently alters, falsifies, conceals, destroys, or obliterates any such account; or, 8. Willfully refuses or omits to pay over, on demand, any public moneys in his hands, upon the presentation of a draft, order, or warrant drawn upon such moneys by competent authority; or, 9. Willfully omits to transfer the same, when such trans- fer is required by law; or, 10. Willfully omits or refuses to pay over to any officer or person 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 punishable by imprisonment in the Terri- torial prison for not less than one nor more than ten years, and is disqualified from holding any office in this Territory. Sec. 6976. Every officer charged with the receipt, safe keeping, or disbursement of public moneys, who neglects or fails to keep and pay over, in the manner prescribed by law, is guilty of felony. Sec. 6977. The phrase "public moneys," as used in the two preceding sections, included all bonds and evidence of indebtedness, and all moneys belonging to the Territory, or 749 Embezzlement and falsification of accounts by public officers. Cr., 70. Cr., 71. Rev. law, Sec. 99. Officers neglecting to pay over public moneys. Cr., 71. "Public moneys' defined. N. S. Tit. XL CRIMES AGAINST THE REVENUE OF THE TERRITORY. §§ 6978-6986 Failure to pay over forfeitures and fines, a misdemeanor . Act Feb. 8, 1883. Refusing to give assessor list of property. Rev. law, Sec. 08. Delivering receipts for poll tax, etc. Revenue law, Sees. 65, 83. Blank receipts other than those pre- scribed. Revenue law, Sees. 61,83. Refusing to give name of persons in employment. Rev. law, Sec. 66. Carrying on business with- out license. Rev. law, Sees. 84, 89. Cr , 150. Neglect of duty by tax collector. Rev. law, 26. Neglect of duty of auditor. Rev. Act, 48. Selling arms, etc. any city, county, town, or district therein, and all moneys, bonds, and evidences of indebtedness received or held by Territorial, county, district, city, or town officers in their official capacity. Sec. 6978. If any clerk, justice of the peace, sheriff or constable, who receives any fine or forfeiture, refuses or neglects to pay over the same according to law and within thirty days after the receipt thereof, he is guilty of a mis- demeanor. Sec. 6979. Every person who unlawfully refuses upon demand, to give to any county assessor a list of his property subject to taxation, or to swear to such list, or who gives a false name or fraudulently refuses to give his true name to any Assessor when demanded by such Assessor in the dis- charge of his official duties, is guilty of a misdemeanor. Sec. 6980. Every person who uses or gives any receipt except that prescribed by law, as evidence of the payment of any poll tax, road tax, or license of any kind, or who re- ceives payment of such tax or license without delivering the receipt prescribed by law, or who inserts the name of more than one person therein, is guilty of a misdemeanor. Sec. 6981. Every person who has in his possession with intent to circulate or sell, any blank licenses or poll tax re- ceipts other than those furnished by the proper officer, is guilty of felony. Sec. 6982. Every person who, when requested by the Collector of taxes or licenses, refuses to give to such Col- lector the name and residence of each man in his employ- ment, or to give such Collector access to the building or place where such men are employed, is guilty of a misdemeanor. Sec. 6983. Every person who commences or carries on any business, trade, profession or calling, for the transaction or carrying on of which a license is required by any law of this Territory, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor. Sec. 6984. If any Tax Collector or his deputy willfully neglects or refuses to perform any of the duties enjoined on him by the provisions of Title X of the Political Code, he is guilty of a misdemeanor in office, and shall be punished by imprisonment in the county jail not more than one year, or by a fine of not less than two hundred, nor more than one thousand dollars, or by both such fine and imprisonment, and shall be forthwith removed from office. Sec. 6985. If any county auditor neglects or refuses to perform the duties enjoined on him by the provisions of Ti- tle X of the Political Code, he is guilty of a felony; and shall be punished by imprisonment in the Territorial prison for not more than one year, or by a fine of not less than two hun- dred nor more than one thousand dollars, or by both such fine and imprisonment, and shall be forthwith removed from office. Sec. 6986. Every person who unlawfully disposes of any arms, equipments, clothing or military stores, the prop- erty of this Territory, is guilty of a misdemeanor. 750 §§ 7000-7009 AKSON. Tit. XII. Ch.I. TITLE XII. OF CRIMES AGAINST PROPERTY. CHAPTER I. Arson. Section 7000. "Arson" defined. 7001. "Building" defined. 7002. "Inhabited building" defined. 7003. "Night time" defined. 7004. "Burning" defined. 7005. Ownership of the building. Section 7006. Degrees of arson. 7007. Arson of the first degree. Arson of the second degree. 7008. Punishment of arson. 7009. Burning or destroying property in- sured. Section 7000. Arson is the willful and malicious burning of a building*, with intent to destroy it. Sec. 7001. Any house, edifice, structure, vessel, or other erection, capable of affording shelter for human beings, or appurtenant to or connected with an erection so adapted, is a "building," within the meaning of this Chapter. Sec. 7002. Any building whLch has usually been occu- pied by any person lodging therein at night is an "inhabit- ed building," within the meaning of this chapter. Sec. 7003. The phrase "night time" as used in this chapter, means the period between sunset and sunrise. Sec. 7004. To constitute a burning, within the mean- ing of this chapter, it is not necessary that the building set on fire should have been destroyed. It is sufficient that fire is applied so as to take effect upon any part of the substance of the building. Sec. 7005. To constitute arson it is not necessary that a person other than the accused should have had ownership in the building set on fire. It is sufficient that at the time of the burning another person was rightfully in possession of, or was actually occupying such building or any part thereof. Sec. 7006. Arson is divided into two degrees. Sec. 7007. Maliciously burning in the night time an inhabited building in which there is at the time some human being, is arson in the first degree. All other kinds of arson are of the second degree. Sec. 7008. Arson is punishable by imprisonment in the Territorial prison, as follows: 1. Arson in the first degree, for not less than two years and the imprisonment may be extended to life. 2. Arson in the second degree, for not less than one nor more than ten years. Sec. 7009. Every person who willfully burns, or in any other manner injures or destroys any property which is at the time insured against loss or damage by fire or by any other casualty, with intent to defraud or prejudice the insurer, whether the same be the property of or in the pos- session of such person or of any other, is punishable by im- prisonment in the Territorial prison not less than one nor more than ten years. 751 Arson defined. Cr.,56. "Building" defined. Cr., 57. "Inhabited building" defined. Cr.,56. Night time defined. Cr., 56. "Burning" defined. Cr., 56. Ownership of the building. Cr.,57. Arson, degrees of. Cr., 56. Arson, first degree . Cr., 56. Arson, second degree. Cr., 57. Arson, punishment of. Cr.,56. Cr.,57. Burning insured property. Cr., 58. Tit, XII. Ch. II-IIL BURGLARY.— BURGLARIOUS INSTRUMENTS. §£ 7014-7023 Burglary defined. Cr., 67. Burglary, degrees of. Cr., 59. Punishment of burglary. Cr..59. "Night time' defined. Cr., 59. CHAPTER II. Burglary. Section 7014. "Burglary" defined. 7015. Degrees of burglary. Section 7016. Punishment of burglary. 7017. "Night time" defined. Section 7014. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary. Sec. 7015. Every burglary committed in the night time is burglary of the first degree, and every burglary committed in the day time is burglary in the second degree. Sec. 7016. Burglary of the first degree is punishable by imprisonment in the Territorial prison for not less than one nor more than fifteen years. Burglary of the second de- gree is punishable by imprisonment in the Territorial prison for not more than five years. Sec. 7017. The phrase "night time" as used in this chapter, means the period between sunset and sunrise. Guilty posses- sion of burg- larious implements. Cr., 133. Possession of deadly weapons . Cr., 132. CHAPTER III. Having Possession of any Burglarious and Deadly Weapons. Instruments Section 7022. Guilty possession of burglarious implements. Section 7023. Having possession of deadly weap- ons with intent to commit an assault. Section 7022. Every person having upon him, or in his possession, a pick-lock, crow, key, bit, or other instrument or tool, with intent feloniously to break or enter into any building, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument above named, so that the same will fit or open the lock of a building, without being requested so to do by some person having the right to open the same, or who shall make, alter, or repair, any instrument or thing, knowing, or having reason to believe, that it is intended to be used in commit- ting a misdemeanor or felony, is guilty of misdemeanor. Any of the structures mentioned in the last chapter shall be deemed to be a building within the meaning of this section. Sec. 7023. Every person having upon him any deadly weapon with intent to assault another, is guilty of a misde- meanor. 752 §§ 7028-7030 FORGERY AND COUNTERFEITING. Tit. XII. Ch.IV. CHAPTER IV. Forgery and Counterfeiting. Section 7028. Forgery of wills, conveyances, notes, bonds, etc. Uttering forged notes, bonds, etc. Forgery of rec- ords and official returns . Making false entries in records or returns. Forgery of corporate and public seals . Punishment of forgery. Forging telegraphic messages. Passing or receiving forged notes. 7029. 7030. 7031. 7032. 7033. Section 7034. Making, passing or uttering ficti- tious bills, etc. 7035. Counterfeiting coin, bullion, etc. 7036. Punishment for counterfeiting. 7037. Possessing or receiving counterfeit coin, bullion, etc. 7038. Making or possessing counterfeit dies or plates. 7039 . Counterfeiting railroad ticket, etc . 7040. Restoring canceled tickets. Section 7028. Every person who, with intent to defraud another, falsely makes, alters, forges or counterfeits any charter, letters^atent, deed, lease, indenture, writing obli- gatory, will, testament, codicil, annuity, bond, covenant, bank bill or note, post note, check, draft, bill of exchange, contract, promissory note, due bill for the payment of mon- ey or property, receipt for money or property, passage tick- et, power of attorney, or any certificate of any share, right, or interest in the stock of any corporation or association, or any Controller's warrant for the payment of money at the treasury, county order or warrant, or request for the pay- ment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release, or receipt for money or goods, or any acquittance, release, or discharge for any debt, account, suit, action, demand, or other thing, action real or personal, or any transfer or assurance of money, certificates of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to re- ceive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, a4ien, or convey any goods, chat- tels, lands or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order, or assignment of any bond, writing obligatory, or promissory note for money or other property, or counterfeits or forges the seal or handwriting of another; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above named false, altered, forged or counterfeited matters, as above specified and de- scribed, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage or defraud any person; or who, with intent to defraud, alters, corrupts or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court, or the return of any officer to any process of any court, is guilty of forgery. Sec. 7029. Every person who, with intent to defraud another, makes, forges, or alters any entry in any book of records, or any instrument purporting to be any record or return specified in the preceding section, is guilty of forgery. Sec. 7030. Every person who, with intent to defraud another, forges, or counterfeits the seal of this Territory, the seal of any public officer authorized by law, the seal of any court of record, or the seal of any corporation, or any other public seal authorized or recognized by the laws of 48 753 Forgery of wills, convey- ances, notes, bonds, etc. Cr., 77. Uttering forged notes, etc. Forgery of records. Making false en- tries in records. Cr.,77. Forgery of public and corporate seal. Cr., 87. Tit. XII. Ch. IV. FORGERY AND COUNTERFEITING. 5§ 7031-7035 Forgery, punishment of. Cr., 77. Forging tele- graphic messages. N. S. Passing forged notes. Cr., 82. this Territory, or of any State, or other Territory, govern- ment, or country, or who falsely makes, forges or counter- feits any impression purporting to be an impression of any such seal, or who has in his possession any such counter- feited seal or impression thereof, knowing it to be counter- feited, and willfully conceals the same, is guilty of forgery. Sec. 7031. Forgery is punishable by imprisonment in the Territorial prison for not less than one nor more than fourteen years. Sec. 7032. Every person who knowingly and willfully sends by telegraph to any person a false or forged message, purporting to be from such telegraph office, or from any other person, or who willfully delivers, or causes to be de- livered to any person any such message falsely purporting to have been received by telegraph, or who furnishes or conspires to furnish, or causes to be furnished to any agent, operator, or employe, to be sent by telegraph, or to be delivered, any such message, knowing the same to be false or forged, with the intent to deceive, injure, or de- fraud another, is punishable by imprisonment in the Terri- torial prison not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding five thou- sand dollars, or by both fine and imprisonment. Sec. 7033. Every person who has in his possession, or receives from another person, any forged promissory note or bank bill, or bills, for the payment of money or property, with the intention to pass the same, or to permit, cause, or procure the same to be uttered or passed, with the intention to defraud any person, knowing the same to be forged or counterfeited, or has or keeps in his possession any blank or unfinished note or bank bill made in the form or simili- tude of any promissory note or bill for payment of money or property, made to be issued by any incorporated bank or banking company, with intention to fill up and complete such blank and unfinished note or bill, or to permit, or cause, or procure the same to be filled up and completed in order to utter or pass the same, or to permit, or cause, or procure the same to be uttered or passed, to defraud* any person, is punishable by imprisonment in the Territorial prison for not less than one nor more than fourteen years. Sec. 7034. Every person who makes, passes, utters, or publishes, with intention to defraud any other person, or who, with the like intention, attempts to pass, utter or pub- lish, or who has in his possession, with like intent to utter, pass, or publish, any fictitious bill, note, or check, purport- ing to be the bill, note, or check, or other instrument in writing for the payment of money or property of some bank, corporation, co-partnership, or individual, when, in fact, there is no such bank, corporation, co-partnership, or individual in existence, knowing the bill, note, check, or instrument in writing to be fictitious, is punishable by im- prisonment in the Territorial prison for not less than one nor more than fourteen years. Sec. 7035. Every person who counterfeits any of the species of gold or silver coin current in this Territory, or any kind of species of gold dust, gold or silver bullion, or bars, lumps, pieces, or nuggets, or who sells, passes, or gives in payment such counterfeit coin, dust, bullion, bars, Passing, making or uttering fictitious bills, etc. Cr., 83. Counterfeiting coin, bullion, etc. Cr., 78, 88. 754 5§ 7036-7040 FORGERY AND COUNTERFEITING. Tit. XII. Ch. IV. lumps, pieces, or nuggets, or permits, causes or procures the same to be sold, uttered or passed, with intention to de- fraud any person, knowing the same to be counterfeited, is guilty of counterfeiting. Sec. 7036. Counterfeiting is punishable by imprison- ment in the Territorial prison for not less than one nor more than fourteen years. Sec. 7037. Every person who has in his possession, or receives from any other person, any counterfeit gold or silver coin of the species current in this Territory, or any counterfeit gold dust, gold or silver bullion or bars, lumps, pieces, or nuggets, with the intention to sell, utter, put off, or pass the same, or permits, causes, or procures the same to be sold, uttered, or passed, with intention to defraud any person, knowing the same to be counterfeit, is punishable by imprisonment in the Territorial prison not less than one nor more than fourteen years. Sec. 7038. Every person who makes, or knowingly has in his possession any die, plate, or any apparatus, paper, metal, machine, or other thing whatever, made use of in counterfeiting coin current in this Territory, or in counter- feiting gold dust, gold or silver bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes or bills, is pun- ishable by imprisonment in the Territorial prison not less than one nor more than fourteen years; and all such dies, plates, apparatus, paper, metal, or machine, intended for the purpose aforesaid, must be destroyed. Sec. 7039. Every person who counterfeits, forges, or alters, any ticket, check, order, coupon, receipt for fare, or pass, issued by any railroad company, or by any lessee or manager thereof, designated to entitle the holder to ride in the cars of such company, or who utters, publishes, or puts into circulation, any such counterfeit or altered ticket, check, or order, coupon, receipt for fare, or pass, with intent to defraud any such railroad company, or any lessee thereof, or any other person, is punishable by imprisonment in the Territorial prison, or in the county jail, not exceeding one year, or by fine not exceeding one thousand dollars, or by both such imprisonment and fine. Sec. 7040. Every person who, for the purpose of restor- ing to its original appearance and nominal value in whole or in part, removes, conceals, fills up, or obliterates, the cuts, marks, punch-holes, or other evidence of cancellation, from any ticket, check, order, coupon, receipt for fare, or pass, issued by any railroad company, or by any lessee or manager thereof, canceled in whole or in part, with intent to dispose of by sale or gift, or to circulate the same, or with intent to defraud the railroad company, or lessees thereof, or any other person, or who, with like intent to defraud, offers for sale, or in payment of fare on the railroad of the company, such ticket, check, order, coupon, or pass, know- ing the same to have been so restored, in whole or in part, is punishable by imprisonment in the county jail, not ex- ceeding six months, or by a fine not exceeding one thous- and dollars, or by both such -tee> imprisonment and fine. Counterfeiting, punishment of. Ct.,78. Possessing counterfeit coin, etc. Cr.,79, 89. Possessing counterfeit dies, etc. Cr.,84, 88. Counterfeiting railroad ticket, etc. N. S. Kestoring can- celed tickets, etc. N. S. 755 Tit. XII. Ch. V. LARCENY. |§ 7045-7055 CHAPTER V. Larceny. " Larceny," de- fined. Cr., 61. Larceny of lost property. n. s. Grand 'and petit larceny. Cr., 61,62. Grand larceny defined. Cr., 61. Petit larceny, Cr., 62. Grand larceny, punishment of, Cr., 61. Petit larceny, punishment of, Cr.,62. Dogs property, Cr.,63. Larceny of writ- ten instruments, Cr.,64. Value of passage tickets. Cr.,04. Written instru- ments. Cr., 64. Section 7045. "Larceny" defined. 7046. Larceny of lost property. 7047. Grand and petit larceny. 7048. Grand larceny defined. 7049. Petit larceny. 7050. Punishment of grand larceny. 7051. Punishment of petit larceny. 7052. Dogs property. 7053. Larceny of written instruments. 7054. Value of passage tickets. Section 7055. Written instruments completed but not delivered. Severing and removing part of the realty declared larceny. Receiver of stolen property. Larceny committed and stolen property received out of this Ter- ritory. Stealing water. Owners of saw logs. 7056. 7057, 7058. 7059. 7060. Section 7045. Larceny is the felonious stealing, tak- ing, carrying, leading, or driving away the personal prop- erty of another. Sec. 7046. One who finds lost property under circum- stances which give him knowledge of 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 not entitled thereto, without first making reasonable and just efforts to find the owner and restore the property to him, is guilty of larceny. Sec. 7047. Larceny is divided into two degrees, the first of which is termed grand larceny; the second petit lar- ceny. Sec. 7048. Grand larceny is larceny committed in either of the following cases : 1. "When the property taken is of a value exceeding sixty dollars. 2. When the property is taken from the person of another. 3. When the property taken is a horse, mare, gelding, cow, steer, bull calf, mule, jack, goat, jenny, sheep or hog. Sec. 7049. Larceny in other cases is petit larceny. Sec. 7050. Grand larceny is punishable by imprison- ment in the Territorial prison for not less than one nor more than fourteen years. Sec. 7051. Petit larceny is punishable by fine not ex- ceedidg three hundred dollars, or by imprisonment in the county jail not exceeding six months, or both. Sec. 7052. Dogs are property, and of the value of one dollar each, within the meaning of the terms "property" and "value" as used in this chapter. Sec. 7053. If the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby, and remain- ing unsatisfied, or which in any contingency might be col- lected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recov- ered in the absence thereof, is the value of the thing stolen. Sec. 7054. If the thing stolen is any ticket or other paper, or writing entitling or purporting to entitle the holder or proprietor thereof to a passage upon any railroad or 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, is the value of such ticket, paper or writing. Sec. 7055. All the provisions of this chapter apply where the property taken is an instrument for the payment 756 7056-7066 EMBEZZLEMENT. Tit. XII. Ch. VI. Severing and re- moving part of realty. N. S. Receiver of stolen property. Cr.,65. of money, evidence of debt, public security, or passage ticket, completed and ready to be issued or delivered, although the same has never been issued or delivered by the makers thereof, to any person as a purchaser or owner. Sec. 7056. The provisions of this chapter 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 the thing had been severed by another person at some pre- vious time. Sec. 7057. Every person who, for his own gain, or to prevent the owner from again possessing his property, buys or receives any personal property, knowing the same to have been stolen, is punishable by imprisonment in the Territorial prison not exceeding five years, or in the county jail not exceeding six months, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. Sec. 7058. Every person who, in another state or coun- try, steals the property of another, or receives such proper- ty knowing it to have been stolen, and brings the same into this Territory, may be convicted and punished in the same manner as if such larceny or receiving had been committed in this Territory. Sec. 7059. Every person who, with intent to injure or defraud, connects or causes to be connected, any pipe, tube, or other instrument, with any main, service pipe, or other pipe, or conduit or flume for conducting water, for the pur- pose of taking water from such main, service pipe, conduit or flume, without the knowledge of the owner thereof, and with intent to evade payment therefor, is guilty of a mis- demeanor. Sec. 7060. Every person who willfully and without authority takes with intent to deprive the owner thereof, any saw logs, timber, lumber, railroad ties, poles, rails, posts or cordwood, owned by any other person on any river or creek, or on the land adjoining, which may have floated down a river or creek, or removes or attempts to remove such logs, timber, lumber, railroad ties, poles, rails, posts or cordwood, or otherwise destroy or injure them, is guilty of a misdemeanor. Larceny com- mitted out of Territory. Cr., 67. Stealing water. N. S. Larceny of saw- logs, cord-wood, etc. 13ses., 177. CHAPTER VI. Embezzlement. Section 7065. 7066. 7067. 7068. 7069. "Embezzlement" defined. When officer, etc., of any associa- tion, guilty of embezzlement. When carrier or other person hav- ing property for transportation, for hire, guilty of embezzlement. "When trustee, banker, etc., guilty of embezzlement. When bailee, tenant, or lodger guilty of embezzlement. 7071. 7072. Section 7070. When clerk, agent, or servant guilty of embezzlement. Distinct act of taking. v Evidence of debt undelivered may be subject of embezzlement. Claim of title a ground of defense. Intent to restore the property is no defense. But actual restoration is a ground for mitigation of punishment. Punishment for embezzlement. 70 70 ■:j. 7075. 7076. Section 7065. Embezzlement is the fraudulent appro- "Embezzie- priation of property by a person to whom it has been in- jjjeg*" euiity of ,i V "'i t ii /• i embezzlement. thereof, and every deputy, clerk, or servant of any such cr., eo. 757 Tit. XII. Ch.VI. EMBEZZLEMENT. §§ 7067-7075 Carrier, when guilty of em- bezzlement. N. S. When banker, etc., guilty of ■embezzlement. Cr., 75. officer, and every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation, (public or private) who fraudulently appropriates to any use or pur- pose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embez- zlement. Sec. 7067. Every carrier or other person having under his control personal property for -the purpose of transporta- tion for hire, who fraudulently appropriates it to any use or purpose inconsistent with the safe keeping of such property and its transportation according to his trust, is guilty of em- bezzlement, whether he has broken the package in which such property is contained, or has otherwise separated the items thereof, or not. Sec. 7068. Every trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator, or collector, or person otherwise intrusted with or having in his control property for the use of any other person, who 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, is guilty of embezzlement. Sec. 7069. Every person intrusted with any property as bailee, tenant, or lodger, or with any power of attorney for the sale or transfer thereof, who 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, is guilty of embezzlement. Sec. 7070. Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement. Sec. 7071. A distinct act of taking is not necessary to constitute embezzlement. Sec. 7072. Any evidence of debt, negotiable by de- livery only, and actually executed, is the subject of embez- zlement, whether it has been delivered or issued as a valid instrument or not. Sec. 7073. Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable. But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him. Sec* 7074. The fact that the accused intended to restore the property embezzled, is no ground of defense or of miti- gation of punishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense. Sec. 7075. Whenever, prior to any information laid be- fore a magistrate, charging the commission of embezzle- ment, the person accused voluntarily and actually restored or tendered restoration of the property alleged to have been When bailee, tenant, etc., guilty of embezzlement. Cr., 76. When clerk, agent, etc. , guilty of embezzlement. Cr., 74. Distinct act of taking. N. S. Evidence of debt undeliver- ed, subject of embezzlement. N. S. Claim of title a ground of defense. N. S. Intent to restore property no defense. N. S. Actual restor- ation, ground for mitigation of punishment. N. S. 758 7076-7084 EXTORTION. Tit. XII. Ch. VII. embezzled, or any part thereof, such fact is not a ground of defense, but it authorizes the court to mitigate punishment, in its discretion. Sec. 7076. 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 of action, the sum due upon it or secured to be paid by it shall be taken as its value; Provided, That if the embezzlement or defal- cation be of the public funds of this Territory, or of any county, city, or municipality within this Territory, the of- fense is a felony, and shall be punishable by imprisonment in the Territorial prison not less than one year nor more than ten years ; and the person so convicted shall be ineligi- ble thereafter to any office of honor, trust, or profit under this Territory. Punishment for embezzlement. N. S. CHAPTER VII. Extortion. Section 7080. * 'Extortion" defined. 7081. What threats may constitute extor- tion. 7082. Punishment of extortion in certain cases. 7083. Punishment of extortion committed under color of official right. Section 7084. Obtaining signature by means of threats . 7085. Sending threatening letters with in- tent to extort money, etc. 7086. Attempts to extort money or proper- ty by means of verbal threats. Section 7080. Extortion is the obtaining of property from another, with his consent, induced by a wrongful force, or under color of official right. Sec. 7081. Fear, such as will constitute extortion, may be induced by a threat, either: 1. To do an unlawful injury to the person or property of the individual threatened or to any relative of his, or mem- ber 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 disgrace; or, 4. To expose any secret affecting him or them. Sec. 7082. Every person who extorts any money or other property from another, under circumstances not amounting to robbery, by means of force, or any threat, such as is mentioned in the preceding section, is punishable by imprisonment in the Territorial prison not exceeding five years, or by fine not exceeding five thousand dollars, or by both. Sec. 7083. Every person who commits any extortion under color of official right, in cases for which a different punishment is not prescribed in this Code, is guilty of a mis- demeanor. Sec. 7084. Every person who, by any extortionate means, obtains from another his signature to any paper or instrument whereby, if such signature were freely given, any property would be transferred, or any debt, demand, charge, or right of action created, is punishable in the same manner as if the actual delivery of such debt, demand, charge, or right of action were obtained. 759 0^ "Extortion" defined. Cr., 113. What threats may constitute extortion . Cr.,116. Punishment of extortion in certain cases. N. S. Punishment of extortion under color of official right . N. S. Obtaining signatures by means of threats. N. S. Tit. XII. Ch. VIII. FALSE PEKSONATION AND CHEATS. §§7085-7094 Sending threatening letters with in- tent to extort money. Cr.. 110. Extorting money by means of verbal threats. Marrying under false represent tation . Cr., 98. False return of marriage. Act Jan. 12, 1877. Illegal marriage. Act Jan. 12, 1877. Falsely person- ating another in other cases. Cr., 98. Receiving property in a false character, Cr., 99. Sec. 7085. Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in this chapter, is punishable in the same manner as if such money or property were actual- ly obtained by means of such threat. Sec. 7086. Every person who unsuccessfully attempts, by means of any verbal tljjeat, such as is specified in this chapter, to extort money or^prbperty from another, is guilty of a misdemeanor. CHAPTER VIII. False Personation and Cheats. Section 7090. Marrying under false personation. 7091. Making false return of record of marriage. 7092. Illegal marriage. 7093. Falsely personating another in oth- er cases. 7094. Receiving property in a false char- acter. Section "095. Fraudulent conveyances. 7096. Obtaining money by false pretenses and by false reports of wealth, etc. 7097. Selling land twice . 7098. Married persons selling land under false representations . 7099. Consignee, false statement by. 7100. Removal of mortgaged property . Section 7090. Every person who falsely personates an- other, and in such assumed character marries or pretends to marry, or to sustain the marriage relation towards another, with or without the eenremeace of such other, is guilty of a felony. <2^Wnr<^u»*y Sec. 7091. Every person authorized to solemnize any marriage, who willfully makes a false return of any mar- riage or pretended marriage to the recorder, and every per- son who willfully makes a false record of any marriage re- turn, is punishable as provided in the preceding section. Sec. 7092. Every person who undertakes or pretends to join others in marriage, knowing that he is not by law authorized so to do, or knowing of any legal impediment to the proposed marriage, is guilty of a misdemeanor. Sec. 7093. Every person who falsely personates anoth- er, and in such assumed character, either: 1. Becomes bail or surety for such party in any proceed- ing whatever, before any court or officer authorized to take such bail or surety; or, 2. Verifies, publishes, acknowledges or proves in the name of another person, any written instrument, with the intent that the same may be recorded, delivered and used as true; or, 3. Does any 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, forfeiture or penalty, or whereby any ben- efit might accrue to the party personating, or to any other person, is punishable by imprisonment in the county jail not exceeding two years, or by a fine not exceeding five thou- sand dollars. Sec. 7094. Every person who falsely personates anoth- er, and in such assumed character receives any money or property knowing that it is intended to be delivered to the individual so personated, with intent to convert the same to his own use, or that of another person, or to deprive the owner thereof, is punishable in the same manner and to the 760 % 7095-7099 FALSE PERSONATION AND CHEATS. Tit. XII. Ch. VIII. Fraudulent conveyances, Cr., 135. Obtaining money under false pretenses . Cr., 136, 137. same extent as for larceny of the money or property so re- ceived. Sec. 7095. Every person who is a party to any fraudu- lent conveyance of any lands, tenements, or hereditaments, goods or chattels, or any right or interest issuing out of the same, or to any bond, suit, judgment or execution, contract or conveyance, had, made, or contrived with intent to de- ceive and defraud others, or to defeat, hinder or delay cred- itors or others of their just debts, damages or demands; or who, being a party as aforesaid, at any time wittingly and willingly puts in, uses, avows, maintains, justifies or de- fends the same, or any of them, as true, and done, had or made in good faith, or upon good consideration, or aliens, assigns, or sells any of the lands, tenements, hereditaments, goods, chattels, or other things before mentioned, to him or them, conveyed as aforesaid, or any part thereof, is guilty of a misdemeanor. Sec. 7096. Every person who knowingly and designed- ly, by false or fraudulent representation or pretenses, de- frauds any other person of money or property, or who causes or procures others to report falsely of his wealth or mer- cantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets into possession of money or property, is punishable by imprisonment in the county jail, not exceeding one year, and by fine not exceed- ing three times the value of the money or property so ob- tained. Sec. 7097. Every person who, after once selling, bar- tering, or disposing of any tract of land or town lot, or after executing any bond or agreement for the sale of any land or town lot, again willfully and with intent to defraud pre- vious or subsequent purchasers, sells, barters, or disposes of the same tract of land or town lot, or any part thereof, or willfully and with intent to defraud previous or subsequent purchasers, executes any bond or agreement to sell, barter, or dispose of the same land or lot, or any part thereof, to any other person for a valuable consideration, is punishable by imprisonment in the Territorial prison not less than one nor more than five years, or by fine not exceeding five thou- sand dollars or by both. Sec. 7098. Every married person who falsely and fraud- ulently represents himself or herself as competent to sell or mortgage any real estate, to the validity of which sale or mortgage the assent or concurrence of his wife or her hus- band is necessary, and under such representation willfully conveys or mortgages the same, is guilty of felony. Sec. 7099. Every commission merchant, broker, agent, factor, or consignee, who shall willfully and corruptly make, or cause to be made, to the principal or consignor of such commission merchant, agent, broker, factor, or consignee, a false statement concerning the price obtained for, or the quality or quantity of any property consigned or intrusted to such commission merchant, agent, broker, factor, or con- signee, for sale, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by fine not ex- ceeding three hundred dollars, or imprisonment in the coun- ty jail not exceeding six months, or by both such fine and imprisonment. 761 Selling land twice. Cr., 138. Married' persons selling lands under false representation &.. N. S. Consignee, false statement by. N. S. Tit. XII. Ch. IX. FALSE WEIGHTS AND MEASURES. §§ 7100-7111 Removal of mortgaged property. 13 868., 7G. Sec. 7100. Every mortgagor of property mortgaged in pursuance of the provisions of Chapter Four of Title Twelve of the Civil Code, who, while such mortgage remains unsat- isfied in whole or in part, willfully removes from the county or counties where such mortgage is recorded, or destroys, conceals, sells, or in any manner disposes of the property mortgaged, or any part thereof, without the consent of the holder of the mortgage, is guilty of larceny. CHAPTER IX. False Weights and Measures. "False weight, etc., defined. False weights and measures . Cr., 139. Using false weights or measures. Cr., 139. Stamping false weight on packages, etc. Cr., 139. Weight by ton or pound. N. S. Fraudulent scales for weighing or assaying ores. Act Feb. 5, 1885. Fraudulent alteration of value ot ores, etc. Act Feb. 5, 1885. Section 7105. "False weight" and "measure" de- fined. 7106. False weights and measures. 7107. Using false weights or measures. 7108. Stamping false weight, measure, or tare on cask or packages . Section 7109. Weight by ton or pound . 7110. Fraudulent scales for weighing or assaying ores. 7111. Fraudulent alteration of the value of ores and bills of sale and certi- ficates of such value . Section 7105. A false weight or measure is one which does not conform to the standard established by the laws of the United States of America. Sec. 7106. Every person who knowingly sells any goods, wares, or merchandise, or any valuable thing, by false weight or measure, or knowingly uses false measures at any mill in taking toll for grinding corn, wheat, rye, or other grain, is guilty of a misdemeanor. Sec. 7107. Every person who uses any weight or meas- ure, knowing it to be false, by which use another is de- frauded or otherwise injured, is guilty of a misdemeanor. Sec. 7108. Every person who knowingly marks or stamps false or short weight or measure, 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. Sec. 7109. In all sales of coal, hay, and other commo- dities, usually sold by the ton or fractional parts thereof, the seller must give to the purchaser full weight, at the rate of two thousand pounds to the ton ; and in all sales of arti- cles which are sold in commerce by avoirdupois weight, the seller must give to the purchaser full weight, at the rate of sixteen ounces to the pound ; and any person violating this section is guilty of a misdemeanor. Sec. 7110. Every person, association or corporation, or the agent of any person, association or corporation, engaged in the business of milling, sampling, concentrating, reduc- ing, shipping or purchasing ores, who keeps or uses any false or fraudulent scales or weights for weighing ore, or who keeps or uses any false or fraudulent assay scales or weights for ascertaining the assay value of ore, knowing them to be false, every person so offending is guilty of a misdemeanor, and is punishable by a fine in any sum not exceeding one thousand dollars, or by imprisonment in the county jail for a term of not more than one year, nor less than one month, or by both such fine and imprisonment. Sec. 7111. Every person, corporation or association, or the agent of any person, corporation or association, engaged in milling, sampling, concentrating, reducing, shipping or purchasing of ores in this Territory, who in any manner know- ingly alters or changes the true value of any ores delivered 762 7114-7117 FRAUDS IN MANAGEMENT OF CORPORATIONS. Tit. XII. Ch.X. to him or them, so as to deprive the seller of the result of the correct value of the same, or who issues any bill of sale or certificate of purchase that does not exactly and truth- fully state the actual weight, assay value, and total amount paid for any lot or Iocs of ore purchased, or who, by any secret understanding or agreement with another, issues a bill of sale or certificate of purchase that does not exactly and truthfully state the actual weight, assay value and total amount paid for any lot or lots of ore purchased, or who by any secret understanding or agreement with another issues a bill of sale or certificate of purchase that does not truth- fully and correctly set forth the weight, assay value and total amount paid for any lot or lots of ore purchased by him is guilty of a misdemeanor, and shall be punished as pro- vided in the preceding section. CHAPTER X. Frauds in the Management of Corporations. Section 7114. Fraud%in subscriptions for stock of corporations. 7115. Frauds in procuring organization, etc., of corporation. 7116. Unauthorized use of names in pros- pectus, etc. 7117. Misconduct of directors of stock cor- poration . 7118. Savings bank officer overdrawing his account. 7119. Receiving deposits in insolvent banks. 7120. Frauds in keeping accounts in books of corporations. Section 7121. Officer publishing 7122. 7123. 7124. 7125. 7126. 7127. of corporation false reports. Officer of corporation to permit an inspection. Director of a corporation presumed to have knowledge of its affairs. Director present at meeting, when presumed to have assented to pro- ceedings. Director absent from meeting, when presumed to have assented to pro- ceedings. Foreign corporations. "Director" defined. Section 7114. Every person who signs the name of a fictitious person to any subscription for or agreement to take stock in any corporation existing or proposed, and every person who signs to any subscription or agreement the name of any person, knowing that such person has not means or does not intend in good faith to comply with all the terms thereof, or under any understanding or agreement that the terms of such subscription or agreement are not to be com- plied with or enforced, is guilty of a misdemeanor. Sec. 7115. Every officer, agent or clerk of any corpora- tion, or of any persons proposing to organize a corporation, 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 Eublic officer or board, with intent to deceive such officer or oard in respect thereto, is guilty of a misdemeanor. Sec. 7116. Every person who, without being authorized so to do, subscribes the name of another to or inserts the name of another in any prospectus, circular or other adver- tisement, or announcement of any corporation or joint stock association, existing or intended to be formed, with intent to permit the same to be published, and thereby to lead per- sons to believe that the person whose name is so subscribed is an officer, agent, member or promoter of such corpora- tion or association, is guilty of a misdemeanor. Sec. 7117. Every director of any stock corporation who concurs in any vote or act of the directors of such corpora- tion or any of them, by which it is intended, either: 763 Frauds in subscription for stock of corporations. N. S. Frauds in pro- curing organi- zation, etc., of corporation. N. S. Unauthorized use of names in prospectus, etc. N. S. Directors, misconduct of. N. S. Tit XII. Ch.X. FRAUDS IN MANAGEMENT OF CORPORATIONS. §§7118-7122 1. To make any dividend, except from the surplus profits arising from the business of the corporation; and in the cases and manner allowed by law; or, 2. To divide, withdraw, or in any manner, except as pro- vided by law, pay to the stockholders or any of them, any part of the capital stock of the corporation; or, 3. To discount or receive any note or other evidence of debt in payment of any installment actually called in and required to be paid, or with the intent to provide the means of making such payment; or, 4. To receive or discount any note or other evidence of debt, with the intent to enable any stockholder to withdraw any part of the money paid in by him or his stock; or, 5. To receive from any other stock corporation, in exchange for the shares, notes, bonds or other evidences of debt of their own corporation, shares of the capital stock of such other corporation, or notes, bonds, or other evidences of debt issued by such other corporation, is guilty of a misde- meanor. Sec. 7118. Every officer, agent, teller, or clerk of any 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. Sec. 7119. Every officer, agent, teller, or clerk of any bank, and every individual banker, or agent, teller, or clerk of any individual banker, who receives any deposits, know- ing that such bank, or association, or banker is insolvent, is guilty of a misdemeanor. Sec. 7120. Every director, officer, or agent of any cor- poration or joint stock association who knowingly receives or possesses himself of any property of such corporation or association otherwise than inpayment of a just demand, and who, 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 corporation or association, and every di- rector, officer, agent or member of any corporation or joint stock association who, with intent to defraud, destroys, alters, mutilates or falsifies any of the books, papers, writings or securities belonging to such corporation or association, or makes or concurs in making, any false entries, or omits or concurs in omitting to make any material entry in any book of accounts, or other record or document kept by such cor- poration or association, is punishable by imprisonment in the Territorial prison not less than three nor more than ten years, or by imprisonment in a county jail not exceeding one year, or a fine not exceeding five hundred dollars, or by both such fine and imprisonment. Sec. 7121. Every director, officer or agent of any cor- poration or joint stock association, who knowingly concurs in making or publishing any written report, exhibit or state- ment of its affairs or pecuniary condition, containing any material statement which is false, is guilty of a misde- meanor. Sec. 7122. Every officer or agent of any corporation, having or keeping an office within this Territory, who has in his custody or control any book, paper or document of such corporation, and who refuses to give to a stockholder or member of such corporation, lawfully demanding, during Saviugs bank officer over- drawing his account. N. S. Receiving deposits in insolvent banks. N. S. Frauds in keep- ing accounts in books. N. S. Officer of corporation publishing false reports. N. S. Officer to permit an inspection. N. S. 764 7123-7132 MALICIOUS INJURIES TO BRIDGES, ETC. Tit. XII. Ch. XI. Director pre- sumed to have knowledge of affairs of corporation . N. S. Director present at meeting, what presumed. N. S. office hours, to inspect or take a copy of the same, or any part thereof, a reasonable opportunity so to do, is guilty of a misdemeanor. Sec. 7 1 23. 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 determine whether any act, proceeding or omission of its directors is a violation of this chapter. Sec. 7124. Every director of a corporation or a joint stock association, who is present at a meeting of the direc- tors at which any act, proceeding or omission of such di- rectors in violation of this chapter occurs, is deemed to have concurred therein, unless he at the time causes, or in writing requires his dissent therefrom to be entered in the minutes of the directors. Sec. 7125. Every director of a corporation or joint stock association, although not present at a meeting of the direc- tors at which any act, proceeding or omission of such direc- tors in violation of this chapter occurs, is deemed to have concurred therein, if the facts 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 for six months thereafter, and does not within that time cause, or in writing require, his dissent from such ille- gality to be entered in the minutes of the directors. Sec. 7126. It is no defense to a prosecution for a viola- tion of the provisions of this chapter that the corporation was one created by the laws of another Territory, State, government, or country, if it was one carrying on business or keeping an office therefor within this Territory. Sec. 7127. 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. Director absent from meeting, what presumed. N. S. Foreign corporations. N. S. "Director" defined. U.S. CHAPTER XL Malicious Injuries to Railroad Bridges, Highways, Bridges and Telegraphs. Section 7132. Injuries to railroads and railroad bridges . 7133. Injuries to highways, private ways, and bridges. 7134. Injuries to toll houses, and gates. 7135. Injuries to milestones and guide boards. Section 7136. Injuring telegraph lines. 7137. Taking water from or obstructing canals. 7138. Obstructing public road. 7139. Water across public highway. Section 7132. Every person who maliciously, either: injuries to 1. Removes, displaces, injures, or destroys any part of railroads and any railroad, whether for steam or horse cars, or any track j^08^*1^8- of any railroad, or any branch or branchway, switch, turn- out, 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 track of any railroad, or of any switch, branch, branchway, or turnout connected with any railroad; is punishable by imprisonment in the Territorial prison not exceeding five years, or in the county jail not less than six months. 765 Tit. XII. Ch.XI. MALICIOUS INJURIES TO BRIDGES, ETC. §§7133-7139 Injuries to highways, etc. Cr., 130. Injuries to toll houses. Injuries to milestones, etc. Act Feb. 1, 1881. Injuring tele graph lines. N. S. Taking water from or obstruct- ing canals. n. a Obstructing public road. 13 ses., 172. Water across public high- way. 13 ses., 173. Sec. 7133. Every person who maliciously digs up, re- moves, 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 highway or private way, is punishable by imprisonment in the Territorial prison not exceeding five years, or in the county jail not exceeding one year. Sec. 7134. Every person who maliciously injures or destroys any toll house or turnpike gate, is guilty of a mis- demeanor. Sec. 7135. Every person who maliciously removes or injures any mile board, post, or stone, or guide post, or any inscription on such, erected upon any highway, is guilty of a misdemeanor. Sec. 7136. Every person who maliciously takes down, removes, injures, or obstructs any line of telegraph or tele- phone, or any part thereof, or appurtenance or apparatus connected therewith, or severs any wire thereof, is guilty of a misdemeanor. Sec. 7137. Every person who shall without authority of the owner or managing agent, and with intent to de- fraud, take water from any canal, ditch, flume, or reser- voir, used for the purpose of holding or conveying water for manufacturing, agricultural, mining, or domestic uses, or who shall, without like authority, raise, lower, or other- wise disturb any gate or other appurtenance thereof used for the control or measurement of water, or who shall empty or place, or cause to be emptied or placed into any such canal, ditch, flume, or reservoir, any rubbish, filth, or obstruction to the free flow of the water, is guilty of a mis- demeanor. Sec. 7138. Any person who obstructs, injures, or dam- ages any public road, street or highway, either by placing obstruction therein or by digging in, deepening or devi- ating the water of any stream, or by placing any obstruc- tion in any ditch or stream within or along any public road, street or highway, or by placing or constructing any ob- struction, ditch or embankments upon their own or other lands, so as to make or cause any water to flow upon or im- pair any public road, street or highway, or rides or drives upon and along the sidewalk of any road, street or high- way, whenever such sidewalk has been graded or graveled, located or designated by any order of the Board of Commis- sioners or city council, or prepared in any other manner dedicating and designating the same for and to that par- ticular use and purpose, either by the property owner or by the public, or in any other manner injures or obstructs any public road, street or highway, is guilty of a misdemeanor. Sec. 7139. Any person who runs water across any pub- lic highway, road or street, without first constructing a good and sufficient ditch or ditches to convey the same, who fails to bridge such ditch or ditches, or to keep such bridge or bridges, or ditches in good repair, and all persons, companies or corporations who suffer any water used by them for the purpose of irrigation, or any other purposes, to flow into or upon any public highway, road or street, in any other manner than that authorized by law, is guilty of a misdemeanor, and upon conviction thereof must be fined in 766 §7139 MALICIOUS INJURIES TO BRIDGES, ETC. Tit. XII. Ch. XI. any sum not less than twenty -five nor more than fifty dol- lars, together with the costs of suit, and for a second of- fense, double said fine and costs; and it is hereby made the duty of all road supervisors, constables and marshals, to make complaint before the proper court, for violations of this section, whenever notified or having knowledge thereof. 767 Tit. XIII. MALICIOUS MISCHIEF. §§7150-7157 4yvu ^L^wv^ TITLE XIII. MALICIOUS MISCHIEF. Malicious mischief defined. Specifications in following sections. Poisoning cattle. Or., 142. Killing or tor- turing animals. Cr., 143. Cruelty to animals. Act Jan. 27, 1883. Cruelly -whip, beat, or illtreat. Act Jan. 27, 1883. Burning buildings, etc., other property, not subject of arson. Cr.. 57. Using gun- powder, etc., in destroying buildings. N. S. Section 7150. Malicious mischief in general de- fined. Specifications in following sections not restrictive of last section. Poisoning cattle. Killing, maiming, or torturing ani- mals. Cruelty to animals, penalty. Cruelly whip, beat or ill-treat the same. Burning buildings and other prop- erty not the subject of arson. Using gunpowder, etc., in destroy- ing or injuring any building. Malicious injuries to freehold. Injuries to standing crops, etc. Removing, defacing, or altering landmarks. Destroying or injuring jails. 7151. 7152. 7153. 7154. 7155. 7156. 7157. 7158. 7159. 7160. 7161. Section 7162. Destroying or injuring bridges, dams, levees, water dams, etc. Burning or injuring rafts. Setting adrift vessels. Destroying or tearing down notices, etc., before expiration of time for which they were to remain set up. Injuring or destroying written in- strument. Opening or publishing sealed letters. Disclosing contents of telegraphic messages. Altering telegraphic messages. Opening sealed envelopes contain- ing telegraphic dispatches. Injuring works of art or improve- ments in any city, town, or village. Breaking or obstructing gas or water pipes, etc. Destruction of notice or monument. 7163. 7164. 7165. 7166. 7167. 7168. 7169. 7170. 7171. 7172. Section 7150. Every person who maliciously injures or destroys any real or personal property not his own, in cases otherwise than such as are specified in this Code, is guilty of a misdemeanor. Sec. 7151. The specification of the acts enumerated in the following sections of this chapter is not intended to re- strict or qualify the interpretation of the foftowmg section. Sec. 7152. Every person who willfully administers any poison to an animal, the property of another, or maliciously exposes any poisonous substance, with the intent that the- same shall be taken or swallowed by any such animal, is punishable by imprisonment in the Territorial prison not exceeding three years, or in the county jail not exceeding one year, and a fine not exceeding five hundred dollars. Sec. 7153. Every person who maliciously kills, maims, or wounds an animal, the property of another, or who mali- ciously and cruelly beats, tortures, or injures any animal, whether belonging to himself or another, is guilty of a mis- demeanor. Sec. 7154. Every person who confines, or causes the confined, in any corral or other enclosure, without proper food for the space of forty-eight hours or more, or water for the space of twenty -four hours or more, any animal or ani- mals, is guilty of a misdemeanor. Sec. 7155. Every person who cruelly whips, beats, or otherwise unnecessarily ill-treats any animal, or worries with dog any cattle, horses, sheep or hogs, shall be guilty of a misdemeanor. Sec. 7156. Every person who willfully and maliciously burns any bridge exceeding in value fifty dollars, or any building, snowshed, or vessel, not the subject of arson, or any stack of grain of any kind, or of hay, or any growing or standing grain, grass or tree, or any fence, not the prop- erty of such person, is punishable by imprisonment in the Territorial prison for not less than one nor more than ten years. Sec. 7157. Every person who maliciously, by the explo- sion of gunpowder or other explosive substance, destroys, throws down, or injures the whole or any part of any build- 768 7158-7163 MALICIOUS MISCHIEF. Tit XIII. Malicious injuries to freeholders. Cr., 144. Injuries to standing crops. N. S. ing, by means of which the life or safety of a human being is endangered, is guilty of felony. Sec. 7158. Every person who willfully commits any trespass, by either: 1. Cutting down, destroying, or injuring any kind of wood or timber standing or growing upon the lands of an- other; or, 2. Carrying away any kind of wood or timber lying on such lands; or, 3. Maliciously injuring or severing from the freehold of another anything attached thereto, or the produce thereof; or, 4. Digging, taking, or carrying away from any lot situa- ted within the limits of any incorporated city, without the license of the owner or legal occupant thereof, any earth, soil, or stone; or, 5. Digging, taking, or carrying away from any land in any of the cities of the Territory, laid down on the map or plan of such city, or otherwise recognized or established as a street, alley, avenue, or partvwithout the license of the proper authorities, any earth, soil, or stone, is guilty of a misdemeanor. Sec. 7159. Every person who maliciously injures or destroys any standing crops, grain, cultivated fruits or veg- etables, the property of another, in any case for which a punishment is not otherwise prescribed by this Code, is guilty of a misdemeanor. Sec. 7160. Every person who either: 1. Maliciously removes any monument 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 such monument; or, 3. Maliciously cuts down or removes any tree upon which any such marks have been made for such purpose, with in- tent to destroy such marks, is guilty of a misdemeanor. Sec. 7161. Every person who willfully and intention- ally breaks down, pulls down, or otherwise destroys or in- jures any public jail or other place of confinement, is pun- ishable by fine not exceeding ten thousand dollars, and by imprisonment in the Territorial prison not exceeding five years. Sec. 7162. Every person who willfully and maliciously cuts, breaks, injures, or destroys any bridge, dam, canal, flume, aqueduct, levee, embankment, reservoir, or other structure erected to create hydraulic power, or to drain or reclaim any swamp and overflowed, or marsh land, or to conduct water for mining, manufacturing, reclamation, or agricultural purposes, or any embankment necessary to the same, or either of them; or willfully or maliciously makes, or causes to be made, any aperture in such dam, canal, flume, aqueduct, reservoir, embankment, levee, or struct- ure, with intent to injure or destroy the same, is punishable by a fine not exceeding one thousand dollars, or by impris- onment in the Territorial prison not exceeding two years, or by both. ^tU Sec. 7163. Every person who willfully or maliciously burns, injures, or destroys any pile or raft of wood, plank, 49 769 Removing, defacing, or altering landmarks. Cr., 73. Destroying or injuring jails. Cr., 147. Destroying or injuring bridges, dams, levees, water dams, etc. Cr., 14G. Burning or injuring rafts. Cr., 145. Tit. XIII. MALICIOUS MISCHIEF. 7164-7170 Destroying or tearing down notices, etc. Cr., 132. Destroying written instrument. Cr., 72. Opening or publishing sealed letters . Cr., 117. Disclosing contents of telegraphic messages. N. S. Altering telegraphic messages. N. S. Opening sealed envelopes containing telegrams. N. S. Injuring works of art, improve- ments, etc. Cr., II I. boards, or other lumber, or any part thereof, or cuts loose or sets adrift any such raft or part thereof, or cuts, breaks, injures, sinks, or sets adrift any vessel, the property of another, is punishable by fine not exceeding three hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both. Sec. 7164. Every person who intentionally defaces, obliterates, tears down, or destroys any copy or transcript, or extract from or of any law of the United States or of this Territory, or any proclamation, advertisement, or notifica- tion set up at any place in this Territory, by authority of any law of the United States or of this Territory, or by order of any court, before the expiration of the time for which the same was to remain set up, is punishable by fine not less than twenty nor more than one hundred dollars, or by im- prisonment in the county jail not more than one month. Sec. 7165. A person who maliciously mutilates, tears, defaces, obliterates, or destroys any written instrument, the property of another, the false making of which would be forgery, is punishable by imprisonment in the Territorial prison for not less than one nor more than five years. Sec. 7166. Every person who willfully opens or reads, or causes to be read, any sealed letter not addressed to him- self, without 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 the like authority, publishes any of the contents of such letter, knowing the same to have been unlawfully opened, is guilty of a misdemeanor. Sec. 7167. Every person who willfully discloses the contents of a telegraphic message, or any part thereof, ad- dressed to another person, without the permission of such person, is punishable by imprisonment in the Territorial prison not exceeding five years, or in the county jail not ex- ceeding one year, or by fine not exceeding five thousand dollars, or by both fine and imprisonment. Sec. 7168. Every person who willfully alters the pur- port, effect, or meaning of a telegraphic message, to the injury of another, is punishable as provided in the preced- ing section. Sec. 7169. Every person not connected with any tele- graph office who, without the authority or consent of the person to whom the same may be directed, willfully opens any sealed envelope inclosing a telegraphic message and ad- dressed to any other person, with the purpose of learning the contents of such message, or who fraudulently repre- sents any other person and thereby procures to be delivered to himself any telegraphic message addressed to such other person, with the intent to use, destroy, or detain the same from the person or persons entitled to receive such mes- sage, is punishable as provided in the two preceding sec- tions. Sec. 7170. Every person not the owner thereof, who willfully injures, disfigures or destroys any monument, work of art, or useful or ornamental improvement within the limits of any village, town or city, or any shade tree or or- namental plant growing therein, whether situated upon pri- vate ground, or on any street, sidewalk, or public park or place, is guilty of a misdemeanor. 770 §§ 7171-7172 MALICIOUS MISCHIEF. Tit XIII. Sec. 7171. Every person who willfully breaks, digs up, obstructs or injures any pipe or main for conducting gas or water, or any works erected for supplying buildings with gas or water, or any appurtenances or appendages therewith connected, is guilty of a misdemeanor. Sec. 7172. Every person who intentionally defaces, ob- literates, tears down or destroys any notice posted on any lode, or placer mining claim, or ditch, or water right, or lo- cation, or who removes, takes down or destroys any post or monument erected or placed to mark or indicate any such claim, right or location, or any part or boundary thereof, or part thereon, is guilty of a misdemeanor. Breaking or obstructing gas or water pipes. N. S. Destruction of notice or monument. C *y. \' TITLE XIV. §§'7185-7191 MISCELLANEOUS CRIMES. ft Willful Willful killing when c>C\AWA_/ % lAA\x$~' iSfo* Unlawful to kill, penalty. Act Feb. 8, 1883. Quail and partridges, eggs of birds, penalty. Act Feb. 8, 1883. Time during which certain game shall not be killed. Act Feb. 8, 1883. Time during which ducks shall not be killed. Act Feb. 8, 1883. Evidence of guilty. Act Feb. 8, 1883. Fishing tackle. Act Feb. 8, L883. CHAPTER I. Violation of Game and Fish Laws. Section 7185 . Willful killing of game. Penalty. 7186. Unlawful to kill. 7187. Quails and partridges. Eggs. 7188. Sage hens, pheasants, grouse, etc. 7189. Wild ducks. Geese. 7190. Evidence of guilt. 7191. Fishing tackle. 7192. Bait. Section 7193. Unlawful to use dams and nets. 7194. Penalty. 7195. Fines, how collected. 7196. Having game in possession during the time that killing is prohibited. 7197. Use of poisonous or explosive sub- stances in fishing prohibited. Section 7185. Every person who willfully shoots or otherwise causes to be killed, or offers for sale any buffalo, elk, deer, antelope or mountain sheep, between the first day of January and the first day of September in each year, is guilty of a misdemeanor, and is punishable by fine not less than twenty-five nor more than one hundred dollars for each offense committed. Sec. 7186. It is unlawful for any person at any time to kill or destroy any of the game mentioned in the last sec- tion, solely for the purpose of obtaining the hides or horns, or to chase the same with dogs or to ship the same out of the Territory for speculative purposes. Any person so do- ing is guilty of a misdemeanor and is punishable by fine in any sum not less than twenty-five nor more than one hun- dred dollars. Sec. 7187. It is not lawful for any person to kill or de- stroy any quail or partridge, or trap or carry away the same or destroy their eggs, prior to the first day of September, A. D. 1887. Any person so doing is guilty of a misdemean- or, and is punishable by fine not less than fifty nor more than one hundred dollars, for each offense, and one-half of the fines arising from the provisions of this chapter shall be given to the person informing. Sec. 7188. Every person who shoots or causes to be killed, any pheasant, grouse, or prairie chicken, between the first day of February and the fifteenth day of July of each year is guilty of a misdemeanor, and is punishable by fine not less than five dollars nor more than twenty-five dol- lars for each offense committed. Sec. 7189. Every person who willfully shoots or causes to be killed any species of wild duck or goose between the fifteenth day of April and the first day of August of each year, is guilty of a misdemeanor, and is punishable by fine not less than five nor more than twenty-five dollars for each offense committed. Sec. 7190. The possession of the dead bodies of any of the animals or birds mentioned in this chapter, by any per- son, shall be taken as prima facie evidence that such per- son is guilty of killing the same. Sec. 7191. The only lawful way that fish can be taken in any of the streams of this Territory is by fishing tackle, consisting of a rod or pole, line and hook. 772 §3 7192-7206 OF OTHER AND MISCELLANEOUS OFFENSES. Tit. XIV. Ch. II. Sec. 7192. Said hook must not be baited with any drug or substance poisonous to any kind of fish. Sec. 7193. It is unlawful for any person in this Terri- tory to make any dams, or use any nets, seines, fish-traps, or any similar device or means for catching fish, or to use any drug, poison or giant powder, or other explosive com- pounds, intending to catch, kill or destroy any species of fish; Provided, That no person is prohibited by this chapter from the catching of salmon, salmon trout, or sturgeon with seine or spear. Sec. 7194. Every person, company or corporation, guilty of violating either of the three preceding sections is guilty of a misdemeanor, and is punishable by fine not less than twenty-five nor more than one hundred dollars for each offense committed. Sec. 7195. One-half of all fines collected under this chapter must be paid into the county treasury for the bene- fit of the common schools of the county wherein the offense was committed, and one-half to the person informing the nearest magistrate that such offense has been committed. Sec. 7196. Every person who buys, sells or has in his possession any of the game enumerated in this chapter, within the time the taking or killing thereof is prohibited, except such as are tamed or kept for show or curiosity, is guilty of a misdemeanor. Sec. 7197. Every person who puts into the waters of this Territory, or who uses any poisons, or explosive sub- stances, for the purpose of taking or destroying fish, is guilty of a misdemeanor, and punished as provided in sec- tion 7194. Bait. Act Feb. 8, 1883. Unlawful^ uae / ¥ / f ^f* Penalty. Act Feb. 1883. 8, tf CXs^iAJL^ Fines, how appropriated. Act Feb. 8, 1883. Possessing game during unlawful time . N. S. Poisonous or explosive substances. N. S. ve*sx\*Jl_j CHAPTER II. Of Other and Miscellaneous Offenses. Section 7205. Neglect or postponement out of reg- ular order of telegraphic mes- sages. Agent, operator, or employe using information from messages. Clandestinely learning the contents of a telegraphic message. Vagrants. Issuing or circulating paper money. 720G. 7207. 7208. 7209. Section 7210. Sending letters threatening to ex- pose another. 7211. Abuse of school teachers . 7212. Offenses upon and against railroads. 7213. Conductor and other employes may arrest. 7214. To be taken before magistrate. Jur- isdiction. Section 7205. Every agent, operator, or employe of Neglect or any telegraph office, who willfully refuses or neglects to fiVer telegraphic send any message received at such office for transmission, messages. or willfully postpones the same out of its order, or willfully N* s* refuses or neglects to deliver any message received by tele- graph, is guilty of a misdemeanor. Nothing herein con- tained shall be construed to require any message to be re- ceived, transmitted, or delivered unless the charges thereon have been paid or tendered. Sec 7206. Every agent, operator, or employe of any tel- egraph office, who in any way uses or appropriates any in- formation derived by him from any private message passing messaged. through his hands, and addressed to any other person, or in any other manner acquired by him by reason of his trust as such agent, operator or employe, or trades or speculates upon any such information so obtained, or in any manner 773 Operator, etc., using informa- tion from Tit XIV. Ch. 11. OF OTHER AND MISCELLANEOUS OFFENSES. §§ 7207-7213 Clandestinely learning contents oi telegram. Vagrants. Act Feb. 4, 1885. turns, or attempts to turn the same to his own account, pro- fit or advantage, is guilty of a misdemeanor. Sec. 7207. Every person who, by means of any ma- chine, instrument, or contrivance, or in any other manner, willfully and fraudulently reads, or attempts to read, any message, or to learn the contents thereof, whilst the same is being sent over any telegraph line, or willfully and fraud- ulently, or clandestinely learns or attempts to learn the contents or meaning of any message, while the same is in any telegraph office, or is being received thereat or sent therefrom, or who uses or attempts to use, or communicates to others, any information so obtained, is guilty of a mis- demeanor. Sec. 7208. Every person without visible means of liv- ing, who has the physical ability to work, and who does not for the space of ten days seek employment, nor labor when employment is offered him; every healthy beggar who so- licits alms as a business; every person who roams about from place to place without any lawful business; every idle or dissolute person, or associate of known thieves, who wanders about the streets at late or unusual hours of the night, or who lodges in any barn, shed, shop, outhouse, or place other than such as is kept for lodging purposes, without the permission of the owner or party entitled to the possession thereof, every lewd and dissolute person, who lives in and about houses of ill-fame, and every common prostitute and common drunkard, is a vagrant, and s pun- ishable by imprisonment in the county jail not exceeding ninety days. Sec. 7209. Every person who makes, issues, or puts in circulation any bill, check, ticket, certificate, promissory note, or the paper of any bank, to circulate as money, ex- cept as authorized by the laws of the United States, for the first offense, is guilty of a misdemeanor, and for each and every subsequent offense, is guilty of a felony. Sec. 7210. Every person who knowingly and willfully sends or delivers to another any letter or writing, whether subscribed or not, threatening to accuse him or another of a crime, or to expose or publish any of his failings or infirmi- ties, is guilty of a misdemeanor. Sec. 7211. Every parent, guardian, or other person, who upbraids, insults or abuses any teacher of the public schools, in the presence or hearing of a pupil thereof, is guilty of a misdemeanor. Sec. 7212. (Seel.) Any person disturbing the peace of any traveler or any railway train, or breaking the seal or for- cibly entering any car, or disturbing the contents of any car, or breaking any package therein, or breaking any package left at any depot for transportation or delivery, shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not exceeding one hundred (8100.00) dollars, or by imprisonment in the county jail not exceed- ing six (G) months, or by both such fine and imprisonment. Sec. 7213. (Sec. 2.) A conductor, or other person hav- ing charge of any railway train in this Territory, section foreman or station agent of any railway company shall have power to arrest, without a warrant, any person violating any provision of Section 1 of this act. Issuing paper money. Cr., 149. Sending threat- ening letters to expose another. Cr., 116. Abuse of school teachers. N. S. Offenses against railroads. 14 868. Conductor may arrest. 14 868. 774 7214 OF OTHER AND MISCELLANEOUS OFFENSES. Tit XIV. Ch. II. Sec. 7214. (Sec. 3.) When an arrest is made without a warrant by any person authorized to make arrests under the provisions of this act, the person arrested without un- necessary delay must be taken to the most accessible magis- trate, and a complaint stating the charge against the party must be made before such magistrate, and the magistrate before whom such charge is made, if the offense is triable before him, shall have full jurisdiction over such offense and the defendant, to try and determine said offense. If he have not jurisdiction, he must send the papers and the de- fendant to the most convenient magistrate that has juris- diction, and said last named magistrate shall have full pow- er to try and determine said offense. TAct Feb. 10, 1887. In effect immediately.] 775 Jurisdiction, 14 868., Tit. XV. GENERAL PROVISIONS. 7230-7235 TITLE XV. GENERAL PROVISIONS. Acts made punishable by different pro- visions ol this code. N. S. Contempts, how punishable. N.S. Common law offenses, fines, imprisonment, etc. Cr., 151. Aiding in misdemeanors. N. S. Attempts to commit crimes, when punishable. N. S. Attempts to commit crimes, how punishable. 7231. 7232. 7233. 7234. 723 5. 7236. Section 7237. Second term of imprisonment when to commence . When term of imprisonment com- mences, etc. Civil rights of convict suspended. Civil death. Limitations on two preceding sec- tions. Person of convict protected. Forfeitures. 7238. 7239. 7240. 7241. 7242. 7243. Section 7230. Acts made punishable by different provisions of this Code. Contempts, how punishable. Offenses ; misdemeanor, how pun- ished. Aiding in misdemeanor. Attempts to commit crimes, when punishable. Attempts to commit crimes, how punishable. Restrictions upon the preceding sec- tions. Section 7230. An act or omission which is made pun- ishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecu- tion for the same act or omission under any other. Sec. 7231. A criminal act is not the less punishable as a crime because it is also declared to be punishable as a con- tempt. Sec. 7232. All offenses recognized by the common law as crimes and not herein enumerated, are punishable, in case of felony, by imprisonment in the Territorial prison for a term not less than one year nor more than five years; and in case of misdemeanors, by imprisonment in the county jail for a term not exceeding six months or less than one month, or by fine not exceeding five hundred dollars, or both such fine and imprisonment. And whenever any fine is imposed for any felony or misdemeanor, whether such be by statute or at common law, the party upon whom the fine is imposed shall be committed to the county jail, when not sentenced to the Territorial prison, until the fine is paid; and he shall be imprisoned at the rate of one day for each two dollars until such fine is paid. Sec. 7233. Whenever an act is declared a misdemeanor, and no punishment for counseling or aiding in the commis- sion of such act is expressly prescribed by law, every per- son who counsels or aids another in the commission of such act is guilty of a misdemeanor. Sec. 7234. Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such per- son in pursuance of such attempt, unless the court, in its discretion, discharges the jury and directs such person to be tried for such crime. Sec. 7235. Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the per- petration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows : 1. If the offense so attempted is punishable by imprison- ment in the Territorial prison for five years, or more, or by imprisonment in the county jail, the person guilty of such at- tempt is 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 term of imprisonment prescribed upon a conviction of the offense so attempted. 776 §§7236-7243 GENERAL PROVISIONS. Tit. XV. 2. If the offense so attempted is punishable by imprison- ment in the Territorial prison for any term less than five years, the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year. 3. If the offense so attempted is punishable by a fine, the offender convicted of such attempt is punishable by a fine 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 is punishable by imprison- ment and by a fine, the offender convicted of such attempt may be punished by both imprisonment and fine, not ex- ceeding one-half the longest term of imprisonment and one- half the largest fine which may be imposed upon a convic- tion for the offense so attempted. Sec. 7236. The last two sections do not protect a per- son 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 punish- ment prescribed by law for the crime committed. Sec. 7237. When 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. Sec. 7238. The term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual delivery of the defendant at the place of impris- onment, and if thereafter, during such term, the defendant by any legal means is temporarily released from such im- prisonment and subsequently returned thereto, the time during which he was at large must not be computed as part of such term. Sec. 7239. A sentence of imprisonment in a Territorial prison for any time 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 such imprisonment. Sec. 7240. A person sentenced to imprisonment in the Territorial prison for life is thereafter deemed civilly dead. Sec. 7241. The provisions of the last two preceding sections must not be construed to render the persons there- in mentioned incompetent as witnesses upon the trial of a criminal action or proceeding, or incapable of making and acknowledging a sale or conveyance of property. Sec. 7242. The person of a convict sentenced to im- prisonment in the Territorial prison is under the protection 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. Sec. 7243. No conviction of any person for crime works any forfeiture of any property, except in cases in which a forfeiture is expressly imposed by law; and all for- feitures to the people of this Territory, in the nature of a deodand, or where any person shall flee from justice, are abolished. 777 Cr., 158. Restrictions upon preceding sections. N. S. Second term of imprisonment, when to commence. Cr. P., 442. When term of imprisonment commences. Civil rights of convict suspended. Cr., 153. Civil death Cr., 153. Limitations on preceding sections. N. S. Person of convict protected. N. S. Forfeitures. N. S. PRELIMINARY PROVISIONS. §§7350-735& FART II.— OF CRIMINAL PROCEDURE. PRELIMINARY PROVISIONS. Person punish- able on legal conviction. Cr. P.,-5. Public offenses, how prosecuted. Cr. P., 6. Criminal action defined. Cr. P., 7. Parties to a criminal action. Cr. P., a. Party prose- cuted known as defendant. Cr. P., 9. Rights of a defendant in a criminal action. Cr. P., 10. Second prosecu- tion prohibited, when. Cr. P., 11. No person need be a witness against himself, etc. Cr. P., 12. Person not to be convicted but upon verdict. Cr. P., 13. Section 7350. No person punishable but on legal conviction. 7351. Public offenses, how prosecuted.^. 7352. Criminal action defined. 7353. Parties to a criminal action. 7354. The party prosecuted known as de- fendant. 7355. Eights of defendant in a criminal action. Section 7356. Second prosecution for the same offense prohibited. 7357. No person to be a witness against hiraself in a criminal action, or to be unnecessarily restrained. 7358. No person to be convicted but upon verdict or judgment. Section 7350. No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof. Sec. 7351. Every public offense must be prosecuted by indictment, except: 1. Where proceedings are had for the removal of civil officers of the Territory; 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 Justices' and Probate Courts. Sec. 7352. The proceedings by which a party charged with public offense is accused and brought to trial and pun- ishment, is known as a criminal action. Sec. 7353. A criminal action is prosecuted in the name of the Territory of Idaho, as a party, against the person charged with the offense. Sec. 7354. The party prosecuted in a criminal action, is designated in this Code as the defendant. Sec. 7355. In a criminal action the defendant is en- titled: 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. Sec. 7356. No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted. Sec. 7357. No person can be compelled in a criminal action, to be a witness against himself, nor can a person charged with a public offense, be subjected, before convic- tion, to any more restraint than is necessary for his deten- tion to answer the charge. Sec. 7358. No person can be convicted of a public of- fense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon a judgment of a Probate or Justice's Court, a jury having been waived, in a criminal case not amounting to a felony. 778 §§ 7368-7380 RESISTANCE.— INTERVENTION.-PEACE. Tit I. Ch. I-II-I1I. TITLE I. OF THE PREVENTION OF PUBLIC OFFENSES. CHAPTER I. Of Lawful Resistance. Section 7370. By other parties, in what cases. Section 7368. Lawful resistance, by whom made. 7369. By the party, in what cases and to what extent. Section 7368. Lawful resistance to the commission of a public offense may be made : 1. By the party about to be injured; 2. By other parties. Sec. 7369. Resistance sufficient to prevent the offense may be made by the party about to be injured: 1. To prevent an offense against his person, or his fam- ily, or some member therof. 2. To prevent an illegal attempt by force to take or in- jure property in his lawful possession. Sec. 7370. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. CHAPTER II. Of the Intervention of the Officers of Justice. Section 7375. Intervention of officers, in what cases. Section 7376. Persons acting in their aid justify. Section 7375. Public offenses may be prevented by the intervention of the officers of justice: 1. By requiring security to keep the peace; 2. By forming a police in cities and towns, and by requir- ing their attendance in exposed places; 3. By suppressing riots. Sec. 7376. When the officers of justice are authorized to act in the prevention of public offenses, other persons, who, by their command, act in their aid, are justified in so doing. CHAPTER III. Security to Keep the Peace. Section 7380. Information of threatened offense. 7381. Examination of complainant and witnesses. 7382. Warrant of arrest. 7383. Proceedings on charges being con- troverted. 7384. Person complained of, when to be discharged. 7385. Security to keep the peace, when required. 7386. Effect of giving or refusing to give security. 7387. Person committed for not. giving security, how discharged. Section 7388. Undertaking to be filed in Clerk's office. Security, when required for assault committed in the presence of a court or magistrate. Undertaking, when broken. Undertaking, when and how to be prosecuted. Evidence of breach. Security for the peace not required, except in accordance with this chapter. Force to preserve the peace at pub- lic meetings, when and how or- dered. 7389. 7390. 7391. 7392. 7393. 7394. Lawful resistance, by whom made. Cr. P., 14. By party, iD what cases and to what extent. Cr. P., 15. By other perties, in what cases. Cr. P., 16. Intervention of officers, in what cases. Cr. P., 17. Persons act in in their aid justified. Cr. P., 18. Section 7380. An information may be laid before any information of magistrate, that a person has threatened to commit an offense threatened against the person or property of another. crfp^ip. 779 TILL Ch.lIT. SECURITY TO KEEP THE PEACE. |§ 7381-7392 Examination of complainant and witness. Cr. P., 20. Warrant of arrest. Cr. P., 21. Proceedings on charges being controverted. Cr. P., 22. Person com- plained of, when to be discharged. Cr. P., 23. Security to keep the peace. Cr. P., 24, Effect of giving or refusing to give security. Cv P., 25. Person not giving security, etc. Cr. P., 26. Undertaking to be filed in clerk's office. Cr. P., 27. Security, when required for assault, etc. Cr. P., 2S. Undertaking, when broken. Cr. P., 29. Undertaking to be prosecuted, when and how. Cr. P., 30. Evidence of breach. Cr. P., 31. Sec. 7381. When the information is laid before such magistrate he must examine on oath the informer, and any witness he may produce, and must take their depositions in writing, and cause them to be subscribed by the parties making them. Sec. 7382. If it appears from the depositions that there is just reason to fear the commission of the offense threat- ened, by the person so informed against, the magistrate must issue a warrant, directed generally to the Sheriff of the county, or any constable, marshal or policeman in the Territory, reciting the substance of the information, and commanding the officer forthwith to arrest the person in- formed of and bring him before the magistrate. Sec. 7383. When the person informed against is brought before the magistrate, if the charge be controverted the magistrate must take testimony in relation thereto. The evidence must be reduced to writing and subscribed by the witnesses. Sec. 7384. If it appears that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged. Sec. 7385. If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding five thousand dollars, as the magistrate may di- rect, with one or more sufficient sureties, to keep the peace towards the people of this Territory, and particularly towards the informer. The undertaking is valid and binding for six months, and may, upon the renewal of the information, be extended for a longer period, or a new undertaking may be required. Sec. 7386. If the undertaking required by the last sec- tion is given, the party informed of must be discharged. If he does not give it, the magistrate must commit him to pris- on, specifying in the warrant the requirement to give secur- ity, the amount thereof and the omission to give the same. Sec. 7387. If the person complained of is committed for not giving the undertaking required, he may be dis- charged by any magistrate, upon giving the same. Sec. 7388. The undertaking must be filed by the mag- istrate in the office of the Clerk of the District Court. Sec. 7389. A person who, in the presence of a court or magistrate, assaults or threatens to assault another, or to commit an offense against his person, or property, may be ordered by the court or magistrate to give security, as in this Chapter provided, and if he refuse to do so, may be committed. Sec. 7390. Upon the conviction of the person informed against, of a breach of the peace, the undertaking is broken. Sec. 7391. Upon the District Attorney's producing evi- dence of such conviction to the District Court of the county the court must order the undertaking to be prosecuted, and the District Attorney must thereupon commence an action upon it in the name of the Territory of Idaho. Sec. 7392. In the action the offense stated in the record of conviction must be alleged as a breach of the undertak- ing, and such record is conclusive evidence of the breach. 780 §§ 7393-7406 SUPPRESSION OF RIOTS. Tit I Ch.1V. Sec. 7393. Security to keep the peace, or to be of good behavior, cannot be required except as prescribed in this chapter. Sec. 7394. The Mayor or other officer having the direc- tion of the police of a city or town, must order a force suf- ficient to preserve the peace, to attend any public meeting, when he is satisfied that a breach of the peace is reasonably apprehended. Security for the peace, etc. Cr. P., 32. Force to preserve the peace. Cr. P., 33. CHAPTER IV. Suppression op Riots. Section 7400. Power of Sheriff or other officer in overcoming resistence to process. 7401. The officer to certify to the court the names of the registers, etc. 7402. When Governor to order out a mili- tary force to aid in executing pro- cess. 7403. Magistrates and officers to command rioters to disperse. Section 7404. To arrest rioters if they do not dis- perse. 7405. Armed force to obey orders of whom. 7406. Governor may declare a county in insurrection. 7407. Penalty for disobeying proclama- tion. 7408. May revoke the proclamation . Section 7400. When a Sheriff or other public officer authorized to execute process finds, or has reason to appre- hend that resistence will be made to the execution of the process, he may command as many male inhabitants of his county as he may think proper to assist him in over- coming the resistance, and, if necessary, in seizing, arrest- ing and confining the persons resisting, their aid* and abet- tors. Sec. 7401. The officer must certify to the court from which the process issued, the names of the persons resisting and their aids and abettors, to the end that they may be pro- ceeded against for their contempt of court. Sec. 7402. If it appears to the Governor that the civil power of any county is not sufficient to enable the Sheriff to execute process delivered to him he must, upon the application of the Sheriff of the county, order such portion as shall be sufficient, or the whole, if necessary, of the militia of the Territory, to proceed to the assistance of the Sheriff. Sec. 7403. Where any number of persons, whether armed or not, are unlawfully or riotously assembled, the Sheriff of the county and his deputies, the officials governing the town or city, or the Justices of the Peace and constables thereof, or any of them, must go among the persons assem- bled, or as near to them as possible, and command them in the name of the people of the Territory, immediately to dis- perse. Sec. 7404. If the persons assembled do not immediately disperse, such magistrates and officers must arrest them, and to that end may command the aid of all persons present or within the county. Sec. 7405. When an armed force is called out for the purpose of suppressing an unlawful or riotous assembly, or arresting the offenders, and is placed under the temporary direction of any civil officer, it must obey the orders in rela- tion thereto of such civil officer. Sec. 7406. When the governor is satisfied that the exe- cution of civil or criminal process has been forcibly resisted in any county by bodies of men, or that combinations to re- sist the execution of process by force exists in any county, 781 clecL Power of sheriff or other /Mf^ /3 /ty Officer to certify, etc. Cr. P., 35. When governor to call out militia Cr. P., 37. Officers, etc., to command rioters to disperse. Cr. P., 38. To arrest rioters. Cr. P., 3D, 42. Armed force to obey orders. Cr. P., 43. Governor may proclaim insur- rection. Cr. P., 46. Tit. I. Ch. IV. SUPPRESSION OF RIOTS. §§ 7407-7408 and that the power of the county has exerted and has not been sufficient to enable the officer having the process, to execute it, he may, on the application of the officer, or of the district attorney, or Probate Judge of the county, by proclamation to be published in such papers as he shall direct, declare the county to be in a state of insurrection; and may order into the service of the Territory such number and des- cription of volunteer or uniform companies, or other militia of the Territory, as he shall deem necessary to serve for such term, and under the command of such officer or offi- cers as he shall direct. Sec. 740 7 . Any person who after the publication of such proclamation, resists or aids in resisting the execution of process in any county so declared to be in a state of insur- rection, or who aids or attempts the rescue or escape of any person from lawful custody or confinement, or who resists or aids in resisting any force ordered out by the Governor to quell or suppress an insurrection, shall be punished by imprisonment in the Territorial prison for a term not less than two years. Sec. 7408. The Governor may when he thinks proper, revoke the proclamation authorized by the last section, or declare that it shall cease at the time and in the manner di- rected by him. Penalty for disobeying proc- lamation. Cr. P., 43. May revoke proclamation . Cr. P., 47. 782 §§ 7425-7431 OF IMPEACHMENTS. Tit. II. Ch. I. TITLE II. PROCEEDINGS FOR THE REMOVAL OF PUBLIC OFFICERS. CHAPTER I. Of Impeachments. Section 7425. Officers liable to impeachment. 7426. Articles, how prepared. Trial by Council. 7427 . Articles of impeachment. 7428. Time of hearing. Service on de- fendant. 7429. Service, how made. 7430. Proceedings on failure to appear. 7431. Defendant, after appearance, may answer or demur. 7432. If demurrer is overruled defendant must answer. 7433 . Council to be sworn. Section 7434. Two-thirds necessary to a convic- tion. Judgment on conviction ; how pro- nounced. The same. Nature of the judgment. Effect of judgment of suspension. Officer, when impeached, disquali- fied until acquitted. Governor to temporarily fill vacancy. Impeachment not a bar to indict- ment. 7435. 7436 7437, 7438. 7439, 7440. Section 7425. Any Territorial officer, created by Terri- torial law, shall, be liable to impeachment for any misde- meanor^^ £7ffi-*-*' Sec. 7426. All impeachments must be by resolution adopted and originated in the House of Representatives, and conducted by managers elected by the House, who must prepare articles of impeachment, present them at the bar of the Council, and prosecute the same. The trial must be had before the Council, sitting as a court of impeachment. Sec. 7427. When an officer is impeached by the House of Representatives for a misdemeanor in office, the articles of impeachment must be delivered to the President of the Council. Sec. 7428. The Council must assign a day for the hear- ing of the impeachment and inform the House of Repre- sentatives thereof. The President of the Council must cause a copy of the articles of impeachment, with a notice to appear and answer the same at the time and place ap- pointed, to be served on the defendant not less than ten days before the day fixed for the hearing. Sec. 7429. The service must be made upon the defen- dant personally, or if he cannot, upon diligent inquiry, be found within the Territory, the Council, upon proof of that fact, may order publication to be made, in such manner as it may deem proper, of a notice requiring him to appear at a specified time and place, and answer the articles of im- peachment. Sec. 7430. If the defendant does not appear, the coun- cil, upon proof of service or publication, as provided in the two last sections, may of its own motion, or for cause shown, assign another day for hearing the impeachment, or may proceed, in the absence of the defendant, to trial and judg- ment. Sec. 743 1 . When the defendant appears he may in writ- ing, object to the sufficiency of the articles of impeachment, or he may answer the same by an oral plea of not guilty, which plea must be entered upon the journal, and puts in issue aid every material allegation of the articles of impeach- ment. 783 Officers subject to impeachment. Cr. P., 49. Articles, how prepared, by whom tried . Cr. P., 50. Articles of impeachment. Cr. P., 51. Time of hearing. Cr. P., 52. Service on defendant. Service, how made. Cr. P , 53. Proceedings on failure to appear. Cr. P., 54. Defendant may answer or demur, when. Cr. P., 55, 56. null. ch.i. OF IMPEACHMENTS. §§ 7423-7440 If demurrer is overruled defendant must answer. Cr. P., 57. Council to be sworn. Cr. P., 58. Conviction, two-thirds necessary. Cr. P., CO Judgment on conviction, how pronounced. Cr. P., 61. Same. Cr. P., 62. Judgment, nature of. Cr. P., 63. Effect of judgment of suspension. Cr. P., 64. Officer, when impeached, disqualified, etc. Cr. P., 65. Governor to fill vacancy. Impeachment not a bar to indictment. Cr. P., 66. Sec. 7432. If the objection to the sufficiency of the ar- ticles of impeachment is not sustained by a majority of the members of the council who heard the argument, the de- fendant must be ordered forthwith to answer the articles of impeachment. If he then pleads guilty, or refuses to plead, the council must render judgment of conviction against him. If he pleads not guilty, the council must at such time as it may appoint, proceed to try the impeachment. Sec. 7433. At the time and place appointed and before the council proceeds to act on the impeachment, the secre- tary must administer to the president of the council, and the president of the council to each of the members of the coun- cil then present, an oath truly and impartially to hear, try, and determine the impeachment; and no member of the council can act or vote upon the impeachment or upon any question arising thereon without having taken such oath. Sec. 7434. The defendant cannot be convicted on an impeachment without the concurrence of two-thirds of the members present, voting by ayes and noes, and if two- thirds of the members present do not concur in a conviction, he must be acquitted. Sec. 7435. After conviction the council must, at such time as it may appoint, pronounce judgment in the form of a resolution, entered upon the journals of the council. Sec. 7436. On the adoption of the resolution by a ma- jority of the members present who voted on the question of acquittal or conviction, it becomes the judgment of the council. Sec. 7437. The judgment may be that the defendant be suspended and removed from office, or that he be removed from office and disqualified to hold and enjoy a particular office, or class of offices, or any office in this Territory. Sec. 7438. If judgment of suspension is given, the de- fendant, during the continuance thereof, is disqualified from receiving the salary, fees, or emoluments of the office. Sec. 7439. Whenever articles of impeachment against any officer subject to impeachment are presented to the council, such officer is temporarily suspended from his office, and cannot act in his official capacity until he is ac- quitted. Upon such suspension of any Territorial officer, his office must at once be temporarily filled by an appointment made by the Governor, with the advice and consent of the council, until the acquittal of the party impeached; or, in case of his removal, until the vacancy is filled as required by law. Sec. 7440. If the offense for which the defendant is convicted on impeachment is also the subject of an indict- ment, the indictment is not barred thereby. 784 §§7445-7454 OF THE REMOVAL OF CIVIL OFFICERS. Tit.IL Ch. II. CHAPTEE II. Of the Removal of Civil Officers. Section 7445. Accusation to be presented by tbe Grand Jury. Form of accusati n. To be transmitted to tbe District Attorney, and copy served on tbe defendant. Proceedings if defendant does not appear. Defendant may object to or deny tbe accusation. Form of objection. Manner of denial. If objections overruled, defendant must answer. 7446. 7447. 7448. 7449. 7450. 7451. 7452. Section 7453. Proceedings upon plea of guilty, re- fusal to answer, or denial. Trial by jury. Territory and defendant entitled to process for witnesses. Judgment upon conviction, and ifcs form. Appeal, bow taken. Pending ap- peal, defendant to be suspended and vacancy filled. Proceedings for tbe removal of a District Attorney. Removal of public officers by sum- mary proceedings before District Courts . 7454. 7455. 7456. 7457. 7458. 7459. Section 7445. An accusation in writing against any dis- trict, county, precinct, or municipal officer, for willful or corrupt misconduct in office, may be presented by the Grand Jury of the county for or in which the officer accused is elected or appointed. Sec. 7446. The accusation must state the offense charged, in ordinary and concise language, and without repetition. Sec. 7447. The accusation must be delivered by the foreman of the Grand Jury to the District Attorney of the county, except when he is the officer accused, who must cause a copy thereof, to be served upon the defendant, and require by notice in writing, of not less than ten days, that he appear before the District Court of the county, then sit- ting or at its next term, and answer the accusation. The original accusation must then be filed with the Clerk of the District Court. Sec. 7448. The defendant must appear at the time ap- pointed in the notice and answer the accusation, unless for some sufficient cause the court assign another day for that purpose. If he does not appear, the court may proceed to hear and determine the accusation in his absence. Sec. 7449. 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. Sec. 7450. If he objects 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 presents in- telligibly the grounds of the objection. Sec. 7451. If he denies the truth of the accusation, the denial may be oral and without oath, and must be entered upon the minutes. Sec. 7452. If an objection to the sufficiency of the ac- cusation is not sustained, the defendant must answer thereto forthwith. Sec. 7453. If the defendant pleads guilty, or refuses to answer the accusation, the court must render judgment of conviction against him. If he denies the matters charged, the court must immediately, or at such time as it may ap- point, proceed to try the accusation. Sec. 7454. The trial must be by a jury, and conducted in all respects in the same manner as the trial of an indict- ment for a misdemeanor. Accusation to be presented by grand jury. Cr. P , 67. Accusation, form of. Cr. P., 68. To be transmit- ted to District Attorney, copy served on defendant. Cr. P., 69. Proceedings if defendant does not appear. Cr. P.,70 Defendant may object to or deny tbe accusation Cr. P., 71. Objection, form of. Cr. P., 72. Denial, manner of. Cr. P., 73. Objections overruled. Cr. P., 74. Proceedings upon plea of guilty. Cr. P., 75. Trial by jury. Cr. P., 76. 50 785 Tit. If. Ch.IL OF THE REMOVAL OF CIVIL OFFICERS. 7455-7459 1? Territory and defendant entitled to process. Cr. P., 77. Judgment upon conviction, and its form. Cr. P., 78. Appeal, how taken. Cr. P. 79. Pending appeal, defendant suspended. Cr. P., 79. Proceedings for removal of a district attorney. Cr. P., 80. Removal of public officers by summary proceedings. N. S. Sec. 7455. The district attorney and the defendant are respectively entitled to such process as may be necessary to enforce the attendance of witnesses as upon a trial of an in- dictment. Sec. 7456. Upon a conviction, the court must, at such time as it may appoint, pronounce judgment that the de- fendant be removed from office; but, to warrant a removal, the judgment must be entered upon the minutes, and the causes of removal must be assigned therein. Sec. 7457. From a judgment of removal an appeal may be taken to the Supreme Court, in the same manner as from a judgment in a civil action; but until such judgment is re- versed the defendant is suspended from his office. Pending the appeal, the office must be filled as in case of a vacancy. Sec. 7458. 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 foreman of the grand jury to the clerk, and by him to the District Judge of the district, who must thereupon appoint some one to act as prosecuting officer in the matter, or place the accusation in the hands of the district attorney of an adjoining county, and require him to conduct the proceedings. Sec. 7459. When an information in writing verified by the oath of any person, is presented to a District Court, al- leging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has re- fused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or some other subsequent day, not more than twenty days from that on which the information was pre- sented, must proceed to hear, in a summary manner, the in- formation and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer and such costs as are allowed in civil cases. 786 gg 7480-7484 LOCAL JURISDICTION OF PUBLIC OFFENSES. Tit. III. Ch.l. TITLE III. OF THE PROCEEDINGS IN CRIMINAL ACTIONS, PROSECUTED BY INDICTMENT, TO THE COM- MITMENT, INCLUSIVE. CHAPTER I. Of the Local Jurisdiction of Public Offenses. Section 7480. Jurisdiction of offenses committed in this Territory. 7481. When the offense is commenced without but consumated within this Territory. 7482. When an inhabitant of this Terri- tory is concerned in a duel, out of the same, and a party wounded dies therein. 7483 . When an offense is committed part- ly in one county and partly in an- other. 7484. When committed on the boundary, etc., of two or more counties. 7485 . Jurisdiction of an offense on board a vessel. 7486. Of indictment for kidnapping, en- ticing away a child, or abduction. 7487. Jurisdiction of an indictment for bigamy, or incest. 7488 . When property is feloniously taken in one county and brought into another. Section 7489. Jurisdiction of an indictment for escaping from prison. 7490. Jurisdiction of an indictment for stealing, etc., property out of this Territory and bringing it therein. 7491. Jurisdiction of an indictment for murder, etc., where the injury was inflicted in one county and the party dies out of that county. 7492 . Of an indictment against an acces- sory. 7493. Jurisdiction in cases of principals who are not present, etc., at com- mission of principal offense. 7494. Conviction or acquittal in another Territory a bar, where the juris- diction is concurrent. 7495. Conviction or acquittal in another county a bar, where the jurisdic- tion is concurrent. Section 7480. Every person is liable to punishment by the laws of this Territory, for a public offense committed by him therein, except where it is by law cognizable exclu- sively in the courts of the United States. Sec. 7481. When the commission of a public offense, commenced without the Territory, is consummated within its boundaries, the defendant is liable to punishment therefor in this Territory, though he was out of the Territory at the time of the commission of the offense charged. If he con- summated it in this Territory through the intervention of an innocent or guilty agent, or any other means proceeding directly from himself, in such case the jurisdiction is in the county in which the offense is consummated. Sec. 7482. When an inhabitant or resident of this Ter- ritory, by previous appointment or engagement, fights a duel or is concerned as second therein, out of the jurisdic- tion of this Territory; and in the duel a wound is inflicted upon a person, whereof he dies in this Territory, the juris- diction of the offense is in the county where the death hap- pens. Sec. 7483. When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county. Sec. 7484. When a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county. 787 Jurisdiction of offenses com- mitted in this Territory. Cr. P., 81. When offense commenced without the Territory, etc. Cr. P., 82. When person concerned in a duel, etc . Cr. P., 83. Offense com- mitted in different counties . Cr. P., 84. When com- mitted on boundary of two or more counties. Cr. P., 85. TitUI. Ch.I. LOCAL JURISDICTION OF PUBLIC OFFENSES. §§7485-7492 Jurisdiction of au offense on board a vessel. Cr. P., 86. Railroad train. Indictment for kidnapping, abduction, etc. Cr. P., 87. Bigamy or incest. Cr. P., 88. Property taken from one county into another. Cr. P., 89. Indictment for escaping from prison. N. S. •Jurisdiction of indictment for stealing, etc. N. S. Jurisdiction of Indictment for murder, etc. Cr., 24. Of an indictment against an accessory. Cr. P., 90. Sec. 7485. When an" offense is committed in this Ter- ritory, on board a vessel navigating a river, bay, slough, 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; and when the offense is committed in this Territory, on a railroad train or car prosecuting its trip, the jurisdiction is in any county through which the train or car passes in the course of her trip, or in the county where the trip terminates. Sec. 7486. The jurisdiction of a criminal action: 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 Territory, or to be sent out of the Ter- ritory, or from one county to another, or to be sold as a slave, or in any way held to service; or, 2. For decoying, 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 the law- ful charge of the child; or, 3. For inveigling, enticing, or taking away an unmar- ried female of previous chaste character, under the age of eighteen 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 con- sent, either for the purpose of concubinage or prostitution ; is in the county in which the offense is committed, 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 instigat- ing, procuring, promoting, or aiding in the commission of the offense, or in abetting the parties concerned therein. Sec. 7487. When the offense either of bigamy or incest, is committed in one county and the defendant is apprehend- ed in another, the jurisdiction is in either county. Sec. 7488. When property taken in one county by burglarly, robbery, larceny, or embezzlement, has been brought into another the jurisdiction of the offense is in either county. But if at any time before the conviction of the defendant in the latter, he is indicted in the former county, the Sheriff of the latter county must, upon demand, deliver him to the Sheriff of the former. Sec. 7489. The jurisdiction of a criminal action for escaping from prison, is in any county of the Territory. Sec. 7490. The jurisdiction of a criminal action for steal- ing in any other Territory the property of another or receiv- ing 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. Sec. 7491. The jurisdiction of a criminal action 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 the county where the injury was inflicted. Sec. 7492. In the case of an accessory in the commis- sion of a public offense, the jurisdiction is in the county 788 §§7493-7510 CRIMINAL ACTIONS.-INFORMA.TION. Tit. III. Gh.IIIlI. where the offense of the accessory was committed, notwith- standing the principal offense was committed in another county. Sec. 7493. The jurisdiction of a criminal action 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 so present and aiding and abetting therein. Sec. 7494. When an act charged as a public offense, is within the jurisdiction of another Territory, State, or country, as well as of this Territory, a conviction or acquit- tal thereof in the former is a bar to the prosecution or in- dictment therefor in this Territory. Sec. 7495. When an offense is within the jurisdiction of two or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment therefor in another. Jurisdiction in cases of princi- pals who are not present, etc N. S. Conviction or acquittal in another Territory. Cr. P., 91. Conviction, etc. in anotuer county. Cr. P., 92. CHAPTER II. Of the Time of Commencing Criminal Actions. Section 7500. Prosecution for murder may be commenced at any time. 7501. Limitation of three years in all oth- er felonies. 7502. Limitation of one year in misde- meanors. Section 7503. Exception when defendant is out of the Territory. 7504. Indictment found, when presented and filed. Section 7500. There is no limitation of time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the per- son killed. Sec. 7501. An indictment for any other felony than murder must be found within three years after its commis- sion. Sec. 7502. An indictment for any misdemeanor must be found within one year after its commission. . Sec. 7503. \i, when the offense is committed, the de- fendant is out of the Territory, the indictment may be found within the terms 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. Sec. 7504. An indictment is found, within the mean- ing of this chapter, when it is presented by the grand jury in open court, and there received and filed. Prosecution for murder may be commenced, when. Cr. P., 93. Other felonies, limitation of time. Cr. P., 94. Misdemeanors, time of. Cr. P., 95. Exception, when defendant out of Territory. Cr. P.,90. Indictment, when presented and filed. Cr. P., 97. CHAPTER III. The Information. Section Section 7509. Information defined. 7511. Who are magistrates 7510. Magistrate defined. Section 7509. The complaint or information is the alle- information gation in writing, made to a magistrate, that a person has £rfiped99 been guilty of some designated offense. Magistrate Sec. 7510. A magistrate is an officer having power to defiued. issue a warrant for the arrest of a person charged with a Cr< p ' 100' public offense. 789 Tit. III. CK IV. THE WARRANT OF ARREST. & 7511-7521 Who are magistrates. Cr. P., 101. Sec. 751 1. The following persons are magistrates: 1. The Justices of the Supreme Court; 2. The Probate Judges; 3. Justices of the Peace; 4. Police magistrates in towns or cities. CHAPTER IV. The Warrant of Arrest. Examination of prosecutor and witnesses. Cr. P., 102. Depositions, what to contain. Cr. P., 103. When warrant may issue. Cr. P., 104. Form of warrant . Cr. P., 105 Name and description of defendant in warrant, also offense. Cr. P., 100. Warrant. Cr. P., 107. Section 7516. Examination of the prosecutor and his witnesses upon the informa- tion. Depositions, what to contain. When warrant may issue. Form of warrant. Name or description of the defend- ant in the warrant, and statement of the offense. Warrant to be directed to and exe- cuted by peace officer. Who are peace officers . To what peace officers warrants are to be directed. 7517. 7518. 7519. 7520. 7521. 7522. 7523. Section 7524. Same ; and when, and how executed in another country. 7525. Defendant to be taken before the magistrate issuing the warrant, etc. 7529. No delay in taking defendant before magistrate. 7530. Proceedings where defendant is taken before another magistrate. 7531. Proceedings for offenses triable in another county. 7532. Duty of officer. Section 7516. When an information is laid before a mag- istrate of the commission of a public offense, triable within the county, he must examine, on oath, the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. Sec. 7517. The deposition must set forth the facts stated by the prosecutor and his witnesses, tending to estab- lish the commission of the offense and the guilt of the de- fendant. Sec. 7518. If the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest. Sec. 7519. A warrant of arrest is an order in writing, in the name of the Territory of Idaho, signed by a magis- trate, commanding the arrest of the defendant, and may be substantially in the following form: County of , Territory of Idaho, to any sheriff, constable, marshal, or policeman of said Territory, or of the County of : A complaint on oath, having this day been laid before me, by A. B., that the crime of (designating it) has been com- mitted, and accusing C. D. thereof, you are.therefore com- manded forthwith to arrest the above named C. D. and bring him before me at (naming the place), or in the case of my absence or inability to act, before the nearest or most acces- sible magistrate in this county. Dated at , this day of , eighteen Sec. 7520. The warrant must specify the name of the defendant, or, if it is unknown to the magistrate, the de- fendant may be designated therein by any name. It must also state the time of issuing it, and the county, city, or town where it is issued and be signed by the magistrate, with his name of office, and state the offense charged. Sec. 7521. The warrant must be directed to and executed by a peace officer. 790 §§ 7522-7531 THE WARRANT OF ARREST. Tit. III. Ch.1V. Sec. 7522. A peace officer is a sheriff of a county, or a constable, marshal, or policeman of a city, or town. Sec. 7523. If a warrant is issued by a Justice of the Su- preme Court, or Probate Judge, it may be directed generally to any sheriff, constable, marshal, or policeman in the Terri- tory, and may be executed by any of those officers to whom it may be delivered. Sec. 7524. If it be issued by any other magistrate it may be directed generally to any sheriff, constable, marshal, or policeman, in the county in which it is issued, and may be executed by any sheriff to whom it is directed in any county of this Territory: and when the sheriff of any county is paid by salary instead of fees, he shall receive twenty cents per mile for each mile necessarily traveled outside his county. Sec. 7525. If the offense charged is one which must afterwards be investigated by the Grand Jury, the officer making the arrest, must take the defendant before the magistrate who issued the warrant, but if such magistrate does not reside in the precinct where the offense was com- mitted or the majority of the witnesses reside, the officer having the charge of the defendant must take him and the warrant, deposition, and all papers in the case before some magistrate in such precinct for hearing and examination, or if there be no magistrate in such precinct, then before some magistrate residing in some other precinct, but all hearings on preliminary examinations, must as far as possible, be had before the magistrate most convenient to the majority of witnesses for the prosecution, unless for good cause it is or- dered to be held elsewhere, and in all such cases the pre- liminary examinations must be had as hereinafter provided, and in no case, which will come before the Grand Jury for investigations can such examination be waived, avoided or unreasonably delayed by eijbher the defendant or the people, and for taking such examinations the magistrate must be allowed thirty cents per folio. Sec. 7529. The defendant must in all cases be taken be- fore the magistrate without unnecessary delay, and any at- torney at law entitled to practice in courts of record of Idaho Territory, may, at the request of the prisoner after such arrest, visit the person so arrested. Sec. 7530. If the defendant is brought before a magis- trate other than the one who issued the warrant, the deposi- tions on which the warrant was granted must be sent to that magistrate, or, if they cannot be procured, the pros- ecutor and his witnesses must be summoned to give their testimony anew. Sec. 7531. When an information is laid before a magis- trate of the commission of a public offense, triable in another county of the Territory, but showing that the defendant is in the county where the complaint is laid, the same proceed- ings must be had as prescribed in this chapter, except that the warrant must require the defendant to be taken before the magistrate most accessible to the witnesses for the prosecution, but in the county in which the offense is triable and the depositions of the informant or prosecutor, and of the witnesses who may have been produced, must be delivered by the magistrate to the officer to whom the war- rant is delivered. Who are peace officers. Cr. P., 108. Warrants, to whom directed. Cr. P., 109. When and how executed in another county. Act Jan. 31, 1883. Defendant to be taken before magistrate. No delay in taking defend- ant before magistrate. Cr. P., 116. Proceedings where defendant is taken before another magistrate. Cr. P., 117. Proceedings for offenses triable in an- other county. 791 Til. TIL Ch. V AliREST. BY WHOM AND HOW MADE. * 7532-7543 officer, duty of . Sec. 7532. The officer who executes the warrant must take the defendant before the magistrate most accessible to the witnesses for the prosecution, but in the county in which the offense is triable, and must deliver to him the depositions and the warrant, with his return endorsed thereon, and the magistrate must then proceed in the same manner as upon a warrant issued by himself. CHAPTER V.-; Arrest. By Whom and How Made. Arrest defined, by whom made. Cr. P., 121, 122. Arrest, how made. Cr. P., 125, 12G. Arrests by peace officers. Cr. P., 131. Cr. P., 133. Arrests by private persons. Cr. P., 137. Magistrate may order arrest. Cr. P., 13G. May summon assistance. Cr. P., 123. Section. 7538. Arrest defined. By whom made. 7539. How an arrest is made and what restraint allowed. 7540. Arrests by peace officers. 7511 . Arrests by private persons. 7542. Magistrates may order arrest. 7543. Persons making arrest may sum- mon assistance. / 544. When the arrest may be made. 7545. Arrest. How made. 7546. Warrant must be shown, when. 7517. What force may be used. Section 7548. Doors and windows maybe broken, when. Same. Weapons may be taken from per- sons arrested. Duty of a private person who has made an arrest. Persons arrested without a warrant to be taken before a magistrate . Information to be filed. Arrest by telegraph. Same. 7549. 7550. 7551. 7552. 7553. 7554. Section 7538. An arrest is taking a person into custo- dy, in a case and in the manner authorized by law. An ar- rest may be made by a peace officer or by a private person. Sec. 7539. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the cus- tody of an officer. The defendant must not be subjected to any more restraint than is necessary for his arrest and de- tention. Sec. 7540. A peace officer may make an arrest in obe- dience to a warrant delivered to him, or may, without a war- rant, arrest a person : 1. For a public offense committed or attempted in his presence; 2. When a person arrested has committed a felony, al- though 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 a reasonable cause, of the commission of a felony by the party arrested; 5. At night, when there is reasonable cause to believe that he has committed a felony. Sec. 7541. 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, al- though not in his presence; 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. Sec. 7542. A magistrate may orally order a peace of- ficer or private person to arrest any one committing or at- 1» 'Minting to commit a public offense in the presence of such magistrate. Sec. 7543. Any person making an arrest may orally summon as many persons as he deems necessary to aid him 1 herein. 792 §§ 7544-7554 ARREST. BY WHOM AND HOW MADE. Tit. III. Ch. V. Sec. 7544. 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. Sec. 7545. The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or is pursued immediately after its commission, or after an escape. Sec. 7546. If the person making the arrest is acting under the authority of a warrant, he must show the war- rant, if required. Sec. 7547. When the arrest is being made by an officer under the authority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all neces- sary means to effect the arrest. Sec. 7548. To make an arrest, if the offense is a felony, a private person, if any public offense, a peace officer, may break open the door or window in which the person to be arrested is, or in which there is reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired. Sec. 7549. Any person who has lawfully entered a house for the purpose of making an arrest, may break open the door or window thereof if detained therein, when nec- essary for the purpose of liberating himself, and an officer may do the same when necessary for the purpose of liber- ating a person who, acting in his aid, lawfully entered for the purpose of making an arrest, and is detained therein. Sec. 7550. Any person making an arrest may 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. Sec. 7551. A private person who has arrested another for the commission of a public offense must, without un- necessary delay, take the person arrested before a magis- trate, or deliver him to a peace officer. Sec. 7552. When an arrest is made without a warrant by a peace officer or private person, the person arrested must without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the arrest is made, and an information, stating the charge against the person, must be laid before such magistrate. Sec. 7553. A Justice of the Supreme Court or Probate Judge may, by an indorsement under his hand upon a war- rant of arrest, authorize the service thereof by telegraph, and thereafter a telegraphic copy of such warrant may be sent by telegraph to one or more peace officers, and such copy is as effectual in the hands of an officer; and he must proceed in the same manner under it as though he held an original warrant issued by the magistrate making the in- dorsement. Sec. 7554. Every officer causing telegraphic copies of warrants to be sent must certify as correct, and file in the telegraph office from which such copies are sent, a cbpy of 793 When arrest may be made. Cr. P., 124. Arrest, how made. Cr. P., 134, 138. Warrant must be shown. Cr. P., 127. What force may be used. Doors and windows may be broken, when. Cr. P., 129, 132, 139. Doors and windows may be broken. Cr. P., 130. Weapons to be taken. N. S. Duty of private person who makes arrest. Cr. P., 140. Person arrested without warrant. Cr. P., 140. Arrested by telegraph. N. S. Arrest by telegraph. N. S. Tit. III. Ch. VI-VII. RETAKING.-EXAMINATION. §§ 7559-7568 the warrant and indorsement thereon, and must return the original with a statement of his action thereunder. Time or place in Territory, escape. Cr.P., 141. May break open door or window. Cr. P., 142. CHAPTER VI. Retaking After an Escape or Rescue. Section 7559. May be at any time or in any place in tbe Territory. Section 7560. May break open door or window if admittance refused. Section 7559. If a person arrested escape oris rescued, the person from whose custody he escaped or was rescued, may immediately pursue and retake him at any time and in any place within the Territory. Sec. 7560. To retake the person escaping or rescued, the person pursuing may break open an outer or inner door or window of a dwelling house, if, after notice of his inten- tion, he is refused admittance. CHAPTER VII. The Examination. fti Defendant's right to counsel, etc. Cr.P., 143. Sending for counsel. Cr. P., 144. Section 7565. Magistrate to inform the defendant of the charge, and his right to counsel. Time to send and sending for counsel. Examination, when to proceed. When to be completed. Postpone- ment. On postponement, defendant to be committed or discharged on bail. Form of commitment. Deposition to be read on examina- tion and subpoenas issued. Examination of witnesses to be in presence of defendant, his right to cross-examine. Exmination of defendant's witnesses Exclusion and separation of wit- nesses. Who may be present at examina- tion. Testimony, how taken and authenti- cated. 7566. 7567. 7568. 7569. 7570. 7571. 7572. 7573. 7574. 7575. 7576. Examination, when to proceed. Cr. P., 145. When to be completed. Cr.P., 146. 7578. 7579. 7580. 7581. 7582. 7583. 7584. 7585. 7586. 7587. 7588. 7589. by whom and how how and when dis- Section 7577. Deposition, kept. Defendant, charged. When and how to be committed. Order for commitment. Order for bail on commitment. Commitment, how made and to whom delivered. Form of commitment. Undertaking of witnesses to appear, when and how taken. Security for the appearance of wit- nesses, when and how required. Infants and married women may be required to give security. Witnesses to be committed on re- fusal to give security for their ap- pearance. Witness unable to give security may be examined, how. Magistrate to return depositions, etc , to the court. Section 7565. When the defendant is brought before the magistrate" on an arrest, either with or without warrant, on a charge of having committed a public offense, the magis- trate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings. Sec. 7566. He must also allow the defendant a reason- able time to send for counsel, and postpone the exam- ination for that purpose, and must, upon the request of the defendant, require a peace officer to take a message to any counsel in the township or city, the defendant may name. The officer must, without delay and without fee, perform that duty. Sec. 7567. If the defendant requires the aid of counsel, the magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appears, proceed to examine the case. Sec. 7568. The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, postpone it. The postponement cannot be for 794 §§7569-7577 THE EXAMINATION. Tit III. Ch. VII. more than two days at each time, nor more than six days Postponement in all, unless by consent or on motion of the defendant. Sec. 7569. If a postponement is had, the magistrate must commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this Code, as security for his appear- ance at the time to which the examination is postponed. Sec. 7570. The commitment for examination is made by an indorsement, signed by the magistrate on the war- rant of arrest, to the following effect: "The within named A. B. having been brought before me under this warrant, is committed for examination to the sheriff of — ." If the sheriff is not present, the de- Defendant to be $&> *U commited, when. Cr. P., 147. Commitment, p/ % form of Cr. P., 148. f endant may be committed to the custody of a peace officer. Sec. 7571. At the examination, the magistrate must first read to the defendant the depositions of the witnesses examined on taking the information. He must also issue subpoenas, subscribed by him, for witnesses within the Territory, required either by the prosecution or the defense. Sec. 7572. The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf. Sec. 7573. When the examination of witnesses on the part of the people is closed, any witnesses the defendant may produce must be sworn and examined. Sec. 7574. While a witness is under examination, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept sep- arate, and to be prevented from conversing with each other until they are all examined. Sec. 7575. The magistrate must also, upon the request of the defendant, exclude from the examination every per- son except his clerk, the prosecution and his counsel, the Attorney General, the District Attorney of the county, the defendant and his counsel, and the officer having the de- fendant in custody. Sec. 7576. In all cases which must afterwards be in- vestigated by the grand jury, the examination must be taken, and cannot be waived or unreasonably delayed by either party and the testimony must be reduced to writing, as a deposition, by the magistrate, or under his direction, and authenticated in the following form : 1. It must state the name of the witness, his place of resi- dence, and his business or profession ; 2. It must contain the questions put to the witness and his answers thereto, each answer being distinctly read to him as it is taken down, and being corrected or added to until it conforms to what he declares is the truth ; 3. If a question put be objected to on either side and overruled, or the witness declines answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated ; 4. The deposition must be signed by the witness, or if he refuses to sign it, his reason for refusing must be stated in writing as he gives it. 5. It must be signed and certified by the magistrate. Sec. 7577. The magistrate must keep the depositions taken on the information or on the examination, until they 795 Depositions to be read on examination. Cr. P., 14<). Examination of witnesses. Cr.P.,150. Defendant's witnesses. Cr. P., 156. Exclusion of witnesses. Cr. P., 157. Who may be present at examination. ft V Testimony, how taken and authenticated. N. S. Depositions, by whom and how kept. N. S. t/6 Tit. III. Ch. VII. THE EXAMINATION. §§7578-7585 ' ' ?7* f7^ are returned to the proper court; and must not permit them to be examined or copied by any person except a Judge of a Court having jurisdiction of the offense, or authorized to is- sue writs of habeas corpus, the Attorney General, District Attorney, or other prosecuting attorney, and the defendant and his counsel. Defendant, Sec. 7578. If, after hearing the proofs, it appears either aih6b r"ed^°w ^at no public offense has been committed or that there is Cr.cp!?i5i.f not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged, by an indorsement on the deposition signed by him, to the following effect: ' 'There being no sufficient cause to believe the within named A. B. guilty of the offense within mentioned, I order him to be discharged." when and Sec. 7579. If, however, it appears from the examina- now to be tion that a public offense has been committed, and there is c°mi\! loo. sufficient cause to believe the defendant guilty thereof, the magistrate must endorse on the depositions an order, signed by him, to the following effect: "It appearing to me that the offense in the within depositions mentioned (or any offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe that the within named A. B. guilty thereof, I order that he be held to answer the same." order for Sec. 7580. If the offense is not bailable, the following cT^ioi"1' words must be added to the indorsement: "And he is here- by committed to the sheriff of the county of ." order for ban Sec. 7581. If the offense is bailable, and the defendant cl™™wtvnt' is admitted to bail, the following words must be added to the order endorsed on the deposition: "And that he is ad- mitted to bail in the sum of dollars, and is committed to the sheriff of the county of , until he gives such bail." commitment, Sec. 7582. If the magistrate order the defendant to be towSm ? and committed, he must make out a commitment, signed by him, c?1 pei'i64 with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or, if that officer is not present, to a peace officer, who must deliver the defend- ant into the proper custody, together with the commitment, commitment, Sec. 7583. The commitment must be to the following c°rriP.°fi65. effect: "County of (as the case may be). The Territory of Idaho to the sheriff of the county of : 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, and giving as near as may be the time when, and the place where the same was committed), you are com- manded to receive him into your custody and detain him until he is legally discharged. Dated this day of , eighteen . undertaking oi Sec. 7584. On holding the defendant to answer, the ami'arfeto0 magistrate may take from each of the material witnesses cr. p., 166. examined before him on the part of the people a written un- dertaking, to the effect that he will appear and testify at the court to which the depositions and statements are to be sent, or that he will forfeit the sum of five hundred dollars. ourityfor Sec. 7585. When the magistrate or a Judge of the wifnesa^H00 of Court in which the action is pending is satisfied, by proof on cr. p., kj7. oath, that there is reason to believe that any such witness 796 ??(* V77 rn §§ 7586-7589 THE EXAMINATION. Tit. III. Ch. VII. will not appear and testify unless security is required, he may order the witness to enter into a written undertaking, with sureties, in such sum as he may deem proper, for his appearance as specified in the preceding section. Sec. 7586. Infants and married women, who are ma- terial witnesses against the defendant, may be required to procure sureties for their appearance, as provided in the last section. Sec. 7587. If a witness, required to enter into an un- dertaking to appear and testify, either with or without sure- ties, refuses compliance with the order for that purpose, the magistrate must commit him to prison until he complies or is legally discharged. Sec. 7588. When, however, it satisfactorily appears by examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people. Such examination must be by question and answer in the presence of the defendant, or after notice to him, if on bail, and conducted in the same manner as the examination be- fore a committing magistrate is required by this Chapter to be conducted, and the witness thereupon be discharged; but this section does not apply to an accomplice in the commis- sion of the offense charged. Sec. 7589. When a magistrate has discharged a de- fendant or has held him to answer, he must return, without delay, to the Glerk of the Court at which the defendant is required to appear, the warrant, if any, the depositions, and all undertakings of bail or for the appearance of witnesses taken by him. Infants, etc., to give security. Cr. P., 168. Witness to be committed, when. Witness unable to give security may be conditionally examined. Cr. P., 170. tin- Magistrates to return depositions, etc. to court. Cr. P., 172. y?d 797 Tit. IV. Ch. I-II. PRELIMINARY PROVISIONS.-GRAND JURY. 7600-7609 TITLE IV. OF PROCEEDINGS AFTER COMMITMENT AND BE- FORE INDICTMENT. Prosecutions by indictment. Cr. P., 173. By accusation or information. Cr. P., 174. Indictments and accusations, where found. Cr. P., 165. CHAPTER I. Preliminary Provisions. Section 7602. Indictments and accusations, what court found. Section 7600. What prosecutions must be by in- dictment. 7601. What by accusation or information. \ Section 7600. All public offenses triable in the District Court, must be prosecuted by indictment, except as provid- ed in the next section. Sec. 7601. When the proceedings are had for the re- moval of district, county, municipal, or precinct officers, they may be commenced by an accusation or information, in writing, as provided in Chapter II of Title II of this part. Sec. 7202. All accusations against district, county, mu- nicipal and precinct officers, and all indictments, must be found in the District Court. Who may challenge. Cr. P., 177. Cause of challenge to panel. Cr. P., 178. Cause of challenge to an individual grand juror. Cr. P., 179. Act Jan. 10, 1883. CHAPTER H. Formation of the Grand Jury. Section 7607. Who may challenge the panel or an individual juror. Cause of challenge to a panel. Cause of challenge to an individual grand juror. Manner of taking and trying chal- lenges. Decision upon challenges. Effect of allowing a challenge to a panel. Effect of allowing challenge to an individual juror. Manner of filling panel. 7608. 7609. 7610. 7611. 7612. 7613. 7614. Section 7615. Objections can only be taken by challenge. 7616. Appointment of a foreman. 7617. Oath of foreman. 7618. Oath of other grand jurors. 7619. Charge of the court. 7620. Retirement of the grand jury. Dis- charge of. 7621. Special grand jury. 7622. Order for special grand jury. 7623. Order, how executed. 7624. Special grand jury, how formed. Section 7607. The people, or a person held to answer a charge for a public offense, may challenge the panel of a grand jury, or an individual juror. Sec. 7608. A challenge to the panel may be interposed 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; 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. Sec. 7609. A challenge to an individual grand juror may be interposed for one or more of the following causes only : 1. That he is a minor; 2. That he is an alien; 3. That he is insane; 4. That he is prosecutor upon a charge against the de- fendant; 793 §§ 7610-7617 FORMATION OF THE GRAND JURY. Tit. IV. Ch.II. 5. That he is a witness on the part of the prosecution, and has been served with process or bound by an under- taking as such; 6. That he has formed or expressed an unqualified opin- ion or belief that the defendant is guilty or not guilty of the offense charged; but a hypothetical opinion, founded on hearsay or information supposed to be true, unaccompanied with malice or ill will, shall not disqualify a grand juror or be a cause of challenge; 7. That a state of mind exists on his part in reference to the case, or to either party, which satisfies the court that he cannot act impartially and without prejudice to the sub- stantial rights of the party challenged, i^t. Sec. 7610. The challenges mentioned in the last three sections may be oral, or in writing, and must be tried by the court. Sec. 7611. The court must allow or disallow the chal- lenge, and the clerk must enter its decisions upon the min- utes. Sec. 7612. If a challenge to the panel is allowed, the grand jury are prohibited from inquiring into the charge against the defendant, by whom the challenge was inter- posed. If, notwithstanding, they do so, and find an indict- ment against him, the court must direct it to be set aside. Sec. 7613. If a challenge to an individual grand juror is allowed, he cannot be present or take part in the consid- eration of the charge as to which he was challenged against the defendant who interposed the challenge, or the deliber- ations of the grand jury thereon. The grand jury must in- form the court of a violation of this section, and it is pun- ishable by the court as a contempt. Sec. 7614. If more than three challenges to individual grand jurors are allowed to the same defendant in reference to the same charge, the court must fill the panel to sixteen as to that charge by causing a sufficient number of compe- tent jurors from those summoned and not before called, or if a sufficient number are not in attendance, then from the by- standers or from the body of the county to be sworn to act as jurors with the regular panel, upon the examination of that charge; and, if necessary to secure the full number of sixteen competent jurors, the court may require the Sheriff to summon the required number. Sec. 7615. A person held to answer to a charge for a public offense can take advantage of any objection to the panel or to any individual grand juror in no other mode than by challenge. Sec. 7616. From the persons summoned to serve as grand jurors and appearing, the court must appoint a fore- man. The court must also appoint a foreman when the per- son already appointed is excused, or discharged before the grand jury is dismissed. Sec. 7617. The following oath must be administered to the foreman of the grand jury: "You, as foreman of the grand jury, will diligently in- quire into and true presentment make, of all public offenses against the Territory of Idaho, committed or triable within this county, of which you shall have or can obtain legal ev- idence. You will keep your own counsel, and that of your 799 Manner of challenging. Cr. P. ,180. Decision upon challenges . Cr. P. 181. Effect of allowing a challenge to a panel. Cr. P., 182, Allowing challenge to an individual juror, effect of. Cr. P., 183, 184. Manner of filling panel. N. S. Objections, how taken. Cr. P., 185. Appointment of a foreman. Cr. P., 186. Oath of foreman. Cr.P.,187. Tit. IV. Ch.IL FORMATION OF THE GRAND JURY. §§ 7618-7624 Oath of other jurors. Cr. P., 188. Charge of court. Cr. P., 189. fellows, and of the government, 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 you or any other grand juror may have voted on any matter before you. You will present no person through malice, hatred, or ill-will, nor leave any un- presented through fear, favor, or affection, or for any re- ward or the promise or hope thereof; but in all your pre- sentments you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, so help you God." Sec. 7618. 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." Sec. 7619. The grand jury being impaneled and sworn, must be charged by the court. In doing so, the Court must give them such information as it may deem proper, or as is required by law, as to their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury. Sec. 7620. The grand jury must then retire to a private room and inquire into the offenses cognizable by them. On the completion of the business before them, they must be discharged by the court, but, whether the business is com- pleted or not, they are discharged by the final adjournment of the court. Sec. 7621. If an offense is committed during the sitting of the court, after the discharge of the grand jury, the court may, in its discretion, direct an order to be entered that the sheriff summon another grand jury. Sec. 7622. The order must require the sheriff to sum- mon twenty persons, qualified to serve as grand jurors, to appear at a time specified, and a copy thereof, under the seal of the court, must, by the clerk, be delivered to the sheriff. Sec. 7623. The Sheriff must execute the order and re- turn it, with a list of names of the persons summoned. Sec. 7624. At the time appointed the list must be called over, and the names of those in attendance be written by the Clerk on separate ballots and put into a box, from which a Grand Jury must be drawn. Retirement of grand jury. Cr. P., 190, 191. Special grand jury. Cr. P., 192. Order for special jury. Cr. P., 193. Order, how executed Cr. P., 144. Special jury, how formed. Cr. P., 195. 800 $§7630-7636 POWERS AND DUTIES OF A GRAND JURY. Tit. IV. Ch.III. CHAPTER III. Powers and Duties of a Grand Jury. 7031. 7632. 7633. 7634. 7635. 7636. 7637. '639. Section 7638. Must inquire into cases of persons imprisoned, etc. Entitled to access to public prison, etc. 7640. When and from whom they may ask advice, and who may be present during their sessions. 7641. Secrets of Grand Jury to be kept, except, etc. 7642. Grand Juror not to be questioned for his conduct, except, etc. Section 7630. Powers of Grand Jury. Presentment denned. Indictment defined. Foreman may administer oaths . Evidence receivable before the Grand Jury. Grand Jury not bound to hear evi- dence for the defendant, but may order explanatory evidence, etc . Degree of evidence to warrant in- dictment. Grand Jurors must declare their knowledge as to commission of public offense. Section 7630. The Grand Jury must inquire into all public offenses committed or triable within the county, and present them to the court, either by presentment or by in- dictment. Sec. 7631. A presentment is a formal statement in writing, by the Grand Jury, representing to the court that a public offense has been committed which is triable in the county, and that there is reasonable ground for believing that a particular individual named or described therein has committed it. Sec. 7632. An indictment is an accusation in writing, presented by the Grand Jury to a competent court, charging a person with a public offense. Sec. 7633. The foreman may administer an oath to any witness appearing before the Grand Jury. Sec. 7634. In the investigation of a charge for the pur- pose of either presentment or indictment, the Grand Jury can receive no other evidence than such as is given by wit- nesses produced and sworn before them except as herein- after provided, or furnished by legal documentary evidence, or the deposition of a witness in the cases provided by this Code. The Grand Jury can receive none but legal evi- dence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence, but no witness whose testi- mony has been taken and reduced to writing on a prelimi- nary examination must be subpoenaed or required to appear before the Grand Jury, until such testimony has been first submitted to and considered by the Grand Jury, but if such testimony has been lost or cannot be found, or if the Grand Jury after considering the same still desires the presence of any such witnesses, they may be subpoenaed. Sec. 7635. The Grand Jury is not bound to hear evi- dence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be pro- duced, and for that purpose may require the District Attor- ney to issue process for the witnesses. Sec. 7636. The Grand Jury ought to find an indict- ment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in* their judgment, warrant a conviction by a trial jury. 51 801 Grand jury powers of Cr. P., 201. Presentment defined. Cr. P., 203. Indictment defined. Cr. P., 202. Foreman may administer oaths. Cr. P., 204. Evidence receivable before grand jury. Grand jury not bound to hear evidence for defendant. Cr. P., 207. Evidence to warrant indictment. Cr. P., 208. Tit. IV. G7i.JP. PKESENTMENT AND PROCEEDINGS THEREON. g§ 7637-7647 Juror's knowl- edge of public offen6C. Cr. P., 209. Persons im- prisoned, etc. Cr. P., 210. Access to prisons, etc. Cr. P., 211. Who may be present at sessions of jury, etc. Cr. P., 212. Secrets of jury to be kept, etc. Cr. P., 213,214. Juror not to be questioned.; C.P.,215. Sec. 7637. If a member of a Grand Jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he must declare the same to his fellow jurors, who must thereupon investigate the same. Sec. 7638. The Grand Jury must inquire into the case' of every person imprisoned in the jail of the county, on a criminal charge and not indicted; into the condition and management of the public prisons within the county; and into the willful and corrupt misconduct in office of public officers of every description, within the county. Sec. 7639. They are also entitled to free access, at all rea- sonable times, to the public prisons, and to the examination, without charge, of all public records within the county. Sec. 7640. The Grand Jury may, at all reasonable times, ask the advice of the court, or the judge thereof, or of the District Attorney; but unless such advice is asked, the judge of the court must not be present during the ses- sions of the Grand Jury. The District Attorney of the county may at all times appear before the Grand Jury for the purpose of giving information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they or he thinks it necessary; but no other person is permitted to be present during the ses- sions of the Grand Jury, except the members and witnesses actually under examination, and an interpreter when nec- essary, and no person must be permitted to be present dur- ing the expressions of their opinions, or giving their votes upon any matter before them. Sec. 7641. Every member of the Grand Jury must keep secret whatever he himself, or any other Grand Juror may have said, or in what manner he or any other Grand Juror may have voted on a matter before them; but may, however, be required by any court to disclose the testimony of a wit- ness examined before the Grand Jury, for the purpose of as- certaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against such per- son for perjury in giving his testimony, or upon trial therefor. Sec. 7642. A Grand Juror cannot be questioned for any- thing 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 perjury of which he may have been guilty, in making an accusation or giving testimony to his fellow jurors. CHAPTER IV. Presentment and Proceedings Thereon. Presentment must be made by twelve jurors. Cr. P., 21fl Section 7647. Presentment must be by twelve grand jurors, etc. 7648. Must be presented to the court and filed. 761!). If the facts stated in the present- ment constitute a public offense, the court must direct a bench war- rant. Section 7650. Bench warrant, by whom, and how issued. 7651. Form of bench warrant. 7652. Bench warrant how served. 7653. Proceedings of magistrate on defend- ant being brought before him. Section 7647. A presentment cannot be found without the concurrence of at least twelve Grand Jurors. When so found, it must be signed by the foreman. 802 |§ 7648-7653 PRESENTMENT AND PROCEEDINGS THEREON, Tit. IV. Ch.IV. Sec. 7648. The presentment, when found, must be pre- sented by the foreman, in presence of the Grand Jury, to the court, and must be filed with the Clerk. Sec. 7649. If the facts stated in the presentment con- stitute a public offense, triable in the county, the court must direct the Clerk to issue a bench warrant for the arrest of the defendant. Sec. 7650. 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. Sec. 7651. The bench warrant, upon presentment, must be substantially in the following form : County of . The Territory of Idaho to any Sheriff, Constable, Marshal, or Policeman in this Territory : A present- ment having been made on the day of , eighteen , to the District Court of the county of -, charging C. D. with the crime of (designating it generally,) you are therefore commanded forthwith to arrest the above named C. D., and take him before E. F., a magistrate of this county, or in case of his absence or inability to act, before the nearest and most ac- cessible magistrate in this county. Given under my hand with the seal of said court affixed, this day of , A. D. eighteen . By order of the court. [Seal.] G. H., Clerk. Sec. 7652. The bench warrant may be served in any county, and the officer serving it must proceed thereon as upon a warrant of arrest on an information. Sec. 7653. 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. Must be presented to the court. Cr. P., 217. When court issue bench warrant. Cr. P., 220. Bench warrant, by whom issued. Cr. P., 221. Form of bench warrant. Cr. P., 222. Bench warrant, how served. Cr. P., 223. Proceedings of magistrate. Cr. P., 224. 803 ■Tit. V, Ch. I. PRESENTMENT OF THE INDICTMENT. SS 7665-7670 TITLE V. OF THE INDICTMENT. CHAPTER I. Finding and Presentment of the Indictment. Indictment, jurors necessary to find. Cr. P., 225. Depositions must be returned, when. Cr. P., 226. Dismissal, effect of. Cr. P., 227. Witnesses, names of. Cr. P., 228. Indictment, how presented. Cr. P., 229. Defendant not in custody. Cr. P. ,230. Section 7665. Indictment must be found by twelve jurors, indorsed. 7666. If not found, depositions, etc., must be returned to court. 7667. Effect of dismissal. Section 766S. Names of witnesses inserted at foot of indictment. 7669. Indictment, how presented and filed. 7670. Proceedings when defendant is not in custody. Section 7665. An indictment cannot be found without the concurrence of at least twelve Grand Jurors. When so found it must be indorsed, 'A true bill," and the indorse- ment must be signed by the foreman of the Grand Jury. Sec. 7666. If twelve Grand Jurors do not concur in finding an indictment against a defendant who has been held to answer, the depositions, if any, transmitted to them must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charged is dis- missed. Sec. 7667. The dismissal of the charge does not pre- vent its resubmission to a Grand Jury as often as the court may direct, but without such direction it cannot be resub- mitted. Sec. 7668. When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, must be in- serted at the foot of the indictment, or indorsed thereon, be- fore it is presented to the court. Sec. 7669. 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. Sec. 7670. When an indictment is found against a de- fendant not in custody, the same proceedings must be had as are prescribed by chapter I of Title VI, against a defend- ant who fails to appear for arraignment. 804 §§ 7675-7680 PLEADINGS . INDICTMENT. Tit. V. Ch. II. CHAPTER II. Pleadings. Indictment. Section 7675. Form of and rules of pleading. First pleading by the people is in- dictment. Indictment, what to contain. Form of indictment. Indictment must be direct and cer- tain. When defendant is indicted by ficti- tious name, etc. The indictment must charge but one offense and in one form, except where it may be committed by different means. Statement as to time when offense was committed. Statement as to person injured or intended to be. Construction of words used in an in- dictment. Words used in a statute need not be strictly pursued. Indictment, when sufficient. Indictment not insufficient for de- fect of form not tending to preju- dice defendant. 7670. 7677. 7678. 7679. 7680. 7681. 7682. 7683. 7684. 7685. 7686. 7687. Section 7688. Presumptions of law, etc., need not be stated. Judgments, etc., how pleaded. Private statutes; how pleaded. Pleadings in indictment for libel. Pleading in indictment for forgery, where instrument has been de- stroyed or withheld by defendant. Pleading in an indictment for per- jury or subornation of perjury. Pleading in indictment for larceny or embezzlement. Pleading in an indictment for sell- ing, exhibiting, etc., lewed and ob- scene books, etc. Indictment against several, one or more may be acquitted. Distinction between accessory be- fore the fact and principal abro- gated. Principals, how indicted, etc. Accessory may be indicted and tried, though principal has not been. 7689. 7690. 7691. 7692. 7693. 7694. 7695. 7696. 7697. 7698. Section 7675. All the forms of pleading in criminal ac- tions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code. Sec. 7676. The first pleading on the part of the people is the indictment. Sec. 7677. 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 offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. Sec. 7678. It may be substantially in the following form: The Territory of Idaho against A. B., in the District Court of the Judicial District, in the county of -Term, A. D., eighteen- A. B. is accused by the grand jury of the county of- by this indictment, of the crime of (giving its legal appella- tion, such as murder, arson, or the like), committed as fol- lows: The said A. B., on the day of , A. D. eighteen ■ — , at the county of , (here set forth the act or omission charged as an offense). Sec. 7679. It must be direct and certain as it regards: 1. The party charged; 2. The offense charged; 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense. Sec. 7680. When a defendant is indicted by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered it must be inserted in the subse- quent proceedings, referring to the fact of his being indict- ed by the name mentioned in the indictment. 805 Rules of pleading. Cr. P., 231. Pleading by the people. Cr. P., 232. Indictment, what must contain. Cr P., 233. Form of indictment. Cr. P., 234. Indictment, must be certain. Cr. P., 235. Defendant indicted by fictitious name. Cr. P., 236. Tit. V. Gh. II. PLEADINGS . INDICTMENT. §§ 7681-7G89 Indictment must charge but one offense Or. P., 237. When offense was committed. Cr. P., 2:5*. Person injured. Cr. P., 239. Construction of words. Cr. P., 240. Words of statute not to be strictly pursued. Cr. P., 241. Indictment, when sufficient. Cr. P., 242. Indictment, defect of form. Cr. P., 243. Presumptions of law, etc. Cr. P., 244. Judgment, etc. how pleaded, Cr. P., 245. Sec. 7681. The indictment must charge but one offense, but the same offense may be set forth in different forms under different counts, and, when the offense may be com- mitted by the use of different means, the means may be al- leged in the alternative in the same count. Sec. 7682. The precise time at which 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 finding thereof, except where the time is a material ingredi- ent in the offense. Sec. 7683. 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. Sec. 7684. The words used in an indictment are con- strued in their usual acceptance in common language, ex- cept such words and phrases as are defined by law, which are construed according to their legal meaning. Sec. 7685. Words used in a statute to define a public offense need not be Strictly pursued in the indictment; but other words conveying the same meaning may be used. Sec. 7686. The indictment is sufficient if it can be un- derstood therefrom: 1. That it is entitled in a court having authority to re- ceive it, though the name of the court be not stated; 2. That it was found by a Grand Jury of the county- in which the court was held; 3. That the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with a statement that 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, is triable therein; 5. That the offense was committed at some time prior to the time of finding the indictment; 6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding 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. Sec. 7687. No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits. Sec. 7688. Neither presumptions of law nor matters of which judicial notice is taken, need be stated in an indict- ment. Sec. 7689. In pleading a judgment or other determina- tion of, or proceeding before, a court or officer of special jurisdiction, it is not necessary to state the facts constitut- ing jurisdiction; but the judgment or determination may be 806 §§ 7690-7697 PLEADINGS . INDICTMENT. Tit. V. Ch. II. Private statutes, how pleaded. Cr. P., 24G. Indictment for libel. Cr. P., 247. Indictment for forgery . Cr. P., 248. Indictment for perjury. Cr. P., 249. stated as given or made, or the proceedings had. The facts constituting jurisdiction, however, must be established on the trial. Sec. 7690. In pleading a private statute, or a right de- rived therefrom, it is sufficient to refer to the statute by its title and the day of its passage, and the court must there- upon take judicial notice thereof. Sec. 7691. An indictment for libel need not set forth any extrinsic facts for the purpose of showing the applica- tion to the party libeled of the defamatory matter on which the indictment is founded; but it is sufficient to state gen- erally that the same was published concerning him, and the fact that it was so published must be established on the trial. Sec. 7692. When an instrument which is the subject of an indictment for forgery has been destroyed or with- held by the act or the procurement of the defendant, and the fact of such destruction or withholding is alleged in the indictment and established on the trial, the misdescrip- tion of the instrument is immaterial. Sec. 7693. In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to admin- ister 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 au- thority of the court or person before whom the perjury was committed. Sec. 7694. In an indictment for the larceny or embez- zlement of money, bank notes, certificates of stock, or val- uable securities, or for a conspiracy to cheat or defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy 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. Sec. 7695. An indictment for exhibiting, publishing, passing, selling, or offering to sell, or having in possession, with such intent, any lewd or obscene book, pamphlet, pic- ture, 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, paper, or writing; but it is sufficient to state generally the fact of the lewdness or ob- scenity thereof. Sec. 7696. Upon an indictment against several defend- ants, any one or more may be convicted or acquitted. Sec. 7697. 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 offense, or aid and abet in its commission, though not present, shall here- after be prosecuted, tried, and punished as principals, and Indictment for larceny. N. S Indictment for selling obscene books, etc. N. S. Indictment, number acquitted . Cr. P., 250. Accessory before the fact. Principals, etc. Cr. P., 251. 807 Tit. V. Ch. II. PLEADINGS. INDICTMENT. § 7698- no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal. Sec. 7698. An accessory to the commission of a felony may be indicted, tried, and punished, though the principal, may be neither indicted nor tried. Accessory indicted, etc. Cr. P., 252,253. 808 7710-7715 OF THE AKRAIGNMENT. Tit. VI. Ch. I. TITLE VI. AFTER INDICTMENT AND BEFORE TRIAL. CHAPTER I. m ate 6V/^7 Section 7780. An issue of fact arises: 1. Upon a plea of not guilty; 2. Upon a plea of a former conviction or acquittal of the same offense; 3. Upon a plea of once in jeopardy. I j71t. Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as render him incapable of performing the duties of a juror. 818 §§7833-7837 CHALLENGING THE JURY. Tit. VII. Ch.I. Sec. 7833. Particular causes of challenge are of two ^^Jy kinds: challenge. 1. For such a bias as, when the existence of the fact as- Cr-p-33«. certained, 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 of the parties, which in the exercise of a sound discretion on the part of the trier leads to the inference that he will not act with en- tire impartiality, and which is known in this Code as actual bias. Sec. 7834. A challenge for implied bias may be taken Grounds of cnai- for all or any of the following causes and for no other: ienge,iorimPhed 1. Consanguinity or affinity within the fourth degree to cr. p., 339. the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant; 2. Standing in the relation of guardian and ward, attor- ney and client, master and servant, or landlord and tenant, or being a member of the family or boarder or lodger of the defendant, or of the person alleged to be injured by the of- fense charged or on whose complaint the prosecution was in- stituted, or in his employment on wages; 3. Being a party adverse to the defendant in a civil action or having complained against or been accused by him in a criminal prosecution; ±. Having served on the grand jury which found the in- dictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indict- ment; 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 same charge, and whose verdict was set aside or which was discharged without a verdict, after the case was submitted to it, or being a witness for the prosecution, or subpoenaed as such; 7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense. 8. Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged; 0. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would pre- clude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror. Sec. 7835. An exemption from service on a jury is not Exemption, no a cause of challenge, but the privilege of the person ex- ground of empted. Crap?34o. Sec. 7836. In a challenge for implied bias, one or more causes of cnai- of the legal causes must be alleged. In a challenge for ac- 1!nfeihow tual bias, it must be alleged that the juror is biased against crap.,*34i. the party challenging. In either case the challenge may be oral, but must be entered on the minutes of the court. Sec. 7837. The adverse party may except to the chal- Exceptions to lenge in the same manner as to a challenge to the panel, cr?p?,n3c permitted to separate. Act Jan, 22, 824 §§ 7881-7889 THE TRIAL. Tit VII. Ch.II. son to speak to or communicate with them, or either of them, nor to do so himself, on any subject connected with the trial, and to return them into court at the next meeting thereof. In all trials for murder, the jury must be kept to- gether. Sec. 7881. 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 anyone else on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them. Sec. 7882. If, before the conclusion of the trial, a juror becomes 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 sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterwards im- paneled. Sec. 7883. The court must decide all questions of law which arise in the course of a trial. Sec. 7884. On the trial of an indictment for libel, the jury have the right to determine the law and the fact. Sec. 7885. On the trial of an indictment for any other offense than libel, questions of law are to be decided by the court, questions of fact by the jury; 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, never- theless, to receive as law what is laid down as such by the court. Sec. 7886. In charging the jury, the court must state to them all matters of law necessary for their information. Either party may present to the court any written charge and 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 must indorse and sign its decision. If part be given and part refused the court must distinguish, showing by the indorsement what part of the charge was given and what part refused. Sec. 7887. After hearing the charge, the the jury may either decide in court or may retire for deliberation. If they do not agree without retiring, an officer must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor to do so himself, unless by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court. Sec. 7888. When a defendant who has given bail ap- pears 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 or further order of the court, and he must be com- mitted and held in custody accordingly. Sec. 7889. If the District Attorney fails to attend at the trial, the court must appoint some attorney at law to perform the duties of the District Attorney on such trial. Jury must be admonished, etc.. Cr. P., 378. Juror unable to perform duties- Cr. P., 379. Cr. P., 330. Court to decide questions of Jaw. Jury to deter- mine law, etc., when libel. Cr, P., 381. Court to decide questions of law. Cr. P., 332. Charging th- jury. Cr. P., 383, 384, 385 . Jury, where they- may decide.. Cr. P., 336. Defendant may be committed. Cr. P., 387. District Attorney failing to attend. N. S. 825 Tit. VII. Ch.IIL CONDUCT OF THE JURY. §§ 7900-7906 Accommoda- tions for jurv. Cr. P., 388. Accommodations for jury. Cr. P., 389. What papers jury may take Cr. P., 390,391. May return into court for infor- mation. Cr. P., 392. Juror becomes sick, what to be done. Cr. P., 393. Not to be dis- charged, when. Cr. P., 394. When tbe cause to be again tried. Cr. P., 395 CHAPTER III. Conduct of the Jury. Section 7900. Room and accommodations for the jury after retirement, how pro- vided. 7901. Accommodations for jury when kept together. 7902. What papers the jury may take with them. 7903. If after retirement may return into court for information. 7904. If juror after retirement become sick, etc., jury to be discharged. Section 7905. Not to be discharged for any other cause, unless there is no reasona- ble probability that they can agree. When jury discharged or prevented from giving a verdict, cause to be again tried. Court may adjourn during absence of jury. Final adjournment discharges jury. Where counties are joined for judi- cial purposes. 7906. 7907. 7908. 7909. Section 7900. A room must be provided by the Commis- sioners of each county for the use of the jury upon their re- tirement 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 certified by the court, are a county charge. Sec. 7901. While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the Sheriff, at the expense of the county, with suitable and sufficient food and lodging. Sec. 7902. Upon retiring for deliberation, the jury may take with them all papers (except depositions) which have been received as evidence in the cause, or copies of such public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession. They may also take with them the written instructions given, and 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. • Sec. 7903. After the jury have retired for deliberation, if there is any disagreement between them as to the testi- mony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to con- duct them into court, Upon being brought into court, the information required must be given in the presence of, or after notice to, the District Attorney, and the defendant or his counsel, or after they have been called. Sec. 7904. If, after the retirement of the jury one of them be taken so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation, the jury may be discharged. Sec. 79C5. Except as provided in the last section, the jury 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 consent of both parties entered upon the minutes, or unless at the expiration of such time ' as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree. Sec. 7906. In all cases where a jury are discharged or prevented from giving a verdict 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 826 §§ 7907-7919 THE VERDICT. Tit. VII. Ch.IV. the cause is submitted to them, the cause may be again tried at the same or another term. Sec. 7907. While the jury are absent, the court may ad- journ from time to time, as to other business, but it must nevertheless be open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged. Sec. 7908. A final adjournment of the court discharges the jury. Sec. 7909. When two or more counties are joined for judicial purposes, the expense of the trial of a cause must be paid by the county where the offense is alleged to be com- mitted. Court may ad- journ during ab- sence of jury. Cr. P., 396. Final adjourn- ment Cr. P., 397. Where counties are joined for judicial pur- poses. Cr. P., 398. CHAPTER IV. The Verdict. Section 7915. Keturn of jury. 791b'. Appearance of defendant. 7917. Manner of taking verdict. 79 18. Verdict may be general or special . 7919. General verdict. 7920. Special verdict. 7921. Special verdict, how rendered. 7922. Form of special verdict. 7923. Judgment on special verdict. 7924. When special verdict defective, new trial to be ordered. 7925. Jury to find degree of crime. 7926. Jury may convict of lesser offense, or of attempt. Section 7927. Verdict as to some defendants, and another trial as to others. In what cases court may direct a re- consideration of the verdict. When judgment may be given on in- formal verdict. Polling the jury. Recording the verdict. Defendant, when to be discharged or detained after acquittal. Proceedings upon general verdict of conviction or a special verdict. Proceedings on verdict of acquittal on ground of insanity. 7928. 7929. 7930. 7931. 7932. 7933. 7934. Section 7915. When the jury have agreed upon their verdict they must be conducted into court by the officer having them in charge. Their names mustybe called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried at the same, or another term. Sec. 7916. If indicted for a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor, the verdict may be rendered in his absence. Sec. 7917. When the jury appear they must be asked by the court, or clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. Sec; 7918. The jury may render a general verdict, or, when 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. Sec. 7919. A general verdict upon a plea of not guilty is either "guilty" or "not guilty," which imparts a convic- tion 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 people" or "for the defendant." When the defendant is acquitted on the ground that he was insane at the time of the commission 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." 827 Return of jury. Cr. P., 399. Appearance of defendant. Cr. P., 400. Manner of taking verdict. Cr. P., 401. Verdict, kind of. Cr. P., 402. General verdict. Cr. P., 403. Tit. V1L Ch. IV. THE VERDICT. §§ 7920-7929 Special verdict. Cr. P., 404. Verdict, how rendered. Cr. P., 405. Verdict, form of Cr. P., 400. Judgment on verdict. Cr. P., 407. When verdict defective. Cr. P., 408. Jury totiud degree of crime. Cr. P., 409. Cr., 17. Jury may con- vict of lesser offense. N. S. Verdict as to some defendants, and another trial as to others. Cr. P., 410. When court may direct a recon- sideration. Cr. P., 411,412. Judgment on in- formal verdict. Cr. P., 413. Sec. 7920. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented, as that nothing remains to the court but to draw conclusions of law upon them. Sec. 7921. The special verdict must be reduced to writ- ing by the jury, or in their presence entered upon the min- utes of the court, read to the jury and agreed to by them, before they are discharged. Sec. 7922. The special verdict need not be in any par- ticular form, but is sufficient if it present intelligibly the facts found by the jury. Sec. 7923. The court must give judgment upon the special verdict as follows: 1. If the plea is not guilty, and the facts prove the de- fendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted under that 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 acquittal or conviction, as the facts prove or fail to prove the former conviction or acquittal. Sec. 7924. 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 evi- dence of facts merely, and not the conclusions of fact, from the evidence, as established to their satisfaction, the court must order a new trial. Sec. 7925. Whenever a crime is distinguished into de- grees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty. Sec. 7926. The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense. Sec. 7927. 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 others may be tried by another jury. Sec. 7928. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain 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 reconsider it. If the jury ren- der a verdict which is neither general nor special, the court may direct them to reconsider it, and it cannot be recorded until it is rendered in some form from which it can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially and to leave the 3udgment to the court. Sec. 7929. If the jury persist in finding an informal verdict, from which, however, it can be clearly understood 828 §S 7930-7940 BILLS OF EXCEPTION. Tit VII Ch. V. 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 express- ly find against the defendant upon the issue, or judgment is given against him on a special verdict. Sec. 7930. When a verdict is rendered, and before it is pAng the jury. recorded, the jury may be polled, at the request of either par- S^E^fitic^O £W^^> ty, in which case they must be severally asked whether it is /=> ^ / c ^ , ^ their verdict, and if any one answer in the negative, the ' / / * jury must be sent out for further deliberation. Sec. 7931. When the verdict given is such as the court Recording the may receive, the clerk must immediately record it in full ci-rpct4i5 upon the minutes, 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 com- plete, and the jury must be discharged from the case. Sec. 7932. If judgment of acquittal is given on a gen- Defendant, when eral verdict and the defendant is not detained for any other Jo be discharged. legal cause, he must be discharged as soon as the judgment is given, except where the acquittal is because of a variance between the proof and the indictment, which may be obvia- ted 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 case where the indictment does, not state a public offense. Sec. 7933. If a general verdict is rendered against the General verdict defendant, or a special verdict is given, he must be re- £f cpnv4c$rou- manded, if in custody, or if on bail he may be committed to the proper officer 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. Sec. 7934. If the jury render a verdict of acquittal on proceedings on the ground of insanity, the court may order a jury to be yerdict of acquit- ° t j. ii • i» j. <• ii J i i • • tal on grounds of summoned trom the jury list or the county, to inquire insanity. whether the defendant continues to be insane. The court N- s- may cause the same witnesses to be summoned who testified on the trial, and other witnesses, and direct the District Attorney to conduct the proceedings, and counsel may ap- pear for the defendant. The court may direct the Sheriff to take the defendant and retain him in custody until the question of continuing insanity is determined. If the jury find the defendant insane, he shall be committed by the Sheriff to the Territorial Insane Asylum. If the jury find the defendant sane, he shall be discharged. CHAPTER V. Bills of Exception. Section 7940. In what cases . 7941. When to be settled and signed. 7942. Exceptions to decision of court by either party. 7943. Exception to decision of court by defendant. Section 7944. Proceedings on settlement of bill of exceptions. 7945. What bill of exceptions is to con- tain. 7946. Written charges need not be ex- cepted to. -Section 7940. On the trial of an indictment, exceptions Iu what cases. may be taken by the defendant to a decision of the court. c*. ?■> 418- 829 Tit. VII. Ch. V. BILLS OF EXCEPTION. §§ 7941-7944 When to be set- tled and signed. Cr. P., 419. Exceptions not taken on trial. N. S. Exceptions by defendant. N. S. Settlement of bill of exceptions. N. S. 1. In disallowing a challenge to the panel of the jury, or to an individual juror, for implied bias; 2. In admitting or rejecting testimony, or in charging the triers on the trial of a challenge to a juror for actual bias; 3. In admitting or rejecting 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. Sec. 7941. When a party desires to have the excep- tions taken at the trial settled in a bill of exceptions, the draft of a bill must be prepared by him and presented, upon notice of at least two days, to the District Attorney, to the judge for settlement, within ten days after judgment has been rendered against him, unless further time is granted by the Judge, or by a Justice of the Supreme Court, or with- in that period the draft must be delivered to the Clerk of the Court for the Judge. When received by the Clerk, he must deliver it to the Judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the Judge and filed with the Clerk of the Court. Sec. 7942. Exceptions may be taken by either party to the decision of a court or Judge upon a matter of law : 1. In granting or refusing a motion to set aside an in- dictment; 2. In allowing or disallowing a demurrer to an indict- ment; 3. In granting or refusing a motion in arrest of judg- ment; 4. In granting or refusing a motion for a new trial; 5. In making, or refusing to make, an order after judg- ment, affecting any substantial right of the parties. Sec. 7943. Exceptions may be taken by the defendant to a decision of the court upon a matter of law: 1. In refusing to grant a motion for a change of the place of trial; 2. In refusing to postpone the trial on motion of the defendant. Sec. 7944. When a party desires to have the exceptions mentioned in the last two sections settled in a bill of ex- ceptions, the draft of a bill must be prepared by him and presented, upon notice of at least two days to the adverse party, to the Judge for settlement, within ten days after the order or ruling complained of is made, unless further time is granted by the Judge, or by a justice of the Supreme Court, or within that period the draft must be delivered to the Clerk of the Court for the Judge. When received by the Clerk, he must deliver it to the Judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the Judge and filed with the Clerk of the Court. If the Judge in any case refuse to allow an excep- tion in accordance with the facts, the party desiring the bill settled, may apply, by petition to the Supreme Court, to prove the same. The application may be made in the mode and manner, and under such regulations as that court may prescribe; and the bill, when proven, must be certified by the Chief Justice as correct, and filed with the Clerk of the Court in which the action was tried, and when so filed, it has the same force and effect as if settled by the Judge who 830 §§ 7945-7952 NEW TRIALS. Tit. VII. Ch. VI. tried the cause. If the Judge who presided at the trial ceases to hold office before the bill is tendered or settled, he may, nevertheless, settle such bill, or the party may, as provided in this section, apply to the Supreme Court to prove the same. ' Sec. 7945. A bill of exceptions must contain so much Biiiof excep- of the evidence only as is necessary to present the questions c'ontain^ to of law upon which the exceptions were taken, and the cr. p.,420. Judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters con- tained therein. Sec. 7946. When written charges have been presented, written charges given, or refused, the questions presented in such charges ?e°cuo be excep" need not be excepted to or embodied in a bill of exceptions, but the written charges with the endorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon, may be taken advant- age of on appeal, in like manner as if presented in a bill of exceptions. CHAPTER VI. New Tkials. Section. 7950. New trials defined. 7951 . Its effect. Section 7952. In what cases it may be granted. 7953. Application for, when made. Section 7950. A new trial is a re-examination of the New trial issue in the same court, before another jury, after a verdict crfipe?423. has been given. Sec. 7951. The granting of a new trial places the par- its effect. ties in the same position as if no trial had been had. All cr. p.,423. the testimony must be produced anew, and the former ver- dict cannot be used or referred to either in evidence or in argument. Sec. 7952. When a verdict has been rendered against in what cases it the defendant, the court may, upon his application, grant m* ^ea|r|;n*ed- a new trial in the following cases only : 1 . When the trial has been had in his absence, if the indict- ment is for a 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 has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consider- ation 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 in a matter of law, or has erred in the decision of any question of law aris- ing during the course of the trial; 6. When the verdict is contrary to law or evidence; 7. When new evidence is discovered material to the de- fendant, and which he could not with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing in sup- port thereof, the affidavits of the witnesses by whom such 831 Tit. VII. Ch. VII. ARREST OF JUDGMENT. §§ 7953-7963 Application for, ■when made. Cr. P., 425. evidence is expected to be given, and if time is required by the defendant to procure such affidavits the court may post- pone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasona- ble. Sec. 7953. The application for a new trial may be made before or after judgment; and must be made within ten days after verdict, unless the court or Judge extends the time. « Motion in arrest of judgment. Cr. P., 428, 426. Court may arrest judgment. Cr. P., 427. Effect of. Cr. P., 42!). Defendant, when to be held or dis- charged. N. S. CHAPTER VII. Arrest of Judgment. Section 7960. Motion in arrest of judgment de- fined. Upon what defects found- ed, and when made. 7961. Court may arrest judgment with- out motion. Section 7962. Effect of arresting judgment. 7963. Defendant, when to be held or dis- charged. Section 7960. A motion in arrest of judgment is an appli- cation on the part of the defendant that no judgment be ren- dered on a plea or verdict of guilty, or on a verdict against the defendant on a plea of a former conviction or acquittal. It may be founded on any of the defects in the indictment that are grounds of demurrer unless the objection to the in- dictment has been waived by a failure to demur, and must be made before or at the time the defendant is called for judgment. Sec. 7961. The court may also, on its own view of any of these defects, arrest the judgment without motion. Sec. 7962. 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 indictment was found. Sec. 7963. If, from the evidence on the trial, there is reason to believe the defendant guilty, and a new indict- ment 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 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, and in neither case shall the verdict be a bar to another prosecution or in- dictment. But if no evidence appears sufficient to charge him with any offense, he must, if in custody, be discharged; or if admitted to bail, his bail is exonerated; or if money has been deposited instead of bail, it must be refunded to the de- fendant; and the arrest of judgment shall operate as an ac- quittal of the charge upon which the indictment was founded. 832 §§ 7980-7986 THE JUDGMENT. Tit. VIII. Ch. I. TITLE VIII. OF JUDGMENT AND EXECUTION. CHAPTER I. The Judgment. Section 7980. Appointing time for judgment. Upon plea of guilty, court must de- termine degree. Presence of defendant. When defendant in custody, how brought before the court for judg- ment. How brought before the court when on bail. Bench warrant to issue. Form of bench warrant. Warrant, how served. Arrest of defendant. Arraignment of defendant for judg- ment. 7981. 7982. 7983. 7984. 7985. 7986. 7987. 7988. 7989. Section 7990. What cause may be shown against the judgment. 7991. If no cause shown, judgment to be pronounced. 7992. Court may summarily inquire into circumstances in aggravation or mitigation of punishment . 7993. Proof of former conviction, or of facts, etc. 7994. Duration of imprisonment or judg- ment to pay a fine. 7995. Judgment to pay a fine constitutes a lien. 7996. Entry of judgment and judgment roll. Section 7980. After a plea or verdict of guilty, or after a verdict against the defendant on the plea or a former con- viction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which, in cases of felony, must be at least two days after the verdict, if the court intend to remain in ses- sion so long; but if not, then at as remote a time as can rea- sonably be allowed. Sec. 7981. Upon a plea of guilty of a crime distin- guished or divided into degrees, the court must, before pass- ing sentence, determine the degree. Sec. 7982. For the purpose of judgment, if the convic- tion is for felony, the defendant must be personally present; if for a misdemeanor, judgment may be pronounced in his absence. Sec. 7983. 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. Sec. 7984. If the defendant has been discharged on bail, or has deposited money instead thereof, and does not appear for judgment when his personal appearance is nec- essary, the court, in addition to the forfeiture of the under- taking of bail, or of the money deposited, may direct the clerk to issue a bench warrant for his arrest. Sec. 7985. The clerk, on the application of the district attorney, may, at any time after the order, whether the court be sitting or not, issue a bench warrant into one or more counties. Sec. 7986. The bench warrant must be substantially in the following form: County of . The Territory of Idaho, to any sheriff, constable, marshal, or policeman in this Territory: A. B., having been on the day of , A.D. eigh- teen hundred and , duly convicted in the District Court of the Judicial district of the Territory of Idaho, Time for judgment. Cr. P., 430,431. Court to deter- mine degree, when. Cr., 17. Cr. P., 432. Presence of defendant. Cr. P., 432. Defendant brought before court, when in custody. Cr. P., 433. When on bail. Cr. P., 434. in and for the County of- (designating it generally), you 53 833 of the crime of- Bench warrant to issue. Cr. P., 435. Form of bench warrant. Cr. P., 436. are therefore commanded Tit. J'JIT. Ch. I. THE JUDGMENT. §§ 7987-7993 Warrant, bow served. Cr. P., 437. Arrest of defendant. Cr. P., 438. Arraignment of defendant. Cr. P., 439. Cause shown against judg- ment. Cr. P. 440. •Judgment to be pronounced. Cr. P.. 441. Court may inquire into cir- cumstances. N. S. Proof of facts, etc. N. S 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, 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. eighteen hundred and . By order of the court. [Seal.] E. F., Clerk. Sec. 7987. The bench warrant may be served in any county in the same manner as a warrant of arrest, and when served in another county it need not be indorsed by a magis- trate of that county. Sec. 7988. Whether the bench warrant is served in the county in which it was issued or in another county, the of- ficer 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. Sec. 7989. 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 plea, and the verdict if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him. Sec. 7990. He may show, for cause against the judg- ment: 1. That he is insane; and if, in the opinion of the court, there is reasonable ground for believing him to be insane, the question of insanity must be tried as provided in Chap- ter VI, Title X, Part II of this Code. If, upon the trial of that question, the jury find that he is sane, judgment must be pronounced, but if they find him insane, he must be com- mitted to the Territorial Insane Asylum until he becomes sane; and when notice is given of that fact, as provided in said Chapter he must be brought before the court for judg- ment; 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. Sec. 7991. If no sufficient cause is alleged or appears to the court why judgment should not be pronounced, it must thereupon be rendered. Sec. 7992. After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral 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 party as it may direct. Sec. 7993, 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 may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or rep- resentation of any kind, verbal or written, can be offered 834 §§ 7994-8006 THE EXECUTION. Tit. VIII. Ch. II. Cr. P., 443. Comp. laws, 80G to or received by the court, or a Judge thereof, in aggrava- tion or mitigation of the punishment, except as provided in this and the preceding section. Sec. 7994. A judgment that the defendant pay a fine impriSonmeut. may also direct that he be imprisoned until the fine is satis fied, specifying the extent of the imprisonment, which can not exceed one day for every two dollars of the fine. Sec. 7995. A judgment that the defendant pay a fine Fine, etc. constitutes a lien, in like manner as a judgment for money Cr p» 444- rendered in a civil action. Sec. 7996. When judgment upon a conviction is ren- Entry of judg- dered, the clerk must enter the same upon the minutes, Sentfon iudg" stating briefly the offense for which the conviction was had, cr. p., 445. and must within five days annex together and file the fol- lowing papers, which constitute a record of the action : 1. A copy of the minutes of a challenge interposed by the defendant to the panel of the Grand Jury, or to an indi- vidual Grand Juror, and the proceedings and decision there- on; 2. The indictment and a copy of the minutes of the plea or demurrer ; 3. A copy of the minutes of a challenge interposed to the panel of a trial jury or to an individual juror, and the pro- ceedings and decision thereon; 4. A copy of the minutes of the trial; 0. A copy of the minutes of the judgment; 6. The bill of exceptions, if there be one; 7. The written charges asked of the court, and refused, if there be any; 8. A copy of all charges given and of the indorsements thereon. CHAPTER II. The Execution. Section 8005. Authority for the execution of a judgment, other than of death. 8006. If for tine alone, execution to issue as in civil cases. 8007. Judgment of fine and imprison- ment, by whom and how exe- cuted. 8008. Duty of sheriff on receiving copy of judgment of imprisonment. 8009. Warrant of execution upon judg- ment of death. Time of execu- tion. 8010. Judge to transmit statement of conviction and testimony to Gov- ernor. 8011. Governor may require opinion of Justice of Supreme Court, etc., thereon. 8012. Judgment of death, when sus- pended. Section 8005. When a judgment, other than of death, has been pronounced, a certified copy of the entry thereof upon the minutes must be forthwith furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution. m Sec. 8006. If the judgment is for a fine alone, execu- tion may be issued thereon as on a judgment in a civil ac- tion. 835 Section 8013. If reason to suppose defendant in- sane, jury to inquire into it ; how and by whom ordered. Duty of District Attorney upon in- quisition. Inquisition, how certified and filed. Proceedings upon finding of jury. Proceedings when female is sup- posed to be pregnant. Proceedings upon the finding of the jury. Proceedings when judgment of death remaining in force has not been executed. Punishment of death, how in- flicted. Execution, where to take place and who to be present. Eeturn upon death warrant. 8014. 8015. 8010. 8017. 8018. 8019. 8020. 8021. 8022. Authority for execution of judgment other than death. Cv. P., lit;. Execution to is- sue as in civil cases, when. Cr. P., 447. Tit. VIII. Ch.IL THE EXECUTION. §§ 8007-8016 Judgment, how executed, by whom. Cr. P.. 448. Duty of Sheriff, Act. Feb. 10, 1881. Warrant of exe- cution. Cr. P. ,449. Time of conviction. Judge to trans- mit to Governor . Cr. P., 450. Opinion of Justice of Supreme Court. Cr. P., 451. Judgment of death. Cr. P.,452- If defendant in- sane, jury to inquire into. Cr. P., 453. Inquisition. Duty of district attorney. Cr. P., 454. Inquisition, how filed, etc. Cr. P., 455. Proceedings upon finding of jury. Cr. P., 450, 45^ Sec. 8007. If the judgment is for imprisonment, or a fine and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with. Sec. 8008. If the judgment is for imprisonment in the Territorial Prison, the sheriff of the county must, upon re- ceipt of a certified copy thereof, take and deliver the de- fendant to the warden of the Territorial Prison. He must also deliver to the warden the certified copy of the judg- ment, and take from the warden a receipt for the defend- ant. Sec. 8009. When judgment of death is rendered, a warrant, signed by the Judge, and attested by the clerk under the seal of the court, must be drawn and delivered to the sheriff. It must state the conviction and judgment, and appoint a day on which the judgment is to be executed, which must riot be less than thirty nor more than sixty days from the time of judgment. Sec. 8010. The Judge of the court at which a convic- tion for murder is had, must, immediately after the convic- tion, transmit to the Governor, by mail, or otherwise, a statement of the conviction and judgment, and of the testi- mony given at the trial. Sec. 8011. The Governor may thereupon require the opinion of the justices of the Supreme Court and of the At- torney General, or any of them, upon the statement so fur- nished. Sec. 8012. No Judge, court or officer, other than the Governor, can suspend the execution of a judgment of death, except the sheriff, as provided in the six succeeding sections, unless an appeal is taken. Sec. 8013. If, after judgment of death, there is good reason to suppose that the defendant has become insane, the sheriff of the county, with the concurrence of the Judge of the court by which the judgment was rendered, may sum- mon from the list of jurors selected by the commissioners for the year, a jury of twelve persons to inquire into the sup- posed insanity, and must give immediate notice thereof to the District Attorney of the county. Sec. 8014. The District Attorney must attend the inqui- sition, 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. Sec. 80 15. A certificate of the inqusition must be signed by the jurors and the sheriff, and filed with the Clerk of the court in which the conviction was had. Sec. 8016. If it is found by the inquisition 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 Governor or from the Judge of the court by which the judgment was rendered directing the execution of the judgment. If the inquisition finds that the defendant is in- sane, the sheriff must immediately transmit it to the Gover- nor, who may, when the defendant becomes sane, issue a warrant appointing a day for the execution of the judgment. 836 §§ 8017-8022 THE EXECUTION. Tit. VIII. Ch. IL Sec. 8017. If there is good reason to suppose that a fe- male against whom a judgment of death is rendered is preg- nant, the sheriff of the county, with the concurrence of the Judge of the court by which the judgment was rendered, may summon a jury of three physicians to inquire into the supposed pregnancy. Immediate notice thereof must be given to the District Attorney of the county, and the pro- visions of sections 8014 and 8015 apply to the proceedings upon the inquisition. Sec. 8018. If it is found by the inquisition that the fe- male is not pregnant, the sheriff must execute the judg- ment; if it is found that she is pregnant, the sheriff must suspend the execution of the judgment, and transmit the inquisition to the Governor. When the Governor is satis- fied that the female is no longer pregnant, he may issue his warrant appointing a day for the execution of the judg- ment. Sec. 8019. 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 Dis- trict Attorney, must order the defendant to be brought be- fore it, or if he is at large, a warrant for his apprehension may be issued. Upon the defendant being brought before the court it must inquire into the facts, and if no legal rea- sons exist against the execution of the judgment, must make an order that the sheriff execute the judgment at a specified time. The sheriff must execute the judgment ac- cordingly. Sec. 8020. The punishment of death must be inflicted by hanging the defendent by the neck until he is dead. Sec. 802 1 . The judgment of death must be executed within the walls or yard of a jail, or some convenient pri- vate place in the county. The sheriff of the county must be present at the execution, and must invite the presence of a physician, the District Attorney of the county, and at least twelve reputable citizens, to be selected by him; and he shall, at the request of the defendant, permit such ministers of the gospel, not exceeding two, as the defendant may name, and any persons, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same. Sec. 8022. After the execution, the Sheriff must make a return upon the death warrant, showing the time, mode, and manner in which it was executed. Proceedings when female supposed to be pregnant. Or. P., 458 Finding of jury case of pregnancy. Cr. P., 459,460, Judgment of death remaining in force. Cr. P., 401, 402.. Punishment of death. Cr. P., 463. Executions, place of, whom present. Cr. P., 463. Return upon death warrant. Cr. P., 404. 837 Tit. IX. Ch.I. APPEALS, WHEN ALLOWED AND HOW TAKEN. §§8040-8045 Apoeal. Cr.~P., 465. U. S.B.S..18G9. Parties on appeal, how designated. Cr. P., 466. Defendant may take appeal, when. Cr. P., 465. In what cases by the people. Cr. P., 465. Appeals, time of . Cr. P., 468. Appeal, how taken. Cr. P., 469, 470, 471. Notice, service by publication. Cr. P., 471, 472. Effect of appeal by people. Cr. P., 473. Effect of appeal by defendant. Cr. P. 474. TITLE IX. OF APPEALS TO THE SUPREME COURT. CHAPTER I. Appeals, When Allowed and How Taken, and the Ef- fect Thereof. Section 8040. Who may appeal. Appeal to be taken on questions of law alone. 8041. Parties, how designated on appeal. 8042. In what cases an appeal may be taken by the defendant. 8043. In what cases by the people. 8044. Appeals, within what time to be taken. 8045. Appeal, how taken. Section 8046. When notice may be served by pub- lication. 8047. Effect of an appeal by the people. 8048 . Effect of an appeal by the defend- ant. 8049. Same. 8050. Same. 8051 . Duty of Clerks upon appeal. Section 8040. Either party in a criminal action in the District Court may appeal to the Supreme Court, on ques- tions of law alone, as prescribed in this chapter. Sec. 8041. The party appealing is known as the appel- lant, and the adverse party as the respondent, but the title of the action is not changed in consequence of the ap- peal. Sec. 8042. An appeal may be taken by the defendant: 1. From a final judgment of conviction; 2. From an order denying a motion for a new trial; 3. From any order made after judgment, affecting the substantial rights of the party. Sec. 8043. An appeal may be taken by the Territory: 1. From a judgment for the defendant on a demurrer to the indictment; 2. From an order granting a new trial; 3. From an order arresting judgment; 4. From any order made after judgment, affecting the substantial rights of the prosecution. Sec. 8044. An appeal from a judgment must be taken within one year after its rendition, and from an order, within sixty days after it is made. Sec. 8045. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party. Sec. 8046. If personal service of the notice cannot be made, the Judge of the Court in which the action was tried, upon proof thereof, may make an order for the publication of the notice in some newspaper for a period not exceeding thirty days; such publication is equivalent to personal ser- vice. Sec. 8047. An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed. Sec. 8048. An appeal to the Supreme Court from 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 838 & 8049-8064 APPEALS. Tit IX. Ch.II-III. certificate of the Judge of such Court, or of a Justice of the Supreme Court, that, in his opinion, there is probable cause for tire appeal, but not otherwise. Sec. 8049. If the certificate provided for in the preced- ing section is filed, the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal. Sec. 8050. If, before the granting of the certificate, the judgment has commenced, the further execution thereof is suspended, and upon service of a copy of such certificate the defendant must be restored, by the officer in whose custody he is, to his original custody. Sec. 8051. Upon the appeal being taken, the clerk with whom the notice of appeal is filed must, within ten days thereafter, in case the Dili of exception has been settled by the Judge before the giving of said notice, but if not, then within ten days from the settlement of the bill of exceptions, without charge, transmit to the Clerk of the Appellate Court a copy of the notice of appeal, and of the record, and of all bills of exceptions, instructions, and indorsements thereon; and, upon the receipt thereof, the Clerk of the Appellate Court must file the same and perform the same services as in civil cases, without charge. Effect of appeal by defendant. Cr. P.. 474. Effect of appeal by defendant. Cr. P., 474. Duty of clerks upon appeal. Cr. P., 475. CHAPTER II. Dismissing Appeal. Section 805 G. For what irregularity, and how dis- missed. Section 8057. Dismissal for want of a return. Section 8056. If the appeal is irregular in any substan- tial particular, but not otherwise, the Appellate Court may, on any day in term, on motion of the respondent, upon five days' notice, accompanied with copies of the papers upon which the motion is founded, order it to be dismissed. Sec. 8057. The court may also, upon like motion, dis- miss the appeal, if the return is not made as provided in the last chapter, unless, for good cause, they enlarge the time for that purpose. CHAPTER III. Argument of the Appeal. Section 8064. Number of counsel to be heard. 8065. Defendant need not be present. Section 8062. Appeals, when to be heard and de- termined. 8063. Judgment may be affirmed, but can- not be reversed without argument. Section 8062. All appeals in criminal cases must be heard and determined at the first term of the Appellate Court after the record is filed, unless continued on motion of or with the consent of the defendant. Sec. 8063. The judgment may be affirmed if the appel- lant fail to appear, but can be reversed only after argument though the respondent fail to appear. Sec. 8064. Upon the argument of the appeal, if the of- fense is punishable with death, two counsel must be heard on each side, if they require it. In any other case the court 839 Irregularity. Cr. P., 476. Dismissal for want of returns, Cr. P., 477. Appeals, when determined . Cr. P., 478. Judgment, etc. Cr. P., 470. Number of counsel. Cr. P.. 4 80. Tit IX. Ch.IV. Presence of defendant. Cr. P., 481. JUDGMENT UPON APPEAL. g§ 8065-8077 may, in its discretion, restrict the argument to one counsel on each side. Sec. 8065. The defendant need not personally appear in the Appellate Court. CHAPTER IV. Judgment upon Appeal. Technical errors . Cr. P., 482. Review. Cr. P., 467 May reverse, affirm or modify. New trial. Cr. P., 483. Place of new trial. Cr. P., 484. Defendant, when to be discharged. Cr. P., 485. Judgment to be executed. Cr. P., 486. Judgment of ap- pellate Court. Cr. P., 487. Jurisdiction of appellate court. Cr. P., 489. Section 8070. Court to give judgment without regard to technical errors. 8071. What may be reviewed on an ap- peal by defendant from a judg- ment. 8072 . May reverse, affirm, or modify the judgment, and order new trial. 8073. New trial, where to be had. Section 8074. Defendant, when to be discharged on reversal of judgment, 8075. Judgment to be executed on affirm- ance. 8076. Judgment of appellate court, how entered and remitted. 8077. Jurisdiction of appellate court ceases after judgment remitted. 1 Section 8070. After hearing the appeal, 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. Sec. 8071. Upon an appeal taken by the defendant from a judgment, the Court may review any intermediate order or ruling involving the merits, or which may have affected the judgment. Sec. 8072. The Court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm or modify any or all the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial. Sec. 8073. When a new trial is ordered, the cause shall be remanded to the District Court of the county from which the appeal was taken. Sec. 8074. If a judgment against the defendant is re- versed without ordering a new trial, the Appellate Court must, if he is in custody, direct him to be discharged there- from; or if on bail, that his bail be exonerated; or if money was deposited instead of bail, that it be refunded to the de- fendant. Sec. 8075. If a judgment against the defendant is af- firmed, the original judgment must be enforced. Sec. 8076. When the judgment of the Appellate Court is given, it must be entered in the minutes, and a certified copy of the entry forthwith transmitted to the Clerk of the Court from which the appeal was taken. Sec. 8077. After the certificate of the judgment has been remitted to the Court below, the Appellate Court has no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect must be made by the Court to which the certifi- cate is remitted. 840 §§ 8100-8105 BAIL. Tit.X. Ch. 7. TITLE X. MISCELLANEOUS PROCEEDINGS. CHAPTER I. Bail. Section 8100. Admission to bail denned. Taking of bail defined. Offense not bailable. In what cases defendant may be ad- mitted to bail before conviction. In what cases he may be admitted to bail after conviction and upon appeal. Nature of bail. When bail is matter of discretion, notice of application must be given to district attorney. What magistrates may admit to bail. Bail, how put in and form of the un- dertaking. Qualifications of bail. Bail, how to justify. On allowance of bail, defendant to be discharged. When offense is not capital. When offense is capital. Bail on habeas corpus. Form of undertaking. Sections applicable to qualifica- tions, etc. Increasing or reducing bail. Who may admit to bail. Qualifications of bail and how put in, and condition of undertaking. Deposit, when and how made. 8101. 8102. 8103. 8104. 8105. 8106. 8107. 8108. 8109. 8110. 8111. 8112. 8113. 8114. 8115. 8116. 8117. 8118. 8119. 8120. Section 8121. May, after bail is given and before forfeiture. Deposit to be applied to payment of judgment and fine. Surrender, by whom ; when and how made. By whom, etc., the defendant may be arrested for the purpose of a surrender. On a surrender, before forfeiture, money deposited to be refunded, etc. In what cases, and how ordered. When and how forfeiture may be discharged. Forfeiture to be enforced by action . Deposit, when forfeited, how dis- posed of. In what cases defendant may be re- committed . Contents of order. Defendant may be arrested in any county. If for failure to appear for judgment, defendant must be committed. If for other cause, he may be ad- mitted to bail. Bail in such case, by whom taken. Form of the undertaking. Bail must possess what qualifica- tions, how put in. 8122. 8123. 8124. 8125. 8126. 8127. 8128. 8129. 8130. 8131. 8132. 8133. 8134. 8135. 8136. Section 8100. Admission to bail is the order of a compe- tent court or magistrate that the defendant be discharged from actual custody upon bail. Sec. 8101. The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant, accord- ing to the terms of the undertaking, or that the bail will pay to the Territory a specified sum. Sec. 8102. A defendant charged with an offense pun- ishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof or the presumption to be drawn there- from. Sec. 8103. If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right. Sec. 8104. After conviction of an offense not punisha- ble with death, a defendant who has appealed may be ad- mitted to bail : 1. As a matter of right, when the appeal is from a judg- ment imposing a fine only; 2. As a matter of discretion in all other cases. Sec. 8105. If the offense is bailable, the defendant may be admitted to bail before conviction: 1. For his appearance before the magistrate on the ex- amination of the charge, before being held to answer; 841 Admission to bail. Cr. P., 490. / %&y Taking of bail / ^ <£> v. Cr. P., 495. Nature of bail. Cr. P., 496, 497. / I'M |VP Ta.X C/i. /. BAIL. §§8106-8106 2. To appear at the court to which the magistrate is re- quired to return the depositions upon the defendant being held to answer after examination; 3. After indictment, either before the bench warrant is issued for his arrest or upon any order of the court commit- ting him or enlarging the amount of bail, or upon his being surrendered by his bail to answer the indictment in the court in which it is found, or to which it may be transferred for trial. And after conviction, and upon an appeal 1. If the appeal is from a judgment imposing a fine only, on the undertaking of bail, that the will pay the same, or such part of it as the Appellate Court may direct, if the judgment is affirmed or modified, or the appeal is dismissed; 2. If judgment of imprisonment has been given, that he will surrender himself in execution of .the judgment, upon its being affirmed or modified, or upon the appeal being dis- missed; or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the court to which said cause may be remanded, and sub- mit himself to the orders and process thereof. v; Bail, matter cf Sec. 8106. When the admission to bail is a matter of c^pf^gk discretion, the court or officer to whom the application is made must require reasonable notice thereof to be given to the District Attorney of the county, what magis- Sec. 8107. When the defendant has been held to answer aSaSt to ban. upon an examination for a public offense, the admission to cr. p., 498. bail may be by the magistrate by whom he is so held, or by any magistrate who has power to issue the writ of habeas corpus. Ban, form of Sec. 8108. Bail is put in by a written undertaking, ex- c?dprt479g' ecuted by two sufficient sureties (with or without the de- fendant, in the discretion of the magistrate), and acknowl- edged before the court or magistrate, in substantially the following form: An order having been made on the day of A. D. eighteen by A. B., a Justice of the Peace of County (or as the case may be), that C. D. be held to answer upon a charge of (stating briefly the nature of the offense), upon which he has been admitted to bail in the sum of dollars; we E. F. and G. H. (stating their place of residence), hereby undertake that the above named C. D. will appear and answer the charge above mentioned, in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the court, and if convicted, will appear for judgment and render himself in execution thereof, or if he fails to perform either of these conditions, that we will pay to the people of the Territory of Idaho, the sum of dollars (inserting the sum in which the defendant is admitted to bail). Qualifications of Sec. 8109. The qualifications of bail areas follows: cr!1,p.,5oo. 1- Each of them must be a resident, householder, or free holder within the Territory; but the court or magistrate may refuse to accept any person as bail who is not a resident of the county where bail is offered; 2. They must each be worth the amount specified in the undertaking, exclusive of property exempt from execution; but the court or magistrate, on taking bail, may allow more than two sureties to justify severally in amounts less than 842 »VY\ 8S 8110-8117 BAIL. Tit. X. Ch. I. that expressed in the undertaking, if the whole justification be equivalent to that of sufficient bail. Sec. 8110. The bail must in all cases justify by affida- vit taken before the magistrate, that they each possess the qualifications provided in the preceding section. The mag- istrate may further examine the bail upon oath concerning their sufficiency, in such manner as he may deem proper. Sec. 8111. Upon the allowance of bail and the execu- tion of the undertaking, the magistrate must, if the defend- ant is in custody, make and sign an order for his discharge, upon the delivery of which to the proper officer the defend- ant must be discharged. Sec. 8112. When the offense charged in the indictment is not punishable with death, the officer serving the bench warrant must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he is arrested, for the purpose of giving bail. Sec. 8113. If the offense charged in the indictment is punishable with death, the officer arresting the defendant must deliver him into custody, according to the command of the bench warrant. Sec. 8114. When the defendant is so delivered into custody, he must be held by the Sheriff, unless admitted to bail on examination upon a writ of habeas corpus. Sec. 8115. The bail must be put in by a written under- taking, executed by two sufficient sureties (with or without the defendant, in the discretion of the court or magistrate), and acknowledged before the court or magistrate, in sub- stantially the following form: An indictment having been found on day of A. D. eighteen , in the District Court of the County of , charging A. B. with the crime of (designating it generally), and he having been admitted to bail in the sum of dollars, we, C. D. and E. T., of (stating their place of residence), hereby undertake that the above named A. B. will appear and answer the indictment above mentioned, in whatever court it may be prosecuted, and will at all times render himself amenable to the orders and process of the court, and, if convicted, will appear for judgment and render himself in execution thereof; or, if he fails to perform either of these conditions, that we will pay to the people of the Territory of Idaho, the sum of dollars (inserting the sum in which the defendant is admit- ted to bail). Sec. 8116. The provisions contained in this chapter in relation to bail before indictment, apply to the qualifications "of the bail, and to all the proceedings respecting the putting in and justifying of bail and incident thereto. Sec. 8117. After a defendant has been admitted to bail upon an indictment, the court in which the charge is pend- ing may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the court may order the defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the District Attorney. 843 Bail, how to justify. Cr.P.,501, 50'2. /Zfo Defendant to be / ^ discharged, when. N. S. When offense is /'Z- j v not capital. Cr. I\, 503. When offense is ' 2^0 u capital. Cr. P., 504. Bail on habeas corpus . Cr. P., 505. Form of under- taking. ^ Cr. P., 506. Sections applicable. Cr. P.. 507. Increase or re- /^ ~ duction of bail. ' *- 1 N. S. Tit. X. Ch. I. BAIL. §§8118-8126 .,., ,. ( Who may admit / / , to bail. Cr. P., SOS. Qualifications of ri rf'i of p., 510. DepoBit, when and how made. Cr. P., 571. . / Deposit. I^V Cr. P., 512. Ml ■ /3" Payment of fine, etc. Cr. P., 513. Surrender. Cr. P., 515, 514 Defendant may be arrested for surrender, by whom. Cr. P., 516. When money to be refunded on surrender. Cr. P., 517. 1« Forfeiture, in what cases and how ordered. Cr. P., 518, 510. Sec. 8118. In cases in which defendant may be admit- ted to bail upon an appeal, the order admitting him to bail may be made by any magistrate having the power to issue a writ ot habeas corpus, or by the magistrate before whom the trial was had. Sec. 8119. The bail must possess the qualifications, and must be put in in all respects as provided in this chapter, ex- cept that the undertaking must be conditioned as prescribed for undertakings of bail on appeal. Sec. 8120. The defendant at anytime after an order admitting him to bail, instead of giving bail may deposit with the Clerk of the Court in which he is held to answer, the sum mentioned in the order, and upon delivering to the officer in whose custody he is, a certificate of the deposit, he must be discharged from custody. Sec. 8121. If the defendant has given bail, he may at any time before the forfeiture of the undertaking, in like manner deposit the sum mentioned in the recognizance, and upon the deposit being made, the bail is exonerated. Sec. 8122. When the money has been deposited, if it remains on deposit at the time of the judgment for the pay- ment of a fine, the Clerk must, under the direction of the court, apply the money in satisfaction thereof, and after satisfying the fine and costs, must refund the surplus, if any, to the defendant. Sec. 8123. At anytime before the forfeiture of their undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the officer to whose custody he was committed at the time of giving bail in the following manner : 1. A certified copy of the undertaking of the bail must be delivered to the officer, who must detain the defendant in his custody thereon as upon a commitment, and by a certifi- cate in writing acknowledge the surrender; 2. Upon the undertaking and the certificate of the officer, the court in which the action or appeal is pending may, upon notice of five days to the District Attorney of the county, with a copy of the undertaking and a certificate, order thai the bail be exonerated, and on filing the order and the papers used on the application, they are exonerated accord- ingly. Sec. 8124. For the purpose of surrendering the defend- ant, the bail, at any time before they are finally discharged, and at any place within the Territory, may themselves ar- rest him, or by a written authority indorsed on a certified copy of the undertaking, may empower any person of suit- able age and discretion to do so. Sec. 8125. If money has been deposited instead of bail, and the defendant at any time before the forfeiture thereof, surrenders himself to the officer to whom the commitment was directed in the manner provided in the last two sections, the court must order a return of the deposit to the defendant upon producing the certificate of the officer showing the sur- render, and upon a notice of five days to the District Attor- ney, with a copy of the certificate. Sec. 8126. If without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court may 844 §§ 8127-8134 BAIL. Tit.X. Ch.I. be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon the minutes and the undertaking of bail, or the money deposited instead of bail, as the case may be, is thereupon declared forfeited. But if at any time before the final ad- journment of the court, the defendant or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. Sec. 8127. If the forfeiture is not discharged, as pro- vided in the last section, the District Attorney may, at any time after the adjournment of the court, proceed by action only against the bail upon their undertaking. Sec. 8128. If, by reason of the neglect of the defend- ant to appear, money deposited instead of bail is forfeited, and the forfeiture is not discharged or remitted, the clerk with whom it is deposited must, immediately after the final adjournment of the court, pay over the money de- posited to the County Treasurer. Sec. 8129. The court to which the committing magis- trate returns the depositions, or in which an indictment or appeal is pending, or to which a judgment on appeal is re- mitted to be carried into effect, may, by an order entered upon its minutes, direct the arrest of the defendant and his commitment to the officer to whose custody he was com- mitted at the time of giving bail, and his detention until legally discharged in the following cases: 1. When, by reason of his failure to appear, he has in- curred a forfeiture of his bail, or of money deposited in- stead thereof; 2. When it satisfactorily appears to the court that his bail, or -either of them, are dead or insufficient, or have re- moved from the Territory; 3. Upon an indictment being found in the cases pro- vided in section 7719. Sec. 8130. The order for the recommitment of the de- fendant must recite generally the facts upon which it is founded, and direct that the defendant be arrested by any sheriff, constable, marshal, or policeman in this Territory, and committed to the officer in whose custody he was at the time he was admitted to bail, to be detained until legally discharged. Sec. 8131. The defendant may be arrested pursuant to the order, upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest, except that when arrested in another county the order need not be in- dorsed by a magistrate of that county. Sec. 8132. If the order recites, as the ground upon which it is made, the failure of the defendant to appear for judgment upon conviction, the defendant must be commit- ted according to the requirement of the order. Sec. 8133. If the order be made for any other cause, and the offense is bailable, the court may fix the amount of bail, and may cause a direction to be inserted in the order that the defendant be admitted to bail in the sum fixed, which must be specified in the order. Sec. 8134. When the defendant is admitted to bail, the bail may be taken by any magistrate in the county, having 845 Forfeiture, how / j ( > C^ enforced. Cr. P., 520. Deposit, when / > >. -. forfeited. ' J ° / Cr. P., 521. In what cases defendant -, . committed. / cS / C Cr. P., 522. Contents of / ~2 / / order. / r/u^ Cr. P., 527. Tit. X. Ch. II. WHO MAY BE WITNESSES IN CRIMINAL ACTIONS. §§ 8135-8143 j,L authority in a similar case to admit to bail, upon the hold- ing of the defendant to answer before an indictment, or by any other magistrate designated by the court. Sec. 8135. When bail is taken upon the recommitment of the defendant, the undertaking must be in substantially the following forms : An order having been made on the day of • , A. D. eighteen , by the court (naming it), that A. Form of undertaking. Cr. P., 528. W] Bail, qualifi- cations . Cr. P., 529. B. be admitted to bail in the sum of dollars in an action pending in that court against him in behalf of the Territory of Idaho, upon an (information, presentment, in- dictment, or appeal, as the case may be), we, C. D. and E. F., of (stating their places of residence,) hereby undertake that the above named A. B. will appear in that or any other court in which his appearance may be lawfully required up- on that (information, presentment, indictment, or appeal, as the case may be), and will at all times render himself amenable to its orders and process and appear for judg- ment and surrender himself in execution thereof: or if he fails to perform either of these conditions, that we will pay to the Territory of Idaho the sum of dollars (in- sert the sum in which the defendant is admitted to bail). Sec. 8136. The bail must possess the qualifications and must be put in, in all respects in the manner prescribed in this chapter. CHAPTER II. Who may be Witnesses in Criminal Actions. Section 8141- Who are competent witnesses. 8142. When husband and wife are competent witnesses. not Section 8143. When the defendant is not a com- petent witness. W Witnesses who are competent. Cr., 12, 23. 47 H- |T^ Section 8141. The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this Code. lusband and Sec. 8142. Except with the consent of both, or in cases nfe, witnesses. o^ crjmmai violence upon one by the other, neither husband nor wife are competent witnesses for or against each other in a criminal action or proceeding to which one or both are parties. Sec. 8143. A defendant in a criminal action or proceed- ing to which he is a party, is not, without his consent, a competent witness for or against himself. His neglect or refusal to give such consent shall not in any manner preju- dice him nor be used against him on the trial or proceeding. 846 When defendant not competent. Cr., 12. ;§ 8148-8151 THE ATTENDANCE OF WITNESSES. Tit.X. Ch.lII. CHAPTER III. Compelling the Attendance of Witnesses. Section 8148. Subpoena defined, and who may is- sue. 8149. Form of subpcena. 8150. Subpcena, by whom and how served. 8151. Payment of per diem and mileage of witnesses. Section 8152. Witnesses residing or served with subpcena out of the county, how compelled to attend. 8153. Disobedience to subpcena, etc. 8154. Failure to appear, undertaking for- feited. 8155. Temporary removal of imprisoned witnesses. Section 8148. The process by which the attendance of a witness before a court or magistrate is required is a sub- poena; it may be signed and issued by: 1. A magistrate before whom an information is laid, for witnesses in the Territory, either on behalf of the people or of the defendant: 2. The District Attorney, for witnesses in the Territory in support of the prosecution, or for such other witnesses as the Grand Jury, upon an investigation pending before them may direct; 3. The District Attorney, for witnesses in the Territory, in support of an indictment, to appear before the court in which it is to be tried; 4. The Clerk of the Court in which an indictment is to be tried; and he must, at any time, upon application of the defendant, and without charge, issue as many blank sub- poenas, subscribed by him as Clerk, for witnesses in the Ter- ritory, as the defendant may require. Sec. 8149. A subpoena authorized by the last section must be substantially in the following form: The Territory of Idaho to A. B. : You are commanded to appear before C. D., a justice of the peace of Precinct, in County (or as the case may be), at (naming the place), on (stating the day and hour), as a witness in a criminal action prosecuted by the Territory of Idaho against E. F. Given under my hand this day of , A.D. eigh- teen . G. H., Justice of the Peace, (or "J. K., Dis- trict Attorney", or "By order of the Court, L. M., Clerk," or as the case may be). If book, papers, or documents are required, a direction to the. following effect must be con- tained in the subpcena: "And you are required, also, to bring with you the following" (describing intelligibly the books, papers, or documents required). Sec. 8150. A subpoena may be served by any person, but a peace officer must serve in his county any subpoena delivered to him for service, either on the part of the people or of the defendant, and must, without delay, make a writ- ten return of the service, subscribed by him, stating the time and place of service. The service is made by showing the original to the witness personally and informing him of its contents. Sec. 8151. When a person shall attend before a grand jury, or the District Court, as a witness on behalf of the people, upon a subpoena, or pursuant to an undertaking, such person shall receive the sum of twenty-five cents a mile one 847 Subpoena. / 3 X d Cr. P., 530. Cr. P., 531. Cr. P., 532. Cr. P., 533. Cr. P., 534. Form of subpoena. Cr. P., 535, 530. /3 »- 7 Subpoena, serving of. Cr. P., 537, 538. / 3?-fr Mileage of -wit- •/} . of, Act Fe 1881, \*b7) Tit.X. Ch.IlI. THE ATTENDANCE OF WITNESSES. §§3152-8155 way for each mile actually traveled, but no person can re- ceive more than one mileage under this section, at one term of the District Court; and such person shall also receive one dollar per day for each days actual attendance as such witness. Such mileage and per diem must be paid out of the county treasury of the county where such District Court is held, upon the certificate of the clerk of said court. ?t°t?nPdUanceyo ^EC* 8152. No person is obliged to attend as ax witness witnesses.6 before a court or magistrate out of the county where the wit- Cr. p., 541. ness resides or is served with the subpoena, unless the Judge of the court in which the offense is triable, or a justice of the Supreme Court, or a Probate Judge, upon an affidavit of the District Attorney or prosecutor, or of* the defendant or his counsel, stating that he believes the evidence of the wit- ness is material, and his attendance at the examination or trial necessary, shall indorse on the subpcena an order for the attendance of the witness, subpoena, dis- gEC. 8153. Disobedience to a subpoena, or a refusal to obedience to. , , ,.« .. * , ' . , , , ., cr. p., 542, 544. be sworn or to testily as a witness, may be punished by the court or magistrate as a contempt. A witness disobeying a subpoena issued on the part of the defendant, unless he show good cause for his non-attendance, is liable to the defendant in the sum of one hundred dollars, which may be recovered in a civil action. Failure to Sec. 8154. When a witness has entered into an under- c?Ppar*543. taking to appear, upon his failure to do so the undertaking- is forfeited in the same manner as undertakings of bail. Temporary Sec. 8155. When the testimony of a. material witness imprisoned f or the people is required in a criminal action before a Court witnesses. of Record of this Territory, and such witness is a prisoner in the Territorial prison or in a county jail, an order for his temporary removal from such prison or jail, and for his pro- duction before such court, may be made by the court in which the action is pending, or by a Judge thereof; but in case the prison or jail is out of the county in which the ap- plication is made, such order can only be made upon the af- fidavit of the District Attorney or other person on behalf of the people showing that the testimony is material and nec- essary; and even then the granting of the order is in the discretion of the court or Judge. The order must be execut- ed by the Sheriff of the county in which it is made, whose duty it is to bring the prisoner before the proper court, to safely keep him, and when he is no longer required as a witness, to return him to the prison or jail whence he was taken; the expense of executing such order must be paid by the county in which the order is made. 848 P'&'V \VJ* N. S. §£8160-8167 EXAMINATION OF WITNESSES CONDITIONALLY. Tit.X. Ch.IV CHAPTER IV. Examination of Witnesses Conditionally. Section 8166. If facts on which order was found- ed be disproved, examination not to proceed. 8167. Attendance of witness, how en- forced. 8168. Testimony, how taken and authen- ticated. 8169. Deposition to be transmitted to clerk . 8170. When may be read in evidence. Subject to objections, etc. 8171. Witness in prison. Section 8160. Witnesses to be examined con- ditionally for the defendant, as provided in this chapter. 8161. In what cases defendant may apply for the order. 8162. Application, how made. 8163. Application, to whom made. 8164. Order, when granted and what to contain. 8165. On proof of service, if district at- torney be absent, examination rnust proceed. Section 8160. When a defendant has been held to an- swer a charge for a public offense, he may, either before or after an indictment, have witnesses examined condition- ally, on his behalf, as prescribed in this chapter, and not otherwise. Sec. 8161. When a material witness for the defendant is about to leave the Territory, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally. Sec. 8162. The application must be made upon affida- vit, stating : 1. The nature of the offense charged ; 2. The state of the proceedings in the action ; 3. The name and residence of the witness, and that his testimony is material to the defense of the action ; 4. That the witness is about to leave the Territory, or is so sick or infirm as to afford reasonable grounds for appre- hending that he will not be able to attend the trial. Sec. 8163. The application may be made to the court during the term thereof, or to the Judge in vacation, and must be upon three days notice to the District Attorney. Sec. 8164. If the court or Judge is satisfied that the ex- amination of the witness is necessary, an order must be made that the witness be examined conditionally, at a spec- ified time and place, and that a copy of the order be served on the District Attorney, within a specified time before that fixed for the examination. Sec. 8165. The order must direct that the examination be taken before a magistrate named therein, and on proof being furnished to such magistrate, of service upon the District Attorney of a copy of the order, if no counsel appear on the part of the people, the examination must proceed. Sec. 8166. If the District Attorney or other counsel appear on behalf of the people, and it is shown to the satis- faction of the magistrate, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the Territory, or is not sick and infirm, or that the applica- tion was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed. Sec. 8167. The attendance of the witness may be en- forced by a subpoena, issued by the magistrate before whom the examination is to be taken. Witnesses to be examined conditionally. Or. P., 545. Defendant may apply for order, when. Cr. P., 546. Application, how made. Cr. P., 549. Application, to whom made Cr. P., 550. Order. Cr. P., 551. Order, absence of district attornev. N. S. When examin- ation not to proceed. N. S. Attendance of witness. N. S. 54 849 Tit X. Ch. V. EXAMINATION OF WITNESSES ON COMMISSION. §§ 8168-817& Testimony, bow taken. N. S. Deposition. N. S. When may be read in evidence, etc. Cr. P. 5(35. 8. S. Witness in prison. Sec. 8168. The testimony given by the witness must be reduced to writing and authenticated in the same man- ner as the testimony of a witness taken in support of an in- formation. Sec. 8169. The deposition taken must, by the magis- trate, be sealed up and transmitted to the clerk of the court in which the action is pending or may come for trial. Sec. 8170. The deposition, or a certified copy thereof , may be read in evidence by either party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness, or infirmity, or of his con- tinued absence from the Territory. Upon reading the de- positions in evidence, the same objections may be taken to a question or answer contained therein, as if the witness had been examined orally in court. Sec. 8171. When a material witness for a defendant, under a criminal charge, is a prisoner in the Territorial prison, or in the county jail of a county, other than that in which the defendant is to be tried, his deposition may be taken, on behalf of the defendant, in the same manner pro- vided in the case of a witness who is sick, and the provis- ions of this Chapter, so far as applicable, govern in the ap- plication for, and in the taking and use of, such deposition. Such depositions may be taken before any magistrate or notary public of the county in which the jail or prison is situated. Every officer, before whom testimony is taken by virtue hereof, shall have authority to administer, and must administer, an oath to the witness that his testimony shall be the truth, the whole truth, and nothing but the truth. CHAPTER V. Examination of Witnesses on Commission. Witness residing out of Territory Cr. P. ,545. Defendant may apply for an order. N. S. Commission defined. Cr P., 547. Section 8176. Witness residing out of the Ter- ritory, when to he examined. 8177. When defendant may apply for an order to examine, etc. 8178. Commission defined. 8179. Application made on affidavit. 8180. Application, to whom made. 8181. Order for commission , when granted and stay of proceedings. 8182. Interrogations, how settled and al- lowed. 8183. Direction as to the return of the commission. Section 8184. Commission, how executed. Copy of this section to be annexed to commission. Commission, how returned, when delivered to an agent for that pur- pose. Same. When and how filed. Commission and return to be open for inspection. Copies, etc. Depositions to be read in evidence. Objections thereto, etc. 8185. 8186. 8187. 8188. 8189. Section 8176. When an issue of fact is joined upon an indictment, the defendant may have any material witness, residing out of the Territory, examined in his behalf, as prescribed in this chapter, and not otherwise. Sec. 8177. When a material witness for the defendant resides out of the Territory, the defendant may apply for an order that the witness be examined on a commission. Sec. 8178. A commission is a process issued under the seal of the court and the signature of the clerk, directed to some person designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission. 850 3§ 8179-8184 EXAMINATION OF WITNESSES ON COMMISSION. Tit X. Ch. V Sec. 8179. The application must be made upon affida- vit, stating: 1. The nature of the offense charged; 2. The state of the proceedings in the action, and that an issue of fact has been joined therein; 3. The name of the witness, and that his testimony is material to the defense of the action; 4. That the witness resides out of the Territory. Sec. 8180. The application may be made to the court during the term, or to the Judge in vacation, and must be upon three days notice to the District Attorney. Sec. 8181. If the court or Judge to whom the applica- tion is made is satisfied of the truth of the facts stated, and that the examination of the witnesses is necessary to the attainment of justice, an order must be made that a com- mission be issued to take his testimony, and the court or Judge may insert in the order a direction that the trial of the indictment be stayed for a specified time, reasonably suffi- cient for the execution and return of the commission. Sec. 8182. When the commission is ordered, the de- fendant must serve upon the District Attorney, without de- lay, a copy of the interrogatories to be annexed thereto, with two days' notice of the time at which they will be pre- sented to the court or Judge. The District Attorney may in like manner serve upon the defendant or his counsel, cross- interrogatories, to be annexed to the commission, with the like notice. In the interrogatories either party may insert any questions pertinent to the issue. When the interroga- tories and cross-interrogatories are presented to the court or Judge, according to the notice given, the court or Judge must modify the questions so as to conform them to the rules of evidence, and must indorse upon them his allow- ance and annex them to the commission. Sec. 8183. Unless the parties otherwise consent, by an indorsement upon the commission, the court or Judge must indorse thereon a direction as to the manner in which it must be returned, and may, in his discretion, direct that it be returned by mail or otherwise, addressed to the Clerk of the Court in which the action is pending, designating his name and the place where his office is kept. Sec. 8184. The commissioner, unless otherwise spe- cially directed, may execute the commission as follows : 1. He must publicly administer an oath to the witness, that his answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth; 2. He must cause the examination of the witness to be reduced to writing, and subscribed by him; 3. He must write the answers of the witness as near as possible in the language in which he gives them, and read to him each answer as it is taken down, and correct or add to it until it conforms to what he declares is the truth. 4. If the witness decline answering a question, that fact, with the reason assigned by him for declining, must be stated. 5. If any papers or documents are produced before him and proved by the witness, they, or copies of them, must be annexed to the deposition subscribed by the witness and certified by the commissioner; 851 Application, how made. Cr. P., 549. Application, to whom made . Cr. P., 550. Order for commission. Cr. P., 551, 552. Interrogations, how settled and allowed. Cr. P., 553, 554, 555,556. Direction as to return of con. mission. Cr. P., 557. Commission, how executed. Cr. P., 558, 559. TitX.Ch.V. EXAMINATION OF WITNESSES ON COMMISSION. §§8185-8189 Commission delivered to agent. Cr, P., 560. Same. Cr. P., 561. G. The commissioner must subscribe his name to each sheet of the deposition, and annex the deposition, with the papers and documents proved by the witness, to the com- mission, and must close it up under seal, and address it as directed by the indorsement thereon; 7. If there is a direction on the commission to return it by mail, the commissioner must immediately deposit it in the nearest post office. If any other direction is made by the written consent of the parties, or by the court or Judge, on the commission, as to its return, he must comply with the direction. A copy of this section must be annexed to the commission. Sec. 8185. If the commission and return is delivered by the commissioner to an agent, he must deliver the same to the clerk to whom it is directed or to the Judge of the Court in which the indictment is pending, by whom it may be received and opened, upon the agent making affidavit that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it. Sec. 8186. If the agent is dead, or from sickness or other casualty unable personally to deliver the commission and return, as prescribed in the last section, it may be re- ceived by the clerk or Judge from any other person, upon his affidavit that he received it from the agent, that the agent is dead, or from sickness or other casualty, unable to deliver it; that it has not been opened or altered since the person making the affidavit received it; and that he believes it has not been opened or altered since it came from the hands of the commissioner. Sec. 8187. The clerk or Judge receiving and opening the commission and return must immediately file it, with the affidavit mentioned in the last two sections, in the office of the Clerk of the Court in which the indictment is pend- ing. If the commission and return is transmitted by mail, the clerk to whom it is addressed must receive it from the post office, and open and file it in his office, where it must remain, unless otherwise directed by the court or Judge. Sec. 8 1 88. The commission and return must at all times be open to the inspection of the parties, who migt be fur- nished by the clerk with copies of the same ortany part thereof, on payment of his fees. Sec. 8 1 89. The depositions taken under the commission may be read in evidenae by either party on the trial, upon it being shown that the witness is unable to attend from any cause whatever; and the same objections may be taken to a question in the interrogatories or to an answer in the deposition, as if the witness had been examined orally in court. When and how filed. Cr. P., 562,563. Commission and return open for inspection copies. Cr. P., 564. Depositions, to be read in evidence. Objections thereto. Cr P., 565. 852 SS 8194-8198 sa INSANITY OF THE DEFENDANT. Tit.X. Ch. VI. CHAPTER VI. Inquiry into the Insanity of the Defendant. Section 8194. An insane person cannot be tried, sentenced, or punished for a pub- lic offense. 8195. When doubt arises as to sanity of the defendant, how determined. Stay of proceedings on. 8196. Order of th« trial of the question of insanity. Charge of the court. Insane persons. Cr. P., 566. Sanity, doubts of. Cr. P., 567, 568. Order of trial on questions of insanity. Cr. P., 569, 570. Section 8197. Verdict of the jury and proceedings thereon. 8198. If defendant is committed, it ex- onerates his bail, etc. 8199. Defendant detained in asylum until he becomes sane. Notice given to "whom. 8200. Expense of sending, etc., defendant to asylum, where chargeable. Section 8 1 94. A person cannot be tried, adjudged to pun- ishment, or punished for a public offense, while he is insane. Sec. 8195. When an indictment is called for trial, if a doubt arises as to the sanity of the defendant, the court must order the question to be submitted to a jury; where such doubt arises on the defendant being brought up for judg- ment on conviction, the court must order a jury to be sum- moned from the list of jurors selected by the commissioners for the year, to inquire into the fact; and the trial of the in- dictment or the pronouncing of the judgment must be sus- pended until the question of insanity is determined by the verdict of the jury. Sec. 8196. 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 people may then open their case and offer evidence in support thereof; 3. The parties may then respectively offer rebutting tes- timony only, unless the court, for good reason in further- ance of justice, permit them to offer evidence upon their original cause; 4. When the evidence is concluded, unless the case is sub- mitted to the jury on either or both sides without argument, the counsel for the people must commence, and the defend- ant or his counsel may conclude the argument to the jury; o. 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. In other- cases the argument may be restricted to one counsel on each side; 6. The court must then charge the jury, stating to them charge of court. all matters of law necessary for their information in giving their verdict. Sec. 8197. If the jury find the defendant sane, the trial of the indictment must proceed, or judgment may be pro- nounced, as the case may be. If the jury find the defendant insane, the trial or judgment must be suspended until he becomes sane, and the court, if it deems his discharge dan- gerous to the public peace or safety, may order that he be in the meantime committed by the Sheriff to the Territorial insane asylum, and that upon his becoming sane he be re- delivered to the sheriff. Sec. 8198. The commitment of the defendant, as men- tioned in the last section, exonerates his bail, or entitles a person, authorized to receive the property of the defendant, 853 "Verdict of jury proceedings. Cr. P., 571, 572. When bail exonerated . Or. P., 573. Tit. X. Ch. VII. CERTAIN PUBLIC OFFENSES. §§ 8199-8207 When defendant becomes sane, etc. Cr. P., 574. to a return of any money he may have deposited instead of bail. Sec. 8199. If the defendant is received into the asylum, he must be detained there until he becomes sane. When he becomes sane, the superintendent must give notice of that fact to the sheriff and District Attorney of the county. The sheriff must thereupon, without delay, take the defendant from the asylum, and place him in proper custody until he is brought to trial or judgment, as the case may be, or is legally discharged. Sec. 8200. The expenses of sending the defendant to the asylum, of keeping him there, and of bringing him back, are in the first instance chargeable to the county in which the indictment was found; but the county may re- cover them from the estate of the defendant, if he have any, or from a relative, town, city, or county bound to provide for and maintain him elsewhere. Expenses, etc where chargeable . Cr. P., 575. Compromising certain offenses. Cr. P., 661. To be by permission of court. Cr. P., 662, 663 No other compromise lawful . Cr.P., 664. CHAPTER VII. Compromising Certain Public Offenses by Leave of Court. Section 8205. Certain offenses for which the party injured has a civil action may be compromised. Section 8206. Compromise to be by permission of court. 8207. No public offense to be compromised except as herein provided. Section 8205. When a defendant is held to answer on a charge of misdemeanor, for which the person injured by the act constituting the offense has a remedy by a civil ac- tion, the offense may be compromised as provided in the next section, except when it is committed: 1. By or upon an officer of justice, while in the execu- tion of the duties of his office; 2. Riotously; 3. With an intent to commit a felony. Sec. 8206. If the party injured appears before the court to which the depositions are required to be returned, at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be dis- charged therefrom; but in such case the reasons for the or- der must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the same offense. Sec. 8207. No public offense can be compromised, nor can any proceeding or prosecution for the punishment there- of upon a compromise be stayed, except as provided in this Chapter. 854 §§ 8212-8222 DISMISSAL OF ACTION.— CORPORATIONS. Tit. X. Ch. V1II-IX. CHAPTER VIII. Dismissal of the Action for want of Prosecution or Otherwise. Section 8215. Court may order action dismissed, when. Nolle prosequi abolished. Dismissal a bar in misdemeanor, but not in felony. 821G 8217 Section 8212. When action may be dismissed. 8213. Court may order action to be con- tinued and discharge defendant from custody, when and how. 8214. If action dismissed, defendant to be discharged. Section 8212. The Court, unless good cause to the con- trary is shown, must order the prosecution or indictment to be dismissed, in the following cases: 1. When a person has been 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; 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial at the next term of the Court in which the indictment is triable, after it is found. Sec. 8213. If the defendant is not indicted or tried, as provided in the last section, and sufficient reason therefor is shown, the Court may order the action to be continued from term to term, and in the meantime may discharge the de- fendant from custody on his own undertaking of bail for his appearance to answer the charge at the time to which the action is continued. Sec. 8214. If the Court directs 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. . Sec. 8215. The Court may, either of its own motion or upon the application of the District Attorney, and in f uther- ance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. Sec. 8216. The entry of a nolle prosequi is abolished, and neither the Attorney General nor the District Attorney can discontinue or abandon a prosecution for a public offense, except as provided in the last section. Sec. 8217. An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony. When action may be dismissed. Cr P., 576, 577. Action continued and defendant dischargedon his own recognizance. Cr. P., 578. When defendant discharged. Cr. P., 579. Dismissal of action. Cr. P., 580. Nolle prosequi abolished. Cr. P., 581. Dismissal, when a bar. Cr. P., 582. CHAPTER IX. Proceedings Against Corporations. Section. 8222. Summons upon information, etc., against ; by whom issued and when returnable. 8223. Form of summons. 8224. When and how served. 8225. Examination of charge. Section 8226. Certificate of magistrate, and return thereof with depositions. If magistrate certify that there is sufficient cause, grand jury to in- vestigate. Appearance and plea. Fine on conviction, how collected. 8227. 8228. 8229. Section 8222. Upon an information or presentment against a corporation, the magistrate must issue a summons signed by him, with his name of office, requiring the corpor- 855 Summons upon iuformation. Cr. P., 583. Tit. X. Ch. X. ENTITLING AFFIDAVITS. §§ 8223-8234 Form of summons. Cr. P., 584. ation to appear before him at a specified time and place, to an- swer the charge, the time to be not less than ten days after the issuing of the summons. Sec. 8223. The summons must be substantially in the following form: County of (as the case may be) : The Territory of Idaho to the (naming the corporation); You are hereby summoned to appear before me at (nam- ing the place), on (specifying the day and hour), to answer a charge made against you upon the information of A. B. (or the presentment of the Grand Jury of the county, as the case may be), for (designating the offense generally). Dated at the city or precinct of- — , this— —day of , eighteen When and.how served. Cr. P., 585. Examination of charge . Cr. P., 586. Certificate of magistrate . Cr. P., 587. When jury to investigate, etc. Cr. P., 588. Appearance and plea. Cr. P., 589. Fine on conviction . Cr. P., 590. G. H., Justice of the Peace. (Or as the case may be.) Sec. 8224. The summons must be served at least five days before 1Jie 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. Sec. 8225. At the appointed time in the summons the magistrate must proceed to investigate the charge in the same manner as in the case of a natural person, so far as these proceedings are applicable. Sec. 8226. After hearing the proofs, the magistrate must certify upon the deposition, either that there is or is not sufficient cause to believe the corporation guilty of the offense charged, and must return the deposition and certifi- cate to the Clerk of the District Court of the county. Sec. 8227. If the magistrate returns a certificate that there is sufficient cause to believe the corporation guilty of the offense charged, the Grand Jury may proceed thereon as in case of a natural person held to answer. Sec. 8228. If an indictment is found, the corporation may appear by counsel to answer the same. If it does not thus appear, a plea of not guilty must be entered, and the same proceedings had thereon as in other cases. Sec. 8229. When a fine is imposed upon a corporation on conviction, it may be collected by virtue of the order im- posing it by the Sheriff of the county, out of its real and per- sonal property, in the same manner as upon an execution in a civil action. CHAPTER X. Affidavit defect- ively entitled, valid . Cr. P., 591. Entitling Affidavits. Section 8234. Affidavits defectively entitled, valid. Section 8234. It is not necessary to entitle an affidavit or deposition in the action, whether taken before or after indictment, or upon an appeal; but if made 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 intelligibly refer to the proceeding, indictment or appeal in which it is made. 856 §§8236-8243 EKKORS.-DISPOSAL OF PROPERTY STOLEN. Tit. X. Ch.XI-XlI. CHAPTER XL Errors and Mistakes. Section 8236. vVhen not material. Section 8236. Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it in- valid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right. CHAPTER XII. Disposal of Property Stolen or Embezzled. Section 8238. When it comes into the custody of the peace officer he must hold it subject to the order of the magis- trate. 8239. Order for its delivery to owner. 8240. When it comes into the custody of the magistrate he must deliver it to owner. Section 8241. Court in which trial is had may or- der its delivery. 8242. If not claimed in six months to be delivered to County Treasurer. 8243. Receipt by officers for money, etc., taken from a person arrested for a public offense. matetiak Cr Section 8238. When property, alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it subject to the order of the magistrate au- thorized by the next section to direct the disposal thereof. Sec. 8239. On satisfactory proof of the ownership of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling it, must order it to be delivered to the owner, on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property. Sec. 8240. If property stolen or embezzled comes into custody of the magistrate, it must be delivered to the owner on satisfactory proof of his title, and on his paying the nec- essary expenses incurred in its preservation, to be certified by the magistrate. Sec. 8241. If the property stolen or embezzled has 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. Sec. 8242. If the property stolen or embezzled is not claimed by the owner before the expiration of six months from the conviction of a person for stealing or embezzling it, the magistrate or other officer having it in custody must, on the payment of the necessary expenses incurred in its preservation, deliver it to the County Treasurer, by whom it must be sold and the proceeds paid into the County Treasury. Sec. 8243. When money or other property is taken from a defendant, arrested upon a charge of a public of- fense, the officer taking it must, at the time give duplicate receipts therefor, specifying practically the amount of mon- ey or the kind of property taken; one of which receipts he must deliver to the defendant and the other of which he must forthwith file with the Clerk of the Court to which the depositions and statement are to be sent. 857 Disposal of stolen property. Cr. P., 593 Order for delivery . Cr. P., 594. Cr.,G6. Magistrate must deliver, when. Cr. P., 595. Court may order delivery. Cr. P..59G. When delivered to county treasurer. Cr. P., 597. Receipt by officers, etc. Cr. P., 59*. Tit X. Ch. XIII. REPRIEVES, COMMUTATIONS, AND PARDONS. §§8248-8253 Power of Govern- or to grant re- prieves, commu- tations and par- dons N. S. Reprieves, etc., to be communi- cated to Legis- lature . N. S. Report of case N. S. Notice to dis- trict attorney . N. S. Publication of notice . N. S. Sections not applicable N. S. CHAPTER XIII. Reprieves, Commutations, and Pardons. Section 8251. Notice to District Attorney of ap- plication for pardon. , Publication of notice. When preceding sections are not applicable. 8252. 8253. Section. 8248. Power of Governor to grant re- prieves, commutations, and par- dons. 8249. Governor to communicate to the Legislature reprieves, etc. 8250. Report of case, how.and from whom required. Section 8248. The power of the Governor to grant pardons and reprieves, and remit fines and forfeitures for offenses against the laws of the Territory, is conferred by section one thousand eight hundred and forty-one of the Revised Statutes of the United States; and in compliance therewith he may grant pardons and reprieves, and com- mutations after conviction, upon such conditions and with such restrictions and limitations as he may think proper. Sec. 8249. He must, at the beginning of every session, communicate to the Legislature each case of reprieve, com- mutation, 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, and the reasons for granting the same, Sec. 8250. When an application is made to the Gov- ernor for a pardon, he may require the judge of the Court before which the conviction was had, or the District Attor- ney by whom the action was prosecuted, to furnish him, without delay, with a statement of the facts proved on the trial, and of any other facts having reference to the pro- priety of granting or refusing the pardon. Sec. 8251. At least ten days before the Governor acts upon an application for a pardon, written notice of the in- tention 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 to the Governor. Sec. 8252. Unless dispensed with by the Governor, a copy of the notice must also be published for thirty days from the first publication, in a paper in the county in which the conviction was had, or if no paper is published in the county, in a paper published at the capital of the Territory. Sec. 8253. The provisions of the two preceding sections are not applicable: 1. When there is imminent danger of the death of the person convicted or imprisoned ; 2. When the term of imprisonment of the applicant is within ten days of its expiration. 858 §§ 8280-8281 PROBATE AND JUSTICES' COURTS. Tit XL Ch.I. TITLE XI. OF PROCEEDINGS IN PROBATE AND JUSTICES' COURTS AND APPEALS TO THE DISTRICT COURT. CHAPTER I. Proceedings in Probate and Justices' Courts. 8281. 8282 8283. 8284. 8285. 8236. 8287. 8288. B289. 8290. 8291 . 8292. 8293. 8294. 8295. 8296. 8297. 8298. Section 8299. Proceedings on plea of guilty or on conviction. Judgment of fine may direct im- prisonment. Defendant, on acquittal, to be dis- charged. Order that prosecutor pay costs. Judgment against prosecutor for costs. Judgment, when to be rendered. When defendant may move for a new trial or in arrest of judgment. New trial, grounds of. Grounds of motion in arrest of judgment. Judgment to be entered in the min- utes. If judgment of acquittal or impos- ing a fine only, defendant to be discharged. Judgment of imprisonment, how executed. Judgment that defendant be im- prisoned until he pay a fine, how executed. Fines, disposition of. Defendant may be admitted to bail . Subpoenas. Entitling affidavits . 8300. 8301. 8302. 8303. 8304. 8305. 8306. 8307. 8308. 8309. 8310. 8311. 8312. 8313. 8314. Section 82^0 Proceedings must be commenced by complaint . When warrant of arrest must issue . Form of warrant. Minutes, how kept. The plea, and how put in . Issue, how tried. Change of venue, when granted. Upon change of venue, papers, etc . , must be transmitted. Proceed- ings on change of venue. Postponement of trial . Defendant to be present. Jury trial, when to be demanded. Formation of jury. Challenges . Oath of jurors Trial, how conducted. Court to decide questions of law, but not to charge in respect to mat- ters of fact. Jury may decide in court, or retire . Oath of officer on their retirement. Verdict of jury, how delivered and entered. Verdict, when several defendants are tried together. Jury, when to be discharged with- out a verdict. If discharged, defendant may be tried again. Section 8280. All proceedings and actions before Pro- Proceedings. bate and Justices' Courts for a public offense of which such fenced1" courts have jurisdiction, must be commenced by complaint cr. p., 599. under oath, setting forth the offense charged, with such particulars of time, place, person, and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint. Sec. 8281. If the Probate Judge or Justice of the Peace when warrant is satisfied therefrom that the offense complained of has crU8piacoi" been committed, he must issue a warrant of arrest, which must be substantially in the following form: County of The Territory of Idaho to any Sheriff, Constable, Marshal, or Policeman, in this Territory: Complaint, upon oath, having been this day made before me (Justice of the Peace or Probate Judge, as the case may be), 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 before me forthwith at (naming the place). Witness my hand at , this day of , A. D. (And if in Probate Court, seal of court). 859 A. B. Tit. XL Ch.I. PROBATE AND JUSTICES' COURTS. §§ 8282-8291 \&y S^> 3* aH Minutes, how kept. Cr. P., 604. Plea, how put in. Cr. P , GO?. Issue, how tried. Cr. P., 602,603. Change of venue, when granted. N. S. Change of venue, etc. N. S. Postponement of trial . Cr. P., 602. Defendant to be present. Cr. P., 603. Jury trial, how waived . Cr. P., 603. Challanges. Cr. P., 6uo, 606. Oath of jurors. Cv. P., 608. Sec. 8282. A docket must be kept by the Justice of the Peace, or by the Clerk of the Probate Court, in which must be entered each action and the proceedings of the court therein. Sec. 8283. 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. Sec. 8284. Upon a plea other than a plea of guilty, if the parties waive a trial by jury, and an adjournment or change of venue is not granted, the court must proceed to try the case. Sec. 8285. If the action or proceeding is in a Probate or Justice's Court, a change of the place of trial may be had at any time before the trial commences : 1. When it appears from the affidavit of the defendant that he has reason to believe, and does believe, that he can- not have a fair and impartial trial before the Probate Judge or Justice about to try the case, by reason of the prejudice or bias of such Judge or Justice, the cause must be trans- ferred to a Justice of the same or an adjoining Precinct; 2. When in a Justice's Court it appears from affidavits that the defendant cannot have a fair and impartial trial, by reason of the prejudice of the citizens of the precinct, the cause must be transferred to a justice of a precinct where the same prejudice does not exist. Sec. 8286. When a change of the place of trial is order- ed, the Judge or 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 proceed- ings; and upon receipt thereof, the Justice to whom they are delivered must proceed with the trial in the same man- ner as if the proceeding or action had been originally com- menced in his court. Sec. 8287. Before the commencement of a trial in any of the courts mentioned in this chapter, either party may, upon good cause shown, have a reasonable postponement thereof. Sec. 8288. The defendant must be personally present before the trial can proceed. Sec. 8289. A trial by jury may be waived by the con- sent of both parties expressed in open court and entered in the docket. The formation of the jury is provided for in Title III, Part I of the Code of Civil Procedure. Sec. 8290. The same challenges may be taken by either party to the panel of jurors, or to any individual juror, for cause, as on the trial of an indictment for a misdemeanor; but the challenge must in all cases be tried by the court ; the defendant is entitled to four peremptory challenges and the prosecution to three. Sec. 8291. The court must administer to the jury the following oath: "You do swear that you will well and truly 860 §§ 8292-8302 PROBATE AND JUSTICES' COURTS. Tit. XL Ch.I. Trial, how conducted . Cr. P., (309. Court to decide W * J questions of law . Cr. P., 009. Jury may decide, /J-/tf & where . Oath of officer, etc. Cr. P., 010. try this issue between the Territory of Idaho and A. B., the defendant, and a true verdict render according to the evi- dence." Sec. 8292. After the jury are sworn, they must sit togeth- er and hear the proofs and allegations of the parties, which must be delivered in public and in the presence of the de- fendant. Sec. 8293. The court must decide all questions of law which may arise in the course of the trial, but can give no charge to the jury. Sec. 8294. After hearing the proofs and allegations, the jury may decide in court, or may retire for considera- tion. If they do not immediately agree, an officer must be sworn to the following effect: "You do swear that you will keep this jury together in some 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 have agreed upon a verdict, and that you will return them into court when they have so agreed or when ordered by the court." Sec. 8295. The verdict of the jury must in all cases be general. When the jury have agreed on their verdict, they must deliver it publicly to the court, who must enter or cause it to be entered, in the minutes. Sec. 8296. When several defendants are tried together, 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. Sec. 8297. The jury cannot be discharged after the cause is submitted to them until they have agreed upon and rendered their verdict unless for good cause, the court soon- er discharges them. Sec. 8298. 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 ver- dict is rendered. Sec. 8299. When the defendant pleads guilty, or is con- victed either by the court or by a jury, the court must ren- der judgment thereon of fine or imprisonment, or both, as the case may be. Sec. 8300. 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. Sec. 8301. 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 probable cause, it may order the prosecutor to pay the costs of the action, or to give satis- factory security by a written undertaking, with one or more sureties, to pay the same within thirty days after the trial. Sec. 8302. If the prosecutor does not pay the costs, or give security therefor, the court may enter judgment against him for the amount thereof, which may be enforced, in all respects, in the same manner as a judgment rendered in a civil action. Verdict of jury Cr.P.,011. Defendants tried together . Cr. P., 012. Jury, when to be discharged. Cr. P., 012. If discharged, defendant may be again tried. Cr. P., 013. Proceedings on plea of guilty . Cr. P., 014. Judgment may direct imprison- ment. Cr. P., 015. Defendant on acquittal to be discharged. Cr. P., 010. Judgment against prosecut- or for costs. Cr. P.. 017. 861 Tit. XI. Ch. I. PROBATE AND JUSTICES' COURTS. §§ 8303-8312 Judgment rendered, when. Cr. P.,6H>. New trial or arrest of judg- ment. Cr. P., 620. New trial, grounds of. Cr. P., 021. Motion in arrest of judgment. Cr. P., 622. Judgment entered in minutes. Cr. P., 623. When defendant discharged. Cr. P., 624. Judgment of imprisonment. Cr. P., 625. Imprisoning defendant, when. N. S. Defendant dis- charged, when. Cr. P., 626, 627. Admittance to bail. Cr. P., 628. Sec. 8303. After a plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former con- viction or acquittal, the court must appoint a time for rendering judgment, which must not be more than two days nor less than six hours after the verdict is rendered, and must hold the defendant to bail to appear for judgment, and in default of bail he must be committed. Sec. 8304. At any time before judgment, defendant may move for a new trial or in arrest of judgment. Sec. 8305. A new trial may be granted in the follow- ing cases: 1. When the trial has been had in the absence of the defendant, unless he voluntarily absent himself, with full knowledge that a trial is being had; 2. When the jury has received any evidence out of court; 3. When the jury has separated without leave of the court, after having retired to deliberate upon their verdict, or been guilty of any misconduct tending to prevent a fair and due consideration of the case; 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 there has been error in the decision of the court, given on any question of law arising during the course of the trial; 6. When the verdict is contrary to law or evidence; 7. When new evidence is discovered, material to the de- fendant, and which he could not, with reasonable diligence, have discovered and produced at the trial; but when a motion for a new trial is made upon this ground, the de- fendant must produce at the hearing, the affidavits of the witnesses by whom such newly discovered evidence is ex- pected to be given. Sec. 8306. The motion in arrest of judgment may be founded on any substantial defect in the complaint, and the effect of an arrest of judgment is to place the defendant in the same situation in which he was before the trial was had. Sec. 8307. If the judgment is not arrested, or a new trial granted, judgment must be pronounced at the time ap- pointed and entered in the minutes of the Court. Sec. 8308. If judgment of acquittal is given, on judg- ment imposing a fine only, without imprisonment for non- payment, and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given. Sec. 8309. When a judgment of imprisonment is en- tered, a certified copy thereof must be delivered to the Sheriff, Marshal, or other officer, which is a sufficient war- rant for its execution. Sec. 83 1 0. When a judgment is entered imposing a fine, or ordering the defendant to 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. Sec. 8311. Upon payment of the fine, the officer must discharge the defendant, if he is not detained for any other legal cause. Sec. 8312. The defendant, at any time after his arrest, and before conviction, may be admitted to bail. The pro- 862 §§ 8313-8324 APPEALS TO DISTEICT COURT. Tit. XL Ch.II visions of this Code relative to bail are applicable to bail in Probate and Justices' Courts. Sec. 8313. The Justice or Judge of either of the Courts subpoenas mentioned in this Chapter may issue subpoenas for witnesses and punish disobedience thereof, as provided in Chapter III, of Title X, of Part II of this Code. ^utit£i^f Sec. 8314. The provisions in respect to esterisg/ affida- vits, are applicable to proceedins n : i 3 Co urts mentioned in this Chapter. Entitling affidavits. CHAPTER II. Appeals to District Court. Section 8320. Appeals. 8321. How taken. Notice of appeal. 8322. Undertaking of witnesses to appear on appeal. 8323 . Papers transmitted to the District Court. Section 8324. Bail pending appeal. 8325. Trial de nova in the District Court. 8326. Casts. 8327. Judgment against sureties. Execu- tion must be issued therein. Section 8320. The defendant may appeal to the Dis- trict Court of the county from any judgment of conviction rendered in a criminal action by a Probate or Justice's Court. Sec. 8321. A defendant intending to appeal must give notice of his intention to do so at the time of the trial or rendition of the judgment, and must within ten days after the rendition and entry of the judgment, file with the Judge or Justice of the court wherein the conviction was had, and serve on the District Attorney of the county, a notice of ap- peal entitled in the action setting forth the character of the judgment and the intention of the defendant to appeal therefrom to the District Court. Sec. 8322. When notice of intention to appeal is given by the defendant as provided in the last section, the Judge or Justice may take from each of the material witnesses ex- amined before him on the part of the people, a written un- dertaking with or without sureties, to the effect that he will appear and testify in the District Court upon the appeal, or that he will forfeit the sum of five hundred dollars as pro- vided in case of commitment upon preliminary examination, or if the witness is unable to procure sureties he may be conditionally examined as there provided. Sec. 8323. When an appeal is taken, the Judge or Jus- tice must immediately transmit to the Clerk of the District Court of the county, the complaint, notice of appeal, the dep- ositions of any witnesses examined conditionally as provided in the last section, and any recognizance entered into by the defendant or any witness. Sec. 8324. The party appealing may at any time there- after, if he desires to be released from custody during the pendency of the appeal, or desires a stay of proceedings un- der the judgment until the appeal be disposed of, enter into a recognizance, with two sufficient sureties to be approved by the Judge or Justice, in an amount to be fixed by the Judge or Justice, but not exceeding five hundred dollars in any case, for the payment of any judgment, fine and costs that may be awarded against him on,, appeal, and that he will faithfully prosecute the same and render himself in ex- 863 Act Jan. 1875. Cr. Prac Appeals . 15, , 465. How taken, notice of appeal. Undertaking of witnesses to appear on appeal. Papers trans- mitted to district court. Bail pending appeal. Tit. XL Ch.IL APPEALS TO DISTRICT COURT. j§ 8325-8327 Trial de noco in district court ecution of any judgment or order rendered or entered against him in District Court. Sec. 8325. The Clerk of the District Court must file the papers received and enter the action on the calendar in its order with other criminal cases, and the same must be tried anew in the District Court at the next term thereof, unless for good cause the same be continued. Sec. 8326. The costs in both courts shall abide the event of the trial in the District Court. Sec. 8327. If upon trial in the District Court the defendant is convicted, judgment must be rendered against the defen-. dant and his sureties for the costs in both courts, and for any fine imposed by the District Court; and if such fine and costs be not paid, execution must be issued thereon against the de- fendant and his sureties; but the sureties are not liable on any such judgment or execution beyond the amount of their undertaking; if the defendant fails to appear and prosecute his appeal, judgment must be entered by the District Court against the defendant and his sureties in the amount of the undertaking. Costa. Judgment against sureties, execution must be issued. 864 }§ 8340-8344 OF WRIT OF HABEAS CORPUS. Tit. XII Ch. I. TITLE XII, OF SPECIAL PROCEEDINGS NATURE. OF A CRIMINAL CHAPTER I. Of Writ of Habeas Corpus. Section 8340. Who may prosecute writ. 8341. Application for, how made. 8342. By whom issued, and before whom returnable. 8343. Writ must be granted without de- lay. 8344. Writ, what to contain. 8345. How served. 834(3. Proceedings upon disobedience to writ . 8347. Return, what to contain. 8348. Body must be produced, when. 8349. When hearing may proceed without production of the body . 8350. Hearing on return. 8351. Proceedings on hearing. 8352. When court may discharge party. 8353. When to remand party. 8354. Grounds of discharge in certain cases. 8355. Not to be discharged for defect of form in warrant. 835G. Court may examine witnesses, and discharge, hold to bail or recom- mit. Section 8357. Writ for purpose of bail. 8358. Judge may take bail. 8359. Judge when to remand. 8360. Person in illegal, may be committed to legal, custody. 8301. Disposition of party, pending pro- ceedings on return. 8362. Defect of form in the writ immater- ial, when. 8363. Imprisonment after discharge, in what cases permitted. 8364. Warrant may issue instead of writ, in certain cases. 8365. Warrant may include person charged with illegal detention. 8366. Warrant, how executed. *367. Return and hearing on. 8368. Party may be discharged or remand- ed. 8369. Writ and process may issue and be served at any time. 8370. By whom issued, when returnable. 8371. Where returnable 8372. Damages, by whom recovered, for failure to issue or obey writ. Section 8340. Every person unlawfully committed, detained, confined, or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint. Sec. 8341. Application for the writ is made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf, and must specify: 1. That the person in whose behalf the writ is applied for, is imprisoned or restrained of his liberty, the officer or per- son by whom he is so confined or restrained, and the place where, naming all the parties if they are known, or describ- ing them if they are not known; 2. If the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists; 3. The petition must be verified by the oath or affirmation of the party making the application. Sec. 8342. The writ of habeas corpus may be granted : 1. By the Supreme Court, upon petition on behalf of any person restrained of his liberty in this Territory. When so issued, it may be made returnable before the court, or before any District Court, or any Judge thereof; 2. By the District Courts, or a Judge thereof, upon peti- tion on behalf of any person restrained of his liberty in their respective districts. Sec. 8343. Any court or Judge authorized to grant the w^rit, to whom a petition therefor is presented, must, if it appear that the writ ought to issue, grant the same without delay. Sec. 8344. The writ must be directed to the person having custody of, or restraining the person on whose behalf 55 865 Who may prosecute writ. 8 ses., 468, Sec. 1. Application for, how made. 8 ses., 468, sec. 2. /Y-7J /y? v By whom issued, / y ~7 if^ before whom re- ' ' / turnable. Id., sec. 3. Writ to be immediately granted. Id., sec. 4. Writ, contents of. Id., sec. 5. / y 7^ /*71 Tit. XII. Ch.I. OF WRIT OF HABEAS CORPUS. §§ 8345-8349 n How served. Id., Sec. 6. Id., Sec. 7, 8. vn? Disobedience to writ, proceedings . Id., Sec. 9. fr* 0 Body, when produced. • Id., Sec. 11. When hearing may proceed without body. Id., Sees. 12, 13. the application is made, and must command him to have the body of such person before the court or Judge, before whom the writ is returnable, at a time and place therein specified. Sec. 8345. If the writ is directed to the Sheriff or other ministerial officer of the court, out of which it issues, it must be delivered by the clerk to such officer without delay, as other writs are delivered for service. > If it is directed to any other person, it must be delivered to the Sheriff, and be by him served upon such person by deliver- ing the same to him without delay. If the person to whom the writ is directed cannot be found, or refuses admittance to the officer or person serving or delivering such writ, it may be served or delivered by leaving it at the residence of the person to whom it is directed, or by affixing it to some conspicuous place on the outside, either of his dwelling house or of the place where the party is confined or under restraint. Sec. 8346. If the person to whom the writ is directed, refuses, after service, to obey the same, the court or Judge, upon affidavit, must issue an attachment against such per- son, directed to the Sheriff or Coroner, or an elisor, com- manding him £e forthwith to apprehend such person and bring him immediately before such court or Judge; and upon being so brought, he must be committed to the jail of the county until he makes due return to such writ, or is otherwise legally discharged. Sec. 8347. The person upon whom the writ is served must state in his return, plainly and unequivocally: 1. Whether he has or has not the party in his custody, or under his power or restraint; 2. If he has the party in his custody or power, or under his restraint, he must state the authority and cause of such imprisonment or restraint; 3. If the party is detained by virtue of any writ, war- rant, or other written authority, a copy thereof must be an- nexed to the return, and the original produced and exhibited to the court or Judge on the hearing of such return; 4. If the person upon whom the writ is served had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but has transferred such custody or restraint to an- other, the return must state particularly to whom, at what time and place, for what cause, and by what authority such transfer took place; 5. The return must be signed by the person making the same, and except when such person is a sworn public officer, and makes such return in his official capacity, it must be verified by his oath. Sec. 8348. The person to whom the writ is directed, if it is served, must bring the body of the party in his custody or under his restraint, according to the command of the writ, except in the cases specified in the next section. Sec. 8349. When from sickness or infirmity of the per- son directed to be produced, he cannot, without danger, be brought before the court or Judge, the person in whose custody or power he is, may state that fact in his return to the writ, verifying the same by affidavit. If the court or Return what to contain. Id., Sec. 10. 866 §§ 8350-8354 OF WKIT OF HABEAS CORPUS. Tit XII. Ch.l. Judge is satisfied of the truth of such return, and the return to the writ is otherwise sufficient, the court or Judge may proceed to decide on such return, and to dispose of the mat- ter as if such party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced. Sec. 8350. The court or Judge before whom the writ is returned must, immediately after the return, proceed to hear and examine the return, and such other matters as may be properly submitted to their hearing and consideration. Sec. 8351. The party brought before the court or Judge, on the return of the writ, may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. The court or Judge must there- upon proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and has full power and authority to require and compel the attendance of witnesses, by pro- cess of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case. Sec. 8352. If no legal cause is shown for such impris- onment or restraint, or for the continuation thereof, such court or Judge must discharge such party from the custody or restraint under which he is held. Sec. 8353. The Court or Judge, if the time during which such party may be legally detained in custody has not expired, must remand such party, if it appears that he is detained in custody : 1. By virtue of process issued by any Court or Judge of the United States, in a case where such Court or Judge has exclusive jurisdiction; or 2. By virtue of the final judgment or decree of any com- petent court of criminal jurisdiction, or of any process is- sued upon such judgment or decree. Sec. 8354. If it appears on the return of the writ that the prisoner is in custody by virtue of process from any Court of this Territory, or Judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to the restrictions of the last section: 1. When the jurisdiction of such court or officer has been exceeded ; 2. When the imprisonment was at first lawful, yet by some act, omission, or event which has taken place after- wards, the party has become entitled to a discharge; 3. When the process is defective in some matter of sub- stance required by law, rendering such process void; 4. When the process, though in proper form, has been issued in a case not allowed by law; 5. When the person having the custody of the prisoner is not the person allowed by law to detain him; 6. Where the process is not authorized by any order, judgment, or decree of any court, nor by any provision of law; 867 Heaving on return. Id , sec. 14. Proceedings on hearing. Id., sees. 15, 1G, 17. /#/** /Kfs When court may discharge party. Id., sec. 18. When to remand party. Id., Sec. 19. /V/cT /yr< Grounds of discharge in certain cases . Id., Sec. 20 vf?-> Tit. XII. Ch.I. OF WRIT OF HABEAS CORPUS. Sg 8355-8363 V^ fviVq u<\o \W\ VjC)V IV^3 IVCf* v^ /Y H Form of warrant, defect in. Id., sec. 21. Examination of witnesses, powers of court. Id., sec. 22. Writ for purpose of bail. Id., Sec. 28. Judge may take bail. Id., Sec. 24. Judge, when to remand. Id,, Sec. 25. Person in illegal custody. Id., Sec. 2G Disposition of party, pending proceedings. Id., Sec. 27. Defect of form, etc. Id., Sec. 28. Imprisonment after discharge, etc. Id., Sec. 29. 7. Where a party has been committed on a criminal charge without reasonable or probable cause. Sec. 8355. If any person is committed to prison or is in custody of any officer on any criminal charge by virtue of any warrant of commitment of a Probate Judge or Justice of the Peace, such person must not be discharged on the ground of any mere defect of form in the warrant of com- mitment. Sec. 8356. If it appears to the court or Judge by affida- vit or otherwise, or upon the inspection of the process or warrant of commitment, and such other papers in the pro- ceedings as may be shown to the court or Judge, that the party is guilty of a criminal offense, or ought not to be dis- charged, such court or Judge, although the charge is defec- tive or unsubstantially set forth in such process or warrant of commitment, must cause the complainant or other neces- sary witnesses to be subpoenaed to attend at such time as ordered, to testify before the court or Judge; and upon the examination he may discharge such prisoner, let him to bail if the offense be bailable, or recommit him to custody as may be just and legal. Sec. 8357. When a person is imprisoned or detained in custody on any criminal charge, for want of bail, such per- son is entitled to a writ of habeas corpus for the purpose of giving bail, upon averring that fact in his petition, without alleging that he is illegally confined. Sec. 8358. Any Judge before whom a person has been committed on a criminal charge, may be brought on a writ of habeas corpus, if the same is bailable, may take an under- taking of bail from such person as in other cases, and file the same in the proper court. Sec. 8359. If a party brought before the court or Judge on the return of the writ is not entitled to his discharge, and is not bailed, where such bail is allowable, the court or Judge must remand him to custody or place him under the restraint from which he was taken, if the person under whose custody or restraint he was, is legally entitled there- to. Sec. 8360. In cases wrhere any party is held under ille- gal restraint or custody, or any other person is entitled to the restraint or custody of such party, the Judge or court may order such party to be committed to the restraint or custody of such person as is by law entitled thereto. Sec. 8361. Until judgment is given on the return, the court or Judge before whom any party may be brought on such writ may commit him to the custody of the Sheriff of the county, or place him in such care or under such custody as his age or circumstances may require. Sec. 8362. No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appear therefrom in whose custody or under whose restraint the party impris- oned or restrained is, the officer or person detaining him, and the court or Judge before whom he is to be brought. Sec. 8363. No person who has been discharged by the order of the court or Judge upon habeas corpus can be again imprisoned, restrained or kept in custody for the same cause except in the following cases: 1. If he has been discharged from custody on a criminal 868 £§ 8364-8372 OF WKIT OF HABEAS CORPUS. Tit. XII. Ch.T. Warrant to issue instead of writ, when. Id., Sec. 30. charge, and is afterwards committed for the same offense by legal order or process; 2. If, after a discharge for defect of proof, or for any defect of the process, warrant or commitment in a criminal case, the prisoner is again arrested on sufficient proof and committed by legal process for the same offense. Sec. 8364. When it appears to any court or Judge au- thorized by law to issue the writ of habeas corpus, that any one is illegally held in custody, confinement or restraint, and that there is reason to believe that such person will be carried out of the jurisdiction of the court or Judge before whom the application is made, or will suffer some irrepara- ble injury before compliance with the writ of habeas corpus can be enforced, such court or Judge may cause a warrant to be issued, reciting the facts and directed to the Sheriff, Coroner or Constable of the county commanding such officer to take such person thus held in custody, confinement or re- straint, and forthwith bring him before such court or Judge to be dealt with according to law. Sec. 8365. The court or Judge may also insert in such warrant 'a command for the apprehension of the person charged with such illegal detention and restraint. Sec. 8366. The officer to whom such warrant is deliv- ered must execute it by bringing the person therein named before the court or Judge who directed the issuing of such warrant. Sec. 8367. The person alleged to have such party under illegal confinement or restraint may make return to such warrant as in case of a writ of habeas corpus, and the same may be denied, and like allegations, proofs, and trial may thereupon be had as upon a return to a writ of habeas corpus. Sec. 8368. If such party is held under illegal restraint or custody, he must be discharged; and if not, he must be restored to the care or custody of the person entitled thereto. Sec. 8369. Any writ or process authorized by this chapter may be issued and served on any day or at any time. Sec. 8370. All writs, warrants, process, and subpoenas authorized by the provisions of this chapter must be issued by the Clerk of the Court, and, except subpoenas, must be sealed with the seal of such court, and served and returned forthwith, unless the court or Judge shall specify a particu- lar time for any such return. Sec. 8371. All such writs and process when made re- turnable before a Judge, must be returned before him at the county seat, and there heard and determined. Sec. 8372. If any Judge after a proper application is made, refuses to grant an order for a writ of habeas corpus, or if the officer or person to whom such writ may be di- rected, refuses obedience to the command thereof, he shall forfeit and pay to the person aggrieved a sum not exceeding five thousand dollars, to be recovered by action in any court of competent jurisdiction. Warrant may include officer. Id., Sec. 31. Warrant, how executed. Id., sec. 32. Return and heai'ing, etc. Id., Sec, 33. / * n / ? /iToir ATd 3 Where / r-#i V returnable. / V N. S. Damages. /./"n ./v. Id., Sec. 37. 869 Tit. XII. Ch.II. CORONERS' INQUESTS AND DUTIES. §S 8377-8383 $-1 \S" s\v Coroner to summon jury, when. 8 ses., 567, Sec. 4. Jurors to be sworn. Id., Sec. 6. Witnesses to be summoned. Id., Sec 7. \S"\3 liK Witnesses compelled to attend. Id., Sec. 8. Verdict of jury, contents of. Id., Sec. 9. M^ Testimony in writing. Id., Sec. 10. Exception. Id., Sec. 11. CHAPTER II. Of Coroners' Inquests and Duties of Coroners. Section. Section 83/7. Coroner, to summon jury to in- 8381. Verdict of jury in writing .« quire into cause of death iu cer- 83S2. Testimony in writing, where filed tain cases. 8383. Exception. 8378. Jurors to be sworn. 8384. Coroner to issue warrant. 8379. Witnesses to be summoned. 8385. Form of warrant. 8380. Witnesses compelled to attend. 8386. How served. Section 8377. When a Coroner is informed that a per- son has been killed, or has committed suicide, or has sud- denly died under such circumstances as to afford a reason- able ground to suspect that his death has been occasioned by the act of another by criminal means, he must go to the place where the body is, cause it to be exhumed, if it has been interred, and summon not less than nine nor more than fifteen persons, qualified by law to serve as jurors, to appear before him forthwith, at the place where the body of deceased is, to inquire into the cause of the death. Sec. 8378. When six or more of the jurors attend, they must be sworn by the Coroner to inquire who the person was, and when, where, and by what means he came to his death, and into the circumstances attending his death; and to render a true verdict thereon, according to the evidence offered them, or arising from the inspection of the body. Sec. 8379. Coroners may issue subpoenas for witnesses, returnable forthwith, or at such time and place as they may appoint, which may be served by any competent person. They must summon and examine as witnesses every person who, in their opinion, or that of any of the jury, has any knowledge of the facts, and may summon a surgeon or physician to inspect the body and give a professional opinion as to the cause of the death. Sec. 8380. A witness served with a subpoena may be compelled to attend and testify, or punished by the Coroner for disobedience, in like manner as upon a subpoena issued by a Justice of the Peace. Sec. 8381. After inspecting the* body and hearing the testimony, the jury must render their verdict and certify the same by an inquisition in writing, signed by them, and set- ting forth who the person killed is, and when, where, and by what means he came to his death; and if he was killed, or his death occasioned by the act of another, by criminal means, who is guilty thereof. Sec. 8382. The testimony of the witnesses examined before the Coroners' jury must be reduced to writing by the Coroner, or under his direction, and forthwith filed by him, with the inquisition, in the office of the Clerk of the District Court of the County. Sec. 8383. If, however, the person charged with the commission of the offense is arrested before the inquisition can be filed, the Coroner must deliver the same, with the testimony taken, to the magistrate before whom such per- son may be brought, who must return the same, with the depositions and statement taken before him, to the office of the Clerk of the District Court of the county. 870 §§ 8384-8391 OF SEAECH WARRANTS. Tit. XII. Ch. III. Sec. 8384. If the jury find that the person was killed SSS2St.to i88ue by another, under circumstances not excusable or justifiable id., sec.12. by law, or that his death was occasioned by the act of another by criminal paeans, and the party committing the act is ascertained by-/, inquisition, and is not in custody, the Coroner must issue a warrant, signed by him, with his name of office, into one or more counties, as may be necessary for the arrest of the person charged. Sec. 8385. The Coroner's warrant must be in substan- tially the following form: County of . The Territory of Idaho, to any Sheriff, Constable, Mar- A//7 Form of warrant. Id., Sec. 13. NtT shal, or Policeman in this Territory: An inquisition having been this da}7 found by a Coroner's jury before me, stating that A. B. has come to his death by the act of C. D., by criminal means (or as the case may be, as found by the inquisition), you are' therefore commanded forthwith to arrest the above named C. D., and take him before the nearest or most accessible magistrate in this county. Given under my hand this- day of , A.D. eighteen . E. F., Coroner of the County of- Sec. 8386. The Coroner's warrant may be served in any How served county, and the officer serving it must proceed thereon, in Id» Sec- 14- all respects, as upon a warrant of arrest on an information before a magistrate; when served in another county it need, not be indorsed by a magistrate of that county. /•O? CHAPTER in. Of Search Warrants. Section 8390. Search warrant defined. 8391 . Upon what grounds it may issue. 8392 . It cannot be issued but upon proba- ble cause. 8393. Magistrates must examine, on oath, complainant, etc. 8394. Depositions, what to contain. 8395 . When to issue warrant. 8396. Form of warrant. 8397 . By whom served . 8398. Officer may break open door, etc., to execute warrant. 8399. May break open door, etc., to liber- ate person acting in his aid . 8400. When warrant may be served in the night. 8401 . Within what time warrant must be executed. Section 8402. Officer to give receipt for property taken. Property, how disposed of. Return of warrant and delivery of inventory of property taken. Copy of inventory, to whom de- livered. Proceedings, if grounds of warrant are controverted. Property, when to be restored to person from whom it was taken . Depositions, warrant, etc., to be returned by magistrate to county court. When magistrate may direct de- fendant to be searched in his presence. 8403. 8404. 8405. 8406. 8407. 8408. 8409. Section 8390. A search warrant is an order in writing, in the name of the Territory of Idaho, signed by a magis- trate, directed to a peace officer, commanding him to search for personal property, and bring it before the magistrate. Sec. 8391. It may be issued upon either of the follow- ing grounds: 1. When the property was stolen or embezzled; in which case it may be taken, on the warrant, from any place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or from any 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 871 Search warrant defined. Cr. P., 630. Upon what grounds it may issue. Cr. P., 631 /<~£ 3 /J~2 Tit. XII. Ch.III. OF SEARCH WARRANTS. SS 8392-8398 i^ \Titj l^1\ the 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 from any 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 de- livered it for the purpose of concealing it or preventing its being discovered; in which case it may be taken on the war- rant from such person, or from any place occupied by him or under his control, or from the possession of the person to whom he may have so delivered it. Sec. 8392. A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describ- ing the person, and particularly describing the property and the place to be searched. Sec. 8393. The magistrate must, before issuing the warrant, examine on oath the complainant, and any wit- nesses he may produce, and take their depositions in writ- ing, and cause them to be subscribed by the parties making them. Sec. 8394. The depositions must set forth the facts tending to establish the grounds of the application, or proba- ble cause for believing that they exist. Sec. 8395. If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, 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 magistrate. Sec. 8396. The warrant must be in substantially the following form: County of Probable cause on affidavit. Cr. P.. 632. Magistrates, examine complainant . Cr. P., 633. Depositions, contents of. Cr. P., 634. When to issue warrant. Cr. P., 635. Form of warrant. Cr. P., 636. By whom served. Cr. 1\, G37. Officer may break open, etc. Cr. P., 639. The Territory of Idaho to any Sheriff, Constable, Mar- shal, or Policeman in the county of : Proof, by affidavit, having been this day made before me by (naming every person whose affidavit has been taken), that (stating the grounds of the application, or, if the affidavit be not positive, that there is probable cause for believing that — stating the ground of the application in the same manner), you are therefore commanded, in the day time (or at any time of the day or night, as the case may be) to make im- mediate search on the person of C. D. (or in the house situ- ated describing it or any other place to be searched, with reasonable particularity, as the case may be) for the following property: (describing it with reasonable particularity) ; and if you find the same or any part thereof, to bring it forthwith before me at (stating the place). Given under my hand, and dated this day of , A. D. eighteen . E. T., Justice of the Peace (or as the case may be). Sec. 8397. A search warrant may in all cases be served by any of the officers mentioned in its directions, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution. Sec. 8398. The officer may break open any outer or inner door or window of a house, or any part of a house, or 872 $§ 8399-8408 OF SEARCH WARRANTS. Tit XII. Ch.III Liberating / f~*- ^ j* person. / V J L^ Cr. P., 638. Warrant served in Or arrant served t A _ the night. [ \S 3 J . P., 040. Time of execut- . ing warrant. /pi v Cr. P., 641. Officer to give receipt. / /~ J ^ Cr. P. 642. f V J\T> Property. how disposed of. /, / c? C- Cr. P., 643. any thing therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance. Sec. 8399. He may break open any outer or inner door or window of a house, for the purpose of liberating a person who, having entered to aid him in the execution of the war- rant, is detained therein, or when necessary for his own lib- eration. Sec. 8400. The magistrate must insert a direction in the warrant that it be served in the day time unless the affi- davits are positive that the property is on the person or in the place to be searched, in which case he may insert a di- rection that it be served at any time of the day or night. Sec. 8401. A search warrant must be executed and re- turned to the magistrate who issued it, within ten days after its date; after the expiration of this time the warrant, unless executed, is void. Sec. 8402. When the officer takes property under the warrant, he must give a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose possession it was found; or, in the absence of any person, he must leave it in the place where he found the property. Sec. 8403. When the property is delivered to the magis- trate, he must, if it was stolen or embezzled, dispose of it as provided in Chapter XII, of Title X, of Part II of this Code. If it was taken on a warrant issued on the grounds stated in the second and third subdivisions of section 8391, he must retain it in his possession, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in re- spect to which the property taken is triable. Sec. 8404. The officer must forthwith return the war- rant to the magistrate, and deliver to him a written inven- tory of the property taken, made publicly or in the presence of the person from whose possession it was taken, and of the applicant for the warrant; if they are present, verified by the affidavit of the officer at the foot of the inventory, and taken before the magistrate at the time, to the following effect: "I, R. S., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant." Sec. 8405. 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. Sec. 8406. If the grounds on which the warrant was issued be controverted, he must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and authenticated by the magistrate. Sec. 8407. If it appears 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 w-arrant was issued, the magistrate must cause it to be restored to the person from whom it was taken. Sec. 8408. The magistrate must annex together the de- positions, the search warrant and return, and the inventory, and return them to the next term of the court having power Return of warrant, etc. / ^ / Cr. P., 644. Copy of / r ~i fr inventory. / u ' () Cr. P., 645. Proceedings. / f—^ „ Cr. P., 646, 647. /J 3^ Property, when restored, / t — / . , etc. /v V O Cr. P., 648. Deposition, etc., to be returned. /\J~ Ky / Cr. P., 649. 873 Tit XII. Ch.1V. FUGITIVES FROM JUSTICE. SS 8409-8419 IV Defendant to be searched. Cr. P., 650. to inquire into the offenses in respect to which the search warrant was issued, at or before its opening on the first day. Sec. 8409. When a person charged with a felony is sup- posed by the magistrate before whom he is brought to have on his person a dangerous weapon, or any thing which may be- used as evidence of the commission of the offense, 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 to the order of the court in which the defendant may be tried. * Rewards for *- \j ~n apprehension of fugitives. Cr. P., 651, 157. s^ Fugitives. Cr. P., G52. Issuing warrant Cr. P., 653. Arrest of person charged Cr. P., 654. Kr When and for what time to be committed. Cr. P.. 655. CHAPTER IV. Proceedings Against Fugitives from Justice. Section 8415. Rewards for the apprehension of fugitives from justice. Fugitives from another State or Territory, when to be delivered up. Magistrate to issue warrant. Proceedings for the arrest and com- mitment of the person charged. When and for what time to be com- mitted. His admission to bail. Magistrate must notify District At torney of arrest. Duty of District Attorney. 8416. 8417. 8418. 8419. 8420. 8421. 8422. Section 8423. Pereor arrested, when to be dis- charged . 8424. Magistrate to return his proceedings to the next county court. Pro- ceedings thereon. 8425 . Fugitives from this Territory. Ac- counts of pernons employed in procuring surrender, to be paid out of the Territorial Treasury. 8426. No fee or reward to be paid to or received by any public officer pro- curing the surrender of fugitives, etc. Section 8415. The Governor may off er a reward not ex- ceeding one thousand dollars, payable out of the general fund, 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 with the commission of an offense punishable with death. Sec. 8416. A person charged in any State or Territory of the United States with treason, felony, or other crime, who flees from justice and is found in this Territory, must, on demand of the executive authority of the State or Terri- tory from which he fled, be delivered up by the Governor of this Territory, to be removed to the State or Territory hav- ing jurisdiction of the crime. Sec. 8417. A magistrate may issue a warrant for the apprehension of a person so charged, who flees from justice and is found in this Territory. Sec. 8418. The proceedings for the arrest and commit- 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 Ter- ritory, excejjt that an exemplified 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 magis- trate. Sec. 8419. If from the examination, it appear that the accused has committed the crime alleged, the magistrate by warrant reciting the accusation, must commit him to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may deem reasonable to enable the arrest of the fugitive under the warrant of the executive of this Territory, on the requisition of the execu- tive authority of the State or Territory in which he com- 874 §§ 8420-8426 FUGITIVES FROM JUSTICE. Tit. XII. Ch. IV Admission to /\f~~*J bail. Cr. P., 656. Magistrate to / K6S., 151. 878 §§ 8507-8512 OF THE TERRITORIAL PRISON. Tit. I. Separate sentences. 13 ses., 152. Restored to citizenship. 13ses., 152. Bounty. 13ses., 152. whatever number of days more than one, that he is in pun- ishment are also forfeited; for more than four offenses the warden has power to deprive him, at his discretion, of any portion or all the deduction that the convict may have earned, but not less than as provided for the fourth offense. Sec. 8507. For the purpose of commutation, whenever any convict has been committed under several convictions with separate sentences, they must be construed as one con- tinuous sentence. Sec. 8508. If a convict passes the entire period of his sentence without any violation of the rules and regulations, he is entitled to a certificate thereof from the warden, and on presenting it to the Governor, he may be restored to cit- izenship at the discretion of the Governor. Sec. 8509. When any convict is discharged from the penitentiary he must be furnished the sum of fifteen dollars. Upon exhibiting his discharge to the Governor, the Gov- ernor must certify the same to the Controller, who must thereupon draw his warrant on the general fund in the Ter- ritorial treasury in favor of such discharged convict for said amount. Sec. 8510. That the sum of seventy -five dollars per an- num be appropriated out of any moneys in the Territorial treasury, not otherwise appropriated, to the warden of the Territorial prison of Idaho Territory, to purchase suitable books for a library for the use of the prisoners in said prison. Sec. 8511. The warden to report to the Governor thir- ty days before the meeting of the Legislature, the number and kind of books purchased each year, and the prices paid therefor, the condition of the library, and the effect upon the conduct, mental improvement and morals of the prisoners by reason of the establishment of such library. Sec. 8512. The Controller is authorized to draw his warrant on the Treasurer for the sum of seventy -five dollars each year in favor of the warden of the prison, and the Treasurer is required to pay the same out of any funds not otherwise appropriated. fAct Feb. 10, 1887.1 Purchase of books for Terri- torial prisoners. 14 ses. Warden to report. 14 ses. Warrant each year. 14 ses. 879 Tit. II. OF COUNTY JAILS. §3 8525-8529 TITLE II. OF COUNTY JAILS. \$V County jails, by whom kept, purpose of. Comp. laws, 546. \S<\% \W \lsot) \(jM Rooms required in county jails. Comp. laws, 547. Section 8525 . County jails, by whom kept and for what used. 8526 . Rooms required in county jails . 8527. Prisoners to be classified. 8528. Prisoners committed must be actu- ally confined. 8529 . Sheriff to receive prisoners commit- ted by United States courts. 8530 . Sheriff or Jailer answerable for safe- keeping of such prisoners. 8531 . When jail of contiguous county may be used. 8532. Keeper of jail in contiguous county to receive prisoners. 8533. When jail in contiguous county to cease to be used. 8534. Prisoners to be returned to proper county Prisoners to be classified. Comr». laws, 541." Prisoners committed must be actually confined. Comp. laws, 549. Sheriff must re- ceive prisoners committed by U.S. courts. Comp. laws, 551 [805]. Section 8535. Prisoners may be remdved incase of fire. Prisoners may be removed in case of pestilence. Papers served on Jailer for pris- oner. Guard for jail. Sheriff to receive all persons duly committed. Prisoners on civil process, when not to be received. Prisoners may be required to labor. Rulei and regulations for the per- formance of labor. Commissioners to have care of. Jailer to return list of prisoners. Imprisonment for fine. Governor may order removal of. Expense of keeping, how paid. 8536. 8537. 8538. 8539. 8540. 8541 . 8542. 8543. >-544. 8545. 8546. 8547. Section 8525. The common jails in the several coun- ties of this Territory are kept by the Sheriffs of the counties in which they are respectively situated, and are used as follows: 1. For the detention of persons committed in order to secure their attendance as witnesses in criminal cases; 2. For the detention of persons charged with crime and committed for trial; 3. For the confinement of persons committed for a con- tempt, or upon civil process, or by other authority of law; 4. For the confinement of persons sentenced to imprison- ment therein upon a conviction for crime. Sec. 8526. Each county jail must contain a sufficient number of rooms to allow all persons belonging to either one of the following classes to be confined separately and dis- tinctly from persons belonging to either of the other classes: 1. Persons committed on criminal process and detained for trial; 2. Persons already convicted of crime and held under sentence; 3. Persons detained as witnesses or held under civil pro- cess, or under an order imposing punishment for a contempt; 4. Males separately from females. Sec. 8527. Persons committed on criminal process and detained for trial, persons convicted and under sentence, and persons committed upon civil process, must not be kept or put in the same room, nor shall male and female prison- ers (except husband and wife), be kept or put in the same room. Sec. 8528. A prisoner committed to the county jail for trial or for examination, or upon conviction for a public offense, must be actually confined in the jail until he is legally discharged; and if he is permitted to go at large out of the jail, except by virtue of a legal order or process, it is an escape. Sec. 8529. The Sheriff must receive and keep in the county jail, any prisoner committed thereto by process or order issued under the authority of the United States, until 880 §§ 8530-8537 OF COUNTY JAILS. Tit. II. Sheriff answerable for safe-keeping. Comp. laws, 561. When jail of a contiguous county may be used. Comp. laws, 547. Keeper of jail in contiguous county to receive prisoners . Comp. laws, 547. he is discharged according to law, as if he had been com- mitted under process issued under the authority of this Territory; provision being made by the United States for the support of such prisoner. Sec. 8530. A Sheriff to whose custody a prisoner is committed, as provided in the last section, is answerable for his safe-keeping in the courts of the United States, according to the laws thereof. Sec. 8531. When there is no jail in the county, or when the jail becomes unfit or unsafe for the confinement of prisoners, the Probate Judge may, by a written appoint- ment filed with the County Recorder, designate the jail of a contiguous county for the confinement of the prisoners of his county, or of any of them, and may at any time modify or annul the appointment. Sec. 8532. A copy of the appointment, certified by the County Recorder, must be served on the Sheriff or keeper of the jail designated, who must receive into his jail all prisoners authorized to be confined therein, pursuant to the last section, and who is responsible for the safe keeping of the persons so committed, in the same manner and to the same extent as if he was Sheriff of the county for whose use his jail is designated, and with respect to the persons so committed he is deemed the Sheriff of the county from which they were removed. Sec. 8533. When a jail is erected in the county for the use of which the designation was made, or its jail is ren- dered fit and safe for the confinement of prisoners, the Pro- bate Judge of that county must, by a written revocation, filed with the County Recorder thereof, declare that the nec- essity for the designation has ceased, and that it is revoked. Sec. 8534. The County Recorder must immediately serve a copy of the revocation upon the Sheriff of the coun- ty, who must thereupon remove the prisoners to the jail of the county from which the removal was had. Sec. 8535. When a county jail or a building contiguous to it is on fire, and there is reason to apprehend that the prisoners may be injured or endangered, the Sheriff or Jailer must remove them to a safe and convenient place, and there confine them as long as it may be necessary to avoid the danger. Sec. 8536. When a pestilence or contagious disease breaks out in or near a jail, and the physician thereof cer- tifies that it is liable to endanger the health of the prisoners, the Probate Judge may, by a written appointment, designate a safe and convenient place in the county, or the jail in a contiguous county, as the place of their confinement. The appointment must be filed in the office of the County Re- corder and authorize the Sheriff to remove the prisoners to the place or jail designated, and there confine them until they can be safely returned to the jail from which they were taken. Sec. 8537. A Sheriff or Jailer upon whom a paper in a judicial proceeding, directed to a prisoner in his custody, is served, must forthwith deliver it to the prisoner, with a note thereon of the time of its service. For a neglect to do so he is liable to the prisoner for all damages occasioned thereby. 56 881 ( (> ov /6>c fac v When jail in contiguous county to cease to be used. Comp. laws, 547. Prisoners to be returned to proper county . Comp. laws, 548. /6 c j^ A*f Prisoners, removal of, in case of fire . / / ^ Comp. 54G. laws, 7 Prisoners, removal of, in case of pestilence. Comp. laws. 546. /6c/ Papers served on jailer for prisoner. Comp. laws, 548. f&vf Tit. II. OF COUNTY JAILS. §§8538-8546 t|c Hc/i IpIV Guard for jail. Comp. laws, 5 18 Sheriff to receive all persons duly committed . Comp. laws, 548. Prisoners on civil process, when not to be received. C. C. P., 794, Comp. laws, 549. Prisoners may be required to labor. Act Jan. 14, 1869. Rules, etc., for the performance of labor. N. S. Commissioners to have care of, etc . 8 ses., 804. Jailer to return list of prisoners, when failure, penalty. 8 ses., 805. Imprisonment for fine. 8 ses., 806. Governor may order removal of prisoners, when. 8 ses., 806. Sec. 8538. The Sheriff, when necessary, may, with the assent in writing of the Probate Judge, or in a city, of the Mayor thereof, employ a temporary guard for the protec- tion of the county jail, or for the safe keeping of prisoners, the expenses of which are a county charge. Sec. 8539. The Sheriff must receive all persons com- mitted to jail by competent authority, and provide them with necessary food, clothing, and bedding, for which he shall be allowed a reasonable compensation to be determined by the Board of Commissioners, and, except as provided in the next section, to be paid out of the County Treasury. Sec. 8540. Whenever a person is committed upon pro- cess in a civil action or proceeding, except when the people of this Territory are a party thereto, the Sheriff is not bound to receive such person, unless security is given on the part of the party at whose instance the process is issued, by a deposit of money, to meet the expenses for him of necessary food, clothing and bedding, or to detain such person any longer than these expenses are provided for. This section does not apply to cases where a party is committed as a punishment for disobedience to the mandates, process, writs, or orders of court. Sec. 8541. Persons confined in the county jail under a judgment of imprisonment rendered in a criminal action or proceeding, may be required by an order of the Board of Commissioners to perform labor on the public works or ways in the county. Sec. 8542. The Board of Commissioners making such order may prescribe and enforce the rules and regulations under which such labor is to be performed. Sec. 8543. The County Commissioners must inspect the county jail, and once every three months, inquire into the state thereof as respects the security thereof, treatment and condition of the prisoners, and take all necessary precaution against escape, sickness or infection. Sec. 8544. Every Jailer, five days prior to the opening of each term of the District Court, in his county, must re- turn to the Clerk of the Board of Commissioners of his county a certified list of all the prisoners there in his custo- dy, with the time and causes of their confinement, and the length of the term for which they were committed, and he must also return to said clerk, within five days after the close of said court, the name and cause, and term of com- mitment of every prisoner committed during said term of court; and any Jailer, who neglects to make such return, for every such neglect must pay a fine not exceeding fifty nor less than twenty dollars, to be imposed at the next suc- ceeding term of said court, on information of said commis- sioners of such neglect. Sec. 8545. Whenever any prisoner, under conviction for any criminal offense, is confined in any jail for non- payment of any fine, the District Court, upon satisfactory evidence of such inability, may, in lieu thereof, confine such person in the county jail at the rate of two dollars per day until the fine imposed is satisfied. Sec. 8546. Whenever, from any sufficient cause, the Sheriff considers it expedient that a prisoner be removed from the jail of his county, on application in writing to the 882 § 8547 OF COUNTY JAILS. Tit. II. Governor of the Territory, by the Sheriff and Commission- ers Qf such county, the Governor may order such prisoner to be removed to some other jail within the Territory, there to be detained in the same manner and by the same process as in the jail from whence they were removed, until re- manded back, by a similar process, or discharged according to law. Sec. 8547. All the expense of removing and maintain- Expense of ing prisoners, incurred under the preceding section, must howpSd. be defrayed by the county from which they were so re- 8ses.,806. moved. [Approved January 11, 1887.] 883 CEETIFICATE. Executive Department, Idaho Territory. Office of the Territorial Secretary. I, Edward J. Curtis, Secretary of the Territory of Idaho, do hereby certify that the foregoing printed volume of the Revised Statutes is a true and complete copy of the general laws passed at the Fourteenth Session of the Legislative Assembly of Idaho Territory, convened at Boise City, on the 13th day of December, 1886, and adjourned on the 10th day of February, A.D. 1887, as the same remain on file in my office. In Testimony Whereof, I have hereunto set my hand and affixed the great seal of the Territory. Done at the capitol in Boise City, this ninth day of April, in the year of our Lord one thousand eight hundred and eighty-seven, and of the Independence of the United States of America the one hundred and eleventh. Secretary of Idaho. GENERAL INDEX. 1 GENERAL INDEX. ABANDONMENT of child, penal 6783 minors frequenting saloons 6784 of homestead 3041, 3042 ABATEMENT. See Nuisance. of nuisances, claim for damages 3625 of public nuisance, by whom 3634 of public nuisance, how 3635 of private nuisance, when . 3641 of action, not by death 4108 of action, not by transfer 4108 of nuisance by action ... 4529 ABBREVIATIONS AND NUMBERS, use of 3924 ABDUCTION, jurisdiction of indictments for * 7486 of children 6800 of females for purposes of prostitution 6771 of women 6769 See Kidnapping. ABLE AND WILLING. See Performance. need not offer payment, when 3483 ABORTION, administering drugs to procure miscarriage 6794 evidence on trial for 7869 publishing notices of means to procure 6843 submitting to an attempt to procure miscarriage 6795 ABSENCE, effect on marriage 2426 of officers from territory, restrictions on 326 of county officers, restrictions on 1826 publication, service by 4146 waiver of jury is 4405 witness, of, deposition may be taken 6059 witness of, postponement of trial 4372 ABSENTEE, probate proceedings in appointment of attorney for 5669 ABSTRACT, costs for, when allowed 4606 in partition suits 4606 of incumbrances to be furnished to assessor 1481 commissioners to use same 1482 ACCEPTANCE of partial performance 6009 of bill of exchange. See Bill of Exchange. of proposal to contract. See Contract. ACCESSORIES before the fact, same as principal 7697 jurisdiction of indictment against 7492 may be indicted, how 7697 may be indicted, though principal is not 7698 pleading in indictment against 7697 punishment of 6344 to a misdemeanor 7233 who are 6343 ACCIDENT, new trial on ground of 4439 homicide bv, excusable 6568 ACCOMPLICE, evidence of 7871 887 8S8 GENERAL INDEX. ACCOUNT, executors' and administrators' 5390, 5580, 5603, 5615, 5616, 5690 particulars, further, of : 4209 pleadings, items of 4209 public administrator of 5690 reference of 4415 reference of, on judgment by default . . . .• 4360 ACCOUNTS, falsification of public \ 6975 of corporations, fraudulently keeping 7120 presenting false, to public officer for payment 6385 ACCRUED RIGHT, not affected by code 8 ACCUSATION against officers to be presented by grand jury 7445 against district attorney, to be presented by grand jury 7458 appeal, how taken 7457 before district court for removal of officer 7459 defendant may demur or answer to 7449 form of demurrer to 7450 form of accusation 7446 how transmitted and served 7447 if demurrer overruled defendant must answer 7452 in what court found 7602 judgment on conviction 7456 manner of denial of 7457 parties to, entitled to process for witnesses 7455 plea of guilty of 7453 prosecuting, if defendant does not appear 7448 trial of • -. . 7455 what prosecution must be by 7601 ACID, throwing corrosive upon person of another 6731 ACKNOWLEDGMENT inventory of separate property of wife . . 3500 marriage-settlement contracts . . . .• 2509 articles of incorporation 2581 instruments for record 2990 instruments evidencing judgment title for record 2991 letters patent recorded without 2992 location-notice recorded without acknowledgment 2993 who may take, in territory 3913, 2950 who may take, in other states 2952 who may take, out of United States 2953 deputy may take 2954 requisites 2955 by married women 2956 officer to indorse certificate 2957 certificate of, by corporation 2959 certificate of, by married women 2960 form of certificate 2958, 2961 certificate of, by attorney in fact •. 2961 seals and signatures 2962 certificate of officer on 2962, 2969 certificate of clerk, where taken by justice of the peace 2963 subscribing witness to be personally known 2965 witness to prove what 2966 handwriting proved, when 2967 evidence must prove what 2968 interpreter may be employed 2970 officer may furnish for contempt 2970 action to correct error in certifying 2971 action to obtain 2972' GENEEAL INDEX. 889 ACKNOWLEDGMENT— Continued. . instruments heretofore made > 2974 instruments affecting homesteads 3070 homestead declaration 3070 certificate of special partnership 3273 mortgages , 3377 personal mortgages 3386 judges who may take 3913 ACQUITTAL, court may advise 7877 defendant discharged or not on 7932, 8301 effect of, for higher offense 7762 former, in certain cases bar to indictment 7494, 7495 grounds of 7858 plea of former 7755 plea of former, form of 7756 person not subject to prosecution after 7356 proceedings after verdict of, on ground of insanity 7934 reasonable doubt 7858 verdict on plea of former 7919 what is not former 7760 what is former 77.61 ACTION. See Partition, Quieting Title, etc. abatement of 4108 alienation, not to prejudice 4546 arbitration revoking, submission to, action for 5269 arrest, against bail on 4252 attachment, on undertaking in 4317 attorney general's duty where territory a party 250 code did not effect pending 8 commencement of 4138-4149 commencement of (limitations) 4068 consolidation 4926 conspiracy, to maintain suit or 6540 death, by personal representatives for causing 4100 defending in certain cases, attorney forbidden 6525 dismissal of 4354 executors, etc., power to bring 5550-5553 form of, but one 4020 guardian, power to bring 5789 3ustices' courts in 4639 justices' courts, code provisions applicable to 4777 limitations of 4030 limitation of, real property 4035 limitation of, other than real property 4050 parent, by, for injury, etc., to child , 4099 parties 4090 parties, plaintiff and defendant 4021 pending, deemed, when 4927 pending, ground for demurrer to complaint ■ 4174 place of trial 4120 pleading in , . . 4160 postponement of trial 4372 provisional remedies, on undertaking in 4317 quiet title 4538 receiver, action by 4333 register 4930 seduction 4098 successive, on same contract 4925 890 GENERAL INDEX. ACTION— Continued. commenced by filing complaint 4138 title of 4168 trial of 4378 See Criminal Action. ACTION, CAUSES OF, joinder of 4169 ACTS. See Statutes. establishing revised statutes to take effect l 6300 made punishable by different provisions 7230 penalty when not prescribed 6535 ACTUAL BIAS, challenge for 7836 See Challenge. ADJOURNMENT, absence of judge 3869 contesting county elections in 5035 holiday, by reason of 3867 jury, absence of, during - 4393 jury, discharge by adjournment of term 4393 district court, of , 3832 court may adjourn while jury is deliberating 7907 ADOPTION OF CHILD 2545 by whom 2546 consent of wife, when necessary 2547 consent of child's parents necessary 2548 consent of child, when necessary 2549 proceedings 2550 judge's order 2551 effect 2552 effect on former relations of child 2553 of illegitimate child 2554 ADMINISTRATIVE OFFICER, governed by provisions of re- vised statutes, not mentioned 6390 See Officer. ADMINISTRATOR, guilty of embezzlement, when 7068 See Estates of Deceased Persons. ADMISSION, attorney to practice 3990 postponement, may be avoided by •. . 4372 service of summons, of 4148 ADULTERATION of food, drugs, liquors, etc 6918 ADULTERY, divorce granted for 2457 defined 2458 disposition of community property on divorce for 2481 ADVANCEMENT, effect s 5746 constitutes part of distributive share 5706 wherein excess or insufficient effect 5707 what deemed 5708 value, how determined 5709 effect when person advanced to dies before testator 5710 ADVANTAGE, partner must not obtain, over co-partner 3286 ADVERSE CLAIM, to personal property, action to determine. . . . 4928 real property to, action to determine 4538 ADVERSE PARTY in intervention 4111 on appeal 4802 to produce writing 5001 ADVERSE POSSESSION, judgment under 4040 landlord and tenant, effect of relation of , on 4044 occupation, actual, under claim of title 4042 written instrument, under 4040 written instrument, not under 4043 owner of property in, may transfer his right 2902 GENERAL INDEX. 891 ADVERTISEMENT of indecent publications 6840 of means to procure abortion 6843 See Publication. AFFIDAVIT, defective headings 4924 jury, misconduct of, juryman may make affidavit as to 4439 depositions to be used on hearings of motion G061 printer, etc., of, is evidence of publication 6053 taken and certified, by whom 3913 taken and certified in another state, by whom 6056 taken and certified in a foreign country, by whom 6057 used, may be, when 6052 assessor to subscribe certain, in assessment book 1453 of auditor, in duplicate of assessment book « 1503 by tax collector, of publication, etc 1535 by tax collector, as to delinquent taxes 1570 of articles on filing articles of incorporation 2583 of publication of notice of sale of delinquent stock 2631 of publication of notice of special partnership 3277 entitling 8234 for change of venue (See Venue) 7769 for examination on commission 8179 for postponement of examination 7568 AFFINITY, judge, of, to party, disqualifies judge 3900 juror, of, to party, disqualifies juror 4380 referee, of, to party, disqualifies referee 4417 AFFIRMATION, form of 6131 word "oath" includes 16 See Oath. AGE OF MAJORITY. See Minors. AGENCY. See Agent, Attorney in Fact. of partner in mines, authority 3308 notice of dishonor, how given under 3497 AGENT, person assessed as, how designated 4139 for absentees on distribution . .._. 5643 making false statement \ 7099 AGREEMENT. See Contract. AGRICULTURAL FAIR CORPORATION. See Corporations. ALIENATION, how long power of, may be suspended 2836 of immediate interest does not defeat future interest 2839 pending action, effect on action 4540 ALIENS may hold property 2827 resident may take by succession 5715 ground of challenge to grand juror 7609 ALIMONY. See Divorce; Husband and Wife. ALLEGATIONS, admitted, if not controverted by answer 4217 construction of 4207 denial of 4183 material 4218 redundant, etc. , striking out 4208 variance 4225 ALLEYS, highways 850 ALLOWANCE for decedent's family 5440 ALTERATION of interests disposed of by will, when revocation of will 5740 writing must be accounted for by party producing 6030 of public record by officer 6464 of public record by other than officer 6465 AMMUNITION, selling to Indians 6930 892 GENERAL INDEX. ALTERNATIVE, future interest may be in 2832 AMBIGUITY, demurrer, ground for, complaint 4174 demurrer, ground for, answer ' 4194 AMENDMENT, of statutes, how construed 157 answer, before, effect of 4228 complaint, of, filing and serving 4176 demurrer after, of course v 4228 demurrer before, effect of 4228 errors and defects to be disregarded 4231 fictitious name, where real name discovered 4230 filing 4176 justice's court, .pleadings in 4674 party, striking out name of 4229 power of, general 3862 process, generally of - 3862 serving 4228 supplemental pleadings 4218 variance 4225 AMICABLE ACTIONS, submission of controversy 5068-5070 AMUSEMENTS, PLACES OF. See Theaters. ANIMALS, prevention of cruelty to 7154 to be branded 1171 fraudulently branding 1178 hides of cattle to be preserved, how long 1196 sale of, at auction 1275 protection of sheep against dogs 1205 death from mischievous 6931 having glanders, sale or exposure of 6932 having glanders, to be killed 6933 killing, maiming, etc 7153 cruelly whip, beat, or ill treat 7155 poisoning 7155 putting dead, in streets, etc., 6914 ANNUITY, when due 5756 ANNULLMENT of marriage. See Divorce. ANSWER account, demanding items of 4209 account, items of, need not be set out 4209 allegation in, what are material 4218 appearance, answer is 4892 attorney of, to accusation 4009 complaint, amended, to 4176 conditions precedent, pleading 4212 construction of 4207 counter-claims 4184 counter-claim, when omission to set set up waives 4185 cross-complaint to 4188 cross-demands compensate each other 4186 default of, judgment for 4360 defective heading to 4924 defenses raised, waived by 4178 demurrer at same time with answer 4175 demurrer, effect on 4228 demurrer, matters the subject of, not appearing on face of complaint, may be taken by : 4177 demurrer to ■;.... 4193 denials, allegations not denied, admitted 4217 disclaimer 4539 GENERAL INDEX. 893 ANSWER— Continued. errors and defects in ... 4231 extension of time for filing 4229 filed, must be 4220 generally 4183 gold coin, etc 4453 husband and wife 4093 improvements, setting up value of 4541 information or belief, if defendant has no 4183 injunction after 4290 intervention to complaint on 4111 irrelevant, striking out 4208 joint debtors, answer in proceedings after judgment 4863 judgment, pleading 4211 justices' court, in 4670 libel, in action for 4216 limitations, statute of, pleading 4213 lost, how supplied 4923 mandate, to petition for writ of 4981 mortgage 4520 new matter deemed controverted 4217 partition of real estate, in 4566 . probate in contest on 5308 quiet title in action to 4539 redundant matter, striking out 4208 separately stated, defenses must be 4187 served, must be ' 4220 several defenses, may contain 4187 sham, may be stricken out 4208 signature to 4199 slander, in action for 4216 statute, private, pleading 4214 striking out ^208 supplemental 4219 time for filing 4140 time for filing, enlarging 4932 verification 4199 verified, complaint, failure to verify answer to 4199 waiver of objections not taken by 4178 waiver of summons by 4139 written instrument, where complaint sets forth 4200 written instrument, setting out in 4201 no articles of impeachment 7431 on arraignment 7724 See Plsct. ANTELOPE, destruction of, prohibited, when 7185 unlawful to kill for hides or horns 7186 APOTHECARY, omitting to or wrongfully labeling drugs 6916 registration and examination of 1282-1297 APPEALS from order distributing property on divorce 2482 affirmance on 381 8 aggrieved party may take 4802 appellant, who may be 4802 arbitration, appeal from decision on motion to set aside or mod- ify award 5268 attachment, effect on 4814 certificate of clerk, as to correctness of transcript, etc 4821 controversy without action, from judgment on 5070 894 GENEKAL INDEX. APPEALS— Continued. corporation, voluntary dissolution of 5191 costs on 4906 deposit in lieu of undertaking , 4778 dismissal of, effect of 4823 dismissal of, for not furnishing papers 4822 evidence, decision or verdict not supported by : 4807 exceptions in court below, necessity for 4426 generally 4800 judgment, affirmance on 3218 judgment, agreed case on, from 5070 judgment, interlocutory orders reviewable on appeal from .... 4824 judgment, modifying on 4825 judgment, reversal on 4825 judgment, review of, on ' 4800 marriage, suggestion of 4108 mode of taking 4808 modification of judgment, remedial powers of court on 4825 orders, interlocutory, reviewable on appeal from judgment. . . 4824 power of supreme court on 3818 record on appeal from judgment 4818 record on appeal, from judgment, on appeal 4819 record on appeal, from order granting or refusing new trial . . . 4820 record on appeal, from order other than order granting or re- fusing new trial 4819 remittitur 4826 reversal of judgment, remedial powers of court on 4825 stay of proceedings on 4810 district court, to, generally 4838 district court, how taken 4838 district court, on questions of law, statement 4839 district court on questions of law and fact, no statement 4840 district court, statement on ' 4839 district court, stay of proceedings 4843 district court, transmission of case 4841 district court, trial de novo 4844 district court, unnecessary delay in bringing case to trial 4844 district court, undertaking on 4842 district court, undertaking, deposit in lieu of 4778 supreme court's power on 3818 sureties on, subrogation on paying money judgment after ap- peal 4936 transcript, clerk's certificate 4821 undertaking on 4808 undertaking on, deposit in lieu of 4808 undertaking on, documents, delivery of judgment for 4811 undertaking on, execution of consequence, judgment directing 4812 undertaking on, executor appellant 4833 undertaking on, generally 4817 undertaking on, justification of sureties 4816 undertaking on, money judgment 4810 undertaking on, real property, sale or possession, judgment directing 4813 undertaking on, several documents may be in 4815 undertaking on, sureties on, paying money judgment after ap- peal 4936 undertaking on, trustee appellant 4814 appearance of defendant not necessary 8065 GENEEAL INDEX. 895 APPEALS— Continued. argument of 8063 bail on 8118 certificate of appellate court to be filed 8048 defendant, when to be discharged on reversal of judgment. . . 8074 duty of clerks 8051 duty of sheriff 8049 dismissal of, for irregularity 8056 dismissal of, for want of return 8057 effect of, by the people 8047 effect of, by defendant 8048 execution, when suspended 8050 how taken on judgment of removal from office 7457 how taken to supreme court 8045 judgment on 8070 judgment on, how entered and returned 8076 judgment to be executed on affirmance 8075 notice of, how served 8046 how taken to district court 8321 undertaking of witnesses to appear in appellate court 8322 papers transmitted to appellate court 8323 bail of defendant pending appeal 8324 trial de novo in district court, costs 8326 judgment and execution against bail 8327 number of counsel heard on argument * 8064 parties, how designated on 8041 power of appellate court on 8072 proceedings on, if dismissed 8327 qualifications of bail, etc 8119 what may be reviewed on 8071 • when jurisdiction of appellate court ceases 8077 when may be taken by defendant 8042 when may be taken by people 8043 when taken 8044 when taken to district court 8320 when to be heard and determined 8062 who may take 8040 when new trial to be had 8073 APPEARANCE, accusation against attorney 4008 answer is 4892 defendant, by 4892 demurrer is 4892 findings waived by non-appearance at trial . . 4408 generally 4802 husband and wife 4093 jury waived by non-appearance at trial 4405 notice, written, is 4892 summons, time for, to be inserted in 4140 trial at, failure to appear waives findings 4408 trial at, failure to appear waives jury 4405 waives service 4139 of corporations to answer charges 8228 of defendant on impeachment 7430 of defendant to answer accusation 7448 of defendant for arraignment 7711 of defendant on trial 7782 of defendant admitted to bail 7888 of defendant when jury renders verdict 7916 896 GENERAL INDEX. APPEARANCE— Continued. of defendant on appeal, not required 8065 of witness, expense of 8151 of witness, preventing 6503 APPELLATE COURT, judgment of 8070 judgment of, how entered and remitted 8076 presence of defendant not required in 8065 when governor may require opinion of justice of 8011 when jurisdiction of ceases 8077 See Appeal; Court. APPLICATION for change of venue. See Venue. APPLICATIONS, repeated, for same order, prohibited 3920 APPOINTMENT by public officer for reward 6387 buying, to office 6386 buying or selling, penalty 6386 designating jail of contiguous county for confinement of pris- oners 8531 receiving reward for 6387 APPORTIONMENT of council 118 of house of representatives 119 of school moneys, where new districts are made 651 of territorial and county school fund 624, 625 of rolling stock of railroads, for assessment purposes 1461 APPRAISEMENT, estates of deceased persons 5421 of ward's estate 5793 APPRAISERS, petition for appraisement of, to appraise homestead 3043 such to contain what 3044 appointment of, to assess value of homestead 3047 same, oath 3048 same, duties 3049 same, return 3050 same, fees 3056 appointment at chambers 3890 appointment by probate court 5421 appointment includes what 5422 duty of, generally 5422 duty of, as to homestead 5449 inventory to be signed by 5426 of after-discovered property 5428 report of, on homestead 5450 report of, how confirmed 5451 to be sworn 5422 who are, and by whom appointed 5421 APPROPRIATION, rights to water may be acquired by . . . , 3155 such to be for useful purpose 3156 priority of such establishes priority of right 3159 notice of such 3160 diligence in prosecuting such, 3161 APPROVAL of bill by governor 151 bill returned without 152 AQUEDUCTS, destroying or injuring 7162 ARBITRATION, adjournments 5263 appeal 5268 award 5265 award, modifying 5267 award, vacating 5266 district court, jurisdiction in 5262 GENERAL INDEX. 897 ARBITRATION— Continued, generally 5260 hearing 5263 notification, grounds for 5267 oath of arbitrators ,5264 oaths, arbitrators, power to administer 5263 powers of administrators 5263 real property, title cannot be submitted to 5260 revocation, grounds for 5266 setting aside 5266 subjects of 5260 submission, making order of court ¥ ... 5262 submission, revocation of, damages on 5269 submission, writing must be in 5261 three arbitrators must meet, but two may act . . . 5264 arbitrator, giving bribes to 6430 arbitrator, improper attempts to influence 6433 arbitrator, misconduct of 6434 arbitrator, receiving bribes by 6431 arbitrator, receiving communication outside of regular pro- ceeding 6434 ARBOR DAY, aholiday 1299 ARGUMENT, trial, order of 4383 of appeal 8062 on demurrer to indictment 7744 order of 7855 to jury, number of counsel 7857 ARMS, selling territorial 6986 selling to Indians 6930 ARRAIGNMENT, bench warrant, by whom and how issued 7714 bench warrant, how served 7717 bench warrant, when to issue 7713 bench warrant, form of 7715 defendant when to be present 7711 defendant, if in custody, must be produced 7712 directions in bench warrant, if offense bailable 7716 how made 7722 if for felony, defendant may be ordered into custody 7719 if for felony, defendant to be committed 7720 must be informed of his rights on 7721 of defendant after indictment filed 7710 of defendant for judgment 7989 proceedings on, when defendant not indicted by true name . . . 7723 proceedings on giving bail in another county 7718 time allowed and how defendant may answer 7724 ARREST of defaulting witness, by order of council or house 148 electors, when privileged from 492 by peace officers 7540 by private persons 7541 by telegraph 7553 by telegraph, certified copy served by 7554 by verbal order of magistrate 7542 counsel may visit person under 7529 defined 7538 doors and windows may be broken open 7548 duty of private person making. 7551 duty when made without warrant 7552 homicide committed in making 6569 57 898 GENERAL INDEX. ARREST— Continued. how made 7545 how made and what restraint allowed 7539 if made on warrant, it must be shown ; 7546 indictment to be filed 7552 inhumanity to person under G514 making without lawful authority G513 officer delaying to take prisoner before magistrate .\ . 6512 officer refusing to make 6510 of defendant after judgment 7988 of fugitive from justice 8418 persons making may summon aid 7543 procuring warrant of, maliciously 6533 refusal to aid officer in making 6517 warrant of, must issue when commission of offense feared . . . 7382 weapon may be taken from person arrested . . . ! 7550 when to be made 7544 what force may be used 7547 wrongful, who liable for. 7538 See Bail; Examination; Fugitives from Justice; Wat- rant of Arrest. ARREST AND BAIL IN CIVIL PROCEEDINGS, affidavits for arrest 4243 bail by defendant 4248 bail by defendant, charged if they do not surrender defendant within ten days after judgment 4251 bail by defendant, deposit in lieu of 4259 bail of defendant, exonerated by death of defendant 4253 bail by defendant, justification 4255 bail by defendant, new undertaking to be given if other bail taken 4255 bail by defendant, proceeding against 4252 bail by defendant, qualifications of 4256 bail by defendant, reducing 4265 bail by defendant, sufficiency of certificate of judge or clerk of 4258 bail by defendant, sufficiently discharges sheriff 4258 causes for arrest 4241 contempt for 5158 death of defendant exonerates bail 4253 deposit in lieu of bail 4259 deposit, bail may be substituted for 4261 deposit, judgment to be applied to satisfy 4262 deposit, reduction of 4259 deposit, sheriff to give defendant certificate of 4259 deposits, sheriff to pay into court 4260 escape 4263 escape, sheriff may discharge himself by giving bail 4263 execution 4471 forcible entry, in 5101 generally 4240 justice's court, in 4680 limitation of power to arrest 4240 order executed in any part of the Territory 4681 order for arrest 4242 order for arrest, execution of 4247 order for arrest, form of 4245 order for arrest, service of 4246 order for arrest, vacating 4265 GENERAL INDEX. 899 ARREST AND BAIL IN CIVIL PROCEEDINGS— Continued. order for arrest, when may be made 4245 sheriff, judgment against, as bail 4264 sheriff paying over money 4260 sheriff, return, etc 4254 surrender of defendant by bail 4250 undertaking on arrest 4244 vacating arrest 4205 ARREST OF JUDGMENT, court may cause, without motion. . . . 7961 defendant may move for, on what grounds 7960 defendant when to be held or discharged 7963 effect of 7962 motion in, defined, and when made 7960 motion in, in justice's court 8304 motion in, in justice's court, grounds for 8306 objection to jurisdiction, ground for motion 7750 ARSON, burning defined 7004 burning certain buildings, punishment for 7156 defined 7000 degrees of 7006 night time defined 7003 ownership of building 7005 punishment of 7008 See Burning. ART, injuring works of 7170 ARTICLES OF INCORPORATION, defined 2578 what to contain 2579 must be subscribed by whom 2584 certificate to issue after filing 2584 certified copy of, prima facie evidence of facts therein 2585 to be filed in county where corporation holds property 2587 secretary of territory to record 191 ARTICLES OF IMPEACHMENT. See Impeachment. ASSAULT, by public officer under color of authority 6516 by administering drugs : 6705 defined 6727 having deadly weapons with intent to 7023 in presence of court 7389 punishment of ... . : 6728 with caustic chemicals 6731 with deadly weapons : 6732 with intent to kill 6598 with intent to commit rape, robbery, etc 6703 with intent to commit other felonies 6704 assaulting and intimidating 6706 ASSAULT AND BATTERY, jurisdiction of justice's court 3854 ASSEMBLY. See Legislature. managers of impeachment elected by 7426 See Meetings; Unlawful Assembly. ASSESSMENT OF TAXES. See Revenue. by corporations. See Corporations. value of property taken for public use 5220 ASSESSMENT BOOK. See Revenue. ASSESSOR, duties of, in assessment of property 2040 is ex-officio tax collector 204' ) to make list of persons and property subject to taxation 1428 to exact statement from persons 11.". commissioners to furnish blanks to 1430 900 GENERAL INDEX. ASSESSOR— Continued. to fill out statement 1431 may examine witness in relation to statement '. . . 1432 duty of, where persons refuse to render statement 1433 to estimate value of property of unknown or absent owner. . . 1434 property of absent or unknown owner, how assessed 1435 duty of, on receipt of statement of property assessable in other county 1436 to prepare assessment book 1451 to make affidavit in assessment book 1453 to deliver assessment book to clerk of commissioners 1454 penalty for failing to complete assessment book, etc 1455 ' liable for certain taxes , 1457 action on bond of, for certain taxes 1458 judgment against, for certain taxes * 1459 to furnish statistics to controller 1462 to attend County board of equalization 1480 deputy to attend 1480 board of equalization may require, to enter certain property on assessment book 1483, -.1482 to collect certain taxes 1575 may collect such taxes by seizure or sale 1560 to make settlement with auditor .... 1520 compensation of, for collecting such taxes 2152-2156 to collect poll-taxes 2040 to furnish poll-tax receipts for 1601 auditor to countersign and deliver such 1601 may collect poll tax by seizure and sale 1605 to whom to deliver poll-tax receipt 1610 to make return to auditor, as to poll taxes collected \ . , 1612 to keep roll of persons subject to poll tax 1616 compensation for collecting poll taxes 2152-2156 may correct assessment book 1700 to make annual settlement with county auditor 1708 commissioners to allow compensation for making certain state- ments 1711 when to be elected 1814 bond of 1828 refusing to give list of property to 6979 ASSIGNMENT, by lessor, liability of assignee 2876 non-negotiable contract in writing may pass by 3600 liability of assignor 3601 of mortgage may be recorded 3358 of mortgage, effect of recording 3359 of debt secured by mortgage carries the security with it 3360 general, by maker of negotiable instrument to indorser, ex- cuses notice of dishonor 3504 of thing in action 2891 by debtor to defraud creditors 6519 in insolvency. See Insolvents. ASSOCIATIONS. See Corporations. ASYLUM. See Insane. ATTACHMENT not to be made public, when 454 administrator or executor, against 5412 affidavit for 4303 contempt for 5155 deposit on, to be applied in satisfaction of judgment 4315 discharge, affidavits upon motion for 4322 GENERAL INDEX. 901 ATTACHMENT— Continued. discharge, application to 4319-4323 discharge, certified copy of order of may be recorded 4324 discharge, judgment for defendant 4318 discharge, undertaking on 4319 dissolution of 4319 embezzlement by executor or administrator 5409 examination of debtor and third persons, and order thereon. . . 4310 execution of 4306 executor or administrator 5412 generally 4302 inventory by sheriff 4311 issue of, not to be before summons 4302 judgment for defendant, effect 4318 judgment, satisfying out of attached property and payment of balance to defendant 4315 justice's court, in 4686 lien of, merges in judgment lien 4457 property, debts, etc., sheriff may collect 4312 property, liable to 4306 may be attached and sold under execution toll-road, bridge, etc 1122 property, sale of 4312 property, satisfaction of judgment, to be applied in 4315 property, third person claiming 4314 property, third person's hands, in 4308 return, sheriff's 4311 sale 4312 several writs may be issued 3305 sheriff, return by 4311 undertaking on, justification, etc 4304 undertaking on, liability of sureties 4320 undertaking on, release of attachment, prosecuting 4305 undertaking on, release of attachment 4320 undertaking on, successful defendant entitled to 4318 will, person not producing 5300 witness, to compel attendance of 6043 writ of, and requirements thereof 4305 ATTEMPT to commit crimes, when punishable 7234 to commit crimes, how punishable 7235 to escape from territorial prison 6453 to escape from other than territorial prison 6454 ATTEMPTS to kill, by poison 6597 by assault with deadly weapon 6732 ATTENDANCE of witnesses may be compelled 6035, 8148 See Appearance; Evidence; Witnesses. ATTESTATION. See Oath. ATTORNEY AT LAW, admission of, to practice, where provided for 3990 certain officers prohibited from acting as 1827 absentee, probate court may appoint attorney to represent. . . 5669 accusation against, answer 4009 accusation against, appearance 4008 accusation against, citation 4007 accusation against, demurrer 4010 accusation against, judgment 4014 accusation against, reference 4013 accusation against, trial 4012 accusation against, verification 4006 admission of, county courts 3991 902 GENERAL INDEX. ATTORNEY AT LAW— Continued admission of, district courts 3991 admission of, supreme court 3991 authority of 3098 change of 3999 compensation of 4900 contempt of court by 5155 conviction, clerk to transmit copy of, to supreme court i 4003 death of 4001 declaration of intention to become citizen 3990 duties of 3997 examination for admission 3991 fees 4900 judge may not act as 3901 jury duty, exempt from 3943 justices' courts, in ... , \ 4653 license 3992 license, practicing without 3996 license, forfeiture of 6525 oath of 3993 plaintiff's, name of must be indorsed on summons 4140 pleadings, signature to 4199 power of 3998 privileged communications 5958 probate court, appointment by 5669 qualifications 3991 receiver, attorney for party must not be 4331 removal of 4002 roll 3995 roll, striking off 4002 satisfaction, power to enter .... 3998 service of papers, must be on 4893 state, from another, admission 3994 summons, plaintiff's attorney's names must be indorsed on . . . 4140 suspension of 4002 witness, privileged communications 5958 buying demands in suit ... 6524 defending certain prosecutions 6525 defending himself 6526 guilty of embezzlement 7068 misconduct by 6523 ATTORNEY GENERAL, mode of appointment and term of 171 general duties of 250 action, where territory a party, duty of 250 salary of 251 official bond of , 252 to reside in Boise City 325 vacancy in office of, how filled 435 duty of, when alien heir does not claim inheritance 5716 usurpation of offices, duties 4612 verify pleadings, need not 4199 governor may require opinion from 8011 liable to impeachment 7425 ATTORNEY IN FACT. how must execute certain instruments 2925 form of certificate of acknowledgment by . 2961 power of, how revoked 3003 GENEEAL INDEX. 903 ATTORNMENT, by tenant to landlord, unnecessary 2933 AUCTION, sale of delinquent stock by. .* . 2624 AUCTIONEER OF LIVE STOCK must keep register 1275 must enter description of animals sold 1276 register open for inspection 1277 register when deposited with recorder 1278 penalty for failure s 1279 auctioneer of live stock 1275 AUDITOR, to prepare and print licenses 1632 to number, sign, and deliver licenses to tax collector 1633 to keep stamps and license account 1634 fees of, for licenses in certain cases 1641 to enter what facts in assessment book 1500 prepare duplicate statement showing what 1501 transmit statements to controller 1502 deliver duplicate assessment book to collector, and make affi- davit thereto 1503 charge tax collector with certain amount of taxes 1504 verify all statements by affidavits 1505 tax collector to settle with, when 1520 deliver to auditor delinquent list 1525 to settle with tax collector, how 1527 transmit statement to controller 1 529 compare delinquent list 1567 administer oath to tax collector 1568 credit collector with amount of delinquencies 1569 enter uncanceled taxes on subsequent assessment books 1572 sign and deliver poll-tax receipts 1601 assessor, to settle with, for poll tax 1612 to return to treasurer unused poll-tax receipts 1614 treasurer to credit auditor with such 1615 to report to controller 2012 to make certain settlement with controller 1675 controller to make entries on report of 1680 to make proper entries in his account with treasurer 1682 office hours of 1822 to reside at county seat 1825 bond of : 1828 bond, where filed 2013 county treasurer to receive no moneys, except on certificate of 1841 receipt to be deposited with 1842 treasurer, when to settle with 1850 treasurer must permit to examine his books 1861 to draw warrants and settle accounts 2005 how to settle with debtors to the county 2007 must number warrants 2009 must examine books of treasurer 1861 to make joint statement to commissioners 2010 neglect of auditor 6985 AUTHORITY, words giving joint, how construed 14 assault by officer under color of 6516 officer arresting without lawful 6513 of executor. See Executors. « of factor. See Factors. of parent. See Parent. of trimtff SIpp '7V,7/9^ See Crimes. GENERAL INDEX. 919 COMPROMISE, generally 4870 justice's court, in 4731 receipt may be demanded 6111 of certain offenses may be made 8205 order thereon bar to another prosecution 8206 to be by permission of court 8206 COMPULSION. See Duress. COMPUTATION of time, generally 11 CONCEALMENT. See Fraud. of property by debtor 6519 of property by defendant .... .* 6520 of person charged with crime 6343 CONDEMNING land. See Eminent Domain. CONDITION tenant without notice not liable for breach of, of lease 2933 Precedent, grant on only an executory contract 2932 pleading 4212 Subsequent , right of re-entry for breach of, transferable 2901 property to be reconveyed on non-performance of 2931 CONDITIONS PRECEDENT, pleading 4212 CONDONATION. See Divorce. CONDUCT OF JURY after cause submitted 7900 CONDUCTOR of railroad train, intoxication of 6924 of railroad train, violation of duty by 6926 CONFESSION OF JUDGMENT generally 5060 CONSANGUINITY, judge disqualified by 3900 juror disqualified by 4380 referee disqualified by 4417 CONSENT of parties necessary to marriage 2420 alone does not constitute marriage 2420 who are capable of giving to marriage 2421 to marriage, how manifested and proved 2422 incapacity to, when ground for annulling marriage 2450 of husband, not required for transfer of wife's separate prop- erty ' 2495 of wife, necessary for married man to adopt child 2547 of child's parents necessary to adopt child 2548 of child, when necessary for its adoption 2549 minor must restore, on disaffirmance of contract 2407 written instruments prima facie imports • • • • 3222 on whom fails burden of proof to show want of sufficient .... 3223 presumption of, in negotiable instruments 3468 effect of want of, in negotiable instruments 3480 of contract. See Contract. CONSIGNEE making false statement 7099 CONSOLIDATION OF ACTIONS, eminent domain 5216 generally 4926 CONSPIRACY, criminal, defined, punishment for 6540 taking possession of mining property 6541 evidence on trial for 7865 CONSTABLES are township officers... 1813 prohibited from practicing law . .- 1827 to attend justices' courts 2090 governed by what law 2091 failure to return process 2093 neglect to levy 2094 failure to pay over money 2095 liability on bond 2096 conservators of the peace 2097 920 GENERAL INDEX. CONSTABLES— Continued. when may appoint deputies 2098 neglecting to pay over fines 0978 purchasing judgment 0435 refusing to arrest or receive accused parties 0510 suffering prisoner to escape :.,... 0455 warrant of arrest directed to 7523 See Peace otflcev CONSTRUCTION of words giving joint authority 14 of words and phrases 15 of codes. See Codes. of terms used in penal code 0301 of words used in indictment 7084 See Contract. CONSUL of United States may take acknowledgments 2953 CONTAGIOUS DISEASE, exposing persons afflicted with, in public place 0927 CONTEMPT, answer 5103 attachment for, execution of . . . 5100 bail on attachment for 5159 default in appearance after bail 5100 generally 5155 hab. fac. poss., retaking possession of land after execution of 5150 hearing 5103 illness of person charged 5107 judgment 5104 judgment, conclusiveness of 5108 juror, failure to attend 3907 justices' courts, in 4750 mandamus, disobedience to 4989 obedience, compelling, generally 3911 officers and others, controlling 3911 order, preserving, etc 3911 power to punish for 3912 presence of court, in 5157 presence of court, not in 5158 probate court, disobedience 5433 probate court, embezzlement 5434 punishment 5105 real estate, ouster after execution 5150 repeating application for refused order, is 3921 return of warrant .... 5102 service of proceedings for contempt 4894 witness, disobedience by 3802 CONTEMPTS, criminal courts of justice to punish for 0305 disobedience to subpoena 8153 grand juror acting after challenge allowed 7013 how punishable 7231 when criminal 0529 CONTESTING ELECTIONS, proceedings for 5020-5042 See Elections. CONTINGENT INTEREST defined 2831 contingent remainder on prior remainder in fee 2851 CONTINUANCE OF TRIAL, ETC. See Postponement. commission for return of 0005 costs may be imposed as terms on 4908 forcible entry, etc. , in 5105 justices' courts, in 4702 mandamus, in 4982 GENERAL INDEX. 921 CONTAINING GUARANTY. See Guaranty. CONTRACTS, certain officers prohibited from being interested in. 365 for supplies to insane asylum 754 construction and repair of bridges to be let out by 947 of minor, when and how disaffirmed 2407 minor or insane person cannot disaffirm for necessaries 2408 person entirely without understanding cannot make 2410 when person of unsound mind may make 2411 when person of unsound mind cannot make 2412 marriage a personal relation arising out of civil 2420 to marry, how parties may be released from 2427 marriage settlement, how executed 2509 marriage settlement, must be acknowledged and recorded 2510 effect of recording or non-recording marriage settlement 2511 minor may make marriage settlement 2512 CONTRACT executory, grant on condition precedent is 2932 of sale not revocation of will 5738 non -negotiable written; transferable 3600 liability of assignor 3601 for benefit of third person may be enforced by him 3221 penaly for certain officers being interested in 6384 orally 3224 by writing 3225 provisions abolishing seals 3227 original and written parts in, to prevail 3228 Parties, who may be 3220 for benefit of third person may be enforced by him 3221 arrest, when ground for 4241 attachment, when ground for 4302 conditions precedent, pleading 4212 Unlawful, decedent, purchase by 5532 decedent, sale, enforcing contract for 5565 gold coin, etc., judgment for 4453 joinder of actions on 4169 specific kind of money, etc 4453 CONTRACTORS, liens of 5125 CONTRIBUTION, joint debtor paying execution right to 4499 probate, payment of debts, for 5531 sureties, rights to 4928 CONTRIBUTORY NEGLIGENCE. See Negligence. CONTROLLER OF TERRITORY. mode of appointment and term of office 171 general duties 205 to number, etc., certificates of settlement ! 206 special duties connected with school fund. . .* 207 must draw warrants, in what order 208 duty of, against defaulters 209 salary 218 official bond 222 manner of ascertaining and paying accounts 211 to reside at Boise City 325 prohibited from dealing in certain scrip 368 auditor to transmit statement to 1502 may require district attorney to prosecute tax collector 1522 to advertise bids for blanks 210 contractor for blanks to file bond 210 claims against territory to be presented within two years 211 no claim allowed as a set-off unless so presented 211 may examine claimants and witnesses under oath 212 922 GENERAL INDEX- CONTROLLER OF TERRITORY— Continued. accounts and vouchers preserved, copies evidence .. . 213 when may or may not draw warrant 214 must refer claims to legislature at request of claimant 215 same— where no appropriation has been made to pay lawful claim 216 must report to legislature what 217 salary, how audited and paid 218 books and records open to inspection of committee of legisla- ture 219 seal — copies authenticated by evidence 220 county treasurers to settle with 1670 penalty for failure 1674 settlement of county auditors with 1675 auditor to transmit report to, by mail 1676 to withhold certain compensation 1677 to make entries on auditor's report 1680 to deduct fees and mileage, etc., on settlement 1678 may direct district attorney to prosecute delinquent 1684 may employ extra counsel in certain cases 1685 duty where property escheats to territory 5717 keeping false accounts 6975 CONTROVERSY WITHOUT ACTION, submitting, generally.. 5068 CONVEYANCES. See Conditions; Covenants; Transfer. to the territory, where recorded 191 by which right of way is acquired, to be recorded 934 tax-deeds, effect of 1553 when person of unsound mind may make 2411 when person of unsound mind cannot make 2412 of rents and reversions, rights of grantee 2875 a transfer in writing 2904 of real property, how made 2920 of premises occupied as homestead 2921 words of inheritance not necessary to pass a fee 2905 by married woman void, unless acknowledged, how 2922 fee — simple title presumed to pass 2'. '27 in fee simple carries with it subsequently acquired title 2928 how far conclusive against grantor 2929 how far conclusive on purchaser 2929 by owner for life or years -930 on condition subsequent 21)31 on condition precedent 2932 valid without attornment of tenant 2933 of title to highway 2934 what covenants included in 2935 denned 3002 acknowledgment, judges who may take 3913 mortgage, when not deemed 4523 sheriff's deed 4493 forgery of 6466 fraudulent 7095 fraudulent, by debtor 6519 form, by married woman 2922 when husband has been absent for a year 2923 by attorney in fact 2924 acknowledgment. See Acknowledgment. recording. See Recording. tax-deeds. See Revenue. interpretation of "heirs," "issue," etc 2906 GENEKAL INDEX. 923 CONVICTION of felony ground for divorce 2457 when divorce for, must be commenced 2451 of crime, attorney, effect on license 4014 autrefois, in certain case bar to indictment 7494 former, plea of 7755 how obtained 7358 no person, to be punished except on legal 7350 of public officers on accusation 7456 of higher offense, effect of 7762 of two or more crimes, terms of imprisonment commences, when 7237 of felony, grounds of challenge to juror 7832 on impeachment 7434 on uncorroborated testimony of accomplice 7871 of corporations 8229 person not subject to prosecution after 7356 plea of former, form of 7756 proceedings upon general verdict of 7932 proof of autrefois in mitigation 7993 statement of, to be transmitted to governor 8010 verdict on plea of former 7919 See Jeopardy. CONVICTS disqualified from voting 501 insane, reception, etc. , at asylum 765 civil rights of, suspended 7239 civil death of 7240 commutation of sentence may be earned by 8505 forfeitures by 7243 imprisonment, term of, when commences 7238 not incompetent to be witness 7241 not incapable of conveying property 7241 person of, protected 7242 transportation of, to territorial prison 8504 when insane 8015 when en ciente 8017 COPY certified, of articles of incorporation as evidence 2585 amendments, copies to be served 4176 record, copy requires seal 3874 writing, demanding copy of 4875 writing, evidence when original accounted for, etc 5999 writing, pleadings, effect of setting forth in 4200 CORONER, penalty for failure to pay over certain moneys, etc. . . 1854 disposition of effects, etc., received from 1855 fees and expenses of 1856 when to act as sheriff 1886 powers when so acting 2086 fees of, when acting for sheriff 2086 to hold inquests 2080 to bury body, when 2081 to deliver up personal effects of deceased person 2082 to file certain statement 2083 vacancy in office of 2084 duties of 8377 refusing to arrest person charged with crime 6510 to issue warrants when 8384 CORONER'S INQUEST, attendance of jury at 8378 proceedings on 8377 testimony in writing, where filed 8382 924 GENERAL INDEX. CORONER'S INQUEST— Continued. verdict of jury 8381 warrant, form of .' 8385 warrant, how served 8386 warrants of arest to issue 8384 witnesses, subpoenas for 8379 witnesses compelled to attend \ . . 8380 CORONER'S JURY. See Jury. CORPORATIONS IN GENERAL. governor may order inquiry into affairs of 180 certain, may acquire right of way over highways 863 responsible for road poll-tax assessed to employes 901 to make certain statement to assessor 1429 individual holder of stock of, when not to be assessed 1440 property of, where assessed ! 1442 what are public and private 2575 how formed, private 2576 for what purposes formed, private 2577 name of instrument creating, private 2578 articles of incorporation, what to contain 2579 certain, to state what additional facts in article 2580 corporators, qualifications and acknowledgment by 2581 oath and payment of subscription, when. 2583 articles of incorporation of, where filed, and certificate 2587 term of existence 2584 prerequisites to filing articles 2582 certified copy of certificate prima facie evidence of contents . . 2585 who members and stockholders * 2586 change of principal place of business 2608 to file certified copy of articles in county where it holds property 2587 misnomer not to invalidate instrument 2635 dealers with cannot question existence 2636 may require property under "eminent domain" 2638 may own and improve lot and house to carry on business in . . 2638 franchise may be sold under execution 2642 duties of purchaser of franchise 2643 sale of franchise not to affect powers or liabilities 2645 may redeem franchise 2646 where proceedings under execution may be had against 2647 how may extend corporate existence 2649 acknowledgment of instrument by 2994 requisites of such 2955 existing corpopations may continue under this title 2650 may continue under former laws 2651 certificate of acknowledgment 2959 other than profits, how formed 2760 bribing trustees of 6528 director presumed to know condition of 7123 director present at meeting, when presumed to assent 7124 director, when absent, when presumed to assent 7125 director of, defined 7127 examination of charge against 8225 frauds in subscription of stock ...... 7114 frauds in organizing or increasing capital 7115 frauds in keeping accounts 7120 form of summons against 8223 fine on conviction, how collected 8229 GENEEAL INDEX. 925 CORPORATIONS IN GENERAL— Continue d. foreign, doing business in this territory. . 7126 grand jury to investigate, when 8227 misconduct of directors 7117 officer of savings bank overdrawing account 7118 officer must permit inspection of books 7122 publishing false reports of condition ... 7121 proceedings against 8222 return of depositions taken 8226 summons on 8222 summons, when and how served 8224 unauthorized use of names in prospectus 7116 word "person" includes 6301 Assessment of stock, directors may levy 2614 limit of , 2615 order for levying 2617 notice of, and form • 2618 publication and service of notice 2619 delinquent notice, its form and contents 2620 publication of delinquent notice 2622 sale of stock to pay 2624 not to be invalidated 2629 action to recover stock sold for delinquent 2630 By-Laivs, adoption of, when, how, and by whom made 2588 may provide for annual election of directors 2589 may be made for certain purposes 2590 to be recorded 2591 how amended : 2591 to be adopted at first meeting 2593 Certificate of foreign insurance companies 2753, 2756, 2757 Debts, not to be created beyond actual subscribed stock 2596 when officer becomes liable for 2603 liability of stockholder for 2609 Directors, how many, and qualifications of 2592 vacancy in office, how filled 2592 election of, after incorporation 2593 election, how made, when, and by whom 2594 organization of board 2595 must make dividends, how 2596 liability of, in certain cases to creditors 2596 removal of 2597 may postpone election when 2601 may levy assessments » 2614 on dissolution, to be trustees for creditors 2648 DIVIDENDS, how made and how not made 2596 on shares of married women, how paid 2612 DISSOLUTION, by forfeiture for non use 2636 directors to be trustees for creditors upon 2648 voluntary 5185 voluntary, appeal from order 5191 voluntary, application for 5186-87 voluntary, judgment roll on 5191 voluntary, order for 5188 voluntary, order for, notice of 5188 "person" includes 16 receiver, when appointed 4329 service of summons on 4144 verification of pleading by 4199 926 GENERAL INDEX. DISSOLUTION— Continued. Election of directors -...'.. 2589 how conducted 2594 majority of stock to be represented 2599 who may vote 2599 may be postponed v. . 2601 complaints and quo warrantos, etc., regarding 2602 Foreign to designate person upon whom process to be served. 2653, 2753 penalty for failure 2653 insurance companies 2752-2759 Franchise levy upon and sale of 2642 rights and duties of purchaser of, at sale 2642 corporate powers after sale of 2645 redemption , 2646 place of sale of, under execution 2647 Meetings, when first called 2588 time, manner, place to be specified in by-laws 2590 by-laws only to be amended at special . . 2591 officers to be removed only at general 2597 justice of the peace may order 2598 majority must be present . 2599 who may vote 2599 by consent to be valid 2604 proceedings at to be binding 2605 where held 2606 special, how called in certain cases 2607 for extension and continuation of corporate existence 2649 Name to be stated in articles of incorporation 2579 error of in articles of incorporation not to invalidate 2635 Officers, oath of, on filing articles of incorporation 2583 by-laws, to regulate compensation and duties 2590 directors to elect president, treasurer and secretary 2595 proceedings for removal of 2597 liability of, making false certificate, etc 2603 ORGANIZATION, dissolution for want of 2636 within what time to be effected 2636 POWERS, defined and described 2633 banking expressly prohibited 2634 when forfeited for non-user 2636 to increase or diminish capital stock 2637 to acquire real property 2638 not affected by sale of franchise 2645 of corporations not formed for profit 2765 RECORDS, how kept, what to contain 2639 "stock and transfer' book 2640 Stock, amount to be subscribed before incorporating 2582 oath of officer to subscription 2583 majority of subscribed necessary to adoption of by-laws 2588 two-thirds of subscribed, necessary to amend by-laws 2591 majority of subscribed necessary to election 2594 dividends not to be made from capital 2596 debts not to be incurred beyond subscribed 2596 capital must not be increased or diminished, except 2637 on dissolution, may be divided 2596 two-thirds of subscribed necessary to removal of officers 2597 majority of subscribed, constitutes quorum 2599 certificates of, how issued 2610 transfer of shares of 2611 GENERAL INDEX. 927 RECORDS— Continued. transfer of shares of married women 2612 transfer of shares of non-residents 2613 hypothecated shares, how voted 2609 when acquires jurisdiction over certain 2623 sale of delinquent 2624 may buy its own, when 2626 disposition of, where corporation is purchaser 2627 action for recovery of, sold for delinquent assessments 2630 Stockholders defined 2586 entitled to how many votes . 2588 notice to be given to, of meetings 2597 who has hypothecated stock 2609 liability of, for debts of corporation 2609 taxation of railroad and telegraph corporations 1463 CORPORATIONS, KINDS OF, Agricultural Fair, may hold how much real estate 2775 not to contract debts in access of amount on hand except 2776 not for profit 2777 may receive aid from county 2778 may fix fee, etc., for membership 2777 Bridge and Ferry, to obtain license from board of commissioners 2694 in what contingencies corporate existence ceases 2695 this title applies to bridge, etc., owned by natural persons 2696 Building. See hand and Building. Canal. See Water and Caned. Foreign, to designate person upon whom process may be served 2652, 2753 insurance companies 2752-2759 'Gas, to obtain privilege from city or town 2787 to supply gas on written application 2788 damages for refusal 2788 when may refuse to supply 2789 agent of may inspect meters 2790 when persons neglect to pay, gas may be shut off 2791 Homestead, time of corporate existence 2720 by-laws to specify what 2721 by-laws to be furnished members on demand 2721 advertisement and sale of delinquent shares 2722 may borrow and loan funds, and for what time 2723 minors and married women may hold stock 2724 limitation of speculation in lands 2725 forfeiture for speculation beyond certain extent 2725 when corporate existence terminates 2726 payment of premiums 2727 annual report 2728 publication, where made 2729 Insurance in general, corporation may be formed 2577 subscription to capital stock 2740 purchase and conveyance of real estate 2741 policies, how issued and by whom signed 2742 dividends of what and when declared 2743 directors liable for loss in certain cases 2744 capital stock 2745 foreign insurance companies 2752-2759 Insurance, fire, certificate of paid up capital stock to be filed . . . 2746 property which may be insured 2747 funds may be invested, how 2748 92S GENEEAL INDEX. CORPORATIONS, KINDS OF— Continued. rate of risk , 2749 amounts to be reserved before making dividends 2750 foreign insurance companies 2752-2759 Insurance, mutual life, health and accident, capital stock may be invested, how 2748 dividends of, companies 2750 capital stock 2745," 2751 foreign insurance companies 2752-2759 Land and Building, how organized 2796 may borrow money 2797 power and object of 2798 may insure the lives of members and debtors 2799 may own what real estate 2800 liability of members 2803 by-laws may provide what 2801 annual report 2802 consolidation and transfer of business 2804 Railroad, articles of incorporation must state what 2580 prerequisites to filing articles 2583 directors to be elected when 2663 may borrow money and issue bonds 20(34 to provide sinking fund to pay bonds 2665 enumeration of powers 2666 map and profile to be filed 2(367 may change line of 2(3(38 forfeiture of franchise 2C69 crossings and intersections 2670 condemnation 2670 not to use public streets, etc., except 2671 when crossing highways, etc., how acquire right of way 2672 may consolidate * 2673 proceedings to consolidate 2673 check to be affixed to all baggage 2674 damage for refusing so to do 2674 duties of 2675 to pay damages for refusing transportation 2676 to furnish accommodations for passengers 2677 to post regulations , 2678 not responsible for injuries incurred by violating rules 2678 to pay damages 2679 not liable in certain cases 2679 liable for stock killed 2680 must keep book of stock killed 2681 book to be kept at principal station in each county 2681 must file notice of the staiion with recorder 2681 must enter description of all stock killed within fifteen days. . 2681 book subject to inspection 2681 penalty for failure 2681 disposition of body of animals killed or injured 2682 hide to be preserved for inspection 2682 penalty for failure to preserve the hide 2682 taxation of 1463 regulations of trains , 2683 penalty for violating such 2683 conductor may eject passengers, when 2684 Religious, Social, and Benevolent, how formed 2760 articles of incorporation, to state what 2761 GENERAL INDEX. 929 CORPORATIONS, KINDS OF— Continued. may hold what amount of property 2762 orphan asylums may hold how much property 2762 Masons, Odd-Fellows, Pioneers, etc., may hold how much. . . . 2763 may, by order of court, sell or mortgage property 2764 proceedings thereon 2764 may provide what in by-laws 2765 mutual benefit and relief associations 2766 Road, articles of incorporation must state what 2580 Social. See Religious, Social, etc. Telegraph or Telephone, articles of incorporation must state what 2580 right of way along water, roads and highways 2700 liability for injuring property of 2701 liability for malicious injury to property 2702 duty to send dispatch 2703 assessment and valuation of 1463 Water and Canal may obtain contract to supply city or town . . 2710 duties 2711 rate to be fixed by commissioners 2711 right of way 2712 to build and keep bridges in repair 2713 CORRECTION, pleadings 4176 verdict, informal 4395 CORRUPTION. See Bribery. CORRUPTION IN OFFICE. See Officer. CORRUPTLY defined 6301 COSTS, of action for divorce 2472 of appraisement of homestead 3057 of transportation of personal property to place of delivery. . . . 3251 appeal, cases brought up otherwise than by 4911 appeal of, discretionary when 4906 attorney's fees, left to agreement 4900 bill of 4912 contested election, cases in 5039 county, costs awarded against, how paid 4918 decedent's estate, action by creditor for more than executor, etc., or probate judge will allow 5473 defendant, entitled to, of course, when 4903 defendants, separate defenses 4905 disclaimer by defendant 4539 discretionary 4906 eminent domain, in 5227 eminent domain, in, fencing lands 5223 executor, etc. against 4910 generally 4900 guardian, on application for sale by 5806 judgment, costs to be inserted in 4914 judgment by default 4360 justice's court, in 4776 mandamus, on 4987 memorandum of, filing 4912 memorandum of, filing, after remittitur 4913 non-suit, on 4354 partition, abstract of title 4606 partition, former suit, of 4604 partition, lien for 4604 partition, referees of . ■ 4576 plaintiff entitled to, of course, when 4901 59 930 GENEEAL INDEX. COSTS— Continued. postponement, when condition of 4908 prevailing party, when entitled to 4901 probate matters, in : 5671 referees, of 4907 referees, partition 4576 referees, probate cases ! . 5477 remittitur, after 4913 security for, dismissal for not giving 4916 security for, generally 491 5 several actions on same cause of action 4902 territory, costs awarded against, how paid 4917 tender, after 4909 usurpation of office, proceedings on 4618 order for prosecutor to pay '. 8302 when prosecutor to pay 8302 judgment against defendant for 8441 CO-SURETIES. See Surety. CO-TENANTS. See Parties; Partition; Tenants in Common. COTERMINOUS OWNERS, rights of, to lateral and subjacent support 2884 mutual obligation of 2886 COUNSEL, court may appoint, if district attorney fail to attend. 7899 defendant to be allowed 7355 defendant on arraignment, rights of, as regards 7721 may visit prisoner 7529 member of, to argue to jury 7857 member of, to argue on appeal 8064 order of argument by 7855 opening of defense by 7855 right of defendant as regards 7565 when examination to proceed without 7567 See Argument; Attorney. COUNSELOR, misconduct of 6523 See Attorney. COUNSELORS AT LAW. See Attorney. generally 3990 COUNTER CLAIM, cross complaint 4188 deemed denied, allegations in are 4217 demurrer to 4193 dismissal on 4354 generally 4184 judges for excess 4452 omission to set up, fatal 4185 omission to set up, fatal in justices' courts 4671 separately stated, each must be 4187 several may be set up 4187 specially pleaded, must be 4187 verdict on 4398 COUNTERFEITING coin, bullion, etc 7035 making or possessing dies or plates for 7038 possessing or receiving counterfeit coin 7037 punishment of 7036 restoring canceled ticket of railroad company 7040 ticket, check, etc., of railroad company 7039 trade marks 6862 See Forgery. GENERAL INDEX. 931 COUNTIES, notaries for respective 285 commissioners of highways for 870 certain, exempted from code road laws 976 toll bridge uniting two 1078 may purchase toll-bridges 1098 property of railroads, how assessed 1463 classification of 2147-2149 bodies corporate 1730 powers of, how exercised 1731 name of 1732 powers of 1733 not to loan credit 1734 judgment against county, how paid 1735 salaries of officers of 2120-2159 number of commissioners for 1745 division into districts 1748 officers of 1812, 2150 township officers 1813 election and term of county officers 1814 assistants and deputies 1815 vacancies, how filled 1821 officers at county seat 1822 misconduct in office 1823 administering oaths 1 824 officers to reside at county seat 1825 absence of officers from territory 1826 what officers not to practice law 1827 official bonds classified , 1828 bond not fixed by law 1829 county charges 2161 COUNTY, marriage settlement to be recorded in what 2510 mortgage of personal property to be recorded in what 3387 mortgage property in transit deemed located in what 3388 complaint must specify where filed 4168 costs against 4918 officers exempt from jury duty 3943 service of summons on 4144 summons must state, where complaint filed 4138 place of trial of actions against 4122 verification by 4199 COUNTY ASSESSOR. See Assessor. COUNTY AUDITOR. See Auditor. COUNTY BOARD OF EQUALIZATION. See Equalization, COUNTY INDEBTEDNESS, finding of 3602-3607 COUNTY CLERK. See Clerk. to make statement of expense of trial of escapes from terri- torial prison 6458 COUNTY JAILS. See Jails. by whom kept and for what used 8525 grand jury to investigate condition of 7638 keeper of, to receive United States prisoners 8529 keeper of, answerable for United States prisoners 8530 of contiguous county, may be used when 8531 of contiguous county, use of, when to cease 8533 prisoners to be classified in 8527 prisoners committed must be confined in 8528 prisoners from another county to be returned 8534 prisoners may be removed in case of fire or pestilence 8535-8536 932 GENERAL INDEX. COUNTY JAILS— Continued. prisoners, guard for 8538 prisoners, when not to be received - 8540 prisoners in, required to labor 8541 rooms required in 8526 rules and regulations 8542 to be inspected by county commissioners .» . . 8543 jailer to return list of prisoners 8544 imprisonment for fine, when 8545 governor may direct removal of prisoners 8546 expense of and keeping during removal 8547 separation and classification of prisoners in 8526 sheriff to receive all persons duly committed 8539 See Jails; Sheriff; Jailer. COUNTY RECORDER/ See Recorder. COUNTY SCHOOL SUPERINTENDENT. See Schools. COUNTY SURVEYOR. See Surveyor. COUNTY TREASURER. See Treasurer of county. COURTESY, estate by, abolished 2506 COURSE OF PROCEEDINGS, practice, where none specifically pointed out 5005 COURTS. See Adjournment; Judges. Generally, seal of, defined 13 absence of judges 3868 breach of promise, sittings private 3861 challenges for cause, to try . . 4381 classification of 3810 construe documents, must 5951 contempt 4511 crim. con., sittings private 3861 deposited in 4339 admonition by, to jury not to converse 7881 assault in presence of 7389 authority of, on removal of action 7773 charge of, to grand jury 7619 charge of, to trial jury 7886 charge of, on trial for insanity 8196 criminal contempt of 6529 may advise jury to acquit 7877 may adjourn from time to time while jury is out 7907 may arrest judgment without motion 7961 may order reconsideration of verdict, when 7928 may appoint counsel in absence of district attorney 7889 may make order of dismissal of action, when 8212 may make summary inquiry for mitigation, etc 7993 must decide questions of law 7883 must give judgment on special verdict, how 7923 power of, to restrict argument 7857 proceedings in case court has no jurisdiction 7872 to try challenges 7838 District, adjournment of 3832 duration of term 3831 chambers, powers at 3890 to be held in each county 6146 counties, number of 6146 judge holding court in another county 3886 judge may hold in another county 3886 jurisdiction, appellate 3830 GENERAL INDEX. 933 COURTS— Continued. District — Continued. jurisdiction, original 3830 rules of, when take effect 38G4 divorce, sittings private 3861 enumeration of 3810 held, changing place where 3870 held, days on which may or may not be 3865 holiday, court appointed for, stands adjourned 3867 judge, absent, adjourned 3868 judge, substitute 3886 jury, to charge 4383 to whom to award custody of child of annulled marriage 2453 judgments and orders entered in vacation 3833 may award custody of child 2473 may allow wife alimony, when 2474 may require security for alimony 2475 shall resort to what property in providing for wife 2476 when may withhold allowance 2477 to determine legitimacy of child, when 2479 to make order for division of property on divorce 2480 may direct allowance for support of child 2530 complaints of corporation elections 2602 action in, to recover possession of property 2861 district courts established in each county 6146 expenses of 6147 two terms in each county 6148 one term, when 6149 how paid 6150 Justices'. jurisdiction, civil 3851 jurisdiction, criminal 3854 process runs throughout county 3853 law, questions of to be decided by 4368 of record 3811 order, preserving 3862 powers of supreme court on appeal 3818 powers of judicial officers 3910 Probate in each county 3840 jurisdiction of 3841 presumption as to jurisdiction 3842 terms 3843 terms, where held, clerk 3844 proceedings in civil actions 4629 appeals 5665 attorney for minors, absentees, devisees, legatees, creditors, etc. , appointing 5669 chambers, power at 5303 citation '. 5658 contempt by executor, etc., or guardian 5672 decrees of 5655 homestead, recording decree 5670 issues 5667 new trials 5665 orders of 5655 practice, rules of 5664 recorded decrees of, are notice 5657 trials 5668 934 GENERAL INDEX. COURTS— Continued. Probate — Continued. publicity of proceedings 3860 record of 3811 rooms for 3872 rules: 3864 seals : 3873 seduction, sittings private 3861 sittings not public in divorce, crim. con., seduction, and breach of promise 3861 . superseded courts 3832 Supreme. clerks of. See Clerk of Supreme Court. justices of. See Judges. library of. See Library. certiorari, and other writs 3816 concurrence in issuing writ 3820 concurrence in decision 3819 habeas corpus 3816 jurisdiction 3815 jurisdiction, appellate 3817 jurisdiction, criminal 3817 jurisdiction, original 3816 jurisdiction, where no mode of exercising jurisdiction pro- vided 3925 mandamus and other writs 3816 modifying judgment 3818 opinions must be in writing 3818 remittitur 4826 reversal by 3818 rules, when take effect 3864 seal 3873 terms 3821 writs out of 3816 COVENANTS, none implied in any grant, except 2935 COIN, altering brand of 6867 f eloniouslv taking is grand larceny 7048 CREDITOR. " See Assignment; Debtor. appraisement of homestead on petition of judgment 3043 when to pay expenses of appraisement of homestead 3057 objections to offer of performance 3231 special partner may be 3281 special partner postponed to other 3281 preference to, in insolvency, void .' 3286 special, when liable as general partner to 3289 lien void against, when 3339 mortgage of personal property, when void against 3386 certain transfers of debtor void, against 3020 transfer without value, not necessarily void against 3022 attempting to defraud 6519 CREDITS for good behavior of prisoners allowed 8505 how forfeited ; 8506 See Commutation. CRIM. CON., private sittings in 3861 CRIMES, repeal of act creating, when no bar to indictment 159 imprisonment for fine 7232 effect of revised statutes upon past offenses 19 against elective franchise 6354 GENEEAL INDEX. 935 CRIMES— Continued. against public justice 0430 against the person 0560 against public decency 0765 against public health and safety 0908 against the revenue and property of the territory 6975 officer performing duties of two officers, or neglecting duties under revenue law 0392 against property 7000 attempts to commit 7234 conviction of, may be had, how 7358 compounding 6518 conspiracy to commit 6540 certain, may be compromised 8205 defined 0309 how divided 0310 how prosecuted 7351 how punished when no penalty not otherwise prescribed 6535 jurisdiction of, committed in the territory 6535 jurisdiction of, commenced out of and completed in the terri- tory 7481 jurisdiction of, committed partly in two counties 7483 jurisdiction of, committed on boundary line 7484 jurisdiction of, committed on vessel 7485 jury to find degree of 7925 lawful resistance to commission of 7368 lawful resistance by party injured 7369 lawful resistance by other persons 7370 member of legislature convicted of, forfeits office 0415 no person subject to second prosecution on charge of same . . . 7356 no person punishable except on conviction of 7350 officer refusing to arrest for 6510 prevention of 7375 parties to classification of 6341 public officer convicted of, forfeits office 6436 disqualified person holding office 6391 restraint allowed of person charged with 7357 threatening to accuse person of 7081 unity of act and intent in commission of 6314 who capable of committing 6330 See Felony; Misdemeanor. CRIMINAL ACTION defined 7352 holidays, court may exercise powers of magistrate on 3866 application for, when granted : 7770 application for removal of proceedings 7772 authority of court to which removed 7773 clerk to prepare calendar 7788 defined 7352 defendant as witness in 8143 dismissal of 8212 formation of jury 7787 forms of pleading in 7675 how prosecuted 7353 indictment, when found 7504 limitation of, for murder 7500 limitation of, for other felony 7501 limitation of, for misdemeanor 7502 limitation of, when defendant is out of territory 7503 936 GENERAL INDEX. CRIMINAL ACTION— Continued. no person to be witness against himself 7357 no limitation of, for murder 7500 order of removal ; ; ; 1 party prosecuted, how designated 7354 proceedings, where offense triable in another county 7531 property stolen without and brought within this territory . . .\ 7490 removal of, before trial 7768 rights of defendant 7355 rules of evidence • 7864 . who may appeal 8040 when defendant to pay costs 8441 See Accusation; Evidence; Examination; Indictment; Prosecu- tion; Trial; Venae. CRIMINAL CONTEMPTS. See Contempts. CRIMINAL INTENT. See Intent. CRIMINAL NEGLIGENCE. See Negligence-. CRIMINAL PLEADINGS. See Pleadings. CROPS, growing, subject of mortgage 3385 injury to standing 7159 CROSS COMPLAINT, generally 4188 CROSS DEMANDS compensate one another 4186 failure to set up, fatal 4178 generally 4186 CROSS-EXAMINATION. See Evidence 6079 CROSSING, railroad engineer omitting to give warning at 6923 CRUELTY, extreme, ground for divorce 2457 defined 2459 disposition of common property in divorces granted for 2481 to prisoner by officer 6514 CRUELTY TO ANIMALS, prevention of 7154 whip, beat or ill treat 7155 CURRENCY, recovering specific 4453 CUSTODIAN of public writing to give copies 5966 will of, must produce it 5296 See Sheriffs. CUSTODY, indictment against defendant not in 7670 CUSTODY OF CHILD. See Parent and Child: Escape; Officer. CUSTOM, mining, effect of 4547 DAMAGES. award for condemnation of land for road 929 award, when rejected, proceedings 930 award, in such cases, how determined 931 appropriation for highways taken for toll-road 1028 sheriff liable in certain 1874 railroad corporations liable for certain 2679 for refusal to satisfy mortgage 3364 on dishonor of foreign bill 3561 appeal for delay 4825 complaint, must be stated in 4168 default, judgment by 4300 double, estate of decedent, embezzlement 5433 double, estate of decedent, executor, etc., fraud 5539 estate of decedent, embezzlement 5433 estate of decedent, executor, etc., fraud 5539 estate of decedent, executor, etc., misconduct 5538 excessive, new trial for 4439 execution, purchaser under, may sue tenant for 4545 GENERAL INDEX. 937 DAMAGES— Continued. forcible detainer, forcible entry, etc 5106 improvements, setting off value of 4541 injury to property, after sale on execution 4545 joinder of claims for 4169 mandate, on writ of 4987 nuisance 4529 treble, for trespass 4531 treble, for forcible entry 4533 treble, for waste 4530 unlawful detainer 4533 unlawful entry 4533 usurpation of office 4616 DAMS, injuring or destroying 7162 DAYS, what, holidays 10 business 12 computing time 11 of grace, not allowed 3526 of judicial, what are 3865 DEAD ANIMALS, putting in streets, rivers, etc 6914 DEADLY WEAPON exhibiting in rude manner 6961 having possession of, with intent to assault 7023 may be taken from person arrested 7550 See Assault. DEATH of notary public, effect of 291 of minor, personal representatives may disaffirm contract .... 2407 dissolves marriage 2455 of husband and wife, effect on homestead 3073 of devisee or legatee, before testator, effect of 5747 of heir advanced to, before devisor 5710 distribution of common property on, of wife 5712 distribution of common property on, of husband 5713 notice of dishonor, in ignorance of, of indorser 3496 abatement 4108 attorney of, proceedings on 4001 child, parents may maintain action for 4099 claims on estate of deceased 5463 execution after 4475 limitation, effect on 4071 negligence causing, parents or representatives may sue for. . . 4100 partition not affected by 4574 possession, right of, not affected by 4045 set-off, not affected by 4186 verdict, death after 44 55 civil, of convict 7240 duty of judge on passing sentence 8012 duty of governor, on receiving copy of judgment of 8011 from collision 6909 from explosion 6908 from mischievous animal 6931 judgment of, suspended, when 8048 must result within what time, to be murder 6567 occurring in county other than where cause of, inflicted 7491 of party injured in murder or manslaughter 6567 punishment of, how inflicted 8020 punishment of, when to take place, and who present 8021 sentence of, when suspended 8012 sentence in force, but not executed 8019 D38 GENERAL INDEX. DEATH— Continued. warrant of execution on judgment of 8009 when convict insane ' . . . 8013 when convict enciente 8017 DEATH PENALTY, how executed 8020 DEATH SENTENCE, execution of, how suspended 8012 DEATH WARRANT, on judgment of death • 8009 return upon, after execution 8022 DEBT, evidence of, subject of embezzlement 7072 See Debts. DEBTOR. See Assignment; Creditor. may pay creditor's poll tax 1608 may require receipt 3230 fraudulent misrepresentation of, as to pledge 3417 fraudulently concealing property 6519 judgment, proceedings supplementary to execution 4504 DEBTS, evidence of, personal property 16 counties not to contract 1734 board of commissioners not to contract certain 1771 husband not liable for ante-nuptial of wife 2503 separate property of wife not liable for, of husband 2504 separate property of wife liable for her own 2504 corporations not to create, beyond actual subscribed stock 2596 when officer of corporation liable for 2603 liability of stockholder for, of corporation 2609 included in word "incumbrances" 2936 homestead liable for certain 3039 property of intestate, how disposed of in payment of 5751 property of testator, how disposed of in payment of . 5752 legacies, how charged with 5754 liability of contribution of special partner for , 3288 special partner not personally liable, when 3288 pledgee cannot sell certain pledged evidences of 3424 attachment of 4307 estate of decedent, payment of 5606 execution, levy on, under 4477 payment to sheriff on attachment or execution 4506 DECISION, appeal, review of, on 4824 exceptions to 4426 new trial, motion for 4439 supreme court, modifying 3818 supreme court, paramount 3818 of referee, etc. , attempt to influence 6433 written, to be 4406 promise of referee to give certain 6433 DECLARATION, "oath" includes 16 DECLARATION OF INTENTION, attorney, alien 3990 sole trader 5851 DECLARATIONS. See Admissions; Evidence. of abandonment of homestead 3041 of abandonment of homestead, from what time effectual 3042 of homestead, how acknowledged 3070 of homestead, what to contain 3071 of homestead, to be recorded 3072 of homestead, effect of filing for record 3073 such to be recorded 3087 DEED. See Conveyances. forgery of 7028 GENEEAL INDEX. 939 DEER, destruction prohibited, when 7185 unlawful to chase with dogs 7186 unlawful to ship out of territory 7186 unlawful to kill for hides or horns 7186 DEFAULT, amended complaint, answering 4176 judgment by 4360 judgment by, relief cannot exceed that demanded by complaint 4353 judgment by, setting aside 4229 divorce not to be granted by 2471 DEFECTS in official bonds not vitiating 405 in certificate of acknowledgment, action to remedy 2971 disregarded, to be , 4231 parties of, demurrer for 4174 in indictments 7687 in pleadings and other proceedings 8236 in writ of habeas corpus 8362 DEFENDANT, definition of 4021 joinder of several . < 4103 landlord, making 4107 parties, who to be defendants 4021 DEFENDANT IN CRIMINAL ACTIONS, arrest of 7988 arrested, must be taken before what magistrate 7525 arraignment of 7710 arraignment of, judgment 7989 arraignment of, if in custody 7712 by whom arrested, when on bail 8124 commitment of, how made and to whom delivered 7582 commitment for examination, form of 7570 discharging one of several to be witness 7861 depositions must be read to 7571 entitled to two days to prepare for trial 7790 examination of, when to proceed 7567 grand jury not bound to hear evidence for 7635 how brought before court for judgment 7983 in what cases may appeal 8042 may be witness 8143 may produce witnesses ........ 7573 may show all facts tending to defense 7759 may show cause why judgment not pronounced 7990 must be taken before magistrate when arrested 7529 must be informed of charge and his rights 7565 must be allowed time to procure counsel 7566 must be arraigned, where 7710 must be allowed time to answer 7724 must be informed of his right to challenge 7826 must be discharged if action dismissed 8214 must be personally present at trial 8288 must be present when adjudged guilty of felony 7982 money, etc., taken from, disposal of 8243 name of, in indictment 7680 not indicted by true name 7723 on bail, appearing for trial, may be committed 7888 party prosecuted, known as 7354 pleading on the part of 7740 plea of, to be stated 7855 presence of, at arraignment 7711 presence of, on trial 7782 presence of, on rendering verdict 7916 940 GENERAL INDEX. DEFENDANT IN CRIMINAL ACTIONS— Continued. presence of, at judgment , : . . . 7982 presence of, not necessary on appeal 8065 presumption of innocence of 7858 proceedings after acquittal on ground of insanity 7934 property, etc., taken from , 8243 reasonable doubt as to guilt of 7858 reasonable doubt as to degree of guilt 7859 right of, to conditional examination of witnesses 81 60 refusing to plead 7763 right of, to examination of witnesses on commission 8176 rights of 7355 separate trial of, when jointly charged 7860 surrender of, by bail i 8123 to be discharged in certain cases 7876 to be remanded after verdict against 7933 unnecessary restraint of, before conviction 7357 verdict as to some, and another trial as to others 7927 warrant of arrest for, when issued 7518 when discharged for want of prosecution 8213 when to be committed for examination 7569 when and how discharged 7578 when to be committed 7579 when indictment is found and he not in custody 7670 when there are several, must unite in challenging 7816 when to be discharged or not, on verdict of acquittal 7932 when to be held or discharged 7963 when to be discharged on reversal of judgment 8074 when not competent witness 8143 when may be searched in presence of magistrate 8409 witnesses must be examined in presence of 7572 See Arraignment; Examination; Indictment; Judgment; Plea; Prisoner; Prosecution; Sentence; Trial; Verdict. DEFENDANT ON IMPEACHMENT, in impeachment trial, ser- vice on 7428 service, how made 7429 if demurrer overruled, must answer 7432 may answer or demur 7431 proceedings against, on failure to appear 7430 See Impeachment DEFENDANT ON TRIAL FOR REMOVAL FROM OFFICE, ac- cusation against, form of objections to 7450 answer of, to accusation 7448 failing to appear, proceedings against 7448 if objections overruled, must answer 7452 manner of denial 7451 may demur to, or deny accusation 7449 proceedings if pleads guilty, refuses to answer, or denies 7453 service on 7447 See Removal from office. DEFENSE, incompetency of witness not, for perjury 6482 irregularity in administering oath, not for perjury 6481 DEFENSES, assignment not to prejudice 4091 generally 4183 libel v... 4216 order of, on trial * . . • 4383 several, must be separately stated 4187 GENERAL INDEX. 941 DEFINITIONS of terms generally. : - 16 accessory 6343 acceptance of bill 3532 allonge 3470 arrest 7538 arson 7000 articles of incorporation 2578 assault : 6727 ballots 545 battery 6729 bigamy 6805 bill of exchange 3520 inland 3551 foreign 3551 bribes 6301 building 7001 building inhabited 7002 burglary 7014 burning 7004 bushel 1250 business days '. 10 challenge 7815 challenge to panel 7818 check 3590 collusion 2465 complaint 7509 community property 2497 conspiracy 6540 conveyance 3002 corporation public 2575 private 2575 articles of incorporation 2578 crime and offense 6309 criminal action 7352 cruelty, extreme 2459 desertion 2460 director 7127 dishonor 3491 drawee 3520 drawer , 3520 duel 6711 elisor 1887 embezzlement 7065 excusable homicide 6568 extortion 7080 false imprisonment 6721 false weight and measure 7105, 7106 felony and misdemeanor 6311 flax-seed 1250 "full cash value" 1405 grant or conveyance 2904 head of the family 3059 habitual intemperance , 2462 holidays 10 homestead 3035 improvements 1405 incumbrances 2936 indictment 7632 942 GENERAL INDEX. DEFINITIONS— Continued. indorsee in due course , , 3481 intemperance, habitual • 2462 interests, vested ...... 2830 issue 2906 contingent 2831 justifiable homicide ». . 6569 kidnapping 6584 larceny 7045 libel 6737 lien 3325 general 3327 special 3328 lumber ... 830 magistrate : j 7510 malice 6301 malicious mischief 7150 manslaughter 6565 marriage " 2420 maturity, apparent 3485 mayhem . . , 6577 minor 2405 misdemeanor 6311 month 16 mortgage 3350 motion in arrest of judgment 7960 murder 6560 neglect, willful 2461 new trial 7950 night time 7003 notice 1870 nuisance 3620 public 3621 private ■ . 3622 oath 6479 officer, peace 7522 panel 7817 partnership, special 3271 perjury 6478 person 16 pledge-holder . 3415 presentment 7631 process 1870 promissory note 3575 property 16 real 16 personal 16 public moneys 6977 rape 6765 recrimination 2466 riot 6950 robbery 6590 seal 13 search-warrant 8390 signature .' 16 state 16 stock drover and grower 1170 subpoena 8148 oi GENEKAL INDEX. 943 DEFINITIONS— Continued. swear , 16 testify .' 16 timber 830 United States 16 unlawful assembly 6953 vagrant 7208 willfully 6301 will, olographic 5728 wills 6301 writing 16 writ 16 year 16 DEFORMITY. extortion by threatening to expose 7081 DEGREES OF CRIME, court to determine on plea of guilty 7981 jury to find 7925 of arson 7006 of burglary 7015 of larceny 7047 of murder 6562 reasonable doubt as to 7859 DELAY in presentment of notice of dishonor, how excused 3505 in presentment of bill of exchange, effect 3531 in presentment of bill of exchange, how excused 3549 in presentment of promissory note, effect 3578 in presentment of check, effect 3591 in protest, how excused . . 3557 by arresting officer to take prisoner before magistrate 6512 DELINQUENT assessment, sale of stock .for 2624 assessment, action to recover stock sold for 2630 DELIVERANCE. See Escape; Rescue. DELIVERY, deposition or certificate not complete until 6484 of goods sold, where 3250 of goods sold, expense of 3251 essential in pledge 3411 DELIVERY, CLAIM AND, generally 4271 DEMAND of performance on pledger must be before sale or pledge 3419 of performance, how waived 3422 of payment of negotiable instrument, when necessary 3483 detainer, in 5093 buying, by attorney in action 6524 DEMENTIA. See Insanity. DEMURRER. amended pleadings to 4176 amended pleadings to justices' courts 4675 amendments, after or before 4228 answer to > 4193 answer at same time does not waive 4228 answer, when demurrer to complaint overruled 4228 answering at same time 4175 answering after demurrer overruled 4228 appearance is equivalent to 4892 complaint to 4174 complaint to, must specify causes 4175 complaint to part of 4175 exception deemed taken to decision on, when 4427 grounds must be specified 4175 • 944 GENEEAL INDEX. DEMURRER— Continued. judgment on 4409 justice's court* in • 4669 law, raises issue of 4366 time, enlargement of 4229 waived, objections not taken by . 4178 waives summons ». . 4139 grounds of 7742 how put in and form of 7743 heard, when 7744 if disallowed 7749 judgment on 7745 pleading on part of defendant 7740 resubmission of case to grand jury, after sustaining 7747 to articles of impeachment i 7431 to impeachment, overruled, must answer 7432 to accusation against officers 7749 to indictment, when put in 7741 to indictment, form and grounds of generally 7742 to indictment, for reason that it does not conform to statute . . 7742 to indictment, ground of, insufficiency of statement of facts. . 7742 when allowed, bar to another prosecution 7746 when objections must be taken by 7750 DENIAL, failure to make, effect 4217 of accusation 7449 accusation, form of 7450 accusation, manner of making 7451 of challenge, after exception overruled 7821 of challenge, to panel, how made 7823 of challenge to juror 7838 DEPOSE, includes every mode of written statement under oath. . 16 defined 16 DEPOSIT. See Pledge. county treasurer may make special in banks 1857 admitted funds to be brought into court 4339 appeal on 4809 arrest on 4248 arrest on, judgment to be satisfied out of 4262 arrest on, substituting bail for 4261 attachment on, judgment to be satisfied out of 4315 clerk to pay to county treasurer 4340 enforcing 4341 foreclosure sale, surplus on 4521 justice's court, costs 4775 justices' courts, in, instead of undertaking 4778 money on, statute of limitations does not apply to 4059 sheriff to pay into court 4251 instead of bail, where and how made 8120 instead of bail, to be refunded after verdict 7933 instead of bail, to be applied how 8122 on surrender, to be refunded 8125 when forfeited, how disposed of 8127 officer receiving, in insolvent bank 7119 DEPOSITARY seller of personal property, when 3252 DEPOSITIONS in contested election cases 136 to be transmitted 141 commissioner's duties 6064 "depose" definition of 16 GENERAL INDEX. 945 DEPOSITIONS— Continued; postponement of trial for 4372 postponement of trial for taking deposition of witness in at- tendance 4373 territory, taking within 6060 territory, taking without 6059 depositions to be used on hearing of motion 6061 what it is 16 taking without commission to issue 6062 taking without interrogatories 6064 for search warrant, to contain what 8394 on preliminary examination, how taken 7576 of informer of threatened offense 7381 of complainant 7516 of witnesses on conditional examination 8168 of witnesses who are prisoners in other counties 8171 to contain what 7517 to be read to defendant on examination 7571 to be sent to magistrate before whom defendant is taken 7530 to be returned to court : 7589 to be transmitted to clerk 8169 when deemed complete 6484 when may be read in evidence 8170 DEPUTY, oath of , 357 powers and liabilities .... 1820 deputy during absence 1816 same 1817 senior deputy to act in case of vacancy 1818 appointment of, by public officer, for reward 6387 DESCENTS. See Succession. DESCRIPTION pleading property 4210 survey, property in, order for 4543 DESERTION. See Abandonment. as ground of divorce. See Divorce. DESTRUCTION of will is revocation 5731 of will, how proved 5732 of public records, by officer 6464 of public records, by other than officer 6465 DETAINER. See Unlawful Detainer. unlawful a misdemeanor 6962 DETRIMENT. See Damages. DEVISE. See Will. DIES, making or possessing, for counterfeiting 7038 DIGGING on land of another 7158 DIPLOMA of physician must be filed for record 1298a DIRECT EVIDENCE. See Evidence, DIRECTORS OF CORPORATIONS denned 7127 See Corporations. DISABILITY, abatement 4108 limitations must exist when right accrues to avoid 4075 DISAFFIRMANCE, how affected by minor 2407 when minor cannot exercise 2408 DISBURSEMENTS, costs 4900 costs, bill of 4912 DISCHARGE. See Insolvency. arrest from exonerates bail 4253 arrest from, on bail, etc 4248 juror, sick 4391 prisoners of, in civil actions 5075 60 946 GENEEAL INDEX. DISCHARGE IN CRIMINAL PROCEEDINGS of one of several defendants for witness 7861 of one of several defendants for witness, effect of 7863 of grand jury 7620 of jury, in certain cases 7872 of jury, for illness of juror 7904 of jury, when they canuot agree 7905 of jury, by reason of accident 7906 of defendant 7569 order of, how made 7578 of defendant, because facts do not constitute offense 7876 ' of defendant, on verdict of acquittal 7931 of defendant, after motion in arrest of judgment 7963 of defendant, when judgment reversed 8074 of defendant, when action dismissed \ 8214 of defendant, on habeas corpus 8354 of fugitives from justice 8423 DISCLAIMER, generally 4539 DISCONTINUANCE, entering 4354 DISCRETION, -costs, when court has, as to 4904 costs, eminent domain 5227 costs, partition in 4604 costs, postponement of trial 4908 order of proof, etc , 4383 of court, as to argument 7857 DISEASE, public exposure of person affected with contagious 6927 prisoners may be removed on account of 8536 DISFRANCHISEMENT for falsifying accounts or embezzlement 6975 of legislator , 6413 DISGRACE, extortion, by threat of 7081 DISMISSAL, appeal is the remedy for 4354 appeal of, effect of 4823 appeal of, failure to file papers, etc 4822 failure to appear 4371 generally 4354 security for costs, for failure to give 4916 of charge, by grand jury, effect 7667 of appeal 8056 of action, when may occur 8212 of action, court may order 8215 of action in misdemeanor, bar to another prosecution 8217 DISOBEDIENCE. See Contempts. DISQUALIFICATIONS. See Qualifications. judge 3900 juror 4380 referee • 4417 DISORDERLY' HOUSE,' keeping '. '. .' .' '. '. '. '. .' .' '. '. '. .... '. '. .... '. '. '.'.'.'.'.'. '. 6842 DISPERSAL of unlawful assembly 6955 refusing to disperse on command 6960 DISPOSAL of fines and forfeitures 8128 of issues on calendar 7789 of property stolen or embezzled . ... 8238 DISTRIBUTION. See Estates of Decedents. of reports of supreme court 193 books to be marked before 194 of property of decedent to be withheld till taxes paid 1519 of community property on divorce 2481 of capital stock on dissolution of corporations 2648 of property of intestates 5702 GENERAL INDEX. 947 DISTRICT ATTORNEY, eligibility 2050 when absent or disqualified, court to appoint 2051 duties of 2052 to receipt for moneys received 2053 not to receive fee or reward from prosecutor 2054 not to act against people 2054 not to have partner engaged for defense 2054 counsel for defendant, when court may appoint 2055 compensation of 2055 to institute action on assessor's bond, when 1458 to institute against tax collector, when 1522 controller may require, to commence certain action 1084 settlement with auditor 1708 office at county seat 1822 to reside at county seat 1825 bond 1828 penalty for neglecting to pay over certain moneys 1853 duties 2052 legal adviser of commissioners 2056 not to act for claims against county 2057 salary 2152-2156 salary from territory and mileage 2157 disclosing fact of indictment found G531 dismissal of action on application of. ... . 8215 duty of, on inquisition : 8014 duty of, when fugitive from justice arrested 8422 failing to attend, court may appoint 7889 proceedings for removal of 7458 to open prosecution 7855 DISTURBANCE of court 7389 of religious meetings 6820 of the peace 6959 DITCHES, highways crossing 935 how assessed 1460 right of way for 3181 owner of, to keep in repair r 3181 appointment of appraisers 3182 notice of hearing 3182 oath of appraisers 3183 assessment and report of 3183 rights of petitioners upon tender of damages assessed 3183 right of way from spring 3185 aqueducts and flumes must be kept in repair , 3186 order of right to use of water 3189 duty of owner to keep supply of water in 3189 repair of, expenses of, how paid , 3203 See Water. DIVIDENDS. See Corporations. DIVORCE, pleadings and testimony not to be made public 3861 jurisdiction 2483 dissolves marriage . . . 2455 defined 2456 for what causes granted 2457 adultery as ground for 2458 extreme cruelty 2459 willful desertion 2460 willful neglect 2461 948 GENERAL INDEX. DIVORCE— Continued. habitual intemperance 2402 certain causes for, must exist how long 2463 when to be denied 2464 collusion as ground for denying 2465 recrimination as ground for denying 2466 bar to recriminator's defense >. . . . 2467 requisites as regards residence 2469 presumption of domicile 2470 not to be granted by default 2471 expense of action and alimony 2472 disposition of children 2473 support of wife and child 2474 security for maintenance and alimony 2475 what property resorted to for alimony and relief 2476 when relief not granted to wife 2477 application of property to support of children 2478 legitimacy of issue 2479 disposition of common property 2480 same 2481 appeal in action for 2482 private sittings 3861 DOCKET, attorney -general to keep 250 definition of 4458 entries, how made 4458 judgment of 4457 justice's 4759 justice's, foreign, copy evidence 5980 public inspection, open for 4459 redemptioner must produce copy 4495 satisfaction, entering in 4461 transcript for filing in other counties 4460 of justice's court, how kept 8282 DOCUMENTS, mutilation of, by public officer 6389 refusal of officer to surrender 6389 See Instruments, Written. DOGS, when considered as property 7052 worrying and killing sheep 1205 knowledge of owner need not be shown 1205 may be killed 1205 dog and cock-fighting 6958 Sfifk A yi 7 ill fll 9 DOMINANT TENEMENT. See Easements and Servitudes. DOORS may be broken open to retake escape 7560 DOUBT as to guilt of defendant 7858 as to degree of crime 7859 DOWER not allowed 2506 DRAWER AND DRAWEE. See Bill of Exchange. DRIFTWOOD. See Lumber. DRUGGIST. See Apothecary. DRUGS, administering stupefying, with evil intent 6705 adulterating 0918 apothecary omitting or wrongfully labeling 6916 regulating sale of 1282-1297 DRUNKENNESS. See Intoxication; Intemperance. DUCKS, destruction of, when prohibited 7189 See Game. GENEBAL INDEX. 949 DUEL defined 6711 duty of officers to prevent 6715 jurisdiction of indictment for, in certain cases 7482 punishment for fighting, with fatal result 6712 punishment for fighting, without fatal result 6713 posting for not fighting 6714 witnesses to 6716 DUPLICATE of will, revocation of 5733 assessment book. See Revenue. DURESS, when defense for crime committed 6330 EARNINGS, of wife living separate, separate property 2502 of minor children 2502 EARTH, carrying away, from land of another 7158 EASEMENTS AND SERVITUDES, what pass by transfer of prop- erty 2926 acquired by establishing highway 860 right of way to mining claims 3130 for road ditch or flume 3131 petition to district court, for 3132 citation to show cause against 3133 commissioners to assess damages 3134 duty of commissioners 3135 report, when set aside 3136 rights upon tender of damages 3137 appeal from assessment of damages 3138 questions on appeal 3139 rights pending appeal 3140 costs of appeal 3141 expenses, etc., by whom paid 3142 EDITORS, liabilities of, for libel 6742 EDUCATION. See Schools. EJECTMENT, alienation during suit 4540 costs , 4901 improvements, set-off for 4541 joinder of causes of action with 4169 survey, etc., of property 4542 title, plaintiff's, terminating during suit 4540 verdict in 4397 ELECTION, day of general holiday 10 of members of assembly 117 certificate of, evidence 121 of members of legislature, who may contest 125 proceedings in contest 126 to fill vacancies in legislature 433 general, when held 465 what officers to be elected at general election 466 special, when held 467 proclamation by governor 475 notice of election 477 notice must be posted 478 publication of governor's election proclamation 480 printing same 481 expense of, how paid 482 same 483 of county and township officers 1814 Appointment of election judges 520 of clerks of election , 523 Arrest, electors privileged from 492 950 GENERAL INDEX. ELECTION— Continued, Ballot-box, description of 531 to be exhibited at polls 532 Ballots defined 545 form of 540 to have no marks on outside 547 to have no marks to tell who voted v . . 548 how folded 549 not to be folded, how 550 folded together, rejected 551 not rejected for obscurity 552 how far rejected 553 written and printed names, which rejected 554 printed tickets, names, how erased 555 two votes for same person counted as one 556 not in compliance, not received 557 Boundaries of election precincts 510 of election precincts, altered how 511 Canvass of votes, public, and without adjournment 585 commenced, how 586 counting votes 588 papers to be sealed up 589 Canvass of returns, meeting of commissioners for 600 declaration of result 601 district returns 602 territorial returns 603 duty of territorial secretary 604 defects in forms, when disregarded 605 Certificate, when to be issued by secretary of territory 191 Challenge, grounds 570 oath of elector when challenged 571 conviction for felony 572 if person refuses to be sworn, vote rejected 573 rules to determine residence 574 proceedings in determination of 575 Clerk of Election may administer oath 524 by whom appointed 523 sworn 524 Commissions, void on election, annulled or set aside 5041 Compensation of officers of election 493 Contesting, of members of legislature 125 generally 5026 contest of district officers • • 5042 Crimes against laws of. See Offenses. District returns, how made up 602 Election precincts, commissioners to establish 510 board may alter 511 place for holding election 512 Electors, privileged from arrest 492 qualifications and disabilities 500 intimidating and corrupting 6364 registration of 502-5096 disturbing elections 6365 refusal of, to be sworn by judges of election 6355 Form, poll-lists 540 ballot 546 Governor to issue proclamation of election 475 GENERAL INDEX. 951 ELECTION— Continued. Judges of election, how appointed 520 not of same political party 521 may administer oaths 522 to be sworn 523 Oath, officers may administer 522 Offenses accessories to violation of laws of 6363 adding to or subtracting from votes given at 6362 betting on 6366 changing or altering ballots or returns by officers of 6350 falsely swearing to qualifications as voter 6489 forging or altering returns 6361 illegal voting at 6356 intimidating electors 6364 procuring illegal votes at 6358 refusal to be sworn by or to answer judges of 6355 violating any provisions of law concerning 6367 violation of laws of, by officers 6354 disturbing elections 6365 Place of election, designated, by whom 512 Plurality, to elect 490 Poll-lists, form 540 want of form, not to vitiate 541 Polls, opening and closing 530 ballot-box exhibited at 532 Precincts, commissioners to establish 510 board may alter 511 place in, for holding elections 512 Proclamation, by governor 475 to contain what 476 published by commissioners 480 of special elections 479 Qualifications. See Electors, supra. Rejection of tickets folded together 551 obscurity of name, or office, no ground for 552 of vote for designating too many persons 553 written and printed names 554 of vote, for refusal to be sworn 571 Residence, rules for determination 574 Returns, papers to be sealed up 589 district, how made up 602 territorial, how made 603 duty of territorial secretary 604 School Trustees, election of 665 Secretary of Territomj, duty relative to election returns 604 Tie-vote, proceedings on 491 Time of opening and closing polls 530 Vote, plurality to elect 490 when rejected 557 as ballots. See Ballots. Voter, qualifications of 500 Voting, when to commence and continue 565 manner 566 putting ballots in box 568 day of, a holiday 10 corporation, how conducted 2594 ELISOR defined 1887 has powers of sheriff 1891 952 GENERAL INDEX. EMBANKMENTS, injuring or destroying 7162 EMBEZZLEMENT, administrator, etc., by 5591 arrest, ground for 4241 estate of decedent 5431 ward's property 5820 refusal to pay over money collected for another 6523 claim of title, ground of defense 7073 defined 7065 distinct act of taking not necessary 7071 evidence of debt, subject of 7072 intent to restore property no defense 7074 jurisdiction of indictment for, in certain case 7488 of accounts by public officer 6975 pleadings in indictment for 7694 punishment of 7076 restoration ground for mitigation of punishment 7075 when officer of association is guilty of 7066 when carrier guilty of 7067 when trustee, banker, etc., guilty of 7068 when bailee, tenant, or lodger guilty of 7069 when clerk, agent, or servant guilty of 7070 EMBRACERY, punishment of 6430 EMINENT DOMAIN, for road purposes 930 decrees to be recorded 934 in construction of toll bridge 1081 for toll roads 1027 answer 5218 common use 5219 complaint . 5216 condemnation, facts necessary to appear before 5213 costs 5227 counter-claim 4184 court, power of 5215 cross-complaint 4188 damages 5220 damages, when to be fixed 5221 damages, interest, etc 5220 defend, who may 5218 district court jurisdiction 5215 estates, what may be acquired 5211 fencing 5220 hearing 5220 interlocutory order for possession 5226 locating property required , 5214 order for condemnation 5225 payment, when to be made 5223 possessing, putting plaintiff into 5226 practice, rules of 5228 property, what may be acquired 5212 purposes for which it may be exercised 5210 railroad crossings 5219 statutes for taking property in cities or towns for street pur- poses not affected 5229 summons 5217 title defective, new proceedings 5222 value, etc 5220 EMPLOYE, person refusing to give name of, to collector 6982 ENCEINTE, convict when, course to pursue 8017 GENERAL INDEX. 953- ENGINEER of locomotive omitting to ring bell at crossing. 6923 of locomotive, intoxication of 6924 of locomotive, violation of duty by 692& ENGLISH LANGUAGE, proceedings to be in 3923 entries by decedent 5996 ENTRY, real estate, on, when deemed valid 4038 ENTRY OF JUDGMENT OR ORDER, district court open for. . 4450 EQUALIZATION, BOARDS OF. See Revenue. territorial board of 1463 ERROR, WRIT OF, generally 4997 ERRORS disregarded, to be 4231 law of, new trial for 4439 in assessment book 1700 in indictment does not invalidate 7687 in pleadings, proceedings, etc 8236 ESCAPE, attempt to 6453 assisting prisoner to 6456 carrying into prison implements for aiding 6457 from territorial prison 6452 from other than territorial 6454 from territorial prison, expense of trial of 6458 jurisdiction of indictment for 7498 officer suffering convict to 6455 when doors and windows may be broken 7560 ESTATE FOR LIFE, decreeing ended on tenant's death 5674 setting off in partition 4578 ESTATES OF DECEASED PERSONS, absentees, account 5646 absentees, agents may be appointed for 5643 absentees, agent's bond 5647 absentees, agent's compensation 5644 absentees, claim for money in treasury 5648 absentees, sale of property of 5646 absentees, unclaimed estate 5645 account, citing person intrusted with estate to 5434 administration letters, contesting 5360 administration letters, entitled to, who, if others fail to appear 5363 administration letters, evidence of, entry in minutes conclu- sive 5362 administration letters, form of 5350 administration letters, further, after final discharge, if further property discovered 5650 administration letters, hearing 5361 administration letters, incompetent, who 5355 administration letters, joint administrators 5353 administration letters, married women 5356 administration letters, minor entitled, who appointed 5354 administration letters, next of kin 5351 administration letters, nominee, grant to 5365 administration letters, notice of application 5359 administration letters, order of persons entitled to 5353 administration letters, partner not entitled to 5351 administration letters, petition for 5357 administration letters, proof required 5364 administration letters, revoking, citation 5367 administration letters, revoking, entitled, person better 5368 administration letters, revoking, hearing 5368 administration letters, seal necessary ^874 administration letters, special, account under 5396 954 GENERAL INDEX. ESTATES OF DECEASED PERSONS— Continued. administration letters, special, bond under 5393 administration letters, special, duties under 5394 administration letters, special, entitled to, who 5392 administration letters, special, oath 5393 administration letters, special, powers 5394 administration letters, speoial, when granted 5390 administration letters, special, vacation, may be issued in. . . . 5391 administration letters, transcript of minutes equivalent to ... . 5403 administration letters, when to apply for 5358 administration letters, where granted 5290 administration letters, will found afterwards 5397 administrator, public, account, order to 5690 administrator, public, actions by 5687 administrator, public, acts when 5681 administrator, public, bond .... 5682 administrator, public, duty on appointment of another 5685 administrator, public, embezzlement 5688 administrator, public, failure to pay over 5694 administrator, public, generally 5695 administrator, public, interest, not to have in payments 5693 administrator, public, inventory 5684 administrator, public, letters to 5682 administrator, public, oath of 5682 administrator, public, priority of ;•••.• ^51 administrator, public, property to be handed to territorial treasurer 5692 administrator, public, return every six months 5691 administrator, public, stranger dying, notice of 5683 administrator, public, waste, civil officers to notify of 5686 advancements to heirs ... 5642 appeals 5695 appraisement. See Inventory. attorney for minors, absentees, devisees, legatees, creditors, etc 5669 bond, additional, citation for 5381 bond, additional, disobeying order for 5383 bond, additional, judge may order of own motion 5385 bond, additional, order for 5382 bond, additional, petition for 5380 bond, additional, security 5377 bond, additional, suspending executor, etc 5384 bond, additional, vacation, application, may be made in 5389 bond, additional, when required 5372 bond, approval by judge 5376 bond, conditions of 5373 bond, deficient, citation on 5377 bond, dispensed with, when 5379 bond, generally 5371 bond, justification on 5376 bond, separate, each administrator, etc 5374 bond, several, recoveries on same 5375 bond, sureties, release of • 5386 bond, sureties, release of, neglect to give new sureties 5388 bond, sureties, release of, new sureties 5387 children, estate under fifteen hundred dollars to go to widow and then 5445 citations 5658 GENERAL INDEX. 955 ESTATES OF DECEASED PERSONS— Continued. claims, action for after rejection 5468 claims, action pending at decease 5472 claims, affidavit when required 5464 claims, allowance of 5466 claims, allowance in part, effect 5473 claims, allowance to be filed after 5477 claims, allowed, when executor, etc., personally liable 5612 claims, claimants incompetent witnesses 5957 claims, contingent, order for payment 5611 claims, contribution, heir, devisee, etc., not liable for after order for payment 5613 claims, costs, executor personally liable for on judgment 5479 claims, disputed order for payment 5611 claims, documents lost 5467 claims, examination of claimant 5469 claims, execution for 5612 claims, executor, etc. , by 5480 claims, foreclosure suit may be maintained before presentment 5470 claims, interest on 5464 claims, interest, debt bearing, may be paid whether presented or not : 5483 claims, judgment against executor, etc. 5474 claims, judgment creditor may redeem 5475 claims, judgment not a lien where death after verdict 5476 claims, judgment must be presented 5475 claims, liability of executor, etc., personal after order for pay- ment 5612 claims, liens, etc 5467 claims, limitation 5469 claims, limitation does not run during vacancy in administra- tion 5471 claims, lost documents . 5467 claims, mortgage under 5470 claims, notice to creditors 5461 claims, notice to creditors, failure to give 5481 claims, notice to creditors, proof of 5462 claims, omitted from order for payment, barred 5613 claims, payable out of property • 5527 claims, payment of 5606 claims, payment, order for 5610 claims, pending action » 5472 claims, presentment of 5463 claims, probate judge of 5465 claims, reference of 5477 claims, rejection of 5466 claims, rejection of, action must be brought within three months 5468 claims, sale of real estate, presentation on . . 5508 claims, statement of, to be returned 5482 claims, writings, copies to be filed 5467 costs 5671 creditors, debtor's discharge in will is not valid against 5425 debt, discharged by will to be included in inventory 5425 debt, payment of contingent claims , 5611 debt, payment of disputed claims 5611 debt, payment of , executor, etc., personally liable after order 5612 debt, payment of, extension of time for closing estate 5614 956 GENEKAL INDEX. ESTATES OF DECEASED PERSONS— Continued, debt, payment of funeral expenses 5609 debt, payment of insolvent estate . . 5608 debt, payment of mortgaged property 5607 debt, payment of, omitted from order for payment, barred. . . . 5613 debt, payment of order for 5610 debts, payment of, out of designated property l 5527 debts, payment of, priority 5606 debts, payment of, rebate under 5611 debts, payment of, sickness, expenses of 5609 debts, property chargeable with 5490 distribution 5599 distribution, heirs may contest all matters 5601 distribution, final, generally 5599 distribution, final, non-resident decedent 5633 distribution, final, notice of application for 5629 distribution, final, order for 5627 distribution, final, partition on 5631 distribution, final, taxes 5630 distribution, partial, application for, notice of 5622 distribution, partial, application for, resisting 5623 distribution, partial, bond on 5625 distribution, partial, costs 5624 distribution, partial, legacies, payment of or giving bonds .... 5621 distribution, partial, order for 5624 distribution, partial, partition on 5624 distribution, real property, recording order 5670 distribution, taxes 5630 embezzlement of estate, account, citing persons to 5434 embezzlement of estate, citation 5432 embezzlement of estate, citation, disobedience to 5433 embezzlement of estate, compelling disclosure by imprison- ment 5433 embezzlement of estate, damages double 5433 embezzlement of estate, letters, before 5431 embezzlement of estate, penalty 5433 executors and administrators, absconding, etc 5595 executors and administrators, accounts, etc 5603 executors and administrators, account of receipts and disburse- ments, and claims allowed 5587 executors and administrators, account after authority revoked 5594 executors and administrators, account within thirty days after notice to creditors 5593 executors and administrators, account, attachment for disobey- ing citation 5592 executors and administrators, account, final 5615 executors and administrators, account, final, neglect to render 5616 executors and administrators, account, hearing 5601 executors and administrators, account, objections to 5600 executors and administrators, account, petition for citation for, at third term 5588 executors and administrators, account, settlement of ... 5598 executors and administrators, account, settlement conclusive 5602 executors and administrators, account, settlement, proof of notice 5603 executors and administrators, account, vouchers 5597 executors and administrators, action, only those to whom let- ters issue need be joined 5556 GENERAL INDEX. 957 ESTATES OF DECEASED PERSONS— Continued. executors and administrators, actions by and against, limita- tions 4071 executors and administrators, actions by and against, generally 5550 executors and administrators, acts valid till revoked 5402 executors and administrators, bond of former executor, etc., action by, on 5555 executors and administrators, charged with all estate 5581 executors and administrators, claims, must not purchase 5585 executors and administrators, coadjutor disqualified, power. . 5399 executors and administrators, commissions 5586 executors and administrators, compensation, etc 5584 executors and administrators, compounding debts 5557 executors and administrators, contempt, removal for 5672 executors and administrators, costs allowed 5479 executors and administrators, debt not discharged by appoint- ment as executor 5424 executors and administrators, debts uncollected without fault. 5583 executors and administrators, discharge final 5649 executors and administrators, discharge, further letters may be issued after 5650 executors and administrators, executor of executor 5344 executors and administrators, former executor, etc., action on bond of 5555 executors and administrators, fraudulent conveyance by tes- tator 5558 executors and administrators, heirs, rights against 5429 executors and administrators, incompetent, what to be done . . 5400 executors and administrators, judgment against 5474 executors and administrators, liability personally 5580 executors and administrators, loss and profit of estate 5582 executors and administrators, marriage of administratrix 5343 executors and administrators, marriage of executrix 5343 executors and administrators, misconduct on sale '. . 5538 executors and administrators, partnership 5554 executors and administrators, personal liability 5580 executors and administrators, possession of estate 5429 executors and administrators, possession, to take 5550 executors and administrators, profit and loss of estate 5582 executors and administrators, purchase by, fraudulent 5543 executors and administrators, real estate to be delivered to heirs after ten months 5430 executors and administrators, resignation 5401 executors and administrators, revoking authority for not ac- counting 5595 executors and administrators, some only, acts of, valid 5346 executors and administrators, sue, may, for death 4100 executors and administrators, sue, may, without beneficiary . . 4092 executors and administrators, suspension of 5412 family allowance, apparel, etc . 5440 family allowance, apportionment between widow and children 5444 family allowance, exempt from execution, property 5441 family allowance, extra 5442 family allowance, generally 5441 family allowance, homestead 5441 family allowance, preference • ■ . . 5443 family allowance, summary administration under fifteen hun- dred dollars 5445 95 S GENERAL INDEX. ESTATES OF DECEASED PERSONS— Continued. family allowance, wife and children to have fifteen hundred dollars estate '. . 5445 fraudulent conveyances by deceased 5558 guardian. See Guard! cm. heirs, -advancements to 5642 heirs, contest all matters, right to • 5601 heirs, real estate, entitled to possession at end of ten months 5430 heirs, rights against executors 5429 homestead, appraiser's report 5451 homestead, apportioning between survivor and children 5444 homestead, assignees of owners of, have all their powers and rights 5452 homestead, costs 5452 homestead, generally : 5453 homestead, liens on, solvent estate to pay 5448 homestead, recording decree 5670 homestead, setting off 5449 inventory, etc., appraiser's appointment, fees, etc 5421 inventory, appraiser's oath 5422 inventory, appraisement, unnecessary if ail estate money .... 5423 inventory, debt discharged by will to be included 5425 inventory, debt due by executor 5423 inventory, form of " 5422 inventory, homestead to be included 5420 inventory, moneys must be included in 5423 inventory, oath to 5426 inventory, property discovered afterwards 5428 inventory, revocation of letters for not filing 5427 judge, disqualification of 3900 jurisdiction, probate, of courts 3841 issues 5667 new trials 5665 oath, executors', administrators', 5370 parties claiming, are incompetent witnesses ... 5957 partition of real estate, etc 5631 partnership, survivor entitled to settle up business 5554 payment of debts, designated property 5527 payment of debts, estate is subject to 5530 payment of debts, order of 5606 payment of debts, will, provision in, for, effect of 5527 payment of debts, will, provision insufficient 5529 practice, rules of 5664 probate, chambers, judge at, may grant 3910 probate, conclusive after one year 5324 probate contest 5305 probate contest, answer 5308 probate contest, appeal 5310 probate contest, certificate of will proved 5313 probate contest, demurrer 5308 probate contest, grounds to be filed 5308 probate contest, judgment 5310 probate contest, jury 5309 probate contest, none 5306 probate contest, recording will and proof 5314 probate contest, trial 5309 probate contest, verdict 5310 GENEKAL INDEX. 959 ESTATES OF DECEASED PERSONS— Continued. probate contest, witnesses' testimony good as evidence for the future 5312 probate contest, witnesses, who to be examined 5311 probate, courts of, jurisdiction 3841 probate, hearing 5304 probate letters, administrator's, with will annexed . 5341 probate letters, durante minore setate 5345 probate letters, executors, etc., who incompetent 5341 probate letters, form of 5348 probate letters, further, after final discharge, if further prop- erty discovered 5650 probate letters, issue, to whom 5340 probate letters, objections to granting to be filed 5342 probate will, nuncupative, contest as to 5331 probate letters, seal unnecessary 3874 probate letters, transcript of minutes equivalent to 5403 probate letters, petition for 5298 probate letters, renunciation by executor, constructive, .i 5299 probate, revoking citation to persons interested 5319 probate, revoking costs 5323 probate, revoking, hearing 5221 probate, revoking, judgment 5321 probate, revoking, judgment, effect of 5322 probate, revoking, time allowed 5318 probate, where granted 5291 probate will, citation to produce 5300 probate will, foreign 5317 probate will, olographic 5307 probate will, lost, etc., certifying, recording, and granting let- ters 5327 probate will, lost, etc., existence, must have been in, at time of death 5326 probate will, lost, etc., proof of 5325 probate will lost, etc., restraining acts of executors of other will, etc 5328 probate will, nuncupative, proof of 5331 probate will, nuncupative, requirements on proof of 5330 probate will, to be delivered to court 5296 proof of will to be filed 5314 public administrator, county treasurer to be 5680 public administrator 5695 publication, how made 5656 real estate, specific performance of testator's contracts 5575 recording order is notice, etc 5656 sale, account to be returned 5542 sale, debts, estate all chargeable with 5490 sale, executor, etc. must not be purchaser 5543 sale, fraud 5543 sale, limitations of actions for vacating 5541 sale, misconduct of executor 5538 sale, mines, etc 5499 sale, mines, order of sale 5502 sale, mines, order of sale, proceedings subsequent to , 5503 sale, mines, order to show cause 5501 sales, mines, order to show cause, publication of description of estate 5663 sale, mines, petition 5500 960 GENERAL INDEX. ESTATES OF DECEASED PERSONS— Continued. sale, order, necessary when 5491 sale, personalty, choses in action 5496 sale, personalty, on petition for sale of realty , 5604 sale, personalty, order 5497 sale, personalty, partnership interests 5496 sale, personalty, petition 5495 sale, personalty perishable \ . . 5494 sale, personalty, sale, conduct of 5498 sale, petition for 5493 sale, power, sale under 5528 sale, purchaser must not be executor, etc 5543 sale, realty, biddings, opening 5520 sale, realty, confirmation 5524 sale, realty, conveyances 5523 sale, realty, credit on 5519 sale, realty, county must be within 5516 sale, realty, debts, contribution among legatees, etc 5531 sale, realty, debts, estate subject to 5530 sale, realty, debts, where will provides for 5527 sale, realty, debts where will provision insufficient 5529 sale, realty, description; publication of 5663 sale, realty, hearing 5508 sale, realty, land contratced for by deceased 5532 sale, realty, lien on land 5536 sale, realty, mortgaged land 5536 sale, realty, neglect to apply for 5513 sale, realty, notice to be given 5515 sale, realty, objections to, may be filed 5521 sale, realty, order of sale 5510 sale, realty, order to show cause 5506 sale, realty, personal property, order for sale of, on application for 5604 sale, realty, petition for 5492 sale, realty, postponement of, notice, etc 5525 sale, realty, private bids 5517 sale, realty, private confirmation of 5518 sale, realty, private, how made 5512 sale, realty, public or private 5512 sale, realty, resale 5520 sale, realty, return by executor 5520 sale, realty, when to be sold 5504 sale, realty, witnesses, examination of 5509 sale, recording order confirming 5670 stranger dying, notice to public administrator 5683 summary administration of estates less than fifteen hundred dollars 5445 taxes, to be paid on distribution 5630 testamentary document to be delivered to court 5296 transfer of proceedings 5404 trials 5668 wife, estate under fifteen hundred dollars to go to her and chil- dren 5445 will and certificate of proof to be filed 5314 will, citation to produce 5300 will, delivered to court, to be 5296 will, foreign, filing copy 5316 will, foreign, hearing 5317 GENERAL INDEX. 961 ESTATES OF DECEASED PERSONS— Continued. will, foreign, recording 5315 will, found after administration granted 5397 will, nuncupative 5329 will, where proved 5290 ESTRAYS, person taking up must notify owner 1360 when may be taken up 1361 notice when owner unknown ] 362 rights of owner 1363 settlement of amount of damages 1364 damages a lien on animal 1364 sale of 1365 disposition of proceeds of sale 1365 penalty for rescue 1 366 penalty for neglect to advertise estray 1367 claim of proceeds by owner 1368 when must not be taken up 1369 penalty for conversion 1370 conversion of 6888 ETHER, administering, with evil intent 6705 EVIDENCE, testify denned 16 certificate of election to legislature 121 testimony of witness, not used against himself 149 protest of bill by notary 290 receivable before board of equalization 1479 assessment book, of what 1558 affidavit of tax collector of publication of delinquent list 1535 divorce not to be granted on uncorroborated 2471 record of inventory of wife's property 2501 certified copy of articles of incorporation 2585 handwriting to instrument 2968 account, where items of, refused, not to be given in evidence. 4209 acknowledged documents, evidence. . . 5998 acknowledged documents, certified copies of 5998 administration entry in minutes conclusive 5362 administration, letters of, transcript of minutes equivalent to 5403 admission, entries in books 5996 admission, writing, execution of 5995 adultery, confession alone insufficient in divorce 6052 affidavit, when may be used 6052 affidavit, who may take 6055 affirmation 6127 affirmation, form of 6131 agreement, parol, when invalid 6009 alteration of writing, producer must explain 0030 art, books of 5990 board, entry by, prima facie 5979 books, evidence 5969 books, official, entries in 5979 books, public, entries in 5979 certificate of copy, writing, what it must state 5982 certificate of purchase or location proves what 5983 character of witness or party, good 6084 charts 5990 condition precedent 4212 construction, is for court 5951 counter-claim 4184 credibility, impeaching 5956 61 902 GENERAL INDEX. EVIDENCE— Continued. credit, representations as to, must be in writing 6011 cross-complaint .- 4188 cross-examination 6079 deposition defined 6062 deposition, postponement of trial for 6065 deposition, state for use in , . . 6071 deposition, territory, out of, how taken 6062 deposition, territory, out of, where ^may be taken 6059 deposition, territory, within, how taken 6067 deposition, territory, within, when may be taken 6060 detainer, unlawful, in 5104 errors and defects disregarded 4231 established by law, whatever is, is judicially recognized ... . 5950 examination, cross 6076 examination, direct 6076 flags, judicially recognized 5950 forcible entry in 5104 frauds, statute of, agreement not to be performed within one year 6009 frauds, statute of, goods, sale of, two hundred dollars 6009 frauds, statute of, guarantee 6009 frauds, statute of, lands, transfer of 6007 frauds, statute of, lease 6007 frauds, statute of, marriage, promise in consideration of 6009 frauds, statute of, implied trust 6008 frauds, statute of, will 6008 gold coin, etc 4453 historical books 5990 husband and wife, parties 4093 impeaching witness 6080 interpreter 5960 judge, witness, may be 5959 juror, witness, may be 5959 knowledge of court 5950 knowledge, judicial 5950 knowledge, judicial, court to declare jury to accept 5951 law, foreign country, how proved 5969 law, questions of, for court 5951 law, of a state, how proved 5969 leading questions 6077 location, certificate of, proves what 5983 maps 5990 mining, laws and customs 4547 nature, laws of, judicially recognized 5950 notice, judicial 5950 notice to produce 5999 nuisance 4529 oath, etc., administration 3862 oath, form of 6128 offer 6110 offer, equivalent to payment 6110 officers, entries by prima facie 5979 official acts, public and private, are judicially recognized 5950 official documents, proof of ... 5977 parent, action for injury or death of minor child by 4099 partition 4560 perjury, two witnesses requisite 6005 GENERAL INDEX. 963 EVIDENCE— Continued. perpetuating testimony 6116 prima facie, boards, entries by 5979 prima facie, charts 5990 prima facie, decedents' entries 5996 prima facie, historical books 5990 prima facie, justice's docket 4760 prima facie, maps 5990 prima facie, officers, entries by 5984 privileged communications 5958 probate, contest in 5311 probate, letters testamentary, minutes equivalent to transcript of 5403 publication, proof of, by affidavit 6053 purchase, certificate of, proves what 5983 quieting title to land 4538 quieting title to money or obligation 4928 real property, transfer of 6008 recalling witness 6081 receipt, payer entitled to 6111 record, judicial, copy when admissible 5976 record, judicial, state, justice of the peace of 5981 record, judicial, territory, or other of United States, how proved 5974 record, judicial, what 5973 record, public, of private writing, proved, how 5978 re-examination 6081 refreshing memory 6078 representations as to credit not binding if nat written 6011 science, books of 5990 seal of court, etc., judicially recognized 5950 seal, private 5989 seal, public 5989 seduction 4097 signatures, judicially recognized 5950 slander in 4216 statutes, private 5967 statutes, public 5967 statutes, recitals in, effect 5972 stock sold for delinquent assessment, action to recover 4056 subpoena 6035 tenants, waste by 4530 tender 6110 testimony, when clerk to take down 4929 treason, two witnesses required 6005 verification of pleadings 4199 waste 4530 will, lost, two witnesses required 6005 will, requirements of, as 6006 witness, answer, must 6091 witness, arrest of 6095 witness, attendance under subpoena 6041 witness, character of 6084 witness, child 5957 witness, competent, who is 5957 witness, concealed 6038 witness, disobedience 5155 witness, eundo, morando, et redundo 6092 witness, every one (except, etc.) may be 5956 964 GENERAL INDEX. EVIDENCE— Continued. witness, examination of ' 6076 witness, exclusion of, from court room , 6075 witness, good character of, etc 6084 witness, impeaching credit of 6083 witness, incompetent, unsound mind, persons of .v 5957 witness, incompetent, child under ten 5957 witness, incompetent, parties against estate of deceased 5957 witness, interpreter 5960 witness, judge or juror may be 5959 witness, leading questions 6077 witness, perjury, more than one 6005 witness, present in court, person may be made 6039 witness, prisoner 6047 witness, privileged 5958 witness, attorney 5958 witness, clergyman 5958 witness, husband 5958 witness, physician 5958 witness, priest 5958 witness, public officer 5958 witness, surgeon 5958 witness, wife 5958 witness, recalling 6081 witness, re-examination of 6081 witness, refreshing memory 6078 witness, refusal to answer 6041 witness, residence out of county, or thirty miles off, need not attend 6039 witness, subpoena 6035 witness, subscribing, denying, or forgetting execution, maybe proved by other evidence 5994 witness, subpoenaed, must attend 6090 witness, subpoenaed, warrant for 6043 witness, treason, more than one necessary 6005 witness, will lost, more than one necessary 5325 witness, writing shown to, may be inspected by adverse party 6085 writing, acknowledgment proves 5997 writing, alteration in 6030 writing, called for and inspected need not be put in evidence. 5992 writing, construe, court must 5951 writing, custody of adverse party in 5991 writing, decedent, entries by 5996 writing, destroyed, proving contents of 5999 writing, execution, admission 5995 writing, execution, how proved ■ 5993 writing, private, public records of 5968 writing, private, public records of, proved how 5978 writing, public, books, etc 5979 writing, public, certificate, what it must state 5982 writing, public, certified copies of must be supplied 5966 writings, public, classes of judicial records 5968 writings, public, classes of, laws 5968 writings, public, classes of, official documents 5968 writings, public, classes of, private writings 5968 writings, public, classes of, public records of 5968 writings, public inspection of, by citizens 5965 GENEBAL INDEX. 965 EVIDENCE— Continued. writings, public, laws, statutes, etc 5972 writings, public, official documents, proof of 5977 writings, public, state or county of any, certified copy admis- * sible 5970 EVIDENCE IN CRIMINAL TRIALS.' ' destroying 6502 depositions, when admitted as 8170 degree of, to warrant indictment 7636 disclosing, by grand juror 6532 grand jury not bound to hear certain 7635 in rebuttal, when to be offered 7855 of breach of undertaking to keep the peace 7392 offering false 6500 of false pretenses 7870 on trial for bigamy 7867 on trial for conspiracy 7865 on trial for abortion and seduction 7869 on trial for forgery 7868 on trial for libel, truth may be given in 6740 preparing false 6501 rules of, on trial for challenge 7842 rules of, in criminal actions 7864 stolen property, receiving from minor 7057 what receivable before grand jury 7634 what may be introduced to sustain plea of not guilty 7759 when closed on either side, court may advise acquittal 7877 EVIDENCE OF DEBT. See Chose in Action. personal property includes 16 penalty for certain officers purchasing 6384 purchase of, by attorney 6524 subject of, embezzlement 7072 EXAMINATION. See Schools. EXAMINATION OF CHARGE commitment, how made and to whom delivered 7582 commitment, form of 7570 defendant entitled to produce witnesses on 7573 defendant when and how discharged 7569 defendant, when and how to be committed 7579 depositions to be read on 7571 depositions, by whom and how kept 7577 form of commitment 7583 infants and married women required to give security 7586 magistrate to inform defendant of charge and right to counsel 7565 magistrate to return depositions to court 7589 order for commitment ... 7580 order for bail on commitment 7581 postponement of 7568 security for appearance of witnesses, when and how required. 7585 testimony, how taken and authenticated 7576 time to send for counsel 7566 undertaking of witnesses to appear, when and how taken. . . . 7584 when to proceed 7567 when completed 7568 who may be present at 7575 witness refusing to give security 7587 witness unable to give security 6414 966 GENERAL INDEX. EXAMINATION OF WITNESSES. attendance, how enforced 8167 conditionally, defendant's right to 8160 conditionally, application for, how made 8162 conditionally, application to whom made 8163 conditionally, deposition of witnesses to be transmitted 8169 . conditionally, in what cases order may be applied for « 8161 conditionally, must proceed, when 8165 conditionally, order for, when granted and what to contain . . 8164 conditionally, testimony how taken and authenticated 8168 conditionally, when unable to give security for appearance . . 7588 on commission, application for ord^r how made 8179 on commission, application to whom made 8180 on commission defined 8178 on commission, interrogatories how settled and allowed 8182 on commission of witnesses residing out of territory 8176 on commission, order for 8177 on commission, order for, when granted 8181 See Commission; Deposition; Evidence; Witness. EXCEPTIONS, absence of party, decision in 4427 deemed excepted to, what 4427 either party may take 4426 form of 4428 generally 4426 judge out of office may settle 4433 judgment after 4431 judgment roll, in 4456 judicial officer other than judge, to decision of 4433 new trial, when necessary on motion for 4440 referee's report, to 4421 refusal to allow, supreme court may allow 4432 settlement, mode of 4430 need not be taken to written charges 7946 not taken on trial, but which may be taken by either party . . 7942 not taken on trial, but which may be taken by defendant . . . 7943 to challenge, and denial of 7837 to challenge, court may allow denial after 7822 to challenge, how taken 7821 when, and how settled 7944 See Bill of Exceptions. EXCESS. See Surplus. EXCUSABLE HOMICIDE defined 6568 See Homicide. EXECUTION, sale of franchise of corporations under 2642 proceedings under, against corporations 2647 exemption of homestead 3038 debts for which homestead liable 3039 of instruments affecting homesteads 3040 proceedings on, against homestead 3043 of homestead declaration 3085 book, execution 4472 claims of third persons, indemnity, etc 4478 contempt 5155 contribution, where undue proportion paid by joint debtor . . . 4499 county may be issued into any 4476 credits, levy on 4477 death of judgment creditor, effect of 4475 death of judgment debtor, effect of 4475 GENERAL INDEX. 967 EXECUTION— Continued. debts, levying on ■ 4477 debtor of execution debtor may pay sheriff 4506 executed, must be and how 4481 exemptions 4480 foreclosure for deficit 4520 form of, etc 4471 generally 4470 gold dust, returned as current value 4477 issue, may, after five years, except on money judgments 4474 issues how and to whom 4476 issues within five years from entry of judgment 4470 judgment to enforce 4473 levy, effect on property 4477 levy generally 4481 manual delivery, property capable of 4477 money, specified kind of, for 4471 person, against 4473 person, against discharge of prisoner 5075 prisoner, discharge of 5075 proceedings supplementary to 4504 property, liable to 4477 property, not affected till levy 4477 property to be levied upon 4471 real property levied upon, indexing 4472 purchaser's rights 4488 receiver, in aid of 4329 redemption 4491 returnable, when 4472 return of 4472 reviving 4474 sale, absolute, when of real estate 4493 sale, bids, etc 4485 sale, certificate of 4489 sale, deed of sheriff 4493 sale, delinquent purchaser 4485 sale, delivery under 4488 sale, generally 4484 sale, notice of 4483 sale, proceeedings 4484 sale, real estate, eviction of purchaser, remedy 4498 sale, real estate, rents after 4497 sale, redemptioner's 4491 sale, waste, damages for 4545 sale, waste, restraining 4496 sale, without notice, penalty 4483 serving, effect on property 4477 serving, generally 4481 sole trader's property 5850 supplementary to proceedings 4504 surety paying, subrogation 4499 property of married woman when exempt 4479 EXECUTION IN CRIMINAL LAW, procuring, of innocent per- sons 6488 Execution of judgment, authority for 8005 certificate of appeal stays, when filed 8048 duty of sheriff on receiving copy of judgment 8008 duty of sheriff under certificate 8049 insanity of defendant to be inquired into before 8013 963 GENERAL INDEX. EXECUTION IN CRIMINAL L AW —Continued. insanity of defendant, duty of district attorney upon inquisi- tion 8014 insanity of defendant, inquisition, how certified and filed .... 8015 of fine 8006 of fine and imprisonment 8007 of imprisonment 8008 of death, how enforced : . . 8020 of death, where to take place 8021 proceedings when judgment of death has not been executed. . 8019 proceedings when female pregnant 8017 proceedings upon jury finding defendant insane 8016 return on death-warrant 8022 stay of, in capital cases 8012 suspension of, on appeal 8048 statement of testimony to be transmitted to governor . . 8010 when female pregnant, finding of jury 8018 EXECUTIVE. See Governor. EXECUTIVE OFFICERS, number and designation of 170 trustees of capitol building 172-176 EXECUTORS AND ADMINISTRATORS. See Estates of De- ceased Persons. assessment to, in representative capacity 1439 to pay taxes of estate 1519 county treasurer ex-officio public administrator 5680 not to act till qualified 5757 guilty of embezzlement, when 7068 EXECUTORY, grant on condition precedent 2932 EXEMPTION of homesteads from forced sale 3038 execution, form 4480 property of married woman, when exempt 4479 jury, from 3943 firemen exempt from jury duty 3944 from service as juror not ground of challenge 7835 EXHIBITIONS, certain, exempt from license 1646 EXONERATION of gratuitous pledge-holder 3416 EXONERATION OF BAIL. See Bail EXPENSES of arresting fugitives from justice 8425 of trial when counties joined for judicial purposes 7909 of attendance of witness, how defrayed 8151 of insane defendant committed to asylum 8200 of trial of escape from territorial prison 6458 EXPERTS, laws of foreign country, proving 5971 as witnesses on trial for forgerv 7868 EXPIRATION of term, willful exercise of functions of office after 6388 EXPLOSION, death from 6908 EXPOSURE of person affected with contagious disease 6927 EXPRESS CONTRACT. See Contracts. EXTENSION of time of delinquent sale of stock 2628 of existence of corporations 2649 EXTORTION, attempts to commit by verbal threat 7086 by executive officer 6383 by judicial officer 6432 defined 7080 obtaining signatures by means of 7084 punishment of '. >t 7083 sending threatening letters with intent to commit 7085 what threats may constitute 7081 what sufficient to constitute 7080 GENEBAL INDEX. 969 EXTRADITION. See Fugitives from Justice. FACT, findings of 4407 issue of, arises how 4367 issue of. tried how 4369 pleaded, must be 4168 making false statement 7099 guaranty need not be in writing 6010 FALSE CERTIFICATE by officer of corporation 2603 by public officer 6530 FALSE CLAIM. See Claim. FALSE IMPRISONMENT denned 6721 punishment of 6722 FALSE PERSONATION, in certain case 7093 receiving property under 7094 FALSE PRETENSES conspiracy to obtain property under 6540 FALSE STATEMENT, consignee, etc., making 7099 FALSE SWEARING. See Oaths; Perjury. FALSE WEIGHTS AND MEASURES defined 7105 making use of 7107 stamping on casks or packages 7108 fraudulent scales for weighing or assaying ores 7110 fraudulent alteration of value of ores and certificates of such value 7111 FALSIFICATION of accounts by public officer 6975 FALSIFYING evidence 6500 records and documents 6464 FARE. See Ticket. FARMER, property exempt from execution 4480 FATHER, administration, entitled to 5359 death, action by, for 4099 injury, action by, for 4099 guardianship, entitled to .r>774 seduction, action by, for 4098 FEES. See Compensation. secretary of territory 196 clerk of supreme court 262 notary public 293 commissioner of deeds 304 sheriff taking person to insane asylum 780 physician examining insane 781 for licenses 1641 tax collector for making delinquent list 1536 county treasurer for redemption of property sold for taxes .... 1550 tax collector for seizing and selling personal property 1563 of certain county officers, withheld and forfeited, when 1674 surveyor appointed to survey land 2072 of witnesses or officers not prepaid in certain cases 1770 of coroners and elisors 1887 county officers to be prepaid 2137 none for services on habeas corpus 2138 attorneys' 4900 of jurors in district court 6136 of jurors in probate and justice's court 6138 of witnesses in district court 6139 of witnesses in probate and justice's court 6140 of interpreters 6141 referees' 4907 witnesses' 6037 970 GENEBAL INDEX. FEES EXCESSIVE, public officer receiving 6383 FEE-SIMPLE words of inheritance unnecessary 2905 title, when presumed to pass 2927 FELONY, ground for divorce 2457 limitation of action of divorce for 2468 challenge to juror for cause of conviction of 7832 denned v 6311 defendant must be present when arraigned for 7711 limitations of actions for 7501 person charged with, must be taken before whom 7525 punishment of .... 6312 FELONIES WHAT ARE, abduction of women 6769 abduction for prostitution 6771 abduction of children 6800 abortion 6794 abortion, advertising means to procure 6843 adding to or subtracting votes 6362 administering poison 6597 administering stupefying drugs 6705 aiding violation of election laws 6363 altering brands 6867 altering draught or bill or resolution 6410 altering enrolled copy of either 6411 altering jury list, by adding names, etc 6467 arson 7008 asking or receiving bribes by officer *. 6381 assaults to murder or kill 6598 assaults to rape and other crimes 6703 assaults with caustic, etc 6731 assaults with deadly weapons 6732 assisting prisoner to escape 6456 attempts to escape territorial prison 6453 attempts to commit crimes 7234 attempts to commit crimes by poison 6597 attempts to commit crimes by deadly weapons 6598 bigamy 6807 bribe, giving or offering to 6412 bribes, receiving by 6413 bribes of executive officers 6380 bribes, attempts with jurors 6433 bribes of common council, commissioners, etc 6528 bribes, receiving by judges 6431 burglary 7015 burning insured property 7009 burning building not subject of arson 7156 carrying into prison aids to escape 6457 changing ballots or returns 6359 child stealing 6800 compounding offenses ? • • • 6518 convict escaping territorial prison 6452 counterfeiting coin, bullion, etc 7037 crime against nature 6810 deserting child 6783 destroying records by person not officer 6465 destroying jails 7161 destroying records by officers 6464 disclosing contents of telegraphic message 7167 dueling 6712 GENERAL INDEX. 971 FELONIES, WHAT ARE— Continued.' embezzlement defined 7065 embezzlement of accounts and falsifying them 6975 refusal to pay over money collected for another 6528 extortion in certain cases 7080 falsifying jury list 6468 forgery generally, uttering notes, etc 7028 forgery of public and corporate seal 7030 forgery of records and returns 7029 forgery of telegraphic messages 7032 forgery of notes, bills, etc. , and uttering 7034 forgery of election returns 6361 frauds in presenting bills to officers for payment 6385 frauds in organizing corporations 7115 giving bribes to members of legislature 6412 giving bribes to judges, jurors, referees, etc 6430 giving bribes to common council, commissioners, etc 6528 grand larceny 7048 having fraudulent blank license receipts 6981 house breaking 7014 illegal voting 6356 incest 6809 improper attempt to influence jurors 6433 issuing and circulating paper money 7209 injuring dams, levees, aqueducts, etc 7162 injuring written instruments 7165 injuring highways, private ways, etc 7133 injuring railroads and railroad bridges 7132 judicial officer, juror, etc., receiving bribe 6431 kidnapping 6584 larceny, grand 7048 larceny out of territory of property received in 7058 larceny records by officers 6464 making false entries in records or returns 7029 making fictitious bills 7034 making counterfeit dies or plates 7038 manslaughter 6565 married person selling land by misrepresentation 7098 marrying under false personation 7090 mayhem 6577 misconduct of jurors, referees, etc 6434 murder 6560 neglect to pay over money by officer 6976 offering bribe to witness 6504 offering forged or false instrument for record 6466 offering false evidence 6500 officer refusing to surrender books, etc 6389 officer suffering escapes 6455 officer receiving bribes 6431 officer neglecting to pay over money 6976 officer buying scrip or being interested in contracts 6384 perjury 6478 perjury, subornation of 6487 possessing counterfeit bullion 7037 possessing forged notes 7033 preparing false evidence 6501 poisoning food, medicine, water, etc 6861 procuring execution of innocent person 6488 972 GENERAL INDEX. FELONIES, WHAT AUK— Continued. prizefighting 6957 railroad, placing freight in rear of passenger cars 6925 rape 6765 receiving bribe by witness 6505 rescuing prisoners 6446 robbery .* 6590 seduction . , . . 6770 selling land twice 7097 suffering mischievous animal to go at large, when 6931 telegraphic message, opening 7169 using gun powder in certain way 7157 violating election laws 6367 violating laws against dealing in scrip 6384 FEMALES, abduction of 6769 for purposes of prostitution 6770 under eighteen years of age, from parent 6771 defendant, under sentence of death, proceedings when sup- posed to be pregnant 8017 prisoners to be separated from males 8527 under eighteen, minors 2405 of sixteen may marry 2421 FEME COVERT. See Husband and Wife; Married Women. FEMININE GENDER, included in masculine 16 FENCES, general provisions 1300 description of kinds of 1301 erection of partition fences 1302 duty of owners 1303 disagreement viewers to decide 1305 liability of adjoining owners 1304 partition fence, when not to be removed 1306 fence on another's land 1307 owner of land not to remove 1308 survey of line 1309 when division fence may be removed 1310 gates 1311 FERRIES. Commissioners to grant authority to construct 1070 notice must be proved 1071 duty of commissioners 1072 license tax and rate of tolls 1073 report of owner or keeper 1074 inquiry of commissioners fixing tolls 1075 when license to issue 1076 where joins two counties 1078 when commissioner disqualified, who to act 1079 within one mile of another 1080 lands, how acquired for 1081 rates of toll to be posted 1082 proceeds of license tax 1083 owners to keep banks in repair 1084 application for leave to erect 1105 duty of commissioners 1106 powers of commissioners 1107 penalties, disposition of 1108 where assessed 1444 license for 1643 GENEBAL INDEX. 973 FERRIES— Continued. one per cent of gross proceeds of toll roads, bridges and ferries to be paid to school fund 1124 owners of must make oath to amount 1125 apportioned among counties 1126 owner of, failing to pay per cent of gross proceeds 1126 exercising rights after notice of forfeiture for such failure. . . . 1127 keeping, without license 1128 failure to pay taxes, or keep in repair 1129 exclusive right for one mile on each side of 1130 damages sustained by the traveling public, a lien 1131 neglecting to pay toll for crossing 6922 FERRY CORPORATIONS. See Corporations. FICTITIOUS in pleading 4230 proceedings, when defendant indicted by 7680 FIGURES may be used in assessment book 1703 FILING, seals of officers 448 prepayment of fees 2137 of inventory of wife's separate property 2500 effect of such 2501 of articles of incorporation 2584 of articles prerequisite, to 2582 of articles, duty of territorial secretary 2584 affidavits of sale of delinquent stock 2631 FINES AND PENALTIES trespass on sidewalks 861 idleness and loss of time on highway labor 902 of road overseers failure to report 908 neglect to remove obstructions from highway 962 leaving gates open, and riding off road 966 obstructing or injuring highways 967 injuring mile stones and guide-posts 970 felling trees on highways 972 application of 975 avoiding tolls 1097 witness refusing to give testimony in certain case 1432 assessor failing to render statement 1455 tax collector not filing statement and paying over moneys .... 1521 county treasurers failing to make statements 1674 auditor failing to make certain report 1677 for violating revenue laws, how disposed of 1675 commissioners, malfeasance in office 1791 county treasurers neglecting to settle and report 1852 sheriff's failure to return process 1874 sheriff's failure to pay over moneys 1876 sheriff suffering escape 1877 sheriff suffering rescue 1878 attachment for not producing will 5300 disobeying mandate 4989 failing to produce will 5296 fines, for contempts 5164 fines, juror not appearing 3967 fines, usurpation of office 4618 practicing as attorney without a license 3996 FINE, duration of imprisonment until paid 7994 imprisonment for, when 8545 disposition of 625 imposed on corporation, how collected 8229 judgment to pay, constitutes a lien 7995 974 GENERAL INDEX. FINE— Continued. judgment to pay, how executed 8006 officer failing to pay over 6978 FIRE, prisoners may be removed in case of 8535 setting woods on 6921 FISH,, tackle, what lawful 7191 poisonous bait .;. . 7192 dams, nets, seines, fish-traps and explosives 7198 taking or destroying by certain means 7197 FIXTURES, real property 2825 what may be removed by tenant 2882 mortgage a lien upon 3355 larceny of 7056 FLAX SEED, pounds to bushel 1250 FLUME, injuring or destroying t 7162 taking water from or obstructing 7137 FOOD, adulterating 6918 disposing of tainted 6919 willfully poisoning 6861 oleomargarine, fraudulent sale of 6917 sale of famished animals 6920 FORCE. See Duress. marriage obtained through, voidable 2423 marriage obtained through, may be annulled 2450 FORCIBLE ENTRY, ETC. answer, verifying 5107 appeal 5109 appeal, stay of proceedings 5108 arrest, order for 5101 complaint 5100 complaint, amendment of 5105 complaint, verifying 5107 continuance in cases of 5105 damages, treble 5106 default, judgment by 5102 defendant, parties 5098 forcible detainer defined 5092 forcible entry defined 5091 holding over, tenants 5093 judgment by default 5102 judgment, generally 5105 jury trial of issues of fact 5103 justice's court, jurisdiction 5097 probate court, jurisdiction 5096 landlord and tenant, notices 5094 landlord and tenant, notice by landlord 5093 new trial 5109 parties generally 5099 practice, etc 5109 summons issuing returnable 5100 supreme court, jurisdiction in cases of 3817 trial, defendant's case 5104 trial, jury 5103 trial, plaintiff's case 5104 unlawful detainer defined ." 5093 verdict 5106 verification 5107 punishment of 6962 GENEBAL INDEX. 975 FORECLOSURE of redemption, by pledgee 3429 action, one only 4520 deceased mortgagor 5537 due, debt not all 4522 exclusive remedy 4520 execution on 4470 fixtures 4544 generally 4520 injunction 4544 installments, etc 4522 intervention 4111 lis pendens 4142 place of trial 4120 pleading, writings 4200 possession, mortgagee in 4523 receiver 4329 affidavit of payment of taxes 4524 several mortgages or debts 4522 surplus, after sale 4521 tender 4870 waste 4530 FOREIGN WILL, proceedings on 5315 FOREMAN OF GRAND JURY, appointment of 7616 indictment presented by 7669 may administer oath to witnesses 7633 oath of 7617 presentment must be signed by 7647 FORFEITURE FOR NEGLECT, ETC. by assessor, for neglect 1455 of fees by county officers 1674 of compensation of auditor for neglect 1677 for violating revenue laws 1705 by county treasurer for neglect 1852 conveyance in excess of title does not work 2930 contract for, of property subject to lien, void 3334 liability of sheriff 4487 on execution sale without notice 4483 place of trial for 4121 FORFEITURE OF BAIL, how ordered 8126 how disposed of 8128 to be enforced by action 8127 when and how discharged 8126 FORFEITURE OF OFFICE, by member of legislature convicted of crime g 6415 for asking or receiving bribes 6381 for conviction of crime 6436 for inhumanity to prisoners 6514 for receiving reward for appointment 6387 FORFEITURE OF PROPERTY, conviction of crime does not work 7243 FORGERY, evidence of experts on trial for 7868 making, passing, or uttering forged bills 7034 offering forged instruments for record 6466 offering forged instruments in evidence 6500 of election returns 6361 of trade marks 6862 of records, wills, notes, etc 7028 of public and corporate seals 7030 976 GENEKAL INDEX. FORGERY— Co ntinued. of telegraphic messages 7032 punishment of 7031 possessing or receiving forged notes, etc 7033 pleading in indictment for, in certain cases 7692 restoring canceled ticket, etc. , of railroad company 7040 FORMS of indorsement on legislative bill when received by governor 150 indorsement on vetoed bill 152 indorsement by secretary of territory where bill becomes law by lapse of time 154 oath of office 350 poll list 540 ballot 546 statement in blank to be furnished assessor 1430 assessment book 1452 affidavit of assessor in assessment-book 1453 want of, not to vitiate assessment 1704 affidavit of clerk of commissioners relative to equalization .... ] 484 affidavit of auditor in correcting assessment-book ..' 1503 of solemnizing marriage, no particular 2432 notice of assessment 2618 notice of delinquency 2620 notice of tenant at will to quit 2857 grant, simple 2920 certificate of acknowledgment 2958 certificate of acknowledgment by corporation 2959 certificate of acknowledgment by attorney in fact 2961 certificate of acknowledgment by married woman 2960 notice of dishonor 3493 of warrant of arrest 7519 of commitment 7570 of bench-warrant 7651 of indictment 7678 of undertaking on bail 8108 of subpoena 8149 of summons against corporations 8223 of coroner's warrant 8385 of search warrant 8396 FRANCHISE, property 2642 when deemed real property 1120 liable for debts 1121 may be attached and sold under execution 1122 purchaser must execute bond 1123 duties of purchaser of, on execution 2643 redemption ; 2646 place of sale under execution 2647 owner of franchise failing to pay one per cent of gross pro- ceeds into school fund 1126 exercising rights after notice of forfeiture for such failure. . . . 1127 keeping toll-road, bridge or ferry without license 1128 failure to pay taxes or keep in repair. 1129 right may be made exclusive for one mile on each side lldU damages sustained by the traveling public, a lien 1131 FRANCHISE BOOK, commissioners' 1744 FRANCHISE, ELECTIVE, crimes against 6354 See Elections. GENEEAL INDEX. 977 FRAUD. See Arrest and Bail. marriage contracted through, voidable 2423 in contracting marriage, ground for annulling 2450 in instrument, when makes void against purchaser 3015 where mutual, instrument void against purchaser, with notice 3016 in instrument, power to revoke, when deemed executed 3018 contract prevented from being put in writing by, enforced when 3225 misrepresentation by debtor as to value of pledge 3417 instrument, when void against creditors 3020 intent, question of fact 3022 consignee, etc., making false statement 7099 destroying insured property 7009 in concealing property by debtor 6519 in concealing property by defendant 6520 in keeping accounts of corporations 7120 in procuring organization of corporations 7115 in subscriptions of stock of corporations 7114 in publishing prospectus of corporation 7116 in corporate management 7114 selling land twice 7097 FRAUDS, STATUTE OF. See Evidence. FRAUDULENT CONCEALMENT of property by debtor 6519 of property by defendant 6520 FRAUDULENT CONVEYANCE, penalty for being party to ... . 7095 FRAUDULENT INSOLVENCIES, by corporations, etc 7114 FREEHOLD, malicious injury to 7158 FREIGHT-CAR does not include baggage, mail, or express 6925 placing in rear of passenger 6925 FUEL, for territorial officers, how paid 327 FUGITIVES FROM JUSTICE, duty of governor 180 arrest and commitment of 8418 admission of, to bail 8420 district attorney to be notified of arrest of 8421 duty of district attorney in regard to 8422 expense incurred in arrest of 8425 from a state, when to be delivered up 8426 from this territory 8425 magistrate to issue warrant, when 8417 no fee or reward for arresting, when 8426 proceedings against, to be transmitted 8424 rewards for apprehension of 8415 when must be discharged 8423 FUNDING county indebtedness 3602-3607 FUNDS, territorial library 226 school, special duties of controller 207 general 232 school, apportionment of 631 general road 874 amount to be raised for various 1410 FURNITURE, exempt from execution 4480 FUTURE, present tense includes 16 Estates, what 2850 vesting not prevented by power of appointment 2856 Interest, vested 2830 contingent 2831 two or more in alternative 2832 right of posthumous children in 2833 62 978 GENEBAL INDEX. FUTURE— Continued. Interest, pass, how 2834 mere possibility not transferable \ 2835 when defeated 2837 when not defeated 2838 contingent on death without issue, construction ' 2906 lien created on " 3331 GAMBLING prohibited, penalty for . .......... ' . 6850 permitting, in house owned or rented 6851 privilege of witness to 6352 GAME protecting 71g5 unlawful to kill for hides or horns 7186 unlawful to chase with dogs 7186 unlawful to ship out of territory 7186 quail and partridges or their eggs , 7187 pheasant, grouse and prairie chickens 7188 wild ducks and geese 7189 possession evidence of guilt 7190 tackle, what lawful 7191 poisonous bait 7192 dams, nets, seines, fish-traps and explosives 7193 violating laws for preservation of 7194 fines, disposition of 7195 GARDENS, toll-roads not to pass through 1030 GARNISHEE. See Attachment. generally 4309 GAS COMPANIES. See Corporations. may use highway 863 GAS-PIPES, injuring or obstructing 7171 GENDER, masculine includes feminine and neuter 16 GENERAL average. See Average. . fund. See Funds. GIFTS, counties, cities, and towns may take by 5750 in view of death, may be satisfied 5754 GLANDERS, animals having to be killed 6933 sale, or exposure for sale, of animals having 6932 GOATS, feloniously taking, grand larceny 7048 GOLD-DUST, execution, seized under, to be returned at current value 4477 GOOD-FAITH children of illegal marriage contracted in 2454 GOODS, retaking, from custody of officer 6447 GOOD-WILL, implied warranty in sale of 3249 GOVERNOR legislative bill received by, to be indorsed and dated 150 approval of bill by 151 veto by 152 veto, when house not in session 153 bills remaining with, unsigned three days 154 a civil executive officer 170 to appoint what officers 171 powers and duties of 180 to transmit list of appointments to legislature 181 to cause to be kept certain official records 182 persons acting as 183 postage and expressage of books and public documents 184 official acts, by whom attested ... 191 to appoint notaries public ... 285 may appoint commissioners of deeds 300 GENERAL INDEX. 979 GOVEBNOR— Continued. to reside at capital 325 to make nomination to council in writing 355 concurrence of council in nomination by 336 must commission what officers 337 resignation, how made ; . 430 resignations to be made to 430 to issue writ of election in case of vacancy in legislature 433 to fill certain vacancies 435 to issue proclamation of election 475 may count moneys in treasury : 242 duties of, in regard to death sentence 8010 may order out troops to aid in executing process 7402 may, in certain cases, declare county in insurrection 7406 may revoke such proclamation 7408 disobeying proclamation 7407 may grant commutations, reprieves, and pardons 8248 may offer reward for apprehension of fugitives 8415 GRACE, days of, not allowed 3526 GRAIN, burning stacks of 7156 injuries to growing 7159 GRAND JUROR, acting after challenge allowed 6527 disclosing fact of indictment having been found 6531 disclosing what transpired before grand jury 6532 oath of 7618 See Challenge; Jury. GRAND JURY, ballot-box 3950 when to be impaneled 3968 definition of 3937 drawing 3956 number 3969 panel, filling 3969 manner of filling for particular case 7614 panel code regulates proceedings 3970 appointment of foreman of 7616 interpreters before 7640 cause of challenge to panel 7608 cause of challenge to individual juror 7609 challenge, how taken and tried 7610 charge of court to 7619 decision upon challenge 7611 degree of evidence to warrant indictment 763G effect of allowing challenge to panel of 7612 effect of allowing challenge to individual juror 7613 evidence receivable before 7634 entitled to access to public prisons 7639 foreman of, may administer oath to witnesses 7633 indictment by, defined 7632 indictment by, must be by twelve members 7665 if indictment found, depositions to be returned 7666 jurors must declare their knowledge as to crimes 7637 juror not to be questioned for his conduct '. . . 7642 must inquire into cases of all persons under arrest 7638 may present accusation against public officer 7445 not bound to hear certain evidence 7635 objections to, can only be taken by challenge 7615 oath of foreman of 7617 oath of members of 7618 980 GENERAL INDEX. GRAND JURY— Continued. order for special 7622 order for special, how executed 7623 powers of 7630 presentment by, defined 7631 presentment by, must be by twelve members 7647 public prisons, entitled to access to 7639 presentment by, how made >. . . 7669 retirement and discharge of 7620 resubmission of charge to 7667 special 7621 special, how formed 7624 secrets of, to be kept 7641 to investigate charges against corporations 8227 who may challenge 7607 who may be present at sessions of 7640 when and from whom may ask advice 7640 proceedings regulated by penal code 7630 See Challenge; Grand Juror; Indictment; Jury. GRAND LARCENY defined 7048 See Larceny. GRANT. See Conveyances. GRATUITY. See Reivard. GREATER contains the less 2700 GREAT SEAL, custody 191 affixed to what 191 fees for affixing 196 what 449 GROUSE, destroying, when prohibited 7185 GROWING CROPS, subject to mortgage '. . 3385 injuries to 7159 ftpp Cron^ GUARANTY. See Surety. promise to answer for another, when not deemed 6010 GUARD of jail suffering prisoners to escape 6455 GUARDIAN AND WARD, how to be assessed. . . ' 1439 appointment of guardian by parent 5781 accounts of 5793 ad litem 4095 allowance to 5796 appraisements 5793 bond, action on 5824 bond, action on, limitation of 5825 bond, filing, in court 5824 bond, new, when required 5823 bond, sureties' qualifications 5829 debts, payment of 5788 debts, recovery of 5789 duties of 5673 expenses of 5796 embezzlement 5820 generally 5770 inventory 5793 limitation of actions for recovery of property 5826 lunatic, of, duties 5786 lunatic, of, powers 5786 lunatic, of, restoration to capacity 5787 maintenance, etc 5791 GENERAL INDEX. 981 GUARDIAN AND WARD— Continued. management of estate 5790 marriage 5822 minor, of 5770 minor, of, ad litem 4095 minor, bond 5777 minor, duties 5776 minor, education 5780 minor, father's rights 5774 minor, letters to be recorded 5779 minor, maintenance 5780 minor, mother's rights 5774 minor, nominating 5771 minor, order appointing, conditions in 5778 minor, orphan 5775 minor, parents' powers 5774 minor, powers 5776 non-resident of ... . 5813 non-resident of, appointment of 5813 non-resident of, bond . . . . • 5815 non-resident of, powers and duties 5814 non-resident of, property included 5816 non-resident of, property, removal of 5817 one, more than, may be appointed 5827 partition, assent to 5792 powers of 5782 removal 5821 resignation 5821 sale by 5812 sale, bond 5808 sale, costs 5806 sale, hearing 5805 sale, investment of moneys 5802 sale, maintenance for 5797 sale, notice of 5803 sale, order of 5807 sale, order of, in force one year 5810 sale, petition for 5801 sale, proceeds of 5799 sale, proceeds of, investment 5812 sale, proceedings generally 5809 sale, real estate 5798 sale, real estate, credit 5811 GUIDE-POSTS, penalties for injuries to 970 toll-road companies to erect 1035 GUIDE-BOARDS, injuring 7135 GUILT, reasonable doubt as to, ground for acquittal 7858 GUILTY, plea of 7755 plea, form of 7756 plea of, how altered or withdrawn 7757 GUNPOWDER keeping unlawfully 6915 using, in destroying or injuring buildings 7157 HABEAS CORPUS, no fees for service 2138 district court, jurisdiction 3830 supreme court, jurisdiction 3816 application for writ, how made 8341 bail on 8114 body must be produced, when 8348 982 GENERAL INDEX. HABEAS CORPUS— Continued. by whom writ issued and to whom returnable . 8342 concealing person entitled to benefit of 6878 disobedience of writ 8346 defect in form of return, when immaterial 8362 disposition of party pending proceedings 8361 damages for failure to grant or obey writ \ . 8372 defect in form of writ not ground of discharge 8355 for purposes of bail 8357 grounds of discharge in certain cases 8354 hearing on return of writ 8350 imprisonment after discharge on 8363 judge may take bail 8358 judge, when to remand prisoner 8359 proceedings on hearing. s 8351 person in illegal restraint may be committed to custody 8360 petition for writ 8341 return, what to contain 8347 refusal to issue or obey writ 6876 reconfining persons discharged upon writ of 6877 service of warrant 8369 who may prosecute writ 8340 writ, to contain what 8344 writ, by whom issued 8342 writ to be granted without delay 8343 writ, how served 8345 when hearing may proceed without body 8349 when court may discharge party 8352 when court may remand party 8353 warrant, by whom issued and when returnable 8370 warrant may issue in certain cases instead of writ 8364 warrant, return and hearing on 8367 warrant, party may be discharged or remanded 8368 where returnable 8371 warrant may include person charged with illegal detention . . 8365 warrant, how executed 8366 HABITUAL INTEMPERANCE ground for divorce 2457 to continue how long 2463 HALF-BLOOD kindred inherit equally with whole blood 5705 HANDWRITING, execution of instrument proved by, when .... 2967 HANGING, punishment of death inflicted by 8020 HAY, burning stack of 7156 ton of, to be full weight 7109 HEAD OF A FAMILY, husband is 2494 phrase defined 3059 HEALTH, COUNTY BOARD OF, commissioners to appoint phy- sician 1150 commissioners and physician to constitute 1150 may establish sanitary rules 1151 refusing to comply with rules, a misdemeanor 1151 duty of physician to report infectious diseases 1152 duty of, upon such report 1152 may quarantine any place 1153 may confine person having contagious disease 1153 expenses of, how paid 1154 HEIRS. See Estates of Deceased Persons. of minor, when and how to disaffirm contract 2407 of tenant for life, when take as purchaser 2855 inheritance by. See Succession. GENERAL INDEX. 98? HIDES. See Stock Raisers. of cattle to be kept how long 1196 HIGHWAYS. See Roads and Highways. HIRING, depositary for, when seller of personal property to act as 3252 HOG, feloniously taking, is grand larceny 7048 need not fence against 1340 may take up trespassing 1341 notice of taking up posted 1342 arbitration of damages ... 1343 damages a lien on 1343 sale and notice 1343 application of proceeds 1343 appeal-bond 1343 when owner fails to appear 1344 sale and disposal of proceeds ... 1344 when owner may claim proceeds 1344 HOLDER of negotiable instrument may make indorsement spe- cial, how 3474 presentment by 3484 to surrender on payment, when 3490 to give receipt, when 3490 to indemnify payor, when 3490 to give proof of loss, when 3490 notice of dishonor given by 3492 notice of dishonor, when 3498 notice of dishonor, by agent . 3499 what information excuses presentment 3503 of bill of exchange to treat it as dishonored, when 3533 may receive qualified acceptance, when 3534 not bound to receive acceptance for honor 3540 must receive payment for honor 3540 must give notice of dishonor, notwithstanding acceptance for honor 3542 for value, entitled to certain damages 3561 HOLIDAYS, denned 10 arbor day 1299 certain acts not to be done on 12 to be excluded in computing time 11 HOMESTEAD. See Estates of Deceased Persons; Foreclosure. denned 3035 from what property taken 3036 husband cannot select from separate property of wife 3037 exempt from execution, when 3038 debts from which not exempted 3039 conveyance of mortgages of, how executed 3040 how abandoned 3041 declaration of abandonment 3042 proceedings when exceeds exemption 3043 application for appraisers 3044 petition filed with clerk 3045 copy of petition served on claimant 3046 appointment of appraisers 3047 oath of appraisers 3048 duty of appraisers 3049 report of appraisers 3050 proceedings on report 3051 fees of appraisers 3056 when title perfected 3073 984 GENERAL INDEX. HOMESTEAD— Continued. tenure by which held 3073 of other than head of family 3085 proceeding to obtain by other than head of family 3086 who may acquire, and of what value " 3058 declaration, what to contain 3071 "head of family" defined \ 3059 declaration to be recorded 3072 HOMESTEAD CORPORATIONS. See Corporations. HOMICIDE, attempts to commit 6597 assaults to commit 6598 bare fear does not justify 6571 excusable 6568 justifiable 6570 justifiable and excusable not punishable > 6572 jurisdiction of indictment for murder in certain cases 7491 limitation of action for murder 7500 manslaughter defined 6565 murder defined 6560 murder, degrees of 6562 party injured must die within a year and a day 6567 punishment of manslaughter 6566 punishment of murder 6563 voluntary and involuntary manslaughter 6565 when burden of proof shifts at trial 7866 See Manslaughter j Murder. HORSES, altering brand of 6867 feloniously taking, is grand larceny 7048 having glanders, selling or exposing for sale 6932 HOUSE, keeping disorderly 6842 HOUSE-BREAKING. See Burglary. HOUSE OF ILL-FAME. See Ill-Fame. HUSBAND AND WIFE, willful neglect to provide for wife, ground for divorce 2461 security for alimony 2475 property to be resorted to for alimony 2476 when allowance may be withheld from wife 2477 legitimacy of issue, where divorce granted for adultery of wife 2479 mutual obligations of 2493 husband head of family 2494 separate property of wife 2495 management of wife's property 2498 conveyance or mortgage of same 2498 mismanagement, when trustee appointed 2499 separate property of husband 2496 common property of 2497 inventory of separate property of wife 2500 effect of recording inventory of separate property of 2501 earnings of wife living separate, separate property 2502 husband not liable for debts of wife contracted before mar- riage 2503 wife not liable for debts of husband 2504 property of wife liable for her own debts 2504 power of husband over common property 2505 husband not allowed estate by curtesy 2506 wife not allowed estate in dower 2506 when wife to support husband 2507 property rights of wife how governed 2508 GENERAL INDEX. 985 HUSBAND AND WIFE— Continued. marriage settlements of, how executed 2509 consent of wife necessary for husband to adopt child 2547 husband cannot select homestead from separate property of . 3037 wife must join in conveyance of homestead 3040 wife when head of family 3059 joint tenancy in husband 3073 consent of husband not necessary to wife's will 5726 inheritance between 5711 distribution of common property on death of wife 5712 distribution of common property on death of husband 5718 disposition of common property on death of husband 5713 homicide in defense of, justifiable 6570 may occupy same room in jail 8527 selling lands under false pretenses 7098 IDIOTS. See Insane Persons; Insanity; Persons of Unsound Mind. cannot commit crime 6330 IGNORANCE of fact, defense for crime committed under 6330 ILLEGAL VOTING declared a felony 6356 ILLEGITIMACY, effect of subsequent marriage of parents 2535 consent of mother necessary to adoption of 2548 effect of adoption 2554 appointment of guardian for 5781 when takes by succession 5703 mother succeeds to property of intestate 5704 ILL-FAME, admitting minor to house of 6772 ILLNESS of juror as ground for discharge of jury 7882 IMPEACHMENTS, articles of, how prepared 7426 articles of, to whom delivered 7427 certain officers liable to 7425 defendant may answer or demur to articles of 7431 effect of judgment of suspension from office 7438 if demurrer overruled, defendant must answer 7432 judgment on conviction, how pronounced 7436 must be tried by council 7426 nature of judgment 7437 not a bar to indictment 7440 officer on trial disqualified until acquitted 7439 proceedings on failure to appear . 7430 power of governor to grant reprieves 8248 right of, preserved 6304 service on defendant 7429 council must be sworn on trial of 7488 time of hearing 7428 two thirds necessary to conviction ' 7434 vacancy occurring by, how filled 7439 IMPEACHMENT OF WITNESS, how accomplished 8141 See Evidence. IMPERSONATION, false. See False Personation. IMPLEMENTS, possession of burglarious. 7022 IMPLIED BIAS, causes of challenge for 7834 See Challenae. IMPRISONMENT. ' See Arrest and Bail. for contempt of court \.i 5165 for disobeying mandate 4989 limitation, statute of, how affected by 4070 D8G GENERAL INDEX. 1 MPRISONMENT— Continued. of judgment debtor 4505 before conviction unnecessary restraint 7357 civil rights suspended during . . 7239 civil death from 7240 convict protected during 7242 duty of sheriff on receiving copy of judgment of 8008 duration on judgment to pay fine 7994 imprisonment for fine 7232 forfeiture resulting from 7243 prisoner not incompetent as witness 7241 prisoner competent to convey property 7241 second term of, when commences 7237 term of, on certain judgment, when to commence 7994 IMPROVEMENTS defined 1405 tax of, on what, of lien 1414 eminent domain in 5220 set-off, value of , as 4541 public, injuring 7170 INCAPACITY, to contract 2411 to consent ground for nullity of marriage 2450 physical ground for annulling marriage 2450 INCEST defined 2424 jurisdiction of indictment for , 7487 punishment of 6809 INCORPORATION. See Corporations. INCREASE. See Accession. of propert v pledged is pledged 3412 INCUMBRANCER, grant how far conclusive as to 2929 incumbrance defined 2936 instruments, when void against 3015 instruments, when not void against 3016 grant as revocation in favor of, when 3017 incumbrance imposed on devised property 5739 when personal mortgage void against subsequent 3386 lien of seller or buyer not valid against subsequent 3442 certain transfers void against 3021 INDEBTEDNESS, county— funding of 3602-3607 INDECENT articles to be seized 6841 exposure of person, exhibition of pictures, etc 6840 INDEMNITY, notice by sheriff to sureties of action brought against him 4933 INDEPENDENT SCHOOL DISTRICTS— formation of 729-736 INDEX, recorder to keep certain 2025 INDIANS, selling liquor to 6929 selling fire-arms and ammunition to 6930 INDICTABLE NEGLIGENCE. See Negligence. INDICTMENT, repeal of act, when no bar to 159 district attorney to draw 2052 appellate jurisdiction in cases of 3817 allegation in, as to person injured 7683 against several 7696 accessory treated as principal ... 7697 against corporations 8228 conspiracy to procure false and malicious 6540 construction of words used in ' . . 7684 crimes must be prosecuted by indictment 7351 disclosing fact of, having been found by juror, etc 6531 GENEEAL INDEX. 987 INDICTMENT— Continued. defined 7632 degree of evidence to warrant 7636 effect of dismissal of 7667 effect of order for resubmission of charge 7733 first pleading by the people 7676 former conviction or acquittal, bar to 7494 former conviction or acquittal in another county 7495 found after challenge to panel, allowed 7612 form of 7678 how presented and filed 7669 impeachment not to bar 7440 in what court found 7602 if not found, depositions to be returned to court 7666 if for felony, defendant committed to custody 7719 jurisdiction of, for kidnapping, abduction, etc 7486 jurisdiction of, for bigamy or incest 7487 jurisdiction of, when property stolen in one county and taken to another 7488 jurisdiction of, for escaping from prison . . . 7489 jurisdiction of, stealing property out of and bringing into ter- ritory 7490 jurisdiction of, for murder, where party in this territory 7491 jurisdiction of, against accessory : 7492 must be found by jurors, indorsed, etc 7665 must be direct and certain 7679 must charge what 7681 motion to set aside, when heard 7732 motion to set aside, denied or granted, what proceedings had 7732 must be read when 7855 names of witnesses to be placed at foot of 7668 number of grand jurors to be present at finding of 7665 objections to, waived when 7731 proceedings on, when defendant is not in custody 7670 pleading in, for libel 7691 pleading in, for forgery 7692 pleading in, for perjury 7693 pleading in, for larceny or embezzlement 7694 pleading in, for selling obscene books, etc 7695 principal and accessory 7697 refusing to answer 7763 time of committing offense need not be stated 7682 when considered found 7504 what prosecutions must be by 7600 what to contain 7677 when bound by fictitious name 7680 when sufficient 7686 when not insufficient 7687 what need not be stated in 7688 when set aside on motion 7730 when order to set aside, no bar to further prosecution 7734 See Demurrer ; Grand Jury, Plea; Venue. INDORSEMENT, on legislative bills 150 vetoed bill 152 legislative bill, by secretary of territory 154 warrants not paid for want of funds 1844 marriage certificate 2434 necessary to transfer shares of stock 2611 of check, rights of indorsee 3591 988 GENEKAL INDEX. INDORSEMENT— Continued. Of negotiable instrument how made 3469 on separate paper, when 3470 general, defined 3472 special, defined 3473 general, how made special > 3474 special, how may destroy negotiability 3475 implied warranty of 3476 without recourse 3477 gives privity to contract 3479 for accommodation, rights of party making 3480 without consideration binding, when 3481 in due course, rights conferred by 3482 notice of dishonor, how served after death of indorser 3495 of bill of exchange, when indorser exonerated by delay of presentment 3531 of commitment on warrant of arrest 7570 of commitment, when offense not bailable 7580 of magistrate, when defendent held to answer 7579 of magistrate, when defendant discharged 7578 on indictment 7665 on order for admission to bail 7716 INFANT. See Minors. guardianship of. See Guardian. limitations, effect on, of infancy 4070 probate, contest, time to 5324 security required for appearance as witness 7586 INFORMAL VERDICT. See Verdict. INFORMER of threatened offense 7381 of committed offense 7516 INHERITANCE, words of, not necessary to pass fee 2905 from decedents. See Succession. INITIALS, in describing land on assessment book 1703 INJUNCTION answer, after, only on notice 4290 corporation, suspending business of , by 4293 against territorial officer — 4294 shall not be granted except by district court 4291 court or judge may grant 4287 definition of 4287 dissolving 4295 execution, after, waste 4544 foreclosure, during, waste 4544 generally 4287 holidays, writ may be served on 4288 judge may grant 4287 limitation not to run when action stayed by 4074 order for, when made 4288 order to show cause 4292 restraining order 4292 sunday, writ may be served on 4288 undertaking, justification, etc 4291 vacating 4296 witnesses to be produced at hearing of motion 4297 waste during foreclosure or after execution 4544 INJURY, child, to, father, mother, or guardian may sue 4099 death, causing 4100 joinder, of claims for 4169 INJURIES, who may sue for, to real property 2880 extortion by threat to commit 7081 GENERAL INDEX. 989 INN-KEEPER, lien on goods 1160 INNOCENCE, procuring execution of innocent persons by perjury 6488 presumed until contrary is shown 7858 INQUEST, jury of 3940 impanelling jury of 8377 jury of, defined 8377 INQUISITION, duty of district attorney upon 8014 into cause of death, by coroner 8377 to be held in certain cases after judgment of death passed 8013 INSANE ASYLUM, officers, when to report 160 directors of 170 location and control of 750 powers and duties of directors 752 moneys for support, how drawn 753 directors to contract for supplies 754 compensation of directors 755 directors nominated by governor 751 term of office 751 oath of office 751 officers of board 751 to make by-laws 752 meetings of board 752 record of proceedings 752 to take and hold property in trust 752 board to appoint and remove all officers and employes of asylum 752 to visit asylum quarterly 752 to cause accounts to be kept how 752 to audit expenditures and certify same to controller 752 directors to report to governor 752 bill how examined, etc 753 advertisement for bids for supplies 754 no more than market price to be paid 754 bidder to give security 754 no officer to be pecuniarily interested in contract 754 medical superintendent 756 qualifications of 756 term of office 752 powers and duties 758 must estimate expenses 759 salary of 760 bond of 761 salaries how paid 762 approval of bonds, etc 763 residence of physician 757 discharge of patients 764 insane convicts 765 restrictions upon admission of non-residents 767 person having contagious or infectious disease not admitted. . 766 disposition of moneys unexpended on death or discharge 768 examination for admission 769 number of witnesses 770 physicians to appear and testify 771 duty of witnesses 772 certificates of physicians 774 certificates on forms 775 commitment 776 commitment, action of judge 776 990 GENEKAL INDEX. INSANE ASYLUM— Continued. sheriff to deliver persons to 777 money found on insane persons 778 certain insane not admitted to 779 fees of sheriff 780 fees of physicians 781 proceedings when insane is able to pay 782 guardian for ■ 782 duties of guardian 782 to give bond to directors 782 commitment of insane prisoner to 8197 expense of such, how paid 8200 INSANE CONVICT, must remain in asylum till sane 8199 INSANE PERSONS. See Guardians. summons, how served on 4144 witnesses, cannot be j 5957 cruel treatment of 6875 cannot be tried, sentenced, or punished 8194 mileage, etc 8200 governor must appoint a day to execute restored prisoner 8016 incapable of committing crimes 6380 proceedings on judgment against 8013 INSANITY, children of marriages annulled for 2452 alienation of homestead, in cases of 3059 expense of sending defendant to asylum 8200 grand juror, challenge to, on ground of 7609 instructions to jury on 8196 inquisition, how certified and filed 8015 if defendant committed to asylum, bail exonerated 8198 of defendant may be shown in arrest of judgment 7990 of defendant, when claimed, how determined 8195 proceedings after verdict of acquittal on ground of 7934 proceedings, on finding of, by jury of inquisition 8018 verdict and proceedings on trial of question of 8197 verdict of acquittal on ground of 7919 INSOLVENCY. of special partnership 3281 of special partnership, preferential assignment forbidden 3286 generally 5875 jurisdiction, district court of 8830 jurisdiction, supreme court of 3817 action, right of, when not waived 5912 accounts to be kept by assignee 5892 accounts to be filed 5901 accounts audited . 5901 adjudication, death of debtor after 5904 adjudication, effect of 5925 affidavit of assignee to account 5901 agent, creditor represented by 5923 answer to opposition to discharge 5916 appeals, when allowed 5931 appeals from judgment, contempt 5928 assignee, how elected 5882 assignee, where to reside 5882 assignee, to file bond 5882 assignee, court to appoint 5900 assignee, to recover all estate 5889 assignee to prosecute actions 5885 GENEEAL INDEX. 991 INSOLVENCY— Continued, assignee may resign 5887 assignee, appointment revoked .... 5887 assignee, liability of *. . . 5887 assignee, powers and authority of 5887 assignee to convert estate into money 5892 assignee to keep accounts 5892 assignee allowed expenses 5894 assignee to file and verify accounts 5896 assignee neglecting to file accounts 5900 assignee to deliver estate to successor 5900 assignee, discharge of 5901 assignment, clerk to make 5884 assignment, operation of 5884 assignment, copy of as evidence 5886 assignment to be recorded 5886 assignments not in accordance with this title void 5932 attachments 5888 attachments, when dissolved 5884 attorney, creditor represented by .' 5923 auction, sales at 5888 bar to suits, discharge is 5919 bail, liability f or 5898 bills, delivered up . 5889 bond of assignee '. 5882 bond of assignee on appeal 5931 bond of court to fix, when 5883 bonds, delivered up 5889 books, delivered up 5889 books, to be kept 5915 certificate of discharge 5917 civil actions, practice 5916 clerk to keep minutes of meeting of creditors 5882 claim, failure to prove 5899 claim, witness examined respecting 5913 composition with creditors 5888 concealment, bar to discharge 5918 . consent to dismissal 5930 contracts, liability on 5906 contempts, when allowed 5928 contempts, appeal in 5928 contesting accounts . . : 5901 contest of discharge 5919 contingent liabilities 5907 contractor, joint 5918 corporations, may apply 5903 corporations, not discharged ... 5903 corporations, included in "debtor" 5926 costs to be deposited, when 5881 costs in attachment suits 5929 costs to be recovered, when 5929 costs, how awarded 5929 costs, execution for 5929 court may examine debtor, or others 5913 counter-claim not allowed 59] o counter-claim, allowed . . , 5910 creditors ordered to meet 5880 creditors not allowed to sue 5912 D92 GENERAL INDEX. INSOLVENCY— Continued. creditors, who to share in dividend 5898 creditors, when not to sue " ■. . . . . 5912 creditors opposing discharge 5916 creditors, frauds against 5919 credits, mutual 5910 damages recovered by assignee 5890 death of debtor 5921 debts, what discharged 5919 debts, amount of necessary to apply 5876 debts, due creditors, stated . . 5877 debts, may be sold 5894 debts, what proved 5904 debts, falling due at stated periods 5909 debts, proved when mortgaged 5911 debts, if proved, no suit allowed 5912 debts, created by fraud 5918 debtor, examined on oath 5913 debtor, meaning of 5926 defalcations of officer 5918 demands, what may be proved 5905 depositions, how taken 5913 discharge, what debts from 5918 discharge, effect of 5919 discharge, debtor may be ' 5917 discharge of assignee 5901 discharge of partners 5902 discharge, if refused, creditors may sue 5912 discharge of debtor 5914 discharge when not granted 5914 discharge, form of 5917 discharge, opposition to, in writing 5916 discharge, fraudulent 5919 discharge, dividend 5919 discharge, refusal 5920 dismissal of proceedings 5930 distribution, partnership effects 5903 dividend declared 5898 dividend paid into court 5898 dividend not disturbed 5899 dividend, partner's estates 5902 dividend, contingent liabilities 5907 dividend, in certain cases 5918 effects, wrongly disposed of 5891 embezzlement 5918 estate to be described - 587S estate, interests in 5891 examination of persons 5891 exceptions to accounts 5901 execution, property exempt from 5878 execution, stayed 5912 execution, for costs . 5929 exempt property, schedule to contain 5878 exempt property set apart 5924 evidence may be taken 5913 fee of clerk 5881 . fee of assignee 5895 filing petition, act of insolvency 5876 GENERAL INDEX. 993 INSOLVENCY— Continued. fiduciary capacity, debts created in 5913 fraud, bar to discharge 59X5 fraud discovered after discharge 5919 guarantor, liability as 5393 homestead, described in petition 5373 homestead granted out of property 5924 indorser not discharged 5913 indorser, liability as . 5995 incumbrances, to be described in petition 5373 indebtedness, nature of, stated 5377 indebtedness, cause of, stated 5377 indebtedness, when contracted, stated 5377 interest, rebate of, 5904 insolvent may be discharged 5375 insolvent debtor, voluntary adjudged to be 5376 issues tried by jury 5916 inventory and schedule 5375 judgment \\ 5377 judgment, suits prosecuted to, when 5912 jury, trial by '. 5915 laborer's wages 5393 law of the territory, when applicable . 5927 lien . . . 5911 lien, when not effected 5912 limitation of time to set aside 5919 limitations, statute of, when not to run 5922 mail, notice by, to creditors 5331 meeting of creditors, order for 5880 money, estate converted into 5392 mortgages to be redeemed 5333 mortgages, proceeding when creditor has 5911 mutual credits 5910 notes, delivered up 5889 notice to creditors, on discharge 5914 notice to creditors 5880 notice to creditors, when not required 5914 notice of appeal 5931 oath before discharge 5915 oath to petition 5379 opposition to discharge of debtor 5915 order staying proceedings 5339 order staying proceedings, published 5881 order staying proceedings, served 5881 order staying proceedings, what to contain 5881 partners may petition 5902 partners, debts of, not discharged 5913 partnership included in "debtor" 5926 petition, voluntary, what to contain 5876 petition, adjudged insolvent debtor 5876 petition by partners : 5902 petition, effect of filing of 5925 perishable property, sale of 5393 Pledge 5911 pleading discharge 5919 pleading, verification of 5916 proceedings, stayed 5912 proceedings dismissed 5930 63 994 GENEBAL INDEX. INSOLVENCY— Continued. property not to be delivered to debtor 5880 property, debtor's clerk to assign 5884 property wrongly disposed of 5891 property not to be transferred 5880 publication of notice to creditors 5881 publication of notice of application for discharge 5914 receivers may be appointed ! . 5927 recovery of property by assignee 5888 redemptions 5911 refusal to discharge 5920 release to debtor of mortgaged property 5911 release to debtor by discharge 5919 rent, debtor liable for 5902 residence, application to be made at , 5876 residence of creditors stated, where 5877 residence of assignee 6882 sale of property, private 5892 sale of property, at auction 5892 sale of perishable property 5893 sale of property liable to deteriorate 5893 sale of property expensive to keep 5893 sale of mortgaged property 5911 schedule annexed to petition 5876 schedule, contents of , 5877 security, written 5888 securities delivered up 5889 set-offs . 5910 sheriff to take possession of estate 5880 stay of proceedings 5892 specifications on opposition to discharge 5916 securities on bond to justify 5882 sureties liable on appeal 5931 surety, liability as 5908 surety not discharged 5918 suits, barred 5919 transfer of property forbidden 5880 undertakings on appeal 5931 value of property, double, recovered 5890 valuation in schedule 5876 verified statement of claims 5882 verification of petition and schedule 5879 verification of accounts of assignee 5896 verification of pleadings 5916 void, other assignments are 5932 vouchers delivered up 5889 wages of laborers 5898 witness may be subpoenaed 5913 writing, specifications to be in 5916 words, singular and plural . . 5926 INSOLVENT BANK, officer of, receiving deposits in 7119 INSPECTION, generally 4202 real property, order for survey 4542 records, citizens have the right of 5965 refusal, effect of 4202 INSTRUCTIONS to jury, further 4390 generally 4384 holidays, etc., may be given on 3866 written, need not be excepted to 7946 See Charge. GENEEAL INDEX. 995 INSTRUMENTS, by married women, acknowledged, how 2922 when husband absent 2923 by attorney in fact, executed, how 2924 evidencing title declared by judgment, how proved for record 2991 what not to be recorded 2994 execution of, proof of, how made 2955 subsequent recording of prior, void as to subsequent 3101 unrecorded, valid as between parties with notice 3004 certain non-negotiable written, transferable 3600 in writing prim a facie import consideration 3222 burden of proof, showing want of consideration 3223 distinction between sealed and unsealed abolished 3227 destroying to prevent use of at trial 6502 injuring or destroying 7165 larceny of 7053 larceny of, completed, but not delivered 7055 offering forged, for record 6466 offering forged, in evidence 6500 use of false, upon trial, for purpose of deceit 6501 Fraudulent, when void against purchasers 3015 when not void against purchasers 3016 power to revoke when executed 3017 provisions concerning 3019 void against creditors, when 3020 avoided by judgment creditor only 3022 Unrecorded, valid as between parties and privies 3004 INSULT, to school teacher 7211 INSURANCE CORPORATIONS. See Corporations. foreign insurance corporations 2752-2759 INSURED PROPERTY, burning of, destroying 7009 INSURRECTION, governor may declare county in, when 7406 may revoke such proclamation, when 7408 disobeying proclamation 7407 INTEMPERANCE. See Drunkenness; Intoxication. habitual, ground for divorce 2457 as ground for divorce, to exist how long 2463 INTENT, how manifested 6315 how determined where defendant intoxicated 6316 must be united with act to constitute crime 6314 to commit murder, assault with 6598 to defraud, assignment made with 6519 INTEREST, on delinquent taxes 1573 on unpaid county warrants 1844 legal rate of . . 1263, 1264 compound interest not allowed 1265 interest upon interest over due 1265 usury, penalty for 1266 rate on protested foreign bill 3563 foreclosure, rebate on 4522 judgments on 4914 INTERESTED, judge, disqualified 3900 INTERESTS IN PROPERTY, future vested 2830 future contingent 2831 future contingent, may be alternative 2832 future right of posthumous children 2833 future, pass by transfer 2834 mere possibility of, not transferable 2835 future, how defeated 2837 future, when not defeated 2838 996 GENERAL INDEX. INTERPLEADER, generally 4109 INTERPRETATION of contracts. See Contracts. of conveyances. See Conveyances. of guaranty. See Guaranty. of negotiable instrument. See Negotiable Instrument. of obligations. See Obligations. of suretyship. See Surety. of wills. See Wills. of writings. See Writings. INTERPRETER, officer taking acknowledgment may employ. . . 2970 generally 5960 fees of 6141 INTERROGATORIES, on examination on commission to be set- tled and allowed 8182 See Evidence. INTERVENTION, generally 4111 INTERVENTION OF OFFICERS, in what cases 7375 persons assisting, justified 7376 INTESTACY disposition of property in case of 5701 succession, in case of. See Succession. INTIMIDATION of elector 6364 of jurors 6433 See Threats. INTOXICATION. See Intemperance. acts of physicians under 6860 no excuse for crime 6316 of conductor or engineer 6924 of train dispatcher or telegraph operator 6924 INTOXICATING LIQUORS. See Liquor. INVENTORY of separate property of wife 2500 effect of filing 2501 of property taken on search warrant 8404 to whom delivered 8405 IRREGULARITY, newtrialfor 4439 dismissal of appeal for 8056 when insufficient to vitiate 8236 See Error. IRRELEVANT MATTER, striking out 4208 IRRIGATION, right of land owners to 3180 right of way for ditch 3181 duty of owner to keep in repair 3181 petition for appointment of appraisers 3182 notice of hearing 3182 oath of appraisers 3183 assessment and report of appraisers 3183 rights of petitioners upon tender of damages assessed 3183 right of way from spring 3185 ditches, etc., kept in repair 3186 prior right to water, not impaired 3187 supply of water, insufficient 3188 order of right to use of 3 189 duty of owner to keep supply 3189 excessive use of 3190 Water districts, election of water master 3200 bond, duties and compensation 3200 water master of private ditch 3201 duties of 3202 repair of ditch, expense, etc 3203 headgates and dams 3204 .opening gates or diverting water 3205 GENEBAL INDEX. 997 ISSUE, construction of word 2906 ISSUE IN PLEADING, calendar placing on 4370 definition of 4365 definition of, justices' courts t 4711 fact of, raised, how 4367 fact of, raised how, justice's court 4713 fact of, tried, how 4369 fact of, tried how, justice's court 4715 jury, waiver of 4405 jury, waiver of, justice's court 4716 law of, judgment on ". 4409 law of, raised how 4366 law of, raised how, justice's court 4712 law of, tried how 4368 law of, tried how, justice's court 4714 special 4022 trial, bringing on 4371 trial, postponement of 4372 ISSUE OF FACT IN CRIMINAL CASES defined 7780 how tried 7781 in trial of challenge to juror 7821 on challenge to juror tried by the court 7838 on trial of challenge, juror may be witness 7841 ITEMS, pleaded, neednot be 4209 JAIL, destroying or injuring 7161 guard for 8538 See County Jail; Prison. JAILER, answering for safe-keeping of United States prisoners. . 8530 papers served on, for prisoner 8537 refusing to receive parties charged with crime 6510 suffering prisoners to escape 6455 to return list of prisoners 8544 See Keeper of Jail. JEOPARDY, once in, plea of 7755 plea of former, form of 7756 JOINDER. See Parties; Complaint. JOINT, drawees presentment to 3529 JOINT DEBTORS, contribution 4499 execution on judgment against 4499 judgment, proceedings against those not served after 4860 several, some only served 4147 JOINT DEFENDANTS, when to be tried separately 7860 JOINT RESOLUTIONS, take effect, when 156 JUDGES AND JUDICIAL OFFICERS. Generally. may solemnize marriage 2431 may take acknowledgments 2951 proceedings before, for adoption of child 2550 duty in such case 2551 application for appraisement on execution against homestead 3043 duty on homestead petition ■ 3047 duty on return of appraisers 3059 appeal, undertaking on, power to B.x amount of 4810 appeal, undertaking on, power to take justification 4816 arrest, order for, by 4242 attachment, releasing 4319 attorney must not act as 3903 attorney must not have partner 3903 998 . GENEEAL INDEX. JUDGES AND JUDICIAL OFFICERS— Continued. chambers, power at, district 3910 court, holding in another county 3886 commission to take evidence without territory, power to issue . . 6062 disqualified, when " 3900 execution, proceedings supplementary to, power in 4504 injunction, dissolving % . . 4295 injunction, granting 4291 inspection, power to order 4875 jury, to assist at drawing 3954 prisoners^, power to discharge 5075 residence, justices of the peace 3885 duties of probate judge 1835 liable to impeachment 7425 See Magistrates; Officers; Judicial. Of Justices' Courts. See Justices of the Peace. » Of Elections. See Elections. JUDGMENT, money of account, how stated in 1262 in action against assessor for neglect 1459 levy of tax has effect of 1412 annulling marriage 2454 instruments evidencing title declared by, acknowledged how . 2991 administrator, etc. , against 5474 amended complaint on, by default 4176 amendment 4229 appeal from 4807 appearance after, no personal service 4229 agreed case on 5U69 arrest, deposit on, to be applied to satisfy 4262 attachment, deposit on, to be applied to satisfy 4315 attorney, on accusation of 4014 book 4454 claim and delivery 4453 costs, included in 4914 confession, entering 5062 confession by 5060 counter-claim 4452 contempt for 5168 contested elections 5036 controversy without action on 5069 currency in 4453 death after verdict, effect of 4455 default, by, forcible entry 5102 default, by, generally 4360 definition of 4350 demurrer on 4409 dismissal of 4354 docket 4461 docket inspection 4459 docket, satisfaction, entry of 4461 docket, transcript for another county 4460 entry 4450 errors to be disregarded 4231 executors, etc., against 5474 fiduciary capacity, money received in 4453 five years, enforcing after 4474 forcible entry, etc 5102 foreclosure 4520 GENERAL INDEX. 999 JUDGMENT— Continued. further consideration, reserving for argument on, etc 4451 gold coin, etc 4453 inadvertence, relief 4229 interest included in 4914 joint debtors not served, proceedings to obtain judgment against 4860 justices', appeals from 4838 justices', confession on 4725 justices', compromise, on offer to 4731 justices', costs 4732 justices', demurrer on 4726 justices', dismissal on 4726 justices', docketing 4736 justices', excess, remitting 4730 justices', recording 4733 justices', verdict on 4727 lien, mechanic's 5136 lien, none, when death after verdict 5476 married woman 4093 mechanic's lien 5136 merits on, when to be 4355 money, specified kind of 4453 money had and received 4453 neglect, excusable, relief 4229 nonsuit of 4354 official bond, sureties against 4351 parties, for or against one or more of several 4351 partition 4574 pending action, plaintiff's right ceasing 4540 pleading 4211 receiver to carry into effect 4329 recitals in 4450 recording in another county 4460 relief cannot exceed that demanded, where no answer 4353 relief from 4229 relief to be granted by 4353 remittitur 3818 replevin 4453 roll, corporation, dissolution of 5191 roll, foreign, must contain statement of cause of action 5975 roll, generally 4456 roll, in criminal cases 7996 satisfaction 4461 satisfaction, attorney's power 3998 setting aside in equity 4229 set-off, when 4184 several parties, for or against some 4351 special proceeding 4956 specific, money, etc 4453 sureties' liability on, against sheriff 4933 surprise, relief 4229 use, money received to 4453 usurpation, for, of office 4617 against prosecutor for costs 8302 against defendant for costs 8441 appointing time for 7980 arraignment of defendant for 7989 1000 GENEKAL INDEX. JUDGMENT— Continued. arrest of, objection to jurisdiction may be taken in 7750 arrest of, in justice's court ,.*;.. 83( 6 authority for execution of 8005 court may inquire into facts in investigation 7992 civil death from 7240 conviction by, in justice's court, jury being waived v 7358 court may cause arrest of, without motion 7961 defendant in custody, how brought before court for 7983 defendant on bail, how brought before court for 7984 effect of arresting 7962 entry of 7996 execution of, stayed by certificate 8048 forfeiture by law 7243 for fine, how executed 8006 against defendant for costs 8441 for fine and imprisonment, how executed 8007 how pleaded 7689 imposing fine in justice's court 8310 in justice's court to be entered on minutes 8307 justice or constable purchasing 6435 may be modified, affirmed, or reversed on appeal 8072 motion in arrest of 7960 motion in arrest of, in justice's court 8306 nature of, on impeachment 7437 of acquittal in justice's court 8308 of suspension from office, effect of 7438 on impeachment, how pronounced 7435 on conviction of officer of accusations. 7456 on demurrer 7745 on special verdict 7923 on informal verdict 7928 of imprisonment, duty of sheriff 8008 of death warrant, execution on 8009 of death, duty of judge on passing 8010 of death, duty of governor on receiving copy of 8011 of death, when suspended 8012 of death, how executed 8020 of death, defendant supposed insane, inquiry had 8013 of death, in force, but not executed, proceedings 8019 of affirmance, on appeal to be executed 8075 of appellate court, how entered and remitted 8076 of imprisonment in justice's court 8309 on appeal 8070 on appeal, what may be reviewed 8071 on appeal, reversal, when discharges defendant 8074 on plea of guilty, court to determine degree 7981 presence of defendant for 7982 proceedings on inquisition, insanity of defendant 8014 suspension of rights by 7239 not to be pronounced if no cause shown 7991 to pay fine, duration of imprisonment 7994 to pay fine constitutes a lien 7995 when commenced to be executed 7238 what cause may be shown against pronouncing 7990 when female under death sentence supposed to be pregnant . 8017 when convict insane 80 1 8 when convict pregnant 8017 when to be rendered 8303 GENEEAL INDEX. 1001 JUDGMENT DEBTOR, proceedings against 4504 JUDGMENT ROLL. See Judgment. what must be entered on 7996 what constitutes 7996 JUDICIAL PROCEEDINGS, conspiracy to maintain 6540 exciting groundless 6521 JUDICIAL RECORD, as evidence 5974 authentication of 5974 denned 5973 See Evidence; Records. JUDICIAL SALE, pledgee may foreclose redemption by 3429 JURISDICTION acquired when 4149 confession of judgment 5060 demurrer for want of 4174 eminent domain 5215 includes all means necessary to carry into effect 3925 means to carry into effect 3925 name, change of * 5245 district courts 3830 supreme court 3816 transfer of cause 4127 waived, not, by not raising objection 4178 of indictment for fighting duel out of, when party dies in this territory 7482 of indictment for kidnapping 7486 of indictment for bigamy or incest 7487 of indictment, property taken from one county to another .... 7488 of indictment for escaping from prison 7489 of indictment for stealing property out of and bringing into territory 7490 of indictment for murder in certain cases 7491 of indictment against accessory 7492 of offenses committed in this territory 7480 of offenses commenced out of but completed in the territory . . 7481 of offenses committed on boundary of counties 7484 of offenses committed on vessel 7485 of appellate court, when ceases 8077 pleading 7689 proceedings, on removal of cause to another county 7874 when offense is committed partly in two counties 7483 when concurrent, autrefois convict or acquit, bar 7495 where court has not, may discharge jury 7872 where principals are not present at commission of crime 7493 JURORS, adding names to lists of 6467 challenge to, for cause 7831 challenge to, for bias 7833 giving bribes to 6430 improper attempts to influence 6433 misconduct of 6434 must declare knowledge of case in court 7879 may be permitted to separate 7880 oath of. ., 8291 permitting corrupt communication to be made 6434 receiving bribes 6431 when one becomes unable to act 7882 See Challenge; Grand Juror; Trial. 1002 GENERAL INDEX. JURY, firemen exempt 3944 lists of persons to serve , 3947 how selected 3948 jury may draw upon order of judge 3952 clerk to notify probate judge and sheriff 3953 sheriff and judge to witness drawing 3954 drawing, when adjourned >. 3955 shall proceed when 3956 disposition to be made of ballots 3958 clerk to furnish copies of jury lists 3959 admonition to, in separation 4387 agreement of 4394 ballot-box 3950 challenges 4379 challenges, grounds for i 4380 challenges, for cause, trial of 4381 charge to 4384 charge to, further 4390 deliberations of 4388 definition of , , 3935 discharge of 4392 discharge of, holidays 3866 drawing 3952 eminent domain 5220 excusing 3945 exemptions 3944, 8943 exemptions, affidavit 3946 failure to attend 3967 findings, special 4397 formation of 4378 grand, box 3950 grand, definition of 3937 grand, how often impaneled 3968 grand, number sixteen, etc S969 grand, reference to penal code 3970 holiday, verdict may be received and jury discharged, and instructions given on 4393 impaneling 3968 inquest 3940 instructions 4384 instructions further 4390 instructions, holidays, giving on 3866 irregularity 4439 justices' courts 3963 keeping together 4389 kinds of . . 3936 listed, how 3948 oath 4382 obedience, enforcing 3967 papers, may take when retiring 4388 polling 4394 probate contest 5309 qualifications necessary 3941 regular, serve one year 3951 separation of 4387 sickness 4391 summoning ' 3960 talesmen 3962 GENERAL INDEX. 1003 JURY — Continued. term, close of, effect 4393 trial, box 3950 trial, court not of record, calling 3973 trial, court of record, calling 3971 trial, court of record, impaneling 4378 trial, definition of , 3938 trial, number twelve 3939 verdict 4394 verdict, affidavit to impeach 4439 verdict, counter-claim 4398 verdict, correction of 4395 verdict, entry of 4400 verdict, generally 4396 verdict, informal, correcting 4395 verdict, sealed 4393 verdict, special 4396 verdict, specific property 4399 view by 4386 waiver of 4405 waiver of justices' courts 4716 witnesses, may be 5959 court may advise to jury to acquit, when 7877 charging 7886 charge to, on insanity 8196 court may adjourn in absence of 7907 court may direct to reconsider verdict 7928 disturbance before, contempt of court 6529 discretion of, to fix penalty for murder 6563 formation of, in justice's court 8289 if challenge to panel allowed, must be discharged 7825 issues of fact tried by 7781 may be discharged when court has no jurisdiction 7872 may decide in court or retire 7887 may take what papers with them 7902 may return to court for information 7903 may convict of lesser offense 7926 manner of taking verdict 8295 must be admonished at each adjournment 7881 number of, in cases of misdemeanor 7781 number of counsel who may argue to 7857 of inquisition to determine defendant's insanity 8014 proceedings, if discharged because court has no jurisdiction . . 7874 proceedings, if discharged in other cases 7876 polling 7930 room and accommodation for, after retirement 7900 room and accommodation when kept together 7901 return of 7915 separation, ground for new trial 7952 trial by, for removal of certain officers 7454 to determine law and fact in actions for libel 7834 to be discharged, if juror becomes unable to act 7904 to find degree of crime 7925 to determine pregnancy of female under sentence of death . . . 8017 verdict of, on question of insanity 8197 viewing premises by 7878 verdict as to some defendants where several charged 7927 when and how to view premises 7878 1004 GENERAL INDEX. JURY — Continued. when not to be discharged 7905 when discharged, no verdict being given 7906 when charge to be given to 7855 fees of jurors in district court 6136 how paid 6137 fees of jurors in probate and justice's courts * 6138 See Challenge; Grand Jury. JURY LISTS, adding names to 6467 falsifying 6468 JUSTICE, offenses against public 6510 JUSTICE OF THE PEACE, a precinct officer 3850 may act as coroner 2084 constable must attend courts of 2090 duties of, where prescribed » 2092 may solemnize marriage 2431 order meeting of corporations, when 2598 may take acknowledgment 2951 JUSTICES' COURTS, absence 4774 actions, how commenced 4650 adjournment, amendment for 4702 adjournment, consent by 4703 adjournment, jury for 4702 adjournment, testimony for 4704 adjournment, trial of 4705 adjournment, undertaking on 4704 allegations, amending 4674 allegations, counter claim 4671 allegations, answer 4670 allegations, form of 4666 allegations, requisite 4668 amendments, adjournment for 4702 amendments, costs on 4674 amendments, generally 4674 answer, amended pleading to 4675 answer, demurrer to 4672 answer, form of 4666 answer, oral, may be 4666 answer, waiver of summons 4652 appeal, facts on, no statement necessary 4840 appeal, judgment, from 4838 appeal, statement, on questions of law, alone 4839 appeal, statement, settlement of ! 4839 appeal, stay of proceedings 4843 appeal, transmission of case 4841 appeal, trial in district court 4844 appeal, undertaking on, etc 4842 appearance, attorney by 4653 appearance, default of 4717 appearance, hour for 4661 appearance, person in 4653 appearance, waives objection to jurisdiction 4639 appearance, waives summons ' 4652 arrest and bail, bail how given 4704 arrest and bail, generally 4685 arrest and bail, notice to plaintiff of arrest 4684 arrest and bail, order for arrest 4680 arrest and bail, undertaking on 4682 GENERAL INDEX. 1005 JUSTICES' COURTS— Continued. attachment, affidavit for 4303 arrest, where may be executed \ 453^ attachment, form of 4ggg attachment, generally 4ggg attachment, order for 4ggg attachment, undertaking on 4537 attachment, undertaking to release or prevent 4688 attorney, appearance by 4353 blank, must not be left in process except subpoenas 4772 challenges 471g claim and delivery 4g9Q code, civil procedure, provisions of, applicable to 4777 commencement of action 4g5Q complaint, commences action, filing 4559 complaint, demurrer to 4559 complaint, form of 4553 complaint, indorsement by court of date, etc 4651 complaint, where to be filed 4639 complaint, writing, annexing copy of 4720 complaint, written, must be 4668 compromise, offer to, effect 4731 confession of judgment, entry of 5063 constable, attorney may not act as 4653 constable, serving summons 4660 contempt, definition of 475O contempt, docketing, conviction of 4754 contempt, generally 4750 contempt, punishment 4753 costs included in judgment, when 4732 costs, prevailing party entitled to 4732 costs, security for, justice may require 4775 costs, taxation of 4732 counter-claim 4670 counter-claim, omission, to set up waives it 4671 default, judgment by 4696 demurrer, answer to 4672 demurrer, complaint to 4669 demurrer, proceedings on 4673 dismissal of action 4726 docket 4766 docket, contents 4759 docket, entries prima facie evidence 4760 docket, execution may be issued on docket of predecessor 4764 docket, index to 4761 docket, vacancy in office, how disposed of 4764 execution, blank in, renders void 4772 execution, form of 4742 execution, issue, may within five years '. . . . 4741 execution, predecessor, justice may issue on docket of 4764 execution, proceedings in 4744 execution, proceedings supplementary to 4745 execution, renewal of 4743 fees, security for 4775 garnishment *. 4690 generally 4639 guardian. See Guardian , 4654 inspection, order for 4719 1006 GENERAL INDEX. JUSTICES' COURTS— Continued. issues of law and fact , . . 4711 judgment, abstract of 4733 judgment, confession by 4725 judgment, costs to include 4732 judgment, default by 4695 judgment, dismissal of v 4726 judgment, docketing 4733 judgment, entry of 4727 judgment, form of ' 4729 judgment, lien 4736 judgment, non-suit of 4726 judgment, recalling 4730 judgment, recording 4736 judgment, remitting excess ? 4730 judgment, trial after 4727 jurisdiction 3850 jurisdiction, remitting excess to get ; 4730 jurisdiction, want of transfer to district court 4645 jury 3973 jury, adjournment on demand for 4702 jury, challenges 4718 jury, fact, issue of, tried by 4715 jury, impaneling 3974 jury, waiver of 4716 lien judgment 4736 moneys collected, justice must receive 4773 non-resident, jurisdiction 4639 non-suit 4726 offer to compromise 4731 place of trial 4639 place of trial, change of 4640 pleadings 4666 pleadings, form of 4666 pleadings, oral, may be, except complaint 4666 property, real, no jurisdiction as to title to 4645 publication, service by 4145 return of summons 4656 sickness 4774 stay of proceedings on appeal 4843 subpoena 4771 subpoena, blank, may issue 4772 successor of justice 4765 summons, alias 4657 summons, blank, avoids 4772 summons, date to be docketed 4759 summons, form of 4655 summons, issuing 4651 summons, service 4660 summons, return 4660 sureties, claim and delivery 4682 sureties, arrest and bail 4682 sureties, attachment 4687 tender 4731 title to real property, no jurisdiction 4645 transfer, arrest, in case of 4683 transfer, district court to 4640 transfer, generally 4126 GENEEAL INDEX. 10(37 JUSTICES' COURTS— Continued. transfer, justice biased or a witness 4639 transfer of cause 4126 trial, commence, when to 4701 trial, failure to appear at 4717 trial, fixing 4661 trial, postponement of 4705 undertaking, adjournment on 4705 undertaking, appeal on 4842 undertaking, arrest on 4682 undertaking, arrest, release from, on 4704 undertaking, attachment on 4687 undertaking, attachment, release from, on 4688 undertaking, claim and delivery 4682 undertaking, deposit instead, of 4778 venue 4644 venue, change of 4644 writing, genuineness admitted, when 4720 appeals from, when allowed 8320 appeals how taken, heard and determined 8321 change of venue, when granted 8285 challenges 8290 defendant to be present 8288 defendant may be admitted to bail 8312 entitling affidavits 8314 fines, disposition of 8311 grounds of motion in arrest of judgment 8306 issue, how tried 8284 if jury discharged, defendant may be retried 8298 new trial, in what court had 8325 judgment against prosecutor for costs 8302 judgment, when to be rendered 8303 judgment to be entered in the minutes 8307 judgment of acquittal or fine only, defendant to be discharged 8308 judgment of fine may direct imprisonment 8300 judgment of imprisonment, how executed 8309 judgment of imprisonment till fine paid, how executed 8310 jury may decide in court or retire; oath of officer 8294 jury when to be discharged without verdict 8297 jury trial, when to be demanded, formation of jury 8289 minutes, how kept 8282 new trial, grounds of 8305 oath of jurors 8291 proceedings commenced by complaint 8280 plea, and how put in 8283 proceedings on change of venue 8286 postponement of the trial 8287 subpoenas 8313 plea of guilty or conviction 8299 trial, how conducted 8292 to decide questions of law, but not to charge on matters of fact 8293 verdict of jury, how delivered and entered 8295 verdict when several defendants tried together 8296 warrant of arrest, when must issue 8281 when defendant may move for new trial, or in arrest of judg- ment 8304 1008 GENERAL INDEX. JUSTICE OF THE SUPREME COURT liable to impeachment. . . 7425 JUSTICE OF THE PEACE neglecting to pay over fine col- lected ..♦. 6978 purchasing judgment 6435 See Magistrates. JUSTIFIABLE HOMICIDE. See Homicide. JUSTIFICATION OF SURETIES, arrest and bail , . 4255 attachment 4320 claim and delivery 4275 generally 4934 mode of 4257 KEEPER OF JAIL. See County Jail; Jail; Jailers; Prison. answerable for safe keeping of United States prisoners 8530 in contiguous county to receive prisoners 8532 refusing to receive prisoners, accused 6510 suffering prisoners to escape 6455 KIDNAPPING defined 6584 jurisdiction of indictment for 7486 punishment of 6585 KILL. See Homicide. attempts to 6597 assault with intent to 6598 KINDRED of half-blood inherit equally 5705 KNOWINGLY defined 6301 LABOR, highway where performed 900 what to be performed 902 neglect to perform 903 excuse from, no exemption 904 prisoners may be required to 8541 rules and regulations therefor 8542 LAND need not be described twice on assessment book 1456 surveys of, by county surveyor 2067 is real property 2825 defined 2826 as real property. See Property forcible entry and detainer 6962 inclosures, opening 7158 married persons selling under false pretenses • 7098 selling twice 7097 unlawful re-entry upon 6963 LANDMARKS, injuring 7160 LAND AND BUILDING CORPORATIONS. See Corporations. LANDLORD AND TENANT. See Lease; Rent; Repair. tenant for life, heirs of, when taken as purchasers 2855 relation of, how terminated at will 2857 tenant at will, how required to quit 2857 when landlord may re-enter on property 2858 tenant may remove, what fixtures 2882 attornment by tenant, when unnecessary 2933 a dverse possession 4044 defendants may be joined as 4102 notice of proceedings to be given by tenant to landlords 4102 unlawful detainer 5093 tenant when guilty of embezzlement 7069 LAPSE OF TIME, divorce denied on showing what 2464 does not legalize nuisance 3630 as limitation. See Limitations. GENEBAL INDEX. 1Q09 LARCENY, assault with intent to commit grand 6703 buying or receiving stolen property 7057 committed out of, and property received in the territory 7058 defined 7045 distinguished from embezzlement 7045 distinguished from robbery and extortion 7045 degrees of 7047 dogs are property subject to 7052 grand defined 7048 jurisdiction, where property removed from county 7488 jurisdiction, when stolen property brought into territory 7490 of fixtures 7056 of logs and cordwood 7060 of lost property 7046 of passage tickets 7054 of records by officer 6464 of records by other than officer 6465 of water 7059 of written instruments 7053 petit, defined 7049 pleading in an indictment for 7694 punishment of grand 7050 punishment of petit 7051 written instruments completed, but not delivered 7055 LAUDANUM, administering with evil intent 6705 LAW, certain county officers not to practice 1827 the common, the rule of decision 18 conspiracy to obstruct execution of 6540 court to decide questions of 7883 in libel, jury to decide questions of 6740 LAWFUL RESISTANCE, by whom made 7368 extent of, allowed by party about to be injured 7369 extent of, allowed by other persons : 7370 LAW OF EVIDENCE, in civil also applicable to criminal cases, unless : 7864 See Evidence. LEASE. See Landlord and Tenant. remedies of lessor against lessee and assigns for breach 2876 remedies of lessee against assigns of lessor for breach 2877 for life, rent, how recovered 2878 tenant may remove what fixtures 2882 forgery of 7028 LEASEHOLD, execution, sale on, of lease of less than two years, absolute 4490 LEGACY. See Ademption; Wills. LEGISLATURE, consists of what 115 term of members 116 time and place of meeting 120 certificate of election 121 organization 122 what officers of, may administer oath 123 bills, how marked, labeled, and arranged at close of session . . 124 contesting elections for members 125 notice of contest 126 answer of notice 127 time for taking testimony 128 notice to take depositions, contents of notice 129 testimony may be taken at several places at same time 130 64 1010 GENEEAL INDEX. LEGISLATURE— Continued, deposition taken by consent and without notice 133 subpoenas, who may issue . . 131 , 132 witness refusing to testify 134 examination, before whom 135 examination reduced to writing • 136 officer may require production of papers f 137 per diem and mileage of witnesses 138 hearing may be adjourned from day to day 140 testimony to be forwarded to clerk of supreme court 141 clerk to transmit testimony to legislature 141 expense of contest, paid how 144 subpoenas by 146 may punish for contempt 147 compel attendance of witnesses , 148 bill received by governor must be endorsed 150 bill, approval of, by governor 151 bill returned without approval by governor 152 return of bill without approval of governor when house not in session 153 bill remaining with governor more than three days 154 certain resignations to be made to 430 resignations of, to whom made 430 vacancy in, how filled 433 vacancy occurring during recess 435 altering draught or bill of 6410 altering enrolled copy of bill of 6411 forfeiture of office by member of convicted of crime 6415 giving or offering bribes to members of 6412 lesser offense jury may convict of 7926 members of, receiving bribes 6418 refusing to attend or testify before committee of 6414 Council, number of members 115 term of office 116 organization 122 president and president pro tern, may administer oaths 123 duty of officers at close of session 124 right to seat may be contested 125 subpoena by president of 145 may commit for contempt 147 may compel attendance of witnesses 148 appointment of officers by consent of 171 form of nominations to, by governor 335 resolution of, concurring in nomination by governor 336 certain resignations to be made to 430 vacancy in, how filled 433 House of Representatives, number of members 115 term of office 116 organization 122 duties of officers of, at close of session 124 right to seat may be contested 125 may issue subpoenas 145 may commit for contempt 147 may compel attendance of witnesses 148 resignation of members, to whom made 430 vacancy in, how filled 433 Committee of council or house, members may administer oaths . 123 chairman of legislative, may issue subpoenas 145 GENEEAL INDEX. 1011 LEGITIMACY. See Illegitimacy. of children of annulled marriages 2452 LESSEE. See Lease. LESSOR. See Lease. LETTERS, opening or publishing sealed 7166 LEVEES, injuring or destroying 7162 LEWD exposures, pictures, etc 6840 cohabitation 6812 LIABILITIES of bond of notary public 294 assessor and sureties for negligence 1457 tax collector, for negligence 1521 LIBEL AND SLANDER, answer 4216 complaint 4215 mitigation of damages 4216 LIBEL, CRIMINAL, denned 6737 jury to determine law on trials for 7884 liability of editor, publisher, etc , . 6742 malice presumed 6739 offer to prevent publication of, for money 6745 pleading in indictment for 7691 publication of, defined 6741 punishment of 6738 remarks on report of judicial proceedings not privileged 6744 report of official proceedings privileged 6743 threatening to publish 6745 truth may be given in evidence 6740 LIBRARY OF TERRITORY. territorial secretary librarian 800 location of, where 800 fund, how expended 808 who may take books 802, 803 books taken by territorial officers 805 liability for injuries to 806 when kept open 810 clerks of supreme and district court to report to territorial treasurer names of all attorneys admitted 809 expenses, how audited and paid 812 bond of librarian 811 LICENSE. See Revenue. LICENSE TO PRACTICE, forfeiture of, by attorney 6525 LICENSE of foreign insurance companies 2758 LIEN, judgments on official bonds 423 levy of taxes as 1412 tax due on personal property, on real property 141 3 tax on real property, on what 1414 tax on improvements, on what 1414 of territory for taxes in purchaser at delinquent sale 1547 homestead liable for certain 3039 does not revoke prior will 5738 of mining partner 3303 of mining partner, purchaser of interest takes subject to 3306 defined 3325 general, defined 3327 special, defined 3328 right of holder of, in certain case 3329 contracts subject to law of 3330 created upon future interest : 3331 created as security for future obligation 3332 1012 GENEKAL INDEX. LIEN — Continued. cannot transfer title 3333 redemption cannot be restrained -...'.. 3334 does not imply personal obligation 3335 priority of mortgage over other 3336 redemption, who has right of 3337 redemption, when inferior lienor has right of 3338 by restoration of subject to owner 3339 of pledge defendant on possession 3411 holder may pledge subject to extent of lien 3413 of seller of real property 3440 of seller, how waived 3441 against whom, valid 3442 of seller of personal property 3443 of buyer of real property 3444 for services on personal property 3445 of manufacturer, repairer, etc. of personal property 3446 of factor 3447 of banker 3448 of mechanic 3449 judgment not 4455 judgment to pay fine a 7995 Mechanic's, action for debt may be concurrently maintained. . . 5138 action may be one for all 5137 actions, consolidating 5137 amount recoverable on • 5135 appeal 5139 costs 5137 duration, ninety days 5133 exemption from execution, materials 5129 filing 5130 generally 5139 grading, etc., for 5127 incumbrances postponed to 5129 land subject to 5128 new trials 5139 notice to owner of labor done 5127 parties to action 5137 payment of contract price 5127 practice, rules of 5139 priority 5136 notice by sub-contractors 5126 sub-contractors, who are 5134 recording 5130 separate parcels, claim on 5131 statement of demand 5130 LIFE, homicide in defense of 6570 LIFE ESTATE, disposition of, on owner's death 5674 setting off in partition 4578 LIGHTS, how paid 195 LIMITATIONS, how affected by codes 9 for divorce 2468 of successive estates for life 2852 absence from territory 4069 account, mutual, open, current 4058 acknowledgment in writing 4078 "action" meaning of, in this portion of code 4080 administrators 4071 GENERAL INDEX. 1013 LIMITATIONS— Continued. alien enemy • 4072 answer or ground of 4213 appeal, reversal on, effect 4073 assessment, stock sold for 4056 banks 4059 commencement of action 4068 constable, against 4055 contract, parol 4053 conversion 4054 coroner, against 4055 corporation, penalty or forfeiture 4077 credit, mutual 4058 criminals 4046 county against 4057 current account 4058 death, effect of 4071 death, negligence or act causing 4055 deceased person, claim against estate of 4071 deposits 4059 detinue 4054 directors of corporations, penalty or forfeiture 4077 disability .' 4046 disability, more than one 4076 disability must exist when right of action accrues 4075 effect of statute 4030 execution, time for issuing 4470 executors 4071 foreign country, reciprocity clause 4079 forfeiture, corporation 4077 within six years 4051 within five years 4052 within four years 4053 within three years 4054 within two years 405& within one year 4056 within six months 4057 fraud 4054 generally, where not otherwise specified 4060 guardian's bond, action on 5825 guardian, recovery of property sold by 5826 infants 4046 injunction, effect 4074 insanity 4070 instrument in writing 4052 instrument not in writing 4053 judgment, action on 4051 liability created by statute 4054 loan societies 4059 lunatics 4070 married women 4070 mesne profits 4051 mistake 4054 mutual account 4058 negligence, causing death 4055 new promise 4078 occupation , 4045 official, against 4056 1014 GENERAL INDEX. LIMITATIONS— Continued. open account . 4058 penalty, corporation 4077 personal actions 4050 plea of 4213 pleaded, if not waived 4178 presumption as to possession \ . 4039 prohibition by statute, injunction 4074 property, actions or defenses arising out of title to 4037 real property, adverse possession 4040 real property, adverse possession, landlord and tenant 4044 real property, adverse possession, under claim of title not written 4043 real property, constructive occupation 4041 real property, death, effect of 4045 real property, descent, right of possession not affected by 4045 real property, entry 4038 real property, landlord and tenant 4044 real property, possession, constructive 4041 real property, possession, when presumed 4039 seizin, within five years , 4036 redeem, suit to 4062 redemption, time of 4492 replevin 4054 representatives, actions by and against 5071 reversal on appeal, effect 4073 savings banks 4059 territory, absence from 4069 territory, against 4061 statute, liability created by 4054 stockholders, of corporation 4077 commissioners, against 4057 suspension of rights of action 4062 tax collector 4056 time in actions, not relating to real property 4050 trespass 4054 trover „ 4054 trust companies 4059 vacancy in administration, effect of 5471 will, contesting probate 5318 written instrument, action on 4052 LIMITATION IN CRIMINAL CASES, indictment, when to be found 7504 none for action of murder 7500 of action for all felonies other than murder 7501 of action for misdemeanor s 7502 LINEAL WARRANTIES abolished 2937 LIQUOR, license for retailing 1648 adulterating 6918 selling at camp meeting 6821 selling to Indians 6929 LIS PENDENS, generally 4142 partitions in 4563 LIST of taxable property, refusing to give 6979 LISTS, DELINQUENT. See Revenue. LIVERY STABLES, license of 1649 LOAN, counties not to 1734 of money, legal interest 1263. 1264 GENERAL INDEX. 1015 LOCOMOTIVE, omitting to ring bell of, at crossing 6923 LODGER, guilty of embezzlement, when 7069 LOG-ROLLING, punishment of 6413 LOGS, defacing marks on 6866 larceny of 7060 LOST PAPERS, supplying 4923 LOST WILL, proving . : 5325 LOST PROPERTY, larceny of 7046 LUMBER, defined 830 owner may reclaim floating 831 floating, when turned over to sheriff 832 floating, application of proceeds when sold 833 disposition of proceeds of sale 834 dam or boom must have sluiceway or lock 835 when boom, etc, public nuisance 836 passage to be made within thirty days notice 836 penalty for failure 836 defacing marks on 6866 larceny of 7060 LUNATICS. See Insane Persons; Insanity. guardian. See Guardian. limitations in reference to 4046 summons, how served on 4144 witness, cannot be 5957 MAGISTRATE defined 7510 probate judge to perform duties of 1835 may order arrest for offense committed in his presence 7542 must issue warrant of arrest, when 7518 must take certain depositions 7516 who are 7511 See Examination; Officers, Judicial. MAIL, process returnable by 1872 notice of dishonor by 3494 notice of dishonor sent by, when 3498 notice of dishonor excused when there is none 3502 MAIM. See Mayhem. MAINTENANCE AND CHAMPERTY, attorney buying de- mands in suit 6524 MAJORITY, power under joint authority 14 words giving joint authority gives such to 14 of members of mining partnership control business 3409 MAJORITY, AGE OF, what is 2405 MALES, under twenty-one, minors 2405 of eighteen and upwards capable of marrying 2421 MALICE defined 6301 kinds of, in cases of murder 6561 presumed in case of libel 6739 MALICIOUS INJURIES to mile-stones 7135 to public ways 7133 to railroad bridges 7132 to telegraph lines 7136 to toll-houses, etc 7134 MALICIOUS MISCHIEF, animals, poisoning 7152 animals, killing, etc 7153 burning buildings, etc 7156 defined 7150 specified 7151 to freehold 7158 to jails 7161 1016 GENERAL INDEX. MALICIOUS MISCHIEF— Continued. to landmarks 7160 to location notice or monument 7172 to levees, dams, bridges, etc 7162 to standing crops 7159 using gunpowder 7157 MALPRACTICE, by intoxicated physicians \ 6860 misconduct of attorney 6523 MANDAMUS, alternative 4979 alternative, return of answer 4981 answer, demurrer to 4983 appeal in cases of 5006 costs 4987 damages 4987 denned 5 4986 demurrer to answer 4982 disobedience, penalty 4989 generally 4977 hearing, any time, may be at 5000 hearing, where no answer 4986 issue, any time, may at > 5000 issue, when to 4978 issues from what courts 4977 jury trial, when 4932 new trial ' , 5006 peremptory 4980 service of 4988 supreme court, writ out of 3816 trial 4983 verdict to be transmitted to court 4985 MANIA. See Insanity. MANSLAUGHTER defined 6565 division of, into voluntary and involuntary 6565 party must die within a year and a day 6567 punishment of 6566 See Homicide; Murder. MARKS on goods sold, implied warranty of genuineness 3247 defacing on lumber, logs, etc 6866 land, defacing 7160 MARKS AND BRANDS, stock drover and grower defined . 1170 must use only one brand 1171 may put smaller brand on horns 1171 one brand for horses 1171 one mark for sheep 1171 one mark for hogs 1171 must be placed on conspicuous place 1171 purchaser of an entire brand may have it recorded 1172 record of brands 1173 stock growers must use no other 1174 stock kept up for use need not be branded 1174 ear-marks 1175 what mutilation of ear unlawful 1175 same brand or mark not to be recorded by more than one stock grower 1176 partnership brands 1177 defacing or altering 1178 changing or defacing 6879 prima facie evidence of ownership 1179 copy of record evidence 1179 GENERAL INDEX. 1017 MARKS AND BRANDS— Continued. Road brands, stock drover must use 1180 must separate other stock each day 1180 driving cattle from range ". 1181 same, a misdemeanor 6880 liability for 1182 a misdemeanor 6881 driving stock into lands in possession of another 1183 grazing herds on occupied lands 6882 Stock Inspector, commissioners to appoint, when 1184 duties and powers of 1184 compensation of 1184 commissioners may offer rewards 1184 penalty for violation of law 1185 same 6888 fraudulently using 1178 hides of slaughtered cattle to be kept 1196 using running branding iron 6868 slaughtering unbranded cattle 6871 changing or defacing 6879 auctioneer of live stock 6887 MARRIAGE, denned 2420 who capable of 2421 proof of, how made 2422 when voidable from incapacity 2423 when voidable from fraud or force 2423 incestuous 2424 between whites and negroes 2425 subsequent, when void 2426 promise, when neither party held by 2427 contracted without territory 2428 how solemnized 2429 by whom solemnized 2431 no particular form for solemnization 2432 substantial requisites for solemnization 2433 duty of persons solemnizing marriage 3430 certificate to each party 2436 neglect to file and record certificate 2437 fees 2438 validity of marriage 2439 certificate evidence 2440 registry of 2435 when annulled 2450 action to annul, when and by whom commenced 2451 children of annulled 2452 custody of children of annulled 2453 effect of judgment of nullity 2454 dissolution 2455 husband not liable for debts of wife contracted before 2503 effect of, upon will made previous 5735 abatement, none by ' 4108 administratrix, effect on authority of 5356 breach of promise, private sittings . . 3861 executrix 5343 limitations, affects how 4070 perpetuating evidence of 6117 absence of party for five successive years, effect of 6806 contracted fraudulently 7090 1018 GENEEAL INDEX. MARRIAGE— Continued. illegal marriage 7092 contraction and solemnization of incestuous • . ' 6873 incestuous , 6809 making false return or record of 6874 taking woman, with intent to compel her to marry 6769 to one already married \ 6808 MARRIAGE SETTLEMENTS, how executed 2509 acknowledged and recorded 2510 effect of recording or non-recording 2511 minor may make 2512 MARRIED WOMEN may become corporators, officers and mem- bers of certain corporations 2576 stock of, how transferred 2612 dividends payable to ! 2612 may hold stock in homestead corporations 2724 grant by, acknowledged how 2922 power of attorney acknowledged, how 2924 acknowledgment by, to instrument 2956 form of certificate of 2960 may dispose of separate property by will 5726 administratrix 5356 executrix 5343 party 4094 sole trader 5851 witness against husband 5958 security required of, for appearance as witness 7586 when incapable of committing crime 6330 MARSHAL, warrant of arrest directed to 7523 MASCULINE GENDER includes feminine and neuter 16 MASONIC FRATERNITY may hold what real estate 2763 MASTER AND SERVANT, homicide in defense of, by servant, justifiable .... 6570 MATERIAL ALLEGATIONS, defined. ... 4218 MATTER in avoidance controverted 4217 redundant, striking out 4208 MATURITY, apparent, defined 3485 of bill payable at sight 3487 of promissory note payable at sight 3488 MAYHEM, assault with intent to commit 6704 defined 6577 punishment of 6578 MEASURE OF DAMAGES. See Damages. MEASURES. See Weights and Measures; False Weights. MECHANICS' LIENS. See Lien. generally 5125 where regulated 3449 MEDICINE, regulating sale of 1-282-1297 who may practice 1298-1298*3 MEETING of corporation, director present presumed to have con- curred in proceedings 7124 of corporation, director not present deemed to have concurred when ... 7125 police, to preserve peace at public 7394 religious, disturbing 6820 MEETINGS, unlawful. See Unlawful Assembly. MENACE. See Threats. MERGED, civil and criminal remedies, not 3801 GENEBAL INDEX. 1019 MESNE PROFITS, set off against improvements 4541 METES AND BOUNDS, description of property by 4210 MILE-STONES, injury to 7135 MINER, what property exempt 4480 MINES, partnership in, denned 3300 partnership, how formed 3301 rights of partner in 3302 when partnership property 3304 partner may convey interest 3305 effect of purchasing partnership interest 3306 power of partner as agent 3308 majority of members to conduct business 3309 MINING CLAIMS, CUSTOMS, ETC., evidence 4547 probate sale of 5499 width of location 3100 marking on the ground, notice 3101 notice, what to contain 3102 recording notice 3103 deputy mining recorders 3103 affidavit of locator 3104 notice, how recorded, fee for 3105 deputy to transmit notices to recorder 3106 powers of deputies 3107 Placer Claims, location of 3120 on the ground 3121 notice, affidavit and record 3122 Easements, right of way to, mining claims 3130 for road, ditch or flume 3131 petition to district court for 3132 citation to show cause against 3133 hearing, commissioners to assess ,damages 3134 duty of commissioners 3135 report, when set aside 3136 tender of damages 3137 appeal from assessment of damages 3138 questions on appeal 3139 rights pending appeal 3140 costs of appeal 3141 costs and expenses, by whom paid 3142 MINING PARTNERSHIPS. See Partnerships. MINISTERIAL OFFICER. See Officer. provisions of statutes apply to, though not mentioned 6390 MINORS. See Guardian; Infant. who are 2405 when may disaffirm 2407 cannot disaffirm contract for necessaries 2408 cannot disaffirm certain obligations 2409 when capable of marriage 2421 capable of marriage may make marriage settlement 2512 when wages may be paid to 2533 stock of, may be represented at meeting of corporation 2600 stock in homestead corporations 2724 admitting or keeping in house of prostitution 6772 grand juror, challenge to, because 7609 under fourteen cannot be convicted of rape, when 6766 MINORITY, limitations, effect on 4070 MISCARRIAGE. See Abortion. MISCHIEVOUS animal, death from keeping or having 6931 1020 GENERAL INDEX. ! MISCONDUCT of juror, referee, etc 6434 of jury, ground for new trial - . . 4439 MISDEMEANOR, aiding in commission of 7233 certain contempts of court are also 6529 denned 6311 defendant need not be present at arraignment , 7711 limitation of action for 7502 person charged with, must be taken before whom 7525 punishment for 6313 MISDEMEANORS, list of, aiding or advising commission of suicide 6932 adulterating food, drugs, liquors, etc 6918 altering telegraph messages 7168 animals, poisoning 7152 assaults defined , 6727 assaults by officer under color of authority 6516 attempts to vote, not being qualified 6357 attempts to extort by verbal threats 7086 attorney defending certain cases 6525 attorney buying demands in suit 6524 refusal to pay over money collected for another 6523 burning or injuring rafts 7163 barratry, common 6521 battery defined 6729 betting on elections 6366 bridge or ferry, crossing without paying tolls 6922 burglarious tools, having 7022 buying appointment to office 6386 buying demands in suit, by attorney 6524 catching fish by poisonous substances. 7197 changing telegraphic messages 7168 child, omission to furnish necessaries to 6782 clandestinely learning contents of message 7207 compounding offenses 6518 consignee, etc., making false statement 7099 criminal contempts 6529 criminal conspiracy 6540 dead animals, putting in streets and rivers, etc 6914 deadly weapons, rudely exhibiting 6961 deadly weapons, having 7023 deer, killing 7185 defacing or removing landmarks 7160 destroying evidence 6502 director of corporation, misconduct of 7117 disclosing contents of telegraphic message 7167 disturbing religious meetings 6820 disturbing peace 6959 dog and cock fighting 6958 elections, attempt to vote not being qualified 6357 elections, betting on 6366 elections, intimidating, corrupting, etc., electors 6364 elections, judge of unfolding or marking ticket 6360 elections, procuring illegal voting 6358 elections, refusal by voter to be sworn ^ 6355 elections, refusal to answer questions by officers of 6355 escape from prison other than territorial 6454 evidence, destroying 6502 exposure, indecent, person, pictures, etc. 6840 exposure of persons having contagious disease 6927 GENEEAL INDEX. 102 L MISDEMEANORS— Continued. exposure, threatening by letter 7210 fighting duel, posting for not 6714 fire, setting, to woods, etc 6921 fish, catching out of season 7193 fish, catching by poison 7192, 7197 fish, catching by permanent contrivances 7193 forcible entry and detainer 6962 forcible entry, returning to retake 6963 frauds, by debtor concealing property 6519 frauds, by defendant in same 6520 frauds, by personation 7093 frauds, in conveyancing 7095 frauds, in obtaining money, false pretense 7096 frauds, in weights and measures , . . . . 7107 frauds in stock subscriptions 7114 frauds in using name in prospectus 7116 gambling defined, etc 6850 gambling permitted in house 6851 game laws, violating 7185 glanders, neglecting to kill animal having 6933 grand jurors, acting after challenge allowed 6527 grand jurors, disclosing transactions of 6532 grand jury, disclosing fact of indictment found 6531 gunpowder, keeping unlawfully 6915 illegal marriage 7092 imprisonment, false 6721 injuring gas and water pipes 7171 injuring levees, etc 7162 injuring mile-stones and guide-boards 7132 injuring standing crops 7159 injuring telegraph lines 7136 injuring toll-houses, etc 7134 injuring works of art 7170 intoxication, malpractice by physician from 6860 intoxication, engineer 6924 keeping disorderly house 6842 keeping pest house within certain limits 6913 larceny petit 7049 larceny of water 7059 legislature, witness refusing to testify before 6414 libel defined 6737 libel, threats to publish 6745 license, doing business without 6983 malicious injuries to freehold 7158 malicious mischief 7150 nuisance, maintaining 6912 oath, refusing to take, when offering to vote 6355 obstructing public highway 7138 running water on highway 7139 officer, concealing person from writ 6878 officer, cruel treatment of lunatics 6875 officer, delay in presenting arrest to magistrate 6512 officer, disclosing evidence before grand jury 6532 officer, disclosing fact of indictment found 6531 officer, exercising duties of, wrongfully 6388 officer, escape from 6454 1022 GENERAL INDEX. MISDEMEANORS— Continued. officer, extortion by executive officer, extortion in fees ' officer, failure to pay over fines officer, false representations to assessor officer, inhumanity to prisoners officer, making false certificate officer, making false return of same [[ officer, making unlawful arrest officer, misconduct of, corporation officer, neglect or violating duty by public administrator officer, neglecting to disperse rioters officer, neglecting to prevent duel officer of bank, insolvent, receiving deposit officer of savings bank overdrawing account officer, omission of duty by ■ officer, publishing f alse* report of condition of corporation officer, purchasing judgment officer, receiving excessive fees officer, reconfining person discharged officer, refusing inspection of books of corporation officer, refusing to arrest persons charged with crime officer, refusing to aid in making arrest officer, refusing to issue or obey a writ of habeas corpus officer, resisting officer, resisting public ' officer, retaking goods from custody of officer, solemnizing illegal marriage officer, who beats a person under color of authority oleomargarine omission to furnish child necessaries omissions to label drugs omissions of duties by officer omissions of legal obligations opening or publishing sealed letters opening telegraph messages penalty, when none, punishment is fixed poisoning animals postponing telegraphic messages procuring warrant of arrest maliciously putting dead animals in streets racing on highways .... railroads, engineer intoxicated railroads, neglecting to ring bell railroads, putting passenger cars in front of freight railroads, employes violating duties railroads, offenses upon and against 7212 remaining after being warned refusing to disperse on lawful command removal of mortgaged property rescuing prisoner from custody riot defined, etc riot, neglect of officer to disperse , rout defined, etc search warrants maliciously procured selling coal, hay, etc. , of short weight selling liquors at camp meetings selling opium for smoking 6383 7083 6978 6979 6514 6530 6874 6513 7117 6511 6956 6715 7119 7118 6534 7121 6435 6432 6877 7122 6510 6517 6876 6382 6515 6447 6873 6516 6917 6782 6916 6534 6534 7166 7169 6535 7152 7205 6533 6914 6928 6924 6923 6926 6921 -7214 6955 6960 7100 6446 6950 6956 6952 6533 7109 6821 6831 GENERAL INDEX. 1023 MISDEMEANORS— Continued. selling tainted food 6919 sending letter, threatening to expose 7210 ship, setting adrift 7163 Sunday, disturbing religious meetings on 6820 taking or obstructing water in flume, etc 7137 taxes, refusing to give tax collector name of employe 6982 taxes, illegally delivering receipts for poll 6980 tearing down fences, etc 7160 tearing down notices 7164 telegraph messages, altering 7168 telegraph information, using 7206 telegraph message, postponing out of turn 7205 telegraph message, clandestinely learning contents 7207 telegraph message, forging 7032 trade-marks, counterfeiting 6862 trade-marks, selling goods with counterfeit 6863 unlawful assembly 6953 using information fraudulently obtained from telegraph mes- sages 7206 vagrancy 7208, 7212 witness before legislature 6414 witness preventing attendance of 6503 MISFORTUNE, homicide committed by, excusable 6568 MISJOINDER. See Complaint; Parties. MISNOMER, not to invalidate tax sales 1574 MISREPRESENTATION. See False Pretenses. fraudulent, by debtor, as to value of pledge 3417 MISTAKE IN WILL, relief from 4229 MISTAKE OF FACT disproves criminal intent 6330 MOB. See Riot. MODIFICATION of award 5267 MONEY, counting of, in territorial treasury 242 found on person of insane 778 tax collector to pay over, when 1520 treasurer to receive county 1840 paid to treasurer of county 1840 when warrants presented and no, in treasury 1844 found on dead body, delivered to county treasurer 1854 county treasurer to keep public 1857 penalty for sheriff failing to pay over 1876 in county treasury, joint statement concerning 2010 specified kind of, in judgments 4453 conspiracy to obtain by false pretense 6540 using or circulating paper 7209 obtaining under false pretenses 7096 paid for trial of escaped convicts, to be refunded to county .... 6458 personal property includes 16 MONEY OF ACCOUNT defined 1260 amount, how stated in judgments 1262 MONTE. See Gambling. MONTH defined 16 MONUMENTS, coterminous owners bound to maintain 2886 MORALS, public conspiracy to commit acts injurious to 6540 MORTGAGE. See Foreclosure; Liens. recorder to furnish lists to board of equalization 1481 to be recorded 2024 index 2025 1024 GENEBAL INDEX. U MORTGAGE— Continued. homestead liable for 3039 husband and wife must acknowledge, of homestead 3040 of property not a revocation of will ; . . . 5739 how only created, renewed, or extended 3351 a special lien 3352 what deemed 3353 absolute transfer shown to be, when ' 3354 on what lien , 3355 title acquired subsequent to, inures to mortgagee 3356 power of attorney to execute, how made 3357 recording assignment 3353 recording assignment, when not notice 3359 assignment of debt secured by, carries security 3360 how discharged 3361 penalty for not acknowledging satisfaction 3364 affidavit of payment of taxes before satisfaction 3365 what subject to 3375 conveyance with mortgage under cover, how defeated 3376 of real property, how acknowledged, recorded, etc 3377 proceedings on foreclosure. See Foreclosure. fraudulent, by married person 7098 Of personal property, on what may be made. ... 3385 when void against creditors and incumbrancers 3386 where recorded 3387 removal of mortgaged property from county 3388 how attached at suit of creditor of mortgagor 3389 disposition of proceeds of sale 3389 foreclosure, how 3390 by notice and sale, affidavit 3391 service of affidavit 3392 notice of sale 3393 bill of sale to purchaser 3394 return of sale 3395 action to contest foreclosure 3396 removal of property from county 3397 time to record mortgage ... 3398 removal of mortgaged property 7100 MOTHER, illegitimate child cannot be adopted without consent of 2548 of illegitimate child succeeds to his property 5704 administration by 5351 death of child, may sue for 4099 injury of child, may sue for 4099 seduction, may sue for 4098 MOTIONS AND ORDERS, generally 4880 motion, notice of, generally 4882 motion, notice of, when to be given 4882 motion, what it is 4880 motion, where made 4881 deposition, to be used on hearing of motion 6061 motion, court may arrest judgment without 7961 motion for new trial, when made 7953 motion in arrest of judgment , 7960 motion in arrest of judgment in justice's court 8306 motion to set aside indictment 7730 motion to set aside indictment, objections waived when 7731 motion to set aside indictment, when heard 7732 motion to set aside indictment, order no bar to further prose- cution 7734 GENERAL INDEX. 1025 I MOTIONS AND ORDERS— Continued. order for payment of money, execution on 4884 order, service by telegraph 4895 order to show cause must be served 4882 order, what it is 4880 order, where may be made 4881 repeating motion prohibited 3920 special proceedings in 4956 transfer to another judge 4883 MULE, feloniously taking, grand larceny 7048 MURDER denned 6560 degrees of, defined 6562 no limitation for prosecution for 7500 punishment of 6563 when burden of proof shifts on trial for 7866 See Homicide; Manslaughter. MUTILATION of public records by officer 6464 of public records by other than officer . 6465 NAME, secretary of territory to keep register of changed 191 error in, not to invalidate sale for taxes 1574 of county 1732 of adopted child 2552 of corporations to be stated in articles 2579 error in articles of incorporation does not invalidate 2635 change of 5245 change of district court's jurisdiction 5245 change of, petition for 5246 change of, petition for service 5247 change of, petition for hearing 5248 complaint, must contain 4168 fictitious, may be used 4230 fictitious, true must be inserted when discovered 4230 summons to contain 4140 verdict, each juror's must be entered 4400 defacing or adding, to list of jurors 6466 indictments found by fictitious 7680 unauthorized use of, in prospectus of corporation 7116 NARCOTIC, administering with evil intent 6705 NECESSARIES. minors and persons of unsound mind cannot disaffirm con- tract for 2408 neglect of husband to provide, ground for divorce 2461 promise of adult child to pay for, furnished parent, valid 2531 furnished to child, when parent liable 2532 NE EXEAT abolished 4240 NEGLECT, injury or death action for 4099 NEGLIGENCE defined 6301 liability on assessor's bond for taxes lost by 1457 in paying moneys by tax collector, penalty 1521 willful, of husband, ground for divorce 2457 willful 2461 must continue how long to constitute ground for divorce 2463 of locomotive engineer at railroad crossing 6923 of person in charge of steam boiler 6908 of person in charge of railroad train 6909 of person labeling drugs, etc 6916 suffering mischievous animal to go at large 6931 65 1026 GENERAL INDEX. NEGOTIABLE INSTRUMENT. See Bills of Exchange; Notice; Promissory Notes. defined 3465 when payable to order ; . . . . 3465 when issued unindorsed 3466 when payable to fictitious person 3467 when and for what presumed to be made . 3468 Indorsement of, how to be made 3469 may be made on separate paper, when 3470 general, defined 3472 special, defined 3473 general, how made special 8474 special, how may destroy negotiability 3475 implied warranty 3476 without recourse, effect 3478 gives privity to contract 3479 without consideration, when binding 3480 in due course, defined 3481 in due course, of instrument in blank 3482 Presentment for payment, not necessary to charge principal. . . . 3483 how made 3484 apparent maturity of, defined 3485 surrender or proof of loss, may be required on payment . ." 3490 dishonor defined 3491 notice of dishonor, by whom given 3492 form of dishonor : 3493 how served after death of party notified 3495 notice of dishonor, how served 3494 given in ignorance of death, valid 3496 at what time given 3497 when to be mailed 3498 agent need only give principal 3499 time allowed party receiving to give 3500 takes effect in whose favor 3501 when excused 3502 presentment and notice of dishonor, when excused 3504 delay in, when excused 3505 how waived 3506 set-off 4186 NEUTER included in masculine 16 NEWLY DISCOVERED EVIDENCE, new trial for 4439 NEW MATTER, answer may contain 4183 answer in, deemed controverted 4217 NEW PROMISE, limitation, effect on 4078 NEW TRIAL affidavits, on motion 4441 against law, verdict 4439 chambers, motion may be heard at 4445 chance, jury resorting to, for 4439 damages, excessive 4439 damages, insufficient 4439 definition of 4438 excepted, adverse party deemed to have 4427 grounds for 4439 insufficient evidence, verdict on 4439 irregularity for 4439 minutes of court, motion on 4441 misconduct of jury, for 4439 motion, court may grant, of its own 4443 GENEEAL INDEX. 1027 NEW TRIAL— Continued. motion, hearing 4442 motion, mandamus in 4984 motion, notice of 4441 motion, notice of, waiver of 4441 motion, notice of, withdrawal of 4441 motion, papers required 4440 motion, prohibition in 4997 motion, record on 4443 newly discovered evidence for 4439 In criminal cases, application for, when made 7953 defined 7950 effect of 7951 grounds for, in justice's court 8305 to be ordered when verdict is defective 7924 when may be granted 7952 where to be had when ordered on appeal 8073 NEW YEAR'S DAY a holiday 10 NIGHT TIME defined 7003 NOLLE PROSEQUI abolished 8216 NON- JOINDER. See Parties. NON-JUDICIAL DAYS. See Holidatjs. NON-RESIDENT, insane, not admitted to asylum 767 stock of, how transferred 2613 NONSUIT generally 4354 NOTARY, deposition, may take 6067 oaths, etc., may administer 6127 NOTARIES PUBLIC. by whom appointed 285 oath and bond of 286 to be filed. 287 general duties of 289 restrictions as to residence 288 protests by 290 records of, on death or resignation 291 certified copies of records of predecessor 292 fees 293 certificate of bond, filing bond and oath of 294 liabilities on official bond 295 may take acknowledgment or proof in territory 2951 acknowledgment or proof out of United States 2953 acknowledgment or proof out of territory 2952 negotiable instrument presented to, when 3484 bill of exchange payable at office of, when 3524 bill presented to, when .- 3528 bill protested by, when 3553 protest, how made 3554 making protest, may give notice 3558 NOTE, PROMISSORY. See Promissory Note. NOTES, forgery of 7028 making or uttering fictitious 7034 making to circulate as money ... 7209 possessing or receiving forged 7033 NOT GUILTY, evidence admissible under plea of 7759 plea of 7755 plea of, form 7756 plea of, puts what in issue 7758 plea of, must be entered, when 7763 1028 GENEKAL INDEX. NOTICE. See Motions and Orders. of removal of territorial officers 432 of petition to construct bridge ; ' 951 to remove obstructions from highways 961 on bridges, and penalty for disregarding 973 of defect in toll road ] 055 of petition to construct toll bridge or ferry »... 1071 of petition to construct toll bridge 1090 of meeting of commissioners to equalize assessments 1454 tax collector to publish certain 1515 publication ] 516 of sale of property for delinquent taxes 1531 of sales of personal property for taxes .... 1562 amendment to delinquent list 1701 order fixing additional meetings of commissioners 1756 public, how promulgated 1784 of redemption of interest-bearing warrants 1846 defined 1870 certain, to be recorded 2024 filing inventory of wife's property as 2501 of meeting of corporations 2589 of directors and stockholders to be given by banks 2608 assessment of stock 2618 delinquent assessment 2620 to tenant at will to quit 2857 effect of such 2858 of intention to re-enter 2859 not necessary before action 2861 record of conveyance as 2976 record of instrument as 3000 unrecorded instrument valid as between parties with. 3004 instruments not avoided against purchaser with 3016 of appropriation of water 3160 of selection of place of delivery 3249 of dissolution of special partnership 3293 recording assignment of mortgage operates as 3359 to be given before sale of pledged property 3420 of sale of pledged property may be waived 3421 of dishonor to be given to indorser 3476 of dishonor, by whom given 3492 form 3493 how served 3494 how served after death of indorser, etc 3495 given in ignorance of death, valid 3496 at what time given 3497 when to be mailed 3498 of dishonor by agent, need only to be given to principal 3499 of dishonor by party charged with time allowed for 3500 of dishonor, inures to benefit of other parties 3501 of dishonor, when excused 3550 delay in, when excused 3505 may be waived 3506 acceptor for honor entitled to 3542 acceptance for honor does not excuse 3543 before abatement of nuisance, when neccessary 3642 heading, defective 4924 motions and orders 4884 service of 4895 GENEKAL INDEX. 1029 NOTICE— Continued. service of, by mail 4890 service of, on non-resident 4893 of appeal, how served 8045 of appeal, by publication 8046 of application for bail in certain cases 8106 of application for pardon 8251 publication of application for pardon 8252 removing or destroying posted 7164 destruction of location, or monument 7172 NUISANCE. See Abatement. action for 963 defined 3620 nothing authorized by statute deemed 3623 liability of successive owners 3624 abatement does not prejudice claim for damages 3625 generally 4529 jurisdiction, supreme court 3817 Public defined 3621 not legalized by lapse of time 3630 remedies against 3631 when private person may sue 3633 abated, by whom and how 3634 keeping pest-houses in certain limits 6913 maintaining public 6912 putting dead animals in streets, rivers, etc , 6914 unequal damage 6911 Private defined 3622 remedies against 3640 abated by whom and how 3641 only upon notice, when , 3642 NULLITY OF MARRIAGE, causes for 2450 action to obtain decree of 2451 effect of, on children 2452 effect of judgment 2454 NUMBER, use of words in singular, include plural 16 NUMERALS, use of 3924 NUNCUPATIVE WILLS, generally 5329 need not be in writing 5329 how executed 5330 requisites to make valid 5331 proof of 5329 OATH defined 16 to be taken by members of the legislature 122 what officers of legislature may administer ■ 123 notary public 294 commissioner of deeds 303 of office, form 350 of county and precinct officers 355 same, before whom taken 355 members of legislature 352 of office, when taken 353 before whom taken 354 where filed 356 of deputies 357 who may administer 123 may be administered by judges of election 522 by officer of election board 522 1030 GENERAL INDEX. OATH — Continued. road overseers 872 road commissioners , ; 1024 to tax collector 1568 commissioners may administer 1751 county officers may administer 1824 person solemnizing marriage may administer .».. 2433 person taking acknowledgment authorized to administer .... 2970 administered, by whom 123 administered, how 6128 administrator, of 5370 affirmation, equivalent to 6131 arbitrators may administer 5263 attorney, of . . . ". 3993 executors, of ■ 5703 form of 6129 foreman of grand jury may administer to witnesses 7633 irregularity in administering, no defense to perjury 6481 of foreman of grand jury 7617 of grand jurors 7618 of jurors in justices' courts 8291 of office 6480 of officer in charge of jury 8294 person taking, guilty of perjury, when 6478 refusal of elector to answer under 6355 OBJECTIONS to offer of performance, where made •. . . 3231 waived if not taken by demurrer or answer 4178 OBLIGATION, minor cannot disaffirm certain 2409 OBSCENE EXPOSURE of persons, books, etc 6840 OCCUPATION. See Possession. ODD-FELLOWS' association, may hold how much real estate 2763 OFFENSES. See Crimes. OFFER OF PERFORMANCE, receipt may be required upon. . . . 3230 objections to mode, when waived 3231 ability and willingness, when equivalent to 3483 OFFICE, effect of revised statutes upon certain 6 who are disqualified 315 when contested, salary not to be paid 380 proceedings where contested 381 vacancies 431 vacancies, how filled 433 hours 452 term of commissioners 1747 vacancy in county, how filled 1765 eligibility to county 1810 eligibility to precinct 1811 of certain county officers to be at county seat and open when . . 1822 usurpation of, proceedings as to 4618 vacancy in office of judge does not affect proceedings 3922 disqualified persons holding 6391 officer performing duties of two 6392 buying or selling appointments to 6387 extortion under color of 7083 how forfeited 6514 oath of, not included in statute relating to perjury 6481 wrongful exercise of 6388 GENERAL INDEX. 1031 OFFICERS, seal of, defined : 13 peace, defined 7522 public, how classified 110 reports, when to be made 160 who are civil executive 170 certain, to reside at Boise City 325 must not be absent from territory 326 territorial officers may occupy rooms in capitol 327 no allowance to, for rent, fuel or lights 327 who commissioned by governor 337 form of commission : 338 oath 350 oath, when taken 353 before whom taken 354 where filed 356 certain, not to be interested in certain contracts 365 not to be purchasers, etc., at certain sales 366 certain contracts made by, voidable ■ 367 certain, prohibited from dealing in scrip 368 duties of auditing 369 duties of disbursing 370 salaries, when title contested 380 proceedings where title contested 381 resignations, to whom made 430 possession of books and papers 440 seals of executive 448 what, may administer oaths 450 salaries 451 must keep what office hours 452 signature of ex-officio 453 records of 454 of election, how compensated — 493 serving subpoenas, when not to be prepaid 1770 of county not to present certain claims 1772 of deputy county 1815 how appointed 1819 powers and liabilities of deputy 1818 Administrative, same provisions apply as to executive officers 6390 Bonds of. See Bonds. County, enumerated 1812 elections 1814 vacancies 1821 office at county seat 1822 residence at county seat 1825 performing services for territory, how compensated 1889 Executive and Ministerial. accusation 7445 acting without having qualified 7452 armed force to obey, what 7405 asking or receiving bribe 6381 assaults by 6516 bribery of . . '. 6386 delaying to take person arrested before magistrate 6512 disclosing fact of indictment found 6531 duty of, making arrest 7552 duty of, to prevent duels 6715 embezzlement by ... . 7066 1032 GENERAL INDEX. OFFICERS— Continued. Executive and Ministerial — Continued. embezzlement or falsification of accounts by 6975 extortion by 6383 failing to pay over fines, etc 6978 false certificate by 6530 falsifying jury lists v 6468 grand jury to inquire into the conduct of 7638 how forfeit office 6436 inhumanity to prisoners 6514 intervention of, to prevent crime 7375 justifiable homicide by . . 6569 making arrest without authority 6513 must arrest rioters if they refuse to obey 7404 must command rioters to disperse 7403 oath of, in charge of jury 7887 neglect of tax collector 6984 neglect of auditor 6985 of corporation, publishing false report 7121 of insolvent bank, receiving deposits 7119 of savings bank, overdrawing 7118 omission of duty by 6534 penalty for being interested in certain contracts 6384 penalty for certain, dealing in scrip 6384 persons aiding, to prevent crime justifiable 7376 presenting false claims to 6385 proceedings for removal of 7459 proceedings for removal of district attorney 7458 proceedings in overcoming resistance to process 7400 proceedings to impeach or remove, preserved 6304 proceedings for removal of, before district court 7459 proceedings to remove civil, how prosecuted 7351 receiving reward for deputation 6387 refusal to surrender books to successor 6389 refusing or neglecting to disperse unlawful assembly . 6956 refusing or neglecting to pay over public moneys 6956 refusing to aid in making arrest 6517 refusing to receive or arrest accused parties 6510 resisting 6382 rescuing prisoner from custody of 6446 retaking goods from custody of 6447 suspension of, in case of impeachment 7438 to certify names of persons resisting 7401 trial of • 7454 when impeached, disqualified, until acquitted 7439 willfully resisting 6515 wrongfully exercising functions of office 6388 Judicial, affidavits, etc., taking 3913 contempt, power in cases of 3912 controlling power of courts over 3862 depositions, taking 6060 exempt from juries 3943 powers, etc , of 3910 justice of peace or constable purchasing judgment 6435 offering bribes to 6430 receiving bribes 6431 receiving excessive fees 6432 / GENERAL INDEX. 1033 OFFICERS— Continued. Of election, alteration of vote by 6359 violation of election laws by 6354 See Elections. Removal of, accusation by grand jury 7445 appeal from judgment of removal . . . , 7457 by impeachment. See Impeachment. denial 7451 form of accusation 7446 form of objection to accusation 7450 if defendant does not appear 7448 judgment on conviction 7456 objection overruled, answer 7452 objection to accusation 7449 proceedings on confession or issue 7453 removal otherwise than by impeachment 7445 trial and proceedings on 7455 transmission and service of copy of accusation 7447 Precinct, qualifications 1811 enumerated 1813 when to be elected . . . . 1814 OFFICIAL DOCUMENTS. See Writings. how proved 5977 OFFICIAL EXTORTION. See Extortion. OFFICIAL MISCONDUCT. See Officer. OFFICIAL RECORDS, carrying away or mutilation of, by officer 6389 refusal of officer to surrender to successor 6389 OLEOMARGARINE, to prevent sale of 6917 OLOGRAPHIC WILL denned 5728 need not be executed and attested 5727 probating : 5307 OMISSIONS in assessment-book, how remedied ■. 1700 in delinquent list, how remedied 1701 amendments of. See Amendments. of duty by public officer 6534 OPINION, of court, written, must be 3818 OPIUM, sale and use of 6831 keeping opium den 6830 buying to be smoked on premises 6831 frequenting dens of ... 6832 OPTION as to delivery, notice of, must be given 3249 how waived 3249 ORAL STATEMENTS. See Writings. transfer, when may be oral 2903 nuncupative will 5727 what contracts may be by parol 3224 ORCHARDS, toll roads through 1030 ORDER. See Motions and Orders. application repeated for same, prohibited 3920 ex parte, made out of court may be vacated or modified, with or without notice 4801 inadvertence, relief from 4229 mistake relief from 4229 motions and orders 4880 neglect, excusable, relief from 4229 payment of money, for, execution 4884 repeated application for same prohibited 3920 special proceedings in 4956 1034 GENERAL INDEX. < )RDER— Continued. surprise, relief from 4229 telegraph, service by -. . . ' 4895 contents of 81 24 for conditional examination, application, how made 8162 for conditional examination, application, to whom made 8163 for conditional examination, must direct what ., 8165 for conditional examination, to contain what 8164 for conditional examination, when may be applied for 8161 for bail to be indorsed on bench-warrant 7716 for change of venue 7770 for recommitment 8129 for resubmission to grand jury 7733 of court, disobedience of 6529 setting aside indictment no bar to another prosecution 7734 ORDER OF COMMITMENT. See Commitment. ORDNANCE AND ORDNANCE STORES. under control of governor 740 to be used for public defense 740 to be stored in capitol 741, 743 loan of to grand army posts 742 ORNAMENTAL PLANT, injuring 7170 OUTRAGE. SeeBape. OVERT ACT, evidence of, on trial for conspiracy 7865 OWNERSHIP, who may be owner ' 2827 termination 2837 remedies of, for injury to inheritance 2880 in real property, rights as to boundaries 2883 in real property rights to lateral, and subjacent support 2884 duties of, life 2885 mutual obligation of coterminous 2886 for life or years, effect of conveyance by, in excess of estate . . 2930 water, how acquired 3155 PANEL, challenge to, denned 7818 challenge to, in justices' courts 8290 challenge to, upon what founded 7819 challenge to, when and how taken 7820 denned 7817 grand jury, cause of challenge to 7608 grand jury, effect of allowing challenge to 7612 grand jury, objection to, taken only by challenge 7615 if challenge to, allowed, jury to be discharged 7825 See Challenge; Grand Jury; Jury. PAPER MONEY, issuing and circulating, unlawfully 7209 PAPERS, lost, how supplied 4923 mutilation of, by public officer 6389 official refusal of officers to surrender 6389 preparing false, for use upon trial 6501 stealing or injuring public, by person not an officer 6465 stealing or mutilating, by public officer 6464 PARDON, governor to communicate to legislature what, granted 8249 notice to district attorney of application for 8251 power of governor to grant 8248 power of granting, how exercised 8248 public notice of application for 8252 statement to be transmitted to governor on application for. 8250 applications to be registered 182 GENERAL INDEX. 1035 PARENT AND CHILD. unborn child, for what purpose deemed existing 2406 marriage between, incestuous 2424 child of annulled marriage, how may succeed 2452 child of annulled marriage, custody 2453 child of divorced parents, support 2474 child of divorced parents, custody 2473 liability of community property for support of child 2478 child of divorced parents, legitimacy 2479 allowance to parent for support and education of child 2530 reciprocal duties of, as regards maintenance 2531 when parent liable for necessaries supplied child 2532 wages of minor 2533 action for exclusive control of child 2534 illegitimate child legitimated by marriage of parents 2535 consent necessary to adoption of child 2548 appointment of guardian , 5781 right of posthumous child to take property 2833 birth of posthumous child defeats certain future interests .... 2837 child born after will takes by succession 5743 grandchild of testator unprovided for by will, when succeeds 5744 share of child born after will, out of what property taken 5745 advancement to child during life-time of testator, unprovided for by will 5746 deserting child 6783 homicide in defense of, justifiable 6570 omitting to provide necessaries for child 6782 PAROL. See Oral Statements. PARTIAL PERFORMANCE. See Performance. PARTICULARS, bill of 2663 PARTIES. See Third Persons. consent necessary to marriage 2420 to marriage, who 2421 to marriage, who may not be 2424 to contract, who 3220 to loan, may agree to any rate of interest 1264 abatement by death, etc 4108 adding 4113 administrator, action by, on bond of former executor, etc. , may be in his own name alone 5555 administrator may sue without beneficiary 1092 appeal, adverse party on, who is 4802 assignment of chose in action, etc 4091 association, sueing 4112 bankruptcy 5876 beneficiary interested, to sue 4090 beneficiary need not be joined, when 4092 bills of exchange, parties may be sued together 4106 child, injury or death of " 4099 common interest, one may sue for all 4105 common source, holding under may join 4104 coparceners 4107 death of 4108 death by negligence 4100 death of child 4099 defendants, all persons interested, may be 4102 defendants, substitution of 4109 interpleader 4110 1036 GENERAL INDEX. PARTIES— Continued. designation of 4021 different, suing in one action 4106 disability 4108 ejectment 4103 eminent domain 5218 executor, etc., action by, for injury or death v 4100 executor may sue without beneficiary 4092 executor, only those to whom letters issued need be joined 5556 forcible entry, etc 5098 husband and wife 4093 infants 4095 injury of child 4099 interest in, when to be joined 4105 interest, real party in, to sue 1 4090 intervention 4111 joint debtors, proceedings against parties not served after judgment 4860 joint tenants 4104 landlord may be made defendant 4102 marriage, nullification 2451 married woman 4093 misjoinder of, demurrer for 1 • 4174 names of, in complaint 4168 names of, in summons 4140 negligence causing injury or death 410 non-joinder of demurrer for 417 numerous parties, one or more may sue or defend for all 4105 partition 4568 plaintiffs, all persons interested may be 4105 possession, joining persons in with persons out of, as de- fendants 4103 promissory note, parties may be sued together 4106 quieting title, joinder 4104 refusal to join as plaintiff 4105 seduction 4098 separate property 4093 severally liable, parties on written instrument in one action . . 4106 several owners joining 4104 special proceedings in : • . • : 4955 statute, person authorized by, may sue without joining ben- eficiary 4092 striking out 4229 substitution of defendant 4109 sureties liable on separate instruments may be sued in one action 4106 tenants in common, joint tenants, coparceners, owners in sever- alty joining as plaintiffs 4107 trustee may sue without beneficiary 4092 unknown, may be described by fictitious names 4230 usurpation of office or franchise 4blz PARTIES TO CRIME, classification of 6341 PARTITION, answer 4566 complaint 4561 contingent interests 4589 conveyances 4593 conveyances, recording : • • 4595 decree to be recorded 2027 GENERAL INDEX. 1037 PARTITION— Continued. expenses, apportioning 4576 guardian, consent by 5792 incumbered property 4579 infant's shares 4601 intervention 4111 investments by recorder 4599 judgment ' . 4574 judgment, enforced how , 4475 lien on undivided interest , 4577 lien-holder, marshaling properties 4580 lien-holder, purchaser 4594 lien-holder, recorded rights 4562 life or years, estate for, how set out 4578 life or years, tenant's compensation 4586 lis pendens must be filed 4563 lunatic's shares 4602 order, for 4571 • partial 4568 parties 4090 purchasers, not referees or guardians 4591 referee 4569 referee, report of 4573 rights of all parties may be determined 4557 referee, report of, judgment thereon 4574 referee, single 4605 roads 4572 sale 4571 sale, confirmation 4593 sale, credit, on security 4585 sale, lots 4590 sale, proceeds, incumbered property 4579 sale, public, to be 4583 sale, referee's report of 4592 sale, terms of, court to direct 4584 sale, terms of, to be published 4590 securities 4598 summons 4564 summons, service by publication 4565 tenant, for years less than ten not affected 4575 tenant, unknown 4588 town site 4590 unequal compensation 4600 PARTNER, administrator cannot be 5351 estate of deceased person, rights 5554 firm name, sued by 411& of district attorney must not defend certain actions 65W PARTNERSHIP, interest, what 2828 Mining, how formed 3300 rights of members 8302 how effected by purchase of interest 3305 majority of, control 3309 Special, how formed 3270 of what to consist 3271 certificate must be made 3272 certificate, acknowledged and recorded 3273 liability of partners in making false certificate 3274 affidavit as to sums contributed 3274 1038 GENERAL INDEX. PARTNERSHIP— Continued. Special, requisites for forming 3275 certificate published 3276 affidavit of publication filed 3277 renewal of , 3278 who may transact business 3279 special partner may investigate and advise 3280 may lend to and recover from v 3281 general partners may sue and be sued alone 3282 special partners must not withdraw capital from 3285 may receive profits from 3284 transfer of, with intent to prefer creditors, void 3286 liability of general partner in 3287 of special partner 3288 of special partner for unintentional act 3289 who may question existence of 3290 how made general 3291 how new special partners admitted 3292 dissolution 3293 name of special partner not used when 3294 PARTRIDGE, killing of, in certain season 7187 PASSAGE-TICKETS, forging of 7039 value of, in certain cases 7054 PASSENGER-CARS, running freight cars before 6925 PASSENGERS, may be ejected for non-payment of fare 2684 PATENT, LETTERS, recorded without acknowledgment 2992 PAUPERS. See Poor. PAYMENT of taxes, time and place 1515 of taxes, date to be marked by collector 1517 receipt to be given 1518 on estate of decedent 1519 by tax collector to county treasurer 1521 of taxes, entitles person to certificate 1544 of taxes, in what coin 1707 of negotiable instrument payable to fictitious person 3467 for honor, made when 3539 for honor, how made 3541 must be accepted 3540 how made in case of foreign bill 3560 as performance. See Performance. PEACE, disturbing by noises or tumult 6959 police to preserve at public meetings 7394 public crimes against 6950-6963 security to keep 7385 threatening, quarreling, etc. See Security to keep Peace. PEACE-OFFICER defined 7522 arrest by 7540 duty of, making arrest 7552 duty of to prevent duels 6715 refusing to arrest accused party 6510 warrant of arrest must be directed to and executed by 7521 what are 7522 what warrants are to be directed to 7524 PEDDLER'S LICENSE 1651 PENALTY. See Contempt; Forfeiture; Fines; Imprisonment. jury may determine, when , . 6963 when none prescribed by statute 6535 PENDING, action when deemed 4927 GENERAL INDEX. 1039 PENDING ACTION, demurrer on ground of 4174 PEOPLE, execution to be in name of 4471 security, do not give 4291 PER DIEM. See Salaries. PEREMPTORY CHALLENGE. See Challenge. PERFORMANCE. See Able and Willing. of precedent conditions 2932 when pledgee must demand 3419 offer of. See Offer of Performance. PERJURY by grand juror in making accusation or giving testi- mony 7642 defined 6478 falsely swearing to qualifications as a voter 6489 incompetency of witness no defense for 6482 irregularity in administering oath no defense 6481 pleading in indictment for 7693 punishment of 6486 securing execution of innocent person by 6488 stating what one does not know to be true 6485 subornation of 6487 witness need not know that his evidence was material 6483 witnesses testimony may be read against him on trial for .... 6308 when making depositions, etc., deemed complete 6484 PERPETUATING TESTIMONY, mode of 6116 depositions, effect of 6122 deposition, when may be produced 6121 PERSON defined 16 crimes against 6765 denned 6301 indecent exposure of 6840 informed against 7390 instigating incapables to crime 6342 what, capable of crime 6330 who liable to punishment 6331 PERSONAL INJURY, who may sue for 4098 PERSONAL PROPERTY. See Property. retaking from officer 6447 PERSONAL RELATIONS. See Relatives. PERSONAL REPRESENTATIVES of minor, when may dis- affirm contract 2407 property of intestate passes to 5701 to distribute property, how 5702 possession of legacy obtainable only from 5755 by succession. See Succession. by wills. See Wills. PERSONATION, FALSE. See False Personation. PERSONS OF UNSOUND MIND. See Insane Persons; Insanity. cannot vote 501 cannot disaffirm contract for necessaries 2408 when cannot contract 2410 when may contract 2411 contracts subject to rescission 2411 powers of, when incapacity adjudged 2412 PEST-HOUSE, establishing and keeping in certain limits 6913 PESTILENCE, prisoner may be removed on account of 8536 PETITION to change, alter, or discontinue road 920 to show what 921 for construction of bridge 950 1010 GENERAL INDEX. PETITION— Continued, hearing 951 to construct toll-road 1020 when unnecessary 1029 for appointment to fill vacancy by commissioners 1765 of judgment creditor to have homestead appraised 3043 such to be verified 3044 copy served on claimant 3046 PETIT LARCENY defined \\\\ 7049 See Larceny. PETIT TREASON abolished 6564 PHARMACY, practice of, qualifications for 1282-1297 PHRASES. See Words. how construed 16 PHYSICIANS to give certificate of insanity ., 774 how to make 775 fees 781 may be summoned to post mortem examination 8379 juror exempt as 3943 privileged communications 5958 acts of, while intoxicated 6860 malpractice by intoxicated 6860 who may practice as 1298-1298e PICTURES, exhibiting indecent or obscene 6840 PIONEER ASSOCIATION may hold how much real estate 2763 PIPES, injuring gas or water 7171 PLACE where goods sold, delivered 3250 where goods sold, delivered, option 3249 notice of option as to 3249 at which negotiable instrument presented 3544 at which bill of exchange payable 3545 at which protest made 3555 PLACE OP TRIAL, change of, defendants must demand on ap- pearing with affidavit 4124 change of, exception deemed taken, when 4427 change of, fees 4127 change of, generally 4125 change of, jurisdiction 4127 change of, real estate, docketing and recording judgment .... 4128 change of, transmission of papers 4127 change of, what court to 4126 counties, actions against or between 4122 county, any, unless change demanded 4124 defendant's residence, generally 4123 foreclosure, local 4120 forfeiture, action for local 4121 local, when 4121 officer or person aiding him, action for act done by virtue of office 4121 partition, local 4120 penalty, action for, local 4121 probate proceedings, transfer of 4126 real property, injuries to local 4120 real property, recovery of, etc., local 4120 reside, generally where defendants 4123 residence out of territory or unknown .- 4123 \ GENERAL INDEX. 1041 ' PLACE OF TRIAL— Continued. Removal of action in criminal trials, application for 7769 application for, when granted 7770 authority of court to which removed 7773 clerk to certify costs to auditor of county from which removed 7774 order for 7771 proceedings on, when defendant in custody 7772 when may he had 7768 See Venue. PLEA defendant may enter, after demurrer overruled 7749 different kinds of 7755 former acquittal, what is 7761 former acquittal, what is not 7760 how put in, and its form 7756 in case of impeachment, where entered 7431 of defendant to complaint in justice's court 8283 of corporations to indictment 8228 of guilty, conviction on 7358 of guilty, how put in, and when may be withdrawn 7757 of guilty of accusation against officer, proceedings on 7453 of guilty, proceedings on 8299 of guilty upon, court to determine degree 7981 of not guilty puts what in issue 7758 of not guilty to be entered on refusal to plead 7763 of not guilty, what evidence may be given under 7759 once in jeopardy 7762 to be stated to jury 7855 when made 7722 when put in 7741 PLEADINGS, account 4209 allegations, material 4217 allegations, not denied, admitted 4217 allowed, what 4162 amendment, etc : 3862 answer. See Answer 4183 board, determination of 4211 conditions precedent, performance of 4212 complaint, amended answer to . / 4176 complaint. See Complaint. construction to be liberal 4207 counter-claim. See Counter -Claim. cross-complaint. See Cross- Complaint. defects disregarded 4231 definition of 4160 demurrer. See Demurrer 4174 determination of court or board 4211 facts, ultimate, not probative, not conclusive of law to be pleaded 4168 fictitious names 4230 filing 4220 forms of 4161 forms of, justices' courts 4667 heading defective 4924 irrelevant matter, striking out 4208 items, need not be pleaded 4209 joint debtors, after judgment, proceedings 4864 judgment, how pleaded 4211 judgment roll, part, if 4456 66 1042 GENERAL INDEX. PLEADINGS— Continued. libel and slander 4215 limitations of, statute, how pleaded 4213 • lost, how supplied 4293 material allegations, not controverted, admitted 4217 name, fictitious 4230 objections to, when waived 4178 particulars 4209 real property, conditions precedent, conveyance 4212 real property, description 4210 redundant matter, striking out 4208 separately stated, causes of action must be 4169 separately stated, defenses must be 4187 service 4220 sham, striking out 4208 signature to 4199 slander and libel 4216 statute, private, how pleaded 7690 striking out, as sham, irrelevant or redundant 4208 supplemental 4219 variance 4225 verification 4199 written instruments, inspection refused 4202 written instruments, setting forth 4202 PLEADING IN CRIMINAL CASES. See Plea. accessory, how indicted 7698 construction of words used in indictment 7684 error or mistakes in 8236 form and rules of 7675 indictment against several 7696 indictment, form of 7678 indictment, first by people 7676 indictment must charge but one offense 7681 indictment 'must be direct and certain 7679 indictment, what to contain 7677 indictment, when sufficient 7686 indictment, when not insufficient for defect in form 7687 indictment for forgery 7692 indictment for exhibiting lewd books 7695 indictment for larceny or embezzlement 7694 indictment for libel 7691 indictment for perjury, or subornation of 7693 of judgments 7689 on part of defendant 7740 of private statutes 7690 presumptions of law not to be stated 7688 principal and accessory, distinction abolished 7697 statement as to person injured 7683 statement as to time when offense committed 7682 when defendant indicted by fictitious name 7680 words used in statute need not be strictly pursued 7685 See Accusation; Demurrer; Indictment; Venue, etc. PLEDGE. See Deposit. what deemed 3410 lien dependent on possession 3411 covers increase of property 3412 lienor may 3413 pledgor must deliver possession to pledgee , 3411 GENEBAL INDEX. 1043 PLEDGE— Continued. when valid against real owner 3414 holder defined * " 3415 holder must enforce all rights of pledgee . ... 3416 further, when required ' \ 3417 sale when / 34^3 sale, not until demand made 3419 notice of time and place necessary \ 3420 notice, when waived 3421 demand waived, how " 3422 auction \\ 3423 pledgor may compel sale 3425 evidences of debt under sale 3424 pledgor entitled to surplus 3426 what pledgee may retain 3427 when pledgee may purchase 3428 foreclosure of 3429 PLURALITY, of votes, elects 490 PLURAL NUMBER includes singular 16 POISON, attempts to kill by administering 6597 putting in food, medicine, or water 6861 regulating sale of ]L282-1297 POLLING the jury . 7930 POLL-LISTS, See Election. POLLS. See Election. POLL-TAX, road 880 levy of 882 receipts 888 how collected and applied 884 cities and towns exempt from 887 employers responsible for, taxed to employes 901 as general taxes. See Revenue. POOR, commissioners to contract for care of indigent sick and de- pendent poor 2170 bond of contractor 2170 contractor to report quarterly 2170 must employ a physician for hospital 2171 labor of inmates of poor-house 2171 keeper to keep accounts and report quarterly 2172 application for county aid 2173 duty of officer to whom application is made 2174 duty of commissioners upon such application 2175 when claim not allowed against county 2176 by whom application may be made 2177 where inmate of poor house discharged 2178 treatment of inmates of poor house 2179 hospital tax, how collected and for what used 2180 tax receipts for 2181 POSSE COMITATUS, refusal to join 6517 POSSESSION. See Adverse Possession. owner of property in adverse, may transfer his title 2902 of legacies, how obtained 5755 change of, necessary in pledge 3411 transferred for security deemed pledged 8410 vendor's lien independent of 3440 seller of personal property, lien dependent on 3443 purchaser of real property, lien independent of 3444 lien for services dependent on 3445 1044 GENERAL INDEX. POSSESSION— Continued. factor's lien dependent on 3447 banker's lien dependent on 3448 possessory actions for public land 4552 claim, what to contain v 4553 description and record 4554 improvements 4555 action for, when plaintiff can maintain 4556 POSSIBILITY, mere, cannot be transferred 2900 POSTHUMOUS CHILD, when takes by succession 2833 birth of, defeats certain future interests 2837 deemed living at death of parent 5714 POST MORTEM EXAMINATION, coroner may summon physi- cian, surgeon or chemist 8379 POSTPONEMENT, costs may be imposed 4908 forcible entry, etc 5105 mandamus on 4982 trial 4372 trial, justice's court 4702 trial, commission, return of 6065 of examination 7568 of trial 7795 POWER OF ATTORNEY, how revoked 3003 to execute mortgage, requisites 3357 POWER OF COURT, amendment 3862 contempt 5155 oaths, administration of 3862 obedience, compelling 3862 officers, etc. , controlling 3862 order enforcing 3862 process controlling 3862 supreme court on appeals 3818 witnesses, coercing 3862 POWERS of counties 1730 of counties, how exercised 1731 of commissioners 1759 person of unsound mind cannot give 2412 of revocation when deemed executed 3017 PRACTICE. See Pleading. PRECINCTS, ELECTION. See Election. PREGNANCY of female under sentence of death 8017 PREJUDICE, challenge to grand juror for 7609 PRELIMINARY EXAMINATION. See Examination of charge . PREMISES, forcible entry and detainer of . 6962 returning after being removed by legal proceedings 6963 PRESCRIPTION, negligence in compounding, druggist's 6916 PRESENT, includes future tense 16 PRESENTMENT, bench-warrant issued on, when. 7650 bench-warrant issued on, how served 7652 by grand jury, how made 7669 denned 7631 form of bench-warrant issued on 7651 must be by twelve grand jurors 7647 must be presented to court and filed 7648 of indictment, manner of 7669 proceedings when defendant is brought before magistrate .... 7653 when bench warrant must issue on 7649 GENEBAL INDEX. 1045 PRESUMPTION of residence in divorce 2470 that fee simple title passes 2927 consideration in negotiable instrument 3468 bill of exchange dishonored 3486 written instrument imports consideration 3222 certain transfers without possession, fraudulent 3021 of law need not be stated in indictment 7688 of malice in cases of libel 6739 evidence. See Evidence. PRETENSES, FALSE. See False pretenses. PREVENTING witness from attending trial 6503 PRICE of real property, priority of mortgage for 3336 of real property, lien 3440 of personal property, lien 3443 PRINCIPAL, attorney in fact to subscribe name of 2925 PRINCIPALS, jurisdiction in case of not present at commission of offense . . . 7493 who are 6342 PRINCIPAL AND SURETY. See Surety. PRINTING included in "writing." 16 PRINTING OF TERRITORY, reports of officers, when 160 governor to deliver reports 180 copies of laws, from secretary of territory 191 PRIORITY of record priority of right 3001 mortgage for price of land has 3336 PRISON, assisting to escape from 6456 carrying aids to escape into 6457 escape from 6454 grand jury entitled to access to public 7639 grand jury to examine condition of 7638 jurisdiction of indictment of an escape from 7489 PRISON, TERRITORIAL, list of persons confined 182 attempt to escape from 6453 escape from 6452 expense of trial of escapes from 6458 temporary removal of prisoner to be witness 8155 transporting prisoners to, compensation for 8504 purchase of books for 8510-8512 to refund expenses of trial of escapes 6458 Qop lOYi 1)1 CT PRISONERS, arrested without lawful authority 6513 assisting to escape 6456 bringing from territorial or other prison before a court 8435 carrying things into prison to aid in escaping 6457 committed by United States courts, must be received 8529 committed must be actually confined 8528 conveyed to territorial prison, compensation for 8504 credits for good behavior, how and when allowed 8505 credits, how forfeited 8506 purchase of books for 8510-8512 depositions of witnesses who are 8171 escaping from other than territorial prison 6454 escaping from territorial prison 6452 grand jury to inquire into condition of 7638 inhumanity to 6514 may be removed in case of fire or pestilence 8535 not to be received at county jails on civil process 8540 officer delaying to present to magistrate 6512 1046 GENEKAL INDEX. PRISONERS— Continued. officer permitting to escape 6455 rescuing from custody 6446 to be classified in county jails ■ . 8527 temporary removal of, to be witness l 8155 when may be returned to proper county 8534 when may be taken to jail in contiguous county 8531 jspp \f)71 1)1 ot PRIVATE PERSONS making arrest 7541 PRIVATE SITTINGS in certain cases 3861 PRIVATE STATUTES, how affected by these revised statutes . . 17 how pleaded 4214 PRIVATE WRITINGS, See Evidence. PRIVILEGED COMMUNICATIONS, generally 5958 PRIVILEGED PUBLICATION. See Publication. PRIVILEGE OF WITNESS, on trial for gaming 6852 to a duel 6716 PRIZE FIGHTS, penalty for engaging in 6957 PROBATE COURTS. See Courts; Estates of Deceased Persons. in each county 3840 jurisdiction of 3841 presumption as to jurisdiction 3842 terms 3843 terms, where held, clerk — 3844 proceedings in civil actions in 4629 PROBATE JUDGE. See Chambers. chambers, power at 3890 fire proof office for 1836 PROCEEDINGS. See Special Proceedings; Judicial Proceedings. PROCEEDINGS SUPPLEMENTARY TO EXECUTION, gener- ally • 4504 PROCESS defined 16, 1870 by whom served 1871 how returnable 1872 return, evidence : 1873 penalty for not returning 1874 when sheriff justified in executing 1882 officer to exhibit 1883 service on sheriff 1885 coroner, when to execute 1886 elisors, when to execute 1887 service by constables 2090 serving on foreign corporation 2652 inadvertance, relief from 4229 mistake, relief from 4229 mode of, any suitable, may be adopted to carry out jurisdic- tion 3925 neglect, excusable, surprise, etc,, relief from 4229 disobeying or resisting 6529 execution of legal, justifies homicide 6569 officer must certify names of persons resisting 7401 parties to proceeding for removal of officer entitled to 7455 power of officer to overcome resistance to e^cution of 7400 sheriff not to receive prisoner on civil 8540 when military to be ordered to aid in executing 7402 PROCLAMATION. See Election. governor may declare county to be in a state of insurrection . . 7406 disobeying of 7407 may revoke 7408 GENEKAL INDEX. 10-47 PROFANITY, disturbing peace by 6959 PROFITS. See Community Property. special partner may draw share of 3284 PROHIBITED ACTS for which no punishment prescribed, mis- demeanors 6535 PROHIBITION, WRIT OF. appeals in cases of 4807 generally 4994 hearing, may be at any time 5000 issue, may at any time 5000 supreme court, may issue 3816 PROMISE OF MARRIAGE, when neither bound 2427 PROMISE. See Contracts. of adult to pay necessaries furnished parent 2531 to answer for third person 6010 to accept bill of exchange, when acceptance 3536 PROMISSORY NOTE. See Negotiable Instruments; Notes. defined 3575 apparent maturity 3495 bill of exchange, when deemed 3576 bill of exchange, when converted into 3577 delay in presentment 3578 PROOF. See Evidence. of consent to marriage 2422 of destruction or cancellation of will 5731 what required for common barratry 6522 of instrument of record. See Acknowledgment. PROPERTY defined 16 real, defined. See Real 16 personal, defined 16 Real, delinquent tax on personal, added to tax on 1530 notice of sale, for delinquent taxes 1531 sold for delinquent taxes 1546 sold for delinquent taxes, title 1547 redemption of, sold for taxes 1548 sale of taxes, misnomer not to invalidate 1574 abbreviations in assessing 1703 counties may purchase 1733 instruments affecting, to be recorded 2027 survey of disputed, lying in two counties 2069 defined 2825 future estates 2850 limitation of successive estates for life 2852 remainders on estate 2853 remedies of grantees for rents and reversions of 2875 remedies of lessor against assigns of lessee 2876 of lessee against assigns of lessor 2877 on leases for life, for rent 2878 rent, how recovered -. 2878 injury to inheritance in 2880 boundaries by ways 2883 lateral and subjacent support 2884 obligations of owners 2885 tenant for life, duties 2885 coterminous owner, rights 2886 tenant may remove what fixtures 2882 words of inheritance not necessary to pass fee 2905 fee simple title, when presumed to pass 2927 1048 GENEEAL INDEX. PROPERTY— Continued. Real, subsequently acquired title passes by operation of law .... 2928 lien of seller 3440 lien of purchaser 3444 Personal, seized and sold for taxes 1560 sale at public auction • 1561 sale, when 1562 fees of collector for sale 1563 title vests in purchaser at sale 1564 remaining unsold 1565 assessed in one county, effect where owner removes to another 1575 purchased and held by counties ... 1733 found on dead body, how disposed of 1854 recording inventory of wife's 2500 transferring contract for delivery of 8600 seller's lien 3443 of husband and wife, rights of 2508 of husband and wife, may be used to support children 2478 community defined 2829 community, resort to, for alimony 2476 disposition of, on divorce 2482 distribution on death of wife 5712 distribution on death of husband 5713 separate, may be used for support of child 2478 of husband, when liable for alimony 2476 separate, of husband, defined 2496 of husband, when not liable for wife's debts 2503 separate of wife, defined 2495 wife may dispose of without consent of husband 2495 when liable for support of husband 2507 not liable for husband's debts , 2504 of wife, husband cannot select homestead out of 3037 when liable for parents' support 2530 corporations may acquire 2638 real 2825 personal 2826 who may own 2827 rights of posthumous children in 2833 future interests pass by transfer 2835 when not defeated 2839 future interests, vested 2830 future interests, contingent 2831 future interests, contingent, may be alternative 2832 what disposed of by will 5725 conspiracy to obtain by fraud 6540 crimes against 7035 dogs are 7052 fraudulent concealment of, by debtor 6519 fraudulent concealment of, by defendant 6520 homicide in defense of, justifiable 6570 inventory of, taken on search warrant 8404 larceny of lost 7046 of territory, crimes against 6975 protection of 7369 receipt for, taken on search warrant 8402 receiving, in false character 7094 refusing to give assessor list of 6979 taken on search warrant, how disposed of 8403 taken on search warrant, to whom inventory delivered 8405 taken on search warrant, to whom restored 8407 GENERAL INDEX. 1049 PROPERTY— Continued. Unclaimed, in possession of carriers 1160 sale 1161 proceeds of sale 1162 on which advances have been made, sold 1163 what, subject to taxation 1400 assessed at full cash value 1425 assessor to make list of, subject to taxation 1428 statement of, given to assessor 1429 value, where party refuses to render statement 1483 of absent or unknown owner, how assessed 1434 consigned, how assessed 1439 partnership, where assessed 144*2 of corporation, where assessed 1442 of deceased person, to whom assessed 1443 in litigation, to whom assessed 1448 willfully concealed, etc. , how assessed 1449 escaping assessment previous year 1450 PROSECUTION, autrefois convict and acquit, bar to, in certain cases 7494 demurrer allowed, bar to another 7746 discharging defendant to be witness, bar to 7863 dismissal of action for misdemeanor, bar to 8217 for murder, may be commenced at any time 7500 must be had in name of the people 7353 no person subject to second, for same offense 7356 of criminal actions, form of 7353 order of compromise, bar to another 8206 order to set aside indictment, no bar to another 7734 separate and distinct 7601 what must be, by accusation, etc 7601 what must be by indictment 7600 See Jeopardy. PROTEST of bill of exchange ' 290 notice of dishonor of foreign bill only by notice of 3552 by whom 3553 how made 3554 where 3555 when 3556 how excused 3557 notice of, how given 3558 effect of waiver 3559 PROVINCE OF JURY to determine law and fact in libel 6740 PROVISIONS, implied warranty on sale of 3248 PROVOCATION. See Malice. PROXY, voting by, at corporate meetings 2599 PUBLIC nuisance 3621 PUBLIC ADMINISTRATOR. See Executor and Administrator; Estates of Deceased Persons. neglect or violation of duty 5694 PUBLIC BUILDINGS. See Buildings. PUBLICATION notice of meeting of county board of equalization 1454 tax collector's notice 1516 delinquent list 1530 notice with delinquent list 1531 how made 1532 to designate what 1533 affidavit and copy, filed with whom , 1535 1050 GENERAL INDEX. PUBLICATION— Continued. notice of sale of personal property seized for taxes 1562 amendment to delinquent list 1701 of additional meetings of commissioners 1756 of public notices 1784 of redemption of interest bearing warrants 1846 of assessment notice 2619 delinquent assessments 2622 certificate of special partnership 3276 affidavit of 3277 notice of dissolution of special partnership 3293 for not fighting a duel . . . i 6714 indecent 6840 injurious, presumed to be malicious 6737 libelous, defined 6741 of notice of application for pardon 8252 of notice to procure abortion 6843 of sealed letters 7166 privileged 6743 pleading in indictment for exhibiting or selling obscene 7695 proceedings regarding indecent 6840 service of notice of appeal by 8046 See Estates of Deceased Persons; Notice; Sole Traders; Summons PUBLIC DOCUMENTS. See Instruments. PUBLIC HEALTH, conspiracy to commit acts injurious to 6540 PUBLIC MEETINGS. See Meetings. PUBLIC MONEYS defined 6977 officer refusing to pay over 6976 wrongful use of, bv officer 6975 PUBLIC NUISANCE: See Nuisance. PUBLIC OFFENSE. See Crimes. PUBLIC OFFICER. See Officer. PUBLIC RECORDS. See Records. PUBLIC TRIAL. See Trial. PUBLIC USE. See Eminent Domain. PUBLIC WRITINGS. See Evidence; Instruments; Records. PUBLISHERS, liability of 6743 PUNISHMENT, attempts, to commit crimes 7234 duty of court to impose 6306 for procuring execution of innocent person by perjury 6488 for violation of election laws 6367 grounds for investigation of, in embezzlement 7075 for contempt preserved 6305 how determined 6307 of accessory 6344 of contempts • 7231 of felony 6312 of misdemeanor 6313 of perjury . 6486 of public officer, convicted of crime 6435 one act punished by different provisions 7230 proof of facts in mitigation or aggravation of 7992 restrictions on 7236 summary inquiry for mitigation of 7993 what persons are liable to 6331 when not prescribed by statute 6535 PURCHASE-MONEY, priority of mortgage for 3336 lien for 3440 GENEEAL INDEX. 1051 PURCHASER. See Sales. at delinquent tax sale, who 1539 failing to pay, property resold 1542 bid rejected at subsequent sales . 1543 to receive certificate 1545 lien of territory for taxes vests in 1547 when entitled to deed 1553 deed conveys what title 1557 of personal property sold for taxes 1564 of auction sale of delinquent stock 2625 when corporation may be 2626 of franchise of corporations, powers and duties 2643 heirs of tenant for life, when take as 2855 grant, how far conclusive 2929 instruments void against subsequent 3015 instruments not void against subsequent 3016 grant by person having power of revocation operates as revo- cation, when 3017 when sale of personal property void against 3021 when mortgage of personal property void against subsequent 3021 pledgee cannot be from pledgor, except by direct dealing 3428 of real property, lien 3444 transfers void against 3021 lien of seller or buyer not valid against subsequent 3442 PURCHASING BY OFFICER, scrip, etc 6384 QUAIL, killing in close season 7185 partridge and, or their eggs 7187 QUALIFICATIONS of office holders 315 superintendent of insane asylum 756 commissioners 1746 county officers 1810 district and precinct officers 1811 QUALITY, implied warranty of goods sold by sample 3246 general 3247 QUANTITY, implied warranty as to 3247 QUESTIONS OF LAW, for court 5951 See Issus QUIETING TITLE, alienation pending suit 4546 costs on disclaimer 4539 defendants, joinder of 4102 disclaimer * 4539 generally, land 4540 generally, money, etc 4229 improvements, set off for 4541 injunction 4288 inspection, survey, etc. , of property 4543 money, etc., to 4928 parties to action 4538 survey, order for 4543 title, plaintiff's terminating, during suit 4540 QUO WARRANTO. district court has jurisdiction of 3830 usurpation of office 4612 RACING on highways 6928 RAILROADS may borrow money and issue bonds 2664 death of person from collision on 6909 valuation and assessment of : 1463 1052 GENERAL INDEX. RAILROAD COMPANY, forging tickets or checks of 7039 See Corporations. RAILROAD TICKET. See Passage Ticket. RAILROAD TRAIN, jurisdiction of crimes committed on 7485 offenses on 7212-7214 RAILROAD CORPORATIONS. See Corporations. RAPE denned 6765 penetration sufficient 6767 punishment of 6768 when physical ability must be proved 6766 RATE of taxation for county purposes 1411 RATE OF INTEREST, legal 1263, 1264 REAL ESTATE. See Property, real. term defined 16 as property. See Property. attached, how 4307 execution against 4473 foreclosure 4520 included in property 16 means lands, tenements, and hereditaments 16 partition 4560 REASONABLE DOUBT. See Doubt. RECAPTURE. See Rescue. RECALLING WITNESS, permissible under what circumstances 6081 RECEIPTS, road poll tax 883 person paying tax entitled to 1517 blank poll tax, controller to- prepare 1601 auditor to sign 1602 person paying poll tax entitled to 1610 evidence of what 1611 unused poll tax returned 1613 for moneys paid into county treasury 1843 party performing obligation entitled to written 883 RECEIPT by officer taking money, etc., from person arrested . . . 8243 false, for poll-taxes 6980 false, for poll-taxes, possessing 6981 for property taken on search warrant 8402 RECEIVER to enforce alimony 2475 appointment 4329 attorney for party cannot be 4331 disqualified, who is 4331 foreclosure, in suit for 4329 interested person cannot be 4331 oath of 4332 party cannot be 4331 powers of '. 4333 undertaking for damages 4331 undertaking of 4332 RECEIVING stolen property 7058 stolen property, by officer 8238 See Stolen Property. RECOMMITMENT, contents of order for 8130 if for failure to appear for judgment 8132 if for other cause 8133 of defendant after admission to bail 8129 pursuant to order for, defendant may be arrested 8131 RECONSIDERATION of verdict, court may direct 7928 GENEKAL INDEX. 1053 RECONVEYANCE by grantee on non-performance of conditions subsequent 2931 RECORD, copy, requires seal of court to authenticate it 3875 evidence, as. See Evidence, adding names to jury lists 6467 clerk to transmit to appellate court 8051 falsifying jury lists 6468 larceny, mutilation, etc. of 6465 making false entry in 7029 offering false, in evidence 6464 preparing false for use on trial 6501 refusal of officer to surrender to successor 6389 See Records. RECORDER, conveyance for right of way filed with 934 to record marks and brands 1173 attend sittings of county boards of equalization 1481 collector of taxes to make affidavit and file copy of publication of delinquent taxes 1535 copy of certificate of sale of property for taxes, filed with . . . 1545 to file certificate of sale 1551 duty, when property sold for taxes redeemed 1552 office at county seat . ., 1822 to reside at county seat 1825 bonds 1828 to procure record books 2023 to record what 2024 to keep indexes 2025 records of certificates of sale 2026 to record decrees of partition ; 2027 filing copy, to impart notice 2028 two or more indexes in same volume 2029 duty on receipt of instrument to be recorded 2030 to indorse recorded instruments 2031 to make searches 2032 liability for neglect 2033 fees prepaid 2034 records open to inspection 2035 certificate of marriage filed with 2435 inventory of wife's property filed with 2500 city or county may take acknowledgments of instruments. . . . 2951 certificate of formation of special partnership filed with 3273 notice of dissolution of special partnership filed with 3293 entry of satisfaction of mortgage made in presence of 3361 personal mortgage recorded with what 3387 RECORDING, marriage certificate 2435 inventory of wife's separate property 2500 effect of 2501 marriage settlements 2510 effect of 2511 N by-laws of corporation 2591 of conveyances made by public officers 2925 what subject to 2990 judgments subject to without acknowledging 2991 location notice without acknowledgment 2993 letters patent without acknowledgment 2992 prerequisites '. 2994 in what office made 2997 when complete 2998 1054 GENEKAL INDEX. RECORDING— Continued. books 2999 legality of prior, not affected 2974 as evidence 2975 as notice 2976 where and to whom notice 3000 priority of, establishes priority of right 3001 of revocation of power 3003 effect of want of ; 3004 instruments affecting homesteads 3042 homestead declaration 3087 notice of appropriation of water 3160 certificate of formation of special partnership 3273 renewal of special partnership 3278 dissolution of special partnership 3293 power of attorney to execute mortgage 3357 assignment of mortgage 3358 effect 3359 satisfaction of mortgage 3364 mortgage of personal property 3387 Qpp "Records RECORD OF ACTION, roll of 7996 what to be entered in'. 7996 See Record. RECORDS in governor's office 182 secretary of territory, custody of territorial 190 secretary of territory, fee for searching 196 of notaries public 289 notaries public, disposition of 291 notaries public, certified copies of 292 officers 440 "record of official bonds" 393 proceedings to compel to deliver official 441 open to public inspection 454 brands and marks 1176 penalty for using unrecorded marks and brands 1185 of commissioners 1753 of commissioners, public 1758 books for, by recorder 2023 what to be recorded 2024 indexes to 2025 of certificates of sale 2026 decrees of partition 2027 open for inspection 2035 recorder to make searches 2032 RECRIMINATION. See Divorce. REDEMPTION execution sale on , 4491 of property sold for taxes 1548 how effected 1549 of county warrants 1845 of franchise by corporation 2646 of persons having interest in property subject to lien 3337 of inferior lienor 3338 contract in restraint of, void 3334 REDEMPTIONER defined. 4491 REDEMPTION of county indebtedness 3602-3607 RE-ENTRY right, when and how exercised 2858 right, transferable 2901 GENERAL INDEX. 1055 REFEREE, testimony in divorce cases before 2471 giving bribes to ' (5430 improper attempts to influence 6433 misconduct of 5434 receiving bribes 6431 receiving communication other than in regular proceeding . . . 6434 REFERENCE, attorney, of accusation against 4013 compulsory 4415 consent, by 4414 findings, effect of 4420 judgment on, issue of law 4409 objection to referee 4417 objection to referee, grounds of 4417 objection to referee, how disposed of 4418 partition, in 4559 referees, number and qualifications 4416 referees, three; all to meet, but two may act 4931 report 4419 REFUSING, to aid officer in making arrest 6517 REGISTER OF ACTIONS, clerk to keep . 4930 REGISTRATION of voters 502-6096 REHEARING, supreme court, in 3818 RELATIONSHIP of half-blood, right to succeed 5705 succession, through illegitimate, when . i 5704 RELATIVES, legacies to, when chargeable with debts of testator 5754 when illegitimate taken by succession 5704 of half blood succeed alike with whole blood 5705 alienage of, does not affect right of succession 5715 RELEASE of future interests 2834 RELIGIOUS, SOCIAL AND BENEVOLENT CORPORATIONS. See Corporations. REMAINDERS, contingent, on prior remainder in fee 2851 upon successive estates for life 2853 upon contingency 2854 what title vests under 2855 owner may sue for injury to inheritance 2880 REMEDIES, civil and criminal not merged . 3801 REMITTITUR, supreme court, judgment 3818 of case from appellate court 8076 REMOVAL. See Place of Trial of owner of personal property, assessed 1575 of officers. See Officers. officer of corporation 2597 REMOVAL from office by summary proceedings 7459 for inhumanity to prisoners 6514 of civil officers, otherwise than by impeachment 7445 of civil officers, judgment on conviction 7456 of district attorney 7458 See Officers REMOVAL OF ACTION. See Place of Trial; Venue. RENEWING APPLICATION for refused order 3920 RENT. See Landlord and Tenant. remedies for recovery of 2875 remedies by assignees 2876 under lease of life 2878 dependent on life, when recoverable 2879 payment to grantor, when binding on grantee 2933 RENTS AND PROFITS, pending redemption 4497 set-off, as against improvements in ejectment 4541 10-56 GENEKAL INDEX. REPAIR, owner of estate for life to 2885 tenant for life to, fence 2885 coterminous owners to, fence 2886 REPEAL, affects officers, how 7 not to revive former laws 158 of laws creating criminal offense : . . . 159 REPLEVIN. See Claim and Delivery. generally 4271-4282, 4229, 4453 REPORTS of officers, when made 160 printing ' 160 governor may require special 180 school superintendents 651 road overseers 905 penalty for failure to make 908 of road viewers 925 of road viewers, not approved, when 926 proceedings on 928 effect of approval 929 of officers of roads and highways 952 of bridge and ferry owner 1074 county auditor 1675 county officer failing to make 1676 county treasurer, to commissioners 1851 penalty for neglecting to make 1852 of appraisers of homestead 3050 REPORTS OF SUPREME COURT, how distributed 193 REPRESENTATION, who succeeds by right of 5714 REPRIEVES, governor must communicate to legislature, granted 8249 power of governor to grant 8248 RESCISSION, by minor 2407 by person not entirely without understanding 2411 third person may enforce contract before 3221 RESCUE, liability of sheriff for 1878 from custody 6446 may break open doors to retake 7560 RESERVOIR, injuring or destroying 7162 taking water from 7137 RESIDENCE, notary public 288 of territorial officers 325 rules for determination of, at election 574 requisites in regard to, in divorce 2469 proof of actual, required in divorce 2470 RESIGNATION of notaries public 291 of officers, to whom 430 RESIDUE, remainder on 2853 RESISTANCE to execution of process, military force may be or- dered out, when 7402 to execution of process, power of officer to overcome 7400 willful, to officers 6515 See Lawful Resistance; Officers. RESOLUTION, altering draught of, in legislature 6410 altering enrolled copy of 6411 RESPONSIBILITY for crime. See Crimes; Insanity, Minor, Etc. RESTITUTION of property on reversal 4825 RESTORATION lien extinguished by 3339 RESTRAINT of right of redemption from lien, not allowed 3334 what degree of, allowed before conviction 7357 what degree of, allowed of party arrested 7539 GENERAL INDEX. 1041 RESUBMISSION after discharge, because facts do not constitute offense 7876 of case after dismissal of indictment 7667 of case after indictment set aside 7734 when demurrer allowed 7746 RETIREMENT of grand jury 7620 RETURN, sheriff's, of process 1872 same, what evidence 1873 failing to make 1874 of appraisers of homestead 3050 execution under 4472 gold dust, how returned under execution 4477 summons of 4148 REVENUE. offenses by officers relating to 6975 license for toll bridges and ferries 1073 license, when to issue 1076 collection of delinquent. See infra Delinquent. revenue derived 1083 property subject to : 1400 lists of property and persons subject to 1428 rate of 1410 commissioners to regulate county rate 1411 to levy to pay outstanding warrants 1415 disposition of money arising from mortgage 1527 blank, for license, unlawfully having 6981 delivering false receipt for poll and license 6980 having in possession false receipts for poll and license 6981 Actions, on bond of assessor for malfeasance or neglect 1458 judgment 1459 against tax collector 1522 for violation of revenue law 1684 against county treasurer for refusal to settle report 1852 against district attorney for refusal to pay over moneys 1853 against coroner for failure to turn over effects of deceased 1854 officer suspended during 1858 against sheriff for suffering escapes, etc 1877-1879 Assessment, of property 1425 property, how and by whom made 1425 to be made when 1428 of absent or unknown owner 1435 property in another county 1436 live stock driven into territory to graze 1426 duty of assessor as to such stock 1427 teams and pack trains owned without the territory 1437 bank shares 1441 of agent, trustee, bailee, etc 1439 of stock 1440 of consigned goods 1438 corporations, where 1442 property of deceased persons v. 1443 ferries and toll bridges 1444 ferry boats in two counties 1444 boats and small craft 1447 things in action 1448 property willfully concealed, removed, etc 1449 property, escaping assessment of previous year 1450 when completed 1453 67 1042 GENEBAL INDEX. REVENUE— Continued. Assessment on water-ditches, toll-roads, and telegraph lines 1460 railroad and telegraph lines 1453 See also Equalization. equalization of 1475 commissioners empowered to correct : . . . 1475 commissioners may direct new, when 1483 certified copy of, as evidence 1576 of land, abbreviations 1703 informalities not to vitiate > 1704 Assessment Book, assessor to note refusal to make statement . . 1433 assessor to prepare 1451 form 1452 assessor to make affidavit 1453 delivered to clerk of commissioners 1454 penalty for failing to complete 1455 lands need not be 1456 commissioners to determine 1475 railroad and telegraph assessments to be entered in 1463 commissioners may require assessor to make further entry . . . 1482 assessor to enter changes and alterations 1484 auditor to make entries 1500 duplicate 1503 tax collector to mark payment in 1517 delinquent list compared with 1567 original and duplicate, as evidence 1558 defects in form 1700 abbreviations in 1703 Assessors. See Assessor. Auditors. See Auditor. Bonds, liability on assessors 1457 of assessor, action on 1458 Collection of taxes. See Tax Collector. tax collector charged with taxes levied 1504 tax collector to publish notice 1515 publication of notice 1516 tax collector to note date of payment 1517 receipt given 1518 taxes of decedents, how paid; duty of probate judge 1519 settlement of collector with auditor 1520 refusing or neglecting to settle 1521 action for refusal or neglect 1522 taxes delinquent, addition of fifteen per cent 1523 assessment book, in numerical or alphabetical order 1526 credit tax collector on final settlement 1527 when delinquent list completed 1525 tax collector charged with delinquent taxes and per cent addi- tional 1528 auditor to transmit statement to controller 1529 publication of delinquent list 1530 notice of sale 1531 manner of publication 1533 sale, when and where 1534 notice filed with county recorder 1535 additional sum to defray costs, how collected 1536 manner of sale 1538 owner may designate portion to be sold first 1539 property resold, when 1542 GENEKAL INDEX. 1043 REVENUE— Continued. Collection of taxes — Continued. bid of person once refusing payment not received 1543 duplicate certificate of sale 1544 certificate of sale; one to purchaser, one filed with recorder, other retained 1545 entry in book of, description of land sold 1546 lien of territory vests in purchaser, how divested 1547 redemption 1548 redemption, how made 1549 treasurer to report names of persons entitled to redemption . . 1550 recorder to file certificate of sale 1551 when property redeemed, recorder to note in book , 1552 property not redeemed within six months, deed to purchaser. 1558 recitals in deed evidence of what 1554 what recitals conclusive evidence 1556 deed conveys absolute title, exception 1557 assessment book, duplicate assessment book, delinquent lists, etc. , evidence 1558 seizure and sale of personal property for taxes 1560 manner of sale 1561 collector's charges for sale and seizure 1563 title vests in purchaser on payment 1564 excess over taxes and costs returned to owner 1565 unsold portion left at place of sale at risk of owner 1566 final settlement of collector with auditor 1567 collector to make affidavit 1570 interest on delinquent taxes 1573 what mistakes do not affect sale of property for taxes .... 1574 collection of taxes from persons removed to another county. . 1575 collection of taxes by action 1575 poll 1605 assessed prior to statutes, how collected 1710 County treasurers, to settle with controller and pay over to ter- ritorial treasurer 1670 time of settlement 1671 to settle license account 1672 amounts due county officers from territory 1673 failure of county treasurer to settle and pay over 1674 County officers, amounts allowed to from territory for services in connection with territorial revenue 1679 Deeds, to purchaser at tax sale 1553 conclusive evidence of what 1556 title conveyed 1557 Delinquent, when 1523 list of 1525 list to contain what 1526 to be compared with assessment book 1527 charged to tax collector 1528 statement to be forwarded to controller 1529 list to be published 1530 notice of sale 1531 percentage on delinquent 1536 owner may designate what portion sold first 1539 if purchaser fails to pay, property resold 1542 bid of such purchaser refused at subsequent sale 1543 certificate 1544 redemption 1548 1044 GENERAL INDEX. REVENUE— Continued. Delinquent, deed I553 certain documents evidence 155$ on personal property collected by seizure and sale 156O sale, how made " 1552 excess at sale, disposition 1555 delinquent list to be compared I557 auditor to foot up unpaid 1569 affidavit as to paid and unpaid 1570 interest on delinquent , 1573 misnomer not to invalidate sale 1574 on personal property in certain case, how collected 1575 amendment of delinquent list 1701 validity of sale, protest 1559 assessment and sale of property purchased by county 1540 redemption of property so sold 1541 redemption of land sold to county 1554 District Attorney to institute action against tax collector 1522 to commence action, when 1684 consent to modify or alter assessment book 1700 settlement with county auditor 1708 Equalization, county boards of, when to equalize assessment . . 1475 correct assessment 1476 no reduction unless on application of person assessed 1477 examination of person assessed 1478 witnesses and evidence I479 assessor and deputy to attend 1480 county recorder to attend 1481 information and entry of mortgages 1482 new assessments 1483 clerk to record proceedings and alterations 1484 to determine additional assessments 1485 territorial board of equalization 1463 Levy of taxes, rate 1410 property exempt from taxation 1401 for territorial purposes 1410 commissioners to regulate county rate of 1411 to levy to pay outstanding warrants 1415 of taxes, effect 1412 power of counties to levy 1733 Licenses, tax for toll bridges and ferries 1073 when to issue ' 1076 revenue derived from such 1083 controllers to transmit to county treasurers 1631 auditor to furnish county licenses 1632 county treasurer to report to controller 1635 to be prepared and printed 1630 auditor to sign, number, and deliver 1633 auditor to keep stamps and license account 1634 when to be procured 1636 suit against person failing to take out 1637 duties of tax collectors in relation to 1638 action against delinquents 1639 settlements by tax collector 1640 fees for 1641 classification of auctioneers 1642 bridge, ferry, etc 1643 brokers, trust companies, etc 1644 GENERAL INDEX. 1045 REVENUE— Continued. Licenses, billiards 1645 theaters 1645 pawnbrokers 1645 retail liquor 1648 merchants and livery stables 1649 exception in using liquors 1650 peddlers and hawkers 1651 banking games at cards 1647 penalty for under estimate of business 1652 marriage, original to be filed with recorder 2435 copy given to parties 2436 to take toll on bridges, etc 2694 of foreign insurance companies 2758 carrying on business without 6983 delivering, without receipt for payment 6980 unlawfully having blank receipts for 6981 Lien, taxes operate as judgment or lien against property 1412 on personal property as lien on real property 1413 on real property and improvements, lien upon both 1414 Lists delinquent, tax collector to deliver to auditor 1525 to contain what 1526 to be compared with what 1527 to be published 1530 compensation for making 1536 Mileage, to tax collector for seizing and selling personal prop- erty 1563 county treasurer forfeits, when 1674 controller to deduct from payments made by treasurer 1678 Moneys, tax collector to pay, when 1520 county treasurers to pay to territorial treasury, when 1670 statement concerning, paid by county treasurer 1680 Notices, tax collector to publish 1515 publication 1516 of sale of property 1531 of sales of personal property 1562 of amendment to delinquent list 1701 Officers removed for neglect 1706 books open to public inspection 1711 Payment of taxes, time and place - 1515 date to be marked by collector 1517 receipt given upon 1518 on estate of decedent 1519 of moneys by tax collector, to county treasurer 1521 of taxes, entitles person to certificate 1544 into territorial treasury by county treasurers 1670 of taxes, in what coin 1707 owner of life estate must pay v 2885 Penalty for tax collectors not filing statement and paying moneys 1521 county treasurers failing to settle 1674 auditor failing to report 1677 for violating revenue laws, how disposed of 1705 Personal Property defined 1405 consigned, how assessed 1438 tax, on what lien 1413 delinquent tax, added to tax on real property 1530 seized and sold 1560 1046 GENERAL INDEX. REVENUE— Continued. Personal Property, sale at public auction 1561 sale, when 1562 fees of collector for sale 1563 title in purchaser at sale 1564 remaining unsold 1565 assessed in one county, effect where owner removes 1575 poll-tax lien on , .' 1605 Poll-Taxes, who liable 1600 exemptions from 1600 blank receipts 1601 receipts to be charged to tax collector 1604 no other receipts to be used 1603 blanks delivered to assessor 1602 seizure and sale 1605 how conducted 1606 employer to furnish names of persons in his employ 1607 liability of debtor for creditor's 1608 rights of debtor paying 1609 receipt for 1610 receipt, evidence of what 1611 assessor to make returns 1613 unused receipts returned 1614 auditor credited with returned receipts 1615 poll-tax book 1616 officer charged with poll taxes not collected 1617 how name erased from book .... 1618 how divided between territory and county 1619 Property, what, subject to taxation 1400 assessed at full cash value 1425 list of, subject to taxation 1428 statement of, to assessor 1429 value, how ascertained where party refuses statement 1433 of absent or unknown owner how assessed 1434 consigned, how assessed 1438 partnership, where assessed 1442 corporation, where assessed 1442, 1463 of deceased person, to whom assessed 1443 in litigation, to whom assessed 1448 willfully concealed, how assessed 1449 escaping assessment previous year how assessed 1450 railroad and telegraph lines 1463 Publication of tax collector's notice 1516 delinquent list 1530 notice with delinquent list 1531 how made 1532 to designate what 1533 affidavit and copy of, filed with whom 1535 of notice of sale of personal property 1562 of amendment to delinquent list 1701 Purchaser, at tax sale, who 1539 failing to pay, property resold 1542 bid of such, rejected at all subsequent sales 1543 to receive certificate 1545 lien of territory for taxes vests in 1547 when entitled to deed • • 1553 deed conveys what title • • • 1557 of personal property sold for taxes 1564 GENERAL INDEX. 1047 REVERSION, owner may sue for injury to inheritance 2880 REVIEW, WRIT OF, appeal 5006 application for 4963 costs 4911 defined 4961 form of 4964 hearing 4969 issue of 4962 judgment roll 4971 jurisdiction, district court 3830 jurisdiction, supreme court 3816 new trial 5006 practice, rules of - 5005 return, defective, perfecting 4969 return, generally 4956 review, extent of , 4968 service of 4967 stay of proceedings 4966 when may issue and be heard 5000 REVISED STATUTES, divisions of 1 when take effect 2 part first, known and cited as political code 100 part second, known and cited as civil code 2400 part third, known and cited as code of civil procedure 3800 part fourth, known and cited as penal code 6300 effect of, upon past offenses 19 REVIVOR, repeal does not operate as 17 REVOCATION of power of attorney 3003 power of, when deemed executed 3018 of wills. See Wills. REWARDS may be offered by governor 180 acceptance of, by executive officer 6383 appointment by public officer for 6387 for apprehension of fugitives 8415 for deputation, officer taking 6387 RIGHT OF WAY acquired by establishing highways 860 over highways to certain corporations 863 proceedings, to procure, for roads 930 conveyances of 934 across" railroads, ditches, canals, etc 935 for toll bridges ' 1081 for toll roads 1027 RIGHTS, person of unsound mind cannot waive 2412 in water 3155 RIOT, armed force to suppress, must obey whom 7405 arrest of persons refusing to disperse 7404 defined ; 6950 justifiable homicide committed in repressing 6570 magistrate must disperse 7403 magistrate refusing to disperse 6956 officer to certify names of persons resisting 7401 power of officer to suppress 7400 punishment of 6951 remaining at, after warning to disperse 6955 RIVERS, obstructing 6910 ROADS, BRIDGES AND HIGHWAYS, what are 850 Bridges, are highways 850 erection and maintenance of 945 1048 GENERAL INDEX. ROADS, BRIDGES AND HIGHWAYS— Continued. Bridges, when county may aid in constructing 946 construction and repair of 947 report of road officers to include .... 952 notices on, and penalty for disregarding 973 over streams, how constructed by toll road companies 1031 Toll, when board to grant authority to construct 1070 same , 1092 notice must be proved 1071 duty of commissioners granting authority to construct 1072 license tax and rates of toll 1073 report of owners of 1074 inquiry of commissioners, fixing tolls 1075 when to direct license to issue 1076 commissioners to fix rates of toll 1038 license tax 1038 bond of owner, damages 1039 when deemed real property 1120 liable for debts 1121 may be attached and sold under execution 1122 purchaser must execute bond 1123 one per cent, of, to be paid into school fund 1124 owners of, must make oath to amount 1125 apportioned among the counties 1126 owner of franchise failing to pay one per cent 1126 exercising riorhts after notice of forfeiture for such failure, penalty . . 1127 keeping of, without license 1128 failure to pay taxes or keep in repair 1129 right may be made exclusive for one mile on each side 1130 damages sustained by the traveling public, a lien 1131 bond of owner or keeper of 1077 when, meets two counties 1078 commissioners interested in, to be disqualified 1079 within one mile of another 1080 how lands are required for use of 1081 rates of toll to be posted 1082 revenue derived from license tax • • • 1083 banks to be kept in repair 1084 applications for leave to construct 1090 hearing of application 1091 action of commissioners thereupon 109^ use of highways for 1094 commissioners granting authority, may require what 1093 completion of rate of toll, and license tax 1095 persons exempt from paying toll 1096 penalty for avoiding toll \ county may purchase 1098 license for 1643 where assessed 1444 Highways, enumeration of °50 origin of 851 abandonment of § ^2 public easement acquired by establishing 860 sidewalks may be constructed on °6i trees may be planted on land adjoining 862 county commissioners, duties of .• • °70 petition to alter or discontinue, etc., to be made to commis- sioners 9^0 GENERAL INDEX. 1049 ROADS, BRIDGES AND HIGHWAYS— Continued. Highways, width of 932 crossing railroads, canals, or ditches 935 removal of encroachments 960 notice to remove encroachments 961 penalty for not moving encroachments 962 if encroachment denied, action for nuisance to be brought. . . . 963 if encroachment not denied, how removed 964 gates not allowed on 965 penalty for leaving gate open 966 penalty for obstructing or injuring 967 same 970 removal of fallen trees from 971 unauthorized felling of trees 972 destroying shade or ornamental trees on 974 application of penalties 975 road laws in force not affected 976 commissioners may grant, for toll roads 1027 condemnation of, for toll roads 1028 Roads, abandonment of 852 duties of clerk relative to 853 districts, how defined and described 871 fund for 874 poll tax 880 poll tax, levy of 882 poll tax receipts 883 property tax 886 cities are road districts 887 work on 900 penalty for loss of time in labor on 902 delinquent labor on 905 excuse from labor on, no exemption 904 who may apply for change : 920 what petition for change must show 921 petitioners to give bond for costs 922 commissioners to order change and appoint viewers 923 appointment and duties of viewers 924 report of viewers 925 report of viewers, when not to be approved 926 viewers and surveyors; how paid and on what certificates. . . . 927 proceedings of commissioners on hearing report 928 effect of, and proceedings on approval of viewers' report 929 proceedings to procure right of way 930 awards, by whom and how paid 931 width of 932 private, how opened 933 decrees of condemnation to be recorded 934 crossing railroads, canals or ditches 935 fence, to be removed how 936 changing direction of road 937 removal of encroachments 960 notice to remove 961 penalty for neglect 962 if encroachment denied, action for nuisance to be brought 963 if encroachment not denied, how removed 964 no gate allowed except where 965 penalty for leaving open gate and riding off the road 966 penalty for obstructing or injuring 967 1050 GENERAL INDEX. ROADS, BRIDGES AND HIGHWAYS— Continued. Roads, running water across road 968 neglect of ditch owner 969 penalty for injuring milestone or guide post : . 970 removal of fallen trees 971 unauthorized felling of trees 972 destroying shade or ornamental trees 974 application of penalties ' . 975 laws concerning, now in force 976 Toll, notice of and application to construct 1020 hearing application 1021 action of commissioners 1022 commissioners, how appointed for other counties, and by cor- poration 1023 laying out 1024 compensation of commissioners; map, and report 1025 branches and extensions 1026 acquiring lands by grant 1027 appropriation of damages for highways taken for 1028 application, when unnecessary . . 1029 orchards and gardens 1030 one road corporation using road bed of another 1032 how to be constructed 1033 may relay, with what 1034 guide posts 1035 inspection certificate and completion 1036 erection of gates, etc 1037 commissioners to fix rates of 1038 license tax 1038 bond of owner, damages 1039 abandonment of 1040 county may purchase 1041 appraisement and award, how made and its effect 1042 persons exempt from paying 1050 inspection of 1055 closing gates and penalty 1056 defects in, to be reported 1057 enforcing obedience to notice and requirement 1058 fees of overseer, how paid 1059 Franchise when deemed real property 1120 liable for debts 1 121 may be attached and sold under execution 1122 purchaser must execute bond . 1123 one per cent of gross proceeds of toll roads, bridges and ferries to be paid to school fund 1124 owners must make oath to amount 1125 apportioned among the counties 1126 owner of franchise failing to pay • 1126 exercising rights after notice of forfeiture for such failure .... 1127 keeping roads, etc., without license ■ • • • 1128 failing to pay taxes and keep in repair 1129 right may, be made exclusive for one mile on each side 1130 damages sustained by traveling public, a lien 1131 Road Overseers, bond and oath of 872 duties of 873 to direct labor on roads 880 commutation fee, in lieu of such labor, may be paid to 880 to make list of inhabitants 881 GENEKAL INDEX. 1051 ROADS, BRIDGES AND HIGHWAYS— Continued. Road Overseers, same 884 to alter and correct such list from time to time 885 must not require person to work out of district 900 to supervise labor on roads 903 persons excused by, not exempted 904 report of 905 special report may be required from 906 must return unexpended moneys 907 penalty for failing to report 908 may cause removal of fences 936 bridges under the control of 945 when one fails to repair bridges 948 same • 949 report of, to embrace bridges 952 may order removal of encroachments from highways 960 may remove encroachments 962 same 964 when may maintain action to abate nuisance 963 may put up certain notices on bridges 973 may recover penalties imposed 975 to inspect toll-roads, when 1055 duty of, when not in repair 1056 same 1057 same 1058 fees of 1059 Leasing Roads, when commissioners may 986 term of lease 986 order to lease, when 987 publication of notice 987 sureties of bidders 988 lease, how executed and where filed 989 bond of lessee 989 qualifications of sureties ' 990 condition of road, duty of lessee 991 tolls where collected 992 rates of tolls must be posted 992 number of gates must be specified in lease 992 rates of toll must be specified in lease 993 running gate 993 road lease still a county road ; . . . 994 who not to be charged toll 995 cancellation and forfeiture of lease 996 tolls, on what chargeable ! 997 what order for lease must specify 998 what bid must specify 998 award of lease 999 conditions in lease 1000 width of road 1000 bridges 1000 lease does not discharge from road labor 1001 ROBBERY, assault to commit 6703 defined 6590 jurisdiction of indictment for, in certain cases 7488 punishment of 6592 what fear may be an element in 6591 ROLL, judgment, what to contain : 7996 ROLTT. See Unlawful Assembly. defined 6952 ! 1052 GENERAL INDEX. RULE OF CONSTRUCTION. See Construction. indictment, words used in 7684 RULES OF PLEADING. See Pleading. RULE OF LAW, of decision, common law of England is, when . . 18 when laws of territory silent 18 RULES, effect, when take 3864 power to make 3863 SALARIES AND FEES OF COUNTY OFFICERS. paid quarterly 2120, 2158 must be audited by commissioners 2120, 2158 no officer to retain any moneys for salary or fees 2120 all moneys to be paid in full into treasury 2120 Classification of counties 2147 Commissioners, compensation 2121, 2159 general provisions , 2121 special provisions 2122 Judge, Probate, fees of 2123 fees of clerk of probate court ... 2123 Treasurer, salary, general provisions- 2152-2156 special provisions 2157 Sheriff, fees of 2126 for services collecting licenses 2157 board and care of prisoners 2152-2156 jailer 2152-2156 salary, general provisions 2152-2156 Recorder and Auditor, fees of 2128 as auditor, fees 2128 recorder and auditor, salary of 2152-2156 as clerk of board of commissioners 2152-2156 Assessor and Tax Collector, compensation of 2152-2156 how audited and paid 2158 District Attorney, salary of, general provisions 2152-2156 mileage of 2157 salary of, from territory 2157 Surveyor, fees of 2132 salary, special provisions 2132, 2159 Coroner, fees of 2133, 2159 School Superintendent 2152-2156 traveling expenses of 2157 Justice of the Peace, fees of 2135, 2159 Constables, fees of 2136, 2159 officers to perform services when fees are paid 2137 no charge or fee under writ of habeas corpus 2138 tables of fees to be posted 2139 execution for fees 2140 "folio" how construed *• . • 2141 only one mileage 2142 no witness fees allowed to attorney in case 2143 receipt for fees may be required 2144 no officer to receive any fees or compensation not enumerated . . 2145 witnesses for people cannot demand fees in advance 2146 Territorial Officers, how paid 451 attorney general 251 controller 221 treasurer 241 officers of insane asylum — 762 superintendent of asylum •• • • 760 GENERAL INDEX. 1053 SALE. See Execution; Foreclosure; Partition-, Purchaser; Transfer. floating lumber 833 unclaimed property 1161 for taxes. See Revenue. stock for delinquent assessments 2624 when corporations may purchase 2626 franchise of corporations under executions 2642 not to effect powers of, of corporations 2645 of homestead on execution 3052-3054 rights and obligations of seller 3252 seller as depositary before delivery 3252 of delinquent mining property 3309 power conferred by mortgage 3355 of pledged property by pledgee 3418 of pledged property by auction 3423 on demand of pledgor 3425 surplus, to whom paid 3426 judicial, of pledged property 3429 of real property, lien of vendor 3441 when deemed waived 3441 extent of lien of vendor of real property 3443 seller of personal property 3443 by defendant in an action to defraud 6520 fraudulent, by debtor 6519 fraudulent, by married person 7098 penalty for certain officers purchasing at 6384 Agreement for not revocation of will 5738 Delivery where made 3250 expense of transportation 3251 Warranty of title to personal property 3245 on sale by sample 3246 other marks 3247 of provisions for domestic use 3248 SALOON", permitting minors to gamble in 6784 minors frequenting 6784 SAMPLE, sales by 3246 SANITY. See Insanity. SATISFACTION. See Accord. of judgment against corporations 2642 of judgment against homestead 3039 of recorded mortgage 3361 penalty for refusing, of mortgage 3364 affidavit of payment of taxes before 3365 SATISFACTION, ENTRY OF, acknowledgment, attorney by . . . . 3998 acknowledgment, before whom / 3913 SCHOOL FUND. See Funds. SCHOOLS, PUBLIC. territorial general school fund 620 one per cent of gross proceeds of toll roads, bridges and ferries to be paid to school fund 1124 owners must make oath to amount 1125 apportioned among counties 1126 county school tax 621 tax, how assessed and collected 622 no fees paid for collecting, holding, or disbursing school tax. . 623 to constitute county school fund 624 all fines and forfeitures to be paid into said fund 625 1054 GENERAL INDEX. SCHOOLS. PUBLIC— Continued. Territorial Superintendent 630 general duties of 631 to report to governor, when 631 to report number of school children 631 number attending school and average attendance 631 amount of money raised and expended for school purposes . . . 631 to present suggestions 631 to have blanks and copies of school law printed and distrib- uted 631 to decide disputed points in school law ' 631 to deliver to successor all property, books, documents, records, reports, and papers belonging to his office 631 to visit the several counties 631 Territorial Treasurer to receive and hold territorial general school fund 640 to apportion school moneys to the several counties 641 to transmit the same to the county treasurers 642 County Superintendent elected in counties having more than five districts 650 to hold office two years 650 county commissioners to fix compensation 650 contingent expenses of office 650 oath of office 650 vacancy, how filled 650 probate judge when ex-officio county superintendent 650 general duties of 651 to hold examinations and grant certificates to teachers 651 to grant permits, when 651 to distribute blanks, reports, forms, and school laws 651 to keep files and record of official acts 651 to make annual reports to territorial superintendent 651 report, what to contain 651 penalty for failure to report . . , 708 to appoint trustees, when 651 to draw warrant for books furnished indigent children 651 to collect fines not paid over by officers receiving same 651 to visit schools of county , 651 to preside at teachers' institutes 651 to make regulations for government of teachers and pupils . . 651 to adopt text books with consent of commissioners 651 to keep record of standing of teachers examined 651 to report when 651 to preserve and deliver to successor all records, books, docu- ments and papers belonging to office 651 to apportion county school moneys among districts of county 651 apportionment, when made 651 apportionment to new districts 651 when to draw requisition in favor of school district 651 County Auditor to draw warrant, when 652 County Treasurer to hold school fund and pay warrants of auditor 653 Compulsory Education 672 New Districts, how formed 660 change of boundaries of 660 requisites of petition 660 notice to trustees of districts affected 660 hearing before commissioners 660 notice to be posted in district 660 GENEKAL INDEX. 1055 SCHOOLS, PUBLIC— Continued. New Districts, public meeting to be called 660 exception in Ada county 660 independent districts 729-736 • Trustees, when elected • 665 term of office 665 election, how conducted 666 return of election 666 general duties of 667 to employ and discharge teachers 667 to visit schools of district 667 to furnish fuel, maps, apparatus, etc., 667 to make annual report to county superintendent 667 report, what to contain 667 quorum of board 667 to choose clerk 667 charge of school property 667 may receive conveyance of real property in trust 667 may convey school house or site, when 667 may purchase, hire and repair school houses 667 no trustee to be pecuniarily interested in any contract 667 election for special tax 667 election, how conducted 667 levy of tax '. 667 compensation of tax collector 667 rate bill 667 no pupil excluded for inability to pay 667 disorderly and insubordinate pupils 668 Census Marshal, when appointed 669 oath of 669 duties of 669 to list whom 669 report 669 trustees to transmit report of census marshal to county super- intendent 669 compensation of census marshal 670 oath of trustees 671 Compulsory Education, how to be avoided 672 Certificates, examination of teachers for 680 when certificate not granted 680 grades of 680 teacher must have 681 territorial certificates 682 requirements for 683 fee for 684 county treasurer furnished with list of those found competent 684 expenses of examination paid by county 685 Report to be furnished to and kept by teacher 686 to be transmitted to county superintendent 686 no teacher to draw salary until report received by county su- perintendent 686 School register, t.o be furnished to and kept by teachers 686 Teachers, duties of 687 Teachers' Institutes, when may be held 695 notice of 695 duty of teachers and all persons holding certificates to attend 696 schools adjourned for 696 pay of teachers not suspended during 697 105G GENERAL INDEX. SCHOOLS, PUBLIC— Continued. Teachers' Institutes, expenses of, how paid 698 sectarian books or doctrines not to be used or taught 705 non-resident pupils 706 School year, when commences and ends 707 School month, what is 707 School bonds, question of issue may be submitted to electors of district 720 election, how held 721 ballots 721 two-thirds vote necessary 721 bonds and coupons, how signed 721 to be registered by county treasurer 721 public notice of sale of bonds 722 must not be sold at less than par 722 sold at private sale, when 722 proceeds paid into county treasury to credit of district 722 faith pledged for payment, and district may be sued 723 levy of tax for payment of interest 724 sinking fund to pay principal 724 payment and cancellation of bonds 725 county treasurer to pay interest 726 printing of bonds and coupons 727 failure of trustees to pay proceeds of bonds into county treas- ury, felony 728 formation of independent school districts 729-736 SCIRE FACIAS abolished 4611 SCRIP, officers prevented from dealing in 368 penalty for certain officers dealing in 6384 SEAL, denned 13 great, custody 190 great, affixed to what 191 great, fees for affixing 196 notary public 289 commissioner of deeds 300 executive officers 448 great 449 of officer taking proof or acknowledgment 2962 corporate or official, how affixed 3226 private, abolished . 3227 court, of 3873-3875 custody of, clerk to have 3874 execution, necessary on 4471 executor, etc., appointment of, necessary for 3875 guardian, etc., appointment of, necessary for 3875 judicial notice of 5950 private 5989 probate, certificate of, necessary for 3875 public 5989 record copy of, necessary for 3875 telegraphed, how 4895 writ, necessary for • 3875 forging of public or corporate 7030 SEARCH WARRANT, by whom served 8397 complainant must be examined on oath 8393 denned 8390 deposition what to contain 8394 form of 8396 GENERAL INDEX. 1057 SEARCH WARRANT— Continued. if grounds upon which warrant is issued are controverted .... 8 106 maliciously procuring 6533 officer must give receipt for property taken 8402 property taken, how disposed of . . 8403 property, when to be restored 8407 return of 8404 to be returned by magistrate to district court . . . 8408 upon what grounds may issue 8391 upon what grounds not to issue 8392 when defendant may be searched in presence of magistrate . . 8409 when may be served at night 8400 within what time must be executed 8401 SEAT OF GOVERNMENT. See Capital of Territory 105 SECRET, extortion by threat to expose 7081 SECRETARY OF TERRITORY, books delivered to, at close of legislature 124 to authenticate as laws, bills remaining three days with governor 154 report 160 civil executive officer 170 custody of certain records 190 duties 191 to distribute statutes and journals 192 to distribute reports of supreme court 193 mark books distributed 194 expenses for, etc., how paid 195 official bond 197 must be notified of qualification of notary public 294 qualification of commissioners of deeds filed with ... 303 to transmit to commissioners of deeds copies of certain laws . . 305 must reside at Boise City ' 325 oath of office of officers filed in office of 356 official bonds filed with : 391 duty as to territorial election returns 604 seizure for taxes. See Revenue. prerequisites before issuing certificate of incorporation 2583 when must issue certificate of incorporation 2584 SECURITY for alimony 2475 by way of lien. (See Lien.) 3325 for what lien may be 3332 for obligation, does not prevent direct enforcement 3335 by way of pledge. See Pledge. indorser having, not entitled to notice of dishonor 3504 SECURITY FOR APPEARANCE OF DEFENDANT, on post- ponement of examination 7569 SECURITY FOR APPEARANCE OF WITNESSES, infants and married women may be required to give 7586 on refusal to give witness to be committed 7587 when taken and required 7584 witness, when unable to give, what 7588 SECURITY TO KEEP THE PEACE, breach of, how prosecuted. 7375 effect of giving or refusing to give 7386 evidence of breach of 7392 examination of complainant and witnesses 7381 information of threatened offense 7380 must be filed in clerk's office 7388 person committed for not giving, how discharged 7387 68 1058 GENEEAL INDEX. SECURITY TO KEEP THE PEACE— Continued. proceedings on charge being controverted 7383 warrant of arrest 7382 when broken 7390 when not to be required 7393 when required , 7385 when required for assault, in presence of court 7389 See Peace; Threatened offense. SEDUCTION, guardian, action by 4098 parent, action by 4098 private sittings of court 3861 woman, unmarried, may sue for 4097 evidence on trial for 7869 SELF DEFENSE, homicide committed in, justifiable 6570 SENTENCE, arraignment for 7989 defendant must be present for 7982 extent of punishment, how considered 7992 if defendant on bail does not appear for , 7984 may forfeit bail, and issue bench-warrant, if defendant does not appear 7984 to be brought before court for 7983 what may be shown against 7990 SEPARATION, custody of child in case of 2534 SERVANT, homicide in defense of 6570 See Master and Servant. SERVICE. See Attachment; Execution; Notice; Summons. notice of contested election 126 process by sheriff 1871 process by coroner 1886 process by elisor 1887 process by constable 2090 appearance equivalent to 4149 association, on 4112 attorney entitled to be served for party 4892 complaint, copy 4143 corporation, on 4144 mail, by 4890 mandate, writ of 4988 non-resident 4893 notices of 4889 prohibition, writ of 4988 proof of 4148 publication by 4145 review, writ of 4967 several defendants, some served 4147 summons, of 4349 summons, of, gives jurisdiction 4149 telegraph by 4895 of articles of impeachment 7428 of articles of impeachment, how made 7429 of bench warrant 7652 of coroner's warrant 8386 of notice of appeal 8046 of notice of application for bail 8106 of search warrant 8397 of summons on corporations 8224 of warrant of arrest by telegraph 7553 of writ of habeas corpus 8345 GENEBAL INDEX. 1059 SERVIENT TENEMENT. See Easements and Servitudes. SERVITUDES. See Easements and Servitudes. SETTING ASIDE INDICTMENT, effect of resubmission 7733 objections, when waived : 7731 when heard 7732 when on motion 7730 SETTING FIRE. See Arson. SETTLEMENT, final, of tax collector with auditor 1569 assessor with auditor, for poll taxes 1612 county treasurers with controller 1670 penalty for treasurers neglecting to make 1674 county auditor with controller 1675 failure of county auditor to make 1677 controller to deduct fees 1678 county officers with auditor 1708 county treasurer with auditor 1850 SHADE TREES, injuring 7170 See Trees. SHARES, levy on, in corporation 4306 SHARES OF STOCK. See Corporations. frauds in subscription of 7114 SHEEP, altering brand of 6883 feloniously taking, grand larceny 7048 Herding Sheep within two miles of dwelling house 1210 liability for so doing 1211 when sheep treated as estrays .. . 1212 Sheep Commissioner, when appointed, oath and bond of 1213 may summon assistance 1214 certificate of healthy condition of sheep 1215 to make certificate, and record of condition of every brand of sheep in his county 1216 must examine sheep when 1217 when certificate annulled 1217 complaint malicious, party making must pay costs of exami- nation 1217 driving sheep without certificate 1218 owners desiring to move sheep, duty of 1219 failing to obtain certificate 1220 driving infected sheep 1221 scab on sheep, protection against 6885 moving infected sheep 6886 lien on sheep for services of 1222 protecting sheep from dogs 1205 SHERIFF, deliver persons to insane asylum 777 fees of such 780 floating lumber, when turned over to 832 office at county seat 1822 reside at county seat 1825 prohibited from practicing law 1827 bonds 1828 duties • 1871 service and execution of process 1872 return evidence 1873 penalty for non return of process 1874 refusing to levy • 1875 damages for refusing to pay over money 1876 liability for permitting to escape 1877 liable for rescue 1878 1060 GENERAL INDEX. .SHERIFF— Continued. no action for escape or rescue after recapture 1879 direction to, must be in writing 1880 when office vacant 1881 when justified in executing process 1882 officer to exhibit process ■.'. 1883 as crier 1884 service on, how made 1885 process, how served where party 1886 arrest of sheriff, how confined 1890 elisor has powers of sheriff 1891 credentials of new sheriff 1892 to deliver property and process to successor 1893 refusal so to do ; . . . . 1896 acknowledgment of such transfer 1894 former sheriff to complete service of process begun 1895 other duties 1888 coroner, when to discharge duties of 2085 court room must provide 3872 indemnity, notice to sureties of action brought against him, effect of 4933 answerable for safe keeping of prisoners 8530 collecting fine and neglecting to pay over 6978 commitment to for examination, form of 7570 duty of, after execution of death sentence 8022 duty of, at execution of death sentence 8021 duty of, on receiving copy of judgment of imprisonment 8008 how compensated for transporting prisoners to territorial prison 8504 performing services for territory, how compensated 1889 may command persons to assist, in overcoming resistance to process 7400 papers served on, for prisoner 8537 refusing to receive or arrest parties accused of crime 6510 suffering convicts to escape 6455 to receive all persons duly committed 8539 to receive prisoners committed by United States courts 8529 to summon special grand jury, when .... 7623 warrant for execution of death sentence to be delivered to ... 8009 warrant of arrest directed to 7523 when not to receive prisoners 8540 SHERIFF'S SALE. See Execution. SIDEWALKS on highway, subject to what restrictions 861 trespass on, penalty 861 SIGNATURE defined 16 of ex-officio officers 453 of officer taking acknowledgment 2962 in indorsement of negotiable instrument 3469 admitted when 4199-4202 obtaining by extortionate means 7084 SINGULAR includes plural 16 SITTINGS, public and private 3860 SKILL. See Care. SLANDER, pleading 4215 SOIL, carrying away from the land "of another 7158 SOCIETIES. See Corporations. SOLEMNIZATION OF MARRIAGE. See Marriage. SOLE TRADER, proceedings 5850-5860 GENEEAL INDEX. 1061 SONGS, singing lewd, in public 6840 SPECIAL PROCEEDINGS, appeal 5006 costs 4901 defendant in, who is 4955 judgment in 4956 jurisdiction, district court 3830 jurisdiction, supreme court 3815 motion in 4956 new trial , * 5006 order in 4956 plaintiff, who is 4955 practice 5005 SPECIAL VERDICT. See Verdict. STALLIONS, when may run at large 1240 when may not 1241 may be taken up, notice to owner 1242 castrated, when 1242 when owner unknown, notice posted 1243 STATEMENT on contest of election to legislature 126 to assessor 1429 commissioners to furnish blanks for assessor 1430 assessor to fill out, such, how 1431 assessor may examine witness 1432 penalty for refusing to give to assessor 1433 of taxable property in other county 1436 to clerk of board of commissioners 1454 penalty for failure to make 1455 auditor to transmit to controller, of taxes charged to collector. 1504 tax collector to file, with auditor 1520 penalty for neglecting 1521 of delinquent taxes forwarded to controller 1529 of unpaid taxes filed with commissioners 1571 of ihoneys paid by county treasurer, to controller 1680 annual of commissioners 1787 joint, by auditor and treasurer to commissioners 2010 STATIONERY for territorial officers, how paid 214 STATUTES in derogation of common law, how construed 4 repeal of certain 19 enactment 150 when take effect 155 effect of amendment to 157 repealed, not received 158 creating criminal offense, effect of repeal 159 amending section of repealed, void 158 distribution of • • . • 192 minor cannot disaffirm contract made by authority of special v 2409 insane person cannot make contract without express authori- ty of 2409 authentication of, of other states 5970 books containing, admissible in evidence 5969 "continued in force" 17 definition of 5967 foreign, as evidence 5969 inconsistent with revised statutes every, repealed 17 probate, how pleaded 4214 public and private, defined 5967 recitals in, evidence of what 5972 private how pleaded 4214, 7690 1062 GENEEAL INDEX. STATUTE OF FRAUDS. See Evidence. STATUTE OF LIMITATIONS. See Limitations. STAY OF EXECUTION, certificate of probable cause, when filed, acts as 8048 STAY OF PROCEEDINGS, certificate of probable cause, operates as. 8048 pending examination on commission 8181 when doubt arises as to sanity of defendant ' 8195 See Appeal. QnPTn a t Qpp Tjarcenu STEAM BOILERS AND ENGINES, accident from negligent use, causing death 6908 STEER, altering brand 6867 STOCK, amount subscribed before incorporating 2582 oath of officer to subscription of 2583 holder of, defined 2586 entitled to, how many votes 2588 majority necessary to adoption of by-laws 2588 majority necessary to election 2594 two-thirds necessary to amend by-laws 2591 two-thirds necessary to removal of officers 2597 majority constitutes quorum 2599 dividends not made from capital 2596 capital not increased or diminished, except 2637 on dissolution, divided 2596 certificates of, how issued 2610 transfer of 2611 transfer of, held by married woman 2612 transfer of, of non-residents 2613 hypothecated, how voted 2609 sale of delinquent 2624 jurisdiction over 2623 may buy its own, when 2626 disposition of, where corporation purchaser 2627 action for recovery of, sold for delinquent assessments 2630 STOCKHOLDERS. See Corporations. STOCK RAISERS, persons engaged in slaughtering cattle must keep book of description 1195 same, open to inspection 1195 other persons must keep hides 1196 may demand exhibition of 1196 penalty for failure 1197 same, a misdemeanor 6884 brands of. See Marks and Brands. STOCK, PROTECTION of, about quartz mills 1335 reservoirs and dumps to be enclosed 1335 liabilitv for failure 1336 STOCK RANCHER, who is 1230 duty to use diligence 1231 liability for failure 1231 using animals in his charge 1232 using running branding iron 6868 slaughtering cattle more than half mile from house or corral 6869 skinning cattle found dead 6870 slaughtering unbranded cattle 6871 herding sheep on cattle range 6872 changing or defacing brands and marks 6879 driving stock from its range 6880 GENEKAL INDEX. 1063 STOCK RANCHER— Continued. driving stock of others from its range 6881 grazing herds on occupied lands 6882 penalty for violating Ch. Ill of Title VII of Political Code . . . 6883 failure to keep description and hide of cattle slaughtered 6884 scab on sheep 6885 moving infected sheep 6886 auctioneer of live stock 6887 conversion of estrays 6888 STOLEN PROPERTY, buying or receiving 7057 disposal of 8238-8242 STONE, carrving away from the land of another 7160 STREAMS, obstructing navigable 6910 STREETS, obstructing public 6910 SUBMISSION, arbitration to 5260-5269 controversy without action 5068-5070 SUBORNATION OF PERJURY. See Perjury. SUBPCENA issued by what officer of the legislature 145 requirements 145 service 146 refusing to obey 147 assessor may issue 1432 county boards of equalization 1479 commissioners may issue 1768 generally 6035-6047 justice's court 4771 coroner may issue for witnesses 8379 defined, and who may issue 8148 disobedience to 8153 form of 8149 who must issue 7571 who must issue in justices' courts 8313 See Evidence SUBROGATION, RIGHT OF inferior lienor to 3338 SUBSEQUENTLY ACQUIRED TITLE passes by operation of law 2928 passes by will 5750 SUBSCRIBING WITNESS. See Evidence. SUBSCRIPTION includes mark 16 See Signature. SUBSTANTIAL JUSTICE, the rule 4207 SUBSTITUTES, road work by 902 SUBSTITUTION of parties .... 4108 SUCCESSIVE ACTIONS may be brought 4925 SUCCESSION, rights of children of annulled marriage 2452 posthumous children 2833 future interest 2834 words of, unnecessary to pass fee 2905 liability of persons acquiring property by 2937 child of testator born after will takes by 2833 child of testator unprovided for by will takes by, when 5744 property of intestate how disposed of 5751 defined 5700 real and personal property pass by 5701 to whom property passes by 5701 distribution of property received by 5702 illegitimate child takes what 5703 mother of illegitimate child to take by 5704 exclusion from by advancement 5/Uo 1064 GENERAL INDEX. SUCCESSION— Continued. relatives of half blood, when take 5705 husband takes common property on death of wife 5712 wife takes one-half of common property on death of husband. 5713 by representation v . . . . . 5714 aliens may take by 5715 when territory takes by 5717 SUCCESSOR, refusal of public officer to surrender records to 6389 SUCCESSORS in equal degree to be equally 5705 of justices of the peace 4765 SUFFRAGE, hindering elector in exercise of right of 6364 See Election. SUIT, conspiracy to maintain 6540 SUMMARY PROCEEDINGS, removal of officers by 7459 SUMMONS alias 4141 contents of 4140 defendants, several, part only served 4147 eminent domain 5217 form of 4140 issue, may, within one year 4139 judgment roll, part of 4456 joint debtors, after judgment 4860-4862 jurisdiction acquired by service 4149 justices' courts 4655-4660 lost, alias, may issue 4141 partition, service in 4565 publication, service by 4145 return 4143 several defendants, some served 4147 service, admission of 4148 service, appearance equivalent to 4149 service, copy, complaint, etc 4143 service, gives jurisdiction 4149 service, not personal, allowing appearance after judgment . . . 4229 service, proof of 4148 service, publication by 4145 service, return 4143 service, several defendants, service on some, effect 4147 telegraph, service by 4895 district courts. See Courts. against corporations 8222 form of 8223 of legislature, refusing to obey 6414 service of 8224 SUNDAY, a holiday 10 SUPERINTENDENT OF INSANE ASYLUM. See Insane Asy- lum. of public instruction. See Schools. of public schools. See Schools. SUPPLEMENTARY TO EXECUTION PROCEEDINGS, gen- erally 4504-4511 SUPPORT TO LAND, right to lateral and subjacent 2884 SUPPRESSION OF RIOTS, proceedings 7400-7408 SUPREME COURT. See Courts. SUPREME COURT CLERK. See Clerk of. SUPREME COURT JUDGES. • See Judges. SUPREME COURT REPORTS, distribution of 193 GENEEAL INDEX. 1065 SURETY. See Security. justification of, on official bond 397 on official bond, insufficiency 406 on official bond, liabilities 407 contribution 411 discharge 412 release 414-416 effect of discharge , 419 of assessor's bond, liability 1457 of tax collector, action against 1522 indorser for accommodation has rights of 3480 See Bonds; Undertaking. indemnity, on notice by sheriff of action against him, effect. . 4933J liability inter se, settling by action 4928 qualifications of 4934 subrogation on payment of judgment 4499 SURGEON, who may practice as. . 1298-1298e SURPLUS, conveyance in excess by owner of life estate 2930 of advancement by testator during lifetime, effect of 5707 SURPRISE, amendment on ground of 4229 new trial for 4439 SURRENDER OF DEFENDANT by bail, how made 8123 defendant may be arrested for purpose of 8124 money to be refunded on 8125 SURVEY for change of road 937 by county surveyor 2067 SURVEYOR, COUNTY, to make surveys on application 2067 surveys of lands in two counties 2068 surveys by true meridian 207O may employ assistance and collect therefor 2071 surveys, how made, where interested 2072 bonds 1828 SURVIVAL OF ACTION, what actions survive 5552 limitation as to actions that survive 4071 SUSPENSION of power of alienation - 2836 of execution 8012 of officers by court of impeachment 7438 SWITCH TENDER, violation of duty by 6926 TAX COLLECTOR, auditor to deliver license to 1633 licenses to be procured from 1636 to commence suit for delinquent licenses 1637 duties in relation to licenses 1638 to settle with auditor, when 1640 to collect fees for licenses 1641 duplicate assessment-book delivered to 150& auditor to charge, with full amount of taxes 1504 to publish notice specifying what 1515 mark date of payment of tax 1517 give receipt to person paying tax 1518 settle with auditor 1520 penalty for failing to make settlements 1521 action against 1522 to collect additional per cent on delinquent taxes 1523 deliver to auditor delinquent list 1525 list to contain what 1526 final settlement with auditor • 1527 charged with amount of delinquent taxes 1528 publish delinquent list 1530 1066 GENEEAL INDEX. TAX COLLECTOR— Continued. publish notice in connection with delinquent list 1531 duty after publication of delinquent list 1535 fifteen per cent additional on delinquent taxes 1536 sale for payment of taxes 1537 time of sale 1538 sell what property first 1539 resell property, when 1542 duplicate certificate of purchase at tax sale 1545 duty on sale for taxes 1546 deed to purchaser at tax sale . 1553 deed to recite what 1555 title conferred by deed 1557 collect delinquent personal property tax by seizure and sale . . 1560 fees and mileage 1563 compare delinquent list 1567 oath administered to 1568 final settlement with auditor 1569 affidavit on returned delinquent list 1570 when employ counsel 1575 must separately perform duties 1709 office at county seat 1822 reside at county seat 1825 bonds 1828 neglect of 6984 refusal to give name of employe to 6982 TAXES. See Revenue. TEACHERS. See Schools. TEACHERS INSTITUTE. See Schools. TECHNICAL WORDS. See Words. how construed 15 TELEGRAPH, how assessed 1460 service of, process by 4895 altering messages 7168 arrest by 7553 certified copy of warrant served by 7554 clandestinely learning contents of message 7207 disclosing contents of message 7167 forgery of messages 7032 injury to line 7136 operator, intoxication of 6924 operator, etc. , using information from messages 7206 opening sealed message 7169 postponement of message out of regular order 7205 TELEGRAPH COMPANIES. See Corporations. TELLER of insolvent bank receiving deposits 7119 of savings bank overdrawing 7118 TENANT. See Landlord and Tenant. TENANTS IN COMMON. See Parties; Partition. TENDER. See Offer of Performance. costs after 4909 generally 4870 receipt, payor entitled to 6111 TENSES, construction of 16 TERM OF IMPRISONMENT. See Imprisonment. TERRITORIAL PRISON, contract for keeping prisoners .... 8500, 8501 monthly settlements for 8502 when county jail becomes territorial prison 8503 GENERAL INDEX. 1067 TERRITORIAL PRISON— Continued. compensation for delivery of prisoners : 8504 commutation for good conduct 8505 forfeiture of commutation 8506 separate sentences 8507 restoration to citizenship 8508 territorial bounty to discharged prisoners . ., 8509 purchase of books for 8510-8512 TESTAMENT. See Wills. TESTATOR. See Wills. TESTIFY, includes every mode of oral statement on oath 16 TESTIMONY. See Evidence. how taken and authenticated 7576 in rebuttal, when to be offered 7855 of witness which he does not know to be true 6485 statement of, to be transmitted to governor 8010 witness need not know to be material to constitute perjury . . . 6483 TEXT-BOOKS to be used in schools 705 THEATERS, license for 1645 THING IN ACTION. See Chose in Action. assignment of 4091 THIRD PERSON contracts for benefit of 3221 remainder on estates for life of 2853 may enforce contract made for own benefit 3221 THREATENED OFFENSE, examination of complainant and wit- nesses 7381 information of 7380 person complained of, when to be discharged 7384 proceedings on charges being controverted 7383 security to keep the peace when required 7385 when commission of, feared, warrant of arrest to issue 7382 THREATENING LETTERS sending. 7210 sending, with intent to commit extortion 7085 THREATS, influencing elector by 6364 to influence juror or referee 6433 using, with intent to extort money 7085 what may constitute extortion 7081 TICKET. See Fare; Election. TIE VOTE, proceedings on 491 TIMBER. See Lumber; Trees. injuring or destroying 7158 cutting, penal damages 4531 TIME, certain limitations of, how affected by revised statutes .... 9 computation of , 11 of opening and closing polls 530 of payment of taxes, published in notice 1515 of sale to pay taxes, notice 1533 of sale to pay taxes 1534 when auditors settle with controller 1675 when treasurers settle with controller 1671 during which county offices open 1822 of commencing action for nullity of marriage 2451 as to certain causes for divorce 2463 for traveling to record personal mortgage 3398 judicial knowledge of 5950 of committing offense need not be stated in indictment 7682 1068 GENEEAL INDEX. TITLE by tax collector's deed 1557 of purchaser of personal property seized for taxes 1564 inventory of wife's property as notice of 2501 fee simple, when presumed to pass 2927 subsequently acquired, passes by operation of law 2928 subsequently acquired, passes by will 5749 to highway, passes by transfer 2934 instruments evidencing, declared by judgment, how proved for record 2991 by homestead declaration 3073 to homestead, how recorded 3087 by devisee 5748 by specific devise or legacy 5755 warranty of, to personal property 3245 lien does not transfer to property. (See Property.) 3333 claim of, defense to embezzlement 70o9 TOLL-FERRIES. See Ferries. TOLL-GATES, injury to 7134 TOLL-ROADS. See Roads, Bridges and Highways. TOLLS, on roads, who exempt 1050 on bridges, when not collected 1056 rate of bridge and ferry 1095 rate, to be posted 1082 on bridges, who exempt 1096 penalty for avoiding 1097 TON of hay, coal, etc.. to be full weight 7109 TOOLS, having burglarious 7022 having counterfeiting 7038 with intent to assault 7023 TORTS. See Wrongs. TOWN SITES on public lands who to enter at land office 2200 conveyances to claimants entitled 2201 notices of the entry 2202 statements of claimants, where presented 2203 adverse claim, how determined 2204 trial, evidence 2205 who deemed to have the better right 2205 interpleader 2206 pleadings 2206 claims, barred by failure to appear 2206 account of expenses of execution of trust 2207 expenses, a lien on the land 2207 payment before conveyance executed 2208 conveyance to claimants 2209 lot or block claimed by trustee 2210 officer holds in trust from time of entry 2211 costs of litigation 2212 specific performance of agreements 2213 successor in trust 2214 TOWNS AND VILLAGES, incorporation of 2324 trustees 2225 qualifications, etc 2226 oath, chairman, etc 2227 quorum of trustees, etc 2228 rules of trustees, etc 2229 corporate powers 2230 licenses and fines 2231 election, etc., of officers 2232 GENERAL INDEX. 1069 TOWNS AND VILLAGES— Continued. payment of debts and expenses 2233 power to borrow money » 2234 funding indebtedness 2235 sinking fund 2236 improvements 2237 taxes for general purposes 2238 assessment 2239 collection of taxes 2240 delinquent taxes 2241 cemetery 2242 by-laws and ordinances to be printed 2243 vacancies in trustees 2244 election board 2245 notice of election 2246 officers of election 2247 qualifications of electors 2248 polls, when to be kept open 2249 existing corporations 2250 TRADE-MARKS, counterfeiting 6862 definition of "counterfeited" 6864 selling goods bearing counterfeited 6863 TRAIN DISPATCHER, intoxication of 6924 TRANSFER. See Place of Trial. of stock, how 2611 of stock of married woman * 2612 of stock of non-resident 2613 future interests may pass by 2834 thing in action subject to 2891 not subject of 2900 right of re-entry subject of 2901 adverse claim 2902 Mode of, oral 2903 by grant 2904 Unlawful and fraudulent, instruments void against purchasers 3015 not void against purchasers having notice, unless fraud mutual 3016 power to revoke, when executed 3017 fraudulent, of personal property 3019 purchaser for value without notice 3023 presumed, when 3021 question of fraud in respect to, a question of fact 3022 of non-negotiable instruments 3600 liability of assignor 3601 TRANSCRIPT ON APPEAL. See Appeal. TRANSMISSION of papers on removal of action 7773 TREASURER, territorial or county, violating revenue law 6976 TREASURER, COUNTY, tax collector to pay to 1520 when to settle with controller and territorial treasurer 1670 penalty for neglecting to pay over money 1674 mileage and fees deducted by controller 1678 to file with auditor copy of controller's statement 1681 settlement with county auditor 1708 to pay warrants, in what order 1781 office at county seat 1822 bonds 1828 duty 1840 to receive no money unless on certificate of auditor 1841 must receipt for money 1842 1070 GENEKAL INDEX. TREASURER, COUNTY— Continued. mode of redeeming warrants 1843 registry of warrants when no funds ; 1844 notice of redemption of warrants 1845 what to territory and how published . . . . 1846 priority in payment of warrants 1847 funds reserved sixty days therefor 1848 settlements, when and how made 1850 must note interest paid on warrant 1849 report to commissioners . . . ; 1851 penalty for not reporting 1852 when, must sue district attorney 1853 when, must sue coroner 1854 disposition of property received from coroner 1855 not to loan public money or make general deposit 1857 commissioners may suspend 1858 no commissions allowed 1859 books and vouchers subject to inspection '. 1860 must permit auditor to examine books 1861 TREASURER OF INSANE ASYLUM. See Insane Asylum. TREASURER, TERRITORIAL, when to report 160 a civil executive officer 170 appointment, mode of and term of office 171 general duties 230 limitation upon receipt and payment of money 231 general fund consists of what 232 salary 233, 241 official bond 234 payment of warrants 235 payment in part for want of funds 236 books and transactions open to committee of legislature 237 committee may count money 237 when new treasurer appointed, controller must examine and adjust accounts 237 registration of warrants not paid for want of funds 238 must keep seal, copies authenticated therewith competent evi- dence 239 unlawful refusal to pay warrant, penalty 240 governor may count money 242 to reside at Boise City 325 prohibited from dealing in certain scrip 368 duties in certain cases 370 duties as to foreign insurance companies 2753-2758 TREES, ownership of, bordering on highway 860 may be planted on line of highway 862 liability for injury to such 862 injuring shade 7170 setting on fire 6921 TRESPASS. of animals within lawful enclosure 1320 lien on animals for damages 1320 natural obstruction may be examined by viewers 1320 owner of animal must pay damages 1321 party injured may take up animal 1322 proceedings to recover damages 1323 justice may appoint viewers 1323 pay of viewers 1324 sale of animals 1325 GENERAL INDEX. 1071 TRESPASS— Continued. fees of officers 1325 disposition of surplus 1326 trees, etc. , cutting, damages for 7170 appeal 1827 jurisdiction of district court 1327 civil conspiracy to commit 6540 TRESPASSING ANIMALS. See Estrays; Hogs; Sheep; Stallions. TRIAL, abortive 4392 ballot box 3950 calendar 4370 charge to jury 4384 conduct of 4383 • continuance of 4372 continuance of, costs 4908 court, by 4405 court, by, decision to be in writing 4406 court, by, facts found and conclusions of law to be separately stated 4407 court, by, findings of fact, waiver of 4408 fact, issues of 4369 instructions to jury 4384 instructions to jury, further 4390 jury, absent, adjourn, court may 4393 jury, admonition to, on separation 4387 jury, definition of 3938 jury, deliberation of 4387 jury, discharged by final adjournment 4393 jury, drawing 3956 jury, for 4378 jury, polling 4394 jury, retiring may take papers 4388 jury, sickness 4391 jury, summoning 3960-3966 justices' courts 4711-4720 new 4439-4403 number twelve * 3939 order of 4383 place of 4120-4128 postponement of 4372 postponement of, costs 4908 testimony, clerk to take down if no short-hand writer 4929 verdict 4396 verdict, form of 4394 verdict, informal, correcting 4395 verdict, sealed 4398 view by jury 4386 charging jury : 7886 clerk to prepare calendar 7788 court may advise jury to acquit 7877 court to decide questions of law arising during 7883 defendant entitled to speedy and public 7355 defendant entitled to two days to prepare for 7790 defendant on bail appearing for, may be committed 7888 destroying evidence to be used upon 6502 discharge of one defendant, effect of 7863 discharge of one defendant to be witness 7861 expense of trial where counties joined for judicial purposes . . 7909 1072 GENERAL INDEX. TRIAL — Continued. for abortion and seduction, evidence on 7869 for bigamy, evidence on 7867 for conspiracy, evidence on 7865 for forging bank bills, etc., evidence on 7868 for libel, province of jury 7884 for murder, burden of proof devolves on whom 7866 for obtaining money under false pretenses, evidence on 7870 if district attorney fails to attend , 7889 impeachments, where commenced 7426 indictment, where found 7602 in justices' courts, how conducted 8292 jurisdiction, court may discharge jury for want of 7872 jurisdiction, discharge of jury where offense committed in the territory 7874 jurisdiction, discharge of jury where offense committed out of territory , 7873 juror becoming incapacitated 7882 jury, decision of, where made 7887 jury permitted to separate 7880 jury to be admonished 7881 knowledge of juror to be declared ... 7879 mode of 7781 must be under indictment 7600 number of counsel, who may argue on 7857 of escapes from territorial prison, expense of 6458 of officers, by accusation 7601 order of 7855 postponement of 7795 preparing forged instrument for use upon 6501 presumption of innocence 7858 preventing attendance of witness upon 6503 reasonable doubt as to degree of guilt 7859 rules of evidence on 7864 separate 7860 uncorroborated testimony of accomplice not sufficient to con- vict 7871 view of premises by jury, how conducted *. 7878 when order of, may be departed from , 7856 when presence of defendant necessary on 7782 when defendant to pay costs 8441 See Evidence; Examination. TRIAL BY JURY. See Jury. TROUT, catching except with hook and line 7191 taking by net, etc 7193 taking other than by hook 7191 TRUST DEEDS, recorder to furnish list of, to board of equaliza- tion 1481 TRUSTEES, assessment of 1439 of schools. See Schools. on dissolution of corporations 2648 suing without beneficiary 4092 suit, by or against, costs 4910 offering bribe to member of board of 6528 when guilty of embezzlement 7068 TRUTH may be given in evidence in libel 6740 UNCERTAINTY, demurrer for 4174 GENEBAL INDEX. 1Q73 UNDERTAKING. See Bonds; Sureties; Appeals; Attachments, etc. deposits in justices' courts instead of 4773 territory or officer a party, none required 4935 of bail, forfeiture of 8126 of witness to appear $154 UNFAIR ADVANTAGE. See Advantage. UNITED STATES, term denned 16 may include District of Columbia and territories . .. . . 16 UNLAWFUL contracts. See Contracts. transfers. See Transfers. UNLAWFUL ASSEMBLY denned 6953 magistrate refusing or neglecting to disperse "... 6956 punishment of 6954 remaining at, after warning to disperse 6955 See Riot. UNNECESSARY RESTRAINT. See Imprisonment. UNRECORDED INSTRUMENTS valid as between parties and those having notice 3004 UNSOUND MIND. See Insanity; Persons of Unsound Mind. USAGE, meaning of words fixed by 15 USURPATION OF OFFICE OR FRANCHISE, action for '. '. 4612 arrest of defendant 4513 damages 4616 generally \ \ . .4617-4619 judgment 4614 name of person entitled to office to be set forth in complaint. . 4613 quo warranto abolished , ' 46H relator, security by 4519 scire facias abolished 46n several claimants, rights of, may be determined in one action 4617 USURPATION of public office 6388 USURY. See Interest. VACANCIES in office 431 in legislature, how filled 433 how filled when not otherwise provided for 434 during session of legislature \ 435 duty of persons appointed to fill \ 436 certain, filled only on petition .... . 1765 in county offices, how filled . . .. . 1821 in office of sheriff, when by operation of law \\\\ 1881 in office of judge does not affect proceedings ......: 3922 VAGRANTS, who are and punishment of 7208 VALUABLE CONSIDERATION. See Consideration. VALUE full cash, defined 1405 full cash property assessed 1425 of dogs as property / [ 7052 of property, to fix degree of larceny 7048 VARIANCE, generally '."..'.' 4225-4231 detaining defendant after acquittal on ground of 7932 in indictment and proof 7760 verdict, when defendant acquitted on ground of 7919 VENDOR AND VENDEE. See Conveyances; Purchaser. ' lien of vendor 344O vendee's lien 3444 when deemed to waive lien 3441 extent of lien 3442 69 1074 GENERAL INDEX. VENIRE. See Jury. defacing or adding names to list of jurors 6467 See Poind. VENUE. See Place of Trial. generally 4120 VENUE IN CRIMINAL CASES, application for change of 7769 application for change of, when granted 7770 authority of court to which cause removed 7773 clerk to certify costs to auditor of county from which re- moved 7774 change of, when may be had 7768 order for change of 7771 proceedings on change of 7772 trial for embezzlement of goods removed from county ........ 7488 when granted in justices' courts 8285 when granted, papers to be transmitted 8286 when offense is commenced out of territory 7481 VERDICT, generally 4396 by three-fourths of jury ... 4389 when prevented, cause may be again tried 4392 sealed verdict may be directed by court to be brought in 4393 how declared, form of 4394 jury may be polled 4394 when informal, proceedings thereon 4395 general and special, defined 4396 when a general or special, may be rendered 4397 in actions for recovery of money, or establishing a counter- claim 4398 in actions for recovery of specific personal property 4399 entry of 4400 in actions for forcible entry and detainer 5106 in actions to quiet title 4538 in proceedings against joint debtors 4865 in proceedings to contest probate 5310 findings of referee, a special verdict 4419 causes for vacation of 4439 exceptions to, what must specify 4428 is part of judgment roll 4456 when may be reviewed on appeal 4824 appearance of defendant at rendering of 7916 as to some defendants 7927 attempt to influence juror in giving 6433 judgment on special 7923 jury to find a degree of crime .. 7925 may be general or special 7918 no conviction unless by 7358 of acquittal, defendant to be discharged on 7932 of acquittal, on ground of insanity, proceedings on 7934 of coroner's jury 8381 of lesser offense or attempt 7926 on question of insanity 8197 polling the jury 7930 proceedings on general or special 7933 promise to give a certain 6434 recording 7931 return of jury 7915 special 7920 special form of • 7922 GENERAL INDEX. 1075 VERDICT— Continued. special, how rendered 7921 taking, manner of 7917 when court may direct reconsideration of 7928 when judgment may be given on informal 7929 when special defective 7924 VERIFICATION, generally 4199-4202 VESTED INTEREST, future denned 2830 VETO by governor 152 VIEWERS, ROAD. See Roads, etc. VIEWING OF PREMISES by jury 4386 when and how conducted 7878 VITRIOL, throwing upon the person of another 6731 VOLUNTARY MANSLAUGHTER. See Manslaughter. VOTERS, registration of 502-5096 VOTES, VOTERS, AND VOTING. See Election. alteration of by election officer 6359 deceiving elector who cannot read 6364 illegal attempt to 6357 illegal voting a felony 6356 offering bribe to executive officer for 6380 of member of legislature, offering bribe to procure 6412 procuring another to vote illegally 6358 VOUCHER. See Claim. of county treasurer, subject to inspection 1860 VULGARITY, disturbing peace by 6959 WAGER. See Betting. on election 6366 WAGES. See Lien; Services. what exempt 4480 of minor, when paid to him 2533 WAIVER, jury trial, of 4405 objections not taken by demurrer or answer 4178 summons of 4139 person of unsound mind cannot lose rights by 2412 of objections to offer of performance 3231 of option as to delivery of goods 3249 of notice of sale of pledged property 3421 of demand by pledgor or debtor 3422 of presentment and notice 3506 of protest 3507 WARD. See Guardian and Ward. WARRANT, CORONER'S, form of .... 8385 service of 8386 when to issue 8384 WARRANTIES, lineal and collateral, abolished 2937 WARRANT OF ARREST. arrest made with 7546 arrest made without 7552 commitment for examination made by indorsement on 7570 defendant to be taken before magistrate without delay 7529 depositions, what to contain 7517 duty of officer executing 7532 examination of complainant and witnesses on information . . . 7516 for fugitive from justice 8417 form of 7516 if for felony, defendant must be taken before magistrate is- suing 7525 1076 GENERAL INDEX. WARRANT OF ARREST— Continued. issued on application for writ of habeas corpus 8364 must issue, when commission of offense feared 7382 must issue, when offense has been committed 7518 must state what, when offense triable elsewhere 7531 must specify what 7520 proceedings, when defendant taken before magistrate other than the one issuing 7530 procuring maliciously l 6533 service by telegraph 7554 service by telegraph, how authorized 7553 to be directed to and executed by peace officer 7521 to what peace officer directed 7523 when and how executed in another county 7524 when must issue, on complaint, form of 8281 WARRANTS, controller to draw 205 in what order drawn 208 " warrant book" to be kept by commissioners 1754 drawn by order of commissioners 1781 when and how treasurer of county to pay 1840 how paid 1843 not paid for want of funds 1844 interest bearing, to be paid first 1845 notice of redemption 1845 what, entitled to preference 1847 where not represented according to notice 1848 treasurer to note on, interest paid 1849 county auditor to draw 2005 such, to specify what 2006 county, to be numbered 2009 forgery of territorial or county 7028 WARRANT, SEARCH. See Search Warrant. WARRANTY. See Quality; Quantity. of title to personal property |245 on sale by sample ^246 of other marks on goods ^247 of provisions for domestic use ^248 of sale of good will ^246 implied in negotiable instrument 347b WASTE, damages 4169 execution, after 4544 executors may be restrained aaaa ^^^::::::::::::::::::::::::::::::::::.::::::::::«8o^ guardians, by * 4odU joint tenants, by ~™ tenant, by &™ tenant in common, by *!?£;: WATER, rights to, how acquired »™ appropriation must be for use jjj*™ point of diversion may be changed j*i5/ changing the use qaplq may be turned into natural channel »Jj» priority of right to . jj*2j notice of appropriation |j™ diligence in appropriation ~jjj* "completion" defined jj*2j! doctrine of relation applied to diD* GENEBAL INDEX. 1077 WATER— Continued. forfeiture of right to 3164 rights of present claimant 3166 rights heretofore acquired 3165 ditch, injury to 7162 running water on highway 7139 stealing ' 7059 taking from ditch without authority 7137 willfully poisoning 6861 Water districts, election of water master 3200 bond, deputies, etc 3200 master of private ditch 3201 duties of master 3202 repair of ditch, expenses, etc 3203 head gates and dams 3204 opening gates or diverting water 3205 WATER AND CANAL CORPORATIONS. See Corpora- tiofis WATER PIPES, injuring or obstructing 7171 WAY, RIGHT OF. See Right of Way. WAYS, boundaries by. 2883 private, injuring 7133 WEAPON, DEADLY. See Deadly Weapon. WEIGHT to the ton in selling hay, etc 7109 See False Weights WEIGHTS, of bushels 1250 perch of stone 1251 See False Weights and Measures. WIDOW, legacy to, when chargeable with debts of testator 5754 inheritance by. See Succession. WIFE. See Husband and Wife; Harried Women. WILD ANIMALS. See Game. WILLFULLY denned '. 6301 WILLS denned 16 forgery of 7028 includes codicils 16 future interest may pass by 2834 liability of persons acquiring property by 2937 who may make 5725 married women may dispose of separate property by 5726 written, how executed 5727 olographic will defined 5728 witness must state residence 5729 competency of subscribing witness 5730 execution and construction of prior, not affected by these statutes 5759 mortgage on property devised, how satisfied 3363 child born after, takes share 5743 children unprovided for, when succeed 5744 share of child born after, out of what taken 5745 death of devisee before testator 5747 when devise does not lapse by death of devisee 5747 devises, how construed 5748 subsequently acquired title passes by 5749 restriction on power to devise to charitable use 5750 delivered to probate court, to be 5296 evidence of, what required 6006 includes codicil 16 1078 GENERAL INDEX. WILLS — Continued. probate of ; 5290-5331 Interpretation and effect of, by what law governed 5760 Legacies and general provisions, order of sale in case of intestate 5751 property, how applied to payment of ... 5752 how applied to payment of debts 5753 to kindred, chargeable only after others 5754 specific, title passes by 5755 when due '. 5756 executor not to act till qualified ' 5757 execution and construction of prior wills 5759 the law of what place applies 5760 ^Revocation of, of written will 5731 evidence 5732 of duplicate 5733 subsequent, does not revive prior will , 5734 by marriage and birth of issue 5735 by marriage of testator 5736 by marriage of testatrix 5737 contract to sell property disposed of 5738 incumbrance on property disposed of 5739 conveyance, when not 5740 conveyance, when 5741 revokes codicils 5742 after-born child unprovided for to succeed 5743 children unprovided for 5744 share of unprovided for child 5745 advancement to child 5746 death of devisee being a relative, during testator's lifetime . . . 5747 provisions relating to, apply to what wills 5758 Nuncupative, need not be in writing 5727 See Estates of deceased persons. WINDOWS, may be broken open to retake person after escaping 7560 WITHDRAWAL of plea 7757 WITNESS. See Evidence. examination in contested election 1 required to attend on legislature 145 service of subpoena on 146 punished by legislature for contempt 147 arrested by order of legislature for non-attendance 148 not held to answer criminally on his own testimony 149 refusal of, to testify 149 at examination of insane 770 assessor may examine, in relation to taxable property 1432 county boards of equalization may examine 1479 board of commissioners may subpoena 1768 bound to obey subpoena 1769 before commissioners, not prepaid 1770 recording of instruments proved by other than subscribing . . . 2967 oath of credible, necessary in taking acknowledgments 2955 subscribing, to be personally known to officer taking proof . . . 2965 to prove, what 2966 handwriting of, when proved 2967 subscribing, to prove, what 2968 to will, necessary •• • 5727 to will 5729 not necessary to olographic will 5728 at coroner's inquest 8379 GENEEAL INDEX. 1079 WITNESS— Continued. bribing. 6504 certain, may be required to give security 7586 compelling attendance of 8148 witnesses for people cannot demand fees in advance 2146 compelling attendance of, residing out of county 8152 defendant cannot be compelled to be, against himself 7357 defendant, rights of , as to • 8148 deposition of, to threatened offense 7381 deposition of, to committed offense 7516 deposition of, to be read to defendant on examination 7571 discharging one of several defendants to be 7861 disobeying subpoena 8153 effect of discharging one of several defendants to become 7863 examination of defendant's 7573 examination of, must be in presence of defendant 7572 exclusion and separation of 7574 experts as, on trial for forgery 7868 foreman of grand jury to administer oath to 7633 grand juror, challenge to, on ground that he is 7609 incompetency of, defense to perjury 6482 juror, when used as a 7879 names of, to be indorsed on indictment 7668 on failing to appear, undertaking forfeited 8154 on refusal to give security may be committed 7587 on trial of challenge, juror may be examined as 7841 payment of expenses of , 8153 preventing attendance of 6503 procuring to swear falsely 6487 receiving or offering to take bribes 6505 . refusing to attend and testify before legislative committee 6414 refusing to be sworn 6529 security for appearance of, when required 7585 stating what he does not know to be true 6485 suspension of civil rights is not bar to becoming 7241 temporary removal of 8155 testimony, how taken and authenticated 7576 testimony to be reduced to writing, when 7576 testimony of, may be read against him in perjury 6308 to a duel, privilege of 6716 to be examined conditionally 8160 to determine question of continuing insanity - 7934 to gambling, privilege of 6852 unable to give security, may be examined conditionally 7588 undertaking of, to appear, when and how taken 7584 when husband and wife are incompetent 8142 when defendant is incompetent 8143 when need not know his testimony is material 6483 who are competent 8141 fees of, in district court 6139 fees of, in probate and justices' courts. . 6140 See Depositions; Evidence; Examination; Testimony. WOMEN. See Female; Married Women. WOOD, defacing marks upon 6866 injuring, growing upon land of another 7158 WOODS, setting fire to 6921 See Trees-, Timber. 1080 GENERAL INDEX. * WORDS. See Definitions. giving joint authority, how construed 14 construction of 15 of inheritance, not necessary to pass fee 2905 construction of, used in indictment . . . 7684 "WORKS OF ART AND LITERATURE, injuring or destroying. 7170 WRIT. See Attachment; Execution; Summons-, etc. defined 16 issuance generally v 3816 seal required 3875 service, bv telegraph 4895 WRITING. See Oral Statements. defined 16 application for reduction of taxes to be in 1477 appointment of deputies in 1819 direction to sheriff . . . 1881 marriage settlement ' 2509 transfer without, when : 2903 transfer in, called grant 2904 transfer of real property to be in 2920 will 5727 non-negotiable instrument in, transferable 3600 debtor, on payment, entitled to receipt in 3230 contract prevented by fraud from being put in, enforced when 3225 in contract controls printed parts 3228 power of attorney to execute personal mortgage 3391 execution of, setting forth, etc 4199-1202 generally. See Evidence. includes printing 16 inspection of 4875 WRIT OF HABEAS CORPUS. See Habeas Corpus. YEAR school, when commences 707 f J -i